HomeMy WebLinkAbout1979-0107.LeGallais.80-02-29?:, ‘, _ ‘, .,, .:L,‘. “(_ :: , ,’ .‘,. ‘-
.IN THE MATTCR OF dti’ilRBI:tRhON .; ;*-’ .“‘. ;
' Under The
:,
CROWN EMPLOY~S'COLLECTIVE. BARGAINING ACT
,, ., _. ~‘. ” :‘- Before
'i THi.GRIEVANCE ,SETTLEMENT.BOARD
* .I. i '.,.
Between: .Mr.~James Edwin,LeGallais ,j Grievor i
The Crown in Right of Ontario..'.*
Ministry of Government Services Employer .~
. Before:. 1 ,Mr.P.. ,J.. Brunner : '. Vice-Chairman
Mr. K. W. Preston Member
. . -, ii Mr.:‘H.<&:.Weisbach v.cg@er.
\ : . . ., : ~.’ , 1, .,~ . -_‘.
For the Grievck
.,
,-a
5: ~,..
Mr. R. Nabi, Grievance Officer'
- Ontario,Public Services Employees Union
;; _ ,. ‘_,~
For the Employer: ' '
Mr. R. Shepherd
.~' ~..-
Assistant Director, Personnel,Branch
Ministry of Government Services.
0 Hearing: : ~. , ,.?
January 15, 1980
Suite 2100, 180 Dundas St.-West.
Toronto, Ontario
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This is a grievance brought by James Edwin LeGallais, a
former employee of The~Crown in Right of Ontario (Ministry of Govern-
ment Services) (hereinafter referred to as the Employer or the Ministry)
dated April 21, 1979 alleging that he was dismissed on March 26, 1979
without just cause. He seeks reinstatement to hfs classificationof
Plumber with the Ministry's Property Management Branch in Lindsay,
Ontario and compensation for all wages and other benefits lost as a
result of the dismissal.
The matter comes before us as a result of the grievor's
request for a hearing by the Crown Employees Grievance Settlement Board
pursuant to the Collective Agreement between Ontario PublicService
Employees Union and The Crown in Right of Ontario as represented by
Management Board of Cabinet and The crm ktnpbyees collective Barga.fn.fng
Act, 1972 es amended.
At the conclusion of the hearing on January 15, 1980 this
Board allowed the grievance and ordered that James Edwin LeGallais be
reinstated effective January 15, 1980 to his former position with the
Employer. In addition it was ordered that the Employer pay to the
grievor 50% of his wages for the period March 26, 1979 to January 15, 1980
subject to deduction for any avoided orreasonably avoidable losses. We
retained jurisdiction on the issue of compensation in the event the parties
experience any difficulty in the implementation of our Award in this
regard.
At the conclusion of the heari,
we would give our reasons for decision i,
we now do.
ng we indicated to the parties that
n writing at a later date which
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, '. II -James Edwi.n,LeGallais is,:Li' yearsof,age,and::has since .-.'I
September 1970 been employed with the Ministry's Pro,penty.yanagement L
Branch, ,in. Ljndsay, ,Ontario as a,P.l,umber. ..'.-:,
~~ : '.&.. ,~ 2:. -2s 7). _ ~.;'-
,.On November 23,',1978 he was.drivinga Ministry vehicle in ,:' ,. ,?,: i
the.course-of-his empl~oymentnear the'Townof Lindsay when he was struck .' ~_' ., f~ :~, ,;; + c .., ,I._ _,
from behind by a truckl:XeGallais sustained a paSnfu1 and what proved to
'.. :, :~'; be, protracted; whip-T$sh,or"flexidn extension. injuries as a result of
3~ whicti'he was unable'to lrork'for a considerable time following November
-23;'1978.: While~.there is iome:evidence that he might,hav'e been:fit for
certain-light duties after'Februaryll2,'1979 it ls'not~seriouslydisputed q
that he was not, as!of;March 26, T,97B;.able to resume his no_rInal.duties
;; :: as.a:.Plumber. ;;,- 1' .- i' ::' -*:'. ,-.
..~ Itm,is‘,common ground;that'he.was unable'to attend to his duties
1 after November'23< 1978 by'reasonbf the 'injurie~s he sustainedand was
accordingly~cjranted~a~leave~of absence~for:'an .indefini'te period'of time
p&ding his &up&tion... ,i I.‘.; .‘J ,’ , 1,
I.
On'tiarch'26; 7g79'the&Ieputy Minister of G&&m&it Services
. .._ i. : .,. !., ; 7 '. :
sent 'the following letter to the gri~evori ,. : . :: P I have been advised by the Personnel Branch that you
~' i.G.~..L., , have.failed.tp re$ly;;tq +ir #letter of March 13, J97?,
regarding your employment intentioxk irith the Mini‘stry.
.7 f ‘, .,/’ ., .
‘Cbnseqizeritly, i must conclude.thaf you are no lo&r
interested in continuing your employment wit&the...
Ontario Government. ._
., In accordance with Section 20 of'?hk Public‘Service Act,
~- I have no alternative but to declare that you have '*, - abandoned your position. '&fecfive'today; MAY&h .26,,
1979, you will no longer be an employee of the,~~str,y of Gover-ni,:Servic&. L -I"" ,-:~ '.e '1'
'.Y' . :.:. 1' .
:
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SeCtfOIl 20 Of The Fublfc Service ActL R.S.O. 1970, as amended,
reads as follows:
A public servant who is absent from duty without
official leave for a period of two weeks or such
longer period as is prescribed in the tegulatlons
. may by an instrument in writing be declared by his
deputy minister to have abandoned his position,
and thereupon hls position becomes vacant and he
ceases to be a public servant."
The issue before us is whether the grfevor was dfsmfss.ed without
just cause on March 26, 1979 as alleged by the grfevor or whether the
Deputy Minister valid7y declared that he had~ abandoned his position and
thereupon ceased to be a Public Servant as provided by Section 20 of
The Public Service Act, as contended by the~Employer.
It was conceded by Mr. Shepherd on behalf of-the,Employer that
if the Deputy Minister erred in invoking Section 20 of The public Service
Act then the letter of March 26, 1979 was tantamount to a dismissal of -
the grievor from hls employment. No other grounds justifying the dfs-
missal were advanced. On the other hand, it was also agreed by Mr. Nabi
on behalf of the Union that if Section 20 was applicable then the grievor
was not dismissed but declared to have abandoned his position and thereupon
ceased to be a Publfc Servant. In that event it was agreed that this
Board had no jurisdiction to entertain the grievance for the reasons stated
ill Tam and the Ministry of Revenue (l/76) and Roy and the Ministry of Edu-
cation (6/78).
For the purpose of the matter before us, we are prepared to assume,
but without so deciding as the matter was not argued, that the grievor on
March 26. 7979 was a "Public Servant" within the meaning of Section l(g) of
The Public Service Act. We further find that the letter of March 26, 1979
was an "instrument In writing" within the meaning of Section 20 of
The Public Service Act.
C
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Whether SeCtiOn 20 of The. Public~Service Act was properly invoked <'. ‘_, i ~,: ./' . . . .
L .depends on whether,on M?rch 2,6,, l?~,~,~LeGal;!?is.was 'yabsen,t,from duty without _I t. /,, ,/ .,.# /h. ,.. _ ,,, .t
official leave for a period oT,two,,we,eksy. Ix; he .was *hi-s,, gri,e$ance must ,l:,..i ,,, /I - I .
,fail, b.flt~:!f he was,not itmust succeed. It.should be noted that:there is Ed.
no.'!longer period;:prescribed,by.the Regulpt..ons,,enacted,under>zhe ~tiiid
Service Act, SO that the governing,period i,n.questfon .i$rQhe.purpose
of Section 20 is two weeks. .We sho,uld: also recprd that it was agreed, ,c :
as is obvious; tha~~iP~bji2,SeyLa~t who cis onTan:huthorized' leave of . . .
absence, is-in fact. absent<.from,his dutfe.s_with official leave. -, .'-'- :: . i' t
.~_ The sub&ssion of'the Employ&is that the grievor's leave of
.' "'_.' .
.ab&nc&was terminated-on .M&ch 5, 1979..&d.:that'accordingly on March ,... ., .~ :,'-e: .. .' ',~l' ,'_
26,‘7979rh&was-absent.from duty+without officialleave for a period of
two weeks, thus permitting the invocation of Section 20 of The public
-~': l.c
: v Service.:Ack, by-&e Gel&y Minister. .., .1 7. r., _~.. i.i~
_I ~'. 'I -The".evi'd~~ce"inii~cates that LeGalliais.was taken to the hospital _. . -,.:‘y :L _
inanediately~from'the .acci'dent Sct;n~"on~November‘:~3, 7978. Subsequently 1.
he filed a claim under:,Fhe Workmen's Compensation Act. His salary was _ . . . \~
maintained at~all~material times-thereaiter pursuant ,to the provisions . :~Y: . ..I .~~.; j
of Articles'1.3 and.15'~~~"the',Collj,ctjile,,Agreement,~: Shortly after the 2 '>i'
accident, the Aisistarit“Re~~~nal~Ma'n'a~e"r (Lindsay)'of the Employer's
Pro~~~ty.Ma~~gement Branch; Ji~~j~umbCli:,.~d~u~!??cated with the grievor
and assured. ni,m that ni,sYsal,ary would-be continued..while he was recovering ._, . . I "
, from his injuri.es.., On.or about January 18 or 19,,1979 Trumbull had a
-.-telephone conversation with LeGallafs.at .which~ t,ime,he,was.informed that ~,. , ,., .- _
&oGall.ais had decided,,~,on his physic>an's,advice, to go to Florida for a \ I
two.month periqd in.order to. better: recup,er,$;e, from.his injuries. In this .,,* . , ~.
regard we accept the,evidence of.LeG+llais,~.that he told,Trumuull~ that he I'_, &' ,~
would be leaving on February 2, 1979 and return, on or about April 2, 1979.
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In fact this is what hapdened and the grievor left his house in Norwood,
Ontario for the purposes of travelling to Florida on February 2, 1979.
However before so doing, he attended at the offices of The Workmen's
Compensation Board in Toronto for the purposes of being examined by
a staff physician. On February 12. 1979 a' Workmen's Compensation
Board Claims Adjudicator sent the following letter to the grievor:
Further to our conversation at the BOd&'S
offices On FebLXdry 2, 1978, I am writing to
bonfirn the status of your claim at present.
As discussed with the Board's doctor who examined
you on February 2, 1979, you are felt to be fit to
return to modified duties at work with certain
restrictions, such as no outside work or anything
involving prolonged sltting or standlng or excessive
neck movements. The doctor stated you agreed with
his decision when asked for your opinion on the
matter.
As you are fit for light duties, should they become
dvaflable with your accident employer, and you have taken
yourself out of the jurisdiction of the Workzmn's
Compensation Board of ontarlo, by qvfnq to Florida, you
will only be eligible for temporary partial disability
benefits. Effective February 2, 1979, you will be
reduced to 50% compensation benefits.
A copy of this letter has.gDne to your employer to
informthem of the situation.,
Please find enclosed some Progress Reports to be
completed by yourself and your attending physician
as soon as you return from your trip.
I hope you enjoy your trip to Florida and I look
forward to hearing from you in the near future.
A copy.of the letter was in fact sent to the Employer.
It would appear from the letter of February 12, 1979 that the
grievor's Workmen's Compensation benefits were reduced to 50% effective
February 2, 1979. Trumbull, having been advised of this on February 5,
1979 telephoned the grievor's wife on February 7, 1979 to enquire as to
how the grievor wanted to have his accumulated sick leave credits allocated
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,F+ ,~~. c !.i ., ..r : I
to augment the now~reiduded,;~~~mell';:Combenga~ion'~~~nefits. He was ,..
informed that the grievor .had already left for Florida but that she
:- .a.', -
would c&&3. him-in~,or&r_~to djscover his"intentiqns in this regard.
. . _.
.By letter dated"<ebiuary 1'S, 1979,.t~~~"B~~evor com&nicated~directly -.
with,the~ Regio.nal.Manageq,,G,eorge Mountstevzen, on:.,this issue. - a.,
. :.;- ~. '. : r-, z. : , ~~I . . . . ..,.,_ ' On ~March ;7, 1979; Trumbull placed a;tel,ephone call to the -.:y: . !. . I : '__ ., :
gri;eyoi's"daught~r'and enquired wheth~er,his mail.,was being forwarded to : " ,> ~I : '.
him in Florida. Upon receiving an affirmative answer and on being given
his exact addressin~Florida.,,'he~rerWked that a 'Iletter" had been sent to "'~ .'
LeGallais. Roth~ng further was said about the mysterious letter in the . , I :: , .; :' :
..~. :The.grievor: testified, that-he intended to travel with his. wife :
but.she,was unabl-g to accompany:him as she was suffering from influenza . .
on February 2, 1979. ~Accordingly-it ias dec!ded.that she would joinhim
at a~lale,~ilate~whi!ch'she..di,d ~on'Pedruary~26, 1979.' LeGallais hhnself
arrived in Florida on February"6, 1979'and almost immediately made
.~. .
arrangements through the-Post Offi,ce.and the~A&rican Automobile Associa-
tion to have his mail fotiarded too-him to a iocatlon near St. Petersburg
and thi.s-was,in.fact done.. On March 20, 1979 he received the following
letter over-the 'signature ofthe Director of Personnel:
,: - - . :Fje-have been'&dvised~that~ you failed to report _~ 'for work' on Monday, March 5,>1979, as per Mr.
G;IF; MountSteveiI%.l&&ter~ of Mar& 1, 1979 t0
YOU I or to contact him to justify your absence
without &Grmission sinde that date. .
"I? is' a conilition bf empldyment to submit a medi-
" .?a1 certificate 'after.five days absence caused by
ill~ness: Failure to produce a medical certificate
for absenc& caused'by illness may~result in
disciplinary action.
E
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Mdy I sugyest that if you wish t0 continue yOUr
employment with the Ministry of government
Services that you report to work immediately
or produce satisfactory evidence to justify
your continued absence.
Failure to do so will 1edve.u~ no alternative but to
recommend to the Deputy Nlnlster that he invoke his
authority under Section 20 of the Publfc Service Act,
which states:
-A public servant who is absent from duty without
official leave for d period of tr+o weeks or such
longer psriod as is prescribed in the regulations
may by an instrument in writing be declared by his
deputy minister to have abandoned the position, and
thereupon his position becomes vacant and he ceases
to be a public servant."
We l xpact d reply from you no later than Friday, March
23, 1979."
LeGallais testified that accompanying the above quoted letter
was a copy of a letter dated March 1, 1979 from the Regional Manager of
the Property Management Branch, George Mountsteven. It reads as follows:
According to information now in the possession of
thls office and our Personnel Branch at Queen's
Park, both the Workmen's Compensation Board Doctor,
and your own Doctor, Dr. G.N. Deyo of Peterborough,
have assessed you ds fit to return to work for
light, or modified duties.
Since this office is in the pcstion of offering such
duties to you we are therefore requesting that you present
yourself at this office at 8:OO A.M. Monday Narch gth,
1979, to report for duty.
Since these duties will confine your activities to the
Ontario Government Building and the Lindsay Provincial
Police Detachment Building, d government service vehicle
will not be re-assigned to you until such time as you
are able to return to full and normal duties. Trans-
portation to and from your residence to Lindsay and
return, will be your own responsibility.
A meeting with yourself, your immediate supervisor and
the writer will be arranged for 8:30 a.m. Monday March
Sth, to go over the modified duties to which you will
be assigned. The writer will make himself available
to you at that time, or at any time to further discuss
your physical capabilities in relationship to the work
assigned.
It is to be noted that the letter of March 1, 1979 was addressed
"Registered'! while the letter of March 13, 1979 also "Registered";
is addressed to him in Florida.
At the hearing before us there was no evidence as to when the _.. e, ._,r .+.':l ,. " L, '7,
letter of March 1, 1979 was mailed by the Regional Manager. The only _' :.5(" : '1.. ,,.>,y ',,JI !; '::
evidence we have is that-e copy,.of it was,received,.bT the, grievor'on .~ :... :: _I,':
.March 20,~ 1979 and that~ the original was,delivered to h~is home in ,,..: Lo
Norwood, Ontario'-some time-nearithe'end of 'April', l&g.,' 'I' .,:' :/: ., ,Y)~. _!,_-: ',
_. ~? The above,corresponclence and the.,evidencq makes it clear that it . . .
.;was not until~,March 20,~,1979,.that: LeGallais was first.i_nfo,rmed that he
-,,,should. have been,.at work,on Monday, March 5,,tl.979 an,d..that the..Employer
was. Raking.the position that he had been absent,,wi;thout l,eave si-nce that <. 1, _I
,_, date. '. s 2.; - . . . :. ./
IL.1 :"+ " Alfhough'the ~letter of March:13; 1979 concludes'with-a clear
.direction thatthe grievdr-.contact.hii'EmployerLno later than March 23,
I: -:1~979; he,did not do'sol Instead; he.imnediately packed,up his belongings
: 'and left the very'hext day-to return-to his home in Nor-wood where'he and
. . his'wife arrived~on March 26, 1979.: He thereupon made an appointment
with his personal physician in, order to determine whether he would be
'. .: '-able tdreturh to'work buttwas unable to see him:until‘April 2;,1979.
~";Whenhe arrivedat ,his home~after the'medical!visit;fihewas told that
,a-Registered letter was awaiting him'at the PostOffice which later that
^'.; day he-discovered to be the letter of-March 26, 1979 from the Oeputy
. Mi,nistry'of Government-Services which~we.‘have:already quoted:, ":~.
,. On this evidence'we^ha&'no hesitation whatever 'ih stating that
the griever was not absent from duty without official leave for a period
,i -
of two weeks; when the beputy Minister on?March 26i.1979 purported to
0
invoke Section 20 of ?-he Public service Act and declaredthat the grieYOr
had abandoned~.his position and~ceased to be aj:Public Servant.
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It was conceded, and rightly so by the Employer, that the
grievor was on an authorized and indefinite leave of absence from
November 23, 1978 until MPrch 5, 1979. However it was contended that
his leave of absence was on that date revoked by the letter of March 1,
1979. With the greatest respect, we are unable to accept this submission.
While it is unquestionably the right of an Employer, in appropriate
circumstances, to withdraw or terminate a previously given indefinite
leave of absence, elementary principles of fairness and justice require
that reasonable notice of such withdrawal or termination be given to the
affected employee. Such notice can of course be given by any reasonable
mode,.and in this respect, a letter addressed to the employee at his last
known address is quite acceptable. However we are all of the opinion
that an authorized leave of absence for an indefinite period of time cannot
be revoked or terminated without reasonable notice and certainly not "behind
the employee's back". There being no evidence whatever as to when the letter
of March 1, 1979 was mailed, it is not necessary to consider whether a
letter mailed on Thursday, March. 1, 1979 to an Ontario address, requesting
an employee who is known to be in the State of Florida, to report to work
on Monday, March 5, 1979, is reasonable notice of revocation or termination
of a previously authorized leave of absence. One would infer from the
telephone call placed by Trumbull on March 7, 1979, that he probably suspected
that LeGallais had not, at least as of that date, received the letter of
March 1, 1979.
It is not without interest to note that the letter of
March 13, 1979 was addressed to Florida and not to the grievor's home in
Norwood, Ontario.
The evidence however does indicate that a copy of the letter of
March 1, 1979 was received by the grievor along with the letter of March
13, 1979 on March 20, 1979. In these circumstances we are all of the opinion
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" that'the' grievoi"s,'l'~ave'of"abj'e'irce'cah;lot be ,held"to, have been termina-
ted'or revoked until' f&i&h ~20, :1979,+.the d&e oh.whi~h,he'~~c‘c'eiv‘e~
the cotinsiini;c"ations' 'in'ouestidn; ~:In this respect we are not to.be~
taken as sayings that a.conununication purporting to revokesor'te&inate
a'l.eave of pbsence mus.t; be, receiv:ed.beforeJt isef-fective, but simply
~that in th_$,circ_umstances,:o~~.,thjs, case,.reasonab,le-noti.ce,.of,termination
of the indefinite leave of absence cannot be said to have been given
.I? prior to March'20; 1979.'
-.;. c1.j' > :I ; i,;
It should also be noted:fhat there was no
evidence as to when the letter of March 13, 1979 was mailed but even
: if one would assume,that it was in fact posted on March 13, 1979, this ;..a ,I .l:,,;,".:~ ',
would nof'a#ffect the result of the grievance. A notice given on March _ .o ..:3: .
13, 1979 which purports to revoke or terminate a leave of absence, cannot
be effective, until the expiration of a reasonable period of time,
which in the circumstances, having in mind the Employer's knowledge that .
the grievor'wasq~inCithe State of Florida, could not be prior to March 20, ._
1979.
We accordingly hold that the grievor was~on an authorized leave
of absence or on "official leave" continuously until March 20, 1979.
It-follows-from the above that he was not "ebsent from duty without official
leave for a period of two weeks" within the meaning of Section 20 of
The Public Service Act, when on March 26, 1979 the Deputy Minister pur-
ported to declare that he had abandoned his position and ceased to be
a Public Servant. *The Deputy Minister!s declarati.on in this regard was
issued in contravention of Section 20 and without compliance.with the
requisite condition precedent and was.accordingly a nullity and of no
force and effect.
.
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Accordingly when the Employer on March 26, 1979 took the position
that Section 20 of The public service A& had been properly invoked, when
it had not, it in substance and in fact dismissed,him from his employment
without just cause.
It was for these reasons that we made the order already outlined
at the conclusion of the hearing on Januaryl5, 1980 which we now confirm.
Dated at Toronto. Ontario this 29th day of February, 1980.
"P. J. Brunner" (Signed)
P. John Brunner Vice-Chairman
See dissent attached
K. W. Preston Member
I concur
,H. E. Weisbach Member
SEE DISSENT ATTACHED...........
DISSENT
As indicated at the conclusion of the pres;en[ftiLonof this
case on January 15, 1980, I could not agreewith the conclusion of
j,
the majority. I have'nbwi'had"tj7~'opp~~t.'t;.ni~y~rtd read the Chairman's
.R ;
Award and am'stil! Concerned that the gridvance'should succeed on
..'. /. ,.! ", ,.;j: ..i'
fact that the notice to the employee'ending his offic?al leave was . 1.: "' ': 1 -.
not known to the grievor‘for a'peri'od of two"w&ks $or'to the March
26th letter of the Deputy Minister.. 1 .-, . ..* .s : , * ,:
Mr. LeGallais was aware on February 2 and,reminded.on February ..: :: a/' ,.
18 by letter from the W.C.B. dated February 12 that he,was fit to -
return to modified duties at work should such work become available.
On or about January 18 or 19, the grievor advised his employer by
telephone that he was going to Florida. During the period from Febru-
ary 2 to March 26, he made no attempt to inform his employer by letter
or telephone of his correct address or where he could be reached.
In comparison with his efforts, the employer's actions seems more
than reasonable.
' The Chairman has stated:
In this respect, we are not to be taken as saying
that comunication purporting to revoke or terminate
a leave of absence must be received before it is effective,
but simply that in the circumstances of the case, reason-
able notice of termination of the indefinite leave of
absence cannot be said to have been given.
The grievor's leave was indefinite only to the point as to
when the employer could make available modified work with certain.
restrictions as outlined in the W.C.B. letter of February 12.
In this instance, the majority of the Board felt that the burden for
taking reasonable measures to'ensure that Mr. Legallais maintained
his employment relationship rested more with the employer than the
employee. Being reasonable in a two party relationship places a
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responsibility on both'parties.
I do not consider Mr. Legallais' actions as being reasonable
or responsible and am concerned that the award opens the door
for others who would have us believe that sOmeone else was responsible
for their unfortunate circumstance.
"K. W. Preston" (Signed)
K. W. Preston
80/02/28
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