GSB#2016-2441

UNION#2017-0368-0002

IN THE MATTER OF AN ARBITRATION

Under

THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT

Before

THE GRIEVANCE SETTLEMENT BOARD

BETWEEN

Ontario Public Service Employees Union

(Giese)

Union

• and -

The Crown in Right of Ontario

(Ministry of Health and Long-Term Care)

Employer

BEFORE

Ken Petryshen

Arbitrator

FOR THE UNION

Jane Letton

Ryder Wright Blair & Holmes LLP

Counsel

FOR THE EMPLOYER

Regina Wong

Treasury Board Secretariat

Legal Services Branch

Counsel

HEARING

December 10, 2018

DECISION

1This matter has returned to the GSB to address allegations by Mr. M. Giese and the Union that the Employer failed to comply with the Memorandum of Settlement (the “Memorandum”) dated June 29, 2016. Mr. Giese is employed as an Ambulance Communications Officer (“ACO”) by the Ministry at the Lindsay Central Ambulance Communications Centre (“CACC”). The alleged failure to comply with the Memorandum is referenced by Mr. Giese in his grievance dated January 4, 2017 (GSB No. 2016-2441). The parties were unable to resolve the issues in dispute by mediation and agreed to deal with these issues under the procedure set out in article 22.16 of the Collective Agreement, except for the requirement of a decision within 5 days after the hearing. On agreement of the parties, I met separately with the Union side and the Employer side in order to assess whether Mr. Giese and the Union were correct in their assertions that the Employer failed to comply with the Memorandum.

2The Memorandum consists of a preamble and 23 paragraphs, with the key terms set out in paragraphs 1-18. The preamble and paragraphs 1-18 of the Memorandum provide as follows:

WHEREAS the Grievor filed numerous grievances alleging a variety of breaches of the collective agreement, including allegations of improper competitions, discrimination, and harassment related to disability and family status, and including but not limited to violations of Articles 2 and 3 of the Collective Agreement;

And WHEREAS the parties wish to resolve the above-noted grievances and all issues related to any grievances filed by the Grievor to date;

THEREFORE the Parties agree to the full and final settlement of the above-noted grievances without precedent and without prejudice to any other matter between the parties, on the following terms:

1. The Employer agrees to revise paragraph 1 of Appendix A of Local Operating Practice Section 2 Practice L 2.1 to indicate that Break 1 for the ACO will be 08:30 – 08:45 hours.

2. The Employer confirms that all staff within the Lindsay CACC will complete their mandatory training in accordance with the Ministry training schedules, which includes training with respect to human rights and harassment.

3. The Employer agrees to provide an in-person training session regarding the

WDHP Policy for the Lindsay CACC. The scheduling of this training session will be at the discretion of the Employer based on the availability of a facilitator for the training.

4. The Employer agrees to issue a memo to the staff at the Lindsay CACC to emphasize the importance of adhering to the obligations of the WDHP policy and the importance of respecting individuals’ privacy within the workplace regarding medical and accommodation needs within 60 days of the date of this MOS.

5. The Employer agrees to allow the Grievor to review his local file with Chris Naismith for up to two hours on one occasion in the Lindsay CACC boardroom, at a time to be agreed upon by the parties, within 15 business days of the signing of this agreement. The Employer further agrees to allow the Grievor to review his corporate personnel file with a Human Resources Advisor at a time that is mutually agreeable to the parties.

6. The Employer agrees to comply with the Ontario Human Rights Code, the Occupational Health and Safety Act, and the OPS Workplace Discrimination and Harassment Prevention policy.

7. The Employer acknowledges that, whenever possible, it is a best practice to have human resources discussions in a location separate from the communications floor, to ensure discussions are private and confidential.

8. The Employer acknowledges that the Grievor has no obligation to identify that he is changing a shift for medical reasons on the shift change form.

9. The Employer agrees that the Grievor’s medical file and any other personal information will be maintained in accordance with Employer policy and will not be accessed or relied upon for any improper purpose.

10. The Employer agrees that the Grievor’s absences will be precluded from consideration from the ASMP if the Grievor provides medical information to support preclusion of those absences in accordance with Employer policy.

11. The Employer agrees to pay the Grievor [ ] damages. The Employer agrees to make best efforts to pay this amount within 60 days of the date of confirmation from the HRTO that the HRTO file is considered closed, as noted above.

12. The Employer agrees to credit the Grievor with 10 vacation credits, to be

used by the end of 2017. The approval of the use of these credits will be subject

to operational need, and will not be unreasonably denied. For clarity, vacation credits are 8 hour credits.

13. The Employer agrees to pay the Grievor 12 hours pay at his current rate.

14. The Union and the Grievor agree that all grievances filed by the Union with respect to the Grievor to the date of this MOS are resolved.

15. The Grievor agrees to withdraw his Human Rights Tribunal Application (HRTO File No. 2015-22211-1) in full. The Grievor agrees to file a Form 9 immediately upon signing this settlement and provide the Employer with confirmation that the Form 9 has been filed. The Grievor acknowledges that he is required to do so in order to receive the financial benefit of the MOS referred to in paragraph 11 and will not receive the financial benefit of this MOS unless the HRTO confirms that the file is considered closed.

16. The parties agree that this settlement is not an admission or concession of liability or wrongdoing on the part of any of the Parties to this settlement.

17. The Parties agree that this written Memorandum of Settlement represents the complete agreement between the Parties in relation to the above-noted grievances. The Parties agree and acknowledge that they have not made any verbal or other agreements beyond what is contained in this written settlement.

18. For greater clarity, the Parties agree that this Memorandum of Settlement is not intended to affect or negate the Grievor’s accommodation plan. The parties acknowledge that the Grievors accommodation plan will be reviewed in accordance with Employer policy.

3It was alleged by Mr. Giese and the Union that the Employer had failed to comply with the terms set out in paragraphs 2, 3, 4, 6, 7, 10, 12 and 18 of the Memorandum. I first met with Mr. Giese and Ms. Letton to hear about the allegations of non-compliance. I then met with the Employer side to get its response to the allegations. I then conveyed the Employer’s position on the allegations to the Union side. When I met with the Union side there was a frank discussion about the validity of many of the alleged violations of the Memorandum. After considering the positions of the parties, I am satisfied that there is no basis for concluding that the Employer had breached the terms of the Memorandum. Consistent with the process under article 22.16, I will make some concise comments with respect to the allegations of non-compliance.

4Although Mr. Giese believed that not all staff received the mandatory training

contemplated by paragraph 2 of the Memorandum, I am satisfied that all staff has completed the mandatory training in accordance with Ministry training schedules.

5Paragraph 3 provides that the in-person training session regarding the WDHP Policy will be “at the discretion of the Employer based on the availability of a facilitator for that training.” The in-person training had not taken place when Mr. Giese filed his grievance and did not take place until April 2018. The reason for the delay had to do with the change from the WDHP Policy to the Respectful Workplace Policy and the unavailability of facilitators during the transition to the new policy. Mr. C. Naismith, CACC Manager, made more than reasonable efforts to secure the services of a facilitator, but was simply unable to get one until well into 2018. The delay in the scheduling of the in-person training was unfortunate, but the delay was not due to a lack of effort by the Employer to obtain the services of a facilitator. The Employer did not breach paragraph 3 of the Memorandum.

6In paragraph 6 of the Memorandum, the Employer “agrees to comply with the Ontario Human Rights Code, the Occupational Health and Safety Act, and OPS Workplace Discrimination and Harassment Prevention policy.” Of course, such a provision simply confirms the Employer’s obligation to comply with these matters. Mr. Giese has some other grievances scheduled before the GSB that allege violations of the statutes and the policy referred to in paragraph 6. It is through these other grievances that his allegations regarding violations of the statutes and the policy referred to in paragraph 6 should be pursued. In my view, paragraph 6 does not provide an avenue for Mr. Giese to raise allegations with respect to other employees in the bargaining unit.

7Paragraph 7 of the Memorandum deals with the location for discussing human resources matters to ensure privacy and confidentiality. The manager’s office was not located near the communications floor when the Memorandum was entered into, but has since been located near the communications floor. Mr. Giese alleges that he and other employees have had discussions about human resources issues in the manager’s office which amounts to a violation of paragraph 7 of the Memorandum. Mr. Giese indicated that any such meetings that he had in the office with his manager were with the door closed. The wording of paragraph 7 refers to a best practice whenever possible without containing a strict prohibition. The purpose of the paragraph appears to be designed to discourage the discussion of human resources issues on the communications floor where they are likely to be overheard by other employees. It is unlikely that the purpose of paragraph 7 was intended to preclude a manager from speaking to an employee about a human resources issue in an office near the communications floor where such issues can be discussed privately. I am satisfied that there has not been a breach of paragraph 7.

8The parties agreed in paragraph 10 of the Memorandum that certain absences would be precluded from consideration regarding the ASMP if Mr. Giese provided the Employer with medical information to support excluding the absences from the program. Mr. Giese faxed the medical information to the Employer along with other documents. Upon his return to the workplace in late December 2016, Mr. Giese was advised that he was being placed in level 1 of the ASMP and that he had to attend a meeting on January 12, 2017. This occurred because the Employer did not receive the medical information that Mr. Giese had sent by fax, although the Employer did receive the other documentation. Mr. Giese resent the medical information to the Employer. On the basis of that medical information, Mr. Giese was excluded from the ASMP and the January 12, 2017 meeting was cancelled. I can appreciate why Mr. Giese was troubled by these circumstances, but I have no doubt that the Employer did not receive the medical information when he sent it the first time. Once the Employer received the medical information, it proceeded to comply with its obligations under paragraph 10. The Employer, therefore, did not contravene paragraph 10 of the Memorandum.

9Paragraph 12 obliges the Employer to provide Mr. Giese with 10 vacation credits to be used by the end of 2017. In the discussions on this issue, there was some confusion on both sides about the status of Mr. Giese’s vacation credits. The parties agreed to park this issue until the matter could be clarified by a review of the appropriate records. Mr. Giese also alleged that he was denied two vacation requests and that this constituted a breach of paragraph 12. Paragraph 12 provides that approval of the use of the vacation credits will be subject to operational need and will not be unreasonably denied. Mr. Giese’s request in early July to take July 31, 2017 as a vacation day was denied. The Employer’s policy provides that no more than 3 employees can be off on vacation during a 24 hour period. Three employees had made their request to take July 31, 2017 as a vacation day prior to Mr. Giese making his request. Mr. Giese’s request on July 19, 2017 to use a vacation credit for the hours of 3:00 p.m. to 7:00 p.m. on September 10, 2017 was also denied. The Employer tried to find a replacement to work those hours, but was unable to do so. It was therefore on the basis of operational need that the Employer denied Mr. Giese’s vacation request relating to September 10, 2017. I am satisfied that the Employer did not breach paragraph 12 when it denied the two vacation requests.

10The final matter I will address relates to paragraph 18 and to some extent paragraph 1 of the Memorandum. There is not an alleged breach of these provisions as such, but Mr. Giese has a concern about them. As the preamble in the Memorandum indicates, Mr. Giese had previously alleged in a grievance that he was being treated illegally by the Employer based on family status. To accommodate the family status issue, Mr. Giese wanted his morning break time changed to 08:30 - 08:45 hours. As one can see from paragraph 1 of the Memorandum, the Employer did agree to change the time of the break to accommodate his request. Indeed, the Employer changed the break time for all the ACOs. There is no indication in the Memorandum that the Employer changed the break time due to the family status claim made by Mr. Giese. It appears to me that the Employer was simply prepared to change the break time to satisfy Mr. Giese’s request without getting into a fight over whether he was actually entitled to a different break time for family status reasons. Mr. Giese has not been denied the opportunity to leave the office during that break time. However, he believes that his right to that break time is in some doubt because there is no recognition in the Memorandum that he was entitled to the new break time for family status reasons. As I indicated to Mr. Giese at the hearing, the right to the new break time is protected by paragraph 1 of the Memorandum. The absence of any reference to family status to justify the new break time does not weaken the status of the accommodation he received. Mr. Giese expressed a concern that his supervisor engaged him in some discussion about his break on two occasions. As I understand it, there is a practice in this workplace that if someone leaves the office, that person is expected to do a coffee or food run. It appears that Mr. Giese had been asked by his supervisor if he was leaving to do a food run. Without explaining why he was leaving the office, Mr. Giese simply advised his supervisor to speak to the manager. I note that the supervisor is a bargaining unit employee classified as an ACO2. Mr. Giese believes that more certainty about the family status basis for his accommodation would mean that he would not be asked questions about leaving the office on his morning break. It is not clear to me that that would be the case. In any event, such discussions with a supervisor about his break do not amount to breach of the Memorandum. The Memorandum was drafted in a particular way by the parties and in the absence of Mr. Giese being denied the opportunity to leave the office during his morning break, there has not been a breach of paragraphs 18 and 1 of the Memorandum.

11I will remain seized of the issue relating to vacation credits referenced in paragraph 12 of the Memorandum. With respect to the other allegations of non-compliance against the Employer, Mr. Giese’s grievance dated January 4, 2017, is hereby dismissed.