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Home My WebLink About1977-0143.Fleming.78-01-06143177 CROWN EMPLOYEES 416 9!4-"426 GRIEVANCE SETTLEMENT EOARD IN THE MATTER OF AN ARBITRATION Under The CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD Between: Mrs. E, I. Fleming And Ministry of the Attorney General Before: G. W. Adams Chairman Mrs. Mary Gibb Member H. E. Weisbach Member Suite 405 77 Bbor Street I& TORONTO, Ontario M5S 1M.2 For the Grievor: Mr. George Richards Ontario Public Service Employees Union For the Employer: .Mr. E. Thompson Ministry of the Attorney General Hearing: December 15th, 1977 Suite 405 77 Bloor St. W. Toronto, Ontario. -2- Mrs. Fleming grieves that she has'been dismissed without just cause and requests that she "be re-instated : - - with no loss of benefits, monies or seniority and the incident be stricken from <her) record". She has been employed by the Ministry of the Attorney General from January 24, 1972 to September 9, ,1977, the date of her dismissal. At dismissal Mrs. Fleming was employed as Secretary to the Senior Deputy in the office of the County Court in the Judicial District of York and she was classified as a Clerk 3, General and paid at the rate of $206.21 per week. According to office attendance records Mrs. Fleming was absent from work, due to illness, between May 12, 1976 and December 23; 1976 as follows: May 10 days June 6.5 days July 1 day August 2 days September 7 days October 4.5 days November 10 days December 2 days A medical report on the grievor dated December 23, 1976 and prepared by Dr. Harold A. Brasch was presented to the Board. Dr. Brasch notes that Mrs. Fleming has been under the care of Dr. E. V. Dunn regularly for the past five years in an attempt to control migraine headaches. His report indicates that her headaches were completely out of control in that year following the death of her mother. He goes on to say that after that time, with adjustment to ” s -3- medications, the attacks were much,less frequent although they continued to occur four or five times a month. He notes that if they come on during the day she can take her medication and continue to work but once or twice a month they come on severely at night and she is unable to get to work the next day. Mrs. Fleming was absent due to illness between January 1, 1977 and June 28, 1977 as follows: January 11 days February 7 days March G 6 days April 12 days May 13 days June * 7 days Another report of Dr. Brasch, dated'June 28, 1977, notes that the grievor's husband had been very ill during this period - indeed.so ill that on two occasions he almost passed away. The doctor notes that Mrs. Fleming's migraine headaches increased during and following her husband's illness. He goes on to note that her migraine headaches now occur, on present medication, once a month. He observed that her future attendance at her work "is uncertain" in lieu of her depression being controlled only by heavy medication. During July she was absent 5 days and during August 15 days. However on August 22, 1977 she was advised by letter, over the signature of Assistant Deputy Minister John D. Hilton, - I ” . . -4- that she was dismissed "with effect from September 9, 1977”. She received this letter on August 22, 1977 and simply ceased work as of that date. Accordingly 8 of the 15 days she was absent in August had nothing to do with her illness. The Senior Deputy Clerk, Mr. A. 0. Beckett, testified that the griever 'had worked for him and that her work was very good. He told the Board she spent most of her time processing adoptions and that it was important to avoid mistakes and delays in performing this work. Apparently mistakes.on adoption orders can only be corrected by reapplying to a judge and delays are of great concern to affected lawyers and their clients. Mr. Beckett advised the Board that when the grievor was absent she was replaced by a temporary employee who required a great deal of instruction and assistance in order to avoid errors. This meant that either he or other employees were continuously diverted from their own work. However he could not say that complaints from lawyers or judges increased during or as a result of her frequent absences. But during a meeting of management just prior to the grievor's dismissal he took the position that the office could not go on in the same way. Adoption orders were backed up because of the grievor's absences and he did not want to keep asking other employees to render assistance. Mrs. Fleming told the Board that in June she had been given a co-worker's duties to perform as well as her own and that this additional pressure contributed to her problems at that time. r\ ,% -5- She advised the Board that her husband was back at work. She also indicated that her work was backed up.because other employees refused to perform her work during her absences. She advised the Board that she has been working as a general receptionist for a trust company since September 20, 1977 and that she has only missed two days of work on account of her migraine headaches. She admitted that her attendance at work had to improve dramatically and promised that it would. She stressed that her mother's death and husband's illness had greatly aggravated her condition in 1976 and 1977.’ This is a very difficult case. While an employee cannot be disciplined for absenteeism due to illness, such absenteeism can be so disruptive as to merit the employee's dismissal. In the instant case it is difficult to dispute that the grievor's absences would have been very disruptive both to the employer and the grievor's fellow employees. Indeed one of her fellow employees flatly refused to perform her work and this only contributed to the delays in processing adoptions. Certainly an employer does not have to shoulder the degree of absenteeism that Mrs. Fleming has had to experience. But there is a question whether Mrs. Fleming would experience fewer headaches if placed in a less demanding position and the employer gave no thought to this approach before it decided . to terminate the grievor. The grievor advised the Board that she would be willing to work in another position, even for less pay, and indeed, she had applied for a less demanding job in the past. c. . . -6- Moreover of particular interest to the Board is the fact that the grievor has, in recent months, experienced fewer headaches and absences while employed in a less onerous position in the private sector. On the other hand the grievor's migraine headaches have not stopped completely and her work at the trust company cannot be equated to her previous,position with the employer or at least the union adduced no evidence in this regard. Accordingly we are very concerned about the consequences to both the grievor and! the employer of reinstating her into her former position. In the circumstances therefore, we have come to the conclusion that the griever's dismissal is to be nullified .and that she is to be treated as having been on a medical lay-off. The employer is directed to review its vacancies in respect of less demanding work that the grievor is capable and willing to perform. If such work is available the grievor is to be offered the position and her attendance record is to be reevaluated on the expiration of six months of work. If it has not improved appreciably she may be terminated. If such work is not available and will not be available within a period of time agreeable to the grievor and the union, the grievor may reapply to the Board for a determination as to whether she should be reinstated into her former position with conditions.. The Board therefore retains jurisdiction to entertain this issue if it <; -7- becomes necessary and with respect to the entire matter of compensation. Dated at Toronto this 6th day of January 1978. G. W. Adams, Chairman .(I concur) Mary Gibb, Member (I concur) H. E. Weisbach, Member