HomeMy WebLinkAbout1987-1101.Drew et al.88-08-08tMP‘O”ES DE LA COURONNE
DE L’ONT.4RIO
CQMMISSION DE
REGLEMENT
DES GRIEFS
IN THE MATTER OF AN ARBITRATION
Under
TNE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT
Before
THE GRIEVANCE SETTLEMENT BOARD
Between :
OPSEU (Drew et al)
/
and
The Crown in Right of Ontario
(Ministry of Correctional Services)
Before: A. Barrett Vice-Chairman
J. McManus Member
D.C. Montrose Member
For the Grievers: R. Nelson
COUllSt!l
Gowling and Henderson
Barristers and Solicitors --
For the Employer: G. Lee
Senior Staff Relations Officer
Staff Relations Branch
Ministry of Correctional Services
Hearing: ElaI-ch 23, 1488
Grievers
Employer
These six grievances all concern letters written by the
employer to the employees regarding the employees' abo-e-average
absentee rate. The employer says that the letters are not
disciplinary in nature and therefore this Board lacks jurisdiction
under s. 18(Z) of the Crown Employees Collective Bargaining Act
to arbitrate the dispute.
The Union characterises the letters as being disciplinary
and asserts that we have jurisdiction.
This preliminary issue has been dealt with many times in
the past by differently constituted panels of this Board, and the
jurisprudence appears to be settled. [GSB 111/82 (O'Keeffe);
GSB 206/84 (Selkirk); GSB 1998/86 (Sundberg); GSB 1635/87 (Walls);
GSB 20/76 (Cloutier); GSB 108/77 (Naik); GSB 94/78 (Haladay)].
The letters at issue in this grievance are not identical
but they are similar enough to each other that the one reproduced
below is representative of all:
"April 6, 1987
Mr. S. Drew
Correctional Officer 2
Maplehurst Complex
Dear Mr. Drew:
Re: ATTENDANCE REVIEW JAN.,.g1/86 to DEC. 31186
On Thursday, March 26, 1987 I met with you in the
presence of Mr. F. Rabley, for approximately thirty (30)
minutes to discuss your use of sick credits during the
above-mentioned time period, which totalled sixteen
and one-half (164) days on nine 19) occasions. The
following is a list of the absences: i
1986 - Jan 16, 17
Mar 7, 29 - in conjunction with R.D.O.
Apr 21 - in conjunction with R.D.O.
May 11 - in conjunction with R.D.O.
June 5
June 21, 22
June 23 - + day in conjunction with R.D.O.
JUlV 30. 31
No”-1, i
NOV 13, 14 - in conjunction with R.D.O.
Verbal Counsel January 24, 1986
During our interview I explained to you that I was not
questioning the legitimacy of the credits used but
rather pointing out that these absences exceed the
institution average and that while it was your
responsibility to keep yourself fit for work, it is
management's obligation to monitor your health and
assist where possible. I also explained to you that
your not being available for work can create additional
operational difficulties and an increased workload for
many institutional staff, notwithstanding the cost factor.
During the interview ypu expressed your point of view and outlined your concerns;. I informed you that you were most
welcome to submit a written summary regarding the above
and that upon receipt of your summary it would be placed
with this letter on your file. YOU also submitted a
letter dated July 1, 1986 from Jon C. Shearer, M.A.
which will be placed on your file at your request.
Also during the interview you stated that your absences
were due to legitimate illnesses. You also expressed that
you felt that having to work with inmates having colds,
etc., second hand smoke in the work area and the shift
schedule worked were contributing factors to your
illnesses.
I am available to assist you should further clarification
be required. In closing, I would like to note that lack
of future improvement will necc*ssitate the careful reassess-
ment of your ability to meet the requirements of your
position.
Sincerely,
E.R. Bartlett
O.M. 15
Unit 2 Supervisor
cc: Personnel file
Superintendent/Attendance Review Committee ** I have received the original of this letter
Signature: Date:
c.o.2
t
A very similar letter was consic?red in the GSB Selkirk
case cited above. The Board reviewed the jurisprudence and based
upon the following factors found that the letter was non-disciplinary
in nature. Distinguishing factors were:
1. The Ministry stressed that the letter was not intended
as discipline and did not form any part of the grievor's
disciplinary record. The Board was assured that in assessing
discipline against the grievor in some future incident no
reference would be made to this letter.
2. In the text of the letter there ijas no reference to
any reprimand or discipline.
3. There was no allegation of fault on the part of the
grievor and no allegation that,the absences of the grievor were
not bona fide.
4. The letter could not have any prejudicial effect
on the position of the grievor in future grievance proceedings.
The letters in the instant case meet all of the tests
set out above to be non-disciplinary commiinications between
employer and employee regarding work performance,and have the
additional safeguard for the employee that each was invited to ..*
submit any written response or objections he might choose and
was guaranteed that his written objections would be attached
to the letter in his file.
As has bee.-. stated in so many earlier BoL.rd decisions,
the employer is nc: only entitled to make written or oral
communications to ez?loyees regarding their work F'rformance,
it is obligated tc do so where further or progressive action
is contemplated if t:7e performance does not improx-e. Once the
employer contemplates terminating an employee for innocent
absenteeism it is obligated to advise the employee of the
unacceptability of t:7e absentee record and the fact that
adirerse results cc~ld occur if the absentee record does not
improve.
We do not find these letters to be disciplinary in
nature and accordingly the grievances are inarbitrable. The
preliminary objection is upheld and the grievances are
dismissed.
DATED at Toronto this 8th day ofAugust,lg&E.
I
D. MONTROSE
Member