HomeMy WebLinkAbout1982-0611.Paolo.83-12-14611/82, 612/82 & 613182
IN THE MATTER OF AN ARBITRATION
Under x
THE CROWN EMPLOYEES COLLECTD’E BARGAfN1N.G ACT ‘. :t;’
Before
THE GRIEVANCE SETTLEMENT BOARD
Between:
Before:
For the Crievor: R. Nabi
Grievance Officer
Ontario Public Service Employees Union
For the Employer: N. Robinson
Staff Relations Officer
Civil Service Commission
Hearings:
:_
June 8, 1983
August 30, 1983
OPSEU (Raffaella Paolo)
and
The Crown in Right of Ontario
(Ministry of the Solicitor General)
G. Brent
R. Russell
D. Wallace
Vice Chairman
Member
Member
Griever
Employer
9”
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i : DECISION
There are three’grievances bef>re the Board. They have certain
facts in common which will be summarized before the grievances are dealt
with. There were preliminary objections raised by ‘the Employer and
_
those objection-s will be dealt with in the context of the grievance to
.which they relate.
Facts
The parties agreed on certain facts which they presented fo’the
Board as a Statemnt of Facts (Ex. 4) which is re’produced below:
(: 1. MS. Raffaella Paolo is an employee of the
Regissration Branch of the Ontario Provincial
Police, in the Ministry of the Solicitor
General.
.2.
3.
i.
4.
5.
b-.
7. . .
Mrs. Paolo was employed in a position enti tied
Word Processing Typist and classified as
Typist 3.
In a memorandum of September 7, lyZ32 to the
Branch Director, relie~v$~h~...of her Ms. Paolo requested to be
duties respecting the
operation of a video.display terminal (vord
processing equipment).
On September 7, lYt(2, Inspector J. F. Simmons,
Deputy Director of the Registration Branch
informed her that as of that date she would
not be required to perform duties on the word
processor, and that the Branch would attempt
to arrange an assignwnt to another position.
On September lU, lYd2, Inspector Simmons
advised Mrs. Paolo that there was no Typist 3
position, available, but that there wa.s a’
Clerical Typist 2 position in the Firearm.s
Section.
On September 13, 19ti2 Inspector Simmons asked
Mrs.~, Paolo if she was going to accept the
temporary assignirrnt to the position offered.
Mrs. Paolo neither accepted nor ke’fused the
assigmnt.
M.L-S. Pa010 left work on the morning of
Septembei 13, 1Y&2 and was absent until her .:
i .i
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a.
9.
10.
11.
<’
12.
13.
14.
(, y,..:. 15.
&turn to wo’& November i, 1982. .
On September 16, ‘1982, a note on the
stationery of Dr. Joseph Dilisi dated
September 13, 1982, Was received at
Registration Branch.
This note stated that ‘Mrs. Raffaeila Paolo is
under my care and will not .be able to work for
about 6 weeks. v
On November 1, 1982, Mrs. Paolo returned to
work.
.
At 11:20 a.m. on November 1, 19&2,
Superintendent W. 8. Rajsic met with Mrs.
Paolo and offered her a temporary assignment
to a Clerical Typist 3 position in the License
Processing Office.
At 1 p.m. on November 1, 1982, Staff Sergeant
Stroud, Deputy Registrar of the Registration
Branch received a “grievance”at stage one -
now nuhbered (GSB) 612/&Z.
On November 5, 1982 the grievance numbered
611182 was submitted.
On Npvember 9, 1982, Mrs. Paolo was advised by
Superintendent Hajsic that the Branch believed
tnere had been an improper use of sick leave
benefits, that therefore Mrs.Paolo was
incorrectly paid for the period September 13,
,:I982 to .h%vember 1, 1982, and that
Superintendent Kajsic was authorizing an
adjustment in payroll for a full repaymnt.
on November IO, 1982, Mrs. Paolo submitted the
grievance numbered (GSB) 613/82.
Although it is not stated in the agreed facts, it is common ground
between the parties that the griever was pregnant at all material timers,
and that the request to be removed from her work at the Video Display
Terminal (VDT) was motivated by her concerns regarding the effect of
radiation from the VDT on her unborn child. The Employer, Knowing of
her pre’gnancy, removed her from the VUT as ‘requested.
Paragraph 4 of ,the Statement of Facts refers to a meeting on
septerdb+r 10, lY82. During that meeting the griever expressed concern
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about the fact that the position she was being offered wasat a lower
rate of pay than that which she was receiving in her present position.
We find that in September the Employe; made a reasonable effort to find
a comparable job for the griever which would result in no loss in
earnings to her, but was unable to do so because of circumstances beyond
its control.
Paragraphs 5 to 7 of the Statement of Facts refer to a meeting
between the griever and Inspector Simmons on September 13th. We find
!
that in the course of that meeting both the griever and~Inspector
Simmons became upset. Among other things, there was a dispute
concerning the money which the griever claimed she should receive when i.,,-,r
removed from the VDT job. The griever insisted on having a Union
representative present. The meeting broke up with the griever leaving
_~..
the office cryingand in an upset condition, and then going to see the
doctor who had been her family doctor.
The griever went to the doctor’s office and was examined by him.
She testified that s& told her doctor that her boss had screamed at her
qver a dispute conerning the VDT, that she was frightened because of the
i. things which she had read about VUT’s, and that there was the threat
tnat she would have to stay on th,e:VDT if she did not take what was
offered to her. Following the examination, the doctor gave the griever
the~note referred to in paragraphs 8 and 9 of the Statement of Facts.
Before proceedingany farther, we should state that, while we do not
doubt that the griever told the d&tor that there was a’threat that she
would have to stay on the VUT, and while VL’ can accept that the griever :.
.
was upset and believed that such a threat existed, we can find no
evidence ‘that there was such a threat. The Employer removed’the griever
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from her VDT a+soon as she requested the move aftpr she said that she
was pregnant. All of the Employer’s actions were consistent with
honour+ng herJrt?quest to be moved, and there is no conduct which- would
lend weight to the suggestion that she was under any pressure by the
Employer to remain at the VDT a@.inst her will.
The griever has been employed by the Employer since 1979. During
all of that time she has also had a part-time job in a drug store. The
Employer was informed of the other job by the griever when she was hired
and has never raised any objection about.her continuing to hold it. The
griever continued to work at her part-time job while she was absent from
work from September 10 to November 1, 1Ya2. She normally worked ant the
drug store on Tuesdays for 2 112 hours and on Thursdays for 3 l/2 hours.
Uuring the period that she was absent from work, the hours she worked at
the drug store were as follows (Ex. 6j:
Received sick pay.- 6 hrs - Week ending
Sept. ia, 1982
Sept. 21182
Sept. 23182
Sept. 27182
Sept. 29182
Oct. 5182
Oct. 7182
wt. 11182
Oct. 19182
Oct. 21/dZ
Oct. 2b/82
act. 28182
wt. 3u/a2
-
2 112 ‘hrs work
3 l/2 hr5~work
2 l/2 hrs work
‘2 l/2 hrs work
2 I/2 hrs work.
3 l/2 hrs“work
2 l/2 hrs work
2 II2 hrs work
3 l/2 hrs work
2 112 hrs work
3 l/2 hrs work
6 hrs work
Kate of pay - $>.4Y per hour.
Toward the end of Octoo;r the Employer discovered that the griever
had been working at the drug store duiing h&r absence. She was
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confronted with that information sometime after she returned to work.
There are additional facts which are relevant to the particular
grievances. Those facts will be set out when the grievances are dealt
with. The grievances will be dealt with in chronological order.
Grievance 612182 Dated November 1 1982 1-
This grievance (Ex. 2) reads as follows:
I grieve that on September 13, 1982, the conduct of
my Deputy Director was such that caused me to
become. ill to the point that my Doctor took me off
my job for a period of 7 weeks.
SETTLEMENT REQUIRED
Payment in full for the period with no loss of
benefits.
This grievance was filed when the griever returned to work and
before she learned that the Employer was taking the position that she
was not entitled to sick leave. Acordingly,.at the. time that the
grievance was filed she was under the impression that her absence would
be treated as sick leave. ,.-
The essence of the allegation is that Inspector Simmons caused the
griever to become so upset that he was the precipitating cause of her
illness and of her ensuing absence from work. Aside from arguing that
the collective agreement was not breached, the Employer has also taken
the position that the’ grievance is untimely pursuant to Article 27.2.1’;
which imposes a mandatory twenty day time~‘limit from the time that the
person first becomes aware of the complaint. .-“’
We have read and considered the authorities cited to ~5 by counsel’
for oath parties. We propose to deal with the issues raised as-
expeditiously as poqsible and without going into a great deal of detail
concerning the arguments and author! ties raised except where absolutely
i
The parties agree that the time limit in Article 27.2.1 is
mandatory. We tend to agree, however, that the essence of the grievance
is that the absence should not be regarded as sick leave, and that the
griever a~y not have known that for sure until her return. to work when
she was asked to fill out an absence report for the payroll department.
There fore, we believe that the grievance can be considered to be timely.
Be that as it may, we agree that the grievance does not disclose
any violation of the collective agreement. The natural conclusion for
c the Employer to have reached upon receiving the doctor’s note is that
the griever waS ill and that she should be considered to be absent on
sick leave. There was no application for any other type of leave. The
reasonable action was’ to tre’at her absence as due to illness. There is
nothing in the collective agreement to which we were referred.which
would give the griever a~ right to claim that, under the circumstances,
this absence should not be treated as sick leave. .
Even accepting that the griever became upset after her di~scussion
with her superior and that this caused her upset state, which in turn
caused her doctor to order her to stay away from work, there does not
! appear to oe any prdvision in the collective agreement which would
prevent this from being treated as sick leave. Given the claim thaLthe
griever was ill, the Employer was certainly justified in treating .the
absence as sick leave.
We must accept tnat Artic’le 27.14 limits our jurisdiction in
respect toanyalteratidns in the collective agreement, and So-we can
not create rigllts where none east in the collective agreement (seem; for
example, Haladay 94178).
In conclusj on, therefore, even 1 f the grievance is considered to be I
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timely, since t,here has been no violation of the collective agreement 1 ’
alleged or established, the grievance is dismissed.
Grievance 611/82 Dated November 5 1982 1.
This grievance (Xx. 1 part) reads as follows:
I grieve in accordance with Article 27.5 of the
collective agreement. I have been denied
representation re: My grievance dated November lst,
1982.
SETTLEMENT REYUIRED
A written aacnowledgzment that I am allowed Union
representation and non-compliance with the terms of
the subsisting collective agreement cease
immediately. .r
Article 27.5 of the agreement is reproduced below:
The employee, at his option, may be accompanied and
represented by an employee representative at each
stage of the grievance procedure.
The Employer’s response to the grievance (Ex. 1 part) ‘sets Out the
following:
This will acknowledge your Grievance Form under
date of November 5, lY82.
I am not aware “.f ‘any discussions with you
re,garding your grievance dated November 1, 1982
where you were denied representation.
Shoulh a,ny, discussion take place with you regarding
any grievance duly submitted on a ‘proper form, you
will be allowed a repre,sentative in accordance with
Section 27.5 of the Collective Agreement.
The Employer’s response does not, as indeed it can not, deny that
the griever was entitled to Union representation during the grievance
procedure. The parties are therefore not in dispute concerning the
central right conferred by Article 27.5
The griever’s evidence discloses that she filed the~,,above grievance
because sne kept insisting to the Employer that she would not fill out
.’
the attendance report which payroll required because the way in which
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her absence wa‘s to be attributed was the subject of a grievance
(612/82). Her concern was that the Employer kept pressing her tom fill
out the form despite her grievance, and the Employer knew that she
wanted the assistance of her Union steward during the meetings when the
attendance form was being discussed. ~The evidence discloses that her
discussions-with the Employer were not part of the grievance procedure
in relation fo her grievance 612/82. While the Employer may have known
that the griever wanted the Union steward, there is DO requirement on
the Employer to honour that request, if made, and fu+er, the evidence
discloses that the griever had ample opportunity to seek, and in fact
did seek, the advice and counsel of her steward regarding the attendance
report before she filed it.
In view of the wording of Article 27.5 which speaks solely of the
grievance procedure, anh Ian view of the clear evidence that the, meetings
were not part of the grievance procedure at all, no violation of the
collective agreement can be found and the grievance must be denied.
Grievance 613/82 Dated November 10 lY82 ,
This grievance (Ex. 3 part) reads as follows:
I grieve that the letter of warning of November Y,
1982 is ba’sed on misinformation and-is unwarranted,
unJustified and unreasonable.
-.
SETTLEMENT REQU&ED
wi rndrawal of subjecr letter of warning and removal
of same if in my personal file.
The letter of November 9, lY~2 referred to in the grievance is
reproduced below (Ex. 3 part):
Rte : Letter of Warning
Improper Use of Sick Leave
A recent examination of the ciycumstances
surrounding ydur leave of absence from September 13
‘co November 1, lYX2, reveals improper u$e of~.sfck
~. leave benefits. e_
:
i 10
i
Since”it now appears that you were not entitled to
this benefit, and tiere incorrectly paid for this
periqd, I am authorizing an adjustment in payroll
for a full repayment.
Sick leave is exclusively for employees who are
sick and unable to attend to their official duties.
However, after you returned to work, I asked about
the nature of your illness, and you stated that it
was because you were “upset” following a discussion
with Inspec tar Simmons. This is not sufficient
cause for a 7-week absence on sick leave pay.
I have since learned.thst you undertook a move of
your personal residence and were employed on a
regular part-time basis at a Boots Drug Store
during your absence with pay. When asked about
i this employment, you claimed to have worked at, the-.
store one day during your absence. In fat t; ‘YOU
worked on thirteen separate occasions.
In future, you will be expected to provide a
complete explanation for any leave of absence taken
wi til pay. I trust that any future request for sick
leave benefits will be claimed for legitimste
sickness only.
..~
The first issue to be de~termined is whether the Employer’s action
was disciplinary In nature. In order toll,#e:te,rmine this it is necessary
to consider exactly what the Employer did. As far as we can determine
the Employer had already paid the griever according to.the sick leave
provisions in the collective agreement. The above letter states that
i x.. the Employer is not satisfied that the grievdr has met the requirements
for sick leave payments under the collective agreement and concludes
that the payments to her were made without justification and will beg
recovered. The letter does not require the griever to’submit a medical
certificate for every absence which she may take in the future.
In Naik (Taharally) lU8/77, at page 4, Professor Syinton made the
following comments about a “letter of warning”:
. . . The letter can indeed be characterized as a
“warning” by the employer to the grfevor, for it
contains clear instructions that she should change..
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her conduct~or expect dnfavourable consequences.
The &rning is not disciplinary in nature; however,
for its purpose is only to provide guidance to the --
employee as to the scopeof acceptable conduct, as --- the references to futuc action and guidance
demonstrate. Furthermore, Mr. Pitkin, for the
employer, stated at the hearing that the .letter was .‘~
only intended as criticism of the griever and not
intended as dscipline.
As the Cloutier case and the cases cited
therein make clear, one can not characterize every
communication from an employer to an employee as
disciplinary-action. Only if the warning will have --
d prejudicial effect on the employee’s position in -- future grievance proceedings, in the sense that it --- --
is being used to build UJ 5 record against the --- employee, can it be characterized c disciplinary --- action. E conclude otherwise would be to allow an ~-----
employee to grieve any communication which he -- believe tobe unfounded, with unfortunate results -- for the grievance procedure and for the employer ---
,‘tyi n.g t: give guidance fo s employee wi thout
@g~ngg formal disciplinary action. . . . . .
IEmphasis Added]
In this case the Employer’s response to the grievance (Ex. 3 part)
clearly stated chat the action was not disciplinary “‘but rather
advises.. .that you were not entitled to benefits provided in Article
51’: There is no evidence to suggst that the letter was being used to
‘build up a record” against the griever.
It is our view that the action taken by the Employer is not .-;..j~
disciplinary in nature but that it can be characterized as serving the
following purposes only:
(a) It informs the griever that the Employer considers that her
claim for sick leave benefits is not warranted-and that she is not
entitled to receive the benefit.
(b). It informs the griever that the Employer intends to recover
the money which it pAid her since she was not entitled to receive the
payment.
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(c) It te+ls her that in the future she must fully explain all
absences and expresses the hope that all future sick leave claims will
Only be fOf legitimate sickness.
Given those purposes and the Employer’s position taken in the
response to the griewnce, we repeat that it is our conclusion that the
letter and the action taken was not disciplinary in~nature. It is our
view that the Employer’~s response to the giievance in which it states
that the letter was not intended to be disciplinary would be a complete
anSwer to any attempt which anyone may make to use the letter as part of
the griever’s disciplinary.~record in the future. We consider the letter
to be one which.informs the griever of the Employer’s position regarding
her absence and the money paid to her during her absence. We do not
consider it disciplinary or contrary to the collective agreement to
advise an employee that sick leave benefits should only be claimed for
absence due to legitimate illness.
One issue-which we also must deal with concerns the Employer’s
. . ..-.r.
objection to the claim that, should this grievance succeed, the grievoi’
would be entit1e.d to compensation for sick leave benefits on the ground
that there is no claim for the return of money in the Settlement
re qui re d. In dealing with grievances we muSt be careful not to hold
‘grievers to a level of drafting which exc’eeds the expertise of the ”
._
“employee iti‘ the street”, while St the same time ensuring that the
Employer is not prejudiced by being confronted with a matter which was
._
not considered to be part of the grievance. In this case we are dealing
not just with by one grievance but by a series of grievances, a~11 of
which deal in one”way or anothir with the griever’s claims concerning
her absence from work. In the context of all of the grievances, it IS
clear that the!grievor was never atundoning her ~1311~ that she should be
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paid for her absence. There was a dispute concerning whether the
absence should be considered sick leave (612/82), but she never took the
position that she was entitled to nothing.. Given all of those
circu”sta”ces, we would consider that, should ‘this grievance succeed,
the natural result which would flow would be a return to the situation
regarding the griever’s sick leave which existed immediately prior to
the writing of the letter in dispute. That would naturally entall a
return of money to t&.grievor si:nce it would be illogical to find that
/ there was no basis for disallowing he,r sick leave claim while saying
that she could not recover the money deducted from her pay. We are
therefore prepared to consider this grievance as implicitly requesting a
return of moneys deduc’ted from the grievor.
The oasis ,of the Employer’s complaint, as set out,in the letter, is
that the griever was not properly enti,tled to receive sick pay benefits.
-.
Le~avi’ngaside the question of the adequacy of the doctor’s letter for
the time being, It is clear that the note sai~d that the griever was
unable to work for six weeks (see’ paragraph 9 of the Statement of
Fat ts). A reasonable interpretation of such a statement‘would be that-
i the griever was not able to work at all. Assuming that the Employer
accepted the doctor’s note at face value, it certainly questioned the
note in a timely fashion once it learned that the griever was
continuously employed in her part-time job during her absence. Wecan *’
not question the actions of an employer who, upon discovering that an
employee who supposedly is not able to work has been employed elsewhere
during her absence, deciaes to question the absence. In such a
si tua ti on, where the note states one thing and the griever’s actions
apparently indicate tnat the note was not correct or not to be taken at
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face value, the;-Employer is entitled to question the basis on which It
made the sick leave payments.
There is no evidence to indicate that the griever ever provided~~the
Employer with a satisfactory explanation concerning the discrepancy
between the note which she was using to justify her absence and her
actions. Such an explanation might have been provided by supplying the
Employer with further information from her doctor. Nothing was done to
satisfy the Employer’s legi timate concerns.
Even though the doctor’s note is one which a reasonable Employer
-would be justified in considering to be inadequate, there .may have been
some merit to the claim that the Employer had in fact accepted the nbte
and had forfeited its right to question it, were it not .for the fact
that the Employer acted after learning that there was an apparent
contradiction between the note and the griever’s actions. Under the
circumstances, we do not consider that the Employer should be estopped
from raising the question of the adequacy of the note or from
questioning the reasons for the griever’s absence.
There is no evidence before us other than that the griever was
upset by her encounter with her superior. While we can accept that. she
was upset and that she may have had to miss some work as a result of
being upset, there is absolutely no explanation as to any medical
justification for such a lqngabsence. The griever never offered any
e~xplanation other than that she was upset. tier work at. the drug store
>*a.~
certainly indicates that She was not so’upset chat she was incapable of
working. We do not know upon what information her doctor was acting
wnen he gave his opinion and we agree with the authorities to the effect
that we cannot accept the medical certificate as a complete
just-ification for her absence [see, for example Ke Ford Motor Co. of, -__~--
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!
:
Canada Ltd. and Unl ted Automobile Workers, Ldcal 1520 (1975), 8 . -- --
L.A.C.(Zd) 149 (Palmer)j.
It is therefore our conclusion that the Employer was justified in
questioning the medical certificate under the circumstances,. and that,
under the circumstances, its conclusion that the sick leave claim was
not prqper was also justified. We accept the authorities cited to us
that rhe Employer can recover the money which it had paid to the griever
in error.
(. For all of the reasons set out above, therefore,‘the grievance is
dismissed. In dl smissing the grievance, we would II ke to reiterate that
the letter which was sent to the griever is not disciplinary and will
not form part of her ‘disciplinary recprd. We should also note that,
- since the Employer has not accepted that the griever was absent on sick
&eave,‘.we would %st that if there has been any use of credits pursuant
to Article 51.6 they should be restored to the griever’s account.
DUED AI LONIYJN. ONT~IO~THIS 14th: : DAY OF December , 1983.
(, . . .
G. Brent, Vice Chairman
.L
“I dissent” (see attached)
R. RcsSell, hiember
.’
D.A. K’allace , Member
.~
DISSENT.
After carefully reviewing the Chairwoman’s award, I must
respectfully ~decline to concur in her findings and in turn I submit this dissenting
opinion.
(:
Basically my differences with the Chairwoman have to do with the
right of the management to take back the sickpay money paid to the Griever and
the reasons stated by the Chairwoman as justification for the management’s action
in this matter.
My major difference with the Chairwoman turns on the question of
ONUS. -.
..~. The matters to be dealt with by the Board of Arbitration are; legal -
i..
medical - .emotional and moral, and it is my opinion rather than give the
managements an “A” on all counts, they should be criticized for “taking the law into
their own hands”.
Consider for example management’s “Letter of Warning Improper
JJse of Sick Leave’;. Paragraph two concludes with this senten&:
.;_
This is not sufficient cause for a seven week absence
on sick leave pay.
Is this a medical opinion? The answer is NO, it certainly is not. Is it a legal
opinion? In my opinion it was mt, they we&or should have been estopped from
this action. And since the decision was made by the same people who created the
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emotional stress, their action was in~my opinion morally wrong.
Simply put the facts are this:
The Grievor having become pregnant became concerned for
her child to be born as a result of the kind of work she was
doing. She requested a transfer. Some difference between
her and the management arose as to (a) her wages on a
changed job and/or (b) in her mind whether they would give
her a different job. In my mind the evidence shows that the
griever was emotionally very upset as a result of her meeting
with Inspector Simmons and whether the Crievor should have
been given the samdhoney on a different job or not is not
the issue at this time: What is clear is that she was emotion-
ally and possibly physically and mentally upset. In any event
she went to her doctor immediately.
The doctor does not tell us his reasons in exhibit 5. He simply says
I the Grievor is under his care and in his judgement, will ‘not be able to work for six
,yeeks.
The Chairwoman in her decision says on page I3 says;
A reasonable interpretation of such a statement would be
that the Grievor was not able to work at all.
Perhaps in many situations the Chairwoman would be correct, but not ins the
specifics of this case.
..‘.
The Griever at no time attempted to deceive tile Employer. Th&
management knew all along that.the Grievor had a,second job. Her problem was
not with her part-time Employer. It~clearly was Mith her full-time Employer. She
went directly to’the doctor~from her’emplpyment at the Ministry. Obviously she
would explain her differences with the management, the doctor would of course
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note her emotional as well as her physical condition and it was clearly as a result
of the problems at the Ministry that the doctor said she will not be able to work (at
the Ministry) for about six weeks.
I believe that to be a reasonablk interpretaton .of the doctor’s note.
Again I must disagree with the Chairwoman where she sets out on
page 14 as follows:
There is no evidence to indicate.that the Griever ever provided
the Employer with a satisfactory explanation concerning the dis-
crepancy between the note which she was using to justify her
absence and her actions. Such an explanation might have been
provided b? supplying the Empldyer with further information
from her doctor. Nothing was done to satisfy the Employer%
legitimate concern.
It is with great respect I say that.this paragraph stands the matter
on its head.
The majority~-report go&:%% t&suggest that the doctor’s nqte was
possibly inadequate. Surely if the management had found it inadequate they had
more than enqugh time to raise this as an issue. Clearly, they found it satisfactory .._~
since it was not an issue.
The Chairwoman’s report recognizes that the Employer should be
estopped froni’iaising the adequacy of the note at a later date, except she says the
estoppel doesn’t prevail because;
. ..the Employer acted after learning that there was an
;+;Fa.ryt contradiction between the note and the Crievorls
l’his’is like trying to add apples and oranges. The doctor’s note had
nothing to do with the Griever’s second job. He may or may not have known about
it. What he did know was that her job at the Ministry was emotionally disturbing
and possibly there were other physical problems that caused him to write the note.
But it cannot be doubted that it was written because on September 13, 1982
Raffaella Paolo, his patient, came to him directly from work at the Ministry and
told him of her problems, real or imagined it’s not important. And it was
specifically for this he wrote the note.
This management action has acted unilaterally on their own without
a job or tittle of medical evidence. Although they have always known the Grievor
had a second job, they pretend they suddenly discovered after six weeks that she
was working there.
It is my submission that there is a heavy onus on the management.
1. If they had any doubt at any time about whether
Dr. Dilisi’s note was legitimate in any and every
way they should have either checked with him or
alternatively referred the Grievor to a specialist.
They did neither.
2. For the three years the Grievor worked at the
Ministry she had a part-time job and the Ministry
testified they~bew about her part-time job.
Therefore aP&y time within the six weeks the
‘Ministry could have and 1 belie.ve should have
checked to.Lxe if the Griever was working at
Boots, her part-time job. They didn’t do this
or take any other normal steps in such circum-
stances.
It is my view that the Management did NOT have the right, neither
legally nor ethically to deduct the wages paid to the Grievor as sick leave after she
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returned to work on the grounds that she wasn’t really sick. It is their word against
the medical profession’s word. The management had an onus to prove by medical
or some other means outside the Ministry that the Grievor was not entitled to that
money. They did not do this.
In my opinion the claim of the Griever for sick leave was fully
warranted and that the sick pay which was later deducted from her regular wages
should be restored to the Grievor in full.
Toronto, Ontario
December 5, 1983
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