PSGB# P-2017-2592

IN THE MATTER OF AN ARBITRATION

Under

THE PUBLIC SERVICE OF ONTARIO ACT

Before

THE PUBLIC SERVICE GRIEVANCE BOARD

BETWEEN

Dougan

Complainant

• and -

The Crown in Right of Ontario (Ministry of Community Safety and Correctional Services)

Employer

BEFORE

Brendan Morgan

Vice-Chair

FOR THE COMPLAINANT

John Hasted

FOR THE EMPLOYER

Shiran Brener Treasury Board Secretariat Legal Services Branch Counsel

HEARING

August 15, 2018

INTERIM DECISION

1The Complainant, Ms. Adrienne Dougan, filed a complaint with the Board with respect to her employment with the Employer, the Ministry of Community of Community Safety and Correctional Services (“CSCS” or the “Employer”).

2The Complainant has at all relevant times been employed as a Sergeant at the Employer’s Ontario Correctional Institute (“OCI”) located in Brampton, Ontario.

3On November 22, 2017, the Complainant filed a Form 1 complaint regarding the “working conditions and standards” of her employment” at the OCI. The Board processed the complaint in its usual fashion and it was assigned Board File Number P-2017-2592.

4Specifically, the Complainant alleged that the Employer had engaged in discriminatory behaviour towards the Complainant by refusing to accommodate her request for a modified shift schedule. The Complainant identified a medical condition as the reason for the modification of her shift schedule.

5In its Form 2 response the Employer stated that they were aware that they had a duty to accommodate the Complainant. The Employer further submitted they had met this responsibility to accommodate the Complainant pursuant to certain information that they had received from the Complainant’s Physician. As a result the Employer requested that the complaint be dismissed.

6The Employer also indicated that should a hearing be scheduled they intended to pursue a preliminary objection that the complaint should be dismissed as it was filed “outside of the mandatory time limits”. The Employer further submitted that it intended to rely upon the timeliness provisions described in Regulation 378/07 (the “Regulation”) of the Public Service of Ontario Act, 2016 (“the Act”).

7A mediation session was scheduled by the Board for August 15, 2018.

B. THE MEDIATION

8The parties attended at the Board on August 15, 2018. The Complainant’s advisor Mr. John Hasted, participated in the mediation via teleconference call.

9At the conclusion of the mediation session the parties agreed that another day for mediation should be scheduled subject to certain directions of the Board described below.

10Further, the Board advised the parties that should the attempt at mediation prove unsuccessful a hearing would commence subject to the direction of the Board described below.

C. DIRECTION TO THE PARTIES

11The Board shall schedule a further mediation session with the parties in the usual fashion.

12Should attempts at resolving this dispute during mediation prove unsuccessful an arbitration hearing shall commence on the same date.

13Further, should the attempts at resolving this dispute during mediation prove unsuccessful and a hearing commence on the same date the first issue before the Board will be the Employer’s preliminary objection that that the Complainant’s complaint was filed in contravention of Regulation 378/07 of the Public Service of Ontario Act, 2016.

14The Employer’s preliminary argument is described in paragraph 1of the Form 2 –Response.

15On or before September 28, 2018, the Complainant will:

a) Send the Employer and the Board a copy of the email documents the Complainant relies upon with respect to her allegation that Supervisor David Ruttle disclosed her accommodation information throughout the workplace.

b) Provide detailed particulars to the Employer and the Board describing how the Employer has failed to accommodate her shift schedule request and, further, how she has been discriminated against by the Employer.

16On or before September 28, 2018, the Employer will:

a) Send the Complainant and the Board a copy of all completed “Overtime Shift Offer” documents from the period of September 28, 2017 until the date of the September 7, 2018 that the Employer relies upon with respect to their position that the Employer has offered the Complainant overtime shifts. Further, the Employer shall provide documentation as to how the Complainant responded to these offers.

17On or before October 12, 2018, the Employer will:

a) Send the Complainant and the Board all authorities it intends to rely upon with respect to its preliminary objection as to the timeliness of the Complainant’s complaint.

18The Board shall propose dates for the continued mediation and potential arbitration hearing of this matter through the Registrar’s Office in the near future.