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Home My WebLink About2021-3254.Hamada.23-04-28 DecisionCrown Employees Grievance Settlement Board Suite 600 180 Dundas St. West Toronto, Ontario M5G 1Z8 Tel. (416) 326-1388 Commission de règlement des griefs des employés de la Couronne Bureau 600 180, rue Dundas Ouest Toronto (Ontario) M5G 1Z8 Tél. : (416) 326-1388 GSB# 2021-3254 UNION# 2022-0229-0004 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN Ontario Public Service Employees Union (Hamada) Union - and - The Crown in Right of Ontario (Ministry of the Solicitor General) Employer BEFORE Brian P. Sheehan Arbitrator FOR THE UNION Gregg Gray Ontario Public Service Employees Union Grievance Officer FOR THE EMPLOYER David Marincola Treasury Board Secretariat Employee Relations Advisor HEARING April 5, 2023 - 2 - Decision [1] The Employer and the Union at the Ontario Correctional Institute agreed to participate in the Expedited Mediation/Arbitration process in accordance with the negotiated Protocol. It is not necessary to reproduce the entire Protocol. Suffice to say, that the parties have agreed to a True Mediation/Arbitration process wherein each party provides the Arbitrator with their submissions setting out the facts and the authorities they respectively will rely upon. This decision is issued in accordance with the Protocol and with Article 22.16 of the collective agreement; and it is without prejudice or precedent. [2] Employer Rosalinda Hamada (the "grievor") is employed as a Senior Food Services Officer at the Ontario Correctional Institute ("OCI"). [3] The grievance alleges that the Employer violated the collective agreement by not permitting the grievor to use sick credits for an absence that occurred on December 21, 2021. [4] The operations of the OCI were temporarily transferred to the Maplehurst Corrections Centre (MHCC) in light of the OCI facility in Brampton being temporarily closed. Accordingly, at the time of the events giving rise to the grievance, the grievor was working alongside the MHCC kitchen staff. [5] On December 21, 2021, the grievor reported to work at 6 AM and commenced working. [6] Ms. Lynda Underfinger, a MHCC Food Services Helper who was the "beltline supervisor" that day, asked the grievor for assistance to prepare "condiment cups". The grievor, according to Ms. Underfinger, refused to help. Ms. Underfinger reported the grievor's failure to provide assistance to Joseph Nedumkaryil, Assistant Food Services Manager at MHCC. [7] Mr. Nedumkaryil asserted that upon asking the grievor to help Ms. Underfinger, the grievor refused. He claimed the grievor was agitated so he invited her into his office - 3 - to continue the conversation. According to Mr. Nedumkaryil, the grievor asserted she did not have to take direction from Ms. Underfinger, and she also raised another scenario wherein she claimed that Ms. Underfinger did not act appropriately. Mr. Nedumkaryil repeated the direction that the grievor should help Ms. Underfinger on the production line. The grievor walked out of Mr. Nedumkaryil's office stating that she was stressed and was going home. [8] After the exchange with Mr. Nedumkaryil, the grievor spoke to Adam Douglas, OCI Food Services Supervisor. The grievor informed Mr. Douglas that notwithstanding the fact she was now a Cook 3, Maplehurst Kitchen Management, who had not been informed of her new position, still treated her as a Cook 2 assigning her the same duties as a Food Services Helper, causing her a great deal of stress. [9] According to the grievor’s recounting of the events on the day in question, she wasn't feeling well during the early part of her shift. She asserted that after she was treated in an inappropriate manner by Mr. Nedumkaryil, who was not respecting her position and her role with OCI, she was not well enough to complete her shift because of a headache. She stated she went home, took some Tylenol, and rested. [10] The Employer did not pay the grievor for the balance of her shift on December 21st. [11] No request was made by the Employer for the grievor to provide a medical certificate for her absence with respect to the remainder of her shift. [12] Upon reviewing the relevant documentation and the submissions of the parties, it is my determination on a balance of probabilities that the grievor's decision to leave work was not due to her being too sick to continue working; but rather, she was upset and frustrated by the lack of respect being afforded to her as she saw it. No issue is taken with the sincerity of the grievor's belief that she has not been treated appropriately by the Maplehurst kitchen management, or that she was genuinely upset by the events that occurred on the morning of December 21st. That being said, the facts do not support the conclusion that she could not continue to work the rest of her shift because she was too ill. Tellingly, at a grievance meeting on March 29, 2022, the grievor was asked if Mr. Douglas had advised her during their - 4 - conversation on December 21st that she did not have to assist Ms. Underfinger with creating "condiment cups", would she have finished her shift. The grievor responded that she would have, as she would have felt respected. [13] The Union suggested that if the Employer suspected the grievor was not ill, they could have required her to produce a medical certificate, and by failing to do so, they could not challenge the legitimacy of the claim for sick leave. Pursuant to the provisions of the collective agreement, a manager has the discretion to request that an employee supply a medical certificate with respect to an absence of less than five days. In certain circumstances, the failure of the Employer to utilize its discretion to request a medical certificate may be prejudicial, if, in fact, not fatal, to the Employer’s denial of a sick leave claim. That provision does not suggest, however, that the Employer is necessarily obligated to request a medical certificate in relation to a decision to deny a claim for sick leave. The Employer can adopt the position that there is no need to make an employee "prove" an illness by way of providing a medical certificate, if the Employer is of the view that the evidence as a whole suggests that an employee left work for reasons other than being too sick to continue working. [14] In conclusion, the grievance is, hereby, dismissed, as it has been determined that the grievor's failure to complete her shift on December 21st was not due to her being too ill to perform her duties. Dated at Toronto, Ontario this 28th day of April 2023. “Brian P. Sheehan” _____________________ Brian P. Sheehan, Arbitrator