HomeMy WebLinkAbout2019-2159.Complainant.21-09-23 Decision
Crown 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# 2019-2159
IN THE MATTER OF AN ARBITRATION
Under
THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT
Before
THE GRIEVANCE SETTLEMENT BOARD
BETWEEN
Association of Management, Administrative and
Professional Crown Employees of Ontario
(Complainant) Association
- and -
The Crown in Right of Ontario
Employer
BEFORE Ian Anderson Arbitrator
FOR THE
ASSOCIATION
Nadine Blum
Goldblatt Partners LLP
Counsel
FOR THE EMPLOYER Thomas Ayers
Treasury Board Secretariat
Legal Services Branch
Counsel
HEARING April 13 and September 20, 2021
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Decision
[1] The parties to this Dispute have agreed to refer this matter to me, sitting as a single
mediator-arbitrator, in accordance with s. 50(1) of the Labour Relations Act (which
is incorporated with modification into the Crown Employees Collective Bargaining
Act).
[2] The parties attempted to resolve this Dispute by mediation with my assistance on
April 13 and September 20, 2021. As the parties were unable to resolve all
outstanding issues, they have asked that I determine the Dispute by arbitration and
produce brief reasons. The parties have also agreed that this decision will not have
precedential value. Further, the parties have requested that the decision be
anonymized.
[3] Based on the representations of the parties and the material before me, I make the
following findings of fact.
[4] The Complainant, G.H., was employed by the Employer until the Employer declared
she had abandoned her position on September 28, 2018. She was a long-service
employee, with a continuous service date of May 7, 1990.
[5] G.H. became ill, went off work and began receiving benefits under the Short Term
Sickness Plan in or around September 2017. The last medical she provided to the
Employer substantiating her absence was dated December 28, 2017.
[6] In or around March, 2018, G.H. told her manager that she would be applying for
Long Term Income Protection. G.H. never in fact did so.
[7] In or around April, 2018, G.H. spoke with her manager by phone. During this call
G.H. discussed her health and the manager noted that G.H. sounded unwell.
[8] In or around August 2018, the Employer wrote to G.H. stating that as she had not
provided updated medical, the Employer now considered her to be on an
unapproved absence without pay. The Employer requested that she provide
updated medical to substantiate her ongoing absence. The Employer followed up
by letter and phone. On September 6, 2018, G.H. left a voice message for her
manager requesting additional time to provide the updated medical.
[9] The Employer declared G.H. to have abandoned her position on September 28,
2018, having not received updated medical by that time.
[10] G.H. would have retired on the date she turned 60, August 4, 2019, had the
Employer not declared her to have abandoned her position on September 28, 2018.
[11] Sadly, G.H. passed away on August 4, 2021.
[12] Based on the unique facts of this case, including the nature of the disability, the
medical information the Employer already had and the exchanges that had taken
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place between G.H. and the Employer, I find that the Employer ought not to have
placed G.H. on an unapproved leave of absence as of August, 2018, but rather
should have considered her to be on an approved unpaid leave of absence from
that date forward. Accordingly, I find G.H. could not be considered to have
abandoned her position as of September 28, 2018. I further find that G.H. ought to
have been considered to be on that approved unpaid leave of absence until August
4, 2019, the date on which she intended to retire.
[13] I hereby order the Employer to reinstate G.H. to her position effective September
28, 2018, and to place her on an unpaid leave of absence from that date until
August 4, 2019, at which point she will be deemed to have retired.
[14] I remit the matter back to the parties to attempt to agree on any remaining remedial
issues with respect to this matter, and I remain seized should any issues arise that
the parties are unable to resolve themselves.
Dated at Toronto, Ontario this 23rd day of September, 2021.
“Ian Anderson”
________________________
Ian Anderson, Arbitrator