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HomeMy WebLinkAbout1985-0948.Lawrence.88-02-23-.. IN THE MATTER OF AN ARBITRATION - Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT THE GRIEVANCE SETTLEMENT BOARD Between --_ OPSEU (Maisie A. Lawrence) And The Crown in Right of Ontario (Ministry of Consumer & Commercial Relations) Employer Before M.R. Gorsky Vice-Chairman I.J. Thomson Member W.A. Lobraico Member . For the Griever K.W. Whitakex Counsel C. Dassios COUllSel Gowling & Henderon Barristers & Solicitors For the Employer K. Waisglass Staf.f Relations Officer Ministry of Consumer & Commercial Relations Date August 6, 1986 1 Page 1: The Griever, Maisie A. Lawrence, was at all material times classified as a Data Technician 2 with the posLtion titte of C.R.T. Operator and was employed by the Ministry of Consumer & Commercial Relations. The Grievance is as follows: “I grieve that I have been disciplined without just cause and threatened with dismissal.” The complaint relating to “and threatened with dismissal”, was not pursued. The settlement desired is as follows: “That the suspension be removed from my records and I be paid for pay lost .Aug. 9, 1985 (.)(F)urther that I retain all benefits and seniority”. The basis for the suspension is as set out in exhibit #5. which is as follows: August 8, 1985 Ms. Maisie Lawrence 18B Bernick Drive Barrie, Ontario L4M 555 Dear Ms. Lawrence: It has been brought to my attention that on Monday, July 29, 1985 you did not comply with your Absenteeism Directive when you failed to report to any of the three (3) pre-designated personnel, prior to 9:OO a.m., “that you were unable to report for work that day.” This must he treated as an act of insubordination as clearly documented in the form of a caution to you in the letter of warning issued to you by Mrs. D. Mohr, dated April 13, 1984, for “Non-Compliance to Absenteeism Directive.” - *. Page 2: In v‘iew of the above I advise you under the,authority delegated to me and in accordance to Section 22.2 of the Public Services Act that you are hereby suspended one (1) day without pay as a form of disciplinary action. The date of the suspension is August 9, 1985. You are not to report to work on that day. I must caution you at this time that in the future the same action on your part will again be treated as an act of insubordination and the gravity of the situation assessed at that time. Hopefully you will reflec;*on the seriousness of this disciplinary action and in future adhere to all directives of this unit. 6. F.\lr'ebber Provincial Prooettv Reoistrar Properiy Right;~Di;isj& ' The alleged failure to comply “with your Absenteeism Directive”, referred to in exhibit #5, is based eon a directive contained in exhibit P8, which is a -letter dated October 24th, 1983, to the Griever from T. N. Bundle, Director Personnel Roperty Security, the material poctions of which are” LII follmm: Ozober 24, 1983 Mrs. Maise L~awrence 188 Bernick Drive Barrie, Ontario L4M 555 Dear Mrs. Lawrence: In reviewing your attendance, it has been noted thht you have been away on numerous individual instances totalling amounts in excess of the norm for your work unit. On a recent occasion when this occurred you were required to bring in a medical certificate for each instance of absenteeism and a marked improvement in your attendance resulted. As a consequence and upon the recommendation of vour supervisors. I withdraw the requirement in my memorandum to you dated Octobrr 22, 1982. Page 3: Since January 4, 1983, op to and including October 21, 1983, your attendance has deteriorated. You have been absent a total of forty and one-half (40-l/2) days of which tventy-three and one- quarter (23-l/4) were single days. Your supervisor is concerned about usage of the Short Term Sickness Plan and your overall well- being. Such absences put considerable stress on the efficient function of the work unit. In viev of the above I advise you under the authority delegated to me by the Deputy Minister and in accordance with Article 3.7;3 of the Collective Agreement between the Management Board of Cabinet and the Ontario Public S@ce Employees Union, that you are here- by required to submit a medial certificate covering any period due to illness. The certificates must be signed by a legally qualified medical practitioner and must be presented to your supervisor(s) immediately upon return to work. They must confirm that in the deriod you were absent you were unable to perform your official duties as well as specify the period in question. The requirement for a medical certificate will remain in effect until further notice. During this time your attendance will be monitored and meetings will be held between you and your supervisor(s) from time-to-time. Effective immediately, if and when you are unable to report to work for an) reason, you must~contact one of the following persons prior to 9:00 a.m. the same day: Mrs. V. Robinson 963-0455 Mrs. D. Mohr 963-0561 Mr. P.L. Preager 963-0451 This directive will remain in effect until further notice. Iwantto stress the seriousness of the situation. Your attendance is not satisfactory and it must be improved. I hope your condition is such that you will be able to improve your attendance very quickly. I” summary, when you are sick see your doctor. Have him/her sign a medical certificate. Bring the certificate with you when you return to work, making certain the certificate covers the entire period of your absence that you were unable to perform your duties. If you return to work without a certificate, you will be asked to leave work to obtain the certificate. Your pay will be docked for the time lost in order for you to obtain the certificate. - ~--.I am recommending to the Director of Personnel Services Branch thit she consider having you see the Employee Health Services Branch (Ministry of Government Services) for an Employee Health Evaluation and to review your case. T. ?S. Rundle a- Director Texsonal Property Security It was not argued on behalf of the Crievor that she was unaware of the reporting directive or that it was unreasonable. The Crievor testified that she took medication around lo:30 a.m. on July 29, 1985 to treat a stress related depression which she was experiencing. On that day she was scheduled to work the 2:45 p.m. to LO:30 p.m. (evening) shift. Her evidence~was that after taking the medicine,she would decide, later on in the day, whether she felt well enough to go to work. It was her evidence that when she worked on the evening shift she was allowed to call in prior to the commencement of that'shift (usually before'2:OO p.m.) and this was acknowledged on bahalf of the Emplover. She further t " testified that she was permitted to call in, on occassion. up to the c-nc-t of the shift, and that this practice was accepted. It was her evidence that she lay down and did not awaken until approxi- mately 4115 p.m. uhan she called the Ministry advising that she did not feel well enough to come to uork. She stated that she communicated this advice to the Lead Operator, Camela Bavosa. Hs. Bavosa advised the Crievor that she was required,.pursuant to exhibit #8, to speak to one of three individuals1 1. Dot Mohr. who was the Crievor's Supervisor 2. Vivian Robinson. who was the Assistant Supervisor of the Griever 3. Wayne A. Cart=. the Operations' Manager. .5. ‘Page 5: ~-pus.. Bavosa stated that she told the Crievor that Ms. Nohr and fls. Robinson had left the office for the day and were not available and that Wayne Carr was not immediately available for the purpo&of speaking to her. The Crievor left a message with Ms. Bavosa for delivery to pot Hohr. The message, as recorded by Us. Bavosa, was that the Griever was unable to come to work and would call Ms. Bohr on July 3&h, in the morning, in order to explain further. p e r ever was scheduled to work the same shift C i on July 30th. 1985. On the following day (July 30th, 1985) the Griever called Ms. Mohr. I am satisfied that she did not explain to Ms. Hohr that she had fallen asleep and, therefore, was unable to report to one of the three designated employees within any of the times permitted (including the Griever’s version of what was acceptable)‘. The Griever was off work to Aug. 8th for medical reasons and did not return to work until that date uhen she received exhibit 85. On Aug. 8th. 1985, after receiving exhibit 85, the Griever spoke to Wayne 1’ Carr and furnished him with her reasons for failing to be at work on July 29th. as well as the reasons for reporting as she did. I am satisfied that she told the entire story as’above recited. Mr. Carr did not testify. The position of the Union was that the Crievor’s conduct did not amount to insubordination, that her failure to report in accordance with the directive was inadvertent and that she had a reasonable personal excuse for failing to comply with the letter containing the directive (exhibit l/8). In the alternative, the Union’s position was that if there was just cause for discipline based on the actions of the Crievor, then based on an examination of the Griever’s entire record and of the circumstances involved in this case, there should be reduction of the penalty. The ‘Dmployerwaived any argument available to it based on timeliness. In addition to its position, relying on the above mentioned directive, the Page 6: “~Employer also relied on certain rules of general application requiring an employee to call in by 8:00 a.m. of the morning shift or two hours before other shifts when the employee was unable to come to work. The Employer also referred to the requirement of furnishing a medical certificate in the case of certain employees suspected of sick leave abuse or chronic absenteeism. In those cases, it was routine to require employees to furnish medioal certificates for all absences whatever their duration. It was the position of the,Employer that the excuse of the Griever for not telephoning in time was not a reasonable one and that if it was a reasonable excuse, the Employer was unaware of it prior to its having imposed discipline. It was the further position of the Employer that if ‘the excuse was a reasonable one and would excuse the failure to re- port. as required, then it was necessary for the Griever to have ad- vised the Employer of the excuse prior to discipline being imposed. It was argued by the Employer that the Griever did not come forward with her excuse until after the delivery of the letter of discipline (exhibit ?/5). , The position of the Employer was that it would have considered the ex- planation of the Grievor if it had been given prior to discipline being imposed and after she spoke to Ms. Mohr on July 29, 1985. It must be emphasized that until the hearing the Employer treated this as's matter of insubordination, treating the provisions of exhibit #8 or the general reporting requirements as representing a direct order which had been disobeyed by the Griever. It was the further position of the Employer that it was not aware of any mitigating CircUmstanCeS or excuses for the Griever’s actions. when it imposed discipline and that it had behaved reasonably in the light of the information that it had and in the light of the record of the Griever and the nature of the offence. In referring to the Crievor’s record, the Employer stated that the im- position of a one day suspension was in accordance with the,philosopiiy of progressive discipline, there having been a prior identical offence. ThC! employer referred to a previous matter where the Crievor had been dis- ciplined on July lSth, 1981 for insubordination. The position of the Union was that the Griever had a reasonable excuse for not reporting and did not deliberately act in violation of the rule. The Employer responded that there was evidence that the Griever had an alarm clock and that she was negligent in not using it in this circumstances. The Employer also argued t<at the Griever should, in the circumstances, have arranged for someone to call the Employer and submitted that the Griever should have called the Employer before taking a sedative. Ms. Hohr testified that she saw exhibit /@‘being a written note from Us. Bavosa, dated July 29th, 1985 stating: “Maisie called at 16:ZO to say she wasn’t feeling well - and that she couldn’t make it in. Not to mark her under absent. I told her she had to speak to Wayne or Peter. She said she was calling long distance*‘, (from Batrie). Ms. Mohr testified that the Griever called at 9:lO a.m. on July 30th to advise that she would not be into work on that day. She further testified that she saw exhibit #9, for the first time at around 8:45 a.m. on July 30th, 1985. Ms. Bohr stated that she spoke to the Griever at about 9:lO a.m. on .Julv 30th: 198s but she could not recall whether she received an explana- tion as to why the Griever had not called, as required, on July 29th. 1985. Ms. Mohr also could not recall whether the details of the Griever’s illness were furnished on July 30th, during the telephone conversation which took place at approximately 9:lO a.m. After speaking to Ms. Bavosa on July 30th, and after having examined exhibit 89, Ms. Mohr spoke to Mr. Car, the Manager of Operations and. discussed the possibility of imposing discipline because of the earlier warning letter to the Griever. It was airreed that a one dav suspension should be imposed on the Griever for insubordination. The recommendat ion of Ms. Mohr was accepted,which led to the issuance of exhibit #5 (the letter of discipline). Ms. Mohr stated that she gave exhibit 115 to the Crievor on Aug. 8, 1985, and read it to her. The Griever indicated that she understood what was being conveyetl in the letter:. According to Ms. Page 81 ~i-‘h. tiohr,. when discipline was considered,and up to the time when it was imposed, she was not aware of any mitigating circumstances or personal excuses for failure to adhere to the rule imposed on the Griever. The only reason for ~, the absence known to Ms. Mohr was that the Griever stated that she was I ill. Ms. Mohr stated that she believed she would have noted it if the Crievor had stated (during their c&versation of July 30th) that she had overslept. Ms. Bavosa testified that she told the Griever that she was unable to take the call of July 29th in orderto comply with the directive in exhibit 118 . She recalled that the Griever had asked to speak to Ms. Robinson or Ms. Mohr and that the call had come in on Ms. Robinson’s phone line. In cross-examination, the Grievor acknowledged that she usually took her medication the night before she pas scheduled to work and.that she usually went to sleep after taking it,; and usually slept from two to fivchourg. She acknowledged that when she took the medication and went to sleep she did not know exactly how long she would sleep. Further, in cross-examination, she acknowledged that she usually set her alarm clock in order to. wake up, but did not do it on this occassion. In describing her routine , the Griever stated that in order to make her shift she would get up at 12:00 p.m. (1:OO p.m. at the latest). As she usually slept from two to five hours after taking the medication, it was unrealistic of her to behave as she did if she expected to be at work on time. From all of the evidence, including the letter imposing the discipline (exhibit #5>, and the letter to the Griever from the Assistant Deputy Minister, Bernard Webber, dated November 4th, 1985 (exhibit #4B), it is clear that, at.least until this hearing, the basis for the imposition of discipline was the failure of the Griever to report to one of the three designated management employees by a specific time when the Griever was unable to report to work and that this was being treated as “an act of insubordination”. Knowledge of the Gricvor’s excuse was known by, at least, Aug. 8, 1985. . Page 9: There was no indication,to the time of the hearing, that the basis for imposition of the discipline was for anything other than the alleged “insubordination”. On the facts, I would find that the Griever was guilty of using extremely poor judgment in taking the medication, which had a sedating effect, and then lying down without setting the alarm clock. There was. however, nothing to indicate she was acting in an insubordinate manner. If she was truly insubordinate, she would have failed to call in any event. 0. Nor is this a case where the Griever deliberately refused an order while acting in good faith and without an intention to defy management,be- lieving she had some justification for doing so. If this were the case, I would not expect her to have called the Employers at all. The Griever did not defy management. There is a difference between an implied refusal to follow an order, which may.~amount to insubordination, and failure to follow the order, as in this case, because of negligence, which does not amount to an act of defiance. It would appear that because of her mental state the Grievor’s judgment was affected and this resulted in her negligent behaviour . Whatever else it may have amounted to, her behaviour was not testament to an act of insubordination. Accordingly, and for the above reasons, the grievance succeeds and the Griever is entitled to payment for the day of the suspension and for re- covery of all benefits lost as a result of the discipline being imposed. Should there be any difficulty in settling the relief, I retain jurisdiction to do so. Grievance 956185, ,which concerned the Griever’s performance appraisal, was withdrawn (see Consent of the parties and the Union filed). DATED AT TORONTO, ONTARIO, THIS 2Srd DAY OF FEBRUARY. 1988. M. R. Gorsky Vice-Chairman -- I. J. Thomson - Member \- W. A. Lobraico - Member