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HomeMy WebLinkAbout1985-1173.O'Connor.88-05-25i cumm cIIoI*v EMPmvEE.s GRIEVANCE f3~3~DEMENT IN TEE MATTER OP AN ARBITRATION Under TEE CRoWN El4PLOYEES BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD Between: ------- OPSEU (T.N. O'COnnOrl Griever and The Crown in.Right of Ontario (Ministry of Eealth) Before: ------ K.P. swan Vice Chairman 1.J.. Thomson Member D. Middleton Member Zor the Griever: A. Millard --_---_---_---- counsel Millard Barrister & Solicitor -.. r'or the Employer: ---------------- D.W. Brown, Q:C. Ministry of the Attorney General 1173/85 Em>loye< Hearing: ------ June 5, 1986 DECISION This case involves a purported release of a probation- ary employee, Mr. T.N. O'Connor, by letter dated October 30, 1985. Mr. O'Connor has grieved that he was discharged without just cause from his position, while the Employer relies on section 22(5) of the Public Service Act. The only issue before the Board is whether the Employer is, in all the circumstances, entitled to rely upon those~provisions. If so, this Board has no jurisdiction to deal with the issue. There is no dispute as to the facts ~upon which this matter must be decided. The grievor had been an ambulance dispatcher with the Halton-Mississauga Ambulance Service since 1974. On June 3, 1985, that service was taken over by the Ministry of Health, and the grievor, presumably along with other employees, became a Crown employee. The grievor continued to be employed as an ambulance dispatcher, with a classificationof Radio Operator 2. Nevertheless, because he had become a Crown employee only on June 3, 1985, he was a probationary employee at all material times up to and including the termination of his empl,oyment. The grievor was employed in the Communication Centre in Mississauga, which is responsible for dispatching first response units, typically ambulances and emergency support units, in response to emergency calls. Police and fire units are called in as.,required. Dispatchers work rotating eight hour shifts, with ._ the staffing level in each shift based on .the projected call volume. The dispatcher job is described as extremely stressful, : requiring accurate and ca .lm response whi le dea lingwith upset callers. The dispatcher is responsible for the safe expediting of emergency services., often involving situations which are dangerous to the response units themselves. When a dispatcher is' absent, the same call volume must still be handled; and it becomes necessary to replace.the dispatcher by whatever means is available, including part-time employees, overtime or use of managers. If a replacement is not possible, the other employees simply have to work even harder at a stressful job. For these reasons, an ability to maintain. regular attendance at work is an important qualificat.ion for the job. - 2 - The griever's attendance became an issue very quickly. .After five weeks of perfect attendance, the griever missed five straight shifts in July 1985. When he was spoken to about the problem by Ms. Cathy Wilson, the Manager responsible for his unit, he told her that he.was an alcoholic, and that he had "fallen off the wagon". He requested that the time be treated as sick leave, but it was ultimately decided to.treat it as vacation instead. Ms. Wilson offered~ him advice concerning the Employee Assistance Program, and also gave him the names of two people who could assist him. He declined this assistance, indicating that he was .already engaged with an alcoholic support group. Follow- ing this meeting, Ms. Wilson wr.ote to him to indicate that his attendance record would be taken into consideration as to his suitability as a probationary employee. Despite this warning, the grievor's attendance record - 3 - simply collapsed. In effect, he barely worked at all from the middle of August until the end of October. His overall atten- dance ratio during his period of government employment was around 50% of his scheduled shift. While there were actual physical ,medical problems to explain his absences, it appears that the ,.~s+u,,bstantial reason for the absence was his alcoholism. Ms. Wilson spoke to the grievor on a number of subsequent occasions, reiterating her warning that his continued absence would be taken into account, but no further mention was made of his alcoholic condition. This Board's jurisprudence on the distinction between a release of an employee during his probationary period under section 22(5) of the Public Service Act and a disciplinary discharge has been dealt with in a number of cases, three of which have been reported: .see Re Leslie and The Crown in Right of Ontario (Ministry of Community and Social Services) (1978), 22 L.A.C. (2d) 126 (Adams), Re Halladay and The Crown in Riqht of Ontario (Ministry of Industry and Tou~rism) (1979), 22 L.A.C+ (2d) 145 (Swan), and Re Bartello and The Crown in Right of Ontario (Ministry of Transportation and Communications) (1982), 5 L.A.C. (3d) 229 (Roberts). These cases ~establish that, to find juris- diction to deal with a particular termination, the Board must find that a grievor has been "dismissed. . .from his employment without just .cause", so that the matter fits within section 18(2)(c) of the Crown Employees Collective Bargaining Act, rather than a release from employment, "for failure to meet the require- ~... - 4 - ments of his position", within.the meaning of section 22(S) of the Public Service Act. In the present case., the Union argued that the treat- ment of the grievor could be characterized as disciplinary, since the absenteeism of the grievor was without permission, and was SO serious and extended in natures that the Employer may well have i. decided to take disciplinary action against him. 'In our view, the uncontradicted evidence of Ms. Wilson makes it perfectly clear that the Employer's response related entire1.y to the grievor's inability to meet-the requirements of the position. Absenteeism is a valid concern for a probationary employee, one which has been recognized by this Board in other ca*e.s, including Blundell, 685/81, a consideration which was, approved by the Divisional Court in Re Ontario Public.Service Employees Union and The Queen in 'Right- of Ontario (1983) 148 D.L.R. (3d) 375~. There was nothing vindictive, retal.iatory or even corrective in the Employer's approach to the grievor. He was offered what assistance~ the Employer could provide, but he declined to avail .himself of it. The Employer, after waiting a reasonable period to assess his ability to maintain regular attendance, determined that i.t could no longer continue with the employment relationship with an employee who simply could not meet the requirement of regular attendance at work and therefore terminated his employment, and we think that termination was a valid release pursuant to section 22(S) of the Public Service Act, and thusbeyond our jurisdiction. - 5 - Frankly, we find this outcome extremely troubling. An employee with 11 years s,ervice deserves far better consideration than to be treated as a probationary employee, and in particular to be subjected to a probationary period of a full. year. This means that the effect of the takeover of the ambulance service by the Crown has been to wipe out all of the rights of the grievor, and indeed all other employees as well. This is, in our view, a shocking outcome, but.one which, in the submissions of counsel, the legislation required. In making this observation, we express no opinion on the merits of whatever case might be made for the grievor at arbitration. We merely observe that it is very unfair that an employee with so many years service is denied even:the oppor- tunity to make submissions about his employment future. Such unfairness should, in our view, lead to a re-examination of the terms and conditions under which employees of private employers become Crown employees upon a takeover of this kind. While this is clearly a tragic case, we have no jurisdiction to enter into any consideration of the merits. The grievance is therefore dismissed. Although Mr. Middleton took part in the hearing and the deliberations of the Board, his untimely death has made it impossible for him to sign the award. This is therefore the award of the majority of the hearing panel, as authorized by section 20(6) of the Crown Fmployees Collective Bargaining Act. - 6 - DATED AT TORONTO, Ontario this 25th day of nay, 1988. I.J..(g- on, mmber .* ddleton, Member .