GSB# 2023-01897

UNION# 2023-0248-0104

IN THE MATTER OF AN ARBITRATION

Under

THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT

Before

THE GRIEVANCE SETTLEMENT BOARD

BETWEEN

Ontario Public Service Employees Union (Singh)

Union

• and -

The Crown in Right of Ontario (Ministry of the Solicitor General)

Employer

BEFORE

Gail Misra

Arbitrator

FOR THE UNION

Richard Dionne Ontario Public Service Employees Union Grievance Officer

FOR THE EMPLOYER

Shivani Ramoutar Treasury Board Secretariat Employee Relations Advisor

HEARING

October 25 & 26, 2023

Decision

1The Employer and the Union at the Hamilton Wentworth Detention Centre (“HWDC”) agreed to participate in mediation-arbitration in accordance with the Local Mediation-Arbitration Protocol that has been negotiated by the parties. Should mediation not result in resolution of a grievance, pursuant to the Protocol, they have agreed to a mediation-arbitration process by which each party provides the Arbitrator with their submissions setting out their respective facts and the authorities they may be relying upon. This decision is issued in accordance with the Protocol and with Article 22.16 of the collective agreement, so that it is without precedent or prejudice to any other matters between the parties, and is issued without detailed written reasons.

2Daljinder Singh is a Correctional Officer (“CO”) at the HWDC. On May 25, 2023 Mr. Singh filed a grievance claiming various breaches of the collective agreement and Employer policies. In particular, the grievor asserts that the Employer improperly refused to pay him sick time for his absence on May 19, 20 and 21, 2023 because of a failure to provide documentation or a medical certificate for his absence. Mr. Singh maintains that on May 19, 2023 he was not asked to provide any medical support for his absence. According to the grievance, Mr. Singh, of his own accord, provided the Employer with a medical certificate on June 4, 2023. He claims that this was all a reprisal and was discriminatory based on his medical diagnosis. By way of remedy the grievor seeks to be made whole for his losses.

3On May 19, 2023, the Friday before the Victoria Day long weekend, the grievor was working the day shift. Sgt. de Vries was the In Charge (“I/C”) officer on that shift. On May 23, 2023 she filed an Occurrence Report (“OR”) outlining what had occurred on May 19, 2023. At approximately 9 a.m., when Sgt. de Vries asked the staff to unlock the institution after the staff briefing for the day, another CO, Officer Schweinbenz, raised a health and safety concern and there was a work refusal. The Ministry of Labour was alerted, and by approximately 12:40 p.m. it had ruled that there were no grounds for a health and safety work refusal. As such Sgt. de Vries asked staff again to unlock the institution.

4Ten minutes later, at 12:50 p.m. Mr. Singh advised Sgt. de Vries that he was not feeling well and was going home sick. As the I/C believed this was because of the Ministry’s ruling on the work refusal, she told the grievor that he needed to bring in a doctor’s note to support his illness. While it does not appear that the grievor told the I/C what was ailing him, at this proceeding he advised that he had a pain in his ankle. It is unclear when this pain commenced, but it is apparent that it was not as a result of a workplace injury as no WSIB claim was filed.

5The grievor called in sick for his scheduled shifts on the next two days, May 20 and 21, 2023, and returned on May 24^th^ for his next scheduled shift. According to the grievor, when he had checked on line he noted that he had been marked on the system as being off sick for May 19, 20 and 21. However, when he checked again a couple of days later, he saw that the notation for those three days had been changed to “leave without pay”. It appears that Mr. Singh then filed his grievance on May 25, 2023.

6According to the Employer, Sgt. de Vries had initially marked the grievor as being off work sick as she expected he would provide a medical note to support his illness. However, when the Scheduling Manager came back to work the following week, the notation on the system was changed to “leave without pay”. Had the grievor provided an acceptable medical note, the notation was subject to change. However, the grievor did not supply a medical note, so he was ultimately not paid for the time he was off work.

7Mr. Singh provided the Employer with a medical note on June 3, 2023. That note is from the Brantford General Hospital Emergency Department. It indicates that the grievor was seen there on June 3, 2023, and simply states “off May 19 – 21” and that the patient is to see his family doctor before returning to work. Based on the facts, the grievor had already been back at work since May 24, 2023.

8The grievor continues to maintain that he was never told that he had to provide a medical note for his claim of being sick on May 19^th^ or at any other point, and that he had, of his own volition got the medical note on June 3^rd^. According to the grievor and Union, Sgt. de Vries’ OR is suspect as she did not complete it till May 23^rd^, which was four days after the events of May 19^th^. Furthermore, the grievor’s position is that CO Schweinbenz was not required to provide a medical note, which is supportive of his recollection that he was not asked to do so either.

9There are two problems with the grievor’s position. The first is that CO Schweinbenz did not leave work claiming illness on May 19, 2023 following the unsuccessful work refusal. Mr. Schweinbenz advised the Employer he would not work overtime that day, but he continued working on his shift. As such, there was no basis for the Employer asking him to provide a medical note as he didn’t go home sick.

10The second issue is that the Employer has provided a copy of the May 19, 2023 Log Book entries on which at 12:50 p.m. Sgt. de Vries has noted as follows: “CO Singh, D not feeling well - Going home sick – doc’s note requested”, which is followed by her signature. Thus the I/C had made a contemporaneous note of having asked the grievor to provide a doctor’s note, as well as noting it in her OR filed some days later.

11Having reviewed the evidence before me and heard the parties’ submissions, I find on the balance of probabilities that the grievor was told on May 19, 2023 that he would have to provide a medical note to support his claim of illness. However he returned to work without providing the Employer with such a note. When he did provide a note, it was entirely unacceptable as it was from an Emergency Department fifteen days after the alleged onset of the illness, but purported to cover the period of May 19 to 21, 2023, when the grievor had not been seen by anyone in that Emergency Department during that time. As such, the grievor has not established that he was ill during the days in question. I find that the Employer did not breach any provisions of the collective agreement or any policies when it determined not to pay Mr. Singh sick pay for the period in question.

12For the reasons outlined above, the grievance is hereby dismissed.