GSB# 2019-2465; 2019-2466; 2020-0822; 2020-0823; 2020-0824; 2020-0825; 2020-2054; 2020-2055; 2020-2963; 2020-2964; 2020-2965; 2020-2972; 2021-0528; 2021-1556

UNION# 2019-0526-0027; 2019-0526-0028; 2020-0526-0005;2020-0526-0006; 2020-0526-0007; 2020-0526-0008; 2020-0526-0019; 2020-0526-0020;

2020-0526-0023; 2020-0526-0024; 2020-0526-0025; 2021-0526-0006; 2021-0526-0017; 2021-0526-0023

IN THE MATTER OF AN ARBITRATION

Under

THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT

Before

THE GRIEVANCE SETTLEMENT BOARD

BETWEEN

Ontario Public Service Employees Union (McGann)

Union

• and -

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

Employer

BEFORE

Jules Bloch

Arbitrator

FOR THE UNION

Ed Holmes Ryder Wright Holmes Bryden Nam LLP Counsel

FOR THE EMPLOYER

Debra Kyle Treasury Board Secretariat Legal Services Branch Counsel

Decision

1I was appointed by the Grievance Settlement Board (“GSB”) to hear fourteen grievances.

GSB# OPSEU#

2019-2465 McGann, Dag 2019-0526-0027

2019-2466 McGann, Dag 2019-0526-0028

2020-0822 McGann, Dag 2020-0526-0005

2020-0823 McGann, Dag 2020-0526-0006

2020-0824 McGann, Dag 2020-0526-0007

2020-0825 McGann, Dag 2020-0526-0008

2020-2054 McGann, Dag 2020-0526-0019

2020-2055 McGann, Dag 2020-0526-0020

2020-2963 McGann, Dag 2020-0526-0023

2020-2964 McGann, Dag 2020-0526-0024

2020-2965 McGann, Dag 2020-0526-0025

2020-2972 McGann, Dag 2021-0526-0008

2021-0528 McGann, Dag 2021-0526-0017

2021-1556 McGann, Dag 2021-0526-0023

2At paragraph 2 of my January 27, 2023, decision I said the following:

The parties made submissions about how this matter will be adjudicated. Having reviewed the parties’ submissions I have directed the following:

a. This matter is proceeding under article 22.16 of the collective agreement. between the parties.

b. The union has filed with the Board and the Employer all grievance forms, material facts, particulars and the grievor’s summation of events. The union’s filings are a complete compendium of all information necessary to adjudicate these matters. The union is not permitted to file any further information on this matter except with leave of the Board.

c. The employer is in receipt of the union’s fillings and is directed to reply to all information provided by the union on or before May 1, 2023. The

employer will not be able, without leave of the Board, to file any other

material after May 1, 2023.

d. The Board will, prior to May 17, 2023, identify to the parties which of the grievances require further explanation or submissions. Any grievance

which does not require further explanation or oral submissions will [sic] be

decided on the material presented.

3The Union has filed fourteen (14) grievances (referred to either individually or collectively as the “Grievances”) on behalf of Dag McGann (“the grievor”). Five (5) hearing dates have been held. (April 9, 2021, January 31, 2022, February 17, 2022, January 25, 2023, and on May 17, 2023).

4The parties appeared before me on May 17, 2023, to answer some questions about the written submissions that have been tendered before me. After answering the questions, I adjourned the hearing. I have reviewed all the evidence, jurisprudence, and submissions that the parties have provided. I will refer only to the facts and arguments that are necessary in making my decisions. These decisions are rendered without prejudice or precedent.

5The grievor is a flexible, part-time 1500 hour, Registrar (“FPT Registrar”) whose terms and conditions of work are governed by Appendix 32 of the collective agreement between OPSEU and Management Board of Cabinet. (“the collective agreement”). Unlike regular, part-time employees, flexible part-time employees, do not have regularly scheduled hours of work each day or each week. The grievor receives his work assignments at the end of each day by either calling in or through the internet. The grievor is guaranteed 57.5 hours of work biweekly and 1500 hours per year. There is a mechanism in the collective agreement to make the necessary adjustments to ensure that the minimums are met.

GSB # 2020-0823 McGann, Dag OPSEU # 2020-0526-0006 (March 23, 2020)

6This grievance challenges the employer’s approach to the grievor’s attempt to use sick days rather than vacation credits or unpaid leave to attend medical appointments. The grievor asserts that he has been harassed by being forced to take vacation days for his medical appointments and bullied because he is denied access to sick days for his medical appointments.

7I find that there is no breach of the collective agreement. The grievor can either arrange to attend medical appointments outside his regular work hours; or he can seek approval to either use available credits or to take unpaid leave. If medical appointments are related to on-going medical treatment, it may be considered as sick time; however, the grievor made no such request and to date has not provided any documents to substantiate that his medical appointments are part of on-going medical treatment.

8I direct the grievor, when making a medical appointment, to arrange to attend medical appointments outside of his regular work hours or seek approval from the employer about how to treat the time off necessary to attend at the appointment.

9The grievor has not been harassed or bullied, rather the employer is simply applying the collective agreement to the grievor’s requests. Interestingly the grievor is not suggesting he is being treated differently than anyone else.

10This grievance is dismissed.

Assignment of work that is less then 7.25 hours per day.

Some of the 14 grievances advance the notion that Appendix 32 of the collective agreement guarantees the grievor a 7.25 hour workday. I find that the grievor is neither regular nor fixed-term staff; rather, he is a flexible part-time employee whose hours of work are governed by Appendix 32 of the Collective Agreement. There is a process that the parties have developed to assign work to workers like the grievor. Each worker governed by Appendix 32 of the Collective Agreement must call in or use the internet to find out about their work assignments. The employer has complete authority, pursuant to Appendix 32, to determine an individuals’ work schedule. The only constraints on the employer in assigning work to an Appendix 32 employee, like the grievor, is that the employer must provide 57.5 hours paid work bi-weekly and guarantee a minimum of 1500 hours paid work per annum. There is a mechanism in the collective agreement to make the necessary adjustments to ensure that the minimums are met.

GSB Grievance # 2020-0825 McGann, Dag OPSEU Grievance # 2020-0526-0008 (December 16, 2020)

11The grievor asserts that the employer is prohibited from reducing his scheduled hours on December 19, 2020.

12The employer asked the grievor to sign out early on Tuesday December 19, 2020, while other employees continued with their shift. Paragraph 6 above explains the employer’s obligation to the grievor. The employer can send an employee home early. This is not vexatious conduct. There are no facts tendered which would allow me to make a finding of a breach of the collective agreement. This grievance is dismissed.

GSB Grievance # 2020-2964 McGann, Dag OPSEU Grievance # 2020-0526-0024 (December 11, 2020)

13The grievor asserts, that he should be advised daily with respect to his assigned hours of work; and that he was inappropriately sent home on November 12, 13, and 27, 2020. Further, the grievor alleges that the Employer has violated Article 3.3 when the Employer engaged in vexatious comments. Mr. Samac stated in an email exchange: “future questions on this topic that are argumentative or deliberately obtuse may be considered insubordination”. The grievor states that Mr. Samac is aware of the use of the phrase and the fact that this phrase is the subject of an existing grievance.

14The grievor calls a central line or uses the internet, at the end of each workday, and is advised what time he is to start the next day and to which courtroom he is assigned. Subject to the activity in the court that day, the grievor’s end of day is flexible. There is nothing in Appendix 32 that guarantees the grievor any specific hours of work on any given day. See paragraph 6 above.

15The employer is frustrated with the grievor as he continues to challenge his hours of work and continues to believe that he is entitled to 7.25 hours per workday. The employer is pointing out to the grievor that being argumentative and deliberately obtuse about Appendix 32 of the collective agreement may lead to discipline. I find that notifying the grievor that his behaviour will be performance managed is appropriate in these circumstances. This grievance is dismissed.

GSB Grievance # 2020-2965 McGann, Dag OPSEU Grievance # 2020-0526-0025 (December 18, 2020)

16The grievor asserts, that he was improperly paid on December 2, 2020, when he attended the GSB. Specifically, he asserts that per Article 32(3)(f), he is entitled to call-back pay.

17When the grievor attends the GSB, he is paid 5.75 hours. Should the GSB hearing finish in advance of the 5.75 hours he may be requested to finish his 5.75 hour shift by returning to the court. Should he work more than the 5.75 hour shift he would be entitled to extra pay. I have no evidence before me that he worked more than the 5.75 hours on the day in question. He was properly paid for time worked. This Grievance is dismissed.

GSB file # 2020-2972 McGann, Dag OPSEU file #2021-0526-0008 (February 12, 2021)

18The grievor asserts, that he was improperly paid on January 15, 26, and 27, 2021 when he attended the GSB. The grievor asserts he should have received 7.25 hours because he returned to the courts after the GSB day ended.

19He was paid 5.75 hours for attending the GSB on the days in question. I have no evidence before me that the grievor worked more than 5.75 hours on those days. The employer is allowed to direct the grievor to finish his day (5.75 hours) at the courts. Should, after working at the courts, a grievor ends up working for more than the 5.75 hours allotted for the GSB day, he must be paid the difference. I have no evidence before me that he worked more than the 5.75 hours he was paid on the days in question. This grievance is dismissed.

GSB # 2021-0528 McGann, Dag OPSEU # 2021-0526-0017 (April 16, 2021)

20The grievor asserts, that he was improperly paid when he returned to work after the GSB hearing on April 9, 2021. Specifically, the grievor asserts he is to be paid more hours according to Appendix 32(3)(f).

21The grievor was paid 5.75 hours for attending the GSB on April 9, 2021. I have no evidence before me that the grievor worked more then 5.75 hours on those days. The employer is allowed to direct the grievor to finish his day (5.75 hours) at the courts. Should, after working at the courts, a grievor ends up working for more than the 5.75 hours allotted for the GSB day, he must be paid the difference. I have no evidence before me that he worked more than the 5.75 hours he was paid on April 9, 2021. This grievance is dismissed.

GSB # 2021-1556 McGann, Dag OPSEU # 2021-0526-0023 (June 2, 2021)

22The grievor asserts, that he was improperly paid on May 20, 2021, as he returned to the workplace at the end of the hearing.

23The grievor was not directed to return to the workplace at the end of a scheduled shift; rather, he was at the GSB, and returned to the workplace to complete the 5.75 hours for which he is compensated pursuant to Article 22.5.1). The grievor is expected to return to the workplace for the remainder of the 5.75 hours for which he is paid. I have no evidence that the grievor worked beyond the 5.75 hours allotted for the GSB day. The grievor was paid in accordance with the collective agreement. This grievance is dismissed.

The letter of discipline dated November 25, 2020, and associated grievances.

24The letter outlines a few areas of concern. The grievor failed to obtain managerial approval prior to absenting himself from work on September 14, 2020, and September 25, 2020. The grievor failed to follow management’s instructions to meet management at 9:00 am prior to performing the Health and Safety inspection of the 5th floor at 330 University Avenue, on Tuesday, October 6, 2020. Instead, the grievor inappropriately started his shift at 8:30 am. He inappropriately entered his start time of 8:30 am into CTRS when he was directed to meet management at 9:00 am. Further, when the October 2, 2020, GSB hearing finished, the grievor failed to return to the courts to complete the 5.75 hours of work he was paid for. The grievor had been counselled on numerous occasions to return to the court if the GSB day finished before the 5.75 hours of work had elapsed.

25The employer posits that the grievor’s actions were insubordinate and unprofessional, and demonstrated poor judgement. The employer deducted 10 hours of pay due to the grievor’s unauthorized work absences:

i. Monday September 14, 2020 – Attending a medical appointment without authorization to take leave. – 1.5 hour

ii. Friday September 25, 2020 – Not working due to unsubstantiated claims that you were unable to access your computer because of construction in your apartment and no leave was requested-5.75 hours

iii. Tuesday October 6, 2020, inappropriately entering additional hours onto CTRS that were not approved work hours- 0.50.

iv. Friday October 2, 2020- failing to return to work after the GSB hearing without requesting leave.

GSB # 2020-2963 McGann, Dag OPSEU # 2020-0526-0023 (December 4, 2020)

26The grievor disputes the letter of discipline however he accepts that 8.5 hours have been appropriately deducted from his pay.

27The grievor, in his submissions does not dispute that he failed to follow managements instructions, noted above. Although the grievor attended a medical appointment on September 14, 2020, and produced an invoice, the grievor did not make the appropriate request to absent himself. The grievor claims he was unable to work on September 25, 2020, however he did not ask for a leave of absence. The grievor did not meet his supervisor at 9:00 a.m on October 6, 2020, as directed; instead, the grievor attended at work at 8:30 a.m. to perform the health and safety inspection. He did not meet with his supervisor as requested. Further, the grievor added additional time into CTRS without authorization. Finally, the grievor failed to complete his 5.75 hours of work after the GSB hearing on October 2, 2020. He did not return to the Courts as directed.

28I find that the letter of discipline was a measured response to the grievor’s acts of insubordination.

29The grievor produced a medical note for Monday September 14, 2020. I direct the employer to pay to the grievor the 1.5 hours which was inappropriately deducted from the grievor’s pay.

30In this grievance, the grievor raises allegations about anti-union animus, discrimination against his family, health and safety violations and vexatious comments in the discipline letter. None of these allegations are factually supported consequently, all these allegations are dismissed as there are no facts raised which the employer can rebut.

31This grievance is allowed in part.

GSB # 2020-2055 McGann Dag OPSEU # 2020-0526-0020 (September 29, 2020)

32The grievor asked the employer a hypothetical question about an accommodation if the grievor provided the Employer with a medical note stating that he is unable to wear a mask but instead a clear face shield. Further, the grievor asked whether he would be allowed to work from home and if yes, whether he would be provided with all workplace equipment including laptop, noise cancelation headphone and laptop holder.

33Additionally, the grievor asserts that upon his return to work, there were quite a bit of uncertainty about the changing policies around mandatory masking policy at work. The grievor was concerned about his health and whether he was infectious.

34The grievor never provided the employer with a medical note which disclosed a limitation requiring the grievor to wear a face shield instead of a face mask.

35The grievor asserted that the employer used demeaning words in characterizing the grievor including accusing him of being argumentative and deliberately obtuse.

36In my view the return-to-work material is clear. The employer was attempting to make sure that the grievor had a complete understanding of what was expected of him upon his return to work. The grievor was making communication difficult which frustrated the employer. I find that the grievor was being argumentative. Although the employer could have used different words to get its point across, the words used where blunt but appropriate in the circumstances.

37The grievance is dismissed.

GSB # 2020-2054 McGann, Dag OPSEU # 2020-0526-0019 (September 29, 2020)

38The grievor asserts, a variety of issues arising from an incident on Friday, September 25, 2020. Specifically:

a. that the Employer should not have called him on his personal cell phone;

b. that his personal email is only to be used in emergencies;

c. that he should have been allowed a shop steward during a phone call from his Employer;

d. that he should not have been asked to take a photograph of his workspace at home.

39This grievance is about communication between the grievor and the employer. It is an example about how the relationship has broken down. Prior to using the grievor’s personal email and cell phone, the employer attempted to reach the grievor using his work e mail and home phone. The employer wanted the grievor to be familiar with certain information before returning to work.

40The parties must agree on how they intend to communicate with each other. I direct the grievor to inform the employer about which modes of communication are permissible. It is understood that the grievor during working hours must provide a reliable way to communicate expeditiously with the employer.

41The issue of discipline did not arise during the conversations between the grievor and his employer, consequently a shop steward was not necessary. It is only at the point of issuing discipline that a steward is necessary.

42The grievance is denied.

The return-to-work Grievances

43The grievor was diagnosed with a herniated disc in 2014. The grievor underwent major surgeries on March 23, 2015, and again on July 9, 2019.

GSB# 2019-2465 McGann, Dag OPSEU # 2019-0526-0027

GSB# 2019-2466 McGann, Dag OPSEU # 2019-0526-0028

44The above noted grievances deal with the grievor’s return to work. I find that the employer had enough information on November 5, 2019, to return the grievor to work. A return-to-work meeting should have been held prior to November 15, 2021. The accommodation should have been set in place so that the grievor could have returned to work on November 18, 2021. These grievances are allowed in part, and I direct the employer to pay the grievor two weeks’ pay. The grievance is allowed in part.

The Change Room

GSB # 2020-0822 McGann, Dag OPSEU # 2020-0526-0005

45The change room according to the grievor, smells. He asserts that there is a sewage smell in the men’s change room. The smell was investigated by the Joint Health and Safety Committee (“JHSC”). Management addressed the issue and as of October 20, 2021, this issue was no longer on the JHSC agenda.

46Other than the grievor’s complaint, I have no evidence that the smell lingered beyond October 20, 2021. The grievance is dismissed.

GSB # 2020-0824 McGann, Dag OPSEU # 2020-0526-0007

47The grievor asserts that the pipes in the hallway of B2 are too low, which means he is unable to walk down the hallway without hitting his head on the extensions from the pipes.

48The JHCS recommended and the employer agreed to place a “caution” sign in the hallway. I reviewed a video and pictures which clearly show that if the grievor moved to the centre of the hallway he would avoid the pipes. I find that there is no safety risk. This grievance is dismissed.

49The Union in its submissions raised issues that were not associated with any filed grievance. I have not commented on any of those issues. Also, the grievor in many of the grievances asserted that the employer acted in bad faith, harassed, or acted in a vexatious manner. The grievor has not proffered any evidence which would lead me to a conclusion that the grievor was harassed, bullied, treated in bad faith or that the employer acted in a vexatious manner.

50I am seized of the interpretation and implementation of these grievances.