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HomeMy WebLinkAbout2007-2737.Duffy et al.08-01-17 Decision Commission de Crown Employees Grievance règlement des griefs Settlement Board des employés de la Couronne Suite 600 Bureau 600 180 Dundas St. West 180, rue Dundas Ouest Toronto, Ontario M5G 1Z8 Toronto (Ontario) M5G 1Z8 Tel. (416) 326-1388 Tél. : (416) 326-1388 Fax (416) 326-1396 Téléc. : (416) 326-1396 GSB# 2007-2737, 2007-2738, 2007-2739, 2007-2740, 2007-2741, 2007-2742, 2007-2743, 2007-2744, 2007-2745, 2007-2746, 2007-2747, 2007-2748, 2007-2749, 2007-2750, 2007-2751, 2007-2752, 2007-2753, 2007-2754, 2007-2755, 2007-2756, 2007-2757, 2007-2758, 2007-2759, 2007-2760, 2007-2761, 2007-2762, 2007-2763, 2007-2764, 2007-2765 UNION# 2007-0517-0142, 2007-0517-0143, 2007-0517-0144, 2007-0517-0145, 2007-0517-0146, 2007-0517-0147, 2007-0517-0148, 2007-0517-0149, 2007-0517-0150, 2007-0517-0151, 2007-0517-0152, 2007-0517-0153, 2007-0517-0154, 2007-0517-0155, 2007-0517-0156, 2007-0517-0157, 2007-0517-0158, 2007-0517-0159, 2007-0517-0160, 2007-0517-0161, 2007-0517-0162, 2007-0517-0163, 2007-0517-0164, 2007-0517-0165, 2007-0517-0166, 2007-0517-0167, 2007-0517-0168, 2007-0517-0169, 2007-0517-0170 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN Ontario Public Service Employees Union (Duffyet al.) Union - and - The Crown in Right of Ontario (Ministry of Community Safety and Correctional Services) Employer BEFOREVice-Chair M. Brian Keller FOR THE UNION Gavin Leeb Barrister and Solicitor FOR THE EMPLOYER Sean Kearney Senior Counsel Ministry of Government and Consumer Services HEARING January 14, 2008. 2 Decision Following the Thanksgiving weekend in 2007, the employer required all those who claimed sick leave on the Friday, Saturday or Sunday to produce a medical certificate justifying their claim. The requests were made by the Superintendents in each institution. The union grieved, alleging this ?blanket? requirement violates article 44.10 of the collective agreement. ?44.10 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 period of absence of less than five (5) days.? The parties filed an Agreed Statement of Facts: AGREED STATEMENT OF FACTS ? In order to expedite the hearing of this grievance, the Ontario Public Service Employees Union (?OPSEU?) and the Ministry of Community Safety and Correctional Services (the ?Employer?) have agreed to the following ?Agreed Statement of Facts?. 1. The grievances arise from events that transpired on Friday, October 5 to Monday, October 8, 2007 (i.e., The Thanksgiving weekend). 2. With respect to the Thanksgiving weekend the Employer became concerned regarding the rate of absenteeism due to staff calling in sick at the Toronto Jail, the Toronto West Detention Centre (?TWDC?) and the Toronto East Detention Centre (?TEDC?). The staff included Correctional Officers (?CO?s?) and Operational Managers (?OM?s?). 3. The rates of absenteeism based on sickness over that Thanksgiving weekend can be broken down by institution as follows: a. Toronto Jail 27 i Friday, October 5, 2007, staff called in sick. 23 Ii Saturday, October 6, 2007, staff called in sick. 21 iii Sunday, October 7, 2007, staff called in sick. iv On Monday, October 8, which was a statutory holiday which attracts premium 0 pay staff called in sick that day. 3 b. TWDC 31 i Friday, October 5, 2007, staff called in sick. 27 ii Saturday, October 6, 2007, staff called in sick. 40 iii Sunday, October 7, 2007, staff called in sick. iv On Monday, October 8, which was a statutory holiday which attracts 3 premium pay staff called in sick that day. c.TEDC 30 i Friday, October 5, 2007, staff called in sick. 22 ii Saturday, October 6, 2007, staff called in sick. 33 iii Sunday, October 7, 2007, staff called in sick. iv On Monday, October 8, which was a statutory holiday which attracts 1 premium pay staff called in sick that day. 4. As a result, on Thursday, October 11, 2007, the Employer wrote letters to all CO?s and OM?s at the three institutions who had been absent on the basis of sickness on October 5, 6 and/or 7, 2007, to supply a medical certificate to substantiate their illness. The letters have identical language and copies of same are attached as Appendix A. The majority of letters would have been received by recipients within one week of October 11, 2007. 5. At the Toronto Jail a total of 63 employees were required to submit medical notes and 18 complied and therefore received sick-pay. At the TWDC 51 employees were required to submit medical notes and 32 complied and therefore received sick-pay. At the TEDC 50 employees were required to submit medical notes and 30 complied and therefore received sick-pay. 6. These grievances concern the Employer?s ability to request medical certificates from a large number of employees in the circumstances described above.? No additional evidence was adduced by either party. The union made the following arguments: 1. The wording of article 44 in general, and article 44.10 specifically, shows that the parties intended that the requirement to produce a medical certificate applies to individual employees. The determination can not be made in an across-the-board fashion. Individual considerations are paramount and the request must be made by individual managers. 4 2. The matter was decided by Vice-Chair Abramsky in Re De Grandis 973/01. In that case the Vice-Chair found that blanket requirements violated article 44.10. ?Counsel?s admission, at the hearing, that the Employer?s universal application of Article 44.10 and 31.8 of the collective agreement constituted an interpretation that the language could not reasonably bear was quite stunning. 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 require an employee to submit a medical certificate for a period 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 period of absence of less than five (5) days.? (Emphasis added). Abuse of sick leave is a serious matter. When large numbers of employees call in sick at the same time, it can create significant 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.? 3. In Re Blake 1267/87, Owen Shime, the then Chairmen of the GSB, held that for reasons of sound labour relations, previous GSB decisions should be followed unless there were extraordinary reasons not to do so. ?Thus each decision by a panel becomes a decision of the Board and in our opinion the standard of manifest error which is appropriate for the private sector is not appropriate for the Grievance Settlement Board. The Act does not give one panel the right to overrule another panel or to sit on appeal on the decisions of an earlier panel. Also, given the volume of cases that are currently administered by this board, the continuous attempts to persuade one panel that another panel was in error only encourages a multiplicity of proceedings and arbitrator shopping which in turn creates undue administrative difficulties in handling the case load.? 4. Issue estoppel applies as the parties are the same, the issue is the same and the decision was final. 5. The employer, who wishes to rely on the exception in article 44.10, has the onus to prove they come within that exception. 5 The employer made the following arguments: 1. Re De Grandis is distinguishable and, therefore, the principle in Re Blake does not apply. 2. Contrary to the decision in Re Blake, the decision in Re Fogal et al 1999-0413 (Briggs), supports the employer?s position. 3. A reasonable approach to the interpretation of article 44.10 must be taken. The employer acted reasonably on its suspicions and no one was disciplined. 4. Article 44 in general, and 44.10 specifically, does not apply only to individuals. There are no restrictions as to the number of requests that can be made simultaneously. 5. The employer acknowledged that some ?innocent? employees may have been caught up in its sweep, but that is unavoidable, and to do otherwise would handcuff the employer. 6. In two cases emanating from the Public Service Staff Relations Board (1994 C.P.S.S.R.B. No. 24 Tenace) and (1994 C.P.S.S.R.B. No. 25 Tenace), and one from th Alberta (1992) 26 L.A.C. (4) 327 (Koshman), the principle was established that the employer had the right to ask employees to justify absences where there was a concerted work stoppage. DECISION After carefully reviewing Re De Grandis and Re Fogal, I conclude that neither creates a situation where Re Blake applies. In Re De Grandis, the factual situation was different. A blanket policy, covering all days and circumstances, was promulgated by the employer. At the hearing, the employer acknowledged that those circumstances could not bear scrutiny. Vice-Chair Abramsky then went on and made the finding she did. Importantly, she did so, apparently, without the benefit of legal argument, and certainly without the type of canvassing of the issue that was done in the instant case. As the factual situation was different, I cannot conclude that issue estoppel applies. 6 The issue in Re Fogal was different. Vice-Chair Briggs did not specifically adopt the principle that a blanket request for a medical certificate is permitted under section 44.10. Rather the issue, which took a significant number of days to hear, was whether medical notes provided by employees were legitimate or not. Absent a finding on the issue of principle raised by the instant grievances, I do not find that Re Blake applies. I am satisfied that a reading of articles 44.6 to 44.11, inclusive, bears out the union?s argument that the parties designed a code that was to apply to employees on an individual basis. I view article 44.10, and particularly the use of the word ?employee?s?, as referring to employees individually. If there was to be a collective meaning ascribed to the term, the word, as counsel for the union pointed out, would have read differently. Therefore, as a matter of contract interpretation, I must reach the conclusion that the parties drafted article 44.10 to apply on an individual case basis. Having said that, however, the employer is not without recourse. I am of the view that the cases tabled by the employer from the PSSRB and Alberta are relevant and good law. It is trite law that an employer has the right to manage its workplace and may do so providing its actions are not unlawful, or do not violate the collective agreement. In other words, an employer may act unless there is a fettering of its authority. The employer has the right to protect itself against concerted activity by its employees that affect the work place. It has to have some means to assure itself, where it suspects such concerted activity, that the actions of employees are legitimate. That principle is also explicit in Re Fogarty. There is, therefore, a balancing that has to be done between the restriction on the employer to ask for medical certificates in individual cases only, and its right to take steps in the face of what it considers concerted activity by employees. Thus, the latter circumstance is an exception to article 44.10. This does not provide carte blanche to the employer to request, in a blanket fashion, medical notes when a number of employees book off sick. It will, necessarily, have the burden to prove the concerted action. It will then have the right to seek notes on other than an individual basis. 7 In the instant case, the employer is effectively arguing that it was such a circumstance that caused it to act as it did. The evidence, it argues, is clear and demonstrated at paragraph 3 in the Agreed Statement of Facts. While I readily acknowledge that the contents of paragraph 3 create suspicion in my mind, I am not prepared to accept that it was concerted activity. I have no base line to compare the absences, for example, against other holiday weekends, or any weekends for that matter. In the absence of more cogent proof, I conclude that, while suspicious, I cannot find, based on the evidence, that the employer has met its evidentiary burden and I must conclude that the grievances succeed. To conclude: 1. Article 44.10, as drafted, applies on an individual basis. 2. The employer may, in the face of concerted activity, seek medical certificates on other than an individual basis. 3. The employer has not met its evidentiary burden. 4. The grievances succeed. 5. The matter is remitted back to the parties at their request. th Dated at Toronto this 17 day of January 2008 M.B. Keller Vice-Chair