Ontario Public Service Employees Union (Skeene) v. The Crown in Right of Ontario (Ministry of Attorney General), 2015 CanLII 32593

GSB#2014-0731

UNION#2014-0526-0036

IN THE MATTER OF AN ARBITRATION

Under

THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT

Before

THE GRIEVANCE SETTLEMENT BOARD

BETWEEN

Ontario Public Service Employees Union (Skeene)

Union

• and -

The Crown in Right of Ontario (Ministry of Attorney General)

Employer

BEFORE

Michael V. Watters

Vice-Chair

FOR THE UNION

Seung Chi Ontario Public Service Employees Union Grievance Officer

FOR THE EMPLOYER

Benjamin Parry Treasury Board Secretariat Legal Services Branch Counsel

HEARING

March 31, 2015

DECISION

1This proceeding was conducted pursuant to the expedited procedure set out in article 22.16 of the collective agreement. In the absence of agreement under article 22.16.7, this Decision shall have no precedential value. I note, for the record, the parties agreement to extend the time for the issuance of the Decision.

2At the outset, the Union’s representative asked that the hearing be adjourned pending the resolution of a Policy Grievance scheduled to be heard by the Grievance Settlement Board in May, 2015. Counsel for the Employer opposed the request for an adjournment. After hearing submissions, this Vice-Chair denied the requested adjournment as I considered it preferable to complete the hearing in an expeditious fashion, as contemplated by article 22.16.

3No viva voce evidence was presented in this case. Instead, the parties provided documentation relevant to their respective positions. Additionally, this Vice-Chair met separately with each of the parties and received submissions with respect to how the grievance should be resolved. The parties agreed that the Decision in this matter should be issued without reasons.

4The grievor is an Inmate Appeal Case Manager working out of the Court of Appeal For Ontario. As an employee of the Ministry of the Attorney General, she has been subject to the Attendance Support and Management Program (ASMP) since 2013. The Program was earlier introduced in the Correctional Bargaining Unit in 2009.

5The ASMP has four (4) levels that an employee may move through. Each level is triggered if an employee exceeds four (4) occurrences within a twelve (12) month period or if any occurrence or combination of occurrences exceed seven (7) days of absence in a twelve (12) month period. Under the ASMP, an occurrence is defined as any sick time requested off work. A single occurrence can be for either a small or large period of time. By way of example, an occurrence can be two (2) hours taken at the end of a shift due to a headache or three (3) weeks missed due to a broken leg.

6In this instance, the grievor’s history of sick time shows that she missed 3.25 hours on December 5, 2013, 3.5 hours on December 13, 2013 and 2 hours on February 18, 2014. These were treated as separate occurrences for purposes of the ASMP. The effect of this was to accelerate the grievor’s movement into Levels One (1) and Two (2) of the Program.

7It was the Union’s submission that the hours missed as sick time on December 5 and December 13, 2013 and on February 18, 2014 should not have been treated as separate and distinct occurrences. From the Union’s perspective, such treatment resulted in the grievor proceeding through the Levels at too rapid a pace. Its representative argued that such result was unreasonable and unfair. He further submitted that the Employer adopted a blanket approach to the days in question and did not exercise any discretion when applying the ASMP to the grievor’s circumstances.

8In response, counsel for the Employer submitted that, in effect, the instant grievance is a challenge to the thresholds established under the ASMP. On his analysis, the validity of the thresholds has been previously recognized by the decision in Benko et al., GSB No. 2009-2821 (Keller) and by a Memorandum of Settlement of Union Policy Grievance No. 2009-099-074 (GSB No. 2009-1643). Lastly, counsel argued that the three (3) days in issue were properly considered to be separate occurrences under the ASMP.

9On the Union’s reading, the decision in Benko is distinguishable as it did not address the definition of occurrence and was decided in the Correctional context.

10This Vice-Chair has reviewed all of the documents filed and has considered the submissions of the parties. After so doing, I have not been persuaded that the Employer breached the collective agreement in its application of the ASMP to the circumstances of the grievor’s case.

11The grievance is, accordingly, dismissed.