HomeMy WebLinkAbout2014-0748.Delorme.15-03-24 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#2014-0748
UNION#2014-0499-0029
IN THE MATTER OF AN ARBITRATION
Under
THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT
Before
THE GRIEVANCE SETTLEMENT BOARD
BETWEEN
Ontario Public Service Employees Union
(Delorme) Union
- and -
The Crown in Right of Ontario
(Liquor Control Board of Ontario) Employer
BEFORE Reva Devins Vice-Chair
FOR THE UNION Frank Inglis
Ontario Public Service Employees Union
Grievance Officer
FOR THE EMPLOYER Jennifer Ronayne
Liquor Control Board of Ontario
HR Advisor
HEARING March 18, 2015
- 2 -
Decision
[1] The parties have agreed to an expedited mediation-arbitration process to effect the quick
disposition of grievances and reduce the number of outstanding disputes. Appendix 2
incorporates the parties’ Memorandum of Agreement and confirms that where grievances are
referred to the mediation/arbitration process, the parties will attempt to reach a mediated
resolution, failing which, the Vice Chair will issue a written decision that is without prejudice or
precedent. The parties specifically agreed that this matter was properly referred for expedited
mediation-arbitration as contemplated under Appendix 2.
[2] The grievor was absent commencing on January 2, 2014 for 37 days due to an acute medical
condition. He phoned in daily and left voice mail messages that he would be absent due to
illness. On January 23, 2014, management sent him a letter requesting medical documentation to
substantiate his continued absence. Management also advised him that if it did not receive the
required documentation within a week, no leave with pay would be granted effective January 19,
2014.
[3] The grievor submitted a note from his doctor that identified his medical condition, indicated
that he was undergoing treatment, confirmed the date he first missed work and provided a likely
return to work date of February 21, 2014. The LCBO sent the grievor two subsequent letters
advising that they may be able to provide accommodated work, however, they asked for
clarification from his medical practitioner of the grievor’s functional abilities and/or
accommodation requirements, if any. The grievor responded with notes from his doctor but did
not consent to the disclosure required on the standard Health Care Provider’s Report.
[4] The union and the grievor take issue with the manner in which management handled the
grievor’s sick leave. They allege that the grievor was targeted for negative treatment because of
his union activity; that other employees were not asked for medical documentation until they
returned to work; that it was inappropriate to threaten the grievor with retroactive reduction of
his paid sick leave; that the LCBO set unreasonably short deadlines; that it was inappropriate to
request medical information regarding possible accommodation because no accommodation was
requested and it was clearly inconsistent with the grievor’s diagnosis; that the employer hand
- 3 -
delivered mail in order to intimidate and/or check up on the grievor; and that the employer
breached the grievor’s confidentiality regarding his medical condition. The grievor seeks
reinstatement of all 37 days of sick leave.
[5] The employer acknowledged that it had previously been somewhat lax in requesting medical
documentation to support absence due to illness. However, in the fall of 2013 management began
to require medical notes where there was an extended absence. It also said it endeavors to ensure
that employees are appropriately accommodated, where possible. The LCBO denies that it
targeted the grievor for differential treatment, hand delivered mail to him, tried to intimidate or
check up on him, breached his confidentiality or acted inappropriately.
[6] Having considered the submissions of the parties, I would dismiss the grievance. Article
12.4 of the collective agreement provides that “After five (5) days of absence caused by sickness
or injury, no leave with pay shall be allowed unless a certificate of a legally qualified medical
practitioner is forwarded to the Employer”. In light of this provision, the LCBO is entitled to
request medical documentation prior to the employees return to work where sick leave is being
paid. The employer is also entitled to request information regarding medical restrictions in order
to try to determine whether the employee can be medically accommodated.
[7] I agree with the union that the Employee Consent to Disclose included on the Health Care
Provider’s Report appears to be overly broad. Nonetheless, the grievor refused to provide his
consent and the employer took no action as a result of his refusal. Finally, having considered the
submissions of the parties, I am unable to conclude that the employer attempted to intimidate the
grievor, that it targeted him for differential treatment based on union activity, breached his
confidentiality, acted unreasonably or violated the collective agreement.
[8] The grievance is dismissed.
Dated at Toronto, Ontario this 24th day of March 2015.
Reva Devins, Vice-Chair