HomeMy WebLinkAbout1984-0579.Raso.86-01-24Between :
IN THE WiITEX OF AN ARBITRATION
under
Before
THEGRIEvANcEmBaARD
CLJPE 767 (Frank Raso)
and
The Crown in Right of Ontario
(Ministry of Municipal Affairs & Housing)
Before: R.L. Verity Vice-Chainnm
S.D. Kab Member
G. Milley Member
For the Griever: T.Edwards
Spokesperson
CUPE 767
For the Fnployer: A.P. Tarasuk .
Counsel
Central Ontario Industrial Relations Institute
Jsnuary 3rd, 1986
Grievor
Employer
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In this matter, Frank Raso's employment as a Grounds-
man (classification - Labourer) with the Metropolitan Toronto'
Housing Authority was terminated effective 3une 25, 1984, for
reasons of innocent absenteeism. A Grievance was filed on 3une
27, 1984 alleging termination without just cause. The settle-
ment requested was reinstatement "to employment with Metro
Toronto Housing Authority" with full compensation for lost
wages and benefits.
The matter first came on for hearing on November 14,
1984. On that date, the Union requested an adjournment due to
its inability to obtain a current medical report from the
Griever's physician, Dr. H. M. Hernando. Dr. Hernando was un-
available because of personal illness.
On November 14, no oral testimony was introduced.
However,,the Board was advised by Union Spokesperson Tom
Edwards that the Griever first obtained full time employment
with the Ministry in February, 1973. In 3une 1976, the Griever
held the position of Senior Groundsman.
In November, 1979, the Griever sustained an injury
and was unable to return to work until May, 1980. At that time
he was assigned to employment as a Labourer because his job as
Senior Groundsman had been phased out in the interim. In July,
1980, the Griever sustained a second injury and was the recipi-
ent of Workmen’s Compensation benefits until his return to work
in September, 1982. Mr. Edwards alleges that the Employer
failed to keep its promise made on two separate occasions that
the Griever would be considered for the first vacancy in the
Senior Groundsman position. On February 15, 1984, the Griever
sustained a third injury and as a result his employment was
terminated in 3une.
After hearing submissions, thk Board granted the
Union’s request for an adjournment, and made the following
interim order:
“(1) The Union’s request for. an adjournment
of the proceedings shall be granted to
permit the Union to obtain an up-to-
date medical report from Dr. H. P.
Hernando, which said report should
contain the following information:
(i) A detailed statement concerning
the nature and extent of the Griever’s
present disability, if any;
(ii) An opinion concerning any limi-
tations upon the Griever’s ability to
perform the duties required of a gen-
eral labourer, or a senior groundsman
or any other position that might be
suitable. In that regard, the Union
shall forward to Dr. Hernando all
relevant job descriptions for his con-
sideration;
(iii) An opinion in the form of a
prognosis indicating the probable date
of the Grfevor’s return to work, in
the event that his injuries remain un-
stabilized.
(2,
(3)
(4)
(5)
The
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Dr. Hernando shall be requested to
prepare the medical report at the
earliest possible opportunity and in
any event to submit the report to the
Board no later than 3anuary 22, 1985.
In the event that Dr. Hernando is un-
able to prepare the medical report
within the time frame specified above,
the Grievor shall have the right to
obtain a medical ,report from another
duly qualified physician, and the med-
ical report shall be submitted to the
Board no later than April 12, 1985.
Upon receipt of the medical report, or
unless otherwise directed by the Par-
ties, the Registrar of the Grievance
Settlement Board shall reschedule the
Hearing before this Panel of the Board
to a date to be agreed upon.
At this time, there shall be no order
made regarding the costs of the ad-
journment. However, the Board re-
' serves the right to consider the ef-
feet of the adjournment in the event
that the Griever is reinstated and is
in any way compensated for lost wages
and benefits."
above Order was issued orally at the Hearing on
November 14, and was subsequently prepared in written form.
Although Counsel for the Employer received the written Order in
a timely fashion, the Union alleges that it did not receive a
copy until 3anuary 31, 1985.
The Hearing was reconvened on 3anuary 3, 1986, at
which time the Employer presented two preliminary objections.
No oral testimony was adduced on either preliminary matter.
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(1) The Union contended that the Griever had recov-
ered from the February 14, 1984 injury and was capable of re-
turning to employment as a Senior Groundsman, but was incapable
of returning to the job of Labourer. The Employer's objection
was to the effect that the Union's submission constituted a
change in the grounds of the original Grievance.
The issue for determination is whether the Grievance
is sufficiently broadly based to permit reinstatement to a pos-
ition other than the position held by the Griever at the time
of termination. As indicated previously, the Grievance Form
seeks a remedy of reinstatement to employment with the Author-
ity with benefits retroactive to the date of termination.
This Panel of the Board was not requested to deter-
mine the merits of a previous Grievance filed by Mr. Raso on
December 12, 1983, G.S.B. 30/84. In that matter, the Griever
alleged that he was unjustly demoted from Senior Groundsman to
Groundsman.
On the merits of the first objection, it is recog-
nized that Section 18(l) of the Crown Employees Collective Bar-
gaining Act gives the Employer exclusive jurisdiction to deter-
mine,
"(a) employment, appointment, complement,
organization, assignment, discipline,
dismissal, suspension, work methods
and procedures, kinds and locations of
equipment and classification of posi-
tions; and
(b) . . .
and such matters will not be the sub-
ject of collective bargaining nor come
within the jurisdiction of a Board.”
However, Section 19(l) of the Crown Employees Collec-
tive Bargaining Act confers upon the Board broad .~reqedial jur-
isdiction “to decide the matter” in a decision that is “final
and binding” after having given full opportunity to the Parties
to present evidence and make submissions.
In our opinion, the Crown Employees Collective Bar-
gaining Act confers the authority to reinstate the Griever, in
appropriate circumstances, to a position which may or may not
be the position held at the time of termination. A remedy,
where applicable, will of course depend on an assessment of the
evidence presented.
In passing, the Board notes that under Article 25.12
of the relevant Collective Agreement, the Parties have contem-
plated certain employment remedies for disabled employees. The
Article addresses a potential remedy which is not a right per
se. Article 25.12 reads as follows:
“DISABLED EMPLOYEES
Any employee who has become unable to do
his customary work to advantage having a
certified infirmity shall be given consid-
eration for work within his/her capabili-
tiesand qualifications.”
We do not agree that the Union is attempting to
change the Grievance, as alleged, by requesting that the Griev-
or be reinstated to the position of Senior Groundsman. In our
opinion, it is appropriate for the Board to consider evidence
relating to the issue of the Griever's capability and qualifi-
cations to perform the duties of Senior Groundsman. Once the
evidence has been presented on the merits of the Grievance
itself,.the Board would expect submissions from the Parties as
to whether the Grievor should be reinstated, and if so, in what
capacity.
(2) The Employer objected to the Union's intention
of presenting medical testimony subsequent to the Griever’s
termination. In the Employer's submission, the Union failed to
comply with the terms of the Board’s Interim Order dated Novem-
ber 14, 1984. Specifically, it was alleged that the Union
failed to produce a medical report from Dr. Hernando by Sanuary
22, 1985, or alternatively a medical report from another duly
qualified medical practitioner by April 12, 1985, which ad-
dressed the detailed terms of the Interim Order.
Dr. Hernando did in fact prepare a medical report
dated April 12, 1985 which reads, in its entirety, as follows:
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"TO WHOM IT MAY CONCERN:
Re: Frank RASO
Born on November 21, 1951
W.C.B. Claim #I451 7388
I have assessed this injured Worker today:
I find that he has physically improved very
considerably to the very state of well
being that he is now capable of returning
to his pre-accident job at this time.
Very truly yours,
HERNANDO MEDICAL CLINIC
per: H. M. HERNANDO, M.D."
Counsel for the Employer did not receive a copy of
the medical report until the end of July, and it was alleged
that it was not until September 24 that the Employer became
aware that the Union intended to rely upon the contents of that
report.
No adequate explanation was offered by the Union why
the terms of the Board's Interim Order were not met. The Board
finds it totally unacceptable that there has been non-compli-
ance with the Order.
The Un ion argued
timely objection to the fi ling of the April 12 medical report.
that the Employer failed to raise a
In reply, the Employer disputed that contention and raised the
issue of the Union's failure to request a further Hearing date
in a timely fashion. In sum, each Party found failure on the
part of the other to actively pursue the matter.
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The Board was advised that the Employer did not re-
ceive Dr. Hernando’s April 12 medical report from the Grievance
Settlement Board until July 31, 1965. The Employer felt that
it was incumbent upon the Union to seek.continuation dates, if
deemed appropriate. Accordingly, the Employer raised no objec-
tion at that point to the medical report, and the Union alleg-
edly relied on the Employer’s silence.
The Employer advised that it was first informed of
the Union’s intentto proceed, on the strength of the April 12
medical report; when continuation dates were sought by the Reg-
istrar of the Grievance Settlement Board on September 24,
1965. On that date, Mr. Tarasuk advised the Registrar (but
apparently not the Union) that the Union had failed to meet the
conditions of the Interim Order. On September 27, 1985, Dr.
Hernando submitted a more detailed medical report. On October
30, Mr. Tarasuk notified Mr. Edwards that the September 27
medical report was both irrelevant and inadmissible.
In short, the Employer takes the position that fol-
lowing the interim order, the onus of proof shifted to the
Union. However, the Board is satisfied that the ultimate bur-
den or proof in discharge cases as to the existence of just
cause remains with the Employer. The nature of the Interim
Order was to grant an adjournment upon equitable terms. The
Interim Order provided the Union with an opportunity, of which
it failed to take advantage. Naturally, the Board is still
required to determine the case on its merits. In that regard,
two requirements must be established - that the record of
absenteeism is excessive in the sense of warranting termination
of employment, and that the prognosis for future attendance at
work is unfavourable.
In cases of innocent absenteeism, Arbitrators must
assess the extent to which an Employee’s medical condition has
prevented and in the future will likely prevent that Employee
from fulfilling the employment obligation. Admittedly, there
is a division among arbitrators as to whether the Griever’s
medical prognosis is assessed at the date of termination or at
the Arbitration Hearing. This Board will hear the evidence of
Dr. Hernando concerning the Griever’s medical prognosis, but
will reserve on what weight, should be given to post, termina-
tion evidence.
As this Vice-Chairman stated in CUPE (Ronald Hart)
and Ministry of Municipal Affairs and Housing 74/84 at pp. 13
and 14:
“Generally, in grievance arbitrations the
issue for determination is whether discipli-
nary actions were proper at the time they
occurred, and events subsequent to that
action are irrelevant. However, in certain
cases such as acute alcoholism, it is by no
means uncommon for Boards of Arbitration to
consider related subsequent events to deter-
mine the appropriateness of the penalty
imposed. See Re Labatt’s Ontario Breweries
Ltd. and National Brewery Workers’ Union,
Local 1 (1978), 20 L.A.C. (2d) 66 (Brunner);
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Re Molson’s Brewery (Ontario) Ltd. and
;;;%t;an Union of United Brewery, Flour,
Soft Drink and Distillery Workers,
Local 504 (1979) 23 L.A.C. (2d) 392
(Adell) ; and the’Grievance Settlement Board
Award of Vice-Chairman Swan in OLBEU (Mr.
A. Saunders) and the Liquor Control Board of
Ontario, 252182.”
See also OPSEU (Dwayne Taffinder) and Ministry of
Correctional Services, 296/83 (Verity).
Vice-Chairman Gorsky considered the admissibility of
post-termination evidence for innocent absenteeism in OPSEU
(Lawrence Rupert) and Ministry of Correctional Services,
372184. In that decision dated October 8, 1985, the Vice-
Chairman stated at pp 7, 8 and 9 as follows:
“Whatever debate may still exist concerning
the right of a board of arbitration to rely
on post-discharge evidence in ascertaining
the prognosis for future attendance, the
Grievance Settlement Board has established
a precedent of permitting such evidence to
be used in deciding the issue of whether a
griever is likely.to be able to establish
an acceptable attendance record in the
future. In the ‘case of OLBEU (Mr. A.
Saunders) and the Crown in Right of Ontario
7Liquor Control Board of Ontario, 252/82
XSwan), it was stated, at p. 5:
‘This Board’s jurisprudence, developed
in a long series of cases beginning
with Re Cook and Ministry of Labour,
115/78 (Swinton) has recognized the
admissibility of post-discharge rehab-
ilitation as proper evidence of the
prognosis for future attendance at
work and satisfactory performance.
The Cook decision has been upheld by
the Courts of this province as in
appropriate exercise of this Board‘s
jurisdiction, and the Cook decision
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has been followed in other cases since 0 . . . .
The seeming unfairness of permitting a
griever to benefit from the delay in con-
cluding the arbitration hearing is referred
to by Mr. Swan at p. 6 of the Saunders
case:
‘While the Griever’s case has gained
considerable weight simply because of
the delay which occurred because of
his previous ‘waiver’ and the length
of time involved in the intervention
of the Ombudsman, that weight still
goes to precisely the issue which is
central to a determination of whether
he should be reinstated: the likeli-
hood of his future reliability as an
employee. Because of that delay, the
Griever is able to make a case which
is much stronger for example than that
advanced in Burns a decision in which
the present Vice-Chairman partici-
pated, and possibly that presented in
several of the other cases cited
above. . ..I
It is desirable that the jurisprudence of
this Board be consistent, in the absence of
cogent reasons for different rules applying
to essentially similar circumstances. Even
in the private sector, it has been noted
that if a particular rule has prevailed for
a long period of time, it is one which has
come to be. relied upon by the parties and
ought only to be changed for very good
reasons. No such reasons were presented to
this Board to persuade it to depart from
the practice of permitting post-discharge
evidence to be adduced, and acted upon,. in
deciding the issue of prognosis for regular
attendance and satisfactory service.”
In the result, the Registrar of the Grievance Settle-
ment Board shall be requested to schedule forthwith three days
to enable presentation of evidence ahd submissions on the
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merits of the Grievance.
DATED at Brantford, Ontario, this24thday of Sanuary,
A.D., 1986.
R. L. Verity - Vice-Chairman
a &i-y
G. Milley - t?ember