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HomeMy WebLinkAbout1988-0573.Cole.88-12-06 ONTARIO EMPLOYES DE LA COURONNE CROWN EMPLOYEES DE L 'ONTARtO GRIEVANCE COMMISSION DE SETTLEMENT R~GLEMENT BOARD DES GRIEFS 180 DUNDAS STREET WEST, TORONTO, ONTARIO. M,SG 1Z8 - SUITE2100 TELEPHONE/TL~I,.~'PHONE 180, RUE DUNDAS OUEST. TORONTO, (ONTARIO) MSG 1Z8- BUREAU2100 (416) 598-0688 573/88 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD Between: OPSEU (J. Cole) Grievor - and - The Crown in Right of Ontario (Ministry of the Environment) Emp 1 oye r Before: M.V. Watters Vice,Chairperson J. Solberg Member P. Walkinshaw Member For the Grievor: M. Bevan Grievance Officer Ontario Public Service Employees Union For the Employer: K.B. Adams Staff Relations Officer Ministry of the Environment HEARING: November 1, 1988 DECISION This proceeding arises from the grievance of Mr. John Cole dated April 22, 1988, wherein he contested the propriety of a one day (12 hour) suspension imposed as a consequence of certain entries which he made in the Shift Engineers' Log Book on April 10th and 12th, 1988. At the material time, the grievor was employed as an Operator in the Lakeview Sewage Treatment Plant. He had occupied such position for a period of approximately eight years. The board was advised that the grievor had never previously been disciplined for an offence of the nature described below. The facts of the matter were not in dispute to any significant degree and may be briefly stated as follows: (i) In early December, 1987, certain material of a racial nature was found inside the locker of a black employee at the facility. This incident led to the posting of the following memos on all of the plant notice boards: "1987 12 07 TO: All Staff, South Peel Water & Sewage System. FROM: 3. M. Timko, P. Eng., Systems Manager, South Peel Water & Sewage System. There has recently been an incident where a South Peel employee has received an anonymous racial harassment in the workplace. I consider this to be a most deplorable and serious act which is contrary to the Human Resources Policy of this Ministry. Management will be conducting -1- .an official investigation of this incident and has also con.tacted police for assistance. Some employees may be interviewed during the investigation and I would request full co-operation. I have also requested that copies of the Ontario Human Rights Code be made available so that employees may be made. aware of their rights and obligations. Subsequent to the investigations we will arrange to hold Human Rights information sessions for ali employees at South Peel. It is regrettable that this incident has occurred and that this action has had to be taken. I hope that these measures will assist in ensuring that such an incident is not repeated." (Exhibit 3) and "1987 12 23 TO: All Staff Central Region FROM: G. Mierzynski, P. Eng. RE: Discrimina'tion & Name Calling in the Workplace In recent months, incidents have come to my attention involving allegations of racial discrimination and name calling. As you should be aware, the Government of Ontario has 'made a commitment to the people of this province to ensure equality of treatment and opportunity to all citizens. The Government has stated clearly that it will take a very active role in eliminating all forms of discrimination whether intentional or otherwise. The Ministry of the Environment as part of the Ontario Government, shares this commitment. We have a responsibility to ensure that our work environment is free of racial, sexual, religious, or other forms of discrimination. Behavior such as name-calling or slurs against individuals are also clearly unacceptable. To support these efforts, Central Region will ensure that training in the areas of human relations and Employment -2- Equity is expamded and intensified to increase the aware- ness of.each staff member. Information on the Human Rights Code may be obtained from the Administrative Services Section. In the meantime, it remains the duty of all our employees to ensure that our responsibilities are being met in every way. I would remind all staff members that this is not only a policy of the Ontario Government, but it is also the law of the Province. Failure to act accordingly will be viewed as a serious offence. It should also be-clear to staff that name-calling or slurs against individuals will not be tolerated by the Ministry." (Exhibit 4) The grievor testified that while he was aware of these memos, he did not peruse them with "a fine tooth comb". In particular, he had not read every word Of Exhibit '4' and.was not clear as to the ramifications that would.flow from a perceived breach of same. (ii) On March 29, I988, this same employee was the subject of further harassment. This person returned from a vacation period' on that date and discovered that his work clothes had been slashed and their buttons removed. This resulted in the posting of a third memo dated April 6, 1988, to the following effect: "1988 04 06 TO: All Staff Lakeview W.P.C.P. FROM: D. A. Lewis, Superintendent Lakeview W.P.C.P. L. Holyk, President 0PSEU Local 584 RE: DEPLORABLE INCIDENT - THERMAL FACILITY - LAKEVIEW W.P.C.P. - S.P.S.S. This memorandum is with reference to the deplorable incident that occurred recently in the Thermal Facility. This type of incident is extremely upsetting to all concerned and is mot condoned by members of Management or Union. -3- We are employing every measure possible to ensure there is no recurrence of this nature." (Exhibit 8) Both of the occurrences described above were investigated by the police and by the Human Resources Branch. (iii) On April 10, 1988, the grievor made the following handwritten notation in the Shift Engineers' Log Book: "ED ALINEA SCAB WHY DID YOU LET YOUR CREW RUN DOWN #4 DECANT. IT UPSETS THE PROCESS. JOHN COLE" (Exhibit 5) On April 12, 1988, he made a second notation in the same log which read: " SCAB ED #5 FILTER IS ON AND IT IS A NEW CLOTH. IT REQUIRES CONSTANT CHECKING AND ADJUSTING. FUNCTION ED. JOHN COLE" (Exhibit 6) The grievor admitted to authoring these statements. He testified that he did so out of frustration with Mr. Alinea and his crew. It was his evidence that his work on the day shift would be increased if Mr. Alinea, as Shift Engineer, did not ensure that all work was completed on the night shift. It would seem that the grievor did not entirely approve of the policy of the employer to use only five employees on the night shift instead of six should one of same call in sick. It was apparent that the grievor hoped that these insertions in the log would serve to motivate Mr. Alinea'$ crew to complete all of their responsibilities. The grievor denied that the comments were racially inspired. He stated in this regard that he did not intend them as a racial slur against Mr. Alinea who is of Filipino descent. The grievor conceded in retrospect that he should' not have written what ~he did in the log. Rather, he agreed that he should have taken the matter up with Mr. Doug Lewis, the Plant Supervisor, as he had done on one prior occasion. From the evidence presented, it would appear that of the approximately one hundred employees in the facility, about twenty five would likely review the log and thereby have an opportunity to see the comments inscribed therein by Mr. Cole. (iv) The above-mentioned situation was brought to Mr. Lewis' attention by Mr. Alinea on the evening of April 12, t988. Mr. Lewis described Mr. Alinea as being "agitated" about the insertions and the fact that the word "scab" had been repeated a second time. It was his recollection that the Shift Engineer wanted some action taken as he was of the view that he should not be exposed to such "insults" from an operator. The board was informed that while Mr. Alinea was the "upper person" on the shift, he remained a bargaining unit employee. Mr. Alinea was not called upon to testify at the hearing. We have not therefore had an opportunity to evaluate his feelings' and perceptions vis a vis the entries complained of. (v) Mr. Lewis subsequently met with Human Resources personnel on the morning of April 13, 1988. It was thereafter determined that the imposition of a one day suspension was in order in view of the two earlier warnings as represented by Exhibits '3' and '4'. Given the shift schedule and the fact that he was "on courses" Mr Lewis was unable, to meet with the grievor until April 22, 1988. Prior to such meeting, the Plant Supervisor prepared the letter of suspension. It was Mr. Lewis' assertion that he intended to give same to the grievor if he did not receive a satisfactory explanation from him. At the meeting, the grievor admitted to making the entries which led to this proceeding and agreed that the use of the word "scab" should not be tolerated. He also advanced his reasons for so writing in the log book. This explanation was not accepted by Mr. Lewis. Indeed, Mr. Lewis conceded that he was unable to think of an explanation that would have satisfied him at that time. He denied, however, that he had predetermined his response prior to hearing from the grievor. The -5- i grievor was therefore given the letter of suspension which read: "1988 04 22 TO: John Cole, Sludge Treatment Operator Thermal Facility Lakeview~ W.P.C.P. FROM: D. A. Lewis, Superintendent Lakeview W.P.C.P. RE: SUSPENSION - WEDNESDAY, MAY 4, 1988 - THERMAL FACILITY - LAKEVIEW W.P.C. Two letters have been issued to all staff members with reference to name-calling, racial slurs and harassment, stating that this type of behavior-will not be tolerated. The first letter was from G. Mierzynski, our Regional Director and issued on December 23, 1987. The second letter was from J. M. Timko, our System Manager, deploring an anonymous racial harassment incident. While you may strongly disagree with the decision of Management, because a Shift Engineer is carrying out instructions you have no justification in calling him a "scab". This was done by you, in writing, in the Shrift Engineers' Log Book. You have no authority to do this and this also contravenes the Operating Engineers Act. Due to the foregoing you are being suspended for one, twelve-hour shift, without pay, on Wednesday, May 4, 1988. If there are any further incidents of this nature they will not be dealt with lightly. Ultimately they could lead to future suspensions and ultimate dismissal depend- ing on the gravity of the situation." (Exhibi~ 7) As noted therein, the grievor served ~he one day suspension on Wednesday, May 4., 1988. Given the nature of his shifts, this constituted the loss of twelve hours of pay. (vi) In his evidence, Mr. Lewis stated that he did not consider the word "scab" as being racial in nature. Rather, he saw it as a word suggesting some threat to the person to whom it is directed. Mr. Lewis was unable to advise us as to whether Mr. Alinea felt -6- threatened by the employment of this language. Mr. Lewis was asked in cross-examination as to why the earlier memos stemming from a racial incident, viz Exhibits '3' and '4', were relied on in the notice of suspension. His response was that they were directed to harassment and name-calling, racial or otherwise, and that they served to communicate to the grievor the fact that such behavior would not be tolerated. Mr. Lewis equated the memos referred to with written warnings that might be given to a particular employee for purposes of imposing' progressive discipline. Lastly, he seemed to be of the opinion that the use of the word "scab" in this case contravened the Ontario Human Rights Code, 1981, notwithstanding that it was not racially motivated. The union, in argument, conceded that there was just cause for the imposition of some discipline. It submitted, however, that in the circumstances the one day suspension was excessive and that it should be replaced with a letter of reprimand. Such position was premised on an assertion that the employer had improperly categorized the incident as racial. In this regard, reference.was made to the letter of suspension, Exhibit '7', which itself referred to the earlier memos of December 7th and 12th, 1987 that had been issued subsequent to a racial incident at the facility. Emphasis was also placed on Mr. Lewis' assertion that had such memos not been issued or considered, a written reprimand would have been the more appropriate response. The union further argued that the memos referred to should not have been considered as prior warnings for purposes of progressive discipline. Lastly, the representative of the union noted that there was no evidence before the board that Mr. Alinea felt threatened by the use of the word "scab". -7- The employer's position, simply put, was that the one day suspension was a reasonable response in the context of the inappropriateness of the comments and the mood in the plant. It was submitted that Exhibits '3' and '4' could legitimately be considered as prior warnings for purposes of assessing'the reasonableness of the discipline. The board was urged not to interfere with the action taken in this instance. The representative of the employer provided copies of the following awards: Gillies, 129-77 (Prlchard); Klonowski, 557-81 (Roberts); Asselstine, 276-82 (Draper); Shar~e, 56, 58-84 (Swan). He did not, however, make any specific submissions as to their applicability to this dispute. After considering the evidence and a~gument presented~, the judgment of this board is that the one day suspension should be vacated and replaced with a written reprimand. We have arrived at this conclusion for several reasons: 1. It is clear from the presentation of its case that the employer treated this incident as being racial in nature, notwithstanding Mr. Lewis' assertions to the contrary. In his opening remarks, the employer representative used the words "racial slur" in describing the impugned conduct of the grievor. This theme was pursued in the examinat- tion-in-chief of Mr. Lewis, as much of his testimony was related to the racial incidents which had previously occurred at the facility. Numerous references were made to the Ontario Human Rights Code, 1981 by both this witness and the representative. Additionally, the letter of suspension, Exhibit '7', specifically referred to the earlier memos of December, 1987 that had been issued as a result of the first racial incident. It is the finding of the board that the employer was in error in treating this incident as being racially motivated. The evidence simply does not support the validity of such an approach. We have been given no reason to reject the evidence of Mr. Cole to the effect that he was motivated by a misdirected intention to communicate a work-related concern to Mr. Alinea. and his crew. While the words used to send this message were clearly inappropriate, the board does not consider that they were employed to racially harass or slur Mr. Alinea. In this regard, we cannot accept the interpre- tatio~ advanced by the employer in respect of section 4(2) of the Code. This provision refers to harassment in the work place on the basis of a number of prohibited grounds. The foundation for establishing a contravention has not been demonstrated in this case. In summary, we find that the employer imposed the one day suspension on the premise that it had to deal firmly with another incident of a racial nature. On the- evidence presented, the board is of the opinion that such premise was unwarranted in the circumstances. 2. The board does mot concur with the submission of the employer that the memos of December, 1987 could be considered as written warnings for purposes of assessing discipline. These memos were in substance directed to problems of a racial nature dissimilar to the incident before us. Further, we do not agree that they may be~ treated as the equivalent of a letter of warning as might be found in an employeets personnel file. The latter serves as'documentary evidence of a work place infraction which attracted the employer's attention sufficient to merit a disciplinary response. In contrast, the memos here simply served as a statement to all employees with respect to the general expectations of the employer vis a vis certain types of conduct. For these reasons, we believe that the employer incorrectly relied on the memos in determining its disciplinary response. In this regard, we have noted Mr. Lewis' statement that a written reprimand would have been given but for the earlier "warnings". 3. As stated above, the use of the word "scab" in the log entries constituted unacceptable and improper conduct on the part of the grievor. In our estimation, the employer was e~titled to discourage similar actions in future by making it clear to the grievor, and ultimately to the entire work force, that such conduct would not be tolerated. The parties, as noted, were in agreement that some discipline was warranted. Their difference was with respect to the appropriateness of the one day suspension. The board, in this case, has some concern over the fact that the entries were directed to an employee who -9- exercised supervisory or leadership responsibilities, albeit as a member of the bargaining unit and on a different shift. We have also considered the evidence presented by Mr. Lewis that these entries could be seen by up to twenty five other employees. We have also noted however that no evidence was presented to suggest that Mr. Alinea perceived the use of the word "scab" as a threat. Further, the board was informed that the grievor had not been previously disciplined for any similar conduct. On balance, we have not been persuaded that the use of the offending language per se merited the suspension imposed at first instance. The board has reviewed the authorities provided by the employer. We do not find any of these awards to be particularly helpful to the resolution of the present dispute. While we might agree with the caution expressed in Gillies in respect of an arbitration board's inclination to substitute its judgment for that of the employer, such is inapplicable to the presemt situation. Here, the employer in imposing the discipline proceeded on the assumption that the conduct amounted to a racial slur or racial harassment. We have found this premise to be incorrect. Given this conclusion, we consider that a written reprimand would be more appropriate in the circumstances. The board therefore orders that the 'one day suspension be removed from the grievor's record and that he receive the financial benefits he was entitled to for that day. We further order that the grievor receive a written reprimand and warning from the employer relating to the incident, advising him that his behavior was wrong and that any further incidents could result in a more severe penalty. The board will reserve jurisdiction im order to -10- ! .o ~ deal with any difficulties that might arise in the implementation of this award. DATED at Windsor, Ontario, this 6th day of December , 1988. M. V. Watters, Vice-Chairperson J. Solberg, Member ~ 'P. Wal]~inshaw, M~er -11-