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HomeMy WebLinkAbout1989-1848.Rummo.90-12-28 ONTARIO EMPLOY~'S DE LA COURONNE CROWN EMPLOYEE$ DE L 'ONTARIO GRIEVANCE C,OMMISSlON DE SETTLEMENT REGLEMENT BOARD DES GRIEFS 180 DUNDAS STRE="T WEST, SUITE 2'100, TORONTO, ONTARIO. MSG 1Z6 TELE.of-iONE/7'~L ~-PNONE.' (4 I6) 326- ~388 180, RUE DUNDAS OUEST, BUREAU 2;00, TORONTO ~ONTAR;'O). MSG 1Z8 FACSIMILE/T~L,~COPfE ; (4~6) 326-139.6 1848/89 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOBRD BETWEEN CUPE (Ru~mo) Grievor The Crown in Right of Ontario (Metro Toronto Housing Authority) Employer BEFORE: T.H. Wilson Vice-Chairperson E. Seymour Member A. Merritt Member FOR TH~ R. Carnovale GRIEVOR National Representative CUPE, Local 767 (Metro Toronto Housing Authority) POR TH~ T- K. Billings EMPLOYER Counsel .. Miller, Thomson Barristers & Solicitors HEARING: November 19, 1990 PRELIMINARY DECIS~,ON This grievance originally came on before this panel on the 11th of June, 1990. The grievor did not attend at the hearing although Mr. Carnovale was present to speak to the matter. He was unable at that time to determine why the grievor was not in attendance. The Employer moved to have the grievance dismissed on the grounds that the gdevor was not present. However, after some discussion the following consent Order was made by the Board: On consent adjourned sine die on the condition that the Union is to provide a reasonable explanation to the Employer within seven days for the failure of the grievor to attend. The Panel to remain seised in case of dispute. In the absence of a satisfactory explanation the grievance is dismissed. Before the seven days expired the Union provided the employer with the following note from Dr. M. Mufti M.D.dated 11/6/90: "Mr. Rocco Rummo was seen today at this office with flu-like illness." On June 20, 1990 Mr. Carnovale wrote to the Registrar of this Board requesting the scheduling of a hearing for the grievance. On July 11, 1990, Mr. Billings, Counsel for the Employer wrote to the Registrar to the effect: On June 20, 1990 the Union advised the Metropolitan Toronto Housing Authority that it had provided a copy of a medical certificate to the Employer on the afternoon of June 18,1990. The Union has also requested that' new hearing dates be convened by the Board to hear the grievance. Please be advised that it is our position on behalf of the Metropolitan Toronto Housing Authority that the Union has failed to provide a reasonable explanation to our client within seven days'for the failure of the grievor to attend at the hearing on June 11, 1990. Attached for your review is a copy of a note on the letterhead of Dr. M. Mutri stating that Mr. Rocco Rummo was seen today at this office with flu-like illness. It would appear that the note is dated June 11, 1990. This note does not constitute a reasonable explanation for the grievor's failure to attend at the hearing on June 11, 1990 and accordingly, in the absence of a satisfactory explanation, the grievance has been dismissed. It is our opinion that his matter has been completed and the Board is without jurisdiction to schedule the matter for further hearings. Should the Board view this matter otherwise, then we respectfully request a hearing before the Board forthwith to make representations as to the reasonableness of the explanation offered by the grievor within seven days from the date of his failure to attend the original hearing on June 11, 1990. On July 17, 1990, Mr. Carnovale wrote the Board stating that "in view of the Employer's position the Union submits that a dispute as to the reasonableness of the note does exist and therefore a hearing pursuant to the decision of the Panel is in order. "The panel then scheduled a hearing for November 19, 1990 to hear argument and reserved January 21,22 and 23, 1991, for a hearing of the dismissal grievance should the Union be successful on November 19, 1990. The panel received argument on November 19 and reserved its decision. This is the decision for that hearing. The hearing on November 19 dealt with the issue of the note delivered by the Union on June 18 by the Union as to whether it satisfied the requirements of the consent Order of June 11, 1990. No evidence other than the note and the correspondence set out above was adduced in evidence by either side at the hearing. Counsel on behalf of the Employer contended that where a grievor ha§ failed to attend and the grievor is challenging a termination, there is a heavy onus on the grievor to give a reasonable explanation for his failure to attend on the day scheduled for the beginning of the hearing. On that premise, the Ministry basically made two arguments: (1) The gdevor had failed to provide any explanation. All that was received by the Employer was a piece of paper with words written on it. No further evidence is offered in this case by the Union for the grievor's absence. In Counsel's submission, it was not clear and cogent evidence proof that he was in fact seen by a doctor on that day. It would not in itself be admissible. It was incumbent on the Union to produce the doctor to be cross-examined to have him tell what it was that had prevented the grievor from attending on the day of the hearing on June 11, 1990. It is the Union that was trying to convince the Board that there' was a justifiable absence. A piece of paper at the 11th hour on the 7th day delivered at the Employer's office is not a reasonable explanation. (2) Alternatively, the Employer's Counsel argued that if we assume that the note is the evidence of Dr. Multi, there are problems with it. it does not indicate that he could not come to the GSB and it does not say that "it" was severe. Obviously, it did not prevent him from getting to the doctor's office. The note does not state what time of day nor does it state that the symptoms were such that in his professional opinion the grievor could not have attended at the GSB. Indeed, there is no evidence given in the doctor's note addressing the part of the consent Order concemed with the Grievor's failure to attend. The Board is at liberty to take notice that people can have the flu but not be prevented from attending work or carrying on their normal schedule. In other words, there should be something that says that the Grievor could not attend on June 11, 1990. Furthermore, there is a credibility issue further demonstrated by the fact that the Grievor was not present at the November 19th hearing which according to Union Counsel was because ihe had a new job and did not wish to inform his new employer of his grievance against dismissal from his precious position with the Housing Authority. : Mr. Carnovale for the Union submitted that the onus that the consent Order placed on the Union was to provide an explanation for the Grievor's non-attendance at the hearing on June 11, 1990. The note provided states that there is an illness. Dr. Mutri is not a labour relations expert and the note is like hundreds of other such notes presented when employees do not show up for work. In his submission, if the Employer wants to challenge the validity of the note, it should have subpoened Dr. Mutri to the hearing on November 19 and they could have cross-examined him. Indeed, they did not even question by asking for a second opinion from another doctor. In the opinion of the doctor from whom the note was provided the Grievor who saw him on the day of hearing had an illness. It is not an issue whether it was severe or not. So far as the grievor's non-attendance on November '.lc is concerned, he is working which is an effort to mitigate his losses. In reply, Mr. Billings stated that we still had not heard a reasonable explanation for his non-attendance. It is of course clear that the true reason for the type of Order issued at the June 11, 1990, hearing was the concern that the grievor might in fact have abandoned his grievance. 4 When there is an unexplained non-attendahce by a grievor there is an inference that he may have abandoned his grievance or lost interest in it. Accordingly, because without further information at the time, we decided that the only thing that could be done was to give the Grievor a chance to give an explanation for his non-attendance. We did not know at the time why he was not present at the hearing: he could have had an accident. Obviously, if the Grievor had called just prior to the hearing and informed the Union that he was sick in bed, for example, obviously the Board would have granted an adjournment. In that case, if the Employer had thought that it was a bogus excuse, it could then have made some evidentiary challenge at the next hearing. Even with respect to non-attendance at work, under the Collective Agreement sickness must be substantiated by a doctor's certificate if the Employer so requires and in any event, if the absence is of more that three (3) consecutive working days in duration. This Grievor has provided a doctor's certificate of flu-like illness on the day of hearing. In the absence of anything else, we are all agreed on the panel that that is sufficient to entitle the Grievor to have his grievance heard on the merits and not be barred by his failure to attend on June 11. I must note however that this problem could have been Avoided if the Grievor had had the courtesy and presence Of mind to make a telephone call on June 11. Accordingly, the hearing will continue on January 21, 199~ as previously arranged. 28~h December Dated at Toronto this oay of ,199o THOMAS H. WILSON Vice~Chair~,ersoa E. SEYMOUR Member A.S. MERRITT Member