GSB#2007-2354

UNION#2007-0440-0047

IN THE MATTER OF AN ARBITRATION

Under

THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT

Before

THE GRIEVANCE SETTLEMENT BOARD

BETWEEN

Ontario Public Service Employees Union

(Wilson)

Union

• and -

The Crown in Right of Ontario

(Ministry of Community Safety and Correctional Services)

Employer

BEFORE

Loretta Mikus

Vice-Chair

FOR THE UNION

Jennifer Fehr

Grievance Officer

Ontario Public Service Employees Union

FOR THE EMPLOYER

Brian Loewen

Counsel

Ministry of Government Services

HEARING

October 27, 2008.

Decision

1This award is being issued in accordance with Article 22.16 – MEDIATION/ ARBITRATION PROCEDURE. The parties are agreed that, due to matters arising from his personal situation and from his most recent transfer from St. Lawrence Treatment Centre to the Brockville Jail, the grievor was experiencing extreme stress and was away from work from December 6, 2006 until September 24, 2007. During that time he had several meetings with various representatives of the Employer and his Union Representatives with respect to his wish to return to the St. Lawrence Centre.

2No promises were given with respect to a job at the St. Lawrence Centre, however, and the grievor did not formally make a request for accommodation during this time. When it became clear that no position would be available for him, the grievor voiced his request for the St. Lawrence Centre as a need rather than a preference and advised the employer he could not return to the Brockville Jail for health reasons.

3The employer asked for a medical note to verify his condition and he provided a note dated January 10, 2007 from his Nurse Practitioner stating that the grievor had been off work since November 24, 2006 for medical reasons and would remain off work until his employment status had been resolved. The employer did not ask for any further documentation and the grievor remained off work until June, 2007 when his short term sick leave benefits expired. He called the employer on June 28, 2007, spoke to Brian Patterson and made a formal request for accommodation. A meeting was held on July 12th and the grievor gave the employer a note from his Nurse Practitioner dated July 5, 2007 stating that he was ready to return to work at the St. Lawrence site. The employer wanted a more detailed report and the July 5th report note was replaced by one dated July 30, 2007 clearly stating his restrictions. The employer sought and received another medical note dated September 10, 2007 affirming and expanding on the previous letter. Without conceding that it had an obligation to do so, the employer did consider the grievor’s request and he returned to work at the St. Lawrence Treatment Centre in late September but was paid as of September 10, 2007.

4Based on the facts before me and the submissions of the parties, I find the employer was not aware of the grievor’s request for accommodation until, at the earliest, June 28, 2007. The Employer was not formally given the medical information it needed to determine the need, if any, for accommodation and/or whether any restrictions that would apply. The Employer could not be found to have failed to accommodate the grievor before that date.

5For the reasons set out above the grievance is dismissed.