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HomeMy WebLinkAboutQuenneville 01-04-12 L. lOCl OD O LI O:5 IN THE MATTER OF THE COLLEGES COLLECTIVE BARGAINING ACT, R.S.O. 1980, C.74, AS AMENDED AND IN THE MATTER OF AN ARBITRATION BETWEEN: ONTARIO COUNCIL OF REGENTS FOR COLLEGES OF APPLIED ARTS AND TECHNOLOGY (FANSHAWE COLLEGE) The College - and - ONTARIO PUBLIC SERVICE EMPLOYEES UNION The Union AND IN TIlE MATTER of the grievance of Cheryl Quenneville against discharge. Board of Arbitration: I.G. Thorne, Chairman Ron A. Hubert, College Nominee John McManus, Union Nominee Appearances for the College: Robert J. Atkinson, Counsel Gail Rozell, Manager, Human Resources Appearances for the Union: Richard Blair, Counsel Jean Fordyce, President, Local 109 Barb Ford, Steward Beth Guthrie, Steward Cheryl Quenneville, Grievor A hearing in this matter took place on March 5th, 2001, at London, Ontario. AWARD The grievor's employment as a Caretaker at the College was terminated on August 29th, 2000. This action follCwed the College's determination that the grievor had misled it about the circumstances of an absence from work, the essential facts of which are not in dispute. The issue before us is whether, in all the circumstances, the penalty of discharge should be modified. Much of the evidence before us consisted of counsels' stipulation of the facts. The grievor testified herself. The grievor had been employed at the College since December 1986. At the time of her discharge she had been working night shifts from 10:30 p.m. to 7:00 a.m., Sunday to Friday. She had no disciplinary record but had had problems with attendance. Her record of absenteeism was described as the highest in her department. In this connection a letter from her supervisor dated May 21st, 1998, was in evidence. The letter referred to an earlier letter, dated March 30th, 1998, which her supervisor indicated a willingness to consider removing from her file if her attendance improved; a notation at the foot of the letter indicated that the earlier letter had indeed been removed from her file on September 17th, 1998. In his letter of May 21st, her supervisor had stated that for future absences he expected a doctor's note for each working day that the grievor Called in sick. More recently the grievor had been off`work in February 2000 for a back injury for which she was compensated by the Workplace Safety and Insurance Board. The absence which led to her discharge was from Sunday, July 23rd, to Sunday, August 20th, 2000. On July 23rd, the grievor telephoned her supervisor, Jim Bates, at his home. She left a message with Mr. Bates' wife advising that she was sick and would not be in to work that night. At the hearing the grievor stated that she had been bending over a coffee table at her home when she felt something hurt her back. She did not feel able to go into work and for about a week, she said, she did not phone her doctor to get an appointment as she was hoping the problem would go away. On July 31 st, she called Mr. Bates at home, telling him that she had hurt her back. He asked her whether the incident was work-related and she replied that it was not. Mr. Bates then spoke to Olive Murray, the Occupational Health Nurse at the College, and told her about the situation. Ms. Murray tried to contact the grievor and was able to speak to her on August 2nd. The grievor told Ms. Murray that she had a back problem. She also told her that she had been to see her doctor, Dr. Abbasakoor, about her back and that he had advised her to take physiotherapy. She stated to Ms. Murray that she would be seeing Dr. Abbasakoor again on August 15th. These statements were not true; at this time she had had no contact with Dr. Abbasakoor. Ms. Murray told the grievor that she would be sending her a Functional Abilities Form and that the grievor should have her doctor fill out the form and return it to Ms. Murray. At least after this call the grievor knew that she would have to produce some medical documentation for the College, and in fact she stated that her understanding was that she would have to produce a medical note after three days of absence. In view of the requirement in Mr. Bates' letter of May 21st, 1998, she appears to have been mistaken in this respect. She disagreed that she was required to produce a doctor's note for each day off (the only point on which there was any dispute about the facts). Whether the requirement was for a note after one day or three, however, it was already clear that one would be required for this absence. On August 17th, the grievor left a voice mail message for Ms. Murray stating that she had seen her doctor and was to see him again the following week and that she would continue with physiotherapy. These statements also were not true; the grievor had not yet seen her doctor and there was no evidence that she actually undertook physiotherapy doing this absence. She had tried to call her doctor, she testified, when she was into the second week of her absence. At first she had had no answer and then there was a message on an answering machine which said that he would be on holiday for two weeks. The name of another doctor was given for emergencies. However, the grievor testified, she did not want to see another doctor: she had hurt her back in February and did not want to go to a doctor who was not familiar with her as she did not know whether the latest problem was a new one or a recurrence; Dr. Abbasakoor had been her doctor for about 25 years. The grievor went to Dr. Abbasakoor's office on August 18th. He had been on vacation from Friday, July 28th, to Monday, August 14th. On this occasion, although Ms. Murray had sent the Functional Abilities Form to the grievor, the grievor did not give it to Dr. Abbasakoor. She asked the doctor for a return to work note and asked him to put on it that she had been unable to work due to illness or injury between July 21 st and August 18th. Dr. Abbasakoor told her that he could not do this as he had not seen her since June 29th, and that he would be lying if he did that. He also told her that she was abusing him and that she could not just take time off work and simply decide to walk in and ask for a medical note. She would not leave without a note and Dr. Abbasakoor did provide her with one. In view of what happened subsequently, the form of this note is important. This is to certify that the above patient was unable to work (to attend school) due to illness/injury FROM: TO: Nothing was filled in beside the words "From" and "To". Instead, Dr. Abbasakoor had written "Not seen" to the right of the lines beside those words. The note also indicated that the grievor had been seen in the office on August 18th, and it included the comment "May return to work on 21/8/00." In cross-examination the grievor was again asked why she had not gone to see another doctor when she had learned that Dr. Abbasakoor would be on vacation for two weeks and she again stated that another doctor would not be familiar with her. She acknowledged that, when she made that decision, she realized that if she did not see Dr. Abbasakoor he would not be able to say that she had been under his care for the period in question and that she wanted a note to cover that period. She stated that she thought that the doctor would give her the note she needed because she had hurt her back before. She thought that he would sign a note saying that he had seen her. On Monday, August 21 st, Ms. Murray received a voice mail message from the grievor, evidently sent during the weekend, advising that she would be returning to work on Sunday, August 20th. Ms. Murray had not received either a doctor's note or the Functional Abilities Form which she had sent to the grievor. 'She therefore wrote to her on August 21st, summarizing her contacts with her since August 2nd and pointing out that she would need a doctor's note with the appropriate dates authorizing her off on sick leave and inviting her to call if she had any questions. In the meantime the grievor had returned to work on Sunday, August 20th. Mr. Bates had asked her for a doctor's note. She told him that she had forgotten it and would bring it the next night. Mr. Bates asked her again at 10:30 the following evening and she responded that she had forgotten the note again. He told her to go home and get it. At 3:00 a.m. during the same shift, Mr. Bates asked the grievor for the note again. She replied that it was at her ex-boyfriend's place. She had not wanted to waken him. She said that she would bring the note the next day. On August 22nd, she did bring a note and gave it to Mr. Bates. This note was a photocopy of the note which Dr. Abbasakoor had given the grievor. The words "Not seen" did not appear. Beside the word "From" was the notation "24/7/00". At the hearing the grievor explained how this had occurred: she had asked a friend to put a date in for her so that she would be able to get paid. She had asked her friend to white out the words "Not seen" and he had done so. The next day the grievor took the altered original and had it photocopied. The photocopy was what she gave to Mr. Bates. She agreed that the effect of this change was to make it appear that Dr. Abbasakoor had been treating her between July 24th and August 18th. Mr. Bates passed the note on to Ms. Murray and to Gail Rozell, the Manager of Human Resources. Ms. Rozell felt that the date "24/7/00" appeared suspicious. She phoned Dr. Abbasakoor's office and spoke to his assistant who told her about what had happened at the office on August 18th, and faxed her a copy of the note which Dr. Abbasakoor had provided to the grievor. The grievor was invited to a meeting with Ms. Rozell and Mr. Bates on August 29th, and was advised to bring a union representative. At the meeting the grievor was asked about the Functional Abilities Form. She stated that Ms. Murray had told her the form was to be filled out only if it needed to be filled out. Questioned further, the grievor stated that Dr. Abbasakoor had told her to have the form filled out by a specialist she would be seeing. In response to further questions, the grievor admitted that she had not taken the form to Dr. Abbasakoor. She was then asked about the photocopied doctor's note she had submitted to Mr. Bates. She stated that she had the original and that she always kept the original and gave the College a copy of her doctor's notes. Ms. Rozell asked the grievor if the note she had given to Mr. Bates was the note which Dr. Abbasakoor had written and the grievor said that it was. Ms. Rozell asked her if the doctor had written the date "24/7/00" and she said that he had. She was asked more than once if she had altered the note and she denied it. Ms. Rozell told the grievor that she thought her story was a complete fabrication and the grievor denied that. Ms. Rozell then explained that she had spoken to the doctor's office and had learned that he had not filled in the date in question and had last seen the grievor on June 29th. She then dismissed her for what she considered a very serious breach of trust. At the hearing the grievor explained what had led her to this state of affairs. She knew that to return to work she would have to have a doctor's note. If she had no note she could not get back to work and she couldn't afford not to get paid: she had three children to take care of by herself Asked to explain why she had not told the truth to a number of people including the union steward who accompanied her to the meeting, she said that she had already lied once when she had told Ms. Murray that she had been to see her doctor. She continued to lie to cover up the first lie. She was ashamed to tell the truth because she had lied and it was embarrassing to her to admit it. The grievor had received income under the College's short term disability plan for the first two weeks of her absence; she did not receive a cheque for the second two weeks after her deception was discovered. Since she had lost her job, she had been on welfare. For the first three months welfare was paid only for the children, she understood, because she had been fired. She was not receiving employment insurance. One of the hardest things she had had to do was to tell her children why she had been fired. She said that she had always tried to teach them to be honest and to tell the truth. In tears, she said that she had never done anything like this before, that she wouldn't do it again, and was sorry. She felt that she had learned a hard lesson. In cross-examination she was asked whether her back was really so painful that she could not come to work for four weeks. She replied that it was painful and that it bothered her when she was doing her housework. She figured that if she went to work, in view of what her job consisted of, it would bother her back more. She was asked whether it was possible that she really could have gone back to work but just decided not to. She replied that she probably could have gone but that by the time she was finished work her back would have been sore or worse. She was asked whether, since she had been fired, she had tried to find other work. She replied "No, not right now". Counsel for the Employer detailed what he argued was a pattern of deception, lies and falsification which was just cause for discharge. The most serious aspect of this pattern, in the College's view, was the falsification of the doctor's note; it was serious enough to say false things about oneself in such a situation but worse to misrepresent the position of another person. It was also critical that the pattern of deception had taken place over several weeks. Counsel urged us to examine the grievor's testimony carefully, taking into account particularly the fact that she had said that her back was so sore that she could not work but at the same time had not gone to see a doctor, and also her admission that she might have been able to go to work. Counsel suggested that the facts supported the view that she had in fact been able to go to work but had decided to take the time off, lying to the College about her medical situation and relying on Dr. Abbasakoor to satisfy the College. In thinking that she could get away with a big absence for no reason, he suggested, the grievor's real mistake was to assume that her doctor would back her up. If that was the situation, her contrition at the hearing was hollow. In support of the College's position, counsel referred to the principles outlined in R~e Quality Meat Packers Ltd. and United Food and Commercial Workers International Union, Local 743 (1998), 69 L.A.C.(4th) 410 (Surdykowski). In that case an employee with seventeen years' seniority was found to have made a false claim for three days of sick leave. Observing that dishonesty in claiming sickness benefits was considered to be a very serious matter going to the route of the employment relationship, Arbitrator Surdykowski had examined possible mitigating factors and had not been satisfied that the employment relationship continued to be viable or that there was any reason to mitigate the penalty of discharge. In the present case, counsel suggested, there was no basis for believing that the employment relationship could be salvaged. It was telling, in his submission, that the grievor had not looked for other employment, raising the possibility that she was relying on the arbitration process to get her job back. Counsel for the Union urged us to exercise our jurisdiction to substitute a penalty under s. 46(4) of the Colleges Collective Bargaining Act. What the grievor had done was admittedly serious, but the board faced a difficult task in weighing the mitigating circumstances: it was difficult to make predictions about an individual's future conduct and this was to some extent a speculative exercise. It was important for the .board to use its own understanding of human nature in weighing what it had heard from the grievor about her future trustworthiness. The grievor and the Union did not seek to hide the fact that she had engaged in a number of deceptions and had misled the Employer in several material ways. However counsel urged us to consider how she said she had become involved in this situation: after telling one lie, she had told more in order to avoid shame, embarrassment and the loss of her job. He stressed her fourteen years of seniority and the fact that she had no disciplinary record. So far as her work was concerned, all the Employer could say was that she had had some attendance issues whose legitimacy had not been questioned. She was a single mother with three young children to support, had little education and limited work experience outside her job at the College. In support of his argument that discharge was an excessive penalty in the circumstances, counsel referred us to Re Canadian Broadcasting Corporation and Canada Union of Public Employees (1979), 23 L.A.C.(2d) 227 (Arthurs); Re Treasury. Board (Department of Supply and Services) and Deschenes and Pharand (1978), 20 L.A.C.(2d) 388 (Weatherill); Re Pacific Press Ltd., A Division of Southam Inc. and Vancouver Printing, Pressmen, Assistants and Offset 13 Workers' Union, Local 25 (1997), 64 L.A.C. (4th) 1 (Devine); Re University of Western Ontario and Canadian Union of Public Employees, Local 2361 (1990), 15 L.A.C. (4th) 189 (Dissanayake); Re De Havilland Inc. and Canadian Auto Workers, Local 112 (1996), 53 L.A.C. (4th) 131 (Rayner); and Re Stelco Inc. (Hilton Works) and United Steelworkers of America (Currie) (1994), 40 L.A.C. (4th) 229 (Tacon). The matter came down to one of the board's being satisfied by the grievor's expressions of regret and her recognition that her conduct had been improper. It had been suggested that it was suspicious that her recognition had come late in the case, but the board should bear in mind the grievor's embarrassment and her evidence about the shame she had felt in explaining the situation to her children. If the board was satisfied that she had indeed learned a lesson, that and her personal situation and fourteen years of seniority should together suggest a modification of the penalty so that she could return to work. Dishonestly obtaining employment benefits is generally regarded as justification for the most severe discipline, frequently discharge. Where absence from work is concerned, an employer must to some extent rely on an employee's honesty as to the reasons for the absence and in deciding to pay for sick leave. When an employee fraudulently obtains sick leave to which she is not entitled, what she does goes to the basis of the employment relationship because the employer must question whether the individual can be relied on in the future to be an honest and dedicated employee. Once dishonesty of this sort has been established, by the time the matter gets to arbitration, it is for the employee to show that the penalty should be mitigated and that it is reasonable to think that the employment relationship can be satisfactory in the future. That is the grievor's situation. The awards put forward by the Union illustrate circumstances in which boards of arbitration have been prepared to return to the workplace employees who have committed dishonest acts in the past. In Re Canadian Broadcasting Corporation (supra), an employee who had wrongly used the credit of his employer for his own financial benefit (without loss to the employer) was reinstated; Arbitrator Arthurs took into account his financial difficulties, his eight years of good service and the arbitrator's acceptance that the grievor was devoted to the employer and that there was hope of rehabilitation. Re Treasury Board (supra) dealt with instances of amendment of a doctor's sick note. One employee was involved in an isolated incident and was reinstated with a suspension. (The other employee, with thirteen years service, was found to be involved in a more deliberate scheme and was not reinstated,) In Re Pacific Press, an employee who had operated a hang-gliding business while on sick leave had received a two-month suspension from work and a two-month suspension of benefits, a penalty which was moderated at arbitration, partly for evidentiary reasons (the board declined to receive video tape evidence to the extent that it was offered to show that the grievor took money while he was unfit for work) and partly, it appears, because there was uncertainty that the grievor was actually capable of doing his work. The employee's long service also appeared to be a factor. In Re University of Western Ontario (supra), an employee had falsely claimed overtime. Despite a failure to come clean, the grievor's twenty-four years of service and his superiors' view that he was a good and competent employee, persuaded Arbitrator Dissanayake that this was an isolated aberration on the part of an otherwise honest man and that the element of trust had not been irreparably destroyed. The employee was reinstated. Re De Havilland (supra), involved an employee who had dishonestly denied that he had worked in his video store business while on sick leave and also had obtained benefits under the employer's drug plan for his ex-wife. He was reinstated and it appears that uncertainty about the extent of his disability was a factor, while the arbitrator was "very suspicious" of the grievor's explanation for the claims under the drug plan. The grievor in Re Stelco Inc. was found to have falsified his time cards. However Arbitrator Tacon was satisfied that the grievor was genuine in his testimony that he now realized the gravity of his misconduct and was resolved to change his ways; he also had twenty-eight years of service and his termination had created special economic hardship for him. What is striking about the grievor's situation in this case is that her deception continued over,several weeks. This is not a situation in which there was only a single act of dishonesty. It is obvious that the grievor knew at an early stage that she would have to provide a doctor's note to the College justifying her absence. She admitted at the hearing that she had expected to be able to obtain a note from Dr. Abbasakoor after the fact. In the meantime she lied to Ms. Murray about her supposed visit to the doctor and his supposed advice. She lied to Ms. Murray again a few days later about a visit to the doctor and about her taking physiotherapy, neither of which was the case. The most serious aspect of the mater, of course, was the preparation of the fraudulently amended doctor's note, and this after Dr. Abbasakoor had made it plain that he could not certify that the grievor was unfit to work for the period she claimed. There was a deliberation about that action which was distinct from the untruths she had told earlier. It should be borne in mind that the note which Dr. Abbasakoor did provide did not indicate that the grievor had been unable to work but rather that she was fit to return to work. When one considers that the grievor admitted that she might have been able to go to work, a real question arises as to whether any of her absence of more than three weeks could have been justified in fact. What may be mitigating factors are the grievor's fairly lengthy service, the absence of any disciplinary record, her situation of financial hardship and the remorse she expressed at the hearing. In a case of dishonesty we must also be satisfied that there is a reasonable prospect that the grievor could return to work as an employee on whom the College could rely. We accept that her financial situation is very difficult. However it is disturbing that there is no evidence that she has tried to find other work. While we have not heard evidence about the quality of the grievor's work, the fact of thirteen years of service suggests that it must have been at least satisfactory despite her attendance problems. We acknowledge that there exist mitigating circumstances. The question is whether in all the circumstances the grievor should be reinstated on some terms. We return to the circumstances which led to her discharge and we must say that the extent of her dishonesty over a sustained period amply justified the College's decision to dismiss her. In all the circumstances, we are not persuaded that that decision should be modified. of ~a-~0 01. Dated at Kingston, Ontario, this2,~'~i day I.G. Thorne, Chairman I concur/'&s-s'~fii- J' ~. I~. /-/cc& ~.P~ ~'~F" R.A. Hubert, College Nominee I e~uu-/dissent '~--ff. /Y/cPd~rat,.x.x~S J. McManus, Union Nominee