HomeMy WebLinkAbout1984-0766.Suppa.85-10-04IN THE MATTER OF AN ARBITRATION.
Under
TELEmioNEt rrs/soe- 0999
766184
THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT
Before
THE GRIEVANCE SETTLEMENT BOARD
Between: Canadian Union of Public Employees Local 767 (Joseph Suppa) Griever
And
The Crown in Right of Ontario (Ontario Housing Corporation and The Metropolitan Toronto Housing Authority) Employer
Before: E. B. Jolliffe, Q.C. Vice-Chairman R. R. Russell Member D. B. Middleton Member
For the Grievor: T. Edwards Representative Canadian Union of Public Employees, Local 767
For the Employer: A. P. Tarasuk Consultant
Central Ontario Industrial Relations Institute
Hearing: May 14, 1985
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DECISION
The grievance of Mr. Joseph Suppa arose following his
termination of employment with the Metropolitan Toronto Housing
Authority, said to be effective July 23, 1984. On July 26 he
presented a grievance alleging that he had been unjustly
dismissed.
A& the outset of the hearing in this case , a question
was raised regarding the status of the Authority under the Crown
Employees Collective, Bargaining Act and the Public Service Act.
In response, counsel for the Employer, Mr. Tarasuk, filed a
.letter dated Jun~e 4, 1985, in which he referred to the.relevant
provisions of the two statutes and also an Order in Council
passed on June 24, 1980. He concluded his letter with the
,following statement:
In summary, it is our respectful submission that the Public Service Act does not apply to Crown employees of the Metropolitan Toronto Housing Authority and inthe alternative thattherehas been aproperdelegationof authority by the Deputy Minister to the Manager of the Housing Authority, Mr. P.A. Peterson, to effect ths termination of Mr. Suppa.
In our opinion, however, the matter is decided by a
provision in the collective agreement between the Ontario Housing
Corporation and the Metropolitan Toronto Housing Authority as
Employer and Canadian Union of Public Employees, Local 767, as
bargaining agent. Article 9 of the agreement, which became
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effective on January 1, 1984, contains the following provision:
"Where the Grievance Settlement Board determines that a
disciplinary penalty or dismissal of an employee is excessive it
may substitute such other penalty for the discipline or dismissal
as it considers just and reasonable in all the circumstances."
It seems clear that this Board has jurisdiction to adjudicate on
the grievance of an employee covered by the provisions of the
collective agreement. It is understood of course that in the
employer's submission the termination of Mr. SupRa was not
disciplinary, i.e. that he was terminated for "innocent
absenteeism."
The emp1oye.r called no witpesses,.relying entirely on
Exhibit 6, ,which was agreed to be an accurate record of the
griever's employment and attendance throughout the period from
1979 to 1984, together with brief references to the original
hiring on January 28, 1971, and a series of injuries suffered by
the grievor in the course of his employment between March, 1971,
and June, 1984. Reference was also made to other exhibits. On
the other hand testimony was given by the grievor himself and by
.the operator'of a billiard parlour in which the grievor began
work in February, 1985.
In brief, the case for the grievor is a simple one. He
went off work on June 5, 1984, and the uncontradicted evidence is
that he was on Workers' Compensation from that date until January
8, 1985. He filed a medical certificate on July 12, but
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according to him it was refused by the employer, and while.on
compensation he was advised of his termination in the last week
of July, 1984. The case therefore raises the issue of
termination of an employee while on compensation under the
Workers' Compensation Act. Is it just or reasonable for an
employee to be terminated while absent for reasons acknowledged
by the Workers' Compensation Board to be legitimate?
c The Employer's position is that the grievor'si record of
attendance, at least from 1979 to 1994 was highly unsatisfactory,
even though many of the absences were due to'compensable
injuries. Exhibit 6 sets out the record of attendance from
January, 1979 to July 20, 1984; Exhibit 6 also recites a series .
of accidents, starting in Marchi 1971, some'of which were .
compensable.
The Employer's "attendance summary" for the period from
c January 1, 1979, to July 20, 1984,'reveals significant
information.
In the year 1979 the grievor was absent for 12 days, so
that his percentage of days lost was 5.08, which compares with a
total for maintenance employees of 22 days or 9.32 per cent.
For the year 1980 the grievor was absent for 2 days,
being a percentage of .8 as compared with a maintenance
employees' average of 17 days or 7.17 per cent.
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For the year 1981 the grievor was absent 12.5 days for a
percentage of 5.29 as compared with maintenance employees' days
lost of 19 'or 8.05 per cent.
However, in 1982 the grievor lost 117.5 days (of which
32 were days under suspension) which amounted to 50.86 per'cent
as compared with 15 days lost by maintenance employees or 6.49
per cent.
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. In 1983, the grievor was absent 211 days being a
percentage of 91.34 days as compared with 15 ~days lost by.
maintenance employees or 6.49 per cent again. .'.
In 1984, from January 1 to July 20, the grievor lost 98
days,or 70 per cent as compared with 16 days lostbymaintenance
employees or 6.92 per cent.
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Thus it is apparent that in the years prior to 1982 the
griever's attendance record was considerably better than the
average. Moreover, most of the absences in the last two and one
~half years were due to compensable injuries. However, the
suspension of 32 days in 1982 was due to the unexplained absence
of the grievor from August 5, when his vacation ended, .to
September 20, when he returned to work without having notified
management where he was. This appears to have been the only
disciplinary penalty on his record, although he received a strong
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letter dated September 14, 1983. The suspension letter of
September 23, 1982, and the warning letter of September, 1983,
are erroneously and rather carelessly described in Exhibit 6 as
"Counselling Letters". Such letters containing references to the
grievo,r's absence, coupled with th8 threat of dismissal, have a
strong disciplinary tone and it is unrealistic for the employer
to claim that they are based entirely on "innocent absenteeism"
and that no discipline was intended. For example, the letter to
the grievor~from the seniorproject manager dated September 14,
1983 contained the following statements:
Areviewof the absentee rates throughout the Metropolitan Toronto Housing Authority has just been concluded. This included an examination of your absenteeism with the Housing
Authority. .
From his information, it is apparent that you are
experiencing a problemof absenteeism. You have been absent a total of 208.5 days as follows:
1 January 1982 - 31 &&nber 1982 117.5
1 January 1983 - 30 June 1983 91
Since there is a responsibility on each and every employee to maintain an acceptable level of attendance, your level of absenteeism cannot be disregardednor allowed to continue. Please be advised, therefore, that your attendancerecord will continue to be carefully monitored by your Supervisor.
Should you lose further time away from work for any reason
whatsoever you will be placed under an intensive counsellirg programme in an effort to eliminate this problem. Should your attendance not imprcw8 to an acceptable level within a
reasonable period of time, the Authority will consider releasiq you frcm employment.
This is to emphasize that although your failure to respond may result in the termination of your employment, this is nX a'disciplinary procedure but designed solely to eliminate absenteeism an3 time lost for all reasons.
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You are requested to attend a meeting with your Supervisor and myself at 10.00 a.m., Friday, 23 September 1983, in order to discuss and review the particular situation relating to your attendance.
The same disciplinary note was sounded in a memorandum
placed on the record by the project manager on September 23.
Addressed to the District Manager and others and headed "He
Attendance Improvement Programme' the memorandum was as follows:
On Friday, September 23, 1983, at 10.00 am, Mr. J. Suppa attended a meeting to discuss his absenteeism with the
Hosing Authority.
In attendance was Mr.'Ferracane, Senior Maintenance Supervisor, Mr. Art Icmbard, Union Representative, Mr. Supps and the writer.
Mr.Suppa hadvery little to say regarding his absenteeism ' other. than that he .is still in receipt of Workmans Compensation, he still is under his doctors care and he still
is rrot.fit to cane to work.
Area staff emphasized to Mr. Suppa.that the Attendance ImprovementPrqrammeisnorrdisciplinarya~thatstxxldhis attendance not improve to an acceptable level, termination could bebasedon failure tomeetcontractobligations.
The employer's position was very clearly set out in the
letter sent by registered mail to the grievor on July 20, signed
by Mr. P.A. Peterson on behalf of the Metropolitan Toronto
Housing Authority:
In reviewing your absenteeism record since your date of commencement of employment, January 28, 1971, I rote that you have been unable to sustain an acceptable level of attendance.
In a letter dated September 14, 1983 from S. Nugent, Senior Project Manager, you were advised that your level of
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absenteeism was unacceptable and that if your attendance did not improve to an acceptable level within a reasonable period of time, the Authority would consider releasing you from employment for non-availability of work.
You were absent frcm March 3, 1983 to July 18, 1983 and from July 25, 1983 through April.2, 1984. Your most recent
absence commencing June 5, 1984 and lasting to present. Additionally you produced a medical certificate dated July 12, 1984, in which Dr. Astaphan indicates that you are disabled and will be for an indefinite period of time.
In view of your excessive absenteeism ard unavailability for work and the unlikelihood of your return to regular employment as evidenced by your toctor's Certificate we can only presume that you are unable to meet reasonable expectations of yailability of work.
Therefore,please be advised that your employmentwiththe Metropolitan Toronto Housing Authority is terminated effective July 23, 1984.
Please be advised that all monies owing will be forwarded
toyoUPranptlY*
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There are several curious features of the letter quoted
above. The first is that although it purports to explain that
the absenteeism record has been reviewed since hiring in January,
1971, and alleges that an acceptable level of attendance has not
L. been sustained,no reference whatever is made to the fact that in
the years 1979, 1980 and 1981 the grievor's attendance had been
much better than the average for maintenance employees. Further,
no reference is made, to the fact that according to Exhibit 6 the
employee had been assessed on one or more occasions as performing
his work at an average or above average level. Another curious
feature of the letter is that there is no reference whatever to
the fact that the grievor was at the time on Workers' Compen-
sation. It is as though the Employer was totally ignorant of the
/ reason for absence,
which is not credible.
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To ignore the matter of Workers' Compensation is all the
more remarkable having regard to the provisions on that subject
made in the collective agreement; Article 18.07 provides for
advancesbythe Employeruptoamaximumof four weeks' pay until
such time as a claim is approved by the Workers' Compensation
Board. Article 18 goes on to provide in paragraph (ii) as
follows:
When an employee is absent by reason of incapacity on account of an accident occurring whileondutyand an award ismade
by the Workers' Compensation E+oard,he shall be entitled to receivethedifferencebetweenhis salary or wages and the amount of such award for the first three (3) monthsof such
award and thereafter he shall be entitled to receive the difference between his salary or wages and the amount of such award to the extent of his accumulated sick leaved credits. ,.
The ~physician's certificate referred to in the
termination letter was that of Dr. George M. Astaphan. Dated
July 12, 1984, it was as follows:
Re Mr. Joe (Giusepps) Suppa
As of today's examination Mr. Suppa will be off work for an indefinite period.
I will keep you posted as to his progress.
The above certificate was stamped as received by the
Metropolitan Housing Authority on July 13, 1984.
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The testimony of Mr. Suppa is that he saw Dr. Astaphan
about every two weeks from July until January, 1985, when the
physician 'informed him that he was fit to work again. Dr.
Astaphan also signed a certificate dated February 21, 1985,
stating as follows:
Mr,Suppa was able to return to light duties on January 8,
1985, and to full duties on February 6, 1985 as was recorded on progress relzorts suhnitted to the WC-B.
On examination today, Mr. Suppa is doirg well, ard he is able to perform his normal duties. i
The above certificate is Exhibit SE. Its admissibility
was objected to by counsel for the Employer, but it is clearly
relevant, representing the opinion of .the physician as of
February 21, 1985. By that time Mr. Suppa had obtained
employment with the billiard parlour previously mentioned. The
proprietor, Mr. John Livolsi, testified that he became the
grievor's partner and that all the cleaning and lifting work at
the establishment as of May, 1985, was being done by the grievor,
and further, that the grievor had taken no time off for sickness
or other reasons. Mr. Livolsi said that he had known the grievor
for a long time but the grievor never worked for him previously.
He himself, he testified, is engaged inthe real estate business.
Unfortunately, there is no evidence whatever that the
Employer had in its possession any information regarding the
grievor's condition or the probability of his return to work I
r other than Dr. Astaphan's certificate of July 12, 1985. Nor is \
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there any evidence that the grievor himself obtained or produced
the kind of evidence which would be relevant in respect of the
prospects for his recovery.
The prevailing arbitral jurisprudence relating to so-
called "innocent absenteeism" has been neatly summarized in the
second edition of the Brown h Beatty text as follows:
As a general stardard, arbitrators are inclined to the view that such a stage will have been reached when it can be said that a disability or an absence caused by some illness has "undermined" the employment relationship or caused it to be "irreparably and fundamentally breached' or rendered it totally "moribti". Essentially, in determininf when it is appropriate for an employer to terminate ore alter the employment relationship of an employee who suffers some illnessorinjury, whichcauseshim to absent himself from work or renders him unable to discharge the duties assigned tohim, arbitrators seek to ascertain and measure the extent to which the employee's condition has prevented and in the
future will likely inhibit him fran fulfilling his employment cbligations. (p.371)
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Alttoqh there is Sane division of opinion on the point, many arbitrators have required the employer to bear the onus of establishing the reasonablenessof its prognosis as to the employee's future attendance. Accordingly, where the employer fails to warn the employee that if his absenteeism problem does not correct itself he will lose his job, arbitrators have concludedthatlittle confidence could be placed in the employer's conclusion that the employee is incapable of rectifying his attendance record. In assessing the employer's determination, arbitrators usually give
significant weight to, at-d ideed may require the employer to secure, a properly prepared and duly qualified medical opinion. In the result, if s.uch evidence substantiates a
prognosis that the employee will probably be incapable of regular attendance in the future, it will not likely be disturbed. Obviously, the result will be otherwise where it is con&&d the prognosis is not supported by the evidence, is in error, or notbona fide. Furthermore, not only must undue absenteeism in the grievor's past record and an
incapacity for regular attendance in the future be shown, but arbitrators may also require that the employer prove that it
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has acted fairly and without discrimination towards the
grievor by demonstratiq that, as against other employees in the plant or in comparison to others as described in the reported awards, he has been treated equitably. Although not
obliged to prwe that the griever's attendance record is the worst in the plant on some precise mathematical formula, it has neverthelessbeen held that an employer has a positive . obligation to show that, as against some reasonable standard, the griever's record warranted the action taken.
In applying the standards described above., it seems to be the case that arbitrators are generally reluctant to sustain the termination of a person's employment simply on the basis
of an absenteeism record which, thoqh cheguered, is bona fide. Thus, in many instances of purely blameless
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absenteeism, arbitrators have either upheld the grievance
completely or ordered reinstatement on terms requiring the employee to meet specified conditions, such as a stipulated standard of attendance over some period immediately
following reinstatement. 'l?~ support the termination of such persons arbitrators very frequently require something more than the record of absenteeism. (pp.373,374,375),
In this case there was no "prognosis" worthy of .the
name. All the Employer had was Dr. Astaphan's certificate of
Julyl?, whenhe wasobviouslyin nopositionto predicthowlong
the grievor would be "off work" and, whether he would later be
able to perform his normal duties. At the same time the Employer
C~ was well aware that the grievor had been on compensation several
times between .1971 and 1979 but recovered sufficiently to achieve
an excellent attendance record in 1979, 1980 and 1981. It has
not been explained why that three-year record was totally ignored
in the termination letter of July, 1984. Nor has the Employer
offered any evidence to suggest that the Workers' Compensation
Board was wrong in awarding compensation (which can only be done I
for legitimate reasons) in 1983 and 1984.
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There was language'used by the Employer revealing that
the proper approach was not taken in considering the grievor's
case.
For example, it was said in the letter of September 14,
1983 (quoted above) .that:
Should you lose further time away from work foranyreason whatsoever you will bs placed tier an intensi~counselliq
prcgrarsae..... j,
This is to emphasize that although your failure to respond may result in ths termination of your employment, this is not a disciplinary procedure but designed solely to eliminate absenteeism ad time lost for all reasons. --
The disclaimer in the last sentenc.e.is a sham. The
clear implication of the warning was that there is something
culpable about being off work on compensation. 'That attitude is
contrary to the whole scheme of the Workers',Compensation Act,
which is to reduce the financial burden on employees who miss
k. work because of injuries on duty. The same is true of the
provisions related to Workers' Compensation in the collective
agreement, Article 18, and the Long Term Income Protection Plan
provided for in Article 22.04.
Similarly, on no evidence other than the interim
certificate from Dr. Astaphan, the termination letter said:
We can only presume that you are unable to meet reasonable expectations of availability of work.
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The presumption was to, say the least, premature and
ill-advised. A drastic conclusion had been reached without
taking any of the steps which have often been recommended.
In support of his argument, Mr. Edwards cited the
following precedents: Barber-Ellis of Canada Ltd. (1968) 19 -
L.A.C. 163 (Schiff); National Auto Radiator Mfq. Ltd. (1976) 11
L.A.C. (2d) 48 (Brandt): Toronto yestern Hospital (1977),
unreported, (Hinnegan); -. Falconbridge Nickel Mines Ltd. (1978) 18
L.A.C. (2d) 293 (H.D.Brown); Dominion Stores && (1978) 20
L.A.C. (2d) 298 (H.D. Brown); General Tire Canada Ltd. (1982) 7
L.A.C. (3d) 238 (Kennedy); Canada Post Corporation (1982) 6
.L.A.C. (3d) 385 (Burkett); Molson's Brewery (Ontario) Ltd. (1984) .
13 L.A.C. (3d) 112 (Bfandt).
On the other hand, Mr. Tarasuk mentioned cases in which
termination has been upheld: City of Sudbury (1981) 2 L.A.C. (3d)
16 (P.C. Picher); C~lare Brothers Limited (1982) unreported,
(Verity); Massey-Ferquson (19699) 20 L.A.C. at p. 371 (P.
Weiler). The' last-mentioned quotation is the classic statement
of general principles relating to "innocent absenteeism."
We can only comment that there are no two cases where
the facts (or the evidence) are exactly the same. For example,
it has'been pointed out that the board in the Toronto Western
Hospital case (cited by Mr. Edwards) found the grievor to be not
guilty of certain misconduct alleged. On the other hand in the
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Sudbury decision relied on by Mr. Tarasuk, the grievor's case
was tainted by her addiction to alcohol. Such cases are of
iittle assistance in determining the issue in this case.
We are of the opinion that the grievor himself was
remiss in not having brought matters to a head at an earlier
date. As soon as Dr. Astaphan could offer a "prognosis" --- in
the~form of a professional opinion rather than a certificate ---
c he ought to have been asked for it. At the same time, the 3
Employer could have --- and ought to have --- demanded that such
an opinion be produced at the earliest possible date. There are
obligations on both the Employer and the employee to make such
information available as soon as it can be done, so that a sound
decis'ion can be made on the basis of evidence, not on the basis
of guess-work or a presumption.,
We are obliged to reject the contention that the
c decision taken was 'non-disciplinary". In the absence of any
evidence that there would be no recovery, the Employer proceeded
throughout as though there was some kind of culpability on the
part of the grievor --- for which he would be "terminated" --- in
fact, dismissed. The dismissal was without just cause and must
therefore be set aside, which we are:empowered to do by Article
9.01 of the collective agreement.
Mr.
Suppa is not entitled to reinstatement, however,
until he produces an opinion from this physician giving fuller
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explanations for the grievor's condition .on July 12,
1984, the'extent of his recovery.since that date and
an up-to-date professional opinion as to his ability
to perform his normal duties in future. Such an
opinion would provide the Employer with more information
than appeared in Exhibit 5R.
In vie7 o,f the fact that Mr. Suppa was on
compensation until January, and further in view of the
fact thnt'he was in, partnership with Mr. Livolsi from
February, 1.985, WC do not think this is a case where
an award should be made inrespect of lost wages. Qur
decision is' that he shall be reinstated in his former
job as soon'as he supplies the medical opinion referred .
to 'sbovc , and there shall be no loss of seniority.
If any disnute'arises as to the validity or adequacy of
the medical opinion, we retain jurisdiction to decide
the matter at the request of either party.
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Dated at Rcclcwood this
4th day of October. 1985.
E. B. Jolliffe, Vice Chairman
R. Russell. Member