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HomeMy WebLinkAbout2001-0973.Union Grievance.02-05-07 Decision ~~~ o@~o EA1PLOYES DE LA COURONNE _Wi iii~~~i~T DE L 'ONTARIO COMMISSION DE REGLEMENT "IIIl__1I'" BOARD DES GRIEFS Ontario 180 DUNDAS STREET WEST SUITE 600 TORONTO ON M5G 128 TELEPHONElTELEPHONE. (416) 326-1388 180 RUE DUNDAS OUEST BUREAU 600 TORONTO (ON) M5G 128 FACSIMILE/TELECOPIE. (416) 326-1396 GSB#0973/01 1420/01 1627/01 1674/01 UNION# 01UOn 01U094 02U002,02U004 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN Ontano PublIc ServIce Employees' Umon (Umon Gnevance) Grievor -and- The Crown In RIght of Ontano (Mimstry of CorrectIOnal ServIces) Employer BEFORE RandI H. Abramsky Vice-Chair FOR THE GRIEVOR Nelson Roland BarrIster and SOlICItor c/o Ryder Wnght Blair & Doyle FOR THE EMPLOYER Carol Ann Witt Counsel Legal ServIces Branch Management Board Secretanat HEARING February 25 2002 and March 7 2002 2 AWARD By order dated February 25 2002, the partIes were dIrected to argue "whether the umversal applIcatIOn of ArtIcle 44 10 as set out or referred to In the Apnl 5 2001 May 2, 2001 and August 28 2001 memos at the Toronto JaIl, vIOlates ArtIcle 44 10 of the collectIve agreement?" ArtIcle 44 10 provIdes as follows After five (5) days' absence caused by sIckness, no leave wIth pay shall be allowed unless a certIficate of a legally qualIfied medIcal practItIOner IS forwarded to the employee's manager certIfYIng that the employee IS unable to attend to hIS or her officIal dutIes NotwIthstandIng thIS provIsIOn, where It IS suspected that there may be an abuse of sIck leave, the employee's manager may reqUIre an employee to submIt a medIcal certIficate for a penod of absence ofless than five (5) days ArtIcle 44 10 applIes to classIfied employees An IdentIcal provIsIOn, In substance, applIes to unclassIfied employees In ArtIcle 31 8 Facts On Apnl 5 2001 Supenntendent Carl DeGrandIs Issued a memo to all staff regardIng sIck calls That memo states, In pertInent part, as follows (emphasIs In ongInal) MEMORANDUM TO All Staff FROM. Carol De GrandIs Supenntendent DATE Apnl 5 2001 RE SICK CALLS The amount of sIck calls from employees purportIng to be unable to attend to theIr dutIes has escalated to levels that can only be descnbed as alarmIng and, on ItS surface may constItute eIther a concerted collectIve 3 or IndIVIdual abuse of the sIck leave provIsIOns of the CollectIve Agreement. As such, I would remInd staff of ArtIcle 44 10 of the CollectIve Agreement that, In part, states "notwIthstandIng thIS provIsIOn where It IS suspected that there may be an abuse of sIck leave the employee's manager may reqUIre an employee to submIt a medIcal certIficate for a penod of absence of less than five days' WhIle there are many factors that may lead me to suspect an abuse of sIck credIts the sheer number of such calls on weekends, absence any apparent anomalIes, certaInly plants In my mInd the possIbIlIty or SuspIcIOn of abuse as Interpreted by ArtIcle 44 10 As such when these factors add up to SUSpICIOUS of abuse eIther IndIVIdually or collectIvely Managers and AdmInIstrators shall Invoke Management's nghts under the CollectIOn [SIC] Agreement to request a MedIcal CertIficate form a lIcensed MedIcal Doctor to the fact that the employee was examined on the day the sick call was made and that the employee was unable to attend to theIr dutIes due to Illness When an employee has been advIsed to produce a medIcate certIficate, pnor to theIr next scheduled ShIft, and he/she falls to do so the employee wIll be removed from the payroll for the date In questIOn. /s/ Carl De GrandIs The term "umversal applIcatIOn" In the Order of February 25 2002, refers to the applIcatIOn of ArtIcles 44 10 and 31 8 on a collectIve, rather than IndIVIdual, basIs - based on suspected group abuse of sIck leave rather than an IndIVIdual SuspIcIOn of abuse Under thIS approach, all employees at the Toronto JaIl, regardless of theIr IndIVIdual absence record, were reqUIred to provIde a medIcate certIficate for every sIck leave absence, or they would not be paid. The umversal applIcatIOn of ArtIcle 44 10 and 31 8 was also brought to the attentIOn of staff In a memo dated August 28 2001 whIch set out addItIOnal reqUIrements when an employee was unable to report to work, and further stated "Employees who are 4 absent from theIr scheduled tour of duty and who do not provIde notIficatIOn of theIr absence In the prescnbed method as noted above wIll not be paid." On August 31 2001 the Umon filed a gnevance allegIng a vIOlatIOn of the collectIve agreement and any related legIslatIOn "In regards to the restnctIOn and regulatIOn of sIck leave benefit and entItlement provIsIOns at the Toronto JaIl " The remedy sought was an order that the Employer has breached the collectIve agreement, a cease and desIst order and "[a]ny other remedy that the Board sees fit." The ongInal heanng date on thIS gnevance was scheduled for January 21 2002 On January 17 2002, the Employer Issued a memo to all staff that, effectIve January 1 2002, It had "ceased the practIce of requmng employees to provIde a medIcal certIficate for every sIck leave absence" The memo states as follows MEMORANDUM TO All Staff FROM. Carl DeGrandIs Supenntendent DATE 17 January 2002 RE SICK CALLS In calendar year 2001 the usage of sIck tIme was at such a rate that It resulted In an Increased number of requests for MedIcal CertIficates Many staff members obJected to the practIce and felt that a umversal approach was not fair and theIr nghts were beIng demed. ThIS wIll confirm that effectIve January 1 2002, management ceased the practIce of requmng employees to provIde a medIcal certIficate for every sIck leave absence 5 Management at the Toronto JaIl contInues to take the Issue of absenteeIsm very senously and In accordance wIth the CollectIve Agreement, wIll request a medIcal certIficate In cIrcumstances where It IS suspected that there may be an abuse of sIck leave WhIle we are altenng our approach, takIng Into account staff concerns, thIS should not be Interpreted as a dImImshIng or lack of determInatIOn to address the Issue of the abuse of the sIck leave provIsIOns of the CollectIve Agreement. /s/ Carl De GrandIs Supenntendent Positions of the Parties 1 The Employer Unexpectedly at the heanng In thIS matter on March 7 2002, counsel for the Employer acknowledged that ItS umversal applIcatIOn of ArtIcles 44 10 and 31 8 constItutes an InterpretatIOn that the collectIve agreement cannot reasonably bear It accepted that ItS InterpretatIOn and applIcatIOn vIOlated the collectIve agreement. Although the Employer had ceased ItS umversal applIcatIOn pnor to the first day of the heanng, and on January 21 2002, It agreed to contInue to cease that practIce "untIl GSB No 0973/01 IS decIded on the ments" thIS was the first tIme that the Employer had acknowledged that applYIng ArtIcles 44 10 and 31 8 on a umversal or group basIs, rather than on an IndIVIdual basIs, was an InterpretatIOn the collectIve agreement could not reasonably bear Counsel also stated that all employees who lost pay as a result of the polIcy were In the process of beIng reImbursed. With ItS admIssIOn, counsel for the Employer asserted that the matter was now moot and should be dIsmIssed. It submItted that there was no longer a "lIs" between the 6 partIes and that no useful labour relatIOns purpose would be served by a declaratIOn. In support, It cItes to Re Fording Coal Limited and United Steehwrkers of America, Local 7884 (2001) 95 LAC (4th) 78 (McDonald) OPSEU (Leach) and Ministry of Solicitor General and Correctional Services (2000), GSB No 1007/89 et al (FIsher) and Re Weiland County Roman Catholic Separate School Board and Ontario English Catholic Teachers Association (1992),30 L.AC (4th) 353 (Brunner) Counsel suggested that the declaratIOn would be pumtIve, partIcularly In lIght of the potentIal OPSEU stnke 2. The Union Counsel for the Umon was, to say the least, surpnsed by the Employer's admIssIOn and posItIOn on the ments of the Issue, as well as ItS statement that all employees who lost pay as a result of the polIcy were In the process of beIng reImbursed. It requested a lIst of all affected employees and the amounts paid to them Counsel for the Umon was not prepared to address a mootness argument, but contended that the Board should Issue a declaratIOn that the umversal applIcatIOn of ArtIcles 44 10 and 31 8 as applIed at the Toronto JaIl, vIOlated the collectIve agreement. Decision Counsel's admIssIOn, at the heanng, that the Employer's umversal applIcatIOn of ArtIcle 44 10 and 31 8 of the collectIve agreement constItuted an InterpretatIOn that the language could not reasonably bear was qUIte stunmng. It was also In my VIew qUIte correct. ArtIcle 44 10 states, In pertInent part "NotwIthstandIng thIS provIsIOn, where It IS suspected that there may be an abuse of sIck leave, the employee's manager may 7 reqUIre an employee to submIt a medIcal certIficate for a penod of absence of less than five (5) days" By Its terms, an IndIVIdual determInatIOn must be made that there "may be an abuse of sIck leave" Only In that case may "the employee s manager" reqUIre "an employee" to submIt a medIcal certIficate for a penod of absence of less than five (5) days" (EmphasIs added) Abuse of sIck leave IS a senous matter When large numbers of employees call In sIck at the same tIme It can create sIgmficant operatIOnal dIfficultIes, and lead, as It dId In thIS case, to a SuspIcIOn of abuse But ArtIcle 44 10 cannot be used to address that problem on a collectIve or group baSIS, as occurred at the Toronto JaIl By ItS terms, there must be IndIVIdual SuspIcIOn of abuse of sIck leave before a medIcal certIficate, for an absence of less than five days, may be reqUIred. I do not conclude that thIS Issue IS moot, or that a declaratIOn would serve no useful labour relatIOns purpose Although the Employer had ceased ItS umversal applIcatIOn of ArtIcles 44 10 and 31 8 at the Toronto JaIl on January 1 2002, It was not untIl the heanng on March 7 2002, that the Employer acknowledged that ItS practIce vIOlated the collectIve agreement or announced that affected employees were In the process of beIng reImbursed. As of the date of the heanng, March 7 2002, the Issue of compensatIOn had not been fully resolved. ThIS fact dIstIngUIshes the cases cIted by the Employer 8 In contrast to the sItuatIOn In Re Weiland County Roman Catholic Separate School Board and Ontario English Catholic Teachers Association, supra, there IS no eVIdence that the Umon's purpose In seekIng a declaratIOn IS to score a debatIng pOInt or to Influence collectIve bargaInIng. Although the tensIOns between the partIes are substantIally hIgher at thIS tIme, the Issue IS an Important one of contract InterpretatIOn whIch affected a sIgmficant number of employees AccordIngly I declare that the umversal applIcatIOn of ArtIcles 44 10 and 31 8 as applIed at the Toronto JaIl from Apnl 5 2001 untIl December 31 2001 vIOlated the collectIve agreement. Employees who were demed sIck leave credIts as a result of the umversal applIcatIOn of ArtIcles 44 10 and 31 8 should be reImbursed. I shall remaIn seIzed. Dated at Toronto thIS ih day of May 2002 {-/, cf:hnrrtElc RandI H. Abramsky Vice-Chair