GSB# 2022-11980

UNION #2022-0234-4974

IN THE MATTER OF AN ARBITRATION

Under

THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT

Before

THE GRIEVANCE SETTLEMENT BOARD

BETWEEN

Ontario Public Service Employees Union (Brusse)

Union

• and -

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

Employer

BEFORE

Dale Hewat

Arbitrator

FOR THE UNION

Gregg Gray Ontario Public Service Employees Union Grievance Officer

FOR THE EMPLOYER

Shivani Ramoutar Treasury Board Secretariat Employee Relations & Negotiations Employee Relations Advisor

HEARING

March 25, 2025

Decision

1The Employer and the Union at Vanier Centre for Women (“VCFW”) 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.

2Pam Brusse is a Correctional Officer (“CO”) at the VCFW. On March 22, 2022, Ms. Brusse filed a grievance claiming violations of Articles 2, 3 and 21 of the Collective Agreement. The grievance relates to an incident that occurred on November 9, 2021 when Ms. Brusse was called to the office 1 hour into her 12-hour shift and was requested to perform a Rapid Antigen Test (“RAT”) by the Employer as she had not, prior to her shift, provided the Employer with an attestation that she was vaccinated or that she had taken a RAT test that resulted in a negative Covid result. Ms. Brusse was sent home from work and is seeking to be fully reimbursed for her 12-hour shift on November 9, 2021.

3By November 2021, the Covid Pandemic was in full force resulting in intermittent Provincial lockdowns affecting the public, schools and places of employment. As VCFW was considered an essential service, staff were required to attend work subject to Covid screening. The Muster note from November 7, 2021 showed that the Employer’s policy requiring Covid vaccination attestation was issued and read to staff. The Muster notes from November 8 and 10, 2021 made reference to the fact that the Institution was on lockdown and that staff were reminded about vaccination attestation and the new RAT process. In addition, on November 8, 2021, a memorandum from Doug Houghton, A/Assistant Deputy Minister, Institutional Services was issued regarding Staff antigen testing in Correctional Institutions and how to submit RAT results if experiencing technical issues. In the memo, employees were advised that the Employer would be flexible as employees were learning the new system of submitting RAT results and that the Employer will not send employees home unpaid if they have other means of showing their results. Essentially, the new antigen testing process required employees to take a RAT prior to starting their shifts and to submit the test results to the Employer through the Ontario Rapid Screening Solution (ORSS) using their own personal devices. As some people were experiencing difficulties accessing the ORSS, the Employer allowed staff to send a time dated photo of their RAT results to the Institution along with filing an occurrence report and following up by submitting test results to ORSS at the workplace. Additionally, the memo stated that if an employee was already in the workplace and had attested to a negative RAT, the employee was required to provide proof of the negative test result at the earliest possible opportunity and to submit an occurrence report to the manager confirming the results. Lastly, the memo stated that if employees did not provide evidence of a negative test result by the next shift, they would be deemed to not have met the requirements of the OPS- Covid-19 Safe Workplace Directive and will be placed on an unpaid leave and may be subject to discipline.

4Ms. Brusse claimed that she did not provide an attestation prior to her shift on November 9, 2021 because she only received her first batch of RAT kits on November 9, 2021, which she observed were expired tests. When told to perform the RAT on November 9, 2021, Ms. Brusse asked if she could do the test in a safe place within the VCFW building and was told that she could not but was offered with the option to do the test in her car and could continue working if the test result was negative. Ms. Brusse was not comfortable performing the test in her car because this would have been her first time administering the test which she understood to contain bio-hazardous materials. She also claimed that she had observed other staff members taking the RAT in the VCFW lobby and could not understand why she couldn’t have been afforded the same opportunity to test within the safety of the building. Ms. Brusse claimed that when she wouldn’t perform the test in her car, she was told to go home. Ms. Brusse advised that she was not told that she could go home, take the test, and come back to work if the result of the test was negative. As a result, she went home and did not return and was not paid for her shift on November 9, 2021.

5The Employer maintained that Ms. Brusse, like all staff, was aware of the roll-out of the RAT process, as evidenced by the Muster notes and November 8, 2021 memo. Given that the institution was on Covid lock-down, it was crucial for the Employer to track Covid transmission through the antigen screening process. The Employer did agree that while they may have permitted some people to take a RAT in the lobby of the building, by November 9, 2021 it was no longer being permitted due to the need to only let people in the building who had a negative RAT result. Nevertheless, the Employer stated that Ms. Brusse was told that if she did not want to take the test in the car, she could go home and come back if her test result was negative. As well, the Employer maintained that Ms. Brusse was told that she would not be paid until she came back on duty.

6The Union argued that Ms. Brusse had no choice but to go home because there was no safe place either within the institution or in her car to take a RAT. In addition, given that she only received the RAT kits on November 9, 2021 and given the speed and confusion about how Covid screening was being implemented, Ms. Brusse could not have known that she had the opportunity to go home, test and return to her shift on November 9, 2021 and in fact denies being told that she could go home and return. On this basis the Union argued that Ms. Brusse should be reimbursed for her full shift. Alternatively, the Union submitted that Ms. Brusse should at minimum be entitled to 50% of her salary for November 9, 2021. The Union relied on the decision in OPSEU v. Ontario (Treasury Board Secretariat) 2025 CANLII 6697 (ON GSB) in which Arbitrator McLean issued a decision relating to a Union grievance at the Toronto South Detention Centre involving claims for pay where employees were not permitted to work because the employer had not received a negative RAT result from them prior to their shift. At paragraph 4 in the case, the Arbitrator concluded “that where employees did not submit a test result for reasons that were their own fault (for example, they forgot to take the test or submit the test results prior to attending at work) they shall be entitled to 50% of the wages that they would have been paid had they been permitted to take the RAT and return to work. I am satisfied that 50% loss of pay is an appropriate and reasonable employer response in these unique circumstances… For clarity, where an employee refused to submit a RAT for any reason, they are not eligible for any compensation for the shift they were refusing.”

7Having considered the submission of the Parties, I have concluded that Ms. Brusse is entitled to 50% pay for her shift on November 9, 2021. I do not agree with the Employer that Ms. Brusse’s actions of not taking a RAT and not returning to work constituted a refusal given the unique circumstances at the time when antigen testing and the reporting process was in the initial stages of a roll out as evidenced by the Muster notes of November 7 and 8, 2021 and where the Employer showed flexibility with staff difficulties in reporting RAT results noted in the November 8, 2021 memorandum from Doug Houghton. Although the issue of the RAT reporting process is not an issue in this case, it is an example of how the Employer was willing to accommodate staff, in the initial stages of the Covid screening and reporting process.

8Looking at Ms. Brusse’s circumstances, it was evident that she was unfamiliar with how to use the RAT kit, which she had just received and that she expressed her concern to her Employer that she did not feel that it was safe to perform the RAT within the confines of her car and was concerned about the bio-hazard chemicals contained in the RAT. She also thought it was possible to take the test inside her workplace as she had observed others doing so in the lobby, and even the Employer admitted that people had been testing in the lobby prior to November 9, 2021. Ms. Brusse was willing to take the RAT but asked for a safe place at work to administer the test rather than in her vehicle. While the Employer maintained that Ms. Brusse was given the option to go home, test and return to work, I am not convinced that Ms. Brusse understood that to be an option. Given Ms. Brusse’s situation, she was trying to perform the RAT safely on November 9, 2021 and the Employer’s reasonable response would have been to reimburse her for 50% of her pay that day given the fast-paced rollout of Covid RAT screening and reporting that had just been implemented at VCFW.

9Accordingly, the Employer is ordered to pay Ms. Brusse 50% of her salary for November 9, 2021.