HomeMy WebLinkAbout2005-1979.Sparkes.07-01-29 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# 2005-1979,2005-1980
UNION# 2005-0517-0050, 2005-0517-0051
IN THE MATTER OF AN ARBITRATION
Under
THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT
BETWEEN
BEFORE
FOR THE UNION
FOR THE EMPLOYER
HEARING
DEADLINE FOR
WRITTEN
SUBMISSIONS
Before
THE GRIEVANCE SETTLEMENT BOARD
Ontario Public Service Employees Union
(Sparkes)
- 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
Pauline Jones
Staff Relations Officer
Ministry of Community Safety and
Correctional Services
November 23, 2006.
January 12,2007.
Union
Employer
Vice-Chair
2
Decision
INTRODUCTION
The parties have agreed to a Med-Arb Protocol, signed February 27, 2006. Although the
Toronto Jail was not specifically covered by that protocol, at the outset of our session on
September 27, 2006, both the union and the employer agreed to follow the protocol as closely as
possible. 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.
FACTS
These grievances deal with two absences, one in June 2005 and one in July 2005. Both absences
were for five days. The grievor objects to the fact that she was asked for medical certificates
with respect to both absences. She alleges that she spoke to her direct supervisor, Mr. Roth, in
May 2005, and advised him at that time that she had serious medical issues, and that she was
likely to require significant time off, and that there was the possibility she would have to be
replaced. She points to her letter to Mr. Roth, dated June 28, 2005, in which she stated that she
was "fundamentally disappointed" in being advised that Mr. Roth suspected her of abusing sick
leave, "... especially when I had shared my current health situation with you." There was no
3
response to this letter from Mr. Roth. The grievor asserts Mr. Roth's actions were a breach of
Article 44.10 and seeks a declaration to that effect, and a cease and desist order against the
employer.
The employer responds that the grievor's attendance had been a concern and that Mr. Roth
denied that the grievor had advised him of her medical issues. The employer asserts that Mr.
Roth asked the grievor for a doctor's certificate under Article 44.10 of the collective agreement,
on the basis that it was suspected that she might be abusing her sick leave.
DECISION
After carefully reviewing the evidence, and the submissions of the parties, it is my conclusion
that the employer breached the terms of Article 44.10, and I so declare. It is not appropriate,
given the passage of time and potential changes to the grievor's medical condition, to issue a
cease and desist order.
Dated at Toronto, this 29th day of January, 2007.
Barry