HomeMy WebLinkAbout2016-1257.Vahey.17-11-20 Decision
Crown Employees
Grievance Settlement
Board
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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#2016-1257
UNION# 2016-0308-0009
IN THE MATTER OF AN ARBITRATION
Under
THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT
Before
THE GRIEVANCE SETTLEMENT BOARD
BETWEEN
Ontario Public Service Employees Union
(Vahey) Union
- and -
The Crown in Right of Ontario
(Ministry of Community and Social Services) Employer
BEFORE Daniel A. Harris Arbitrator
FOR THE UNION Andrew Mindszenthy
Ontario Public Service Employees Union
Grievance Officer
FOR THE EMPLOYER Jonathan Rabinovitch
Treasury Board Secretariat
Legal Services Branch
Counsel
TELECONFERENCE July 11, 2017
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DECISION
[1] In this matter the Union states that the Employer has breached the terms of a
Memorandum of Settlement (MOS) entered into by the parties on May 10, 2017.
[2] The thrust of the MOS is that the grievor had been working a reduced work week
of three days, with the other two days per week being paid under the Short Term
Sickness Plan (STSP). That arrangement had been agreed to with local
managers as an accommodation. When it came to the attention of senior
management, it was determined that article 44, the Short Term Sickness Plan did
not apply to the furtherance of such an accommodation pursuant to the Ontario
Human Rights Code.
[3] As a result of a grievance filed on behalf of the grievor, the parties entered into
the aforesaid MOS. Part of that agreement was that the employer would no
longer approve use by the grievor of the STSP for this accommodation,
presumably since it was agreed that such use of STSP was not a proper
accommodation. The employer agreed to a grace period, but that usage was to
stop effective July 7, 2017.
[4] As the cut-off date of July 7, 2017 approached, the grievor provided medical
certificates purporting to indicate that she should be off work for five days per
week, not the two she previously had been approved for. The medical note,
dated June 20, 2017, reads in part as follows:
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During our session on June 2, 2017, Ms. Vahey-Calberry noted she is no longer
able to continue with a reduced work week, including two days paid through sick
benefits. Her only option is to return to working a full work week, or continue with
the same reduced work week, without two days of paid benefits. With the
reduction in income, this would cause her financial strain, increasing her level of
stress.
It is recommended that Ms. Vahey-Calberry continue with a reduced work week,
including two days of sick benefits. This would allow her the time to continue
treatment, as well as transitioning her back to her premorbid state. Exposure to
public settings and engagement in day-to-day activities, including occupational
tasks, are beneficial and instrumental in Ms. Vahey-Calberry’s recovery;
however, engagement in ongoing therapy is also a necessary component to her
recovery. In the event this option is not available, it is recommended that Ms.
Vahey-Calberry remain off work for the duration of treatment. This is expected to
require approximately three months of time, allowing for twelve to fifteen weekly
sessions, commencing July 7, 2017 through to October 13, 2017.
[5] On the face of this note, it is clear that the grievor is not totally disabled from
working. In fact, it is noted that engaging in occupational tasks is beneficial.
Also, it states that if she cannot have two days off per week, she should have
five.
[6] The purpose of the MOS, and the clear intention of the parties, was to bring to an
end the use of STSP to fund the two days off she had been taking previously.
[7] Article 44 – Short Term Sickness Plan deals with employees who are unable “to
attend to his or her duties due to sickness or injury”. There is no doubt here that
the grievor suffers from a sickness. It is also apparent that the parties, in the
MOS, recognized that the STSP did not apply to the grievor’s circumstances with
respect to funding two days off per week for treatment. The treatment, according
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to the medical note above, was once per week. It seems that it was never the
case that the grievor was unable to attend to her duties due to sickness. Indeed,
her therapist is of the view that it would be beneficial for her to engage in
occupational tasks.
[8] I am asked to assess whether there has been a breach of the MOS and this
decision is limited to that jurisdiction. The MOS intended to bring to a halt the
use of STSP benefits of two days off per week. There is no breach of the MOS
in not permitting the expansion of the use of STSP benefits to five days per week
when the medical note from the treating medical practitioner indicates that
treatments are required once per week and the preferred course of treatment
would include working.
[9] On the evidence before me, as this was a telephone conference call hearing, the
employer was prepared to accommodate the grievor’s schedule. It was not
prepared to expand the use of STSP benefits, which had been brought to a halt
pursuant to the MOS.
[10] I find that there was no breach of the MOS.
Issued in Toronto this 20th day of November, 2017.
_____________________________
Daniel A. Harris, Arbitrator