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HomeMy WebLinkAbout1983-0154.Smith.84-01-05IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD Between: Before: For the Crievor: For the Employer: E. Anthony Regional Personnel Administrator Ministry of Correctional Services Hearing: November 14, 1983 OPSEU (James Smith) and Grievor The Crown in Right of ,Ontario (Ministry of Correctional Services) Employer P. M. Draper I. J. Thomson A. G. Stapleton Vice Chairman Member Member E. J. Shilton-Lennon, Counsel Cavalluzzo, Hayes & Lennon Barristers & Solicitors / . -2- The Grievor, James Smith, grieves that he has been unjustly disciplined by being suspended without pay for failure to report for duty as scheduled on September 21, 1982, and requests removal of all reference to such discipline from the Employer’s records and restoration of wages, benefits and credits of which the suspension deprived him. The Grievor is employed as a Correctional Officer 2 at the Windsor Jail. The jail is a maximum security and post position institution, meaning that a certain minimum number of designated posts must be manned at all times. It accommodates both male and felnale inmates, who are before the courts, or who are being held under immigration laws, or who have been sentenced by the courts and are either serving their sentences in the jail or awaiting transfer to federal prisons or correctional institutions. September 21, 1982, was the date fixed by OPSCU for a demonstration by its members at Queen’s Park in protest against anticipated restraint legislation. On that date the jail held 97 inmates. Twenty-five members of the jail staff were scheduled for duty, only 4 of whom reported. Discipline imposed on the absentees led to the ftling of 19 grievances, 10 of which, including tnat of the Grievor, raise the claim of absence due to sickness. The remaining 9 grievances were consolidated and were heard as a group by a panel of the Board. At the commencement of the hearing, the representative of the Employer requested that the grievances of all 10 grievers claiming sickness also be consolidated and heard by a single panel of the Board. Counsel to the Grievor objected on the ground that while the facts relating to the failure to report for duty of the 9 grievors whose grievances had been heard together were identical, the facts surrounding the Griever’s absence from his duties were unique to his grievance. The Board ruled that although the consolidation requested 2 . -3- would be a considerable convenience to the Employer, the overriding consideration was the Griever’s right to a hearing of his grievance strictly on its own merits, and the hearing proceeded. Counsel to the Grievor filed in evidence a letter written by Dr. T. Echlin at her request and dated October 18, 1983, the text of which reads: In reply to your letter of October 13, 1983 the following is forwarded:Mr. James Smith of 6585 Disputed Road was seen in the office by myself on September 22, 1982 at which time he had a moderately severe upper respiratory infection with considerable sinus drainage. His chest had coarse breath s.,unds and he was felt to have septic sinusitis and bronchitis. He was placed on Keflex every 6 hours at that time. I saw Mr. Smith on only this one occasion, but my opinion .uould be that he was moderately ill 2-3 days prior to this and 2-3 day after which quite probably would have necessitated his absence from work for some period of time. Certainly on the d;te of September 22, 1982 he was ill and required medical therapy. I hope this information is helpful and if anything furtter is needed please let me know. Victor Villeneuve is SuFerintendent of the Windsor Jail. He testified that prior to September 21st he had heard talk of an OPSEU protest demonstration to be held in Toronto on that date which employees of the jail were being asked to attend. No’ requests for time off on September 21st were made by employees. Except for one correctional officer on the afternoon shift, all employees scheduled for duty on the day and afternoon shifts called in sick. The-midnight shift was kept on duty and the post positions were later covered by seigeants and managerial staff. The average absenteeism rate for 1982 came to less than one employee per day and apart from the absences on Septembe 21st, only 22 days of sick leave were taken by employees in the month of September, 1982. ‘~ Superintendent Villeneuve further testified that he held a disciplinary meeting with the Grievor on October 14, 1982, at which he rejected a note from Dr. T. Echlin presented by the Grievor as not -4- September 22, 1982, stated: “James Smith has been absent from Sept. 21 due to illness and may return to work Sept. 27/82.” By letter of January 10, 1983 (in which he noted a written reprimand issued to the Griever in December, 1979, for his participation in an unlawful strike of employees of the ail), he imposed a penalty of suspension on the Griever for that absence. He later rejected a note from Dr. R. Smeeton presented by the Grievor, dated January 18, 1983, in which, after stating that he had not seen the Griever on September 22nd and was relying on the records of the clinic in which both he and Dr. Echlin practice, he confirmed that the Crievor had been seen by Dr. Echlin on that date, had been found to have an upper respiratory tract infection and had been given medication to be taken over a seven day period. Continuing, Superintendent Villeneuve stated that he would have rejected Dr. Echlin’s letter of October 18, 1983, if it had been submitted at the time of the Griever’s absence. He did not accept 2 medical certificates presented by employees who were absent on September 21st. He considers that the particular circumstances that existed on September 21st have a bearing on the adequacy of the evidence concerning the Crievor’s medical condition on that date. He agrees that the Griever was legitimately absent on September 24th, 25th and 26th; has no record of abusing sick leave; and has received only one previous disciplinary penalty during his employment at the jail. James Ross is Deputy Superintendent of the Windsor Jail. He testified that early in the morning of September 2151 he received a telephone message from the sergeant on duty at the jail that employees were calling in sick. During the day he attempted to reach by telephone all those who had called in. His call to the Griever’s home at 12:02 p.m. was answered by the Griever’s wife who said that he had a cold and had an apointment with a physician for the next day. He asked that the Crievor . -5- telephone him and received that call at 12:05 p.m. The Grievor repeated the information already given by his wife. The Griever testified that he is 61 years &d and has 29 years of service at the Windsor Jail. He suffers from high blood pressure and a diabetic condition which requires daily medication. On September 17, 1982, he attended a meeting called by his OPSEU local at which the possibility of members booking off sick to take part in the protest demonstration planned for September 21st in Toronto was discussed. The matter was put to a vote and a ma’jority of those present voted in favour of that action. He voted against the proposal and at the time he intended to report for duty as , scheduled on September 21st. On September 18th he began to feel the symptoms of a cough and cold but reported for duty on that date and on September 19th and 20th. He remained at home in bed on September 21st. On September 22nd, the first of his two days off for that week, he kept an appointment made by his wife with ,Dr. T. Echlin at the clinic where his own physician, Dr. R. Smeeton, also practices. ‘,Dr. Echlin prescribed an anitbiotic for his complaint, ordered rest and provided him with a note to present to his employer. He was absent for a total of four days on which he was scheduled for duty, September 21st, 24th, 25th and 26th, and returned to duty on September 27th. Superintendent Villeneuve having rejected Dr. Echlin’s note of September 22nd, he obtained a note from Dr. Smeeton dated January 18,1983, which was also rejected. Elsie Smith, the Griever’s wife, testified that beginning on September 18th he had symptoms of what she took to’ be a chest cold. On September 20th she made an appointment for him with Dr. Echlin for September 22nd, his regular physician, Dr. Smeeton, not being available. In the evening of September 20th she became concerned about her husband’s condition ,and suggested that he remain at home on the following day. . -6- When he agreed, she telephoned the sergeant’on duty at the jail to tell him that her husband would not be coming in because he had a cold. She took the telephone call from Deputy Superintendent Ross on September 2ls.t. Her husband could not come to the tczlephone immediately and she told him he was to return the call, which he did. It is submitted for the E.mployer that the Grievor was not so sick on September 21st that he could not attend to his duties and so has not met the requirement of Article 51.1 of the collective agreement; that tne medical evidence is not conclusive as to any inability to report for duty on that date; that the medical certificates provided by Dr. Echlin and Dr. Smeeton are not satisfactory proof of the Griever’s medical condition prior to his visit to Dr. Echlin; and that the letter from Dr. Echlin produced at the hearing, in suggesting that the Griever was “moderately ill” prior to September 22nd “which quite probably would have necessitated his absence from work,” adds nothing to the earlier certificates. It is further submitted that the special significance of September 21st cannot be ignored; that the Employer was entitled to require the clearest possible evidence of sickness from the Griever in view of the concerted withdrawal of services by employees of the jail on that date and the abnormally high number of sick claims related to it; and that the Griever’s prior knowledge of what would occur on September 2lst placed a special obligation on him to report for duty on that particular day. Counsel to the Griever concedes that there was a concerted stoppage of work by employees of the Windsor Jail on September 2lst and that unless the Griever was unable to attend to his duties on that date because of sickness he must be considered to have been part of it. Counsel argues, however, that sickness was the reason for the Griever’s absence and - that the medical evidence, particularly the professional opinions expressed -7- by Dr. Echlin in his letter of October 18, 1983~, together with the testimony of the Griever and his wife; are ample proof of sickness justifying that absence. Counsel further argues that the Employer’s main concern throughout the matter has been with the work stoppage rather than with the proper question which is whether or not the,Grievor was sick on September 21st. It is well settled that in cases such as the present one a griever must accept the onus of substantiating his claim of sickness. It is equally well settled that the, probative value of medical evidence is for the arbitrator to determine. It may or may not be accepted as proof of the facts it presents and may or may not, in any event, be found sufficient to support a claim of sickness. The circumstances in which it originated, what it includes and what it omits are obvious considerations. Here we have, to begin with, the testimony of the Griever and his wife as to his observable symptoms at the material time which, while it is inevitably subjective, is not to be wholly discounted. As to the medical evidence, Dr. Echlin was consulted, made a oiagnosis corroborating the symptoms reported by the *Griever, prescribed medication and ordered a further period of absence from work. The Employer accepts this as establishing that the Griever was unable to attend to his duties on September 24th, 25th and 26th (and presumably that he was also sick on September 22nd and 23rd, his two days off) but contends that it does not speak to then Griever’s medical condition on SePtember 21st since Dr. Echlin did not see him until the next day. This view contains the suggestion that an employee must have been seen by a physician on the first day of an absence from work which he claims was due to sickness, a condition that would not always be possible to satisfy. It also seems to suggest that a physician cannot (or should not) attest to a patient’s medical condition .^ i: I I before he personally examined him. Given the nature of the Grievor’s cornplant, it appears to us not at all remarkable that Dr. Echlin should deduce from his examination of the Griever on September 22nd that he was also sick on September 2ls.t. That he does not overstate the case strengthens rather than weakens the credibility of the opinion. It is a professional opinion given by a licenced medical practitioner which strikes us as being ethically sound and factually reliable and we accept it. It is to be noted that Dr. Echlin’s good faith in the matter is not questioned by the Employer. We incline to the view that the operative reason for the distinction made by the Employer between the Griever’s absence on September 21st and his absence on the other dates in question is to be found in the foreknowledge of the protest demonstration and the abnormally high incidence of absenteeism on that date. We respect the commitment of Superintendent Villeneuve to the maintenance of the security of the Windsor Jail and endorse his condemnation of irresponsible conduct that would endanger it. Clearly, he regards those employes who were absent although scheduled for duty’ on September 21st as being, without exception, in breach of their duty. But such a global judgement, with nothing more, is not an acceptable basis for the imposition of individual discipline. In the circumstances there were grounds for the suspicion that the absences of September 21st were part of a concerted plan of action, and for scepticism of the related claims of sickness. Nevertheless, in our view, the Employer was not tnereby relieved of the obligation to examine the circumstances of the Griever’s absence in isolation and to judge it on its own facts. Instead, it apears to have been considered in a common context with other claims of sickness. .I: .:.. :.:I. .’ “ Finally, the implication of the Employer’s position is that the Griever never intended to report for duty on September 21st; that he deliberately jeopardized the security of the jail; that there was a scheme to alibi his absence by reporting that he was sick and arranging an appointment with a physicians in effect, that his sickness was spurious and that Dr. Echlin was deceived. The evidence before us does not permit of those conclusions. In the result, we find that the Griever was, in the words of Article 51.1 of the collective agreement, unable to attend to his duties on September 21, 1982, due to sickness. It follows that he is not subject to ‘discipline for his failure to report for duty on that date. Accordingly, it is hereby ordered that all reference to the suspension of the Crievw arising from his absence on September 21, 1982, be removed from the Employer’s records and that the wages, benefits and credits lost by him as a result of that suspension be restored to him. DATED at Consecon, Ontario, this 5th day of January ,1984. P.M. Draper, Vice Chairm a n L/ I.J. Thomson, Member I A.G. Stapleton, Member Ich