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HomeMy WebLinkAboutD'Mello 88-03-31BETWEEN: CONESTOGA COLLEGE (The Employer) - and - ONTARIO PUBLIC SERVICE EMPLOYEES UNION (The Union) AND IN THE MATTER OF THE GRIEVANCE OF M. D'MELLO - 87G60 BOARD OF ARBITRATION: Kenneth P. Swan, Chairman R.J. Gallivan, Employer Nominee Jon McManus, Union Nominee APPEARANCES: For the Employer: Richard Drmaj, Counsel Patricia Carter, Director, Doon Campus John Podmore, Director, Human Resources Delores Smith, Human Resources Officer For the Union: N.A. Luczay, Grievance Officer C. Whitehead, Chief Steward M. D'Mello, Grievor AWARD A hearing in this matter was held in Kitchener on February 11, 1988, at which time the parties were agreed that the board of arbitration had been properly appointed and had juris- diction to hear and determine the matter at issue between them. That matter is the grievance of Ms. Marilyn D'Mello dated March 31, 1987. Ms. D'Mello's grievance is in the following form: I grieve that a disciplinary notice dated August 21, 1980 has not been removed from my Official Personnel File in accordance with the Support Staff Collective Agreement. The remedy requested is the removal of the notice, and all associated documentation. The grievance is based upon an alleged violation of clause 16.4 of the collective agreement, but that provision is best understood in the context of the entirety of Article 16, which is as follows: 16. EMPLOYEE EVALUATION 16.1 Performance Appraisal The copy of an employee's performance appraisal which is to be filed on the employee's record shall be given to the employee in advance. The employee shall initial such appraisal as having been read within seven (7) days of receipt of a copy of such appraisal. If the employee wishes, he/she may add his/her views to such ap- praisal within such seven (7) day period. 16.2 Disciplinary Notice Each employee shall receive a copy of any formal disciplinary notice that is to be placed in his/her personnel file. With the consent of the employee concerned, notifica- tion shall be given to the Local Union that a disciplinary notice is being served on the employee. 16.3 Access to Personnel File Each employee shall be entitled to reasonable access to his/her personnel file in order to examine his/her performance appraisals and disciplinary notices. 16.4 Removal of Notices from File Each employee may, once each calendar year, request the removal of a disciplinary notice that has been in his/her official personnel file for more than one (1) year. The removal of such notice shall be at the discretion of the College. Such discretion shall not be exercised unreasonably. The history of this matter may be briefly stated. Ms. D'Mello was hired by the College on June 4, 1979. On August 21, 1980 her supervisor, Ms. Patricia Carter, Manager, College and Community Relations, sent her a critical memorandum alleging shortcomings in work performance since June 16, 1980, when Ms. Carter became the grievor's supervisor. The concerns expressed are certainly serious, but they are also diffuse, referring to performance in general rather than to any specific incident. The memorandum concludes that "unless there is noticeable improvement in your performance in the next month" further disciplinary action would be necessary. The evidence before us at the hearing is that no further disciplinary notations appear on the grievor's file from August 21, 1980 to the present. On February 1, 1983, the grievor requested that the memorandum, and associated documents, be removed from her personnel file. On February 7, 1983, that request was denied "at this time" by Mr. John Podmore, then Director, Personnel Services. When this request was renewed in 1987, Mr. Podmore agai'n refused, now in the capacity of Director of Human Resources, and the present grievance was filed. While the Union attempted to paint the grievance in a somewhat wider form at the hearing, it is clear that the only issue before us is whether the Employer exercised its discretion under clause 16.4, and did so not unreasonably. To that end, Mr. Podmore described in testimony how he made the decision. It was his evidence that, although there have been a number of requests by several employees over the years to remove documents from various files under article 16.4, every request except one had been denied. That one request, which he described as involving "extenuating circumstances" was to remove certain medical documentation. That request was accepted. Mr. Podmore was confronted in cross-examination with an allegation that there was a College policy that no documents would be removed from files. While he denied that there was a formal policy in effect, he said that it has been "the practice of the College not to tamper with the historical record". In the particular case of the grievor's request, he said that he read the file, and in particular the memorandum in question, and "saw no reason to withdraw this memo". There was also evidence as to the recommendation of the supervisor who -- 4 ¸- wrote the original memo, and the grievor's present supervisor, none of which we think really assists us very much in this case. In concluding this description of the College's position, we observe that the Step 3 Reply, from the President of the College, concludes: The memo issued by your supervisor dated August 21, 1980 was a statement of fact and part of your historical record as an employee of Conestoga College. In our view, the College's position is wrong in principle, and flies in the face of the only possible meaning of Article 16. All of that article deals with the composition of an employee's personnel file, which is also referred to as the employee's "record". It is perfectly obvious that the only purpose for maintaining a file of this nature is to inform personnel decisions made by the College, and it is therefore intended that anything which is in the file would be acted upon. In clause 16.4, the parties have provided that an employee may request the removal of a disciplinary notice that has been in his or her file for more than one year, and that such requests may be repeated once each calendar year. The parties have also provided that the removal is a matter at the College's discretion, but they have required the College to meet a standard of resonableness in exercising that discretion, one which a board of arbitration may and must review on objective grounds when the matter is properly placed before it. If the parties had intended to preserve the historical record only as a matter of notation of - 5 - what had actually occurred in fact in the past, no such clause would ever be required in the collective agreement. The inten- tion simply could not have been only to deal with those cases of embarrassing or personal documentation which constitute "ex- tenuating circumstances". The parties put no such limitation in clause 16.4, and have at least implicitly suggested that the simple passage of time might be enough to justify removal of a document. If the passage of time is enough, then the preserva- tion of the historical record is not an interest which the parties were attempting to promote. Clauses of this type, although not usually involving the exercise of a discretion, exist in many collective agree- ments. Their purpose is to ensure that a personnel file, which is intended to be acted upon and expected to be acted upon by managers involved in making personnel decisions, will not include irrelevant, stale or prejudicial material. The arbitral juris- prudence is perfectly clear, and no extensive analysis of it is needed to demonstrate the point, that stale disciplinary nota- tions are simply irrelevant to the past record of the employee, unless they are so thoroughly heinous in nature as to constitute a permanent blot on the character of the employee, or unless they are preserved by a continuing string of similar conduct over the years, the repeated nature of which deserves to be called to the attention of anyone making a personnel decision. We do not propose to try to create a test against which the College might measure its discretion from first principles; - 6 - that is not our job, nor does it appear to be possible. However, we certainly do not think that it is any answer to a request to remove documentation to declare that it constitutes part of the historical record; on that basis, nothing would ever be removed. The proper test, in our view, is whether the disciplinary notation is still relevant in any way to any personnel decisions which might be made about this employee. One way to decide whether a document ought to be removed is to ask whether any arbitrator would permit an employer to consider it and give it any weight in the course of a personnel decision, such as the calculation of penalty for a subsequent offence, or in a promo- tion competition. It is not possible, in this case, to decide that the College has failed to exercise its discretion; it clearly has exercised it by considering and rejecting the grievor's request against established criteria. The problem is that the crite'ria which were established are so onerous as to be entirely outside the intention of the collective agreement, so that any exercise of the discretion against those criteria would be unreasonable. In our view, the College has simply misconceived the purpose of this provision in the collective agreement, and the decision cannot therefore be allowed to stand. Boards of arbitration are usually very careful not to substitute their own discretion for that of a person or party to whom a discretion is expressly assigned under the collective agreement, but in a case where that party acts on wrong prin- - 7 - ciples, it is essential that a board of arbitration intervene. The notation here at issue alleges substandard perfor- mance, based upon two months of supervision of the grievor, and reports received from other employees. Accepting that the allegations are valid, since they were never grieved, it is doubtful whether any board of arbitration would permit an employer to consider and give any weight to a stale report of such r~latively minor shortcomings in work performance separated from the present by seven years of a clean disciplinary record. If the document is thus irrelevant, its continued presence in a file which is expected to be used in personnel decisions is wholly prejudicial, and ought not to be permitted to continue. A proper exercise of discretion, therefore, would have to identify some compelling reason to preserve such a document, rather than seek extenuating circumstances to justify its removal. We recognize that it is rare that arbitrators will supplant the discretion of the employer with their own, and we therefore remit this matter back to the College for reconsidera- tion on proper principles. We do not have full access to the information possessed by the College, and its discretion will of necessity be better informed than ours. We retain jurisdiction, however, to resolve any difficulties which may arise in im- plementing this award. - 8 - DATED AT TORONTO, Ontario this 31st day of March, 1988. I concur "R.J. Gallivan" R.J. Gallivan, Employer Nominee I concur; see attached "Jon McManus" addendum Jon McManus, Union Nominee ADDENDUM I am in full agreement with the Chairman's conclusion that the College erred in principle in this case. In my view, however, the Board should have ordered the removal of the disciplinary notice from the grievor's personnel file. The only reason given by the College for refusing the grievor's request, which this Board rejected as being contrary to the collective agreement, was that they wished to preserve the notice as an historical record. The College provided no other reason, compelling or otherwise, to preserve this stale document on the grievor's record. The College has had the opportunity, at least twice, to exercise its discretion properly under Article 16.4 and has failed to do so. In my view, it is unnecessary for this Board to prolong the proceedings by referring the matter, yet again, back to the College when, on the facts, it would be unreasonable for them to refuse the grievor's request. In any event, I would hope that the College, having been enlightened by this Board, will give the grievor's request the genuine consideration that it deserves. John D. mc Manus.