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HomeMy WebLinkAbout1977-0097.Reed.77-10-25., . 97177 CROWN EMPLOYEES 4!6/964 F426 sl.pte 405 GRIEVANCE SETTLEMENT 77 BZoor SL~eet Vest BOARD 1’0R09011’~0, Ontario MSS lM2 IN THE MATTER OF AN ARBITRATION Under The CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD Between: Mr. William Reed f? The Liquor Control Board of Ontario Before: For the Grievor: K. P. Swan Vice-Chairman E. J.,Orsini Member W. Walsh Member Ms. Paula Knopf Jaffary & Turner 390 Bay Street, Suite 1700 For the Employer: Ms. Janice Baker Hicks, Morley, Hamilton Toronto, Ontario Hearing: September 29, 1977 Suite 405 77 Bloor St. West Toronto, Ontario . . 2. This grievance, dated June 15, 1977;arises from the discharge of Mr. William Reed from the employ of the Liquor Control Board of Ontario effective May 27, 1977. Because of the unusual nature of this case, the Board is unwilling to embark upon a complete rehearsal of the facts leading to that event. We shall, however, set out the bare bones of our find- ings of fact to lay,the foundation for our decision. We begin by saying, quite candidly; that where a direct conflict arises between the employer's witnesses and the grievor (and there are few such instances) we prefer the evidence of the employer's witnesses. This is not in any way a refl.ection on the grievor's honesty; we consider that he was telling us the truth as he perceived it. Nevertheless; the events which have.marked his relationship with the employer have been so intensely emotive and conflictual that we consider his perceptions to be shaped by this relationship to the point where they lack objectivity. The employer produced evidence, which we accept as accurate, of a past record of discipline and poor. attendance which is asserted as sufficient to justify, coupled with a culminating incident, the action of discharge. We received this evidence on the usual basis that its use would depend upon the demonstration by the employer of such a culminating incident; it is, in our view, on the evidence of that incident (and the surrounding circumstances) that this arbitration turns. 3. i- Mr. Reed first began work with the L.C.B.O. in 1965, and worked until he was terminated in 1970 in circumstances not before us in evidence, but which clearly gravely upset the grievor.and fostered a sense of injustice which continues to the present day. In June 1976, upon the initiative of the Ombudsman of Ontario, Mr. Reed was reinstated by the employer. The period of his reinstatement was not a happy one. He was disciplined on, a number of occasions, his work performance was called into question, and his attendance record was poor. Finally, in February 1977, at a meeting called by Mr. R. MacDougall, Staff Relations Officer, a full and frank discus- sion of his problem occurred. He was also offered "a period of unpaid leave of absence", an offer which Mr. MacDougall chara- cterized in his evidence as a chance for the grievor to pull himself together and come to terms with his employment relation- ship. After some hesitation, the grievor accepted this offer, and he thus took an unpaid leave from March 2, 1977'to May 2, 1977. The grievor obtained work elsewhere during the period, but on a date agreed upon in advance gave notice of his intention to resume employment with the L.C.B.O. on May 2, 1977. On that date, however, he did not report to work. Instead, he called to report that his wife (from whom he is separated but with whom he maintains a close relationship) was seriously ill and that he was required to take care of her. He continued his reports by telephone all week until Saturday, May 7, 1977, when he did not report. As a consequence, he was suspended pending final determination of appropriate discipline, 'and was then discharged. 4. We most admit to serious misgivings about the employer's stated grounds for establishing a culminating incident, since the reason given by the grievor for not returning from his leave of absence was hardly the sort of matter on which an employer would expect daily reports.. However, the grievor's own frank evidence is that he decided, on that Saturday, to say "the hell with it" and to stop phoning in. In ordinary circumstances, this would be sufficient cause for discipline, and we thus find~that,. subject to what we have to say below, the employer had just cause for discipline for the culminating incident and, given the grievor's record, just cause for imposing a severe penalty~perhaps even discharge. There are, however, some surrounding circumstances to be considered. No medical evidence was presented to the Board in this case, and we are therefore very reluctant to attempt to resolve such a case on what are essentially medical grounds. Nevertheless, the evidence presented to us about the work relationship'of the grievor by his supervisor and himself, and the demeanour of the grievor while giving testimony, raise a strong inference of a medic,al problem which directly affected the grievor's work perfor- mance, and which therefore casts into doubt all of the conclusions we would ordinarily draw from the facts presented. The grievor bears an enormous, almost crushing, sense of injustice because of the termination of his employment by the L.C.B.O. in 1970, and his subsequent struggle for reinstatement which culminated in his return in 1976. He blames this event for 5. a multitude of consequences, the relevance of which to the present proceeding is doubtful, and the accuracy of which we simply i- cannot assess. In the result, it appears that ‘this sense of grievance underlay virtually every conflict which occurred between the grievor and the employer, and was then in turn exacerbated by these conflicts. At the time of the culminating incident, the grievor testifies, and we believe, that he was virtually prostrated by his antipathy to the employer. In our view, the inference of what we might, as lay people, loosely call a "depressive illness", is almos irresistible. In such circumstances, we consider that conduct otherwise blameworthy must take on a different aspect. Thus we have deter- mined, with much anxious consideration, that the grievor ought to be reinstated in employment, but without compensation for lost salary. We reinstate the grievor very reluctantly, and thus we consider that we must impose conditions upon the reinstatement to ensure that the interests of both \ the grievor and the employer are protected. We have, as lay people, made findings of fact and drawn inferences which would ordinarily require medical evidence, although we have done so in circumstances in which, we believe, the plain and uncontroverted evidence entitles even lay people so to act. We consider, however, that professional medical intervention is essential to the success of any attempt to re-establish the employment relation- ship here. We note that the collective agreement provides for a leave of absence for special or compassionate reasons in Article 13.2. "subject to the relevant provisions of the Regulations under the Public Service Act." There are a number of provisions under the Regulations .which set out various kinds of leave; the one most appropriate here is 5.17 (2), which provides: Lean? of absence without pay and w.ithout accwmli~tior~ of credits may be granted to a civil servant for a 6. We do not propose to attempt to demonstrate that this provision clear.ly applies to the grievor; we only refer to it by way of analogy to the remedy which we consider that our wide jurisdiction under S.18 of the Crown Employees Collective Bargaining Act permits us to fashions, and which we have decided to apply. Our - award is that the grievor be reinstated in employment without compensation effective the date of this award, subject to the following considerations: 1. Immediately upon reinstatement, the grievor shall be placed on leave of absence without pay for six calendar months from the date of this award. 2. The grievor shall seek medical assistance to define .the nature of his employment problems and to work toward an.. improvement of that relationship. 3. At any time during the six month leave period, the employer shall re-employ the grievor with full salary and benefits, upon the certification of a duly qualified medical practitioner specializing in psychiatric medicine that the grievor is fit to return to work with the L.C.B.O. and that such a return to work is in the best interests of the grievor. 4. Failing such a certficate within the six month period, the employment relationship between the grievor and the L.C.B.O. shall terminate at the end of that period. It is our hope that this remedy will balance the right of the grievor to his job with the right of the employer to an efficient and productive work force (neither of which rights, of course, is absolute), and will ensure that qualified medical opinion is brought to bear on the important question which we are unable to answer - whether the grievor ought for the sake of his own well-being and with reasonable regard for the employer's interests, to return to work at the L.C.B.O. It will also 7. ensure that the employer will know, within a reasonable time, the status of the grievor's employment situation. The griever proposed that his problems could be resolved by a transfer to another store; we cannot assess the validity of this assertion, and prefer to leave that matter as well to the recommendations of the grievor's medical advisors. Needless to say, if the grievor is unwilling to accept these conditions, the employment relationship will terminate. Although this Board is regularly favoured with good advocacy, we cannot conclude without expressing our special indebtedness in this case to both counsel, whose patience, sensitivity and excellent submis- sions were of enormous assistance to us in our deliberations. Dated at Toronto on the 25th day of October, 1977. B K. P. Swan Vice - Chairman I concur E. J. Orsini Member I concur W. Walsh Member