HomeMy WebLinkAbout1985-0443.Fowler.87-07-060443185
IN THE MATTER OF AN ARBITRATION
Under
THE CROWN EMPLOYEES COLLECTIVE BA&INING ACT
Before
THE GRIEVANCE SETTLEMENT BOARD
Between:
OPSEU (Margaret E. Fowler)
-and-
Grievor
The Crown in Right df Ontaiio
(Ministry of Government Services) Employer
Before: M. R. Gorsky. Vice-Chairman
P. D. Camp Member
S. J. Dunkley Member
For the Grievor: E.-J. Shilton-Lennon
Counsel
Cavalluzzo, Hayes & Lennon
For the Employer: M. Fleisbman
x Law Officer
Ministry of Attorney General
Hearing Dates: September 8 and October 8, 1985
-
On May 16, 1985 the Grievor filed a grievance in the
following terms:
*+I grieve that I have been dismissed from my employment
without just cause, by letter dated May 14, 1985 from
Glenn R. Thompson."
The settlement desired was that the grievor “be reinstated in
employment without loss of wages, benefits, or seniority, and
[that she] be assigned to. another position consistent with
Article 5.6 of the Collective Agreement."
At the time of her discharge the Grievor was classified as
an Operator I Central Switchboard, with the position title of
Console Operator, and was employed by the Ministry.of Government
Services.
The letter (Exhibit 4) referred to in the grievance i%aS
follows:
qAs a result of your high absenteeism record over the
past few years and your continuing inability to maintain
acceptable attendance since your return to your duties
at.the switchboard on April 1, 1985, it has become apparent
that it is unlike-ly that you will be able to attend vork
on a regular basis in the future.
AS you are aware, you were absent due to illness for
15.5 da.ys in 1980, 20 days in 1981, 53.5 days in 1982,
87.25 days in 1983, 103.75 days in 1984 and 15 days .to
date in 1985. These absences are far in excess of the
average within the Ministry~and the Public Service as
a whole. Your absenteeism-is a disruption to the operation
of.the switchboard and places an unfair burden on your
co-workers. ,.
The subject of your absences has been brought to your
attention on numerous occasions but no significant
improvement has been made. The Ministry arranged an
appointment for you to undergo a medical examination
in September 1984. It was recommended by the examining
physician that you be reassigned to a position that does
not reguire contact with the public. Therefore you were
temporarily assigned for a period of four months to the
.Telecommunications Services Branch.
The Personnel Services Branch continued their efforts
to identify a suitable permanent position for you but
were unable to do so. You were consequently reassigned
to your position of console operator on April 1, 1985.
Since that time, you have been absent for a further
12 days.
In view of your very poor attendance record, there appears
,:to be little likelihood that the Ministry can rely on
you to establish and maintain an acceptable level of
attendance in the future and to fulfil1 your responsibili-
ties as an employee.
Therefore, in accordance.with Section 22(3) of the Public
Service Act, you are hereby dismissed from the Public
Service effective immediagely. All monies owing to you
and appropriate documentation will be forwarded to you
at your home address."
Mrs. Sharon Llewellin, testified on behalf of the Employer.
She is employed by the Ministry of Government Services as the
Manager of Inquiry Services in the Inquiry Services Section. The
Inquiry Services contains two units, one relates to the Queen’s
Park Central Service and the other to the Citizen's Inquiry
Bureau. Both units respond to inquiries from the public. The
3
Queen's' Park Central Service furnishes internal services to the
government as well as services to the public. Mrs. Llewellin,
who has been in her present position since December of 1983,
manages both sections and the Supervisors in each section report
to her.
Mrs. Liewellin testified that the Queen's Park Central
Service offers a 24 hour, 7 day a week service and Operators are
assigned to work shifts to cover all periods. Each Operator at a
console receives one call at a time through an automatic call
distributor and each Operator handles between 100 and 140 calls
per hour. --On occasion, an Operator is assigned to handle
conference calls on an inter-city network, however, this is not
usual. During the evening service, the Operator on duty will
service calls directed to Ministries, and in case of an .-
emergency, messages are relayed. Calls are also received where
the Ministry is that of Community and Social Services. Other
forms of emergency calls relate to such matters as serum requests
from physicians.
Mrs. Llewellin described the operation as being located on
the fifth floor of the Whitney Block in a bright room with large
'windows.. Clusters of consoles made. up of four ln a group are
contained within the room. The cord-board is in one cluster, and
the conference bridge is in anothercluster. There is a
refrigerator and coffee-maker in one room and a lounge in another
room.
The Operators receive a fifteen minute break.in the morning
and the afternoon and receive a three-quarter to one hour lunch
break. The Operators are also permitted short breaks in order to
, 1 4
use the washroom facilities. Only one Operator is permitted to
be absent at a time for such purpose. Although the -operation
functions with shifts, an Operator is usally assigned to a
specific shift. Senior employees tend to work the Monday to
Friday day shift, the junior employees having to work evenings
and weekends. 'The Grievor worked the day shift, which was the
preferred shift.
Mrs. Llewellin stated that when she first became Manager in ._,.3c
December of 1983, she reviewed the files of the Switchboard
Operators. After reviewing the files she met with each
Switchboard Operator along with Mrs. Gay Van Arkadie, the
Supervisor of the Queen's Park Central Switchboard, who was, the
immediate Supervisor of the Console Operators. In the course of
such meetings, she also met with the Grievor and discussed the
Grievor's 1984 attendance record, when the Grievor was absent :' :
from work for 103 and 314 days. Mrs. Llewellin noted that most
of the absences were of a short term duration (from two to three
daysj with the longest absence being for.a period of 19 days.
The absences appeared to have been for a variety of reasons
(backaches, headaches, flu). Mrs. Llewellin decided to require
that the Grievor be medically examined and a meeting was held
with the Grievor on January 2.3 and January 24. The meeting was
confirmed by Mrs., .Van Arkadie by letter dated January 25, 1984
(Exhibit 71 which is as follows:
"A medical examinations was arranged by the Director of
Personnel for the beginning of April 1984, however, the .~. . exsmlnatron ~did n&'take place because when the 8 rievor
attended on the physician she refused to sign a arm
5 permitting release of information and the physiciandid
not proceed with the examination."
The Grievor wrote to Mrs. Llewellin and stated that she did
not sign the release of information form because the doctor was
not acceptable to her. Mrs. Fowler cited an award which
indicated that an employee was not required to submit to a
medical examination except where the physician was mutually
acceptable to the employer and to the employee. 0x-i May 16,
Mrs. Llewellin wrote to the Grievor (Exhibit 8):
1984
"On February 9, 1984, you were notified by Xr. E. Steever,
Dfrector, Peraonnel Services Branch that you were required
to eubmif,to a medical examlnation in accordance with
Article 31:.9 of the Collective Agreement. This action was
authorised due to your frequent,absences and inability to
perform your duties. I am advised that you attended the
Employee Health Centre on.April 5, 1984 and refused to sign the release forms which would enable the medical staff to'complete their,examinatlon.
This action by you has precluded the l4inlntry from obtaining relevant medical information iihich would~enable the.
Ministry to assirt~ you to improve your unacceptable
absenteeism record. In the absence of medical information, I wish to advise you that the Uinlrtry expects you to establish and maintain an acceptable attendance record. Pallure to do eo.wlll result in further action by the
JUnirtry not excluding dlrmlsral. for innocent absenteeism.
Your attendance will be monitored during the next mix
months and a substantial improvement la expected and
required.
You ~111 continue to be roqulred to produce
a medical certificate for each absence due to illness ln accordance with Article 51.10 of the Collective
Agreement. I1
On June 5,
1984, Mrs. Van Arkadie sent Exhibit 9 to the
Grievor, which i s as follows:
"further to our recent discussion,
this will confirm our
agreement to remove, effective May 31, 1984, the require-
ment for you to submit medical certificates for periods
of absence of less than 5 days due to illness.
We continue to be very concerned, hoyever, about your
unacceptable attendance records. We will, therefore,
continue to monitor your attendance and unless a signi-
ficant improvement is made, further action will be taken."
6
On June 11, 1984 Mrs. Van Arkadie sent Exhibit 10 to the
Grievor, which is as follows:
"A review of your attendance record indicates you have
been absent since Hay 24, 1984. I did receive a Doctor's
certificate from you for the period May 24 to 30, 1984.
Since then you have been absent a further seven (7) days
without submitting a Doctor's certificate as per Article
51.10 of the Collective Agreement.
Failure to produce a Doctor's certificate after five (5)
.days absence may result In your salary being withheld.
1 will expect to receive your Doctor's certificate no later
than Friday, June 15, 1984."
Subsequently, a medical examination was arranged with Dr. David
M. Moorson. This appointment was arranged after discussion with
the Grievor. Dr. Moorson, in his letter to Mr. Eric Steeves, the
Director of Personnel, Services Branch, Ministry of Government
Services, made two recommendations: -*;t:;~.~',
"She eitper should take a more extended period of time
off work'and have aggressive psychiatric therapy,
although I am not sure if she is inactive and
unemployed all day, that this wills-do a~ lot for her
mental state. Otherwise it might be advisable to
reassign her to a job where she does not have much
contact with the public. There does not seem to be any
other organic disease to account for her absenteeism."
As a result of Dr. Moorson's letter, Mrs. Llewellin took
steps to find another position for the Grievor which did not
involve contact with the public. Difficulty was experienced in
.finding alternative employment for the Grievor as there were said
to be few comparable positions which she might OCCUPY.
.in sent Exhibit On October, 1, 1984, Mrs. Llewell
Grievor which is as follows:
14 to the
7
"YOU were required recently to attend~a medica. examin-
ation in accordance with Article 51.9 of the Collective
Agreement. AS mutually agreed, you were examined
on Tuesday, September 11, 1984 by Dr. David M. Moorsom
at 'JOinen'S College Hospital.
We have now received and reviewed Dr. Moorsom'a report
dated September 12, 1984. This report indicates.
that there does not seem to be any serious organic
disease to account for your absenteeism and includes
the following two suggestions:
1. that you have agressive psychiatric'therapy
2. that you be reassigned to a job that does
not involve much contact width the public
In light of the doctor's recommendations, I would
anticipate that you will explore the. first suggestion
with your psychiatrist as soon as possible and advise
me of the results. In the meantime; management will
attempt‘ to identify a su.Ltable position to which
you can be assigned.
In any event, this ietter should be considered a
final warning that youare required to establish
and maintain satisfactory attendance (i.e., a rate
of absence due to illness not greater than the Ministry's
average).
In this regard, your attendance will be monitored
for the ~next three monthsand if you fail to demonstrate
the required level of attendance, .I will have,no
alternative but to, recommend that you be dismissed
from the Public Service. 11
Oh December 3, 1984, the Grievor was seconded to the
Computer and Tele-Communications Services Division of the
Ministry of Government Services;where she was to obtain
experience as a Word Processing Operator Trainee. Under the
terms of the secondment, the Grievor was paid'from Mrs.
Llewellin's budget. The Grievor remained on the secondment Until
the end of March of 1985. During her absence, her position was
filled by hiring from the unclassified ranks and the cost was
added to the expense of operating the unit. Mrs. Llewellin
testified that she hoped that as a result of the seconhe.nt the
Grievor would acquire additional expertise and be able to secure
a position by means of assignment or as a result of a
competition.
Mrs. LleweIlin wrote to the Grievor on February 5, 198j
(Exhibit 15) as follows:
“Further tc try letter of Oztobar 1, 1984 (copy attached), I think
it is iniprtant to Confirm with you the action that has been
taken to date ard our apectations of the futLlre.
In my letter I asked you to explore with YJu psychiatrist the
rmtion that I)r. bxsan made tit ycu have aggressive
psychiatric therapy and’ requested that you advise ma of the results.
I l-we tmt received any information fran you in this regard and
usAd request that yc-~ pnxride ye psychiatrist’s recnme titian
to me at the earliest cfpxtunity.
As you are aware, we asked the Personnel Services Branch to attenpt
to identify a position which dces rrot involve dealing with the
publicandtowhichyoucculdbe pemanently assigned. Since they
were unable to locate such a .pasition, m were tfsnporarily
assigned .to the Tel- ‘cations services Braxh effective
Cecgnber 3, 1984 for a period of four (4) months mrrlwding
March 28, 1985.
The Personnel Branch is amtinuing their efforts to identify a
went assigmwt for you; Wer, if a suitable position
cannot be located, you will return to your positim as mnsole
vator in the Queen’s Park Central SAtcWd cm March 29, 1985.
In the meantime, I encourage you to suhrit applications to any
egos. suitable posit-. that are advertised durw the
.
I rmst en@nsize that W are continuing to fmnitca yarr atter&nce
ard expezt you to rmintain a rate of absence due to illness mt
greater than the Ministry’s average. Failure to do so will result
in cur rmtim that p be disnissad fran the Public Service. 1’
The Grievor responded to Exhibit 15 by a letter dated
February 20, (Exhibit 16) which is as follows:
“This letter will acknowledge receipt of your letter dated February 5,
1985. I thought it appropriate to respond to your letter because it
gave me cause for some concern in tyo particular areas.
Reference should be made to paragraph two in your letter. I would
like to make it clear that ar no time have I refused to make available
a report/recommendation from my psychiatrist, Dr. Power.
At the time of your October 1, 1984 letter, I had been seeing Dr.
Power on a regular basis for severaLweeks. I did, at one of these
weekly treatments provide Dr. Power with a copy of that letter.
Dr. Power indicated that she did not know what was meant by the
reference in that letter to “aggressive psychiatric therapy.” On her
behalf.1 sought clarification of this matter from you, through Diane
Beckett, my supervisor, at that time. The response 1 received, was
8
:
I communicated this information to Dr. Power. She has taken a
position that it is not her responsibility to contact Dr. Moorsom
regarding a letter you wrote.
As I’m sure you will appreciate, I feel at this time, somewhat
frustrated by this whole matter. I feel I’m being bounced back and
forth between rhe Ministry on the one hand and my psychiatrist on the
other.
I would therefore propose the following resolutionon this issue: - As
your letter of October 1, 1984 is based on a review and
recommendation from Dr. Moorsom’s report of September 12, 1984,i
would ask that you provide me with the report of Dr. Moorsom. 1
assume the report itself will clarify for Dr. Power what is meant by
the term “aggressive psychiatric therapy”.
Once you provide me with this report, I will immediately give it to
.Dr. Power and ask her to prepare the necessary report on my
treatment a.s soon as possible. It might also be helpful if you
addressed a letter to her, directing her in what you are requesting. ”
There is one other matter in your letter of February 5, 1985 that.
concerns me. Reference should be made to the last paragraph, and
your comments regarding monitoring my attendance.
The ‘paragraph in question is repetitive of your letter of October I,
1984. In,Febiuary, 1985, I am of the opinion that it would have been
appropriate to comment on my significantly improved attendance
since I have been in this position. In that regard, you should note that
~~1 have been absent a total of three (3) days since commencing the
“Opportun,ities for Experience” programme. “.
Appropriate consents were obtained, and on March 20, 1985,
letter was sent by Mrs. Llewellin to Dr. Power (Exhibit 18) as
follows:
“MXS. Betty Fowlcr, an employee of the Queen's Park
Central Switchboard is, I ,understand, currently under
your care.
Aa you may be aware Hre.. Fowler has a record of extimsive
absenteeism and as a result, l he was examined at
our request last September by Dr. David Moorrom of
Women’s College Hospital. A copy of his report is
attached for your information. ura. Powler: has agreed
to thir information being forwarded to you as noted in the attached correrpondence.
In December Mrs. Fowler was assigned, temporarily,. to a position that doer not involve dkaling with
the public. Thir arsignment will terminate on Uarch 28, 1985 at which time Mrs. Powler will reeume her duties as 4 console operator at the Queen'8 Park Central Switchboard.
We would appreciate your providing-u8 vith an l riesament
of Mrs. Fowler’a current medical condition and advising us whethor, in your opinion, 8he can be l xp?cted
to maintainsatirfactory attendance in the future."
10
Representations were received by Mrs. Llewellin from Brian
Henderson a staff representative of the Union and Ken Robertson,
President of the Local where the switchboard operation is
conducted and Mr. Piant, the Manager in the area where the
Grievor was seconded, the latter indicating that he was prepared ..i.
to have Mrs. Fowler work in his area for 17 more weeks. Mrs.
Llewellin stated that budget considerations would not enable her
to accede to this request as, if she did so, she would have to
cbntinue paying the Grievor's salary. Mrs. Llewellin's position '
was that she would be agreeable to permitting the Grievor to
remain on secondment if she would not have to absorb the
Grievor's salary costs. This problem was not overcome. Eric L.
Steeves, Director, Ministry of Government Services, wrote a
letter on March 29, 1985 (Exhibit 20) to Mr. Henderson:
‘hank you for your memorandum of March 27ch 1985 which
requested an extension of Betty’s secondment from the Queen’s
Park Switchboard fo Computer and Telecommunications Services
Division.
I,.have now learned that this is not possible and it.has been
decided that Betty would return to her previous position
effective April 1, 1985.
MS. Llevellin is not prepared to have Betty on secondment vhile
continuing to pay her salary. However, she would be supportive
of helping Betry find elcernatiye employmenr. nr. Plant felt
there would not be any additionat benefits by having Bccty’s
recondment extended.
Usry Kurychak of this Branch would be available co provide
Betty any rssiatance she mry require in’rclume preparation or
interview techniques .I’
Mr. Steeves’ letter was in reply to a letter (Exhibit 19) to
him from Mr. Henderson which is as follows:
"As you may be aware,. Betty's secondment was from Queen's
Park Switchboard to C.T.S.D., and took effect December 3,
1984. I. will not’attem$ to summarize.several years of
file material, but simply put there were significant
attendance and related problems while she was at the
Central Switchboard.
11
Since her assignment to C.T.S.D. there appears to be a
dramatic change in past patterns, and this is most
encouraging. Clearly, however, a return to the. environment
which contributed to past difficlulties is to be avoided 'd .r. e r e
pn.=sih.le.
Mr. Ken Robin&on, President of Local 507, has spoken to both
Sharon Llewellin of Information Services and Art Plant of
C.T.S.D. on Betty's behalf. He was advised that C.T.S.D.
had need of a 17-week maternity leave replacement, and that
salary dollars were available there to continue the
secondment. Ms. Llewellin advised that the effect on her
budget was of concern, but~that if C.T.S.D. could assume the
burden she had no objection to a continuance.
All concerned, including Betty, recognize that locating and
securing suitable alternative employment inside or outside
O.P.S. is her responsibility and hers alone. An additional
17 weeks prolrides that much more time fcr her search to
continue and to hopefully bear fruit. With appropriate
assistance from Personnel in resume preparation and interview
techniques her chances will greatly improve. :~.~:
A return to Central Switchboard on Friday, March 29th, is in
no one‘s interest at this point. As we seem to have.no
serious impediments to continuing the secondment for, a li-week
period, I would ask on her behalf that you use your good offices
to make the necessary arrangements.
Success cannot. be guaranteed, but all parties should use
their best efforts to create an environment which encourages
success. '1
In Exhibit 21, being a report on "Opportunities for
Experience Client Survey," Mr. Art Plant, the Receiving Manager
in Finance and Administration/CTSD, reported that although the
Grievor's attendance was bad when she commenced work it improved
greatly toward the end of her stay. The Grievor returned to her
switchboard position at Queen’s Park on April 1, 1985. Almost
immediately, her attendance record declined. From April 1 to May
14 she was absent a total of 12 days. A letter was sent to the
Grievor by Mrs. Llewellin on April 17, 1985 (Exhibit 22) which is
as follows:
'7 have been advised that since your return to the
switchboard on April 1, 1985, you have been absent due
to illness for a total of,5 days up to April 17, 1985.
This situation is totally unsatisfactory. It Continues
to have an adverse affect on operations and places an
unfair burden on other staff members. In addition, as you
are aware, I requested a medical report from your'psychia-
trist Dr. Power on March 20, 1985. To date, I have
received nothing from her.
Together with your absences of 3 days in January and
February, you have now been absent for 8 days this year.
This rate of absenteeism is far in excess of the Ministry
average. As I informed you in my letters of October 1,
1984 and February-.5; 1985, you are required to maintain
a rate of absence due to illness not greater than the
Ministry average and failure to do so will result in our
recommendation that you be dismissed from thee Public
Service. H
After the Grievor's return to work later in April 1985, Mrs.
Llewellin concluded, because of the Grievor's continuing
absences, that she could not continue to function as a
Switchboard Operator. ML-S. Llewellin stated that she
communicated with the Personnel Branch and determined that there
was no position then available to which the Grievor could be
appointed and she recommended to her superior, Mr. D. Ferguson,
that the Grievor's employment with the Public Service be
terminated.
Mrs. Llewellin stated that she reviewed the Grievor's
attendancelrecord to May 14 of 1985, which attendance record is
found in Exhibit 23 and is as follows:
"YEAR ABSENCES
Margaret
Fowler
AVERAGE ABSENCES AVERAGE ABSENCES
Per Employee Per Employee
Central Switchboard Ministry of
(Excluding M. Fowler) Government Services
DAYS DAYS
53.5 25.3
DAYS
coct - Dee 19,VZ)
3.46
1983
87.25 42.1
10.99
13
1984 103.75 22.8 12.12 ,_
Jan 1 - 15 2.1
- May 14/85 3.0
(Jan-Mar lg85],,
On the evidence, I am satisfied that the Grievor's health
was such that she could not attend to her, regular position on a
reasonable basis. She acknowledged, in her evidence, that the
emotional stress brought upon by the work made it impossible for
her to maintain regular attendance.
From Mrs. Llewellin's evidence, it was clear that on many
occasions when the Grievor was absent it was necessary for the
remaining Operators to handle more calls per hour and she
received complaints about lower service levels when calls became
backed up. She identified the situation as being when there was
no answer after six rings.
Exhibit 24 was filed being "An Employee Performance
Appraisal" performed by Diane Beckett, the Grievor's Supervisor
on December 20, 1984. It is apparent that the Grievor was a very
competent operator but that she suffered because of,,,,:her problem
in dealing with the public and that such problem did affect her
work performance. I am satisfied that the appraisal is an
accurate one and that the Grievor's frustrations were being
conveyed to callers.
'There was a good deal of evidence concerning the basis for
the Grievor's various absence.s. After considering all of the
evidence, I am satisfied that the Grievor's emotional difficulty
in coping with a -position where she was put under some pres.sure.
and where she had to deal with the public, would'prevent her from
maintaining reasonable attendance in the future. She admitted as
much.
1 2
Mrs. Llewellin stated, in cross-examination, that she had
not considered laying off the Grievor rather than having her
terminated. She stated that she did not know that it was
possible to lay off the Grievor until such time as another
.position became available, which position she could perform with
a reasonabLe expectation of good attendance. Mr. Henderson also
stated, in cross-examination, that he did not consider permitting
the Grievor to remain on sick leave until another position could
be found for her.
In re-examination, Mrs. Llewellin stated that Messrs.
Robinson and Henderson had indicated that money might be found
from other sources to enable the secondment of the Grievor to
continue. Mrs. Llewellin stated further .that additional
information obtained by her disclosed that this was not the case.
The Grievor testified that her problems could be traced to a
physical problem as outlined in a letter to her of June 3, 1982
(Exhibit‘ 2.5), from her physician Philip F. Stewart, which is as
follows:
"I‘am addressing this to you for use as you may see fit
'in explanation of your medical problem.
You recognise that we have recently discovered the cause
for your chronic recurring abdomen pain and
9
eneral
feeling of illness. There is a sinus tract tube) with
an underlying abscess in your abdomen which chronically
accumulates infection. As the infection increases it
makes you as -a whole feel unwell because of release of
toxic material into your blood stream ,and you-consequently
have an elevatjon in your white blood ~cell count and other
evidence of the infection. Periodly the abcess discharges
through the sinus tract at which time you tend to feel
temporarily somewhat better. I am pleased to state that
a relatively minor operative prccedure will be performed
to remove the abscess and the sinus tract after which
your general health should be vastly improved.
I think it is important for those around you to recognise
that stress situations, notably your impending divorce and
.* any other work or domestically related stresses, will have
a very profound effect on your well being until such time
15
This letter then iS in the form of an explanation that it
Is not malingering or psychological lnabflity to handle stres
that has detracted from your current Performance In any dutie
but rather that it is the chronic infection that has deoleted
your energy and contributed to your feeling unwell, that~ii-
at fault.
The Grievor also.referred to a number of personal problems
involving many deaths in her family and a second broken marriage
as affecting her general functioning.
I accept the evidence of the Grievor concerning her many
problems. Nevertheless, the evidence satisfies me that her
condition was such that she could not return to her switchboard
position and sustain a reasonable~ attendance record. It is clear
that the Grievor was aware of her problems with the switchboard
position and what she really sought was a transfer to another
position which would not require constant contact with the
public.
The Grievorattributed her improved attendance while on ~-
secondment to the fact that she did not have to deal with
inquiries from the public. She stated that the fact that she did
not have to cope with the pressure of incoming telephone calls
made her work less emotionally demanding. The Grievor stated
that while on her switchboard position; many callers were abusive
and she found it very difficult to deal with such situations.
She also stated that she did not have a great deal of patience in
dealing with callers.
The Grievor also stated that she was very surprised when she
saw Exhibit 21, the Opportunities for Experience 'Client Survey,
16
prepared by Mr. Plant, and noted the statements that she had
problems understanding "formatting or reports, etc." She said
that this was the case because she had obtained a certificate
indicating that she could work with mor,e_ complex machines. She
said she thought the Xerox exercises were "too simple." Mr.
Plant was clearly sympathetic to the Grievor and I am satisfied
~from his evidence that he genuinely concluded that the Grievor
was experiencing the difficulties attributed to her in Exhibit
21.
The Grievor went through a number of positions which had
been open in the Civil Service and indicated that she felt that
she was qualified to perform a large number of them. In this
regard I no,te Exhibits 34, 36, 37, 38, 39, 40, 42, 43, 44, 45,
'46, 47, 48, 43, 50, 52.
The Grievor was of the view that her absenteeism record
might have contributed to her being unable to secure another
position. In referring to Exhibits 41 to 52, she stated that she
had not applied for those positions as she became aware of them
only after her dismissal. On the evidence, I .ain uncertain as to
which of the positions the Grievor said she was qualified to'fill
represented positions which she could actually perform. In many
instances she qualified her answers by stating that she might not
have been immediately qualified but that she could become
qualified given the opportunity to perform the job. In many
instances it was not possible to know whether the jobs required
frequent communication with members of the ~public.
1
The Grievor noted that she was receiving on-going
psychotherapy. The therapy does not appear to have affected the
Grievor's ability to carry out a position where she is constantly
faced with the need to deal with the public, especially where
some of the dealings were.unpleasant:
Ken Robinson, who is a photo-technician for the Ministry of
National Resources and who is President Of.cPSETj Local 507, of
which the Grievor is a member, testified that he communicated
with Mr. Plant and that there was a possibility of the Grievor
.,.
obtaining an extention of her secondment to the CSTD, in order to
give her additional time to seek work in other departments.' Mr. .;:- ;. 1
Plant is said to have informed Mr. Robinson that he was willing
to extend the Grievor's &o"ndment for a period of '17 weeks. Mr.
Plant is also supposed to have said that he would arrange for
pa~yment of the Grievor out of his own budget. Onthe basis of
this advice, Mr. Robinson made an appointment to see Mrs.
Llewellin, which meeting, as above referred to, took place on the
26th of March, 1985 at 1:30 p.m. He told Mrs. Llewellin of his
conversation with Mr. Plant. Mrs. Lletiellin is said to have
informed him that her budget would not permit her to extend the
secondment of the Grievor if .the cost of the Grievor's salary,
during the additional period~of secondment, had to be borne out
of' Mrs. Llwellen's budget. Mrs. Llewellin said that she would be
in touch with Mr. Plant to confirm the correctness of the
information- concerning his willingness to extend .the secondment
out of his budget. Mrs..Llewellin is supposed to have told Mr.
1
Robinson, after being informed that the Grievor would be able to
use the extended secondment perrod to seek a position elsewhere
in the~Clvi1 Service, that with the Grievor's background no
department would be willing to "touch, her." Mr. Robinson said
that he responded to this statement and told Mrs. Llewellin that
with Mr. Plant's recommendation it would be unnecessary to obtain ..,c
a further recommendation from the Ministry of Government
Services.
Mr. Robinson stated that, prior to the Grievor's being ._
terminated, he assisted her to complete a number of job
applications which the Grievor appeared to be qualified for and
which'would not require her to have excessive contact with the
general public, as was the case in her switchboard job.
Mr. Robinson said~that after the Grievor had been terminated
he spoke to Mr. Plant and informed him that the Grievor had been .
dismissed from her position. Mr. Plant is suppose to have
expressed his regrets and have stated that the Grievor was a
"good worker." Mr. Plant is also supposed to have stated that he
would hire the Grievor if this were possible.
In cross-examination, Mr. Plant acknowledged that he could
not be certain that the Grievor was qualified for the position
that she qualified for, but he believed that she was “possibly”
qualified.
Mr. Plant, who is one of the Managers at the CSTD, was
subpoenaed as a witness by'the Union. Mr. Plant testif.ied that
the principal duty of the Grievor when he was her Supervisor was
i ;. . . 19
-.
‘4 to learn the operation of the Xerox 860 word processing system.
In doing SO_!~~.. it was hoped that she would be able to obtain
further skills which would assist her to find another job within
the Civil Service. Mr. Plant acknowledged his meeting in March
of 1985 with Mr. Robinson and that he had stated that he had
additional monies at that time which he believed would enable him
to extend the Grievor's secondment and thereby assist her to
acquire additional skills beyond word processing. The position
that he had in mind was one which would require certain reception
duties and certain clerical and personal computer work. An
employee in the CSTD, who was a receptionist, was going on .:
maternity leave and this would enable the Grievor to assume that
position. Mr: Plant stated that the Grievor had functioned as a
receptionist during the period of her secondment on a number of
~occasions and that Mr. Plant was satisfied with-the way in which
she performed that job.
The switchboard in the CSTD was not the same as the ._..
switchboard in Government Services, where the Grievor previously ;s..
worked, in that the persons calling in would know who they wished
to speak to, which was not always so in the case of the central
switchboard. The operation of the switchboard in the CSTD,
according to Mr. Plant, was not asp stressful as the major
switchboard. Mr. Plant stated that the reason he did not retain
the Grievor was that he~felt that she had been given a -
considerable.period of time to achieve new skills and apply for a
position and there were other persons with meritorous cases who
_
20
were being deprived of the same opportunity. He said that he
felt that the Grievor would "have to stand on her own feet." He
further stated that he came to this conclusion on his own,
without consultation with Mrs. Llewellin or anyone eke. He
added that he "probably" would have kept the Grievor on if he had
been asked to do so, but this was not the case.
Mr. Plant testified that he found the Grievor's attitude to
be poor when she first started to work under his direction but
that after three months and many interactions he observed that
she was "above standard for the word processing area of the
office.!' He also added that he regarded the period that the
Grievor was under his direction to be too short to make a
confident prognosis as to her future attendance.
Mr. Plant, in cross-examination, stated that he concluded
that the Grievor did not fully understand the word processing
machinery in his office and, as a result, she was sent out for
further training for a period of two weeks. He stated that the
Grievor did not serve within his department in accordance with
the department's needs. He attrLbuted this to the fact that she
was not fully conversant with the equipment in the department.
He stated that she typed out iome memos and some short letters,
but not on a word processor.
Further, in cross-examination, Mr. Plant was shown Exhibit
21 which was the "Opportunities for Experienced Clients Survey"
which was prepared for Mrs. Llewellin. He was referred to the
words "gave her some clerical duties a couple of occasions and
21
she completed them very professionally." He first stated that
the duties were of "a very low" level but then stated that the
Grievor had performed clerical work at "all levels." I gather
from Mr. Plant's evidence that most of the clerical work
performed by the Grievor was "low level" but he added that he
felt that the Grievor was capable of. doing higher level clerical
work from the way she performed the low level work.
In further cross-examination, Mr. Plant also stated that he
was willing to keep the Grievor because he had.four receptionists
and there would be occasions when the Grievor would be required
to fill in. He felt that she had started to "join the team." He
said that he had confidence that her work performance would
continue to improve.
Having reviewed Mr. Plant's evidence, I am satisfied that
while he had great sympathy for the Grievor's situation he was
very ambivalent about her ability to function in's regular.non-
:training position. I was left with the impression that he was
anxious to assist her cause, but that his assessment of the facts
did not permit him to do so except in equivocal terms. I find
that his conclusions were justified. The secondment was only a
qualified success in that Mr. Plant concluded tha.t the Grievor
had not acquired the skills for which the secondment was
established. Given the facts available, it was difficult to know
what job the Grievor. might perform with reasonable attendance.
Counsel for the Employer characterized the issue before us
as being whether the Employer had a basis for terminating the .I _
22
Grievor on the grounds of excessive innocent absenteeism.
Counsel for the Union raised the additional issue as to whether,
where the Employer would have such a basis for termination, it is
still able to do so while the employee was on sick leave in
accordance with provisions of the collective agreement. A
further issue raised by the Union was whether the Employer,
before.it could terminate an employee for excessive absenteeism,
was first required to find alternative employment within the
Civil Service for the employee who was unable, for physical or
emotional reasons, to perform that employee's usual duties.
Counsel for the Employer cited the case of OPSEU (Patrick
O'Dixon) and the Crown in the Right of Ontario (Ministry Of
Government Services) 4520/83 (Samuels). There it was.stated at
a.~.
p.8:
"Jurisprudence on Absenteeism
It is now established that,an-employer may terminate the emp!oyment 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 emplcyer as a,resuit of the.poor attendance record
(disruption of production, problems for supervlsion, extra overtime, etc.).
The reasons for the absenteeism may be perfectly blame!ess. Termination of
employment for absenteeism is no 1on;er ionsidered a disciplinary matter.
It is simply a case of endi'ng a relarlznc>i: from which ihe employer is nc Ions??
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 tn+'futgre. in General, see
E.E. Palmer, Collective Agreement Arbitration in Canada (2nd edition, 1983),
at pages 420-6; Re United Autozbile Wcrkers and Massey-Ferwzn Ltd. (19691,
20 L.A.C. 370 (Weiler); Re United Automobile Workeis, Local 453, an: Kassey-
Carn.,rr" rnA,,rtrimr , *A 1,077, 7" I 8 r -inn ,<ki"m, '1
23
A review Of all of the evidence demonstrates that'the
Grievor (by,her own admission) would be unable to maintain
regular attendance, up to a reasonable level, if returned to her
job on the Central Switchboard. If there was nothing more to te
said, this would be a case of an employer ending a relationship
where it was no longer receiving the benefit ~of its bargain with
the employee. If the.Union is to succeed, it must establish
si&cess ii?either of the sub-issues raised by it. Dr. Power's
letter (Exhibit 6) of April 1985 indicated that the Grievor
should not be returned to a position involving some stress and
the Grievor's evidence confirmed this.
The evidence satisfied me that the Grievor did not have
-sufficient confidence in her superiors so as to make them more
fully conversant with her problems. She appears to have viewed
them as being in an adversarial position to her, I did not find
evidence to support her position. Not surprisingly, the
Grievor's supervisors were frustrated and this frustration was
perceived by the Grievor as representing antagonism. Mrs. ...l:.i
Llewellin, in the circumstances, cannot be faulted for concluding
that she could not, with confidence, recommend the Grievor f~br
another position. From the evidence, I am not satisfied that the
Grievor's serious health problems would only have affected her in
a job where frequent public contact was called for.
It was the position of the Employer, that It was not under '
an obligation to find alternative employment for an employee in
the Grievor's position and its actions in this regard were
gratuitous and not mandatory. The actions of Mrs. Llewellin, in
consulting the Personnel Department about the possibility. of
finding another position~for the Grievor, were cited, as well as
the lack of success in such endeavors. Counsel for the Employer
also cited the assis_tance-fur&shed the Grievor by her Supervisor
24
in affording her time to make application for alternative
employment, such assistance being tendered to demonstrate the
good faith of the Employer, while not acknowledging that the
Grievor was entitled to such accommodation.
Counsel for the Employer argued that there was no evidence.,
to indicate that the Grievor would be able to function any better
in any other position within the Civil Service. The evidence of
Mr. Plant indicated that in a less stressful environment the
Grievor was capable of maintaining regular attendance. The
evidence of Mr. Plant was, as already noted, equivocal. I sensed
a strong element of sympathy, onhis part, for the Grievor, '.,
however, Mr. Plant noted that, in his opinion, she ,had not
accomplished the purpose associated with her secondment and he
was guarded in his prognosis for her future functioning.
I agree with Counsel for the Employer that the evidence of
the Grievor's inability to maintain reasonable attendance on the
central switchboard job is clear. The only evidence I have as to
the Grievor's ability to maintain attendance on another job was
.~ . that given by Mr. Plant and this was, as I have noted, equivocal.
Counsel for the Employer relied upon the.case- of Suncof4n.c.
Resources Group (1982), 3 L.A.C. Od) at 256 (D.B. Mason), in
support of its argument that the Company was under no obligation.
to provide other duties for an.employee until the employee, who
was incapacitated from performing his/her regular job, could
perform the work that he had been hired to do. In the Suncor
The arbitraton board in Re Canadian Safety Fuels Co. Ltd. and
International Union of' District 50, Allied and Technical Workers,
Local 14132 (19731,.3 L.A.C. (2d~) 77 (Moalli) ,at p.82, indicated:
25
" . . . that unless a,collective agreement so specifies,
an employer is not obligated to keep on its employment
roles, persons not physically fit to do the work which
26
the Company is able to provide, nor is the Employer
compelled to create specific jobs to fit the
capabilities of such persons."
Counsel for the Employer also relied on the statement in Brown
and Beatty, Canadian Labour Arbitration (3d edition) at p.379, as
follows:
I’ In balancing the competing inferests of employer and employee.
a:bit:ators have recognized that an employee must not only be physi-
cally and mentall) capable of performing rhe work associated with
the position in which she seeks re-empioymetit. but must. as well.
establish her right to claim that position. And in the absence of a
specific contractual term so providing. arbitrators have usunlly not
required an employer to employ such: person in some other position
or IO create some special job for her. -
In responding to Mr. Plant's evidence, Counsel for the
Employer stated that there was no evidence to indicate that the
Grievor could be kept on in Mr. Plant's department to perform
word processing duties. There was some evidence that she might
have been kept on to perform secretarial or clearical duties but
there is no indication that Mr. Plant felt strongly enough about
the matter to pursue her retention with Mrs. Llewellin. This is
consistent with his attitude as above described.
From the. poi,nt of view of the Union, Mr. Plant's failure to
pursue the matter would be irrelevant. The question would be
whether there was a job for her and, if so; whether there was an
obligation on the part of the Employer to secure such job for
her, which job she could perform. It was suggested that the
evidence indicated that the.Grievor could perform a number of
jobs and that her experience while onsecondment indicated that
she could do so while maintaining regular employment. For the
reasons stated above, I cannot agree with this conclusion.
Counsel for the 'Union made reference to Article 5.6 of the
collective agreement which is as follows:~
Counsel for the Employer argued that Article 5.6 does not
impose any obligation to transfer an,employee but 'only indicates
what happens when an employee is assigned to a position in a
classification at work having a lower maximum of salary, where the
transfer takes place because ~of reasons of health. It is a ~.~ .,,.. . . i..
provision affording salary protection and does not include the
right to be assigned to another position when the employee is
unable to carry out the position, to which he or she has been
assigned.
There is no gener.a.i right on the part qf an emp1oye.e who is
unable to perform his or her work, absent a provision in the
collective agreement, tp be entitled to be given another job by .-
the Employer which the employee can perform. The Union relies on
Article 5.6, and in particular its provisions which state that
where, "he is unable to accept employment in his former
classification, he shall be assigned to a classification
.
consistent with.his condition." The entire Article must be .read.
When this is done, it is clear that ~the obligation to assign an
employee to a classification consistent with~his/her condition
arises after an employee "for reasons of health . . . is assigned
to a position in the classification having a. lower maxim&n salary
. . .‘I, where "he shall not receive any salary progression 'or
salary decrease for a period of six (6) months after his
assignment . ..(( if there is an obligation, in certain
circumstances, to assign an employee who cannot perform his or
her work for reasons of health to another job under Article 5.6,
28
this only applies where the employee has first been assigned to a
position in a classification having a lower maximum salary. This
was not the case in the matter before us. The Grievor was not
assigned to such a position, her secondment was a training
assignment and it was never intended that she remain in that
position should she be able to perform the word processing
function. The facts of the Greivor's case do not meet the
requirements of Article 5.6..
A further issue relates to the right of the Employer to
dismiss an employee for innocent absenteeism when the employee is
on sick leave under the terms of the collective agreement.
Counsel for the Union submitted that at the time of the
termination the Grievor was medically unable to carry out the
position of Switchboard Operator. The position of the Union was
that the Grievor was, at the date of her termination, on short
term sick leave under the short term sickness plan found in ~_
Article 51 of the collective agreement and that upon those
benefits being used up she was entitled to be placed on long term
income protection under the provision of Article 41 of Part B of
the collective agreement. It was the position of the Union that
the Grievor was entitled to remainon sick leave as long as such
benefits continued. The Union argued that to deprive the Grievor
of .these benefits by upholding the termination would deprive the
Grievor of the bargained for benefits under the collective
agreement. As an alternative, the Union argued that the Grievor
was entitled to be placed on layoff or special leave until such
time as she was fit to returnto work or until a position became
available for which she was qualified.
29
Counsel for the,Union relied on the case of Mrs. E. I.
Fleming and' the Ministry of Attorney-General 143/77 (Adams), and
argued that the Employer was, in the circumstances of this case, I
required to take all reasonable steps to place a employee, who
was unable'to perform his/her regular work because of physical or
emotional disability, 'in apposition that the employee could
perform.
In the Fleminq case the arbitrator did not find that the ~.
employer had an obligation to find a similarly situated position
for the grievor. However, the arbitratordid find the employer
had an obligation "to review its vacancies in respect of less
demanding work that the grievor [was] capable and willing to
perform." Where "such work [was] available the grievo'r [was] to
be offered the position and her attendance record [was] to be re-
evaluated on the expiration of six months of work.
Union.counsel also relied on'the case of Re Maritime
.Telegraph and Telephone Co. Ltd. (1985), 16 L.A.C. (3d) 318. In
that case the arbitrator reviewed the jurisprudence which
recognizes that termination may be a legitimate response to an
employee's shortcomings such 'as inability to maintain regular
attendance. Union counsel referred to the statement of the
arbitrator iti the Maritime Telephone case at p.331:
“It is sticient in this aspect to say thst sn employee’s failure to
&set reswnsble standards or expectins just&s his t-&ins-
tion. However, the concept of just cause also requires, st least in
nondisciplinary (non-culpable) termin&ons thst the employer
consider the potentiaJ for employee rehabilitation. There is, there-
fore, in csses like this a corrollsry requjrement that:
Reference was also made to the following statements contained at
p.332 of the Maritime Telephone case:
I
“Wket then are the elements which the employer must satisfy
before it may legitimately terminate an employee for noneulpabk
inability t, perform his job? For the compny, Mr. NoNI
subbed that an approphte dewQtion of these obligations may
be found ia Rs National Hwbwa Rcuvd and Infl Lunghn-
paat’; &,W~aaman’a Union, .&ml 517 bnreported, rendered
Ockber, IS?) (IS.’ AIlan Hope). The employer’s duties are set out
St p. IO:
Reference was also made to the following StateiWntS from
pps.336 and 337 of the Maritime Telephone case:
“(6) The possibility of a.Itemuf.a work within tk.e bargaining unit
As to the existence of a general requirement to take reasonable
stepa to investigate and possibly offer alternate work to the
grievor, Palmer, Collective Agreement Arbitmliox in Canuda,
2nd ed. (1283). suggests the following guidelines at p. 414:
lfo~oms. in all thee cmca it would eem tit upon., dete&tion thnt,m
employee is um6t to do hk jab u! employer muat bnt conaider if then h &er.
nUiv+ employment the affected employee is apnbk of doing utd whkb M b
~~vndcrtbc~f.lhe_.Fp4&~e 86vwent; only dt.?r Lhk
L hu hded to provide &~tive cmploymen~ k the employer
to kyqFpr tSi% i& Lmfi+.
This principle is extracted from a,large number of cases some of
which poeam qualifying features. For example, many ep9es~ deal.,
with the anployee’s inability to perform a job to which he wris
reaxtly pmmoted: Rr Canon Ltd. and !nt? Assoc. of Bridge,
Shnduml h Omanunfal Workera, Stwpmhs Local 7b.9 wn), 2
L.A.C. (2d) 272 (Brown) [application for jmiiciaf review d&inj.ss
10 L.A.C. (2d) 336nl; Re U.A. W.. Local s and Libby, ,4fcNcil ,e
Libby of Coda Lfd. (1972). 23 L.A.C. 281 (Palmer); Re Finnii
Truce % Equipnnenf Co. Ltd. and Int’l Aaaoc. of Ma&+ls (
Arrospcree Worken, Vancouver Lodge No. 699 11982). 4 LA.1
(2dl 307 (Macdonald). As well, some cases cited in support of tt
employer’s obligation are oases where the employer has mai’
significant effom to place tbe employee somewhere else in tli
system: Rc United Pa&in&owe Workera. I.& 11~ and Cona
Packcn L?d. (1966), 16 L.A.C. 407 (Maodonald); Rc Harold fi
Stark Ltd. and United Assoc. of Journeymen & Appnntices ofrl
Plumbing & Pipe fitting Industry (19721, 1 L.A.C. (2d) 4(
(Egan). These cases are consistent with but do not establish Cz
such efforts are a necessary prerequisite to entitle the employer 6
dismiss.
30
Despite these qualitlcationa, I am of the view that as a gener
requirement the employer must establish that it took tvavxmbf
step to investigate akemate work for the employee and that
concluded that there was no such work which he would &
quali6ed or competent to perform. This principle has been
generally recognised in arbitration awards for t&ee decades: R
John Be&urn & Sam Co. Ltd. and Int’l Assoc. of Machin&
Valley City Lodge 1740 (19X), 2 L.A.C. 474 (Lane); Re fnt
Electtical Workers. Local 2028 and Ajaz Hydra Electric Pm
Corn’‘’ (1963), 13 L.A.C. 396 Kimber); Rc Libby, sups; R
Dmntm Packaging Ltd. and Retail, Wholesale & Deparimm
Store Union, Local 41~ (1976), 12 L.A.C. Ed) 378 (O’Shea); RI:
National Harbours Bawd, supm; Re Pentic& & DictTicc
Retiremat Service and Hospital Employees’ Unim. tOcal 181
(1978), 18 L.A.C. (!Zd) 107 (MacIntyre); Re W&hip ad Canad&
Freightways Ltd. (1983), 8 L.A.C. (3d) 106 (Brown). ”
At p.339 of the Maritime Telephone case it iS Stated:
“I have found that the company has failed to prove the hna’
“alternate work” element necessary to suppoti the termination:
and that it should have placed M on a qualified lay-off. At the
same time, there is no evidence to support the union’s position
that M was capable of taking up alternate work in the bargaining
unit or that he was qualified and had the requisite ability to do so.
As ~~11, there is no evidence that any such position became vacant
or any suitable position was newly created between October 8,
1982, and the date of the hearing.”
Counsel for the Union also relied on the case of e
31
Christenson Bras. Food Ltd. (1984) 12 L.A.C~. /3d) 186, at pp.189-
90, to a.~similar effect. The latter case relied on Libby, McNeil
and Libby of Canada Ltd. (19721, 23 L.A.C. 287 (Palmer), where it
was held, in the face of strong management rights provisions
‘giving the employer the exclusive right to determine the ability
of an employee to perform satisfactorily in the job, that .‘<
discharge was inappropriate and the employee should have been
offered alternative employment consistent.tiith the pro~visions of
the collective agreement, which gave her the opportunity~to apply
for the first opening available for which’she was qualified. To.
similar effect is. the Re Penticton and District Retirement
Service and Hospital (1978), 18 L.A.C. (2d) 107 (Maclntryre)
In referring to’the Suncor case cited by the Employer, Union
Counsel argued that it only ‘stood for the ProPosition that the
under no obligation to "provide" alternative work. Reference was
also made to the statementin Re Canadian Safety Fuse Co. Ltd.
.(1973), 3 L.A.C. (2d) (77) (Moalli), where the arbitrator stated,
at p.82, that the employer was not "obligated to keep on its
employment rolls, persons not physically fit to do the work which
the company was able.to provide, nor is the employer compelled to
create specific jobs to fit capabilities of the such persons."
Counsel for the Union did not argue that there was an obligation
an the part of the Employer to remove other employees from the
positions they held in order to find a job for the Grievor and
argued that neither the Suncor case nor the Canadian Safety Fuse
case had anything to say about the situation where work was
available or where work might be available in the future.
Counsel for the Union argued that the Employer had jobs available
which could have'been filled by the Grievor and,' in any event,
did not demonstrate that ithad made a sufficient canvass of
positions available within the entire Civil.Service which the
Grievor could perform. Counsel for the Union argued that an
employee, such as the Grievor, in the.Ontario Public Service, in
a classified position, had achieved a particul~ar status and &s
entitled to be placed on.a job which s,he could perform anywhere
in the Civil Service and that she was 'not confined to a job of a
Switchboard Operator.. 'She had, upon entry into the Civil
Service, been classified as a Clerk Typist. 'Counsel for the
Union argued that there were twokinds of positions available to
the Grievor: posted jobs and a further minimum period of a
seventeen week secondment position.
On the evidence, I am satisfied that given the information.
it had concerning the state of the Grievor's health, the Employer
33
had behaved :reasonably~ in seeking to place the Grievor in
alternate positions, assuming that such an obligation exists.
Accordingly, if the duty to lay-off described in the Maritime
Telephone case exists, it did not arise in this case.
Counsel for the Union further argued that as long as the
Grievor had not used up her short term sick leave benefits, the .,
Employer was not entitled to dismiss her and after short term
benefits were used up she was entitled to the benefit of~Article
41, being the long term income protection plan and while subject
to that plan would not be subject termination.
In support of its argument that the Employer could not
terminate the Grievor as long as she was entitled to be on some
form of sick leave, Counsel for the Union relied on the case of
Kelsey Hayes Canada Limited Windsor Division and U.A.W., Local
195, an unreported award of J. - W. Samuels dated May 17, 1982. In
that case, at p.4, it was stated: -In short, the aqree-
ment between the parties contemplates long term disability,
and provides for insurance for this contingency. In this
situation, it would not be reasonable to .allow the Company
to preclude an employee from taking advantage of this.in-
suiance by discharging the employee. This-.aqreement.pro-
vides protection for the disabled employee, and it must
therefore, by necessary implication, remove the basic.riqht
of the employer to discharge an'employee who can no longer
perform the work. If this basic right still prevailed, of _ I,.
~; what value is the insurance? If the agreement is meant to
be applied in good faith, then necessarily an employee~must _
be able to take advantage of the disability insurance when
he becomes disabled while an employee of the Company~.:’
34
The. union also relied,on the case of Re DeHavilland Aircraft
9 L.A.C. (3d) 271 (Rayner), where it was stated at p.276-278:
,3%-st, I am not persuaded that the conclusion of Professor Schiff
in the BarhwEliia case is correct. There is &imply little or no
analysis of the problem t,,~ support the conclusion that he reached.
On a more narrow technical ground, it could be suggested that the
decision in Bur&r-&Xlis js distinguishable from the present case as
in that - the benefits were provided by an outside insurer and
the obligations of the employer appeared to be simply to provide
insurance coverage. In rhe present case, the obligations of the
employer are to provide the benefita. This conclusion was reached
by Pmfessor Gorsky in an earlier award between the parties
(grievance of Robert Barker and policy grievance) issued in March
of this Year. As I have already stated this is simply ,a technical
difference and may, in fact, be a difference without substance.
-&ondly, them are substantial reasons to differ from the
conclusion reached in Barber-Elh. Professor Samuels in his
award referred to above alluded to one of them. He pointed out
that ~when the parties collectively bargain the sickness and
accident insurance and group extended disability insurance
benefits, the employees gave up other monetary benefits in order
to have the pm-me. It appear to me, as it did so to Pmfessor
Samuels, that to petit the employer t0 terminate for innocent
absenteeism during the currency of the pmtection afforded by the
programme unilaterally permits the employer to d&my an
interest vested in the employee under the terms of the collective
agreement. This reasoning assumes, of coume, that the employee
qualified for either or both the sickness and accident benefits and
the extended disability benefits. In the present case. the grievor’s
absences were covered by one or the other of the programmes.
A third reason for reaching this conclusion is the nature of the
right of the employer to discharge generally for innocent absen-
teeism. Earlier awards. indicate that this right Rows from a
contract. In other words, the employer, under the terms of an
employment contract created by the collective agreement, is
entitled to have the employee perform one of his basic contmctual
obligations, i.e., to attend at work. If this right of the employer
flows from the contract, it would fpllow that that right can be
varied or fettered by the contract itself. It can hardly be argued
that the contract has been frustrated by the inability of the
employee to attend at work for by negotiating sickness and
disability benefits, the parties obviously contemplated the v&y
situaLion that would form the basis of the application, of the
doctrine of frustntion. If that is the case, the doctrine has no
application.
Nor can it be argued that the benefits only are payable to
persons who are employees of the company. Such an argument is
somewhat circular in that it begs the major issue which is whether
the company can terminate employment during the currency of
the coverage. It seems wrong in principle that the company could
unilarerally end its obligation under the collective agreement with
respect to coverage by ‘terminating the employee. An example,
perhaps more striking than the present case. would illustrate this
conclusion. If one imagines that a long-term employee suffered a
severe illness or accident outside the work-place which totally
disabled that person for life, .the company’s p&ion would permit
the employer ID terminate. If the disability benefits attached to
the employment status, that employee would lose those benefits.
, Hpwever, the benefit provision of the agreement between the
prties contemplates just the opposite result.
It could perhaps be suggested that the company could terminate
the employment of the employee but continue to be obligated to
pay benefits under the benefit sections of the collective agreement.
This argument assumes, of course, that the benefit payments are
not tied to employment status. However, if that be the case. it is
difiicult to see how the company is in a worse position by
permitting the individual to retain his employment status during
the currency of the benefits under the sickness and accident and/or
extended disability plans. In the present case, the sickness and
accident plan pmvides coverage for 52 weeks. The extended
disability plan provides coverage for a period of time equal to the
employee’s years of seniority, less the 52 weeks covered by the
sickness and accident plan. Under such an arrangement, it is
obvious that the employee does not continue to accrue seniority
while receiving extended disability benefits. Other&e there
would be no limit on the period of coverage established by the
extended disability benefit plan. Thus, if the employee was, for
some reason or other, no longer totally disabled, that employee
would be entitled tc return to work to a position permitted by his
seniority.
During the course of argument by union counsel, I asked him if
there was any time limitation with respect to the applicability of
his argument. He replied that there was not. My concern in this
area was, of come, that the employer could be perpetually
responsible for maintaining an employee who no longer could work
for it. In putting this question to union counsel I contemplated the
following situation. An employee was absent from work for an
extended period of time and covered either by the sickness and
accident plan or the extended disability plan. --If the union’s
argument is correct, the employee could not be terminated for
innocent absenteeism during this,time period. The employee then
returns to work and continues to-accrue seniority. The employee
then has a relapse and again goes on one or both of the plans. The
union argument again would be that the employee could not be
terminated while coverage under these plans existed. If one
awumes that such a situation could. repeat itself over and over,
again, the employer would b&required to maintain the employee
on its employment mlls for that entire period. This possibility was
one of the reasons that I hesitated in accepting the union’s
argument. ‘However, I have accepted it and it may be that that is
a possibility that the employer must live with. That possibility
Aows from the contractual obligations that the parties have~agmed
to. Practically speaking, however, there may be’ another answer to
that possibility. In my view, the employer when faced with a
statement by the employee that he or she is no longer sick or
disabled, may require medical evidence to establish that the
employee can return to work. If that evidence is not forthcoming,
the employee would remain on one or the other of the plans.
Eventually, aft+r the passage of sufficient time, the coverage of.
the plan wilJ end. At that point if the employee is no longer able to
return to work, the employer could then invoke the concept or
discharge for innocent abs&eeism. ”
35
36
In the case before us, the Grievor was on short term sick
benefits when she was discharged. We are not in the position to
deal with a claim that she would have subsequently been entitled
to the extended disability benefits referred to by the Union.
The Union also referred to Re QueenswaY General Hospital 17
L.A.C. (3d) 9 (Swan). Reference was made to the statement at
p.15:
"It is obvious, although both parties and arbitrators
require from time.to time to.be reminded, that there is
no general law of"arbitration which transcends the
particular terms of a Collective Agreement."
In the Queensway case, at pp.lE-19, the arbitrator stated: ; .'~
‘Tt is Our view that, 88 8 gene&l principle, an employ-
covered by this mllective agreement haa substantial fig&, in
relation to long-term disability and any~dispute tising oat of the
implementition of the plan, which depends upon the status under
the collective agreement, and which ought not ta be ousted by he
employer until it is clear that whatever benefit the employee my
derive from employment strtua haa been spent. At thnt time, i,,
our view. the employer is left with what Mr. Samuels eplb in the
Univcnity of Windsor case ‘the traditional position” _ the
employer may terminate the employment of M employee who -
unable to perform his or her work, and in respect of whom there is
no reasonable prognosis of regular attendance in the future.
Obviously this position would be reached more easily were it clesr
that a former employee’s rightn under HOODIP could be
protected by an association grievance under cl. 120’7.
In other words, it is not our view that the employer ia
prevented from terminating every employee who is still receiving
benefits under the long-term disability plan. Such a tinding would ‘.
give rise ta the issue which considerably concerned arbitrator
Rayner in the De Havilland Aimufi case, mpm - whether . .
there was any time-limit on an employer’s obligation ta maintain
an employment relationship for an ,empIoyee on long-term
disabw Wethinkthatthe~wiUbedrcumstanceswheretlie
pmghsis is mtXcient.ly dear, and the employee’s rights Lnder the
long-tam diaabiity plan s&ciently est&liehed. to permit the
employer to terminate employment on tbe tmditional ‘grounds.
Butitmuatbeborneinmindthstthepnrties~venegotintedthc
long-term disability plan M a part of their coUective agre&eng
and that for each individual employee the plan constitute@. a pprt
of the bargain made on his or her behalf, for which valuable
mncea3iona must be taken to have been made in the negotiation.
pnxess. Whatever may be the aituntion when an employee has
given cause for dixbarge, termination for innocent abaenteeinq
ought nor to be permitted in dfiumatpaeea where it would deprive
employees of these bargained for - and paid for - righti’
37
mere the Employer would otherwise be able to discharge an
employee for failure to maintain a reasonable attendance, the.
existence of sick leave plan would not prevent termination if the
rights of the employee had vested and the prognosis .sufficiently
clear that the employee would not be able to maintain reasonable
attendance.~ Although the Queensway case does not deal with the
point, Counsel for the Union argued that, if the employee could
perform other available work which could be given to the empioyee
in compliance with the terms of the collective agreement, the
Employer would, in such circumstances, be precluded from
terminating the employee while under the plan.
In this case, there is the fact that the Grievor had not
made application for long term disability payments.
The Employer also raised the following arguments:
(1) Any attempt to place the Grievor in another position, merely
because she was unable to perform the work to which she had been
assigned, would represent a breach of Article 4 of the collective
i.. agreement.
(2) All of the positions which the Grievor claimed to be able to
perform would represent promotions, in that they provided for
increased maximum salary.
(.3) Long term insurance plan benefits ~hinge on the‘eligibility
of the employee and, given the nature of the evidence in this
case, there was a real question as to whether the insurer would
find that she was eligible.
(4) The Employer also argued that this matter was not arbitrable
under the provisions of Article 19(3) of the U-own =EL
tive Bar-a Aq.
38 j I,!
(5) Counsel for the Employer also submitted that if there was an
obligation on the part of the Employer to.reassign the Grievor to
a job which she could perform, it had met the obligationthrough
the secondment process, and the inquiries made by department
personnel to see if,there were any positions available to the
Grievor.
For the reasons given above, I need not consider the
Employer's arguments one to three. I believe that Counsel for
the Employer's objection to arbitrability, based upon the
provisions of s.19(3) of the Crown Employees Collective ~. : y:'...
Bargaining Act, R.S.O. 1980, Chap.108, is related to the claim
that the Employer was obliged to either lay-off the Grievor or
find her a job she could perform being beyond the jurisdiction of
this Board. For the reasons given, it is unnecessary to deal
with this objection.
In all of the circumstances, and for the treasons above.
stated, I find that the Employer correctly concluded that the
Grievor, because of her health problems was, at the time of her
termination, incapable of maintaining a reasonable level of
attendance to which the Employer~was entitled. s I also find, on
the evidence, that .the situation.r,emained unchanged to the
conclusion of the hearing and that the prognosis for the..future
was not good.
An attempt was made, by Counsel for the Union, to have this
.Roard re-convene to consider further evidence relating to this
issue, after the conclusion of the hearing. There is an ongoing ~. ~
debate among arbitrators as to the date for assessing the
prognosis for regular attendance in termination for innocent
absenteeism cases. Some cases evaluate the reasonableness of the
Employer's decisionas of the date it was made. Other cases
extend the period to the time of the hearing. We are being asked
to reconvene the hearing after the evidence has been given and
final argument made. The medical facts which it is intended to
adduee ;~~ reinforces my conclusion that the Grievor's condition, to
the last day of hearing would have interfered with her
maintaining regular attendance in any real job to which she might
be assigned. The evidence is sought to be adduced on the grounds
that it was not obtainable with reasonable dilligence, was
credible and would probably have had an important influence on
the outcome. Having reviewed the medical evidence, it does not
directly address the question of the future ability of the
Grievor to maintain regular attendance. Furthermore, the
evidence of Dr. Brodey, as at October 7, 1985, was consistent
with a conclusion that the Grievor's~maintaining regular
attendance was then most unlikely. There is no satisfactory.
explanation in Dr. Brodey's letter as~to why his opinion as to
the general prognosis changed in February of 19.86. While I have
sympathy for the GrievorIs- pli.ght, I am unable to find the letter
of Dr. Brodey admissible. ~If admissible, I would not find it
sufficiently cogent. In any event, in cases such as this it
would 'be unfair to the Employer to consider extending the date
.:
-,
40
for assessment of the prognosis for regular attendance after the
hearing has been completed.
There remains, the question of the right of the Employer to
terminates the Grievor while she was receiving short term
disability benefits. From the evidence, the Employer did so
terminate the Grievor, and she was thereby deprived of a portion
of those benefits. Nevertheless, I am satisfied that after the
expiration of those benefits, which was prior to the conclusion
of this hearing, the situation would have remained unchanged. The
Grievor is, nevertheless, entitled to be recompensed for her loss
of those benefits. Such right does not, however, affect the
ultimate issue. The Employer's‘ judgement of the Grievor's
ability to maintain regular attendance was correct when it was
made and was correct when the hearing was concluded.' Except as
to the Grievor's right to be recompensed for the loss of short
term disability benefits, the grievance i.k denied. In the
circumstances, I am not in a position to deal with any claim ~
which might have been made because of the possibility of the
Grievor receiving long term disability payment benefits and its
effect on the Employer's rights to terminate the Grievor.
The matter is remitted to the parties, for the purpose of
constructing an appropriate remedy as to the payment to,which the
Grievor is entitled. In the event that it is not possible to
reach agreement, we shall remain seized of the matter to resolve
the issue of payment.
DATED AT London, Ontario
this 6th day of JUIY, 1987.
/
41
M. R. Gorsky
Vice Chairman
P. D. Camp
Member
s. J. Dunkley
Member