GSB#2007-3700

UNION#2008-0716-0002

IN THE MATTER OF AN ARBITRATION

Under

THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT

Before

THE GRIEVANCE SETTLEMENT BOARD

BETWEEN

Ontario Public Service Employees Union (Alviani)

Union

• and -

The Crown in Right of Ontario (Ministry of Revenue)

Employer

BEFORE

Nimal Dissanayake

Vice-Chair

FOR THE UNION

Jennifer Fehr Ontario Public Service Employees Union Grievance Officer

FOR THE EMPLOYER

Omar Shahab Ministry of Government Services Labour Practice Group Counsel

HEARING

May 14, 2009, April 27, May 11, May 12, June 3, December 17, 2010.

Decision

1Ms. Chantal Alviani (“grievor”) is employed by the employer as an Employer Health Tax Field Auditor at its Thunder Bay Office. She was off work from April 26, 2007 as a result of a rotator cuff injury. She was accommodated to her satisfaction and returned to work on February 25, 2008. She filed a grievance dated January 30, 2008 alleging that the employer contravened the collective agreement and the Ontario Human Rights Code by failing to accommodate her earlier.

2The grievor’s manager, Ms. Ruth McLaughlin (Audit Manager, EHT), worked out of Ottawa. She communicated with staff at Thunder Bay by e-mail and telephone, and also visited the Thunder Bay office several times a year. Ms. McLaughlin had the primary responsibility for the grievor’s accommodation.

3The grievor testified that she did not “feel right” when she woke up on April 23, 2007. That day and the next, she called in sick. On April 25th she went to a walk-in medical clinic. Dr. D. A. Anthes at the clinic ordered x-rays and ultra sound and prescribed some medications for her. The grievor remained off work and submitted a series of medical notes from Dr. Anthes and other physicians requiring her to remain off work covering the period April 26 to the end of September 2007. All of these notes merely stated that she was sick and provided no other information. During this period she received short term sickness benefits.

4On May 11, 2007 the grievor commenced physiotherapy treatment at St. Joseph’s Hospital upon referral by her family physician, Dr. Richard Almond. The grievor testified that while attending the hospital she came upon a book about injuries resulting from faulty work stations and about ergonomic assessments of work stations. She inquired from hospital staff how she can have an ergonomic assessment of her work station at the Ministry done. She was advised that such an assessment would cost approximately $1,500.00, and that normally employers pay for it. The grievor testified that she recalled “discussing often” with Ms. McLaughlin about having an ergonomic assessment done on her work station in the following weeks. However, she could not recall specifically when those discussions took place or exactly what she told Ms. McLaughlin.

5Soon after she went off work, the grievor applied for WSIB benefits. In a medical note dated June 20, 2007, Dr. Almond approved her attendance at an “ergonomic assessment through the WSIB on July 10, 2007”. She attended on July 10, 2007 and spent approximately 30 minutes at her work station with a WSIB ergonomist. She demonstrated to the ergonomist how she performed her duties on a daily basis, and where the material she used was located. The ergonomist also reviewed with her, the physical demands analysis and her job description. On July 12th, a WSIB claims adjudicator notified her that her application for WSIB benefits was denied on the grounds that based on the report of the ergonomist she had concluded that her injury was not work related.

6The grievor testified that when she discussed the need for an ergonomic assessment of her work station with Ms. McLaughlin, she expected an assessment separate from the WSIB assessment, because she believed that WSIB ergonomic assessments are not done impartially, and are designed to justify denial of benefits. Following the denial of the WSIB application she repeatedly told Ms. McLaughlin that the employer should conduct a separate assessment. When union counsel asked how Ms. McLaughlin responded, the grievor replied that she could not specifically recall, but she understood that Ms. McLaughlin would be “looking into it”.

7With the approval of her physiotherapist, the grievor returned to work on August 13, 2007, subject to certain restrictions. She worked the full shift, but at the end of the day experienced an extremely sore shoulder. She felt that she had this recurrence because she had returned to work prematurely and because her work station was not ergonomically suited for her. She went off again, and did not return to work until February 25, 2008. She testified that subsequent to August 13th she continued to request Ms. McLaughlin for an ergonomic assessment, but could not recall what Ms. McLaughlin’s response was. Nor did she recall when those requests were made.

8The grievor testified that the first time Ms. McLaughlin requested any medical information was on September 12, 2007, when she received a letter and attachments from her. The letter reads in part:

It is the Ministry’s policy to support employees whose injury, illness, or disability is affecting their ability to do their job and meet job-related requirements. To assist us in facilitating your return to work further medical information is required. Please provide the enclosed letter to your doctor and sign and date the attached consent form. Please note that your signature must be witnessed by another party. It is your responsibility to forward the attached consent and medical information request to your physician.

Your physician’s response is required by October 1st, 2007. Should there be any problem in meeting this deadline, please advise me immediately. Any charges for this letter and medical form will be assumed by the Ministry of Finance in accordance with the OMA fee schedule for such a service, so any invoice should be remitted to my attention for payment.

The attachments included a letter addressed to Dr. Almond, which in turn included a number of questions about the grievor’s ability to perform specific duties within her job description. The grievor signed the release and provided the documentation to Dr. Almond promptly.

9However, Dr. Almond did not complete and return the documentation. Instead he submitted the following letter addressed to Ms. McLaughlin, which was dated October 1, 2007, but received by the employer only on October 25, 2007:

Ms. Chantal Alviani is fit to return to work in a modified capacity as defined in Shawn Grant’s (physiotherapist) attached note. This will be undertaken on October 1, 2007. These restrictions are imposed due to the ongoing issue of rotator cuff tendinopathy to her right shoulder. These restrictions are temporary in nature and will be reviewed at the time of her next visit which is in approximately three weeks.

A number of questions that you have asked relate to the limitations imposed. Again, I am supportive of the limitations and restrictions as defined by Mr. Grant. These restrictions will be reviewed on a regular basis and changes will be forthcoming. It is suggested that an ergonomic assessment of her workplace would be appropriate to assist her recovery and prevent further issues. She is capable of regular attendance. She will not be taking any medication which may affect her ability to work and the specialty care she is receiving is by myself and Mr. Grant.

I trust that this provides you with the information you require.

10The grievor agreed with union counsel that the foregoing letter where Dr. Almond wrote, “It is suggested that an ergonomic assessment of her workplace would be appropriate to assist her recovery and prevent further issues”, was the first time she provided any medical support for her request that the employer conduct an ergonomic assessment of her work station.

11It is common ground that Dr. Almond’s approval of the grievor’s return to work “as defined in Shawn Grant’s (physiotherapist) attached note” refers to the following recommendation contained in Mr. Grant’s report dated October 1, 2007;

At this time we are recommending that Ms. Alviani return to work on a modified work schedule. Upon reviewing her PDA it is suggested that Ms. Alviani return to work at 4 hours per shift. Frequent positional changes must be made. (No static positions greater than 20 mins.). Also no lifting greater than 5 lbs should be performed on a non-repetitive basis. These restrictions should be followed for a period of 2 weeks and then Ms. Alviani will be re-assessed and further recommendations will be given.

12Therefore, it is clear that by October 25, 2007, the grievor’s physiotherapist as well as her family physician had recommended that she return to work on the foregoing basis. The grievor testified that when Ms. McLaughlin talked to her about returning to work subject to the restrictions recommended by her physiotherapist and her family physician, she refused and took the position that she would not return to work until an ergonomic assessment of her work station is done and all of its recommendations implemented.

13The parties are in disagreement as to when the grievor first requested that the employer do an ergonomic assessment on her work station. According to the grievor, she made this request to Ms. McLaughlin in late May or early June 2007, and continued subsequently to make repeated requests. She testified that her request was that the employer carry out its own ergonomic assessment separate from the one undertaken by the WSIB, because she did not trust the WSIB to be impartial. She discussed with the union about appealing the WSIB decision denying her claim, but at the same time continued to request Ms. McLaughlin for an assessment of her work station.

14Ms. McLaughlin testified that she was certain that the grievor did not request an ergonomic assessment by the employer until her WSIB claim had been denied on July 12, 2007. Ms McLaughlin’s testimony is that the grievor expected that the WSIB ergonomic assessment would result in a finding that the work station caused her injury, and that the WSIB would make recommendations designed to make her work station ergonomically suitable for her. Based on contemporaneous notes she wrote on her diary, Ms. McLaughlin testified that the grievor first requested an ergonomic assessment by the employer on August 15, 2007. Again based on her notes, she testified that the next day she made inquiries from Human Resources about arranging an ergonomic assessment of the grievor’s work station, and was advised that a medical note was required before any ergonomic assessment of her work station could be undertaken. On September 9, 2007 she verbally advised the grievor about the need for a medical note and on September 12th forwarded the documentation to be completed and returned by the grievor’s doctor.

15Based on the evidence before me I conclude that the grievor first requested that the employer conduct its own ergonomic assessment only on August 15, 2007, after the adverse decision by the WSIB, and after her discussion with the union about appealing the denial. A large number of e-mails that passed between the grievor and Ms. McLaughlin were filed in evidence. There is no e-mail indicating such a request by the grievor any time earlier. Moreover, Ms. McLaughlin had a practice of taking notes on her diary about conversations she had with employees on work issues. Numerous such notes pertaining to conversations with the grievor about her accommodation were filed in evidence. The first mention of a request by the grievor for an ergonomic assessment is in Ms. McLaughlin’s notes dated August 15th. Given her practice, Ms. McLaughlin’s testimony is credible that if the grievor had made such a request, that would have been significant. She would have noted such a conversation on her diary, and followed up with Human Resources. She strongly disagreed with union counsel’s suggestion that it was possible that she forgot about the request. On the other hand, the grievor’s testimony was very general. She could not recall when she made the requests, what she told Ms. McLaughlin in making any of the requests or what Ms. McLaughlin’s response was. I find Ms. McLaughlin’s testimony to be more reliable on this issue.

16In considering whether the time taken by the employer to accommodate the grievor was reasonable, it is convenient to adopt the following time periods used by union counsel during her submissions:

(A) The time taken to conduct an ergonomic assessment from the date the grievor requested one.

(B) The time taken to obtain a report following the ergonomic assessment.

(C) The time taken from the date the ergonomic assessment report was issued, to the implementation of its recommendations.

(D) The time taken, following acquisition of all items required, to schedule a return to work meeting and ultimately returning the grievor to work.

17The union conceded that an employer is entitled to a reasonable period of time to accommodate an employee. It did not fault the employer for the time periods (B) and (C) above. However, it argued that the time taken with respect to (A) and (C) above was unreasonable, and was the result of the employer not treating its duty to accommodate seriously and “dragging its heels”. While the union focussed only on time periods (A) and (C) above, in determining the grievance the Board must decide, not whether any one step in the accommodation process was unreasonably delayed, but whether the overall process was delayed unreasonably. If unreasonable delay is found, the Board must proceed to consider whether the employer was responsible for that overall delay as would constitute a failure to comply with the employer’s duty accommodate under the collective agreement and the Ontario Human Rights Code. Therefore, the evidence relating to the whole process must be considered.

18A. The period between the grievor’s request and the conduct of the ergonomic assessment

I have already concluded that the grievor first requested that the employer carry out its own ergonomic assessment, on August 15, 2007. However, while the grievor herself made that request, until October 25, 2007 no medical opinion was provided to the employer, suggesting that an ergonomic assessment of her work station should be done. On October 25, 2007, the employer became aware that the grievor’s physiotherapist as well as her family physician approved her return to work at 4 hours per shift, subject to certain physical restrictions. I find that this approval was not made subject to a condition that an ergonomic assessment must be done and recommendations implemented before she returned at 4 hours per shift. While the grievor testified that she told Dr. Almond that she wanted an assessment done before she returned to work, it is clear that Dr. Almond did not impose such a condition. He declared the grievor “fit to return to work in a modified capacity as defined in Shawn Grant’s (physiotherapist) attached note”. Mr. Grant’s note makes no reference at all to an ergonomic assessment. I conclude that the only way to read Dr. Almond’s reference to an ergonomic assessment in his letter is that he suggested that an assessment be done as a precautionary measure, after the grievor’s return to work on the terms outlined by the physiotherapist. The evidence is that the grievor was initially inclined to return as recommend by the medical professionals. However, supported by her union representative, the grievor subsequently took the position that she would not return, despite the recommendation by the medical professionals, until an ergonomic assessment is completed and its recommendations implemented.

19Ms. McLaughlin’s notes establish that immediately upon receiving the grievor’s request on August 15, 2007 she sought advice from Human Resources on how to go about arranging an ergonomic assessment. She also located an ergonomist through the internet, but he was not prepared to go to Thunder Bay. However, she took no further action because Human Resources advised her shortly after that medical information on the grievor’s restrictions was needed before proceeding.

20On October 25th Ms. McLaughlin received the letter dated October 1st from Dr. Almond, wherein he supported the grievor’s return to work at 4 hours per shift, subject to the restrictions outlined by the physiotherapist, and also suggested that an ergonomic assessment be done. Upon receipt of Dr. Almond’s letter on October 25, 2007, Ms. McLaughlin acted promptly. An ergonomist was located and the assessment was completed on November 6, 2007.

21B. The period between the completion of the assessment and the issuance of the report.

The union concedes that the employer acted promptly upon receipt of Dr. Almond’s letter on October 25, 2007 and that the ergonomic assessment was done (November 6, 2007) and the report obtained (November 25, 2007) in reasonable time.

22The time taken to implement the recommendations in the report

The ergonomist report contained a number of recommendations designed to make the grievor’s work station suitable for her. These included some reorganizing around her work station and the purchase of certain items, including a foot rest, a note book holder, a back pack and an adjustable chair. The evidence is that the reorganizing of the work station was completed promptly. In order to acquire the various items required for the grievor, Ms. McLaughlin forwarded a copy of the ergonomist’s report to the Ministry’s Facilities Management Unit (FMU), which had the responsibility for the purchase of furniture and equipment required by staff. Ms Susan Baynham, Operations Coordinator, had the responsibility for coordinating between managers and the FMU for purposes of purchasing required items. Ms. Baynham testified that in purchasing items required by Ministry staff, she had to follow a particular procedure. She had been provided a list of suppliers that had bid and were registered with the Ministry as vendors of record (VOR). In addition she maintained her own list of suppliers of various products. When a purchase was necessary, the procedure required her to first find a VOR who was able to supply the item. If no VOR who can supply the required item is identified, she went to her own list of suppliers.

23Ms. Baynham testified that she received a copy of the ergonomic assessment report relating to the grievor on November 29, 2007. However, she did not take any steps to order the various items required for the grievor until December 27th due to a number of reasons. She stated that at the time she had received several purchase requests from managers. She also had a few days of vacation in that period. The report with regard to the grievor had recommended that a specific brand (Steelcase) and model of chair be ordered through a company called POI Office Interiors. Even though POI was not a vendor of record, she was prepared to order the chair through POI. She communicated several times with the POI branch in Ottawa, believing that getting the chair to Thunder Bay from Ottawa would be faster than placing the order through the POI branch in Markham. It took a week for POI in Ottawa to advise her that they were unable to supply the chair, and that the order should be placed through POI in Markham. However, she was aware that POI in Toronto shuts down a week prior to Christmas day and re-opened only in the new year. Therefore, she felt that until the new year, POI would not be in a position to receive any orders. The evidence indicates that the order for the chair was placed on January 8, 2008 and was delivered in Thunder Bay on January 31, 2008.

24Ms. Baynham testified that when requisitioning the purchase of supplies, managers would often advise that the items were required urgently in order to return an employee who is off sick back to work. When so advised, Ms. Baynham would give that order priority. As she put it, she would “put a rush on it and try to attend to it within a few days”. However, in this case, until December 29, 2007, she was not made aware that the grievor was off sick. She testified that had she known that, she would have tried to get the required items earlier.

25Under cross-examination, Ms. Baynham testified that had she known that the employee was off, she could have got the order for the chair in to POI in Markham before the Christmas shut down. She agreed that if the order had been placed in the first week of December “with a rush on it”, it is possible that the chair would have been delivered in the first week of January. The evidence is that the order for items other than the chair were not delayed by any shut down. Those items were also ordered on January 8, 2008 and were delivered in one week. However, the chair was not delivered until January 31, 2008.

26D. The time taken between the acquisition of the required items, the scheduling of a return to work meeting and returning the grievor to work

The evidence is that Ms. McLaughlin was prepared to return the grievor to work as soon as the required items had been received. She testified that since October she had been seeking a meeting with the union and the grievor, to agree upon the hours the grievor would work upon her return. The evidence indicates that a return to work meeting was scheduled for January 25, 2008. However, the grievor subsequently requested that the meeting be cancelled because she had a doctor’s appointment that day. Then, Mr. Len Mason, the grievor’s union representative, took the position that a return to work meeting can only take place after all of the recommendations in the ergonomic assessment report had been implemented. On January 31st, Ms. McLaughlin informed the grievor that all the required items were in place and that she would like to arrange the grievor’s return to work. The grievor promptly contacted Mr. Mason.

27On February 1, 2008 Mr. Mason e-mailed Ms. McLaughlin, informing that he was “fairly busy”, but that he was free to meet on February 12 or 19. The same day Ms. McLaughlin responded, suggesting that the grievor return to work before the meeting is held, but indicating her willingness to travel to Thunder Bay on February 12th for the meeting. Mr. Mason replied the same day taking the position that the grievor ought not to return to work until a plan was in place. However, he did not confirm his agreement to hold the meeting on February 12th. On February 5th, Ms. McLaughlin e-mailed Mr. Mason informing that the grievor was also available to meet on February 12 and that she was waiting for Mr. Mason to confirm that the meeting can go ahead on that day. Mr. Mason replied on February 5th, apologizing for the delay in getting back. He also informed that he was “unable to meet” on February 12th, and indicated his availability February 19th to 22nd. Ms. McLaughlin suggested meeting on February 21st and Mr. Mason agreed. The meeting took place on February 21, 2008 and a return to work plan was agreed upon, and on February 25, 2008, the grievor returned to work.

28The union also led some additional evidence, based upon which it is suggested that the employer ought to have accommodated the grievor earlier than it did. The grievor testified that while she was off, on July 27, 2007 Ms. McLaughlin forwarded to her a copy of a document entitled “Ergonomic Recommendations – on site visit Ottawa Regional Taxation Office March 30, 2001”, prepared by an ergonomic consultant. Upon reading the document, which was dated April 6, 2001, the grievor felt that most of the recommendations made therein were applicable to her. She recalled speaking to Ms. McLaughlin subsequently about the recommendation that desk heights should be lowered for people who are shorter than 5’10”. However, Ms. McLaughlin took no action regarding the grievor’s work station.

29Ms. McLaughlin testified that the document resulted from a site visit and assessment of the auditors’ office in Ottawa. Since she expected at the time that the grievor would soon be returning to work, she felt that the grievor would find the document helpful in setting herself up. In cross-examination, Ms. McLaughlin agreed that the document mentioned that work surfaces that are too high can cause injury and that most workers who are under 5’10” find the typical 29 inch desks too high. Ms. McLaughlin was asked why the grievor’s desk height was not lowered as recommended in that document, when she was aware that the grievor was considerably shorter than 5’10”. Ms. McLaughlin pointed out that the document only stated that “most”, but not all, workers under 5’10” find 29 inches too high. She testified that she was herself under 5’10” tall, but did not want her desk height lowered. She also pointed out that the document also proposed alternatives to lowering the height of desks, such as raising the height of the chair and providing a foot rest.

30The grievor also testified that while conducting the assessment on November 6, 2007, the ergonomist, Mr. Peter Watson, kept commenting “about what was wrong with my work station and what was needed to be done”. Based on her recollection of Mr. Watson’s comments during the one hour assessment, the next day the grievor e-mailed Ms. McLaughlin, listing a number of “recommendations which will be outlined in detail in the forthcoming ergonomic assessment”, and expressing her hope that this information would expedite her accommodation. The grievor testified that when the report came out on November 25, 2007, there were “no significant differences” between the recommendations contained therein and the expected recommendations she had communicated to Ms. McLaughlin on November 7th.

31The grievor also testified that while waiting for the employer to purchase the chair recommended in the ergonomic assessment report, she took the initiative to “google the chair”. She discovered that the particular chair could be purchased on line in Thunder Bay. On January 25, 2008, she advised Ms. McLaughlin that the chair could be purchased locally within one week. On January 26th, Ms. McLaughlin e-mailed the grievor, seeking details as to which supplier in Thunder Bay had the chair, and requesting that the grievor forward the information for ordering the chair on line from that supplier. The grievor did not respond to Ms. McLaughlin’s e-mail, but on January 29 e-mailed the ergonomist, Mr. Watson, with copy to Ms. McLaughlin, advising him that Ms. McLaughlin was “having difficulty securing the purchase and delivery” of the chair and some of the other items, and inquiring from Mr. Watson whether all of the items are available through local suppliers. She asked that Mr. Watson assist Ms. McLaughlin by recommending suppliers. On January 30th, Mr. Watson replied, informing the grievor, inter alia, that “Steelcase products are available from Lowerys locally”. The same day, the grievor forwarded Mr. Watson’s e-mail to Ms. McLaughlin, who promptly replied, advising the grievor that the chair ordered through POI was expected to arrive in Markham on January 29 from the U.S.A.

DECISION

32In determining the merits of the grievance, I first note that the parties are agreed that the grievor did suffer from a disability which engaged the employer’s duty to accommodate her to the point of undue hardship. Secondly, I note that the integrity of the grievor, Ms. McLaughlin and Ms. Baynham is beyond question. I found that each of them testified honestly and truthfully, and that any conflict in the testimony is the result of their different perceptions and recall. I have attempted, as best as I can, to determine what is more probable in light of all of the evidence and information before me.

33A good starting point is the recognition that as a general principle the duty to accommodate in a unionized environment is a duty shared by the employer, the disabled employee and his/her union. Central Okanagan School District No. 23 v. Renaud, 1992 CanLII 81 (SCC), [1992] 2 S.C.R. 970 (S.C.C.). In Re Toronto Board of Education, [2000] O.L.A.A. No. 326 (Davie at para. 115, the law is well summarized as follows:

115 In my view Renaud does not stand only for the proposition that the employee’s obligation is to respond reasonably to offers of accommodation initiated by the employer. The employee’s obligation to facilitate the accommodation extends to both the “search for accommodation” and the “implementation of the … proposal”. The employee may not have the initial duty to originate a solution, but must “facilitate the search” for that solution. In my view, that obligation to facilitate necessarily includes an obligation on the part of the employee to identify his/her restrictions, and the need to accommodated, and must include keeping the employer apprised of one’s status and ability to perform work, or modified work. It is difficult to see how the employer can meet its duty to accommodate, or determine if the employee can be accommodated without undue hardship through, for example, giving the employee a different assignment, or by changes to the nature and design of the workplace, if the employer is not aware of the needs of the employee which must be accommodated.

34The union presented a number of arbitration awards where it had been held that the employer was in breach by failing to accommodate the grievor in a timely fashion. Union counsel referred to the length of delay in those cases which led to the finding of breach. However, whether the time period taken to accommodate an employee is unreasonable must necessarily depend on the particular facts of each case. In this regard, the nature of the employee’s disability, the duties and responsibilities of the position held by the employee, the nature and the timing of the medical information as to the restrictions resulting from the disability provided to the employer, whether suitable accommodation is readily available having regard to the nature of the employer’s operation, the level of cooperation and participation on the part of the employee and his or her trade union in the accommodation effort, and the sophistication and experience of the employer in accommodation issues, are all relevant considerations.

35It is not suggested by the union, and the evidence does not indicate, that the employer at any time questioned the fact that the grievor needed accommodation, or that it resisted the grievor’s request for accommodation. The union’s contention is that the employer did not treat the grievor’s need for accommodation seriously and that as a result the accommodation took an unreasonable length of time to be achieved.

36The union’s position is that the employer took an unreasonable time to arrange an ergonomic assessment from the time the grievor first requested one. Based on the evidence, I have concluded that the grievor’s first request was conveyed on August 15, 1007. The ergonomic assessment took place on November 6, 2007. Thus the assessment was done some 2½ months after the grievor’s request. The question is whether this passage of time was unreasonable, and if so, whether the delay was due to indifference or fault on the employer’s part, so as to constitute a failure to comply with its duty to accommodate.

37In this regard the union submitted that even if the grievor did not make a direct request for an ergonomic assessment until August 15, 2007, the employer should have made changes to the grievor’s work station earlier, based on the April 2001 ergonomic recommendations that had been made with respect to the audit office in Ottawa. It was argued that the fact that Ms. McLaughlin chose to forward this document to the grievor in July 2007 indicates that at this time she was aware that some of those recommendations, particularly those relating to the height of desks, were applicable to the grievor. I find it unreasonable for the union on the one hand to fault the employer for not conducting an ergonomic assessment on the grievor’s workstation specifically, and at the same time to contend that the employer should have proceeded to make changes to her work station, acting on recommendations made with respect to a different office some six years earlier. I place no significance on that evidence. This is more so, because the grievor had not at this time presented any medical evidence to the employer suggesting that her problems were related to her work station. The duty to accommodate does not obligate an employer to do such an assessment merely because an employee who is disabled requests one. That obligation is triggered only where the employer is provided medical substantiation that the grievor’s difficulties are related to her work station. In the present case, not only did the grievor fail to provide any medical evidence to the employer suggesting the need for an ergonomic assessment of her work station, on July 12, 2007 the WSIB had concluded, following an ergonomic assessment of the grievor’s work station, that the grievor’s problems were not work related.

38The evidence is clear and undisputed that the first medical support for an ergonomic assessment of the grievor’s work station was contained in Dr. Almond’s letter dated October 1, 2007, which was not received by the employer until October 25, 2007. Even that letter did not recommend that an assessment be done urgently before the grievor returned to work. Instead, it suggested such an assessment in order “to assist her recovery and prevent further issues”, after the grievor returns to work under the restrictions set out by her physiotherapist. Nevertheless, within two weeks of the receipt of that doctor’s suggestion, the ergonomic assessment took place on November 6th, 2007 and the report was obtained on November 25th.

39It is true, as the grievor testified, that the employer could have requested the grievor for medical substantiation as soon as she requested an assessment in mid-August 2007. That likely would have expedited the process. However, its failure to take that initiative cannot be the basis of a finding that it failed to comply with its duty to accommodate. The law is clear that the initial obligation is on the employee to provide the medical information supporting a request for accommodation. In Re Sobeys Inc., [2008], 92 C.L.A.S. 270 (Reilly) at p. 2, the arbitrator wrote:

Irrespective of the submissions made by the Grievor regarding the confusion surrounding his WSIB claim and the extent of his physical limitations, it is clear that he failed in his obligation to provide the Employer with clear and concise medical information with respect to the extent of his medical restrictions and physical limitations. It is not enough for an employee to state that he or she is in need of accommodation and expect the Employer to know exactly what work is within his or her ability. An employer, in most cases, need not accommodate an employee to modified employment unless the extent of the accommodation required is properly documented and confirmed. It makes abundant sense that an Employer is made aware of the extent of an employee’s physical limitations and then considers and applies same when assigning duties; to do otherwise would only invite re-injury. I therefore find no merit to the grievance as argued and it is therefore dismissed.

40Similarly in Re Dashwood Industries, (2007) 161 L.A.C. (4th) 124 (Barrett) at p. 128, the arbitrator states:

Where accommodation is sought, the employee is required to provide a minimum of sufficient information to explain the employee’s restrictions, and the nature of accommodation sought. If the employee fails to meet this initial obligation, the allegation of discrimination, and of violation of the collective agreement, cannot succeed.

41I find that in this case the employer’s failure to explicitly request the grievor for supporting medical information, in any event, must be viewed in light of the knowledge it had since July 12, 2007, that following an ergonomic assessment of the grievor’s work station the WSIB had concluded that her medical issues were not work related. Its failure to take the initiative by requesting for medical substantiation to pursue a further assessment cannot be seen as indifference to its duty to accommodate. As soon as the grievor met her obligation by providing some medical support for her request, the employer took prompt action and the assessment took place within two weeks.

42The evidence is that the ergonomic report was received by the employer on November 25, 2007. The recommendations were implemented on January 31, 2008. The union suggested that without waiting for the formal report from the ergonomist, the employer should have acted upon the grievor’s e-mail dated November 7, 2007, outlining the recommendations likely to be included in the report. The grievor based this information on verbal comments made by the ergonomist while carrying out the assessment. I find that it was not unreasonable for the employer to not take any steps, which would necessarily involve time and/or money, until the report it had paid for was received. This is more so considering that the report itself was issued in just over two weeks. While many of the recommendations the grievor had anticipated were in fact included in the report, the employer would have had no assurance at the time, that would be so. Besides, the grievor’s outline was very general, while the report recommended items with detailed specifications and particular brands and models. If Ms. McLaughlin had purchased items based on the grievor’s e-mail, those items may not have met the detailed specifications contained in the report.

43I also attach no significance to the evidence that the grievor informed Ms. McLaughlin that the chair was available on line locally. It is not reasonable to expect individual managers, particularly in government, to go shopping for items needed for accommodation of employees. That would not only be cumbersome, it would lead to concerns of potential abuse and misuse of public funds. Particularly for a public sector employer, it is reasonable to resort to a transparent procedure, at least initially. In any event, the evidence does not substantiate any wrong-doing on Ms. McLaughlin’s part, even if it is assumed that she had an obligation to pursue the grievor’s suggestion. The evidence is that she attempted to follow up with the grievor. She promptly e-mailed the grievor requesting information required for ordering of the chair on line. Instead of providing that information, the grievor requested the ergonomist to assist Ms. McLaughlin. By the time Mr. Watson provided Ms. McLaughlin with the information (he only informed that Lowerys carry Steelcase products, not the particular chair), Ms. McLaughlin had been advised that the chair had been ordered and schedule to arrive in Markham the previous day. Therefore, little or no time would have been saved, if Ms. McLaughlin had pursued Mr. Watson’s lead at that stage.

44The evidence establishes that while Ms. McLaughlin forwarded the Ergonomic Report to the FMU promptly upon its release on November 25, 207, Ms. Baynham essentially sat on it until December 27, 2007. Ms. Baynham testified that she was quite busy at the time and also had a few days off. However, she candidly admitted during cross-examination that had she been aware of the urgency, that the supplies were needed in order to return an employee who was off sick back to work, she could, and would, have given it priority. She would have “put a rush” on those orders. She also agreed that if she had done that, she could have got the order in to the Markham supplier before the Christmas shut down, and that the chair likely would have been delivered by the end of the first week of January 2008.

45It appears from the evidence that this delay was primarily the result of a flaw in the procedure in place for requisitioning supplies needed for accommodation of employees. The evidence is that material and supplies required by managers routinely to furnish and equip offices, as well as supplies required for accommodation of disabled employees are requisitioned using the same documentation. Ms. Baynham testified that the requisitioning documentation is not designed in such a way so as to allow managers to advise that the items in question are required for accommodation purposes or to return an employee who is off sick back to work.

46Ms. Baynham, however, also testified that it was not unusual for managers to inform her that for various reasons, including the accommodation of a disabled employee, supplies were urgently required. In these circumstances, Ms. Baynham would give those requisitions priority. She agreed that if Ms. McLaughlin had informed her that the items were required urgently to accommodate an employee who was off, she would have treated that order with urgency and the items likely would have been delivered three weeks earlier.

47I have set out the evidence relating to the time period that elapsed between the acquisition of the items required for the grievor’s accommodation on January 31st 2008 and the return of the grievor to work on February 25th. As noted, the grievor returned to work within four days of the return to work meeting. The delay was in the scheduling of the return to work meeting. The evidence is that it was the union that insisted that a return to work meeting cannot be held until all of the required items were in place. No evidence was adduced as to why a return to work plan could not be discussed while waiting for the delivery of the items. In any event, the evidence is that Ms. McLaughlin was prepared to meet earlier. When the items were in place, Ms. McLaughlin was very flexible. She was prepared to travel from Ottawa to Thunder Bay for the meeting, at the convenience of the union and the grievor. A meeting was fixed for January 25th, but was cancelled at the grievor’s request. Then the union representative agreed to meet on February 12, but later indicated that he was not available until February 21st. The Board understands that there likely were justifiable reasons why the grievor and/or the union were not available until February 21st to meet. However, given the position advanced by the grievor and the union that they were desirous of returning to work urgently and their allegation that the employer was not acting fast enough, one would expect them to demonstrate a greater sense of urgency in scheduling the meeting earlier than they did. A significant delay resulted from their unavailability to meet earlier.

48Approximately sixteen weeks elapsed between the date of release of the ergonomic report (November 25, 2007) and the grievor’s ultimate return to work on February 25, 2008. Of those sixteen weeks, three weeks of delay could have been avoided by the employer. That is, had Ms. McLaughlin indicated to the FMU that the items were urgently required for accommodation of an employee, the process would have been expedited by three weeks. The other thirteen weeks of delay did not result from any fault on the part of the employer.

49In all of the circumstances of this case, I do not find in the first place that a time period taken to return the grievor to work from the time medical information was first received suggesting that the grievor’s problems may be related to her work station, was excessive. Moreover, only a small portion of the total delay is attributable to the employer. The evidence indicates that if the employer had done everything perfectly, the grievor would likely have returned to work three weeks earlier than she did. However, the duty to accommodate does not obligate the employer to be perfect. It is required only to be reasonable. In all of the circumstances I do not find that the employer acted unreasonably so as to justify a finding that it failed to comply with its duty to accommodate the grievor in a timely manner.

50The Board appreciates the frustration of the grievor about her inability to return to work earlier. The Board also sympathises with the grievor with respect to the financial hardship that may have resulted from her inability to return to work earlier. However, the evidence does not substantiate a finding that Ms. McLaughlin did not treat the grievor’s accommodation seriously, as the union suggests. To the contrary, she did not resist or challenge the grievor’s claim that she had a disability or her request for accommodation. Immediately upon receiving a suggestion from the grievor’s physician that her problems may be related to the ergonomics of her work station she took action. Her failure to explicitly indicate that the items were required urgently, when seen in light of all of her other actions in support of the grievor’s accommodation, does not justify a finding that she showed indifference to the grievor’s need for accommodation. While she may have not done everything perfectly, overall her conduct was not unreasonable so as to constitute a contravention of the duty to accommodate.

51As a result, I conclude that there was no breach of the duty to accommodate and the instant grievance is hereby dismissed.