HomeMy WebLinkAbout1981-0407.Ross.83-06-14 Decision180 DUNDAS STREET WEST, TORONTO, ONTARIO. M5G lZ8 -SUITE 2100 TELEPHONE: 416/598- 0688
407/81
IN THE MATTER OF AN ARBITRATION
Under
THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT
Before
~ THE GRIEVANCE SETTLEMENT BOARD -
Between; OPSEU (Brenda Ross)
-
Grievor
- and -
The Crown in Right of Ontario
(Ministry of Municipal Affairs and Housing)
Before:
Employer
P. G. Barton Vice Chairman
H. Simon Member
D. Olsen Member
For the Employer: A. P. Tarasuk
Consultant
Central Ontario Industrial Relations Institute
Far the Grievor: S. T. Goudge, Q.C.
Cameron, Brewin & Scott
Barristers & Solicitors
(until July 15, 1982)
Hearings : January 29, 1982
April 29, 1982
July 16, 1982
-August 30, 1982
November 29, 1982
January 24, 1983
April 11 &i 15, 1983
-2-
DECISION
On June 24, 1981 the Grievor, Classified as a Clerk
4 General in the Ministry of Housing grieved:
"That I have been released without just
cause (effective June 29, 1981) .'I
As can be seen from the number of days spent in hearing
this matter, it is a reasonably complicated one. In this Award
I will refer to what I consider to be the highlights of the
relevant evidence, but will not detail all of the evidence
presented. Although the matter is complicated, the presentation
of the
case was made more difficult because Counsel hired by
the Union to present the case on behalf of the Union, lost the
confidence of the Grievor who indicated on July 16, 1982 that
she did not wish him to speak for her. Because he
was employed
by the Union and not by the Grievor, he chose to remain in
attendance and watched helplessly as six further days of evidence
were heard. Much of the evidence presented during that time,
while relevant, was probably led unnecessarily and I am confident
that if counsel had not been put in the position in which he was,
the matter would have been resolved about one year ago.
as it may, however, the Grievor did have a firm grasp of all of
the factual details of her case, if not the legal implications
Be that
of those facts, and presented these details
in a thoroughly
exhaustive manner.
The core of this matter involves a job offer made
to the Grievor on June 3, 1981 by letter, received by her on
June 4, 1981. In that letter she was given until June 8, a
Monday, to respond to the offer. The question which the Board
-3-
has had to decide is basically whether or not she ever intended
to accept the job mentioned in the letter of June 3, or any other,
or whether she in fact never intended to return to work and
abandoned her job. Thus the events of the month of June, 1981
are crucial to the decision. Before they are chronicled however,
a considerable amount of background should be set out. At the
time these problems arose the Grievor was working in the Financial
Systems Co-ordination Section, Financial Branch, Ministry
of
Housing. The function of this branch is to deal with business
arrangements entered into by the Ministry, process and control
documents concerning them, and send out information by way of
computer reports on paper or film. Much of the work involves
preparing materials for entry into computers and this aspect of
it is done by Input-Output Clerks. The Grievor came into her
position with the Ministry in July of 1979, from the Ministry
of Transport. She came in as a result of a job posting for
which she applied and came with a strong recommendation from her
previous supervisor.
with the Ministry of Transport, she had suffered from a considerable
During the last period of her employment
number of physical ailments, some of these allegedly caused by
allergic reactions to the environment in which she worked. As far
as she was concerned, the source of most of these problems was the
presence of excessive smoke in the working environment. When she
applied for the present job in July of 1979, she did not disclose
on her application form that she had suffered these illnesses or had
allergies, and her previous supervisor seems to have agreed to
avoid reference to these problems in order to faciliate her move
-4-
to a different environment.
Although it was in no way a condition of her employment
that she be placed in a smoke-free atmosphere, it was the case
that when she started to work for the present Ministry, she was
in a smoke-free environment and her attendance record during the
balance of 1979 was perfect. Unfortunately, two sections of the
branch were merged in 1980, and she found herself working in an
environment where she was subjected to the presence of other
employees who did smoke. Her medical problems flared up, and
were aggravated by the fact that she strained her back during
1980 and found herself unable to do any lifting, During the
working year of 1980, she missed approximately 60 days of work
because of an assortment of medical problems, and her relationship
with her employer began to deteriorate. The employer was aware
of her problems with allergies, and with her back problem, and
her absences caused problems with respect to getting the work
done. Various meetings were held during 1980 in an attempt to
re-allocate the workload among the Input-Output Clerks, but she
did not react well to these attempts to manage the office. In
particular she seems to have personalized all suggestions as to
how her work might be improved into personal attacks. She seems
to have considered that the employer was not taking her health
problems seriously and seems to have become excessively defensive
about disclosing to the employer what these problems were.
She was also having a considerable difficulty with her
supervisor, K. Franey, no longer with the Ministry. It is clear
that there was a considerable amount of conflict between these
-5-
two persons, which conflict is documented in a series of memos
and written retorts from the Grievor to Franey and visa versa.
Indeed, her relationship with her supervisors during this period
is best illuminated by a series of excerpts from some letters
written by her to various supervisors during this period.
On January 21, 1981 for example, writing to K. Franey,
she says, -- inter alia, "I think that it would behoove you and
the entire section, as I have mentioned before, if you maintained
a business atmosphere."
thab you would try and behave in a manner more suitable to your
In addition she indicates" I also hope
position for everyone's sake."
On January 27, 1981 in a letter to R. Mani, the person
above K. Franey, she indicates:
"Finally, as my thinking about my behavior,
let me remind you of your record in relation
to other employees. Since 1979, one of your
staff suffered a nervous breakdown, another
suffered a physical collapse, still another
became a victim of an undisclosed ailment
causing him to be unable or unwilling to
communicate. ... I think that the practices
of management connected with the Finance Branch,
in general and Financial Systems, in particular
should be investigated."
On March 23, 1981 writing to Mr. Veskimets in response
to her being scheduled for a medical examination pursuant to
Article 51.09 of the Collective Agreement, she wrote, inter alia:
''I suggest that you might benefit from
arranging health examinations for the
following:
1. Lorne Boats
2. Brian Kimberley
4. R. Mani
5. K. Franey
6. Sonja Faryna
and of course yourself . . . 'I
-6-
It might be noted that all of these persons are in a supervisory
position over the Grievor.
On January 9, 1981, the Grievor wrote to Brian Kimberley
concerning a staff meeting held on January 9:
"Although this meeting was called by
R. Mani you are obviously the Chairman.
I must say that I found your behavior
reprehensible.
... You are either
abysmally ignorant or grossly insensitive."
Finally, on January 26, 1981, dealing with the same
staff meeting, she writes:
"Perhaps you might even consider taking
a course in sensitivity training."
This is directed to a supervisor above R. Mani,
All of these excerpts are included in this Award to
show that by the spring of 1981, the Grievor's relationship
with the Employer had degenerated to such a state that the two
were communicating by way of memos. Additionally, the Grievor
had filed a considerable number of harassment grievances, all
of which were being resolved in one way or another during this
period. As far as her physical condition was concerned, it had
deteriorated from the summer of 1980, and she last worked in
January of 1981. During the period from the end of January 1981
urltil June of 1981, she did not work and was engaged in a series
of skirmishes with the Employer concerning medical certificates.
Much of her problems were caused by the fact that she is,
as She states, a human rights activist, and her response to perceived
criticism by supervisors or to apparently inequitable behavior by
the Employer toward other employees was to take a firm stand and
give no ground, fully documenting her fight. As far as her own
-7-
response to problems was concerned, during this period it was
quite clear that if she had a difficulty she would file a grievance.
Accordingly, from the time she started work in 1979 with the
Ministry until the present time, she has involved the Ombudsman,
the Ontario Human Rights Commission, the Workmens' Compensation
Board, the Deputy Minister, a Member of Parliament, her Union Repre-
sentatives, and an organization called the Justice Information
Foundation. At the same time she has been seen by at least one
chiropractor, one or two family physicians, a psychiatrist, and at
least two doctors at the Employee Health Centre run by thegovernment.
As early as September of 1980 she requested a transfer
frorq the environment in which she was working, which transfer
was supported by her Supervisor, R. Mani. As far as she is
concerned, that transfer was sought because of the smoke problem
and its attendant affect on her health. As late as April of 1981,
she was requesting a transfer from the environment.
While she was off work from January of 1981 and while
she was under the obligation of producing medical certificates
to support absences and therefore to obtain her pay cheques, she
was fighting the Employer and fighting for her position on a
number of fronts as set out above. She was scheduled for the
compulsory health examination in April of 1981 but missed it for
medical reasons.
On May 7, 1981 she asked for a vacation time, in the
normal course of events, on September 7-11, 1981. Two days before,
May 5, 1981 she had been advised by the Employer as to her options
concerning long term disability benefits, but did not respond and
had not responded by the time of her discharge. On reflection, it
-8-
may well be that this decision not to go on long term disability
was a mistake as far as she was concerned, but her refusal to do
so is some indication that she was not willing to give up her
job.
On May 28, 1981, she missed a meeting that was scheduled
to discuss her work. The following day she attended a 4 and 1/2
hour session concerning an harassment grievance she had filed.
pn May 29, 1981 she filed a doctor's certificate indicating that
she was ready to go back to work.
prepared the certificate with some trepidation, because she was
in fact continuing to see the doctor as well as others during
this time.
It appears that the doctor
On June 2, 1981, a meeting was held concerning her
work. This meeting was called by L. Lauder, Manager of Personnel
Services for the Ministry of Housing. Included in the meeting
were the Grievor, her Union Representative, I. Oram, and R. Mani,
her supervisor.
accommodate the problem she had with lifting and the meeting
turned into a discussion of a job as a File and Tables Clerk.
This job would have been in a lower classification than the one
that she was in at the time, and would have led to red-circling
and ultimately a reduction in salary. During this meeting, certain
other wishes were made clear by the Grievor as to the sort of
work which she felt she could do and she made it clear, inter alia,
that she did not feel that she would be able to work near people
who were smoking, near machines which shredded paper, or near
VDT display units.
Management had arranged this meeting to try to
--
-9-
Following the meeting management attempted to accommodate
her wishes and on June 3, 1981 a letter was prepared which was
delivered to her on June 4, 1981. The first paragraph of the
letter indicates that following a discussion of the alternate
position, certain other additional health problems were pointed
out to management. The second paragraph continues:
"As you know Brenda, we are anxious to
have you return to work and you also
indicated that you feel ready and wish
to return as soon as possible. We have
accordingly taken a close look at the
position we spoke of yesterday, the
Table Maintenance Clerk, and, in order
that you may return right away, we will
modify the position to accommodate your
physical limitations. Specifically, you
will not be required to operate the video
display terminal, and we will ensure that
you are situated away from printing equipment.
In addition, we will ensure that you are
not seated close to staff that smoke.
Every reasonable attempt will be made to
ensure that you are not exposed to smokers.
Would you please, then, report to Mr. Mani
on Monday, June 8, 1981 at 8:45 a.m."
This letter was delivered by an employee of the Ministry
to the home of the Grievor on June 4, 1981. Unfortunately at the
time the messenger arrived, some religous people were at the home
of the Grievor and she became quite incensed at the way in which
the letter was delivered. Although the messenger wished to take
a reply back to management, she indicated that she was not prepared
to respond at that time,
During some of her troubles with her Employer she had
received the aid of a number of representatives of OPSEU. Ivor
Oram had beeq at the meeting on June 2, and had acted as her
- 10 -
Spokesman on a number of other occasions. She called him on
June 4, the day she received the letter, and told him that she
had decided to send a letter to Mr. Lauder. It was clear to
her and to Mr. Oram, that'the letter
of June 3 had to be properly
answered and Mr. Oram undertook to do so. She was in fact ill
on June 4 and had a doctor's appointment on the following week
qnd wa$ attempting to obtain other doctors' appointment for
early the following week.
On June 5, 1981, she wrote to Mr. Lauder. Most of
her letter, which was received by Mr. Lauder on June 9, contains
her diatribe against management for the way in which the letter
~f June 3 was delivered. She described the situation as "provoking,
Stressful, embarrassing, and an invasion of privacy." She also
said :
"I tried to contact my union representative
Ivor Oram, but he was on his lunch hour. I
asked Mr. McLean (the messenger) to leave and
to tell Reg Mani that I could give no reply
at that time."
Mr. Oram attempted to contact Mr. Lauder on Friday
afternoon, June 5, but was unable to reach him. On the following
week, he did in fact reach him on June 9. Mr. Oram's version of
the conversation with Mr. Lauder is that he told Mr. Lauder
on
June 9 that the Grievor would be replying in writing through
Mr. Orarn to the letter of June 3. He told Mr. Lauder that she
had doctors' appointments during the week in question and that
she waq not refusing the job. According to Mr. Oram, Mr. Lauder
said in essence "We are serious about the job, she better respond,
unless
we receive medical certificates we will assume that she
isn't taking the job." It might be noted here that on June 5, 1981,
- 11 -
the Grievor went to see a psychiatrist Dr. Hajdu.
the Grievor she went to see this person because of stress caused
by her supervisor R. Mani. According to the doctorl she went
to see him for laryngitis. At any event it is clear that she
went to see a doctor on June 5.
According to
It was clear to Mr. Oram, following his discussions
with the Grievor on the 4th and subsequently, that the Grievor
had decided
to return to work and file a new grievance with
respect to demotion. Medical certificates were subsequently
filed for certain visits made by the Grievor to doctors during
the week of June 8 to 12.
The evidence given by Mr. Lauder concerning the
discussion with Mr. Oram on June 9 was that it was considered
as an off-the-record conversation which started quite informally.
The two had discussed matters of this sort previously.
assumed the Grievor was at work but it became clear to him during
the conversation that she was not. They discussed the fact
that the Grievor was very concerned about working for Mr. Mani,
and it was the feeling of Mr. Lauder that this conversation was
a call to make a deal to resolve the whole problem. Mr. Lauder
was concerned about the fact that it was the day after the day
she was scheduled to report to work and was also concerned that
finding an appropriate position would be difficult because of
the fact that she had been unable to find work into which to
transfer earlier, and secondment to another Ministry had been
canvassed without success. Mr. Lauder said "Leave it with me,
if
I can do anything 1'11 be back to you."
Mr. Lauder
He subsequently called
- 12 -
Brian Kimberley, a superior of the Grievors and asked if there was
any way they could make a deal and as a result of the subsequent
discussions it appeared that there were no available vacancies for her.
Unfortunately, because no vacancies became open, Mr.
Lauder did not get back to Mr. Oram, and nobody attempted to
contact the Grievor or Mr. Oram after June 9. The next thing
the Grievor knew was that she received by registered mail dated
June 15, 1981, a letter from the Deputy Minister which reads
as follows:
"In a letter dated June 3, 1981 from Brian Kimberley
you were advised of your reassignment for health
reasons to the position of Table Maintenance Clerk,
effective June 8 1981. The reassignment was
necessitated by your medical problems which have
prevented you from performing the duties of
your position of Input/Output Clerk. You
were also asked to advise either Mr. Kimberley
or Mr. Mani if you would not be able to report
for duty on that date."
"Since you have neither reported for duty nor
contacted your supervisor as of this date,
I can only assume that you have refused to
accept this reassignment. Unfortunately, I
am left with no alternative but to release
you from employment with the Ministry for
reasons of health, effective June 29, 1981."
As indicated earlier, the basic question to be decided
bere is whether or not the Grievor abandoned her position. The
Employer relied upon the abandonment provision of the collective
agreement. Article 25:03. This is a reasonably common type of
loss of seniority clause which provides that if an employee is
absent without leave for ten working days the employee is deemed
to have abandoned the position. The difficulty with the Employer's
position is that the Grievor was on legitimate leave for medical
reasons at the beginning of June. The Employer called the meeting
- 13
of June 3 to discuss a job to
leave. It seems reasonable to assume that, as far as the
Employer was concerned, the leave was to end on June 8, when
she was to start work in the new position. After that date she
could be considered absent without leave if the Employer did not
consent to her continued absence. The letter of June 15, releasing
her from employment, was received by her five working days after
that date. Thus, reliance upon Article 25:03 by the Employer
is not possible since it did not wait for the ten working days
set out therein to pass. The grievance must therefore succeed.
which she could return from this
A second reason why the grievance must succeed concerns
the factual issue of whether or not she abandoned the position.
It might be possible for the Employer to argue that it was unneces-
sary to wait for the full ten working days contemplated by Article
25:03, if in fact it was clear to it before then that she was not
going
t? return.
concerns her normal way of handling problems with her Employer as
set out above, and certain specific evidence which will be detailed,
infra, concerning her attitude toward the offered position.
The evidence most relevant to that matter
According to B. Kimberley, at the meeting of June 2, 1981,
she stated "If she had known (the meeting) was called to discuss
the Files and Table job, she would not have come." She is also
reported to have said
"You should know that I will likely never
return to the Financial Co-ordination Section to work."
When asked whether or not the Grievor, who tended to
write a lot, would normally have either written or phoned concerning
the offer if she was not going to accept it, Mr. Kimberley
indicated "It was odd."
It was Mr. Kimberley's view that he would have expected
the Grievor to come back to work and grieve.
more in her style.
Kimberley did not hear from the Grievor on June 8, he assumed
that she had refused the job outright and made no further inquiries.
That was certainly
What in fact happened was that when Mr.
The evidence of R. Mani, who was in charge of the area,
was that the Grievor had made it clear that she did not want to
work in the same section as himself, but that at the meeting
the Grievor "probably" indicated that she was ready and willing
tp return to work.
The evidence of Ivor Oram concerning the Grievor's
attitude about returning to work is that basically she intended
to return to work and file a grievance. It was clear at the
meeting of June 2, that she wanted a different environment and
new duties n9t involving lifting, inter -- alia.
the June 2 meeting was that it ended with management planning
to get back and see what it could do about accommodating her
His impression of
concerns.
Mr. Oram also indicated that at the June 2 meeting
the Grievor said did not want to work with Mr. Mani and did so
in quite strong terms.
- 15 -
The Grievor's evidence concerning her intentions is
that she decided to have Ivor Oram contact Mr. Lauder because
it was Mr. Lauder who set up the meeting of June 2.
not feel confident about responding to Mr. Kimberley or Mr. Mani
because she had had problems with them in the past and did not
trust, them.
plan
to return to work and file a grievance, as she had done on
several otber occasions.
She did
She wanted time to compose a proper letter and
The Grievor also indicated that she did not call the
Employer on June 4 or 5 because she was very upset and wanted
ta talk to Mr. Oram and have him respond on her behalf.
Insofar as the working environment is concerned, it
is reasonably clear that she stated at the hearing that there
waq nowhere in the office where she felt that she would be able to
work
way that she could persuade them to build a wall around her."
without being exposed to smoke. As she put it "she had no
The Grievor also indicated that at the June 2 meeting,
they offered her a demotion. Management knew that she had a
permanent disability and she told them at that meeting that she
had this disability and would not recover. She also indicated
at the meeting that the Employer had caused her illness and
assumed they were responsible for her. Insofar as VDT display
was concerned, she felt that it was impossible for her to do her
previous job without being near such display terminals. The job
- 16 -
could not, in her view, be done in an area in which other
employees
were not present.
Her response to the job was summed up in one phrase
"If I was going to go back why go back to the old place for
less money?"
Insofar as the June 3 letter is concerned and VD terminals,
she felt that the offer was not good enough because she would
still be close to them,
At the hearing she dealt with the matter of the
June 3 offer and said, in addition to many other things, "AS far as
I am concerned the offer of June 3 was the same offer."
It can be seen from the above that the evidence
concerning her attitude toward the offer contained in the letter
of June 3, 1981 does not provide a clear answer as to what her
intentions were with respect to that offer. On one hand, she
stated that her intention was to return to work and to grieve
her demotion. On the other hand it appears from what she said
in
cross-examination that she was not very optimistic that the
Employer would ever be able to accommodate all her concerns.
There are various ways to answer a request. One way is
Another way is to take the request and make to answer yes or no.
a type of counter-offer, or
enter into a series of further negoti-
ations to try to have the original offer improved. At no time did
the Grievor ever say no to the offered position. It is more in
her style; that she would write a letter complaining about it and
perhaps making certain suggestions as to how the offer night
- 17 -
be improved but her style was to grieve rather than to give up,
If nothing more had happened after June 5 then her writing the
letter to Mr. Lauder, following the passage of time it might
well be a legitimate conclusion that she had abandoned the
fight. The evidence however suggests that she had at no
time abandoned the fight.
the question
of answering the letter of June 3, 1981 to Mr. Oram,
and that Mr. Lauder entered into negotiations with Mr. Oram
which, while not making it unnecessary to answer the previous
offer, deferred the time for a final answer to it. When Mr.
Lauder indicated to Mr. Oram that if he found a suitable position
he would get back to Mr. Oram, it seems to us reasonable to
assume that Mr. Oram could assume that management would take
no further steps in the matter without contacting him. Unfortunately,
Mr. Lauder did not contact him and six days later, the Grievor
found herself fired. We have no evidence as to what Mr. Mani
and Mr. Kimberly were doing to try to contact the Grievor
during this period. It appears that Mr. Mani at least was in
reasonably close contact with the Grievor up to June 4.
We are satisfied that she delegated
In the result, we find that management wrongly assumed
that the Grievor had abandoned her position and lulled her into not
responding to the letter of June 3, by entering into negotiations
between Mr. Oram and Mr. Lauder of the Ministry. Thus we do not
think that it was fair to her to assume on June 15 that she had
abandoned the job and we feel the conclusion reflected in the
letter of termination, that she had so abandoned is erroneous.
Accordingly, the grievance is allowed and the Grievor is ordered
reinstated to her previous position as requested in her grievance.
- 18
She is entitled to retroactive payment of salary and benefits,
subject to the usual concerns about mitigation.
seized of the matter concerning implementation of this Award.
ID should be made clear that we are not reaching any
We remain
judgment as to whether or not her admitted medical problems
were caused by the working environment. That seems to us to
be a medical decision which is not within our competence. Our
sole concern is whether or not she abandoned her job and we have
found that she did not in fact or by operation of Article 25:03.
DATED AT London, Ontario
this 14th day of June,
P. G. Barton
Vice Chairman
"H. Simon"
H. .Simon Membe r
"D. Olsen"
D. Olsen
Member
7: 3130
7: 4424