GSB #0413/99

OPSEU#99U039

IN THE MATTER OF AN ARBITRATION

Under

THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT

Before

THE GRIEVANCE SETTLEMENT BOARD

BETWEEN

Ontario Public Service Employees Union

(Fogal)

Grievor

• and -

The Crown in Right of Ontario

(Ministry of the Attorney General)

Employer

BEFORE Felicity Briggs Vice Chair

FOR THE Nelson Roland

GRIEVOR Counsel

Barrister and Solicitor

FOR THE Stephen Patterson

EMPLOYER Counsel, Legal Services Branch

Management Board Secretariat

HEARING September 7 and November 8, 2000. During negotiations for the present Collective Agreement, the parties signed a Memorandum of Agreement dated March 18, 1999 that stated, in part:

In recognition that the parties have reached a tentative collective agreement, the union undertakes that it will communicate to its members not to engage in strike related activity.

The employer undertakes that where strike related activity occurs it will notify the Union as soon as possible and the Union will undertake to take the necessary steps to remedy the problem.

Failing the resolution of the problem, the following process shall apply:

1. MBS will be consulted by line Ministries and/or Agencies prior to the imposition of any discipline

2. Any disciplinary action taken by the Ministry and/or Agency as a result of pre-strike activities by an employee shall be placed before a mediator/arbitrator prior to the actual discipline being applied.

On May 3, 1999, the Employer sent the Union a letter that stated, in part:

This is to inform you that, as part of non-disciplinary action, certain OPSEU employees engaged in illegal strike activity during March 1999, will not be paid for the period of the activity. Further, as disciplinary action under the memorandum, ministries will be sending letters of reprimand to the employees involved. Attached you will find a list of the specific employees, their ministry, location and the dates of the illegal strike activity.

It is our intention to comply with the Memorandum of Agreement pertaining to strike related activity which was signed by the parties on March 18^th, 1999.

As stated in the above letter, the Employer did not pay many affected employees for the time they were away from work. However, in some circumstances employees had been paid for the time and the Employer “recovered” those monies.

In accordance with the above Memorandum, the parties asked the Board to mediate/arbitrate the two issues in dispute. The parties agreed that I would have jurisdiction over all of the matters that flow from the Memorandum, whether direct or peripheral. A number of attempts were made to resolve the issues between the parties. Unfortunately, a resolution was not agreed upon and it was determined that litigation of the matters were necessary. The parties then addressed impending issues such as disclosure and process.

At our hearing held on September 7, 2000, the Employer, informed the Board and the Union that, in the interest of expediting this matter and taking the “sunset provision” of the collective agreement into account, it would not proceed with the issue of imposing discipline as it had earlier intended. To be clear, the Employer withdrew its intention to impose discipline as set out in its letter of May 3, 1999. However, the issue of whether sick leave would be paid for those employees who did not attend at work remained outstanding.

A process for the expeditious litigation of the remaining issues was discussed. There was general agreement that each employee who wished to take issue with the withholding of sick leave should have an opportunity to have his/her case put before the Board for determination. There was concern for amount of time that might be necessary due to the potential number of such individuals.

On October 17, 2000, the hearing continued at the Oshawa office of the Ministry of the Attorney General. At that time, the Union made submissions on three preliminary matters. Two of those matters are peculiar to the employees at the Attorney General’s office and I am reserving my decision until a later date after I have had an opportunity to consider them in a greater context. The third preliminary matter was made on behalf of all of the affected employees. Simply put, it was the Union’s contention that when the Employer withdrew its intention to impose discipline, it removed the only ground it had for denying employees’ sick leave in the first instance. Accordingly, the Union asked me to order the Employer to pay all affected employees the outstanding sick leave.

After consideration I am denying the Union’s preliminary motion. It is true that the Employer withdrew its intention to impose discipline. However, the Employer has not altered its view that the employees at issue were not ill on the days in question but were participating in an illegal strike. Accordingly, the question of whether sick leave was improperly withheld remains outstanding and I will hear and determine the matter on an individual basis.

The most recent day of hearing was held on November 8, 2000 and the parties had further preliminary matters to be determined. The issues addressed were concerning the process to be followed for litigation. The Union strenuously asserted that every employee who was adversely affected by the Employer’s withholding of sick leave ought to be given a full and complete opportunity to introduce any evidence they feel appropriate.

After consideration of the issues and submissions made by the parties, I am firmly of the view that it is essential that an expeditious process be utilized. There are potentially hundreds of individuals who want to contest the Employer’s withholding of sick leave. It would make no labour relations sense to proceed in the normal fashion. Indeed, given the delay that would occur, harm could be done. That is in no one’s interest.

The remaining issue to be decided is whether each individual was sufficiently ill on certain days to take advantage of the sick leave provisions of the collective agreement. In the circumstances of this most unusual case, I am going to set out the process to be followed for litigation. That process is:

1. Each individual who wishes to continue will produce a “will-say” statement that sets out:

• The nature of his/her illness

• How his/her illness precluded him/her from working

• The medical treatment sought and received.

2. The will-say statement will be accompanied by any supporting documentation.

3. The will-say statement will be provided to the Employer one week prior to the hearing date.

In accordance with an earlier ruling issued to the parties in a letter, medical certificates can be proffered into evidence and I will determine how much weight those documents shall be given on a case by case basis.

No individual shall be heard who has failed to comply with the above. I expect that the will-say statements shall be sufficiently detailed so as to make clear all the relevant facts the union intends to rely upon. To be clear, it is my intention that any viva voce evidence shall be extremely brief. Generally speaking, evidence from a medical practitioner shall not be called. However, if I require clarification of medical evidence, I shall inform the parties and arrangements shall be made for such evidence to be called.

The Employer and the Union shall be given an opportunity to make full submissions. In arriving at this procedure it is my hope that many individuals can be heard on each day of hearing.

Dated at Toronto, this 28th day of November, 2000.