GSB#2006-1689, 2006-1915, 2006-1916, 2006-1917, 2006-1918, 2006-2563, 2006-2564, 2007-0912, 2007-0913, 2007-1425, 2008-0278, 2008-0279, 2008-2649

UNION#2006-0310-0013, 2006-0310-0014, 2006-0310-0015, 2006-0310-0016, 2006-0310-0017, 2006-0310-0021, 2006-0310-0022, 2007-0310-0027, 2007-0310-0028, 2007-0310-0030,

2008-0310-0001, 2008-0310-0002, 2008-0310-0013

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

John Brewin Ryder Wright Blair and Holmes LLP Barristers and Solicitors

FOR THE EMPLOYER

George Parris Ministry of Government Services Counsel

CONFERENCE CALL

November 27, 2009.

Decision

1These are written reasons for a ruling orally rendered following a hearing by conference call, issued at the request of union.

2I was seized with a number of grievances filed by Mr. Ian Magee (“grievor”), who is employed as a Conservation Officer (“CO”). Two of the grievances related to a requirement by the employer that the grievor undergo an independent medical examination (“IME”) for a psychiatric assessment. The grievor refused to submit to the IME. The employer responded by confining him to office/administration duties. The employer took the position that the grievor would not be allowed to engage in the enforcement duties, which were a part of the CO job description. This resulted in grievances by the grievor which came before me.

3Following a lengthy hearing, I issued my decision on May 20, 2008. In summary, I upheld the grievances, concluding that the employer did not meet the conditions of article 44.9 to be able to require that the grievor submit to an IME. By way of remedy, I made the following order: “The employer is therefore directed to cease its requirement that the grievor submits to an IME, and to forthwith restore him to full duties of a CO. I remain seized of all outstanding matters that arise from these grievances.”

4The parties were in dispute as to whether or not the employer had complied with that Board order. That dispute is scheduled for hearing before me in March of 2010.

5In the meantime, union counsel requested that a hearing be convened to deal with an issue that had arisen. The employer took the position that I had no jurisdiction to deal with this issue. Following the hearing by conference call, I orally ruled upholding the employer’s objection to jurisdiction.

6The relevant facts are as follows. At least since May 2009 the grievor was managed by Mr. Jeff Columbus. The instant dispute resulted from a direction by Mr. Columbus that the grievor have his physician provide answers to a number of questions related to the grievor’s health. Mr. Columbus wrote in the letter to the physician, that since May of 2009 he had made a number of observations about the grievor’s work related behaviour, and that he misled to ascertain whether that behaviour is health related, so that the grievor can be provided with the necessary assistance and accommodation in accordance with employer policy. The letter included questions as to whether, in the physician’s opinion, the grievor is fit to carry out the full duties of a CO, including enforcement duties, and whether an examination by a psychiatric specialist would be beneficial.

7Union counsel submitted that I should direct that the letter in question be withdrawn by the employer. He argued that given my earlier order that the grievor be returned to full duties forthwith, and my continuing jurisdiction as to whether that order had been complied with, the employer is not entitled to unilaterally seek further medical information as to the grievor’s fitness to perform full CO duties. In his view, that may be done only with the union’s agreement, or with the sanction of the Board.

8Employer counsel disagreed. He submitted that my decision dated May 20, 2008 was rendered, based on facts within a particular window of time preceding that hearing. He submitted that the order made in that decision does not have the effect of depriving the employer of its right to manage the grievor post-decision. He submitted that the retention of jurisdiction in the May 2008 decision, does not entitle me to supervise the future management of the grievor on a continuing basis.

9I ruled in the favour of the employer. I agree that I had no continuing jurisdiction over management decisions affecting the grievor, except as it relates to the compliance with my earlier order.

10The dispute as to the most recent request for medical information post dates my decision. Most significantly, that request is made by a different manager based on alleged performance issues that occurred since May of 2009. My order was to the effect that the employer had no entitlement to require an IME on the basis of the grievor’s behaviour the employer had relied on at the time. The order did not have the effect of prohibiting the employer from seeking medical information in the future based on future events.

11Needless to say, in imposing any requirements on the grievor, the employer must not act in contravention of the grievor’s collective agreement rights. However, if any employer action is seen by the union as contravention, it is a new dispute, which falls outside the jurisdiction I had retained. The employer has purported to respond to events which allegedly occurred from 2009 by exercising its right to manage. I appreciate that union counsel expressed scepticism about the validity of the alleged behaviour attributed to the grievor. Whether the grievor did engage in the alleged behaviour since May 2009, and if so, whether it entitles the employer to the medical information it sought, are legitimate disputes. However, they are not within the jurisdiction I had retained.