GSB#2009-2076

UNION#2009-0368-0149

IN THE MATTER OF AN ARBITRATION

Under

THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT

Before

THE GRIEVANCE SETTLEMENT BOARD

BETWEEN

Ontario Public Service Employees Union (Butsch)

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.

2The grievor alleges that the employer failed to take appropriate steps to assist her when she was subjected to improper treatment in the workplace as a result of her decision to follow Ministry guidelines with respect to the division of duties between RN’S and RPN’S. The grievor further alleges that the conflict around the issue created stress for her, and she was required to take sick leave for a period of approximately four months. The employer takes the position that there has been no breach of the collective agreement.

3The issues involved in this matter raise questions of credibility, conflict of evidence, and motivation on both sides. The evidence presented so far is insufficient to enable a True Mediation-Arbitration decision, and I am not prepared to rule on the matter 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, in particular the motivation to be attributed to the various actors, are too complex to 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.