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HomeMy WebLinkAbout1988-0655.McClinton.89-01-03 ONTA RIO EMPL 0 Y~'S DE LA COU~fONNE CROW'N E_HIPLO YE. ES OE L'ONTARIO GRIEVANCE C,OMMISSION DE SETTLEMENT REGLEMENT BOARD DES GRIEFS 180 DUNDAS STREET WEST. TORONTO, ONTARIO. M5G IZ8- SUITE 2100 TELEPHONE/T~'L~PHONE 180. RUE DUNDAS OUEST, TORONTO, {ONTARIO) M5G 1Z8 - BUREAU 2100 (416) 598-0688 0655/88 -IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD Between: Amalgamated Transit Union (McC]inton) Gr~evor - and - The Crown in Right of Ontario [Toronto Area Transit Operating Authority) Empldyer Before: J. Forbes-Roberts Vice-Chairperson ?. Browes-Bugden Member A. Merritt Member For the Crievor: David I, Bloom Counsel Cava]]uzzo, Hayes & Lennon Barristers & Solicitors For the Emoloyer: G.W. Lodge Manager Human Resources GO Transit HEARING: October 20, 1988 DECISION The instant case involves the discharge of Mr. B. McClinton pursuant to article 7.2 (c) of the collective agreement. That article states: 7.2 An employee shall lose all service and seniority and shall be deemed to have terminated if he: (c)is absent from work for a period of three (3) or more consecutive working days without notifying the Employer or without justifiable reason accept-' able to the Employer. The letter of discharge is hereto attached as Appendix A. The pertinent portion of that letter states: "On Friday, 19 August 1988, you failed' to report for work at Brampton Garage at 06:00 hours. At 06:30 hours you contacted the duty Controller at Steeprock Bus Operations via telephone, and advised that you would not be report- ing for duty on this date. You did not report for work on 20, 21, 22, and 23 August, nor did you notify GO Transit regarding your absence. In accordance with Article 7.2 (c) of the Collective Ag[~pnt, you are terminated from employment effective immediately. (emphasis added) At the hearing the Employer sought to buttress its case by introducing the grievor's record. It was ruled that the letter of discharge is very narrow and specific in its reasons. The grievor was discharged for bein'g AWOL, and apparently no consi- deration was given to any past conduct (if indeed there was any worthy of censure). The Employer's case must stand or fall on the strength of the alleged breach of article 7.2 (c). We turn now to the facts. The grievor was employed as a driver with the GO Transit bus service. He had transfered to that service on April 17, 1987 from the TTC. His employment date with the TTC was March 4. 1980 and he carried his full seniority with him in the course of the transfer. There are set schedules for the GO Transit drivers, with one (1) spare driver to cover absence. If for what ever reason a driver is absent on a given day he or she is replaced and must call in by noon on that same day to be reinstated on the next day's work schedule. If the Employer does not receive a telephone call by noon it is assumed that the employee will be absent the next day as well. -2- The facts surrounding the events of August 19 through 24, 1988 are not for the most part in dispute. The grievor was un- guestionably scheduled to work August 19, 20, 21, and 22. He did not work on any of those days. The grievor called the Employer at 06:30 on August 19, 1988 and made no further contact until after receiving the letter of discharge on August 24, 1988. In dispute is the content of the telephone conversation on August 19. The grievor telephoned the Operational Controler, Mr. John Boneschanker. Recognizing the grievor's voice, for some unknown reason he put him on the speaker phone. According to Mr. Boner schanker the grievor stated "What time is it? What day is it? I won't be in for the day." That was the sum total of the conversation. In the office with Mr. Boneschanker was the Equipment Assignment Officer, Mr. Herb McGowan. Because it was on a speaker phone Mr. McGowan also heard the grievor's telephone call. His recollection is identical to Mr. Boneschanker's. The grievor asked the time, the date, and stated that he would not be in that day. According to the grievor on August 19 he arose as usual for work, dressed and then fell asleep .at the kitchen table. He awoke startled and disoriented at 06:30. Realizing that he was late, he immediately called in. However it is his recollection that he stated "What time is it? What date is it? I'm booking o~f agd ~ettingJ~¥self checked o~" (emphasis added). The grievor testified that he had been experiencing physical problems, wished to see a Doctor, and considered himself excused from work due to illness until he had medical clearance to come back. For two reasons we prefer the evidence of the Employer witnesses regarding the August 19 telephone call. First, by his own testimony the grievor was startled and disoriented when he awoke at 06:30. Indeed he was so disoriented that he did not know the time or the date. In that state the quality of one's - memory must be suspect. On the other hand Messrs. Boneschanker and McGowan had been awake for sometime and at work for at least half an hour. The conversation with the grievor was sufficiently unusual that it would no doubt be difficult to forget. Neither witness had any recollection of the grievor mentioning getting himself "checked out". Second, it was the grievor's contention that he was'absent due to illness and a desire to attend at the Doctor. Medical certificates tendered as evidence indicate quite clearly that he did not in fact approach his Doctor until August 23, the fourth day after he had last called the Employer. -3- In reply the Union called Mr. Peter Lewko, a shop steward with GO Transit. He testified that in the event of illness an employee simply "books himself off sick, and then calls before noon the day before he's coming back". For two reasons we find this evidence to be of no assistance. First Mr. Lewko did not state that he had ever" booked off" sick for a period of three (3) days or more without contacting the Employer. Second, and more importantly, we find that the grievor did not book off sick. The grievor merely called on August 19 and said that he would not be in that day. He gave no reason for his absence, nor any expected return date. The Employer's argument is simple. The grievor was absent for three (3) or more working days without notification. He thus ran afoul of article 7.2 (c) and was automatically terminated. The Union argues that invoking article 7.2 (c) is improper for two (2) reasons. First, the grievor did notify the ~mployer on August 19th._ Second, he had a justifiable reason for his absence. Union counsel also made an alternative argument relating to discharge for cause. We specifically find that this was not a discharge for cause, but rather was a discharge pursuant to article 7.2 (c) of the collective agreement. We turn first to the issue of notification. Unquestionably the grievor did contact the Employer on August 19th, and his absence for that day was excused. But was it excused for an in- determinate period of time such as to suspend the operation of article 7.2 (c)? We think not. The grievor called on August 19th and gave the bald statement that he "would not be in ~hPt dD¥". He offered no reason for his absence, nor any indication that it would extend beyond the one requested day. He did not plead illness which might reasonably be expected to require a four or five day recovery period. He made the one call on the 19th and then disappeared. Union counsel argues that there was no need for renotifica- tion, that the call on the 19th was adequate. Perhaps in a case where an employee had reported himself ill, or in some other way incapacitated this might be true. If the Employer wished further information on the illness or the individual's status then it would be incumbent upon it to seek that information out. In any event the employee has accounted for his absence, his where abouts, and an implicit intention to return to work. In the case at hand the grievor simply ann6unced an- unexplained one day absence and then failed to appear to cover his next three (3) scheduled shifts. Surely this is precisely the circumstance contemplated by article 7.2 (c). Nor does this Board find that in those circumstances it is incumbent on the Employer to pursue the employee in an attempt to acquire an -4- explanation. Article 7.2 (c) clearly places the onus on the employee to maintain contact with the Employer, not vice versa. we agree that this article ought to be' applied in a fair, reasonable and non-discriminatory fashion. This is why in the face of a reasonable explanation for absence, such as illness or according to at least one arbitrator incarceration, the article should be most cautiously approached. We find it neither unfair, unreasonable nor discriminatory to allow the article to operate in precisely the circumstances which surely it was meant to coveI. We find then that the grievor was absent for three (3) or more working days without notification to the Employer contrary to Article 7.2 (c) of the collective agreement. We turn now to the issue of a Justifiable reason for the grievor's absence. The bald fact remains that the grievor did not give any reasog, Justifiable or otherwise, until well after his termination. Clearly the Employer did not find the reason acceptable. Indeed the grievor's own Doctor's report (first tendered at the hearing) does not indicate that he was off work on medical advice. In fact, according to the Doctor, on the date of August 23. 1988 the grievor "...appeared mildly distressed and fatigued, but there were no other physical abnormalities .... In summary, Mr. McClinton presented on August 23, 1988 with extreme fatigue and mild shortness of breath." We do not find that the grievor provided a Justifiable reason agceptable to the Employer. The grievance is hereby dismissed. Dated at Toronto this 3rd day of January , 16F89. 'J. Forbes-Roberts, Vice-Chairperson "I dissent" (Dissent attached) T. Browes-Bugden, Member A. Merritt, Member t ,r'55 WilSOn Avenue. Downsview. Onlario M3H TRANSIT vv ,~ 16~ 630.5220 Telex 06.2~7508 ~3 August 3988 Appendix "A" REGI STEf(I'iD HATI, · m 45 Nartindale Ores. l)~smpton, Onto:Lo , b6X 2?9 Dose Mt. M¢ClJntonm On ~[-i41ay, 39 August 19B8, y,>t) fai3o8 to rr. port ~o= work at Brampton Garage et 06=00 hours. At 00~30 ))ou~s you contacted tho duty Controller at Ste~prock ~us Ope~etion~, via telephone, and advised that you wou)d not be ropprting ~o~ duty on this Yo~ dJ~ not repot't-~o~ d~d you notify GO Transit rogard~ng you~ absence. In accordance with ArtJclo 1.2 (C) of the Co)3ective Ag~eement~ you ara term~n,~tod from (~mplo),mont affectJve J~moaletely~ All rec~v,:rr~b)e ~tt,~,s issued ~,fktor h~ro ~u~t be returned to ~ Transit. FurrY, ar, a) I c,u~st.3nd~ng ticget sa]os must bo paid, o~ tho ~ppIic~ble receipts produced, in o=.der that you= [inal pay choquo may b~ R. ~. Swanson , . M~n~ge~, Bus Oporations c.c.. O. Lodge $. Dawson M. Knapp D, N. Cairns O. SJykhui$ R. E. Porter P. Lcwko - I,ocnl 1587 Emplo¥(,c ~'i lo - Ilur,~,'m St. eo[,rock DISSENT I have read the decision of the Vice-Chairperson and feel I must dissent. The reasons for this position are set out below. It is clear the employer relied on article 7.2(c) of the collective agree- ment to terminate the employment of the grievor. That article states: 7.2 An employee shall lose all service and seniority and shall be deemed to have terminated if he: lc) is absent from work for a period of three (3) or more consecutive working days without notifying the Employer or without justifiable reason acceptable to the Employer. I feel the employer did not exercise this article fairly and with the true intent of the clause. Surely, the actual intent is in a situation where the employee does not contact the employer and does not report for work for three .{3) or more consecutive days. The grievor did satisfy article 7.2(c), he called in to the Operations Controller and had a justifiable reason for his absence. Turning to exhibit #8, the Drivers Reporting Board, it notes the grievor's status as being suspended without pay. The Grievance Settlement Board Hearing was the first time the Union and grievor had knowledge of the suspension. The employer failed to introduce evidence of an investigation, any reasons for and any duration concerning the suspension. The question of why the grievor had been suspended was never answered. What would have happened if for example, on August.20th the grievor called to report for work on August 21st? Would the employer have said no your under suspension? What other article would have been invoked to terminate the grievor? The decision to suspend was made the same day the grievor called in, with no investigation or interview. I conclude the grievor was treated unfairly and discriminated against. The testimony.of Mr. Boneschanker, Operations Controller, I find suspect. The length of the conversation with the grievor was extremely short but, somehow he was able to idehtify the grievor's voice and immediately put the call on the speaker phone. Mr. Boneschanker admitted in his testimony this was not a usual practice. Mr. Boneschanker received a very unusual call from the grievor on August 19th. The grievor asked two questions, "What time is it?" and "What day is it?" I feel if anyone received a call with questions like these, wouldn't you be inclined to ask "What's wrong?" or "Are you alright?" Simple questions in response would be anyones normal reaction but, no not in this conversation. Mr. MCGowan, Equipment Assignment Officer, testified he basically heard the entire conversation between the grievor and Mr. Boneschanker. I find this highly unlikely as the conversation was so short in duration. These reasons are why I find Mr. Boneschanker's and Mr. McGowan's evidence not credible. I feel these two employer representatives in- volvement was a deliberate attempt to deprive the grievor of his rights through conspiracy. The Union witness Mr. Lewko, shop steward, his evidence was you call in to book off sick and to return you call in before noon of the day before your next work day.. If you don't call in, your still off sick. Mr. Lewko's testimony summarized Appendix A, item 4(a) of the Collective Agreement which states: Appendix 'A: Bus Driver Assigning and Detailing Procedure In order to permit a reasonable means of administering certain aspects of the Collective Agreement in a consistent and equi- table manner, the followin'g procedures will apply: 4. Reporting Back For Duty (a) Driver~ who have been absent from duty for an indefinite time due to illness, injury, jury duty or similar circumstances, must advise of their reavailability for duty prior to 1200 hours in order to be eligible to assume their own normal run or duties for the following day. I feel it was unreasonable that the employer booked the grievor off sick only for AUgust 19th.and not for the period of August 19th - 23rd inclusive. The employer did not receive a call to report back to duty, as described as a procedure in Appendix A, item 4(a) and could not expect the grievor to return until he placed the call. -3- It is my opinion that the employer did not act in good faith and had prejudice actions towards the grievor. For the foregoing reasons, I would have allowed the Grievance,