GSB# 2006-1916, 2006-1918
UNION# 2006-0310-0015, 2006-0310-0017
IN THE MATTER OF AN ARBITRATION
Under
THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT
Before
THE GRIEVANCE SETTLEMENT BOARD
BETWEEN
Ontario Public Service Employees Union (Magee)
Union
- and -
The Crown in Right of Ontario (Ministry of Natural Resources)
Employer
BEFORE
Nimal Dissanayake
Vice-Chair
FOR THE UNION
Gavin Leeb, Barrister and Solicitor (September 27 – November 2, 2007) John Brewin, Barrister and Solicitor Adrienne Liang, Student-at-Law Ryder Wright Blair & Holmes LLP Barristers and Solicitors (March and April, 2008)
FOR THE EMPLOYER
George Parris, Counsel Susan Munn, Student-at-Law Ministry of Government and Consumer Services
HEARING
September 27 & 28, October 12 & 26, November 1& 2, 2007; March 6, April 11 & 14, 2008.
Decision
I am seized with a number of grievances filed by Mr. Ian Magee, (“grievor”) who is employed as a Conservation Officer (“CO”) with the employer. The parties agreed that I should proceed initially with files 2006-1916 and 2006-1918, and remain seized with the others. These two files relate to events of July 9, 2006 when the grievor allegedly stored his employer issued firearm, badge duty belt and in an unlocked vehicle (hereinafter referred to as “the Firearm Incident”). File 2006-1916 grieves a 20 day suspension without pay he received for that incident. File 2006-1918 grieves the employer’s decision, upon his return from the suspension, to restrict the grievor to clerical duties, and to deny him his firearm, badge and duty belt. The employer has taken the position that the grievor will not be restored to full duties until his mental fitness to perform those duties is confirmed through an independent medical examination (“IME”) conducted by a medical practitioner designated by the employer. The grievor has refused to participate in an IME and remains on clerical duties pending the resolution of his grievance.
The parties filed the following agreement:
The issue that the Board is now being asked to decide is whether the Employer was entitled in the circumstances to remove the Grievor from his full duties as a conservation officer and put him on office duties, duties that did not require him to carry a firearm and a badge.
The evidence before the Board in this part of the proceeding will be entered as evidence in subsequent proceedings on the matters before the Board relating to the Grievor.
The fact that the Employer led its evidence first was not a concession that the onus lies on the Employer on the issue before the Board in this part of the case. The question of onus will be addressed by both parties in argument. Neither party will object that the other party has in any way conceded its position on onus. The Employer will argue that onus lies with the Union. The Union will argue that it lies with the Employer.
The evidence led so far is to be applied to the Board’s consideration of the issue described in Paragraph 1. Any findings of fact by the Board in respect of the IME issue will be for purposes of the determination of that issue only. Either party may subsequently lead contradictory evidence and seek to persuade the Board to make