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HomeMy WebLinkAboutFederkow 89-09-01 IN THE MATTER OF AN ARBITRATION BETWEEN: NIAGARA COLLEGE OF APPLIED ARTS AND TECHNOLOGY - and - ONTARIO PUBLIC SERVICE EMPLOYEES UNION Grievance of Andrew Federkow BOARD OF ARBITRATION: JANE H. DEVLIN CHAIRMAN ALLEN S. MERRITT COLLEGE NOMINEE JON MCMANUS UNION NOMINEE ~ppearances for the College: Janice Baker Glenn Pevere J. Spittle ~ppearances for the Union: Mary Anne Kuntz A. Federkow Meg Rose Date of Hearing: May 24, 1989 OPSEU File Number: 88C315 2 The Grievor, Andrew Federkow, has been employed as a Maintenance Handyman at the College's St. Catherines campus for approximately ten years. Mr. Federkow claims that he was improperly denied four days of his 1988 vacation entitlement. In determining this claim, it is necessary to decide whether the Grievor was at work from Tuesday, May 3 to Friday, May 6, 1988. It is the position of the Union that the Grievor was at work on the days in question while it is the position of the College that the Grievor was on vacation and, therefore, used the credits to which he now claims entitlement. In May of 1988, there were two Handymen in the Maintenance Department at the St. Catherines campus: the Grievor and Hank Harssema. In addition, there was one Caretaker: George Watson. The immediate supervisor of these employees was Mr. Coles, the Plant and Property Superintendent. Mr. Coles had been in ill health for some time and began a period of extended sick leave in the spring of 1988. Thereafter, Mr. Krikorian, the Plant and Property Superintendent for the Welland campus, was assigned for a portion of each day to the Maintenance Department at the St. Catherines campus. Prior to the spring of 1988, requests for vacation by employees in the Maintenance Department were made to Mr. Coles either orally or in writing and, in addition, a calendar was posted in the Department for the purpose of recording individual 3 vacation schedules. Employee attendance was recorded by either Mr. Coles or by Yvonne Michaud. Ms. Michaud has been an employee of the College for approximately fifteen years and, for the past five years, she has worked as a Clerk Supply at the St. Catherines campus. In this position, Ms. Michaud works in a room adjacent to the room occupied by the Maintenance staff. When Mr. Coles went on sick leave in the spring of 1988, responsibility for recording vacations and attendance of employees in the Maintenance Department fell to Ms. Michaud. The evidence as to the events giving rise to the grievance was as follows: The Grievor testified that on May 2, 1988, he telephoned Leslie Meeley, a Security Guard at the College and indicated that he was ill and would not be in to work that day. The Security report which was prepared by Mr. Meeley reveals that the Grievor called in at 6:45 a.m. and indicated that he would not be at work although the reason for his absence is not specified. In any event, the Grievor testified that he reported for work on Tuesday, May 3, 1988 and that he remained at work for the balance of the week. The Grievor explained that he recalled'the week in question because on the previous Friday, which was April 29th, he received a cheque as part of an award of the Workers' Compensation Board in resPect of a claim for disability benefits. The Grievor testified that on the following Friday, which was May 4 6th, his wife telephoned him at work to advise him that a letter had arrived from the Workers' Compensation Board explaining the basis of its award. The Grievor also recalled that during the week in question, Mr. Coles came in to work and the Grievor assisted him in loading boxes into his car. Finally, the Grievor testified that on Saturday, May 7th, he was called in to perform a repair. The Grievor acknowledged that he did not pursue a claim for overtime or for compensating time off as a result of this work but he testified that he did raise the matter with Ms. Michaud and with Mr. Krikorian. In contrast, Ms. Michaud testified that the Grievor was absent for the entire week beginning May 2, 1988. On Monday, May 2nd, Ms. Michaud was advised that the Grievor had contacted Security to indicate that he would not be in to work although she was given no information as to the reason for his absence. Ms. Michaud testified, however, that on Tuesday, May 3rd, she receiVed a telephone call from the Grievor who indicated that his wife had recently been released from a brief stay in hospital and that he wished to take the week as vacation in order to look after his two children. Ms. Michaud testified that she did not see the Grievor for the remainder of the week and that because of the proximity of her work area to the room occupied by the Maintenance staff, it would have been impossible for Mr. Federkow to have been at 5 work without her knowledge. Although Ms. Michaud acknowledged that the Handymen perform their work in various areas of the campus, she testified that they frequently use the door to her work area and that they have their lunch and their breaks in the adjacent room. It was Ms. Michaud's evidence that on a daily basis, she sees each member of the Maintenance staff at least once. Ms. Michaud testified that she also recalled the week in question because Mr. Harssema was scheduled to take one day of vacation on Friday, May 6th. According to Ms. Michaud, Mr. Krikorian was quite concerned when he learned that both Maintenance Handymen would be absent that day. Finally, Ms. Michaud testified that she, too, recalled Mr. Coles coming in to work during the week of May 2nd. It was Ms. Michaud's evidence, however, that she and Mr. Watson assisted Mr. Coles to obtain boxes but she did not observe the Grievor doing so. On Friday, May 6th, Ms. Michaud prepared the weekly attendance report to be forwarded to the Personnel Department and she recorded the Grievor as being on vacation for the week. Ms. Michaud testified that it was her practice to verify the weekly attendance report with another employee and that, in this case, she confirmed Mr. Federkow's absence with Mr. Watson. On Friday, May 6th, Ms. Michaud also marked on the calendar posted in the 6 Maintenance Department that the Grievor had been on vacation for the week. In response to the evidence of Ms. Michaud, the Grievor acknowledged that his wife had been in hospital over the weekend of April 30, 1988. He testified, however, that upon her release on Sunday, May. lst, she was perfectly able to care for their children and that he did not telephone Ms. Michaud and request vacation for this purpose. The Grievor testified that it was not until he returned from a period of vacation in late June of 1988 that he learned that the College had treated the week of May 2nd as vacation. The Grievor initially discussed the matter with Ms. Michaud but denied indicating to her that it was possible he had been off on compensation. According to the Grievor, this suggestion was made to him by Ms. Michaud and, as a result, he contacted the Workers' Compensation Board to confirm that he was not in receipt of benefits at that time. The Grievor also acknowledged that upon reviewing the calendar posted in the Maintenance Department in late June of 1988, he made the following notation beside the week of May 2nd on which he had been marked on vacation: "booked but not taken". The Grievor denied, however, that he made this notation because he had planned a week of vacation to install windows at his home 7 and subsequently had to postpone his vacation because the delivery of the windows was delayed. To support this evidence, the Grievor produced an invoice dated May 11, 1988 to demonstrate that the windows had been purchased following the events in issue. The Grievor testified that, in fact, he took a week of vacation in June of 1988 to install the windows and that this was a departure from his usual practice of taking vacation in July and August. Ms. Michaud testified that it was not until late July, 1988 that she spoke with the Grievor concerning his vacation entitlement. She testified that, at that time, the Grievor indicated that the College had made an error as he was not on vacation during the week of May 2nd. According to Ms. Michaud, however, the Grievor initially suggested that perhaps he had been absent on compensation. Although the Grievor later returned and indicated that this was not the case, he then suggested that he had scheduled a week of vacation to install windows at his home but that there had been a delay in the delivery of the windows with the result that he did not take vacation that week. The grievance in this case was subsequently filed by Mr. Federkow on August 17, 1988 and initially involved a claim for five days of vacation entitlement. At some point, however, the Union informed the College that the Grievor had been absent due to illness on Monday, May 2nd, and the College indicated at 8 the hearing that it was not disputing this claim. It is necessary, therefore, only to determine what occurred from Tuesday, May 3 to Friday, May 6, 1988. In this respect, although the Union took the position that the Grievor's pay stub for week in question supports his version of events, in our view, the stub is of no particular assistance. The stub reflects a deduction from the Grievor's regular pay as a result of an absence due to illness which the Union submitted related to the Grievor's absence on Monday, May 2nd. The College, however, had previously advised the Grievor that there would be a deduction from his pay during that particular pay period due to an absence on April 20th for which the Grievor'had previously received his full pay rather than 75% of a day's pay to which he was entitled. In fact, it appears more probable that the deduction on the pay stub introduced in evidence related to the Grievor's absence on April 20th because none of the documents in the College's possession at the time indicated that the Grievor was absent due to illness on Monday, May 2nd. The Security report indicated simply that the Grievor was not at work while Ms. Michaud recorded the Grievor as absent on vacation. In any event, regardless what may be gleaned from the pay stub about Monday, May 2nd, there was no suggestion that the stub provides any assistance with regard to the Grievor's activities for the balance of the week. 9 Turning then to the oral evidence, Ms. Michaud appeared to be candid and forthright in giving her testimony and there was no suggestion that she bore any animus toward the Grievor. Ms. Michaud was certain that the Grievor indicated on Tuesday, May 3rd that he would be a vacation for the week and this is consistent with the documentation which she completed at the time. Moreover, although the College's practice of recording attendance of employees in the Maintenance Department leaves something to be desired, Ms. Michaud was quite certain that she did not see the Grievor during the week in question. Although the Grievor testified that he was at work from Tuesday, May 3rd to Friday, May 6th, he did not dispute Ms. Michaud's evidence that she is in daily contact with the Maintenance staff. It is also apparent that, even on the Grievor's evidence, his attention was not drawn to the week of May 2nd until sometime in late June, 1988. It was only at that point that the Grievor began to reconstruct what had occurred almost two months previously. During this process, the Grievor spoke to Ms. Michaud and whether it was the Grievor or Ms. Michaud who suggested that the Grievor might have been off on compensation in early May, the Grievor did contact the Worker's Compensation Board to ensure that he had not been in receipt of benefits at that time. This indicates that there was some doubt in the Grievor's mind as to what took place during the week in question. Moreover, while the invoice produced by the Grievor 10 indicates that he purchased windows for his home toward the middle of May, he may, nevertheless, have mentioned the windows to Ms. Michaud as he was attempting to reconstruct what occurred. If the Grievor's evidence were to be accepted, there would then be no explanation for his notation, "booked but not taken" on the vacation calendar beside the week of May 2nd. The Grievor admitted that he has missed a significant amount of time from work on compensation. Evidently, the Grievor has also been absent from work due to illness. In all the circumstances, we are compelled to conclude that ,the Grievor is confused about his activities from May 3 to May 6, 1988 and we find that the Grievor was absent from work on these dates. As there was no suggestion that this absence was attributable to anything other than vacation, we cannot conclude that the College improperly deducted four days from the Grievor's 1988 vacation entitlement. The grievance of Mr. Federkow is, therefore, dismissed. DATED AT TORONTO, this 1st day of September, 1989. Chairman I concur - "Allen S. Merritt" College Nominee I dissent - "Jon McManus" Union Nominee