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HomeMy WebLinkAbout2005-1979.Sparkes.07-01-29 Decision Crown Employees Grievance Settlement Board Suite 600 180 Dundas Sl. West Toronto, Ontario M5G 1Z8 Tel. (416) 326-1388 Fax (416) 326-1396 Commission de reglement des griefs des employes de la Couronne Nj ~ Ontario Bureau 600 180, rue Dundas Ouest Toronto (Ontario) M5G 1Z8 Tel. : (416) 326-1388 Telec. : (416) 326-1396 GSB# 2005-1979,2005-1980 UNION# 2005-0517-0050, 2005-0517-0051 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT BETWEEN BEFORE FOR THE UNION FOR THE EMPLOYER HEARING DEADLINE FOR WRITTEN SUBMISSIONS Before THE GRIEVANCE SETTLEMENT BOARD Ontario Public Service Employees Union (Sparkes) - and - The Crown in Right of Ontario (Ministry of Community Safety and Correctional Services) Barry Stephens Scott Andrews Grievance Officer Ontario Public Service Employees Union Pauline Jones Staff Relations Officer Ministry of Community Safety and Correctional Services November 23, 2006. January 12,2007. Union Employer Vice-Chair 2 Decision INTRODUCTION The parties have agreed to a Med-Arb Protocol, signed February 27, 2006. Although the Toronto Jail was not specifically covered by that protocol, at the outset of our session on September 27, 2006, both the union and the employer agreed to follow the protocol as closely as possible. It is not necessary to reproduce the entire Protocol here. Suffice it to say that, as part of the Protocol, the parties have agreed to a "True Mediation-Arbitration" process, wherein each provides the vice-chair with submissions, which include the facts and authorities each relies upon. The process adopted by the parties provides for a canvassing of the facts during the mediation phase under the Protocol. Arbitration decisions are issued in accordance with Article 22.16 of the collective agreement, without reasons, and are without prejudice or precedent. The parties were unable to resolve this matter in mediation. Accordingly, the matter has been referred to me as a True Mediation/Arbitration decision under the Protocol. FACTS These grievances deal with two absences, one in June 2005 and one in July 2005. Both absences were for five days. The grievor objects to the fact that she was asked for medical certificates with respect to both absences. She alleges that she spoke to her direct supervisor, Mr. Roth, in May 2005, and advised him at that time that she had serious medical issues, and that she was likely to require significant time off, and that there was the possibility she would have to be replaced. She points to her letter to Mr. Roth, dated June 28, 2005, in which she stated that she was "fundamentally disappointed" in being advised that Mr. Roth suspected her of abusing sick leave, "... especially when I had shared my current health situation with you." There was no 3 response to this letter from Mr. Roth. The grievor asserts Mr. Roth's actions were a breach of Article 44.10 and seeks a declaration to that effect, and a cease and desist order against the employer. The employer responds that the grievor's attendance had been a concern and that Mr. Roth denied that the grievor had advised him of her medical issues. The employer asserts that Mr. Roth asked the grievor for a doctor's certificate under Article 44.10 of the collective agreement, on the basis that it was suspected that she might be abusing her sick leave. DECISION After carefully reviewing the evidence, and the submissions of the parties, it is my conclusion that the employer breached the terms of Article 44.10, and I so declare. It is not appropriate, given the passage of time and potential changes to the grievor's medical condition, to issue a cease and desist order. Dated at Toronto, this 29th day of January, 2007. Barry