GSB#2011-2308
UNION#11-38
IN THE MATTER OF AN ARBITRATION
Under
THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT
Before
THE GRIEVANCE SETTLEMENT BOARD
BETWEEN
Canadian Union of Public Employees - Local 1750
(Policy)
Union
- and -
The Crown in Right of Ontario
(Workplace Safety and Insurance Board)
Employer
BEFORE
Daniel Harris
Vice-Chair
FOR THE UNION
Jim Morrison
Canadian Union of Public Employees –
Local 1750
National Staff Representative
FOR THE EMPLOYER
Gurjit Brar
Workplace Safety and Insurance Board
Counsel
HEARING
June 22, 2012.
Decision
1This is an individual grievance heard on June 18, 2012 pursuant to the Board’s Decision of January 20, 2012 (attached as Appendix “A”). Accordingly, it has no general precedential value. As noted in that decision, there is also a policy grievance related to scheduling. These individual decisions deal with alleged human rights violations. The grievances remain part of the policy grievance.
2All of these grievances arise out of changes to the collective agreement from the last round of bargaining. Those changes included the elimination of the option of compressing the work day by working through lunch hours and breaks, the elimination of eighteen sick days, of which up to three days could be used as personal days, the introduction of nine wellness days, which may be taken as whole or part days as the employee sees fit and modifications to the flex-time provisions to allow for four flex-time options.
3This grievance arises out of the Employer’s decision to impose a general rule that operational staff must commence work no earlier than 7:30 a.m. Its decision and the rationale for it are set out in a memorandum to operations staff dated September 27, 2011, which reads as follows:
Since 2008, the WSIB has demonstrated a stronger and sharper focus on understanding and delivering what really matters to customers, built on the principle that reintegration into the workplace is the best outcome. Understanding this also means rigour and discipline in our approach – to deliver fair benefits and services that are cost-effective and achieve the best possible outcomes for workers and employers.
In order to improve our availability for customer contact, we have decided that, as a general rule, staff should commence work no earlier than 7:30 a.m. Exceptions will be considered if the unique job function or circumstance requires the employee to start earlier than 7:30 a.m.
The main reason for this decision is that, to ensure success, our business model and approach to case management has changed significantly. The New Service Delivery Model, with its focus on early and regular contact with workers and employers has created “talking jobs”. The prior approach, which focused more on the gathering of paper documents has been replaced by significant interpersonal contact and worksite interventions. This enables us to better execute on our goals of return to work, recovery and service excellence. In addition, we have created greater specialization which has increased the need to interact with one another more than ever before.
To be successful, we need to optimize our availability to customers and to one another. We continue to see service gaps with respect to our availability to clients. This has been noted by both employers and workers. The new requirement on start time will help us achieve our customer service objectives.
Thank you for your support and cooperation.
4Pursuant to article 25.02(b), the Employer established a process by which employees were able to choose a flex-time option. By extending their working day employees accumulate sufficient hours to permit them to take other days off work. The following represents the available options:
Flex Work Arrangement Extend Work Time
4 days to attain the 5th day off work 1 hour, 47 minutes
9 days to attain the 10th day off work 47 minutes
14 days to bank 1 day as vacation time 30 minutes
19 days to bank 1 day as vacation time 22 minutes
5This matter claims that the Employer’s rule discriminates against the grievor on the ground of disability, contrary to the Ontario Human Rights Code. The grievor seeks accommodation in the form of being permitted to start work at 7:00 a.m. rather than 7:30 a.m.
The Grievor’s Circumstances
6The grievor, Ms. C. is a 23 year employee who has a knee disability. Prior to the schedule change she worked from 7:00 to 3:00 pm. She said that her knee disability makes public transit untenable. She drives to work and says that the change in schedule puts the timing of her commute into heavier traffic, thereby lengthening the time she spends in the car. This causes increased stiffness in her knee.
7The grievor presently works a 20 over19 flex schedule, which means that she works from 7:30 to 3:52 pm. However, in the morning she still leaves home at the same time as previously in order to avoid the heavier traffic.
8The grievor’s real difficulty is the parking of her automobile. She has a handicapped parking permit that allows her free, on-street parking. When she worked from 7:00 am to 3:00 pm she was able to park on Front Street, as parking was permitted until 3:30 pm. Now that she works until 3:52 pm she must park further away on a side-street. She is unwilling to pay to park in the underground lot of the WSIB building unless she is unable to find a free surface parking spot. She arrives early enough that she generally finds an on-street parking space. Accordingly, she now has to walk to the WSIB building, which takes her approximately seven minutes and strains her knee. The walk would also appear to be contrary to her physician’s advice set out in his letter of November 18, 2011. I note that his letter supports her request to start at 7:00 am “to facilitate her travel accommodations/parking”.
9Another consequence of the grievor finding an on-street parking space off of Front Street is that the new spot is oriented such that her afternoon route to the Gardiner Expressway is less direct, further extending her evening commute. If she paid to park underground she would save seven minutes walking and the extra time it takes to get to the Gardiner Expressway. She would also put less stress on her knee.
10In my view any additional strain on the grievor’s knee is largely the result of her preference not to pay for parking. That is her choice, and the consequences of that choice do not fall on the Employer. Also, the Employer cannot be held responsible for the volume of traffic on the roads. It has determined the hours of work and the grievor must make arrangements to comply with them. The grievor has maintained the timing of her morning commute. She has also elected to participate in the 20 over 19 flex schedule. That is a choice that extends her day by 22 minutes, which puts her into heavier traffic. Again, that is a choice she has made and the consequences are hers to bear.
11There is no discrimination against the grievor evident in the application of the Employer’s change of hours. Accordingly, there is no duty on the Employer to accommodate the grievor,
12This aspect of the grievance is dismissed. The grievance remains part of the policy grievance.
Dated at Toronto this 23rd day of July 2012.
APPENDIX “A”
GSB#2011-2308
UNION#11-38
IN THE MATTER OF AN ARBITRATION
Under
THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT
Before
THE GRIEVANCE SETTLEMENT BOARD
BETWEEN
Canadian Union of Public Employees - Local 1750
(Union)
Union
- and -
The Crown in Right of Ontario
(Workplace Safety and Insurance Board)
Employer
BEFORE
Daniel Harris
Vice-Chair
FOR THE UNION
Jim Morrison
Canadian Union of Public Employees - Local 1750
National Staff Representative
FOR THE EMPLOYER
Michael Smyth
Heenan Blaikie LLP
Counsel
HEARING
December 19, 2011.
Decision
1This is a Union grievance which takes issue with the implementation of the flex-time language of the collective agreement. It came on for hearing on December 19, 2011. At that time the parties entered into discussions regarding the management of this case as well as the individual grievances that have arisen related to the implementation of the flex-time language.
2First, it was agreed that I would take jurisdiction over the individual grievances. At present there are some 147 such grievances. The following is the process by which these cases will be heard.
3Any individual grievance relating to flex-time will initially go to a first step meeting in the normal course. That will permit an exchange of views on the subject and provide for the identification of any grievances that are related to the flex-time issue.
4If the grievance is not resolved at the first step, it will be referred to the GSB to be heard by me. The parties will identify the grievance as such so that GSB staff can make the necessary arrangements. If the parties agree that the issues in any particular grievance are entirely encompassed by the issues in the policy grievance, they will refer the grievance to the GSB to be held in abeyance pending the outcome of the policy grievance. Absent such agreement, if the matter comes before me and I determine that the issues are entirely encompassed by the policy grievance, I will adjourn it pending the outcome of the policy grievance. Where a matter contains individual and policy issues, the individual issues will go forward as set out below.
5All individual issues relating to the implementation of the flex-time language will be heard where practicable, at the work location of the grievor. It is to be expected that more than one grievance will be heard in a day, and the parties should be prepared to hear as many in a row as is possible.
6No later than two weeks prior to the hearing, the Union will provide to the employer a will-say statement from the grievor, and any other witnesses, along with any documents upon which it will rely.
7At the hearing, the Employer may cross-examine the maker(s) of the will-say statements and provide any viva voce evidence it requires. The parties will have the right to redirect examination of its witnesses and cross-examination of the opposite party's witnesses. Both parties will be able to make brief submissions.
8The Decisions of the Board may be oral or written as is appropriate. There will be internal consistency in the Decisions, but there will be no general precedential value beyond the group of individual grievances.
9Any concerns or modifications to the process may be addressed by teleconference call.
10The policy grievance will continue to be heard in parallel proceedings. We will schedule five days at this juncture. One single day followed by successive two-day blocks. Those dates will be scheduled through the GSB staff, as will any dates set for the hearing of the individual grievances. The parties will be responsible for arranging suitable hearing space where the matters are heard on location.
Dated at Toronto this 20th day of January 2012.