GSB#2010-3090

UNION#2011-0530-0006

IN THE MATTER OF AN ARBITRATION

Under

THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT

Before

THE GRIEVANCE SETTLEMENT BOARD

BETWEEN

Ontario Public Service Employees Union (DaSilva)

Union

• and -

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

Employer

BEFORE

Felicity D. Briggs

Vice-Chair

FOR THE UNION

Laura Josephson Ontario Public Service Employees Union Grievance Officer

FOR THE EMPLOYER

Victoria Fichtenbaum Ministry of Government Services Centre for Employee Relations Employee Relations Advisor

HEARING

January 19, 2012.

Decision

1The Employer and the Union at the Toronto Jail agreed to participate in the Expedited Mediation-Arbitration process in accordance with the negotiated Protocol. Most of the grievances were settled through that process. However, a few remained unresolved and therefore require a decision from this Board. The Protocol provides that decisions will be issued within a relatively short period of time after the actual mediation sessions and will be without reasons. Further, the decision is to be without prejudice and precedent.

2Ms. Diana DaSilva is a Correctional Officer who filed a grievance alleging that the Employer failed to meets its obligation to accommodate her for reasons of family status. By way of remedy the grievor requested damages and recompense for monies for “top up” of her sick leave. She was absent from the workplace for a period as the result of stress caused by the Employer’s failure to accommodate her family status needs.

3There was much discussion between the parties about what information was presented to the Employer regarding Ms. DaSilva’s request for accommodation. By her own admission, the grievor did not make the Employer aware of all the reasons she required an accommodation in the first place or an extension thereto. In this regard, Ms. DaSilva failed in her obligations in the accommodation process and this failure made it difficult, if not impossible, for the Employer to determine that this was a need for anything other than for a short period of time to find child care arrangements. Indeed, during a discussion with both the grievor and the Ms. Crocker for the Employer held during the med/arb session, it was stated that all the Employer was told that Ms. DaSilva had not yet managed to find child care.

4My discussion with both parties also dealt with the alleged Employer failure to follow its own policy regarding accommodation. Specifically, it was asserted by the grievor that no meeting was held to review her request for an extension to her three month accommodation. Ms. Crocker, for the Employer denied that allegation citing a discussion held when where the grievor dropped by her office. At that time the grievor again referred to her inability to find suitable child care. The grievor denied this “meeting”.

5In my view, it is unnecessary to determine whether there was such a meeting. If there was a discussion as set out by Ms. Crocker, and it is entirely possible that the grievor would forget so casual a conversation, that communication did fulfill the Employer’s obligations under its own policy at page 5.

6Accordingly, I find neither the Employer nor the grievor fully satisfied their obligations in the accommodation process according to the Employer’s policy.

7Having said that, had the Employer held a proper review meeting, with the attendance of a Union representative, more information might have been requested and/or provided.

8I appreciate that the Employer made efforts in this matter but those efforts were insufficient due to the lack of a formal review meeting. Accordingly, I order the grievor to be paid $1,000 damages.

9I remain seized.