P-2004-2738

IN THE MATTER OF AN ARBITRATION

Under

THE PUBLIC SERVICE ACT

Before

THE PUBLIC SERVICE GRIEVANCE BOARD

BETWEEN

Nancy Marshall

Grievor

• and -

The Crown in Right of Ontario (Ministry of Health and Long-Term Care)

Employer

BEFORE

Kathleen G. O’Neil

Vice-Chair

FOR THE GRIEVOR

Nancy Marshall Eugene Marshall

FOR THE EMPLOYER

Simon Heath Counsel Ministry of Government Services

HEARING

March 22, 2006.

Decision

This decision deals with the grievance of Nancy Marshall, as limited by the Board’s interim decision dated November 7, 2005. In that decision, the grievance was dismissed, for reasons related to delay and mootness, with the exception of the portion of the grievance that alleges that the grievor should not have been returned to her home position in August 2004 for medical and health reasons. The issue now before the Board is whether there was a health reason which meant that she should not have returned to her home position at that time, and that the employer was in breach of a term or condition of her employment when it returned her nonetheless.

When the matter reconvened, the grievor gave her evidence in chief, submitted a brief of documents and indicated that she was not intending to call other witnesses. At that juncture, employer counsel asked that I dismiss the grievance on the basis that the evidence did not make out a sufficient case for the grievor to succeed, i.e. there was no prima facie case. The rest of this decision deals with that motion.

Background

The grievor’s home position since September 2000 is that of Office Manager in the Toronto Region Office. She was out of her home position on secondment between June 2002 and July 2004. The timing of the grievance was coincident with the fact that the latest of her secondments had come to an end on July 16, 2004. She enjoyed the work in her seconded positions, feeling freer to do her job effectively, and wished to continue. When an earlier secondment was coming to an end in January 2004, she had approached her Human Resources consultant and requested a further secondment. She obtained a further short secondment from April to July, 2004, but that position was over, she was told to go back to her home position, which started after her vacation which ended on August 13, 2004.

The grievor had written a letter of complaint to her Deputy Minister on January 24, 2003, indicating among other things that she could not go back to work at the Toronto Region, citing the dysfunctional and unhealthy workplace environment. In July 31, 2004, she filed this grievance, alleging harassment and a poisoned work environment. As part of the grievance she states that “for medical and health reasons I cannot return to this dysfunctional and unhealthy workplace environment.” At the hearing of this matter, she indicated that the health reason that should have prevented the employer from returning her to her home position was that she was working in a stressful environment. She did not feel she could be effective as a manager with what she experienced as interference from her Director, Marnie Weber, and the dysfunctional work environment which she says has affected her health.

Ms. Marshall testified that, once she had been told to return to her home position, she consulted her doctor, because she knew going back to the same position with the structural issues unchanged would not be healthy. The doctor’s advice was to see how it went, and they would take it from there. She said that at the time, because she had been in other jobs for two years, she was well, although she felt stressed at the idea of going back to her home position. She said that “my doctor does not just let me go off for no reason”, that her health was not bad enough then. Nonetheless, she felt that returning was negative to her health, and that her concerns had been ignored by senior officials in the Ministry, and that the problems are still ongoing.

The grievor is of the view that the employer breached her right to work in a safe and healthy environment by not intervening or doing anything about the negative situation in the Toronto Region office. She asserts that the employer deliberately returned her to a dysfunctional work situation, against all the advice and evidence they had. Further, she alleges that this has caused her to become sick. Specifically, Ms. Marshall focuses on the dual reporting system which is still in place in the Toronto Region. This refers to a longstanding complaint of Ms. Marshall’s that the structural arrangement in her office was inefficient, confusing and stressful. Eight administrative staff report to her but work for Toronto Regional managers. This creates a difficult situation for her because she does not see their everyday work, but is responsible for managing them and doing performance appraisals and disciplining these employees. The other regional offices do not have this structure, and she is of the view that they all work more effectively as a result. She has been frustrated by what she experiences as a lack of support from senior management, in that she has suggested that the other arrangement was better, and has spoken with her Human Resources consultant many times, but the structure has not been changed.

The grievor did return to her home position in August 2004, and worked for ten months until, in her submission, the situation made her ill, and she went off on sick leave on June 16, 2005. She once again returned back to work on October 31, 2005. Although the grievor is dissatisfied with many things since her return to her home position in August 2004, the issue remaining from the grievance filed in the summer of 2004 is related to the decision of the employer to return to her to home position, and that is the necessary focus in this decision.

In terms of medical evidence, there is no evidence relating to the summer of 2004 when the grievor returned to her home position. There is only the grievor’s own account of her conversations with her doctor. There is some evidence concerning the grievor’s health in the following year, starting with a note from her doctor dated June 17, 2005 stating that the grievor was unable to return to work indefinitely, and that she was under his care. The next medical document is dated July 15, 2005 indicating that the grievor’s specific work-related limitations were “stressful environment at work and she cannot concentrate at work”. A further document bears the date August 3, 2005, in which the grievor’s physician answers questions from the employer as to what accommodation might be required for the grievor to return to work. The answers indicate that the doctor was of the view that she was unable to perform the duties of her job at that time, and that the condition was temporary.

In reply to employer counsel’s request that the Board dismiss the grievance on the basis that the evidence shows that there was nothing to stop her from returning to her home position or the secondment from ending in the summer of 2004, it is the grievor’s position that the subsequent medical situation indicates that her concern that returning to her home position would lead to a deterioration in health was true.

In order to succeed with this grievance, the grievor needs to establish that there was a health reason which indicated she should not return to her home position in the summer of 2004, and that the employer breached a term or condition of her employment when she was directed to return nonetheless. The evidence does not establish that such a health reason existed at the time of her return to her home position. Her own evidence indicates that she was well at the time, although apprehensive about returning. There is no other evidence which contradicts that. On this basis alone, it is clear that this one remaining portion of Ms. Marshall’s grievance cannot succeed.

Moreover, there is nothing to indicate that the employer breached any term or condition of employment in returning her to her home position. Taken at its highest, the grievor’s evidence is that she made Human Resources personnel aware in January 2004 that she would prefer to continue in secondments because she feared her health would deteriorate if she returned to her home position. The fact that the supervisor who had earlier been the focus of her concerns was no longer there had not sufficiently resolved her concerns. The link between the conversations in January and the argument that the employer should not have returned her to the Toronto Region over six months later appears to be the suggestion that the employer should have known from earlier conversations concerning her secondments that her health would be negatively affected. This is not enough to prove that the employer has breached some term or condition of her employment. It is generally not appropriate for an employer to assume an employee has a disability at all, let alone one sufficient to prevent them from doing their regular job, in the absence of specific communication from the employee to this effect. There is simply no evidence that Ms. Marshall communicated anything to this effect to the employer in, or relating to, the summer of 2004. Her recent evidence is that she has no medical evidence from her own doctor to support that assertion. The fact that the grievor felt apprehensive about returning to her home position, and the structural situation which she found unsatisfactory, does not amount to a “health problem indicating she should not have been returned to the Toronto Region” as alleged in the grievance, in the face of the evidence about the state of her health in the summer of 2004.

A substantial focus of the grievor’s remarks at the hearing and in the material submitted relates to the idea that her subsequent need for sick leave in October 2005 vindicates her position that she should not have been returned to the Toronto Regional office. This later sick leave occurred ten months after the disputed return to work, and the medical evidence before me does not say anything about the period in dispute here, which is the summer of 2004. Thus, the period of sick leave in 2005 does not assist the grievor’s case, given her own evidence that she was well at the time she returned, and that her doctor’s advice was to try it and see how it went.

In the result, the remainder of the grievance is dismissed, as the grievor has not established that she had a health problem in the summer of 2004 which prevented her from returning to work, or that the employer breached a term or condition of her employer by returning her there.

Dated at Toronto this 15th day of May, 2006