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HomeMy WebLinkAbout2011-2615.Gareau.14-08-27 DecisionCrown Employees Grievance Settlement Board Suite 600 180 Dundas St. West Toronto, Ontario M5G 1Z8 Tel. (416) 326-1388 Fax (416) 326-1396 Commission de règlement des griefs des employés de la Couronne Bureau 600 180, rue Dundas Ouest Toronto (Ontario) M5G 1Z8 Tél. : (416) 326-1388 Téléc. : (416) 326-1396 GSB#2011-2615, 2011-2936 UNION#2011-0582-0057, 2011-0582-0065 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN Ontario Public Service Employees Union (Gareau) Union - and - The Crown in Right of Ontario (Ministry of Community Safety and Correctional Services) Employer BEFORE Felicity D. Briggs Vice-Chair FOR THE UNION Jackie Crawford Ontario Public Service Employees Union Grievance Officer FOR THE EMPLOYER Sia Romanidis Ministry of Government Services Centre for Employee Relations Employee Relations Advisor HEARING SUBMISSIONS CONFERENCE CALL June 20, 2014 July 4, July 18, 2014 August 15, 2014 - 2 - Decision [1] At our recent Med/Arb sessions at the Toronto East Detention Centre the parties agreed to deal with the grievances of Conrad Gareau by way of written submissions. It was understood that this decision would be in accordance with the Med/Arb Protocol, that is to say, without precedent or prejudice. [2] Mr. Gareau filed two grievances alleging that the Employer “inappropriately applied the ASMPP contrary to policy guidelines.” He also alleged that the Employer “inappropriately applied the ASMPP without taking reasonable steps to deal with my personal circumstances and dealing with me in an untimely fashion.” [3] By way of remedy he sought all of the sick time he took in 2010 and 2011 removed from “the record”; removal from the ASMPP program; thirty days of vacation; reinstatement of the one time voluntary option for ASMPP; revision of the Voluntary Option Plan request form to a form acceptable to him; and revision of the Employer ASMPP policy “on sick time and doctors’ notes to take into account employees’ circumstances. [4] In accordance with the Med/Arb protocol, it is not my intention to set out all of the facts and submission made in this matter. I was provided with fulsome, able submissions as well as many relevant documents – all of which I have read and taken into account. Additionally, a conference call was held to clarify certain matters with counsel. [5] It is sufficient to say that Mr. Gareau has moved through the ASMPP program as the result of taking many sick days. On a number of occasions he asked the Employer to change his sick days for compassionate days and in some instances the Employer agreed. Further, he exercised the Voluntary Option to reduce his position in the ASMPP on November 8, 2011 and was reduced to Level 2. At the time of writing this decision Mr. Gareau is no longer in the program. [6] According to Mr. Gareau, he was having a number of significant personal and family issues during the period from 2009 to 2011. The veracity of this statement was never disputed by the Employer. [7] The issues that come to the fore in these grievances are – the timeliness of the Employer’s notification regarding an employee’s status in the program; responsibility for keeping track of one’s sick leave; and bundling of sick days without a physician’s note. [8] I am concerned about the thirteen month period that elapsed between the time when the grievor entered Level 2 of the program and when he received notice of a meeting to be held to discuss his status at that level. Indeed, during that thirteen-month period he - 3 - triggered entry into both Level 3 and 4 without being given notice that he had done so. At the time that he met with the Employer to discuss triggering into Level 2, Mr. Gareau was actually at Level 4. I find this fact troubling. [9] If the purpose of the program and meetings held within the Program is to assist the employees with their attendance thereby reducing their sick leave, it is difficult to understand how this can be done with such delays. Indeed, such delays might well be negatively viewed if an employee was terminated under the program. Having said that, I must agree with the Employer that this deficiency does not bring about the remedies requested by the grievor. [10] Accordingly, I declare that the Employer did not follow its policy in this instance with respect to the timing of notice and meetings. [11] It should be clear that although I am of the view that the Employer did not sufficiently follow the time lines in its program in this instance I am not suggesting that the grievor has no responsibility for monitoring his own sick leave. Even under difficult personal circumstances, employees know – or ought to know – how many sick leave days they are utilizing. Mr. Gareau would have known that he was absent from the workplace on days he was scheduled to work on a number of occasions. Although the Employer was lax in notifying the grievor of his placement in various levels of the program, that does not mean that he should be treated as if those absences never occurred and that is what the grievor is asking in his requested remedies. [12] I note that the Employer did take the grievor’s personal circumstances into account as evidenced by the number of compassionate days that were granted during this period even when those days were requested after the absence. [13] Finally, the grievor appeared to be of the view that it should have been sufficient for him to inform the Employer of his personal circumstances and announce that he was experiencing stress. It is not. It may well be that some of the days taken by the grievor were as the result of stress related illness. However, in order for those absences to be bundled a physician’s note is needed. This was explained to the grievor during his time in the program and even if he disagreed with this view, he should have obtained a note from his physician and provided it to the Employer. - 4 - [14] Except to the extent set out in the above declaration, the grievances are denied. Dated at Toronto, Ontario this 27th day of August 2014. Felicity D. Briggs, Vice-Chair