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HomeMy WebLinkAbout1990-0979.Czekierda.91-01-04 " <- J. ,- -~ ''- It} . EMPLOYÉS DE LA COURONNE .!,,~ ". ONTAR)O CROWN EMPLOYEES DEL'ONTARIO ~- .-- 1111 GRIEVANCE COMMISSION DE ~ SETTLEMENT REGLEMENT BOARD DES GRIEFS 180 DUNDAS STREET WEST, SUITE 2100, TORONTO, ONTARIO. MSG lZIl TELEPHONE/TELEPHONE: (476) 326-1 JBB 180, RUE DUNDAS OUEST, BUREAU 2100, TORONTO (ONTARIO). M5G lZ8 FACSIMILEITt:L£COPl€ .- (416) J26-139$ 979/90 IN THE MATTER OF AN ARBITRAT:ION Under THE CROWN EKPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN OPSEU (Czekierda) Grievor - and - The Crown in Right of Ontario (Ministry of Community & social Services) Employer BEFORE: M. Gorsky Vice-Chairperson I. Thomson Member M. O'Toole Member FOR THE V. Reaume GRIEVOR Counsel Cavalluzzo, Hayes & Lennon Barristers & Solicitors FOR THE J. smith EMPLOYER Counsel Human Resources Branch Ministry of Community & Social Services HEARING: November 9, 1990 . ",' . AWARD The Grievor, Alicia Czekierda, ,<Tho at all material times was a Residential Counsellor 2 at the Oxford Regional Centre located in Woodstock, Ontario. filed a grievance on May 30. 1990. The Grievor claimed payment for call back for Friday. April 27, 1990. Monday. April 30. 1990 and Wednesday, May 1, 1990, as provided for in article 14,1 of the collective agreement, which is as follows: An employee who leaves his place of work and IS subsequently called back to work prior to the starting time of his next scheduled shift shall be paid a minimum of four ~4} hours' pay at one and one-half (1-1/2) times his basic hourly rate. It was acknowledged by the Employer that the Grievor had been called back to work on April 27. 1990. in circumstances that entitled her to payment for call back pursuant to article 14.1. Although April 27. 1990 was one of the days for which call back pay was claimed in the grievance, r am satisfied that there never was any real dispute with respect to the Grievor's entitlement for call back pay for that day, It is. therefore, unnecessary to deal with the claim for call back pay tor April 27, 1990, except to note that the Grievor was. on May 10,1990. requested by the Employerto submit a claim for ca 11 back entitlement for Apri 1 27, 1990, but this has,not yet been done. The reason for the Grievor being called back to work on . . -\ " ~-........., 1<4 2 April 27, 1990 was to furnish information to W.J. Fenlon. the Assistant Administrator, Development Services at the Centre. concerning an incident alleged to have occurred sometime previously, where a member of the Centre's staff was said to have abused a resident. Mr. Fenlon testified that he had received a memorandum on April 27, 1990. dated the same date. from Mr. Hewitt, the Superintendent of the Centre, requesting that he lfiutißdiately commence a preliminary investigation relating to the allegations. Bob Leclair, who is also a Residential Counsellor 2 8.t tl-1Ô Gentre ¡ teôtified that he had submitted a letter to Carol Youngblood, the Superintendent's secretary, containing the allegations of alleged abuse, ~ .., - Penny Cunningham, Mr. Fenlon's secretary. placed telephone calls to the Grievor, Mr. Leclair and Joan Hill (another Residential Counsellor) requesting that they attend on My, Fen 1 on on Apri 1 27. 1990. She advised them that Mr. Fenlon was conducting and investigation with respect ,to alleged abuse of a resident, and he wished to obtain statements from them. Mr. Leclair testified that he was asked whether he could attend at 10:30a,m.. and replied that he could not do so but that he could attend at about 1:00 p.rn, Each of the Residential Counsellors referred to ( the Grievor, Mr. Leclair and Ms. Hi 11 ) were to be interviewed separately by Mr. Fenlon, at which time their individual , - n, .' , 3 statements would be taken. Originally, the Gr i evor intended to remain at the interviews of the other two :residential counsellors, in her capacity as a Union steward. Mr. Fenlon suggested to her that, in the circumstance!s, this might represent a conflict of interest, and it was then agrred that another Union steward, Terry Fink, who is a Maintenance I"Iechanic at the Centre would be summoned to attend. While waiting for Mr, Fink, Mr. Fenlon explained to the Grievor and the Counsellors that the situation was one that required a very careful investigation, and that there was considerable urgency in carrying it out as the outcome would determine whether the investigation could be continued internally - or whether it would have to be turned over to the Ministry's Chief of Investigations, Mr, Packard. Mr. Fenlon also explained that it was essential that each of the Residential Counsellors sign their individual statements, when completed. It was agreed that Mr. Fink would take notes of the interviews on behalf of the Counsellors in order that they could check the typed statements when completed. Mr. Fenlon was agreeable to this being done. He recorded the answers given during each interview and turned them over to Ms. Cunningham for typing. Before the commencement of the; interviews, it was believed that they could be transcribed. checked and signed on that date, I · , , r. I 4 Present at all of the interviews were Mr. Fenlon. Mr, Fink, Diane Manship. a member of the Human Resources Department of the Centre. There was some dispute as to whether Ms. Cunningham was present for the purpose of " taking minutes. r am satisfied that she was not, on the basis of her evidence and the evidence of Mr. Fink, who did not recall her being present. There was also some dispute as to the length of each interview, Mr. Fenlon believing that they took about an hour each, Mr. Fink, Mr, Leclair and the Grievor believing that they took between twenty and thirty minutes each. r do not believe that anything turns on how long the interviews took. I would note, however. that they started at about 1:30 p,m. and appear to have ended before 3:00 p.m.. when the Grievor's'shift for tha~ day commenced. The questions asked of each interviewee were the same and were prepared and asked by Mr. Fenlon, who recorded the answers. Mr. Fenlon gave his notes to Ms. Cunningham after the completion of all of the interviews with a view to having them typed out. reviewed and signed at that time. Ms. Cunningham indicated that she did not then have time to do so and. In response to an inquiry from Mr. Fenlon, stated that she would be able to complete ,the transcription of the interview notes on the next working day. I am satisfied that the Grievor was aware that the statements would not be typed until Monday. April 27, 1990 --.. . . ,- ,J was a Friday and th~ next working day was Monday, April 30, 1990. '[he only persons who were interviewed who gave evidence were the Grievor and Mr, Leclair. They testified that they concluded from Mr. Fenlon's statéments about the urgent need to complete the interviews that he wished to have the matter completed at the earliest moment by receiving their duly executed statements. At no time. however. was there a direct order given to any of the interviewees as to when 'they should return to check and sign their transcribed interviews, Tl'ìÌs quest ion was explored on numerous occasions during the course of adducing evidence and none of the witnesses testified that a direct order to return at a particular time was ever given. Mr. Fenlon emphatically denied ever giving slich'an or~er. The Grievor relied entirely on the sense of urgency transmitted by Mr. Fenlon for her returning to attend to matters relating to the execution of the statements on Monday, April 30. 199,0 and on Wednesday. May 2. 1990, The question that we have to decide 1S: Was the Grievoy "subsequently called back to work prior to the starting time of [her} next scheduled shift[s]." on April 30.1990. and on May 2. 1990. in accordance with article 14.1. That is: Can there be a call back without a specific order to come þack to work? Can there be an order arising from the circumstances of a case without the employee. the object of the alleged order. having been specifically instructed to do -. 1 " (". 6 something? If the situation was reversed and it was the Employer who was alleging that an order had been given which was not followed (in this case a call back). it would be necessary to ascertain whether there was a cormllunic:ation that w0uld indicate to the Grievor that she was expected t.o do something. There are a number of caees involving alleged insubordination where the question arose: Was there an order given by the employer to the employee? This question had to be asked because if there was no order than there could be no insubordination. No case was brought to our attention, nor have I been able to find one, that dealt with the case of an employee responding to an alleged order when none was intended by the employer, with the employee subsequently claiming that in responding to the order certain entitlements were owing to her under the collective agreement, Notwithstanding the difference between the two situations, they have one thing in comrnon. In both cases, a board of arbitration would have to find the existence of an order. In the one case, if there were no order found, either expressly or impliedly, then there could be no disobedi.ence. In t·h(~ other, if there was no order found, eithey expressly or impliedly, then there could be no claim under the collective agreement (in this case, for call b,,-ck pay), « " ", . 7 In the context of disobedien6e cases. Brown and Beatty. in Canadian Labour Arbitration 3rd Edition note. in para, 7:3612 at p. 7-11: "[T]he employer must prove ,that an order was in fact given" as one of the essential ingredients before it can discipline an employee for disobedience, Brown and Beatty also note ( ibid. ) : "In fact. even where there is no specific order addressed to the employee. if the arbitrator concludes that she must have been aware of the duties expected of her and refused to discharge them. discipl ine wi 11 likely be found to have been properly evoked." In the circumstances of the case before us. we see no different conclusion where we are dealing with an employee's claim that an order was given, rather than the same claim made by the employer. On the facts of the case before us. there is no doubt that there was urgency involved in carryiñçr out the investigation. _ Mr. Fenlon testified that there is no more jmportant matter affecting the operation of the Centre than rooting out instances of abuse of residents. This sense of urgency was clearly communicated to the Grievor and the other Residential Counsellors involved in the interview process. In this context, it would be possible to find that the Grievor was expected to respond to the climate of urgency by returning to work when she did in order to complete the process that was started by the interview: the checking and execution of the typed statement. . I · , '. "'----- .. \ q 8 As noted above. the Grievor was never told to come in when she did. I find that what she was told was that as the transcription of the notes taken by Mr. Fenlon could not be comp reted by Ms. Cunningham on Friday. the Grievor would be communicated with on Monday, when it was expected that the typiny would be completed. Mr. Fenlon testified that he never viewed the signing of the transcribed notes as being urgent. W1ìð, t he regarded as urgent was the taking of the statements from the Residentiôl Counsellors, In his mind. there was no intention to cause the Residential Counsellors who were interviewed to come into work other than qt their regular shift starting times when the transcribed notes could be reviewed and signed by each of them. He did not feel that it was necessary to specifically say this to the Counsellors because he had no intention of issuing an order. If he had Wished the Counsellors, inclUding the Grievo't, to attend on a call back. then he would have done so in the way that the call back of April 27. 1990 was arranged: by a specific direction to return to work on that date at a specific time. We are. however. not concerned with Mr. Fenlon's subjective state of mind. but with his objective actions. As has already been noted. the cases involving insubordination relate to situations were an employer claimed to have given an order and an employee denied that such an order had been given, wh i 1 e the case before us is the reverse situation. . ,-~~ ""..... ~ ! . 9 There are, however, certain principles whj,ch are common to both kinds of cases. Where it is unclear whetller an order ha,s been given, in the case before us, to return to work prior to the normal commencement time of an employee's shift, it is up to the employee to make inquiries to est.ablish whether such an order ha:s been given. On the facts of this case, the Grievor did not wait for a telephone call from Ms. Cunn i ngham te 11 j, ng her that the typ i ng of the statement had been completed and that she should attend on a call back. Rather, the Grìevor called Ms. Cunningham during the morning of April 30, 1990 to inquire ",hether the typed statement was ready, At that time the Grievor did not ask Ms. Cunningham whether she was required to att.end at work on a call back in order to review and sign the statement. She assumed tha.t this was what was being required even thol.;~gh Ms, Cunningham made no such request. Upon being told that the statement had been typed, the Grievor stated that she would be at work around noon. She arrived at work around 1:00 p.m. The Grievoir testified that she was then in the company of Mr. Fink and that they ,adjourned to a room in order to review the typed statement with Mr. Fink's notes. In fact. Mr. Leclair was also present. as he testified. I am satisfied that Mr. Fink had been communicated with by the Grievor and Mr. Leclair when h€~ was at work on April 30. 1990. in order that he could accompany '. .--.... j '\: I ... ..,,' . 10 them to review the typed statement. Upon a review of the statement, certain changes were found to be necessary and after a discussion with Mr. Fenlon. The statement was then corrected with the changes written in and handed to Ms. Cunningham at about 1:30 p.m. on Apri I 30, 1990, Ms. Cunningham indicated that she was then too busy to make the changes but stated that she could have the corrected typed statement ready on Tuesday, May 1, 1990. The Grievor and Mr. Leclair both indicated that they were unavailable on that date as they had to appear at an arbitration hearing before the Grievance Settlement Board on May 1, 1990. No time was established for the Grievor's attendance on Wednesday, May 2, 1990, for the execution of her statement. She assUmed. because of her view of the continuing urgency of the matter. that she should come in at the earliest moment and reported on Wednesday morning when she executed the statement. Her regular shift commenced at 3:00 p.m. on Wednesday, May 2. 1990, and she claimed that she was entitled to call back pay for that day as well. On the evidence, I find that although Mr, Fenlon had, on April 27, 1990. communicated to the Grievor and the other Residential Counsellors that he was dealing with an urgent matter. there were some clear indications that the Grievor ought not to interpret this a request to attend when she did on April 30, ,1990 and May 2. 1990. If the matter was of continuing . '\ ~ . 11 urgency after the taking of the statements on April 27. J. 990, why did Mr. Fenlon not insist that Ms. Cunningham work overtime 1n order to complete the statements? This is something that should have been apparent to the Grievor when she considered the question of urgency calling for a conclusion on her part that a call back was being requested. The Grievor testi fied that she w~mt from the interview to her regular shift which started at 3 p.m. on Friday. April 27. 1990. Mr. Fenlon testified. without his evidence being contradicted. that the Grievor would have been given time during a regular shift to review the typed statement and sign it. On all of the evidence. I accept Mr. Fenlon's view of the matter that he did not convey to the Grievor the same sense of urgency about having the statement signed as he did about obtaining the statement. At the very least, the Grievor had cause to consider whether the matter was as urgent after April 27, 1990, as it was on that date. so as to signify that sh~ should have attended at work when she did on April 30, 1990 and on May 2. 1990. without an express order. Not only was Ms. Cunningham not required to type out the statement on April 27. 1990. but two days were permitted to pass before she started the jClb, and this was to the knOWledge of the Grievor and Mr. Fenlon. On these facts, if the situation were reversed and the Grievor had not attended when she did on Monday. Apr i 1 29. 1990, I would not regard her conduct as being insubordinate. . ^¡ - ;; 'e......., I ...:l .' 12 Certainly, when the Grievor told Ms, Cunningham tha.t she could not attend to sign her typed statement on Tuesday. May L 1990, and Ms. Cunningham did not convey any sense of urgency to the Grìevor, even it we had found that the Grievor was entitled to call back·pursuant to article 14.01 on April 30. 1990, there would be no basis for making a similar finding with respect to May 2, 1990. We dÖ not, however. find that an order (express or implied) had been given to the Grievor which required her to attend on a call back basis on April 30, 1990. As in the case of a claim by an employer that an order had been given, it is not the subjective state of the employee's mind with respect to the giving of the order that is significant. The Grievor may. and probably did, honestly believe that an order had been given because of the circumstances in which the interview was conducted. What is important is whether a similairly situated employee, on the same facts, might have reasonably concluded that an order had been given. The most that we can find is that an employee faced with a similar set of circumstances might have had an honest subjective belief that an order had been given. However, because the implications were anything but ,clear. it was up to the employee to ask whether she was expected to attend at work on a call back basis. . ~< ~ ~ . -.."" . 13 If the burden of making inquiries was cast on the Employer. in the circumstances of this case. then Mr. Fenlon would be in an unenviable position having t~. in some way. guess the state of mind of the Griever. It is only cemmon sense that an employee, believing, from the context of a situation. that an order had been given, where a reasonable employee would be in some doubt as to the nature of the order, would communicate with the representative of management giving the "order," to'ascertain whether such an order had actually been given. The Grievor. here. did nothing to obtain clarification. and there was no further conduct on the part of the Employer which could have re- enforced the Grievor's mistaken belief that an order had been given. Cf.Re The United Automobile Workers. Local 636 and Holland Hitch of Canada Ltd. (1972) . 23 L,A.C. 378 (Brandt) at pp. 382-3, As noted above. we were assisted in arriving at our conclusion by the fact that if this were a case where the Grievor had been disciplíned for refusing to attend when she did on April 30. 1990 and May 2, 1990. and had grieved, we could not find the existence of an order which is a condition to a finding of disobedience. Although there could be a finding that an order had been given without a direct expression ~f that order. there were too many contraindications in this case to support such a finding. There being no order. there can be no claim for call back payments under article 14.01. ~ ;~ ." .A .. 14 Accordingly. for the above reasons. the grievance is dismissed, Dated at Toronto. this 4th "'¡.d.y 0 f January 1991 -~~~ M. Gorsky - Vice Chairperson (I DISSENTII) (Partial dissent attached) t. Thomson - Member : n· 5_, ()~- . 'Toole - ember ;, Partial Dissent RE: 0979/90 OPSEU (czeJtierda) and the cro'rm in Right of ontario (Ministry of community , social services) Prior to the commencement of the meeti.ng on April 27th, while: waiting for Mr. Fink to arrive, Mr. Fenton impressed on the grievor and the others involved of the urgency of obtaining their statements and signatures. (Page 3 of Award, 1st full paragraph). Upon completion of the interviews, Mr. Fenton and the grievor took the statements to Ms. Cunningham (Mr. Fenton's Secretary) tel have them drafted. She advised the parties she would be unable to complete them that day and they wouldn I t be ready until ]~onday. The Chairman concludes that, because Mr.. Fenton didn I t instruct the Secretary to work overtime the grievo:r should have known the emergency was over. I cannot accept this and I disagree the grievor should have come to this conclusion. The Chairman concludes that for "call-back" to apply there must be a direct order given. with great respect I disagree with this conclusion. I submit that at the time when Mr. Fenton was advised, the statement wouldn't be ready until Monday, he should then have t,old them the signatures were not important. He said nothing to correct the impression they had from the meeting of the urgency of ,the matter. When the grievor called in on the Monday to see if the statements were ready she could have been aclvised that there was no longer a urgency to sign. I would have allowed the grievance for Monday. I would disallow it for the Wednesday since she would have known by then that it was being treated as' a routine matter. '~/! , . / , ~i ~,c..-- ~-. J:-;;;;;;;------------- I