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HomeMy WebLinkAbout1978-0182.Laframboise.80-02-06182/78 IN THE MATTER OF AN ARBITRATION Under The CROOWN EMPC'XEES COLLECTIVE BARGAINING ACT.'- Before THE GRIEVANCE SETTLEMENT BOARD Between: ~~ Mr. Yvon Laframboise And The Ministry of Housing, Before: Professor K. Swinton Mr. J. Morrow Mr. D. Anderson For the Grievor: - Chairman - Member - Member .i: Mr. G. Jones National Representative Canadian Union of Public Employees ~For the Employer: Mr. H. Knight Personnel Branch Ministry of Housing Heariq: December 14th, 1979 Toronto, Ontario ~- 2 - This is a grievance in which Yvon Laframboise claims that he has been unjustly suspended for six months from October 2, 1978 to ~. April 2, 1979. His employer, Ontario Housing Corporation, has argued that the grievor was not suspended, but instead was required to take up to six months leave 'of absence for medical reasons. . The griever is a 40.year old man, who is married, with five children, all living at home. He has been employed as a Groundsman in the Maintenance Department of the Ottawa Housing Authority since March 7,,~,1975. During that period, he has had a poor.attendance record. " . From January 1, 1977 to January, 1978, he was absent (either sick or on leave without pay) for a total of 53 3/4 days. The leaves were intermittent ones - February, 7 days; July, 2 3/4 days; August, 13 days; September, 2 days; .November, 8 days; December, 1 3/4 days; and January, 1978, 19% days. The number of absences were a source of concern to Mr. E. M. Harvey, the Administration Manager of the Ottawa Housing Authority. On January 30, 1978, he wrote a letter to the cjrievor (Ex. 3), express- ing his concern about the number of absences and finishing with the following paragraph.of warning: YOU a& hereby warned that your attendance record mst improve and absences such as that listed above cannot be tolerated any longer, your work attendance has to improve and further absences will necessitate additional action as requized~by this Authority. What form that "additional action" might take was not specified. The grievor's attendance record did not improve and, in fact, deteriorated over the next few months. Harvey reviewed the grievor's file in September 1978 and found that the grievor had missed 73 days or 45.6% of the working period between February 1 and September 15, 1978. Again, the absences were intermittent - February, 18 days; March, 22% days; May, 7 days; June, 10 days; July, 3 days; August, 5% days; September, 7 days. After considering the record, Harvey wrote ~a letter to the grievor dated September 27, 1978 (Ex. 4), which placed the grievor on a leave of absence for six months. The wording of this letter is important, in particular the last two paragraphs, which are quoted below: In view of the foregoing, from which it appears that your attendance record does not give assurance that you canbe available and report regularly for work as required of you in your position, the Authority finds it necessary, and does hereby place you on a leave of absence from work without pay fora period of 6 months, comment- ing October 2, 1978;and ending April 2, 1979. If during that period of leave of absence, you dare able to satisfy this Authority, that you will be able to undertake the duties of your position, and henceforth report regularly for work for the full, normal hours and days of work as scheduled and required of you in your position, this Authority will, at that time, reinsGate you iq,,.your former position. If you are unable to attend to work on a regular basis at the end of this 6 nwnth period (April 2, 1979), your employment with this Authority will be terminated. It was Mr. Harvey's contention that he had decided to place the grievor on a leave of absence for an extended period‘in order that the grievor could improve the condition of his health. At no time, however, did Harvey call the ,grievor into the Housing Authority office to discuss the grievor's attendance record nor to try to discern the cause or causes of Laframboise's absences. Harvey did say that he had talked casually with the grievor in the office about a back problem. In addition, evidence was led regarding letters from Harvey to the grievor, from Harvey to the grievor'g doctor, and from the grievor's - 4 - doctor to Harvey dated March 1, and February 28 and March 7, 1978 (Ex. 7, 9, 10 and 8 respectively), discussing a serious back problem &iii'& the grievor was experiencing in February, 1978. The doctor recomnended that the grievor be given lighter work, as duties~then being required of him, which consisted of pick and shovel work to remove ice, aggravated the back problem. Dr. Day recommended in his March 7 letter that the grievor be given six weeks light work and then have his condition reviewed before resuming normal duties. While this correspondence was in the grievor's file respect- ing his February and March, 1978 absences, the,re was no indication that Harvey considered this evidence nor sought further information in September, 1978 regarding the reasons for the grievor's absences when he decided to place the grievor on leave. He said in testimony that there was no doubt that the absences were bona'fide and that the grievor -- provi~ded medical certificates whenever necessary. Such certificates as were presented in evidence, however, were cryptic as to the reasons for absences. I* ".. ; ': ;,. Nevertheless, Harvey.placed the grievor on leave for six months. He did not choose the six month period for any medical reason. Rather, six months was the period under the collective agreement for which he could hire a temporary employee, thus protecting the grievor from perma- ent displacement. Mr. Harvey emphasized throughout his testimony that the six month leave period was an outside limit. It was his intention, in writing the letter, to allow the grievor to return to work before six months expired if the grievor could provide a medical certificate showing his ability to undertake his duties on a regular basis. Such an intention is not clear, however, from a reading of the letter. This intention or interpretation of the letter was never explained verbally to the grievor. He received the letter of September 27 while at work and went on leave on October 2, 1978 after completing the work week. Throughout the six month period, he stated that it was his undertitanding that he was to stay off work for six full months. This was also the understanding of his steward, Mr. Houle, who gave evidence at the hearing. Both said that they were never informed otherwise at any stage of the grievance procedure. After the leave started,.the grievor sought and was denied unemploymentinsurance. He was told that he needed a termination certificate, and he had never received one. Harvey testified that the proper form had been mailed (Ex. 5), but the grievor pointed out at the hearing that the address on the form was‘incorrect and he had never seen the form. The grievor.then turned to the Welfare Department in Ottawa and succeeded in obtaining welfare of $450 per month plus subsidization of his rent. At no time inthe.period of absence did he seek work, for he said that he feared that he would be discharged for improper use of the medical leave of absence if he tried to work when he should be recupera- ting. It was pointed out'by counsel for the union that Article 7.01 (d) of the Collective Agreement provides that an employee will lose seniority and employment shall be deemed terminated if he/she "uses authorized leave for purposes ~ . other than that for which it was granted by the Employer." 'On March 13, 1979 the grievor presented a medical certificate stating that he was fit to return to work (Ex. 6). A reply from Harvey dated March 14 (5x. 14) stated that the grievor could return to work on -6- April 2,, which ,he did. I The griever has argued that he was unjustly suspended for the '-" six month period, and he now seeks full cdmpensation for that time off. The employer contends that there is no qtiestion of a punitive suspension here-and that the grievor was only granted a leave ot absence for medical reasons to allow him to recuperate. There is no doubt that an employer can take action to deal with excessive absenteeism on an employee's part. It is well-established in arbitral jurisprudence that such action should not be punitive where the absences are innocent and without fault on the emplbyeels part. Yet even if absences are taken for good reasons, the employer is not left without recourse. The employer can take steps up to and incliding discharge to try to prevent excessive absenteeism and to protect the undertaking from the expense and inconvenience caused by the employee's absences. While stressing the need for corrective disciplinary action and the importance of a "guilty mind", many arbitrators have recognized,the contractual aspect of the employment relationship in absenteeism cases and emphasized that a balance must eventually be made between an employee's interest in job security and an employer's interest in obtaining the benefits of the services for which he has contracted (Re United Rubber Workers and Seiberling Rubber~Co. of Canada Ltd. (1979), 20 L.A.C. 267 (Weiler) at 275; Re United Autombile Workers and Massey-Ferquson Ltd. (1969)‘ 20 L.A.C. 370 (Weiler) at 371; Re United Autombile Workers, Local 458 and Massey-Ferquson Industries Ltd. (19721, 24 L.A.C. 344 (Shime) at 345). . 5 - I - It has also been recognized by arbitrators that the most disruptive type of absences are short, intermittent absences. I~f an employee is absent for an extended period, it is easier for the employer to find or train a replacement. Intermittent absences cause greater disruption because of the lack of predictability in scheduling and in finding replacements (Massey-~erguson (Weiler), supa, at 371; Toronto Transit Commission and Amalgamated Transit Union (Division 113) (unreported - 19741 (Beatty)). In the case before us, the grievor's attendance record is not a favourable one. He missed 53 3/4 days in 1977 or 25% of working time and 73 days in the first nine months of 1978 or 45.6% of working time. Harvey testified thatthe average absence rate for employees in 1978 was 9% days and that the grievor's record was the worst of the employees under his supervision. Furthermore, most of the absences were intermittent, although the February - March, 1978 absence was prolonged. The reasons for the absences, while unchallenged, were varied, a&cording. to the grievor - back problems, flu, colds, a bunion on his foot. Such intermittent absences can be very disruptive to the employer's operations, although no evidence of disruption was introduced in this case. In light of the facts, it is not surprising that the employer was concerned about Mr. La~framboise's attendance. The question for the Board to address is whether the employer manifested its concern in an acceptable manner by requiring the grievor to take a leave of absence for six months. If one looks again to the cases which have addressed the question of the range of acceptable employer action against an employee for innocent absenteeism, one finds a great reluctance to uphold action which interferes with the employee's job security. Most cases deal with discharges for innocent absenteeism, and there is great reluctance to uphold such action unless the employer can satisfy the arbitrator with regard to two questions: that the employee's past record shows undue absenteeism and that the employees, is incapable of reasonably regular attendance into the future (Massey-Ferguson (Weiler). supra at 348; me Atlas Steels Co. and Canadian Steelworkers Union (1975)‘ 8 L.A.C. (2d) 350 (Weatherill) at 351; Re United Automobile Workers, Local 397 and Barber-Ellis of Canada Ltd. (1968), 19 L.A.C. 163 (Schiff) at 176). The requirements which might justify a discharge are equally suitable in a case like the present. The employer has not terminated the grievor's employment, but it has temporarily severed the employee's working relationship. If one then turns to the facts of this case, it is undeniable that.the grievor has been proven to have a poor attendance record. However, when it comes to the second issue, whether the employee is capable of reasonably regular attendance into the future, it must be concluded that the employer has failed to meet the burden of proof upon it. Although we do not question Mr. Harvey's motives in WUiring the grievor to take a leave of absence, Mr. Harvey did so without any evidence that a leave of absence and, in particular, a .leave of absence for six months, would be a suitable way to assist the employee, as well as to protect the employer's interest in obtaining services contracted for. At no time did Harvey call in the grievor, either in January when he first became concerned about the rate of absenteeism, or in September, when he put the grievor on ieave. He had no clear indication as to the reasons for the grievor's illnesses nor as to the prognosis for recovery. He did not seek medical information, as he had in March when the grievor was absent, to assist him in assessing the gr-ievor's condition. Had he done so, he might well have come to's different conclusion than he did. For example,-in March, Dr. Day had counselled six~weeks leave as sufficient. Arbitrators in many cases have upheld employee grievances in cases like the present where the employer has failed to seek proper evidence~of the employee's prognosis for reasonably regular future attendance: Barber-Ellis. supra; Re United Automobile Workers, Local 112 and De Havilland Aircraft of Canada Ltd. (1969), 20 L.A.C. 418 (Weatherill); Atlas Steels Co ., supra; Re Firestone Tire & Rubber Co. of Canada Ltd..and United Rubber Workers, Local 113 (1973), 3 L.A.C. (2d) 12 (Weath&rill). The employer has an obligation.to seek such evidence before taking action against the employee in order to ensure that such action is warranted. In this case, it has been argued by the employer that the employee wasnot jeopardized by the leave of absence, ashe would have been in a discharge case. It was contended that the letter of September 27 placed an outside limit on the employee's severance from work: six months or less if he demonstrated his fitness to return. Therefore, having failed to show the employer that he was able to return earlier than April 2$ he should not be allowed to claim that he was unjustly required to take a leave of absence for six months. In effect, the employer's argument rests on the view of what a reasonable person would conclude on reading the September 27 letter. There is a basic problem with this argument, and it rests on the locus of responsibility in requiring and defining the terms of a leave of absence in this case. It has been stated that the employer should take action only if the employee is incapable of reasonably regular attendance in the future, and the action taken should then be such as to promote that objective of regular attendance,. if that is feasible. Sometimes a warning will be sufficient; at other times a leave of absence or demotion may be appropriate. - 10 - Before taking action, the employer must have sufficient information and should consult the employee to try to ascertain the best way in which to balance both the employer's and employee's interest. If Mr. Harvey was concerned that the grievor be given a chance to recuperate, then he should have obtained,medical advice as to the need for and~efficacy of a leave of absence. If an open-ended leave of absence was then thought to be an acceptable way to deal with the grievor's medical problems, it should have been made clear to the grievor that this was the plan and that he could return earlier, if he was fit. It was clear, after seeing the grievor testify, that he is not used to dealing with written material nor is English his first language. It was therefore incumbent on the employer to explain carefully what was expected of the grievor. This might well have been done in January, and should clearly have been done in September, 1978. In addition, the employer should have ensured that the grievor was aware of his employment status. Much of the unfortunate misunderstanding with Unemployment Insurance might have been avoided if time had been taken to explain the grievor's status to him. While there was some conflicting discussion at the hearing about whether the grievor received an explanation from his immediate supervisor, Hall, or from someone during the grievance procedure about the leave of absence and his eligibility to return early, this evidence does not assist _. in our decision. The employer should have investigated the grievor's state of health at the time of imposing the leave of absence and should also have clarified the status at that time. Failure to do so by the decision-maker, particularly failure to interview the grievor and clarify these issues, leads to the conclusion that the employer acted without sufficient information in requiring the leave of absence. Had there 5 ' , *been more information available, such serious action might not have been taken. Therefore, we would allow the grievance. The grievqr has claimed that tie was,'!unjustly suspended", and in light of the con- clusion that the employer did not have sufficient reason to require the employee to take a leave of absence for six months, the Board would conclude that the grievor was indeed unjustly~suspended. The employer might call this a l.eave of absence, but the effect is a suspension, and changing the name of the action does not alter its effect. The grievor should be reimbursed for the remuneration foregone over the six month period. He should be credited with seniority for the period, as well. The employer's action, although not taken with the objective of disciplining the employee, was too precipitate and placed the grievor in a difficult financial position. It would be unfair to require the grievor to bear this loss personally, when it was caused by unwarranted action by the employer. The Board will retain jurisdiction to deal with any problems in compensation arising out of the implementation of this awards. Dated at Toronto this 6th day of February 1980. Prof. Katherine Swinton Chairman I concur Mr. John Morrow Member I concur Mr. Dan Anderson Member