GSB# 2006-2723

UNION# 2006-0234-0383

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

Scott Andrews Grievance Officer Ontario Public Service Employees Union

FOR THE EMPLOYER

Greg Gledhill Staff Relations Officer Ministry of Community Safety and Correctional Services

HEARING

May 21, 2008.

Decision

The parties agreed to a Memorandum of Settlement dated December 5, 2007. The grievor alleges that the employer has not properly implemented the MOS by failing to adjust his attendance target above the level of the Ministry threshold of 11.5 days per year for the purposes of the Attendance Support Program (ASP). The grievor has averaged just over 31 days absence per year over the last nine years.

The MOS called for further medical information to be provided by the grievor’s doctor, Dr. Hamer, and the IME Doctor, Dr. Hollinger.

Dr. Hamer agreed with Dr. Hollinger’s observation that the grievor’s treatment was appropriate and appears to be succeeding. Dr. Hamer made the following comments relevant to the grievor’s attendance threshold:

“I would therefore expect that Mr. Dakroub should be able to manage on or below the average number of sick days of his cohort at work.”

The employer takes the position that a personal ASP attendance threshold must be supported by medical evidence, and has concluded that there is no such medical evidence justifying a higher threshold for the grievor. The union argues that the medical reports, as well as the grievor’s attendance history, support a higher threshold.

Decision

After reviewing the submissions of the parties and the medical reports, it is my conclusion that employer has not breached the Memorandum of Settlement. I do not agree that the comments from either doctor support a higher threshold. Taken together, I read the comments from both doctors to mean that that there is no identified medical reason why the grievor should not be capable of achieving the same attendance thresholds expected of other employees. The fact that the grievor has been absent an average of 31 days per year since 1999 is not necessarily evidence of medical need. In my view, there is no medical evidence supporting a higher personal ASP threshold at this time. The grievance is dismissed.

Dated at Toronto, this 3^rd day of July, 2008.