GSB#2011-2859; 2011-2860; 2011-2861
IN THE MATTER OF AN ARBITRATION
Under
THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT
Before
THE GRIEVANCE SETTLEMENT BOARD
BETWEEN
The Association of Management, Administrative and Professional Crown Employees of Ontario (GAM)
Association
- and –
The Crown in Right of Ontario (Ministry of Health)
Employer
BEFORE
Bram Herlich
Arbitrator
FOR THE ASSOCIATION
Kelly Doctor Goldblatt Partners LLP Counsel
FOR THE EMPLOYER
Caroline Cohen Treasury Board Secretariat Legal Services Branch Senior Counsel
HEARING
July 24, 2019 and (by teleconference) on November 15, 2019
Decision
1GAM is the complainant in this case. I will refer to her as the “complainant” or the “grievor”. On August 11, 2017, I issued a decision (the “main decision”) in this matter. It was lengthy and detailed, outlining events that transpired over several years. Those facts are set out in the decision and I do not intend to repeat them here, except to the limited extent that may be necessary. Accommodation issues were the major theme of the award, arising, broadly, in two contexts. In the first, the complainant had longstanding ergonomic requirements, which the employer, at least up until the time period in question (commencing in August 2010), had successfully accommodated through the provision of ergonomic devices, equipment and setup. The second accommodation issue pertains to a respiratory condition the complainant developed after exposure to chemicals used in carpet cleaning performed at her workplace. In the interest of clarity (though at the risk of some oversimplification), the grievances, to the extent they pertained to the former, were largely allowed, and, to the extent they pertained to the latter, were largely dismissed.
2In my decision, I remained seized with respect to the quantum of damages (both economic loss and other) owing as a result of my award. The summary of my findings at the end of the award (at para. 266) provided as follows:
For the period August 18, 2010 to October 7, 2010, I find that the employer breached its collective agreement and statutory obligations to provide the ergonomic accommodation the complainant required. The grievor is to be made whole for any economic losses suffered. In addition, the grievor is entitled to an award of damages for her non-tangible losses, including mental distress and injury to dignity
For the period from October 8, 2010 to the commencement of the period of total disability (November 30, 2010) and to the conclusion of the period of total disability (January 18, 2012), I have found that the employer did not breach any contractual or statutory obligation to accommodate the grievor. For the period leading up to the commencement of total disability, it was not established that the grievor was in need of any accommodation (except the ergonomic accommodation which was available to her at 80 Queen). And for the duration of the period of total disability, no accommodation was required or even possible (even if it was sought at the time) as the grievor was incapable of performing the duties of her position (the only position ever sought by way of accommodation throughout our narrative). I have found, however, that during this period (up to the commencement of receipt of LTIP benefits) the employer, despite maintaining the grievor on regular payroll until early March 2011, improperly withheld its approval of STSP. The grievor is to be made whole in respect of any losses she may have suffered as a consequence during the period up to May 30, 2011. The parties will perform the necessary accounting. I shall remain seized should they encounter any difficulties.
For the period from the end of total disability (January 18, 2012) until the grievor’s return to work (May 27, 2013), I have found that the employer failed to properly accommodate the grievor in failing to facilitate her return to work (whether at 80 Queen or at an alternate location or from the grievor’s home) between January 18, 2012 and July 17, 2012. The grievor is entitled to be made whole and to be compensated for any losses she may have suffered during this period. This entitlement is subject to my earlier comments regarding the shared responsibility of the employer and the grievor with respect to effecting her return to work. In addition, the grievor is entitled to an award of damages for her non-tangible losses, including mental distress and injury to dignity.
For the period from May 27, 2013 to September 27, 2013 (a period governed by the parties’ interim agreement as set out in their agreed facts), I am satisfied that the employer failed to properly implement the terms of the parties’ agreement and failed to provide the grievor with the ergonomic accommodation she required. There was no claim for any economic loss for this period. However, the grievor is entitled to an award of damages for her non-tangible losses, including mental distress and injury to dignity.
With respect to the grievor’s request for compassionate transfer, I am satisfied that the employer’s handling of the matter, was a breach of both the collective agreement and Human Rights Code. However,