GSB# 2003-4081, 2003-4082, 2004-3598
UNION# 2004-0234-0047, 2004-0234-0050, 2005-0234-0006
IN THE MATTER OF AN ARBITRATION
Under
THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT
Before
THE GRIEVANCE SETTLEMENT BOARD
BETWEEN
Ontario Public Service Employees Union (Dakroub)
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 Grievance Officer Ontario Public Service Employees Union
FOR THE EMPLOYER
Rena Khan Staff Relations Officer Ministry of Community Safety and Correctional Services
HEARING
January 27, 2005.
Decision
The parties agreed to an Expedited Mediation-Arbitration Protocol for the Maplehurst Correctional Complex. It is not necessary to reproduce the entire Protocol here. Suffice it to say that the parties have agreed to an expedited process wherein each party provides the vice-chair with written submissions, which include the facts and authorities the party intends to rely upon, one week prior to the hearing. At the hearing, oral evidence is not called, although the vice-chair is permitted to request further information or documentation. In addition, if it becomes apparent to the vice-chair that the issues involved in a particular case are of a complex or significant nature, the case may be taken out of the expedited process and processed through “regular” arbitration. Although individual grievors often wish to provide oral evidence at arbitration, the process adopted by the parties provides for a thorough canvassing of the facts prior to the hearing, and leads to a fair and efficient adjudication process. Arbitration decisions are issued in accordance with article 22.16 of the collective agreement and, therefore, are without precedent.
The grievance relates to the grievor’s status in the Attendance Support Program (ASP). The grievor is currently at Level 1 in the ASP. The grievor alleges that he has been unable to earn release from the program since 2000, because the employer has failed to set an individual threshold for him that is consistent with his medical condition. The grievor states that his treating physician will not reply to the employer’s request for an estimate of the number of days the grievor can be expected to miss in a one year or six month period. The union takes the position that the employer should have sought this information by requiring the grievor to attend an independent medical examination (IME), as permitted under the collective agreement.
The employer responds that the grievor has not cooperated in providing appropriate medical information, i.e. an estimate as to the number of days he may be expected to miss due to his medical condition. The employer takes the position that it cannot request an IME unless and until the grievor has provided medical information from his treating physician.
After considering the evidence and the submissions of the parties, I order as follows:
- The grievor is to be frozen in the ASP at his current level.
- The grievor will attend an IME under the terms set out in the collective agreement.
- The employer will give appropriate consideration to the IME report in reviewing the grievor's attendance target.
- If the IME report indicates a higher target is appropriate, the grievor shall be placed in the monitoring phase of Level 1 and provided the appropriate opportunity to meet the target.
- If the IME report indicates that the current target is appropriate, the grievor shall be returned to the point at which he was frozen, and the ASP shall be applied in the normal fashion on a go-forward basis.
- I will remain seized to deal with any issues arising from the implementation of this order.
Dated at Toronto, this 24th day of February, 2006.