GSB# 2002-2964, 2002-2965, 2002-2966, 2004-2332, 2005-0944
UNION# 2003-0634-0001, 2002-0634-0005, 2002-0634-0004, 2004-0634-0003, 2005-0634-0001
IN THE MATTER OF AN ARBITRATION
Under
THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT
Before
THE GRIEVANCE SETTLEMENT BOARD
BETWEEN
Ontario Public Service Employees Union (McCormick)
Union
- and -
The Crown in Right of Ontario (Ministry of Transportation)
Employer
BEFORE
Randi H. Abramsky
Vice-Chair
FOR THE UNION
Caroline “Nini” Jones Paliare Roland Rosenberg Rothenstein LLP Barristers and Solicitors
FOR THE EMPLOYER
Suneel Bahal Counsel Ministry of Government Services
HEARING
December 12, 2005; January 12 & 31, 2006.
Decision
The Union has moved for interim relief in this matter, asking the Board to order the Employer to provide a “special or compassionate” leave with pay to the grievor, pending the final conclusion of her grievances. The Employer has opposed this motion.
Facts
There are seven grievances before the Board. The first two were filed on August 28, 2002 and allege that the Employer failed to provide a safe and healthy workplace, improperly disciplined the grievor and improperly required her to use her vacation credits. The third grievance was filed on January 27, 2003 and alleges unjust discipline. On March 3, 2004, a fourth grievance was filed, alleging discrimination and a poisoned work environment. A similar fifth grievance was filed on June 21, 2004. The sixth grievance, also alleging discrimination and harassment, was filed on May 3, 2004. The seventh and final grievance was filed on November 21, 2005, alleging that the Ministry improperly released private medical information without the grievor’s consent.
The parties agreed, and the Board issued a Consent Award, that the grievor’s evidence, for the purposes of this motion only, could be tendered by sworn affidavit without cross-examination. The Ministry also agreed that, for the purposes of this motion only, that there is an “arguable case on the merits.” Consequently, the parties’ dispute centers on the second part of the test for interim relief – the balance of harm or convenience to the parties.
The grievor, through her affidavit, outlined her allegations of discrimination and harassment. I do not find it necessary to describe them in detail, but they do allege very serious claims of harassment and discrimination because of her gender as well as retaliation for raising her concerns - from supervisors, management, human resources staff and co-workers. In substance, she alleges a pattern and practice of harassment and discrimination which has grown progressively worse over time.
The grievor went off on sick leave in June 2005. She exhausted her short term sick entitlements in early December and applied for long-term income protection under the collective agreement (LTIP). Her claim for LTIP has been denied, and to date, there has been no appeal filed. Her employment status, at the present time, is that she is on a leave of absence without pay.
It should be noted, however, that her employment status was changed at our first day of hearing on the interim motion, December 12, 2005. On November 21, 2005, the grievor was sent a letter outlining that she had been off work since June 13, 2005 without providing medical information to support her absences or return to work. The letter continued:
To date, you remain off work and we have not received medical information from your medical practitioner sufficient for the ministry to determine your fitness to perform your regular job duties or whether or not there is any workplace accommodation available to quicken your return to the workplace. Therefore, the Ministry has no other option, but to consider you to be on an unauthorized leave of absence without pay effective June 15, 2005. The Ministry will recover any compensation received by you subsequent to June 15, 2005, at a later date.
Further, you are hereby notified that you are required to return to work on December 5, 2005 as per the attached schedule. Upon your return, we will be required to schedule several meetings to resolve all of the outstanding matters that were being reviewed with you prior to you leaving the workplace.
Finally, the letter advised the grievor of Section 20 of the Public Service Act, which basically states that if an employee is absent without official leave to a period of two weeks, he or she may be declared to have abandoned their position and be terminated.
The November 21, 2005 letter appears to have been sent to the grievor when the Ministry’s attempt to obtain medical information through an independent medical examination (IME) of the grievor fell apart. It is the Union’s position that this process fell apart because the Ministry sent confidential medical and employee information about the grievor to a third party - the facilitator of the IME and a doctor – without the grievor’s consent. That led to the seventh grievance, dated November 21, 2005.
The grievor’s receipt of the November 21, 2005 letter from the Ministry, and the Ministry’s failure to respond to the Union’s concerns about the alleged breach of the grievor’s privacy, precipitated the Union’s motion for interim relief.
At the hearing on December 12, 2005, however, the Ministry, in writing, rescinded the letter of November 21, 2005. It also withdrew its requests for an IME of September 26 and October 17, 2005. The letter continued: “Effective December 7, 2005 you will be placed on a leave of absence without pay pending a decision of your application for Long Term Income Protection (LTIP).” It also stated that “[s]hould you have accommodations that you wish the employer to consider, kindly provide the appropriate medical and we will respond accordingly.”
As a result of all that occurred, the grievor asserted, in her affidavit, that she did not believe that she could return to work until her grievances were addressed. In terms of the harm that would occur if her request for interim relief is not granted, her affidavit, in relevant part, states as follows:
In light of all the foregoing, I do not believe that I can return to my current workplace, until matters raised in my grievance have been addressed. I am currently under the care of a psychiatrist who advises me that I cannot and should not return to a poisoned work place. My family, including my husband and my two children, have suffered greatly, as they have had to witness the effect that the harassment and discrimination has had on me over the last number of years. Moreover, even if I could return to the workplace, I believe that the employer will continue to harass me and single me out for differential treatment and unfair discipline. I believe that his would simply give rise to increased medical difficulties for me, and further and additional grievances and disputes.
Furthermore, I am now receiving no income. The financial hardship for me and my family is indescribable. We are at risk of being unable to meet our obligations and this is taking a terrible toll on my marriage.
Finally, I am not willing to provide confidential medical information from my psychiatrist or any other treating physician to an employer who has already demonstrated that it has little regard for my privacy, my rights, the collective agreement or its statutory obligations.
No evidence other than the grievor’s affidavit was submitted by the Union.
The Employer provided evidence about the LTIP appeal process – specifically, how the parties’ have agreed, in the collective agreement, for that specialized process to work. It also provided evidence of its employment accommodation and return to work policies and practices. The evidence showed that when an employee exhausts STSP benefits and has not yet been approved for LTIP, their employment status is a leave of absence, without pay. Under LTIP an employee receives 66 2/3% of their salary. Under STSP benefits, an employee receives 75% of their salary.
Since the December 12, 2005 hearing, the parties have selected a Vice-Chair and have set an initial hearing date of March 15, 2006. Both sides agree, however, that this will be a long hearing, involving many witnesses. Optimistically, it may be concluded in 2006, but it may also continue well into 2007.
Arguments of the Parties
The Union
The Union asserts that in light of the ongoing and extreme harassment, discrimination and retaliation that the grievor has suffered, the parties must be separated from each other, and that the grievor should not be required to work in such a poisoned environment This is necessary, it contends, for the parties’ to focus on the litigation. Otherwise, it asserts that there will inevitably be more conflict and more grievances. In support, it points to the Employer’s letter of November 21, 2005 which states that upon the grievor’s return to work, meetings will need to be scheduled to discuss outstanding issues. The Union asserts that this Board should “put an end to it, put a stop to it”, until the litigation is concluded. Separation, the Union argues, preserves the parties’ positions and protects both the Ministry and the grievor, while allowing the litigation to proceed in an orderly fashion, without new issues continually arising. If the parties are not separated, the Union asserts, new issues will undoubtedly arise before the initial ones are heard and resolved. The interim relief it seeks, the Union argues, ensures that the grievor need not return the workplace until all of the outstanding grievances are resolved.
The Union acknowledges that the parties are now separated through the grievor’s leave of absence without pay, but contends that the grievor should not bear the financial burden of the separation, particularly in light of the harassment and discrimination that she has suffered and resulted in her inability to work.
The Union asserts that a leave of absence without pay has already placed the grievor in a precarious financial position and caused stress for her family and marriage, which will worsen over the time this litigation will take. It asserts that the grievor will suffer substantial medical, emotional and financial harm unless its request for interim relief is granted.
The Union acknowledges that the Employer has not been provided with medical documentation but argues that this is a result of the employer’s own misconduct and failure to protect the confidentiality of Ms. McCormick’s medical and private information. Under the circumstances, the Union argues that the Employer is disentitled from receiving medical information. It contends that a leave of absence, with pay, avoids the need to have her provide medical information to an employer who has not respected her privacy or rights. The Union argues that violation of her privacy rights cannot be compensated through a damage award
The Union would also accept, in the alternative, that the grievor only be put on a leave of absence with pay until a comparable job for the grievor, in terms of skills, responsibility, and pay is found, or until her circumstances changed, i.e., she succeeded in an LTIP appeal.
In the Union’s view, its request for interim relief is not substantive, but procedural. It asserts that it addresses “the manner in which the parties will proceed with respect to one another “in the interim”, i.e., until the final decision is made.” Re OPSEU (Belanger) and Ministry of Health, GSB No. 976/93 (Kaufman), at p. 4.
The Union further contends that the Employer has provided no evidence of any harm should the motion for interim relief be granted. It asserts that the Employer has not, and cannot, claim that placing the grievor on a paid leave of absence would cause it financial hardship. It asserts that while the Employer provided evidence of the normal LTIP appeal process and the employment accommodation policy, the grievor’s situation is not the normal case. Rather, it is an extraordinary and exceptional case, for which the normal processes should not apply.
In sum, therefore, the Union asserts that the balance of harm or convenience clearly favors the grievor, in terms of labour relations – the conflict that has already taken place and the need to stop the conflict from continuing - and the actual and potential harm to the grievor should the motion not be granted.
The Union, in support of its contentions cites to Re OPSEU (Nield) and Ministry of Labour(1996),GSB No. 1471/96 (Roberts) and (McKechnie), endorsed, Ontario (Ministry of Labour and Ontario (Grievance Settlement Board)[1997] O.J. No. 427 (Gen. Div); Re OPSEU (Belanger) and Ministry of Health (1997), GSB No. 976/93 (Kaufman); Re OPSEU(Union Grievance) and Management Board Secretariat (1997), GSB No. 1196/97 (Dissanayake); Re OPSEU (Fox) and Ontario Human Rights Commission (2001), GSB No. 0507/01 (Stewart); Re Ontario (Management Board of Cabinet) and OPSEU (2003), 2003 CanLII 89536 (ON GSB), 117 L.A.C. (4th) 128 (Stewart); Re OPSEU (Ranger) and Ministry of Community Safety and Correctional Services (2004), GSB No. 2002-2375 (Leighton); Re OPSEU (Clarke) and Ministry of the Attorney General (2005), GSB No. 2004-3263 (Abramsky).
The Employer
The Employer first argues that while it agreed that there was an “arguable case on the merits”, it did not agree that the grievor’s allegations are true. It did not agree, by allowing her affidavit to be admitted as evidence, that the assertions were accurate or that this was an “extraordinary” case.
The Employer contends that on the question of the balance of harm or convenience, the evidence favors denying the motion for interim relief. In its submission, ordering the Employer to place the grievor on a leave of absence with pay until her grievances are fully litigated would completely subvert and undermine its employment accommodation and return to work policies as well as end-run the LTIP appeal process.
The Employer points out that the grievor and the Union have not provided any medical documentation to support their contention that the grievor is unable to work in her home position. Nor, it argues, did the grievor provide any such medical documentation to management to justify her absence or need for accommodation. In its view, granting the interim motion – ordering the employer to give the grievor a special or compassionate leave of absence with pay – would thwart the accommodation process as well as the LTIP appeal process. It would also, in its view, amend the collective agreement and the Public Service Act regulations which establish how such special leave may be approved. The Employer notes that the grievor has never even applied for such leave. Further, it argues that such leave provides a significantly greater financial benefit than LTIP or STSP which it fears will result in a floodgate of similar claims, should the Board order such interim relief.
The Employer further argues that the Union, in essence, is asking for a cease and desist order regarding what the Union fears will be future potential breaches of the collective agreement. It contends that by asking the Board to order the parties to be separated so that no new conflicts will develop is akin to asking for a cease and desist order. The case law, it asserts, establishes that the Board has no such authority.
The Employer also argues that the interim relief requested is substantive, not procedural, even under a broad reading of the term “procedural”. It submits that the relief would “make a finding relevant” to the Board’s determination on the merits, particularly as it impacts remedy should the grievor prevail. It contends that if the Board orders a leave of absence with pay, it will be unable to argue that the grievor is not entitled to back pay for the entire period of the litigation. In its view, it takes that issue off the table.
Finally, the Employer argues that all of the grievor’s alleged and potential losses, including her privacy interests, are compensable through an appropriate damage award and interest at the conclusion of the case. It asserts that the only harm alleged by the grievor is the normal type associated with loss of income which, by itself, is insufficient to award interim relief. It further notes that there is no evidence that the grievor has taken any steps to mitigate the financial loss. She has not applied for Employment Insurance benefits, or sought alternative employment.
In the Employer’s submissions, even if it breached the grievor’s privacy rights in regard to her medical information (which it denies), that would not obviate the need for medical documentation to support the grievor’s claim of inability to work. It rejects the Union’s contention that it has forfeited any right to obtain medical documentation from the grievor, and asserts that this Board should not permit that result. It further argues that the alternative remedy suggested by the Union provides a greater benefit than the duty to accommodate. It submits that under the duty of accommodate there is no guarantee of an equivalent position and that the parties’ recognized as much in the collective agreement under Article 7.5 which provides for medical reassignments and income protection for only six months. Further, under the duty to accommodate, the grievor must cooperate in the process which, in its submission, the grievor has failed to do.
In regard to the Union’s argument that additional conflict and grievances will arise if the parties are not separated, the Employer contends that such a situation arises regularly with respect to alleged patterns of discrimination. In those cases, it submits, the parties’ consolidate any additional matters that arise. They do not entitle the grievor to be placed on a leave of absence with pay.
In support of its contentions, the Employer cites to Re OPSEU (Nield), supra; Re Globe and Mail and Southern Ontario Newspaper Guild (Kelly)(1993), 1993 CanLII 16740 (ON LA), 39 L.A.C. (4th) 85 (P.Picher); Re OPSEU (Belanger), supra; Re OPSEU (Union Grievance), supra; Re Ontario(Management Board of Cabinet) and OPSEU, supra; Re OPSEU (Fox), supra; Re OPSEU (Union Grievance) and Management Board Secretariat (2002), GSB No. 0610/02 (Petryshen); OPSEU (Ranger), supra; Re Brewers Retail Inc. and United Brewers’ Warehousing Workers’ Provincial Board (1998), 1998 CanLII 19045 (ON LA), 74 L.A.C. (4th) 113 (Carrier); Re OPSEU (Group Grievance, Sammy et al) and Ministry of Correctional Services (2001), GSB No. 0224/01 (Harris); Re OPSEU (Latimer) and Ministry of Solicitor General and Correctional Services (March 13, 2000), GSB No. 0131/95 (Kaufman); Re OPSEU (Latimer) and Ministry of Solicitor General and Correctional Services (2005), GSB No. 1995-0131 (Kaufman).
Decision
After carefully considering the evidence and arguments of the parties, as well as the case law, I find that I must deny the Union’s request for interim relief in this matter.
Aside from the issue of whether the Employer is correct in its submissions that the Union’s motion requires me to decide an issue central to the merits or make “a finding relevant to its determination”, the motion for interim relief cannot succeed on the “balance of harm or convenience” test. In OPSEU (Leeder) and Ministry of Health (1995), GSB No. 2498/93 et al. (Finley), the Board stated that it must “weigh” the potential harm or inconvenience to the parties in a particular situation. It continued at p. 30: “If the potential harm or inconvenience is greater for the employee, then relief would be granted; if it is greater for the employer, it would be denied.”
In assessing the balance of harm or convenience, the Board has considered a number of factors – whether there is “some specific inconvenience being suffered by the grievor apart from what may generally may be presumed…”; whether damages, at the end of the hearing on the merits, would compensate the grievor; the length of time until the case on the merits might reasonably be concluded; any delay in bringing the motion for interim relief, among other factors.
In this case, the evidence of harm to the grievor, should the motion for interim relief not be granted, is found in her affidavit, most notably in Paragraph 73 and 74, which were quoted above. She states that her psychiatrist “advises me that I cannot and should not return to a poisoned workplace.” She believes that if she returns to the workplace, “the employer will continue to harass me and single me out for differential treatment and unfair discipline” and that “would simply give rise to increased medical difficulties for me, and further and additional grievances and disputes.” In addition, she has been without income since December 2005, and “[t]he financial hardship for me and my family is indescribable.” Her family is “at risk of being unable to meet our obligations and this is taking a terrible toll on my marriage.”
In terms of the financial hardship, the evidence is vague and, at this point, does not appear to be more than what may be generally presumed when an employee is without income for a period of time. OPSEU (Fox et al.), supra: OPSEU (Sammy), supra. There is no evidence of any additional consequences in regard to the loss of income, such as those set out in OPSEU (Stewart) and Ministry of Correctional Services, GSB No. 1000/94 (Gorsky). These include the “genuine possibility of the loss of a home, leased or owned”; the potential repossession of the grievor’s automobile; or the actual or threatened commencement of a court action for monies owed.
In terms of potential detriment to her health, the only evidence is the grievor’s self-assessment. There is no medical evidence to support the grievor’s assertion. A strikingly similar situation arose in OPSEU (Latimer), supra. In that case, the grievor also alleged a pattern of harassment and discrimination and went off on sick leave. She had exhausted her STSP benefits and applied for LTIP, which was denied but under appeal, so she was without income. There, as here, her employment status was a leave of absence without pay. The Union brought a motion for interim relief, seeking to restore income to the grievor though either continuing to pay the grievor STSP benefits or directing the employer to grant the grievor a paid leave of absence. Also at issue was the Employer’s request for an IME, which the Union sought to preclude. There, as here, the grievor’s evidence was presented through an affidavit.
The Board did not accept the grievor’s evidence. It stated, at p. 30:
While sympathetic to the grievor’s situation, the Board cannot rely on the grievor’s bare statement as to her inability to work at this time. To rely on her bare statement, in the course of determining the balance of potential harm or inconvenience of an order directing the employer to provide her with some form of income over some interim period, would be to decide one of the central issues in the grievances, the grievor’s personal credibility. The Board requires a medical opinion.
I reach the same conclusion here.
The grievor is asking this Board to accept her statement that she is unable to work and that she would have “increased medical difficulties” if she is forced to return to work, without any medical documentation to support that claim. She is asking the Board to place her on a paid leave absence, for a substantial period of time, solely on the basis of that assertion.
In contrast, in OPSEU (Ranger), supra, there was clear medical evidence that the grievor was able to work, but not at his home location. There was also medical evidence that his condition would improve if he was returned to work. The Board relied on that medical evidence in its ruling that the grievor must be accommodated, if possible, in an alternate workplace. Here, there is no such medical evidence. There is no medical evidence at all.
The Union asserts that the absence of medical information is the fault of the Employer since it failed to protect the confidentiality of the grievor’s medical information. This argument was also made in Re OSPEU (Latimer), supra, at p. 11, where the grievor asserted that that the Employer had not properly treated the confidential medical information it had received and alleged that “the misuse and abuse of this medical information has contributed greatly to deteriorate my emotional and physical well-being.” It was also the basis, in part, for her refusal to participate in the IME. Although the Board did not directly address this point, its determination is an implicit rejection of this argument. It did not accept the contention that there was no need for medical information in these circumstances.
Likewise, I am unable to accept the Union’s argument that the Employer has forfeited any right to medical information because of what happened in connection with the failed IME. That issue is the subject of a grievance. No evidence from the Employer has been presented on this issue, and a motion for interim relief is “not the time to examine the merits of the case.” OPSEU (Latimer), supra at p. 27, quoting OPSEU (Stewart) and Ministry of Correctional Services, GSB No. 1000/94 (Gorsky).
In the absence of any medical evidence, I am unable to conclude that the grievor should be placed on a paid leave of absence due to the stress and strain of the alleged harassment. At this point, it should be noted, the Employer is not pressing the grievor to return to work. On December 12, 2005, it rescinded the November 21, 2005 letter and placed her on a leave of absence without pay, pending the LTIP determination. That LTIP determination has now been made, and there is no evidence that any appeal has been filed. But the Employer has not indicated, one way or the other, if it expects the grievor to return to work or will allow her to remain on an unpaid leave of absence.
The Union contends that more conflict and grievances will arise if the grievor is required to return to work. That may be, but there is no evidence before me that the Employer will require her to return to work. Further, without medical evidence, there is no basis for me to conclude that the grievor is too ill to work or that she would suffer medically if she is returned to work. I am also not convinced that the prospect of additional conflict, in the absence of compelling medical evidence, would be a basis to require the Employer to provide a paid leave of absence. The situation where there are grievances before the Board, and new incidents occur which, in turn, are grieved happens quite regularly.
The Union argues that in Re OPSEU (Clarke), supra, the Board recognized that it may be reasonable, where feasible, to separate the parties when allegations of harassment occur. It argues that the same rationale applies here. In my view, Clarke is distinguishable on its facts. It does not stand for the proposition that an employee who alleges ongoing harassment should be placed on a leave of absence with pay. Rather, it stands for the proposition that the potential for conflict is a factor in determining the balance of harm.
In this case, the potential for conflict is a factor should the grievor be asked to return to work. So far, that has not occurred. But even then, it would only be a reason to separate the parties, if feasible, not necessarily a basis to order a leave of absence with pay.
Further, I conclude that the grievor’s losses – economic, human rights and dignity as well as her privacy concerns – may be fully addressed through an appropriate award of damages and interest, should she succeed on the merits. OPSEU (Union Grievance) and Management Board Secretariat, GSB No. 0610/02 (Petryshen). I do not find the grievor’s potential losses similar to the potential losses involved in Re Ontario (Management Board of Cabinet) and OPSEU, supra at p. 132, which Chair Stewart found “could not be remedied by an award of damages, should the Unions ultimately be successful.”
Turning to the potential harm to the Employer if the motion for interim relief is granted, I find that the harm would be significant. The harm is not particularly financial, although I would note that the Union is seeking to have the grievor compensated, for a potentially prolonged period, without attending work. Yet in OPSEU (Sammy), supra, the Board held that that “[i]f the Employer is ordered to compensate the grievors, it ought not to be so required without the right to require the grievors to attend at the workplace and discharge their duties.” Nevertheless, the Employer did not claim, and there is no evidence, that it would suffer financial hardship if the motion were granted.
Instead, the harm would be to the Employer’s employment accommodation and return to work policies, as well as its LTIP appeal process. Based on the evidence presented, the grievor has determined that she is unable to work in her home position, but has not provided any medical documentation to the Employer to support this claim. Nor did she provide any to the Board in connection with this interim motion.
The regular process for an employee in the grievor’s situation, when she has exhausted her STSP benefits, is to seek employment accommodation or apply for LTIP. The grievor has not sought accommodation. She did apply for LTIP, but her claim was rejected and she has not yet appealed. Granting an interim order that the grievor be placed on a paid leave of absence, pending the completion of this litigation, would have the potential to stop both processes. The Employer would not be able, if it so chose, to seek the grievor’s return to work, with or without accommodation. The LTIP review process, should the grievor choose to appeal, would become unnecessary. Significantly, the grievor would be given a greater benefit than she would receive under either the duty to accommodate or LTIP.
Under LTIP, an employee receives 66 2/3% of their salary. Under the duty to accommodate, the employer has an obligation to accommodate an employee, to the point of undue hardship, in her home position. If that is not possible, then the employer must look for alternative positions in the workplace and Ministry, followed by the Ontario public service. The employee has a duty to cooperate in this process, and to accept a reasonable accommodation. The accommodation, therefore, may not be an exactly equivalent position as the Union seeks in its argument in the alternative. As the Board held in Re OPSEU (Ranger), supra at 7: “There is never an absolute guarantee that accommodation will be achieved. The employer’s duty is to accommodate to the point of undue hardship.”
The Union contends, however, that the normal, regular processes are inapplicable given the extraordinary nature of this case and the harassment that the grievor has endured. The same argument was made in Re OPSEU (Latimer), supra. In that case, at p. 19, the Union argued that “[w]hile the employer was correct with respect to the normal circumstances which must be present in order for an employee to receive payment while off sick, this is definitely not a normal situation.” In its analysis, the Board agreed, stating at p. 27 that “[t]his is not a usual case. This is a very special case and a very special request in very unusual circumstances.” Nevertheless, the Board did not order the Employer to provide income to the grievor during the interim period. Instead, the regular processes – employment accommodation and an IME, and LTIP appeal – were required.
The Union also argues that the accommodation process and LTIP appeal process are completely separate and are not relevant to this proceeding. It argues that this motion is not seeking an order that the grievor be placed on LTIP or that she be accommodated. It submits that an LTIP appeal, if one is filed, and the accommodation process may proceed independently. Rather, it simply seeks an order to place the grievor on a paid leave of absence to separate the parties from each other in light of the specific history of this case. With respect, I cannot agree that the issues are so separate. Although the issues may be legally separate, the practical reality is that they are intertwined.
For similar reasons, I cannot accept the Union’s alternative position that the grievor be placed on a leave of absence with pay until the Employer can find her an equivalent position. Such an order would potentially usurp the employment accommodation process.
Conclusion
For all of the reasons stated, and following the case law, in particular Re OPSEU (Latimer), supra, the Union’s motion for interim relief is denied.
Issued at Toronto this 13th day of February, 2006.