GSB#2012-0877

UNION#2012-0313-0010

IN THE MATTER OF AN ARBITRATION

Under

THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT

Before

THE GRIEVANCE SETTLEMENT BOARD

BETWEEN

Ontario Public Service Employees Union (Sheehy)

Union

• and -

The Crown in Right of Ontario (Ministry of Health and Long-Term Care)

Employer

BEFORE

Loretta Mikus

Vice-Chair

FOR THE UNION

John Brewin Ryder Wright Blair & Holmes LLP Barristers and Solicitors Counsel

FOR THE EMPLOYER

Thomas Ayers Ministry of Government Services Legal Services Branch Counsel

CONFERENCE CALL

December 6, 2013

Decision

1The grievor, Lisa Sheehy, filed a grievance alleging the Employer has violated the collective agreement and the Ontario Human Rights Code of Ontario by failing to accommodate her return her to work in accordance with the restrictions dictated by her physician.

2This award deals with a motion by the Employer to adjourn the hearing scheduled for Tuesday, December 10, 2013 because there is an appointment for the IME on the same day and it submits it would be more productive to meet after the IME report is completed. The Union takes the position that there are outstanding matters, including issues about the substance and form of the IME.

3The grievor returned to work in January of 2012 and there was a dispute at the time about what restrictions had been imposed by her physician. In any event she did return to work on terms that the Employer maintains were in compliance with her physician’s orders and has continued to work on those terms to the present.

4In April of 2013 the grievor and the Union consented to an IME and selected a neurologist from the approved roster of specialists used by the parties. The grievor requested that the assessment be conducted in Woodridge which was problematic because only one physician was prepared to travel. An appointment was scheduled for Woodridge which was later cancelled by the grievor. She asked that the appointment be relocated from Woodridge to Barrie and declined the Employer’s offer to drive her to and from her appointment. Another was scheduled but was cancelled by the physician. That IME was rescheduled to December 10, 2013, the same day that had been scheduled by the GSB for mediation.

5I was the position of the Employer that they would not be in a position to discuss or mediate issues of accommodation until the parties have considered the report of the neurologist. It also advised the Board that it would be required to pay a cancellation fee of $900.00 and that it was possible that the neurologist would be unwilling to reschedule the IME outside of the GTA.

6The Union took the position that the IME had not been properly discussed by the parties. The Union advised the Employer that it had not had an opportunity for input into the scope and nature of the assessment. At the time the Union agreed to the appointment it was not aware that it could participate in the process. From what I understand the Union and the grievor did not formally object to the appointments; the cancellations were done by the grievor and the physician. Nevertheless there are clearly matters of dispute between the parties that must be resolved. The question is when.

7From the Employer’s perspective, it will have to pay the $900.00 cancellation fee and risk being unable to reschedule on the grievor’s terms. More significantly, the grievor will continue to work under the 2012 restrictions until a more current medical review can assess her present needs. On the other hand the Union has made it clear that it has issues with the physician and the process of the IME, which could raise questions about its validity.

8The Employer’s issue respecting the timing and location of the next IME can be raised and resolved at mediation on December 10, 2013. The content and form of the IME can be dealt with at the same time. There is apparently an issue of lost sick pay which would be an appropriate issue for mediation.

9In my view the day can be well used to prepare the setting for the major issue between the parties, that is the future need for accommodation.

10For these reasons the Employer’s motion is denied and the hearing will proceed on December 10, 2013 as scheduled.