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HomeMy WebLinkAbout1984-0067.Greeven.85-01-10l> ONT.RIO CROWN EwLO”EES GRIEVANCE WTbEMENT FIN THE MATTER OF ARBITRATION Under THE CROWN EMPLOYEES .COLLECTIVE BARGAINING ACT THE Between: Before: For the Grievor: For the Employer: Hearings: Before GRIEVANCE SETTLEMENT ABOARD OPSEU (Waltraut Greeven) Grievor - and.- The C.rown in Right of.Cntario (Ministry of Health) Employer 'R. L. Verity, Q.C. Vice Chairman J. McManus Member E. R. O'Kelly Member ;Zu2se;aliare Gowling & Henderson E?. Quick Counsel Legal Branch Ministry of Health November 7, 21 and 22, 1984 In a grievance dated Decemb~er 21, 1983, the Grievor alleged.unjust dismissal and sought reinstatement with full compensation together with interest for all lost! wages and ben- efits. / At the outset of the Hearing, Counsel for the Union raised a pre liminary matter that on the basis o f documentation agreed upon b,y the Parties (some 43 documents) there was no culminating incident established. Accordingly, the Union argued that the Grievor should be reinstated forthwith on the basis that the Employer's action was improper and unjustifi- able. Counsel for the Employer argued that there was a - 2 - DECISION -- ---- In this matter, Mrs. Waltraut Greeven was dismiss'ed on December 6, 1983 from her employment as a.Data Entry Oper'- ator with the OHIP Toronto District Office of the Ministry of Health. The action was taken by the Ministry pursuant tog ,Section Z(3) Of the Publi'c Service Act for reasons of excessive innocent absenteeism. The Ministry characterized the matter as a non-disciplinary discharg.e. It was alleged that the dismissal was justified for cause as aaresu'lt of a culminating incident which triggered a review of the Griever's record of absenteeism and an uncertain prognosis of regular attendance in the future. - 3 - culminating incident and requested the opportunity to'adduce evidence to that effect, including the presentation of medical testimony. The Board reserved its~ decision on the preliminary matter and proceeded to hear the merits of the griev'ance. eat the'conclusion of the Employer's evidence,'Counsel for thee Union incorporated the application for non-sui The Grievor, at age 54, is a long service employee preliminary objection into an t. with the Ministry and her seniority dates back to February 4, 1970. As a Data Entry Operator, the Grievor is required to transcribe OHIP information~ on Video Display Terminals. Generally, the evidence establishes that the Griever is a good employee. However, the Grievor's Supervisor, Mrs. Dillman, de- scribed the Grievor as "an average employee." T,he Grievor's most recent job evaluation dated July 28, 1983 (Exhibit 23) establishes the fact that she possessed "a very good knowledge of her .job," is organized, "identifies problems" and "takes. corrective action;" is "always soft spoken and courteous,' and has "good verbal communication." That evaluation also-contains the following commtnt under the heading of Job Performance: "P~obr attendance increases work load for peers. While acceptable productivity standards have been maintained during the past year with the exception of,Februa,ry 1‘983, the high level of absenteeism - 4 -. continues to be a serious problem in over- all production of services." From about 1977, the Grievor has suffered from serious health problems including "angina pectoris" and "fibrositis syndrome" which have caused the from work on numerous extended absences and absences. G rievor to be away i nfermittent The Employer discharged the Grievor as a result of her extended absences from work from 1979. It woul d be inappropriate for the Board to detail those absence s without first determining whether the Employer had established a culminating incident. The alleged culminating incident in question was the Grievor's absence from work for a continuous period of 40 days from July 21, 1983 to and including September 16, 1983. The Grievor's physician, Dr. Elmira M. Buxton, wrote 'Ilowing medical certificate on July 21, 983 (Exhibit the fo 17): "Mrs. Greeven is not well at present and is in need of four weeks sick leave for medi- cal tests and treatment." Dr. Buxton prepared,a second and somewhat more detailed medical certificate on August 16,~1983 (Exhibit 18): - 5 - "T.his morning I have seen Mrs. Greeven again and find that she is still' having chest and arm pains and I have referred to a specialist and her appoi.ntment is finally this Thursday. She is not yet able.to work due to the weakness and chest pains on .a little walki.ng. Therefore, I advising another 4 weeks, until about September 16th. She will keep in touch regarding her progress." Mrs. Janet Dillman, the Toronto District Claims Mana- ger, and the Griever's immedi ate Supervisor, testified that she, expressed concern to Toronto Dist'rict Office Director, Ian Searle, upon receipt of.Dr. Buxton's first medical certificate. Mrs. Dillman suspected that the Grievor was ~repeating a pattern of lengthy absences; however, the decision was made to take no action until the length of absence had been determined. Mrs. Dillman's suspicions were further confi,rmed by Dr. Buxton's second medical certifi~cate dated August 16. The Grievor was sent a letter dated September 8,.1~983 on Ministry of Health letterhead (Exhibit 2) signed by M. Dorsay, Minis,try Rehabilitation Co-ordinator. That letter read in part as follows: "1 would like to bring to your attention the Rehabilitation .Program which has been implemented in this Ministry. Its purpose - 6 - is to dSSiSt employees who have been absent from work for an extended period of time due to illness or injury or, who have re- turned to work from an illness but may still be experiencing difficulties. This program ,is co-ordinated by the Employ- ee Counselling Services, Ministry of Government Services. I am enclosing a bro- chure to acquaint you with the coun- sellors. The Rehabilitation Program is designed to provide counselling support and addresses concerns related to health care, vocational assessment and adjustment, job placement as well as efficient use of em- ployee benef its... A counsellor from the Employee Advisory Service. will be contacting you in the near future to di scuss the program and how the services.may be of benefit to you. It is a valuable program, and if you feel ~you need assistance, I would encourage you to take advantage of it." In mid-September 1983, Mrs. Dillman met with Mrs. Dorsay and Ministry Personnel Officer John Phi.llipson to con- sider theiimplications of the Grievor's absenteeism. During that meeting, a dec'ision was made to recommend dismissal of the Grievor for reasons of innocent absenteeism. On September 20, 1983, Mrs. Dillman sent a Memorand~um (Exhibit 19,) to Ian Searle with supporting documentation which suggested discharge on the basis of innocent absenteeism. On October 30, 1983, D. M. Buchanan, Director of the Operations Branch of OHIP wrote to the Grievor as follows (Exhibit 21): - 7 - "Over the last several years your absentee- ism from work has been significantly high, considerably greater then the average for employees ,in the Toronto District Office. This absence has, I understand, been due to your health problems., Medical examinations at,the Employee Health Centre, and reports from Specialists to w,hom you were referred, indicate that due to your chronic health problems there is no likelihood of any improvement in your attendance. Your high incidence of absenc,e from work has placed a considerable strain on the resources of the District Office, to meet production requirements. This has become critical due to current staff restraints, and increasing Data Entry workload. We must now conside~r whether your employ- ment with OHIP can be continued. You ar~e invited to a meeting with me and Senior Management of Toronto District, to be held on Wednesday, November 23, 1983 at 1:30PM in your District Directors Boardroom,~ Toronto District Office. You may, if you desire, be accompanied by an OPSEU repre- sentative. If you do not attend the hearing, the hear- ing may be~proceeded with in your absence and you will not be entitled to any further notice in the proceedings." A meeting was held on November 23 in which Mrs. Dillman, Mr. Buchanan, Mr. Searle and Mr. Phillipson were in attendance. The Grievor chose not to attend the meeting. The Grievor's record of absenteeism was reviewed in detail together with the most recent medical report of Government - 8 - phy,sician Dr. T. Rewa dated February 10, 1983 (Exhibit 4). That letter reads: "K,indly refer to my memos dated September 2 and September 28, 1982 in regard to the above-named employee. Mrs. Greeven was seen by Dr. L. Sternberg and Dr. 0. Gladman as arranged. Based on physical examination at the Employee Health Service and report of the.Specialists, Mrs. Greeven has recognized ongoing medical problems such as Angina Pactoris and Fibrositis. Her absenteeism, due to these chronic health problems,, more likely will remain in the future higher than average employee." Also reviewed was Government physician Dr. L. J. Berka's letter of October 29, 1980 (Exhibit 10) in which the doctor concludes: "It was suggested to Mrs. Greeven that she should be re-evaluated by several special- ists, primarily a rheumatologist and a neurologist. If no organic cause of her illness is found by the experts opinion she should be assessed by a psychiatrist. I told~her I would arrange appropriate appointments for her at her convenience. Patient refused all my suggestions stating ' that in past four weeks she goes to a new lady family doctor and she is so far happy with her and she would follow her advice. The copies of our laboratory data were sent to this Dr. Buxton. It is my opinion that under these circumstances Mrs. Greeven's attendance and performance is unlikely to improve." \ .:, ,’ - 9 - In accepting the,recommendat ion .for dismissal, Ian Searle's warning letter to the.Grievor dated July 29, 1982 (Exhibit 14) was also considered. The final paragraph of that letter states: "You should be aware that unless your attendance can be brou~ght to a more accep- table level, we may regretfully have to consider termination of your employment with this Ministry.." Subsequently, on December 6, Mr. Searle handed the Grievor a letter of termination dated December 1, 1983, signed by Operation Branch Director D. M. Buchanan (Exhibit 28). That letter read in part: \ "I am forced ,to take this drastic action becau-se of your excessive absenteeism over the past five ~years, and'the fact that re- cent medical information indicates.that your health problems will result in your absenteeim continuing to be above normal." review wi Mr. Phillipson was present on th the Grievor the benefit ent Mr. Searle testified that 285 itlement. , people are employed at December 6 in order to the Toronto ,District Office which is basically an OHIP claims. processing operation. In exe e ss of one million claims are pro- cessed per month. In his tes t imony, Mr. Searle acknowledged ‘1 that the Grievor's attendance subsequent to her return.to work on September 16, was not cons i dered. in the decision to - .I - lo- dismiss. The evidence is cleat- that from September 16 to December ,6, 1983, the Grievor had,been absent from work on only two occasions. He also acknowledged t~hat it was possible that until the Grievor received Mr.Buchanan's letter of October 30 she was unaware that Mr . Searle also test i it had.all necessary made,to term i nate the Griever's employment. Dr her absenteeism,record was under review. fied that the Employer was satisfied that medical information when the decision was Rewa examined the Grievor as a result of a manda- tory medical examination on August 24, 1982. From the Grievor's medical history, Dr. Rewa made the determination that examinations by specialists would be appropriate. Ac'cording'ly, the Grievor was examined by Dr. Sternberg (a cardiologist) on October 1, 1982, and bye Dr. Gladman (a rheumatologist) on November 23, 1982. Dr. Sternberg's report dated October 4, 1982, concluded that the Grievor's chest pains were typical of an.gina pectoris and recommended'two further tests - a treadmil 1 test and an echo cardiogram. It was Dr. Rewa's evidence that these two additional tests were not performed. ~Dr. Gladman's report of December 21, 1982 (Exhibi 33) confirmed that the Grievor suffers from fibrositis syndrome. Dr. Gladman recommended a series of possible treat- ments for the benefit of the Grievor. Copies of both medical reports were forwarded to Dr. Buxton, the Grievor's physician, for possible follow-up. - ll- Neither specialist was asked to provide an .opinion regarding the Grievor's future attendance .at work: It was on the basis of these two specialist's medical reports that D~r. Rewa prepared her.report dated Feburary 10, 1982. Dr. Rewa acknowledged in cross-examination that no one from the Ministry had c,ontacted her for a further opinion subsequent to the February-10 report. Much of the evide~nce focused on ~detaijs of the Grie~vor's attendance problems since 1979, and a comparison 'of those results with Data Entry Operators, District Average Absenteeism, OPSEU Operators Branch Ave.rage Absenteeism, and Minstry Averages. Mr.'Phil,lipson testified that creates staff morale problems in an off production of services. He also testif absenteeism presents the Employer with a burdens. excessive ab,senteeism ce oriented to ed generally that dditional financial At the conclusion of the Employer's case, Mr. Paliare made an application for non-suit, and in so doing, advised the. Board that the Union elected to call, no evidence. The basis of the non-suit was that there was insuffici~ent evidence adduced by the Employer to call reply evidence. Mr. Paliare argued that~the Employer had not established a prima facie case. - 12- On behalf of the Employer, Ms. Quick con,tended that the Employer had established not only a prima facie case, but also had adduced sufficient evidence to justify dismissal. In discharge cases involving innocent absenteeism, it is well established that Boards of Arbitration generally assess evidence to determine: (1) The past record of absenteeism; (2) Then prognosis for future attendance at work. In the instant grievance, the Employer alleges that there is a culminating incident, namely the 40 day continuous absence, which triggered a review of the Grievor's absenteeism record since 1979. Previous Grievance Settlement Board Awards such as Re - Moss and Liquor ControlBoard of‘Onta~ri2, 62/76 (Beatty) and e Sauve and Ministry of,Correctional Services, 40/77 (Swan) have adopted the rationale that a culminating incident is necessary to invoke a record of absenteeism ,in order to justify dis- charge. Vice-Chairman Swan commented at page 5 of the Sauve decision: "As the Board stated in Re Stewart,~27/76, both the past record and-.-e proq- nosis must justify the imposition of dis- charge as a penalty for absenteeism. In - 13- 'the absence of a culminating incident, it would.be idle speculation to determine that the future prognosis is total ly bleak." And similarly at~page 7, Vice -Chairman Swan states: "The law as to the requirement of proof of just cause for discharge is clear, and once the vital link of a culminating incident is missing this Board cannot act on its own view of the employee's past record any more than i.t can allow an employer to do so. The clear separation between culminating incident and past record must'be main- tained, particularly because the Board fully intends to continue its practice of hearing evidence of a past record while re- serving its decision on the existence of a culminating incident. To intermingle the two would, at th,e very least, throw that practice into doubt." On the evidence presented, the Board is unable to find that the 40 day absence is a culminating incident. The delay factor alone robs the incident of any such character- ization.~ Here, it is understandable that the Employer chose to take no action unti.1 the length of the Griever's absence had been determined. It is less understandable that the Employer would wait some 81 days to take action against the Grievor following her return to work. Simply stated, there is no inci- dent which is in close proximity to the discharge that can be relied upon by the Employer. - 14- The evidence is clear that from September 16, 1983 to December 6, 1983, the Grievor worked for some 2-I/2 months with virtually an unblemished attendance record. In addition, at the time of the dimissal, the Grievor had some four weeks holiday time remaining to her credit. In the circumstances, the Board must find that the Employer failed to take action in a timely fashion. In our opinion, 2-l/2 months is an unreasonable length of time for an employer to wai,t prior to dismissal of an employee under the pretext of a culminating incident. In addition, no credible explanation was advanced by the Employer in an attempt to justify the delay. Clearly, the Grievor first became aware that her 40 day absence was under review when she received Mr. Buchanan's letter dated October 30, 1983. U,ndoubtedly, that letter came as a surprise to the Grievor who had by this time received a letter from a representative of the Ministry of Health setting out the terms of the Rehabilitation Program: The Board finds that the Employer sent o,ut contradic- tory andmconflicting messages to this Grievor. If, as the evi- dence indicates that by .September 20 even Mrs. Millie Dorsay recommended, discharge, why then, was the Grievor not so advised? In stronger pos this matter, the Employer would have been .in a ition if the Grievor had been suspended following . . . . - 15- her return to work and advised at that time that her attendance problems were under inves On the ev idence igation. the Board is compelled to find that there was no meaningful investigation by the Employer following the Grievor's return to work on Septebmer 16. What transpired subsequent to that date was concentrated lobbying, primarily~on the part of Mrs. Dillman to convince Messrs. Searle and Buchanan of the merits of dismissal. Evidence presented at the hearing established that the Employer was advised.that the Grievor had been hospitalized forsome period during her 40 day absence.. There is no evidence before the Board which Pstablishes the reason for, or the duration of that hospitalization. Clearly, the Employer did not concern itself with that type of relevant information. Once a culminating incident has been established, the task of an Arbitration Board is to test the'propriety of the Employer's respon~se by examining the record of past absenteeism and the prognosis for future regular attendance. Having found as we do, that ther~e was no culminating incident, there is no need to consider the above tests. Had the,Board been called upon to assess the prognosis for future attendance at work, we would have been confronted by a paucity of current medical evidence. Dr.~ - 16- Rewa's guarded prognosis of February 10, 1983, does not establish a totally bleak future employment pattern and accordingly would have been little assistance to the Board. It is difficult to understand why Dr. Rewa was not called upon by the Employer for a further opinion subsequent to h,er letter of February 10. It is understandable that supervisors and other man- agement personnel do become frustrated and aggravated by the employee whose absences are in excess of the norm. In the instant grievance, we accept the Employer's evidence that ex- cessive absenteeism creates staff morale problems, production of services problems, and the additional unwanted cost factors associated with absenteeism. By the same token, employees should not be dismissed prematurely for reasons of innocent absenteeism. In our opinion, every alternate course of action should be canvassed for the long service employee. Vice-Chairman Jolliffe drew attention to one such possibility in OPSEU (Jeanette Jones) and Ministry of Correctional -- Services,537/82 where he made the.following c'omment at page 27: "Our second ground for upholding the g,rie- Vance is obvious: the collective agreement expressly contemplates that 'innocent ab- senteeism' calls for compensation rather than the extreme penalty of dismissal. Article 51.1 is as follows: E'ffective the first day of April, 1978, an employee who is unable to attend to his dutie,s due to sickness or injury is en- tit1 foll I;; (ii) sala - 17- ed,to leave-of absence with pay as ows: , with‘ regular salary for .the fir~st six working days of absence, I with seventy-five (75%) of regular ry for an additional one hundred and twenty-four (124).working days of absence in each calendar year. The above is of course subject to other re-~ quirements in Article 51 that the~emplo;lee submit medical certificates in respect of absences for more than five d.ays or even shorter absences if demanded by management." And again at page 29 Vice-Chairman Jolliffe states: "It is easy to.understand~that the Superin- tendent can be frustrated or exasperated by the expense and inconvenience of absences in excess of the average. Nevertheless, that is no excuse for ignoring the plain meaning of Article 51 in the agreement --- or o.verlooking the fact that some absences inevitably exceed the average." For the.above reasons, the Union's motion for a non-suit must succeed and this Grievance is allowed. The Board finds that the Grievor was dismis.sed without just cause. Accordingly, the Grievor shall be forthwith reinstated to her former position as a Data Entry Operator with compensation for all lost wages and benefits and with no loss of seniority. The ' Board shall retain jurisdicti. on in the event of any difficulties regarding the qu antum of' compensation. - 18- DATED at Brantford, On'tario, this 10th day 'of january 1985. _----- mhard L. -~--_- Veri'tT;-Q.C. - Vice-Chxr%z "J. kHanus" -----~ -- J. McManus - Member _---__ "; dissent" see attacbzd A---- _-_--_--- --- E. R. O'K'elly - t!ember' /