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HomeMy WebLinkAbout2005-3011.Cook.07-03-05 Decision Crown Employees Grievance Settlement Board Commission de reglement des griefs des employes de la Couronne Nj ~ Ontario Suite 600 180 Dundas Sl. West Toronto, Ontario M5G 1Z8 Tel. (416) 326-1388 Fax (416) 326-1396 Bureau 600 180, rue Dundas Ouest Toronto (Ontario) M5G 1Z8 Tel. : (416) 326-1388 Telec. : (416) 326-1396 GSB# 2005-3011 UNION# 2005-0229-0030 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN Ontario Public Service Employees Union (Cook) Union - and - The Crown in Right of Ontario (Ministry of Community Safety and Correctional Services) Employer BEFORE Barry Stephens Vice-Chair FOR THE UNION Stephen Giles and Scott Andrews Grievance Officers Ontario Public Service Employees Union FOR THE EMPLOYER Pauline Jones and Faith Crocker Staff Relations Officers Ministry of Community Safety and Correctional Services HEARING February 19,20 & 21, 2007. DEADLINE FOR WRITTEN SUBMISSIONS March 2, 2007. 2 Decision INTRODUCTION The Ministry and OPSEU have agreed to a Med-Arb Protocol, signed February 27, 2006. Although OCI is not one of the institutions covered by the protocol, the parties agreed on February 19,2007 to be bound by the terms of the protocol for this session. 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 The grievor has been working under an accommodation since 2002. In October 2005, the employer asked the grievor to have his doctor fill out a report form meant to obtain updated medical information. The grievor gave the form to his doctor, who, instead of filling out the form, provided the employer with a letter. The employer wrote the grievor on November 16, 2005 advising that the letter was not sufficient, and stating: "Failure to return this Health Information Form by December 2, 2005 may result in the determination that your accommodation is no longer required." 3 The union asserts that the threat that the grievor's accommodation might be terminated due to a failure on the part of his doctor to fill out the proper form is inappropriate and arbitrary. There is no evidence that the grievor was at fault in any way, or that he had any control over the doctor's actions. More importantly, the employer can only make a decision to terminate an employee's accommodation based on medical reasons, and at the time of the letter there was no medical evidence that the grievor no longer required an accommodation. On the contrary, the doctor's letter supported ongoing accommodation, although it was not in set out in the employer's requested format. The union seeks a declaration and 80 hours in compensating time for the gnevor. The employer responds that the information captured by the form was required to substantiate the ongoing accommodation need, and that it is simply a statement of fact that, absent such information, the grievor's accommodation may be terminated. DECISION The union is entitled to a declaration that the grievor's medical accommodation cannot be terminated except for medical reasons. While the failure to provide such medical information could lead to termination of the accommodation, there is no evidence in the circumstances of this request that the grievor was at fault or had any control over his doctor's failure to use the employer's form. Moreover, the doctor did provide medical information to support the grievor's accommodation. From that perspective, the threat to terminate was inappropriate. Dated at Toronto, this 5th day of March, 2007. Barry