GSB# 2005-1424, 2005-2223
UNION# 2005-0410-0001, 2005-0410-0002
IN THE MATTER OF AN ARBITRATION
Under
THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT
Before
THE GRIEVANCE SETTLEMENT BOARD
BETWEEN
Ontario Public Service Employees Union (Gregoire)
Union
- and -
The Crown in Right of Ontario (Ministry of Community and Social Services)
Employer
BEFORE
Deborah J. D. Leighton
Vice-Chair
FOR THE UNION
Peggy Smith Eliot, Smith Barristers and Solicitors
FOR THE EMPLOYER
Diane Gillies Counsel Ministry of Government Services
HEARING
March 1, 2006.
Decision
Mr. John Gregoire, an Income Support Clerk with the Ministry of Community and Social Services, grieves that the employer has not implemented a Memorandum of Settlement (MOS) signed by the parties on May 11, 2005. Paragraph seven of those minutes provide that I am seized of any issues arising out the implementation of the settlement. Thus this matter proceeded before me in Ottawa on March 1, 2006. The exhibits were entered by agreement of the parties. There were no issues of fact. After hearing the submissions of the parties I made an oral ruling. This decision is therefore a written record of the oral order made on March 1, 2006.
In May 2005 the grievor was seeking a settlement that would set out a process that would assist in the accommodation in his present position and for training for the Customer Service Representative (CSR) position. The MOS signed in May 2005 set up a seven-step process to that end. The first step in the process provides:
- The grievor agrees to undergo an independent medical/health examination by a qualified physician of the parties’ choice and agrees to provide a release of information to the employer respecting the prognosis revealed by this medical/health examination.
When the grievor subsequently received the “release” form from the employer, he raised two objections. Mr. Gregoire was concerned that Manulife was to act as a facilitator in setting up the appointment with the proposed medical experts. He was also concerned about the broad language of the release of his medical information. Thus he refused to sign the release and the process agreed to under the settlement was stymied. Without the Independent Medical Examination (IME), the Employer could not take the next step in the settlement.
Union’s Submission
Peggy Smith submitted that the grievor was seeking direction from the board as to how to satisfy the first step of the settlement, given the concerns he identified. Ms. Smith noted that the union’s position was that until the first step of the settlement is achieved, that is the IME, the parties cannot deal with the other provisions of the MOS. The union sought an order from the board that the grievor be permitted to seek a referral from his family physician to the Mood Disorders Program at the Royal Ottawa Hospital, where he was assessed in 2000. The union agreed that the grievor’s current “job spec” and a CSR “job spec” should be forwarded with the request for the doctor’s assessment. The union also sought an order that the parties be required to reconvene before the board after the IME has been forwarded to the employer representative.
The Employer’s Submission
Counsel for the employer, Diane Gillies, stated that the Ministry wanted the grievor to go forward with the IME and the employer was willing to assist the grievor in that goal. Manulife were acting only as a facilitator to set up the IME and would not have received any of the grievor’s medical information. That said the Ministry was content to forego that process for one that would make the grievor comfortable.
Thus the Ministry agreed to the proposal that the grievor seek a referral from his family doctor to a specialist at the Royal Ottawa Hospital for the IME. If this is not possible for some reason then the Employer submitted that it would provide a list of psychologists, experienced in providing accommodation plans, so that the grievor might select one. The Ministry also reserved the right to ask for further information on appropriate accommodation for the grievor, if the IME by the doctor at the Royal Ottawa was not clear or sufficient.
The Ministry reiterated its agreement, noted in the MOS, that Mr. Gregoire will be provided with a one-day leave of absence with pay in order to attend the IME. Ms. Gillies confirmed that the Ministry would recompense the union for the account of the Royal Ottawa Hospital, should it be rendered.
Order
Given the submissions this board made the following order orally on March 1, 2006. The grievor seeks accommodation in his current position and in order to get the training necessary to obtain a promotion to the CSR position. Both parties recognize that the first step in that accommodation process is the IME, as agreed to in the MOS of May 11, 2005. Thus, the grievor’s request to seek a referral from his family doctor to the Royal Ottawa is hereby granted. Should that process fail the grievor is hereby ordered to cooperate with the employer in the selection of a suitable medical expert to do the IME. This selection process shall not use Manulife as a facilitator and the release of information form shall be reviewed and approved by the union and the grievor before the grievor signs it.
The union acknowledged after the oral order, that should the Royal Ottawa IME proceed, the medical report would be sent to the union, and it would forward the report, in full, to the employer.
With regard to the union’s request for an order requiring the parties to reconvene after receipt of the IME, I declined to make this order on the grounds that the parties may be able with the information to go forward independently with an accommodation plan. Should further issues arise, either party may ask for the board to reconvene, as I am seized of the MOS of May 11th, 2005 and of any issues that may arise out of the implementation of this order.
Dated at Toronto this 14th day of March 2006.