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HomeMy WebLinkAbout1984-0363.Themeliopoulos.84-11-21363/84 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Between: Before THE GRIEVANCE SETTLEMENT BOARD .OLBEU (S.'Themeliopoulos) Before: -and- ,,“-, The Crown in Right of Ontario (Liquor Control Board of Ontario) J.W. Samuels Vice-Chairman P. Craven Member E.R. O'Kelly Member Grievor Emp 1 oyer For the Grievor: M. Levinson, Counsel Koskie & Minsky Barristers &.Solicitors For the Employer: D. Brady, Counsel Hicks Morley Hamilton Stewart Storie Barristers & Solicitors Hearings: J. Chaykowsky, Classification Officer Ontario Liquor Boards Employees' Union R.M. MacDougall, Staff Relations Officer Liquor Control Board of Ontario July 26, September 24, October 22, 1984 . . . 2 DECISIOJ On April 2, 1984, the grlevor was discharged from his job as a full-time Clerk 3 because he had ‘improperly and fraudulently accepted pay for attendance credits while capable of performing regular duties’. In short, at our hearing, it was alleged that he had taken sick benefits while not disabled after going off sick on February 21, 1964, and in particular had continued working in a physically demanding second job at Canada Post during the time he was off from the LCBO. The grievor argues that the discharge is without just cause, and that he was in fact disabled at the time. The grievor has been a clerk with the LCBO since November 1973. In the summer of 1976, he commenced a regular part-time job at Canada Post. Apparently the LCBO job ended at 6PM each day, and the Canada Post job began at the very same tlme. How the grievor ever managed to work his full shift at the LCE!O and then be on time at Canada Post is a mystery. In any event, it must be made clear that he is not being disciplined for having the two jobs. Our hearing took three days and we heard considerable evidence concemfng the grievor’s medical condition, his job at the LCBO, and his job at Canada Post. It would be useful to summarize the evidence on these three matters. It would appear from testlmony of the grievor and persons who have seen him at work, and from several doctor’s certlflcates introduced in evidence, that the grievor has a long-standing left elbow problem, i _ i’ _.. 3 which from time to time will give him pain when lifting, or performing’ other actions. To the layman, it is obvious that.the grievor’s left elbow is deformed. The most detailed description of his condition is found in a letter dated September 7, 1984, from Dr. I. J. Harrington, who examined the grievor on March 8, 1984. Dr:Harrington reported that. the grievor stated he experienced increased “elbow discomfort’ for, the four months before the examination, though there had always been some minor degree of elbow. discomfort. The doctor’s examination disclosed a limited range of elbow movement (the grievor could not straighten his arm all the way, and could only flex it to the 90’ position), normal rotational movements, smooth joint movement, some excess bone growth in the elbow area of the upper arm, and no abnormalities of the nerve or blood vessels. A review of X-rays showed marked disorganization’of the left elbow joint, with a number of excess bone formations. The grievor’s condition is degenerative osteo-arthritis following an injury when he was 9 years old. The doctor recommended that nothing should be done for the elbow, such as surgery. The best solution was “to try and restrict his lifting activites at work if this was at all possible”. The result of all of this is that it appears that the grievor has a life-long condition which is not disabling, but will bother him more or less from time to time. # He is now 44 years old, and has demonstrated the ability to work long hours at two physically demanding jobs. The question of whether or not the grievor can perform his job at any particular time iS a matter entirely within the grievor’s control. Only he can tell us whether or not he is experiencing so much pain that, at the time, it is not possible .- 4 for him to do the required tasks. , This leads us to a difficult problem. At our hearing, it became obvious that often the grievor will not tell the truth. In particular, in 1983, he testified under oath before an arbitrator who was to decide whether or not his discharge from Canada Post in March 1983 was justified. While we ruled that we are not bound by the findings of fact made by the arbitrator, we permitted counsel for the LCBO to ask the grievor about statements recorded in the award. He acknowledged before us that his testimony was false concerning a number of significant matters. He had testified that he intended to quit and then did quit his job at the LCBO, and this led the arbitrator to conclude that he had quit his job at the LCBO in June 1983. This was perjury. In fact, he had continued to work at the LC80 until early 1984, when he went off sick and then was discharged. We find that, on several occasions, he told his superiors at the LCBO that he did not work at Canada Post, when in fact he was working there (in 1982, he told this to Mr. W. Silk, his new store Manager; and in March 1984, he made the same misrepresentation to Mr. M. Fernandes, the LCBO Supervisor for District 14, which includes the grievor’s store). And, on March 19, 1984, he wrote to Mr. F. 8. Rankin, the Director of Store Operations for the LCBO, and described his job at Canada Post as ‘Very light work which involves no lifting and constitutes primarily of fIIanUally sorting mail which is placed before me in a tray and which I do frOmI a seated position”. This description of the Canada Post job is far frOmi accurate. In short, we find the grievor to be a man who turns easily to falsehood, and we simply don’t believe his own evidence about his elbow’s condition from time to time. But let us turn to his two jobs. We heard about the grievor’s job at the LCBO from Mr. W. Silk (the Manager in the grievor’s store at the time of his discharge), M. Sullivan (President of the Union for 3 years, and had been employed in jobs similar, to the griever’s), and from the grievor himself. As well, we had a copy of the classification specifications for the Clerk 3. From this evidence, it appears that the grievor did general duties around the store, together with the Manager, a Clerk 4 (who was primarily responsible for keeping the books, a job which took 30 to 40 minutes per day), another Clerk 3, and part-time help. He would spend his time taking cash, stocking shelves, doing various office tasks, and unloading trucks. This latter task occurred on Friday afternoons, and in early 1984 there were always two part-time people to help. These part-timers were described by Mr. Silk as “young fellows who did the heavy slugging”. In particular, we find that the grievor would have to lift cases of liquor,, weighing 50 pounds and upwards, on a regular basis. JHF GRWOWS Jf!B AT CANADA WST We heard about the grievor’s job at Canada Post from Mr. R. A Peaker (his supervisor), Mr. B. Bernikier (a co-worker), and the grievor hjmself. As well, we had a copy of the position description. From this evidence, it appears that the grievor is a part-time mail handler, classified as a P02, working from 6 to.lOPM each week night. During the time he was off sick from the LCBO, he worked in . 6 “forward consolidation’, which required him to take trays or tubs filled with mail from a waist-high conveyor belt and carry them four feet to a shoulder-high storage conveyor. These containers weigh around 20 pounds when filled. It was steady work, with a moderate peak at around 7:3OPM, and then another around I OFM. The grievor also worked at the empty bag chute. There are four six-foot wide chutes, down which come empty mail bags. There can be 100 bags at a time stacked up in a chute. The employee is required to pull out each bag from the waist-high chute (and this can require a fair degree of force if the chute is full), take the labels off, search for remaining mail, and pile the bag on a skid on the floor. Finally, the grievor worked in the parcel area. The parcels arrive fn four-foot cube cages, and they are sorted into other cages labelled with the destinations. The mail handlers take the parcels from the first cage, and throw them in the appropriate destination cage. The parcels weigh from very little to upwards of 50 pounds, but the great bulk of the parcels are ‘light’. The destination cages are from a few feet to eight feet away. The cage walls are shoulder high, but when there is little in a cage, the employees may let down the side wall to a height of around two feet for easier access. In some cases, the parcels arrive in’the original cage in bags and the handlers either empty the bags into the cage and then sort, or they take the parcels out of the bags one by one for sorting. These bags may weigh around 60 pounds. On occasion, a handler will have to drag a loaded bag. When the destination cages are filled, they are pushed or Pulled by the mail handlers some IO0 feet to the bag rack, where the final sort is done by other employees, It appears that the grievoris a good worker at Canada Post, pulling his weight in al? of the required tasks. We find that he had to engage in constant movement; lifting and tossing trays, tubs, bags, or parcels of various weights; pushing carts; and inevitably using his left arm. Having considered all of the evidence, we find that the grievor has a life-long degenerative deformity of his left elbow. There is little doubt that it would cause pain from time to time. However, this has not stopped the griever, from engaging in work requiring significant physical effort, and undertaking two jobs running some twelve hours per day: There is nothing in the medical evidence to indicate that the grievor could not do the work at the LCBO during the time he was booked off sick. This ,determination depends on the grievor’s own report of the discomfort he was experiencing from his elbow. In our view, bearing in mind the physical demands of the. job at the Canada Post which he continued to do, and our serious doubts about the grievor’s credibility, we find that he was not disabled from doing the LCBO job at the time. He did indeed “improperly and fraudulently accept pay for attendance credits while capable of performing regular duties”. Turning to the grievor’s previous discip~linary record, on July 18, 1980, he received a written warning for leaving the store without permission during working hours; on September 2 I, I98 I, he was suspended without pay for one day for failing to report to work and making no contact; on November 2, I98 I, he was suspended for one day for failing 8 to ring a transaction through the cash register: and on February 22, 1982, we find a suspension of ten days without pay and a final warning for absence from work without reason. In these circumstances, discharge is now an appropriate penalty. We aremindful ofthefactthatthegrievordoesappeartobetheprovider for a number of his own children and various relatives. However, his conduct has led to a serious break in the trust which must repose in an employee, and the LCD0 should not be made to continue his employment. For these reasons, the grievance is dismissed. Done at London, Ontario, this 21st day of November 1984. dissent to follow P. Craven, Member E. R. O’Kelly, Member