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HomeMy WebLinkAbout1983-0153.Peters.84-11-22Between OPSEU (Janne Peters) - and - The Crown in Right of Ontario (Ministry of Correctional Services) Before: I.C. Springate Acting Chairman F. Taylor Member B. Lanigan Member 153183 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD Grievor Employer For the Grievor: E.J.S. Lennon Cavalluzzo, Hayes & Lennon Barristers & Solicitors For the employer: E.J. Anthony Regional Personnel Administrator Ministry of Correctional Services Hearing: April 16, 1984 DECISICN The griever and the union allege that the griever, Ms. Janne Peters, was given a five day suspension without just cause. The griever is a corrections officer at the Windsor Jail. She was suspended for allegedly participating in an unlawful strike at the Jail on September 21, 1982. The strike, which was to protest certain proposed provincial legislation, took the form of employees booking off sick. In that the griever had booked off sick on the day in question, the employer concluded that she had participated in the unlawful strike. The union, however, submits that the grievor booked off sick because she was in fact ill. The employer bears the ultimate onus of establishing that it had just cause to discipline the grievor. However, we are satisfied that the evidence led by the employer to establish that there was an unlawful,strike in the.guise of employees booking off sick, and that the grievor had booked off sick, was sufficient to create a presumption that the griever’s absence from work was in connection with the unlawful strike. This presumption, in turn, was capable of being rebutted by evidence establishing that the griever’s absence was, in fact, due to illness. See: OPSEU (James Baldwin) and Ministry of Correcitonal Services 160/83 (Weatherill) and Strasser v. Roberge (1979) 103 D.L.R. (3d) 193 (S.C.C.1. -3- legislation which was to be held in Toronto on September 21st. The griever testified that she voted in favour of employees doing so. Notwithstanding what the griever’s understanding of the purpose of the vote might have been, it is clear that most of the employees at the Windsor Jail who booked off sick on September 21st did not travel to Toronto for the rally. Rather they remained in the Windsor area. There is no dispute that at the relevant time the grievor was suffering with health problems. She had a sore throat, headaches and was coughing heavily. On September 14, 1982 the grievor booked off sick because of these problems and went to see her doctor, Dr. Steve Tschen. Dr. Tschen prescribed an antibiotic and cough syrup for her to take. September 15th and 16th were days off for the grievor.. She returned to work on September 17th, and worked the midnight shift on the 17th IXth, 19th, and 20th, all the lvhile with a sore throat, and coughing. The antibiotic and cough syrup prescribed for her on September 14th by Dr. Tschen did not improve her condition. On September 20st, at about 5:00 p.m., the grievor again visited Dr. Tschen, at which time he prescribed a different antibiotic and cough syrup, as well as an analgesic for her headaches. The Doctor warned the griever that this new medication was somewhat stronger than what she had been taking. According to the grievor, the Doctor advised her to .try to take the medication as prescribed, -3- legislation which was to be held in Toronto on September 21st. The grievor testified that she voted in favour of employees doing so. Notwithstanding what the griever’s understanding of the purpose of the vote might have been, it is clear that most of the employees at the Windsor Jail who booked off sick on September 21st did not travel to Toronto for the rally. Rather they remained in the Windsor area. There is no dispute that at the relevant time the grievor was suffering with health problems. She had a sore throat, headaches and was coughing heavily. On September 14, ‘1982 the grievor booked off sick because of these problems and went to see her doctor, Dr. Steve Tschen. Dr. Tschen prescribed an antibiotic and cough syrup for her to take. September 15th and 16th were days off for the grievor. She returned to work on September 17th, and worked the midnight shift on the 17th ISth, 19th, and 20th, all the while with a sore throat, and coughing. The antibiotic and cough syrup prescribed for her on September 14th by Dr. Tschen did not improve her condition. On September 20st, at about .5:00 p.m., the grievor again visited Dr. Tschen, at which time he prescribed a different antibiotic and. cough syrup, as well as an analgesic for her headaches. The Doctor warned the griever that this new medication was somewhat stronger than what she had been taking. According to the grievor, the Doctor advised her to try to take the medication as prescribed, -4- but if she found that she could not handle it, she should cut back the dosage. The grievor also testified that the Doctor told her the medication might make her feel dizzy or groggy, and that if this should happen, she should take the day off work. Before leaving the Doctor’s office, the grievor was given a standard form certificate signed by Doctor Tschen which read as follows (the underlined parts were written in pen): “CERTIFICATE FOR RETURN TO WORK OR SCHOOL Mrs. J. Peters has been under my care from Sept. 20 82 to and is able to return ~~ to work on Sept. 21 82. Remarks: Sore throat infect ion” It will be noted that the certificate indicated that the grievor could return to work on September 21, 1982. In fact, her next shift was to run from midnight to 8:OO A.M. on September Zlst. It was the griever’s testimony that it was not until some time later that she realized that the doctor’s note as written did not actually excuse her from the shift immediately following her visit to the Doctor. It was the grievor’s testimony that after leaving Doctor Tschen’s office she picked up her new medications, and once home took the prescribed dosage. According to the grievor, at about 7:00 P.M. she began -5- to feel drowsy, and as a result she telephoned the jail and advised a Sergeant Levesque that because of the effects of her medication she would not be in to work on the midnight shift. The grievor testified that she then went to bed, awaking at 1:00 A.M. to again take her medication. According to the grievor, she next woke up again at about 11:OO A. M. It was the grievor’s testimony that she later cut-back on her medication dosage, and then returned to work on the midnight shift on September 22nd, although her throat was still sore and she was coughing badly. The grievor also showed up for work on the following day, September 23. During her shift, however, she felt groggy, and accordingly spent much of the time sitting in the muster room. On or about October 2nd, the grievor developed an allergic reaction to the medication she had been taking and accordingly over the phone Dr. Tschen prescribed other medications. On October 4th, the grievor again developed an allergic reaction and accordingly on October 8th went to see the doctor, when he gave her another prescription. This prescription also caused an allergic reaction. After a number of tests at a local hospital, the grievor was given yet another prescription. The medications involved had the desired effect of clearing up the griever’s problems sometime in November of 1982. -6- As already noted, the grievor booked off sick for the midnight shift on September 21s.t. When the grievor arrived at the jail prior to the start of the midnight shift on September 22nd, she was interviewed by Mr. J. Ross, the jail’s deputy superintendent. Both Mr. Ross and the grievor testified with respect to the interview, and they were in basic agreement as to what was said. When asked by Mr. Ross why she had called in sick, the grievor stated it was because of her medication and because her doctor had advised her to take the day off. Mr. Ross then asked the grievor about the union meeting held on September 17, 1982, to which the grievor replied that she had attended the meeting. The grievor disputed Mr. Ross’s suggestion that at the meeting she had been told to call in sick, but acknowledged that employees had been asked to do so. Mr. Ross, who doubted that the griever’s illness had beerr the real cause of her absence, wrote a report to Mr. V. Villeneuve, the jail’s superintendent, commentating on her attendance at the union meeting and her admission that she had been asked to calJ in sick. Mr. Ross also forwarded to Villeneuve a statement written by the grievor which read.as follows: Subject: Sick Day - Tues. Sept. 21/82 - 0001-0800 hrs shift Sir: At the above said date, I was booked off sick due to stronger prescribed medication by my family doctor, on Monday, Sept. 20/82. I booked off sick on Sept. 14/82 0800-1600 hrs. and the medication did not clear up my throat infection. When I saw the doctor on Monday, he explained that the new medication would make me groggy and dizzy, but he -7- wanted me to take it as prescribed for a couple of days. If these side effects occured, I was to cut back on the medication, which I have done in order to come into work today. I left my home today at 1245 hrs. in order to drive my daughter to school. At no other time did I leave my home. For confirmation of the above medical information, you may contact my doctor at: Dr. Tscheni 61 Giles Blvd. E., 258-3429 Subsequent to meeting with Mr. Ross, the griever was asked for supporting material relating to her claim that she had been ill on September 21st. Accordingly, when the grievor visited Dr. Tschen on October 8, 1982 she obtained a new medical certificate which indicated that the grievor had been under the Doctor’s care from September 14th to October Sth, and then went on to state: She had a bad cold and also can’t tolerate the medicine well and had visited me on Sept. 14, 20 and Oct. 4, 1982 On October 15th, the grievor was called into a meeting with Mr. Villeneuve. The griever advised Mr. Villeneuve that she had been ill with a throat infection on September 21s.t and was having a reaction to her medication. Mr. Villeneuve, however, concluded that the true reason the grievor had booked off work was because of the unlawful strike. In testifying before the Board, Mr. Villeneuve stated that while he had been satisfied that the grievor was suffering from some sort of illness, he did not believe it was the illness that had kept her away from work. With respect to this conclusion, Mr. Villeneuve indicated that he had relied, -8- in part, on Dr. Tschen’s note of September 20th which stated that the grievor could return to work on September 21st, which was in fact the day she had been absent. It wili be noted that Dr. Tschen’s note of October 8, 1982, which Mr. Villeneuve had also received, did not deal with this issue in any way. In contemplation of the hearing before the Board, however, union counsel obtained a further written statement from Dr. Tschen, the relevant parts of which read as follows: Re: Ms. Janne Peters On September 14, 1982, Ms. J. Peters visited my office complaining of a sore neck, sore throat and coughing. On Physical examination, she was found to have pharyngitis with cervical lymphadenopathy. The chest was clear. She was treated with antibiotic and cough syrup. Ms. Peters returned to my office again on, September 20, 1982, for a follow up examination. Her coughing persisted, her throat was still sore and she also had severe headaches. Again she was given an antibiotic, cough syrup and an analgesic for the headeaches and she was advised to take a day off work. A doctor’s note was issued to her at this time. Unfortunately, she developed a skin rash after taking the medicine, it is possible she was allergic to the cough syrup, and the antibiotic (Vibramycin), made her sick. She was therefore, treated with Bactrim DS and Co-Actifed on October the 8th, 1982. This is all that I can report to you about Ms. Janne Peters medical condition around the 21st of September 1982. Given what happened on September 21, 1982, and the number of employees who falsely claimed to be ill that day, it is understandable that management viewed with skepticism the griever’s claim that she had been ill. This skepticism would have been re-inforced by the wording of Dr. Tschen’s note of September ZOth, which stated that the grievor could . . -9- return to work on the 21st. Indeed, given the way the note was worded, it was not surprising that Mr. Villeneuve apparently rejected the grievor’s claim that she had been told by her doctor to take the day off work. It is possible, however, that Dr. Tschen worded his note the way he did because he did not realize that the griever’s next scheduled shift, which was to start at midnight, would be viewed as being on September 21st. This matter is cleared up by the Doctor’s letter of March 14, 1983 where it states: Ms. Peters returned to my office again on September 20, 1982 for a follow up examination. Her coughing persisted, her throat was still sore and she also had severe headaches. Again she was given an antibiotic cough syrup and an analgesic for the headaches and she was advised to take a day off work. A doctor’s note was issued to her at this time. (emphasis added) This excerpt indicates that the doctor did, in fact, suggest to the grievor that she take a day off work, and that his note of September 20th meant to state that this was the case. Having regard to the above, we are satisfied that Dr. Tschen likely did advise the grievor to take a day off work. This would have meant staying off work on the midnight shift on September 21st. Given this conclusion, as well as our general assessment of the griever’s credibility, -lO- we accept her evidence that DoctM Tschen advised her that the new medication might cause her to be dizzy or groggy, and that such a result did in fact occur. We would note that her evidence in this regard receives some support from the fact that although she reported for work on September 23rd, due to health problems she was unable to fulfill all of her duties. Having regard to the foregoing, we find that prior to her shift on September 21st the grievor had been sufficiently ill to warrant her calling in sick, and that such a course of action had been proposed by her doctor. Given the way the grievor voted at the union meeting on September 17th, one is left to wonder what she might have done had she not been ill on September 21st. However, we are satisfied she was sufficiently ill to call in sick. It follows that the respondent did not have just cause to discipline her. Having regard to the foregoing, the grievance is allowed. The suspension imposed on the griever is set aside, and she is to be compensated for her loss of earnings. We remain seized of this matter for the purpose of dealing with any issue that may arise with respect to the compensation payble to the grievor. - 11 - DATED at Toronto, Ontario this 22nd dayof November ,I984 F. Taylor, Member f-~ - B. LqCgan, Member