HomeMy WebLinkAbout1989-0331.Drew.89-12-19 ONTARIO' EMPL 0 YES DE LA COURONN£
~"~ ~ CROWN EMPL 0 ¥E£S DE L 'ON TA RIO
;: ;" ~ GRIEVANCE COMMISSION DE
SE'FFLEMENT R/~GLEMENT
BOARD DES GRIEFS
180 OUNDA$ STREET WEST, TORONTO, ONTARIO. MSG 1Z$- SUITE2100 TELEPHONE/T~-I.~PHONE
180, RUE DUNDAS OUEST, TORONTO, (ONTARIO) MSG IZ8 . BUREAU 2100 (416) 5.,q8-0688
331/89
IN THE MATTER OF AN ARBITRATION
- Under -
THE GROWN EMPLOYEES COLLECTIVE BARGAINING ACT
Before
THE GRIEVANCE SETTLEMENT BOARD
Betweem:
OPSEU (Drew)
Grievor
- and -
The Crown in Right of Ontario
~Ministry of Correctional Services)
Employer
BefOre: Eric K. Slone Vice-Chairperson
Peter Klym Member
Doug Montrose Member
For the Grievor: Susan Ballantyne Counsel
Cavalluzzo, Hayes & Lennon
Barristers and Solicitors
For the Employer: Maureen Galway
Staff Relations Officer
Ministry of Correctional Services
Hearing: September 18, 1989
AWARD
The grievor is a Correctional Officer at the Maplehurst
Correctional Centre ("MCC"} in Milton. In a grievance dated
March 10, 1989 he grieves as follows:
STATEMENT OF GRIEVANCE
"I grieve that my employer has [an] unjust and
discriminatory policy regarding advisal (sic} letters
of sick time."
SETTLEMENT DESIRED:
"i. That my letter dated Nov. 23, 1988 be taken off my
file and destroyed. ''
2. That a fair and just system be implemented for
everyone"
The gist of the grievor's complaint is that he feels he was
unjustly singled out for attention in connection with the
Employer's new "Attendance Review Process", which involves a
review by management of employees whose absences for sickness
exceed the group average. While he concedes that his attendance
was above the group average, he contends both that his absences
were legitimate, and that he received harsher treatment than
others in his employee group who also had above average
absenteeism due to illness.
Preliminary Objections
The Employer raised two preliminary objections, namely:
1. It is argued that the grievance does not raise a
violation of the Collective Agreement, and is therefore not
arbitrable, and,
3
2. It is argued that the grievance, is out of time.
We ruled at the hearing that these objections would be
decided together with the merits of the grievance, since the
evidence promised to be short and had we reserved on these
objections we risked turning a one day grievance into a two day
grievance.
Facts
In June 1988, the ministry decided to implement an
"Attendance Review Process" which applied to MCC. As stated in
the policy, its objectives were to:
"identify employees whose absenteeism meets or exceeds
institution standards or is a cause for concern~ to
make appropriate recommendations and to provide
assistance to staff and their manager~ that will help
an employee, enjoy good attendance. Another important
function...is to identify staff whose attendance is
exceptional and ensure proper recognition is given."
The procedure outlined in the policy involves four
progressive steps to be followed where an employee is identified
whose attendance is a cause for concern:
1. An "Attendance Review Form" is sent to the employee, advising
him.of his attendance record, and an interview is held with a
supervisor and, if desired, a union representative.
4
2. If no improvement is noted in the next review period, a
further notice is sent and interview held.
3. If the problem persists beyond the second stage, the emplOyee
is brought up for an interview before the Committee.
4. Depending upon the results of the stage 3 interview and the
Committee's recommendations, a number of options can be resorted
to including further discussions with the employee, medical
examinations, or most drastically a final warning letter that
could ultimately form the basis for a discharge for innocent
absenteeism.
On November 23, 1988, the grievor received a "step 1"
letter, advising him that his absences for illness during the
first nine months of the year were 5 occasions totalling 10 days.
At his interview he was advised that this exceeded the average
for his employee group. By the time of the interview he had
missed a total of 22 days for the year, and it is noted on the
form that he explained that many of the absent days had been
taken because of a kidney stone problem.
The matter was left pretty much at that. The letter
remained on the grievor's file. No grievance was launched until
more than three months later. The grievor explained that he was
under the assumption as a result of a conversation with his
supervisor, that such letters had gone. out to all employees whose
attendance had exceeded the average. However, upon doing a
little asking around the grievor discovered that a number of his
co-workers had higher than average absenteeism, but had not
received the same or indeed any letter. The grievo'r formed the
opinion that he was being singled out for discriminatory
treatment, and launched this grievance.
We admitted into evidence the attendance records of six of
the grievor's co-workers, whose identities we will not disclose
in this award for reasons of confidentiality. To summarize that
evidence~ it is fair to say that all but one of these co-workers
had missed more days in the period under review than the grievor.
It was explained by Deputy Superintendent Deborah Newman, who sat
on the Attendance Review Committee, that' in each of these cases
there were mitigating factors which in the minds of the committee
members justified not sending the letter. For example, in one
case there had been a lengthy absence for surgery, which
obviously was beyond the control of the employee whose record was
otherwise exemplary. The committee did not think his absenteeism
was any cause for concern, notwithstanding that technically it
exceeded the average. In other cases' there were also lengthy
absences covered by doctor's notes. What the committee was
obviously more likely to be concerned about was a record of short
absences not covered by doctor's notes, and in particular a
pattern of absences on days immediately before or after other
days off. As described, the exercise of identifying causes for
concern was not scientific or even mathematical. The committee
was groping for trends and forming impressions on a fairly
imprecise basis.
The grievor pointed out that only a very few of his days
missed were not part of one or more lengthy absences which were
indeed covered by doctors notes. The c~mmittee admittedly did
not have full information before it when it made its initial
assessment of who was or was not a "concern", so, it is suggested
that we ought to find that the grievor was not fairly treated by
the committee. The remedy sought is to have the letter removed
from his file.
The Preliminary Objections
Dealing with the first of these objections, namely that the
grievance is not arbitrable, the Employer contends that the right
to implement a policy of attendance review is an exclusive
management function within the scope of section 18(1) of the
Crown Employees Collective Bar~ainin~ Act, which, reads:
18 - (1) Every collective agreement shall be deemed to
provide that it is the exclusive function of the
employer to manage, which function, without limiting
the generality of the foregoing, includes the right to
determine,
(a) employment, appointment, complement,
organization, ~ssi~nment, discipline,
dismissal, suspension, work methods and
procedures, kinds and locations of equipment
and classification of positions; and
(b) merit system, training and development,
appraisal and superannuation, the governing
principles of which are subject to review by
the employer with the bargaining agent,
and such matters will not be the subject of collective
bargaining nor come within the jurisdiction of a board.
It is argued that the words "and such matters will not ...
come within the jurisdiction of a board" in s.18(1) specifically
oust our jurisdiction, and moreover since the letter which the
grievor complains about is not disciplinary .(indeed, this is
conceded), there is nothing in the Act or the Collective
Agreement which would permit this matter to be grieved.
Counsel for the grievor argues that the right of management ~'
to manage is not an entirely unfettered right; that it must be
exercised bona fide. She relies upon the case of Klonowski GSB
2143/87 (Fraser), and in particular the comments at page 8:
"In the Kuyntjes case, Vice-Chairman Verity thoroughly canvassed
the exercise of a discretionary power such as is found in issue
here, and we find his analysis and statement of principles
apposite. Without covering once more the jurisprudence reviewed
at length in that case, we would adopt the principle stated by
Vice-Chairman Swinton in Re Young and the Crown in Ri/%ht of
Ontario (Ministry of Community and Soc,~l Services), 220/79 and
reported in (1979) 24 L.A.C. (2d) 145. In the Young case, Vice-
Chairman Swinton noted at p.148 that where the employer has a
discretionary power, "The board's concern is the reasonableness
of the decision, not its 'correctness' in the board's view." Vice-
Chairman Verity refers to that principle on p. 15 of the Kuyntjes
award, and proceeds further on p. 16 to state a list of
considerations that must be applied, in view of the principle to
"ensure that decisions are made within the confines of certain
minimum standards of administrative justice". He then lists those
considerations as follows:
"1. The decision must be made in good faith and
without discrimination.
2. It must be a genuine exercise of discretionary
power, as opposed to rigid policy adherence.
3. Consideration must be given to the merits of the
individual application under review.
4. All relevant facts must be considered and
conversely irrelevant considerations must be
rejected."
It is not entirely clear what is precisely a "discretionary
power" within the meaning of those cases, as opposed to other
exercises of power or functions. Where the Collective Agreement
specifically provides, for instance, that an employee "may be
granted" leave without pay or some other indulgence, then it is
clear that the discretion expressly arises out of the use of the
permissive word "may". That discretion comes into play in a
process initiated by the employee when he approaches the employer
to grant the request. The employer must make a decision, yea or
nay. That is a clear case where good faith and fairness must be
observed. But on the other hand where the employer is acting on
its own initiative and in its own interest within its exclusive
sphere~ it is much less apt to term its exercise of power
discretionary. True, it exercises a discretion in deciding
whether or not to act at all, but the same could be said of
anyone who does virtually anything. Other cases such as Carter
GSB 2Z91/86 (Knopf) distinguish between discretionary powers that
must be exercised fairly, and matters over which management has
an "unfettered discretion". In Carter and other cases cited
therein, it has been clearly held that there is no duty of
fairness that arises upon the employer in the allocation of
overtime. The rationale for leaving the employer's discretion
unfettered is that there is nothing in the Collective Agreement
that gives the employees any right to overtime. It is well known
that many collective agreements do have restrictions on the
employer's ability to allocate overtime, so the remedy for
employees covered by this Collective Agreement is to be found at
the bargaining table and not at the Grievance Settlement Board.
In the instant case, we are dealing with a policy that is
9
not disciplinary, but is designed to reduce absenteeism by
increasing employees awareness of their particular absenteeism
and, if necess~ary, recommending programs to improve health and
fitness. It is very difficult to see how any implied duty of
fairness would arise, at least at the early stages of the program
when the process is so far from disciplinary. We accept Ms.
Newman'
s evidence that the sending of a step 1 letter does not
inevitably lead to a step 2 letter the next time that an
employee's absenteeism is deemed to be a concern. Since the
review is now done on a quarterly basis, it is very possible that
some employees will have good records for a number of quarters,
but at some stage in the future again raise concerns. It was Ms.
Newman's evidence that in such a case the employee might simply
be sent another step 1 letter.
At later stages in the process, where the employer has gone
through its four stages of warnings, the process may become
quasi-disciplinary in the sense that it may lead to discharge for
innocent absenteeism, and it is at least arguable that a duty of
fairness would then arise. At that stage the employee affected
by the process might very well be heard to .complain if the
employer was unfair in its assessment of his situation and he was
unfairly singled out and placed in jeopardy of losing his job.
But we cannot say the same at this very early stage. It would be
different if we were to characterize the process as disciplinary,
but that question has already been answered in the negative. We
therefore must find that the employer has not yet come under any
legally recognized duty of fairness to this grievor insofar as
its implementation of the policy is concerned, and there being no
violation of the Collective Agreement otherwise argued, this
grievance is not arbitrable.
In so finding, however, we are not prepared to accept the
submission that our jurisdiction is ousted by the closing words
of s.18(1) of the Crown EmploYees Collective Bar~ainin~ Act, as
set out above. The section refers to "a board", not specifically
to the Grievance Settlement Board. Other sections of the Act
identify this Board by name. While it is not necessary for us to
decide this point, we are more inclined to the view that this
section precludes an interest arbitration board from whittling
away at management rights, which is consistent with the fact that
the parties cannot in any event bargain them away. If this were
otherwise, there would be serious conflicts in the Act. To use
the most obvious example, the right to dismiss is an exclusive
management, function, but section 18(2) goes on to say that
dismissals may be grieved. What would be the purpose of
including dismissal in s.18(1), and precluding a "board" from
touching it, and then going on to make it arbitrable under
s.18(2)? This would be a nonsensical game of the Legislature
giving and the Legislature taking away.
While the above-finding that the grievance is not arbitrable
would be sufficient to dispose of the matter, we will also
comment on the other objection. We do not agree that the
grievance is out of time. The grievor honestly believed that the
letters were being sent to all employees whose absenteeism was
above the average. This was perceived by him as fair. When he
found out that some other less obvious factors were at work, he
11
became concerned that he was being singled out unfairly, and
grieved immedia.tely. This in our view complied with the
Collective Agreement. We accept as correct the following
statement in the case of Pierre GSB 492/86 (Verity) at p.19:
"Whet is required on the part of the employee to comply with the
mandatory 20 day time limit, is knowledge or awareness that there
has been a violation or a possible violation of the p~ovisions of
the Collective Agreement. Article 27.2.1 contemplates the
knowledge on the part of the employee - a subjective concept."
The Merits
Even if we are wrong and a duty of fairness may be imposed
on the Employer, in our view it did not act unfairly. The
process of identifying employees whose absenteeism is a "concern"
is far from an exact science. In the absence of any evidence of
malice directed at any employee or group of employees, we would
not presume to second-guess the Employer's assessment of who
could benefit by receiving, the letter and having the follow-up
interview, and who would not benefit. The process by which the
Committee made that assessment was not an unreasonable process.
And moreover, even if the Employerwere to misread the facts and
single out an employee whose attendance, is not really a problem,
the prejudice to the employee is extremely slight.. The letter on
file does not create much if any harm. It will not inevitably
lead to progressive steps. This' only illustrates how minimal the.
duty of fairness, if any, would be. It is a well-known principle
of administrative law that the duty of fairness increases in
correlation to the potential prejudice that may be suffered by
the. person to whom the duty is owed. The converse is also true.
12
Where the prejudice is small, there is a correspondingly
inclination or incentive to fetter the decision-maker with
externally-imposed requirements that it adjust its procedures to
create a higher standard of fairness.
In the result, then, the grievance is dismissed.
Dated at Toronto this 19 day of December t 1989
Eric K. Slone, Vice-Chairperson
Peter Klym, Member
Doug Montrose, Member