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HomeMy WebLinkAbout1988-1342.Caldwell.89-08-30 ONTA RIO EMPLO Y~-S OE LA COURONNE CROWN EMPLOYEES DE L 'ONTARIO GRIEYANCE C,OMMIS$1ON DE SETTLEMENT REGLEMENT BOARD DES GRIEFS 180 DUNDAS STREET WEST, TORONTO, ONTARIO, MSG IZ8 - SUITE 2100 TELEPHONE/T£t-~PHONE 8 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD Between: OPSEU {Caldwell) Grievor - and - The Crown in Right of Ontario (Ministry of Health) Employer Before: J.W. Samuels Vice-Chairperson J. Solberg Member H. Roberts Member For the Grievor: M.A. Kuntz Grievance Officer Ontario Public Service Employees Union For the Employer: J. Saunders Counsel Hicks Morley Hamilton Stewart Storie Barristers & Solicitors Hearing: May 15, 1989 Lloyd Caldwell was suspended without pay for eight and one half days in November 1988, as a result of events in that month which the Ministry characterized as insubordination. He grieves that the discipline was without just cause. Mr. Caldwell is the Supervisor of Drug Claims and Information, a bargaining unit position within the Ministry's Ontario Drug Benefit Program. The Program pays for prescription drugs issued to some one million senior citizens and 450,000 temporarily eligible people (primarily residents receiving welfare payments of one sort or another) in the province. These beneficiaries are responsible annually for roughly 36 million claims, having a total value of $650 million--an astounding $500 annually per claimant! These recipients obtain their drugs at some 2000 dispensing pharmacists, who send their bills to the Ministry. The grievor's unit processes the claims for payment. Mr. Caldwell oversees the work of five other employees. The claims come to the Ministry on printed forms (roughly 45% of the total), on magnetic tape (roughly 50% of the total), or on computer diskette (the remaining 4-6% of the total). The latter media has only been used for the last few years. The grievor has been working in the Ontario Drug Benefit Program for ten years, first in Toronto and then in Kingston, after the move of the office to that city. In order to understand the events which occurred in November 1988, it is necessary to know something about Mr. Caldwelrs last few years with the Ministry. For three or four years, the grievor has been seeking reclassification. One of his principal concerns is that, in the last few years, he has taken on the administration of the claims which come in on diskette. He has several outstanding classification grievances which have yet to' be scheduled for heating before this Board--a result of the enormous number 3 of such claims which have come to the Board since the reclassification of many public servants according to the OAG (Ontario Administrative Group) system. The delay in the processing of his grievances has been a very sore point with Mr. Caldwell. In the summer of 1987, a desk audit was done on his position by one of the Ministry's personnel people. Mr. CaldwelI hoped that this would help in achieving his reclassification. Indeed, there had been a number of expressions of support from the grievor's line supervisors, which led him to believe that the process would address some of his concerns. On Monday, November 14, 1988, very early in the day, almost a year and a half after the desk audit about which he had not yet heard anything, Mr. Caldwell learned that, in the view of the personnel department, the desk audit showed that he was already properly classified and no change was to be made. It is not clear whether the grievor received a letter directly from Mr. Rey, the Regional Personnel Administrator, or whether the decision was communicated to Mr. Caldwei1 by Mr. R. Paquin, the Manager of Drug Claims, the grievor's immediate supervisor. In any event, early on November 14, Mr. Caldwell was in Mr. Paquin's office to complain about the decision. TO put it mildly, he was tremendously disappointed and annoyed. He felt very strongly that he was not being compensated adequately for his work. Shortly thereafter, the griev0r gathered up the materials at his desk concerning the administration of the diskette claims, and took them to Mr. Paquin. The grievor told Mr. Paquin that, if he (Caldwell)wasn't going to be paid for doing these diskette claims, he wasn't going to handle this administrative load any longer. Up until this point, the grievor could be counted on to deal with the difficult problems which might crop up concerning the diskette claims. That aftemoon, after consulting the grievor's position specification, Mr. Paquin called the grievor in and told the grievor that his job included 4 responsibility for claims made in any media {a position which we share, given the wording in the position specification, which reads, inter alia, "reviewing and isolating problems in ~ media claims (i.e. magnetic tape and hard copy, etc)" (emPhasis added)). The grievor reiterated that he would no longer deal with diskette claims. The next morning, Mr. Paquin met with Mr. T. Horlor, the Assistant Director of the Ontario Drug Benefit Program (the man in charge of .the Kingston office), Mr. R. Rey, the Regional Personnel Administrator, and two Union representatives--Mr. P. Misir, the Local President, and Mr. S. Savarimuthu, the Chief Steward. These men were all in agreement that Mr. Caldwell should do the work and grieve if he felt he was not responsible for it. The gfievor was then called in to this gathering and was told by Messrs. Rey and Hoflor that he had to deal with the diskette claims. Mr. Caldwell said he would not. He was not being compensated adequately for his work. His Union representatives told him to do the work and grieve if he wished. But Mr. Caldwell was adamant. So Mr. Hoflor informed the grievor that he was suspended without pay until further notice, that the matter would be taken up with the Director in Toronto. The meeting in Kingston with Mr. Y. S. Drazin, the Director of the Program, did not take place until November 23. A rapprochement appears to have been reached. The grievor was contrite. On November 25, Mr. Drazin told Mr. Horlor to tell the grievor that he could return to work on Monday, November 28. Mr. Hoflor did so and the grievor was back at work on the 28th. A few days later, the grievor received a registered letter from Mr. Drazin, dated November 25, informing him that the 8 1/2 days he was off work would be treated as a suspension without pay. 5 We find that the grievor was insubordinate. He was given an order by Messrs. Paquin, Horlor and Rey--that he should continue his work with respect to diskette claims. These three gentlemen, in particular Paquin and Horlor, had the authority to give such an order. The order was clearly communicated to him. There is no doubt that the grievor knew what was being demanded of him. And there is also no doubt what his response was--he felt that he 'was not being compensated adequately for the work he was doing, and he would no longer deal with the diskette claims. (These four essential ingredients of insubordination the order, by someone with proper authority, clearly communicated to the grievor, and the grievor's refusal to comply~have been repeated many times by arbitrators. See, in particular, Brown and Beatty, Canadian Labour Arbitration (3rd edition), at pages 7-110 to 111, and the copious case references therein). The Union suggests that the grievor's office colleagues knew well how to handle the diskette claims and that, in fact, there never was any interruption because the grievor was never called upon to deal with a problem concerning the diskette claims. But this argument misses the essential point. The grievor's responsibility was to stand ready to deal with the problems, and he made it clear to his supervisors that he would not undertake this responsibility. The grievor was finn about this from the outset when he delivered to Mr. Paquin the materials dealing with the administrative details concerning diskette claims. He told Mr. Paquin then that Mr. Paquin better get someone else to handle these matters, and the grievor never wavered from this position throughout the piece. In these circumstances, in our view, there is no doubt that discipline is warranted. The grievor had limited supervisory responsibilities. He was the lead hand in his office. Management cannot tolerate an open refusal to do work assigned, particularly when the grievor had no legitimate basis to refuse the work. 6 Mr. Caldwelrs case is similar to that of the grievor in Duck, 300/81 tuorsr,,y,,, WllCrC frustration at the delay of his reclassification grievance. The Board there said (at page That the grievor was frustrated is understandable. The delays in having his case heard were machinery for speedily disposing of grievances cannot serve as a basis for refusing to follow a proper order of management, absent evidence of management engaging in deliberate acts to frustrate the procedures mandated. In our case, there were no deliberate acts of management designed to frustrate the mandated reclassification grievance procedures. The grievor cannot use his frustration as a basis for refusing to follow a proper managerial order. The question then becomes the appropr/ate disciplinary response. The grievor appears to have served the Ministry well. He is very near retirement. Though we find that he did not have a legitimate excuse for his refusal to carry out management's order, we understand his frustration and upset over the dilatory way in which his claim for reclassification has been handled, in particular the absurd length of time it took for the personnel department to communicate to him the results of the desk audit. However, the Ministry's decision to impose an 8 1/2 day suspension without pay does not appear to have been based on any particular reasoning other than that thi~q wag the neriod MrL Caldwell had already helen nfl wc~rk when the decision was taken. It seems that the suspension might have been three days or three weeks, if this was how long it had taken to.get the meeting together2 In our view, such a decision cannot be sustained. 7 It's not a matter of this Board second-guessing management, but rather a matter of'asking for the first time what is an appropriate disciplinary response in these circumstances. This Board said in Gillies, 129/77 (Pritchard), "the Board should not attempt to substitute its judgment for that of the employer. Rather we should ask whether the employer's response fails within the range of reasonable disciplinary responses in all the circumstances and, if so, to respect that decision even if the Board might have imposed a somewhat different penalty if faced with the decision at first instance" (at page 12). In our case, the discipline imposed did fall outside the range of reasonable disciplinary responses. In our view, a suspension of the balance of the week in which the incident took place is reasonable. This is sufficient to bring home to the grievor the seriousness of his conduct, and to deter others from following the grievor's lead. We substitute a penalty of 3 1/2 days for the 8 1/2 days imposed by the Ministry. 8 The grievor is to be compensated for the extra five days' suspension and we will remain seized of this matter to determine any question which arises between the parties concerning this compensation. Done at London, Ontario, this 30th day of August , 1989. Samuels, Vice-Ch a.i rpevson "I dissent" (dissent attached) J. Solberg, Member H. Roberts, Member Dissent from Janet Solberg Union Nominee Re: OPSEU (Caldwell) and The Crown in Right of Ontario (Ministry of Health) File Number 1342/88 I can not disagree with the Board's discussion of the facts and the law on this matter. But I do find the penalty excessive. The grievor has worked many years for the Ministry, has an exemplary record and is very near retirement. Under those circumstances, I think a shorter suspension would have been sufficient.