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HomeMy WebLinkAbout1984-0351.Rowley.85-01-03ONTARLO CROWN EMPLOYEES GRIEVANCE ;;E&EMENT Between: Before: IN THE KATTER OF AN ARBITRATION Under THE CROMN EFlPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD CUPE (John Rowley) Grievor - and - The Crown in Right of Ontario Employer (E!inistry of Municipal Affairs and Housing) R. J. Roberts Vice Chairman G. Nabi Member L. D. Foreman Member For the C-rievcr: T. Edwards __- Representative, CUPE For the Employer: V. Osterberger Staff Relations Officer Kinistry of F?unicipal Affairs and Housing Hearings: September 24, 1984 and October 23, 1984 2. AWARD ----- This grievance arises out of the circumstances in which the grievor returned to work following a long-term disability. The grievor, who was a full-time on-site Custodian employed by the Ministry, was not permitted to return to full-time status but was required to take a part-time position. He then filed the grievance leading to the present arbitration. For reasons which follow, this grievance is allowed in part. The evidence at the hearing disclosed that the grievor began employment with the London Housing Authority of the Ministry in December, 1971. Subsequently, on May 24, 1977, he became a full-time on-site Custodian in one of the apartment buildings operated by this Authority. On May 25, 1982, however, the grievor went off on sick leave due to degenerative osteoarthritis of the right knee. This condition rendered the grievor incapable of performing his custodial duties. It seems that at the time, it was not known whether the grievor would be rendered permanently disabled. A short time after the grievor went on sick leave, a new type of surgery was performed on his knee in the hope of correcting the condition. Dr. Grainger, the Surgeon who performed this operation, advised the grievor at the time that there would be no guarantee. The grievor stated that he understood that this was the case. - I 3. About six months after the operation, it seemed that the operation had been a failure. Despite extensive physiotherapy, the grievor's knee did not appear to be healing. The muscle was wasting. The grievor stated, "I asked [Dr. Grainger] what I was up against. . . . He said the outlook was devastating." Meanwhile, the Housing Authority became concerned about the grievor's condition. According to its contractual obligations and practice, the Housing Authority waited for six months before attempting to fill the position that the grievor had occupied. This was the qualifying period for benefits under the Long-term Income Protection Plan which was provided to employees under the Collective Agreement. On December 22, 1982, Mr. T. D. Jones, the,~General Manager of the Housing Authority, sent the following letter to Dr. Grainger: CONFIDENTIAL Dr. R. W. Grainger Orthopedic Surgeon 107-450 Central Avenue London, Ontario Dear Dr. Grainger : Re: Mr. John Rowley 105-200 Berkshire Drive The above named is presently employed by London Housing Authority in the position of Building Custodian. This position requires activities which include twisting, bending and lifting. His present medical condition has resulted in a long absence from his place of employ- ment and his anticipated date of return is unknown. In order that the Housing Authority may be fully-aware of the extent of Mr. Rowley's disability, it would be appreciated if you would provide information on the long term prognosis of the disability and whether or not Mr. Rowley will be able to return to fully perform the duties required by his position. It should be noted that 4. an employee must be able to perform all duties as there is no provision for partial or light duties. It would be appreciated if you could provide the requested information at your earliest convenience. Should you have any questions please do not hesitate to contact me. Thank you in advance for your cooperation in this matter. Yours truly, T. D. Jones, General Manager. Dr. Grainger's response to this inquiry was, "Mr. Rowley's knee disability will probably permanently prevent kneeling and markedly limit stair climbing, and as both are apparently necessary for his employment, I would feel that you would be best advised to consider him permanently unemployable in that form of employment." There seems to be little doubt.that as of late December, 1982, all the parties concerned in this arbitration, including the grievor, believed that his disability would permanently disable him from performing his former duties of Custodian. On January 18, 1983, the grievor began receiving payments under the Long Term Income Protection Plan. Management reviewed the job that the grievor had vacated. It subsequently was posted and filled by another employee, Mr. J. Van Patter. Management did not, however, formally terminate the qrievor. The only consequence to the grievor of going on long-term disability was that he was required to vacate the apartment that had come with his job. In the period January to July, 1983, the grievor continued on the exercise program that had been recommended by Dr. Grainger. In July, the grievor testified, he began to notice some improvement. He began to doubt Dr. Grainger's pessimistic prognosis. On his 5. own, he gradually added more exercises and performed them over a longer period of time. Finally, in late November, 1983, he sought an appointment with Dr. Grainger. The appointment was set for December 16, 1983. During this appointment, the grievor's knee was examined by Dr. Grainger and his Associate, Dr. Lockstadt. According to the grievor, both of these doctors noted considerable improvement in his knee. When they asked how it had occurred, he explained the extra home therapy that he had been doing. The improvement was so remarkable that both doctors agreed that the grievor could return to work to perform his full duties with no restrictions. In response to a request from the qrievor, Dr. Grainger dictated a letter to this effect. Later on the sane day, this dictation was transcribed into the form of a hand-written letter by Dr. Lockstadt. This letter read as follows: Dec. 16/83 Re: John Rowley Mr. Rowley was seen in our clinic today for his CR) Knee, his Knee is now better andmay return to work January 1, 1984. Any further problems, please contact our service. Full duties, no restrictions. H. Lockstadt M.D. for Dr. R. W. Grainger. The letter stated, in essence, that the grievor was cleared to return to work as of January lo, 1984. ,:! . . : 6. On the same day, December 16, 1983, the grievor delivered this letter to Mr. Jones with a carbon copy to the Maintenance Manager of the Housing Authority. According to the grievor, "Mr. Jones was quite surprised. He informed me that nothing was available. He would have to confer with the Ontario Housing Authority. This was the first time that anybody had returned to work off of long-term disability." On December 20, 1983, Mr. Jones wrote the following letter to Dr. Grainger: Dr. R. W. Grainqer Orthopedic Surgeon 107-450 Central Avenue London, Ontario Dear Dr. Grainger: Re: John Rowley I am in receipt of a handwritten letter signed by Dr. H. Lockstadt, on your behalf, in which the above named has been cleared to return to work effective January 1, 1984 with no restrictions to the duties performed. As Mr. Rowley was previously employed by this Authority in the capacity of Building Custodian with a variety of duties involving bending, twisting, kneeling, lifting, the release to full duties is somewhat of a surprise especially when compared to your notations of December 22, 1982 in which you indicated, and I quote, "...per- manently unemployable..." "...permanently pr:vent kneeling and markedly limit stair climbing... . If Mr. Rowley is now able to return to work it would seem more appropriate if he was permitted to be placed on a rehabilitation programme consisting of limited hours of work. Not only would this allow a gradual return to work, but would provide all interested parties an opportunity to assess Mr. Rowley's capabilities under work stress. 7. It would be appreciated if you would review this matter, and advise accordingly as to whether or not you feel the rehabilitation option is, from a medical point of view, a viable one. Thank you for your attention in this matter, and I look forward to your early response. Yours truly, T. D. Jones General Manager The letter described Mr. Jones' surprise in light of the previous indication that the grievor would be permanently disabled and inquired whether it would be appropriate to place the grievor on a rehabilitation program to permit a gradual return to work. By January 3, 1984, Dr. Grainger had yet to respond to this letter, and consequently, Mr. Jones had not been in touch with the grievor. The grievor decided that because he had not heard, he ought,to report for work. When he did so, there was a meeting involving Mr. Jones, the grievbr, and a representative from the Union. On January 12, 1984, Mr. Jones sent to the grievor the following letter: 1984 01 12 Mr. John Rowley 480 Topping Lane London, Ontario Dear Mr. Rowley: Further to our meeting of January 3, 1984, at which time we discussed with your union representative, Mr. Muise, and Maintenance Manager, Mr. Walters, your return to work following your leave under the Long Term Income Protection plan, I would confirm as follows the major topics we discussed. 8. On December 16, 1983, you provided a handwritten letter from your doctor's assistant indicating that your knee was now healed and you were able to return to work on January 1, 1984. As your doctor had previously indicated that you were unemployable, and this letter did not stipulate your ability to fully perform your duties as required by your position description, a letter requesting clarification was forwarded to Dr. Grainer on December 20, 1983. To date, a response to the questions raised and clarification requested has not been received. Until such time as the requested information is provided, the Housing Authority is unable to permit you to return to any form of employment. This delay in return is considered to be for the benefit of all concerned as it is felt that any recurrence of your past problems could result in further difficulties with your knees. I would also confirm at this time that the benefits you are presently receiving from the insurance company will continue and no loss of income should be experienced. Once the doctor's letter has been received, and your suitability for rehabilitation has been determined, arrangements will be made for you to return to work to a position of Casual Permanent employee, working 20 to 30 hours per week. This proposed rehabilitation would provide you with an opportunity to re-enter the workforce and for the insurance company and doctors to fully assess your capabilities of performing full duties, and at the same time provide you with some coverage in the event there is any deterioration of your condition. If the rehabilitation proposal is not a viable one, then we will consider you for employment as a Casual Permanent employee at 20 to 30 hours per week, depending on the vacancy available at that time. You would, of course, only be receiving wages for the number of hours worked. However, the benefits that you have enjoyed in the past as a full-time employee, i.e. pension, medical and dental, would be covered, as your case is an exceptional situation. Your would be considered, through the normal competition route, for a full-time position when one becomes available. I believe that the foregoing covers the main points discussed during our meeting, if however, you have any concerns or questions, please do not hesitate to contact me. Yours truly, T. D. Jones General Manager 9. The letter addressed the concerns of the Housing authority, advised that Dr. Grainger had not yet responded to the Housing Authority"s inquiry, and confirmed an offer that had been made at the meeting regarding either rehabilitative employment or employment as a Casual Permanent employee. Finally, the grievor's knee was examined by Dr. P. O'Neill, the doctor for the Housing Authority. On January 17, 1984, Dr. O'Neill confirmed that the grievor was fit to return to work. It also was confirmed that the grievor did not require to be placed upon any rehabilitative program. Thereafter, on January 24, 1984, Mr. G. A. Walters, the Maintenance Manager for the Housing Authority, offered the.grievor a Casual Permanent position of 30 hours per week with a scheduled starting date of January 30th. The grievor took this position under protest. It was not until October 1, 1984, that the grievor once again became a full-time Custodian. On January 30, 1984, the grievor grieved that Management had violated Article 6.08 of the Collective Agreement when the grievor was required to take a part-time position. Article 6.08 reads as follows: Article 6 - SENIORITY . . . . . 6.08 Seniority as referred to in this agreement shall mean length of continuous service with the Employer and shall be the primary consideration in determining preference or priority for promotion, transfers, demotion, lay-off, permanent reduction of the work force, and recall. In considering candidates for promotion or transfer the Employer may consider qualifications and ability. Where the qualifications and ability of two or more candidates are relatively equal, seniority shall be the.determining factor. 10. It apparently was the position of the Union that pursuant to this Article the grievor ought to have been entitled to bump from the classification of full-time Custodian any one of a number of employees with less seniority than he possessed. When the Authority failed to do so, it‘was contended, a violation of the Collective Agreement occurred. At the hearing, counsel for the Authority submitted that Article 6.08 aid not govern the circumstances of the grievor's return to work. It was submitted that Article 6.08 was specific to promotion, demotion, transfer, lay-off, reduction of the work force and recall. There was nothing in the Article, it was submitted, to require the Authority to give priority to seniority in the case of an employee who was returning after being on long-term disability. It would seem, however, that it would be construing Article 6.08too narrowly to refuse to apply its terms in the circumstances of the grievor in the present case. It was undisputed that throughout his absence due to his disability, the grievor retained his seniority. He was not terminated, even though he might successfully have been terminated after the Authority learned from Dr. Grainger that he should be considered permanently unemploy- able in the classification of Custodian. When the grievor was found to be capable of returning to his former classification _ with no restrictions, his status must be considered to have changed. It changed from that of an employee on long-term disability leave to that of an able-bodied seniority employee seeking return to work. He was in the same position, then, as an employee who had been laid off and was awaiting recall. We see no reason why Article 6.08 of the Collective Agreement should not be construed as applying to this, as well as any other form of recall. There certainly is nothing within the language of the Article from which a more restrictive meaning might be implied. Accordingly, the seniority of the grievor should have been the primary consideration in determining preference with respect to his recall. This means that he should have been returned to work into one of the full-time custodial positions occupied by an employee with less seniority. The grievor should not have been required to return into a part-time position. When the Authority required him to do so, it violated the provisions of Article 6.08 of the Collective Agreement. Some reliance was placed by the Authority upon the following memorandum from the Ontario Housing Corporation: March 7, 1978 Subject: POLICY WITH RESPECT TO EMPLOYEES WISHING TO RETURN TO EMPLO.YMENT SUBSEQUENT TO ABSENCE WITH LONG TERM INCOME PROTECTION There has been cases recently where former employees, having suffered a lengthy period of illness necessitating their claiming Long Term Income Protection, have,recovered to a point where they wished to return to full time employment. This situation requires a clarification of policy.- Positions occupied by permanent employees who are on sick leave cannot be filled permanently until such employees have been absent for six months, the qualifying period for Long Term Income Protection, when they begin to receive thebenefits of that program. Recruitment action may be delayed beyond this six month period if a medical certificate is submitted indicating that the employee will be fit enough to resume employment within an acceptable time frame. If a former employee wishes to return to permanent employment having been absent with Long Term Income Protection and the position, formerly held has been permanently filled, the following are the entitlement, provisions: 1. Appointment to a similar position at the same classification, if available. Remuneration would be at a rate representing the same relative position in the salary range that the employee was receiving prior to being absent. This appointment might be made without holding a formal competition. 2. Where a similar position at the same classification is not available and there is little likelihood of such a position becoming open in the near future, the former employee may be offered a position at a lower level, if available, and be paid at a rate for such position commensurate with qualifications and experience, This appointment would be subject to the individual possessing the necessary skills and demonstrating ability to perform each and every duty of this position. The starting salary would not automatically be at the top of the range. 3. If not successful in one of the two previously mentioned situations, the former employee should be placed on a preferred hiring list for a twelve month period from the date of application to return to full time employment. This preferred status obligates a former employee to accept any offer of employment with the one exception where the individual would be working under the direct supervision of.a person previously supervised, where the refusal on one offer would - be permitted. 13. The employer having.complied with these conditions will not keep the former employee's name on the preferred list, subsequent to the completion of the twelve month period. Individuals would, of course, be eligible to apply for all competitions subsequently being held in the normal way. Under no circumstances may vacancies be created to accommodate an employee returning from absence invo Long Term Income Protection. D. 3. Beesley, P. Eng., General Manager. ving It was submitted that the return to work of the grievor was in keep- ing with the policy outlined in this memorandum, which, inter alia, forbids the creation of a vacancy to accommodate an employee returning from absence due to long-term disability. Even if the above policy had.been binding upon the Union, it does not seem that it would apply to the circumstances of the present case. While there appears to be some ambiguity in the heading and concluding sentence of this memorandumfit seems clear that the entire policy is directed toward the return to work of former employees. The policy might have applied, for example, if the authority had terminated the grievor after receiving advice ;A.,~ . i from Dr. Grainger that he would be permanently disabled. If this termination were upheld in a grievance procedure, the grievor would have lost all seniority under Article 7.01(b) of the Collective Agree- ment which states, "An employee will lose all seniority and employ- ment shall be deemed to be terminated if he/she...is discharge and the discharge is not subsequently reversed by grievance pro- cedures." 14. In the present case, no action was taken by the Authority to cause any loss of seniority to the grievor. Moreover, no provision of the Collective Agreement was brought to the attention of the Board to indicate that seniority or employment status automatically is lost when an employee qualifies for benefits under the Long Term Income Protection Plan. Termination is so drastic a step that it cannot be left to an employee to infer from the circumstances. It certainly is not enough to submit that the employee should have known that this was the case by virtue of the fact that the job he vacated was being filled by another. Turning to the matter of relief, it is noted that the griever requested full redress from January 3, 1984, which was the date upon which he would have returned to work had the Authority had not questioned the letter that Dr. Lockstadt had signed on behalf of Dr. Grainger. It is the view of the Board, however, that in the circumstances the Authority was justified in seeking clarification of Dr. Grainger and confirmation that the grievor was, indeed, fit immediately to return to the full scope of his duties without an initial period of rehabilitation. According to the evidence, this process was not completed until January 17, 1984. Moreover, the delay did not appear to have resulted from any lack of due diligence on behalf of the Authority. in these circumstances, the earliest date upon which the griever could have been expected to return to work would have been January 18. 1984, and it is from this date that redress should be -calculated. 15. The grievance is allowed in part. The grievor should have been reinstated into a full-time Custodial position as of January 18, 1984. He is to be compensated for all wages and benefits that were lost by virtue of the fact that he did not return to full-time employment until October 1, 1984. The Board recognizes that there may be some complex calculations involved in making the grievor whole in this fashion. For example, the evidence indicated that the grievor was'in receipt of long-term disability payments until January 30, 1984. In order to permit account to be taken of this and other relevant considerations, the matter is remitted to the parties for disposition in a manner consistent with the terms of this award. The Board will retain jurisdiction pending this determination. DATED at London, Ontario, this 3r d day of January, 1985. --v J. Roberts, Chairman L. D. Foreman, Member .