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HomeMy WebLinkAbout1983-0425.Dixon.83-11-09IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD Between: Before: OPSEU (Patrick 0. D&on) Grievor - And - The,Crown in Right of Ontario (Ministry of Government Services) Employer J.W. Samuels Vice Chairman F. Collom Member A. Reistetter Member For the Griever: I. Freedman Legal Director, Grievance Section Ontario Public Service Employees Union For the Employer: D.W. Brown, Q.C. Crown Law Office Civil Ministry of the Attorney General Hearing: September 15, 1983 -2- INTRODUCTION On May 4, 1983, the grievor was dismissed from the public service because of excessive absenteeism. In his letter to the grievor, Mr. Alan Gordon, the Deputy Minister, said: As a result of your most recent absence from work com- mencing the 12th day of November, 1982, it became apparent that the likelihood of your regular attendance at work in the future required reassessment. As you are aware, your medical history related to a back injury sustained in November, 1976, has been very lengthy. You were absent for several prolonged periods, including one period of approximately two and one-half, years between the end of 1978 and the 6th day of July, 1981. Since your return to work on that date and up to this most recent lengthy absence, you were absent more than 15 days in 1981 and more than 100 days in the year 1982, up to the 12th day of November. These absences appear to be related partly to medical problems and a variety of non-medical incidents. These absences are far in excess of the average within the Ministry and the Public Service as a whole and therefore unacceptable. The subject of your absences has been brought to your attention on numerous occasions and without any improve- ment. At no time have we received from you or any of the medical doctors attending you a definitive medical prog- nosis and diagnosis of your back injury and the prospects the future holds for a substantial improvement in your attendance record. Not one of the aforementioned doctors has been able to confirm that your pre-existing back ailment will not reoccur and thereby necessitate absences of the kind that have occurred in the past. To reiterate, your absenteeism related to medical problems and a variety of non-medical incidents has been excessive. In light of your very poor past attendance record and no reasonable likelihood that it will not reoccur in the future, you are dismissed from the Public Service of Ontario. effective the 4th day of May, 1983. The grievor suggests that this dismissal is "without just cause", and asks for reinstatement to his position as a Clerk 3 Supply with full compensation. -3- The Griever's Attendance Record The evidence before this Board consists of several hundred pages of letters, memoranda, doctors certificates and letters, and other documents relating to the numerous, intermittent, and lengthy absences of the grievor since he suffered a back injury in 1976. In addition, at our hearing, we had the testimony of Mr. David Ferguson, Director of the Information Services Branch (which is responsible for the government mail service), and Mr. Tony Kooblal, Assistant Manager and Acting Manager of the government mail service during the relevant time. The grievor did not give evidence. Following the hearing, the parties submitted written argument. From all of this, the primary points are: 1. 2. 3. 4. The grievor began his employment with the Ministry in December 1969 at the Records Centre in the Town of Cooksville. On November 29, 1976, the grievor injured his back while lifting something at work. This resulted in a period of significant absenteeism, culminating in the griever’s absence from work from October 1978 through to July 1981. Up to October 1978, the grievor was working as a Clerk 3 Supply. At our hearing, the Ministry made it clear that it is not relying on the griever’s record pre-July 1981 to explain the dismissal. In July 1981, the grievor returned to work and was assigned to a position with the Government Stationery Office in Markham. He was there until mid-December 1981. The grievor was then transferred to the Government Mail Service, located at Queen's Park in Toronto. He was carrying out the -4- duties of a Clerk 2 Mail, but was being paid at the rate of a Clerk 3 Supply. 5. Following his return to work in July 1981, the grievor's attendance record showed significant absenteeism. In 1981, the grievor was off work on 13 occasions, for a total of 16% days. In 1982, he was off on some 10 to 20 occasions, for a total of 149 days. It is not possible to be absolutely precise about the number of occasions off work in 1982 from the evidence we were given. The grievor turned in a great number of medical certificates, some of which were for consecutive time periods. However, it does appear that the first 11.2% days were for reasons unrelated to his back, and the last 36% days related to a recurrence of the back injury commencing in November. He did not work at all in 1983, having had a recurrence of his back problem in November 1982, which took him off work until he was dismissed. Apart from the back problem, the record shows the grievor off for unspecified medical reasons, problems with his left and right foot, thigh injury, going to the bank, car repairs, court appearances, daughter's illness, wife's illness, and attendance at the dentist or lawyer. 6. There is no doubt that these absences have caused problems for the employer in terms of work scheduling and assignment of jobs. 7. On March 31, 1983, Mr. Ferguson sent the following letter to the grievor: As you are aware, you have been absent from duty on medical grounds, for several months now. -j- The last signed document from your doctor, indicated that you would be back to work at the end of February 1983. However, during the past 4 weeks we have had no further indication from you, of your expected date of resuming duties. This is, therefore, to advise you that you are required to report to work on Monday, April 11, 1983, at 8 A.M. Before resuming duties, you must present a medical micate to cover the lasmur weeks of absence, also indicating therein the reasons for your inability to carry out your normal duties. It will also be necessary that you produce a certificate indicating that you are fit to resume your normal duties, as of April 11, 1983. It should be noted that your future with this Ministry will be considered should you fail to report to work with the necessary medical certificates. (Emphasis in the original) 8. On April 11, Mr. Ferguson received the following letter (dated April 5) from Dr. N.M. Borenstein of the Pain and Stress Treatment Centre: As I indicated in our last phone conversation, there had been some extensipn considered in the time Mr. Dixon should be off work due to his previous injury. Mr. Dixon has continued to receive treatment at our clinic during the period since March 1, 83, and will probably require occasional treatments even after his return to work. I believe he is fit (Note: emphasis in the original) to return to work% of this present date. However, he certainly should restrict lifting/bending and/or twisting activities for at least 1 or 2 months. Transfer to another, less physically taxing, job might be a good future measure in preventing further morbidity. Mr. Dixon has shown considerable improvement under our program in recent months, but is still at risk for recurrence of his low back problem. We feel that he can be maintained as a productive worker, however, with proper common sense limitations and some followup by our clinic. 9. Mr. Ferguson replied to this letter in a letter to the grievor on April 13, 1983: This is further to my meeting with you on November 11, 1982. (Note: this was corrected to read "April 11, 1983" in a letter sent to the grievor on April 18) -6- You have been absent from employment since November 12, 1982 with a back ailment. Since then a number of efforts have been made to evaluate your situation. Documentation which has been received has been of a very general nature and infrequent. In addition, you were sent on a mandatory medical examination, but have not returned the necessary release forms to permit Dr. Gray to obtain the appropriate information on your condition from other doctors who have been treating you. After four weeks in March without appropriate medical docu- mentation, we were finally obiiged to send you a letter dated March 31, 1983, requesting you to appear at work, on or before April 11, 1983, with the necessary medical docu- mentation. You arrived at work on April 11 at. I:00 p.m. rather than 8:00 a.m. as specified. When you arrived, you provided me with a letter from Or. Norman Borenstein, dated April 5, 1983. At that time, you were interviewed at length by myself in an attempt to interpret the contents of Dr. Borenstein's letter and to obtain additional information regarding your treatment in order to evaluate your capability to perform your job requirements. While some information was received at this interview in response to questions, I feel it is insufficient to ensure that you are capable of performing the work as required. In light ofthesecircumstances, and the need by the employer for adequate information to assess your situation and capa- bility to adequately perform your job, both now and in the future, the following information must be provided by you no later than April 19, 1983: 1. 2. 3. 4. 5. A more definitive outline by Dr. Borenstein as to the type of treatment you received. A list indicating each specific date you were treated, verified by Dr. Borenstein. Specific information provided by Dr. Borenstein as to instructions, advice, counselling etc., communicated to you during the period since your treatment began in November 1982 regarding activities to pursue or avoid, including, if applicable, any therapeutic exercises you were, and are, to follow. The return of the medical waivers sent to you some time ago which will permit Dr. Gray to obtain necessary information from other doctors. A clear outline by Dr,. Borenstein as to your future capabilities for performing your duties, and the probability of recurrence of medical problems which might result in less than full capacity to do the work. . . c: -7- We would also appreciate receiving some indication of what is meant by the terms used by Dr. Borenstein in his letter of April 5, 1983, which indicates that you. should "restrict lifting/bending and twisting activities for at least 1 or 2 months". 6. An indication from Dr. Borenstein as to whether the physical elements of your work in the Government Mail Service was discussed with him and, if so, exactly what his understanding is of those work requirements as they relate to your medical condition. You will continue to be paid on the basis of the Short Term Sickness Plan until April 19, 1983, the date this information is required. Following this date, your future with this Ministry will be re-evaluated. 10. The grievor replied that Dr. Borenstein would be sending another letter by April 25. Dr. Borenstein's letter of that date read: Mr. Dixon has shown me your letter of April 13, 1983, wherein you make repeated references to myself and my treatment of Mr. Dixon. Although I have not received any formal request from your department, I shall attempt to respond to some of these questions. I regret that you found my letter of April 5 ambiguous, requiring an interview "at length" with my patient. My statements about "modified work" are, to my knowledge, fairly standard in many areas of North American industrial medicine. During this episode, Mr. Dixon attended our clinic on the following dates 17/11/82, 21/11/82, 30/11/82, 3112182, 7112182, 20/12/82, 29112182, 31112182, 5/I/83, 711183, 1211183, 1911183, 2511183, 2711183, I/2/83, 10/2/83, 2812183, 813183, 1313183, 1813183, 2513183, 2413183, 514183, 11/4/83, 1514183, 19/4/t 33, 2114183. He received multimodality treatment for a recurrent chronic pain syndrome, and has made excellent progress. (Mr. Dixon's treatments include: wet heat, galvanic stimulation,"Trafer" - style physiotherapy, therapeutic exercise, counselling and stress reduction) As to Mr. Dixon's future work capability, I do not feel that he is in any way confined as far as functioning adequately in the Government Mail Service. I am sorry if I conveyed this impression. I do feel,that he should be permitted to work gradually "up to" the most strenuous (and occasional) heavy tasks on the job. Given his natural physical strength and size, I am only sure that, even before he is fully integrated into his work routine, he would be at least average in physical abilities compared to co-workers. After further discussions with Mr. Dixon as to his exact work roles and those ofhis co-workers, I now feel that he can safely continue at his present position, provided common sense is exercised in the initial few weeks of "getting used" to the physical routines. (Emphasis in the original) 11. This was followed by the letter of dismissal of May 4, 1983. Jurisprudence 0n~Absenteeism It is now established that/ an employer may terminate the employment of an employee whose chronic absenteeism is so persistent that it can be said that the employer has lost the benefit of his contract with the employee. Arbitrators have considered the length of.absence, the recurring nature of the absences, and the costs incurred by the employer as a result of the poor attendance record (disruption of production, problems for supervision, extra overtime, etc.). The reasons for the absenteeism may be perfectly blameless. Termination of employment for absenteeism is no longer considered a disciplinary matter. hit is simply a case of ending a relationship from which the employer is no longer receiving the benefit of his bargain with the employee. The termination will be upheld where the absenteeism is of this nature, and it is unlikely that the employee will be capable of regular attendance in the future. In general, see E.E. Palmer, Collective~Agreement.Arbitration in Canada (2nd edition, 1983), at pages 420-6; Re United Automobile Workers and Massey-Ferguson.Ltd. (1969), 20 L.A.C. 370 (Weiler); Re United AutomobiIeWorkers, Local 458, and Massey: Fergusgn.Industries Ltd. (1972), 24 L.A.C. 344 (Shime). There is some uncertainty in the jurisprudence concerning the matter of the future attendance of the employee. Up to 1978, it seemed established that the onus was on the employer to show that the grievor was unlikely to be able to maintain regular attendance in the future: see the references cited -9- above, and Re.Atlas Steels Co,~~and-CanadianSteelworkers' Union,.Atlas Division (1975), 8 L.A.C. (2d) 350 (Weatherill); Re National Auto Radiator~Manufacturing Co. Ltd. and.United Automobile Workers, Loca1~195 (1976), 11 L.A.C. (2d) 48 (Brandt). However, in 1978, in Re Niagara~Structural Steele (St. Catharines) Ltd. and United~Steelworkers..Lqca17g12 (1978), 18 L.A.C. (2d) 385 (O'Shea), it was suggested the employer does not have to establish the improbability of the future regular attendance of the grievor, but is,entitled to rely on the assumption of continued absenteeism unless the grievor brings forward evidence to the contrary. The rationale for this change was put clearly in the award (at page 392): On the basis of the authorities we therefore conclude that an employer is justified in terminating an employee for (a) undue absenteeism, even though the absences are "inno- cent" in that they are caused by illnesses or other reasons over which the employee has no control, and, (b) where there is no real evidence to establish that it is likely that the employee will be capable of regular attendance within the foreseeable future. However, unlike the views expressed in the Massey-Ferguson case, we do not find that the company must bear the onus of.establishing "that the grievor is incapable of regular attendance into the future". Termination for "innocent absenteeism" is not a disciplinary matter and the onus of establishing just cause for discipline which is imposed by the collective agreement does not apply. While we are of the view that the company must establish the repetitive and consistent absenteeism which has precipitated its decision to terminate the grievor, the company is entitled to rely on the assumption that such repetitive and irregular absenteeism is likely to continue unless other evidence to the contrary is available. Once such a record is established by the company, the onus shifts to the grievor to establish that the conditions which caused his absences of which the company complains, no longer exist and therefore there is substantial evidence which tends to indicate that there is good reason to believe that the grievor will be able to provide regular and consistent attendance to his duties in the immediate and foreseeable future. Palmer, in Collective Agreement Arbitration (op..cit.), suggests that this case in 1978 (together with another award in 1978, which the author suggests . . .e - 10 - followed the same line, but with all due respect, did not) have not changed the law (see footnote 92, at page 422). The cases are not conclusive on the matter. In Re Atomic Energy of.Canada Ltd. (Chalk River NuclearLaboratories) and Office and.professional Employees International Union, Local 404 (1982), 5 L.A.C. (3d) 248 (Saltman), the learned arbitrator acknowledged the uncertain state of the jurisprudence and expressed her preference for the traditional view that the employer bears the.onus to prove that the prognosis for the future is poor. How- ever, she concluded her analysis by.suggesting that the onus is not at all heavy, and involves no more than the introduction of evidence tending to show that it is unlikely that the grievor will be able to maintain regular attendance in the future (at page 252): The board has come to this conclusion, i.e., that the onus of proving future prospects rests with the employer and that the employer must introduce evidence in the first instance to satisfy the onus, even though the employer is required to prove a negative which is peculiarly within the knowledge of the grievor, i.e., that she will not be able to maintain regular attendance in future. In the board's view, the law on proving a negative which is peculiarly within the knowledge of the opposite party is not clear. Although some cases suggest that the obligation to adduce evidence rests with the opposite party who has the knowledge (in this case, the grievor or her agent, the union), this is not an invariable rule. Other cases suggest that the party who makes the allegation (i.e. the company) bears the onus of proof and that once it adduces evidence, the onus shifts to the opposite party (i.e., the union) to introduce evidence to the contrary. This board favours the latter approach, i.e., that the company bears the onus of proof and that in order to discharge that onus, the company must introduce some evidence before the onus shifts to the union to introduce evidence to the contrary. . In Re Victoria Hospital, London, and London and District.Building~Service Workers' Union,~Local.Z2C (1979), 24 L.A.C. (2d) 172 (Weatherill), it is acknowledged that, while the employer does have the onus of proving a poor prognosis for the future, the absenteeism record itself may create this assumption (at page 174): 2. * 7 ,ll - The onus, it has generally been held, is on the employer to show that the probabilities are that an employee will not be able to provide reasonable regularity of attendance in the future. While the standard of proof is that of the balance of probabilities, since the employee's livelihood is at stake, it must surely be that clear and cogent evidence must be adduced. In some cases, the absenteeism record itself may, depending on its nature, create an assumption on which the employer may rely, unless the contrary is established: see, for example, Re Niaoara Structural Steel (St. Catharines) Ltd. and U.S.W.. Local 7012 (1978), 18 L.A.C. (2d) 385 (OlShea). In Richardson; GSB 517/81, the Board said that the employer had to show a record of,excessive absenteeism and that the prognosis is not good (at pages 10-11). However, when the Board turned to the proof of the poor prognosis, it relied entirely on the evidence of the poor attendance record, which demonstrated that is was unlikely there would be regular attendance in the future (at pages 15-6). A review of these authorities shows that, since 1978, the general arbitral jurisprudence is not absolutely clear on who bears the onus concerning the probability of the employee's regular attendance in the future. In Niagara Structural Steel, the learned arbitrator relied on the fact that normally the grievor bears the onus to prove his or her case. The onus is usually shifted under the collective agreement when it is a matter of discipline, where the employer bears the onus of showing just cause because the reasons for the disci- pline are within the employer's hands. But, it was suggested, there is no reason to shift the burden of proof when the issue is a non-disciplinary termi- nation, and there is no provision in the collective agreement providing for such a shift in onus. Evidence concerning the probability of future attendance lies with the grievor and not the employer and normally the burden of proof is left with the party which has the evidence concerning the matter to be proved. * However, in our case, the Deputy Minister dismissed the grievor pursuant to his power under section 22(3) of the Public Service Act, which reads: ? 5 - 12 - A deputy minister may for cause dismiss from employment in accordance with the regulations any public servant in his ministry. (Emphasis added) This provision imposes on the Deputy Minister the onus of showing cause for the dismissal. Where the dismissal is based on excessive absenteeism, this onus involves two elements--firstly, that there has been undue absenteeism; and secondly, that there is no likelihood of regular attendance in the future. None- theless, in some cases, the record of absenteeism alone will be sufficient to demonstrate on the balance of probabilities that the grievor is unlikely to maintain regular attendance in the future. The Ministry argues that the grievor's attendance record clearly shows excessive absenteeism, and, if the employer must prove the unlikelihood of future regular attendance, the previous record leads to the assumption of poor attendance in the future. The grievor has a chronic back problem and Dr. Borenstein's last letters do not show that the grievor will be able to maintain regular attendance in the future. The Board was asked to consider not only whether the grievor was fit to return to work in April 1983, but whether there would then be a strong likelihood that the grievor would continue to work without any recurrence of the previous problem. In any event, it was suggested that the absences not related to the back problem are sufficient to warrant the action undertaken by the employer. The Union's case is that Dr. Borenstein's letters are sufficient to - show a likelihood of regular attendance in the future. Secondly, it is suggested that the letter of dismissal was the first time that the employer raised the problem of excessive absenteeism. Previous correspondence and communications with the grievor were concerned with unauthorized absence. The grievor was entitled to a warning that the Ministry was concerned with excessive absenteeism and was k contemplating non-disciplinary dismissal. We were referred to Re Atomic Em -- of Canada Ltd. (Chalk River Nuclear Laboratories) and Office and Professional ------ -.--_ __--.. Employees International Union, Local 404 (1982). 5 L.A.C. (3d) 248 (Saltman), -_------~- wherein the learned arbitrator says (at page 254): The board would agree that an employer cannot terminate an employee without a warning that the employee's job is in jeopardy. It simply would be unfair to terminate an employee without bringing to the employee's attention the employer's concerns in this regard and giving the employee a chance to improve: Re Int'l Assoc. of Machinists, Lodqe 1703, and Perfect Circle 1cto iv sio . V G A to Ltd. (1972), 24 L A C 380 y;eilLry. ' " N ' P arts . . . Conclusions There is no doubt that, in this case, the griever's attendance record since July 1981 is so poor that one can say he has not kept his bargain with the employer. While the grievor may have been formally employed by the Ministry during this period, he did virtually no work for his employer. The issue then becomes whether or not there is a likelihood of regular attendance in the future. With respect to the greivor's back injury, the letters from Dr. Uorenstein offer some hope of regular attendance in the future. However, the griever's abysmal attendance record in 1982 was attributable not only to the back problem, but to a host of specified and urispecified other medical and non-medical problems. In our view, this previous record is sufficient to lead to the assumption that the grievor would be unable to maintain regular attendance in the future. The Ministry asked the grievor for permission to contact the other doctors who treated him so that a full evaluation of his potential for Work in the future could be made. We see reference to this difficulty in the Ministry's letters of April and May 1983. While we respect the rules concerning confidentiality oft mc:dical .- - 14 - records, once the griever's attendance record reaches the state that one can draw from it the assumption that he will not be able to maintainregular attendance in the future, the burden is on the grievor to demonstrate the wrongness of this assumption. If he steadfastly refuses to provide the necessary information to enable a full evaluation of his situation, then it is inescapable that the employer is entitled to rely on the clear implication for the future that arises out of the griever's attendance record. We have come to the conclusion that the grievor's.attendance record does indeed demonstrate excessive absenteeism in the sense that the Ministry is not getting,the benefit of itsbargain with the grievor. As well, we have con- cluded that the evidence before the employer and before this Board leads clearly to the assumption that the grievor is unlikely to maintain regular attendance in the future. However, we are moved by the argument of the Union that there has been no warning to the grievor to show the Ministry's concern with excessive absenteeism. A careful review of the documents put in evidence before us shows that the employer repeatedly counselled the grievor about the need for proper medical certificates to justify his absences, but never once did the Ministry mention the possibility of loss of employment for chronic absenteeism alone. As Mrs. Saltman said in Re Atomic Energy, it is unfair to terminate an employee without bringing the employer's concern to the attention of the employee in order to-give the~employee~a~chance~ to-improve. The grievor did not have this chance to improve. In conclusion, with some hesitancy, we are willing to give the grievor a chance to improve. He shall be reinstated upon the following conditions, with no loss of seniority but with no compensation for the period before his reinstatement. - 15 - Because the grievor was unwilling to provide the Ministry with the information necessary to make a full assessment of his situation, he is not entitled to compensation for time lost. We order the grievor reinstated as follows: 1. The grievor shall be reinstated to the employment of the Ministry as a Clerk 3 Supply as of two weeks.from the date of this award. 2. During each of the first two years of his employment after the reinstatement, the grievor must not be absent for any reason (other than vacations, weekends or statutory holidays) more than 8 days in total in the year. If he is absent more than this in either year, then .the Ministry may dismiss the grievor immediately. This prescribed rate of attendance is a condition of his reinstatement by this Board, so that failure to meet the condition vitiates his reinstatement. 3. During this two-year period, the grievor must provide proper medical certificates for $J absences for medical reasons. Done at London, Ontario, this 9c A. Reistetter, Member 1. 2. 3. 4. 5. - 16 - EXHIBITS Medical Records Documents Class Standard and Position Specification Absence statistics Grievance Form