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HomeMy WebLinkAbout2019-0852.Grievor.22-01-27 DecisionCrown Employees Grievance Settlement Board Suite 600 180 Dundas St. West Toronto, Ontario M5G 1Z8 Tel. (416) 326-1388 Commission de règlement des griefs des employés de la Couronne Bureau 600 180, rue Dundas Ouest Toronto (Ontario) M5G 1Z8 Tél. : (416) 326-1388 GSB# 2019-0852 UNION# 2019-0263-0003 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN Ontario Public Service Employees Union (Grievor) Union - and - The Crown in Right of Ontario (Ministry of the Solicitor General) Employer BEFORE David Williamson Arbitrator FOR THE UNION Anjana Kashyap Ontario Public Service Employees Union Grievance Officer FOR THE EMPLOYER Joohyung Lee Treasury Board Secretariat Counsel HEARING January 12, 2022 (by video conference) -2- DECISION [1] This decision arises out of a request made by the union to consolidate a grievance dated November 9, 2021 with a grievance filed by the same grievor on May 14, 2019 that is already before this Board and set to be heard at arbitration. The employer opposes this motion to consolidate the two grievances. [2] The factual context for evaluating this consolidation request was provided by the two grievances and by statements of particulars prepared by and exchanged between the parties. [3] The first of these grievances was filed May 14, 2019, at which time the grievor held a position as a Probation and Parole Officer (PPO2) based in Mississauga, but working on a temporary assignment as Sergeant at the Barrie office. The grievance states: I grieve that my rights and entitlements under the Collective Agreement have been violated including but not limited to Articles 2, 3, and 9 and any other legislation/policies. The employer has not provided me with a proper accommodation. The employer has not adequately addressed concerns that I have raised within the workplace which have continued to contribute to a toxic and unfair workplace. The stated settlement desired is: To be made whole, to work in a toxic free and fair environment which supports my medical condition and anything else deemed fair by an arbitrator. [4] In its statement of particulars with respect to the first grievance, the Union sets out that the remedy sought will be to have the grievor placed into a permanent full-time PPO position at a Simcoe/Muskoka location, an award of general damages, and an acknowledgement from the employer that the grievor experienced discrimination in the workplace and was not adequately accommodated. [5] The particulars provided in connection with this first grievance allege that from 2014 there has been discrimination based on race in the Mississauga office that gave rise to a toxic workplace, and that to work in that toxic environment in Mississauga has brought on anxiety with effects on the grievor’s mental health. The particulars show that she directly reported to Ms. C., the Area Manager, and that her accommodation specialist was Ms. R. The grievor’s work history discloses that from 2013 she had taken up a number of temporary positions away from her home base of Mississauga. In November 2018, during a temporary assignment at the Central North Corrections Centre, the grievor took a medical leave of absence. On January 21, 2019, while -3- still on this sick leave, the grievor was notified that her temporary assignment was expiring due to her lack of attendance. She was then asked to return to her home office in Mississauga on February 11, 2019. [6] In a conversation with Ms. C. at the end of January 2019, the grievor expressed her concerns about returning to work in the Mississauga office because of both the toxic work environment as well as the commute on a multi-lane highway from her home in Barrie to Mississauga. There is no reference in the particulars that at any time prior to this conversation with Ms. C. that the grievor had any issues associated with highway driving. From February 28, 2019 the grievor worked in the Mississauga office and then from April 2019 obtained a temporary position in Keswick. She filed her first grievance on May 14, 2019. This grievance explicitly references there being a toxic work environment in the Mississauga workplace, but makes no reference to highway driving issues. From September 2019 Keswick became the grievor’s permanent work location as the result of a three way job trade. [7] On November 9, 2021, the grievor filed the second grievance some two and a half years after the first. At this time she was working as a Probation and Parole Officer (PPO2) in Keswick. This grievance states: I grieve that my rights and entitlements under the Collective Agreement have been violated including but not limited to Articles 2 (Management Rights), 3 (No Discrimination), and 9 (Health and Safety), and any other relevant legislation/policies that may apply. The employer has not provided me with a proper accommodation and has violated the collective agreement by minimizing my medical health concerns. I have provided documentation of my medical health and was not given any accommodation. The stated remedy desired is: To be made whole, to work in a toxic free and fair environment which supports my medical condition and anything else deemed fair by an arbitrator. [8] In relation to this second grievance, the particulars show that the grievor’s physician had sought medical accommodation for her in September 2021 to work from home three days a week, with two days in the office, because of her driving anxiety and a lengthy commute. This request for accommodation was not granted by the employer and gave rise to this second grievance dated November 9, 2021. Later in November the grievor’s physician, Dr. L., notified the employer that the grievor had been evaluated by a specialist and diagnosed with a situational reaction with associated anxiety. The particulars show that the issue in focus in this grievance is that of accommodating the grievor’s driving anxiety and making a lengthy commute to work. On December 15, 2021 the employer denied the November 9, 2021 grievance. The particulars disclose that the grievor, in her permanent position at Keswick, -4- reported directly to Ms. T., the Area Manager, and that Ms. W. was the Disability Accommodation Specialist who assessed her situation. In its particulars the union has notified the employer that at the arbitration of this grievance it will be seeking as remedy, in part, that the grievor be placed into a permanent full-time Probation and Parole position in Barrie. [9] It is the submission of the union that the two grievances ought to be consolidated, as the second grievance flows from the first and is based on the same issue and facts, have the same grievor, and seek the same remedy. It is the submission of the union that while the grievances filed relate to two different geographical locations, there is one underlying condition impacting the grievor that gave rise to the grievances. The union submits that consolidation will also result in the best and most efficient use of resources in addressing the grievances. [10] The union relies upon the following Board decisions: OPSEU (Auguste) & Ministry of Government and Consumer Services, (2019), Dissanayake, GSB #2017-2268; OPSEU (Scott) & Ministry of Community Safety and Correctional Services, (2004) Mikus, GSB #2002-3166; OPSEU (Kennett) & Ministry of Community Safety and Correctional Services, (2014), Misra, GSB #2013-2620; OPSEU (Union) & Ministry of Natural Resources and Forestry, (2019), Petryshen, GSB #2018-1629; and OPSEU (Hunt et al) & Ministry of the Attorney General, (2004), Abramsky, GSB #2001-0534. [11] The employer submits that the two grievances before the Board ought not to be consolidated and heard together in that the events associated with the two grievances are spatially separated by a period of over two years, relate to different work places, and with the grievor reporting to different management personnel. It is submitted by the employer that for over two years the grievor had no difficulty working in the Keswick position, and that this time break severs any connective link between the events underlying the two grievances. In addition, the accommodation specialists associated with each of the grievances are different, and the employer asserts that the medical information existing for 2021 in Keswick cannot be seen to retroactively apply or pertain to the grievor’s work situation in 2019 for Mississauga. Nor, it submits, can the information contained in the 2021 report of the medical specialist apply to other than the 2021 situation. As such, the employer submits that with different circumstances underlying the two grievances there are few, if any, efficiencies to be obtained from consolidation and that the matter should go forward by having the two grievances heard separately. [12] The employer relies upon the following Board decisions in support of its submission: OPSEU (Samsone) & Ministry of Community Safety and Correctional Services, -5- (2006), Harris, GSB #2004-2855; and OPSEU (McClelland/Ward) & Ministry of Community Safety and Correctional Services, (2013), Briggs, GSB #2006-2524. [13] The GSB’s Rules of Procedure provide as follows: 3. Consolidation of Cases Where two or more proceedings are pending before the GSB and it appears to the GSB that, (a) they have a question of law or fact in common; (b) the relief claimed in them arises out of the same transaction or occurrence or series of transactions or occurrences; or (c) for any other reason an order ought to be made under this rule, the GSB on such terms as it considers advisable, may abridge the time for placing a grievance on the hearing list, and may order that: (d) the proceedings be consolidated, or heard at the same time or one immediately after the other; and/or (e) any of the proceedings be stayed until after the determination of any other of them. [14] Additionally, several of the referenced GSB decisions have noted the underlying beneficial purpose of consolidation is to enable outcomes such as the efficient use of the Board’s resources, the orderly and efficient disposition of grievances, and the avoidance of conflicting findings of fact, and that these are pertinent considerations when assessing whether one or more grievances ought to be consolidated. [15] The matter to be determined here in the instant matter is whether the grievance dated November 9, 2021 ought to be consolidated with the grievance put forward by the same grievor on May 14, 2019 that is presently before the Board. In my view the parameters of the two grievances the union seeks to consolidate do not match up to meet the test set out in the above rule. The grievances are spatially separated in time and not part of a continuum, having been made some two and a half years apart and where the grievor is working in different locations and without having had any issues of the type referenced in the second grievance in the intervening time period. This includes the time frame from April 2019 to July 2020 when the grievor commuted to her work in Keswick from her home in Barrie without any stated issues. [16] Second, the issues raised in the two grievances are not identical. The particulars associated with the 2021 grievance focus on the stress experienced by the grievor -6- of driving the highway to work in Keswick, and for which there are related medical reports. By way of contrast the complaint specified in the 2019 grievance is that of a toxic work environment. While the stress of highway driving was also referenced by the grievor when she spoke with her manager in early 2019, there is no medical documentation of such for that time period. Thus, while there is medical documentation that pertains to the circumstances of the 2021 grievance, there is none referenced that would provide continuity with the grievor’s asserted condition from the time of the much earlier 2019 grievance. [17] Further, with there being different managers and different accommodation specialists involved in addressing the matters that gave rise to each of the two grievances, it is not apparent that a consolidation of the grievances would bring about an improved and more efficient use of the Board’s resources. [18] Accordingly, the union’s request to have the November 9, 2021 grievance consolidated with the May 14, 2019 grievance presently before the Board is denied. Dated at Toronto, Ontario this 27th day of January 2022. “David Williamson” ______________________ David Williamson, Arbitrator