GSB#2008-1892

UNION#2008-0368-0088

IN THE MATTER OF AN ARBITRATION

Under

THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT

Before

THE GRIEVANCE SETTLEMENT BOARD

BETWEEN

Ontario Public Service Employees Union (Moloney)

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, Frank Inglis Grievance Officers Ontario Public Service Employees Union

FOR THE EMPLOYER

Gary Wylie, Laura McCready, Bart Nowak Staff Relations Officers Ministry of Community Safety and Correctional Services

HEARING

March 4, 2010.

Decision

1The parties have agreed to an Expedited Mediation-Arbitration Protocol. It is not necessary to reproduce the entire Protocol here. Suffice it to say that the parties have agreed to a “True Mediation-Arbitration” process, wherein each provides the Vice-Chair with submissions, which include the facts and authorities each relies upon. This decision is issued in accordance with the Protocol and with Article 22.16 of the collective agreement, and is without prejudice or precedent.

2In early 2008 the grievor made a request for a three-week leave of absence to be taken in July and August 2008 in order to perform relief work in Mali as part of a program organized by Hands Across the Nations. She also requested vacation time to attend a three-day training session related to the Mali work that was to be held in June 2008. The grievor alleges that the employer failed to respond to her requests for leave in a timely fashion, and that the manner in which her requests were handled caused her considerable stress and eventually caused her to be absent from work for medical reasons. She also alleges that the employer’s actions after she commenced her medical leave were improper.

3The employer’s response to the grievance is that considerable efforts were made to assist the grievor in obtaining the time off, and various questions were raised about the grievor’s motivations, and her use of sick leave around the time in question.

4The issues involved in this matter raise questions of credibility, context, and motivation on both sides. The evidence presented so far is insufficient to enable a True Mediation-Arbitration decision, and the issues at play are matters I am not prepared to rule on after having reviewed the evidence in the informal process of the mediation-arbitration session. I have considered whether this matter should be referred to an Expedited Arbitration hearing, in accordance with Paragraph 7.3 of the Local Mediation-Arbitration Protocol. However, it is my view that the only way to get to the bottom of the grievance is to have the two main protagonists, the grievor and her manager, testify in full and be subject to cross-examination. The grievor’s allegations and the employer’s response give rise to issues of credibility and motivation too complex be adequately canvassed in the Expedited Arbitration process contemplated by the Protocol. For that reason, it is my view that this matter should be referred to Joint File Review for a full hearing, in accordance with Paragraph 8.11 of the Protocol. I am not seized with this matter.