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HomeMy WebLinkAbout2004-3472.Gilbert.06-12-19 Decision Crown Employees Grievance Settlement Board Suite 600 180 Dundas Sl. West Toronto, Ontario M5G 1Z8 Tel. (416) 326-1388 Fax (416) 326-1396 Commission de reglement des griefs des employes de la Couronne Nj ~ Ontario Bureau 600 180, rue Dundas Ouest Toronto (Ontario) M5G 1Z8 Tel. : (416) 326-1388 Telec. : (416) 326-1396 GSB# 2004-3472,2004-3473,2004-3474 UNION# 2004-0248-0223,2004-0248-0224,2004-0248-0225 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT BETWEEN BEFORE FOR THE UNION FOR THE EMPLOYER HEARING Before THE GRIEVANCE SETTLEMENT BOARD Ontario Public Service Employees Union (Gilbert) - and - The Crown in Right of Ontario (Ministry of Community Safety and Correctional Services) Barry Stephens Scott Andrews Grievance Officer Ontario Public Service Employees Union Mary-Jo Knappet Staff Relations Officer Ministry of Community Safety and Correctional Services May 24, 2006. Union Employer Vice-Chair 2 Decision INTRODUCTION The parties have agreed to a Med-Arb Protocol, signed February 27, 2006. It is not necessary to reproduce the entire Protocol here. Suffice it to say that, as part of the Protocol, the parties have agreed to a "True Mediation-Arbitration" process, wherein each provides the vice-chair with submissions, which include the facts and authorities each relies upon. The process adopted by the parties provides for a canvassing of the facts during the mediation phase under the Protocol. Arbitration decisions are issued in accordance with Article 22.16 of the collective agreement, without reasons, and are without prejudice or precedent. The parties were unable to resolve this matter in mediation. Accordingly, the matter has been referred to me as a True Mediation/Arbitration decision under the Protocol. At the beginning of the session on May 24, 2006, it was determined that the union had not provided the employer with full or appropriate Appendix B's, as required under the Protocol, and as a result, the employer had been unable to prepare appropriate Appendix C's. I met with the representatives of the parties, and it was agreed the three-day mediation session would proceed. In order to assist the parties, I advised that the union would be expected to prepare appropriate Appendix B' s prior to the discussion of any specific case. This they did, and, in the process, numerous grievances were withdrawn by the union. The employer then reviewed each grievance, and mediation was attempted. There were a number of grievances referred to arbitration, and the employer was provided with a full opportunity to submit formal Appendix C's after the session. FACTS 3 On September 24 and 25, 2003 the grievor left work sick after having a discussion with his manager about a work assignment to a living unit, rather than the exercise yard. The employer takes the position the grievor was not ill, but went home in protest against the employer's unquestioned right to assign work under Article 2 - Management Rights. The grievor failed to produce a medical certificate as required by Article 44.10, and the employer authorized a payroll deduction for both days. The employer takes the position that, if the grievor had any concerns with respect to his assigned work, he was required to "obey now, grieve later." The union argues that the grievor went home sick due to the stress he encountered during the disputes over his work assignments. The grievor advised the employer at the time that he was going home sick, yet no request was made that the grievor bring a medical note to justify the absence. It is now too late for the employer to seek such a note, and the grievances should be upheld. The employer asserts that such a note is required under Article. 44.10 and that assignment of work is a management right under Article 2. DECISION The grievances are upheld in part. The grievor is to be compensated for the two days. I will remain seized to deal with any issues arising from the implementation of this decision. Dated at Toronto, this 19th day of December, 2006.