HomeMy WebLinkAbout2005-3011.Cook.07-03-05 Decision
Crown Employees
Grievance Settlement
Board
Commission de
reglement des griefs
des employes de la
Couronne
Nj
~
Ontario
Suite 600
180 Dundas Sl. West
Toronto, Ontario M5G 1Z8
Tel. (416) 326-1388
Fax (416) 326-1396
Bureau 600
180, rue Dundas Ouest
Toronto (Ontario) M5G 1Z8
Tel. : (416) 326-1388
Telec. : (416) 326-1396
GSB# 2005-3011
UNION# 2005-0229-0030
IN THE MATTER OF AN ARBITRATION
Under
THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT
Before
THE GRIEVANCE SETTLEMENT BOARD
BETWEEN
Ontario Public Service Employees Union
(Cook)
Union
- and -
The Crown in Right of Ontario
(Ministry of Community Safety and Correctional Services)
Employer
BEFORE
Barry Stephens
Vice-Chair
FOR THE UNION
Stephen Giles and Scott Andrews
Grievance Officers
Ontario Public Service Employees Union
FOR THE EMPLOYER
Pauline Jones and Faith Crocker
Staff Relations Officers
Ministry of Community Safety and
Correctional Services
HEARING
February 19,20 & 21, 2007.
DEADLINE FOR WRITTEN
SUBMISSIONS
March 2, 2007.
2
Decision
INTRODUCTION
The Ministry and OPSEU have agreed to a Med-Arb Protocol, signed February 27, 2006.
Although OCI is not one of the institutions covered by the protocol, the parties agreed on
February 19,2007 to be bound by the terms of the protocol for this session. 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
The grievor has been working under an accommodation since 2002. In October 2005, the
employer asked the grievor to have his doctor fill out a report form meant to obtain updated
medical information. The grievor gave the form to his doctor, who, instead of filling out the
form, provided the employer with a letter. The employer wrote the grievor on November 16,
2005 advising that the letter was not sufficient, and stating:
"Failure to return this Health Information Form by December 2, 2005 may result
in the determination that your accommodation is no longer required."
3
The union asserts that the threat that the grievor's accommodation might be terminated due to a
failure on the part of his doctor to fill out the proper form is inappropriate and arbitrary. There is
no evidence that the grievor was at fault in any way, or that he had any control over the doctor's
actions. More importantly, the employer can only make a decision to terminate an employee's
accommodation based on medical reasons, and at the time of the letter there was no medical
evidence that the grievor no longer required an accommodation. On the contrary, the doctor's
letter supported ongoing accommodation, although it was not in set out in the employer's
requested format. The union seeks a declaration and 80 hours in compensating time for the
gnevor. The employer responds that the information captured by the form was required to
substantiate the ongoing accommodation need, and that it is simply a statement of fact that,
absent such information, the grievor's accommodation may be terminated.
DECISION
The union is entitled to a declaration that the grievor's medical accommodation cannot be
terminated except for medical reasons. While the failure to provide such medical information
could lead to termination of the accommodation, there is no evidence in the circumstances of this
request that the grievor was at fault or had any control over his doctor's failure to use the
employer's form. Moreover, the doctor did provide medical information to support the grievor's
accommodation. From that perspective, the threat to terminate was inappropriate.
Dated at Toronto, this 5th day of March, 2007.
Barry