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HomeMy WebLinkAboutMcKenzie 01-07-30 IN THE MATTER OF AN ARBITRATION BETWEEN: Regional Municipality of Halton - and - OPSEU (Grievance of Shirley McKenzie) Before: William Kaplan, Chair Michael Riddell, Employer Nominee Pamela Munt-Madill, Union Nominee Appearances For the Employer: Patricia Murray Hicks Morley Hamilton Stewart Storie LLP Barristers & Solicitors For the Union: Mitch Bevan Grievance Officer OPSEU This matter proceeded to a hearing in Oakville on May 10, 2000 and June 14,2001. 2 Introduction The Allendale Nursing Home (hereafter "the employer" or "Allendale") is owned and operated by the Regional Municipality of Halton. The grievor, Shirley McKenzie, was employed as a part-time.Health Care Aide. The grievor had a full-time job with another employer; her hours and frequency of work at Allendale varied. The shift schedule for part-time employees was posted four weeks in advance, and the employer allowed , employees, including part-time employees like the grievor, to switch shifts. The grievor took advantage of this policy and, in the six months prior to the incident detailed below, the grievor only worked four shifts. In any event, the grievor was scheduled to work Apri13 & 4,1999 - the Easter weekend. As it turned out, the grievor had more than six weeks notice that she would be working on April 3rd and had at least four weeks notice that she would also be assigned the second day - the 4th. At the end of March, the grievor made separate requests - several days apart - to take these days off "for vacation." At least nine other employees had had similar requests denied. The evidence establishes that Easter weekend is a busy time at the employer with many visitors to the home. According to Ms. Karen Pow, the Manager of Resident Care, .who made notes of her conversation with the grievor, she explained to the grievor that many other requests had been turned down, that it was too late to request vacation - she looked at the schedule and determined that coverage could not, at that late date be arranged - and further advised that if the gritivor wanted to take the time off, that she would have to arrange her own replacement. Ms. Pow testified that the grievor then said: "Do you 3 expect me to change my vacation to see my mother for Allendale?", adding that she "would just have to quit," and as she was employed full-time elsewhere, that she did not "need this hassle." The grievor was informed that she was expected to attend at work as scheduled. It is the employer's expectation and it is the workplace practice that employees are responsible for filling their scheduled shifts. However, thegrievor did not show up for work and was, initially, teI'IIlinated. Later the employer rescinded the dismissal and substituted a suspension. Ms. Pow testified that the grievor never said anything to her about an ill mother when she made her vacation request. Ms. Ingrid Johnston, the Director of Resident Care, testified that the first she heard of an ill mother was during the grievance procedure. She also testified that unscheduled absences like this require overtime staffing and, more importantly, have a direct impact on patient care. Ms. Johnston also testified that she made a number of efforts, once the decision was made to rescind the termination, to contact the grievor and it was only after she was sent a registered letter on June 9, that the grievor contacted the employer and a meeting was arranged. At that meeting, on June 15, the grievor advised that she would not be able to return to work until later in the month. A grievance was filed with respect to the dismissal (suspension) and that grievance eventually proceeded to arbitration. The grievor testified that while no mention of this was made in her written request for vacation, she needed the time off to visit her sick mother in New York and that she specifically advised Ms. Pow of this. The grievor felt as if she had no choice but to go and visit her mother in these circumstances. No 4 substantiating evidence of this illness was provided however. In the grievor'sview, the employer took an inordinate time in rescinding the termination and directing her back to work, so much so that even after the suspension was served the grievor missed a number of other shifts before she was actually in a position to begin performing her duties. The grievor sought that the suspension be set aside and that she be compensated for both the shifts missed during the suspension and the shifts missed after the suspension was served but prior to her scheduled return to work. In total compensation for some ten shifts was requested; Employer Argument In the employer's submission, the evidence was perfectly clear that management could not, for bona fide operational reasons, grant the grievor's late request. Obviously a credibility determination had to be made, and employer counsel took the position that its evidence should be preferred. It was pointed out that the grievor did not indicate in her written requests that she needed the time off to visit her sick mother. Instead, she asked for time off for vacation. While the grievor had an explanation for this - that she did not wish to reduce her personal circumstances to writing - the employer took the position that Ms. Pow's evidence should be preferred, and it was pointed out that Ms. Pow kept notes of her conversation with the grievor. At no time, according to Ms. Pow, did the grievor indicate that she needed to visit her sick mother. Referring to the grievor's written vacation requests - and two were submitted asking for the days off, counsel suggested that it was odd that the grievor requested the days off independent of each other and made those requests several days apart. It was also odd, in employer counsel's view, that the grievor misspelled her own name on one of th,e requests. For 5 all of these reasons and others, the employer suggested that the evidence of its witnesses be preferred. In management's view, the grievor was simply not interested in working for the employer - her attendance record in the period prior to her termination/ suspension was proof enough of that. This was exacerbated by the grievor's failure to show up on two scheduled shifts - a failure that deserved, employer counsel argued, discharge. Instead, the employer gave her another chance. There was, in the employer's submission, more than sufficient just cause for a lengthy suspension - the grievor deliberately failed to show up on one of the busiest weekends of the year demonstrating insubordination and then fabricated an explanation - and there was no reason, in the overall circumstances of this case, to compensate the grievor for shifts "missed" between the end of the suspension and her actual return to the workplace. Employer counsel suggested that a number of principles could be gleaned from the cases. First, that employees who take vacations notwithstanding denial of permission do so at risk of discharge. Second, that even when employees have what appear to be compassionate grounds for their actions, failure to obey lawful orders to attend at work is a serious matter justifying the imposition of serious sanctions. And third, that employees in health care industries who are away without leave detrimentally affect patient care and that can justify termination. A number of authorities were cited for these principles: Rio Algom and United Steelworkers (1982) 6 LAC (3d) 164, Black Diamond Cheese and Canadian Food & Allied Workers (1973)3 LAC (2d) 151, Canada Safewayand Retail Clerks Union (1982) 3 LAC (3d) 193, lndal Products and United Steelworkers (1975) 10 I 6 LAC (2d) 374, Canadian Forest Products and Industrial, Wood & Allied Workers of Canada [1977] a.c.c.A.A. No. 99 and Extendicare (Canada) and CUPE (1998) 77 LAC (4th) 74. In all of the circumstances, therefore, the employer argued that it acted with just cause and that the suspension should be allowed and that the claim for compensation dismissed. Union Argument In the union's submission, the employer ~verreached and should not have terminated and then suspended the grievor for going to visit her sick mother. Mr. Bevan took the position that the employer should have granted the leave. He also noted that the grievor had nine years of service, no discipline on file, and had never previously been disciplined for missing shifts. While it was true enough that the employer later rescinded the termination, it was also true that it waited an inordinate length of time to do so. When it finally did, it presented the reduction of penalty as an offer to the grievor who, not accepting it, did not respond to it. Instead, quite legitimately in the union's view, the grievor decided to pursue her grievance. The employer later directed the grievor to return to work, but the result of all of this activity was a further delay and significant financial loss to the grievor. Had the termination been rescinded earlier on, and had the grievor been directed back to work, instead of the employer, as it did, offering to settle her grievance on this basis - the grievor would not have lost shifts after the suspension was served. Surely, Mr. Bevan argued, the grievor should not bear the financial consequences of this and, at the very 7 least, the grievor should receive compensation for shifts missed after the suspension was imposed and before she actually returned to work. Accordingly, for all of these reasons and others, the union asked that the grievance be allowed and appropriate relief granted. Decision Having carefully considered the evidence and argument of the parties, we are of the view that the grievance should be dismissed. The evidence establishes that the grievor had, or could have had, lengthy notice of her schedule. She could have advised the employer that her mother was sick and requested a leave on that basis. Instead, she asked if she could have vacation and we accept and prefer the evidence of Ms. Johnston and Ms. Pow that the information about her mother was not advanced until after discipline was imposed. The grievor was informed in advance that there would be consequences for not coming to work and she decided not to show up in any event. While there is no evidence that patient care was jeopardized in the result, the evidence does establish that the grievor had other priorities than her job at A1lendale. We need not express a view whether termination was appropriate in these circumstances since the employer decided to rescind the termination and substitute a suspension instead. It is noteworthy that the authorities, in general, treat this type of behaviour as a very serious matter. That suspension was clearly imposed with just cause and on this basis the grievance is dismissed. The only matter outstanding is the union's claim on behalf of the grievor that she be compensated for the shifts she missed between the time the termination was rescinded 8 and a suspension imposed and her actual return to work. After the termination was rescinded there was a time lag before the grievor was directed to return to work. However, it should be pointed out that the grievor worked very few shifts prior to this incident. Indeed, as noted at the outset, the grievor only worked four shifts in the six months prior to the discipline. There is really no reason to believe, in this particular case, that had there been less of a time lag between rescinding the termination and imposing the suspension and the grievor's ultimate return to work that the grievor would have actually worked the shifts notionally missed. The grievor's work history supports this conclusion. At the time the hearing was concluded, the grievor was no longer in the employ of the employer and she not attend the second day of hearing. Simply put, this is not a case for compensation. Accordingly, and for the foregoing reasons, the grievance is dismissed. DATED at Toronto this 30th day of July 2001. ¿ì1/ I --- William Kaplan, Chair "Michael Riddell" Michael Riddell, Employer Nominee I dissent. Dissent attached. Pamela Munt-Madill, Union Nominee , ,,~., . . -" DISSENT I disagree with one aspect of the Majority's decision, that is, their decision to decline to award the Grievor compensation for the shifts she missed in excess of the six-day suspension. The employer took the position before the Board that a six-day suspension was justified. This Board, by unanimous decision. has concluded that a six- day suspension is a justifiable penalty. It is not, however, open to the employer merely by administrative tardiness to impose a greater penalty than that. If this were the case, any employer could merely wait ten months before implementing a two-day suspension and thereby attempt to eradicate the Grievor's collective agreement right to have the justness of their actual penalty reviewed by a third party. It is a question of fact what length of suspension has been imposed by the' employer. It is not within the employer's discretion to characterize what happened here as a six-day suspension. Furthermore, it is not a question of the Board exercising its discretion to relieve the Grievor, rather it is a question of the Board implementing its award. That award was the upholding of a six-day suspension. In conclusion, I agree with the Majority's finding that a six-day suspension is a reasonable employment sanction in light of the circumstances of this case. I disagree with the Board's refusal to grant the Grievor compensation for the shifts missed In excess of six days. This constitutes, in my view, the institution of a longer than six-day suspension. That is not an option open to this Boa'rd. I would therefore have upheld the six-day suspension and granted the Grievor compensation for the shifts missed in excess of that period.