HomeMy WebLinkAboutGosselin 99-09-01 IN THE MATTER OF AN ARBITRATION
BETWEEN:
CONFEDERATION COLLEGE
(THE COLLEGE)
AND:
ONTARIO PUBLIC SERVICE EMPLOYEES UNION
(THE UNION)
AND IN THE MATTER OF THE GRIEVANCE OF KIMBERLY GOSSEL1N
(#97D295)
BOARD OF ARBITRATION:
Howard D. Brown, Chair
Jon D. McManus, Union Nominee
Rod Halstead, College Nominee
APPEARANCES FOR THE COLLEGE:
G. Lorne Firman, Counsel
Doug Demeo, Dir. HR
Joanne Kranyak, Mgr. ER
APPEARANCES FOR THE UNION:
Mary Anne Kuntz, Grievance Officer
Kim Gosselin, Grievor
A FURTHER HEAR1NG IN THIS MATTER WAS HELD AT THUNDER BAY ON
JUNE 23, 1999
AWARD
By its award dated December 31, 1998, the Board reserved its jurisdiction to
determine remedy and compensation as a result of the reinstatement of the Grievor in her
employment with the College as set out in the majority award of the Board. Following its
release, the Board was requested to reconvene to deal with these issues as the parties
were unable to settle them directly.
At this heating, the parties dealt with the remedial issues remaining in dispute
between them which concerned the extent of the penalty, compensation payable to the
Grievor including wages, vacation credits, sick credits and interest. As well, the Union
submitted that there should be an additional amount paid by the College for
compensation for the tax implication which could arise from a lump sum payment to the
Grievor in this tax year.
In order to deal with the items relating to compensation, it is first necessary for
the Board to resolve the extent of the penalty which was not determined in its award. The
Board found that while the College had cause to take disciplinary action against the
Grievor, the penalty of discharge was excessive and exercised its discretion to substitute a
penalty of suspension. The Grievor was reinstated in employment with the College on
February 1, 1999. We refer in this regard to the following excerpts in the majority award
of the Board:
" The essential purpose of the application of
disciplinary penalties is to correct improper culpable
behaviour of an employee. The College submission is that
the final incident exemplified that the application of
previous discipline had not corrected the Grievor's work
performance which was repeatedly careless. We have
found that indeed there was cause to take disciplinary
action but we conclude on all of the evidence that the
penalty of discharge was not a reasonable response in all of
the circumstances and was too severe in that further
corrective action should have been taken by the College
with an increased penalty but without loss of employment.
We are satisfied on the evidence that the Grievor was well
on her way to correct past errors and to meet the reasonable
standards of the College applicable in her work area at the
time of the final incident, the circumstances in which that
incident must be assessed for this purpose has been set out
above. In the application of the progressive disciplinary
principle which is the policy of the College, the essential
purpose is to correct unacceptable conduct and to alert the
employee of the employer's dissatisfaction. In the
circumstances of this case, that effect will have been
achieved by a substantial suspension without pay together
with a final warning that the Grievor's employment is
subject to termination upon repetition of unacceptable work
performance. This is not a case where deterrence becomes
a factor in the assessment of discipline as this is related to a
personal circumstance of the Grievor and her work
relationship with the College and performance of her
regular functions as a Clerk in the Shipping and Receiving
area which is of an individual concern not related to any
other employee of the College."
Atp. 62:
" The Grievor took responsibility for her carelessness
in this incident and recognized that it was her error which
caused the missed shipment of the important documents in
the parcel for which she immediately apologized when the
situation was brought to her attention on January 6th. The
teamwork which Mr. Blundon continually stressed to the
employees in the Shipping and Receiving area particularly
when the staff had been reduced by one employee which
increased the duties of the others, was substantially lacking
in the department at this critical time which we believe was
a contributing factor in the oversight and delay of this
parcel. As well, we have considered that there was no
negative consequence to the College in the result. While
therefore the Grievor's carelessness was a cause of the
incident of the delayed mailing of the parcel, we find that
there are factors of mitigation which we have taken into
account as to the seriousness thereby to be attributed to the
final incident..."
The submission of the Union is that a substantial penalty indicated by the Board
should not exceed 30 days where the Grievor had accepted total responsibility for the
final incident and her prior disciplinary record had minimal consequence subject to which
the Grievor should be fully compensated and without loss of seniority. The Grievor had
obtained other employment within three weeks of her termination by the College and
earned approximately one-half of the amount she would have received from the College
had she not been discharged. This employment was her only source of income and the
Union objected to the request of the College for production of her income tax returns for
the years involved in her claim. Re Canada Post Corp. and C.U.P.W. (Allan) (1993),
32 L.A.C. (4th)129 (Blasina)
The College's position is essentially that the penalty of suspension should apply
from the date of discharge to the date of the award and that no compensation be awarded
in that period. Reference to the penalty issue was made to the following awards: Re City
of Ottawa and Ottawa-Carleton Public Employees Union, Local 503,
65 L.A.C.(4th)299 (Thorne); Re Sault College and O.P.S.E.U. (unreported, Swan,
July 6, 1993); Re The Dryden Municipal Airport Commission and Local Union 1730,
I.B.E.W. (unreported, Springate, November 30, 1987); Re Canada Post Corp. and
C.U.P.W. (unreported, Tom Jolliffe, September 30, 1993); Re ChromoloxCanada
Limited and U.A.W. (unreported, Rayner, April 29, 1986); Re Canada Safeway Limited
and U.F.C.W., Local 1518 (unreported, Glasner, July 17, 1995); Re PPG Canada Inc. and
Aluminum, Brick and Glass Workers International Union, Local 248G(unreported,
Samuels, July 27, 1987); Re MacMillanBloedel Ltd. and I.W.A., 33 L.A.C.(4th)288
(Hope); Re Dover Corporation (Canada) Limited and International Union of Elevator
Constructors', Local No. 82 (unreported, Glasner, April 10, 1996); Re New Dominion
Stores and R.W.D.S.U., Local 414 (unreported, Clement, March 16, 1994); Re
Government of the Province of British Columbia and British Columbia Government
Employees Union (unreported, Kelleher, July 10, 1987); Re Canada Safeway Limited and
Manitoba Food and Commercial Workers Union, Local 832 (unreported, Baizley,
October 27, 1987); Re Treasury Board (EmDlovment & Immigration) and Qui~lev, 31
L.A.C.(3d)i 56 (Cantin); Re Canada Post CorD. and C.U.P.W. (Gagnon), 8 L.A.C.(4th)97
(Thistle); Re Nova Scotia Liquor Commission and Nova Scotia Government EmDlovees
Union, Local 470 (1993), 37 L.A.C.(4th)185 (Outhouse); Re Canada Post CorD. and
C.U.P.W. (Bauer) (1998(, 1 L.A.C.(4th)156 (Thistle).
The assessment of an appropriate disciplinary penalty to be applied in the
discretion of the Board to amend a penalty of discharge is made more difficult when as in
the present matter, there have been extensive hearings and the matter has taken almost
two years from the date of discharge to be completed. In other awards dealing with
termination of employment where hearings have been completed within about twelve
months of the termination date, where it has been found to be justified, arbitrators have
reinstated the grievor in employment but without compensation with the time off work
recognized as the period of suspension to be imposed. This Board has, for the reasons
stated in its award, determined that the penalty of discharge was excessive in the
circumstances but that a substantial suspension was justified and mitigated the penalty of
discharge based on the factors set out in its decision. To complete its award and having
considered the submissions of the parties on this issue, the Board has taken into account
the circumstances of the final incident involving the Grievor's carelessness and the effect
of the mitigating factors as found. The Board has also considered the Grievor's seniority
and past disciplinary record, the circumstances of which were set out in the award but
which remained on the Grievor' s personal record of employment as of the date of her
termination. At p. 54, the Board stated:
"The Grievor understood that she had been suspended for
the reasons stated in the disciplinary notices and admitted
carelessness and acknowledged her mistakes. The Grievor
did not request a removal of any of the disciplinary notices
under Article 16.4 so that all remain on her file."
At p. 66, the Board stated:
"We indicated at the hearing that the Board would admit
evidence concerning the circumstances in which these
disciplinary penalties were issued but that it could not make
any determination as to the justness of the discipline
imposed as they were either not grieved or grieved and
settled and all remain as part of the Grievor's disciplinary
employment record and must be considered as such..."
Further at p. 67, the Board stated:
" There is evidence of explanations and mitigating
circumstances with regard to the disciplinary actions taken
in 1995/96 but which remain on the employment record of
the Grievor and must be given due consideration.
Nonetheless, both the five-day and two-day suspensions
which were grieved and resolved by the parties to remain as
suspensions on record but with pay, reflect an
acknowledgment of contested areas of mitigation which
affected the reduction in the penalties. While the
suspensions as such remain as discipline of record, the
financial adjustment reduces the extent of the significance
of these suspensions as a disciplinary penalty and although
they cannot be considered as a written warning, they have a
lesser effect than a suspension with a significant monetary
penalty. In our view, the parties considered the
circumstances of the events giving rise to those suspensions
and agreed to maintain the disciplinary record which is a
penalty in a negative reflection on the Grievor's
employment relationship but there has been an easing in the
effect of the suspensions but which as adjusted, remain on
her employment record..."
The majority of the Board did not consider the merits of the parties' positions with regard
to those grievances, the results of which are considered as being the Grievor's
disciplinary record. Article 16.4 of the collective agreement provides that:
"Each employee may, once each calendar year, request the
removal of a disciplinary notice that has been in his/her
official personnel file for more than one (1) year. The
removal of such notice shall be at the discretion of the
College. Such discretion shall not be exercised
unreasonably."
The evidence is that the Grievor did not exercise her right to request the removal of any
of the disciplinary notices on her file and so to request the College to exercise its
discretion in that regard. The Board does not within the collective agreement have the
authority to alter the Grievor's disciplinary record by removal of any of the disciplinary
matters on her personnel record. The terms of this Article require that the employee
make a request and the College to consider such request and as that had not been done by
the Grievor, no issue arises as to the exercise of the discretion of the College.
The facts in the awards referred to by the parties on which the arbitrators'
conclusions are derived differ from the circumstances of this grievance but it is useful in
considering the assessment of the appropriate extent of a substantial suspension that in
some of these other cases, reinstatement in employment has been ordered without
compensation for a period of approximately one year as in the Dryden award. Arbitrator
Thistle in the Canada Post award, dealt with a discharge for a theft from the mail and
determined that a lengthy suspension amounting to one year without pay would be
substituted for the discharge. In the Ottawa General Hospital award, there was a review
of the penalty in circumstances involving a serious medical error and the Grievor's prior
disciplinary record which included a 5-day suspension, and the Board substituted a 12-
month suspension without pay for the discharge penalty.
The Board has ordered the Grievor's reinstatement subject to a substantial
suspension with a final warning against repetition of unacceptable work performance.
Having regard to the submissions of the parties and in all the circumstances relating to
the disciplinary penalty of the Grievor as more particularly set out in the Board's award
as to the final incident and the Grievor's previous disciplinary record, we conclude that a
12-month suspension without pay but without loss of seniority or other benefits was
justified as an appropriate disciplinary response. The essential purpose of the imposition
of discipline is corrective and rehabilitative of the employee in the workplace as
recognized by a progressive discipline policy which the Board acknowledged that the
College had applied but in our opinion, with an excessive penalty to the Grievor in the
circumstances. Therefore, the Board therefore finds and directs that the Grievor's record
shall be amended by the substitution for the penalty of discharge by a suspension for 12
months without pay from the effective date of her termination on January 20, 1997 but
without loss of seniority or benefits. Subject to the foregoing, the Grievor shall be
compensated for her loss of earnings from the expiry date of the suspension to the date of
her reinstatement in employment on February 1, 1999.
The Grievor was successful in mitigating her damages by obtaining employment
within three weeks of her termination by the College. The amount of her earnings for the
period in which compensation is payable by the College shall be deducted from the
amount of earnings she would have received had she been employed by the College in
that period. It is not unreasonable and is indeed generally accepted that to confirm the
amount of an employee's earnings to establish the correct amount of compensation, that
income tax returns covering the period in review may be requested and considered to
determine and verify the actual amount required to be paid to the employee. The Board
therefore directs that the Grievor provide the College with her income tax return for the
taxation year of 1998.
The amount of vacation credits and sick leave credits to the Grievor's account are
not at issue. The Grievor shall receive the vacation credits applicable to her period of
absence for a total of 38.9 days based on her service.
Simple interest shall be calculated and paid on the amount of compensation to the
Grievor on the basis of the formula set out in the Hallowell House Limited award. For
this purpose, we note that the rate set by the Bank of Canada when the complaint was
filed in January 1997 was 4.75%.
The Board rejects the Grievor's claim for an adjustment to the total amount of
compensation payable to her as a result of this award as further compensation to cover
any tax consequences from receipt of the lump sum payment in one year. In that regard,
we have reference to the Ottawa General Hospital and OPSEU, (unreported, Roach, May
28, 1991) in which the Board followed the decision of Arbitrator Jolliffe in Re Canada
Post Cord and C.U.P.W., 6 L.A.C.(4th)232 in which the Arbitrator stated:
"Likewise the fact that the grievor will receive her
monetary compensation package lump sum, putting her in a
higher marginal tax bracket is, in my view, too remote a
heading of damages. ! know of no cases where an
employer has been directed to pay additional compensation
because of the tax ramifications of a lump sum payout and
am not prepared to find that heading a foreseeable
consequence of the discharge."
We are satisfied in the circumstances of the present matter that the ratio of that
decision should be followed. Therefore, the Grievor's claim for additional compensation
for her tax liability is not allowed and is dismissed.
The Board directs the parties to determine the exact amount of compensation to
be paid to the Grievor in accordance with the terms of this award. The Board retains its
jurisdiction as to the implementation of this award and the amount of compensation
payable as a result thereof.
DATED AT OAKVILLE THIS DAY OF SEPTEMBER, 1999
Howard D. Brown, Chair
Rod Halstead, College Nominee
Jon D. McManus, Union Nominee