HomeMy WebLinkAboutGosselin 98-12-31 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 GOSSELIN
(#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
Richard Belleau, Pres. L. 731
Kim Gosselin, Grievor
HEARINGS IN THIS MATTER WERE HELD AT THUNDER BAY ON APRIL 23,
NOVEMBER 6, 7, 1997, FEBRUARY 10, 11, APRIL 15, 16, 17, JUNE 16, 17,
18, 1998.
AWARD
The grievance dated January 27, 1997 is a claim that the Grievor was discharged
without just cause and requests reinstatement with compensation. The grievance was
filed in accordance with the terms of the collective agreement in effect between the
parties at all material times and there is no dispute that the Board was properly
constituted and it has jurisdiction to deal with the merits of the grievance. The Board
received the evidence and submissions of the parties at the hearings listed above, the
Board met in executive session on June 18th in Thunder Bay and at Toronto on September
8, 1998 to consider the matters at issue and the preparation of its award set out below.
By letter dated January 20, 1997 from the President of the College to the Grievor,
her employment was terminated effective as of that date. The reference in that letter was
to a memorandum to the Grievor by Mr. Blundon, her manager, of that date concerning
the incident on December 19, 1996 in that a shipment from Irene Izatt, Associate Dean,
Health Sciences and Human Services brought to the Grievor in the Shipping Receiving
area on December 19th was not shipped as requested. The Grievor was employed in the
Purchasing Department with functions including shipping, receiving and mail which were
alternated with another clerk in the department, Glen Lindberg, on a daily rotation basis.
The mail duties included receiving parcels from College departments for delivery by mail
or courier to others as well as responsibility for the regular incoming and outgoing mail
to the College. A large package was taken by Carolyn Bloomfield to Shipping on
December 19th which was to be sent that day to the Commission on Dental Accreditation
and included critical material for a program in the Health Sciences department.
Mr. Lindberg was absent and the Grievor was responsible for shipping that day. She
received the package from Ms. Bloomfield but which was not shipped that day or the
next as required. The College closed for the Christmas holidays on December 20th. The
package was not shipped until January 6, 1997 when Ms. Izatt was advised that the
Commission had not received the delivery from the College and had missed the
submission deadline date.
The evidence concerning this incident is more particularly set out hereafter but it
is that which the College asserts was a culminating incident in an unsatisfactory work
performance record of the Griever which considered together justified the Griever's
discharge from its employment.
The response at Step 3 of the grievance procedure of the President of the College
clearly sets out its reasons for the disciplinary action as follows:
The issue is whether the College had cause to take disciplinary action against the
Grievor as a result of the incident referred to above on December 19, 1996 and whether
the penalty of discharge was justified as a result. The Board received the evidence
concerning the culminating incident leading to the discipline as well as evidence of the
Grievor's record of employment and prior disciplinary action from October 1991.
The Grievor was hired by the College on October 24, 1988 in the Industrial and
Motive Power Department from which she applied for a j ob posting in September 1992
and was accepted as a Clerk 3 in the Shipping and Receiving area of the Purchasing
Department where she worked until the date of her termination of employment. While
the Board will deal firstly with the circumstances of the incident on December 19, 1996
which led to the disciplinary action being taken as a discrete incident of discipline before
dealing with the balance of the Grievor's record, the Board received all of the evidence of
the parties on all of the issues arising in the circumstances of the grievance at these
hearings.
The Board ruled orally at the hearing that as to the Griever's prior employment
record, a written warning was issued on August 21, 1991 by Mr. Bernosky, the Chairman
of that Division, and evidence could be received with regard to the circumstances of that
discipline. All other matters of record of a non disciplinary nature in 1991 and prior to
the Grievor's promotion to the Purchasing Department in 1992 were not relevant to the
issue and not admissible on that basis. The Board ruled that it could receive evidence of
the circumstances of the disciplinary actions taken against the Grievor which are included
in her employment record in which that discipline was imposed but does not make any
determination of whether such discipline was justified. The Board found that other than
the written warning issued to the Grievor in August 1991, there was no other relevant
discipline on her employment record until and after the performance appraisal of the
Grievor on July 1994. The Board further ruled that the evidence of the material which
came to the attention of the College in the days following the Grievor's termination
referred to in the President's memorandum dated February 5, 1997, was admissible but
subject to the Board's consideration of the weight to be given to such evidence. The
Board further ruled that the evidence of the circumstances of the Grievor's promotion
into the Purchasing Department was not relevant as it did not have any weight in the
Board's consideration of the cause of action and therefore not admissible in these
proceedings.
The position efthe Union is that during the week ef December 19th, the Griever's
co-worker was ill and absent from work until Thursday on which day the Grievor's
functions were shipping and receiving in which she was quite busy being at the end of the
week before the Christmas break. It was acknowledged that Ms. Broomfield delivered a
box of documents relating to the Dental Accreditation Program to the shipping and
receiving area on December 19th which was received by the Grievor but at issue is the
instructions given to the Grievor who claimed that she was not told of a delivery deadline
and the parcel was not shipped that day. The Grievor was assigned to mail duties and
Glen Lindberg was responsible for shipping and receiving. The package had been placed
on the receiving table by the Grievor on December 19th but was disregarded and not
discovered until January 6th when it was shipped. The Grievor had been subject to
unusual scrutiny from the fall of 1994 during periods that she experienced emotional
stress. It is its position that there was not cause to take disciplinary action against the
Grievor as a result of the incident on December 19th. In the alternative, the circumstances
of that incident and consideration of the Grievor's prior record does not justify her
dismissal from employment.
The College relies on its allegation of a pattern of conduct by the Grievor
involving carelessness in her work duties which culminated in the incident in December
1996. It is its position that the Grievor was given explicit instructions by Ms. Bloomfield
as to the requirements for the delivery of the package on December 19th which was to be
sent by courier to the Committee on Dental Accreditation that day. To meet the deadline,
it could also have been sent on December 20th when the College closed for Christmas
break. While it was fortuitous that the documents were accepted by the Committee when
the package was delivered on January 6th, there would have been severe consequences for
the College if the accreditation for the College program had not been passed by the
Committee. The seriousness of that incident as well as the Grievor's entire employment
record in which progressive discipline was applied, justifies, in its submission, the
disciplinary discharge of the Grievor.
Irene Izatt, Associate Dean, Health Sciences and Human Services, testified as to
the accreditation survey required in the Dental Hygiene Program which included eighteen
students in a one year course covered by three full-time faculty members. The program
was scheduled for an accreditation survey in February 1997 in accordance with the
survey cycle established by the Commission on Dental Accreditation of Canada. She
said these are extremely popular programs which are given at eleven other schools in this
province. She co-ordinated the collection of the material required and because of staff
problems, the gathering of the information became difficult and a request for a one-year
extension of the survey was made to the Commission but declined in November. The
material for the survey to be sent to the Commission was gathered and completed on
December 18th in five binders which was placed in a box for shipment. She instructed
Ms. Bloomfield to take the box to the mailroom and have it delivered by the quickest and
safest method to be sent to Ottawa as the deadline was December 31st for the
Commission but December 20th at the College when it closed for the Christmas break.
She was concerned about its delivery that day as the College would be closed and
assumed it would be by courier and instructed Ms. Bloomfield to fax the Commission
that the box was on its way and if it did not arrive to call the College.
It was Ms. Izatt's understanding that the box was sent without problems on
Thursday, December 19th. When she returned to work on Monday, January 6th, she was
advised that the box had not been shipped and was still in the mailroom and that the
Commission had called to ask where it was. She was upset and felt that this was a
serious issue which she reported to Mr. Blundon by memorandum dated January 6, 1997.
The documents although received late were accepted by the Commission otherwise the
accreditation could have been suspended and the students would have had to write an
examination at a substantial cost to themselves. The College would then have to re-apply
for accreditation which means that the program meets the national standards.
Ms. Izatt instructed Ms. Broomfield to set out in writing what she had told the
mail clerk and that is set out in Ms. Broomfield's memo dated January 8, 1997. Ms. Izatt
did not know the Grievor and did not discuss this incident with her. She agreed that the
box could have been sent on December 20th to meet the deadline of the Commission and
expected that Ms. Bloomfield told the Grievor that it had to be shipped that day and at
least by December 20th. She said that if the mailroom was too busy, they would have
looked after the delivery of the package themselves. She understood from what she was
told by Ms. Bloomfield that the package was sent to the Commission on December 19th
as required so that there was no reason then for her to check the following day with the
mailroom to see if the box had been sent. She did not believe that would be. necessary.
She was of the opinion that Ms. Bloomfield had given explicit instructions to the Grievor
as to the delivery of the package.
Carolyn Bloomfield, an Administrative Assistant in the Health Sciences
Department assisted in putting together the material for the Accreditation Committee and
was asked by her supervisor, Ms. Izatt, to take the box which included the five binders to
shipping and receiving and find out which was the fastest and simplest method to send it
to Ottawa. She said at 1:45 p.m. on Thursday, December 19th, she carried the package to
the shipping~receiving office, put it on a bench and told the Grievor that it had to be sent
right away and asked what was the fastest and safest way to send it. Would that be by
courier, she asked? The Grievor said yes and she agreed. The Grievor said there was no
problem and would get it done for her and signed the Request to Ship form which is as
follows:
Ms. Bloomfield said she filled out the top portion of the Request To Ship
including the date and number. She saw the Grievor write the information at the bottom
of the request form which indicated the carrier as Purolator. She was not aware of
specific instructions about filling out these forms. Her memo to Ms. Izatt dated January
8th was as follows:
"This memo is in response to your request for clarification
regarding the communication between myself and the
shipping/receiving clerk.
On December 19th at approximately 1:45 - 2:00 p.m., !
delivered a box to the mail room to be sent to Ottawa.
! told the clerk that the package had to go right away and
asked if the fastest and safest way was to send it by courier.
The response was yes that courier was the best way.
! indicated it had to go out that day and she said no
problem, she would get it done for me."
In a memo dated January 14th, Ms. Bloomfield recorded that during the first week
of January, the Grievor came into their office and hid her head behind the mail and said
that she hoped she was not going to be yelled at since she had been yelled out already
today and was "very sorry for the mixup with the package but it had been very busy and
Glen was away for a couple of days. She also indicated that she had gone to Purolator
that day with other packages." Ms. Bloomfield replied that had she said that she was too
busy, they would have handled the package themselves and the Grievor again apologized.
Ms. Blooomfield said that she was told by Ms. Izatt to fax the Commission that the
material had been sent on December 19th which she did that day and as well called the
Commission to make sure they received the fax and if the box was not received, to let
them know. Ms. Izatt told her that the deadline for the material was December 31st but it
was required to be sent from the College on December 19th or by December 20th to meet
that deadline. She agreed those facts were not set out on the Request To Ship.
In cross-examination, Ms. Bloomfield reiterated that she told the Griever that the
parcel had to be shipped that day because of the closing of the College for Christmas and
they discussed a courier and said that she gave explicit instructions to the Griever that it
had to be sent to Ottawa that day which she assumed would occur. She did not check on
the following day whether the package had been received at Ottawa.
Jim Blundon has been employed by the College since 1971 and is the Manager of
the Purchasing Department in which the Grievor was employed along with Glen
Lindberg, both of whom held the same classification of Clerk/Supply. It is their
responsibility to handle the functions of the shipping and receiving area which includes
mail. He said that when a parcel was taken to that area to be mailed and given to the
Grievor who was performing that function that day, it was her responsibility to take the
package to Purolator as directed and set out in the Request To Ship form. He said it is up
to individual discretion as to the information to be put on the form as to reasons for
shipment but all sections of the form should be filled out for the clerk. When he received
the report from Ms. Izatt on January 6, 1997 as well as a copy of Ms. Bloomfield's
memo, he instigated an investigation of the incident and talked to the Grievor about the
issue and the E mail (O.V.s) he received and reported his summary of that investigation
in his letter to the Grievor dated January 20th. His conclusion in that letter after reference
to the circumstances of the missed delivery of the package was that:
"7. In my many communications with you over the past
week, you have acknowledged that you made an error.
You indicated that you did not know why the shipment did
not go out.
8. There is no acceptable explanation for not shipping
out the package in the time specified. If for some reason
the package could not be shipped out on December 19th, it
should have been shipped on December 20th. There is no
acceptable reason for a package delivered to
Shipping/Receiving for shipment to sit in the department
for 18 days without being attended to, especially given the
crucial nature of this shipment.
Over the past 24 months, ! have documented continuous
incidents of work performance problems, carelessness,
unexcused absences, attendance concerns and punctuality
problems. On January 9, 1995, February 9, 1995, May 19,
1995, October 18, 1995 and July 8, 1996 you received
disciplinary letters documenting these problems. Every
effort has been made by the College to correct these
problems and improve your performance. This incident
however, only goes to demonstrate that these problems
continue to persist. This incident is clearly another
example of carelessness on your part. The result of this
incident however, may possibly jeopardize the College's
position with the Commission on Dental Accreditation and
the future success of one of the Colleges' most successful
programs.
As previously documented in letters to you, your sloppy
work habits and carelessness cannot be tolerated in an
environment which requires precision and timeliness. The
College has repeatedly offered you support and assistance
in overcoming these concerns. Unfortunately, the result is
not acceptable. Consequently, ! am recommending the
termination of your employment with Confederation
College effective immediately."
Mr. Blundon referred to the O.V. he received from Glen Lindberg on January 13th
on this issue who said that he did not remember seeing the box dropped off in Receiving,
that he was assigned the mail duties that day and that no RTS number had been issued.
By O.V. dated January 9th, Mr. Blundon set out specific questions to the Grievor
concerning the incident and who replied that the method of shipping was Purolator, the
parcel was placed on the counter in Receiving and shipped out on January 6th. She took
seven parcels to Purolator after hours on December 19th but did not include this parcel.
From December 16th to December 19th because of the absence of Glen, she was doing the
work of both receivers as well as mail duties and told him that:
"I also think ! went beyond what is expected on the 19th of
December when ! went to Purolator with the packages with
my own vehicle on my own time after 5:00 p.m. (closing
time). There was also the President's Christmas get
together that I told you I would not go because of all the
work that had to be done. ! would like to inform you ! do
not believe there is sufficient manpower in receiving and
mailroom when one of the receivers is ill or on vacation.
Assignments fall behind and the problem is compounded
each additional day there is only one person."
The Mail Procedure Policy was set out in 1993 which refers to the Request To
Ship form as follows:
"This form should be filled out, coded and signed before it
is sent to receiving with the goods being shipped out. A
special carrier may be requested and discussed with
receiving staff. Please contact receiving if you have any
questions regarding the shipment.
Note: The Request To Ship form provides both
shipping/receiving and purchasing with information that is
very important in handling the shipments as well as the
payment of freight invoices. The completion of these
forms will also reduce the time spent on tracing the
whereabouts of a shipment."
This policy was implemented on December 6, 1993 which included the mailroom
schedule, ANC courier schedule and other directions. Mr. Blundon said the Grievor did
not give him any reason why this package was not sent on December 19th and in their
discussions admitted making an error in that this shipment was missed.
Mr. Blundon knew that the Grievor had been responsible for both the mail and
receiving functions in the absence of Lindberg on December 16th, 17th and 18th and on
the 19th, the Grievor was on receiving and Lindberg on the mail. A third employee in the
department had retired in early 1996 and had not been replaced. On December 20th, the
Grievor was responsible for the mail functions and Lindberg was on receiving. After
5:00 p.m. on December 19th, the Grievor personally delivered packages to Purolator but
the box to be sent to Ottawa remained on the receiving table. He said this box was of
normal size to hold five binders and weighed 25 pounds and would be noticeable in the
shipping area which is a busy place. He said the College was closing for a few weeks so
there was an urgency to have all the material processed properly and that package should
have been delivered and not have been left on the table. He said he had instructed the
employees that everything important was to have been completed and processed before
the holidays. If they knew the package was left on the table on December 20th, it should
have been sent out as it was not hidden and could have been seen. It is the expectation in
shipping that anything left over from the day before that the employee responsible for
shipping the next day would deal with it and that communications should be made with
the other employee.
Mr. Blundon said that this box was found on the receiving table on January 6th
and there was nothing to suggest that it had been placed elsewhere in the area. There is
no suggestion that it was deliberately misplaced by the Grievor or anyone else. It was his
understanding that while Ms. Bloomfield did not put specific instructions on the Request
To Ship Form, she had given verbal instructions to the Grievor that the deadline for the
receipt of the package was December 31st and that it had to go out that day. He was
referred to the RTS completed by Burak dated December 19, 1996 in which it was
indicated on the form that "I need this guaranteed next day delivery" and that the parcel
was shipped along with the other packages taken by the Grievor to Purolator. She told
Mr. Blundon that she had made an error and had not taken Ms. Bloomfield's package.
As that box was still on the table on December 20th, he would have expected that
Lindberg would have noticed the package and shipped it but referred to Lindberg's O.V.
in which he said that he had not seen it that day but referred to Lindberg's O.V. in which
he said that he had not seen the box that day. Mr. Blundon said it was the Grievor's
responsibility to advise Lindberg of the importance to send out the box which was left
over from the previous day or to take care of it herself. This was the only package left in
the shipping area before the Christmas break.
It was Mr. Blunden' s opinion that the key in the situation was the conversation
between Ms. Bloomfield and the Griever who was told about the priority in the delivery
of the package which was probably the most important of the packages for which the
Griever was responsible that day. She did take other parcels to Purolator after her shift
that day and there is no reason for her not to have taken that box as well. The Griever
told him that she had made an error and he concluded that while it was not done on
purpose, the Griever was careless. He said the College closed at 3:00 p.m. on December
20th but all of the operations had to be completed before employees left and it was up to
the managers to make sure those activities had been completed. He was in the
department at 3:30 p.m. and said the Griever had taken excess mail to the post office. He
did not recall observing the table in the shipping department that day but said the
employees were required to process the material before they left and were to
communicate and work together. He said Lindberg would have been equally responsible
if he had been aware of the parcel. He said the Griever however, received the box from
Ms. Bloomfield and it was her responsibility to ship it as required on December 19th.
The Griever testified that on the week efDecember 19th, she had performed all of
the shipping and receiving duties and some of the mail duties while Lindberg was absent
for three days with some help to distribute the mail by students but said it was very busy
at that time. On December 19th, she was responsible for shipping and receiving while
Lindberg did the mail which was typical of their division of functions. She agreed that
she received the package to be delivered to the Dental Committee on December 19th from
Ms. Bloomfield. She said there were a few parcels remaining from the previous day
which had not been shipped but were packaged and sent out that day. The RTS forms are
important to the department to indicate what is required for the shipments and are used
for any packages going out of the department. She relied on the information in the RTS
form. She noticed after Purolator had picked up other packages at 3:00 p.m. that the
Burak package had not gone and took it as well as a group of packages to Purolator after
5:00 p.m. that day but did not take the box for Ottawa to which she said she had not given
any thought. She did not recall Ms. Bloomfield telling her that the package had to be sent
right away, the gist of their conversation was to how the parcel would get there and that
courier was the best way. She said that Ms. Bloomfield said nothing about a deadline and
that it had to go out that day but wanted to know that it got to Ottawa and talked to her
about the safest way to get it there.
The following day, she was involved with mail duties and did not give any
thought to that box. As December 20th was a shortened work day and everything had to
be released by 3:00 p.m., she was very busy with the mail and had nothing to do with the
packages on the counter. Mr. Lindberg was involved with shipping and receiving that
day and she had no time to do anything other than mail and did not consider Ms.
Bloomfield's package. She was sorry that the parcel did not go out on that day but did
not know why it did not get shipped. Both she and Lindberg left early on December 20th
and at about 3:20 p.m. met Mr. Blundon in the hallway who shook her hand and wished
her a good holiday and they left. There was no reference to the box on the counter where
she had put it the day before. She said it slipped her mind and did not know why she did
not take it to Purolator and did not understand why it was left and had apologized.
The Grievor said it was an accident and was carelessness but it was not deliberate
that the package was left on the counter and not shipped. She said that she did not blame
Mr. Lindberg and that it was her responsibility to ship that parcel which would have
taken her about ten minutes but did not think of it on December 19th or on December 20th
when she was involved with mail duties. The Grievor said that she did not know why the
parcel did not go out on time and admitted her error many times. She said she always has
taken responsibility for her actions and was upset and embarrassed that this package was
missed and apologized to Ms. Bloomfield on January 6th. She did not doubt what Ms.
Bloomfield put in her memo of January 14th about that incident.
The submission of the College concerning this incident is that Ms. Bloomfield's
version of the incident should be accepted in that she delivered the parcel to the Grievor
on December 19th for delivery that day. It was the Grievor's responsibility to have sent
the parcel that day or it could have gone on the following day to meet the deadline but it
was left on the table. The Grievor accepted responsibility for the parcel which was not
sent that day as required by courier as expected by Ms. Bloomfield who was adamant as
to what she told the Grievor on December 19th. The Grievor had no explanation for this
omission in her responsibility and exhibited carelessness in the performance of her
regular duties which justified the termination of her employment with reference to the
application of the progressive discipline applicable to the Grievor by the College in
dealing with her employment record which we have set out below. It is the College's
position that the effect of the Grievor's prior record and the seriousness of the
culminating incident justified its disciplinary action in imposing the penalty of discharge.
The submission of the Union concerning this incident is that the Grievor had as
part of her duties, processed mail without complaint of errors and no one told the Grievor
of the importance of the package to be delivered on December 19th. MS. Bloomfield was
concerned only with the safest method to send the package and no specific instructions to
that effect were put on the RTS. The delay in delivery of the package did not lead to any
consequence to the College as the material was accepted by the Dental College on
January 6th. The Grievor was working in shipping on December 19th when the package
was delivered to that area but was assigned to mail duties on mail the next day when her
co-worker took the shipping duties yet he was not fixed with responsibility for the failure
to send out the parcel which had been placed on the receiving table where it was found
when they returned to work on January 6th. It was a big carton which would be difficult
to ignore when placed on that table. There was no history that the Grievor failed to send
parcels or to mishandle mail delivered to the area and submitted there was no evidence of
carelessness of the Grievor in handling this package. The Grievor took seven other
packages to the Purolator office after her shift on December 19th but missed this box but
not by any misconduct on her part as there was no reason for her to purposely ignore the
parcel. The Grievor apologized for her error because she felt badly that the parcel had
not gone out on time and accepted responsibility but the supervisory emphasis in the area
is on teamwork and others in the department were working in that area and could have
noticed the parcel on the receiving table on December 20th which could have then been
sent before the College closed at 3:00 p.m. The Grievor was very busy with mail duties
on December 20th and did not consider this parcel. It is its position that the incident was
exaggerated by the College which did not establish cause to take disciplinary action
against the Grievor as a result.
Ms. Izatt testified clearly as to the importance of the material to be sent to the
Dental College for accreditation of the program and the difficulties she had in the
preparation of that material compounded by a denial of an extension of time to meet the
demands of the Committee. The importance of that procedure to the College in
maintaining the popular Dental Assistant Program at the College is obvious. The
evidence is that the deadline for the College to submit that material was December 31st.
The College closed for Christmas holidays on December 20th SO that the material had to
be sent by the College by that date. Ms. Bloomfield was instructed and did personally
deliver the parcel containing five binders to the Grievor at the shipping/receiving area in
the early afternoon of December 19th. An RTS was prepared, signed by Ms. Bloomfield
on which the Grievor indicated the carrier as Purolator. There were no specific
instructions as to the urgency for the delivery on that document which was contrasted to
other RTS which did contain such explicit instructions where required. It is the policy of
the College that these shipping documents are important in processing documents and
must be carefully completed. The Grievor maintained that they talked only of security of
the package while Ms. Bloomfield testified that the package was to be sent to the Dental
Accreditation Commission by the fastest as well as safest method of delivery.
Having carefully assessed the testimony of these witnesses, the Board finds on the
balance of probabilities that the Grievor was told by Ms. Bloomfield that the shipment of
this parcel was urgent. The Grievor could not recall the conversation with any clarity
other than a reference to the most reliable method of shipping which she commented
would be Purolator. On the weight of the evidence, however, it is our view that she was
also told directly by Ms. Bloomfield that the parcel had to be sent that day or right away.
The Grievor either forgot the instruction or which apparently did not register with her
because she was so busy in the area at that time. The Grievor did not have any
explanation for her oversight and admitted her carelessness and responsibility for the
failure to have that parcel shipped on that day required which was part of her regular
duties as a shipper on December 19th. The lack of specific instructions written on the
RTS attached to the parcel as required is a factor in mitigation of the incident but it is
noted that the Grievor wrote on the RTS when she received the parcel indicating the
courier to be Purolator which but should have been sufficient to remind her that the
parcel was to be shipped by that method that day. There is no logical reason why she did
not take that package together with the other parcels which she did take to Purolator after
her shift. Nonetheless, this package was placed on the receiving table and it was missed
and was not sent that day.
Having viewed the shipping area, it is difficult for the Board accept that a parcel
of this size sitting on the receiving table outside of the shipper's office would not have
been noticed by the end of the shift on December 19th or indeed on December 20th before
the area was closed. The President of the College had directed that the employees could
leave early on December 20th at 3:00 p.m. but it was on the understanding that their
duties were to be completed before leaving. Yet this box, remained on the receiving table
and was not shipped as directed on the RTS. That form did not indicate that the shipment
was urgent but we are satisfied that that was the message which Ms. Bloomfield gave to
the Grievor directly in their conversation and in any event, it was the Grievor's
responsibility as a shipper on December 19th to send out the parcels which were in the
shipping/receiving area for delivery.
There was no excuse to delay the shipment of this package which the Grievor at
least knew according to her version of the conversation, that its security was important
and therefore the most secure method of shipment was to be undertaken which the
Grievor indicated to Ms. Bloomfield was Purolator. Why that conversation did not
trigger her immediate attention to the shipment of that box cannot be explained. That
must lead to the Board's conclusion that the Grievor was careless in the conduct of her
regular duties for which the College could be justifiably concerned and had therefore
cause to take disciplinary action against her as a result. Fortunately, there was no adverse
consequence to the College by the failure to ship the parcel until January 6th as the
Commission accepted the documents after the deadline which result moderates the effect
of the Grievor's involvement in this incident. But neither this fact nor the RTS as
completed without specificity absolved the Grievor from her responsibilities as a
Shipping and Receiving Clerk to deal with the package which she knew or ought to have
known that it contained important material which had an urgency for delivery to the
Commission on December 19th. On that date, she was responsible for the shipping area
and while there were others in the area including her co-worker in shipping the following
day and it appears that no real check was made of the area by the employees before
leaving the College for the Christmas break, it remains that it was the Grievor's
responsibility on December 19th when the parcel was hand-delivered to her by Ms.
Bloomfield with specific instructions to be carried out on that date to have made sure of
its processing for delivery which was part of her j ob duties and responsibilities on that
day for which omission she must be held totally responsible for her negligent
performance of those duties.
Having found therefore that the College did have cause to take disciplinary action
against the Grievor as a result of the incident on December 19, 1996, it is necessary to
consider whether the College was justified in discharging the Grievor from its
employment or whether that penalty imposed should be amended by the Board. On those
issues, the evidence of the Grievor's employment history and record of discipline dealt
with at length by the parties at the hearings must be considered by the Board in its
determination of these issues.
It is the position of the College that while the Grievor's careless work
performance on December 19th was justification for termination of her Grievor's
employment, it is but a further incident of many since her employment commenced
which demonstrates her unreliability through previous occasions of carelessness in her
work performance, poor attendance and punctuality as referred specifically in the
President's response to the grievance noted above. In that letter, reference was made to
the memorandum of
Mr. Blundon dated January 20, 1997 in which in regard to the other incidents of record,
Mr. Blundon wrote as follows:
"Over the past 24 months, I have documented continuous
incidents of work performance problems, carelessness,
unexcused absences, attendance concerns and punctuality
problems. On January 9, 1995, February 9, 1995, May 19,
1995, October 18, 1995 and July 8, 1996 you received
disciplinary letters documenting these problems. Every
effort has been made by the College to correct these
problems and improve your performance. This incident
however, only goes to demonstrate that these problems
continue to persist. This incident is clearly another
example of carelessness on your part. The result of this
incident however, may possibly jeopardize the College's
position with the Commission on Dental Accreditation and
the future success of one of the College's most successful
programs.
As previously documented in letters to you, your sloppy
work habits and carelessness cannot be tolerated in an
environment which requires precision and timeliness. The
College has repeatedly offered you support and assistance
in overcoming these concerns. Unfortunately, the result is
not acceptable. Consequently, I am recommending the
termination of your employment with Confederation
College effective immediately."
The prior disciplinary record of the Grievor is comprised of the following
incidents: a written warning dated August 21, 1991 as to the Grievor's performance in
the operation of the Tool Crib issued by Mr. Bernosky, Chair, Industrial and Motive
Power Department in which the Grievor was then working. A written warning dated
January 9, 1995 issued by Mr. Blundon concerning the Grievor's unauthorized absences
and unacceptable lateness. A written warning issued by Mr. Blundon on February 9,
1995 as to inappropriate handling of the petty cash fund. A two-day suspension issued by
Mr. Blundon on May 19, 1995 as to unacceptable work performance. A five-day
suspension without pay issued by Mr. Blundon on October 18, 1995 relating to
"unauthorized absences from work, conducting personal business on College and a
general lack of respect for authority". This was subject of a grievance and the parties
subsequently agreed that a five-day suspension would remain on her record but without
loss of pay to the Grievor. A two-day suspension without pay was issued by Mr.
Blundon on July 8, 1996 concerning an improper receiving and misplacement of a VCR
from the shipping area "as another example of your repeated carelessness and sloppy
work habits". During the grievance procedure, the parties agreed to change this penalty
to a suspension without loss of pay. There were no further disciplinary penalties taken
against the Grievor to the date of her discharge on January 20, 1997.
While the Board received the evidence of the parties with regard to the
circumstances of each of these incidents which led to the disciplinary actions set out
above, these incidents as recorded are properly included in and form the disciplinary
record applicable to the Grievor's employment. This Board accepts that this constitutes
the Grievor's disciplinary record and as set out above, it cannot make any determination
as to just cause for such penalties. The College position is that this record together with
the other incidents indicating carelessness and unreliability regarding attendance
problems in her employment record establish a pattern of carelessness and unacceptable
performance that taken in total as well as the final incident and with the application of
progressive discipline supports her discharge from employment with the College. It was
noted that on each occasion, the Grievor was warned of further disciplinary action should
there be a recurrence of improper conduct "up to and including termination" and as well
references to the availability of the College's Employee Assistance Program.
The disciplinary notices remained on the Grievor's employment record and were
not removed through the application of Article 16.4 of the collective agreement which is:
"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 year. The removal
of such notice shall be at the discretion of the College.
Such discretion shall not be exercised unreasonably."
The Grievor did not request the removal of any of these disciplinary notices and therefore
the College was not requested to exercise its discretion to do so. No issue therefore arises
in that regard in this matter and the record of discipline prior to the Grievor's termination
stands as above set out.
Nonetheless, the Board may determine the weight to given to these incidents of
discipline and other references in the Grievor's personnel record hereafter referred to, in
its determination of the appropriateness of the penalty of discharge which includes an
examination of the Grievor's employment record most relevant of which are those
matters arising during the Grievor's employment in the Purchasing Department effective
September 8, 1992. The Grievor was hired on a full-time basis on October 24, 1988 as a
Clerk, Supply B in Industrial Motive Power Department and worked in the Tool Crib. As
noted above, there exists a written warning concerning the Grievor's performance in the
Tool Crib. This was followed by a memo from Mr. Bernosky to the Grievor in which he
indicated that he was encouraged by her performance and willingness to resolve the issue
and stated "I am prepared to withdraw my recommendation for a one-day suspension"
which was not in fact imposed. Mr. Bernosky prepared a performance appraisal of the
Grievor in August 1991 indicating a general satisfactory rating but with a comment as to
her negative attitude and issues to be resolved in her work performance which were
discussed with the Grievor. Subsequently, the Grievor applied for a job posting and was
successful for a transfer to Shipping/Receiving as a promotion. Had the problem areas
identified by Mr. Bernosky in his memos and discussions with the Grievor been
considered adversely significant for her future performance as an employee of the
College, it is unlikely in our view, that she would have been successful in the job posting
to which she applied and we must conclude that as a result of these discussions, the
Grievor had satisfied her supervisor as set out in Mr. Bernosky's memo dated October
9th'
We find that these two events and the passage of time removes any permanent
concern relating to those matters which occurred in the Industrial and Motive Power
Department. In the Grievor's performance review in June 1994, the Grievor was given
an acceptable review by Mr. Blundon which lends support to Mr. Bernosky's decision
that the Grievor had by October 1991 indicated her co-operation and willingness to deal
with the issues which had been raised at that time. While therefore, the written warning
issued in 1991 remains on the Grievor's disciplinary record, the Board finds that those
circumstances relating to the written warning is not material to the allegation of a pattern
of poor work performance and is not therefore given any weight by this Board.
The written warning issued by Mr. Blundon on January 9, 1995 refers to the
Grievor's absence for a family emergency on November 16th without prior authorization
for which 6.5 hours for unauthorized leave was deducted. Secondly, on November 25th,
5.5 hours was deducted for unauthorized leave when she attended a doctor's appointment
for her daughter and did not notify her supervisor that she would not be returning to
work. Eight hours were deducted for unauthorized leave on November 28th and was off
on sick leave until Monday, January 2nd but returned to work on January 3rd. On
December 30th, she had confirmed with her supervisor that she would return to work on
January 2nd but did not show as scheduled on that day for which she had no explanation
and did not object to the deduction from her pay of 8 hours. There was further discussion
of too many occurrences of latenesses and the Grievor was told that if "You are late, sick
or absent for any reason, you must phone me directly. I do not want you to leave a
message on my voice mail or with another staff member but expect you to contact me
personally. In addition, you were also advised to telephone Glen Lindberg." She was
also told that personal visits and telephone calls during work time must cease. Mr.
Blundon wrote that she had been absent due to illness for a total of 29.81 days in the
previous year and with the exception of the long-term absence, they have been for one or
two days duration coinciding with weekends. The Grievor's pay was deducted for a total
of 28 hours as a result of unauthorized absences from work and the memorandum was
issued as a written warning to the Grievor with reference to the EAP. Mr. Blundon said
the Grievor had indicated to him that she had problems with her family but he did not
know the details but agreed that she was upset and she was allowed the following day off.
Mr. Blundon said the Grievor should have discussed her reasons for leaving work with
her supervisor otherwise it was difficult to comprehend the entire scope of her problem
and even in an emergency, she said the Grievor should have let her supervisor know the
details and how long she would be absent from work. He learned the day after November
16th that the emergency concerned the Grievor's daughter and the Children's Aid Society.
Mr. Blundon also referred to 11 instances of lateness of 15 minutes to 1 hour in October
which were unauthorized and said that this was part of the total picture relating to her
absences and quality of work. Of the 29.81 days of her absences in 1994, 22 days were
involved in one long-term absence. He agreed that an employee is allowed 8 days of sick
time a year in accordance with the collective agreement but as a manager, he is
concerned in all aspects and the total absences of an employee. He said he was aware of
the Grievor's difficulties with her daughter but in that year, he was concerned with the
pattern of her absences.
The Grievor said she did not grieve this warning, that she had taken the time on
November 16th because it had been a bad day at school for her daughter and took two
vacation days as a result. She had difficulty remembering these circumstances but
confirmed she had been off 22 days on sick leave for which she had received benefits.
She was sure that she had tried to contact Mr. Blundon before she left College for the
family emergency but agreed that she did not tell him of the specific problem she had
with her daughter who needed help and was taken to the Children's Aid Society. She
was there for about half a day and did not return to work and did not call in that she
would not be returning that day which she agreed was an obligation. She was allowed
two vacation days by Mr. Blundon to deal with her problem. The Grievor said that at
each meeting she had with Mr. Blundon, access to the E.A.P. was mentioned but while
she attended once, she had concerns with the confidentiality of the Counsellor in the
Program and did not want to discuss her personal problems with someone she did not
know and would not continue with it. As well, she dealt with the Regional Family
Centre, her doctor and her mother as to these personal problems and was not comfortable
with the EAP.
On February 9, 1995, a written warning was issued by Mr. Blundon who was
concerned with the manner in which the Grievor handled the petty cash fund without an
acceptable explanation. This fund is used to pay C.O.D. invoices in Shipping and
Receiving with each Receiver responsible for $3,000.00 which funds are kept in a
separate cash box in a vault in the administration office. The Grievor could not explain
an overage on the cash and a third cash box was found in the Shipping and Receiving
area. The Grievor said she did not grieve the warning and did not know she could
disagree but with all her troubles did not think it was good to disagree with Mr. Blundon.
She said personal calls did not happen very often and mostly were from within the
College, her sister or her mother. She took responsibility for the things which she had
done and accepted the disciplinary notices and the deduction from her pay for the time
taken off but did not see that as punishment. She felt that she had been treated fairly.
The next incident of discipline was a two-day suspension issued by Mr. Blundon
on May 19, 1995 in which reference was made to the previous two written warnings
referred to above, a memo on February 10, 1995 concerning carelessness in the
processing of the Grievor's paperwork and a box of papers which she had placed in an
obscure area in the storage room which should have been processed but were hidden in
the back of the room. Mr. Blundon said the contents involved invoices which should
have been sent to accounting as well as packing slips and bills of lading which should
have been filed.
Mr. Blundon wrote:
"It would appear that these problems continue to persist.
To date, your work performance continues to be
unacceptable. Your sloppy work habits cannot be tolerated
in an environment which requires precision and timeliness.
Consequently, ! am suspending you without pay for two
days. The suspension will be effective May 24 and
25, 1995. If any incidents of the above nature occur in the
future, further disciplinary action will be taken up to and
including termination of your employment with the
College."
This followed his discovery of another box full of documents on May 3rd and on
May 5th, a plastic bag on her desk with similar contents. He indicated that the Grievor
was not following proper procedures, was careless and did not take responsibility for her
work and was hiding unfinished work. He discussed the letter of suspension with the
Grievor who admitted she had wrongly left the receiving area unattended but otherwise
had no response and the suspension was not grieved. The Grievor did not disagree that
she was not as responsible as she should with regard to the paperwork or that personal
calls should be made at work. Mr. Blundon said he did receive calls from outside of the
College for the Grievor from the school and sister who is a student at the College who
used the hallway next to the shipping and receiving area to enter the building and visited
with the Grievor. Mr. Blundon was concerned about the security in the area and
observed a number of personal visits with the Grievor. He said that everything in the
department is based on accuracy and there are ramifications of improper filing of
documents which was the subject of the suspension based on her careless work habits.
The Grievor admitted that she had not filed these documents but had hid the box
with an intention to file them later. She had no explanation and no excuse for that
material being found in the box or on her desk improperly filed. She said that she
probably realized that she was not doing her job said hid this material and understood Mr.
Blundon's frustration. She agreed that this was part of her job and that she knew what to
do but was careless in not completing her work. She did object to the reference to
personal visits and personal telephone calls which she said had not happened. She did
leave the area unattended to obtain coffee for 15 minutes which is not uncommon and
had asked Elna to watch the area and was not aware that she was not an authorized
person to remain in the area but had previously worked in the mailroom. She said it was
not easy to work for
Mr. Blundon and did not know of the Union and that she could challenge him and did not
think that anything she put in writing would get anywhere. The Grievor said she was
aware that work related problems could lead to a termination and that she had to do her
job well. Mr. Blundon referred again in the letter of suspension to the E.A.P. which for
the same reasons previously stated, she did not attend and did not tell Mr. Blundon
anything about it.
The next matter of discipline on record is a 5-day suspension issued by
Mr. Blundon on October 18, 1995 which on a subsequent agreement between the parties
was changed to a 5-day suspension without loss of pay. The incident involved was that
the Grievor left the College for a family emergency without previous authorization but
left a voice mail message that she would not be in on the following day. Mr. Blundon
wrote:
"Although I am sorry that you required time off from work
to deal with what you termed was very, very personal, the
fact remains that you did not contact me to request time off
nor did you provide me with an adequate reason for
leaving... I remind you again as in previous memos and
discussions that as your supervisor, the decision to grant
unexpected leave is mine and not yours. I do not need to
know all the details but certainly require reason..."
Four hours pay was deducted for unauthorized leave on Thursday, October 12th. In
addition, there was reference to personal visits and telephone calls at work.
Mr. Blunden testified that he was aware that the Griever had personal problems
but had not been given much detail and had been told that he was not privy to those
problems which he respected and knew those difficulties centered on her daughter in the
period from September 1994 to the end of 1995 and that this which was a difficult period
for the Grievor. Part of his concern however, was that the Grievor had not talked to him
directly and rather than sending an O.V. to him just left the department which is
consistent with the history of his problems with her and the operation of the department.
He had instructed her that for any absence, he had to be contacted before she left the
College. He also expected the Grievor to send an e-mail and have a discussion with him
on her return to the College.
The Griever referred to notes which she made about this time and indicated she
had returned from lunch at 12:55 p.m. and was then called by the school to pick up her
daughter, she tried to have her mother or sister or friends to do that but could not find
them. She said she had a discussion with Mr. Blundon before she left the College and
told him it was not his business, that he did not need to know the details. She said he is
not the easiest person to talk to and intimidates her but if he had said no, she would not
have gone. She did not feel comfortable telling him about her daughter's problem at
school and did not think he would be compassionate about it. She was very upset at the
time which caused her to attend at her doctor who told her that she did not have to work
the next day. She was at the family center with her daughter until 3:00 p.m. and then
went to the doctor. She left a voice mail with Ms. Sukko and called Mr. Blundon and left
a voice mail that she would not be in the next day because of a family emergency. She
accepted the 4 hour deduction of pay which to her was not punishment. She agreed that
her sister had been in her office to see her and agreed that that was wrong and had hoped
that no one would catch her but Mr. Blundon had stressed confidentiality and security of
the area and told her that her sister should not be in the office. She agreed that he had
spoken to her a number of times about that issue but not after October 17th as she told her
sister not to come into the shipping and receiving area.
The Grievor acknowledged the settlement reached by the parties that the
suspension remained on her record but she was paid for the time and knew that it could
be removed after 12 months. As well, she knew of the warning of possible termination
and that this penalty reinforced it.
The penultimate penalty was imposed on July 8, 1996, a two-day suspension
without pay subsequently changed by the agreement of the parties to a two-day
suspension without loss of pay. The incident arose as a result of a disappearance of a
VCR from the Shipping/Receiving area which was attributed to the Grievor's
carelessness when she had received on June 5th four VrRs but tagged only three for
inventory and failed to notice that one was missing. That VCR was found behind a skid
of boxes in the receiving area on July 3rd. Mr. Blundon said this incident involved the
shipment of expensive VCRs left unattended on the loading dock and that the Grievor did
the tagging, did not notice the missing VCR. He along with the other two searched the
area when it was reported missing but did not find it until it was mysteriously appeared
on July 3rd found in an unopened carton. He imposed discipline because of her
carelessness and sloppy work habits.
The Grievor said that the goods had been left on the dock unattended but Glen
was in Receiving and assumed he would bring them in although she acknowledged it was
her responsibility to bring in the goods to the receiving area but she had assumed others
would do it. She said Mr. Blundon had told her of the importance of timely processing
and knew that there had been thefts of goods and that shipments should not be left
unattended. Even though the VCR was found, she accepted the penalty which was
imposed as indicated in the agreement between the parties:
"4. This agreement clarifies that the discipline is as a
result of the Grievor's failure to notice that the fourth VCR
was missing when tagging the other three VCRs on
June 6, 1996."
It was agreed that the suspension was converted to a two-day suspension with pay, that
the Grievor would be reimbursed for her loss and she could request removal of the notice
in 12 months from the date of the agreement which was entered into on November 25,
1996. There were no further incidents resulting in any disciplinary action against the
Grievor until her discharge in January 1997.
There are numbers of e-mail messages (O.V.'s) recorded and filed in these
proceedings given and received by Mr. Blundon and the Grievor. These were submitted
to support the College's position that the Griever's attendance, reliability, knowledge and
accuracy in her performance of her duties was not acceptable and indicated a pattern of
poor work performance which was considered in the disciplinary penalty imposed against
the Grievor. For the purposes of expediency, the Board will not specifically deal with or
set out each of these incidents of record relating to these matters although it is noted that
all of the evidence of the parties including the O.V.'s have been considered. As to that
aspect of the Grievor's employment record, the Employer referred to 13 occasions of
lateness in the period 1993 to 1996 for most of which the Grievor either made up the time
which was approved as in O.V. 94-10-20, a reminder to be on time, and at O.V.
94-10-21, an approved lunchhour change. These incidents were combined with O.V.
95-02-66 concerning lateness whereby Mr. Blundon required the Grievor beginning
Monday, February 20th to send an O.V. immediately upon her arrival at the College
confirming her arrival and told that any time after 8:00 a.m. would be docked from her
pay. The Grievor was further instructed that when she was ill as on February 15th and
16th, a voice message was not satisfactory that she had to talk to Mr. Blundon directly.
In O.V. 95-03-03, the Griever told Mr. Blunden that "After consulting with the
Union President, I understand that my work day does not begin until 8:00 a.m. and that
my whereabouts before that are not your concern as long as I am ready to work at 8:00
a.m..." and further she noted that:
"I would also like you to know for the record that I have
had a very rough last six months personally as well as
professionally. It is hard enough to deal with one bad
situation but when both situations are tough it is damn hard.
When my personal life was better, I could handle all the
stresses at work but I am finding it hard to function
normally at any time when I am worried and stressed at
work all day. It's like my life is falling apart around me. I
am feeling devastated and things seem to get worse every
day."
This was considered by Mr. Blundon as insubordinate conduct and stated that it
was the Grievor's lateness that he was trying to resolve. He said that he did not change
that policy and the Grievor did continue to check in. It was not his intent to know where
she was before she started work.
On October 7, 1994, Mr. Blundon told the Grievor that his authorization was
required for her to leave early or return late to work which preceded the written warning
concerning the Grievor's attendance referred to above issued in January 1995. The
Grievor said that she tried to make her record better and said that Mr. Blundon did
accommodate her in this area as he would with anyone else. In O.V. 96-03-06, a request
was made by the Grievor to use a coffee break to meet a 5:00 p.m. for her daughter which
was approved and indicated her advance request to Mr. Blundon. The O.V.'s in this
period indicate that for incidents of lateness or absences from work, the Grievor's reasons
were given and time made up such as in O.V. 96-11-08 when a swing bridge was up on
the road she travels to the College which caused her lateness for work. That is an unusual
circumstance which does not require comment and does not adversely reflect on the
Grievor's attitude nor was it reasonable to record that incident as a matter of
accountability and in our view, that unusual and trivial event should not have been
included in the narrative of the Grievor's employment. As it was, it indicates the
closeness of the supervisory attitude of Mr. Blundon concerning the Grievor who was
constantly required in these years to comply with his strict terms of observance of his
supervisory policies in addition to that of the College.
We find that these types of incidental instances outside of the disciplinary matters
applicable to the Grievor are worthy of little or no weight in our assessment of the
deficiencies of the Grievor's work performance alleged by the College apart from the
disciplinary measures taken. We include in that generalization the O.V.'s in 1993/95
(Exhibit 6) which indicate requests for time outside of the regular hours of the Grievor
for various reasons and approved with time made up by the Grievor. The Board does not
accept any adverse inferences from the contents of those messages as to the Grievor's
attendance or work performance. The College acknowledges that employees do have
absences from work during the year for various individual concerns of health or
otherwise and as well, Mr. Blundon acknowledged that employees in his department at
least, were allowed one hour of absence for medical appointments.
While in the period of review, the Grievor had according to the College's count,
33 occasions of change of time of work, lateness or absences which was claimed as
excess of the normal or average, we note that most of these incidents of lateness or
absences were approved and the time either made up or docked from the Grievor's pay so
that the College was not financially disadvantaged. Nonetheless, an employee's
continual lateness or absence from work does have an effect on the operational aspects of
a small department and is a matter of concern for the manager who is responsible to
conduct and control the functions of his department which are, in Mr. Blundon' s case,
vital in the performance of his job. Thus, these messages over this period of time indicate
graphically the abundance of control, reaction to derivations from the departmental
policies as applied by
Mr. Blundon and the explanations for the Grievor's conduct with regard to her attendance
problems largely of which surfaced in 1995 when it is acknowledged that she had
substantial family difficulties.
In that period, Mr. Blundon knew or ought to have known from the Grievor's
remarks to him and through her requests for time off that the Grievor was experiencing
grave personal difficulties and in that regard, we find that his continual request or
expectation of personal details was not appropriate nor did require a complete
explanation of the Grievor when she advised her manager that she was leaving work for a
family emergency. To require an employee under those circumstances which had
continued for some time to not only advise the manager of her requirement to leave work
immediately but as well, the details of the reasons for leaving and to request prior
authorization for so doing is beyond a sense of reasonableness in such circumstances.
That does not absolve the Grievor's responsibility to attend work on time and with
reasonable regularity to perform the tasks to which she had been assigned in her
department. Obviously, from the record, the Grievor's attendance which include
punctuality was a concern and could not be ignored by Mr. Blundon who as indicated,
generally accommodated the Grievor's requests in these areas.
There are other O.V.'s on file from 1994 concerning the Grievor's work
performance such as a reminder of confirmation of shipments, her failure to record actual
goods received, O.V. 94-09-15 is a reproof by Mr. Blundon concerning her improper use
of the petty cash fund which he considered to be a serious issue where there was
reimbursement from the fund to an employee for a bill charged by Visa, improper
reconciliations and accounting for quantities received and use of incorrect codes which as
indicated above, resulted in a written warning in February 1995. Subsequently, there
were items recorded such as leaving a cheque in the vault unattended, letters not secured,
hiding a box of documents which proceeded the two day's suspension. Following which,
reference was made in O.V. 95-02-16 to the lack of the Grievor's authority to allow
another employee to use the fax machine or photocopier which request Mr. Blundon said
should have been referred to him. This direction as much as the Grievor's mistakes
recording code numbers are minor matters occurring in the ordinary course of business
which can be corrected by directives but without censure and which except for the
departmental procedure of O.V.'s would not likely generally form part of an employment
record but rather it would be considered as part of normal supervisory functions in a
shipping and receiving area.
Employees are subject to supervisory controls and direction and may be expected
to react positively thereto in the performance of their regular duties but not all mistakes
or misadventures can be swept into the context of poor work performance. These
comments are referable to what we believe was a minor issue concerning the Grievor's
purchase of safety shoes and the provision of an original receipt demanded by Mr.
Blundon when the Grievor had provided a duplicate receipt for her purchase which was
rejected by
Mr. Blundon and a number of O.V.'s were exchanged even though it was clear that the
Grievor had spent the money and had purchased her shoes as required. The fact that this
incident was recorded and referred to as a complaint shows only, in our view, an
overbearing supervisory insistence on insubstantial detail which was at least adverse to
the aspect of teamwork indicated to be important in this department. This was a
supervisory request without merit which was pushed beyond reason whereby Mr.
Blundon hounded the Grievor to obtain the original receipt but for what purpose when a
proper copy had been produced and he knew the shoes had been purchased by the
Grievor yet this remained a matter of record and of considerable evidence which reflected
a management attitude of unnecessary control and not as proposed, a deficiency in the
Grievor's work performance.
Three performance appraisals were submitted. Firstly, that prepared by
Mr. Bernosky to which we have reference above while the Grievor was a Tool Crib
Operator. Secondly, on June 29, 1994 prepared by Mr. Blundon in which there is
reference to petty cash problems and follow up inquiries with an indication that more
teamwork was required and the Grievor should be a pro-active team member. The next
evaluation was in June 1995 but included a recommendation for permanent status for the
Griever and the notes of Mr. Blunden indicate that he recognized that she experienced a
number of problems throughout the year and had not achieved the goals proposed in the
last performance. He referred to her careless work habits, unauthorized leaves and the
inability to process routine paperwork "as result efthese on-going problems". He
indicated he had set up a weekly review to assist the Griever with the goal to be a pro-
active team member, to eliminate personal visits and phone calls in her work area and
ensure proper procedures are followed and that her work station is clean and tidy and to
provide appropriate attendance. The Griever did not recall any specific discussions on
these reports but which she accepted.
Mr. Blunden, the Manager of Purchasing since 1971, is the direct supervisor of
the shipping and receiving area in which both the Grievor and Glen Lindberg hold the
same classification of Clerk, Supply. He said that each of them is aware how to handle
the functions in that department which are the responsibility of both. The review of the
Grievor's employment in this department apart from those incidents referred to above are
negative observations about an improper CANPAR shipment in June 1994 which he said
the problem should not have taken over two months to resolve as it had. On April 28th,
he had noted that the Grievor had signed for shipment but with a shortage of cartons not
received for which she was reminded that it was important to check shipments for
confirmation of delivery. A further shipment in May was received incorrectly by the
Grievor when she signed for 12 when 25 items were shipped which caused the
Accounting Department extra work in sorting out the difference and the proper procedure
was again indicated to her. In September 1994, he admonished the Grievor about
improper use of the petty cash fund which was not for the use of convenience of staff but
to fund for C.O.D. purchases. The Grievor indicated it would not reoccur. Further
references were made to improper receiving by the Grievor in September and October
1994 and
Mr. Blundon said he talked to the Grievor about careless receiving which created
problems for Accounting as well as the Purchasing Department and that accuracy was
required. In September of that year, there was a problem as to delivery of drill bits to be
returned and replaced which took a number of months to complete without explanation
by the Grievor. This created work for other departments while the drills had remained in
receiving without replacements. The Grievor's response was that it was Glen's problem
and resolved by him but to Mr. Blundon, the Grievor should have taken responsibility for
it as she received the request for the exchange.
Mr. Blundon referred to errors on recording of cheques and in improper coding by
the Grievor which was brought to her attention and told to be careful in these documents.
This concern was reflected in a memo to the Grievor dated February 10, 1995 concerning
evidence of her carelessness in the processing of her paperwork. It was recorded in part
that:
"On Tuesday, February 7, 1995, they found a box of
papers you had placed in an obscure area in the cardboard
box storage room. These papers belonged in the main work
area and should have been processed or filed weeks earlier.
Some of these papers date back as far as August 1994..."
Mr. Blundon reviewed this incident with the Grievor as it was his concern that some of
the files in the box may not have been paid as promptly as they should as they had not
been processed and she was advised of the urgency of her paperwork. In addition, he
found a cheque to the College in the vault for returning merchandise which should have
gone to Accounting. There was no explanation, other than the Grievor had forgotten it.
In August, reference was made to documents which had not been filed properly or
submitted to Accounting as required which had he not noticed, they would have been
lost. He again discussed this incident with the Grievor as to the seriousness of her errors
and the effect in the system of such errors. He said the Grievor did not show any
reaction.
There were several matters in 1995 which related to the Griever's work
performance and that Mr. Bloudon had spoken to her about the correct procedures and
her errors concerning such things as the Impost Cheque System, the use of the fax
machine or photocopier for personal use. In that regard and as mentioned above, in O.V.
95-02-16, Mr. Blundon told the Grievor that she did not have authority to approve the use
of College time or College equipment for personal use and that he had spoken to the
bookstore manager "about the seriousness of the use of our fax machine for personal use
on Wednesday, February 15, 1995". Other matters referred to the improper coding,
excessive cost of shipping a parcel from the bookstore, a mistake in receiving goods
without stamping and initialing the invoice and sending it to Accounting. He said the
Grievor told him that she had made a mistake and corrected it. It is the policy in shipping
and receiving as a secure area to keep all doors locked at night which was the subject of
direction to both employees in O.V. 96-05-14. In 1996, there were further references to
improper recording of cheques and coding of accounts which were brought to the
Grievor's attention and who agreed to correct her error.
Following the Griever's termination, Mr. Blunden testified that a bundle of
documents were found at the Grievor's desk which should have been distributed by the
Grievor. He forwarded the invoices to the Accounting Department and other persons
were advised that the department had these packages and invoices, the description of
which are listed as 113 items, seven of which were not processed for payment to
Accounting and the others were not filed or forwarded to the proper locations.
Reference was also made to a number of requests by the Griever for time off and
for various appointments throughout 1996 and specifically a request for time to take an
afternoon coffee break at the end of the day as she had an evening j ob and had been asked
to come in closer to 5:00 p.m. This change was approved by Mr. Blundon but noted as
being an incident adverse in interest to her employment with the College. Mr. Blundon
testified that he keeps track of the employees' time and that the policy is that at least an
hour gratis for each occasion of appointments is allowed but over that, the time had to be
made up by the employee. He said he did the same for all of the employees in the
department but noted that the Grievor's request to leave early for a part-time j ob took
more precedence in his opinion than her regular job but allowed her request. Mr.
Blundon testified that he was required to give a lot of attention in the supervision of the
Grievor as to her work performance. As a result of all these matters including the
culminating incident in December 1996, he had recommended the termination of her
employment as set out in his memo to the Grievor dated January 20, 1997.
In cross-examination, Mr. Blunden said that he knew the Griever had turmoil in
her family in the period 1994/95 and said that he tried to assist her with the College
services and to accommodate her requests for time off as he would with any other
employee and this was a big issue with her. He was however, concerned with the
necessity of all of the work time she lost as he must ensure that the department operates
efficiently and the Grievor had more requests for time off than any other employee. It
was his policy that employees must contact him first before leaving work when
emergencies arose and he expected some reason for the request but not the details. He
said that he could offer assistance to the employee if he knew the problem however he
knew that the Grievor did have family problems but said he did not have discussions
about those circumstances with her. He had suggested the use of the E.A.P. as another
avenue of assistance for her. He said it was not his intent to cause her to believe that
what she was doing was wrong but all the time had to be accounted for. He dealt with
each incident individually and with the many requests by the Grievor for the use of coffee
breaks to take time off and other adjustments to her schedule for appointments. He said
he tried to respond the best he could to the Grievor's personal problems and to be
sympathetic but had to balance this with his duties as a manager. The reference in the file
of the appointments she attended was to establish the maintenance of time off
requirements for the Grievor and in comparison with other employees, he said the
Grievor's time off was excessive although it is assumed that her appointments were
legitimate. These requests for changes and time off were part of the whole picture of the
Grievor's employment. It was suggested that Mr. Blundon had not "cut her slack" in his
supervision of the Grievor. He responded that it was her performance and the whole
picture which affected the situation including not having been made aware in advance of
the requests for time off which had created difficult problems. It was his view that the
documented approach was the best way to deal with these matters and he relied on the
reports as to the best indication of these requirements. Mr. Blundon said that the items
which were found on her desk after her termination had no relation to whether her
computer had not been working for a couple of days prior to the Christmas break. He
said that the accounts could have been processed and the packing slips filed and there
was no explanation why this had not properly been completed.
The Grievor became employed about three weeks after her termination from the
College at Mahon Electric performing a variety of tasks both in the office and shop and
has no other source of income. In addition to her testimony concerning the Dental
Accreditation parcel incident in December, the Grievor responded with regard to other
incidents referred to by the College in this action in both direct and extensive cross-
examination. The essence of her defense is that while acknowledging certain mistakes in
the performance of her duties in the shipping and receiving area in the Purchasing
Department, none were intentional and always took responsibility for her actions.
Furthermore, the Grievor testified as to her difficult family problems during the latter part
of 1994 through 1995 involving her 10 year old daughter and her husband from whom
she was separated which caused her great distress and required time from her work to
attend at Children's Aid and doctor's appointments which contributed to her record of
lateness and absences in this period. She took sick leave for 22 days from November
1994 as a result of these problems.
As set out in the letter of Dr. Munro of the Confederation College Health Centre,
the Grievor attended with the doctor on 8 occasions from October 12, 1993 through to
January 7, 1997. The Health Centre is associated with the E.A.P. which procedure she
used once but did not continue as she was not comfortable with the confidentiality of that
program. She was also attending her doctor at this time. The Grievor acknowledged that
she had problems with attendance and punctuality during the period of her stress and after
receiving discipline tried to improve but also made up her time. She also acknowledged
that at times she had been careless in her work but said her work improved after her
daughter left to live with her father.
Other than the Grievor's response and description of the circumstances which led
to the disciplinary penalties imposed against her set out above, the Grievor said that in the
summer of 1995, she purchased safety shoes and is normal each year but had difficulty
with their fit and had to take them back to the store for which she needed a receipt. She
provided a copy of the receipt to Mr. Blundon rather than the original which she
subsequently obtained for him when her shoes were replaced which she did annually. As
to the use of the fax in Shipping, Ms. Bargen, an employee of the bookstore asked to fax
a letter to a local number as her machine was not working which was done during lunch
break. The Griever said on October 12, 1995 that before she left the College to deal with
a family emergency, she spoke to Mr. Blundon who she said was shouting at her about
her reason for leaving. She told him that it was none of his business. She said that if she
had been told that she could not leave, she would have stayed at work but Mr. Blundon
told her that he would deal with her later and she left to attend at the Clinic with her
daughter. She left a voice message at 6:30 p.m. at the College that she would not be at
work on Friday as she had been advised to take some time off but did not speak to Mr.
Blundon directly. She said Mr. Blundon had asked her if there was something he should
know, the Grievor did not tell him all the details but that she had broken up with her
husband and had problems with her daughter with a reference to the Lakehead Family
Centre.
The Griever admitted that she had visited with her sister in the Shipping Office.
Her sister was a student at the College and she hadn't expected this visit. On another
occasion, her sister was walking in the door of the College next to the Shipping Dock
when there was a bit of conversation between them while the Grievor stood on the dock.
After her discipline for these incidents, they were not repeated but she told Mr. Blundon
that: "I haven't done it for months and then as soon as ! do, ! get busted". She was
advised of further repercussions if her behaviour with personal visits and telephone calls
on College time did not cease. She said that errors in transposing numbers on the cheque
register and on the C.O.D.s which came in did occur and were corrected before they were
sent to Accounting. She said there were always some errors in these documents, not all
of which were hers. In 1994, the record of the College indicating her absence of 29.81
days includes 22 days of sick leave from November 29th, 1994 to January 3, 1995. She
did not take issue with Mr. Blundon's description that the other seven had been for one or
two days in duration.
The Grievor said that the description of the documents found in her desk after her
termination were familiar, that they are entered in the computer and filed after firstly
being checked by Mr. Blundon who returns them for filing. She said that all of these
papers would have been entered but she was busy in the Christmas period, her computer
was down for a few days and did not get around to sending them to Mr. Blundon or filing
them but had no other explanation for these packaging slips and invoices or the other
documents found on her desk which she did not check off and did not recall much of it.
She said that she took responsibility for the documents as they were found at her desk and
agreed that payment should have been made for the invoices as soon as possible.
While she did have some difficulties with Mr. Blundon as expressed in the
various O.V.' s, her evidence is that generally, he accommodated her and she accepted the
make-up time and the deduction from her pay for time lost when she was either late or
required time away from work. She admitted being irresponsible for not returning to
work on January 2, 1995 which was in accordance with her telephone conversation with
Mr. Blundon on December 30th and could not explain her absence that day and had no
dispute with the deduction of eight hours' pay for the day. She understood that there
could have been more discipline as a result and agreed that Mr. Blundon was lenient with
her in the circumstance. She also agreed that Mr. Blundon had been helpful with her
requests to use break times for other purposes and that he did the same for other
employees.
It is of interest to the Board that while Mr. Blundon stressed the significance of
teamwork which he expected in the Shipping Receiving area that as earlier in October
1994, Mr. Lindberg who works in the same area and holds the same classification as the
Grievor, sent an O.V. to the Office Supervisor about the Grievor making up lost time
from the day before when she left concerning an incident with her daughter and set out
details of his record as to what time she took and had made up. This type of
communication or lack thereof between these employees in our view has a negative
reflection on their working relationship in the department at that time and which although
we do not have any direct testimony from Mr. Lindberg, appeared to continue through to
the circumstances of the final incident involving the Grievor in December 1996. We note
in this regard as well that the Grievor was instructed by Mr. Blundon to send an O.V. to
him when she arrived at work to which she objected as her Union Representative told her
that she did not have to provide an O.V. before her 8:00 a.m. start but to send an O.V. at
8:00 a.m. to Mr. Blundon which she did even if she was at work earlier than the start
time. She disagreed with this direction to send an O.V. to him before 8:00 a.m. and did
not know if Mr. Lindberg was also required to send a similar O.V. but that would not
change her views on this matter. She did not agree that this was insubordination and felt
that she did not have to comply with that direction as long as she was at work at 8:00 a.m.
In our opinion, this incident also was not consistent with the teamwork approach and was
an excessive supervisory reaction to the circumstances of the Grievor at that time.
The Grievor said with particular regard to her punctuality, that Mr. Blundon
treated her the same as everyone else in the department but did not cut her any additional
slack and did not show her any compassion. She agreed that she had for a while frequent
incidents of lateness and absences from work and knew of the importance of punctuality.
In 1996, she had another part-time job cleaning for two months to make some extra
money and said that if she had not received permission to leave early, she would not have
gone or could have lied about her reasons but had asked for the time off which if she had
not received was not a big deal. She said that working for Mr. Blundon was difficult and
she did not expect anything from him but had tried to make her record of lateness and
absences better throughout this period.
It is the submission for the College that in review of the Grievor's disciplinary
record that it had applied the principle of progressive discipline extending from written
warnings through to suspensions of two and five days all of which were contained in the
Grievor's employment record when the decision to terminate her employment was made.
Although two suspensions were changed by the parties to suspensions with pay, it was
submitted that had not affected the substance of the disciplinary action on that basis or
that the five-day suspension was followed by a two-day suspension as it is not necessary
to escalate penalties to apply this policy. All of these instances referred to the Grievor's
poor work habits, carelessnesses and non excused absences from work for which the
disciplinary penalties were issued in an attempt to correct the Grievor's work
performance but which had not been successful. 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. The
position of the College is that there was a great deal of carelessness in her work
performance prior to and including the culminating incident in December, 1996 which
was a further example of that behavior and even though in that event there was no
adverse effect on the College, the possibility of the rejection of the Dental College
submission made her carelessness in ignoring the parcel to be mailed on December 19th a
serious incident justifying discharge.
It was further submitted that while it was acknowledged by the College through
Mr. Blundon that the Grievor was having personal problems with her family particularly
during 1995, she was provided reasonable accommodation to assist her requirements.
The Grievor however had not been forthcoming with Mr. Blundon who she told her
circumstances were none of his business yet Mr. Blundon continued to assist her. The
availability of the E.A.P. to the Grievor was suggested many times but the Grievor chose
to ignore that program which is confidential with the employee. During this period, there
were 20 messages to change her regular work schedule to leave early or to take other time
which were accommodate but her reliability and attitude became worse. Yet she said she
accepted responsibility for the things she did and did not do. The College submitted that
there was a pattern relating to the Grievor's attendance and reliability throughout her
employment of an irresponsible nature. A number of O.V.s concerned her lateness in the
period 1993 to 1996 in which there was a total of 33 occasions of change of time and
lateness in a 36-month period which was far and excess of what an employer should be
expected to accept.
Further, it was submitted that the evidence indicated a deficiency in the quality,
accuracy and knowledge of the Grievor in the performance of her work for the College as
indicated the substantial number of O.V.s with her manager involving such things as
failure to record items, incorrect recording of cheques and invoices, improper use of petty
cash, a cheque left unattended in the vault and hiding of invoices and other documents
which should have been filed or sent to Accounting. As an example, the Grievor had to
be hounded by Mr. Blundon to obtain an appropriate receipt for the purchase of her safety
shoes which indicated a lack of initiative and co-operation with her supervisor. Her
negative attitude was referred to in the performance reviews which continued in the
pattern of her work performance which the Grievor was either unable to unwilling to
change and had ignored the problem areas which were brought to her attention by her
supervisors and through the disciplinary process. With that evidence and the
consideration of the circumstances of the culminating incident in December 1996 of her
careless work performance, it is the submission of the College that the penalty of
discharge should be upheld.
It was also submitted that with the evidence of the pattern of conduct and of the
disciplinary actions taken against the Grievor during her employment outweighs any
entitlement for another chance. As well, the totality of the record of employment of the
Grievor which established that she was unable or unwilling to change her reliability and
attitude as an employee whose carelessness poses a risk in the performance of work in
that area, the penalty imposed by the College should not be changed.
Within the book of case references filed at the heating, particular reference in the
submission for the College was made to the following: Re Alcan Smelters and
Chemicals Ltd. and Canadian Association of Smelter and Allied Workers, Local 1, 12
L.A.C.(3d)324 (Hope); Re Mack Canada Inc. and I.A.M., Lodge 2281, 3 L.A.C.(3d)320
(Kennedy); Re Livingston Industries and I.W.A, 6 L.A.C.(3d)4 (Adams); Re British
Columbia Ferry CorD. and B.C. Ferry and Marine Workers Union, 37 L.A.C.(4th)332
(Korbin); Re City of Burlington and CUPE, Local 2723, 45 L.A.C.(4th)17 (Brent); Re
TTC and ATU, Local 113, 22 L.A.C.(3d)271 (Black); Re The Westin Hotel (unreported
Solomatenko, July 1985); Re Toronto Hospital and O.N.A. (unreported Keller, July
1996); Re Continuous Colour Coat and U.S.W.A., 9 L.A.C. (2d) 326 (Abbott); Re Lake
of the Woods District Hosl~ital and CUPE, Local 822, (unreported, Phillips, November
1983); Re Little and Cablenet Limited (unreported, Wilson, May 1992);
The submission of the Union is that the Grievor accepted responsibility for her
mistakes and that her employment record did not indicate a continuing behaviour
problem. There were recorded a series of attempts of control by Mr. Blundon which
were frustrating to the Grievor when she was seriously distracted by family difficulties in
the last six months of 1994 and throughout 1995 except in that period, the Grievor was
usually punctual. It was submitted that the suspension recommended by Mr. Bernosky
in 1991 was not carried forward and the supervisor indicated at that time that the Grievor
was then on track. Following which the Grievor was successful in a job posting to the
Shipping and Receiving area and that at least until mid 1994, her employment was
uneventful but with direction as to the goals set out in her performance review at that
time which was indicated as a positive step. Mr. Blundon emphasized teamwork in the
area but which was lacking with particular reference to the suspension involving the
missing V.C.R. and the final incidents. There were a few errors regarding invoices but
no evidence of any consequence to anyone other than some delay which might have
occurred in payment. The Grievor's lateness and absences were accommodated and she
made up time or time was deducted and it was submitted that it was reasonable for the
Board to conclude that the process should not during the time of her personal difficulties
be held negatively on her record. There was no issue of lateness after January 4th and on
advice of the Union, the Grievor told Mr. Blundon that she was not obliged to send him
an O.V. to check in with him prior to her start time which was not a requirement under
the collective agreement and was not insubordinate in that regard. After this direction
however, she was not late or missed sending an O.V. to her supervisor.
In its submission, there was not a pattern of lateness but absences related to a
cluster of personal problems in 1994-95 for which the Grievor did not offer excuses, she
accepted the adjustment of her time but the reaction of the College to this situation was
outrageous. It was not reasonable for management to continually refer the Grievor to the
E.A.P. when it was known that the Grievor had attended once but did not continue which
was her choice and did not indicate a character flaw. The Grievor accepted the
disciplinary actions on her file for which she took responsibility as she did for the final
incident and accepted the criticism.
It was submitted that the response of the College to the final incident was not
reasonable, no one had mentioned the importance of that delivery to the Grievor and
there was no consequence to the College as a result of the delay in delivery of the
package. The Grievor immediately apologized because she felt badly that the parcel had
not gone out but it was suggested that she was not solely in error as there is a shared
responsibility of duties in this department. The fact however that the Grievor took
responsibility for the incident however, reflects well on her character. It is its position
that this incident was exaggerated by the College which as a result dealt with her in a
harsh manner.
It was further submitted that the Grievor' s requests for time off and changes to her
schedule were granted and arrangements were made to accommodate her but
Mr. Blundon took them altogether as being negative but which did not indicate a careless
attitude. The Grievor did not provide all of the details of her personal problems to her
supervisor but was not dishonest and had attended at the Children's Aid Centre and with
her doctor to deal with the family emergencies. Mr. Blundon's attitude as to her
problems was not supportive. There was not an egregious pattern of lateness or absences
to support the termination of employment. The Grievor had difficulty with the style of
management by Mr. Blundon who was obsessed with control in that department and had
hounded the Grievor to provide details and did not give her any slack in her work duties
but was inflexible. It was submitted that the suspensions which were agreed to be
changed to with pay became disciplinary notices only and should be given no more
effect than a reprimand, if at all. The Grievor took only seven sick days in 1994 other
than her approved sick leave and none of the attendance problems were inappropriate or
established to have been an abuse of sick leave at that time or later. The Grievor' s
requests for time off work were granted.
It was submitted that there was no culpable behaviour of the Grievor in these
circumstances and no basis to conclude other than Mr. Blundon made the Grievor's life
difficult at work by his demands when she was subject to great stress although she
attended at work and should not be criticized for attempting to keep her life together.
After her daughter left to live with her father, there was a significant improvement in the
Grievor's employment until the VCR incident in July 1996. From then, there were three
incidents of lateness and the time was made up, no discipline had been imposed and no
other incident occurred between October and January 1997 which indicated that the
Grievor had turned the corner in her work. She was subsequently unreasonably
disciplined following the December incident.
It was submitted that the principle of progressive discipline was not applied
consistently or fairly by the College. The Grievor's attitude is not incompatible with her
continued employment with the College. It was submitted that the dismissal of the
Grievor should not be upheld and if any discipline was justified it should not exceed a 10-
day suspension. Reference in its submission was made to the following: Re Fox Ready-
Mix Co. and Teamsters Union, Local 880, 22 L.A.C.(4th)i 56 (Brent), Re Industrial
Family (Hamilton) Credit Union Limited and O.P.E.I.U., Local 343, 51 L.A.C.(4th)443
(Hebdon); Re Canada Post Corp. and C.U.P.W. 32 L.A.C.(4th)129 (Blasina).
As stated, the Board has reviewed and assessed the evidence and submissions of
the parties concerning the issue of the justification of the penalty or mitigation thereof.
Our conclusion is that because of the mitigating factors attributable to the final incident
as well as to many incidents contained in the Grievor' s record of employment that the
penalty of discharge was not justified. We are therefore persuaded on the totality of the
evidence that the Board should exercise its discretion to amend that penalty to a
suspension without pay subject to which the Grievor will be reinstated to employment
with the College.
With regard to the foregoing and to the final incident which led to the Griever's
discharge in December 1996 for which we have found that cause for discipline was
established by the College, the factors which moderate the effect of the Griever's conduct
are that there was no deliberate intent by the Griever to avoid herjeb duties, she accepted
responsibility for the parcel upon receiving it on December 19th from Ms. Bloomfield and
inexplicably but without any malicious intent neglected to carry out the direction as we
found she was given by Ms. Bloomfield for the delivery of that package. As a result of
which incident while not willful, it must be concluded that it was her negligence in the
performance of her duties which caused the late delivery of that parcel to the Dental
Commission. We have taken note that the RTS form was not marked as an urgent
request By Ms. Bloomfield and not completed in accordance with the policy of the
College as had that of Burak filed in this matter so as to alert the Clerk of the immediacy
requirement in the shipment. The College policy requires full completion of that
document when taken to the Shipper.
On the following day when the parcel could have been shipped in time, the
Grievor's duties involved mail with which she was kept busy during her shift and
Lindberg was assigned to the Shipping and Receiving duties that day. It is the usual
practice that parcels left over would be dealt with on the next shift. This package was
placed on the receiving table and as the Board has seen, a box of that size would be
obvious to anyone who checked. It is apparent however that before the employees left at
about 3 p.m. on Friday, December 20th, no check for leftover mail or parcels had been
made by anyone in that part of the Shipping area in which this box would have been
conspicuous. There was no follow up by Ms. Bloomfield or anyone else on Thursday
afternoon or Friday as to the delivery of that parcel even though it was very important to
the College to have it received in Ottawa before the deadline. She relied on the
responsibility of the shipping clerk to carry out her direction. The recipient in Ottawa
was faxed to advise if the box had been received but that was not done or followed up.
As the College was closing for the Christmas break and the President's direction to leave
early was conditional on all the work being done, it is inexplicable that a check was not
made of this critical area on Friday, which would have in our view of this area most
probably disclosed that this package had been left on the receiving table and could then
have been properly dealt with by the Shipper.
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. On balance in our consideration of the
Grievor's careless work taken with the factors which moderate the seriousness of that
deficiency in her work performance that the incident on December 19, 1996 itself did not
justify discharge but as found above was cause for the College to take disciplinary action
against the Grievor.
The second thrust of the position of the College was that the Grievor's
employment record demonstrated such carelessness and sloppiness in her work
performance along with unacceptable attendance and punctuality problems together with
the prior application of discipline led to its conclusion that her attitude and behaviour did
not and would not improve which supported its decision to terminate her employment. It
is to be noted that Mr. Blundon's method of supervision is not the issue in the grievance
but his manner of dealing with his staff throughout the period and in review of the
Grievor's record of employment in the purchasing department forms a backdrop to the
Board's consideration of all of the incidents of record and as reflected in the exchanges of
O.V.s, and disciplinary memos.
The evidence is clear that for about 18 months in the three-year period ending
with the Grievor's termination of employment, she experienced serious family difficulties
both with her estranged husband and her ten year old daughter which reflected negatively
on her work performance, punctuality and attendance. Those personal problems did
contribute to her difficulties in meeting the demands of her job and must be given
substance in the assessment of the incidents relied on by the College as being contrary to
appropriate work performance. None of these incidents can be found to be motivated by
any malice or willful disregard of the standards of performance required by the College
and in general, we are satisfied on the evidence that the Grievor accepted responsibility
for her errors and the adjustments made to her wages from time to time by Mr. Blundon
which she considered to be fair in dealing with those problems.
We do not conclude on this evidence that the Grievor could not or would not
accept Mr. Blundon's supervisory authority in the Shipping and Receiving area but rather
indicates her frustration and impatience with his demands consistently occurring
particularly during these 18 months when the Grievor was distracted by personal
problems. We do not conclude from the evidence that the Grievor was or continues to be
unwilling or unable to comply with supervisory directives and policies applicable at the
College and there is no apparent residual barrier to compliance with that authority.
Further, we find that the Grievor's competence in this position was not shown to
be lacking. It was her continual inattention by these personal distractions to the
requirements of her position as a Clerk which basically led to most of the performance
problems which she had during this three-year period. The Grievor testified that as her
daughter is now living with her father, the family problems which plagued her in 1994-95
have been resolved insofar as the effect on her ability to maintain a reasonable working
relationship and therefore is not a continuing concern in re-establishing her employment
with the College.
As to her personal problems which we find did have an effect on the quality of her
attention to work duties at least in this 18 month period, the continual reference by the
College to her opportunity to participate in the E.A.P. cannot be held as a negative factor
whether or not the Grievor participated in that program. In fact, she did attend one
session but testified that she was not comfortable with the confidentiality of the advisor
and did not return. The Grievor was aware that the program was available, she was under
the care of her own doctor and had continual contacts with the Children's Aid and Family
Community Unit which she preferred. The College correctly, initially at least, brought
the availability of the E.A.P. to her attention when these problems surfaced but the
continuation of that reference when these facts were known and with her lack of
participation being reflected negatively in the assessment by the College of her
employment record, exemplifies what became at that point to be an entirely negative
view of her attitude despite her personal problems and efforts to deal with them,
amounting to an attempt to control a very private matter. Mr. Blundon's request for
details of her personal problems when the Grievor told him that she had to leave work to
deal with the family emergency at a time when he knew or ought to have known through
her previous disclosures that she was having severe difficulties with her daughter exceeds
the normal supervisory expectation of disclosure by an employee and should not have
been considered a negative factor in her record as the evidence disclosed. On the other
hand, the evidence is that Mr. Blundon did accommodate the Grievor's requests for time
off and made adjustments to her work schedule and no doubt had he been supplied all of
the details that he requested, would have attempted to further assist the Grievor. We are
of the view however, that there was a lack of understanding between them which
exacerbated these reactions and influenced not only this situation but as well those
incidents which led to disciplinary penalties and negative reports as to the Grievor's
conduct and reliability as an employee.
Thirdly, the disciplinary record of the Grievor as set out above consists of a
written warning in August 1991 when the Grievor was working in the Industrial and
Motive Power Department after which the applicable record falls within the 1995/96
period consisting of a written warning, two-day suspension, five-day suspension and
another two-day suspension, the latter two were amended by agreement of the parties
following the grievances, to a record of suspensions but with pay. 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. Nonetheless, having the circumstances of those instances of
discipline, the Board has reflected on their relative significance. In that regard, we have
accorded little weight to the incident of 1991 which preceded the Grievor's successful job
posting to the Purchasing Department which in our view removed any permanency to the
concerns expressed by Mr. Bernosky at that time. The Grievor had acted positively to
those concerns which was reflected in the performance appraisal and in his letter dated
October l0th in which Mr. Bernosky withdrew his recommendation for a one-day
suspension. Having regard to this material and the evidence of Mr. Bernosky that the
Grievor gave him assurances as to her performance in the Tool Crib area that this entire
matter in view of her subsequent promotion is relevant only to the fact that the written
warning remains on her file. It does not lend support to the decision of the College in this
matter.
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 or 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.
As a result, however, there is no doubt from that record that the College took
issue with the Grievor's attitude and work performance and attendance and brought to her
attention through this procedure of management's dissatisfaction with notice that her job
was in jeopardy if these concerns continued. The Grievor admitted that she was warned
by this method but extended her explanations set out in the evidence but there can be no
doubt from her record, that the College would take any further misconduct as to her work
performance as a basis to consider the termination of her employment. Nothing however,
occurred to her detriment after the two-day suspension in July 1996 to the date of her
discharge. The period in which the difficulties surfaced to the point of discipline in order
to correct her work performance was essentially confined to the period when the Griever
was experiencing personal problems which permeated her working relationship at that
time. Not only did those circumstances affect the performance of her duties but also had
an effect on her punctuality and attendance both of which were headings of concerns for
the College and on which it relied in its final decision particularly referenced in the
President's Step 3 grievance response. None of these disciplinary actions were removed
through the application of Article 16.4 and therefore remain matters of record which can
be considered in the formation of this decision in the context that there was an application
of progressive discipline by the College in an attempt to correct the Griever's
performance referred to in the evidence.
By O.V. 94-10-07, Mr. Blunden told the Griever that his authorization was
required to leave early or return late to work or for lunch breaks which was his
established policy. Then there is evidence concerning the Grievor's requirement to leave
work for a family emergency and what was considered to be unauthorized leave on that
basis which cannot be supported as there was disclosure by the Grievor of her problems
in general to Mr. Blunden but not the "gory details" which we find was not necessary in
order to justify her absence from work on an emergency basis by which she did not
willfully abuse that policy. The Grievor received a memorandum regarding petty cash on
February 9, 1995 and the criticism concerning her inappropriate handling of those funds
with which she did not disagree and indicated that it was a stupid thing for her to have
done and had tried to hide her mistake. She agreed that was a violation of procedure and
did not dispute that warning. She said however that while she did not disagree that her
actions at that time were careless, she explained that she had personal problems. She did
not hide what she did but took responsibility for her actions and accepted the punishment
as she knew that it was wrong and admitted her mistakes. She did not however, think
that she could discuss these matters with Mr. Blundon.
The College submitted that with these and other incidents of record, there was a
pattern of poor work performance by the Grievor relating to her attendance, punctuality,
reliability and quality of her work along with the final incident justified discharge. The
evidence of the conduct of the Grievor indicated that she failed to follow the appropriate
procedures set by supervision as well as her carelessness in the performance of her work
which in its submission, outweighs any entitlement to another chance of employment
with the College. On the other side of the ledger however, are incidents of reference in
the O.V.s that are trivial and others which simply represent the normal flow of work-
related issues which cannot be considered as detractions from the Grievor's work
performance. We note that the Grievor's requests for time off and changes to her work
schedule were approved with or without wage deductions by Mr. Blundon. Some of her
absences were due to medical appointments and we were told that the policy is that an
employee is allowed one hour for each required appointment yet this was not consistently
applied to the Grievor who was criticized for the extent of those absences and her
punctuality.
In 1993, there was one incident of reference where the Grievor made up time; in
1994, there were six incidents, two of which were reminders and of no import, the others
indicated the Grievor made up the time for her lateness. In 1995, there were three
incidents, one of which involved a breakdown of her vehicle; O.V. 95-06-01, time
granted and made up, and again, O.V. 95-08-25 where coffee break time was used to
make up ten minutes lateness. There were four occasions of lateness in 1996, two of
which her time was made up. Another occurred when she had a problem with her truck
but time was made up, another lateness occurred because of the swing bridge was open
on her route to the College. In addition in 1995, there were five occasions referring to
appointments with doctors or with Children's Aid and her time was either allowed or
made up by the Grievor. In 1996, there were also occasions of approved days off.
Therefore, while the College submitted that there were 33 separate occasions of
change of time or lateness in a 36-month period, for the most part, there was approval and
accommodation either by authorization for the leaves or lateness and by wage deductions
which meant there was no cost to the College. There was however, by these incidents
disruption of the expected work patterns and they showed some disregard of the Grievor
for the importance of attendance and timeliness in her job. Nonetheless, the Grievor's
actions were not surreptitious but openly disclosed and dealt with by her supervisor on
that basis. An employer can reasonably expect regular and timely attendance at work
within the normal working hours however, in the usual course of events, some changes
will occur because of personal difficulties of the employees involved which can be
reasonably expected and usually accommodated as was indicated in this evidence but
which did not disclose culpable conduct by the Grievor with regard to her punctuality and
attendance at work. In considering the extent of the evidence under this heading of the
College decision, on balance, we give it little weight and do not conclude that a pattern of
abuse was established. The Grievor's request to leave early to attend at a part-time job in
December and the time made up is not considered as an intended detriment to her
position at the College. The Grievor explained that she needed extra money and was
working at another j ob part-time which by itself did not interfere with her duties at the
College. Her request to leave early one day for that purpose while not tactful was made
honestly and was not blameworthy conduct.
The Grievor's improper use of petty cash was a serious issue to Mr. Blundon to
which a direction was issued in O.V. 94-09-15 for which the Grievor did not have an
explanation but was not repeated so that the effect of the direction was achieved. The
O.V.s concerning incorrect reconciliation' s, codes and errors in recording are interoffice
memoranda about operational concerns and were not matters of discipline. These
references indicate the exercise of the control of the operations in the Shipping and
Receiving area required by Mr. Blundon and the various responses by the Grievor which
do not, in our view, indicate carelessness or inattention to her regular duties has reflected
negatively and again in total, we do not find support the submission that a pattern of
carelessness in the Grievor's work was displayed. There were obvious mistakes she
made through inadvertence or without explanation but there was no substantial basis to
conclude that the Grievor had an attitudinal problem either to the requirement of the work
of her classification or the authority of Mr. Blundon which would indicate a pattern that
the Grievor's quality of work was deficient. Clearly, her work performance was not
beyond reproach and she required supervision but that must be examined within a
reasonable standard of compliance by the Grievor in performing her normal duties in
Shipping and Receiving.
The Grievor admitted hiding of documents with the explanation that she did not
have time or motivation to deal with the paperwork which cannot be accepted as this is a
definite requirement in her j ob and her lack of care in this aspect of her job is detrimental
to her work performance. This criticism was reinforced when the material on her desk
was found after her termination which should have been dealt with. Her explanation for
not completing that part of her work was weak. She had been earlier found to have
hidden documents yet resurfaced as a problem for which the Grievor could not
reasonably explain. In that respect, it can be concluded that her work performance had
not been improved through corrective action. These incidents do not however, lead to the
conclusion that she could not properly perform the duties of her j ob.
On her last performance review, it was acknowledged that the Grievor
understands the basic job functions but required monitoring. Mr. Blundon noted that in
the last six months of that review to June 1995, the Grievor required considerable
supervision, guidance and support which the evidence indicated was forthcoming. The
evidence also indicated the reasons for that requirement were directly related to the
Grievor's personal problems which then existed and which have subsequently
disappeared but was recognized by Mr. Blundon in the review where the Grievor had not
reached the goals which he reviewed weekly with the Grievor.
Mr. Blundon did not agree that the Grievor accepted responsibility for her actions
yet that is her evidence and in review of the details contained in the many O.V.s and the
substance of the Grievor's evidence, it is clear to us that the Grievor had and does take
responsibility for all of her actions and errors. She accepted the disciplinary penalties
and without question demonstrated remorse for her carelessness in the final incident.
That she did not always have a positive attitude to her work responsibilities related for
the most part in the 18-month period to those personal problems referred to and which in
our view must be given credence as a substantial mitigating factor in all of these incidents
referred to in the evidence of the College on which it relied in support of the discharge.
This is not a circumstance such as dealt with in the B.C. Ferry award where carelessness
in safety procedures lead to a serious accident resulting in deaths but even there it was
found that the employment relationship could be restored. Nor do we find that the
circumstances in this case are parallel to the unsatisfactory work performance of a nurse
held to a high standard of professional care in exercising nursing standards with attendant
risks and her reported inability to accept responsibility. Those facts are clearly
distinguishable from the instant matter. While the Grievor acknowledged her difficulties
with Mr. Blundon, there was no evidence which we accept of her resistance to reasonable
supervisory direction in the performance of her work for which she acknowledged her
responsibility. We are satisfied that the Grievor would respond positively to a lesser
form of penalty and to substantially improve the performance of her duties for the
College to meet its standards.
In all, we are not prepared to find that the continued employment of the Grievor
would be a risk adverse to the normal functioning of the College, its Shipping and
Receiving area or its supervision. It has not been established that the Grievor cannot be
expected to give reasonable attendance in the future and in that regard, her absentee and
punctuality record improved substantially after her personal problems had been dealt
with. As well, other than the VCR incident in July 1996, no other adverse incidents arose
until her termination which indicates to us that an improvement in her work habits,
performance, attitude and attendance was being experienced and would probably have
continued except for the final incident leading to her termination. Thereby, we have
considered the rehabilitative potential of the Grievor in the assessment of the appropriate
penalty.
The final act of discharge may result as a consequence of a complete and
unalterable severance of an employment relationship and where that is established such a
penalty is generally held to be justified. The Board however, must consider all of the
circumstances in which that penalty was applied by the College and while there is a
considerable body of evidence in this matter apart from the final incident, to indicate that
the Grievor failed to meet the performance standards reasonably required by the College
through its management and was not a totally reliable employee exemplified in the record
of O.V.s and other memos on her file of poor work performance for about half of the
significant period in review and taking into account her disciplinary record prior to her
discharge, we find that the point had not then been reached to sever her employment
relationship. The College position was that her work history together with the
seriousness of the final incident justified the penalty. The Board has referred to the
elements of mitigation of her conduct both in the final incident and as to her employment
record which moderates their effect for the purpose of the assessment of the appropriate
penalty to be imposed. As indicated above, there was an improvement in her
employment in 1996 after her personal family difficulties had been resolved or at least
removed as a concern to interfere with the proper performance of her regular duties of the
College. In all of this, however, the Grievor cannot be exonerated but as she has in the
past must be fixed with and accept the responsibility for her carelessness in the
performance of her duties in the final incident and as indicated by the disciplinary
penalties of record. We do not however, find a pattern in that sense which would indicate
some premeditated conduct to arrange time off on particular days of the week or in a
month but rather her absences or lateness for the most part in 1994/95 were the effect of
her personal difficulties at that time which did interfere with the proper performance of
her work and by such created supervisory concerns in the control and management of the
Shipping and Receiving area represented in the various O.V.s and memos from Mr.
Blundon to the Grievor.
The essential purpose of the application of disciplinary penalties is to correct
improper culpable behavior 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.
We are satisfied that the evidence indicates the Grievor's interest and intent to
continue her employment and function properly within the College standards and can be
expected to provide an appropriate standard of attendance and punctuality in the future.
Our assessment is based on her demeanour at the hearings, her apology to the College
and a sincere expression of remorse in failing to carry out her responsibilities on
December 19th, the adverse financial impact of the discharge, the length of her service
with the College and her personal difficulties which seriously affected her past work
performance in at least an eighteen month period of review of her employment record.
For all of these reasons, the Board finds that the College did not establish just
cause to discharge the Grievor which we find was an excessive penalty in all of the
circumstances. As however, we have found that the College established that it had cause
for discipline, we are persuaded to exercise our discretion to substitute a penalty of
suspension and remove the discharge penalty from her record. At the hearing, the Board
agreed to reserve its jurisdiction to deal with the remedial issue arising from this award as
to the extent of the penalty, compensation including wages and benefits and the
restoration of seniority and any other matters of relevance to redress as a result of this
award, should the parties be unable to directly resolve those issues. Subject to the
foregoing, the Board directs that the Grievor be forthwith reinstated to her former
position with the College.
DATED AT OAKVILLE THIS 3 1ST DAY OF DECEMBER, 1998.
HOWARD D. BROWN, CHAIR
JON D. McMANUS, UNION NOM1NEE
ROD HALSTEAD, COLLEGE NOM1NEE