GSB# 2003-2128

UNION# 2003-0104-0002

IN THE MATTER OF AN ARBITRATION

Under

THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT

Before

THE GRIEVANCE SETTLEMENT BOARD

BETWEEN

Ontario Public Service Employees Union (Moon)

Grievor

• and -

The Crown in Right of Ontario (Ministry of Education)

Employer

BEFORE

Loretta Mikus

Vice-Chair

FOR THE UNION

George Richards Grievance Officer Ontario Public Service Employees Union

FOR THE EMPLOYER

Deborah Metrakos Staff Relations Consultant Ministry of Education

TELECONFERENCE

November 18, 2003.

DECISION

On November 18, 2003 I participated in a teleconference between George Richards, an OPSEU Grievance Officer and Deborah Metrakos, a Labour Relations Consultant with the Ministry of Education. The purpose of the conference was to allow the Union to make a motion for interim relief in the matter of the grievance of Brenda Moon.

The grievor was first employed by the Ministry in December of 1986 on a supply basis and is currently an unclassified seasonal Classroom Assistant at the Robarts School for the Deaf in London. She has had a long-standing history of physical and mental health problems dating back to the early 1990’s. For purposes of this application I do not need to recite the historical background to her present problems. Suffice to say that her physical condition have been addressed by the Employer by adjustments to her work situation. Her physician had indicated approval for the accommodations made. The issue before me concerns appropriate accommodation for her psychological problems.

The accommodations at the time included a temporary transfer from the Robarts School to the Amethyst Demonstration School, which is for children with severe learning disabilities. The move was temporary in that the Employer was seeking clarification of her limitations before deciding what, if any, permanent accommodation would be necessary. This temporary arrangement was to continue to December of 2002.

By December the Employer had not received the necessary information and the accommodation was extended. In February the Employer received limited medical information about the grievor’s condition and no information on accommodation. The Employer wrote detailed letters to the grievor’s physicians and by April had received appropriate medical information on her physical limitations but nothing with respect to her psychiatric restrictions. The grievor consented to an independent medical examination and, although the consultation was completed on May 26, 2003, the Employer has not received a copy of the report. The Employer had asked Manulife to arrange for the IME and their process required specific consents by specific deadlines. In any event, the result has been a delay in the release of the report.

It is not disputed at this time that the grievor’s physical limitations have been addressed and that any further accommodation required are related to he psychological condition.

The Robarts and Amethyst schools are located on the same property in London and operated by the Ministry of Education. The programs are distinct in that the staff working at Robarts must be able to communicate using American Sign Language (ASL). Otherwise the essential duties are similar. It is the ASL that is problematic for the grievor. I was not told why it is problematic although I assume it is a matter of additional stress for the grievor.

The temporary arrangement at Amethyst was discontinued in September and the grievor returned to Robarts. Shortly thereafter the grievor wrote a letter to the principal complaining about being harassed by her fellow workers. When asked to provide more information about the harassment, the grievor never responded. The Union’s position is that dealing with the WDHP complaint process is too stressful for the grievor at this time.

Six days after her return to Robarts, the grievor went off on sick leave. Her physician’s note stated she would be off work for four weeks. She has remained off to the present. The Employer takes the position that it has already accommodated the grievor to the extent necessary to allow her to return to the physical aspects of her job. It is committed to continuing the IME process and, if necessary, making accommodations for any restrictions her physician recommends. However, it had no openings in Amethyst and, in order to accommodate the grievor it would have to displace another employee. In the face of this lack of information, the Employer has done all it can at this time and it should not have to disrupt its workplace without proof of the need to do so.

The grievance was filed on September 15, 2003 and it was referred to the GSB on October 21^st. The Employer attempted to set up a 2^nd stage meeting but the Union Representative was unable to meet in November. A meeting is arranged for December 3, 2003 and the Employer asks this Board to dismiss the motion for interim relief and allow the parties to meet to continue discussions about future accommodations.

Mr. Richards takes the position that the grievor will suffer irreparable harm if she is not returned to work as soon as possible. She has no income and the stress of being unemployed can only exacerbate her psychological problems. The arbitration process could result in a delay of several months or even a year before a final determination is made. Asking her to return to Robarts, the very situation that causes her stress in the first place, is not a viable alternative.

The test for interim relief had been twofold: the existence of an arguable case on the merits and the balance of potential harm or inconvenience. In applying that test to the facts of this case, I must dismiss this application. In my view, there is not enough information at this stage to determine whether there is an arguable case on the merits. I am told that the grievor is happier at Amethyst School and that her attendance and sick leave record had improved while in the temporary position. However, I cannot determine whether that is because her psychological needs are being better met at Amethyst or whether she is happier because that is where she prefers to be. If it is the latter, that cannot be grounds for accommodation.

Neither party provided me with any medical information about any restrictions necessary to accommodate the grievor’s psychological condition. As far as I know, none have yet been identified by her physician. It cannot be said then that there is an arguable case that the grievor will succeed at arbitration and therefore I cannot grant the request for interim relief.

The application for interim relief is therefore denied.

Dated at Toronto this 1^st day of December 2003.