GSB#0973/01, 1420/ 01, 1627/01, 1674/01
UNION# 01U077, 01U094, 02U002, 02U004
IN THE MATTER OF AN ARBITRATION
Under
THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT
Before
THE GRIEVANCE SETTLEMENT BOARD
BETWEEN
Ontario Public Service Employees’ Union
(Union Grievance)
Grievor
-and-
The Crown in Right of Ontario
(Ministry of Correctional Services)
Employer
BEFORE Randi H. Abramsky Vice-Chair
FOR THE GRIEVOR Nelson Roland
Barrister and Solicitor
c/o Ryder Wright Blair & Doyle
FOR THE EMPLOYER Carol Ann Witt
Counsel
Legal Services Branch
Management Board Secretariat
HEARING February 25, 2002 and March 7, 2002.
AWARD
By order dated February 25, 2002, the parties were directed to argue “whether the universal application of Article 44.10, as set out or referred to in the April 5, 2001, May 2, 2001 and August 28, 2001 memos at the Toronto Jail, violates Article 44.10 of the collective agreement?” Article 44.10 provides as follows:
After five (5) days’ absence caused by sickness, no leave with pay shall be allowed unless a certificate of a legally qualified medical practitioner is forwarded to the employee’s manager, certifying that the employee is unable to attend to his or her official duties. Notwithstanding this provision, where it is suspected that there may be an abuse of sick leave, the employee’s manager may require an employee to submit a medical certificate for a period of absence of less than five (5) days.
Article 44.10 applies to classified employees. An identical provision, in substance, applies to unclassified employees in Article 31.8.
Facts
On April 5, 2001, Superintendent Carl DeGrandis issued a memo to all staff regarding sick calls. That memo states, in pertinent part, as follows (emphasis in original):
MEMORANDUM
TO: All Staff FROM: Carol De Grandis
Superintendent
DATE: April 5, 2001
RE: SICK CALLS
The amount of sick calls from employees purporting to be unable to attend to their duties has escalated to levels that can only be described as alarming and, on its surface, may constitute either a concerted collective or individual abuse of the sick leave provisions of the Collective Agreement. As such, I would remind staff of Article 44.10 of the Collective Agreement that, in part, states: “notwithstanding this provision where it is suspected that there may be an abuse of sick leave the employee’s manager may require an employee to submit a medical certificate for a period of absence of less than five days’.
While there are many factors that may lead me to suspect an abuse of sick credits the sheer number of such calls on weekends, absence any apparent anomalies, certainly plants in my mind the possibility or suspicion of abuse as interpreted by Article 44.10. As such when these factors add up to suspicious of abuse either individually or collectively Managers and Administrators shall invoke Management’s rights under the Collection [sic] Agreement to request a Medical Certificate form a licensed Medical Doctor to the fact that the employee was examined on the day the sick call was made and that the employee was unable to attend to their duties due to illness.
When an employee has been advised to produce a medicate certificate, prior to their next scheduled shift, and he/she fails to do so, the employee will be removed from the payroll for the date in question.
/s/
Carl De Grandis
The term “universal application” in the Order of February 25, 2002, refers to the application of Articles 44.10 and 31.8 on a collective, rather than individual, basis – based on suspected group abuse of sick leave, rather than an individual suspicion of abuse. Under this approach, all employees at the Toronto Jail, regardless of their individual absence record, were required to provide a medicate certificate for every sick leave absence, or they would not be paid.
The universal application of Article 44.10 and 31.8 was also brought to the attention of staff in a memo dated August 28, 2001, which set out additional requirements when an employee was unable to report to work, and further stated: “Employees who are absent from their scheduled tour of duty, and who do not provide notification of their absence in the prescribed method as noted above, will not be paid.”
On August 31, 2001, the Union filed a grievance, alleging a violation of the collective agreement and any related legislation “in regards to the restriction and regulation of sick leave benefit and entitlement provisions at the Toronto Jail.” The remedy sought was an order that the Employer has breached the collective agreement, a cease and desist order, and “[a]ny other remedy that the Board sees fit.”
The original hearing date on this grievance was scheduled for January 21, 2002. On January 17, 2002, the Employer issued a memo to all staff that, effective January 1, 2002, it had “ceased the practice of requiring employees to provide a medical certificate for every sick leave absence.” The memo states as follows:
MEMORANDUM
TO: All Staff
FROM: Carl DeGrandis
Superintendent
DATE: 17 January 2002
RE: SICK CALLS
In calendar year 2001 the usage of sick time was at such a rate that it resulted in an increased number of requests for Medical Certificates. Many staff members objected to the practice and felt that a universal approach was not fair and their rights were being denied.
This will confirm that effective January 1, 2002, management ceased the practice of requiring employees to provide a medical certificate for every sick leave absence.
Management at the Toronto Jail continues to take the issue of absenteeism very seriously, and in accordance with the Collective Agreement, will request a medical certificate in circumstances where it is suspected that there may be an abuse of sick leave. While we are altering our approach, taking into account staff concerns, this should not be interpreted as a diminishing or lack of determination to address the issue of the abuse of the sick leave provisions of the Collective Agreement.
/s/
Carl De Grandis
Superintendent
Positions of the Parties
- The Employer
Unexpectedly, at the hearing in this matter on March 7, 2002, counsel for the Employer acknowledged that its universal application of Articles 44.10 and 31.8 constitutes an interpretation that the collective agreement cannot reasonably bear. It accepted that its interpretation and application violated the collective agreement. Although the Employer had ceased its universal application prior to the first day of the hearing, and on January 21, 2002, it agreed to continue to cease that practice “until GSB No. 0973/01 is decided on the merits”, this was the first time that the Employer had acknowledged that applying Articles 44.10 and 31.8 on a universal or group basis, rather than on an individual basis, was an interpretation the collective agreement could not reasonably bear. Counsel also stated that all employees who lost pay as a result of the policy were in the process of being reimbursed.
With its admission, counsel for the Employer asserted that the matter was now moot and should be dismissed. It submitted that there was no longer a “lis” between the parties and that no useful labour relations purpose would be served by a declaration. In support, it cites to Re Fording Coal Limited and United Steelworkers of America, Local 7884 (2001), 2001 CanLII 62028 (BC LA), 95 L.A.C. (4th) 78 (McDonald); OPSEU (Leach) and Ministry of Solicitor General and Correctional Services (2000), GSB No. 1007/89 et al. (Fisher) and Re Welland County Roman Catholic Separate School Board and Ontario English Catholic Teachers Association (1992), 1992 CanLII 14552 (ON LA), 30 L.A.C. (4th) 353 (Brunner). Counsel suggested that the declaration would be punitive, particularly in light of the potential OPSEU strike.
- The Union
Counsel for the Union was, to say the least, surprised by the Employer’s admission and position on the merits of the issue, as well as its statement that all employees who lost pay as a result of the policy were in the process of being reimbursed. It requested a list of all affected employees and the amounts paid to them. Counsel for the Union was not prepared to address a mootness argument, but contended that the Board should issue a declaration that the universal application of Articles 44.10 and 31.8, as applied at the Toronto Jail, violated the collective agreement.
Decision
Counsel’s admission, at the hearing, that the Employer’s universal application of Article 44.10 and 31.8 of the collective agreement constituted an interpretation that the language could not reasonably bear was quite stunning. It was also, in my view, quite correct. Article 44.10 states, in pertinent part: “Notwithstanding this provision, where it is suspected that there may be an abuse of sick leave, the employee’s manager may require an employee to submit a medical certificate for a period of absence of less than five (5) days.” By its terms, an individual determination must be made that there “may be an abuse of sick leave”. Only in that case may “the employee’s manager” require “an employee” to submit a medical certificate for a period of absence of less than five (5) days.” (Emphasis added).
Abuse of sick leave is a serious matter. When large numbers of employees call in sick at the same time, it can create significant operational difficulties, and lead, as it did in this case, to a suspicion of abuse. But Article 44.10 cannot be used to address that problem on a collective or group basis, as occurred at the Toronto Jail. By its terms, there must be individual suspicion of abuse of sick leave before a medical certificate, for an absence of less than five days, may be required.
I do not conclude that this issue is moot, or that a declaration would serve no useful labour relations purpose. Although the Employer had ceased its universal application of Articles 44.10 and 31.8 at the Toronto Jail on January 1, 2002, it was not until the hearing on March 7, 2002, that the Employer acknowledged that its practice violated the collective agreement or announced that affected employees were in the process of being reimbursed. As of the date of the hearing, March 7, 2002, the issue of compensation had not been fully resolved. This fact distinguishes the cases cited by the Employer.
In contrast to the situation in Re Welland County Roman Catholic Separate School Board and Ontario English Catholic Teachers Association, supra, there is no evidence that the Union’s purpose in seeking a declaration is to score a debating point or to influence collective bargaining. Although the tensions between the parties are substantially higher at this time, the issue is an important one of contract interpretation which affected a significant number of employees.
Accordingly, I declare that the universal application of Articles 44.10 and 31.8, as applied at the Toronto Jail from April 5, 2001 until December 31, 2001, violated the collective agreement. Employees who were denied sick leave credits as a result of the universal application of Articles 44.10 and 31.8 should be reimbursed. I shall remain seized.
Dated at Toronto, this 7th day of May, 2002.