HomeMy WebLinkAbout1982-0537.Jones.83-08-02'IN THE MATTER OF AN ARBITRATION
Under
THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT
Before
THE GRIEVANCE SETTLEMENT BOARD
Between: OPSEU (Jeanette Jones)
Grievor
- and -
The Crown in Right of Ontario (Ministry of Correctional SerViCeS)
Employer :
Before: E. B. Jolliffe, Q.C. Vice Chairman
L. Robbins Member
P. D. Camp Member
-- _... --. , #I . . _- 3 -For~%e Grievor: L. Stevens
d Grikvance Officer
Ontario Public Service Employees Union
For the Employer: J. F. Benedict .-
Manager, Staff Relations
Personnel Branch Ministry of Correctional Services
Hearings: January 20, 1983
February 21, 1983 April 15, 1983
DECISION
The grievance of Ms. Jeanette Jones, a Correctional
Officer 2, followed her dismissal on October 1, 1982. At
hearings held in January and February, 1983, it was described
by the Employer as a "non-disciplinary discharge." In other
.words, the Employer's position is that although there, were no
grounds for discipline, the griever's record of absenteeism,
.innocent though it may have been, was such as to justify dis-
missal "for cause" within the meaning of Section 22(3) of the
Public Service Act. The case for the grievor is that her
absences were not excessive in the circumstances apd that her
health problems were in the process of being resolved at the
.time of dismis~sal.
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:?** It'was further alleged by the Employer that the E$+& :;'; ~z:;.$ _ 4- *,,. gr;Tvor had failed to give satisfactory explanations for her
iii&asing absenteeipm and in particular refused to disclose
a' relevant medical information, which is denied by the grievor.
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As superintendent of the Maplehurst Correctional
Cen'tre, Mr. A.J. Roberts had authority to dismiss an emp,loyee
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for cause. Exhibit 3. his letter to Ms. Jones of October
l,, 1982,(giving reasons repeated by him in testimony) was
as follows:
At 1440 hours on September 30, 1982 I met with you to discuss my
mst serious ccncerns over your ata. Present at this
mseting also were your representative (Mr. W. Gillies) and your
Wparvisor (Mr. C. Carroll, CNl.5).
In opening the meeting I went through, in detail, your use of attendance credits since you were first eqloyed at Maplehurst as a full-time Correctional Officer in October of 1979, (I have attached a summary of~sanks to this letter) and also themany seetings, letters, and other actions taken over the past two and
one-half years in an effort to resolve a continuing and escalating
problem (also susrrarised on separate sheet).
IBrly in the meeting I stressed that my ccncerns ware not that I suspected an abuse of attendance credits. My ccncern, as the
Ministry's representative, is that the frequency snd high-usage of attendance credits by you has become nust serious in that it seems you are unable (de an employee of this Ministry) to keep your part of the bar+*-- that you are able to attend for duty
on a regular'and frequent basis. Your use of sick-time has been,
since 1980, considerably higher than the average at this ccsnplex
~-,y !-snd, in spite of the many efforts and actions tnken (all of a non-disciplinary nature, as roost of your absences wsre seen as
-2 tiically justified) the situation is not improving but guite the
reverse. In fact, at tkis present time your use,of "cccasionailal"
sick days is almost five (5) tines the average. In 1981 your use
was alnost three (3) times the average and,in 1980, approximately., double the average.
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In a final effort to determine the overall level of your general health a mdical examination was arranged oh May 25, 1982 (under the terms of your Collective Agreemmt). It was hoped that at leastitcculd bedeterminedwhether yourmdical problans mre of a physical mture or (as was suggested by your physician,
Dr..Salter, in Nmcmber 1981 via a certificate).that your absehces
wre perhaps mre stress related. Unfortunately, it was ~ssible
for ms to be of further assistance as you firmly refused to release ahymadical iufonmtionwhat-so-ever fmDr. Ku&a (the examining
physician) to me. In point of fact, your attitude was sc obstructive and negative that, after several metings (when you were advised not only by rre but also by your Union -- all of which you ignored)
it took fully three (3) mnths before Dr. Kunica was able to submit any kind of a report. The report did, hmever, indicate (dated August 20, 1982) that you had a "higher than average predilection
towards absenteeism" hzlpe0fiiqxo~t.
- apoorprcgnosis intems of any future
You have been, for approximtely the past twelve (12) months, under a requir-ttopraduce adcctor's certificate for each
sick-absence. You have, on nmrous occasions been n&e aware, by me, of the seriousness of your position but it seems that you have stillrWzbeen able tooverarns your rsad.icalproblems, in spite of several past re-assurances to m and Egr. Carroll that the mdical problems me resolved.
At the meting of September 3Oth, I again asked you if you were preparcxl to release nedical information pertinent to your absences
so thatanydecision I mJdc~uld be a better-info&decision. You decided tw~ver (as is your right, of course) to firmly deny this request. I canonlymake assumptions as to your continued refusal to ccoperate but suffice to say that, as you rust have real&d the seriousness of your situation: (that in fact your
mlomt status was perhaps in jeopardy) you might bve been wall advised to reconsider your refusal.
I can only ace to the corclusion; reluctantly, that you inust
be dimissed from your enploynent for "innocent absenteeism", a non-disciplinary dismissal. The dismissal is to be effective inmsdiately upon receipt of this letter and you will be given ti .(2) wseks py in lieu of notice. It till therefore not be
necessary for You to appear for duty following receipt of this letter. Your mntinued failure to attend for duty regularly: your past proven record of excessively high absenteeism and the poor nedical prognosis for the future all indicate what is '
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termed "innocent absenteeism", absenteeism for reasons not only
beyond your control lxt also beyond the control of your employer.
Ynnocent absenteeism" of this nature cannot (and has not in your
case) be subjected to what might be termed "progressive discipline"
in an effort to resolve. It is morally wrong to use disciplinary
measures in an attempt to correct problems which are beyond the
control of the employee, especially those of a medical/health
nature. There seems to be little to be gained in placing you
upon a probationary period as the lengthy pried you have spar&
under the "Mandatory Doctor's Certificate" has, in effect, been
such a probationary period --: a period in which improvement was
looked for but which was not forthcoming. No disciplinary measures
can effectively resolve genuine medical problems, which is why I
did not resort to such measures.
I wish you well in your future and genuinely hope that your
oontinuing~health problems may be resolved.
Ms. Jones was first employed by the Ministry on casual
staff in May, 1979. On October 12 of that year she joined the
classified staff as a COl. Less than 12 months later she became
a C02. Apparently her attendance record had been acceptable
during her probation period. A summary of her absences is,as
follows:
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a' 1979, May 22'to December 31, 1.5 days on 2 occasions
(plus 3 days during strike):
1980, January 1 to December31, 10 days on 10 occasions; -
1981, January 1 to December 31, 47..5 days on 11 occasions;
1982, January 1 to September 25, 16 days on 11 occasions.
The figures for 1981 are somewhat distorted, as Mr. '
Roberts himself pointed out, in that the grievor was hospitalized.
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and treated as an outpatient in April, May and June of 1981,
being absent about 33 days. Attached to the dismissal letter
was the following outline of the record on which the
Superintendent relies:
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August '28, 1980 - spa&y rmno froa.Ms. Jones, explanation re leaving shift at 1900 hours - sick.
January, 16, 1981 - letter of counsel,re attendance from Superintendent.
.-'March '27, 1981 -.verbal counsel re attendance fmn Mr. R. Ferguson
.' my 25, 1981:- meeting with Superintendent re attendance '0 June 7, 1981 - letter frcxnM& Jones to Superintendent expressing
thanks for his concern and understanding. JlXl@
August
cctober
Nmmber
'March
April
--August
August
September September
8, 1981 - meeting with Superintendent re attendance - at request
." oq Ms. Jones.
24, 1981 - letter to Ms. Jones fran Superintendent placing her on mandatory niedical certificate until February 24,
1982 due to unsatisfactory attendance. 26, 1981 : Annual appraisal, Mgative ammmts re attendance
13, 1981,- neeting with Superintendent re attendance~and related concerns. 18, 1982 - letter to Ms. Jones from Superintendent renroving her from Mandatory mica1 Certificate as. an incentive. 15, 1982 - letter to Ms. Jones from Superintendent ra incident of April 4 re sick on shift.
29, 1982 - left shift early - personal Froblems.
4, 1982 - letter to Ms. Jones frcxn Superintendent re continued absenteeism, Replaced onto !!andatory Medical Certificate,
25, 1982 - MexEcal examination 1, 1982 - letter to Ms. Jones frcxn Superintendent re her lack . of ocoperatlon re redid. examination. 1, 1982 - left shift at 2130 hours - sick
20, 1982 - nrdical report frcnn Dr. Kunica following examination my 25. Poor prognosis.
30, 1982 - letter to Ms. Jones fran Superintendent -- mandatory &ical certificate required until Decmr 31st, 1982.
14, 1982 - left shift at 1015 hours - sick 20, 1982 - mzorandum frcxn Ms. Jones repinability to provide doctor's certificate due to a charge of $5.00 par certificate. Superintendent replied --"her responsibility"
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In his testimony, Mr. Roberts said that Maplehurst is
the second largest
an average of 400
basis. About half
correctiona
inmates, all
of them are
1. centre in the province, holding
males, on a medium security
in an educational program; the
others are used for maintenance and other work. This requires
a staff totalling 241 full-time employees and 50 casuals, of
whom 134 are correctional officers acting as custodians,
counsellors and guides. The complement is minimum, said Mr.
Roberts, so that an absence necessitates the use of a casual
at a cost of $100 for a casual or $150 if another employee
works at overtime rates. Further, he stressed, the impact
of absence for a full shift may cause the cancellation or de
of a program.
Apart from the absenteeism Mr. Roberts found fault with
the grievor's "attitude." Although the vague language in a series < 91
5; y &'%dical certificqtes usually satisfied him that an absence
-3' was legitim~ate, or, as he put it, "innocent,' he was disturbed
by her reluctance to explain the nature of her troubles. An -
exception occurred in May, 1981. Troubled by her lengthy
absence --- with no information as to the date of her return ---
he questioned her at a meeting in his office on May 25, to which
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she had been summoned by the Assistant Superintendent. At that
meeting, according to Mr. Roberts, "she was apologetic. She
couldn't give a date for her return, but her problem was being
resolved and her attendance would improve. She was still an
outpatient at the hospital."
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On June 7 the grievor wrote Mr. Roberts as follows:
I muld like to thank you for your concern with me at
last EYidays 2 pn meeting.
W. Ferguson made a statement which you were sensitive
enough to realize as being accurate.
I wasn't prepared to discuss the situation then, tit because, as a superintendent you responded with a sincere
interest in my well being here.at Maplehui-st, I would
appreciate being able to see you again.
The result was another meeting with the Superintendent
on June 8, when "she said she was having personal as well as 91
mmdi>al problems, but thought they were being resolved, and u -5' she expressed regret for her absences..... She said she had
to visit the hospital daily..... We were both concerned."
This appears to have been the only occasion when a
rapport of some kind was established between the Superintendent
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and the grievor. Thereafter he became increasingly insistent
that she provide more specific information about her health
problems. In his opinion, she was uncommunicative and evasive
in her responses. Eventually this led to what is known as a
"mandatory referral" under Article 51.9 of-the collective agree-
ment, which is as follows:
Where for reasons of health, an employee is frequently absent
or unable to perform his duties, the Deployer may require him
to s&nit to S medical examination at the expense of the
Employer.
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Accordingly, the grievor attended an interview with
Dr.. Kunica, whqunder contract with the Ministry, has often
been.called on to examine inmates and staff. He testified
that he spent over an hour with Ms. Jones, although she says it
was more like 10 minutes and she did not even have to take her
4. .I
. ” . coa$lwff. They agree that his questions were about her history.
y$ Dr'-" .- . K)lnica then sent Mr. Roberts the following opinion: Q
CN the basis of my interview-with Mrs.-Jeanette Jones on May
25, 1982, it is my opinion that at the time of the inter-
view, Mrs. Jones was medically capable of prforming her
regular duties at Maplehurst.
With regards to prognosis, the past history would suggest an
above average predilection to absenteeism. .: :.
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A curious feature of Dr. Kunica's opinion is that
it is dated August 20, almost three months after he saw Ms.
Jones and si~x weeks before her dismissal.
There is a conflict of evidence about Dr. Kunica's
contacts with other physicians. He said he did not write Mr.
Roberts until August 20 because,he did not receive from Ms.
Jones "until July or August" her "conditional consent" to the
release of information by her own doctors. However, he received
no information from Dr. Hunter. "In her case," he said, "my
diagnosis was based on what she told me. I phoned both Hunter
and Bradley. They talked to me but.1 received no letters from
them." The griever had mentioned a psychiatrist, but Dr.
Kunica could not recall the name.
-&- ‘I-, <. during the interviep.
80%$11," abut he had a
Dr. Kunica said the grievor was "very co-operative"
He accepted her assurance that she was
list of her absences and sought expla-
nations. The grievor told~ him she did not believe in
"medication," an apparent reference to emotional problems. 'He
was made aware that she had been in hospital for treatment to
reduce her weight: in fact she had lost 35 pounds.
In cross-examination, Mr. Roberts insisted that on
September 30 the grievor "denied me the information requested"
--- i.e. refused consent to the disclosure of her own physicians'
opinions.
The grievor test ified she was at first unwilling
to give such consent "because I was angry at the way I was
being treated." Other employees, she complained, had been
"referred to Queen's Park for medicals." However, she asserted
that she 'told management in June "they could have the medical
information." There was no offer made at the meeting of Sept-
ember 30 since she had signed a form of consent as soon as she
received it, of which her physicians were aware.
MS. Ngaire Clarke, R.N., of the North Halton Health
Clinic, gave evidence at the hearing of February 21. There
w!$-admitted into evidence the letter she wrote on November 5,
19$2 (five weeks after the dismissal) to Mr. E.M. Rowett of
OPSEU. It was as follows:
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Miss Jones was initially referred to us in February 1982 by
her family physician. She was diagnosed as having a mild reactive
depression at that time. She was seen by our consultant psychiatrist,
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Dr. Ligate, and as well, received some supportive counselling
around situational problems. No medication was prescribed.
I continued seeing Miss Jones sporadically until June 1982.
At that time I discharged her back to Dr. tinter. She did not
appear clinically depressed upon discharge.
We saw Miss Jones again in September 1982. she was feeling
upset, extremely agitated and desperate. Antidepressants had
been prescribed by her family doctor. Miss Jones saw Dr. Ligate
on October 6th, 1982 and was now clearly manifesting symptoms of
depression. Dr. Ligate advised that MissJones remain on anti-
depressant medication for several months.
We will see~her every two weeks and monitor her medication.
She is responding favourably to treatment. I see no~reason for
Miss Jones not to return to wxk presently on a regular basis.
Elaborating on her letter, Ms. Clarke said that the
grievor had kept her appointments regularly in recent months.
They had met five or six times in the first half of 1982, o&e
with Dr. Ligate, a psychiatrist. The grievor was thought to be t
suffering from "depression." Previously she had been unwilling
to accept medication, but after October she has taken antide-
pressants and Ms. Clarke thoughtthatby February her condition .., < II)
$j ,- had, fich improved. , a'
A second letter admitted into evidence was to the -
Union from Dr. I.A. Hunter, dated November -10. This physician
(not a witness) wrote as follows:
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Mrs. Jones first attended my office on November 30, 1981. She
complained of a nervous stomach which she stated was due to stress
from her position as a correctional office? .X-rays of her stomach
and gall bladder ware negative except for evidence of initial pylorus
spasm. Mrs. Jones continued to attend my office monthly. In January
of 1982 I recontnerded she lose some weight and referred her to Dr.
K. Bradley for interdental wiring. In less than t& months she had
lost 32 pounds. In February 1982 I referred Mrs. Jones to the North
Halton Mental Health Clinic due to her chronic anxiety and depression.
Mrs. Jcnes continued to attend my office bi-monthly. Mrs. Jones has
experienced an emotionally upsetting time in her life. She has
followed my,recommendations to assist bar in straightening out her
personal conflicts.
In my opinion Mrs. Jones should bs able to resume her duties as a
correctional officer .in the forseeable~ future. I trust that the above
information will assist you in assessing thisgrievance.
A letter from Dr. T.J. Salter (who did not testify)
was received 'by.the Union on November 30:
Jeanette Jones was under our medical care until November 1981.
She wasfrequently absent from work in 1980 and 1981. She was
seen by myself an many occasions and was admitted to the hospital
on April 21, 1981 with endcgenous depression. She was also seen in consultation back in tivember 1979 with a similar thing. har
absenteeisms are well documented by myself and are directly related
,-.T !tp depression which may have centered around lifestyle and conflicts.
,Shehas mrked very hard M these.aspects of her life, and as far .
, Qas I am concerned at this time she is improving dramatically. She
has seen Dr. Liggett a Psychiatrist, myself, and Dr. B.A. Richards.
If-fhere are any problems, please feel free to oontact me, but as
mentioned, I am aware of all of her days of absenteeisms from work
in late 1979, 1980, and 1981, and as far as I am concerned these
are all with legitimate reasons..
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It is apparent from all the available medical opinions
that (apar~t from being overweight) the grievor's health problems
were of an emotional rather than physical nature. As a therapist
with considerable experience in psychiatric work, Ms. Clarke
testified however that the type of depression diagnosed by Dr.
Ligate on October 6 has so many effects as to become a physical
illness. Ms. Clarke thought that (prior to the dismissal) the
grievor's condition had been "triggered" by her personal life
rather than her job, and in particular by relations with her
son and others. Indeed, Ms. Clarke testified, "work problems
were not the primary forus of our discussions."
The grievor's history, as told in her testimony.may
now be summarized.
Ms. Jones worked as a book-keeper in London, Ontario,
~-a$kr leaving high school and then for several years in the
ipaurance business.' Thereafter she took two years of an arts
course at Sheridan College, also working for about three
years as "an unpaid volunteer probation officer." Apparently
this is what led to her casual employment at Maplehurst,
beginning in May, 1979, and five months later she became a
F
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.: CO2in 1980.
During her first year the grievor was assigned to
"Unit 2" in the Adult Training program. She liked the work,
which was-mostly, with inmates. However, after 12 months she
was transferred to the "General Duties" area. She resented
the transfer, which she at~tributed to her friendship with another
officer in.Unit 2. In her new assignment, which involved more
contacts with other staff and with visitors, she was "not.
comfortable" and "felt under pressure." She worked "more with
management, talking to them only when in trouble." There was
no "one-on-one" contact such as she had experienced in Unit 2:
she dealt with inmates "only when discipline was warranted."
Her request for a transfer was rejected, but she could not
accept management's explanations that there was a rotation
policy so that correctional officers would become capable of
. . .% f:nkioning in any capacity. ,s,- q,
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At that time the grievor was living with a lo-year-
old son and her parents, but continued "discreetly" a relation-
ship with the other officer, a Mr. P. Snowden. She felt that
for this reason she incurred the'disapproval of the Assistant
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Superintendent, Mr. Ferguson., This she considered unfair
because (according to her) "there are married couples at
Maplehurst." Nevertheless, there were feelings of guilt on
her part, which intensified when'she and her son moved into
the same quarters with Mr. Snowden, after which she became the
co-defendant in a divorce action: "the divorce case upset me."
She also worried about the effect on her son as well as being
"pressured at work because of my absences."
,Thus when Dr. Salter took tests and put her in the
hospital for 10 days she felt relieved, needing "to get out
of the environment." She welcomed his advice to take time off
and be an outpatient for several weeks. At the interviews with
Mr. Roberts in May and June, 1981, she did not tell him about
her depression “because I didn't want him to believe it ---
nor myself. I didn't respond to therapy at that time. Basical
,-m!j.ust let h' t ings ride and called in sick."
/ aa'
lY.
Being preoccupied with her own worries rather than
with her job, absenteeism increased-, as the grievor acknowledges.
The only appraisal in evidence is Exhibit 15, made in October,
1981, in respect of the previuus year. She was then rated
"satisfactory except in the following important respects:
(a) Staff relationship, (b) Attendance." Signed by a supervisor,
Mr. P. Mihaichuk,' OM 15 (in consultation with two other super-
visors) it also contained the following "Summary Remarks:"
Jeannette Jones has shown a slight deterioration in her job
performance, staff relationship and attendance. Jeannette
appears to be less motivated than she was a year ago, is less
co-operative with staff and her peers. she is a "borderline"
punctuality attendant. She tends to "pick and choose" her
duties, causing a good deal of discontent amongst her peers.
Jeannette seems to bs very abrupt with those she disagrees
with thus causing further problems in communications.
Ms. Jones is an intelligent and mature @ficer quite capable
of upgrading herself with very little effort. It is my
opinion that with some effort Ms. Jcmes should be able to overcome these problems.
On reading the Summary, Mr. Roberts added remarks
of his own, as follows:
1. I am concerned re the comments ccntained in this ” < II
$q, - _,. ,- appraisal. I agree that Ms. Jones seems only to be
i .marking time at present.
ea'
to sign it. Her reasons for disagreement have not been exp
Ms. Jones did notagree'with the appraisal and refused
lained.
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When the griever.-saw Ms. Clarke in February, 1982,
she was concerned about her son's "life style" which she thought
had been affected by her own. Mr. Snowden left in May, 1982,
and "I didn't know whether I could survive." She also had
problems with two co-workers and again asked~for a transfer.
After living with her parents for a while she "felt desperate
and went out and bought a home."
In August and September there were more absences when
the grievor left work before completing her shift, complaining
of, "stomach cramps"~ and "flu." These led to a letter from
Mr. Roberts dated September 21, in which he advised that "the
requirement to provide certificates until being reviewed on
December 31, 1982 (as stated in my letter to you dated August
30, 1982) still applies. I must therefore expect such a
certificate from you immediately for the absence of a half-day
or!!S.eptember 14, 1982." This was one of several written admon- .-.a
it&ons but Mr. Roberts gave no warning on that date (or any
date prior to September 30) that dismissal was imminent.
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On the same day, September 21, the grievor returned
to Ms. Clarke (for the first time since June) and her condition
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was found to be such that she was advised to see the psychia-
trist again and to stay away from work for a few days. She
so informed-Mr. Roberts. On September 28 (the day after her
return to work) he summoned her to the meeting of September
30. She was not communicative at that meeting; in her words:
"there were several people present and I didn't want to talk."
However, she had told Mr. Roberts the previous week that she.
was "having severe emotional problems."
Ms. Jones said her meetings with Ms. Clarke after
September 21 "instilled confidence in me." In particular, "
she had learned to accept her need for medication. Testifying
in February, she said she was now "getting on well" with Mr.
Snowden, and "I haven't had any physical problems since December.
I feel I could now cope with the work --- even with General
Duties."
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a' The grievbr admitted that Dr. Hunter had given her
"medication" in August, but she did not take it regularly.
The psychiatrist on October 6 increased the prescription-and
thereafter, counselled and encouraged by Ms. Clarke, Ms. Jones
took it regularly and said she would continue to do so until
March or as long as required on medical advice. She was
emphatic that "I think I am cured." Prior to her dismissal
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she had never mentioned the psychiatrist to Mr. Roberts but
she felt "he ought to have g~iven me another break."
At the third day of hearings in this case, Mr. G.W.
Browne testified. He is Director of Employment Advisory Services,
a Branch of the Ministry of Government Services assisting all
Ministries. It was reorganized in April, 1982, to include
Employee Health Services, Corporate Safety Services and Counsel-
ling Services. .Of the three, the first gives help directly to
employees, some on a voluntary basis and others on mandatory
referral pursuant to Article 51(g) in the collective agreement.
There are 13 offices in Toronto but certain work ---, about six
percent --- is referred to physicians in private practice.
Mr. Browne specified that the relationship is "confidential."
In some cases the employee may be sent to a psychiatrist. The
Branch receives as many as 55,000 "queries" a year.
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a' Mr. Browne' said it is the employee who receives a
Medical opinion, not the employer. He then made the significant
remark that "sometimes management would like more information
than can be legally required."
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. ..I. The next witness.called by Ms. Stevens was Mr. W.H.R.
Osborne, a union steward who accompanied Ms. Jones at several
meetings with Mr. Roberts. He said the Superintendent
"constantly" demanded medical records, and "I didn't feel he
had that right." There was never any "direct reference to the
prospect of dismissal" and "the firing came as a complete
shock to me --- 1 thought the dial6gue was continuing."
Mr. Osborne said.he knew of other employees with
records of absenteeism as high as 30 days in one year for which
no discipline had been imposed, and he mentioned four names,
two of them involving alcoholism. There were two he believed
had been referred to Employee Health Services.
The witness also said he and two other employees had
obtained CO2 attendance records from Ms. Doris Grady, a personnel
cjerk (who also testified under subpoena) and found that 110
._,, -- CO2'sin 1981 had an average of 10 days' sick leave: for 115 in a'
'1982 the average was 11.2. The count did not include COl's,
the office staff or supervisors. -
These figures can be compared with those offered by
Mr. Roberts. He had computed averages for the entire complement
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at Maplehurst --- including supervisors and office staff,
totalling 241. Of that total 134 are correctional officers.
Based on the total, Mr. Roberts had computed average absences
to be 0.15 days in 1980, 8.5 days in 1981 and 6.73 days for
the first nine months of 1982. In her testimony, Ms. Grady
conceded that average absenteeism for correctional officers
is higher than that of other employees.
In his argument Mr. Benedict emphasized the "esca-
lation" in the griever's record of absenteeism --- 10 days in
1980, 14,days in 1981 (excluding her 33-day leave by reason
of hospitalization) and 16.5 days in the first.nine months of
1982. This constituted a serious problem in an institution
such as Maplehurst. A vacant post had to be filled at heavy
cost.. Mr. Roberts had repeatedly brought the problem to the
grievor's attention, as shown by the five letters in evidence ,
186 well as his meeting with her. Instead of improvement, the ,_,, '-
zrievor's attendance deteriorated. Dr. Kunica's prognosis
was discouraging and the letters from Drs. Hunter and Salter
did not address the real issue. Mr. Benedict said the
Employer does not question the grievor's ability, only the
unacceptable absenteeism, even though it was recognized to be
."innocent absenteeism"
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Mr. Benedict referred to several cases in the private
sector, ,saying that he favoured the reasoning of arbitrator
H.D. Brown in Crouse-Hinds (1981) 3 L.A.C. (3d) 230. He also
pointed out that the record showed frequent one-day absences
immediately before or after the griever's regular days offs.
He conceded that correctional officers' work is stressful and
questioned the grie'vor's capacity to cope with it. In summary,
Mr. Benedict said the grievor's record was "worse than the
average" and the prognosis was "not good."
On behalf of the grievor;Ms. Stevens,said the Crouse-
Hinds case was one in which the grievor had been absent for
34 per cent and ae,much as 76 per cent of working days, which
bore no resemblance to the facts in th.is case. The evidence
here showed that absences were little more than the average for
all CO Zemployees; in fact her absenteeism was not excessive
a& it had been due to the emotional crises she suffered in ~_., _-
19iJ and 1982. Dr. IKunica's examination, had been superficial
'and his opinion merely indicated an impression gained from a
brief interview. Once her condition-was correctly diagnosed
and treated, the grievor's health improved and there was un-
contradicted evidence that by February she could be considered
healthy. The Employer had failed to prove a hopeless situation.
- 24 -
MS. Stevens suggested that the proper course would have been
to grant sick leave and require a return to work as soon as the
grievor could be taken off medication. It was further argued
that her emotional problems had been aggravated by harassment
on the part of Mr. Roberts, who said her absenteeism was
"innocent" and at the same time repeatedly found fault with
her and demanded information he was not entitled to receive.
It was strange that management had referred other employees ---
even alcoholics --- to Employee Advisory Services for treatment,
but chose to impose the extreme penalty on Ms. Jones, as though
she had committed the gravest of offences.
Our conclusions in
evidence. Most of the facts
this case must be based on the
are not in dispute.
(I) medi7Sal
We are not particu larly impressed by any of the
opinions which have been put forward. Nor are we in \
on to pronounce what is termed a "prognosis." a &sit
The real issue here is whether, on October 1, 1982,
a "dismissal for cause" was justified under Section 22(3) of
the Public Service Act, which is as follows:
- 25 -
A deputy minister may for‘cause dismiss from employment in
accordance with the regulations any public servant in his
ministry.
In the letter of dismissal Mr. Roberts did not inform
the grievor (ashe ought to have done) that she had the right
to grieve. However , .she did so within a few days and in due
course the matter was referred to arbitration. These proceedings
fall within Sections 18 and 19 in the Crown Employees Collective
Bargaining Act. 'which enable an employee to grieve that he or
she has been dismissed "without just cause," and to refer the
matter to arbitration, where this Board's decision is to be
final and binding.
Cur conclusion is that the dismissal of the grievor
was without just cause. We have arrived at that conclusion,
for the following reasons.
a’ The stated ground for the dismissal was excessive
absenteeism --- which the Employer has repeatedly termed
"innocent absenteeism." Was it exce'ssivel
Mr. Roberts' statements in the dismissal letter
were,.to say the least, exaggerated. As previously quoted he
said:
‘. . ‘,’
- 26 -
ycrur use of sick-time has'been, since 1980, considerably higher
than the average at this complex and, in spite of the many efforts
and actions taken (all of a non-disciplinary nature, as most of
'your, absences were seen as medically justified) the situation is not
improving but quite the reverie. In fact, at this present time your
use of "cccasional" sick days is almost five (5) times the average.
m 1981 y&r use was almost three (3) times the average and, in 1980,
approximately double the average.
The evidence establishes snot only the griever's record
but also that of all,employees i,n the CO2 classification and
also the institutional average (,including all employees at the
Centre) as follows:
All COZ's Average Institutional Average
1980 10 (not available) 0.15
1981 14 10 8.5
1982 16.5 11.2 6.73
It is to be noted that the griever's figure for 1981
de not include the extended period when she was receiving ,_,a _-
hospital treatment,as an inpatient or, an outpatient. also noted a
---
as she herself acknowledged --- is the fact that her
absences throughout exceeded the average for all officers at her
level. Mr. Roberts' comparison with the institutional average
is unfair. It was conceded by Dr. Kunica and others that the
work of correctional officers is more stressful than that of
- 27 -
.,.
.:
others. Thus it is not surprising that they were absent more
often than office workers at Maplehurst. Further, it must be
obvious that when the CO2 average was 10 or 11.2, some officers
must have been below that figure --- and some, like Ms. Jones,
must have been higher.
Our second ground for upholding the grievance is
obvious: the collective agreement expressly contemplates that
: "innocent absenteeism" calls for compensation rather than the
'extreme penalty of dismissal. Article 51.1 is as follows:
Effective the first~day of April, 1978, an employee rrho is I unable to atten&to his duties due to sickness or injury is
entitled to leave-of absence with pay as follows:
(i) with regular salary for thefirst six (6) mrking days of
absence,
(ii) with seventy-five parcqt (75%) of regular salary for an additional one hundred and tmty-four (124) horkirg days of
absence in each calendar year.~
. . $1 ~_., _- $c- g, The above'is of course subject to other requirements
in Article 51 that the employee submit medical certificates in
respect of absences for more than five days or even shorter
absences if demanded by management. In general Ms. Jones com-
plied with those'requirements and Mr. Roberts does not challenge
the legitimacy of the certificates.
- 28 -
A third reason forupholding the grievance is that
the Superintendent did not do what had been done in other
cases: i.e. refer certain absentees to the Employee Advisory
Services' Branch for analysis or treatment. It has not been.
shown. that any other employee was ever dismissed or disciplined
in any way for excessive absenteeism --- 'even if due'to alco-
holism. Just why Ms. Jones was singled out for dismissal has
not been explained.
Mr. Roberts appears to have been irritated by what
he considered to be an uncommunicative
of the grievor. He thought himself ent i
nation than doctors' certificates. As
attitude on the part
tled to a better.expla-
Mr. Browne said in his
testimony: "Sometimes management would
than can legally be required."
like more information
I)
It is clear that the,grievor was embarrassed by the ._,, .-
natuf;e of.her personal problems and most reluctant to discuss
them with others. Indeed, she seems to have had no realistic
assessment of herself until shk began‘-listening to Ms. Cl.arke.
Significantly, the latter said their discussions tended to
focus on personal relationships rather than her job. The
,::, ;.... *
- 29 -
.‘.‘. :
,,..
:dm.
:.>r L: .,
*-: ;;I!
.::; .I:i.
.., _,.
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.:...
griever's mental health might have been better if she had g iven
less thought to the former and more thought to the latter.
Finaily, our view is that the Superintendent acted
with undue haste when he suddenly decided on or about October 1
to dismiss the grievor. It was inconsistent with his statement
in a letter to her on August 30 (only one month before the
dismissal) that "the present requirements for you to provide a
dqctor's certificate for each sick absence..:.. will be extended
to December 31st, 1982." Moreover, 'there is not an iota of
evidence that she was ever warned --- orally or in writing ---
that dismissal would result if she continued to take sick leaves.
An employee facing dismissal fork a protracted course of conduct
deserves at least one warning.~ The Superintendent's letters and
admonitions merely c,aused distress and resentment; they did not
amount to warnings that dismissal might ensue.
%+ y 2 !- d It is easy tp understand that the Superintendent can
be frustrated or exasperated by the expense and inconvenience
of absences in excess of the average.' Nevertheless,' that-is
no excuse for ignoring the plain meaning of Article 51 in the
agreement --- or overlooking the fact that some absences
inevitably exceed the average.
- 30 -
This decision is that the grievor shall be reinstated
as a Correctional Officer -2 at Maplehurst as soon as one of
her physicians certifies that she is fit and able to return
to work.
Further, the grievor is entitled to sick pay under
the provisions of Article 51 up to a total of 124 days, in-
cluding those days prior to October 1 on which she took sick
leave. It would appear that under Article 51.3 she is en-
titled to another six days of pay in 1983. Thereafter, since
her dismissal was without just cause she ,is entitled to full
pay to the day of her reinstatement, but not after September
15, 1983 if her physician does not prior to that date certify
that she is fit and able to return to work a proviso which
doesn'taffect her right to reinstatement: We retain juris-
diction to determine any problem in implementing this '
decision and will hold a further hearing if either party so
-- . .
I
r5quests the Registrar.
-$q _ '-" -- ..c 8
a' ,/
,DATED at Toronto this 2nd day of
August, 1983.
I ‘V’
E. B. Jolliffe, Q.C. _
- Vice Chairman _
"I concur"
L. Robbins, Member
7: 3100 7: 3210
‘7: 3240
7: 3542
EBJ:sol
"I dissent" (see attached)
P. D. Camp, Member
.,. it I
. . .
DISSENT (Jones, 537/82)
I am unable to agree with the majority award for the following
reasons :
1. Based on a comparison between the grievor's record of
absenteeism and the average figure for all C.O. 2'6 at the I'
institution during tbe &me period, the majority have concluded
that the grievor's absenteeism wasnot excessive. liowever, in
making this comparision, the majority chose not to take into
account a period of absence of "about 33 days" on the pa&t ;f
the grievor due to her hospitalization and subsequent
treatment on an outpatient basis in 1981. Including these 33
days increases the griever's overall absenteeism between
October 12,‘1979 and September 25, 1982 from 55.5 to 88.5
days; i.e. an increase of just over 59%.
In my view, there is no valid reason for excluding these 33
days of absence from consideration. Tbe reasons for the
grievor's absences were not in dispute - the employer
acknowledged that her absences were legitimate or "innocen?".
The issue between the parties concerned the amount of
0
-" _- absenteeism and the effect that it was having on the I
0' fundamental employer-employee bargain, i.e. the perfozzanca ,A
of work for the payment of wages. Surely in these circumstances -
it is not open to my colleagues to only count some of the .
grievbr's absences. It should be noted, as well, that
the effect of the majority's unfortunate decision to set
aside these 33 days is~compounded by the almost certain fact
that similar absences (i.e., absences due to hospitalization,
outpatient .treatment and so on) were included in calculating
the average figures for all C.O.Z's.
-2-
2. At page 27, the majority state:
"Our second ground for upholding the grievance is
obvious: the Collective Agreement expressly
contemplates that "innocent absenteeism" calls for
compensation rather than the extreme penalty of"
dismissal. Article 51.1 is.as follows:........
With respect, this suggestion that the parties'
Short Tern Sickness Plan serves to rule out termination of
employment on the grounds of "innocent absenteeism" simply
flies in the face of a great deal of case law. To cite but
two examples:
In Be U.A.W. and Massey - Ferguson Ltd.(l9691, ZO'L.A~;C!. 370,
arbitrator P.C. Weiler wrote the following regarding
innocent absenteeism:
II . . ..Because the relationship is contractual, and the
employer should have the right to the performance he is
paying~for, the employer should have the power to replace an
employee on a job, notwithstanding the blamelessness of the
latter. If an employee cannot report for work for reasons that
are not his fault, he imposes losses on an employer who is
also not at fault. 'To a certain extent; 'these'kinds'of losses
due to.innocent absenteeism must.beborne'by~the employer.
Bowever;aftera'certain stage-is'reached; the .accosmodation
of~the.'legitirmte~interests of both:employer:and'employee ,,
requires 'a 'pow er'of~justifiable~termination'in~'the former.
< II)
,-.A --
( Emphasis added) 1 a' and
In Be U.A.W., Iacal 397 and Barber - Ellis of Canada, Ltd.
(19681, 19 L.A.C. 163;(Schiffl, after considering the benefits
available to a sick employee under the collective agreement,
the arbitrator, referring to the sick benefits, stated:
”
. . ..I cennot hold that they exclude the power'of the
'Company to.~discharge or demote an employee when chronic,
sustained or spasmodic illnesses have prevented him from
attending his ;ob with reasonable regularity and there
is not foreseeable likelihood of any change into the future."
(Emphasis added)
I believe that an objective examination of the absenteeism
cases clearly reveals that, notwithstanding the existence of
a sick leave plan such as is provided for in Article 51,
the employer is not without a remedy where an employee is
/“’
-3-
.~..
, :‘.
.c
-._
repeatedly absent, even if there is a v-lid rearon for the
employee's absences.
3. The third reason givenby the majority for upholding the
grievance is that the employer failed to refer the griever
to the Employee Advisory Services Branch. This ground
blithely overlooks the fadt that the employer is not
obliged to do so. In other words, an employee has no
positive right to be referred to the Employee Advisory Services
Branch. Moreover, the majority decision hints that the grievor
may have been the subject of discriminatory treatment when
it states at Page.28: "Just why Ms. Jones was singled out
for dismissal has not been explained." In my view, in the
absence.of conclusive evidence which supports a finding of
discriminatory treatment such statements serve no useful
purpose and are better left unsaid.
4. Lastly, the majority state that Superintendent Roberts
acted with "undue haste" when he finally decided to dismiss
$1 the grievor. _.I _- Although the timing of his decision may have
d been somewhat at' odds with the ccntents of his P.ug~st 30
letter to the griever (part of which is quoted by the
majority at page 291, the record of-meetings, counsalling
sessions and correspondence ,set out on page 6 of the majority
decision attests to the fact that the Superintendent reached
his decision to dismiss the griever following several unsuccessful
attempts to deal with the grievor's absenteeism over a period
of approximately one and three-quarters years.
Based on the foregoing, I would not have upheld the grievance
as the majority have done.
.
-4-
In closing, I wish to express ny concern with respect to the
I a~nditions of reinstatelEnt set out by the majority. The terns of
rsinstatemsntaw~ by themajority go beyondmaking the griever
.j::s whole again. By awarding the grievor full pay following theex-
haustion of sick leave benefits, up to Septeder 15, 1983, while at
the same t3.m acknowledging that the e@.oyeeis presently unfit for
duty by stipulating that she notbe reinstateduntiloneofher
physicians certifies that she is fit and able to return to work, the
majority has in effect granted the grievor a sick leave benefit superior
to that available to snyotherbaxgainingtitemployes under the
parties' Collectivs Agreement.
91 ._., _-
a’ /