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IN THE MATTER OF AN ARBITRATION
Under
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THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT
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Before
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THE GRIEVANCE SETTLEMENT BOARD
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BETWEEN
Ontario Public Service Employees Union
(Pacheco)
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## Union
- and -
The Crown in Right of Ontario
(Ministry of Community Safety and Correctional Services)
Employer
BEFORE
Ken Petryshen
Arbitrator
FOR THE UNION
John Brewin
Ryder Wright Blair & Holmes LLP
Counsel
FOR THE EMPLOYER
Suneel Bahal
Treasury Board Secretariat
Legal Services Branch
Counsel
TELECONFERENCE
September 5, 2017
## DECISION
[1] During a conference call starting at 10:00 a.m. on September 5, 2017, I entertained a motion from the Employer requesting that the hearing dates of September 6, 7, 12, 13 and 18, 2017, be adjourned. The Union opposed the adjournment request. I had received some documentation from the Union prior to the conference call. After the completion of the conference call, Union counsel provided me with a copy by email of a medical certificate dated September 5, 2017, prepared by Mr. Pacheco’s physician. There then followed further email submissions by counsel with respect to what impact the September 5, 2017 medical certificate should have on the Employer’s adjournment request. I will briefly set out the relevant factual context for the issues before me and will then briefly address those issues given that a quick response is required.
[2] At this stage of the proceedings, I have before me four discipline grievances filed by Mr. J. Pacheco. Mr. Pacheco grieved a 10-day suspension issued on February 6, 2015, a 15-day suspension issued on May 25, 2015, a 20-day suspension issued on December 7, 2015, and he grieved the March 2, 2016 termination of his employment. Some hearing days have been held, but many more have been scheduled to just hear the discipline grievances. After further attempts to mediate the grievances on June 22 and 23, 2017, were unsuccessful, the Employer elected to return Mr. Pacheco to the Bailiff Department. It reinstated him without prejudice to its position on the termination grievance that a suspension should be substituted for the discharge and that Mr. Pacheco was not entitled to be compensated for his losses.
[3] The most recent hearing date for these matters was held on August 22, 2017, during which counsel made further submissions on some outstanding production issues. Mr. Pacheco had been engaged in certain training up until August 22, 2017, so that he would be in a position to resume his normal bailiff duties. He was scheduled to start performing those normal duties on August 23, 2017. On August 23, 2017, Mr. Pacheco presented the Employer with the following medical certificate:
1) To whom this may concern,
This patient is ill and unable to work related to severe work-related stress. He is under medical supervision. He will not return to work before next evaluation in 4 weeks’ time. Thank you.
Dr. Eisen
By letter dated August 28, 2017, the Employer requested M. Pacheco to provide it with a sufficient medical certificate which meets certain criteria by no later than Friday, September 8, 2017.
[4] The Employer’s request to adjourn the September hearing dates arises from the medical certificate dated August 23, 2017, provided by Mr. Pacheco. The Employer took the position that if Mr. Pacheco could not attend work because of “severe work-related stress” then he would not be in a position to endure the stress of a GSB hearing where work related issues were being addressed. In the alternative, the Employer requested me to direct Mr. Pacheco to produce a doctor’s certificate explaining why he could attend GSB hearings, but not perform his duties as a bailiff. The Union simply took the position that whether Mr. Pacheco was medically able to attend the GSB hearings was a matter for Mr. Pacheco and his physician and not an issue for the Employer.
[5] Soon after the completion of the conference call, Union counsel provided me with the following medical certificate dated September 5, 2017, from Mr. Pacheco’s physician:
To Whom it may concern:
I am John Pacheco’s primary physician and assessed him on August 23, 2017. He is unable to attend to his official duties because of illness or injury.
However, John is capable of attending his Grievance Settlement Board appearances. His duties are workplace specific.
He will be out of the workplace until at least September 26, 2017 at which point he will be re-assessed by me.
[6] On the basis of the September 5, 2017 medical certificate, the Union asserts that there should no longer be any issue about whether Mr. Pacheco is in a position to attend the September hearing dates at the GSB. The Employer agreed to admit the September 5, 2017 medical certificate into evidence, but took the position that the certificate was insufficient in a number of respects.
[7] After reviewing the relevant material and after considering the submissions from counsel relating to the Employer’s adjournment request, I have not been convinced that there is a justifiable basis for adjourning the September 2017 hearing dates. Although the Employer has some concerns about the sufficiency of the September 5, 2017 medical certificate, I am of the view that this certificate provides an adequate basis for concluding that Mr. Pacheco is at least medically fit to attend the September hearings at the GSB. Therefore, the Employer’s motion for an adjournment is dismissed.
[8] Where appropriate, it is open to the Employer to request Mr. Pacheco to provide sufficient medical information to justify an absence from work. It is unclear at this stage how this situation will play out and whether it may lead to further litigation. I see any further developments relating to whether Mr. Pacheco can justify his absence from work and whether he can attend GSB hearings to be matters separate from the hearings dealing with his discipline grievances.
[9] During the conference call, Union counsel suggested that tomorrow’s hearing not commence until 1:30 p.m. so that the Union would be in a better position to satisfy my production order of August 24, 2017. In the circumstance, this suggestion makes considerable sense. Accordingly, the hearing on September 6, 2017, will commence at 1:30 p.m.
Dated at Toronto, Ontario this 5th day of September 2017.
## Appendix A
| GSB Number | OPSEU File Number |
| :--- | :--- |
| 2012-0727 | 2012-0234-0066 |
| 2013-3214 | 2013-0234-0359 |
| 2014-0350 | 2014-0234-0061 |
| 2014-3305 | 2014-0234-0458 |
| 2014-3846 | 2014-0234-0508 |
| 2014-4854 | 2015-0234-0030 |
| 2015-0390 | 2015-0
minicounsel