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HomeMy WebLinkAbout1980-0036.Sandford.81-01-09Between: Ms. Claire Sandford IN THE MATTER OF AN ARBITRATION Under The CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD And The Crown in Right of Ontario Workmen's Compensation Board Before: Professor K. Swinton Vice-Chairman Mr. A. Fortier Member Mr. G. Beaulieu Member For the Employer: Mr. M. P. Patrick Moran, Counsel Workmen's Compensation Board For the Grievor: Hearing: Mr. M. Mitchell Sack, Charney, Goldblatt & Mitchell Toronto, Ontario October lath, 1980 Suite 2100, 180 Dundas St. West Toronto, Ontario F. -2- 2 This is a case involving termination of employment pursuant to Article 4(3)(d) of the collective agreement on the basis that the grievor had been absent for more than five working days without notifying her employer and without providing an adequate reason for her absence. The grievor, Mrs. Claire Sandford, had been employed by the Workmen's Compensation Board since December 9, 1974. At the time of her termination on May 14, 1980, she was a Stenographer in the Sudbury Regional Office. Although Mrs. Sandford worked in the Sudbury Office, she lived with her husband and two children in North Bay. She had been transferred from the North Bay to the Sudbury Office in the summer of 1979, but a neck injury prevented her from driving and she was on long-term disability until December 10, 1979. From that date, she consnuted daily from North Bay to Sudbury by car, a distance of 180 miles round trip. On February 6, 1980, while driving to work, she suffered a mild stroke and demolished her car in a collision. She was hospitalized in Sudbury with an orthopaedic problem for two to three days. She then returned home to North Bay, where she was confined to bed with injuries to her lower back, inner thighs and pubic bone area. As her condition improved, Mrs. Sandford testified that she felt ready to be back at work, although she was unable to undertake the long drive back and forth to Sudbury and she was using a cane to walk. Her reflexes were in a state which made it dangerous to drive. As a result, she applied for two positions with the Workmen's Com- pensation Board in North Bay in March, but failed to obtain them. 2 - 3 - The events giving rise to this grievance began with a statement which Mrs. Sandford obtained from her doctor, Dr. Holmes, dated April 14, 1980. She testified that she had requested a return to work from the doctor as she wanted to start to work again. The statement, on a printed standard form for Accident Benefits Coverage (Ex. 6A), answered the question as to when the patient would be able to resume work with the,date of May 5, 1980. The grievor testified that she called the Sudbury Office on April 29, 1980 and talked with John Regan, the Senior Counsellor, who was then in charge. She explained that she had received Dr. Holmes' certificate stating that she could return on May 5, but her reflexes were not good enough to allow her to drive to Sudbury. Therefore, she,wished to work in North Bay, if possible. Regan then said that he could see no reason why she could not work in North Bay until capable of returning to Sudbury and advised her to ' submit her request in writing. The grievor's subsequent letter (Ex. 6), dated April 30, 1980, stated that her return to work date was May 5 according to the attached medical certificate. She then stated. Unfortunately, I will not be able to travel back and forth from North Bay to Sudbury ad back; my home ana' my family are here in North Bay. Please consider this letter as a formal application for a transfer to the North Bay Area Office. I am capable end willing to work and I know there is work in North Bay that I cc?2 do. This letter was received by Regan onMay 2, 1980 and forwarded to Henry McDonald, Manager of Claims Information and Counselling Services for Ontario, whose office is in Toronto. When Mrs. Sandford did not arrive for work in Sudbury on May 5, Mr. McDonald wrote to her, denying her request for a transfer -4- and warning her that absence from work, in excess of five working days without acceptable reason would constitute abandonment of her position (Ex. 5). .This letter was received on May 7, and Mrs. Sandford immedi- ately sent a reply dated May 8, which arrived May 12. In it, she stated, "I.am fit for work, but travelling will aggravate my condition and upset my'family.life." She'also mentioned that she was still under Dr. Holmes' care and that her.next appointment was May 22, 1980. Mr. McDonald replied to this letter on May 14, stating that as she was fit for work, she had failed to provide satisfactory evidence to justify.her absence since May.5, which now exceeded five days. -Therefore, effective May 14, she was,considered to have abandoned her position with the Board and had terminated, her employment, In cross-examination, Mr. McDonald acknowledged that he was, aware of the grievor's car accident in February. He stated that he made no effort at any time to telephone the grievor nor.to explore what she meant in her letter of May 8 about aggravating her condi- tion by driving. The final evidence of relevance is a letter from Dr. Holmes dated July 24, 1980 (Ex. 11). In it, he referred to the drive from North Bay to Sudbury, stating: I agree that this lady was huving persistent disability with back,pain and left leg and hip pain, which would make driving daily from North Bay to Sudbury, very difficult for her, foZtowing the motor vehicZe accG&nt. I do agree that the long drive would aggravate her condition. This opinion was further elaborated in a letter of October 6, 1980 (Ex. 13), when he again referred to the fact that her condition was aggravated by the long drive to Sudbury. -5- Dr. Holmes was not called asa witness to explain these reports. Mrs. Sandford testified that Dr. Holmes did not realize that she was employed in Sudbury when he first cleared her return to work on April 14, and that she first informed him of this fact when she sought the additional reports mentioned above. The employer rested its case on the application of Article 4(3)(d) of the collective agreement. Article 4(3) reads as follows: 3. Loss of Seniority An employee will lose seniority and continuous service if he: (al is discharged and the discharge is not subsequently reversed (bl voluntakly temrinates employment (cl retires on superannuation or is retired at age 65 Id) is absent from work in excess of five IS) working days without reason acceptable to the Employer or without notifying the Bnployer, unless such notice was not reasonably possible lel fails to return to work foZlowiizg a layoff within seven (71 calendar days of being notified to do so, by registered maiZ, rJithout just came. It hit1 be the responsibility of the employee to keep the Employer informed of his current address Cfl is laid off for a period longer than twenty-four (241 months, or for a period longer thrm that of his seniority, in the event that his seniority at the time of layoff is less than twenty-four (24) months. The employer has argued that Mrs. Sandford was absent,in excess of five days after the date of May 5, when she was expected to return to work, and that she has failed to provide an acceptable reason for that absence. The employer relied on the medical evidence stating that the grievor was fit to return to work on May 5 and assuned that she did not return to work because the contents of her April 30 letter indicated that she wished to remain in North Bay with her children. This was not in the employer's submission, an acceptable reason for her absence. - 6’- Counsel for the grievor submitted several alternative arguments to show why the grievance should be allowed. He argued that the employer's reliance on the termination clause was untimely, as five working days had not yet elapsed when the employer deemed the griever's employment to have terminated. Alternatively, he argued that a clause such as Article 4(3)(d) is not applicable in cases involving prolonged absences. If the clause does apply, he then argued that the grievor had reasonable grounds for failing to attend at work and, finally, that if the clause applies, it operates only to remove seniority, but not to effect termination of employment. In assessing the weight of the arguments put forward by opposing counsel, the Board was faced with a difficult task. There appear to have been distressing deficiencies in the conduct of both the employer and the grievor in this case. On the employer's part, the failure to make any effort to contact .Mrs. Sandford to try to determine the meaning of her letters, particularly the possible medical justification for her absence, raises concerns about the fair- ness of subsequent actions. The grievor, in delaying so long after the initial medical report to supply the employer with further details of her medical condition, causes some doubt as to the sincerity of her claim that she was unfit to work, yet desirous of doing so. In considering the grievor's claim that Article 4(3)(d) has been improperly invoked by the employer, it is important to clarify the issues. The clause requires an employee to give notice to the employer of an absence, as well as an adequate explanation for the absence, The.first issue in this case is whether the grievor was required to give notice at all. The grievor had been absent on a long-term basis because of her medical condition, and there was doubt in her mind, at least, as to the date when she was expected back at work. If she was not expected at work on May 5, then Article 4(3)(d) is inapplicable. - 7 - In considering the evidence, one finds that Mrs. Sandford's testimony was to the effect that she explained her medical condition and her inability to return to work to John Regan in the Sudbury office in a telephone conversation of April 29, 1980. This is uncontradicted by evidence from the employer, as Mr. Regan was not called as a witness. From the grievor's evidence;it appears that she then indicated two reasons for failing to return to work on May 5, despite the medical certificate that she was able to do SO. Those reasons were her medical condition, making driving difficult, and her desire to stay near her children. The first is relevant and significant to the outcome of this case. The second must be regarded as irrelevant to justify a prolonged absence. The grievor 'cannot use her family situation and choice of place of residence to justify absence from work in a case such as this. According to Mrs. Sandford, she relied on this conversation with'Mr. Regan on April 29, concluding from it that she would not be expected at work on May 5. Such a conclusion is defensible, if the Regan conversation did indeed occur. The employer cannot fault the grievor for such reliance, nor start the period in Article 4(3)(d) running, without first giving some notice to the grievor that she was expected to report to work on a given day after . May 5. Even without the Regan assurance to which Mrs. Sandford testified, it would be unreasonable to start the critical period in Article 4(3)(d) running on May 5 in light of the contents of the grievor's letter of April 30. That letter was received in Sudbury on May 2 and in Toronto on May 5. One cannot deny that there is ambiguity in the letter. The grievor mentions her return to work date as May 5, as certified by the doctor. This implies a fit condition. She requests a transfer to North Bay and refers to family concerns, rather *- ,I . - 8- than her medical condition. This would indicate that the grievor did not expect to.be at work on May 5. The difficult question is the employer's obligation on receipt of the letter. On the one hand, inferences might be drawn about the grievor's good health, yet there are others considerations which weigh in the grievor's.favour. The employer knew of the legitimacy of her long-term absence and the valid medical reason therefor. Weighing this information against the ambiguity of the letter, we would conclude that the employer should have contacted the grievor at the time that the letter was received in order to as,k her to explainthe meaning of her letter before triggering the period in Article 4(3)(d). Even if the purpose of the transfer request was unclear, the grievor might well have been unaware of the inferences that might be,drawn from the ambiguous words of her letter, and some contact from the employer would have permitted clarification or, at least, indicated that the grievor was indeed expected at work by the employer. It has been stated in Gates Rubber of Cana& Ltd. and United Rubber Workers, Local 733 (29791, 20 L.A.C. (2dl 2.29 (Kennedy) at 234 that the purpose of a clause such as Article 4(3)(d) is "to petit the employer to make suitabte amangement~ while an employee is absent from work." Reference is also made to the obligation of an employee to communicate the circum- stances of his absence to the employer. In that case, however, the employee had not been away for an extended period of time, and the concern of the employer was the failure of the grievor to give notice as to the length of his proposed absence. Here, the dispute centres, to a great extent, on whether the grievor was expected back to work on May 5, and was therefore required to give notice of her absence or whether she continued on her indefinite (and authorized) period of absence, which required no further notice. -g- - 6‘ On review of the evidence, we would conclude that the grievor should not have been regarded as absent without authorization on May 5 or under an obligation to notify the employer on that date. Such a con- clusion is not inconsistent with the purpose of Article 4(3)(d), as expressed in the &tes case. The grievor's letter of April 30 and her call to Regan indicated thatshe.would not be returning on May 5. Since she had already been away for many weeks, there could hardly be said to have beenany interference with the employer's.operations when she failed to report on May 5. Circumstances did change, however, with the employer's letter of May 5, which was received by the grievor on May 7. .That letter must be regarded as putting the grievor on notice that she was indeed expected at work within a five day period after receipt of the letter (i.e. May 8) or that she must provide a satisfactory reason for her continued absence. From that date, she had an obligation to notify the employer, and she complied with her letter of May 8. The employer rejected the explanation however. Mr. Mitchell for the grievor argued that the employer activated Article 4(3)(d) too early, in that the employer notified the grievor that she was deemed to have terminated her employment on May 14th. This date was not one in excess of five working days, as required by the Article, since May 14 was the fifth working day after May 7th. In so arguing, Mr. Mitchell relied on the decision in Dominion Stores Ltd. ano! Retail, Wholesale and Deparhent Store Union, LocaZ 414 (unreported, October 18, 1979 - Hinneganl. In that case, a clause comparable to Article 4(3)(d) was held to be inapplicable because the employer acted against the employee on the third day, when an absence was to exceed,three days before the clause took effect. i ‘i - 10 - While this Board could follow the Dominion Stores decision here, we are not prepared to decide this case solely on the technicality that the employer may have acted one day early. The grievor would not have reported Mayo 14 or 15, so it must be asked whether a fortuitous few days delay by the employer would-have resulted in the grievor's termination under the clause. On the facts of this case, the Board does not believe that such action would have been justified. The grievor was required by the employer's letter of May 5 to report to work within five days or to provide an acceptable reason for her absence. Notice was given by the May 8 letter. The question is whether the reason given was acceptable. The test of acceptability is not a matter solely within the discretion of the employer. The employer must not act unreasonably;discriminatorily or in an arbitrary fashion in con- sidering the acceptability of the reason I!km and Ministry of Revenue, l/76 (BeattyJ~at 9). In considering the employer's treatment of Mrs. Sandford's letter of May 8, it would seem that the,consideration given thereto was unreasonable, although again, we should state that Mrs. Sand- ford could have avoided some of the problems herself by a telephone call or more detailed information. This letter stated that her condition would be aggravated by driving, and that information is important in the context of this case. It was sent by an employee who had a history of back and neck problems (and she had been absent from July to December, 1979 because of them). She had been involved in a very serious car accident a few months earlier, and the employer knew that she had been commuting a great distance before the accident. The grievor mentioned, as well, that she had a doctor's appointment scheduled in two weeks. In light of these facts, it seems un- reasonable that the employer failed to make any effort to contact the grievor to seek some clarification of her letter or perhaps to request more detailed medical evidence to clarify her condition, before acting to terminate her employment. i ’ - 11 - It might be suggested that it was unreasonable for the grievor to refuse to relocate so as to work in Sudbury, since she was physically capable of doing so, except for the commuting. It would appear that if she lived in Sudbury, she would indeed be fit to work. However, that aspect of the grievor's location does not seem to have been an issue in the employer's mind in this case. No effort was made either to dis- cuss Mrs. Sandford's medical condition or,her location and its bearing on her ability to work. Prior to her accident, it had been accepted that she would commute to Sudbury. No one objected to her efforts .to obtain alternative work in North Bay while convalescing and suggested 'that she should return to Sudbury. This suggests continued acceptance by the employer of the grievor's inability to work in Sudbury because of her medical condition. If the employer's expectations had changed by May 5 and her services were now desired in Sudbury despite her commuting problems, then the employer should have made this clear to her in advance. Therefore, in considering the evidence at hand, we conclude that the grievor had an adequate reason for failing to appear for work by May 14,and the employer cannot rely on Article 4(3)(d) in these circumstances. In reaching this conclusion, we are not required to canvass Mr. Mitchell's alternative arguments. In conclusion, the grievance is allowed and the grievor is to be reinstated forthwith to her job as a Stenographer in the Sudbury Office. We have no jurisdiction to reinstate her to the North,Bay Office, as she - 12 - requested in the grievance form. The Board was requested to retain jurisdiction to deal with matters of compensation arising out of the implementation of this award. It is not necessary for the Board to do so for the following reasons. Up to the date of hearing, Mrs. Sandford had not shown herself to be available for work at her place of employment in the Sudbury office. She was unable to make the drive to Sudbury, and she had made no effort to relocate temporarily in Sudbury so as to be able to work. Therefore, she is not entitled to compensation for the period between the date of termination and the date of the hearing. Mrs. Sandford's evidence does not give rise to any inference that she would have been available for work in Sudbury during the time after the hearing. The inference which can be drawn from her evidence is that she wishes to work in North Bay, where she lives, rather than Sudbury. Otherwise, she might have made greater efforts to return to Sudbury. There can be no entitlement to compensation from the employer for a period during which she was not available for work in Sudbury. Until she shows herself ready to resume work in Sudbury, she cannot claim compensation. The effect of this award is to put her back to the position in which she found herself in April, 1980. She is an employee of The Workmen's Compensation Board, and she has the opportunity to return to the Sudbury Office if she shows that she is able to do so. Dated at Toronto this 9th day of January 1981. qA& P ro es I concur Mr. A. Fortier Member I concur Mr. G. Beaulieu Member