GSB# 0588/01, 0701/02

UNION# 01U001, 02B468

IN THE MATTER OF AN ARBITRATION

Under

THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT

Before

THE GRIEVANCE SETTLEMENT BOARD

BETWEEN

Ontario Public Service Employees Union (Union Grievance)

Grievor

• and -

The Crown in Right of Ontario (Ministry of Community and Social Services)

Employer

BEFORE

Janice Johnston

Vice-Chair

FOR THE UNION

Mr. John Brewin Ryder Wright Blair & Doyle Barristers and Solicitors

FOR THE EMPLOYER

Mr. Stephen Patterson Associate Director, Labour Practice Group Management Board Secretariat

HEARING

August 20, 2001, February 20 & 21, 2002, November 5 & 6, 2002, December 4 & 5, 2002.

DECISION

This is a union grievance alleging a violation of article 9 of the collective agreement. In essence, the union is alleging that the manner in which the employer has reorganized the work in the Ontario Disability Support Program (ODSP) offices is a violation of the collective agreement as the reorganization has significantly increased the risk of ill health to employees working in these offices. In particular, the union suggests that the employer has created an environment in which employee stress has been increased significantly.

Article 9.1 is the relevant section in the collective agreement and it reads as follows:

The Employer shall continue to make reasonable provisions for the safety and health of its employees during the hours of their employment. It is agreed that both the Employer and the Union shall co-operate to the fullest extent possible in the prevention of accidents and in the reasonable promotion of safety and health of all employees.

There is no dispute between the parties that there has been a change in the way in which work is organized in the ODSP offices. In his opening statement, counsel for the Ministry described the changes that had taken place. He suggested that a newly structured organization has been created in response to a new social services regime in the province. As a result, much of the social assistance previously handled at the provincial level has been downloaded to municipalities. One exception is the ODSP; it is still delivered at the provincial level.

As a part of the larger reorganization of service delivery, the ODSP offices went from what was referred to as a “case management system” to a “case pooling system”. The result is that instead of having one counsellor or employee responsible for providing all or at least the majority of the services and support to a particular client, there are a number of individuals who deal with the client depending on the stage the person is at in the process or the needs of the client.

I have set out a brief overview of the changes that have taken place as described by the employer. I am not suggesting that the union necessarily agrees with this description of the changes provided by the employer nor that the short synopsis is comprehensive in any way.

However, the parties do agree that significant changes have occurred in the manner in which the work is organized and service delivered in the ODSP offices. The dispute before me pertains to the effect of these changes on employees.

I have heard from one witness in this case, Dr. Wayne Lewchuk, who was an expert witness called by the union. He was retained by the union to assess the extent to which the organization of work by the employer makes reasonable provision for the health and safety of staff and to offer recommendations, if any, arising out of his assessment.

After conducting the assessment, Dr. Lewchuk prepared a report dated January 31, 2002. He gave evidence over four days of hearing which, among other things, detailed the methodology he utilized, the data he collected, the conclusions he came to and the recommendations he made.

At the conclusion of Dr. Lewchuk’s evidence, counsel for the union requested that the parties, with my assistance, engage in some case management of this matter. Counsel characterized the grievance before me as one of considerable importance to the union and one which was very complex. Due to the nature of the issues raised, union counsel expressed concern that unless the parties were careful, this case could require the testimony of multiple witnesses and consume many days of hearing. I agree with this observation.

Therefore, to expedite this hearing, the parties agreed that it was necessary at this stage for the employer to clearly articulate its position with regard to the evidence of Dr. Lewchuk and the report he provided to the union. For example, are there portions of the report that the Ministry can agree to? Or if unable to agree, on what basis? It is necessary for the union to know which aspects of the report and/or evidence of Dr. Lewchuk, if any, are challenged by the employer so that it can be determined what witnesses must be called in support of the report. Requiring the Ministry to state its position on the report at this stage in the proceedings may potentially reduce the number of days necessary to complete this hearing.

Accordingly, the Ministry has agreed to and is hereby directed to provide to the union by January 24, 2003, particulars which are as complete as possible concerning the position it will be taking on the report of and evidence of Dr. Lewchuk.

This case raises complex issues which, assuming the union is successful in the initial stage of the proceedings and convinces me that the conduct of the Ministry has violated the collective agreement, may be difficult for me to remedy. For example, this is not a straightforward termination case where if the union were successful reinstatement is the obvious remedy. In opening submissions, employer counsel requested that should I find in the union’s favour that I reserve on the issue of remedy and refer it back to the parties to work something out.

While this course of action is an option, it also appears to me that the parties could and should make an attempt to resolve this case at an earlier stage of the proceedings. The Ministry has heard the evidence of Dr. Lewchuk and has had the opportunity to test his evidence in cross-examination. This evidence is one of the cornerstones of the union’s case and the completion of this key witness should put both parties in a position to form a reasonable evaluation of the strength of their case and of the strength of the case of the other side.

Whenever possible, it is always preferable for the parties to come to a mutually agreeable resolution in arbitration proceedings rather than having one imposed by an arbitrator. It is particularly true in this case due to the complexity of the issues raised and the potential difficulties which could result from a remedy or remedies imposed by me at the end of the day.

The next day scheduled in this matter is February 19, 2003. The parties agreed to utilize this day for mediation. In order to make the mediation meaningful, it is necessary to have present at it those individuals on both sides who have the authority to commit to a settlement. If it is not possible for such persons to actually attend the mediation, then at the least they must be available by telephone.

Accordingly, this matter will continue on February 19, 2003, and unless the parties agree otherwise, the day will be utilized for mediation.

Dated in Toronto this 9th day of January, 2003.