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HomeMy WebLinkAbout1988-1465.Mesias.89-09-01 ONTARIO EMPJ_OY~;S DE LA COURONNE CROWN EMPLOYEES DE L'ONTARIO GRIEVANCE C,OMMISSION DE SE3'rLEMENT REGLEMENT BOARD DES GRIEFS 180 DUNDAS STREET WEST, TORONTO, ONTARIO. MLG 1Z8 - SUITE 2100 TELEPHONE/T~-L~-PHONE 180, RUE DUNDAS OUEST, TORONTO, (ONTARIO) M5G fZ8 - BUREAU 2~00 (41~) 598.0688 1465/88 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD Between: Amalgamated Transit Union Local 1587 (Raul Mesias) Grievor - and - Toronto Area Transit Operating Authority Emp 1 oye r Before: N.V. Dissanayake Vice-Chairperson I. Thomson Member D. Montrose Member For the Grievor: S. Clarke Vice-President Amalgamated Transit Union Local 1587 For the Employer: G.W. Lodge Manager ~{uman Resources Go Transit Hea_ring: June 28, 1989 AWARD This is a grievance wherein the grievor, Mr. Raul Mesias, claims that he has been discharged without cause. At the commencement of the hearing, the employer raised an objection to the arbitrability of the grievance on the basis that it was untimely. The Board orally ruled that by virtue of section 18(2)(c) of the Crown Employees Collective bargainin~ Act, any time violation did not preclude the arbitration of a grievance alleging dismissal without cause. (See, Re Keeling, G.$.B. 0045/78, application for judicial review dismissed, 30 O.R. (2d) 662, Div.Ct.) On the merits, the Employer adduced evidence through three witnesses, Mr. Luke Togo (Plant Supervisor), Mr. Jim Stockall (Plant Manager) and Mr. Harry Flood (Staff Relations Officer). At the closing of the Employer's case, the union elected to call no evidence. After hearing submissions the Boa'rd orally ruled that the grievance is allowed. This award is to confirm, and to provide reasons for that ruling. The grievor commenced employment with GO Transit in January, 1985 as a part-time janitor. On October 3, 1988 he transferred to the Employer's maintenance facility at Willerbrook as a serviceman and held this position until his discharge on January 20, 1989. In October, 1988, the grievor requested for 8 weeks of vacation commencing in December 1988. This unusually long period of vacation was requested on the grounds that he had to attend "to some very important legal family transaction" because of the death of his father. The management was quite sympathetic to his request, but due to a number of reasons not relevant here, concluded that eight weeks cannot be approved. After some deliberations, he was allowed five weeks of vacation with three statutory holiday lieu days tacked on. Accordingly he had approval for the period Thursday, December 8, 1988 to Monday January 16, 1989 inclusive. The grievor left for Chile on December 8, 1988 and was due back at work on January 17, 1989. On December 16, 1988 the grievor called his supervisor Mr. Luke Togo from Chile and in a brief conversation, informed that he was unable to report to work on January 17 as agreed because he was sick. He followed up with a telegram to Mr. Togo stating "For sickness ! can't be back to work until Feb. 03. 89. I am bringing a doctor certificate". Mr. Togo brought the telegram to the attention of the Plant Manager, Mr. Jim Stockall, who in turn discussed the matter with the Human Resources department and decided that the grievor should be discharged. Accordingly on January 20, a telegram was sent to the grievor at his address in Chile. This read: Due to taking a leave of absence without approval; presenting a reasons [sic] for not reporting for duty; and your past record, all of which are unacceptable to the Company, you are hereby dismissed as of this date - 20 January 1989. Please return all GO Transit property and your GO Pass. Upon receipt, final payment will be made. A letter dated 20th January, and containing the same wording as the telegram, was mailed on February 7, to the grievor's address in Canada. Upon his arrival in Canada, on February 3, the grievor reported at the workplace. He handed in his equipment and as stated in his telegram, he met Mr. Togo and handed a doctor's certificate dated February 1, 1989 which was written in Spanish on the letter-head of Dr. Manuel Diaz Morales. According to a certified translation filed in evidence, it reads: Dr. Manuel Diaz Morales Urologist Member of the Chilean Society of Urology Iquique CERTIFICATE The undersigned doctor certifies that on Jan.12/89 Mr. Raul Mesias Zamora was affected with left renal colic and hematuria. The radiologic test showed a lithiasis at the left pelvic ureter of calcic nature of 5 mm. diameter. Medical treatment was required. On Jan. 30/89 he ejected a urinary stone, with the above said characteristics. The chemical study showed that it was made of 80% oxalate of calcium The radiologic control did not show any other stones. The metabolic study show the possibility of repetition of lithiasis. signed: Dr. Manuel Diaz Morales Iquique, Chile, 1st of February 1989. The production of the medical certificate did not cause the Employer to change its decision to discharge the grievor. The Employer submits that the grievor was discharged pursuant to Article 7.2(c) of the collective agreement and also on the basis of the grievor's "past record". Article 7.2(c) This article reads: 7.2 An employee shall lose all service and seniority and.may 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 acceptable to the Employer. There is no doubt that the grievor was absent for a period of more than 3 days beyond his authorized vacation period. Therefore, the Employer can apply the provision if he did not either notify or had no justifiable reason. Since the grievor called Mr. Togo to notify of his absence, the only ground relied on by the Employer is that the grievor had no justifiable reason for the absence. The Employer's own evidence is clearly that under the collective agreement sickness is a valid reason for absence. Mr. Stockall unhesitatingly conceded this under cross-examination. The evidence also is that if the absence exceeds 5 days, the employee is required to produce a doctor's certificate. In support of its position the Employer relies on what may be termed as two suspicious circumstances. First, before his departure, the grievor had delivered to Mr. Stockall's office, a copy of his travel itenery. He was travelling on a charter class return ticket. The return date is indicated as February 1, 1989. Thus the Employer submits that the grievor had planned, even before his departure, to return on February 1, which was beyond the authorized vacation period. Secondly, when the grievor was informed that he had to return to work on January 17, the grievor inquired what would happen if he did not so report and was told by Mr. Stockall that he would be dismissed. In effect the Employer is urging the Board to infer from these circumstances that the reason for absence offered by the grievor is a fabrication. In view of the Employers' prior knowledge of the grievor's travel itenery and his inquiry about the consequences of not reporting on January 17, it is not surprising or unreasonable that the Employer's suspicions would have been a~oused when informed that the grievor was not returning on the agreed upon date. However, the grievor had informed in the telegram that he was sick and that he would be bringing a doctor's certificate. Despite the suspicions, the Employer had no way of knowing that the grievor was not in fact sick. Yet the employer discharged the grievor, even without giving him the opportunity to return to Canada and substantiating his claim to illness. Besides, when he did return he produced a medical certificate. Both Mr. Stockall and Mr. Flood conceded that they had no reason to question the certificate or the fact of his sickness. Once the Employer accepts as it did, that the grievor was in fact sick and that sickness is a valid reason for absence, we see no basis for it to claim at the same time that the grievor has not given a justifiable reason for his absence. In his submissions, Mr. Lodge suggested that, although the grievor may have been sick the doctor's certificate does not state that he was hospitalized or otherwise immobilized so as to be unable to travel. While that is true, in our view once the grievor provides reasonable evidence of illness as he did, if so desired, it was clearly'open to the Employer to investigate the matter further. It could have written to, or telephoned the doctor to request more information. At the very least, it should have required the grievor to provide more detailed medical information from the physician who treated him. While no evidence was led to this effect, in his submissions Mr. Lodge stated that in relation to the unemployment insurance claim, the grievor was requested to produce evidence of hospitalization or proof that he had sought reimbursement for medical expenses from O.H.I.P. and that he failed to do so. Firstly, the absence of proof of this information does not necessarily indicate that the grievor was not sick - a sickness which has been verified by a doctor's certificate. Besides, Mr. Lodge's submission is redundant because both Mr. Stockall and Mr. Flood very clearly testified that they did not question the contents of the Doctor's certificate. The Board also notes that the Employer discharged the grievor before it had an opportunity to see what the doctor's certificate stated, despite being aware that the grievor was bringing a doctor's certificate to substantiate his illness. Besides, the evidence is that the Employer was entitled to require the grievor to submit to a medical examination upon his return to Canada. This was not done. What all of this appears to indicate to the Board is that once the decision to discharge was made based on the suspicions, the Employer was not at all interested in finding out what reasons the grievor would offer in justification for his absence. What the Employer had was a mere suspicion and nothing more. Thus, Mr. Stockall and Mr. Flood both agreed in cross-examination that the price of a charter class return fare may be substantially less than the price of a regular one way fare and that it was possible that the grievor could have intended to return by January 17 without using the return portion of the charter fare. In any event whatever the suspicions were, once the medical certificate was submitted, those were contradicted. Since the persons's who made the decision testified that they had no reasons to question the validity of that medical evidence and that sickness is a valid reason for absence under the collective agreement, it must necessarily follow that the grievor did provide a justifiable reasons for overstaying his vacation. Thus the Employer was not entitled to discharge him under article 7.2(c). Past Record In his final submissions Mr. Lodge for the Employer stated that by his past record, the grievor had broken his "contract of trust" with the Employer and that made his credibility questionable. He further stated that the grievor's absenteeism record was "atrocious". Despite these claims made during submissions, absolutely no evidence was led by way of documentary or vivo voce evidence to establish this past record of the grievor. The only reference in evidence to what may be related to a past record are as follows: Mr. Togo and Mr. Stockall testified that in his previous location the grievor had requested for a lengthy vacation and had been denied. This evidence proves nothing. Mr. Stockall asked by his own counsel whether he was aware of the grievor's "prior record" replied that he did not. Mr. Flood, the Human Resources Specialist who was involved in the decision to discharge, was asked in chief -- 9 -- whether the grievor had a good or bad record. The response was "his work performance is not so much in question as is his attendance". He made reference to a prior incident of overstaying a vacation some l~ years ago but gave no details. Assuming that the grievor had an atrocious attendance record as claimed by Mr. Lodge, the critical fact is that there is not an iota of evidence that any of the absences were culpable. It is trite law that an employee cannot be disciplined for blameless absenteeism. (See, Domglass Inc., [1988] 33 L.A.C. (3d) 88 (Dissanayake)). On the contrary, under cross-examination Mr. Flood stated that prior discipline was not a factor considered in the decision to discharge and agreed that the grievor had never even received a written notification that his attendance was not acceptable to the Employer. Even if the Employer had established that the grievor had a bad record of culpable absenteeism, it would still not have been entitled to rely on that record to discharge the grievor on January 20 because there is no evidence that he had ever been disciplined for any of the absences. Besides, in order to be able to rely on a prior disciplinary record the Employer must be able to affirmatively prove some final incident which itself is deserving of some discipline (Baton Broadcasting Ltd., [1971], 22 L.A.C. 323 (Brown)). We have already held that the absence in January 1989 was not established to be culpable. It follows from the foregoing that the Employer had no just cause to discipline the grievor for his absence. Accordingly, this confirms the oral direction made by the Board that the grievor shall be forthwith reinstated in his job, without loss of seniority or benefits. The grievor shall also be compensated for all loss of wages. The Board remains seized in the event there are difficulties in implementing this award. Dated this ]st day of Sept..1989 at Hamilton, Ontario. Nimal V. Dissanayake -Vice-Chai rperson ~n D. Montrose Member