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HomeMy WebLinkAbout1996-1726YOUNG96_11_26 Of<flARIO EMPLOYES DE LA COURONNE CROWN EMPLOYEES DE L'Of<flARIO GRIEVANCE COMMISSION DE 1111 SETTLEMENT REGLEMENT BOARD DES GRIEFS 180 DUNDAS STREET WEST, SUITE 2100, TORONTO ON M5G 1Z8 TELEPHONEITELEPHONE (416) 326-1388 180, RUE DUNDAS OUEST, BUREAU 2100, TORONTO (ON) M5G 1Z8 FACSIMILE/TELECOPIE (416) 326-1396 GSB # 1726/96 OPSEU # 96G248 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN OPSEU (Young) Grievor - and - The Crown in Right of Ontario (Ministry of Health) Employer BEFORE W Kaplan Vice-Chairperson FOR THE D Wright GRIEVOR Counsel Ryder, Wright, Blair & Doyle Barristers & Solicitors FOR THE M Quick EMPLOYER Counsel Legal Services Branch Ministry of Health HEARING July 16, 1996 - 2 Introduction This case concerns a May 10, 1996 gnevance which, at the request of the parties, proceeded directly to expedited arbitration bypassing the usual steps In the gnevance procedure A statement of agreed facts was prepared and introduced into evidence Moreover, the parties made further submissions on evidence and the law at the hearing The basic facts, which are summarized below, are not in dispute It must be noted at the outset, the grievor suffers from a severe allergy to shellfish Exposure to shellfish IS potentially life threatening Accordingly, and as part of an accommodation agreement reached on June 17,1995, the employer agreed to post Allergy Alert signs in designated areas of the Hospital, including on Ward 12, the ward to which the grievor was assigned The Facts On February 26, 1996, OPSEU commenced a legal strike which lasted approximately five weeks The grievor was not designated as an essential worker, and chose not to report for work during the duration of the stnke In the grievor's absence, possibly as a result of quarantine signs being posted on Ward 12 following an influenza outbreak, one or more Allergy Alert Signs were removed When the strike was over, the grievor returned to work On Saturday, April 13, 1996, the grievor became aware that the Allergy Alert sIgn, which was supposed to be posted at the main entrance to Ward 12, was no longer In place The gnevor InqUired and was told that this sign had been removed to ensure that the quarantine sign was visible The grlevor received some Information indicating that a specific doctor had dIrected the removal, and 3 the fact that a doctor had done this was particularly upsetting to the grlevor It should be noted that, upon investigation, the individual in questIon denied any involvement in this activity In any event, the grievor also discovered, on Apn113, 1996, that other Allergy Alert signs were missing from the nursing office, the visiting room and the patient dining room Moreover, she learned that allergy education and Information packages were missing Exacerbating the situation from the grievor's point of view, a co-worker told her on April 13, 1996 that she was going to obtain some take-out Chinese food, and intended to consume it on the ward Chinese food presents serious risks of exposure to the grievor The co-worker apparently told the grievor that it was her view, and those of co-workers, that since the Allergy Alert signs had been taken down, the restnctions on shellfish no longer applied This evidence was not proven but it goes to the griever's state of mind Needless to say, all of these developments were extremely upsetting to the grievor who immediately contacted a facilitator who had, for the past year, been working with the parties in the design and Implementation of an accommodation protocol The facIlitator suggested to the grievor that she contact the Area Co-ordinator and advise her of the situation The gnevor Immediately did so, contacting Ms L Cole Ms Cole Inspected the relevant areas, and ascertained that the signs were not In place Ultimately, the grlevor had copies of a temporary sign made, and she posted those copies In the appropnate locations Ms Cole advised the gnevor that she would be bringing these events to the attention of Ms Judy Frawley, the NurSing Director The gnevor then completed her shift. 4 That night, the grievor again contacted the facilitator who informed her that she would arrange a meeting with Ms Frawley to discuss these events In fact, a meeting was already being planned to discuss the overall accommodation protocol which was still in development, and when the facilitator contacted Ms Frawley she thought that this meeting, which was scheduled for April 30, 1996, was In furtherance of this objective In the meantime, the grievor determined that these events constituted a threat to her health and safety, and so she booked off sick for her next scheduled shift, and did not report for her scheduled shifts on April 17, 18, 29, 30, May 1, 2, & 3,1996 When Ms Frawley came into work on Monday, April 15, 1996, she took immediate remedial steps to ensure that the proper signs were reposted, that the educational packages were In place, and that staff were informed of the Importance of maintaining the pre-strike measures directed at accommodating the grievor On April 25, 1996, the grievor sent Ms Frawley a fax The gnevor asserted in this fax that management had failed to abide by the Minutes of Settlement. As the result of that failure, the gnevor claimed that her health and safety had been unnecessarily put into penl, and she requested that her days away from work, past and prospective, be designated as leave of absence with pay On Apnl 25, 1996, union counsel wrote employer counsel making a similar request Ms Frawley did not receive the letter as soon as It arrived as she was away from work on a management retreat until Apnl 29th On Apnl 30th, the pre-arranged meeting with the gnevor, the union, and management took place Ms Frawley emphasized at the start of thiS meeting that it was her 5 view that the primary Intent of the meeting was finalization of the accommodation protocol Needless to say, however, the grlevor raised her concerns about the missing signs WhiCh, by that point, had led her to stay away from work for a number of designated shifts Ms Frawley advised the grievor that as soon as she became aware of the situation on April 15, 1996, she took immediate steps to ensure that the signs and educational materials were restored to their proper locations In addition, she informed the grievor that she spent some time talking to the staff on the ward For her part, the grievor raised a number of still outstanding concerns including her desire that permanent signs be affixed, that the ward supervisor speak to the staff at the next day's morning report, that a written communication be prepared for the Communication book, and that Ms Frawley speak to the doctor who had allegedly removed the Allergy Alert signs and inquire if he removed the signs and, if so, obtain his assurance that thiS act would not be repeated The grievor also sought confirmation from thiS Individual that he was supportive of the grievor's need for accommodation Ms Frawley agreed to these requests and notified the grievor by telephone on May 1, 1996 that each of these Issues had been addressed The grlevor was further Informed that Ms Frawley expected the grlevor, who she now realized was not "sick" when she booked off sick, to report for duty the following day The grlevor demurred, unhappy with the results of Ms Frawley's investigation of the doctor and other matters The grlevor did not attend on her next scheduled shift. Then, on May 3, 1996, the grlevor was by letter delivered to her home, directed to report for her next scheduled Shift, May 6, 1996 She was Informed that If she failed to report for work 6 on that date disciplinary action, including dismissal, might result The grlevor reported as directed On May 6, prior to the grrevor returning to work, the local union president toured the ward While he found the signs had been posted, missing from the ward were the various educational materials According to the employer, these materials were temporarily removed so that one page could be replaced The materials are kept in binders making replacement of a page a relatively Simple task to perform, not necessitating, in the grievor's view, nor that of the union, the actual removal of these binders from the ward even for a brief period of time The grievor then returned to work, and while this evidence was not tested, it was her position that the employer had failed, as Ms Frawley had agreed, to put a communication in the Communication Book Moreover, the grievor noted that a number of employees had not opened the communication which had been prepared about this matter and left in their mailboxes On May 10, 1996, the instant grievance was filed and, as noted at the outset, it proceeded, on agreement of the parties, directly to a hearing before the Board While a number of specific things are sought by way of relief, it is fair to say that the grlevor mainly seeks a declaration that her accommodation and health and safety nghts have been violated, and compensation, at full pay, for all of her missed shifts She also seeks removal from her file of the employer's May 3, 1996 letter referred to above Union Argument In the union's submiSSion, the events of Apn113, 1996 and following clearly created a reasonable apprehension of potential harm in the gnevor's 7 mind, and she quite properly, given the concerns that had ansen, removed herself from the workplace until those concerns were addressed Counsel noted that the gnevor believed that a doctor had directed the removal of the Allergy Alert signs, and pointed out that it was only happenstance that precluded Chinese food from being brought on the ward and potentially jeopardizing the grievor's life In these circumstances it was qUite reasonable, the union argued, for the grievor to remain off work until her safety was assured In that regard, counsel noted that it was not until the end of April that anyone in management informed the gnevor that her concerns had been addressed It would have been foolhardy, counsel argued, for the grievor to have returned to work until she was informed that the preexisting accommodation arrangements had been put back into place It was true enough, union counsel agreed, that the grievor was informed on May 1 st that certain steps had been taken And it was also true that the grievor did not report for work after receiving that information However, counsel pointed out, the gnevor still had no idea who had taken the signs down and why, and until she was satisfied With the results of that investigation, she had every reason to stay away from work What was particularly noteworthy, counsel observed, that even when the grievor was told that all the steps had been taken, thiS was not true as the information packages had been removed It Simply did not make sense, counsel suggested, to remove these binders to replace a page when that page could be easily replaced on site The fact of the matter was that the employer was not taking even the minimal steps necessary to accommodate the gnevor, and protect her health and safety, and It was the employer who should, through restonng the gnevor's lost 8 wages, assume the financial and other consequences of its inaction Counsel concluded by asking that the grievance be allowed, a declaration issue, that the grievor be made whole and that the May 3, 1996 letter be removed from the grievor's file Employer Argument In the employer's submission, this grievance should be dismissed Management took the position that the gnevor was never sick, and should ! not, therefore, have booked off sick. Counsel observed that the medical records introduced to support the assertIon of illness were all dated long after the fact Counsel did not deny that the Allergy Alert signs had been taken down The I I employer, however, did not know who took them down or why, and could only I I point to the confusion arising out of operating during the strike, as well as the quarantine that was imposed on the grievor's ward What was Important, in the employer's View, was how it reacted once the problem was brought to ItS attention Counsel noted that the signs were put back up, and the next day Ms Frawley took immediate steps to ensure that all of the preexisting accommodation measures were back In place The employer acted qUickly and reasonably ThiS, employer counsel argued, could not be said about the gnevor who responded to these events by calling In sick when she was not sick, and who then asserted a claim for wages when she had not worked The employer did not dispute the fact that neither Ms Frawley, nor anyone else, called the gnevor to report on the actions taken following receipt of 9 her complaint However, there was a reason for that Management thought that the grievor was, as she claimed, sick Had management known otherwise it might have communicated with her, and counsel pointed out that the grievor had made It quite clear In the past that she did not appreciate being contacted at home after booking off sick It was only when the grievor Informed management of the real reason for her not attending at work, which Ms Frawley did not receive until April 29th, that the dialogue about the reinstatement of the accommodation measures begin, and here too the grievor persisted in remaining away from work when, arguably, all of her concerns had been reasonably addressed There was no sickness In this case, counsel argued, there was a work refusal, and there was therefore no basis for upholding the grievance which counsel urged be dismissed Union Reply In reply, counsel noted that while the grievor booked off sick, this case was not about sick leave It was about an employer with a duty to accommodate failing to abide by its obligations It was also about management's failure to respond In some formal way to the grievor's real concerns about her health and safety It made sense for the grievor to stay from work while these concerns were being addressed and, once again, counsel urged that the grievance be upheld and the grievor made whole Decision Having carefully conSidered the evidence and arguments of the parties, I am of the view that the grievance should be upheld, but only In part. 1 0 In my View, the grievor should not have called m sick and until she returned to work management was qUite justified in withholdmg her pay She was not sick, and there is no basIs for her to have received sick leave Union counsel, as noted above, took the position that this case was not really about sick leave, it was about the understandable response of an employee who genuinely feared for her health and safety Had the grievor filed a health and safety complaint, or had she put management on notice that she needed her health and safety and accommodation concerns to be addressed in a timely way, the outcome of this grievance could well have been different. Instead, the grievor called in sick when she was not In the aftermath of calling in sick, the gnevor brought the real reason for her absence to management's attention, and I accept the employer's evidence that it only became aware of the real reason the day before the meeting already scheduled for Apnl 30th When management became aware of the grievor's on-going concerns, it addressed them This is not to say that it had done nothing after learning that the signs were taken down, Ms Frawley acted and acted quickly It continued to act after meetmg with the grievor, who continued, after being advised that her concerns had been addressed, to remain off work, which she did until receiving the May 3, 1996 letter In all of these circumstances, there is simply no basIs to uphold the grievance in full What does concern me, however, IS management's response when the grievor brought her concerns to ItS attention on April 13, 1996 While accommodation IS a two-way street, It IS Ms Cole or some other member of management who should have, on behalf of the institution, 1 1 assumed immediate responsibility for getting temporary Allergy Alert signs up, and getting them up quickly Moreover, I think it would have been appropnate for the employer to have conducted an immediate investigation and then to have relayed the results of that investigation to the gnevor The accommodations in this case are not run of the mill for the griever could die if she comes Into contact with shellfish Management did respond on April 15th, but it should have formally notified the grievor of its response, and done so in a timely way given the nature of the accommodation and the consequences of exposure to the grievor Accordingly, I find that the grievor should not have called in sick when she was not sick. I am aware, of course, that both the grievor and union counsel subsequently advised the employer that it was the failure to accommodate and the risk to health and safety which was preventing the grievor from attending at work, but this information was provided some time after the grlevor initially indicated that her absences were due to illness, and the gnevor's communication was only received by Ms Frawley on the 29th In my View, the grievor should have returned to work immediately upon being advised that her concerns had been addressed, which she was on May 1 st. However, I also find that the employer should have, in the aftermath of the grievor discovering that the signs had been taken down, assumed responsibility for getting temporary signs in place, and it should have then investigated and expeditiously provided the gnevor with the results of ItS Investigation, and Informed her of the remedial steps it was taking It failed to do so, and this obviously had a detnmental effect on the gnevor and her state of mind, explaining and mitigating, to some extent, her actions outlined In this award In these circumstances, I do not consider the 1 2 May 3, 1996 letter to be just, and I direct that It be removed from the grlevor's file It is in this limited sense that the gnevance IS upheld In part. I remain seized with respect to the implementatIon of this award DATED at Toronto this 26th day of November, 1996. l/'/ /--- Wilham Kaplan Vice-Chairperson