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HomeMy WebLinkAbout1992-2644.Fernandez.93-07-12 ~. --'"-!i - - ONTARIO EMPLOYES DE LA COURONNE CROWN EMPLOYEES DH 'ONTARIO 1111 GRIEVANCE COMMISSION DE . SETTLEMENT REGLEMENT BOARD DES GRIEFS - 180 DUNDAS STREET WEST SUITE 2100, TORONTO, ONTARIO. MSG rZ8 TELEPHONE ITELEPHONE (416) 326-1388 180 RUE DUNDAS OUEST BUREAU 2100, TORONTO (ONTARIO) M5G lZ8 FACSIMILE ITELECOPIE (416) 326-1396 2644/92 IN THE MATTER OF AN ARBITRATION Under , THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT .~ Before THE GRIEV~CE SETTLEMENT BOARD .. BETWEEN OPSEU (Fernandez) Grievor -- - and - The Crown in Right of Ontario (Ministry of the Attorney General) - Employer BEFORE W Kaplan Vice-Chairperson E Seymour Member M O'Toole Member FOR THE M McFadden GRIEVOR Counsel Koskie & Minsky Barristers & Solicitors FOR THE S Patterson RESPONDENT Counsel Legal Services Branch Management Board of Cabinet HEARING June 11, 1993 - I j - ( I ( I 2 1 I Introduction i This case concerns the employer's Attendance Review Program, and a July j 18, 1992 gnevance filed by Ms Tina Fernandes, which alleges, in effect, that this policy violdtes Article A of the Collective Agreement Insofar as It i is applied to her Th~ grievance proceeded to a heanng before the Board It I \ was not necessary fqr the unIon to call any evidence, but numerous I documents were introduced on consent. These documents establish the ! ., relevant facts and c~ronology of events leading to the grievance being filed I , I On February 27, 199;2, Ms Fernandes received a memorandu.m from Ms Gay Brown, the Deputy D>lrect0r of Administration of the Crown Law Office, I I Civil This letter cqnfirmed an earlier conversation in which the gnevor i was advised that an iAttendance Review Meeting had been scheduled The i date and location of that meeting were set out in the letter, and the grievor i was advised of her rlight to be accompanied by a union representative , \ The Attendance Review Meeting took place on March 10, 1992 On March 13, 1 1992, the grievor w;as sent a memorandum summarizing the discussion which took place It is useful to set OlJt the entire contents of this I document. i I I I This is to: confirm our conversation at a meeting which was held on March 10, 1992, wherein we discussed your I attendanc~ In addition to you and I, Bert Cumberbatch, representing 0 P S E U , was also In attendance I I would like to confirm the pOints raised I adyised that I had conducted a review of the atte;ndancefor the past two years for posi:tions reporting to me and calculated the average number of days staff were absent. ---- -_._-~ \ ( 3 In 1 990, the average number of days taken totaled 11 .9 days In 1991, the average was 139 I advised you that at 41 days ~bsent in 1991 and 27 in 1990, you were well above the Branch average. In addition, on checking the records for 1989, I noted that you had been absent 71 25 days. .- f also confirmed several times during our meeting that I am not questioning the legitimacy of your absences due to illness. ,. _. I explained that poor attendance has several negatIve impacts, as follows - makes it necessary for other secretaries in the Office to do your work as well as their own - adversely affects the lawyers you work for as they are not receiving consistent secretarial services, which may lead to our providing poor service to our clients - makes it necessary to hire replacement secretarial help, which has been especially difficult during the staffing freeze - may impact on your chances for future promotion and can lead to poor reference checks following any interviews you may attend I also explained that satisfactory attendance is the responsibility of all employees and that the goal is to bring your attendance in line with the average attendance of all employees who report to me In order to assist you, , explained that I am willing to assist you as much as I am able ------ ~---- - -- - ------- ( ( 4 You indicated that you would obtam a written prognosis from your physician regarding your capability for future regular attendance and any limitations you may have I believe that this would be helpful in determming how we can assist you and I look forward to receiving this information In the meantime, I will be monitoring your attendance monthly anq will be re-schedulmg another meeting m three months to review your progress .. Please remember, Tina, that I am available to provide assistance whenever I can should you require It. .. The grievor responded to this memorandum with one of her own, dated April 10,1992 The grievor's memorandum stated The 71 25 days that I was absent in 1989 were consecutive days due to illness during pregnancy and a doctor's letter was provided The 27 days of absence in 1990 was 16 consecutive days from May 28th to June 22nd for which a doctor's letter was provided, 1 day on September 14th and 10 consecutive days from November 16th to 30th for which a doctor's letter was provided The 41 days of absence was 1 day on April 8th, 1 day on May 1 st, 28 consecutive days from June 25th to August 2 nd for which a doctor's letter was provided and 11 consecutive days from December 13th to 31 st for which a doctor's letter was also provided (emphasis not ours) Sometime on or after April 20, 1992, the grievor provided the employer with a letter from her physician, as had earlier been requested The letter stated that since the birth of her last two children, the grievor had suffered from endogenous depression Union counsel advised the Board that , ( 5 this type of depression occurs sporadically and -unpredictably It can be treated with drugs, and the grievor attends at her doctor's office when the depression occurs, receives a prescription and returns to work as soon as she is better The doctor's 1etter noted that this condition was unpredictable, and that it might or might not reoccur The letter further stated that "harassment was counter-productive" and suggested, in an afterword, that "William Styron's book on depression" be consulted -- Hy a memorandum dated June 8, 1992, thegrievor was summoned to anoth,.er A ttendance Review Meeting Ms Brown sent the gnevor another memorandum .following this meeting, and this memorandum commented favourably on the fact that $ince the last meeting the grievor had only been absent for one day The memorandum went on to state - ./ Once again, Tina, as I mentioned in our meeting, I will be happy to assist you in whatever way I can Should you wish to avail yourself of the Government's confidential counselling services at any time, please let me know We want to take whatever proactive measures are necessary to assist you in maintaining regular attendance In the meantime, I will be continuing to monitor your attendance and I will schedule another meeting in approximately three months Once again, congratulations on the Improvement In your attendance The grievor responded to this memorandum with one of her own, dated June 23, 1992 She requested that the Attendance Review Program be discontinued and that all references to it and to her attendance be removed from her personnel file And, as already noted, a gnevance was filed. I ~ 6 I A number of documents that date after this grievance were also introduced into eVIdence A letter dated March 1 , 1993, from Ms Sabina Madill, the Financial and Administrative Officer to the grievor, notes that 'smCe the Attendance Review Meeting of June 17, 1992, the grievor has been absent from work on two occasions, missing 32 days. The grievor is asked to request that her doctor review -her job description and physical demands analysis in order to -, see if he can identify any potential triggers for your medical condition which he sees m your current Job duties His report would give us an opportunity to review the job requirements for your position and the requirements of-the Office as a whole to determine what accommodation might be made to assist you and to facilitate your ability to attend work on a regular basis - On April 21, 1993, the grievor was reminded of this request, and on May 10, - '> 1993 her physician, Doctor Frank D'Arcy, wrote the employer as follows Mrs Fernandes' diagnosis is endogenous depression This means that -it comes from within and probably is chemical in nature as opposed to reactive depression, which is triggered by something that happens to you I have reviewed their position, npositlon Specification and Class Allocation - CSC - (OAG)" and do not see anything significant there to the patient's condition I believe this type of depression is likely to disappear for good but I cannot say when Ms. Gay Brown testified on behalf of the employer, and was, in fact, the only witness to give evidence in these proceedings ( \ 7 Ms. Brown has worked in the Ontario Public Service for 26 years, and her assignment at the ~inistry of .the -Attorney General began in November 1 990, when she was appoint~d the Deputy Director of Administration In that capacity, Ms Brown was responsible for all of the admini~trati\le aspects of running the. Civil Section of the Crown Law Office, and as one of her first tasks, she revieweq the attendance records of ,all subordinate employees She testified that some 37 lawyers work In this office, along with numerous secretaries Depending on the workload of a lawyer, a secretary may work for one or a number of lawyers The parties were agreed that the absence of a secretary, for both short and long periods, can be extremely disruptive to the proper functioning of the office. - Ms. Brown testified that one reason why these absences had such a negative impact was because the Ministry was in the midst of a freeze and special permission had to be sought from the Assistant Deputy Attorney General, and a strong case made, in order to obtain permission to hire a temporary employee. In 1991, the grievor took two weeks holiday, during which she~ extended her vacation by an additional week On the Monday that she was to return to work she took three days bereavement leave, then returned to work for one day, and then was off sick for an extended period of time Ms Brown testified that absences of this kind are very difficult to plan for, and that it is the other secretaries who are generally responsible for an employee's work when that employee is away Ms. Brown testified that she was not initially aware of the reasons for the grievor's absence, a:nd only became fully informed when, in April 1992, she received the letter from the grievor's doctor setting out the cause of the grievor's absences With respect to the first Attendance Review Meeting, l ( 8 held on ,March 10, 1992, Ms. Brown reiterated in evidence the mformation found in her subsequent letter to the grievor, and also testified that she made a number of efforts to find out what could be done in the office to accommodate the grievor and in that way assist her in Improvmg, her attendance Ms Brown testified that the grievor told her that there was nothing that could be done As already noted, Ms Brown requested a doctor's letter, and that letter was subsequently provided to her Ms Brown felt that the reference to ". -, " harassment was a reference to her and the efforts she was making to assist the grievor in improving her attendance Ms Brown did not feel that the doctor's letter provided any useful information, and so another Attenda.nce RevIew Meeting was scheduled That meeting was followed by the grievor's grievance, and Ms. Brown then took the position that she would not hold any more meetings, which were to be quarterly, until the grievance had been resolved Ms Brown no longer works at the Ministry of the Attorney General, but before leaving to undertake her new assignment she prepared ) the letter that was sent to the grievor by Sabina MadIll on March 1, 1993 Ms. Brown testified that the purpose of this letter was to learn more about the grievor's illness and to find out what, if anything, could be done to assist and accommodate her at work and in that way improve her attendance In cross-exammation, Ms. Brown agreed that after she received Dr D'Arcy's April 1992 letter she dId not ask the grievor for permission to contact Dr D'Arcy directly to obtain further information about the grievor's condition Nor did Ms. Brown do any independent research into endogenous depression Ms Brown agreed that had a grievance not been filed, she would have held I ~ \ 9 I another Attendance Review Meeting with the grievor in September 1992, and would have continued to hold quarterly meetings th~reafter untIl her attendance improved or some other step was taken Ms .Brown testified that she has never held the grievor responsible for her absences, all that she has sought to do is to learn more about them in an effort to determine whether she could accommodate the grievor In some way and in that way decrease the number of absences from work. .Before turning to argument, a number of additional facts should be noted .. First of all, it was agreed by the parties that while the employer may have received some formal notification about the grievor's illness prior to 1992, when Ms Brown initiated the Attendance Review Program, she was not aware of the reasons for the grievor's absence Second, the employer did not dispute, for the purpose of this case, that the grievor's illness could be considered a handicap as referred to in Article A Third, there was no disagreement between the parties that the grievor's absences were the result of illness Union Argument Union counsel began his submissions by noting that if the grievor's absences due to endogenous depression- were s!Jbtracted from her total absences, then she only would have been absent one day in 1990 and two days in 1991 All of the other absences were directly attributable to her handicap, and in counsel's submission, when they were eliminated from the total figure, the grievor was well below the office average in terms of work days missed due to illness More importantly, in counsel's VIew, had the grievor not been handicapped ( ( I 10 she would not have been singled out and subjected to the employer's A ttendance Review .program Because the gnevor was handicapped, she missed work, and because of this she attracted the employer's attention and was subjected to a process requiring her to attend quarterly meetings, and one involving the stigma associated with this monitonng Counsel also observed that the grievor was put on notice, in Ms Brown's memorandum of March 13, 1992, extracted above, that certain severe consequences could -- result if her attendance did not improve f Counsel argued that these facts established that the gnevor was a victim of adverse impact discrimination In Re Ontario Human Rights Commission et al and Simpsons-Sears Ltd., 1985 23 0 L.R (4th) 321 (SeC), adverse impact discrimination is described and defined - It arises- where an employer for genuine business reasons adopts a rule or standard which is on its face neutral, and which will apply equally to all employees, but which has a discriminatory effect upon a prohibited ground 0," one employee or group of employees In that it imposes, because of some special characteristic of the employee or group, obligations, penalties, or restrictive conditions not imposed on other members of the work force An employment rule honestly made for sound. economic or business reasons, equally applicable to all to whom it is intended to apply, may yet be discriminatory if it affects a person or group of persons differently from others to whom It may apply (at 332) Counsel argued that the employer's Attendance Review Program was an employment rule honestly made for sound economic or business reasons, and was intended to be equally applicable to all employees, but was contrary to Article A of the Collective Agreement because it had an adverse impact on handicapped employees such as the grievor, who was being subjected to the \ i 1 1 \ program solely becaus~ of her handicap. Article A 1 1 of the Cqllec;tive Agreement provides There shall be no discrimination practised by reason of race, ancestry, place of origin, colour, ethnic origin, citizenship, creed, sex, sexual ,orienta.tion, age, marital status, family status, or handicap, as defined in section 1 O( 1) of the Ontario Human Rights Code (OHRC) Counsel pointed out that the Board had, in Re The Crown in right of Ontano (Ministry of Government Services) and Ontario Public. Service Employees Union (Kimmel/Leaf), 21 L.AC (4th) 129 (Kaplan), accepted the proposition that adverse impact discrimination could be established under Article A, and counsel urged the Board to so find in this case - In terms of remedy, counsel argued that the Board should make a declaration that Article A had been violated, and while the employer should be allowed, if it wished, to continue keeping records of the grievor's absences, any absence due to her handicap should not be considered in determining whether to initiate the Attendance Review Program With respect to her Employer Argument Employer counsel began his submissions by pointing out that the Ministry's Attendance Review Program was not disciplinary, and that given management's right to terminate for innocent absenteeism, the employer had the right, and the obligation, to initiate that program and to advise the grievor of the possible consequences if her attendance did not improve , Counsel also argued that the employer had the right to release employees i ( 12 for innocent absenteeism, even if the source of that absenteeism was a handicap Very simply, in counselrs submission, the protection of Article A did not extend to guaranteeing employees their jobs, but required that no employee be discriminated against on a prohibited ground As already noted, the employer never disputed the legitimacy of the grievor's absences, nor did it take issue with the fact that these absences were the result of a handicap within the meanmg, of Article A However, the employer did not accept the proposition that simply because an ,~ employee presented a handicap, the employer was no longer entitled to require reasonable attendance at work, or to insist upon the employee's participation in the Attendance Review Program Cou'nsel argued that once - the employee presented the handicap, the employer's obligation to accommodate arose, and in meeting its obligation, the employer was entitled to initiate the Attendance Review Program. In counsel's view, that program not only assisted the employer in obtaining the information it required to offer an accommodation to the grievor, but it allowed the employer, in pursuit of its legitimate objectives, to monitor the grievor's absences, to keep apprised of the reasons for the absences, and of any changes to those reasons, and to take such steps as it considered appropriate, includmg referring .the gnevor to a mandatory medical or, ultimately, if all efforts failed, releasing her from employment. Counsel noted that the employer cannot exercise its accommodation obligation in a vacuum, and that it was the information gathered in the Attendance Review Program that filled the void and enabled the employer to fulfill its legal obligations Counsel noted that in this case the grievor stated at the first Attendance Review Meeting that nothing could be done, " I 13 (, ,;J given the nature of her illness and the unpredlctablhty associated wIth It While the union was suggestmg that this should end the matter, employer counsel argued that this is where the matter should begin, and he suggested that through the Attenda.nce Review Process the employer might be able to develop accommodation .options suitable to the gnevor's condition, including, for example, designating her a float or assignin9 her to a secretarial pool instead of to particular lawyers. Counsel argued that Attendance ReVIew Meetings provided the perfect opportunity to develop and establish an accommodation program Employer counsel also argy_ed that there was no adverse impact In this case, but even if there was, the grievor bears some burden to participate in the accommodation process, and that required her to participate in the - Attendance. Review Program Assuming In the alternatIve and for the sake of argument that there was some adverse impact on the grievor (and given / that there was no adverse effect, no discipline and no penalty, counsel argued, there could be no adverse impact), counsel suggested that it was so I minimal given the legitimate interests of all the parties at stake in this I I I case so as not to require any remedy In conclusion, counsel requested that the grievance be dismissed Union. Reply In reply, union counsel argued that being subjected to the Attendance Review Program, and being warned that if attenoance did not improve opportunities for promotion could be affected, was not accommodation, it was an adverse impact bec~LJse of handicap Counsel suggested that the Attendance Review Program was not about information gathering and assisting employees, it was about attendance control and the management ~- . \ 14 of problem employees In counsel's view, there was no evidence of employer efforts to accommodate in this case other than subjecting the grievor to the Attendance Review Program Counsel argued that the effect of the Attendance Review Program was to impose conditions and obligations on the grievor simply because of her handicap, and that this adverse impact was not inconsequential or de. mmimus Counsel noted that provisions such as' Article A, and human rights legislation considered more generally, are intended to be remedial, and that programs such as the Attendance Review Program, imposing reporting and other obligations on employees, hot to mention the stigma generally associated with them, did not further these remediaL goals Decision - Having carefully considered the evidence and arguments of the 'parties, we have come to the conclusion that this gnevance must be dismissed In our view, there is no evidence in this case of adverse impact discrimination While it is true enough that the Attendance Review Program has been initiated because of absences due to handicap, there is no evidence establishing that the grievor has been subjected, as a result of her handicap, to discriminatory treatment. The AttendaAce Review Program does not impose on the grievor, because of handicap, some obligation, penalty or restrictive condition not imposed on other members of the workforce Rather the Attendance Review Program IS an administrative process that, as one of its objectives, seeks to ensure that employees absent from work because of disability are offered appropriate accommodations, and are involved in the orocess of developing those accommodations Seen in this context, the Attendance Review / ~ ~ '-1 , \ \ 15 Program is remedial and constructive It is. not discriminatory While in some cases, attendance review programs are initiated in qrder to deal' with employee abuse of sick leave, in other cases, such as this one, the goal of the program is to reduce absences by assisting the employee In improving his or her attendance In the instant case, there is no evidence of any harassment of the grievor; rather the evidence 'establlshes that Ms Brown identified, as part of a general review of all employees attendance records, significant absences on the part of the gnevor There has never .. , been any question in this case of employee abuse Accordingly, Ms Brown initiated the Attendance Review Program in order to work with the grievor in improving her attendance . The evidence further establishes that Ms. Brown attempted to learn the cause of the grievor's absence Clearly, the April 1992 letter from the grievor's physician does not provide significant information about the grievor's absence, or about future prognosis. Even if it did, however, that does not mean that the employer is not entitled to continue to review an employee's absence, whether caused by disability or otherwise The employee's condition might change and, as in this ca~e, the employer may wish to work with the employee and to offer her a workplace accommodation in the hope of improving her attendance \ It may be that the employee's attendance does not improve, or even worsens In that case, the employer may wish to refer the employee to a mandatory medical, or indeed, to take some other steps including release for innocent absenteeism The employer has an accommodation obligation to the grievor, and to its other employees with qisabilities However, that " ?:i .. "-, ,~ t ( 16 accommodation obligation is only to the point of undue hardship, and at some point the employer may legitimately determine that it can no longer accommodate an employee with both a history of excessive absenteeism and an unfavourable future medical prognosis In those circumstances, the non-disciplinary release of that employee will follow The employer must not only work with employees in attendance review programs, but must also inform employees of concerns about attendance, and of the consequences which may result if attendance does not improve .. It should also be noted that the duty to accommodate imposes some reciprocal obligations on employees. Employees must respond reasonably to accommodation offers, and they must work with the employer in attempting to make the offered accommodations work. In the instant case, the - accommodation obligation requires the employee to attend the Attendance Review Meetings, and to provide the employer with relevant information in a timely way We do not find that the grievor was "subjected" to these meetings, nor do we find that participation in them stigmatizes the grievor in any way These meetings should be seen for what they are an attempt by the employer, requiring the cooperation of the employee, to assist the employee in improving his or her attendance so as to meet one of the legitimate expectations of the job' regular attendance at work. Had there been even a hint of harassment in this case we would likely have reached a different result given the provisions of Article A The evidence is all to the opposite effect, and it establishes that the initiation and conduct of these meetings was entirely in good faith And this includes advismg the grievor of the negative impacts of poor attendance, mcluding the possibility that poor attendance will affect her chances at promotion and may influence any reference letters that she receives I , ( c. ~ \ 17 Clearly, the grievor is an experienced and knowledgeable employee Her performance appraisal indicates as much In the performance appraisal introduced in evidence, the grievor received an overall rating of "commendable," and numerous comments on thiS appraisal indicate that she is a highly-regarded employee. rendering valuable service to the people of Onta rio There is not, however, on the evidence and argument pefore us, any Collective Agreement breach Accordingly, and for the- foregOing reasons, the grievance is dismissed DATED at Toronto this 12th day of July, 1993 ~J!l~--- William Kaplan Vice-Chairper~ ~~------ ~ E. Seymour Member ?4LQ~~~ M O'Toole Member