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HomeMy WebLinkAbout1983-0050.Orprecio.83-07-25Between: Before: IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD For the Grievor: For the Employer: Hearing: OPSEU (Andres B. Orprecio) Grievor - And - The Crown in Right of Ontario (Ministry of Health) Employer J.W. Samuels Vice Chairman I. Thomson Member A.G. Stapleton Member G. Richards Grievance Officer Ontario Public Service Employees Union S. Asselstine Regional Personnel Officer Ministry of Health June 22, 1983 The grievor claims sick pay for a period when he.was off work in early 1982. The Ministry treated most of this time off as an absence without leave, and gave the grievor ,a written reprimand. The essential facts were agreed by the parties as follows: 1. February 16, 1982. Mr. Orprecio went to his Department Head Mrs. 0. Shaver and verbally requested a leave of absence without pay for the period of March 8, 1982 to March 28, 1982 for the purpose of visiting his father in the.Philippines. Mrs. Shaver advised him that since other f staff had been granted leave o~ffabsence prior to his request that it was unlikely she would be able to approve his request. She did however, provide him with a leave of absence form and told him to submit the request in writing for further review. 2. .February 17, 1982. A written request (Exhibit 1) was received by Mrs. Shaver advising that the purpose of the leave was to visit a very ill father who was eighty-four years of age. Mr. Orprecio advised G. Boyd that his brother was checking for flights out of Toronto to the Philippines. 3. February 18, 1982. Mr. Orprecio verbally advised G. Boyd, Assistant Hospital Housekeeper that due to the flight schedules he would require three more days of leave to March 31, 1982. 4. February 19, 1982. Mrs. Shaver replied in writing advising that she had carefully considered the request and would grant one week of leave without pay from March 8 to March 12 (Exhibit 2) 5. February 22, 1982. Mr. Orprecio wrote to R.B. Thomson, Hospital Administrator requesting that Mrs. Shaver's decision to grant one week leave be extended to eighteen days. (Exhibit 3) 6. February 23, 1982. R.B. Thomson replied in writing to the effect that he would not interfere with the Depart- ment Head's authority to make~decisions concerning depart- mental work requirements. (Exhibit 4) Mrs. Shaver contacted S. Asselstine concerning Mr. Orprecio's rights $0 leave without pay. She was advised that the right was .discretionary and it was her duty to consider the needs of the organization when considering such requests. She was also advised that she should grant such leave in a reasonably consistent way and that if employees with similar circumstances to Mr. Orprecio had been granted two weeks leave, he also should be given two weeks providing the staffing situation would make it at all possible. I. February 24, 1982. Mr. Orprecio approached his super- visor John Horrocks and handed him Mr. Thomson's reply and said he was going home sick. Mr. Horrocks advised Mrs. Shaver of this event and she told Mr. Orprecio that if he -4- went home because of his dissatisfaction with Mr. Thomson's decision, he would be considered as leave without pay. Mr. Orprecio told Mrs. Shaver that under the collective' agreement she had to grant time for an emergency. Mrs. Shaver explained that the collective agreement does not require her to grant such leave as her primary responsi- bility is to the hospital and the patients. 8. February 25, 1982. At 2200 hours (1O:OO p.m.) Mr. Orprecio advised his supervisor that he was sick and then went home. Mr. C. Lockwood, Union President called Mr. Allardyce to ask that the full~.leave be granted as Mr. Orprecio had already paid one thousand for his air fare that was not refundable. Mr. Allardyce replied that the staffing situation would not permit further leave. 9. February 26, 1982~. Mr. Orprecio called Mrs. Shaver at 15.05 hours (3:05 p.m.) and advised he was 'at a medical clinic. When asked what seemed to be the problem, he said , he would not know until he saw his doctor. At 1712 hours (5:12 p.m.) Mr. Orprecio appeared at the hospital switch- board and paged John Horrocks, the supervisor on duty. When Mr. Horrocks appeared he handed him what he called an official letter and informed him that two copies were given to the union. (Exhibit 5) 10. March 1, 1982. When Mrs. Shaver reported for duty she found a medical certificate dated February 26, .1982 for Mr. Orprecio on her desk. Mr Orprecio did not report for duty. (The note from the grievor's doctor read: "To Whom It May Concern: This is to certify that I have examined Mr. Andres Orprecio today and found him suffering from anxiety' and depression, mainly from worrying about his very sick father in the Philippines. I have suggested to him taking four to six weeks sick leave, to rectify this nervous reaction as soon as possible. I have put him on sedatives and antidepressants at this time.") 11.. March 2, 1982. G. Boyd delivered a letter (Exhibit 6) to Mr. Orprecio's home advising that a second week of leave .-~ without.pay had been granted and that the medical certificate did not substantiate coverage under the short term sickness plan. The letter was given to Mr. Orprecio's eighteen-year- old son who said he would give it to his father when he came in. 12. March 8, 1982. Mr. Orprecio contacted the Personnel Office inquiring as to his benefits and saying he would be away until April 5, 1982. He also contacted the Payroll Office advising that his wife would pick up his March 11, 1982 pay cheque as he was leaving early that morning for his trip home. 13. March 9, 1982. A second memo was delivered to the home of Mr. Orprecio and was handed to Mr. Orprecio. (Exhibit 7) (This note read: -6- "Hospital Policy 9 states that, 'After 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 department certifying that the public servant is unable to attend to his official duties.' AS advised in my memorandum of March 2nd, 1982, your medical certificate does not meet the standard for paid leave as defined in the hospital policy. Further you are aware of your responsibility to report your absence daily until an acceptable medical certificate is provided. As you have not contacted my office to report your daily absence, you will,be listed without payI effective March lst, 1982. Your approved Leave of Absence, without pay, will be March 8th to March 19th, 1982. ") 14. March 24, 1982. Mrs. Shaver telephoned Mr. Orprecio's home-and a person identifying himself as Mr. Orprecio's son said his father was in the Philippines and he did not know when he would return. 15. April 5, 1982. Mrs. Orprecio called and advised that her husband was coming home around 9:00 p.m. that evening and s.he would make every effort to have him report for work the next day. 16. April 6, 1982. Mr. Orprecio did not report for duty and did not contact his supervisors. A call was made to his home by Mrs. Shaver and Mrs. Orprecio said her husband was sleeping and would call her the next day. 17. April 7, 1982. Mr. Orprecio called to say he~would be returning to work on April 12, 1982. 18. April 8, 1982. Mr. Orprecio went to see his doctor to get a medical certificate to cover him to April~12, 1982. -7- Mrs. Shaver wrote to Mr. Allardyce recommending that Mr. Orprecio be given a five-day fine for insubordination. (Exhibit 8) Mr. Thomson substituted a written reprimand for recommended fine. (Exhibit 9) 19. April 13, 1982. Mr. Orprecio returned to work and provided the medical certificate given to him on April 8. (Exhibit 10) (The note from the grievor's doctor was on a standard form headed "Medical Absentee Certi- ficate" and said that the grievor had been in the doctor's care since February 26, 1982, and could ~return to work on April 12, 1982. The * doctor remarked "Nervous exhaustion, Depression...") 20. April 22, 1982. Mr. Orprecio called Mrs. Shaver to inquire as to why he received only $51 on his cheque. He was advised that the memo of March 9, 1982 was very clear that if he did not return to duty by March 22, 1982 he would be absent without leave and he therefore could not be paid for the period of March 1, 1982 to April 12, 1982. 21. Treated on Leave of Absence from March 1, 1982 to April 13, 1982 without pay and was required to contribute $96.42 for premiums. (Exhibit 11) In brief, in mid-February 1982, the ~grievor requested three weeks off to go to the Philippines to see his dying father. He was offered two weeks leave without pay. This was not satisfactory for him. On February 26, he tient to see a physician, who gave him a letter suggesting four to six weeks of sick leave to help rectify a nervous reaction, caused primarily by the grievor's father's illness. The.grievor was off work from February 26 to April 13, and in that time was abroad in the Philippines from around mid-March to April 5. On April 8, he again attended at his doctor's office and got a certificate saying he could return to work on April 12. He did' return on April 13. The Collective Agreement provides: Article 51 - Short Term Sickness Plan 51.1 An employee who is unable to attend to his duties due to sickness or injury is entitled to leave-of-absencewith pay as follows: (i) with regular salary for the first six (6) working days of absence, (ii) with seventy-five percent (75%) of regular salary for an additional one hundred and twenty-four (124) working days of 'absence, in each calendar year. 51.10 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 Deputy Minister of the ministry, certifying that the employee is unable to attend to his official duties. Notwithstanding this provision, where it is suspected that there may be an abuse of sick leave, the Deputy Minister or his designee may require an employee to submit a medical cer,ti- ficate for a period of absence of less than five (5) days. The essence of these provisions is that the employee must be '"unable to attend to his duties due to sickness...." v -9- In our view, the two documents from the grievor's doctor do not show that the grievor was unable to do his job for the whole period of February 26 to April 13. The note of February 26 "suggests" a sick leave, but is quite unspecific about the period and does not say that the grievor could not do his job if not granted the leave. The doctor gave no indication that he would monitor the grievor's condition. His treatment, was confined to the provision of some medication. On March 2 and again on March 9, the Ministry made it clear to the grievor that this first certificate was not acceptable because of its lack of specificity about the grievor's ability to work. Yet the grievor never obtained clarification from the doctor on this point. The second certificate of April 8 does justify sick pay from that date to April 12, but does not say that 'the grievor was unable to do his job since February 26. It says that the grievor was in the doctor's care from February 26 (we know that this really meant no more than the visit on February 26 and the one on April 8). But the certificate falls far short of saying the grievor was unable to do his job for 6 l/2 weeks. In sum, we find that the grievor did not satisfy the conditions for entitlement to sick leave under Article 51, except for the period April 8 to 12. We order that he be properly compensated for this period, and we reserve our jurisdiction to determine the compensation if the parties are unable to settle this themselves. - 10 - Finally, the Union argued that the Ministry should be held to a reduced standard in judging the doctor's certificates, in view of Article 18.1. This reads: The Employer shall continue to make reasonable provisions for the safety and health of its employees during the hours of their employment. It is agreed that both the Employer and the Union shall co-operate to the fullest extent possible in the prevention of accidents and in the reasonable promotion of safety and health of all employees. In our view, there was simply no breach of this provision in this case. 1 Done at London, Ontario, this 25th day of July, 1983. 8:3300 8:3123 A. Stapleton, Member r~ 1. 2. 3. 4. 5. 6. 7. 8. 9. 10. 11. 12. 13. 14. - 11 - EXHIBITS Request for leave of absence, February 17, 1982: Response, February lg., 1982 Letter from grievor, February 22, 1982 Response, February 23, 1982 Letter from Dr. Advincula, February 26, 1982 Response, March 2, 1982 Idem, March 9, 1982 Memorandum, April 8, 1982 Idem, June 1983 (no day) Medical Absentee Certificate, April 8, 1982 Letter of May 18, 1982 Grievance Form, May 19,.1982 Reply; May 28, 1982 Hospital Policy #9 ADDENDUM I reluctantly agree with the decision reached by the Board in this matter. However, I do wish to make a few comments about the lack of compassion, understanding and the insensitivity shown to the grievor ~by his superiors. It appears to me that on Feb 16, when the grievor verbally requested a 3-week leave of absence without pay, his Dept. Head, Mrs. 0. Shave5 did not take into account the seriousness of the. griever's request. Her reply, that since other people had already'been granted leave of absence, it was unlikely she would be able to approve his request. However, she tells him to sub- mit a written request even though her mind is already made up not to grant the leave. Three days later, on February 19, Mrs. Shaver advises the grievor that he can have five days leave of absence. Five days for the griever to travel thousands of miles each way, and spend some time with his dying father. No one will ever convince me that any favourable consideration was given to the grievor's request. I can appreciate the necessity for sufficient staff to be available for duty,, but if Mrs. Shaver had been sincere, she would have found some way to grant the grievor's request. She must have been concerned that she was not handling this matter properly because she commenced to check with her superiors. Mr. Thomson had already advised the grievor that he would not interfere with Mrs. Shaver's decision. I think that under the circumstances he should have overruled Mrs. Shaver and granted the leave. -2- After consulting with Mr. Asselstine and twelve days after her decision to grant one weeks"leave, she grants a further week. By this time, the grievor is under a doctor's care and is suffering from anxiety and depression, due, no doubt, not only to his father's illness, but to his inability to secure the. leave. I know there is no claim that the grievor was discriminated against, and I am not dealing with that, even though i~t may appear so. It is just that I am very disturbed at the way this whole matter was handled by the griever's superiors. -7z-%Lti71L/ I.J. Thomson, Member