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Home My WebLink About1996-1925.Union.99-11-09 Decision -- ONTARIO EMPLOYES DE LA COURONNE CROWN EMPLOYEES DE L 'ONTARIO '- GRIEVANCE COMMISSION DE -- SETTLEMENT REGLEMENT BOARD DES GRIEFS 180 DUNDAS STREET WEST SUITE 600, TORONTO ON M5G 128 TELEPHONElTELEPHONE, (416) 326-1388 180, RUE DUNDAS OUEST BUREAU 600, TORONTO (ON) M5G 128 FACSIMILElTELECOPIE. (416) 326-1396 GSB # 1925/96, 341/98 OPSEU # 96U I 0 1, 98U046 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN OntarIO PublIc Service Employees Umon (Umon GrIevance) Grievor - and - The Crown In Right of OntarIo (Management Board SecretarIat/ Ministry of the SolICitor General and CorrectIOnal Services) Employer BEFORE Randl Hammer Abramsky V Ice ChaIr FOR THE Tim Hadwen GRIEVOR Counsel OntarIo PublIc Service Employees Union FOR THE Len Marvy EMPLOYER Counsel, Legal Services Branch Management Board Secretariat HEARING November 2, 1999 - --- -"_..~- ._._-~~_._--------- ORDER - On May 31, 1999, I Issued an A ward m the above-captIOned matters whIch determmed, among other thmgs, as follows 5 The AEP [Attendance Enhancement Program] and the ASP [Attendance Support Program] Improperly treat a smgle 12-hour ShIft as an absence of 1.5 days. The Employer IS dIrected to develop a calculatIOn system whIch mimmIzes the dIscrepancIes between 12-hour ShIft and 8- hour ShIft employees m arnvmg at the mmIstry thresholds. 7 I shall remam seIzed. Although the parties were able to agree upon most of the ImplementatIOn Issues that arose as a result of the Award (includmg that as of June 1, 1999, all absences for extended day ShIft employees are to be treated as the absence of a normal workmg day), they were unable to agree as to the retroactIve applIcatIOn of the A ward as It applIes to the above- quoted dIrectIOn. The Issue was then brought back before me for resolutIOn. The partIes requested that an Order wIth only brIef reasons be provIded. The Employer takes the posItIon that there should be no retroactIve applIcatIOn of the A ward. In the alternatIve, It suggests two approaches whIch provIde some, but not full, retroactlVety The Umon asserts that the Award should be gIven full retroactIve applIcatIOn for all employees who worked extended 12-hour ShIfts who are m the attendance program or m the 24-month momtormg phase - 2 -- -~---_._~_._~--_._--- For the foregomg reasons, I conclude that the Award should be gIven full .- retroactIvIty as requested by the Umon. 1 On December 2, 1996, the Employer and the Umon agreed to eIther adjourn all of the mdIvIdual gnevances concernmg the AEP, pendmg the outcome of the polIcy gnevance, or to consolIdate them WIth the Umon gnevance so that all of the Issues could be dealt WIth at one tIme. Further, m response to the Umon s request for a Waiver of tIme lImIts on future gnevances, the Employer stated that It saw "no need to agree to a Waiver of tIme lImIts when the Umon polIcy gnevance would have been filed first and therefore any resolution or decision stemming from that grievance would apply to all members of the Union and would be applicable from the date of the filing of the grievance ( emphasIs added) The Employer IS clearly bound by thIS agreement and IS estopped from assertmg a contrary pOSItIOn at thIS tIme The Employer agreed, at the outset, that the resolutIOn of the polIcy gnevance would apply to all members of the bargammg umt and would be applIcable from the date of the filmg of the gnevance 2 Although there was no sImIlar undertakmg m regard to the ASP, It IS clear that the same approach, i. e, proceedmg solely through a polIcy gnevance, was adopted by the partIes. The two gnevances were consolIdated and there IS no eVIdence that the Employer ever conveyed to the Umon that a dIfferent approach m relatIOn to the applIcabIlIty of the outcome was contemplated. Accordmgly, It would be patently unfaIr, at thIS pomt, to lImIt the scope of the A ward as the Employer now seeks. 3 ---~._..- _.,._---_..~ 3 In my View retroactive applicatIOn of the A ward is reqmred to provIde a full remedy -- The Award detenmned that the Employer improperly treated the absences of 12-hour shift employees as 1.5 days of absence. ThiS was a vIOlatiOn of management's obhgatiOn to "make reasonable rules and regulatiOns" There are currently employees who are m the ASP, or subject to its 24-month momtoring phase, who were mcluded m the program based on the Employer's Improper calculatiOn of theIr absences. That must be corrected for a full remedy to occur 4 The employees' absence records and shIft records are available so that a recalculatIOn may be made Although I recogmze that recalculatmg the affected employees' absences IS a burden on the Employer, the recalculatiOns may be done over a penod of time, begmmng WIth the employees m Levels 2 and 3 Further, by adoptmg the time-based method of calculatmg absences m both the AEP and ASP, whiCh the Gnevance Settlement Board had already found to be Improper m 1993 the Employer cannot complam about the burden of recalculating the affected employees' absences. 5 Although the A ward dId not deterrmne what calculatiOn system the Employer had to use, the Employer was directed to develop a calculation system whIch mImmIzed the dIscrepancIes between 12-hour shIft and 8-hour shift employees, and I remamed seIzed. F or the penod June 1, 1999 forward, the Employer has agreed that "an employee absence for a shift(s) greater than a normal full-time workmg day for the relevant classIficatiOn, shall be counted as If It were an absence of a normal workmg day, for the purpose of the - 4 --~_._---_.- ASP" In the absence of an alternatIve system, I now dIrect that the same calculatIOn system be applIed to the penod of tIme before June 1 1999 Therefore, I order as follows 1 The A ward IS to be gIven full retroactIve applIcatIOn. 2. The Employer IS dIrected to recalculate the absences of extended ShIft employees m the ASP, or subject to Its 24-month momtormg phase, based on the "day IS a day" formula. It shall start wIth employees m Levels 2 and 3, and It IS to complete that task wlthm SIxty (60) days. For the employees m Levell, the recalculatIOn may be done at theIr regular reVIew 3 I shall remam seized. Issued thIS 9th day of November, 1999 ~ i-I r4brnrtElC "..~-- I RandI Hammer Abramsky, VIce-Chair 5 - ------~--~--_.._- 1925/96,341/98 -" IN THE MATTER OF AN ARBITRATION under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT before THE GRIEVANCE SETTLEMENT BOARD BETWEEN ONTARIO PUBLIC SERVICE EMPLOYEES UNION (Union Grievance) Union - and - THE CROWN IN RIGHT OF ONTARIO (Ministry of the Solicitor General and Correctional Servicesl Management Board Secretariat) Employer Minutes of Settlement The parties hereby agree that the Grievance Settlement Board shall issue the attached as an Order of the Board Date the 2nd daY j>f November, 1999 II I ''Jt I {J ~ \ I / ~VIAL k~ For the ~ jon- ! ' For the Employer ~- ,\ / tE- _ , J II t. 1./ ~ / . / 1, --r.<..- J" I For the Onion "---- -" 1925/96,341/98 IN THE MATTER OF AN ARBITRATION '- under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT before THE GRIEVANCE SETTLEMENT BOARD BETWEEN ONTARIO PUBLIC SERVICE EMPLOYEES UNION (Union Grievance) Union - and - THE CROWN IN RIGHT OF ONTARIO (Ministry of the Solicitor General and Correctional Servicesl Management Board Secretariat) Employer ORDER The Grievance Settlement Board hereby orders 1 The attached amendments to the Attendance Support Program (ASP) and accompanying Question and Answer documents constitute compliance with the Abramsky award, except that the issue of shifts greater than the normal working day will be resolved as set out below - -- "-" _._-------~--,~--_.._..._------------------_._._._-- -2- - 2 As of June 1, 1999, an employee absence for a shift(s) greater than a normal full-time working day for the relevant classification, shall be counted as if it were an absence of a normal working day, for the purpose of the ASP Any partial absences shall be similarly pro-rated 3 It is understood that the calculation of absences as set out in paragraph #2 may result in Ministry absenteeism thresholds being lowered accordingly, and that there is no dispute remaining between the parties concerning this cause or effect of any decrease 4 The issue of the retroactive application of the award to minimize discrepancies in the treatment of shifts greater than a regular full-time work day (7 25 hours and 8 hours) will be determined by Vice-Chair Abramsky as expeditiously as possible 5 Vice-Chair Abramsky shall remain seized of this Order and all related individual grievances (including all grievances concerning Fresh Start, being left in a level indefinitely and individual application of the Program to the griever with disabilities) If Vice-Chair Abramsky is not reasonably available to deal with all these cases, the parties shall agree on another single Vice-Chair to do so, and if they cannot agree, such Vice-Chair shall be appointed by the Chair of the Grievance Settlement Board 6 The parties recognize that current placements in the ASP may need to be adjusted due to application of the Abramsky award to particular facts Such circumstances will be dealt with through individual workplace discussion and, if necessary, grievance 7 As a result of this Order, with the exception of the retroactive application as outlined in paragraph #4 of this Order, the remedial terms of Vice-Chair Abramsky's award shall be deemed to be complied with provided the terms of this Order are complied with - ! . ))) 0 ...-1 po' 9 > s:-~> bJ 9:So- . o ~ rfl . 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(1)~ Attendance SU0lort Program 'I - EXTRACT OF AGREED TO CHANGES - EMPLOYEE FACT SHEET THE PROGRAM An employee's inclusion m the attendance support program is not relevant when declSlons are made about particular Job competitIOns, lateral transfers, or developmental opportumtIes Level three is flexible m length, permittmg a range of three to SIX months, with a possibilIty of extensIOn(s) Extensions have no set "maXInlUm" on their length When decIdmg about extensions, the senior manager takes mto account the employee's need for accommodation and medical status (e g , new complicatIons have anse, hIS or her medIcal condItIOn has changed SIgnificantly or is dIfficult to dIagnose ) At any level goals can reset based on new health informatIon. AssIstance IS indIvidualIzed, with accommodation as needed, wherever possible For example, some dIsabled employees may reqUIre attendance goals above mmIstry thresholds If you exceed your ministry's threshold WIthin twenty-four months of eXItmg a level, you may return to the level you left. program After you exit a level, your manager can set a personal absenteeism threshold as an accommodatIon, where possible ThIS means that you would not re-enter a level unless your absences exceeded your personal absenteeIsm threshold Managing Injury Illness and Employment Accommodation in the OPS October 1999 Management Board Secretariat QUESTIONS AND ANSWERS FOR MANAGERS I - EXTRACT OF AGREED TO CHANGES - Policy Grievance Decision on Managing Attendance in the OPS (GSB #1925/96, 0341/98) What should I know about the decision? The Attendance Support Program (ASP) is part of the Management Board Secretariat Managing IllJury, Illness and Employment AccommodatIOn Program (IlEA Program) Based on the arguments and evidence the Board heard, It concluded. 1 The ASP, m part and as a whole, IS not dISCIplInary m nature and does not vIolate the "Just cause" requirement of the collectIve agreement The Employer must clarify, however, that mclusion in the ASP may not be conSIdered m Job cOmpetitIOns or other developmental opportunities 2 The ASP does not violate the OntarIo Human Rights Code, and consequently does not violate ArtIcle 3 1 of the collective agreement. But a manager's authorIty to set personal attendance goals above the mImstry absenteeIsm threshold needs to be made more explIcit as well as a manager's authorIty to reset attendance goals and theIr ability to establIsh a personal absenteeIsm threshold above the momtorIng phase Further, It must be clarified that more than one extension at level three may be made and that there IS no set maximum of 24 months The Employer is directed to do so 3 The ASP does not vIolate ArtIcle 9 or ArtIcle 44 of the collectIve agreement. 4 The ASP does not improperly change the law in relatIOn to mnocent absenteeism 5 The AEP and the ASP Improperly treat a smgle 12-hour ShIft as an absence of 1 5 days The Employer is directed to develop a calculation system whIch mimmIzes the discrepancIes between 12-hour ShIft and 8-hour shift employees in arrIvmg at the mmistry thresholds 6 The ASP IS not otherWIse an unreasonable polIcy and does not violate ArtIcle 2 1 of the collectIve agreement In other words, the ArbItrator dIrected that the plan be clarIfied m certam areas as set out below . A manager can set, where necessary, a personal absenteeIsm goal above the mimstry's threshold to accommodate employees WIth dIsabIlities . An employee's attendance goal(s) can be reset based on new information. . A manager can establish a personal absenteeism threshold, where reqUIred and possible, so that an employee who, due to a disabIlIty, cannot meet the ministry's threshold will - not constantly re-enter a level ------_.----- ------ QUESTIONS AND ANSWERS FOR MANAGERS I . An employee's inclusIOn in the ASP cannot be considered m job competitIons or other developmental opportunitIes . The fact that more than one extensIOn may occur at level three and that there is no set "maXImum" on the length of extensIOns under this level Will something change about the ASP as a result of the decision? The clanficatIOns mentioned above have now been mcorporated m the ASP's documentatIon. Take into account the dIrection m the Program Manual and related documents at the mtranet website, http Ilhr mbs gov on.ca (under the health and safety toggle button), and the following Q&As The employer has been directed to develop a calculatIOn system to minImIZe the dIscrepancy between the speed at WhICh 12-hour shift and 8-hour shift employees arrive at mmIstry thresholds As of June 1, 1999, an employee's absence for a ShIft(S) greater than a normal full- time working day for the relevant classificatIOn, shall be counted as If It were an absence of a normal workmg day, for the purpose of the ASP Any partial absences shall be sImIlarly pro- rated JOB COMPETITIONS OR OTHER DEVELOPMENTAL OPPORTUNITIES Can I consider an employee's inclusion in the ASP in job competitions or other developmental opportunities? No, mvolvement m the ASP IS Irrelevant. If employees' records of attendance will be taken mto consIderatIOn when makmg decIsions related to partIcular competItIons, lateral transfers or developmental opportUnItIes, ask for adVIce from your human resources contact It IS Important that you know how to comply wIth the Ontano Human RIghts Code m such matters GOAL SETTING WITHIN THE ASP Can I, as a manager, set an absenteeism goal above the ministry absenteeism threshold to accommodate an employee with a disability? Can I reset the goal during the review period? Yes, m consultatIOn WIth the employee Where an employee WIth a dIsabIlIty reqUIres accommodation, the program allows for attendance goals whIch exceed the mInIstry threshold and mdeed, allow for no numencal goal at all As needed, you can reset goals based on new health information. Your human resources contact can help If you need assistance or informatIon. --~..~-.---.....- --- -~~ -"~-'-'._---'-'~- QUESTIONS AND ANSWERS FOR MANAGERS II How should I, as a manager, proceed with goal setting if my employee indicates he or she has a medical condition which makes it impossible to predict how many days they may be absent from work due to illness? InitIally, the goal need not be numerIcal You and the employee may decide that further health mformatIOn IS needed before a numerical goal can be set, or that the mItlal short-term goals will be to obtam current health informatIOn (on prognOSIS, abilItIes and lImItatIOns) and to observe the employee's attendance for the first month of the improvement perIod After that, you and the employee could meet agam to set a numerical goal ThiS approach would allow you to set a fairly realistic goal based on recent attendance and current health mformatIOn. In additIOn to the numerIcal goal, other goals would mc1ude those you, as manager, are responsible for implementing, ie, accommodation measures If after the numerical goal is set, the employee advises he or she needs additional tlme off (e g , for the purposes of medical treatment such as surgery) you could reset the goal Through the employee, ask the health care practitloner for mformation on prognOSiS, abilItles and lImItatIOns Usmg current health mformatIOn, adjust the goal(s) accordmgly Document discussions, mc1udmg the ratIOnale for changing goals and give your employee a copy You also have the option, if a disabled employee's medical condItIOn is in flux or is difficult to diagnose, or new complIcatIOns arise, to add time to the improvement perIod of a level Seek the advice of your human resources contact. EXTENSIONS Can an employee have an additional extension at levels one and two? Level one has an mitial period of six months for improvement, With an additIOnal SiX months at the manager's dIscretIOn Level two has a perIod of six months for improvement For an employee with a disability, If the employee's medical condItIon IS In flux, or is dIfficult to diagnose, or new complications arise, additlonal time may be appropriate Seek the adVIce of your human resources contact. The last level of the ASP is level three Where needed, can more than one extension occur at level three? Is there a set maximum of 24 months? More than one extenSIOn is possible There is no set maXimum on the length of an extenSIOn When deCiding this issue take the employee's need for accommodatIOn and medical status (e g , medical conditIOn is m flux, or is dIfficult to diagnose, or new complIcatIOns have arIsen) mto account. Your human resources contact can help if you need assistance or information. Management Board Secretariat October 1999 ilEA Program Page 3 ---- -..---.--.-. QUESTIONS AND ANSWERS FOR MANAGERS I PERSONALIZED ABSENTEEISM THRESHOLD Everyone's attendance is monitored on an ongoing basis In addition, the ASP has a rule that if an employee's absences exceed the ministry threshold within 24-months of exiting a level, the employee reenters at his or her former level. Where required and possible, can I set a personalized absenteeism threshold for an employee with a disability so they do not continually reenter a level? Yes, a personalized absenteeIsm threshold can be set for an employee wIth a dIsabIlIty Employees who have a personal absenteeism threshold, as an accommodatIOn measure, would not reenter a level unless their absences exceeded their personal threshold If a personal absenteeIsm threshold IS being consIdered, seek the advice of your human resources contact HELP WITH EMPLOYMENT ACCOMMODATION I have an employee with a disability under the Ontario Human Rights Code? What should I be doing differently now? Be sure to check, at your next meetmg wIth the employee about the ASP, that, as in the past, attendance support goals are appropnately mdividuahzed and compatible wIth the employer's duty to accommodate (See the OPS operating pohcy on Employment AccommodatIon for People wIth DIsabIlItIes at the followmg intranet websIte address http / /mtra.cpb gov on.ca/html ) Consider applymg one or more of the followmg to the employee's SItuatIOn. settmg goals above the ministry's threshold, resetting goals based on new health mformation, extendmg a level, settmg a personalIzed absenteeIsm threshold for the momtormg portIOn of the ASP Keep In mmd that workable solutIOns come from creatIve and flexible thinking ThInk outsIde the box! - Management Board Secretariat October 1999 ilEA Program Page 4 ---------.-- --- QUESTIONS AND ANSWERS FOR MANAGERS II Where can I obtain more information on what employment accommodation is and how to make it happen? Talk to your human resources contact for advice and informatIOn. In addItIOn to the IlEA Program manuals and gUIdes, see three other Important resources Management Board Secretariat Equal Opportumty and Employment AccommodatIon for People wIth DIsabilItIes Operatmg PolIcies and the Manager's GUIde for Equal Opportumty (especially the sectIOn on employment accommodation for people with dIsabilities) These resources are at the mtranet websIte http / /mtra.cpb gov on.ca/html (under the "corporate dIreCtIves" headmg, then under the "human resources management" heading) - Management Board Secretariat October 1999 ilEA Program Page 5