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HomeMy WebLinkAbout1983-0028.Muranyi.83-07-15IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD Between: Before: For the Grievor: E. Baker General Secretary Ontario Liquor Boards Employees Union For the Employer: Hearing: OLBEU (Joe Muranyi) Grievor - and - The Crown in Right of Ontario (Liquor Control Board of Ontario) Employer R. L. Verity, Q.C. S. D. Kaufman D. B. Middleton Vice Chairman Member Member B. Bowlby Counsel Hicks Morley Hamilton Stewart StOrie Barristers & Solicitors June 14, 1983 . I DECISION -- ! ‘. ..I_, In a vaguely worded grievance dated December 13. 1992, Joseph Muranyi alleged that he had been "disciplined without just cause". At the outset, the Ministry adopted the position that the instant grievance was not a d,isciplinary matter, and the real; dispute resulted from the Employer's decision not to excuse the Grievor's absence from work on December 2 and December 3. 1982. The Board permitted the Grievor to amend the Grievance Form at the Hearing to challenge the Employer's denial of the use of ; attendance credits or sick leave for the Grievor's absence on December 2 and 3. BY way of settlement, the Grievor requeste'd payment of monies lost wi th interest and "reinstatement of si:ck credit". The Grievor i s a Warehouseman 4 employed at the Kipling Warehouse in Toronto. For the two week period from November 29 to December 10, the Gri evor was assigned to work the afternoon shift from 4:00 p.m. to 10:00 p.m. That schedule was posted in the normal fashion two weeks in advance. At the time of posting the Grievor made the request that he be freed from his shift on December 2 and 3 for the purpose of attending a Union course on the evening of December 2. On November 29 the.Grievor again requested permiss'ion specifically from his Foreman. He was advised by the Foreman that . - 3 - his request would be granted if he was able to find a suitable replacement for the two shifts in question. In spite of numerous efforts to obtain a replacement, the Grievor was unsuccessful in that regard. On November 30, the Grievor attended a counselling session with management to review alleged mist,akes that he had made in his job performance during the month of,November. During that meeting the Grievor was questioned by management representatives concerning his success or lack thereof in obtaining a replacement, and was cautioned by Robert Alexander, then General Foreman of the Kipling Warehouse, that failure to obtain's replacement could attract disciplinary action. On December l,.the Grievor was presented with a letter dated November 30 (Exhibit $) which read as follows: , "Mr. J. Muranyi was called into the Assistant Supervisors office on November 30, 1982 in regards to the number of mistakes in checking which were from November 1, 1982 to the present, nine in all. .' Mr. Muranyi said he was doing his beit and felt if there were any blame it belonged to the new numbering system. This is in the presence of Mr. G. DeLuca and myself. John Bowser" The Grievor'worked his regular'shift on December 1, but did not report for work on either December 2 or December 3. In addition, he did not advise management that he would not be at work on either date. . - 4 - At the Hearing, the Grievor testified that he became emotionally upset upon receipt of the, Counselling Session letter. His evidence was that when he had time to appreciate the contents of that letter, he became so upset that he was forced to attenii the emergency department of a local hospital at 11:00 a.m. on December 2 and was given.tranquilizer pills to calm his nerves. The evidence is clear that the Grievor did attend the Union ;e!;sion on the evening of December 2. The following Articles of the relevant Collective Agreement I were cited: "ARTICLE VII - ATTENDANCE CREDITS 8.1 In this Article 'attendance year' means the period from the 1st day of January in a year to and incJuding the 3Jst day of December in the same year. 8.2 An employee is enti,tJed to an attendance credit of fifteen (15) days in respect of each attendance year at the commencement of each attendance year and such attendance credits will be added to t;lose accumulated by the employee. ; 8.3 An employee who commences his employment after the first regular working day of an attendance year is entitled, (a) to an attendance credit in days computed by multiplying by one and one-quarter (la) the number of whole months remaining in the attendance year calculated from and including the date of commencement of his service; and (b) where he commences his service after the first regular working day but not later than the tb<clfth (12th) regular working day of his first month of service, to an attendance credit of three-quarters (3/4) of a day in respect of his first month of service. . I 8.4 8.5 I 12.1 12.2 12.3 12.4 - 5 - An employee is entitled to'attendance credits under Article 8.2 in respect of a calendar month in which he is at work or on leave-of-absence with pay for at least one (1) full day. Notwithstanding the provisions of Article 8.4, an employee is not entitled to attendance credits,under Article 8.2 in respectof a month in which the employee is absent from work, (a) without leave; (b) by removal from employment for cause; or (c) without pay for the whole calendar month." "ARTICLE XII SICK AND ACCIDENT LEAVE Except as herein provided no employee shall receive pay for absence caused by sickness in excess of his accumu- lated credits. Where, after having servedone (1) year, an employee is absent by reason of sickness for a period in excess of his accumulated credits, any credits the employee has accumulated for overtime and for vacation leave of absence shal.1 be applied to the employee's deficit of attendance credits. An employee ,may,be granted pay for not more than thirty (30) days of excess absence and any payments in excess of credits shall be charged against the future credits to which the employee becomes entitled, and any unpaid balance shall be deducted from the amount paid the employee or the employee's personal representative under Article 19. After five (5) days absence caused by sickness, no leave with pay shall be allowed unless a certificate of a legally qualified medical practitioner is forwarded to the Boards certifying as to the nature of the sickness and that the employee is unable'to attend to his official duties. Notwithstanding~this provision, the 8oards.may require an employee to submit the certificate required hereunder in respect of a period of absence of Jess than five (5) days. - 6 - 12.5 12.6 12.7 12.8 12.9 primarily Where an employee is absent from work by reason of a condition for which the Workmen's Compensation Board assumes liability the employee shall be eligible for Compensation Leave for a period not exceeding three (3) months or a total of sixty-five (65) working days where such absences are intermittent for each unrelated claim. During such leave the employee shall receive full salary with no reduction of accrued credits but vacation and attendance credits shall continue to accumulate during the period. Where an award is made under the Workmen's Compensation Act to an employee that is less than the regular salary of the employee and the award applies for longer than the period set out in Article 12.5 and the employee has accumulated credits, the regular salary may be paid to the employee and the difference between the regular salary paid and the compensation awarded shall be converted to its equivalent time and deducted from the employee's accumulated credits. An employee to whom Article 12.5 or 12.6 applies is not entitled to be in receipt of compensation from the Workmen's Compensation Uoard in respect of the absences covered by these articles. Where an employee receives an award under the Workmen's Compensation Act, and the award applies for longer than the period set out in Article 12.5 and the employee has exhausted all accumulated credits, the employee will be considered on leave without pay. The Sick Credit'Pool Plan established pursuant to an Arbitration Award, dated April 4, 1979, shall be adminis- tered in accordance with the Letter of Agreement agreed to on February 29, 198Cl." On behalf of the Grievor. the Union based its case on the rationale of the celebrated 1965 KVP Award I of Robinson, C.C.J., 16 L.A.C. 73 in the application of rules and regulations unilaterally imposed by employers. That Award addressed the issue of 'the necessity of employer rules being clear and unequivocal, and brought to the attention of the ., ,. ‘. . - 7 - employee, and notificati on to the employee that a breaih of such rule could lead to disciplinary action. The Union introduced evidence that no policy or rules had been reduced to writing which required an employee to call in when unable to work. This Board is'of the opinion that the KVP Award has no application to the facts of the instant Grievance. The rationale of the KVP Award applies to discharge cases and by inference to discipline cases generally. We are of the opinion that the Mini without permi response. to estab In the instant Grievance, the onus is on the Gr ievor lish that he was sick if he,is to be paid for his stry's refusal to pay the Grievor for his absences ssion on December 2 and 3 was not a disciplinary two I day absence. The Grievdr's evidence in that regard falls far short of discharging the onus. It is somewhat difficult to accept the Griever's testimony that he became ill on December 2 when he fully comprehended the contents of the Ministry's Counselling Session letter. In our opinio,n that letter was innocuous and carried with it no disciplinary connotation. The medical certificate presented at the Hearing by the Grievor (Exhibit 3) is of no probative value. That certificate was prepared by a medical practitioner on December 6, 1982 who had no previous exposure to the Grievor, and it is understandable - 8 - . . . that that certifica of the Grievor's al t 1 e contains no i nformation as to the nature eged medical pr oblem. On the evidence, we are unable to find that the Grievor qualifies for either sick pay or attendance credits. Accordingly, this Grievance DATE@ at Brantford A.D., 1983. s dismissed. IOntario, this 15th day of July, Vice Chairman S. D. Kaufman w . . sad- iI. B. Middleton MembcT 8: 3125 8: 3300 7: 4000 7: 3230