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HomeMy WebLinkAbout1983-0146.Kunka.84-04-17IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD Between: Before: R: McLaren L. Robinson M. O'Toole For the Grievor: E. Shilton-Lennon, Counsel Cavalluzzo, Hayes & Lennon For the Employer: E. Anthony Regional Personnel Administrator Ministry of Correctional Services Hearing: March 23, 1984 OPSEU (Ernest Kunka) Grievor - and - The Crown in Right of Ontario (Ministry of Correctional Services) Employer Vice Chairman Member Member -2- DEFISION Mr.. Ernest Kunka has been employed 'as a Correctional Officer 2 at the Windsor Jail for approximately 4 years. The jail is a maximum security institution, which contains inmates convicted of a wide variety of serious criminal offences. A Correctional Officer is designated by Section 2 of the Criminal Code of Canada as a Peace Officer while on duty. Their duties involve the enforcement of discipline,, the maintaining of security at the jail and the assurance of order and compliance with the rules and regulations of the institution. Counsel for the parties agree that on September 21, 1982, there was a withdrawal.of the services of the Correctional Officers from the jail. This actions was achieved by 20 of the officers booking off claiming that they were sick and 1 officer booking the day off. There are 25 Correctional Officers working at the Windsor jail, 11 of whom work on the day shift, 7 on the afternoon shift, which runs from noon until 8:00 p.m., and 5 on nights. On the particular day in question, only 4 Correctional Officers reported for duty. Mr. Kunka was absent from his duties at the jail on September 21, 1982, stating illness as his reason. Another panel of this Board has found that a group of 11 grievors from the Windsor Jail had no reason to be absent from their duties and the -3- discipline imposed upon them has been upheld. It is the agreement of the Counsel for the parties in this proceeding that there is to be no issue of mitigation. ,The Grievor was either justifiably absent, in which case he is entitled to back- pay for the suspension which he served, or he was absent without good and sufficient reasondue to illness and the discipline in the form of a five-day suspension is to be upheld by this ,. Board. :: The Grievor served his five-day suspension from January 19th to the 23rd of 1983. The grievance filed as Exhibit #l followed. It is alleged that the disciplinary action is without just cause. The Grievor worked his regular scheduled shift from noon until 8:00 p.m. on Friday, September 17, 1982. He learned through a fellow employee,after the event,that a meeting of off-duty Correctional Officers had been held to decide upon what action they might take as a result of the rumoured inflation restraint action which might be taken by the Government of Ontario. He was curious of the results of that meeting and attended at a tavern in Windsor after his tour of duty to find out'what had occurred. Be testifies that during his work shift on Friday, he began to feel unwell and his voice was becoming very hoarse. He left work and briefly attended at the local tavern. While he -4- was there, he did not have any alcoholic beverage, but did learn that his fellow Correctional Officers had voted to have a one- day protest against the rumoured pending actions of the Ontario Government. He then proceeded to get some non-prescription cold remedies and went home. The Grievor testifies that he retired to his bed for the weekend and had hot-and-cold chills and considerable discomfort. He did not eat over the. weekend and did not go out other than to the drug store. He informed his employer on the Sunday evening that he would not be coming into work on Monday, September 20, 1982, because of his illness and that he intended to see a doctor. Mr. Kunka does not have a family doctor and attended at a Windsor medical clinic where he saw a Dr. Khallil. Following a brief examination of a 'few minutes duration, he was given a prescription for some pills and some medicine. He had the prescription filled at the drugist's and filed a claim under the prescription drug benefit of the Collective Agreement which the employer subsequently processed and paid. On Monday, September 20, 1982, the Grievor informed a Sargeant that he was still feeling unwell and would be unable to attend at work on September 21, 1982. His condition improved somewhat on the subsequent day and he returned to work reporting for duty at his scheduled start time on September 22, 1982.' 5 r, ‘. -5- The Assistant Superintendent of the jail contacted the Grievor 'at his home on the Tuesday, the day of protest by the Correctional Officers. He apparently interrupted the Grievor's sleep and made an inquiry of him as to whether he would be at work the following day,to which the Assistant Superintendent received an affirmative answer. It is apparent from this testimony that the Grievor did not participate in the events of September 21, 1982. Upon his return to work, he was interviewed by the Superintendent of the jail as to the reasons for his absence. In the course of that interview, he tendered a medical certifi- cate in the following terms: *lnno8lxAlloN 108 MEDICIL TmATMW WINDSOR MEDICAL CLINICS sno “*wwo*NE W1NDfOE. ON,. MST ,,P I2 ,“ONL 941.21PS Unfit For Work -El light work Cl Keep Hands Dry cl Fit for Work El Days i El I - 2. , Signed 0 - L-A,_. * (Thebracket&parts are theworkof the Board.) -6- He was informed that given the circumstances which had occurred on September 21, 1982, and the large absenteeism which was far in excess of the normal daily or monthly averages, it was not accepted that he was ill and unable to come to work. Mr. Villeneuve, the Superintendent of the Windsor Jail, very candidly indicated that it was his belief that the Grievor was able to come to work and found a convenient excuse to not do.so in being ill. He indicates that he outlined the reason for the rejection of the medical certific,ate and instructed the Grievor ,. that he would not consider it as justifying his absence on the particular day. The provisions of the Collective Agreement do not require the tendering of a medical certificate to substantiate an absence due to illness of such a short duration as the one involved in this case. In that regard, the medical certificate is somewhat of a red herring in these proceedings. Mr. Villeneuve acted on the basis of the circumstantial evidence of the large number of absentees.in determining to discipline the Grievor. In rejecting the medical certificate, he was certainly within his right to do so, given the very incomplete nature of that certificate. However, he testifies that he believes that the Grievor was ill, but that the illness had not lingered sufficiently long as to prevent him from coming into work on September 21st. The difficulty with that testimony is that he has no direct evidence and no proof is offered of the basis upon which he might have held ? 9 ‘. - 7 - that belief. The belief is based upon the circumstantial , evidenceof thelarge number of people*owereabsentont&tday~ the inferences that might be drawn frun that fact. Mr. Villeneuve, in effect, took the risk in rejecting the Griever's explanation that he would come forward and substantiate his illness. He has, in fact, done that before this Board of Arbitration. In this case, the Employer accepted that the Grievor's absence on the Monday was a legitimate absence due to illness and he was paid for that day of absence. They also accepted the application for the reimbursement of the co,st of the prescrip- tion drugs which were prescribed on September 20, 1982. The bottle containing some of the contents of the prescription medicine was tendered in evidence and established both the name of the doctor and the date of the prescription. The Employer, therefore, conceded that the Grievor was truly ill on the Monday. 1-t can put no positive direct evidence before this Board that his state of illness had improved to such a degree as to enable him to return to work on the Tuesday. The Counsel for the Employer asked~the Board to draw an inference that the surrounding events of the day place a higher onus upon the employee. Suchahigher onus couldonlybe contemplated ard stillmightnot be placedqonan~loyee, if therehadbeenares&onsebythe e@oyerinaicating in advance that such was to be the obligation of employees to justify illness on that particular day. No such response was undertaken by the members of management and they cannot expect r -8- that the employees have an increased obligation with respect to that day over and above other days on which they would be ill. The Employer accepted the illness as being legitimate on September 20th. It is unable to offer any direct evidence that such was not the case on September 2lst and cannot dispute the evidence of the Grievor that he was ill. The best they can offer is to say that they have a speculative belief that the Grievor could have worked on the Tuesday. Such is insufficient to establish cause for discipline. Furthermore, the direct evidence of the Grievor in suggesting that the Assistant Superintendent telephoned him at home and he was in his sick bed only militates against Mr. Villeneuve having a well-founded belief as to the abilities of the Grievor to have worked on that particular day. Therefore, the evidence to support the Employer's action does not establish just cause for discipline. Much,was made in argument by both Counsel as to who might have the onus in this case. The onus is upon the Bmployer to justify discipline. The cases are legion on that point and no authority need be cited to justify such a proposition. While the primary onus is upon an Employer to satisfy a panel of this Board that there was just cause for the discipline imposed, there can be a shifting bonus once;there has been a satisfactory proof of the cause. In a case of illness, the shifting of the onus would be to the employee to provide an explanation and substantiate and corroborate that explanation as to the legitimacy of the .illness. It is this Board's view of the facts that the Employer never discharged the initial onus of just cause for discipline. The only reason supporting the Employer's action in his case is both circumstantial and conjectural. However, even if the Employer had satisfactorily got over that hurdle by, for example, telephoning him at home anddisoovering thathewas rat there, andprovinghewas presentatthe demonstrations which took place that day, that would merely have shifted the onus to the Grievor to provide an explanation. In this case, the evidence of the Grievor is overwhelming that he was ill and that his Employer had properly treated him as having a legitimate illness on the previous day. On the basis of all of the evidence heard by this Board, it must determine that the Grievor was'indeed ill and unable to work on that particular day. While the illness may have been in a state where he was improving, there is nothing to suggest that we ought to draw the inference that he had improved to such an extent that he could have worked on that day. Accordingly, we do not draw such an inference and it is found that he was indeed legitimately ill on that day. For all of the 'foregoing reasons, this Board must determine that the action of the Employer in disciplining the Grievor was. unfounded and the grievance is upheld. It. is ordered that the Employer pay the Grievor for the day of September 21, 1982, and the five-day suspension in January of 1983. Any record.of the discipline contained in the personnel file or any other file which the Employer maintains. on the Grievor is to be expunged by order of this Board. --4 .‘. - 10 - The Board will remain seized of the question of the amount of damages by way of compensation owing to the Grievor. In the event that Counsel,for the parties are unable to agree on the amount of monies owing to the Grievor, either party upon written notice to the Chairman of the Board within sixty (60) days of the date of this award can reconvene the Board for the purposes of having it determine the amount of monies owing to the Grievor. In the event that the Chairman does not receive written notice within this time period, the Board will be without jurisdiction to determine the matter and will be considered functus officio. DATED at London, Ontario, this 17th day of April, 1984. b4?e&LdRaL~ R. McLaren Vice Chairman L.~ Robinson Member M. O'Toole Member