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HomeMy WebLinkAbout1989-0418.Carreau.90-04-03"' ONTARIO EMPLOYES DE ~.A COURONNE ~ ~ CROWN EMPLOYEES DE L'ONTAR~O GRIEVANCE C,OMMISSION DE SETI'LEMENT REGLEMENT BOARD DES GRIEFS 180 DUNDAS STREET WEST, TORONTO, ONTARIO. M5{3 IZ8 - SUITE 2100 TELEPHONE/T~I~'PHONE r~(% RUE OUNOAS OUEST, TORONT(Z (ONTAR;O~ M~IG 1Z8- BUREAU 2100 (4t$)59~.0~88 418/89 IN THE HATTER OF AN*ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD Between: O?SEU (Carreau) Grievor - and - The Crown in Right of Ontario (Ministry of Government Services) Employer Before: B.B. Fisher vice-Chairperson I. Freedman Member D. Montrose Member FOr the Grievor: K. Whitaker Counsel Ryder, Whitaker, wright and Chapman Barristers & Solicitors For the Employe~: M. Furanna Staff Relations Officer Human Resources Secretariat Management Board of Cabinet Bearings: October 5, !989 INTERIM DECISION The employer raised a preliminary objection on the basis that the Grievance Settlement Board has no authority to hear this case as it is alleged that the grievance is simply a request to have the grievor's status "convened" from "unclassified" to The grievance states as follows. Statement of Grievance I grieve that I am a Full Time Classified Manual Worker and the employer is failing to apply all rights and benefits set out in the Collective Agreement to me. Settlement Desired That I be convened to a Classified Full Time Manual Worker fo_rthwith and afforded all rights and benefits set out in the Collective Agreement for Full Time Employees. Solely for the purpose of this preliminary objection, we will assume the facts set out by the Union to be true. The facts are as follows. 1. The grievor was continuously employed from August 17, 1987 to May 31, 1989 as a Utility Worker for the Ministry of Government Services; 2. His job was that of a furniture mover; 3. He worked in a unit of approx/mately 10 employees, 8 of whom were classified: 4. He performed the exact same work as the classified employees; 5. He worked a 40 hour week; 6. In March, 1989 he was made aware that his position would be. made a classified position and that it would be posted in the near future; 7. He believed that the competition was rigged against him; 8. He filed this grievance before the competition was completed and before his contract was not renewed. -2- The Union takes the pOsition that the grievance is worded in broad language and that the essence of the grievor's complaint is that he was denied the financial advantages (primarily benefits) that flow from classified status because he was improperly categorized as "unclassified". Management objects to the jurisdiction of this Board to hear a grievance where the only relief requested is for the person's status to be changed, that is, from unclassified to classified. This is solely the jurisdiction of the employer pursuant to Section 18(1)(a) of the CECBA under the power of"appointment". Management counsel submitted that in the course of the grievance procedure the only relief requested by the grievor was to be "converted". However, it was conceded by Management counsel that her evidence of what took place in the grievance procedure, if we were to hear it, Would not show that the Union expressly waived any. other claim for relief it might have, only that no other relief was requested at that time. The griev°r states quite clearly in the "'S~atement of Grievance" that he considers himself to be a classified employee. It flows therefore that if he is, or should be, a classified employee, then he has been denied the benefit of'certain financial advantages available in the Collective Agreement only to the classified staff. Before we can determine if the employer has breached the agreement, we must inquire into his status to see if he was properly appointed to the unclassified class pursuant to the Public Service Act. This is precisely what this Board has done in the Beresford and Bressette line of cases. The inquiry here is no different than in Beresford (1429/86 Vice Chairperson Mitchnick). Mrs. Beresford claimed she was dismissed. The employer claimed her contract was simply not renewed and thus she was not dismissed. The Board had to first inquire whether or not she had been properly appointed to the unclassified service in order to determine if the employer's argument prevailed. Similarly in Bressette (1682/'87 Vice Chairperson Wilson), the grievor, claimed a violation of Article 4.1 (Job Posting) of the Collective Agreement, a provision not applicable to persons properly holding the status of unclassified employees. The employer claimed the grievor was properly designated an unclassified employee, the Union claimed he was not. The Grievance Settlement Board inquired into the factual basis of the appointment to see whether or not the grievor was properly appointed to the unclassified service to see if the grievors had standing to rely upon the provisions of Article 4.1. In this case the grievor is, in essence, saying that he should have received certain financial benefits not paid to him. The employer is saying that he is not entitled to any additional payments as he was properly appointed tO the unclassified service and paid accordingly. The Union claims he was improperly appointed to the unclassified service. One of the remedies the Union is seeking is presumably an order appointing the grievor to the classified service. They may or may not be entitled to that remedy. The 'Board may find that the grievor was improperly put in the unclassified service but fashion a different remedy. However, before we can determine the merits of the case, we must inquire into whether or not the grievor was properly appointed to the unclassified service. The Beresford line of cases is not restricted to employees claiming relief from dismissals as Bressette was a competition case. It seems to flow logically that a Beresford type inquiry into the appropr/ateness of the appointment to the unclassified service is necessary whenever an employee claims that he has been improperly appointed to the unclassified service and as a result of this he has been denied the benefits of the Collective Agreement. This may well open the inevitable "floodgates" but that is not a proper concern of this Board. It may well be that at the end of the day the remedy requested by the grievor cannot or is not awarded to him, but that does not prevent the Grievance Settlement Board from hearing the case on its merits and fashioning its own award consistent with the applicable statutes. The preliminary objection is therefore dismissed. The parties are to contact the Registrar to set new dates. This panel is to remain seized. Dated this 24th dayof November , 1989. h er, v~ce chairperson to. Montrose, Member ~ '~ .'. O~TAR~O E~PLO¥~$ DE LA ~ . : ' i ' ~''~ GROWN EMP£OYEES DE £'ONTARtO " ~' '- GRIEVANCE C,OMMISSION DE SETTLEMENT REGLEMENT BOARD DES GRIEFS 180 DUNDAS STREET WEST, TORONTO, ONTARIO. MSG ~Z6 - SU~,TE 2100 TELEPHONE/T~L~PHONE laO. RUE DUNDAS OUEST, TORONTO, (ONTARIO,~ M5G 1Z8 - BUREAU 2100 (416) 598-0688 420/89 IN T~{E MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD Between: 0PSEU (DeKrieger) Grievor - and - The Crown in Right of Ontario (Ministry of Bealth) - , Employer Before: B. Fisher - Vice-Chairperson G. Nabi - Member E.~. Orsini - Member APPEARING FOR S. Ursel THE GRIEVOR: Counsel , Cornish & AsSociates Barristers & Solicitors APPEARING FOR M. Farso~ THE EMPLOYER: Counsel Fraser &.Beatty Barristers & Solicitors HEARING: October 31, 1989 January 18, 1990 -2- 5. Later that night, the grievor received a phone call from a fellow dispatcher at Mississauga CACC~'who told him he had a "major problem" because he had called in sick for the night shift but worked the day shift somewhere else. 6. The grievor then called Mr. Dan Lister, the Assistant Manager of Mississauga CACC. Mr. Lister was unable to testify due to medical reasons, however, Mr. Duffin, Manager of Mississauga CACC confirmed that he spoke to Mr. Lister after this event and Mr. Lister told him that he and the grievor had spoke on the night of March 2 and that the grievor had told Mr. Lister that he was suffering from stress. The grievor indicated that in his conversation with Mr. Lister, he told Mr. Lister that he was ,suffering from stress on the job and that he was concerned about working night shift as a dispatcher. They also discussed the problem that existed at that time, which was calling in sick for one night shift and then subsequently working the next shift at a different location. He is not sure if he requested a leave of absence at this time. At this time Mr. Lister put the situation on hold and said they would talk on the Monday or Tuesday (March 6 or 7). 7. At about 23:00 on March 2 the grievor was called by the Supervisor at the Orangeville Ambulance Service who asked him to start work in an hour and a half. The grievor agreed to do so. 8. The grievor worked for the Orangeville Ambulance Service from 0:30 to' 7:00 a.m. March 3. This was the same time he was scheduled to work for Mississauga CACC but did not do so as he reported in sick. During this time he spgke to the Mississauga CACC dispatch in the course of his work on the ambulances. 9. On March 3, he attended at his doctor's office and obtained a doctor's certificate which states: 'Whis patient is suffering from job-related s.tress. He is having physical s ~yTnptoms of stress when he works as an ambulance clispatcher. He wouId benefit from a short period of rest from this job - perhapstwo months." · - 10. Similarly, on March 4, the grievor worked for the Orangevitle Ambulance Service from 0:30 to 7:00, which was the same time that he was scheduled to work for Mississauga CACC. Again, in the course of his job as an Ambulance Attendant, he spoke to Mississauga CACC. -3- 11. On March 7 the grievor had a meeting with Messrs. Lister and Duffin. The grievor was presented with the evidence of tlse conflict existing on March 3 and 4 and adrrfitted the incident. The grievor produced the medical certificate referred to above and indicated that he intended to continue to work for the ambulance services during this two month period. He was told that if he was on disability leave he could not work for an ambulance service. The grievor then said-that then he would request a Leave of Absence without pay. .12. The next day, March 8, the grievor indicated that he would be "withdrawing" the previous ~medical certificate and bringing in a new one to cover his time off. 13. On March i0, 1989, he brought a medical certificate from the same doctor as before. The certificate said as follows: .~ "This patient has not been feelingwell since March 1, 1989. Can return to w6rk March 10, 1989.- dated-March 10, 1989" 14. On April 12 a pre-disciplinary meeting was held. On April 13 the grievor was dismissed. The employer maintains that discharge was the appropriate response for the following reasons: 1. The activity was not a spur of the moment decision, but rather took place over two days. 2. He worked the conflicting shifts after he had be.eh told that there was a "major problem" and after his supervisor told him that matters were "on hold". 3. In essence, by calling in sick when he wasn't, he committed a serious breach of trust. 4. The grievor planned to benefit financially by receiving both sick pay from the government and wages from anot. her employer. 5. It is not credible for the grievor to say that he didn't know it was wrong to report in sick and work somewhere else. 6. The grievor has only short service. -4- 7. ~he grievor did not admit to the wrongdoing until he was confronted with the evidence by Messrs. Duffin and Armstrong on March 7. He could not have told Mr. Lister about the matter on March 2 as the incident took place on March 3 and 4. The employer relies on the following three cases to show that arbitrators have generally upheld discharge in a case of this nature: 1. Koufis 372/82 (Barton) ~ .:':' 2. Themeliopoulous 363/84 (Samuels) :~ ' 3. Re American Motors and UAW21 L.A.C. (2d) 161 (Brown) The Union claims that the penalty is excessive because: 1. The grievor's work record prior to this incident was unblemished save one minor discipline. matter unrelated to absences. 2. The grievor was under alot of stress at the time due to work and due to the fact that he was 'engaged to be married. 3. Although the grievor was too sick to perform the dispatcher job, he was not too ill to do other things, including working as an ambulance attendant, which is admitted by the employer to be less stressful. Therefore, the mere fact that he was engaged in another job while at the same time claiming sick pay from his employer is not in itself a serious matter. The Union relied on the case of Re De ltavilland Aircraft and UAW 2 L.A.C. (3d) 402 (Brown) in which the grievor took an educational course while on sick leave. It was found in that case that given the reason for absence from work (i.e. " breathing problems), it was not inconsistent that he could attend a course, and therefore it was not improper for him to claim sick leave for the same period, r 4. Although the grievor had called in and reported sick on March 1 and 2, he claimed that he was actually intending to apply for a retroactive leave of absence and was not expected to be paid for those days. 5. The grievor voluntarily underwent a programme of stress management through a doctor and psychiatrist, which commenced prior to his dismissal. He now feels that he has learned to deal with his stress so that he could now perform the full functions of an ambulance dispatcher without the necessity of taking time off due to sickness. 6. Mr. Duffin, the grievor's supervisor, indicated that he would have no trouble working with the grievor if he was reinstated. Although counsel for the grievor stated at the opening of the case that the Grievor admitted ~' ;he had been wrong in working for another employer while claiming sick leave, it seemed that in her ,:. ".closing she wished the Board to find that her client was truly disabled from performing the dispatcher job on March 2 and 3 but that he was not so sick as to perform the ambulance attendant job. However, if the grievor was truly disabled from performing the dispatcher's job, then he was right to call in sick and it was right for him to obtain sick leave. The wrongdoing is not earning money while on sick leave, it is calling in sick and claiming pay when in fact you are not sick. In Themeliopoulous, the issue was not that the grievor was working at Canada Post while on sick leave from the LCBO,.rather the relevance of his working at the Canada Post was to show that he could not have been disabled from performing his LCBO job because the Canada Post job was a job of similar' nature. In other words, the Board simply drew an inference that if he was capable of performing a .... second job similar to his regular job, then he was not disabled from performing his regular job. :!i:-~ - - Therefore, we must first consider whether or not the grievor was actually disabled on the days in question. We are led to the conclusion that he was not disabled on the days in question for the following reasons: 1. He admits that he was wrong to call in sick. 2. He claims to have diarrhea and this prevented him from performing dispatch work but not ambulance attendant work. As diarrhea is a common occurrence, experienced by most people at some time in their lives (including Vice-chairpersons, from time to time) this contention of the grievor's is not believable as a person suffering from this ailment would normally choose to engage in an activity that would allow him the maximum access to a toilet within the minimum amount of time. One can easily surmise that this access would be easier in a dispatch office than an ambulance. 3. He not only worked on March 2, 3, and 4 at Orangeville, but he worked an extra day on the 5th of March, which was a scheduled day off from Mississauga CACC. ? ' One would not expect that a person who was sick to the degree that the ...~.. ~ grievor claims he was would work more than he had originally plaimed to. 4. His ability to obtain seemingly contradictory medical reports from the same doctor at the drop of a hat and his failure to call any medical evidence at the hearing leads one to seriously question the credibility of his medical certificates. 5. The stress symptoms which he claimed to have had on the days in question were of a semi-chronic nature at that time. tn other words, he was likely suffering no more discomfort on those days than he Was generally suffering throughout that period. This is similar to the situation in Themeliopoulous where the grievor suffered from a chronic elbow problem and only the grievor could tel1 whether or not he was experiencing sufficient pain so that it was not possible for him to work on a given day. Having concluded therefore, that the grievor was not disabled on the days in question, it is clear that he committed a seriotfs offence in falsely reporting in sick on March 2 and 3, 1989. In Re American Motors, cited above, arbitrator Brown, at page 164, says as follows: "These circumstances are analogous to those cases which deal with theft of~roperty and immoral conduct, which is con. duct recogrki_'zed as being inconsistent uath th.e continuation of an employment relationship. There cannot be a clearer factual case t.han the present matter to establish an. employee's misconduct as being inimical to the contihuation of his employment relationsfiip. The grievor deliberately embarked upon a scheme to obtain comEany paid benefits while 15eing off fro~s.cheduted work, as well as receiving pay from another em. ployer. On ~e fact ot tl~at, he has. by his own actions, severefl 1/is employment relationship. The grievor did not ma}re any admi.ssign of these circumstances to the companyor anyone else until he was faced with the situation by the company, which had through its own investigation learned of the facts. At .mat time it was. easy for him to admit what he had don.e and make restitution anti request consia.erat(on on a compassionate basis, but the other side which must be considered is that it these facts had not been discovered, it must be concluded that th,e grievor intended to retain both his outside wages and ?'" '~ his benefits. Once such a scheme was successful, the likelihood is that it would be i:~ . '~ repeated at some point, which is a serious consideration for the application of a ,;~ . penalty by way of ~teterrence for his employee, as well as for any ot'herswho m/ght " I)e so tempted." Although in the cases presented to this Board by the Employer, a discharge was uniformly told to be the appropriate response, there are important differences with our case. In Koufis, the grievor falsified four different medical certificates, over a number of months. In our case although there was two days in question, it really is only one incident. Moreover, Mr. Koufis had a dismal discipline record, while Mr. DeKreiger has a very good record. Also, Mr. Koufis claimed that his actions were due to stress but subsequent to his dismissal he took no acii0ns to help him deal with this problem. In our case the grievor took positive steps to solve, his stress problem even before the dismissal, and has continued to do so. --":". In Themeliopoulos, the grievor's creditability was astonishingly poor, in fact at one point he admits to committing perjury in a previous heating. Again, the grievor's discipl!ne record was sprinkled with previous offenses, some related to unauthorized absences. In Re American Motors, the offence took place over a continuous period of three weeks, as opposed to 2 days in this case, The Board is left with the impression and the hope that the grievor has learned his lesson and that given the right conditions of reinstatement, he could prove himself to be a trustworthy and valuable employee for the Ministry. The Board, however, feels strongly that the major cause of the situation was stress and that the grievor's attempt to balance two jobs contributed to that stress. -8- Therefore, the terms of such reinstatement should take this account. The Board therefore orders as follows: 1. The penalty of discharge is to be substituted for a suspension until reinstatement without compensation. 2. The grievor is to be reinstated only once he has provided his employer with a proper medical report from his psychiatrist confirming that he is able to resume his duties as an ambulance dispatcher. The psychiatric report should make specific reference to the fact that the grievor is able to cope with the various shifts inherent in the position. The cost of obtaining this report shall be the grievor's responsibility. 3. The grievor is to refrain from having any other paid employment for a period of six months from his date of reinstatement. 4. The grievor is to achieve and maintain an acceptable level of · attendance in accordance w/th the applicable average attendance of other dispatchers at Mississauga CACC. If he fails to achieve and maintain such a level and if his absences are due to stress- related illnesses, then he can be dismissed. This condition is to remain in effect for a period of twelve months following his reinstatement. The Employer is to advise the grievor of this acceptable level within thirty days of his reinstatement. 5. This Board will remain seized of all matters arising from the implementation of this award. -9- DATED at Toronto this 3 day of Apri 1, 1990. ~~iiSHER - Vice-Chairperson t G. Nabi - Member ~~'- Member