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HomeMy WebLinkAbout1983-0148.Mahoney.84-05-11ONTARIO CROWN EMPLCNEES GRIEVANCE SETTLEMENT BOARD IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD Between: Before OPSEU (Robert Mahoney) Grievor - And - The Crown in Right of Ontario (Ministry of Correctional Services) Employer A.M. Kruger Vice Chairman H. Simon Member D.B. Middleton Member For the Griever: E.J. Shilton Lennon Counsel Cavalluzzo, Hayes & Lennon Barristers g: Solicitors For the Employer: -. E.J. Anthony Regional Personnel Administrator Personnel Branch Ministry of Correctional Services Hearing: April 9, 1984 This matter comes before this Board as a result of a grievance by Mr. Robert Mahoney dated February 3, 1983 against a five day disciplinary suspension imposed on him. The parties agreed at the outset that this Board was properly constituted and had jurisdiction to hear this matter. Fortunately there is also agreement on many of the relevant facts in this matter. The grievor in September 1982 was a proba- tionary Correctional Officer I at the Windsor Jail, a maximum security facility that houses approximately 100 inmates. Although his probation dates from his appointment as a regular full-time correctional officer on February 22, 1982, the grievor had been a casual officer between December 8, 1980 and February 22, 1982. In September 1982, OPSEU was concerned about the Province of Ontario plans to impose. restraints on salary increases for public servants. As part of its campaign to oppose the restraint programme, OPSEU planned and carried out a protest rally in front of the Ontario Legislature on September 21, 1982. Prior to that demonstration, there was considerable dis- cussion of a possible general illegal strike by public servants on that day., OPSEU seems to have decided against that plan. However, the OPSEU local at the Windsor Jail held a meeting on September 17, 1982 where, by a majority vote, it was decided that employees would phone in sick on that day. As it turned out, of twenty-seven bargaining unit members scheduled to work that day, twenty-two, including Mr. Mahoney, booked-off sick. The Employer disciplined all those who failed to report. This led to a number of grievances including the one before us. At the hearing, the'Board was provided with copies of three awards arising from grievances launched as a result of the September 21 episode. In Re OPSEU (Gagnon et al) and Ministry of Correctional Services, the grievors admitted they had not been sick on September 21, 1982, but withheld their services in protest against the Gove~rnment. The Board 'upheld the discipline and dismissed all the grievances. In Re. OPSEU (James Baldwin) and'Ministry of Correctional Services and in Re. OPSEU (James Smith) and Ministry of Correctional Services the grievors were off sick for more than the one day (September 21) and produced medical evidence to document their claim that they had been unable to work on September 26, 1982. In both cases, the grievances were upheld. Those Boards ordered that the grievors be compensated for loss of earnings and that their records be changed to remove any reference to the disciplinary suspension. The parties agreed that what occurred at the Windsor Jail on September 21, 1982 was an illegal strike planned by the local union of OPSEU to protest against a government policy. This was the only such action carried out by an OPSEU affiliate at that time. Mr. Mahoney was off work on vacation from Monday, September 13, 1982 through Friday, September 17, 1982. He was not due in over the following weekend. He and his wife were in Montreal the entire week and did not return to their home in Windsor until Ir -4- Sunday, September 19 at about 10 p.m. On Monday, Mr. Mahoney went to work on his scheduled shift from 8 a.m. to 4 p.m. His wife, who is a nurse, went to her job at a hospital from 3:15 p.m. to 11:15 p.m. that day. The following day Mr. Mahoney called in at approximately 5:30 a.m. to report that he was ill and could not attend work. At about 10 or lo:30 a.m.;Mr. Ross, the Deputy Superintendent of the Windsor Jail, called Mr. Mahoney's home to inquire about~his health and his plans for the following day. Mrs. Mahoney answered the call and her husband spoke to Mr. Ross. He told Mr. Ross he was not well enough to work that day but that he was feeling somewhat better and expected to be at work on the following morning. Mr. Ross made similar calls to other employees absent from duty on that day. Mrs. Mahoney, who also claims to have suffered a similar illness, was able to report for work at the hospital on Tuesday afternoon September 21, 1982. The Board received evidence that Mr. Mahoney was an exemplary employee. He worked hard and was cooperative with his superiors. His attendance record was outstanding. In all of 1982, he was absent only on the day in question. At least some of his fellow workers found Mr. Mahoney to be excessively cooperative with management. There is a cartoon in a' scrap book at the Jail that shows Mr. Mahoney in bed with Mr. Villeneuve, the Superintendent of the Jail. On one crucial fact, the parties are not in agreement. The Employer claims that Mr. Mahoney was not sick but that he parti- cipated in the day of protest walkout. Mr. Mahoney maintains that both he and his wife became ill on Monday evening, September 29, 1982. They were up most of the night suffering from nausea, diarrhea and stomach cramps. In the morning, Mr. Mahoney was still ill and called in to the Jail to say that he would not be able to work that day. While his symptoms subsided somewhat by noon, he was not completely recovered. fin any case, he saw no point in reporting for only part. of a shift. By late afternoon, he felt much better and was able to eat dinner. His wife, as we indicated earlier, was able to go to work. The Employer's case is that there was an illegal strike on that day and an agreement among the bargaining unit employees that they would call in sick. While Mr. Mahoney played no part in planning the walkout, he was aware of it and participated in it. On Monday at work, Mr. Mahoney worked alongside Mr. Marchand who was a local union officer. The employer contends that they must have discussed the planned walk-out. There were other oppor- tunities for Mr. Mahoney to learn of the strike during the day. It is hard to believe that by sheer coincidence, Mr. Mahoney was sick that day. The grievor was at work the day before and the day after the strike. His wife who claims to have had a similar illness, did not lose any time from her job. Mr. Mahoney's outstanding attendance record makes it even more unlikely that on that particular day he was ill. The grievor had not sought help from a physician and had no medical evidence to support his claim that he was ill. The average rate of absenteeism for illness in the Jail at the time was 0.5 man days. Other arbitration boards have found Messrs. Baldwin and Smith were legitimately absent that day. If Mr. Mahoney was also sick, it would imply a rate of illness six times the average, with some cases yet to be decided that might raise this still further. It could be the case. is most unlikely this Counsel for OPSEU pointed to,evidence from Mr. Mahoney that he was unaware of the planned work stoppage. He had been away on vacation when the stoppage was pla,nned. At work on Monday, Mr. Marchand said nothing to him concerning the planned strike. In the area where he worked that day, there were few other employees about. At lunch, the officers discussed their unhappiness with the ,proposed restraint legislation and discussed possible "blue flu" action. However, nothing was said concerning plans for the following day. Mr. Mahoney feels that his fellow employees said nothing to him either because, as a probationary employee, he faced greater risks than others if he participated in the walk-out, or because they were concerned that he might report them and their plans to management. The Un,ion further pointed to the evidence of both Mr. and Mrs. Mahoney concerning their illness that day. As for his otherwise good attendance record, it was argued that that should be seen as something in his favour. There was n.o requirement in the collective agreement that he see a doctor or produce a medical certificate for a one-day absence. Indeed Mr. Villeneuve -7- had admitted in cross-examination, that under these circumstances it would have been unusual and even suspicious for Mr. Mahoney to secure a doctor's letter to support his absence. The Superintendent told this Board that Mr. Mahoney was an above average employee. ,Mr. Villeneuve feels he has a very good future in the Department. He has selected Mr. Mahoney to attend special courses to develop his talents. Mr. Mahoney was one of three absent that day that Mr. Villeneuve felt would be unlikely to participate in such an irresponsible activity. Mr. Villeneuve himself was unaware of the planned strike until the employees began calling in. It was quite possible that Mr. Mahoney was also unaware of the arrangements for September 21. This Board endorses the views of the board in Re OPSEU (James Baldwin) and Ministry of Correctional Services which is worth citing in full here. Where a substantial and unusual number of employees are absent without leave, call in "sick" or engage in "study" sessions, particularly where this is done in response to union urgings, it is a reasonable con- clusion to draw that in such circumstances the high incidence of "sickness" is not an unfortunate coincidence attributable to disease of epidemic proportions, but rather that the claims of sickness are probably false, and that in fact the absences are improper. That is the conclusion the employer reached in this case, and as we have indicated, it would appear that that was, in general, correct. We further accept the views of the board in Re OPSEU (James smith) and Ministry of Correctional Services which states the following:- It is well settled that. in cases such as the present one a grievor must accept the onus of substantiating his claim of sickness. A decision in a matter of this sort is not an easy one. Having placed the onus on the grievor, it is necessary to cope with the problems of assessing the kind of evidence that a grievor can be expected to adduce in meeting the onus. When one suffers from the illness the grievor claims to have suffered on September 21, one does not invite over friends and neighbours who can later be called to testify to the truth of his claim. Indeed one discourages such visits. Nor is it usual to consult a physician unless the complaint persists for more than a day. We are left, therefore, with the need to assess the only evidence Mr. Mahoney could be expected to produce, namely his word and the supporting evidence of his wife. After considering the demeanour of these two witnesses, the cogency and consistency of their evidence, the high regard that management has for the grievor, and the grievor's service record and reputation, we conclude that the gi-ievor's story is to be be1 ieved. Having said that, we wish to add that our finding does not imply any criticism for the way in which Mr. Villeneuve handled this matter. The Superintendent had every reason to be suspicious of all who claimed illness on that day. Even if he was prone to accept the stories told by some employees while rejecting the versions of others, he would be afraid to do so without the strongest supporting evidence f6r fear of being charged with favouritism or arbitrary behaviour. Having found in favour of Mr. Mahoney, we order that he be compensated for loss of earnings and that the suspension be set aside and removed from his record. In the event that the parties experience difficulties in agreeing on the monetary compensation due to Mr. Mahoney, this Board will remain seized of this matter for a period of thirty (30) days from the date of this Award. DATED at Toronto, Ontario this 11th day of May, 1984. c H. Simon - Member D. B. Middleton - Member