GSB# 2003-2759, 2003-3854, 2004-0027

UNION# 2003-0545-0002, 2004-0545-0001, 2004-0545-0004

IN THE MATTER OF AN ARBITRATION

Under

THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT

Before

THE GRIEVANCE SETTLEMENT BOARD

BETWEEN

Ontario Public Service Employees Union (Smith)

Union

• and -

The Crown in Right of Ontario (Ministry of Health and Long-Term Care)

Employer

BEFORE

Felicity D. Briggs

Vice-Chair

FOR THE UNION

John Brewin Ryder Wright Blair & Holmes LLP Barristers and Solicitors

FOR THE EMPLOYER

Benjamin Parry Counsel Ministry of Government Services

HEARING

November 18, December 20, 2004; 21 June, July 14 & 26, September 8 & 9, 2005; January 12 & 23, February 24, March 21, April 7, May 29, July 6, October 2 & 3, 2006.

Decision

Ms. Andrea Smith worked as a Lab Attendant with the Ministry and has been in the Ontario Public Service since 1990. Between July of 2003 and April of 2004, she filed three grievances that primarily allege harassment, discrimination and unjust dismissal. The grievor left her workplace on sick leave July 31^st, 2003 and although her sick leave benefits had been terminated she did not return before receiving her letter of termination.

There were numerous attempts to mediate this matter at the beginning of and during the course of the litigation. The parties asked me to make efforts in this regard and at one point in the proceedings the parties were assisted by another Vice Chair. These efforts were not successful and the hearing continued for many days over the course of several months.

At the commencement of these proceedings that parties agreed that the Union would proceed first to call its evidence regarding the allegations of harassment and discrimination. The Employer would then proffer its evidence regarding the grievor’s discharge and any evidence in response to the grievor’s allegations. The Union and the grievor would then have wide latitude in reply evidence particularly regarding the evidence regarding the dismissal.

To date I have heard all of the Union’s evidence regarding the grievor’s allegations and evidence from the Employer’s first witness in response.

At our most recent day of hearing counsel for the parties informed the Board that it was being asked to determine the outstanding matters in accordance with the provisions of Article 22.16 of the Collective Agreement. That is to say, given the extraordinary circumstances of this case, the parties elected to bestow upon the Board the jurisdiction to decide the three grievances based upon the evidence heard to date, the admitted exhibits and submissions.

The Union informed the Board that the grievor did not agree that utilization of Article 22.16 was appropriate in this instance. However, the Union is the party to the Collective Agreement and it was the Union’s firmly held view that to engage in this process was in the best interests of Ms. Smith.

At the outset of this litigation, the parties agreed upon facts. It is useful to set out that agreement as follows:

1. On December 18, 2003, Ms. Sheila Haddad telephoned the grievor to again discuss return to work and again advised her that she required a medical certification to authorize her absence. The Grievor was told that she was expected to accept her new rotation. The grievor refused.

2. On January 12, 2004, Ms. Sheila Haddad sent a registered letter stating among other things that the Ministry had not received a medical certificate to support her leave and she was therefore ordered to return to work on Monday January 19, 2004 or to provide a medical certificate.

3. On January 15, 2004, Ms. Sheila Haddad spoke with the grievor and read to her the last paragraph of the January 12, 2004 letter.

4. On January 19, 2004, Ms. Sheila Haddad notified the grievor that a medical certificate was required that day or her short term sick benefits would cease.

5. On January 19, 2004, Ms. Sheila Haddad sent the grievor a letter informing her that she had not returned to work as requested and had not provided a medical certificate covering her absence from November 18, 2003. In that same letter, she was informed that she must respond by January 31, 2004 with the required medical certificate or advise Ms. Haddad of a date in which the required information would be provided.

6. On January 20, 2004, the grievor dropped off a grievance form with Ms. Sheila Haddad.

7. On January 26, 2004, Ms. Sheila Haddad sent the grievor a letter rescinding the letter sent on January 19, 2004. In this January 26, 2004 letter, the grievor was advised that she failed to comply with the January 12, 2004 request to return to work or provide a medical certificate and as a result her short-term sick benefits were discontinued effective January 19, 2004. The grievor was informed that she was on an unauthorized leave of absence without pay and that it was unacceptable. She was directed to return to work by February 2, 2004 and report to Mr. Patrick Tang. She was also notified that failure to report to work or provide the requested medical information by February 2, 2004 would result in her dismissal.

8. On January 29, 2004, Ms. Linda Miller telephoned the grievor and read the January 26, 2004 letter to her.

9. On February 2, 2004, the grievor dropped off a grievance form at Mr. Patrick Tang’s office at 9:00 a.m. and sent a letter to Ms. Sheila Haddad.

10. On March 18, 2004, Ms. Marnie Cooper sent the grievor a letter dismissing her effective that day. Ms. Cooper informed the grievor that directions given to her by Ms. Haddad were not followed and her actions constituted insubordination and a serious abdication of her responsibilities as an employee to attend work and follow the directions of the Employer.

Mr. Parry, for the Employer, and Mr. Brewin, for the Union, also put all of the documentation flowing from the above circumstances before me by consent.

It was the Union’s assertion that the grievor was harassed and discriminated against by differential treatment regarding work assignments. Ms. Smith felt that she was “targeted” by the Employer and as a result of the Employer’s actions, she became ill. She ought not to have been ordered to return to work until such time as her employment situation was properly redressed.

The Employer’s contention was that the grievor was neither harassed nor was she subjected to any discrimination. Further, she was properly discharged for insubordination and the grievances should be dismissed.

The Employer brought forward a motion at the commencement of its case. The Board was asked to decide, on the basis of the evidence that had been heard to that point whether there has been an irrevocable severing of the employment relationship. The Union contested that motion and prior to the issuing of a decision, the Employer requested the motion be held in abeyance. Mr. Parry began calling the Employer’s evidence.

During the submissions at our most recent day of hearing, the parties introduced a document entitled “Memorandum of Settlement” that had been the basis of their recent negotiations. That document was admitted into evidence upon consent.

It is not my intention to set out a complete account of the submissions of the parties heard earlier in our proceedings or at our most recent hearing day. It is sufficient to say that the Employer submitted that having heard all of the evidence to date this Board must be persuaded that there has been an irrevocable severing of the employment relationship. Once that conclusion is reached the appropriate remedy in this case would be to order into effect the terms of the Memorandum of Settlement that has been currently discussed by the parties.

The Union contended that the evidence heard to date underscores the veracity of the grievor’s allegations and accordingly the grievances should be upheld. However, in the event that I agree with the Employer that the employment relationship has been damaged beyond repair, the terms of the Memorandum of Settlement would be an appropriate remedy with a few alternations that are necessary given the passage of time since the negotiations.

At the request of the Union I invited the grievor to make whatever submissions she might like. She did so. I have taken that statement into account in arriving at my decision.

DECISION

After hearing the submissions of the parties as well as the comments of the grievor, I took the opportunity to thoroughly review all of the evidence in this matter, both viva voce and documentary. I have no intention of setting out that evidence because it would be of little utility to the parties given their invocation of Article 22.16.

After a consideration of all the evidence and submissions I have no hesitation reaching the inescapable conclusion that the employment relationship in this instance has been irreparably damaged. Given that finding and in accordance with the wishes of the parties, I must turn to the matter of remedy. I have had an opportunity to study the terms of the Memorandum of Settlement that has formed the basis of the recent settlement discussions between the parties. Generally speaking I am of the view that the Memorandum is a reasonable result and the appropriate remedy in these extraordinary circumstances. As suggested by the Union, a few alterations are necessary and they are as follows:

1. Paragraph 1(iv) should read, “Career transition and support (for post secondary school education up to and including 4 year program at university) which will commence no later than October of 2008”.
2. Paragraph 4 to read, “The Employer agrees to pay the amount referred to in paragraph 1 iv) to the grievor within 60 days of receipt of written confirmation of the grievor’s enrollment at a recognized post secondary school educational establishment. The grievor agrees to provide tuition and education expense receipts to the Employer upon request”.
3. The monies referred to in Paragraph 1 iv) will revert to a lump sum payment subject to applicable statutory deductions and union dues at the grievor’s request. This election must take place prior to September of 2008.

I so order. I note that there is a confidential provision in the Memorandum of Settlement and the Union acknowledged in its submissions that it had discussed the obligations of such an undertaking.

I would be remiss if I failed to say that I agree with the Union’s view that the agreement to change the process in the circumstances of this case was in the best interests of all concerned. In accordance with the wishes of the parties I remain seized with “any issues of interpretation and/or implementation”.

Dated in Toronto this 10^th day of October, 2006.