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HomeMy WebLinkAbout1985-1160.Stacey.86-12-17File #1160/85 IN THE MATTER OF AN ARBITRATION' UNDER THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT BEFORE -THE GRIEVANCE SETTLEMENT BOARD BETWEEN: OPSEU (CARL STACEY) - and - Grievor, THE CROWN IN RIGHT OF ONTARIO (MINISTRY OF CORRECTIONAL SERVICES) Employer. BEFORE: R. L. Verity, Q.C. J. McManus G. Peckham FOR THE GRIEVOR: M. I. Rotman, COUnSel Rotman, Zagdanski, Barristers & Solicitors. FOR THE EMPLOYER: J. Hannah, Staff Relations Officer Human Resources Management ~-p~ HEARINGS: April 16, 1986 Toronto; Ontario September 9, 10, 11, 1986 Kingston, Ontario October 1, 1986~ " Toronto~, Ontari~e Vice-Cha Member Member irman : -2 -. DECISI,ON The Grievor, a Government employee with approximately.15 years seniority and classified as a Correctional Officer 2 was .I by Quinte Detention Centre Superintendent G. K. Meyer on dismissed November dismissal 19, 1985 for reasons of excessive absenteeism. The was pursuant. to Section 22(3) of the Public Service Act. The termination letter read, in part, as follows: "On November 7, 1985, I met with you in order to discuss the allegation that you have failed to maintain an acceptable aft,endance during your employment as Correctional Officer. This meeting was a follow-up to a meeting held September 3, 1985, with yourself and Mr. W. Schneider, Deputy Superintendent, Quinte Detention Centre. As a result of the September 3, 1985, meeting you attended a mandatory.medical examination in accordance with Article 51.9 of the Collective Agreement. This examination was carried~out on October 9, 1985, with Dr. Milne, Kingston, a mutually agreeable physician. Following the medical examination, you again met with Mr. Schneider, on October 29, 1985, when you refused to sign a medical release of information form, in spite of then fact that the rationale in attending the medical exam was fully explained to you on September 3, 1985. However, you indicated that you did not realize that management would require a medical report as a result of the medical examination. -3 - During our meeting of November 7, 1995,,~the rationale for requesting a medical examination in accordance with Article 51.9 was again reviewed with you. Again, you refused to co-operate in authorizing a release of medical information, which would have assisted in clarifying a future prognosis. I have reviewed the allegation and have found your record of absenteeism to be excessive. Also, thaton several occasions, management have documented their serious concerns to you respecting your record of absenteeism and on August 19, 1983, you were given a final warning. Despite these efforts your attendance record'-hasnot reached a satisfactory level. Clearly, your record indicates that you cannot be relied upon to regularly attend work, which is a fundamental expectation of the employment relationship. As well, yours refusal to sign the medical release, thwartes any assistance which we may Abe able to provide you*";.** .) The grievance filed alleged ,dismissal without just cause. The settlement requested was reinstatement'with full remedial redress.~ It was acknowledged that the Grievor was discharged for reasons of "innocent absenteeism" and that this was not a disciplinary matter. There is no allegation that the Grievor's work was anything but satisfactory. ,However, there are overtones of attitudinal problems and unto-operative behaviour as exemplified by the failure to sign the medical release form. -4- Arbitral authority is legion in cases of innocent absenteeism. One of the most frequently quoted passages on this topic is from the Award of Arbitrator Weatherill Re Victoria Hospital, London, and District Building Service Workers' Union, Local 220 (1979), 24 L.A.C. (2d) 172 where .the learned Arbitrator states at pp. 173 and 174: "In cases of 'innocent absenteeism', where the employer is contemplating the termination or . interruption of an employee's employment, there must, we think, be some"proper and appropriate occasion for it to consider and act on that possibility. The 'culminating incident' need not necessarily be an actual instance of ~absence from work..... In cases of 'innocent absenteeism', what is required, is that there be some proper and appropriate occasion for assessing the employee's attendance.and health, and for considering the question .whether or not the employee. can give reasonable attendance in the future." The Ontario Divisional Court in an unreported Judgment =.;. .~. .~ / dated February 13, 1986, in dismissing the Application for Judicial Review in OPSEU (Waltraut Greeven) and Ministry of Health 67/84' (Verity) quoted with approval the Victoria Hospital Award. In addition, the Divi~sional Court made the following comments: .,q:: n . ..There were three essential elements for the Board to consider in this case namely: (1) Whether there had been a culminating incident, (both the parties had put that 'question before the Board); -5 - (2) The record of past absenteeism; and, (3) The prognosis for future regular attendance...." In the instant grievance, the Board is faced with the identical considerations. Quinte Detention Centre is a maximum security remand ,centre located at Napanee, Ontario. For some years, the Centre has had an .Attendance Review Committee that meets monthly to monitor staff attendance. Staff are advised quarterly on the use of attendance credits. At all relevant' times, the Committee was comprised of the Deputy Superintendent, the Senior Assistant Superintendent-and the Office Manager. In February, 1981, Deputy Superintendent W. F. Schneider wrote to ~the Grievor and detailed his absences from May, 1980 to February, 1981. The Grievor was notified thatimprovement in his attendance pattern was a requirement. In March, 1981, the Grievor was counselled on his attendance. The then Superintendent E. W. Martin, wrote to the. Grievor on April 6, 1981 at which time he noted "a marked deterioration fin your record of attendance" between April 1980 and April 1981. The Superintendent concluded the letter by requiring the Grievor to produce a medical certificate for every absence due -6 - to illness pursuant to Article 51.10 of the Collective Agreement. The requirement to produce a medical certificate was eventually removed in January, 1982. Absenteeism continued to be a problem in both 1982 and 1983. In July, 1983, the Grievor was'called to a meeting to discuss his attendance record and associated punctuality problems. Deputy Superintendent W. F. Schneider wrote to the Grievor on August 19, 1983 expressing concern that for the preceding year, the Grievor had utilized 31.5 credits on 11 separate occasions. The letter clearly stated that the Grievor would be given one final opportunity to demonstrate attendance improvement. The letter concluded with the statement, "Any further excessive absenteeism will be dealt with most severely, not excluding possible dismissal. This letter will thereby act as a final warning.". From 1980 to 1984 Correctional Officers at the Quinte Detention-Centre worked 12 hour shifts. In 1985, some Correctional Officers worked 8 hour shifts while others worked 12 hour shifts. To equalize the attendance figures, staff required to work a 12 hour shift would lose 1.5 credits when absent', while staff scheduled to work an 8 hour shift would lose 1 credit. From 1980 to 1985 the Griever's record of absenteeism wasp well above the average figures for other Correctional Officers in -7 - similar circumstances (excluding ~LTIP employees and those on WCB). The mass of statistical data presented at the Hearing comparing credits lost can be summari zed as follows: 1980 ~1981 1982 1983 .‘1984 1985 GRIEVOR 12.0 !3.5 24.0 16.5 60.0 13.0 1.0 C. 0,'s AVERAGE 4.83 13.5 5.67 12.9 8.67 Il.20 8.60 14.82 10.37 12.49 11.95 24.25 INSTITUTIONAL AVERAGE In 1984, the Griever broke his left wrist while playing basebal~l. Accordingly, he used some 40 credits while recovering from the injury in.June and July and .attending physiotherapy sessions in September and October. He was placed on light duty assignment on August 7, 1984, but refused to attend work until August 20. He received a written reprimand for failure to attend. Three separate grievances were ~filed relating to that incident, two of which were heard before a panel chaired by Vice-Chairman Knopf on November 29, 1985 and April 14, 1986. The first grievance involved a claim that the Employer had improperly contacted the Grievor's physician and had used unauthorized information to deny entitlement to sick pay from August 7 to~'August 20, 1984. The -8 - second grievance alleged discipline without just cause Decision dated June 20, 1986, Vice-Chairman Knopf dism grievances. . Ina issed both On August 6, 1985, the Deputy Superintendent met with the Grievorbriefly to express renewed concern over the use of sick credits. A second meeting between the Parties took placed on September 3, 1985. At that time, the Deputy Superintendent reviewed the Grievor's attendance record dating back to 1980. It was agreed that the Grievor would attend a mandatory medical examination, subject to the approval of his personal physician. On October 9, 1985, the mandatory medical was performed by Dr. Richard T. G. Milne, one of two Kingston general practitioners retained by the Ministry to perform mandatory medicals. . Deputy Superintendent Schneider wrote to Dr. Milne on' September 30 requesting that the mandatory medical contain information as to the Grievor's present state of health, the reasons for the extensive use of sick time, and an opinion as to the likelihood of regular future attendance. i :,.: On October 11, Dr. Milne wrote a three page letter to the Deputy Superintendent. Unfortunately, the Detention Centre had neglected to obtain -a medical release form from the Grievor. There is no dispute that Dr. Milne had advised the Grievor that he would - 9 - sends a report to the Institution. When the Deputy Superintendent requested the Grievor to sign the required release on October 29, he refused to do so. The Grievor met with Superintendent Meyer on November7 and again refused to'sign the release. At that meeting, the Grievor delivered a~ letter addressed to the Deputy Superintendent....The letter merits repetition: "On Tuesday, September 3,,1985 Mr. G. Burnette and myself attended a meeting with you and Mr. W:Cooney. At this meeting I agreed to have a medical with Dr. Milne after first consulting with my own doctor. I did not agree to sign any medical ,release nor was the question put forward to me. Mr. Cooniy agreed that I did have medical slips covering. almost all of my days absent and their main concern was what I could promise about my future attendance. I stated that I couldn't promise I wouldn't have an accident and be hurt so that I couldn't attend work as this is something I am unable to predict. If there were any concerns about my fut,ure medical problems resulting from the K medical, I stated that I would first discuss and. consult with my own doctor. It is my wish that a copy of this letter be placed on my .file for future reference." Obviously, Superintendent Meyer was frustrated by the Grievor's refusal to sign the medical release form. He testified that he reviewed the Grievqr's absenteeism record and based-on that : . - 10 - record decided .upon dismissal as the only available course of action. Although Superintendent Meyer had seen Dr. Milne's report, he did not consider that report in the decision to terminate. Essentially, the Superintendent's rationale for dismissal was three-fold: (1) A."poor' attendance record over the past five years; (2) The highest use of attendance credits for any C.O. in the Institution; (3) The Griever's lack of co-operation in improving credit usage. Based on the past record of absenteeism, the Superintendent concluded that the likelihood.of regular attendance in the future was .poor. With,the exception of the fractured wrist in 1984, the Griever's absences were generally intermittent and sporadic in nature. The reasons for the absences varied from the flu, concussions, and repeated episodes of back injury. Many of the Griever's injuries were obtained while playing contact competitive sports - particularly hockey and baseball. Other injuries related to accidents ate home. - 11 - The Grievor testified in some detail concerning his absences. He also testified that on September. 15 he met with Deputy Superintendent Schneider at which time he was accused of stalling in obtaining the mandatory medical and was threatened with .discipline. The Grievor alleged that he was told by Dr. 'Milne in October of 1985 that he was healthy and fit and that there were no problems. According to the Griever's testimony, "I considered the matter closed". To justify his refusal to sign the medical release form, the Grievor testified that he felt it was unnecessary for three reasons: first, it would interfere with his upcoming grievance, secondly, he.was of the understanding that the Employer wanted a blanket medical re~lease, and thirdly, the Employer had already received Dr. Milne's. report. The real reason for the Griever's c,oncern was that he had seen a Kingston psychiatrist in June of 1985 - a fact that was not known to the Employer. Mr. Stacey's evidence was that hisabsences in 1985, with the exception of theone day absence in August, related to stress on the job - stress caused from overcrowding and understaffing at Quinte Detention Centre. On.behalf of the Employer, Mi. Hannah contended that the Grievor's second refusal to sign the medical release on Nov.ember 7 - 12 - was the culminating incident. He contended that the Griever's . record of absenteeism was excessive. Further, Mr. Hannah arg.ued that the prognosis for future attendance at that time was unfavourable, and further that the Grievor bore the onus to demonstrate a favourable prognosis on clear and cogent medical~ testimony. Mr. Rotman contended tha~t the Employer had failed to- prove any of the three tests of innocent absenteeism. In particular, he argued that there wasno culminating incident, no evidence of excessive absenteeism on appropriate comparisons, and that there was no evidence that the Grievor was medically unfit to provide regular attendance in the future. Mr. Rotman argued 'that the Griever should be reinstated based on Dr. Rubenstein's favourable prognosis and compensated accordingly. On the evidence, the Board is satisfied that given the circumstances surrounding the Grievor's final refusal to sign the medical release form on November'l, it was an appropriate occasion to assess the Grievor's attendance and health on the evidence then available. If there was confusion concerning the form of release required by the Employer, that confusion existed only in the mind of the Grievor. Obviously; he could have resolved any concern by posing appropriate'questions and reading the proposed medical release. In sum, the Grievor's explanation for his,~refusal .I.‘ -13- to sign the medical release, after having agreed to the mandatory medical 8 is simply not credible. The Employer had the right, we think, to question the Griever's attendance record on August 6, 1985 because of his use of seven attendance credits in May and two cre'dd-its in June. The medical certificates filed in support of those absences reveal no medical reason for either absence. The second issue is whether the Griever's absenteeism is excessive. In this cas.e, the better comparison for attendance purposes, we think, is with all other Correctional Officers in similar circumstances. Any such comparison should not include Correctional Officers on Workers' Compensation benefits or on long-term income protection. We cannotagree with Mr. Rotman's contention that the institutional average is a fair comparison - See OPSEU (Jeannette Jones) and Ministry of'Government Services 537/82"(Jolliffe). "Excessive absenteeism" cannot be defined with any degree Of precision. The variables include statistical comparisons, the reasons for the absences, the frequency of the absences,,the past attendance record and the facts of each case. In the instant grievance, the Grievor has accumulated the greatest usage of credits of all Correctional Officers in similar circumstances - two - 14 - and one-half times greater than the average Correctional Officer in J980; a similar result in 1981; three times the average in 1982; two times the average in 1983; and six times greater than the average in 1984. Ironica~lly, the best comparison from the Griever's standpoint was in 1985. Although he was dismissed,on November 19, he had by that time managed to exceed the Correctional Officer average by some 25%. On the evidence, the Board is satisfied -that the Grievor has accumulated a record of excessive absenteeism over the five year period. The more difficult issue is the prognosis of regular attendance in the future. At the Hearing, the Employer adduced medical testimony by calling Dr. Milne who had performed the mandatory medical on October 9, 1985. Dr. Milne examined the Grievor on that date for approximately l-1/2 hours. The Doctor concluded that the Grievor was in "generally good health" with no discernible medical or psychiatric problem. Dr. Milne reported that the Grievor seemed "unusually prone to fractures, muscle and .soft tissue injuries", and that the "rather flat emotional picture" portrayed by the<Grievor during the medical assessment mighthave resulted from a skull fracture and head injuries sustained during childhood. - 15 - However;Dr.'Milne concluded that he was satisfied that the Grievor did-not~appreciate management's absenteeism concerns and further that in his opinion "I can't honestly believe that his. rate of absenteeism will change". In cross-examination, the Doctor candidly admitted that his prognosis was based on a brief attitudinal assessment and that he had per'formed no psychological assessment. Dr. Arnold Rubenstein, a Clinical Psychologist associated with the Etobicoke General Hospital in Toronto, testified on behalf Of the Grievor. Dr. Rubenstein, performed a psychological assessment at the request of Mr. Rotman over a three day period (some seven hours) inJuly of 1986., He administered. four psychological tests; namely, Wechsler Adult Intelligence Scale, Rorschach test, Thematic Apperception Test, and Beck Depression Inventory.' The results of the various testing.procedures satisfied Dr. Rubenstein that the Grievor was a reasonably articulate man of "average intelligence" who possessed a "highly developed moral sense" of right and wrong, and was "a man of cdnsiderable integrity? Dr. Rubenstein testified that the Grievor has had an attitudinal change and now recognized that he was rather tactless I - 16 - and undiplomatic in his According to Rubenste in various confrontations with management. "his approach has modified so he knows now his approach was designed to antagonize" . The Psychologist further noted that the "testing indicates he has some flexibility and that he can adapt". Dr. Rubenstein acknowledged that he was in no position to make a medical assessment and that his favourable prognosis for the Grievor's regular attendance in the future was based solely on the results of the psychological tests. There is a marked division of opinion among Arbitrators on the appropriate time to determine future prognosis. Vice-Chairman Brandt considered that issue in OPSEU (Kathy Runco) and Ministry of the Environment 156/84 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 prognosis 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 '- 17 - the hearing into the matter. The following extract from that case sets out the basis for this conclusion: The employee who the employer seeks to terminate in a case such as this has been absent from work for reasons beyond his 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 recognized, that 'it would not be fair or just to permit the termination of an employee for reasons which he is$owerless 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 blameless absenteeism is likely to be'regular in attendance in the future, it seems to me that 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 a* 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 I - 18 - shearing 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." 7 ~ The present Vice-Chairman adopts the rationale of Arbitrator Burkett as did Vice-Chairman Brandt in the Runco Decision. .., In assessing the conflicting testimony on future prognosis, there is no dispute regarding Dr. Milne's medical ' assessment. Briefly stated, there is no medical or psychiatric reason why the Grievor would be incapable of regular attendance in the future. In our opinion, Dr. Milne's unfavourable prognosis is an educated guess at best, based on his 25 years as a general ,~ practitioner. Clearly, Dr. Milne,performed no psychological assessment and in fact, his prognosis iss:'based on general observations and on some five minutes of general questioning. Clearly, a more indepth psychological assessment, was performed by Dr. Rubenstein. Admittedly, Dr. Rubenstein has no medical training. He is nevertheless, a Clinical Psychologist with considerable experience in psychological testing procedures, His :. testimony cannot be ignored. - 19 - On all the evidence presented, the Board .cannot conclude that the Griever's prognosis is bleak. In particular, having regard to the Griever's apparent attitudinal change towards Management's legitimate concerns, the fact that he incurred one day's absence in his final five months of employment, his.good, physical health, the fact that he has given .up competitive contact sports., there:appears to be no compelling reason why the Grievor cannot attend work on a regular basis in the ~future. As the Parties were advised by telex, following an Executive Session of the Board, the .Grievor was conditionally reinstated to his employment as a Correctional Officer 2 at Quinte Detention Centre effective Monday, November 17, 1.986. The Grievor's refusal to s$gn the mandatory medical release form and his generally unto-operative ~behaviour in failing to provide any medical information left management with few, if any, options to pursue. In these circumstances, the Grievor is not entitled to reimbursement for lost wages or benefits. Accordingly,~ we make the following order: (1) : The Grievor shall be reinstated ~to employment as Correctional Officer 2 a.t.th@ Quinte Detention Centre effective Monday, November 17, 1986. .- - 20 - 2) There shall be no loss of seniority benefits resulting from the dism (3) Upon reinstatement ssal on November 19, 1985. the Grievor shall not incur an absenteeism record that exceeds the average absenteeism of all Correctional Officers in similar circumstances at Quinte Detention Centre during each of the first two years of his employment. Failure to meet that standard during either yearshall result in immediate dismissal for violation of this condition of reinstatement. (4) During the two year period, the Grievor shall provide proper medical certificates for all absences due to medical reasons, which shall specify the medical reason for any and all such absences. DATED at Brantford, this 17thday of December, A.D., 1986. ._ --..~,~~~ R. L. Verity, Q.C. -Vice-Chairman - Member G. Peckham - Member ./