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HomeMy WebLinkAbout1976-0012.Temple.76-05-0712/ 76 CROWN EMPLOYEES GRIEVANCE SETTLEMENT kInAll 416/965/1410 0ueelTs Park Toron~a. Onreric MIA 125 ---..- I IN THE MATTER OF AN ARBITRATION Under The CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD Between: Miss Susan Temple And (The Grievor) The Ministry of Health (Queen St. Mental Health Centre) (The Employer) Before: D. M. Beatty - Chairman 'Mr. E. J:Orsini - Member Mr. H. E. Weisbach - Member For the Grievor Mr. George Richards - Representative Ontario Public Service Employees Union For the Employer Mr. I. Freedman - Counsel Ministry of Health Hearings~ Westbury Hotel, Toronto, Ontario, March 11, 1976 Westbury Hotel, Toronto, Ontario, April 9, 1976 & 2. In the grievance brought before this Board, Miss Susan Temple asserts that she was improperly terminated on February 9, 1976. More specifically, Miss Temple, who from February 10, 1975 until February 9, 1976 was employed on the probationary staff as a Registered Nurse at the Ministry's Queen Street Mental Health Centre, claims that the employer acted unreasonably and improperly . _ in failing to appoint her to the permanent staff at the conclusion of her probationary period. At the outset of the hearing the parties advised the Board that in light of our earlier ruling on Re: Eriksen U/75 they were ~agreed that we were properly constituted and had jurisdiction to hear Miss Temple's grievance. Indeed and notwithstanding that this Board listened to the evidence of the parties over the course of two days, there is in fact little, if any, disagreement between them with respect to the material circumstances surrounding this grievance. Rather it is the con- elusions that are properly to be drawn from those circumstances that is the subject in issue between the parties. Very simply,and as noted above,it was agreed by the parties that Miss Temple commenced her employment with the Ministry at its Queen Street facility on February 10, 1975 as a probationary employee. Further,there was no dispute between them that except for the matter of her attendance Miss Temple demonstrated herself to be a competent and able employee. Indeed it was only because of what the employer perceived to be her inadequate and unacceptable attendance record that she was not placed on the hospital's permanent staff. Moreover the parties were agreed that on its face 3. the qrievor's record of attendance was palpably deficient. Thus on the figures submitted by the employer which were not seriously challenged by the grievor, Miss Temple was absent on twenty separate occasions involving a loss of some 46 days of work. As computed by the employer, such loss represented some 17.6% of her available working days during the course of the year. Further, of these twenty instances of absence the employer's evidence reveals that Miss Temple was away from work on two occasions on compassionate leave involving a loss of two days; on three occasions on Workmen's Compensation leave involving a loss of twenty-three days, and on fifteen oc- casions for reasons of sickness and illness involving a loss of twenty-one days. In the result and perhaps not surprisingly it was not seriously challenged that on the employer's records Viss Temple's rate and quantum of absenteeism far exceeded that of any other nurse in the hospital. In addition to this statistical evidence, the union adduced certain additional evidence with respect to the underlying causes which precipitated the grievor's absences. Again with respect to this evidence, there was in fact substantial agreement between the parties. Thus there was no dispute between them that Miss Temple's absences were all for legitimate and blameless reasons. Indeed at no time did the employer seriously question the bona fides of any of Kiss Temple's various absences. Thus and with respect to each of the Workmen's Compensation claims which resulted in the loss of twenty-three working days the parties were agreed that on each occasion Niss Temple was attacked by a patient, did suffer some injury, and as a consequence, was required to absent herself from her work. Similarly and with respect to each of the illnesses which ,ii 4. precipitated the other twenty-one days of absence, there was no evidence before this Board which would suggest that the orievor did not in ,fact suffer the illnesses and infirmities that she claimed caused her to be absent from work. Indeed on the evidence before this @oard, there can he no dispute as to the particular causes nor as to the extent of the illnesses and injuries which precipitated each of Piss Temple's various absences. That is, while the employer queried whether for a particular compensation claim the qrievor suffered as seriously as the incident might otherwise have sugqerted, there was no evidence proferred to this Board which in any way challenged or contradicted her testimony as to the origin of her various illnesses and ailments, nor as to the severity o,f their effect. Indeed, as discussed below, what other evidence was presented to this Board on these matters tended to corroborate the griever's testimony. That is and with reference to the three compensation claims which resulted in Miss Temple being absent from work, this Board has simply no evidence before it to challenqe the grievor's description of the extent of the in.juries which were occasioned by each of the attacks to which she was sub.jected. Rather her evidence as to the physical consequences of those attacks stands uncontradicted. In this regard she testified that on each occasion she was under the care of and did in fact consult her personal physician during the entire period of each of these absences. Moreover on each of these occasions she claimed that the period she was required to be absent from work was in fact prescribed by her personal physician and in none of these instances was her claim even challenqed either by the employer or the Workmen's Compensation authorities. !I Similarly and with respect to the fifteen occasions on which the qrievbr was absent owing to illness, her evidence as to the cause of her infirmities stands uncontradicted. With respect to these absences essential1.y her evidence was that during the period from January 1975 until September of that year she was continually experiencing symptoms of nausea, vomiting and diarrhea which ailments were the primary and operative cause of virtually all of her absences throughout that period. Indeed it was her evidence and her absenteeism record confirms that all of her absences during this period, with the exception of those occurring on Varch 17 and June 23 were associated with and could be attributed to such abdominal and gastric ailments. Moreover, according to the 9rievor and again there was not.a scintilla of evidence to the contrary, throughout this period she had consulted her physician and was undergoing a series of tests and examinations in order to deterl-ine the precise source of these difficulties. However, she testified, and a medical report submitted by her physician confirms, that all of these tests were negative until September of that year when she was referred to a gynecologist who suggested that the source of her difficulties most probably could be ascribed to the ingestion of oral contraceptives which she had begun to use shortly before she had commenced her employment with this Ministry. Although, as the employer contended Miss Temple's physician at no time specifically certified that thn oral contraceptives were in fact the cause of her difficulties, the absenteeism record itself does provide some corroboration for what otherwise still must be regarded as her uncontradicted evidence. From that record it is clear that none of the absences that occurred 6. after September, when she was no longer taking the oral contraceptives, were caused by illnesses which were associated with the symptoms described earlier. Rather with the exception of one absence caused by a cold and one precipitated by an accident, all of the remaining "absences due to sickness" relate to severe menstrual cramps, and dysmenorrhea. In turn,according to Miss Temple's evidence, which in this instance is corroborated not only by her absenteeism record ~_ but, on the final occasion by a medical certificate, virtually all of these difficulties can be ascribed to the insertion in September of that year of an I.U.D. contraceptive device. Very simply, it was her evidence that all of her absences during the period from October 1975 until January 1976, with the exceptions noted above, could be attributed to the difficulties she experienced after she was taken off oral contraceptives and was prescribed the 1.il.n. Indeed so difficult was her experience with this device that ultimately on January 17, 1976 the date of her final absence, she was admitted to hospital to have it removed. It is against that evidence that Miss Temple claims that with two or three isolated exceptions (the bona fides of which the employer did not challenge) all of her absences can now be attributed to isolated instances of patient attack, the ingestion of oral contraceptives and the insertion of the I.U.D. Apart from these particular conditions, the latter two of which at least have now been determinatively resolved, Miss Temple is of the view that she was,and perhaps more critically presently is, otherwise in good health and , should be capable of regular attendance in the future. That as well is the opinion of her personal physician. AS we have already noted the employer, for its part, did not adduce any evidence of a particular nature to contradict what is admittedly an ex post facto diagnosis of the griever's ailments. Indeed and notwithstanding a careful and probing cross-examination of the grievor, no testimony was elicited from her which in any way undermined her testimony in chief. In fact, much, if not all of the employer's argument at the conclusion of the hearing was premised on the assumption that the grievor's various afflictions and ailments could be ascribed to the causes she described. However and in sharp contrast with the grievor's conclusions, the employer argued that Wiss Temple's experiences during the course of her probationary year only serve to confirm the reasonableness of the employer's decision that she is not a person who merits bein? placed on its permanent staff. Pointing to the unique or at least exaggerated responses to both the oral contraceptive and the I.U.D., to her proclivity to being attacked by patients in the hospital, to the prolonged duration of her absences while on compensation, to the fact she suffers certain allerqies and may not be administered certain drugs, and to the fact that on one occasion prior to her employment with the Elinistry she was involved in an accident as a result of which she broke some toes, the employer claimed Miss Temple could only be characterized in terms analogous to the person known to the common law of negligence as the thin skull victim'and/or to a person who appears to be fated to suffer from unique infirmities or react in c exaggerated fashion to what otherwise would be considered common and minor ailments. Put at its simplest, it was the employer's position that characterizing the griever in such a fashion it necessarily follows that it must be entitled to protect itself from the losses that would be'occasioned by placing such a person eon its permanent staff. . . In assessing the merits of Miss Temple's grievance, it is, we believe, important for, this Board to reaffirm the nature of the determination that we perceive we are required to make in assessing an employer's decision to terminate a probationary employee. We have already noted in our earlier award, Re Eriksen U/75, that the grounds on which a probationer may be terminated from his or her employment are broader than those which would support the dismissal of a permanent employee. Further, and for reasons more fully described in that award, this Board is of the view that its review of a probationer's grievance against his or her termination can not and will not be of the nature of a fresh appeal of the employer's decision. However, as noted in that award, it does not follow from such an assertion that an employer has a completely unfettered right to terminate the services of a probationer at will. Rather we believe that it follows from the very nature of the probationary period not only that the employer is entitled to some latitude in exercising its discretion as to which employees it will place on its permanent staff but also that a probationer who satisfies those standards and expectations reasonably promulgated by the employer is entitled to expect that he or she will not be terminated at the conclusion of their probationary period. Thus and to put the matter somewhat differently, in grievances of this nature it is the primary, if not the exclusive function of this fioard to ensure that standards against which the probationary employee's performance is measured, together with the application of those standards to the employee concerned are fair and reasonable in all of the circumstances. Applying those standards to the instant case, there can be little dispute that a standard of regular attendance is a reason- able and proper one against which an employer may assess the suitability of a probationary employee for placement on the permanent staff. As the employer quite properly argued the concept of regular attendance has in our society virtually assumed the proportions of a cultural assumption. However, and with respect to the application of such a standard to the circumstances of Miss Temple's experience, much more difficult and complex considerations arise. That is while acknowledging the employer's right to expect regular attendance from its prospective employees, it may not follow in every case that an employee who has been absent from work for a considerable period during their probationary or any other year is incapable of regular attendance in future years. Very simply in certain instances the absenteeism record of an employee in any one year may not accurately reflect that employee's past attendance record, nor his or her capability for regular attendance in the future. It is in essence a realization of that fact, which has induced arbitrators in determining whether an employer may properly terminate the services of an employee who for reasons of incapacity or illness can not for any given period maintain a regular nattern of attendance, to examine both the past absenteeism record of the grievor and as well the capability of that employee to report for work on a regular basis in the future. More specifically, by focusing upon such criteria as the past employment record of the 10. qrievor, the nature of and the causes for the absences in the past, the persistence of the attendance problem, the effect of earlier attempts by the employer to rectify it, the frequency and duration of the absences as well as any medical prognostication as to the orievor's ability to report on a regular basis in the future, the arbitrator attempts to make some reasoned judgement as to the griever's ability to fully discharge his or her employment obligations in the future. In short, it is only after such an examination has been made that one may properly draw any conclusions as to an emplo,yee's ability to meet the standard of regular attendance from the attendance experience of an employee during any given year. Applying such an analyses to the circumstances of Fiss Temple's grievance we do not believe that her attendance record during the course of her probationary year reasonably supports the conclusion that she will experience similar difficulties in the future. To the contrary we believe that all of the evidence suggests exactly the opposite. In the first place and most critically, in our view all of the evidence before this Board with respect to the prognosis for the griever's future attendance supports the conclusion that she will in fact be able to report for work on a consistent and regular basis. Indeed only if one ignored her own evidence with respect to the causes of her past absences, could one conclude that the problems which manifested themselves during her probationary year will likely recur in the future. That is, if one accepts, as we do, her evidence that the source of virtually all of her ailments during her probationary year were associated with the use of various contraceptive devices, one simply can not assume that Isiss Temple is a person who is fated to suffer or inflicts upon herself such medical disabilities. Moreover .._ ..-. I._ . Ii. to perceive Miss Temple as being some one akin to the "thin skull victinV or some other related notional character requires one to ignore her evidence that she has never experienced any difficulties in her previous employment or while at school in meeting the cultural norm of regular attendance. In addition to advert to the fact that Miss Temple is not able to receive certain medications as further support for the conclusion that she is a person who is , fated to suffer peculiar ailments is to deny the fact that no absence has ever been ascribed to such a condition. In addition to suggest that because Miss Temple was required to be absent on three separate occasions after being subjected to an attack by a patient that she is particularly fraqile and vulnerable to such abuse is also to ignore the fact that on three other occasions when she was attacked by a patient she was not required to take any time off work. Further, and although it is true that her allergic condition did in fact cause her to be absent on one occasion when she omitted to take her medicine, we believe that such an occurrence can not in the experience of her probationary year, be said to be a likely cause of future absenteeism on anything but an isolated and infrequent basis. However perhaps the most telling evidence against the employer's characterization of the grievor as a person who wills upon herself or who is fated to suffer abnormal ailments or extreme and exaggerated reactions to common conditions is her record of attendance during the last two months of her employment. During that period the employer's records reveal that Miss Temple was absent on five separate occasions. For one of these the employer granted her compassionate leave. A second absence was associated 12. with the third Workmen's Compensation claim. A third absence was spent in the hospital and recovery from the removal of the I.U.D. The remaining two absences, involvinq the loss of one day of work on each occasion were, according to her evidence and the hospital records were attributable to the difficulties she was experiencing with the I.U.D. device. Thus, over the last two months of her employment Miss Temple did not suffer from a single ailment the effect and source of which can not now be said to have been completely spent. In short there was, over the last two months of her employment not a single instance of absenteeism the cause of which could now be expected to precipitate future absences on the grievor's part. Put somewhat differently, Miss Temple's experience in the final two months of her employment does confirm her physician's statement of January 26, 1976 that Miss Temple is in fact presently in good health. In the result although the grievor's attendance record during the course of her probationary year was a poor one, we are satisfied that the causes for those absences have been identified, rectified and wili not likely cause attendance problems in the future. We are firmly of the view and there is simply no evidence before us to the contrary, that the problems she experienced in this regard during the course of her probationary year were not ones she had previously experienced either in her previous employment or during the time when she was training for her chosen vocation. On the basis of that evidence and her own physician's statement that she is presently in good health we believe makes unreasonable any proqno:i:, or conclusion that she will be incapable or regular attendance in the: future. .Vesy~.,simpTy,, and against that evidence, the bald suggestion that bliss Temple may possibly experience other medical infirmities in 13. the future simply cannot be accepted as sufficient prooof of her medical unfitness or of her inability to meet a standard of reaular attendance. Re INTERNATXONAL NICKEL CO. OF CANADA LTD. AND UNITED STEELWORKERS (1974) ? L.A.C. (2d) 196 (RAYNER) That the employer's conclusion as to t!iss Temple's ability to report for work on a regular basis is unreasonable may also be confirmed by examining the methods it utilized in attemptinq to rectify her attendance problem. In examining the employer's efforts in this regard we are not suqgestinq that an employer must specifically warn every probationary employee that failure to meet certain "cultural" norms such as regular attendance, will result in his or her being terminated at the end of the probationary term. To the contrary,as the employer properly suggested, given the very nature and purpose of the probationary period, probationers should be well aware of the potential consequences when they are advised, that their attendance record is inadeaute and unacceptable. Thus and standing alone, the fact the employer on three separate occasions drew Miss Temple's attention to her attendance problems would we believe be sufficient to alert her of her employer's expectations that a substantial improvement in her attendance would be required. However,in the circumstances of this case the employer's response to the grievor's attendance problems were not limited to such direct admonitions. Rather,according to the qrievor, on the first of two occasions, when her attendance record was raised as part of her on-going evaluation, she specifically apprised her 14. supervisors of the nature of her problems, and of the fact that she was undergoing various tests and examinations to determine the cause of her difficulties. It was her evidence that when she apprised her supervisors of these facts the latter advised her that there was no problem in this regard. Similarly at the time of her sixth month evaluation, which for various reasons was not conducted until ._ . November,it was her evidence, which again stands uncontradicted,that she advised her supervisor that the problems she had experienced from February until September had now been diagnosed as being caused by the ingestion of oral contraceptives and that as a result of her going off that medication no further illness of the nature had in fact manifested itself since that date nor was any similar ailment expected to recur in the future, Miss Temple advised the Doard that in fact when she so informed her supervisor the latter again indicated that she accepted the orievor's explanation. Indeed according to Miss Temple when she offered to bring in medical certificates to substantiate her claims, her supervisor advised her that it would not be necessary in that she understood and believed the griever's explanation. Similarly when Miss Temple was confronted with her nine month evaluation shortly after her return from having the I.U.D. removed in which her attendance record was again reviewed she aqain attempted to explain that the nature of her more recent ailments were directly related to the insertion of the 1.U.D and that no)! having had that device removed no similar difficulties were expected to recur. Again on this occasion Miss Temple offered and in fact did secure a medical opinion to substantiate her description of 15. her difficulties with the I.U.D. However, on this occasion according to Miss Temple, when she presented her physician's statement to her supervisor, the latter merely commented that"time off was time off" regardless of the reason and that it was her judgement that Miss Temple would be a poor risk. Moreover when Miss Temple pressed her supervisor to call her doctor to substantiate her explanation the supervisor simply advised her that such an inquiry would be of no further assistance. Indeed when Miss Temple sought out the hospital's Director of Personnel for a review of her plight the latter advised her that the decision was out of his hands and referred her back to her nursing superiors. In the result, these supervisors still being unsatisfied with the certification presented by the grievor determined not to recommend her for appointment to the permanent staff. We have reviewed the grievor's evidence with regard to the employer's handling of the grievor's attendance problems in some detail because it is axiomatic to this Board that if the methods utilized by the employer to arrive at a particular conclusion, are themselves arbitrary and unreasonable, necessarily that will affect the quality and propriety of the decision that was effected pursuant to such methods. In the circumstances of this case, although we have already noted our determination that the employer's decision as to the grievor's present state of health and its prognosis for her being able to report for work on a regular basis in the future was on the merits unreasonable, in the final analysis it strikes this Board that it was methods utilized by the employer in arriving at their decision which were seriously wanting and which ultimately 1 r. . affected the reasonableness of its decision. That is when confronted with the grievor's explanation of her past difficulties and the assertion that these ailments would not manifest themselves in the future, surely it was encumbent on her immediate supervisor or on the Director of Personnel to make the necessary inquiries that their decision to accept or reject her explanation would be made on the basis of informed opinion rather than on some arbitrary .~ slogan that time off was time off. Surely if the supervisor or anyone who relied on the supervisor's recommendation had doubts as to the veracity of the explanation proferred by Miss Temple, it was encumbent on them, either to make such further inquiries as were required to substantiate or confirm her assertions or to specifically apprise Miss Temple of the deficiencies it perceived in her cer- tification so that she would have an opportunity to provide the necessary information to alleviate their doubts. me I?JTER?IATIOIZAL' . NICKEL CO. OF CANADA LTD. AND UNITED STEELMOR~RS, LOCAL 6500 . (1974) 6 L.A.C. (2d) 443 (JOHNSTONJ Re FIRESTONE TIRE & RUBBER CC. OF CANADA LTD. AND UNITED RUBBER WORKERS, LOCAL 113 (1973 3 L.A.C. f2d) 13 (%EATHERILLJ, Re lIP?ITED STEELWORKERS OF AMERICA AND IEITERNATIOIs'AL NICKEL CO. OF CANADA LTD. (1969) 20 L.A.C. 178 (H. D. BPOW?l) Indeed it strikes this Board that such a methodology could profitably have been employed as early as May when the grievor underwent her first evaluation. If, as its present posture would indicate, the employer was even then not satisfied with Miss Temple's explanation of her absences inquiries should have been made or instructions given to Miss Temple to provide whatever documentary information the employer required. Very simply and in the result by failing to institute any such procedures and by simply rejecting the prievor's explanations 17 withcut reason in our view necessarily impugns the reasonableness of the decision ultimately effected by the employer. In reachinq the conclusion that the methods utilized by the employer in reaching a decision as to the griever's prospects for future attendance were unreasonable, we do not wish to leave the impression that the errors were wholly one-sided. Although it is .~, true that until her evaluation in January 1976 Piss Temple could reasonably have assumed, from her supervisor's comments, that the employer had understood and had accepted her explanation for her absences, it is also clear that had Miss Temple provided the employer with clear and definitive medical certificates throuqhout the period she was experiencing her difficulties the employer's ultimate decision as to her suitability might well have been otherwise. Indeed even if she had presented such a document as late as her final evaluation events mipht well have transpired in a very different fashion. Put somewhat differently had Miss Temple assumed the initiative and provided the employer with a full and definitive certificate, there would have been no~further need for the employer to make any further inquiries as to the source of past difficulties and as to the present state of her health. Indeed given the difficulties that this Board and others in the private sector have experienced in the assessment of medical documents submitted to them, it would be wise for either the union, or the employer,~ or both of them jointly, to prepare a common form which would clearly spell out the physician's diaqnosis of the employee's infirmity, the nature of the treatment and medication prescribed and as weli the prognosis for future recovery. me STEEL co. OF CAh'ALX LTD. AND UNITED STEELWORKERS, LOCAL 1005 (1975) 8 L.A.C. (Zd) 20s (LWATTY). Had such a document been available and utilized by Miss Ii’. I’~ s i> 'iemole, clearly settino out all of the information described above we doubt that the assistance of this D,oard would have been reouired to resolve this matter. Finally in reaching the conclusion that the employer's decision with respect to the proonosis for Piss Temple's future attendance was unreasonable this Roard is not unmindful that our decision itself is in the nature of a prognosis which thouoh we believe to be the only reasonable and proper one on the evidence presently before us, may itself ultimately prove to be ontimistic and unfounded. In such circumstances we believe that the employer's interests in ensuring that its staff is able to meet a reasonable standard of attendance is meritorious of our consideration and V!ere it otherwise and should the grievor prove incapable of meeting such a standard of attendance the employer Gould be obliged to assume the real and significant costs that would obviously be associated with the employment of a person who could not adeouately discharge their employment obligations. Very simply in such circumstances not only would the employer he saddled with actual expenditures and losses. in the form of health benefits, temporary loss of services and perhaps additional overtime payments but as well it would be denied the expected fruits of their bargain viz, the employee's services. In such circum- stances, and recognizing the limitations of the adjudication process to precisely and accurately forecast the future health of employees who come before it we believe that in reinstating Miss Temple to her employment, we should do so only on certain terms. Specifically, and in following a procedure well known to the private sector, we would condition the arievor's reinstatement on her being able to satisfy a level of attendance that is not significantly below that of the hospital's average for a period of one year from the date she actually resumes her . _ emrlovment. Pc ATLAS STEELS CO. AND CANAD~TAN .~Tl:~I,WOi~K~RS ' ,!"!Ii);! , ~--. ,I?!.AS PF'1.V~ (1975) 8 L.A.C. j2d) 350 (WEA?flEPII,L): Re HASES-"Ail/ LTD. A':1 i?:I?'ED AUi'YlMODILE KOPKERS, LOCAL 374 (1973) 3 L.A.C. (2d) 371 (r:rAr!!rPILL.) Pe UNITED AUTOMOBILE WORKFRS, LOCAL 45t, AI:D W,SSi:)‘- FERGUSO!! 1I:DLFTPIE.C LTD. (1972) 24 L.A.C. 344 (SHIME; Re UliIT’fP A lI?‘OMO.?IL.? k?Ol’E:ERS , LOCAL 397, AF!D BARBER-ELLIS OF CAA'.qDA LTD. (19fiRl 19 L.A.C. 163 (SCHIFf). In so conditioninn the grievor's reinstatement we believe we have adequate1.v protected the interests of the employer in the event that the evidence and our judnement of her present health proves faulty. In the result we would order the orievor to be re- instated immediately, effective February IO, lg76 with full service credits and compensation to which she is entitled less an,v monies she would not otherwise have received but for her termination. Should the parties be unable to resolve the amount of compensation due and owing to the arievor, we shall remain seized of this issue for thirty davs followina the release of our award. Dated at Toronto this 7th day of May 1976. 0. M. Beatty Chairman E. J. Drsini Member H. E. Weisbach Member