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HomeMy WebLinkAbout2007-0130.Union.08-04-25 Decision Commission de Crown Employees Grievance Settlement règlement des griefs 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# 2007-0130 Union# G-38-07-Policy IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN Amalgamated Transit Union - Local 1587 (Union Grievance) Union - and - The Crown in Right of Ontario (Greater Toronto Transit Authority - GO Transit) Employer BEFORE Nimal Dissanayake Vice-Chair FOR THE UNION Ian Fellows Green & Chercover Barristers and Solicitors FOR THE EMPLOYER Jason Hanson Osler, Hoskin & Harcourt LLP Barristers and Solicitors HEARING April 17, 2008. 2 Decision This policy grievance is brought by the Union challenging various aspects of the Employer?s Absenteeism Control Procedures HR-0302-04 (?the Policy?) and Innocent Absenteeism Guidelines (?the Guidelines?). At the hearing the union identified three issues: 1) That it is inappropriate for the employer to issue letters to employees after three absence incidents; 2) That in the event I should find it is appropriate to issue letters that the content ought to be modified; 3) That the policy failed to take into account individual circumstances of employees and that it required letters to be issued to persons who should not be issued such letters. The parties agreed that this hearing would be restricted to these issues and that other matters which might arise pursuant to the Policy could be addressed if necessary in other proceedings. General principles Arbitrators have long recognized that management has a legitimate and appropriate role to play in providing feedback to employees with respect to innocent absenteeism. Management may address innocent absenteeism by implementing absenteeism control procedures that do not conflict with the terms of the collective agreement. As recognized by arbitrator Adams in Re Denison Mines Ltd. and United Steelworkers (1983), 12 L.A.C. (3d) 274, it is entirely appropriate for management to communicate directly with employees, through either verbal or written means when an employee?s absenteeism becomes problematic. Such communications with employees ?even before a problem gets out of hand is an acceptable and reasonable employer response where an absenteeism problem is becoming evident? (Re Denison Mines,supra at 372). The purpose of letters such as those issued under the Employer's Policy is to advise employees of the costs associated with absenteeism, to seek an improvement in the employee's attendance, to offer assistance if possible to the employee, and finally, to caution the employee that there is a point at which an employee may be terminated for innocent absenteeism. Employers are also permitted to dismiss employees for innocent absenteeism. However, such a dismissal will be subject to the employee?s right to grieve under the normal grievance arbitration procedure set out in the collective agreement and the result will depend on a variety of factors which have been developed in the arbitral jurisprudence relating to innocent absenteeism and human rights. 3 It is important to emphasise three points: 1) That the letters which the Employer seeks to issue are non-disciplinary; 2) That such letters are not and should not be seen as a direction that an employee cannot be absent from work; and 3) That fairness requires that employers issue letters to put employees on notice that innocent absenteeism could result in the loss of employment. Re Falconbridge Nickel Mines Ltd. and Sudbury Mine, Mill and Smelter Workers' Union, Local 598 (1982), 4 L.A.C. (3d) 274 (Saltman) at pages 277-278 sets out the following principles regarding termination for innocent absenteeism and the requirement that an employer provide a non-disciplinary warning prior to such termination: ?In the first place, an employer is entitled to expect that its employees will attend work with some degree of regularity. That is not to say that employees can never be absent. Obviously, it is recognized that employees will be absent and that the employer must bear the loss for some amount of absenteeism. However, at some point, the loss due to absenteeism becomes excessive and the employer is no longer required to bear the loss. Indeed, when an employee's absences reach the point where the employee is unable to fulfil his employment obligations, the employer is entitled to consider the relationship at an end and to terminate the employee. In these circumstances, the termination is non-disciplinary in the sense that the employee is not being punished for misconduct. Rather, the employee is being terminated for failing to live up to his part of the bargain by rendering services on a regular basis: e.g., Re U.A.W. and Massey-Ferguson Ltd. (1969), 20 L.A.C. 370 (Weiler); Re United Rubber Workers and Seiberling Rubber Co. of Canada Ltd. (1969), 20 L.A.C. 267 (Weiler). Obviously, the employer can resort to this kind of non-disciplinary termination only where it is proven that the grievor's past record of absenteeism is excessive and that, in all probability, his attendance will not improve: e.g., Re Atlas Steels Co. and Canadian Steelworkers' Union, Atlas Division (1975), 8 L.A.C. (2d) 350 (Weatherill). However, the employer cannot terminate an employee on this basis without warning him first that his job is in jeopardy. Indeed, whatever his record of absenteeism, it simply would be unfair to terminate the employee without bringing to his attention the employer's concerns in this regard and giving the employee a chance to improve: Re Int'l Assoc. of Machinists, Lodge 1703 and Perfect Circle - Victor Division, VNG Auto Parts Ltd. (1972), 25 L.A.C. 380 (Weiler).? Several arbitral decisions have confirmed that where an employer issues letters to an employee which express concern over the employee?s level of absenteeism and indicate 4 that failure to improve attendance may lead to dismissal, such letters are generally not considered to be disciplinary in nature. In Re Oshawa (City) and C.U.P.E., Loc. 250 (Connor) (1996), 56 L.A.C. (4th) 335 (Brandt)arbitrator Brandt held at pg 247: ?It would thus appear from the case law that a counselling letter advising an employee of the concerns of the employer regarding excessive absenteeism and indicating that a failure to improve that record may result in discharge is not, in and of itself, disciplinary in nature. Indeed, it is regarded as a necessary prerequisite to the subsequent exercise of the right to terminate for innocent absenteeism where that is found to be necessary...? Findings With Respect to the Employer?s Absenteeism Policy I have reviewed the contents of the Employer's Policy and the accompanying Guidelines. Having done so and having regard to the submissions of the parties I make the following findings. The Employer is entitled to issue letters to employees as described in the general principles above. Subject to the comments below concerning individual circumstances, a "trigger" of four absence incidents to trigger the first letter does not violate the collective agreement and is permissible. With respect to the content of the letters the Employer has provided me with draft letters which are modified versions of the original letters the Union had grieved. I have concluded that these letters are appropriate non-disciplinary letters. I find it appropriate to define ?absence incident? in the Policy and Guidelines as ?an absence due to sickness or injury (excluding those covered by WSIB)?. The final issue is that of the exercise of discretion in individual circumstances. The Union's position is that the Policy and Guidelines appear to call for certain steps to be taken, i.e. the issuance of the first letter, without any regard to the individual circumstances of the employee. Employer counsel advised that it has always been the Employer's position that the appropriate Employees Relations Advisor had the authority to modify the application of the procedures to a particular employee based upon the medical information supplied to the Employer Relations Advisor by that employee. The existence of such discretion is entirely appropriate. Having reviewed the Policy and the Guidelines I note that the Policy provides: ?The Employee Relations Advisor responsible for accommodation matters (or such replacement designated by management) (?the Employee Relations 5 Advisor?) has discretion to modify the application of these procedures to a particular employee based upon the information supplied to the Employee Relations Advisor by that employee.? As such I do find that the Policy grants sufficient discretion on the part of the Employer, and that the Employer may elect to modify the application of Policy where it deems appropriate should an employee present individual circumstances to the Employee Relations Advisor or their designate. Accordingly, at any step in the Policy or Guidelines it is open for an individual to draw to the attention of the designated Employer representative any individual circumstances which may require the modification of the Employer?s procedures to that particular employee and that there is a discretion on the part of the Employer to make such modifications. It is not appropriate to set out a list of the types of situations where such discretion should be exercised. However, it is foreseeable that there may be circumstances where the mechanical application of the Policy without modification to a disabled employee, for instance, would not be appropriate. I find with respect to the issues raised by the Union in this matter that, subject to the terms of this award, the Employer is entitled to create and apply the Policy and Guidelines, the terms of which are reasonable and not in breach of the collective agreement. In the future, should the Employer wish to change any aspect of the Policy or Guidelines, (including, for example, the appropriate number of absences required to ?trigger? the letters) the Employer shall give the Union ninety days notice before doing so. The fact that the Union disagrees with a proposed change to the Policy or Guidelines or has filed a grievance with respect to a change to the Policy or Guidelines does not preclude the Employer from implementing the change, provided the Employer has given the Union ninety days notice prior to doing so. If the Union disagrees with the Employer?s changes, the Union may require the Employer to attend a mediation session. If the parties fail to reach a resolution through mediation, the Union may grieve the change to the Policy or Guidelines and the parties will resolve the issue through arbitration. The parties have agreed that any future mediation sessions or arbitrations relating to any changes to the Policy or Guidelines will be mediated/arbitrated by myself. I remain seized with respect to this grievance. 6 th Dated this 25 day of April, 2008 at Toronto, Ontario. Nimal Dissanayake Vice-Chairperson