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HomeMy WebLinkAbout1988-0139.Kapur.89-06-19 ONTARIO EMPLOYES DE LA COURONNE CROWN EMPLOYEES DE L 'ONTARIO GRIEVANCE C,OMMISSION DE SETTLEMENT REGLEMENT BOARD DES GRIEFS 180 DUND.4S STREET WEST, TORONTO, ONTARIO. MSG 1Z.8-SUITE 2100 TELEPHONE/T~I.--~PHONE 180, RUE DUNDAS OUEST, TORONTO, (ONTARIO) MSG 1Z8. BUREAU2100 (416,i 598-0688 139/88. IN THE MATTER OF AN ARBITRATION. Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD Between: OPSEU (Kaput) Grievor - and - ~ The Crown in Right of Ontario (Ministry of Transportation) Emgloyer Before: M.W. W~ight - Vice-Chairpe~so~ J. Best - Member G.A. Peckham - Member APPEJ%RING FOR H.P. Stephenson THE GRIEVORt Counsel Gowling & Henderson Barristers & Solicitors APPEARING FOR C. Slater THE. E~PLOYER: senidr Counsel Human Resources Secretariat Management Board of Cabinet HEA~ZNG: August 8, 1988 November 14, 1988 Janua£y 30 and 31, 1989 March 23, 1989 DECISION The Grievor seeks sick leave payment. The Grievor was in Delhi, India on three weeks vacation from January 25, lg88 until Friday, February 12, )980. She was scheduled to return to work. on Monday, February 15, 1988. She claims that she was unable to return because she fell ill in Del hi necessitating a delay in her return until March 2, 1988. Thus, the Grievor claims sick leave for the period from February 15 to March l, 19B8. lhe Grievance is based on Article 52.1 of the Collective Agreement which reads as follows: "SZ.1 An employee who is unable to attend to his duties due to sickness or injury is entitled to leave-of-absence with pay as follows: (i) with regular salary for the first six (6) - working days of absence, (ii) with seventyTfive percent (75%) of regular salary for an addi- tional one hundred and twenty- four (124) working days of absence, in each calendar year. The Ministry resists the Grievance which was strenuously contested before us. Difficulties over the Grievor's vacation began even before vacation leave was granted by the Employer to the Grievor. We do not propose to set out all of the evidence placed before us in several days of hearings; we shall set out only the more material aspects of the evidence which led us to our conclusion. In 1984 the Grievor was granted vacation leave to travel to Delhi but on that occasion she delayed her return alleging illness. The Ministry was obviously unconvinceO the Grievor had been ill and questioned the efficacy of the medical certificates which were produced by the Grilevor as well as the truthfulness of statements made in certain telegrams which the Grievor sent 'to the Ministry from Delhi in which she explained her del ay in returning to work. Before the Grievor left for India this time, the Grievor's supervisor went so far as to caution the Grievor .against delayint her return from In4ia. .When the Grievor, on this second trip, cabled her supervisor stating that she would be delayed because of illness and requested an extension of her vacation the supervisor saw the exercise as deja vu. Indeed, the medical certificates were, for the most part, on similar printed forms as were used in 1984 and the contents of the cables were almost identical. The Employer simply challenges the Grievor's credibility and takes the position that the Grievor was not ill, that she never intended to return from her vacation on time and that she wilfully set out to circumvent the vacation arrangements which had been carefully and mutually agreed upon. The Grievor, on the other hand, complains that she was ill with a high fever, that she saw two medical doctors in m~ India -- the second at the out patient clinic of a hospital in Delhi -- and she relies on the medical certificates to support her Position. The Grievor asks us to accept her version as truth- fu]. Regrettably, the issue before us is one of credibility and the Grievor bears the onus of proof. We approached our task by making all presumptions in favour of honesty but we regret that we were almost forced into our conclusion by the weight of the evidence against the Grievor. This matter cannot be resolved solely on the basis of the medical certificates. The medical certificates are, after all, evidence of a hearsay nature. They cannot be cross-examined. At best, they should be seen as being advanced as corroboration of the Grievor's evidence that she was ill in India. Aside from the fact that the medical, certificates are not, in our opinion, very satilsfactory in describing either the diagnosis or the nature of the treatment, it' is the Grievor who must satisfy us that she was ill. In deciding on the question of credibility we are entitled to look at the whole of the evidence in order to see whether the Grievor has justified our confidence in her veracity. Truth is not divisible. Failure by the Grievor to speak the truth on one subject lessens our confidence in relying on Other portions of her evidence. Mrs. Teresa Caramanna is a Group Leader at the Grievor's place of employment and the Grievor reports to Mrs. Caramanna. Mrs. Caramanna's superior is Mrs. Margaret Mooney, In August 1987 Mrs. Caramanna sent a memo to the staff with a form regarding scheduling for forthcoming vacations. Mrs. Caramanna testified that the Grievor told her in August she would be taking her vacation in November or December 1987. 'Mrs. Caramanna agreed. In November 1987, however, the Grievor told Mrs.- Caramanna that ~he would be taking her vacation in the months of January and February 1988. What transpired then is recorded by the following exchange: Mrs. Caramanna: I looked at her (the Grievor) in disbelief asking "You are?" The Grievor: You approved it. Mrs. Caramanna: "I did?" The Grievor: I have it in writing! Mrs. Caramanna thereupon checked her file and found a form which had. been prepared for her signature authorizing vacation for the Grievor for a four week period in January and February 1988. mrs. C~ram~nna testified that the form was the top document on her vacation file but it was not signed by Mrs. Caramanna or by anyone else and that she had never seen the form before and had not placed it on her file. Mrs. Caramanna demanded to know how the form got into her file; the Grievor insisted that Mrs. Caramanna had approved such vacation arrangements and the Grievor had made travel reservations in reliance on Mrs. Caramanna's approval. Surprisingly, the Grievor did not deny Mrs. Caramanna's evidence. We are convinced that Mrs. Caramanna's evidence was genuine and truthful; her evidence stands uncontradicted. This piece of duplicity on the part 'of the Grievor hardly inspires confidence in her credibility.~ Mrs. Caramanna then arranged for the Griever to meet with her and Mrs. Mooney. The Griever was told that she was planning to take her vacation at the Ministry's busiest time of the year contrary to the Ministry's plans which had been previously announced. The Griever stated, however, that she wanted to attend her brother's wedding in Delhi and 'Mrs.~ Mooney and Mrs. Caramanna finally agreed provided that the Griever would be gone for not more than three weeks so that she would return to work on February l§th and this was confirmed in writing. A situation developed in the course of the hearings which shattered our confidence in the Griever's evidence. Since the Griever was supposed ~o be away for a period of three weeks one would have expected that she would have reserved a return flight with Air India on whose airline she travelled. The Griever's Air India ticket was filed with us and it shows that the Griever travelled with an open return date! When she was questioned about this development the Griever testified that she had made arrangements for a return date but that Air India does not fill in the 'return date at the time that the ticket is issued in loronto. Instead, she said, Air India requires the passenger to attend at its office in Delhi at which time a sticker recording the return date is placed on the ticket. We thought this was a strange practice for Air Indi~ to follow, lhe doubt was cleared away by coUnsel for the Griever who called Mr. Joseph D'Cunha who is the area sales manager for the company which sells Air India tickets in the Province of Ontario. Mr. D'Cunha categor- ically rejected the Grievor's evidence as regards Air India's practice.I If the person 'travelling reserves a return flight that reservation is recorded on the flight coupon at ithe time of issuance of the ticket in Toronto. Mr. O'Cunha was shown the Grievor's Air India ticket and he stated ~hat as far as he was concerned the return portion of the ticket was left open. In other words, when the Grievor left Toronto she did not have a return date reserved with Air India. The ticket was actually sold to the Grievor by a travel agent, Jumbo World Travel, and if the Grievor had made any special flight arrangements they would know; no one, however, from that firm was called to testify and i~deed no useful purpose could possibly have been served by calling anyone from Jumbo World Travel. , We conclude, therefore, that the Grievor left Canada for India without a reservation for her return trip which means that there was no fixed decision in her mind to return to her work on February 15th. Because of the serious discrepancies in the Grievor's evidence we are not pursuaded, after seeing and hearing the witnesses on both sides, that she was telling the truth when she says that her failure to return to work was due to illness. The Grievance is denied. DATED AT OTTAWA this 19th day of June , 1989. MAURICE W. Vice Chairperson /' · JANIC£ BEST GEORGE PECKHAM Member