Loading...
HomeMy WebLinkAbout1991-3022.Bovey.93-07-08 EMP/~OY£.,?. DE LA CROWN EMI)LO YEES DE L'ON TARtO ' GRIEVANCE c,OMMISSlON DE / / SETTLEMENT REGLEMENT BOARD DES GRIEFS ~80 OUNI,..3AS STREET WEST, SUITE 2100, TORONTO, ONTARIO, M5G ~Z8 TELEPHONE/TELEPHONE; (4~6),.326-~3~ 180, RUE DUNDAS OUEST, BUREAU 2100, TORONTO {ONTA~IOJ. MSG 1~.$ FACSIMILE/TI~L~COP.~E : (416) 326-13! · . 3022/91 IN THE MATTER OF AN ARBITRATION' Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE S~.TTLEMENT BOARD BETWEEN OPSEU (Bovey) Gri evor The Crown in Right of Ontario (Ministry of Health) Employer BEFORE .R. Kennedy Vice-Chairperson M. Vorster Member D. 'Montrose Member FOR THE 'M. Bevan GRIEVOR Grievance Officer Ontario Public Service Employees union FOR THE M. Contini RESPONDENT Counsel Mathews, Dinsdale & Clark' Barristers & Solicitors HEARING February 24, 1993 June 21, 1993 SECOND INTERIM AWARD Our first Interim Award in this matter, dated November 16, 1992, recorded the terms of a settlement reached by t,he parties after the hearing had commenced and some evidence had been received. At that point it was apparent that a crucial issue on this arbitration was whether or not the .Grievor's underlying medical Condition of being subject to a familial tremor made it inappropriate for the Grievor to continue in his empj.oyment as an Ambulance Driver/Attendant. At the h~aring the Union filed two letters of opinion from medical practitioners to the effect that the medical condition was not an impediment to the Grievor's performance of his duties. One of those letters was dated August 26, 1992 and came from Dr. John D. Brown, a neurologist at the Victoria Hospital in London, and the other came from a Dr. Chivers, the Grievor's personal doctor, who practices in Simcoe, Ontario. After d~scussions between the parties, the settlement ·referred to in the first Interim Award was reached.' That settlement in paragraphs 4 and 5 provided as follows: 4. If the medical specialist opines that Mr. Bovey is capable of performing the duties and responsibilities of an ambulance attendant without risk or impediment because of his medical 'condition, the Company will reinstate Mr. Bovey with compensation for lost wages, subject to his duty to mitigate if-raised. The proceedings herein will then be terminated. 5. If the medical specialist opines that Mr. Bovey is not capable of performing the duties and responsibilities of an ambulance attendant without risk or impediment because of his medical condition, the proceedings herein will continue. The report of the medical specialist will then be admissible in evidence before the Board, subject to either party's right to ~require the attendance of the medical specialist to give viva voce evidence, with respect to Mrt Bovey's medical condition and any other issues relevant to these proceedings. At the request of the parties this panel of the Board reconvened February 24, 1993, at which time we were provided with an opinion letter from Dr: John W. Crosby, a medical specialist, who had been recommended by'the Employer and · agreed to' by the Union. Dr. Crosby has impressive credentials in the area of emergency .health care, has practiced and taught in that area, and is also an active family physician. In our vieW, he has excellent qualifications to evaluate both the Grievor's medical condition and its relationship to working as an Ambulance Driver/Attendant. Dr. Crosby's opinion letter, dated January 7, 1993, indicates that he had indeed been given the complete background information that led to this arbitration, and his letter made reference to other aspects of' the factual circumstances that were not related to the specific issue in paragraph 4 of the Settlement Agreement upon which he had been requested to opine. He also ~rovided his views on what might have been a fair solution for. the Grievor in all of the circumstances. Again, that was not an issue upon which his opinion had' been sough~. His letter did contain the following paragraph with respect to the specific issue that is referred to in paragraph 4 of the Settlement Agreement: I agree with his neurologist that.this tremor, by itself, is not an impediment to ambulance service. His reaction under stress is more difficult to fairly assess. In the-context of the letter as a whole, this Board expressed its concern to the parties as to whether or not it was implied from that paragraph that there could be a relationship involving the medical condition of the tremor in combination with stress that would be material to the Grievor's ability to perform the duties and responsibilities of a Driver/Attendant. It was the position of counsel for the Employer at that time that Dr. Crosby's letter did not constitute a sufficient opinion within.the parameters of paragraph 4 of the Setl{lement Agreement and 'that the hearing should Simply proceed. We ruled at that time that if the parties considered it appropriate, they could clarify the terms of Dr. Crosby's opinion or, in the alternative, the hearing should proceed. We subsequently reconvened, and at that time we received a further letter from Dr. Crosby dated March 2, 1993. In that letter Dr. Crosby stated: I did not find any connection between stress and the tremor, and he was able to assemble the ambu-bag in spite of his tremor. I don't think his medical condition is any impediment to his ambulance service. It{ remained the position of counsel for the Employer that on the basis of the two letters there still continued to be.doubt as to th'~ Grievor's capability ?f performing the job and that the appropriate resolution .was to direct that the hearing proceed. It was strongly the position of the Union that this .matter had gone on long enough and that the Board was now in possession of the unqualified opinion of Dr. Crosby that fully met the requirements of paragraph 4 of a Settlement Agreement that had been freely entered into by the parties. Mr. Bevan argued that originally two medical letters had been filed to the effect that the Grievor's medical condition did not prevent the Grievor from performing the duties and responsibilities of his job. - After hearing evidence, this issue became the one upon. which the parties focused, and they reached the Settlement Agreement recorded in the Interim Award. The Empl0yer then suggested the appropriate medical specialist, the Union agreed and the Grievor attended for examination. The medical opinion that followed that examination agreed completely with the letter of the neurologist that had previously been filed but contained other language that created some uncertainty as to wha~ Dr. Crosby was saying. That' uncertainty has been completely clarified in the subsequent letter fr°m Dr. Cr6sby and pursuant to the settlement, the Grievor was now entitled to be reinstated with compensation. We agree with the Union arguments in this matter. After hearing some of the evidence, the parties, in full awareness of aI~ potential issues and the background factual circumstances, reached a settlement that left outstanding only one issue related to.the Grievor's medical condition. We are now in possession of two letters that do give us Dr. Crosby's opinion that the Grievor's medical condition is not a risk or impediment to the Grievor's capability of performing the duties and responsibilities of an Ambulance Driver/Attendant. That was the sole .issue left open in the settlement and was the s01e issue referred by the parties to Dr. Crosby. The fa~t that he has chosen to comment on other aspects of the matter does not, in light of his second letter, detract in any way from his. specific opinion with respect to the Grievor's medical condition. Those othe~ aspects were considered and covered by the settlement. Accordingly, the provisions of paragraph 4 of the Settlement Agreement have been met, and the Grievor is entitled to be reinstated with compensation. We remain seized with respect to the computation of compensation -7- or any other matter relating t~ the implementation of this award should the parties not be able to agree upon same, DATED this srl~day of July, 1993. , ~~ Ross L. Kennedy- Vic~ .Chairperson M. Vorster - Member D. Montrose - l~lember