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HomeMy WebLinkAbout1987-1543.Gupta.88-08-05EMPLOYhDEL.4 COURONNE DE “ONTARIO CQMMISSION DE REGLEMENT DES GRIEFS Between: Before: For the Grievor: IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT P;OARD OPSEU (R. Gupta) Grievor and The Crown in Right of Ontario (Ministry of Correctional Services) .Employer M.V. Watters Vice Chairman H. O'Regan Member D. Wallace Member T. Hadwen Counsel Cavalluzzo, Hayes & Lennon Barristers and Solicitors For the Employer: G. Lee Staff Relations Officer Human Resources Management Ministry of Correctional Services Hearings: April 12, 1988 May 31, 1988 DECISION The threshold issue in this proceeding is the propriety of a five (5) day suspension imposed on the grievor, Mr. Raj Qpta, for events occurring on July 8, 1987. The grievor is a Probation and Parole Officer in the Islington Office of the Ministry of Correctional Services. He has worked in this field with this employer since April, 1965. His employment record from that date until the incident hereunder consideration has been exemplary. Indeed, the grievor has not previously been the subject of any disciplinary sanction. The events which led to the imposition of the suspension were recorded in a memorandum dated July 9, 1987 which was prepared by Mr. Allar Viinamae, acting Area Manager at the material time. While this document may highlight a slightly “more polished" account of the facts, we have not been persuaded that it is inaccurate in any significant respect. It reads, in part, as follows: "At 1:30 p.m. on 8 July/87, I had noted that insufficient information had been recorded by PPO/Gupta on the office travel itinerary/or sign out sheet. While I was aware that PPO/Gupta had requested PPO/Kim King to accompany him on a home visit related to a pre-parole report, they had not entered either time left or the expected time of return. Mr. King had noted 'with Raj out'. Mr. Gupta was in the immediate vicinity at this time. I requested more details about the home visit and further, asked that he record these details on the travel itinerary. His reply was: ‘You better be careful; who do you think you are; I don’t care about your tirne sheet . ..fuck you.' I believe that other staff persons heard his remarks. -2- 1 consulted with A.M./Colman who agreed that a letter of counsel would be appropriate. Mr. Kim King was requested to add to his travel itinerary entry, and he did so noting that their home visits were done between the hours of 9:30 a.m. and 12:30 p.m. He also confirmed that he had accompanied PPWQpta to his home for lunch immediately prior to returning to the office. At 4:20 p.m., I requested PPO/Qpta to come to my office. I closed the door and informed him that I would be issuing a letter of counsel regarding his foul language and his inappropriate use of the sign out sheet. He stated that he intends to swear any time he pleases and then said 'fuck you, fuck you, fuck you’ . . . . 'and you can shove that letter up your ass’ (while making rude gestures with his fingers). Then he stated 'Ive been a good employee for 22 years; you can't do anything to me - go and tell your good buddy John Main - I can have you out of here in two days - who do you think you are.’ I do not believe this conversation was overhead by anyone. It ended by my opening the office door and walking out. At no time did I raise my voice, aggress in return or use foul language." As Mr. Viinamae was serving as Area Manager in an acting capacity, he did not po&ess the authority to impose discipline. This task was therefore assumed by Ms. &dy Drybrough, a Regional Manager in the Metro Region of the Ministry. On the basis of Mr. Viinamae's description of the incident, the grievor was invited to attend a meeting with Ms. Drybrough on July 17, 1987 for purposes of reviewing the allegations and to give him an opportunity to respond to same before any disciplinary action was taken. The grievor attended at the Metro Regional Office on that date, but on the advice and direction of his union representative, Mr. A. Ayres, did not participate in the meeting. The position of this representative was that Mr. Gupta would not "appear unless ordered to do so”. As such orders were not forthcoming, the meeting was conducted in -3- the grievor’s absence. Mr. Ayres, after being provided with a more detailed version of the facts surrounding the incident, declined to make any further submissions with respect to the grievor’s involvement. Ms. Drybrough subsequently proceeded to impose the five (5) day suspension without pay. In so doing, she concluded that the grievor did conduct himself in an insubordinate manner towards his supervisor through the use of foul and abusive language accompanied by obscene gestures. It is apparent from the evidence of Ms. Drybrough that the discipline was given in respect of the verbal exchange which occurred at approximately 4:20 p.m. on July 8, 1987. She perceived this incident as “a flagrant act of insubordination" and as "a defiant challenge" to the Area Manager’s authority to give direction. Ms. Drybrough testified that she considered, and took into account, the fact that the grievor had not been previously disciplined. She determined, however, that in the circumstances a five (5) day suspension was necessary so as to bring the seriousness of the conduct to the grievor’s attention. In her estimation, a shorter suspension, or indeed a letter of warning, would not have met this objective given both the nature of the conduct and the fact that the grievor had treated his supervisor in a similar manner earlier on during the day in question. It was her further assessment that the grievor did "not appear to feel any remorse” for his actions. She premised such belief on his non-involvement in the meeting of July 17, 1987. At the hearing, the grievor testified that he regretted the incidents and that he considered them to be "out of character”. With respect to . -4- the earlier occurrence, he categorized his response as arising from an attack on his "credibility and integrity”. It-was his perception that Mr. Viinamae's comments concerning the non-completion of the travel itinerary was suggestive~ of the possibility that he had been "stealing government time" and that he had not been engaged in legitimate Ministry business on the morning of July 8th. The grievor conceded that he did not fully complete the itinerary and admitted to the use of obscene language when confronted with same. He denied, however, that he was directed by his supervisor to complete the entry relating to his mornings efforts outside of the office. After considering the evidence of these two (2) gentlemen, together with that of Ms. M. Killingbeck and Ms. L. Demetriou, two other office staff who saw and overheard much of the encounter, we conclude that Mr. Viinamae did request the grievor to complete the travel itinerary and that such request was met with the inappropriate language noted above. It is also clear to us from the testimony presented that the grievor was acting on Ministry-related work on the morning of 3~1~ 8th. While he provided several reasons for his non-completion of the itinerary, we are prepared to accept that on this occasion such omission was simply a productof "innocent oversight”. With respect to the later exchange between himself and Mr. Viinamae, the grievor admitted to gesturing with a piece of paper. While he did not immediately recollect using "filthy language", he subsequently conceded in his evidence that he was in an emotional state and "might" have made the gestures and statements attributed to him. Nonetheless, the grievor denied that the obscene language was directed at Mr. -5- Viinamae. Rather, he stated that it simply reflected a frustration with "the system" which had served to discriminate against him over the course of a number of years. In retrospect, the grievor recognized that, at the time of the second incident, he did not have sufficient,control over his emotions. He explained that his overreaction was partly motivated by a belief that he was not being accorded an ample opportunity to resolve the difficulties stemming from the earlier exchange with Mr..Viinamae. Mr. Cupta was of the view that the letter of counsel was premature and that the matter should have been handled in a more informal manner. At the outset, we state our conclusion that the five (5) day suspension should be reduced to a one (1) day suspension without pay. In this regard, we are cognizant of, and agree with, those awards which have cautioned against the "fine-tuning" of disciplinary sanctions. In deciding whether to exercise the discretion provided to us in'section lP(3) of the Crown Employees Collective Bargaining Act, R.S.G. 1980, chapter 108, as amended, we would concur with the statement found in Gillies, G.S.B. 129/77 to the following effect: “It is our view that the Board should not attempt to substitute its judgment for that of the employer. Rather we should ask whether the employer’s response falls within the range of reasonable disciplinary responses in all the circumstances and, if so, to respect that decision even if the Board might have imposed a somewhat different penalty if faced with the decision at first instance. This standard should give the Board sufficient discretion to ensure that the collective agreement is enforced in a fair and consistent manner without encouraging grievances where only marginal.variances in the penalty are sought. In our view, the Board’s function should be to ensure fairness of treatment of individual employees and respect for the collective agreement but to do so without putting itself entirely in the place of management" (page 12) -6- In this instance, we do not consider the five (5) day suspension to fall within "the range of reasonable disciplinary responses in all the circumstances”. It is our assessment that such a sanction does not give the appropriate and dese~rved emphasis to the grievor’s past employment record. Simply put, we see the suspension imposed as being unduly harsh for a first offence. We are not prepared however to interfere with the employer's judgment that a suspension was required on the facts of this case. The Board finds the type of conduct exhibited to be of a serious nature. The insolent and obscene language which was directed at Mr. Viinamae was unprovoked and. constituted a dramatic and excessive over-reaction on the part of the grievor. Such conduct demonstrated a significant lack of respect for Mr. Viinamae both personally and, more importantly, in his capacity as a supervisor. It is clear to us that the latter outburst wasnot the product of a momentary flare-up. Rather, it seems to reflect an emerging pattern of conduct that had firsts surfaced some three (3) hours earlier. The nature and content of the grievor’s comments, together with the manner in which they.were communicated, leads us to conclude that discipline was warranted for what we perceive to be a resistance to, or challenge of, the employer's authority. While recognizing and subscribing to the concept of progressive discipline, we think that the employer, acting through Ms. Drybrough, could properly and reasonably determine that a period of suspension was the most appropriate sanction. We cannot in the circumstances find fault with her judgment that a written warning would be an insufficient inducement to the grievor to correct his behaviour at the work place. In summary, we have -7- concluded that a one (1) day suspension without pay would be a "just and reasonable" method of conveying to Mr. QJpta the unacceptable nature of the conduct engaged in on July 8, 1987. For all of the above reasons the grievance is allowed in part. We will retain jurisdiction for purposes of resolving any differences that might arise in the implementation of this award. Dated at Windsor, Ontario this ::-sth- day of August 1988. M. V. Watters - Vice Chairman H. 'O'Regan - Membk 0. Wallace - Member