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HomeMy WebLinkAbout1985-0842.Emond.86-06-25IN THE MATTER OF AN ARBITRATION - Under - THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD Between OPSEU (Judy Emend) - and - The Crown in Right of Ontario (Ministry of Government Services) Before: For the Griever: N. Luczay Grievance Settlement Officer Ontario Public Service Employees Union For the Employer: Hearings: R.L. Verity, Q.C. R. Russell A.M. McGuaig Vice-Chairman Member Member D.W. Brown, Q.C. Counsel Crown Law Office Civil Minisry of Attorney General 18 King Street East 17th Floor February 24, 1986 April 14, 1986 Grievor Employer -2 - DECISION On August 6, 1985, Mrs. 3udy Emond was dismissed from the Public Service for reasons of excessive innocent absenteeism. A Grievance was filed on August 21, alleging dismissal without just cause and requesting reinstatement with full retroactive benefits. The Griever has been a switchboard operator at the Government's central switchboard since March of 1974. There is no dispute that she was a:-competent employee. Unfortunately, she has accumulated an unenviable-record of absenteeism which in .fact dates back to her initial employment. The Employer based its case on Mrs. Emend's absenteeism record between the years 1982 to and including 1985 to justify discharge. The record is as follows: 1982 -- 44 days absent 1983 -- 94.5 days absent 1984 -- 38.5 days absent 1985 -- 38.25 days absent (From January 1 to August 6) The Griever was absent“for a variety of medical reasons.- These reasons included sore throat, colds, viral infections, stomach flu, abdominal pains, diarrhea, bladder infection, cornea1 abrasion, and eye infection. During the years 1982 and 1983, many of the absences were caused by anxiety and emotional stress from an unhappy -3 - marriage relationship. For the most part, the Griever’s absences were intermittent absences of one or two day duratidns. The Emp‘loyer called three witnesses. Mrs. Sharron Llewellin, Manager of the Ministry's Enquiry Services'since December 1983; David Ferguson, Director of Information Services; and Mrs. 3udy Blundell, the Griever’s Supervisor since February of 1985. Mrs. Llewellin was the Employer's principal witness. She outlined the Griever’s record of absenteeism during the years 1982 to 1985. The record was%rought to the Griever's attention by Mrs. Llewellin on the first occasion in 3anuary of 1984. Following that meeting the Grievor was’ sent a letter outlining the Employer's concerns and advising of the necessity of a mandatory medical examination pursuant to Article 51.9 of the Collective Agreement. Similarly, counselling sessions were held with the Griever in April, Sune and November of 1984. On each occasion the Griever acknowledged the absentee problem and assured management that her marital problems were behind her. Following each meeting, the Employer documented its concerns in writing, and advised the Griever that failure to correct the attendance problem would result in further action not excluding dismissal for innocent absenteeism. Dr. David M. Moorsom, a specialist in internal medicine a't Toronto's Women's College Hospital, examined the Griever under the mandatory medical referral on December 7, 1984. Dr. Moorsom -4 - submitted a medical report to the Employer dated December 11, 1984 which stated, in part: . . . she really has had no serious illnesses in the past or no hospita1ization.s or any operations. She has been through a lot of emotional stress between 1982-83, going th.rough divorce proceedings after being married for 10 years. She had a lot of psychological support and psychotherapy during that time, but admits to finding it very difficult to continue working at that time. She also seemed to be susceptable to a number of minor illnesses but nothing particularly serious.. .'I Dr. Moorsom;reported no abnormal signs and no evidence of a chronic illness. He diagnosed the Grievor as "physically well now” and concluded his report with the following statement: "From my discussions with her I feel confident that her work record will improve...” In a letter to the Griever dated 3anuary 16, 1985, Mrs. Llewellin summarized Dr. Moorsom's findings and reiterated the need to "establish and maintain satisfactory attendance", with an absenteeism rate no greater than the Ministry average. The letter also stated that failure to maintain satisfactory attendance would result in further action "not excluding dismissal". Mrs. Llewellin testified that on March 28, 1985, she wrote to the Griever again noting that she had been absent due to illness for a total of 10 days at that point in 1985. The letter stated that -5 - this was "a final warning". Subsequently on 3une 15, 1985, the Griever was injured in a motor vehicle accident and in August, the Employer made the decision to terminate the Griever's employment. Both Mr. Ferguson and Mrs. Blundell testified as to the extent of their involvement in counselling the Griever regarding her problematic attendance. The Grievor acknowledged that she had been counselled on numerous occasions regarding alleged unsatisfactory attendance, She testified that the requirement to produce a medical certificate following each absence commenced in 1983. She stated that she had‘ severe emotional difficulties associated with her marriage which required psychological assistance in 1983. Mrs. Emond requested and was granted assignment leave in December, 1983, and apparently enjoyed several short assignments away from the workplace. Mrs. Emond did not question the accuracy of any of the absenteeism statistics produced by the Employer. Following the motor vehicle accident of June 15, 1985, the Griev,or did not work again with the exception of one day, namely 3uly 22. In cross-examination, she acknowledged that she had experienced certain reoccuring health problems such as stomach problems and colds. -6 - Mrs. Emond testi possibility of submitting fied that in 1983 she did discuss the a voluntary resignation with her Supervisor at the time, Mrs. Van Arkadie. Mrs. Van Arkadie allegedly discouraged the Crievor from taking that course of action. The Union submitted a medical report prepared by a Dr. Ian Harrington dated April 8, 1986 which detailed the injuries sustained and the progress made by the Grievor following the motor vehicle accident. The Employer contended that dismissal was justified because of excessive absenteeism combined with a poor prognosis for regular attendance in the future based on the past absenteeism record. Mr. Brown argued that the. favourable prognosis contained in the mandatory medical of December 1984 had failed to materialize and that dismissal was appropriate in all the circumstances. The Union adopted the position that the Grievance should be allowed for several reasons. Mr. Luczay argued that the Employer had improperly changed its strategy in 1984 with the appointment of Mrs. Llewellin and that the Grievor had been lulled into a false sense of security by the Employer's failure to take action in preceding years. He contended that the Employer could not support dismissal in August 1985 in the absence of a medical prognosis. Alternatively, Mr. Luczay argued that the medical prognosis of the Grievor?s physician Dr. Harrington in April of 1986, was "excellent" and I r, -7 - accordingly justified reinstatement. In a determination of this issue, there is no doubt that the Grievor is a competent switchboard operator when she is available to perform the job. Mrs. Emond was forthright and candid in her testimony. In fact, she acknowledged that absenteeism due to illness had been a problem for many years. In assessing the evidence, the Board is satisfied that the Griever has accumulated a record of excessive absenteeism during the 1. years 1982 to and including 1985. The absences are for a variety of unrelated minor medical reasons. For the most part, the absences were intermittent in the sense of one or two days at a time. Clearly, the Grievor suffered emotional stress from an unhappy marital arrangement in 1982 and 1983. These difficulties resulted in the Grievor being absent for a period in excess of two months in the fall of 1983. However, the evidence is much less clear that marital stress was a major factor in the Griever’s 38.5 days of absence in 1984. In that year, the Griever was absent for a single day on 15 occasions, l/2 day on one occasion, two days on four occasions, three days on two occasions, four days on one occasion and five days on yet another occasion. As indicated previously, Dr. Moorsom's mandatory medical report of December, 1984 presented a favourable prognosis for future attendance. An examination of the 1985 absenteeism record indicates that the favourable prognosis did not materialize. I 0 I -8 - Although not relied upon by the Employer, the record of absences predates 1982. It is readily apparent that the Griever's attendance record was problematic from the outset of her employment. For example, as early as 1976, the Griever’s attendance had deteriorated to the point that she had been absent during a six month period on 16 occasions. In 1980, the Griever incurred 20 days of absence and in 1981, 19 days. The record establishes that the Griever’s absenteeism was istry averages ano comparable excessive having regard to comparable Min switchboard operator averagks. In our opinion, the Griever’s lengthy absence from work following the motor vehicle accident of 3une 15, 1985 provided an appropriate occasion ‘to consider the past record of absenteeism. In that sense it was an incident which justified a review of past absences in the sense described by Arbitrator Weatherill in Victoria Hospital, London District and Building Service Workers Union, Local 220 (19791, 24 L.A.C. (2d) 172. In August 1985 the Employer had no fresh medical prognosis at its disposal. However, it did have the favourable medical prognosis of Dr. Moorsom in December 1984, and in addition, the Griever’s record of attendance for 1985. Disregarding entirely the Griever's absence as a result of the motor vehicle accident, the record establishes that the Griever had been absent a total of 12.5 days as of Dune 15, 1985. That record totally disproved Dr. Moorsom's optomistic prognosis of December 1984. Essentially, the same pattern that occurred in 1984 repeated itself in 1985, with the exception of the month of April, 1985 when absenteeism was not a problem. As Arbitrator Weatherill stated in the Re Victoria Hospital case cited above at p. 174: "While the standard of proof is that of the balance of probabilities, since the employee's lifelihood 1-5 at stake, it must surely be that clear and cogent evidence must be adduced. In some' cases, the-absenteeism record itself may, depending on 'its nature, create an assumption of which the employer may rely, unless the contrary see, for example, Re Niagara (St. Catharines) Ltd. and ,12 (19781, 18 L.A.C. (2d) 385 is established:. Structural Steel U.S.W., Local 70 (O’Shea) .‘I I * ~ ‘.’ : \ -9 - . Mrs. Van ArKadie's letter to the Grievor dated April 19, 1984 established the fact that the Grievor had been absent due to illness a total of 14.25 days in the first three months of 1984. Mrs. Llewellin's letter dated March 28, 1985 stated that she was absent due to illness at that point in time for IO days. Simply stated, the Griever’s record of absenteeism in 1985, disregarding entirely the absenteeism attributable to the motor vehicle accident, establishes the fact that she appears incapable of reversing the pattern of recurring intermittent absences. ., ” - 10 - Accordingly, based on the reoccurring absenteeism problem in 1985, the causes of those absences, the frequency and duration of the absences, the Employer’s repeated attempts to change the pattern, the Board finds that the Employer quite properly concluded in August of 1985, that there was little likelihood of regular attendance in the future. Arbitrators are divided on the appropriate time for determining future prognosis. Vice-Chairman Brandt addressed that problem in OPSEU (Kathy Runco) and Ministry of the Environment, 1. 156184 at pp. 6 and 7: “There is no need to cite any authority for the proposition that an Employer may discharge an employee for innocent absenteeism where that absenteeism has reached such a level as to be regarded as ‘excessive’ and where there is no prognosis that an employee will be able to attend regularly to his or her duties in the future. There is, however, some difference of opinion among arbitrators as to the appropriate time at which a Board of Arbitration should assess the question of future prognosis. One line of cases takes the position that this issue should be determined as of the date of termination of employment, Another line of cases argues that the appropriate date for determining future oroanosis is the date on which the Board of Arbitration hears the matter. In Re Canada Post Corporation and Canadian Union of Postal Workers, 6 L.A.C. (3d) 385 (Burkett) the Arbitrator reviews these two lines of cases and opts in favour of that line which assesses future prognosis at the time of the hearing into the matter. The following extract from that case sets out the basis for this conclusion: The employee whom the employer seeks to terminate in a case such as this has been absent from work for reasons beyond his - 11 - control. He has suffered some physical or mental infirmity that has prevented him from being regular in attendance. The requirement to look to the future exists because it is recogniied that ‘it would not be fair or just to permit the termination of an employee for reasons which he is powerless to control . . . if the prognosis is that the disorder precipitating the termination has been corrected or is likely to disappear within the foreseeable future’. If it can be shown at the time of the hearing that the employee is likely to be regular in attendance, I do not understand how it can be that ‘fairness and finality’ dictate that this fact be ignored and effect be given to a prior assessment which has been proven factually incorrect. If it is proven at an arbitration hearing that an employee who has been terminated for blame&ess absenteeism is likely to be regular in attendance in the future, it seems to me bhat the proper balancing of interests requires that the employee be returned to his employment. The prejudice of an employee who is capable of regular attendance in the future but is nevertheless terminated, is substantial. On the other hand, it is difficult to understand how it is that an employer is prejudiced by maintaining in employment an employee, of possible long standing, who is capable of regular attendance in the future. I make this observation in the knowledge that in these cases remedial relief can be shaped to take account of when it was that the employee could have resumed regular attendance and when it was that the steps were taken to make the employer aware. It is my view, therefore, that if it is proven at the hearing that the employee, who has been terminated for excessive innocent absenteeism, would likely be regular in attendance in .the future if reinstated, .it must be found that the employer did not have just cause to terminate.” - - 12 - The present Vice-Chairman adopts the rationale of Arbitrator Burkett as did Vice-Chairman Brandt in the Runco Decision. Accordingly, it is important to review the prognosis prepared in April 1986 by Dr. Ian 3. Harrington. Dr. Harrington submitted a detailed report which related exclusively to the Griever’s progress following the motor vehicle accident of 3une 15, 1985. The Doctor reported that the Griever was a passenger struck fro-m behind and was not wearing a seat belt at the time of the impact. As a Tesult, she experienced neck and low back injuries which was subsequently diagnosed as mild to moderately severe strain of her cervical and lumbo-sacral spine. The medical report contains the following statement: “Her past history was non-contributory. She has enjoyed excellent health to date.” By way of summary, the medical report concludes as follows: “Ms. Emond sustained a mild strain of her lumbo-sacral spine and a moderately severe strain, of her cervical spine as a result of a motor vehicle accident that occured on 15th June, 1985. Although her progress has been slow, she has made a good recovery and I do not anticipate any significant residual disability as a result of these injuries. Her prognosis in my view is excellent .‘I Of particular significance is the penultimate paragraph of Dr. Harrington's report which reads: "It is my understanding that Ms. Emond normally works as a console switchboard operator. This is basically a sitting job. She is uncertain whether she would be able to manage her previous type of work as she states that it will likely aggravate her neck..." The Board is satisfied that the Grievor has convinced herself that it is questionable whether she will be able to cope with her switchboard duties. with the job requirement to be seated during working hours. From the Griever's own testimony it is clear that she is not totally satisfied with her present job and eagerly accepted other assignments away from her regular switchboard responsibilities. While Dr. Harrington's medical report provides an excellent prognosis with regard to the motor vehicle accident, the report makes no reference to the prognosis for regular attendance at work for the variety of other ailments that have resulted in time lo.st in previous years. The Board was somewhat surprised to read Dr. Harrington's statement that the Griever has enjoyed excellent health in the past. On the evidence presented, the c~ontrary has been established; In our opinion, the pattern of excessive sporatic absences is so ingrained in this employee that we simply cannot conclude that regular attendance in the future in this job will ever become a reality. The Board is not satisfied that a conditional reinstatement upon terms ! -, ;:,. lt - 14 - would have the effect of changing the pattern of excessive absenteeism. “I dissent” (See attached) R. Russell - Member DISSENT Re: OPSEU (Judy Emend) and Ministry of Government Services -0842/85 I have read the decision to dismiss the grievance and I wish to dissent from this position for the following reasons. 1 The grievor was admittedly (by the management) a good worker when she was present. 2 This is not a case of solely innocent absenteeism. With the excessively large number of single days away from work and with many days coming on Nondays and Fridays,the management could have and in my opinion should have recognised that illness was not the sole cause of the qrievors absenteeism. i -. 3 In the instant case we have a mixture of new and old management. Neither the old of new management showed they were really con- cerned by suspending the grievor and thereby putting her on warning as to the consequences of continuing these short 1 day absences. 4 In the G.W.Adams decision 143/77 where it was wholly innocent absenteeism where the grievor was off work 43 days in 7 months, the Board ruled. *I The employer is directed to review its vacan- cies in respect of less demanding work that the grievor is capable and willing to perfonn.If such work is available the grievor is to be offered the position and her attendance record is to be reeval- uated on the expiration of 6 months work.Ifit has not improved 'app reciably she may be terminated:' In the instant case the grievor asked to be transfered and was for a short time where her work and attendance was good. 5. In the Ottawa General Hospital h CUPE Local 1657 where the employee was discharged for innocent absenteeism and upheld by the Board,it is to be noted that the hospital asked the grievor"if she would like case the grievor did not to o'~ another section :'.In this ke wan o change jobs,but she was given the opportunity unlike grievor Emond. 5 In the James J.Devlin case 331/80 where alcoholism was the problem,the grievor was given four (4) suspensions from employment. Never the less by unanimous decision of the Board grievor Devlin was conditionally re-instated in his job. It appears to me that the new management had an obligation to assist the grievor.This.they did not do. They did not offer another type job on a regulanbasis. Regarding her excessive one day absences from work,they did not suspend her to reflect the seriousness with which they considered these absences .from work. -SW6 r I consider this an appropriate case for re-instating the grievor with perhaps stringent terms as was done in other cases. I also believe it should be drawn to managements attention,that where they have an admittedly good worker,but one who has other problems res- ulting in excessive absenteeism they should be more helpful including where possible granting a transfer to a different job. In this way they may retain a "good worker" and also help to correct an absen- : teeism problem from resulting in dismissal as in this case. It is also my view that in any case of absenteeism where it is not wholly 108% innocent absenteeism,as in this case, the employee is entitled to a serious warning such as one or more days suspension. For these reasons I would have re-instated grievor Emond.