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HomeMy WebLinkAbout1992-3085.Ally.94-12-14 ....-' ~ <: EMPLOYES DE LA COURONNE r. - ONTARIO CROWN EMPLOYEES DE L'ONTARIO 1111 GRIEVANCE COMMISSION DE . SETTLEMENT REGLEMENT BOARD DES GRIEFS 180 DUNDAS STREET WEST SUITE 2100, TORONTO, ONTARIO M5G IZ8 TELEPHONE/TELEPHONE (416) 326-1388 180, RUE DUNDAS OUEST BUREAU 2100 TORONTO (ONTARIO) M5G IZ8 FACSIMILE /TELECOPIE (416) 326-1396 3085/92 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN OPSEU (Ally) Grievor - and - The Crown in Right of ontario (Ministry of Transportation) Employer BEFORE: A Barrett Vice-Chairperson E Seymour Member M Milich Member FOR THE N Roland UNION Counsel Barristers & Solicitors FOR THE A Rae EMPLOYER Counsel winkler Filion & Wakely Barristers & Solicitors HEARING January 19, 1994 April 28, 1994 May 27, 1994 June 2, 1994 July 8, 1994 . J D E CIS ION - t, ,I i I I The grievor was dismissed from employment with the Ministry on October 7 , 1991, for the reasons set out In his discharge letter, as follows "CERTIFIED LETTER AND DELIVERED BY PUROLATOR October 7, 1991 Mr Kamar Ally c/o N Xynnis, Esq Heller & Rubel 111 Richmond Street West Toronto, Ontario M5H 2G4 Dear Mr Ally I I have been advised that you have been sentenced to a jail term of twelve months as a result of your conviction II on the indictable offence of arson ! You profited from your criminal conduct through the Short ! I Term Sickness Plan and LTIP and with the Ministry as the Short Term Sick Plan carrier subsidizing ail your other benefits In accordance with Section 22(3) of the Public Service Act, R S 0 1980, Chapter 418, the Ministry hereby dismisses you from the Public Service effective I immediately , At this time, I should make you aware that you have the I right to grieve this action pursuant to Article 27 8 2 of the Collective Agreement with respect to working conditions and Employee Benefits 1 Pat Jacobsen Deputy Minister" We find as a fact on all of the evidence that on August 24, 1988, the grievor committed arson at a meat store owned by himself and his wife, for which he was later convicted and jailed, and that he sustained severe burns to his hands during the commission of the i i ! j I I II ~. 4 ~ 2 offence The grievor told the employer, the insurance company, the police and his doctors that the burns were caused by the explosion of a car battery when he was giving someone a boost some two days before the arson He remained off work, first of all on short-term sickness benefits, then for two years on long-term income protection through Confederation Life The employer discovered the truth in September, 1991, when somebody read a newspaper report about Mr Ally's arson conviction The employer ordered a transcript of the reasons for decision and reasons for sentencing of the trial judge and learned that Mr Ally had relied at trial on the same exploding car battery explanation for his injuries That explanation was not accepted by the trial judge and Mr Ally was convicted of arson and sentenced to one year in jail We admitted in evidence the transcripts, the Confederation Life medical and other records and the evidence of Mr Barnes, for the employer, as prima facie proof of the fact that Mr Ally obtained his burns in the commission of arson and not some two days earlier by means of an exploding car battery as alleged by Mr Ally in all of his dealings with the employer, the insurance company, his doctors and the police Mr Ally did not testify at our hearing, and we find the employer s evidence to be conclusive of the facts since not rebutted in any respect by Mr Ally At issue is whether or not the employer had just cause to terminate Mr Ally for "profiting from his criminal conduct" The collective agreement provisions governing entitlement to sick t, o. 3 il !~ benefits must be studied carefully to determine if a person is I disentitled to benefits if they arise as a result of criminal conduct It is not disputed by the employer that Mr Ally was in fact seriously injured and unable to work during the full period of time that he collected both short-term and long-term sickness benefits The short-term sickness plan is set out in Article 52 of the collective agreement, the relevant portions of which read as follows "ARTICLE 52 - SHORT TERM SICKNESS PLAN 52 1 An employee who is unable to attend to his duties due to sickness or injury is entitled to leave-of-absence with pay as follows ( i ) with regular salary for the first six (6) working days of absence, (ii) with seventy-five percent (75%) of regular salary for an additional one hundred and twenty-four (124) working days of absence, in each calendar year " The long-term income protection plan 1.S set out in Article 42, the relevant portions of which are reproduced below "ARTICLE 42 - LONG TERM INCOME PROTECTION 42 1 The Employer shall pay eighty-five percent (85%) of the monthly premium of the Long Term Income Protection Plan 42 2 1 (a) The Long Term Income Protection benefit is sixty-six and two-thirds percent (66- 2/3%) of the employee's gross salary at the date of disability, including any II I I II I j ~, 4 . _\ " retroactive salary adj'ustment to which the employee is entitled 42 2 3 Long Term Income Protection benefits commence after a qualification period of six (6) months from the date the employee becomes totally disabled, unless the employee elects to continue to use accumulated attendance credits on a day-to-day basis after the six ( 6 ) month period 42 2 4 Total disability means the continuous inability as the result of illness, mental disorder, or injury of the insured employee to perform the essential duties of his normal occupation during the qualification period, and during the first twenty-four (24) months of the benefit period, and thereafter during the balance of the benefit period, the inability of the employee to perform the essential duties of any gainful occupation for which he is reasonably fitted by education, training or experience 42 3 The Employer will continue to make pension contributions and premium payments for the Dental Plan and for Supplementary Health and Hospital on behalf of the employee, at no cost to the employee, while the employee receives or is qualified to receive L TIP benefits under the plan, unless the employee is supplementing aWe B award 42 5 Long Term Income Protection coverage will terminate at the end of the calendar month in which an employee ceases to be a civil servant If the employee is totally disabled on the date his insurance terminates, he shall continue to be insured for that disability " ) Nowhere in these collective agreement provisions is there a limitation on eligibility for benefits based on an injury being caused by criminal conduct The employer seems to rely upon the rule of public policy that a person is not entitled to benefit . from his own crime As union counsel points out, this is a policy I I 6"r ! 5 ~I which is deployed in insurance cases where, for lnstance, a person tries to collect on a life insurance policy of a person he or she has murdered, or to collect on a fire insurance policy where the insured set the fire himself The issue is Can this rule of public policy be imported into a collective agreement where eligibility for benefits is clearly set out and not restricted by the cause of the injury or illness Article 52 1 makes it clear that "An employee who is unable to attend to his duties due to injury is entitled to leave-of-absence with pay" Some restrictions ensue in Article 52, but they do not have anything to do with the cause of the injury Employer counsel cited case law for the proposition that an employee who is dishonest about his sick leave claims and induces the employer to grant benefits based on false statements made by him or her can be disciplined and/or denied the benefits The problem in this case is that Mr Ally's dishonest explanations about the cause of his injuries do not appear to go to the root of his entitlement He was injured, he was unable to work, and no provision in the collective agreement would seem to disentitle him to benefits because of the causation of the injury The Confederation Life insurance policy which we received in evidence excludes benefits for "A disability caused by lntentional self- inflicted injuries " This provision is not reflected in the collective agreement and one can only speculate about a possible remedy the insurance company may have against Mr Ally Certainly 0 it is not within our mandate to enquire into that issue [, I ~-~ ..-; 1 6 .' ~ In a recent Grievance Settlement Board decision (Phillips, GSB #2459/92 (Stewart)) a differently-constituted panel of this Board was required to determine whether an employee who deliberately and premeditatedly planned in advance to get drunk on Sunday, thereby incapacitating himself for work on Monday due to a hangover, was entitled to sickness benefits The Board reviewed the collective agreement provision (in that case it was the Canadian Union of Public Employees contract) relating to sick leave and determined that "It is the existence of this objective physical incapacity that determines illness and hence entitlement to sickness benefits under the Collective Agreement " The CUPE sick leave provisions are not materially different from the OPSEU sick leave provisions in this regard The Board went on to muse, at page 8 of the Phillips case, about why collective agreement provisions as a normal rule do not contain restrictions for sick leave eligibility based on self-infliction of illness " To determine whether an incapacity constitutes an illness on the basis of whether it is self-inflicted creates real difficulties in application For example, is lung cancer excluded from the definition of illness for smokers? Are medical conditions associated with obesity excluded? In a situation where a woman knows that a pregnancy will be incapacitating, does her incapacity not constitute an illness where she has chosen to become pregnant? Would a different result follow if her pregnancy were accidental? In our view, these examples point out the flaws associated with employing the concept of self-infliction as a basis for determining whether a condition constitutes an illness The more appropriate test, and the one that we adopt, is that illness and hence entitlement to sick leave is established where the objective evidence establishes a physical (or possibly emotional) inability to perform work II -- I J. I' 7 ~ The Board added a caveat to its finding at page 9 as follows II Our conclusion in this case should not be construed as an endorsement or condonation of Mr Phillips' actions Mr Phillips made a conscious decision to drink alcohol to the extent that he would be incapacitated and thus unable to attend at work on January 27, 1992 He was in breach of a fundamental obligation of an employee His actions were inappropriate and might well attract a disciplinary response by an employer " I I The Phillips Board was dealing with a denial of sick leave I This is a discipline case and is therefore prima facie distinguishable from the Phillips case Unlike the PhilliQS case, I we cannot draw the inference that Mr Ally set fire to his hands: I I in order to collect sickness benefits It seems from the findings at his criminal trial that he set the fire in order to collect fire insurance proceeds (which of course have been denied him) It was as a result of his negligence ln setting the fire that he burned his hands Can we really distinguish his case from that of the drunk driver who gets himself into an accident while driving impaired and makes a claim upon the sick benefits? Certainly the parties are at liberty to include a restriction in their benefits clauses excluding from coverage people whose negligent behaviour causes the illness or injury, but they have clearly not done so, and as the Phillips panel pointed out, it would create a slippery slope indeed to determine what sorts of negligent or intentional behaviour should come under the benefit ban I' ../J ., . -A 8 Mr Ally was dismissed for "profiting from his criminal conduct" by taking advantage of sick leave benefits The employer is bound by that reason in seeking to uphold Mr Ally's dismissal We can find no support for what union counsel describes as "that fuzzy moral principle" in the collective agreement wording We cannot alter, expand or modify the collective agreement In reaching our conclusion As much as we might have liked to reach a different conclusion in this case, based on moral principle, we cannot do so The employer has not proved that Mr Ally was dismissed for just cause and he must be granted a remedy We did not hear any evidence from or on behalf of Mr Ally, so it is difficult for us to fashion an appropriate remedy at this time We know that he was incarcerated for about one year commencing around the time of his dismissal and he was unavailable for work throughout that period We know that the employer was trying to get Mr Ally to provide a medical certificate of fitness to return to work in the summer and fall of 1991, and we understand no certificate was provided This could have an important bearing on the timeliness of any remedy It appears Mr Ally still suffers injuries to this day that may make him unfit for work We simply do not know Accordingly we will not reinstate Mr Ally from the time of his dismissal as is the usual case where just cause has not been found Instead we leave the matter of remedy to the parties to resolve on their own We I ...,i~ i . . 9 ' i, I'; will remain seized of jurisdiction in the event they are unable to fashion an appropriate remedy Dated at Toronto this 14th da y 0 f December, 1994. A Barrett, Vice-Chairperson ~d - E Seymour, Member '1 Dissent' Dissent Attached ~---- M Milich, Member II I -- ---- ----- .-4' /t ;0. 'jj Dissent in the Matter Between Ally and Ministry of Transportation GSB File 3085/92 I have reviewed the award in this case and cannot agree with the decision of my colleagues. The facts in this case are relatively straight forward. The grievor had been convicted and sentenced for committing arson at the store that he and his wife owned. During the commision of this crime, he sustained severe bums and was for a period of time hospitalized. The court found, and this Board accepted as fact, that he sustained his bums in the course of setting fire to his place of business and, not as, he claimed by a battery exploding two days prior to the fire. Mr Ally maintained the charade regarding how his injuries were sustained with the employer, the insurance company, the police and his doctors throughout the period from the fire in August of 1988 to September of 1991 when the employer learned through a newspaper article that the grievor had been convicted of arson and sentenced to one year in prison. Upon discovery of the conviction, the employer instituted an investigation and ultimately dismissed the grievor Mr Ally collected both short and long term sickness benefits under the collective agreement based on his inability to work because of his bums. Even when the insurance coverage ended and in the face of the employer"s continued inquirie about his return to work, the grievor did not inform the employer of the pending charges or later conviction. The issue of Mr Ally's entitlement to benefits under the collective agreement is clearly at the heart of the employer's case. It is my submission that Mr Ally's criminal activity disentitled him from any benefits to cover his losses arising out of the fire he set to his place of business. These losses, I submit, include the income which he lost as a result of his inabiltiy to work because of his bums. These were the losses covered by the income maintenance provisions for short and long term illness under the collective agreement. I believe that my COlleagues are taking too narrow a view of the rule of pUblic policy argued by the employer's counsel. As I understand it, this rule has been developed by the courts in contract and tort law and has been applied in insurance cases. Under this rule, the courts have been unwilling to enforce an agreement where to do so contravened public policy It has established what amounts to an implied term in a contract that the courts will not enforce a claim which arises out of an individual's illegal actions or activity directly connected with the injuries suffered by that person. In other I ..! I ~ - .11 words, an individual who suffers a loss for or by reason of the fact that he was engaged in illegal conduct gets nothing. The courts have decided that a person's clear right to an entitlement in these circumstances must be rejected as a matter of public policy Therefore, a car thief who suffers injuries in an accident while speeding away in the stolen car has been found not to be entitled to any compensation. The grievor was convicted of arson by the court and found by the same court to have sustained his bums during the commission of the crime This clearly falls within the parameters outlined above and, therefore, he is disentitled to any benefits under the agreement. By receiving the entitlement the grievor benefitted or profitted from his illegal activities. There is nothing new to this Board adopting principles developed by the courts to the interpretation of a collective agreement, or for that matter to the relationship between the parties. As a matter of public policy, arbitration boards have applied anti- discrimination considerations to the interpretation of agreements even where no such provision existed in the collective agreement. Estoppel has been adopted as a matter of equity The courts have said that it is completely inappropriate to allow an individual to succeed in a claim arising out of an illegal activity There is no bar to this panel adopting a similar position. Neither the union nor the employer negotiated the income maintenance provisions in the collective agreement expecting employees to obtain them as a result of illegal activities. Within this context, the case law cited by the employer's counsel regarding the dishonesty of an employee in obtaining sick benefits will properly subject the employee to discipline or dismissal is on point. As my colleagues recognize. the grievor's explanations about the cause of his injuries were dishonest. Nor, did he ever inform the employer about his pending charges and the possibility of his incarceration which would and ultimately did prevent him from retuming to work. His behaviour allowed him to collect the income maintenance benefits to which he was not entitfed under the policy established by the courts. If the employer had not discovered, through the newspaper article that the grievor had been convict of and sentenced for arson, his further absence from work would have continued to be solely attributed to his injuries. I submit that the grievor's behaviour and actions constituted such a fundamental breach of trust that the employment relationship was destroyed and was, and should, remain severed. For these reasons, I would have dismissed the grievance. ,tv/c(JOeL,fl. Michael Milich - -- -- ,- j - -- -~