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HomeMy WebLinkAbout2011-3681.Upson.15-06-04 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#2011-3681, 2011-3684 UNION#2011-0252-0023, 2012-0252-0002 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN Ontario Public Service Employees Union (Upson) Union - and - The Crown in Right of Ontario (Ministry of Community Safety and Correctional Services) Employer BEFORE Daniel Harris Vice-Chair FOR THE UNION Katherine Ferreira Koskie Minsky LLP Counsel FOR THE EMPLOYER Heather Mclvor Treasury Board Secretariat Labour Practice Group Counsel HEARING May 26, 2015 - 2 - DECISION [1] In this matter, the union, (OPSEU), has filed a number of grievances on behalf of David Upson (the grievor). Mr. Upson was the victim of a vicious assault at the hands of fellow Corrections Officer, Douglas Kirkwood, on Friday, November 4, 2011. By a decision of the Board dated August 8, 2013, the grievances of Mr. Upson and Mr. Kirkwood relating to the assault were consolidated. There is a videotape of the assault. Both Mr. Upson and Mr. Kirkwood were employees of the Ministry of Community Safety and Correctional Services. [2] The matters were scheduled for hearing. On the first hearing day, April 10, 2014, the parties decided to attempt a mediated settlement of the outstanding issues. Mr. Kirkwood's grievance was resolved. Mr. Upson's grievances remained outstanding, with some prospect of settlement. The next hearing day, April 23, 2014, was also spent on mediation efforts. Those efforts were unsuccessful and the following hearing day, April 24, 2014 was adjourned. May 6, 2014 was also adjourned, as was May 27, 2014. In December 2014, the matter was scheduled for hearing on May 26, 2015. [3] On May 25, 2015 the parties advised the Board that they wished to cancel the hearing at the Board in favor of a telephone conference hearing on May 26, 2015. This decision deals with the disposition of the teleconference hearing. The Submissions of the Parties [4] The employer provided an overview of the background and purpose of the teleconference hearing. Seemingly, the grievor may be medically unfit to proceed with the hearing due, essentially, to suffering from Post Traumatic Stress Disorder. The employer noted that the same situation prevailed in the spring of 2014 with respect to the adjournments described above. Following those adjournments, the employer requested medical documentation that would establish whether the grievor was fit to participate in the hearing. That request was to be honored by May - 3 - 1, 2014. It was because the medical reports were not forthcoming that the two May dates in 2014 were canceled. [5] Seemingly, the grievor's attending psychiatrist was out of the country for an extended period of time in 2014. In November 2014, the parties agreed to schedule May 26, 2015 for hearing. They also agreed to touch base with each other one-month prior in order to assess the situation as to whether or not the grievor was medically fit to participate in the hearing. As of yet there is still no medical documentation with respect to whether or not the grievor is fit to participate in the hearing. This teleconference hearing was called to deal with the above and with an outstanding request by the employer that the union provide particulars of the grievances. [6] It was the employer's submission that we should set dates for the hearing whether or not medical reports are available. It said that it was the union’s onus to justify excusing him from participating in the hearing. The employer noted that the grievor is not currently under a specialist’s care and has returned to work on the recommendation of his family physician. It noted that the grievor has recently received a new referral to a psychiatrist, the scheduling of which is set for late August 2015. [7] The union submitted that it has made significant efforts to obtain the medical reports requested and that it would be inappropriate to proceed with the hearing without those medical assessments. It noted that the grievor went off work on short-term sick leave due to the stress of having attended at the Board in April 2014. It said that the medical assessments would be required to ensure that the grievor could successfully attend at the Board. It said that the grievor's return to work was under comprehensive restrictions that isolate him from any and all inmate contact. It submitted that the continuation of this litigation would expose him to the video and pictures of the inmates and of the interior of the institution, from which, under his present restrictions, he is protected. The union said that it has asked the grievor for the medical reports being sought and that the assessment that is required is best performed by a specialist psychiatrist, not the family physician. The union confirmed that the assessment by the new psychiatrist is - 4 - scheduled for August 25, 2015. The union was content to set further hearing dates on the understanding that the grievor could not attend unless medically cleared. [8] With respect to the employer's request for particulars, the union said that a draft of the particulars has been completed which needs to be reviewed with the grievor. [9] In reply, the employer submitted that continuation dates ought not to be based on the assessment date with the new psychiatrist. The family physician had authorized the return to work and would be in a position to provide an assessment of his fitness to proceed with the hearing. Decision [10] Having heard the submissions of the parties, including a discussion of the appropriate timelines for the union to meet, I order as follows: 1) The union is to provide particulars to the employer on or before June 16, 2015; 2) the union is to provide a medical report to the employer relating to the grievor's fitness to proceed with the hearing on or before September 30, 2015; 3) the employer will advise the union, in a timely fashion, whether it will bring any preliminary motions as a result of the provision of particulars; [11] Four days are to be scheduled by the Registrar of the Board for the hearing of these matters on the merits. Dated at Toronto, Ontario this 4th day of June 2015. Daniel Harris, Vice-Chair