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Home My WebLink About1987-1635.Walls.88-03-10SETTLEMENT IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before \ THE GRIEVANCE SETTLEMENT BOARD Between OPSEU (Walls) Grievor And The Crown in Right of Ontario (Ministry of Correctional Services) Employer Before B. Fisher Vice-Chairman L. Robbins Member D. Wallace Member For the Grievor P. Lukasiewicz Course 1 Gowling & Henderon Barristers & Solicit&s For the Employer .I. Benedict Manager Staff Relations & Compensation Ministry of Correctional Services Hearing January 15, 1988 DECISION This is adischazyegrievance basedon innczentaJxenteeim. This Ecard accepts the principle that & order for the employer to invoke the attendancerecordinordertojustifyadischarqe,thererrmstfirstbea a2lminating incident justifyingthe reviewofthe record; TheBoatd relies on the principles state3 on page 12 of the Greeven award (Verity) 67/84. Itwasfurtherdecidedtobifurcatethehearingirrtotwoareas: a) first, todetemimiftherewas a culminating incidententitlingthe employerto reviewtheattmdame reaxd. Iftherewas no culminating incident then the grievancewouldbe allowed; b) if therewas a culminating incident, then to inquire into the attendaxe rfmrdto see if& dischaqewas justified. This Board alsaheld thattheculminatirq incidentcouldbe foundatany time after May 9, 1986 upto a~# including May 2.8, 1987, which &s the date of the grievor's discharge. The relevance of‘the May 9, 1986 date is that it is upon that date that the grievor received a written warning regarding his absenteeism. The only evidence present& atthehearingwasthatof the employer&roqh two witnesses, Mr. Kerry Clark, aSqxxintendentofthe correctional facility in whi& the grievor worked ard Mr. Nicholson, the Senior superintendent at the same correctional facility. On May 9, 1986, the grievor received the folimirq letter from his Mr. Clark, the Sx&erinterxlent. "Dear Mr. Walls, The attachedlistrepresents a breakdown of your absences since January, 1982 while being employed as a correctional officer with the Ministry of Corrsctional Services. In my opinion, a review of this record indicates your attendance is not satisfactory. -2- Although I cannot question the "bona fide&' of your frequent absences, I mustemphasize to you that your continued absences fromduty notonlycaused constant staffingproblemsbutwereafinancialburdentothe emplayer. Youhavebeencounselledandadvised in writingaboutyourlwel of absekeeismonseveral .~ occasions. IftheMinistrycanassistyou in establishirqandsaintaininganacceptableattendance rewti, please donothesitate'to contact the undersiqned. Hmever, this letter will serve as a klarning that your attendance must iqxove to a satisfactory level and I therefore caution you that your attendance will be monitoredonamo~ybasisandreviewedquarterly. Iimstremindyouthatifthenecessary in!provemntisnotforthcoming,youcouldbesubjectto further review and, if necessary, subsequent action which could potentially lead to the termination of your services. Thiswarningshouldnotbeconsidereda disciplinary action.~~ This letter, whichwasmrkx3 as exhibit #2 atthehearinq, is really a substitute letter to an earlier letter dated May 9, 1986. lhis earlier letterwasmtmadeanexhibitkecause itwasa subjectmtterofa grievance which was settled by virtue of the replacement of the original letter with the above mentioned substitute letter. Following the May 9, 1986 letter, the grievor's attendan ceilqmved dramatically for the balance of 1986. If one eliminates an absence in Septemberduetosurgery,whichbothpartiesadmitshouldnotbecountedin determinkg his absenteeism, then the g-riwor's record for the balance of 1986 was better than the institutional average. The institutional average was base3 on conpring the attendance record for other comectional offi- in the sane facility for the same period of time. However, for sme inexplicable reason, the grievor's attendance record deteriorated rapidly frm January to April, 1987. Euringthispsriodof -3- time the grievor was absent for 16.0 credits whereas the institutional average, excluding long texm absences for the same period of time, was only 4.5 credits. Onecansee, therefore, thatinthe4mnt&paricdcommcing January 1, 1987, the g-riwor's attendance recoti was almost 4 times worse than the average. l%emdisputsdwidence of the employer irdicatssthatonMay19, 1987, the griworhadamaetingwith seniormnagemsnt, includ.i.rgMr. Clark, andwas askedtcprcvide anexplanationastowhyhis rate of absenteeismwas sc high for the first months of 1987. The grievor was unable to provide any explanation and sixply said that he had no ccntrcl ever his being ill. He therefore could provide no specific reasons for his absences and could provide no assurance that he muldnot continue tc be absent tc the sane degreeinthefuture. It is the employer's position that the culminating incident that allmed themto reviewthe atterdance recordwas the frequent absences inthepericd of January to April, 1987. The employer further states that another culminating incident was the employee's inability to provide a reason or rationale for his absences in theMay19thmeeticg other than the fact that he was ill. 'Iheuniondoes not sqiouslydisputethatthe absences theisselves canbe a culminatingincidentinanabsenteeismcase,buts~lysaysthat4months is too short aperid oftimeto assess a record and rather one should look at the 12 month period prior to the dismissal. When one looks at the 12 month period, the average rate of absenteeism is substantiallylmer and more or less ap&ximtes the institutional average for that period. -4- The union also takes the position that the grievor's failure to provide any specific reasons for his absemes cannot,initself,beaaAminatizg incident. This Boardhas nohesitation in fir&ngthatina case of innocent abserheeisan,theactualfrequencyofnxentabsemes can,initself,bea ctiminatingincidentaslongastheemployerrespondspmmptly. Inthis particular case there was a serious deterioration in the grievor's attendance after almost an 8 month period of satisfactory attendance. The employer reqnndedprmptlytothese wnce?ms and heldameetingwithina reasonable time framtobringtheseconcemshometo theemployee. The Board, therefore, finds thatinthis case, thehigh frequency of absenteeism in the pericd from January to April, 1987, in itself, constitutes a w.lminati.rq incidentwhich justifiedthe employer's action in reviewing and relying upon the grievor's overall attendance record. Nonrally, once the Board reaches its decision, we would order that the case be rewnvened sothatwecouldhearevidence astotheg-rievor's previous atterdance record. However, because ofthenatxre of theletterof May 9, 1986, this Board feels that it would not be of any use to actually look at the grievor's attemlance recoti. This Board finds that on the basis of the May 9, 1986 letter, which must be remn&redy prcducfxl as a result of the settlementofthe grievance, the agreemnt between the parties was that Fr. Walls would not be discharged if his atterdance was a problem follow- May 9, 1986 but rather, prior to discharge, some lesser action would be taken by the employer. The Board i I -5- reaches this decision on a careful analysis of the 4th paragraph of the May 9, 1986 letter which states as follcws, "I mustremirdyou that if the necessary iqxwraaentisnotforthcoming,youcouldhe subiecttofurther reviewand,ifnecessarv, r to the termination of vcur serkces." It is clear from review of this wording that the resolution of the grievance want that the grievor was entitled to receive scme sort of %ubsequent action" before he would ke terminated. The employerwouldhaveusbalieve that this letter meant that no further warnings were necesary andthatthe %ubsquent actiorP cculd include termination. However, this Bafd finds that ifthatwasthe employer's intent, thentheywouldhavewrittenthis importantparagraphinadifferentmannersoasto~itclearthatif improvement was not forthcxmurq, then %ubsequent action" cculd result, including tennimtion. In otherwcxds, bymittirigthewo?A %ncluding" and adding the words %ould potentially lead to" the letter makes it clear that the next s@ge of the %ubseqentaction~ wculdhs somathingotherthan termination. I should addthattheemployerobjectedtotheunion's attempted intrcduction of the initial May 9, 1986 letter on the ground that thesubstitupadletterwascreatedasaresultofasettledgrievance. Union counsel initially sought to admit the d ocmentas aguide tc interpretingthe substituted letter. Ultimately both parties argued that themaningofthed ccmentwas not ambiguous and therefore no sxternal evidence was put forward by either party as to the meaning of the z .c y^ -6- substituted May 9, 1986 letter. Itwouldtherefore be futile to reconvene thepartiestohear any further evidence on this point. Moreover, the possible interpretations of this letter were fully and ably argued by both parties at the hearing. Therefore, theemployerisestopped frcmncwsayingthatitcanteminate based on the reccrd, when in fact it prmised in theMay 9, 1986 letter, that it would not terminate until it tcok %ubsequent actiorP. The employer aqued that the tezm %uhseguentaction" could include the meeting of May 19, 1987 and since that took place prior to tennination, the May 9, 1986letterhad!Jeencompliedwith. This Board, hcwever, finds that the wording of thisletterdcesnotsuppxtthatintelpretationandthat %&sequent action" must have meant some sort of action in the nature of further warnings or terms imposea on Mr. Walls. Included in the ccncept of %e&sqient action" may have been the reguirement of a medical examinaticn by the employer, the imposition-of specified attendaxe requirementswera limitedperiodoftime,afinalwarningcontainingaclearthreatofa ditissalorothersimilar actionbutwhateverthat "Nbsequentaction" had tobe, itcouldnotincludedismissal. Therefore, wenifthe employerwereto intrcducethe a ttendancereco~to the Bard, and waif we were satisfied that it was the Worst possible attendancerecordthatthisBoardhadwer-,wewouldnotbeina position tc uphold the dismissal because the employer did not ccnnply with the terns of the settlement of the previous grievance, namely, the substituted letter of May 9, 1986. In summary, this Beard finds thatalthoughtherewas a culminating incident which would entitle the employer to review the entire attendance record it -7- is estopped fromdismissing the grievor on the basis of that attendance recordbecause it is contractuallyboundto take same preliminary action prior to dismissal Which it did not do in this. case& In otherwords, wehavebeenaskedtodetermine Whether in fact there is a properculminatingincident. Wehavefoundthatthereisaculminating incident Which Would entitle the employer to take subsequent action as per its May 9, 1986 letter, but there is not a culminating incident Which Would enable the employer to terminate Mr. Walls. This Board therefore orders that the grievor be re-instated effective May 28, 1987 with full rxmxnsation for all lost Wages and benefits and no loss of senority. This Board remains seizedof jurisdiction inthe went that the parties'areunable to agree as to the terms of axqxnsation. Ihis Boardwishes tomake it clear to the parties that the re-instatement of Mr. Walls innowaypreventstheemployerfrcrmnwinstiMing~~~ subsequent action, short of dismissal of course, that it wouldhavebeen free to do When it properly reviewed the grievor's a tizrdance record. in May, 1987. Dated -at.!ZORONTO this 10th day of MARCH, 1988 Barry B. Fisher, Vice-Chai- &y-P& ,I L. ROCCIi'?!s, ME:~IBER 7- D. WALLACE, MEMBER