HomeMy WebLinkAbout1987-1099.Ross.88-08-04.- ,_
I ONTAPlO EMPLOYES DE LA COURONNE
CROWNEMP‘OYEES OE“O,,i~R10
GRIEVANCE CQMMISSION DE
SETTLEMENT REGLEMENT
BOARD DES GRIEFS
Between:
IX THE IK4TTER ‘OF AN ARBITRATION
Under
THE CROW EMPLOYEES COLLECTIVE BARG.;IN:ING ACT
3efore
THE GRIEVASCE SETTLEMENT BOARD
1099/E?
OPSEC (G. Ross)
Griever
and
The Crown in Right of Ontario
(Efnistry of Correctional Services)
Employer
Before: R.L. Verity, Q.C. Vice Chairman
I.J. Thomson Member
H. Roberts Member
For the Grievor: P.J. Lukasiewicz
Counsel
bowling B Henderson
Barristers & Solicitors .-
For the Employer: J. Benedict
Manager
S:aff Relations and Compensation
b;inis:ry of Correctional Services
Hearings:
DECISION
.
:
The grievor, Gail Ross aged 38, is ~a?. employee, with 1’.
approximately 8 years seniority as a Correctional,Officer at the
Toronto Jail. tier employment was. terminated fipril. 1.4, ,1,987 (ef,fe~ctive .
April 28) for reasons of excessive innocent absenteeism. Me..Ross ,-
seeks reinstatement with full remedial redress.
.The issue is whether or not in these particular circumstances
the Employer was entitled to discharge the, grievor for innocent - . . ,: .
absenteeism. It is acknowledged that this is a nonidisciplinary
matter’,. and that the absentee,isin wasp for legitimate medical reasons.
The substance of the :Employer”s complaint- is that because of ill
health, the grievor was incapable of regular and- consistent attendance -
at work,, and therefore was unable perform her part of the employment
relationship. The grievor’s irregular attendance at work in recent
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years has caused inconvenience, ,added expense and disruption to the
efficient operation of the Toronto Jail.
The Toronto Jail is a maxim&urn security institutis on wh ich
employs some 225 classified staff and 40 unclassified staff, and
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houses in excess of 500 inmates. Essentially; the grievor’s job as a
Correctional Officer involves the care, custody and! c~ontrol of ‘inmates
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incarcerated and awaiting trial or serving sentences-. .
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The grievor was on Workers’ Compensation benefits for ;L’5
days in 1984. However, the Parties are agreed that the grievor’s
attendance did not become a problem until 1985. In 1985, MS. For.5 was
absent on account of illness on 10 occasions for a total.of 134 days.
Similarly in 1986, she was ill 106 days on 13 separate occasions.,,
During these two years, there were reoccurring intermittent and
prolonged absences.
In 1987 until her termination of employment on April 14, the
grievor was absent a total of 15 days. Eight of those absences
occurred during the month of April.
The Employer submitted attendance record statistics to
demonstrate the average annual absence for the Jail’s Correctional
Officer category as follows:
1563 - 8.92 days 1984 - 9.73 days
1985 - 11 .49 days
1986 - 11.20 days
1987 - 8.18 days*
*Pro-rated for the year on
the basis of first quarter
statistics
The grievor’s attendance record first attracted the .
attention of the Attendance Review Committee in early 1985. On E?arch
12, 1985, Attendance Review Committee Chairman and Deputy
Superintendent h’. L. Jones wrote the grievor to the effect that her
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attendance recor’d needed improvement. In that lette,r sh,e was advised
: . that she had then accumulated a total of 7 sick day credits and that
her attendance would be monitored monthly thereafter.. I
In 1985, the Employer decided to request a mandatory medical. .: ,I) . . .;‘- examination under Article 51.9 of the Collective. Agreement.” On ’ , .
December 6, 1985, Deputy Superintendent Jones~.‘interviewed~ the grie~vor
and ascertained that she was experiencing serious faniily~ problems. On
the strength of the ‘gr.ievor’s firm commitfment to ,imprOVe attendance, -. .~ ._ i.. ”
the mandatory’medical.‘,examination was waived. :~ ‘. .,- ( - ._. : I ;1, ._. ..* .
In early 1986, the grievor’s continuing absenteeism was : I ,;:
again brought to -her attention. ~ Them grievor wrote to”Deputy , . .
Superintendent Jones as follows~ onMarch ,13,‘i986: . i -
I received your letter dated .Feb: 17/86, hand ;
delivered~on Mar..,13 dealing with your claim that 1
my attendance is unsatisfactory., ;,.- . . . . _, I _ +,y I would refer you to the Collective Agreement
between OPSEU. and .the PROVINCE OF ONTARIO,;1 in
parti.cular the articles providing. for s’alary
recovery when staff are not able. to per.form their duties due to illness.
I wish to state that I cannot predict future
.il’lnesses that may, prevent .my attendance,. Nor can
I guarantee that I will be able to reduce my use of attendance, credits. _I i.
I will make’use :of my rights ;under the ~~
Collective Agreement, of which the &vernment is a
signatory, when ~1 am unable to work due-to
illness.
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Further harassment I receive due co my
limited absences will not be accepted and I will
refer all these instances to my Union’s solicitor.
,3n March 26 the Deputy Superintendent advised the g r lever
that he intended to proceed with a mandatory medical examination.
That examination was conducted by Dr. E. Sayani in June. Subsequently
on August 4, 1986, Dr. Sayani provided the employer with the following
positi, ve medical report:
Ms. Ross was seen on June 23, 1986 for a
complete medical exaxination. After conducting
the examination I have come tom the conclusion that
in her present state of health Ms. Ross is able to
meet the requirements of her job as outlined in
your letter of June 3, 1986.
In my judgement, the medical problems which
required her to take a considerable amount of sick
leave in the past have now been resolved. Of
course, if any major medical problems develop in
future her ability to continue in her job would
have to be reviewed.
This report was delayed because of a
misunderstanding that resulted in lab work not being processed in time.
I trust that this report is satisfactory; if
you require any further details please do not,
hesitate to contact me.
Superintendent N. T. McKerrell and Deputy Superintendent
Jones met with the grievor in the presence of a Union Representative
on August 21, 1966. The Employer advised the.*grievor of the contents
of Dr. Sayani’s report. Superintendent McKerrell testified that he
stressed the importance of regular attendance and that failure to
achieve proper attendance in the future would result in termination of
: at this meeting that she would undergo minor surgery at-+om,e future
date. The Superi'ntendent's'expectations regarding attendance were _I.
confirmed in 'writing. i..
to six weeks off work for convalescence purposes. Apparently the
grievor assured~.the Supe.rintendent that this surgery.would al,leyiate
her medical problem. According to the Superintendent's testimony, ,the
grievor stilted thatif she had further illnesses in the. future, she
would resign. Superintendent .McKerrell-accepted that position and
confirmed the conversation in-a letter to the grievor dated October
14.
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In 1'987, the~grievor' was absent due to illness,four
consecutive days in February, three days in March (a one-day and a two
day absence) and eight consecutive days in April commencing April 3.
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employment. Mr. Jones recalled that the grievor, advised Management -
The grievor was admitted-to hospitai on-September 24 for ,
minor surgery and returned-.to work on ~Mohday, September 29: On :~.
October 14, 1986, the grievor advised Superintendent McKerrell tha!
she was booked for major surgery on October 29 and would require four
The grievor's failur~e to report for work On April 4 and April 7
respectively resulted in the filing of two separate'.incident reports
by Shift Supervisors. .-
The Employer's decision to discharge the grievor was made by
Superintendent McKerrell subsequent to the filing of the two incident
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reports. According to his evidence the Superintent gave instrxtions
to some employee, whose name he was unable to recall, to schedzlc a
meeting with the grievor. Mr,. McKerrell also testifi,ed that he
satisfied himself that the grievor was unable to attend such a
meeting. Although a meeting was scheduled, no written notice was
given to either the grievor or to the Union. Moreover, in her
testimony the grievor did not recall any request to meet with the
Superintendent.
In cross-examrnatlon, the Superintendent acknowledged that
his reasons for dismissal were essentially two-fold, namely:
1. That on the basis of the grievor’s past attendance
record, her health was “too brittle” to anticipate regular
and consistent attendance at work.
2. The grievor’s letter of March 13, 1986, whereby she
could not .guarantee a reauction in the use of attendance
credits.
The Superintendent acknowledged that he did not review the
grievor’s personnel file but relied upon his memory of her attendance
problems. In the Superintendent’s own words,.*the decision to
terminate the grievor’s employment was a “judgment call” on his part.
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The Employer called no medical evidence, other than the .ii’ .I
mandatory medic,al report of Dr. Sayani dated August 4, 1986. That
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report gave a favourable prognosis for future attendance. However,
subsequent events have established otherwise. The Employer’s position
ins that it is reasonable to infer in these circumstances that the <. . ,, ,.
grievor’s excessive absenteeism would continue in the future. . ‘ .~ _
The Union filed two- medic51 ,reports:, one from Dr. Louis ._ _ ‘.~Z ”
Burgener a speciplist in, Obstetrlics and~‘Gynaecology dated: Fqbruary 7, ._. _
1988 (Exhibit 11) and a second from, the, grievor’.s f’amily.physician
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Dr. Catherine.‘Flowitt dated February. 10, 1988. (Exhibit lo).. ,,: The 1 .;.
Employer agreed to the $ntr>duction of these ,medical ‘re&rts without 1 .‘.
the necessity of calling either physician. . i
Dr. Burgener sati Ms. Ross in the fall of .1986 as .a result of
severe menstrual problems. The report establishes that the ~grievor
underwent a D & .C procedure on September 24, 1986 and subsequently a
hysterectomy on October 29. In Dr:. Burgener’s ,opinion; these
procedures rectified the menstrual problems and he described her
prognosis as ‘excellent’. The Employer does not challenge this
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report.
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Dr. Flowitt’.s letter detailed the grievor’s medical history
from June 13, 1984 to’Apri1 15, 1987. A variety of medical problems i ,.
caused the absences including sinusitis, urinary tract infections,
gall bladder surgery, abdominal pain and diarrhea, influenza, cardiac
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anxiety and gastritis, to mention but a few. Apparently, ttle reason
for the grievor’s absence in April 1987 was due to “spastic colon”.
In particular, Dr. Flowitt’s medical letter of opinion cited
two current medical problems - hypercholesterolemia and
hyperglycemia. In that regard, the letter reads as follows:
There are two ongoing problems at the present
time: an increased cholesterol level and an
increased fasting blood sugar X 1. These are
problems that require further investigation in
order to determine their full significance.
However, should they prove to be persistent, they
can be successfully controlled through diet and
medication. Once again, therefore, there are no
physical problems present that should, in and of
themselves, prevent Gail from performing her
duties.
As to prognosis for regular attendance in the future, Dr.
Flowitt writes:
There is nothing that should prevent her from
regular attendance at. her pOst, whether rotating
shifts or not.
The Employer contends that it had just cause for discharge
and that the prognosis for future attendance, whether based on past
poor attendance records or on the post-discharge medical reports
submitted, remained bleak. In particular, Mr.” Benedict ma’intains that
the medical report of Dr. Flowitt is of no assistance. Alternatively,
Mr. Benedict acknowledged the possibility of reinstatement but urged
that stringent conditions be attached.
‘... :I
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The thrust of the Union’s submission is that there was n3
just cause for dismissal in .the first place’ on, the evidence then
available to the Employer. Mr.’ Lukasiewicz argued that- on the
uncontested medical prognosis for future attendance the grievor must .z_ ; . ‘,
be reinstated and compensated for all lost wages”and benefits.
1 ‘.
In cases of innocent absenteeism, the Employer’ must sa’tisfy
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two requirements to justify discharge: .
1. The grievor’s past record of excessive absenteeism.. - ~.
2.- ). That the grievor would be incapable of regular-
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attendance in the future. ,.
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The Employer contends’ that the April’ 1987’ revcew of the ’
grievor’s attendance record resulted from a culminating incident or .
incidents. The Union did not challenge that allegation. Accordingly,
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the Board finis that April .1987 was an appropriate- occas~ion ~to review
the grievor’s attendance record. IioweLer, it .is’ worth noting that‘ in
the Judicial Review of t’he Waltraut Greeven, 67/94 Decision, also’s
’
case of innocent absenteeism, the Ontario Divisional Court made the
following comments at p. 2 of the endorsement, released February 13,
_. 1986: _.
In our opinion, proof of a culminating incident
was not a condition precedent going to
jurisdiction in dismissal for just cause. It was
an essential element in the.issue of dismissal ‘for
,
just cause herein that the employer had to prove
and the Board treated it as such. The distinction is similar to tt,at discussed in Re Ottawa
Newspaper Guild, Local 205 and the Ottawa Citizen
(1966), 1 O.R. 669 at p. 660.
On the issue of the grievor’s past attendance record, the
Board is satisfied that the record was indeed excessive, in the sense
that it greatly exceeded .the average for the Correctional Officer
category at the Toronto Jail. The Union does not seriously challenge
that allegation.
The real issue is the prognosis for regular attendance in
the future. It is quite understandable that the Employer would have
renewed concerns regarding the grievor’s inability to attend .work in
April, 1987 in light of the events following the positive mandatory
medical report in August 1986. Similarly, it is understandable that
the Employer would have concerns with the tenor of the grievor’s
letter of March 1986 whereby she made it clear that she could not
guarantee regular attendance in the future. However, by April of 1987
that letter was somewhat staledated. In addition, the evidence
established that the grievor’s letter was a form letter prepared by
the Union. In our opinion, the form letter can only be- viewed as
antagonistic and makes no attempt to address a legitimate Management
concern. . .
A significant factor, we think, is that in April 1987 the
Employer had no knowledge whatsoever of the grievor’s medical
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condition and made no reasonable attempt to ascertain the nature of
her illness, or-whether she was experiencing personal difficulties,. >. '
In sum, there-was no -meaningfulattempt to interview thsgrievor in
the presence of Dnion'representation, pr.ior.to the~.,decision to,, r_' .'.-' I
dismiss. In our opinion, the grievor's services ought not to havei
been terminated in the absence of a medical opinion or evidence of
serious domestic or personal-difficulties.'
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Obviously there was.a problem in .T987 which Ranagemenf could
not' ignore: IA th&se.kirkumstances the grievor should have been
interviewed in the'pr~esence ~of Union representation. . De.pending on.the
-, results’ bf'that interview,. the Employer could have order,ed a second
c I '. mandatory medical examination or' 'alternativ~ely .placed {the, gri.evo,r.on a
lengthy leave-of-absence. There is, of course, no .justif~icati<oo to
introduce the concept of corrective discipline into cases of innocent
: I absenteeism.
-. .a
Although .admittedly-there is some difference of opinion on
."_ the point, many Arbitrators requi're the Employer to.bear the onus of
establishing the prognosis of rkg’ular attendance in. the-,-future.. See
for example: General Tire Canada Ltd. (1982), 7 L.A.C. (3d) 238
(Kennedy); Atomic Energy of Canada Ltd. (Chalk River Nuclear
Laboratories) (19.821, 5 L.A.C. (3d) 248 ('Saltman) and Victoria
Hospital London (1979’), 24 L.A.C. (2d) 172~(Weatherill).
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II? some cases, the absenteeism record itself may rfiisr.: an
inference in favour of the Employer's position, unless the con:rar;' is
established. See for example, He Niagara Structural Steel (St.
Catharines: Ltd. and U.S.W., Local 7012 (1978), 18 L.A.C. (2dl 365
(O'Shea).
:In this case, the Union has introduced evid,ence by way of
written medical opinions to rebut any presumption of future similar
behaviour. On the strength of that medical testimony there is no
apparent medical reason why the grievor cannot now attend work on a
regular or consistent basis. On the evidence adduced the prognosis
cannot be described as bleak. Dr. Flowitt's medical opinion satisfies
us that the grievor's two ongoing medical problems are controllable by
medication and diet.
The grievor is a long service employee and it is acknowledged
that her work record while in attendance has been satisfactory. On
the basis of the favourable medical prognosis as to future attendance,
the Board is satisfied that KS. Ross should be reinstated and given a
further opportunity to demonstrate regular and consistent attendance
at the workplace.
In our opinion, the grievor is entitiled to some compensation
but not to full compensation by virtue of her past unsatisfactory
absenteeism record. In these circumstances it would be wrong for the
Board to assume that the grievor would have been at work on a regular
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basis between, the termination of her employment and the date of this ' . .,
Award. Accordingly, we leave it. to the parties.to determine the
appropriate quantum of compensationpayable. The. failure on the part
of the-grievor to n~otify the Employer of the,reasons fo,r her absence
in April 1987 should~.be taken into account,,when determining
compensation. We retain jurisdiction to hear further evidence and
submissions,, if necessary, in the event of failure to Teach an
agreement on 'compensation.
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During submissions, 'the Parties presented numerous proposals
for terms and conditions in the event of reinstatement.
The grievor shall be reinstated. Apart from the issue of
compensation, the reinstatement shall be upon the following terms and
conditions:
1. The grievor shall. be reinstated to employment as a
Co~rrectionai Officer 2 at,the Toronto Jail effective two
weeks following the. issuance'of this Award.
2. There shall be no loss of seniority or other benefits . .
resulting.from the dismissal on April 14, 1987.
3. Upon reinstatement, the grievor shall not incur any
absenteeism record in excess of the average record of
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absenteeism for Correctional Officers at the Toronto Jail
for a two year period following reinstatement. Failure to
meet that standard during each of the first or secon? yea:
following reinstatement shall result in immediate dismissal,
subject, of course, to the right to grieve.:
4. During the two year period, the grievor shall provide a
medical certificate for any absence in excess of two days
which shall specify the medical reason for all such
absences.
DATED at Brantford, Ontario, this 4th day ofAugusT, 1968.
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i ,,> -- P--
d 4y .+
R. L. VERITY, Q.C. - VICE-CHAIRRrAK
/.
I. J. ‘&&ON - MEMBER
"-$w-
\, H. ROBERTS - MEMBER