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HomeMy WebLinkAbout1983-0189.Checkett.83-10-21THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD Between: CUPE (Steve Checkett) For the Employer: A.P. Tarasuk Consultant Hearing: September 19, 1983 IN THE MATTER OF AN ARBITRATION Under Grievor - And - The Crown in Right of Ontario (Ministry of Municipal Affairs and Housing) Employer R.L. Kennedy S.D. Kaufman W.A. Lobraico Vice Chairman Member Member T. Edwards Representative Canadian Union of Public Employees Central Ontario Industrial Relations Institute -2- AWARD The Griever's employment as a caretaker was terminated, effective December 31st, 1982 by letter dated December 16th, .1982 making reference to the Grievor's attendance record. In the letter, specific reference was, made'to the fact that the . _ Grievor had been cqntinupusly absent,from work since July 6th, 1982 and to what was descr~ibed as "a history of unsatisfactory attendance which has become progressively worse over the past few years". The letter stated that the reason for discharge was innocent absenteeism and that it was not a disciplinary procedure. The particulars of the Grievor's attendance record and the reasons for absence ares not in dispute between the parties. His em@loyment commenced in October of the year 1974 and in that year he was absent l-1/2 sick days and~2-l/2 days of leave . without pay. In 1975 he was absent for 13 sick days and 15-l/4 days of leave without pay which constitutes an absenteeism rate of 11.8% of available working days. The leave without pay in that year related to a period of absence resulting from the sickness of the Griever's father. In the year 1976 he was absent for 8 sick days and 2 days leave wit,hout pay for a total of 10 days or 4.2% of available working time. In the year 1977 the Grievor was absent for 23-l/2 sick days and 16-3/4 days leave without pay for a total of 40-l/4 days or 17.1% of available time. His particular problem in that year related to the need to have all his teeth removed which required -3- hospitalization and the time was taken as leave without pay because the Grievor had exhausted his sick day entitlement. In the year 1978 the Grievor was absent for 8 sick days and 79-l/2 days on Workmen's Compensation benefits. The days absent on compensation related to 2 separate back injuries incurred in the course of his employment. The first, early in the year, occurred when he lifted a pail of water to pour it into a sink. The second accident was in October as a result of moving a refrigerator and that accident kept him off work until March of 1979. . In the year 1979 he was absent for 22 sick days, 49 days on Workmen's Compensation and 6 days of leave without pay for a total of 77 days or 32.8% of available time. The main incident of sickness occurred late in the year when the Grievor suffered tendonitis in his arm as a result of assisting to unload salt from a truck. The Grievor indicated that he really felt that injury should have been treated as a compensable injury. In 1980 the Grievor worked up to February 4th. Prior to that time he was absent for 6 days of leave without pay. No particular cause or explanation was provided with respect to. those days of absence. On February 4th he apparently woke up in the morning with severe back pain which was ultimately diagnosed and accepted by the Workmen's Compensation Board as a recurrence with respect to the injury which had occurred in October 1978. - 4 - The Grievor was thereafter continuously absent for the balance of the year 1980 and all of 1981. The Workmen's Compensation Board has classified the Grievor as being 15% disabled and has awarded to him a permanent disability pension accordingly. The Grievor returned to work 'in February of 1982 but in April commenced a nine-week vacation period due to the requirement that existing vacation credits be used up and that vacation period was completed in June.~ In the first week of July the Grievor fell from a step-ladder injuring his back and once again commenced an absence on Workmen's Compensat,ion benefits. That absence was continuing as at the date of discharge. On November 16th, 1982 the Employer wrote to the Grievor in the following terms: Dear ~Mr:Checkett: A review of your attendance record show that.you have been continuously absent from work since July 6, 1982, following a recurrence of an injury to your lower back. Furthermore, during your entire period of employment which began on October 15, 1974 you have experienced a history of unsatisfactory attendance which has become progressively worse over the past few years. (Record of attendance attached). At this point in time, we have no information of your current medical condition or of your availability for work. Because of your inability to meet reasonable expectations of'availability for work, cou-ld you please arrange to supply me with a comprehensive medical report from your personal physician giving the probable date on which you will be returning to regular, full time duty on an ongoing and continuous basis, if ever, by December 1, 1982. -5- Upon receipt of this medical report an interview will be arranged with you to discuss your status as an employee. Yours truly, E. Durnan District Manager District "C" On December lst, 1982, the Grievor met with his District Manager and left with the manager a medical certificate signed by the Griever's doctor that provided as follows: This is to certify that the above is still unable to work because of back pain. He has been seen by an Orthopaedic and may be able to return to work in January. The District Manager, Edward Durnan, testified that at the December 1st meeting he advised the Grievor that the Medical Certificate was not satisfactory because it did not give any indication of his future ability to perform his duties on an ongoing and continuous basis. Durnan stated that the Grievor had no further information to offer and that the Grievor was advised that tie h!inistry would consider the matter. Durnan did not advise the Grievor that he would be terminated if further medical information was not provided, nor was there any particular reference to absenteeism apart from the particular back problem being experienced by the Grievor. Durnan was shown a medical certificate from the Grievor's doctor dated September 16th, 1983 and it was Durnan's evidence that if that document had been received in December of 1982, the discussions of senior management with respect to the matter might have been somewhat different. It was the Gricvor's recollection with respect to that meeting with Durnan of December lst, 1982 that Durnan did - b - not advise him that the medical note was insufficient, although the Grievor also recalled in his evidence.that when Durnan looked at the note Durnan told him that next time it should be stated a' little better. The Grievor left the meeting expecting that he would be hearing further from management with respect to the matter and he testified that he had no appreciation that termination might be imminent. It was his expectation that he would be returning to work in January. I Certain events and correspondqnce subsequent t.o the, . date of discharge' are relevant to the various issues that are before us on this arbitration. By letter to the Union dated February 18th, 1983, the Employer proposed that the Grievor be examined at the Employer's expense by the Employer's physician. In making such a proposal the Employer made reference to the fact that the medical report which had been submitted by the Grievor was ,inconclusive as to an expected date of return and the examination could provide a medical prognosis of the Griever's ability to perform his normal duties on a regularand continuing basis. The Grievor initially indicated h~is concurrence with that proposal but subsequently on February. 25th, 1983, the Grievor wrote to the Employer enclosing a medical certificate signed by.~his orthopaedic specialist, Dr. A. A. Tountas dated February 21st, 1983. That certificate simply stated that the Grievor was fit to return to work January 17th, 1983. In his letter the Grievor took the position that if the Employer needed any medical information they should contact Dr. Tountas; The Employer subsequently attempted,to obtain the Grievor's written consent directed to Dr. Tountas to release information with respect to the Griever's back injury but by letter dated March llth, 1983 the Grievor took the position that the statement of Dr. Tountas that he was fit to return to regular duties was sufficient. As a result.this matter proceeded to Arbitration. The Union filed a medical report from Dr. E. H. Shub dated September 16th, 1983 in the following terms: Re: Steve Checkett This is to certify that I have examined the above today with special reference to his back. He has full and painless movement of the back now and full examination is negative. He was last seen by Dr. Tountas (orthopaedicl November 9th, 1982. At that stage his opinion was that he was fit to return to his regular duties from the beginning of January 1983. From the examination I have conducted today I find Mr. Checkett to be fully recovered from his back injury and fit to return to his regular duties. In addition, the Union filed a report from Dr. Tountas to the Workmen's Compensation Board dated November 9th, 1982 which reviewed the Grievor's condition as at that date and concluded with the suggestion that the Griever continue with exercise but because there were no light duties on his job he should return right after the holiday season. That document never came to the attention of the Employer until shortly before the hearing. In order to justify a discharge based on unsatisfactory attendance at work, a board of arbitration must - I - Griever's written consent directed to Dr. Tountas to releases information with respect to the Griever's back injury but by letter dated March llth, 1983 tie Grievor took the position that :_ the statement of Dr. Tountas that he was fit to return to regular duties was sufficient. As a result this matter proceeded to Arbitration. ,. : >' . . The Union filed a medical report from Dr. E. H. Shub dated September 16th, 1983 'in the following-terms: ~. ;5. . Re: Steve Checkett / This is to certify that I have examined the above ,.I. ~_ today -with special reference to hisback. He has full and painless movement of the back now and full examination is negative. 'i He was last seen by Dr. Tountas (orthopaedic.) November 9th, 1982. At that stage his opinion was that he was fit to return to his regular duties from;the beginning of January 1983. From the examination I have conducted today I find Mr. Checkett to be fully recovered-from his back injury and fit to return to his regular duties. i . In addition, the Union filed a report from Dr. Tountas to the Workmen's Compensation Board dated November 9th, 1982 which reviewed the Grievor's condition as at that date and concluded with the suggestion that the Grievor continue with exercise but because there were no light duties on his job he should return right after the holiday season. That document never came to the attention of the Employer until shortly before the hearing. In order to justify a discharge based on unsatisfactory attendance at work, a board of arbitration must L -8- find on the evidence that there has been unsatisfactory attendance at work in the past. In this case we have no hesitation in reaching such a conclusion. In addition to the past record, however, the Board must also consider whether the employee involved will be incapable of regular attendance in the future. For authority in this area reference may be made to Re Crouse-Hinds Canada Ltd. (1981) 3 L.A.C.(3dl 230 (H. D. Brown); Re Massey Ferguson Industries Ltd. (1972) 24 L.A.C. 344 (Shimel; Re Niagara Structural Steel (St. Catharines) Ltd. (1978) L.A.C.(2d) 385 (O'Shea). The discharge took place December 16th, 1982 and as at that date the Employer was in possession of a medical certificate expressing a possibility of return to work the following month. I would readily agree with the Employer that that certificate Of itself was an inadequate basis for reaching a conclusion in that it gives no diagnosis, no analysis of treatment or prognosis, no assistance in determining what the probabilities are with respect to the possibility of returns and,perhaps most important in the circumstances, it totally fails to analyze the Griever's ongoing ability after his return to attend work with reasonable regularity. In liyht of the Grievor's history, the obviously current back problems and the known fact to all parties that the Grievor has been classified by Workmen’s Compensation as being 15% physically disabled, the Employer is entitled to medical evidence dealing with the Griever's ongoing ability to perform his work. The Grievor is employed as a caretaker and his normal job duties require the operation of relatively heavy machinery, the use of ladders and certain lifting. Before the Employer, or -9- indeed this Board can give any realistic-evaluation of the Grievor's ability regularly to attend work-in the future,. ,. medical opinion,directed to those issueswould be required. In "considering the Embloyer's.action as of December 16th.however, the fact remains there;did exist a-medical certifdcate, albeit in sketchy terms, from which it would be.~ reasonable to conclude that there is a very definite anticipation of return to work in January. That medical certificate -further confirms that the Grievor had been treated by-an ortliaepedic specialist and it is therefore apparent from the document that additional information would readily be in existence and available through the Grievor. The position taken on behalf' of the Employer was in substance that the Grievor had been afforded every opportunity to provide proper medical documentation both before the discharge and subsequently and that it was not proper that at this stage further time and leniency be extended to the Grievor to provide such information. With respect to that position,.,and j considering the nature of the meeting one December lst, 1982, we are quite satisfied that at that meeting Durnan did express to' the Grievor his dissatisfaction with and,the. inadequacy of-~the medical certificate filed. However, we are not.satisfied that the Grievor was in fact aware of what was being asked of him at the time or of the jeopardy in which his employment,status rested. It would further appear that the discharge itself resuited in a high degree of resentment on the part of the Grievor and where his subsequent actions in refusing to co-operate with the Employer and provide p~roper medical documentation were ill-advised they may be understandable in - 11 - in the medical certificate but that is not to say that his condition does not expose him'to a serious risk of reinjury should he resume his former job duties. We would also note the certificate does not come from the orthopaedic specialist, who would presumably be in the best position to evaluate the Grievor's condition. In the course.of argument, counsel for the Employer indicated that with respect to the absence record there was a degree of absenteeism for causes other than those attributable to the Grievor's back which of itself was unacceptable and would justify discharge. We would note however, that apart from general references to unacceptable absenteeism in various letters and evaluations to the Grievor there is nothing in the documentation or the evidence to indicate that in fact the Employer raised earlier concerns about attendance problems other than those relating to the back. The medical information which was requested by the Employer was directed to the back problem and not to general health problems. It would be our view on the evidence that as of December 16th the Employer's concerns were specifically directed to the Grievor's back problems and the issue of whether or not that condition would prevent regular attendance at work. In the result it is our conclusion that the grievance must be allowed to the extent that we consider the discharge decision made December 16th, 1982 to have been premature. It was obvious at that time that better information was available ,_,. c - 12 - and we are not satisfied that the failure to present proper medical evidence can be solely attributed-to intentional conduct on the part of the Grievor. We would therefore direct that the Union obtain complete and proper medical evidence as to the Grievor's past condition, treatment and'prognosis for the future. Specific reference should be made to'the physical disability of the Grievor and its effect on his 'ability to perform his regular'job duties and in the performance of.those I duties.to attend work on a regular basis. We will reconvene.the hearing at such time as that-evidence is available and the Employer has been given an opportunity to evaluate same. It may well be that upon receipt of such evidence the parties will be able to resolve the matter. In the event that we should ultimately conclude that an order of reinstatementis appropriate it would be our view that the Grievor would be entitled to compensation only subsequent to the date upon which proper medical evidence is provided to the Employer. It would also be our intention to make any reinstatement conditional upon the Grievor maintaining adequate attendance in the future. In the light of the foregoing we ,remain seized of all matters with respect to this Grievance. ~~ Dated at Toronto this 21St day of October, 1933,: I dissent.in part "S. D, sent attached) S. D. Kaufman {~Member I concur "W. A. Lobraico" W. A. Lobraico Member 7:3100 7:3210 7:3110 7:3220 7:3112 7:3200 ; i 3"g He : 189/63 Checkett PARTIAL DISSENT As the majority has indicated that it is not satisfied that the failure to present proper medical evidence can be solely attributed to the intentional conduct of the grievor, in the event that we conclude an order of reinstatement is appropriate, in my view, the grievor should be entitled to compensation from June 1, 1983. It appears to me that both parties should share any penalty that arises from these circumstances. Employee Nominee -