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HomeMy WebLinkAbout2008-2793.Pilger et al.11-09-02 DecisionCommission de Crown Employees Grievance UqJOHPHQWGHVJULHIV Settlement Board GHVHPSOR\pVGHOD Couronne Suite 600 Bureau 600 180 Dundas St. West 180, rue Dundas Ouest Toronto, Ontario M5G 1Z8 Toronto (Ontario) M5G 1Z8 Tel. (416) 326-1388 7pO   Fax (416) 326-1396 7pOpF   GSB#2008-2793, 2008-2794, 2008-2828, 2008-3084, 2008-3085, 2008-3155, 2008-3156, 2008-3157, 2008-3158 UNION#2008-0369-0368, 2008-0369-0369, 2008-0369-0375, 2008-0369-0399, 2008-0369-0400, 2008-0369-0403, 2008-0369-0404, 2008-0369-0405, 2008-0369-0406 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN Ontario Public Service Employees Union èÏÔÎÏ (Pilger et al) - and - The Crown in Right of Ontario (Ministry of Community Safety and Correctional Services) Employer BEFOREVice-Chair Randi H. Abramsky FOR THE UNION David Wright Ryder Wright Blair & Holmes LLP Barristers and Solicitors FOR THE EMPLOYER Suneel Bahal Ministry of Government Services Labour Practice Group Counsel HEARING October 15, 2010, March 2, May 4 & May 30, July 20, 2011. - 2 - DECISION [1]There are nine individual grievances before me, although the parties elected to proceed solely with the evidence of two grievors at this time. The grievances assert that the Employer has violated Articles 2 (Management Rights) and 3 (Discrimination) of the collective agreement and the Ontario Human Rights Code. It is undisputed that the grievances also involve an allegation that the Employer has violated ArticleDVZHOODVWKH³MXVWFDXVH´UHTXLUHPHQWRI the collective agreement. Essentially, the grievances contend that the Employer improperly UHYLHZHGWKHJULHYRUV¶DWWHQGDQFHIRUSDWWHUQDEVHQWHHLVPKHOG³GLVFLSOLQDU\´PHHWLQJV concerning their attendance, and, in certain cases, improperly required the grievors to submit medical certificates for any absence for a thirty day period. Facts [2]All of the grievors are Correctional Officers at Central North Correctional Centre (CNCC). That facility, from 2000 to 2006, had been involved in a public-private partnership whereby correctional services and management of CNCC were provided by a private entity. That arrangement ended in November 2006, and the Ministry of Community Safety and Correctional Services once again resumed management of the facility. The majority of employees remained throughout this time period. [3]In the Spring of 2008, it was noted that absenteeism had increased significantly after the Ministry resumed management of the facility. From an average absenteeism rate of between 9 and 10 days per employee per year while under private sector management, the level of absenteeism had significantly increased afterward. This led the Northern Region to request a - 3 - review of pattern absences, EDVHGRQDGRFXPHQWHQWLWOHG³&ulpable Absenteeism/Suspected $EXVHRI6LFN/HDYH%HVW3UDFWLFHV´7KDW document provides a secWLRQHQWLWOHG³5HDVRQDEOH *URXQGVWR6XVSHFW$EXVH´ZKLFKSURYLGHs, in relevant part, as follows: Reasonable Grounds to Suspect Abuse In order to require an employee to provide a medical certificate before the required number of GD\VKDVH[SLUHG ILYHIRU236(8« WKHHPSOR\HUmust have reasonable grounds to suspect that the employee is not sick or injured. There are a number of circumstances that may reasonably raise the suspicion of the employer: (1)An employee requests and is denied leave for a specific day and later calls in sick on/for that day. (2)$UHYLHZRIDQLQGLYLGXDO¶VDWWHQGDQFHUecord indicates a pattern of absences. The stronger the pattern the more legitimate the suspicion. It is imperative that accurate records have been kept if considering pattern absences. Patterns of absence that may cause suspicion are, for example: where an employee regularly calls in sick on a certain day of the week or at a certain time of the year; where an employee takes excessive sick time combined with excessive overtime or overtime for shifts that immediately follow the absence due to illness; where spouses of co-workers call in sick such that they are off at the same time; or other patterns. (3)A special event is occurring in the community that the employee or a group of employees is or are likely to attend, for example a hockey tournament. (4)A number of employees call in sick at the same time in a concerted manner (an illegal VWULNHRU³EOXHIOX´  [4] At the time of this directive Robyn Kasha was Assistant Deputy Superintendent of Administration. She was subsequently promoted to Acting Superintendent and has since become Superintendent. At the direction of the Superintendent at the time, Ms. Kasha and Manager of Administration-Staff Services Doug Houghton developed criteria to review the attendance records of all staff. CNCC has over 400 full-time staff, including 330 full-time Correctional - 4 - Offices, 35 Operational Managers, and approximately 60 support staff, plus unclassified Correctional Officers. The attendance of all staff and management was reviewed, with the focus H[FOXVLYHO\RQVLFNGD\VXVHG±QRWWSIB or other types of absences. [5] The first review dealt with the employees¶ - 5 - two could be a coincidence, but by five or more, it seemed to be a reasonable basis for assessing a potential pattern. The patterns reviewed were absences which extended time off between shifts, absences in conjunction with vacation or lieu time, absences on weekends, and absences coinciding with overtime shifts. >@(PSOR\HHVDW&1&&ZRUND³FRPSUHVVHGZRUN´ZHHNVFKHGXOH)RU0V0LMDWRYLFRQH of the grievors, that meant 4 days on, 2 off, 4 on, 2 off, 3 on, 3 off, 3 on, 4 off, 3 on, 3 off, 3 on, 2 off, 4 on, 2 off, 4 on, 10 off. The shifts shHZRUNHG±GD\VDIWHUQRRQQLJKWVDOVRYDULHG [9] In all, 14 OPSEU employees (and two non-OPSEU employees) were identified as potentially having suspicious patterns of absence, and the Employer elected to meet with those HPSOR\HHV±DV0V.DVKDSKUDVHGLW±³WRGLVFXVVRXUFRQFHUQVDQGFODULI\H[SHFWDWLRQV´±DV ZHOODVWRKHDUWKHHPSOR\HHV¶H[SODQDWLRQV Ms. Kasha was clear that these were not disciplinary meetings, but potentially could lead to discipline.7KH\ZHUHQRW³DOOHJDWLRQ´ meetings, as that term is used in the Ministry. >@%RWKRIWKHJULHYRUVZKRWHVWLILHG±0V=GHQND0LMDWRYLFDQG0U-DPHV/DQGULDXOW± received such letters, which were nearly identical, dated October 16, 2008. The letters, from Acting Superintendent Kasha, note WKDW³>D@UHYLHZRISDWWHUQHGDEVHQFHVIURPZRUNKDVEHHQ XQGHUWDNHQIRUDOOVWDII´DGYLVHGWKDWDPHHWLng with her and another manager would be taking place and when that would be. It fuUWKHUVWDWHV³7KHSXUSRVHRIWKis meeting is for us to discuss WKH(PSOR\HU¶VFRQFHUQVUHJDUGLQJ\RXU\HDUWRGDte Short Term Sickness absences. A calendar documenting your absences, from January 1, 2008 through August 31, 2008 has been attached - 6 - IRU\RXUUHIHUHQFH´,WIXUWKHUVWDWHVWKDW³>\@ou are entitled to bring a union representative to the PHHWLQJ´7KHDWWDFKHGFDOHQGDUV actually covered the time period from October 2007 to August ±DSHULRGRIPRQWKV7KHVHOHWWHUVZHUHKDnd-delivered to the individual recipients in a VHDOHGHQYHORSHPDUNHG³FRQILGHQWLDO´DQGIRUZKich they had to sign that they had received. [11] Ms. Mijatovic has been a Correctional Officer since April 2003, and a full-time officer since October 2007. From January 25, 2008 to July 2008, she was in the Attendance Support Program. She successfully exited that program in July 2008. When she received the October 16, OHWWHUVKHIHOW³DOLWWOHVKRFNHGVFDUHGDQGXSVHW´6KHKDGWKRXJKWWKDWVLQFHVKHKDG successfully exited the ASP, she had addressed her attendance issues, yet now the same absences were being reviewed for potential culpability. She was not aware of the difference between culpable and non-culpable absenteeism, or that the ASP covered only non-culpable absences. [12] By both her account and that of Ms. Kasha, Ms. Mijatovic was very emotionally upset during the attendance meeting, which took place on November 12, 2008. Ms. Mijatovic testified that she was upset and had a hard time talking and lost her composure. A number of breaks were taken to provide Ms. Mijatovic with an opportunity to compose herself. She felt upset, embarrassed, nervous and scared. [13] The meeting was attended by Ms. Kasha, Assistant Deputy Superintendent Cadwell, a Union Representative and Ms. Mijatovic. During the meeting, Ms. Kasha described the two different types of absenteeism - culpable and non-culpable, and assured Ms. Mijatovic that the meeting was not disciplinary and would not be on her personnel file. Ms. Kasha reviewed Ms. - 7 - 0LMDWRYLF¶VFDOHQGDUDQGH[SUHVVHGWKH(PSOR\HU¶VFRQFHUQVDERXWWKHQXPEHURIVLFNGD\V taken which extended her time off between sets of shifts (16) and the number of weekend sick days (11) taken. At the hearing, Ms. Mijatovic testified that heUDEVHQFHVZHUHGXHWR³VRPH PLJUDLQHV´D³VHQVLWLYHVWRPDFK´DQG³RWKHUUHDVRQV´6KHFRXOGQRWUHFDOOKRZHYHULIVKH mentioned that at the meeting, nor could she recall if she had raised these medical issues during KHU$63PHHWLQJV,WZDVWKH(PSOR\HU¶VHYLGHQce that she did not. She acknowledged that she had the opportunity to explain her absences and provide information at the meeting, and that management, throughout the meeting, acted professionally and supportive. Due to her emotional upset, management allowed Ms. Mijatovic to leave her shift for the rest of the day with pay, based on compassionate grounds. At no time when these absences occurred was Ms. Mijatovic asked to submit a medical note, nor has she ever been disciplined for her absenteeism. [14] On November 12, 2008, the date of the meeting, Ms. Mijatovic filed her grievance in this matter. On November 14, 2008, Superintendent Kasha wrote a letter to heUHQWLWOHG³3DWWHUQ $EVHQFH0HHWLQJ&RQILUPDWLRQ/HWWHU´7KHOHWWHUVWDWHVLQSHUWLQHQWSDUWDVIROORZV On November 12, 2008, you and your representative met with me to discuss concerns regarding your year-to-date short-term sick absences. At this meeting, you were advised that PDQDJHPHQW¶VFRQFHUQZDVEDVHGXSRQDSDWWHUn of absences. You were shown documents that demonstrated a reasonable basis for this concern. The information that you provided at the meeWLQJDGGUHVVHGWKHHPSOR\HU¶VFRQFHUQDWWKLV time. A further review of short-term sick absence patterns will be conducted during the first quarter of 2009. Staff identified as exhibiting a pattern of sick absences that cause concern will be contacted and a meeting arranged. As discussed, you are encouraged to utilize the various support systems available to ensure your attendance at work. - 8 - Ms. Kasha testified that she decided that she would not require Ms. Mijatovic to submit medical notes for future absences because she felt, baVHGRQWKHPHHWLQJWKDW0V0LMDWRYLF³XQGHUVWRRG RXUFRQFHUQV´6KHGHFLGHGWRWDNHD³ZDLWDQGVHH´DSSURDFK,QDGGLWLRQE\WKHWLPHRIWKH PHHWLQJ0V0LMDWRYLFGLGQRWKDYH³WRRPDQ\DEVHQFHV´ [15] On November 21, 2008, Ms. Mijatovic wrote to Ms. Kasha, identifying matters that were discussed during the meeting of November 12 but were not included in her letter, such as her successful exit from the ASP, nor a clear statement that the meeting was not a disciplinary meeting. It also did not include that she did noWQHHGWREULQJLQDGRFWRU¶VQRWHIRUDQ\VLFN absences in the next thirty days. Ms. Kasha did not respond to this letter. Ms. Kasha explained that she did not because the grievance concerning the meeting had already been filed. [16] Ms. Mijatovic testified that after the meeting, two managers mentioned their surprise that VKHZDV³SDUWRIWKDWJURXS´referring to the pattern absence meetings. She acknowledged, however, that she had showed her calendar to other employees to compare and confided to a few employees that she was called to a meeting about it. She could not recall if she discussed it with the managers [17] Mr. Landriault met with Ms. Kasha, Assistant Deputy Superintendent Caldwell, and a Union Representative on November 12, 2008. He, too, had been in the ASP program but had successfully exited the program in April 2008. He testified that he received a letter informing him about a meeting to discuss pattern absences, along with a calendar of his absences attached. He stated that he was at first confused by the meeting, wonderiQJZK\WKHVH³SDWWHUQV´KDGQRW - 9 - been noted before while he was in the ASP program, and then he became angry and upset. He WKRXJKWLWZDV³ULGLFXORXV´EHFDXVe they could find a pattern in anything, and they were treating all of his absences as culpable. He testified that his high absenteeism in 2007 was because of the death of his mother in March 2007, after which he could not work for a month. Then, on October 14, 2007, his grandmother passed away and on October 16 his son was born. His attendance calendar shows that in October 2007 he took three bereavement days, followed by WKUHHOLHXGD\VDQGIRXUYDFDWLRQGD\V±QRQHRIZKLFKZHUHFRXQWHGLQWKH(PSOR\HU¶VDQDO\VLV He also stated that he had headaches, which he believed at the time were migraines. He did not, KRZHYHUVHHKLVGRFWRUDERXWKLVKHDGDFKHVXQWLO1RYHPEHU±DIWHUWKHDWWHQGDQFH PHHWLQJ+HWHVWLILHGWKDWKH³GLGQ¶WQHHGWR´XQWLOKHZDVTXHVWLRQHG,Q0DUFKKLV doctor advised that his headaches were tension headaches, not migraines. Nor did Mr. Landriault ever mention migraine headaches during his ASP meetings. He explained that he was QHYHUDVNHGIRUVXFKLQIRUPDWLRQ±WKH0LQLVWU\KDd only wanted to know if it could assist him in achieving improved attendance. [18] At the November 12, 2008 meeting, the employer discussed its concerns about Mr. /DQGULDXOW¶VXVHRIVLFNWLPH±DEVHQFHVLQ2007 and 26 absences through the end of August in 2008, including 17 instances where it extended time off between scheduled shifts and 9 times where sick days coincided with overtime worked. Mr. Landriault had never been asked to produce a medical note in connection with these absences. [19] Superintendent Kasha testified that she GHWHUPLQHGWKDWWKH(PSOR\HU¶VFRQFHUQVZHUH not sufficiently addressed and Mr. Landriault would be required to submit medical notes for his - 10 - absences during the next thirty (30) days, unless there was a reasonable explanation for why he could not do so. On November 14, 2008, he received a letter from Superintendent Kasha which stated, in relevant part, as follows: On November 12, 2008, you and your representative met with me to discuss concerns regarding your year-to-date short-term sick absence. At this meeting, you were advised that PDQDJHPHQW¶VFRQFHUQZDVEDVHGXSRQDSDWWHUQ of absences. You were shown documents that demonstrated a reasonable basis for this concern. As a result, you were advised that for a period of one month from the date of our meeting, you would be required to provide a medical certificate for every absence. If, in this one-month period, a culpable absence is demonstrated, a further meeting will be arranged and the periods of review may be extended. In order to be acceptable, a medical certifiFDWHPXVWPHHWWKHIROORZLQJUHTXLUHPHQWV« Failure to provide medical certificates in accordance with this direction, in the absence of a reasonable justification, may lead to a loss of pay for the day(s) in question. As discussed you are encouraged to utilize the various support systems available to ensure your attendance at work. [20] Mr. Landriault testified that he was not absent during the following month, and so the UHTXLUHPHQWEHFDPH³PRRW´%HFDXVHRIWKHQXmber of his absences, however, he was also placed back into the ASP program. He testified that since then he has tried not to use sick time even when sick because he did not want to progress in the ASP program. Instead, he was utilizing other credits, particularly vacation time, to cover his illness as well as the illness of his children. In his view, it was not easy to go to the doctor since it involved a two hour drive, or going to the emergency room since there was no walk-in clinic available. Mr. Landriault filed his grievance on November 12, 2009. Positions of the Parties The Union [21] The Union has raised a number of issues LQUHJDUGWRWKH(PSOR\HU¶VDFWLRQVLQWKLV matter. First, it asserts that the attendance meetings held in regard to pattern absenteeism were - 11 - ³GLVFLSOLQDU\´PHHWLQJV7KH(PSOR\HULQHVVHQFHDOOHJHGWKDWWKHJULHYRU¶VZHUH³IDNLQJLW´ Ms. Mijatovic was stressed and distressed by this. In terms of Ms. Mijatovic, it notes that the OHWWHUVKHUHFHLYHGVWDWHVWKDWWKH(PSOR\HU¶V³FRQFHUQV´ZHUHDGGUHVVHG³DWWKLVWLPH´EXWWKDW monitoring will continue and further meetings might follow. Further, despite assuring her verbally that the meeting was not disciplinary, Supt. Kasha did not put that assurance in her November 14, 2008 letter, nor amend the letter to reflect that when Ms. Mijatovic requested that the Employer do so. In addition word of her inclXVLRQLQWKHJURXSJRWRXWDQGPDQDJHU¶VPDGH FRPPHQWVWKDWVKHZDV³SDUWRIWKDWJURXS´LPSDFWLQJKHUUHSXWDWLRQat the facility. In terms of Mr. Landriault, the Union contends that the November 14, 2008 letter was disciplinary by demanding he provide medical notes (a punishment) as well as by the tone and terms of the letter. It submits that the letter and medical note requirement is a punishment or chastisement for his pattern of absences. [22] In support of its position that the attendanFHPHHWLQJVDQGOHWWHUVZHUH³GLVFLSOLQDU\´WKH Union cites to Re OPSEU (Fitzgerald) and Ministry of Correctional Services, GSB No. 1489/88 (Samuels); 5H+LOWRQ9LOOD&DUH&HQWUHDQG%ULWLVK&ROXPELD1XUVHV¶$VVRFLDWLRQ 'HQHV th Grievance) (2003), 115 L.A.C. (4) 154 (Gordon). >@7KH8QLRQDOVRDVVHUWVWKDWWKH(PSOR\HU¶s use of the same absences for non-culpable DQGFXOSDEOHUHYLHZFRQVWLWXWHVDIRUPRI³GRXEOHMHRSDUG\´,WVXEPLWVWKDWERWK0V0LMDWRYLF and Mr. Landriault had successfully exited the ASP program, and so reasonably thought that they KDGDGGUHVVHGWKHHPSOR\HU¶VFRQFHUQVDERXWWKHLr attendance, only to have the same absences reviewed in terms of culpable patterned absences. It submits that this is an improper mixing of - 12 - culpable and non-culpable absenteeism. In this regard, the Union cites to Re Scarborough Fire )LJKWHUV¶$VVRFLDWLRQ/RFDO - 13 - discretion to be exercised is temporally related to the actual absence and cannot be decided in advance. In support, the Union cites to Re Municipality of Metropolitan Toronto and CUPE, Local 79 (1982), 23 L.A.C. (3d) 271 (Burkett); 5H6W-RVHSK¶V*HQHUDO+RVSLWDO(OOLRW/DNHDQG th 2QWDULR1XUVHV¶$VVRFLDWLRQ 2VERUQH0D\*ULHYDQFH)(2008), 170 L.A.C. (4) 115 (Sheehan); th 5H6W0LFKDHO¶V([WHQGHG&DUHCentre and Canadian Health Guild (1994), 40 L.A.C. (4) 105 (Smith); Re City of Toronto and CUPE, Local 79 ( 1984), 16 L.A.C. (3d) 384 (M. Picher); Re th NAV Canada and Canadian Air Traffic Controllers Association (2000), 86 L.A.C. (4) 310 th (Brault);Re I.U.O.E., Local 951 and Health Sciences Centre (2003) 114 L.A.C. (4) 400 (Spivak);5H0DQLWREDDQG0DQLWRED*RYHUQPHQW(PSOR\HHV¶8QLRQ [2007] M.G.A.D. No. 40 (Jones). The Employer [26] The Employer submits that it acted reasonably and in compliance with the collective DJUHHPHQWZKHQLWUHYLHZHGWKHJULHYRU¶VDWWHndance records and met with them concerning potential patterns of absence. It submits that neither the meetings, nor the letters were disciplinary, noting that the letters are not LQWKHHPSOR\HH¶VSHUVRQQHOILOH. It contends that none of the hallmarks of discipline are present here, nor was the meeting to discuss attendance in and of itself disciplinary. It could, potentially, lead to discipline, but the meeting to discuss identified SDWWHUQVRIDEVHQFHZDVQRWE\LWVHOIGLVFLSOLQH1RUGRHV0V0LMDWRYLF¶s emotional reaction to the meeting indicate that the meeting was disciplinary. The tone of the meeting was at all times professional. Its purpose was not to punish but WRSXWWKHHPSOR\HHVRQQRWLFHRIWKH(PSOR\HU¶V FRQFHUQV,QWHUPVRI6XSHULQWHQGHQW.DVKD¶VIDLOXUHWRUHSO\WR0V0LMDWRYLF¶V1RYHPEHU letter, she did not do so because a grievance concerning the meeting had been filed. In support, - 14 - the Employer cites to Re OPSEU (Union Grievance) and Ministry of the Solicitor General and Correctional Services/Management Board Secretariat, GSB No. 1925/96 (Abramsky); Re OPSEU (Selkirk) and Ministry of Correctional Services, GSB No. 206/84 (Roberts); Re OPSEU (Halall) and Ministry of Agriculture, Food & Rural Affairs, GSB No. 2007-1045 (Briggs); Re OPSEU (Moody) and Ministry of Correctional Services, GSB No. 2446/90 (Kaplan). [27] The Employer further contends that union representatives were allowed to attend the meetings not because the meeting was imposing discipline, but because it is required by Article 44.13, if the meeting is to be allowed into evidence before the Grievance Settlement Board. Article 44.13 states: Attendance Review Meetings 44.13 Where an employee is interviewed by a member or members of management in respect RIWKHHPSOR\HH¶VUHFRUGRIDWWHQGDQFHDWZRrk, no evidence of that interview or of the particular aspects of the attendance record upon which that interview was based shall be admissible before the Grievance Settlement Board in the arbitration of a disciplinary grievance unless the employee was given reasonable notice of the interview and of the right to have Union representation at that interview, and the employee either had such Union representation or declined that representation in writing prior to the interview. >@7KH(PSOR\HUDOVRUHMHFWVWKH8QLRQ¶VDVVHrtion that the grievors were subject to double- jeopardy in regard to these attendance meetings. It asserts that³GRXEOHMHRSDUG\´LVZKHUHWKH same misconduct receives some discipline, then additional discipline is imposed. In the (PSOR\HU¶VYLHZ±QRGLVFLSOLQHWRRNSODFH±HLWKer under the ASP or the review for absenteeism patterns. The Employer cites to Re OPSEU (Giraudy et al.) and Ministry of Community Safety and Correctional Services, GSB No. 2004-3120 (Petryshen); Re Samuel Manu-Tech Inc. and United Steelworkers of America, Local 8782 (Moodie Grievance)[2004] O.L.A.A. No. 807 - 15 - (Carrier);Re OPSEU (Sidney) and Ministry of Transportation, GSB No. 1855/90 (McCamus); Re OBLEU (Drury) and Liquor Control Board of Ontario, GSB No. 1707/84 (Roberts). [29] The Employer further contends that the grievors successful exit from the ASP did not mean that the Employer could not review their absences to determine if a pattern existed. ([LWLQJWKH$63GRHVQRWUHQGHUDQHPSOR\HH¶VDttendance record immune to further review. [30] The Employer also argues that the methodology it used to identify patterns was both reasonable and fair. First, it notes that the same methodology was used for all employees, so no one group was singled out. It submits that the (PSOR\HUGLGPRUHWKDQLWKDGWR±ILOWHULQJ HPSOR\HHVWKURXJKDQXPEHURIWKUHVKROGV±the 2007 attendance record, the 2008 attendance record, and reviewing any medical explanations for the absences, and only then reviewing for potential patterns. It further submits that requiULQJRUPRUHLQVWDQFHVEHIRUHD³SDWWHUQ´ZDV identified was fair and reasonable. It submits that if the methodology used was as flawed as the Union claims, one would have expected far more than 14-16 employees (out of approximately 400) to have been identified as having potential patterns of absence. The Employer then met with the employees, providing them an opportunity to explain and provide information, again ILOWHULQJRXWHPSOR\HHVZKRLQWKHHPSOR\HU¶VYLHZ, did not have to submit medical verification. In its view, based on the evidence it reviewed and the meetings with employees, it reasonably determined that there may be an abuse of sick leave, sufficient to require Mr. Landriault to submit medical notes for his absences for a limited period of time. He had been absent 29 times in 2007 and 26 times in 2008 (through the end of August); there had been no medical explanation for his absences; 17 absences had extended his time off, and 9 were in conjunction - 16 - with overtime shifts. It submits that it had reasonable and probable grounds to require a medical note for his absences, citing Re Canada Post Corporation and C.U.P.W. (Sigaty Grievance)[1992] C.L.A.D. No. 16 (Joliffe); 5H/DEDWW¶V2QWDULR%UHZHULHVDQG%UHZHU\ th Workers Union (1990), 11 L.A.C. (4) 89 (Brandt); Re Ralph and Ministry of Correctional Services, GSB No. 364/80 (Gorsky); Re OPSEU (Jarvalt) and Ministry of Citizenship and Culture, GSB No. 178/83 (Swan); Re Leaside Community Gardens and C.U.P.E., Local 114 [1993] O.L.A.A. No. 708 (Abramsky). [31] The Employer asserts that it did not appl\D³EODQNHW´RU³XQLYHUVDO´UHTXLUHPHQWIRU employees to submit medical documentation. Instead, it carefully reviewed the facts and exercised its discretion in determining whether there was a reasonable suspicion that there might be an abuse of sick leave. In its view, the Employer engaged in a thoughtful, meaningful and measured response to a legitimate attendance concern. It argues that it fully exercised its discretion; it did not abdicate it. In addition, the Employer notes that the letter does not automatically disallow sick pay if no medical certified is submitted. It again allowed for discretion to be exercised. [32] In terms of Article 44.10, the Employer submits that it fully complied with its terms. It notes that by its terms there is no temporal limitation in the provision, and no express requirement that the Employer determine if it suspects potential abuse on the day of the absence. It contends that it may do so before the absence, the day of the absence or afterward. To accept WKH8QLRQ¶VLQWHUSUHWDWLRQWKH(PSOR\HUVXEPLWVwould in effect be adding a temporal limitation - 17 - to Article 44.10 which does not exist, and which is expressly prohibited by Article 22.14.6 of the agreement. [33] Further, the Employer submits that where there is are reasonable grounds to suspect abuse, employers have been permitted to request medical notes in advance - not just at the time of the absence. Indeed, it notes that providing employees notice of this requirement can be useful to the employee. It asserts that the same conclusion applies here. 5H6W-RVHSK¶V+HDOWK Care and CUPE, Local 1144 (1988), 34 L.A.C. (3d) 193 (Joyce); 6REH\¶V,QFDQG8)&: Local 175 (Wight Grievance) [2003] O.L.A.A. No. 215 (Liang); Re Skeena Cellulose Inc. and Christian Labour Association of Canada [2001] B.C.C.A.A.A. No. 164 (Blasina). Reasons for Decision 1.:DVWKH(PSOR\HU¶V5HYLHZRI$WWHQGDQFH3DWWHUQV8QUHDVRQDEOH" [34] The evidence is undisputed that employee absenteeism, after the transfer of CNCC back to the Ministry, significantly increased even though the workforce remained largely the same. This fact led to a review of attendance records to determine if some of the absenteeism might be culpable. [35] The case law clearly establishes that an employer has a legitimate interest in employee attendance. As stated by the Board in Re OPSEU (Union Grievance) and Ministry of Health, *6%1R - 18 - th L.A.C. (4  - 19 - [39] In terms of overtime combined with a sick day, again I find that the five plus criteria overcomes any issue with that. While it is true, as the Union asserts, there is no necessary correlation between a sick day followed by an overtime shift, when such a combination happens on a frequent basis, it can raise a legitimate question. [40] Accordingly, I find no fundamental flaw in the methodology used by the Employer in this matter. It was not an unreasonable exercise of its management rights. 2.Are the attendance meetings and letters discipline? [41] The GSB has determined thDWWKHHPSOR\HU³KDVWKHULJKWto correct employees through guidance, counseling or even warning without engaging in diVFLSOLQDU\DFWLRQ´Re OPSEU (Black) and Ministry of Revenue, GSB No. 885/90 (Dissanayake), cited in Re OPSEU (Halsall) and Ministry of Agriculture, Food and Rural Affairs, GSB No. 2008-1045 (Briggs) at par 33. In theBlack case, a letter of counsel was issued in regard to an incident in which the grievor ³UHIXVHGWRIROORZDQLQVWUXFWLRQJLYHQWR\RXE\\RXUPDQDJHU«´7KHOHWWHUWKHQUHYLHZHGWKH discussion that took place in a meeting to review what had occurred and noted that while DFFHSWLQJWKHJULHYRU¶VH[SODQDWLRQPDQDJHPHQW³HPSKDVL]HGWKHVHULRXVQHVVRIZKDW\RXKDG done and that any future incident of this nature will be considered insubordination and appropriate disciplinary action taNHQ«´:KHQWKHJULHYRUUDLVHGFRQFHUQVDERXWWKHOHWWHU management responded that it was non-disciplinary and was intended to confirm what had been discussed. In testimony at the KHDULQJWKHJULHYRU¶VPDQDJHUVWDWHGWKDWKH³ZDQWHGWRHQVXUH that the grievor understood what was expected ofKLPLQWKHIXWXUH´DQGWKDWWKHPHPRZDV ³LQWHQGHGWRFRQILUPWKHGLVFXVVLRQIRUWKHJULHYRU¶VJXLGDQFH´DQGWKDW³LWZDVQRWLQWHQGHGWR - 20 - EHGLVFLSOLQDU\´7KH*6%FRQFOXGHGWKDWWKHmemo was non-disciplinary and did not punish the grievor for his conduct. InsteaGLW³H[SUHVVHGFRQFHUQVDERXWKLVFRQGXFW´DQG³H[SODLQHGWR him that he should not engage in similar conduFWLQWKHIXWXUH´(Re OPSEU (Black) at p.7). The fact that it warned him that any future incident would be considered insubordination subject to GLVFLSOLQHGLG³QRWPDNHWKHPHHWLQJRUPHPRUDQGXPGLVFLSOLQDU\LQQDWXUH´ It was significant to the Board that the memo was not placed in thHJULHYRU¶VSHUVRQQHOILOHand was stated to be non-disciplinary. [42] In Re OPSEU (Halall), supra at par. 34 and 35, the Vice-Chair quoted two other GSB GHFLVLRQVFRQFHUQLQJZKDWFRQVWLWXWHV³GLVFLSOLQH´,QRe OPSEU (Barillari) and Ministry of Community and Social Services, GSB No. 2002-2390 (Dissanayake), the grievor was given two FRXQVHOLQJOHWWHUVZKLFKVHWRXWWKH(PSOR\HU¶s expectations concerning her behaviour and criticized certain events in which she was involved. The decision noted that the grievor was distressed with the information in the letters but that was not the test to be applied. It continued at par. 62: Certainly, if the grievor repeats the conduct which was the subject of the letters, the employer may take disciplinary action, as union counsel suggests. In that event the employer will be obligated to establish just cause in the event the discipline is grieved. However, that does not have any relevance to whether the letters are themselves disciplinary. The employer is entitled to initially attempt to correct an employees conduct in a non-disciplinary way. As the Board observed in Re Black, that is to be encouraged. If the non-disciplinary approach does not produce the corrective results, it is open to the employer to initiate a disciplinary response. The non-disciplinary letters, etc. will not form a step in the progressive discipline system, but PD\ZHOOVHUYHWRHVWDEOLVKWKDWWKHJULHYRUZDVPDGHDZDUHRIWKHHPSOR\HU¶VH[SHFWDWLRQVRI the employee should that be an issue. In regard to the other cited decision, Re OPSEU (Cloutier) and Ministry of Revenue, GSB No. 108/77 (Swinton), Vice-Chair Briggs stated at par. 35: - 21 - It was said in Re Cloutier (supra) that when an employee is advised that they may be GLVFLSOLQHGLQWKHIXWXUH³LWLVLPSOLFLWLQVXch an admonition that such an appraisal is not EHLQJPDGHDWWKDWWLPH´)XUWKHULWZDVVDLGWKDW³WKHHPSOR\HHLVsimply being forewarned that such an appraisal is a distinct possibility if certain conduct about which the employer FRPSODLQVLVQRWUHFWLILHG´ [43] Similarly, in Re OPSEU (Russell Selkirk) and Ministry of Correctional Services, GSB No. 206/84 (Roberts), the Board considered a PHPRUHIOHFWLQJD³FRUUHFWLYHLQWHUYLHZ´ concerning attendance. The memo noted that the grievor had been absent on six separate occasions, five of which were in conjunction with the regular days off or on weekends. It noted that he was informed that poor attendance was detrimental to an HPSOR\HH¶VUHFRUGDQG GLVUXSWLYHWRWKHLQVWLWXWLRQ,WDOVRQRWHGWKDW³WKHIDLOXUHWRLPSURYHFRXOGUHVXOWLQIXUWKHU FRXUVHVRIDFWLRQEHLQJWDNHQ´ [44] The Board, at p. 4, quoted an excerpt from Brown and Beatty, Canadian Labour nd Arbitration(2). In part, that quote reads: It follows from what arbitrators conceive to be the essence of disciplinary sanctions that a ZULWWHQZDUQLQJZKLFKIRUPVSDUWRIWKHJULHYRU¶VHPSOR\PHQWUHFRUGZKLFKLVLQWHQGHGWR induce her to alter her behaviour and which may have a prejudicial effect on her position in future grievance proceedings will likely be regarded as being disciplinary in nature. &RQYHUVHO\ZKHUHWKHZULWWHQZDUQLQJIRUPVQRSDUWRIWKHHPSOR\HH¶VUHFRUGIRUWKHSXUSRVH of determining the severity of future discipline, or where it does not involve a change in status or a monetary loss, or where the warning merely indicates what disciplinary or other action might be taken in the future, arbitrators have ruled that such notations are not disciplinary in QDWXUH« Following this reasoning, the Board determined that³>L@QRUGHUWRFRQVWLWXWe discipline, a written ZDUQLQJPXVW«EHOLNHO\WRKDYHa prejudicial effect on the position of the grievor in future JULHYDQFHSURFHHGLQJV´%DVHGRQWKHIDFWVWKHUH the Board found that the attendance letter was non-disciplinary. It was not intended as discipline and did not form paUWRIWKHJULHYRU¶V - 22 - disciplinary record, nor would it be used in some future incident. There was no allegation of fault on the part of the grievor and, while there was some ambiguity to the letter, there was no allegation that the absences were not bona fide. [45] The attendance meetings and letters received by the grievors are similar to the situations cited above. The meetings were to address concerns that the Employer KDGDERXWWKHJULHYRUV¶ DWWHQGDQFH±WKDWWKHUHDSSHDUHGWREHSDWWHUQVWRsome of the absences. At neither the meetings nor in the letters was there an allegation that the absences were not bona fide, although as in Re OPSEU (Selkirk), supraDWS³LWZDVZRUGHGLQVXFKDZD\DVSRVVLEO\WRUDLVHDQLQIHUHQFH WKHUHRI´%XWHYHQVRWKH(PSOR\HUXQGHUWKH*6%FDVHODZLVSHUPLWWHGWR³FRUUHFW employees through guidance, counseling, or even warning without engaging in disciplinary DFWLRQ´Re OPSEU (Black), supra. [46] The attendance meetings, as stated by Superintendent Kasha, were to express the (PSOR\HU¶VFRQFHUQVDQGFODULI\Hxpectations about attendance. It was also an opportunity for the grievors to address the EmplR\HU¶VFRQFHUQV,WSXWWKHJUievors on notice that the Employer would be reviewing attendance to determine if patterns existed, which the Employer has the right to do.Canada Post Corporation and C.U.P.W., supra. Although the meetings were upsetting to both grievors, particularly Ms. Mijatovic, they were not intended to punish; the intent was to inform and clarify expectations. Likewise, baseGRQWKH*6%¶VFDVHODZWKHIDFWWKDWWKHOHWWHU to Mr. Landriault advised him that a future culpable absence could lead to a loss of sick pay does not render the letter disciplinary.Re OPSEU (Black), supra. - 23 - [47] Neither the fact of the mHHWLQJVQRUWKHUHVXOWLQJOHWWHUVZHUHSODFHGLQWKHJULHYRUV¶ personnel files. Further, the grievors were assured, verbally, that the process was non- disciplinary. It would have been better, as stated in Re OPSEU (Selkirk), supra, if the letters specifically stated that the review process was non-discLSOLQDU\8QGHUWKHFLUFXPVWDQFHV± particularly the filing of the grieYDQFH±LWLVXQGHUVWDndable that Superintendent Kasha did not amend the letter, as requested by the grievor. But, as in Selkirk, that omission does not render the letter disciplinary. [48] The situation here is markedly different from the situation in Re Hilton Villa Care Centre DQG%ULWLVK&ROXPELD1XUVHV¶8QLRQ 'HQHV*ULHYDQFH VXSUD, cited by the Union. In that case, a letter sent to the employee concerning QXUVLQJSUDFWLFHLVVXHVWKRXJKODEHOHGD³QRQ GLVFLSOLQDU\OHWWHURIH[SHFWDWLRQ´ZDVGHWHUPLQHGWREH³FOHDUO\DFFXVDWRU\´DQGLQYROYHG ³FXOSDEOHPLVFRQGXFW´,WZDVDVIRXQGE\WKHDUELWUDWRUDWSDU³VRPHWKLQJPRUHWKDQWKH clarification of performance expectations; its purpose was also to correct misconduct at the ZRUNSODFH´,WZRXOG³XQGRXEWHGO\KDYHDQDGYHUVHHIIHFWRQWKH*ULHYRU¶VHPSOR\PHQW SURVSHFWV´ 3DU 7Kat is not the case here. [49] Nor, in the case of Mr. Landriault, does the requirement that he produce a medical certificate for any absence for the next thirty days render the letter disciplinary. Whether or not the Employer had the right to do so under Article 44.10 will be addressed below, but the requirement itself does not consWLWXWH³GLVFLSOLQH´7KHUHquirement to produce a medical certificate is not a penalty to induce better behaviour; it is a mechanism to ensure that an absence isbona fide. The requirement to produce a medical certificate for future absences does not, in - 24 - and of itself, have a prejudicial effect on the grievor in future grievance proceedings. His failure to provide a note, when required, may have a prejudicial effect, but that does not mean that the imposition of the requirement does. [50] Finally, the fact that the grievors were permitted to bring a union representative to the attendance meeting does not make the meeting disciplinary. As Superintendent Kasha testified, the meeting could lead to potential discipline, and it was therefore both prudent and appropriate for the individual to have the assistance of a union representative. But again, the meeting itself, for the reasons set forth above, was not disciplinary. 3.:DVWKHUH³GRXEOHMHRSDUG\´KHUHDQGGLGWKH(PSOR\HULPSURSHUO\FRPELQH culpable and non-culpable absences? [51] The GSB has determinedWKDWWKHWHUP³GRXEOHMHRSDUG\´³KDVEHHQOLPLWHGWR circumstances in which management, having made a final determination of what discipline to LPSRVHWKHUHDIWHUVHHNVWRUHYHUVHLWVHOIDQGLPSRVHPRUHVHYHUHGLVFLSOLQH´Re OBLEU (Drury) and Liquor Control Board of Ontario, GSB No. 1707/84 (Roberts), at p. 6. The Union, however, does not rely on this doctrine in a technical sense, but on the concept, asserting that the grievors having their attendance again reviewed and questioned, after they successfully exited the attendance management program based largely on the same absences, is a form of double- jeopardy. - 25 - [52] The ASP dealt solely withQRQFXOSDEOHRU³LQQRFHQW´DEsenteeism. As stated in Re OPSEU (Union Grievance) and Ministry of the Solicitor General and Correctional Services/Management Board Secretariat), supra at p. 4: According to the Attendance Support Program ManuaOWKHJRDORIWKHSURJUDPLVWR³PDQDJH absenteeism in the Ontario Public Service by committing to employment accommodation and assistance for all employees who require it and prRYLGLQJDFRQVLVWHQW236ZLGHDSSURDFK´,W ³IRFXVHVRQLQQRFHQW RUQRQFXOSDEOH DEVHQWHHLVP´ZKLFKLVGHILQHGDV³ZKHQDQHPSOR\HH WKURXJKQRIDXOWRIKLVRUKHURZQLVDEVHQWIURPWKHZRUNSODFHEHFDXVHRILQMXU\RULOOQHVV´ 7KHPDQXDOVWDWHVWKDW³>W@KLs type of absence must be treated appropriately, as a non- disciplinary issue, recognizing that affected employees may require assistance to return them WRUHJXODUGXWLHV´&XOSDEOHDEVHQWHHLVPRUDbuse of sick leave provisions, is defined as ³GHOLEHUDWHPLVUHSUHVHQWDWLRQRUPLVXVHRIVLFNOHDYH´DQG³LVGHDOWZLWKWKURXJKWKH GLVFLSOLQDU\SURFHVV´ >@7KXVWKHUHDUHWZRW\SHVRIDEVHQFHV±culpable and non-culpable. The existence of a program to address non-culpable absences does not mean that the Employer may not review an HPSOR\HH¶VDEVHQFHVWRGHWHUPLQHLIVRPHRIWKem may not be legitimate. The assumption, with innocent absenteeism, is that the absences are legitimate. The focus in culpable absenteeism is completely different, and with patterns, it is only in hindsight that one can detect if a pattern exists. Inclusion in the ASP, or exiting it, does not mean that the Employer may not review the HPSOR\HHV¶DEVHQFHVWRGHWHUPLQHLIWKHUHLVDquestionable pattern to them. As stated by employer counsel in closing argument, exiting WKH$63SURJUDPGRHVQRWPDNHDQHPSOR\HH¶V attendance immune from review. [54] Both grievors, however, felt that it was unfair for the Employer to question their absences after they had successfully exited the ASP program. While that view is understandable, it is based on the view that the two types of absences are mutually exclusive. To a certain extent, that is correct, but not entirely. In an attendanFHSURJUDPWKH(PSOR\HUPD\QRW³PL[WKHWZR´Re - 26 - Scarborough Fire Fighters Association, Local 626 and City of Scarborough (Attendance Program Grievance)[1995] O. L.A.A. No. 9 (Mitchnick), at par. 15. Rather, the two have to be kept separate, but they may and do coexist. [55] Then Arbitrator Whitaker in Re Communications, Energy & Paperworkers Union, Local 33-X and Hydro Agri Canada (Attendance Management Policy Grievance) (2001), 95 L.A.C. th (4) 99 (Whitaker), at par. 22, noted that the two types of policies may separately coexist: Policies which deal with culpable sick time abuse and policies which deal with non-culpable attendance management should remain distinct and separate. Employees must clearly understand the distinctions between these two types of policies and should not be led to believe that discipline will follow as a result of absences which are beyond their control. At the same time, it is quite appropriate for employees to be advised that discipline will apply where there is culpable behaviour. Where it appears that the two DUH³EOHQGHG´DQGWKH distinctions are blurred, clarity should be restored. [56] In this case, the Employer did not blend the two. Instead, it did a separate staff-wide review of attendance to determine if any patterns were present. The grievors, however, appeared to have had some confusion about this, believing that exiting the ASP meant that their absences could not be further questioned. At the meetings, Superintendent Kasha spent time discussing the differences between culpable and non-culpable absenteeism. This, then, may well be an area that needs further clarification. Nevertheless, although the two types of absences cannot be FRPELQHGLQWRDVLQJOHSURJUDPWKH(PSOR\HU¶VVHparate review of the JULHYRUV¶DWWHQGDQFHIRU potential patterns was not improper and did not constitute a form of double-jeopardy. 4.Did the Employer violate Article 44.10 of the collective agreement? > - 27 - $UWLFOH±LVWKHSLYRWDOLVVXHLQWKLVFDVHand the most difficult one. Article 44.10 provides as follows: $IWHUILYH  GD\V¶DEVHQFHFDXVHGE\VLFNQHVVQROHDYHZLWKSD\VKDOOEHDOORZHGXQOHVVD certificate of a legally qualified medical practitioner is forwarGHGWRWKHHPSOR\HH¶VPDQDJHU certifying that the employee is unable to attend to his or her official duties. Notwithstanding this provision, where it is suspected that there PD\EHDQDEXVHRIVLFNOHDYHWKHHPSOR\HH¶V manager may require an employee to submit a medical certificate for a period of absence of less than five (5) days. The second sentence of this provision, by its terms, does not include a temporal limitation. The question is whether the provision, as a whole, allows the employer to determine, in advance, that ³WKHUHPD\EHDQDEXVHRIVLFNOHDYH´DQGWhus require an employee to submit a medical certificate for a period of time as the Employer asserts, or whether the Employer must assess if it suspects abuse at the time of the absence as the Union asserts. There is case law to support each view, although the predominant view VXSSRUWVWKH8QLRQ¶VLQWHUSUHWDWLRQ [58] In Re International Union of Operating Engineers, Local 987 and Health Sciences th Centre(2003), 114 L.A.C. (4) 400 (Spivak), involved a Union policy grievance contesting the Attendance Management Program, which gave the employer the discretion to require a medical certificate for each absence after an employee had EHHQDEVHQWVL[WLPHV7KHSDUWLHV¶DOVR introduced evidence that one employee, due to his high rate of absenteeism, had been required by the employer to produce a medical certificate for any future absence due to illness until he achieved regular attendance. The arbitrator held at par. 68 that ³GLVFUHWLRQ>WRUHTXLUHDPHGLFDO certificate] is not compatible with a blanket policy in advance unrelated to the individual FLUFXPVWDQFHVRIHDFKDEVHQFHWKDWLVLPSRVHGRQVRPHHPSOR\HHV´1RUZDVWKHSROLF\VDYHG - 28 - by the fact that the employer could determine which employees who met the threshold had to produce medical certificates. The arbitrator concluded at par. 69: While management may exercise a discretion as to which employees that meet the threshold will be required to produce medical certificates, those employees will have the automatic requirement to produce medical certificates in the future based on past conduct and not on the specifics of the future absences. Those employees will have to automatically produce medical certificates without any consideration of the actual circumstances of the absence giving rise to DQLQGLYLGXDOHPSOR\HH¶VFODLPIRUVLFNOHDYHLQWKHIXWXUH In terms of the individual who was required to produce a medical note for future absences, the %RDUGGHWHUPLQHGWKDWKH³ZRXOGKDYHWKHDXWRPDtic obligation to provide a medical certificate for every absence in the future relating to illness, irrespective of the nature and duration of the illness, and even when there is no question about the legitimacy of his claim to have been LQFDSDFLWDWHGE\LOOQHVV´7KDWZDVQRWSHUPLVVLEOHEXWWKHHPSOR\HUFRXOGUHTXHVWDQRWH³RQD case by case basis where there are reasonable groXQGVWRGRXEWWKHWUXWKRIWKHHPSOR\HH¶VFODLP WKDWKHZDVDZD\EHFDXVHRILOOQHVV«´ [59] The idea that discretion must be exercised on a case-by-case basis is supported by a number of the arbitration cases cited by the Union. E.g., Re City of Toronto and C.U.P.E., Local 79 (1984), 16 L.A.C. (3d) 384 (M. Picher);Re NAV Canada and Canadian Air Traffic Control th Association (2000), 86 L.A.C. (4) 370 (Brault); Manitoba and Manitoba Government (PSOR\HHV¶8QLRQ [2007] M.G.A.D. No. 40 (Jones); 5H6W-RVHSK¶V*HQHUDO+RVSLWDO(OOLRW th /DNHDQG2QWDULR1XUVHV¶$VVRFLDWLRQ 2VERUQH0D\*ULHYDQFH (2008), 170 L.A.C. (4) 115 (Sheehan). - 29 - [60] Some of these cases rely on a decision by Arbitrator Swan in Re Meadow Park Nursing Home and Service Employees International Union, Local 329 (1983), 9 L.A.C. (3d) 137 (Swan), LQZKLFKWKHFRQFHSWRI³GLVFUHWLRQ´LQUHODWLRQWRVLFNSD\ZDVdiscussed. In that decision, the board of arbitration cited to Mullan, Administrative Law (Carswell, 1973) for, among other WKLQJVWKHLGHDWKDW³GLVFUHWLRQVKRXOGEHH[HUcised in relation to each individual matter coming before the decision-maker and should not be automatically determined or even fettered by reason RIDULJLGSROLF\ODLGGRZQLQDGYDQFH´*XLGelines or principles for future action were DFFHSWDEOH³VRORQJDVKHVWLOOFonsiders the merits of each individual matter for decision in the light of those guidelines and principles and is prepared to admit of exceptions to the general policy in appropriate caseV´7KHERDUGGHWHUPLQHGDWS>:]e think that the exercise of the HPSOR\HU¶VGLVFUHWLRQPXVWEHLQJRRGIDLWKPXVW be a genuine exercise of discretion and not merely the application of a rigid policy, and must include a consideration of the merits of each LQGLYLGXDOFDVH«´ [61] The Employer contends, however, that it KDVIXOO\H[HUFLVHGLQGLYLGXDOGLVFUHWLRQ± through its filtering review and individual meetings, and that it exercised discretion in determining that certain employees, such as Mr. Landriault, did not sufficiently address the HPSOR\HU¶VFRQFHUQVDQGWKDWLWWKHUHIRUHKDGDreasonable basis to suspect that there may be an abuse of sick leave so as to require the employee to submit a medical certificate for absences for the next thirty days. It submits that the emSOR\HHV¶SDVWDWWHQGDQFHUecord is a sufficient, objective basis to suspect that there may be abuse of sick leave. - 30 - [62] This was an approach accepted in 5H6W-RVHSK¶V+HDOWK&Hntre and Canadian Union of Public Employees, Local 1144 (1988), 34 L.A.C. (3d) 193 (Joyce). In that case, the Employer, GXHWRDQHPSOR\HH¶VH[FHVVLYHDEVHQWHHLVPrequired him to produce a medical note for every absence. The arbitrator concluded that it could do so, at pp. 202-203: *LYHQWKHJULHYRU¶VKLVWRU\RIXQDFFHSWDEOHattendance, the employer had reasonable grounds for concern over the legitimacy of the frequent absences from work. This being so, the employer had reasonable grounds to question, in depth, the reason for each absence. This being so, the employer acted properly in its decision that the grievor must produce a medical certificate in the case of each absence due to alleged illness until such time as his absenteeism reached an acceptable level. ,QWKHDUELWUDWRU¶VYLHZLWZDV³IDLUDQGRIDEXQdant common sense for the grievor to be aware of WKLVUHTXLUHPHQWLQDGYDQFHRIHDFKVXFKDEVHQFH´ [63] Similarly, in Re Skeena Cellulose Inc. and Christian Labour Association of Canada, Local 44 [2001] B.C.C.A.A.A No. 164 (Blasina), the Company had observed the grievor in circumstances which led it to suspect that the grievor had been untruthful about his absences, and thereafter instructed hiPWREULQJDGRFWRU¶VQRWHLIKHZDs absent on medical grounds in the future. The arbitrator noted, at par. 18, that³DUELWUDWRUVKDYHUHDFWHGXQIDYRXUDEO\ZKHUH medical certificates are required as a matter of general policy, and not in response to individual RUSDUWLFXODUFLUFXPVWDQFHV´ZKLFKZDVYLHZHG³DV an abdication of manageULDOGLVFUHWLRQ´7R the arbitrator, however, the Company did not adopt a blanket policy applicable to all employees ±MXVWZLWKUHVSHFWWRWKHLQGLYLGXDO+HDOVRdetermined that the Company could not make this an ongoing requirement into the future indefiQLWHO\EXWFRQFOXGHGWKDW³WKHUHPD\EH circumstances where it would be appropriate to require a medical certificate to verify every asserted medical absence occurring within a deILQHGSHULRGRIWLPH´+HFRQWLQXHG³)RU example, where an employee has demonstrated a pattern of excessive absenteeism, characterized - 31 - by numerous short absences, and perhaps for varying reasons or perhaps exhibiting some connection to weekends, it would not be unreasonable for an employer to suspect some measure RIFXOSDEOHFRQGXFW´7RWKHVDPHHIIHFWLV5H6REH\¶V,QFDQG8QLWHG)RRG &RPPHUFLDO Workers International Union, Local 175 (Wight Grievance), supra. [64] The parties do not dispute that discretion must be exercised in relation to the second sentence of Article 44.10. They differ in regard to when that diVFUHWLRQPD\EHH[HUFLVHG±LQ advance for a period of time based on past conduct, or in relation to an actual absence. The (PSOR\HUDUJXHVWKDWWRDFFHSWWKH8QLRQ¶VLQWHUSUHWDWLRQLPSRVHVDWHPSRUDOOLPLWDWLRQQRW found in the language of the collective agreement. With respect, I cannot agree. It is, instead, a matter of interpretation of the provision. After careful consideration, I conclude that the discretion related to Article 44.10 must be exercised at the time of the absenFH±DOWKRXJKLWPD\ EHLQIRUPHGE\WKHHPSOR\HH¶VSDVWDEVHQWHHLVPrecord and the existence of any patterns of absence. [65] What this means is that the Employer may not decide, as it did with Mr. Landriault, that he must provide a medical note for any absence during the next thirty days. There may be times, as noted in Re International Union of Operating Engineers, Local 987, supra at par. 69, when WKHUHLV³QRTXHVWLRQDERXWWKHOHJLWLPDF\RIKLVFODLPWRKDYHEHHQLQFDSDFLWDWHGE\LOOQHVV´ 7KH(PSOR\HUPD\KRZHYHUEDVHGRQWKHHPSOR\HH¶s past attendance record, request a medical note for an absence that involves the same patteUQ±RUDQ\RWKHUVXVSLFLRXVDEVHQFH7KH HPSOR\HH¶VSDVWUHFRUGRIDWWHQGDQFHLVFOHDUO\Drelevant factor for the employer to consider in the exercise of its discretion under Article 44.10. - 32 - [66] In light of this determination, I find it unQHFHVVDU\WRFRQVLGHUWKH8QLRQ¶VRWKHU FRQWHQWLRQFRQFHUQLQJ$UWLFOH±QDPHO\WKDWan instruction to provide a medical note for each absence violates the first sentence of that provision, and therefore violates the collective agreement. [67] Finally, I note that no arguments were presented concerning Article 3 of the collective agreement or the Ontario Human Rights Code. Conclusion: For all of the reasons set forth above, I conclude as follows: 1.The methodology used by the Employer to determine attendance patterns was not unreasonable. 2.7KHDWWHQGDQFHPHHWLQJVDQGOHWWHUVGLGQRWFRQVWLWXWH³GLVFLSOLQH´ 3.7KHUHZDVQR³GRXEOHMHRSDUG\´LQYROYHGLQWKH(PSOR\HU¶VUHYLHZLQJWKHVDPHDEVHQFHV for potential patterns that had EHHQLQYROYHGLQWKHJULHYRUV¶inclusion in and subsequent exit from the ASP. 4.The Employer violated Article 44.10 when it required Mr. Landriault, in advance, to submit a medical certificate for each absence for the next thirty days. 5.The November 14, 2008 letter to Mr. Landriault should be amended to delete any reference to such a requirement. nd Dated at Toronto this 2 day of September 2011. Randi H. Abramsky, Vice-Chair