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HomeMy WebLinkAbout2004-1693.Kranstz.06-02-16 Decision Crown Employees Commission de Nj Grievance Settlement reglement des griefs Board des employes de la Couronne ~ Suite 600 Bureau 600 Ontario 180 Dundas Sl. West 180 rue Dundas Ouest Toronto Ontario M5G 1Z8 Toronto (Ontario) M5G 1Z8 Tel. (416) 326-1388 Tel. (416) 326-1388 Fax (416) 326-1396 Telec. (416) 326-1396 GSB# 2004-1693 2004-2168 2004-2519 2004-3517 2004-3555 UNION# 2004-0234-0413 2004-0234-0511 2004-0234-0596 2004-0234-0708 2005-0234-0005 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN Ontano PublIc ServIce Employees Umon (Kranstz) Union - and - The Crown In RIght of Ontano (Mimstry ofCommumty Safety and CorrectIOnal ServIces) Employer BEFORE Barry Stephens Vice-Chair FOR THE UNION Stephen GIles Gnevance Officer Ontano PublIc ServIce Employees Umon FOR THE EMPLOYER Rena Khan Staff RelatIOns Officer Mimstry of Commumty Safety and CorrectIOnal ServIces HEARING December 13 2005 2 DeCISIon The partIes agreed to an ExpedIted MedIatIOn-ArbItratIOn Protocol for the Maplehurst CorrectIOnal Complex. It IS not necessary to reproduce the entIre Protocol here Suffice It to say that the partIes have agreed to an expedIted process whereIn each party provIdes the vIce-chair wIth wntten submIssIOns, whIch Include the facts and authontIes the party Intends to rely upon, one week pnor to the heanng. At the heanng, oral eVIdence IS not called, although the vIce-chair IS permItted to request further InformatIOn or documentatIOn. In addItIOn, If It becomes apparent to the vIce-chair that the Issues Involved In a partIcular case are of a complex or sIgmficant nature, the case may be taken out of the expedIted process and processed through "regular" arbItratIOn. Although IndIVIdual gnevors often wIsh to provIde oral eVIdence at arbItratIOn, the process adopted by the partIes provIdes for a thorough canvaSSIng of the facts pnor to the heanng, and leads to a fair and efficIent adJudIcatIOn process ArbItratIOn decIsIOns are Issued In accordance wIth artIcle 22 16 of the collectIve agreement and, therefore, are wIthout precedent. The gnevances all relate to a dIspute between the gnevor and the employer over a senes of absences between July 8 and November 27 2004 for whIch the gnevor faIled to provIde medIcal documentatIOn. The gnevor was not paid for any of the days In questIOn. The gnevor argues that he was under the Attendance Support Program (ASP) and that he should not have been subJected to dIscIplIne for hIS attendance untIl he reached Level 3 of the program. He alleges It was arbItrary and Inappropnate for the employer to suddenly decIde to begIn to treat hIS absenteeIsm as culpable, rather than contInue to momtor hIS attendance under the ASP Furthermore, the gnevor asserts that, rather than penalIzIng hIm by dockIng hIS pay for the days In questIOn, the employer ought to have Invoked Art. 44 9 of the collectIve agreement, whIch 3 permIts the employer to reqUIre a medIcal eXamInatIOn by an Independent medIcal examIner FInally the gnevor argues that the employer had the oblIgatIOn to take all necessary steps to ensure that he was appropnately accommodated In the workplace The employer responds that the gnevor was provIded wIth ample opportumty to provIde an explanatIOn and/or medIcal documentatIOn to explaIn hIS ongoIng InabIlIty to attend work on a regular basIs He provIded no such InformatIOn, and the employer made a decIsIOn to remove hIm from the ASP The employer also exercIsed ItS nght to reqUIre medIcal documentatIOn for each ab sence The employer asserts that the onus IS on the gnevor to prove hIS absences were legItImate, and, In addItIOn, It was not dIscIplInary for the employer to deny sIck leave pay when such proof was not forthcomIng. After reVIeWIng the submIssIOns of the partIes and the collectIve agreement, It IS my conclusIOn that the gnevances should be allowed In part. In my VIew the gnevor was demed sIck leave as a dIscIplInary response to culpable absenteeIsm I cannot be certaIn that progressIve dIscIplIne would not have altered the gnevor's behavIOur and resulted In the dIspute beIng resolved before November 2004 In recogmtIOn of thIS, I order that the gnevor should be paid the eqUIvalent of 24 hours pay less statutory deductIOns Dated at Toronto thIS 16th day of February 2006