HomeMy WebLinkAbout1983-0268.Anonymous.83-11-22c
IR THE BATTER OF AN ARBITRATION
Under
THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT
Before
TBE GRIEVANCE SETTLEMENT BOARD
Between:
Before:
~OPSEU (Anonymous) Grievor
- And -
The Crown in Right of Ontario
(Ministry of Government
Services) Employer
R. McLaren
S. S~chachter
E.R. O'Kelly
Vice Chairman
Member
hlember
For the Grievor: J. Hayes, Counsel "
Cavalluzzo, Hayes & Lennon
For the Employer: P. Van Rome
Manager, Staff Relations Ministry of Government Services
I
I
,’
Hearing: October 26, 1983
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AWARD -----
The Grievor is a thirty-nine year old male, who had
been employed as a manual worker in the Property Maintenance
Branch of the Ministry of Government Services since August 23,.
1972. For reasons which will hecome apparent upon reading thi;:
Award, the Counsel for the Union requested that the identity o;E
the Grievor remain anonymous. The Board has observed that,
request and the Grievor will be referred to without 'identifica'iion.
ion. On April 5, 1982, the Grievor tendered his resignat
On March 11, 1983, a Grievance was filed stating:
"Management knowingly accepted a letter of
resignation at a time when I was very ill
and under doctor's care and was not fully
aware.of the ramifications of my decision, thereby taking unfair advantage of a
situation. Therefore, I have in fact been dismissed without just cause."
I 1:
The Employer raises a preliminary objection to the
Board's jurisdiction to hear this matter because of the failure
to file the Grievance within the time limits prescribed in the,;
Collective Agreement resulting in the Grievance being deemed to
have been withdrawn because of Article 27.11. The relevant .:
provisions of the Collective Agreement read: ,~
"ARTICLE 27--GRIEVANCE PROCEDURE
. . . 27.6.2 Any employee other than a
probationary employee who is dismissed shall be entitled
to file a grievance at the second stage of the grievance procedure provided he does so within twenty (20) days of the date of the dismissal."
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"27.11 Where a grievance is not processed
within'the~time allowed or has not
' been processed.by the employee or the
-Unionwithin the time prescribed it
shall be deemed to~,have been withdrawn.
. ._ ,. 27.14 The Grievanc,e:Settlement Board shall
have no, jurisdiction to alter, change,
amend or, enlargqany provision of the
Collective",Agreement~. "
The Employer also raises a preliminary'objection to
the Board's jurisdiction to, hear this matter based on the theory
that the Grievor inresigning this employment has no grounds of
complaint regarding'discipline or dismissal without just cause.
Therefore, there is no violation of the Collective Agreement
which the Grievor can ~allege‘and the Board accordingly lacks
jurisdiction to hear the complaint.
On the day of the hearing, the Board reserved on the
preliminary objection ruling that it would'hear the case in its
entirety and make ~the appropriate determinations in this Award.,
The preliminary objections~ are so intertwined, with the'.merits
qf. this case,, it is necessary to delve into the facts and
circumstances ~before~ a.ruling upon them can be made.. . .~
~1
In preparation for these proceedings, Counsel on
behalf of the Union collected a number of letters from various
medical and psychiatric persons who had treated the Grievor.
That information, filed as Exhibit #2, indicates thatas of
the summer of 1983, the Gr,ievor:
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!
,ic
. . .
"shows indication of relapse of his psychiatr
illness in terms of disorganization of
thought processes and partly delusional
ideation (e.g. he told me "the man from Micom,
the salesman, is using my name and sold
$100,000,000 worth of equipment and servicing
to the government "he also discussed his
contact with RCMP and that he expressed to
to them concerns about "murder, drug
trafficking and politics - all very
vaguely put") The formal diagnosis in the
past has been schizo-affective disorder -
which implies that besides a schizophrenic
type of disorganization of thought and
feeling processes there are mood swings
evident either in terms of manic elation or depression. At the present there are no such
obvious mood changes and therefore as of now
the clinical picture would be more in
keeping with the diagnosis of paranoid
schizophrenia. There was no evidence of any
aggressive or violent tendencies or of any
self destructive preoccupations within the
interview."
. . .
L. Jeney, M.D., F.R.C.P. (C) I Signed
(Exhibit #2,page 13)
Dr. Jeney, a psychiatrist, first saw the Grievor in 1963, when
he would have been nineteen years old. He was a patient c,f '
Dr. Jeney at the Ontario Hospital in Toronto. He was hospitalized
again,under a different doctor in 1966 at Whitby Ontario Hospital.
He was certified mentally ill on October 18th of that year. ',
(See letter of Dr. Jeney dated November 2, 1968.) In a letters
to the family physician dated September 28, i968, Dr. Jeney !I
states:
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!
. . . . .
"I feel that the diagnosis, based on this
interview today, could be either .developing
.paranoid schizophrenia or possibly a schizo-
affective psychosis with paranoid and hypomanic
features predominating: I really think that'
it is a debatable point as to which of, the two.
However, in certain spheres, his reality
testing at the present seems to be abrogated.
I did not elicit any.information which would
indicate~.dangerousness to.self or.others.
Therefore, I would feel it reasonable to try
outpatient treatment and ~to try to keep.him
going with the job.
. . . I wonder that if tie"does not cooperate with adhering pf his regimen of medications,
that it would be a matter of'time that he,
would nee.d to be re-hospi.talized." -. . .' ,
L. Jeney, M. D.
c Signed
(Exhibit #2, page 2)
The first thing the Board notes is that the illness
manifested itself as early as1963 and the tentative diagnosis
of Dr.'Jeney in 1968 is subsequently confirmed in 1983. .;
Dr. Jeney, who remained the Grievor's psychiatrist
until November of 1981,~ required-the Grievor.to adhere~to a
.regimen of drugs thoughout this period.,.
In August of 1981, the Griever. began to see Dr. Nash,
an M.D., and Dr. L. Page, a Ph.D. in psychology. They saw him
for psychotherapy on nine occasions between August.25 and
October 29, 1981. The Grievor was apparently able to convince
them that his difficulties arose from his job. They were not
in possession of any information which Dry. Jeney had about the
,
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Grievor. (A point emphasized by the latter in his letter to the
Union of March 7, 1983, and to Counsel for the Union dated
August 17, 1983.) 'They wrote to the Employer on October 22,
1981, stating:
. . .
"Much of his emotional difficulty has been
fostered by the interpersonal patterns in his
present job. These patterns include ridicule,
teasing, psychological abuse and the breaching '
of confidences. He feels constantly humiliated
by his co-workers.
&s7 self-esteem is improving with therapy I
and we feel confident that he is ready to
function constructively in a new position."
.., 1
Linda J. Page, PH.D.
Signed
(Exhibit #2, page 7)
Mr. Scheidig, the Grievor's Supervisor, testifies he;
was unable to determine any job harassment by fellow employees,
but he did recognize that the Grievor believed there was such
and spoke frequently about it. Mr. Shepherd, at the time
Assistant Director of Personnel, tried~to find a new job to
which to transfer the Grievor as a result of the doctor and !
psychologist's letter, but there was none alyailable.
The Grievor was absent from work because of his
psychiatric illness from September through December of 1981. )!
During that absence, he wrote a very strange letter to his
Supervisor dated October 14, 1981 (Exhibit #5). It speaks of
his future plans and conveys to the reader the impression c,f a
!
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good-bye address to a loved one and'not one's fellow employees.
Its last paragraph reads: ,..
i . .
"Right now, I feel I can no longer'be best
made use of in the moving section. Please
could we part with no regrets, rancor,
vindictiveness; and, especially, resentments!
It is best for all conc~erned. .,God bless
you all, -and thank you! My memories are
often happy, warm and comical: hopefully,
they will continue. Once again, God bless
you all and thanks!
Best wishes and
lots of love"
Signed
(Exhibit #5)
In March of 1982, the Grievor attended.the Psychiatric
Department of the Toronto General Hospital; (see Canada Life
form, page 11 of Exhibit,#2.) In a letter to the Union dated
March 7, 1983, Dr. Jeney indicates that there were fluctuations
in the Grievor's behaviour when attempts were made to reduce
tranquilizer medications. It appears that following the
Grievor's decision to Stop seeing'Dr. Jeney in 1981, some Of _.
the Grievo'r's new doctors "weaned" him 'off the tranquilizer .
regimen and "that since then he had no such.medications, up 1.
until'the most recent involvement with a Dr. Kerketh Siran,
who prescribed a small dose of a minortranquilizer."
(Exhibit #2, page 13) Dr. Jeney further says in that letter:
'~ 7 i. . . .
"The above however, is to my mind .not an
answer to the interim period, that is, since
'his discontinuation of treatment in May
1981. It is to be noted that individuals who
suffer from chronic schiyophrenic disorder,
~whatever subtype, shoti a relapse rate of
10% per month after discontinuation of
their established maintenance antipsychotic
medications."
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This change in the drug therapy did apparently ha-/e
some consequences'for the Grievor. He was off sick throughout
the period from September through December of 1981 and it was
necessary for him to go to the Psychiatric Department of
Toronto General Hospital in March of 1982.
On February 9, 1982, the Grievor wrote another :I
peculiar letter to his supervisor, Mr. Scheidig. It expresses I,
his paranoia feelings associated with his work and rambles to
some extent without logical association, as well as indicating I.
that he has health problems, and stressing some feelings of
being harassed on the job. (Exhibit 117) Mr. Scheidig did not I
know how to respond to this letter. His superior responded to 1:
it by indicating "your duties as a manual worker are outlined 1 I
in the position specification... I cannot comment on your
medical problems". (Exhibit 18)
From all of this evidence, it must be concluded that ;
the Grievor's psychiatric status was out of control and he was,
. not capable of forming the mental intention to resign despite :;
actions, which to some might have appeared both rational and (,
pre-planned. :
I
If any confirmation of such a conclusion is required,.:
it can be found in a very peculiar letter written by the
Grievor on June 17, 1982, stating that it was an apology.
(See Exhibit fll) It is totally unclear k'!ly a letter of
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apology would be required if the circumstances were such that
the Grievor had quit. It is po~ssible in reading the letter to
deduce that in a‘fashion it may be an indirect request to have
his job back. Inany event, its peculiarity is in its
enclosures listed at the bottom of the letter as: ~,'
II I ) The Red Rocket
II) Capital Punishment
III) The Visa Application (etc")
IV) A Letter of Apology"
.* ,
The representatives of both the employer and the~Union
tried without.success to convince the Grievor he should not resign.
It is difficult to understand why they did not request a psychia-
tric examination and assessment of the Grievor prior.to kis termination.
The Board concludes from all of the foregoing evidence
that the Grievor cannot have been considered to have been
responsible for his decision to quit. He was not of a rational
state of mind in which he could exercise the degree of judgment
(.~ necessary to know the consequences of his actions. People who
are not well can function in certain respects and can give.~the
impression of rationality and sound mind. That seems to have
occurred in this case at least from the Employer!s point of~view.
The quit versus discharge case law admits of a rationale
based upon protection of an employee who momentarily acts against
his interest, but is an abhorrent or temporary aberration~,for
an otherwise rational person. The case law requires that there
be a real subjective intent to resign which is assessed by an
objective examination of the conduct surrounding the CircumstanCes
0 #f termination of employment with close attention being paid to
the actions of tke employee involved. This case cannot admit ORE
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such an exam;nation because here the employee is incapable of
forming an intent because of mental incapacity at the tine Iof
resigning and following thereafter. While an objective examina-
tion of the conduct surrounding the circumstances of the
term-nation might suggest a real subjective intention tc re.slcn",
the mental illness of the Griever makes it unnecessary to COP-
duct a:: objective examination of those circumstances because
the person, is ccnsidered at law to be incapable cf forzizg 1: II
the real objective intent because of the inability to
appreciate the consequences of the actions which flow from
the conduct. In such circu;nstan,zes, the contractual agreem+nt ;
between the employer and employee cannot be brought to an end ',
by the apparent voluntary actions of the employee.
I
What then, is the effect of the two preliminary
objections on the foregoing conclusion? The mental incapacity /I
of the Grievor making him not responsible for his actions must ,:
extend to his ability to file a Grievance. The time
limits set out in Article 27.6.2 presume that the person has !
the rationality to know of'the consequences for failure to
comply with the provision. In this case, the Grievor had not l:
the rationality to know of these consequences ar.d they cannot II
be considered to have applied. The first preliminary objecrion
is, therefore, overruled. It is found that the Grievance 1:s
timely because the Griever lacked the capacity to rea!ize t.le
consecucnces of his acti :n I-csigning and the neci to co:npl),
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limits to with the time file a Grievance to obtain the declara-
tion found in th,is Award. There is 'no evidence to suggest that
the Union did not act when it became apprised of the situation
and file a Grievance on behalf of the Grievor in anything but a
timely fashion. It must be concluded to have done so and the
Grievance is found.to be timely:
The second preliminary objection relates to the
Board's jurisdiction in that the Grievor had resigned. It has
been found in this Award that the Grievor lacked the capacity
to resign. In result, the employee-employer relationship
existed on April 5, 1982, and continued to this day. The fact
that the Employer processed the resignation and subsequently
refused to consider the Grievor.a~n employee amounts to a
constructive dismissal. Such action is a discharge without
cause which is a matter grievable under the Collective
Agreement. Therefore, the second preliminary objection is
without foundation and it is rejected.
i
For all of the foregoing reasons, ~this Board declares
that the Grievor is now and has always been an employee of the
Employer since the alleged quit on April 5, 1982. It is declared
that the employment relationship remained intact throughout'the
period from April 5, 1982, to the present without regard to the
actions of the Grievor.
I
The Board is advised by Counsel that the Grievor is
not capable of returning to work at the present~time. It i.s
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for this reason that the Award is in declaratory form, there
being no request.for back-pay in light of :hc severence payment
to the Grievor and subsequent payment of U.I.C. benefits. There
are issues outstanding with respect to the Griever's entitleme:nt
to benefits under the Collective Agreement arising out of thii
declaration. The Board is to remain seized cf such issues for
180 days from the date of this Award. If the parties are unable
to agree as to the appropriate im?lecentation of benefits for'
the Griever or the implementation of this Award, then either :I ,I
party may, upon written application to the Registrar of the
Grievance Settiement Board, seek the reconvening of this Float-d
for the purposes of making such determinations. If no applica-
tion is brought within the time period stated herein, the Board
will no longer retain jurisdiction to deal with these matters;
DATED at London, Ontario, this 2?
1983.
R. McLaren Vice Cpairman 11
E.R. O'Keily Member