HomeMy WebLinkAboutStanley 99-11-30 IN THE MATTER OF AN ARBITRATION
BETWEEN
SENECA COLLEGE
(the "College")
and
ONTARIO PUBLIC SERVICE EMPLOYEES UNION
(the "Union")
RE: TERMINATION OF DAVID STANLEY UNDER LAST CHANCE
REINSTATEMENT AWARD
BOARD OF ARBITRATION:
Pamela Cooper Picher Chairperson
Al Merritt College Nominee
Brian Switzman Union Nominee
APPEARING FOR THE COLLEGE:
Chds Riggs Counsel
Melvin Fogel Director of Employee Relations
APPEARING FOR THE UNION:
Alick Ryder Counsel
Hearings in this matter Were held in Toronto on October 21, 1998; May 20, 1999;
and May 31, 1999.
~ SUPPLEMENTARY AWARD
By a Decision dated December 19, 1995, the Board issued a unanimous
Award reinstating the grievor, Mi. David Stanley, on a conditional, last chance
basis. Effective January 19, 1996, Mr. Stanley was reinstated in compliance with
the Board's Award. Approximately 8 months later, on September 5, 1996, Mr.
Stanley was terminated for breach of two of the standards set in the terms of his
last chance reinstatement: (1) that he be able to perform all the duties of his
position and (2) that he not exceed the Department average of absenteeism
during any six month period. This arbitration results from the grievance filed
contesting Mr. Stanley's termination effective September 5, 1996.
For the odginal Award, giving Mr. Stanley one last chance at emplOyment
on stipulafod terms, tho Board of Arbitration consisted of tho current Ghair and
College nominee, lbo Onion nominee for the original arbitration was Mr. Joe
Herbert: the Union nominee for the instant, supplementary arbitration is Mr. Brian
Switzman.
The terms of Mr. Stanley's last chance reinstatement were set out as
1=ollows in the Board's Award dated December 19, 1995:
1. Mr. Stanley is to be reinstated to the position which he was.
offered in the letter of March 10, 1992, set out above. If he does
not report to work by Monday, January 15, 1996, or upon.
another date mutually agreed to by the parties, he shall be
deemed to have refused the position and his termination shall
stand.
~2_ Mr_ ~t~nley~will be given ~ "ph~ee in'" period during which
hours will be steadily increased as follows:
WEEK #1 - 4 HOURS PER DAY
WEEK#2 - 6 HOURS PER DAY
WEEK #3 - 8 HOURS PER DAY
3. Mr. Stanley will receive no compensation for his period of
termination.
4.Mr. Stanley's seniority upon reinstatement shall be the seniority
he had as of the date of the termination of his employment.
5. Mr. Stanley will be on trial with respect to his performance of his
duties and his attendance at work for a period of two years
following his reinstatement, as referred to below.
6.The College will be entitled to dismiss Mr. Stanley for either
of the following reasons:
(a) if he is unable, for any reason, to perform all the
duties of his position; or
(b) if, during any six month period, his absenteeism, for
~ any mason, is highe~r than the average in his
~ Department for that given time period.
7. In the event that Mr. Stanley is dismissed' by the College as a
result of his inability to perform all the duties of his position or as
a result of his attendance, as set out above, Mr. Stanley may file
a grievance with respect to such action.
8. Should such a grievance proceed to arbitration, the Board of
Arbitration shall determine solely:
(a)whether he was unable, for any reason, to perform all the
duties of his position; or
(b) whether his absenteeism, for any reason, was higher
than:the average-in his'Department for the relevant six
month period.
The Board~shall have no further authority with respect to the
grievance, :save for 1) upholding the termination if the facts
required for either of the two conditions for dismissal are made
out or 2)'reinstating him with appropriate compensation if
neither one of the conditions for his termination under this last
chance reinstatement is made out.
9. This Board' bf Arbitration will remain seized of any issees
relating to the interpretation and implementation of this Award
and of any grievances ~ri.~ino out of the implementation of this
Award.
lO. Mr. Stanley's reinstatement shall be deemed to be an
acceptance by the Union and Mr. Stanley of all the terms of the
Board's Award.
[emphasis added]
The position to which Mr. Stanley was reinstated, which was referred to in
paragraph 1 of the terms of reinstatement as "the position which he was offered
in the letter of March 10, 1992", is set out below:
March 10, 1992
Dear Mr. Stanley:
The College is in receipt of Dr, Godfrey's assessment.
In this regard, the College has determined that, while you are not
medically capable of performing the duties of your former position,
you are medically capable of performing light duties as follows:
To provide light cleaning duties at the Newnham Campus in
cafeterias, washrooms and entranceways.
More specifically, the light duties incltJde:
- the removal of garbage from cafeteria
tables and light sweeping in the cafeteria 50%
- light sweeping in College entranceways 20% '
- light pickup, replenishing washroom supplies,
and washing mirrors/sinks/counters in washrooms 20%
- delivering"light mail and parcels from Receiving
Department and Mailroom to various areas as
required 5%
(r other light duties as your physical limitations allow 5% . ·
This position is classified as Caretaker A, payband 1. with a rate of
pay of $12.52 per hour. The shift hours are scheduled from 7:30
a.m. to 4:00 p.m., Monday to Friday.
On receipt of this memo, you are to contact Mr. Al Woodman,
Manager, Physical ReSources, to confirm your attendance and start
date.
The College wishes you well in your new endeavours.
Yours very truly,
"Mel Fogel"
Director of Employee Relations
Of particular importance to Mr. Stanley's termination on September 5,
1996, paragraph 6 of the terms of the reinstatement provided that the College
would be entitled to dismiss Mr. Stanley for either one of two circumstances:
either becauSe (1) "he [was] unable, for any reason, to perform all the duties of
his position" or because (2) "during any six month period, his absenteeism, for
any reason [was] higher than the average in his Department for that given time
pedod."
Paragraph 8 of the terms of the reinstatement limited the Board's
jurisdiction in reviewing a subsequent termination of Mr. Stanley to determining
the following issues only: (1) "whether [Mr. Stanley] was unable,for any reasons-:
to perform all the dutiSs of his position" or (2) "whether his absenteeism, for any
reason, was higher than the average in his Department for the relevant six month
period."
Counsel for the: Union contends that Mr. Stanley did not breach the
condition of his reinstatement that he be able to perform "all the duties of his
position." Counsel asserts that the grievor's job, as specified in the Board's
Award, did not include the cleaning of windows. Counsel argues that, therefore,
Mr. Stanley's acknowledged inability to clean windows by the end of June of
1996 did not breach a condition of his reinstatement. Moreover, counsel disputes
that the grievor had any difficulty washing mirrors, which was a task the grievor
was relieved of in February or Mar'ch of 1996 and a task he acknowledged was
part of his assigned duties.
Regarding the second ground for termination, it is undisputed that Mr.
level of absenteeism the relevant period well in excess of
Stanley's
dudng
wa.s
the standard set in the terms of his reinstatement. Dudng the pedod of Mr.
Stanley's reinstatement, from January 19, 1996 to September 5, 1996, Mr.
Stanley was absent 74 days. The average for the Department for all of 1996 was
approximately 19.95 days. Notwithstanding this obvious breach of the
absenteeism ~tandard set by the Board as a condition of continued employment,
counsel for the Union asserts that in terminating Mr. Stanley on this basis, the
College acted in a breach of the Human Riqhts Code of Ontado, R.S.O. 1990, c.
H. 19, as revised.
According to counsel .for the _Union, the absences incurred by Mr. St.anley .
taking him beyond the Department average were caused by a right shoulder
injury resulting from his slipping on a wet floor on or about April 19, 1996.
Sometime following his ferminntinn, it wnuld appear. Mr_ StnnlP. y nlnimed ben~fit~
from the Workers' Compensation Board for an injury allegedly arising from this
accident. The period for which benefits were claimed was from July 3, 1996,
through his termination and beyond.
Counsel for Mr. Stanley maintains that the calculation of absenteeism for
the purposes of determining whether he exceeded the Department average and,
thus, whether he was in breach of a condition of his reinstatement cannot
propedy include absences following July 3, 1996 because they were part of the
period for which Workers' Compensation benefits were claimed. To include them
in the calculation of absenteeism, according to counsel, would constitute
discrimination in breach of the Human Ri.ahts Code. Counsel relies on section
10(1)(e) of the Human Ri(~hts Code which defines "handicap" as "an injury or
disability for which benefits were claimed or received under the Workers'
Compensation Act..." Section 5(1) of the Human Ri.qhts Code prohibits
discrimination on the basis of handicap, although section 11 of the Human Ri.qhts
Code provides that there is no discrimination if the handicap cannot be
accommodated without "undue hardship".
Counsel asserts, then, that the College's application of the term of
reinstatement prohibiting absenteeism above the Department average was in~
breach of the Human 'Ri.qhts Code and constituted discrimination on the basis of
a protected handicap because the College included absences during a period for
which Mr. Stanley h~d applied for Workem' Compensation benefits.
Additionally, the Union asserts that the attendance condition itself is in
breach of the Human Riqhts Code because it discriminates against Mr. Stanley
because of a handicap. As well, the Union contends that the College applied the
absenteeism standard in a discriminatory manner because it did not terminate
other employees who had exceeded the Department average.
The College maintains that Mr. Stanley breached both conditions of his
last chance reinstatement - the work performance standard and the absenteeism
standard - and that it acted well within its rights when it terminated Mr. Stanley
effective September 5, 1996. The College denies that there has been a breach of
(~' the Human Riqhts emphasizes expressly provided
Code.
It
that
the
Board
that
the College had fully met its obligations under the Human Riqhts Code. and that
to require 'more following reinstatement would constitute "undue hardship".
DECISION;
After careful review, the Board concludes on the evidence that within a
short time following reinstatement, Mr. Stanley was not pl~yslcally able to perform
at least one of his regular duties, that of washing the mirrors in the washrooms.
The Board is further satisfied that. it would have been within the College's
entitlement under paiagraph 6 of the last chance reinstatement to dismiss Mr.
Stanley at that point, tt was clear that "[Mr. Stanley was] unable, to perform all
tho dutiee of hie poeition" beeauee it had been determined, on what we find
a clear and cogent basis, that he was unable to wash mirrors.
However, instead of dismissing Mr. Stanley, then (i.e. sometime in
approximately February of 1996), as.would have been its right, the College went
out of its way to accommodate him, yet again, just as it had done, over and over,
prior to the original termination.
The Board concludes on the evidence that in the discussion at that point
(i.e. sometime in approximately February of 1996) of ways to accommodate Mr.
Stanley, Mr. Stanley either himself suggested that he wash windows to replace
the regular duties he was unable to perform' or readily agreed to the suggestion
from his supervisor that he wash windows. There was no indication from anyone
that washing windows might be outside Mr. Stanley's physical limitations.
Accordingly, by February or March of 1996, Mr. Stanley's regular'duties were
revised, by agreement of all, to include window washing to replace the other
duties he was unable to perform. It would appear that one of the' reasons Mr.
Stanley was having difficulty washing mirrors was because he was required to
stretch over sinks. Such stretching, it would seem, was not required in washing
windows.
The evidence-reveals that for quite some time Mr. Stanley washed
windows without a problem and, in fact, enjoyed it. Unfortunately, throughout the
spring of 1996, Mr. Stanley's right shoulder plagued him and required treatment.
Amid th~eo diffieultiee, on April t0, t9~8, Mr. 9t~nley elippod on hi~ right ~id~ o0 .....
a wet floor. By early June, his physician imposed restrictions on his right arm
mobility and he could no longer perform his job of window washing without
modification and further accommodation. A medical c~rtificate dated June 7,
1996 states "Painful shoulders - needs different job (no overhead activity)." A
letter from this doctor states that the fall on April 19t~ may have aggravated the
shoulder pain. It further states, however, that he had had problems with his right
shoulder over the previous six months.
Once again the College demonstrated its willingness to give Mr, Stanley
every assistance in helping him find ~ way to physically perform his work. On or
about June 14, 1996, a meeting was convened between management,· Mr.
Stanley and Union representation to find a way to again accommodate Mr.
Stanley's physical difficulties. The participants agreed to a further modification of
Mr. Stanley's work to alleviate physical strain. The College's ongoing efforts at
accommodation, which at this point went beyond its legal obligation, are to be
commended. Unfortunately, though, within a short while after he returned to the
modified work on or about June 17, 1996, Mr. Stanley proved fully unable to
perform his job. His last day of work prior to his termination on September 5,
1996 was June 28, 1996.
Mr. Stanley's termination on September 5, 1996 must be evaluated within
the framework of the conditions established for his last chance reinstatement. It
was after 16 days of hearings and extensive evidence and submissions that the
E~oord gore itc unonimou¢ doei¢ion doted December 19. IQ~5_ In that Award. the
Board dismissed Mr. Stanley's grievance that he had been discriminated against
by the College. The Board further dismissed the grievance that the College had
failed to recognize the Union. As well, it dismissed Mr. Stanley's 9rievance
regarding his wages. While the Board did reinstate Mr. Stanley, the Board did not
reinstate Mr. Stanley in the normal course. As set out on pp. 3-4 of the Board's
Award dated December 19, 1995, the Board concluded that,
[O]ver a number of years the College [had] made considerable
efforts to accommodate Mr. Stanley's disabilities under the
provisions of the collective agreement, the Human Ri.qhts Code and
the Workers' Compensation Act. Ultimately the efforts failed with a
lack of cooperation from Mr. Stanley.
The Board exprossly found that the College had fully met its contractual and
statutory duty to accommodate Mr. Stanley. At p. 4 the Board stated,
In reinstating Mr. Stanley in accordance with the Board's Award ....
the Board concludes that the College will have met in full its
contractual and statutory obliwations to accommodate Mr.
Stanley. In tl~e Board's view, further efforts would constitute
undue hardship to the College.
[emphasis added]
Notwithstanding the College's repeated efforts at accommodation and Mr.
~t~nlc. y's lack of coop?ration, the Board reinstated Mr. Stanley largely throug.h
compassion for his circumstances and because the Board was persuaded that
Mr. Stanley had the motivation to work, if his body would cooperate. Accordingly,
the Board dctormined to give him one last chance at employment with the
C. nlleg~._ At the .~mp..time. ~nd in recognition of the repeated and su. bstantive
efforts made by the College over the years to accommodate Mr. Stanley, the
Board expressly provided the College, under the terms of the last chance
reinstatement, with the right to terminate Mr. Stanley should he prove to be
unable to perform the duties of his job or to attend in accordance with the
Departmental average.
If, under the last chance reinstatement, the College was going to again be
put to a test of accommodation under the Human Rights Code, in the event of a
subsequent termination for a breach of the stipulated terms of the reinstatement,
this Board would not have reinstated Mr. Stanley in January of 1996. As clearly
set out in its Award dated December 19, 1995,
the
Board
had
determined
that
"[i]n reinstating Mr. Stanley in accordance with the Board's Award, ... the College
[would] have met in full its contractual and statutory obligations to accommodate
Mr. Stanley [and that] [i]n the Board's view, further efforts would constitute undue
hardship to the College."
The intention of the Board in establishing the terms of the reinstatement
was to remove all but the most limited arbitral review in the event of a
subsequent inability on Mr. Stanley's part to fultill his employment obligations in
respect of either ability to perform work or attendance. For that reason, the Board
stipulated that the College would be entitled to dismiss Mr. Stanley "if he [was]
unable, for any reason, to perform all the duties of his position ..: or ... if ... his
absenteeism, for any reason. [was] higher than the average in his Department..
As set out, the Board has determined that within a short period following
his return to work in January of 1996, Mr. Stanley was unable to wash mirrors. At
that point the College would have been within its rights to terminate Mr. Stanley
under paragraph 6 of the terms of the last chance reinstatement. The College's
willingness to find another task for Mr. Stanley, which was that of window
washing, is what kept Mr. Stanley employed. Moreover, the evidence
demonstrates that in assigning the window washing, the College made efforts to
ensure that the means of implementing that duty would be within his physical
limitations. As noted, for awhile, all was well.
Assuming, but without finding, that window washing was not part of the
original job, as set out in the March 10, 1992 letter, we conclude that by
agreement of the parties, in approximately February or March of 1996, through
the College's continuing efforts at accommodation, window washing became part
ur Mr. Stanley'~ regular duties.
As the spring progressed, however; it became increasingly difficult for Mr.
Stanley to wash windows. Finally, on or about June 14, 1996, the parties met to
find a way to modify Mr. Stanley's duties, yet again. By agreement, his time spent
window washing was substantially reduced. By the end of June, however, Mr.
Stanley was no longer able to perform even this modified work. After June 28,
1996. Mr. Stanley was physically unable to return to work and the College. once
again, was well within its rights to terminate Mr. Stanley for his breach of his
condition of reinstatement that he be able to perform all of the duties of his
position. Even then, the College declined to terminate Mr. Stanley until he had
not returned to work by September of 1996.
At various points following his reinstatement, but most certainly by
September 5, 1996, Mr. Stanley's inability to perform all of the duties of his
position, standing alone, provided sufficient grounds for the College to terminate
Mr. Stanley under paragraph 6 of his last chance reinstatement, and we so find.
We turn, however, to the second branch of the College's foundation for
termination, that being that Mr. Stanley's breached the condition of his
reinstatement that his absenteeism during any six month period not, for any
reason, exceed the average in his Department. The Union maintains that
terminating Mr. Stanley for his failure to attend at work in accordance with the
Depar£ment average was a breach of the Human Ri.clhts Code because his
absences were the result of a compensable injury, i.e. a fall on April 19, 1996.
When the Workers' Compensation Board issued a decision on January 6,
1997, four months after his termination, regarding whether the fall on April 19,
1996 was a compensable injury, the WCB noted that Mr. Stanley had stated that
he had "experienced a gradual onset of right shoulder discomfort prior to April 19,
1996 but continued to work and used [his] left arm sometimes to compensate for
the pain [he] wa~ exp~_rien~ing to [hi~] right ~houlder." The decision ~tated that
Mr. Stanley related the "right shoulder problems to the job of window washing."
The decision further stated that his incident report completed at the time of the
fall "did not specify that [his] right shoulder was injured at that time."
The WCB concluded that there was proof of an accident on April 19, 1996
when Mr. Stanley "slipped and fell on [his] right side." The officer found that
"[a]lthough it was not clear as to what area of body was injured, I have extended
benefit of doubt that you may have injured your right Shoulder." The officer of the
WCB awarded benefits for a period following September 4, 1996, but not before,
i.e. not between July 3, 1996 and hid termination on September 4, 1996, because
during that period he was in receipt of sick benefits from the College. In its
supplementary decision dated January 17,. 1997, the WCB said,
Based on my review of your file, the modified job was offered to you from
June 17, 1996 which was found to be within your physical restrictions and
does not involve any loss of wages. Although your doctor advised you to
stay off work from July 3, 1996, you are' medically considered to be
partially disabled and capable of performing the modified job. The
modified job was no longer available on September 4, 1996.
Noting the above information, you are not entitled to receive benefits from
July 3, 1996 to September 3, 1996. As you have received short term
disability benefits from July 3, 1996 to September 3, 1996, your employer
will have'to t~k~ action on this m~tter.
While the wcB found that the fall on April 19, 1996 was a compensable
accident and, therefore, properly attracted Workers' Compensation benefits after
Septembe~ 4, 1990, i.e. after his terrnina[ion, the WCD stated that it was not clear
whioh ~re~ of hi8 body h~d been injured in th~ f~ll. It ~t~t~d that Mr. @t~nl~y did
not even state in his report of accident on April 19, 1996 that he had injured his
right shoulder in the fall. It further noted the conclusion of the medical advisor
that the right shoulder injury was as consistent with the job he was doing [window
washing] as it was with the fall. As well, the WCB commented that there had
been a gradual onset of right shoulder discomfort prior to the fall on April 19,
1996.
It is apparent that the absences Mr. Stanley suffered following April 19,
1996, as well as his inability to perform his job, cannot be viewed as the singular
result of the compensable injury. The evide.nce re.ve.~l~ that they were also the
result of a physical problem with his dght shoulder that had been increasing in
intensity prior to his slipping on the wet floor on April 19, 1996 and. was deemed
by the wOB to be as "compatible [with his] job as ... the injury on April 19, t996".
The willingness of parties themselves to settle grievances through "last
chance" reinstatements and the willingness of boards of arbitration to tip the
scale a bit by reinstating an employee for one last chance, depends entirely on
subsequent boards of arbitration, charged with reviewing a subsequent
termination, being able to strictly enforce the conditions set either by the parties
themselves or by .the. rein.~t~ting hoard of arbitration. If the parties and/or a board
of arbitration cannot be confident that its last chance reinstatement terms will be
upheld, there will be a dampening effect on the willingness of parties or boards to
utilize this form of reinstatement.
This Board would not have been willing to hold the College to any
standard of obligation beyond that which was cleady set out in the narrow terms
of the reinstatement. If the measure of absences, "for any reason", in Mr.
Stanley's last chance reinstatement could not be held to mean what it states, i.e.
"for any reason", then this Board would not have reinstated Mr. Stanley and
would not have given him one last chance. It is for this reason, precisely, that the
Board stated in its original Award dated December 19, 1995 that "[i]n reinstating
Mr. Stanley in accordance with the Board's Award .... the Board concludes that
the College will have met in full its contractual and statutory obligations to
accemmodate Mr. Stanley [and that] further efforts would constitute undue
hardship to the College." Section 11 of the Human Ri.clhts Code stipulates that
there is no discrimination if the handicap cannot be accommodated without
"undue ha'rdship."
Accordingly, in the terms of its Award giving Mr. Stanley one last chance
at employment with the College, this Board had already determined that
absences, however caused, could be properly used to calculate whether Mr.
Stanley was above the average for his Department. The Board had already
determined that the use of any such absenteeism in the calculation would not be
a breach of the Human Rights Code and would not constitute disc~'imination. The
Board had' already, determined that to require the College to further
accommodate at that: point in this protracted situation would constitute "undue
hardship."
This matter is fully distinguishable from the cases relied on by the Union
because those cases either did not involve a last chance reinstatement or did not
involve a finding that accommodating the handicap would constitute "undue
hardship" which was, and is, the finding of this Board.
Even if it were somehow to be found that the injury which led to the
absence for which Mr. Stanley applied for Workers' Compensation benefits was a
protected "handicap" under the Human Rights Code, notwithstanding the Board's
determination of "undue hardship", the period of absence that the Union claimed
would constitute discrimination on the basis of handicap, contrary to the Human
Ri.~hts Code, if included in the calculation of his absences, was the absence
following July 3, 1996. The definition of "handicap" under section 10(1)(e) of the
Human Rights Code defines "handicap" as including "an injury or disability for
which benefits were claimed or received under the Workers' Compensation
Act..." The benefits were claimed, albeit never granted, for the absence from July
3, 1996 through to termination on September 5, 1996; they were not claimed for
any absence before July 3, 1996.
By the middle of May, Mr. Stanley had exceeded the average for his
Department for the. Whele year. let alone the stipulated six month period.
Accordingly, the continued absence following July 3, 1996, the absence which
Union asserts is protected by the Human Ri.qhts Code, occurred well after Mr.
Stanley, in any event, had oxooeded the Department average for the whole year.
By the end of June, Mr. Stanley had had 34 days of absence while the
Department average for the entire year was 19.95 days. Accordingly, even if the
absences expressly contested by the Union as being in breach of the Human
Rights Code are eliminated from the calculation, Mr. Stanley's level of
absenteeism would still exceed the average for his Department for the relevant
six month period.
In the result, the Board finds that Mr. Stanley exceeded the Department
average for any six month period on the basis of absences that were not
protected by the Human Riqhts Code. They were not protected by the Human
Rights Code either (1) because they did not relate to a period for which he ¢iad
applied for benefits, i.e. after July 3, 1996, and thus did not fal~ within the
definition of "handicap" or (2) because, even if they did, the Board concluded that
to accommodate the handicap in the grievor's circumstances would constitute
"undue hardship" for the College or (3) because the Board had already directed
its mind fully to the application of the Human Ri.qhts Code when it established the
terms of the last chance reinstatement and stipulated that the calculation of the
average for Mr. Stanley would include absences "for any reason."
In addition, the Board does not accept the Union's assertion that Mr.
Stanley was discriminated against because some other employees who also
exceeded the average were not terminated. Their circumstances were not
sufficiently similar to Mr. Stanley's to provide any foundation for a finding of
diccrimination, oven if cuch a finding wore within thic goard'c juricdiction given itc
limited scope of review.
As well, the Board does not accept that the absenteeism standard
established in the terms of the last chance reinstatement was itself a breach of
the Human Ri(~hts Code, as asserted by the Union. In Re O.P.S.E.U v. Ontario
(Ministry of Community and Social Services), Can. Abr. (2"d) S19.580, (decision
of the Ontario Divisional Court dated February 21, 1996), the case relied on by
the Union, the gdevor was known to have an obsessive compulsive disorder and
the Court found that the absenteeism standard was imposed on him "because of
his handicap". In the instant situation, the "handicap'' relied on by the Union was
not even known at the time the Board set the absenteeism standard in the terms
of its last chance reinstatement because he had not yet slipped on the wet floor
and applied for benefits from the WCB.
Accordingly, for the reasons set out, this Board finds that the College
acted fully within its rights by terminating Mr. Stanley for his breach et the terms
of his reinstatement. Mr. Stanley was unable to perform all the duties of his
position and he dramatically exceeded the Department average in respect of his
absences during the relevant period of his reinstatement. Either one of these
breaches entitled the C~llege to terminate Mr. Stanley.
In the result, the~grievance is hereby dismissed.
Dated in Torontb' this 30th day of ~¢~~~
Pamela Cooper Pich'er.---/
Chair
I concur "Al Merritt"
College Nominee
dissent "Brian Switzman"
Union Nominee
Dissent of Union Nominee Brian Switzman
I have reviewed the award of my colleagues arid with respect i must.
dissent.
I was not a member of the original Board that issued the conditional
reinstatement of Mr. Stanley. Therefore, I make no comment and fully accept the
expressed rationale stated in this award as-to the reasons behind my colleagues
reinstatement of Mr, Stanley in their Award dated December 19, 1995.
However, on the basis of fact and law I am unable to concur with the
findings in this subsequent Award.
On page seven (7) of the Award my=colleagues find that Mr. Stanley was
.... ' .' '~: '. ..... '" * i, '. ' :"- .... , : ,~.;..: ':~ : ..
'not physiCally able to perform the washing of mirrors in the washrooms.-As such they ......
find that the College was entitled to dismiss Mr. Stanley at that point because:
"It was clear that ["Mr. Stanley was] unable to perform all the duties of his
position" because it had been determined, on what we find was a clear and
cogent basis, that he was unable to wash mirrors."
I am unclear as to what that cogent evidence is, since it is not set out in that fashion in
the award. However, on my review of the evidence I find no such support for that
proposition.
The College galled William Fred Utton, Senior Manager of Physical
Resources at the Newnham Campus, to testify as to Mr. Stanley's ability and work
history dudn9 the period under review. While his eviden(;e was different in chis1', In
cross-examination Mr. Utton agreed that:
- When Mr. Stanley was reinstated following the earlier award, on January
15, 1996, he wasn't asked to do mirrom in washrooms. .
- That other people besides Mr. Stanley did washrooms and that he could
not speak to how the Lead Hand, George, assigned the work of cleaning
of mirrors.
- That'he agreed that he couldn't say that Mr. Stanley couldn't or wouldn't
clean mirrors. He could only say that he recalled that there was some
trouble for Mr. Stanley doing mirrors.
-. That he ag.ree~.that by the June.~14, 1996 meeting there was no written
record of Mr. ~tanley having a Pr'oblem doing.mirrors a.r~d ~b._e was in
agreement that he was"-nof"sUre as to the extent' if any tha~:~.Mr. Stanley
had been cleaning mirrors in bathrooms.
(' Likewise Susan Vallance was called by the College_ At the time of the
events in question she w%"~he DireCtor for Equity and Human Rights and Acting
Director for Employment Relations. At the June 4, 1996 meeting [EX. '1 BI whioh she
had arranged, alternative accommodations were put forward by her to address the
shoulder problem that had developed due to window washing. One was to reduce the
amount of window washing; another was to set out a different set of tasks and a third
was to return to the original list of agreed upon duties that had been set out in the
December, 1995 Arbitration Award and within those duties was the washing of mirrors.
Therefore in my respectful view I cannot oonour that there is clear and cogent evidence
that Mr. Stanley was unable to perform the cleaning of mirrors and therefore i am
unable to agree with my colleagues finding that he was in breach of Paragraph 6(a)
the Conditional Return to Work.
In the second full paragraph on page 15 of the Award, my colleagues set
out policy considerations bertlncl a 'last c~ance settlement", However as to the issue of
strict compliance surely the employer as well. case before this
that
involves
In
the
Board one terms was significantly altered. A new key duty of window washing was
added to the extent that it constituted some 80% or more of his duties. That added
function, plus a fall on a wet floor resulted in shoulder problems that lead eventually to
corrective surgery. As I understood the initial award, the major complalnt was that of a
bad back. Surely, in the strict application of the terms of reinstatement, a new and
dist[nct work related injury that adses as a result of the assignment of a duty that falls
outside of those terms cannot trigger the sanctions that are stated in the original terms
of the reinstatement.
I would also add, that just because Mr. Stanley went along with the
assignment of window was_hing~ that does not.change the requ_ireme.nt to strictly
interpret the "last chan® reinstatement found on ppgs.1 and_ 2. Mr. Stanley is not
party and. at the very least it would require union concurrence to alter that agreement_
Moreover, as I understand the Human Rights Code, tl?d'uty to accommodate a person
with a handicap up to the point of undue hardship, is a continuing obligation. Indeed I
concur with my colleagues, that up until September, 1996 the College is to be
complimented for its continuing effort to accommodate Mr. Stanley. While ! believe this
flows from its legal requirements, I believe the actions by the College, as directed by
Ms. Vallance, shows the Practicability of the College's ability to accommodate. It wag
only upon the return to work after his sick leave of Mr. Mel Fogel, the Director of
Employee Relations, that the grievor was terminated. Indeed Mr. Fogel made it clear
that had he still been at work he would not have provided the accommodations to Mr.
Stanley that resulted from the June 14, 1990 meeting.
Turning to the second branoh of the Employer's grounds for termination, it
is my respectful view that the decision in Re: O.P.S.E.U.v. Ontario Ministry of
Community and Social ,Services. Can. Abr. (Z"'~) 319.560 is directly on point with this
grievance. Mr. Stanley has been found by the WCB (now WSIB) to have sustained a
s~oulder injury at work tl3at was compensable. I am with respect unable to agree with
my colleagues, views as expressed on page 15 of the award. In the first full paragraph it
reads;
"It is apparent that the absences Mr. Stanley suffered following April 19, 1996, as
well as his inability to perform his job, cannot be viewed as the singular result of
the compensable injury."
It was not solely the fall at work that constituted the WCB injury. Rather it was the
combination of being assigned window washing and the fall at work that resulted in the
WCB finding of a shoulder injury. Therefore that constitutes a handicap which is
subject to the Pr0tect[Qns pf the ~Human Rights Code (H.R.C~.) The fact that the WCB
did not grant benefitS, for the a_bsence:from July 3, 1996 to,S_eptember 5, 1996 'has
nothing to do with the fact of Mr,. Stanley having a handiCap i,e. 'a Work related Shoulder
injury, He did not receive WCB benefits for that period: of tir~e because Mr. Stanley'
was in receipt of sick benefits from the. College. Therefore the first point of rejection by
my C°ileagues as found in the first full paragraph On Page '18 of this aTM c~-nnot:i~' my
respectful view be supported by the evidence.
Dealing with the second and third reason for denying Mr. Stanley the protection of the
H.R.C., I find a contradiction in my colleague's views. On page 18 in the third point the
Majority states that they had already directed their minds to the H.R.C. when they
established the last chance reinstatement and stipulated that the calculation of the
average for Mr. Stanley would include absences "for any reason". Yet on page 19 my
colleagues state in the last sentence of the first full paragraph;
"In the instant situation, the handicap relied on by the union was not even known
at the time the Board set the absenteeism standard in the terms of its last
chance reinstatement because he had not yet slipped on the wet floor and
applied for benefits from the WCB".
I agree fully with the latter comment but not the former. If the "last chance"
reinstatement is to be read strictly as stated in this award, it doesn't stand for the
proposition that it is inclusive of a WCB handicap shoulder injury that arose following'
his return to work in January. 1996. Therefore, the College cannot make use of the
terms of that conditional reinstatement to justify its actions in terminating Mr. 'Stanley in
September, 1996 because of absences directly related to his fresh disability i.e. WCB
shoulder injury. Indeed the College made no effort to look to what further
accommodation would be required, if any, and given that Mr. Stanley has had surgery
to repair the shoulder, I believe that there is no such evidentiary basis to find undue
hardship exists for the College to have Mr. Stanley working for them.
Therefore, as indicated in the ratio of the case cited above, as well as the
decision of:
Ontario Human Rights Commission et al. and Gaines Pet Foods Corp. et al .16
OR(3d) 290 1993'O.J. No. 2973,-iOnt. Crt. Dec 9, 1993.
would find that the discriminato~ standard applied bY the College in terminating .Mr.
Stanl'ey'ir~ september, i9961 Violates the H.R,C. and s°.. Cannot be S~stal%dl ......
I would have reinstated Mr. Stanley to his employment.
Respectfully submitted,
/
Brian Switzman
Union Nominee