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HomeMy WebLinkAbout2004-3330.Boulet.16-10-18 Decision Crown Employees Grievance Settlement Board Suite 600 180 Dundas St. West Toronto, Ontario M5G 1Z8 Tel. (416) 326-1388 Fax (416) 326-1396 Commission de règlement des griefs des employés de la Couronne Bureau 600 180, rue Dundas Ouest Toronto (Ontario) M5G 1Z8 Tél. : (416) 326-1388 Téléc. : (416) 326-1396 GSB#2004-3330, 2004-3605, 2010-0884, 2010-1084, 2010-1660, 2010-2063, 2011-0070, 2011-3224, 2014-1070, 2014-1071 UNION#2004-0719-0017, 2005-0719-0001, 2010-0719-0012, 2010-0719-0013, 2010-0719-0026, 2010-0719-0038, 2011-0719-0031, 2012-0719-0003, 2014-0719-0006, 2014-0719-0007 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN Ontario Public Service Employees Union (Boulet) Union - and - The Crown in Right of Ontario (Ministry of Community Safety and Correctional Services) Employer BEFORE Nimal Dissanayake Vice-Chair FOR THE UNION Amanda Montague-Reinholdt Raven, Cameron, Ballantyne & Yazbeck LLP Counsel FOR THE EMPLOYER Stewart McMahon Treasury Board Secretariat Legal Services Branch Counsel CONFERENCE CALL October 14, 2016 - 2 - Decision [1] On April 21, 2016, the Board convened in Kenora, Ontario, to deal with a number of grievances filed by Mr. Don Boulet. Through mediation all grievances were resolved through the execution of the following Memorandum of Settlement (“MOS”): Memorandum of Settlement WHEREAS at all material times the Grievor was employed as a Correctional Officer at Kenora Jail. AND WHEREAS the Union filed the above noted grievances alleging that the Employer had in various ways failed to properly accommodate him, pay his benefits, or had handled his attendance in a discriminatory, or arbitrary manner. AND WHEREAS the Parties wish to resolve all issues arising out of the aforementioned grievances and more generally all issues arising out of the Grievor’s employment to the date of this Memorandum of Settlement. NOW THEREFORE the Parties agree as follows: 1. The Grievor shall attend for an Independent Medical Examination (IME) to be conducted by an orthopaedic surgeon for the purpose of assessing Mr. Boulet’s limitation and restrictions, if any. The Parties agree that the examination is to be arranged as follows: . Within 2 weeks of the signing of this MOA the Employer shall provide the Union’s counsel with a list of three surgeons and their C.V. selected by one of its service providers. . Within 2 weeks of receipt of the names the Union’s counsel will advise the Employer’s counsel which of the three surgeons will conduct the IME. . Failing agreement on selection of the surgeon the vice chair shall select a surgeon from amongst the three proposed by the Employer, unless the - 3 - vice chair determines that none of the three are acceptable, in which case the process will be repeated. . Within two weeks of the selection of the surgeon the Employer’s counsel will provide the Union’s counsel with the proposed questions. . Within two weeks of delivery of the questions the Union’s counsel will provide to the Employer’s counsel any proposed alterations, deletions or additions. . Failing agreement on the questions the vice chair shall settle the questions to be posed to the surgeon. . The Grievor shall execute a release authorizing his current and former family doctor and his physiotherapist with all the clinical notes and records relevant to an assessment of his physical limitations and restrictions to the Employer’s service provider, said clinical notes and records to be from six years prior to the signing of the MOS to date. . Following delivery of the IME report the Employer shall arrange for an assessment by an occupational therapist. . The Parties agree that the questions posed to the surgeon and the OT will include the suitability of the current chair in the module, and exercise shacks and the placement of the monitors in the module. . In the event that the surgeon opines that the Grievor has a temporary restriction or limitation the Parties agree that the Grievor will be reassessed by the Surgeon in the event the grievor maintains that the restriction or limitation has continued beyond the period estimated by the surgeon. . For clarity the parties agree that neither party will be bound by the findings of the IME or the OT, but that either party may rely on the reports in the event of a grievance as described below. 2. At such time as the Grievor is working full 8 hour shifts which are scheduled on 9-5 on a Monday or Friday the Employer shall schedule the Grievor for those statutory holidays which fall on Monday to Friday. - 4 - 3. The Employer agrees that it will manage the Grievor’s attendance within the Attendance Support Management Program for a period of one year from the date of the MOS, with the Grievor being placed at Level 0 as of the date of the MOS. For clarity the Employer agrees that provided the Grievor provides medical documentation stating that his current reduced work schedule is attributable to a disability these partial absences will be bundled. Following the expiration of one year the Employer may exercise its discretion to manage the Grievor’s attendance outside of the program. In the event of a dispute between the parties regarding the Employer’s decision to manage the Grievor outside of the Program the matter will be referred to the Vice-Chair for determination. 4. The Employer shall pay to the Grievor the sum of fifteen thousand dollars ($15,000) as damages in settlement of the Grievor’s claims of discrimination and harassment, and failure to accommodate which sum shall be paid without deductions. 5. The Employer will make best efforts to pay the amounts provided for in paragraph four within sixty (60) days of the execution of this settlement. 6. The Grievor agrees that the payment of any and all income tax resulting from the payment in paragraph four is his sole responsibility. The Grievor further agrees to save harmless and indemnify the Employer from and against all claims, charges, taxes, penalties or demands which may be made by the Minister of National Revenue requiring the Employer to pay income tax, charges, taxes or penalties under the Income Tax Act (Canada) in respect of income tax payable by the Grievor in excess of income tax previously withheld and in respect of any and all claims, charges taxes or penalties and demands which may be made on behalf of or related to the Employment Insurance Commission and the Canada Pension Commission under the applicable statutes and regulations with respect to any amounts which may in the future be found to be payable - 5 - by the employer in respect of the above mentioned payment to the Grievor. 7. The Union and the Grievor withdraw all outstanding grievances. 8. The Grievor and the Union acknowledge that this Memorandum of Settlement constitutes full and final settlement of any and all claims, complaints, grievances or actions that the Grievor has or may have against the Employer, its representative, employees and officials whether under any statute, regulation, policy, contract or at law, including but not limited to the Public Service of Ontario Act, the Crown Employees Collective Bargaining Act, the Employment Standards Act, or complaints under the Ombudsman Act,, the Ontario Human Rights Code and any other employment-related statute arising out of the Grievor’s employment to the date of the MOS. For clarity this release will not affect the ability of the grievor to challenge on a go forward basis any accommodation issues which may arise following the delivery of the IME or the OT report. 9. This written Memorandum of Settlement represents the complete settlement agreement between the Parties in relation to the above noted grievance and any related matters. The Parties agree and acknowledge that they have not made any verbal or other agreements beyond what is contained in this written settlement. 10. By signing this Memorandum of Settlement the Grievor acknowledges that the terms of the settlement have been fully explained to him by the Union’s counsel and that he fully understands the terms of the Memorandum of Settlement. 11. The parties agree that the terms of the agreement are to remain confidential except where required by law, or for the purposes of implementation, save and except his spouse and legal and financial advisors. - 6 - 12. The Parties agree that this settlement is made without any admission of wrongdoing on any Party’s part. 13. The Union and the Employer agree that this settlement is made without prejudice and without precedent to any other matter between them, except with respect to the enforcement of the terms of this Settlement. 14. The Parties agree that Vice-Chair Dissanayake is seized with jurisdiction to determine any and all disputes between the parties as to the implementation or interpretation of this agreement. [2] The Board convened by way of teleconference on October 14, 2016 at the employer’s request. During this teleconference, employer counsel claimed that while the employer had complied with its obligations under the terms of the MOS, including the payment of $15,000 as damages, the union and the grievor were in breach of the MOS. In particular, it was alleged that the grievor had failed to meet the time limits for responding about his choice of the surgeon to conduct the IME. [3] Counsel alleged that the grievor had deliberately used excuses to stall the process after receiving the terms negotiated in his favour, including receipt of $ 15,000 in damages in May 2016. Counsel submitted that the Board should declare a breach of the MOS on the part of the Union and the grievor, and order the grievor to repay the amount of $ 15,000. Union counsel disagreed. She pointed out that the MOS provides for a process to be followed if the parties are unable to agree on the surgeon, and it should be followed. [4] Employer counsel replied that the process set out in the MOS would be appropriate where the parties attempt in good faith to agree on a surgeon, but fail. In this case the grievor had acted in bad faith and deliberately avoided compliance with his obligations under the MOS. - 7 - [5] The employer has not challenged the union’s position that two of the three surgeons proposed by it are not acceptable. Its position is that the grievor’s refusal to accept the surgeon in Thunder Bay is an unjustified excuse advanced in bad faith to not comply with the MOS. He pointed out that the employer had not been provided particulars relating to any discussions the grievor may have had with his treating medical professionals to support his position that his medical restrictions prevent him from taking a flight to Thunder Bay because the flight to and from Kenora has a brief stopover. [6] Having regard to the facts and the submissions, I am of the view that before considering the appropriateness of the relief sought by the employer, the grievor should be afforded an opportunity to present his position as to why he has not been in compliance. To deny that opportunity would be to deny natural justice. Moreover, the MOS contemplates that the Vice-Chair would determine the acceptability of the proposed surgeons if the parties fail to agree. I am not able to make that decision in a vacuum without any evidence. Therefore, the Board orders as follows: (1) No later than Monday October 31, 2016, union counsel shall provide to the Board, with copies to employer counsel, the following: (a) All evidence it relies on, with supporting documentation, including any medical evidence, as to the reason(s) why the surgeon in Thunder Bay is not acceptable to the grievor. (b) All evidence it relies on, with supporting documentation, including any medical or other evidence, as to the reason(s) why the requirement in the MOS to the effect “Within 2 weeks of receipt of the names, the union’s counsel will advise the Employer’s counsel which of the three surgeons will conduct the IME”, was not complied with. [7] A further hearing by teleconference shall be convened on Monday November 14, 2016 at 9:30 a.m. at which, the employer may present its position, having regard to the information submitted pursuant to the orders made herein, and submissions will be received in that regard, and a ruling will be issued. - 8 - [8] The Board remains seized. Dated at Toronto, Ontario this 18th day of October 2016 Nimal Dissanayake, Vice Chair