GSB# 2019-0571

UNION# 2019-0553-0001

IN THE MATTER OF AN ARBITRATION

Under

THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT

Before

THE GRIEVANCE SETTLEMENT BOARD

BETWEEN

Ontario Public Service Employees Union (Sims)

Union

• and -

The Crown in Right of Ontario (Ministry of the Environment, Conservation and Parks)

Employer

BEFORE

Diane Gee

Arbitrator

FOR THE UNION

Erin Thorson Ontario Public Service Employees Union Grievance Officer

FOR THE EMPLOYER

Sean White Treasury Board Secretariat Legal Services Branch Counsel

HEARING

August 17, 2020 (by teleconference call)

DECISION

1This matter concerns a grievance in which it is alleged that the Employer is in violation of articles 2 and 3 of the collective agreement, Bill 168, the Disability Accommodation Policy, and the Ontario Human Rights Code.

2The parties attended at the Grievance Settlement Board on January 21, 2020 and reached an Interim Agreement. This decision deals with a motion heard by way of teleconference on August 17, 2020, brought by the Employer, to enforce the Interim Agreement and dismiss the grievance pursuant to Clauses 1 and 5 of same.

3In brief, the Interim Agreement recites that the Employer had, on November 25, 2019, implemented a temporary change to the grievor’s reporting relationship, from Erik Wiersma (“EW”) to Dave Morse (“DM”), for a three month period, on the condition the grievor submit to an independent medical examination (“IME”), however, as of January 21, 2020, the grievor had not signed the required consent form such that the IME could not be conducted.

4Pursuant to the terms of the Interim Agreement, the parties agree, in Clause 1, that no further steps will be taken in connection with the grievance until the earlier of: (1) one of the parties taking the position that the terms of the agreement have been violated; or (2) satisfaction of conditions described in Clauses 5 or 6. Clause 2 of the Interim Agreement stipulates the Employer is to provide the grievor with an updated Health Information Form (“HIF”) and the grievor agrees to ensure that it is returned the Employer no later than February 25, 2020. The parties agree that the HIF was provided to the grievor and it was returned to the Employer in a timely way. Clause 3 stipulates that, within two weeks of receiving that HIF, the Employer will advise whether and how it will accommodate the grievor or whether and to what extent it requires additional medical information. The parties agree, two weeks from the date of the Employer receiving the HIF, was March 10, 2020. On March 9, 2020, citing a need to continue assessment of the information on the HIF, the Employer sought a two-week extension. The Employer’s request was not opposed by the Union. Clause 4 provides the Employer will allow the temporary change in the grievor’s reporting relationship to continue during the two-week period following receipt of the HIF when the Employer is undertaking the assessment outlined in Clause 3. It is agreed that the grievor continued to report to DM and not EW at all relevant times including the period of the extension.

5On March 16, 2020 the Employer announced a realignment of the division within which the grievor worked. In a letter dated March 16, 2020 to the grievor, she was informed that her reporting relationship had changed. That same day, the grievor was contacted by DM and informed that she would now, permanently, report to him.

6The clauses that form the basis of the Employer’s motion are Clauses 5 and 6. They provide as follows:

5. The Parties agree that if the ultimate outcome is such that the Grievor’s reporting relationship is changed such that she no longer directly reports to Eric Wiersma, this Interim Agreement shall expire and the grievance will be fully and finally withdrawn by the Union and the Grievor.

6. Conversely and for greater clarity, the Parties further agree that if the Employer does not accommodate the Grievor with a change in reporting relationship within two weeks following receipt of the HIF, this Interim Agreement shall expire and the Union and the Grievor may elect to proceed with this grievance in the normal course.

7Clauses 7 and 8 are not relevant to the issue under considered herein. Clause 9 provides that I am seized “with respect to the implementation and/or enforcement of the terms of this Interim Agreement.”

8The Employer seeks an order enforcing the Interim Agreement and dismissing the grievance. The Union opposes the motion.

9The Employer refers to Clause 1 of the Interim Agreement wherein it is stated: “the grievance is to be held in abeyance and no further steps will be taken in the grievance process” until the earlier of: (1) an allegation the Interim Agreement has been violated subject to review by myself; or (2) satisfaction of clauses 5 or 6. The Employer argues there has been no written allegation brought that the terms of the Interim Agreement have been violated and as such the first means by which the Interim Agreement could, potentially, be brought to an end, does not apply. In contrast, the Employer argues, as a result of the grievor now permanently reporting to DM, “the ultimate outcome is such that the Grievor no longer directly reports to Eric Wiersma” and, as stated in Clause 5: “this Interim Agreement shall expire and the grievance will be fully and finally withdrawn by the Union and Grievor.”

10The Employer advises that the Union was asked to withdraw the grievance and has decline to do so. As a result, the Employer seeks an order dismissing the grievance.

11The Union argues that, when contacted by the Employer to request an extension of time to assess the information in the HIF the Union agreed, in good faith, on the basis that the Employer required more time to carry out the assessment. However, within a week, the Union was informed that the grievor had not been accommodated, rather the department had been reorganized. The Union states the request for an extension was made in bad faith and the grievor has not been accommodated. The Union argues that the Employer knew full well in March when it sought the extension, and might have known in January when the Interim Agreement was signed, that there was to be a reorganization that would have the effect of changing the grievor’s reporting relationship. It is argued that there was no good faith intention to provide the grievor with an accommodation.

12In reply, the Employer rejects the assertion that anything was done in bad faith. It is not until all approvals in connection with a reorganization are granted that any conclusions can be made as to its impact. There could be no prior conclusion or assumption as to who anyone would ultimately report to. The Employer further argues that the language of Clause 5 provides “if the ultimate outcome” is that the grievor no longer reports to EW the grievance will be withdrawn; it does not specify the basis upon which the change must be made.

Decision

13As argued by the Employer, the Interim Agreement provides for two ways by which the Interim Agreement can be brought to an end. The first is by way of one of the parties alleging, in writing, that a term of the Interim Agreement has been violated and taking the position that the Interim Agreement is at an end, subject to review by myself. No such allegation has been made by the Union. This means of bringing the Interim Agreement to an end is not before me.

14The second means of bringing the Interim Agreement to an end is: “satisfaction of either of the conditions in clauses #5 or #6.” Clause 5 provides “if the ultimate outcome” is that the grievor no longer reports to EW the grievance is to be withdrawn. Clause 6 provides: “if the Employer does not accommodate the Grievor with a change in reporting relationship” the Union may elect to proceed with the grievance in the normal course.

15The Union argues the grievor’s reporting relationship did not change by way of “accommodation;” the Union argues it changed due to a reorganization. It may be true that a reorganization forced the Employer’s hand in this matter, however, the end result is that the Grievor obtained the very accommodation she was seeking. As required by Clause 5, the “ultimate outcome” is that the grievor no longer directly reports to EW. Thus, as stated in Clause 5, “the grievance will be fully and finally withdrawn by the Union and the Grievor.” The Union declines to withdraw the grievance and accordingly I hereby exercise by jurisdiction, bestowed on me by Clause 9, to enforce the Interim Agreement. The Interim Agreement is hereby declared expired and the grievance is hereby deemed to be fully and finally withdrawn by the Union and Grievor.