GSB# 2004-1693, 2004-2168, 2004-2519, 2004-3517, 2004-3555
UNION# 2004-0234-0413, 2004-0234-0511, 2004-0234-0596, 2004-0234-0708, 2005-0234-0005
IN THE MATTER OF AN ARBITRATION
Under
THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT
Before
THE GRIEVANCE SETTLEMENT BOARD
BETWEEN
Ontario Public Service Employees Union (Kranstz)
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
December 13, 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 grievances all relate to a dispute between the grievor and the employer over a series of absences between July 8 and November 27, 2004, for which the grievor failed to provide medical documentation. The grievor was not paid for any of the days in question. The grievor argues that he was under the Attendance Support Program (ASP), and that he should not have been subjected to discipline for his attendance until he reached Level 3 of the program. He alleges it was arbitrary and inappropriate for the employer to suddenly decide to begin to treat his absenteeism as culpable, rather than continue to monitor his attendance under the ASP. Furthermore, the grievor asserts that, rather than penalizing him by docking his pay for the days in question, the employer ought to have invoked Art. 44.9 of the collective agreement, which permits the employer to require a medical examination by an independent medical examiner. Finally, the grievor argues that the employer had the obligation to take all necessary steps to ensure that he was appropriately accommodated in the workplace.
The employer responds that the grievor was provided with ample opportunity to provide an explanation and/or medical documentation to explain his ongoing inability to attend work on a regular basis. He provided no such information, and the employer made a decision to remove him from the ASP. The employer also exercised its right to require medical documentation for each absence. The employer asserts that the onus is on the grievor to prove his absences were legitimate, and, in addition, it was not disciplinary for the employer to deny sick leave pay when such proof was not forthcoming.
After reviewing the submissions of the parties and the collective agreement, it is my conclusion that the grievances should be allowed in part. In my view, the grievor was denied sick leave as a disciplinary response to culpable absenteeism. I cannot be certain that progressive discipline would not have altered the grievor’s behaviour and resulted in the dispute being resolved before November 2004. In recognition of this, I order that the grievor should be paid the equivalent of 24 hours pay, less statutory deductions.
Dated at Toronto, this 16th day of February, 2006.