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HomeMy WebLinkAbout2022-8630.McCormack.24-06-17 Decision Crown Employees Grievance Settlement Board Suite 600 180 Dundas St. West Toronto, Ontario M5G 1Z8 Tel. (416) 326-1388 Commission de règlement des griefs des employés de la Couronne Bureau 600 180, rue Dundas Ouest Toronto (Ontario) M5G 1Z8 Tél. : (416) 326-1388 GSB# 2022-8630; 2023-02341 UNION# 2022-0526-0027; 2023-0526-0019 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN Ontario Public Service Employees Union (McCormack) Union - and - The Crown in Right of Ontario (Ministry of the Attorney General) Employer BEFORE Nimal Dissanayake Arbitrator FOR THE UNION Elizabeth Adeseha Ontario Public Service Employees Union Grievance Officer FOR THE EMPLOYER Debra Kyle Treasury Board Secretariat Legal Services Branch Counsel HEARING June 10, 2024 -2 - Decision [1] Ms. Joan McCormack (grievor) is employed with the employer as a Court Client Representative. The Board is seized with two grievances filed by her on May 3, 2022 and September 25, 2023, respectively. The violations of several provisions of the collective agreement resulting from the employer’s refusal to allow the grievor to work remotely based on medical restrictions imposed by her medical doctor. [2] The two grievances first came before the Board on July 25, 2023. Mediation efforts that day did not result in settlement. No further hearing dates were scheduled at the time. However, a time line was agreed upon by the parties for the union to provide particulars by December 6, 2023, and for the employer to respond by January 26, 2024. [3] When the Board convened next on June 10, 2024 at the joint request of the parties, the parties made representations on a preliminary dispute between them. A joint book of documents they had agreed upon by them was filed with the Board. [4] Email exchanges between the parties in that book establish that on November 6, 2023 the union requested the employer’s agreement to adjourn the two grievances sine die. The union informed the employer that due to health reasons the grievor was not able to participate in any hearing or to provide particulars by the agreed date. The union undertook to assess the grievor’s health situation and get back in February 2024 to set new timeline for particulars. [5] The employer did not agree to adjourn the grievances sine die. Instead, it proposed that the parties extend the time limits for the union to provide its particulars, and for the employer to provide notice of any preliminary issues it may want to raise. After further exchanges by email, the employer agreed to extend the timeline, but imposed certain conditions on that agreement. [6] The union did not agree to those conditions. Instead it provided additional information about the grievor’s health issues, and again requested that the two grievances be adjourned sine die. The employer refused. Faced with an impasse, the parties requested a hearing before the Board. [7] At the hearing, the Board was urged by the union to order that the grievances be adjourned sine die. The employer did not question the information about the grievor’s health issues the union had presented. It in fact expressed its sympathy to the grievor, but took the position that it was not prepared to agree to hold the grievances on hold indefinitely. It was submitted that the employer’s ability to -3 - defend itself would be prejudiced significantly if the grievances go forward to arbitration years later. [8] The grievor’s health issues are not disputed, at least at this time. Therefore, her claim to be accommodated must be heard. The right to be accommodated is an important right under the collective agreement and the Ontario Human Rights Code. However, there is also merit in the employer’s position that undue delay would prejudice its ability to defend. [9] Adjournment sine die, in the Board’s view, is only to be ordered when no other reasonable option is available. The circumstances here have not reached that point. Therefore, in balancing the competing important interests, and having regard to the respective parties’ representations, the Board orders as follows: 1. On or before September 25, 2025 the union shall provide full particulars and disclosure for the two grievances. 2. The union will advise the employer no later than August 22, 2025 if it is unable to meet the deadline. In that event, the union shall provide certification from the grievor’s medical practitioner(s) to substantiate the grievor’s inability to meet the deadline. 3. The parties will convene before the Board to deal with any issues arising from the union’s inability to comply with the timeline, including but not limited, to the following: a. Any motion by the union to further extend the timelines for providing full particulars and disclosure. b. Any motion(s) brought by employer, including a motion that the grievances be dismissed. This decision does not preclude the employer from making any preliminary motions it would have been entitled to make otherwise. [10] The Board remains seized with the two grievances. Dated at Toronto, Ontario this 17th day of June 2024. “Nimal Dissanayake” Nimal Dissanayake, Arbitrator