HomeMy WebLinkAbout1993-0711.Tran.95-04-10
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! "--- = / ~:,rY ':;;:~"",f'~,','" ONTARIO EMPLO,YES DE LA COURONNE
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CROWN EMPLOYEES DE L'ONTARIO
'. GRIEVANCE COMMISSION DE
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1111 SETTLEME,..T REGLEMENT
BOARD DES GRI~FS
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180 DUNDAS STREeT WEST SUITE 2100, TORONTO, ONTARIO, M5G lZ8 TELEPHONE/TELEPHONE (416) 326-1388
~ 180, RUE DUNDAS OUEST BUREAU 2100, TORONTO (ONTARIO) M5G lZ8 FACSIMILE ITELECOPIE (416) 326-1.396
GSB # 711/93
OPSEU # 93E026
IN THE MATTER OF AN ARBITRATION
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Under
THE CROWN EM~LOYEES COLLECTIVE BARGAINING ACT
Before
THE GRIEVANCE SETTLEMENT BOARD
BETWEEN
OPSEU (Tran)
Grievor
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The Crown in Right of ontario
(Ministry of Consumer & Commercial Relations)
Employer
BEFORE M Gorsky Vice-Chairperson
J. Carruthers Member
M. Milich Member
FOR THE C. Flood
GRIEVOR Counsel
Koskie & Minsky
Barristers & Solicitors
FOR THE D strang
EMPLOYER Counsel
Legal Services Branch
Management Board Secretariat
HEARING February 2, 1994
October 12, 13, 1994
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DEe I S ION
The Gr1evor was a Regular Part Time ("RPT") employee w1th the
classification of OAG 4 with the Ministry of Consumer and
Commercial Relations, Companies Branch, whose date of hire was
August 27, 1990. She filed a grievance on April 8, 1993, cla1ming
that she had been "dismissed without just cause, " and requested
"reinstatement with full compensation wi~hout loss of s;:-eniorityand
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benefits, to position of data input operator Monday to Friday 8
a.m. to 12 00 noon or comparable position with a.m. hours only "
At the opening of the hearing, counsel for the Employer
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indicated its position that the Grievor had abandoned her position
and that this had been so declared in accordance with the
provisions of s. 20 of the Public Service Act, and, accordingly,
the Board had no jurisdiction to deal with the grievance on its
merits.
The parties agreed that the Board would hear evidence and
reserve its decision on the preliminary objection until after
counsel had delivered their arguments.
Counsel for the Employer agreed to present evidence first.
The Grievor's unit (Personal Data Entry Processing Unit)
ceased to exist in July of 1992, and her position as a Data Input
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Operator also ceased to exist at that time. The collective
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agreement at the time provided no surplus rights for RPT employees
such as the Grievor At that time the Union and other RPT
employees similarly situated to the Grievor expressed their
concerns to the Employer about this situation. The Employer
recognized that there was a problem and entered into discussions
with the Union with a view to arriving at an agreement that would
furnish certain surplus rights to RPT employees
The letter to the Grievor, dated July 10, 1992, signed) by
Judith Wolfson, Deputy Minister, informing her that her position
was to be abolished (Exhibit 3) is as follows
Dear Ms. Tran
It is with regret that I must inform ,you that due to the on-
going organizational changes within the Companies Branch, your
position of Data Input Operator (Regular Part-time), will be
abolished.
Under the authority of Section 22 ( 4) of the Public Service
Act, you will be released from employment effective~ September
10, 1992.
I would like to take this opportunity to convey my
appreciation to you for the service which you have rendered to
the Ministry of Consumer and Commercial Relations. I wish you
every success ln the future
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Although discussions continued, no agreement had been reached
by the parties by September 10. 1992, when the end of the notice
period was reached in the case of the Grievor and other similarly
situated employees The Ministry found temporary work for affected
employees until negotiations were completed. By letter dated
September 10, 1992 (Exhibit 4) Carol D. Kirsh, Director,
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Reglstration Division; of the Ministry, wrote to the Grievor, as
follows
Dear Ms Tran
Further to the Deputy Minister's letter qf July 10, 1992,
this will advise you that your employment has been
extended.
Your last day as a RPT Corporate Data Input Operator in
the Corporate Services section of Companies Branch 1S
today, September 10, 1992. Tomorrow, please report to
Michael Singh at your regular reporting time and you will
be assigned interim data entry duties working the same
hours you worked previously
The assignment to these duties cannot last any more than
six (6) months from today's date and may be termlnated at
any time within six (6) months with appropriate notice.
An agreement (Exhibit 2) was executed on December 4, 1992, which
agreement is as follows
MEMORANDUM OF AGREEMENT
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BETWEEN
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MANAGEMENT BOARD OF CABINET
AND
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ONTARIO PUBLIC SERVICE EMPLOYEES UNION
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when \ part-time employees
The parties agree that regular
(RPT's) cannot be placed, in other RPT positions withln 40 km
in the same Mlnistry and consequently are to be laid off, the
RPT positions and tha incumbents shall be converted to full
time positions and, at\ the same time, the positions declared
surplus The affected RPT employees shall be assigned to
those full time positlons on a job sharing basis in accordance
with Article 7.8 of the Collective Agreement and 'will have
full access of [sic] the provisions of Article 24 of the
Collective Agreement. .
The parties agree that the provisions of Article 4 of the
Collective Agreement shall not apply in assigning surplus RPT
employees to job sharing positions under this agxeement
Any positions left vacant which are intended for staffing
following the placement of RPT'S ln accordance with this
memorandum will become part of the corporate surplus process
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The parties agree that this Memorandum of Agreement will
expire on December 31, 1993 and the parties further agree that
the matter of job security for RPT employees will be discussed
at the next set of negotiations.
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After Exhibit 2 was executed, the Grievor was assigned to a
vacant RPT position in accordance with its terms.
On December 22, 1992, Joanne Chudo, Human Resources Advisor,
Human Resources Branch, wrote to the Grievor, as follows (Exhiblt
7)
Dear Ms. Tran
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As you were advised in the Deputy Minister's letter of
July lO~ 1992, your position of Data Input Operator was
abolished. Your employment was extended in Carol Kirsh's
letter of September 10, i992.
I am delighted t9 advise you that an agreement has been
reached between the Ontario Public Service Employees
Union (OPSEU) and Management Board of Cabinet for regular
part-time employees. In accordance with this agreement,
you have been placed into the regular part-time position
of Data Entry Clerk Clerk, Office Administration 04 in
Companies Branch, effective January 1, 1993 The hours
of work for this regular part-time position will be 12 30
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a.m to 8 00 a.m., Tuesday to Thursday. Please report to
work on January 6, 1993 at 12 30 a m
, As this l.S a lateral placement, your sala.ry will remain
at the maXl.mum of the Office Administration 04 level In
addition, you are also entitled to a $.62 per hour shift
premium.
I would like to wish you success in your new position.
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The Grievor did not report to the night shift of the
Employer's Data Processing Unit in accordance with the notice to
her and later produced a note (Exhibit 8) from her medical doctor,
(R. Ling) dated January i, 1993 that stated
Patient complains of headache <;ind tearl.ng for night shift
and has asked for change of shift.
The Employer did not regard the doctor's note as sufficient to
establish the existence of a disability that required accommodation
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under the Human Rights Code
The Grievor then submitted a letter from Dr. Ling, dated
January 28, 1993 (Exhibit 9) which is as follows
I am the family- physician to the above. Ms. Tran has
seen me on January 6, 1993 and again on January 27, 1993
with headache, insomnia and moderate anxiety related to
her change of shift to the night shift. She complains
of inability to concentrate on her job which requires
speed - minimum of l5,00 KSPH alertness and calmness l.n
handling stressful situation, etc.
She's extremely frighful of being attack when going to
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and leaving from work. 1 understand her shift l.S from
12 30 a.m. to 8 00 a.m. This is compounded by a recent
assault on her cousin leaving work at 11 00 p.m. and is
still in hospital.
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She pleads to have her shift changed back to day as she's
confident of handling her work when her anxiety is
relieved and sleep returns.
Although the first paragraph of the doctor's letter appears to
indicate that the Grievor had commenced to work the night shift as
Entry Clerk, J
a Data l.n fact, this was not the case and she never
reported to work as required. \
By letter dated February 15, 1993 (Exhibit 10), Ms Kirsh
wrote to the Grievor as follows
Thank you for your doctor's certificate dated January 28,
1993 from your physician Dr. 'R.L.L. Ling>. Unfortunately,
this certificate also does not provide us with sufficient
information to make reasonable accommodation.
We are currently assessing your ability to perform your
position of Data Entry Clerk and l.n order to consider
what sort of accommodation you may reqUl.re., we need
further information with respect to your condition as it
relates to your ability to perform the duties of your
position Again, we are requesting that you take the
attached copy of your job specification and the Physical
Demands Analysis to your doctor and ask her/her to
provide us with a written assessment of
The prognosis for a full and complete recovery and
the date on which it l.S expected that you will be
able to resume the full duties of your position. ,
OR
An assessment of what you can and cannot do, so
that we can where possible, make reasonable
accommodation which will facilitate your earll.est
return to work.
Please provide this report to my attention by February
22, 1993 to ensure the continuation of your paid sick
leave benefits while we consider what accommodation might
be possible.
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The Grievor took Exhibit 10 to Dr Ling who endorsed on it in
handwriting on February 17, 1993 (Exhibit 11) the following
"Letter is sufficient to explain requirements, " after which the~e
is the signature of Dr. Ling.
On March 5, 1993, Sharyn D. Carlson, Director, Human Resources
Branch, Ministry of Consumer and Commercial Relations, wrote to the
Grievor as follows (Exhibit 12)
Thank you for providing your physician's assessment of
the accommodation you require in order to be able to
return to work. We are prepared to assign you work
during the day based on your doctor's recommendation.
However, as there is no requirement for a Data Entry
Clerk during the day we have assigned you to a different
type of work. All necessary training for this position
will be provided
The position you have been assigned to under ArticleqO 6
1.S that of Records Search Clerk (a copy of the job
description is attached) The position is classified at
the OAG 4 level (which is the same rate as you are
currently receiving) The hours of work are 9 OOAM to
5 OOPM three days a week (Wednesday, Thursday and
Friday)
Please ask your physician to review your new position
description and physical demands analysis to ensure that
there are no further constraints on your ability to
return to work
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Please report to Ms Sharon Lambe, Manager, Info Services,
2nd Floor 393 University Avenue at 9 OOAM, Wednesday,
March 10, 1993 and she will familiarize you with your new
duties.
Good luck in your new position,
The terms Data Entry Clerk and Data \
Input Operator were used
interchangeably, and we find that the position was in the nature of
copy typing at a computer terminal. (
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On March 9, 1993, Lynne Gottschling, Manage~, Employee
Relations, Human Resources Branch, Ministry of Consumer and
Commercial Relations, wrote to Melanie Moore, Negotiator, Job
Security Group, of the Union (Exhibit 14) as follows
Re Accommodation - Jenny Tran
This will confirm our telephone conversation of March 2,
1993 in wh1.ch we mutually agreed that, based on the
medical certificates provided by Ms Tran, that assigning
her to the regular part-time posit1.on of Records Search
Clerk (OAG 4) in Companies branch, Registration division
would provide reasonable accommodation Her assignment
to this position (which 1.S 3 days a week 9 00 AM to
5 OOPM) will accommodate her time requirements. As there
is no requirement for a Data Entry Clerk (her former
pos1.tion) during the day, she has been ass1.gned to a
different type of work (at the same salary level)
Arrangements have been made to provide the necessary
training to familiarize her with her new duties.
We appreciate the Union's agreement to waive the ,
requirement to post the position (under Article 60.6). I I
Please confirm that my understanding of our discussion
with regards to the treatment of this employee, accurately
reflects our agreement
Thank you for your assistance in this matter
On March 9, 1993, Ms. Moore .responded to E~hibi t 14, as
follows (Exhibit 15)
( Re Accommodation - Jenny Tran
I wish to confirm the receipt of your letter of March 9,
1993, in which you outline our telephone conversation of
March 2, 1993, and provide details of the accommodation
assignment of Jenny Tran.
We are in agreement to the accuracy of understanding in
regards to accommodating this employee
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Thank you for your time and cons*deration of this matter
The Grievor did not report to her new assignment as a Records
Search Clerk and Ms Kirsh wrote to her on March Il, 1993 (Exhib1t
16)
As you are aware, the ministry has accommodated your
requirement to work days based on your physic1an's
recommendations. Both the ministry and the Union have
agreed that ass1gn1ng you to the position of Records
Search Clerk provides reasonable accommodation to )
your
medical needs (please see attached letters [Exhibits 14
and 15]).
Unfortunately, you have failed to report to work and have
continued to be absent without notifying your manager and
without providing any reasons for your continued absence.
In our continuing attempt to be reasonable, and without
prejudice to our rights in this matter, we will consider
your absent days this week as paid leave.
However, you are directed to report to work next
I Wednesday, March 17, 1993 at 9 00 A M and we expect you
will fully discharge your duties and attend at work on a
regular basis.
As your manager, Ms Lambe, will be on vacation next
week, please report to Vito 10zzo, Supervisor,
Microfilming Operations. His telephone number 1S 596-
3753.
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By letter dated March 17, 1993 and hand del1vered by cour1er
(Exhibit 17), Ms. Kirsh wrote to the Grievor as follows
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Further to my letter of March 1l, 1993 in which you were
directed to report to work on Wednesday, March 17, 1993
at 9 00 a.m., I have been advised that you have failed to
report to work and you have not contacted management to
provide a reason for your continuing absence.
Under the circumstances, we have to consider you to be on
unauthorized leave of absence from duty effective March
17, 1993
Under the terms of section 20 of the Public Service Act,
"a public servant who 1S absent from duty without
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official leave for a period of two weeks or such longer
period as is prescribed 1n the regulations may by an
instrument in writing be declared by his Deputy Minister
to have abandoned his position, and thereupon his
position becomes vacant and he ceases to become a public
servant".
Unlessl you report to work by 9 00 a.m. Wednesday, March
31, 1~93,orcontact your supervisor, Ms Sharon Lambe by
Wednesday March 31, 1993 and provide a satisfactory
reason for your continuing absence, the Min1stry will
have no alternative but to declare that you have
abandoned your position.
On March 26, 1993, the Grievor's lawyer, Steven M. Fehrle,
wrote to Ms. Kirsh (which letter was delivered by cour ier ) , as
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follows (Exhibit 18)
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I have been consulted by Jenny Tran to assist her
regarding her employ~ent at the Companies Branch. As you
are aware, Ms !ran has been re-assigned to the position
of Records Search Clerk In your letter to Ms Tran dated
March 11, t993, you stated that this assignment "provides
reasonable accommodation to your medical needs "
Ms Tran has certain specific concerns about this
situation and has not received a satisfactory response
from either her employer or her union representatives.
I hope you wiil be able to respond to the following
points
1. Ms Tran insists that she has left numerous messages
with the secretaries or receptionists .of yourself
and Sharon Lambe pr10r to the deadline date you
gave her to report to the new position. These
calls were neither returned nor acknowledged She
therefore finds it quite unfair- that you state 1n
your letters of March 11 and March 17 that she has
failed to contact management
2. Ms Tran has no intentions of abandoning her job at
the Companies Branch. She has been a dedicated
employee since August, 1990 and is devoted to her
career Her major concern 1S that she be treated
fairly. Specifically, she cannot understand why
her former position as Data Input Operator (Regular
Part-time) has been "abolished". She is well aware
that there are about 65 agency workers still in
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that department and that there is a huge volume of
work to be done. If this work ~s of a temporary
nature, she would like to be g~ven an explanation
as to how temporary it actually is. If it is for a
number of months or years, she would like to have
the opportunity to continue in that job as long as
the agency workers have work to do. Ms Tran's work
~n Data Input has always been of a high standard
and there is no reason why she should not continue
in that department. When the Data Input work no
longer exists, she would then be willing to be re-
assigned.
3. The new position of Records Search Clerk causes a
major disruption to Ms Tran' s other commitment,
namely her College courses. She is attempting to
upgrade her skills by taking computer courses,
which courses generally commence at 1 00 pm Monday
to Friday. The hours of the new position,
Wednesday to Friday, 9 00 am to 5 00 pm, directly
conflict with her College schedule, and will force
Ms Tran to give up her courses at considerable
expense and disappointment to herself If there is
simply no option as to the department in which Ms
Tran can work, she would at the very least request
that her hours be Monday to Friday 8 00 am to 12 00
pm, so that she does not have to give up her
courses.
4. The re-assignment to Records Search CI~rk was
agreed to by the union without consultation with Ms
Tran herself. She is concerned about this, and
would like you to be aware, that she did not agree
to such a transfer.
5. We hope that some compromlse can be made so that
the needs of both Ms Tran and the Companies Branch
can be met. She is a skilled and experienced Data
Input worker, and it is only fair that she be
allowed to continue ln that department, at her
regular part-time hours, as long as there is work
to be done.
6. Ms Tran plans to file a formal grievance if
necessary. However, it is unclear from the wording
of Article 27 of the Collective Agreement when the
10 day time limit begins to run. It may be that
the letters between yourself and Ms Tran and this
letter to you still constitute "discussion" of the
complaint. Could you please clarify this point, as
Ms Tran does not want to forego her formal
grievance rights by missing any time limits.
Still, the main goal of Ms Tran is to settle this
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matter withaut resart to. farmal praceedings. She
merely wishe~ to be reinstated ln her original
department where there is a large valume af wark
far her to. do.
7. Ms Tran would also like you to clear up anather
concern which came up in 1992, namely the
availability af full-time pasitians ln the Data
Input Department Jaanne Chuda, Human Resaurces
Advisar, infarmed Ms Tran an several accasio.ns ln
1992 that she had the optian af chaosing a full-
time ar part-time positian. However, Ms Tran's
Supervisar, Michael Singh, infarmed her that no.
full-time pasitions existed Ms Tran was then sent
( back and farth a few times between Ms Chuda and Mr
Singh and was given no. consistent answers.
I laak farward to. yaur respanse to. this letter,
preferably by March 30, 1993. Please telephane me if
there are any questians ar camments yau have Thank yau
far yaur caaperatian.
On March 29, 1993, Ms. Gottschling wrote to Mr. Fehrle, as
fallaws Exhibit 19)
Re Jenny Tran (Yaur File #274-1)
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Ms Kirsh, Director, Companies Branch, Registration
Divi~ian has asked me to respond to your letter af March
26, 1993 regarding Ms Jenny Tran.
Unfortunately we are nat ln a pasitian to. cammunlcate
with you in this matter as it cauld be cansidered as an
unfair labour practice under the Crawn Employees
Bargalnlng Act (Sectian 29 1 ) as the Ontarla PubllC
Service Employees Union (OPSEU) ha~ the exblusive right
to represent individuals with regard to. disputes arlslng
from the employment relatianship.
Hawever, at such time as yau pravide written
autharizatian from OPSEU Head Office indicating their
will ingness to -have yau represent Ms Tran in this matter,
we wauld then be, a pasitian to. discuss tpe matter with
yau
On March 30, 1993, Mr. Fehrle wrate to. Ms Gottschling
(Exhibit 20~ as fallaws
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I am in receipt of your letter dated March 29, 1993 You
state that you are not in a position to communicate with
me in this matter My client has hired me to assist her
in dealing with her employer. Her union has failed to
return my telephone calls regar~ing your request for a
"written authorizat1on". You have placed Ms Tran in an
impossible situation.
You have given her a "deadline" of March 31, 1993 to
r'epo rt to work \ We have attempted to deal with th1S
deadline by way of my letter of March 26, 1993 to Carol
Kirsh The only person who 1S making efforts at this
time to clear up'Ms Tran's employment situation is myself
and you will not communicate with me This situation 1S
unacceptable. Surely every employee has the right to
requ~st information from their employer either in person
or with the assistance of a lawyer.
Please advise with whom I should, be dealing I have
written to Ms Kirsh (who has been writing letters to Ms
Tran) and Ms Kirsh passed my letter to you. Do I now
write back to you? In any case, please be advised that
Ms Tran is not able to report to work on March 31, 1993
at the hours dictated to her. The reasons are outlined ~
in my letter of March 26. Please have someone who 1S
able to give responses to my letter of March 26 contact
me as soon as possible.
On March 31, 1993, Ms. Gottschling wrote to Mr Fehrle
(Exhibit 21) as follows
This will acknowledge receipt of your letter/fax dated
March 30, 1993
The reasons, alluded to in your letter of March 26, 1993,
for Ms Tran's continued unauthorized absence are
unacceptable The ministry will be exercising its rights
under the Public Service Act as per Ms Kirsh's letter to
Ms Tran dated March 17, 1993
Mr. Fehrle wrote to Ms. Gottschling on March 31, 1993 (Exhibit
22) , as follows
Re: Jenny Tran
I am in receipt of your letter dated March 31, 1993 You
state that the reasons 1n my letter of March 26 for Ms
Tran's continued "unauthorized absence" are unacceptable.
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However, you fail to give any explanation as to why they
are unacceptable.
I would like to emphasize once more that Jenny Tran 1S
not 1n any way "abandoning" her employment with the
Companies Branch She has tried to deal with the union
and her employer in ,a reasonable way at all times.
I have been informed today that Melanie Moore, the
Negotiator at OPSEU, has been ill with the flu for the
entire week, and thus has not contacted me regarding my
request for written authorization to communicate with the
Companies Branch in this matter Carol Kirsh telephoned
me today and stated that she too was not allowed to
communicate with me on any substantive or any other issue
because I do not have authority from the union to speak
for Ms Tran. This once 'again leaves Ms Tran in an
impossible position. She cannot speak through the un1on,
because I cannot reach the appropriate OPSEU officer, and
she cannot speak through her lawyer because her employer
will not communicate with me.
In light of the above-noted circumstances, I would
request that you kindly postpone any drastic act10n
regarding Ms Tran's employment until the union officer
can be contacted and the situation can be clarified
On April 1, 1993, Ms. Carlson, wrote to the Gr1evor (Exhibit
23) as follows
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I am advised that you have been on unauthorized leave of
absence from work since March 17, 1993. As well, I
understand that you have not communicated with your
manager to provide a satisfactory explanation for your
"- continued absence
Therefore, I have no alternative but to determine that
you have abandoned your position 1n accordance with
Section 20 of the Public Service Act and the authority
delegated to me by the Deptity Minister. You will be
advised shortly of any monies owing to you. ,
Although the letter is shown to be from Ms. Carlson, the signature
is shown as "D. Wi) son" who is Ms Dianne Wilson, the Manager of
Human Resources
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On April 1, 1993, Ms GottschlJ.ng replied to Mr. Fehrle's
letter/fax dated March 31, 1993, as follows (Exhibit 24)
This will acknowledge receipt of your letter/fax dated
March 31, 1993.
In your letter you have indicated that_you have not yet
obtained the requested authorization from OPSEU At such
time as you can provide written confirmation from OPSEU
that they have authorized you to act on their behalf in
representing Ms Tran with regards to any disputes arising
out of her employment relationship with the Ministry, we
will be in a position to discuss the matter with you.
There was no indication as to. which of Exhibits 23 and 24 was sent
first.
Counsel for the Union submitted that the Employer had accepted
the Grievor's position, as supported by her physician, that she
suffered from a handicap recognized under the Human Ri9hts Code
(the "Code"), in the sense that she could not work night shifts and
that her handicap had to be accommodated in accordance with the
provisions of the collective agreement (art. A.i.1) which
incorporates certain provision under the Code, including their
remedial consequences .
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Counsel fO.r the Employer acknowledged that the Employer
accepted the Grievor's position that she suffered from such a
handicap and that it was required under Art. A to accommodate the
Grievor's handicap as required under the ~. It was subm:itted
that the Employer had been "vastly more accommodating to the
Grievor than even an unreasonable employee could expect. "
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Counsel for the Employer stated that during most of the time
that the Grievor was absent, as above outlined, the Employer
continued to pay her, but given her continued refusal to accept the
position offered to her by way of accomodation, it had no
alternative but to treat her as having abandoned her position
The Union maintained its position that there had been no valid
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exerClse by the Employer of its discretion under s. 20 of the
Public Service Act ("CECBA"), and that the Grievor had been
discharged without just cause, so that the Boad had jurisdiction
under the collective agreement and under s. 18 of the Crown
Employees' Collective Bargaining Act to adjudicate on whether this
was the case.
Counsel for the Union argued that the Grievor's position as a
Data Entry Operator on the night shift had to be modified so as to
accommodate her handicap (being unable to work nights because of
the adverse effects on her health if she was required to do so)
It was submitted her assignment to the Records Search Clerk
position referred to in Exhibit 12 liThe position you have been
assigned to under Art. 60.6 is that of, Records Search Clerk "
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did not amount to the mandated accomodationof her positlon as a
Data Entry Operator, the two positions being manifestly different
in terms of status, duties and responsibilities.
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It was submitted by counsel for the Union that when the
Grievor did not report for the work as a Records Search Clerk~when
ordered to do so by the represenatives of the Employer, she had
not, thereby, abandoned her position as a Data Entry Operator; the
assignment to the latter position being J.mproper and not J.n
compliance with the Employer's obligations under Art. A of the
collective agreement The Grievor, it was submitted, had continued
to communicate her continuing intention to returq to her positJ.on
as a Data Entry Operator, and the Employer should not be able to
rely on an alleged abandonment as a basis for treating her as
having abandoned her position within the meaning of s. 20 of the
Public Service Act. If she was absent, it was from a position to
whJ.ch she had been improperly assigned contrary to the provisions
of the collective agreement, and the Employer should not be
permitted to avoid its duty to accomodate the Grievor under the
guise of treating her as having abandoned her position so as to be
able to resort to s. 20 of the said Act.
~ounsel for the Union stated that the Employer should b~ put
to the proof that it had accommodated the Grievor's handicap J.n
accordance with its obligations under Art. A.
Ms. Kirsh testified on behalf of the Employer. She stated
that prior to the Grievor's unit ceasing to exist in the summer of
1992, there were two full-time Data Input Operators in the unit and
-
one RPT Data Input Operator (the Grievor) . At that time the
(
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computer system used was the "Mohawk" system. Sometime during the
summer of 1992 a new computer system was introduced into the
Companies Branch This was said to pave changed the way in which
\
the work was performed and it was no longer necessary to have the
work previously performed by Data Input Operators using the Mohawk
system in the Corporate Services Section
\
When the Grievor was notified by Exhibit 3 that her position
was being eliminated, the full-time employees in the unit were able
~to rely on art. 24 of the collective agreement so as to be able to
be assi~ned to other full-time equivalent positions in the Branch.
I
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-,
After receipt of Exhibit 4, the Grievor performed data entry
duties using the new computer system in the new section that was
established to encompass all document processing and data entry
services the Document Proces~ing Section.
-
The introduction of the new computer system was said to have
I
introduced a fundamental change ln the day-to-day operations
relating to data entry which were said to have formerly been almost
entirely manual, except for the relatively small amount of entry
-
through the Mohawk computer system. With the introduction of the
new system almost all of the data entry was through that system.
When the agreement set out in Exhibit 2 was reached, the
Employer was able to assign RPT employees to vacant RPT positions
"
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/
In the case of the Gr1evor, she was assigned to an RPT Data Entry
Operator position on a night shift. The same action was t~ken with
respect to other RPT Data Entry Operators whose jobs had been
eliminated, such as those in the Personal Property Securit1es Act
Registration Branch
Exhibit 6 conta1ns the posting with respect to 12 Data Entry
Operator positions classified as OAG 4, being RPT positions of 20
hours a week in the Registration Division of the Companies Branch,
being the job to which the Grievor was ass1gned by Exhibit 7
Under "Qualifications" there is a note that "the hours of work for
these RPT positions will be 12 30 a.m to 8 00 a.m., Tuesday to
\
Thursday. The work schedule may be subject to change." Also
attached to Exhibit 6 1S the Position Specification and Class
Allocation form for the posi t'ion, which identifies it as an RPT
positions of 20.25 hours a week, with an indication that it is a
new position in the Registration Division of the Companies -
Systems Implementation Section. Also attached to Exhibit 6 is a
Physical Demand form dated January 19, 1992, where the analyst is
shown as Michael Singh who was the Grievor's Supervisor.
According to Ms. Kirsh, after these positions were
established, no more day shift RPT Data Entry Operator positions
existed.
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20
Ms. Kirsh confirmed that the Grievor never reported to work
any night sh1ft to which she had been assigned She stated that if
the Grievor had reported for work as a Data Entry Operator, she
would have worked on the new computer system. The physical work of
the job required her to look at a document and, using a prescr1bed
format, enter the specifics into the computer to the screen 1n a
straightforward manner and then press the "Enter" key. The work
was said to be similar to that of a copy typist, only uS1ng the
computer
After receiving Exhibit 11 with Dr Ling's notation that she
regarded her earlier letter as being sufficient for the purposes of
the Employer, Ms. Kirsh consulted with the Human Resources Branch
where a decision I was arrived at to accomodate the Grievor's
handicap by assigning her to an equivalent level day shift RPT job
that was available 1n the Branch, there being no RPT data entry
positions available in the day shift at that time. Reference was
made to Exhibit 12
Reference was made to Exhibit 13, being the Position
Specification and Class Allocation form with respect to the Records
Search Clerk (RPT) position. Ms. Kirsh testified that that was the
position offered to the Grievor in Exhibit 14.
Ms. Kirsh confirmed that the Grievor did not attend at work on
March 10 as directed. This set in motion a process that lead to
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21
her sending the Grievor Exhibit 16 directing her to report to work
on Wednesday March 17, 1993 Ms. Kirsh also referred to Exhlbit 17
and to Exhibit 18 being Mr. Fehrle's letter
Ms. Kirsh sent Mr. Fehrle's letter (Exhibit 18) to the Human
Resources Branch who replied to it in Exhibit 19
According to Ms. Kirsh, the Record Search Clerk job, which the
Employer regarded as providing reasonable accommodation to the
Grievor's medical needs resulting from her handicap, was open to
her until March 31, 1993. When she failed to attend at work,
Exhibit 23 was executed by Ms. Carlson, the Director of Human
Resources Branch, with the result that the Grievor was deemed to
have abandoned her position "in} accordance with s. 20 of the Public
Service Act and the authority delegated to [her] by the Deputy
Minister. "
. . .
Ms. Kirsh stated that the Employer regarded itself as being
bound to withhold further information from Mr. Fehrle unless
) authorized to do so by the Union who, by law, represented the
I
Grievor.
.J
Ms. Kirsh also testified that a considerable amount of data
processing work, that was of the same kind performed by the
Grievor, was, at all material times, performed by what she
referred to as "agency personnel" supplied by the Goodwill
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charitable agency, who worked during the day The agency personnel
were part of a program sponsored by Goodwill, which program was
identified as an "employment training program for persons who were
job disadvantaged." The evidence was quite sketchy as to the
contractual or other basis for the Employer uS1ng. agency personnel,
although it was agreed that they were not part of any employment
-
equity program recognized under the collective agreement, and that
the agency was paid for the work performed by the persons furnished
by it Some of them had handicaps (mental and/or physical) and
others did not. Some of them merely had not had any previous
Canadian wor~ experience. It was also agreed that the Union was
raising no objection to the use of agency personnel, but claimed
that the Employer was required to assign the Grievor to a day shift
similair to the one that she had previously worked from 8 00 a m
to 12 00 noon, three days a week, which should be accomplished by
transferring an agency person from the day shift
Ms. Kirsh testified further that the impact of creating a
part-time Data Entry Operator pos1tion for the Grievor in March of
1993 on the day shift would mean that one full-time Goodwill Data
Entry Operator would have to be displaced. She stated that, 1n
these circumstances, the Employer would not be able to take full
advantag~ of the computer system and would lose productivity by
replacing a full-time with a part-time person.
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23
In March of 1993 there were no regular part-tlme day shlft
Data Entry Operator positions ln the Ministry ln the Data Entry
Section, as all RPT work had been transferred to the night shlft
In cross-examination, Ms Kirsh testified that the decision to
declare the Grievor's position redundant ln July of 1992 had
-
nothing to do with any inadequacy in her performance, and the
decision in April of 1993 to declare that she had abandoned her
I
position did hot reflect on her ability to perform the work.
Referring to Exhibit 17, para. 3, Ms. Kirsh said that previous
)
to sending the Grievor Exhibit 17 she had reviewed the issue of
,
abandonment with the Deputy Minister's delegate, Sharyn Carlson,
but her evidence ,was imprecise as to what information had, in fact,
been place before Ms Carlson so as to put her in a posltion to
exercise her authority. It was evident that the passage of time had
had an effect on Ms. Kirsh's ability to recall significant events,
and she acknowledged as much, and she had no aids to assist her
recollection.
In cross-examination Ms Klrsh indicated that she had no
direct knowledge of how the Deputy Minister's power had been
delegated to Ms. Carlson, with reference being to Exhibit 23. In
the first paragraph of Exhibit 23, reference is made to certain
advice'that had been received by Ms. Carlson concerning the alleged
unauthorlzed leave of absence of the Grievor that Ms. Carlson was
I
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24
acting on (It should be noted that Ms. S Wilson signed exhibit
23 on behalf of Ms Carlson)
Ms Kirsh elaborated on her evidence concernlng the
information that was passed on by her and stated that she had not
given any direct advice to Ms Carlson relating to the facts that
bore on the unauthorized absence, however she had glven such
information to Ms Gottschling.
-
Reference was also made to the allegation, in para. 1 of
Exhibit 23, that the Grievor had "not communicated with [her]
manager to provide a satisfactory explanation for [her] continued
absence. " Ms. Kirsh stated that the Grievor's manager was Sharon
,
Lambe, and that Ms. Lambe had not made the decision that the
Grievor had abandoned her position. She added that she had no
knowledge as to whether the Grievor had communicated with Ms Lambe
through her solicitor Mr Fehrle.
Ms Kirsh stated that she had input into the preparation of
Exhibit 12 ln which the Grievor was offered work as a Records
Search Clerk, and indicated that she regarded the Ministry's
actions as being in accordance with the normal procedure followed
in order to accommodate an employee with a handicap under the Human
Ri9hts Code. She also -acknowledged that the Ministry was
responding to the identification by Dr. Ling of the Grievor's
handicap. She specifically referred to the portlon of the letter
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25
which stated "We are prepared to assign you to work during the day
based on your doctor's recommendation. However, as there 1S no
requirement for a Data Entry Clerk during the day we have assigned
you to a different type of work. All necessary training for this
position will be provided. " She agreed with the suggestion put to
her that prior to May 5, 1993 the Grievor was a Data Entry Operator
( RPT) . She acknowledged that a Records Search Clerk had quite
different duties and responsibilities from a Data Entry Operator,
although their classifications were the same ( OAG4) .
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In referring further to her input into the drafting of Exhibit
12, Ms. Kirsh stated that she was not involved 1n any discussion
relating to how the position assigned to the Grievor came to be
assigned under art. 60.6 of the collective agreement. Nor could she
recall any discussion with anyone as to how offering the Grievor a
change in pos1tion to Records Search Clerk Operator would amount to
a modification of the duties of the Data Entry Operator so as to
amount to a necessary accommodation based on the Grievor's
J
handicap.
Ms. Kirsh also acknowledged that 'training as a Data Entry
"
Operator did not prepare an employee to perform the work of a
/ Records Search Clerk she also acknowledged that the superyisors
of , the different and that
persons in two positions are the
incumbents work on different floors of the same building. She also
I ~
26
agreed that there are different physical demands called for in the
two positions.
n
In cross-examination, Ms. Kirsh was asked a number of
questions concerning the agency personnel. Although she could not
recall the exact date when they commenced to perform data entry
work, she believed that it was sometime in July of 1992 when the
new computer system was introduced. She stated that they entered
data from forms onto the computer in a structured format l.n the
same way as Data Entry Operators' did, and that they were supervised
by Ministry managerial personnel, there being no on site agency
superVl.sor. She acknowledged that the work performed by the agency
personnel a~ Data Entry Operators was the same as that performed by
the Grievor from July 1992 to December 1992. She also acknowledged
that the same data entry responsibilities were carried out by
agency personnel after January 1, 1993 and that agency personnel
still perform the data entry work that the Grievor had performed
I Ms Kirsh indicated that she if there
I was unaware was any
I
penalty if the Ministry reduced the number of agency personnel
performing the work of a Data Entry Operator She stated that she
had never seen the contract but she did not think that there was
\
any penalty for reducing the number of agency personnel She
stated, however, that she was aware that there were certain days
when agency personnel were not called in and there was no penalty
suffered by the Ministry She referred to cevtain days when the
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I 27
"government was closed ln August or September under the social
contract. "
Ms. Kirsh was asked what happened when the agency was asked to
replace one of the persons supplied by it to the Ministry She
responded that from time to time the agency was requested to
replace. employee,s furnished by it who were regard~d as being
unsuitable and it complied with such requests. She was aware that
there were some agency employees in the Companies Branch between
July of 1992 and April of 1993. She was also aware that the
Ministry paid no benefits to Goodwill with respect to the employees
furnished by it, and she was unaware of ~ny specific provisions of
the collective agreement that appl ied; to the arrangement whereby
Goodwill furnished personnel to the Ministry
)
She testified that a Ministry employee, Art Daniels, an
Assistant Deputy Minister, asked h~r in a casual conversation, the
date of which she could not recall, if it was possible to asslgn
)
the Grievor to a data entry position. Her response was that it
would be possible but it would cause "operational difficulties "
She later explained that the conversation was not specifically
- \
related to the case of the Grievor.
1
Ms Kirsh stated that the Employer had to make the best use of
"plant )
{ and equ~pment" to achieve maximum productivity. This
resulted in a decision to use full-time personnel to use the
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28
limited amount of computer equipment during the day shift from 9
a m to 4 30 p.m.. The concIusion that it was more efficient to
have a full-time person working the day shift as a Data Entry
Operator than to have two re~ular part-time employees performing
the same work was based on a monitoring of the equipment by
managers She referred to the existence of operational
-./
di,.f'ficul ties that arose when more people were used to operate the
same equipment, and added that the difficulties expanded
"geometrically" where there were mul tiple users of- one workstation
She also stated that twice as much energy was required of managers
to manage two people compared to managing one person.
Ms. Kirsh testified that the Grievor had been a Data Entry
Operator, working the day shift, until July of 1992 At that time
she was the only RPT employee doing data entry work during the day
shift. From July of 1992 to December of 1992, the Grlevor continued
to work regular part-time hours on the day shift According to Ms
Kirsh, the Employer sacrificed productivity because no other person
shared the ~omputer equlpment that the Grievor was then worklng on
\
In cross-examination, Ms. Kirsh was asked if the Employer had
considered whether the Grievor should be engaged on a regular part-
time basis to work the day shift as a Data Entry Operator with the
afternoon portion of the shift being performed by an agency ~
employee. Ms. Kirsh stated that she consldered this posslbillty
~
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29
but rejected it because to allow the Grievor to work on a regular
part-time basis during the day shift would have required that some
person work the afternoon shift in order that productivity not
suffer. She regarded that such an arrangement placed too great a
demand on managers, and she was concerned that it would unduly
complicate dat-to-day management After considering the
possibility suggested to her, Ms Kirsh stated that she felt that
any additional productivity that might be obtained by following the
suggestion would be overcome by the loss of managerial
effectiveness.
J
Ms. K~rsh stated that after some consideration it was dec~ded
to establ~sh an additional midnight shift for Data Entry Operators
with two full-time operators and one RPT operator, the latter
working three nights a week with each shift being approximately
eight hours. The reason for choosing the 12 midnight to 8 a.m.
shift was \so that the persons on the shift could go home ~n
daylight. This was considered to be a safer expedient than five
and a half hour shifts which would require those working them to go
)
home in the dark.
It was put to Ms. Kirsh, ~n cross-exam~nation, that there
)
would be an advantage ~n us~ng the Grievor rather than agency
personnel because she would not have to be retrained on the new
equipment. She responded that this was also the case for agency
personnel.
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Ms. Kirsh was asked if she was aware of any studies that had
compared the efficiency of RPT Data Entry Operators such as the~
/ Grievor and personnel performing that work. She replied '-
ageD.cy
that she was not aware of any such studies.
Lynne Gottschll.ng also testified on behalf of the Employer \
She testified that as Manager of Employee Relatio'ns she was
famil iar 'wi th the provisions with respect to the delegation of
I authority by the Deputy Minister as it relates to a finding that a
I
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position has been abandoned; with reference being made to Exhibit
23 where Dianne Wilson, the Manager of Human Resources section
signed the letter indicating that the Grievor was treated as having
abandoned her position. Ms. Gottschling stated that Ms. Wilson is
the manager immediately beneath Sharyn D. Carlson, the Director of
the Human Resources Branch
Ms. Gottschling was involved in the discussions that occurred
following the time when the decision was made to release a number
of regular part-time employees l.n June of 1992, which decision
affected the Grievor. She discussed the mutual concern of the
Union and the Employer about the position of regular part-time
employees who had no access to the job security provisions of the
collective agreement in these circumstances. She referred to the
result of the discussions between the Union and Management Board
that lead to the execution of Exhibit 2
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She stated that when Exhibit 3 was sent to the Grievor, the
Ministry hoped that something could be done for RPT employees
before the projected release date She was also involved in the
decision that lead to the preparation of Exhibit 4, which she
stated was written with a Vlew to maintaining regular part-tlme
employees in a position where they might benefit from a positive
decision such as was arrived at in Exhibit 2 It was hoped that by
granting an extension other work would be found for them.
t
Ms. Gottschling stated that after Exhibit 2 was executed she
was involved ln discussions as to how the agreement might be
implemented and she met with representatives of the Union to
discuss how the collective agreement might be amended A meeting
was held on December 18, 1992 between representatives of the
Employer and the Union which focussed on the concerns relating to
the situation of RPT employees who were facing a layoff by the
Ministry, which group included the Grievor.
At that time the Employer presented to the Union a proposal
dealing with RPT employees that would requlre an amendment to
Exhibit 2. A document entitled "RPT Asslgnment Process" (Exhlblt
I
26) was drafted by Ms. Gottschling and presented to the Union
Exhibit 26 is as follows
RPT 'ASSIGNMENT PROCESS
"
STEP ONE
1 All affected RPT employees' files will be reviewed
and a "Seniority Credit" will be established ln
(
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32
order to assign them to available RPT positions on
a "seniority basis" in the ministry withi~ 40 KM
-
2 RPT employees to be matched against availabl~_ RPT
vacancies in the following sequence
a most senior first (ie highest "senlority
credits)
b within the 3/20% salary parameters
c skill requirement of the position
If no match- at any point, next most senior
individual to be matched based on the above
criteria
I 3 At the end of the "matching process", all
successful "matches" to be placed in existing RPT
positions.
STEP TWO
1 Any RPT employees who can not be assigned to RPT
positions would then be converted (through the
"job-sharing" mechanism outlined in the agreement)
to FT positions and be declared surplus with full
Article 24 rights.
STEP THREE
1 The newly declared surplus employees would be
integrated with any individuals already on the
ministry surplus list.
2 Corporate Redeployment Unit would be notified of
their surplus status. ~-
3 All potential FIT vacancies in the Ministry wlthin
40 Km would be assessed against the ministry
surplus list for any potential matches. If any of
the surplus employees can be assigned (based on
seniority, salary parameters and skills), they
would be assigned to the vacancy.
4 Next, the Redeployment Section of MBS would be
advised that we cannot accommodate these
individuals ln the Ministry and to place them on
the Corporate Surplus list with full Art 24 rights
5 Meetings would be set up with the Ministry Surplus
Coordinator to prepare their Employee Portfolio,
etc and develop a retraining plan._
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6 Temporary assignments (Full Time hours) would be
arranged during- their notice ' {d of 6 months
per10
(until such t1me as they are placed).
December 18/92
t1s. Gottschling identified the Union representatives at the
meeting of December 18, 1992 as being Muriel Etier, Torn Wood and
Melanie Moore
\.
Present; at that meeting on behalf of the Employer were Eleanor
Meslin, Assistant Deputy Minister, Corporate Services Divis1on,
Arthur Daniels, of the Administrative Registration Division, who is
Ms. Kirsh's superior, Joanne Chudo, Human Resources Advisor with
that Division-, Suzanne McLaughlin, Re-deployrnent Coordinator who
reports to Ms. Gottschling, Ms. Gottschling, and Sharyn Carlson,
Director, Human Resources.
\
Ms. Gottschl1ng noted that in paragraph 2b of Exhibit 26
"within the 3/20 per cent salary parameters" should read "w1thin
the 3/10 per cent salary parameters, " and this was brought to the
attentio~ of the meeting by Ms. Etier.
The next 1ssue discussed was said to have "flowed out" of a
consideration of the step 2 and 3 provisions in Exhibit 26. These
concerns related to those RPT employees who were left over after
the application of steps 2 and 3. There was a d~fference betweep
the parties as to what wou~d happen to such employees The
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34
Employer was of the view that such employees would "end up" on the'
corporate surplus list and have full art 24 rights
/
The Union was of the view that RPT employees ln those
circumstances would be assigned to a full-time job on a job sharing
basis. If no resolution could be attained then the matter would
have to go back to Management Board and the OPS head office. The
Union was said to have been reluctant to have RPT employees go into
a full-time position at that time.
After the meeting arrangements were made to place the RPT
employees, including the Grievor in available positions
Ms Gottschling referred to Exhibit 27, entitled "MCCR-RPT
Employees" being a list of RPT employees, their status and how they
were to be assigned in accordance with Exhibit 2. The Grievor is
shown on the list with a notation of her Continuous Service Date of
August 27, 1990, her seniority credit of 1 JO, her classification
as OAG4, and her status "Assigned to RPT OAG 4 posltion, Companies
Branch, effective January 1, 199.3 ; Data Entry Clerk."
Ms. Gottschling also indicated that she was aware that the
Grievor had not been consulted about her placement, the advice
being given to her by someone in the Program Area.
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Ms Gottschllng was aware of the doctor's ndtes above referred
to and was responsible for the preparation of Exhibit 11, where she
requested more information from the Grievor's physician ln order to
assess what if any further accommodation was necessary. She was
aware of the doctor's response to her letter and was involved ln
,the discussions that took place within the Human Resources Branch
It was concluded that the Grievor was apparently willing to
cooperate in the provision of the information requested, but that
her doctor was not. She discussed the matter with Dr. Chambers, a )
)
physician with the Employee Health Services Unit of the Ministry of
Government Services which furnishes a consulting service ~or otqer
ministries. He suggested that a "broad interpretation" be taken of
what Dr. Ling had recorded and that the Ministry should consider
the possibility of assigning the Grievor to the day shift After
\
a further discussion in the Human Resources Branch, discussions
took place between Ms. Gottschling and Melanie Moore, who
represented the OPS at the Ministerial Employee Relations
Committee, with a view to resolving the "dilemma, " and there was
agreement that it was necessary to find a "vehicle" to assure that
the Grievor would be able to work the day shift
Ms. Gottschling stated that because the position to be given
I
to the Grievor by way of accomodation was a different one from the
one she previously held, there would normally be a requirement that
it be posted.
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36
A regular part-time vacancy was located where the Grievor
I
could pe transferred, the decision to do so being arrived at after
dlScussion with Ms Kirsh. The position in question was that of
Records Search Clerk position, above referred to. There were
ongoing discussions with Ms. Moore concerning the efforts of the
Employer to facilitate a reassignment of the Grievor to a day
position. Another consideration favouring assignment of the
\
Grievor to the Records Search Clerk position was the fact that lt
could be awarded to her without posting.
The discussions with Ms Moore culminated in the preparatlon
of Exhibits 14 and 15 Ms Gottschling regarded Exhiblt 15 as
'\
representing the Union's agreement to the action to be taken to
assign the Grievor to the Records Search Clerk position as a
suitable accomodation to her handicap. The Grievor was notified
~
about her assignment to the Records Search Clerk position by
Exhibit 12 and asked to report to work in that position at 9 a.m.
on Wednesday March 10, 1993.
After Exhibit 12 was sent to the Grievor, there were a number
of telephone conversations between her and Ms. Gottschling where
the Grievor indicated that she was "unhappy" with the assignment
and stated that she only wished to work during a morning shift,
part-time, five days a week in a Data Entry Clerk position. Ms.
Gottschllng informed the Grievor that she would have to report to
work as a Records Search Clerk The Grievor replied that she did
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37
not wish to work the hours 'as assigned Ms. Go.ttschl ing then
responded that the assignment was in accordance wlth the medical
\
information furnished by the Grievor's physician When the Grievor
"'.
-~
continued to maintain her position, Ms. Gottschling advised her to
discuss the matter with ~ Union representative.
She recalled that part of the Grievor's concern about the
hours of work in the Records Search Clerk position related to the
fact that they would conflict with university classes (at Ryerson)
that she was taking at the time in the afternoon The Grievor did
not indicate any medical reason for her being unable to attend work
as a Records Search Clerk. u
Ms. Gottschling stated that Ms Wilson and Ms. Carlson were
kept fully informed of the facts relating to the Grievor to the
'\
point where she was declared to have abandoned her position,
although she did not testify as to what information was actually
presented to them or when it was presente~.
In cross-examination, Ms. Gottschling explained that Exhibit
26 represented the mechanics for the implementation of Exhibit 2
Exhibit 26 represented the Ministry's interpretation of that
""'
exhibit. She acknowledged that one "component" of Exhibit 26 was
not correct - the 3/20 per cent figure, above referred to. She
believed that Exhibit 26 was used as a basis for the assignment of
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38
the Grievor to the Data Entry Operator position on the midnlght
shift
she testified that she believed that Exhibit 26, ln step 1,
paragraph numbered 2c "skills Requirement Position," took the same
approach as did art. 24 of the collectlve agreement that applied to
full~time employees on the surplus list
She was unaware as to whether ln assessing the skill
requirements, any consideration had been given to handicap or
physical barrier to the performance of a position.
In Ms. Gottschling's view, the proper accommodation which the
Grievor was entitled to because of her handicap, and which she
received, was to place her in an equivalent, comperable position to
be worked other than on the night shift.
In response to a question in cross-examination as to how the
Employer intended to accommodate disabilities in accordance with
Exhibit 26, Ms. Gottschling replied that its representatives worked
together with Union representatives to find the most appropriate
accommodation. She also stated that the Ministry had not considered
placing the Grievor on the surplus list because there were then
\
positions to which she could be matched
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39
Ms. Gottschling stated that even though t~he Employer's
representatives were not satisfied with the response of Dr Ling,
after ~onsultation they decided to "err on the side of the
employee" and to accommodate the Grievor That is, notwithstanding
the evident shortcomings in the medical evidence, the Grievor was
regarded as being an employee with a handicap entitled to
\
accommodation under Art. A, that had incoporated the Human Ri9hts
Code, and this accommodation was in the form of the assignment of
the Grievor to the Records Search Clerk job between 9 a.m. and 5
p.m. three days a week. She regarded resort to art. 60.6 of the
collective agreement, with Ms. Moore's concurrence, as amounting to
an adaptation of the collective agreement to the situation then
facing them. She regarded art. 5.5 of the collective agreement as
being inappropriate as a basis for dealing with the facts before
her and cho~e art. 60.6 as being the "appropriate way to go. "
Ms. Gottschling stated that she was of the view that it was
unnecessary for her to communicate directly with the Grievor as the
matter had been discussed with the Union and an agreement arrived
at with respect to accommodation. She then stated that it would be
an unusual practice to do so.
Ms. Gottschling stated that there was no discussion with Ms.
Moore concernlng assigning the Grievor to a Data Entry Operator
position on the day shift because no such position was then
available on a part-time basis.
~
- 40
Ms~ Gottschling was asked if she would consider assignlng the
Grievor to perform the work done by agency employees as Data Entry
Operators. She replied that she would not because such matters
were not handled through the Hu~an Resources Department. She added
that she only assigned employees to work on "real" vacancies and
not on temporary positions. She testified, without elaboration,
that responsibility for the assignment of agency personnel was wlth
the program area of each division
Ms. Gottschling stated that she was familiar with the
correspondence between Mr Fehrle and the Ministry and that she
kept Ms. Carlson "and others" aware of her involvement. She
referred to Exhibit 21, being a letter to Mr Fehrle from herself,
which is as follows
This will acknowledge receipt of your letter/fax dated
March 30, 1993.
The reasons, alluded to in your letter of March 26, 1993,
for Ms Tran's continued unauthorized absenge are
unacceptable The ministry will be exercising its rights
under the Pub1~c Service Act as per Ms Kirsh's letter to
Ms Tran dated March 17, 1993
She also recalled having brought Exhibit 22, being Mr
Fehrle's reply, to the attention of other persons, although she did
hot identify them. She did not recall if there was any discussion(
with respect to Exhibit 22 and how it might affect the Ministry's
decision to treat the Grievor as hav{ng abandoned her position
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41
As ln the case of the others who testified, t.he passage of
time had a negative effect on Ms. Gottschling's abillty to recall
with any precision a number of significant events. She,stated that
she was unaware whether Exhiblt 23, being the Ministry's decision
to treat the Grievor as having abandoned her position, was written~
before or after the receipt of Exhibit 22~ She also indicated that
- she could not. recall whether Exhibit 24, dated the same day as
Exhibit 23, was written before the latter exhibit, and she had no
aids to assist her in refreshing her memory, such a correspondence
or any other kind of log
Ms. Gottschling was shown Exhibit 17, dated March 17, 1993,
being a letter from Ms. Kirsh to the Grievor, and was asked who
(
decided that the Grievor was on an unauthorized leave of absence
after March 17, 1993, and replied that she did not know.
She stated that the "ultimate decision" made in Exhibit 23 was
made by the Dlrector of Human Resources belng the person with. the
\
delegated authority to do so. She stated that she had been
involved ln discussions leading to the making of the final
decision, but did not recall whether she had recommended the
decision that was ultimately made, and, as above noted, had an
imperfect recollection of the exact nature of the material that was
presented to the Deputy Minister's designee for consideration
before exercising her discretion.
I
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42
,
The Grievor testified that when she was first hired as a Data
Entry Operator, she worked from 8 30 a.m. to 12 30 p m. Monday to
Friday She conti hued to work those hours in April and May of
1992. In April of 1992 she was moved from the second to the fourth
floor at 393 University Avenue while performing the same job. She
described the change as being from a small to a large department
Her hours when she was, moved to the fourth floor were 8 a m to 12
noon Monday to Friday, her supervisor then being Michael Singh
~
At the time she received Exhibit 3 on July 10 of 1992, she was
working as a R P.T. Data Entry Operator on the fourth floor At
that time there was one permanent full-time employee working from
8 30 a.m. to 4 3 0, p. m. , and between 30 and 40 persons supplied by
Goodwill. She testified that there were other agency personnel
!
working on the evening and night shifts but it was not clear
whether they were performing Data Entry Operator functions She
stated that the agency personnel performing the Data Entry Operator
functions on the fourth floor were doing exactly the same kind of
work as she did.
Upon receiving Exhibit 3, she spoke to Mr Singh and informed
him that she did not believe that her position had been abolished
as a Data Entry Operator ( RPT) , because the only thing that had
\
been changed was the computer system, with the work remaining
identical. Mr. Singh is supposed to have said that the Grievor was
dOlng a good job and, ashe could not explain why her position was
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43 -
belng abolished, suggested that she speak to the Manager, John
Flint She spoke to Mr. Fllnt who suggested that she speak to
"head office". The Grievor then called "head office" and spoke to
Joanne Chudo, of the/Human Resources Branch She asked Ms Chudo
why her position had been abolis~ed. Ms. Chudo is supposed to have
replied that the Ministry required full-time ~taff The Grievor
stated that she replied that she was prepared to work full-time
Ms. Chudo is then said to have advised the Grievor to speak to Mr
Singh about working full-time. She approached Mr. Singh who
informed her that there were no full-time positions, and she
(
continued to work until she received Exhlbit 4.
\
\ 1992 she worked as as Data
Between September and December of
~
Entry Operator, performing the work she had always performed,
working from 8 a.m. to 12 noon
"
She was asked, in-chief, whether she had spoken to the Union
concerning her future after December of 1992, and replied that she
had not. Ms. Klrsh had advised her to "stay on the job for now" ln
order that something could be)worked out with the Union to furnish
such persons as herself with some kind of surplus rlghts.
The Grievor acknowledged r~ceiving Exhibit 7 ln December of
1992 informing her of her assignment to the midnight shift as a
Data Entry Operator. Ms. Kirsh is supposed to have spoken to her
ln response to an inquiry and advised her that she would have to
~ r", ,
~
/ 44
apply for a Data Entry Operator day position The Grievor said that
she replled that she could not see why she would have to apply when
she could already perform the work on the day shift.
- i~form
The Grievor stated that she did not anyone \why she
could not work the night shift because nobody asked her. After
receiving Exhibit 7, she spoke to Mr Singh and asked why she was
being transferred to the midnight shift when agency personnel, who
.could be transferred to the night shift, were working the .day
shift. Mr. Singh is supposed to have replied that he understood
the Grievor's concerns, and that it appeared to hlm that agency
personnel should be required to work nights before the Grievor was.
The Grievor referred to her then seeing Dr. Ling because of a
previous experience working the night shift when she had
encountered physical and emotional difficulties She acknowledged
that the incident happened some years ago, when she was not working
for the Minlstry, and that she did not work on the night shift for
very long (less than a week) at that time
The Grievor described how she re-attended ion her doctor ln
order to get the additional information requested by the Ministry,
and she made specific reference to Exhibits 10 and 11
I
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The Grievor also expressed her concern about being asslgned to
a Records Search Clerk job and stated that she had had no ~revious
experience in that kind of work. She felt that the Records Search
Clerk position was inferior ln s_tatus to that of a Data Entry
Operator, which she viewed as calling for more sophisticatled
skills. She stated that she did not report to the Records Search
\
Clerk job because she regarded the job as being entirely different
and because the job required her to work from 9 to 5 and not from
I
8 until noon. This would result in her being unable tOI attend
accounting and computer university classes in the afternoon.
After receiving Exhibit 12, she spoke to Sharon Lambe,
Manager of Information Services, to whom she was to report and
explained her problem. Ms. Lambe is said to have stated that she
understood the Grievor's difficulty and would try to help her
\ There was some suggestion that the Grievor might be given work for
half a day during the day shift in the Customer Service Department
and Ms. Lambe suggested that she speak to head office about this
possibility. The Grievor then called Joanne Chudo who told her to
speak about her problem to Ms. Gottschling
)
The Grievor said that she spoke to Ms. Gottschling and
requested that she be assigned to another job with hours that would
allow her to continue to attend university classes. Ms.
Gottschling is said to have replied that there was no other
position available for the Grievor during It he day that would
\
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46
accommodate her school schedule and that the only job available
during the day was the one offered to her In the result the
Grievor never did report to work as a Reqords Search Clerk
The Grievor referred to Exhibit 16 above, and stated that ln
her view she had notified her Manager, contrary to the statement in
the second paragraph of that exhlblt, refer~ing to her conversation
with Ms Lambe. She referred to her having informed Ms. Lambe why
she was not going to report- for the job and added that she did not
intend to attend to start work as a Records Search Clerk unless she
had her "old hours." She did not work for the Ministry after March,
17, 1993.
The Grievor stated that after she received Exhibit 17 she
called Ms. Kirsh who was not then available She said that she
told Ms. Kirsh's secretary to "make sure" that she informed Ms
Kirsh that the Grievor would not be reporting for work The
Grievor regarded the statement ln Exhibit 17 that she had not
prov1.ded "a reason for [her] contlnulng absence," as being
inaccurate. Ms. Kirsh's secretary is supposed to have replied that
if the Grievor didn't want the job there were a lot of other people
"waiting for it fl However the secretary also stated that she would
convey the message that the Grievor had asked her to deliver to Ms
Kirsh
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47
The Grievor referred to her meeting with Mr. Fehrle and her
~
advising him that she had no intention of abandoning her position
;'
She stated that the Union had not called her as a result of
Exhibits 18, 20 and 22, and that upon receiving Exhibit 23 she
filed a grievance. Before filing the grievance, she spoke to the
fourth floor manager, 'Nick Perrera, who she understood was ln
charge of agency personnel for the Ministry, and asked if there had
been any change in the Ministry's position with respect to her
being transferred to work the day shift that she sought in place of
an agency person Mr. Pererra was said to have advlsed her that
there haa been no change.
In cross-examination, the Grievor testified that as far as she
knew agency personnel furnished by Goodwill did not have
disabilities. The evidence of Ms. Kirsh was put to the \Gr ievor
that many of the agency personnel did, ln fact. , suffer from
physical and/or emotional problems. At that point the Union
counsel interveped and stated that the position of the Union was
that the agency personnel were "job disadvantaged." As noted,
counsel for the Employer stated that it was not the position of the
Employer that agency personnel were part of an employment equity
program as set out in art. A.2 of the collective agreement
It/is recognized that in accordance with section 14 of
the OHRC, the Employer's employment equity program shall
not be considered a contravention of this article
I
Art. A 1.1 of the collective agreement provides
--
~ .-. ."'.--.....
.
48
There shall be no discrlminatlon practiced by reason of
. . . handicap, as defined in section 10(1) of the Ontario
Human Rights Code (OHRC)
The Grievbr later testified that if the Records Search Clerk
position had been a half day position she would have reported for
work. She added it was only the hours of the position that created
a problem for her because they would not permit her to attend
classes ln the afternoon at Ryerson. This position was somewhat
different than the one orlginally taken by her She said that she
had attended classes at Ryerson for approximately a year and had
not yet completed her studies which were taken on a part-time
basis. She acknowledged that Ryerson had evening classes, and lt
was unclear as to whether the courses she was taking ~ere also
available in the evening, although she testified that she started
to attend evening classes in 1993. She added that if she had been
offered a full-time job she would have taken it
She acknowledged that the work of a Data Entry Operator was to
I
look at a form and type it onto a computer screen, which she agreed
was a form of copy tYPlng
In cross-examlnation, she acknowledged that her preVlOUS
experience working nights was a "couple of shifts" about a year
before she started work for the Ministry, when she was working ln
private industry as a temporary employee. She stated that her
problem at that time was with her eyes when she worked the night
shift
-
49
she informed her doctor on January 3, 1993 that she was not
feeling well and in addition told her about the change in shift and
that she was aware that she could not "stand" to work the nlght
shift. The doctor furnished her with Exhibit 9 She stated that
she told the doctor that she was not then WOrklI)g nights but
recounted the kind of symptoms that she suffered when she did The \
doctor's letter indicates that he inco~rectly believed the Grievor
was then working the night shift. /'
Employer Ar9ument
\
\
Counsel for the Employer made the following submissions
,~
1. This is a case of abandonment where the Ministry can and did
act properly in accordance with the provisions of s 20 of the
Public Service Act to treat the Grievor as having abandoned her
position and, accordingly, the Board has no jurisdiction to deal
with the matter.
2 On the merlts, thlS is not a grievance alleging improper use
of casual employees by the Employer.
3 Nor is this a case involving the elimination of a position.
)
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4 There was no discrimination against the Grievor because of a
failure to accommodate a physical limitation, even if the matter
were to be heard on its merits.
v
5. The Ministry has acted properly when it offered the RPT day
\
I Shlft Records Search Clerk position to the Grlevor as a means of
i
accommodating her handicap.
6. The Ministry was entitled to rely on \. the agreement of the
Union representative, as evidenced by Exhibit 15, whereby the
sufficiency of the accommodation was acknowledged. The Employer
relied upon the Union's agreement in offering the alternative
daytim~ job to the Grievor. )
/
7. There lS no eVldence that the Union ever resiled from lts
agreement, either before or after the Employer acted on April 1,
1993 by advising the Grievor in Exhibit 23 that it had determined
that she had abandoned her position ln accordance with the
provisions of section 20 of the ?ubllC Service Act.
a. It woul~ be ~bad policy" for the Board to allow the Union to
agree with the Emplpyer as it did that assigning the day shift RPT
Records Search Clerk position to the Grievor was a proper
I
accommodation and then to entertain a grievance filed which, in
effect, said that it was not
"
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51
9 The Employer relied on Hopkins, 373/86 (Springate) The
Hopkins case dealt with the application of the doctrine of estoppel
where, at p. 13, the Board found that it was "reasonable for the
grievor and the unlon to act on an understanding based on the
comments made by the employer's representative " Accordingly the
employer was held to be estopped from acting contrary to the
understanding between the parties.
\
10. The Employer also relied on Aitken, 1277/87 (Springate) to the
same effect. (
)
11. Reference was made to Johns, 308/90 (Stewart) In that case
the employer had openly engaged ln a longstanding practlce with
respect to flexible hours with the knowledge of the union, and it
was held that the union was estopped from challenging it~ It was
submitted that there was, in the case before us, an undertaking by
the Union based on its actions.
\
12 There were never any complaints made by the Union during the
considerable period of time that agency personnel were being
employed claiming that there being used amounted to a violation of
the collective agreement, and no grievance was ever filed about the
practice which was carried out openly and with the full knowledge
of the Union. It is, therefore, inappropriate for the Union to now
complain of the practice.
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52
13. In the .case \. of the Grievor and other RPT employees ln her
position, when the workplace was reorganized in July of 1992 such
employees had no rights under. the collective agreement. However,
recognizing the difficulties faced by them, the Emplqyer entered
into discussions with the Union to negotiate the effects of the
reorganization. In the result, employees such as the Grievor were
kept on until it was possible to amend the collective agreement
That is, management behaved reasonably and did not rely on its
strict rights. If it had done so the Grievor would not have been
gtven the opportunities that were afforded her
--'
14. Reference was made to Couture/Goddard, 2093/87 (Dissanayake)
In that case the grievors were employed as couriers who operated
vehicles The employer's transportation needs were met through two
\
departments. As a result of an audit of transportation services,
the employer concluded that it would be more efficient to
amalgamate the two departments under a single department headed by
one supervisor It was also decided that all vehlcle operators
would be brought under a single job specification and that 11
~
employees would be required. In the result the grievors lost their
positions, but were offered other positions in the housekeepin~
department of the employer which they declined, after which they
filed their grievances
15 In Couture/Goddard, one of the grlevors, who represented
himself
\
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53
) (
" submitted that the employer had several al t.ernate options
.
which would have enabled lt to retain [the grlevors]
Specifically, he pointed out that part-time couriers performed
a significant amount of work. It was his argument that if the
employer got rid of the part-timers, it would have enabled all
five full-time couriers [ihcluding the grievor] to secure
positions... "
.
16 The board in Couture/Goddard stated at p. 5
The Board wishes to dispose of this submission at the
;-.. establishes that the
outset The eVldence part-tlme
couriers did the bulk of thelr driving after hours,
during week-ends, and as replacements for sick or
vacationing full-time couriers. Thus the Employer's
position that it lS impractical to eliminate the part-
timers is very convincing. Quite apart from that, we
agree with Employer counsel that the use of part-tlme vs
full-time employees is a matter of organizatlon and
complement and therefore an exclusive management functlon
under section 18(1) of the Crown Employees' Collective
Bargainin9 Act. Thus the issue l.S beyond this Board's
jurisdiction.
)
17 Further relying on Couture/Goddard case, it was submitted that
the evidence of Ms. Kirsh had demonstrated that the branch
reorganization was for good faith business reasons resulting ln a
I
change in the computer system used and the deployment and use of
Data Input Operators. The decision that it was no ~onger necessary
to use RPT employees to perform data entry jobs during the day
J
shift was an exclusive management right protected by section 18(1)
of CECBA in force at the time.
t
18. The Grievor was offered alternative RPT work under the
provisions of Exhibit 2.
19 The Employer's alternative submission was that when the
Grievor raised an accomodation issue based on her alleged handicap
L
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54
(that she could not perform night work), the Union and the Employer
dealt with the problem and entered into an agreement based on the
acceptance of the existence of the handicap and made a second job
offer to the Grievor that amounted to reasonable accomodatlon ln
all of the circumstances.
20 Even if the Grievor suffered from the hanicap relied on by
her, and "it was lnappropriate to asslgn her to the first
alternative po~ition of Data Entry Operator because it was a night
position, proper accommodation was made to her by offerlng her a
comparable position during the day I
21. The second job offer made to the Grievor was a proper
accommodation of her physical condition and her only real excuse
for not accepting it was that it would interfere with her schedule
of classes at Ryerson.
22. Reference was also made to Szabo 292/91 (Saltman) In that
case the grievor claimed that she had been dismissed without just
cause and the employer raised a preliminary objection that the
grievanc~ was inarbitrable as the grlevor had not been dismissed
but had been declared to have abandoned her position pursuant to
s 20 of the Public Service Act
A public servant who is absent from duty without official
leave for a period of two weeks or such longer period as
is prescribed in the regulations made by an instrument in
writing be declared by his Deputy Minister to have
abandoned his position, and thereupon his position
becomes vacant and he ceases to be a public servant.
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55
23 The union, as in this case, took the position that the "so-
called abandonment was, in reality a dismissal for cause which is
arbitrable... "
. )
24 At p. 12 of Szabo, the Board noted that once a declaration has
been maqe pursuant to s. 20 of the Public Service Act it had "
. . .
no jurisdiction to deal with the matter unless the abandonment is,
in reality, a dismis~al for cause." Reference was also made to Tam
1/76; ~ 6/78 and Jones 1098/87.
25. 'At p.12, in referring to Tam, the Board noted that that case
held that an employee may be declared to have abandoned his or her
position regardless of the employee's actual intention " ln
. .
other words, even if the employee is intending to return to work "
26. The Board also noted, ibid.
,
I
. . moreover, as to the suggestion -that there was some
requirement to notify the Grievor prior to lssuing a
declaration of abandonment, it should be noted that there
lS no such requirement ln s. 20 of the Public Service
Ad.
27. It was reiterated that the Union is the sole bargaining agent
and the Employer deal~ with it accordingly. To do otherwise would
amount to an unfair labour practice
28. Reference was also made to Stacey, 818/84 etc. (Knopf). In I
that case, the Board, at p. 20 noted that " arbitration boards
. . .
,
': ~ I
~
56
are not compelled to accept medical certificates as having
unquestionable probative value and they can be legitimately
rejected by the employer."
29. Reference was also made to Re PanAbrasive Inc. and United
Steelworkers of America Local. 8777 (1993), 38 L.A C (4th) 434
(Clement) . In that case the grievor had suffered a work-related
injury which left him with a handicap and grieved that the employer
had not pro~ided him with work he was capable of performlng in I
accordance with art. 18.01 of the collective agreement which
J
stated
-
In the event that employees sustain injuries at work
during the course of employment and become physically
handicapped as a result thereof! every effort will be
made by the Company to give the handicapped employees
such suitable employment as is available.
30. The union submitted that art. 3.01 of the collective agreement
placed the employer under an obligation to observe the provlsions
of the Human Rights Code in the case of injured workers. Art. 3.01
states
The Company and the Union agree that there shall be no
discrimination ln the hiring, training, upgrading,
promotion, transfer, lay-off, discharge, discipline or
otherwise, of employees because 0,[ race, sex, creed,
religion, colour, age or national origin, union
membership or union activity
The Company and the Union agree to observe the provisions
of the Ontario Human Ri9hts Code and the Canadian Bill of
Rights.
31 At P 438, the arbitrator quoted from ~he provisions of the
Human Rights Code, RS01990, c H. 19
~
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57
The union herein, the employer submitted ,. lS looking to
the accommodatlon provision of the Human Ri9hts Code
(s 17(2)) only.
The grlevor herein is not seeking a return to his pre-
injury positlon If the grievor was seeking to return to
his pre-injury position, the accommodation lssue ~ould
then be relevant. This cas~ is not a case where the
laboratory technicia~ position is available and the
grievor was not considered. There was no discrimlnation
practised here upon the grievor by the employer and,
accordingly, this matter should end at this point
The Human Ri9hts Code, Part I, entitled "Freedom From
Discrimination", must be carefully considered
Section 5(1) states, with reference to employment,
that
5(1) Every person has a right to equal
treatment with respect to employment without
discrimination because of race, ancestry, place of
origin, colour, ethnic origin, citizenship, creed,
sex, sexual orientation, age, record of offences,
marital status, family status or hpndlcap.
The word "equal" lS defined ln s 10(1) of the Human
Rights Code to mean, "subject to all requirements,
qualifications and considerations that are not a
prohibited ground of discrimination".
Section 17 of the Human Ri9hts Code deals with
"Handicap".
Section 17(1) states
17(1) A right of a person under this Act lS not
infringed for the reason only that the person lS
incapable of performing or fulfilling the essential
duties or requirements attending the exerClse of
the right because of handicap.
Section 17(2) of the Human Ri9hts Code entltled
"Accommodation" states
""
17(2) The Commission, a board of inquiry or a
') court shall not find a person incapable unless it
is satisfied that the needs of the person cannot be
accommodated without undue hardship on the person
responsible for accommodating tho~e needs,
considering the cost, outside sources of funding,
if any, and health and safety requirements, if any
32. The arbitrator stated at p.442
~
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)
58
. The position of a lab techniclan was not available
following January 1992, and thus the employer was unable
to give that position to the grievor herein.
The employer, not havlng the position available to the
grlevo~, was not bound to make the position available to
the grievor under the Human Rights Code
33 Counsel for the Employer, relying on the PanAbrasive case,
submitted that ln order to rely on the provisions of the Human
Rights Code, the Grievor would have to show that the right to the
job she sought was denied to her because of her handicap Counsel L
also argued that the Employer did not have to create a job and had
the right to furnish a suitable alternative job to a handicapped
employee in these circumstances.
.\
34 The Grievor had not, at any time, stated that she could not
!
other than an 8 a.m. to 12 noon shift because of her handicap, and
in any event there were no such jobs available "then or now "
Union Argument
Counsel for the Union made the following submissions
1 The Board had jurisdiction pursuant to the provisions of s 18
of CECBA to determine whether the Grievor had been discharged for
just cause.
,
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59
2. As the Employer relied on its powers uqder s. 20 of the Public
Service Act, it must demonstrate that it acted in valid exercise of
the powers granted to it. It was submitted that t.he decision of
the Employer to deem the Grievor to have abandoned her position was
not a proper exercise of its power and the Board could, ln the
circumstances, reVlew the Employer's actions as a termination
without just cause.
3. Reference was made to Tam, 1/76 (Beatty) . At p.4 of the Tam
case, the Board stated that
. . the employer may hot unilaterally usurp the
jurisdiction of this Board and deny the grievor the
opportunity to come before us by assertlng that her
grievance is one of abandonment rather than dismissal.
Ultimately that determination is one this Board must make
pursuant to the mandate with which it is charged under s
18 (1) of the Crown Employees' Collective Bar9aining Act
However, in making that determination, this Board would,
of necessity, be required to hear the evidence
surrounding the termination of the grievor That is, it
would only be when that evidence has been properly placed
before this Board that a final determination could be
made as to whether [the grievor] had abandoned her
position or had been dismissed Accordingly and in order,
to make a determination of that lssue lt lS to that
evidence that we mus~ turn.
4. At pp. 7-8 of the ~m case, the Board noted that the terms of
s. 20 of the Public Service' Act make manifest that where an
employee has been shown to be absent without official leave for the
period described, the deputy minister (or his or her designee)
.J
would be authorized to declare the employee had abandoned his or
her position regardless of the actual intention of the employee.
This was contrasted with the situation in the private sector where
an employer alleges that an employee has quit his or her job.
)
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Under s 20 of the Public Service Act the employer need only
establish that the employee's absence was "without official leave,"
and the deputy minlster may declare the employee to have abandoned
his or her position regardless of the employee's actual lntention.
Drawing an analogy from the private sector the Board stated, at p
8
. . . it [the analogy] would more properly be to those
cases in which an employer, pursuant to the terms of the
agree~ent, strips an employee of his or her seniority
rights for having been absent without leave for some
proscribed period of time. (Re Canadian Tyler
Refrigeration Ltd. and United steelworkers Local 6585
(1974), 8 L.A.C. (2d) 63 ( Shime) .
5. At pp. 8-9., the Board stated
However it is equally plain from the language of s 20
\ that simply being absent from work for some period ln
excess of two weeks would not support a declaration of
abandonment. Rather the condition precedent which must
be satisfied in order to validate a declaration of
abandonment is that the absence be "without officlal
leave". Necessarily then if it could be established that
an employee was absent on official leave but J:.he employer
persisted in its assertion that the employee had
abandoned his or her position, this Board could properly
assume jurisdiction of a grievance flIed by that employee
and afford the appropriate relief. Very simply, in such
circumstances, if the employer remained adamant ln its
position that an employee had abandoned his or her
position in circumstances in which s.20 did not apply, it
'1 would be both proper and necessary for this Board to
declare, ln ;the absence of any other claim by the
employer, that the grievor had been dismissed without
just case and to afford him of her the necessary relief
6. I At p. 9 the Board st~ted
In essence then the task confronting this Board is to
determine whether [the grievor] was absent from December
1 until December 23, "without official leave"
r-... r"","" .
I
.6..1
7 . The Board continued, at pp. 9-10, after noting that there was
no definition of "official leave"
. . . In the absence of such a definition one must presume
that the phrase "official leave" refers to leave for
which the requisite authorization actually was, would
have been, or should have been granted. That leave which
was properly authorized would properly be characterized
as "official leave" is manifest. Similarly there could
be no dlspute that an employee who suffered some
unexpected injury or illness could properly be~said to be
absent on "official leave" even and although of necessity
such leave could not have been authorized until after his
or her absence had occurred. Equally we believe one
would be obliged to hold that an employee was on official
leave, even and although the employer may have refused to
authorize his or her absence, if it could be establish~d
that the employee did in fact have reasonable and
justifiable reasons for his or her absence. Put somewhat
differently it would not suffice for an employer who
claimed that an ~mployee had abandoned their position to
argue that a leave was or would have b~en denied. Rather
and to the contrary, to sustain the finding that an
employee was absent "without official leave", it would be
incumbent upon the employer to establish such leave was
not unreasonably, disqriminatorily or arbltrarily
withheld.
8 At p. 15, the Board concluded
. . . Once having determined that the conditions on which
the deputy minister's declaratlon must be premised and
been satisfied, this Board has no jurisdiction to
interfere with that decision
9. The Board should strictly ensure that the s. 20 power has been
properly executed so as not to deprive the Grievor of a statutory
right to grieve her discharge and to ensure that the Board has not
been stripped of its remedial jurisdiction except in strict
compliance with the law.
-~
"'
,
, '-'"
f
.Q2.
10. The onus was on the Employer to demonstrate that the power had
been valldly exercised. As it had the power to invoke s 20, lt
was aware of the constituent facts relative to its exercise
11 The constituent elements that must be demonstrated are
a) that the grievor was absent without official leave and that
/
leave had been properly denied (the Beal .test);
b) that the period lS as provided for in the statute or the
regulations;
c) that the proper person has exercised the power rather than
I
someone else
12 Reference was made to Exhibit 23 being the letter from Sharyn
D Carlson informing the Grievor that she had determined that the
Grievor had abandoned her position in accordance with s 20 of the
Public Service Act and the authority delegated to her by the deputy
minister It was submitted that there was no evidence before the
Board as to who actually made the decislon to deem the Grlevor to
have abandoned her position. It was submitted that Ms. Gottschling
only testified that Ms. Carlson and Ms Wilson were involved in the
-
discussion Ms. Gottschling was also said to have been unable to
state that she had recommended that the power be exerc.ised Nor
was Ms Kirsh able to assist as she was not part of the "decision-
making loop per se" as of April 1 , 1993. We were urged to find
that the evidence, at best, only disclosed that Ms Carlson and Ms
)
r-,
,
63
Wilson were advlsed of some developments in the case but that the
evidence went no further than that
13. We were asked to find that there was nothing before the Board
that would indicate the basis for the exercise of the power ln
Exhibit 23, and that the Board had no way of knowing whether the
Employer's representative considered all of the relevant and
ignored all of the irrelevant facts which represent a "basic
requirement to the exercise of the discretion. II'
14. We were asked to find that the only evidence before us was
that other members of management in the department, without the
power to make the decision, would be prepared to make that
decision.
15. Reference was made to Exhibit 17, being a letter of March 17,
1993 from Ms. Kirsh to the Grievor, and particularly to the third
paragraph
Under the terms of Section 20 of the Public Service Act,
"a public servant who is absent from duty without
official leave for a period of two weeks or such longer
period as is prescribed in the regulations may by an
lnstrument in writlng be declared by hlS Deputy Minlster
to have abandoned his position, and thereupon his
position becomes vacant and he ceases to become a public
servant".
16. It was submitted that Exhibit 17 suggested that there was no
discretion in the exercise of the power; and that the result was
~
automatic )
/'
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64
17 It was submitted that there was no indication that the power
had been properly exercised.
18 Reference was also made to Sandham, 80 2 /92 (Dissanayake) In
that case the grievor grieved that the employer had unjustly denied
her leave with pay under art 55 (1) of the collectlve agreement
which reac:is
A Deputy Minister or his designee may grant an employee
leave-of-absence with pay for not more than three ( 3 )
days in a year upon special or compas~ionate grounds
J
The grlevor left work upon receiving a call from the day-care
centre informing her that her three-year old daughter was ill and
ln accordance wlth the day-care centre's policy the grlevor was
requested to pick up the child as soon as possible, which she did
with her supervisor's consent She called the doctor who was not
available that day and made an appointment for the following day
(April 22, 1992,) . On April 22 she called ln and informed her
supervisor that she would not be reporting to work because she had
to take her daughter to the doctor, which she did -Upon returning
to work on April 23, 1992, the grievor submitted a written request
for special leave under art. 55(1) for one and a half days which
she missed on account of her daughter's illness, and it was the
denial of this request that led to the flling of the grievance
\
19 The Board found that there was no exercise "at all" of the
discr~tion under art. 55 (1 ) (p. 1) , and noted, at pp. 1-2, that
.,
"
65
there was no evidence before it "to indicate that either the Deputy
Minister or his desigpee . . was ever involved ln regard to the
grievor's request under art 55 (1) " The only wit:ness called by
the employer was not the\.designee of the Deputy Minister and her
r r
evidence left the Board in no doubt that it was she, and not the
proper designee, who made the decision to deny the grievor's
(
\
request. And it was she who prepared a letter informing the
grievor that her request had been denied, signed it and sent lt to
her.
"
20. At pp. 3-4 of Sandham, the Board noted that while it agreed
f
with the proposition that the legal and evidentiary burden ln a
grievance under art. 55 (1) was upon the union, it was not prepared
to go so far as to require it to call evidence on how the employer
went about making the decision At p. 4 the Board stated
. it is the Employer who has the exclusive knowledge of
how the decision to deny any employee's request for leave
was denied It is therefore incumbent upon it to lead
evidence in that regard.
21. Reference was made to the statement of the Board at p 5
That is not to suggest that the Deputy Minister or his
designee must personally and exclusively deal with every
employee's request under article 55(1). He may rely on
information gathered by someone assigned by him, but he
must ensure that all relevant information is made
available to him. Nor is there anything to preclude the
Deputy Minister or his designee rely'ing on a
J recommendation by else. However, he must
someone
consider all of the information presented together with
the recommendation and decide whether he should accept
that recommendation.
In the present case, the decision was made by Ms. Lowrey,
and she signed the letter to the grlevor. There lS
~ --..
~
66
nothing to suggest that the designee had any input or
involvement whatsoever In the Clrcumstances we find
that there has been no proper exercise of the discretion
conferred by article 55 (1) .
\
22 It was submitted that there was insufficient evidence to show
how the designee came to the decision to exercise discretion under
s. 20 of the Public Service Act Ms. Gottschling was said to have
"takeh us to the brink, but not beyond." It was submitted that she
could have glven evidence that she brought the relevant facts to
the attention of the designee - indicating what those facts were,
with some particularity. If she had done this, the Board would
I
have been ln a position to assess whether the power had been
validly exercised In the absence of such evidence, it was
submitted that the Board must find that the power was not validly
exercised.
\
23. It was submitted that although there is a wlde latitude in the
designee in exercising the power, it lS not "unbridled" and
)
adjudicat9rs must decide whether the exercise of the discretion met
certain minimum standards.
24. Counsel summarized his view as to the minimum requirements for
the valid exercise of the power
'-
a) The power must be exercised in good faith and without
discrimination. Discrimination incorporates the notion of
treating like cases in the same way and not acting 9n improper
-- --. .;
~..
) ;
67
\
)
concerns Discrlmination was said to include! those matters
covered under the Ontario Human Rights Code.
b) There must be a genuine exercise of the discretion based on an
assessment of the individual merits of the case before the
decision is made by the decision maker.
c) All relevant and no irrelevant facts should be considered.
25. It was suggested that in the case before us the Board did Qot
have evidence as to how the discretion was in fact exercised by the
decision maker. It was submitted that the Board was left to
"guess" as to how the declsion was made and on what f~cts
, ,
Reference was made to the final standard cOhtained in Tam.
that there must be an objective review of the decision. That is,
the Board could determine that if on the objective facts leave
would or should have been granted, then there was not a genuine
/
exercise of discretion by the Deputy Minister's designee
26. It was submitted that on the facts, the Grievor should have
been placed on leave until the Employer had properly and reasonably
accommodated her disability.
27. The Employer was said to have acted improperly by not
accommodating the Grievor in her position of Data Entry Operator
Arranging for her to work a different schedule than the night shift
on an entirely different job (Records Search Clerk) did not amount
--
0 -. -~
('
68 \
to the klnd of reasonable accommodation that the Grievor was
entitled to
28 The Grievor had placed the Employer on notice at all material
times that she had not abandoned her position and the letters from
"- her l~wyer made this abundantly clear. Particular reference was
made to Exhibit 22 in which Mr Fehrle states that
\1 woul~ like to emphasize once more that Jenny Tran lS
not ln any way "abandoning" her employment wlth the
Companies Branch. She has tried to deal with the Union
and her Employer in a reasonable way at all times
29 There lS no longer any issue as to whether the Grievor
suffered a handicap within the meaning of s 10 (1) of the Ontario
Human Ri9hts Code because, by its own admissions, the Employer
treated this to be the case.
30. The Code "quasi-constitutional" imposes I
lS a statute which
obligations on the Employer in exercising the discretion provided
for in s 20 of the Public Service Act, ln the s'ame way as the
collective agreement is subject to the provisions of the Code.
31. The Employer failed to accommodate the Grievor in accordance
with the provisions of art. 17 of the Human Rights Code, quoted
above.
32 Specifically, it was submitted that the amendment to the
collective agreement by Exhibit 2 is subject to the provisions of
~
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.;
69
art A of the collective agreement, and hence t.o the duty of
reasonable accomodation under the Code.
33 Reference was made to Ms Gottschling's evidence concerning
Exhibit 26, being the Ministry's informal attempt to create a
document to implement the terms of Exhibit 2 , and to Ms.
Gottschling's statement that the Employer's endeavour. to match
1
J
employees to positions ~id not consider the disability of any
--/
employee. Reference was made to step 1, para. 2c of Exhlbit 26,
where the Employer only considered whether the employee had the
"skills requirement of [the] position" without any regard to
whether the employee had a handicap, notwithstanding that he or she
had the necessary skills requirement.
J /
34. No fault was found with the Employer's conclusion that the
Grievor co~ld perform the Data Entry Operator job on the nlght
shift before it had evidence of her disability However, once the
evidence of the disability was brought to its attention, the
Employer was obliged to, but did not, "revisit" the match so that
it could consider its obligation to reasonably accommodate the
Grievor's handicap.
35. In failing to properly carry out its obligations under step 1,
the Ernployer denied the Grievor access to the rest of the RPT
assignment process set out in Exhibit 26
I
. ~ -.....
70
36 By its actions the Employer ignored the fact of the Grievor's
actual handlcap, and, instead of accommodating it, continued to
discriminate against her.
37 The Employer improperly "pigeon-holed" the Grievor relying on
one contract provision, ln order to avoid going back through the
matching process as it was required to do once it became aware of
and accepted the existence of the Grievor's handicap.
38. The Employer having accepted the reality of the Grievor's
handicap, the lssue before the Board was whether its actions ln
assigning the Grievor to a Records Search Clerk position amounted
to reasonable accommodation under the Code.
39 ~Once the Employer agreed that the Grievor's handicap prevented
her from working nights as a Data Entry Operator, it had an
obligation to consider if there was a Data Entry Operator position
t
that could be performed during the day, and it could not avoid its
obligation to reasonably accommodate her handicap by finding
another, and different, job _that she could perform during the day
40. Assigning the Grievor to a Records Search Clerk position was
an attack on her dignity, and it was noted that she described the
Data Entry Operator position as having a higher status than that of
the Record~ Search Clerk.
~
--..., ~ """
'"
=
71
41 Havlng agreed that the Grievor suffered from a disability that
was entitled to reasonable accomodation, the Employer failed to
establish that placing her in a day shift Data Entry Operator
j
position could not be done "without undue hardship "
\
42. There was available work on the day shift as a Data Entry
\
Operator (that performed by agency personnnel) , to which the
Grievor should have been assigned.
\
43 Referring to the PanAbrasive Inc. case relied upon by the
Employer, it was submitted that it was distinguishable on its
facts. In PanAbrasive, no such job as was sought by the grievor
I
was available. In the case before us, the work of a Data Entry
- Operator on the day shift was done and continues to be done by the
agency personnel.
44 The work that the Grievor performed between July and December
of 1992 was and is being performed by agency personnel. TQis lS
not a case about whether agency personnel were part of the
bargaining unit. It was open to the Employer to assign Data Entry
Operator work on the day shift to the Grievor instead of to an
agency person, and there was no evidence that the cost to the
Ministry of doing so would be more or less depending on whether the
Grievor or an agency person was assigned to perform it.
72
\
45 On the evidence of Ms Kirsh there would be one agency person
lost to the day shift if an RPT Data Entry Operator posltion was
given to the Grlevor, and there was no evidence to show what the
increase in cost of superV1Slon would be or what the nature of the
problems to the Employer would be if the Grievor was assigned to
the posltion.
46. In response to the Employer's submission that assigning the
Grievor to a day shift RPT position performing the work of a Data
Entry Operator would leave a workstation vacant for half a day, it
was submitted that there was no evidence to show that the afternoon
shift could not be assigned to an agency person
,
47. It was submitted that there was an absence of evidence to show
any undue hardship to the Employer if it accommodated the Grievor
by assigning her to a day shift RPT Data Entry Operator posltion
A bald statement of "operational difficulties" that would ensue if
the Grievor was accommodated as requested does ~ot amount to undue
hardship. A "sketchy assertion" that the request of the Grievor
could not be accommodated lS insufficient to demonstrate undue
hardship
48. Reference was made to the fact that the Employer had not
)
contracted out the work performed by the I agency personnel and
,
retained control over the way in which the work was performed by
them The evidence disclosed that there was no on-site agency
-'. ;
'--- I
)
;
13
supervislon and that the agency personnel had been integrated into
the workplace There was no evidence to show using an agency
person to work one half day on a part-time basis would cause undue
hardship for the Employer. The same argument was made in relation
to the absence of evidence to demonstrate that the Employer would
suffer undue hardship if it had one fewer agency person performing
Data Entry Operator work during the day shift.
49. We were asked to find that Ms. Kirsh had indicated in cross-
examination that the Employer had made no examination of
accommodating the Grievor in the manner suggested by the Union
50. Reference was made to/the case of Myma Marzano and Nathar Ltd.
and Nathan Lan9burt (1992) , 18 C.H.R.R. D/248, being a decision of
I
a Board of Inquiry chaired by Bernard Adell under the Ontario Human
Ri9hts Code Reference was made to paras 32 and 33 found at
p. D/252
[32] Counsel for the Commission argued that the
accommodation requirement in s. 16(la) should be taken to
include not only the substantiVie obligation to
accommodate, but also the procedural obligation to thlnk
carefully about possible forms of accommodation. In
support of that argument, counsel referred to a paper by
M. David Lepofsky, entitled "The Duty to Accommodate A
Purposive Approach" (1992) Canadian Labour Law Journal
(No. 1). Mr. Lepofsky says, at pp. 13-14 -!
An assessment of an -employer's efforts at
accommoda'tion must go beyond the employer's
substantive reasons for not accommodating It
should also include an evaluation of the
sufficiency of the process by which the employer
reached its decision on accommodation. The duty to
accommodate has both substantive and procedural
components. The duty is to take steps, short of
i
~ ~,
..
-
74
undue ha,rdship, to accommodate the individual's
needs One requisite step lS for the employer or
other parties under a duty to accommodate to
undertake a thorough and adequate process of
inquiry and deliberations on the request for
accommodation. If an employer simply rejects a
request for accommodation out of hand, without
giving the matter adequate thought and attention,
lncluding a thorough exploration of the
possibilities, it can hardly be said to have taken
adequate steps to accommodate
[33] It would be unwise, ln my view, to accept this
argument ln full and to hold that there lS a separate
procedural aspect to the duty to accommodate. Imposing
a procedural duty on respondents to conduct a thorough
inquiry into possible accommodative measures would run
the risk of encouraging lengthy digressions, before the
board of inquiry, on the internal del~berations of
employers or other respondents If a respondent can show
that a particular form o~ accommodation cannot reasonably
be demanded ~n the circumstances at hand, it should not
\ also have to demonstrate how exhaustively lt has
considered the matter. Conversely, if a respondent
cannot show that a particular form of accommodatlon lS
unreasonable in the circumstances, it should not be able
to bolster its case by showing that it has considered the
matter at great length However, the failure of a
respondent to consider any accommodativ.e measures at all,
in a situation where such measures might well have worked
(as in the case now before me), can surely be taken as
evidence of a failure to meet the duty to accommodate
51 It was submitted that in this case there was no evidence to
show that the Employer had turned its mind .to accomodating the
Grievor in a Data Entry Operator position during the day shift
52 In response to the submission of the Employer that the sole
bargaining agent was the Union and that its purported agreement to
the accommodation now foreclosed the Union from alleging that there
I
had not been proper accommodation, Counsel for the Union argued the
cases relied. upon by the Employer did not involve an alleged
/\ ~ \ ;
"-
75
violation of the provisions of the Code, as was the case ln the
matter before us Here, it was submitted, the rights of the
Grievor under the Code were "superimposed" on the provisions of the
collective agreement and must be given precedence. That lS, the
Unlon could not bargain away the Grievor's rights not to be
discriminated agalnst on the ground of handicap as provided for in
the Code and incorporated into the collective agreement
,
53. Counsel for the Union also referred to the Johns case relied
upon by the Employer, where the estoppel found related to then art
47 of the collective agreement It was submitted that the right of
the Union to forego a grievor's rights under the Code were not part
of its rights as the exclusive bargaining agent. Any agreement
between the Union and the Employer which amounts to foregoing the
Grievor's rights under the ~ cannot support an estoppel
argument.
54 ~ights granted to a bargaining unit employee under the Code,
such as those requiring an employer to reasonably accommodate a
handicap to the point of undue hardship, are not for the Union to
I
forego so as to give rise to an estoppel binding on the employee.
The obligation of reasonable accommodation is owed to the employee,
in this case the Grievor, and,/accordingly, the matter is not at an
end because the Union agrees that the accommodation offered is
appropriate. It is not possible to contract out of rights under
the Code. - .
I
. -~
\
76
55 Reference was made to the Pa-nAbrasive, at p. 440, where the
board noted Re Glengarry Industries/Chromalox Components and
U.S.W.A. Loc. '6~76 (1989) , 3 L.A C (4th) 326, where the collective
agreement purported to allow termination of an employee suffering
from a handicap. The grievor ln that case was "subject to
automatlc termination due to her innocent absence as a result of
her compensable injury. " Arbitrator Hinnegan found that the
grievor did not h~ve "the same right as other employees to
challenge her termination within the standard of proper cause " We
were asked to find that, in effect, the Glengarry Industrles case
stood for the proposition that the agreement of the employer and
the union could not deprive a grievor of his/her'rights under the
Code.
56 We were asked to note that there was no evidence to
demonstrate that the agency employees furnished by Goodwill
suffered from disabilities, and to find that the evidence of Ms
Kirsh was impressionistic ln this regard, and that only some of
them (the number not being identified) suffered from physical or
emotional disabilities
57 It was also submitted that we should reject the argument of
the Employer that it's making the second offer to the Grievor was
to get around the problems of art 4 and art 59 of the collective
agreement it was submitted that neither of those articles applied
to regular part-time employees
'---'
-...... ----- "
.
77
58. We were also asked to reject Ms. Gottschling's evidence that
it was not possible to transfer the Grlevor under art 5.5 as it
had no application to regular part-time employees.
59. We were aI_so asked to find that the Employe,r' s purported use
of art. 60.6 of the collective agreement to effect the move of the
Grievor from the Data Entry Operator. to the Records Search Clerk
position should not be accepted by us, as that article deals with
a position that is "modified to accommodate an employee with a
disability," whereas the position to which the Grievor was moved
(Records Search Clerk) was an entirely different posltion
60 It was also submitted, referring to Exhibit 14, that there was
no agreement by the Union other than to the purported J
accommodation.
\
61. It was submitted that, based on the facts before it, the
Employer should have granted official leave until it had reasonably
accommodated the Grievor's handicap.
62. Because there was no evidence that the dlscretion under s 20
of the Public Service Act had been properly exercised, the Board
was asked to find that the discharge of the Grilevor was without
just cause, there being no evidence of cause.
I
,..--", ~
78
63 The Union sought a declaration that there had been a violation
of the collective agreement; an order of reinstatement; an order
that the reinstatement be subject to the Employer accommodating the
Grlevor's handicap and that the Board remain seized of the matter
including any issue of liability
Reply Ar9ument of the Employer
Counsel of the Employer made the following submissions ln
reply.
1 It was submitted that the facts in the Sandham case and those
in the case before us are dissimilar In Sandham, the decision-
maker who made the decision was not one properly designated
2 It was submitted that Exhibit 23 was executed by a person
properly delegated with authority to do so and that on its face the
letter showed that the decision had been made properly
3. We were asked to find that the evidence that we heard about
the Grievor must have been transmitted to the designee. Ms
Gottschling stated that she had discussions with the decision-maker
and we should therefore find that the decision-maker was fully
briefed, there being no evidence of any improper consideration
/~ -
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79
4. It was submitted that there was "no magic" ln having the
decision-maker appear before us and that we ought to find a
"presumption of regularity. "
.,
5. Counsel for the Employer responded to the Union's suggestion
as to the effect of Exhlbit 2. It was submitted that a regular
part-time employee only becomes a full-bime employee pursuant to
art 24 if he or she could not be placed. In this case the Grievor
was placed in a position.
-.
6. Counsel for the Employer agreed that art 4 of the collective
agreement had no application to this case. He also stated that
application of art. 60 1 was by way of analogy.
7. Counsel for the Employer stated that art. 60.6 might not apply
in connection with the Grievor's being appointed to the Records
Search Clerk position. However it was submitted that the evidence
indicated that the Union had agreed with Ms. Gottschling's position
in Exhibit 14 that the requirements of 60.6 had been waived
8. The Employer continued to rely on the fact that lt had
obtained the agreement of the Union (see Exhibits 14 and 15) to the
Grievor's being placed in the Records Search Clerk position and
sent on the decision to the Grievor. It was submitted that there
can be an estoppel where the Union has made a representation as it
did in this case.
-
I
,~.
80
9 In response to the Union's reliance on the Marzano case, it
was submltted that ln the case before us the Employer had engaged
~
in consultation and consideration of the rights of the Grievor and
had only arrived at its decision after a full examination of the
facts in the light of its legal obligation to the Grievor It was
submitted that the response of the Employer was ln complete
accordance with its obligations and that the difference between the
\
duties and responsibilities of the two positions, although
significant, did not alter the fact that both were classified as
OAG 4. If the Grievor was displeased with the decision of the
Employer and felt that it was not a proper accommodation she should
have furnished further medical evidence to establish this fact
10 By agreement, the Emp,loyer filed with us, after the hearing,
the case of Pitirri, 1685/92 etc. (W Kaplan) .
11 In that case the grievor was formerly a correctional officer
at a detention centre and grieved that he had been unjustly
dismissed from hlS employment The essential lsslie before the
Board was based on the union's position that the employer "among
other things, failed to exerClse its duty to accormhodate the
grievor. The Employer [took]) the position that it had acted
properly in every respect "
-----
12 The grievor was a contract employee who was required to work
on an on-call basis that usually came early in the morning or late
'--
-
"
~
81
at nlght and the duration of the on-call shifts were determlned by
the detention centre's needs. When called in at 18 45, the grlevor
would either work until approximately 21 15 or 07 1 ~. Sometlmes he
~l
(
was advised about the length of his shift when he arrivea at 18 45;
at other times he would not be told that he was working through the
night until later in the evening.
13 From the outset of his being l:lired as an unclassified
correctional officer on cpntract from December 1989, the grievor
experienced certain difficulties when working the night shift
14 In 1985 or 1986 the grievor had an operation When he worked
nights thereafter he developed serious physical problems which
i
became more severe over the course of the night. After working
approximately six months after the development of his serlOUS
physical problems, he began to mention them to his commanding
officers and specifically informed all of the sergeants that night l
shifts made him ill. As a result he was able to "generally avoid
working night shifts."
l
15. In March of April of 1992, he was advised that he was
suffering from ulcerative colitis. He was only required once, ln
r
all of 1992, to work overnight; On May 8, 1992, when no one else
could be found, the grievor worked overnight He became ill during
the night shift, after which he went home to bed. He woke up ln
severe paln and was treated at the hospital for several days.
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After the incident, the grievor was off-work for ten days It was
the last attack that made him realize that he could no longer work
nights, and he went to see the scheduling officer to request
accommodation The scheduling officer knew nothing about the
centre's accommodatlon obligations, so the grievor then approached
a lleutenant at the centre who was also unfamiliar with the
centre's duty to accommodate. Eventually the grievor obtained a
copy of the Accommodation Directives and Guidellnes issued by
Management Board Secretariat, which he forwarded to varlOUS
individuals. The scheduling officer advised the grievor to obtaln
a doctor's hote which he provided, whi.ch stated that the grlevor
suffered from ulcerative colltis and required stability in his life
to avoid flare-ups and also stated that the grievor "should avoid
shift work ..
./
16 Copies of the doctor's note were provided to the Scheduling
Officer and the Assistant Superintendent of Operations at the
centre. The grievor gave clearance to have the Ministry's chief
medical practitioner communicate with his doctor for the purpose of
obtalning information about his condition, but the grievor did not
hear anything about his request for accommodation until September
and did not wor~ any night shifts during this period -
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17 On September 23, 1992, the grievor was working on the day
shift when the Assistant Superintendent of Operations advised him
I
that he had a new contract ready for him, as his current contract
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was due to expire on September 30, 1992. The nE~W contract was
identical to the other contracts the grievor had recelved except
that it stated that "In an effort to accommodate the employee's
\
medical condltion, the hours of work will always fall between 18 45
hours and 7 15 hours the next day. " The grlevor informed the
Assistant Superintendent of Operations that there must have been a
misunderstanding as thelaccommodation he requested was that he not
work the night shift The Assistant Superintendent replied that he
would look into the matter and then get back to the grlevor. At
that time the grievor felt that he had made it clear that he was
not able to work between 10 p.m. and 7 a.m..
,.18. The' grievor was scheduled to work on September 30, 1992 at
18 45. He received a telephone call in the morning of that day
/'
summonlng him --to a meeting with the Assistant Superintendent
Operations where he was presented with the same contract he had
earlier been provlded with. The grievor again suggested that there
must have been a misunderstanding. The Assistant Superintendent
informed the grievor that he was aware of his medical condition and
the contract contained the accommodation the employer was prepared
to offer with respect to it.
\ of
19. At a meeting that followed the meeting on the mornlng
September 30, 1992, at which there was a union steward and another
member of management, ,the grievor asked for more time to obtain a
more precise medical letter, which request had earlier been
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rejected by the Assistant Superintendent Operations There was (
apparently enough time prior to the start of the grievor's shlft to
attend at his doctor's office to obtain another letter so that
there would be no prejudice to the employer It was also pointed
out to the Assistant Superintendent that the grievor had, in the
past, worked for considerable periods of time after his contract
had expired and that in the circumstances of this case it was not
essential that a new contract be immediately signed The Assistant
Superintendent refused the request for additional time and advlsed
the grlevor that this was the contract he was being offered and
that he could either accept it or reject it When the grlevor
refused to sign the new contract he was pald for hlS last scheduled
shift and escorted out of the centre
'-
20. Several days later the grievor furnished the centre with a
more detailed letter from his doctor dated October 4, 1992 ln whlch
the doctor stated that the day shift would provide the least amount
of stress on the grievor and afford him with the most amount of
stability for his ulcerative colitis (
21. The Assistant Superintendent of Operations testified that the
employer, after confirming the grievor's medical conditlon,
concluded that he could be accommodated by providing him with
steady shifts After reviewlng the centre's operational needs, the
grievor was offered the specific accommodation of steady night
Shlfts. The delay that ensued between the accommodation request
.,
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and the accommodation offered was as a result of the process of
consultation as well as medical liaison between thE~ grievor's and
the ministry's physicians.
22. The Assistant Superintendent of Operations, upon being advlsed
by the grievor that he could not work the night shift for medical
reasons, agreed to and did double check his ihformation, and then
endeavoured, as much as possible, to fairly divide the available
work among all employees.
J
23. On September 30, 1992 the Assistant Superintendent of
Operations met with the grievor and advised him that the centre's
initial understanding as to the necessary accommodation had been
confirmed. In the result, the accommodation offer was not changed.
24 As in the ca~e before us, the union's position in the Pitirri
case was that the employer had breached the provisions of art A of
the collective agreement in failing to accommodate th~ grievor on
the basis of handicap and that the centre had not only failed to
exercise its obligation, it had discriminated against the grievor
ln the pro~ess of not doing so. Union counsel, ln Pitlrrl,
submitted that there was no issue between the parties that the
'--
grievor was S!uffering from a handicap and that the centre was
obligated under the collective agreement and in law to accommodate
the grievor to the point of undue hardship
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25 Union counsel .in Pitirri argued that the emp 1 oye r' was
obligated to accommodate the grievor and that the accommodation
required was (at p. 22) " the formal continuation of the
effective status quo " That was, not requiring the grievor to work
night shifts. It was submitted, ln Pitirri, that the employer
offered the grievor an accommodatlon that was directly contrary to
his stated medical requirements, which was not what the duty to
accommodate was all about.
,
26 The employer in Pitirri argued that there was no issue between
the parties that the grievor suffered from ulcerat~ve colitis, but
added that that was not the issue in the case~ What the issue was,
was whether working evenings and nights would cause a flare-up of
\.
the grievor's disease. It was the employer's position that there
had been no evidence indicating a connection between the two and
that the union's evidence on the point was not sufficient to create
an accommodation obligation
27. At p. 27 of the Pitirri decision, the Board concluded
~ Although there was no doubt that the grievor suffered "from an
(
unfortunate and ,periodically painful condition" there was
insufficient evidence to establish "that thlS condition impalrs the
ability of the grievor to fully perform at work, \ that this
or
disease lS somehow affected by conditions at work. If some nexus
had been drawn our decision would have been otherwise. The
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(
evidence lnpicates that any of a number of factors could lead to a
reoccurrence of the disease. . ."
28 At p. 28 of Pitirri, the Board concluded that if the union had
established a connection between night shifts and flare-ups of the /
grievor's disease it would have found that the grievor was
"-
suffering from a disability and the centre was required to
accommodate the disability to the point of undue hardship Based
on the evidence that it heard the Board stated that it would (at
p 28)
. .. likely [have] found that the centre could have
accommodated the grievor by restricting him to day and
evening shifts anq that doing so would not constitute an
undue hardship in this particular case. And had we made
these findings, we would have found that the centre
f:ailed to accommodate the grlevor, and we would have
directed an appropriate remedy to restore the grievor to
the position he would ha~e been in but for the breach.
\
Discussion and Decision
1. We were asked by counsel for the Employer to conclude that
there existed a "presumption of regularity" with respect to Exhibit
(
23, being the letter to Ms Tran under the name of Sharyn D
Car 1 son, the designee of the Deputy Minister, the letter being
signed on her behalf by D. Wilson. In submitting the existence of
a presumption of regularity, counsel for the Employer was relYlng
on the common law presumption that is sometimes referred to by its
Latin label omnia praesumuntur rite esse acta. In referring to the
)
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presumptlon, Sopinka, Lederman and Bryant ln EVldence (2nd ed -
Butterworth's (1992) , state at p 119
. in its narrower appllcation, the presumption serves
to regularize the appointment and acts of persons actlng
inan official capacity Where a person is shown to have
acted ln an official capacity it lS supposed that the
person would not intrude herself or himself into a public
situation without authorization. Furthermore, the
person's acts are presumed to be regular
The authority for the last proposition lS Re Mor.ris Provinciai
Election (1907), 6 W.L.R. 742; affd. 7 W.L R. 233, 17 Man. R 132
\.
(C A.).
2 The exercising of jurisdiction under s. 20 of the Public
Service Act is a solemn act with great significance, especially for
the employee deemed to have abandoned his or her position
Although we agree with counsel for the Employer that no "heroic
effort" need be made to establish that the Deputy Mlnister or
his/her designee properly complied with the provisions of s 20, it
is not too much to expect that the person who testifies on behalf
of the Employer with respect to the due exercise of the Employer's
rights under s. 20 will give sufficient evidence so as to satisfy
the Board as to what information was before the Deputy Minister or
his or her designee, that was taken into consideration in arriving
at the decision
3. The presumption of regularity enables us, without difficulty,
\
to conclude that the designee acted in her official capacity as the
I
designee of the Deputy Minister. Insofar as the presumption that
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the acts of the designee are regular, there was before us evidence
of a dlscussion between Ms. Gottschling and the desi13nee concerning
the facts relating to the Grievor's absence. There was ample
opportunity for Ms. Gottschling to clearly indlcate the nature of
the facts that were placed before the designee and the extent and
nature of the discussion that would be expected to place the
designee in a position to exercise her discretion
.-/
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4. Al though Ms Gottschling was an honest and forthright witness,
she did not responsively answer the questions that were put to her
concernlng exactly what was discussed with the designee and what
information was placed before her. The evidence was somewhat vague
and there was a clear lack of partlcularity as to what was said and
what was produced to assist the designee in making the decision
We do not know why Ms. Gottschling was not more responSlve,
although she did, on a number of occasions, indlcate the problem
for her as a result of the effluxion of time Slnce the fillng of
the grievance and the time she testified Nevertheless, given the
importance of the decision, and given that the union cannot be
r ~
faulted for the delay, the Board cannot consider the fact that Ms.
) Gottschling's inability to testify with greater particularity may
have been as a result of the passage of time What is clear lS
that the Board does not have sufficient information to satisfy
itself that the designee was in receipt of the relevant information
that would be necessary for her to properly exercise her
discretion In particular, it does not appear that she was ln (
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90
possession of any of the communicatlons from the Grlevor's lawyer
which could have had an impact on the making of a decision under
s. 20 at that time The evidence of Ms Kirsh was no more helpful
. / regard have observed, the respons'lbility the
ln thlS As we on
Employer could be satisfied quite easily Glven the importance of
the decision, it would have been a simple matter to keep a record
of the discussion(s) with the designee and of the materlal placed
before her.
5 Assuming that the presumptlon of regularity applies to the
acts of the designee so as to presume them to be regular, the
/
evidence that we heard was sufficient to overcome the presumption
- /
6 Our ruling in no way suggests what the deGislon of the
designee ought to have been if all of the relevant information had
_./
been shown to be before her Counsel for the Union acknowledged
that there lS a broad discretion in the designee and nothing in
this decision lS to be interpreted as suggesting otherwise
However, discretion/is not exercised in the abstract. The Employer
must be prepared, when its representative is questioned, to show
that the designee had before him or her all of the relevant
evidence that might reasonably bear on the making of the decision
and that the evidence before the designee was not irrelevant to the
decision, or if it was irrelevant, that it did not affect the
decision in any significant way
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7 Because of our decision on the preliminary objection, it 1S
unnecessary to deal with any of the other objections to Exhibit 23
raised by counsel for the Union.
8 In dealing with the grievance on its merits; that is deciding
the issue of whether the Grievor was discharged without just cause,
we wish to state at the outset that the Employer cannot now ralse
an issue as to whether the Grievor suffered a handicap within the
meaning of the Code. Although much time was taken up in dealing
with the question of whether the Grievor suffered a disability
amou~ting to a handicap under the Code, being the physical and/or
emotional inability to work nights, the evidence was clear that the
representatives of the Employer, notwithstandlng their
I
understandable and considerable misgivings about the quality of the
medical evidence, chose to accept it as establishing that the
Grievor could not work nights and that if she was compelled to do
so would suffer significant physical and/or emotional difficulties
It is for this reason that we do not have to comment. on the quality
of the medical evidence, as was the case in Pitirri, where such an
\
issue had to be resolved by the Board.
9 Because the Employer has, by its actions precluded itself from
now argulng that the Grievor did not have a handicap withln the
meaning of s. 10(1) of the Human Ri9hts Code, and because it
acknowledges that it is bound by t~he provisions of the Code, we
find that it was under an obligation to accommodate the Grievor's
i
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.22.
hand leap ln accordance with the requirements of the Code as above
stated.
'\
10 The Grievor's complaint about the purported accommodation lS
I
that as it was in the nature of an assignment to another position
(Records Search Clerk) it dld not amount to a reasonable
accommodation to the point of undue hardship The Unlon and the
Grievor regarded accommodation being J to the position
as related
that she initially held of Data Entry Operator (RPT)
11. What the Union argued was that the Employer could have, and
should have, accommodated the Grievor by having her transferred ~o
an RPT Data Entry Operator position on the day shift from 8 00 a m
to 12 00 noon five days a week, in accordance with her previous
schedule in that position. It was the position of the Union that
this would have been possible without undue hardship to the
Empl,9yer
'-
12. We de> not understand the Unlon's argument to be that the
Grievor was entitled in all circumstances to work such a shift
Its posi ti-on was that if there was no undue hardship to the
Employer in accommodating her as she wished, then that lS what it
was required to do.
13 Nor did we take it that the Union was arguing that
) accommodation would all circumstances the Employer
ln requlre to
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l
only schedule the Grievor to work mornings; although she complained
in her evidence that being scheduled to work afternoons as well to
4 p m would interfere with her attending university classes. Her
handicap, as acknowledged by the Employer, was related to her
inability to work nights The Employer's obligation to
accommodate, leaving aSlde for the mqment a discussion of the job
to which she should have been assigned, only required that the
assignment be to the day shift.
14 If it was demonstrated that the Employer would lose efficiency
by assigning the Grievor to other than a full day shift, that would
amount to undue hardship within the meanlng of s 17(2) of the
Code If accommodating the Grievor by assigning her to either a
five-day-a-week morning shift or a three-day-a-week all day shift
imposed no greater burden on the Employer, then assuming that the
accommodatlon would not amount to undue hardship, an assignment to
an all day shift would be suspect in the circumstances
15. The thrust of the Union's argument was that RPT Data Entry
Operator work was available on the day shift, even after the
Grievor's RPT Data Entry Operator position on the day shift, five
days a week from 8 a.m. to 12 noon was done away with, and that,
there was a need for that work on the day shift as was demonstrated
by its being performed by the agency personnel furnished by
\
Goodwill.
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16. The Union's argument proceeded on the basls that the work was
available and that there was insufflclent evidence to show that
asslgning it to the Grievor as suggested by the Union would amount
to undue hardship for the Employer. Accordingly, we should order
J
the Employer to assign the Grievor to an RPT Data Entry Operator
position on the day shift five days a week from Monday to Friday
the hours being from 8 a m. to 12 noon.
17. At no time during the hearing was evidence presented which
made clear the exact nature of the arrangement whereby agency
personnel were furnlshed, although it was acknowledged that they
were not members of the public service or subject to the provisions
of the collective agreement.
J
18. Nor was it suggested by the Union that the Employer was ln
violation of the cqilective agreement in utilizing agency personnel
to perform Data Entry Operator work.
19 The fact that there may be a backlog of work for Data Entry
Operators does not, in the circumstances of this case, oblige the
Employer to post to fill positions to do the work. We dld not
understand counsel for the Union to suggest that merely because
there was work to be done the Employer had to appoint persons
within or without the bargaining unit to such positions.
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20 Even if there were no agehcy personnel performing Data Entry
\
Operator work, the Union could not compel the Emplo:yer~to create a
I
position or positions to perform that work
21. From the evidence, we can only conclude that the Union has
been aware, for some time, of the Employer's use of agency
personnel to perform Data Entry Operator work whatever concerns
the Union may now have about the use of agency personnel are not
before us for decision.
22. In effect, what the Union now requests by way of accommodation
is that a position as Data Entry Operator that did not exist at the
time of the grievance be opened up and that this can be done by
taking the Data Entry Operator work presently being carried out by
an agency person and giving part of it to the Grievor
23 There lS a difference between a situation where there lS a
vacant position as a Data Entry Operator to which the Grievor can
"
be assigned by way of accommodation as required under art. A of the
,-
collective agreement and compelling the Employer to make such a
position available' Although the distinction may be a flne one ln
practical terms, the positions occupied by agency personnel as Data
Entry Operators cannot, at least on the evidence before us, be
regarded as positions available to members of the bargaining unit
such as the Grievor. The exact legal relationship between the
Employer and the agency and between the Employer and agency
I
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.9..6.
personnel was not explored and we have insufficient evidence to
make any flnding ln that regard However, on the basis of the
evidence before us, we cannot regard the Employer as having
available a day shift Data Entry Operator position Furthermore,
under s 18 (1) of CECBA this is a matter over which we have no
jurisdiction. e
\
24 There was evidence from Ms. ~irsh that matters of efficlency
and business efficacy dictated that the functions of the RPT Data
Entry Operator position to which the Grievor was assigned would be
carried out at night. The Grievor's hand leap necessitated
reasonable accommodation to the point of undue hardship If the
facts disclosed that the Employer could, without undue hardship,
have the Grievor perform data entry work on a half day basis in the
morning five days a week Monday to FridaYr that would appear to us
to be reasonable accommodation as required under the Act.
25. However, the evidence given on behalf of the Employer was that
all of the existing workstations were occupied during the day.
26. The e~idence of Ms. Kirsh was that it would be inefficlent to
assign the Grievor tb the day shift as an RPT Data Entry Operator
on any basis because this would mean that an agency personne~ would
have to be removed which would leave a workstation unoccupied for
part of the day shift, and it was also stated that certaln
l~
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) 97
inefficiencies relating to supervision would arise if the Grievor
was moved to the day shift to work along with agency personnel.
~
27 In all of the circumstances, we are satisfied that there was
no position available for the Grievorto be assigned as an RPT Data
Entry Operator on the day shift as a form of reasonable
accomoda't ion of her handicap In the circustances, we are also
satlsfied that'there being no such posltion available', the offer by
/
the Employer to the Grievor of the Records Search Clerk position
amounted to reasonable accomodation of her handicap within the
meaning of s 17(2) of the Code. Although it lS unnecessary for
the purpose of the decision, we f1nd that the Grievor was not so
much concerned about being assigned to what she regardeq as a lower
status position as she was about having to work afternoons, which
requirement then conflicted with her attendance at Ryerson
28. After a review of the evidence and argumentwE~ must conclude
that the Grievor had not been properly deemed to have abandoned her
position under s 20 of the 'Public Service Act Accordingly, she
{
remains a public servant until some proper action lS taken to
~
change her status.
\
29. Because we have concluded that the accomodation offered to her
was sufficient to satisfy the Employer's obligations, she lS not
entitled to any monetary relief The Grievor took a chance that
she could convince the Board to find that she was entitled to the
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accomodation she sought, ,but was not successful in dOlng so, and
therefore is not entitled to any further compensation for the time
that she has been off work.
30 The Grievor could have reported to the Records Search Clerk
job andstll1 malntained her position that her being assigned to lt
\
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did not amount to a proper accomodation of her handicap We cannot
do anything about any loss of income suffered by her as a result of
the choice she made.
I
31 ~In the circumstances, we are satified that the Grlevor never
intended to abandon her position, although she might have been
r-....,. deemed to have done so if the designee's rights under s. 20 of the
~
Public Service Act had been properly exercised. Until the Employer
did something to effectively terminate the Grievor' s employment she
remained in a state of 11mbo Our reyiew of the evidence indicates
that if there had been better communication between the parties
this matter might not been brought to us for a decision. In order
that this matter can now be resolved, the Gri~vor will have two.
.
weeks from the date of this decision to inform the Employer whether
she is now agreeable to reporting to work as a Records Search Clerk
on the day shift on the terms originally offered to her, subject to
such changes in the terms and conditions of employment as now
affect the position. If she responds that she wishes to report for
work in the position, the Employer shall schedule her to work and
furnish her with notifaction to that effect with particlars of time
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and place; her start-date to be no later than two weeks after she
notifies the Employer in the manner above set;. out, unless the
parties mutually agree otherwise.
32 We would only add that we agree with counsel for the Union
that it lS not possible to contract out of the provisions of the
Code. However, because of our conclusion that the Grievor was given
the accomodation she was entitled to, it is unnecessary to decide
whether the acceptance by the Union of the Employer's offer of
accomodation amounts to a prohibited contracting out. In the
circumstances of this case, the involvement of the Union ln an
attempt to arrive at a suitable accomodation was proper and to be
expected. "-- \ "
"'"
Dated at Toronto this 10day of April, 1995.
77'L.:? ~ /~
M Gorsky - Vice Chairperson
"I Dissent" (dissent to follow)
M. Milich - Member
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Dissent
In the Matter of an Arbitration
Between
OPSEU (Tran)
.
and
The Ministry of Consumer and Commercial Relations
GSB # 711193
Upon reviewing the decision in the- above matter, 1 find that I cannot join in the award.
Where I part company with my colleagues is the test which they applied to the facts in
the case.
d' I agree with my colleagues that once the employer has accepted that an handicap
" under the Cqde existed and acted upon that premise it cannot now raise the issue of
the handicap. While it may well be commendable for the employer to extend the
benefits associated with such a recognition,in cases where there is considerable
concern regarding the medical basis for the cfaim, caution in the acceptance of a claim
of handicap will ensure that all parties are property served. I also agree that within the
context of this case the employer had taken reasonable steps to accommodate the
grievor
Having so decided on the accommodation issue, I submit that the test established in
Szabo, 292/91 and Tam inS was the only test that the employer was required to
meet. Both these cases deal specifically with the Board's jurisdiction to review the
actions taken by the employer under s. 20 of the Public Service Act.
The test as ouUined in these cases (pages 12-13 ,in Szabo and pages 7-10 in Tam)
has three elements to it.
a) The employee must have been absent for at least two weeks.
b) The absence must be without official leave. In this respect, the
jurisprudence defines "official leave" as leave which was authorized,
would have or should have been authorized; in other words that the
leave was not unreasonably, discriminatorily or arbitrarily withheld.
c) The employee's intentions to return are not a consideration under the
section.
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In the latter respect, the letter from Ms Tran's lawyer that she had no intention of
leaving the job and that they wished to disuss the matter has no bearing on the ultimate
disposition of the case under s. 20.
These tests are imbedded in the legislation which reads:
itA public servant who is absent from duty without offtdalleave for a period of two
weeks or such longer period as is prescribe in the regulations may by an instrument in
writing be declared by his deputy minister to have abandoned his position, and
thereupon his position becomes vacant and he ceases to be a public servant. It
It requires no other test than is stated. There is no implication that the test to be met is
or should be anymore than the three elements already stated. To Imply that there is an
additional test is expanding the very clear and simple requirements under the section.
While the employer's evidence lacked specificity, we did have evidence that the
designee had been kept Informed of the developments in the case and was aware of
the letter from Ms Tran's lawyer We also have clear evidence from the grievor that the
true stumbling block to her working the three day schedule was her concem that the
schedule would interfer,e With the class schedule for course of studies that she was
pursuing. This is simply not a circumstance where the employer has any obligation to
extend a leave of absence of any type.
~ ';
Alternatively, Sandham, 802192 which is the case which comes closest to supporting
the boarcfs scope of review regarding the discretiOn excercised was determined on the
basis that the decision maker in the grievance did not have authority to deny or grant
leave under Art. 55(1) of the Collective Agreement The issue in the case was not
pursuant to s. 20 of the Public Service Act. Although it does require the employer to
lead evidence of how a decision is made, Sandham does not go $0 far as to relieve the
grievor of the burden of proof The case provides a balance without destroying the
basic rules with respect to the burden of proof In the final result, the Union must still
show that the decision was made in an arbitrary, discriminatory manner or in bad faith.
They have not done so in this case. We have sufficient evidence before us to
determine whether the decision was tainted with arbitrariness, discrimination or bad
faith.
Once the accommodation issues were determined, it became evident that the only
impediment to the grievor's retum to work was the griever's concem that the three day
schedule would conflict with the dasses she was taking and therefore, refused to work
the schedule. In my opinion, the employer aded properly in declaring that she had --
abandoned her position.
I would have dismissed the grievance.
djJ~td