GSB#2016-1257

UNION# 2016-0308-0009

IN THE MATTER OF AN ARBITRATION

Under

THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT

Before

THE GRIEVANCE SETTLEMENT BOARD

BETWEEN

Ontario Public Service Employees Union (Vahey)

Union

• and -

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

Employer

BEFORE

Daniel A. Harris

Arbitrator

FOR THE UNION

Andrew Mindszenthy Ontario Public Service Employees Union Grievance Officer

FOR THE EMPLOYER

Jonathan Rabinovitch Treasury Board Secretariat Legal Services Branch Counsel

TELECONFERENCE

July 11, 2017

DECISION

1In this matter the Union states that the Employer has breached the terms of a Memorandum of Settlement (MOS) entered into by the parties on May 10, 2017.

2The thrust of the MOS is that the grievor had been working a reduced work week of three days, with the other two days per week being paid under the Short Term Sickness Plan (STSP). That arrangement had been agreed to with local managers as an accommodation. When it came to the attention of senior management, it was determined that article 44, the Short Term Sickness Plan did not apply to the furtherance of such an accommodation pursuant to the Ontario Human Rights Code.

3As a result of a grievance filed on behalf of the grievor, the parties entered into the aforesaid MOS. Part of that agreement was that the employer would no longer approve use by the grievor of the STSP for this accommodation, presumably since it was agreed that such use of STSP was not a proper accommodation. The employer agreed to a grace period, but that usage was to stop effective July 7, 2017.

4As the cut-off date of July 7, 2017 approached, the grievor provided medical certificates purporting to indicate that she should be off work for five days per week, not the two she previously had been approved for. The medical note, dated June 20, 2017, reads in part as follows:

During our session on June 2, 2017, Ms. Vahey-Calberry noted she is no longer able to continue with a reduced work week, including two days paid through sick benefits. Her only option is to return to working a full work week, or continue with the same reduced work week, without two days of paid benefits. With the reduction in income, this would cause her financial strain, increasing her level of stress.

It is recommended that Ms. Vahey-Calberry continue with a reduced work week, including two days of sick benefits. This would allow her the time to continue treatment, as well as transitioning her back to her premorbid state. Exposure to public settings and engagement in day-to-day activities, including occupational tasks, are beneficial and instrumental in Ms. Vahey-Calberry’s recovery; however, engagement in ongoing therapy is also a necessary component to her recovery. In the event this option is not available, it is recommended that Ms. Vahey-Calberry remain off work for the duration of treatment. This is expected to require approximately three months of time, allowing for twelve to fifteen weekly sessions, commencing July 7, 2017 through to October 13, 2017.

5On the face of this note, it is clear that the grievor is not totally disabled from working. In fact, it is noted that engaging in occupational tasks is beneficial. Also, it states that if she cannot have two days off per week, she should have five.

6The purpose of the MOS, and the clear intention of the parties, was to bring to an end the use of STSP to fund the two days off she had been taking previously.

7Article 44 – Short Term Sickness Plan deals with employees who are unable “to attend to his or her duties due to sickness or injury”. There is no doubt here that the grievor suffers from a sickness. It is also apparent that the parties, in the MOS, recognized that the STSP did not apply to the grievor’s circumstances with respect to funding two days off per week for treatment. The treatment, according to the medical note above, was once per week. It seems that it was never the case that the grievor was unable to attend to her duties due to sickness. Indeed, her therapist is of the view that it would be beneficial for her to engage in occupational tasks.

8I am asked to assess whether there has been a breach of the MOS and this decision is limited to that jurisdiction. The MOS intended to bring to a halt the use of STSP benefits of two days off per week. There is no breach of the MOS in not permitting the expansion of the use of STSP benefits to five days per week when the medical note from the treating medical practitioner indicates that treatments are required once per week and the preferred course of treatment would include working.

9On the evidence before me, as this was a telephone conference call hearing, the employer was prepared to accommodate the grievor’s schedule. It was not prepared to expand the use of STSP benefits, which had been brought to a halt pursuant to the MOS.

10I find that there was no breach of the MOS.

Issued in Toronto this 20^th day of November, 2017.