GSB#2012-0568

UNION# 2012-0338-0003

IN THE MATTER OF AN ARBITRATION

Under

THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT

Before

THE GRIEVANCE SETTLEMENT BOARD

BETWEEN

Ontario Public Service Employees Union (Morin)

Union

• and -

The Crown in Right of Ontario (Ministry of Government and Consumer Services)

Employer

BEFORE

Michael Lynk

Arbitrator

FOR THE UNION

Mae J. Nam Ryder Wright Blair & Holmes LLP Counsel

FOR THE EMPLOYER

Thomas Ayers Treasury Board Secretariat Legal Services Branch Counsel

HEARING

March 6, 2020

Decision

1The Parties have previously agreed to bifurcate the hearing, such that:

a. the first portion of the hearing will focus on the issues of the Employer presently able to accommodate the Grievor and whether the Employer has reached the point of undue hardship; and

b. the Grievor’s allegations of historic harassment or failure to accommodate will form the second phase of the hearing, as well as any remaining issues related to damages or outstanding wages, if applicable.

2The Employer and the Union agree that they each are entitled to preserve their rights to advance preliminary arguments with respect to waiver, timeliness and prejudice with respect to the second phase of the hearing.

3In light of the above, the directions to the Parties that are contained in this order apply to the first phrase of the hearing. The Parties agree that these issues may need to be revisited when the litigation of the second phase of the hearing commences.

4Having regard to the medical information at issue in the first phase of the hearing, I hereby order the following conditions to be placed on the Grievor’s medical documents provided to counsel to the Employer:

a. The documents or material will only be released to Employer counsel for this grievance proceeding and two advisors (one Employee Relations Advisor and one instructing client), and a transcriber, if necessary.

b. The documents or material produced must be maintained as confidential.

c. The documents or material produced must not be disclosed to any person or party not a participant in these proceedings.

d. The documents or material produced can only be used for purposes relating to this proceeding and not for any other purpose or proceeding.

e. Documents or material produced shall only be photocopied for purposes relating to this proceeding.

5Should a need arise for counsel to disclose the documents to a potential witness, for the purposes of getting instructions, or in order to get an expert medical opinion, or for any other reason, the Employer may seek the Grievor’s consent and, if denied, an order can be sought from the Board and I will make a determination if such disclosure is appropriate.

6Having heard the submissions of the Parties, I hereby order the Parties to provide full additional particulars with respect to:

a. Any steps taken by the Employer to conclude that the CSR3 position could not be modified to be done remotely;

b. Any steps taken by the Employer to accommodate the Grievor through the Health Reassignment Program;

c. Any consideration by the Employer of positions that could be modified to accommodate the Grievor through a telework arrangement;

d. Any steps taken by the Employer to bundle or otherwise modify duties to accommodate the Grievor through a telework arrangement; and

e. Any steps taken by the Grievor and/or Union to participate in the Health Reassignment Program.

7Having heard the submissions of the Parties, I hereby order the Employer to produce the following documents and material, to the extent it exists and has not already been produced:

a. All documentation and communication related to the accommodation of the Grievor to the CSR3 position, including any and all documentation related to the Employer’s conclusion that the CSR3 position could not be modified to be done remotely;

b. All documentation and communications related to the Employer’s efforts to accommodate the Grievor, including but not limited all positions reviewed or considered by management and any and all documentation related to positions and duties considered;

c. All documentation related to efforts to accommodate the Grievor through the Health Reassignment Program;

d. All Employer policies and guidelines on accommodation in the OPS;

e. All documentation the Employer intends to rely upon not previously produced.

8I hereby order the Union to produce the following documents and material, to the extent it exists and has not already been produced:

a. All documentation related to efforts to accommodate the Grievor through the Health Reassignment Program; and

b. All documentation the Union intends to rely upon not previously produced.

9All particulars and production ordered in paragraphs 6-8 shall be produced by March 20, 2020. In light of my direction to the Parties on the last hearing day and the need to avoid any further delay in this matter, any Party seeking to introduce any particulars and production not produced by end of day on March 20, 2020 in the first phase of the hearing must seek permission of the Board and provide an explanation as to why the deadline was not met.

10I order the Employer to present its evidence first in this first phase of the hearing. The Employer must be prepared to proceed with its first witness on the next hearing date and must identify its witness to the Union by March 20, 2020. If the Employer intends to call one or multiple additional witnesses on the second hearing date, it shall make best efforts to advise the Union of the names of the witnesses no later than one week before the hearing commences.

11I understand and acknowledge that the Union has reserved its right to seek orders requiring the Employer to produce:

a. documentation and materials related to Telework in the OPS, and

b. a listing of positions that have been determined to be remote/telework throughout the OPS.