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HomeMy WebLinkAbout1993-1905.Potts.95-10-23 ",j ONTARIO EMPLOYES DE LA COURONNE 'V~ "'- CROWN EMPLOYEES DE L'ONTARfO ,') \ \ ':.\ .~, j\b GRIEVANCE CpMMISSION DE ~(/> {' v "V\ 1111 SETtLEMENT REGLEMENT .' . . '\C!~ 'V\ BOARD DES GRIEFS y\\J>\ 'y\,li 180 DUNDAS STREET WEST SUITE 2100, TORONTO ONTARIO M5G lZ8 , . rl TELEPHONE/TELEPHONE (416) 326-/388 r-'-~---"of6O,..-RI.I" nllfoJ06S...Q~T, BUREAU 2100, TORONTO (ONTARIO) M5G 1 Z8 FACSIMILE /TELECOPIE (416) 326- 1396 IJ~~E E: ,V ' '-,'- -,' v ! r GSB# 1905/93 <: - ~ OCT 2 3 1995 J OPSEU .# ,.?13.;E7 3 8 '" ~ -t' I -,P0jjLiC, S~h\'JCf: ,v ..: .. , "./ ,.. . . . APPEAL BOARDS IN THE MATTER OF AN ARBITRATION ~ Under THE CRowN EMPLOYEES 'COLLECTIVE BARGAINING ACT ~ Before - THE GRIEVANCE SETTLEMENT BOARD BETWEEN OPSEU (Potts) _. - Grievor - and - ... The Crown ih Right of Ontario (Ministry o~ H~alth) \. .. Employer BEFORE W Kaplan Vice-Chairpersqn - FOR THE r -' M Keys GRIEVOR Grievance. OfftGe~ ,- Ontario 'PublicService Employees Union 1 FOR THE M Nixon EMPLOYER ~Counsel Lega~ Servic~s Br~nch Management Board Secretariat ~ HEARING October 13, 1995 , t. }\:I ( 2 ~ /' Introduction I I This case concerns the September ~O, 1993 grievance of Mr David Potts, a \ - - Commt,lnlcation Officer employed by the Ontario Ministry of Health in London, Ontario The case proceeded to a hearing in Toronto at which time evidence and argument were heard In brief, the union takes the position that~the employer violated Article 52 1 (ij) of the Collective Agreement when it failed., to pay the grievot. sick pay for his absence from work on a scheduled night shift on September 2, 1993 The. employer takes the position /that there was .no Collective Agreement breach as the grievor was not sick on the day in question The Evidence .., The grievor testified on his own behalf Another bargaining unit employee, Ms. Kim Charlebois, testified, under subpoena, for management, as {did Mr ., P A Bergsma, the Manager of the bUice in which the grievor worked r The grievor has worked for the Ministry since 1986, and described some - difficulties which he has had over the years with another employee, Mr Paul Taylor Both the grievqrand Mr Taylor ate ambulance dispatchers. To make a long story short, Mr Taylor has advised management about certain of the grievor's activities, following which the grievpr has been disciplined , In these circumst~nces, the ~rievor h-~d little desire to work alone with Mr Taylor, which was required, from time to time, on the night shift. Schedules at the London office are posted several weeks in advance However, as they are prepared one year in advance, employees can, and often do, inquire about their -long-term schedules In mid-July 1993, the grievor was complaining about Mr Taylor, and, in front of several people including ..,.. '-- 3 ~ l' Ms Charlebois, one of the employees responsible for preparing the schedule, stated that if~e wa~ assigned to work with Mr Taylor he would. book off , , f) .J. sic~. The gri.evor t~stifled that he did no~ intend t,his remark to be taken - " - -. "1_ seriously; he w~s just blowing off ste~m anq wou!d often make statements I I t ~ t '- of this 'kinp. even though h~ had no intention of following t.h~~ug.h -, $- ... Accordi!,g to thegrievor, ~tter'11aking this remark he forgot all about it. , - ~ 0 _ ' _ Then, .quite coi.r:'Gid~ntally,: he happened to become sick the next time he was \.. 1 <;," scheduled to work with fMr Taylor - on S~ptember 2, 1993 Although the I grievor cQuld not re.call the exact nature of his illness - he testified that as I 4 a result of a. nlJmber of ch.ronic problems he was frequently away - he I insisted th~, illness. was genuine and W~$ quite surprised to learn that I management h_Cld. decided not I~O pay him ~is sick pa},l, The grievor did not I attend at a doctor's," office on ,$eptembE!r 2n9 as the illness, whatever it I Was, was not so Se(iq!Jsa~- to require mediccal attention I ~ ~ ' -~~ - In cross-examination,. it was ~stablished th~t_ once, two years earlier, the- ~ - grievor had booked off sick rather than work with a manager he did not respect. He wa.s denied si~k .B9Y for th~ (jay in qu~stioD It was also \. ")' ..... - established that the grieyor bad I1Qt beeryl ~ntir~ly ,forthright in his , , _examination-in-chief He testified, for instance, about an event he called ;1-..... { __ th~ "k~y caper" The d~tails o~. this event need not concern us. Suffice it to ~ v say that in examinatiqn-in-chief, the grievor minimized quite significantly ) the seriousness of this incident.. IQ addition,. the grievor did not, as he , ~ . initially testified, ,only r~ceive a counsellif,lg ,Iett~r He received a suspension and was required to pay the cost ~of rekeying the facility I , Moreover, it Vv'aS also established that the grievor worked without incident '- \ ) or complaint on his scheduled shifts prior to September 2, 1993, and J ) I 4 worked overtime soon after missing that shift. \ While the grievor testified that he forgot all about his threat not to work if 'I scheduled with Mr Taylor, Ms Charlebois did' not forget Indeed, when the I grievor made" the threat she reviewed the schedule, informed the grievor as to when he Was next scheduled to work With Mr Taylor, 'and' advised him to make alternative arrangements. In his evidence, however, the grievor denied that he was told by Ms. Charlebois wHen he was next scheduled to work with Mr Taylor, although he agreed that it was possible that she had suggested to him that he make a shift change Employees frequently switch shifts, use lieu days and s6 on, and management is, according t6 Ms. , Charlebois, very flexible hi assistih~ employees in obtaining the shifts they wish. Ms. Charlebois also wrote a note on her diary for'September 2, 1993 describing fler mid-July conversation' with the grl'evor,and the suggestions " that she made When she learned that the grievor had not made a shift , change, but. had, as threatened, .called in sick, she informed her manager Mr Bergsma According to Ms. Charlebois, she would not have said anything to. management about" the grievor's threat if he had' not followed through on it. - When Mr Bergsma learned that the grievor had made cmd then followed up on this threat, he determined that th~ grievor was not, on Septemoer 2, 1993, "unable to attend to his duties due to sickness or injury .'i Accordingly, he denied the griEwor sick pay Some mEfmoranda were exchanged - the grievor ~ testified\ that he thought that he was being denied his siCK pay because of an administrative foul-up surrounding the use of his vacation/overtime credits to top up his'sick benefits. When Mr Bergsma and the grievor met "- to diSCUSS the matter -on September 29, 1993, Mr Bergsma asked the grievorifhe ever said that he would not work with Mr Taylor,and the -:--; -. --~-----~--- - - --- --- J' oi 5 ~ grievor said that 'he had not. When .the grievorwas asked about this incident he -te;stifled that he hadforgotte'n about the July conversation and - thought,jnl:any event, that Mr Bergsmais question was more focused in time and was referring to the -period immediately pri'or to -September 2nd I _ . _.~ According to Mr Bergsma, it is often difficult to fill shifts when employees , . r call in sick, and this can create both operational and trnanciaf difficulties . - l I, - . _ _ ~ ~t'" It was suggested to Mr Bergsma in cross-examination that the-grievor was the typd'of person whb owned u-p to his mistakes, and the example of the "key ca~r" was given in support of that suggestion. ~ It is true enough that the grievor confe~se'd 'his involvement in that matter However, Mr Bergsma found the circumstances of that co-nfession highly suspicious as not only r ,- . . . '. ~ i did the confession take place some months after the actual event, but it took place the day' after Mr Taylor informed on the grievor to management. Mr Bergsma did not ask the grievor to produce a medical certificate for his / September 2nd 'illness and testified that he would not, in the circumstances '\ , of this case, have accepted one even if one had been produced ~ The eVidence having been completed, the matter turned to argument. ~Union Argument . In the union's submission, the evidence established that the grievor was a person wno owned up to his mistakes, and while he had once called in sick in order to avoid working with a manager, this did not mean that he had \ done it again, and what evidence there was suggested that he had learned \ from this earlier eVent. Moreover, counsel -noted that the grievor had i . , absolutely no reason to call in sick unless he 'was actually sick given the ease with which employees could make shift changes -- 6 ~ In the Union's subml~sion, it wa? true enough that th~ gnevor h~d made -some iII-consic;f~red remarks in July 1993, but ,_the, fact of the, matter was th~t the grie.vornever IOte~deq to follow t~rough It would have made no sense for the grievor to l11ak~ ~omments of this kind in front of several employees, including ~he employee in ch~rge of. scheduling, and then to follow ~hrough by):>.poklng off sick. The only thing that made sense, in the union's view, was that the grievor was actually sick on September 2nd The fact .th.at: the grievpr J:J,.~Ii~ved .after September 2nd ~hat the problem with ~. / his. pay J;lad to do with th~ tqp-uPl was further evidence that his illness was genuine The fa,ct that he could not recall the nature of hi~ illness on \ September 2, 199,3 was hardly extraordinary, given that the grievor ; suffered from a numberot, ~lIpE!sses, andgiY:en ~he passage of ~ime In that the grievor; in his own evidence, )lad esta~lished he was sick, the employer had, in the ,uniqn's view, little discretion about paying him. < Counsel noted that had the employer wished to challenge the grievor's illness it could have done ~Q pursuant to Arttcle 52 10 - and done so when - the grievor would have 'had an opportunity to attend at his physician's office and obtain appropriate. .medical documenta~ion_. It was hardly fair, in the ~; union's submission, for the employer to simply categorically reject the grievor's sick claim because of the coincidental timing of that claim, and to do so. in a manner, namely sorpe time after the c1~im was first made, that " left the grievo~ w.ith little opportunity to prove the veracit:y of his illness Indeed, the uni9n,..as~erted th~t the denial of sick pay was disciplinary, and that the employer was -therefore required to pr9veit had just cause for denying the grievor this benefJt. Anum~er of cases were Gited in support of this submission Whatever could be said about the evidence in this case, . . .' . . 7 t:\ · . , it did not, in counsel's view, meet the standard of just cause, and this was ~ . , ,- ~ -~ a~other reason why the union took the position that the g~rievance should be .; ~ _ : .... ~f ", 1 allowed While there were some conflicts in the evidenc~, the\inion took -' - the position that they'could be explained 'by the 'lapse ,of time and'the 1 _" :, ~, failure of memory They certainly were not the result of any intention to ... t ?': ~....... t- - deceive' Counsel asked that all records of this event be expunged from th,e '-<- ,t '\. grievor's file and that he be compensated, together with interest, for the 1 _ '" _ _. j."',~r '""~ loss of one day's sick pay Counsel also asked that I remain seized with o i respect to the implementation of my award t - . I l Employer Argument . \ In couns.el's -submission, there was no reliable evidence establishing that ..-" ....... '1:"- the grievor was ill on September 2, 1993, and all the evidence, in fact, was _ r ) _ I to the opposite effect. Counsel reviewed the chronology of events, and after doing so suggested that there could be little doubt but that the grievor called in sick in order-to avoid working with Mr Taylor It was extraordinary, counsel suggested, that the grievor could be so ill that he - f _ c~uld not 90 his job, yet could not recall what it was that ailed him Indeed, in the employer's submission, the grievor was not a credible- witness. His' evidence in these proceedings was contradictory, and there was no reason \ to accept the union's assertion that the" griever was the type of person who frankly admitted and accepteCf when he had done something wrong Counset reviewed some examples on point, and suggested that all the evidence was to the opposite effect. The employer also took the position that this case was not, as the union \. asserted, about discipline Rather it was about the employer denying the grievor a benefit which he was not entitled to under the Collective 8 'e ~ Agreement. To be entitled to that benefit an employee must, because of , .. Illness or injury, be unable to perform the du,ties of his or her position, and ; , coun~el reviewed a number of cases in support of these submissions There { I l'l i. 1 -.. __' was simply no evidence that the grievor was ill, or injured What evidence .H !I t " there Vfas proved that the grievor booked off sick to avoid working with another employee, and did ~o {even when he was specifically advjsed not to, or to switch shif~s. In then denying sick pay, the employer did not act .; " ..> 1 unreasonably or arb.itrarily Rather it took steps to ensure that the t~ .. ~ l"'~ .,.. grievor's abuse of the sick pay provision was not allowed Accordingly, . ~ .r ." counsel asked that the grievance be dismissed Decision ,. Having carefully considered the evidence and argument ot' the parties, I have i . ~ ~ come to the conclusion that this grievance must be dismissed . Lik~ the employer, I find that thegrievor was not, as he testified, ill on , {,~ September 2, 1993 Rather, the 9rievor, as he had earlier threatened, called - in sick in order to avoid working with -another employee In making this finding, it was necessary to draw s'ome conclusions about credibility In that regard, it .only need be noted that the grievor's testimony in these proceedings wa~ not entirely forthright. Moreover, (where there was a " confli~t in his evidence, and that pf the other witnesses, I prefer the evider'lce of the other witnesses Ms. Charlebois, a bargaining unit member i testifying under subpoena, had no reason to lie, and I find, i'I,. any event that she was telling the truth about the nature of her mid-July discussions with the grievor and about the sound aovice she gave him in response to his I C threat. The grievor's claim, in another example, that he thought Mr Bergsma's questions were focused on the events surrounding September ., ~. o tji; I 9 2nd, is not t;>elievable The fact that he could not recall the nature of his J ":.:$"'- ,. . , I i!lness is also _,suspect. For all of these reasons, I find that the grievor was _ _ ' ~"'\.1 to -, not sick on September 2nd, and conclude therefore that the grievance must , ,\ ! fail Any doubt about the propriety of this result is confirmed when the -' grievqr's similar past practice is examined \ I '\ i - " . .l r Furthermore, there is no evidence in this particular case that the denial of J - I sick pay was disciplin~ry As such, the onus was on the J grievor to establish ...... that he had been denied sick pay b~nefits in contravention of the Collective Agreement~ As notE;d above, I find no Collective Agreement breach ... ~ r - ~ ~ r. ;, ~ \ _ To be sure, in many cases of this kind, discipline accompanies the denial of , - ~~ sick ,pay However, in thi~ cas~, t!1e d~rial decision was simply the administrative rej~ction pf the. application for a benefit on the basis that the grievor did not meet the Collective Agreement preconditions for receipt of that benefit. The employer is entitl~d to request employees to produce - J doctor's letters where the veracity of an illness is questioned The - provision entitling the employer 'to make thi~request. i5not, however, mandatory And there is nothing stopping an employer from not making that 1 -- request if it has reason to believe that little purpose would be served in doing so, such as in those cases, like this one, where the application for the benefit is clearly bogus While Mr BerQsma testified that he would not have accepted a doctor's letter in any case, that obviously cannot be a hard and fast rule There will be some cases, although this is not one, where the circumstances of an illness may be suspicious but where those suspicions are allayed by the production of proper medical documentation Moreover, there will be some cases, most in fact, where the employer must rely on the good faith of the employee and accept the employee's claim that he or 10 ........->. ?-- ~ she was unable because of sickness or injury to attend to his or -her duties The provisions of the Collective Agreement, it should" be noted, do not require employees to produce medical certificates for short-term absences \ caused QY sickness , , i . As noted in Ulicny 962/93, in the same way that the Board has held that management is subject to a duty of reasonableness in the administration of ,I the CollectIve Agreement, employe~s, where they have a discretion, are ~, -.J subject to a similar duty 'And this means only claiming the benefit of the ~ " sick leave provisions of the Collective Agreement when they are truly sick and unable to -work. For the reasons earlier given, I cannot find that it was illness that precluded the grievor's attendance at work on September 2nd -- ,.. All of the facts have to be examined, and' when they are the evidence is I clear and overwhelming that it was the grievor'S refusal to work with Mr Taylor that led '~to his absence, not illness or injury - ~~ Accordingly, and for the foregoing reasons, t~e .grievance is dismissed - ~ DATED 'at Toronto this 23rd day of October 1995 /1/ ! _ / ." '- ~ ~----------_....._--- Willram Kaplan Vice-:Cha irpe rso.n \ - ~ i I - 'j , ~ L__ _ -