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HomeMy WebLinkAbout2005-2137.Asselstine.06-12-22 Decision Crown Employees Grievance Settlement Board Suite 600 180 Dundas Sl. West Toronto, Ontario M5G 1Z8 Tel. (416) 326-1388 Fax (416) 326-1396 Commission de reglement des griefs des employes de la Couronne Bureau 600 180, rue Dundas Ouest Toronto (Ontario) M5G 1Z8 Tel. : (416) 326-1388 Telec. : (416) 326-1396 IN THE MATTER OF AN ARBITRATION Under Nj ~ Ontario GSB# 2005-2137 UNION# 2005-0234-0231 THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT BETWEEN BEFORE FOR THE UNION FOR THE EMPLOYER HEARING Before THE GRIEVANCE SETTLEMENT BOARD Ontario Public Service Employees Union ( Assel stine) - and - The Crown in Right of Ontario (Ministry of Community Safety and Correctional Services) Joseph D. Carrier Elizabeth Nurse Ryder Wright Blair & Holmes LLP Barristers and Solicitors George Parris Counsel Ministry of Government Services July 20 & December 5, 2006. Union Employer Vice-Chair 2 Decision In the case before me Mr. Kenneth Asselstine, an employee presently working as a Records Clerk at the Ministry's Correctional Facility at Maplehurst, Ontario, seeks reclassification and transfer to the position of Correctional Officer. This grievance which was filed on or about September 21,2005, claims that the Employer has violated provisions of the collective agreement and the Human Rights Code in failing to accommodate his needs. This award deals with a preliminary motion by the Employer with respect to an earlier accommodation provided to the Grievor. Mr. George Parris, counsel for the Ministry, asserted that Mr. Asselstine had become a Records Clerk in June, 1998 as a result of an earlier accommodation. That accommodation had been implemented to comply with the terms of a settlement resolving a layoff grievance alleging failure to accommodate. That settlement, he submitted constitutes a bar to this grievance. On behalf of the Union, Ms. Elizabeth Nurse, took the position that the duty to accommodate a disabled or handicapped employee is an ongoing duty or obligation of the Employer. The previous accommodation ought not to bar the current request that the Grievor be accommodated in his pre-injury classification of Corrections Officer. The purpose of the Human Rights Code and the duty to accommodate is to render respect and dignity to the handicapped person and to recognize the unique contribution that each employee can make in the workplace. During the period since Mr. Asselstine was originally accommodated in the lower paying classification, other employees have been accommodated in the Correctional Officer's class. Accordingly, an effort should be made by the Parties to revisit the issue and assess the Grievor's capacity to be accommodated in his pre-injury position. 3 In all the circumstances, the issue to be determined at this stage in proceedings is whether or not the existing accommodation which resulted from a settlement of a grievance constitutes an impediment to the Grievor's present claim to be accommodated in the position of Correctional Officer. The Background To assist in the presentation of the matter, counsel prepared an Agreed Statement of Fact. There were eight paragraphs to that statement of which the following seven are relevant to the motion presently before me: "AGREED STATEMENT OF FACT 1. Ken Asselstine began employment with the Ministry as a Correctional Officer on September 12,1997. 2. In 1991 he was involved in a non-work related car accident that caused extensive injury to his back, neck and shoulders. As a result of this accident he was left with permanent restrictions with respect to his back and his left knee. He is unable to do any activity that would cause strain to his back, must avoid strain due to walking or standing with respect to his knee. 3. Upon his return to work in fall of 1994, he was given a temporary assignment as a Records Clerk at the Burtch Correctional Centre and subsequently at the Hamilton Wentworth Centre. In June 1995 he was notified that he had been declared surplus, and would be released from his employment effective September 29, 1995 because the Ministry could not locate further work for him. 4. Mr. Asselstine filed a grievance on June 22, 1995 claiming discrimination on the grounds of handicap and asked to be immediately employed within the scope of his handicap. 5. The grievance was settled on June 15, 1998. The settlement provided that he would be reinstated with no loss of seniority or service from the date of his release to the date of his reinstatement to a classified position as Records Clerk (OAG8) at Maplehurst Correctional Complex. 6. During the time that Mr. Asselstine has worked at the Maplehurst Correctional Centre in the Records Office, and continuing at present, there have been Correctional Officers with physical restrictions accommodated in areas such as Control and Reception. 7. On September 21, 2005 Mr. Asselstine filed the current grievance regarding a violation of the collective agreement and the Ontario Human Rights Code in respect of "the handling of[hisJ accommodation needs." He requested that he be accommodated as a Correctional Officer. " 4 I do not propose to set out the entirety of the grievance filed in 1995 or the Minutes of Settlement which resolved it in 1998. However, it is important or relevant to the matter before me that Mr. Asselstine's pre-injury position was as a Correctional Officer. Notwithstanding that fact, the Grievor was accommodated in the position of Records Clerk as a resolution of his claim in 1998. Furthermore, the Parties were agreed that there has been no significant change to the Grievor's condition which precipitated his accommodation in 1998. Finally, there is no assertion by the Union that the accommodation or the terms of the Memorandum of Settlement entered into in 1998 were void as a result of any provision therein having constituted a violation of the Human Rights Code. The Argument and Decision For the Employer, Mr. Parris did not dispute the obligation to accommodate restrictions generally. Additionally, if the Grievor's condition here had changed or worsened since the original accommodation, the Employer's obligation to re-engage in the process might have revived depending on the nature and extent of the change. Here, however, there has been no change in his medical condition, and, he has been employed and worked in the position of Records Clerk in which he was accommodated for over eight years. It was and is a suitable accommodation to his needs. In the circumstances, it is the Employer's position that there was no obligation to search for other work which the Grievor might prefer to that in which he has been accommodated. This is not a case in which the Grievor has bid a vacancy in an alternative position; rather, here the Grievor simply asserts an ongoing entitlement to be accommodated in accordance with his preferences. The Employer does not dispute the Grievor's entitlement to exercise his rights in a similar way to any other employee under the collective agreement. However, there is no new factor at this time to trigger any rights which the Grievor might enjoy. There is nothing in the 1998 settlement to 5 indicate that the accommodative position was to be temporary. Accordingly, it must be construed to have been intended as a permanent accommodation. In addition to the foregoing, the settlement reached in 1998 included other terms and concessions to the Grievor at that time in exchange for which the Grievor released the Employer from all claims relating to his employment up to the time of the settlement. Among the positions which were open for the Parties' consideration to accommodate the Grievor at that time was that of Corrections Officer. Notwithstanding that, the Parties agreed upon the position of Records Clerk as an appropriate accommodation for the Grievor. The Company ought not to be obliged to revisit that issue. Mr. Parris submitted that arbitrators should respect the terms of settlement reached by the Parties in resolution of their disputes. Such settlements ought not to be undermined unless it is apparent that a provision of the document is inconsistent with some legislation, in this case, the Human Rights Code. There is no such assertion by the union in this case. In support of that position Mr. Parris referred me to the following three cases: 1. Re Grey-Bruce Health Services and OPSEU Local 260 (Locking), [2004], 116 L.AC. 4th 161 (W.A Marcotte); 2. Re Sobeys and UFCW Local 175 (Cooper) [2004], 105 L.AC. 4th 346 (M. Bendel); 3. Re Ontario Liquor Board Employees Union and The Crown in Right of Ontario (Liquor Control Board of Ontario) (Robinson) (February 6, 2006) (Carrier, GSB File # 2004- 4023). In addition to the foregoing position, Mr. Parris pointed out that so long as an accommodation is reasonable, an employee is not entitled to pursue his preferred or the highest level of possible accommodation. Rather, the Employer's duty is discharged when a reasonable accommodation has been provided. In this case the Records Clerk position was reasonable and was accepted by 6 the Grievor. There is no continuing obligation on the Employer or for that matter the Union to seek out a "better" or preferable accommodation for Mr. Asselstine. In support of this latter position Mr. Parris referred us to a Grievance Settlement Board award issued by Vice-Chair Felicity D. Briggs on February 10,2005 between OPSEU (Kerna) and The Crown in Right of Ontario (Ontario Human Rights Commission) pursuant to Grievance Settlement Board File Nos. 2002-0944, 2002-2343. For the Union, Ms. Elizabeth Nurse argued that the prohibitions against discrimination by reason of disability set out in the Human Rights Code, which is incorporated by reference into the collective agreement by reason of Article 3.1, have no temporal parameters and the duty upon the Employer to accommodate an employee's disability is continuous. In her submission, the duty or obligation to consider the accommodation ofMr. Asselstine in his original position as Corrections Officer is a continuing one. This is premised on a purposive interpretation of the Code itself. This approach was referred to as the "unified" approach by the Supreme Court of Canada in what is often referred to as the Meiorin decision British Columbia Public Service Employee Relations Commission v. B.c.G.s.E. U ("Meiorin") [1999] 176 D.L.R. (4th) 1. In that decision, the Supreme Court of Canada outlined a unified test to determine the existence of both direct and adverse effect discrimination. In establishing that single three step test, the Court remarked at paragraph 55 that "this approach is premised on the need to develop standards that accommodate the potential contributions of all employees in so far as this can be done without undue hardship to the employer". This approach, Ms. Nurse argued is in keeping with the preamble to the Code which recognizes the "inherent dignity and the equal and inalienable rights of all members of the human family". In light of those ideals, the most appropriate accommodation is that which would maintain the employee, in this case Mr. Asselstine, in that position which most closely resembles the classification he occupied at the time his disability 7 occurred. In this case, reclassification as Corrections Officer should remain a goal to be sought by the Parties as an accommodation of Mr. Asselstine even where he had agreed to accept a lower paid classification in the past. The accommodation at the lower classification should be perceived as temporary if at some point in the future the Grievor might be accommodated in his pre-injury classification. With respect to the 1998 settlement, Ms. Nurse argued that there was no language in the document which precluded Mr. Asselstine from returning to his "home" position if, as and when it became available. Since it now appears that other employees have been accommodated in that position, similar consideration should be afforded to Mr. Asselstine. In another view, Ms. Nurse argued that the settlement may be set aside where a term or terms of the document are inconsistent or conflict the requirements of the Human Rights Code. Accordingly, notwithstanding the professed view of arbitrators that settlements reached by the Parties should not easily be set aside, they are often viewed as void when inconsistent with the Code itself. (See for instance Re OP SEU and Ministry of Community and Commercial Services [1996] 96 C.L.L.C. para. 230-016 (Ontario Court General Division). In her submission, then, the settlement reached in 1998 ought not to be viewed as the exhaustion of the Grievor's rights or the Employer's duty to accommodate him with respect to the position of Corrections Officer. Rather, since the Grievor might have been accommodated and still might be accommodated in his original position, and, since that accommodation would better fulfil the purpose of the Human Rights Code, the obligation to so accommodate survives the earlier settlement. Now, since other Officers have been so accommodated, the Grievor should be considered for a similar accommodation in that position. 8 Unless the Grievor's peculiar disability renders the accommodation an undue hardship for the Employer, the Grievor's rights to be free from discrimination should be sustained. With respect to a remedy, the Grievor does not seek any benefit prior to the date of filing the current grievance but looks to an order going forward from that time as well as a direction that the Parties meet and discuss his accommodation with respect to the Corrections Officer position. The Decision I have considered the facts in this case as well as the representations of the Parties. It is my view that the Employer's argument must prevail here. To put it as succinctly as possible, some eight years ago the Parties agreed that the Records Clerk position would be an appropriate accommodation for the Grievor's disability. The passage of time since that settlement has underscored the fact that the accommodation was appropriate or reasonable. Indeed, the Union does not challenge the settlement on the basis that it was invalid or void by reason of some conflict with the Human Rights Code at the time it was entered into. Since it was a valid agreement and settlement reached between the Parties inclusive of the Grievor at that time, all other things remaining equal, there is no basis upon which it should be set aside at arbitration. In circumstances such as these, the Parties agreement should be sacrosanct. As in the Grey-Bruce Health Services case referred to by the Employer and unlike the Ontario Divisional Court decision in the Blackhall case referred to by Ms. Nurse, there was nothing in the Minutes of Settlement respecting Mr. Asselstine to suggest any conflict with the Human Rights Code. Typically, arbitrators turn to the Human Rights Code only where the Minutes of Settlement incorporate some term which conflicts with the statute. No such conflict is alleged to have occurred in this case and, accordingly, the settlement should prevail. 9 To put it somewhat differently, where as here, an employee has incurred an injury resulting in a disability his rights arise under the Code. The Employer is then obliged to consider an appropriate accommodation if such is possible without undue hardship. Where the Employer, the Union and the Employee consider possible alternatives and ultimately agree upon one which accommodates the employee's needs, it is my view that those rights have then been satisfied. Having agreed to an appropriate accommodation, the employee's entitlement has been exhausted unless and until there is some change either in his personal condition or within the workplace which impact upon the existing accommodation and trigger fresh rights to be accommodated in some different way. For instance, a trigger might be a worsening of the Grievor's condition and/or a restructuring within the Employer's operations such that the job no longer exists or is no longer suitable for the employee's needs. Of course, these examples are just a couple of possible scenarios which might trigger a change in the accommodation needs of an employee. There are, no doubt, others; however, none exist on the facts currently before me. Ms. Nurse suggested that the settlement reached in 1998 on the accommodation of the Grievor in the Records Clerk position should be viewed as temporary since it was not an accommodation in his pre-injury position. However, had the Parties considered that the Grievor's position was temporary and/or that, in time, he would be accommodated as a Corrections Officer, they could well have structured their settlement on that premise with a view to returning him to the higher paid position. However, no such terms exist in the Minutes of Settlement and, absent the preservation of any rights to be accommodated in that classification, the Grievor must be taken to have relinquished them. I need not determine the question as to whether or not an employee is entitled to be accommodated in the highest or his own preferred classification rather than a position which reasonably accommodates his needs. That issue might properly have arisen in 1998 when the 10 Parties directed their minds to an appropriate accommodation for the Grievor. However, where they did reach agreement on what must have been a reasonable accommodation at the time, it would not be appropriate to look behind that to determine whether or not the Grievor was entitled to some other accommodation. Such an inquiry would not have been appropriate the day after the settlement was reached nor, in my view, is it any more appropriate today, some eight years later. In the circumstances here, the accommodation of the Grievor in 1998 as a Records Clerk fulfilled the purpose and intent of the legislation by preserving the Grievor's opportunity to continue working for the Employer in a position suitable to his needs. His rights or entitlement to have his needs, which resulted from his injury, accommodated were satisfied at that time and, further, those rights were exhausted unless and until there was some change in circumstances which would trigger a renewal or revision of his rights under the Code. For the foregoing reasons Mr. Asselstine's grievance must be dismissed. DATED at Toronto this 22nd day of December 2006.