HomeMy WebLinkAbout1985-0948.Lawrence.88-02-23-..
IN THE MATTER OF AN ARBITRATION -
Under
THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT
THE GRIEVANCE SETTLEMENT BOARD
Between --_ OPSEU (Maisie A. Lawrence)
And
The Crown in Right of Ontario
(Ministry of Consumer & Commercial Relations)
Employer
Before M.R. Gorsky Vice-Chairman
I.J. Thomson Member
W.A. Lobraico Member .
For the Griever K.W. Whitakex
Counsel
C. Dassios
COUllSel
Gowling & Henderon
Barristers & Solicitors
For the Employer K. Waisglass
Staf.f Relations Officer
Ministry of Consumer & Commercial Relations
Date August 6, 1986
1
Page 1:
The Griever, Maisie A. Lawrence, was at all material times classified as
a Data Technician 2 with the posLtion titte of C.R.T. Operator and was employed
by the Ministry of Consumer & Commercial Relations.
The Grievance is as follows:
“I grieve that I have been disciplined without just cause and threatened
with dismissal.”
The complaint relating to “and threatened with dismissal”, was not pursued.
The settlement desired is as follows:
“That the suspension be removed from my records and I be paid for pay lost
.Aug. 9, 1985 (.)(F)urther that I retain all benefits and seniority”.
The basis for the suspension is as set out in exhibit #5. which is as follows:
August 8, 1985
Ms. Maisie Lawrence
18B Bernick Drive
Barrie, Ontario
L4M 555
Dear Ms. Lawrence:
It has been brought to my attention that on Monday, July 29, 1985 you did
not comply with your Absenteeism Directive when you failed to report to
any of the three (3) pre-designated personnel, prior to 9:OO a.m., “that
you were unable to report for work that day.”
This must he treated as an act of insubordination as clearly documented
in the form of a caution to you in the letter of warning issued to you by
Mrs. D. Mohr, dated April 13, 1984, for “Non-Compliance to Absenteeism
Directive.”
- *.
Page 2:
In v‘iew of the above I advise you under the,authority delegated
to me and in accordance to Section 22.2 of the Public Services
Act that you are hereby suspended one (1) day without pay as a
form of disciplinary action. The date of the suspension is
August 9, 1985. You are not to report to work on that day.
I must caution you at this time that in the future the same action
on your part will again be treated as an act of insubordination
and the gravity of the situation assessed at that time.
Hopefully you will reflec;*on the seriousness of this disciplinary
action and in future adhere to all directives of this unit.
6. F.\lr'ebber
Provincial Prooettv Reoistrar
Properiy Right;~Di;isj& '
The alleged failure to comply “with your Absenteeism Directive”, referred
to in exhibit #5, is based eon a directive contained in exhibit P8, which is
a -letter dated October 24th, 1983, to the Griever from T. N. Bundle,
Director Personnel Roperty Security, the material poctions of which are”
LII follmm:
Ozober 24, 1983
Mrs. Maise L~awrence
188 Bernick Drive
Barrie, Ontario
L4M 555
Dear Mrs. Lawrence:
In reviewing your attendance, it has been noted thht you have been
away on numerous individual instances totalling amounts in excess
of the norm for your work unit. On a recent occasion when this
occurred you were required to bring in a medical certificate for
each instance of absenteeism and a marked improvement in your
attendance resulted. As a consequence and upon the recommendation
of vour supervisors. I withdraw the requirement in my memorandum to
you dated Octobrr 22, 1982.
Page 3:
Since January 4, 1983, op to and including October 21, 1983, your
attendance has deteriorated. You have been absent a total of
forty and one-half (40-l/2) days of which tventy-three and one-
quarter (23-l/4) were single days. Your supervisor is concerned
about usage of the Short Term Sickness Plan and your overall well-
being. Such absences put considerable stress on the efficient
function of the work unit.
In viev of the above I advise you under the authority delegated to
me by the Deputy Minister and in accordance with Article 3.7;3 of
the Collective Agreement between the Management Board of Cabinet
and the Ontario Public S@ce Employees Union, that you are here-
by required to submit a medial certificate covering any period due
to illness. The certificates must be signed by a legally qualified
medical practitioner and must be presented to your supervisor(s)
immediately upon return to work. They must confirm that in the
deriod you were absent you were unable to perform your official
duties as well as specify the period in question. The requirement
for a medical certificate will remain in effect until further notice.
During this time your attendance will be monitored and meetings will
be held between you and your supervisor(s) from time-to-time.
Effective immediately, if and when you are unable to report to work
for an) reason, you must~contact one of the following persons prior
to 9:00 a.m. the same day:
Mrs. V. Robinson 963-0455
Mrs. D. Mohr 963-0561
Mr. P.L. Preager 963-0451
This directive will remain in effect until further notice.
Iwantto stress the seriousness of the situation. Your attendance is
not satisfactory and it must be improved.
I hope your condition is such that you will be able to improve your
attendance very quickly.
I” summary, when you are sick see your doctor. Have him/her sign
a medical certificate. Bring the certificate with you when you return
to work, making certain the certificate covers the entire period of
your absence that you were unable to perform your duties. If you
return to work without a certificate, you will be asked to leave work
to obtain the certificate. Your pay will be docked for the time lost
in order for you to obtain the certificate.
-
~--.I am recommending to the Director of Personnel Services Branch
thit she consider having you see the Employee Health Services
Branch (Ministry of Government Services) for an Employee Health
Evaluation and to review your case.
T. ?S. Rundle a-
Director
Texsonal Property Security
It was not argued on behalf of the Crievor that she was unaware of the
reporting directive or that it was unreasonable. The Crievor testified
that she took medication around lo:30 a.m. on July 29, 1985 to treat a
stress related depression which she was experiencing. On that day she
was scheduled to work the 2:45 p.m. to LO:30 p.m. (evening) shift. Her
evidence~was that after taking the medicine,she would decide, later on
in the day, whether she felt well enough to go to work. It was her
evidence that when she worked on the evening shift she was allowed to
call in prior to the commencement of that'shift (usually before'2:OO p.m.)
and this was acknowledged on bahalf of the Emplover. She further t "
testified that she was permitted to call in, on occassion. up to the
c-nc-t of the shift, and that this practice was accepted.
It was her evidence that she lay down and did not awaken until approxi-
mately 4115 p.m. uhan she called the Ministry advising that she did not
feel well enough to come to uork. She stated that she communicated this
advice to the Lead Operator, Camela Bavosa.
Hs. Bavosa advised the Crievor that she was required,.pursuant to
exhibit #8, to speak to one of three individuals1
1. Dot Mohr. who was the Crievor's Supervisor
2. Vivian Robinson. who was the Assistant Supervisor of the Griever
3. Wayne A. Cart=. the Operations' Manager.
.5. ‘Page 5:
~-pus.. Bavosa stated that she told the Crievor that Ms. Nohr and fls. Robinson
had left the office for the day and were not available and that Wayne Carr
was not immediately available for the purpo&of speaking to her.
The Crievor left a message with Ms. Bavosa for delivery to pot Hohr.
The message, as recorded by Us. Bavosa, was that the Griever was unable
to come to work and would call Ms. Bohr on July 3&h, in the morning, in
order to explain further. p e r ever was scheduled to work the same shift C i
on July 30th. 1985.
On the following day (July 30th, 1985) the Griever called Ms. Mohr. I
am satisfied that she did not explain to Ms. Hohr that she had fallen
asleep and, therefore, was unable to report to one of the three designated
employees within any of the times permitted (including the Griever’s
version of what was acceptable)‘.
The Griever was off work to Aug. 8th for medical reasons and did not
return to work until that date uhen she received exhibit 85.
On Aug. 8th. 1985, after receiving exhibit 85, the Griever spoke to Wayne 1’ Carr and furnished him with her reasons for failing to be at work on
July 29th. as well as the reasons for reporting as she did. I am satisfied
that she told the entire story as’above recited. Mr. Carr did not testify.
The position of the Union was that the Crievor’s conduct did not amount to
insubordination, that her failure to report in accordance with the directive
was inadvertent and that she had a reasonable personal excuse for failing
to comply with the letter containing the directive (exhibit l/8).
In the alternative, the Union’s position was that if there was just cause
for discipline based on the actions of the Crievor, then based on an
examination of the Griever’s entire record and of the circumstances involved
in this case, there should be reduction of the penalty.
The ‘Dmployerwaived any argument available to it based on timeliness.
In addition to its position, relying on the above mentioned directive, the
Page 6:
“~Employer also relied on certain rules of general application requiring an
employee to call in by 8:00 a.m. of the morning shift or two hours before
other shifts when the employee was unable to come to work.
The Employer also referred to the requirement of furnishing a medical
certificate in the case of certain employees suspected of sick leave
abuse or chronic absenteeism. In those cases, it was routine to require
employees to furnish medioal certificates for all absences whatever
their duration.
It was the position of the,Employer that the excuse of the Griever for
not telephoning in time was not a reasonable one and that if it was a
reasonable excuse, the Employer was unaware of it prior to its having
imposed discipline. It was the further position of the Employer that
if ‘the excuse was a reasonable one and would excuse the failure to re-
port. as required, then it was necessary for the Griever to have ad-
vised the Employer of the excuse prior to discipline being imposed. It
was argued by the Employer that the Griever did not come forward with
her excuse until after the delivery of the letter of discipline (exhibit
?/5). ,
The position of the Employer was that it would have considered the ex-
planation of the Grievor if it had been given prior to discipline being
imposed and after she spoke to Ms. Mohr on July 29, 1985.
It must be emphasized that until the hearing the Employer treated this
as's matter of insubordination, treating the provisions of exhibit #8
or the general reporting requirements as representing a direct order
which had been disobeyed by the Griever. It was the further position
of the Employer that it was not aware of any mitigating CircUmstanCeS
or excuses for the Griever’s actions. when it imposed discipline and that
it had behaved reasonably in the light of the information that it had
and in the light of the record of the Griever and the nature of the offence.
In referring to the Crievor’s record, the Employer stated that the im-
position of a one day suspension was in accordance with the,philosopiiy of
progressive discipline, there having been a prior identical offence. ThC!
employer referred to a previous matter where the Crievor had been dis-
ciplined on July lSth, 1981 for insubordination.
The position of the Union was that the Griever had a reasonable excuse for
not reporting and did not deliberately act in violation of the rule.
The Employer responded that there was evidence that the Griever had an
alarm clock and that she was negligent in not using it in this circumstances.
The Employer also argued t<at the Griever should, in the circumstances,
have arranged for someone to call the Employer and submitted that the
Griever should have called the Employer before taking a sedative.
Ms. Hohr testified that she saw exhibit /@‘being a written note from Us.
Bavosa, dated July 29th, 1985 stating: “Maisie called at 16:ZO to say she
wasn’t feeling well - and that she couldn’t make it in. Not to mark her
under absent. I told her she had to speak to Wayne or Peter. She said
she was calling long distance*‘, (from Batrie).
Ms. Mohr testified that the Griever called at 9:lO a.m. on July 30th to
advise that she would not be into work on that day. She further testified
that she saw exhibit #9, for the first time at around 8:45 a.m. on July
30th, 1985.
Ms. Bohr stated that she spoke to the Griever at about 9:lO a.m. on
.Julv 30th: 198s but she could not recall whether she received an explana-
tion as to why the Griever had not called, as required, on July 29th.
1985. Ms. Mohr also could not recall whether the details of the Griever’s
illness were furnished on July 30th, during the telephone conversation
which took place at approximately 9:lO a.m.
After speaking to Ms. Bavosa on July 30th, and after having examined
exhibit 89, Ms. Mohr spoke to Mr. Car, the Manager of Operations and.
discussed the possibility of imposing discipline because of the earlier
warning letter to the Griever. It was airreed that a one dav suspension
should be imposed on the Griever for insubordination. The recommendat ion
of Ms. Mohr was accepted,which led to the issuance of exhibit #5 (the
letter of discipline). Ms. Mohr stated that she gave exhibit 115 to the
Crievor on Aug. 8, 1985, and read it to her. The Griever indicated that
she understood what was being conveyetl in the letter:. According to Ms.
Page 81
~i-‘h.
tiohr,. when discipline was considered,and up to the time when it was imposed,
she was not aware of any mitigating circumstances or personal excuses for
failure to adhere to the rule imposed on the Griever. The only reason for
~, the absence known to Ms. Mohr was that the Griever stated that she was
I ill.
Ms. Mohr stated that she believed she would have noted it if the Crievor
had stated (during their c&versation of July 30th) that she had overslept.
Ms. Bavosa testified that she told the Griever that she was unable to take
the call of July 29th in orderto comply with the directive in exhibit
118 . She recalled that the Griever had asked to speak to Ms. Robinson or
Ms. Mohr and that the call had come in on Ms. Robinson’s phone line.
In cross-examination, the Grievor acknowledged that she usually took her
medication the night before she pas scheduled to work and.that she usually
went to sleep after taking it,; and usually slept from two to fivchourg. She
acknowledged that when she took the medication and went to sleep she did
not know exactly how long she would sleep.
Further, in cross-examination, she acknowledged that she usually set her
alarm clock in order to. wake up, but did not do it on this occassion.
In describing her routine , the Griever stated that in order to make her
shift she would get up at 12:00 p.m. (1:OO p.m. at the latest). As she
usually slept from two to five hours after taking the medication, it was
unrealistic of her to behave as she did if she expected to be at work
on time.
From all of the evidence, including the letter imposing the discipline
(exhibit #5>, and the letter to the Griever from the Assistant Deputy
Minister, Bernard Webber, dated November 4th, 1985 (exhibit #4B), it is
clear that, at.least until this hearing, the basis for the imposition of
discipline was the failure of the Griever to report to one of the three
designated management employees by a specific time when the Griever was
unable to report to work and that this was being treated as “an act
of insubordination”. Knowledge of the Gricvor’s excuse was known by,
at least, Aug. 8, 1985.
.
Page 9:
There was no indication,to the time of the hearing, that the basis for
imposition of the discipline was for anything other than the alleged
“insubordination”. On the facts, I would find that the Griever was guilty
of using extremely poor judgment in taking the medication, which had a
sedating effect, and then lying down without setting the alarm clock.
There was. however, nothing to indicate she was acting in an insubordinate
manner. If she was truly insubordinate, she would have failed to call in
any event. 0.
Nor is this a case where the Griever deliberately refused an order while
acting in good faith and without an intention to defy management,be-
lieving she had some justification for doing so. If this were the case,
I would not expect her to have called the Employers at all. The Griever
did not defy management. There is a difference between an implied refusal
to follow an order, which may.~amount to insubordination, and failure
to follow the order, as in this case, because of negligence, which does not
amount to an act of defiance. It would appear that because of her mental
state the Grievor’s judgment was affected and this resulted in her negligent
behaviour . Whatever else it may have amounted to, her behaviour was not
testament to an act of insubordination.
Accordingly, and for the above reasons, the grievance succeeds and the
Griever is entitled to payment for the day of the suspension and for re-
covery of all benefits lost as a result of the discipline being imposed.
Should there be any difficulty in settling the relief, I retain jurisdiction
to do so.
Grievance 956185, ,which concerned the Griever’s performance appraisal,
was withdrawn (see Consent of the parties and the Union filed).
DATED AT TORONTO, ONTARIO, THIS 2Srd DAY OF FEBRUARY. 1988.
M. R. Gorsky
Vice-Chairman
--
I. J. Thomson - Member
\- W. A. Lobraico - Member