GSB# 2022-9851; 2022-9975’ 2022-9976; 2023-02520
UNION# 2022-0230-0016; 2022-0230-0017;
2022-0230-0018; 2023-0230-0026
IN THE MATTER OF AN ARBITRATION
Under
THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT
Before
THE GRIEVANCE SETTLEMENT BOARD
BETWEEN
Ontario Public Service Employees Union (Sharma)
Union
- and -
The Crown in Right of Ontario (Ministry of the Solicitor General)
Employer
BEFORE
Adam Beatty
Arbitrator
FOR THE UNION
Robert Healey Ryder Wright Holmes Bryden Nam LLP Counsel
FOR THE EMPLOYER
Felix Lau Treasury Board Secretariat Legal Services Branch Counsel
HEARING
May 10, 2024
Decision
A. Introduction
1The Grievor was hired as Corrections Officer in May 2004. She was assigned to the Ontario Correctional Institute (“OCI”).
2The Grievor suffers from a medical condition that causes insomnia and other symptoms. In or around 2019 the Employer started accommodating the Grievor for that condition by assigning her to the night shift. In or around February 2020, the Employer told the Grievor she would no longer be accommodated. In or around July 2020, the Grievor went on sick leave due to her medical condition. Despite attempts to return to work throughout the remainder of 2020, the Grievor was unable to do and resumed sick leave.
3On January 8, 2021 the Grievor resigned her employment with the OPS by way of email to her Superintendent.
4In or around February 2021, the Grievor contacted the Employer seeking to be re-employed as a Corrections Officer. By way of email dated June 14, 2021, the Grievor asked her Superintendent whether she could retract her resignation. Her request was denied.
5On or around June 17, 2021 the Grievor filed a grievance in response to the Employer’s denial of her request to retract her resignation. The Employer took the position that the grievance was untimely. The Grievor then filed a second grievance on or around July 24, 2021 challenging the Employer’s position that the June 17, 2021 grievance was untimely.
6In or around September 21, 2021, the Grievor withdrew the June 17 and July 24, 2021 grievances. The Grievor had filed an application with the Human Rights Tribunal of Ontario and believed that the HRTO application would proceed more quickly.
7Between October 27, 2022 and November 1, 2022 the Grievor filed grievances 2022-0230-0016; 2022-0230-0017; and 2022-0230-0018. On or around October 26, 2023, the Grievor filed grievance 2023-0230-0026 (the “four grievances”). The four grievances have been consolidated and are the grievances that are being heard in this proceeding.
8At a very high level, the four grievances challenge the Employer’s response to the Grievor’s resignation, and her request to retract that resignation. The Union submits that the Employer was aware, or ought to have been aware, that the Grievor suffered from medical disabilities. As such, the Union argues that the Employer was required to take additional steps and to inquire further before accepting her resignation (or before declining her request to retract her resignation). The Employer’s failure to do so, according to the Union, amounts to a violation of the Collective Agreement and various pieces of legislation and workplace policies.
9The grievances also raise allegations of harassment and bullying.
10The Union has requested that the Employer produce the following documents:
a. An Occurrence Report filed by the Grievor on or about March 4, 2015;
b. Any emails from Sgt. T. Tidd to the Grievor regarding her work at the Ontario Correction Institute;
c. A Fitness to Work Accommodation Plan sent by the Grievor’s doctor and confirmed received by the Employer as per emailed confirmation on November 14, 2016;
d. An email from Mr. Hasted sent to the Grievor in or about 2020 in response to an email from the Grievor asking a question about her expenses;
e. Any reports or other communications from the disability specialist who advised the employer in or about 2020 that the Grievor’s accommodation to night shifts was no longer required;
f. All medical reports submitted to the employer by any doctor, including but not limited to Dr. Veenema, and including but not limited to a note from Dr. Veenema indicating that the Grievor has a disability which necessitates that she receive extra time for completing written tests prior to becoming a Corrections Officer; and
g. All other notes, emails and other documents to, from or about the Grievor in respect of her disability in 2015 and until the date of the instant grievances.