HomeMy WebLinkAboutTrapani 06-03-26
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In the Matter of an Arbitration I ~ '~r¡-'7f;;¡llíED
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I 042006
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Between -~ t UtrfjRìfll£
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Hamilton Community Care Access Centre
(Hereinafter referred to as Ç(the Employer")
And
Ontario Public Service Employees' Union..:... Local 274
(Hereinafter refeITed to as "the Union")
Regarding: Grievance of Cathy Trapani
Sole Arbitrator: Felicity D. Briggs
For the Union: Mitch Bevan, Grievance Officer
For the Employer: John E. Brooks, Counsel
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On March 17, 2005, Ms. Cathy Trapani, an Accounting Clerk, filed a
grievance that stated:
I grieve a violation of Articles 4, 10 and 17 of the Collective
Agreement and any other policies, articles or legislation that maY'
apply when I was subjected to disciplinary measures for taking my
pre-authorized vacation as scheduled.
By way of remedy the grievor requested the removal of the letter and any
other sanction.
Tills grievance was filed shortly after the grievor received the following
memorandum which was dated March 2, 2005:
As per our discussion yesterday, which included Anna Dipietro and
Karen Alexander, I have given consideration to your vacation request.
In light of the fact that you have already booked your flight for the trip
that covers the work days March 7 to 11, I will approve your request.
This decision does not come easily for me. I acknowledge that you do
have a form that shows approval for those days, yet I also
acknowledge that Karen Alexander changed those dates verbally with
you once we decided to move to the Quadrant system and not go with
the ORMED upgraded system. I also aclmowledge, based on that
verbal discussion, that I approved with Human Resources a couple of
days to your vacation to be carried over to the fiscal year over and
above the allowed 5 days:> due to the demands on your time with the
implementation of the new system.
Cathy, this confusion and resulting vacation time is disappointing.
You are a very valued member of a team that is in the middle of a
huge transition. We rely and depend on your expertise to get things
done for the project, fOf your team., and for the company. YOUf choice
to book a vacation during the height of the implementation is
concerning and has led to additional stress being placed on your team
members.
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This note will remain in Karen Alexander's supervisor file by my
request.
On March 28) 2005 a Step 1 meeting to discuss the grievance was held. The
Employer's response after that meeting was as follows:
On March 31, 2005 a Step 2 grievance meeting took place and was
attended by Cathy Trapani, Karen Alexander, you and me. The
grievance reads as follows:
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The facts leading up to the grievance were reviewed and I confinned
that no disciplinary measures were taken nor intended against Cathy
in this matter. As such, we do not agree that a violation of the
Collective Agreement or any other policy or legislation has occurred,
as alleged. The grievance is therefore denied.
At the hearing the Employer took the position that the grievance is
inarbitrable and must be dismissed. The parties agreed to proceed with this
preliminary objection only. To that end, counsel for the parties set out the
facts necessary to hear this motion. While there were some discrepancies in
those asserted facts, none of the differences were relevant for the pUtposes of
the arbitrability determination.
In accordance with the vacation request practice and the provisions of the
collective agreement, the grievor requested her vacation for March 7th to
11 th, 2005 on July 30th, 2004. That request was approved on August 5) 2004~
by Ms. Alexander~ Manager of Accounting, shortly after the request was
submitted.
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During the summer of 2004 the Employer planned on upgrading its payroll
system, an exercise which was expected to be complete by the end of the
year. In spite of those intentions, in November the Employer was notified
that it was to move to a Ministry mandated payroll system called Quadrant.
The system had to be installed, configured, fully tested and operational by
the first pay period of the 2005/06 fiscal year. From the Employer's point of
view, this meant that a "significant amount of work" would be needed
beginning in January of 2005, with the "real crunch" oCCWTing in March.
In early January of 2005 Ms. Alexander spoke with the grievor about her
vacation. According to the Employer, Ms. Trapani was asked if she had
actually booked a trip for her vacation period. She was told that because of
the system changes it would better if she took her vacation at a different
time. At that time the grievor had nine unused vacation days and therefore
there was discussion about what would happen to those extra days given the
collective agreement stipulation that "no accumulation in excess of five
days" can be canied over. The grievor was infonned by Ms. Alexander on
January loth, that subject to approval she could carry over 2 or the 4
additional vacation days. Therefore, she needed to take two days of vacation.
The necessary authorized for the carry over was given on January 21, 2004
and the grievor was so advised during this time.
At the beginning of March of 2005, Ms. Alexander asked the grievor which
two days she was taking for vacation and during that conversation Ms.
Trapani said that she was taking vacation from March 7th to 11 tho She had
booked a trip and she was going to take her vacation as originally approved.
According to the Employer, notwithstanding its view that the grievor had
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agreed she would not take those five days of vacation~ it "grudgingly"
approved the grievor's vacation because she has already purchased tickets.
The Union did not take issue with many of these facts. However, it would be
the grievor's evidence that at no point did she agree to cancel her originally
approved vacation. In response to a question in January of 2005 Ms. Trapani
told Ms. Alexander that she had not yet booked her tickets because she was
waiting for a ,Çlast minute" deal. There was discussion about the possibility
of changing her plans and carry over of unused vacation days but nothing
was agreed upon. The grievor's testimony would be that when she was told
that she could only carry over two days she asked the Employer to again
consider allowing her to cany over the whole week. When there was no .
reply to that request she booked her holiday in accordance with her approved
vacation request.
. There are two Accounting Clerks in the Accounting and Finance
Department. Since approximately 2002 they generally rotate every three
months between the accOlmts payable function and the payroll function.
According to the Employer because of the timing of the grievor's absence it
was determined that the other Accounting Clerk should complete particular
testing and as a result the usual rotation was not strictly followed. It has been
the grievor's view from the outset that this alteration in the task assignment
was "punishmenf' for taking her vacation. The Employer's position has been
that those changes were not punitive but based on bone fide operational
considerations.
The relevant provisions of the collective agreement are as follows:
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Article 4 - Management Rights
4.01 The Union recognizes that the management, supeIVision and
division of the management, supervision and direction of the
workplace is fixed exclusively with the Employer and shall remain
solely with the Employer and shall remain solely with the Employer
except as specifically limited in this Agreement. Without restricting
the generality of the foregoing, the Union acknowledges that it is the
exclusive function of the Employer to:
(a) Maintain order, discipline and efficiency, establish and
enforce reasonable rules, regulations, policies and practices to
be observed by Employees provided that they are not
inconsistent with the provisions of this Agreement.
(b) Hire, retire, classify, direct, transfer, promote, demote,
assign Employees to tasks, layoff, discipline, or discharge
Employees, provided that a claim of improper classification, or
layoff, discipline or discharge without just cause may be subject
of a grievance to be dealt with as herein provided.
( c) Determine in the interest of efficient operations and the
highest standards of service, classifications, hours of work,
assignments, methods of doing work, job content, scope of
services to be provided and the working establishment for any
service.
(d) Generally to manage and operate the establishment in
accordance with its obligations and~ without restricting the
generality of the foregoing to determine the kinds and locations
of machines, equipment to be used, services to be provided, the
allocation and number of Employees required from time to
time, the standards of perfonnance for all Employees and all
other matters concerning the Employer's operations not
otherwise specifically dealt with elsewhere in this Agreement.
Article 9 - Grievance Procedure
9.01 For the purposes of this Agreement, a grievance is defined as a
difference arising between the parties relating to the interpretation,
application, administration or alleged violation of this Agreement
including any question as to whether a matter is arbitrable.
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9.05 The decision of the Arbitrator shall be final and binding upon
both parties and the Employee or Employees affected. The Arbitrator
shall not have jurisdiction to amend or add to any of the provisions of
this Agreement or to substitute any new provisions in lieu thereof nor
to give any decision inconsistent with the terms and provisions of this
Agreement nor to deal with any matter not covered by this
Agreement. No matter shall be dealt with at arbitration which has not
been properly canied through all the previous steps of the grievance
procedure.
Article 10 - Discharge and Suspension
10.01 The Employer shall not discharge or suspend without just cause,
any Employee who has completed their probationary period. In the
event an Employee who has completed his or her probationary period
grieves a discharge or suspension, such grievance may be submitted at
Step 2 of the grievance procedure within five (5) calendar days.
. If an employee is suspended, discharged or otherwise disciplined or
sanctioned, a copy of the letter of suspension, discharge or discipline
or sanction shall be forwarded to the Local President, at the same time
it is forwarded to the Employee.
10.02 Any letter of reprimand, suspension or other sanction will be
removed from the record of an Employee twenty-four (24) months
following the receipt of such letter~ suspension or other sanction
provided that such Employees ~ record has been discipline free for the
past twelve (12) months.
Article 17 - Vacation Time and Pay
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17.06 It is understood that the vacation year is the Employer's fiscal
year and this means that Employees will be given their vacation
entitlement as at the beginning of the Employer's fiscal year or from
their date of hire. Vacation days taken will be deducted from their
vacation bank.
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17.08 All Vacation credits earned should normally be taken as
vacation and not accumulate from vacation year to vacation year. No
accumulation in excess of five (5) days per year will be allowed to be
carried forward, and any days in excess offive (5) will not be paid out
and will be lost by the employee.
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17.10 There shall be two (2) vacation scheduling periods by Team:
April 1 to September 30 and October 1 to March 31. Requests for
vacations in April to September period shall be submitted in writing to
the Supervisor by February 1 and will be approved by March 1.
Request for vacations in the October to March period shall be
submitted in writing to the Supervisor by August 1 and will be
approved by September 1. In the case of conflicting requests for
vacation, seniority shall govern, unless the parties agree otherwise in
writing. An Employee may be limited to a maximum of two (2)
consecutive weeks vacation in July or August.
There was no dispute between the parties that the Employer has been
consistent from the outset that the March 2, 2005 Memorandum. at issue in
this matter is non-disciplinary.
EMPLOYER SUBMISSIONS
Mr. Brooks, for the Employer¡o submitted that the Employer has been very
clear since the initial filing of the instant grievance that the March 2, 2005
Memorandum is not discipline. A review of the document reveals none of
the conditions precedent for a finding of discipline. Further, the Employer
has the right to communicate with employees in a non disciplinary fashion
and can keep a record of that communication in a supervisory file if it elects
to do so.
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It - was asserted by the Employer that the jurisprudence regarding the
definition of discipline is long established éUld supports its view in this
matter. In Re Kimberly-Clark of Canada Ltd. And International
Chemical Workers, Local 813 (1972\ 1 L.A.C. (2d) 44 (Lysyk), a warning
card was at issue, The Employer in that case took challenged the arbitrability
of the grievance and asked the Board to consider whether the
communication at issue was a t'warning". In its deliberations the Board
stated, at page 46:
To the extent that any "warning" is disciplinary, of course, the
sanction inflicted upon the employee so disciplined is not immediate,
but potential. The employee concerned will have in mind that if a
disciplinary warning is not made the subject of a successful grievance,
the warning will go to "build a record" that may be used against him
at a later time should he subsequently be dismissed or suspended or
subjected to some other form of discipline. A warning can fairly be
characterized as a disciplinary warning, that is to say, when it may
have a prejudicial effect upon the employees' position in future
grievance grievance proceedings to contest a dismissal or suspension
or other disciplinary action.
On the other hand, company personnel records might well include a
memorandum of some sort containing unflattering remarks about an
employee, but which could not be viewed as a disciplinary warning in
the sense of laying the basis for. or supporting, other disciplinary
measures at a later date - either because of the natW'e of the
document, or because the ttwarning" was not brought to the attention
of the employee in such a way as to afford him the opportunity of
challenging it through the grievance procedure, or because it is clear
for some other reasons that the employee would not be prejudiced in
any future proceedings by having failed to grieve the t'warning"
immediately following its issuance.
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On the basic issue. however - that is, whether or not the card of
January 7, 1972, can be taken to constitute a disciplinary measure -
we are not confined to the face of the document. As suggested above,
in our view the critical feature distinguishing a warning which can
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properly be characterized as disciplinary from other (non-grievable)
expressions of employer disapproval is that in the case of the former
an employee who fails to bring a grievance may be prejudiced in
future proceedings of a disciplinary nature. In the case at hand, as we
understand ít, the company has clearly taken the position that the card
of January 7, 1972, was not intended to be disciplinary in this sense of
establishing a basis for further action. By so characterizing the card,
and unequivocally representing it as. a non-disciplinary
communication, we are of the opinion that the company would be
estopped trom subsequently tendering it in any future proceedings of a
disciplinary nature that might be taken against the grievor.
In sum, therefore~ the characterization given to the card of January 7,
1972, by the company assists us to the conclusion that the "warning"
was not in fact intended to be disciplinary in nature, and the grievance
is accordingly dismissed. It should be of some comfort to the grievor
that this award, by recording the company's position, should ensure
that he is not prejudiced by the warning card in any future
proceedings.
Mr. Brooks said that the Employer's view regarding the appropriate
characterization of the Memorandum has been clearly articulated from the
outset. This is evident from the actual wording of the Memorandum and in
coiTespondence since the filing of the grievance. Further, the March 2, 2005
Memo to Ms. Trapani was never intended to be discipline. The Employer is
entitled to write letters that express concern. To do so does not, in and of
itself, automatically mean that the communication constitutes discipline.
The Employer also relied upon Re The Queen in Right of Newfoundland
(Newfoundland Farm Products Corp.) and Newfoundland Association
of Public Employees (1986), 27 LA.C. (3d) 284 (Easton); Re Denison
Mines Ltd. And United Steeworkers (1983), 12 L.A.C. (3d) 364 (Adams);
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and Re City of Cornerbrook and Canadian Union of Public Employees,
Local 706 (1986), 27 L.A.C. (3d) 439 (Roberts).
UNION SUBMISSIONS
Mr. Bevan, fOT the Unio~ reviewed the facts from the grievor's point of
view. He said that, in accordance with the collective agreement, Ms. Trapani
requested her vacation far in advance of the dates. It was approved.
Notwithstanding the fact that the Employer knew in November of the
workload demands that it would be facing during March, it waited until
January to discuss the matter with the grievor. The grievor did participate in
discussions about changing her vacation and she might have agreed to
change those plans if alternate an-angements were to her satisfaction.
However, when there was not response to her inquiry about carrying over
the full period of vacation days in excess of five into the next fiscal year, she
booked her holiday in accordance with her already approved plans. She
complied with the terms of the collective agreement and yet the Employer
"grudgingly" granted her vacation and expressed "disappointment". Given
that background, the March 2, 2005 Memorandum cannot be permitted to
remain on any file.
The Union suggested that when the Employer asked the grievor to agree to
catTy over a number of vacation days in excess of what is provided for in the
Article 17.08, she was being asked to violate the collective agreement. The
Employer's failure to ask the Union to agree to this arrangement further
complicates that matter. The Employer cannot be allowed to discipline the
grievor for not agreeing to breach the collective agreement. Moreover, her
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failure to comply with the untenable position she was put in by the Employer
cannot be the cause of sanction. This circumstance, in and of itself should be
sufficient to compel this Board to order the Employer to remove the letter
from any and all files.
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Mr. Bevan also contended that if there had been some legitimate business
reason for the Employer to rescind its approval of Ms. Trapani's vacation it
could have done that. It did not. Indeed, the grievor's vacation request was
twice approved. Having agreed to her request a second time it is most
inappropriate for the Employer to then suggest it was "disappointed" in her
taking her earned time off.
The Union asserted that the grievor has already been prejudiced by the letter
because this incident has been referred to in her recent performance
appraisal. Whîlè that fact might more properly be argued before a Board of
Arbitration constituted to hear and determine whether that job appraisal was
disciplinary, it illustrates the prejudice that recorded communications such
as this can cause. Indeed, there can be no other reason to keep such a memo
on a file other than to cause some prejudice to the grievor. The Union noted
that if this Board does not find the letter to be discipline then it is not subject
to the "sunset" provision found at Article 10.02. Therefore, there would be
nothing to prohìbit the Employer from keeping this memo on the grievor's
file for decades. Again, this seems partícularly unfair given the facts that
gave rise to this grievance.
In the alternative, it was the Union"s view that Article 4.01(c) mandates the
Employer to administer this collective agreement reasonably. There can be
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no doubt that, in the facts at hand, the Employer has failed in that regard.
This provides the jurisdiction necessary to order the letter to be removed.
The Union relied upon Re The Crown in Right of Ontario (Ministry ()f
Health) and Ontario Public Service Employees Union (Kennedy) (July
16th, 1996), unreported (Briggs); Re Toronto East General & Orthopaedic
Hospital Ioc. and Association of Allied Health Professionals Ontario
(1989), 8 LA.C. (4th) 391 (Springate); Re Hilton Villa Care Centre and
British Columbia Nurses' Union (2003), 115 L.A.C. (4th) 154 (Gordon);
and Re Children's Hospital of Eastern Ontario & Ontario Nurses~
Association (1987), 30 L.A.C. (3d) 238 (Adell).
In reply Mr. Brooks noted that there may well be factual disputes if this
matter were to proceed on the merits. However, none of those differences
matter for the purposes of the determination of this preliminary motion. It
.. was suggested that the Union's characterization of the facts was somewhat
exaggerated and it certainly cannot be said that the Employer disciplined the
grievor because she refused to violate the collective agreement. Neither the
letter on its face, nor the Employer7 s clearly and oft stated intentions will
lead this Board to conclude that the Memo of March 2, 2005 was discipline.
Accordingly~ the grievance should be dismissed.
DECISION
There was no dispute between the parties that matter at hand arises iTom a
unique set of circumstances arising from a major software change within the
department. That change caused extraordinary work involving installing.
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inputting data, testing and ensuring the new system was fully operational.
Unfortunately, neither party appears to have taken solace from knowing that
there will be no repetition of the facts at hand.
It is' useful to consider how Boards of Arbitration have, in the past, dealt
with the issue of whether certain communication is properly characterized as
discipline. In Re The Crown in Right of Ontario (Ministry of Health),
(supra), a cited decision of the Grievance Settlement Board discusses this
issue at page 5:
While the expressions of view are somewhat disparate, the best view
seems to be as follows:
A. The character of a communication cannot be judged simply
by the title ìt is given by the Employer. The critical
consideration is the substantive effect of the letter or note.
B. The disciplinary communication is one which is intended to
punish or chastise the employee for failure to perfonn
properly. In a system of progressive discipline, one will
often see a very minor disciplinary response to a failure,
followed by progressively more severe responses to the
same or similar failures of performance. Thus, the first
disciplinary action, though very mild, has significance
beyond the immediate purpose, because more severe
discipline can be built on the first or further such failures of
performance.
C.A non-disciplinary communication may counsel or
recommend certain conduct to the employee~ but it has no
significance for future discipline. In other words, a non-
disciplinary communication cannot prejudice the employee.
Applying those considerations to the facts at hand brings about an interesting
exercise. In the case at hand, the Employer, in essence, suggested that the
"substantive effect'~ of the memorandum was to grant the grievor's vacation
request, albeit 'Çgrudgingly" and to review the circumstances that brought
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about that reluctance. The Union's position was that the "substantive effect"
was to ensure that the grievor was put on notice that her actions throughout
this incident were unacceptable or "concerning". I must agree with the
Union's view in this regard. I understand why the Union and the grievor
thought that this memorandum was intended to ensure that the grievor knew
that the Employer was displeased with her. Indeed, I think the Employer
wanted to underscore this point by making clear that it intended to keep the
memorandum on the Supervisor's file.
The second consideration to undertake as set out above is whether the
communication at issue is intended to chastise an employee for failure to
perform properly. I am of the view that a recipient of the March
< Memorandum would, no doubt, feel chastised and would certainly have a
full understanding as to why the Employer thought it necessary to
communicate its discontent.
It is the third consideration upon which the Employer relies heavily. It
steadfastly maintained its view that it never intended to discipline the grievor
and that she will not be prejudiced by the communication. I accept that the
Employer genuinely held this view, however, this intention is not sufficient
for me to find the Memorandum of March 2,2000 non disciplinary.
In Re Hilton Villa (surpa), a check list for use in assessing whether
discipline has been imposed was set out at page 161:
Arbitrator Price found that the proper characterization of disputed
letters issued to employees by management is ultimately a question of
fact based on all of the circumstances of the case including the
following:
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- other relevant colTespondenoe and surrounding circumstances, if
they help the arbitrator to interpret the memorandum;
.. whether the memorandum was specifically directed at particular
employees
. .. whether the letter referred to possible disciplinwy action if the
conduct persisted;
.. Whether the letter suggested that the employee's action were ill-
founded or improperly handled;
- Whether the language used in the memorandum refers to
communications of performance expectations rather than the
identification of concerns or unacceptable or insubordinate
behaviour possibly wananting discipline in the future if continued;
- Whether the purpose of the memorandum appears to have been to
COITect undesirable behaviour by specific employees;
- Whether the employer addresses its concerns in a supportive
manner and whether any support is offered to improve the
perceived problems;
- Whether the memorandwn itself is in a disciplinary format.
I found this checklist to be of assistance in this matter. The Board in Re
Hilton Villa (supra) determined that the "Letter of Expectation" was. in fact,
disciplinary because the overall tone was accusatory and the actions referred
to would nonnally be seen to be ((culpable" in the labour relations context.
The letter at issue in that case included phrases such as "you did not respond
or follow procedures appropriately"; "You could have delegated.... Rather
you left the residents' nutritional needs jeopardized by not prioritizing your
duties"; "we trust you will endeavour in the future to follow proper
procedure and prioritize appropriately"; and "I am committed to providing
you with the support and assistance necessary to ensure that you are able to
effectively carry out your responsibilities".
1 certainly understand why the parties have disparate but genuinely held
views as to the appropriate characterization of the Memorandum at issue.
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However, if I apply the circumstances of this matter to the check list set out
in the quotation cited in Re Hilton Villa (supra), I am buttressed in my view
that the March 2,2005 Memorandum is disciplinary in nature.
The overall tone of the March 2, 2005 Memorandum suggested that the
grievor's actions were, as set out in Re Hilton Villa "ill-foWlded or
improperly handled". Ms. Trapani was told that her vacation was approved
"in light of the fact that [she] already booked" her flight. Further, it was
stated by the author that "this decision does not come easilf'. Indeed, it was
"grudgingly" given. The grievor was also told that "this confusion and
resulting vacation time is disappointing" and that her choice to take her
original vacation time was "concerning and has led to additional stress being
placed" on her co..workers. I am of the view that these words directly
addressed an "identification of concerns or unacceptable" behaviour. While
there is no specific suggestion that Ms. Trapani's actions constituted
culpable behaviour, it was certainly made clear that the Employer found her
actions unacceptable.
Further, it would be difficult to fmd that the Employer addressed its
concerns in a supportive manner. Again, the tone of the Memorandum
appears to be drafted so as to ensure the grievor understood that her
behaviour was not acceptable and "disappointing" to the Employer. The
purpose of this communication would appear to be more than a mere
clarification of performance expectations. The words chosen by the author
lead me to agree with the Union's suggestion that the Memorandum
chastised the gTievor for her behaviour, irrespective of the Employer's
intentions in this regard.
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As mentioned earlier, I acknowledge the Employer's assertion that it did not
intend to discipline the grievor. The fact that the Employer did not send a
copy of this letter to the Local Union President is further evidence of that
intention. I also note that in the Memorandum to the grievor she was told
that she is a very valued member of the team and that the Employer relies
upon her expertise. However I have no hesitation in declaring that the
Memorandum of March 2, 2005, when full considered is disciplinary in
nature and therefore the Employer's preliminary objection is dismissed.
The Employer contended that if this communîcation is found to be
disciplinary in nature it would fmd itself constrained with respect to what
notes or memoranda it could maintain in its various files. I understand that
Concern. However, I do not agree that this decision imposes any further
constraints upon the Employer than existed previously. Further, I agree with
earlier other Boards of Arbitration that there are sound labour relations
. reasons for the proposition that an Employer must maintain the ability to
give a frank assessment of a1l employee's perfonnance. That might have
been what was intended in this instance. However, for the reasons stated
above, the communication at issue in this matter falls within the arbitral
gambit of discipline.
The Union suggested that it would be appropriate for a variety of reasons for
this Board to order the removal of the letter at this time. I think not. The
Employer will have to decide whether, in light of its position and this ruling,
it wi11 withdraw the letter. If the Employer elects not to do so this matter will
resume and an assessment of just cause will have to be made.
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I ask Employer counsel to notify my office and the Union as to its decision
in this regard.
Dated in Toronto this 26th day ofMarch~ 2006~
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