GSB#2012-2922
UNION#2012-0542-0023
Additional files attached in “Appendix A”
IN THE MATTER OF AN ARBITRATION
Under
THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT
Before
THE GRIEVANCE SETTLEMENT BOARD
BETWEEN
Ontario Public Service Employees Union (Grievor)
Union
- and -
The Crown in Right of Ontario (Ministry of Community and Social Services)
Employer
BEFORE
Peter F. Chauvin
Vice-Chair
FOR THE UNION
David Wright Ryder Wright Blair & Holmes LLP Barristers and Solicitors Counsel
FOR THE EMPLOYER
Caroline Cohen Ministry of Government Services Legal Services Group Counsel
HEARING CONFERENCE CALL
May 13 & 29, 2013, June 6, 2014 May 28, October 4 & 25, 2013
1This is a very complex case. Ultimately, the main two issues can be summarised as being whether the Grievor can, and should, be allowed to return to work. These issues contain a number of sub-issues.
2Much turns on the Grievor’s physical and mental health, and behaviour. The Parties have many medical reports regarding the Grievor, and the Grievor has attended a number of independent medical examinations (“IMEs”).
3To provide some guidance as to how the issues will be addressed, the Parties entered into a Memorandum of Settlement dated May 29, 2013, which states at Paragraph 14 that:
Any dispute regarding any of the terms or requirements of this Memorandum of Settlement, including any issue as to the Grievor’s compliance with the terms and requirements, will be resolved by Vice-Chair Peter Chauvin in as expeditious a manner as possible, including by written submissions or conference call. In resolving such disputes, the Parties agree that Vice-Chair Chauvin has full authority to determine and implement the process and procedure, determine what evidence or submissions will be considered, which may include such things as using only will-say statements in lieu of testimony or other evidence, and only written submissions, all of which as he sees fit, and to render only a “bottom line” decision, without reasons, and that such decision will be accepted by the parties and will not be challenged, appealed, judicially reviewed or otherwise sought to be set aside in any way. In the same manner, Vice-Chair Chauvin also remains seized to deal with any issues concerning the implementation or interpretation of this Memorandum.
4The Parties have also agreed that this hearing is being conducted pursuant to the “True Mediation-Arbitration” process that the Parties have agreed to and used, and that this Decision is being issued in accordance with Article 22.16 of the Collective Agreement, and is without prejudice or precedent.
5Pursuant to the Memorandum of Settlement, the Grievor was required to attend an IME on November 11 and December 13, 2013, which was conducted primarily by Dr. S. Woodside, a Forensic Psychiatrist from the Centre for Addiction and Mental Health. The parties provided Dr. Woodside with numerous medical reports regarding the Grievor, and agreed upon a number of questions that they requested Dr. Woodside to answer. The most important of those questions, for the purposes of this Decision, is Question No. 1, which is:
Based on your review of the attached materials and your assessment of the Grievor, please provide your professional opinion as to whether there is a safety risk for any of the following if the Grievor returns to work in the Family Responsibility Office ("FRO")?
a. Himself
b. Colleagues
c. Clients
d. Superiors and/or Management
6For the purposes of this Decision, I will summarise Question No. 1 as: “Is there a safety risk if the Grievor is returned to work?”.
7In this decision, the Parties have specifically requested that I only answer one or both of the following questions:
Is there a safety risk if the Grievor is returned to work?
If there is, does the condition that gives rise to that safety risk amount to a disability for the purposes of the Ontario Human Rights Code?
8Dr. Woodside wrote a very detailed 46 page medical report dated February 24, 2014 (“Dr. Woodside’s Report”). At pages 39 to 41 Dr. Woodside specifically addresses and answers Question No. 1. The most pertinent passages in his answer are as follows [underlining added]:
It should be noted at the outset that clinical assessment of risk of both harm to oneself and others tends to be most accurate over the short-term (days to a few weeks), and has less accuracy when extended to longer periods of time. This highlights the need for ongoing assessment of risk in vulnerable individuals.
Overall, over the short-term (days to weeks), I do not view the Grievor as presenting an acute risk for either harm to himself or to any other person, including colleagues, clients or superiors if he returns to the workplace.
However, over the longer-term (months to years), one can anticipate that the Grievor will continue to struggle interpersonally within the workplace and face ongoing stress over time in relation to either his demands not being met or additional requests being made of him within the workplace that he does not agree with. In that context, I believe there is a significant likelihood that the Grievor may take further action that leads to concern over his safety or the safety of others. In my opinion, he is most likely to engage in further parasuicidal gestures (not intended to actually kill himself but to signal his distress) and/or make comments adverting to the possibility of suicide if his needs are not met in a manner satisfactory to himself. As well, he may continue to make comments of a more subtle nature that give rise to concern for the safety of others, although I believe he is less likely to overtly threaten others or act out physically within the workplace.
9The Employer strenuously argued that I should interpret the above passages as Dr. Woodside stating that there is a safety risk if the Grievor is returned to work. In support of this, the Employer extensively reviewed the lengthy summary of previous medical reports, and the other information and statements contained in Dr. Woodside’s Report, and submitted that when all this is considered, it becomes all the more clear that in the above passages Dr. Woodside is stating that there is a safety risk if the Grievor is returned to work.
10The Union completely disputed this, stating that it is clear that Dr. Woodside considered everything that he wrote in his Report, including the numerous previous medical reports he summarised in his Report, when he answered Question No. 1. In view of this, the Union stated that it is the specific answer that Dr. Woodside gave to Question No. 1 that should be considered.
11The Union also submitted that the question that is being asked is very exceptional, and has dire consequences for the Grievor. Accordingly, the Union submitted but I must have clear evidence before I can come to the exceptional conclusion that there is a safety risk if the Grievor is returned to work.
12With regard to that evidence, the Union stated that Dr. Woodside’s answer to Question No. 1, as summarised in the paragraphs quoted above, is perfectly clear for the short-term, and is less clear for the longer-term. Taken together, the Union strongly submitted that Dr. Woodside’s answer overall is by far more reasonably interpreted as stating that there is not a safety risk if the Grievor is returned to work, in both the short and the long-term, and cannot be interpreted as stating that there is a safety risk, in either the short or the long-term. The Union stated this for the following reasons.
13First, the Union noted that Dr. Woodside states that: “Overall, over the short-term (days to weeks), I do not view the Grievor as presenting an acute risk for either harm to himself or to any other person”.
14The Union also noted that Dr. Woodside stated that “clinical assessment of risk of both harm to oneself and others tends to be most accurate over the short-term (days to a few weeks), and has less accuracy when extended to longer periods of time”.
15The Union submitted that Dr. Woodside's answer regarding the short-term is perfectly clear, in that he clearly states: “I do not view the Grievor as presenting an acute risk for either harm to himself or to any other person”.
16It is Dr. Woodside’s longer-term assessment that the Union acknowledges is somewhat less clear. However, the Union notes that Dr. Woodside acknowledges that longer-term assessments are less accurate. Also, and more importantly, the Union submits that the longer-term assessment is still by far more reasonably interpreted as not stating that there is a safety risk if the Grievor is returned to work.
17With regard to the longer-term, the Union noted that Dr. Woodside stated that “one can anticipate that the Grievor will continue to struggle interpersonally within the workplace and face ongoing stress over time in relation to either his demands not being met or additional requests being made of him within the workplace that he does not agree with”. The Union submitted that such anticipated interpersonal struggles and workplace stressors could be common for many employees, and that these statements should certainly not be interpreted as Dr. Woodside stating that there is a safety risk if the Grievor is returned to work.
18The Union noted that Dr. Woodside then stated that he believes that there is a “significant likelihood” that the Grievor “may” take further action that “leads to concern” over his safety or the safety of others. The Union noted that all of these statements are a highly qualified, with words such as “likelihood” and “may”, and that in any event, the “concern” referred to is not in any way explained. The Union submitted that such vague statements cannot be used to support the very exceptional and dire conclusion that there is a safety risk, and the Grievor cannot be returned to work.
19Finally, the Union noted the Dr. Woodside thereafter does identify the “concern” he has expressed, stating that, in his opinion, the Grievor:
…is most likely to engage in further parasuicidal gestures (not intended to actually kill himself but to signal his distress) and/or make comments adverting to the possibility of suicide if his needs are not met in a manner satisfactory to himself. As well, he may continue to make comments of a more subtle nature that give rise to concern for the safety of others, although I believe he is less likely to overtly threaten others or act out physically within the workplace.
20The Union submitted that a likelihood to engage in “parasuicidal gestures (not intended to actually kill himself but to signal his distress)” and /or to make “comments adverting to the possibility of suicide if his needs are not met” do not amount to a safety risk to either the Grievor, and certainly not others, if the Grievor is returned to work.
21Finally, the Union noted that again, at the most, Dr. Woodside makes very qualified and vague statements that the Grievor “may” continue to make “comments of a more subtle nature” that give rise to “concern” for the safety of others. However, and most tellingly and importantly, the Union notes that Dr. Woodside concludes with “although I believe he is less likely to overtly threaten others or act out physically within the workplace”.
22The Union submitted the Dr. Woodside's clearest statement is that conclusion; that it is less likely that the Grievor would overtly threaten others or act out physically in the workplace. In view of this, the Union submitted that by far the most reasonable interpretation of Dr. Woodside's Report is that it is not a safety risk if the Grievor is returned to work. Conversely, the Union submitted that Dr. Woodside’s Report cannot be interpreted as coming to the very exceptional conclusion that there is a safety risk, and the Grievor cannot be returned to work.
23I have very carefully considered the submissions of the parties, and I have very carefully reviewed Dr. Woodside's Report. The issue at hand must be considered with the utmost of attention and seriousness, as it could have dire consequences for either of the parties. The Grievor could lose his job, or harm himself. The Employer and its employees could be exposed a risk of harm. The rights and risks of both of the parties must be carefully balanced. Having considered the issue in this context, I conclude that there is not a safety risk if the Grievor is returned to work, for the following reasons.
24First, it is clear that Dr. Woodside considered everything that he wrote in his Report, including the numerous previous medical reports he summarised in his Report, when he answered Question No. 1. In view of this, I find that it is the specific answer that Dr. Woodside gave to Question No. 1, as summarized in the passage quoted above, that is the most relevant and should be considered in answering the question of whether there is a safety risk if the Grievor is returned to work.
25With regard to that passage, Dr. Woodside’s answer to Question No. 1 is clear for the short-term, as stating that there is not a safety risk if the Grievor is returned to work. Dr. Woodside simply states that [underling added]:
“Overall, over the short-term (days to weeks), I do not view the Grievor as presenting an acute risk for either harm to himself or to any other person.”
26Dr. Woodside’s longer-term assessment is less clear. However, I find that the longer-term assessment is much more reasonably interpreted as not stating that there is a safety risk if the Grievor is returned to work.
27Dr. Woodside states that “one can anticipate that the Grievor will continue to struggle interpersonally within the workplace and face ongoing stress over time in relation to either his demands not being met or additional requests being made of him within the workplace that he does not agree with”. Such interpersonal struggles and workplace stressors could be common for many employees. I find that these statements should not be interpreted as Dr. Woodside stating that there is a safety risk if the Grievor is returned to work.
28Dr. Woodside then states that he believes that there is a “significant likelihood” that the Grievor “may” take further action that “leads to concern” over his safety or the safety of others. These statements are a highly qualified, with words such as “likelihood” and “may”, and the “concern” referred to is not explained. Again, such qualified statements and unspecified concerns do not establish that there is a safety risk if the Grievor is returned to work.
29Dr. Woodside then states that the Grievor:
…is most likely to engage in further parasuicidal gestures (not intended to actually kill himself but to signal his distress) and/or make comments adverting to the possibility of suicide if his needs are not met in a manner satisfactory to himself. As well, he may continue to make comments of a more subtle nature that give rise to concern for the safety of others, although I believe he is less likely to overtly threaten others or act out physically within the workplace.
30A likelihood to engage in “parasuicidal gestures (not intended to actually kill himself but to signal his distress)” and /or to make “comments adverting to the possibility of suicide if his needs are not met” do not amount to a safety risk to either the Grievor, or to others, if the Grievor is returned to work. Dr. Woodside is not saying that the Grievor will commit suicide if he is returned to work. Rather, Dr. Woodside only says that the Grievor may engage in further “parasuicidal gestures”, not intended to actually kill himself, and that he may make comments “adverting to the possibility of suicide”.
31Finally, Dr. Woodside states that the Grievor “may” continue to make “comments of a more subtle nature” that give rise to “concern” for the safety of others. Again, these are very qualified and unspecified statements, and do not state that there is a safety risk if the Grievor is returned to work.
32I find that the most clear, and therefore the most important statement that Dr. Woodside makes, is his conclusion, in which he states that: “although I believe he is less likely to overtly threaten others or act out physically within the workplace”.
33In view of this conclusion, I find that overall the most reasonable interpretation of Dr. Woodside's Report is that it is not a safety risk if the Grievor is returned to work. I find that Dr. Woodside’s Report does not state that there is a safety risk if the Grievor is returned to work.
34I have concluded that there is not a safety risk if the Grievor is returned to work. Accordingly, the second question that was potentially put to me does not arise. That second question was: If there is a safety risk, does the condition that gives rise to that safety risk amount to a disability for the purposes of the Ontario Human Rights Code. In view of my finding, that question does not arise.
35Also, the parties have asked me to not answer, at least not at this time, in this Decision, whether any condition that the Grievor may have amounts to a disability for the purposes of the Ontario Human Rights Code. Respecting the parties’ request, I will not answer the question. However, I make the following two observations.
36First, the Employer submitted that I must accept all of the conclusions stated by Dr. Woodside, and that I do not have any discretion to not directly implement Dr. Woodside's conclusions. I did not have to address this argument of the Employer in connection was my analysis of Dr. Woodside’s Report, as set out above, because I have given Dr. Woodside’s Report its most reasonable interpretation, and I have accepted that interpretation. However, I do not accept the Employer’s submission that I must accept and directly implement all of the conclusions stated by Dr. Woodside. This is particularly true with regard to Dr. Woodside’s statements regarding whether any condition that the Grievor may have amounts to a disability for the purposes of the Human Rights Code. This is clearly a question of both medical fact, and law. It is also one of the ultimate issues of law in dispute, which falls within my jurisdiction to decide, under the general principles of law, and under both paragraph 14 of the Memorandum of Settlement, and Article 22.16 of the Collective Agreement.
37Second, my ruling is that it is not a safety risk to return the Grievor to work. However, this ruling does not mean that the Grievor should or will actually be returned to work. Clearly, there are serious issues, including behavioural issues, with the Grievor that caused the Employer to remove the Grievor from work, and caused the parties to take the extraordinary measure of agreeing and requiring that the Grievor undergo an IME to determine whether there is a safety risk if the Grievor is returned to work.
38These issues and this behaviour may or may not amount to a disability under the Human Rights Code. If they do, the issue will be whether they can be accommodated, short of undue hardship. If they don’t, one issue will be whether the relationship between the Employer and the Grievor is so damaged, or so un-workable, that it is not appropriate to return the Grievor to work with the Employer. Under either scenario, it is possible that the Grievor will not be returned to work with the Employer.
39This possibility is reflected in the Memorandum of Settlement. Paragraph 3 of the Memorandum of Settlement states that if it is found that there is not a safety risk if the Grievor is returned to work, “the Grievor must participate in the Second IME”. Paragraphs 5, 6 and 7 of the Memorandum of Settlement address the Second IME, and state that [underlining added]:
The Second IME will determine whether the Grievor has any temporary or permanent restrictions and limitations that would prevent him from performing some or all of the regular duties of this position, including whether he could perform his work during the full-time (“FT”) core hours at the FRO branch at which he has worked (“his FRO Branch”), or elsewhere at the OPS (referred to more simply as “whether the Grievor requires any accommodation(s)”. If the Second IME determines the Grievor has any temporary or permanent restrictions and limitations, the parties will attempt to agree on what accommodations are to be provided to the Grievor short of undue hardship to the Employer.
If the Grievor returns to any form of work, he agrees to comply with all reasonable and appropriate recommendations for treatment as recommended by the IME Advisors to facilitate his continued ability to work.
If the parties cannot identify another FT or PT position that the Grievor can perform, with reasonable accommodations, the parties agree that whether the Grievor’s employment can be continued will be determined by Vice-Chair Chauvin pursuant to paragraph 14.
40These paragraphs contemplate that the Grievor’s issues and behaviour, whether they amount to a disability under the Human Rights Code or not, may give rise to restrictions and limitations that prevent the Grievor from performing his duties, and cannot be remedied through whatever accommodation, if any, that the Grievor may be entitled to at law, with the result that the Grievor cannot be returned to work, and his employment can no longer be continued. That is an issue that may arise as this matter continues.
41On the other hand, if the Grievor is returned to work, it will be important that he is cautioned that he must perform his work in a productive and cooperative manner, as is expected of all employees. In the following passage from his Report, Dr. Woodside noted that the Grievor may have some difficulty doing this, and emphasized the importance of giving the Grievor such a caution, and setting out consequences:
If there is an attempt to return the Grievor to the workplace, he should be clearly advised as to expectations regarding permissible behaviour, with potential consequences for the same clearly laid out. I would anticipate the grievor would respond to any such efforts with further arguments/grievances and complaints, given his long-held belief that he has been victimized and unfairly targeted within the workplace for years. This will make it extremely challenging to support him in a safe return to work over time.
42I remain seized of this matter.
Dated at Toronto, Ontario this 3rd day of July 2014
Appendix A
GSB#
Union File#
2012-2923
2012-0542-0024
2012-2924
2012-0542-0025
2012-2925
2012-0542-0027
2012-3234
2012-0542-0028
2012-3235
2012-0542-0029
2012-3236
2012-0542-0030
2012-3237
2012-0542-0031
2012-3238
2012-0542-0032
2012-3239
2012-0542-0033
2012-3240
2012-0542-0034
2012-3241
2012-0542-0035
2012-3242
2012-0542-0036
2012-3243
2012-0542-0037
2012-3244
2012-0542-0038
2012-3245
2012-0542-0039
2012-3246
2012-0542-0040
2012-3247
2012-0542-0041
2012-3248
2012-0542-0042
2012-3249
2012-0542-0043
2012-3250
2012-0542-0044
2012-3251
2012-0542-0045