HomeMy WebLinkAbout1979-0095.Wood.81-10-17F.
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CROWN EMPLOYEES COLLECT:VE SARGfiiN;NG ACT
Before
THE GRIEVANCE SETTLEMENT WARD
8etwen : Jean Wood
and
The Crown in Right of Cr,tario
Ministry of the Attouey Gweral
Defore: E. 9. Jolliffe, Q.C. V,ice-Chairman
E. R. O'Kelly Flember
R. Russell Member
For the Grievor:
On May 14/81 i. Stevens, Grievance Office;-, 0.F.S.K.V.
On June 16/81 I. Freedman and L. Sfe:'ens, O.P.S.E.6.
For the Empioyer:
On May 14/81 0. a. Zackson. Cepljty %blic Trilstae
On June 16/31 J. Zarzd-.y, C,72:7sel 2~4 2. 3. Ja~:!:ssc
DECISION
The result.in this case turns on the interpretation
and application of Article 5.5 in collective agreements between
the Ontario Public Service Employees Union and the Crown in Right
of Ontario, represented by Management Board of Cabinet, in
respect of the years 1978 and 1979. The same language appeared
in the more recent agreement. Article 5.6 is as follows:
5.6 Were, for reasons of health, an employee is assigned to
a position in a classification haviiqa lowar maximum
salary, he shall not receive any salary prcgression or salary
decrease for a pericd of six months after his assignment, and
if at the end of that pericd, ha is unable to accept employment
in his former classtiication, he shall Se assigned. to a
classification consistent with his condition.
Although not mentioned in the grievance filed by Hs.
Jean Wood, Article 5.7 also has some importance. I: is as
follows:
5.7 Except as provided above, an employee who is demoted shall
be paid at the rate closest to bait less than the rate he
was receiviq at the time'of demotion, effective from the date of
his demotion.
It is worthy of note that the same rights were provided
for in a regulation which has been in effect for some years under
the Public Service Act. Section 29(3) of Regulation 749 under
that Act is as follows:
29(3) Where, for reasons of health, a civil servant is assigned
to a position in a classification havLng a lower maximum
salary, he shall not receive any salary progression or salary
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decrease for a Fried of six months after his assignment and,
if at the end of that pericd he is unable to accept employment
in his former classification, be shall 'be assigned to a
classification consistent with his condition.
It will be seen that Section 29(3) of Regulation 749
is almost exactly the same as Article 5.6 in the collective
agreements. The only difference is that in the Regulation an
employee is described as "a civil servant."
In this case, the employee, at her request and for
reasons of health was assigned to a position in a classification
having a lower maximum salary, but suffered no reduction in
salary for a period of six months after the assignment. At the
end of that period she wished to resume employment in the former
classification; instead, the employer confirmed her classification
at the lower level, which involved a reduction in pay, the reason
being that in the opinion of the employer the reassignment to
the former level would not be consistent with her condition or
capacity. Thus the issue in this case is whether the employee
has a right to return to herformer level or may be denied that
reassignment for reasons determined by the employer.
'The case for the griever is that assignment to a lower
level for health reasons is temporary in effect and that the
employer is bound to reassign .the employee to her forner and
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higher level at the expiration of the six-month geriod specified
in Article 5.6.
The employer takes the position that there is no such
obligation and that if the employee is thought to be unable to
resume her former duties satisfactorily, there need be no
offer to reassign and therefore no acceptance of such an offer
becomes possible.
So stated, it is clear that the issue is important to
the employer, to the griever and to all other employees repre-
sented by the Union.
It is not necessary to spell out all the details which
appear from the voluminous documentation placed before the
Board in this case. Nevertheless, reference must be made to
the history of the griever and her problems, many of which
were undoubtedly related to her health.
By her account, the griever, now 49. started work
when she was about 18, after graduating from the Himico High
School with grade 12 standing, including commercial training.,
Later she attended Shaw Schools to learn shorthand. Xarried
at 23, she lived in Kitchener for 10 years. There she was
variously employed as a typist in the Income Tax office, in ~
the iJaterloo Assessment Office and also part-time at night in
a real estate office. In May, 1968, she became a clerk-typist
with the Ontario Housing Corporation. Then she upgraded her
shorthand at night school and passed tests which enabled
herb about 1971 to become a clerk-stenographer 3. After six
and one-half years at the O.H.C., she worked for the Ontario
Police Commission, having won a competition.
The griever left the Commission in an effort to
become a legal stenographer, and obtained a job with the
Ministry of Labour's Legal aranch, which is under the Ministry
of the Attorney Genmeral. During her two years there, she _
had difficulties getting along with her superiors whose manners
and life-style she did not admire. Without exploring those
problems, it is sufficient to say that she obtained a leave of
absence from November, 1977, to April, 1978. This; she testified,
was not sick leave, but the Ministry had asked her to see a
Doctor Brasch. Unaware at the time that he was a psychiatrist,
she understood that management wished to have another opinion
apart from that of her own physician, Doctor S.H. Solway.
In April, 1978, the griever was interviewed at the
office of the Public Trustee and almost immediately began work
there as a clerk-stenographer 3. For three or four‘mon:hs she
served as secretary for a lawyer, Ms. F.A. Levis, but found it
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difficult to take her dictation and prepare legal documents with
which she was not familiar. Throughout this period the griever
suffered from poor health. From April 10 to August 8 she xas
absent from work for only nine and one-half days due to illness,
an average of about two and one-quarter days per month.
For some years Dr. Solway had been Nsr Fiood's
physician and he concluded in August, 1978, that she should be
assigned to a position where there would be less stress. 3i.s
reasons were set out in a letter to ,Mr. L. Stiff, Director of
Personnel at the Office of the Public Trustee, dated August 8,
1978. The letter became an exhibit at hearings by this aoard,
and Dr. Solway himself testified in detail and at considerable
length. The substance of his/opinion at that time is clearly
stated in the letter of August 8, the text of which is as
follows:
,Ws. Jean Wood has attended with me for the past ten years.
She is definitely more serious and conscientious than the average
person.. . has had a good deal of family tragedy with death of a
daughter and sister over the past five years. Has been a hard
steady wxker all her life. Is now going through the menopausal
pericd with disturbed menstrual periods and an outright uterine'
hemhorrage last week tiich took meet of the week to ease off.
Sk seemed to be managing quite well at the present ,ark until
the hark load and more still,the constant pressure and discontent
seemed to become more prevalent causing ,Nrs. 'Wad to have uneasy
tense emotions which seemed to persist and even increase as the
days wore on. Finally leading to the heavy uterine bleeding. It
is obvious that she requires calmer surroundings and it may WU
be that she can manage more favourably Isith more male associates
on the job.
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She has improved enough to get back to work Wednesday,
Aqst 9 bt it appears that this improvement may not con-
tinue under the present tense emotional atmosphere. I x..ould
suggest office work with far less pessure and tension. If
you feel that telephone conversation with me will help in your
decision, please phona me at your conveniexe. I an in the
office from noon to 5 p.m., Ecnday to Thursday, inclusive.
After discussing the problem with Mr. Stiff, the
grievor eon August 17 gave him the following memorandum:
tither to my conversations with you of wt 16 and 17,
1978 this is to confirm that for health reasons I till accept
the proposed offer of working in a Stenographer 2 &wsition.
This is also to confirm from our conversations that I *ill
still be paid at the same salary level as I am presently
receiving as a Stenographer 3 for a period of six months,
following my placement in a Stenographer 2 positicn.
It appears that the new arrangement became effective
on August 23, asconfirmed in a letter to the griever from Fir.
V.A. Kalninsh, Regional Personnel Administrator in the Ministry
of the Attorney General, dated September S. That letter must
be quoted in full.
ti accordance with notification ad medical certificate
forwarded to us by IW. Stiff, please beadvised t,hat effective
Aw.st 23, 1978 you TM.ll be transferred,for medical reasons,
from the position of Stencgrapher, classified as Clerical Stencg-
rapher 3, tc the position of Stencgrapher, classified as Clerical
Stenographer 2, for a pericd of six 16) months.
Dxing this six-manth period, your Salk] ,411 not 'be reduced
but will remain, as governed by .Article 5.6 sod S.7 of the,Collective
Agreement ard the Regulations in the vaual of Administration,
.Volume II. 9-36-3, at $214.04 per week.
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Ibis means that you will have the salary protection as
Stated in the Venual, in that you will retain your present
salary rate for the said sixmonth paricd.
At the time of tie expiry of this sixYnonth period, on
the basis of your ability to assure your normal responsibilities
as a Stenographer, I muld anticipate you will be transferred
back into your pesent position as a Stenographer, and the above
condition till be removed. If you are not able tc assume your
normal duties, your salary protection will be removed and your
rate will be that of the position you occupy.
In case you have any guestions, please do not hesitate
to contact the writer or &WC-. Stiff.
Since the six-month period referred to in the Kalninsh
letter began on August 23, 1978, it ended on February 22, 1979.
During that time, as required by Article 5.6 in the applicable
collective agreement, the grievor.continued to receive the
same salary as she had previously, although she was performing
the duties of a clerical stenographer 2, not those of a clericai
stenographer 3. Instead of working for a lawyer in the Public
Trustee's Office, she was assigned to Nessrs. H. Kemp and
Malcolm Fealing, both of whom were estate officers and not
lawyers. Normally, clerical stenographers 3 are assigned to
work with lawyers and clerical stenographers 2 with estate
officers like Nessrs. Kemp and Fealing.
Supervising the typists and co-ordinating %ork in the
typing pool was Ms. J. Peck, a witness in this case. Apparently
ws . Peck reported to the Personnel Director, Xr. Stiff, who did
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not testify. His instructions to her were that she should
make regular reports on the griever's progress, a procedure
resented by Ms. Wood.
MS. Peck's first report, seen but not signed by the
griever, was dated October 24, and erroneously stated-it was
being made "at the halfway mark of the specified time period."
Actually, only two months had passed by. The second and third
paragraphs were as follows:
Mr. Fealing and Mr. .Kemp state that you work too slowly
and that rush typing is not done quickly enough. They also
state that your spelling is poor. Ihey ccnsider your co-'
operation ard attitude to be satisfactory.
Hcwever, there is another aspect to your employment here
and that is your co-operation with and attitude towards the
supervisor. I find this to be unsatisfactory. a simple question
from me or comment concerning your work is met with antagonism.
You object to extra work, preferring only the dictation of Xr.
Fealing and Mr. Kemp, ard you have voiced this opinion. In a set-
up such as we have in our Steno Department this attitude cannot
be tolerated as each cne shares the overload and no one objects
to doing extra typulg.
On November 30 and December 29, 1978, Cs. Peck again
reported, quoting Messrs. Pealing and Kemp, who had complained
about the griever's speed and spelling but spoke well of her
attitude. A more lengthy report was made by &a. Peck on
January 31, 1979. In it, Mr. Kemp signed the following
comments:
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1Krs. Wcod's coqzeration ard attitude are good. She
accepts assigned work agreeably and without question. xrs.
iJocd's work productivity is generally acceptable iiith the
exception of assignments that are required right away. Cn
the few occasions I have given her wh jobs she has not
carried them all out to my total satisfaction. Mrs. 't+xd'S
quality of kork is the area of most concern. She makes errors
that appar to be the result of carelessness. This is reflected
in her typing and work in general. For example, a tape was
erased on one occasion axi enclosures unitized on more than
one occasion. LWs. Wood's spelling ard punctuation are not
gocd although 'some improvement has been noted during the last
two or three months. It may be that Lws. Wood's performance
would improve in the future.. However, there is no guarantee
this would be the case.
Mr. Fealing's appraisal, signed by him,were as
follows:
An attempt till be made to keep this appraisal report
as brief and to the point as possible.
(a) I have very little complaint to make abut 2s.
Wocd's co-operation. She dces what is required without any
ccmplaint or argument and is always willirng to work.
(b) Fer attitude is quite positive, but it has been
observed that an increase in wrkload or the need to carry
out a task very quickly tends to fluster her.
Cc) Work prcductivity is definitely below the level
that should be exloected of one carrying out the duties reguirad
at this level. Too many small mistakes are made. It is
necessary to read each letter or memorandum ye-q carefully
before the work can be signed. Mrs. 'Nxd's prcductivity can
only te assessed by canparing it ?Jith other employees r,to have
mrked for me. In making this ccmprison I find that her
productivity is considerably less than these other zr~ployees.
Cd) Ths quality of wrk is only fair. ME.. i+ocd
apparently does not take the time to read her typing after
it has been completed. Small mistakes such as typing the
wrong date or spelling a name in two different ways in a
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letter are missed.' Ibis necessitates a very careed check
of her typing and consequently creates delays in prcductivity.
Unfortunately, errors have been made~'nhich can only ‘be
attributed to lack of concentration. A case in point is the
issuance of letters in &ich chegues should be included.
In more than Me instance the recipient has had to contact
either myself or Mr. &mp to advise that the letter was
received hit the cheque was not enclosed. %a last such
instance was the issuance of a cheque for $l,OOO.OO. 'Be
chegue was obviously placed in the wrong envelops but un-
fortunately WCS. wood csnnot,remerrber the incident.
There is no question ti my mind that this lady kishes
to work and is concerned about the quality of the .ark she
pmduces. However, it is my opinion that in view of the
level of the work an Estates Officer and his Assistant are
required to produce, this employee arks too slowly and makes
tco many errors to be considered suitable for this -particular
position.
On February 9, 1979, the grievor addressed a lengthy
memorandum to Ms. Peck with copies to the Public Trustee,
to Mr. - D. Savage of the Personnel aranch and to Xr. Stiff,
who had become Executive Officer. This document speaks
for itself and will be quoted without comment:
I have acknowledged receipt of your memorandums by signing
for them, tiich were dated Cctobar 24, tibvember 30, Cecemier 29,
1978 .a& January 31, 1979. 'Ibs first three memoran&ms I made
no reply to because they did not make common sense.
E you recall I moved to the Steno 2 position in September
1978. You 'here taking vacation leave at that time and said
that your assistant would instruct and cutline to me +he job
for Fealing and "emp.
As for my attitude toward you, this paragraph will ,tit
retaliate some of the animosity and malice you have shcMtoward
me. For example, the library, you made a federal case of this
episode by telling me I had no right to use it to st,udy tit!!out
permission from you which was complete harassment on your part.
All civil servants are allowed to use the libraq on their ~W-I
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time. I strorqly feel that as a sqervisor you are indeed
absolutely virtueless in every capaciel. YOJ get your kicks
by pitting others dohn with your lies and twisting of ~wxds,
tit still manage to come out looking and ac+Ag very sweet and
innccent. R-cm the beginning of my move to tie Steno 2 pcsiticn,
it was my gut feeling that you were out to get me. I must admit,
you really know how to play the game when it comes to being a
ruthless human person. Ycu certainly must of had an excellent
teacher. Ulfortunately, you have no real power of your own '
srd never will have as you lack the qualifications. Ycu
manipulate people and I'm sure there are many as well as me
that can see how realiy vicious and deadly a person you are.
I an not usualiy vindictive, bit in this case, you have made
me extrsnely angry.
The first rercxt dated October 24, 1978 was mitten by
you. I do not understand, nor em I sure that anyone else xuld
?&at the halfway mark of specified time" means. You also
stated that I objected to doing any taps from some of the other
departments. mis is just another one of your lies. If Fealing
and Kemp have no work, I approach you or Christine immediately
for another tare. There is no way you would let me or any of
the girls in the department sit and do nothing.
Q1 Novemker 24th, 1978 your memorandum to me was in accor-
dance with Mr. Stiff's instructions and again, was very 'vague.
Cn bcemixr 29th, 1978 another memo in accordance with Nr.
Stiff's instructions. As I was absent for most of that ,month,
taking tm weeks vacation at Christmas, I fail to see how you
'could possibly write a Frogress &port. I received it on
January Jth, 1979. Pgain, I repeat, the *port was vague, ~3
wmon sense.
01 February 2nd, 1979 I received another R-ogress Iderort
in accordance with ,W. Stiff's instructions. Your comments were
quite complimentary. Ycu covered yourself very well and only
Fealinq and Kemp made statements about my wxk.
Regarding Fealing and Kemp, I have never had any real
communication with either one. They have never once called
me into their offices to talk about their wxk. It has always
been to you that they make their ccmments, iiOt to me face to
face, but teehid my back.
'Ihis is in reference to ,W. Fealing's statement:
I receive very little work from him, one or t'a tapes a
week and some chegue requisitions, on'irhich he writes in the
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patient's file number and the amant of money we are sending.
I fill in the rest. I also ccmment about his having to read
letters and memorandums. Zny toss I have ever 'been a secretaq
for, always read ,Aat they have dictated before they sign it.
As far as productivity he makes no sense at all. 8 Wpe
everything he gives to me. I might add, that lately he changes
words so that I have to retype the whole letter. .b5 for spellLng
names, this is his job M-en he is dictating into a dictaphone.
I never receive reference letters from him if he is replying
to someone that has written to him first. The day before you
gave me this last &ogress Fqort, you called me into your
office in the morning to tell me Fealing had received a call
from a nursing hcme saying they received a letter but no chegue.
You mentioned Fealing WuLd probably 'he asking me about tCs
incident. He never did ask me, however, I asked him what it
was all about and he replied, "rever mind". 'his also does
not make sense and he is jumping to conclusions of his own
when he says I obviously put it in the wrong envelo&e. I pJt
through and mail out a great deal of chegues. icannotrmember
one specific cheque. He never informs me ,&en there is a lack
of funds in t,he patient's account. I make photocopies of each
invoice and type the envelopes which I keep in a folder until
the chegue comes back from accounting ahd if he does not tell
me, they sit in the folder until i ask him. As for the level
of kOrk, Kemp does the largest part.
In another instance, he gave me back two letters in November
to retyp that had been sitting on-his desk since September.
When I want to speak to him ahout a matter, I can never fird
him in his office. I have also walked in and found 'him sound
asleep in his chair. As for his dictation cn the tape, he is
very hard to understand anddoes rastspeak clearly. ?!e starts
dictating letters to a person giving the name amd no address.
I mentioned this to tin aproximately two weeks ago. ani he said
not to clear the tape. I gbesume from this, he thought I tres
lying, but I had someone listen to be sure thatthis was true.
He also does not put the patient's name and file number il
letters. Cn cheque reguisitions, he sometimes does not pt in
the amounts of money which under the new system is strictly
the Estates Officer's job. Another instance was a requisition
for Qzen Street mental Health Gntre, and he wrote in 115
Queen Street, tiich is the office address. If anycne is in a
state oi confusion, it is for the most part,him. !+$ personal
opinion is that he thinks of himself as another God, and is
very lazy.
ThLs is in reference to ,W. Kemp's statement:
He'is just a jellyfish and covering up for Cealing.
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Howaver, I receive most of the work from hti ard he is an
excellent dictator and very particular abxt all of 1his xork.
I did erase one tape only. I aoolcqized to $W. Kemp about this.
He did not make a big issue of it at the time, but I notice he
has putitin his report atoutmy kOrk.
I also know that LW. Stiff has already reccmmendd I be
transferred for health reasons. In the office, the ataospher?
k v&y bad for anyone's morale ard health. It is also my
firm belief that in this latest report from you containtig the
Estates Wicer's statements was m. Stiff's ins-&ions to
Eand to them.
I have met many nice pecple~ in t>e public Qustee's office
and sincerely hope that in time sane of the inequities at
Management level, will &a cleaned up & the public Trustee
h.iTSdf.
'N'hether the above memorandum was read by all of the
recipients is not known. However, on February 28, 1979, Yr.
Kalninsh, the Regional Personnel Administrator addressed a
letter to the grievor, marked "private and coniide~ntial,
delivered by hand" in which he stated the employer's position.
It was as follows;
This is further to my letter to you dated Sept&r 3,
1973 concern* your transfer, for medical reasons, ard the
salary protection described therein.,.
I now have to advise you that you axe cotiirmfd in your
present position classified as Clerical Stenographer 2,
effective Z'ebr~ary 23, 1979, and that your salary will be
adjusted, as of that date, to the maximum of the CLerical
Stenographer 2 range: S192.52 $er week. &gression beyoxl
that will be on the Sasis of future general adjustments to
this salary range.
In case you have any questions, please do pat hesitate
to ccntact us.
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At that time Mr. M. Bedley was vice-president of
Locah 526, O.P.S.E.U. On Harch 1 he sent the following
memorandum to Mr. Stifi, with copies to Messrs. Kalninsh,
Savage and O.P.S.E.U. representative K. Donahue:
Please note the particular clause of section 5.6 ,&ich
reads in part: "ad if at the end of that period, he is
unable to accept employment in his former classification".
Tbs key point relates to whether an employee, for reasons
of health, is unable to function at the former classifi-
cation level. Since Mrs. Wood feels she is able to perform
the duties of a Clerical Stencgrapher 3 position and inas-
much as Mr. KaLninsh hae not provided medical evidence to
the cmtrary, it appears there has been a violation of
section 5.6.
TX-U, would you please 'arrange immediately to ‘rave Vrs.
A. Wcod transferred back into her former position and her
former salary reinstated, without adjustment.
On March 16, Mr. Stiff replied to Hr. Bedley
as follows:
lb& is in reply to your memo of Harch 1,1979, con-
cerning the &ve named employee. _
A review indicates that there i-as keen no violation
of Article 5.6 of the Collective Qreanent. The employee
is experiencing difficulties similar to those occcring
ken she was waking at a higher level position. At that
time a medical examination attributed the difficulties to
health reasons. U&r t,ha circumstances, ,it 'wculd not be
in the best interests of the Ministry or the employee to
assign her to more strenuous duties.
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The next document is one on which the union relies,
it being a letter dated 8arch 27 from Dr. Solway, addressed
"to whom it may concern." Dr. Solway said:
This is a progress report about Nrs. Jean Waxl. Since
her Wellesley Eospital investigation and +zeatment as an in-
patient, durirg November 1973, there has heen regular after
care at this office. Sre 'MS made excellent recovery and is
quite well physically. She is anxious to work and has kept:
up gocd progress at her work and has for some time looked
forward to full duties at her regular work level as a sten-
ographer class 3.
Regrettably, there appears to be some persistent
~personality conflict with her immediate supervisor and she
seems to be reasonably reconciled to making the most of this
situation... merely atterdirq to the work at hard the best
she knows and can and letting thirqs go at that. Wer the
circumstances that is the calmest, wisest choice and is really
allshecando onher side. Should this personality conflict
persist, it may be well for all members ccncerned for %CS. Wood
to be placed in some other yet comparable position or departjiient.
The only other document of importance on the record
is a memorandum to Ms. Wood from Es. Peck dated April i, 1979,
in which she gave a six-month appraisal report. There was
really nothing new in.it, but according to Ms. Peck the
-griever refused to accept it or even read it in her presence.
Notwithstanding the opinion expressed in Dr. Solway's
letter of March 27, the grievor's attendance record during her
six months does not suggest any great improvement in health.
Her absences from work due to illness were three and one-half
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days in October, four days in November, six days in December,
two days in January and five days in February;3 total of
17 and one half days in six months, o: about 14 percent of a
total of 123 working days. In other words, although she missed
no days in September, thereafter she was absent due to illness
about one day in five or an average of a day each <week.
At the first hearing in this matter on May 14, the
testimony of Dr. Solway and the grievor was heard. It became
apparent that representatives of the parties would have to
support with reasons their respective interpretations of
Article 5.6 It was therefore agreed to adjourn until June 16,
when counsel would be asked to attend.
In the result much time at the second hearing on
June 16 was spent in argument. The Board also heard the
testimony of MS. Peck and Nr. Fealing elaborating on inior-
mation disclosed by documents already quoted. In particular,
Ms. Peck explained her conclusion during the six-month period
that Ms. Wood's health would not permit her to perform duties;
at a higher level where "pressures" would be even greater than
they were in working for Messrs. Kemp and Pealing. She said
she never replied to the griever's criticisms of February 3,
believing it would be useless to do so.
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In argument, 41s. Stevens said the griever's temporary
demotion had been granted at her request pursuant to the require-
ments of Article 5.6. That Article contemplated a demotion for
six months and six months only. There was nothing to suggest
it could be,permanent. The best evidence of the griever's
ability to return to her previous level was the opinion of her
physician. Instead, the' employer had chosen to substitute its
own judgment.
Mr. Zarudny, counsel for the employer, said there
have been no previous cases decided in relation to Article S.S.
As to the meaning of the word "assigned," he referred to
Section 17(l)(a) of the Crown Employees Collective bargaining
Acts. It was clear, he said, that there had been reserved to
the employer the right to assign employees to the appropriate
positions. Article 5.6 of the agreement did not purport to re-
strict that power of assignment. However, he conceded that an
assignment under Section 17(l)(a) is subject to the right to
grieve and the Board could overturn the employer's decision.
He said also that matters of performance were for management
to decide; a physician's only function was to decide a health
problem. There was no right on the part of the employee to
demand an assignment to light duties. What had happened here
was that management had acted pursuant to Article 5.6 and granted
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an assignment to the lower level at the griever's request and
on the strength of a medical opinion.
Mr. Zarudny cited the view expressed by this aoard
in NcGuire 207/78, where Professor Swan said at page 12 "the
impact of the 'assignment' function is residual in nature:
whatever aspects of the broad compass of 'assignment' are not
subject to bargaining under Section 6, remain part of the
exclusive function of the employer. But that function is
expressly stated to be a right 'to manage', and is thus related
to aspects of direction and control. That this analysis leads
to a role for Section 17(l) that is similar to the position
of management rights clauses in private sector collective
agreements is not surprising: the section resembles such
provisions very closely."
Mr. Zarudny also quoted from page 9 of the same
decision as follows: "we accept that assignment refers to a
broad range of personnel functions involving the moving of
an employee from one job, position, classification, function,
workplace or location to another." Counsel said these
passages supported his theory that Section 17(l)(a) of the
Crown Employees Collective aargaining Act includes the kind
of assignment contemplated by Article 5.6.
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COUnsel further submitted that if at the end of the
period specified in 5.6 the employer concludes that the employee
is incapable of performing former duties, then the employer has
a duty to assign (by confirmation or otherwise) that employee
to a classification consistent with the employee's condition.
Unless and until an offer is made by the employer, there would
be nothing for the employee to accept. Thus a final decision
is reserved to the employer and the employee cannot express an
acceptance unless an offer has been made.
r”lr . Zarudny said he would concede that if there uere
no reasonable basis for the employer's decision --- "so be it"
--- and presumably the Board could intervene. In a matter of
this kind the Public Service Act and the Crown Employees
Collective Bargaining Act were to be read together; he re-
ferred in particular to Section 4(c) and (d) from the former
statute. Answering a question, Mr. Zarudny said the powers
of the Civil Service Commission under the Public Service Act
regulations have been delegated to the Ministry and are be'ing
exercised. On this point Mr. Freedman, counsel for the griever,
interjected that "we have accepted administrative delegation
but not the idea that there is legal delegation. We do have
to deal with the Ministries. Ke may raise it some other time."
- 20 -
In his own argument, Mr. Freedman sai? what was
missing from Nr. Zarudny's approach was due recognition of
the rights given to employees by the collective agreement,
which had been negotiated under the Crown Exlployees Collec-
tive Bargaining Act and had the effect of mitigating
certain provisions in the Public Service Act and the regu-
lations thereunder. For example, the agreement had stopped
the employer from making arbitrary assignments. Either
promotion or demotion required that there was a vacancy to be
filled. In his opinion. Article 4 of the collective agree-
ment could be applied to a demotion as well as a promotion.
Article 5.6 was the only place in the agreement which referred
to. "assignment." The only condition precedent before 5.6 came
into play was a health problem. It was not for the employer
to make a medical decision. That was something to be decided
by a physician. He pointed out that Section 17 of the Crown
Employees Collective Bargaining Act does not mention either
demotions or promotions. The authority to promote was pro-
vided for in the collective agreement. He said Mr. Zarudny's
argument implied that health problems disappear after six months,
and the question then to be decided was whether an employee's
performance was satisfactory from the employer's point of
view. Actually, health --- and not performance --- was the key
to the whole matter from first to last. There was no right to
demote for reasons'of health only and even a demotion under 5.6
- 21 -
for health reasons had to be initiated by the employee. This
had nothing to do with questions of incompetence or unsatis-
factory performance. When the parties agreed to 5.6 it 'was
only health that they had in mind.
In reply, Mr. Zarudny emphasized that Section 17
of the Crown Employees Collective Bargaining Act must be read
together with Section 6 and the collective agreement. The
issue here,he said, requires the determination that an assign-
ment includes both a promotion and a demotion, something the
parties cannot bargain away because it has been specified in
the statute as a management perogative. As for the word
"condition" in 5.6, it was not intended to encompass poor
performance unless such performance was connected with a health
problem. As for the alleged right to return to a former
position, this was not something the employee could decide nor
could a physician decide it. It was a management responsibility
to determine whether the employee's condition permitted a re-
assignment to the former level. Finally, he urged, there was
ample evidence in the testimony given by Mrs. Wood herself that
she has been unable to resume her former duties in February, 19i3,
or later.
In our opinion, the problem here is less comglicated
than it would seem to be from the_disputation surrounding the
- 22 -
case. True, there is relevance in statutory provisions such
as those in Section 4 of the Public Service Act and Sections
6 and 17 in the Crown Employees Collective Sargaining Act.
Nevertheless, as previously noted, the language of .Article 5.5
in the collective agreement is in substance the same as the
language which formerly appeared and still appears in Section
29(3) of Regulation 743 under the Public Service Act. it
follows that no question arises of conflict between management's
statutory perogatives and the Article S.S of the collective
agreement. The parties have agreed to something that already
had the force of law.
Thus the problem here is purely one of reading
correctly and interpreting and applying correctly the words of
Article 5.6.
To dispel confusion, it is first necessary to
understand.what 5.6 does not say. It does not create an obli- -
gation on the part of the employer to assign an employee for
health reasons to a lower classification for six months.
More particularly, it does not say that the .employer shall
make such an assignment when an employee applies for it,
supported by a medical opinion. Strictly speaking, such an
assignment is discretionary. No doubt, ,when agreeing to S.6,
.
.\ i
-23 -
the parties had in mind that the employer would act reas0nabj.y
and that an effort would be made to facilitate the recovery
of the employee from a troublesome condition, thereby avoiding
an extended sick leave or resignation. However, what the
parties probably had in mind is not expressly stated in the
language of 5.6 and cannot be inf erred from its plain -words.
The next point is that 5.6 does not create an obli-
gation on the part of the employer to return the employee to
the previous higher level at the end of the six-month period.
It may well have been contemplated by the parties that this
would happen in the normal course. Sowever, 5.6 does not say
that it must happen.
Thirdly, the language of 5.6 does not state whether
the employee, the employee's physician or the employer is to
determine whether the employee is able or unable to accept
employment in the former classification. Obviously, if they
disagree, a decision must be made by one of them, but 5.6 is
silent on the point.
It is noteworthy that among those terms and conditions
of employment stated by Section 6 of the Crown Employees
Collective Bargaining Act to be bargainable, we find the
following: "promotions, demotions, transfers, lay-offs or
.’ i
- 24 -
reappointments of employees....." In other words, the
"demotion" of an employee for health reasons is a matter
which could have been negotiated between the union and the
employer, and the points on which 5.6 is silent'could have been
specifically provided for by agreement of the parties. Whether
or not there have been negotiations on the subject, the fact
is that 5.6 remains almost exactly as it was in the Regulations
under the Public Service Act.
Having noted what 5.6 does not say, it would now
be useful to reread all the words therein and understand
clearly what is actually said:
5.6 Where, for reasons of health, an employee is assigned
to a position in a c.lassification 'having a lower maximum
salary, he shall not receive any salary progression or salary
decrease for a parial of six months after his assigrment, and
if at ti-e end of that period, be is unable to accept employment in
his former classification,he shall be assigned to a classification
consistent with his condition.
Clearly the language above does create an obligation
on the part of the employer --- and only one obligation. That
obligation is to effect no "salary decrease" for six months in
respect of an employee who has been assigned by the employer to
a lower position for reasons of health. That obligation is
pe'rfectly plain and it happens to be the only obligation on the
part of the employer which is spelt out in 5.6.
- 25 -
The agreement goes on in 5.7 to provide that except
in a case covered by 5.6, an employee who is demoted shall j
be paid at the rate closest to but less than the rate re-
ceived at the time of demotion, effective from the .date of
demotion. No doubt it was this provision in 5.7 which .Xr.
Kalninsh had in mind when he wrote the griever on February
28, 1979, that her new salary would be 5192.62 per week,
being the highest rate in the range of a clerical stenog-
rapher 2, but $21.42 per week lower than the rate she had
received as a clerical stenographer 3.
As we have said, Article 5.6 does not tell us who is
to decide the matterif there is a dispute as to whether the
employee is able or unable to resume work at the higher level.
The answer to this question is dictated by necessity, not by
anything in the agreement.
Under Section 17(l) of the Ciown Employees Collective'
Bargaining Act, it is "the exclusive function of the employer
to manage," including the right to determine,among other
things, "assignment."
Thus, at the end of the six-month period under Article
5.6, the employer has a duty to "assign" the employee to rork
at either the former level or at the lower level or perhaps in
- 26 -
some 'other position. The responsibility is inescapably that
of the employer, and a 'choice must be made. Of course the
employer must live with the consequences of that choice.
If it is unacceptable, then the employee's only recourse is
to grieve, and, if necessary, go to arbitration. This is
precisely and quite naturally what has happened here.
In his concession, counsel for the employer seemed
to indicate that if the Board were to find no reasonable grcucds
for the employer's decision, then it might not be upheld by the
Board. Presumably for this reason the employer at the hearing
of this case adduced considerable evidence as to ttie emotional
and physical health of the employee and the effect thereof on
her performance and on her attendance record. These were the
grounds on which the employer acted.
This brings us, we think, to the question which must
be faced. In making the assignment made in February, 1979,
was the.employer acting on reasonable grounds?
There is no need to discuss in detail the evidence ,of
Dr. Solway. Clearly, he had much sympathy and understanding
for the griever in that she had suffer _ -d a.series of personal
misfortunes as well as the serious physical and emotional
problems he described. He conceded, however, that apart from
- 27 -
what she told him,he had little knowledge of the actual
conditions under which she was required to work. We are
not persuaded that the opinion he gave in March, 1979, was
consistent with the griever's attendance record or with her
state of mind as expressed by her in testimony before us.
The attendance record is significant. As previously
mentioned, during-the months from Cctober, 1978, to February,
1979, she was absent (due to illness) for what amounted to an
average of one day per week. Such a record suggests rather
strongly that there was no real improvement in health during
that period. Some confirmation of this view (for what it is
worth) appears in subsequent records of attendance. During
the two-year period between May, 1979, and April, 1981, the
grievor was absent due to illness for a total of 78 and one-
quarter days, or about 15 percent of all working days. This
is not really different from the previous record and certainly
does not betoken a satisfactory state of health.
Apart from the attendance record, the testimony of
the grievor herself made clear that shelmet difficulties while
employed at the Ministry of Labour, again while with a lawyer
at the office of the Public Trustee, and also (after taking
the positionat a lower level) further difficulties in working
with her supervisor and with the two estates officers for whom
- 28 -
she served as secretary. We appreciate that such experiences
were mostly attributable to the emotional and physical problems
described by her physician: For them, the grievor is entitled
to sympathy, but it cannot be said that the employer acted '
unreasonably in concluding that she was better able to work
as a clerical stenographer 2 than to attempt the more demanding
duties of the higher level to wh~ich she had formerly been
assigned.
For the reasons stated above, it is not possible to
disagree with the employer"s decision of February, 1979. The
employer had fully discharged its obligation under Article 5.6
to effect no salary decrease for a period of six months. At
the end of that period, the employer's obligation and duty was
to assign the grievor to a suitable position. In all the
circumstances, it cannot be said tkt the employer failed in
its duty. The grievance must therefore be dismissed.
Dated at Rockwood, Ontario this 17th day of October, 1981.
I Dissent, (See attached)
R. Russell Member
E. R. O'Kelly Member
EBJ:jce
DISSENT
I have read (several times) the draft sent to me by Vice-
Chairman Jolliffe, Q.C. and it is not easy to disagree with his
reasoning.
However, bearing in mind that in my view this case turns
on the interpretation given to Article 5.6 of the collective agreement
and the fact that this section must be interpreted by this Board, I
have analysed it in a manner that I believe the parties had in mind
when they agreed on it.
Regrettably, the language used in 5.6 of the collective
agreement is not as clear as it could (should) be. Also, I understand
that this Article has not previously been interpreted by any Board
of Arbitration.
My opinion is based exclusively on the wording the parties
agreed to in Article 5.6 of the collective agreement and what in my
opinion the words therein in their normal usage mean.
I agree with the decision where it says on page 22;
"5.6 does not create an obligation on the part of
the employer to assign an employee for health
reasons to a lower classification for 6 months".
I also agree with that part of the report that says:
"More particularly, it does not say that the employer
shall make such an assignmentwhen an employee applies
for it".
However, when either as a result of an employee requesting
or the management proposing a transfer to a lower rated job for
reasons of health, ".. he shall not receive any salary progression
or salary decrease for a period of six (6) months after his assignment".
There is no dispute regarding Article 5.6 thus far.
The above terms were duly carried out by the employer
in the instant case at the request of the employee. Hence, it is my
view that what the Board must interpret is the balance of Article
5.6 of the collective agreement.
It reads as follows: "..and if at the end of that period,
he is unable to accept employment in his former classification,
he shall be assigned to a classification consistent with his condition".
In the instant case, the grievor, ("he") had requested
the employer to implement Article 5.6 of the collective agreement and
the employer agreed to do so. Up to that time the grievor had been
working as a Clerical Stenographer 3. Here it is important to note
that it was the grievor who requested the demotion as provided for by
Article 5.6 of the collective agreement. It should also be noted
that Doctor Solway, the grievor's physician had recommended that she
be downgraded in her job to reduce the tension because personal family
- 2 -
problems had created problems for the grievor and he (the physician)
felt it important that she have a less stressful job at that time.
It should be noted that the initiatives taken up to this
time were all taken by the grievor either directly or through her
doctor.
At the conclusion of the six (6) months as specified under
Article 5.6 of the collective agreement the question arises how to
interpret, "and if at the end of that period, he is unable to accept
employment in his former classification...". "He" the grievor in this
instance, says she is able to accept employment in her former class-
ification, so also does her doctor who says the need for a job with
less stress has passed and she can return to her former job.
It was as a result of the initiative expressed by the
grievor and her doctor that Article 5.6 of the collective agreement
was implemented. Moreover, the collective agreement reads, "..he is
unable to accept employment in his former classification"; surely "he"
the grievor is not saying she is unable to accept employment in her '
former classification.
Here is a case where the grievor was working as a clerical
stenographer 3 and might very well still be working as a clerical
stenographer 3 had she not taken the initiative to exercise her rights
under 5.6 of the collective agreement.
My interpretation of Article 5.6 does not give management
the right, under the circumstances.that exist in this case and by
virtue of the wording of Article 5.6 of the collective agreement,
to say that "he" the griever, is unable to accept employment in
her former classification. This position is adopted by the employer
contrary to the position taken both by the grievor and her doctor.
Surely, the fact that the grievor had been doing the work of a
clerical stenographer 3 at the time she reauested the demotion under
Article 5.6 she should be entitled, as a minimum, to an opportunity
to show that she can do it.
It is my view that 5.6 of the collective agreement, like
other sections of the agreement, must be enforced in a fair and
reasonable manner: In this case the employer, although not the init-
iator of the demotion, has now chosen to act in an arbitrary manner
and in my opinion contrary to my understanding of Article 5.6 of the
collective agreement.
For these reasons I would allow the grievance and would
direct the employer to reinstate the arievor to Clerical Stenographer
3 as of the date the grievance was initiated, March 12, 1979 with any
make up pay due the grievor.
Ross Russeli - Member