GSB# 2015-0557

UNION# 2015-0368-0176

IN THE MATTER OF AN ARBITRATION

Under

THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT

Before

THE GRIEVANCE SETTLEMENT BOARD

BETWEEN

Ontario Public Service Employees Union (Kolmann)

Union

• and -

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

Employer

BEFORE

Randi H. Abramsky

Arbitrator

FOR THE UNION

Richard Blair Ryder Wright Blair & Holmes LLP Counsel

FOR THE EMPLOYER

Peter Dailleboust Treasury Board Secretariat Legal Services Branch Senior Counsel

HEARING

September 18, 2018

Decision

1This matter, by agreement of the parties, is proceeding under Article 22.16.7, and therefore has no precedential value beyond the instant case.

2The parties proceeded through documents and submissions only. No viva voce evidence was called.

3At issue is whether the Grievor is entitled to short-term sickness benefits under Article 44.1.2 for medical treatments she receives due to a disability. Approximately one time per month, she travels from Lindsay to Markham, Ontario, to receive an injection to control her symptoms. She normally works, through an agreed upon accommodated schedule, from 6:00 a.m. to 2:00 p.m., Monday to Friday. The distance from Lindsay to Markham is approximately 90 kilometres.

4Article 44.1.2 states that “an employee who is unable to attend to his or her duties due to sickness or injury is entitled to leave of absence with pay as follows…” It is undisputed that the Grievor is otherwise able to attend to her duties on the dates of her treatment. It is also undisputed, for the purposes of this hearing, that the Grievor requires those treatments for her medical condition.

5What is unclear, however, is why the treatment is required during the time she is scheduled to work. The treatment involves an injection. Even assuming that the treatment is only available in Markham, Monday to Friday, during the hours of 9 a.m. to 5 p.m., and there needs to be time for an assessment after the injection to ensure there is no reaction (and there was no evidence as to any of this), it would appear that the treatment could be done after work. The Grievor is finished with work by 2:00 p.m. She could get to Markham by 4:00 p.m. (or 4:30 at the latest) and still have the treatment prior to the normal close of business.

6The situation in Re North Bay Regional Health Centre and ONA (Grievance of C.L.), 2014 CanLII 13512 (Kaplan), cited by the Union, is quite different. In that case, as stated at p. 4, the grievor required treatment through an IV which took “several hours to administer” and the “clinic that administers the treatments is only open during regular office hours Monday thru Friday” and “does not provide service in the evenings or on weekends.” The grievor, due to an accommodation, only worked day shifts, Monday to Friday. Consequently, under the facts, there was no possibility that the grievor could obtain her treatment outside of her regular work day.

7Further, that decision found that the Employer’s denial of sick leave benefits did not violate the collective agreement. Arbitrator Kaplan determined, at p. 10, that “[t]he denial of the sick pay claim was in compliance with the collective agreement…”. Instead, he found that the Ontario Human Rights Code was violated because “the grievor was discriminated against through the application of an arbitrary three-week rule…”. Under that rule, had her treatments been done every three weeks it would have resulted in sick pay, but because they occurred every six weeks, they were a “new” incident and were not covered after the sixth one. That rule, he found, “discriminates against the grievor by treating her differently than other employees with a disability.” He ordered the parties to modify the three-week rule and accommodate the grievor.

8In this case, the Union does not argue that the Grievor should be accommodated. It was undisputed that she is being accommodated by taking the day off work for treatment, but without pay. The claim is that she is entitled to sick pay under Article 44.1.2.

9As noted, the situation here involves an injection, and there is no evidence that it can only be done while the Grievor would otherwise be at work. It might not be as convenient to travel and obtain the treatment after work, but under these specific circumstances, I am not persuaded that the Grievor is entitled to sick pay benefits for the days she takes off for her treatments. Had the facts shown that the treatments are required and may only be done during work time, it might be that she should be deemed “unable to work” during those treatments. The evidence here does not establish that.

10Accordingly, the grievance is dismissed.