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Home My WebLink About2008-3858.White.11-04-26 Decision Commission de Crown Employees Grievance UqJOHPHQWGHVJULHIV Settlement Board GHVHPSOR\pVGHOD Couronne Suite 600 Bureau 600 180 Dundas St. West 180, rue Dundas Ouest Toronto, Ontario M5G 1Z8 Toronto (Ontario) M5G 1Z8 Tel. (416) 326-1388 7pO Fax (416) 326-1396 7pOpF GSB#2008-3858, 2008-3859 UNION#2009-0521-0013, 2009-0521-0014 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN Ontario Public Service Employees Union (White) Union - and - The Crown in Right of Ontario (Ministry of Community Safety and Correctional Services) Employer BEFOREVice-Chair Barry Stephens FOR THE UNION Tim Mulhall Ontario Public Service Employees Union Grievance Officer FOR THE EMPLOYER Sia Romanidis Ministry of Government Services Employee Relations Division Employee Relations Advisor CONFERENCE CALLApril 20, 2011. - 2 - Decision 3? This decision arises from a mediated settOHPHQWWKDWZDVUHDFKHGGXULQJD³PHGDUE´ session on April 1, 2009, and, it is agreed that it is issued in accordance with Article 22.16 of the collective agreement, and is without prejudice or precedent. 2? The union alleges that the employer has breached the agreement. The agreement contains the following provision: ³7KHHPSOR\HUDJUHHVWRZRUNZLWKWKHJULHYRUDQGSURYLGHKLPDVFKHGXOHRI alternating weekends off to aVVLVWZLWKFKLOGFDUHLVVXHV´ 1? An employer representative sent me an email in April 2010, on which the union was not copied, raising an issue with respect to whetKHUWKHDERYHXQGHUWDNLQJFRQVWLWXWHGDQ³RQJRLQJ REOLJDWLRQ´,UHVSRQGHGDWWKHWLPHWKDWWKHHPployer should raise the matter directly with the union and, if the parties could not agree, they could bring it back to me for a ruling. I heard nothing further until the instant case was scheduled. 0? Some time in November 2010, the employer met with the grievor and notified him that it ZDVWKHHPSOR\HU¶VYLHZWKDWKHKDGQRWDVVLVWHG or participated in the accommodation process by seeking other methods for dealing with his child care needs. He was given until March 1, 2011 to find such alternative methods. As far as I am aware, there were no further meetings with the grievor on this issue until he received an email from the employer, dated March 1, 2011, advising that the employer had attempted toJHWDUXOLQJRQWKH³WLPHIUDPH´ZLWKRXW success, and also advising the grievor that the arrangement whereby he worked alternate weekends was being terminated. - 3 - No Request for a Prior Ruling /? I wish to make it clear it is not the case that the employer made an attempt to secure a UXOLQJZLWKUHVSHFWWRDQ\³WLPHIUDPH´WKDWPLJKWDULVHIURPWKH$SULODJUHHPHQW7KH email exchange in April 2010 described above was not copied to the union, and, as such, it could not be treated as a motion or formal request for a ruling with respect to the case. It was a request for comment on the extent to whLFKWKHDJUHHPHQWFUHDWHGDQ³RQJRLQJ REOLJDWLRQ´,UHVSRQGHGE\HPDLOto the employer with clear and proper direction, i.e. that it would not be proper for me to comment, that the employer should contact the union first and, if the matter could not be resolved directly, the parties could bring it back to me for a ruling. Rather than doing that, the employer appears to have taken unilateral action to terminate the memorandum of settlement. Employer Submissions .? The employer argues that it would be unreasonable for the grievor to be accommodated ³SHUPDQHQWO\´DQGWKDWDFFRPPRGDWLRQLVDFRRSHUDWLYHSURFHVVUHTXLULQJUHJXODUUHYLHZ7KH employer submits that family accommodation, in particular, must be viewed as a temporary measure, and that there is an onus on the employee to takes steps to put alternative child care supports in place. The employer asserts that two years was sufficient, and the employee has simply failed to take any steps to alleviate or eliminate the need for accommodation. The employer also relies on the fact that Mimico is an institution that has heavy workload demand on weekends. I was also advised that the employer had no direct evidence to provide regarding any change of circumstances related to the accommodation. - 4 - Union Submissions -? The union responds that the employer is attempting to re-litigate the grievance. The settlement is clear. The employer is requirHGWRSURYLGHWKHJULHYRU³ZLWKDVFKHGXOHRI DOWHUQDWLQJZHHNHQGVRII´7KHHPSOR\HUKDVQRt offered any evidence of any major change in WKHJULHYRU¶VFLUFXPVWDQFHV7KHJULHYRU¶VFKild is now seven years old, and the childcare needs are ongoing. The union argues that the employer is raising arguments that should have been part of the original discussions, and that could have been reflected in the language of the agreement. The fact that the employer did not raise or insist on a time limit for the accommodation does not change the fact that the parties reached a settlement of the grievance, and that settlement is enforceable. The union seeks a ruling that the agreement should be reinstated and that the grievor be compensated for any unpaid leaves of absence he has taken to cover his child care needs since the cancellation of the agreement. Decision ,? The agreement between the parties is clear to the extent that the employer agreed to provide the grievor with alternating weekends off. There was no explicit time limit associated with that undertaking. In exchange, the grievor agreed to withdraw his grievance and agreed to release the employer from any other legal action associated with his claim for accommodation, including under the Human Rights Code. +? In essence, the employer seeks a ruling that the agreement contained an implicit time limit. This time limit arises not from the languaJHRIWKHDJUHHPHQWEXWIURPWKHJULHYRU¶V obligation in a family accommodation situation, which the employer describes as the obligation to treat the accommodation as temporary and to take steps to render the accommodation - 5 - unnecessary or less necessary, and to do so within a reasonable time frame. In this instance, the employer asserts that two years is a reasonable time frame. None of these principles are reflected in the agreement. All that can be stDWHGLVWKDWWKHHPSOR\HU¶VSDUWRIWKHZULWWHQ DJUHHPHQWLVWLHGWRWKHH[LVWHQFHRIWKHJULHYRU¶V³FKLOGFDUHLVVXHV´,KDYHQRHYLGHQFHWKDW those childcare issues have changed. 34? The employer has a right to make the argument that the accommodation set out in this ³PHGDUE´DJUHHPHQWLVVXEMHFWWRSHULRGLFUHview and that, where there is a change in circumstances, or the availability of appropriate options, a change in the accommodation may be appropriate. Given that there is an agreement between the parties arising from the settlement of the grievance, however, it is my view that the proper way to address such an issue is for the employer to seek a prior ruling from the vice-chair who is seized with the matter, not to unilaterally abrogate the agreement. 33? Moreover, as of this point in time, there is no evidence before me either of a change in circumstance or of reasonable alternative meWKRGVRIDFFRPPRGDWLQJWKHJULHYRU¶VFKLOGFDUH issues. Indeed, apart from the little that has been set out in this award, I have no evidence with UHVSHFWWRWKHJULHYRU¶VFLUFXPVWDQFHV$VVWDWed above, there is a legal issue with respect to the ongoing nature of the April 2009 agreement. (YHQZHUH,WRDFFHSWWKHHPSOR\HU¶VSRVLWLRQ on that issue, I could not find that the grieYRU¶VDFFRPPRGDWLRQVKRXOGEHWHUPLQDWHGEDVHG solely on the passage of time. 32? I order that the employer is to reinstate the terms of the agreement providing the grievor with alternating weekends off, in accordance with the agreement of April 1, 2009. The grievor - 6 - is also entitled to compensation if it can be demonstrated that he was required to take leave without pay to cover childcare responsibilities as a result of the emSOR\HU¶VFDQFHOODWLRQRIWKH accommodation. I remain seized to deal with any issues arising. th Dated at Toronto this 26 day of April 2011. Barry Stephens, Vice-Chair