GSB# 2020-2967; 2021-1207; 2021-1629; 2021-2487

UNION# 2021-0212-0002; 2021-0212-0003; 2021-0212-0004; 2021-0212-0005

IN THE MATTER OF AN ARBITRATION

Under

THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT

Before

THE GRIEVANCE SETTLEMENT BOARD

BETWEEN

Ontario Public Service Employees Union (Kopec)

Union

• and -

The Crown in Right of Ontario (Ministry of the Attorney General)

Employer

BEFORE

Dale Hewat

Arbitrator

FOR THE UNION

Mae J. Nam Ryder Wright Blair & Holmes LLP Counsel

FOR THE EMPLOYER

Felix Lau Treasury Board Secretariat Legal Services Branch Counsel

HEARING DATE

May 5, 2022

Decision

1This matter involves four consolidated grievances, filed between February 4 and September 23, 2021 pertaining to the Grievor’s requests for accommodation relating to her inability, due to a medical condition, to wear a face mask while working in her position as a Court and Client Representative at the St. Catherine’s Ontario Courthouse. This Decision deals with the Employer’s request for the Grievor’s medical records which has been opposed by the Union.

2Two grievances dated February 4, 2021 and July 7, 2021 allege that the Employer violated a number sections of the Collective Agreement including but not limited to Articles 2, 3, 9 Health and Safety, the Ontario Human Rights Code, the Occupational Health and Safety Act and the Respectful Workplace Policy and any other legislation and policies by behaving in an unfair and arbitrary manner related to failing to ensure a workplace free from discrimination, harassment and bullying. The Grievor also claimed that the Employer’s behaviour, including a differential set of expectations and treatment, caused her undue stress and mental anguish which was injurious to her dignity. The Grievor sought that the Employer allow her to wear a face shield in the workplace as an acceptable accommodation, be free from reprisal, and sought other remedies pursuant to the Human Rights Code. A third grievance, dated August 4, 2021 grieves that the Employer unjustly disciplined the Grievor by imposing a one-day suspension because the Grievor attended work without wearing a face mask on July 6, 2021 contrary to her supervisor’s instructions and continued to fail to cooperate in providing further medical information in support of her accommodation. The fourth grievance dated September 23, 2021 arose after the Employer placed the Grievor on an unpaid leave of absence because of the Grievor’s continued refusal to provide medical documentation to support her accommodation request. While this last grievance alleges, among other things, that the Employer failed to accommodate the Grievor, the Union also takes the position that placing the Grievor on an unpaid leave of absence was tantamount to unjust termination of employment.

3As part of case management of these grievances, it was agreed that the Employer would call its evidence first on the suspension grievance and the grievance involving the unpaid leave of absence, with a broad right of reply. The Union would then call its evidence on the failure to accommodate and other allegations raised in the grievances.

Overview

4During the COVID pandemic, Ontario Courthouses remained open because they were designated as an essential service. Courthouse staff were subject to the Ministry’s Personal Protective Equipment (PPE) and Critical Supply Usage Policy, as well as directions from management regarding COVID-19 Health and Safety protocols and procedures. Courthouse staff were required at all times to wear full PPE which included a face mask and face shield and were required to practice other safe social distancing measures. On January 4, 2021 the Grievor advised the Employer that she was unable to wear a face mask for medical reasons. The Employer initially placed the Grievor on an interim accommodation plan pending receipt of further information from her physician to support her accommodation request. The Grievor was assigned on-line duties and was not assigned client facing work. Other terms of the accommodation plan generally included having the Grievor work in a separate jury room with washroom access and having the Grievor ensure that she limit her movement, practice social distancing in common areas and to refrain from using the lunch room when occupied.

5Without getting into the details of all events and email exchanges, which will be introduced in the case on the merits, the Grievor ultimately provided 2 medical notes to the Employer, despite the fact that she initially advised that her doctor refused to provide a medical note to confirm that she could not wear a face mask at work. She also advised that her doctor would not complete the medical questionnaire that the Employer had requested. The Grievor claims that she provided the medical notes despite the fact that she was not required to provide them pursuant to the