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Home My WebLink About1993-1597.Hannant-Steffler.95-09-28 r ~" ONTARIO EMPLOYES OE LA COURONNE ~ CROWN EMPLOYEES DE L'ONTARIO 1111 GRIEVANCE COMMISSION DE SETTLEMENT REGLEMENT BOARD DES GRIEFS 180DUNDAS STREET WEST, SUITE 2100, TORONTO ON M5G 1Z8 TELEPHONE/TELEPHONE (416) 326-1388 180, RUE DUNDAS OUEST, BUREAU 2100, TORONTO (ON) M5G 1Z8 FACSIMILE/TELECOPIE (416) 326-1396 April 9, 1996 - - MEMORANDUM RE 1597/93 OPSEU (Hannant-Steffler) and The Crown in Right of Ontario (Ministry of Correctional services) The above-noted deci~ion was released by the Board on September 28, 1995 Please be advised that a Notice of Application for Judicial Review dated April 3, 1996 has been filed by Mr. Peter Engelmann of Caroline, Engelmann, Gottheil, Barristers & Solicitors LS/ dbg Encl - _,_..,~""",--_~'-.l.,-,--........ - < - . ~~. -' '\ '" ONTARIO EMPLOYES DE LA COURONNE CROWN EMPLOYEES DE L'ONTARIO 1111 GRIEVANCE COMMISSION DE \\. \- fll , SETTLEMENT REGLEMENT ~ ~~\~\,-Ovf \ ' BOARD DES GRIEFS ~ -UJO,mOUNOASSTREETWEST -SUITE 2100 TORONTO, ONTARfO. M5G lZ8 TELEPHONE/TELEPHONE (416) .326-1388 180, RUE,DUNDAS,OUEST alJ.REAU 2100, TORONTO (ONTARIO) M5G lZ8 FACSIMILE /TELl3COPIE (416) 326-1396 " GSB # 1597/93 , OPSEU # 93F690 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINtNG ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN OPSEU (Hannant-Steffler) Grievor - and - The Crown in Right of ontario (Ministry -of Correctional Services) Employer BEFORE A Barrett Vice-Chairperson G Majesky Member D Montrose Member FOR THE M Bevan GRIEVOR Grievance Officer ontario Public Service Employees Union FOR THE M Mously EMPLOYER Grievance Administration Officer Ministry of the Solicitor General & Correctional Services HEARING December 12, 1994 " February 1, 1995 May 3, 1995 - -. - -. --:. ~ D E CIS ION Ms Hannant-Steffler grieves "unjust dismissal" in violation of Article A of the collective agreement and desire~ as her remedy reinstatement with full back pay and ben~fits The grievor was a member of the unclassified staff employed I at the Wellington Detention Centre as a Correctional Officer 1 on a series of seven uninterrupted contracts between August 26, 1991, and June 30, 1993, when her contract was not renewed The grievor was advised of the non-renewal of her contract in a letter dated June 28, 1993, which is reproduced below "Dear Cindy: Your present contract expires as of June 30, 1993 Due to your continued unavailability for work and the impact this is having on the work place, your contract will not be renewed We will retain your name on our active list for possible future employment if and when you are able to give a commitment to regular attendance If you have any questions, please feel free to. contact me Yours truly, C Cybulski Superintendent" I I I ---..-- ----- -- --- - ( ~, 2 Ms Hannant""7Steffler 's l.ast contract was for the term February 1, 1993, to June 30, 1993 She was off work sick with a bad back when that contract was renewed and did not return to regular employment until the week of February 22nd Thereafter she worked pre~ty regularly until the week of May 3rd when she was off sick and worked only one day She next worked four hours on May 20th and thereafter she did not work at all before the conclusion of her contract The Employer raised a preliminary ~bjection regarding the arbitrability of the grievance an unclassified employee has no right to grieve the non-renewal of her cont~act The Union, relying upon a recent line of Grievance Settlement Board cases, asserts that there is jurisdiction for this Board to -review an alleged breach of Article A during the currency of a contract even though the grievance was not filed until after the expiration of the contract, when the employee has ceased to be an employee pursuant to the terms of the Public Service Act Upon the agreement of the parties, we reserved on the preliminary issue and heard the case on its merits It is essentially the position of the Union that the Employer discriminated against the grievor in making its non-renewal decision because of her handicap (or gender or famil~ status) contrary to the Human Rights Code and its prohibition against discrimination which is imported into Article A of the collective agreement The grievor was pregnant at the relevant time and ~ 3 unavailable for wor,k because she was suffering from a complication of pregnancy, hyper-emesis, which left her very weak and debilitated and required two hospital admissions There was some dispute the evidence , on about the extent of the Employer's knowledge of the grievor's condition and the cause of: her inability to work Ms Cybulski, the Superintendent, andMr S-tvier, the Scheduling Officer, testified that they were not aware of the nature of the grievor's illness, although they were aware that she was in the early stages of pregnancy They said that they are not allowed to ask, and do not ask, the nature of an illness when a , person books off sick The grievor testified that she told several shift supervisors at the Centre, about the nature of her illness, and she said that she brought in a doctor's note describing the illness, although it could not be found in her file The two ( medical notes that were found in her file did not state the nature of the illness Ms Cybulski testified that her institution has a complement of 10 casual Correctional Officers and is not allowed to add to the complement unless a casual employee is required to replace a classified employee on long.,..term leave Summer is the busiest time of the year for the employment of casuals and generally speaking they are all needed for a 40-hour week at this time to cover for classified staff ~acation periods When Ms Cybulski was advised by the Scheduling Officer that the grievor was continually unable to report for work and that he had been given no prognosis for a return, Ms Cybulski inquired of Head Office to see if she could \ hire another casual to replace the grievor She was told that I ~ ( 4 unclas'sified staff only backfill for classified staff, but no backfilling for unclassified staff is allowed Accordi~gly, and for the reason only of the grievor's unavailability, Ms Cybulski decided at t'he end of June not to renew the grievor's contract, while at the same time reassuring her that she would retain her name on their active list for possible future employment if and when the grievor was able to give a commitment to regular attendance. For her part, Ms Hannant-Steffler says that she had forgotten that her contract expired June 30th but she was worried about her I continued employment because of her lengthy absences She obtained a note from her doctor on July 5, 1993, saying "return to work July 12th - short shifts initially please" Upon returning from the doctor's office that day, she found the letter from Ms Cybulski telling her that he.r contract would not be renewed She knew the Employer wanted her to be available 40 hours a we~kbut neither she nor her doctor ktiew when she would be well enough for that She testified that if, her contract had been ren,ewed, she would have worked right up to the birth of the baby and come back to work one month after the birth At no time did she call in and ask to return to work, but finally in November; 1994, someone at the, institution called her to see if she was medically fit and wished to return She accepted that invitation and has been back to work since on further contraeis --- -- --- -- - --- - -- >, ,. ( 5 The first case decided by this Board that opened the door for unclassified employees to grieve after their contracts had expired is Pitirri, GSB #1685/94 (Kaplan), which was released in May, 1993 In that case the grievor, during the course of his contract, asked the employer for accommodation due to a medical condition he suffered The employer offered him accommodation but the grievor did not accept it on the ground that it was unr~asonable, ~nd grieved the non-renewal of his contract alleging it to be unjust dismissal In its preliminary decision, the Board said at page 14 "While it is undoubtedly the case that uncla'ssified employees, at the conclusion of their contract, have no new Collective Agreement rights, it cannot, in our view, be correct that the conclusion of an unclassified employee's contract of employment extinguishes. rights which arose during tIle period of employment when the employee was covered by the Collective Agreement In our view, where a Collective Agreement entitlement arises during the course of employment, in some circumstances the individual may remain an employee for the purpose of filing a grievance after the employment relationship has come to an end In this case the grievor's Article ~ rights were allegedly infringed while he was an employee, and it is on this basis that we are taking jurisdiction /I That preliminary decision was quickly followed in Merson~ GSB #16/93 (Gray), released March, 1994, and Chirco?, GSB #3039/92 (Kaufman), released May, 1994 In January, 1995, Dunlop, GSB #3146/92 (Dissanayake), was 1 released and it specifically followed Pitirri, Merson and Chircop ., r,> 6 Then came Dias, GSB #3479/92 (Gorsky) , in March, .1995, which reviewed all of the above cases in its preliminary decision but distinguished its facts and found that it had no jurisdiction to adjudicate a grievance based on an alleged violation of Article A in the course of administering a competition for a management position All of the above were preliminary decisions and, of them, only the Pitirri Board has heard the evidence ,and releas.ed a decision. on the merits That decision was released in March, 1994, and the grievance was dismissed because it was found that the employer had r made a reasonable accommodation offer to the grieyor Speaking to the issue of remedy in obiter at p 28, the board said that if the grievance had been successful, "we would have directed an appropriate remedy to restore the grievor to the position he would have been in but for the breach .. In light of the foregoing, we assume jurisdiction to decide this grievance on its merits On its merits, however, the grievance must fall The focus of the Union case is that the grievor was discriminated against because of a handicap She should have been offered accommodation instead of non-renewal of her contract If she had known her contract would not be renewed, she would have asked for accommodation earlier She should have been warned that her contract would not be renewed in order to give her an opportunity to obtain the appropriate medical information and make a formal accommodation request' ~~ -- I. ( 7 In argument Mr Bevan stated that it was not material to our decision whether or not the illness was pregnancy~related The illness itself is a h.andicap and falls within the definition pf handicap contained in the Hucian.Rights Code That definition is set out below "10-(1) I because of handicap I means for the reason that the person has or has had, or is believed to have had, (a) any degree of physical disability, infirmity, malformation or disfigurement that is caused by bodily injury, birth defect or illness and, without limiting the generality of the foregoing, any .degree of paralysis, amputation, lack of physical coordination, blindness Qr visual impairment ,muteness or speech impediment, or physical reliance on a guide dog or on a wheelchair or other remedial ~ppliance or device (emphasis aqded) II Mr Bevan offered no case law in support of the proposition that a temporary illness is a handicap within the meaning of the Human Riqhts Code Mr Mously had no case law either; but submitted that a temporary illness did not fall within the definition of handicap Subsequent to our hearing Mr Mously submitted four human rights decisions deal~ng with the definition of handicap They are Re Darlene Ouimette v. Lily Cups Ltd., Paul Sawyer and A~ Gemottine (1990), 12 C H R R D/19, Re Stelpipe - WeIland Tube Works and CAW- TCA Canada, Local 523, 37 LAC (4th) 284, ReHaldimand-Norfolk Police Services Board and Haldimand-Norfolk Police Association, 36 o - ! 8 LAC (4th) 246, and Re Belleville General Hospital and Service Employees' Union, Local 183, 37 LAC. (4th) 375 We agree that it is immaterial whether or not the Employer .~.. knew the illness was pregnancy-related At the time the Employer made the decision not to renew the grievor's contract, they knew that she had been ill for some time and they had no ,prognosis f~om her or a doctor about when she would be able to return to regular duties There was no evidence whatsoever that the Employer discriminated against the grievor on the. basis of her pregnancy, and the allegation of gender or family status discrimination is insupportable The fact that the temporary il'lness waE) pregnancy- related does not place it in a separate category on the facts of this case For the purpose of this decision we do not have to decide whether hyper-emesis is a handicap wi thin the definition contained in the Human Rights Code, although we doubt it The resolution of the grievance revolves around the employer's duty to accommodate, assuminq the illness is a handicap We find that there is no onus on the Employer as suggested by Mr Bevan to give advance warning to an employee that her contract will not be renewed due to her unavailability First of all, unclassified Correctional Officers know this Ms Hannant-Steffler testified that she knew the Employer wanted her to work 40 hours per week and she became concerned during May and June that the I I I I i " ( 9 Employer might not renew her contract due to her unavailability Clearly the responsibility lay with her to make an accommodation request before the expiry of her contract if that:. is what she wanted The fact that she forgot the expiry date of her contract is her problem, not the Employer's By the time she made her accommodation request (if the "short shifts" note can be called that) she was no longer an employee and no longer entitled to the Article A protection of the collective agreement For these reasons, the grievance is dismissed Dated at Toronto, this 28th day of September, 1995. ~~- A Barrett, 1ce~Chairperson "I Dissent" {dissent atta~hed) G Majesky, Member , ~~~ _.~ \ ...- D Montrose, Member --- 1 IN THE MA TIER OF AN ARBITRATION UNDER THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT ~ before THE GRIEVANCE SETTLEMENT BOARD BETWEEN OPSEU (Hannant-Steffler) 1597/93 - and - THE CROWN IN THE RIGHT OF ONTARIO (Ministry of Correctional Services) Union Nominee Dissent I have reviewed the decision'of the majority and must respectfully disassociate myself from their decision. On review of the evidence I find that the employer was placed on notice by the grievor that she was having medical complications related to her pregnancy I believe the facts of this case demonstrate that the employer was placed on notice, and further, that the grievor's illness was pregnancy related. Therefore the employer cannot discriminate against the grievor on this basis, whether intentional or inadvertant~ When the evidence is reviewed, I believe it is clear'that the employer r~cognizes that the grievor and husband told certain management (supervisors) that the gi'ievor was pregnant. Moreover, the emPloyer can't find out her absences are pregnancy related and then say it does;n't matter On that very point I disagree with the Board and believe there was a violation of the Human Rights Code. I also disagree with the Board's finding that the emplQyer thought it was an illness and didn't know the exact nature why the grievor was absent. In fact, the grievor testified that when she asked for an properly fitted uniform to accomodate her changing physiology (pregnancy related), the employer's obtained another uniform and made pant leg alternations by stapling (office stapler) a hem on her pants. The grievor was shocked and offended by this callous and indifferent approach in dealing with her special request. - - - - 2 In addition, I believe the record also indicates that union counsel did indicate pregnancy was a key issue in this dispute, and that the board should also seize jurisdiction to hear the Human Rights Code complaint. It should also be noted that when testimony was offered indicating that management was placed. on notice by the grievor, the employer could have called rebuttal evidenc.e, and failed to call additional evidence. Therefore a negative inference should have been assessed because management was put on 'notice that the medical problem was pregnancy related, and as a result the grievor'~complaint was alive during the term of her contract. I do not want to impugn the legitimacy of the grievor's absences, however, the employer has a bona fide contention that work time has been lost. However, the reasons for the absences woulcJ tend to support the grievor's position, and mitigate against an employer argument that she was a unreliable employee. It would appear on the surface that the employer is willi ng to recognize that the grievor had ongoing 'medical difficulties. More to the point, no real 'progressive discipline was been meted out to address this problem ie., 1 day, 3 day, 5 day (suspension), resulting in termination. Counter-intuith(ely, the reason the employer hasn't is that this has not been a central 'issue of concern for them. Secondly, the nature of the absences stand up to scrutiny and are in most instances bona fide related to her pregnancy However, the employer has raised a well veiled "innocent absenteeism argument" in hopes of shifting the attention away from their legal obligations under the code and making the dispute a 'iempioyeereliabil ity issue" WHEN DO ABSENCES COUNT IN DETERMINING INNOCENT ABSENTEEISM? Where an employee has a record of absenteeism, what instances may properly be considered by the employer in determining whether the employee's absenteeism record justifies discharge? Canada Post, VS. CUPW, sole arbitrator Richard Bird upheld the grievance in part. To quote from his award ''There is no dispute that excessive innocent absenteeism can give the corporation grounds for releasing an employee under Article 10 10. However, the parties disagree as to what types of absences are captured by the words innocent absenteeism. The Corporation decided to release the grievor under Article 10.10 because, in its judgement, the following kinds of absences in the grievor's attendance record support a prognosis of poor attendance in the future casual sick leave, certified sick leave, sick leave without pay, injury-on-duty, leave without pay in certain circumstances and 3 absence without leave." The arbitrator took into account sick leave and injury-on-d'utyleave, but not leave without payor absence without leave. This award provides a good summary of those types of leave which should and should not be included in an employer's calculation of an .employee's absenteeism record. ABSENTEEISM VS. PHYSICAL DISABILITY. HOW HUMAN RIGHTS LAWS AFFECT EMPLOYER'S POWERS Absenteeism has long been a concern of employers, especially in times like these when efficiency is key to survival. At the same time that employers have become more aware of managing absenteeism, though, human rights laws have been enacted to protect workers with physical disabilities. These laws create a complex course to be navigated by employers grappling. with absent employees. A recent court case, and the human rights decision it overturns, provides both a glimpse of the problems an~ the possible solutions in this area. The case is Ontario (Human Rights Commission) v Gaines Pet Foods Corp. (1993) 16 O.R (3rd) 290 (Div Ct.), reversing Black v Gaines Pet Foods (1992), 92 C.LLC. 17,025 (Ont. Bd. of Inq.) lETTER SET ATTENDANCE CONDmONS . . Black was a packer who had worked for Gaines since 1966. Since at least 1978, she had a very high absenteeism record. For example, in 1981, she had 56 days absent; in 1982, 77, and in 1983, 33. Absenteeism became, an important issue for Gaines in 1984 when it restructured. Because of financial concerns, the company decided to maintain only as many staff as it needed to carry out production Absences, therefore, would seriously interfere with staffing, and could affect production. In late 1984, Black was diagnosed with cervical cancer She required surgery, and was off work for nearly six months. When she returned to work at the end of April, 1985, Black was given a letter which stated that her absenteeism had been) excessive. The letter also set the conditions for her future employment: I 0 she was required to maintain attendance 1at least equal to ,tt'le plant average J 0 '" 4 during the next 12 months, 0 after 12. months, she was required to maintain a reasonable level of attendance. Failure to meet these conditions would result in her immediate termination.. Between April and January, Black missed a total of 40 days, and was terminated. An arbitrator upheld the dismissal. However, Black appeal to the Human Rights Commission that her cancer was a handicap under the Code. The commission decided that the company had a duty to accommodate Black's absenteeism, and it had not shown that accommodation was impossible However, the Board of Inquiry found no discrimination. Unfortunately for the company , the commi ssion asked the court to review the board's decision. The court did not agree with the board's conclusions. In it IS finding the court noted that when Black was terminated, the company took into account, at least in part, her six-month absence due to cancer .If the company considered a prohibited ground in making its decision, then the entire decision was in breach of the Code. This is applicable to Hannant-Steffler ABSENTEEISM IN A HUMAN RIGHTS WORLD Employers have to navigate between excessive absenteeism on the one hand, and human rights brecsches on the other? The Gaines case, above, provides the following lessons: 0 Recognize disabilities. This requires employers t() study the definition under your human rights law Most laws protect congenital problems and serious diseases, such as diabetes and epilepsy Most do not protect minor illnesses and temporary injuries. 0 Assess each absence separately If an absence is due toa protected disability, employers will likely have to accommodate it, unless doing so causes the employer undue- hardship (a very high standard 'to meet). However, absences for reasons other than a disability under human rights law are not protected. Employers retain their full powers to deal with these absences. 0 Take action only on non-protected absences. Before employers act, they must make sure the record of non-protected absences is strong enough to stand on its own. If they discipline, dismiss, impose attendance conditions, or otherwise act on the protected absences, even in part, the employer's whole action will be open to attack. tt\ 5 0 Recognize the many grey. areas. It may not be clear whether an illness is a protected disability,or whether an absence is in part due ,to a protected ground. Applying the duty to accommodate may also be difficult. HUMAN RIGHTS CODE AND RELATED PROTECTION'S I On review of the Human Rights Code I believe that the grievor was arguably protected Under Part II, Section 10 subsection (2). It provides for. Pregnancy (2) The right to equal treatment without discrimi nation because of sex, includes the right to equal treatment without discrimination because a women is or may become pregnant. My opinion is based on the fact that we are dealing with a gender specific reproduction problem. Secondly, the gender connection is clear and cannot be denied. Thirdly, the employer cannot discriminate against pregnant women since this would impact on a group (women). I believe the Human Rights legal argument must answer this three fold test. 1 Is it a Social area (employment)? 2. Is it a ground of discrimination (sex, or handicap)? 3. Can a link be made between the two? Accordingly, I believe the grievor can satisfy this test, which means there is a complaint. That doesn't necessarily guarantee the grievor a favourable ruling, but justifiably demonstrates that the matter can and should be argued. THE LILY CUPS DECISION: CRITERIA FOR DETERMINING IF A CONDmON ISA HANDICAP WITHIN THE MEANING OF THE CODE The Board of Inquiry in the Lily Cups decision outlined a three part test for which conditions can be considered handicaps under the Code. According to the test, a condition must be: 1 permanent, ongoing or of some persistence, 2. one that is not commonplace or widely shared, and 3. a substantial or material limit on an individual in carrying out some of life's important functions. ,.~ '~'e . 6 With that test in mind, the grievor's ability to have a child and the nature of her disability, I would argue, fall Within the meaning of Lily CUP!;. Finally, the Majority also conjectures that hyper-emesis may not constitute a handicap under the code, and I would respectfulfy disassociate myself from this musing Since the Board did not embark on a Human Rights Inquiry in this dispute, I believe that absent specific medical evidence on this point, the Board was severely beyond its jurisdiction when it posited a notional observation concerning the medical merits of hyper-emesis being a handic~p or prohited ground under the Code. Respectfully submitted by, Gary Majesky Board Member GM/mg MARKHAM, Ontario August 15, 1995 I I I I - ...- - - -~- --- - --- -