GSB# 2014-3266

UNION# 2014-0310-0050

IN THE MATTER OF AN ARBITRATION

Under

THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT

Before

THE GRIEVANCE SETTLEMENT BOARD

BETWEEN

Ontario Public Service Employees Union (Erazo)

Union

• and -

The Crown in Right of Ontario (The Ministry of Children, Community and Social Services)

Employer

BEFORE

Ian Anderson

Arbitrator

FOR THE UNION

David Wright Ryder Wright Blair & Holmes LLP Counsel

FOR THE EMPLOYER

Felix Lau Treasury Board Secretariat Legal Services Branch Counsel

SUBMISSIONS

November 29, 2018

Decision

1This decision is issued pursuant to Article 22.16 of the Collective Agreement between the parties. Article 22.16 decisions are without prejudice or precedent and reasons are to be brief.

2This decision follows on a decision dated October 5, 2018, and in particular paragraphs 19 and 20 of that decision:

19The third issue raised by Mrs. Erazo’s particulars is that of accommodation of her disability. The particulars in relation to [Mrs.] Erazo are almost three pages in length. At the end, they contain the statement: “Mrs. Erazo did not receive proper accommodation from the Ministry with respect to her workload and this has resulted in her being unable to work at all.” The difficulty is that there are no particulars in support of this conclusion. On the contrary, to the extent the particulars specifically refer to medically supported accommodation requests by [Mrs.] Erazo, they indicate the Employer complied with those requests.

20If the Union asserts there were specific requests by [Mrs.] Erazo for accommodation of her disability with which the Employer failed to comply, it is directed to provide full further particulars by November 30, 2018. In the absence of such particulars, [Mrs.] Erazo’s grievance will be dismissed in its entirety, as it may be after consideration of any such particulars provided.

3The Union filed further particulars in response to the October 5, 2018 decision.

4In the further particulars, the Union refers to several requests by Mrs. Erazo to her manager for the assignment of a coworker to act as a buddy. The Union asserts the manager indicated she would talk to someone about this, but never in fact took steps to assist her. The Union also refer to an increase in Mrs. Erazo’s caseload, despite reports from her doctor indicating the need to reduce her workload.

5Accepting both of these statements to be accurate, I would find no breach of the duty to accommodate. As noted in the October 5, 2018 decision, the particulars previously provided with respect to Mrs. Erazo referenced various medically supported accommodation requests with respect to workload, all of which were met by the Employer. While the further particulars indicate Mrs. Erazo was of the view assignment of a buddy and reduction of her caseload (as distinct from workload) would be beneficial to her, there is simply nothing to suggest that her disability required either of these accommodations.

6The further particulars detail a meeting which Mrs. Erazo’s manager scheduled with her. Mrs. Erazo asked a union representative to attend. When they arrived at the meeting, the manager told the representative the meeting “was not to discuss accommodation only workload and that his presence in that meeting was not necessary”. The particulars allege that after the representative left, the manager started asking Mrs. Erazo “about how she was doing with her workload, thus in fact discussing accommodations”. The particulars allege that as a result of the representative “not being there the meeting was not productive and no steps were taken to properly accommodate [Mrs. Erazo]”.

7Again, accepting this as true, I would not find a breach of the duty to accommodate. Given that the manager said the meeting was about workload, not surprisingly the manager asked Mrs. Erazo about her workload. Nothing in the further particulars indicates there was an attempt by either Mrs. Erazo or her manager to discuss accommodation during the meeting. I do not accept the premise that every discussion about workload is “in fact” a discussion about accommodation or that every discussion that Mrs. Erazo had with her manager had to be about accommodation. I note in this respect that when the manager told the representative he need not attend because the meeting was about workload not accommodation, there is no suggestion that either Mrs. Erazo or her representative indicated that asking about workload amounted to a discussion about accommodation.

8The further particulars refer to an occasion on which Mrs. Erazo was exposed to a fragrance in the workplace which affected her ability to concentrate, gave her a headache and made her feel fatigued. The further particulars take issue with the manner in which the Employer responded on that occasion and assert that it was not proper accommodation. (The further particulars note Mrs. Erazo was “subsequently” diagnosed with multi chemical or environmental sensitivities.)

9Leaving aside the merits of this allegation, it constitutes a completely new and fresh complaint, seemingly with respect to a separate disability. The grievance before me is with respect to excessive workload. The direction in the October 5, 2018 decision to provide further particulars with respect to “specific requests by [Mrs.] Erazo for accommodation of her disability with which the Employer failed to comply” was in relation to the assertion in the Union’s earlier particulars that “Mrs. Erazo did not receive proper accommodation from the Ministry with respect to her workload and this has resulted in her being unable to work at all.” It was not an invitation to raise new, unrelated matters. I am without jurisdiction to address this new allegation by Mrs. Erazo.

10Accordingly, for the reasons above and those given in the October 5, 2018 decision, Mrs. Erazo’s grievance is dismissed.