HomeMy WebLinkAbout1985-0767.Noah.86-09-12IN THE MATTER OF AN ARBITRATION
Under
THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT
Before :
THE GRIEVANCE SETTLEMENT BOARD
Between: OPSEU brbara Noah)
and
Griever
The Crown in Right of Ontario
(Ministry of Commlnityand Social Services)
Employee
Before: P. M. Draper Vice-Chairman
I. Freedman Member
A. M. McCllaig Mefllkr
For the Crievor: 8. Hanson
Course1
Cavall uzzo, Hayes & Lennon
Barristers EC Sdlicitors
For the ~Erqloyer: C. H. Slater
Solicitor
Legal Services Branch
Ministry of Commmity and Social S&vices
Hearing December 20, 1985
February 13, 1986
April 9, 1986
DECISION
The Griever, Barbara Noah, grieves that she has been unjustly dismissed
from’her employment with the Employer.
The Crievor was employed at- the Southwestern Regional Centre, a
facility for the developmentally handicapped near Blenheim, where she served as a
Rsidential Cotmsellor 2, though not classified as such. She was a publicservant,
but not a civil servant, employed in Group 1 of the unclassified service, performing
part-time duties (twenty-four hours or less par.week) under an individual fixed-term
contract. ‘The first contract covering this employment ran from June 3, 1984 to
March 31, 1985. The second was to rm from April 1, 1985, to March 31, k986. The
Griever’s employment was terminated as of August 5, 1985, on two weeks’ notice.
It is not in dispute t;hat the Griever was an employee within the
meaning of the Crown Employees Collective Bargaining Act and that the collective
agreement between the Union and the Employer applied to her to the-~~extent
provided by Article 3.
Artide 3 contaim such basic terms and conditions of employment as
wages, overtime, reporting pay, holidays, vacation pay, attendance credits and sick
leave. The relevant sections of the artidefcr pesent plrpxes are:
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3. I The only terms of this agreement that apply to employees who
are not civil servanis are these that are set out in this Artide.
3.11 Employment may be terminated by the Employer at any time
with one (I) week’s notice, CT pay in lieu thereof.
3. I4 The following Artides shall also apply to seasonal or part-time
employees: Artide I, 9, 11, 12, 15, 16, 17, 21, 22, 23, 25, 27,
32, 36 and 57.
Both irdividual cantracts between the Griever and the Em’ployer
contained the following provision: ‘This agreement may be terminated by either
party giving reasonable notice of such intention in writing 6ninimlm is one week’s
riotice) i’
The Griever’s duties were perfamed almost exclusively on a unit of the
facility known as Elgin One North. Care of residents there is provided on a
twenty-four hour basis and employees, induding those in the Crievor’s position, are
required to work rotating shifts as follows: 7:30 am. - 3:30 pm. (day shift); 3:15
pm.- 11:45pm.(afternoonshift); 11:30p.m.-7:30a.m.(nightstjft); 11:3Oa.m.-
8:00 pm. Gplit. shift). During~ the period of her employment under the two
contracts the Griever rotated between the day shift, afternoon shift and split shift
with the exception of five assignments to the night shift, the last, in October, 1984. .,...
Shortly after commencing her~empioyment the Griever toid her supervisor, who
was also newly employed, that.she did not “feel well” when she had to work the
night shift. The supervisor had heard from other employees that the Griever
suffered from dabetes and, despite hating explained to. the Crievor in a
memorandum why an exception could not be made, undertook to accommodate her
wish as far as possible; “to work around her” as she put it. Although, the Griever
,imisted througtioa’that she. objected to night duty for reasons -of health and
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although on several occasiom she mentioned getting a “note” from her doctor, no
medical evidence to support that claim was forthcoming.
In late June or early July, 1985, a new s.ystem of resident care that
required more daytimestaff was pit into effect on ElginOne North. The result was
an increased need for part-time employees, indudmg the Grievor, to work the
night shift. The Griever was told that she would now have to do regular ni@t shift
work and that if she dtd not she would have to be “let go.” She was still not
prepared’to work the night shift and stqwed indifference to the prospxt of lcsing
her employment. It was suggested to the Griever that she go on the call-in list
which would make her eligible to substitute icr employees absent fcr reasons such
as illness, but she was not interested. The decision was made to terminate the
Griever’s employment, the reason given to her being “that termination of your
contract is necessary becarse of your itibility to fill a requirement of the position,
ie.perfcrmance of duties duringthe 11:30p.m.- 7:30a.m. (nightlshift!’
At the hearing, Dr. George Lawley testified that the Griever has been
his patient fcr some f,ifteen years and has had diabetes mellitls for at.least that
long. She does not require meolcation and her condition varies with her observance .‘.
of a statiliing diet. He has no record of a request by the Griever in late 1984, or
early 1985, for a letter regardng her dabetes and did not provide one. Although,
there is no scientific proof fcr it, his opnicn is that the Griever is tmder stress
when she has to work nights and is better able to copewith her condition if she
does not have to do so. He has advised the Griever many times to take a daytime
job but he cannot say authoritatively that this is medically inoicated.
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The argument is made on behalf of the Griever that the Employer is in
violation of theHumanRights Code, 1981, in that the Griever has been denied equal
treatment with respect to employment because of the handicap of diabetes. The
issue of the Boards juriso?ction to entertain that allegation is settled by the
decision of the Supreme Court of Canada in Board of Governors of Seneca Coliege
of Applied Artr and Technology v. Bhadauria, 124 D.L.R. (3d) 193. The finding of
the Court was that the Code establishes exclusive procedures for the enforcement
of its substantive protisicxqand so povides uxnpehensively for remedies fw its
breach.
It is the position of the Employer that the employment of the Griever
was properly terminated under the terms of the individual contract and that, in any
event, it was .a termination within the meaning of Article 3.11 of the collective
agreement. In the alternative, it is submitted that if the Griever was dismissed,
the dismissal was fu jGt cause. The provisions of the Public Service Act
regardng “release from employment” were, not raised before the Board and’it is our
understanding that the Employer does not argue that the termination here was a
“release” under that Act. It is argued for the Griever that she was dismissed, that
the dismissal was without jlst cause and that the Board has jurisdiction in the
matter regardlesswhether it was diidplinary or nor+diiciplinaryin nature.
By virtue of Article 3.14 of the collective agreement an employee to
whom Artide 3applies may grieve a dismissal under Artide 27.6.2 which reads in
part, “Any employee other than a probationary employee whx5 is &missed shall be
entitled to file a grievance . . . 10 Such an employee may also invoke Section 18 (2)
of ths Crown Employees Collective Bargaining Act (the Act) which reads iti.part:
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In addition to any other rights of grievance under a collective
agreement,an employee claiming,
. . .
(c) that he has been disciplined or dismissed or sspended from his
employment witrout just came, may process such matter in
accordance with the grievance procedure provided in the
colIective agreement, and failing final determination under such
procedure, the matter may be processed in accordance with the
procedure for final determination applicable under section. 19.
Section 19 (1) of the Act Fovides that the Board “shall decide the matter!’
It is well settled that nothing in the collective agreement can derogate
from rights conferred by t& Act. It mc6t foilow that nothing in an individual
contract between the Employer and an employee can derogate from these rights.
We reject tk notion advanced by the Employer that because the right of grievance
contained in Section 18 (2) is persori’al to the employee it may~be waived or
contracted away and that that is the case here. The Act is a declaration of public
policy. Section 18 (2) is ~no less a part of that public policy than any other provision .,
of the Act and the right it confers cannot be repudiated. The individual contract
that exists here has force only insofar as it does not conflict with any right of the
Griever under the Act or, fcr that matter, under Artide 3 of the ‘collective
agreement. In other words, it’cannot encroach on the collective ,bargaining regime
established by the Act and the collective agreement.
In a number of decisions turning on the interpretation of Article 3.1 I of
the collective agreement the Board has characterized the action taken by the
Employer under that article as either a “termination” or a “dismissal.” It has
asserted juriscLcticn to determine which is involved and where it was satisfied that
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a dismissal had~~taken place has given effect to the right of grievance found in
Secticn 18 (2) (cl of the Act and has exercised its authorit.y to arbitrate under
Section 19. In itr decision of March 21, 1984, on an application for judidal review
of Miller and MacFhail, 530, 531/82, the Divisional Court, in effect, recognized
that the right reserved to the Employer to terminate employment on the terms set
out in Artide 3.11 does not extend to dismissal. That opnicn affirms the
jurisdiction historically asmed by the Board.
At one stage ths Board, in considering the application’of Section 18 (2)
,, (c) of the Act, equated”dism_issal” with”diciplinary dismissal!’ That is no longer
.,,_
the case since the Board’s decision in Gibson 634/84. In that decision the
~distinctim between”disciplinary” and”nor+disdplinary” dismissal was rejected as a
basis for the determimticn of the Board’s jurisdtcticn under Section 18 (2) (cl. In
Re Maritime Telegraph & Telephone Co.~ Ltd., 16 L.A.C. (3d) 318 (Cotter, 1984),
the arbitrator identified innocent absenteeism and inability to do the job as the two
generally accepted bases fa non-disdplinary dismissal. He evidently regarded
dismissals for those reasons as oYismiss& for cause, since he held that the criterion
of just cause was applicaMe to them. In Ambrey, 429/84, the Board expressed the
opinion that “conduct can be non-culpable and legitimately warrant a dismissal in
situaticns such as imocent absenteeism or inability to perfam the job” and went
ofi to state that “A termination can then be viewed as the endng of an employment
relatimship fcr reasons that are other than those resulting f rom the conduct of the
employee:’ We are of the view that “dismissal”, for the pirpcses of the Act and
the collective agreement, m’ay be defined as an act or decision of the Employer,
hating as itr basis some conduct or condition of the employee, which severs the
dmployment relaticnship. That definition encompasses oJlpa.ble conduct that leads
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to disdplinary dismissal and non-culpable conduct that lea& to non-disdpli~nary
dismissal, as well as any physical, mental or like condition that renders the
employee incapable of attenoing at work or of performing the duties of the
.positicn. Such dismissals are dismissals fcr cause and bring into play the standard
of just came. Applying that definition to the fa& before ~6, we find that the
severance of the employment of the Griever constituted a dismissal. We have
concluded, not without’some initial doubt, that the dismissal was nor+diidplinary
in that it was a response to a disabling condition of the Griever. While the case
was not made out that the Grievoi-5 dabetes itself was the direct calse of her
inability to work, at night, the frank testimony of Dr. Lawley satisfies us that
although not medcally certifiable, the stress she experiences from such work
adversely affects her health. There is nothing in his testimony to-suggest that this
is a temporary condition. We note, as welI, that the language of the Griever’s
dismissal rotice suggests acceptance of the rexon given by the Griever for her
objection to night work.
The Cirievor was given no asslaance., and cannot have reasonably
i
expected,that she would be exempted permanently from working the night shift, a
requirement of the position of which sle was fully aware. When the new system of
patient care was introduced she was warned that her objection to night work could
no longer be accommodated and tI-a.t she faced tl-elcss of her job. Despite this
dear notice that the reqtirement would be enforced, the Griever continued to .._ ..,.. _~. .;
maintain her ii-ability to meet it. The Employer was entitled to receive the
services for which it had contracted and we find that the Griever’s mability to
work the night shift amounted to a failure to provide ttem and constituted just
came for her dismissal. In view of the fact that the Crievor was employed under
an indiviudal contract to perform the duties of aspscific positicn,we consider that
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the Employer was not obligated to endeavour to place the Griever in alternative
employment. We note, in that regard, that the Employer’s suggestion that the
Grieva place her name on the call-in list was not taken up.
The grievance is &missed.
DATED at Comecon,Ontario this 12th day oJ,>eptember, 1986.
P. M. Draper, Vice-Chairman
I. Freedman, <Member
p&&gq
A.M.McCuaig,Member