Grievance Settlement Board

GSB# 2019-2159

IN THE MATTER OF AN ARBITRATION

Under

THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT

Before

THE GRIEVANCE SETTLEMENT BOARD

BETWEEN

Association of Management, Administrative and Professional Crown Employees of Ontario (Complainant)

Association

• and -

The Crown in Right of Ontario

Employer

BEFORE

Ian Anderson

Arbitrator

FOR THE ASSOCIATION

Nadine Blum Goldblatt Partners LLP Counsel

FOR THE EMPLOYER

Thomas Ayers Treasury Board Secretariat Legal Services Branch Counsel

HEARING

April 13 and September 20, 2021

Decision

1The parties to this Dispute have agreed to refer this matter to me, sitting as a single mediator-arbitrator, in accordance with s. 50(1) of the Labour Relations Act (which is incorporated with modification into the Crown Employees Collective Bargaining Act).

2The parties attempted to resolve this Dispute by mediation with my assistance on April 13 and September 20, 2021. As the parties were unable to resolve all outstanding issues, they have asked that I determine the Dispute by arbitration and produce brief reasons. The parties have also agreed that this decision will not have precedential value. Further, the parties have requested that the decision be anonymized.

3Based on the representations of the parties and the material before me, I make the following findings of fact.

4The Complainant, G.H., was employed by the Employer until the Employer declared she had abandoned her position on September 28, 2018. She was a long-service employee, with a continuous service date of May 7, 1990.

5G.H. became ill, went off work and began receiving benefits under the Short Term Sickness Plan in or around September 2017. The last medical she provided to the Employer substantiating her absence was dated December 28, 2017.

6In or around March, 2018, G.H. told her manager that she would be applying for Long Term Income Protection. G.H. never in fact did so.

7In or around April, 2018, G.H. spoke with her manager by phone. During this call G.H. discussed her health and the manager noted that G.H. sounded unwell.

8In or around August 2018, the Employer wrote to G.H. stating that as she had not provided updated medical, the Employer now considered her to be on an unapproved absence without pay. The Employer requested that she provide updated medical to substantiate her ongoing absence. The Employer followed up by letter and phone. On September 6, 2018, G.H. left a voice message for her manager requesting additional time to provide the updated medical.

9The Employer declared G.H. to have abandoned her position on September 28, 2018, having not received updated medical by that time.

10G.H. would have retired on the date she turned 60, August 4, 2019, had the Employer not declared her to have abandoned her position on September 28, 2018.

11Sadly, G.H. passed away on August 4, 2021.

12Based on the unique facts of this case, including the nature of the disability, the medical information the Employer already had and the exchanges that had taken place between G.H. and the Employer, I find that the Employer ought not to have placed G.H. on an unapproved leave of absence as of August, 2018, but rather should have considered her to be on an approved unpaid leave of absence from that date forward. Accordingly, I find G.H. could not be considered to have abandoned her position as of September 28, 2018. I further find that G.H. ought to have been considered to be on that approved unpaid leave of absence until August 4, 2019, the date on which she intended to retire.

13I hereby order the Employer to reinstate G.H. to her position effective September 28, 2018, and to place her on an unpaid leave of absence from that date until August 4, 2019, at which point she will be deemed to have retired.

14I remit the matter back to the parties to attempt to agree on any remaining remedial issues with respect to this matter, and I remain seized should any issues arise that the parties are unable to resolve themselves.