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HomeMy WebLinkAbout1982-0537.Jones.84-09-13*NTRAlo CROW EMPLOYEES GRIEVANCE SETTLEMENT BOARD IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE~SETTLEMENT BOARD Between: Before: For the Grievor: For the Employer: Hearing: OPSEU (Jeanette Jones) Grievor - and - The Crown in Right of Ontario (Ministry of Correctional Services) Employer E. B. Jolliffe, Q.C. Vice Chairman L. Robbins Member P. D. Camp Member P. Cavalluzzo, Counsel Cavalluzzo, Hayes & Lennon Barristers & Solicitors J. Zarudny, Counsel Crown Law Office Civil Ministry of the Attorney General June 21, 1984 (written arguments subsequently filed) - l- SUPPLEMENTARY DECISION MS. .Jeanette Jones was dismissed by the Ministry of Correctional Services on October 1, 1982; she grieved on October 4; her grievance was referred to arbitration on November 18; it was heard on January 20, February 21 and, April 15, 1983; the majority decision of the Board is dated August 2, 1983. .,; The concluding paragraphs of the majority decision were as follows: This decision is that the griever shall be reinstated as a Correctional Officer 2 at Maplehurst as soon as one of her physicians certifies that she is fit and able to return to work. Further. the griever is entitled to.sick pay under -the provisions of Article 51 up to a total of 124 days, including those days prior to October 1 on which she took sick leave. It would appear that under Article 51.3 she is entitled to another six days of pay in 1983. Thereafter, since her dismissal was without just cause she is entitled to full pay to the day of her, reinstatement,, but not after September 15, 1983 if her physician does not prior to that date certify that she is fit and able to return to work,a proviso which doesn't affect her right to reinstatement. We retain juris- diction to determine any problem in irii$lementing this decision and will hold a further hearing if either party so requests the Registrar. By notice dated October 28, 1983, the Deputy Attorney General made application in the Supreme Court of Ontario (Divis- ional Court) for judicial review of the Board's decision.' The Record of Proceedings was supplied to the applican't on January 11 I 1984, but as of this date, the result of the application is not yet known. On September 15, 1983, the griever had been reinstated in her former position at the Maplehurst Correctional Institut on. BY letter to the Registrar of the Board. dated January 10, 1984, counsel for the griever requested that a further hearing be held "as the parties cannot reach an agreement as to the implementation of the decision." A further hearing was duly held by the Board on June 21, 1984, at which time certain evidence was presented and it b4a.S agreed that further arguments in writing would be filed by both COUtlS‘al. This panel of the Board met on July 10 to consider such arguments as well as the evidence. The Only issues argued by the parties relate to the amount of compensation due to the griever as a result of the Board's decision that she was dismissed without just cause. The basis for this application was correctly stated in the argument by counsel for the employer as follows: - 3 - Essentially, the Griever's position, taken through counsel, 'was to request that the Board clarify when, on the evidence, the Griever's sick leave benefits would have expired and when her "full pay" wuld have commenced following termination of any available "sick pay" (at 75%). In addition, the Griever requested that the Board include at this time as part of the award compensation for several "lost opportunities", "=lY I in respct of statutory holidays, lieu days, overtime, vacation, lost free time to attend hearings, and shift premiums. In addition, the Q-ievor requested that the board award interest on the axant of compensation owing. The oral argument made on behalf of the griever had been that she was entitled to be placed in the same position she would have been in if the employer had not breached its obligations to her. Counsel for the Employer submits: in deciding that the griever should receive "sick pay... up to a total of 124 days" and thereafter "full pay to the date of her reinstatement," the Board thereby .issued a decision in respect of both the reinstatement.and compensation issues, and therefore "the Board is functus officio and without jurisdiction to entertain further or additional claims for compensation." Argument for the employer then continued: It is stiitted that while the Board is fun&us in fixing the elements or standard in respect of the compensation issue, it may be open to the Board to advise the parties as to the relevant dates, determined by the bqard on the evidence but possibly not expressed in the award, in order to assist the parties in making the arithmetical calculation required by the award. The relevant dates in -this case would be the date when the Griever's "sickness" for - 4- the purpose of qualifying for Article 51 benefits conrmenced (following her termination effective October 1st. 1982) secondly, the date when the "sickness" ended; and thirdly, the dates when the Griever thereafter was fit and able to perform her duties. For two reasons, we do not think thq..employer's wi.@.t.ial submission is well-founded. First, the Board was aware that the parties might have difficul'ty in agreeing on compensation (as to which sufficient information wa.3 necessarily unknovn in the early part of 1983) and thus decided that jurisdiction should be reserved to determine "any problem##in implementing the decision. -The Board did not become functus officid in respect of problems which' w&-e insoluble at the time but which in fact have since arisen. Second, the' term "full pay" received from the Employer an unduly narrow and restrictive. interpretation. Such benefits =.S overtime pay, shift premiums and the like are certainly part of the pay package negotiated between the Union and the Employer and embodied in their collective agreement. To exclude them from "full P=Y" would simply reduce to that extent the pay of an employee found to have.bee" unjustly discharged. The Clear meaning of the Board's decision was that the griewor should be "made whole" and that she was entitled to full compensation, not partial compensation. This is consistent with the esteblished ..<;,'d., jurisprudence, which is, for example, explained by Professor -5- Weiler in Re International Chemical Workers, Local 346 and Canadian Johns Manville Co. Ltd. (1971) 22 L.A.C. at pages 397- 398 : Stated in the abstract, the relevant principle is quite clear. 'Ihe purpxe of damages for breach of contract is not to punish but to compensate, and the function of compensation is to place the aggrieved party in a monetary position as near as possible to that in which he would have been had the contract teen performed. Notwithstanding its functus officio argument, the Employer has offered useful suggestions with a view to computing various items in the P=Y package, on some of which the parties appear to concur. Having regard to evidence relating to. the uncertain .ktate of the griever's health and her emotional difficulties at the time, the Board held she was entitled to sick leave of up to a total of 124 days (the maximum allowable under Article 51 of the collective agreement).which would, however, include days prior to October 1 on which she took sick leave. During that period she would, be entitled to only 75 per cent of her -regular ~ rate Of pay. The parties agree that the 124-day period would expire March 23, 1983. However, on her dismissal October 1, the griever was given two weeks' pay, so that the calculation must begin as and from October 16, not October 1. The result is as. follows: -6- Oct. 16-31, I.982 11 shifts @ 75% $ 727.98 Nov. 1 - Dee 31, 1982 45 shifts @ 75% 2,978.10 Jan. 1 - March 23, 1983 57.5 shifts @ 75% 4.153.80 'Ibtal Sick Pay: 113.5 shifts @I 75% $ 7,859 A38 For the period from March 23 the griever was not at work and is therefore entitled to be paid at 100 per cents of her regular rate. The Board had directed that she should be reinstated in her position "as soon as one of her physicians certifies that Shea is fit and able to return to work." The Employer's counsel alleges that such a certificate was not provided until on or~~about September 30, 1983, two weeks after the actual. reinstatement. On the other hand, the griever's counsel alleges that when the Union made inquiries about reinstatement prior to September 15 an official of the Ministry (doubtl.css referring to an intended application for judicial review) said the Board's decision was not being accepted. Indeed, Exhibit 5 (tendered at the hearing of June 21,1984)~ shows that when Ms. Jones reported for. work on September 15 she was given a copy of written instructions issued to "H.S.O. Maplehurst Complex" by Superintendent A.J. Roberts, stating that if she reported for duty during normal business hours she “a.3 to be directed to the Superintendent's office and further stating that (whether or not she brought a medical certificate with her) she W&Y to be informed "that although she has reported for duty and thereby reinstated she will not be allowed .to work and will be -7- required to leave the'institution immediately. on leave of absence with WY until she receives further direction from the Superintendent,". The griever on September 15 signed an acknowledgment that she had received and read the document. In the circumstances described above, the Board's CO"- elusion is that the griever is entitled to be paid, in respect of the period from March 23 to September 15, at the full rate for 124.5 shifts, which is $11.991.84, as counsel have agreed. It must be added, however, that the Employer has raised two questions on which findings of fact are sought: ('1) when did' the griever's entitlement to sick pay.start? and (2) when did her inability to perform her duties stop? As to the first question, the Board's decision was that it started immediately because, although she was at work on October 1, she was then awaiting treatment by a psychiatrist (which had been arranged), antide- pressant drugs had already been prescribed by her ~family doctor, and the letters written by two physicians in November, 1982, .-.. carefully refrained from specifying a date on which she would be fit to work. At the Board's hearings in January, February and. April of 1983, evidence as to her fitness was not conclusive. As to the second.question, the Board decided that as part of her compensation for dismissal she should, after exhausting sick pay benefits, be ~' paid until reinstatement,. but it was stipulated there could be no reinstatement until one of. her physicians -8- certified her to be fit and able to return to work, and the Board further stipulated that she would not be paid after September 15 if such .a certificate was lacking. It will be appreciated that the Board's decision "as dated August 2. AS for the period between that date and September 15 the griever cannot be faulted in view of a statement by a Ministry official that the Board's decision was not being accepted. This is the answer to the -Eli: submission that the griever had "failed to satisfy the onus upon her of establishing that on a balance of probability, she was fit and able to return to her duties..." Actually the onus was on the employer (under Section 19(l) of the Crown Employees Collective Bargaining Act) to make clear to the Union and/or the griever immediately on receipt of the Board's decision that the griever would be reinstated as soon as she produced the required medical certificate. The Employer failed to do so, and the Superintendent's instructions given on September 15 (Exhibit 5) are --- to say the least --- equivocal and ambiguous. _~,_~ There is also the question of "lost opportunities" during the period between October 1, 1982,' and September 15, 1983. At ..Y.' Page 10 of his written argument counsel for the Employer makes the following submission: As noted at page 62 of the extract from the Brown & E+atty text on Canadian &&our Arbitration, the Firestone Steel case (Tab 2), relied upon by the Griever for the 57+=-d proposition that compensation is to >place the I -9 - aggrieved person, as nearly as pxsible, in the position he wuld have been in had it not been for the -unjust termination, is subject to the three qualifications, namely, firstly, that the loss claimed must not be too remOte in the sense that it must be "reasonably foreseeable": secondly, that the aggrieved party must act reasonably to mitigate his loss; and thirdly, that the loss must be certain and not speculative. As noted in the Firestone Steel case at page 20, an award of compensation must relate to "an employee's actual loss, and not a notional loss". The griever's counsel, Mr. Cavalluzzo, agrees with th& principles quoted by Mr. Zarudny from the award in Firestone $teel Products (1974) 6 L.A.C. (2d) '8 at 19 (Weatherill) but denies that the griever's claims are speculative. The so-called "lost opportunities" refer of course to statutory holidays, over- time, shift premiuims and vacation leave. The employer's argu- ment is that there is insufficient evidence the griever would have qualified for such benefits if she had not been dismissed. 0" the other hand, the griever testified in support .of her claims, and there was no evidence to the contrary.' Her counsel's summary includes the following statements: It was established at the hearing that she would have worked the number of shifts set out in Exhibit 3 had she not teen terminated by the employer. Not only was this evidence uncontradicted, it was verified by the employer lzefore the Board. 'Ihere was also evidence that the griever would have received shift premiums and statutory holiday pay (or "in lieu" tinefits) based on the shifts which she would have worked had she not been terminated. lhis evidence was also uncontradicted. Indeed, it is noted that the employer' agreed on June 21st, 1984, that had the griever not been terminated she would have been entitled, and would have received, thirteen days of vacation during the period in question. The - 10 -~ griever s&its that in determining the quantum of sick pay and full pay that she should receive, the Board may properly and should, consider all of the compensation she would have received but for the employer's unjust termination. VU11 pay" absent this compensation is not full pay. It is further stiitted in reply, that a Board of Arbitration may also, in determining coqxnsation, consider the loss of various opportunities, including overtime opportunities, whether or not the applicable collective agreement sets out any specific entitlement. The Board is entitled, when determining whether or not a griever should receive compensation for a lost opportunity to consider the griever's past and likely prospective enjoyment of the particular opportunity. The griever's testimony, which was uncontradicted &fore the Board, was to the effect that she regularly takes advantage of six overtime shift~opportunities a year. It was also uncontradicted that the employer regularly offers overtime opportunities and did so during the period in question. The griever suhnits that in these circum- stances the Board should award the overtime requested. According to the griever, the holidays on which she would have worked in accordance-with her schedule numbered five: April 15 and 18, May 23, July 4 and September 5, all in 1983. Premium P=Y at $96.32 for each holiday worked would amount to $48l.k0. Under the Employer's practice at Maplehurst, .the griever would have been called on to work three overtime shifts during the period from March 24. At the overtime rate of $144.48 per shift this w&ld amount to $433.44. Under the rotating shift system the griever would have worked between March.24 and September 15 a total of 568 premium- time hours. At 40 cents per hour this amounts to $227.20. ! -: - 11 - There is another matter which must be taken into account: Retroactive Pay. The griever's pay in 1982 was being computed on the basis of the collective agreement made in respect of the period from January 1, 1980, to December 31, 1981. A new agreement was belatedly reached for the period from January 1, 1982, to December 31, 1983. However, it was provided,in Article 57 thereof that "the effective date, of any changes in the terms of this Agreement from the previous Agreement, unless otherwise indicated, ,'shall be July 28, 1982." The griever's pay from July 28 to October 15,. 1982, had not yet been adjusted to the *eVJ .-,. rates, and she is entitled retroactively to $44.40 in respect of the holiday on September 5 and $44.56 in respect of shift premiums, totalling $88.96. These result from changes effective on July 28, which includ.ed larger holiday and shift premiums. ~A question has been raised as to whether the griever would be entitled to vacation leave of 13 days having regard to the length of her sick leave. The combined effect of Article 46.2 and 46.3 with Article 51 clearly establishes.that sick leave is a form of paid leave-and vacation leave credits therefore accumulate during sick-.leave as well as when the employee is at work. The griever is thus entitled to the 13 days of vacation she would have enjoyed if she had not been dismissed. - 12 - Mr. Zarudny's final. argument against substantial compen- sation is that the griever failed in her obligation to obtain other employment and thereby "mitigate" her losses. The gl'ievor testified at some length about her efforts to find work and produced as Exhibit 4 a list of overa dozen employers to whom she had applied as well as consultants to whom she had resorted and courses taken in computers and advanced typing. She suc- ceeded in getting a job (while still under psychiatric treatment) but her employer closed its doors after only two weeks. Her earnings were $370.00. It is well-known that employment oppor- tunities in most fields were very scarce during 1983 and we think the griever made reasonable and persistent efforts to meet her obligation to look for work. Like many others, she was forced to depend on U.I.C. payments throughout the whole period of her unemployment. We agree of course with Mr. Zarudny's'contention that $370.00 must be deducted from any amount found to be owing. Mr. Zarudny has also argued that no evidence suggests the Union did anything.to secure employment for the griever. He cites Re United Association of Journeymen.~& Apprentices of the Plumbing and Pipefitting Industry and Fraser-Brace Engineering CO. Ltd. (1968) 19 L.A.C. 312 (Christie) for the proposition that the Union as well as the griever must take~'al1 reasonable steps to -. minimize loss. There are two reasons the case' cited has no application to this case. The first is that in Fraser-Brace the Board held the Union had in fact done all it.could reasonably be _ - 13 - expected to do. More importantly, the Union concerned, (being a craft union dealing with contractors) had opportunities to place unemployed members with certain contractors. In general, industrial unions do not have hiring halls or the capacity to find employment for their members. Certainly, the context in which OPSEU serve3 its membership has little or nothing in common with the arrangements under which craft unions are often involved in hiring practices, particularly in dealing with contractors. The final question to be decided is that of interest 8 claimed by the griever. Mr. Zarudny suggests the issue should be ~/ divided into two separate topics: pre-award interest and post- award interest. He argues that in Sinqh 240/79.the Board has ruled against a‘warding post-award interest. The case is not applicable here. In Sinqh, as .pointed out at page 4 of its decision "this Board did not reserve.to itself the power to deal -:~.,with difficulties arising in connection with the implementation of the award" --- nor had such reservation been requested. Co""sel also argues that Knudson 348/80 is distinguishable from this case. The matter of interest was fully reviewed in a unanimous decision of this Board, Gingell 172/84. Not being issued until July, 1984, it was unknown to counsel when their arguments were submitted. - 14 - As stated in Ginqell, the proper method of computing compensation has been authoritatively discussed by the Ontario Labour Relations Board in its Practice Note Number 13, dated September 8, 1980, and in certain cases. In particular, the O.L.R.B. dealt with the matter of interest, which has been claimed by the griever in this case,and referred to its decision in .Hallowel House Limited (1980) OLRB Rep. Jan 35, where the following example was used: The Board determines that an employee has been wrongfully discharged. 'Ihe Board's award marks four months from the time of discharge. Over that four-month period the total loss of wages, taking into account mitigation, is established to be $3,000.00. 'Ihe prime rate published in the EQnk of Canada Review during the month the complaint was filed is 12 p2r cent. 'Ihe interest would be calculated by dividing $3,000.00 in half and applying the 12 per cent annual interest rate adjusted to a four-month period, that is, 1 per .cent multiplied by 4/12ths. The resulting interest then .is $l,SOO.OO multiplied by 12 per cent multiplied by 4/12ths or $60.00. The issue of interest was also discussed by this Board in Knudson 348/80, the panel being chaired by Professor J.W. Samuels. After reference to several other cases, it was said at pages 6 and 7: I accept the formula suggested by Ms~. knnon for the calculation of.interest owing on lost wages. It is a deriva- tive of the Hallowel House formula. .:Li a: Take the total amount.owing; - 15 - b. Divide it by 2, in order to reflect the fact that, at the outset only one wage payment was delinquent, and so on to the date of reinstatement, when all the wage payments were owing ; c. Apply the appropriate annual interest rate pro-rated over the period over which the monies were owing to the date of reinstatement; d. Then, take the total amount owing at the time of reinstatement, and apply the appropriate annual interest rate pro-rated over the period from then date of reinstatement to the date of payment. For this last calculation, do not divide by 2, because you are not dealing with an increasing liability but a fixed one; e. The appropriate annual interest rate is the prime rate established lq the Dank of Canada at the time the grievance is filed. (I might say that some modification is needed here if the period of calculation is a long one and the interest rates have fluctuated dramatically, as they have in recent times.) In Gingell, the Board then went on to compute both pre- ,award interest and post-award interest in accordance with the formula explained in Hallowel House and Knudson. We think that formula is now well established and must unless ~;^:... prevail _, judicially overturned. “;. The logic of the formula simply is that the grievor is not "made whole" unless compensated for a lengthy delay in receiving money found to have been due to her. That principle is .'. recognized by the courts and there is no reason the same standard should not-be recognized at arbitration. - 16 - Recent G.S.B. cases, cited above, parallel the experience in other jurisdictions. As early as _, 1970, interest was awarded on damages payable to an employee for the employer's failure to pay overtime: Gouvernement de la Province de Quebec, Ministere de 1'Education 20 L.A.C. 368 (Lande). Othe r Canada (1981 ) important prececdents are Hallowel, supra, _ Air 29 L.A.C. 142 (Picher), followed in McKellar General Hospital (198 1) 30 L.A.C. (2d),229 (Prichard) and Pacific Western Airlines Ltd. (1982) 7 L.A.C. (3d) 340 (Larson). Also cited is B.C. Hydro (1982) 5 L.A.C.. (3d) 179 (Baigent) which expressly adopted (at page 191) the reasoning and formula set out in Hallowel. Since Hallowel, the O.L.R.B. has reviewed many other cases on interest, observing at. page 301: "there is a 'developing arbitral consensus in Ontario that' a compensation award can include an interest component:" Beckett Elevator Co. Ltd. (1983) .'ll L.A.C. (3d) 289 (MacDowell). Finally, in Leisure World Nursing Homes (1983) 2 L.A.C. 345 (Langille) the opposite view taken by Professor McLaren in Keeprite (1982) 8 L.A.C. (3d) 35 was discussed and rejected. In particular, Tyacke and the Queen (a 1964 judgment. of the Saskatchewan .Court of Appeal) had . decided that a statutory arbitrator may award interest "unless-he is precluded from doing so by statute," 47 D.L.R. (2d) 254. . ; !’ I - 17 - Interest must therefore be awarded in the amounts specified hereafter. The conclusion of this Board i s that the griever is entitled to be paid compensation as follows: SICK PAY AT 75% Oct. 1, 1982 - Mar. 23, 1983 113.5 shifts SALARY AT 100% -Mar. 24 - Sept. 15,. 1983 124.5 shifts STATUTORY HOLIDAYS April 15 ,- Sept 5, 1983 5 @ 96.32 OVERTIME Three Shifts @ 144.48 PREMIUM TIME HOURS Premium Time 568 hours @ 4Oc RETROACTI.VE ADJUSTMENTS Holiday Pay (Sept. 5, 1982) and Shift Premiums 7,859.88 11,991.84 481.60 433.44 227.20 88.96 21,082.92 DEDUCT EARNINGS COMPENSATION (excluding interest) 370.00 $20,712.92 - 18 - In calculating interest, the Board resorts to the method used in Gingell, supra. The' total principal amount due as of September 15, 1983, has been found to be $20,712.92. The average prime.rate for the 11 months of November, 198'2 , to September, 1983, was 11.5 per cent (Exhibit 8). Interest for the ll-month period from October 16, 1982, to,September 15, 1983, must be divided by two, so that the calculation is: 20,712.92 ~x.11.5 x 11 100 i-5 = $1.091.74 2 A different approach must be used in calculating interest from the date of reinstatement. Since the principal and interest as oft September 15, 1983, was$21,804.66 owing on that date, interest accruing subsequently is not divisible by two. Assuming that compensation is paid in full on September 15, 1984, - 19 - post-reinstatement interest should be computed --- in recognition of a rising bank rate in recent months --- for one year at 12 per cent. The result is: 12 $21,804.66 X-C $2,616.55 100 The total of pre-reinstatement interest and post- reinstatement interest is $3,708.29. If payment is not made on September 15, 1984, the Board directs that interest continue to accrue thereafter at the rate of one per cent per month until payment in full. " . . .:. The Board has no comment to make on the .unemployment benefits received by the griever in 1983. That matter is one to be resolved by the griever and the U.I.C. : In summary, the Board's decision is that the griever is entitled to be paid the principal amount of $20,712.92 and intere.st of $3,708.29, a total of $24,421.21, if paid on or before September 15, '1984, and is also entitled to be paid interest thereafter at the rate of one per cent per month on any amount still unpaid after September 15, 1984." In addition for reasons earlier explained, the griever shall receive 13 days of vacation leave. - 20 - It is regrettable, although perhaps it was inevitable, that the parties were unable to agree on compensation a year ago. In general, it is desirable that appropriate compensation be settled by the parties rather than in a contest necessitating a second hearing and a second decision by the Board, a costly and time-consuming process. It is also regrettable that this supplementary decision could not have been rendered at an earlier date. The lengthy and carefully-prepared arguments of counsel, received in July. required careful consideration and the various submissions they made, for which we are grateful, merited mention herein. DATED at Rockwood, Ontario, this 13th day of September, 1984. EBJ : sol Vice Chairman L. RcbMns , Kember,. I DISSENT - SEE ATTACHED P. D. Camp, Yember RE: FILE JONES - #537/82 I find that I cannot agree with the majority award dealing with the matter of Compensation to J. Jones upon her reinstatement as a Correctional Officer 2 at Mapleh~urst. In the original, award reinstating J. Jones my dissent was to the effect that she should not be reinstated and that the grievance should be dismissed. Further, it should be noted that 'the Deputy Attorney General has made application to the Supreme Court of Ontario (Divisional Court) for judicial review of the original ,.. _ Board's decisionto reinstate J. Jones. As of this date, the result of this application is not known. For these reasons, I respectfully dissent. _ DISSENT (Jones, 537/82) I am unable to agree with the majority award for the following reasons : 1. Besed on e comparison between the griever's record of absenteeism and the average figure for all.C.0. 2's at the instihrtion during the sams period, the majority have concluded that the griavor’s absenteeism was-not excessive. iiowevar, in making this compsrision, the majority chose not to take into account e period of absence of~"about 33 days" on the ~a-t of the griever due to her hospitalization and subsequent treatment on an outpatient basis in 1981. Includjng these 33 days increases the grievor'k overall absenteeism between October 12, 1979 and September 25: 1982 from 55.5 to 88.5 : days; i.e. a-i incriase of just over 59%. In my view, there is no valid reason for excluding these 33 days of absence from aonsideration. The reasons for the griever's absences were not in dispute - the employer .. acknowledged that her absences wr.e legitikte or "innocent'. The issue between the parties concerned the amouht of absenteeism and the effect that it was ha&on the fundamental employer-employee bargain, i.e. the’performancr of work for'the payment of wages. Surely in these circumstances it is not open to my colleagues to only count some of the ; griev&'s.ehsence*. It should be noted, as well, that Q&effect of the majority's unfortunate decision to set aside these 33 days is compounded by the almost certain fact that similar absences (i.e., absences due to hospitalization;.:. outpatient .treatmcnt snd 80 on). were included in calculating the average figures for all C.O.Z'S. . . . . -2- 2. At page 27, the majority state: "Cur second ground for upholding the grievance is obvious : the Collective Agreamant expressly contemplates that "innocent absenteeism" calls for ccapensation rather than the extreme penalty of- diamiesal . Article 51.1 is as follows:........ with respect, this suggestion that the parties' Short Team Sickness Plan serves to rule out termination of employment on the grounds of "innocent absenteeism" simply flies in the face of a great deal of case.law. To cite but two examples: .I,, me U.A.W. and mssey - Ferguson Ltd.(1969), 20 L.A~.C!. 370, arbitrator P.C. Weiler wrote the following regarding innocent absenteeism: n . . ..Because the relationship is contractual; and the axployer should have the right to the perfornance he is paying for, the employer should have the power to replace an employee on a job, notwithstanding the blamelessness of the latter. If an employee cannot report for work for tieasons that are not his fault, he imposes losses on an employer who is alao not at fault. '92 B cartti extent; these~kinds'of los8as -, due toinnocent absenteeism oust'bebolne'by the axplo~er. nowever, 'after~'a.certain stage:is'reached; the .acwxrwdation of,the..leqitixate'interests of bothexployer:and'exployee ,I ~requires 'a po wer of justifiable~'termination fin ~the former. ( Exphasin added) and In me u.A.w., x~cal 397 and Barber - Ellis of Canada. Ltd. (19681, 19 L.A.C. 163, (Schiff), after considering the benefits hvailable to a sick employee under the collective agreexent, the arbitrator, referring to the sick benefits, stated: "....I cannot hold that they~ exclude the power of the Company to discharge or demote an employee when chronic, sustained or spasmodic illnesses have prevented him f&a attanding his job with reasonable regularity and there is not foreseeable likelihood.of any change into the future." (nnphasis added) I balieve that an objective examination of the absenteaivJs cases clearly reveals that , notwithstanding the existence Of a sick leave plan such as is provided for in Article 51, : the axployer is not without a remedy where an employee is -3- repeatedly absent, even If these is a v-lid rearon for the employee's absences. 3. The third reason given-by the majority for upholding tha grievance is that the employer failed to refer the griever iin the Psplcyea Advisory Services Branch. This ground blithely overlooks the fact that the employer is not obliged to do so. In other words, an employee has no positive right to be referred to the mployee Advisory Services Branch. Moreover, the majority decision hints that the griever may have been the subject of discriminatory treatment when it states-at Page 28: "Just why us. Jones was singled out for dismissal has not been explained." In my view, in the absence of conclusive evidence which supports a finding of discriminatory treatment such statements serve no useful purpose and are better left unsaid.. 4. Lastly, the majority state that Superintendent Roberts acted with "undue haste" when he finally decided to dismiss the griever. Although the timing of this decision may have been somewhat at odds with the cor,tents of his August 30 letter to the grievor (part of which is quoted by the majority at page 291, the record of meetings, couoselling sessions and correspondence set out on page 6 of the majority decisicm attests to the fact that the Superintendent reached his decision to dismiss the griever following several unsuccessful attempts to deal with the griever's absenteeism over a period of approximately one and three-quarters years. Based on the foregoing, I would not have upheld the grievMCe as the majority have done. I -‘I- Inclosin3,Iwishto~~s~concemwithrespecttothe co&itionsofreinstate¶nentsetoutby themajority. The terns of rei.nstatenentWby the majority gobeyorrlndcing the griever tileagain. By awardiq thegrievor full pay follwi.ng the ex- haustion of sick leave benefits, up to 5eptenber 15, 1983, tile at the same time ackrxxdedging that the anplqeeis presenfly unfit for dutybysti~atingthatshe~tbereinstateduntiloneofher physicians certifies that she is fit.and able to return to wxk, the mjority has in effect granted the griever a sick leave bIlefit superior tc that available to any other bargaining unitenploy~'under the parties' collective Agreement. . . . .