HomeMy WebLinkAboutMurphy 95-10-10
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IN THE MATTER OF AN ARBITRATION
BETWEEN:
OAKLANDS REGIONAL CENTRE
The Employer
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ONTARIO PUBLIC SERVICE EMPLOYEES UNION, LOCAL 249
The Union
AND IN THE MATTER of the grievancè of William Murphy that his employment had
been unjustly tenninated.
Board of Arbitration
1. G. Thorne, Chainnan
Jane Roffey, Employer Nominee
Tammy Browes-Bugden, Union Nominee
Appearances for the Employer:
George Campbell, Consultant
Mary Spelling, Personnel Manager
Appearances for the Union:
Mitch Bevan, Grievance Officer
Sue Walker, President, Local 249
Brock Suddaby, Union Steward
William Murphy, Grievor
Hearings in this matter took place on September 20th and 21st, 1995, at Toronto,
Ontario.
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AWARD
The employment of Willi ani Murphy, a Heavy Cleaner at the Employer's facility in
Oaleville, was terminated on September 2nd, 1994. The Employer considered that it was entitled
to take this step in accordance with Article 10.05(g}ofthe collective agreement:
10;05 Seniority shall terminate and an employee shall cease to be erminate and an employee shall (
when he:
(g) is absent :ITom work for two (2) days or more without notice to the Centre and
without a reasonable bona fide excuse for such absence.
Two matters arose for decision at the outset of the hearing. One was a preliminary
objection on the part of the Employer that the grievance was untimely. It was not in dispute that
the grievance had been filed only on October 28th, 1994, approximately eight weeks after the
grievor's termination. It was also not in dispute that the grievance had been filed beyond the time
stipulated in the collective agreement, whether that time was within seven days of notice of
discharge under Article'9.07 C"a claim by an employee that he has been suspended or discharged
without just cause ...") or within 15 days under Article 8.04 (" ... ITom the date of the
circumstances giving rise to the grievance ... "). It was the Employer's position that there were no '
circumstances which should persuade us to exercise our discretion to extend the time for the filing
of the grievance and that the Employer had taken the position that the grievance was untimely as
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soon as it was filed. The Union's position was that the issue of timeliness had never been raised
until the beginning of the hearing and that the Employer had waived any right it might have to
raise the matter. Moreover the Union contended that the parties had discussed a process whereby
the grievor might return to work and that the question of his employment status was in abeyance
until the Employer offered, on October 24th, 1994, to re-employ the grievor on terms to which he
did not agree, after which the grievance was filed promptly; accordingly, in the Union's view, the
grievance was in fact' timely.
It was apparent that the parties disagreed about some of the facts said to be relevant to the
issue of timeliness. It was also clear that the circumstances said by the Union to justify the filing
of the grievance as late as October 28th were intertwined with the evidence which might be
relevant to the merits of the grievance. We therefore determined that we would hear the evidence
on all aspects of the matter and would reserve our decision about the timeliness of the grievance.
The parties were also in disagreement as to which of them bore the onus of proof and thus
as to the order in which evidence should be called. In the Employer's view, Article 10.05 (g) "
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provided for automatic termination of employment as soon as the bare facts set out in the article
had been established. This was not a discharge for cause and thus, the Employer maintained, was
not a situation in which the onus lay on the Employer as was usual in disciplinary matters. Rather,
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the onus was on the Union to make out its case as with any other alleged breach of the agreement.
As was usual in such cases, the Employer argued, the Union should lead evidence first. The
Union countered that the inclusion of the concept of a "reasonable bona fide excuse" in Article
1O.O5(g) in fact made cause for discharge a critical factor: it was for the Employer to show that
the grievor's excuse was not a reasonable one.
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While observing that the Employer had demonstrated that there was authority for its
position that the onus under a "deemed termination" provision was on the Union, we were
concerned to hear a more complete development of the argument that the particular wording of
this provision set up a requirement for just cause. We were also concerned to learn of any
decisions which might support the Union's position, such authorities not being available at this
stage of the hearing. Since it was undesirable in our opinion to delay the hearing for further
argument, we ruled that we would hear that argument at the conclusion of the case and make any
necessary ruling about the onus of proof in our award. In the meantime we considered the order
of proceeding to be primarily a practical matter. Since it was for the Employer to show at least
that the grievor had been absent for two days without notice; and either without an excuse o~m'
without one which the Employer accepted as reasonable (some of these matters being in dispute),
it was appropriate for the Employer to proceed and lead its evidence on those questions at least.
We indicated that if the evidence led by the Union raised further issues to which the Employer felt
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it must respond, we would be prepared to hear relevant reply evidence.
* * *
The sequence of events which preceded the grievor's termination is reasonably clear when
the evidence of all witnesses is considered. There remain differences of opinion over some
exchanges between the parties during the discussions which followed the termination, however.
The grievor was a full-time employee, a Heavy Cleaner in the Housekeeping Department. The
Department was supervised by an outside contractor, Versa Services. The supervisor appointed
by that contractor reported directly to Mary Spekking, the Employer's Personnel Manager. Mrs.
Spekking was the designated manager in charge during the time of the grievor's absence. On
August 31st, 1994, Sharon Twynstra, the contractor's supervisor, reported to Mrs. Spelling that
the grievor had not reported for his shift on that day and that she had not heard iTom him. Mrs.
Spelling did not try to reach the grievor that day, but did try to do so the next day, September
1st, when Ms. Twynstra again reported that the grievor had not been heard iTom. Mrs. Spelling
tried, to call the grievor at his last known phone number and learned that it was no longer in
service. She then called local Ïnfonnation to try to determine whether his number had been
changed or whether there was a new listing; she was advised that there was no listing for a
William Murphy.
On September. 2nd, Ms. Twynstra reported that the grievor had still not
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reported in. Mrs. Spekking checked with the grievor's shift leader to see if he had called in and
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was informed that nothing had been heard from him.
Article 14.02 of the collective agreement requires an employee to" ... make every
reasonable effort to give his/her manager or designate ,at least two hours' notice prior to the
commencement of his regularly scheduled shift if he is unable to report for work". As the grievor
confirmed when he testrned, he had made no call to anyone at the workplace before or during his
working hours on any of the three days. It is not in dispute that in failing to call in he failed to
meet the requirements of the Employer's attendance procedure.
On September 2nd Mrs. Spekking prepared a letter for signature by the Employer's
Executive Director, Bonnie McKinnon, which was sent to the grievor by registered mail. The
letter referred to Article 1O.05(g), stated that the grievor had been absent without notice on
August 31st, September 1st and September 2nd, 1994, and advised him that his employment was
terminated effective immediately. Explaining why she had taken this action at this particular time,
Mrs. Spekking wondered how long she would have to wait to hear a reasonable excuse from the
grievor, who had been absent without any communication for longer than the two days mentioned
in the agreement. ,On cross-examination she agreed that she had believed that there was no
reasonable excuse he could possibly come up with, and that she did not think that she had to wait
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for a reason ITom the grievor before tenninating him under the article.
One other event of significance occulTed on September 2nd. Ms. Twynstra had become
quite concerned about thegrievor's safety. She suggested to Mrs. Spelling that the police should
be sent to his home, and Mrs. Spekkingevidently acquiesced in this suggestion. There was
discussion about calling a female police officer who lived near the grievor and who had dealt with
the Centre on several occasions. Ms. Twynstra made this call and heard back from the officer
after the police had made a visit to thè grievor's home. Mrs. Spelling understood that Ms.
Twynstra heard ITom the police between 3 :00 and 4:00 p.m. on September 2nd, a Friday; Mrs.
Spekking had left work at 3:30 p.m. and did not learn the result of the call ITom Ms. Twynstra
until the next Tuesday following the Labour Day weekend.
The grievor himself described what had happened on the three days he was absent. He
was on a drinking binge. He had not called in to the Employer. On Friday the police had come to
his apartment. They told him that the Employer had sent them over to see if he was okay. He
described himself as pretty hung over but he told the police that he was all right. He also asked
them to pass on a message to the Employer that he would call in that evening. His evidence was
that he tried to call his supervisor later that afternoon but found that she was not there so that he
left a message on her voice mail.
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The grievor's next scheduled day of work was the following Tuesday, He had not
received the letter which had been sent to him on the Friday and accordingly went in to work at
ills scheduled starting time, 8:00 a,m.. After a short time Mrs. Spekking approached him and
asked him why he was at work since a letter had been sent to him terminating his employment.
He indicated that he was liot aware of the situation and Mrs. Spekking advised him that he would
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have to leave. He offered no explanation for his absence.
The grievor approached the president of the union local, Sue Walker, who went to see
Ms. McKinnon, the Executive Director, on or about September 8th. Ms. Walker testified that she
stated to Ms. McKinnon that both of them knew that the grievor had a drinking problem. She
asked if he could get his job back if he cleaned up ills act and got into a treatment program. Ms.
McKinnon responded that she was willing to meet with the grievor but wanted to hear ITom him
that he had a drinking problem and was willing to go for treatment. Ameeting was then held that
same afternoon and was attended by thegrievor, Ms, Walker, Mrs. Spekking and Ms. McKinnon.
Asked for an explanation for his absence, thegrievor said that he had called in to House Number
7 at the Centre on the Wednesday at 9:00 a.m. to say that he would be off sick. Asked what was
wrong with him, he said that he had had the flu. Ms. Walker described the grievor as "rambling"
during the meeting. She herself then brought up the fact that he had been on a drinking binge,
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which he then admitted. He agreed that he needed help. As will be seen, this was not the
grievor's first involvement in difficulties with the Employer over his drinking.
Nonetheless
arrangements were made for the grievor to go first to a detox centre and then to a treatment
centre in Timmins (the nearest location at which space could be found). The Employer made no
express commitment beyond agreeing to consider bringing the grievor back to work after the
period of treatment was over.
Ms. Walker testified that during this meeting she made it clear that the Union would put in
a grievance and proceed ftom there. Ms. McKinnon's response was that those present were there
to try to set up some help for the grievor - they wanted to help Bill with his problem. Ms. Walker
testified that this exchange indicated to her that the Union did not have to file a grievance right
then. Mrs. Spekking did recall having heard Ms. McKinnon saying that the grievor needed help,
but she did not recall any other aspect of the exchange testified to by Ms. Walker, explaining that
it was a long time ago. Ms. McKinnon was not called as a witness. Ms. Walker agreed that there
had been no written agreement extending the time for filing a grievance, although Article 8.08 of
the collective agreement spoke of written extensions. She also stated that the parties had not
usually put extensions in writing.
The grievor did attend and complete the treatment program which had been discussed.
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On October 24th, 1994, Ms. McKinnon and Mrs. Spelling together sent a letter to the grievor
referring to his having been "dehired" on September 2nd, and to the fact that the Centre would
review re-hiring him following completion of the program. The letter continued:
This letter will confinn our offer of the position as Full Time Heavy Cleaner at Oaldands
Regional Centre commencing Oct. 31, 1994, at a starting salary of$12.12 per hour.
The following are conditions of employment:
- three month probatiönaryperiod
- reporting to the Manager of your department upon arrival at work, or the Designated
Manager In Charge. This will continue fot a period of one year at which time this will be
re-evaluated.
- attends Alcohol Anonymous at least once a week, preferably more. The secretary,
along with his/her name, of the AA meeting will send a signed, legible note to the
Manager after each meeting to indicate your attendance and the date attended.
- if at any time it is suspected you are under the influence of alcohol you will agree to be
escorted by a member of the management team to the company physician, Dr. Estall, for
a blood test. If said blood test results indicate you have been drinking your employment
will cease immediately.
After a period of three months if the above conditions have been met on a continuous
basis the Centre will consider the following:
- placing you at your previous rate on the salary grid $12.68 with no retroactivity.
- granting you seniority, less September 2, 1994 to Oct 28, 1994, back prior to your
dishiring.
Please sign below to indicate that you understand and are in agreement with the above
terms. If the above terms are not met to the satisfaction of the Centre your employment
at Oaklands Regional Centre will cease to exist.
The conditions stipulated by the Employer were not acceptable to the grievor and the
Union. Mrs. Spelling understood that the Union had sought advice £Tom its head office and that
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two conditions in particular were unacceptable: the requirement to report to the Manager on
arrival at work, and the requirement for a blood test in the event that the influence of alcohol was
suspected.
Over the Union's objection, we allowed the Employer's representative to
cross-examine Ms. Walker about the reasons why the conditions were not acceptable. We
considered that such evidence was arguably relevant to the issue of the reasonableness of the
grievor's excuse for his absence trom work, the Union having sought to show that the Employer's
action in terminating him was unreasonable and unfair. In our view the arguable relevance of this
evidence to the central issue in the dispute overrode any privilege which the Union might assert -
an issue which the Union raised but which we did not expressly decide. Ms. Walker then stated
that "basically the whole document" was unacceptable, but in particular the two points mentioned
by Mrs. Spekking. She referred to the difficulty thegrievor might have in finding a manager on
occasion and to the fact that the designated manager could be another staff member who in her
opinion should not be asked to make a decision to require a blood test of the grievor. In place of
the conditions proposed by the Employer, Ms. Walker felt that involvement with a rehabilitation
program would be acceptable. As matters stood, Ms. Walker testified, she had understood that
the grievor would get his job back after he had received the treatment discussed in September.
When she found out that that was not to be the case she recommended that he grieve, and a
grievance was filed on October 28th.
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One further event following the grievor's termination must be mentioned. On November
1 st a step 2 grievance meeting was held. It was Mrs. Spekking's evidence that she told the union
representative present that the grievance was untimely. The only individuals she recalled being
present with her were the grievor and Ms. Walker. She produced notes which she said she had
made at the meeting. The notes began with careful printing as follows:
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Grievance
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Bill Murphy:
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Untimely.
Sept 2/94
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Sue, Bonnie, Bill
There followed a passage in Mrs.Spekking's shorthand which refelTed to the way in which
a report ITom the treatment centre was to be communicated.
Ms. Walker's evidence was that she had not been present;, at the'time she had been off
work recovering ITom surgery.
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Brock Suddaby, a union steward, testified that he was at the November 1st step 2 meeting
and that he did not remember anyone on the Employer's side bringing forward the issue of
timeliness. On cross-examination he agreed that it was possible the issue could have been raised.
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On November 15th, Ms. McKinnon wrote again to the grievor:
The letter of welcome and hire to Oaklands Regional Centre dated October 24, 1994
stands for the next month. We are committed to support you in your AA program.
Please let me know if you wish to sign this letter by December 15, 1994.
Mrs. Spelling and Ms. Walker both testified that no letter had been sent by the Employer
to the Union following the November 1st meeting (i.e. a letter indicating that the grievance was
denied), although the sending of such a letter was the normal practice.
As mentioned earlier in this award, the matter of the grievor's drinking had come to the
Employer's attention on previous occasions. Much of the Union's evidence in this regard was
adduced through the cross-examination of Mrs. Spelling.
She produced a summary of
information provided (with the griever's consent) to the treatment centre which the griever had,
attended following his termination. Relying on information in thegrievor's file and information
ITomhis supervisor, Ms. Twynstra, the summary mentioned that the grievor had from time to time
exhibited slurring of speech, tardiness, confusion, staggering, unreported absence, and an odou!
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of alcohol. It was recorded that co-workers had brought the grievor's drinking problem to the
Employer's attention in January 1991 and August 1994. Further, the grievor had been warned
about drinking on 11 occasions between March 1st, 1991 and May 24th, 1994. Mrs. Spekking
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did not know why the grievor had not been disciplined in connection with these matters (the
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warnings were not recorded in his personnel file) and she could not be sure whether any of his
previous unreported absences was for two days or more.
He had been given a three-day
suspension in July 1991, but she could not recall the reason for it. In March 1992, his then
manager had called in Mrs. Spekking and Ms. Walker to report that the grievor had come to work
with a smell of alcohol and was possibly under the influence. The grievor was brought in and
admitted that he had a problem with alcohol. Mrs. Spelling arranged for him to attend a
program with the title "Adapt", which he did while he continued to work.
Since his termination the position formerly occupied by the grievor had ceased to exist as
the result of a downsizing of the organization. That had occurred on March 31 st, 1995, and until
that date his position had been filled on a temporary basis by two individuals in succession. Mrs.
Spekkingagreed that had the grievor's employment continued he would have been elìgible for
recall ~s a ¡aid.-off employee, and she also believed that he would have been eligible for some form
of re-training under the Social Contract Act.
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With respect to the issue of the timeliness of the grievance, the Employer argued that the
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Union had simply made an unwarranted assumption in September 1994 that the time limits
stipulated in the collective agreement would not be insisted upon. The Union had not asked for
an extension, which the agreement in any event required to be in writing. The time limits in the
agreement were mandatory and there was a heavy onus on the Union to establish reasonable
grounds for an extension. On the evidence, the Employer argued, there was no justification for
relieving against the limit imposed by the agreement. The Union's view was that the Union had
never been put on notice that timeliness was to be an issue, and that the Employer must be taken
to have waived its right to insist on strict observance of the limit. The Union relied on Ms.
Walker's evidence of the exchange between her and Ms. McKinnon at the meeting on September
8th, 1994. The parties referred us to Re General Freezers Ltd. and United Steelworkers. Local
7455 (1983), 9 LA.C.(3d) 279 (O'Shea); Re COl:poration of the City of Toronto and Canadian
Union of Public Employees. Local 43 (1977), 16 LA.C.(2d) 123 (Abbott); and Re Rennie Inc.
and Amalgamated Clothing & Textile Workers Union. Local 740 (1993), 39 LA.C.(4th) 76
(Haefling) .
With respect to the onus of proof, the Employer submitted that there was a clear
distinction between a discharge for 'cause and an automatic termination under Article 10.05. The
termination was a non-disciplinary one which could be invoked by, the Employer when the
specified event occurred. The onus was on the Union to establish a breach of the collective
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'agreement. Turning to clause 10.05(g) itself, the Employer suggested that what was required of
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an employee who was absent was that he both phone in and give a good reason for his absence. It
was not open to an employee not to phone in and then later to rely on an excuse. By contrast, the
Union's approach to Article 10.05(g) was that the Employer must show both the absence of
notice and the absence of a reasonable excuse. Further, in the Union's view, the employee
involved must have an opporturtity to explain his absence before the clause could be relied on. In
this case, in the Union's submission, the grievor was tired before any explanation at all had been
considered.
Dealing with the conditions proposed by the Employer for the re-hiring of the grievor in
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October 1994, the Employer argued that conditions of this sort were regularly imposed when an
employee suffering ITom alcoholism was reinstated, and were in fact reasonable. In the course of
their submissions, the parties' representatives referred to Re Geiger International and, United
Broth~rh()od. ofC~wenters & .Joiner~.Lo,ca127 (1990), 17 LA.C.(4th) 13 (Davis); Re Oaklands
Regionalcentre and Ontario Public Service Employees Union and its local 249 (unreported,
October 24th, 1991, Brown); Re McKellar General Hospital and Service Employees Union.. Local
268 (1981), 30 LA.C.(2d) 229 (Prichard); Re Lafarge Canada Inc. and Energy & Chemical
Workers Union. Local 219 (unreported, March 16th, 1989, Weatherill); Re Acme Steel Co. of
Canada Ltd. and United Steelworkers. Local 6572 (1975), 10 LA.C.(2d) 393 (Weatherill); Re
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International Nickel, Co. of Canada Ltd. and United Steelworkers. Local 6166 (1971), 4
LA.C.(2d) 103 (Gallagher); Re Religious Hospitallers of Saint Joseph of Rotel Dieu of Kingston
and Ontario Public Service Employees Union. Local 465 (1991), 17 LA.C.(4th) 298 (Brent); Re
Kingsway Transports Ltd. and Knapton-Pain (1987), 28 LA.C.(3d) 70 (Hornung); Re The
Crown in right of Ontario (MinistrvofHousing) and Canadian Union of Public Employees. Local
767 (1994),39 LA.C.(4th) 1 (Stewart); ReCanadianBroadcasting Corp. and Canadian Union of
Public Employees (1986), 23 LAc. (3d) 107 (Thome); Re MacMiliand Bathurst Inc.. Whitby
Plant and International Woodworkers. Local 242 (1990), 12 LAC.(4th) 109 (Thorne); and Re
Compagnie miniere Quebec Cartier v. United Steelworkers of America. Local 6869 [1995] S.c.J.
No. 65.
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Dealing first with the issue of the timeliness of the, grievance, we have already indicated
that there was a period of approximately two months between the date of the grievor's
tennination and the filing of the grievance, and that the grievance was filed well beyond the limits
set out in the collective agreement. Moreover, there is no real dispute that the time limits in the
agreement are mandatory in effect. The time limits may, of course, be extended by the exercise of
our power under s. 45(8.3) of the Labour Relations Act if we are satisfied that there are
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reasonable grounds for the extension and that the Employer will not be substantìal1y prejudiéed by
it. An extension will not be granted lightly, and we accept the principle elaborated in several of
the cases that the reason for the delay must itself be reasonable}f we are to grant an extension of
time.
What took place at the meeting of September 8th, 1994, will be critical to our decision.
We have Ms. Walker's evidence that she expressed a readiness to file a grievance and that Ms.
McKinnon's response led her to believe that the Employer was content to focus on the issue of
help for the grievor rather than on the immediate filing of a grievance. Mrs. Spekking, who was
present at the meeting, did not recall anything that might, have been said about the filing of a
grievance. Ms. McKinnon was not called as a witness, and in these circumstances it is reasonable
to assume that her evidence would not have differed frOm that of Ms. Walker. Thus we accept
Ms. Walker's accqunt of what took place. We are doubtful, however, that there was a true
meeting ofrpinds about what was to 4appen: the Union later took the position that the discussion
amounted to an agreement to postpone the time for the filing of a grievance, while the Employer
considered that it had made no commitment beyond agreeing to consider re-hiring the grievor at a
later time. Weare unable to find that the parties had a common understanding of the course of
action that was to be followed. Nonetheless we do consider that Ms. Walker reasonably had the
understanding that the Employer did not expect a grievance to be filed immediately and indeed
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indicated that there was no need to do so. In our view this circumstance constituted a reasonable
ground for not filing the grievance within the time limit stipulated in the collective agreement.
Moreover, the Union did file a grievance promptly when it became apparent that the agreed
course of finding help for the grievor was not going to result in his reinstatement. In our view the
length of the delay was also reasonable in the circumstances.
There was an issue between the parties over whether the Employer had promptly raised
the matter of timeliness or whether it had failed to do so and might be barred ITom raising the
question. We believe that it is preferable to deal with the question of timeliness on its own merits,
and accordingly we do not find it necessary to deal with this further issue.
Turning now to the merits of the grievance, we must first consider the nature of the rights
and obligations created by Article 10.05. The position is most clearly understood if the whole of
the article is . set out:
10.05 Seniority shall terminate and an employee shall cease to be employed by the
Centre when he:
(a) voluntarily quits his employment with the Centre;
(b) is discharged and is not reinstated through the Grievance Procedure or arbitration;
( c) (i)' due to accident or illness if off work for the continuous period of eighteen (18)
months;
(ii) due to other causes such as lay-off if off work for a continuous period of ten
(10) months or the length of the employee's seniority, whichever is shorter; [sic]
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(d) fails to report his intention to return to work within three (3) days of receiving notice
of recall after lay-off, or in any event fails to report for work within ten (10) calendar
days after being notified by the Centre of such recall by registered mail at his last known
address;
( e) fails to return to work upon the termination of an authorized leave of absence unless
a reason acceptable to the Centre is given;
(f) accepts gainful employment while on a leave of absence without first obtaining the
consent of the Centre in writing;
(g) is absent trom work for two (2) days or more without notice to the Centre and
without a reasonable bona fide excuse for such absence.
A number of reported decisions have commented on the distinction that must be drawn
between a "deèmed termination" clause of this type and the protection which an employee has in
more general tenDS against dismissal without just cause. F or our purposes the most relevant
decision must be Re Oaklands Regional Centre andOPSEU (supra) in which Arbitrator Brown
analyzed the relevant provisions of a predecessor of the present collective agreement (provisions
which are unchanged in the current agreement) and reviewed several of the reported decisions. In
that case the Employer had invoked Article 10.OS(f) when an employee, unaware of the contents
of the article, had accepted employment elsewhere without obtaining the Employer's consent
while on a leave of absence.
The board found that a distinction must be made between
disciplinary action, which would have to be justified on the basis of just case, and action under
Article 10.05, under which the parties had agreed that the happening of a specified event would
bring about the specified result of termination. A particular issue in that case was whether, in the
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particular circumstances, the board had authority to modify the drastic effect of the grievor's
innocent mistake. The board found that, in contrast to a disciplinary, termination in respect of
which the board could mitigate the penalty by virtue of its authority under the then s. 44(9) of the
Labour Relations Act, the application of Article 1O.05(f) " ... arises as a matter of an agreed
provision of the collective agreement which ... the Board cannot alter, modify or amend." (p. 10).
It has not been argued in the present case that the somewhat different provisions of s. 45(9) of the
Act as it is now would permit us to modify the penalty if the terms of Article 10.05 are met.
We agree with the distinction drawn by the board in the previous Oaklands case, and
observe that the distinction between discharge for cause and the provisions of Article 10.05 is
made in Article 1O.05(b) itself: a discharge for cause is implicitly recognized as a different
process entirely from the deemed tennination provisions of Article 10.05.
The particular provisions of Article 10.05(g), however, require further consideration.
Whether an individual has been absent ITom work for a defined period and whether notice of the
absence has been given are facts that can be detennined on an objective basis. The introduction
of the concept of a "reasonable bona fide excuse" for an absence may make the determination
more difficult and may affect the nature of the onus which must be borne in establishing a breach
of the collective agreement. Since the parties differed on the nature of the onus of proof, we will
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deal with it briefly here. We must say, that the cases to which our attention was drawn do not
seem to present a consistent picture. In Re Canada Packers (supra) which involved consideration
of ,a form of "deemed termination" clause, it was indicated (at p. 194) that an interim award had
found that the Union had the onus of proof. However, in Re Geiger International (supra), another
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II deemed termination" which was also relied on by the Employer, the picture was somewhat less
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clear. At the outset of the hearing the Union and the Employer had differed as to which party had
the onus, and the Union proceeded first without conceding that it bore the onus (pp 16-17).
However on page 22 the following statement appears:
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The issue here is not whether the company had just cause for the grievor's termination
and the company conceded that no issue could be taken with the bona fides of the reason
for the grievor's absence. The onus is on the company to establish that there was a
failure by the grievor to comply with art. 9.03(c) and if that onus is discharged this
tribunal has no jurisdiction to ameliorate the consequence of termination.
Article 9.03(c) in that case provided for a deemed termination if an employee failed" ... to
report for work for three (3) consecutive working days and fails to notify the Company' during
such period of the reason for his absence." (p. 14)
In our opinion the dispute between the parties in this area was as much over a matter of ~~
procedure as over who bore the legal onus of proof; each party was concerned to have the other
lead evidence first and thus disclos,e the case that had to be met. Some brief remarks can be made
about the nature of the onus, however, since the parties have framed the issue in that way. One
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23
llÙght expect that the ultimate onus in a case in which the Union alleges a breach of the collective
agreement ,by the Employer must be on the Union. However in the process the onus may shift,
depending upon the nature of the facts which have to be proved. The following quotation ITOm
Wigmore on Evidence cited in the discussion of this topic in The Law of Evidence in Civil Cases
(Sopinka and Lederman, Butterworths, 1974), at page 395, is helpful:
(1) That the onus is always on a person who asserts a proposition or fact which is hot
self evident; and
(2) That where the subject matter of the allegation lies particularly within the knowledge
of one of the parties, that party must prove it, whether it be of affirmative or negative
character.
Applying these considerations to Article 10.05(g) we would comment, as we did at the
hearing, that the proof of an absence ITem work for a defined period, the absence of notice, and
- the absence of an excuse (if those matters are in dispute) - are assertions which must be proved by
the party making them, i.e. the Employer. That circumstance suggested that the Employer should'
proceed first to prove at least those facts. Yet the Employer could produce only limited evidence
of the reasonableness or good faith of any excuse which might be offered. The Employer's
witnesses would likely be able to speak only of the impression given by the grievor's excuse. The,
facts that llÙght show the excuse to be reasonable and bona fide, however, might be particularly
within the knowledge of the grievor. It might therefore be said that, once the Employer had led
evidence to establish the fact of the absence, lack of notice, and lack of an excuse which appeared
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24
reasonable to the Employer, the onus would shift to the grievor to show that his excuse was
reasonable and bona fide. It seems to us that the order of proceeding established at the outset of
this hearing enabled the shifting nature of the onus to be dealt with in a logical way.
Apart from the question of the onus of proof, the presence of the expression "reasonable
bona fide excuse" in the article presents a problem of the extent of the meaning to be attributed to
the phrase. Some of the evidence on which we were asked to rely was of the sort that might be
presented if the issue was one of whether there was just cause for the discharge of the grievor.
As we have remarked, terminations under Article 10.05 are distinct from terminations which must
be justified on the basis of just cause. It seems unlikely, therefore, that the parties would intend
the concept of a "reasonable bona fide excuse" to import just cause protection without making
some explicit provision to that effect. We are inclined to think that the intention behind the
introduction of the phrase into the article had a more restricted purpose, along the lines of simply
protecting an aÞsent~mployeefroman arbitrary termination.
If this were a situation in which just cause were in issue, the Employer's past actions in
connection with the grievor's drinking problem, and the grievor's own past success or failure in
dealing with the problem, would be critical in determining whether there should be reliet against
termination. However this is not a just cause situation, and reasonableness in the present context
.
25
must relate more directly to the particular absence involved. The sort of reasonable excuse
addressed in the article, we would think, might involve an employee's being involved in an
accident, detained somewhere against his will, or cut off by problems of transportation or
communication - in other words, a situation not of his own making. We would have more
difficulty in finding that being on a drinking binge, by itself, was a reasonable excuse. It is not
possible to be categorical about what may be a reasonable excuse in the circumstances,
particularly where a drinking problem is involved.
We are well aware of the concept of
alcoholism as a disease, which may diminish an individual's personal responsibility in a given
situation. Usually in cases in which it is suggested that a person suffers ITom alcoholism, medical
or other evidence is presented to substantiate this. In the absence of more substantial evidence
than we have in this case, it is not reasonable to assume that the grievor's lmown drinking problem
'amounted to alcoholism so severe that he was incapable of making the decision to come to work.
We do not exclude the possibility that alcoholism, properly made out,' might amount to a
reasonable bona fide excuse under Article 1O.O5(g).
It is interesting to note that, since
considerations of just cause would not be in play, the simple establishment of a reasonable bona
fide excuse would probably entitle an employee to be reinstated without conditions. A remedy
fashioned to the grievor's circumstances would probably not be possible in the absence of the
usual considerations suITounding a reinstatement found to be without just cause.
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However it is our view that this case must be resolved on another aspect of the
administration of Article 1O.O5(g). As noted earlier; the parties differed over the time at which a
reasonable excuse must be brought forward. The Employer read the clause as requiring an absent
employee to provide both notice of his absence and a reason for it before two days of absence had
gone by. ,The Union's reading of the clause wouldpennit an excuse to be offered later. Given our
view of the intent of this clause - that it was intended to take account at least of absences beyond
an employee's control whichmight include his being unable to communicate with the Employer -
we consider that it is open to an employee to meet the requirements of the clause by providing an
explanation after the event. Whether the reason should be provided during the absence or may be
provided later will, òf course, depend on the circumstances and obviously a reason must be
supplied as soon as the employee is able to do so. On the Employer's side in the present case it
may be said that the grievor was given an opportunity to explain his absence when the Employer
met with him on September 8th, 1994, and that he then gave a false explanation before finally
coming forward with the true reason for his absence. The evidence shows, however, that the
decision had been made before the Employer learned of the reason for his absence so that it could
have had no effect on the decision. It is correct to say that the decision was made without any
-
consideration of the reasonableness or otherwise of the grievor's excuse. Mrs. Spelling was
frank in her testimony that she did not think that there could be a reasonable excuse. As we have
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.
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27
said, whether the excuse must corne forward during the period of absence or later will depend on
the circumstances. In view of her knowledge of the grievor's repeated difficulties with alcohol in
the past, the circumstances might have indicated to Mrs. Spelling that it was possible that the
grievor's absence had something to do with that problem and that she might have an opportunity
to hear his explanation. We also cannot ignore the fact that she was aware of his supervisor's
concern about him, and that the police were to he asked to visit his horne, so that she might well
have expected to learn something of the grievor's situation in a very short time. Yet she acted
before she heard anything of his excuse and indeed believed that he could not produce a
reasonable one. On that basis alone, in the circumstances of this case, the requirements of Article
lO.O5(g) were not met, and the deemed termination of the grievor could not be effective.
The result must be that the grievor must be reinstated without loss of seniority or
earnings. It is more COITect to say, in fact, that his employment never ceased. It would seem to
follow that the grievor must have the benefit of any ,entitlements he would have had as an
employee whose employment continued, including appropriate back pay, any recall rights he may
have (his position having been eliminated), and any entitlement he may hàve to retraining. We
"
28
retain jurisdiction with respect to all,aspects of the implementation oftllS award.
Dated at Kingston, Ontario, this 10th day of October 1995.
I ~E>HOUr/ dissent
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¿." 1. G. Thorne, Arbitrator
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Jane Roffey, Employer Nominee
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I concur!àiasei'lt
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Tammy Browes-Bugden, Union Nominee
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OAKLANDS REGIONAL CENTRE
(the "Employer")
. and -
ONTARIO PUBLIC SERVICE EMPLOYEES UNION
LOCAL 249
(the "Union)
GRIEVANCE OF WILLIAM MURPHY
DISSENT OF JANE Á. ROFFEY
EMPLOYER NOMINEE
With respect, I am unable to agree with the findings and conclusions of my ,
colleagues concerning the disposition of this grievance as it relates to the
reinstatement of the grievor without loss of seniority or earnings.
Before dealing with that issue however, I would say, in passíng, with
respect to the matter of timeliness by the Union in filing this grievance that I can
understand how my colleagues arrived at their decision to grant an extension of
fune. There was a lack of clarity at the September 8, 1994 meeting between the
parties as to process. However1 given the specific mandatory provisions of the
Collective Agreement, coupled with the fact that there was no conunon
understanding as to the course of action to be followed, r can only conclude that
the Union made an unwarranted assumption as to the right to delay the filing of
the grievance. At the very least the Union should have pursued "their
understapding" in writing with the Employer in order to meet their initial
obligations under Articles 8.06 and 8.08 of the Collective Agreement.
Turning now to the merits of the grievance, Article 10.05 of the Collective
Agreement provides in part:
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Seniority shall tenninate and an employee shall cease
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(g)
is absent from work for two (2) days or more
without notiçeto the Centre and (emphasis
added) without a reasonable bona fide eXCuse
for such absence."
In my view Article 1 0.05 (g) clearly establishes a cònsequence (tennination
of employment) and obligations which must be fulfilled in order to avoid that
consequence. The obligation is solely that of the employee concerned, not tb,e
Employer.
The majority of the Board has determined that an employee, dependiIlg
upon the circumstances sunounding his or her absence from work, can
communicate the "bona fide excuse" at any titne after the event. This
interpretation imposes an obligation on the Employer to wait until an unspecified
date sometime ill the future to hear from the Griever. With respect, this in my
view, amounts to an amendment of Article 10.05 (g) of the Collective Agreement
and provides an interpretation of the language which it can not reasonably bear.
Article 10.05 (g) must be read as a whole. An employee who is absent
fcom work has two obligations under this Article in order to avoid the consequence
of termination. The employee must give notice to the Employer and must provide
a reasonable bona fide excuse. The "two days"m my 'View qualifies both the
notice and bona fide excuse requirement. To read it othezwise, ignores the word
"and" in Article 10.05 (g).
There is no dispute on the evidence that the Grievor did not notify the
Employer as to his absence from work or even attempt to contact the Employer -
to provide an explanation within the two days specified in Article 10.05 (g).
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Accordingly, I would have found that the Employer did not violate Article
10.05 (g) of the Collective Agreem~nt and that the termination pursuant to this
Article ought to have been upheld.
All of which is respectfully submitted.
DATED this - day of Decem.ber. 1995.
Jane A. Roffey