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Home My WebLink About2018-0656.Andrews.18-11-02 DecisionCrown Employees Grievance Settlement Board Suite 600 180 Dundas St. West 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# 2018-0656 UNION# 2018-0368-0075 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN Ontario Public Service Employees Union (Andrews) Union - and - The Crown in Right of Ontario (Ministry of Community Safety and Correctional Services) Employer BEFORE Brian Sheehan Arbitrator FOR THE UNION Gregg Gray Ontario Public Service Employees Union Grievance Officer FOR THE EMPLOYER David Marincola Treasury Board Secretariat Employee Relations Advisor HEARING October 16, 2018 -2- DECISION [1] The Employer and the Union at the Central East Correctional Centre (CECC) agreed to participate in the Expedited Mediation-Arbitration process in accordance with the negotiated Protocol. It is not necessary to reproduce the entire Protocol. Suffice to say that the parties have agreed to a True Mediation-Arbitration process, wherein each party provides the Arbitrator with their submissions setting out the facts and the authorities they will respectively rely upon. This decision is issued in accordance with the Protocol and with Article 22.16 of the collective agreement and is without prejudice or precedent. [2] The grievor is a Correctional Officer working out of the CECC. [3] The grievor had been off work since December 2017, due to a workplace incident for which she received benefits under the Workplace Safety and Insurance Act. [4] On March 21, 2018, the grievor’s treating physician wrote to the Employer indicating that the grievor could return to work on Monday April 2, 2018 (Easter Monday). [5] On March 27, 2018, a Return to Work meeting was held involving the grievor. At that meeting, a Health & Productivity Program Accommodation Plan (Accommodation Plan) was completed, which was executed by the grievor. The only restriction listed on the Accommodation Plan was no inmate supervision. The Accommodation Plan further stipulated that the grievor would commence working in the “X-ray” area. [6] The Accommodation Plan indicated that the grievor’s first day back at work would be Tuesday April 3, 2018. At the Return to Work meeting, the grievor inquired as to why -3- she could not return to work on Monday April 2, 2018. She was advised that this would not be possible. [7] Easter Monday is a paid holiday under the collective agreement. Pursuant to Article COR13.1 of the collective agreement, an employee working on a paid holiday is entitled to be paid two times his or her basic hourly rate for all hours worked; and in accordance with Article COR13.2, is additionally entitled to holiday pay or a day off in lieu. The grievor did receive holiday pay for April 2, 2018. [8] The Daily Roster Sheet for April 3, 2018, lists the grievor’s duties as being assigned to “Orientation”. That Daily Roster Sheet further identifies two other Correctional Officers (COs) working in the X-ray area that day. The logbook for the X- ray area for April 3, 2018 identifies that the grievor, as well as the two aforementioned COs, performed the duties associated with that assignment that day. The grievor disputes whether she actually performed any orientation-type duties or functions on April 3, 2018. In this regard, she suggested that she had worked previously in the X-ray area so there was no need for any retraining with respect to the work performed in that area. [9] The position of the Union was that the grievor should have been entitled to work on April 2, 2018, as she had medical clearance to return to work on that day. It was further noted that the only workplace restriction applicable to the grievor was no inmate supervision, and this restriction could have been accommodated on that particular day by the Employer, as it was the day after on April 3, 2018. It was also submitted that pursuant to an Employer policy, all COs at the CECC are scheduled to work on paid holidays unless the employee advises he/she does not want to work the holiday. It was asserted that by not allowing the grievor an opportunity to work the paid holiday on the -4- basis that she was just returning to work constituted an employee being treated differentially on account of the employee’s disability; and therefore, constituted a violation of the Ontario Human Rights Code. [10] The Employer asserted that the grievor was not scheduled, or necessarily entitled, to be scheduled to work on April 2, 2018; accordingly, there was no reason to consider her to be eligible to work on that day. Moreover, the decision for her not to return to work until April 3, 2018 was undoubtedly reasonable. In this regard, the grievor returned to work only one day after the date the grievor’s treating physician suggested she was able to return to work. More importantly, it was asserted that since the grievor was absent from the workplace for an extended period of time, there would be the need, inexorably, for some reorientation for her on her first day back at work; and the Employer did not deem it appropriate to premium pay for the day, if it would include such orientation-type or job-familiarization duties. [11] At one level, the frustration of the Union and the grievor is entirely understandable. The grievor was ready and able to return to work as of April 2, 2018, yet the Employer did not allow her to work that day. That being said, under the collective agreement, there was no express obligation upon the Employer suggesting that it had to schedule the grievor to work on April 2, 2018. The relevant question then becomes— whether the Employer’s decision to only allow the grievor to return to work as of April 3, 2018 was reasonable? Further to this point, if it would appear, objectively, that an employee with a disability is ready to return to work on a particular day and would otherwise be entitled to work on that day, an employer’s decision to delay his/her return to work must be done in good faith; and based on legitimate and reasonable grounds. -5- [12] It is my view, upon considering all the relevant circumstances, that the Employer’s decision not to allow the grievor to return to work until April 3, 2018 satisfied the test of being reasonable. It was generally not unreasonable for the Employer to anticipate that the first day back at work for an employee returning from an extended absence, such as the grievor in the case at hand, would encompass certain” downtime”, which would be associated with the employee being reoriented back into the workplace or refamiliarizing herself with certain assigned tasks. Accordingly, it would not be necessarily unreasonable for the Employer to be reluctant to pay such an employee the premium pay associated with working on a holiday, if that employee may be spending, at least part of the workday, being reorientated or “getting back up to speed” with respect to certain tasks. While I appreciate the grievor’s view that she did not, in fact, spend any time on her first day back at work on April 3, 2018, being reorientated or reacquainting herself with the tasks in the X-ray area, the relevant documentary evidence is supportive of the Employer’s position. Specifically, the Daily Roster sheet for that day indicates that the grievor’s assignment was “orientation”. Moreover, the logbook for the X-ray area suggests that the grievor was an “over-complement” employee; which would generally support the Employer’s view that the grievor on that day was involved with, at a minimum, some “job shadowing” components. [13] For the above reasons, the grievance is, hereby, dismissed. Dated at Toronto, Ontario this 2nd day of November, 2018. “Brian Sheehan” ______________________ Brian Sheehan, Arbitrator