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HomeMy WebLinkAbout1990-0976.MacIsaac.91-07-05n a BOARD COMMlSSlON DE SElTLEMENT RkGLEMENT DES GRIEFS 976/90 IN TEE NATTBR OF AN ARBITRATION under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before TEE GRIEVANCE BETTLBMBNT BOARD BETWBEN BEFORE: OPSEU (MacIsaac) - and - Grievor The Crown in Right of Ontario (Niagara Parks Commission) c Employer 3. Goldenberg Vice-Chairperson T. Browes-Bugden Member D. Montrose Member FOR THE A. Ryder 'GRIEVOR ~=xi--s Counsel ..~ . Ryder, Whitaker, Wright & Chapman Barristers & Solicitors HEARING S. Gleave Counsel Hicks, Morley, Hamilton, Stewart & StOrie Barristers & Solicitors ~-_' Nbvember'9, "1990 '~'~ ' February 1, 1991 DECISION On May 20, 1990, Terry Maclsaac (the grievor) reported for work at the Table Rock Complex, operated by the Niagara Parks Commission,, This is a facility adjacent to the Falls including a scenic tunnel and a retail gift shop and restaurant, which serves tourists seven days a week during the season. Ms. Maclsaac was employed as an office and cash control clerk, one of two permanent or regular staff in the office of the Complex. S@:haj been so employed for about five years, and had wor,ke,d pan-time for the Commrssion for six ‘years before. that.’ ‘. ‘~. .” ‘. This particular day, May 20, was a Sunday and the grievor’s shift was from 2:00 p.m. to 1O:OO p.m.. This was the. first Sunday which Ms. Maclsaac was required to work under a new schedule arranged by her supervisor, Ca,rol Brown. This fact is important and we shall return to it later, but the main point of the story lies elsewhere for now. Ms.’ Maclsaac’s work for the Commission had always included performing certain tasks with respect to the time cards of the employees in the Complex, whereby they were prepared for payroll at bi-weekly intervals. Payro1tha.d to have the cards by Monday morning and the pay period ended at midnight Saturclay. The cards were accordingly - 2 prepared for each two-week period on Saturday and Sunday. In order to have proper coverage for this task, one of the permanent staff in the office was present on each weekend day. The grievor had been working Saturdays, with Sunday and Monday off. The other permanent employee in the office, Eileen Pit&., had been working Sunday, with Friday and Saturday off. Between them, they had looked after the time cards. This involved a number of operations. First, the total hours worked each day by each employee were~entered in a column on the right hand side of the card, opposite the time punched in and out every day by that employee (referred to as “extending”). Then the total hours for each week were added up and entered into a time record appearing on the upper portion of the card, and overtime and shift premium hours were recorded. In addition, the bi-weekly total of hours worked was entered on the card. Throughout her five years of .permanent employment, the grievor had performed all of these functions with respect to the time cards, together with Ms. Pitts. She also checked the extensions and totals entered on the cards by others and identified errors’ for correction. Finally, each of the cards was certified correct by the signature of a supervisory person and they were forwarded to the payroll office. 1. The Incident On this particular day, Eileen Pitts had been working on the time cards for most of her day, which began at 730 a.m.. When Terry Maclsaac came in at 2:00 p.m., Eileen had not been able to complete the cards, so she took some and set them on Terry’s table. A little later, Ms. Maclsaac brought the cards. back, set them on Eileen’s desk and said “she didn’t do time cards.” Eileen, startled, simply repeated what she had heard: “You don’t do time cards?” Tina Collucci, a management trainee, was standing near Eileen’s desk at the time, and observed the foregoing exchange with concern. Word of the incident was carried to Carol Brown, Terry Maclsaac’s supervisor and a manager in the complex, who was downstairs on&&loor of the retail gift shop, ..” .- - ~. : .~,.’ -. -~. .~ ,~.~.... Carol Brown came upstairs to the office and asked the grievor what was going on. She stated that she had heard that the grievor wasn’t going to do time cards. Ms. Maclsaac stated that she was doing what her job specs said, namely, she was “checking the cards” (for mistakes in the extensions and totals done by others); When Ms. Brown asked specifically whether the grievor was not extending the cards, she replied that that was not in her job specs and if Ms. Brown wanted her to do that, she could change the job specs and pay her more money. _- 3 Ms. Brown asked the grievor again if she was not going to do the extensions, not going to total. ‘The reply, again, was that it was not in her job specs. Ms. Brown thereupon left the office and went to see Peter Adams, Coordinator of Retail Operations for the Niagara Parks Commission, and after discussing the matter with hirn, prepared a letter (Exhibit 8) informing the grievor that her behaviour was considered to be insubordination and that she was suspended “until further investigation of this matter”. Ms. Brown returned to the office with the letter. Before presenting it to the grievor, she asked her again if she was refusing to extend the cards and stated directly to the grievor: “I’m telling you to do the extensions”. Again, Ms. Maclsaac refused unless her job spec was changed and she was paid more money. At that point, Ms. Brown presented the grievor with the letter Exhibit 8, told her she wes suspended and Ms. Maclsaac left the premises. Before proceeding further, we note that there were two issues raised in the evidence with respect to the foregoing events. First, Ms. Maclsaac stated that she did not consider that she had been given a direct order to do the extensions and had refused such an order. Her testimony was that she had understood Ms. Brown to be inquiring as to whether she would do the extensions in the future and that she had been stating her position in that regard. Ms. Brown, on the other hand, clearly indicated that she considered that her direct order had been disobeyed. Yet upon a review of the evidence, it is apparent that there is really no conflict between these witnesses as to the words that were spoken. Ms. Brown’s own evidence is that she asked Ms. Maclsaac “if she was not going to do the extensions” and her language throughout was couched in that manner. That language is somewhat ambiguous, since it may equally denote a present demand and an inquiry about the future. In the first sense, the -question may refer.to work which needs doing immediately; in ths second sense, it will refer to work to be done in the future. Ms. Brown understood that there was work which needed doing, then and there, by Ms. Maclsaac and her intent was clearly to order that such work be done. The grievor, however, maintained that there was no such work to be done at that time. Her evidence was that Tina Collucci had finished extending the cards after the grievor had refused to do so, and, at Ms. Maclsaac’s request, handed her a batch to check over, which the grievor understood to be the last batch of cards. She stated categorically that there were no cards remaining to be extended. Nevertheless, bot,h Tina Collucci and Carol Brown swore that they had to Icomplete the work of extending - the cards that Sunday afternoon in the wake of the grievor’s refusal to do so; they both testified that there was a considerable number of cards remaining to be extended and that the work took them some two hours to complete. It is impossible to accept the grievor’s evidence on this point without a specific finding that Carol Brown and Tna Collucci lied about the work they had to do on the cards; we are not prepared to make such finding. Accordingly, in light of all the evidence bearing on this point, we find that there was significant work remaining to be done by way of extending the time cards that Sunday afternoon. We therefore find that Ms. Brown’s demand did amount to a direct order, to perform work remaining to be done that day. Nevertheless, the grievor has raised an interesting issue, contending that she did not M Ms. Brown to be making such a demand and believed that their conversations related to future performance. In our view, however, this defence is not well founded. Even if the conversations could reasonably be so construed by Ms. Maclsaac, she was clearly refusing to do work from that point on, which she had performed for some five years. Moreover, she had admittedly refused that afternoon to perform such work, bringing back a set of cards to Eileen Pit% and announcing that she no longer did such work in the presence of Ms. Pitts and Ms; Collucci. And, according to the grievor’s own evidence, when she first stated to Ms. Brown that she was unwilling to do any further extending, she understood, that there were cards remaining to be done, which Ms. Collucci was doing, because the grievor’s refusal had forced that task upon her. It was only during Ms. Brown’s absence (when she went to see Peter Adams) that the grievor received what she maintained was the final batch of cards from Ms. Collucci. Accordingly, she had clearly refused to do the extending on those cards, both by way of her announcement to Eileen Pitts and her first response to Carol Brown. Finally, when Carol Brown returned and clearly demanded that the work be done, we find that it was not reasonable for the grievor to construe such a demand, given its tone and-content, as relating to the next pay period some two weeks away. And the grievor’s inference that the last of the cards had been completed during Ms. Brown’s absence was unwarranted. Her evidence was that she had worked previous Sundays and based he&ference on personal knowledge of the volume of.work normally ~to be ~. ~ . . .-3,,, done on time cards that day and the time required. On cross-examination, however, she admitted she had worked only one previous Sunday, that it was not at the end of a pay period, and that her estimates were based on what she heard from “other Staff’. She also stated that she had ceased doing extensions during the previous two weeks, which would have added to the volume to be done that Sunday. At this point, there is one further matter to be considered. As mentioned above, the grievor had had Sundays off prior to May 20, 1990; the requirement that she work that day, which-,had been introduced by Ms.. Brown, was one that she strongly opposed. A good deal of evidence was given, which need not be reviewed in detail, concerning - 5 the numerous meetings which had been held between i:he grievor, Ms. Brown and othlsr management people between the fall of 1989, when the revised schedule was first introduced by Ms. Brown and the end of March, 1990. At one point:, the griev(Dr developed her own alternative proposal for a summer schedule, which she presented to Ms. Brown in January of 1990, but that proposal Was not accepted. Ms. Maclsaac was upset with the new schedule and its requirement: that she work Sundays during the summer; she was not prepared to give it a try, but maintained that it was wrong and in violation of Article 5.02 of the Collective Agreement between the Niagara Parks Commission and Local 217 of OPSEU. That Article provides that the Commission “agrees to make every effort consistent with operating requirements to schedule hours of work” during the weekdays from Monday through Friday, permitting employees to have the weekends off. In the result, Ms. Maclsaac filed a grievance with respect to the schedule, which was pending when the schedule took effect on the weekend of May 19 and 20, 1990. (That grievance was recently decided in Ms. Maclsaac’s favour; see Maclsaac, 0.577/90.) She had also asked to have May 20 off as a vacation day and management had denied that request. Ms. Brown thereupon formed the opinion thai: the grievor was determined not to work on Sunday and, if necessary, to provoke a suspension so that she would have the day off. At least she drew that conclusion when confronted with the grievor’s behaviour on May 20. The significance of this fact will shortly become apparent. 2. The Remonse The letter Exhibit 8, which was given to the grievor, stisted that Ms. Brown considered her refusal to extend the time cards to be insubordination and advised her that she was suspended “effective immediately . . . until further investigation of this matter”. Management thereupon deliberated with respect to thei appropriate penalty and settled upon a three day suspension. More precisely, the suspension was for the balance of the shift on Sunday and two further days. This was arrived at as a result of consultations.invoPng Peter Adams, Carol Brown, Debbie Whitehouse, the Director of Human Resources for the Niagara Parks Commission, Roy WOOdrQW, Director of Retail Operations for the Commission and Bob Mcllveen, Assistant to the General Manager. As a result of these consultations, a consensus was arrived at by management to suspend the grievor for three days. Both Ms. Brbwn and Mr. Adams testified .with respect to those deliberations and both candidly admitted that one of the considerations, taken into account by management was the reluctance of the grievor to work at all on that particular Sunday. Ms. Brown stated in her examination in chief that she thought the grievor “had the intention of pushing the time card issue so I’d have to suspend her and she’d have the day off”. In cross-examination, she admitted that although the suspension was over the time cards, the length of it was determined in part by the issue the grievor had raised over the schedule. &ls. Brown admitted that the length of the penalty was intended to “send a message to [the grievor] because she had opposed [that] scheduling”. She further admitted that she had assumed that the grievor wanted to be suspended in order to get that day off. Peter Adams, in his testimony, clearly stated that management accepted Ms. Maclsaac’s right to grieve the schedule, but confirmed that “we felt Terry did not want to work that Sunday - she figured she’d get the rest of the day off because of this fight”. Since she was trying to get out of the work on Sunday, a one day suspension would have given her just what she wanted. Accordingly, management determined that a three day suspension was appropriate for the insubordination and such penalty was accordingly decided upon and communicated to the grievor. 3. The Result The grievor’s job specification (Exhibit 3) does refer only to “checking time cards” and does not mention extending and totalling hours worked. The grievor may have had a legitimate concern in this regard. But she is clearly bound by the “work now, grieve later” rule and cannot possibly maintain that her concern justified her refusal to work. Although she maintained in her defence that she was simply raising this question for discussion with management, she chose to do so in an entirely unreasonable manner. Instead of asking for a meeting with Ms. Brown to discuss the matter, while continuing ’ to do the work, she simply stopped doing the objectionable work, and defiantJy announced that fact in the presence of her co-workers, precipitating Ms. Brown’s intervention in the worst possible circumstances. She admitted that her approach was needlessly confrontational; and that she was confronting, her supervisor with her unwillingness to do work she had previously done unless her job specification was changed. In the circumstances, and in light of our findings of fact above, we find that the grievor was insubordinate and that discipline was warranted. We are of the view, however, that management has been unable to substantiate its attribution to&.e+frievor of..a deliberate intention to provoke her suspension in order .~~ .::~.- to avoid working on that Sunday. The grievor expressly denied this in her evidence, pointing out that her Sunday afternoon was already interrupted by her coming in to work and maintaining that she considered it silly to get suspended. In the face of her clear denial, the inference drawn by management cannot be supported. There may be a connection between the grievor’s misconduct and the Sunday work requirement, even if not perhaps the one that her supervisor discerned. Given that the grievor was upset and angry about the Sunday work requirement, and considered it unreasonable and in violation., of the collective agreement, and given that she subsequently came to believe that the work on the time cards that was responsible for _- 7 the scheduling change was not in fact within her job description, her cumulative sense of grievance was probably considerable that day. She had taken the proper approach with respect to her scheduling concern, attending numerous meetings with management and preparing an alternative schedule, all in vain. It may be that, in light of all of that experience, her resentment got the better of her on that Sunday and her behaviour was accordingly unreasonable. We need not decide this matter. Suffice it to say that we are not satisfied that the conclusions of management about her motives were made out on the balance of the evidence and we cannot overlook the fact that it played some role in the decision as to the length of the appropriate suspension. Accordingly, we are of the view that the suspension should be reduced to two working days and we so order. DATED at Toronto, this 5th day of July , 1991. 2i+Qe+ &LA - - S. Goldenberg, Vice-Chairperson 7 " I Dissent" (dissent to follow) T. Browes-Bugden, Member