HomeMy WebLinkAbout1989-1198.Feeney.90-03-07 ONTA RIO EMPL 0 Y~'S OE LA COURONNE
CROWN EMPLOYEES DE L 'ONTA RIO
GRIEVANCE COMMISSION DE
SETTLEMENT REGLEMENT
BOARD DES GRIEFS
I80 DUNDAS STREET WEST, TORONTO, ONTARIO. MSG iZ8- SUITE 2100 TELEPHONE/T£L~:PHONE
?aO, RUE DUNDAS OUEST, TO,RONTO, (ONTARIO) MSG IZ~ - BUREAU 2100 (410) 598-0088
1198/89
IN THE MATTER OF AN ARBITRATION
Under
THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT
Before
THE GRIEVANCE SETTLEMENT BOARD
BETWEEN:
OPSEU (Feeney)
Grievor
- and -
The Crown in Right of Ontarfo
(Ministry of Correctional Services).
Employer
BEFORE: D.B. Kates Vice-Chafrperson
J. Carruthers Member
M. O'Toole Member
FOR THE G. Richards
GRIEVOR: Senior Grievance Officer
Ontario Public Service
Employees Union
FOR ~HE B. Little
EMPLOYER: Counsel
Hicks Morley Hamilton
Stewart Storie
Barristers & Solicitors
HEARING: February 8, 1990
Decision
This grievance is framed as an unjust discharge. The
pr~incipa] issue, however, pertains to whether the gr~evor's
res}.gna~[on from the Ministry of Correct|cna] Serv~.ces on May
12, ]989, constituted a permanent severance of the employment
relationship. If not, then, the trade union has characterized
the employer's refusal to re-employ the grie~or as an unjust
termination.
Mr. R. Feeney was an employee of the Ministry of
Correctional Services at its Metro Toronto West Detention Centre
for approximately ten years. In 1986, he was promoted from the
CO2 correctional officer position to a supervisory correctional
officer classification"atL the CO3 level. In 1989 the employer
abolished the COS classification as the wage increases
negotiated during the collective bargaining process for that
classification approximated the wages earned by sergeants in the
OM14 classification. Twenty-nine CO3 supervisors were affected
by the employer's decision.
A number of OM14 supervisory positions were created and
posted for competition. The erstwhile CO3 supervisors were
expected to respond to the posted vacancies and thereby
undertake the examination that was required in order to be
eligible for an invitation to an interview.
Those employees who did not qualify for the OM14 positions
were demoted to the CO2 classification level and were assigned
correctional officer duties consistent with that position.
Their salaries and benefits were "red-circled" at the CO3 level
while performing "first-line" correctional officer duties,
The CO3 supervisors were fo~ obvious reasons upset and
annoyed with the employer for the decision to abolish their
positions. Many employees expressed their general distress
about the unfairness and the disloyalty exhibited in the
underminin~ of their job security.' Indeed, grievances were
submitted challen~ing the employer's actions as being contrary
to the collective agreement.
Mr. Feeney was amongst the CO3 supervisors who felt betrayed
by the employer's decision. The grievor also expressed
disappointment with the employer's dealings with the CO3s in
arranging the competitions for the OM14 positions. Mr. Feeney
suggested that the field of competitors should have been
restricted to solely those employees affected by.the elimination
of the CO3 classification as opposed to permitting employees
generally to apply. Moreover, he expressed the opinion that the
CO3s should be allowed to apply for all OM14 vacancies
irrespective of his or her particular home facility. But, of
most significance, the grievor was~quite angrF and embittered
about the requirement that a written examination be tried as a
condition for an invitation to an interview for the job.
The upSets-and an~er expressed by the CO3s prompted them to
aPran~e a meeting with the employer's representatives. It was
anticipated that the perceived unfairness of the employer's
actions once communicated would result in some accommodation for
the affected employees. It is fair to say, that the employer at
the meeting relied upon its legal prerogatives in managing and
admi. nistrgting the correctional facilities to explain and
justify its actions. As a result l;he CO3s who attended the
mt~eti, ng merely endured further frustration. Indeed, Mr. Feeney
left the meeting before its termination and slammed the door as
he left; the premises.
Mr. Feene¥ failed the written examination and thereby was
not invited to a personal interview for the OM14 position.
Again, the griever expressed his disappointment, anger and
~ frustration with the treatment he was compelled to endure after
ten years of 'loyal and committed service to the employer's work
place.
Approximately five employees affected by the employer's
treatment "booked off'" sick following their abortive effort for
appointment %o the OMI4 vacancies. The griever was included
amongst the employees who absented themselves on account of
their alleged .incapacity. Some of the employees returned to
work after a few days absence. Others took a more protracted
leave of absence for alleged medical reasons. The griever was
cognizant that after six days absence he was required to provide
the employer with a medical certificate to justify the more
protracted absence. The griever indicated that he-had mailed
.the employer two medical certificates dated April 24 and May 10,
1989, signed by his family physician indicating that he was
under, medical care "for work related stress". It is also
relevant to indicate that Mr. Feeney was referred by his family
physician to a pyschiatrist for assistance in dealing with the
problems occasioned by the employer's actions.
During the period between April 12, 1989 and November 7,
1989, the grievor had three appointments with Dr. Hani N.
Sahyoen, MB, CH.B., FRCP(c). Dr. Sahyoen prepared a medical
report dated January 8, 1990, in anticipation of these
arbitration proceedings. His diagnosi, s will be of utmost
relevance in resolving the instant grievance dispute.
Mr. A.D. Phillipson, Superintendent Metro West Detention
Centre, was ultimately responsible for the administration of the
sick leave provisions of the collective agreement ~t the
employer's Metro West Detention Centre. As the absences on
medical leave of the affected employees became more protracted
he directed that more detailed medical information be obtained
to warrant continued payment under the employer's sick·leave
plan. The grievor had contacted his employer by telephone only
to learn that he had been "removed from the payroll". In other
words, the medical certificates provided by the grievor were
inadequate to warrant the grievor's continued absence. Or, as
the grievor indicated, the employer most likely never received
the medical certificates that were sent. That is to say, they
were lost in the mail. It suffices to say, that after the
medical certificate problem was resolved., the grie¥or's sick
leave was reinstated.
It is of some relevance to indicate that owing to the
grievor's medical situation he had applied to Worker's
Compensation Board (WCB) for benefits under that programme. He
did not qualify, for WCB benefits as he was held not to be
disabled for purposes of that programme.
On May, 12, ~989, the'grievor v'i~ited the Metro Toronto West
Detention Centre to deliver the medical certificates that later
resulted in his reinstatement to the payroll. While at the
employer's premises he met with Mr, Ron Brett, Office Manager,
Metro Toronto West Detention Centre. Mr. Feeney asked Mr. Brett
to secure information for him about the employer's Early Exit
Plan. It suffices to say that the Province introduced the Early
Exit Plan as an incentive to persuade c~gil servants with a
minimum of ten years service to'leave the service on payment of
"double" the severance pay entitlements they would otherwise be
entitled to. The severance pay entitlement 'could be taken as a
].ump sum payment or in installments covering the period of the
employee's entitlement~
While Mr. Brett absented himself to obtain the literature
explaining the employee's "options" under the employer's Early
Exit Plan, Mr. Feeney resolved to resign his position. When Mr.
Brett reappeared Mr; Feeney asked for a pen and paper so that he
might write out his formal resignation. At that time Mr. Brett
explained the "options"'available to Mr. Feeney under the Early
Exit Plan. He calculated for his benefit an estimate of "the
lump sum" payment the grievor would be entitled to. Indeed, the
grievor explained that he could no longer put up with shift work
(particularly on week ends) and he described his preference for
spending more time with his family (particularly in order to be
with his son who was engaged in competitive hockey). Mr. Feeney
could not recall making these statements to Mr. Brett al.though
he could not deny either his distaste for shift work or his
son's involvement in hockey. It suf.fices to say, that the
grievor also signed a document indicating his option to select
the lump sum payment under the Early Exit PI. an. The gr~evor's
written resignation signed on May 12, 1989, indicated an
effective date of May 26, 1989.
The grievor attended the employer's premises once again on
May 24, i989, to sign various separation documents and at which
time he received a cheque. He also cleaned out his locker of
his personal belongings and returned his identification badge
and other employer property.
The grievor testified that towards mid-June, 1989, he began
to feel better. At that time he m~t with Mr. Phillipson (and
his OPSEU repr~sentatiYe), to discuss the outstanding grievances
that had emanated from the "unfair" competitionl At that time
the grievor did not express to the employer any regret about his
decision to resign.
On July ?, 1989, the grievor attended along with the
representative of his bargaining agent a settlement'proceeding
at the GSB premises. At that meeting the grievor indicated to
the employer's represe'ntative a desire to have his ~ob back.
The employer's representative indicated that she would have to
consult with her superiors with respect to that request and get
back .to him.
On August 2, i98g, the trade union's coumsel (retained to
represent the grievor's grievances with respect to the
competition) advised Mr. Feeney that he stood little chance of
success with respect to advancing those complaints. Rather,
counsel advised that he submit a grievance (as the employer had
not responded to his request for the rescission of his
resignation) alleging that he had been unfairly or unustly
discharged. Accordingly, on August 2, ].989, counsel prepared a
letter forwarded to the employer indicating that the grievor
wished to reconsider his resignation "as he was under
considerable stress at the time that he tendered his
resignation, and was under doctor's care".
At the same time the trade union representative filed a
grievance dated August 2, 1989, grieving that Mr. Feeney had
been dismissed without just cause.
The parties have joined issue on the principal question
before this Board. The issue rhised is whether Mr. Feeney was
in such mental and emotional disstress at the time of his
resignation on May 12, 1989, and thereafter that he could not
appreciate the consequences of his actions when he tendered his
resignation. Or, more succinctly, can it be clearly held on a
balance of probabilities that Mr. Feeney simply did not know
what he was doing when.he resigned?
It is important to s~ress that the ~rade union is not
relying on "the momentary.aberration" line of arbitral cases to
warrant the rescission of the grievor's decision to quit his
employ.' Succinctly put, those cases say. that where an employee
on. account of some emotional or impulsive ~ct decides to quit
his employment his subsequent actions (presumably after the
circumstances that resulted in the decision to quit have
dissipated) must'be consistent with the expressed intention to
quit. In other words, there .is built into the jurisprudence "a
cooling off period" where the employee who may have taken the
iii considered, irrational step to resign because of some
supervening (often emotional) event .i.s a.l.·]owed the"opportunity
to reconsider and change his mind. However, once the employee
subsequently takes steps to follow through on his stated
intention to resign (as measured by his objective actions) the
employee will. then be foreclosed from changin~ his decision to
quit the employer's employ.
The obvious reason why the trade union has not relied on
this line of arbitral jurisprudence in the ~rievor's situation
is because Mr. Feeney (despite his impulsive act of resignation
on May 12, 1989) took several steps thereafter to confirm his
intention to quit, Indeed, as the employer pointed out the
griever's resignation was prospective in the sense that its
effective date was on May 26, 1989, Mr. Feeney had
approximately two weeks to w~thdraw the resignation without
prejudice to the continuation of the employment relationship. In
other words, the griever's steps in signing the separation
document, cleaning out his locker, cashing the lump sum
severance pay cheque and generally delaying his decision to
reconsider until July 7, 1989', rendered irrelevant to his
situation the "momentary aberration" hypothesis.
Indeed; the trade uni. on in order to succeed must convince
this Board that at all material times the griever's mental and
emotional condition was so impaired that he could not form an
intention to resign because he was incapable of appreciating thc
consequences of the act of quitting. And in Chis regard the
trade union relied principally on the GSB decision in Re OPSEU
(Mantha) and Ministry of Environment deci. sion dated May 26, 1986
fVerity}, In,that case the griever was suspended without pay
following a police investigation for several acts of alleged
Fraud and misappropriation of Min:[stry funds. In due course the
griever p].eaded guilty before g criminal proceeding to one of
the allegations and received a suspended sentence. After he
received his ~suspension the griever submitted his resignation
from the Ministry's employ. He later recanted and sought to
have the resignation nullified~and grieved that the employer's
decision to reject the withdrawal of the resignation as a
constructive discharge.
The Board sustained the grievance holding that the griever
on account of his mental and emotional state did not exhibit the
capacity to form the intention to resign. In short because of
the expert psychiatric evidence submitted~ the Board concluded
that the griever did not know what he was doing. The rationale
in support of the decision's resul-t was adopted from Re OPSEU
(Anonymous) and Ministr~ of Government Services (268/83) where
Mr. McLaren held:
The quit versus discharge case law admits of a rationale
based upon protection of an employee who momentarily acts
against his interest, but is an abhorrent or temporary
aberration for an otherwise rational person. The case law
requires that there be a real subjective intent %0 resign
which is assessed by an objective examination of the conduct
surrounding the circumstances of termination of employment
with close attention being paid to the actions of the
employee involved. This case c~nnot admit of such an
examination because here the employee is i~capable of
forming an intent because of mental incapacity at the time
of resigning and following thereafter. While an objective
examination of the conduct surrounding the circumstances of
the termination might suggest a re~a] subjective intention to
r(~sign, the mental illness of the Grievor makes it
unnecessary to conduct an objective ex~minal;ion of those.
~m_phas i s
The psychiatric opinion that made th~: rat[onaI, e referred tc
above appr()pri, ate in Re Mantha (supca) should be set out in its
entirety:
I continue to havb the opinion that Mr. Mantha., at the time
of his criminal involvement and resignation, was suffering
from a depressive illness of such severity that he was not
fully aware of the implications of his dec[sion to resign
and in fact the impaired ~udgement as well as, self-defeat}.ng
almost self-destructive thinking at that time led him to
behave ~n a manner leading to the formal resignation but
with an underlying sense of 'I just wanted to stop
everything' ....
In this setting, then, of increasing severe depression with
rum[nations.~about other losses by way of death and friends'
illness, Mr. Mantha would be expected to expePience
sufficiently impaired judgement and reasoning ability that
his decision-making process woU].d be interfered with such
that in particular ~ would anticipate that he would not be
fully aware of all the ramifications of his decision to
resign including being able to look at alternative courses
of'action including entering therapy or approaching
superiors in the Ministry etc. As well, there was a general
background flavour of a self~destructive, almost suicidal,
flavour in operation that would further impair his judgement
and reasoning ability. This same interference would of
course interfere with his ability to follow through with any
form of redress through his union with respect to looking at
procedures of grievance.
Against the backdrop of the Mantha decision the trade union
then appemred to a~%empt to brin~ Mr. Feeney's medical situation
within the parameters of the rationale cited in the foregoing
arbitral precedents. The trade union conceded in the above
re~ard that Dr. Sahyoen's des6ription of the grievor's medical
condition at the time of his resiZnati, on and thereafter, was not
as strong (ie., as helpful) as the psychiatric opinion that was
provided in the Mantha case. Mr. Richards nonet;heless in'sisted
that the contents were suffLciently persuasive (if not h.i.s
argument i.n support thereof) to warrant a like result, l'n thi~
respect thi> most favour;xble porti, on ()f Dr. Sahyoen's. report
characterized the grievor's decision to tender his resignation
;is being at best "an impulsive act", He writes as follows'
My diagnostic impuession was that of a man suffering from an
adjustment disorder with depressed mood without suffering
from a major depressi'on and I felt that the potential for
his compl, ete rehabilitation w;ts good taking into account his
good premorbid functioning. An important component of his
personality make up is the tendency for him to be .impulsive
in general throughout his life ~tnd I suspect very strongly
that when 'he submitted his resignation in mid May 1989 it
appears to be in retrospect a w~ry impulsive gesture that he
quic~l~ regretted and came to realize after a while. During
our psychotherapy sessions he did admit to have acted in a
very impulsive way and at times very angry and bitter
manner. Throughout my involvement with Mr. Feeney, he
denied any other psychosocial stressors and stated that he
enjoys a good relationship with his wife of 16 years and his
13-year-old son,
In commenti, ng on the grievor's mental status in the sense of
"cognitive function" Dr. Sahyoen indicates the following:
Me~'t'a~] Status Examination: He presented 'as a rather
subdued, downcast person who did not maintain eye contact
initially and was initially preoccupied in a rather
obsessive manner with his ~ob situation at the expense of
many other things in his life. There was no formal thought
disorder and his reality testin~ was quite intact and [here
was no evidence of perceptual problem or delusional
material. Sis affect was ver'y constricted and depressed and
his mood was depressed but not suicidal in spite of ha~
had occasional suicidal thoughts, }{is cognitive functions
were quite intact.
Although we might readily agree with Dr. Sahyoen's
description of the grievor's act of resignation as being "an
impulsive gesture" we hold that there was nothing contained in
his medical report that would suggest that his cognitive
functioning was so impaired thereafter so as to inhibit Mr,
- 12 -
Feeney from immediately rescinding the decision 'to quit. Indeed
there is nothing contained in Dr. Sahyoen's report that would
suggest ~he depth of mental impairment at the time of Mr. Feeney's
d~cision to resign that would render his.subsequent acts as
irrelevant to establishing an intention to quit. To the contrary,
at all material times the grievor's cognitive functions ~re found to
have remained "intact" In short, there was nothing contained in
the .medical evidence that would warrant a finding of mental
impairment to the extent necessary to justify (as in the Mantha
decision) a finding of an incapacity or disability on the grievor's
part to appreciate the consequences of the decision to resign.
Mr. Richards submitted nonetheless that the employer's decision
to grant the gri'evor slck'leave for stress-related reasons ought to
warrant the finding, in the context of Dr. Sahyoen's report, of
ment'al impairment. In short,, if the grievor was granted medi'cal
leave for being sick and his illness was related to stress then it
is simply axiomatic for this Board to infer some impairment in the
grievor's cognitive functioning at the time of the decision to
resign and thereafter.
The fallacy of the trade union's argument is quite apparent from
the compensmtor¥ relief that was requested on Mr. Feene~'s behalf
.should the Board direct his reinstatement as a result of the
e~ployer's "constructive" discharge. The Board was asked to
reinstate~the grievor to the position he held as of the date of his
resignation as an employee holding sick leave status. Moreover, he
should be deemed to remain on sick leave until November 7, 1989. when
Dr. Sahyoen declared the grievor to have .fully recovered from his
- 13 -
i.].lness. Thereafter, the Board is asked to direct full compensation
for the ~ubsequent period until our decision to reinstate.
It. i~ interesting to observe however that the gri. evor ;~dm.itted
that h~ had sufficiently recovered from his illness by mid-,lune
]989. At that time he was sufficiently recovered f~om any aI. leged
mental impairment when he could have formed the intent[~)n to
reconsider the decision to resign (which he delayed until July 7,
]9~9) and to engage in .other rationale endeavours inclusive of the
advancement of the grievances that related to the competition. In
other words, the obvious conclusion that must be discerned from the
grievor's own situation is that an employee's medical, status
warranting sick leave for stress re}ated reasons cannot be c6nstrued
as coincidental'w~th the 'degree of mental impairment that would
justify the conclusion that that same employee is incapable of
appreciating the consequences of his acts.
We simply note for the record that the employer raised a
timeliness issue with respect to the instant grievance. Because of
our decision rejecting the grievance, it is not necessary to discuss
the implications of the parties' submissions with respect to the
timeliness question.
For all ~he foregoing reasons the grievance is denied.
David H. Kates,, Vice-Chairperson
//~' Carr~ r hu~-~s, Member ~." O'Toole,