GSB# 2001-1379, 2002-0001, 2002-0179, 2002-0332, 2002-1116, 2002-2462, 2002-2463, 2002-2464, 2002-2574, 2002-2574

UNION# 01C979, 02C242, 02C244, 02C245, 02C243, 2002-0128-0117, 2002-0128-0023, 2002-0128-0066, 2002-0128-0067, 02C892, 2002-0128-0176, 2002-0128-0175, 2002-0128-0174, 2003-0128-0004, 2003-0128-0005

IN THE MATTER OF AN ARBITRATION

Under

THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT

Before

THE GRIEVANCE SETTLEMENT BOARD

BETWEEN

Ontario Public Service Employees Union

(Brydges)

Union

• and -

The Crown in Right of Ontario

(Ministry of Community Safety and Correctional Services)

Employer

BEFORE

Felicity D. Briggs

Vice-Chair

FOR THE UNION

Stephen Giles

Grievance Officer

Ontario Public Service Employees Union

FOR THE EMPLOYER

Lucy Neal

Senior Staff Relations Officer

Ministry of Community Safety and Correctional Services

HEARING

May 24, 2006.

Decision

On May 9, 2006, I issued the following decision:

On February 2, 2004, the parties entered into a Memorandum of Settlement regarding certain grievances filed by Mr. David Brydges, a Correctional Officer at the Sarnia Jail. It was agreed that I was to remain seized of any implementation difficulties that might arise in this regard.

Paragraph 4 of the Memorandum stated the following:

The Employer agrees to recognize the permanent workplace accommodation that has been in place since 1996. The Employer will schedule the grievor in accordance with his accommodation requirements. Furthermore, the Employer agrees that COR6.4 is not applicable where the grievor is being accommodated.

Subsequent to this Memorandum, Mr. Brydges was absent from the workplace and received Long Term Disability benefits. Recently his physician sent a report that the grievor is able to return to work but is to have “absolutely no inmate contact”. The Employer next sent a letter to the grievor’s physician asking a number of questions which led the grievor and the Union to the conclusion that the Employer is attempting to establish a new accommodation. Specifically it was the Union’s concern that the Employer will circumvent or violate the Memorandum of Settlement.

After consideration of the facts and submissions in this matter, I understand why the Union’s concerns. The letter sent to the grievor’s physician might lead one to think that the Employer is attempting to alter the deal set out in the Memorandum of Settlement signed in 2004. That would be inappropriate and for that reason I am of the view that the grievor’s physician need not respond to the offending letter.

The parties have agreed to the terms of the accommodation for this grievor in February of 2004. Those terms cannot be unilaterally altered. However, I do understand that the Employer might want clarification regarding the physician’s statement regarding inmate contact. The Employer can write to Mr. Brydges’ physician and inquire as to the meaning of “absolutely no inmate contact”.

I remain seized in the event that there are further difficulties once the response to this inquiry is received.

As is apparent from the above, this decision was issued because the Union was of the view that the Employer was attempting to ask questions of the grievor’s physician which were inappropriate given the Memorandum of Agreement. In the event that it was not clear in my above order, I agreed with Union’s assessment. Further, I ordered that the single area of appropriate inquiry deals with the issue of what constitutes “absolutely no inmate contact.”

The Union brought this matter back before me because it received an amended letter from the Employer which, in my view, is in direct contravention of my order. I am concerned not only that an order of the Board has been so slavishly disregarded by this Employer but that harm is being done to the reintegration of the grievor into the workplace. The Union has asked for damages in this regard. I am prepared to hear submissions and make a determination as to whether this is an appropriate instance for damages to be ordered. However, at this point, given that the grievor has a medical appointment in the very near future, I will defer the matter of damages.

I order that the grievor have Dr. Annisette respond to the following letter:

In a February 2, 2006 letter you indicated that Mr. Brydges is to have “absolutely no inmate contact”. This restriction appears to be as a result of his physical disability of the “left shoulder due to severe rotator cuff disease, as well as a full thickness right rotator cuff tear of the right shoulder”.

The Employer is considering an accommodation for Mr. Brydges to work nights in the Control Module. However, we need to understand what you meant by “absolutely no inmate contact”. If Mr. Brydges was assigned to the Control Module, it will happen that he will see inmates either in the hall from time to time or through a glass partition. The Employer requires confirmation that there are no physical or emotional reasons to disallow such a work assignment.

Further, I order that the letter written by Neil Neville dated May 18, 2006 that the grievor was instructed to give to Dr. Annisette be disregarded.

I remain seized of the issue of damages.

Dated in Toronto, this 24^th day of May, 2006.```