HomeMy WebLinkAboutRead 87-07-06Concerning an arbitration /____/~..~
Between:
ST. CLAIR COLLEGE
and
ONTARIO PUBLIC SERVICE EMPLOYEES UNION
Grievance of S. Read, dismissal
Board of Arbitration
J. W. Samuels, Chairman
R. J. O'Connor, College Nominee
J. D. McManus, Union Nominee
For the Parties
Union
R. R. Wells, Counsel
S. Read, Grievor
W. Stammler, Chief Steward
R. Price, Local President
College
R. J. Atkinson, Counsel
D. Lauzon, Manager Staff Relations
Hearing in Windsor, June 10, 1987
In early November 1986, the grievor was dismissed because she did
not report for work to her position teaching English as a Second Language at
the Thames Campus in Chatham. She says that there was not just cause for
her dismissal and seeks reinstatement to the College's employ.
The grievor has been teaching at the College since 1973, and full-time
since 1975. She lives in Windsor, and until the spring of 1982 she taught at
the South Campus in that city. Then, because of financial constraints, the
College had to cut back its offerings at the South Campus and this would have
meant that the grievor would have to be laid off. Instead, she accepted a
position at the Thames Campus in Chatham, and began commuting to work.
By the fall of 1983, the grievor was experiencing serious health
problems, which prevented her from attending regularly in Chatham. We
now know from numerous medical reports submitted by the parties that she
suffers severe anxiety, including hypertension and headaches, states of panic
and depression, and that these conditions are aggravated or brought on in
particular by the driving involved in getting to Chatham.
For the spring term of 1984, the grievor was able to make
arrangements with a colleague to exchange positions for one on the South
Campus in Windsor. After this term, she never retumed to work.
There is a long story to be told about the next two and a half years.
Suffice it to say that ultimately she succeeded in her claim for disability
payments for two years from Sun Life Assurance Company, who carry the
long-term disability policy with the Council of Regents. This policy provides
for a 6-month waiting period, then 24 months coverage for disability which
results in an inability to perform any of the duties relating to one's regular
work. This two-year period ran out on October 18, 1986.
In the meantime, on July 11, 1986, the grievor's principal physician,
Dr. N. A. Fretz, wrote to the College to say that she could return to work.
Mr. D. Lauzon, the College's Manager of Staff Relations, called Dr. Fretz to
confirm this advice. Mr. Lauzon was told that the return was
"unconditional" and that it would be as of September 29, 1986. However, in
mid-September, the grievor suffered from bronchitis and a severe asthma
attack and was unable to return to work. The return was delayed by the
College to October 9, then November 4. She never returned to work. In a
meeting with Mr. Lauzon, the grievor made it clear that 'she would never
return to the Chatham Campus. On October 8, Dr. Fretz wrote to the
College to say that the grievor could return to teaching duties "in the
Windsor campus" on November 1. But there is no place for her at the
Windsor Campus. So she was dismissed for failing to report to work in
Chatham.
It is clear that the grievor was and is not medically fit to work in
Chatham. This was confirmed by letters from Dr. Fretz (dated December
31, 1986), and a Dr. R. J. Mason (dated March 3, 1987) who was consulted
for a second opinion. Not only is she incapable of commuting to Chatham,
but she cannot move there, because she needs the support systems available to
her in Windsor.
In these circumstances, the grievor cannot be discharged for
disciplinary reasons. She did not "fail to report to work", which connotes
some fault on her part. She was unable to report for work.
At our hearing, the College did not make a full presentation
concerning the possibility of dismissal for innocent absenteeism, and nor did
the Union have the opportunity to call all the evidence it might have wanted
to call on the matter of prognosis. Furthermore, the dismissal letter did not
cite innocent absenteeism as the reason for the dismissal. However, the result
of all the evidence introduced so far is to show clearly that the grievor was
blameless in failing to report to work precisely because she was totally unable
to report to the Thames Campus and would never be able to do so. In short,
the Union succeeded in demonstrating that there was no just cause for a
disciplinary dismissal because there is a prima facie case for dismissal for
innocent absenteeism. The College is entitled to regular attendance at the
place of work by its employee, and the grievor appears unable now and for
the foreseeable future to provide this basic service.
In these circumstances, which are very unusual, We conclude by
declaring that the grievor was not properly dismissed in November 1986
because there was no just cause for a disciplinary dismissal, and she is to be
reinstated with no compensation or any benefit from the College. But given
the reasons for this finding, and all of the evidence we received to support
this finding, we will retain jurisdiction to consider the ultimate disposition of
the grievor's employment relationship with the College, if the College seeks
to terminate the relationship because of innocent absenteeism.
Done at London, Ontario, this ~ ~ day of_~ ,1987.
R. J. O'Connor, College Nominee
J. D. McManus, Union Nominee