HomeMy WebLinkAbout1984-0783.Cardone.85-11-13TELEP”O”EI rra/soe- Lw.9.5
783/84
IN THE MAlTER OF AN ARBITRATION
Under
THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT
Before: -~
CUPE 767 (Cardone)
Grievor
- and -
The Crown in Right of Ontario
(Ministry of Municipal Affairs and Housing)
Employer
For the Grievor:
For the Employer:
Hearinq:
J. W. Samuels Vice Chairman
I. Freedman Member
A. G. Stapleton Member
T. Edwards
C.U.P.E. 767
A. P. Tarasuk
counsel
Central Ontario Industrial Relations Institute
May 23, 1985
July 11, 1985
October lo, 1985
/
The grievor’s employment with the Metropolitan Toronto Housing
Authority was terminated on August 24, 1984. He had been in the employ of
the Authority SlnCe November 1974, first as a labourer and then as a
caretaker. Unfortunately, the grievor had the misfortune of being absent on
numerous occasions, sometimes for lengthy periods, due to sickness and
compensable tnjury. Over the five calendar years before hls termlnatlon, hls
attendance record was dismal. In 1980, he missed 14.55% of the working
days available to him during the year. In 1981, his absence rate was
17.61%; in 1982, 13.08%; in 1983, ,94.51%; and in 1984 to the date of
termination, 41.81%. His final absence was related to an injury to his back
on August 2, 1984. HIS employment was termlnated for innocent
absenteeism.
The letter of termination of August 23, 1984, from Mr. D. G. Wells, the
Authorlty’s General Manager, read:
In reviewing your absenteeism record since your date~of commencement of employment,, November 5, 1974,'I note that * you have been unable to sustain an acceptable level of
attendance. Also ,. in the past two years your attendance . has deteriorated substantially.
In a letter dated September 14, 1903 from S. Nugent, Senior Project Manager, you were advised that your level of absentee-
ism was ~unacceptable and that if your.at.tendance ,did not improve to an acceptable level within'a reasonable period
of time, the Authority would consider releasing you from employment for no,n-availability of work.
You were absent from January 20, 1983 to June 26, 1983 .~.
and from August 4, 1983 through March 2, 1984. Your most,
recent absence commencing August 2;1984 and .lasting to
present. Additionally you produced a medical.certificate
dated August 8, 1984 in which Dr. Astaphan indicates that
you are disabled and a return to .work date is unknown
at this time.
In view of your excessive absenteeism and unavailability
fqr..work- an-d..your_.i.nab~lity_..t.o return to regular employment --for an indefinite period as evidenced by your Doctor's certificate we can only presume that you are unable to
meet reasonable expectations of availability of work.
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Therefore, please be advised that your employment with the Metropolitan Toronto Housing Authority is terminated
effective August.24:.1984.
At our hearing, the grievor testified that, because of the nature of the
injury to NS back, neck and head, he dldn’t think he would ever get better.
This self-diagnosis is echoed in the medical report prepared by Dr. G.
D’Onofrio, of May 7, 1985. The physician says that the grievor ‘1s considered
totally dtsabled’, and this 1s based not only on hls own flndlngs, but also on
the re-assessment by orthipaedic surgeons. We heard no evidence
whatsoever to suggest that the grievor will ever be able to work again for
the Authority.
There is no doubt that the arbitral jurisprudence supports termination
for innocent absenteelsm when an employee’s record and the prognosls for
the future indicate that the employer can longer expectregularattendance
in the future--see Suppa, G.SB 766/&f, at pages 1 l- 12; and in general,
Brown and Beatty, Canadlafl Labour AM/Ration (2nd edltlon, 19841, at pages
37 I -6, and Palmer, Co//ecUve Agreement AnWrWon in Canada (2nd
edition, 19831, at pages 42 I-5, and the cases referred to therein. The
reason for this is that the employment relationship depends on the ability of
the employee to do work on some reasonable basis. If the employee’s
prognosls lndlcates that the employee Is no longer capable of regular
attendance, and afoftiofi as here suggests that there will be no
attendance at all in the future, then the employment relationship has been
broken fundamentally and’ls Irreparable. It matters not whether the
employee’s condition is due simply to illness, or if it is caused by a
compensable injury. The critical point is that the employee is unable to
work. The employer in these circumstances is entitled to terminate the
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employment. Thts fs not a dlscipllnary matter, It Is not a question of fault.
The grievor is not being punished for his misfortune. But due to the
employee’s inability to continue working on a regular basis, the employment
relationship can be terminated.
If there is insufficient evidence to assess adequately the prognosis,
and the employer bears some responsibility for this failure, then a board of
arbitrationmayorderthat furtherevidencebe obtained(asoccurred in two
cases involving the same parties as we have here-- C%eczet4 GSB /89/83,
at I l-12; and Suppa, GSB766/84, at 15-16).
We have no hesitation in concluding in this case that the grievor’s
record and his unfortunate prognosis provide ample justification for the
employer’s decision tdterminate the grieVOr'S e~plOym?nt.
Now the Union urged-us to consider the circumstances of the grievor’s
injury on August 2, 1984. This incident remains the subject of a claim and
appeal at the Workmen’s Compensation Board. We heard the grievor’s
testimony concerning these events. According to the griever, at the end of
his shift on that day, he was called lnt0 a SUperviSOr’S offICe to discuss a
performance rating, and during the course of the meeting he was berated for
not wearing his safety boots when required. He rose out of his chair to
leave, was confronted by a female supervisor, who polnted her finger ln his
face and told him to listen to what she had to say. He backed up and feli
into a chair, and felt a severe pain in his back. Within minutes, an
ambulance had come and the grievor was taken to the emergency ward in a
local hospital. We ruled that, even if the grievor’s version of the events was
true, his story disclosed no deliberate.aSSault by any member of
management, nor any responsibility of the employer which would change the
character of this case. Therefore, it was unneccesary for the employer to
call its witnesses concerning this incident. Apparently the employer does
not agree entirely with the grievor’s recollection.
furthermore, there was no evidence to support the Union’s suggestion
of discrimination or intimidation of the grievor. His unfortunate physical
.
condition 1s not due to any lntlmldatlon by the employer, and his treatment
by the employer following the injury is in no way discriminatory.
When the grievor’s employment was terminated, he was able to apply
for and is receiving Long Term income Protection, pursuant to Article 22.04
of the collective agreement. He claims that he should also receive the other
benefits provided in Article 22--life insurance, OHIP, supplementary health
and hospital. plan, and.dental plan. However, the employer’s consistent
practice is in accord with Article 22, which makes clear that these benefits
apply only to full-time permanent employees. If an ~ 1s on Long
Term income Protection (that is, it is contemplated that the person will
return, to work, and therefore has not been terminated), then the other
welfare benefits are maintained at no cost to the employee while the
employee is in receipt of L‘TIP benefits. But once an employee is
terminated, these other benefits are not maintained.
Article 22 provides:
ARTICLE 22. EMPLOYEE BENEFITB
This article will only apply 10 lull-time permanent
employees.
22.01 LIFE INSURANCE
The present Qroup Me insurance coverage will ba
continued (double annual salary). The premium
wstswillkpaid9O%bytheEmployerand10%by
the employee.
22.02 O.H.I.P.
The Ontario Health Insurance Plan (OHIPI pe
mium will ba paid 100% by the Employer.
22.03 SUPPLEMENTARY HEALTH AND HOSPITAL
PLAN
(i) The Employer shall pay one hundred percent
(lCO%) of the monthly premium of the Supple
mentary Health and Hospitals Plan for all perm-
anent fulktime employees, except in thosa
cases where employees have opted out of the
Plan
(ii)The M&or Medical Section of the Suwle
msntaryHaallhandHos#alPlanwillbesub+ztto
a deductible of ten dollars ($10.00) per person
covered to a maximum of twenly dollars
($20.00) per family, per year.
22.04 LONG TERM INCOME PROTECTION PLAN
(iJ It shall be a condition of employment that
empbyeesbeenmk&nabr@eninxmevotse
tion plan. The premium cost will ba paid 100%
by the Employer and with efleC1 from July 16,
1980. Welfare benefits as provided in Article
22 shall ba maintained at no cost to the em
ployee. when the employee is in receipt of
LT.1.P. benefit6
(ifI Anem~loyeewho has been in recelpld LT.1.P.
and who is certified fit to return to duty, shall be
reinstated to the first available vacancy for
which he is qualiiied in either the 881118 or in a
Iaver classification.
22.05 DENTAL PLAN
It shall be a condiiion of employment that em
ployas be enmlled in a Dental Plan e&valent to
the Blue Cross Plan No. 7 plus Rider No. 1. the
premiums of whiCh will be paid one hundred
percent(lDD%) bytheEmployerandthebenefit to
be cwinwed on a 75125 bask in accordance
with the current O.DA Schedule of Fees.
The Union urge&s to exercise our authority to vary the ‘penalty or
dismissal’ of the grievor and to substitute such o&her ‘penalty’ as we
consider just and reasonable in all the circumstances, in accordance with
Article 9.01 of the collective agreement, and section 19(3) of the t)-own
f..@o~ees Co//ective Bargahhg Act But in our view, we have no such
authority In this case. Put simply, the grlevor was not disciplined, and his
termination is not a ‘dismissal’ in the sense that word is used in these
provisions. Here the grievor’s employment has been terminated because he
cannot physlcally work any longer. There Is no reasonattle alternatIve but to
sever the employment relationship.
We were asked to order that the employer maintain the grievor’s
welfare benefits under Article 22. But we cannot do this, because to do so
would be to alter the collective agreement. Article 22 is clear that these
beneflts are only-for employees. Once the employment relatlonshtp Is
terminated, there is no right to these benefits under the collective
agreement.
In COnClUSlOn, though the grlevor has suffered lnjury and Illness
through no fault of his own, we find that the employer had ample
justification for terminating the employment, given the grievor’s
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attendance recor’d and the clear prognosis that he would be Unable t0 attend
at work. For these reasons, the grievance is dismissed.
Done at London, Ontario, this 13th day of November
, 1985.
tTIUelS, We-Chalrman
I. Freedmanbember
,,-- ;/I -:
A &“/q,/
A. G. Stapletoh, Member
I ‘\