HomeMy WebLinkAbout2016-0562.Kolmann.18-09-28 Decision
Crown Employees
Grievance Settlement
Board
Suite 600
180 Dundas St. West
Toronto, Ontario M5G 1Z8
Tel. (416) 326-1388
Fax (416) 326-1396
Commission de
règlement des griefs
des employés de la
Couronne
Bureau 600
180, rue Dundas Ouest
Toronto (Ontario) M5G 1Z8
Tél. : (416) 326-1388
Téléc. : (416) 326-1396
GSB# 2015-0557
UNION# 2015-0368-0176
IN THE MATTER OF AN ARBITRATION
Under
THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT
Before
THE GRIEVANCE SETTLEMENT BOARD
BETWEEN
Ontario Public Service Employees Union
(Kolmann) Union
- and -
The Crown in Right of Ontario
(The Ministry of Community Safety and Correctional Services) Employer
BEFORE Randi H. Abramsky Arbitrator
FOR THE UNION Richard Blair
Ryder Wright Blair & Holmes LLP
Counsel
FOR THE EMPLOYER Peter Dailleboust
Treasury Board Secretariat
Legal Services Branch
Senior Counsel
HEARING
September 18, 2018
- 2 -
Decision
[1] This matter, by agreement of the parties, is proceeding under Article 22.16.7, and
therefore has no precedential value beyond the instant case.
[2] The parties proceeded through documents and submissions only. No viva voce
evidence was called.
[3] At issue is whether the Grievor is entitled to short-term sickness benefits under
Article 44.1.2 for medical treatments she receives due to a disability.
Approximately one time per month, she travels from Lindsay to Markham, Ontario,
to receive an injection to control her symptoms. She normally works, through an
agreed upon accommodated schedule, from 6:00 a.m. to 2:00 p.m., Monday to
Friday. The distance from Lindsay to Markham is approximately 90 kilometres.
[4] Article 44.1.2 states that “an employee who is unable to attend to his or her duties
due to sickness or injury is entitled to leave of absence with pay as follows…” It is
undisputed that the Grievor is otherwise able to attend to her duties on the dates
of her treatment. It is also undisputed, for the purposes of this hearing, that the
Grievor requires those treatments for her medical condition.
[5] What is unclear, however, is why the treatment is required during the time she is
scheduled to work. The treatment involves an injection. Even assuming that the
treatment is only available in Markham, Monday to Friday, during the hours of 9
a.m. to 5 p.m., and there needs to be time for an assessment after the injection to
ensure there is no reaction (and there was no evidence as to any of this), it would
appear that the treatment could be done after work. The Grievor is finished with
work by 2:00 p.m. She could get to Markham by 4:00 p.m. (or 4:30 at the latest)
and still have the treatment prior to the normal close of business.
[6] The situation in Re North Bay Regional Health Centre and ONA (Grievance of
C.L.), 2014 CanLII 13512 (Kaplan), cited by the Union, is quite different. In that
case, as stated at p. 4, the grievor required treatment through an IV which took
“several hours to administer” and the “clinic that administers the treatments is only
open during regular office hours Monday thru Friday” and “does not provide service
in the evenings or on weekends.” The grievor, due to an accommodation, only
worked day shifts, Monday to Friday. Consequently, under the facts, there was no
possibility that the grievor could obtain her treatment outside of her regular work
day.
[7] Further, that decision found that the Employer’s denial of sick leave benefits did
not violate the collective agreement. Arbitrator Kaplan determined, at p. 10, that
“[t]he denial of the sick pay claim was in compliance with the collective
agreement…”. Instead, he found that the Ontario Human Rights Code was violated
because “the grievor was discriminated against through the application of an
arbitrary three-week rule…”. Under that rule, had her treatments been done every
three weeks it would have resulted in sick pay, but because they occurred every
six weeks, they were a “new” incident and were not covered after the sixth one.
- 3 -
That rule, he found, “discriminates against the grievor by treating her differently
than other employees with a disability.” He ordered the parties to modify the three-
week rule and accommodate the grievor.
[8] In this case, the Union does not argue that the Grievor should be accommodated.
It was undisputed that she is being accommodated by taking the day off work for
treatment, but without pay. The claim is that she is entitled to sick pay under Article
44.1.2.
[9] As noted, the situation here involves an injection, and there is no evidence that it
can only be done while the Grievor would otherwise be at work. It might not be as
convenient to travel and obtain the treatment after work, but under these specific
circumstances, I am not persuaded that the Grievor is entitled to sick pay benefits
for the days she takes off for her treatments. Had the facts shown that the
treatments are required and may only be done during work time, it might be that
she should be deemed “unable to work” during those treatments. The evidence
here does not establish that.
[10] Accordingly, the grievance is dismissed.
Dated at Toronto, Ontario this 28th day of September, 2018.
“Randi H. Abramsky”
Randi H. Abramsky, Arbitrator