GSB#2011-3942
UNION#2012-0108-0032
IN THE MATTER OF AN ARBITRATION
Under
THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT
Before
THE GRIEVANCE SETTLEMENT BOARD
BETWEEN
Ontario Public Service Employees Union (Kaufman)
Grievor
- and -
The Crown in Right of Ontario (Ministry of Community Safety and Correctional Services)
Employer
BEFORE
Michael V. Watters
Vice-Chair
FOR THE GRIEVOR
Mihad Fahmy Peggy Smith Barristers and Solicitors Counsel
FOR THE EMPLOYER
Susan Munn Ministry of Government Services Legal Services Branch Counsel
HEARING
May 8, 2013.
DECISION
1This proceeding arises from the grievance of Ms. Dana Kaufman dated February 16, 2012. The grievor at all material times was a Correctional Officer at the Elgin Middlesex Detention Centre (EMDC). Her grievance reads, in part:
STATEMENT OF GRIEVANCE
I grieve the Employer has violated my rights specifically but not exclusively under articles 2.1, 3.1, 9.1 and 21.1 of the C.A. and any other Acts, Codes or Legislation that may apply.
- Unjust Dismissal
SETTLEMENT DESIRED
To be reinstated immediately.
To be accommodated properly.
To be made whole in all respects.
Any other remedy an Arbitrator may see fit.
2At the hearing held on May 8, 2013, the Employer advanced a motion to dismiss the grievance on the basis that the Union had failed to raise a prima facie defence to the declaration of abandonment made by letter of February 14, 2012 pursuant to section 42 of the Public Service of Ontario Act, 2006. For purposes of the motion, the Employer was prepared to accept the statement of the Union’s particulars as the latter’s best case. Simply stated, it was the Employer’s position that the motion could be adjudicated through reference to the particulars without the need to receive any viva voce evidence. In contrast, the Union’s position was that evidence should be heard relating to the abandonment issue, as well as other issues concerning the duty to accommodate and an unresolved harassment complaint. The above-mentioned particulars are incorporated into this Decision.
3By letter dated January 16, 2012, the grievor was informed that the Employer considered she was on an unauthorized absence from the workplace from October 3, 2011 onwards. The grievor was directed to return to work on January 30, 2012 and was told that, due to the length of time she had been absent from the workplace, the Employer required her to produce a medical certificate from her doctor setting out that she was medically, physically and psychologically fit to return to her “full-time, full duties” position as a Correctional Officer at the EMDC. The grievor was further advised therein that if her absence continued without an approved leave beyond two (2) weeks from January 30, 2012, the Employer would deem her to have abandoned her position with the Ontario Public Service.
4The Employer’s subsequent letter to the grievor dated February 14, 2012, under the signature of Ms. Denise Scrivano, Superintendent of the EMDC, reads, in part:
You did not attend for this shift on January 30, 2012, nor did you provide the Employer with the requested medical documentation. On January 30, 2012, you left me a voice message on my office telephone setting out that you had called and would call me back. To date, you have not called me back.
As I have not received any documentation from you following my letter of January 16, 2012, you have not contacted me (other than the above-noted voice message) and due to your failure to attend for your regularly scheduled shift on January 30, 2012, I am writing to advise you that in accordance with s.42 of the Public Service of Ontario Act, I am declaring you to have abandoned your position in the Ontario Public Service and your employment with the Crown has ceased as of the date of this letter. The Employer also considers your continued unauthorized absence to be just cause for dismissal.
There was no dispute at the hearing that the authority to make the declaration of abandonment had been properly delegated to Ms. Scrivano.
5Section 42 of the Public Service of Ontario Act, 2006 provides as follows:
(1) If a public servant appointed by the Public Service Commission is absent from work without approved leave for a period of two weeks or more, the Commission may declare, in writing, that the public servant has abandoned the position and that his or her employment by the Crown is terminated.
(2) When a declaration with respect to a public servant is made under subsection (1), the termination takes effect and the public servant ceases to be employed by the Crown.
6The Union’s particulars in paragraphs 2 to 15, 22 and 31 address the grievor’s attendance at work; her health issues; and the Employer’s response to same, including its efforts to accommodate the grievor. I cite the following paragraphs for purposes of establishing a contextual framework for assessing the Employer’s motion:
On October 30th, 2007, the Grievor underwent an IME with Psychologist Dr. James L. Murray at Toronto Western Hospital. To date, neither the Grievor nor the Union has received a full copy of Dr. Murray’s Medical Report. From the portions received, Dr. Murray opines that the Grievor suffers from Major Depressive Disorder with Anxiety Features, and recommends “a time-limited psychological treatment plan of 12 sessions during a 3-month period of time”. Dr. Murray advised that the Grievor should be encouraged to contact her EAP provider to initiate the treatment plan.
At no time was the Grievor advised by the Employer that Dr. Murray had recommended a psychological treatment plan or any further training. In fact, the first time Ms. Kaufman became aware of this recommendation was at the parties’ first mediation on June 29, 2012.
At no time was the Grievor advised by the Employer that she should contact the EAP provider in order to initiate the treatment plan.
There was no subsequent follow up by the Employer regarding the recommended psychological treatment plan or training set out in portions of the IME report.
The Union also takes the position that the Employer’s failure to properly implement the recommendations contained in Dr. Murray’s IME report regarding psychological treatment, negatively impacted Ms. Kaufman’s chance of successfully reintegrating in the workplace and amounted to a failure to accommodate to the point of undue hardship.
7The Union’s particulars in paragraphs 16 to 30 address the grievor’s allegation of inappropriate and improper conduct on the part of a Lieutenant at the EMDC. The alleged behavior led the grievor to file a complaint with then Superintendent Neil Neville. The following paragraphs are relevant for contextual purposes:
“26.The Grievor’s anxiety and stress was significantly affected by the knowledge both that Mr. Stricko may have a history of similar misconduct, and that she would be required to participate in an investigation at the EMDC.
The Grievor and Mr. Loftus met with Mr. Richard L. Campbell, who was assigned to conduct an investigation into Ms. Kaufman’s allegations regarding Mr. Stricko. The Grievor described the interactions she had had with Mr. Stricko and her feelings of discomfort. Mr. Campbell also listened to two recordings of phone messages Mr. Stricko had left the Grievor.
Following the meeting with Mr. Campbell, neither the Grievor nor the Union were informed of the Employer’s findings, or provided with any written report or executive summary regarding Ms. Kaufman’s allegations. Mr. Lotfus made several verbal inquiries regarding receiving such results, but was never provided with the same.
The Union takes the position that the Grievor’s ability to attend work was directly affected, since November/December 2010, by her interactions with and the inappropriate conduct of Mr. Stricko. The Union will ask the Board to find that the Employer’s mishandling of Ms. Kaufman’s allegations, disclosed in May 2011, further aggravated what was presented to her as a last chance to return to full-time employment.
The Union will argue that the Employer failed to provide Ms. Kaufman with a harassment free workplace, as it was aware of her allegations since May 2011 but did not follow its Workplace Discrimination and Harassment Policy.
8The Union also provided the Employer with the following Addendum to its statement of particulars:
“1. The meeting referenced in para 27 of the particulars took place on July 19th, 2011.
Ultimately, the Grievor did not return to work as planned on June 14th, 2011. Ms. Kaufman’s physician indicated he would not approve her return until he had seen her. When he did see her in July, he did not approve her return. The Grievor provided the Employer with medical notes dated July 18th, 28th and August 28th, 2011 indicating she was to remain off work until her next visit.
The Grievor maintains that each and every time the Employer requested medical documentation regarding her absence, she complied and provided the same.
Between October 2011 and January, 2012, the Grievor received no further communication from the Employer. She was not asked for further medical documentation, nor was she informed of the status of the Stricko Investigation.
By way of letter dated January 16th, 2012, the Grievor was informed that she was considered to be on unauthorized leave of absence as of October 3, 2011. She was directed to report to her next regularly scheduled shift on January 30th, 2012 and to provide a medical certificate setting out that she “medically, physically and psychologically fit to return to your fulltime, full duties as CO”.
Following receipt of the January 16th, 2012 letter, Ms. Kaufman called Superintendent Denise Scrivano numerous times and left at least two voicemail messages. Ms. Kaufman did not hear back from Ms. Scrivano.
Ms. Kaufman’s physician at the time, Dr. Neal, was unavailable in the time period designated by the Employer-January 16th to January 30th.
Ms. Kaufman did not hear from the Employer during this period of time.
Following January 30th, and prior to her termination letter dated February 14, 2012, Ms. Kaufman called the Shift IC on an almost daily basis, enquiring if she was on the roster. She wasn’t.”
9Counsel for the Employer emphasized that the grievor did not request a leave of absence following receipt of the letter of January 16, 2012. It was her submission that leaving a voice message for the Superintendent, or calling in to the Shift IC, did not constitute a request for a period of additional leave. Counsel argued that, in the absence of such a request, the grievor failed to provide a reasonable or justifiable reason for her continued absence. She further argued that, for the same reason, I cannot find that leave was unreasonably denied. Counsel agreed that this Vice Chair has the jurisdiction to review the Employer’s decision to treat the grievor’s absence from the workplace as unauthorized as of October 3, 2011. She submitted, however, that it was incumbent on the grievor to either request a fresh leave of absence or provide a meaningful explanation post receipt of the January 16, 2012 letter from the Superintendent. In the final analysis, I was asked to conclude that the grievor’s failure to do either of these things allowed the Employer to properly invoke section 42 of the Public Service of Ontario Act, 2006.
10Counsel for the Employer submitted that the grievor’s allegation of harassment did not justify a refusal to work in a situation where no leave was requested. She argued that the grievor should not be permitted to now assert her continued absence was due to harassment, when she did not contact the Employer in a timely fashion to advise that this was the reason for such absence. Counsel suggested that the grievor, instead, should have filed grievances if she genuinely believed she was the victim of harassment or that she had not been properly accommodated. In summary, counsel maintained that the grievor was not entitled to stay away from the workplace, given she provided no reason for the absence and failed to produce the requisite medical information in the face of clear communication from the Employer to the effect her position would be declared abandoned if such explanation and information was not forthcoming. On a related point, she submitted that the grievor’s intentions are irrelevant to a decision on the motion. Rather, the ultimate resolution must be premised on objective facts.
11Counsel for the Employer further submitted that the instant grievance does not encompass distinct complaints about either harassment or accommodation. In this regard, she noted that it was filed on February 16, 2012, just two (2) days after the declaration of abandonment. On her analysis, the grievance relates to the cessation of employment. Counsel referenced the Union’s position that the harassment and accommodation issues could still be heard, even if the declaration of abandonment is sustained. She argued that the Union, in substance, is attempting to expand the grievance to incorporate these additional issues. From the perspective of the Employer, the Union should not be allowed to do so, as it would be counter to sound labour relations. Counsel agreed that the harassment and accommodation issues could be considered as part of the context surrounding the Employer’s decision-making process vis vis the declaration. She asserted that such issues should not, however, be treated as independent violations of the collective agreement. Counsel suggested that to do so would be tantamount to the creation of new grievances. She argued that, in any event, harassment in 2010 to 2011, or a failure to accommodate from 2007 forward, is not sufficient to establish that leave was unreasonably withheld from October 3, 2011 onwards. Counsel reiterated it is material that the grievor failed to request a leave following her receipt of Ms. Scrivano’s letter of January 16, 2012.
12Counsel for the Employer submitted that the issue of abandonment can be resolved solely on the basis of the Union’s particulars. On her reading, the particulars fail to make out a prima facie defence to the Employer’s decision to invoke the legislation. Accordingly, counsel asked that the grievance be dismissed in its entirety.
13The Employer relies on the following authorities in support of its position: OPSEU (Edwards) and the Ministry of Correctional Services (2003) PSGB#P/0049/01 (Leighton); OPSEU (Tam) and the Ministry of Revenue (1976) GSB#1/76 (Beatty); OPSEU (Roy) and the Ministry of Education (1978) GSB#6/78 (Brunner); OPSEU (Szabo) and the Ministry of the Attorney General (1992) GSB#292/91 (Saltman); OPSEU (Baldeo) and Management Board Secretariat (1996) GSB#1270/93 (Finley).
14Counsel for the Union, in response, argued that the grievance relates to three (3) complaints. First, that the Employer’s decision, as stated in the letter of January 16, 2012, to consider the grievor to be on an unauthorized leave as of October 3, 2011 was unreasonable and discriminatory and, as a consequence, the decision taken under section 42 of the Public Service of Ontario Act, 2006 cannot stand. Second, that the Employer failed to properly respond to the grievor’s allegations of harassment and did not provide her with a harassment free workplace, both contrary to the Workplace Discrimination and Harassment Prevention Policy. Lastly, the Employer failed to properly implement the IME recommendation that a program of psychological treatment and counselling be provided to the grievor and that such failure, which negatively impacted the grievor’s ability to reintegrate into the workplace, amounted to a failure to accommodate to the point of undue hardship. Counsel observed that the Employer seeks to dismiss all of these complaints on a preliminary basis. It was her submission that such a “fact heavy” grievance should not be decided in this fashion.
15Counsel for the Union argued that the appropriate test, in a case such as this, is not whether the particulars provided actually establish the elements necessary to substantiate the contractual violations asserted. Rather, it is whether they are capable of doing so. Counsel submitted the Employer has to meet a very high threshold in order to establish that the particulars do not satisfy this latter test. On her analysis, it is not “plain and obvious” from the particulars that the grievance will fail. It was counsel’s submission that evidence is required in order to properly assess whether there is, in fact, a contractual violation or violations. In this regard, she noted that the present case raises human rights issues. Counsel maintained that such issues should not be dismissed at a preliminary stage of the process without the hearing of any evidence. She noted that the Employer could potentially make the same motion again after the presentation of evidence. In substance, counsel argued that it would be premature to consider the motion at this point in the proceedings.
16Counsel for the Union argued that the Employer’s decision to lift the authorization for the grievor’s absence effective October 3, 2011, as communicated by Ms. Scrivano’s letter of January 16, 2012, amounted to a denial of authorization for purposes of the Public Service of Ontario Act, 2006. From her perspective, the withdrawal of authorization was unreasonable and had a discriminatory effect. Counsel submitted that the assessment and resolution of this issue can only be achieved through the hearing of evidence. In her judgment, such evidence would establish that the leave should have been continued.
17Counsel for the Union reiterated that the grievance is not exclusively focused on the termination of the grievor’s employment. She argued that, even if the Employer’s motion was allowed with respect to the abandonment issue, there would still be a need to address the complaints relating to harassment and the duty to accommodate. It was her submission that these other matters can only be adjudicated through the hearing of relevant evidence.
18The Union relies on the following authorities in support of its position: OPSEU (Union) and the Ministry of Government Services (2011) GSB#2010-0405 (Abramsky); OPSEU (Ladouceur) and the Ministry of Environment (2005) GSB#2002-2393 (Briggs); Chornyj v. Trus Joist, a Division of Weyerhaeuser, [2006] O.H.R.T.D. No. 10 (Gottheil).
19Having reviewed the Union’s particulars, the parties’ submissions and the authorities relied on, I conclude as follows:
(i) On my reading, the grievance does capture the three (3) issues identified by Union counsel in argument. It alleges an “unjust dismissal” and references article 21.1 of the collective agreement relating to discipline and dismissal. I am satisfied that this encompasses a challenge to the Employer’s decision to declare the grievor’s position abandoned. The grievance further references article 3.1 relating, inter alia, to discrimination by reason of handicap. It also requests that the grievor “be accommodated properly”. Lastly, the grievance cites article 9.1 relating to health and safety. Ultimately, I accept that the grievance, as worded, contests all of the following: the Employer’s decision-making around the declaration of abandonment; the alleged failure on the part of the Employer to properly respond to the grievor’s claim of harassment; and the alleged failure of the Employer to properly accommodate the grievor. While the latter two (2) issues could be considered as independent complaints, it is arguable from the particulars that they may also be relevant to the abandonment question; and
(ii) I accept the Union’s submission that evidence should be received and that the issues should not be resolved at this stage solely through resort to the particulars. To fairly and properly resolve the issues presented, I consider it necessary to hear evidence with respect to the following: the Employer’s decision-making process around the declaration of abandonment, and particularly as it relates to the decision in January, 2012 to revoke authorization for the grievor’s absence effective October 3, 2011; the grievor’s complaint of harassment and how that was managed by the Employer; and the alleged failure, on the part of the Employer, to accommodate the grievor. The need for evidence is reinforced by the fact that the issues raised appear to be somewhat intertwined. The authorities relied on by the Employer are cases in which viva voce evidence was heard or where the parties agreed to proceed on the basis of documentary or other evidence without calling oral evidence. This is not the case here, as there is no agreement to proceed on the basis of the particulars without the calling of any evidence.
20At this juncture, I make no findings on the merits of the dispute. The required determinations can only be made after the presentation and assessment of the relevant evidence. Given the result on this preliminary matter, the Employer is to provide disclosure to the Union of the documents agreed to at the hearing of May 8, 2013.
21For all of the above reasons, the Employer’s motion is denied.
Dated at Toronto, Ontario this 5th day of June 2013.