GSB#2011-0674, 2011-0675, 2011-0676, 2011-0677, 2011-0678, 2011-0679, 2011-0680,

2011-0681, 2011-0682, 2011-0683, 2011-0684, 2011-0685

UNION#2011-0368-0034, 2011-0368-0035, 2011-0368-0036, 2011-0368-0037,

2011-0368-0038, 2011-0368-0039, 2011-0368-0040, 2011-0368-0041, 2011-0368-0042,

2011-0368-0043, 2011-0368-0044, 2011-0368-0045

IN THE MATTER OF AN ARBITRATION

Under

THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT

Before

THE GRIEVANCE SETTLEMENT BOARD

BETWEEN

Ontario Public Service Employees Union (Kolmann)

Union

• and -

The Crown in Right of Ontario (Ministry of Community Safety and Correctional Services)

Employer

BEFORE

Loretta Mikus

Vice-Chair

FOR THE UNION

Richard Blair Ryder Wright Blair & Holmes LLP Barristers and Solicitors

FOR THE EMPLOYER

Peter Dailleboust & Jonathan Rabinovitch Ministry of Government Services Labour Practice Group Counsel

HEARING

April 5, 2012.

Decision

1The grievor, Carol Kolmann, is a Correctional Officer 2 at the Central East Correctional Centre in Lindsay, Ontario. In the late eighties, she suffered a work related back injury that left her with a permanent disability with accompanying work restrictions. She returned to work in an accommodated position in Admitting and Discharge (A&D) in the Control Room on the day shift.

2In 2007 she was involved in a motor vehicle accident that resulted in more workplace restrictions. Since her return to work from that accident she has been in the same accommodated position. In 2011 she was informed by the Employer that she was being transferred to the Radio Room in another accommodated position. This was a newly created position that involved the distribution and collection of radios used in the institute. The grievor objected to this transfer and filed a grievance. The A&D control room has windows that face internally into the facility and to the outside. The Radio room is slightly smaller than the Control room and has no windows. The grievor provided the Employer with a medical note from her physician stating that she suffered from claustrophobia and could not work in the Radio Room. The Employer requested an independent medical examination (IME) and placed the grievor on sick leave pending the results.

3The grievor subsequently filed several grievances alleging discrimination, failure to accommodate, harassment and other grounds. The Union has raised a procedural motion that would have the Employer proceed first since, it says, the Employer knows why it decided to transfer the grievor.

4This preliminary award deals with that motion and relates to grievances filed between February and July of 2011 that relate to this issue.

5Mr. Richard Blair, counsel for the Union, took the position that there could be many reasons for the transfer and only the Employer knows what drove the decision to move the grievor from an accommodation that had worked since 2004. The Employer is aware or believes what change in circumstances warranted disrupting an arrangement that had been working successfully for such a long time.

6The Union submitted that, because the grievor was not given an explanation or reason for the change, she is left in the position of calling evidence on the Employer’s motives. It would be a more effective use of the GSB’s resources to require the Employer to explain its decision so the Union will know the case it must meet.

7The Union relied on the following cases: Ontario Human Rights Commission and OPSEU (Kerna grievance) [2003] O.G.S.B.A. No 33 (GSB # 0944/02) (Briggs); Re Air Canada and Canadian Auto Workers Union, Local 2213 (2001), 2001 CanLII 62103 (CA LA), 101 L.A.C. (4th) 311 (Dissanayake); Re Unilever NA and Teamsters, Chemical, Energy and Allied Workers, Local 132 (2002), 106 L.A.C. (4th) 361 (Springate)

8Mr. Jonathan Rabinovitch, counsel for the Employer, took the position that the Employer had the right to assign the grievor to any modified position or accommodation that met her restrictions. The accommodation in the Radio Room met that standard. The only difference between it and the A&D position was the window. It is the Union that is asserting that this new accommodation was contrary to the Human Rights Code. The onus is on the Union to prove its allegations.

9It relied on the following cases: Ministry of Community and Correctional Services and OPSEU (Hart-Day) (2011), GSB# 2007-1117 (Dissanayake); Ministry of Revenue and OPSEU (Alviani) (2010), GSB# 2007-3700 (Dissanayake); Renaud v. Board of School Trustees No. 23 (Central Okanogan) and Canadian Union of Public Employees, Local 523 1992 CanLII 81 (SCC), [1992] 2 S.C.R. 970; Re Ministry of Community and Correctional Services and OPSEU (Warling) (2008), GSB # 2005-3765 (O. Gray) and Re Ministry of Health and Long-Term Care and OPSEU (Lauzon) (2005), GSB # 2003-0247 (Mikus).

REASONS FOR DECISION

10Many of the cases referred to above deal with the duty to accommodate for an employee who has established a need for new or modified work. From them certain principles emerge that have been accepted and applied by arbitrators. The initial onus is on the grievor who must prove she/he has a disability that requires a return to work in a position that meets any restrictions have been identified by her physician. The employer bears the burden of establishing that it has made reasonable efforts to accommodate the disability of an employee to the point of undue hardship.

11The issue before me, however, is not whether the Employer had failed to accommodate the grievor but rather whether her transfer from the control room to the Radio Room was a violation of the collective agreement and the Ontario Human Rights Code. The grievor had been accommodated for several years and the Employer asserts that it had to right to move her to another appropriate accommodation. Again, that is not the question I am asked to resolve at this time. The only issue is whether the Employer should be required to proceed first in the proceedings.

12The Union maintains that the Employer is in the best position to know what prompted the move and it would be more efficient for it to go first.

13In the Air Canada case (supra), the Board stated at page 315 as follows:

I agree with Arbitrator Picher’s reasoning that it is the employer that has knowledge of issues related to accommodation. The employer has information as to what medical information was available to it from the various medical professionals and what cooperation and information, if any, was provided by the grievor and/or the union. It is the employer who has exclusive knowledge of its operational requirements and what positions within and outside the bargaining unit were available for consideration in accommodating the grievor.

For those reasons it found it was appropriate for the employer to proceed first.

14In the Unilever case 9supra), the Board found that the union had established discrimination by proving that the employer had denied work to the grievor because of a disability. In those circumstances, since it bore the onus of proving it was not in violation of the collective agreement or HRC, it should proceed first.

15In the Kerna case, the grievor was an Investigation Officer for the Ontario Human Rights Commission. As an accommodation she was required to close 40% fewer files than other Investigations Officers. A year later she was told that her accommodation in that position would end and that in the future she would be assigned the duties of Intake Officer. It was a lower paid position and her salary would be red-circled. She grieved she had been discriminated against. The union asked for an order that the employer proceed first since it alone knew why it had abandoned the earlier accommodation and transferred her to a lower paid classification.

16The Board noted that the issue before it was whether the accommodation the grievor had been given was appropriate. The Board’s decision was based on specific provision of the collective agreement that stated the accommodated position must be “appropriate”, which is not the case in the instant grievance.

17Those cases are of limited assistance to me except to reaffirm the general principles regarding the duties of the employer, the union and the grievor to cooperate in arriving at a suitable accommodation. In the instant case, the grievor has been accommodated in a position that the Employer asserts conformed to her medical restrictions at the time. This is not a case where the Employer possesses exclusive knowledge of circumstances in the workplace that the Union does not have. The job duties of the Radio Room position are available to the Union as are the grievor’s medical restrictions. There is no disagreement that the onus is on the Union to show that the two are incompatible with her condition and therefore unsuitable. The onus is on the Union to show that this position is not a proper accommodation.

18This case does not raise an issue of undue hardship, which would require information of circumstances within the exclusive knowledge of the Employer. The Employer does not claim to have reached that point in its search for accommodation. Its position is that it has placed the grievor in an appropriate position consistent with her restrictions. Since the Union challenges this assertion, it bears the onus of showing the Employer is wrong.

19The Union also submits that the grievor has provided new medical information that supports her claim that she cannot work in the Radio Room, namely a diagnosis of claustrophobia. The Employer argued that the IME did not support her physician’s opinion and the accommodation meets her current restrictions. In accordance with the legal principle that he who asserts must prove, it is up to the Union to show that the new medical information prohibits the grievor from working in the Radio Room.

20Finally, the grievances allege harassment and discrimination on numerous grounds. The particulars of those allegations are clearly in the knowledge of the grievor and the Union. The Employer can only respond to those allegations after it has heard the details of the incidents that the grievor claims gave rise to the grievance.

DECISION

21For the reasons set out above, the Union’s motion is dismissed. The hearing will reconvene on the dates previously agreed to by the parties and the Union will proceed first to call its evidence.