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HomeMy WebLinkAbout1990-0703.Miller.91-06-06 l"r-~""" ONTARIO EMPLOYÉS DE LA COURONNE CROWN EMPLOYEES DEL 'ONTARIO 1111 GRIEVANCE COMMISSION DE SETTLEMENT ' . REGLEMENT BOARD DES GRIEFS 180 DUNDAS STREET WEST, SUITE 2100, TORONTO, ONTARIO. M5G 1Z8 TELEPHONEITÉLÉPHONE: (416) ·326- /388 ~ T80, RUE DUNDAS OUEST, BUREAU 2100, TORONTO (ONTARIO). M5G 1Z8 FACSIMILEITÉLÉCOPIE: (416) 326-1396 703/90, 705/90, 706/90 IN THE HATTER OP AB ARBITRATION Under THB CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Setore THE GRIEVANCE SETTLEMENT BOARD BETWEEN OPSEU (Miller) Grievor - and - The Crown in Right of Ontario . (Ministry of correctional Services) Employer BEPORE: R. Verity Vice-Chairperson J. Carruthers Member D. Clark Member FOR THE D. Wright GRIEVOR Counsel Ryder, Whittaker, Wright & Chapman Barristers & Solicitors FOR THE J. Benedict EMPLOYER Manager· Staff Rel~tions & Compensation Ministry of Correctional Services BEARING: October 11, 1990 March 25, 26, 1991 April 17, 1991 "" 2 D E CIS ION Scott Miller is a Correctional Officer 2 employed at Metropolitan Toronto West Detention Centre. He has also served as a Union Steward since June, 1987. On May 13, 1990 Mr. Miller filed three separate grievances alleging "unfair treatment" by his Employer. The grievance regarding "travel claim", GSB File #705/90 was withdrawn at the hearing. The two remaining grievances arise from the Employer's decision in January 1990 and its subsequent actions to require the grievor to submit to a medical examination under Article 52.9 of the collective agreement. For the past three years, Hr. Miller has been frequently absent from work for reasons of health. The grievor used 14 credits for sickness ín 1987, 26 credits in 1988 and 66.25 credits in 1989. Each credit equals eight hours of work. The gri'evor alleges that the ßmployer's documentation on his personnel file constitutes unjust discipline (GSB File #703/90), and further that "the Employer has violated the collective agreement in respect to attendance" (GSB File #706/90). The parties referred to the following provisions of the collective agreement: 52.9 Where, for reasons of health, an employee is frequently absent or unable to perform his duties, the Employer may require him to submit to a medical examination at the expense of the Employer. ~_._-. --... 3 ATTENDANCE REVIEW MEETINGS 52.l3 Where an employee is int·erviewed by a member or members of management in respect of the employee's record of attendance at work, no evidence of that interview or of the partícular aspects of the attendance record upon which that interview was based shall be admissible for the Grievance Settlement Board' in the arbitration of a disciplinary grievance unless the employee was given reasonable notice of the interview and of the right to have union representation at that interview, and the employee either had such union representation or declined that representation in writing prior to the interview. The relevant facts are straightforward, although many are in dispute. On January 31", 1990 at approximately 6:45 a.m. to 7:15 a.m. when ,Mr. Miller had completed a shift and was leaving to go home, Gary Pickering, then Metro West· Senior Assistant Superintendent (Male Unit) approached him and advised that he would be sent for a medical examination. Mr. Pickering also enquired if the grievor was willing to co-operate. The grievor testified that he wasn't surprised by the request and replied tlhold a meeting and I will sign a release". Although unable to recall the exact conversation, Mr. Pickering testified that he was satisfied the grievor would sign the necessary.authorization for the release of medical information. On the same date, Mr. Pickering wrote to the grievor as follows: As per our conversation of this date, this memorandum . will serve to confirm your agreement to provide a letter agreeing to release the results of a medical examination which, specifically, addresses your current ability to perform the duties of a correctional officer, and prognosis for the future. ·, 4 Please submit your written agreement to Mr. R. Ellison, Senior Assistant Superintendent, before February 8, 1990, in order that arrangements can be made for an appointment, at no cost to you. On February 1, Mr. Pickering left Metro West and Randy Ellison assumed his duties. The grievor was upset by the contents of Mr. Pickering's letter, which he believed was in·contravention of the Institution's new Attendance POlicy and Review Process. According to the grievor's testimony he was willing to sign a medical release at a meeting with management in the presence of Union representation, but had never agreed to submit a letter as requested. . Mr. Miller testified that on three separate occasions he was subsequently approached informally by Mr. Ellison and urged to write the letter. On February lS Mr. Ellison met with the grievor. The purpose of the meeting was to ask the grievor formally with a "yes" or "no" answer whether he intended to comply with Mr. Pickering's letter. According to Mr. Ellison, the grievor abruptly left the meeting in an agitated state claiming that he "was misquoted" and was not prepared to discuss the matter further without Union representation. Mr. Ellison prepared a memorandum to Superintendent R. D. Phillipson dated February 20, 1990 (Exhibit 3 - pp. 2-3) outlining the events of the meeting. He concluded that Mr. Miller "does not -. I 5 want to co-operate" and recommended "disciplinary àction" as a method of dealing with Mr. Miller's attendance credit usage. On February 23 the grievor was given notice by the superintendent (Exhibit 3 - p. 4) that a meeting would be held on February 28 in the presence of Union representation to discuss the following allegations: (l) That you are failing to maintain acceptable attendance; and further ( 2 ) That you have failed to co-operate with management in improving your attendance. Deputy Superintendent Connie Ma~affy conducted the meeting on February 28 which was attended by Hr. Ellison, ·the grievor and Union representative Robert Bujeya. Ms. Mahaffy has been chairperson of the Attendance Review Committee since February 1990 but testified that this meeting had nothing to do with the regular attendance review process. The grievor's attendance record was reviewed and he was "strongly encouraged" to improve his attendance in 1990. Ms. Mahaffy also testif ied that she advised that the legitimacy of the grievor's numerous illnesses was not in question. At the meeting, the grievor signed the medical release form prepared by the Employer after reviewing it with his Union representative. Mr. Miller also reviewed a list of accompanying duties which was to be sent to the physician. 6 The deputy superintendent sent a letter to the grievor dated March 8, 1990 (Exhibit 3 - pp. 5-6) outlining the allegations against him and what had transpired at the meeting. The letter erroneously referred to the number of days the grievor was absent from 1987 to 1989 rather than the credits used. The letter read in part: Notwithstanding your cooperation at the hearing~ it is clear that you did not comply with the direction provided by Mr. G. W. Pickering in his January 31, 1990 memorandum to you. Specifically, Mr. Pickering had instructed you to submit your letter agreeing to release the results of your medical examination to Hr. R. Ellison before February 8, 1990, in order that arrangements could be made for an appointment at no dost to you. . On February 15, 1990, Mr. Ellison interviewed you in his office in order to ascertain whether or not you were going to reply to Mr. Pickering's memorandum. ·Ultimately, you left Mr. Ellison1s office without providing an answer to his question. I am sure you can appreciate that, in a busy correctional institution, "cooperation delayed" is tantamount to "cooperation denied". You are hereby counselled and I expect that, in future, you will cooperate in a timely manner and that you will not come before me again on such an issue. The deputy superintendent convened a second meeting on April 23 with the grievor in the presence of Union representation to review the findings of the medical report. The grievor's physician Dr. 1- Teitelbaum had forwarded a report dated March l3 that concluded that the grievor was in good physical condition and the prognosis for future attendance was excellent. At the meeting the grievor agreed to maintain a satisfactory attendance record in the future. Ms. Mahaffy sent a letter to the grievor dated April 25, , 7 1990 (Exhibit 3 - pp. 8-9) which reviewed the highlights of the meeting of April 23. The letter concluded with the statement: "Furthermore, I advised you that" should your attendance not improve, but continue to reflect sporadic absences, another meeting would be held at which you would be given a final warning to improve-your attendance. Failíng to improve your attendance after the final warning could result· in dismissal. -On April 25, 19901 the deputy superintendent prepared Exhibit 4, an Employee Disciplinary Report, which specified the two allegations against the grievor. The report characterized the actio~ taken on the second allegation as tlcounsellingtl. Under the first allegation, Ms. Mahaffy made the following notation under "Disciplinary Action Takenlt: Mr. Miller was informed of management's expectation that he maintain a satisfactory attendance record and was· adv i sed that, if his attendance· did not improve but continued to reflect sporadic absences, another meeting would be held at which he would be given a final warning to improve his attendance. Exhibit 4 was placed on the·grievor's personnel file as was all of the documentation contained in Exhibit 3. To understand the dispute between the parties requires ,some background information. Superintendent Phillipson issued a written memorandum on October 14, 1987 entitled ItAttendance Review Process" (Exhibit 5). The purpose of the memorandum was to clarify the mandate of the Attendance Review Committee. The memorandum stated 8 that the objective of the Committee was to promote and encourage satisfactory staff attendance and to identify employees whose absenteeism "meets or exceeds institutional standards II. The memorandum went on to identify a four step procedure which IImay be imp1ementedlt in cases of excessive absenteeism - from an initial meeting between the employee and his supervisor to a final meeting between the employee and the superintendent or his designate where a number of options would be considered including the scheduling of a medical examination. In December 1988, Mr. Miller filed a grievance which in essence was an attack on the 1987 attendance review process. That grievance was subsequently settled pursuant to a Memorandum of Settlement dated April 7, 1989 wnereby the parties agreed to review. the current attendance review process. Discussions took place on a number of occasions in 1989 between management at Metro West·and the Union Local and although a new draft policy was prepared by Mr. Phillipson and discussed, no concensus was achieved. Subsequently, many months later, on July 27, 1990 a new Attendance Policy and Review Process (Exhibit 6) was issued in writing. A new comprehensive four step attendance review procedure was implemented which appears to provide a progression of steps with the right of Union representation culminating with a number of options including a mandatory medical. The new procedure contains a medical release form (Appendix F). -- --" . I 9 The thrust of the grievor's testimony was to the effect that the Employer failed to follow its own procedure by not conducting Steps 2 and 3 and insisting that the grievor write a letter to the Ef!1ployer. The grievor maintains that only the Step 1 procedure was held in July of 1989. Based on the evidence of both Mr. Miller and former Local Union President Dan Beattie, the Union maintained that the new Attendance POlicy and Review Process was in effect· at the end of December, 1989. On the other hand, Mr. Phillipson disputes that contention and maintains that the revised Policy became effective the date it was issued, namely, July 27, 1990. The Employer maintairis that its actions were justified in arranging a medical examination under Article 52.9 based on the grievor1s poor attendance record. Mr. Benedict argued that management's response by way of letters placed on file was non- disciplinary. Alternatively if. found to be disciplinary, the response was justified. On the second matter, the attendance grievance, the Employer contends that the issue is inarbitrable and in support relies upon Cloutier and Ministrv of Revenuel 20/76 (Beatty) . . The Union argued that the grievor's intent was to insist on his rights and with no real evidence of failure to co-operate, the Employer's response was disciplinary and that the.re was no just cause. for discipline. On the attendance grievance, Mr. Wright contended that there was an estoppel based on the Employer's 10 representation that the new policy was in place. He urged the Board to place the grievor at Stage 1 of the Attendance Review Process. In the alternative, the Union contended that under the Attendance Review Process, management has a discretionary power which it exercised in a discriminatory fashion. In support, the Board was referred to the following authorities: OPSEU (Drew et all and Ministry of Correctional Services, llOI/87; (Barrett) , OPSEU (Edmond W. O'Kee.ffe) and Ministry of Correctional Servicesl 111/82 (Draper); Re Riverdale Hospital and Canadian Union of Public Employees, Local 79 (l985), 19 L:A.C. (3d) 396 (Burkett); Re Felec Services Inc. and 1. B . E . W . , Local 2085 (l986), 28 L.A.C. (3d) 440 (MacLean) ; Re Firestone Steel Products of Canada and United Automobile Workers, Local 27 (1975), 8 L.A.C. (2d) l64 ( Brandt) ; OPSEU (Baars et all and Ministry of Culture· and Communication, 457/90 (Stewart); and OPSEU (Ford) and Ministry of Transportation and Communications I 1528/87 (Wilson) . There is one disturbing feature about this case. There was substantial conflict between the testimony of the grievor and Superintendent Phillipson as to what transpired in a meeting on January 12, 1990, when the superintendent challenged the legitimacy of the grievor's absences in 1989. However, the evidence established that the superintendent did not share those concerns with the deputy superintendent. Rather she based her proceedings on the stated premise that management did not question the legitimacy of the grievor's absences. In our view, on the evidence ¡ - , 11 adduced, the conversation between the superintendent and Mr. Miller is irrelevant to the matter before me and will be given no further consideration by the panel. The first issue is whether the lé~ters contained in Exhibit 3 can be properly characterized as disciplinary. In OPSEU (Hamblin) and Ministry of Correctional Services (Samuels), 63/82 and 68/82 the Board reviewed arbitral jurisprudence on the nature of discipline and established the following guidelines: a. The character of a communication cannot be judged simply by the title it is given by the Employer. The critical consideration is the substantive effect of the letter or note. b. 'A disciplinary communication is one which is intended to punish·or chastise the employee for failure to perform properly. In a system of progressive discipline, one will often see a very' minor disciplinary response to a failure, followed by progressively more severe responses to the same or similar failures of performance. Thu s , the first. disciplinary action, though very mild, has significance beyond the immediate purpose, because more severe discipline can be built on the first for further such failures of performance. c. A non-disciplinary communication may counselor recommend certain conduct to the employee, but it has no significance for future discipline. In other words, a non-disciplinary communication cannot prejudice the employee. A similar approach was taken by Vice-Chairperson Barrett in the Drew case, supra. - r On the basis of the test in the Hamblin case, we are satisfied that the correspondence was designed to chastise the grievor for 12 perceived failure to perform properly and would prejudice employee in any similar failure of performance. Accordingly, we must characterize the response as disciplinary. The filing of a Disciplinary Report would tend to confirm the panel1s conclusion. The second issue is whether there was just cause for discipline. There is no doubt that the grievor had an unacceptable attendance record which was bound to concern the Employer. The grievor1s usage of 66.25 credits in 1989 greatly exceeded the correctional officer average for that year of 15.7 credits. It is qu i te _ understandable, we think, that the Employer would want to exercise its right under Article 52.9 to require the grievor to submit to a medical examination. The problem in' this case appears to be the manner in which that. right was exercised. Apparently at the time there was no medical release form in common usage at Metro West. Mr. Pickering requested a letter from the grievor agreeing to release the results of a medical examination in the belief that the grievor was fully prepared to co-operate. We are satisfied that the grievor was willing at all times to co-operate on the assumption that proper procedures would be followed. The grievor, however, viewed the request to submit a letter as improper and contrary to the new Attendance Policy and Review Process. Obviously, there was a substantial delay in complying with the " 13 reqÙest for a medical examination. In our view, the delay was caused by a genuine misunderstanding on the part of both the grievor and the local Union that the new Attendance Policy was in effect. However, the revised Policy was considered over a l5 month period and was not implemented by Superintendent Phillipson until July 1990 when it was circulated in the form of a . memorandum. Accordingly, at the relevant time, the Employer was under no obligation to follow the old four step process then in effect. Given the unusual circumstances, and given the apparent wide-spread misunderstanding, we find that there was no just cause to impose any form of discipline upon the grievor. In the result, we allow the discipline grievance (GSB File #703) and order that the letters contained in Exhibit 3 be removed from the grievor's personnel file with the exception of page 1, the original letter from Mr. . Pickering. We further order that the Employer shall be allowed to substitute a new letter, without disciplinary connotation, which explains the reasons for the grievor's 1990 medical examination. In the second grievance, Mr. Miller alleges a violation of the collective agreement in respect of attendance and by way of settlement requests that he be placed at step 1 of the Attendance Policy and Review Process. Any alleged contravention of the . collective agreement, of course, is arbitrable under 5.19(1) of the Crown Employees Collective Bargaininq Act which provides for the resolution of tldifférences.....arising from the interpretation, application, administration or alleged contravention of the 14 agreemen t II . In the instant matter, it cannot be said that the Employer violated the provisions of either Article 52.9 or 52.13. In our opinion, this is not a case for the application of estoppel in the absence of a clear representation by the Employer that the revised policy was in effect at the relevant time. Similarly, this is not a case for the review of the Employer~s discretionary power. In the result, the attendance grievance is dismissed. The Board shall retain jurisdiction in the event of any diffic~lty encountered in the implementation of this decision. DA TED at "'Toronto . , Ont~rio, this 6th day of June . , 1991. :\-=.-£- --~ ~-- . -.,.?' . .. ........ ~ . ........ ,. ................. R. L. VERITY, Q.C. /'·VICE-CHAIRPERSON ~ J. CARRUTHERS - MEMBER "I Dissent" (partial dissent attached) . . . . . . . . . . . . . . . . . . . . . " . . . . . . . . . . . . . . . D. CLARK - MEMBER . ~ ~ PARTIAL DISSENT G.S.B. #703/90, 705/90, 706/90 OPSEU (Miller) and The Crown in Right of Ontario (Ministry of Correctional Services) I have no hesitation whatsoever in agreeing with this Panel's decisión regarding the second grievance (GSB #706/90). However, with all due respect, I felt that the Employer .had just cause for discipline in the first grievance (GSB #703/90) and accordingly, I would have dismissed the grievance. . £L ....f ./ -~ .'4 . /' / ,. .~~- ..(~t. Don M. Clark, Member