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Home My WebLink About2022-12067.Lim. 23-11-29 Decision Crown 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# 2022-12067 UNION# 2023-0135-0001 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN Ontario Public Service Employees Union (Lim) Union - and - The Crown in Right of Ontario (Ministry of the Solicitor General) Employer BEFORE Gail Misra Arbitrator FOR THE UNION Richard Dionne Ontario Public Service Employees Union Grievance Officer FOR THE EMPLOYER Jennifer Charlton Treasury Board Secretariat Employee Relations Advisor HEARING November 23, 2023 -2 - Decision [1] The Employer and the Union at the South West Detention Centre agreed to participate in mediation-arbitration in accordance with the Local Mediation- Arbitration Protocol that has been negotiated by the parties. Should mediation not result in resolution of a grievance, pursuant to the Protocol, they have agreed to a mediation-arbitration process by which each party provides the Arbitrator with their submissions setting out their respective facts and the authorities they may be relying upon. This decision is issued in accordance with the Protocol and with Article 22.16 of the collective agreement, so that it is without precedent or prejudice to any other matters between the parties, and is issued without detailed written reasons. [2] Cynthia Lim is a Correctional Officer (“CO”) at the South West Detention Centre (“SWDC”) in Windsor, and has worked there since October 2004. On February 21, 2023 Ms. Lim filed a grievance claiming that the Employer had breached various terms of the collective agreement and legislation when it failed to accommodate her after she had provided documentation from her physician. The grievance claims that instead, the Employer put her on an unpaid leave for approximately four months. By way of remedy the grievor seeks to be reimbursed for all lost time and benefits from the date the Employer put her on the unpaid leave. [3] The grievor was off work from February to August 2022 due to health-related issues. On September 7, 2022, pursuant to her physician’s recommendation, she returned to work on a work hardening program with various restrictions. That day she was scheduled to work a four hour shift. About two hours into the shift Ms. Lim was assigned to conduct a constant watch on an inmate who was in his cell in the Segregation area while the regular staff was on break. Twenty minutes into the watch the grievor was so overcome with anxiety that she had to leave work and go home. [4] Constant watch required the grievor to sit in a chair, work alone, and monitor the inmate from an area that was away from the cell. According to the Employer this was a duty that was within the restrictions and limitations the grievor’s physician had provided to the Employer in August 2022. [5] On September 12, 2022 the grievor provided the Employer with a letter from her physician indicating that Ms. Lim was unfit for work from September 7 to 18, 2022 due to medical reasons. The letter also indicated that the grievor was unfit to work in “direct supervision”, “indirect supervision”, the Segregation area, and should not be exposed to high stress work areas. The restrictions were to last until November 30, 2022. [6] Upon receipt of the letter the Employer asked the grievor to have her physician complete a Health Information Questionnaire which required responses to a number of specific questions. The Employer needed more information as the work that had led to the grievor going off work again had been within the doctor’s -3 - mandated medical restrictions for this employee. It advised the physician that on her first day back at work the grievor had sat in a large group in the lunchroom with no apparent difficulty. However, after leaving on September 7th, Ms. Lim had not returned to work for her assigned shifts in the gradual return to work schedule. In light of the physician’s letter of September 12, 2022 outlining what jobs the grievor could not do, the Employer clarified that it had the right to determine what posts Ms. Lim could be accommodated in based on specific medical restrictions and limitations that a physician provides. [7] Based on a medical assessment conducted with the grievor on September 22, 2022, Dr. Voltic advised the Employer that the grievor could not return to work until October 10, 2022. She indicated that since her last assessment of Ms. Lim, the grievor’s medical condition had deteriorated and she had been unable to perform her CO duties since September 7th. Dr. Voltic outlined the severe restrictions on the grievor’s ability to work in relation to a number of areas for about three months. It is not necessary to outline in detail here the many restrictions and limitations the doctor outlined, but they were quite extensive. Overall, the doctor indicated that the grievor was not expected to return to her full duties as a CO for three to six months. However, she did not recommend that the grievor seek long term disability benefits as she was of the view that Ms. Lim should return work. [8] Five days later, on September 27, 2022 the Employer sent the grievor a letter advising her that it had received her doctor’s responses in the Health Information Questionnaire; that it supported the doctor’s recommendations, and that it was therefore approving Ms. Lim for an unpaid sick leave for three months until December 22, 2022. It advised the grievor that if she had an updated medical to return to work prior to that date, she should provide it to the Employer. [9] Ultimately the grievor remained off work until January 23, 2023 as in a January 12, 2023 letter her doctor indicated that Ms. Lim was unfit to return to work till January 23rd, when she could return to her CO job without restrictions. [10] As already noted, the grievor filed her grievance about this matter on February 21, 2023. [11] The Union asserts that the grievor should have been accommodated from October 10, 2022 when her physician said she could return with restrictions. It argues that there is no evidence that the Employer made any attempts to accommodate the grievor, and instead, it simply put Ms. Lim on an unpaid sick leave for three months thus depriving the grievor of any form of income for that period. [12] The Employer asserts that the grievance before me is untimely as it was not filed until February 21, 2023 even though the grievor had received the letter on or about September 27, 2022. The Union argues that the grievor was suffering from poor mental health at the time, and was very affected by the Employer’s action in putting her on an unpaid leave. It was not until her return to work in late January -4 - 2023, and her contact with the Union at that time, that she was able to file the grievance. [13] In the context of this case, and given the medical evidence before me, I am satisfied that the grievor was unable to file a grievance in the period following her receipt of the Employer’s letter in late September 2022. The grievance was filed within 30 days of the grievor’s return to work on January 23, 2023. Ultimately there is little prejudice to the Employer of the late filing of the grievance because at the hearing the Union only sought as remedy for the grievance lost wages for the period of October 10 to December 22, 2022, during which the Employer had put Ms. Lim on an unpaid leave of absence. It did not seek compensation for the entirety of the period that the grievor was without wages (October 10, 2022 to January 22, 2023). [14] Having considered the evidence before me and the submissions of the parties, it appears that the Employer did not fulfill its duty to try to accommodate the grievor to the point of undue hardship. To the extent that it may have considered ways in which it could have accommodated her restrictions, which I accept were quite onerous, it did not advise her of any such efforts, or that it was in fact unable to accommodate her restrictions and limitations. Instead it simply advised her that she was being put off work on an unpaid leave of absence for three months. [15] The grievance is upheld and I direct the Employer to pay to the grievor all lost wages for the period of October 10, 2022 to December 22, 2022. [16] I will remain seized in the event that there are any issues arising out of the implementation of this decision. Dated at Toronto, Ontario this 29th day of November 2023. “Gail Misra” Gail Misra, Arbitrator