GSB#2005-1318

UNION#2005-0618-0035

IN THE MATTER OF AN ARBITRATION

Under

THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT

Before

THE GRIEVANCE SETTLEMENT BOARD

BETWEEN

Ontario Public Service Employees Union (Theriault)

Union

• and -

The Crown in Right of Ontario (Ministry of Children and Youth Services)

Employer

BEFORE

Barry Stephens

Vice-Chair

FOR THE UNION

Scott Andrews, Tim Mulhall Ontario Public Service Employees Union Grievance Officers

FOR THE EMPLOYER

Nicholas Sapp Ministry of Government Services Centre for Employee Relations Employee Relations Advisor

HEARING

October 19, 2011.

Decision

1The parties agreed to present this grievance in accordance with Article 22.16 of the collective agreement, and this decision is without prejudice or precedent.

2In December 2004 the grievor was pregnant, and her doctor provided a medical certificate restricting the grievor to working between the hours of 07:00 and 20:00 in order to avoid the risk of slipping and falling when conducting rounds on the property. On December 29, the grievor agreed to an accommodation plan stipulating that she would work a shift from 07:00 to 15:00. However, the implementation of plan was delayed until after the holiday season, and was to begin on January 10. On January 3 at 19:35 the grievor was at work on an evening shift, when she slipped on ice and fell, sustaining an injury.

3The union alleges the employer breached the grievor’s duty to accommodate by delaying the implementation of the accommodation plan. The result was that the grievor sustained the very type of injury her restrictions were meant to avoid. The employer responds that the grievor was working within the time frame stipulated by her restrictions, and for that reason the fall cannot be attributed to the accommodation plan having been slightly delayed.

4After reviewing the submissions of the parties and the collective agreement, it is my conclusion that the grievance should be allowed. The grievor would not have been working the shift in question had the accommodation plan not been delayed. There is no evidence that an immediate introduction of the accommodation plan would have caused the employer undue hardship. As a result, the grievor is awarded $2,500.00 in damages.