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HomeMy WebLinkAbout1985-0767.Noah.86-09-12IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before : THE GRIEVANCE SETTLEMENT BOARD Between: OPSEU brbara Noah) and Griever The Crown in Right of Ontario (Ministry of Commlnityand Social Services) Employee Before: P. M. Draper Vice-Chairman I. Freedman Member A. M. McCllaig Mefllkr For the Crievor: 8. Hanson Course1 Cavall uzzo, Hayes & Lennon Barristers EC Sdlicitors For the ~Erqloyer: C. H. Slater Solicitor Legal Services Branch Ministry of Commmity and Social S&vices Hearing December 20, 1985 February 13, 1986 April 9, 1986 DECISION The Griever, Barbara Noah, grieves that she has been unjustly dismissed from’her employment with the Employer. The Crievor was employed at- the Southwestern Regional Centre, a facility for the developmentally handicapped near Blenheim, where she served as a Rsidential Cotmsellor 2, though not classified as such. She was a publicservant, but not a civil servant, employed in Group 1 of the unclassified service, performing part-time duties (twenty-four hours or less par.week) under an individual fixed-term contract. ‘The first contract covering this employment ran from June 3, 1984 to March 31, 1985. The second was to rm from April 1, 1985, to March 31, k986. The Griever’s employment was terminated as of August 5, 1985, on two weeks’ notice. It is not in dispute t;hat the Griever was an employee within the meaning of the Crown Employees Collective Bargaining Act and that the collective agreement between the Union and the Employer applied to her to the-~~extent provided by Article 3. Artide 3 contaim such basic terms and conditions of employment as wages, overtime, reporting pay, holidays, vacation pay, attendance credits and sick leave. The relevant sections of the artidefcr pesent plrpxes are: -2- 3. I The only terms of this agreement that apply to employees who are not civil servanis are these that are set out in this Artide. 3.11 Employment may be terminated by the Employer at any time with one (I) week’s notice, CT pay in lieu thereof. 3. I4 The following Artides shall also apply to seasonal or part-time employees: Artide I, 9, 11, 12, 15, 16, 17, 21, 22, 23, 25, 27, 32, 36 and 57. Both irdividual cantracts between the Griever and the Em’ployer contained the following provision: ‘This agreement may be terminated by either party giving reasonable notice of such intention in writing 6ninimlm is one week’s riotice) i’ The Griever’s duties were perfamed almost exclusively on a unit of the facility known as Elgin One North. Care of residents there is provided on a twenty-four hour basis and employees, induding those in the Crievor’s position, are required to work rotating shifts as follows: 7:30 am. - 3:30 pm. (day shift); 3:15 pm.- 11:45pm.(afternoonshift); 11:30p.m.-7:30a.m.(nightstjft); 11:3Oa.m.- 8:00 pm. Gplit. shift). During~ the period of her employment under the two contracts the Griever rotated between the day shift, afternoon shift and split shift with the exception of five assignments to the night shift, the last, in October, 1984. .,... Shortly after commencing her~empioyment the Griever toid her supervisor, who was also newly employed, that.she did not “feel well” when she had to work the night shift. The supervisor had heard from other employees that the Griever suffered from dabetes and, despite hating explained to. the Crievor in a memorandum why an exception could not be made, undertook to accommodate her wish as far as possible; “to work around her” as she put it. Although, the Griever ,imisted througtioa’that she. objected to night duty for reasons -of health and -3- although on several occasiom she mentioned getting a “note” from her doctor, no medical evidence to support that claim was forthcoming. In late June or early July, 1985, a new s.ystem of resident care that required more daytimestaff was pit into effect on ElginOne North. The result was an increased need for part-time employees, indudmg the Grievor, to work the night shift. The Griever was told that she would now have to do regular ni@t shift work and that if she dtd not she would have to be “let go.” She was still not prepared’to work the night shift and stqwed indifference to the prospxt of lcsing her employment. It was suggested to the Griever that she go on the call-in list which would make her eligible to substitute icr employees absent fcr reasons such as illness, but she was not interested. The decision was made to terminate the Griever’s employment, the reason given to her being “that termination of your contract is necessary becarse of your itibility to fill a requirement of the position, ie.perfcrmance of duties duringthe 11:30p.m.- 7:30a.m. (nightlshift!’ At the hearing, Dr. George Lawley testified that the Griever has been his patient fcr some f,ifteen years and has had diabetes mellitls for at.least that long. She does not require meolcation and her condition varies with her observance .‘. of a statiliing diet. He has no record of a request by the Griever in late 1984, or early 1985, for a letter regardng her dabetes and did not provide one. Although, there is no scientific proof fcr it, his opnicn is that the Griever is tmder stress when she has to work nights and is better able to copewith her condition if she does not have to do so. He has advised the Griever many times to take a daytime job but he cannot say authoritatively that this is medically inoicated. -4- The argument is made on behalf of the Griever that the Employer is in violation of theHumanRights Code, 1981, in that the Griever has been denied equal treatment with respect to employment because of the handicap of diabetes. The issue of the Boards juriso?ction to entertain that allegation is settled by the decision of the Supreme Court of Canada in Board of Governors of Seneca Coliege of Applied Artr and Technology v. Bhadauria, 124 D.L.R. (3d) 193. The finding of the Court was that the Code establishes exclusive procedures for the enforcement of its substantive protisicxqand so povides uxnpehensively for remedies fw its breach. It is the position of the Employer that the employment of the Griever was properly terminated under the terms of the individual contract and that, in any event, it was .a termination within the meaning of Article 3.11 of the collective agreement. In the alternative, it is submitted that if the Griever was dismissed, the dismissal was fu jGt cause. The provisions of the Public Service Act regardng “release from employment” were, not raised before the Board and’it is our understanding that the Employer does not argue that the termination here was a “release” under that Act. It is argued for the Griever that she was dismissed, that the dismissal was without jlst cause and that the Board has jurisdiction in the matter regardlesswhether it was diidplinary or nor+diiciplinaryin nature. By virtue of Article 3.14 of the collective agreement an employee to whom Artide 3applies may grieve a dismissal under Artide 27.6.2 which reads in part, “Any employee other than a probationary employee whx5 is &missed shall be entitled to file a grievance . . . 10 Such an employee may also invoke Section 18 (2) of ths Crown Employees Collective Bargaining Act (the Act) which reads iti.part: -5- In addition to any other rights of grievance under a collective agreement,an employee claiming, . . . (c) that he has been disciplined or dismissed or sspended from his employment witrout just came, may process such matter in accordance with the grievance procedure provided in the colIective agreement, and failing final determination under such procedure, the matter may be processed in accordance with the procedure for final determination applicable under section. 19. Section 19 (1) of the Act Fovides that the Board “shall decide the matter!’ It is well settled that nothing in the collective agreement can derogate from rights conferred by t& Act. It mc6t foilow that nothing in an individual contract between the Employer and an employee can derogate from these rights. We reject tk notion advanced by the Employer that because the right of grievance contained in Section 18 (2) is persori’al to the employee it may~be waived or contracted away and that that is the case here. The Act is a declaration of public policy. Section 18 (2) is ~no less a part of that public policy than any other provision ., of the Act and the right it confers cannot be repudiated. The individual contract that exists here has force only insofar as it does not conflict with any right of the Griever under the Act or, fcr that matter, under Artide 3 of the ‘collective agreement. In other words, it’cannot encroach on the collective ,bargaining regime established by the Act and the collective agreement. In a number of decisions turning on the interpretation of Article 3.1 I of the collective agreement the Board has characterized the action taken by the Employer under that article as either a “termination” or a “dismissal.” It has asserted juriscLcticn to determine which is involved and where it was satisfied that -6- a dismissal had~~taken place has given effect to the right of grievance found in Secticn 18 (2) (cl of the Act and has exercised its authorit.y to arbitrate under Section 19. In itr decision of March 21, 1984, on an application for judidal review of Miller and MacFhail, 530, 531/82, the Divisional Court, in effect, recognized that the right reserved to the Employer to terminate employment on the terms set out in Artide 3.11 does not extend to dismissal. That opnicn affirms the jurisdiction historically asmed by the Board. At one stage ths Board, in considering the application’of Section 18 (2) ,, (c) of the Act, equated”dism_issal” with”diciplinary dismissal!’ That is no longer .,,_ the case since the Board’s decision in Gibson 634/84. In that decision the ~distinctim between”disciplinary” and”nor+disdplinary” dismissal was rejected as a basis for the determimticn of the Board’s jurisdtcticn under Section 18 (2) (cl. In Re Maritime Telegraph & Telephone Co.~ Ltd., 16 L.A.C. (3d) 318 (Cotter, 1984), the arbitrator identified innocent absenteeism and inability to do the job as the two generally accepted bases fa non-disdplinary dismissal. He evidently regarded dismissals for those reasons as oYismiss& for cause, since he held that the criterion of just cause was applicaMe to them. In Ambrey, 429/84, the Board expressed the opinion that “conduct can be non-culpable and legitimately warrant a dismissal in situaticns such as imocent absenteeism or inability to perfam the job” and went ofi to state that “A termination can then be viewed as the endng of an employment relatimship fcr reasons that are other than those resulting f rom the conduct of the employee:’ We are of the view that “dismissal”, for the pirpcses of the Act and the collective agreement, m’ay be defined as an act or decision of the Employer, hating as itr basis some conduct or condition of the employee, which severs the dmployment relaticnship. That definition encompasses oJlpa.ble conduct that leads -7- to disdplinary dismissal and non-culpable conduct that lea& to non-disdpli~nary dismissal, as well as any physical, mental or like condition that renders the employee incapable of attenoing at work or of performing the duties of the .positicn. Such dismissals are dismissals fcr cause and bring into play the standard of just came. Applying that definition to the fa& before ~6, we find that the severance of the employment of the Griever constituted a dismissal. We have concluded, not without’some initial doubt, that the dismissal was nor+diidplinary in that it was a response to a disabling condition of the Griever. While the case was not made out that the Grievoi-5 dabetes itself was the direct calse of her inability to work, at night, the frank testimony of Dr. Lawley satisfies us that although not medcally certifiable, the stress she experiences from such work adversely affects her health. There is nothing in his testimony to-suggest that this is a temporary condition. We note, as welI, that the language of the Griever’s dismissal rotice suggests acceptance of the rexon given by the Griever for her objection to night work. The Cirievor was given no asslaance., and cannot have reasonably i expected,that she would be exempted permanently from working the night shift, a requirement of the position of which sle was fully aware. When the new system of patient care was introduced she was warned that her objection to night work could no longer be accommodated and tI-a.t she faced tl-elcss of her job. Despite this dear notice that the reqtirement would be enforced, the Griever continued to .._ ..,.. _~. .; maintain her ii-ability to meet it. The Employer was entitled to receive the services for which it had contracted and we find that the Griever’s mability to work the night shift amounted to a failure to provide ttem and constituted just came for her dismissal. In view of the fact that the Crievor was employed under an indiviudal contract to perform the duties of aspscific positicn,we consider that -X- the Employer was not obligated to endeavour to place the Griever in alternative employment. We note, in that regard, that the Employer’s suggestion that the Grieva place her name on the call-in list was not taken up. The grievance is &missed. DATED at Comecon,Ontario this 12th day oJ,>eptember, 1986. P. M. Draper, Vice-Chairman I. Freedman, <Member p&&gq A.M.McCuaig,Member