HomeMy WebLinkAbout2012-0568.Morin.20-03-10 Decision
Crown 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#2012-0568
UNION# 2012-0338-0003
IN THE MATTER OF AN ARBITRATION
Under
THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT
Before
THE GRIEVANCE SETTLEMENT BOARD
BETWEEN
Ontario Public Service Employees Union
(Morin) Union
- and -
The Crown in Right of Ontario
(Ministry of Government and Consumer Services) Employer
BEFORE Michael Lynk Arbitrator
FOR THE UNION Mae J. Nam
Ryder Wright Blair & Holmes LLP
Counsel
FOR THE EMPLOYER Thomas Ayers
Treasury Board Secretariat
Legal Services Branch
Counsel
HEARING March 6, 2020
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Decision
[1] The Parties have previously agreed to bifurcate the hearing, such that:
a. the first portion of the hearing will focus on the issues of the Employer
presently able to accommodate the Grievor and whether the Employer
has reached the point of undue hardship; and
b. the Grievor’s allegations of historic harassment or failure to
accommodate will form the second phase of the hearing, as well as
any remaining issues related to damages or outstanding wages, if
applicable.
[2] The Employer and the Union agree that they each are entitled to preserve their
rights to advance preliminary arguments with respect to waiver, timeliness and
prejudice with respect to the second phase of the hearing.
[3] In light of the above, the directions to the Parties that are contained in this
order apply to the first phrase of the hearing. The Parties agree that these
issues may need to be revisited when the litigation of the second phase of the
hearing commences.
[4] Having regard to the medical information at issue in the first phase of the
hearing, I hereby order the following conditions to be placed on the Grievor’s
medical documents provided to counsel to the Employer:
a. The documents or material will only be released to Employer counsel
for this grievance proceeding and two advisors (one Employee
Relations Advisor and one instructing client), and a transcriber, if
necessary.
b. The documents or material produced must be maintained as
confidential.
c. The documents or material produced must not be disclosed to any
person or party not a participant in these proceedings.
d. The documents or material produced can only be used for purposes
relating to this proceeding and not for any other purpose or
proceeding.
e. Documents or material produced shall only be photocopied for
purposes relating to this proceeding.
[5] Should a need arise for counsel to disclose the documents to a potential
witness, for the purposes of getting instructions, or in order to get an expert
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medical opinion, or for any other reason, the Employer may seek the Grievor’s
consent and, if denied, an order can be sought from the Board and I will make
a determination if such disclosure is appropriate.
[6] Having heard the submissions of the Parties, I hereby order the Parties to
provide full additional particulars with respect to:
a. Any steps taken by the Employer to conclude that the CSR3 position
could not be modified to be done remotely;
b. Any steps taken by the Employer to accommodate the Grievor through
the Health Reassignment Program;
c. Any consideration by the Employer of positions that could be modified
to accommodate the Grievor through a telework arrangement;
d. Any steps taken by the Employer to bundle or otherwise modify duties
to accommodate the Grievor through a telework arrangement; and
e. Any steps taken by the Grievor and/or Union to participate in the
Health Reassignment Program.
[7] Having heard the submissions of the Parties, I hereby order the Employer to
produce the following documents and material, to the extent it exists and has
not already been produced:
a. All documentation and communication related to the accommodation of
the Grievor to the CSR3 position, including any and all documentation
related to the Employer’s conclusion that the CSR3 position could not
be modified to be done remotely;
b. All documentation and communications related to the Employer’s
efforts to accommodate the Grievor, including but not limited all
positions reviewed or considered by management and any and all
documentation related to positions and duties considered;
c. All documentation related to efforts to accommodate the Grievor
through the Health Reassignment Program;
d. All Employer policies and guidelines on accommodation in the OPS;
e. All documentation the Employer intends to rely upon not previously
produced.
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[8] I hereby order the Union to produce the following documents and material, to
the extent it exists and has not already been produced:
a. All documentation related to efforts to accommodate the Grievor
through the Health Reassignment Program; and
b. All documentation the Union intends to rely upon not previously
produced.
[9] All particulars and production ordered in paragraphs 6-8 shall be produced by
March 20, 2020. In light of my direction to the Parties on the last hearing day
and the need to avoid any further delay in this matter, any Party seeking to
introduce any particulars and production not produced by end of day on March
20, 2020 in the first phase of the hearing must seek permission of the Board
and provide an explanation as to why the deadline was not met.
[10] I order the Employer to present its evidence first in this first phase of the
hearing. The Employer must be prepared to proceed with its first witness on
the next hearing date and must identify its witness to the Union by March 20,
2020. If the Employer intends to call one or multiple additional witnesses on
the second hearing date, it shall make best efforts to advise the Union of the
names of the witnesses no later than one week before the hearing
commences.
[11] I understand and acknowledge that the Union has reserved its right to seek
orders requiring the Employer to produce:
a. documentation and materials related to Telework in the OPS, and
b. a listing of positions that have been determined to be
remote/telework throughout the OPS.
Dated at Toronto, Ontario this 10th day of March, 2020.
“Michael Lynk”
Michael Lynk, Arbitrator