GSB#2015-2484

IN THE MATTER OF AN ARBITRATION

Under

THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT

Before

THE GRIEVANCE SETTLEMENT BOARD

BETWEEN

Association of Management, Administrative and Professional Crown Employees of Ontario (Santo)

Association

• and -

The Crown in Right of Ontario (Ministry of Training, Colleges and Universities)

Employer

BEFORE

Barry Stephens

Vice-Chair

FOR THE ASSOCIATION

Elisa Mesiti Association of Management, Administrative and Professional Crown Employees of Ontario Dispute Resolution Officer

FOR THE EMPLOYER

Dali Aung Treasury Board Secretariat Centre for Employees Relations Employee Relations Advisor

CONFERENCE CALL

March 31, 2016

Decision

1This grievance relates to an ongoing dispute regarding the medical accommodation of the grievor. This interim order addresses the need for a temporary accommodation of the grievor so that she can continue to work during the time that it takes to arbitrate her grievance.

2The grievor has been an employee of the Ontario government for some 26 years. She works as an Employment Program Consultant in the Ministry’s Employment and Training Division, which oversees the implementation and management of employment programs and services in the province. In 2014 she was diagnosed with cancer. She required major surgery and was off work for several months. Upon her return to work she continued to deal with a number of physical symptoms, such as fatigue, profuse sweating, headaches, and joint pain, as well as anxiety/panic attacks. Initially the doctor recommended that the grievor be permitted to work from a location closer to her home. The employer took the position that such an accommodation was not possible. The grievor then sought an agreement that she work a shift that would allow her to commute to and from work during off-peak hours. The employer took the position that such a shift was also unworkable given the demands of the grievor’s position. This difference is at the heart of the merits of the grievance, and the dispute about the employer’s ability to accommodate the grievor on an ongoing basis will form the subject of the hearing between the parties.

3After attempting unsuccessfully to mediate an overall solution to the dispute, it occurred to me that it would be possible with effort and compromise on both sides to fashion a temporary accommodation so that the grievor could continue to provide productive work while the issues with respect to a longer term accommodation were litigated. I invited the parties to provide submissions in writing on an interim accommodation and then received oral submissions on the subject via teleconference on March 31, 2016. As a result, I hereby order the following terms of interim accommodation:

i. The grievor is currently working some shifts out of the employer’s office in Richmond Hill. She will be permitted to do so on an ongoing basis for two days per week. If space is not available in the employer’s Richmond Hill location, the grievor will be permitted to work from home for two days per week.

ii. The grievor will work alternating weeks:

Week 1 - two days on regular hours, one day non-peak hours

Week 2 – two days non-peak hours and one day regular hours.

During days of non-peak hours the grievor will be permitted to start as early as 0700 a.m. but no later than 0730 a.m., which means she can put in a full day but leave the workplace no later than 3:30 p.m.

iii. I will leave it to the parties to work out a schedule as to which days will be in Richmond Hill and which will be regular or non-peak days in Toronto. I urge both sides to be flexible on this point. It may work best, for example, if this schedule is set on a week by week basis in order to fit with the work requirements, e.g. to ensure the grievor’s presence at an important meeting. However, if the parties cannot agree on a schedule I will receive submissions on the subject and provide a further interim ruling.

iv. Either party may seek an order for a variation of the interim ruling based on relevant events or changed circumstances.

v. The experience arising from this interim ruling may be the subject of evidence with respect to undue hardship in the case to be litigated. In other words, either party may rely on events arising during the period covered by the interim accommodation to inform the issue of ongoing accommodation.

vi. It is my expectation that both parties will apply their best efforts in good faith to make this interim accommodation work.

4The hearing on the merits will commence on a date to be set by the Grievance Settlement Board.