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HomeMy WebLinkAbout2017-0124.Troost.19-02-07 DecisionCrown Employees Grievance Settlement Board Suite 600 180 Dundas St. West Toronto, Ontario M5G 1Z8 Tel. (416) 326-1388 Fax (416) 326-1396 Commission de règlement des griefs des employés de la Couronne Bureau 600 180, rue Dundas Ouest Toronto (Ontario) M5G 1Z8 Tél. : (416) 326-1388 Téléc. : (416) 326-1396 GSB# 2017-0124; 2017-0489; 2017-0490 UNION# 2017-0368-0032; 2017-0368-0046; 2017-0368-0047 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN Ontario Public Service Employees Union (Troost) Union - and - The Crown in Right of Ontario (Ministry of Community Safety and Correctional Services) Employer BEFORE Ian Anderson Arbitrator FOR THE UNION Jane Letton Ryder Wright Blair & Holmes LLP Counsel FOR THE EMPLOYER Paul Meier / Andrew Lynes Treasury Board Secretariat Legal Services Branch Counsel HEARING January 29, 2019 -2- DECISION [1] This is a referral of grievances under Article 22.16 of the collective agreement between the parties. Article 22.16 provides for the expeditious resolution of disputes on a without precedent basis. [2] By decision dated June 29, 2018, certain case management directions were issued. Those directions included the filing of declarations and representations and contemplated limited, if any, oral evidence. Those directions also provided for the identification of preliminary issues in advance of the hearing. [3] The parties filed declarations and representations. Many facts are not in dispute. In particular, the Employer has expressly agreed with some of the Union’s facts. The Employer has filed declarations with respect to the facts it disputes. The Employer has also filed declarations and documents with respect to certain additional facts. The Union has, for the most part, not disputed those facts. [4] The Employer has raised certain preliminary issues. The first is the assertion that the grievances are in essence a claim for damages arising out of a workplace injury, that the Workplace Safety and Insurance Act (“WSIA”) constitutes a complete and exclusive code with respect to such damages and that therefore this Board is without jurisdiction to address the grievances. The second is the assertion, in the alternative, that to the extent this Board has concurrent jurisdiction with the Workplace Safety and Insurance Board (“WSIB”), this Board should nonetheless defer to the WSIB, largely because of certain restrictions with respect to the use of information which are relevant to the grievances but forms part of the WSIB claim file. The third is that there is no prima facie case for the breaches of the Ontario Human Rights Code alleged by the Grievor. [5] As I advised the parties during the hearing, the legal issues raised by the Employer’s first and second preliminary issues are significant and complex. Noting the nature of Article 22.16 proceedings, in my view they should not be addressed unless necessary. The nature of the proceedings also weighs against hearing the Employer’s no prima facie case argument as a preliminary issue, as distinct from an issue to be determined while considering the merits of claim. [6] Accordingly, assuming without deciding I have jurisdiction to hear the grievances, I directed the Union to make its submissions as to why it asserts the remedies requested by the Grievor should be granted, on the basis of the undisputed facts and on the Union’s version of the disputed facts. In doing so, I asked the Union to be mindful of the Employer’s second preliminary issue. In particular, the Union was asked to indicate the extent to which it seeks to rely on information which forms part of the WSIB claim file. The Employer was directed to respond and the Union afforded an opportunity to reply. I advised the parties that based on these submissions, I would decide whether I needed to hear evidence with respect to -3- any of the disputed facts and whether I needed to hear full submissions with respect to either of the Employer’s other preliminary issues. [7] Having considered the representations made, and assuming without deciding that I have jurisdiction, the grievances are dismissed for the following reasons. Grievance 2017-0368-0032: Duty to Accommodate [8] The Grievor asserts the Employer breached its duty to accommodate. By way of remedy he seeks $10,000 in general damages for injuries to dignity, feelings and self respect under s. 45.2 of the OHRC. [9] The facts are not in dispute except as noted. [10] On March 5, 2017, the Grievor was assaulted by an inmate and injured. There is no dispute that this was a compensable injury and that the Grievor received benefits under the WSIA. Further, pursuant to the provisions of the Collective Agreement between the parties, the Grievor’s WSIA benefits were in effect topped up and he received the equivalent of his regular salary while absent due to his compensable injury. [11] On March 17, 2017 the Grievor presented himself at work for a 12 hour “T7” shift (i.e. commencing at 0700 hours). The Grievor was told that he would not be permitted to work until he provided medical clearance. The Union asserts the Employer should have advised the Grievor in advance of the requirement to provide medical clearance, and that its actions on March 17 were therefore a breach of its duty to accommodate. [12] I do not agree. This was the first day following March 5, 2017 on which the Grievor had attempted to return to work. When the Grievor presented himself at work on March 17 for his 12 hour shift, he advised the Employer he was only going to work the first half of his shift. While there may be a dispute about whether the Grievor advised the Employer that the remainder of his shift on March 17 was to be marked as WSIB, there is no dispute that he advised the Employer his weekend shifts were to be marked as WSI absences. In doing so, the Grievor clearly put his fitness to work in issue. In these circumstances, it was completely appropriate for the Employer to require the Grievor to provide medical information prior to permitting him to return to work. [13] The Grievor complied with the Employer’s request that he provide medical information. On March 19, 2017, the Grievor sent a copy of a WSIB Form 26 progress report dated March 17, 2017 to Sheena McWhinnie, Staff Services Manager. The Form 26 indicated he could return to work on March 20, 2017 and that he was to work six hour shifts from March 20 -27, 2017 and after March 27, 2017 he could return to 12 hour shifts. It also said “suggest minimize exposure to bright lights and no inmate contact until after March 27/17”. The diagnosis given was “concussion”. The treatment plan was described as “rest, [decrease] light exposure”. In his covering email, the Grievor requested that his schedule be -4- updated to reflect six hour shifts and that he would like to work his overtime shifts on March 20 and 21. The Grievor also indicated he wanted to continue with his overtime program. [14] On Monday March 20, 2017, Ms. McWhinnie contacted the Grievor and advised him that because of the “no inmate contact” restriction, he was not permitted in the building. The Grievor asserted this was discriminatory because there were lots of other staff working in the building with a “no inmate contact” restriction. Ms. McWhinnie advised the Grievor that to her knowledge that was not true. Rather, she advised the Grievor, there were staff in the building who had “limited inmate contact” or “no immediate supervision of inmates” restrictions. [15] On March 20, 2017 the Grievor had been offered and accepted an overtime shift on March 21, 2017. The shift was cancelled by the Employer. The Grievor asserts this constitutes a further act of discrimination. [16] I disagree. There is no direct evidence of discrimination on the part of the Employer in cancelling the shift. The question is whether discrimination should be inferred. On March 20 the Grievor was offered a 12 hour overtime shift on March 21 by the institution’s scheduling department based on availability which the Grievor had entered into the system on March 4, before his accident. Given the restriction of “no inmate contact until after March 27” it was reasonable for the Employer to cancel the March 21 shift. There is nothing to suggest it was done for any other reason. Accordingly, the act of cancelling that shift does not in itself support an inference of discrimination. [17] At the request of the Union, a “Return to Work” (RTW) Meeting was held on March 22, 2017. Present were the Grievor and the Local President, Chris Butsch, and Ms. McWhinnie and the Deputy Superintendent of Operations - Staff Services, Judy Santos. The parties’ declarations give competing versions of the meeting, but there is no question that it became heated. There was disagreement in the meeting about how the “no inmate contact” restriction should be interpreted. Mr. Butsch took the position the Grievor could work in the X-ray department, where there were no inmates. Ms. Santos took the position this would still give rise to a risk of inmate contact every time the Grievor entered or exited the building, as inmates performed functions around the exterior of the building as part of a work program. Mr. Butsch took the position the work program could be halted and the inmates taken inside the building each time the Grievor entered and exited the building. Ms. Santos took the position this would be too disruptive and that she was not prepared to take the risk that the Grievor would have inmate contact, contrary to his medical restrictions. Mr. Butsch raised the fact that no Union Health & Productivity Program (“HPP”) Workplace Representative was present, as required. The Union’s declarations are to the effect that Ms. Santos accused the Union of “playing games” and that she said the Employer would appeal the Grievor’s WSIB claim. The Employer’s declarations deny that this is what occurred, and also offer an explanation with respect to the absence of the Union HPP Workplace Representative. Shortly after, the meeting ended. -5- [18] The Union asserts the Employer breached its duty to accommodate by taking an unduly narrow view of the “no inmate contact” restriction and by declining to halt the work program each time the Grievor entered or exited the building. The Union also asserts the threat to appeal the Grievor’s WSIB claim constituted a reprisal arising from its attempts to get the Employer to fulfill its duty to accommodate. [19] I find no merit to the allegation that there was a threat of reprisal against the Grievor for seeking accommodation. Assuming Ms. Santos made the statement (which she denies), it would appear that she made it not to the Grievor but to Mr. Butsch in the context of a heated exchange. There is no basis to conclude that she ever intended to carry through with this action. Nor for that matter is there any basis to conclude the Grievor felt threatened. In this respect, I note the Grievor’s declaration indicates that he was “angry”, “frustrated” and “deeply offended”. It does not at any point indicate that he felt threatened. [20] The question of accommodation is to be approached on the basis of common sense and flexibility, having regard to the factual situation in each case. In this case, as of the March 22, 2017 meeting the Grievor had provided one medical note with respect to his restrictions. Those restrictions were “no inmate contact”. While Mr. Butsch took the position Ms. Santos was reading “no inmate contact” too narrowly, on its face this restriction is clear. Given that the Grievor was employed as a correctional officer in a maximum security institution with hundreds of inmates, this restriction raises obvious concerns. A reasonable approach would have been to seek clarification of the restrictions. I note in this respect that because of the provisions in the collective agreement, the Grievor was receiving his full regular pay while absent on WSIB. [21] Despite the break down in the meeting of March 22, 2017, the Grievor did in fact obtain clarification with respect to his restrictions. On March 23, 2017, the Grievor went to a doctor who completed a Functional Abilities Form (“FAF”) in relation to his WSIB claim. On Friday, March 24, 2017, the Grievor emailed a copy of the FAF to Ms. McWhinnie. The FAF indicated “minimal [to] no inmate contact”. It also stated: “Graduated hours recommended until Mar 27 -> 6 hrs. After Mar 27 may attempt 12 hrs, no inmate exposure.” [22] On Monday, March 27, 2017 there was a further meeting of the Grievor, Mr. Butsch, Ms. McWhinnie and Ms. Santos to consider the new medical information. On this occasion they were joined by a Union HPP Workplace Representative. The parties agreed the Grievor could work in the X-ray department. The Employer assigned the Grievor to an E9 shift (i.e. an eight hour shift commencing at 0900 hours) in X-ray, Monday to Friday. The Union noted on the form its disagreement with the Employer “limiting” the Grievor to the X-ray department, and asserted that there were “other posts available” which the Grievor could work given his restrictions. -6- [23] At one level, the question of whether there were other posts available which the Grievor could work given his restrictions is irrelevant. The Employer’s obligation was to provide reasonable accommodation. It did so. The reasonable accommodation is not required to be the preferred accommodation of the Grievor (or the Union). [24] Having said that, it appears what primarily motivated the Grievor and the Union in seeking agreement that the Grievor could work other posts, was to increase the possibility of the Grievor working overtime. Overtime was important to the Grievor, as it is for many correctional officers. After another meeting on April 3, 2017, attended as well by a WSIB RTW Specialist, the parties agreed that in addition to the X-ray Department position, the Grievor might try another a position in the central control module. The parties also agreed the Grievor would be considered for available overtime, provided he would have at least 24 hours before and after his scheduled shifts and any such overtime. [25] The Union agrees this was an appropriate accommodation plan for the Grievor but asserts the Employer took far too long to arrive at the plan. I see no merit to this assertion. The Grievor went off work due to injury on March 5, 2017. For the reasons stated above, the Employer reasonably concluded that he was not able to return to work at all until March 27, 2017. The medical information which the Grievor had provided included a requirement for restrictions in his hours until March 27, 2017. The March 17, 2017 Form 26 indicated a need for “rest”. The March 23, 2017 indicated the Grievor might “attempt” 12 hours after March 27, 2017. As of April 3, 2017, the parties agreed the Grievor could work overtime, subject to the significant ongoing limitations noted. These facts do not show delay, let alone unreasonable delay, on the part of the Employer in only agreeing on April 3, 2017 to a plan which provided opportunity for overtime. [26] While I have discussed each of the incidents relied upon by the Union individually, for the same reasons I would find their cumulative effect does not establish a breach by the Employer of its duty to accommodate. Grievance 2017-0368-0046: Overtime [27] This grievance alleges violations of various articles of the collective agreement and of the Grievor’s human rights with respect to alleged failure to schedule him for overtime during the period March 20 to April 20, 2017. During the hearing, only claims with respect to overtime on March 30, April 1, 3 and 5, 2017 were advanced. Claims in relation to any other days in the period March 20 to April 20, 2017 are hereby dismissed. [28] With respect to each of the remaining claims for overtime, the Employer determined the need for overtime two days in advance of the day in question. So, for example, on April 3, 2017, the Employer determined a need for overtime coverage on T7 shift on April 5, 2017. The Grievor had previously indicated he was available to work that shift. The Grievor was recorded on HPRO as -7- “bypassed” when offers of overtime were made. The Grievor claims he should have been offered this overtime. [29] As noted above, given the medical information it had, the Employer’s determination not to offer the Grievor overtime up until the April 3, 2017 RTW Meeting was reasonable. Accordingly, I find no breach of the collective agreement in the Employer’s decision not to offer the Grievor overtime with respect to any of the shifts claimed. Grievance 2017-0368-0047: “Not qualified” notation [30] This grievance relates to the fact that the Grievor was recorded on HPRO (a computer program used by the Employer for this and other purposes) as “not qualified” on two occasions when the Employer determined not to offer him overtime. This information was publicly available and the Grievor states he became the butt of jokes from co-workers as a result. By way of remedy he seeks $5,000 in general damages for injuries to dignity, feelings and self respect under s. 45.2 of the OHRC. [31] Overtime is offered by the institution’s scheduling staff. When recording the reason overtime is not offered to an employee, a staff member selects a term from a pull down menu in HPRO. Among the terms on the menu are “not qualified” and “bypassed”. A review of the HPRO records in relation to the Grievor indicate that on most occasions the term “bypassed” was selected, but once each on March 28 and 29, 2017 the term “not qualified” was selected. I am unable to infer any improper intent on the part of the Employer from the fact the term “not qualified” was selected on two occasions. Further, assuming without deciding the term “not qualified” was not appropriate, there is no evidence the Employer was aware of the fact the Grievor was the butt of jokes as a result of the use of this term. Accordingly, I find no breach of the collective agreement and the grievance is denied. Conclusion [32] For the reasons given, assuming without deciding I have jurisdiction to hear these grievances, they are denied. Given my conclusions, it is not necessary to determine the other issues raised by the Employer. Dated at Toronto, Ontario this 7th day of February. 2019. “Ian Anderson” ______________________ Ian Anderson, Arbitrator