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HomeMy WebLinkAbout1983-0159.Fox.84-10-02:. .~ .’ . ., I ‘. ;.: IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAWlNG ACT Before THE GRIEVANCE SETTLEMENT BOARD Between: OPSEU (William Fox) and The Crown in Right of Ontario (Mi$stry of Correctional Services) ,~ Before: For the Griever: For the Employer: Hearing: I. C. Springate Acting Chairman .F. D. Collom Member E. R. OXelly Member E. Shilton Lennon ‘. Courtsel Cavalluzzo, Hayes & Lennon Barristers & Solicitors E. J. Anthony Regional Personnel Administrator Ministry of Correctional Services . May 23, 19W 159183 Griever Employer . -2- . * This is one of a series of cases arising out of an unlawful strike at the Windsa Jail on Tuesday, September 21, 1982. The strike took the form of the employees booking off sick as a means of protesting certain proposed provincial legislation. All of the employees who booked off sick on the day in question were disciplined by the employer. This, in turn, prompted the filing of grievances by a number of employees claiming that they had, in fact, been ill on September 21, 1982 and their absence from work had IY) connection with the unlawful actions of other employees. Many of these grievances have already been dealt with by other panels of the Board. The griever is a corrections officer 2 at the Windsor Jail. He did not report for work on September 21, 1982. As a result, he was suspended for five days for allegedly participating in the unlawful strike. The grievor and the union contend that on the day in question, the grievor was absent from work only because he was ill. If this was in fact the case, then the griever must be compensated for his five day suspension. The union acknowledges, however, that if the griever’s absence was due to his involvement in the strike, a five day suspension was an appropriate disciplinary response. Here, as in all discipline cases, the employer bears the onus of establishing the existence of grounds for discipline. The employer led evidence to establish that on the day in question most employees at the Windsor Jail engaged in an unlawful strike in the guise of booking off sick, and that the griever had been among those who had booked off sick. These I -3- facts, in our view, are sufficient to create a presumption that the griever’s absence from work was in connection with the ~unlawful strike. This presumption can, however, be rebutted by evidence that satisfies us that the griever’s absence from work was, in fact, due to illness. See OPSEU (James Baldwin) and ‘Ministry of Correctional Services 160/83 (Weatherill) and Strasser v. Roberge (1979) 103 D.L.R. (3d) 193 (S.C.C.). At about the time in question, the grievoi was experiencing problems with his gall bladder. He had originally developed a gall bladder disease in June of 1982, at ~which time he was hospitalized. He was again hospitalized with gall bladder problems on September 13,. 1982. The ‘. griever’s personal physician, Dr. George Bruner, visited the griever in / hospital on Friday, September 17, and indicated that he could leave the ” hospital. According to the griever, however, on the advice of a surgeon he’ stayed in hospital for two additional, days until Sunday, September 19th. Dr. Bruner, who~gave evidence in these proceedings prior to the grievor, testified that by Monday, September 20th the grievori would be able to return to work, although he would still have been somewhat “tender.” On .Monday; September 20, 1982, Dr. Bruner prepared a health certificate for use by the griever indicating that he was able to return to work on September 20th. Dr. Bruner testified that .he could not recall when on September 20th he had prepared the certificate. In response to a question from the employer’s counsel, Dr. Bruner stated that his records did not indicate that the griever had received a needle with a pain-killer on either September 20th or September Zlst. In response to a question from union counsel, Dr. Bruner stated that he had no recollection of telling hi . -4- ‘. nurse on September 20th to give the griever a shot of pain-killer and added that had he done so, he would have changed the griever’s health certificate to indicate that he was still unable to return to work. The griever testified that his first day back at work was Monday, September 2&h, and that during the course of the day he started to feel pain. According to the griever, after work he went to Dr. Bruner’s office to pick up the health certificate and that while in the office he asked the nurse if the Doctor was in since he was in severe pain, to which Dr. Bruner, who had overheard him, indicated that the nurse should give him some pain-killer. According to the griever, Dr. Bruner then went into his office with a patient and the nurse gave him a needle of pain-killer. The griever stated that he then went home and because he was not feeling well he telephoned the jail to say that he would not be in to work on the next day. According to the griever, on Tuesday the 21s.t he was still in some pain and during the day he took a prescription pain-killer. The griever returned to work on Wednesday, September 22nd. On the griever’s return to work he was asked by Mr. Ross, the Jail’s Deputy Superintendant, to write out a report explaining his absence , on the previous day. In his own handwriting the grievor wrote the following: Sir. At approx 0730 hrs on Sept 20/82 I called the Windsor Jail to report that I would not be in to work on Sept 21182 due to severe pains in my right side caused from and (sic) earlier attack the week before of gall bladder recuring. On Sept. 21/82 Mr. Ross called my.home at approx. 1300 hrs wakening me. He asked if 1 was sick 1 told him why I was not in and did not know when I would be returning. ,E -5- 1 had gotten a needle from Dr. Brunner the night before and again on Sept 21/82 at approx 1025 for pain. for your information ; W.Z. Fox co2 In his testimony the grievor indicated that he had received only one needle. and that was from Dr. Bruner’s nurse on September 20th. In his written report to Mr. Ross, however, the grievor stated that he had received one needle from Dr. Bruner on September 20th, and another “on Sept. 21/82 at approx 1025.. ” When asked to explain thll discrepancy, the griever put it down to “bad report writing.” According to the grievor, the nurse had told him to return on September 21, if necessary, between IO:00 and II:00 a.m., and hence in his report to Mr. Ross he should have added the phrase”‘if necessary” when referring to a needle on September 21st. When giving his testimony, the grievor was adamant that his absence from work was in no way connected with the unlawful strike. Indeed, stated the grievor, “I’m kind of anti-union.” It was the griever’s initial contention that on September 20th, he had not learned that the employees were planning to book off sick on the Zlst. When pressed on cross-examination, however, he agreed that something was “in the air.‘. Later in his cross-examinatiori, the grievor claimed that he had not been directly told about an impending strike, although shortly after this he stated that on September 20th he had heard some hearsay about it. and had heard one corrections officer state that he would not be in the next day. Given the griever’s evidence on point, we are of the view that on September 20th the grievor likely did learn that a strike was to be held on September 21st. In assessing the weight to be given to the griever’s claim that he was, in fact, ill on September 21st, we turn again to consider his -6- handwritten memorandum of September 22, 1982 to Mr. Ross. The grievor now concedes that he was not in Dr. Bruner’s office on September 21st, the day of the strike. However, the memorandum indicated that he received a needle from Dr. Bruner on both September 20th and 21st. In our view, the griever’s claim that the reference to a visit on September 21st should have been qualified by the phrase “if necessary” rings false. Nor only were the words “if necessary” not included in the memorandum, but the memorandum states that the griever received a needle on the 2Lst “at approx 1025 for pain.” The reference to the specific time of IO:25 would leave the clear impression that a needle had been given, not that the possibility existed that it might be given. ‘The griever’s evidence that Dr. Bruner’s nurse told him to return on September 21st, if necessary, between 1O:OO and 11:OO is certainly not a believable explanation as to why the specific time of lo:25 was referred to. In these circumstances, we are led to conclude that by, his memorandum of September 22, 1982, the grievor sought to mislead the employer into believing that on the day of the strike he had been to see Dr. Bruner and had received a needle for pain. We are also led to the conclusion that under oath the grievor sought to mislead us about his intent in writing the memorandum. The grievor testified that he was in great pain on September 20, 1982 and that is why he called in to the Jail to say he would not be ins to work on the 21st. To slqport this claim, the griever testified that on Dr. Bruner’s instructions he had been given a needle for pain on the 20th by the nurse. Dr. Bruner, however, testified that his records made no mention Of a needle being given to the grievor on the ZOth, and that he had no recollection of having told his nurse to give the griever a needle. It is possible, of course, that Doctor Bruner’s records wrongly failed to note .l, _ ,i -7- that a needle had been given and that the Doctor’s memory failed him about directing his nurse to give the grievor a needle. It is also possible, however, that the grievor fabricated the story about getting a needle for pain on the 20th. We feel this second possibility to be the more likely. In this regard, we have already concluded that the grievor sought to mislead us concerning his memorandum of September 22nd. Further, we have Dr. Bruner’s evidence that if he had directed his nurse to give the grievor a needle on the 20th, he would have changed the griever’s medical certificate to say that he could not go into work. The medical certificate, however, clearly states that the grievor was able to return to work on September 20th. In these circumstances, we are led to the conclusion that the grievor most likely went to Dr. Bruner’s office on September 20th only to pick up his medical certificate. and that while there he did not get a needle for pain. .-: We are satisfied that the grievor sought to mislead us both about having received a needle for pain from Dr. Bruner on September 20th, as well.as about his memorandum to Mr. Ross on September 22nd. In these circumstances, we are unable to give any weight to his self-serving claim that it was due to his being in pain on September 20th that he called in to say he would not bein to work on the 21st. This being the case, we are led to conclude that the griever’s absence on the 21st was part of the unlawful withdrawal of services by most of the Windsor Jail employees and that, accordingly, the employer did have just cause to suspend the grievor for five days. The grievance is hereby dismissed. . .- -8- Dated at Toronto this 2nd day of October, 1984. . . 1. C. Springate, Acting Chairman I I 1 . .