HomeMy WebLinkAbout2004-1693.Kranstz.06-02-16 Decision
Crown Employees Commission de Nj
Grievance Settlement reglement des griefs
Board des employes de la
Couronne
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Suite 600 Bureau 600 Ontario
180 Dundas Sl. West 180 rue Dundas Ouest
Toronto Ontario M5G 1Z8 Toronto (Ontario) M5G 1Z8
Tel. (416) 326-1388 Tel. (416) 326-1388
Fax (416) 326-1396 Telec. (416) 326-1396
GSB# 2004-1693 2004-2168 2004-2519 2004-3517 2004-3555
UNION# 2004-0234-0413 2004-0234-0511 2004-0234-0596 2004-0234-0708 2005-0234-0005
IN THE MATTER OF AN ARBITRATION
Under
THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT
Before
THE GRIEVANCE SETTLEMENT BOARD
BETWEEN
Ontano PublIc ServIce Employees Umon
(Kranstz) Union
- and -
The Crown In RIght of Ontano
(Mimstry ofCommumty Safety and CorrectIOnal ServIces) Employer
BEFORE Barry Stephens Vice-Chair
FOR THE UNION Stephen GIles
Gnevance Officer
Ontano PublIc ServIce Employees Umon
FOR THE EMPLOYER Rena Khan
Staff RelatIOns Officer
Mimstry of Commumty Safety and
CorrectIOnal ServIces
HEARING December 13 2005
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DeCISIon
The partIes agreed to an ExpedIted MedIatIOn-ArbItratIOn Protocol for the Maplehurst
CorrectIOnal Complex. It IS not necessary to reproduce the entIre Protocol here Suffice It to say
that the partIes have agreed to an expedIted process whereIn each party provIdes the vIce-chair
wIth wntten submIssIOns, whIch Include the facts and authontIes the party Intends to rely upon,
one week pnor to the heanng. At the heanng, oral eVIdence IS not called, although the vIce-chair
IS permItted to request further InformatIOn or documentatIOn. In addItIOn, If It becomes apparent
to the vIce-chair that the Issues Involved In a partIcular case are of a complex or sIgmficant
nature, the case may be taken out of the expedIted process and processed through "regular"
arbItratIOn. Although IndIVIdual gnevors often wIsh to provIde oral eVIdence at arbItratIOn, the
process adopted by the partIes provIdes for a thorough canvaSSIng of the facts pnor to the
heanng, and leads to a fair and efficIent adJudIcatIOn process ArbItratIOn decIsIOns are Issued In
accordance wIth artIcle 22 16 of the collectIve agreement and, therefore, are wIthout precedent.
The gnevances all relate to a dIspute between the gnevor and the employer over a senes of
absences between July 8 and November 27 2004 for whIch the gnevor faIled to provIde medIcal
documentatIOn. The gnevor was not paid for any of the days In questIOn. The gnevor argues
that he was under the Attendance Support Program (ASP) and that he should not have been
subJected to dIscIplIne for hIS attendance untIl he reached Level 3 of the program. He alleges It
was arbItrary and Inappropnate for the employer to suddenly decIde to begIn to treat hIS
absenteeIsm as culpable, rather than contInue to momtor hIS attendance under the ASP
Furthermore, the gnevor asserts that, rather than penalIzIng hIm by dockIng hIS pay for the days
In questIOn, the employer ought to have Invoked Art. 44 9 of the collectIve agreement, whIch
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permIts the employer to reqUIre a medIcal eXamInatIOn by an Independent medIcal examIner
FInally the gnevor argues that the employer had the oblIgatIOn to take all necessary steps to
ensure that he was appropnately accommodated In the workplace
The employer responds that the gnevor was provIded wIth ample opportumty to provIde an
explanatIOn and/or medIcal documentatIOn to explaIn hIS ongoIng InabIlIty to attend work on a
regular basIs He provIded no such InformatIOn, and the employer made a decIsIOn to remove
hIm from the ASP The employer also exercIsed ItS nght to reqUIre medIcal documentatIOn for
each ab sence The employer asserts that the onus IS on the gnevor to prove hIS absences were
legItImate, and, In addItIOn, It was not dIscIplInary for the employer to deny sIck leave pay when
such proof was not forthcomIng.
After reVIeWIng the submIssIOns of the partIes and the collectIve agreement, It IS my conclusIOn
that the gnevances should be allowed In part. In my VIew the gnevor was demed sIck leave as a
dIscIplInary response to culpable absenteeIsm I cannot be certaIn that progressIve dIscIplIne
would not have altered the gnevor's behavIOur and resulted In the dIspute beIng resolved before
November 2004 In recogmtIOn of thIS, I order that the gnevor should be paid the eqUIvalent of
24 hours pay less statutory deductIOns
Dated at Toronto thIS 16th day of February 2006