Loading...
HomeMy WebLinkAbout1991-2669.Adamson.93-10-15 · . ONTARIO EMPLOYES DE LA COURONNE CROWN EMPLOYEES DE L'ONTARIO GRIEVANCE C,OMMISSION DE ~ SEITLEMENT REGLEMENT BOARD DES GRIEFS ?80 OUNOAS STREET WEST. SUITE 2100, TORONTO, ONTARfO. MSG ~Z8 TELEI~HONE/T~LEPI~tONE: (4 16) 226- 180, RUE OUNDA$ OUEST, BUREAU 2100, ·TORONTO (ONTARIO)· M5G IZ8 FACSI;,,!ILEIT~L~COPiE : [416) 226-1,~ 2669/91 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN OPSEU (Adamson) Grievor - and - The Crown in Right of Ontario. (Ministry of Correctional Services) Employer BEFORE: O, Gray Vice-Chairperson E, Seymour Member M, O'Toole Member FOR THE M. McFadden UNION Counsel Koskie & Minsky Barristers & Solicitors POR THE A. Pruchnicki EMPLOYER Grievance officer · Ministry of Correctional Services HEARING May 6, 1993 AWARD The grievor has been a full-time corrections officer at the MaplehurSt Correctional Centre since 1980. The management of that institution has an Attendance Review Policy, pursuant to which it takes action if an emPloyee's absences from work are a cause for concern. The form. of action it takes depends on the circ,.~mstances. In assessing whether an employee's absen&es ~rom work are a cause for concern, it starts by comparing the employee's rate of absence with the average-rate of 'absence in the employee's occupationai group for the period in question. An assessment of that sort led to grievor's being interviewed in June 1991. As a result, she grieved. On the grievor's behalf, the union seeks a decl'aration that the employer breaches Article A.1 of the parties' collective agreement when it includes absences caused by "gender specific" illnesses or medical problems in the absence figures to which it has reference when it decides to take the action under its Attendance Review Policy. It also asks that we direct the employer to "correct" the grievor's absenteeism record to omit reference to absences caused by "gender specific" illnesses or medical problems, and to rewrite its Attendance Review Policy to ensure that such absences are ignored. For this purpose, "gender specific" illnesses or medical problems are those .which relate to parts of the body possessed only'by women (or ~only by men). The evidence before us consists of certain agreed facts, together with 'the testimony of Dwight Carroll, who was the Deputy Superintendent of the Maplehurst Correctional Centre at the time this grievance arose. The Policy The Attendance Review Policy in question is described'in a memorandum dated June. 8, 1988 to the staff of the institution from the then Superintendent. The memorandum states that the mandate of the attendance review process is "to assist staff to attend work regularly and to maintain a satisfactory attendance record." It says that the Deputy Superintendent and certain others in management constitute au Attendance Review Committee, which meets on a regular basis to review attendance matters. It 'then .goes on to describe the objectives of the committee and the procedure it "may" follow: The objectives of the Attendance Review Committee are to promote'and encourage satisfactory staff attendance, to identify employees whose absenteeism meets or exceeds institution standards or is a 'cause for concern, to .make appropriate recommendations and to provide assistance to staff and their managers that will help an employee enjoy good attendance. Another important function of the Committee is tq identify staff whose attendance is exceptional and ensure proper recognition is given (see Appendix A). PROCEDURE: If the Cowm~ttee identifies an individual whose absences are a cause for concern~ the following procedure may be implemented: STEP 1: The Committee will forward a copy of the Attendance Review Form (AppendS× B) to the employee's supervisor. It will be the responsibility of. the supervisor to meet with the employee regarding the information contained in the form. At the interview, the employee will have the. opportunity to discuss the attendance record. Appropriate space is available on the form~ including the reverse side, for factual comments 'the employee may care to record. The form will then be returned to the Attendance Review Committee for their information at the next meeting. Although this process is not disciplinary, Article 52.13 of the Collective. · Agreement requires that the' employee be given reasonable notice of the interview and of the right to have union representation at the interview, and the employee either has union representation or declines it in writing prior to the interview. STEP 2: ~, at a subsequent Committee meeting, the employee's attendance has not significantly improved, information will again be communicated to the supervisor. The supervisor will interview the employee to determine whether there are ongoing medical or other problems which may be affecting the employee's ability to attend work regularly. The employee will be provided With a letter at this meeting (Appendix C) outlining the specifics of the attendance record and that attendance will continue to be monitored. Again, this process is not disciplinary but, as in Step 1, Article 52.13 must be applied. STEP 3: In the event that an employee's absenteeism problems continue or no significant improvement is noted, the employee will be interviewed by the Committee at their next meeting. STEP 4: As a result of that interview, and based upon the Committee's recom- mendation(s), the Superintendent or his designate may conduct a further interview with the employee. Depending upon the circumstances of each individual situation, and with particular reference to the staff member's previous history of absenteeism, the following courses of action will be considered at this stage: 1) discussion with the employee followed.by a further review by the Attendance Review Committee with a letter to file, coPY to the employee, confirming the disc"as, sion, 2) referral on a voluntary basis to Employee Advisory Services, Ministry of Government Services or other agreed upon employee assistance agency where outside intervention is deemed appropriate, 3) requh-ement to produce a medical certificate for each absence in accordance with Article 52.10 of the Collective Agreement should abuse of sick lea;~e be suspected, 4) scheduling of a medical examination with a mutually acceptable. physician to .determine the employee's ability to fulfil all position responsibilities and to obtain a prognosis regarding the employee's ability to attend work regularly in the future, 5) demotion or reassignment for health reasons, 6) mandatory referral to an outside treatment agency or resource if necessary. '7) schedule a' meeting with a regional personnel representative, supervisor and/or an insurance company counsellor to discuss disability benefits as appropriate, or · 8) a final warning letter regarding employment termination where chronic absenteeism has existed without improvement or medical prognosis indicates it will not likely improve in the future, even though the absenteeism may be beyond the employee's control. This process is designed in such a manner as to ensure that all attempts at dealing with an employee's attendance have been fully explored, and whatever assistance may be required has been offered or given to the employee. However. maintenance of an acceptable ~ttendance record ~in the final analysis is the res~onsibilitv of each staff member. Unacceptable high absenteeism, innocent or otherwise, may not only adversely effect [sic] an employee, it also places an additional heavy burden on coworkers and inhibits ou~ collective responsibility to provide a safe and secure working and living environment. Our goal, through the attendance review system is to assist staff to successfully maintain good attendance, er~oy good health both on and off the job and to encourage staff to have a positive, responsible and professional approach to their duties and responsibilities. At the time of the events which prompted this grievance, Dwight Carroll was the Deputy Superintendent of the Maplehurst Correctional Centre and Chair of its Attendance Review Committee. He testified that the committee reviews staff attendance every four months. The committee is given a~tendance statistics. These statistics indicate the average absence rate of each occupational group. Short and long term absences are dealt with separately: absences of more than ten day's duration, and absences of any length in respect of which there is a claim for Workers' Compensation or Long Term Disability benefits, are not included in the short term average. If an employee's absences exceed the average, that is ordinarily treatedas cause for Concern. The committee will initiate an "intervention" in those circumstances, unless it already has information about the absences which satisfies it that no intervention is necessary. This information may come from the employee's immediate supervisor, who will be present at a cor~mittee meeting when it reviews the employees he or she supervises. It may also be information given to the Deputy. Superintendent or some other member of the committee before it meets, either by the employee directly or by some other member of management to whom the employee has spoken. If the state of the information before it prompts the committee to "intervene", the intervention may take the form of a "step 1" meeting, a "step 2" meeting, a "step 3" meeting, or a "letter of concern." If there have been no previous interventions, the intervention would be at step 1. If there has been a recent intervention at step i or step 2, then the intervention may be at step 2 or 3, respectively. However, if the employee has exceeded the group average, but not significantly enough.to warrant moving him or her to another step, then the committee may simply give the employee a "letter of concern." Such a letter notes that the employee has exceeded the average, that the committee has a continuing concern about the employee's attendance and that 'it will continue to monitor his or her attendance. Mr. Carroll testified that at step 3 meetings the committee frequently is given and acc. epts the employee's assurance that attendance will improve because the cause for past absences no longer exists or is being remedied. As a result, step 3 meetings often do not result in any recommenda- tion of the sort contemplated by the preamble to "s,tep 4" in the written description of the policy. ~ As described in the memorandum, the policy contemplates intervention at step 2 or 3 if there has not been "significant improvement" in attendance since an intervention at the previous step. Mr. Carroll testified that an employee's attendance may be regarded as "improved" if his or her rate of absence.is reduced even if it still exceeds the average for his/her occupational group. The policy doe's not prescribe the step at which the committee should {ntervene out of concern about absences in the current review period when a period or periods of satisfactory attendance separate the current period from any previous interventions. We took it from Mr. Carroll's testimony that in that event the committee would intervene at whatever step or in whatever way it thought appropriate in the circumstances. In an appropriate case, intervention might be at a "lower" step than the one at which, the committee last intervened. The Grievor's Experience It is common ground that the grievor was asked to attend a "Step 3" meeting with the Attendance Review Committee on June 20, 1991, and thereafter received this letter from Mr. Carroll: Reference: Attendance Review Step 3 Senior Assistant Superintendent, Mr. J. Robertson, Office Manager, and the writer. Your attendance record was reviewed with you and the following information was disclosed: -1986 You were absent 6 credits on 4 occasions. - 1987 " " " 9 credits on 4 occasions. - 1988 " " " 8.75 credits on 5 occasions. - 1989 " " " 12.63 credits on 7 occasions. - 1990 " .... 12.75 credits on 5 occasions. - 1991~Ja~ i through April 30 20.28 credits on 3 occasions. On November 27, 1989, you were interviewed by a supervisor pursuant to Step 1 of the attendance review process. The discussion addressed your absences due to illness during the period from July 1, 1989 through September 30, 1989 when you were absent for 5. i3 credits on 3 occasions. On Jane 3, 1990, you were again seen by your supervisor pursuant to Step 2 of the attendance review process. Concerns were expressed in respect to your absences due to illness during the period January 1, 1990 through April 30, 1990 when you were absent for 6 credits on 3 occasions. On February 5, 1991, you were sent a letter of concern from Mr. D. Carroll, chairperson of the Attendance Review Committee, as you had been absent for 5.50 credits on 1 occasion due to illness during the period September 1, 1990 t~n~ough December 31, 1990. During our meeting you advised the committee that you had attended to your doctor on each absence and had provided doctor's notes. You indicated that you had been ill and the problem was of a personal nature. You indicated that you would be willing to share the information but the committee stated that would not be necessary. You indicated that you did not expect the problem to be ongoing. It was explained to you that the Attendance Review Committee was not questioning the · legitimacy of your absences. The concern is with-the number of days you continue to be absent from work. For the period from January 1, 1991 through April 30, 1991, you used 20.28 credits on 3 occasions which greatly exceeds the average for your occupationa! group for that period which was 2.42 credits. You indicated that you were not happy about your beihg at Step 3 of the attendance re;~iew process. You felt that since all of your absences were legitimate and that you had visited a doctor on each occasion, you should be reduced to, in your words, "zero~. You were advised that the legitimacy of your absences was not ii~ ques~ion~ The stages of the attondance review which you have gone through will remain part of your permanent attendance record. If you achieve and maintain a level of ~attendance at or below the average for your occupational group, the Attendance Review Committee will initiate no further intervention other than to commend you should you achieve perfect attendance. The committee, after considering your comments at the Step 3 interview, have decided no.t to proceed with any intervention other than to advise you that, since no ongoin~ problem has been identified, it is expected that you will achieve and maintain a satisfactory level of attendance at or below the average for your occupational group. Although your attendance continues to be a concern to the Attendance Review Committee, the committee will not recommend any further action at this time. I would like to thank you for the candid approach you took at the meeting. Please be advised that your attendance will continue to be monitored in accordance with the institutional attendance review process. Should you experience any personal or medical difficulties, we are prepared to assist you wherever possible. The parties have agreed Upon and described to us the reasons for the grievor's absences on the following dates: OctOber 3, 1988 (12 hr. / 1.5 credits), March 26 (10 hr. / 1.25 credits) . and April 11 (12 hr. /1.5 credits), 1990, and March 18 (12 hr. / 1.5 Credits), March 23 (12 hr. / 1-.5 credits),. March 24 (12 hr. / 1~5 credits) and March 27 to April 29 (7 x 12 hr. / 10.5 credits + 3 x 10 hr. / 3.75 credits), 1991. We have been asked not to refer to the specific reasons for those absences in this award, beyond observing that they are gender specific in the sense described at the beginning of this award. Mr. Carroll's testimony reflected the contents of his letter to the grievor: He said that the grievor was asked to meet with the committee because it was concerned about her continuing and increased use of credits~ At the beginning of the meeting he told her that the committee was not concerned about the legitimacy of her absences, but about the number of absences and about whether the employer could assist her in achieving a more satisfactory level. The grievor and her union representative took the position that'she should not be at step 3. The grievor expressed concern that she felt compellgd to reveal the nature of her illnesses. She did not want to do that. There was a lot of discussion about her not wanting to reveal the nature of her'illnesses. She said she was willing to do so if she was guaranteed confidentiality. She stated that her problem was behind her, and that she expected her attendance to improve. Mr. Carroll testified that the grievor seemed genuinely Upset and embarrassed, and evidently felt' threatened by the meeting. He said he concluded that the information about the illness was "personal", and twice asked l~er not to share it with the committee. The committee accepted her statement that her problem was behind her without knowing what that problem was or even that it was gender specific. Mr. Carroll also testified that if the information later disclosed about the grievor's absences had been available in advance of the attendance review meeting at which the. committee decided to intervene with her at step 3, he would have accepted · both her explanation and her assertion that there was going to be an improvement, and it would have been his recommendation to the committee that they not hold a step 3 meeting or otherwise intervene with her at all. Mr. Carroll's testimony revealed that those in attendance for management at · the meeting of June 20, 1991 were all men. The grievor's immediate supervisor ~was a man. In answer to questions from a member of the Board, Mr. Carroll stated that there were female members of management to' whom an employee could speak privately about attendance matters. He said that a female member of management to whom an employee had Spoken ·could make members of the Attendance 'Review Committee aware of circumstances of the employee which might make it unnecessary to take formal steps or hold meetings with respect to her absences. Although this had occurred from time to time, that option had not been publicized. Argument The union argues that an employee's having to go to a meeting with the committee, being told that his or her' attendance is being or will be monitored in ways not applicable to others and being moved, a step closer to "step 4, and its possible consequences are ail adverse effects or burdens on the employee. When absences due to gender specific causes are counted in determining whether to impose these effects or burdens, women suffer a burden not imposed on other.employees. That, it submits, ~onstitutes discrimination by reason of sex, contrary to Article A.1 of the parties' agreement. That article provides that A.I.1 There shall be no discrimination practised by reason of race, ancestry, place of origin, colour, 8thnic origin, citizenship, creed, sex, sexual orientation, age, marital status, family status, or handicap, as def'med in section 10(1) of the Ontario Hunmn Rights Code (OHRC).. Counsel for the union cited Brooks v. Canada Safeway Ltd~ (1989), 59 D.L.R. (4th) 321 (S.C.C.) in support of the proposition that discrimination by reason of conditions unique to women is discrimination by reason of sex. He submitted that it' is unnecessary for the union to prove that the employer intended its attendance policy to have a discriminatory effect: Re Ontario Human Rights Commission et aL and. Simpson Sear~s Ltd. (1985), 23 D.L.R. (4th) 321 (S.C.C.). Union counsel referred to 'Re The Crown In Right of Ontario (Ministry of Government Services) and Ontario Public · Service Employees Union (KimmeI/Le~D (1991), 21 L.A.C. (4th) 129 (Kaplan), in which another panel of this Board found that a denial of special leave with pay sought under Article 55.1 in 'order to observe :Hebrew High Holidays constituted adverse effect discrimination contrary to Article A.1 when the denial was based on a policy or rule that such leave is not "normally". granted for religious purposes. Union counsel also referred to Re Glengarry lndustries/Chromalox and United Steelworkers, Local 6976 (1989), 3 L.A.C. (4'th) 326 (Hinnegan), Which held that effect should not be given to a provision for automatic termination after 6 months' absence due to sickness or accident when, the grievor's absence was due to a compensable injury, because to do so would deprive the injured worker of access to arbitral review of just cause for discharge and, thus, discriminate on the basis of disability contrary to the Ontario · Human'Rights Code. The employer's representative argued that the grievor did not suffer discrimina- tion in the application of the Attendance Review PoliCy. She submitted that the policy is not designed to single out particular groups, but to provide the employer with flexibility in dealing with a diverse work force. If the Board were to grant the relief requested, she said, that would single out a particular group and fetter the employer's flexibility. She noted that the policy was concerned with communication. There would not have been a step 3 meeting if the grievor had taken other means open to her to advise management of her circumstances. The employer's representative argued that the grievor was seeking to be treated differently on the basis of her gender, the ~very thing the Supreme Court in Brooks said should not be done. She cited Re Toronto Star Newspapers Ltd. and Southern Ontario Newspaper Guild (1990), 12 L.A.C. (4th) 273 (Brent), which held that a requirement to work rotating shifts did not amount to adverse effect discrimination on the grounds of either "sex" or "parental status'' merely because the employee to whom it was applied 'was a female parent, in the absence 'of evidence that as a female parent she had special needs which required -accommodation. Decision We are not satisfied that the employer's intervening with her at step 3 of the attendance review process violated article A.i or imposed on her the burdens alleged by the union. The union alleges as a burden that the grievor was told that her attendance is being or will be monitored in ways not applicable to others. There is no evidence to support this, The letter quoted earlier told her that "your attendance will continue to be monitored in accordance with 'the institutional attendance review process." The process referred to is the process applicable to every employee, including those with a perfect attendance record. It is the process to which she would have been subject had her absences due to gender specific causes been ignored, as the union says article A.1 requires. The union also alleges that the committee's decision to hold the step 3 meeting imposed a burden On the grievor by increasing her exposure to the actions described under step 4 of the policy.. One of the implicit premises of this arg~ment is that the actions described under step 4 o~f the attendance review policy can be imposed only in the circumstances contemplated by the policy -- that is, when the Superintendent receives a recommendation arising out of a step 3 meeting. Even if that premise is true, the argument fails. If the Superintendent must have a recommendation from a step 3 meeting before he or she can take any of the actions described under step 4, then someone who (like the grievor) has been through a step 3 meeting from which no recommendation arose is no more exposed than someone who has been through a step 2 meeting (as the grievor had been before the committee took the action complained of), because in both cases (if the premise is correct) there would have to be a further step 3 meeting before there could be a recommendation to trigger action at step 4. We should add that we do not think the absence of a recommendation arising' Out of a step 3 meeting of the Attendance Review Committee would prevent the Superintendent from taking any of the'actions listed under step 4, if such action was otherwise warranted in the circumstances. The 'policy does not say that when immediate action would otherwise be warranted, such action wilt be delayed until the committee has held enough meetings to formally process the employee through the first three steps described in the policy. It surely.was not intended, for example, that the Superintendent (having been suitably designated by the Deputy Minister under article 52.10) could not require a medical certificate from an employee suspected of abusing sick leave until the employee's absenteeism had been a matter of concern for three of the commi~tee'~ review periods. Conversely, if an employee's circ~_~mstances (including what' may have been said by or to the employee at attendance review meetings) do not otherwise justify any of the actions listed under step 4, then the mere fact that the employee has attended a step 3 meeting can hardly change that. In the grievor's case, the employer~has said that it would not have invited her to a step 3 meeting if it had known what it now knows. In those circumstances, the fact that the meeting occurred chrmot be of any future consequence, except to show that the grievor was made aware of the employer's general concern about attendance. There is no evidence and no suggestion that the empioyer knew that any of the grievor's 1991 absences was due to gender specific causes when it took those absences into account in deciding to hold the step 3 meeting. Indeed, there is no suggestion that it knew that at the end of the meeting, nor at the time the post-meeting lette~ was sent. Ina regime governed by the declaration sought by the union, the onus would surely have been on the grievor to identify any absences she claimed were due to gender specific causes, and provide any needed substantiation of those'claims, well before the committee met to consider the period during which those absences occurred - that is, before she knew what action, if any, the committee would take. It seems ironic that in such a regime it would have been necessary for the grievor to do the very thing she was anxious not to do (and was not required to do) at her meeting with the committee, and to do it at a much earlier stage. In any event, since the grievor had not told management the cause of the absences before it took the action complained of, the employer could not be faulted for acting as it did even if the union. is right that the employer is obliged t~ ignore absences due to gender specific causes. Like the other possible interventions short of step 4, a step 3 meeting is a non- disciplinary interview in which the employer has the opportunity to inform the employee of its concerns and the basis.for them, and the employee has the opportunity to explain the circumstances which gave rise to the employer's concern. This sort of communication is pertinent both to the exercise of the employer's rights and to the discharge of its responsibilities in matters involving absenteeism and its possible consequences for the employee. If having to communicate with management about his or her absences is a burden for an employee, it is not a burden which v¢ould be alleviated by the remedy sought by the union. If the empIoyer were obliged to ignore absence~ due to gender specific causes, it would have to know which absences those were. It would still have to communicate with employees about their attendances. The union did not argue that there was anything discriminatory about the form of the employer's intervention with the grievor at step 3, beyond what we have already noted. R did not argue ~hat the burden of communicating with management about absences was greater for women whose absences are for gender specific reasons because of either the gender composition of the committee or the employer's failure ~to inform female employees of the option of discussing the reasons for their absences with female members of management as a possible means of avoiding formal attendance review meetings~with the cor, m~ttee or with male supervisors. While we do not have to decide whether those aspects of the employer's conduct amount to a breach of article A.1, and express no opinion on that question, we do hope that the employer will nevertheless give those matters some further consideration. Can it be said that absences due to gender specific causes must be ignored beCause they can never justify any action adverse to the employee's interest? It is generally understood that absences due to causes beyond the control of an employee are not properly the subject of discipline. Subject to the employer's obligation to accommodate an employee's handicap, however, innocent absenteeism may be just. cause for unilateral reassignment or ~ven termination Of employment if the absentee- · ism is excessive and likely to remain so. The effect of the declaration and directions sought by the union would be that action which would be proper as a response to chronic absenteeism caused by other health difficulties would be improper if the same chronic absenteeism were due to gender specific health difficulties. The award in Re Glengarry Industries/Chromalox and United Steelworkers, Local 6976, supra, did not hold that an employee's absences due to compensable injuries, could, not have adverse consequences. It only held that a clause which authorized termination without cause after 6 months could not deprive an employee of the right to test a termination against a "just cause" standard when her absence was dud t°a Compensable injury, which constitutes a "handicap" for the purpose of the Human Rights Code. At pages 331-2 of the report of his award, arbitrator Hinnegan said this: In interpreting art. 9.07 in the ~ontext of the Human Rights Code, 1981 it must be noted, £rrstly, that the provisions of the Code referred to do not expressly prohibit the termination of an employee absent due to a compensable injury; rather, it d~ctates .that an employee has a right to equal treatment with respect to her employment and may not be treated differently from other employees because of her compensable injury, now included as a handicap under the Code. Thus, the question for determination here is whether the grievor was, in fact, treated differently or unequally because of her handicap. There is no question that the griev°r was treated no differently from other employees absent for six months due to sickness or accident. Similarly, there is little question that she was treated differently from the m~jority, of the employees in the bargaining unit and that difference in treatment was due to her absence which, in turn, was due to her compensable injury. Those other employees are .entitled to the benefit of the standard of "proper cause" for termination, which entitles an employee to test the employer's application of that standard at arbitration, bringing to bear all of the established arbitral principles and policies applicable to innocent absenteeism in general. The grievor, on the other hand, was subject to automatic termination due to her innocent absence as a result of her compensable i~ury. Accordingly, under the automatic termination provision, she does net have the same right as other employees to challenge her termination within the standard of proper cause. In my view, that must be deemed unequal or different treatment from that of the majority of the bargaining unit employees with respect to her employment. In the result, it must be concluded that the Human Rights Code~ 1981 precludes the application of art. 9.07(f) to an employee on workers' compensation benefits. ' In Brooks v. Canada Safeway Ltd., supra, the Supreme Court of Canada found that an employer had discriminated on the basis of sex when its disability benefits plan treated a gender specific health related absence from Work differently from other health related absences from work. There is no evidence and no suggestion in this case that the employer has treated gender specific health related absences from work differently from other health 'related absences from work, either in the application of its' Attendance Review Policy or in any other respect. Indeed, the union's argument is that it ought to treat them differently, that absences due to gender specific health .difficulties must be ignored when absences for other health related reasons need not and would not be ignored. That interpretation of article A.1 can hardly be supported by the Brooks decision. We recognize that in order to treat people equally it is sometimes necessary to treat different people differently, as the Board observed in Kimmel/Leaf, supra, at page 161. The union has not.demonstrated that it is necessary to do so in the manner it suggests. The mere fact that women are susceptible to health problems from which men cannot suffer (and vice versa) does not supPort the conclusion that, by virtue of article A.1, absences due to "gender specific" health problems must be ignored when other health related absences with an identical impact on the employment relationship need not and would not be ignored. For these reasons, this grievance is dismissed. Dated at Toronto this 15.day of oet o b e r, 19 9 3. Owen V. Gray, V E. Seymour, Member M. O'Toole, Member