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HomeMy WebLinkAbout1989-0420.DeKrieger.90-04-03 ONTARIO EMPLOYES DE LA COURONNE CROWN EMPLOYEES DE L 'ON TARtO GRIEVANCE C,OMMISSION DE SETTLEMENT' REGLEMENT BOARD DES GRIEFS 180 DUN~)AS STREET WEST, TORONTO, ONTARIO. MsG 1Z8- SUITE 2t00 TELE?HONE/T~-L~PHONE 180, RUE DUNDAS OUES T, TORONTO, (ONTARIO) MSG 1Z8 - BUREAU 2100 (416) 598-0688 420/89 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD Between: OPSEU (DeKrieger) Grievor _ and _ The Crown in Right of Ontario (Ministry of Health) Employer Before: B. Fisher - Vice-Chairperson G. Nabi - Member E.J. Orsini - Member. APPEARING FOR S. Ursel THE GRIEVOR: Counsel Cornish & Associates Barristers & Solicitors APPEARING FOR M. Farson THE EMPLOYER: Counsel Fraser & Beatty Barristers & Solicitors HEARING: October 31, 1989 January 18, 1990 DECISION This is a discharge case. The grievor was employed as an ambulance dispatcher at the Mississauga Central Ambulance Communication Centre ("Mississauga CACC") on a full time basis from November 1987 to April 12, 1989. The grievor was discharged because on March 3 and 4, 1989, he was scheduled to work but instead reported in sick while at the same time he engaged in paid work at another ambulance service as an ambulance attendant. The Union did not dispute the incident in question but stated that, in light of all the circumstances, the penalty of discharge was too severe. The sequence of events relative to the allegations of misuse of sick time seems to be as follows: 1. On March 1 the grievor called into work at 15:00 and indicated that due to an inflamed bowel he was not able to report for his shift which started at 19:00 and went until 7:00 a.m. on March 2. The grievor claimed that he told Mr. Juszak at that time that he was booking off three days, that is the night shifts starting March 1, 2, and 3. The sick report entered as Exhibit #7 only records March 1 as the date reported sick. 2. Later that night, at around 23:00 on March 1, the grievor received a phone call from the Supervisor of Orangeville Ambulance Service (a non-governmental employer) asking if he can work a shift the next day from 8:30 to 16:30. The grievor agreed to do so. In the past, the grievor had worked for this and other ambulance services on his days off. 3. On March 2 the grievor worked for the Orangeville Ambulance Service from 8:30'to 16:30:~ He was not schedule to work for Mississauga CACC during this time. 4. At 16:05 on March 2, while still at work for the Orangeville Ambulance Service, the grievor called Mississauga CACC and reported in sick for two more days. The grievor said he was simply double checking to see that Mississauga CACC had recorded his call from the other day correctly. The sick report (Exhibit #8) indicated the days absent as March 2 and 3. -2- 5. Later that night, the grievor received a phone call from a fellow dispatcher at Mississauga CACC who told him he had a "major problem" because he had called in sick for the night shift but worked the day shift somewhere else. 6. The grievor then called Mr. Dan Lister, the Assistant Manager of Mississauga CACC. Mr. Lister was unable to testify due to medical reasons, however, Mr. Duffin, Manager of Mississauga CACC confirmed that he spoke to Mr. Lister after this event and Mr. Lister told him that he and the grievor had spoke on the night of March 2 and that the grievor had told Mr. Lister that he was suffering from stress. The grievor indicated that in his conversation with Mr. Lister, he told Mr. Lister that he was suffering from stress on the job and that he was concerned about working night shift as a dispatcher. They also discussed the problem that existed at that time, which was calling in sick for one night shift and then subsequently working the next shift at a different location. He is not sure if he requested a leave of absence at this time. At this time Mr. Lister put the situation on hold and said they would talk on the Monday or Tuesday (March 6 or 7). 7. At about 23:00 on March 2 the grievor was called by the Supervisor at the Orangeville Ambulance Service who asked him to start work in an hour and a half. The grievor agreed to do so. 8. The grievor worked for the Orangeville Ambulance Service from 0:30 to 7:00 a.m. March 3. This was the same time he was scheduled to work for Mississauga CACC but did not do so as he reported in sick. During this time he spoke to the Mississauga CACC dispatch in the course of his Work on the ambulances. 9. On March 3, he attended at his doctor's office and obtained a doctor's certificate which states: "T~ is patient is suffering from job-related stress. He is having physical s _yjnptoms ot stress when he works as an ambulance dispatcher. He would benefit from a short period of rest from this job - perhaps two months." 10. Similarly, on March 4, the grievor worked for the Orangeville Ambulance Service from 0:30 to 7:00, which was the same time that he was scheduled to work for Mississauga CACC. Again, in the course of his job as an Ambulance Attendant, he spoke to Mississauga CACC. 11. On March 7 the grievor had a meeting with Messrs. Lister and Duffin. The grievor was presented with the evidence of the conflict existing on March 3 and 4 and admitted the incident. The grievor produced the medical certificate referred to above and indicated that he intended to continue to work for the ambulance services during this two month period. He was told that if he was on disability leave he could not work for an ambulance service. The grievor then said that then he would request a Leave of Absence without pay. 12. The next day, March 8, the grievor indicated that he would be "withdrawing" the previous medical certificate and bringing in a new one to cover his time off. 13. On March 10, 1989, he brought a medical certificate from the same doctor as before. The certificate said as follows: 'Whis patient has not been feelingwell since March 1, 1989. Can return to work March 10, 1989.- dated-March 10, I989" 14. On April 12 a pre-disciplinary meeting was held. On April 13 the grievor was dismissed. The employer maintains that discharge was the appropriate response for the following reasons: 1. The activity was not a spur of the moment decision, but rather took place over two days. 2. He worked the conflicting shifts after he had been told that there was a "major problem" and after his supervisor told him that matters were "on hold". 3. In essence, by calling in sick when he wasn't, he committed a serious breach of trust. 4. The grievor planned to benefit financially by receiving both sick pay from the government and wages from another employer. 5. It is not credible for the grievor to say that he didn't know it was wrong to report in sick and work somewhere else. 6. The grievor has only short service. -4- 7. The grievor did not admit to the wrongdoing until he was confronted with the evidence by Messrs. Duffin and Armstrong on March 7. He could not have told Mr. Lister about the matter on March 2 as the incident took place on March 3 and 4. The employer relies on the following three cases to show that arbitrators have generally upheld discharge in a case of this nature: 1. Koufis 372/82 (Barton) 2. Themeliopoulous 363/84 (Samuels) 3. Re American Motors and UAW 21 L.A.C. (2d) 161 (Brown) The Union claims that the penalty is excessive because: 1. The grievor's work record prior to this incident was unblemished save one minor discipline matter unrelated to absences. 2. The grievor was under alot of stress at the time due to work and due to the fact that he was engaged to be married. 3. Although the grievor was too sick to perform the dispatcher job, he was not too ill to do other things, including working as an ambulance attendant, which is admitted by the employer to be less stressful. Therefore, the mere fact that he was engaged in another job while at the same time claiming sick pay from his employer is not in itself a serious matter. The Union relied on the case of Re De Havilland Aircraft and UAW 2 L.A.C. (3d) 402 (Brown) in which the grievor took an educational course while on sick leave. It was found in that case that given the reason for absence from work (i.e. breathing problems), it was not inconsistent that he could attend a course, and therefore it was not improper for him to claim sick leave for the same period. 4. Although the grievor had called in and reported sick on March 1 and 2, he claimed that he was actually intending to apply for a retroactive leave of absence and was not expected to be paid for those days. -5- 5. The grievor voluntarily underwent a programme of stress management through a doctor and psychiatrist, which commenced prior to his dismissal. He now feels that he has learned to deal with his stress so that he could now perform the full functions of an ambulance dispatcher without the necessity of taking time off due to sickness. 6. Mr. Duffin, the grievor's supervisor, indicated that he would have no trouble working with the grievor if he was reinstated. Although counsel for the grievor stated at the opening of the case that the Grievor admitted he had been wrong in working for another employer while claiming sick leave, it seemed that in her closing she wished the Board to find that her client was truly disabled from performing the dispatcher job on March 2 and 3 but that he was not so sick as to perform the ambulance attendant job. However, if the grievor was truly disabled from performing the dispatcher's job, then he was right to call in sick and it was right for him to obtain sick leave. The wrongdoing is not earning money while on sick leave, it is calling in sick and clairning pay when in fact you are not sick. In Thetneliopoulous, the issue was not that the grievor was working at Canada Post while on sick leave from the LCBO, rather the relevance of his working at the Canada Post was to show that he could not have been disabled from performing his LCBO job because the Canada Post job was a job of similar nature. In other words, the Board simply drew an inference that if he was capable of performing a second job similar to his regular job, then he was not disabled from performing his regular job. Therefore, we must first consider whether or not the grievor was actually disabled on the days in question. We are led to the conclusion that he was not disabled on the days in question for the following reasons: 1. He admits that he was wrong to call in sick. 2. He claims to have diarrhea and this prevented him from performing dispatch work but not ambulance attendant work. As diarrhea is a common occurrence, experienced by most people at some time in their lives (including -6- Vice-Chairpersons, from time to time) this contention of the grievor's is not believable as a person suffering from this ailment would normally choose to engage in an activity that would allow him the maximum access to a toilet within the minimum amount of time. One can easily surmise that this access would be easier in a dispatch office than an ambulance. 3. He not only worked on March 2, 3, and 4 at Orangeville, but he worked an extra day on the 5th of March, which was a scheduled day off from Mississauga CACC. One would not expect that a person who was sick to the degree that the grievor claims he was would work more than he had originally planned to. 4. His ability to obtain seemingly contradictory medical reports from the same doctor at the drop of a hat and his failure to call any medical evidence at the hearing leads one to seriously question the credibility of his medical certificates. 5. The stress symptoms which he claimed to have had on the days in question were of a semi-chronic nature at that time. In other words, he was likely suffering no more discomfort on those days than he was generally suffering throughout that period. This is similar to the situation in Themeliopoulous where the grievor suffered from a chronic elbow problem and only the grievor could tell whether or not he was experiencing sufficient pain so that it was not possible for him to work on a given day. Having concluded therefore, that the grievor was not disabled on the days in question, it is clear that he committed a serious offence in falsely reporting in sick on March 2 and 3, 1989. In Re American Motors, cited above, arbitrator Browrh at page 164, says as follows: -7- "These circumstances are analogous to those cases which deal with theft of~roperty and immoral conduct, which is con. duct recognized as being inconsistent mtn the continuation of an employment relationship. There cannot be a clearer factual case t.han the present matter to establish an. employee's misconduct as being inimical to the continuation of.his employment relationslfip. The grievor deliberately embarked upon a scheme to ot~tain company paid benefits while Being off from scheduled work, as well as receiving p.ay from another employer. On [he fact of that, he has by his own actions, severefl tiis employment relationship. The grievor did not make _any admi.ssign of these circumstances to the company or a.nyone else until he was faced with tl~e situatio, n by the company, which had through its qwn investigation learned of the facts. At that time it was easy for him to ailmit wfaat he had done and make restitution and request consideration on a compassionate basis, but the. other side which must be considered is that if these facts had not been discovered, it must be concluded that the grievor intended to retain both his outside wages and his benefits. Once such a scheme was successful, the likelihood is that it would be repeated at some point, which is a serious consideration for the application of a penalty by way of ~teterrence for his employee, as well as for any o~ers who might be so tempted." Although in the cases presented to this Board by the Employer, a discharge was uniformly told to be the appropriate response, there are important differences with our case. In Koufis, the grievor falsified four different medical certificates, over a number of months. In our case although there was two days in question, it really is only one incident. Moreover, Mr. Koufis had a dismal discipline record, while Mr. DeKreiger has a very good record. Also, Mr. Koufis claimed that his actions were due to stress but subsequent to his dismissal he took no actions to help him deal with this problem. In our case the grievor took positive steps to solve his stress problem even before the dismissal, and has continued to do so. In Themeliopoulos, the grievor's creditability was astonishingly poor, in fact at one point he admits to committing perjury in a previous hearing. Again, the grievor's discipline record was sprinkled with previous offenses, some related to unauthorized absences. In Re American Motors, the offence took place over a continuous period of three weeks, as opposed to 2 days in this case. The Board is left with the impression and the hope that the grievor has learned his lesson and that given the right conditions of reinstatement, he could prove himself to be a trustworthy and valuable employee for the Ministry. The Board, however, feels strongly that the major cause of the situation was stress and that the grievor's attempt to balance two jobs contributed to that stress. -8- Therefore, the terms of such reinstatement should take this account. The Board therefore orders as follows: 1. The penalty of discharge is to be substituted for a suspension until reinstatement without compensation. 2. The grievor is to be reinstated only once he has provided his employer with a proper medical report from his psychiatrist confirming that he is able to resume his duties as an ambulance dispatcher. The psychiatric report should make specific reference to the fact that the grievor is able to cope with the various shifts inherent in the position. The cost of obtaining this report shall be the grievor's responsibility. 3. The grievor is to refrain from having any other paid employment for a period of six months from his date of reinstatement. 4. The grievor is to achieve and maintain an acceptable level of attendance in accordance with the applicable average attendance of other dispatchers at Mississauga CACC. If he fails to achieve and maintain such a level and if his absences are due to stress- related illnesses, then he can be dismissed. This condition is to remain in effect for a period of twelve months following his reinstatement. The Employer is to advise the grievor of this acceptable level within thirty days of his reinstatement. 5. This Board will remain seized of all matters arising from the implementation of this award. -9- DATED at Toronto this :3 day of '~ A~ri 1 ;'. 1990. ,iHER_.ViceChaiperson G. Nabi - Member