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HomeMy WebLinkAbout1982-0105.Cameron.82-07-26IN THE MATTER OF AN ARBITRATION Under THE CROWN EHPLOYEES COLLECTIVE BARGAINISG ACT Before TEE GRIEVANCE.SETTLEklENT BCARD Between: Before: R.L. Verity, Q.C. Vice Chairman J. M&anus 3Iember P. Camp Member For the Griever: N. Luczay Grievance/Classification Officer Ontario Public Service Employees Union For the Employer: J.F. Benedict Xanager, Staff Relations. Xinistry of Correctional Services Hearing: OPSEU (Kenneth Cameron) Griever - And - The Crown in Right of Ontario (ilinistry of Correctional Services) Empioyer The Grievor, Kenneth Cameron, has been with the Ministry since September of 1974, and is presently classified as a Correctional Officer 2 working at the Elgin-Middlesex Detention Centre in London. The Grievance, although somewhat vaguely worded, is dated October 27th, 1981, and in essence alleges unfair-*treatment in the Grievor’s re-assignment to a different work area as a result of a medical assessment in July of 1981. The relief asked .is also unique in the request for damages for 8 days pay while the Grievor was on scheduled days off. The sole evidence before the Board was the testimon! of the Grievor. The employer chose to introduce no evidence. In March of 1979, the Grievor sustained a~ back injury in a scuffle with an inmate at the Elgin-Middlesex Detention Centre. As a result of that injury he was off work and on Workmen’s Compensation benefits for a six week period. In Nay of 1979, he returned to his regular duties as a Correctional Officer 2 until September when there was a re-occurance of the back injury. He was again off work for approximately two months from September to November of 1979. The Grievor underwent a myelogram procedure and embarked on a course of physiotherapy. From January of 1980 to February of 1981, he was re-assigned duties to a different work area, namely the module control area - 3 - with no loss of salary. The module area is the control centre of the institution where his responsibilities would include operating the electronic console for opening and closing doors, answering all telephone calls, operating a two-way radio system and having custody of the institutional staff keys. In 1980, the Grievor’s back continued to be troublesome and on three separate occasions, namely in February, June and July he was off work for short periods of time. The Grievor’s mid-back pain continued in early 1981 and the decision was made, and the procedure carried out to undergo an operation in February for the removal of two discs from the Grievor’s lower back. The Grievor was off work from the time~of the operation until June lOth, 1981. He returned to work in his regular duties as a C.O. 2 in June based on the medical opinion of the Grievor’s orthopedic surgeon, Dr. S. I. Bailey. Dr. Bailey’s letter of May llth, 1981 (Exhibit ,9) stated as follows: “TO WHOM IT MAY CONCERN: Re: Ken Cameron The above mentioned patient was examined by me April 7th and I felt that he could return to work as of June 11, 1951.’ However, he will have to curtail some of his activities, part- icularly that of prolonged sitting and any type of repetitive lifting and.bending.” Mr. E. J. Anthony, the Regional Personnel .\dministrator for the Ministry wrote to the Grievor on Nay ?9th, 1951 (Exhibit 10) which said letter reads in part as follows: 4- “Regarding the medical certificate that you presented to Mr. O’Brien it is not conclusive that you will be able to fulfil all the duties of your position as a Correctional Officer. Therefore, it has been decided that you will be allowed to return to work on June 11, 1981 but you will be restricted to assignment to the module until a medical examination can be arranged at the Employee Health Centre. You will recall that a previous examination resulted in a recommendation that you avoid contact jqith inmates. Following this most recent surgery it will be necessary to re-assess your condition in light of the requirements of a Correctional Officer 2 .” At the request of management, the Grievor did undergo a medical examination at the Employee Health Service Branch in Toronto on July 24th, 1981. The Ministry’s physician, Dr. D’Silva prepared a medical report (Exhibit 4) as follows: “July 30, MEMORANDUM TO : Mr. V. J. Crew Director Human Resources Management Ministry of Correctional Services 2001 ‘Eglinton Ave. ? E., Scarborough, Ontarlo M 1 L 4 P 1 Re : Mr. Kenneth Cameron Report of Medical Assessment: July 24, 1951. 1981 Referral Authority: Article 51.9 of the Agreement between Management Board of Cabinet and the Ontario Public Service Employees Union respecting Employees Benefits. - 5 - Present Employment Status: Employed. Background Information: Mr. Cameron injured his back at work in March, 1979, after being assaulted by an inmate. In February, 1981, he underwent back surgery. Since June 11, he has been working as a Correctional Officer 2. Mr. Cameron was sent for assessment as to his ability to perform the duties of a Correctional Officer. Medical Status : Mr. Cameron continues to have back pain since the operation, especially with repetitive bending, lifting, or sitting for long periods of time. Also, he continues to wear a corset. He states he is able to walk with minimal pain. Medical examination revealed.marked spasm and pain on percussion of lower back. He had limited forward flexion to just below the knees and limited extension. Also, he had limitation of straight leg raising. There were n,o neurological findings of note. Recommendations & Conclusions : In my opinion, Mr. Cameron still has significant back pain. Based on my examination and fromthe fact that he has been working since June 11, 1981, he is able to work in-so-far as walking and standing are concerned. However , I have concerns regarding his ability to respond to sudden emergencies to protect himself. Therefore, he should not be in a position which could resu1.t in physical contact with inmates or require active response to a sudden emergency. It is only five months since his operation and since there is a likelihood of improvement, no prognosis can be given at this time. I am contacting his orthopaedic surgeon regarding changes anticipated in this man’s future prognosis. If significant information is received I will be in contact with your Ministry. This case could be reassessed on the request of your Ministry, especially if Mr. Cameron’s physical condition appears to change significantly. ‘L. D’Silva’ L. D’Silva, M.D., Physician LD: ce” Following receipt of Dr. D’Silva’s medical report, a meeting was held with the Grievor on .4ugust ?Sth, and the decision was made and confirmed subsequently by a letter, from E. J. Anthony to the Grievor (Exhibit 11) to “reassign (the Grievorj to a position not involving direct inmate contact (ie. control module) for a period not to exceed six months”. The Griever advised Ministry officials at the August 25th meeting that he “would have problems” if he were re-assigned to the control module. He complained that the console operation in the module involved bending and stretching, and would cause further back irritation. The Grievor also complained that bending over retrieving keys from a cabinet near the control console would create the same type of problems. In any event, the Grievor was re-assigned to the control module from August ~27th until November lOth, 1981. On September 4th, the Grievor filed a first Grievance claiming that Dr. D’Silva’s medical report was “misleading” and requested the remedy of a further medical examination to be com- pleted by a doctor agreeable to all parties. On September 8th, the Griever’s orthopedic surgeon Dr. Bailey prepared a report which was given to management (Exhibit 5) which reads in part: a, i. - 7 - “His major problem is his inability to find appropriate modified duties. He has worked out at the correctional institution, and has been taken off the ‘floor’ because of the vulnerability of the back to physical injury. He has been placed in a module (control module) and finds that the repetitive bending and prolonged positioning of. his back in a forward flexed position, actually is leading to more discomfort in the back than he had experienced in other areas of work.. . . . . . . Considering all, I would think that certainly the most ideal area for work would~ be on the floo,r at the correctional institution, and if the,danger of physical injury from inmates could be removed or minimized, this would be most beneficial for long term control of his back disorder.” On November lOth, a meeting was held with the Grievor in the presence of Union and management representatives. Three options were considered by the Parties: (1) That the Grievor be assigned to night shift work for six months, and then re-assessed by the Employee Health Centre; (2) That the Grievor could apply for long term income protection; (3) That the Grievor be examined by an independent physician to determine the actual extent of his disability. As a r’esult of that meeting an agreement was made between the Parties that the only acceptable option favoured by the Grievor was to select the third option of a further indepen~dent medical examination. In the meantime it was agreed by the Parties that’ the The medical assessment of Dr. Phillips resolves the first grievance dated September 4th, 1981 and the Grievor forthwith resumed his regular duties in December. The instant grievance results from .the Grievor’s confinement to bed rest by his family doctor during eight scheduled days off, namely October 2nd to 5th inclusive and October 23rd to 26th inclusive. The Grievor claims that bed rest would ,not have been necessary had he not been re-assigned to the control module in August of 1981. -s- Grievor would cease work and be placed on lvorkmen’s Compensation benefits until the medical assessment was completed. Subsequently, the Grievor was examined on December 22nd by Dr. T. W. Phillips an orthopedic surgeon. The following comments are excerpts from Dr. Phillips’ report: “IMPRESSION: Th.is man does appear to have made a good recovery from his surgery and has no significant neurological deficit. RECOMMENDATION: I would feel that he could go back to full activities~such as his normal job that he had before based on his finding and symptomatology today. There is no guarantee that he might not have some back discomfort again in the future as this is an impossible prediction to make in any patient. However, I think it would be reasonable for him to try going back to his original job especially in view of the fact that he is keen to do so but I leave the decision up to his employer.” The Union argued that the medical assessment in Jul) by the Ministry general practitioner was unnecessary and that the subsequent re-assignment of the Grievor to the control module was unfair. On behalf of the Grievor, Mr. Luczay alleged that the employer was acting unreasonably in the face of conflicting medical opinions and that no proper reason was advanced by manage- ment for the re-assignment of the grievor to the control module. The Union alleged a violation of Article 51.9 of the Parties’ Collective Agreement and an unfair ‘re-assignment .of the Grievor pursuant to Section 18 of the Crown Employees Collective Bargaining Act. Mr. Luczay was unable to cite any arbitral authority for granting the Grievor’s requested remedy. On behalf of the Employer, Mr. Benedict argued that there was no violation of the Collective Agreement, .and further alleged that there was no provision in the Collective Agreement to provide compensation to employees who are ill on scheduled days off. Further, it was argued that’the employer had acted reasonably in the circumstances. Article 51.9 of the Collective .Agreement reads as folloiss: “51.9 Where, for reasons of health, an empl~oyee is frequently absent or unable to perform his duties, the Employer mav require him to submit to a medical examination at the expense of the Employer.” Section 18 of the Crown Employees Collective Bargaining Act is the traditional management rights clause giving the employer the exclusive right to employ, appoint, compliment, assign, discipline dismiss, etc. In the circumstances , the Board has great admiration for the Grievor who has demonstrated real courage in his recovery from a painful back injury in 1979, and his subsequent surgery in 1981. However, we are unable to uphold this Grievance, as we cannot find that there has been any violation .by the Ministry of the relevant ,:~i provisions of either the Collective Agreement or the Statute. The remedy requested by the Grievor, although novel, is clearly without ,arbitral precedent. We are of the opinion that the employer acted reasonably and with compassion to the Grievor’s predicament. At no time was the Grievor prevented from working, and at no time was the Grievor forced to accept any reduction of salary. Dr. Bailey’s letter of May 22nd, 1981 prior to the Grievor’s return to work after surgery, did indicate that the Grievor would be forced to curtail some activities. The evidence is clear that the Grievor was not symptom free when he returned to work on June lOth, and for that matter the evidence is quite to the contrary. The employer had every right to insist upon a further medical assessment by a Ministry physician to determine the Grievor’s ability to perform his duties as a Correctional Officer 2. - 11 - In our view, management was justified in re-assigning the Grievor as a result of Dr. D’Silva’s medical report. Dr. D’Silva expressed concern about the Griever’s ability to respond to sudden emergencies or to protect himself. The Griever. in his own evidence, admitted the possibility of emergency situations occurring on the floor. In the circumstances, management has a duty to be concerned about the safety of the Grievor and the safety of all fellow employees working with the Grievor. If management can be faulted in any respect, it is only in the area of the timing of its response to conflicting medical opinions. However, in reviewing the total health history of the Grievor, it is our view that the employer has been fair and reasonable in the circumstances. Accordingly, this Grievance shall be dismissed. DATED at Brantford, Ontario this 26th day of July, 1982. R.L. Verity, Q.~C. Vice Chairman s J. XcManus Member P. camp :Iember