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HomeMy WebLinkAbout1983-0573.Couling.84-09-24-- Between: IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD Before: For the Grievor: For the Employer: OPSEU (William Couling) ~._... Grievor - and - The Crown in Right of Ontario (Ministry of Health) Employer E. B. Jolliffe, Q.C. Vice Chairman H. Simon Member G. Peckham Member A. Ryder, Q.C. Gowling & Henderson Barristers & Solicitors J. Callas Regional Personnel Administrator Ministry,of Health Hearing: May 23, 1984 -2- DECISION The grievor, William Couling, is employed with the Ministry of Health at the Oak Ridge Mental *Health Centre, Pcnetanguishene. Classified for the past three years or more as an "Attendant III," he is also, alike many of his co-workers, a Registered Nurses' Assistant. A special'feature of nursing work at Oak Ridge is that certain patients are prone to violence and thus physical re- - straint is sometimes-necessary. Inexperienced or casual staff may not always be capable of coping wisely with such patients. Apparently for this reason, management at Oak Ridge is extremely concerned about regularity of attendance and, in particular,the -- attendance record -of the griever. -- Mr. Couling's grievance, dated August 15, 1983, made / i. the following allegations: Violation of Article 51 and 53 I am being denied my entitlement to both sick leave and workers compensation by harassment and intimidation. The griever requested‘s Ministry inquiry into "the functions Andy capabilities" of management at Oak Ridge, and also withdrawals of letters relating to "absenteeism" and his "exoneration" from suspicions about it. I -3- Article 51 provides of course for the "Short Term Sickness Plan" and begins by providing that "an employee who is unable to attend to his duties due to sickness or injury is entitled to leave-of-absence with pay" on the terms and con- ditions set out thereafter. Article 53 is headed "Workmen's Compensation" and pro- vides that "where an employee is absent by reason of an injury or 7 an industrial disease for which a claim is made under The Work- men's Compensation Act (sic), his salary shall bq~paid for a period not exceeding ‘thirty (30) days if- an award -2s~ not made....." Other provisions in Article 53 relateeto cases where an award is made under the Act and the employer's obligations - thereafter. - ~~. The letters of which the grievor complains must be quoted in full, since they speak for themselves with,remarkable clarity. On July 7, 1983, Mr. J. Sajan, Chief Attendant, Wrote the grievor by registered mail, (Exhibit 3) as follows: C.nrently you are absent from work on a re-occurance of a W.C.B. claim, not yet substantiated by a medical certificate. A review of your attendance record for the past 3,1/Z years shows you have been absent due to illness as follows: : .- .~ __ - 4 - 1980 -___-_--___-______-_------- 14,1/Z days .&sent 1981 - 10 days sick, 63 days W.C.B.- 73 days absent 1982 - 20 days sick, 14,1/2 days W.C.B. - 34, l/2 days absent 1983 - From Jan 1 to June 30, 5 days sick, 10,1/2 W.C.B.--- 15,1/2 days absent. (Average absence for the past 3,1/2 years=39.3 days) Bill, a poor attendance record such as yours makes it difficult for your Suprvlsor to prepare shift schedules. Your co-workers cannot be given vacation or stat. days off. Overtime cost to replace you run high. Patients suffer from the overall negative effects these factors have on everyone. To say the least, your attendance record is totally unacceptable. For these reasons, I wish to meet~witN you and discuss your absences. I have scheduled a meeting for us in my office on Thursday, July 14, 1983 @ 1000hrs. The outcome of that meeting will have a ~definite influence on further actions I may initiate. Reguestirq the &in- istrator to review your attendance history and consider your continued employment at Oak Ridge. ;.: On August 2, 1983, Mr. Sajan wrote a longer letter to ._ _~--.--the-g~rievor (Exhibi_t 4). This_w_as_saidto_pe_l'delivered~,by__hand" ~~~~~__ withcopies-to Mr; L.W;~ McKrrrowT- Hospital Administrator, and-... Mrs. K. Finney, Director of Nursing. Headed "re Absenteeism - 1, Warning," it was as follows: Ch July 14, I met with you to discuss your current attendance and review your time sheets for the past three years. You were accompanied by Mr. William Weeks, your O.P.S.E.U. Representative. Your Fmployee Time Records show.ypu have been absent in 1980, 1981, 1982, and 1983 as follows: 1980 14.5 Days Sick = 14.5 Absences. 1981 10 Days Sick 63. Days W.C.B. = 73 Absences. 1982 20 Days Sick 14.5 Days W.C.B. = 34.5 Absences. 1983 5 Days Sick 10.5 Days W.C.B. = 15.5 Absences. (January 1, 1983 to June 30, 1983) -5- Average absence over past 3,1/Z years = 39.3. days per yeal-. At the outset of our meeting I asked you about rumors I had heard regarding you being off ill because you couldn't get vacation time approved. You adamantly denied this and I fully accept your word that this rumor was unfounded. When asked, you explained that the large majority of YO"l- absences result from a "chronic rotar cuff tear". You stated that you underwent surgery to repair the damage but you still have a recurring problem with your shoulders. when asked about your future prognosis, you could offer none except to say, "Sometimes I get up with it and sometimes I go to bed with it." You also say this affliction does not hamper you when called on to assist in restraining disturbed and aggressive patients. Your Representative, Mr. Weeks, a co-worker on your ward-agreed with your statement and went on to say he, in no way, feels endangered having you with him when called upon to deal with violent patients. During our meeting, you were clearly told high absent- eeism is totally unacceptable. Poor attendance records __~ ~~_ like yours, make it very difficult for your SupGvisor to prepare shift schedules. Your co-workers are unable to get time off. Overtime costs for replacement staff are excessive. Patients' prcqratmmes are not run to the fullest in a neqative environment prompted by the inabil ity for staff to get time off., *- was you-areunable to predict your-future health~.andthe-p ---y- ~- ~ -amount of time you will be absent,from~wollk_,_thffollow- ~._.~ -- ing course of action will be initiated. Over the next twelve months you are on an "attendance probation". I will continue to monitor your attendance record and will~meet with you quarterly to discuss your attendance. Following our meetings, a report will be forwarded to the Administrator and the Director of Wrs- ing. Bill, you should clearly understand, continued high absenteeism will result in my requesting the Wmin- istrator to meet with you, review your Rme Sheets and seriously consider your continued employment at this hospital. Should you have any questions now or in the future about this "attendance probation", please feel free to contact me. -6- ‘. :: .: .I Several points made by Mr. Sajan are noteworthy. Both letters included W.C.B. days as "absences" and the second letter referred to "absenteeism." Both letters spoke of it as "totally unacceptable." Both letters warned the griever that his employ- ment was in jeopardy and clearly implied he could be dismissed. The second letter purported to place the griever on "attendance probation" for 12 months, without disclosing any authority for such action. It is also noteworthy that both letters alleged "absences" over a.period of i?ree and one-half years totalling 137.5, an average of 39.3 days per-year. There were, however., 88 "days W.C.B." and the actual total-of "days sick" was 49.5 for an average of 14.1 days per year or about 1.17 days per month. These figures really require no further comment at this point. --'-- The-grievortestified-that-he -had-worked--at-Oak-Ridge- since July, 1971. He suffered injury from a fall at work in 1975. This became a W.C.B. case, and resulted in surgery on his shoulder in October, 1981. He was off work again for 14 days in 1982 due to illness and surgery, and 14.5 days resulting from another shoulder injury in a scuffle with a patient. In 1983 trouble recurred from his former injury and he received therapy, but his physician was not~optimistic about a complete recovery. He denies, however, that the shoulder problem has any "impact on the job." He said he had offered to take an examination by a physician of the employer's choice, but the offer was not accepted. .). ~,. -I- In November. 1983, and again in February, 1984, the, grlevor received letters, Exhibit 6 and 7, from Mr. Gord Byrtic.s (tnrn Chief Attendant) commending him on an improved attendance record, and ever, remarking (in the second letter) that his absences we're “below the hosp:tal average." Cross-examined, the griever said he could not allow an examlnatlon of his right shoulder without the const-nt of his own physiciafi. At times in 1983 the doctor had advised him TO stay away from work, but ht did go to work "becausr of the thr.cat hanging over.&." When he recrlvtd Mr. Sajan's "warning" he was actually "on compcnsatlon." He had shown Mr. Sajan's letters to his docto? and explained ht would have to go ifi "despite pains." T~i. dsctor suggested several times that he take more therapy. Mr. .~Sa]an was the only. wi-tness -call~.d_by-Mr-.-Ca~l.l.as~,_._. ~ who 1s the Regional Personnel Adrlinistrator for the Mlnlstry. For most c,f the rime since August, 1978, Mr. Sa,jan has been Chief AttendanT at Oak Kldge, with 222 subordinates. In lsstiing thr warning of July and August, 1983, Mr. Sajar: knew "me was off c,n compc-nsarlc,n but tit' had no indicatlor; Wh?" ht would rttl:rn" At hls,m~eting with the grlc-vr,r 'in July 14 there tias talk :;f tr,~ "r~m~,urs" about rht gl-lcvor , bu t h t' wa L sa:lsfzr~d :t,t,y r.ad nc, founda:L',r,. or. Salan added: "I made c!t.a: ‘I’ -. -8- that I was not questioning the validity of his reasons, but I was doubtful he could do his job." Cross-examined by Mr. Ryder, the witness said he became aware of the "rumours" after July 7 and before July 14. He agreed the rumours were groundless and also agreed that this was a case of "innocent absenteeism." He had intended the letter of August 2 to be a "warning." He was unable to explain the legal basis or authority for placing an employee on "probation" after 12 years of service. He said Mr. Couling's performance apprais- 8 .3lS (which were not produced) rated him as "excellent" when at work. "He's not a shirker," said Mr. Sajan. Asked if he had ever been too ill to'work, the witness~ said that not long ago he had been away for 90 days on sick leave recovering from a back problem. Asked further if he thought such a long absencewas "totally unaccf~tabl%;'TM~-~ Salan said there. -.-__,.__ was a difference in that he had overcome his problem and could. now function normally. It is difficult to understand why this case came to arbitration instead of being settled within the grievance procedure. 1 BY this late date in the history of labour-management relations, it should be clear on all sides that "innocent absent- eeism," whether by reason of disease or injury, does not consti- : : .r ..F.-.: .e .;$ : !,” . - -9- tutt’ just cause for dismissal, nor does it justify threats of dismissal. There may be extreme cases of prolonged absence and incapacity making it impossible for the employment relationship to continue. This case, however, never came near that criterion. It fell within the conditions expressly contemplated by Article 51 and 53 of the collective agreement. Since Mr. Sajan disclaims any suggestion that absences were not legitimate and frankly calls it "innocent absenteeism," his only defence for his warnings and threats is that absences cause serious staffing 'problems. WI.2 have no doubt that in an institution such as the Mental Health Centre at Oak Ridge, unexpected absences can cause problems. Nevertheless, those are problems to be solved by management, not by an employee who qualifies under Article 51 or Article- 53.-~ ~-It-~-is totally-unrealistic__to assume.. that., every-~-. employee will be able to work every' day-and-whollyyinconsistent-- -~'~ with the provisions agreed to by the parties in Articles 51 and 53. In particular, it is to be noted that Mr. Sajan has a "subordinate staff" of 222. He spoke in his testimony as though sick leave absences of 1.17 days per month are excessive, and ignores the fact that in many.collective agreements sick leave "credits" are accumulated at the rate of 1.25 days Per month. Moreover, to include W.C.B. leaves in a record of "absenteeism" is . .i, .;,: - 10 - obviously irrational. To do so would mean that an attendant seriously injured by a violent patient would acquire an inordinately high record of absenteei~sm --- a most unfair result. If the employer doubts that an employee's sick leave claims are legitimate, there is a remedy in Article 51.10 of the ‘?ollective agreement, which provides "where it is suspected that there may be an abuse of sick leave, the Deputy Minister or his designee may require an employee to submit a medical certificate for a period of absence of less than five (5) days." For any J period of more than five days a certificate is always mandatory. In view of the comments made herein, we do not think-it necessary to deal with the grievor's request for an inquiry~ into management at Oak Ridge. There was no justification for the letters of July - 7-- .- -.. and August.2, 1983 or the period of so-called "probation." The- decision of this Board is that the letters must be withdrawn and removed from the employee's file. If in fact any leave with pay has been refused, the equivalent thereof shall be granted upon proof that the grievor qualified under Article 51 or Article 53 for leave with pay, and a letter to that effect from the grievor's physician shall be sufficient proof. If the parties do not agree on implementation‘ of this decision, We retain jurisdiction. rj . ; . 5 - 11 - To the extent heretofore stated, Mr. Couling's grievance is upheld. DATED at. Rockwood, Ontario, this 24th day of September, 1984. H. Simon, Member EBJ: sol i G. Peckham, Member