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HomeMy WebLinkAbout1995-0131.Latimer.99-12-14 Decision o NTARW EMPU) YES DE LA COURONNE CROW"! EMPLOYEES DE L "()NTARW GRIEVANCE COMMISSION DE -- SETTLEMENT REGLEMENT BOARD DES GRIEFS 180 DUNDAS STREET WEST SUITE 600 TORONTO ON M5G 128 TELEPHONE/TELEPHONE, (416) 326-1388 180 RUE DUNDAS OUEST BUREAU 600 TORONTO (ON) M5G 128 FACSIMILE/TELECOPIE. (416) 326-1396 GSB # 0131/95 0132/95 2132/95 OPSEU # 95A500 95A501 96C063 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN Ontano PublIc ServIce Employees Umon (Latlmer) Gnevor - and - The Crown III Right of Ontano (Mirusm of the SolIcItor General and CorrectIOnal ServIces) Employer BEFORE Susan D Kaufman Vice ChaIr FOR THE Nelson Roland GRIEVOR Bamster & SOlICItor FOR THE AJaITIU BoardI EMPLOYER Staff RelatIOns Officer Mirusm of the SOlICItor General and Correctlonal ServIces HEARING December 8 1999 FOURTH INTERIM RULING The proceedings before me commenced on July 29 1997 On December 8 1999 Mr Roland requested that a cease and desIst order be Issued agaInst the employer on account of the employer's allegedly discnmmatory and harassmg behavIOur toward the gnevor wmch has allegedly occurred dunng these proceedmgs. Mr BoardI argued agaInst the order It was not m dIspute that the gnevor has been absent from work on sIck leave benefits SInce May 9 1999 and that her benefits have run out or are about to run out. At the end of theIr arguments respectIng the proposed cease and desIst order I mdicated to them that what was at Issue was the manner In wmch the partIes should conduct themselves until the final determmaTIon of these proceedings, m order to avoId further gnevances ansmg before that TIme. I suggested that guIdelInes, rather than a decIsIon determIrung the fine pOInts of theIr arguments, and possibly an order would be sufficIent and more construCTIve m all the CIrcumstances of thIS case They agreed, and requested me to set out my remarks and suggested guIdelInes m wnTIng for the partIes as to the maImer m wmch they should conduct themselves until the final determmaTIon of these proceedmgs, wmch I stated to them at that TIme The followmg IS my recall of my statements, wmch may be amplIfied In some respects, and may reflect omISSIons, as I dId not take notes dunng our diSCUSSIOn. The employer IS engaged m the management of a Jail, and IS under an oblIgaTIon to do so as economIcally and as efficIently as possible, and the gnevor's employment takes place m that context. The employer IS oblIged to maIntam a certaIn complement of staff WithIn the mSTItuTIon for each smft, wmch vanes from smft to smft, to ensure the safety and secunty of the publIc, the Inmates and the staff. The employer IS also requested to aVOId, wherever possible, usmg staff who would mcur overtlme hours m order to maIntaIn the complement, m keepmg With the oblIgaTIon to manage the Jail as economIcally and as efficIently as possible. NotwIthstanding that the gnevor IS on "accommodaTIon" she must be mmdful of these oblIgaTIons. The gnevor has been on a workplace accommodatIOn program for a substanTIal penod of TIme for a medical reason wmch IS not known to the employer The employer agrees that It IS not entItled to know the medical reason, and that the gnevor has the nght that the reason remam 2 pnvate and confidentlal. From tlme to tlme, while at work, the gnevor has stated that she has become ill and unable to contlnue to work and has requested that the employer relIeve her from her post, and has stated that she must leave the workplace due to illness. Mutual accusatIOns of mIsconduct have resulted. Some of them are before me In tms proceedmg and will be dealt WIth In due course, after the eVIdence and argument m the proceedmg are completed. The employer while wIsmng to respect the gnevor's nght to pnvacy acknowledges that some members of management are dubIous as to the realIty and/or the extent of the medIcal conditlon wmch has resulted m the gnevor requestlng to be relIeved from her post to go home or to a clIruc The gnevor VIews the employer's conduct, emanatmg from ItS doubt, as harassment and disCTImmatlon. The employer doubts that the request for relIef IS based purely or at all on health reasons, and at tImes doubts the actual neceSSIty of ItS admmIstratIve efforts to relIeve her and replace her at a post, and VIews the requests she makes as an unwarranted demand on the mstltutlon. I make no findings at thIs pomt as to the accuracy or valIdity of eIther pomt of VIew As well, the gnevor has not been permItted to take a hostage or cnsIs negotIator refresher trammg course while she has been workmg under a workplace "accommodatlon" The employer has to thIS pomt determmed, on the basIs of the recommendatIOns of her physIcIan, wmch were requested of her physIcIan wIth respect to day-to-day workplace accommodatlon and not WIth respect to traIrung courses whIch take place outsIde of and/or In addItlon to ordinary workmg hours and at another geographIc locatIOn, that her "accommodatIOn" prohibIted the employer from sendmg her on the course. The gnevor VIews the employer's conduct m so decIdmg as conduct whIch IS m bad faIth and motIvated by an mtentlon to disCTImmate agamst her and/or harass her AgaIn, I make no findings at thIs pomt as to the accuracy or valIdity of eIther pomt of VIew Both partIes are, understandably polanzed on these matters and there IS lIttle common ground. I recommended that the partIes adhere to the follOWing guIdelInes until the final dIsposItlon of these proceedmgs. 3 1 Where the gnevor requests the employer to relIeve her from her post for medical reasons, and states that she IS unable to contmue at her post for the balance of her smft, the employer will take all possible steps to relIeve her from her post as expeditlously as possible, while maIntaIrung the secunty needs of the mstltutlon. To the end of relIevmg the gnevor as expeditlously as possible, If any nurse or doctor on staff WithIn the mstltutlon states to management that the gnevor should be permItted to go home or to a clIruc at that tlme, management will accept the VIew of that nurse or doctor and will not reqUIre the gnevor to remaIn m the mstltutlon and will not ask the nurse or doctor to agree to assess the gnevor at a later tlme m the smft, and will not seek a second opmIOn from another medical staff person. The employer will not second-guess the opIruon of ItS medIcal staff. Tms guIdelIne does not reqUIre the employer to seek the opIruon of a staff nurse or doctor on each occaSIOn m wmch she requests relIef; the employer retaIns the discretlon to relIeve the gnevor Without reqUITIng her to be assessed by a nurse or doctor The gnevor should also bear m mmd that when she IS workmg a shIft With a low complement, or when there are emergencIes and urgenCIes WithIn the mstltutlon, It may take longer than IS comfortable for her for a relIef to be obtamed for her 2 When the gnevor requests to partlcIpate m traIrung prograITI(s) wmch IS or are held outSIde of the normal workmg hours of her workplace "accommodatlon" the employer IS entltled to and should request the gnevor m wntlng, to provIde the wntten opmIOn of her physIcIan as to whether her attendance at the program would fall WItmn or exceed the medIcal restnctlons/workplace "accommodatlon" she IS then under and as to whether she can be expected at the tlme that the opIruon IS beIng requested to perform the dutles toward whIch the traIrung prograITI IS directed. In ItS letter the employer will make Itself clear that It IS not requestlng the physIcIan to disclose the nature, naITIe or Identlty of the gnevor's medical condItlon m ms response With ItS letter to the gnevor the employer should provIde as much wntten detail as possible about the program, the traIrung and ItS obJecnves, and mformatlon as to the date, tlme and place of the course, and the hours mvolved, as well as the 4 gnevor's "accommodated" work schedule, to enable the physIcIan to state hIS opIruon based on the fullest possible mformatlon. 3 The gnevor should bear m mmd that the employer IS oblIged, m VIew of the "accommodatIOn" to apply cautIOn regardIng the work and other work-related actlvItles to wmch the gnevor may be assIgned. She should bear m mmd that such a request IS part of the oblIgatlon of management to make ItS decISIons based on the fullest possible mformatlon as to the specIfic actlvIty bemg consIdered, l.e the hostage or CTISIS negotlator refresher traIrung course, wmch m my VIew does not clearly fall WithIn the scope of the current workplace "accommodatlon" She should also bear In mmd that such a request would be made m her and all the employees' mterests as well as the employer's own mterests, and that such a request IS made for those reasons, and IS not made as an attempt to vIolate her pnvacy or harass or disCTImmate agaInst her 4 At tms pOInt, the employer IS aware that the gnevor wIshes to attend the cnSIS or hostage negotIator refresher traIrung course and should, as soon as the gnevor IS able to return to work, request the gnevor m wntlng, to proVIde the wntten opIruon of her phYSICIan as described In paragraph 2 herem. I encourage management and the gnevor to consIder the penod from the present to the final dIsposItlon of the gnevances now before me as a "tlme out" penod of theIr mutual SUspIcIons. I encourage counsel and the parnes to make themselves as available as possible for an expeditlous conclUSIOn of the eVIdence. I will, of course, remaIn seIsed regardmg the Implementatlon of these guIdelInes. Dated at Toronto tms 14th day of December 1999 Susan D Kaufman, Vice-ChaIr 5