GSB# 2017-0259

UNION# 2016-0999-0044

IN THE MATTER OF AN ARBITRATION

Under

THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT

Before

THE GRIEVANCE SETTLEMENT BOARD

BETWEEN

Ontario Public Service Employees Union (Union)

Union

• and -

The Crown in Right of Ontario (Ministry of Government and Consumer Services)

Employer

BEFORE

Nimal Dissanayake

Arbitrator

FOR THE UNION

John Brewin Ryder Wright Blair & Holmes LLP Counsel

FOR THE EMPLOYER

Caroline Cohen Treasury Board Secretariat Senior Counsel

HEARING DATE

January 23, 2018

DECISION

1When the instant union grievance came before the Board, the parties agreed to engage in settlement discussions with my assistance as mediator. Following mediation the parties executed a Memorandum of Settlement, resolving the grievance.

2The Memorandum of Settlement included the following terms;

1. In accordance with the Benko et al decision, absences flowing from a disability as defined by the Code must be precluded, both for the purposes of entry and progression through the ASMP. Where an employee has provided information that indicates that an absence flows from such a disability, it shall be precluded. For the purpose of excluding an absence from the ASMP, the Employer shall not insist that an employee’s medical practitioners use any particular language and shall accept any note provided by a legally qualified medical practitioner which indicates that the absence was related to a disability, including, but not limited to, notes which refer to a chronic medical condition. Employees’ doctors will not be required to stipulate that their patient had a disability “as defined by the Code.”

2. No later than April 30, 2018, in respect of the Unified bargaining unit, the Employer will review the files of employees who remain in the ASMP, to determine whether any absences ought to have been precluded, and will advise the Union of the results of its review.

By October 30, 2018 the Union will identify individual cases which, arising from the Employer review, it believes should be precluded and/or which have outstanding remedial issues.

3. If any disputes regarding preclusion of any Unified employees’ absences remain following the Unified bargaining unit review, they may be referred to Arbitrator Dissanayake, who will have jurisdiction to hear and determine those issues, including the jurisdiction to determine how to expedite the process.

4. The implementation of Paragraph 1, with respect to the Correctional bargaining unit, shall be referred back to the Parties.

3The parties jointly requested that the foregoing terms be issued as an order of the Board. In accordance with that agreement, it is hereby ordered that the foregoing terms shall constitute, and have the effect of, an order of this Board.