GSB#2008-3858, 2008-3859

UNION#2009-0521-0013, 2009-0521-0014

IN THE MATTER OF AN ARBITRATION

Under

THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT

Before

THE GRIEVANCE SETTLEMENT BOARD

BETWEEN

Ontario Public Service Employees Union (White)

Union

• and -

The Crown in Right of Ontario (Ministry of Community Safety and Correctional Services)

Employer

BEFORE

Barry Stephens

Vice-Chair

FOR THE UNION

Tim Mulhall Ontario Public Service Employees Union Grievance Officer

FOR THE EMPLOYER

Sia Romanidis Ministry of Government Services Employee Relations Division Employee Relations Advisor

CONFERENCE CALL

April 20, 2011.

Decision

1This decision arises from a mediated settlement that was reached during a “medarb” session on April 1, 2009, and, it is agreed that it is issued in accordance with Article 22.16 of the collective agreement, and is without prejudice or precedent.

2The union alleges that the employer has breached the agreement. The agreement contains the following provision:

“The employer agrees to work with the grievor and provide him a schedule of alternating weekends off to assist with child care issues.”

3An employer representative sent me an email in April 2010, on which the union was not copied, raising an issue with respect to whether the above undertaking constituted an “ongoing obligation.” I responded at the time that the employer should raise the matter directly with the union and, if the parties could not agree, they could bring it back to me for a ruling. I heard nothing further until the instant case was scheduled.

4Some time in November 2010, the employer met with the grievor and notified him that it was the employer’s view that he had not assisted or participated in the accommodation process by seeking other methods for dealing with his child care needs. He was given until March 1, 2011 to find such alternative methods. As far as I am aware, there were no further meetings with the grievor on this issue until he received an email from the employer, dated March 1, 2011, advising that the employer had attempted to get a ruling on the “time frame” without success, and also advising the grievor that the arrangement whereby he worked alternate weekends was being terminated.

No Request for a Prior Ruling

5I wish to make it clear it is not the case that the employer made an attempt to secure a ruling with respect to any “time frame” that might arise from the April 2009 agreement. The email exchange in April 2010 described above was not copied to the union, and, as such, it could not be treated as a motion or formal request for a ruling with respect to the case. It was a request for comment on the extent to which the 2009 agreement created an “ongoing obligation.” I responded by email to the employer with clear and proper direction, i.e. that it would not be proper for me to comment, that the employer should contact the union first and, if the matter could not be resolved directly, the parties could bring it back to me for a ruling. Rather than doing that, the employer appears to have taken unilateral action to terminate the memorandum of settlement.

Employer Submissions

6The employer argues that it would be unreasonable for the grievor to be accommodated “permanently”, and that accommodation is a cooperative process requiring regular review. The employer submits that family accommodation, in particular, must be viewed as a temporary measure, and that there is an onus on the employee to takes steps to put alternative child care supports in place. The employer asserts that two years was sufficient, and the employee has simply failed to take any steps to alleviate or eliminate the need for accommodation. The employer also relies on the fact that Mimico is an institution that has heavy workload demand on weekends. I was also advised that the employer had no direct evidence to provide regarding any change of circumstances related to the accommodation.

Union Submissions

7The union responds that the employer is attempting to re-litigate the grievance. The settlement is clear. The employer is required to provide the grievor “with a schedule of alternating weekends off.” The employer has not offered any evidence of any major change in the grievor’s circumstances. The grievor’s child is now seven years old, and the childcare needs are ongoing. The union argues that the employer is raising arguments that should have been part of the original discussions, and that could have been reflected in the language of the agreement. The fact that the employer did not raise or insist on a time limit for the accommodation does not change the fact that the parties reached a settlement of the grievance, and that settlement is enforceable. The union seeks a ruling that the agreement should be reinstated and that the grievor be compensated for any unpaid leaves of absence he has taken to cover his child care needs since the cancellation of the agreement.

Decision

8The agreement between the parties is clear to the extent that the employer agreed to provide the grievor with alternating weekends off. There was no explicit time limit associated with that undertaking. In exchange, the grievor agreed to withdraw his grievance and agreed to release the employer from any other legal action associated with his claim for accommodation, including under the Human Rights Code.

9In essence, the employer seeks a ruling that the agreement contained an implicit time limit. This time limit arises not from the language of the agreement, but from the grievor’s obligation in a family accommodation situation, which the employer describes as the obligation to treat the accommodation as temporary and to take steps to render the accommodation unnecessary or less necessary, and to do so within a reasonable time frame. In this instance, the employer asserts that two years is a reasonable time frame. None of these principles are reflected in the agreement. All that can be stated is that the employer’s part of the written agreement is tied to the existence of the grievor’s “child care issues.” I have no evidence that those childcare issues have changed.

10The employer has a right to make the argument that the accommodation set out in this “medarb” agreement is subject to periodic review and that, where there is a change in circumstances, or the availability of appropriate options, a change in the accommodation may be appropriate. Given that there is an agreement between the parties arising from the settlement of the grievance, however, it is my view that the proper way to address such an issue is for the employer to seek a prior ruling from the vice-chair who is seized with the matter, not to unilaterally abrogate the agreement.

11Moreover, as of this point in time, there is no evidence before me either of a change in circumstance or of reasonable alternative methods of accommodating the grievor’s childcare issues. Indeed, apart from the little that has been set out in this award, I have no evidence with respect to the grievor’s circumstances. As stated above, there is a legal issue with respect to the ongoing nature of the April 2009 agreement. Even were I to accept the employer’s position on that issue, I could not find that the grievor’s accommodation should be terminated based solely on the passage of time.

12I order that the employer is to reinstate the terms of the agreement providing the grievor with alternating weekends off, in accordance with the agreement of April 1, 2009. The grievor is also entitled to compensation if it can be demonstrated that he was required to take leave without pay to cover childcare responsibilities as a result of the employer’s cancellation of the accommodation. I remain seized to deal with any issues arising.