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HomeMy WebLinkAbout1988-0042.Carruthers.89-03-02 ONTARIO EMPLOYES DE LA COURONNE : CROWN EMPL 0 YE ES DE L 'ON TA RIO GRIEYANCE C,OMMISSION DE SETTLEMENT REGLEMENT BOARD DES GRIEFS I80 DUNDAS STREET WEST, TORONTO, ONTARIO. MSG IZ8- SUITE2100 TELEPHONE/T~'L~PHONE 180. RUE DUNDAS GUEST, TORONTO, (ONTARIO) M5G ;Z8 - BUREAU 2100 (416) 598-0688 0042/88 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD Between: OPSEU (T. Carruthers) Grievor - and - The Crown in Right of Ontarlo (Ministry of Health) Employer Before: R.J. Roberts Vice-Chairperson L. Robblns Member G. Mtlley Member For the Grievor: M. Bevan Grievance Offlcer Ontario Pub/lc Service Employees Union For the Employer: 3. Vaj. r Mathe~s, Dinsdale & Clark Hearln(;s: 3u]¥ .'15 ar:(] December 8, ]988 AWARD In the present case, the parties requested the panel to determine a single threshold issue -- whether on December 3, 1987 the grievor requested to take time off on January 8, 1988 as compensating leave under Article 19.04 of the Collective Agreement. Article 19.04 reads as follows: ARTICLE 19 - HOLIDAY PAYMENT 19,04 Any compensating leave accumulated under sections 19.02 and 19.3 may be taken off at a time mutually agreed upon. Failing agreement, such time off may be taken in conjunction with the employee's vacation leave or regular day(a) off, if requested one (1) month in advance. For reasons which follow, we conclude that such a request, was made on December 3, 1987 and remit the matter to the parties in this posture for their further consideration, According to the evidence, the Grievor worked as a Psychiatric Nurses Aide at the Penetanguishene Mental Health Centre operated by the Ministry. At the time of the grievance, he worked on Ward 5, a Forensic Unit. This was a locked unit which received the worst cases to reach the Mental Health Centre. These cases included patients on remand, Lieutenant Governor's warrants and patients who were aggressive by reason of withdrawal from drugs, etc. The grievor worked on a ~0 hour per week schedule with 12 hour shifss in a staggered rotation. 2 The griavor testified that on December 3, 1987, his scheduled day off, he called his Supervisor, Mr. A. DuPuis, from his home. The grievor said that he made it clear that he needed January 8th off. According to the grievor Mr. DuPuis replied that it did not seem to be a problem and he would get back to the grievor. The grievor further stated that when he telephoned, the telephone was answered by one of the other staff members who worked in the ward, Ms. Mary Craig. He said that he told her why he was calling. Upon cross-examination the gr~evor added that Ms. Craig put him on hold for a few minutes and then came back on the telephone and said that she buzzed Mr. DuPuis but there Was no answer. Ms. Craig then went to get Mr. DuPuis and the latter came on the line at the nursing station. This indicated to him, the grievor said, that Mary Craig would have overheard Mr. DuPuis. According to the grievor, the next time he talked to Mr. DuPuis about his request was on December 10, 1987. He said that on that ,day he was working the 3:00 to 11:00 p.m. shift and he talked to Mr. Du?uis, who worked days, before the latter left the premises. The grievor ~a~d, "I asked him if in fact I did have the day off, if he had looked into it for me. He said that because of the way in which the staffing was set up on January 8, I 3 should talk to the otb. er male staffer on the shift to see how he felt about being the only male on duty that night." The grievor said that when he did talk to the other male staffer, the latter responded with alarm at the prospect of being the only male on the shift. The grievor asked Ms. Craig if she would switch her shift with him, and she said okay. Mr. DuPuis, however, did not agree. The grievor said that Mr. DuPuis refused to allow Ms. Craig to switch with him because she was not a male staff member. Even at this time, the grievor said, Mr. DuPuis did not make it clear whether he did or did not have January 8 off. The grievor said that he expected to hear from Mr~DuPuis again but he did not. By the time December 21 came around, the grievor testified, he decided to press the issue. He went to Mr. D. Jackson, the Area Supervisor and put his request in writing. On December 22, Mr. Jackson rejected his requsst by signing his name in the "rejected" space that was provided on the form submitted by the grievor. When the grievor received this rejection, he was unhappy. He testified that as a Union Steward, he had a working knowledge of the requirements of Article 19.04 of the Collective Agreement and that, in his view, it meant that if one month or more in advance, he requested to take compensating leave in conjunction with a regular day off, the leave had to be granted regardless of whether there was mutual agreement with his employer. He said that in his telephone conversation with Mr. DuPuis on December 3, he made Mr. DuPuis aware of this interpretation of Article 19.04. Moreover, he said, the requested date of January 8, 1988 was in conjunction with his.regular days off. When questioned upon cross-examination as to why he did not make a written request on December 3, the grievor indicated that in his view, there was nothing in the Collective AGreement which required the request to be in writing. He said that verbal requests ~or time off were quite common and that he had made uerbal requests for t~me off in advance before. The grievor also referred to the fact that at the time he made the request, he was at home. The grievor said that he waited until December 21 to file a written request because up until that time he assumed that Mr. DuPuis would get back to him but he did not. Ms. Mary Craig testified that on December 3, the grievor telephoned in and asked to speak to Mr. DuPuis. She stated that the grievor said he was telephoning to ask for a statmtory ~ay in January. According to Ms. Craig, she then asked the grievor to hold the line and went and found Mr. DuPuis'. When Mr. DuPuis came to the telephone, she said, she was sitting at the desk. She heard Mr. DuPuis say , "Sure, that should be no problem, I'll get back to you." She said that she could not hear the grievor. Ms. Craig further testified that on December 10, 1955, she and the ~rie~or met up With Mr. DuPuis in the office behind the nursing station. She placed %he time of this meeting at about 2:00 p.m., and certainly before 3:00 p.m. On that day, Ms. Craig said, she was working on the 7:00 a.m. to 3:00 p.m. shift and that the grievor was also working on this shift. According to Ms, Craig, when the grievor asked Mr. DuPuis about time off on January 8, Mr. DuPuis replied that the grievor was the second male on the night shift. She said that she offered to switch shifts with the grievor so that he could have January 8 off but Mr. DuPuis told the ~rievor to check with the other man scheduled to be on the night shift that day to see how he felt about working like that. She added that Mr. DuPuis told her that she could not switch with the grievor because she was not a man. On cross-examination, Ms. Craig insisted that it was not possible that the foregoing conversation could have taken place on a date other than December 10. She also stated %hat she had never requested compensating time off over the telephone. When questioned regarding a policy that all requests for compensating time off be in writing, Ms. Craig stated that this policy came into effect at the end of January, i988, al[er [he grievance had been fi]ed. Thi. s was when a memorandum wen~ up ~)n [h~' bu]](~tin board. 6 When asked by a member of the panel for clarification of one aspect of her testimony, Ms. Craig stated that on nights in Ward 5, the minimum staffing level was 3 psychiatric nurses aides. At the time of the Grievance, the schedule was drawn so that there were always two males and one female in this complement. Mr. DuPuis testified that he could not recall the grievor contacting him by telephone on December 3, 1987 regarding 'taking January 8, 1988 as compensating time off. In fact, he said, he could not recall the grievor ever contacting him by telephone to request compensating time off when the requested day was one month in the future. As to the conversation that allegedly occurred on December 10, Mr. DuPuis stated that this must have occurred on December 11 because that was the only day upon which he and the grievor were on-shift at the same time. Mr. DuPuis said that as he was just leaving the staff room, the grievor came over with the time sheet to talk about taking January 8 off. AccordinG to Mr. DuPuis, the grievor said he was thinking of taking this day off and he, Mr. DuPuis, looked at it and advised the Grievor that if he took that day off it would leave only one male on nights. He advised the grievor to contact this other male staffer to see if he would mind working alone or find out if a switch could be made with another male for that shift. After that, Mr. DuPuis said, the 7 grievor never came back to him. He said at that point he did not consider the grievor's remarks to constitute a request for taking compensating time off on January 8. Referring to .the time sheets for the relevant days, Mr. DuPuis said that the conversation could not have taken place on December 10 because on that day the grievor was on the 3:00 to 11:00 P.m. shift.while he was on the ~ay shift. Further, Mr. DuPuis stated, the record showed that he was at work from only $:00 a.m. to 1:00 p.m. on that day. He took the remaining 3 hours of the shift as compensating time off. According to Mr. DuPuis he left the building at 1:00 p.m. On the other hand, Mr. DuPuis added, on December 11 the grievor worked the 11:00 to 11:00 shift, which shared a five hour overlap with his own 8:00 am. To 4:00 p.m. shift. As a result, he said, December 11 was the only time that would have been available in which to discuss compensating time off with the grievor. He said that he recalled that the grievor was on duty when he discussed compensating time off with him. When cross-examined regarding the possibility of a telephone request from the grievor on December 3, Mr. DuPuis said that he did not recall any conversation li. ke that with the grievor. He said that he would not deny it 100% but he did not recall getting a telephone call from the grievor and telling him that he would 8 Get back to him. When pressed further, Mr. DuPuis indicated that he was positive that such a telephone call never took place. As to the conversation on December 11, Mr. DuPuis said that the grievor did not say that he was taking January 8 off. He said that he was not left with the feeling that the grievor intended to take it off for sure. Moreover, Mr. DuPuis stated, the grievor did not make any reference to a previous request having been made on December 3. He .said that he could not recall if Mary Craig was there. He had no recollection of Mary Craig saying that she would work the grievor's shift and responding to her that she could not because she was not male. He said it was possible that it could have happened and that he might hive responded in that way. He said that he probably would not have altowed her to switch but would have tried to get another male. In this regard, he indicated that because of the nature of the patients in Ward 5, it was considered to be safer to always have at least two males on the night shift. Mr. DuPuis also testified that because the work schedule up to and including January 8, 1988 would have been posted around November 27, 1987, he would not have had any authority to grant a request for compensating time off for the griever for that day on December 3. He said that his authority to grant compensating time off terminated with the posting of the schedule. Thereafter, that authority belonged to Mr. Martin Gignac, who 9 worked in the nursing office and looked after all the time sheets, days off for staff, etc. He indicated that this fact would have been known to the grievor. Mr. Du?uis also gave testimony regarding the following letter which was in reply to the grievance leading to the present arbitration: TO: MR. TERRY CARRUTHERS P .N.A. 2 Ward 5 FROM: Mr. Alvin DUPUIS Ward 5 Supervisor Grievance dated January 8th, 1988 In response to your grievance dated January 8th, 1988 alleging a violation of Article 19, please be advised that the_re has been no violation of the Collective Agreement, therefore your grievance is denied. On December 3, 1987, you requested compensating leave accumulated under Article 19.2 and 19.3 to be taken off on January 8th, 1988. I reviewed your request and was unable to grant it due to: 1. the operational requirements of the Nursing Department on the n~ght shift as forecast for January 8th, 1988; 2. the minimum staffing levels on all wards of the Mental Health Centre due to holiday scheduling; 3. the ongoing practice of never lowerin~ male staffing levels below 2 on ward 5. In addition, according to Article 19.4, when an employee and employer are unable to mutually agree upon a time for accumulated leave to be taken off, the employee then has the opportunity to request his leave one month in advance and 10 have it ~ approved. You failed to comply with the requirements ~f the Collective Agreement. Mr. Alvin DuPuis Ward 5 Supervisor When asked on direct examination why he referred to a request for compensating leave made by the grievor on December 3, 1987, Mr. DuPuis said that there was a typographic error. He intended to say December 23. Mr. DuPuis added that if the request had been ma~e on December 3, i.e., more than one month before January 8, he would not have included the last sentence in the letter. This sentence referred to the ~ailure of the grievor to request compensating t~me off for January 8 one month in advance after failure to mutually agree with the employer. Upon cross-examination, however, Mr. DuPuis admitted that while he signed this letter he did not compose it. He said it that it was composed by Mr. D. Jackson, the Area Supervisor of the Nursing Department, and he only signed it because the Collective Agreement required the supervisor to be the one to answer a grievance at the first step. He then hesitatingly admitted that he was not responsible for the contents of the letter and had to agree that this admission would cancel his testimony upon direct regarding his alleged motivation for including the last sentence in the letter. 11 Mr. Jackson testified that prior to the current Collective Agreement, which apparently was the first to include the "one month in advance" proviso in Article 19.4, he routinely rejected requests for compensating time off which were made after the schedule was posted but more than one month prior to the requested date. He said that this was because of the need to staff a unit safely. After the time sheet was posted, he said, the department did not have a pool of part-time' staff to draw from. As a result, to grant a request for compensating time off after the posting of the schedule, the department would have to change the shifts of people or call in employees on overtime. For this reason, he said, if the time sheet had been posted by December 3, the grievor probably would not have got January 8 off even if he had asked for it more than one month in advance. Turning to the written request which the grievor had submitted on December 21, Mr. Jackson said that he turned it down on December 22, the same day upon which he received it. It was apparently brought to him by Mr. Martin Gignac, who found it on his desk. The two men discussed the request and rejected it. After that, Mr. Jackson said, he did not hear from the grievor - until he received a first stage grievance in January. When his attention was directed to the apparent practice at the time of always ensuring that two of the three psychiatric nurses aides on the night shift were male, Mr. Jackson referred 12 to the dangerous natur~ of the patients and the fact that at the time of the grievance, Ward 5 had the highest incidence of incidents in the system. This meant, he said, that it was a demanding unit to work on, with the'possibili%] of having to use a physical or chemical restraint being much greater than in the rest of the Hospital. Expanding upon this, he said that the use of physical restraint likely would have been a daily occurrence on Ward 5 at the time of the grievance. It was not thought to be safe for the staff or the patients, he said, to ever have just one male s~aff on Ward 5. In his experience, Mr. Jackson added, it was nearly always the case that the male staff were the ones who did ~he restraining. While the female staff received the same pay rates and crisis intervention training as the males, he said, his strong impression was that the male staff would want another male with him when going in to restrain a patient. Turning to the written response to the grievance at hand, Mr. Jackson stated that he did draft this, and after he had showed it to Mr. DuPuis and discussed it with him, the latter signed it. As to th~ reference to a request by the grievor for compensating leave on December 3, Mr. Jackson t~stified that this was a "typo", that the date should have been December 23. When Dressed upon cross-examination as to the significance of December 23, Mr. Jackson encountered some difficulty in explaining. He 13 agreed that he rejected the grievor's written request on December 22 and the latter was submitted on December 21. He said, "I don't know why I wrote December 23 on the letter as opposed to December 21 or 22." Considering the divergence in the testimony of the foregoing witnesses, it seems that the only issue to be resolved by the panel is one of credibility. In determining this issue, we find helpful the following observation of Schroeder J.A. in Phillips v. Ford Motor Co. of Canada Ltd. (1971), 18 D.L.R. (3d) 641, 649-50 {Ont. C..A.): ~ Cma< ot Ai~a~ in F=q~ "If. n ~ J~'s ~ of ~ty ~,I~O.W.N.~ A~by ~ ~r ~ e~nve~ ~ --~ of ~ ~ ~ ~ ~, ~ of ~ ~wd ~M ~ in ~ ~f-~ ~th ~ sepp~on of the t~th. For t ~ J~ ~ ~ '~ ~e~e ~ t~', ~ ~ ~ ~ i ~ion on ~ide~tion of only ~f t~ I p~Mm. In ~ it ~y ~ily ~ ~lf~ion ~ trial Judg~ ought ~ go fur.~ar and -.y .rmoau fo~ tht ~. The hw do~ not clot. he of App,ml m~mt bm ma~ied that tim wtal Judge*~ finding In determining credibility, it is not only important to assess the demeanour of the witness on the stand but also his or her opportunities for knowledge, powers of observation, judgment and memory, ability to describe clearly what was seen or heard, and any other relevant factors such as the potential interest of the witness in the outcome. While there were frailties in the testimony of all of the witnesses who appeared in this case, it seems to us that consideration of the foregoing factorsbmust lead us to prefer the evidence of the grievor and Ms. Craig over that of Mr. Du?uis regarding the making of a request by telephone on December 3, 1987. In his testimony, the grievor clearly recalled the details o~ this conversation. Ms, Craig, who was not shown to be anything but a disinterested witness, confirmed receiving such a telephone call from the grievor and recalled the grievor's statement to her that he was telephoning Zn to ask for a statutory day in January. Moreover, while there was some uncertainty in the evidence as to whether the second conversation with Mr. DuPuis occurred on December 10 o~ 11, Miss Craig substantially corroborated the grievor's version of events. Mr. DuPuis, on the other hand, tended to have difficulties with his recollection. On direct examination he initially said that he could not recall receiving such a telephone call from the 15 grievor. Later, on cross-examination, he vacillated, saying that he would not deny the telephone call 100% bu~ then later he opined that he would say that. it never took place, that he was positive it never'took place. Likewise, when it came to the subsequent meeting, Mr. DuPuis could only recall the presence of the grievor and his suggestion that the grievor check with the other male staff member scheduled to work on the evening shift of January 8. He did not recall the presence of Ms. Craig, nor did he recall refusing her offer to switch shifts with the grievor. We also consider the reference in the first-step reply~to the grievor's requesting compensating leave on December 3, 1987, This seems to provide more than a grain of confirmation of' the fact that such a request was made on that date. It is difficult for us to credit with much weight the explanations of Messrs. Jackson and DuPuis that this was a typographical error and should have been December 23.' Mr. Jackson, who drafted the letter, had to concede on cross-examination that in the entire sequence of events, D~cember 23 had no significance whatever. Moreover, we express some concern about the testimony on_ direct examination of Mr. DuPuis regarding hi~ motivation in drafting-the final part of this letter when, in fact, it was shown to have been drafted by Mr. Jackson. 16 Further, the panel does not consider the closin~ ~aragraDh of the above letter to be at all inconsistent with the acknowledgment of a request having been made on December 3. The closing lines of this letter read to us as if the employer understood Article 19.4 as requiring a second request for time off to be made after failure to mutually agree, with the second request still being required to be made one month in advance of the requested date. We make no comment concerning the soundness of such au interpretation of Article 19.04. Finally, concluding that the grievor made a request on December 3, 1987, more than one month in advance of January 8, but after the posting of the schedule, seems to be consistent with what actually occurred in this case. In his testimony, particularly upon cross-examination, Mr. Jackson left no doubt that under the practice that then existed the grievor's request would have been routinely denied by virtue of difficulties in rearran~in~ staffin~ after the Dostin~ of the schedule and/or the unattractiveness of paying overtime. In light of the foregoing considerations, it is the declaration of the Board that the grievor requested time off for January 8, 1988, in a telephone call to Mr.DuPuis on December 3, 1987. We further declare that this was a proper request. There was no evidence to indicate that this request was made through improper channels. There was no policy forbidding telephone 17 requests. While to the grievor's knowledge, Mr. Jackson might have had a final say, the evidence left little doubt that the request was to be initiated with Mr. DuPuis. Mr. DuPuis even tended to confirm this fact in his own testimony, when he agreed that on December 10 or 1i, long after the schedule had been posted, he discussed with the grievor the staffing problem that he saw in the grievor taking time off on January 8. He did not refer to the ~rievor to Mr. Gignac or Mr. Jackson. And further to this final point, there was nothing in Mr. Jackson's testimony to indicate that after the schedule was posted it would have been improper to initiate with Mr. DuPuis a request for compensating time off. The matter is remitted to the parties in this posture for their further consideration. DATED at London, Ontario, this 9. nd day of March 1989. S, Vi¢o~ Chairp,rson