GSB#0944/02

UNION#02B576

IN THE MATTER OF AN ARBITRATION

Under

THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT

Before

THE GRIEVANCE SETTLEMENT BOARD

BETWEEN

Ontario Public Service Employees Union (Kerna)

Grievor

• and -

The Crown in Right of Ontario (Ontario Human Rights Commission)

Employer

BEFORE

Felicity Briggs

Vice-Chair

FOR THE UNION

Gavin Leeb Barrister and Solicitor

FOR THE EMPLOYER

Meredith Brown Counsel Management Board Secretariat

HEARING

March 14, 2003.

DECISION

The grievor, Gloria Kerna, has been an employee of the Human Rights Commission for 23 years. She began as a Clerk 2 and received various promotions over the years. Her most recent position is Investigations Officer. In early June of 2002, she filed two grievances. One alleged that the Employer denied her request for accommodation in her home position. The second asserts that she has been discriminated against as the result of her prior involvement in certain union matters.

At our first day of hearing the parties agreed to argue a preliminary matter. It was the Union’s position that the Employer should proceed first in this matter and requests the Board to so order. The Employer strongly disagreed with this motion and urged the Board to deny the Union’s request.

For the purposes of this preliminary matter the relevant facts were not contested. The grievor had been experiencing medical problems and in January of 2002 she requested and was accommodated by the Employer retroactive to May of 2001. It is important to note that in the recent past, notwithstanding Union objections, the Employer has instituted a performance expectation plan for Investigation Officers. It is now expected that Investigation Officers will close between 36 to 40 files per year. The accommodation provided that the grievor would be required to close forty per cent less files than other Investigation Officers, that is 21 to 24 files per year.

In a letter dated May 23, 2002, the grievor was officially notified that her arrangement would end as of June 3, 2002. Ms. Kerna was told that the Commission had “decided to accommodate (you) in the position of Intake Officer in the Inquiry and Intake Office”. It is this change of position that the Union asserts is a violation of various provisions of the collective agreement as well as the Ontario Human Rights Code. While there is a salary differential between Intake Officer and Investigations Officer, the Employer did not alter the grievor’s compensation. She continues to be paid at the rate of an Investigations Officer. However, the Union asserted that the change in position caused the grievor anguish, frustration and embarrassment in the workplace to the point where she considered herself penalized by the assignment.

Mr. Leeb, for the Union, explained that the central issue at hand in this matter is that the grievor has been discriminated against when the Employer elected to remove her from her home position of Investigation Officer and re-assigned her to the position of Intake Officer. The Employer must establish that it will suffer undue hardship before it can move the grievor out of her home position and assign her to another position. It is the long accepted jurisprudence that the burden is on the Employer to prove such to this Board. Only the Employer knows why it chose to abandon the agreed upon accommodation and why it unilaterally decided to transfer the grievor to a lesser position. It is because that knowledge is known only to the Employer that this Board must declare it has the procedural onus.

The Union conceded that discrimination can be legal or illegal. In order for the Board to find that the re-assignment of Ms. Kerna which constituted discrimination was acceptable, the Employer must establish that a continuation of the previously agreed upon accommodation would have caused it undue hardship.

The Union relied upon Re Unilever HPC NA and Teamsters, Chemical Energy and Allied Workers, Local 132 (2002), Source decision, 106 L.A.C. (4^th) 360 (Springate); Re Board of Governors of Riverdale Hospital and Canadian Union of Public Employees, Local 79 (1994), Source decision, 41 L.A.C. (4^th) 24 (Knopf); Re Air Canada and Canadian Auto Workers, Local 2213 (2001), Source decision, 101 L.A.C.