GSB# 2003-2762, 2003-2763

UNION# 2003-0725-0017, 2003-0725-0018

IN THE MATTER OF AN ARBITRATION

Under

THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT

Before

THE GRIEVANCE SETTLEMENT BOARD

BETWEEN

Ontario Public Service Employees Union (Howells)

Union

• and -

The Crown in Right of Ontario (Ontario Clean Water Agency)

Employer

BEFORE

Nimal V. Dissanayake

Vice-Chair

FOR THE UNION

Jim Gilbert Grievance Officer Ontario Public Service Employees Union

FOR THE EMPLOYER

Janice Campbell Counsel Ministry of Government Services

HEARING

May 30 & 31, October 20 & 21 and November 23, 2005.

Decision

This decision relates to two grievances filed by Mr. Cary Howells on October 21, 2003. In essence they claim that Mr. Howells (“grievor”) was terminated because of his disability, contrary to the Ontario Human Rights Code and the collective agreement.

The way the parties have joined issue, these grievances raise two primary issues. First, whether the cessation of the grievor’s employment was a result of termination of his employment (as asserted by the union) or a result of a non-renewal of an unclassified contract (as asserted by the employer). The second issue is, if it is found to be a non-renewal, whether the decision to not renew was in whole or in part based on a ground prohibited by the Human Rights Code and the collective agreement, so as to confer jurisdiction on this Board.

The grievor was hired on November 28, 2002 by the Ontario Clean Water Agency at its Atikokan Water Treatment Plant on an unclassified contract that had a term December 02, 2002 to May 14, 2003. His contract was then renewed from May 15, 2003 to August 31, 2003. During this first extension, on July 23, 2003 the grievor was injured at work and went off work. His WSIB claim was approved and he has remained on WSIB benefits as of the last hearing date. While he was off, he received a second extension of his contract, from September 1, 2003 to November 3, 2003. Then late in October the grievor received a letter from the Operations Manager, Mr. Marcel Lavigne (The letter was dated September 15, 2003 but I accept the evidence that it was an inadvertent error and should have read October 15, 2003), which in part read:

Dear Mr. Howells,

Effective Friday October 31, 2003 your contract for employment with the Ontario Clean Water Agency has been terminated.

Another employee was hired on contract to fill the position that had been occupied by the grievor.

Termination or non-renewal

The grievor was hired into a position of Operator Trainee. The position specification provides in part, “Must hold (or be able to obtain within specified time) Water Treatment, Wastewater Treatment, Wastewater Collection and Water Distribution O.I.T. licenses to comply with Reg. 435/93 (as amended) of the Ontario Water Resources Act”.

The Standard Operational Procedures of the employer stipulates that only persons holding a valid O.I.T. licence under Reg. 435/93 may operate a municipal drinking-water system or a regulated non-municipal drinking water system. The evidence is that most employees do not possess the O.I.T. licence at the time of hire. However, only individuals who possess the prerequisites to write the O.I.T. examination, i.e. grade 12 or equivalency, are hired. The grievor was an exception in that he was hired despite not having his grade 12 or equivalency. The usual progression was that an employee would pass the O.I.T. licence and then work for 1 year, which qualifies him to obtain the full operator’s licence.

Mr. Lavigne testified that typically a first contract for a new hire is for 5½ months. As a matter of policy employees are expected to obtain the O.I.T. licence during the first contract. Most do it in 2 months. All new hires during Mr. Lavigne’s tenure, except for the grievor, had obtained the O.I.T. licence during their first contract. Mr. Lavigne discovered that the grievor did not have his grade 12 approximately a month after his hire, when he discussed with the grievor about getting his O.I.T. licence.

Mr. Lavigne testified that he had instructed the grievor’s immediate supervisor at least on two occasions to direct the grievor that he must get his O.I.T. licence prior to the expiry of his first contract on May 14, 2003. He had confidence that Mr. Brown had done that. However, by May 14^th the grievor had not obtained his O.I.T. licence. In that situation an employee’s contract would not normally have been renewed. However, Mr. Lavigne discussed with Mr. Brown that the grievor was a good worker, and directed that his contract be extended to give him a further opportunity to get his O.I.T. licence. This resulted in the extension of the grievor’s contract from May 15 to August 31, 2003.

Mr. Lavigne testified that at the time of that extension it was explicitly stated to the grievor that he must obtain his O.I.T. licence in that period. However, during the term of that contract, on July 23, 2003, the grievor suffered a work-related injury and went off work on WSIB benefits. Even following discussions with the Human Resources Staff, Mr. Lavigne was uncertain whether he could allow the grievor’s contract to run out on August 31^st, while he was off on WSIB. In the circumstances it was decided that the contract should be extended for two months, to allow time for the employer to decide what it should do. This resulted in a further contract from September 1, 2003 to November 3, 2003. Upon subsequent consultation with the Human Resources Dept., Mr. Lavigne was informed that WSIB had advised that since the grievor was on a short-term contract, his employment can be terminated, despite the fact that he was on WSIB benefits.

The union relied on two facts in submitting that the grievor’s last contract had been terminated early, as opposed to not renewed. First, the contract had a term that was to expire on November 3, 2003, but the grievor ceased to be an employee effective October 31, 2003. Second, the employer’s letter itself did not use terminology indicating a non-renewal. Instead, it stated that effective October 31, 2003 his contract has been “terminated”. The union urged me to find that the employer had decided to terminate the contract early rather than letting it run out.

I accept the evidence of the employer witnesses that the intention was to not renew the grievor’s contract after it runs out. The evidence is that as early as July 2003, Mr. Lavigne had communicated to Mr. Brown his decision to not renew the grievor’s contract, if he had not obtained his O.I.T. licence by August 31, 2003. The subsequent two month extension was made only because of the uncertainty created by the grievor’s injury. The evidence is that throughout, the discussion was about not renewing if the grievor did not qualify himself. There was no evidence of any discussion about terminating the contract early.

Even during their testimony, it was obvious that Mr. Lavigne nor Mr. Brown appreciated the significance in law in the distinction between the terms termination and non-renewal. I have no reason to doubt Mr. Lavigne’s explanation that when he used the word “terminated” in the letter, he intended to convey that the contract will not be renewed. He explained that while the contract was to run to Monday November 3, 2003, he recognized that the grievor was not at work anyway. October 31, 2003 was a Friday and also the end of a pay period. For administrative and payroll purposes it was much easier, if employment is deemed to end at the end of a pay period. It was only because of this administrative convenience that he used the October 31, 2003 date. There was never an intention to terminate the contract early.

While technically an early termination could be said to have occurred where an employee with a contract that runs to November 3 ceases to be employed effective October 31, I accept the employer’s evidence that there was no intention to terminate the contract early. It is improbable that the employer would be anxious to rid itself of an employee who is not at work anyway, when he had only three more days before his contract ran out. While the employer had made several administrative and/or clerical errors, I am satisfied that what was intended, and what occurred, was a decision to not offer the grievor a new contract.

Was the decision to not renew in contravention of the Human Rights Code and the collective agreement

In light of the finding that what occurred was a non-renewal, the Board’s jurisdiction to review the employer’s decision is very narrow. However, there is common ground that if the decision to not renew was made in violation of the grievor’s right not to be discriminated on the basis of his handicap, the Board does have jurisdiction.

The employer’s position is that the decision to not renew was solely based on the grievor’s failure to obtain his O.I.T. licence which was required by legislation before he could perform the full range of duties of his position. Counsel submitted that while normally a new hire is expected to obtain the O.I.T. licence during his initial 5½ month contract, the grievor in fact received preferential treatment. When he had failed to qualify himself during his first contract, he received an extension to allow him more time to get his O.I.T. licence. His supervisor took the initiative to contact a school where he could do the necessary studies. He was allowed paid time off to attend the school. Despite the encouragement and assistance by the supervisors, the grievor had failed to qualify himself. As a result, the grievor could only perform labourer type duties of his position. He could not do technical duties unless he was accompanied by another qualified employee. Counsel pointed out that the Operator Trainee position, by definition, envisaged that an incumbent would complete his training and become qualified. While the legislation did not stipulate that the qualification must be obtained within a specific time period, the employer had followed a consistent policy of requiring that employees qualify themselves during their initial contracts. The reasonableness of that policy is evidenced by the fact that all new hires, except for the grievor, had met that time-line.

One of the main conflicts in the evidence is about the timing and nature of the notice given to the grievor by the employer that he was required to obtain his O.I.T. licence if he is to continue his employment. The employer’s evidence is that the grievor was so advised first during the interview that led to his hire, and subsequently on at least several occasions. The grievor testified that he first became aware of the requirement in late January/early February 2003.

The union pointed out that the employer could have done things differently if it wished to convey to the grievor that the obtaining of his O.I.T. licence is a condition of his continued employment. The employer should have explicitly stipulated that condition in the letter of appointment, for instance. I agree that the employer could have documented many of its dealings with the grievor, which would have made it much easier for the employer to defend itself. The employer produced no written document where the grievor was advised of the requirement. Indeed, it was conceded that all such communications were verbal. Nevertheless, even on the grievor’s own admission, at least by January/February 2003, the grievor was aware of the requirement to get his O.I.T. licence. The obligation to qualify himself is his. Not the employer’s. The employer provided him assistance to achieve the qualifications. Perhaps the employer could have done more, as the union suggests. However, I have not been referred to any legal obligation on the employer in that regard.

While the employer could have been more direct and formal in communicating the importance of obtaining the O.I.T. licence, I find that the grievor did receive the following memorandum dated February 3, 2003 from his supervisor, Mr. Brown:

Cary you have only 13.5 credits available at this time. You need 1800 credits to write for your OITs. I have talked to Anita Petrof about this today. Anita has said they will let you write if you pass your GED test.

The first available test time is, Feb. 21 & 22/2003. You will have to write at this time. It will be held in Thunder Bay at the Confederation College. These dates are on Friday and Saturday in February.

First steps are to go to Reading Plus in Atikokan, they will setup testing procedures to help you out, this will allow them to determine what you need to study up on and prepare you to write. They will send a schedule for you to follow and a meeting time to discuss all requirements. This is the only way you can achieve the required criteria to write, it must be done.

This is a requirement, for your work position, without the ability to become certified your contract will be terminated.

(Emphasis added)

While I have dealt with the foregoing arguments forwarded by the union, that is really a digression from the issue which allows me jurisdiction to review the employer’s decision to not renew an unclassified contract. That is, was that decision made, in whole or in part because of the disability suffered by the grievor on July 23, 2003.

In this regard, Mr. Lavigne testified that in July, prior to the date of the grievor’s injury, it became apparent to him that the grievor would not be able to obtain his O.I.T. licence by the end of his contract on August 31, 2003. Therefore he decided to terminate the grievor’s employment effective August 31, 2003 and communicated that decision to the grievor’s supervisor, Mr. Brown. Mr. Brown corroborated this evidence, that prior to the grievor’s injury Mr. Lavigne told him that the grievor’s employment will be terminated at the end of his contract on August 31, 2003 unless he obtains his O.I.T. licence by that date. This evidence clearly establishes that the decision to not renew was predicated solely on the grievor’s obtaining of the O.I.T. licence, and had nothing whatsoever to do with his injury. In other words, the grievor’s contract would not have been renewed, even if he had not suffered the injury, because he had failed to qualify himself.

The union submitted that the injury suffered by the grievor prevented him from obtaining his O.I.T. licence, and suggested that the employer could have “accommodated” the grievor by keeping him on employee status until he was able to obtain his qualifications. It was pointed out that, since the grievor was off work on WSIB benefits, it would not have caused any hardship for the employer to do so. I agree that the employer could have done so. However, the issue is whether the employer had a legal obligation to do so. The answer clearly is “no”. The duty to accommodate means making whatever arrangements required (short of undue hardship) to enable the disabled employee to return to the workforce. There is no evidence whatsoever that the grievor had made any request for accommodation that would have enabled him to return to work. On the contrary, there is evidence that the grievor failed to respond to an offer from the employer that he attend work despite his injury and do “light duties” involving the review of operational procedures.

In Re Gallagher 152/94 (Gray), the union argued that because the employer could have conferred employee status on the grievor without suffering undue hardship, it was obliged to “accommodate” the grievor by renewing his employee status and simply tolerating his total incapacity until such time as he recovered sufficiently to return to modified duties. The Board, at pp. 16-17 wrote:

When the Superintendent decided she would not reappoint the grievor to employment as an unclassified correctional officer, the grievor was incapable of performing the essential duties of that employment, and there was no prognosis then as to when, if ever, he would recover sufficiently to perform either regular or modified duties. The employer argued that whatever it may have chosen to do in the past, the Code did not oblige it to appoint to a position someone then incapable of performing the work of that position. The union’s response was that because the employer could have conferred employee status on the grievor without suffering undue hardship, it was obliged to “accommodate” the grievor by renewing his employee status and simply tolerating his total incapacity until such time as he recovered sufficiently to return to modified duties.

This raises the difficult question whether simply tolerating total incapacity is an accommodation of the sort required by subsection 17(2) of the Code. That question was addressed this way in Re Bonner v. Ontario Ministry of Health, Insurance Systems Branch (1992) 1992 CanLII 14236 (ON HRT), 16 C.H.R.R. D/485 (Hubbard) at paragraph 80:

...Section 16(1a) [now s. 17(2)] of the Code and the case law dealing with the former s. 16(1)(b) indicate that a person cannot be judged incapable of performing unless it is found “that the needs of the person cannot be accommodated without undue hardship.” Clearly the “needs” in question are needs which if met would actually enable a person to perform the work so that it can be said that, but for the failure to provide those needs, the employee would have been able to perform the work. The “needs” must be such that upon their accommodation capacity would occur ... The “need” for deferral of activity to some future time in the hope that circumstances will change for the better is not a “need” the accommodation of which would enable the person to perform work that he or she is demonstrably unable to perform currently. It is not, in my opinion, a “need” within the meaning of that term as contemplated by the Code.

When the Superintendent decided not to appoint the grievor to a further term of employment as an unclassified correctional officer, there was no need which, if accommodated, would have enabled the grievor to then perform either regular or modified work in that position. If the analysis in Bonner is right and bears application here, it would follow that the employer was not obliged by the Code (or, if the decision had been made in December 1993, by Article A) to accommodate him in the manner suggested by the union, no matter how little it might have cost it to do so.

In the present case there is no evidence that it was the injury that prevented the grievor from getting his O.I.T. licence. He had been employed approximately for 8 months before his injury. He had yet not obtained his prerequisites to be in a position to write for his O.I.T. licence. The inescapable conclusion to be reached from the evidence is that the decision was based solely on the grievor’s failure to obtain the required qualifications as per employer policy. This Board has no jurisdiction to pass judgement on the reasonableness of that decision in the circumstances faced by the grievor. In any event, as in Re Gallagher (supra) the grievor was, at the relevant time, incapable of performing the essential duties of his position. There was no prognosis as to when, if at all, he would recover sufficiently to be able to perform regular, or even modified duties. In the circumstances there was no duty to accommodate by renewing the grievor’s contract until such time that he is able to return to work.

I find that there has been no violation of the Human Rights Code or the collective agreement. The grievances are therefore dismissed.

Dated this 16^th day of January, 2006 at Toronto, Ontario