HomeMy WebLinkAbout1980-0364.Ralph.81-12-04Before:
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AWARD 2
RE: 364/80
This grievance concerns Mr. R. W. Ralph, who is a
Correctional Officer 2, employed at the Barrie Jail. His grievance
is with respect to a one day suspension imposed upon him on March
26, 1980 by Mr. D. McFarlane; the Superintendant of the Barrie Jail,
for allegedly refusing an order of his shift supervisor, Mr. J. Fenn,
who is classified as Operational Management 14, which order was
given to the grievor on March.7, 1980.
From the,facts, it appears that Mr. Fenn was the griever's
shift supervisor on March 7, 1980, for the shift from 1450 to 2380
hours. During that shift inmate A was admitted to the Barrie
Jail, on a Warrant of Committal. When an inmate is admitted to the
Jail, as part of the process, a "Personal Property Declaration Form"
(Exhibit 4) must be completed. This form contains space for listing
(A) clothing (B) other personal effects and (C) cash,.brought
into the Jail by the inmate and which property is taken into -~
possession by staff members at the Jail. There are separate
spaces in the form entitled, respectively: (A) Clothing, (B)' Personal
Effects and (C) Cash,each of which is supposed to be signed by the
"staff member assuming custody".
The griever testified that he had processed inmate A on
March 7, 1980 and had listed the inmate's clothing, cash and other
personal effects, in Exhibit 4, as is shown by an examination of the
form. He did not, however, sign the space designated (A) Clothing,
as shown on the form. as he acknowledged he had done in the pasf
in similar circumstances.
,.
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Mr. Fenn testified that, at approximately 2130 hcurs,
when he was processing the property bags, in which the personal
property of inmate.A, other than cash was kept, and was, as well,
checking the cash left by the inmate, he observed~that the soace
on the form (Exhibit 4) marked "(A) Clothing", had not been signed.
After making enquiries of another emplayee and having ascertained
that the grievor had recorded the clothing in .*t~e form, (which
the grievor acknowledged), W. Fenn approached the grievor and
requested that he sign his name in space "A", which the griever
refused to do.
‘ti. Fenn .testified further,that he attended upon the
grievor on two mare occasions during the shift and ordered the
grievor to sign in the space, above referred to. On both of
these occasions the grievor is said, by Mr. Fenn., to have again
refused the' order.
In his evidence the grievor acknowledged two'further
~,,attendances upon him by Mr. Fenn, during which times the grievor
stated that the form (Exhibit 4) was alluded to, but the grievor
denies any further direct order to sign, as was given at the time
of the first attendance. It was acknowledged that .%. 'en*, w:lo
admitted that the conduct of the grievor had made him angry, swore
at the grievor at the time of the second atten'dance. This outburst
led to a written reprimand being placed on Mr. Fenn's record. :v‘hile
it was wrong.of Mr. Fenn to swear at the grievor, as he did, usinq
unnecessary profanity, the issue before us is: was the griever
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justified .in refusing ?lr. Fenn's order, in the circumstances cf
this case? I would not find, nor was it suggested, that the
grievor was justified in refusing to sign the fcrm beta-se of VT.
Form's nllt~llrst. .;lhCVE referred tc.
It was the position of the griever t:hat tine form ii:hic:h
he was asked to sign on March 7, 1980 (Exhibit 4) was significantl:/
different from the form employed for the same purpose which he had
previously signed in the same fashion,as requested to by Mr. Fenn,
on March 7, 1980. During a period when the grievor was
abs~ent from work, a change had been made in the language ccntained
in the form. This is to be found at the top of the form where the
following words are to be found surrounded by asterisks.
"If you are absent without authorization from
an institution, your property will be disposed
of unless you claim it within 12 months following
the date of absence."
This language would appear to be directed at an inmate who was being
advised~ that the Ministry of Correctional Services would dispose-of
property deposited pursuant t.o directions and listed in the form
if not claimed by the inmate within 12 months of his "absence
without authorization" from the Jail. By this I would take it
th,at included in such absences would be absence through escape
or failure to return after a pass.
It was the presence of this new language which disturbed
the grievor and he informed Mr. Fenn that he felt in jeopardy
should he sign in space (Al. This was because of the griever's
perception that the language, above quoted, might alert the inmate .
to a.possible cause of action against the grievor. It was argued,
on behalf of the grievor, that, in the event the inmate claimed his
clothing, which had been disposed of pursuant to the,.disclaimer, and
failings his obtaining satiefaction from the Yinistry, he might
commence action ore bring proceedings against the grie\T,or. I: was
the position of the griever that, whether.or not such an actisn or
proceeding might be successful, he should not have to execute a
form, the effect of which, increased his vulnerability to ,scme
form of legal process being brought against him by an imate.
It is a generally accepted proposition of arbitrators
that an employee who disagrees with an order from his employer shculd.
with certain exceptions, obey those orders and later, through
.resort to the grievance procedure, endeavor to challenge the
propriety of the order. On the facts of this case, I could not
find that~ the order subjected the grievor to.any danger to his
health or safety. The grievor's statement,that the apprehension
Of possible court proceedings being brought against him by an.
inmate had an adverse effect upon his mental health,cannot
qualify as an excuse for' refusing the order. The relationship
between the order and the possible hannful,impact on the griever's
health is entirely too remote.
There is a further exception to the "obey now, grieve
later" rule,where the order, if folSowed, would cause the 'employee
to engage in an "illegal"act.
In the circumstances described,it was not suggested to
the Board how the "illegal" act might be characterized. Khile
it is possible to see a nice question of bailment and the effect
of exculpatory clauses which might tax the ingenuity of a first ye==
law class studying Personal Property, this question is not
one which a person, such as the grievor, can rely on as an excuse
for refusing to follow the order of Xr. ?enn. The order would
have to much more clearly represent an order to cormit an illegal
act in order for the grievor to be able to refuse to. follcw it.
The act, in ,the case before the Board, could not reasonably be seen
as such an order as the grievor could refuse on the basis that he
would be committing an illegal act. When it was pointed out to
the grievor that the introduction of the language, which caused
him concern, indicated an attempt on the part oft the Yinistry to
further limit its liability to inmates and did not represent a
new basis for liability capable of being relied upon by the inmate,
he replied that his objection to following the order was founded,
not so much on the legal effect of the cIause, but on its possible
effect on the inmate's mind. In the absence of the clause, the. .~.
grievor submitted, the inmate might not consider that he had, under
any circumstances, a basis for legal action, should his property
be disposed of in the circumstances described. Aowever, with
the introduction of the clause, an inmate might now consider what
his rights were and,perhaps,pursue an action against the perscn
who signed in space A.
Whatever the real basis for the griever's objection, it
cannot be seen as being founded on his view that he was beingAreguesti
to undertake an illegal act~and this basis, arglled on his behalf
as representing an excuse for refusing to follow Xr. Fenn's order,
must fail.
Nor can it be said that the order was unreasonable. It
was only~seen as unreasonable by the grievor because of his view
of the possible repercussions if he obeyed it. As it has been
found that the grievor's reservations,did not, in the circm.staacesr
excuse his conduct, no such further argument need be ccnsiCered.
I’ I. 3,
7
Without having to decide whether the grievor,was
specifically told, on the two further occasions, above referred
to, to sign on space A, by Mr. Fenn, it is clear that he was
quite aware that'Mr. Fenn was ordering him to do so on those
occasions. As his refusal is not protected by any exceptions to
the,rule obligating him to obey the order and, if he chooses to do
so, challenge the order at a later time, we must. find that he
subjected himself to discipline by his.act of insubordination. In
all of the circumstances the penalty appears to be one with
which we sh'ou .ld not interfere.
RE: 37~o/ao
In the second grievance before us, Mr. Ralbh protests
the imposition, by the Employer, 'oft, a requirement that he obtain
a medical certificate, certifying that he is "unfit for duty", for
production to the Employer, whenever he is a'bsent from duty. The
requirement was imposed in Exhibit 4, which is as follows:
"flarch 26th, 1980. Mr. R. Ralph, CO2
Mr. D.M. McFarlane, Superintendent
ATTENDANCE
"It has been brought to my attention by the &ttendance. ':..:
Review Committee that you used 175 days credits in 1979 and
returned to work January 9/80 with a medical certificate certifying
you were fit for duty. . . : Since that time you attendance records is as follows:
Worked 19 days, booked off sick Feb. 3rd/80
Returned to work Feb:.4th, worked 24 days,
booked off sick March 8th and 9th. Returned to work Mar. lOth, worked 5 days,.
booked off sick March 18, 19 and 20. Re-
turned to duty March 21st.
This is completely unacceptable, therefore effective
immediately you are required to submit a proper medical certific%3te
from your Doctor certifying that you are unfit for duty each and
every absence as pet Section 13-10 of the Collective ;<<jreenent.
.’ 8.
Unless there is an immediate imsrovement it xi11 be
necessary for the Xinistry to take corrective acticn.
For your information."
D. :4. XcFar lane
Superintendent"
The section of the collective agreement referred to is as follows:
"After five (5) days' absence caused by siclcness,
no leave with pay shall be allowed unless a
certificate of a legally gualified medical
practitioner is for*rarded to the Deputy Xinister
of the ministry, certifying that the employee is
unable to attend to his official duties.. Notigith-
standing this provision, where it is suspedted that
there may be an abuse of sick leave, the Deputy
Minister or his designee may reguire an employee
to submit a medical certificate for a period of
absence of less than five (5) days."
It is the interpretaticn of the last sentence, in the above guoted
provision, which concerns the Board. z?r. Richards, fcr the purposes
of the hearing, ackncwledqed &at Mr. XcFarlane, as ..the "designee I'
of the ~Deputy Minister, was acting in good faith when he issued
Exhibit 4. It was Mr. Richards' position, however, that more than
good faith had to be demonstrated by the Deputy :?inister or his
designee in invoking the provision contained in C?e~lasi; sentence cf
sec.13.10. Mr. Richards arqued that there must not only be a d~mcnstza=ic
of a qood faith suspicion, but, as well, a reascnable suspicicn,.~h+t
there may be an abuse of sick leave.
Mr. Thomas, for the LMinistry, argued that there need only
be a qood faith suspicion on the part of the Deputy Xinister or his
designee in order to invoke the'requirement that "the employee..submit
a medical certificate for a Feriod of absence of less tSan five :5! 52VS.
5
An examinaticn of Zxhibit 4 ma!<es .it clear Chat :-!z.
McFarlane, whatever his private suspicions miqht ha-re been,
was indicating to the grievor that his offered suspicions,
which he was conveying to the grievor, were'based on the extent
'of the absences and a certain pattern of absences. :4r. !<cFarlar.e ,
in the second last sentence, further indicates that he has ccnclzced
that some significant portion o- f the absences were not because
of illness. In advising, the grievor that there must be *an
immediate improvement" in his attendance record, he must have
concluded that the grievor was malingering,, as there was no
suggestion that the grievor had used up his built up sick .leave
credits.~~
it is also clear from the evidence, that :.!r. ?!c?arlane
had not, in Exhibit 4 or any other time, indicated to the griever
that the ministry held suspicions that the qrievor was abusing .~
sick leave save for the suspicions raised in Exhibit 4. I am some-
what doubtful that there were any other suspicions in Y!'. XcFarlane's
mind when he issued'Exhibit 4 and the additional suspicions which he
raised in evidence appear to be, although real to him, scmewhat
of an afterthought. If Mr. E!cIParlane had such suspicions,-dhen
he issued Exhibit 4, he would likely7 have disclosed these sus:iciozs
in the document.
On the facts adduced in-evidence at the hearing, the
following matters were relied upon by Y?. >!cFarlane as qivinq rise
to his suspicion that the grievor miqht be abusinq the sic:< leave
provision within the meaning of sec.13.10.
1. The grievor had used 175 days of sick lea\-e credit in 15-3
against a facility sveraqe of 2-l days ;er h'ear.
It was apparent, from ?4r. ;4cFarlane's evidence, t:hac
he had a strong suspicion that there was widespread abuse of sic:<
leave on the part of many employees throughout the Sarrie Jail
facility. This belief was, in part, fostered by a noticeable
reduction in the average number of sick days taken by employees
following the establishment, by him, cf an Attendance ileview
Committee which monitored attendance at the facility and maintained
written communciation with employees to remind them of their .-
obligation to "eliminate or reduce their absences to an absolute
minimum." (See Exhibit 3, being a letter from Xr. XcSarlane,
to~the qrievor dated January 25, 1980.)
Relying on his experience with the entire grou:, of
employees, Mr. McFarlane concluded that the .grievor's absences
created a reasonable suspicion that the system was being abused,
as well, by the.griever.. Such a conclusion seems unwarranted.
An examination of the griever's attendance record (Exhibit 5)
demonstrates lengthy absences, ostensibly because the qrievor
was ill. Standing alone, it is not possible to treat such absences
as raising a reasonable suspicion, as I view the meaninq of those '~
words, that the griever was absent and physically well enouqh to
work srhen he claimed to be ill. What may have been true for the
employees at large cannot be attributed to an:; single am?lcyee.
2. Added to the fact of 175 sick day credits havinq been ta:<en
by the grievor in 1979;' was the further fact that, after havinq
returned to work on January 9, 1980, smith a medical certificate
indicating that he was fit to return to work, the griever Lid wcrk
for a futher 19 drays, until he bcoked cff sick on February 3, 13s:.
Under sec.13.1 of the Collectiy:e Agreement: .i
"Where an employee is on sick ?ea~:?-of-a"secco
which c'ommences in one calendar year and ccniinues
into the following calendar :/ear, he is non en-
titled to leave-of- absence with pay !znder secticn
13.1 of this Article for more than one hundred and
thirty (130) working days in the two (2) years unzll
he has returned to work for twenty (201 consec,Jtive
working days."
.,Because.the grievor returned to work on February 4,
1980 and worked a further 24 days before he, again, bco:<eC cff
sick on March 8th and 9th, 1980, Mr. YcFarlane concluded that the
grievor had initially miscalculated the number of days necessarlr
to comply with the requirements of sec.13.3 and therefo,re returned
to work on February 4,~ 1980 and worked 24 more days to qualif?
under sec.13.3. Such an interpretaion'is speculative at best and
is based on a suspicion unsupported by facts which miqht reasonably
point to the conclusion arrived at. At this point, .all that could
be concluded was that the qrievor was away sick for a very sign-
ificant part of the year. That alone does not mean he was not sic?<
when he said he was.
The fact that the grievor was advised that he was being
removed from the payroll on February 3, 1980, and made engui:ies
as to the reason for such acticn,adds nothing to suppcrt Xz.
,
McFarlane's speculation that'the qrievor was not sick when he
said he was.
3. Iyr. Mcrarlane indicated that around Xarch 9, 1980 he became
quite suspicious ~about whether the qrievor's absences xere as a
result of illness. He reported receiving information frCm m:emberS
of supervis.ion that the g rievor was seen pumping gas at a service
station owned by him. Mr . >lcFarlane did not record -6hc f-rnis?.e?
him with this information or when it was that the alleqeo i-Citients
were said to.have occ*Jrred. His personal investiqaticn xas ..___^_ -..>--
ductive .in substantiating that the qrievor was net sr~:< :~han he '~a-2
.^
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he was. Nevertheless, Mr. McFarlane concluded that the ~rievsr
was devoting time to his service station business and to a ccnStr*:c::c
business in which he had an interest,in a manner icconsistant wit:?
his being physicallyunableto return to hiSwork for the Zmplcyer.
It appears that his conclusions were supported by little save the
reports respecting the grievor's having been seen 3umpinq qas,
which reports were never verified at any subsequent time. It does
not appear that an::one visited the grievor, on behalf of the :liniStry,
to check upon his being sick or not. If the evidence could be
supportive. of reasonable suspicions it should, at the very least,
disclose who saw the qrievor and at what times. -fin the circumstances '
it would be expected that the actual witnesses who observed the
suspicious events would give evidence.
4. Xr . ElcFarlane also refe rred to an incident which occurred,. at
some unspecified time in 1979, when the grievor reguestei six
months leave without pay. ?lr. XcFarlane refused the request and
suggested that the qrievor should, instead, apply~for Shcrt Term
Sickness Plan benefits under the collective agreement. When the
the grievor did not do so, but again went off work sick, a suscicicn
~-was arous+.ed~-in ."lr. P!cFarlane's mind that ., ..~ the grievor was 20: sic:<,
as he claimed to be. From the evidence, we must conclude tkat
doctor's certificates were produced by the qrievor when he was off
work for five days or mores indicating that the qrievor had keen ill.
,In addition, there was evidence that the griever had been requested
to and did comply with~the provisions of Sec.13.9
"Where, for.reascns of health, an emplo>-ee is
frequently absent or unable to Ferform his
duties, the Employer may require him to Subm-Clt
to a medical examinaticn at the escense of the
Employee. "
I
I
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The grievor was examined by his own physician (Dr. ?arrington; In
December of 1979. A medical certificate was orcduced by the gri
to the effect that he was then unfit for duty. The qrievor .was
also examined by a physician nominated by the Xinistry (Dr. !?uell
who was associated with the Detentioncentre in Toronto. Dr. ?92e 1
report, dated November 21, 1979, indicated that while the qrievcr
was obese, he was then fit for work. :%c . WFarlane indicated,
in response, to questions asked in cross-examination, that he had
received instructions from Mr. Gibson, the.RegAonal ?ersonnel
Administrator of the Ministry to accept the assessment of Dr.
Farrington that the grievor was still unfit to work.
The above evidence, which ?!!. Richards aqreed was, not t
be taken as indicative of bad faith on the part of Sir. :n.c?arlane,
nevertheless does not persuade me that there was a reasonable
suspicion that the grievor was guilty of "an abuses of sick leave"
as that term is used in sec.13.10. One can have a bona fide --
suspicion that an employee on sick leave' is snot sick without tti?e
suspicion being, at the-same time, a reasonable one.
The above recited suspicions of Xr. >!cFarlane, taken si.
or together, are bare suspicions which do not suqqest anything XC
than that the employee was sick a lot. in order to be reascnable
Mr. ,YcFarlane's suspicions need not have been csFable of beinq :r
but the -evidence, if proved, even if sliqht, must suocort the
position of the Ministry. ~Taki.ng the facts relied uoon by ?!r.
YcFarlane as being true, could they sucoort a finding that :he
qrievorwas malingering when he claimed to be sick? I
1. Absence alone, no matter for what cericd, cculd nct.sn;ecrt a
finding that the urievor was net sick when he cLaimed to be.
2. Reporting to work for 19 days on Januar] 3, 1390, and 5hen
returning toe work for.24 days, after beino off sick fcr a . ca-1,
is inconclusive circumstantial evidence of the grievor beinq fit
for work when he took sick leave and is incapable of supporting
the sought for conclusion.
3. The hearsay evidence of reports that the qrievor -das'seen
. ..workinq were not shown to have occurred at t&es when the
qrievor claimed to be ill.
". 4. The request for six months leave without pay is, similariiy,
circumstantial evidence which, if proved, could not support the
desired conclusion.
5. The receipt of medical reports pursuant to sec.13.9 -das, by
1M.r. McFarlane's own evidence, taken by the Ministry and accepted
by 1Mr. McFariane to be evidence.that the grievor was too ill, at
the time in question, to support a conclusion that he was attemstinq
to abuse the sick leave provisions.
The Oxford Enblish Dictionary, amonq the several
defin itions of the word "suspects", includes:
"TO imagine something . . . wrono . . . in (a
person . . . ) on sliqht or no evidence;
to'believe or fancy to be guilty or
faulty, with insufficient prcof or
knowledge; to have suspicions or dcubts
about,, be suspicious of."
This definition encompasses a range of belief including cases where
the suspicion is a bare one and devoid of any evidentiary su;oort, :t
as well as cases where there is evidence which could su;pcrt the
conclusion arrived at, but where such evidence.might net be able
to be proved, or, if capable of being proved, is "slight:". ;ihi;
of the meanings is to apply in a given case will denend cn the
context in which it is found.
:
The first sentence of sec.13.10 relieves the qrievcr
of the need to secure a medical certificate if the absence ca-sed
by sickness is for Jess than five days. Where the absences, fcr
reasons of health,, are frequent, it is open to the Employer to
satisfy itself as to the physical condition of the Employee by
resorting the sec.13.9 and requiring the employee to submit tc a
medical exam. Resort to sec.13.9 should, in most cases, provide
evidence to satisfy the Employer that the employee's absence was
for reasons of health or otherwise. Under sec.13.9 the Employer
need not suspect that there may be an abuse of sick leave in order
to'invoke that section. It would be a strange result if the Em?lnyer
could, relying on the second sentence of sec.13.10, ccmoel an :
employee to submit medical certificates. for any absence whether
or not the Employer's suspicions reasonably supported the conclusion
that the employee was abusing sick leave. A suspicion to satisf--
the requirements of the last sentence of s.13.10 might be based in
slight evidence which could support the, conclusion arrived at, even
if the factscould not be graved. On the other hand, a great
volume of evidence which could not, if proved, support the ccncl-Sian.
is not such a suspicion as is encompassed in the :<ord "sus>ect=d"
found in sec.13.10.
From the evidence of Xr. McFarlane, I wculd'ccnclude iha; -_.- -
he did, in good faith, lcokinq at the evidence before him, as
described above, conclude, on what was essentially a "gut reacticz",
that the grievor was not sick on many of the occasicns when he
claimed to be. I would find,~the items of evidence, :.-hi& he relied
upon, when taken singly or tcqether, as circ,.nrstantial evidence,
1’
which, even if true, could not su~ccrt the ccr.cl~x,i-,r, irri.,y: 2'
by him.
When the parties negotiated the first sentence of
sec.13.10, this gave a real and substantial right to employees
not be bothered with theincDnvenienceof securing a medical
certificate for every illness. The danger of abuse is ccnsidered
in sec.13.9, which gives the Employer an overridinq and uncircum-
scribed right to require an employee, who is frequently absent frrri -_-..
work, to submit him or herself to a medical examination at then
expense of the Employer.
, While the purpose of the.second sentence of sec.13.10
'is to furnish an additional means to the Employer tc protect itself
against employee abuse of the sick leave provisions of the aqreement,
the existence of the first sentence of sec.13.10 requires that the
Employer's rights must be balanced against those of the employees'.
Any further erosion of neqotiated riqhts is not to be
easily i.nferred. Whatever might be the broader dictionary meaning
of the word, "suspected", as found in the last sentence of sec.13.12,
it is subject to being affected by the context in which it is found.
My interpretation of sec.13.10 isconsistant with furnishinq the
Ministry with meaningful rights when it suspects an e.mgloyee is
malingering. It also preserves a meaningful application of the
first sentence of sec.13.10,to the extent that it creates rights
in favour of employees.
In the result, the grievance is allowed and the griever
is not obliged to obtain a medical certificate as directed by Xr.
McFarlane's letter (Exhibit 4). The grievance was arz.Jed, by
both parties, on the basis that the issue was whether the qrievcr
was required to obtain medical certificates for every abser.ce as
17
directed in Exhibit 4, notwithstanding the "Statement
of Grievance." This was the only issue before us and
our relief is the only relief available to the qrievor
in the circumstances.
DATED at Lo.ndon, Ontario this 4th day of December, 1981.
M. R. Gorsky Vice Chairman
I?. Russell Member
(See attached)
H. J. Laing Member
. : , 2. !
^.
DISSENT
I regret that I ,am obliged to dissent from the award of my
colleagues with respect to their disposition of the second grievance
which is number 370/80.
The first basis for my dissenting opinion is the interpreta-
tion of Article 13.10'of the Collective.Agreement and, in particular,
the last sentence of that Article. This sentence reads as follows:
"Notwithstanding this provisibn where it is-suspected
.that there may be abuse of sick leave, the Deputy
Minister or his designee may require an employee to
submit a medical certificate for a period of absence
of less than five days."
The operative words that require interpretation are "where
it is suspected that there may be an abuse". .The major~ity have
concluded that there must be not only an actual suspicion of abuse,
but that the suspicion must be founded on reasonable grounds. ~~
With great respect to my colleagues, such an interpretation
effectively re-writes the contract reached by the parties. It
follows.that the majority, by the conclusion they.have reached, have
added to the provision a qualification or criteria that the parties
did not negotiate. Specifically the majority have re-written the
operative words to read, n . ..where it is suspected, on reasonable
grounds that there may be an abuse..." (emphasis added)
Quite obviously, it was open to the parties to negotiate such
qualification or criteria, but the fact of the matter is that 'they
did not do so. It is a fundamental principle of arbitration law,
that a Board of Arbitration has no jurisdiction to add to or amend
the Collective Agreement between the parties. Indeed, our Board
- 2 -
is expressly prohibited from doing so by the provisions of this
very Collective Agreement.
In my view, the word "suspected" connotes a subjective view,
in this case of the Deputy Minister orhis designee. I agree that
there must be an actual suspicion and that such a suspicion must
be formulated in good faith. To that extent, it may be necessary
that there be some factual information submitted to the Board in
order to determine whether the suspicion was made in good faith.
However, in this case, it was fairly conceded by Mr. Richards, on
behalf, of~the,;grievor, that the suspicion in question was founded in
good faith. Clearly, in making such concession, Mr. Richards and
the grievor have necessarily admitted that there was a suspicion
in fact. Thus, in these circumstances, it is not necessary for the
Board to enquire into any facts as to the.basis of the suspicion.
In summary then, it is my view that the majority have added
to the provision a restriction or qualification that the parties
did'not negotiate, namely that the suspicion in question must be
based on reasonable grounds. It is further my view that in view
of the admission both that a suspicion occurred in fact and that
Mr. McFarlane was acting in good faith, the requirements of the
provision have been fully'met.
Apart altogether from the views I have expressed as to the
proper interpretation of Section 13.10, I must also disagree with
the view of my colleagues even if I ,am prepared to accept the test
they would apply. In effect, what'the majority purport to have.'
done is to review the facts pl~aced before our Board with a view to
- 3 -
determining whether the suspicion in question was founded on
reasonable grounds. In fact, however, they have reviewed the
facts and come .to a conclusion assto whether, in actuality,
there was some abuse, rather than to apply their own test,
namely whether the suspicion was founded on reasonable grounds.~
Surely, there is a distinction between the interpretation
of facts for the purpose of determining whether the suspicion in
question was a reasonable one and whether the facts disclose an
actual abuse. The.latter goes to the substantivemerits of the
case, while the former goes to the factual foundation of the
suspicion. The burden on the employer in.this case has been
converted by the majority from a review of the. facts for one pur-
pose, namely the reasonableness of the suspicion, to a much higher
and more difficult burden, namely whether there was abuse or not.
To illustrate my concern, let me merely cite the emphasis
that the majority have placed on the fact that some of the evidence
is "circumstantial". Apart altogether from the fact that circum-
stantial evidence may be sufficient to prove the merits of the case.
I am strongly of the view that circumstantial evidence may be ample
to establish the reasonableness of the suspicion, even if it falls
short of establishing actual abuse. Indeed, in view of the pattern
of absence in 1980, as well as the other surrounding facts, I have
no.hesitation in concluding that the suspicion of Mr. McFarlane was
founded on reasonable grounds and that the requirements of Article
13.10 had been met, even if one accepts the amended form of the
Article resulting ~from the award of the majority. In the result,
the majority have applied to the word "reasonable" a standard klhich, ~
in my respectful view, is clearly unreasonable.
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In the.result, I would have dismissed this grievance, both
on the interpretation of the Article in question and on my view of
evidence as applied to the test ennunciated by my colleagues.
:- ” .- ~-
H. J. Laing
: /et