HomeMy WebLinkAbout1989-0043.Bhanji.89-10-30, ~.. ~ · ONTAFIIO EMF'LOY~-S DE LA COURONNE
- CRQ WN EMPL 0 YE ES DE L 'ON TA RI O
GRIEVANCE COMMISSION DE
SETTLEMENT R/=GLEMENT
BOARD DES GRIEFS
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0043/89
IN THE MATTER OF A/q ARBITRATION
Under
THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT
Before
THE GRIEVANCE SETTLEMENT BOARD
Between:
. . ATU (Bhanji)
Grievor
- and -
The Crown in Right of Ontario
(Toronto Area Transit Operating Authority)
Employer
Before:
B.A. Kirkwood Vice-Chairperson
Mi Vorster Member
A. Stapleton Member
For the Grievor: S. Clarke
vice-President
Amalgamated Tranist Union
' ' Local 1587
For the Employer: ' G. Lodge
Manager
Go Transit
Bearing: July 18, 1989
2
DECISION
The grievor was a part-time employee who worked Saturday and
Sunday shifts.
The grievor was terminated by letter dated February 24, 1989,
effective February 25, 1989 for his failure to report for duty on
January 14, 15, 21, 22, 28 and February 4, 5, 1!, 12, and 18,
1989.
The grievor was scheduled to work on Saturday, January 14,
]989. In the early morning of January 14, 1989, he received a
telephone call from Pakistan that .his mother had just died. He
immediately called the Operafions Centre at Go Transit at 2:50
a.m. to advise his employer that he would be going to Pakistan for
the funeral and to advise the ofice that he was not sure when he
would be returning, although he expected to return in
approximately a week or so. The grievor tried to contact his
supervisor, two further times in the day before leaving to
Pakistan, but was unsuccessful. He told his wife, who was not
going with him, to contact the company to re-confirm his absence
for the funeral. The grievor testified that his wife did so on the
following Monday.
The grievor testified that on January 17, 1989, he became
seriously ill and was subsequently hospitalized from January 19,
1989 to March 2, 1989. The grievor had his father conSact his
wife to arrange for her to'come to Pakistan to remain with him
during his illness. The grievor's wife left Canada on February 5,
1989 and remained with him until he returned to Canada on March 6,
1989.
On the grievor's return, the grievor contacted his employer
and told his employer that he had a medical certificate to
substantiate his illness, as required under the terms of the
collective agreement. His employer advised him that he was still
'terminated.
Mr. Wright, the Superintendant of Passenger Services'
testified that as the Operations Center had recorded that the
grievor would be absent for a period of four weeks, he attempted
to contact the grievor at the end of the four week period, but
without succesS. Mr. Wright testified that as he believed that
the grievor was in Pakistan solely for the funeral he terminated
the grievor, for failing to report his absences in accordance with
Articles 12.1 and 29.1 of the collective agreement.
The employer did not dispute the grievor's illness, and the
employer's representative submitted that the employer did not
· discharge the grievor for his illness, but solely for failing to
report his absences contrary to the collective agreement. The
employer's representative argued that the employer interpreted the
bereavement leave provisions liberally and Mr'."Wright had
exercised compassion in grantihg such leave an~ had basically
forgiven t'he first four weeks of his absence; however, the grievor
broke his bond of trust' with the employer by not keeping the
employer appraised of his absence.
The .employer's representative also argued that the employer
had just cause to discharge the grievor under article 7.2(c) of
the collective agreement, as under article 7.2(c), ~he. ~rievor had
to give his employer notice and his reason for his absence had to
be acceptable to the employer. As the grievor did not give his
employer notice the employer had no opportunity to discuss whether
the reason for the absence was reasonable.
The union's represenSative submitted that the employer did
not have just cause to discharge the grievor for his inability to
attend work as a result of his illness. He argued that his illness
was an acceptable reason f6r his absence which was substantiated
by his medical certificate and which was never challenged by the
employer.
The union's representative submitted that the grievor did
not breach article 29.1 of the collective agreement as the
employer granted bereavement leave for the first two weeks.
The union's representative submitted that as the medical
certificate was acceptable to the employer, that the Board should
exercise its jurisdiction under section 19(3) of the Crown
Employees Collective Bargaining Act S.O. 1984 c.55 as amended, to
remove the penalty of discharge and reinstate the grievor.
The issues before the Board are: (a) to determine whether
the grievor had breached Articles 29.1 and.12.t of the collective
agreement; and (b) if he hsd done so, whether the penalty of
discharge is excessive in the circumstances, or (c) whether the
employer has just cause to discharge the grievor pursuant to
section 7.2(c) of the collective agreement.
Articles 29.1 and 12.1 state:
BEREAVRMENT LEAVE
29.1
An employee who but for the bereavement would
otherwise have been at work shall be allowed up to 3
consecutive days leave of absence from work on any
normal work day ~bat occurs during the 3 days
immediately following the day of the death of
spouse, mother, father, mother-in-law, father-in-
law, son, daughter, brother, sister, son-in-law,
5
daughter-in-law, sister-in-law, bro~her-£n-!aw,
grandparent, grandchild, ward or guardian, without
loss of regular pay.
LEAVE WITHOUT PAY
12.1
The Employer may grant reasonable leave of
absence without pay and without the accumulation of
credits to employees for personal reasons, having
due regard to the oPerations of the Employer,
provided such request is made in writing, ten (10)
consecutive days prior to the Employer and the
reasons for requesting the leave of absence are
stated. Such leave may be granted up to a maximum
of ten (10) consecutive days at .the absolute and
sole discretion of the. Branch Director.
Leave will not be considered when the employee
has not used his vacation entitlement, unless
planned vacation schedules are approved by the
Employer.
Ten (i0) days notice will not be required where
such leav~ is required for emergency purposes and as
such is acceptable to the Employer.
Upon ~equest, an employee shall be granted a
fUrther~ leave of absence without pay but without
loss of seniority .or other benefits for the purpose
of attending the funeral of the employee's spouse,
mother, father, child, brother or sister:
(a) where the. funeral is held outside of
Ontario but within Cahada - up' to one week;
(b) where the funeral is.held outside of Canada
- up to two weeks.
Article 29.1 is directed to the terms upon which an employee
can receiv~ bereavement leave. Although the letter of discharge
sta~ed that the grievor was discharged for failing to report a
period of absence which included his'first three days of absence,
the first three days, being January 14, 15, and 21 were not in
issue 'and were not a basis for discharge as the employer admitted
that it had provided bereavement leave to the grievor this period.
Under article 29.1, bereavement leave will be extended in
certain circumstances. By the use of the word "shall" as in
"shall be allowed" and "shall be granted," article 29.1 provides a
mandatory extended bereavement leave for a period up to two weeks
when an employee asks for leave to attend a funeral outside of
Canada.
Mr. Wright testified that in the event that an employee is
not able to attend work and is unable to contact his supervisor,
the proper procedure is to contact the Operation Centre. The
records of the Operation Centre indicated that because of the
death that the grievor would be absent for approximately four
weeks. Therefore as the process established by the employer to
notify it for absences was 'f~llowed, and the expected time of
return was indicated in the records, we find that that a request
for leave was made, which creates the obligation on the employer
to exercise its discretion in determining how long the leave
should be extended, which in this case could be up to two weeks.
Mr. Wright did testified that he would have recommended an
additional two week leave, had he known the circumstances.
Article !2.1 is a separate article which deals with leave
without pay and is not tied to bereavement leave. Different
factors are to be consided. While bereavement leave is mandatory
upon request and only the length of the bereavement leave beyond
the three days is discretionary, leave without pay is entirely
within the discretion of the employer. The Branch Director has
the absolute and sole discretion to grant the leave up to ten
consecutive days, which discretion must be exercised reasonably
and within the context of the operation of the business. However,
notice is required unless the leave is for emergency purposes,
which are acceptable to the employer.
Although the grievor did notify his employer that he would
be absent for the funeral, he did not notify the employer that he
would not be able to work as he was ill. Therefore, there was no
notice given, as was required under article 12.1.
The board must then consider whether there was a situation
which was an emergency, which then obviated the notice
requirement.
Although the grievor's absence initially arose from· an
emergency situation, ·there was no evidence that the cont'inuation
of his absence could in'any way be attributed to an emergency.
There was no evidence that his circumstances created a situation
which prevented him from a~vising his employer of his position.
To the contrary, ·he could have ensured that the company was
'notified of his situation, .as the grievor was able to contact his
father and arrange.for his father to contact his wife. He made no
attempt to contact the company.. Therefore, we find that as there
'was no emergency which related to his illness, and to the lengshy
leave, he failed to notify his employer for his absence as
required under article 12.1, and accordingly look a'n unauthorized
leave'.
The next issue is whether there was cause to discharge the
grievor for failing to report his a~sence pursuant to article 7.2.
Article 7.2 states in part:
SENIORITY
7.2A/7 employee shall lose all service and seniority and shall be deemed to have terminated if he:
(a) resigns or retires;
(b) is discharged and not reinstated through' the
Grievance or Arbitration Procedure;
(c) is absent from work for a period of three (3) or
more consecutive working days without notifying
the Employer or without justifiable reason
acceptable to the employer;
(d) ...
Article 7.2(c) sets out two conditions, either of which
triggers deemed termination. We cannot accept the employer's
position that "or" is conjunctive and requires the employee to
give notice and to provide a justifiable reason. If the parties
had intended that both notice and a justifiable reason were
required, "and" would have had to have been used in place of "or".
Furthermore, it would be contradictory to penalize the grievor and
terminate him if the reason was "acceptable" to the employer, for
termination implies that the'reason was not acceptable.
Therefore, as the employer emphasized that it did not
discharge the grievor for si.ckness and did not challenge the
medical certificate, we find that the employer found the grievor's
illness an acceptable reason for his absence, and therefore there
was no basis upon which to discharge the grievor under article
7.2.
The final issue is whether discharge is an excessive penalty
in the circumstances.
The three day bereavement leave was not a basis for the
discharge, as the grievor was entitled to the leave and was in
fact given the leave. In addition, the grievor was entitled tc
have an extended bereavemen~ leave up to a further two weeks, and
it was Mr. Wright's evidence that he would have recommended a
further two weeks.
As the absence from February 5, 1989, which was due to the
illness, was accepted by the employer as it was not challenged,
the sole factor is his failure to report his prognosis at that
time. He clearly failed to do so, even though it was in his power
to do so. He could have written to his employer or had his wife
advise his emploYer before she l'eft the country on February
1989.
It is also inherent in the obligation of an employee to work
for his wages, a necessary and related obligation on the employee
to report w~en he is unable to 'attend work and to keep the
employer advised of his position. The importance of this
obligation is reinforced by the severe penalty of deemed
termination, which .is provided for in .article .7.2, when an
employee fails to report his absence and does not have a
justifiable reason.
The gri~vor was aware of his duty to report' as was seen in
his initial contact with his employer on January 14, 1989.
However, the grievor did not continue to fulfill his obligations.
The failure to keep-an employer notified of absences does
have an impact upon the company. Although Mr. Wright testified
that the employer 'was not affected substantially in its
operations, th~ uncertainty of the length of the grievor's absence
creates difficulties in scheduling ~ther employees.
However, we find that in the circumstances, the penalty of.
discharge was excessive. We find that the employer failed to
consider all the circumstances in proceeding with the discharge.
Although the grievor had been employed for a relatively, short
period of approximately two years, he had never received any
discipline. There was no evidence of absenteeism nor, with the
exception of this incident, any evidence of failing'to report any
other absence nor any evidence to support of finding that he was
an unreliable employee. We thereby exercise our jurisdiction ~under
Section 19(3) of the Crown Employees Collective Bargaining Act,
S.O. 1984, c. 55 as amended, to modify the penalty.
AS the grievor did not meet the prerequisites set out in
article 12.1 he is not enti[led to leave without pay and without
loss Of seniority and benefits. We ~ne~ef~re reinstate t~%e
grievor from March Il, 1989, which would have been his fir~
regularly ~ckeduled day of work after kis return, without ~e$$ of
wages, seniority and benefits from March i1, 1989.
The board wall remain seized in the event tha= there is
any difficulty in the implementation of this decision.
Dated a5 Toronco ~his 30t~ day of October, 1989.
B.A. Kirkwood, Vice-c~airpersoe.
M. Vorster, Member
A. Stapleton, 2.:em~e r