GSB#2010-0006
UNION#2010-0211-0001
IN THE MATTER OF AN ARBITRATION
Under
THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT
Before
THE GRIEVANCE SETTLEMENT BOARD
BETWEEN
Ontario Public Service Employees Union (Deprophetis)
Union
- and -
The Crown in Right of Ontario (Ministry of Labour)
Employer
BEFORE
Owen V. Gray
Vice-Chair
FOR THE UNION
Val Patrick Ontario Public Service Employees Union Grievance Officer
FOR THE EMPLOYER
George Parris Ministry of Government Services Labour Practice Group Counsel
CONFERENCE CALL
October 19, 2010.
DECISION
1This decision addresses a dispute between the parties about the location at which a hearing in this matter should be held.
2In July 2010 this matter was scheduled for hearing in Toronto on October 19, 2010. Roughly a week before that date, the union sought the employer’s consent to move the hearing to St. Catharines/Thorold. The employer did not consent. It was then agreed that the hearing on the merits would be cancelled and that the issue of venue would be addressed in a teleconference.
3It seems to be common ground that:
a) The grievor is an Employment Standards Officer whose home position is in Hamilton. He lives in Niagara Falls.
b) Since some time in or before 2008 the grievor has been working primarily out of an office in St. Catharines. It is his position that he suffers from a medical condition that limits his ability to travel, and that his working out of the St. Catharines office accommodates that disability and should continue.
c) A 2008 grievance by this grievor is the subject of proceedings before another Vice-Chair of this Board, in which the grievor alleges harassment and discrimination. I am told that the issues in those proceedings relate to the alleged reaction of his manager to the grievor’s alleged disability and accommodation requirements, but may not require that the Board actually determine whether and to what extent the grievor requires accommodation by reason of disability. The hearings in that matter have proceeded in Hamilton on some days and in St. Catharines/Thorold on others. The hearings in St. Catharines/Thorold were held there at the request of the union. The employer consented to that request without prejudice to the question whether such arrangements were made necessary by the grievor’s medical condition.
d) In these proceedings the grievor alleges that, during a period subsequent to the one addressed in the other proceedings, his manager harassed him by repeatedly demanding medical information that the employer had already received and by requiring that he undergo an Independent Medical Examination (“IME”) that could not have provided any pertinent information that the employer did not already have. On that basis he seeks a finding that the manager was improperly motivated in asking those questions and in requiring the IME, and that that behaviour constituted a breach or breaches of the collective agreement for which he should be awarded various remedies.
4Both parties put before me documentation with respect to the restrictions that the grievor’s condition places on his ability to travel to work. The union relies particularly on a February 2010 letter from his doctor, which asserts that the grievor has “a medical condition which restricts his travelling time to no more than 50 km daily.” The employer relies particularly on reports flowing from the IME, which the grievor attended in May 2010 without prejudice to the position he takes in these proceedings. Those reports outline arrangements that the author believes would enable the grievor to drive himself to and from work in Hamilton. Employer counsel argues that the material addresses only the fatigue that the grievor suffers by driving himself to and from work, and that nothing in the material indicates that the grievor’s disability precludes his travelling by other means that do not involve his driving. He notes that the author of the IME report states categorically that the grievor “does not suffer from a medical condition that prevents him from taking public transit or carpooling,” and that the grievor travelled to the IME , which appears to have been held in Burlington, by GO Transit. In reply, the union says that the statement in the doctor’s note of February 2010 should be interpreted as a restriction on all forms of travel, whether or not they involve the grievor’s driving.
5In Barillari, 2006-1932 (September 23, 2008), Vice-Chair Carrier observed that the Board’s facilities in Toronto are, in a sense, the default hearing location. When one party proposes an alternate venue to which the other does not consent, the question of venue is to be resolved on a balance of convenience bearing in mind, among other things, the increased costs to the parties of the participants’ travelling to and using facilities at the alternate location. The Board further noted that if any participant has a medical condition that requires accommodation that fact may trump other considerations, but that need must be distinguished from mere anticipated discomfort:
However, in order for the balance of convenience to tip against other factors in favour of such a claim, the medical need for the accommodation must be clear. It is not enough, in my view, that one person, even a Grievor might be discomforted but for a change in venue. Rather, the need should be clearly established by way of some form of medical evidence which would stand up to reasonable scrutiny. In this case, the assertions of the Grievor that she requires an accommodation and the assurances of her counsel that she would benefit somehow from the change in venue are not sufficient to weigh against the other factors which favour continuation of proceedings in Toronto. ... the Employer and the Board are entitled to assess the medical information in order to determine from their own perspectives the nature and extent of the needs of the person who seeks such an accommodation.
... The refusal of Ms. Barillari to provide medical information in support of her request for accommodation renders that factor a nullity.
6Here, both parties have provided medical information. It does not seem disputed that the grievor has a genuine disability that results in his being more greatly fatigued by the activities of life and work than others would be in similar circumstances. The parties disagree about whether the medical information supports the union’s contention that the grievor’s disability precludes him from travelling beyond St. Catharines by any method, whether that method requires effort on his part or not.
7The material before me is not an adequate basis for an assessment of the truth of that contention, particularly not without cross-examination of the grievor’s doctor to clarify the meaning of his February 2010 letter. In assessing the balance of convenience in these circumstances I must weigh the implications if the contention is true and the venue is not changed against the implications if the contention is not true and the venue is changed. In the former case, the grievor is effectively denied a hearing. In the latter, the other participants are inconvenienced, the parties incur some additional costs and, if it becomes apparent that the contention was not true, there may be some impact on credibility as well.
8The parties agree that there should be no initial attempt to mediate a resolution: wherever it is held, the hearing will be an arbitration hearing. Given what I have been told the grievance is about, the union will be proceeding first and the grievor will be its first and, likely, only witness. One would expect that part of the hearing to be the most stressful and fatiguing for any grievor, particularly one with the disability he claims. The union case as described largely involves comparing documents – the documents in which the manager asked the impugned questions and the earlier documents from which the union says the employer had already received the answers to those questions – to determine whether one can infer that the questions and IME request were improperly motivated. With proper preparation, the hearing of evidence – perhaps even the entire hearing – might be completed in a day. Certainly the union’s case should be completed on the first day, unless it is allowed to morph into something quite different from what was described to me.
9In these circumstances I have concluded that the first day of hearing should be held in St. Catharines or Thorold. In consultation with counsel I will set two hearing days, the second being at least a month after the first. If at the end of the first hearing day the second one is still needed, any dispute the parties may then have about the venue for the second day can be addressed at that time.
10This decision is not, and should not be regarded as, a determination that the grievor is actually unable to travel beyond St. Catharines/Thorold. The Board’s administrative staff may book both hearing days at a facility in St. Catharines/Thorold if the booking can be cancelled without cost on a month’s notice. Their doing so should not be regarded as a prejudgment of any issue concerning the venue for the second day.
Dated at Toronto this 19th day of October 2010.