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HomeMy WebLinkAbout2002-0944.Kerna.03-03-28 Decision Crown Employees Commission de ~~ Grievance Settlement reglement des griefs Board des employes de la Couronne ~-,... Suite 600 Bureau 600 Ontario 180 Dundas Sl. West 180 rue Dundas Ouest Toronto Ontario M5G 1Z8 Toronto (Ontario) M5G 1Z8 Tel. (416) 326-1388 Tel. (416) 326-1388 Fax (416) 326-1396 Telec. (416) 326-1396 GSB#0944/02 UNION#02B576 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN Ontano Public Service Employees Umon (Kern a) Grievor - and - The Crown m Right of Ontano (Ontano Human Rights CommissiOn) Employer BEFORE Felicity Bnggs Vice-Chair FOR THE UNION Gavm Leeb Barnster and SOliCitor FOR THE EMPLOYER Meredith Brown Counsel Management Board Secretanat HEARING March 14 2003 2 DECISION The gnevor, Glona Kema, has been an employee of the Human RIghts CommIssIOn for 23 years She began as a Clerk 2 and receIved vanous promotIOns over the years Her most recent posItIOn IS InvestIgatIOns Officer In early June of 2002, she filed two gnevances One alleged that the Employer denIed her request for accommodatIOn m her home posItIOn The second asserts that she has been dIscnmmated agamst as the result of her pnor mvolvement m certam UnIon matters At our first day of heanng the partIes agreed to argue a prehmmary matter It was the UnIon's posItIOn that the Employer should proceed first m tlus matter and requests the Board to so order The Employer strongly dIsagreed wIth tlus motIon and urged the Board to deny the UnIon's request F or the purposes of tlus prelunmary matter the relevant facts were not contested. The gnevor had been expenencmg medIcal problems and m January of 2002 she requested and was accommodated by the Employer retroactIve to May of 2001 It IS Important to note that m the recent past, notwIthstandmg UnIon obJectIOns, the Employer has mstItuted a performance expectatIOn plan for InvestIgatIOn Officers It IS now expected that InvestIgatIOn Officers wIll close between 36 to 40 files per year The accommodatIOn provIded that the gnevor would be reqUIred to close forty per cent less files than other InvestIgatIOn Officers, that IS 21 to 24 files per year In a letter dated May 23, 2002, the gnevor was officially notIfied that her arrangement would end as of June 3, 2002 Ms Kema was told that the CommIssIOn had "decIded to accommodate (you) m the posItIOn of Intake Officer m the InqUIry and Intake Office" It IS tlus change of posItIOn that the UnIon asserts IS a vIOlatIOn of vanous prOVISIOns of the collectIve agreement as well as the Ontarzo Human Rlghts Code WhIle there IS a 3 salary dIfferentIal between Intake Officer and InvestIgatIOns Officer, the Employer dId not alter the gnevor's compensatIOn She contmues to be paid at the rate of an InvestIgatIOns Officer However, the UnIon asserted that the change m posItIOn caused the gnevor angUIsh, frustratIOn and embarrassment m the workplace to the pomt where she consIdered herself penahzed by the assIgnment Mr Leeb, for the UnIon, explamed that the central Issue at hand m thIS matter IS that the gnevor has been dIscnmmated agamst when the Employer elected to remove her from her home posItIOn of InvestIgatIOn Officer and re-assIgned her to the posItIOn of Intake Officer The Employer must estabhsh that It wIll suffer undue hardshIp before It can move the gnevor out of her home posItIOn and assIgn her to another posItIOn It IS the long accepted Junsprudence that the burden IS on the Employer to prove such to tlus Board Only the Employer knows why It chose to abandon the agreed upon accommodatIOn and why It unIlaterally decIded to transfer the gnevor to a lesser posItIOn It IS because that knowledge IS known only to the Employer that tlus Board must declare It has the procedural onus The UnIon conceded that dIscnmmatIOn can be legal or Illegal In order for the Board to find that the re-assIgnment of Ms Kema whIch constItuted dIscnmmatIOn was acceptable, the Employer must estabhsh that a contmuatIOn of the prevIOusly agreed upon accommodatIOn would have caused It undue hardshIp The UnIon rehed upon Re Undever HPC NA and Teamsters, Chemical Energy and Allied Workers, Local 132 (2002), 106 L.A.C (4th) 360 (Spnngate), Re Board of Governors of Rlverdale HospItal and Canadian UnIOn of Public Employees, Local 79 (1994),41 L.A.C (4th) 24 (Knopf), Re Air Canada and CanadIan Auto Workers, Local 2213 (2001), 101 L.A.C (4th) 311 (DIssanayake), Re Ontario Human Rights CommissIOn et al. and Slmpsons-Sears Ltd. (1985),23 D.L.R. (4th) 321 (S C C), Re 4 British ColumbIa Government and Service Employees UnIOn v Public Service Employee RelatIOns CommissIOn, British ColumbIa Human Rights CommissIOn et ai, Interveners (1999) 176 D.L.R. (4th) 1 (S C C), Re Ontario Public Service Employees UnIOn v Ontario (Ministry of CommunIty and SOCIal Services), [1996] OJ 608 (DIV Ct), and Re Quesnel v London EducatIOnal Centre (1995), 28 C.H.R.R. D/474 (Ont Bd. OfInq) It was contended by the Employer that the UnIon IS argumg the wrong pomt at tlus tIme Ms Brown asserted that the Issue of undue hardshIp IS a "red hernng" The questIOn of whether an employer has properly accommodated an employee mvolves a two-part analysIs The first aspect IS whether the employer has provIded the appropnate accommodatIOn It IS not untIl that detennmatIOn has been made that an evaluatIOn of undue hardshIp should be undertaken In the mstant matter, the Employer has provIded the gnevor wIth the most appropnate accommodatIOn based on the cntena estabhshed by the Human RIghts CommIssIOn It IS stated at paragraph 3 3 of the CommISSIOn's Pohcy and GUldelznes on Dlsablhty and the Duty to Accommodate The duty to accommodate reqUIres that the most appropnate accommodatIOn be determmed and then be undertaken, short of undue hardshIp The most appropnate accommodatIOn IS one that most respects the dIgnIty of the mdIvIdual wIth a dIsabIhty, meets mdIvIdual needs, best promotes mtegratIOn and full partIcIpatIOn and ensures confidentIahty AccommodatIOn wIll be consIdered appropnate If It wIll result m equal opportUnIty to attam the same level of perfonnance, or to enJoy the same level of benefits and pnvIleges expenenced by others or If It IS proposed or adopted for the purpose of acluevmg equal opportUnIty, and meets the mdIvIdual's dIsabIhty- related needs If the accommodatIOn meets the mdIvIdual' s need and does so m a way that most respects dIgnIty, then a detennmatIOn can be made as to whether or not thIS "most appropnate" accommodatIOn would result m undue hardshIp It was submItted by the Employer that It provIded the gnevor wIth the most appropnate accommodatIOn The matter at Issue does not turn on the Issue of undue hardshIp but 5 rather on what IS the appropnate accommodatIOn In arrIvmg at ItS deCISIOn the Board should take mto account alternatIve work and whether It was possible to contmue the gnevor m her pre-dIsabIhty posItIOn Ms Brown asserted that whether an accommodatIOn IS appropnate IS dIstmct from whether there IS undue hardshIp The UnIon has alleged that the accommodatIOn provIded by the Employer IS a vIOlatIOn of the collectIve agreement and the Human Rlghts Code and It IS mcumbent upon the UnIon to prove that assertIOn SImply put, he who asserts must prove the assertIOn and It IS not mcumbent on the other party to dIsprove the assertIOn The Employer suggested that the Junsprudence provIded by the UnIon IS not helpful to thIS Board Many of the cases mvolved Employers who faIled to make any attempt at accommodatIOn In the matter at hand the Employer has provIded an accommodatIOn that the UnIon and the gnevor sImply do not like The Employer rehed upon Re Crown III Right of Ontario and OPSEU - GSB#524/94 (November 6, 1997), wherem VIce Chair Mikus had before her a gnevance that alleged the Employer faIled to accommodate In that decIsIOn It IS eVIdent that the UnIon proceeded first wIth ItS case and that IS what should occur m the present case In the alternatIve, It was submItted that If the Board orders the Employer to proceed wIth ItS eVIdence first, there should be a clear mdIcatIOn that a broad nght of reply wIll be granted to the Employer DECISION It goes wIthout saymg that the body of Junsprudence regardmg an employer's obhgatIOn to accommodate an employee IS relatIvely recent and IS evolvmg Havmg 6 said that, It was surpnsmg to me that tlus Board has not yet been asked to detennme the Issue of whIch party should proceed first m such cases It was clear after the submIssIOns regardmg thIS prehmmary matter that the dIspute between the partIes IS vIewed qUIte dIfferently The Employer asserted that the Issue at hand IS whether the accommodatIOn gIven to Ms Kerna was appropnate On the other hand the UnIon contended that I wIll ultImately have to determme If the Employer dIscnmmated agamst the gnevor when It altered the accommodatIOn and reassIgned her to a lower posItIOn It was the UnIon's VIew that assessment wIll, of necessIty, reqUIre an exammatIon of whether the Employer had to dIscontmue the ongmal accommodatIOn because of undue hardshIp In my VIew, thIS dIfference IS the very Issue that I wIll have to address at the conclusIOn of the case and does not matenally affect the detennmatIOn of onus and order of proceedmg However, It IS helpful to keep these dIsparate VIews m mmd wlule consIdenng thIS prehmmary matter IrrespectIve of whether the nght test to apply IS appropnate accommodatIOn or undue hardshIp there wIll have to be an analysIs of the work, the Employer's workplace and, gIven the gnevor's medIcal restnctIOns, whether the accommodatIOn vIOlated the prOVISIOns of the collectIve agreement and the Human Rlghts Code In Re Au Canada (supra) ArbItrator DIssanayake revIewed comments made by ArbItrator MIchel PIcher m an unreported decIsIOn Re CanadIan Pacific Railway Co dated February 26, 1999 In that decIsIOn Mr PIcher said at page 3 I am satIsfied that the posItIOn advanced by the Brotherhood IS more precIse, and IS to be preferred. It IS well settled m Canadian arbItral and JudIcial Junspnldence that It IS the employer whIch bears the burden of estabhshmg that It has made reasonable efforts to accommodate the dIsabIhty of an employee, to the threshold of undue hardshIp The ratIOnale for the arbItral and JudIcial reasonmg IS not dIfficult to understand. It IS the employer whIch has the fullest knowledge of ItS 7 operatIOns both mSIde and outsIde a gIven bargammg UnIt, or a gIven locatIOn It IS possessed of the fullest knowledge wIth respect to Job vacanCIes or the eXIstence of Jobs whIch could be perfonned by the dIsabled employee wIth a reasonable degree of adJustment As these matters resIde wIthm the employer's knowledge, Just as m the case of dIscIphne or dIscharge, the employer IS best placed to adduce the eVIdence relatmg to efforts at reasonable accommodatIOn, and to demonstrate why an employee's Illness or dIsabIhty cannot be reasonably accommodated. Later at page 6 It was stated. In the mstant case there IS no dIspute as to the threshold Issues of the gnevor's employment, and the fact that he was dIscnmmated agamst on the basIs of medIcal dIsabIhty m bemg held out of work. Therefore, It does fall to the Company to estabhsh, on the balance of probabIhtIes, facts to demonstrate that It made every reasonable attempt to accommodate Ius dIsabIhty short of undue hardshIp As there IS nothmg for the Brotherhood to prove, the Company must proceed first, and bear the ultImate burden of estabhslung that It dId not Improperly fall to accommodate the gnevor m respect of hIS physIcal dIsabIhtIes On page 315 of hIS decIsIOn ArbItrator DIssanayake said. In the present case, the Employer dId not take Issue WIth any of the threshold facts whIch ShIftS the burden to the employer to prove that It comphed WIth the duty to accommodate There was no dIspute that the gnevor was m the employer's employ, that she was dIsabled, that she sought accommodatIOn by seekmg to return to modIfied work, and that she was denIed work because of her dIsabIhty The remammg Issue IS whether she was thereby dIscnmmated agamst unlawfully, whIch turns on whether the employer comphed wIth ItS duty to accommodate I agree wIth arbItrator PIcher's reasonIng that It IS the employer that has knowledge of Issues relatmg to accommodatIOn The employer has mformatIOn as to what medIcal mfonnatIOn was aVailable to It from the varIOUS medIcal professIOnals and what cooperatIOn and mformatIOn, If any, was provIded by the gnevor and/or the UnIon It IS the employer that has exclusIve knowledge of ItS operatIOnal reqUIrements, and what posItIOns wIthm and outsIde the bargammg UnIt were aVailable for consIderatIOn m accommodatmg the gnevor It alone would be aware of what modIficatIOns may be possible m those posItIOns, and what hardshIps would result from those modIficatIOns In summary, It IS the employer who IS m the best posItIOn to demonstrate, consIdenng all of the above, why the gnevor's dIsabIhty could not be accommodated at the tIme Therefore, It 8 IS appropnate that It proceed first and bear the onus of provmg that It dId not Improperly fall to accommodate the gnevor Dunng the course of theIr submIssIOns the partIes entered a number of exhibIts on consent It was apparent from those documents and the facts as addressed by counsel m theIr openmg statements and prelunmary arguments that there was no dIspute that the gnevor had medIcal restnctIOns leadmg to a request for an accommodatIOn There was an accommodatIOn that was acceptable to both partIes and that arrangement became the status quo However, m the spnng of 2002, the Employer mfonned the gnevor that It would no longer contmue that arrangement and, further, that It had "decIded to accommodate (you) m the posItIOn of Intake Officer m the InqUIry and Intake Office" commencmg on June 3, 2002 That change to the status quo IS what the UnIon contests m tlus gnevance The Employer decIded, for reasons prmcIpally known only to Itself, to change the accommodatIOn The eVIdentIary onus therefore hes wIth the Employer to explam the reasons for the change Further, by changmg the accommodatIOn the Employer was, by ItS actIOns, assertmg that It could no longer accommodate the gnevor m the fashIOn that had been the status quo It IS that assertIOn that must be proven The facts m thIS matter shIft the burden to the Employer to prove that It comphed WIth ItS duty to accommodate The Employer dIstmgUIshed the above decIsIOns because there was no effort to accommodate taken by the employers It was suggested that the present matter IS not at all sImIlar because the gnevor has been accommodated, albeIt not to her likmg In my VIew, for the purposes of thIS prehmmary matter, that dIstmctIOn IS neIther relevant nor detennmatIve The matter before arbItrators PIcher and DIssanayake was whether the employer Illegally dIscnmmated agamst an employee by faIhng to accommodate theIr dIsabIhty Whether that failure was a refusal to have the employee present m the workplace m any capacIty or perfonnmg work whIch IS alleged to be mappropnate IS 9 merely a matter of degree and not substance and certamly does not affect the matter of onus I agree wIth the arbItral comments above In the mstant matter, the gnevor and the UnIon are not m a posItIOn to know how the Employer arrIved at ItS deCISIOn to alter the accommodatIOn The UnIon cannot know, and therefore cannot be expected to prove, what operatIOnal consIderatIOns the Employer took mto account when It decIded to accommodate the gnevor m the posItIOn of Intake Officer m the InqUIry and Intake Office The UnIon cannot know what analysIs the Employer adopted m companng the gnevor's medIcal needs to the vanous posItIOns throughout the workplace All of that mfonnatIOn IS held unIquely by the Employer As stated earher, the partIes have dIfferent VIews of what test thIS Board should apply m rendenng ItS ultImate decIsIOn IrrespectIve of whIch of those tests IS correct, It IS the Employer alone who possesses the facts and reasons for ItS actIOns when It denIed the gnevor's request for a contmuatIOn of the earher agreed to accommodatIOn If the proper test to be apphed IS one of appropnateness, obvIOusly the Employer IS unIquely aware of why the Intake PosItIOn IS more appropnate If the UnIon IS nght and the Employer must show that the test to be apphed IS that of undue hardshIp It IS equally ObVIOUS that the only the Employer knows what wIll and what wIll not constItute undue hardshIp for It m these CIrcumstances It IS to be remembered that there are two gnevances m thIS case One alleged that the gnevor was not properly accommodated and the second alleged that the gnevor was dIscnmmated agamst on the basIs of her pnor mvolvement wIth UnIon matters The UnIon has the onus to prove the second gnevance 10 At the commencement of our next day of heanng, If requested to do so, I wIll address wIth counsel the Employer's alternatIve submIssIOn regardmg a request for a liberal nght of reply As a result of tlus decIsIOn It IS necessary to adJourn the heanng days scheduled for Apnl17 and 25,2003 Further dates shall be scheduled. March, 2003 VIce-Chair