HomeMy WebLinkAbout2014-0731.Skeene.15-04-09 DecisionCrown Employees
Grievance Settlement
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Commission de
règlement des griefs
des employés de la
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Bureau 600
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Toronto (Ontario) M5G 1Z8
Tél. : (416) 326-1388
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GSB#2014-0731
UNION#2014-0526-0036
IN THE MATTER OF AN ARBITRATION
Under
THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT
Before
THE GRIEVANCE SETTLEMENT BOARD
BETWEEN
Ontario Public Service Employees Union
(Skeene) Union
- and -
The Crown in Right of Ontario
(Ministry of Attorney General) Employer
BEFORE Michael V. Watters Vice-Chair
FOR THE UNION Seung Chi
Ontario Public Service Employees Union
Grievance Officer
FOR THE EMPLOYER Benjamin Parry
Treasury Board Secretariat
Legal Services Branch
Counsel
HEARING March 31, 2015
DECISION
[1] This proceeding was conducted pursuant to the expedited procedure set out in
article 22.16 of the collective agreement. In the absence of agreement under article
22.16.7, this Decision shall have no precedential value. I note, for the record, the
parties agreement to extend the time for the issuance of the Decision.
[2] At the outset, the Union’s representative asked that the hearing be adjourned
pending the resolution of a Policy Grievance scheduled to be heard by the Grievance
Settlement Board in May, 2015. Counsel for the Employer opposed the request for an
adjournment. After hearing submissions, this Vice-Chair denied the requested
adjournment as I considered it preferable to complete the hearing in an expeditious
fashion, as contemplated by article 22.16.
[3] No viva voce evidence was presented in this case. Instead, the parties provided
documentation relevant to their respective positions. Additionally, this Vice-Chair met
separately with each of the parties and received submissions with respect to how the
grievance should be resolved. The parties agreed that the Decision in this matter
should be issued without reasons.
[4] The grievor is an Inmate Appeal Case Manager working out of the Court of
Appeal For Ontario. As an employee of the Ministry of the Attorney General, she has
been subject to the Attendance Support and Management Program (ASMP) since 2013.
The Program was earlier introduced in the Correctional Bargaining Unit in 2009.
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[5] The ASMP has four (4) levels that an employee may move through. Each level is
triggered if an employee exceeds four (4) occurrences within a twelve (12) month period
or if any occurrence or combination of occurrences exceed seven (7) days of absence in a
twelve (12) month period. Under the ASMP, an occurrence is defined as any sick time
requested off work. A single occurrence can be for either a small or large period of time.
By way of example, an occurrence can be two (2) hours taken at the end of a shift due to
a headache or three (3) weeks missed due to a broken leg.
[6] In this instance, the grievor’s history of sick time shows that she missed 3.25
hours on December 5, 2013, 3.5 hours on December 13, 2013 and 2 hours on February
18, 2014. These were treated as separate occurrences for purposes of the ASMP. The
effect of this was to accelerate the grievor’s movement into Levels One (1) and Two (2)
of the Program.
[7] It was the Union’s submission that the hours missed as sick time on December 5
and December 13, 2013 and on February 18, 2014 should not have been treated as
separate and distinct occurrences. From the Union’s perspective, such treatment
resulted in the grievor proceeding through the Levels at too rapid a pace. Its
representative argued that such result was unreasonable and unfair. He further
submitted that the Employer adopted a blanket approach to the days in question and
did not exercise any discretion when applying the ASMP to the grievor’s circumstances.
[8] In response, counsel for the Employer submitted that, in effect, the instant
grievance is a challenge to the thresholds established under the ASMP. On his
analysis, the validity of the thresholds has been previously recognized by the decision in
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Benko et al., GSB No. 2009-2821 (Keller) and by a Memorandum of Settlement of Union
Policy Grievance No. 2009-099-074 (GSB No. 2009-1643). Lastly, counsel argued that
the three (3) days in issue were properly considered to be separate occurrences under
the ASMP.
[9] On the Union’s reading, the decision in Benko is distinguishable as it did not
address the definition of occurrence and was decided in the Correctional context.
[10] This Vice-Chair has reviewed all of the documents filed and has considered the
submissions of the parties. After so doing, I have not been persuaded that the
Employer breached the collective agreement in its application of the ASMP to the
circumstances of the grievor’s case.
[11] The grievance is, accordingly, dismissed.
Dated at Toronto, Ontario this 9th day of April 2015.
Michael V. Watters, Vice-Chair