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HomeMy WebLinkAbout2004-3604.Lauria.08-03-26 Decision Commission de Crown Employees Grievance Settlement règlement des griefs Board des employés de la Couronne Suite 600 Bureau 600 180 Dundas St. West 180, rue Dundas Ouest Toronto, Ontario M5G 1Z8 Toronto (Ontario) M5G 1Z8 Tel. (416) 326-1388 Tél. : (416) 326-1388 Fax (416) 326-1396 Téléc. : (416) 326-1396 GSB# 2004-3604 UNION# 2005-0517-0001 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN Ontario Public Service Employees Union (Lauria) Union - and - The Crown in Right of Ontario (Ministry of Community Safety and Correctional Services) Employer BEFOREVice-Chair Barry Stephens FOR THE UNION Scott Andrews Grievance Officer Ontario Public Service Employees Union FOR THE EMPLOYER Pauline Jones Staff Relations Officer Ministry of Community Safety and Correctional Services HEARING February 20, 2008. 2 Decision The parties have agreed to an Expedited Mediation-Arbitration Protocol. It is not necessary to reproduce the entire Protocol here. Suffice it to say that the parties have agreed to an ?Expedited Arbitration? process, which forms part of the protocol. The process adopted by the parties provides for a canvassing of the facts through written and oral submissions. Arbitration decisions are issued in accordance with Article 22.16 of the collective agreement, with succinct reasons. The grievance in this case relates to Vincent Lauria. The grievor alleges the employer violated Article 2, 3 and 6.7 of the collective agreement by failing to provide appropriate accommodation. The grievor is a Correctional Officer. In 1986 he suffered a workplace injury. In 2002, he was accommodated in the position of institutional driver. Early in 2005 the grievor was removed from the position of institutional driver and eventually placed in the Unit 5 position where he remains. I will deal with each issue and then provide a remedy at the conclusion of the award. The facts give rise to the following issues: 1. Application of Article 6.7 The union relies on Art. 6.7 of the collective agreement, which states: Where the duties of a position are modified to accommodate an employee with a disability, the position shall not be considered a vacancy for the purposes of this article. The union asserts that the driver position was modified to accommodate the grievor, and indeed this is confirmed in the employer?s submissions. The evidence appears to indicate that the 3 grievor became aware at some point that the driver position was temporary. The circumstances raise the question of whether the employer was freed from the obligations of Art. 6.7 if the grievor was aware that this accommodation might be temporary. In my view, even if the employer had an advance written agreement with the grievor that the accommodation was temporary, which it did not have, such an agreement would not have been sufficient to oust the application of Art. 6.7. Article 6.7 is an agreement between the parties to the collective agreement, and the grievor did not have the right to contract out of the collective agreement provision. The union would have the right to make some alternate arrangement with the employer, but I have been provided with no evidence that the union was aware of, let alone agreed to, a variance in the application of Art. 6.7 with respect to the grievor?s accommodation in the driver position. I do not accept that the arrangement was somehow implicitly temporary (and thus outside Art. 6.7 presumably) because the job attracted a lower rate, and thus would eventually have meant the red-circling of the grievor?s wages. As a result, I am compelled to find that the grievor?s removal from the driver position was a violation of Art. 6.7. 2. Manner of Removal from Driver Position Quite apart from the application of Art. 6.7, the union alleges that the manner of the grievor?s removal from the driver position constitutes a breach of the grievor?s right to dignity and self- worth in accommodation, contrary to the Human Rights Code. It is clear from the grievor?s own statements at the hearing that he became aware that the employer did not consider the driver position a permanent accommodation, rather that it was intended it remain his accommodation until the completion of the NEL award. He understood that, once the NEL award was completed, there would be a decision as to what would happen for the ?rest of his career.? However, the grievor advised the employer of the completion of the NEL process in January 2004, one year prior to his removal from the driver position. There is no evidence that any steps 4 were taken during that one year period to identify an appropriate accommodation position for the grievor. Valuable time was lost that might have been used for assessment of available work against the grievor?s restrictions and for additional training, if such proved necessary. As a result, when the grievor was removed form the driver position, he appears to have been engaged in ?make work? assignments during the period from January to May 2005, while a longer term accommodation was under consideration. The grievor stated that he ?did nothing? for five months. After reviewing these facts, and the submissions of the parties, I have concluded that the manner in which the grievor was removed from the driver position was not appropriate, and could have been avoided had the employer taken action in January 2004. 3. Assignment to Unit 5 The grievor was off work as a result of another workplace injury during June and July 2005. When he returned, he was assigned to Unit 5. The union alleges this assignment was a further breach of the grievor?s rights, in that the position is question is highly undesirable and can only be seen as ?punishment? for requiring accommodation. The grievor continues to work in the Unit 5 position. The difficulty for the grievor with respect to this part of the grievance is that Unit 5 was one of two possible accommodation positions he had suggested to the employer, the other being the laundry. The grievor worked in Unit 5 for a period of time then, at his request, was transferred to the laundry. However, the grievor experienced what the union described as a ?poisoned work environment? in the laundry, and he was returned to Unit 5. Since Unit 5 was one of the possible accommodations suggested by the grievor, I cannot conclude that placement in that position 5 should be considered a further violation in the form of retribution for ongoing accommodation needs. 4 Consideration of Possible Accommodated Positions The union alleges that the employer failed to consider the full range of accommodation options available, and that, as a result, the grievor has now been restricted to the Unit 5 position and faces the prospect of spending the remainder of his career in that position. Specifically, the union alleges the employer has not given appropriate consideration to the positions in scheduling and staff training. Although, as stated above, the grievor suggested Unit 5 as one possibility, there does not appear to be any evidence to contradict his assertion that his requests to be considered for other positions have not been acted upon. While the grievor does not get to choose his preferred accommodation, it is my view that reasonable options should be considered. Given the circumstances of this case, a review of the grievor's accommodation is required on a going forward basis. As a result, this issue is best addressed by the remedy outlined below. 5 Restriction Re Hours of Work In January 2005, the grievor performed a Functional Abilities Evaluation (FAE) conducted by Work Able. The report from Work Able contradicted a restriction from the grievor's doctor that the grievor was to work only Monday to Friday, 0700-1500. The FAE concluded that the grievor was capable of working shifts. There was some dispute about this issue at the time. In my view, there is no point in pursuing this part of the grievance, since it deals with the grievor's medical condition at a specific point in the past. Fresh medical evidence will be required in order to 6 determine the grievor's ongoing accommodation needs, and I believe this should form part of the remedy in this case. Decision The matter is remitted back to the parties for a re-assessment of the grievor's ongoing accommodation needs, with the following directions: 1 ? The parties are to assess whether it is appropriate for the grievor to continue to work exclusively in Unit 5. The parties are directed to engage in a process to identify and/or eliminate possible alternate accommodated positions. 2 ? The process of assessing alternate accommodation needs should begin with a full medical report from the grievor's doctor outlining current medical restrictions and prognosis. No other steps can be taken with respect to identifying alternative accommodation positions until such an updated report is provided. 3 ? The employer has the right, as always, to request explanations as to the meaning or applicability of the medical restrictions and other medical information provided by the grievor's doctor. 4 ? In the event of a dispute between the parties with respect to medical information, the parties are to agree on a neutral specialist to provide a medical opinion. The specialist will be chosen as follows: The employer will provide the union with a list of three suggested specialists. The union will choose one name from the list and the grievor will be assessed by that specialist. 7 5 ? Once updated medical information is provided, the union will provide, no more than 15 days after the medical report is delivered to the employer, a list of positions that it wants the employer to consider as possible accommodation positions. The employer will consider such positions for accommodation and advise the union in writing as to its views with respect to each position within 15 days of receiving the list. If the parties identify position(s) that may be suitable, they shall engage in dialogue with respect to such positions, and particularly whether such other positions provide a more appropriate accommodation than the Unit 5 position. 6 ? The grievor shall continue to work in Unit 5 during the assessment ordered above. However, the parties will engage in an immediate evaluation of the appropriateness of the physical layout of the Unit 5 assignment in light of the grievor's current restrictions. 7 ? The grievor is to receive damages of $1000.00 to be paid immediately. 8 ? I remain seised to deal with all issues arising from the implementation of this decision and with respect to any disputes arising with respect to the ongoing assessment of the grievor's accommodation needs. th Dated at Toronto, this 26 day of March, 2008. Barry Stephens, Vice-Chair