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HomeMy WebLinkAboutRathwell, Williams, Boyer 10-01-30 6/3 1q-t 3o?!t In the matter of an Arbitration Between: Ontario Public Service Employees Union (Local 439) (the "union") And Brockville Mental Health Centre (the "employer") or (the "BMHC") Individual grievances of Brent Rathwell, Rose Williams and David Boye.. Al'bitrator: Jules B. Bloch Appearances: Union: Peggy E. Smith, Counsel; Laurie Brown, O.P.S.E.U Rep; David McDougall, Local President; Kevin C. Hudson; Acting Vice President; David Boyer, Grievor; Rose Williams, Grievor; Brent RathweIl, Grievor. Employer: Caroline Richard, Counsel; Shannon Moulton, Labour Relations Consultant; Laura MilIichamp, Labour Relations Analyst. This Arbitration Was Heard in Brockville on the 8lh of January, 2010, ZOO~ 30IddO MV1 HIINS lOI13 tZ9L+gt9+~19 XVd 6t:60 ilHl 01/11/Z0 In the matter of an Arbitration Between: Ontario Public Service Empolyees Union (Local 439) (the "union") And llrockville Mental Health Centre (the "employer") or (the "BMHC") Individual grievances of Brent Rathwell, Rose Williams and David Boyer 1. I have before me three individual grievances involving the same issue. The parties agree that I have jurisdiction to entertain the grievances. In short, the parties request that I determine whether the on-call pay provisions of the collective agreement (article 19:02), apply when Manulife, as agent for the employer, calls the grievors at their homes to discuss the "At Work" program. 2. The parties have agreed to a statement of facts, which is provided below. Further the parties have tendered a number of exhibits, which form part of the evidence in this case. Finally, the parties were given an opportunity to provide full submissions and answer or respond to all my questions and clari.fications. coo lei 3JlddO MY! H1IWS 10113 vZ9L+SvS+C19 XVd OS:60 ilH1 01/11/Z0 AGREED STATEMENT 0 FACTS 1. These grievances are brought by three grievors: a. Brent Rathwell is employed by the Royal ttawa Health Care Group ("ROHCG") at the Brockville Mental Health Centre Sit ('IBMHC"). His classification is Electrician. He has been employed with th ROHCG since 1988. b. Rose Williams is employed by the ROHC at the BMHC Site. Her classification is Secretary. She has been employed with t~e ROHCG since April 24, 2001. c. David Boyer is employed by the ROHCO Jt the BMHC Site. His classification is Plumber. He has been employed with the RlOHCG since 1997. 2. At the time of the grievances, the grievors were colered by the Collective Agreement between Ontario Public Service Employees Union on behalf of its Local 439 and the Brockville Mental Health Centre (Member ofthe OHCG) for the Service, Office and Clerical Unit that expires on March 31, 20 I O. 3. At the time of the grievances, Mark McMurter walthe Manager for the three grievors. "At Work" Program 4. The ROHCG developed the ROHCG Corporate" t Work" Program in order to replace the BMHC and ROHCG Attendance Management Programs. 5. Pursuant to the "At Work" Program, managers ar required to take the following steps once an employee reached the threshold: a. after the 5th random or consecutive schedu ed work day of absence due to illness or injury, schedule a meeting with the emp oyee; b. once an employee has reached beyond 10 ays of random or consecutive scheduled work day of absence due to illnrl ss or injtlry, contact Manulife to initiate the Early Intervention Process; c. for every subsequent sick leave absence bond the lO[h day, contact Manulife who will follow-up with the Early Intervention Process. 6. The "At Work" Program became effective on Ma 1,2008. On April 28, 2008, an information session was held for all employees at e BMHC Site. 7. During this infomlation. session, the employees w re advised that as part of the UAt Work" Program, following absences beyond the 1b[h day, they would receive a call from Manulife' 5 Disability Case Manager to discuss th~ Program. 2 J7001e1 3~IddO MV1 H~INS ~OI13 J7Z9L+SJ79+CT9 XVd 09:60 nH~ OT/TT/ZO 8. On February 6t 2009, the ROHeO distributed via e-mail two documents, "I-low Does the Program Work" and "At Work Program - Employee Responsibilities" to employees at the BMHC Site. Brent Rathwell 9. For the calendar year 2008 ending on December 31, 2008, Brent Rathwell was absent 011 the following days: a. Friday, January 18 for a peliod of 8 hours; b. MondaYt January 21 for a period of 8 hours; c. Monday, June 9 for a period of 8 hours; d. Tuesday, June 10 for a period of 8 hours; e. Wednesday, June 11 for a period of 8 hours; f, Thursday, July 10 for a period of 8 how's; g. Friday July 11 for a period of 8 hours; h. Monday August 25 for a period of 8 hours; i. Tuesday, September 9 for a period of 3 hours; J . Wednesday, September 10 for a period of 8 hours; k. Thursday, September 11 for a period of8 hours; 1. Friday, September 12 for a period of8 hours; m. Monday, September 15 for a period of8 hours; n. Tuesday, September 16 for a period of 8 hours; o. Wednesday, September 17 for a period of 8 hours; p. Thursday, September 18 for a period of 8 hours; q, Friday, September 19 for a period of 8 hours; r. Monday, September 22 for a period of 8 hours; s. Tuesday, September 23 for a period of 8 hours; t. Wednesday, September 24 for a period of 8 hours; 3 SOO~ 3J1ddO MV1 H1INS 10113 vZ9L+SvS+CT9 XVd OS:60 ilH1 OT/TT/ZO u. Thursday, September 25 for a period of 8 hours; v. Friday, September 26 for a period of 8 hours; w. Monday, September 29 for a period of 8 hours. 10. On July 11, 2008, Brent Rathwell had reached five (5) days of absence due to illness. 11. On September 4, 2008, Mark McMurter met with him at work during paid time in accordance with the" At Work" Program to discuss his absence. A union representative was present. 12. On September 12,2008, Mr. Rathwell had reached 9.5 days of absence and on September 15,2008, he had reached 10.5 days of absence since the implementation of the "At Work" Program. 13. Effective on September 15, 2008, the BMHC put Mr. Rathwell into the Early Intervention Process of the "At Work" Program because he had reached the threshold number of days of absence. 14. Mr. McMurter advised Manulife on October 8, 2008 that Mr. Rathwell had reached his 11th day of absence. At this time, the program was being managed out of the Manulife office in Montreal by Suzie Coutu 15. On October 8th, 2008, Suzie Coutu called Mr. Rathwell at home. Mr. Rathwell advised her that he would not talk to her from home but that he would return her call from work. The call lasted no longer than a few minutes. 16. On October 10,2008, Mr. Rathwell called Ms. Coutu from work to discuss the "At Work" Program and his absences. The caJllasted no longer than 4 minutes. 17. The only matter discussed during this call was Mr. Rathwell's absences. 18. On October 21, 2008, Mr. Rathwell filed a grievance alleging that the ROHCG had failed to com.pensate him for a call-back on October 8, 2008 pursuant to article 19.02 of the Collective Agreement. 19. On. October 28, 2008, Manulife received a note indicating that Mr. Rathwell was totally disabled from September 9 to 29, 2008. On that same day, Ms. Coutu wrote to Mark McMurter and recommended that Mr. Rathwell's absence fOT the period of September 9 to 29, 2008 be supported. 4 9001fl 3~IddO MV1 H1INS 10I13 ~Z9L+9~9+CT9 XVd 09:60 ilHl OT/TT/ZO Rose Williams 20. For the calendar year 2008 ending on December 31, 2008, Rose Williams was absent on the following days: a. Wednesday, January 16 for a period of7.25 hours; b. Monday, January 21 for a period of7.25 hours; c. Friday, February 8 for a period of7.25 hours; d. Monday, March 3 for a period of 7.25 hours; e. Tuesday, March 4 for a period of7.25 hours; f. Wednesday, March 5 for a period of 7,25 hours; g. Thursday, March 6 for a period of7.25 haul's; h. Friday, March 7 for a period of7.25 hours; 1. Wednesday, May 7 for a period of 1.25 hours; J. Monday, May 12 for a period of7.25 hours; k. Tuesday, May 13 for a period of7.25 hours; 1. Wednesday, May 14 faT a period of7.25 hours; m. Thursday, May 15 for a period of7.25 hours; n. Friday, May 16 for a period of7.25 hours; o. Tuesday, May 20 for a period of7.25 hours; p. Wednesday, May 21. for a period of7.25 haul'S; q. Thursday, May 22 for a period of7.25 hours; r. Friday, May 23 for a period of7.25 hours; s. Wednesday, September 10 for a period of7.25 hours; t. Thursday, October 2 for a period of 7.25 hours; u. Thursday, December 18 for a peliod of7.25 hours; v. Friday, December 19 for a period of7.5 hours; 5 LOO~ 3~IddO MV1 H11WS 10113 VG9L+SvS+CT9 XVd TS:60 ilH1 OT/TT/GO w. Monday, December 29 for a period of7.25 hours; x. Tuesday, December 30 for a period of 7.25 hours; y. Wednesday, December 31 for a period of 7.25 hours. 21. On May 23, 2008, Rose Williams had reached 10 days of absence due to illness. 22. On August 8, 2008, Mark McMurter met with her at work during paid time in accordance with the "At Work" Program to discuss her absences. Ms. Williams was accompanied by a Union Representatives, Kevin, Hudson and David McDougall who stated that if Ms. Williams was moved into the "At Work" Program, a grievance would be filed. 23. Effective on September 10, 2008, the BMHC put Ms. Williams into the Early Intervention Process of the "At Work" Program because she had reached the threshold number of days of absence. 24. For the calendar year 2009 between January 1,2009 and Apri129. 2009, Rose Williams was absent on the following days: a. Tuesday, January 27 for a period of 7.25 hours; b. Wednesday, January 28 for a period of7.25 hours; c. Wednesday, March 18 for a period of7.25 hours; d. Thursday, March 26 for a period of 7.25 hours; e. Friday, March 27 for a period of7.25 hours; f. Monday, March 30 for a period of7.25 hours; g. Tuesday, March 31 for a period of 7.25 hours; h. Wednesday, April! for a period of7.25 hours; 1. Thursday, Apri12 for a period of7.25 hours; J. Friday, April 3 for a period of7.25 hours. 25. On March 24,2009, Mr. McMurter referred Ms. Williams' file to Manulife pursuant to the "At Work" Program as a recurrence as she had been absent on January 27 to 28~ 2009, and March 18~ 2009. 6 soo~ 3~IddO MV1 H1INS 10I13 tZ9L+St9+~T9 XVd T9:60 nHl OT/TT/ZO 26. On April 8,2009, an initial call was placed to Ms. Williams at home by Keslie Barthelemy from Meumlife. She left a message requesting that Ms. Williams call her back. 27. On the same day, Manulife received a medical, note for the absence of Mm'ch 30 to April 3t 2009. 28. On Aprill4, 2009, Ms. Barthelemy called Ms. Williams at home while Ms. Williams was at home. Ms. Barthelemy was able to explain to her the programs, roles and responsibilities of Manulife, ROHCG, and the employee. Ms. Williams expressed her concerns regarding fraud and confidentiality. She proceeded to tell Ms. Barthelemy her diagnosis and that she would not return to see her doctor given that she had already provided a medical note. Ms. Barthelemy advised Ms. Williams that for future absences, Ms. Williams would have to submit a completed Attending Physician Statement. The call lasted 110 longer than 10 minutes. 29. The only matter discussed during this call was Ms. Williams' absences. 30. On April 14, 2009, Ms. Barthelemy wrote to Mark McMurter advising that Manulife was unable to make any recommendation with respect to Ms. Williams' absences. She confirmed that Ms. Williams had provided a medical note for her absences of March 30, 2009 to April 3, 2009 but that she did not fill out her Attending Physician Form for her absence. 31. On April 29, 2009, Ms. Williams filed a grievance alleging that the ROHCO had failed to compensate her for call-back on Aprill4, 2009, pursuant to article 19.02 of the Collective Agreement. David Boyer 32. For the calendar year 2008 ending on December 31,2008, David Boyer was absent on the following days: a. Friday) January 11 for a period of 8 hours; b. Wednesday, January 23 for a period of 8 hours; c. Friday, February 1. for a period of 8 hours; d. Friday, February 8 for a period of 8 hours; e. Tuesday, February 19 for a period of 8 hours; f. Wednesday, February 20 for a period of 8 hours; 7 600~ 3~1ddO MV1 HLIWS L0113 tZ9L+St9+C19 XVd 19:60 fiHL 01/11/Z0 g. Monday, March 3 for a period of hours; h. Friday, March 7 for a period of 8 ours; 1. Thursday, April 3 for a period Of: hours; J. Tuesday, May 6 for a period of 81 ours; k. Tuesday, May 20 for a period of hours; 1. Thursday, May 22 for a period of 8 hours; m. Wednesday, June 11 for a period I f 8 hours; n. Monday, June 23 for a period of hours; o. Monday, July 28 for a period Of' hour.; p. Monday, August 11 for a period If 8 hours; q. Friday, September 5 for a period f8 hours; r. Tuesday, October 7 for a period If 8 hours; s. Wednesday, October 8 for a peri I d of 8 hours; t. Thursday, October 16 for a perio I of 8 hours; u. Thursday, December 4 for a peri I d of 8 hours; v. Monday, December 8 for a perio! of 3.5 hours; . I w. Tuesday, December 9 for a peri d of 8 hours; x. Wednesday, December 10 for a leriOd of8 hours. 33. On June 23, 2008, David Boyer had reao ed 5 days of absence due to illness. 34. On August 8, 2008, Mark McMurter mel with him at work during paid time to discuss his absences. Mr. Boyer was accompanied 1:)11 Union Representatives, David McDougall and Kevin Hudson who stated that when Mr. Boyer's file was fOlwarded to Manulife they would file a grievance. I 35. Effective on October 16,2008, the BM C put Mr. Boyer into the Early Intervention Process of "At Work" Program because e had reached the threshold number of days of absence. 8 OTOfe] aOlddO MV1 HlINS IOI1a vZ9L+gv9+~T9 XVd T9:60 nHl OT/TT/ZO 36. For the calendar year 2009 between Janu ry 1,2009 to April 29, 2009 ending on December 31, 2009, David Boyer was a sent on the following days: a. Thursday, FeblUary 5 for a pedo of 8 hours; I b. Friday, February 6 for a! period 0 8 hours; , c. Monday, March 2 for a period of 8 hours; d. Wednesday, March 11 for a peri d of 8 hours; e. Tuesday, March 24 for a period 8 hours. 37. Mr. Boyer's file was referred to Manulife under the "At Work" Program as a recurrent II ' claim for absences on FeblUary 5 and 6, I 009, and on March 2 and 11,2009. 38. On April 22, 2009, Keslie Barthelemy fr m Manulife called Mr. Boyer at home, Upon answering the call, Mr. Boyer did not gi I e Ms. Barthelemy the chance to explain the program, and he informed her that Man I, ife would not be receiving medical information and that he wanted to be contacted at wdrk only. He hung up. The call1asted no longer than 1 minute. 39. The only matter discussed during this ca 1 was Mr. Boyer's refusal to participate in the "At Work" Program. 40. On April 22, 2009, Ms. Barthelemy wrole to Mark McMurter advising that Mr. Boyer had declined to participate in the program, that he had not provided the Attending Physician Form, and that Manulife was table to support his absence of February 5 to 6, 2009 and March 2 and 11,2009. 41. On April 29, 2009, Mr. Boyer filed a gri vance alleging that the ROHCG had failed to compensate him for call-back on April 21 ,2009, pursuant to article 19.02 of the Collective Agreement. Call-Back Procedure 42. Maintenance employees, including Mr. athwell and Mr. Boyer, are sometimes called at home in order to deal or respond to am' tenance issue. During these calls, the maintenance employees are required to ,rovide direction in respect to the maintenance issue or to perfonu maintenance work. Ii is part of their employment duties and responsibilities to deal with these maint Imince calls. When they are called at home to deal with maintenance issues, they are p id in accordance with the call-back provision of the Collective Agreement even if they al not required to return to the workplace in order to resolve the maintenance issue. 9 no~ 30IddO ~V1 HIIWS 10I13 vZ9L+gvS+CT9 XVd ZS:60 ilHl OT/TT/ZO 02/11/10 THU 10:39 FAX 613+548+7624 ELIOT SM~TH LAW OFFICE 141 002 .... 'J ~ .. -' ..........".... 43. The Parties have agreed to the above facts, and that the Parties will not call witnesses at the hearing to provide additional evidence. Dated this 7th day of January 2010. On behalf of OPSEU and the grievors On behalf of BMHC and ROHCG 3. The employer introduced a new "At Work" program to manage ilmocent absenteeism. As part of the program, Manulife, as agent for the employer, would, for absences beyond the 10tl1 day, initiate a call to the employee to discuss the program. 4. The union grieved three separate instances of Manu life calling the employees' homes to inform the employees about the Early Intervention Process. 5. On September 15,2008 Mr, Rathwell had reached the threshold number of days and consequently was placed on the early intervention program. On October 8th 2008 Mr: Rathwell received a call at home from Suzie Coutu of Manulife. Mr. Rathwell advised her that he would not talk to her from home but that he would return her call from work. The call lasted no longer than a few minutes. On October 10, 2009, Mr. Rathwell called Ms. Coutu from work to discuss the "At Work" Program. 6. Rose Williams, having qualified for the Early Intervention Process, was called at home by Manulife on Apli114,2009 and spoke to Ms. Barthelemy. Ms. Barthelemy was able to explain to hel' the programs, roles and responsibilities ofMa11'ulife, ROHCG, and the employee. Ms. Williams expressed her concerns regarding fraud and confidentiality. She proceeded to infonn Ms. Barthelemy of her diagnosis and that she would not retum to see her doctor given that she had already provided a medical note, Ms. Barthelemy advised 10 Ms. Williams that for future absel'l.ces, Ms. Williams would have to submit a completed Attending Physician Statement. The call lasted no longer than 10 minutes. 7, Effective on October 16,2008, the BMHC put Mr. Boyer into the Early Intervention Process of the "At Work" Program because he had reached the threshold number of days of absence. Mr. Boyer's file was t'eferred to Manulife under the "At Work" program as a recurrent claim for absences on FeblUary 5 and 6,2009, and on March 2 and 11,2009. 8. On April 22. 2009, Keslie Barthelemy from Manulife called Mr. Boyer at home. Upon answering the call. Mr. Boyer did not give Ms. Barthelemy the chance to explain the program, and he infonl1ed her that Manulife would not be receiving medical information and that he wanted to be cOl1.tacted at work only. He hung up. The call lasted no longer than 1 minute. 9. Manulife's role in the "At Work" program is to inform employees about the program, gather confidential information, which is not shared with the employer, and then make assessments on the basis of the tlmctional capabilities and reasonable recovery time of an employee. The conclusions reached on the basis of Manulife' s assessment are in the complete purview of the employer. 10. MaJ."1Ulife does not have any responsibility for managing the process. The employer through a combination of the supervisors and the Occupational Health Nurse review Manulife's assessments and make determinations about each employee. 11. Article 19:02 the on call article in the collective agreement states: An employee who is called to work after leaving the Hospital's premises and outside of her regular scheduled hours shall be paid a minimum of no less th.an four (4) hours' pay at time and oneMhalf (1 Y2) her regular straight time hourly rate for work performed on each call~in. In the event that such four-hour period overlaps and extends into her regular shift. she willl'eceive the four ~hour guarantee payment at time and one half (1 ~ ) and her regular hourly rate for the remaining hours of her regular shift. 1l ZOO~ ~OIddO MV1 HIINS 10Il~ vZ9L+Sv9+C19 XVd 10:91 a~M 01/01/Z0 12. The union posits that the role of Manulife is to step in the shoes of the employer for all purposes relating to the "At Work" program. In Re Canadian Airlines, 38 L.A. C. (4'h) , Arbitrator Burkett finds that employees who are called in to work to attend performance and attendance review meetings, during non-working hours, absent specific language to the contrary, are entitled to be paid reporting pay for those meetings. The union asserts that one can not bifurcate the "At Work" program and consequently, Manulife's calls to employees at home during non-working hours about the "At Work" program would attract call in pay as those calls are an integral part of the program. 13. At paragraph 42 of the agreed statement of facts, the parties agreed that maintenance employees are sometimes called at their homes in order to deal or respond to a maintenance issue. During these calls, the maintenance employees are required to provide direction in respect to the maintenance issue or to perform maintenance work. It is part of their employment duties and responsibilities to deal with these maintenance calls. When they are called at home to deal with maintenance issues, they are paid in accordance with the on.call provision of the Collective Agreement even if they are not required to return to the workplace in order to resolve the maintenance issue. This practice is consistent with some of the jurisprudence on call-in pay. (see: Markham Stouffiille Hospital J 67 L.A.C (4th) 425.) 14. A salient feature of Re Canadian Airlines above is that the employees were compelled to attend the pel'fonnance and attendance review meetings under the threat of discipline. 15. In the case before me, there was no threat of discipline to employees who refused to talk to the Manulife representative. Mr. Rathwell and Mr. Boyle were not disciplined for declining to speak with the Manulife representative when she called at home. Further, Mr. Boyle was not disciplined for not participating in the program. These grievors requested that the Manulife representative call them when they were at work. In both cases the grievors spoke with the Manulife representative during working hours. In Mr. Boyer's case he was refused sick pay by his employer, because he declined to participate in the program and he did not provide the proper phySician forms. 16. Another difference from Re Canadian Airlines is that the extent of Manulife' s involvement is limited to information gathering, explaining the program and advising about what types of treatments are available through Manulife. The phone call between Ms. Barthelemy, the Manulife representative and Ms. Williams is an example of the type of conversations Manulife representatives are supposed to have with employees. 12 1':00 ~ 3:)IddO A\V1 H.LmS .LOI13 tZ9L+St9+1':19 XVd ZO:91 G3M 01/01/Z0 f700~ ,. 17. In each of the cases before me) it was the employees) who decided whether or not they would talk to the Manulifie representative during non-working hours. The two grievors who told the Manulife representative that they wished to be contacted during working hours1 were contacted during those hours. In reviewing the documelits tendered into evidence, I find that, at this time) Manulife does not have the authority to discipline employees who wish to be contacted at work rather than at home. 18. The union submitted that it was possible that the delay in waiting until the grievor was at work to hold the conversation could lead to a determination of non-compliance, which, under the HAt Work" program is deemed to be a breech of the employer's policy and could impact paid sick leave benefit for that period. (see: ROHCG CORPORATE "AT Work" PROGRAM EMPLOYEE INFORMATION SESSION April 28, 2008) 19. In answer to one of my questions, about the potential of discipline for an employee who decided not to speak with the Manulifc representative during non-working hours, the employer stipulated that it would not discipline an employee who made alternate anangements for a conversation during working hours. Obviously the prohibition against discipline is for employees who make reasonable altemative arrangements and comply with the other aspects of the program. If an employee makes a reasonable altemative arrangement to talk with the Manulife representative during non-working hours and the employee follows through with that arrangement> the employer would not be able to find that the employee has not complied. 20. Manulife's role is to help an employee access sick pay and health benefits in a timely fashion. Actively thwarting that process is not in an employee's best interest. Manulife's role in the "At Work" program is to serve as facilitator, advisor, and assessor. This role is about gathering infomlation for the purpose of conferring a bene'fit or for the purpose of allowing the employer to make detenninations about the employees' accommodations or sick pay benefits. 21. I find that Manulife, in its limited role, as agent for the employer, may on a voluntary basis, engage in conversations with employees about the "At Work" program, outside working hours, and those conversations do not attract any fonn of pay. 13 3~IddO MV1 H1IWS 10113 f7Z9L+Sf7S+CT9 XVd ZO:9T G3M OTi~----- 22. Further, I find that voluntary discussions between all agent of the employer and an employee, during non work hours, concerning the gathering of confidential medical infonnation, assessing the claim and advice about the "At Work" program, does not attract call-in pay, as the employee is 110t performing work as defined in Article 19:02 of the collective agreement. 23. On the basis of the facts before me, the employer has not breached the collective agreement. These grievances are dismissed. Dated in Toronto this 30 Day of January 2010. ~Ch 14 SOO@ 30IddO MV1 H~IWS ~OI13 vZ9L+SvS+C19 XVd ZO:91 o3M 01/01/Z0