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HomeMy WebLinkAboutReid 94-01-18 (Hereinafter re~erred to as the ~llege) ~IO ~IC S~VI~ ~~' ~I~ (Hereinafter referred to as the Union) ~ IN ~ ~ ~ ~ ~I~ ~ ~Y ~ID (~ ~36 ~T) ~ ~ ~I~TI~: ~il Brent Robert 3. ~lliv~, ~llege N~inee Sherril Murray, Union N~inee ~P~S: ~ ~ ~LL~: Stephen C. ~nd, ~unsel Sally Layton, Vice President H~n Resources ~ ~ ~I~: Alick Ryder, ~unsel Bonita Clark ~rilou ~rtin, Local President ~ry Reid, Grievor Heari~ held in Toronto, ~tario on Nov~er 29, 1993. ~ISI~ ~e griev~ce (Ex. 14) is dated February 22, 1993 ~d alleges that the grievor's ~lo~nt with the college was wro~fully te~inated. There were no preliminary objections concerni~ jurisdiction or arbitrability. The facts are not really in dispute. The action which precipitated the griev~ce was a letter (Ex. 9) which the College sent to the grievor on 3anuary 1~, 1993. ~e ~dy of thai letter is set out below: We have tried unsuccessfully to contact you over the past two ~nths to ascertain your ~dical prognosis and to dete~ine when you will be fit to return to work. We have tried to contact you at the address you provided to ~ in Sept~er, 1992 and I have tried to contact you by phone but we have been unable to reach you. As I was unable to contact you directly, I contacted Dr. Palad of the Malton Medical Group who provided you with the Doctor's note which you presented to the College in September. Dr. Palad's note said that you would be referred to Dr. Banik in Bran~ton. Dr. Palad's office said that he has not seen you since the note was written in September, 1992. I then contacted Dr. Banik's office and was informed that you have not been treated by Dr. Banik. The original appointment, scheduled for early last Fall, was cancelled and has not been rescheduled. The contact n~nbers that Dr. Banik's nurse has for you are theM alton Medical Clinic and a number at the College. We were unable to reach you at either n~rber. In view of the situation, it is our position that you are not followin§ the course of action outlined in your doctor's note to the College and that although the note said you would be receivin~ medical attention, this is not the case. We have, therefore, reached the conclusion that you no longer qualify for sick leave. In accordance withArticle 15.6.3 of the Collective A~reement the College is takin~ the position that you have abandoned your job. As a result, your employment is de~ned to have been terminated. We are forwarding a copy of this letter to your last known address and to the President of your Union Local in an effort to inform you of our actions. The grievor is 35 years old and separated. He has two children a~ed 1# and 9 who are currently livin~with his parents. He sees his children once a month. In 1987, the year he separated franhis wife, the grievor and his children moved into his parents' house. His father, Sam Reid, is an et~loyee of the College and has served'as President of the Local Union. In April, 1988 the grievor began working for the College in the Printing Department. He was laid off from that position and moved into a Handyman position in the Maintenance Department in 1990. Durin~ his time in the Maintenance Department he became a Technician and occupied a ter~orary position as such. When that job was finished he then became a 3anitor in 3une, 1992. In 3une, 1992 the grievor left his parent's homel his children stayed there. The grievor was experiencin~drug and alcohol abuse problems. He stopped work around the beginnir~ of Septedber because he was sufferin~a lot of physical and mental health problems. Those problems eventually led him to see his 3 personal physician, C. G. Palad, who supplied him with a note (p. 2 of Ex. 8) which diagnosed depressionandanxiety. The doctor said that the grievor should be off work from September 3rd "indefinitely", and that he was being referred to a psychiatrist, Dr Banik. The College accepted this note of evidence of his disability, and the grievor was placed on the short tem disability plan. On September 2#th the grievor came to the College to attend an interview for a job posting. The grievor testified that he did not remember much'about that day; however, he did recall causing a disturbance. He faintly recalled being asked for his new address, and conceded that it was possible that he received the letter (Ex. 3) which Sally Layton, then Director of Huuan Resourcesi sent to him. It seems clear that the grievor was "out of control" that day at the College. The evidence indicates that he was abusive and complained that his father had been representing him and in the course of doing so had been making decisions without his authorization. He was asked by the College to provide it with his new address and phone ntraber so that he could be contacted directly. gollowing the September 24th incident Ms Layton wrote the following letter (Ex. 3) to the grievor at his father's hane: The purpose of this letter is to express my concerns regarding your · .. behaviour in the Havan Resources Department on the raorningof September 24, 1992 and to offer our assistance with your medical problems. According to members of the staff within my Department, the manner in which you addressed a nauber of individuals, including Regina Park, Manager, Labour Relations, was both abusive and intimidating. In addition your threatening c(mments to Brian Wilson, a support staff colleague, were so disturbing that he suggested the police should be called. I must advise you that your use of foul language and your aggressive behaviour are not acceptable in the College envirommnt. We understand that you are currently under a doctor's care. It may be that you were unwell on the morning of September 24 when you exhibited this unusual and disruptive behaviour. However, as I am sure you can appreci- ate, such incidents are most upsetting to members of our staff and can not be tolerated. Cary, the College is certainly willing to make every reasonable effort to assist you with your recovery. ! am available to help you in any way possible and would encourage.you to contact me in this regard and keep me advised regarding your progress. We will of course require a full report from your doctor prior to your return to work. In order to ensure that conmunications between the H~nan Resources Department and yourself are both timely and effective, I am requesting that you provider ny office with an address and telephone number at which you may be reached. I would appreciate having this information no later than October 9, 1992. The College will henceforth be conmunicating with you directly rather than through your father, Sam Reid. I am confident that direct contact will prove more satisfactor~ to all concerned. Please do not hesitate to' call me at if I can be of further assistance. The grievor subsequently provided the information requested, which is contained in the change of address form (Ex. #) dated October 2, 1992. The College then heard nothing more from the grievor regarding his treal~nent or progress. On Novenber l, 1992 the grievor was arrested for dangerous driving. During the course of that arrest his ankle was broken in three places. The grievor was taken to North York Ceneral Hospital to have his leg put in a cast, then taken to the police station and ultimately to jail. He was taken to the Whitby 'Correctional Centre where he renained in the infirmary for approximately #0 days. At some point the grievor was convicted, and was incarcerated in various institutions until his release on September 28, 1993. During his term in iail he was in the Toronto Don 3ail for a time and also in the Metro West Detention Centre. He always had access to a telephone, and was in constant contact with his children by telephone. He also kept in contact with his father who was aware from Nov~nber I, 1992 that the grievor was in jail and that he had broken his ankle. While in jail the grievor went to AA meetings and Bible study classes. He was also in the Rideau Correctional and Treatment Centre from April to late July or early August, 1993. At Rideau he participated in the relapse prevention program, the anger management program, the relationships program,, Bible study classes, and AA meetings. He asked for the transfer to Mimico because of the long distance charges involved in telephoning his children from Rideau. In 3uly, 1993 he was cleared to do physical work by a physician at the St. Michael's Hospital Fracture Clinic. From then on until his release he was given cornuunity work such as cutting grass, painting, doing flower beds, etc. The College was not informed of the grievor"s incarceration until sometime around September g, 1993, the first date set for the hearing in th/smatter. The Union was not really aware of his incarceration either until September, 1993. The grievor's father, Sam Reid, knew but did not tell either the College or the Union. Ms Laytonand the grievor's father see each other regularly in the course of their working days and are on friendly terms. From time to time Ms Layton would ask Mr Reid where the grievor was and be told that his whereabouts were unknown. On November 27, 1992 the College decided to take steps to find out about the grievor'smedical condition and prognosis. A letter (Ex. 6) was sent to him at his las{ known address requesting current inforraation and a doctor's report by December 15th. The letter was returned to the College with the notation on the envelope that the grievor hadmoved. On Dec~nber 16, 1992 the College decided to stop his pay. It was hoped that this would move the grievor to contact the College. The College heard nothing from the grievor or from anyone acting on his behalf. On January 18th, before writin~ the letter informing the grievor of the termination of his ~n~ployment, Ms Layton also telephoned both Dr Palad and Dr Banik, the only two physicians it knew who were supposed to be treating the grievor. Shew as informed that Dr Palad had not seen the grievor since Sept~nber 6 and that Dr Banik had never seen the grievor. On Oanuary 18, 1993 Ms Layton also sent a meno (Ex. ~, p. 1) to all managers and to the grievor's supervisor, with a copy to the Union, informing them in brief of the situation and of what had been done. It also informed them that in view of what had happened the College was taking the position that the grievor had abandoned his en-ployment and was so informing him. It also asked any of them who heard from the grievor to contact Ms Layton. No one informed Ms Layton that he or she had heard from the grievor. In the meantime, as we now know the grievor was in iail and as such unaware of the fact that his pay had been stopped because he did not have ready access to his bank account. The grievor testified that he did not'knowwhat his father was telling the College. He said that he "just figured [he] would leave it in his hands" and that "hopefully [his] father would do what would have to be done". At the relevant time the grievor's father was the inmediate past President of the Local Union. /he grievor had been in jail once before while an erployee of the College. At that time he was granted leave of absence without pay for the two or three months~equired to serve his sentence. The leave of absence was arranged through his father. /he grievor admitted knowing that it was possible to secure a leave of absence without pay while in jail and that in order to secure such a leave one had to request it. ~e said that he supposed that he discussed with his father whether to request a leave, but he said that he did not know what his father did with the infora~tion he had. The grievor said that his father told him that he would lose his job this time, but that he still thought that his father would do what was necessary to keep his job for him. It would appear that on November 30, 1992 the grievor wrote letters to the 7 College and the Union (Exs. 11 & 12). The letters were not received until February, 1993; the envelopes in which they were mailed bear two postmarks. One, which appears to have been made by a postage meter, shows the date February 1, 1992; the other, which is a black Canada Postmark shows the date February 1, 1993. The only logical conclusion is that the two letters were mailed on February 1, 1993. Both envelopes, which are addressed to the Union Local, bear a return address which is that of the grievor's parents' residence. The gist of each of the letters is that the grievor wishes to be placed on long term disability once his short term disability runs out. The letters also indicate that he will supply medical doc~nentation on request. The letter to the Union specifies that all further correspondence should be directed to him at his mailing address which is his parents' address. If the two letters were in fact written on Nove-nber 30, 1992 then, coincidentally, they would have been written around the time that the College was trying unsuccessfully to contact the grievor to find out about his condition. There is no mention in either letter of the grievor'sbrokenankle, or anything about his treatment, or being in jail. Given the grievor's own evidence, it is certainly clear that he was trying to keep the Union-a~d the College from knowing that he was in jail. Ms Layton then wrote to the grievor on February 12, 1993 (Ex. 13) as follows: We have atterrpted to contact you nunerous times over the last four months. We have written to your last knovaq address and attempted to reach you by telephone. The College discontinued your pay inan atte]~t to contact you on December 16, 1992. To date we have received no communication from you. ! have attached for your information correspondence which was sent to you on November 27, 1992 and 3anuary 18, 1993. The letter of 3anuary 18th confirms that your employment from (sic) the College has been terminated for the reasons stated. During the week of February 1, 1993, the President of O.P.S.E.U. Local 557, MarilouMartin informed me that I would be receivinga letter from you. ! have still received no word from you. Yesterday, Marilou gave me a copy of two pieces of correspondence which she received from you last week, dated November 30th. The first letter is addressed to Miss Mary Lou Martin and Mr. Sam Reid. The second letter is addressed tome. You indicate in the letter addressed to Marilou Martin that you have copied me. To date, I have not received any correspondence from you. Gary, as indicated in rny letter to you of 3anuary lg, 1993, the College's position is that you have abandoned your position and that your employment is deemed to have been terminated. The College heard nothing from the grievor. 'As already noted, the grievance was then filed on February 22nd. During the course of the grievance procedure the grievor had contact with the Union Staff Representative responsible for the Local, 3ohn Ford. The grievor indicated that he would always be the one to telephone Mr Ford. It would appear that Mr Ford, like almost everyone else, was never told that the grievor was in jail, but was informed that the grievor was insome sort of rehabilitation progrmm. The College's third step response to the grievance (Ex. lg) and Ms Martin's testimony both indicate that the College was told that the grievor was receiving treatment for. substance abuse, that the Union did no~ have any medical doct~nentation concerning the grievor, but that it was expecti~gsomeand would forward what it received to the College. The College's unrefuted evidence is that nothing was received. Ms Layton testified that she indicated to the Union that if the grievor was seeking rehabilitation it would be prepared to look at the case again. Following his release from jail the grievor went to the Newport Trea~nent Centre in Port Colborne. There he participated in programs related to his substance abuse. From there he went to the Wayside Drug and Alcohol Recovery Home in St. Catharines, where he currently is. That home is for people who are recovering from drug and alcohol abuse. Although the grievor did have a drink 9 and smoke some mariiuana in jail, he has not had a drink or used drugs since his release. To complete the information concerning the grievor's condition there was a medical report from Dr Palad filed (Ex. 16). That report, dated November 23, 1993, is reproduced below: This 35 year old male started attending our Medical Clinic on April 26th, 1991, for his back and left leg pains. He was under Dr. Thakkar's care till December, 1991. He works as a maintenance worker at George Brown College in Toronto since March of 1991. He claimed to have had a back injury 2 years ago. His lumbar spine x-rays showed "slight relative disc space narrowing at L-t, 5. He has been taking Percocet, one every 6 hours and Naprosyn SR, 75mg. one a day, p.c. He claimed to have been divorced 3 years ago and living with his parents with his 2 children, ages 6 and 3. He was given advice regarding drug addiction - (Percocet). He was referred and seen by Dr. R. Zarnett, Orthopedic Surgeon in Toronto, on 3uly #th, 1991. His impression was - mechanical low back pain. He requested CTscanbooked for 3uly 2#th, 1991. This apparently was not done as he did not keep his appointment. I first saw him on 3uly 1st, 1991, with back pains. He claimed to have fallen two months ago when the ladder he was on tipped and he fell to the ground, landing on his left buttock. He claimed to have right sided back pains, left knee pain radiating down into his leg. Further Percocet request was refused on December 1st, 1991, but was given with a new injury to his back when he slipped on ice on 3anuary 31st, 1992, February 15th, March 3rd, 8th, April l#th, May 3rd, and 3une 13th, 1992. 'On.September 18th, 1992, when I saw him he was depressed, but oriented as to time and place. He was distressed that he was d~noted at work from a trade person to janitorial work in Sept~nber of 1992. He apparently also had lost custody of his 2 children and was forced out of his parents home. · .. He claimed to have lost access to his children. He was upset that he lost his day job and was transferred to night shift and was requesting help to be moved back to his day shift as he was undergoing extreme stress and anxiety with what is happening to the situation with his children and being forced out of his parent's home, where he used to live. He was referred to Dr. T. Banik, Psychiatrist in Brampton, but his appointment for Sept~nber 2~th, 1993, was never kept. He was seen again on November 22nd, 1993. He apparently was in a Correctional Institution from September 28th, 1993, to November 1st, 1993, for dangerous driving and while there had received treatments for his drug problem, t~hen seen this day heseemed to have an insight to his problem and has been following the program and if (sic) off any addiction drugs. He seemed sincere and willing to further rehabilitate himself. l0 He should be referred to a Drug Rehabilitation Program and he needs all the support, emotional and physical, that is needed to make him once again a responsible productive member of our society. I am convinced that Mr. Reid has now been fully aware of his problem, how to overcome it through his' own will power and necessary support from professional people and agencies that are specialized in these kind (sic) of multifactorial problems. Given a chance and the support he needs, he will regain his self-confidence, esteem and responsibility and diligence to hold onto useful gainful employment. The College's position, stated simply, is that this is a case in which Article 15.6.3 applies and the grievor's amployment must be deemed to be terminated by action of that clause. The College subnitted that it granted the grievor sick leave in September, 1992 and then heard nothing from him despite its attampts to contact him. It argued that upon learning, in 3anuary that the grievor had not been seeking medical help, there were two reasonable conclusions that could be drawn; either the griev0r had been using his sick leave for some other reason, or he was absent without prior approval because he no longer qualified for sick leave. It argued that this was not a disciplinary action, but that the parties had negotiated a clause which gave the specific result that would flow from the circ~nstances set out in it, and which displaced any authbri~y a board of arbitration would have to exercise discretion to vary the outcome. .. The Union's position, in su~,~ry, is that the events do not fall within the four corners of the language of Article 15.6.3 because there was no abandor~nent of his job by the grievor and because the grievor did not wilfully absent himself from work for reasons other than the sick leave which he was taking. It also argued that s.#6(#) of the ColleKes Collective Bar~ainin~Act authorizes a board of arbitration the right to exercise discretion to vary disciplinary penalties. The Union acknowledged that the College was not blameworthy and had acted reasonably, but argued that given all of the circ~nstances of this case, 11 including the grievor's alcohol and drug addiction and his depression, it should be concluded that he was unable to exercise the level of judgment which the College could expect and that there was no wilful refusal to keep in touch with the College. It argued that his reluctance to let the College know he was in jail was motivated by his fear of losing his job and should not be characterized as having abandoned his job. It further su~nitted that it was not unreasonable for the grievor to believe that the Union, through his father, was keeping the College informed of the specifics it required. 'The Union sukmitted that there would be no prejudice to the College if the grievor were returned to work on some sort of conditions, and that the prejudice to him would be very significant if his dismissal were upheld. The relevant part of the collective agreement (Ex. 15) is reproduced below: 15.6.3 Seniority Lost Seniority shall be lost and ~ployment deemed to be teminated if the e~rployee: - utilizes a leave of absence for other than the reason for which such leave of absence was granted; is absent without prior authorization or approval for five consecutive working days unless reasons satisfactory to the College are subsequently accepted; The parties also referred us to the following cases: Humber ColleRe and OPSEU, Howard Grievance, (1991) unreported (Sin~nons); Re Guelph General Hospital and Canadian Union of Public ~mployees, Local 57 (1982), 5 L.A.C.(3d) 289 (Sal~nan); Re United Cart, Division of TRW Canada Ltd. and United Automobile Workers, Local 397 (1981), 3 L.A.C.(3d) 106 (Rayner); and Re Corporation of the City of Toronto and Canadian Union of Public Employees, Local 43 (1978), 20 L.A.C.(2d) 17 (Brent). 12 Article 15.6.3 is one which provides for loss of seniority and a deened termination of employment if certain conditions are satisfied. It is not a disciplinary clause, and neither the arbitral jurisprudence cited to us, nor the arbitral jurisprudence generally would recognize it as such. Because this clause is not disciplinary in nature, there is no discretion to vary the penalty. Once the conditions set out in the article have been satisfied, then it must follow that the consequence which the parties have agreed upon in bargaining must follow. That is stated clearly in Guelph (supra) and the other cases which deal with such clauses. The discretion to vary disciplinary penalties in s. #6(4) of the Colleges Collective Bar~ainir~Act (appended) does not assiSt the Union's case here. That provision only applies to discipline where just cause must be shown to justify the action. Article 15.6.3 is not a disciplinary provision, despite the fact that serious consequences flow from the specific situations set out in the article. The "cause" for ending the employment relationship is stipulated by the collective agreement, and that "cause" triggers the consequences automatically. We therefore find that we have no discretion to vary the result should the conditions of Article 15.6.3 be met. This case is different from the City of Toronto (supra) because that case involved a disciplinary action taken by the employer. Since the board of arbitration there had the discretion to vary thedisciplinary penalty, the real question was whether there was reason to exercise discretion. The exceptional circmmstances present in that case moved the board of arbitration to exercise its discretion in favour of the grievor and to reinstate him. In this case there is no doubt that the grievor was trying to keep the College franknowing that he was in jail. The only person with any connections 13 to the College or the Union who knew where the grievor was andwhat he was doing was his father. On the evidence before us we cannot accept that the grievor was ca~nunicatingwith his father as Union official in order to have the latter act as his go between or representative in dealingwith the College. Further, it is inconceivable that saneonewho was trying to keep the College from knowing that he was in jail would be instructing someone else to communicate freely with the College about what he was doing and how his treatment was progressing. The grievor's evidence was that he was leaving it ug to his father to do what had to be done; however, there is no indication that in keeping silent about his incarceration his father was doing anything other than what the grievor wanted. Even though the grievor was diagnosed as being depressed in Septeuber when his leave carmenced, and even though he was battling hissubstance abuse problems then, pres~rmbly he was competent to stand trial in November and to make decisions about his defence. His employment situation was clearly in his mind, because he did discuss the rrmtter with his father, who reportedly told him that he would lose his job. Following that, and given the grievor's concerns, it is not unreasonable to conclude that he decided to keep the College in the dark for as long as possible, and that his father acted in accordance with that decision. The College used every reasonable means at its disposal to try to contact the grievor and to detemine what his status was. When it could not learn anything about the grievor's condition or his whereabouts it stopped payments to him in the hope that he would be moved to make contact. When the College did that, the effect was to end the grievor's sick leave. The grievor was then absent without prior approval or authorization, and after five consecutive working days the College could invoke Article 15.6.3 failing the receipt of sane satisfactory explanation. It would also be reasonable to conclude, having made inquiries to determine whether the grievor was being treated by his doctors, and having learned that he had not been seen since September, and not knowing where the grievor was despite taking all reasonable steps to locate him, that the grievor was not using his sick leave for the purpose for which it was intended. That is, under the circ~nstances, in 3anuary it would be reasonable for the College to conclude that the grievor was not in trea13nentand should be pres~ned to be well enough to return to work unless the contrary could be shown. Had the grievor been open and honest with the College and the Union in 3anuary or February, 1993 or during the grievance procedure, then it may have been that the College would have accepted his reasons. He was not. Even after 'his discharge he tried to hide his incarceration from both the College and the Union. Had this been a situation where discretion could be exercised by a board of arbitration, it would have been difficult to do so where someone has not been cc~npletely frank. In Cuelph (supra) Arbitrator Saltman, dealing with collective agreement language similar to that in this case, said at page 299: The issue to be determined, therefore, is whether the grievor's 'explanation for her absence ought to have been accepted by the hospital. The issue is not whether an arbitrator would have accepted the grievor's .... explanation. Article ll.05(d) expressly states that the explanation must be satisfactory to the hospital. Therefore, the hospital's decision must .,, stand unless it is found to have been arbitrary, discriminatory or in bad faith. In the case at hand, no "reasons satisfactory to the College" were presented. The issue is not whether we think that the College, once it learned the entire · story, should have accepted those reasons; the issue is whether in not accepting them the College acted .in a manner that was arbitrary, discriminatory or in bad faith. On the evidence before us we cannot make such a finding. If the grievor is to be given another chance, it must be the College's 15 decision whether or not to rehire him. We cannot find any violation of the collective agreement, and we find that by virtue of Article 15.6.3 the grievor's seniority and ~nployment were properly considered to have been at an end. For all of the reasons set out above the grievance is dismissed. I3ATEI) AT LGhEX~, GNTARIO THIS 1 ~T~Y OF aOX' '-~ , 199 ~ Gal I Brent Robert 3. Gallivan Col lege Nc,ninee Union Nominee 16 APPI~DIX (4) Where an arbitrator or arbitration board referred to in this section determines that a disciplinary' penalty or dismi.~sal of an . employee is excessive, the arbitrator or arbi: ' tration board, as 'the case may be, may sub- stitute such other penalty for the discipline or dismissal'as the. arbitrator' or' arbitrati6n board considers just 'and reasonable in all the circumstances.