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Home My WebLink About1999-0413.Fogal.00-11-28 Decision o NTARI 0 EMPLOYES DE LA COL'RONNE CROWN EAIPLOYEES 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 #0413/99 OPSEU#99U039 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN Ontano Pubhc ServIce Employees U mon (Fogal) Gnevor - and - The Crown m RIght of Ontano (Mimsm of the Attome, General) Employer BEFORE FehcI~ Bnggs V Ice Chair FOR THE Nelson Roland GRlEVOR Counsel Bamster and SohcItor FOR THE Stephen Patterson EMPLOYER Counsel, Legal ServIces Branch Management Board Secretanat HEARING September 7 and November 8 2000 Dunng negotIatIOns for the present CollectIve Agreement, the partIes sIgned a Memorandum of Agreement dated March 18, 1999 that stated, m part: In recogmtIon that the partIes have reached a tentatIve collectIve agreement, the umon undertakes that It will conllnumcate to ItS members not to engage m strike related actIvIty The employer undertakes that where strike related actIvIty occurs It will notIfy the Umon as soon as possible and the Umon will undertake to take the necessary steps to remedy the problem. Faihng the resolutIOn of the problem, the followmg process shall apply 1. MBS wIll be consulted by hne Mimstrles and/or AgencIes pnor to the unposltIon of any dlsclplme 2. Any dlsClphnary actIOn taken by the Mimstry and/or Agency as a result of pre strike actIvItIes by an employee shall be placed before a mediator/arbItrator pnor to the actual dlsclplme bemg apphed. On May 3 1999 the Employer sent the Umon a letter that stated, m part ThIS IS to mform you that, as part of non-dlsClphnary actIon, certam OPSEU employees engaged m Illegal strike actIvIty dunng March 1999 wIll not be pmd for the penod of the actIvIty Further as dlsClplmary actIon under the memorandum, nllmstnes will be sendmg letters of repnmand to the employees mvolved. Attached you wIll find a hst of the specIfic employees, theIr mmlstry locatIon and the dates of the illegal strike actIvIty It IS our mtentIOn to comply WIth the Memorandum of Agreement pertammg to strike related actIvIty whIch was sIgned by the partIes on March l81h 1999 As stated m the above letter the Employer dId not pay many affected employees for the tune they were away from work. However m some CIrcumstances employees had been pmd for the tIme and the Employer recovered" those momes In accordance wIth the above Memorandum, the partIes asked the Board to medIate/arbItrate the two IS sues m dIspute The partIes agreed that I would have jUnSdlctIOn over all of the matters that now from the Memorandum, whether dIrect or penphera1. A number of attempts were made to resolve the Issues between the partIes. Unfortunately a resolutIon wa s not agreed upon and It was determmed that htIgatIon of the matters were necessary The partIes then addressed Impendmg Issues such as dIsclosure and process At our heanng held on September 7 2000 the Employer mfonned the Board and the Umon that, m the mterest of expedItIng thIS matter and takmg the sunset provIsIon of the collectIve agreement mto account, It would not proceed wIth the Issue of Imposmg dlsclplme as It had earher mtended. To be clear the Employer wIthdrew ItS mtentIon to Impose dlsclplme as set out m ItS letter of May 3 1999 However the Issue of whether sIck leave would be pmd for those employees who dId not attend at work remamed outstandmg A process for the expedItIous htIgatIon of the remammg Issues was dIscussed. There was general agreement that each employee who wIshed to take Issue WIth the wlthholdmg of sIck leave should have an 2 opportumty to have hIs/her case put before the Board for determmatIOn. There was concern for amount of tIme that mIght be necessan due to the potentIal number of such md1v1duals On October 17 2000 the heanng contmued at the Oshawa office of the Mimstn of the Attorney General. At that tIme the Dmon made submIssIons on three prehmman matters Two of those matters are pecuhar to the employees at the Attorney General s office and I am reservmg my decIsIon untIl a later date after I have had an opportumty to consIder them m a greater context. The thIrd prehmman matter was made on behalf of all of the atlected employees SUllply put, It was the Dmon s contentIOn that when the Employer wIthdrew ItS mtentIOn to Impose d1sc1phne It removed the only ground It had for denymg employees sIck leave m the first mstance Accordmgly the Dmon asked me to order the Employer to pay all affected employees the outstandmg sIck leave After consIderatIOn I am denymg the Dmon s prehmman motIon. It IS true that the Employer wIthdrew ItS mtentIOn to Impose d1sc1phne However the Employer has not altered ItS vIew that the employees at Issue were not ill on the days m questIOn but were part1c1patmg m an Illegal strike Accordmgly the questIOn of whether sIck leave was ullproperly wIthheld remams outstandmg and I will hear and detenmne the matter on an md1v1dual basIs. The most recent day ofheanng was held on November 8, 2000 and the partIes had further prelumnan matters to be determmed. The Issues addressed were concernmg the process to be followed for htIgatIOn. The Dmon strenuously asserted that even employee who was adversely affected by the Employer s w1thholdmg of sIck leave ought to be gIven a full and complete opportumty to mtroduce any eVIdence they feel appropnate After consIderatIOn of the Issues and submIssIons made by the partIes, I am firmly of the VIew that It IS essentIal that an expedItIous process be utIhzed. There are potentIally hundreds of md1v1duals who want to contest the Employer s w1thholdmg of sIck leave It would make no labour relatIOns sense to proceed m the normal fashIOn. Indeed, gIven the delay that would occur harm could be done That IS m no one s mterest. The remammg Issue to be decIded IS whether each md1v1dual was sufficIently 111 on certam days to take advantage ofthe sIck leave provIsIOns of the collectIve agreement. In the CIrcumstances of thIS most unusual case I am gomg to set out the process to be followed for htIgatIon. That process IS 1. Each md1v1dual who wIshes to contmue wIll produce a 'will-say statement that sets out: The nature of hIS /her Illness How hIs/her illness precluded hUll/her from workmg The medIcal treatment sought and receIved. 3 2. The wIll-say statement wIll be accompamed by any supportmg documentatIOn. 3 The wIll-say statement wIll be provIded to the Emplover one week pnor to the heanng date In accordance wIth an earlIer rulmg Issued to the partIes m a letter medIcal certIficates can be protlered mto eVIdence and I wIll detennme how much weIght those documents shall be gIven on a case by case basIs No mdlvldual shall be heard who has failed to comply wIth the above I expect that the wIll-say statements shall be sufficIently detailed so as to make clear all the relevant facts the umon mtends to rely upon. To be clear It IS my mtentIon that any viva voce eVIdence shall be extremely bnef Generally speakmg, eVIdence from a medIcal practItIoner shall not be called. However If! reqmre clanficatIon of medIcal eVIdence I shall mfonll the partIes and arrangements shall be made for such eVIdence to be called. The Emplover and the Dmon shall be gIven an opportumty to make full subnllssIOns In arnvmg at thIS procedure It IS my hope that many mdlvlduals can be heard on each day ofheanng. Dated at Toronto thIS 28th day of November 2000 FelIcIty D Bnggs, VIce ChaIr 4