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HomeMy WebLinkAbout1983-0588.Tugwell.84-05-28IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD OPSEU (Ed Tugwell) Grievor - and - The Crown in Right of Ontario (Ministry of Health) Before: P.M. Draper Vice Chairman ' J. McManus Member H. Roberts Member For the Grievor: P. Cavalluzzo, Counsel Cavalluzzo, Hayes & Lennon Barristers & Solicitors Forthe M.M. Fleishman, Counsel Crown Law Office Civil Ministry of the Attorney General Hearings: January 25, 1984 April 9, 1984 - 2 - DECISION The Grievor, Edward Tugwell, grieves his dismissal of July 27, 1983, and requests reinstatement and restoration of lost wages and benefits. The Grievor's employment with the ministry dates from 1970, and at the time of his dismissal he was employed as an Attendant 2 in the Oak Ridge Division of the Penetan- guishen.e Mental Health Centre. Oak Ridge is a maximum security psychiatric facility which accommodates some 300 patients and has a staff of approximately 200. This case, as the parties agree, is one of dismissal for innocent absenteeism. It is generally accepted that in such cases the employer must establish excessive absenteeism in the employee's record, and that the employee is incapable of regular attendance in the future. See Palmer, Collective , Agreement Arbitration in Canada, at p.425. The evidence before us establishes, as is conceded by counsel to the Grievor, a history of excessive, that is, innocent but unacceptable absenteeism. Consequently no purpose would be served by a recital of the details. Nor w we record the evidence of the Employer's considerable effor over a lengthy period, to get to grips with the Grievor's absenteeism and the latter's persistently unresponsive ill ts 1 attitude. The fact is that the Gri V absenteeism,-not for,his monumental on the Employers. Nevertheless, it July, 1981, to the date of his dism or was dismissed for the indifference to its effects s to be noted that from ssal the Grievor was under I - 3 - a mandatory medical certificate requirement; that in August, 1982, he was referred for a mandatory medical examination; and that it was not until the matter was before the Board that a medical certificate in respect of his last absence, attesting that he is fit and able to return to work, was presented by the Grievor. It is not disputed by counsel to the Employer that the Grievor is fit and able to return to work at the present time. .However, counsel argues, and we agree, that this fact does not settle the issue of the Grievor's likely future attendance. The absences that led to the Grievor's dismissal occurred, with only minor exceptions, as a result of an auto- mobile accident in 1975 or 1976, and a motorcycle accident in 1982, which caused what his physician has described as "neuro- muscular injuries and fractures." We have no timely and definitive medical prognosis in evidence upon which we might determine whether or not the Grievor woul d be able to maintain the level of attendance required to perform properly the duties of the position of Attendant 2 at Oak Ridge. In our opinion, the. results of the mandatory medical examination of the Grievor in August, 1982, do not constitute such evidence. Moreover, because of the origin; and type of the medical cond prepared to make that determi,nation absenteeism record alone. We think that the Grievor's future attendant tions involved;we~are not on the basis of the Grievor's it reasonable to conclude would be less likely to be adversely affected by some condition traceable to the vehicle accidents than it would be, for example, by some illness for which medical treatment was continuing or which, -4- by reason of its nature, was likely to recur. It is our view that in the circumstances present here the Grievor should be reinstated on a probationary basis. Accordingly, on February 2, 1984, we made an interim decision that theGrievor be conditionally reinstated, and convened a hearing to receive submissions on the question of the effective date of, and the conditions to be attached to, the reinstatement. The Board, having heard the representations of counsel and considered the respective interests of the Employer and the Grievor, hereby orders that (1) The Grievor shall be reinstated in the position fromwhichhe was dismissed by the Employer with effect from February 2, 1984, without loss of seniority between the date of his dismissal and that date and without compensation for that period; (2) The Employer shall give the Grievor reasonable notice to report for work and it shall'be a condition of the reinstatement that the Grievor comply with the notice; (3) The Grievor shall be subject to immediate dis- missal if, during the twelve months following his return to work he is absent, due to the medical conditions that led to his dismissal, in excess of the monthly average of sick leave absences of the other attendants at Oak Ridge. We make no order as to a limit of future absences of the Grievor not caused, or not solely caused, by the medical conditions that led to his dismissal. Any such absences remain to be dealt with by the Employer in the normal course. We retain jurisdiction in the matter so as to assist the parties in the implementation of this decision, if so requested. DATE.D AT Consecon, Ontario, this 28th day of &;ay , 1984. P.M. Draper, Vice-Chairman . J. McManus, Member u H. Roberts, Member