GSB# 1999-0413, 1999-0559

UNION# 99U039, 1999-0301-0001 [99B618]

IN THE MATTER OF AN ARBITRATION

Under

THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT

Before

THE GRIEVANCE SETTLEMENT BOARD

BETWEEN

Ontario Public Service Employees Union (Fogal et al.)

Union

• and -

The Crown in Right of Ontario (Ministry of the Attorney General)

Employer

BEFORE

Felicity D. Briggs

Vice-Chair

FOR THE UNION

Nelson Roland Barrister and Solicitor

FOR THE EMPLOYER

Sean Kearney Senior Counsel Management Board Secretariat

HEARING

May 25, June 1 & 11, July 4, 12 & 19, September 5, 6 & 20, October 17, November 1, 2, 13 & 29, December 5 & 19, 2001; January 10 & 23 and July 29, 2002; November 16, 2004

CONFERENCE CALL

January 7, 2003.

Decision

During negotiations for the January 1, 1999 to December 31, 2001 Collective Agreement, the parties signed a Memorandum of Agreement dated March 18, 1999 that stated, in part:

In recognition that the parties have reached a tentative collective agreement, the union undertakes that it will communicate to its members not to engage in strike related activity.

The employer undertakes that where strike related activity occurs it will notify the Union as soon as possible and the Union will undertake to take the necessary steps to remedy the problem.

Failing the resolution of the problem, the following process shall apply:

1. MBS will be consulted by line Ministries and/or Agencies prior to the imposition of any discipline.

2. Any disciplinary action taken by the Ministry and/or Agency as a result of pre-strike activities by an employee shall be placed before a mediator/arbitrator prior to the actual discipline being applied.

On May 3, 1999 the Employer sent a letter to the Union that stated, in part:

This is to inform you that, as part of non-disciplinary action, certain OPSEU employees engaged in illegal strike activity during March 1999, will not be paid for the period of the activity. Further, as disciplinary action under the memorandum, ministries will be sending letters of reprimand to the employees involved. Attached you will find a list of the specific employees, their ministry, location and the dates of the illegal strike activity.

It was the Employer’s assertion that a large number of employees improperly failed to appear for work as scheduled alleging illness. As stated in the above letter, the Employer did not pay many affected employees for the time they were away from work. Additionally, in some circumstances employees had been paid for the time and the Employer “recovered” those monies.

In accordance with the Memorandum of Agreement, the parties asked the Board to mediate/arbitrate the two issues in dispute. At the first day of hearing the parties agreed that I would have jurisdiction over all of the outstanding matters flowing from the Memorandum of Agreement, whether direct or indirect. The dispute was fairly substantial in size given that there were in excess of four hundred employees from three ministries and twenty different workplaces involved.

At a hearing day on September 7, 2000, the Employer informed the Board and the Union that it would not proceed with the issue of the imposition of discipline. Accordingly, no employee was disciplined for these activities. However, that left the issue of whether sick leave would be paid for those employees who did not attend at work. Given the vast number of employees involved and the potential for lengthy litigation, the parties made submissions about the process that should be followed for the efficient management of the outstanding matters. In a decision issued on November 28, 2000, I determined the process to be followed. Individuals who wished to challenge the validity of the Employer’s actions were instructed to produce a “will-say” statement containing the nature of his/her illness; how the illness precluded his/her from working; and the medical treatment provided. In addition, the employees were to have any supporting documentation accompany their will-say statement all of which was to be provided to the Employer’s counsel a week prior to the hearing date. At page 4 of that decision I said:

In accordance with an earlier ruling issued to the parties in a letter, medical certificates can be proffered into evidence and I will determine how much weight those documents shall be given on a case by case basis.

In accordance with that procedure, we scheduled hearing days at Correctional facilities and other locations around the Province over the course of many months. In large measure, the above process was followed without incident. Notice was sent to individuals involved and each was given an opportunity to testify as to the reasons for their absence. A number chose not to avail themselves of these proceedings.

The actual date(s) of the absences varied from institution to institution although all were within a one week period in March of 1999. Some employees were absent from the work place for one day, while others were away for two or three days.

At each hearing the Employer provided statistics regarding the average number of employees absent from the workplace due to illness on any particular day. At every institution for the days at issue the number of employees who had either called in sick or failed to appear for work was much larger than the average. For example, at OCI the average number of employees absent due to illness per day is 6 or 7. On the days at issue there were 35 employees absent. At Quinte Correctional Centre there were 37 Correctional Officers and 30 of those were absent on one day.

During the course of the many days of hearing I attempted to resolve this matter without the need of a decision. Multiple attempts were made in this regard including efforts made subsequent to many days of evidence. Unfortunately mediation was not successful and final argument was heard on November 16th, 2004.

I have no intention of setting out the considerable evidence I heard from hundreds of employees. I will address some aspects of the evidence later. However, some general comments and observations are in order at this point. The evidence disclosed that not all management personnel at every institution dealt with the large number of absences in the same fashion. It is fair to say that in large measure employees who had been absent were told to provide a medical note upon their return and that was the extent of the instruction. However, some Correctional Officers testified that they were told that a medical note would ensure payment for their absence. In two such instances I heard evidence from management witnesses refuting those assertions. I will deal with this in more detail later in this decision. Further, two other institutions issued written instructions to employees. Again, I will return to those instances later.

UNION SUBMISSIONS

Mr. Roland, for the Union, submitted that in this matter each member of the bargaining unit who was affected by these proceedings should have the facts of their own situation considered on its own merits. This is not an instance where there should be some general principle applied as suggested by the Employer. The Union conceded that the absences were in the final hours before a possible strike. However, that does not relieve this Board of its duty to consider each facts situation individually. In the instant matter, the Board should fact the overarching relationship between these parties into any analysis.

Regarding the request for medical certificates, it was the Union’s view that the Employer should be held to a consistent standard. That is to say, that although the evidence was inconsistent regarding how medical certificates would be applied, this Board should determine that anyone who was ordered to bring a medical certificate and complied should be paid for their sick leave. It would be wrong for this Board to allow the Employer to inconsistently apply whatever policy it developed regarding medical certificates. Further, a high standard of particularity cannot be applied for medical certificates in this matter given the truncated procedure for the litigation.

The Union relied upon Re Domglas Inc. and Aluminium, Brick & Glass Workers International Union, Local 203G (1988), 1988 CanLII 9280 (ON LA), 33 L.A.C. (3d) 88 (Dissanayake). Finally, the Union suggested that consideration should be given to a potential negative impact that might be the result of a finding in favour of the Employer.

EMPLOYER SUBMISSIONS

Mr. Kearney, for the Employer, submitted that this matter is about the Employer’s right to question bona fide illness. There can be no doubt that on the days at issue there was excessive absenteeism around the Province in correctional facilities. The Employer provided uncontested attendance statistics in this regard. While the Union is urging this Board to find that the mere production of a medical certificate, however vague, is sufficient for sick leave to be paid, against the backdrop of these facts, it would be improper to do so. Further, in cases such as this the onus is on the grievor to establish that the illness was bona fide.

Article 44.10 of the Collective Agreement states:

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.

The Employer relied upon The Crown in Right of Ontario (The Ministry of Community and Social Services) and OPSEU (Dorman) (July 27, 21978), unreported (Swinton) wherein it was stated at page 6:

….The cases cited show that the probative value of a medical certificate depends in part on the thoroughness of the diagnosis contained therein and the date of the medical examination in relation to the date of the illness. An employer is not required to accept a medical certificate which is in a standard form with little or no diagnosis as proof that the employee was absent due to illness. Of course, if the employer takes disciplinary action because of doubt as the adequacy of the reason for the absence, it may find its conclusions and actions challenged at arbitration proceedings.

In this grievance, the grievor admittedly was at home because of a family crisis and the medical certificate was obtained several days after his return to work. The medical certificate which he then presented to his employer is one to which little weight can be given. He admittedly did not see Dr. Barry till December 27. Had the diagnosis been fuller, the delay might not have been fatal because of Dorman’s long-term familiarity with this doctor and Dr. Barry’s awareness of the previous family problems. However, Dr. Barry’s diagnosis or explanation reveals nothing about an illness. He states that Dorman “reported problem to me”. No further elaboration was obtained by Mr. Dorman at any stage in the grievance procedure, even though the employer rejected the original medical certificate. The only elaboration of his condition is a letter from Dan Devlin, Supervisor of the Children’s Aid Society in Smith Falls to the Administrator of the Centre dated January 24, 1978 (Ex. 21). It states that Mr. Dorman was under “a great deal of stress” due to serious family problems in the past several months. This is true, but does not prove that Mr. Dorman was ill December 19 and 20.

The question becomes whether the employer should have asked Mr. Dorman for a further certificate or required him to undergo a medical examination. The onus is on the grievor to show that he was entitled to sick leave. He had initially indicated to the employer that his absence was due to family problems. As a result, he was told to obtain a medical certificate. This should have indicated the need for a medical report from Dr. Barry sufficient to show that he was ill because of these problems. Such a report might still have been obtained during the grievance procedure.

Mr. Kearney submitted that the Board’s jurisprudence is clear that the onus is on the employees to establish the legitimacy of their illness. In the matter at hand, most of the medical certificates were woefully inadequate either because they contained little of no information or because they were sought and obtained after the absence and therefore were nothing more than a medical recitation of what the patient belatedly reported. For those reasons the certificates should be given little or no weight by this Board.

The Employer also replied upon Re Gilbarco Canada Ltd. And Canadian Union of Golden Triangle Workers (1973), 1973 CanLII 2037 (ON LA), 5 L.A.C. (2d) 205 (O’Shea); Re The Crown in Right of Ontario (Ministry of Transportation) and OPSEU (Johnson) (September 2, 1992), unreported (Dissanayake); and Re The Crown in Right of Ontario (Ministry of Health) and OPSEU (Oltman) (August 30, 1990), unreported (Wilson).

DECISION

I begin by acknowledging the Union’s point that harm can be done to the relationship between these parties if “salt be poured into this old wound”. However, in my view, it would be wrong if I decided this matter on the basis that potential harm might occur if there is a finding against many employees working predominantly in the Ministry responsible for Corrections. The issues at hand must be determined in accordance with the usual arbitral practices. While there might be some short term attraction for the Union if its suggested method was applied in this case, that initial glee would quickly be replaced with a foreboding uncertainty about what other fact situations Vice Chairs might think appropriate to utilize such an approach.

I also acknowledge that there is concern that the matter has taken a considerable period of time although no one is at fault for this. It goes without saying that the time involved to visit each of these workplaces and hear the necessary evidence involved many days spread of numerous months. Further, as mentioned earlier, time was also taken in various attempts to resolve the issue between the parties.

As indicated earlier, I will not be setting out detail regarding the hours and hours of evidence I heard. Employees were given notice of the hearing and ample opportunity to provide whatever documentation they thought important. In many instances I was provided the medical certificate in advance of the commencement of the hearing day.

I am compelled to say, simply and regrettably, that much of the evidence I heard was, to say the least, insufficient for a finding in favour of many of the bargaining unit members. On occasion viva voce evidence was dissimilar to the information provided on the medical certificate. Some witnesses were vague while others were evasive. A few witnesses were almost hostile. At one institution there appeared to be a “collective amnesia” about any details surrounding the days at issue. Some witnesses were able to recall in detail who they spoke with when they telephoned the institution to report their absence including the substance of that discussion but were unable to recall what illness kept them from working. I heard evidence from witnesses regarding the “usual” illness that causes them to be absent from the workplace without any specifics about the days at issue. From time to time the deportment of a witness led me to believe their evidence was something less than forthright.

In many instances various employees told me that they are not abusers of sick leave. I do not doubt those assertions. However, in the facts of this case, on a balance of probabilities, it is highly unlikely that on three days in the middle of March of 1999 when a strike date was looming, over four hundred employees at twenty different institutions became ill at the same time.

At no point did I hear evidence of a facility-wide malady nor did the Union ever suggest such an epidemic existed. I did not hear that the absent employees were out of the workplace on the days at issue because of, for example, some form of food poisoning or twenty-four hour flu. Indeed, there was no explanation as to how it might have happened that such a large number of employees fell ill on the same day.

Further, and certainly worthy of note, I heard from some witnesses who clearly and forthrightly discussed the “blue flu”. Others gave similar evidence without using that phrase however it was indicative of some form of concerted activity regarding a massive “sick in”.

It happened occasionally during the many days of hearing that some individuals attended but refused to disclose the nature of their illness. Some suggested that the nature of their illness was too personal in nature to discuss while others candidly said that it was none of my business. When such reluctance occurred, it was acknowledged that non-disclosure was within the rights of the witness. However, each was advised that a failure to provide evidence regarding their absence from the workplace on the days at issue would be disadvantageous given that I could not assess the merits of the situation. Further, individuals who testified were assured that the details of their evidence would not be set out in this decision.

The majority of the medical certificates are, in large measure, of little assistance. Many revealed that an opinion was sought of the physician after the individual had returned to the workplace. A number of certificates indicated merely what was “reported” to the physician by their patient, again making clear that an examination did not occur at the salient time. I was also provided with medical certificates that stated only that the employee was now fit to return to work. In this regard, I have been guided by the earlier decision of this Board in Re Dorman (supra). I accept Vice Chair Swinton’s decision that “an employer is not required to accept a medical certificate which is in a standard form with little or not diagnosis as proof that the employee was absent due to illness” and that “the onus is on the grievor to show that he was entitled to sick leave”. Simply put, I am of the view that many witnesses fell short of discharging that onus.

During the course of the hearings, the Employer provided various documents touching upon the matters at hand. That information has certainly been taken into account in arriving at this decision. The documents included:

• Absenteeism statistics for each institution that clearly revealed, without exception, that the number of employees who absented themselves from the workplace on the days at issue were many times that of the average day.

• Work schedules for the month of March and in some instances for the months surrounding March. This information provided the context of the scheduled and actual work schedule for each employee as well as the schedule for each institution in its entirety.

• An account of the amount of sick time utilized by members of the bargaining unit for the period of time immediately surrounding the days at issue. These revealed that the number of employees absenting themselves due to illness was, by large measure, normal immediately before and after the days at issue.

• Daily duty rosters

• Staff absence reports

• Overtime records

It was common ground that these absences occurred just prior to a strike. It is in this overall context that I am compelled to say I am sceptical that all of the grievors were legitimately ill. To be clear, had their viva voce and documentary evidence been convincing this would have been a different matter, but most simply did not provide evidence that would lead me to a finding in their favour.

Some of the employees have already had sick leave taken off their pay. In other institutions the Employer agreed to wait for this decision before taking any action. Further, the length of the absence varied from one to three shifts. I will not set out the various amounts of time taken by different employees. Therefore, I leave it to the parties to implement this decision although I remain seized in the event there are difficulties.

I will set out each of the institutions and a list of people who should receive (or should have received) sick leave. Such a finding is for the period, however long, of their absence. All others who gave evidence before me are not entitled to sick leave. I will not be listing those employees. Attached to the May 3, 1999 letter referred to above was a list of those employees the Employer alleged were involved. Over time, the Employer elected not to challenge the absence of some of those employees. I have attempted to capture those employees although the list of exemptions might not be exhaustive.

Sault Ste. Marie Jail

Exempted: Thomsen MacLeod Thibodeau Sleeman Young Stevenson

Entitled: Pandzic O’Hara Leblanc Pasqua

Quinte Detention Centre

Exempted: H. Smith

Entitled: Gora Payette Crouse Cook McDonald

Northern Treatment Centre

Exempted: Reville Bishop

Entitled: Cowley Kyner Pighin Dickie Abner Fournier Lees

Cecil Facer Youth Centre

Entitled: Bede Lessard

Sudbury Jail

Exempted: Hebert

Entitled: Belland Juhas Frozel Bignucolo McCausland

Peterborough Jail

Entitled: Humphris Porter Riches

Lindsay Jail

Entitled: Keenan

Mimico Detention Centre (March 17th only)

Exempted: Kopanyshyn Saldanha

Entitled: Troy Labeau Kruger Malcolm MacInnis Aversa

Thunder Bay Correctional Centre

Exempted: Hauth McNeil Robertson Brewitt Kostamo Neverly Kohut

Entitled: Penney Herchak Germain

Sarnia Jail

Entitled: Wilson

OCI (Brampton)

I was informed that the local took the position that an arrangement had been made between it and the Employer. For that reason the Union was of the view that there was no outstanding issue in this regard. No one attended to give evidence at the scheduled hearing and so none of the contested employees (if any) are entitled.

Oshawa Office of Attorney General

The Union raised a preliminary matter asserting that I should hold the Employer to a strict reading of the particular letter that was sent to employees at this office regarding the need for medical certificates. Employees were given a letter that, in the Union’s view, gave an express assurance that if a medical certificate was provided they would be entitled to sick leave. I concur with the Union’s view in this regard and as a result all employees who provided medical certificates are entitled to sick leave.

Stratford Jail

Entitled: Buruma

Owen Sound Jail

Entitled: Weiler Beckett

Brockville Jail

Entitled: Ward Dyks

Monteith Correctional Complex

Exempted: Lefebvre

Entitled: Cummings Labelle Giles Danis Belair Lavictoire

Wellington Detention Centre

Exempted: Clive Lee Marcotte Wilson Jones

Whitby Jail

This is a situation similar to the Oshawa office of the Attorney General. The Employer sent a memo to those who were absent during this period. The Union argued that this memo expressly assured payment of sick leave upon production of a medical certificate. I am not convinced that the assurance is express. However, in my view, that assurance was certainly implied. Therefore, in these circumstances I am compelled to find that those employees who provided notes are entitled to sick leave.

Entitled: Lapierre Due Boyd Tefoglou Phillips Lucifora Doiron Burns

Hamilton Detention Centre

Entitled: none

As mentioned earlier, I have some sympathy for the Union’s view that implementation of this decision might be counterproductive to the ongoing labour relationship between these parties. The Employer’s view was that actions have consequences and it would be wrong to overlook the events of 1999. I cannot take issue with that view. Having said that, I would hope that the Employer will consider the Union’s concerns upon receipt of this decision.

Dated in Toronto this 16th day of March, 2005.