GSB#2010-1961; 2010-1962; 2010-1963; 2010-1964; 2010-1965; 2010-1966; 2010-1967; 2010-1968; 2010-1969

UNION#2010-0234-0242; 2010-0234-0243; 2010-0234-0244; 2010-0234-0245; 2010-0234-0246; 2010-0234-0247; 2010-0234-0248; 2010-0234-0249; 2010-0234-0250

IN THE MATTER OF AN ARBITRATION

Under

THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT

Before

THE GRIEVANCE SETTLEMENT BOARD

BETWEEN

Ontario Public Service Employees Union (Kujtan et al)

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

Jackie Crawford Ontario Public Service Employees Union Grievance Officer

FOR THE EMPLOYER

Bart Nowak Ministry of Government Services Employee Relations Advisor

HEARING

June 5, 2013

Decision

1The Employer and the Union at the Maplehurst Correctional Centre agreed to participate in the Expedited Mediation-Arbitration process in accordance with the negotiated Protocol. Some of the grievances were settled through that process. However, a few grievances 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.

2A number of grievances were filed by Correctional Officers regarding the Employer’s failure to pay the attendance bonus on hours they were absent from the workplace due to STSP, LTIP and WSIB.

3It was the Employer’s view that this matter has already been decided by the Board and the grievances must be dismissed. The Union urged that it would be discriminatory to disallow time absent from the workplace due to employees’ disability.

4After careful consideration of the facts and submissions made in this case, I am of the view that the Employer’s view is correct. Indeed, this precise matter was put before Vice Chair Abramsky in Re MCSCS & OPSEU (Union) GSB#2010-0405. In that case, she said, at paragraph 49:

Finally, the exclusion of time away from work on leaves that might be based on a disability (potentially STSP, LTIP, WSIB) or a protected basis (maternity leave) is not a violation of the Ontario Human Rights Code. It is well-established in the judicial and arbitral jurisprudence that a “work driven” benefit may be based on hours worked, and an employer does not discriminate against an employee when it withholds a work-driven benefit from an employee who is absent due to maternity, paternity, illness or another protected category. In Re Ontario Nurses’ Association and Orillia Soldiers’ Memorial Hospital, Source decision, [1999], 42 O.R. (3d) 692 (Ont. CA), at par. 58, it was recognized that “[r]equiring work in exchange for compensation is a reasonable and bona fide requirement.” …..

5Accordingly, the grievances are dismissed