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HomeMy WebLinkAbout1993-0962.Ulicny.95-01-12 -~ -....-' ONTARIO EMPLOYES DE LA COURONNE CROWN EMPLOYEES DEL'ONTARIO " 1111 GRIEVANCE ~~, COMMISSION DE SETTLEMENT , REGLEMENT BOARD DES GRIEFS 180 DUNDAS STI}EET WEST SUITE 2100, TOPONTO, ONTARIO. MSG lZ8 TELEPHONE/TELEPHONE (416) 326-1388 180, RUE DUNDAS OUEST BUREAU 2100 TORONTO (ONTARIO) MSG lZ8 FACSIMILE /TELECOPIE (416) 326-1396 _ 962/93 (' 93E 154-155 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN OPSEU (Ulicny) Grievor - and - The Crown in Right of ontario (Ministry of Health)Windsor Provincial Ambulance Employer " BEFORE: W Kaplan L Vice-Chairperson J Carruthers Member F. Collict Member FOR THE J. Paul UNION Grievance Officer ontario Public Service Employees Union FOR THE D Strang EMPLOYER Counsel " Manaqement Board Secretariat - HEARING March 24, 1994 November 9 & 10, 1994 \ 2 f..!,. ,:;..... .$ Introduction By a grievance dated March 26, 1993, Bob Ulicny, an Ambulance Officer employed by the Ministry of Health, Windsor Provincial Ambulance Service (hereafter "the employer") grieves that he was unjustly denied sick pay for March 17 & 18, 1 993 And by a grievance dated May 25, 1993, Mr Ulicny grieves that he was unjustly suspended for seven 12-hour shifts Both grievances proceeded to a hearing in Toronto and Windsor In brief, the union takes the position that the grievor should have received sick pay for March 1 7 & 18, 1 993, and that the discipline imposed by the employer, for certain events to be outlined below, was unjust, or, in the alternative, excessive The employer takes the position that the sick pay provisions. of the Collective Agreement have not been breached and that the discipline imposed was both appropriate and just. \ The Employer's Case Evidence of Sonia Campeau Ms Campeau testified She is a unclassified driver-attendant, and has approximately seven years seniority with the employer On March 17, 1993 Ms. Campeau was assigned to work the 0700 to 1900 shift at the downtown station. Ms. Campeau arrived at work on time and learned that she had been assigned to work with the grievor He did not arrive at work until approximately 8 00 a m. When the grievor arrived at work he approached Ms Campeau and advised her that he was "too tired" to attend and that he was, therefore, going to "bucketize" her Two employees are assigned to each ambulance, one drives and the other attends and does the paperwork. As will be set out below, there are a variety of informal rules governing the distribution of labour 3 ~ ~ By advising Ms. Campeau that he was going to "bucketize" her, the grievor was indicating that he would drive throughout the entire shift and that she would attend According to Ms. Campeau, the term "bucketize" is unique to the grievor, although variations of that term, for instance, "put in the bucket," are in common use Ms. Campeau testified that normal practice is for the two crew members to rotate duties after each call, although established partnerships may have their own (arrangements. After being informed that she was to be "bucketized," Ms Campeau asked the grievor how he could safely drive if he was too tired to attend, and at that point the grievor advised his supervisor that he did not wish to work with Ms. Campeau The supervisor, Mr Bob Wallis, asked the grievor and Ms. Campeau to work out their own problems The grievor refused to work with Ms. Campeau, and she testified that he said that if he had to work with her he would go home sick. Mr Wallis then suggested to the grievor that he was not sick, and Ms Campeau testified that the grievor then laughed and said in that case he would "go home-:on stress" The grievor is not Ms. Campeau's partner of choice, but she was, I nevertheless, still willing to work with him. However, Mr Wallis was successful in making an arrangement to shift crews This arrangement only lasted a short while for senior management learned of these developments and instructed the grievor to work with Ms. Campeau. Instead of doing so, the grievor said he was sick and left the workplace Cross-Examination of Ms. Campeau Ms. Campeau was asked a number of questions in cross-examination. She - \ 4 iB asserted that all the grievor ever said to her was that he was too tired to attend He never said "I feel like shit." Ms. Campeau did agree that people do get put into the bucket by their partners, but said there was a difference between being ordered into the bucket and voluntarily agreeing to attend. On occasion, Ms. Campeau has put herself in the bucket if she is assigned to work with a senior employee, knowing that this is the way the senior employee prefers it. Ms Campeau did agree that unclassified staff are often put in the bucket by classified employees; however, she insisted that this was done following discussion and agreement. Ms. Campeau does not care for the practic~ - she finds it intimidating - and she is also of the view that it is not an officially sanctioned practice Ms. Campeau did not agree, as a part-time employee, that if she was assigned to a full-time employee she would necessarily do what the full-time employee said insofar as the division of labour in the ambulance was concerned ) As already noted, the grievor was not Ms Campeau's favourite partner, and she testified about some of the problems they 'have experienced working together in the past. She insisted that she was not aWare that the grievor was sick on March 17, 1993 What she was aware of was that he claimed to be too tired to attend and, she wondered, in these circumstances, if he was also too tired to drive. Ms. Campeau did not think it was appropriate for management to accede to the grievor's request and to switch partners. It bothered her that someone would feel so adamant about not working with her At the employer's request, Ms Campeau later wrote an incident report. In that report she described the grievor's behaviour as "bizarre'" By referring to his behaviour as "bizarre," Ms. Campeau was referring to the grievor's refusal to work with her --- I 'i 5 -i; Re-examination of Ms. Campeau In re-examination, Ms. Campeau testified that the grievor had once joked, when he was also a part-time employee, that he could not wait to become full-time so that he could put her in the bucket. After he became full-time _ he told Ms. Campeau that he could now put her in the bucket. Ms Campeau and the grievor were not getting along-!3t this time, and she found his comments malicious. The grievor has insulted her on previous occasions, and in her written report describing all of these events, she states that "bucketizing" of part-time employees is "degrading, humiliating, harrowing, and nothing short of harassment." In her view, the grievor's behaviour was immature and unprofessional ~ Ms. Campeau also told the Board that she has never been required to go into the bucket against her will However, on some occasions when she is assigned a more senior partner, she will place herself in the bucket out of deference to that employee's preference to drive The grievor, while full-time, has less seniority with the employer than Ms. Campeau Evidence of Bob Wallis Mr Wallis testified He is the supervisor who was on duty on March 1 7, 1 993, and he testified that he was advised early that morning that the grievor had not shown up at work. Mr Wallis then called the grievor's \ residence and spoke with his common law spouse, Ms. Laurie Poole, who also works for this employer Ms. Poole advised Mr Wallis that there had been a problem with the grievor's alarm clock and that he would be into work shortly The grievor arrived around 8 00 a m., and soon after he arrived he approached Mr Wallis and told him that he and Ms. Campeau could not work together owing to differences of opinion about such matters as ) 6 ~ work ethics The grievor asked Mr Wallis to make an executive decision, and told him that if he did not split them up that he would go home on stress. The grievor did not say this like a joke According to Mr Wallis, his manner was very serious. The grievor added that he was not f~eling well and did notfee~ like attending Mr Wallis acceded to the grievor's request and switched some crews even though this did not finally resolve the matter as the switched crews were on different shifts. Around 9 30 a.m., Mr Wallis reported what had occurred to his supervisor, Mr Bob Hyland. About 10'30 a m Mr Hyland instructed Mr Wallis to return the grievor and Ms. Campeau to their original assignments. Mr Wallis contacted the grievor and informed him of management's decision The grievor asked for an explanation, and then told Mr Wallis that his ulcer was acting up, that he was out of medication, and that he was going to leave work to go and consult his doctor Mr Wallis asked the grievor if he could remain on the job until a relief employee was obtained, and the grievor said that he could not as he was too stressed out to continue to work. Mr Wallis asked the grievor to keep him informed about his medical status, and testified that he appeared upset when he left the station For approximately ten minutes, until relief was obtained, the grievor's ambulance was out of service Cross-Examination of Mr. Wallis In cross-examination, Mr Wallis agreed that .it is not unusual for employees to go home during the course of a shift, and when they do the employer must down-staff until a relief employee arrives Usually, the person occupying Mr Wallace's position serves as relief, during the day shift, when someone goes home sick. In the result, there is rarely any disruption of service ~ 7 ~ '0 Moreover, if there was an urgent need for an ambulance, one person can ~ attend at the scene of a call and render assistance The only thing that that person could not do, if alone in an ambulance, is transfer a patient to a hospital Turning to the ev~nts of March 17, 1993, Mr Wallis insisted that the grievor did not tell him that he was sick; what he told him was that he did not feel like attending as he was not up to it. Mr Wallis was not aware that the grievor and Ms. Campeau had had difficulties working together in the past. While Mr Wallis separated Ms. Campeau and the grievor, he testified that it was necessary, given the different shifts worked by the other ambulance crew, that they return and work together for the last three hours of their March 17th shift. Mr Wallis could recall both Ms Campeau and the grievor agreeing to resolve the matter on this basis And he was also satisfied with this resolution The only reason why this solution was set aside was because he was instructed to re-pair the grievor and Ms Campeau. No explanation was provided to Mr Wallis for this management \ decision. While Mr Wallis had never split a crew before, ,he testified that doing so was not a big deal and that it seemed to resolve the problem When Mr Wallis told the grievor that he was being reassigned to Ms Campeau, the grievor said that he was not feeling well, and that his condition would get worse if he had to work with her Mr Wallis then told the grievor to make a decision, and the grievor decided to go home sick. Mr Wallis then asked the grievor to keep the office informed about his status When the grievor first told Mr Wallis that he was sick, Mr Wallis did not believe him. He later came to believe that the grievor was sick. Many . -, 8 ". ambulance employees get sick, and one reason is the high level of occupational stress According to Mr Wallis, when he was first hired as an ambulance attendant, he was bucketized about 90% of the time In general, most employees switch driving and attending duties after each call, although there will be days and circumstances in which they do not. It is up to each partnership to decide how to divide the workload \ Re-examination of Mr. Wallis In re-examination, Mr Wallis was asked a number of questions about switching ambulance crews. In brief, there are a number of overlapping shifts. And so to switch crews may' cause some difficulties, for example, if one employee, as was the case here in each of the switched crews, was scheduled to leave work at 400 p.m. and the other crew member was scheduled to work until 700 pm. Moreover, there may be practical problems in arranging the actual transfer if an ambulance is out on call at the end of one employee's shift. Overtime expenses may then be inc'urred I If Mr Wallis has to relieve, while awaiting the arrival of a casual employee, he is precluded from attending to his other duties and responsibilities. Mr Wallis testified that while he later came to the view that the grievor was sick, in the morning th-e grievor seemed well enough to work; indeed, he had agreed to an arrangement that would have resulted in him working his entire shift. Evidence of Bob Hyland Mr Hyland, the Operations Manager, testified He has years of experience in ambulance work and has served in a variety of different capacities. He has I l 9 > also known the grievor for approximately ten years, has hunted with him, and assisted him in obtaining employment with the employer Mr Hyland was on duty on March 17, 1993, and sometime in the morning the grievor's conduct came to his attention Mr Hyland discussed the grievor's refusal to work with Ms~ Campeau with his superior, Mr Conrad Marier, and the decision was made to reassign the grievor to his original assignment. In management's view, allowing employees to switch shifts would lead to the operational difficulties outlined by Mr Wallis in his re-examination Some time later in the morning on March 17, 1993, Mr Hyland was advised that instead of returning to work with Ms. Campeau, the grievor had claimed that he was sick and left the job. ! This, however, did not end the matter for around 1 00 P m. the grievor ~ arrived in Mr Hyland's office Mr Hyland wrote a report later that day setting but what occurred l. At approx. 13 00 hrs R. Ulicny arrived in my office with a Doctor's note stating two days off He kept the original note and gave me a copy He then went on to advise me of his displeasure working with S. Campeau and stated that, he will not work with her and if she is given to him again, he will again go off sick, as he has ulcer problems and his illness escalates because of her causing him stress During our discussion he made a number of comments and accusations against management to the point I felt threatened and asked him to leave my office Comments and accusations were 1) Management was not being fair to the employee and we should be' meeting them halfway instead of dictating to them. - 10 - 2) We should be looking after our employees as they are stressed and we are not doing anything to help them, we are only causing them more stress. 3) We shouldn't be forcing them to work with people they don't want to work with 4) The vehicles and bases are being damaged and will continue to be damaged, in retaliation for the way we treat them. 5) Management here is so screwed up that, they can't even decide who the shift Managers will be 7) They then pick a Manager thats a wimp and a thief 7) You people don't even known whats going on out there There are people out there that hate you and there are a number of people out there ready to shoot this office up, just like the Post Office ( At this point I had, had had enough from this man and asked him to leave my office. He starts to say something else and I told him if your going to sit here and tell me about shooting up my office, you can get out of her right now, our conversation has ended \ After a very brief insignificant conversation he left my office I feel this confrontation with R. Ulicny, in my office was harassing and caused me unwanted stress to an already stressful job. Its getting pretty bad when employees can come into your office and make threats on your life or worry you that there are others out there with this attitude Your attention to the above matter is appreciated According to Mr Hyland, the grievor was obviously upset during this meeting However, when Mr Hyland told the grievor to leave, the grievor changed his attitude and attempted to change the subject of the conversation to a disCussion about hunting The reference to the "Post Office" was to a well-publicized incident that had earlier taken place ~ 11 across the border in Detroit in which a number of members of management were shot. ~ A number of the other concerns raised by the grievor directly related to the workplace There really was a problem with a manager discovered to have a criminal record And there really was a serious problem of employee vandalism. Employees were urinating in humidifiers, and on washroom walls and toilet seats in the female washrooms There was also a problem with employee stress caused by attendance at espesially 9ifficult accident scenes. But it was the reference to shooting management that caused Mr Hyland to become most upset, and he became concerned that he may bea target. This concern, along with the details of this incident, were reported to Mr Marier along with a request that surveillance cameras and other ) security equipment be installed The grievor has never apologized for his comments, or expressed any regret about them. Mr Hyland testified that employees are not required to personally deliver doctor's letters, although they sometimes do S9 He also to'ld the Board that the division of labour between an ambulance crew is usually worked out by i that crew, or the duties are simply shared with the driver and the attendant switching positions after each call On occasion, with a new employee, he or she will be assigned to the bucket. Ms. Campeau, he testified, is an experienced and competent employee Cross-Examination of Mr. Hvland As already noted, Mr Hyland and the grievor have known each other, for some time The grievor got his job with Mr Hyland's assistance, and later won a posting for a full-time position Until this incident, the grievor and Mr s 12 Hyland enjoyed a good working relationship, and other than the discipline imposed in this case, the grievor has a clean disciplinary record The grievor does not have a history of sick time abuse. Mr Hyland agreed that Mr Wallis enjoyed considerable latitude in the exercise of his supervisory functions, and unless there was a crisis he would have little need to contact Mr Hyland with respect to the decisions that he made during the course of the day At the time that Mr Wallis was asked to reverse his earlier decision, the ambulance service was operating without incident. Mr Hyland was not aware that arrangements had been made to reassign Ms. Campeau and the grievor to the same ambulance for the final three hours of their shift. Mr Hyland also testified that he generally only requests employees to provide doctor's notes where he suspects that there is 'abuse of sick time On March 17, 1993, Mr Hyland did not ask the grievor to provide a doctor's note; it was his belief, however, that Mr Wallis made such a request. When the grievor arrived at Mr Hyland's office on March 17, 1993, he brought in a note from a Dr Dhillon. All that the note said was "unfit for work x 2 dys" Mr Hyland accepted the note, but did not consider it valid Given what he had been told by Mr Wallis, Mr Hyland suspected the grievor of sick time .abuse. Mr Hyland testified that he was not in a position to determine whether the grievor was sick or not. He was in a position to assess the circumstances, and in this case the grievor had said that he would be sick unless he got his way; he did not get his way and then claimed to be sick. /Mr Hyland does not believe that this is indicative of a real illness. Having made this , 13 / ; determination, in consultation with Mr Marier, management decided not to ask the grievor for any further medical documentation. Management also decided to deny the grievor's two-day sick leave claim. Mr Hyland agreed that the employer is entitled, under the collective agreement, to require an ~ employee to furnish appropriate medical documents and to attend at a mandatory medical Mr Hyland knew that the grievor had been told to advise him of his sick leave status, but he did not expect him to show up at his office later on March 17th It was his expectation that the grievor would go home and recuperate His failure to do so is another reason he I formed the view that the grievor was not really sick. Moreover, Mr Hyland testified, at no time in his afternoon discussion with Mr Hyland did the grievor ever say that he was sick. That discussion was more of a monologue than a discussion as it was simply the grievor speaking to his various concerns. Many of the issues the grievor raised were known to Mr Hyland and the grievor's reference to them did not bother him. Indeed, Mr Hyland did not take issue with the substance of the issues being raised He knew that there was a problem with stress, and he knew that there was a problem with supervisors and with vandalism. While all of these issues suggested a failure of management, it was not until the ( grievor referred to the Post Office that Mr Hyland became concerned And in this regard he testified that he was aware of a recent incident during which one Windsor Ambulance Service employee had said to 'another that he had three bullets and a gun and intended to take care of management and then himself Needless to say, the police were called in Mr Hyland was asked if the grievor ever made any threats, and he agreed that he did not to threaten to shoot him or anyone else Nor did he threaten 14 - to commit any act of vandalism. However, the reference to the shooting caused Mr Hyland to become upset, and that is why he asked the grievor to leave. If the reference to the Post Office and shooting management had not ) been raised, Mr Hyland is of the view that management would simply have ~ dealt with the. grievor's abuse of his sick time and his reJusal to work with Ms. Campeau. At the end of the day, Mr Hyland asked a number of people to prepare written reports. The grievor was not, however, among them. Mr Hyland agreed that it would have made sense to ask the grievor to submit a report with his version of events, and that other employees at the downtown ~ station may also have been in a position to observe events and comment on them. As the senior man, Mr Hyland, before joining management, has put junior employees in the bucket. Generally, however, these arrangements require mutual consent. Employees cannot refuse to work with each other because they do not like each other Re-examination of Mr. Hyland - In re-examination, Mr Hyland told the Board about some of the other problems that may arise if crews are switched It is difficult, he said, to give just one example, to effectively dispatch ambulances, such as for out-of-town trips Evidence of Conrad Marier Mr Marier, the Manager of the Windsor Ambulance Service, testified On the morning of March 17, 1993, the grievor's actions were brought to his ~. 15 -; attention After learning what had occurred, Mr Marier instructed Mr Hyland to instruct Mr Wallis to re-pair the .grievor with his original partner Mr Marier expects employees to act like professionals, and this means working with their assigned partner After seeing how upset Mr Hyland was following his encounter with the grievor, Mr Marier asked him to prepare an incident report and to obtain reports from Mr Wallis and Ms. Campeau Mr Marier reviewed these reports r , and decided to impose discipline A t the pre-disciplinary meeting, the grievor denied making the statements Mr Hyland attributed to him in his written report. According to Mr Marier, the grievor stated at this pre-disciplinary meeting that all that had taken place in his meeting with Mr Hyland was a friendly discussion about hunting Cross-Examination of Mr. Marier In cross-examination, Mr Marier refuted the suggestion that he jumped to the conclusion that the grievor was not sick. He told the Board that he reached that conclusion because the grievor had stated that he would become sick if he had to work with Ms. Campeau With respect to employees who do not get along, Mr Marier testified that he has switched employees in those circumstances. Usually, he first discusses the situation with the employees concerned, and he noted that what switching has taken place has been between full-time permanently assigned employees, not between full-time and part-time employees assigned together on an occasional basis Mr Marier is of the view that Mr Wallis had been unable to deal with the difficulty occasioned by the grievor threatening to withdraw his services 16 - unless he got his way, and this is one of the reasons why he intervened Mr Marier agreed that he could have allowed Mr Wallis's decision to stand, and that doing so would not necessarily have resulted in overtime expenses or operational disruption Even Jf there had been some overtime or operational disruption, this would not have been altogether unusual given the frequency of both in the operation of the ambulance service Had he wished, Mr Marier could have requested additional medical documentation from the grievor He could also have referred him to a mandatory medical. Mr Marier did not, however, wish to do so because additional medical information would not affect the determination that he had reached, namely that the grievor was abusing sick time Even if the doctor who examined the grievor on March 17th had provided a detailed report setting out reasons why the grievor was required to take two days off work, Mr Marier's view about the veracity of the grievor's claim would have remained the same Mr Marier agreed that sometimes employees come to work not feeling 100% in the hope of being able to put in a full day's work, but unfortunately prove unable to do so This was not, in his view, what had occurred in this particular case Mr Marier did not ask the grievor to file any reports about the events of March 17th because he was satisfied that he had obtained all of the information that he required And in Mr Marier's opinion, the discipline was Justified given the grievor's conduct on the morning and afternoon of March 17, 1993 The Union's Case Evidence of Bob Ulicny The grievor testified on his own behalf An Ambulance Officer 2, the grievor has years of experience in the industry, but began with this L ~ 17 ~ employer on a part-time basis in March 1 989 He joined the full-time ranks in May 1991 The grievor has known Mr Hyland for years and, in fact, attended school with his son. According to the grievor, his alarm went off on time on March 17, 1993 but when he woke up he felt nauseous, began vomiting and had diarrhea He fell back to sleep, but later managed to wake up and make it into work at approximately 8 00 a m. At that time he saw a fellow employee, Mr Randy Rollo, and told him that he "felt like shit." Once he entered. the downtown station he found out that he had been assigned to work with Ms. Campeau, and informed her that he was going to "bucketize" her Ms Campeau replied that this was not fair, and the grievor then said that he was the senior employee and that sh~ was going into the bucket. The grievor testified that it is not a practice to put junior employees in the bucket, but that it happens with a high degree of frequency Ms Campeau informed Mr Wallis in front of the grievor that she disagreed with the grievor's decision, and Mr Wallis asked the grievor why he wanted Ms Campeau in the bucket. At this point, according to the grievor, he informed Mr Wallis that it was always a stressful experience working with Ms Campeau, and because he was sick he wanted her to attend while he drove The grievor then asked Mr Wallis to make a decision arid told him that he would go home sick if he had to work with Ms. Campeau Mr Wallis then asked the grievor if he was really sick, and the grievor said that he was. The decision was then made to switch crews. The grievor began working with Mr Rollo -- .~ - 18 - Later that morning the grievor and Mr Rollo were called back to the station, and the grievor was advised that he was to work with Ms~ Campeau Although the grievor sought an explanation from Mr Wallis, none was forthcoming The grievor decided to leave, and advised Mr Wallis that he could not stay until the relief arrived As the grievor was preparing to leave he threw up Mr Wallis then appeared and asked the grievor to inform the office how long he would be off The grievor was not instructed to provide a medical certificate He did, however, contact his family doctor and learned that he was away On the advise of a recorded message, the grievor attended at a clinic where he was advised to take two days off ., work. Subsequently the attending physician provided the grievor (with a more detailed medical report. Dated November 11, 1994, Dr Jaswinder S Dhillon states The above named man was seen at the Urgent Care Centre, on March/1? 193 at 12 05 PM At that time he complained of diarrhea and cramping pain in his abdomen as well as some hyperactivity He related to me that he experienced these symptoms during periods of stress related to his job as an Ambulance Attendant. For the above reasons he was given a two week course of Ranitadine and a note for two days off work. He was to follow up with Dr Gatrall, his family doctor, for any further follow up. A letter from Dr James R. Gatrall states, in part, "I want to confirm that the medical problem for which he saw Dr Dillon is something I have treated him on and off over the years myself Since October 1 989 he has had many i episodes of epigastric pain related to excess acidity and other factors On 19 '0 each occasion he required medical attention and prescription medication" After attending at the Urgent Care Centre, the grievor decided to return to work to prove to management that he really was sick. Accordingly, he attended at Mr Hyland's office and gave him Dr Dhillon's note Mr Hyland did not raise any objection as to the sufficiency of the doctor's note What Mr Hyland did do was invite him to sit down, which he did, and a general discussion about work conditions ensued. The grievor testified that he did, by and large, say all of the things recorded in Mr Hyland's memorandum reproduced above In his view, the mood of the conversation was definitely not threatening Turning to the specific points, the grievor told the Board th~t he never said, if he had to work with Ms. Campeau in the future, that he would again book off sick. He did say that management should be fair to employees and meet , with them, and by this he meant that the lines of communication should be improved He also felt that the employer should provide stress counselling, and this is why he raised his concern about management not looking after employees who are stressed Indeed, given all of the stress in the workplace, management was in a position to alleviate some of it by assigning employees to compatible teams, and that is why he suggested that the employer should not force people to work together In making this suggestion, the grievor was not, he testified, attempting to challenge management's authority Management, however, did not seem to be too interested in helping him resolve his problems with Ms. Campeau, and the grievor testified that neither Mr Hyland, nor any other member of management, have suggested that steps be taken to assist him and Ms. Campeau in resolving their interpersonal difficulties ) , 20 - ) When the grievor referred to the sabotage taking plac~ in the workplace, he was emphatically not threatening to take such action, nor had he ever been involved in it. All he was trying to do, according to his evidence, was to discuss this issue as part of a general conversation concerning problems and frustrations in the workplace The problems with shift managers, and the fact that a manager was hired only to be let go after it was learned that he had a criminal record, were further symptoms of some of the many problems in this workplace Ali of these issues, in short, were widely known by both employees and members of management, and the grievor testified that the conversation was without incident until he raised the matter of the Post Office '\ In doing so the grievor had no intention whatsoever of threatening Mr Hyland or anyone else for that matter He had known Mr Hyland for years, and actually felt that he could talk to him about how he really felt, and in that way get some things off his chest. However, when the grievor mentioned the Post Office Mr Hyland became very upset and got all worked up. The grievor then changed the topic of conversation. The grievor was asked why he denied making these remarks during the pre-disciplinary interview, and he testified that this was the first time that he had ever been in trouble and so decided to keep quiet. Cross-Examination of Mr. Ulicny The grievor was asked a number of questions in cross-examination He testified that even if Ms. 'Campeau had gone into the bucket when he requested she do so that there was no guarantee, given how he felt, that he would have been able to complete his shift. The grievor had, he testified, / ~, 21 - the right to put Ms. Campeau in the bucket because he was full-time and she was part-time, even though she had more years of service than he did While the grievor had no right under the Collective Agreement to order' Ms. Campeau into the bucket, there was a practice to this effect and because the grievor was sick and tired he instructed her to attend. Ms Campeau refused the order and complained to Mr Wallis. While the grievor was well I enough to work if Ms Campeau was in the bucket, if he had to work with her his condition would become unbearable, and this is what he explained to Mr Wallis The grievor testified that working as an ambulance officer is a tough and L stressful job, and that working with Ms Campeau is an unnecessary additional aggravation. Ms. Campeau would second guess him, and try to I I shove him out of the way The grievor described Ms. Campeau as intense and authoritative, and noted that she did not allow him to order her around. Ms. Campeau, the grievor testified, likes to be the primary attendant, as she enjoys being in control Ms. Campeau is a "girl, "and the grievor has a hard ( time working with her The grievor was surprised when Ms Campeau refused to go into the bucket because he expected her to be more accommodating Re-examination of Mr. Ulicny In re-examination, Mr Ulicny testified that even though Ms. Campeau had been with the employer longer than he had, it was established practice that the full-time employee called the shots and decided who would drive and who would attend. It was an accepted norm, according to the grievor, that part-time employees attend and full-time" employees drive I \ ., 22 ) - Evidence of Randy Rollo Mr Rollo testified on behalf of the grievor He has years of experience in the ambulance industry, and told the Board that he was on duty on March 17, 1993 At that time he ran into the grievor when arriving for his shift which was scheduled to start at 800 a.m. The grievor told him that he was not feeling well As has already been established, Mr Wallis separated the grievor and Ms. Campeau and, in the result, the grievor was assigned to work with Mr Rollo As the senior man, Mr Rollo directed the grievor to the bucket. While not "written in stone," it is an established practice that the "senior man" decides who works where, and that if a full-time and part-time employee are paired, the full-time employee makes this decision .J The grievor was not offended when he was directed to the bucket because he understood the rule Mr Hyland has put Mr Rollo in the bucket, and Mr Rollo has put Ms. Campeau and other part-time people in the bucket. This i$ the way the system works. If Mr Rollo had been assigned to work with Ms - Campeau on March 17, 193, Ms. Campeau would have been directed. to the bucket. In Mr Rollo's view, management likes the "senior man" to be behind the wheel While the grievor advised Mr Rollo that he was ill and stressed out, Mr. Rollo was of the view that he was capable of performing his duties. Had he not been capable of doing so, Mr Rollo would have reported him to the supervisor On several occasions the grievor advised Mr Rollo that he believed that he would be able to complete his shift. fiowever, after dispatch called and informed the grievor that he was to be re-paired with \ Ms. Campeau, his condition began to rapidly deteriorate The grievor was shocked that management was behaving in this fashion as the situation had been both diffused and resolved. ,~ 23 'i Mr Rollo is aware of a number of situations in which personnel changes \ were made in circumstances not dissimilar to this case. Some people simply cannot function well as a team, and it is best for everyone if they / are split up. In Mr Rollo's opinion, Mr Wallis made an excellent decision on March 17, 1993, and he still cannot understand why that decision was overridden Mr Rollo was asked some questions about Ms. Campeau He testified that "the girl" was an excellent attendant, although she has an attitude and was somewhat aggressive Ms. Campeau does not like being put in the bucket, and she shows her displeasure by refusing to speak to the person who put her there during the shift. Cross-Examination of Mr. Rollo Mr Rollo was asked some questions about the grievor, and he testified that he was obviously ill and that working with Ms Campeau would not have improved the situation Mr Rollo has never refused to work with anyone, but if he a problem with a particular person and was also not feeling well, he would probably book off sick. Management is aware that some employees do not get along, and when these concerns are brought to the employer's attention efforts are usually made to keep those employees apart. Mr Rollo is aware of situations where employees have asked to be separated, but he is not aware of any other case in which an employee stated that he would book off sick unless he or she got a partner switch Mr Rollo is aware of situations in which employees have been told to work with their assigned partners notwithstanding an objection to doing so -- - 24 :. Re-examination of Mr. Rollo In re-examination, Mr Rollo testified that the practice of placing junior employees in the bucket has gone on for years, and that management is well aware of it. Moreover, this practice serves management's interests, the interests of employees, and those of the general public. The evidence having been completed, the case proceeded to argument. Employer Argument ! Employer counsel began his submissions by noting that there were two grievances before the Board: one dealing with denial of sick leave benefits, and one alleging unjust discipline In the employer's submission, in denying the grievor sick pay for March 1 7 & 18, 1993, the the sick leave provisions of the Collective Agreement, providing that employees who are unable to attend to duties as a result of sickness or injury, had not been breached. And counsel argued that there was no breach in this case because there was no illness responsible for the grievor's absence from work. In this case, the evidence ~stablished that the grievor slept in, arrived late for work, learned that he had been assigned to Ms. Campeau, and was then unsuccessful in his attempt to bucketize her Having failed to bucketize her, the grievor told his supervisor that unless he got a new partner he would leave work sick. When he got a new partner he was able to perform his duties and responsibilities When he was reassigned to Ms. Campeau he became "sick," and the employer took the position that this was not a genuine illness. A real illness was a precondition to obtaining benefits under the sick leave provisions of the Collective Agreement. I . -~ 2S There were other reasons in this case for believing that the grievor was not truly sick and that his illness did not really preclude him from attending at work. Counsel noted that after the grievor visited a doctor, he did not go home to recuperate Rather he returned to work and initiated and engaged in a lengthy discussion about problems in the workplace Not once during this discussion did the grievor say that he was so sick that he could not work. In the employer's submission, what really happened in this case was that the grievor refused to work with another employee, and when he was told that he had to work with that individual he purported to be sick, and then claimed benefits under the short term sickness plan provid~d for in the Collective Agreement. Turning to the language of Article S2 of the Collective Agreement, counsel argued that employees could not simply assert that they were sick in order to obtain the benefits of this provision. Obtaining these benefits required a real illness and required the employee to be unable to attend as a result of that illness Furthermore, in the employer's submission, when an employee exercises his or her discretion under this provision, he or she must do so in a bona fide fashion. The I exercise of discretion, in leaving work because of illness and in claiming sick leave benefits, must be reasonable and must be done in good faith. None of these elements, in the employer's view, were present in this case What had happened in this case, very simply, was that an employee threatened to abuse the sick leave provisions if he did not get his way, he did not get his away and he made good on his threat. There was no doubt that the grievor visited a doctor in this case, and counsel noted that normally doctor's notes are accepted without question However, this was one case where the doctor's note should not be relied I t, 26 " upon, or given any weight, because of the circumstances in which it was obtained - after the grievor had been told to work with Ms Campeau Only when the grievor was informed that he would not get what he wished was he too "sick" to work. He was, counsel noted, well enough to return to work to engage in an extended discussion about his workplace complaints Accordingly, counsel argued that there had been no Collective Agreement breach, and that the grievor's first grievance should be dismissed With respect to the second grievance; counsel argued that, if anything, the discipline imposed was moderate given all of' the circumstances of this case Counsel noted that the evidence established that the grievor attempted to give orders without authority, i e to bucketize Ms. Campeau, that he threatened to abuse the sick leave provisions if he did not get his way, and that he made good on this threat (while working for an emergency service and thereby potentially endangering the public health) The grievor refused a direct order to work with Ms. Campeau and attended at Mr Hyland's office where he repeated his act of ins.ubordination and threatened to again book off sick if assigned to Ms. Campeau Further acts of insubordination followed, and they were accompanied by a number of implied threats as was subsequently outlined by Mr Hyland in his report to Mr Marier The references to sabotage and shootings could only be seen as what they were a threat to the employer if the grievor did not get what he wished. Given the fact that the grievor was a hunter, and given that there was vandalism in the workplace, Mr Hyland had, the employer submitted, every reason to be concerned by the substance of the grievor's remarks. The grievor knew that Mr Hyland was extremely upset by these remarks, and it ~as noteworthy that the grievor has never apologized for them. It was also worth mentioning, in the employer's view, that the grievor lied during the 27 ( . pre-disciplinary meeting \ In all of these circumstances, the discipline which management eventually imposed was well within the bounds of reasonableness The grievor has demonstrated no remorse, and there were no mitigating circumstances which should lead the Board, counsel argued, to reduce the penalty A~cordingly, and for the foregoing reasons, employer counsel asked that the second grievance also be dismissed Union Argument The were two grievances in this case, and on behalf of the union Mr Paul argued, turning to the first of these grievances, that the evidence established that the grievor was sick on March 17 & 18, 1993, and he was therefore entitled to the benefit of the sick leave provisions of the Collective Agreement. Mr Paul noted that Article 52 of the Collective Agreement bestows a benefit on employees, and it simply requires that an employee be unable to attend to work because of illness. It does not require that the grievor, or any other employee for that matter, be unable to attend to work all day because of illness, it requires that an employee be unable to \ attend to work because of illness, and on March 17, 1993, the grievor was no longer able to attend to work because he was sick. He had, therefore, established his entitlement, and that being the case he should be paid for these two sick days as required by the Collective Agreement. Mr Paul noted that there was evidence establishing that the grievor was not well - his coworkers could see as much - but there was also uncontradicted medical evidence establishing that the grievor could not attend at work because he was sick. The employer must, the union ,!. 28 - asserted, accept the medical certificates proferred by employees, and if they have reason to doubt these certificates, they can then take issue with them by asking for further documentation or requiring a mandatory medical Neither step, Mr Paul noted, had been taken in this case Referring to the Board's decision in Phillips 2459/92 (Stewart), Mr Paul argued that it is now established in the jurisprudence that entitlement to sick pay is "established where the objective evidence establishes a physical (or possibly emotional) inability to perform work" (at 9) In the union's submission, the objective evidence, as seen in the grievor's testimony and doctor's letter, was that the grievor was sick and unable to attend at work, and that being the case he was wrongfully denied sick pay for October 17 & 1 8, 1 993 Mr Paul noted that the grievor was sick when he woke up, but still reported to work. He told management and others that he was sick when he arrived at work, and 'his illness escalated When it did, he left work and proceeded directly to a doctor's office. He was examined by a doctor and ordered to remain away from work for two days. A note to this effect was provided to the employer And, the union argued, if the employer had any doubts about the validity of the doctor's letter and the grievor's claim, it should have exercised its other Collective Agreement rights. It did not do so, \and in the result, it was required to pay the grievor's claim. The union also pointed out that at least one member of management, Mr Wallis, formed the view' that the grievor was truly sick and that he should have received sick pay for March 1 7 & 18, 1993 Mr Wallis had, the union asserted, observed the grievor, and his opinion should be accorded some significant weight. In the union's view, all of the evidence 'in this case I l . 29 I ~ established that the grievor was sick on March 17, 1993, and there was no evidence to the opposite effect. The grievor had provided proof that he was sick and unable to attend at work and there was, therefore, no basis in fact or law to deny the grievor's claim. Turning next to the matter of the grievor's suspension, Mr Paul began his submissions by taking issue with the employer's investigatory process He noted that the grievor was never asked to provide a report, nor were several other employees who may have been in a position to provide information about what had occurred This investigatory process, Mr Paul argued, was far from reason-able Moreover, the evidence established, the union argued, a series of management overreactions in this case With respect to the penalty which was imposed, it was important, the union argued to keep in mind that in ordering Ms. Campeau to the bucket, the grievor was simply giving effect to a longstanding work practice, and one that was well known to management. Indeed, there was uncontradicted evidence that management approved of the practice and that members of management engaged in it. The grievor may not have had the technical authority to place Ms Campeau in the bucket, but in doing so he was not doing anything unusual or out of the ordinary It was true enough that Ms Campeau took issue with the grievor's order However, what was important in the ul'Jion's submission was that Mr Wallis, the frontline manager, was able to deal with the situation and resolve it. If senior management/ had not interfered with the decision Mr Wallis took, none of the subsequent events would have occurred. However, senior management did interfere, notwithstanding an established practice of '- .i '" 30 i separating individuals who did not get along The meeting with Mr Hyland, and the content of the grievor's remarks at that meeting, were, the union argued, taken out of context and exaggerated in importance Mr Paul noted that Mr Hyland was extremely upset at the end of the meeting, and he wrote his report while feeling upset. Mr Paul also observed that until the grievor referred to the "Post Office" the meeting did not upset Mr Hyland, and it was only this reference, which the union argued was misunderstood, that caused Mr Hyland to become alarmed When the grievor realized that Mr Hyland had become upset, he immediately changed the subject of conversation. This evidence did not establish, the union argued, any intention on the part of the grievor to either threaten or alarm Mr Hyland or anyone else The grievor never threatened to vandalize anything or shoot anyone All that the grievor did was attempt to discuss some workplace issues, all known to management, that were of concern to , him. It was true enough that the grievor did not admit his misconduct at the pre-disciplinary meeting, but the union argued that nothing in this case should turn on that fact given that the grievor was a stranger to that process and was understandably intimidated by it. Even if some penalty was appropriate in this case, the union argued that the penalty which was imposed was excessive. Mr Paul noted that the grievor did not just lose pay for October 17 & 18, 1993, he also lost seven 12-hour shifts, or two weeks of work. And it was noteworthy in this respect, that the suspension letter gives no indication of the weight being attributed to the grievor's various acts. It referred, instead, to abuse of the sick leave plan, insubordination, disorderly conduct and costly disruption to the employer in terms of operations and overall morale In the union's ~ 31 ~ submission, there was no abuse of the sick leave plan, no refusal to follow any order and no real evidence of disorderly conduct. Moreover, there was no evidence of costly disruptions to the service in terms of either op~rations or morale While the letter concluded by instructing the grievor to cease and desist from using threatening and abuse language, there was no evidence that he had done either in this particular case What evidence there was indicated that the grievor raised well-known workplace problems with a member of management in order to discuss them. Yet a very serious penalty was imposed, and the union argued that the severity of this penalty was far out of proportion to anything the grievor had done And to make the situation even worse, the person who imposed the penalty was not called to give any evic;tence about the matters which he took into account, or the weight which he assigned to them. This was another reason for setting the penalty aside, or at least reducing it significantly Decision Having carefully considered the evidence and arguments of the parties, we are of the view that the first grievance should be dismissed, and that the penalty being grieved in the second grievance should be reduced Grievance With Respect to Sick Pay With respect to the grievance alleging a violation of Article 52 of the Collective Agreement, we find that there has been no breach. That provision, as both parties noted, requires an employee to be ill and further requires that the employee be unable to attend to work because of illness. In this case, the facts make it absolutely clear that while the grievor may not have been feeling well on March 17, 1993, whatever illness he may have had was not of such a nature or extent so ~s to preclude him from attending 32 I~ ~ at work. The evidence makes it crystal clear that the grievor only became so "sick" that he could not work when he was_ instructed to work with a coworker Until that point he was able to work. The fact of the matter is that the grievor threatened to leave work if he did not get his way, and when his threat initially worked he worked. The grievor was well enough to work with Mr Rollo, who testified th~t if he had concerns about the grievor's health, he would have raised those concerns with management. Moreover, Mr Rollo testified that he had every expectation, based on what the grievor told him, that he would complete his shift. Very simply, the grievor was well enough to work until he heard that he was to work with Ms. Campeau. His condition then "deteriorated" This -. coincidence cannot be believed We do not take issue with the doctor's note. No doubt that note was provided in good faith by the attending physician However, any question about whether the grievor was really sick, and thus unable to attend at work, is conclusively resolved by his returning to, work after he obtained the doctor's note and his engaging in a prolonged discussion about his workplace grievances This is not the conduct of a sick employee who is unable to attend at work because of his illness For whatever these observations are worth, in some cases it is simply not sufficient for an employee to produce .medical evidence, such as Dr Dhillon's note, and by the production of that evidence establish illness and inability to attend at work. Normally, and in the large number of cases, evidence of this kind, indeed, the employee's "say so" alone, will be sufficient to establish entitlement to the short term sickness benefits provided for in the Collective Agreement. There will, however, be cases, such as this one, where the context, considered in its totality, indicates no ~ 33 ~ real illness precluding attendance at work but an attempt to abuse the sick leave provisions of the Collective Agreement. Certainly, that is what the evidence establishes in this case And when the evidence is to this effect, as we have found here, management may, as the union suggested, require further documentation It may a'lso require a mandatory medical This is the practice that management will usually follow However, there may be cases where management concludes that requiring further medical documentation or sending an employee to a mandatory medical will serve no useful purpose This conclusion must obviously be based on the facts of the particular case, and we find that in this case management, given all of the circumstances, had e\(ery reason to deny the claim for it had every reason to believe that it was unreasonable and made in bad faith It was, therefore, entitled to reject the claim and deny the benefit. The employee was, of course, entitled to' take issue with this decision, which he did by filing a grievance ,In the same way that this Board bas held that management is subject to a duty of reasonableness in the administration of the Collective Agreement, employees, where they have a discretion, are subject to a similar duty And that means only claiming the benefit of the sick leave provisions of the Collective Agreement where they are truly sick and unable to work. As indicated above, we do not find in this case that it was illness that precluded the grievor's attendance at work. All of the facts have to be examined, and when they are the evidence is clear and overwhelming that it was the grievor's refusal to work with Ms. Campeau, not real sickness, that caused him to ,leave work. ( ------...- I. 34 u ~ Grievance With Respect to Discipline The second ,grievance in this case alleges that the grievor was unjustly - suspended from employment, and the union takes issue with the penalty imposed Having heard all of the evidence, we find that the employer did have just cause to suspend the grievor from employment, and to impose upon him a suspension of a significant term. Notwithstanding the union representations on point, we find that the grievor threatened the employer with the withdrawal of his services if he did not get reassigned, and then gave effect to his threat when he was informed that he would have to work with Ms. Campeau While this action , did not cause significant disruption in the employer's operations, it had the potential to do so It certainly affected employee morale, and Ms, Campeau '\ was, as she testified, disturbed by the grievor's refusal to work with her This misconduct warrants a significant disciplinary response beyond the denial of two days of sick pay In our view, a 36 hour suspension, or three "\ 12-hour shifts, is appropriate and just in these circumstances But what about the meeting with Mr Hyland? In our view, there is, in general, nothing wrong with an employee sharing concerns with a member of management, although the timing of this meeting, given that the grievor claimed to be sick, leaves a great deal to be desired. Mr Hyland testified that the only thing that bothered him was, the reference to the Post Office This reference upset him, and we can certainly understand why But we cannot find that the grievor,in the context of the entire conversation, made that reference to threaten or upset Mr Hyland Considered as a whole, the meeting can be characterized as an employee gripe session. Mr Hyland allowed it to go on for some time When he became upset about something . ) 35 . the grievor said, he indicated as much and the grievor immediately changed the subject matter of the conversation That subject matter was, nevertheless, known to Mr Hyland and the evidence simply does not support the assertion that the grievor said or did anything at this meeting (othe( than indicate that he would again go off sick if assigned to work with Ms Campeau) that can be fairly characterized as a threat. This case is clearly distinguishable from those relied on by employer counsel in which ert;lployees unequivocally threatened some harm against others The final decision maker did not testify in this case, although he did participate in the pre-disciplinary meeting and was therefore in a position to gather relevant facts. There is no reason to believe that any relevant evidence has been missed, or that anyone has been prejudiced by the, failure of the author of the suspension letter to attend at these hearings and to identify that letter However, it is fair to say that we do not know exactly how the penalty imposed was arrived at. The evidence indicates that the meeting with Mr Hyland figured prominently in management's decision to impose a lengthy suspension Certainly, the grievor's threat to again withdraw his services if he was assigned to Ms. Campeau is deserving of sanction, and we find that he did make this threat. Some diSCiplinary response was called for in this case There are a few mitigating factors. The grievor does not have a lengthy record of service, but he is far from being a junior employee His work record is good, and this is the first time he has attracted disciplinary attention On the other hand, he did not tell the truth at the pre-disciplinary meeting and he has never apologized to Mr Hyland for his comments on October 17, 1993, although he was then, and continues to be, ~ 36 .!~ well aware of the effect on Mr Hyland of those remarks. - In consideration of all of these factors, we are of the view that the discipline imposed was excessive, as we declare that there was no basis for management to conclude that the grievor had threatened Mr Hyland or anyone else. The penalty imposed should, therefore, be reduced, and we find, in all the circumstances of this case, that the appropriate and just penalty for the grievor's act of insubordination on the afternoon of October 17, 1993 was a suspension of one 12-hour shift. A few final observations are in order Management, while aware of a real problem with respect to the division of labour in this workplace, has 'not taken any action with respect to it. Senior employees have no right, under the Collective Agreement, to "bucketize" junior employees. Management has the obligation, given the problems which can arise during the attempted exercise of that "right," as is illustrated by this case, to promulgate and enforce appropriate rules and policies with respect to job duties. As this case, considered in context, makes clear, such rules and policies are long overdue Accordingly, and for the foregoing reasons, the sick leave grievance is dismissed As we find that the grievor did not intend to threaten Mr Hyland, .and did not in fact do so, during their meeting on October 17, 1993, and as that threat was taken into account in the determination of the penalty imposed, we find that penalty excessive However, given the totality of the grievor's misconduct in this case, our remedy is limited toa declaration to this effect and a finding that the appropriate and just penalty for his misconduct on the afternoon of October 17, 1993 was a ~ 37 t/~ suspension of one 12-hour shift for a total suspension of four 12-hour shifts, or 48 hours. The grievor must, therefo!e, be compensated for three 12-hour shifts together with interest. We remain seized with respect to the implementation of this award DATED at Toronto this 12th day of January, tQQS r/'/v ----------- William Kaplan , J Vice-Chairper~, #. ~~~_ . :t.LV-C - James Memb I (Addendum Attached) Fred Collict Member - \