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HomeMy WebLinkAbout1990-1068.Weekes.91-03-20 f J .:~~;(~i {}, :~':" ~~1: ~I, :' EMPLOYES DE LA COURONNE ,': 'ft>'".;;''''''..'''''"'"':,., ONTARIO "~, ';;,;.,.f ";'J,!;. ..;, \" CROWN EMPLOYUS DEL 'ONTARIO j'"': ~~ ':~.~J;..:\:~t~ \r . .",. GRI;:VANCE COMMISSION DE . 1111 SETTLEMENT REGLEMENT BOARD DES GRIEFS I 180 DUNDAS STREET wEST SUITE 2100 TORONTO, ONTARIO. M5G lZ8 TELEPNONEITELEPHONE (416) 326-1388 I 180, RUE DUNDAS OUe-ST BUREAU 2100 TORONTO (ONTARIO) M5G IZ8 FACSIMILE ITEU!'COPIE {416} 326- 1396 I I 1068/90 I IN THE HATTER OF AN ARBITRATION I I Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN OPSEU (Weekes) Grievor - and - The Crown in Right of Ontario (Ministry of Correctional Services) Employer BEFORE: G Simmons Vice-Chairperson J Carruthers Member A Merritt Member FOR THE A. Ryder GRIEVOR counsel Ryder, Whitaker, Wright & Chapman Barristers & solicitors I FOR THE J. Benedict I EMPLOYER Manager Staff Relations and Compensation Ministry of correctional Services I I HEARING: November 22, 1990 2 Initially, there were two grievances before this Board which were file numbers l067/90 and 1068/90. However, at the commencement of these proceedings the parties agreed to adjourn grievance number 1067/90 to a later date and that this panel would not be seized of it. Accordingly, this decision refers only to grievance number 1068/90. The grievor claims that he was harassed by a supervisor, Mr. Alex Mitchell, and seeks a written apology from Mr. Mitchell; a IS-day compensatory leave; and that management accept the full cost of appealing this grievance. Duringr the course of argument, the Union changed its claim to seeking a declaration that the Collective Agreement was breached in that the grievor was harassed by the grievor's supervisor Mitchell and that this not recur. The perti!"ent facts are not in disput,e On April 2, 1990, the grievor injured his back while when the :swivel chair on which he intended to sit apparently moved thereby causing him to fall 'to the floor. He was driven to the office of his family physici.3.n who, upon seeing him, made out a Workers' Compensation Board report (Exhibit 1) as well as an Accidental Injury report (Exhibit 3). Dr. Chu, the grievorls physician, filled out a form provided by tl:le Employer indicating that it was his opinion that the grievor was not capable of regular or modified work due to this accident He stated on the form that the next appointment for the grievor was scheduled for April 5, 1990. The grie:vor then went home and contacted Sergeant Buhagiai at the Detention Centre and inform~3:d him that he would be off work for a period of time and he would let 3 the employer know as soon as possible when he would be returning On April 18, Sergeant Cressall, the scheduling officer, awakened the grievor when he telephoned him at his home asking the grievor if he could give him some idea when he would be returning to work. The grievor informed sgt Cressall that he did not really know but that he would be seeing Dr Chu in a week's time and would contact the Centre again as soon as he had more information. Shortly thereafter Mr. Alex Mitchell, Senior Assistant Superintendent Services at the Centre telephoned the grievor and informed him that he had to submit a doctor's certificate covering his absence between April 5 and 18 immediately. The grievor was annoyed over this second phone call. He informed Mr. Mitchell that he did not appreciate receiving this telephone call having been awakened previously by sgt. Cressall and now being re-awakehed by this phone call and that he would have Dr Chu forward a medical certificate upon his visit to Dr. Chu's office within the next week. This was not acceptable to Mr. Mitchell. It was Mr. Mitchell's position that the Standing Order No. 1 for t~e Toronto East Detention Centre (Exhibit 9) required a certificate from a legally qualified medical practitioner after five days absence setting out the reasons for the absence. The Standing Order basically reiterated the requirements set out in Article 52.10 of the Collective Agreement. Mr Mitchell was not prepared to wait until the grievor's next visit to his doctor. The conversation on the telephone between the grievor and Mr. MitChell was very short, as stated by Mr Mitchell it was under one ~inute, and there is no doubt that Mr Mitchell -4 was determined that a medical certific:ate had to be produced immediately or the grievor could and would be removed from t.he payroll Following the conversation, Mr MitChell wrote to t.he superintendent of the Centre a memo (Exhibit 10) which states as follows: Employee: T. Weekes W.C.B. Injury date 02/04/90 Doctors Certificate Coverage Ap:t:'il 2-5th April 1990 After conversation with sergeant cressall, I telephoned Mr. Weekes at his home on Wednesday April 18, 1990, at 0950 hours requesting he provide the institution with a doctor1s certificate to cover his absence from work, as per the OPSEU Collective Agreeltlent. Mr. Weekes indicated to me hi;!; would get a certificate when he next visited the doctor, I told Mr Weekes this was not acceptable and that he was aware of what wa.s required as stated in the Collective AgreeItlent. Mr. Weekes said he would not get a doctor's certificate before his next appointment and he did not appreciate my calling ]~im at home, I inf or.med Mr Weekes he could and would be taken off the payroll The grievor admitted that the doctoJr1s statement of April 2 stated that he would be seeing the grie!vor on April 5. It is further agreed that there was no contact bl~tween the grievor and/I:>r his doctor with the Employer between April 5 and April 18. We can understand Mr. Mitchell1s concern that more than five days had transpired between April 5 and April 18 without furthl~r information being transmitted to the Employer over the state of tl1e - 5 grievor's health during that time. It is conceded by the grievor that the telephone conversation between the grievor and Sgt. Cressall did not reveal when the grievor could be expected to return to work Moreover, this conversation would be of no assistance in any event because it was not a statement from a legally qualified medical practitioner Therefore, we can understand Mr. Mitchell's concern both with the Collective Agreement and the standing Order to insist upon a medical certificate being submitted without delay. However, Article 52.10 of the Collective Agreement and the standing order do not state that an employee will be removed from the payroll should he fail to comply. Article 52.10 of the Collective Agreement reads as follows. 52.10 After five (5) days' absence caused by sickness, no leave with pay shall be allowed unless a certificate of a legally qualified medical practitioner is forwarded to the Deputy Minister of the ministry, certifying 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 to submit a medical certificate for a period of absence of less than five (5) days. The standing Order (Exhibit 9) reads 1.2 EMPLOYEE ATTENDANCE Consistent, regular, and punctual attendance is a requirement of all employees and is a condition of employment. 6 All staff are required to report on time for scheduled shifts and scheduled overtime shifts. If a staff member is unable to report for at I scheduled regular or overtime shift he/she must advise their immediate Supervisor or an on- duty Manager at least two (2) hours prior to the start of their shift# J{OTE:- When a staff member b~~comes aware of an inabil i ty to attend work wi thin two hours of the start of a shift, he/she must advise their immediate Supervisor or an on-duty Manager promptly. A staff member must adviSE! their immediate Supervisor or an on-duty Manager of the reason for the absence (e.g. sickness, fclmily problems, car break down, etc ) and the projeGted duration of the absence. If the duration of the absence is unknown, it is the staff member's responsibility to advise their immediate Supervisor or an on-duty Manager of the on-going absence on a daily basis. Article 52.10 of the Collect;ive Agreement includes the followinq After five (5) days' absence caused by sickness, no leave with pay shall be allowed unless a certificate of a legal'ly qualified medical practitioner is forwarded to the Deputy Minister of the Ministry, certifying that the employee is unable to attend his official duties. If a lengthy absence is projected, it is the staff member's responsibility to contact their immediate Supervisor or an on-duty Manager at least once per week to provide an update on his/her status This procedure will only be waived if the staff member provides a written statement: from a medical practitioner clearly defining ttle length of absence and a projected date of return to work I I I I I 7 After an absence of more than one day, it is the staff member's responsibility to advise their immediate Supervisor or an on-duty \ Manager of the date he/she will be returning to work. These rules apply to all absences other than those which are approved in advance of the absence. Employees who report late for work must submit a written report outlining the cause for being late. This report must be handed to the supervisor as soon after the employee's late arrival as possible, but prior to a shift end departure. While we recognize that Article 52.10 stipulates that no leave with pay shall be allowed after five days absence without a certificate of a qualified med,ical practitioner it does not state that a failure to comply will result in having an employee removed from the payroll~ Nor are we able to find such a consequence in statements contained in the Standing Order. In our view, Mr. Mitchell's approach to the situation was probably abrupt. He impressed the Board during his appearance as a witness as being a no-nonsense person and perhaps could be very direct and abrupt in his approach to matters as in the instant situation Nevertheless, the grievor basis his claim on Article 18 1 of 11 the Collective Agreement which reads: The Employer shall continue to make reasonable I provisions for the safety and health of its employees during the hours of their employment. It is ag+eed that both the Employer and the I Union shall co-operate to the fullest extent possible in the prevention of accidents and in I a the reasonable promotion of safety and health of all employees The grievor relies as well on section 29 1 of the Crown Employees Collective Bargaining Act which states: No person who . acting en behalf of the I ~s employer shall participate in OZ:' interfere with the selection, formation or adl1inistration of an employee organization or the representation of employees by such an orqianization, but nothing in this section shall be deemed to deprive the employer or any person acting on behalf of the employer of his freedom to express his views so long as he does not use coercion, intimidation, threats, promises or undue influence. He claims that because of Mr. Mitchell's call he became quite upset and concerned about losing his job. He telephoned his wife at work and they discussed the matter and they came to the conclusion that I Mr. Mitchell was harassing him. In our view, Article 18.1 is not I directed at the situation that is before us. The article is I entitled "Health and Safety and video Display Terminals". What happened in the instant situation was al telephone conversation between a supervisor and the griever and the supervisor being somewhat abrupt which concerned the grievor. The supervisl:lr informed us that he was merely carrying out his obligations I pursuant to the Standing Orders and the l:ollective Agreement and I had no intent to harass or in any other 1"ay affect the grievor IS I I well-being We accept that evidence but can understand the I grievor's concern pecause of the manner in which Mr. Mitchell I communicated with him on April 18. I I i I S 9 The evidence revealed that the grievor returned to light duty work on April 23. He was eventually compensated through the Workers' Compensation Board for the period of time that he was absent from work. This case appears to be an unfortunate situation in which there appears to be a degree of animosity between Mr. Mitchell and Mr Weekes. However, after looking at the entire evidence that was presented before us, we accept Mr. Mitchell's comments that he had no intent to harass the grievor and, accepting that evidence, we are not prepared to issue a declaration that he apologize to the grievor Moreover, during the course of the proceedings the Union relinquished the demand that the Employer pay the costs of this grievance Finally, the qrievor seeks fifteen days with compensable leave. There is no evidence that the grievor's absence from work was prolonged in any way due to what transpired on April 18 and we deny this request. The grievance is therefore dismissed. Dated at Kingston, ontario this 20th day of Ma,rch 1991 C ~ ~ Mr. C. Gordon Simmons vice Chairperson ~ J (' ~. _/J~ J t'{(~!(l''''''l / I / I I ,'~. J~S Carruthers /Kembe ~ 09.1- 5 'n1~ Mr. A. Merritt Member