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Home My WebLink About1987-2366.Singh.88-07-22ONTARIO CROWN EMPLOYEES ;c- mm GRIEVANCE SETTLEMENT BOARD Between: 2366/07 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before <THE GRIEVANCE SETTLEMENT BOARD Before: FQr the Grievor: For the Emplover: - and - Tihe Crown iz Right of Ontario (Mir?istry of Transportation! 9. Fisher 3. Anderson G. Peckham Grievor Employer Vice-Chairman Member Member Hearinas: DECISION This arbitration involves a non-payment of two days' wages to the grievor for the reason that he allsgedly failed to advise his employer that he was ill on the two days in question.‘ Oral reasons wars given at the conclusion of the haaringbutthe baard indicatadtotheparties thatwritten reasons would follow. Tne first witness for the employer was Mr. Mcore, the grievor's dirsct supervisor. The grievor caix under Mr. Moore's supervision on August 4, 1987. At that time, the grievor reported that he would not be into work the nextmozllingashe'hadadentalappointroentbutthathewouldattendtowork inthe afternoon. CmAqust5th, thegriavorphoned intheafterncx3nan3 SpoketoMr. Mooreand indicatedtohin~, acmrdingtoMr. Moore's testimony, that the dental workwas extensiveandthathewouldnotbe in that aftamcon but that he would be in the nsxt day, August 6, 1987. Thegrievor did notsh~upnorphone in for Thursday, August6th or E'riday, August7th. Mr. Moore testified that on Monday, August 10th he got a phone call fram the grievor's wife who indicated that their phone was not working andthatshe forgottophone in ontheprevious Thursday and Friday. Later onAugust10th, the grievor calledMr. Mccre and indiCatea thatthephone was not working and that is why he forgot to call but that he was still sick andwouldnotbeaziningin. Mr.Mwre saidhetoldthegrievor inthe telephone conversation of August 10th that he was not going to be paid for theThursdayand~idaybecausehehadnotcalled intoreporthisillness. That is the 15313. of Mr. Moore's involvement with the case. Page 2 The sewndwitnese forthe employerwas CatherineRogers who-Mr. Sir@% supervisor anmmth follming the incident. She irdicatedthatshehad receivedaphonecall frmthegrievor inthe firstweekof octoberatwhich timheaskedforhertoserrlhimhispaystubs. Thegrievorwaspaidby direct deposit andpay stubs indicatingthevariouspqmntswerenormlly delivered to the arrployee at the office. Althou#~ the widencewas not clear on this point, it seem that the normal practice when someone is sick is to have the pay stubs mailed to him but Mr. Moore previously testified thatwhenhewantezltomil thepaystuts to the grievor, he was told by his sqxrvisornotto do so. After receiving the phone call from the grievor, MS. Rcgers imLic.atedthatsheptthem in an envelope& delivered themto a Mr. Claude William-Soobrian who was apparently a colleague and a friend of the grievor. Mr. Soobrianwasmtcalledas awitness. ~egrievor'sevidencedifferedon-material pointswiththatof Mr.Mcore. Primarily, he inlicatedthatonthea fXmmconof&gust5thwhen hephoned in, hesaid, "1 feel verysickarrl Imynotbe in inthenext few days.~ If I don't shaw up it's because I was sick." Mr. Sir& testified he did not tell Mr. Moore thathewouldba intowmkthe next day, rather he toldMr. Moore thathemiqhtnotbe intowork. ;tshouldbe not&that the grievor also testified that after he told Mr. Moore on August 5th that he mayndcameintoworkforthenextfewdaysandshouldbeasslrmedtobe sick if he did so, that Mr. Moore said, "o.k.". The grievor interpreted Page 3 this mtofhis suprviecrtomeanthat itwas not necessary to phone in sick for the balance of the week but only to call in again on Monday, which Mr. Sirqhdid. Mr. Sir@ related the incident of August 10th soaewhat differently than Mr. Moore. Mr. Singh eqhasized the fact that Mr. Mcorewas abusive to him onthenomiqofthe1OthtithatMr. Mccreacz~~&Mr. Singhof inproperly taking sick leave wfien he was not really sick. Mr. Singhdenies that hewas evertoldbyMr.MccreonAugustlOththathe was going to be d&ad two days' pay. Mr.Singhalsodeniesthatheever receivedanypaystubs in&toter and in fact was insistentthathe onlygot pay stubs inmid-November orlateNove&erwhichwas at the same time that he received a letter fmanMs. Hcgers. Uponreceivingthosepaystubs,he did an analysis of his various payrents and conclud&i that he had been short c!llanged seven days. Hehanded inthisanalysisa fewdayslatertothe payroll departmentanda fewdays afterthat, aroundmid-Dece&er, he receivedam frcanthepayroll dep&nentconfinningthati.ndeedtheyhad short changedtifiveoutofthesevendays. However,Mr. Sjnghwas still wncemedaboutthetwodays inguestionso onappn3xinatelyDecember14, 1987 he spoketoMr.MartinwfiowasMr.Moore~s supervisor. Mr.Martin said hedidnatlcnawwhy~.S~wasnotpaidthetwodaysbutthathewould have an answer in a fewdays. HhenMr. Singh returned to work on December 29, 1987 he went to talk to Mr. Martin about this matter but discovered that Mr. Martinwas onvacation. The first opportunityMr. Singhhadto talkto Mr. Martin following that was on January 5, 1988 &an Mr. Martin told him for the first time thattheM.inistqwas not intendingtopayhim for the Page 4 two days. Mr. Singhthenpromptly filedagrisvance two days later. Mr. Singh said that he did not get pay stubs from his friend in Cctober but rather received tim she&s which he cmpleted and returned to his employer. This evidence differs frmthatofbs. Rogers. Hmever, I note that Mr. Scobrian, the amrier,wasnutcalledas awitness andtherefore, there isno evidencetodiqmtethatofMr. Sirgh's inwhichhe saidhedidnot get the dmmen tsMs. Rcqers said she senttohim. This case rests largely on credibility and for the reasons that follow, this Board firds that&. Singh's evidercaistobabelisvedwhere it conflicts withthatof the erq~loyer'switnasses. 1. Itsems sometimas that the actions of a person speak louder thanhis words and it is clear frcanMr. Singh~sactionsthathewasverycqnizantof " the relevant Ministry directive on phoning in to report an absence. Tu quote frmariamsrarxlum subinittedbymnagemnt, thepolicygces as follows, "If youare umble to rqmrt to work, youmust tsle#ona your imnediats supervisor, (or have scmaone call on your behalf) explainirqwhyyouarsabsentandwhenyouexpesttoretum. Your supervisorshmldbaadvisedofycur absenceasw.rlif3stas possible so thatworkmaybe rs-s&sduled. Inn0 case, should your supervisorbe notifiadlatsrthan omahcnx aftaryournonnal start time." Mr. Sin& adhersdtothispolicyonAugust 5thwhenhephor~~l inthe aftemaanto saythathewouldnotba inardals~adhe?xdtothepolicyon August 10th when not only he, but also his wife, called in. It seems highly unusual that a nkan who obviously knew the letter of the law and follmsd it with precision would, for scmxa inmplicable reason, ignore the provision for two consecutive days. Mr. sir@ was clearly not abusing the sick-leave Faqe 5 systmonthatparticularoccasion as he later submitted amedical certificate toccver thesedayswhichthe employer, in this particular case, dcesnotdispute. 2. Acxmdhgtothe anployer's testiimny,Mr. Sitxgh!a?ewatmuthis two days' docked pay on ?+ugust 10, 1987 but chose not to do anything about it until Janumy 7, 1988, almost 6 mnths later. Hohever, on the other hand, itisclearthat~.S~tooksomequiteunusudls~topursueother concems that he had includingmeetinqwith the secretary to the Deputy Minister and sendi& lettes off to various people. It seem inccnceivable that a man, who is so agnizantofhis riqhts and sowillingto pursue rem&es, woulddonothing for sixmcnthswhenhe felthehadbanshort changedtwodays8 pay. Rather, it seems quiteconsistentwithhis character thatassoonashefoundoutthere~aproblem,wkichwouldbeattheend of Novanber, he pursued it with diliqexe and filed the grievance as soon as he realised thatmamgemantwas my not paying him for the two days. The employerccntestedthisnk3tternot only onthemeritsbutalsc on the questionoftimeliness. Hmever, giventhe firdings of facts setcutabve, it is our findinq that Mr. Singh was first aware of the employer's position onJanuary 5, 1988 andthathe respOnaeaquicklythereafter. Althoughhe was amreofthedenial ofthetwodays'pay as early asNw&r, hequite reasombly assused that it was simply an error on behalf of the employer and therefore.usedan infonralmsansof aeekirqto solvethispmblem, tich to samedegree,mssuccessful. This Boarddoes not feel thattheqrievor should be peMlized for attemptirxq to utilize an informal prccess before filing a formal qrievance an3 that mnaqement was clearly not taken by Page 6 surprisebecausetheyknewwhenthey receivedhisnmm inearly Lkcenber 'chat he was questioning the deductions and they did not give him a p-r response until Jan~a?~y 5, 1988. Therefore, this Em& finds that the grievanazistimelyandthatthegrievor'swidenceis tobepreferredwer that of the employer~s witnesses and we find that the grievor did provide sufficient notification to his employer of his illness in accordance with the Ministry's policy. Therefore, this grievance is all~~andthegrievoristobepaidhistwo days' lost waqes tcigether with interest at 10% from September 3, 1987 to date of paymsnt. lbe date of September 3, 1987 is chosen because that is the pay date thatshouldhave includedhiswaqes for the days that he was docked. LQti at Toronto, Ontario this 22nd day of July, 1988. Barry B. Fisher, Vice-Chairman . .