GSB# 2019-2426

UNION# 2019-0411-0020

IN THE MATTER OF AN ARBITRATION

Under

THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT

Before

THE GRIEVANCE SETTLEMENT BOARD

BETWEEN

Ontario Public Service Employees Union (Doyle)

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

Victoria Tsiaras Ministry of the Solicitor General Employee Relations Advisor

HEARING

June 22, 2023

Decision

1The Employer and the Union at the Ottawa Carleton Detention Centre (“OCDC”) 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.

2Ryan Doyle is a Correctional Officer at the OCDC. On October 22, 2019 Mr. Doyle filed a grievance claiming that the Employer had violated various provisions of the collective agreement, the COCAP policy, the Health and Productivity Program, and the Human Rights Code when it failed to properly manage his accommodation upon his return to work from sick leave, thus causing him undue stress and financial hardship as his Short Term Sick Plan (“STSP”) credits ran out before he was finally returned to work. By way of remedy the grievor seeks to be paid for all time lost from October 9, 2019 to the date he was returned to work; all missed overtime opportunities; and holiday overtime pay for October 14, 2019.

3The grievor went off work on sick leave on March 1, 2019 and was ultimately off work for over seven months. During that time he provided the Employer with various medical notes from Dr. Yves Lefebvre including the following:

• May 30, 2019, indicating that the grievor was totally disabled until June 28, 2019.

• June 25, 2019, indicating that the grievor was totally disabled until July 29, 2019.

• July 15, 2019, completed a health questionnaire from the Employer. It indicated that the grievor could not return to work or any employment at that time.

• July 23, 2019, indicating that the grievor was totally disabled until September 15, 2019.

• September 3, 2019, indicating that the grievor was totally disabled until November 1, 2019.

• October 2, 2019, indicating that the grievor was fit to return work on October 9, 2019, with three restrictions: that he only does light duty; that he works full time hours but only on the day shift; and that he works in the Segregation area only. The note indicated that Mr. Doyle would be reassessed in six weeks.

4The Employer received the October 2, 2019 note on October 3rd. Since by that time Mr. Doyle had been off work for seven months, this note appeared to be at odds with the previous note that indicated that the grievor was totally disabled until at least November 1, 2019, the Employer sought more information. As the grievor had advised the Employer that he had another appointment with his doctor on October 8th, the Employer asked him to take a health questionnaire to that appointment so that the Employer could better understand the grievor’s situation. It was also concerned as the doctor was recommending light duties, but in the Segregation area, which was not considered a light duty area.

5On October 8, 2019 Mr. Doyle saw Dr. Lefebvre again, and provided him with the questionnaire. The doctor gave him another note at this visit, but this one indicated that the grievor should return to regular duties, albeit still only for day shifts and in the Segregation area.

6The grievor provided this note to the Employer, who was further confused by the note, especially as it had not yet received the completed health questionnaire which raised questions for the physician regarding his previous medical note.

7It appears that the grievor was anxious to return to work as he had realized that his STSP credits would run out on October 9, 2019.

8Dr. Lefebvre’s completed health questionnaire was finally returned to the Employer on October 16, 2019. However, in the Employer’s view it was unsatisfactory. Nonetheless, it wanted to try to accommodate the grievor’s return to work as it was aware by then that his STSP credits had been exhausted. A Deputy Superintendent at the OCDC called the grievor to try to better understand the medical restrictions. As a result of that discussion, on October 17th the Employer offered Mr. Doyle two options for accommodated posts based on the physician’s noted restrictions, while the Employer continued to pursue the medical issues.

9On October 21, 2019 Mr. Doyle advised the Employer of his preferred choice of post, and he was returned to work on October 22, 2019.

10The Union and grievor argue that the Employer should have returned Mr. Doyle to work on October 9th, and that it failed to accommodate him when it did not do so. As a result the grievor suffered loss of wages and overtime opportunities between October 9 and 21, 2019.

11The Employer argues that it acted expeditiously in this instance, especially in the face of conflicting medical notes and a failure of the grievor’s physician to provide a timely response to the health questionnaire. Even when it had not received sufficient medical information by October 16th, it nonetheless went ahead and, complying with the physician’s earlier restrictions, provided the grievor with two options for his return to work.

12Having reviewed the facts in this case I am satisfied that the Employer acted diligently and quickly to try to get Mr. Doyle back to work in an accommodated position. It appears that Mr. Doyle only became anxious to return to work when he realized that his STSP credits were about to run out. That led to the Employer having before it an employee who had been off work for seven months; a doctor who had on September 3rd said that the grievor was totally disabled, and would not likely be back to work before November 1st; and then one month after that assessment, a doctor’s note saying that Mr. Doyle should return to work on light duties in the Segregation area, which was not a light duty area.

13Faced with these facts the Employer was well within its rights to seek clarification from the grievor’s physician. I find that it moved quickly to do so, knowing that the grievor had another imminent appointment with his doctor, and that he was also about to have no source of income.

14While it is not the grievor’s fault that his doctor took so long to return the completed health questionnaire, neither can the Employer be held accountable for that delay. In any event, even when faced with an inadequate response from the physician, the Employer moved quickly the next day to try to accommodate the grievor based on his doctor’s original restrictions.

15Having considered the facts and submissions of the parties, and for the reasons outlined above, I cannot find any breaches of the collective agreement or the Human Rights Code in this instance, and therefore the grievance is hereby dismissed.