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HomeMy WebLinkAbout2011-1189.Gregoire.15-08-25 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#2011-1189 UNION#2011-0440-0022 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN Ontario Public Service Employees Union (Gregoire) Union - and - The Crown in Right of Ontario (Ministry of Community Safety and Correctional Services) Employer BEFORE Felicity D. Briggs Vice-Chair FOR THE UNION Nick Mustari Ontario Public Service Employees Union Grievance Officer FOR THE EMPLOYER Treasury Board Secretariat Centre for Employee Relations Employee Relations Advisor SUBMISSIONS June 12, July 2 & July 16, 2015 - 2 - Decision [1] Recently the parties held a one-day Med/Arb session at the St. Lawrence Valley Correctional and Treatment Centre. During that session the parties agreed that written submissions would be forwarded to this Board regarding two individual grievances. It was further agreed that the decision for each of these grievances would be in accordance with the Med/Arb protocol – that is to say that the decisions will be without precedent or prejudice. [2] Both parties provided fulsome written submissions regarding the facts. Supporting documentation such as emails and policies were also provided. [3] Mr. Christopher Gregoire is a Correctional Officer who filed a grievance that alleged, “I was denied the opportunity to work overtime under the Provincial Overtime Protocol. I was denied the support for a productive contribution to the workplace under the Work and Employment Program and my identified modified duties/job requirements were denied me.” By way of remedy he wanted full compensation for all overtime shifts to which he was entitled. [4] In 2011 the grievor had a work place related injury. He returned to work with reduced hours. To be clear, he continued on his compressed workweek schedule but worked only eight hours when scheduled to work twelve. WSIB paid the difference of four hours per workday between what was scheduled and what the grievor actually worked. [5] Mr. Gregoire attempted to return to full duties including working twelve hours days in April. On May 2, 2011 the Employer received medical information that the return to full hours was detrimental and that Mr. Gregoire should return to working only eight hours until the end of July of 2011. [6] There was an agreed upon accommodation plan which, amongst other things, said that the grievor was to “work a maximum of eight hours (including any overtime shifts)”. The grievor requested overtime work by making it known in HPRO that he was available for such work as of May 12, 2011. [7] Shortly thereafter the grievor received a letter from WSIB informing him that the need to return to eight hours shifts “meant that there would be a wage loss, so you were paid partial loss of earnings benefits based on your hours worked.” The letter went on to find that, “Based on the medical evidence and the fact that you were instructed to remain on reduced hours in order to support your full recovery, I explained that by accepting overtime hours, you would be working outside your - 3 - precautions and potentially putting your recovery at risk. Therefore, I communicated to both the employer and yourself that unless you were medically cleared to return to your regular schedule, overtime would not be permitted.” [8] The grievor was informed of his ability to appeal this decision but apparently failed to do so. [9] The Employer complied with this direction from WSIB and possibly with one exception did not assign the grievor overtime until he returned to his twelve-hour schedule. [10] The Employer was of the view that it complied with direction from WSIB that the grievor was not allowed to work overtime because his reduced hours that were subsidized by WSIB were being provided to allow for rehabilitation of his injury and even stretches of days off should be utilized for rest and rehabilitation. [11] Further, argued the Employer, there has been no breach of the Collective Agreement or the Overtime Protocol because HPRO is for those employees who are eligible for working overtime and the grievor was not. Finally, it was contended that the mention of overtime in the grievor’s accommodation plan that was agreed upon before the direction from WSIB was received, was not a guarantee of eligibility to work overtime and therefore is not determinative in this matter. [12] After considering the facts and submissions of the parties – including the grievor’s statement that the Employer’s refusal to allow him to work overtime was a method of “bullying” him back to working twelve hour shifts and his view that only his only physician had the ability to “place restrictions on his working conditions” – and I must deny the grievance. [13] There has been no breach of the Collective Agreement or overtime protocol and there has been no failure to accommodate. [14] Grievance denied. Dated at Toronto, Ontario this 25th day of August 2015. Felicity D. Briggs, Vice-Chair