GSB#2016-0770

UNION# 2016-0580-0021

IN THE MATTER OF AN ARBITRATION

Under

THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT

Before

THE GRIEVANCE SETTLEMENT BOARD

BETWEEN

Ontario Public Service Employees Union (Cull)

Union

• and -

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

Employer

BEFORE

Randi H. Abramsky

Arbitrator

FOR THE UNION

Christopher Bryden Ryder Wright Blair & Holmes LLP Counsel

FOR THE EMPLOYER

Debra Kyle Treasury Board Secretariat Legal Services Branch Counsel

HEARING

December 11, 2017

DECISION

The Employer, the Ministry of Health and Long-term Care, has moved to strike a number of allegations from consideration in this matter on the basis that the Board lacks jurisdiction to decide the issues raised in those claims. The Union opposes that motion.

Facts

1The grievance, dated April 22, 2016, asserts a violation of Article 2 (Management Rights), Article 3 (No Discrimination/Employment Equity), Article 21 (Discipline and Dismissal) and Article 22 (Grievance Procedure) “based on my unfair and inaccurate Performance Development Plan (PDP) review and subsequent retaliatory Letter of Counsel.” The Grievor’s home position is a Case Officer with the Health Board Secretariat (“HBS”). She has also held several secondments and other positions, including one at the Patient Ombudsman.

2Two sets of particulars followed the grievance. The first set of particulars, dated March 15, 2017, contains an allegation relating to the Patient Ombudsman, as follows:

67. The Grievor subsequently went on a leave of absence from the OPS to take a position with the Patient Ombudsman. She loved this position, however, was required to leave as they were unable to accommodate her back issues, which had become extremely exacerbated at the HBS.

3The second set of particulars, dated September 29, 2017, provides more detail to that assertion, and contains a number allegations concerning the Patient Ombudsman position, as follows:

d) Patient Ombudsman Position

30. The Grievor worked at the Patient Ombudsman (“PO”) on a full-time basis from June to October, 2016.

31. A copy of the POS job posting is enclosed, as is her offer letter from the PO, as well as correspondence setting out the Grievor’s compensation for her position with Patient Ombudsman.

32. The Grievor continued to suffer the same back issues at this position which arose from her time at HBS.

33. The Grievor advised the PO representatives/management of her need for accommodation and in fact was reliant on a cane when she interviewed for this position.

34. After the Grievor began work at the PO, she found that she continued to suffer the same back and neck issues she was dealing with a HBS and worked to have the ergonomic equipment from HBS transferred to her at the PO.

35. In fact, when the Grievor accepted the PO job, she was on a secondment with the Ministry of Community and Social Services (MCSS) and had asked the Ministry and HBS about ensuring that her ergomonic HBS equipment was transferred as soon as possible. The equipment never was transferred to MCSS.

36. It was around this time that the Grievor began relying on a cane to get around as a result of the injuries she suffered at HBS.

37. The Grievor takes the position that the Employer has demonstrated a pattern of not providing necessary accommodations when it would have been easy and inexpensive for them to do so. Their not doing so was a deliberate act that caused her significant harm and damage.

38. The ergonomic desk riser she used at HBS was loaned to the PO for the Grievor’s use, however, the ergonomic chair that HBS had purchased for the Grievor was not lent to the PO.

39. Adam Langley from HBS wanted the PO to purchase the chair from HBS, however, PO was unwilling to do so as it did not know the condition of the chair, and it made more sense to purchase a new one if they were going to spend any money on it. The Grievor was advised by a PO representative, Gail Crossman, that while the PO would eventually purchase a chair for the Grievor, they would not do so until they moved to their new permanent office in September, 2017.

40. Mr. Langley was aware the Grievor’s back condition had worsened and that she was now relying on a cane.

41. The Grievor subsequently learned that her ergonomic chair from HBS was not loaned to the PO because Ms. Evora [the Supervisor] gave it to her friend John Smith, who worked in IT. He was not an employee of HBS but worked in the same building.

42. When the Grievor returned to HBS on October 10, 2016, Adam Langley advised the Grievor that Ms. Evora had given the Grievor’s chair to Mr. Smith.

43. Mr. Smith had received an ergonomic assessment at around the same time that the Grievor did but chose a different type of ergonomic chair. The Grievor understands Mr. Smith later wanted the Grievor’s chair instead and Ms. Evora gave it to him as the two are friends. Mr. Smith, Ms Evora’s friend, therefore got two (2) ergonomic chairs while the Grievor got none.

44. As a result of Ms. Evora and HBS lending out some, but not all of the Grievor’s ergonomic equipment, the Grievor was forced to quit her job at the PO so she could return to HBS and have use again of her ergonomic equipment.

45. However, the Grievor still did not have her ergonomic equipment returned to her for one full month after she returned in October, 2016.

46. The Grievor did not get her chair back until Mr. Smith went off sick weeks after the Grievor’s return to work, and Mr. Langley advised the Grievor at that time that she (the Grievor) could “borrow” the chair from Mr. Smith but only for “a day or two.”

47. Management also did not process the paperwork related to the Grievor’s return to the OPS from the PO job and as a result she did not have benefits and was unable to continue with many of her treatment for that one month period after her return.

4It is undisputed that the Patient Ombudsman is not part of the Ontario public service. It is not a Ministry or a Crown agency, or a Commission public body covered by either the Crown Employees’ Collective Bargaining Act, or the Public Service Act of Ontario. It is a wholly separate employer. The PO is part of the Ontario Health Quality Council. It was created under the Excellent Care for All Act, 2010. Under Regulation 445/10, Section 10(4) of that Act, employees are “not public servants for the purpose of Part III of the Public Service Act of Ontario Act, 2006.” The job that was offered to her by the PO, and which she accepted, was a “regular full-time position.” She was not a member of a union during this time. It was not a temporary position, or a short-term assignment. It was a full-time job, with a six-month probationary period. Why she was granted a leave of absence from the OPS to accept a job with another employer is not explained in the record.

Reasons for Decision

5Having carefully considered the positions of the parties, I conclude that the Employer’s motion to dismiss the allegations concerning the Grievor’s time and the Employer’s alleged failure to accommodate her while she worked in the PO position should be granted, as the Board lacks jurisdiction to address those claims.

6Any obligation to accommodate the Grievor, while she was employed by the PO, was not the responsibility of HBS. It was the responsibility of the PO. There is no basis to conclude that the ergonomic equipment purchased by HBS belonged to the Grievor, or that it was the “Grievor’s equipment”. She did not own it, or purchase it. It may have been purchased for her use while she was working at HBS, but it did not belong to her personally. The particulars, in fact, at par. 38, acknowledge that the ergonomic chair was purchased by HBS. The Grievor’s particulars assume a legal obligation on HBS to provide equipment it purchased for the Grievor’s use while employed by HBS to another employer. The Union, however, cites no authority for such a legal obligation.

7The particulars further indicate that HBS loaned the riser, but wanted to sell the chair to the PO. The PO declined, preferring to buy the Grievor a new ergonomic chair. Yet they advised the Grievor that they would not do so until September 2017 when the office was relocated – approximately a year later. If that was a failure to accommodate, it was not and could not be a failure by HBS.

8The Union asserts that the Employer is legally responsible for any harm caused by its alleged failure to accommodate her, including alleged harm that occurred while she worked at the PO. It asserts that the harm that occurred to the Grievor while at the PO was a direct result of HBS’s failure to accommodate her while she was at HBS, and other actions it took while she worked at the PO, and upon her return. It submits that an alleged failure to accommodate is a continuing grievance, and that it includes all that transpires even after the original grievance. In support, it cites to Re Blouin Drywall Contractors Ltd. and C.J.A., Local 2486, Source decision, 1975 CarswellOnt 827 (ONCA); Re Hostess Frito-Lay Co. and U.S.W.A., Local 4610, 2002 CarswellOnt 5065 (Gorsky); Re City of Windsor and Windsor Professional Firefighters’ Association (Laba), 2009 CarswellOnt 10738 (Williamson); Re Beach Foundry Ltd. and United Automobile Workers, 1974 CarswellOnt 1450 (Abbott); and Re Greater Essex District School Board and O.S.S.T.F., 2012 CarswellOnt 12859 (Albertyn).

9In Re City of Windsor, supra at par. 19, Arbitrator Williamson stated: “Generally speaking, a failure to accommodate a legitimate request for accommodation under Human Rights legislation would constitute a continuing contravention.” In so ruling, he cited to Re R. in Right of Manitoba v. Manitoba Human Rights Commission, Galbraith and Lylyk [1984], 2 W.W.R. 2289; 24 Man. 4 (2d) 117, at p. 294 W.W.R: “To be a “continuing contravention” there must be a succession or repetition of separate acts of discrimination of the same character. There must be present acts of discrimination which could be considered as separate contraventions of the Act, and not merely one act of discrimination which may have continuing effects or consequences.”

10The difficulty with the Union’s case here is that for the period that the Grievor worked for the PO, she was no longer an employee of HBS, nor was she a Crown employee or public servant under the relevant statutes. None of the cases cited by the Union involve a change in employer. The Union presented no authority for the proposition that HBS had a continuing obligation to accommodate the Grievor after she left its employ. The fact that she was on an unpaid leave of absence does not change that result. HBS’s obligation to accommodate the Grievor resumed upon her return to HBS, but it did not continue while she worked for the PO.

11Consequently, this Board has no legal authority to consider the Grievor’s allegations of HBS’s alleged failure to accommodate while she worked for another employer. Particulars 30 – 44 are struck for lack of jurisdiction. To the extent that Particular 67, from the March 2017 particulars, covers the same issues, the Board does not have jurisdiction over it. Particulars 45, 46, and 47, which deal with the situation upon the Grievor’s return to HBS, remain and the Board has jurisdiction over those claims.

Issued in Toronto this 18th day of December, 2017.