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HomeMy WebLinkAbout1990-0885.Black.90-12-03 '- " ~. I ;' ONTARIO EMPLOYÉS DE LA cOURONNE ~ CROWN EMPLOYEES Oft 'ONTARIO 1111 GRIEVANCE COMMISSION DE , SETTLEMENT REGLEMENT BOARD DES GRIEFS .180 DUNDAS STREET WEST, SUITE 2100, rORONTO. ONTARIO. M5G IZ8 TELEPHONEITÉLÉPHONE: (416) 326-1388 180, RUE DUNDAS OUEST, BUREAU 2100, TORONTO (ONTARrO), MSG lZ8 FACSIMILEITÉLÉCOPIE .- (416) 326- 39$ 885/90 IN THE MATTER OP AN ARBITRATION under THE CROWN EMPLOYEES COLLECT:IVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN OPSEU (Black) . Grievor - and - The Crown in Right of Ontario (Ministry of Revenue) Employer BEFORE: N. Dissanayake Vice-Chairperson E. Seymour Member M. O'Toole Member FOR THE w. Yenson GRIEVeR Counsel Gowling, Strathy & Henderson Barristers & Solicitors FOR THE i<. Cribbie EMPLOYER Labour Relations Officer. Personnel Services Branch Ministry of Revenue, HEARING: November 1, 1990 T1 ~ 2 DECISION The grievor, Mr. ColI ,'Black, a senior auditor, grieves a memorandum dated April 11, 1990, issued to him by Mr. E.J. Canessa, the Regional Audi.t Manager Cent,ral Region of the Retail Sale~l; Tax Elranch, as being unwarranted and unjust. The memorandum in questi.on reads as follows: This is to conf inn the meeting hEÙd with you, on April 6, 1990, in 'the presEmce of your manager, M. Ratansi and B. Ababio, union representative regarding an incident on March 21, 1990, whereby you refused 1:0 follow an instruction given to you by your manager. You agreed that you had done so and e~cplained that it was done because you 'were angry and it was the heat of the moment that lead you to act the way you did. You agreed that it was a mistake and apologized for it. I accepted that, but emphasized the seriousness of ,,,hat you had done and that any future incident of this nature will be considered insubordination and appropriate disciplinary action w'ill be taken. Another issue that was discussed was signing yourself out in advance rather than calling from the vendor after you get there. You explained that the written' ins,tructions on this matter in the administration manual do not require this procedure. I reiterated that regardless of how you interpret. the written instruction, you are to follow your managers instruction which is that you are to sign yourself out in advance. This principle would apply in any other situation where you do not agree with the instruction gi.ven by your manager. You are to follow the instructions and then take any action you: may wish to take thereafter. ~1 . t I 3 I At the commencement of the hearing, Counsel for the Employer raised a preliminary objection to tlie arbitrability of this grievance. Specifically, the Employer took the position that Mr. Canessa's memorandum, I was not disciplinary in nature but simply documentation I of a meeting wherein the Employer communicated its concern regarding the grievor's conduct and laid out what is expected of him in the future. Mr. Canes sa testified on behalf of the Employer. The grievor and Mr. William Ababio, the ' union representative who was present at the meeting on April 6, 1990, testified on behalf of the Union. The grievor was invol ved in an incident on March 21, 1990, where he refused to follow the instructions of his manager. On April 6, 1990 Mr. Canessa expressed his wish to talk to th~ grievor about this incident. The grievor requested Mr. Ababio to accompany him. It was the understanding of everyone that it was going to be Ita fr iendly chat n . When Mr. Ababio met with the grievor prior to the meet~nq the grievor admitted that he, had refused to follow management's instructions. Mr. Ababio advised the gr ievor to settle this matter amicably by tendering an apology, rather than let it develop into a I I . > í.. 4 disciplinary matter. As the memorandum indicates the grievor did exactly that. The 9rievol~ testified thalt he was familiar with the Employer's practice to· inform an ; employee that he was being disciplined, if that was indeed the purpose of the meeting.: III this instance, the grievor was not told that he was being disciplined. While he was not expressly informed that it was not a disciplinary meeting, Mr. Ababio testified that it was a friendly discussion and that at the end of the meeting, as far as he was concerned that was the end of the matter. From his experi.ence he did not expect the meeting to be documented and was somewhat surprised when ~ the grievor brought the memorandum to his attention a few days .;Later. Mr. Ababio assured the grievor that it was probably just minutes of the meeting. He later inquired from the grievor's group manager, who explained that the me~orandum was not a disciplinary matter but merely intended "to confirm what we had talked about". The grievor was not satisfied with the assurances. He testified that when he went int,:) the meeting he understood it was going to be friendly chat to air both sides of "an unfortunate incidentU and that no further action will follow. He did not expect a documentation of the meeting and was quite surprised when he received the memorandum. It was clear from his testimony that " ~/~ " e I .:~ 5 the grievor had no complaint whatsoever with regard to the conduct of the meeting itself. He was quite . satisfied at the conclusion of the meeting. what troubles him is the documentation of the meeting by way of a memorandum. He te'stified that he felt that 'the memorandum was "just a f~rther case of taking some not too important incident and blowing it out of proportion". He characterised the memorandum as a form of harassment rather than counselling. Mr. Canes sa testified that he does not document all .non-disciplinary discussions he has with employees. In . this case he decided to document it because he felt that refusal to follow management instructions is a serious matter and he wanted to ensure that the grievor understood what was expected of him in the future. He assured the Board and the grievor under oath that the memorandum was merely intended to confirm the discussion for the grievor's guidance, that it was not' intended to be disciplinary and will not be relied upon as a basis for future discipline. The evidence is that the Employer's normal procedure is to place a copy of any disciplinary letter ·in the employee's personnel file. This memorandum in " question was not placed in the grievor's personnel file. . --, , 6 I Moreover, under cross-examination, Mr. Canessa agreed I I that there may be some merit to the grievor's allega-tion i , I that some of the contents of the memorandum may not be , I quite accurate in that they :ruay have to be qualified by other facts. Therefore he openly stated 'that he was prepared to physically destroy the mE~morandum to allay the grievor's concerns. It ,is common ground that this grievance is arbitrable only if the me:]Qorandum in question can properly be characterised as tldiscipline". This Board, I while granted jurisdiction over disc:iplinary matters, . . I has no overall power of revie" of xnanagement interaction with its employees. I As the Board said ìn Re Naik,' 10.3/77 (Swìnton), at page 4: Only if the warning will ha ve~l prejudicial effect on the employee's position in future grievance proceedings, in the sen.se that it is being used to build up a record against the employee, can it be characterized as disciplinary action. In this case, the memorandum ort its face is not disciplinary, in that it does net purport to punish the griever for his conduct on March 21, 1990. The evidence about what occurred at the meeting clearly is that the I . !, r /, ,~ i I 7 Employer expressed concerns about the grievor's conduct on that day and explained to him that he should not' engage in similar conduct in the future. The fact that the employer emphasised that any future incident of this nature will be considered insubordination and , . appropriate disciplinary action will be taken (a fact confirmed in the memorandum) by itself does not make the meeting or the memorandum disciplinary in nature. The memorandum was not placed in the grievor's personnel file. Given the Employer's practice, that by, itself will prevent reliance on the memorandum as a record of ~iscipline'in the future. If the grievor had any doubts - at all that ~ the memorandum will have a prejudicial effect on his position in future grievances, the offer to destroy the memorandum altogether should have put them to rest. In Re Fitzqerald 1489/ 88 (Samuels) the Board stated as follows at p. 3: In our view, once the Ministry says clearly that the memorandum is not disciplinary, then it is not disciplinary. Such a statement by the Ministry has the effect of ensuring that the memorandum cannot be used in any subsequent disciplinary action as evidence of previous discipline. For disciplinary purposes, the memorandum can serve only to show that the grievor was told that certain conduct is unacceptable. It is evidence that he was made aware of the employer's rules. But the memorandum cannot be used to show that the employee did anything wrong. This is similar to the situation . ~ . 8 ; before the Board in Bacchus, 911/88 (Watters), I where the Board held that the Ministry is bound by its own commitment that a memorandum is not disciplinary (at page 4) . In the case at hand the Employer not only made a , I clear undertaking that the mennorandum will not be relied I upon for future discipline, but offered to physically destroy it. In the face of these circumstances it is clear to the Board that the 'memorandum does not constitute d~scipline. WhilE~ some employees, like the grievor, may not like verbal or written communication by supervisors about their conduct or performance, the Employer does have the . r i.ght :to correct employees through guidance, counselling or eVE!n warning without engaging in disciplinary action. ThE~ exercise of that rig:ht is to be encouraged rather than discouraged. On the other hand, the Board can understand the concern of an employee that a document may be used against him in future disciplinary situations despite verbal assurances to the contrary. This may well be possible if there is a turnover in management. The Employer could probably have avoided this concern if it stated. in the memorandum itself that it does not constitute discipline. The Board finds that the memorandum in question does not constitute discipline and that as a result we . ~, - " '- '~ 9 do not have jurisdiction to entertain the merits of the' I grievance. Therefore the Employer's preliminary motion I is upheld. . I Dated this 3rd day of December 1990 at Hamilton, ; I ontario I ~ ~ . N. Dissanayake vice-Chairperson ~.~~ ¿:~4;r' ~.- E. seymour Member . m.~, () k7~ - H. O'Toole Member .