HomeMy WebLinkAbout1984-0112.Dunn.84-09-061984 - OPSEU (Dunn) & Ministry of Health, GSB#112/84, (Jolliffe)
?--ON7&WO CROWN EMPLOYEES GRIEVANCE SS;bEMENT IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD Between: Before:
OPSEU.(Gerald Dunn) Grievor -and -The Crown in Right of Ontario (Ministry of Health) Employer E. B. Jolliffe, Q.C. Vice Chairman J. Best #ember G, A. Peckham Member For the Grievor:
E. J. Shilton-Lennon, Counsel Cavalluzzo, Hayes & Lennon Barristers & Solicitors For the Employer: S. Asselstine Regi~onal Personnel Administrator MiniStry of Health 'Hearing: July 18,
1984
-l-DECISION Mr. Gerald Dunn is a Cleaner 2 at the hospital in Kingston maintained by the Ministry of Health. On November 11, 1983, he presented the following grievance: I grieve that
I have been arbitrarily denied 8 hrs. pay under Article 51 (Short Term Sickness Plan) of the Collective Agreement. The "Settlement Required" by the griever was stated as follows: That
I be reimbursed 8 hrs pay and the reprimand be removed from my file. AS appears from the text quoted above, this is a ~-grievance alleging a breach of Article 51, a contract grievance,
and also a grievance against a reprimand, which raises a disciplinary issue. Nevertheless, the griever's . counsel, MS. Shilton-Lennon, proceeded first with her.only . witness, the griever.
The facts in this case are relatively simple, although there is some conflict or inconsistencyin certain evidence ---not, however, about the principal issue. That
;. -2 -issue is whether the griever was disciplined without just cause when reprimanded and denied sick leave for one day. In light of that issue, the onus was on the employer to prove
misconduct on the part of the employee. The relevant provision in the collective agreement . . . . . between !Management Board ~' of Cabinet and OPSEU is Article 51.1: An employee who
is unable to attend to his duties due to sickness or injury is entitled to leave-of-absence with pay as follows: (i) with regular salary for the first six (6) working days of absence;
(ii) with seventy-five percent (75%) of regular salary for an additional one hundred and twenty four -%24) working days of absence, .~ in each calendar year. There is no doubt whatever
that if an employee claims sick leave under Article 51.1 whenin fact he has been not entitled to receive. absent for some other reason, the employee is guilty of serious misconduct.
It is an attempt to obtain money he is ..~’ The question to be determined here is whether management was right in believing or suspecting that the griever falsified his explanation for
an absence from work on
-3 -Thursday, October 20. An associated questio'n is whether the employer was justified in relying almost entirely on a belief or suspicion. At about 3 p.m. on Friday,.October 21, the
griever : was called to the office of Mr. T.G. Boyd, who has supervised the grievor for the past 17 years. He asked the reason for ,the absence of the previous day. The griever's explanation
was that while returning from a funeral in New York on :-Wednesday, October 19, which was a day off for him (a "lieu ,d~:a . y") the had lost a filling from a molar tooth, which caused
such pain that he had no more than two hours of sleep that night. He could not get transportation to visit his dentist until 1.30 p.m. on Thursday, and,the pain he had endured and ,_:<
the resulting loss of sleep rendered him unable to work that "-day . This is~ the same explanation as that given by the griever in his testimony before this Board. Mr. Boyd did not believe
the explanation. His reason was information received from Mr. Ken Smith, the H. ospital's Financial Officer, that the griever had obtained -an advanceon salary prior to going to New
York and did not expect to be back on October 20. Mr. Boyd testified that "because of what Smith had told me," he decided the griever
-4 -was not really disabled on October 20; he thought the absence was "pre-determined." Cross-examined, Mr. Boyd said: "I never indicated to him I didn't believe his story. He had not
asked me for two days, I would have given the second day for sufficient cause. It would be leave without pay ---I could not have granted bereavement leave or compassionate leave." Mr.
Boyd's last statement suggests some confusion about the facts. There was never any question of a "second day" of leave. The griever's uncontradicted evidence is that Monday and Tuesday
were his regular days off. He had a "lieu day" due to him (presumably as the result of having worked on a holiday) so that he obtained permission to take it on Wednesday, October 19.
Thus there was no "second day" of leave; the only leave sought was for Thursday, October 20. On his part, Mr. Ken Smith said the griever came to see him on Tuesday, May 18, and asked
for an advance.in pay. There was a "di,rective" to,the effect that cheques were not to ., be issued in advance except in "special circumstances." He thought this meant a 'Ifamily emergency
or vacations." He therefore asked the grievor if he would be back Thursday; Mr. Dunn said "it would be doubtful." This was the information he later conveyed to Mr. Boyd, who confirmed
that
-5 -the grievor would be attending a funeral in New York but did not mention Thursday. It is apparent that Mr. Boyd assumed the grievor would be back Thursday for a scheduled work d=y
from 7 a.m-. to 3.15 p.m.: Mr. Smith was not sure. In cross-examination, however, --:Mr. Smith~'s testimony became a little different. He said "I phoned Boyd because of rising suspicions.
Dunn had told me he didn't expect to be in Thursday. Boyd said he was expected Thursday." Mr. Smith admitted, however, it was "possible I might be confusing the phone call with another
occasion." 'He did not make clear whether this was a reference to his conversation with Mr. Boyd or to a telephone call the grievor says he had made to MrFSmith on October 18. The grievor's
version is that he had on previous occasions received pay In advances ---for example to by ~. medication for his children. He was not aware, he said, of any rule that one must be absent
on pay-day to qualify for an advance. On learning that his family would be driving to New York to attend a funeral on Wednesday, he arranged for the ~_.,~. lieu day and. telephoned Mr.
Smith to~ask for an advance. He did this on the telephone because Mr. Smith was engaged i n other business when he went to the office. On being asked J about Thursday, he said. he expected
to be back, but there was
-6-always the possibility of a car breakdown. Mr. Smith granted his request; on returning to the office he received a cheque from one of the clerks. It was post-dated but his bank accepted
it by allowing a temporary overdraft. The grievor then gave his account of the misadventure wh'ile returning from Ne~w York. He said he reached his home by 10 p.m. Wednesday, but the
toothache was severe. At 6.30 a.m. Thursday he called Ms. Elizabeth Mahoney at the hospital to explain he could not' work that day. According to him, she said "it was OK." The grievor's
account of his interview with Mr : Boyd on October 21 was not quite the same as the Boyd version. "He said he had heard I said I would "~. be away Thurs.day. He was giving me a reprimand
and taking away a day's pay. He said if I kept it,up it would lead to dismissal. He did note ask me for a note ---there was no suggestion I hadn't been at the dentist's." The grievor
further testified he knew some employees were on the "mandatory list," and he had been on it himself in -1979, but not in 1983. This was a reference to Article 51.10 in the agreement,
which is as follows: . . After. five (5) days' absence caused by sickness, no leave with pay shall be allowed unless a certificate of a legally qualified medical practitioner is forwarded
to
-7-the Deputy Minister of the ministry, certifying that the employee is unable to attend to his official duties. Notwithstanding this provision, where it is suspected that there may
be an abuse of sick leave, the Deputy Minister or his designee may require an employee to submit a medical certificate for a period of absence of less than five (5) days. Cross-examined,
Mr. Dunn denied he had told Mr. Smith he would not be back at work Thursday. On Thursday morning he had to wait for a relative's car before he could go to. the dentist's office, several
miles away. He did.not telephone the dentist for an appointment, knowing he would be taken care of in an emergency, as he was at 1.30 p.m. The dentist, a Dr. Turner, did not charge for
replacing the filling, which took only a ~few minutes. The griever insisted he could not have done his work Thursday morning when he was still suffering .from toothache. Normally he
hitches a ride to work, but can walk to the hospital in about 25 minutes. Since 1982, he has been late only once. October 20; he said, was his 10th day of sick leave in 1983. In other
words, he had averaged one day per month. Ms. Eleanor M. Healey, who works in the office for Mr. Smith, also testified. She confirmed Mr.Smith's statement that the grievor~':came to
the office on October 18, and Mr. '-I:: ,~.i Smith told her a cheque was to be released. She herself gave
-8 -it to the grievor. The difficulty with this evidence ---if it has any importance at all ---is that Ms. Healey also said "Yes, he's had advances before ---it had happened three or
four times in 1983." She had been approached "last Thursday" to testify. It is obvious that between ,October, 1983, and July, 1984, she gave the matter no more thought and had no reason
to remember the details, particularly since she had been authorized on several occasions in 1983 to give the: griever a pay cheque in advance. It is not suggested that either Mr. Smith
or Ms. Healey had any intention to mislead, but they had little cause to recall the exact details of wh,at was for them a rather commonplace incident. For the griever, on the other hand,
it wasan important event, having regard to the penalt~y'imposed by Mr. Boyd on October 21. Thereafter it bulked large in his mind. In argument, ,Mr. Asselstine emphasized the employer's
opinion that the griever was "not credible." Perhaps that view was based on Mr. Boyd's former experience, particularly in' 1979 when ---as the griever has said ---he was"on the mandatory
list under Article 51.10, being an employee suspected of abusing sick leave. The experience four years ago was not an adequate reason for disbelieving the grievor's-explanation in October
of 1983. Moreover, if Mr. Boyd suspected another abuse of sick leave by reason of
-9-the absence on October 20, the remedy was to be found in Article 51.10, not in imposing a penalty for a suspected but unproven offence. The griever received more than a reprimand;.
he was deprived of a day's pay. The onus was on the employer to establish just cause for such discipline. This the employer has failed to do. Mere suspicion is not prOOf; it is not even
evidence. It may be that the grievor was a little vague in his conversation' with Mr. Smith on Octbber 18; Mr. Smith himself was less 'than precise in the somewhat inconsistent and varying
versions he gave of that conversation. It would be natural, however, for the grievor to be vague, since his family proposed to drive to New York for a funeral ---a considerable distance.
As for the toothache, the employer made no attempt whatever to prove it untrue. If the griever did not require dental care at 1.30 p.m. on Thursday, the dentist could have been called
to say so. Mr _ Asselstine conceded ---from experience ---that a toothache can be very painful indeed, and his experience is far from unique. He also argued, however, that "there's not
sufficient proof of being unable to work."
-10 -The last point obliges the Board to remind all concerned that in a disciplinary case the onus of proof is on the employer, not the employee. Consistent with the principle now enshrined
in the Charter of Rights, an employee is not required to prove he is ,innoncent of, wrongdoing. Until significant evidence is advanced against him , he is not obliged to prove anything
at all. The Board is well aware that certain individuals hav'e an extremely casual and light-hearted attitude toward sick leave. There are those who think that they are entitled to take
time off in the guise of "sick leave," even if they ~. have never felt better in their lives. The reality is that using sick leave for no legitimate reason is a . form 0.f fraud, because
it means taking money from the.employer by false pretences. That is a crime under the Criminal Code. A crime is a crime, even if it seldom ---if ever ---reaches a criminal court. The
practice mentioned above is euphemistical described in Article 51.10 as "Ann abuse of sick leave 1 Y II Regardless of euphemisms, it constitutes grave" misconduct; It is therefore wrong
to find an employee guilty of such misconduct and to impose a disciplinary penalty when adequate .evidence is lacking. The parties have agreed that mandatory medical cert~ification is
the course to follow when abuse is
-11 -"suspected." That is the proper course, not the arbitrary use of disciplinary action. If abuse is provable, discipline then becomes appropriate. In this case there was no just cause
for a decision that the griever had attempted to defraud the employer by claiming sick leave for one day. His day off on October 20, 1983, shall be allowed as sick leave and one day's
pay restored to hirn:~ The reprimand shall also be removed from his file. This grievance is upheld. Dated at Rockwood, Ontario, this 6th day of September, 1984. EBJ:sol e Chairman
-l-
DECISION
Mr. Gerald Dunn is a Cleaner 2 at the hospital in
Kingston maintained by the Ministry of Health. On November
11, 1983, he presented the following grievance:
I grieve that I have been arbitrarily denied 8 hrs.
pay under Article 51 (Short Term Sickness Plan) of the
Collective Agreement.
The "Settlement Required" by the griever was stated
as follows:
That I be reimbursed 8 hrs pay and the reprimand be
removed from my file.
AS appears from the text quoted above, this is a
~-grievance alleging a breach of Article 51, a contract
grievance, and also a grievance against a reprimand, which
raises a disciplinary issue. Nevertheless, the griever's .
counsel, MS. Shilton-Lennon, proceeded first with her.only . .
witness, the griever.
The facts in this case are relatively simple,
although there is some conflict or inconsistencyin certain
evidence --- not, however, about the principal issue. That
;.
- 2 -
issue is whether the griever was disciplined without just
cause when reprimanded and denied sick leave for one day. In
light of that issue, the onus was on the employer to prove
misconduct on the part of the employee.
The relevant provision in the collective agreement
. . . . . . between !Management Board ~' of Cabinet and OPSEU is Article
51.1:
An employee who is unable to attend to his duties due to
sickness or injury is entitled to leave-of-absence with
pay as follows:
(i) with regular salary for the first six (6) working
days of absence;
(ii) with seventy-five percent (75%) of regular salary
for an additional one hundred and twenty four -%24)
working days of absence,
in each calendar year. .~
There is no doubt whatever that if an employee
claims sick leave under Article 51.1 whenin fact he has been
not entitled to receive.
absent for some other reason, the employee is guilty of
serious misconduct. It is an attempt to obtain money he is
..~’
The question to be determined here is whether
management was right in believing or suspecting that the
griever falsified his explanation for an absence from work on
- 3 -
Thursday, October 20. An associated questio'n is whether the
employer was justified in relying almost entirely on a belief
or suspicion.
At about 3 p.m. on Friday,.October 21, the griever
:
was called to the office of Mr. T.G. Boyd, who has supervised
the grievor for the past 17 years. He asked the reason for
,the absence of the previous day. The griever's explanation
was that while returning from a funeral in New
York on :-
Wednesday, October 19, which was a day off for him (a "lieu
day") the had lost a filling from a molar tooth, which caused ,~. :
such pain that he had no more than two hours of sleep that
night. He could not get transportation to visit his dentist
until 1.30 p.m. on Thursday, and,the pain he had endured and
,_:<
the resulting loss of sleep rendered him unable to work that
"-day . This is~ the same explanation as that given by the
griever in his testimony before this Board.
Mr. Boyd did not believe the explanation. His
reason was information received from Mr. Ken Smith, the
Hospital's Financial Officer, that the griever had obtained .
-an advanceon salary prior to going to New York and did not
expect to be back on October 20. Mr. Boyd testified that
"because of what Smith had told me," he decided the griever
- 4 -
was not really disabled on October 20; he thought the absence
was "pre-determined."
Cross-examined, Mr. Boyd said: "I never indicated
to him I didn't believe his story. He had not asked me for
two days, I would have given the second day for sufficient
cause. It would be leave without pay --- I could not have
granted bereavement leave or compassionate leave."
Mr. Boyd's last statement suggests some confusion
about the facts. There was never any question of a "second
day" of leave. The griever's uncontradicted evidence is that
Monday and Tuesday were his regular days off. He had a "lieu
day" due to him (presumably as the result of having worked on
a holiday) so that he obtained permission to take it on
Wednesday, October 19. Thus there was no "second day" of
leave; the only leave sought was for Thursday, October 20.
On his part, Mr. Ken Smith said the griever came to
see him on Tuesday, May 18, and asked for an advance.in pay.
There was a "di,rective" to,the effect that cheques were not
to be issued in advance except in "special circumstances." .,
He thought this meant a 'Ifamily emergency or vacations." He
therefore asked the grievor if he would be back Thursday;
Mr. Dunn said "it would be doubtful." This was the
information he later conveyed to Mr. Boyd, who confirmed that
-5 -
the grievor would be attending a funeral in New York but did
not mention Thursday. It is apparent that Mr. Boyd assumed
the grievor would be back Thursday for a scheduled work d=y
from 7 a.m-. to 3.15 p.m.: Mr. Smith was not sure.
In cross-examination, however, --:Mr. Smith~'s
testimony became a little different. He said "I phoned Boyd
because of rising suspicions. Dunn had told me he didn't
expect to be in Thursday. Boyd said he was expected
Thursday." Mr. Smith admitted, however, it was "possible I
might be confusing the phone call with another occasion." 'He
did not make clear whether this was a reference to his
conversation with Mr. Boyd or to a telephone call the grievor
says he had made to MrFSmith on October 18.
The grievor's version is that he had on previous
occasions received pay In advances --- for example to by ~.
medication for his children. He was not aware, he said, of
any rule that one must be absent on pay-day to qualify for an
advance. On learning that his family would be driving to New
York to attend a funeral on Wednesday, he arranged for the
~_.,~.
lieu day and. telephoned Mr. Smith to~ask for an advance. He
did this on the telephone because Mr. Smith was engaged i n
other business when he went to the office. On being asked J
about Thursday, he said. he expected to be back, but there was
-6-
always the possibility of a car breakdown. Mr. Smith granted
his request; on returning to the office he received a cheque
from one of the clerks. It was post-dated but his bank
accepted it by allowing a temporary overdraft.
The grievor then gave his account of the
misadventure wh'ile returning from Ne~w York. He said he
reached his home by 10 p.m. Wednesday, but the toothache was
severe. At 6.30 a.m. Thursday he called Ms. Elizabeth
Mahoney at the hospital to explain he could not' work that
day. According to him, she said "it was OK."
The grievor's account of his interview with Mr :
Boyd on October 21 was not quite the same as the Boyd
version. "He said he had heard I said I would "~. be away
Thurs.day. He was giving me a reprimand and taking away a
day's pay. He said if I kept it,up it would lead to
dismissal. He did note ask me for a note --- there was no
suggestion I hadn't been at the dentist's." The grievor
further testified he knew some employees were on the
"mandatory list," and he had been on it himself in -1979, but
not in 1983. This was a reference to Article 51.10 in the
agreement, which is as follows:
. . . After. five (5) days' absence caused by sickness, no
leave with pay shall be allowed unless a certificate of
a legally qualified medical practitioner is forwarded to
-7-
the Deputy Minister of the ministry, certifying that the
employee is unable to attend to his official duties.
Notwithstanding this provision, where it is suspected
that there may be an abuse of sick leave, the Deputy
Minister or his designee may require an employee to
submit a medical certificate for a period of absence of
less than five (5) days.
Cross-examined, Mr. Dunn denied he had told Mr.
Smith he would not be back at work Thursday. On Thursday
morning he had to wait for a relative's car before he could
go to. the dentist's office, several miles away. He did.not
telephone the dentist for an appointment, knowing he would be
taken care of in an emergency, as he was at 1.30 p.m. The
dentist, a Dr. Turner, did not charge for replacing the
filling, which took only a ~few minutes.
The griever insisted he could not have done his
work Thursday morning when he was still suffering .from
toothache. Normally he hitches a ride to work, but can walk
to the hospital in about 25 minutes. Since 1982, he has been
late only once. October 20; he said, was his 10th day of
sick leave in 1983. In other words, he had averaged one day
per month.
Ms. Eleanor M. Healey, who works in the office for
Mr. Smith, also testified. She confirmed Mr.Smith's statement
that the grievor~':came to the office on October 18, and Mr. '- I:: ,~.i
Smith told her a cheque was to be released. She herself gave
-8 -
it to the grievor. The difficulty with this evidence --- if
it has any importance at all --- is that Ms. Healey also said
"Yes, he's had advances before --- it had happened three or
four times in 1983." She had been approached "last Thursday"
to testify. It is obvious that between ,October, 1983, and
July, 1984, she gave the matter no more thought and had no
reason to remember the details, particularly since she had
been authorized on several occasions in 1983 to give the:
griever a pay cheque in advance. It is not suggested that
either Mr. Smith or Ms. Healey had any intention to mislead,
but they had little cause to recall the exact details of wh,at
was for them a rather commonplace incident. For the griever,
on the other hand, it wasan important event, having regard
to the penalt~y'imposed by Mr. Boyd on October 21. Thereafter
it bulked large in his mind.
In argument, ,Mr. Asselstine emphasized the
employer's opinion that the griever was "not credible."
Perhaps that view was based on Mr. Boyd's former experience,
particularly in' 1979 when --- as the griever has said --- he
was"on the mandatory list under Article 51.10, being an
employee suspected of abusing sick leave. The experience
four years ago was not an adequate reason for disbelieving
the grievor's-explanation in October of 1983. Moreover, if
Mr. Boyd suspected another abuse of sick leave by reason of
-9-
the absence on October 20, the remedy was to be found in
Article 51.10, not in imposing a penalty for a suspected but
unproven offence.
The griever received more than a reprimand;. he was
deprived of a day's pay. The onus was on the employer to
establish just cause for such discipline. This the employer
has failed to do. Mere suspicion is not prOOf; it is not
even evidence.
It may be that the grievor was a little vague in
his conversation' with Mr. Smith on Octbber 18; Mr. Smith
himself was less 'than precise in the somewhat inconsistent
and varying versions he gave of that conversation. It would
be natural, however, for the grievor to be vague, since his
family proposed to drive to New York for a funeral --- a
considerable distance.
As for the toothache, the employer made no attempt
whatever to prove it untrue. If the griever did not require
dental care at 1.30 p.m. on Thursday, the dentist could have
been called to say so. Mr _ Asselstine conceded --- from
experience --- that a toothache can be very painful indeed,
and his experience is far from unique. He also argued,
however, that "there's not sufficient proof of being unable
to work."
- 10 -
The last point obliges the Board to remind all
concerned that in a disciplinary case the onus of proof is on
the employer, not the employee. Consistent with the
principle now enshrined in the Charter of Rights, an employee
is not required to prove he is ,innoncent of, wrongdoing.
Until significant evidence is advanced against him , he is not
obliged to prove anything at all.
The Board is well aware that certain individuals
hav'e an extremely casual and light-hearted attitude toward
sick leave. There are those who think that they are entitled
to take time off in the guise of "sick leave," even if they
~. have never felt better in their lives. The reality is that
using sick leave for no legitimate reason is a form 0.f .
fraud, because it means taking money from the.employer by
false pretences. That is a crime under the Criminal Code. A
crime is a crime, even if it seldom --- if ever --- reaches a
criminal court.
The practice mentioned above is euphemistical
described in Article 51.10 as "Ann abuse of sick leave
1 Y
II
Regardless of euphemisms, it constitutes grave" misconduct;
It is therefore wrong to find an employee guilty of such
misconduct and to impose a disciplinary penalty when adequate
.evidence is lacking. The parties have agreed that mandatory
medical cert~ification is the course to follow when abuse is
- 11 -
"suspected." That is the proper course, not the arbitrary
use of disciplinary action. If abuse is provable, discipline
then becomes appropriate.
In this case there was no just cause for a decision
that the griever had attempted to defraud the employer by
claiming sick leave for one day. His day off on October 20,
1983, shall be allowed as sick leave and one day's pay
restored to hirn:~ The reprimand shall also be removed from
his file. This grievance is upheld.
Dated at Rockwood, Ontario, this 6th day of September,
1984.
EBJ:sol
e Chairman