HomeMy WebLinkAbout2006-2550.Trotter.07-03-06 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# 2006-2550, 2006-2551
UNION# 2007-0229-0001,2007-0229-0002
IN THE MATTER OF AN ARBITRATION
Under
THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT
Before
THE GRIEVANCE SETTLEMENT BOARD
BETWEEN
Ontario Public Service Employees Union
(Trotter)
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.
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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 made attempts throughout 2006 to ensure that she would be booked off work from
December 22 to 24, 2006. She was not successful, and, ultimately, she called the workplace on
December 20, advising that, for medical reasons, she would be off sick for the three days in
question. She also advised at that time that she would be providing a doctor's note on her return
to work. The grievor provided the employer with a sick note on January 2 or 3, 2007. On
January 3, she received a letter from the employer advising her that she was suspected of abuse
of sick leave, and she was instructed to appear at an investigation meeting along with a union
representative. On January 4, she received a second letter, advising her that she would not be
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paid for the 3 days in question. The union argues that, even if the employer had a basis for
suspecting abuse of sick leave, this was dispelled by the doctor's note, and there was no reason
why the grievor's pay should have been stopped after she had provided medical evidence to
support the absence, especially given that the employer did not at any time challenge the
legitimacy of the doctor's note.
The investigation meeting took place on January 9, and, after reviewing the information provided
by the grievor, the employer agreed that the sick leave was legitimate. By this time, however,
instructions had already been implemented to withhold the grievor's pay for the three days in
question, and her paycheque on January 11 reflected that fact. The three days were re-credited
on her January 25 paycheque. As a result of the events outlined above, the grievor filed a
WDHP complaint. She requested an outside investigator be appointed by the Ministry's
Regional Office, and alleges that the employer failed to follow the WDHP policy. The grievor
states that, in addition to the delay in her pay, the employer's actions forced her to reveal details
of her medical condition to her union advisor, which she would not have been required to do had
the employer not breached her rights. She seeks an apology, punitive and human rights damages
for violation of her rights as a disabled employee, punitive damages for being subjected to the
demeaning treatment of the temporary loss of wages and revealing of medical information, lost
wages for sick time she took on January 6 and 7 resulting from the stress caused by the
employer's improper actions, and she asserts that none of her absences during this period should
be counted for purposes of the Attendance Support Program (ASP).
The employer responds that, given the circumstances, it had reasonable grounds to suspect that
the grievor might be abusing sick leave. However, after investigating the matter, they agreed
that the sick leave should be approved. Her pay was credited accordingly, although not until the
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subsequent pay period. The circumstances were found not to fall under the WDHP policy. The
fact that the grievor discussed her medical issues with her union representative arises from the
investigatory procedure, and is not a violation of the grievor's rights.
DECISION
The grievances are dismissed.
Dated at Toronto, this 6th day of March, 2007.
Barry