GSB#2083/99, 0864/00, 0866/00
UNION#00E053, 00A468, 00A470
IN THE MATTER OF AN ARBITRATION
Under
THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT
Before
THE GRIEVANCE SETTLEMENT BOARD
BETWEEN
Ontario Public Service Employees Union
(SPEIRAN)
Grievor
-and-
The Crown in Right of Ontario
(Ministry of Health and Long-Term Care)
Employer
BEFORE Deborah J.D. Leighton Vice-Chair
FOR THE GRIEVOR Peggy Smith, Counsel,
Eliot, Smith
Barristers and Solicitors
FOR THE EMPLOYER Andrew Baker, Counsel
Legal Services Branch
Management Board Secretariat
HEARING May 18, 2001.
In June 1998 Robert Speiran grieved that the Ministry of Health (the employer) was discriminating against him because of his disability (a prior workplace injury) and was failing to accommodate him. By June 1998 the Ministry of Health had already spent months trying to identify a suitable job for the grievor. In a memo dated June 29th, 1998, Ms. Brenda McCauley, then Senior Manager, Regional Operations recorded the union’s frustrations that Management Board Secretariat had not agreed to extend the search for a suitable job outside the MOH. Management also registered its frustration and, despite further efforts, a suitable job was not identified.
Mr. Speiran’s grievances came on for hearing on February 14 and 15, 2001. Union counsel, Ms. Smith, agreed to adjourn the second day of hearing and to proceed to mediation on February 14 on the understanding that the employer would bring a list of possible jobs, including jobs outside the Ministry. The employer was not ready to proceed with the February 14 mediation, and the morning was spent waiting for a list of possible jobs within the Ministry only. There had been no attempt by the employer to identify jobs outside the Ministry.
The day was adjourned and a further hearing date was set for May 18, 2001. Counsel for the employer, Mr. Baker, conceded that the employer had a duty to accommodate Mr. Speiran.
The union’s position is that February 14 was adjourned on the understanding that the employer undertook to identify jobs both inside and outside the Ministry. The employer’s position is that there is confusion between the parties as to what was undertaken by the Ministry.
In a letter dated February 15 2001 counsel for the union confirmed that the employer had conceded its duty to accommodate the grievor. She stated the position of the union that by failing to search beyond the Ministry for a suitable job before the grievance hearing the employer had breached its duty to accommodate the grievor. She noted that the search for a suitable position should include positions up to OAG 13. She wrote again on February 22, March 2, March 6, March 12, March 19, March 27, and April 9 with job postings both within and outside MOH that the grievor had identified as suitable matches. On April 2 Ms. Smith wrote to Mr. Baker noting that there had been no response to her letters and asking him to confirm that the employer had entered the grievor’s employee portfolio, and was searching for a suitable position throughout the Ontario Public Service (OPS).
There was no response from Mr. Baker until April 20, when he sent a list of 12 positions within the MOH identified as possibly suitable by the employer. Mr. Baker also asked for “detailed written responses from Mr. Speiran’s doctor regarding any approval or disapproval of each of the positions." He asked for the responses within two weeks. He did not respond to any of the union’s above noted correspondence in that letter.
Ms. Smith responded to Mr. Baker’s April 20 letter or May 1 by noting that one of the positions identified on the list as suitable was that of customer service clerk. This was a position in which the grievor had not been successfully accommodated. She asked if the job had changed, and if it might be possible now for the grievor to do the customer service clerk position. She also asked once again whether or not the search had been made beyond MOH for suitable positions for the grievor. Counsel also noted that every job on the identified list was within MOH. She stated that the customer service clerk job was the only job identified within the appropriate salary range.
In a letter dated May 11 counsel for the union noted once again that the customer service clerk position had not been suitable in the past. Thus without any reason to think it had changed, it was rejected by the grievor. Ms. Smith also responded to a request by employer counsel made in a telephone conversation for updated medical information on the grievor’s condition. She stated in her letter of May 11th that the grievor’s medical condition had not changed since the last medical information provided to the employer.
Ms. Smith wrote again to Mr. Baker on May 15 to notify the employer counsel that she would be bringing a motion on the May 18 asking for costs and other remedies because of the employer's abuse of process in not extending the search for suitable positions for the grievor beyond MOH. Mr. Baker responded on May 17 stating, inter alia, that the position of the employer is that the search for a position within the Ministry must be exhausted before the search would be extended to the OPS. He also stated that it was up to Mr. Speiran’s doctor to assess whether the jobs listed would accommodate his disability.
At the hearing on May 18 counsel for the union argued that the board should order costs against the employer for the May 18 hearing day. Counsel also sought a board order requiring the Ministry to extend the search for a suitable position for the grievor to the entire OPS. She also sought the declaration that the Ministry has failed to date to search for a position properly. Finally she sought an order for general damages of $10,000 for the grievor.
Counsel argued that it was in abuse of process not to comply with an undertaking. She argued that she had agreed to mediation on February 14 and the adjournment of February 15, on the understanding that the employer was going to search for suitable positions for the grievor not only within the Ministry of Health but throughout the OPS. Those hearing days were lost when the employer arrived without identified jobs outside the Ministry, or even within the Ministry. Counsel argued that there was a clear undertaking on February 14 by the employer to search for a suitable position throughout the OPS. The employer did not conduct a search for jobs beyond MOH and therefore breached its undertaking. Counsel argued in conclusion that every time the parties meet it is not appropriate to begin with an argument about the scope of the search for a position for the grievor.
Counsel argued that this board has the jurisdiction to decide its own process under section 48.1 of the Public Service Act. Counsel cited OPSEU (Siatras) and the Crown in Right of Ontario (Ministry of Health) Ambulance Service (1992) 104/92 (Kaplan) to support her argument that this board has the authority to order costs.
Counsel for the employer argued that an award of general damages at this stage of the proceedings would be inappropriate. He argued that there was no evidence that the grievor had suffered any pain and suffering. Counsel argued further that the employer had agreed to go forward with the job search for the grievor in good faith. It had searched for jobs within the Ministry and it had gone forward with the search for positions throughout the OPS by forwarding the grievor’s employee portfolio to the Shared Services Bureau that is responsible for running such searches. Counsel stated that the grievor’s employee portfolio had been entered into the database and the search could be run immediately. It was the employer's position that the jobs identified within the Ministry of Health had to be dealt with first. Thus the search for jobs throughout the OPS had been put on hold because the jobs within the Ministry had to be determined as not viable. Counsel was of the view that the only individual who could find the jobs not suitable for the grievor was the grievor’s doctor. Since the employer has been taking steps to accommodate the grievor, counsel argued that there had been no abuse of process.
Mr. Baker also asked the board to clarify for the employer what the employer should be doing at this stage of the proceeding. Counsel also thought it would be appropriate for the board to direct the union in this regard as well.
Counsel argued in conclusion that there was sufficient confusion between the parties as to what was agreed to on February 14 to make it inappropriate for this board to order costs against the employer. Mr. Baker also argued that it was not the grievor’s place to choose whatever job he pleased. Further counsel noted that the employer had expected more participation from the grievor. The employer was expecting responses from the grievor as to the proposed positions put forward by the employer. Counsel stated that the employer had expected reasons for why proposed positions were not suitable. Counsel submitted that a confusion or miscommunication cannot amount to an abuse of process.
Union counsel argued in reply that there had been a clear agreement between counsel to proceed on February 14 with mediation. That agreement was based on the understanding that before February 14 the Ministry would identify jobs outside the MOH, since for at least three years no appropriate job had been identified within the Ministry. Then, there was a clear agreement on February 14 that the employer would proceed with the search for positions beyond the Ministry. Counsel argued that the basis of her motion is that it was an abuse of process not to complete the undertaking to do the search beyond the Ministry. Counsel argued that the employer had no right to postpone the search for jobs across the OPS because they wanted a medical response to the proposed jobs within the Ministry. Counsel had indicated clearly in her letters and by telephone that none of the jobs identified within the Ministry were within a reasonable range of the grievor’s current compensation. And thus she had rejected them on the grievor’s behalf as not suitable. Counsel submitted that she had made full responses to the employer on behalf of the grievor and that these were sufficient.
Ms. Smith concluded that she is not arguing a motion for abuse of process because the search has not been proper. Her motion is based upon the fact that an undertaking was made by the employer to do a search throughout the OPS and it was not done.
DECISION
The issue before me is whether the employer made an undertaking on February 14 to search for a position for Mr. Speiran throughout the OPS. Union Counsel is adamant that the undertaking was made. Counsel for the employer seemed to be the arguing that he had complied with the undertaking by forwarding Mr. Speiran's employee portfolio to the Shared Services Branch for the search, even though the search was not done. At the same time counsel seemed to be arguing that the Ministry was in no position to make such an undertaking Mr. Baker’s position was also that there was confusion as to what undertaking was made. But he stated that my notes of what was undertaken on February 14 would govern the parties.
I am satisfied, after reviewing my own notes of February 14 that the employer counsel made an undertaking on behalf of the Ministry to identify jobs that might be suitable for the grievor both inside and outside of the Ministry of Health. The undertaking was not to search for jobs first in the Ministry of Health and then throughout the OPS, rather it was an undertaking to search for suitable positions throughout the employer's workforce. To that end the grievor was given an employee portfolio on February 14 to fill out. This portfolio is essential in order to run a search for positions throughout the OPS. The grievor was given the portfolio and directed to fill it out and return it to the employer as soon as possible so that the OPS search could be done. Agreeing to search throughout the OPS did not preclude a search within MOH – but it was clear that it was to be concurrent.
In part because of the apparent confusion as to what was agreed to before February 14 – I offered to make an order that the employer proceed with the OPS search. Mr. Baker stated that this would not be necessary
Counsel for the employer took the position that the grievor had not responded adequately to the proposed MOH jobs. This is an issue that must be dealt with when the merits of the case are heard. It is simply no answer to the union’s position that the employer has breached its undertaking to search for a position beyond the MOH.
Having made the undertaking, the employer must comply. Thus I hereby direct the employer to identify possible job matches across the OPS and forward a list of positions with job specifications to the union by June 18 at the latest.
As to the request for an award of general damages and a declaration that the search for a position for Mr. Speiran has been improper, I'm of the view that it would be inappropriate to address these issues at this stage in the proceedings. Regarding the issue of costs I have decided to reserve my judgment on this request at this time.
There has been serious delay in hearing this case, which if allowed to continue would amount to an abuse of process. The hearing shall proceed on the scheduled dates unless the parties agree to and file minutes of settlement with the Board before the next hearing date.
Dated at Toronto, this 11th day of June, 2001.