GSB# 2022-2962

UNION# 2022-0248-0423

IN THE MATTER OF AN ARBITRATION

Under

THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT

Before

THE GRIEVANCE SETTLEMENT BOARD

BETWEEN

Ontario Public Service Employees Union (Scheurich)

Union

• and -

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

Employer

BEFORE

Adam Beatty

Arbitrator

FOR THE UNION

Laura Johnson Ryder Wright Holmes Bryden Nam LLP Counsel

FOR THE EMPLOYER

Maria-Kristina Ascenzi Treasury Board Secretariat Labour Practice Group Counsel

HEARING

February 7, 2024

Decision

A. Introduction

1On or around April 22, 2022, the grievor filed a grievance alleging that the Employer has failed to accommodate her medical restrictions. The Union provided the Employer with particulars of the grievance (dated November 24, 2023), ("the particulars"). The Employer alleges that some of the particulars expand the scope of the grievance and should be struck. This decision addresses that issue.

2The allegations set out in the particulars can be grouped into two categories. First, the Union alleges that the Employer implemented a shift change that breached the grievor's medical restrictions, violated the Collective Agreement and the duty to accommodate (the "shift change allegations"). Second, the Union alleges that the grievor has been repeatedly assigned duties that go beyond her medical restrictions and limitations (the "assigned duties allegations"). The Union submits that the assigned duty allegations also violate the Collective Agreement and the duty to accommodate.

3The Employer argues that the assigned duties allegations are beyond the scope of the grievance and should be struck from the Union's particulars. The Employer does not challenge the inclusion of the shift change allegations.

B. Background

4The grievor is employed as the Senior Medical Clerk in the Records Clerk classification at the Hamilton Wentworth Detention Centre ("HWDC"). She has been employed in that position since June 18, 2018. From July 2018 until December 2021, the grievor worked the 6:00 a.m. to 2:00 p.m. Monday to Friday shift (the "E6 shift").

5The grievor went off work on or around May 21, 2020 following a second hip replacement surgery. As a result of her surgeries, the grievor has a number of medical restrictions. The grievor provided the employer with a medical report dated June 14, 2021, setting out a number functional limitations. Those limitations are not disputed by the Ministry. The grievor also provided the Employer with medical documentation dated June 26, 2021, July 26, 2021, October 26, 2021, November 30, 2021, December 16, 2021, March 22, 2022, and May 14, 2023.

6The grievor returned to work on July 26, 2021. Prior to her return to work, the grievor was provided with an accessible parking permit. The Employer has four reserved accessible parking spots at HWDC. The accessible parking spots are located closer to the entrance at HWDC.

7In or around mid-December 2021, the grievor was told that she would be scheduled to work the 8:00 a.m. to 4:00 p.m. shift (the "E8 shift"). The shift change took effect on April 4, 2022.

8The grievor remained on the E8 shift until June of 2023 when she was told that she was being returned to the E6 shift on a temporary basis. The grievor remains on the E6 shift to date, although her schedule is reviewed every three or four months and is subject to change.

9On or around March 22, 2022, the grievor provided the Ministry with a medical note recommending that she continue to work the E6 shift. According to the grievor, when she worked the E6 shift, she was able to park in one of HWDC's four reserved accessible parking spots. However, because of the later starting time, and the limited number of spots, she was far less likely to get one of the accessible parking spots when working the E8 shift. If the grievor was unable to park in one of the accessible spots, she had to walk a longer distance to enter the HWDC. Working the E6 shift also allowed the grievor to pick up her grandchildren from school on certain days, attend physiotherapy appointments and go swimming (as part of her treatment and recovery plan).

10The Union submits that the Employer did not adequately accommodate the grievor after she returned to work. According to the grievor, the assigned duties allegations began after she returned to work on July 26, 2021. The grievor alleged that she was asked to carry out the following duties, all of which went beyond her medical restrictions:

a. bringing hard copies of medical files from the medical unit to the file room;

b. moving boxes of supplies or paper; and

c. retrieving or putting away various items including files.

11The grievor claims that she has been required to either complete these tasks herself, ask other members of the staff to help her, or leave the tasks undone. For example, during the period between July 2021 and October 2022, the grievor worked with Ms. Charles. According to the grievor, during that period she regularly asked Ms. Charles to complete those tasks that were beyond her restrictions. Sometimes the grievor's colleague agreed to help. Other times she did not.

12In October 2022, Ms. Charles posted into another position. The resulting vacancy was not posted and filled until sometime in or around June 2023. As a result, during this period of time, the grievor was once again either required to complete the tasks even though they fell outside her medical restrictions or ask others to help with those tasks she was unable to complete.

13The grievor further asserts that during this period she was the only medical clerk. Accordingly, her workload was very heavy and she regularly had to work overtime just to complete the tasks she was assigned.

14The medical clerk vacancy was filled in or around June 2023. According to the grievor, the successful applicant only worked in the role for approximately 5-7 business days before being reassigned to work in a different position. At point, the grievor was once again left without any assistance in completing the tasks that fell outside her medical restrictions.

15The grievor also alleges that towards the end of January 2023, Ms. McNabb, a Correctional Officer, was assigned to help her. However, Ms. McNabb also had a number of medical restrictions and therefore could not help with all of the tasks assigned to the grievor. In or around September 2023, Ms. McNabb went off on a medical leave. Since that period of time, the grievor has been largely working alone with only occasional help. The grievor alleges that during this period she continues to be asked to complete tasks that fall outside of her medical restrictions and has had to work overtime in order to complete her workload.

C. The Grievance

16The Statement of grievance states as follows:

The employer is in violation of Article 2 (Management Rights); Article 3 (No Discrimination/Employment Equity). The senior Administration of HWDC has disregarded documentation from the employee's physician and failed to accommodate or assist the grievor in anyway starting on April 4, 2022 and going forward. They have created barriers contrary to the Provincial Disability Accommodation Policy.

17The Settlement desired states:

To recognize her medical documentation and return her to E6 shift. Administration to apologize for the undue stress that this has caused. For any sick time accrued since her doctors note was submitted, not count against her and paid at 100 percent, and be made whole.

D. Principles applied to allegations of an impermissible expansion

18Whether an issue amounts to an impermissible expansion of a grievance depends on whether it can be said that the issue flows from, or is inherent to, the grievance. Where it is, the issue is considered to be in-scope and is within the jurisdiction of an arbitrator to address. Where an issue cannot be said to flow from a grievance, the issue is outside the scope of the grievance and an arbitrator will not have the jurisdiction to consider it.

19The case law establishes a number of guiding principles. Grievances should be given a liberal reading. They should not be won or lost on technicality of form. They should be interpreted so that the real issue between the parties can be determined.

20The case law also establishes that giving a liberal reading is not an open ended invitation to add issues to a grievance. The parties do not disagree over the applicable principles. Rather, they disagree on the application of those principles to the facts of this case.

21In Ontario Public Service Employees Union (Boudarga) and Ontario (Ministry of Government and Consumer Services), GSB# 2018-1811 (McLean), the Board cited the decision in Re Greater Sudbury Hydro Plus Inc. (2003), 121 L.A.C. (4th) 193. In that decision, Arbitrator Dissanayake noted the tension between giving a grievance a liberal reading on the one hand while not granting a carte blanche to include any and all issues irrespective of any connection to the grievance on the other. Arbitrator Dissanayake held:

I find two countervailing principles in the foregoing statement by the Court of Appeal. The first is that, where on a liberal reading of the grievance an issue, although not articulated well, is inherent within it, an arbitrator ought to take jurisdiction over that issue, despite any flaws in form or articulation. However, there is also a countervailing principle to the effect that an arbitrator ought not, in the guise of "liberal reading", permit a party to raise at arbitration an issue which was not in any manner, even inherently, joined in the grievance filed. To do that would be to defeat the very purpose of the grievance and arbitration procedure.

22In Re Ontario Public Service Employees Union (Labanowicz) and Ontario (Ministry of Transportation) GSB # 2012-3224 and others (Lynk), the Board reached a similar conclusion. The Board held that a party is not permitted to add a "substantively different grievance to the matter(s) in dispute in the original grievance." He went on to hold that:

The grievance process is not so elastic so as to permit the joining of issues that are truly unconnected – measured by its connectedness in fact, in substance, and in time – with the reasonably understood meaning and coverage of the drafted grievance language.

23Whether an issue flows from a grievance requires an objective assessment. In Re Labanowicz, supra, the Board discussed factors that may be considered in making that assessment. Those factors include:

(i) the language of the grievance;

(ii) the language of the Collective Agreement;

(iii) other relevant evidence that would cast light on the parties' understanding of the grievance;

(iv) the remedy sought;

(v) the time frame involved; and

(vi) the degree of prejudice, if any, suffered by the employer if the issue was included in the grievance.

E. Application of Principles to this Case

(i) Position of the Ministry

24The Ministry argued that the grievance before me was really about the shift change allegations not the assigned duties allegations. According to the Ministry, the latter allegations amount to an impermissible expansion of the grievance and should be struck. The Ministry advanced four principal arguments in support of its position.

25First, the Ministry argued that the language in the grievance and the remedy sought made it very clear that the grievance was about the shift change allegations. The Employer emphasized that there were no allegations in the grievance about the grievor being assigned work beyond her medical restrictions. Nor did the remedy sought by the grievor include any reference to the duties the grievor was being assigned. Finally, the Ministry pointed out that the grievance stipulates that the conduct at issue started on April 4, 2022. April 4, 2022 was the day the grievor started working the E8 shift.

26The Ministry noted that "Appendix "B" Grievor Summary" ("Appendix B") provided additional details with respect to the grievance. Appendix B refers to the shift change on April 4, 2022 and alleges that despite being provided with a medical note from the grievor's physician, the Employer was unwilling to accept the medical note, meet with the grievor to discuss the note, or follow up with her physician with additional questions.

27In Appendix B, the grievor wrote that a medical note was submitted to Staff Services L. De Vries prior to the shift change taking effect on April 4, 2022. That medical note was written on March 22, 2022 and relates to the shift change in question. The Employer argued that Appendix B did not raise or address the assigned duties allegations. The Employer emphasized that the medical documentation referred to in Appendix B speaks to the shift change allegations only. It does not refer to the assigned duties allegations.

28In terms of the remedy sought, the Ministry noted that the grievor was seeking to have the Employer "recognize her medical documentation and return her to [the] E6 shift". The grievor also sought an apology from the HWDC administration for any undue stress and that any sick time used since "her doctor's note was submitted not count against her" and that she be paid at 100 percent. The Employer argued that the medical note referred to in the "Settlement desired" portion of the grievance is the March 22, 2022 medical note. As set out above, that medical note speaks only to the shift change.

29Second, the Employer noted that the grievance was contemporaneous to the shift changed being implemented. The grievance was filed on or around April 22, 2022, fourteen days after the shift change was implemented. Conversely, the assigned duties allegations start in or around July 2021 following the grievor's return to work. There is nothing in the grievance that would support expanding the temporal scope of the grievance to include allegations dating back to 2021.

30The Employer argued that the Board's decision in Re Labanowicz supported its position. In that decision, the Board concluded that the grievance was focussed on a redeployment process that was triggered by a layoff notice issued in March 2012 and that there was no language that could support extending the grievance to issues that occurred before this period. The Board held as follows:

The evidence that the Union wishes to lead about the supervisor's commitments purportedly made in 2010 and 2011 clearly belongs to a separate and distinct time period that arose before the period of time specifically referred to in the grievances.

And later, the Arbitrator concluded as follows:

However, the September 2012 grievances are directed at the specific period of time after March 2012, and exclude, by their express language, any coverage of job security related issues that may have arisen beforehand.

According to the Employer, the grievance is focussed on the shift change allegations. The shift change took effect on April 2, 2022. The assigned duties allegations belong to a distinct period of time and should not be included in the grievance.

31Similarly, in Louis, supra, the Board struck portions of the Union's particulars that pre-dated the filing of the grievances at issue.

32Third, the Ministry argued that allowing the Union to rely on the assigned duties allegations would be inherently prejudicial to the Employer. The Employer argued that the assigned duties allegations should have been grieved at the time they occurred. The Employer argued it had no opportunity to address or consider these claims at the time they allegedly took place.

33Fourth, and finally, the Employer relied on the decision in Fanshawe College and O.P.S.E.U., 2002 CanLII 79073 (ON LA), 113 L.A.C. (4th) 328 (Burkett) where the Arbitrator held:

The acid test is whether an issue not encompassed within the grievance that requires the calling of evidence and the making of legal submissions has been raised. Without restricting the authority of an arbitrator to fashion an appropriate remedy at the conclusion of a case, which may or may not differ from the remedy sought, it is the statement of grievance read in conjunction with the remedy sought that defines the essential nature of the grievance and the issues that have been raised by the grievance, thereby allowing an arbitrator to decide if a grievance has been improperly expanded.

34Applying this approach to this matter at hand, the Employer argued that the assigned duties allegations would require calling additional evidence and making submissions beyond the scope of the grievance as originally filed. Accordingly, the Employer argued that I should conclude that the only issue in scope of the grievance is the shift change allegation and that all other allegations, including the assigned duties allegations, should be struck.

35In the event I were to conclude that the assigned duties allegations did form part of the grievance, the Employer reserved the right to argue that any potential remedy should be limited to 30 days prior to the filing of the grievance in April 2022.

(ii) Position of the Union

36According to the Union, there has been no expansion of the grievance. The Union argues that the grievance raises two issues: the shift change allegations and the assigned duties allegations. The Union argued that granting the Employer's preliminary objection would be an overly technical approach to the grievance and would prevent the parties from dealing with the real dispute in the grievance.

37The Union relied on the following decisions in support of its position: Blouin Drywall Contractors Ltd. v. C.J.A., Local 2486, 1975 CanLII 707 (ON CA), [1975], O.J. No. 31 (CA); Liquid Carbonic Inc. v. U.S.W.A., 1992 CanLII 14618 (ON LA), 25 L.A.C. (4th) 144 (Stanley); North Bay General Hospital v. O.P.S.E.U., 2006 CanLII 53942 (ON LA), 154 L.A.C. (4th) 425 (Randall); and O.P.S.E.U. (Louis) and Ontario (Ministry of Training, Colleges and Universities), 2019 CanLII 78767 (ON GSB) (Gee).

38The Union relied on the factors set out in Re Labanowicz, supra, in support of its position that that the assigned duties allegations formed part of the grievance and did not constitute an impermissible expansion. Specifically, the Union argued that the language of the grievance, the remedy sought, Appendix B, the time frame at issue, and the lack of any prejudice to the Employer, all supported the conclusion there was no expansion of the grievance.

39First, the Union argued that the language of the grievance related as much to the assigned duties allegations as it did to the shift change allegations. The Union noted that the statement of grievance alleges violations of Article 2 and 3 of the Collective Agreement. It also alleges that the senior administration of HWDC has disregarded documentation from the grievor's physician, failed to accommodate or assist the grievor from April 4, 2022 onwards, and created barriers contrary to the Provincial Disability Accommodation Policy. According to the Union, the assigned duties allegations fall within the alleged violation of Article 3 of the Collective Agreement, the alleged failure to accommodate and the alleged creation of barriers.

40Second, the Union argued that the remedial request also supported the conclusion that the grievance encompassed both the assigned duties allegations and the shift change allegations. The Union argued that remedy sought includes two distinct components. First, the grievor is seeking to have the Employer recognize her medical documentation. Second, the grievor is asking to be returned to the E6 shift.

41Third, the Union took the position that Appendix B also supported the conclusion that the grievance included both the assigned duties allegations and the shift change allegations. The Union noted that the grievor's summary in Appendix B claims that the "Employer is failing to recognize her physician's documentation and failing to assist in any workplace accommodation." Similarly, in the remedy sought section of Appendix B, the grievor reiterates that she is seeking to have the Employer "recognize her medical documentation" and return her to the E6 shift.

42Fourth, the Union argued that the shift change allegations and the assigned duties allegations overlap in time. The Union submitted that the assigned duties allegations amount to a continuing grievance. The Union alleges that the grievor has been asked to perform duties that go beyond her medical restrictions on a number of occasions. She did not immediately recognize that this would be an ongoing issue. According to the Union, it was only once she understood that she would continue to be assigned duties that went beyond her medical restrictions that the grievor filed her grievance. Viewed in that light, the Union submitted that the assigned duties allegations fall within the same time frame as the shift change allegations.

43Fifth, the Union argued that including the assigned job duties allegations in the grievance did not prejudice the Employer. In response to the Employer's argument that it did not have a chance to respond to the assigned duties allegations earlier, and as such was inherently prejudiced, the Union noted that in this case the parties did not have any step meetings or a formal resolution meeting. The Union took the position that it detailed its allegations at the first opportunity. The Union argued that holding step meetings and formal resolution meetings is an important part of the grievance procedure under the Collective Agreement. It allows the Employer to get details of the grievance and discuss them with the Union. It is also falls under the Employer's control. In this case, the Employer chose not to engage in that process. As such, to the extent there is any prejudice, (a position the Union rejects), the Union argues it flows from Employer's failure to engage in the grievance procedure.

(iii) Analysis

44The assigned duties allegations do not amount to an impermissible expansion of the grievance. As such, the Employer's motion to have the particulars struck is denied.

45Allegations that "flow naturally from" or are "inherent to" the grievance are considered to be in-scope of the grievance. Allegations that raise new issues that are distinct from the original grievance are beyond the scope of the grievance. Attempts to include any distinct allegations within the grievance constitutes an impermissible expansion of the grievance.

46Grievances are to be given a liberal reading. Grievances should not be won or lost on technicality of form. Grievances should be interpreted so as to allow the parties to address the real issue between them. That being said, there are limits to how expansively grievances can be read. Allegations that are clearly distinct from the issues raised in the grievance should not be heard under the guise of a liberal reading of the grievance.

47As set out in Re Labanowicz, supra, there are a number of factors arbitrators look at when determining if allegations constitute an expansion of a grievance. In this matter, the parties focussed on the wording of the grievance, the remedy sought, other evidence that casts light on the parties' understanding of the issues raised by the grievance, the applicable time frame and the degree of prejudice to the Employer.

48The wording of the grievance, when given a liberal reading, supports the conclusion that the grievance includes the assigned duties allegations. Specifically, the second sentence of the grievance states:

The senior Administration of HWDC has disregarded documentation from the employee's physician and failed to accommodate or assist the griever [sic] in any way starting on April 4, 2022 and going forward.

49As argued by the Union, this portion of the Statement of Grievance includes two components. First, it alleges that the senior Administration of HWDC has disregarded documentation from the employee's physician. Inherently, that allegation includes the assigned duties allegations. Second, it alleges that the senior Administration of HWDC has failed to accommodate or assist the grievor in anyway starting on April 4, 2022 and going forward. That allegation is a direct reference to the shift change allegation.

50The statement of grievance does not refer to one specific document from the grievor's physician. As set out above, the grievor's physician had provided the Ministry with more than just the March 22, 2022 note. The grievor had provided a physician's report dated June 14, 2021 setting out her physical limitations following her second hip surgery. The Board was also provided with additional medical documents that had also been provided by the grievor's physician to the Employer. Accordingly, reference to "documentation from the employee's physician" is broader than just the March 22, 2022, note. In that context, the grievance put the Ministry on notice that the grievor was alleging that the medical documentation that had been provided to the Employer had not been properly considered. That is the same allegation that the Union makes in the particulars at issue in this motion. In that sense, based on the language of the grievance, I am satisfied that the assigned duties allegations flow from the grievance.

51The Employer's interpretation of the statement of grievance is narrow and technical. It reads down "documentation from the employee's physician" to only one note from the grievor's doctor and over-emphasizes the reference to April 4, 2022 to the exclusion of any allegations that came before that date. Such a narrow focus is inconsistent with the broad and liberal reading grievances should be given. It also impedes the parties' ability to address the actual dispute.

52The same conclusions can be drawn from the remedy requested by the grievor. In the "Settlement desired" section of the grievance form, the first sentence seeks to have the employer "recognize her [the grievor's] medical documentation and return her to E6 shift." That sentence, read liberally, contains two elements. First, it seeks to have the Employer recognize the medical documentation the grievor has provided. As discussed previously, the medical documents provided go well beyond the medical documentation provided in support of the shift change grievance.

53Second, it seeks to have the grievor returned to the E6 shift. In the context of this grievance, where the Employer had been provided with a number of medical documents by the Grievor's physician, it would be overly technical and unduly narrow to interpret the remedy requested as limited to the medical documentation going to the shift change issue. It would also be contrary to the authorities referred to above.

54Finally on this point, Appendix B provides further support for the conclusion that the assigned duties allegations are in-scope of the grievance. While the grievor provided additional details about the shift change allegations in Appendix B, she also referred to her medical needs going back to 2020. The remedy sought in Appendix B is identical to the remedy requested in grievance form.

55Next, the time frame captured by the shift change allegations and the assigned duties allegations overlap. According to the Union, the grievor was notified of the shift change in December 2021. There was a meeting on March 17, 2022 when the grievor was given formal written notice of the shift change. The shift change was then implemented on April 4, 2022. In June 2023, the grievor was moved back to the E6 shift, although she was also told that the move was not permanent and that her schedule would be subject to review every three months going forward. That is the situation the grievor currently finds herself in.

56The particulars provided by the Union outline various time frames where it alleges the grievor was being assigned work outside of her restrictions. According to the Union, the assigned work allegations began shortly after her return to work on July 26, 2021. The Union also alleges the grievor was assigned work beyond her medical restrictions during the period between June 2021 and October 2022 and during the period January 2022 – January 2023.

57This brief summary shows that while the shift change allegations and the assigned duties allegations do not cover the exact same period of time; they do overlap. The shift change allegations begin in December 2021 and continue to the present. The assigned duties allegations begin in July 26, 2021 and continue through to January 2023. Those time frames are sufficiently proximate to distinguish the facts in this matter from the facts in Re Labanowicz where the Board concluded that additional allegations were from a "separate and distinct time period."

58Lastly, I am satisfied that there is no inherent prejudice to the Employer in allowing the assigned duties allegations to proceed. First, for the reasons set out above, I am satisfied that the issue of the Employer being assigned duties that went beyond her medical restrictions is properly raised in the grievance. As such, the Employer was on notice at the time the grievance was filed. Second, the Employer has reserved the right to argue that any remedy be limited to 30 days before the filing of the grievance.

59Taken as a whole, the central issue raised in this grievance is whether the Employer has ignored medical documentation provided by the grievor, and in so doing, violated the Collective Agreement and the duty to accommodate. The language of the grievance, the remedy sought, and Appendix B, all indicate that the grievor was concerned that her medical documentation was being ignored by the Employer. The assigned duties allegations flow naturally from this issue. As such those allegations do not constitute an impermissible expansion of the grievance.

60The medical documentation at issue included, but was not limited to, medical documentation speaking to the shift change. To limit the issue only to the shift change would be inconsistent not only with what the documents themselves state, but also with the case law on how grievances should be read. Accordingly, I decline to do so.

61For all of the foregoing reasons, the Employer's motion is denied. This matter will proceed as scheduled.