HomeMy WebLinkAbout1979-0064.Buick.81-09-25C~‘, . .
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IN THE MATTER OF AN ARBITRATION .d.
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Under The
CROWN EMPLOYEES COLLECTIVE: BARGAINIHG ACT'
Before
THE 'GRIEVANCE SETTLEMENT BOARD
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Between:
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The Crown in Right of Onta,rio
' (Ministry'of Housing) EUIplOyar
Before: -- Ms. M. K. Saltman Vice Chairman
Hr. G. Beaulieu #ember - ~~ Mr. A. Foetier~ Member
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Er the Griever: Mr. G. 0. Jones, National Representative
Canadian Union of ~Public Eui;loy+eS
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"; the Employer: .:lr. A.. P. Tarasuk, Counsel
. zentr.al Ontario Industrial
Relations ~Ins=itu:e
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In this case, the Grievor, Martin Buick, makes two claims:
1) that he has been improperly denied sick pay for the period February 5
to February & 1979.and 21 tliat'he was unjustly suspended for three days.
There was substantial disagreement as to the facts, which the
Board finds to be as follows. At the time of the grievance, the Grievor,
who had completed 16 years with the Corporation, was employed as a Senior
Labourer. On the basis of his service, he ias entitled tb four weeks'
vacation for the vacation year conmxncing on July 1. 1979. Some time in
April or Nay of 1979 the Employer posted a vacation schedule on which employees
indicated their vacation preferences. The Grievor marked the schedule to
show his request for a four-week period from January 21 to February 16. 1973.
Apparently, the Grfevor wanted four consecutive weeks of vacation so that he
could travel to Florida with his wife. However, the Grievor received no
response to his request and so he assumed that, as in previous years, his
request had been granted.
Subsequently, on December 15, 1978. the Grievor wrote the
following note which he submitted to the Employer:
"Dear Sfr
Please note thdt T requesting (Sic)
my vacation starting Jdn. Z/79 till (Sic)
Feb. 16/79 dnd would like my pay in advance.
Thank you
#Hartin Suick"
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~\... The Griever said .fhat,,he was snot thereby~requesti,ng ,/dCdtiOn ',
leave, which he submitted already hdd'been, granted by the Employer;, .he
merely was requesting vacation pay in advance. The Employer, however,
considered this note to-be a request for vacation leave; According to . ..‘, .~ .,’
George.Buckley,~Oist,rict~Housing ~Manager, the Grievor's requestfor
four consecutive weeks of vacation could not be granted without .
leaving the Employer shorthanded. . . Therefore, on December.20, 1378, the .e.
~CmPloyer wrote to the!Grievor advising him that his dp@liCdtfOn,for four
weeks of CgnSeCgtiVe vacation leave had been refused, but that,,approvdl
hdd~ been granted.for tuo&onsecutive-weeks' leave during the peripd in
question, the baldnce to .be taken ,after April .30,.'197g.
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The Grjevor.apparently was very upset~that his requestfor
, four-cons$utive-weeks' vacation had been denied.and brought the matter
tolthe attention of his MPP, Thomas 1. Welles,,. Ministry of Intergovernmental __, .~ _
Affairs, but received no assistance frqm.fjr. !fells. ..The Griever also requested
reconsfderatton of his application for leave.. Accordingly, ,a meet!ng
was arranged to discuss the matte? on Janiary 9, 1979. The meeting was
attended by Mr. Buckley and Betty Niddrie. Director of the Operations Branch.
for the Employer and by the'Gri&or and~his Shop Steward. Doug Short. .
~ According to Mr;..gickley, &.G;ievor said that he hdd alr&dy made, reservat!Ys
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in Plorida,'which &. Buckley said he'should snot have'done unti,l"his request .~.
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for ieave had beenapproved. The Griever denied'.sayinq.that he'had.prepdid hotel
dCCommodatiOnS in Floiida. Mr. Buckley explained to the Griever that his request
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for four-consecutive weeks of vacation leave could not.be granted without 3ir!-S
a temporary replacement, rhich the Corporation would *not'aPProve. 'Accordi lq;y,
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his request was denied. Mr. Buickdfd not grieve against the Employer's
decision.
The Employer had no further conmtunfcation with the Grievor who drove
to Florida on Saturday, January ZQ, 197g. He was due back at work on February
5th and would fiave to leave Florida by February 1st in order to report for
work as scheduled. At about the end of his first week of vacation, the Grievor
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said that he began to experience artfirftic pain and stiffness in his hands.
The Grievor said that the pain did not subside and on January 3lst he called
hfs son in Toronto to say'that he was ill and would call back after he had
seen a doctor on Fe6ruary 2nd. The Grievor remained in Florida past February 1st.
the day he was required to leave in order to report for work on February 5th.
claiming that he was una6le to travel due to pain. On February 2nd. the Grievor
visited a Cr. Schlftt who gave him an injection and a prescription for medication.
However, accordfng to the Grievor. these treatments dfd not provide relief
fmnedfately and ft was several days 6efore the Grievor could undertake the lono
drive home. flhe Grfevor said that his wi.fe dfd not drive on the hfghway.)
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On February 4th. the day before he was.requfred to report for
work. the Grfevor called his son and asked him to advise his Supervisor,
Henry Pospichfl. that he had taken ill in Florida and that he would be
sending a doctor's certificate by registered wfl, Pursuant to his~father's
instructions, on February 5th. the Grievor's son called the District Cffice.
where he reached Walter Elliott, District Maintenance f'anager. Ye informed
Mr. Ellfott that his father had injured his back at home and would not be rexrti:;
for work that day. Mr. Elliott. thinking that the infomation related to
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.a Uorkmen's Compensat,fon claim; asked-whether tha.,fnjury had been sustained
at work~or,at home; the-Griever's 'son safdrathome". 'Mr. Elliott relayed
the message to Mr. guckley'who thentried~ to'contact the Grievor.'rUhen he called
, '. ,the Grievor!s'home; Mr. Buckley ~reaclied the Gsievor's daughter who; advised him
that her father had~just left for a .doctor's appointment. CMr.'Euckley
~subsequently conffned?hat-tfie Grievor'did not have,an appointment with his
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family doct0r.r Mr. 6uckley left a message for the Giievor to call him, ~
,c but received no reply..'~ Whenthe Griever called his sonon February.Sth. his
son suggested,that lie, either call then EmplOye,r or send',a telegram to make
it clear that he was stfll in Florida. cJ7i.e Grievor's.son'.also reported that
Mr. Pospichil had been at the Griever's home, looking for,him. However.
there.was no evidence that Mr. Pospichfl ever attended at the Grievor's home.)
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Accordingly, on February 5th Car February Sth] the Grievor .sent .* ~.
the Employer a registered,Jetter, whfch' was received,o,n February:9th. advising . ,
that he was under a doctor's c.a,re and enclosing a doct+or's,not&.. The next
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( I day, t.he, Grievor sent the Gnployer a telegram to the same.effect. Also on
February 6th. the Grfevor's son apparently called again to the Dfstrict Office .: - I
and spoke wfth Mr. Pospichfl, whom he advised that his father-had injured his _ I/ _,i, /-
back in an accident fn, Flori.da and would be unable to. report fur work for severa?
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days.., Mr. PospicKil requested that the Grievor -tiring a,ductor's not,e on his
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return to work.
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On February,Sth. the Grievor telephoned,,his so:n to say~,!bat he
was leaving for home. He in fact arrived home on Sunday; February 11th. Shcrtly
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after 8:OO a.m. the next morning, he called wr:Pospichil to notify him that he
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had returned and would be seeing his doctor in Toronto.. According to ?!r.
Pospichil. the Grfevor asked in this conversation for a meeting later that
morning. Hr. Pospfchfl said that he agreed to the meeting and reminded
the Grievor to bring in a doctor’s certificate. According to fir. Pospichil,
he met with the Grfevor briefly in his office around 1,O:OO a;m. The Grfevor
explained the circumstances of hfs illness and said that he had a doctor’s
certificate v&icli. fiowever. he did not submit, apparently because he wanted "
to discuss the requirement for a certificate with his Union Steward. On the
Grfevor's versfon, there was neither a meeting nor a request for a meeting on
February 12th.
In fact, on February 13th the Grievor visited his family
doctor who pronounced him fit to return to work, which he did the nert day.
At about lO:OCl a.m. on February 14th the Grfevor met with the Area Hanager.
Henry Bates, and Mr. Pospichf.1 and explained the circumstances of his
illness and how long it had taken to drfv'e from Florida. At this time he
submitted two doctor's certificates. one from the doctor in Florida and the
other from his Toronto physician. Both certificates appear to be in standard
form and contain no explanation of the nature of the Grfevor's illness. As
such. they are of limited probative value. On the same day, the Grievor I
was given written instructions to submit a letter from his doctor statino
in substance that he was fit to return to work and the explanation for his I
absence. AS the Grfevor had already presented evidence of his fitness for I
work. he wrote to Dr. Schlitt whom he had seen fn Florida for certificatfon
of the nature'of his illness. Dr. Schlitt replied on February 26th with a ?ertcr 1
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which set out that he had seen the Grievor on Fehruary 2nd and February 8th. ,~ > .- ',i ., ~... .,
that he had’given’him a’korticosterold injection and~prescribtions and that he xas
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unable to travel due to pain. However. the Employer refused to consider the
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contents'of t&s 'Tetter as its had~already takenaction on February l&h 'to I
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suspend the Grievor for three days and to deny him‘sick pay, for the week of his
absence.
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The Griever submitted that lie was Tegit&tely ill during the
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period February 5th to .February 9tk &id, thekifgre. was unable to report for ,:
work. In the‘alternative, itwas submitted that the Grievor was-entitled to take
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vacation leave'which was.imprope.riy denfed for the period in question.
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The Grievor's position with respect to‘vacation iea~ve is untenable. . . ._ *.'
The Grievor claimed that,:unless notified that his request for.-vacation leave '
has been denied, an ‘employee is entitled to.assume~thht his vacation preference
has been granted. fin this case, as the Griever heard nothing from the time _. '.'
he applied for vacation ieave in April 'or May~until.December whenhe I
applied for advance pay, he was entitled to assume that his request for
four consecutive-weeks: vacation leave had 6een apbroved. According to the ., , r
Employer, on'the other hand; request for vacation leave had to be approved _i
by a supervisor. Since the 'Grfevor's request for leave was not aiproved. bu: ‘was
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specifically denied in December, he was not entftled to the leave claimed.
: . I The evidence wfth respect to the approval of vacation leave is far
from clear. The Goard simply is not persuaded thati'as a matter'of practice, . .
employees who receive no response to their requests for vacation ieave are
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entitled to go on vacation without finding out first whether leave has been grante
However, even if this were the case and the Grievor was somehow given the impressi
that his vacation leave request had been granted, he was advised in Cecember tha:
leave could not be granted for four consecutive weeks. In such circumstances, the
Grievor claimed that he was entitled to take vacation leave as planned. This
fs clearly incorrect. The 06vious answer is that the Grievor can try to
change the Employer's decision. But if the Employer maintains its position..
as in this case, the employee must comply with the decision and grieve.
The Board understands that this solution is not likely to satisfy an
employee who had planned'on a, particular,vacation for some time and who
had had that vacation approved. However, the Employer is entitled
for legitimate bustness purposes to schedule vacations and to alter schedules.
Nothing in the collective agreement derogates from that right. Accordingly,
when the Employer changes the schedule. the employee is bound by that change
unless reversed in tfie grievance procedure (Re Black Diamond Cheese and
Canadian Food b Allied Uorkers. Local P-688 3 L.A.C.(zd)lSl (Brandt)).
Accordingly, the alternative argument that the Grievor was'
entitled to take the time in question as vacation leave must fail. The Soard,
then, turns to the Grievor's su6mission that he was absent due to illness
durfng the relevant period and, therefore, that there was an improper denial
of sick leave and imposition of discipline~in regard to his absence:
The issue, therefore, is whether the Griever was legitimately i;: fr:
therefore.unable to travel from February 5 to Februa-y 9, 1979. Cbviously, if c?i
Grievor was legitimately ill. he was entitled to sick pay for the period in o.jes:l
and cannot properly be disciplined for his absence. The onus. of course. resfs *
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'the'Grievor to' establishrthe,legitimacy of his i,ll,ness (e.g. Re 9t; ,jean de.9rebe2,
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Hoipitai a,nd'Canadian Unionof Public Employees, Local 1101 16 L.A.C.(2d)19g ',zran: 8 i:::;., r. ', .*.. !. ,I/',( " / ; ;: ;.
in' this‘case, the Griever claimed.that he was too ili'to travel from , .‘ :, ',' :
February 5th to'February 9th. ,The preponderdnce of the evidence, however, does- ., ._ :; 4;
not support his claim.' Firstly, the.Grievor claimed illness in respect of a ...
period of time,& which vacation leave ,had be6.n d,en,ied. Secondly, there were~ .:I. ',
conflicting'stories told'by~..the Griever's son.and-,-dau.ghter as to the Griever's
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Uhereabouts and there MaS ,a'conflict between the explanation given for the .:
Grievor's. absence by his sown (b+ck,injury] and.by the Grfevor'himself
(arthritis'in the handsI:- (It should be noted that while stateejts by the
G&&or's son are properly admissi61e against,the Grievor (R. .v. Strand Electric .’ : - ‘. ,‘.
g.. (19691 1 O.R. 190, (lg6gj,2 C.C..C. 2641. ther4was.no,allebation that his I'
daughter was similorl;y instructed and so herstatements cannot be used against
him.) Th;rdly,'there was.evidencethat the.Grievorwas driving in FTorida I
during the time he claimed to be too ill to travel. Final,ly. three of the four . I .,,
medical certificates-which the Grievor submitted~were of, little or no probative
value., One of the.certificates was issued by the Grievor's Toronto physician,
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'who did not see the Griever during the relevant period and yet was able,to state a. '
that "he has recovered.from his recent illness". More importantly. this . '1.~.
certificate and,:in pasficular,. the. two letters sent 'from Florida were standard
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"forms "permission to.return to work/scFiool" to which only the patfent's name
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and relevant dates are added.~ They contained no information as to the nature 'LI :
of the illness. In fact, the GrIevor admitted that in Florida the fons were
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.I completed by an employee in the doctor's office. Obviousiy,'these "certificate:,
.are of no assistance in a,ssessing the Griever's claim of illness. 3e
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certificate the Grievor submitted in response to the ~TPioyer’S written I ~__
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request for a doctor's letter is of more value (although the Employer
peremptorily refused to consider it). Although this letter contains considerably
more information than the previous communications from the same man (whom.
it appears, is not an M.D. but presumably an Osteopath). it is, of course, hearsay
evidence. (Had.&. Schlttt been a medfcal doctor licensed to practice in
Canada, the letter would not be considered to be hearsay (Evidence Act, R.S.O. i57
c.151. s.5211. 'Although the Board exercised its discretion to admit the letter.
principally because the Employer requested it, as hearsay evfdence. the
( certificate cannot be used as the sole basis for a finding of fact (e.g. &
Leduc and Treasury Board (Revenue Canada) 24 L.A.C.(2d)25 (noallf)). Accordingly.
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if the Board were to accept the Grievor's own assertions of illness. the
certiffcate could be used to corroborate that clafm. In this case, however,
fn view of the inconsistencies in the evidence, the Board cannot accept the
Griever's assertion that he was too 111 to travel. Therefore, the certificate
alone cannot prove the Griever's claim when all of the other evidence would
tend to contradict it.
Accordingly, the Grievor has not satisffed the onus of proving
that he was'legitimately ill and therefore unable to travel during the period
fn question. Accordingly, the Employer was entitled to deny him sick leave
in respect of this time and to impose discipline for overstaying his
authorized vacation leave. In the cfrclmrstances. the Board cannot conclude
that a three-day suspension <s excessive. Undoubtedly, the Grievor was
frustrated at the denial of vacation leave which he had expected would be
granted. However, he was not justified in overstaying his leave of
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absence but was requiied to report for work at the end off his
approved vacatfon leave. I .
DATED AT TORONTO this 25th day .bf September, 1981.
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"I dissent"
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IN THE MATTER OF AN ARBITRATION
BETWEEN: THE CROWN IN RIGHT OF ONTARIO (MINISTRY OF HCLSI!:C)
and
MR. MARTIN BUICK
I find that I must dissent from the decision of the
majority award. The main reason for my dissent is that the
c Employer did not give the.grievor an opportunity to provide the
appropriate medical reports. If the Employer was not satisfied
with the notes that Mr. Buick produced they should have told him
what type of report they expected, and not simply disciplined him.
The position taken by the Employer in this case is rather
unusual: first they criticize the grievor for not producing
suitable medical reports and then when he does produce one, after
being disciplined, the Employer'then objects to it on the grounds
that it is hearsay. One must wonder in this case, if anything
would have satisfied the Employer.
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For this reason,
I would have upheld the grievance.
Respectfully submitted