HomeMy WebLinkAbout2004-0901.Gareau.05-10-31 Decision
Crown Employees Commission de ~~
Grievance Settlement reglement des griefs
Board des employes de la
Couronne
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GSB# 2004-0901
UNION# 2004-0582-0005
IN THE MATTER OF AN ARBITRATION
Under
THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT
Before
THE GRIEVANCE SETTLEMENT BOARD
BETWEEN
OntarIo PublIc ServIce Employees Umon
(Gareau) Union
- and -
The Crown In RIght of OntarIo
(Mimstry of Commumty Safety and CorrectIOnal ServIces) Employer
BEFORE RandI H. Abramsky Vice-Chair
FOR THE UNION GavIn Leeb
Barnster and SOlICItor
FOR THE EMPLOYER Sunee1 Bahal
Counsel
Mimstry of Government ServIces
HEARING October 28 2005
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DeCISIon
On February 28 2004 the grIevor Anne Gareau, filed a grIevance allegIng that her
employer the Mimstry of Commumty Safety and CorrectIOnal ServIces, had "vIOlated my rIghts
under the OntarIo Human RIghts Code by faIlIng to accommodate me as prescrIbed In the
Human RIghts Code" The merIts of that grIevance are before Vice-Chair Loretta Mikus Also
before Vice-Chair Mikus IS the Umon's motIOn for InterIm relIef In that matter presently
scheduled for November 14 2005 The sole Issue before me IS whether prIor to the hearIng for
InterIm relIef, the Umon must provIde the Employer wIth addItIOnal partIculars on the underlYIng
grIevance The Employer has moved for an order compellIng the Umon to provIde addItIOnal
partIculars prIor to the November 14 2005 hearIng for InterIm relIef
At the hearIng, the partIes presented to me a number of documents a copy of the orIgInal
grIevance the Umon's letter of partIculars dated December 2, 2004 and the package of
documents whIch were courIered to counsel for the Employer Mr Sunee1 Bahal, on the same
date correspondence from Mr Leeb counsel for the Umon, to Mr Bahal outlImng the Umon's
motIOn for InterIm relIef and Mr Bahal's response, dated October 16 2005 outlImng hIS
posItIOn that the partIculars provIded were Inadequate Both partIes then argued theIr respectIve
posItIOns
After carefully consIderIng the documentary eVIdence provIded and the submIssIOns of
the partIes, I conclude that the Employer's motIOn must be demed.
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PnncIples of natural JustIce reqUIre that a party In a labour arbItratIOn know what the
dIspute IS about - that each sIde know the case that It IS reqUIred to meet. ThIS IS Just as true In a
motIOn for Intenm relIef as It IS for the case on the ments OPSEU (Union Grievance) and
Ministry of Public Safety and Security (2003) GSB No 2113/02 (DIssanayake)
The first part of the two-part test In a motIOn for Intenm relIef IS that "there must be an
arguable case on the ments of the gnevance" OPSEU (Clarke) and Ministry of the Attorney
General (2005), GSB No 2004-3263 (Abramsky) AccordIngly the party OppOSIng the motIOn
for Intenm relIef must understand what the gnevance IS about In order to contest thIS pOInt.
Generally partIculars Involve the "who what, where, when and how" of the facts of the
alleged vIOlatIOn. OPSEU (Simon et al.) and Ministry of Correctional Services (2001), GSB No
1390/00 (Mikus)
In thIS case, It IS my VIew that the Umon's letter If December 2,2004 combIned wIth the
gnevance and the documents dIsclosed, provIde the reqUIred InfOrmatIOn. The gnevance Itself
IdentIfies that the gnevor alleges that she has not been properly accommodated under the Ontano
Human Rights Code The December 2, 2004 letter from the Umon states that the "central Issue In
thIS gnevance IS that of accommodatIOn of the Gnevor's dIsabIlItIes " It states that she had
been moved to the Control room, and that "[d]espIte thIS change, she contInues to mISS a
substantIal amount of workIng tIme due to her ongOIng medIcal condItIOn." It adds that the
gnevor has, SInce 1998 been "seekIng, wIthout resolutIOn, accommodatIOn In the form of re-
classIficatIOn and/or reduced workIng hours and a schedule sUIted to her medIcal restnctIOns" It
further states that "the Umon wIll assert that, partIcularly In VIew of recent medIcal reports such
as the one attached whIch determIne that her eXIstIng posItIOn/hours are not sUItable, the
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employer has faIled to fulfill ItS oblIgatIOn to assess other posItIOns and/or workIng arrangements
whIch would sUItably accommodate the Gnevor" FInally It states that It was also "the Umon's
posItIOn that as long as sUItable accommodatIOn has not been provIded, It IS Inappropnate for the
employer to approach the Gnevor's absenteeIsm as an attendance management Issue"
Counsel for the Employer asserts that the partIculars provIded are general allegatIOns
whIch lack specIfics, and that It needs to know the specIfics of her claims With respect, I cannot
agree that partIculars provIded are InSUfficIent. The claim IS that the accommodatIOn In Control,
whIch Involves 12-hour ShIftS, was unsUItable In that she contInued to mISS work under that
accommodatIOn. It relIes on the November 16 2004 medIcal InformatIOn from Dr Usha. It
asserts that the Employer should have explored changIng her hours/schedule or consIdered other
posItIOns In an attempt to accommodate the gnevor In my VIew the gnevance, the December 2,
2004 letter and the documents reveal the "who what, where, when and how" of the allegatIOns,
sufficIent for dealIng wIth the Intenm motIOn. In my VIew a number of the Employer's concerns
- that there IS no medIcal whIch shows that the gnevor IS unable to work as a CorrectIOnal
Officer and that the Umon has not demonstrated how her assIgnment vIOlated the medIcal
restnctIOns on file - are more In the nature of potentIal defenses to the Umon's claims, rather
than the basIcs of the Umon's posItIOn.
AccordIngly for the reasons set forth above, the Employer's motIOn for addItIOnal
partIculars IS demed.
Issued at Toronto thIS 31 st day of October 2005
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