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
Michael Smyth Workplace Safety and Insurance Board Counsel
HEARING
June 6, 2012.
Decision
1This is the second of four individual grievances heard on June 6, 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 grounds of family status, contrary to the Ontario Human Rights Code. The law in this area continues to develop. Having reviewed the jurisprudence submitted by the parties, I adopt the test originated by Arbitrator Jesin in Power Stream Inc. and I.B.E.W., Local 636 (Bender) 2009, 186 L.A.C. (4th) 180 (Jesin). This case stands for the proposition that, for discrimination to be found, there must be a serious interference with a substantial parental or other family obligation. Arbitrator Allen also reviewed the authorities in Customs and Immigration Union and A.W.U., Unit 15 (Loranger) 2011 CanLII 70608 (ON LA), 2011, 205 L.A.C. (4th) 343 (Allen). Her summary of the test is at paragraphs 41 through 44 as follows:
41It is now trite law to state that absent discrimination on a prohibited ground, there is no duty to accommodate. There must first be a prima facie case of discrimination. Campbell River and Johnstone agree on that point but differ on what constitutes a prima facie case.
42In Campbell River, the BCCA found:
that a prima facie case of discrimination is made out when a change in a term or condition of employment imposed by an employer results in a serious interference with a substantial parental or other family duty or obligation of an employee [at para. 39].
43In Johnstone, the FCTD (affirmed by the FCA) found that the BCCA decision had been criticized for “conflating the threshold issue of prima facie discrimination with the second-stage bona fide occupational requirement (BFOR) analysis” [at paras. 29 – 31]. The FCTD noted that the Campbell River analysis led to a “secondary or lesser status” for family status discrimination. It also failed to recognize that conflicts between employment obligations and parental obligations would most often arise from a change within the family, rather than a change to a condition or term of work. Thus the Johnstone test is:
The fact that the Applicant was adversely affected by the Respondent’s policy is sufficient to establish a prima facie case of discrimination [at para. 31]
44In Power Stream, arbitrator Jesin developed an amalgam of the two tests. He criticized the Johnstone test as being too broad. For example, he argued that employment obligations and family obligations are often in conflict. An employer should not be considered as having breached the Code if it orders mandatory overtime and an employee has to miss a child’s championship game or school play, as a result, however, he accepted that most changes would originate in the family, rather than from an employer rule. Arbitrator Jesin’s test for a prima facie case is therefore that there be a “serious interference with a substantial parental obligation’ [at para. 59].
6On the basis of the foregoing, before there is a duty on the Employer to accommodate the grievor, the Union must establish that the rule that staff not begin work earlier than 7:30 has seriously interfered with the grievor’s family obligations.
The Grievor’s Circumstances
7The grievor, Ms. W, grieves the decision of the Employer to deny her request to start work at 7:00 a.m. on the basis that it discriminates against her with respect to family status. She currently works from 7:30 a.m. to 3:30 p.m. She does not participate in flex-time because she cannot stay late. She has been with the WSIB for 23 years. Her younger son is 14 years old and has been diagnosed with attention deficit hyperactivity disorder for which he receives medication. She has arranged for him and his older brother to be supervised in the morning before they leave for school. She says that there is no support system for them after school. She testified that her son’s medications begin to wear off at the end of the school day; as they do, he becomes a danger to himself and to others. Unsupervised, he has on occasion caused damage to the family home.
8The older son has been diagnosed with attention deficit disorder. He recently began working part-time after school. He is not available to supervise his brother and could not be trusted to do so. The grievor also said that she did not feel it was his responsibility to do so.
9There is no evidence that the grievor has tried to arrange any form of after school supervision for her younger son. Indeed, she said it would have to cost something and she was not willing to pay. She drives to work from her home in Thornhill, which she says takes 1 ¼ hours. She says that the TTC is too unreliable. She says that her son is permitted to stay at school until 4:00 p.m. and has a twenty to thirty minute walk to get home. School ends at 3:30.
10The grievor described herself as a morning person. Prior to the schedule change, the grievor was permitted to work from 6:50 a.m. to 2:50 p.m. She also took advantage of the compressed breaks prior to their discontinuation. She said she would like that practice to continue as well.
11In the absence of any efforts by the grievor to arrange for or even to explore the possibility of supervision for her son in the afternoons, it is not possible to find that the work schedule has seriously interfered with the grievor’s family responsibilities. There may be options available that are simply unexplored. Unless the grievor can establish such serious interference, discrimination has not been established and no duty to accommodate arises.
Dated at Toronto this 20th 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.