Grievance Settlement Board
GSB#2008-2793, 2008-2794, 2008-2828, 2008-3084, 2008-3085, 2008-3155, 2008-3156, 2008-3157, 2008-3158
UNION#2008-0369-0368, 2008-0369-0369, 2008-0369-0375, 2008-0369-0399, 2008-0369-0400, 2008-0369-0403, 2008-0369-0404, 2008-0369-0405, 2008-0369-0406
IN THE MATTER OF AN ARBITRATION
Under
THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT
Before
THE GRIEVANCE SETTLEMENT BOARD
BETWEEN
Ontario Public Service Employees Union (Pilger et al)
Union
- and -
The Crown in Right of Ontario (Ministry of Community Safety and Correctional Services)
Employer
BEFORE
Randi H. Abramsky
Vice-Chair
FOR THE UNION
David Wright Ryder Wright Blair & Holmes LLP Barristers and Solicitors
FOR THE EMPLOYER
Suneel Bahal Ministry of Government Services Labour Practice Group Counsel
HEARING
October 15, 2010, March 2, May 4 & May 30, July 20, 2011.
DECISION
1There are nine individual grievances before me, although the parties elected to proceed solely with the evidence of two grievors at this time. The grievances assert that the Employer has violated Articles 2 (Management Rights) and 3 (Discrimination) of the collective agreement and the Ontario Human Rights Code. It is undisputed that the grievances also involve an allegation that the Employer has violated Article 44.10 as well as the “just cause” requirement of the collective agreement. Essentially, the grievances contend that the Employer improperly reviewed the grievors’ attendance for pattern absenteeism, held “disciplinary” meetings concerning their attendance, and, in certain cases, improperly required the grievors to submit medical certificates for any absence for a thirty day period.
Facts
2All of the grievors are Correctional Officers at Central North Correctional Centre (CNCC). That facility, from 2000 to 2006, had been involved in a public-private partnership whereby correctional services and management of CNCC were provided by a private entity. That arrangement ended in November 2006, and the Ministry of Community Safety and Correctional Services once again resumed management of the facility. The majority of employees remained throughout this time period.
3In the Spring of 2008, it was noted that absenteeism had increased significantly after the Ministry resumed management of the facility. From an average absenteeism rate of between 9 and 10 days per employee per year while under private sector management, the level of absenteeism had significantly increased afterward. This led the Northern Region to request a review of pattern absences, based on a document entitled “Culpable Absenteeism/Suspected Abuse of Sick Leave: Best Practices.” That document provides a section entitled “Reasonable Grounds to Suspect Abuse” which provides, in relevant part, as follows:
Reasonable Grounds to Suspect Abuse
In order to require an employee to provide a medical certificate before the required number of days has expired (five for OPSEU…) the employer must have reasonable grounds to suspect that the employee is not sick or injured.
There are a number of circumstances that may reasonably raise the suspicion of the employer:
(1) An employee requests and is denied leave for a specific day and later calls in sick on/for that day.
(2) A review of an individual’s attendance record indicates a pattern of absences. The stronger the pattern the more legitimate the suspicion. It is imperative that accurate records have been kept if considering pattern absences. Patterns of absence that may cause suspicion are, for example:
where an employee regularly calls in sick on a certain day of the week or at a certain time of the year;
where an employee takes excessive sick time combined with excessive overtime or overtime for shifts that immediately follow the absence due to illness;
where spouses of co-workers call in sick such that they are off at the same time; or
other patterns.
(3) A special event is occurring in the community that the employee or a group of employees is or are likely to attend, for example a hockey tournament.
(4) A number of employees call in sick at the same time in a concerted manner (an illegal strike, or “blue flu.”)
4At the time of this directive Robyn Kasha was Assistant Deputy Superintendent of Administration. She was subsequently promoted to Acting Superintendent and has since become Superintendent. At the direction of the Superintendent at the time, Ms. Kasha and Manager of Administration-Staff Services Doug Houghton developed criteria to review the attendance records of all staff. CNCC has over 400 full-time staff, including 330 full-time Correctional Offices, 35 Operational Managers, and approximately 60 support staff, plus unclassified Correctional Officers. The attendance of all staff and management was reviewed, with the focus exclusively on sick days used – not WSIB or other types of absences.
5The first review dealt with the employees’ 2007 absenteeism level. Employees who had more than 25 sick days (which was more than double the institutional average) were identified. Then, absenteeism for 2008 (through the end of August 2008) was reviewed, with employees already meeting the institutional average of 11.5 identified. Then Mr. Houghton went through the employees’ medical records to determine if there was a medical basis for the absenteeism level. In his position as Manager of Administration-Staff Services, Mr. Houghton was responsible for the Employer’s attendance management program – at the time, the Attendance Support Program (ASP), and thus had access to employee medical information. If there was a medically supported basis for the absenteeism record, the employee was eliminated from further review.
6The ASP deals strictly with non-culpable absenteeism. The review done by the Employer in the Fall of 2008 dealt with the same absences, but reviewed them for potential patterns and thus, potentially, culpable absenteeism.
7With the remaining employees, Mr. Houghton looked for “patterns” of absence, based on the criteria developed with Ms. Kasha and the management team. A pattern was defined as five (5) or more instances. Both Mr. Houghton and Ms. Kasha testified that it was believed that 5 or more instances was a “reasonable” criteria. As Ms. Kasha explained, one could be an anomaly, two could be a coincidence, but by five or more, it seemed to be a reasonable basis for assessing a potential pattern. The patterns reviewed were absences which extended time off between shifts, absences in conjunction with vacation or lieu time, absences on weekends, and absences coinciding with overtime shifts.
8Employees at CNCC work a “compressed work” week schedule. For Ms. Mijatovic, one of the grievors, that meant 4 days on, 2 off, 4 on, 2 off, 3 on, 3 off, 3 on, 4 off, 3 on, 3 off, 3 on, 2 off, 4 on, 2 off, 4 on, 10 off. The shifts she worked – days, afternoon, nights -also varied.
9In all, 14 OPSEU employees (and two non-OPSEU employees) were identified as potentially having suspicious patterns of absence, and the Employer elected to meet with those employees – as Ms. Kasha phrased it – “to discuss our concerns and clarify expectations” – as well as to hear the employees’ explanations. Ms. Kasha was clear that these were not disciplinary meetings, but potentially could lead to discipline. They were not “allegation” meetings, as that term is used in the Ministry.
10Both of the grievors who testified – Ms. Zdenka Mijatovic and Mr. James Landriault – received such letters, which were nearly identical, dated October 16, 2008. The letters, from Acting Superintendent Kasha, note that “[a] review of patterned absences from work has been undertaken for all staff”, advised that a meeting with her and another manager would be taking place and when that would be. It further states: “The purpose of this meeting is for us to discuss the Employer’s concerns regarding your year-to date Short Term Sickness absences. A calendar documenting your absences, from January 1, 2008 through August 31, 2008 has been attached for your reference.” It further states that “[y]ou are entitled to bring a union representative to the meeting.” The attached calendars actually covered the time period from October 2007 to August 2008 – a period of 11 months. These letters were hand-delivered to the individual recipients in a sealed envelope, marked “confidential” and for which they had to sign that they had received.
11Ms. Mijatovic has been a Correctional Officer since April 2003, and a full-time officer since October 2007. From January 25, 2008 to July 2008, she was in the Attendance Support Program. She successfully exited that program in July 2008. When she received the October 16, 2008 letter, she felt “a little shocked, scared and upset.” She had thought that since she had successfully exited the ASP, she had addressed her attendance issues, yet now the same absences were being reviewed for potential culpability. She was not aware of the difference between culpable and non-culpable absenteeism, or that the ASP covered only non-culpable absences.
12By both her account and that of Ms. Kasha, Ms. Mijatovic was very emotionally upset during the attendance meeting, which took place on November 12, 2008. Ms. Mijatovic testified that she was upset and had a hard time talking and lost her composure. A number of breaks were taken to provide Ms. Mijatovic with an opportunity to compose herself. She felt upset, embarrassed, nervous and scared.
13The meeting was attended by Ms. Kasha, Assistant Deputy Superintendent Cadwell, a Union Representative and Ms. Mijatovic. During the meeting, Ms. Kasha described the two different types of absenteeism - culpable and non-culpable, and assured Ms. Mijatovic that the meeting was not disciplinary and would not be on her personnel file. Ms. Kasha reviewed Ms. Mijatovic’s calendar and expressed the Employer’s concerns about the number of sick days taken which extended her time off between sets of shifts (16) and the number of weekend sick days (11) taken. At the hearing, Ms. Mijatovic testified that her absences were due to “some migraines”, a “sensitive stomach” and “other reasons.” She could not recall, however, if she mentioned that at the meeting, nor could she recall if she had raised these medical issues during her ASP meetings. It was the Employer’s evidence that she did not. She acknowledged that she had the opportunity to explain her absences and provide information at the meeting, and that management, throughout the meeting, acted professionally and supportive. Due to her emotional upset, management allowed Ms. Mijatovic to leave her shift for the rest of the day with pay, based on compassionate grounds. At no time when these absences occurred was Ms. Mijatovic asked to submit a medical note, nor has she ever been disciplined for her absenteeism.
14On November 12, 2008, the date of the meeting, Ms. Mijatovic filed her grievance in this matter. On November 14, 2008, Superintendent Kasha wrote a letter to her entitled “Pattern Absence Meeting Confirmation Letter.” The letter states, in pertinent part, as follows:
On November 12, 2008, you and your representative met with me to discuss concerns regarding your year-to-date short-term sick absences. At this meeting, you were advised that management’s concern was based upon a pattern of absences. You were shown documents that demonstrated a reasonable basis for this concern.
The information that you provided at the meeting addressed the employer’s concern at this time.
A further review of short-term sick absence patterns will be conducted during the first quarter of 2009. Staff identified as exhibiting a pattern of sick absences that cause concern will be contacted and a meeting arranged.
As discussed, you are encouraged to utilize the various support systems available to ensure your attendance at work.
Ms. Kasha testified that she decided that she would not require Ms. Mijatovic to submit medical notes for future absences because she felt, based on the meeting, that Ms. Mijatovic “understood our concerns.” She decided to take a “wait and see” approach. In addition, by the time of the meeting, Ms. Mijatovic did not have “too many absences.”
15On November 21, 2008, Ms. Mijatovic wrote to Ms. Kasha, identifying matters that were discussed during the meeting of November 12 but were not included in her letter, such as her successful exit from the ASP, nor a clear statement that the meeting was not a disciplinary meeting. It also did not include that she did not need to bring in a doctor’s note for any sick absences in the next thirty days. Ms. Kasha did not respond to this letter. Ms. Kasha explained that she did not because the grievance concerning the meeting had already been filed.
16Ms. Mijatovic testified that after the meeting, two managers mentioned their surprise that she was “part of that group”, referring to the pattern absence meetings. She acknowledged, however, that she had showed her calendar to other employees to compare and confided to a few employees that she was called to a meeting about it. She could not recall if she discussed it with the managers
17Mr. Landriault met with Ms. Kasha, Assistant Deputy Superintendent Caldwell, and a Union Representative on November 12, 2008. He, too, had been in the ASP program but had successfully exited the program in April 2008. He testified that he received a letter informing him about a meeting to discuss pattern absences, along with a calendar of his absences attached. He stated that he was at first confused by the meeting, wondering why these “patterns” had not been noted before while he was in the ASP program, and then he became angry and upset. He thought it was “ridiculous” because they could find a pattern in anything, and they were treating all of his absences as culpable. He testified that his high absenteeism in 2007 was because of the death of his mother in March 2007, after which he could not work for a month. Then, on October 14, 2007, his grandmother passed away and on October 16 his son was born. His attendance calendar shows that in October 2007 he took three bereavement days, followed by three lieu days and four vacation days – none of which were counted in the Employer’s analysis. He also stated that he had headaches, which he believed at the time were migraines. He did not, however, see his doctor about his headaches until November 18, 2008 – after the attendance meeting. He testified that he “didn’t need to” until he was questioned. In March 2010, his doctor advised that his headaches were tension headaches, not migraines. Nor did Mr. Landriault ever mention migraine headaches during his ASP meetings. He explained that he was never asked for such information – the Ministry had only wanted to know if it could assist him in achieving improved attendance.
18At the November 12, 2008 meeting, the employer discussed its concerns about Mr. Landriault’s use of sick time – 29 absences in 2007 and 26 absences through the end of August in 2008, including 17 instances where it extended time off between scheduled shifts and 9 times where sick days coincided with overtime worked. Mr. Landriault had never been asked to produce a medical note in connection with these absences.
19Superintendent Kasha testified that she determined that the Employer’s concerns were not sufficiently addressed and Mr. Landriault would be required to submit medical notes for his absences during the next thirty (30) days, unless there was a reasonable explanation for why he could not do so. On November 14, 2008, he received a letter from Superintendent Kasha which stated, in relevant part, as follows:
On November 12, 2008, you and your representative met with me to discuss concerns regarding your year-to-date short-term sick absence. At this meeting, you were advised that management’s concern was based upon a pattern of absences. You were shown documents that demonstrated a reasonable basis for this concern. As a result, you were advised that for a period of one month from the date of our meeting, you would be required to provide a medical certificate for every absence. If, in this one-month period, a culpable absence is demonstrated, a further meeting will be arranged and the periods of review may be extended.
In order to be acceptable, a medical certificate must meet the following requirements. …
Failure to provide medical certificates in accordance with this direction, in the absence of a reasonable justification, may lead to a loss of pay for the day(s) in question.
As discussed you are encouraged to utilize the various support systems available to ensure your attendance at work.
20Mr. Landriault testified that he was not absent during the following month, and so the requirement became “moot.” Because of the number of his absences, however, he was also placed back into the ASP program. He testified that since then he has tried not to use sick time even when sick because he did not want to progress in the ASP program. Instead, he was utilizing other credits, particularly vacation time, to cover his illness as well as the illness of his children. In his view, it was not easy to go to the doctor since it involved a two hour drive, or going to the emergency room since there was no walk-in clinic available. Mr. Landriault filed his grievance on November 12, 2009.
Positions of the Parties
The Union
21The Union has raised a number of issues in regard to the Employer’s actions in this matter. First, it asserts that the attendance meetings held in regard to pattern absenteeism were “disciplinary” meetings. The Employer, in essence, alleged that the grievor’s were “faking it.” Ms. Mijatovic was stressed and distressed by this. In terms of Ms. Mijatovic, it notes that the letter she received states that the Employer’s “concerns” were addressed “at this time”, but that monitoring will continue and further meetings might follow. Further, despite assuring her verbally that the meeting was not disciplinary, Supt. Kasha did not put that assurance in her November 14, 2008 letter, nor amend the letter to reflect that when Ms. Mijatovic requested that the Employer do so. In addition word of her inclusion in the group got out, and manager’s made comments that she was “part of that group”, impacting her reputation at the facility. In terms of Mr. Landriault, the Union contends that the November 14, 2008 letter was disciplinary by demanding he provide medical notes (a punishment) as well as by the tone and terms of the letter. It submits that the letter and medical note requirement is a punishment or chastisement for his pattern of absences.
22In support of its position that the attendance meetings and letters were “disciplinary”, the Union cites to Re OPSEU (Fitzgerald) and Ministry of Correctional Services, GSB No. 1489/88 (Samuels); Re Hilton Villa Care Centre and British Columbia Nurses’ Association (Denes Grievance) (2003), 2003 CanLII 89611 (BC LA), 115 L.A.C. (4th) 154 (Gordon).
23The Union also asserts that the Employer’s use of the same absences for non-culpable and culpable review constitutes a form of “double-jeopardy.” It submits that both Ms. Mijatovic and Mr. Landriault had successfully exited the ASP program, and so reasonably thought that they had addressed the employer’s concerns about their attendance, only to have the same absences reviewed in terms of culpable patterned absences. It submits that this is an improper mixing of culpable and non-culpable absenteeism. In this regard, the Union cites to Re Scarborough Fire Fighters’ Association, Local 727 and City of Scarborough (Attendance Program Grievance)[1995] O.L.A.A. No. 9 (Mitchnick); Re Communication, Energy & Production Workers Union, Local 33-X and Hydro Agri Canada (Attendance Management Program)(2001), 2001 CanLII 62136 (ON LA), 95 L.A.C. (4th) 99 (Whitaker).
24The Union also asserts that the methodology used by the Employer to determine “patterns” of absenteeism was fundamentally flawed because it failed to consider that the employees work a compressed work week. In the Union’s view, that work configuration led to far more times when an absence would fall into one of the alleged patterns. By its calculation, up to 80% of days could fall into one of the categories. The methodology, it submits, also fails to consider that employees do not control when overtime is offered. It argues that an employee may be sick one day, yet work overtime the next and it does not mean that they were not really sick on the prior day. It submits that it is an improper assumption by the employer, and an unreasonable exercise of management’s rights.
25The Union further asserts that the Employer’s requirement on Mr. Landriault to submit medical notes for the next thirty days violated Article 44.10 of the collective agreement. It contends that because the collective agreement specifically allows the Employer to require employees to provide a medical certificate after five days of absence, to require it for only one day’s absence violates the collective agreement. It also contends that imposing a blanket requirement for employees to submit a medical certificate to support an absence is an abdication of the discretion that must be exercised in each case of absence. In the Union’s view, the discretion to be exercised is temporally related to the actual absence and cannot be decided in advance. In support, the Union cites to Re Municipality of Metropolitan Toronto and CUPE, Local 79 (1982), 1986 CanLII 6752 (ON LA), 23 L.A.C. (3d) 271 (Burkett); Re St. Joseph’s General Hospital Elliot Lake and Ontario Nurses’ Association (Osborne-May Grievance)(2008), 170 L.A.C. (4th) 115 (Sheehan); Re St. Michael’s Extended Care Centre and Canadian Health Guild (1994), 1994 CanLII 18770 (AB GAA), 40 L.A.C. (4th) 105 (Smith); Re City of Toronto and CUPE, Local 79 ( 1984), 1984 CanLII 5227 (ON LA), 16 L.A.C. (3d) 384 (M. Picher); Re NAV Canada and Canadian Air Traffic Controllers Association (2000), 86 L.A.C. (4th) 310 (Brault); Re I.U.O.E., Local 951 and Health Sciences Centre (2003) 2003 CanLII 89618 (MB LA), 114 L.A.C. (4th) 400 (Spivak); Re Manitoba and Manitoba Government Employees’ Union [2007] M.G.A.D. No. 40 (Jones).
The Employer
26The Employer submits that it acted reasonably and in compliance with the collective agreement when it reviewed the grievor’s attendance records and met with them concerning potential patterns of absence. It submits that neither the meetings, nor the letters were disciplinary, noting that the letters are not in the employee’s personnel file. It contends that none of the hallmarks of discipline are present here, nor was the meeting to discuss attendance in and of itself disciplinary. It could, potentially, lead to discipline, but the meeting to discuss identified patterns of absence was not, by itself, discipline. Nor does Ms. Mijatovic’s emotional reaction to the meeting indicate that the meeting was disciplinary. The tone of the meeting was at all times professional. Its purpose was not to punish but to put the employees on notice of the Employer’s concerns. In terms of Superintendent Kasha’s failure to reply to Ms. Mijatovic’s November 21 letter, she did not do so because a grievance concerning the meeting had been filed. In support, the Employer cites to Re OPSEU (Union Grievance) and Ministry of the Solicitor General and Correctional Services/Management Board Secretariat, GSB No. 1925/96 (Abramsky); Re OPSEU (Selkirk) and Ministry of Correctional Services, GSB No. 206/84 (Roberts); Re OPSEU (Halall) and Ministry of Agriculture, Food & Rural Affairs, GSB No. 2007-1045 (Briggs); Re OPSEU (Moody) and Ministry of Correctional Services, GSB No. 2446/90 (Kaplan).
27The Employer further contends that union representatives were allowed to attend the meetings not because the meeting was imposing discipline, but because it is required by Article 44.13, if the meeting is to be allowed into evidence before the Grievance Settlement Board. Article 44.13 states:
Attendance Review Meetings
44.13 Where an employee is interviewed by a member or members of management in respect of the employee’s record of attendance at work, no evidence of that interview or of the particular aspects of the attendance record upon which that interview was based shall be admissible before the Grievance Settlement Board in the arbitration of a disciplinary grievance unless the employee was given reasonable notice of the interview and of the right to have Union representation at that interview, and the employee either had such Union representation or declined that representation in writing prior to the interview.
28The Employer also rejects the Union’s assertion that the grievors were subject to double-jeopardy in regard to these attendance meetings. It asserts that “double jeopardy” is where the same misconduct receives some discipline, then additional discipline is imposed. In the Employer’s view – no discipline took place – either under the ASP or the review for absenteeism patterns. The Employer cites to Re OPSEU (Giraudy et al.) and Ministry of Community Safety and Correctional Services, GSB No. 2004-3120 (Petryshen); Re Samuel Manu-Tech Inc. and United Steelworkers of America, Local 8782 (Moodie Grievance)[2004] O.L.A.A. No. 807 (Carrier); Re OPSEU (Sidney) and Ministry of Transportation, GSB No. 1855/90 (McCamus); Re OBLEU (Drury) and Liquor Control Board of Ontario, GSB No. 1707/84 (Roberts).
29The Employer further contends that the grievors successful exit from the ASP did not mean that the Employer could not review their absences to determine if a pattern existed. Exiting the ASP does not render an employee’s attendance record immune to further review.
30The Employer also argues that the methodology it used to identify patterns was both reasonable and fair. First, it notes that the same methodology was used for all employees, so no one group was singled out. It submits that the Employer did more than it had to – filtering employees through a number of thresholds – the 2007 attendance record, the 2008 attendance record, and reviewing any medical explanations for the absences, and only then reviewing for potential patterns. It further submits that requiring 5 or more instances before a “pattern” was identified was fair and reasonable. It submits that if the methodology used was as flawed as the Union claims, one would have expected far more than 14-16 employees (out of approximately 400) to have been identified as having potential patterns of absence. The Employer then met with the employees, providing them an opportunity to explain and provide information, again filtering out employees who, in the employer’s view, did not have to submit medical verification. In its view, based on the evidence it reviewed and the meetings with employees, it reasonably determined that there may be an abuse of sick leave, sufficient to require Mr. Landriault to submit medical notes for his absences for a limited period of time. He had been absent 29 times in 2007 and 26 times in 2008 (through the end of August); there had been no medical explanation for his absences; 17 absences had extended his time off, and 9 were in conjunction with overtime shifts. It submits that it had reasonable and probable grounds to require a medical note for his absences, citing Re Canada Post Corporation and C.U.P.W. (Sigaty Grievance)[1992] C.L.A.D. No. 16 (Joliffe); Re Labatt’s Ontario Breweries and Brewery Workers Union (1990), 1990 CanLII 12777 (ON LA), 11 L.A.C. (4th) 89 (Brandt); Re Ralph and Ministry of Correctional Services, GSB No. 364/80 (Gorsky); Re OPSEU (Jarvalt) and Ministry of Citizenship and Culture, GSB No. 178/83 (Swan); Re Leaside Community Gardens and C.U.P.E., Local 114 [1993] O.L.A.A. No. 708 (Abramsky).
31The Employer asserts that it did not apply a “blanket” or “universal” requirement for employees to submit medical documentation. Instead, it carefully reviewed the facts and exercised its discretion in determining whether there was a reasonable suspicion that there might be an abuse of sick leave. In its view, the Employer engaged in a thoughtful, meaningful and measured response to a legitimate attendance concern. It argues that it fully exercised its discretion; it did not abdicate it. In addition, the Employer notes that the letter does not automatically disallow sick pay if no medical certified is submitted. It again allowed for discretion to be exercised.
32In terms of Article 44.10, the Employer submits that it fully complied with its terms. It notes that by its terms there is no temporal limitation in the provision, and no express requirement that the Employer determine if it suspects potential abuse on the day of the absence. It contends that it may do so before the absence, the day of the absence or afterward. To accept the Union’s interpretation, the Employer submits, would in effect be adding a temporal limitation to Article 44.10 which does not exist, and which is expressly prohibited by Article 22.14.6 of the agreement.
33Further, the Employer submits that where there is are reasonable grounds to suspect abuse, employers have been permitted to request medical notes in advance - not just at the time of the absence. Indeed, it notes that providing employees notice of this requirement can be useful to the employee. It asserts that the same conclusion applies here. Re St. Joseph’s Health Care and CUPE, Local 1144 (1988), 1988 CanLII 9207 (ON LA), 34 L.A.C. (3d) 193 (Joyce); Sobey’s Inc. and U.F.C.W., Local 175 (Wight Grievance) [2003] O.L.A.A. No. 215 (Liang); Re Skeena Cellulose Inc. and Christian Labour Association of Canada [2001] B.C.C.A.A.A. No. 164 (Blasina).
Reasons for Decision
1. Was the Employer’s Review of Attendance Patterns Unreasonable?
34The evidence is undisputed that employee absenteeism, after the transfer of CNCC back to the Ministry, significantly increased even though the workforce remained largely the same. This fact led to a review of attendance records to determine if some of the absenteeism might be culpable.
35The case law clearly establishes that an employer has a legitimate interest in employee attendance. As stated by the Board in Re OPSEU (Union Grievance) and Ministry of Health, GSB No. 1527/91 (Finley) at p. 6: “The Board recognizes that the Employer does have a right to develop a policy for dealing with the problem caused by ongoing high levels of absenteeism…..” Further, as stated in Re NAV Canada and Canadian Air Traffic Control Association (2000), 2000 CanLII 50201 (CA LA), 86 L.A.C. (4th) 370, at par. 34: “[M]anagement has the right to know whether illness or something else is behind an employee’s absence.”
36The Union asserts, however, that the methodology used by the Ministry to conduct its review and assess patterns was fundamentally flawed because it failed to take into account that the employees work a compressed work week, leading to far more times that an absence could be found to be part of a pattern absence. It also faults the Employer’s reasoning concerning the proximity of an overtime shift to an absence, asserting that there is no basis to assert that it casts doubt on the legitimacy of the absence.
37It seems clear that a compressed work week would result in more occasions when an absence could fall into the pattern of extending time off between sets of shifts. But that fact, in my view, is countered by the five or more times parameter used to determine a pattern. That limitation, plus the prior filtering performed by the Employer (the 2007 and 2008 absence levels and screening for known medical issues), resulted in only 14-16 of approximately 400 employees demonstrating established potential patterns. This shows that there were sufficient safeguards built into the methodology to prevent the compressed work week issue from improperly skewing the results.
38In terms of weekends off, the number of weekend days remains the same whether or not an employee works a compressed work week. The compressed work week, therefore, has no bearing on that calculation. It is also reasonable, when looking at potential patterns of absence, to look at weekend work days.
39In terms of overtime combined with a sick day, again I find that the five plus criteria overcomes any issue with that. While it is true, as the Union asserts, there is no necessary correlation between a sick day followed by an overtime shift, when such a combination happens on a frequent basis, it can raise a legitimate question.
40Accordingly, I find no fundamental flaw in the methodology used by the Employer in this matter. It was not an unreasonable exercise of its management rights.
2. Are the attendance meetings and letters discipline?
41The GSB has determined that the employer “has the right to correct employees through guidance, counseling or even warning without engaging in disciplinary action.” Re OPSEU (Black) and Ministry of Revenue, GSB No. 885/90 (Dissanayake), cited in Re OPSEU (Halsall) and Ministry of Agriculture, Food and Rural Affairs, GSB No. 2008-1045 (Briggs) at par 33. In the Black case, a letter of counsel was issued in regard to an incident in which the grievor “refused to follow an instruction given to you by your manager…” The letter then reviewed the discussion that took place in a meeting to review what had occurred and noted that while accepting the grievor’s explanation, management “emphasized the seriousness of what you had done and that any future incident of this nature will be considered insubordination and appropriate disciplinary action taken…” When the grievor raised concerns about the letter, management responded that it was non-disciplinary and was intended to confirm what had been discussed. In testimony at the hearing, the grievor’s manager stated that he “wanted to ensure that the grievor understood what was expected of him in the future” and that the memo was “intended to confirm the discussion for the grievor’s guidance” and that “it was not intended to be disciplinary.” The GSB concluded that the memo was non-disciplinary and did not punish the grievor for his conduct. Instead, it “expressed concerns about his conduct” and “explained to him that he should not engage in similar conduct in the future.” (Re OPSEU (Black) at p.7). The fact that it warned him that any future incident would be considered insubordination subject to discipline did “not make the meeting or memorandum disciplinary in nature.” It was significant to the Board that the memo was not placed in the grievor’s personnel file and was stated to be non-disciplinary.
42In Re OPSEU (Halall), supra at par. 34 and 35, the Vice-Chair quoted two other GSB decisions concerning what constitutes “discipline.” In Re OPSEU (Barillari) and Ministry of Community and Social Services, GSB No. 2002-2390 (Dissanayake), the grievor was given two counseling letters which set out the Employer’s expectations concerning her behaviour and criticized certain events in which she was involved. The decision noted that the grievor was distressed with the information in the letters but that was not the test to be applied. It continued at par. 62:
Certainly, if the grievor repeats the conduct which was the subject of the letters, the employer may take disciplinary action, as union counsel suggests. In that event the employer will be obligated to establish just cause in the event the discipline is grieved. However, that does not have any relevance to whether the letters are themselves disciplinary. The employer is entitled to initially attempt to correct an employees conduct in a non-disciplinary way. As the Board observed in Re Black, that is to be encouraged. If the non-disciplinary approach does not produce the corrective results, it is open to the employer to initiate a disciplinary response. The non-disciplinary letters, etc. will not form a step in the progressive discipline system, but may well serve to establish that the grievor was made aware of the employer’s expectations of the employee should that be an issue.
In regard to the other cited decision, Re OPSEU (Cloutier) and Ministry of Revenue, GSB No. 108/77 (Swinton), Vice-Chair Briggs stated at par. 35:
It was said in Re Cloutier (supra) that when an employee is advised that they may be disciplined in the future, “it is implicit in such an admonition that such an appraisal is not being made at that time.” Further, it was said that “the employee is simply being forewarned that such an appraisal is a distinct possibility if certain conduct about which the employer complains is not rectified.”
43Similarly, in Re OPSEU (Russell Selkirk) and Ministry of Correctional Services, GSB No. 206/84 (Roberts), the Board considered a memo reflecting a “corrective interview” concerning attendance. The memo noted that the grievor had been absent on six separate occasions, five of which were in conjunction with the regular days off or on weekends. It noted that he was informed that poor attendance was detrimental to an employee’s record and disruptive to the institution. It also noted that “the failure to improve could result in further courses of action being taken.”
44The Board, at p. 4, quoted an excerpt from Brown and Beatty, Canadian Labour Arbitration (2nd). In part, that quote reads:
It follows from what arbitrators conceive to be the essence of disciplinary sanctions that a written warning which forms part of the grievor’s employment record, which is intended to induce her to alter her behaviour and which may have a prejudicial effect on her position in future grievance proceedings will likely be regarded as being disciplinary in nature. Conversely, where the written warning forms no part of the employee’s record for the purpose of determining the severity of future discipline, or where it does not involve a change in status or a monetary loss, or where the warning merely indicates what disciplinary or other action might be taken in the future, arbitrators have ruled that such notations are not disciplinary in nature….
Following this reasoning, the Board determined that “[i]n order to constitute discipline, a written warning must…be likely to have a prejudicial effect on the position of the grievor in future grievance proceedings.” Based on the facts there, the Board found that the attendance letter was non-disciplinary. It was not intended as discipline and did not form part of the grievor’s disciplinary record, nor would it be used in some future incident. There was no allegation of fault on the part of the grievor and, while there was some ambiguity to the letter, there was no allegation that the absences were not bona fide.
45The attendance meetings and letters received by the grievors are similar to the situations cited above. The meetings were to address concerns that the Employer had about the grievors’ attendance – that there appeared to be patterns to some of the absences. At neither the meetings nor in the letters was there an allegation that the absences were not bona fide, although as in Re OPSEU (Selkirk), supra at p. 6, “it was worded in such a way as possibly to raise an inference thereof.” But even so, the Employer, under the GSB case law, is permitted to “correct employees through guidance, counseling, or even warning without engaging in disciplinary action.” Re OPSEU (Black), supra.
46The attendance meetings, as stated by Superintendent Kasha, were to express the Employer’s concerns and clarify expectations about attendance. It was also an opportunity for the grievors to address the Employer’s concerns. It put the grievors on notice that the Employer would be reviewing attendance to determine if patterns existed, which the Employer has the right to do. Canada Post Corporation and C.U.P.W., supra. Although the meetings were upsetting to both grievors, particularly Ms. Mijatovic, they were not intended to punish; the intent was to inform and clarify expectations. Likewise, based on the GSB’s case law, the fact that the letter to Mr. Landriault advised him that a future culpable absence could lead to a loss of sick pay does not render the letter disciplinary. Re OPSEU (Black), supra.
47Neither the fact of the meetings nor the resulting letters were placed in the grievors’ personnel files. Further, the grievors were assured, verbally, that the process was non-disciplinary. It would have been better, as stated in Re OPSEU (Selkirk), supra, if the letters specifically stated that the review process was non-disciplinary. Under the circumstances – particularly the filing of the grievance – it is understandable that Superintendent Kasha did not amend the letter, as requested by the grievor. But, as in Selkirk, that omission does not render the letter disciplinary.
48The situation here is markedly different from the situation in Re Hilton Villa Care Centre and British Columbia Nurses’ Union (Denes Grievance), supra, cited by the Union. In that case, a letter sent to the employee concerning nursing practice issues, though labeled a “non-disciplinary letter of expectation” was determined to be “clearly accusatory” and involved “culpable misconduct.” It was, as found by the arbitrator at par. 29, “something more than the clarification of performance expectations; its purpose was also to correct misconduct at the workplace.” It would “undoubtedly have an adverse effect on the Grievor’s employment prospects.” (Par. 32). That is not the case here.
49Nor, in the case of Mr. Landriault, does the requirement that he produce a medical certificate for any absence for the next thirty days render the letter disciplinary. Whether or not the Employer had the right to do so under Article 44.10 will be addressed below, but the requirement itself does not constitute “discipline.” The requirement to produce a medical certificate is not a penalty to induce better behaviour; it is a mechanism to ensure that an absence is bona fide. The requirement to produce a medical certificate for future absences does not, in and of itself, have a prejudicial effect on the grievor in future grievance proceedings. His failure to provide a note, when required, may have a prejudicial effect, but that does not mean that the imposition of the requirement does.
50Finally, the fact that the grievors were permitted to bring a union representative to the attendance meeting does not make the meeting disciplinary. As Superintendent Kasha testified, the meeting could lead to potential discipline, and it was therefore both prudent and appropriate for the individual to have the assistance of a union representative. But again, the meeting itself, for the reasons set forth above, was not disciplinary.
3. Was there “double jeopardy” here, and did the Employer improperly combine culpable and non-culpable absences?
51The GSB has determined that the term “double jeopardy” “has been limited to circumstances in which management, having made a final determination of what discipline to impose, thereafter seeks to reverse itself and impose more severe discipline.” Re OBLEU (Drury) and Liquor Control Board of Ontario, GSB No. 1707/84 (Roberts), at p. 6. The Union, however, does not rely on this doctrine in a technical sense, but on the concept, asserting that the grievors having their attendance again reviewed and questioned, after they successfully exited the attendance management program based largely on the same absences, is a form of double-jeopardy.
52The ASP dealt solely with non-culpable or “innocent” absenteeism. As stated in Re OPSEU (Union Grievance) and Ministry of the Solicitor General and Correctional Services/Management Board Secretariat), supra at p. 4:
According to the Attendance Support Program Manual, the goal of the program is to “manage absenteeism in the Ontario Public Service by committing to employment accommodation and assistance for all employees who require it and providing a consistent OPS-wide approach.” It “focuses on innocent (or non-culpable) absenteeism” which is defined as “when an employee, through no fault of his or her own, is absent from the workplace because of injury or illness.” The manual states that “[t]his type of absence must be treated appropriately, as a non-disciplinary issue, recognizing that affected employees may require assistance to return them to regular duties.” Culpable absenteeism, or abuse of sick leave provisions, is defined as “deliberate misrepresentation or misuse of sick leave” and “is dealt with through the disciplinary process.”
53Thus, there are two types of absences – culpable and non-culpable. The existence of a program to address non-culpable absences does not mean that the Employer may not review an employee’s absences to determine if some of them may not be legitimate. The assumption, with innocent absenteeism, is that the absences are legitimate. The focus in culpable absenteeism is completely different, and with patterns, it is only in hindsight that one can detect if a pattern exists. Inclusion in the ASP, or exiting it, does not mean that the Employer may not review the employees’ absences to determine if there is a questionable pattern to them. As stated by employer counsel in closing argument, exiting the ASP program does not make an employee’s attendance immune from review.
54Both grievors, however, felt that it was unfair for the Employer to question their absences after they had successfully exited the ASP program. While that view is understandable, it is based on the view that the two types of absences are mutually exclusive. To a certain extent, that is correct, but not entirely. In an attendance program, the Employer may not “mix the two.” Re Scarborough Fire Fighters Association, Local 626 and City of Scarborough (Attendance Program Grievance)[1995] O. L.A.A. No. 9 (Mitchnick), at par. 15. Rather, the two have to be kept separate, but they may and do coexist.
55Then Arbitrator Whitaker in Re Communications, Energy & Paperworkers Union, Local 33-X and Hydro Agri Canada (Attendance Management Policy Grievance) (2001), 2001 CanLII 62136 (ON LA), 95 L.A.C. (4th) 99 (Whitaker), at par. 22, noted that the two types of policies may separately coexist:
Policies which deal with culpable sick time abuse and policies which deal with non-culpable attendance management should remain distinct and separate. Employees must clearly understand the distinctions between these two types of policies and should not be led to believe that discipline will follow as a result of absences which are beyond their control. At the same time, it is quite appropriate for employees to be advised that discipline will apply where there is culpable behaviour. Where it appears that the two are “blended” and the distinctions are blurred, clarity should be restored.
56In this case, the Employer did not blend the two. Instead, it did a separate staff-wide review of attendance to determine if any patterns were present. The grievors, however, appeared to have had some confusion about this, believing that exiting the ASP meant that their absences could not be further questioned. At the meetings, Superintendent Kasha spent time discussing the differences between culpable and non-culpable absenteeism. This, then, may well be an area that needs further clarification. Nevertheless, although the two types of absences cannot be combined into a single program, the Employer’s separate review of the grievors’ attendance for potential patterns was not improper and did not constitute a form of double-jeopardy.
4. Did the Employer violate Article 44.10 of the collective agreement?
57This issue – whether the Employer’s requirement that Mr. Landriault “provide a medical certificate for every absence” for a period of one month from the date of the meeting violated Article 44.10 – is the pivotal issue in this case, and the most difficult one. 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.
The second sentence of this provision, by its terms, does not include a temporal limitation. The question is whether the provision, as a whole, allows the employer to determine, in advance, that “there may be an abuse of sick leave” and thus require an employee to submit a medical certificate for a period of time as the Employer asserts, or whether the Employer must assess if it suspects abuse at the time of the absence as the Union asserts. There is case law to support each view, although the predominant view supports the Union’s interpretation.
58In Re International Union of Operating Engineers, Local 987 and Health Sciences Centre (2003), 2003 CanLII 89618 (MB LA), 114 L.A.C. (4th) 400 (Spivak), involved a Union policy grievance contesting the Attendance Management Program, which gave the employer the discretion to require a medical certificate for each absence after an employee had been absent six times. The parties’ also introduced evidence that one employee, due to his high rate of absenteeism, had been required by the employer to produce a medical certificate for any future absence due to illness until he achieved regular attendance. The arbitrator held at par. 68 that “discretion [to require a medical certificate] is not compatible with a blanket policy in advance unrelated to the individual circumstances of each absence that is imposed on some employees.” Nor was the policy saved by the fact that the employer could determine which employees who met the threshold had to produce medical certificates. The arbitrator concluded at par. 69:
While management may exercise a discretion as to which employees that meet the threshold will be required to produce medical certificates, those employees will have the automatic requirement to produce medical certificates in the future based on past conduct and not on the specifics of the future absences. Those employees will have to automatically produce medical certificates without any consideration of the actual circumstances of the absence giving rise to an individual employee’s claim for sick leave in the future.
In terms of the individual who was required to produce a medical note for future absences, the Board determined that he “would have the automatic obligation to provide a medical certificate for every absence in the future relating to illness, irrespective of the nature and duration of the illness, and even when there is no question about the legitimacy of his claim to have been incapacitated by illness.” That was not permissible, but the employer could request a note “on a case by case basis where there are reasonable grounds to doubt the truth of the employee’s claim that he was away because of illness…”
59The idea that discretion must be exercised on a case-by-case basis is supported by a number of the arbitration cases cited by the Union. E.g., Re City of Toronto and C.U.P.E., Local 79 (1984), 1984 CanLII 5227 (ON LA), 16 L.A.C. (3d) 384 (M. Picher);Re NAV Canada and Canadian Air Traffic Control Association (2000), 2000 CanLII 50201 (CA LA), 86 L.A.C. (4th) 370 (Brault); Manitoba and Manitoba Government Employees’ Union [2007] M.G.A.D. No. 40 (Jones); Re St. Joseph’s General Hospital Elliot Lake and Ontario Nurses’ Association (Osborne-May Grievance) (2008), 170 L.A.C. (4th) 115 (Sheehan).
60Some of these cases rely on a decision by Arbitrator Swan in Re Meadow Park Nursing Home and Service Employees International Union, Local 329 (1983), 1983 CanLII 4910 (ON LA), 9 L.A.C. (3d) 137 (Swan), in which the concept of “discretion” in relation to sick pay was discussed. In that decision, the board of arbitration cited to Mullan, Administrative Law (Carswell, 1973) for, among other things, the idea that “discretion should be exercised in relation to each individual matter coming before the decision-maker and should not be automatically determined or even fettered by reason of a rigid policy laid down in advance.” Guidelines or principles for future action were acceptable, “so long as he still considers the merits of each individual matter for decision in the light of those guidelines and principles and is prepared to admit of exceptions to the general policy in appropriate cases.” The board determined at p. 143:[W]e think that the exercise of the employer’s discretion must be in good faith, must be a genuine exercise of discretion and not merely the application of a rigid policy, and must include a consideration of the merits of each individual case….”
61The Employer contends, however, that it has fully exercised individual discretion – through its filtering review and individual meetings, and that it exercised discretion in determining that certain employees, such as Mr. Landriault, did not sufficiently address the employer’s concerns and that it, therefore, had a reasonable basis to suspect that there may be an abuse of sick leave so as to require the employee to submit a medical certificate for absences for the next thirty days. It submits that the employees’ past attendance record is a sufficient, objective basis to suspect that there may be abuse of sick leave.
62This was an approach accepted in Re St. Joseph’s Health Centre and Canadian Union of Public Employees, Local 1144 (1988), 1988 CanLII 9207 (ON LA), 34 L.A.C. (3d) 193 (Joyce). In that case, the Employer, due to an employee’s excessive absenteeism, required him to produce a medical note for every absence. The arbitrator concluded that it could do so, at pp. 202-203:
Given the grievor’s history of unacceptable attendance, the employer had reasonable grounds for concern over the legitimacy of the frequent absences from work. This being so, the employer had reasonable grounds to question, in depth, the reason for each absence. This being so, the employer acted properly in its decision that the grievor must produce a medical certificate in the case of each absence due to alleged illness until such time as his absenteeism reached an acceptable level.
In the arbitrator’s view, it was “fair and of abundant common sense for the grievor to be aware of this requirement in advance of each such absence.”
63Similarly, in Re Skeena Cellulose Inc. and Christian Labour Association of Canada, Local 44 [2001] B.C.C.A.A.A No. 164 (Blasina), the Company had observed the grievor in circumstances which led it to suspect that the grievor had been untruthful about his absences, and thereafter instructed him to bring a doctor’s note if he was absent on medical grounds in the future. The arbitrator noted, at par. 18, that “arbitrators have reacted unfavourably where medical certificates are required as a matter of general policy, and not in response to individual or particular circumstances” which was viewed “as an abdication of managerial discretion.” To the arbitrator, however, the Company did not adopt a blanket policy applicable to all employees – just with respect to the individual. He also determined that the Company could not make this an ongoing requirement into the future indefinitely, but concluded that “there may be circumstances where it would be appropriate to require a medical certificate to verify every asserted medical absence occurring within a defined period of time.” He continued: “For example, where an employee has demonstrated a pattern of excessive absenteeism, characterized by numerous short absences, and perhaps for varying reasons or perhaps exhibiting some connection to weekends, it would not be unreasonable for an employer to suspect some measure of culpable conduct.” To the same effect is Re Sobey’s Inc. and United Food & Commercial Workers International Union, Local 175 (Wight Grievance), supra.
64The parties do not dispute that discretion must be exercised in relation to the second sentence of Article 44.10. They differ in regard to when that discretion may be exercised – in advance for a period of time based on past conduct, or in relation to an actual absence. The Employer argues that to accept the Union’s interpretation imposes a temporal limitation not found in the language of the collective agreement. With respect, I cannot agree. It is, instead, a matter of interpretation of the provision. After careful consideration, I conclude that the discretion related to Article 44.10 must be exercised at the time of the absence – although it may be informed by the employee’s past absenteeism record and the existence of any patterns of absence.
65What this means is that the Employer may not decide, as it did with Mr. Landriault, that he must provide a medical note for any absence during the next thirty days. There may be times, as noted in Re International Union of Operating Engineers, Local 987, supra at par. 69, when there is “no question about the legitimacy of his claim to have been incapacitated by illness.” The Employer may, however, based on the employee’s past attendance record, request a medical note for an absence that involves the same pattern – or any other suspicious absence. The employee’s past record of attendance is clearly a relevant factor for the employer to consider in the exercise of its discretion under Article 44.10.
66In light of this determination, I find it unnecessary to consider the Union’s other contention concerning Article 44.10 – namely, that an instruction to provide a medical note for each absence violates the first sentence of that provision, and therefore violates the collective agreement.
67Finally, I note that no arguments were presented concerning Article 3 of the collective agreement or the Ontario Human Rights Code.
Conclusion:
For all of the reasons set forth above, I conclude as follows:
The methodology used by the Employer to determine attendance patterns was not unreasonable.
The attendance meetings and letters did not constitute “discipline.”
There was no “double jeopardy” involved in the Employer’s reviewing the same absences for potential patterns that had been involved in the grievors’ inclusion in and subsequent exit from the ASP.
The Employer violated Article 44.10 when it required Mr. Landriault, in advance, to submit a medical certificate for each absence for the next thirty days.
The November 14, 2008 letter to Mr. Landriault should be amended to delete any reference to such a requirement.
Dated at Toronto this 2nd day of September 2011.