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HomeMy WebLinkAbout1989-1423.Newans.90-06-08 ONTARIO EMPLOYES DE LA COUFtONNE CROWN £MPLOYEES DE L 'ONTARIO GRIEVANCE C,OMMISSiON DE SEITLEMENT REGLEMENT BOARD DES GRIEFS 180 OUNOAS STREET WEST. SUITE 2'~00, TORONTO, ONTARIO, MS~ TZ8 TE[.EP~ONE/TEL~PHONE: (416j 326-~35E 7aO. RUE'DUNOAS OUEST. BUREAU 2100, TORONTO (ONTARIO). tMSG 1Z8 FAC$1MILE/TEL~CO~.~E ,, [416) 325-12,95 1,t23/89, 1563/89 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN: OPSEU (Newans) Grievor - and - The Crown in Right of Ontario (Ministry of Correctional Services) Employer - and ' BEFORE: S.L. Stewart Vice-Chairperson G. Majesky Member D. Clark Member FOR THE G. Richards GRIEVOR: Senior Grievance Officer Ontario Public Service Employees Union FOR THE M. Galway EMPLOYER: Staff Relations Officer Ministry of Correctional Services HEARING: March 15, 1990 DECISION The grievor, R. Newans, is employed as a Correctional~Officer' 2 at the Rideau Correctional and Treatment Centre. He has been employed by the Ministry of Correctional SerVices since May 29, 1985. There are two grievances before us, one dated October 13, 1989 and one dated November 8, 1989. The October 13, 1989 grievance.states: "I grieve that on September 25, 1989 I was forced to use a sick credit" and the November 8, 1989 grievance states as follows: I grieve violation of Article 52.10 in that I was required to obtain a medical certificate for a partial day absence September 25, 1989 without just cause and in an unfair and arbitrary manner. Article 52.10 of the Collective Agreement provides as follows: After five (5) days' absence caused by sickness, no leave with pay shall be allowed unless a certificate of a legally qualified medical practicioner is for- warded to the Deputy Minister of the ministry, cert- ifying that the employee is unable to attend to his official duties. Notwithstanding this provision, where it is suspected that there may be an abuse of sick leave, the Deputy Minister or his designee may require an employee %o submit a medical certificate for a period of absence of less than five (5) days. Article 52 provides for short term sick leave on an annual basis and as a new calendar year has commenced the issue of whether the grievor was improperly required to take sick leave has become an academic issue. The Union nevertheless requested a declaration that the grievor had been improperly required to take sick leave. The Union also alleged that the Employer had violated 2 Article 18.1 of the Collective Agreement. Article 18.1 provides as follows: 18.1 The Employer shall continue toLmake reasonable provisions for the safety and health of its employees during the hours of their employment. It is agreed that both the Employer and the Union shall co-operate to the fullest extent possible in the prevention of accidents and in the reasonable promotion of safety and health of all employees. It was the position of the Employer that it would be inappropriate for the Board to deal with whether Article 18.1 had been violated as this provision was not the subject of the grievances that were filed and processed through the grievance procedure. The Board reserved its decision on this issue and the matter is addressed below. The grievances arise from events which took place on · September 25, 1989. September 25, 1989 was the first day of "winter dress" in the institution. As a result, correctional officers were required to wear buttoned collars with ties. During the summer months officers are not required to wear ties except for matters such as court appearances. On S~p{ember 22, 1989 Mr. Newans had a cyst lanced in his doctor's office. The cyst was approximately one inch in diameter and was at the base of his left ear. It was covered by a two inch by two inch gauze bandage and Mr. Newans was instructed to change the dressing three times daily and to clean and apply antibiotic cream to the wound. Mr. Newans was scheduled to be 3 off work until September 25, 1989 and he testified that he did not experience any limitations on his activities during his time off work. He wore open collars during this time. Mr. Newans testified that he wore his tie, a "clip on" tie, to work on September 25, 1989. He was scheduled for a twelve hour shift that day, from 7:00 a.m. to 7:00 p.m. Shortly after the beginning of the shift Mr. Newans had a discussion with the Shift I.C., C. Harrison, and he advised Mr. Harrison of the reason for the bandage on his neck. He stated that he advised Mr. Harrison that he did not anticipate any problems carrying out his duties but that if he did he "would let him know". Mr. Newans testified that Mr. Harrison advised him that he would be unable to remove his tie without a medical certificate. Mr. Newans asked him to "double check" and stated that Mr. Harrison returned to see him at approximately 9:15 a.m. At that time Mr. Harrison confirmed that he would be unable to remove the tie without a medical certificate. Mr. Newans testified that at this .time his tie was beginning to cause irritation to his neck. He explained that although his collar was not in contact with the bandage,' the effect of the closed collar and the weight of the tie was that his skin was being stretched', causing irritation to the wound. Mr. Newans testified that he spoke to Mr. Murphy, senior superintendent at the institution, at approximately 9:30 a.m. and that he advised 4 him that the tie was causing irritation to his neck. Mr. Newans stated that Mr. Murphy told him that if Mr. Harrison agreed that he wa.s experiencing a problem he would be able to remove .the tie without medical authorization. According to Mr. Murphy'.s testimony, he was in a hurry to leave the institution to attend a funeral and the extent of his statement to Mr. Newans was to advise him that he should deal with Mr. Ha~rrison about the ma tter . Mr. Newans stated that he then spoke with Mr. Harrison and advised him of his discussion with Mr. Murphy. Mr. Harrison stated that he would not grant him permission to take off the tie. Mr. Newans replied that if he could not take off the tie he was being forced to go home sick. He testified that he explained to Mr. Harrison that his neck was getting progressively worse and that he "could not work like that". He suggested to Mr. Harrison that if he could remove his tie he cOuld continue working and he could bring in a note the next morning or he could provide the note in two days, after a doctor's appointment that had alrea~dy been scheduled. Neither of these proposals was acceptable to Mr. Harrison. Mr. Harrison told Mr. Newans that he could get a note after the shift but that he would have to wear his tie that day. Mr. Newans stated that the discussion 'concluded with Mr. Harrison asking him if he was fit or unfit for duties. Mr. Newans testified that he replied that given the fact that he had to wear the tie he had to declare himself unfit for du.ties. There was no 5 discussion about replacing him for the balance of the shift although Mr. Newans stated that he assumed that he would be replaced. When over an hour had passed and he was not replaced Mr. Newans stated that he went to see Mr. Harrison who was eating lunch. Mr. Newans asked Mr. Harrison about his replacement and Mr. Harrison replied that he had not requested a replacement and that it was not his understanding that Mr. Newans was indicating.. that he wished to go off duty. Mr. Harrison agreed to obtain a replacement for him. Mr. Harrison also asked him what credits he would be using to cover the balance of the shift and advised him that sick leave credits could not be used to attend a doctor's appointment. Mr. Newans stated that he advised Mr. Harrison that he would be using overtime credits. He explained that he made that statement because he did not wish to engage in further discussion in the lunch room where other persons were present. Shortly afterwards, there was a further discussion between Mr. Newans and Mr. Harrison in the shift supervisor's office. At that time there was a discussion as to whether Mr. Newans could use sick leave credits to cover the balance of his shift with Mr. Harrison expressing the opinion that sick leave credits could not be used as he was leaving work to obtain a medical certificate and Mr. Newans expressing the view that it was appropriate for him to use sick leave credits as he was leaving work because of 6 his physical condition. The morning's events were reviewed and Mr. Newans referred to his understanding that he would be replaced. Mr. Newans stated that Mr. Harrison replied that there was "no malice". At some point in this discussion Mr. Harrison advised Mr. Newans that if he allowed him to take off his tie without a medical certificate "he'd have twelve officers at the door with razor burn". Mr. Newans was replaced approximately fifteen minutes after the conclusion of the meeting. Mr. Newans saw his doctor, Dr. Huntley, at about 2:15 p.m. that afternoon. He stated that he told her that he was required to wear a tie at work and that even before she examined him she stated that he could not wear a buttoned, shirt and tie (Mr. Newans stated that she was aware that it was a clip on tie). as it would cause problems with the incision. She examined Mr. Newans and advised him that the incision was reddened and swol~len. Mr. Newans stated that in addition to his neck, which he described as. sore, he felt very upset by this time and advised his doctor of this. Dr. Huntley advised him to take the rest of. the day off work and provided him with a note which indicates that his appointment time was 2:00 p.m. and states as follows: please note Mr. Newans cannot [emphasis in the original] wear a tie for medical reasons for the next seven days as in my medical opinion it will interfere with healing and cause discomfort. Fit to return to duties on 26 Sept 89. Mr. Newans provided the medical certificate to Mr. Harrison the next day and war allowed to work without his tie. Mr. Newans stated that he was contacted by Mr. Harrison on October 4, 1989 and was advised that he needed a doctor's note to cover his absence from work for the balance of the shift on September 25, 1989. Mr. Harrison stated that because he was attending a doctor's appointment there was a question of whether he should be granted sick leave. Mr. Newans stated that he felt that the note that he had provided had addressed his absence on September 25, 1989. Mr. Harrison advised him that he would review the note. He called Mr', Newans again after reviewihg the note and stated that a further note was required. Mr. Newans provided a further note from Dr. Huntley which is dated October 10, 1989 and states as follows: "Please note Mr. Newans was off for medical reasons 25 Sept 1989." Mr. Harrison prepared a written report with respect to the matter shortly after Mr. Newans left work on September 25, 1989. Hi~ evidence was that Mr. Newans advised him at the beginning of the shift that he did not wish to wear his tie because it was "irritating" and showed him the dressing on his neck. He advised Mr. Newans that he would speak to Mr. Murphy about the matter but that he should have brought in a doctor's note if he was unable to wear his tie. Mr. Newans approached him again at approximately 10:05 a.m. in the segregation area of the prison and advised him that he had spoken to Mr. Murphy and again asked permission to remove his tie. Mr. Harrison's report of the conversation states as follows: Mr. Newans advised me that he could not continue to work due to the irritation and Would have to book off 8 sick. I advised Mr. Newans that all that was required was a note from his doctor and he.could remove his tie. He stated again are you going to let me remove it or not. I advised him I was not and explained that when an officer is not able to perform his duties he should provide us with the proper documentation so we can address the prob- lem. I further advised him that by allowing him to remove his tie for an irritation he states he has, then I would have no option but allow others if they complained about razor irritation etc. to remove theirs. Mr. Newans did not agree with this explanation. I again advised him to get a Doctors slip for t~orrow and there would be. no further problems. He seemed bent on continuing with this and I asked him are you telling me you are unable to perform your duties and [he] replied only because of the irritation. I advised him to let me know what he was going to do continue work or leave. He made no response at this time and I left. Mr. Harrison's ~report goes on to refer to the discussion that he had with Mr. Newans in the cafeteria. He states that when Mr. Newans asked him about his replacement he replied that he had not obtained a replacement for him because he "never said [he was] leaving". By and large, the rest of Mr. Harrison's report accords with Mr. Newans' evidence about the matter. With respect to the request for the second medical certificate, Mr. Harrison stated that he made the request of Mr. Newans after a discussion with Mr. Murphy. He stated that he suspected that Mr. Newans was abusing sick leave and the basis for his suspicion was Mr. Newans' statement to him that he wished the time taken off to be allocated to overtime and his subsequent claim for sick leave for the duration of the shift. Mr. Murphy testified that the matter was discussed at a management meeting and also indicated that'Mr. Newans' reference to overtime caused him to suspect that Mr. Newans was abusing sick time. As well, Mr. Harrison stated that he did not observe any indication that Mr. Newans was impaired in carrying ~ut his duties and~referred to the fact that the 'bandage was not in contact with Mr. Newans' shirt collar. As noted at the outset of this decision, there is an issue of whether the Union can characterize the matter as a health a~d safety issue and rely on Article 18.1 of the Collective Agreement. Mr. Richards stated, and it Was not specifically disputed, that the Employer was advised that the Union intended' to rely on Article 18.1 at a pre-hearing settlement meeting. Mr. Murphy testified that at the second stage meeting there was no reference to Article 18.1 and that the matter was not characterized by the Union as a health and safety' issue. Mr. Newans' evidence suggested that Mr. Murphy had two meetings confused but the substance of Mr. Murphy's testimony with 'respect to the matter not being characterized as a health and safety concern in the griev, ance procedure was not specifically disputed. Mr. Richards submitted that the' Union's concerns that in his submission give rise to a violation of Article 18.1 were made known to the Employer. He argued that it would not be appropriate to preclude the resolultion of the question of whether Article 18.1 had been violated on the basis of a technicality. He referred to City of Lethbridge 4 L.A.C. (3d) 289 (England) and the obiter dictu~ of Mr. Justice Brooke in Blouin Drywall Contractors Ltd. and United Brotherhood of , Carpenters & Joiners of America, Local 2486 (1975) 57 D.L.R.(3d) 199 (Ont. C.A.) in support of his position. While the facts that the Union relies on in support of its position that there has been a violation of Article 18.1 of the Collective Agreement are the same as those involving the grievances that were filed, we agree with MS. Galway's submission that an allegation of a breach of Article 18.1 is a substantively different matter. The grievances, that are before us relate to sick leave credits and whether~ a medical certificate was properly requested. A violation of Article 18.1 is neither explicitly or implicitly referred to. As was pointed out in Houghton O771/88 '(Knopf) the Board does not have jurisdiction to amend or alter a grievance. We agree with Mr. Richards that we should not be unduly technical in limiting the scope of a grievance. However, if we were to allow the Union to proceed with its allegation of a violation of Article 18.1 we are convinced that we would be allowing the Union to proceed with a matter which is substantively different from the matters that were grieved and processed through the grievance procedure. Accordingly, the Employer's preliminary objection is upheld. There is little conflict in the evidence that must be addressed to determine the grievances before us. The October 13, 1989 grievance alleges that the Employer improperly required the grievor to use a sick leave credit for the period of his absence from work on September 25, 1989. The essence of the grievance is that the Employer should have allowed the grievor to perform his work without wearing his tie thereby avoiding the necessity of him leaving work. It is our conclusion that a violation of the Collective Agreement as alleged in this grievance has not been established. Clearly, the Employer is entitled to make and enforce reasonable policies relating to dress. The reasonableness of the policy 'relating to winter dress was not specifically challenged by the Union. Because of the Employer's insistance on compliance with this policy in the absence of a medical certificate, Mr. Newans was unable to carry out his duties due to a physical impairment. The medical certificates clearly and unambiguously support the conclusion that he was physically impaired. Accordingly, it is appropriate that the sick leave provisions of the Collective Agreement come into play and that the grievor's absence for the portion of the day on September 25, 1989 be treated as sick leave. For these reasons, this grievance is dismissed. We turn next to the November 8, 1989 grievance which relates to the Employer's request for a medical certificate for the absence on September 25, 1989. Mr. Richards and Ms. Galway were in agreement that, in accordance with the decision of this Board in Ministry of Correctional Services and O.P.S.E.U. (Ralph! 364/80 (Gorsky), the issue to be determined is whether there exists a reasonable basis for the suspicion that Mr. Newans was involved in an abuse of sick leave. After a review of the evidence and the submissions of the representatives of the parties it is our conclusion that the. evidence does not disclose a reasonable basis for such a suspicion. According to the evidence of Mr. Harrison and Mr. Murphy, the basis for the suspicion of abuse was that Mr. Newans had initially advised Mr. Harrison that he wished the time taken off work to be deducted from his overtime credits. When Mr. Newans made this statement however, it was in response to Mr. Harrison's representation to him that the time could not be taken as sick leave because Mr. Newans was attending at a doctor's appointment. As an aside, we would note that Mr. Harrison's representation is not 'entirely accurate. As noted in Ministry of Correctional Services & O.P.~S.E.U. (Union Grievance) 299/84 (Springate), while attendance at a doctor's appointment for a matter such a a routine check up is not properly characterized as sick leave, where a disability makes it difficult or impossible for an employee to continue working and as a result it is necessary for. him to take time off to see a doctor, 'the employee is entitled to sick leave benefits. Even accepting Mr. Harrison's evidence that he did not understand Mr. Newans to be saying that he was unable to continue working if he had to continue to wear the tie prior to the encounter in the lunch room, on his own evidence, Mr. Harrison became~aware of this matter at the time of the lunch room encounter. During the discussion which took place shortly afterwards, Mr. Newans confirmed that the tie was causing irritation to the wound on his neck and that he felt unable to continue working. The medical certificate of September 25, 1989 provided to the Employer confirmed that Mr. Newans was unable to wear the tie fo'r medical reasons'. The certificate explained that the wearing of the tie was the cause of discomfort and interference with the healing process. Moreover, this medical certificate was dated September 25, 1989, indicated that the appointment time was 2:00 p.m. and further indicated that Mr. Newans would be able to return to work the next day. There was no suggestion that Mr. Newans had excessive sick leave, that he had been unco-operative in any way in the past with respect to compliance with the winter dress policy or that he was opposed to the policy itself. Any suspicions that Mr. Harrison or Mr. Murphy held with respect to the legitimacy of Mr. Newans" comp. laint should reasonably have been put to an end when he received the September 25, 1989 note from Dr. Huntley. Dr. Huntley specifically corroborates Mr. Newans' statement that the wearing of the tie caused 'irritation and the only logical inference that can be drawn from her statement that Mr. Newans was fit to return to work the next day is that he had medical authorization to be o~f work until that time. Although Mr. Harrison did not specifically refer to the fact that Mr. Newans had initially indicated that he would be able to work if he could remove the tie as a basis for suspecting that he could have returned to work that day, once again, any reasonable concerns raised by this statement should have been put to rest given Dr. Huntley's indication that the wearing of the tie would irritate his wound. As Mr. Newans had been wearing his tie .for several hours it is not surprising that his condition would have worsened. Considering all of these factors, it is our conclusion that there was no reasonable basis for the Employer to- suspect that Mr. Newans was abusing sick leave and therefore they were not entitled to request that he provide a medical certificate dealing with his absence on September 25, 1989. The particular facts of this case readily distinguish it from the decision of this Board referred to by Ms. Galway, Ministry of Citizenship and Culture & O.P.S.E.U. (Jarvalt) 178/83 (Swan) where the grievor's absence on sick leave coincided with three days for which she had been denied vacation. In this case, any concerns that the Employer' might reasonably have held with respect to the legitimacy of Mr. Newans' complaint should have. been put to rest upon receipt of the September 25, 1989 note from Dr. Huntley for the reasons outlined. Accordingly, as indicated previously, it is our conclusion that a reasonable basis for a suspicion that Mr. Newans was abusing sick leave was not established by the evidence. In the result, the October 13, 1989 grievance relating to the use of a sick leave credit is· dismissed. The November 8, 1989 grievance relating to the request for a medical certificate is allowed. As the medical certificate requested by the Employer was provided, the Union is seeking declaratory relief only. Accordingly, we declare that the request for a medical certificate to justify Mr. Newans' absence from work on September 25, 1989 was in violation of Article 52.10 of the Collective Agreement. Dated at Toronto, this. 8t~ay of June 1990 S. L. Stewart - Vice-Chairperson D, Clark - Member