HomeMy WebLinkAboutMungal 06-03-30
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APR 'Ò> ~ 2606
Concerning an arbitration
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Community Living Mississauga
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Ontario Public Service Employees Union, Local 251
Grievance of Grace Mungal concerning a request for a medical certificate
Arbitrator: Joseph W. Samuels
For the Parties
Union
Mitch Bevan, Grievance Officer
Grace Mungal, Grievor
Employer
Jane A. Roffey, Counsel
K. Tansley, Executive Director
Hearing in Mississauga, March 29, 2006
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Grace Mungal is a "part-time hourly" Support Assistant. She was
scheduled to work on July 12, 2005, but was unable to attend because of
illness. The Employer asked her to bring in a doctor's note when she
returned to work. She refused to bring in the note. The Employer did not
discipline her for failing to abide by its request. Ms. Mungal grieved that the
Employer's request violated the collective agreement.
According to Article 24 of the collective agreement, which defines the
employee categories ("regular full-time", "part-time salaried" and "part-time
hourly"), the "part-time hourly" employee works more than 8 hours and 32
hours or less per week. Pursuant to sub-paragraph (c)(ii), in lieu of all fringe
benefits (which include pay for sick leave), the "part-time hourly" employee
receives 5% of remuneration received for wages.
Article 15 governs pay for sick leave and provides that it will be
granted on the basis of, among other conditions, "(d) an employee upon
returning to work from sick leave may be requested to present proof of
sickness in the form of a medical certificate....".
There is no provision in the collective agreement expressly
authorizing the Employer to request a medical certificate from a "part-time
hourly'~ employee who, by definition under Article 24, is not entitled to pay
for sick leave. There is no provision in the collective agreement expressly
prohibiting the Employer from requesting a medical certificate from a "part-
time hourly" employee. There is no provision in the collective agreement
expressly requiring a "part-time hourly" employee to provide a medical
certificate.
However, according to Article 5, governing Management Rights,
The union acknowledges and recognizes that the
management of the Employer's operations and the
direction of the working force are fixed
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exclusively with the Employer and shall remain
solely with the Employer except as specifically
limited by an express provision of this Agreement.
Without restricting the generality of the foregoing,
the Union acknowledges that it is the exclusive
function of the Employer to:
(a) Maintain order, discipline and efficiency;
(b) Hire, assIgn, retire, discharge, direct,
promote, demote, classify, transfer, lay- off, recall,
suspend or otherwise discipline employees
provided that a claim of discharge or discipline
without just cause by an employee who has
completed his probationary period may be the
subject of a grievance and dealt with as hereinafter
provided;
(c) Make, enforce and alter from time to time
rules and regulations to be observed by all
employees;
(d) Determine III the interest of efficient
operation and highest standards of services;
classifications, and hours of work, work
assignments, methods of doing the work, and the
working establishment for any servIce and
the standards of performance for all employees;
(e) Determine the number of personnel
required, servIces to be performed and
the methods, procedures and equipment to be used
in connection therewith.
This includes the right to introduce new and
improved methods, facilities, equipment and to
control the amount of supervision necessary, and
the increase or reduction of personnel III any
particular area.
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In my view, this provision gives the Employer the right to request a
medical certificate from any employee, including a "part-time hourly"
employee, where it is reasonable for the Employer to make such a request in
carrying out one or more of the exclusive functions set out above. The
Union would have the right to grieve the request for a medical certificate on
the basis that the request was not justified under the particular
circumstances.
Having heard submissions from the parties and having discussed the
issues with the parties, I said that I would make this ruling. In these
circumstances, the Union agreed that it would not proceed further with the
particular grievance of Ms. Mungal, so I did not hear evidence and
submissions concerning the circumstances of the Employer's request to Ms.
Mungal for a medical certificate in respect of her absence on July 12, 2005.
I will remain seized to deal with any issue arising out of this award.
Done at London, Ontario, this 30th day of March, 2006