GSB#1437/01
UNION# OLB576/01
IN THE MATTER OF AN ARBITRATION
Under
THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT
Before
THE GRIEVANCE SETTLEMENT BOARD
BETWEEN
Ontario Liquor Board Employees’ Union
(Braybrook)
Grievor
-and-
The Crown in Right of Ontario
(Liquor Control Board of Ontario)
Employer
BEFORE Nimal V. Dissanayake Vice-Chair
FOR THE GRIEVOR Bernard S. Fishbein Counsel Koskie Minsky Barristers & Solicitors
FOR THE EMPLOYER Alison Renton Counsel Legal Services Ontario Liquor Control Board of Ontario
HEARING February 28, 2002.
DECISION
The grievor, Mr. Terry Braybrook has filed two grievances, dated November 20, 2001 and December 10, 2001 respectively, each challenging his termination by letter dated November 30, 2001. The parties agreed that in substance both grievances were identical and that this decision will be dispositive of both.
A number of grievances filed by the grievor were settled in June of 2000, with the parties entering into the following minutes of settlement.
MINUTES OF SETTLEMENT
WHEREAS the Grievor has filed a grievance at Stage 3 dated December 31, 1998 (OLB 391/98); a grievance at Stage 3 dated December 14, 1998 (OLB #399/98); a grievance at Stage 3 dated May 20, 1998 (OLB #201/99); a grievance at Stage 3 dated July 13, 1999 (OLB #219/99), a grievance at Stage 3 dated July 12, 1999 (GSB #0800/99); all of which are attached hereto, and whereas the Employer, Union and Grievor (collectively “the Parties”) are desirous of a settlement of all the Grievor’s outstanding grievances,
THEREFORE, the parties have agreed as follows:
The employer shall pay to the Grievor the sum of Thirty Thousand Dollars ($30,000.00), less deductions required by law, including any potential EI overpayments, and the Employer shall provide the Grievor with a statement explaining such deductions; the Grievor shall be reinstated to the LCBO as a full time Customer Service Representative with his former seniority date; the Grievor shall be assigned to Store 411; such assignment shall take place Monday, July 3, 2000;
The Grievor and the Union shall withdraw all of the Grievor’s outstanding grievances, not to be re-filed;
The Grievor agrees that he shall provide to the LCBO a note, to substantiate such absence, from a health care provider no later than three (3) days after the Grievor’s return to work from an unauthorized absence due to the Grievor’s health; the Grievor agrees that he shall provide such note to his Manager; if after the expiry of two (2) years from the date these Minutes of Settlement are signed, the Grievor has not been absent beyond the terms of these Minutes of Settlement, then the Employer agrees that the requirement to provide a note from a health care provider shall be rescinded; if however, the Grievor’s absences occur after two (2) years, then the Employer shall revert to its collective agreement and management rights;
For unauthorized absences not due to the Grievor’s health, the Employer shall issue such discipline as it determines appropriate;
For a two (2) year period following the Grievor’s reinstatement, the Grievor shall comply with the following:
(A) The Grievor shall report on time for each and every shift for which the Grievor is scheduled;
(B) Personally notify the store manager, the assistant manager, or the person in charge, by interactive telephone conversation, of any unforeseen absences, at least fifteen (15) minutes prior to the start of any shift for which the Grievor is scheduled;
unless (for both 5(A) and (B) the circumstances could reasonably be characterized as emergency, life threatening, or beyond the Grievor’s control;
(C) Maintain an attendance record of not more than ten (10) days of absences per calendar year from the workplace, exclusive of any authorized vacation, authorized leaves of absence(s), periods of hospitalization, serious illness and physician prescribed recovery period(s), for which the Grievor shall provide a medical report explaining the Grievor’s entire period of absence and provide such report to the Employer within three (3) days of the Grievor’s return to work;
Should the Grievor fail to comply with any of the conditions set out in these Minutes of Settlement, the Grievor’s employment with the Employer shall be deemed terminated immediately and the Grievor shall not have the right to grieve his discharge or otherwise challenge his termination, other than to dispute the facts upon which the termination is based;
The Parties agree that an arbitrator or arbitration board of the Grievance Settlement Board hearing any grievance with respect to the discharge shall not have jurisdiction to substitute the penalty other than in a case where the infraction is very minor and disproportionate to discharge, taking into account the Grievor’s record;
The LCBO shall rescind the five (5) day suspension referenced in Grievance “A” and shall replace it with a letter of reprimand, the LCBO shall reimburse the Grievor for the five (5) lost days of wages based upon his applicable 1999 rates, less deductions required by law;
The LCBO shall rescind the five (5) day suspension referenced in Grievance “B” and shall replace it with a one (1) day suspension; the LCBO shall reimburse the Grievor for four (4) lost days of wages based upon his applicable 1999 rates, less deductions required by law;
The LCBO shall rescind the three (3) day suspension referenced in Grievance “C” and shall replace it with a one (1) day suspension; the LCBO shall reimburse the Grievor for the two (2) lost days of wages based upon his applicable 1999 rates, less deductions required by law;
The Parties agree that the Minutes of Settlement reflecting the terms of the settlement shall remain indefinitely on the Grievor’s file, with the exception of the discipline which shall be removed in accordance with the terms of the collective agreement;
The Parties agree that the Minutes of Settlement executed September 2, 1998, shall remain indefinitely on the Grievor’s personnel file, however, the Employer agrees that it will not impose any discipline as a result of language contained within those Minutes;
The Parties agree that the Grievor’s previous attendance record, prior to July 5, 1999, shall remain indefinitely on the Grievor’s personnel file;
The Parties agree that paragraphs 11, 12 and 13 are subject to Article 26.2 of the collective agreement, and the documents referred to therein may not be used contrary to Article 26.2;
The Parties agree that the settlement is signed without prejudice or precedent to any other matter between the LCBO and the Union, and without any admission of liability, and such liability is specifically denied;
The Grievor, and the Union, as the Grievor’s agent and on its own behalf, accepts this settlement as constituting a complete and final settlement of all matters raised in or which could have been raised in the grievances;
The Parties agree to keep the terms of the settlement confidential between the Parties and agree not to disclose them to any other person except as may be necessary to execute the terms of the settlement, uphold the terms of the settlement, or as may be required by law;
The Grievor, by accepting the terms of the settlement, and by executing Minutes of Settlement, acknowledges and agrees that he has had an opportunity to review the terms of the settlement, seek legal advice with respect thereto, and that by signing the Minutes of settlement he understands their terms and conditions and signs freely and voluntarily and without coercion or duress;
The Parties agree that Arbitrator Dissanayake shall remain seized with respect to these Minutes of Settlement;
By the signature of authorized representatives hereunder, the Employer and the Union agree to the terms of the settlement set out herein.
The grievor was subsequently issued the following “notice of intended discipline” letter dated November 13, 2001, signed by District Manager, Mr. Mike Stephens:
The purpose of this letter is to advise you that effective immediately, you are hereby relieved from duty as you breached the Minutes of Settlement dated June 27, 2000, specifically point 5C, in that you exceeded 10 days of absence per calendar year on November 10, 2001.
Within three (3) calendar days from receipt of this letter, you are asked to submit a written statement to my attention explaining the matter mentioned above. If you wish to speak to me regarding this matter prior to submitting your written statement, you are entitled to Union representation.
Should a meeting be scheduled following the receipt of your written statement, please be advised that you are entitled to Union representation, as discipline/ dismissal may result from this meeting.
Should you choose not to respond as requested, understand that Management will act on information currently available.
The LCBO’s decision concerning this matter will be made known to you in due course.
By letter dated November 19, 2001, with attached note from his family physician, Dr. R. Dicker, the grievor responded as follows:
This is in reply to the letter I received via Purolator on Friday, November 16, 2001 dated November 13.
About one month ago, I went to a walk-in clinic near work. I had a urine test, a swab test and other tests. The results were all negative and it was suggested that I had a virus and that any antibiotic would be ineffective. As the testing was done shortly after my arrival to work, I provided a physicians note upon my return from the walk-in clinic.
On Thursday November 8, I left work early to visit my family Doctor, as I had not been feeling well for about a week. I had a chronic cough and had been feeling feverish and fatigued. I also had allergy symptoms, such as burning, sore and tired eyes. Upon visiting him, I suggested I be tested for allergies. This was done Friday November 16. There were negative results.
After waking on the morning of Saturday, November 10th, I threw up several times and also had diarrhoea. I called Sharon Strachan at the first opportunity and mentioned that I would call her back in about an hour’s time to let her know if my condition had improved and if and when I would be coming into work. As there was no improvement in my condition, I phoned Sharon to let her know that I would have to remain home and I would visit a Doctor when I could.
I am sending you a copy of a Doctor’s note, which will be on 2 pages.
I have been making every effort to get to work, especially considering the “Minutes of Settlement” that I signed. I would like to continue my employment with the LCBO if at all possible.
The doctor’s note confirmed that on November 16, 2001 the grievor attended Dr. Dicker’s office with complaints about a cough and a sore throat and diarrhoea, and that he had allergy testing done.
The grievor was subsequently terminated by the following letter dated November 30, 2000:
This is further to the Notice of Intended Discipline issued to you on November 13th when you were relieved from duty as you breached the Minutes of Settlement dated June 2000, in that you exceeded 10 days of absence per calendar year on November 10, 2001.
This will confirm that I am in receipt of your response, dated and faxed November 19, 2001. Attached to your response was a doctor’s letter dated November 16, 2001, the same day you claim to have received the NOID. Your doctor advises that he saw you on November 16, 2001 for allergy testing, and you had a cough and sore throat of which your doctor opines is aggravated by your smoking. Your doctor also confirms that you told him, on November 16th, about your alleged medical condition of November 10th.
I have had an opportunity review all the information available to me including your response, past employment record, including attendance record, Minutes of Settlement executed September 22, 1998, Minutes of Settlement executed June 2000, and disciplinary record, and your failure to meet the terms as set out in the June 2000, Minutes of settlement. The LCBO also relies upon the fact that you did not immediately visit a physician about your November 10th absence, but waited six days to visit one, despite your representation to your manager that you would visit a doctor when you could. The LCBO also relies upon the fact that you have not provided any reasons, either in your November 19th letter or your doctor’s November 16th note explaining why you waited six days after your absence to visit a doctor.
Based upon all the above, I must conclude that you did in fact breach the Minutes of Settlement as noted above. Based upon all of the above, your employment is terminated as the LCBO takes the position that it had just cause to terminate your employment pursuant to paragraph 6 of the Minutes of Settlement, or alternatively just cause to terminate your employment pursuant to your entire employment record, inclusive of your attendance and discipline records.
The instant grievances followed.
At the hearing, the employer’s primary position was that the grievor was terminated for breach of the “last chance agreement” in the Minutes of Settlement. In the alternative, the employer contended that quite apart from the terms of the minutes, it had just cause to terminate the grievor. The Board agreed that this decision would be confined to the issue of whether or not the employer had properly terminated the grievor under the minutes. The employer reserved the right to make its alternate argument at a later date in the event the Board does not uphold the grievor’s termination on the basis of its primary position.
For the purposes of this proceeding the parties filed an Agreed Statement of Facts. The only viva voce evidence adduced was by the grievor. The Agreed Statement of Facts reads:
AGREED STATEMENT OF FACTS
For the purposes of the arbitration into the Grievor’s November 30, 2001 termination, and without prejudice or precedent to any other matter between the Parties, the parties agree to the following facts:
The Grievor commenced employment with the Employer as a part-time employee on October 1976 and became full-time on July 1981 and worked in the position of permanent full-time Customer Service Representative.
By correspondence dated July 5, 1999, the Grievor was terminated from the Employer for violating Minutes of Settlement dated September 22, 1998. One of those terms included that the Grievor’s absences were not to exceed ten (10) days per year.
The Grievor filed a grievance, dated July 12, 1999, which was the subject of an arbitration before Vice-Chair Dissanayake. Vice-Chair Dissanayake rendered a decision, dated May 17, 2000 (“the decision”), in which he ordered the Grievor to be reinstated. Attached hereto is a copy of the decision.
Subsequent to the decision, the Parties entered into Minutes of Settlement dated June 2000 (“the Minutes”). Attached hereto is a copy of the Minutes.
Paragraph 5(c) of the Minutes required the Grievor to:
(C) Maintain an attendance record of not more than ten (10) days of absences per calendar year from the workplace, exclusive of any authorized vacation, authorized leaves of absences(s), periods of hospitalization, serious illness and physician prescribed recovery period(s), for which the Grievor shall provide a medical report explaining the Grievor’s entire period of absence and provide such report to the Employer within three (3) days of the Grievor’s return to work.
Paragraphs 6 and 7 of the Minutes provided:
Should the Grievor fail to comply with any of the conditions set out in these Minutes of Settlement, the Grievor’s employment with the Employer shall be deemed terminated immediately and the Grievor shall not have the right to grieve his discharge or otherwise challenge his termination, other than to dispute the facts upon which the termination is based.
The Parties agree that an arbitrator or arbitration board of the Grievance Settlement Board hearing any grievance with respect to the discharge shall not have the jurisdiction to substitute the penalty other than in a case when the infraction is very minor and disproportionate to the discharge, taking into account the Grievor’s record.
In 2001, the Grievor was not at work, due to illness on the following:
January 10; 16; 17
February 26; 27(½ day); 28
April 23
May 17
June 8
July 3
November 10
By correspondence dated November 13, 2002, the Grievor was sent a NOID from the District Manager, Mike Stephens. In the NOID, Mr. Stephens advised the Grievor he was relieved from duty “as he breached the Minutes of Settlement dated June 27, 2000, specifically point 5 c), in that you exceeded 10 days of absence per calendar year on November 10, 2001". Attached hereto is a copy of the November 13, 2001 correspondence.
By fax dated November 19, 2001, the Grievor provided a response to the NOID, with attached doctor’s note dated November 16, 2001. Attached hereto is a copy of the November 19 response.
By correspondence dated November 30, 2001, the LCBO terminated the Grievor’s employment. Attached hereto is a copy of the November 30 correspondence.
The Grievor filed a grievance at Stage 3 dated November 20, 2001 alleging a violation of article 26.4 of the collective agreement re “terminated letter dated November 13, 2001". Attached hereto is a copy of the November 20 grievance.
The Grievor filed a grievance at Stage 3 dated December 10, 2001 alleging a violation of article 26.4 and “terminated without just cause”. Attached hereto is a copy of the December 10 grievance.
The collective agreement in existence at the time of the Grievor’s termination had a duration from April 1, 2000 to March 31, 2002.
(Attachments omitted)
Paragraph 7 of the agreed facts lists the grievor’s absences in the 2001 calendar year. They add up to 10½ days. The employer submits that the grievor exceeded 10 days of absence in the year 2000 with his absence on November 10th, and breached paragraph 5(c) of the last chance agreement. Counsel points out that in para.6 the parties specified the consequence should the grievor fail to comply with any of the conditions set out. That is, “the grievor’s employment with the employer shall be deemed terminated immediately” with no right to grieve his discharge other than to dispute the facts. Counsel further points out that in para.7 the parties have explicitly deprived the GSB of jurisdiction to substitute the penalty except in the very narrow circumstances specified.
The union’s position is two fold. Its primary position is that the grievor did not exceed the 10 days per calendar year condition in the last chance agreement. In the alternative, the union submits that this is an appropriate case for me to exercise the limited jurisdiction explicitly reserved by the parties in para. 7 to substitute the penalty.
I turn first to the facts to determine whether or not the grievor breached the condition not exceeding 10 days of absence in a calendar year. The dispute centres around the grievor’s absence for half a shift (4 hrs) on February 27, 2001. The union’s position is that the grievor was not absent that day within the meaning of the agreement. If that is the case, when he was absent on November 10th, the grievor would have had exactly 10 days of absence in 2001. Therefore he would not have been in violation of para.5(c) which refers to “more than” 10 days of absence in a calendar year. The union’s position is that the grievor’s absence on February 27th ought not count as an absence under para. 5(c) because it fell within an exception contemplated explicitly in the paragraph, namely, that it was “an authorized leave of absence”.
The grievor testified that on February 26, 2001, he called in sick, and did not report to work because he was not feeling well. He could not recall what exactly the health problem he had was, but stated that the medical note he provided would have that information. He testified that when he woke up the next day, February 27th, he felt better and reported to work. He worked half the day and was not feeling well. He advised the store manager that he wanted to go home, closed his cash and went home. When union counsel asked whether he received permission, the grievor replied in the affirmative. The next day, February 28, he was still sick and was unable to go to work. He testified that on October 12, 2001 he left work for one hour with permission to attend at a walk-in medical clinic and returned to work. Again on November 8, 2001, he left work one hour early with permission for a doctor’s appointment. Neither of those one hour absences were counted towards the total absences by the grievor for purposes of para. 5(c), but the ½ day absence on February 27th was.
The grievor testified under cross-examination that on each of the other days listed in para.8 when he was unable to attend work due to illness, he called in and spoke to the store manager or the person in charge. On none of those occasions was he told that he had to report to work.
The union does not dispute that the absences listed in para.8, other than the absence on February 27th, may properly be counted towards the 10 days for purposes of para. 5(c). The union does not argue that those constituted “authorized leaves of absences” within the meaning of para: 5(c) because the grievor had called in to inform of his inability to attend work. However, Counsel submits that February 27th was different. That day the grievor was already at work. He sought and received permission to go home. That must be held to be “an authorized leave”. Employer counsel argued on the other hand that if the absence on February 27th was an authorized leave, the other days of absence were also the same because when the grievor called in sick, he was not ordered to report to work. His absence on February 27th was no more authorized than on the other days. The union was not therefore consistent when arguing that February 27th alone was an authorized leave.
Having carefully reviewed the last chance agreement carefully in light of the submissions I received, I conclude that the parties did not intend to include in the phrase “authorized leaves of absences”, the type of absence that occurred on February 27th. Whether an employee is calling in sick from home or seeking to leave early due to illness, what he does is inform management that he is unable to work due to illness. Except in very rare cases where there is clear evidence that the employee is not in fact ill, the manager, not being a medical professional, would not be in a position to challenge the employee’s claim that he is in fact ill and to order him to report to work or to continue to work. What the manager can do is to require, if desired, that the claimed illness be substantiated by medical evidence. In the present case, the grievor testified that upon his return to work, he did provide a medical note to substantiate his absence. If the grievor’s absence had already been “authorized” it is unlikely that he would have been required to produce a medical note. Indeed, under para. 3 of the minutes, the grievor was required to provide a medical note only “after the grievor’s return to work from an unauthorized absence due to the grievor’s health”. The very goal of the minutes of settlement was to address the grievor’s absences due to illness. The employer’s concern has always been about the grievor’s calling in sick and his leaving early. It is inconceivable that the parties would have, in an agreement designed to address that very problem, intended to exempt absences resulting from calling in sick or leaving work early as constituting authorized leaves. Besides, February 26th to 28th was one continuous occasion of illness. It is artificial to draw a distinction between the grievor’s absence on the 27th and the other two days. Therefore, it is my conclusion that calling in sick instances as well as leaving work early situations do not constitute “authorized leaves of absence” within the meaning of para. 5(c). Therefore the employer was entitled to count the grievor’s absence on February 27, 2001 as a half a day of absence for purposes of the last chance agreement. It follows that at the time of his termination, the grievor had more than 10 days of absence in a calendar year, and had therefore breached the condition in para. 5(c).
Union counsel submitted two authorities in support of the union’s position. In Re Durham Board of Education, (1978) 1978 CanLII 3415 (ON LA), 19 L.A.C. (2d) 427 (Weatherill), the issue was whether the employer was entitled to deduct from a teacher’s salary, because on a “professional activity day” he left work early after having completed the required tasks, and with his principal’s permission, and spent the rest of the work day with other teachers at the Woodbine Race Track. I do not consider that decision, decided in the context of a peculiar statutory regime in the education sector to be relevant to the issue before me. Similarly, the second decision relied on by the union, Re Ramji, 1604/00 (Dissanayake), is also clearly distinguishable. In that case the central issue was whether the grievor’s leaving of work early was culpable or not. Thus the Board noted at p. 10 “Before the employer can discipline the grievor for any of the “leaving early” incidents, it must be established that the grievor was in some way culpable”. The Board found on the evidence that on each occasion he left work early, the grievor had a legitimate reason for leaving early, (including an instance of illness) and that he obtained permission from his supervisor before leaving. In the absence of culpability, it was held that the employer had no just cause to discipline the grievor. In contrast, culpability is not an issue here. For purposes of the last chance agreement, it is immaterial whether an absence was culpable or not. The condition in para. 5(c) draws no distinction between culpable and non-culpable absences. If the grievor incurs more than 10 days of absence, culpable or innocent, the condition is violated.
The remaining issue is whether I should exercise the discretion to substitute a lesser penalty in place of the termination. I will not review the case law supporting the proposition that arbitrators should hold the parties strictly to the terms of a last chance agreement, because both parties here agreed with that proposition. Some last chance agreements which specify automatic termination for breach of a condition, do not allow the arbitrator any discretion whatsoever to modify the penalty. The one before me, in contrast, does allow the arbitrator that discretion under specified circumstances. Thus para. 7 of the agreement allows that discretion “in a case where the infraction is very minor and disproportionate to discharge, taking into account the grievor’s record”.
The union submits that in the present case the grievor’s infraction should be regarded as “very minor and disproportionate to discharge”. It is pointed out that the grievor worked for more than 10 months in the calendar year 2001 without exceeding the 10 day limit. He exceeded the limit only on November 10th, less than seven weeks before the year end. And he exceeded the 10 day limit only by one half day. The union also points out that the 10 day condition was to be in effect only for a period of 2 years from the date of the grievor’s reinstatement on July 3, 2000. That period would have expired in July 2002.
Having carefully considered the union’s submissions, I am of the view that it is inappropriate for me to intervene in the particular circumstances. The parties have clearly agreed to a substantive condition requiring that the grievor’s absences in a calendar year do not exceed 10 days. On November 10th in the calendar year of 2001 the grievor had violated that substantive condition. The employer was entitled to act on its rights at that time without waiting to see how many more absences the grievor would have had in the remainder of the calendar year. Had the employer not acted, it may have faced an argument that having failed to act when the condition was breached, it was not entitled to terminate the grievor at a later time. The exceeding of the 10 day limit was not a “very minor” violation, but a violation of a substantive term, for which the parties had specified the consequence of termination. For me to intervene would be tantamount to amending the 10 day limit to a higher number. In considering whether an infraction is “very minor and disproportionate to discharge” the parties explicitly envisage that I would take into account “the grievor’s record”. In my decision of May 17, 2000, I noted the infractions attributed to the grievor at that time and noted that the employer had shown leniency in treating him. That, together with the last chance agreement entered into, should have put the grievor clearly on notice that his employment with the employer was precariously hanging by a thread and that strict compliance with the conditions he had agreed to was required. Unfortunately he failed to live up to the undertaking he made. In the circumstances, I do not consider it appropriate for me to exercise my jurisdiction to interfere with the penalty imposed by the employer.
For all of those reasons the grievances are hereby dismissed.
Dated at Toronto, this 14th day of day of March, 2002.