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HomeMy WebLinkAbout1988-1274.El-Batrik.90-11-08 ONTARIO EMPLOYES DE I,.A OOUt~ONNE GROWN EMP£ 0 YEE$ DE L 'ON TA R/O GRIEVANCE CpMMlSSlON DE SE'r'[LEMENT REGLEMENT BOARD DES GRIEFS leo OUNDAS ST~tEET WEST, SUJTE 2700, TORONTO, ONTARIO. MSG 'lZ8 TEL.EPHONE/T~L~PHONE: (4 ~6) 32~-/~88 180, RUE DUNDAS GUEST, BUREAU 2~, TORONTO (ONTARIO), M5G ~Z8 FACSIMILE/T~COP~E .' (416) 326-~396 1274/88 IN THE MATTER OF AN ARBITRATION ~, Under THE CRowN EMPLOYEES COLLECTIVE BARGAINING ACT ~ Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN ~ OPSEU (E1-Batrik) Grievor - and - The Crown in Right of Ontario (Ministry of Health) EmPloyer BEFORE: R.J. Roberts VicerChairperson I. Freedman Member M. O'Toote Member FOR THE N. Wilson GRIEVOR Counsel .. Gowting, Strathy & Henderson Barristers & Solicitors " FOR THE D. Costen EMPLOYER Counsel Human Resources Secretariat Management Board of Cabinet HEARING: April 24, 1989 September 21, 1989 " July 11, 12 1990 ! ~W~RD This is a difficult case, arising out of a termination for innocent absenteeism. The difficult? is not only caused by the usual complexity which attends an innocent absenteeism c~se but also by certain evidence that the prognosis for the ~rievor depended to a Great extent upon her own' willingness to make an intensiv~ effort to get well. A further complexity was introduced .into the matter by other evidence that the ~rievor's ailment -- chronic pain syndrome -- was .. a~ravated by stress wh, ich.the ~rievor seemed to Generate within herself as, apparently, an involuntary response to an attendance monitoring and review Droaram reasonably instituted by the Employer in an effort to assist in the improvement of the arievor's attendance record. For reasons which follow, it is the conclusion of the Board that the ~rievor should be conditionally reinstated with full seniority but·without back Day to a reasonably acceptable· nursin~ position within the Ministry other than her former position at Penetan~uishene. This reinstatement should occur within 60 days of the date of issue of this. award, and the Board expects the ~rievor, the Union and the Ministry reasonably to co-operate in meetino this Goal. -We will retain ~urisdiction oendin~ implementation by ~he parties. The ~rievor commenqed emp.ioyment at the Mental Health Centre in PenetanQuishene on September 14, 1981. At that time, she held a Bachelor of Science Degree in Nursing and had accumulated credits towards a Master's Degree in the field. She was employed as a Quality Assurance Co-ordinator, NursinG, a position which was later renamed Nurse Auditor. In this positionr {he ~rievor was responsible for reviewin~ patient files from the 6 wards in the Mental Health Centre in order to determine if the level of care received by each patient was to the standards demanded by the facility. The orievor also was responsible for providing, in-service training to nursing staffs in order to up-date them on the latest equipment and procedures. The "grievor reported to. the Assistant Director of Nursing, Mr. L. Miller who, in turn, reported to the Director of Nursing,. Mrs. Finney. UD until the end .of i984, the ~rievor's ra%e of absenteeism was high enough to concern management, but not~ high enough to'set off any alarm bells. She was off work due to illness or injury for 32 and 3/4 days in 1982, 20 days in 1953,. and 27 and 1/4 dave in 1984. In 1985, however, the alarms becan to sound. The Grievor was off work due to illness or iniur? for 131 and 1/2 d~ys, with 30 of those approved for Workers Compensation Benefits. In 1986. she was off due to illness or injury for 79 and 1/2 days. _. The crievor testified that~ this shard jumm in her ra~e cf absenteeism was attributable tc injuries which she received in an auto accident in November, 1984. Apparently, while the arievor was drivinc her car on 5he hichway in the course of Derformina her duties, a truck swerved from the oncoming lane into the path cf her vehicle and there was a collision. The ~rievor sustained a severe trauma and, inter, a~.~. injuries to her back. The crievor sta~ed in her testimon~ that this accident changed her life and khe never felt well after that. In her words, it started evervthinc. The effects of these injuries were compounded, the crievor testified, as a result of two more auto accidents, in February and Aucust, 1985, followed by another acciden~ in April, 19"88. when the crievcr was struck by a van. In early February, 1986, Hr. Hiller held a meeting with ~4rs. Finney, the then Director of ~'~ursinc, to discuss the crievor's absenteeism. It Was decided to write a letter to McKerrow, the Hospital Administrator, requesting a hearin~ tc discuss the ~rievor's' record of absenteeism. After settinc forth the year-by-year statistics, the letter sta~ed, in pertinent part:· Mrs. E1-Batrik's absenteeism was a concern in 1952, at 4 which time I discussed this with her. She was guite defensive ' about bein'g talked ~o. Her attendance did however · improve the next year. In 1984, t again sDoke to Mrs. E1-Batrik regarding, her absenteeism'. Mr. R. Lemieux, her Union ReDresentative was Dresent. ! congratuiated her on her improvement to date (at that time 18 days). She used a total of 27 1/4 days that year. I~ 1985, Mrs. E1-BaCrik was away most of the year due to illness and the results of injuries r~ceived in a car accident in February 7th. To date,, in 1986, Hrs. E1-Batrik has been absent 15 1/2 days. I feel a hearing to discuss ~,Irs, E!-Batrik's absenteeism is in order~ to ascertain her prognosis ~or improvement and her ability to complete her employment resDonsibi!ities in a consistent manner. Thank (signed) .Mr.. Len"'~iller, Assistant'Director of Mursin~- Mr. ~iller testified that, accordinc to his reckoning, the grievor ..had accumulated 229 days of si'ck time and 30 days off on Workers Compensation Benefits by. the time this memo was drafted. Shortly thereafter a meeting was held to discuss the griever's absenteeism. Present at the,meetin~ were Mr. McKerrow~ Mr, Mill~r, Mrs~ Finney, the ~rievor, Mr, Lemieux. the Shod Steward. and Ms. D. Beach, the President of the Local Union. In th~ course cf the meeting, Ms. Beach indicated Chat although the orievor had ooor health and had suffered as a result of a car accident, her ~rocnosis was favourable and the Union was confident she would be 5 able to maintain a consistent attendance record. Mr. McKerrow aDparent!y was satisfied with this assurance. He emphasized that if her record did not imDDrove, he likely would have to consider other outions, includind release. Ail of this was confirmed in writing to the grievor after the meeting. Thereafter, Mr. Miller continued to monitor the crievor's attendance, and when he noticed that from the date of the meeting in mid-February to early April, the crievor had recorded several more days of absence due to illness or injury, he requested that Mr. McKerrow hold another meetinc.~ The ~rievor and her U~icn representatives were duly notified, and the meetinc was held on April 15, 1986. In attendance were Mr. McKerrow; Mr. Callas. the Regional Personnel Administrator: Hr. Miller~ the crievor: Mr. Prost.. who was then the crievor's lawyer; Ms.. Beach: and Mr. Lemisux. At this meetinc, the ~rievor provided information showinc that her prognosis for being a recuiar attender in the future was cood. Mr. Prost succested that since the Qrievor was injured in the iin~ of duty in an automobile accident, the Hospital should co-operate with the crievor in efforts to seek held from Dr. Hamilton Hall, a famous back specialist whom the crievor had previously se~n in Toronto. Subsecuentlv. on May 15, i986.-Dr. Hall corresponded with fir. Prost, and a cody of this c6rresDondence was made 'available to Mr. McKerrow. It read as follows: I have read the letter dated April 16, 1986 from Mr. W. McKe~row regarding Mrs. P'auline E1-Batrik's high level of absenteeism. This woman's disability. -as you are aware from my report of November 1, 1985, is the result of a well-established chronic pain syndrome. Mrs. E1-Batrik regards herself as disabled and her continuinu disputes with the Worker's Compensation Board and now with her employer, have simDiy added further stress to the situation. So' long as this patient feels that she is incapable of continuinc to work regularly, she will simply not be able to do so. In a very real sense, this 'is a self-fulfillinc prophecy. As I have also informed.you, I do not believe M~s El- ' Batrik is malingering. Her disability is genuine and the' patien~ truly feel that ~her pain will prevent her from continuing in her present level Of activity. As i.s often the ca~e in a chronic-p.ain syndrome', the physical examination is normal. Mrs. Ei-Batrik's problem lies in her disability behaviour pattern and in her altered self- image, rath'er than in any structural damage to her spine. ~,,,~ Treatment of the chronic pain syndrome is difficu'It. It recuires an intensive effort on the part of the patient to .~ alter her attitude towards her own capabilities. In this regard, an intensive 9rocramme of therapy is often necessary. I have recommended that Mrs. E1-Batrik began treatment with A. T. Walton & Associates. I would also recommend that she start ~ an acgressive physiotherapy exercise programme through the Canadian Back Institute. Both.of these treatments are on an outpatient basi~' Mrs. E1-Batrik does .not require admission to a "clinic". Indeed. one of the strengths of these programmes is their ability to maintain the patient' in a normal social and work environment during the treatment period. One of the 'failings of the pain clinic concept is that patients withdrawn from their normal surroundings often make only temporary cains only to lose them when the stresses '- of normal living return. ..~I think it is significant that Mrs. E!-Batrik has indicated to her employer that she requires six weeks leave of absence for treatment. At no t~me did I' make ~uch'a request. I certainly have'recommended treatment, however, and I would strongly suggests that Mrs. E1-Batrik be allowed to becin without delay. As you are aware, the longer this woman remains in her present pattern of disability behaviour, the more difficult her ultimate recovery will become. .I think it is imperative that her employer provide her with the time to attend treatment'but I would recommend that this time be taken out of the patient's normal work schedule so that Mrs. E1- Batrik can both continue in her job at least on a part-time basis and receive therapy. This would have 5he great benefit of maintaining her daily activities as near normal as possible. Mrs. E1-Batrik's request for a six week leave of absence reinforces my opinion that this patient sees herself as seriously disabled and incaDable~of continuing to function at a productive level. Physically, .this is not the~ case. If the chronic pain syndrome is allowed to develop further, however, Mrs. E1-Batrik will undoubtedly live uD to her own expectations Sincerely, (signed} Hamilton Hall., M.D., F.R.'C.A. The g~ievor was diagnosed as suffering chroni.c .pain syndrome, a condition which resulted from the crievor's disability behaviour pattern and her altered self-image, rather than a physical .cause. Dr. Hall recommended that the qrievor make intensive efforts to alter her attitude toward her own capabilities by beginning treatment' with A. T. Walton & Associates, and commencinc an aggressive physiotherapy exercise programme at the Canadian Back Institute. These treatments were to be on an out-patient basis. Thereafter, the grievor was Given time off to go to the Walton Clinic: however~ after a short time she left the Drocramme. The grievor testified that she probably went to the Clinic about 3 to 4 times and did not complete the programme because she could not take the pain. Moreover. she'stated she found it stressful to drive to Toronto, where the Clinic was located. She also was friohtened that the time off she was qiven to attend the programme would add more sick time to her already Door record. The grievor could not recall ever telling the Employer that she stopped going to the Walton Clinic. The grievor's attendance also continued to deteriorate. From January 1, 1986' to June. 9, 1986, her total sick time had' accumulated ~o a grand total of 53 and i/2 days. Mr. Miii~r requested another meetinc, and this was held on June 20. At the5 po~nt~ ~he gri~vsr exhibited the treatment plan provided by the Walton ~linic, which she was still attending at the time. She also provided medical information to indicate that'sshe would in future be able to establish a-reGular pattern of attendance. By December, 1986, howe~er, no improvement had been From June 20 to December 15, 5he ~rievor had turned in another 26 days of absence due to illness or injury. Mr. Mi!let', who had recently become the Acting Director of Nursing, wrote Mr. George Kytayko, the. new Hospital Administrator, requesting another meeting. This meeting was held' in January, 1987. In attendance were Mr. Miller, Mr. Kytayko, Mr. Callas, the crievor, Mr. Lemieux and Mr. Lenahan, who had recently reutaced Ms. Beach as the President 9 of the Local Union. At that meetinG, it was suGGested by Hr. Lemieux that in lieu of termination for innocent Rbsenteeism,' the Grievor could be provided with one last chance to become a regular attender via an employment agreement. Pursuant to this suGcesti99. the parties entered into the following agreement: EMPLOYMENT AGREEMENT BETWEEN: The Ontario Public Service Employees Union (Pauline E1-Batrik) AND The Crown in the RiGht of Ontario (Mental Health Centre, Ministry of Health) The parties recognize that, since her appointment to~ the Ontario Public Service on September 14, 1981, Mrs. E1-Batrik's rate of absenteeism has been unacceptable. In lieu o'f termination for innocent'absenteeism and to provide Mrs. El-Batrik one last opportunity too meet her contractual duty to make herself .reasonably available' for work~ the parties, without precedent ~nd without orejudice>' :'~ hereto agree to the following terms o~ employment: 1 Mrs. Ei-Batrik will net be absent from work due to illness or injury more than FOURTEEN. (14) days from February 1, 1987 to January 31, 1988. 2 If Mrs. E1-Batrik is absent from work due to illness or injury in excess of FOURTEEN days in above mentioned time period, a letter ·. of resignation, signed this date and retained on her personnel file, will' be processed with- proper Notice of Termination as described in the Employment Standards Act. 3 The Union'and Mrs. E1-Batrik agree that they will not file a grievance should Mrs. E!-Batrik's resignation be processed to terminate her employmen~ in accordance with the-terms of the agreement. 4) The Employer agrees not to terminate the employment of Mrs. E1-Batrik for absenteeism due to sickness lO or injury provided these terms are met within the effective dates-of this agreement. 5) This a~reement sh~ll be in effect from February i, 1987 to January 31, 1988. Dated at Penetan~uishene this 16th day of January 1987. (si~ned) For the Ministry of Health? ...... ._L.-~ Miller ............ Rick..Lemieu. x, Chief Stewart For the Ministry of Health For O'.P.S.E.U., Local 329 For a oeriod of one year, from February i, 1987 to Jan. uar_v 31, 1988, the ~rievor. obligated herself to turn in no more than 14 days of absence due to illnes's or injury, and in the ege~t that she were to exceed' this limit, the Employer was authorized to process a letter of resignation which', the griegor provided and which was · ~,-~ appended to the agreement. The limit set forth in the Emoloyment Agreement seemed to hav~ a salutary effect upon the qrievor's attendance. From February 1, 1987 to January 31, 1988, the qrievor only used 13 and 1/2 days of sick time. Shortly after the expiration of this period, however, the grievor's, attendance record ~ook a dramatic turn for the worse. Within the next two months, from February 1, 1988 to APril 7, 1988, the Crievor's use of sick times soared to a total of 13 and 1/2 days. There was another meeting, attended by Mr. Kytayko, Mr. !! Miller, Mr. Callas, the crievor, and Mr. Lemieux. Mr. Kytavko recuested a mandatory medical examination and the qrievor acreed. It was stated by Mr. Kytayko that he was going to reserve his decision upon whether to reassicn the ~rievor or termin'ate her until after he received this information regarding her ability to come to work on a regular basis. This was confirmed to the ~fievor in writing, 'At the hearing before this Board, the qrievor qave, less than a satisfactory explanation of this sudden deterioration in her attendance pattern. When asked why her attendance deteriorated after the Employment Contract expired, the grievor stated that she found the time she was on the contract extremely stressful, she ~as terrified .that she would lose her job. After she cot off the contract, the ~rievor said, she did not find the work environment supportive, her back h'Ur~ more, and she did not seem to be' able to make it in for "whatever reason" Mr. Kytayko's ,.letter to the crievor which followed the A.Dril 1988 meeting read as 'f'ol!ows: Dear Ms. E1-Batrik: This is f~rther to our meeting on Friday, April 15th. 1988, which followed the attendance review hearing held on April 7th. 1988. As stated to you, in order that I may properly decide on what action should be taken to deal with your unusually high and continuing rate of absenteeism, a mandatory medical examination will be arranged for you in the near future. This will be in accordance with~ Article 52.9 of the.'Collective ¸12 Agreement. The purpose ~'f this medical revlew will be to estabti'sh a medical ~ro~nosi~ in relation to vour ability to a~tend at work on a consistent and continuing basis. Once this information has been provided to me, I will then determine what course of action to take. As indicated Dreviously~' this may include your dismissal from emolovmsnt with the'Mental Health Centre for innocent ab~.~nteeism. Yours truly, (.siGned) George J. Kytayko, Administrator It was indicated that once the information from the medical review had been provided to him, Mr. Kytayko would determihe what course of action to take, including the matter of dis'missal for innocent absenteeism. The medical'examination was conducted by Dr. David Etlin. H~_ reported his findings to Dr. H. R. Chambers, the Medical Director of Employee Health Services for the Government of Ontario. 'and on Auaust 18, I988, Dr. Chambers wrote the followinc memorandum to Mr. Callas, the Regional Personnel Administrator o~ the Mental H~alth Centre in Penetanguishene: Re: Pauline ElqBa~ri~ Please refer to your request to have the above named employee of your ministry examined under article 52.9 of the Colledtive A~reement. This examination was undertaken by Dr. David- Etlin' and I now have. his report. Ba'sed on Dr. Etlin's report, Mrs. Ei-Batrik appears to have two major groups of Problems which are inter-related and have 13 resulted in excessive absenteeism. She has had numerous motor .vehicle accidents with injuries including injuries to her neck and back. 5ow back Pain has been a major cause of her absenteeism. She also indicated that "she feels her main problem at the present time is her relationship with her supervisor, which she feels is very Door. She feels that the major' Drob!em is a personality problem with the supervisors, and not th~'. medical Droblems which she has .... ...this is contributinc, likely, to her anxiety and. depression". This is in addition to other inter-personal Drob!ems. Certainly tension and anxiety, whatever the cause, can exacerbate gain symptoms which results in increased episodes of disability. In fact, she indicated "that the back pain comes in spasms in the lower back, some days she will be Pain-free for hours, but a5 other' times, every'thing tenses up". Dr. Etlin concludes his report as follows: "This patient would be likely classified as having some mechanical back Pain and a chronic pain syndrome. As this Pain has been coinc on for many years, the chances of complete recovery are quite Door, although i would agree that a coanitive behavioral approach is Certainly Worth a t.rv and is' really her only held for sianificant improvement. As the patient herself admits, the major problem she is having with absenteeism and difficulty work is a personality problem with the workplace and with her supervisor. I think the chances of improvement with her low back pain are directly related to her getting out cf present difficult situation at work. I would recommend very stronc!y that she get involved in a rehab manacement program and try to find otherwise mure suitable empl'oymen~. If she continues to work in the same workplace, likely ~he tension and irritation will continue to magnify her chronic pain problems. Certainly her present job involves no lifting' at work and physically is within her limitations. Once again, I feel the major problem has to do wi~h personality and the dynamics of the workplace, and I think it would be in her best inSerests and her employer's best interests if she could be reassigned to another area. Otherwise~. she is coing 'to continue to have further Problems in the.f'uture." Based on Dr. Etlin's report and the information from your ministry, Mrs. E1-Batrik .appears to have a' sicnificant physical Drob!em which in itself would not prevent regular attendance and Derfo. rmance of her present duties but which is intensified by tension caused throuch inter-uersona!~ problems resulting in inability to a{tend work. .Mrsl E1-Batrik should be encouraged to continue with A. To Walton and Ass. but also should be encouraaed to seek counselling, perhaps from a psychologist to help her overcome her anaer and deal in a more' constructive and acceptable manner with inter-personal problems. Reaardless of whether or not.she makes an effort to overcome her problems, the ultimate decision concerning her continuing employment must rest with your ministry, Mrs. E1-Batrik should be mad~ aware of this report and in fact it should be discussed with her and she should be ~ven a copy- which she should take to her own physician for his comment and assistance. Also, I have no objection to her physician obtaining a copy of the full report 'from Dr. Etlin, always, of course, with his patient's permission. You will note that I have sent a cody of this memorandum to Dr, Etlin in case I have misinterpreted his report and for his information. Please find enclosed Dr. .Etlin's account for his services which is forwarded to you for payment. Please do not hesitate to contact me if I can clarify the above or be of any further assistance in'this matter. (signed) H. R. Chambers, M.D. Medical Dfrector ,~~.~ Dr. Et!in was cuoted as identifying t~e major problem which tri.scered the ~rievor's chronic pain syndrome, and hence her' absenteeism, as stress due to a u. ersonality ~rcb !e:'.~ at workplace and her supervisor. The chances for imorovement in .ea~< rain, he stated, were direct!v rel'ated to her ¢.~ettinc3 out cf her "present. difficult situation at work." He stroncly re a rehabilitation manacement orocramme and~. a.n a.r_~em~t to fiu~ "otherwise more suitable em~iovment" for the crievor. On Aucust 29, 1988, -~'fr. 'Kvtavko forwarded Or. Chambers summary of Dr. Etlin's reuort to the crievor and in line ..with his letter dated April 19, 1988. notified the qrievor that a meetinc would soon be arranged to review with her the results of Dr. Etlin's examination, including determining whether to continue her employment with the Mental Health Centre. He also sucaested to the qrievcr that she ought to have her own fami!v doctor review 5he report and comment uoon it.. This meetinc was held on Semtember 7. 1988: however, the grievor was not in attendance, Auparent!¥ she was off ill that day. However, Messrs. Lemieux, and Lanahan, the Union representatives, were in attendance. Mr. Kytayko testified that at this meeting he explored the possibility for alternative placement for the crievor but that this seemed quite remote. He reviewed the vacancies for the faci!itv with Mr. Callas and there simply were no vacancies suitable to the Grievor, civen her skill level and qualifications. Mr. Kytavko stated that in doinc this, he reviewed ail vacancies, not just~those in the nursina department. AccordinC to Mr. Kvtayko, Mr. Lemieux than said that there was no uoint in coinc on without the crievor, and thereafter the meetinc ended. After that, Mr. Kvtavko testified~ he considered all the circumstances, including the medical report. He said that it seemed certain that the Institution could not continue to emD!oV the grievor. She had a lonG-standing history of unreasonably high absenteeism. The illnesses that p!a~ued her seemed varied. She had been uiven the opportunity to Go to Walton. The prognosis from the medical report was .Door, with its indication of an intermingling of a personality conflict with her medical nrob!ems. Her history and prognosis were Door, and there was no reasonable alternative posi'fion to place the crievor in. In light of all of these considerations, Mr. Kvtavko ~tatad, he concluded that there was no indication that the Grievor would ever become a regular attender. In light of all of these considerations, Mr. Kyt~yko testified, he decided io terminate the ~rievor. On September 12. 1988. Mr. Kvtayko wrote the f~llowinc letter of termination to the grievor and had it hand-delivered to her home address~ Dear Mrs. E1-Batrik: On A~ril 7th, !988, we met once again to review you~.~.. attendance at work and your ability to report for duty on a reqular and consistent basis. As you knoW~ there have been serious concerns in the uas~ over your unusually high rate of.absenteeism. This culminated in a hearin~ held on January 6th, 1987, to consider the feasibility of continuing your'employment with the hospital. As a result of this hearing, and in order to orovide you with one final opportunity to improve your attendance record, we acreed to a contract for a 12 ~cnth period. You agreed to resign from work if your absenteeism exceeded 14 days. On January 31st. 1988, this agreement expired. Between January and April 1988, you'.were absent from duty on a number of occasions for a total of 13 1/2 days. During the hea~in~ on April 7th, 1988, you felt that your rate of absenteeism would improve. However. based on your past ~ecord, I decided that you should undergo 'a mandatory medical examination in order to determine your prognosis for establishinc an acceptable level of attendance in future. Based on the information provided'by Drs. Chambers and 17 Et!in, it is hiuhly unlikely that you will be able to attend work on a recular and consistent basis. In'fact, since April 7th. 1988, you have been absent from duty for. a further 19 days. In just over eicht months, you have been absent from work a total of 34 days. As you know, I 'attempted to meet with you and ~vour reoresentative on September 8th, '1988, to discuss the feasibility of continuinc your emDioymen~ with the Men~! Health Centre, however, you called in sick on that day. You are now indicating that you will be off duty indefinitely. In view of certain statements made in Dr. Chambers' medical report, I have considered the possibility of assicninc you to another position. However, we have been unable to find a position which would be consistent with your cualifications and not report to Senior Nursing Administration. For these reasons. I regret to advise you, that in accordance with Section 22(1} {3) of the Public Service Act, that your employment with the Mental Health Centre. Penetanguishene, will be terminated effective September 23rd, i988. Please note that this is a non-ounitive dismissal for innocentab~enteeism and simp!v reflects the fa~{ that you a're unable to meet. your employment ob!ications, on a consistent basis. Should you wish to crieve this matter, you are entitled to todce a qrievance in accordance with Article 27 of the Collective Acrement. Yours truly. (sicned} GeorGe J. Kytayk©,. Administrator. Effective September 23, 19'88. the grievor w~s dismissed for innocent absenteeism. On September 20~ 1988, the ~rievor filed the grievance !eadinc to the present proceeding. In the crievance, she requested ~s redress that' she be reinstated to her former Dositicn with full compensation for loss of may and credits. 18 III On July 12, 1990, the hearinq of the evidence in the present arbitration was completed. At that time, the parties acree~ that final arguments Would be made by way of written submissions. The're was some indication that both parties anticipated that discussions be.tween them might render unnecessarV the issuance of.,an award in th~ 'matter: however, on September 20, 1990, counse~ for the Employer notified the Board that the discussions did not bea~ fruit. and that a final decision would have to be rendered in the fcrm of an award. The written argument submitted by counsel for the Union set forth the issues in this matter as follows: ..-.... It is' the submission of the Grievor and the Union tha,~..~ ..the Grievor has been un.justly dismissed for the fo!lowinc reasons: (a) firstly, on the cround that Article 52 of the Collective Acreement creates a richt to' leave with DaY for. absences Of uD to 130 days in a year due to sickness or in4ur¥ and that dismissal for innocent absenteeism amounting to less than 130 days in a calendar veer violates Article 52 of the Collective Acreement: secondly, on the cround that the Employer cannot dismiss an emDlovee for innocent absenteeism if the effect of th~ dismissal is to deprive the Grievor of benefits provided bv the Collective Acreement: and {c) thirdly, on the cround that. even if the Emmlover may otherwise dismiss an employee for innocent absenteeism, the Employer in this case had no ~rounds for dismissinc the Grievor for innocent absenteeism given the relevant record of absenteeism and the positive prognosis for ... attendance in the future from Dr. Chambers'. 19 it will be convenient for the Board to address the issues in this matter in the foregoing order: Ia) The Effect of Article 52 of the C. qllec~tiv.e A~eement: Article 52 of the Collective AGreement reads, in pertinent part, as follows: Article 52 - Short Term Sickness Plan 52.! An employee who is unable to attend to his duties due to sickness or injury is entitled to leave-of-absence with pay as follows: (i) with regular salary for the first six /61 workino days of absence. Iii) with seventy-five percent {75%) of reoular sa!err '~ - for an additional one hundred and twenty-four (1247 'workinc days of absence in each calendar year. 52.2 An emoloyee is not entitled to leave-of-absence with ~av under section'52.1 of the Article until he has comuleted twenty (20) consecutive working days of employment. ~ ~ 52.3 Where an employee is on a sick leave-of-absence which commences in one. calendar year and continues into the following calendar year, he is not entitled to leave-of- absence with pay.under section 52.1 of this Article for more than one hundred and thirty (130} working days in the two (2) years until he has returned to work for twenty (20). consecutive workinc days. 52.4 An employee who has used leave-of-absence with Day for one hundred and thirty (130) working days in a calendar year under section 52.1 of the Article must comu!ete twenty (20) consecutive workinc days before he is entitled to further leave under section 52.1 in the next calendar year. 52~5 The Day of an emolovee under this Article is sub4ect to ' deductions for insurance coverage and pension contributions" that would be made from recular oay. The emolover-oaid portion of all payments and subsidies will continue to be made. 29 52.9 Where, for reasons of health, an emolovee is frecuentlv absent or unable to oerform his duties, the E~uloyer may recuire him to submit to a medical examination at the exoense of the Emu!oyer.- 52.10 After five {5) days absence caused by sickness., no leave with Day shall be allowed unless a certificate of a !ecaily qualified medical practitioner is forwarded to the Deputy Minister of the ministry, certifyin~ that the -employee-is unable to attend to his official duties. Notwithstanding this provision, where it is suspected that there may be an abuse of sick leave, the Deputy Minister or his desicnee may require an employee to submit a medical certificate for a period of absence of less than five (5) days. 52.12 For the purposes of this Article twenty (20) consecutive working days of employment shall not include vacation leave-of-absence or any leave without pay, but days worked before and after such leave ·shall be considered cons'ecutive. Notwithstanding the above., where an employee is unable to attend 'to his duties due to sickness or iniurv, the dave worked krefore and after such absence shall not be considered consecutive. It was' the- submission of Union counsel that under ~he provisions of Article 52, an emDtoyee had a ricer to leave with DaY for innocent absences due-to illness or injury of uo to 130 days in a calendar year. This meant, it was submitted, that it would be a violation of Article 52 to dismiss any employee for innocent absenteeism of less than 130 days. Re~erence was made to Re Jones and Ministry of... ~o~ectiona! Services, (1983) GSB ~537/82 (Jolliffe) and Re.~reevan and MinistrY'of Health (1985), 21 L.A.C. (3d) 432 (Verity). Counsel for the EmDlover, on the other hand, submitted that 21 the arcument that Article 52.1 of the Collective' Agreement constituted an absolute bar to termination for innocent absenteeism was never an established principle in the jurisprudence and, in fact, was exDressl? rejected in two recent decisions of the Grievance Settlement Board, Re Krishnamurthy and Ministry of Government Services (198S). GSB ~1479/87 (Ratushn?) and Re Ruuert and. Ministry of Correctional Services, G.S.B. ~372/84 In the Krishnamurth? case, Vice-Chairman Ratushnv' addressed the issue raised by counsel for the Union as follows: Counsel for the Grievor arcued that Article 52.1 cf the Collective Agreement is a bar to dismissal for innocent absenteeism unless such absences exceed the 130 day Qeri6d provided for leave with Day due to sickness or injurv. In support of. this ProPosition, he relied upon the foilowinc comments of Vice-Chairman Jolliffe in OP.~EU. (Jo~e.s) and MCS IGSB 573/82): Our second ground for uuholdinc the grievance is obvious: the collective a~reement expressly contemD!ates 5ha~ "innocent absenteeism" calls for compensation rather than the extreme penalty o~ dismissal. (At Mr. Jolliffe took a similar approach in OPSEU (Coutinq) and MOH (GSB 573/~3: By thi~ late date in the history of tabour-m~nacemen~ relations, it should be clear on all sides %hat innocen~ absenteeism, whether bv reason of disease or injury, does- not constitute %ust cause of dismissal... (At This arcument was addressed by Vice-Chairman Gorskv in OPSEU .Rupert) and MCS {GSB 372/84) where he pointed out that the basis for the Jones decisi6n was the f~ndinq that the absences of the crievor were not excessive. Indeed, ~n the Coulinc case. Vice-Chairman Jo!liffe had added to the above comments. the foltowinc.: There may be extreme cases of Drolonced ~bsence and incapa'city makinc it impossible for 'the emulovment relationship to continue. This case, however, never cam near that criterion. (At D. 9). 22 However~ the 'basis of the employer's position in this crievance is, essentially, that the absences of the Griever were so eXcessive as to establish that he will not be able fulfil his employment obliaations in future. In our v~ew, the D~esence 'of an arti'cle in the Collective Agreement Drovidina for paid sick leave, such as Article 52.1, is not a bar to dismissal for "innocent absenteeism" where past attendance and the Dro~nosis for future improvement are so weak as fundamentally to undermine the employment re!ationshiD .... Id, at pD 2-3. It was concluded .~that Article 52.1 did not bar dismissal for innocent absenteeism, a cround for dismissal which depended not only. upon poor attendance in the Past by -also a Droonosis for future imDroyement which was so weak as to undermine the emulovment relationship. We acree with this determination. The provision of. a si~k leave Dlan in a collective aoreement, we believe, falls far short of evidencinc an intention on the Dart of the parties to retain in employment em.u!oyees whose illnesses are so chronic as to have .made them Door attenders in the Dast with no likelihood of imDrovamsnt in the foreseeable future. In such cases, the ~otential consequences to the Employer -- in terms'of disruDt~.qn of morale in the workDlace, inefficiency of production, and supervisory headaches -- can be so severe as to recuire sicnificantl,~ ~.ore concr, ete evidence of intention to retain in emD!oyment-employees with such Door DrosDects for the future than a sick leave provision which, as is the case here, includes a 130 day caD. 23 b. Deorivation of Benefits Under Article 52 by Virtue cf Dismissal for Innocent Absenteeism of Less than 130 days Der year: Uoon th{s issue, the submission on be.half of the crievor was as follows: It is further submitted that the EmD!over cannot dismiss an emD!oyee for innocent absenteeism if the effect is to deprive the Grievor of benefits provided bv the Collective AGreement. That is, even if Article 52 is not seen as an absolute bar to dismissal for innocent absenteeism of less than 130 davs Der year in terms o~ it heine an .acreement between the ~parties Drecludinc such grounds for dismissal, it is submitted that it is a benefit that the parties have agreed accrues to emuloyees uDon illness or injury and there can be no dismissal of the Grievor .for illness or injury thus de'Driving them of that right. The cist of this submission, then. was that under Article 52 the arievor was entitled to a benefit ccmorisinc 130 days Der year of innocent absenteeism, and the Emolever could not deorive bet of this benefit by dismissin~ her at a ooint when the total of her absences in a calendar year was less than 130 days. ' In support of this submission, the Union cited Re DeHaviltand Aircraft of Canada Ltd, and U.A.W.. Local 112 (!982).~ 9 L.A.C. <3d) 271 (Rayner)_ and Re Government of the Province of Alberta and Alberta Uhion of Public EmDlovees (!987), 29 L.A,C. (3d) 218 <Tadman~. This submission seems to us to be just another way of muttin~ 24 the argument that Article 52.1 operates as an absolute bar to dismissal for innocent absenteeism of less than 130 days Der year. We have already rejected that argument on the Same basis. ~S. in the Krishnamurth? case. suDra. A different issue mich~ have been raised if the submission were couched in the form cf a claim for comDensation arisinq out of beinc deprived of the balance of the 130 days Daid sick leave provided in Article 52~ however, such a claim was not pursued (riQhtlv. we think) in the Dresent case. c. The Sufficiency of the Employer's Grounds-fo~ Dismissinc the Grievor for Innocent Absenteeism: The submissions of the parties upon'this issue were divided under two sub-headinGs: i) The weight to be attributed to the record of 'absenteeism which the crievor comDi!ed Prior to employment acreement of January 16, 19~7: and ' ii) The ~ro~nosis for recular attendance in the future. (i) The Weicht to be Attributed to the Pre-EmDlovment Contract Record: It was submitted by counsel for the Union that when the Emu!o~e~.entered into the emDlovment contract with the ~rievor and the Union in early 1987. the EmD!oyer essentially ccndoned this' Dast absenteeism in return for the crievor's promise to 25 meet the EmPloyer's attendance expectations for a one-year period or else resicn. Ifwhat was meant by "condonation" in this submission was a "wiDinc clean" of the slate so as to bar consideration of the crievor's Prior absenteeism as at least a circumstance to be taken into account in resDondinc to her more current absenteeism problems, we think that the submission would ~o tea ~r. The ~r~evor's ~r~ar record of absenteeism and her record of absenteeism durinc the course of the employment contract are, we think, circumstances which must be considered in formu!atinc an adecuate response to the arievor's subsecuent absenteeism. This..is not a case where the s~bsecuent absenteeism emanated from a separable source. It was part of 'the same pattern and, as the crievor herself testified, derived from the same fundamental oricin -- the automobile~accident of November. 1984. Wha~ this evidence showed was an employee whose Pattern of absenteeism initiallv derived from a we!l-estab!ishsd chronic pain syndrome. As was noted by Dr. Hall in his letter dated May !5, 1986, this syndrome did not emanate from any Physical source but from the crievor"s own view of he~self as disabled. He said, "So !onc'as this matient feels that she is incauabte of continuinc to work recu!arly, she will simDie not be. able to do so. In a very real sense, this is a self- fu!fi!lin~ DroDhecv." Dr. Hall also indicated that the "' ~rievor's bat't!es with the Workers ComPensation 8oard and the 26 Employer were contributinc to stress in the crievor. These findinqs were not ~oo different from those reached bv Dr. Etlin in Aucust, 1988. The only real difference· it seems, was that, based upon his interview with the ~rievor, Dr. Etlin considered the stress the ~rievor felt in resdonsa to the Employer's efforts to held her improve her a~tendance record to be a more pronounced factor, and, in fact, a "major problem" in the persistence of the grievor's chronic pain syndrome. Both DoCtors Hall and Etlin rec. oqn~zed that to overcome chronic pain syndrome the. patient m~st make intensive efforts tO alter her at.Situde'toward her own caDabi~l, ities. To assist the orievor in this, both recommended"intensiv~ Droqrammes' of therapy. Dr. Hall recommended treatment with A. T. Walton and'' · ~ Associates and Dhvs±other~Dv with the Canadian Back Institute.. Dr. Et!in recommended through the medium of Dr. Chambers cSntinuation' with A. T · Walton & Associates and osvcho!ocfcal counsel!in~ to held the ~rievor overcome her - an~er and "deal in a more constructive and acceptable manner with inter-persona! problems" We' note the concordance between these recommendahions b~cause we are convinced on the record that the crievor showed herself to be unwillinc to be unwilling to follow Dr. Hall's 27 recommendation that she make the intensive effort necess, arv to overcome her chronic pain syndrome. When the Employer co- operated by sendin~ her for treatment to A. T. Walton & Associates~ she discontinued her participation in the programme after 3'to 4 visits and did not, it seems, ever tell the Employer that she had stoDmed going.- The will to mersevere did not seem to be there. This is not to say that the Grievor lacked will power. She demonstrated that she possessed areat will mewer when she managed to turn in only 13 1/2 days of absenteeism in the year covered by her emm!ovment acreemen5. However, as soon as the employment agreement terminated, her will seemed to evaoorete and, as the Gri~vor said, she did not seem to be able to make it into work for "whatever r'eason". ii. Proanosis for Regular Attendance in t~e' Future: We stress the Dart olayed by the Grievor's own "will" not only in overcominc her chronic main syndrome but also in making efforts to meet the Emmlover's reasonable attendance expectations,, because the mroanosis for regular attendance ih the future on the Dart of this Grievor seems to deuend virtua!lv entirely upon the exercise of this cualitv. It seems clear from the summary which Dr. 'Chambers made 28 of Dr. Etlin's report that Dr. Etlin'was convinced that if the crievor continued~'to work in-the same workplace, the tension and irritation would continue to magnify her chronic pain problems. In short~ it seemed unlikely that because of her own demoralization in her job at Penetanguishene, the arievor would be able to find the will to make. the effort to overcome her difficulties. We understand that it was for this reason that Dr. Et!in concluded, "I think it would be in her' best interest and in her employer's best interests if she could be reassianed to another area. Otherwise, she is aoing to continue to have further oroblems in the future.". Undoubtedly, this oroanosis indicated that the srievor could become a recular attender in the foreseeable future if she were tc pursue therapy with A. T. ~.~alton & Associates, receive osychotheraDy to hel.o her. deal .with her ancer, and be reassigned to another area with a different set of personality and Workplace dynamics. In ii~ht of this assessment, it seems Certain that if the Employer had ,made a reasonable search for alternative positions and found none which was reasonably acceptable, it would have been a proper response to dismiss the crievor for innocent absenteeism. 29 We, hcwever, find 5hat the search performed by the Employer in response tc Dr. Et!in's su~cestions fell short cf this mark. Mr. Kv~avko stated that he reviewed all of The vacancies for the facility and could not find any which were suitable to the Grievor, aiven her skill level and qualifications. None of these vacancies, however, was out to the ~rievcr or the Union. The ~udGment of whether a particular vacancy might be acceptable or suitable to the arievor solely was made by Mr. Kvtayko. We think that the ~uesticn of suitability or acceptability should not have been left to Mr. Kytayko alon~. Certainly it was within Mr. Kytaykc's province to 'make the initial survey to identify ~potential olacements for the · crievor. But once those closest to the mark were identified, in the sense of apoealinc to her skill level, cuaiification$" therapeutic needs and mhvsica! location, they should have been submitted for the~consider~tion of the crievor and her Union reoresentatives. It seems likely that out of this process there might have emerced a reasonably acceotabte nursinc oosition withi5 the Ministry. even if it did not recuire the hioh-skill level which the Grievor mossessed. In this regard. we note the crievor's own testimony that after her termination, she ~Gan performing recular nursing duties on a Dart-time basis through nursin~ recistries in the Toronto and Ottawa areas. 3O !V. The Board can well appreciate the frustration th~6'--the Employer must have experienced in dealin~ with the crievor's absenteeism. We find that, despite the grievor's impression to the contrary, the crievor's supervisors en~aced in only reasonable efforts to assist her in overcominQ her absenteeism problems and were not in any way attempting to antagonize her by singling her out. Further, it seems to us that the crievor must bear Dart of the resDonsibi!itv for ~eneratinc the predicament which lead to her dismissal. As she demonstrated durina the one-year employment acreement, she had the abil,'itv to exercise her will Dower to achieve certain orescribed coals. For some reason, however, she. did not make the i'ntensive effort which she knew.was necessary to overcome her chronic Pain syndrome, and, in fact, dropped out of the'' programme Of the A. T. Walton Clinic soon after she Started. In light of these competing considerations, it is the conclusion of the Board that the crievor should be conditionally reinstated with full seniority but without back Day to ~ reasonably a6ceptable nursing position within the' Ministry other than her former position at Penetancuishene. The conditions which must be fulfilled are enrolment and reaular participation in the procramme of 'the A. T. Walton Clinic, with confirmation of each visit to the Clinic su~olied to the Emo-loyer as required, and enrclment, in a 31 counselling Drocramme, oerhaos with a osvcholosist, to held her overcome her an~er and deal in a more constructive and acceptable manner with inter-persona! Drob!ems. once acain with oroof cf attendance civen to the EmPloyer as required. The crievor will be required to participate in such Drocrammes until she is certified by the A. T. Walton Clinic and her counsellor as no lencer requirin~ treatment. The reinstatement of the crievor should occur within 60 days of .the date of issue of this award,~ and the Board exDects the griever and the Ministry reasonably to co-ooerate in meetinc-this goal. We will retain jurisdiction Dendin~ implementation by the parties, DATED at London, Ontario this 8th day of November R. J. Roberts. Vice-Chairperson I. Freedman, Member "I DISSENT" (Dissent attached) M. O'Toole. Member 1274/88 DISSENT I have carefully read the decision of the majority. While I concur in their response to submissions a) and-b) of the Union, I must dissent from their disposition of submission c). That was to re-instate the grievor on certain conditions. For reasons which follows, it is my opinion that this disposition amounts'to an unreasonable exercise of discretion. The majority outline the basis for their disposition at pages 27-31. It may be broken down into the following key components: 1) Dr. Etlin's prognosis that the grievor could become a regular attender in the foreseeable future if she. ~ere to receive physical therapy fromA. L. Walton, psychotherapy and a change of work assignment. 2) The failure of the employer to make a reasonable Search for an'alternative acceptable assignment. ~ In my opinion the analysis of'the majority with respect to each of the above components is seriously flawed. It will be convenient to address them seriatim as follows. Dr. 'Etlin's Prognosis I have little difficulty,, as do the majority, in accepting the validity of Dr. Etlin's prognosis, recognizing that it is premised on conditions, one oft:which is extremely problematic :~ in the case of the grievor, namely, successful completion of a course of theraPY with A. L. Walton. It is problematic because, as noted by Dr. Hall in his report-, "an intensive · effort" i~ necessary to overcome chronic pain syndrome. The majority appear to find that there is a reasonable likelihood of the grievor making such an effort. .In my opinion this finding is contrary to the vast weight of the evidence and is therefore unreasonable. The majority base this finding almost entirely on the fact that the grievor was able to comply with the attendance requirement in the employment agreement. This was a .... · demonstration of will-power, according to the majority. The ~grievor herself did not characterize it so favourably. She stated that while on the contract she was terrified of losing her j.ob. She thus appears to attribute her success to fear rather' than will-power. This admission seriously undercuts the validity of the majority's explanation for her success. Moreover, the grievor barely succeeded in not breaching the contract. Accordingly, her success hardly inspires confidence in the strength of her will power. Finally, the grievor displayed almost no will power at all in her previous course of therapy with A. L. Walton. She quit soon after she started because she couldn't take the pain and never informed her employer. In view of the grievor's poor track record it does not seem reasonable to conclude that there is any likelihood of the grievor successfully completing a course of therapy at A. L. Walton. Moreover, the Union.did not produce any up-to-date medical evidence bearing on the grievor's physical and mental fitness to return to work. Had there been medical confirmation of some efforts by the grievor since her termination to overcome her pr6blems by pursuing a course of physical and mental therapy, the relief granted by the majority might have been appropriate. In the absence of such confirmation their relief lacks any rational support. The Search for an' Alternative Position m The search for an alternative position was conducted on behalf of the employer by Mr. Kytayko who concluded that suitable vacancy existed at the facility. The majority find fault with his conclusion on the ground that he did not consult .with the grievor or the Union prior to reaching it and that, 'had he done so, a reasonably acceptable nursing position within the Ministry might have emerged~ This expectation,~however, appears quite unrealistic to me for several reasons. First, the Union refrained from cross-examining Mr. Kytayko either on the scope of his search or on the correctness of his conclusion. Second, the grievor in her evidence did not-claim that there existed an alternativ~~'~ position that was acceptable to her and that she was capable of performing either at the facility or in the Ministry. Thirdly, while the majority, are encouraged in their expectation by the grievor's testimony that she regularly performed nursing duties since her termination, there is-no evidence as to the nature or exact frequency of these duties or the level of her performance of same. Moreover, these duties were performed on a part-time basis. Accordingly, these duties fall short of establishing that the grievor is capable of resuming a full-time nursing position with the Ministry. 'Having regard to the foregoing, I would have found that the ~mployer made a reasonable search for alternative positions and found none which was reasonably acceptable and that it, therefore, acted properly in dismissing the grievor for innocent absenteeism.. Accordingly I would have dismissed the grievance. M. F ~ O 'TQOLE - MEMBER