GSB#2015-2779

UNION#2015-0369-0034

IN THE MATTER OF AN ARBITRATION

Under

THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT

Before

THE GRIEVANCE SETTLEMENT BOARD

BETWEEN

Ontario Public Service Employees Union (Jenkins)

Union

• and -

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

Employer

BEFORE

Ian Anderson

Vice-Chair

FOR THE UNION

Gregg Gray Ontario Public Service Employees Union Grievance Officer

FOR THE EMPLOYER

David Marincola Treasury Board Secretariat Centre for Employee Relations Employee Relations Advisor

HEARING

April 11, 2017

Decision

1The Employer and the Union agreed to participate in the Expedited Mediation-Arbitration process in accordance with the negotiated protocol. The majority of the grievances are normally settled pursuant to that process. However, if a grievance remains unresolved the protocol provides that the Vice Chair of the Board, based on the evidence provided during the mediation session, will immediately decide the grievance. The decision will be without reasons, without precedent and prejudice and will be issued within fifteen working days of the mediation unless the parties agree otherwise.

2On April 11, 2017 the parties at the Central North Correctional Centre agreed to participate in the Expedited Mediation-Arbitration process in accordance with the negotiated protocol.

3The Grievor filed a grievance dated August 25, 2015 alleging a breach of the Workplace Discrimination and Harassment Policy, Articles 2.1 (Management Rights) and 3.1. In this case, because a human rights issue was raised, the parties asked that brief reasons be provided.

4The facts are not in dispute and may be briefly stated. The Grievor is a long service correctional officer. At various times, he has submitted medical notes from his doctor, Dr. Woods, to substantiate his absence for various periods of time due to medical reasons, all of which were accepted by the Employer. He provided a note from his doctor dated July 7, 2015 to substantiate absence for medical reasons for one week from July 6, 2015. By letter dated July 14, 2015 the Manger Compliance/Staff Services, Dave Manes, noted that the Grievor continued to be absent from work and requested a further note. The Grievor called Mr. Manes who indicated a note sent by facsimile transmission from the Grievor’s doctor’s office would suffice. The Grievor contacted Dr. Woods’ office and requested a note. Dr. Woods’ office sent a note dated July 16, 2015 by facsimile transmission to the attention of Mr. Manes which stated the Grievor was “off work for medical reasons pending medical assessment”.

5Following receipt of the note, Mr. Manes sent a letter dated July 16, 2015 to the Grievor acknowledging receipt of the facsimile transmission. The second paragraph of the letter states:

The note is unfortunately not an original document and has handwriting that is obviously different from the previous notes from Doctor Woods. As such this note is insufficient for the purposes of supporting Sick Leave benefits.

6The letter attached a Health Information Form and asked the Grievor to have his doctor complete it. Dr. Woods did so. Dr. Woods also attached a copy of the July 16, 2015 note. He annotated it to indicate that the text of the note had been written by his secretary, while the signature was his.

7The Grievor is of the view that the second paragraph of the July 16, 2015 accused him of fraud. In his view the allegation was defamatory and discriminatory contrary to the Human Rights Code.

8The second paragraph of the letter does not directly accuse the Grievor of fraud. Nor, in my view, is that inference warranted. Rather, the second paragraph makes a factually correct statement: the handwriting on the July 16, 2015 note was different from notes which had previously been provided by Dr. Woods. The statement is true and not defamatory. While it was not improper for Dr. Woods to have his secretary write out the note, there is no reason why Mr. Manes would have known that this is what had occurred. It was not improper in the circumstances for the Employer to request further and better medical information. There is no basis for concluding that the request was discriminatory.

9The grievance is denied.