GSB#2012-1875, 2012-1876, 2012-2036, 2012-2037, 2012-2038, 2012-2039, 2012-2040, 2012-2041, 2012-2042, 2012-2043, 2012-2322

UNION#2012-0411-0013, 2012-0411-0014, 2012-0411-0017, 2012-0411-0018,

2012-0411-0019, 2012-0411-0020, 2012-0411-0021, 2012-0411-0022, 2012-0411-0023, 2012-0411-0024, 2012-0411-0028

IN THE MATTER OF AN ARBITRATION

Under

THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT

Before

THE GRIEVANCE SETTLEMENT BOARD

BETWEEN

Ontario Public Service Employees Union (Gaunce)

Union

• and -

The Crown in Right of Ontario (Ministry of Community Safety and Correctional Services)

Employer

BEFORE

Barry Fisher

Vice-Chair

FOR THE UNION

Tim Hannigan Ryder Wright Blair & Holmes LLP Counsel

FOR THE EMPLOYER

Stewart McMahon Treasury Board Secretariat Labour Practice Group Counsel

HEARING

December 16, 2015

Decision

This is the Second Decision in this case.

1In the First Decision of May 28, 2013, I bifurcated the process to first determine if there was any accommodation needs on a go forward basis. I found that the medical reports submitted in this case to date were highly deficient and that I could not make an intelligent decision based on those reports. The major deficiency was that the evaluators had not asked themselves the proper question related to the Grievors’ ability to climb a set of stairs a certain number of times per shift and instead seemed to think the issue was whether the Grievor could climb stairs throughout her entire shift. They found that she could not climb stairs throughout her shift and therefore she should not work in any Pod that had stairs.

2As part of this process, I indicated that that the Ministry could obtain an Independent Medical Examination on the issue of whether or not the Grievor could climb a certain number of stairs per shift. I also suggested that the parties seek to agree on a doctor so that it would be a truly independent examination. The parties agreed with my suggestion.

3The parties agreed that a new IME would be conducted by Dr. Douglas J.D. Ritter, a well respected orthopedic surgeon. All of the information provided to Dr. Ritter and the questions asked of Dr. Ritter were agreed to by both parties.

4Dr. Ritter produced a report on June 15, 2015 which stated as follows:

Question: Does Ms Gaunce have a physical limitation or restriction which would prevent her from ascending or descending the stairs in Pod A on seven to ten occasions per shift with the possibility of further unscheduled trips up and down the stairs?

Answer: Based on my physical examination (strength, gait, range of motion) I do not believe she has a limitation which would prevent her from ascending or descending stairs in Pod A 7-10 times.

5At the hearing on December 16, 2015 neither the Union nor the Ministry objected to the findings of Dr Ritter. The Grievor was concerned that Dr Ritter had only seen her for less than 30 minutes whereas the other evaluator had seen her for many hours. This other evaluation she was referring to was the one that I had found deficient.

6No further evidence was called by either party.

7I accept the report of Dr. Ritter.

8I therefore find that no accommodation is needed for the Grievor with respect to her ability to work as a C.O. on any of the Pods on the night shifts at the Ottawa Carleton Detention Centre.

9We can now proceed to Step 2 of this process, namely determining liability issues for the allegations of past discrimination and harassment. I make the following procedural order.

1. The Union is to provide full particulars of all allegations of discrimination and harassment that it intends to rely upon. The Union will be restricted to those particulars at the hearing.

2. Once the particulars have been delivered, the Ministry will have 30 days to notify the Union and me of any preliminary objections. I will then deal with those objections either in writing or at a hearing.

3. Once the above steps have been dealt with, I will schedule sufficient hearing dates on the liability issue.