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HomeMy WebLinkAbout1983-0160.Baldwin.84-01-28Between: IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD OPSEU (James Baldwin) Grievor - And - The Crown in Right of Ontario (Ministry of Correctional Services) Employer Before: J.F.W. Weatherill Chairman H.L. Robinson Member A. McCuaig Member For the Grievor: E.J. Shilton Lennon, Counsel Cavalluzzo, Hayes & Lennon For the Employer: E.J. Anthony Regional Personnel Administrator Ministry of Correctional Services Hearing: November 18, 1983 .7. -2- DECISION In this grievance, dated February 3, 1983, the griever protests a suspension of five working days imposed on him by letter dated January 10, although the actual days of suspension were from January 27 to February 2. The suspension was a result of an incident which occurred on September 21, 1982. The grievor did not report to work on that day, .and it was the em- ployer's view.that he was absent without authorization in conjunction with a concerted withdrawal of services. The issue before this Board is whether or not the griever was disciplined for just cause. The grievor is a Corrections Officer 2, em- ployed at the Windsor Jail. Be has been in that classi- fication for about four years. From the evidence before us (there are other cases arising out of the events of September 21, 1982 before another panel of this Board), a number of Corrections Officers employed at the Windsor Jail did in fact engage in a concerted withdrawal of services - an illegal strike - on that date. Partici- pation in such action, particularly by Corrections Officers expected to be on duty, and bearing an obvious responsibility for public safety is a serious offence. -3- If indeed the griever participated in that action, that is, if the employer's allegations against the grievor are made out, then we would have no hesitation in concluding that discipline had been properly imposed. The only issue of substance before us is the issue of fact: was the grievor in fact improperly absent on the day in question, and participating in an illegal strike? It was, on the evidence before us, the case that a substantial majority of the guards at the Windsor Jail did not report for duty, or called in "sick", on the day in question. This apparent illegal strike would appear to have been in response to a union call to demonstrate against certain legislation felt to be contrary to the employees' interests. Where a substan- tial and unusual number of employees are absent without leave, call in "sick" or engage in "study" sessions, particularly where this is done in response to union urgings, it is a reasonable conclusion to draw that in such circumstances the high incidence of "sickness" is not an unfortunate coincidence attributable to disease of epidemic proportions, but rather that the claims of sickness are probably false, and that in fact the absences are improper. That is the conclusion the employer reached in this case, and as we have indicated, it would appear that that was, in general, correct. i i -4- It is essential to note, however, that the circumstances referred to support a probable conclusion, not an absolute one. If- is entirely possible, and not at all inconsistent with the conclusion that most claims of sickness were false, that some such claims were not false, and that some of the employees who were absent were properly absent, and not guilty of any impropriety. In the circumstances which we have described, we consider that the employer would be justified in viewing each case of absenteeism on the day in question with a certain skepticism. It was obliged, however, to consider each case objectively. In the instant case, it is clear that the employer was aware of that obligation, and sought to meet it. The issue before us, however, remains whether or not, on all of the evidence before us. the employer has shown that there was just cause for discipline of the particular employee in this case, the griever . On the evidence before us, we find that the grievor was in fact sick on the day in question, and unable to go to work. The evidence also indicates that the grievor did not approve of the work stoppage. He testified that he "probably" would have worked on that day - such testimony is obviously self-serving, and in any event deals with a hypothetical situation, - although he would have sought leave to attend the funeral of a - 5- close friend. The griever did not attend the funeral of his friend. The grievor's wife did attend the funeral, and it was necessary to make baby-sitting arrangements since the grievor, although at home, was unable to look after the children. The evidence is that the griever suffered from a sore back. That is, again, the sort of malady with respect to which a certain skepticism may be called for. In the griever's case, there is no doubt that he had injured his back some time previously, and that he had, at an earlier time, been absent from work and receiving Workmen's Compensation on that account. He had recently hurt his back while playing baseball, and while he did not at first miss any work following that (since he was conscious that his attendance had not been good), he had made a doctor's appointment for September 20, after the conclusion of his midnight shift. The grievor went to the doctor on that day, accompanied by his wife. The doctor prescribed physiotherapy and analgesic drugs, and told the grievor to stay off work until September 30, and to go to bed. After leaving the doctor's office, the grievor returned home and went to bed. The evidence is that he was in considerable pain. The grievor's wife called the jail to advise that he would not be in to work. Being -6- aware that others might be calling in "sick" when they were really participating in an illegal strike, the griever's wife tried to make it clear that the griever was in fact sick, and that he would not be able to return to work for a couple of weeks. She called again the following day to repeat that the griever was off work because of his back, and the Sergeant to whom she spoke stated that he knew what back problems were and that the griever was "not to push it". The griever was in fact off work until October 11, on his doctor's recommendation. The griever's case is supported by medical evidence. . The diagnosis given by his family doctor was "muscular spasm, secondary to back injury of long duration". More recently, the griever was referred to an orthopaedic surgeon, whose view is said to be that the griever has developed a protruded disc. Medication and rest have again been prescribed, and the possibility of surgc:ry at some future time has not been ruled.out. Having regard to all of the evidence, it is our conclusion that the griever was in fact absent from work due to illness on the day.in question, and for no other cause. There was not, we find, just cause for the imposition of discipline on this particular individual. -7- For the foregoing reasons, the grievance is allowed. It is our award that the suspension imposed on the griever be set aside and removed from his record, and that he be compensated for loss of earnings. We remain seised of the matter for the purpose of dealing with any issue that may arise as to the precise amount payable to the griever pursuant to this award. DATED AT TORONTO, this%@ day of Member.