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Home My WebLink About1989-0409.McEwen.90-09-25~ ONTARIO EMPL OYES DE LA, COURONNE · CROWN EMPLOYEE$ DE L'ONTA RIO ~ GRIEYANCE C,OMMISSION DE SETTLEMENT REGLEMENT , BOARD DES GRIEFS 180 OUNDAS STREET WEST, SUITE 2100, TORONTO, ONTARIO, MSG IZ8 TELEPhONE/TEL'-PHONE: (416) 326-~388 180, F~U£ OUNOAS OUEST, BUREAU2100, TORONTO ~ONTARIO}, MSG fZ8 FACSIMtLE/T~L~-COPtE ~* I4~6) 326-1396 ,t09/89 IN THE MATTER OF ~N ]~tBIT~ATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before · THE GRIEV]kNCE SETTLEMENT BOARD BETWEEN OPSEU (McEwen) Grievor - and - The Crown in Right of Ontario .. (Ministry of Community & Social Services) Employer R. Verity Vice-Chairperson M. Vorster Member R. Scott Member FOR THE R. Blair GRIEVOR Counsel Cavalluzzo, Hayes & Lennon Barristers & Solicitors FOR THE R. Anderson EMPLOYER Counsel Le§a['$ervices ~ranch Ministry of Community & Social Services HEARING= February 23, 1990 August 14, 1990 DECISION The grievor, Gary McEwen, alleges that he was unjustly disciplined on January 31, 1989 by being given a letter of reprimand for leaving work on January 11 without the approval of his supervisor. In a grievance filed, he requests that the reprimand be rescinded and removed from his personnel file. Mr. McEwen is employed as a Recreational Instructor at the Rideau Regional Centre in Smith Falls, a large facility operated by the Ministry to provide care and treatment for developmentally handicapped residents. The grievor has been employed at the Centre for approximately 19 years. There is little dispute as to the incident itself. On January 11, 1989 the grievor was scheduled to work from 8:00 a.m. to 4:30 p.m. on Ward East 5D. At approximately 8:25 a.m. the grievor telephoned supervisor Kathy Watson at the Activity Centre and requested leave to take the afternoon off. He gave no reason for the request. Supervisor Watson enquired if the leave was important because he was required to attend a recreational staff meeting that afternoon. Without further explanation, the grievor agreed to attend the afternoon staff meeting. Between 10:45 and 10:55, the grievor telephoned employee health nurse Rhona Smyth and told her that he had a headache and that he would go off duty at noon. He assured Mrs. Smyth that he would contact his supervisor. He then advised ward staff that he was leaving work and attempted to telephone his supervisor without success. Mr. McEwen then called the Activity Centre and spoke to employee Pam Bernicky to enquire if she was aware 'of the supervisor's whereabouts. After a negative response, the grievor instructed Ms. Bernicky to make an entry in the Activity Centre Log Book that he had gone home sick. The grievor left the facility at approximately 11:00.' At 2:45 supervisor Watson telephoned the grievor on an unrelated matter and learned that the grievor had left work at I1:00 on account of illness. Following an investigation, including a discussion with the grievor, the super.visor issued the letter of reprimand. The Ministry Standards of Conduct and Disciplinary Guidelines describes as misconduct "absence from work location without permission (except in emergencies)". The disciplinary guidelines call for a penalty from a written reprimand up to a three day suspension for a first infraction. Similarly, personnel Directive #17 in 1970 from the Ministry of Health made reference to the offence 6f "leaving without permission" as follows: Employees should not leave the office or work area without the permission of their supervisor: - Minor infractions - recorded reprimand o Frequent or habitual infractions - fine of up to three days' pay. Subsequently, after the Ministry of Community and Social Services assumed jurisdiction for the Rideau Regional Centre, a furthe~ personnel directive was issued on July 31, 1978. With regard to the leaving without permission, the offence and the suggested disciplinary response remained virtually unchanged. The evidence established that in 1988, the employer became concerned about ~he productive use of the grievor's time and instituted a system of. direct accountability. In May 1988, the grievor was told and given written instructions by his supervisor Kathy Watson that all absences for any reason must be authorized by her. In' June 1988, further guidelines were given both orally and in writing to prevent the grievor taking time off on short notice. In August 1988, at the grievor's request, Judy McEwen (no relation) was appointed Mr. McEwen's technical supervisor. Henceforth, the arrangement was that all requests for time off would be made to Mrs. McEwen who would make a recommendation with final approval to be given by Kathy Watson. Judy McEwen testified that she left on vacation for a week commencing on January 10, 1989. However, on two occasions earlier that month, Mrs. McEwen had advised the grievor that during her vacation any request for leave, must be authorized by Kathy Watson. In fact, the'grievor followed proper procedures on January 10 when he contacted Mrs. Watson and obtained permission for time off to attend a doctor's appointment scheduled for 3:00 p.m. on that day. At the hearing, the grievor admitted his familiarity with policies and procedures and guidelines for leaving work, but claimed that he wasn't aware of the obligation to contact his supervisor for sick time. According to the grievor's evidence, he obtained the supervisor's permission to leave work on January lQ because he knew "in advance" of the sick leave request. He did acknowledge his obligation to contact his supervisor prior to leaving work for purposes of vacation or "T-time". In every instance the grievor is required to obtain permission from his supervisor prior' to leaving the workpl'ace. The issue is whether or not Mr. McEwen made reasonable efforts to contact supervisor Kathy Watson on the day in question. The Employer argued that the grievor knew the procedures for leaving the workplace and that in these circumstances he failed to make reasonable efforts to contact the supervisor. In support, Ms. Anderson cited the following authorities: Maton and Workmen's Compensation Board 24/78 (Swinton); and OPSEU (Lawrence) and Ministry ~f'Consumer and Commercial Relations 549/81 (Delisle). ~The Union contended that the grievor had no intent to. breach Ministry policies, procedures and guidelines and that management had. failed to advise him of the procedures for leaving work on account of illness with sufficient clarity. Mr. 81air referred the 8oard to one authority: Re International Woodworkers of America, Local 2-500 and Stancor Central LtO. (Pep~ler Division) (1970), 22 L.A.C. 184 (Weiler). In the first paragraph of the letter of reprimand, it was alleged that "during December 1988 and January 1989, your leaves of absence from work became a problem". However, the evidence was to the contrary. Ms. Anderson acknowledged that fact in final argument. In this case there is no allegat.ion of abuse of sick leave and no allegation that the grievor's illness was other than legitimate. However, on the evidence adduced, the Board is satisfied that the grievor was fully aware of all relevant policies, procedures,'and guidelines, and in particular the requirement that alt absences for any reason must be authorized by a supervisor prior to his leaving the workplace. In our view, it is essential that a supervisor knows the whereabouts of each employee under supervision during regular working hours. The grievor's illness on January 11 cannot be characterized as an emergency. Accordingly, the grievor was required to obtain permission prior to leaving the workplace. The evidence established that nurse Smyth did not grant the grievor permission to leave. Although Mr. McEwen made several futile attempts to contact his supervisor, it cannot be said that the attempts~were reasonable. Indeed, he assured the employee health nurse that he would contact supervisor Watson. Simply put, he did not do so. Having the benefit of numerous management instructions, the grievor knew that he was required to be fully accountable for his whereabouts. There was no reason why he failed to page his supervisor, which was the common practice when a supervisor was not readily available. We find that the letter of reprimand was a proper management response in these particular circumstances. The grievor followed proper procedure on January 10 but failed to do so on January 11. In the result, the grievance is dismissed. However, the grievor shall be compensated for all lost time from work on the understanding that his absence on the day in question was on account of illness. ' DATED at Brantford, Ontario this 2Stray of September, A.D., 1990. R. L. VERITY, Q.C. - VICE-CHAIRPERSON (Dissent without "I DISSENT" written reason) M. V~R~TFR - ~F~FR R. SCOTT - MEMBER