HomeMy WebLinkAboutPhelan 15-11-161
IN THE MATTER OF AN ARBITRATION:
BETWEEN:
ONTARIO PUBLIC SERVICE EMPLOYEES UNION (the Union)
AND
PROVIDENCE CONTINUING CARE CENTRE – MENTAL Health
RE: GRIEVANCE OF PHELAN, LOCAL 431 – GRIEVANCE NUMBER: 2013-0431-0008
Appearing for the Union: Peggy E. Smith
Appearing for the Employer: Ron Pearson
Sole Arbitrator: Norm Jesin
Hearings Held: February 27, 2014, June 25, 26, 2014, July 10, 2014,
December 3, 16, 2014, January 12, 2015, April 15, 2015,
June 16, 2015 and August 26, 2015.
AWARD
The grievance in this case alleges that the grievor was discharged from his employment
without just cause. The grievor’s employment was terminated by letter dated April 12, 2013.
The primary allegation giving rise to the grievor’s termination was that he was abusing sick
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leave by working for another employer while being absent from work and receiving sick leave
benefits from December 19, 2013 to March 8, 2013.
The grievor claims that he was absent from work due to situational stress and that while
he could not work for the Employer, he was able to continue working elsewhere. He further
states that he did not know that he could not be in receipt of sick benefits while working
elsewhere.
The facts giving rise to the grievance are as follows:
The grievor commenced employment with the Kingston Psychiatric Hospital in 1988. In
2001 that hospital was converted to the facility presently operated by the Employer. At the
time of the conversion the grievor was severed but re-hired by the Employer to work in the
kitchen. In or about 2007, the grievor became a cleaner on a temporary full time basis and
became permanently classified in that position in 2008. Until the termination of his
employment in 2013, the grievor had no discipline on his record. The grievor became a steward
in 1998 and held various union positions since then, including temporary local president. In
2012, the grievor was chief steward.
The Employer operates three sites, including a mental health site, a forensic site and a
long term care facility. The grievor was a cleaner at the mental health site. Darlene Martinali is
the manager of housekeeping at the mental health site and Ian Fraser is a housekeeping
supervisor at that site. Mr. Fraser reports to Ms. Martinali and he was the direct superviso r of
the grievor during the period relevant to this case.
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Ms. Martinali testified about the importance of housekeeping generally and the cleaning
function in particular at the mental health site. She introduced the cleaner job description – a
four page document setting out the skills and qualifications necessary to perform the job so as
to maintain a clean and infection free facility. According to Ms. Martinali, the Employer seeks to
maintain cleanliness standards according to Best Practices as set by the provincial Infections
Disease Advisory Committee. Those best practices consist of 5 pages of standards for cleaning
virtually every item found in a patient’s room.
In order to ensure those practices were being met the Employer undertook an audit
program commencing in or about 2003. Under the audit program, each item in the room is
listed and employees are marked as to whether they have cleaned the item to the appropriate
standard. Employees are expected to achieve an 85% success rate for meeting the stand ards of
cleanliness. The audit is not used for disciplinary purposes. If the employee does not meet the
required standard, the audit result may be referred to in a regular employee appraisal. If an
employee does not achieve 85%, corrective action is taken to assist the employee to be able to
meet the standard in future.
When the audit was first introduced employees, including the grievor, did not
particularly like the audit. The grievor felt the audit was unfair and that if there was to be an
audit at all, the grievor felt that the audit should be conducted for a team, and not for
individual employees. He also thought that the audit was unfair as it was only this department
of employees that was being audited. As a result of these concerns the Employer ceas ed
auditing the cleaners in or about 2006. However, in 2012, the Employer implemented the
audits once again.
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Until 2012, there had been no complaints about the grievor’s work. Once the audits
commenced again in 2012, things changed. According to Mr. Fraser, all other employees who
were audited were able to achieve the required 85% standard of task completion. However,
when the grievor was first audited the grievor was only able to reach a standard of
approximately 75%. As a result Mr. Fraser began to monitor the grievor’s performance in an
attempt to ensure he was reaching the required 85% standards. Unfortunately , according to
Mr. Fraser, the grievor’s performance was deteriorating. It was Mr. Fraser’s view that the
problem stemmed from the fact that the grievor was being uncooperative with the audit
procedures and with the goals of the audit. By October of 2013, the grievor was achieving only
about 50% of the required tasks on his audit. In a discussion with Mr. Fraser, the grievor had
stated that he had never been properly trained in the best practices procedures. As a result Mr.
Fraser decided that the grievor would receive training on the proper cleaning procedures
commencing October 29, 2012. On that day, the grievor and Mr. Fraser discussed the
procedures and how the grievor would conduct his cleaning for the upcoming week. However,
during that week, on November 2, 2012, the grievor went off on sick leave until November 20,
2012. The grievor stated in his evidence that he was off that period of tim e because of a
complicated tooth extraction.
It should be noted that during 2012, the grievor was going through a number of
personal difficulties. His mother had had a stroke in 2010 and he was taking care of her. In
2012, he separated from his wife and he was going through financial difficulties. He was now
living with his mother and in his words, they were taking care of each other. In order to
alleviate his financial situation he had undertaken two additional jobs. He was working as a
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cleaner for Zellers in the evenings 20 hours per week. He was also doing independent contract
cleaning, including supervision, for a cleaning contractor known as Jerm Free. In his evidence he
has stated that he had informed Ms. Martinelli that he was working for Zeller’s an d that she
had allowed him to work a flex time schedule in order to accommodate his schedule at Zeller’s.
He quit his job at Zeller’s in December of 2012, but continued to work at Jerm Free after that.
On November 20, 2012, the grievor returned from sick leave. On that day he was
working alone. Near the end of his shift he sent Mr. Fraser an email message setting out the
work he had done to that point. Mr. Fraser was shocked. None of the patient rooms had yet
been cleaned. As a result he said he would be spending all of the next day working with the
grievor to ensure he was able to get his work done. Over the next number of days there were
times when the grievor was closer to completing his tasks and there were days when he was
unable to get much of his cleaning done. During this time Mr. Fraser learned that the grievor
had indeed been trained when he first became a cleaner, although the best practices program
had not been implemented at the time he was trained.
The grievor’s last day worked was December 19, 2012. On that day he was working with
Mr. Fraser. Mr. Fraser gave him an instruction regarding his cleaning procedure. According to
Mr. Fraser, the grievor stopped what he was doing and began to write a note. Mr. Fraser
ordered the grievor to stop writing and to complete his task. At that point the grievor became
upset and pushed his cleaning cart against a wall. He then left the area and went to see the
occupational health nurse. The grievor claimed that he was being harassed and that he was
very upset. The Nurse agreed that the grievor should go home at that point. Two days later, the
grievor called Ms. Martinali and told her he had had an incident with Mr. Fraser and claimed he
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was being harassed. He stated that he was under stress and was unable to at tend work. Ms.
Martinali requested that he obtain medical documentation that he was unable to work. As a
result he visited his doctor, Dr. Stephen Hinton, on January 4, 2013. Dr. Hinton wrote a note
indicating he was suffering from acute situational anxiety and was totally disabled from work.
(Note that the disability plan covering the employees requires that an employee be unable to
perform the duties of their occupation in order to be entitled to a disability benefit.) The
grievor provided the note to the occupational health note and as a result the grievor was
approved for sick benefits.
The grievor continued to be off on sick leave through January and February, 2013. On or
about February 15, 2015, Ms. Martinali was informed that another employee had wi tnessed the
grievor working at another location while he was on sick leave. As a result the Employer
initiated surveillance of the grievor. The Employer was able to confirm through the surveillance
that the grievor was indeed working performing cleaning in another location. It was determined
that the grievor would be cut off his sick benefit immediately and the grievor was called in for a
meeting with the Employer on March 13, 2013. At that meeting the grievor acknowledged that
he was continuing to work at another job performing cleaning services off site. The grievor
stated that although he was unable to work at the Hospital because of the stress arising from
his situation of being micro-managed by Mr. Fraser, he was able to continu e elsewhere. The
grievor noted that he was working at two jobs at the time he went off on sick leave and that the
Employer was aware of his other work at the time. Furthermore, he did not know that he was
not allowed to collect sick leave benefits while performing cleaning services elsewhere.
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After considering the facts disclosed by its investigation and those admitted by the
grievor, the Employer determined that the grievor was indeed abusing his sick leave and had
been guilty of a serious breach of trust. As a result, the Employer issued its letter terminating
the grievor’s employment on April 12, 2013.
During the hearing the Union presented evidence from the grievor’s physician, Dr.
Hinton. Dr. Hinton stated that he had indeed seen the grievor on January 4, and 18, 2013. On
January 4th the grievor spoke to Dr. Hinton about his stress at work as well as his financial
stress. He told Dr. Hinton that he was suffering from anxiety and was unable to sleep properly.
According the Dr. Hinton, the grievor did not look well. As a result he concluded that the grievor
was suffering from acute situational anxiety and was totally disabled from performing the
physical aspects of his job.
In his testimony, Dr. Hinton stated that he acts as an advocate for his patients and base d
his conclusions on his observations and on what his patients tell him. In this case he stated that
the grievor did not tell Dr. Hinton that he was working elsewhere nor did he ask if he could
continue to work elsewhere. He also agreed on cross examination that although some the
stress that the grievor was suffering from arose from his work for the Employer, he was also
suffering from stress as a result of his personal and financial situation. When informed in cross-
examination that the grievor was indeed working elsewhere while on sick leave from the
Employer, Dr. Hinton maintained his conclusion that the grievor was disabled from working for
the Employer.
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In his testimony, the grievor acknowledged that he had worked for both Zeller’s and
Jerm Free in 2012, and that he had continued to work for Jerm Free while he was absent from
the Employer and collecting sick leave benefits. He stated that the Employer had always he had
been aware that he had other jobs while working for the Employer. He stated that he went off
on sick leave for four reasons which may be summarized as follows:
1. He believed that his and his mother’s health and safety were at risk.
2. He believe he was targeted for termination
3. He was not given clear direction on what he was supposed to be doi ng at work. He
did not know what I was supposed to be doing.
4. He felt pressured and micromanaged by his manager, Mr. Fraser.
He stated that he did not know he could not continue to receive sick leave benefits as he was
unable to work for the Hospital although he could continue to work for Jerm Free.
The Employer called Javan McAllister, the owner of Jerm Free, as a witness. Mr.
McAllister produced two invoices given to him by the grievor for work performed by the grievor
for Jerm Free in November of 2012. The first invoice was for over five hundred dollars.
According to Mr. McAllister this invoice would have most likely reflected work performed by
the grievor between November 1 and 14, 2012 – the period in which the grievor had been on
sick leave from the Employer for his tooth extraction. In addition Mr. McAllister produced an
invoice from the grievor for over six hundred dollars work performed between November 15
and 30, 2012. Again, the grievor was off work from the Employer until November 20. Mr.
McAllister stated that the grievor was performing cleaning supervisory services at Giant Tiger
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and/or at Winners and Homesense, 2 hours a night up to seven days per week, during this
period. In his cross-examination the grievor continued to deny that he did any work for Jerm
Free while he was on sick leave in November of 2012. His explanation for the invoices produced
by Mr. McAllister is that they must have been for cleaning materials purchased by the grievor.
It is the Employer’s contention that the grievor is guilty of a serious breach of trust
resulting from an abuse of sick leave. The Employer asserts that the grievo r’s trouble with Mr.
Fraser was of his own making. Counsel submits that the grievor had clearly been able to
perform his work satisfactorily in the past but decided to act in opposition to the Employer’s
attempted audits. Counsel concedes that the grievor may have been under stress but that that
stress arose from his personal and financial situation and that the grievor decided to deal with
that stress by continuing to receive two incomes while only performing one job. As a Union
steward, he should have known that his job was not in jeopardy as a result of the audit
procedure and he should have known that he would be could not obtain a sick leave benefit
while working in another job.
It is the Union’s position that the grievor was clearly under stress and was suffering from
acute situational stress preventing from continuing to work for the Employer. Counsel submits
that the grievor did not know that he could not continue to work in his other job while receiving
sick leave benefits from the Employer and should therefore be excused for failing to disclose his
other work while on sick leave. Counsel stated that during the period in question the gri evor
was under severe stress and was making bad decisions as a result but that is not a reason to
discharge him. Counsel added that the audits were indeed a source of stress and they were
overly detailed for a cleaning position.
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Both counsel presented a number of authorities dealing matters such as the assessment
of credibility and the weight to be given to medical opinions. In addition, the Union placed
heavy reliance on a decision of arbitrator T. Joliffe in Alberta (Infrastructure and
Transportation), [2007] A.G.A.A. No. 73. In that case an employee was terminated after the
Employer had learned that an employee who had taken a number of days sick leave continued
to work part time for another employer on some of the days that the employee had claimed
sick leave. The arbitrator accepted that there was a presumption that an employee who works
for second employer while receiving sick benefits from the first, is committing fraud. However,
the arbitrator noted that that presumption could be rebutted if the employee was able to
present evidence establishing that he/she claimed sick leave for a legitimate illness and not for
the purpose of committing fraud. (See paragraph 49.) In that case the arbitrator accepted that
evidence demonstrated that the grievor was unable to work for the first employer as a result of
situational stress, but was able to work for the second on the days that she did. As a result the
grievor was reinstated into employment. However, the arbitrator did note that the grievor
should not have assumed in the circumstances that she was working at a second job and was
under a duty to disclose it in the circumstances where sick benefits were being claimed. By
failing to disclose this fact to the Employer the grievor was liable to be discipline and t he
arbitrator substituted a suspension of three month’s duration.
Although the Union asserts that the grievor has demonstrated that the grievor has taken
sick leave in this case for legitimate situational stress for which did not prevent him from
working for the Employer, I am troubled by the evidence presented in this case. First, the
evidence of Mr. McAllister establishes, in my view that the grievor worked for Jerm Free in
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November, 2012, while the grievor was off on sick leave for a tooth extraction. Clearly,
although this was not the reason that the grievor’s employment was initially terminated, this
evidence does confirm that the grievor had, shortly prior to the events in question, fraudulently
claimed sick leave and benefits from his Employer. This event puts the credibility of the
grievor’s entire explanation of the events surrounding his claim of situational stress into
question.
I am also troubled that when the grievor saw Dr. Hinton in January, 2013, according to
Dr. Hinton, the grievor did not disclose that he was working for another employer at the time at
the time that he was authorizing the grievor to be off work. Although Dr. Hinto n, after having
been made aware that the grievor was working for another employer at the time, continued to
maintain that the grievor was legitimately absent, that evidence must be considered in light of
Dr. Hinton’s candidly stated position that he was acting as an advocate for his patients. In my
view, the grievor, as a steward and former acting president of the Union, should have been
keenly aware that in these circumstances, it was incumbent on him to make full disclosure of
his secondary employment to his doctor and to the Employer. By failing to do so, he has
enhanced the suspicion that he was really seeking to maintain two incomes while only working
at one job.
I would also agree with the Employer’s contention that the circumstances giving rise to
the diagnosis of situational stress add to the suspicion that in this regard. It is clear that the
grievor has always opposed the Employer’s entitlement to audit its em ployees. After
commencement of the audits, the grievor went from having an employee who had done his
work without complaint to a person who at first achieved only 75% on the audit. With the
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passage of time, the grievor, rather than improve his performance, continued to deteriorate so
that by the time he was terminated, was barely able to complete a fraction of his daily tasks. It
is no wonder that the Employer had reached the conclusion that the grievor created this
controversy so that he again, could collect two incomes, while working at one job, as he had
while being off for a tooth extraction in November, 2012.
In this case I accept that that the grievor was under severe stress at the time he went on
sick leave in December of 2012. However, I have determined that the stress stemmed as much
from the grievor’s personal and financial situation as from the audits being conducted at work.
Clearly the grievor felt the need the work at three jobs for a period in 2012 and at the time he
went off work in December of 2012, he was working at two jobs. His position with the Employer
was full time and then he continued to work nightly for Jerm Free.
Although the Employer is required to accommodate an employee’s disability to the
point of undue hardship, it is not required to accommodate an employee’s overloaded work
schedule by paying sick leave benefits while the employee works at another job. I have
concluded that this case is distinguishable from the Alberta decision cited by the Union as, in
my view the grievor has been unable to remove the suspicion that by working at a second job
while claiming sick leave from the first, that he has committed fraud. Indeed, the evidence
presented, when considered in its tot ality, supports that conclusion. In all the circumstances I
agree that the grievor has committed a serious breach of trust and abuse of sick leave. I
therefore find that the Employer has established just cause for discharge.
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Although the grievor does have a lengthy discipline free record of service with the
Employer, the misconduct in this case is very serious and goes to the heart the trust required in
the employer employee relationship. Furthermore, the grievor in his evidence has failed to
establish any likelihood that the Employer may continue to have confidence in the grievor’s
employment going forward.
For all the foregoing reasons the grievance is dismissed.
Dated at Toronto, this 16th day of November, 2015
______________________
Norm Jesin