Loading...
HomeMy WebLinkAbout1987-1098.Jone.89-04-13ONTARIO EMPLOYES ml.4 CO”,wNNE cFowNEMP‘ovEEs DE L’D”TAR,O GRIEVANCE n a BOARD CQMMISSION DE SETTLEMENT REGLEMENT DES GRIEFS IN TEE NATTER OF AN ARBITRATION Under TEE CROVW EEPLOYEES COLLECTIVE BARGAINING ACT Between: Before: APPEABING FOR TEE GRIEVOR: APPBAEING FOR TBE ENPLOYER: BEARING: November 19, 1987 Grievor Before THE GRIEVAECK SETTLBBBNT BOARD . OPSEU (Barbara Jane) - and - The crown in Right of Ontario (Rinistry of Government Services) employer J.E. Emrich - Vice-Chairperson I. Freedman - Member I.J. Cowan - Member C. Wilkey Counsel Cornish & Associates Barristers & Solicitors J. Glenny Local President Ontario Public Service Employees Union D.W. Brown Director Crown Law Office Civil Ninistry of the Attorney General W. AttCee Manager, Printing Services Purchasing Services Branch ministry of Government Services The grievor requested and was granted a six month leave of absence without pay expiring on Feburary 17, 1987. The grievor was classified at the time as a Secretary 3 in the Printing Services department of the Purchasing Services branch of the Ministry of Government Services. The leave was granted for the purpose stated in the grievor’s application, that she was required to attend to the needs of an ailing aunt who resided in California. This*arbitration arises from the Employer’s refusal to grant an extension of the leave requested by the grievor on February Znd, 1987. The grievor was tnvolved in a motor vehicle accident on January 29, 1987 and claimed that she would be unable to report back to work by February 17, 1987. The Employer refused to grant the extension and instructed the grievor to report to work by March 4, 1987. The grievor did not report for work on or before that date. On March 24, 1987 the Deputy Minister sent notice to the grievor that he had declared her position abandoned and vacant effective on that date, in accordance with s.20 of.the Public Service Act. On April 23rd, 1987 the grievor filed a grievance claiming that she had been wrongfully dismissed. At the outset of the hearing, two preliminary matters arose. Counsel for the grievor was seeking an adjournment of the grievance as thegrievor was unable to attend on the date set for the hearing. Counsel for the Ministry opposed the request for adjournment and raised an objection to the jurisdiction of this Board to reviev the exercise of discretion by the Deputy Flinister to declare the position abandoned and thereupon vacant pursuant to s.20 of the Public Service Act. On behalf of the grievor, the Union contended that this Board had jurisdiction to review whether the decision by the Deputy Minister to declare the position abandoned was reached fairly and In good faith, having particular regard to the effect of the decision. which was to effect a termination of the grievor’s employment. In respect to the propriety of an adjournment , the Board was referred to its practice direction dated hay 2, 1984 which states the following: The Board’s general practice is only to grant a contested adjournment where the request is based upon a situation beyond the control of the party making the request and where to proceed would seriously prejudice that party. It was submitted that the grievor had obtained full-time employment in July 1987 at a bank in San Francisco. She had obtained a discretionary leave from this employer to travel to Toronto from November 11th to 13th to accompany her daughter for medical testing. Apparently the grievor did not realise at the time that this discretionary leave was sought that this case was set down for hearing on November 19th, 1987. She was unable to obtain an extension of the leave or further leave to attend at this hearing. Counsel stated that the grievor was eligible for vacation in December and conveyed the grievor’s assurances that she would be able to attend a hearing set at a later date. It was pointed out that prejudice to the grievor would result if the adjournment vere refused because the grievor would not be able to obtain a full hearing on the merits. Fur thermore, counsel emphasised that the grievor was unable to attend on the hearing date since such attendance would jeopardise the continuity of her employment in California, upon which she and her daughter depended. On behalf of the Employer, it was argued that a declaration of abandonment by the Deputy Minister pursuant to 6.20 of the Public Service Act is to be distinguished from a release from employment under s.22(5) and from a dismissal for cause pursuant to s.22(3). Counsel 2 for the Employer acknowledged that this Board has asserted jurisdiction to ascertain whether a grievor’s termination constitutes a bona fide release or a grlevable dismissal pursuant to s.l8(2)(c) of the Crown Employees’ Collective Bargaining Act (CECBA). See, for example, Leslie 80177, Haladay 94178, Ferraro 373184 and Church 761183. If the termination constitutes a release pursuant to s-22(3), the grievance is not arbltrable. Mr. Brown urged the Board on parallel reasoning to find that a termination arising from a declaration of abandonment under s.20 is not arbltrable. In the alternative, it was argued that even if the Board were to assert jurisdiction to review whether the declaration of abandonment was made lo good faith, the facts in evidence constituted no basis upon which to conclude that the declaration was made in bad faith. It was contended that at the time the Deputy Minister made the declaration of abandonment, rhe grievor’s justification for not returning to work were deficient. Finaily, it was argued that the evidence and the reasons put forward for the grievor’s inability to attend the hearing did not constitute a reasonable basis for granting an adjournment in tie face of prejudice to the employer arising from the uncertainty surrounding the grievor’s posltlon. The relevant provisions of the legislation and collective agreement read as follows: Public Service Act s.20 A public servant who is absent from duty without official leave for a period of two weeks or such longer period as is prescribed in the regulations may by an instrument in writing be declared by his deputy minister to have abandoned his position, and thereupon his position becomes vacant and he ceases to be a public servant. 3 Crown Employees Collective Bargaining Act 6.18(l) Every collective agreement shall be deemed to provide that it is the exclusive function of the employer to manage, which function, without limltlng the generality of the foregoing, includes the right to determine, (4 employment, appointment, complement, organisation, assignment, discipline, dismissal, suspension. work methods and procedures, kinds and locations of equipment and classification of positions; and (2) In addition to any other rights of grievance under a collectlve~ agreement, an employee claiming. (c) that he has been dlsclplined or dismissed or suspended from his employment without just cause, may process such matter in accordance with the grievance procedure provided in the collective 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. Turning to the evidence filed, the Board finds that in the memorandum granting a six month leave without pay to the grievor dated July 24, 1986 from Mr. Attree, Manager, Printing Services, the grievor was put on notice that ho time extension would be granted to this leave nor would similar leaves be approved in the future. The period of leave granted extended from August 18. 1986 to February 17, 1987. On February 2, 1987 the grievor wrote to MC. Attree,conflrming her telephone conversation of the same date in which the request for an extension was reiterated. The reasons for the request are stated in the letter, the substance of which reads to the following effect: Dear Bill, Per our telephone conversatioo this morning regarding extension of my leave of absence because of my motor vehicle accident on January 29, 1987 I ask your consideration of my request. !dy aunt and I were involved lo an accident which 4 extensively damaged my car and caused me some pain in my neck, back and shoulders. While the other driver was thoroughly at fault (as proven by witnesses) the Police report and Insurance papers will take some time to process, besides I have to see a physician to get a medical report. Therefore I am not able to report back to work until all this case is resolved. I am sorry if my request may cause you some inconveniences but under the circumstances, there is very little else I can do. I hope you will consider favourably my request. Yours sincerely, Barbara Jane On February 16, 1987, Mr. Attree wrote a reply to the grievor confirming that the grievor’s request for an extension of her leave was denied in the following tents: Dear Miss Jane: In response to your telephone call and subsequent letter of February 2, 1987, requesting an extension of your leave of absence, I must advise you again that your request is denied. Under Section 20 of the Public Service Act, a public servant who is absent from duty without official leave for a period of two weeks or longer, may be declared by his/her Deputy Minister to have abandoned his/her position. Since your leave of absence terminates on February 17, 1987, it is expected that you will return to work on or before March 4, 1987. Failure to do so will result la our proceeding vith a recommendation to the Deputy Minister to declare you to have abandoned your position. Yours truly, Bill Attree Thus, the grievor was put clearly on notice that her failure to report to work on or before March 4, 1987 would lead to management , recommending to the Deputy Minister that the position be declared abandoned. The grievor did not report to work on March 4, 1987. The police report concerning the motor vehicle accident dated February lst, 1907 and a report from the grievor’s chiropractor were filed in evidence. They had~been forwarded to Mr. Attree under cover of the grievor’s letter of February 2nd, 1987. The medical report dated March 2nd, 1987 reads as follows: RR: Leave of absence extension Miss Barbara Jane-Sleh presented herself in this office for care and treatment of severe neck. shoulder, arm and mid-back pain. Said injuries are direct results of an automobile accident which occured January 29, 1987. Treatment will be rendered this patient over a three month period, this of course means that Ms. Jane-Sleh must stay in the area for that length of time. Any cooperation which can be extended this patient would be greatly appreciated. Sincerely, Stephen L. Young, D.C. On March 24, 1987 the Deputy Minister issued a declaration that the position was abandoned and vacant and notice to this effect was dispatched to the grievor. On April 3, 1987, the grievor responded as follows: Dear Mr. Raymond, Thank you for your letter dated March 24, 1987. I regret to say that I was unable to return to work on due date due to an auto accident which happened at that crucial time. I wrote to Mr. Wm. Attree explaining my unfortunate auto accident with resultant injury which required three 6 months continuous treatment. I also enclosed an original medical report from my doctor and a copy of police report regarding thfs accident, expressing my desire to return to work as soon as I was able to do so. I definitely had no intention to abandon my position! Thank you once again for your valuable time to write to me, I just wanted to clarify my unfortunate situation. Sincerely yours, Barbara Jone The grievor travelled to Toronto in order to file her grievance on April 23, 1987. Prior to the second stage hearing of the grievance on May 29, 1987, two further reports were prepared by the grievor’s chiropractor dated March 27, 1987 and May 8, 1987. These reports confirmed that the grievor was continuing to receive treatment for whiplash injuries received from the motor vehicle accident dated January 29, 1987. Treatment was projected to continue through the month of August, 1987. The chiropractor, Dr. Young, stated that the grievor was required to remain in the United States for her treatment. After this correspondence, the Employer received no further communication from the grlevor,as to the length of her treatment, the resolution of the case arising from the motor vehicle accident, or her expected return to Toronto. Assuming, without deciding whether the Board has juclsdlctlon to review the Deputy Minister’s decision to declare the grievor’s position abandoned, the Board is of the view that the facts disclosed do not support a conclusion that the declaration of abandonment was made without good faith or in an arbitrary fashion. Furthermore, the Board 7 finds that the facts do not persuade the Board to exercise its discretion to grant an adjournment. The grievor’s letters of February 27th and April 3, 1987 indicate that the Deputy Minister had before him the police report of the motor vehicle accident and at least Dr. Young’s report dated March 2, 1987. The reports of DC. Young dated March 27, 1987 and May 8, 1987 reiterate the contents of the March 2nd report, extending only the expected length of treatment from May through to August. Although the grievor’s chiropractor indicates that the grievor must stay in the United States to receive contlnuiog care, no evidence was produced to indicate that the grievor could not receive comparable treatment for her whiplash injuries in Toronto. This sort of injury was not so severe as to render the grievor immobile until August. Furthermore, the grievor indicates in her letters of February 2nd and 27th that she would not be able to report back to work until the case arising from the motor vehicle accident had been resolved. Indeed’ such matters could take an indefinitely long period of time and it is unreasonable for the grievor to maintain that this should pose an impediment to her return to work. No further evidence was adduced to suggest that the resolution of the case depended upon the grievor remaining in the jurisdiction of California. The grievor was not at fault for the accident according to the accident report. Flnally,,lt was made very clear to the grievor from the outset that oo extension would be granted to the six month leave. The original purpose of the leave was to provide temporary care for the grievor’s aunt pending the arrangement of permanent care by a suitable person where the aunt resides. At the time the accident occurred; one . could expect that the grievor would have made such arrangements as she was scheduled to return to work by February 17th - eighteen days later. Certainly .one could- reasonably expect that such arrangements could have been made in time for the grievor to return to work before March 4, 1987. Meanwhile, the Employer was obliged to make temporary arrangements to have the work of the grievor’s position performed during her absence. Since the grievor insisted that her return was dependent upon the duration of her treatment, which was extended, and upon the resolution of the case arising from the motor vehicle accident, the Employer was faced with an indefinite return date. In all these circumstances, the Board could not hold that the Deputy Mlalster had exercised his discretion to declare the poslclon abandoned in a manner that was unfair, arbitrary, in bad faith, or otherwise improper. Thus, it is not necessary for the Board to decide categorically whether the Board has jurisdiction to conduct such a review, since the facts would not support the grievance, even if jurisdiction is assumed. The facts do not support a conclusion that it was beyond the control of the grievor to have attended the hearing. She was notified in October that she would be required to attend this hearing on November 19th. Her discretionary leave was not to be taken until November in any event. The grievor chose to utilise this leave for another purpose and thereby chose her priorities. On the other hand, should the adjournment be granted, the Employer is faced with uncertainty and difficulty in organising its workforce concerning this position until the case would be resolved. Although the grievor assures the Board that she would be able to attend in the future, such assurances are not binding, as the grievor is still encumbered with commitments to another job in California where she continues to reside. Weighing all the evidence and competing interests, the Board hereby confirms its unanimous ruling given orally at the hearing that an adjournment ought not to be granted in this case. Accordingly, the grievance is dismissed. Dated at Toronto, this 13th day of April, 1989: - Jane E. Emric v Vice-Chairperson 10