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HomeMy WebLinkAbout1990-1215.LeClair.91-06-27 -. v --. ( ~ ONTARIO EMPLOYES DE LA COURONNE I CROWN EMPLOYEES DEL'ONTARIO 11111 GRIEVANCE COMMISSION DE I ~ SETTLEMENT REGLEMENT BOARD DES GRIEFS 180 DUNDAS STREET WEST, SUITE 2100, TORONTO, ONTARfO. M5G lZ8 TELEPHONE ¡TELEPHONE: (416) 326-' 388 I 180, RUE DUNDAS OUEST, BUREAU 2100, TORONTO (ONTARIO). MSG lZ8 FACSIMILE¡TÉL£cOPIE. (416) 326-1396 1215/90, 1379/90 , IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN OPSEU (LeClair) Grievor - aDd - The Crown in Right of ontario (Ministry of Community & Social Services) Employer - BEFORE: S. stewart Vice-Chairperson M. Lyons Member D. Walkinshaw Member ., FOR THE M. wright GRIEVOR' Counsel Cavalluzzo, Hayes & Shilton Barrister & SOlicitors FOR THE S. White EMPLOYER Counsel Legal Services Branch Ministry of Community & social Services HEARING: February 6, 1991 March 19, 1991 , ~. DECISION In grievances dated April 24, 1990 and July 12, 1990, Mr. B. LeClair alleges that he was disciplined without just cause. It was the Employer I s po::;ition with respect to the April 24, 1990 grievance that no discipline had been imposed and, accordingly, the ma'tter was not arbitrable. It was acknowledged by the Employer that the July 12, 1990 grievance arose from a matter th.at was disciplinary in nature however it was the Employer's position that the discipline that was imposed at that time, a letter of warning, was for just cause. It was the Employer's position that it was unnecessary for the Board to hear evidence to determine whether the April 24, 1990 grievaI1ce related to a matter that was disciplinary' in nature. It was the Union 1 s position that it would bE: necessary for the . Board to hear the evidence prior to such a determination. The Board I s rUling was that it would hear all of the evidence prior to deciding the issue of ~mether the April 24, 1990 grievance arose from a matter that was disciplinary and hence arbitrable. Mr. LeClair is employed at the OXford Regional Centre as a residential counsellor, classified as a Residential Counsellor 2. He has held that position since September 21, 1981. He works a compressed work week, generally working 7:00 a.m. to 7:00 p.m. or 7:00 p.m. to 7:00 a.m. ·. ¡ ~ 2 Mr. LeClair1s supervisor is Ms. C. Craig. Ms. Craig generally works from 8:00 a.m. to 4:00 p.m. In the residences, day to day supervision is provided by persons classified as Residential Counsellors 3 (who are members of the bargaining unit) or Residential Counsellors 2 who have been designated in charge. Mr. LeClair lives in Aylmer. He testified that it takes him forty to forty-five minutes to drive to work in good weather and approximately an hour to drive to work . when the weather is inclement. Mr. LeClair stated than in , 1987 he had been late on six occasions due to child care problems. This matter was referred to in his performance appraisal at that time as an area for improvement. From that time until the spring of 1990 Mr. LeClair did not experience any difficulties in attending work punctually. There is no dispute that Mr. LeClair was late for work on three occasions in the spring of 1990. On the first occasion, April 4, 1990, Mr. LeClair was two hours and fifteen minutes late for work. On April 23, 1990 he was ten minutes late. On June 18, 1990 he was fifteen minutes late. Mr. R. Reeves, a Residential Counsellor 3 who works in the same residence as Mr. LeClair, gave evidence as to how . , ,.' 3 lateness was dealt with. He stated that if a per~on were ten to thirty minutes late with a reasonable excuse, such as a snow storm, the matter would be dealt with by a person on the earlier shift staying late. In his experience, no disciplinary sanctions were.invoked in those circumstances. Ms. A. Czekierda, a Residential Counsellor 2 who has worked in a number of different residences since 1976, testified that in her experience, employees who are ten or fifteen minutes late and provide a reasonable excuse for their lateness are not disciplined by the Emplc~er. Ms. Craig stated that she considered all lateness to be unacceptable. . However, she acknowledged that there ~ere! circumstances beyond the control of individuals such as! weather conditions and motor vehicle problems whi.ch provided a reasonable excuse for lateness and did not warrant '- discipline. On' April 4, 1990, Mr. LeClair was scheduled to commence work at 10:00 a.m. Be had attempted to ëlr:range to have the day off because he would be returning home late the previous day but he was unable to make that arrangement. Howeve r , he was able to arrange to start work at 10:00 a.m·1 somewhat later than his usual star1:ing time. Mr. LeClair slept in that morning. He was a\.¡akened by a telephone call from Ms. Craig at approximately 11:15 a'-m. Mr. LeCl~ir stated that he travelled to ''lark as quiCkly as '. ) ~ i I I , I I ì I 4 possible anb arrived there at approximately 12:15 p.m. It was ~omrnon kround that Ms. Craig spoke with Mr. LeClair I It was arranged that Mr. LeClair's about the matter. vacation crldits would be adjusted to account for his I lateness. Ms. Craig stated that she did not believe that Mr. LeClai~ provided a reason f~r his lateness however he I I could also not recall if she asked him what the reason was. I She stated ¡hat he sounded like he had just woken up when she spoke with him on the telephone so she assumed that he 'had oversle~t. Mr. LeClair testified that he did not think he did eXPl~in why he was late but he that he did apologize toMs. crai~. Ms. Craig stated that she advised Mr. LeClair thak he was being warned with respect to his I lateness. She stated that she told him that he was not being disci~lined but that his lateness was unacceptabie. I I I i Mr. Lec'lair was scheduled to commence work at 1:00 p.m. I on April 23[- 1990. Mr. LeClair testified that the reason that he was ten minutes late for work was that his daughter I I t She was had been reluctant to be dropped off at day care. I I returning ~o day care after being away due to illness. She i had been a~ home with Mr. LeClair in the morning. Mr. I I LeClair stated that he knew that he was behind schedule \ when he le~t the day care but he did not telephone to say I I that he wou,ld be late because he thought that he could make up the timel. Mr. LeClair was unable to make up the time , I I I i ~ . 5 and he was ten minutes late for work. There is no real dispute in the evidence as to certain aspects of what transpired in the discus::lion between Mr. LeClair and Ms. Craig that day. Mr. LeClair's recollection was that he explained the reason for his lateness to Ms. Craig. Ms. Craig was unable to recall whether or not an explanation was provided. It was common ground that Ms. Craig referred to Mr. LeClair's lateness on April 4, 1990 and that she advised him that he was "at the second f?tep" and was receiving a verbal reprimand as (l result of his lateness on April 23, 1990. ThE~re was also a review and discussion about the Ministry I s written ntandards of conduct and Ms. Craig advised Mr. LeClair that if he were late a~a'in he would receive a written reprimand. Ms. Craig recorded these events and filed the record in a file that appears to relate to general matters in connection with the residence in which Mr. LeClair worked. No copy of this record was provided to Mr. LeClair nor was a copy of the record forwarded to his personnel file. Ms. Craig stated that when she advised Mr. LeClair that tJle next step would be a written reprimand she described the next step as discipline. Mr. LeClair denied that the next step was characterized by Ms. Craig as the first level of discipline. Mr. LeClair stated that he felt that he had been dis~iplined in-the meeting and, acc-ording1y, filed the ~ .. I " ~ - '¥ 6 grievance dated April 241 1990. On June 181 1990, Mr. LeClair was scheduled to work from 7:00 p.m. to 7:00 a.m. Mr. LeClair testified that he ~s fifteen minutes late that evening as a result of slow traffic due to construction on the 401. He stated that he was directed off the highway by an opp officer and at that I point he left the 401 and travelled to work on a secondary \ road. Mr. LeClair testified that when he arrived at work 1 he explained what had happened and apologized to Gloria Dennis, ·the employee who had stayed late for him. Mr. LeClair obtained an overtime form for Ms. Dennis although the eVidencl established that overtime ~as not claimed by l' .1 h ' 'd'd l" emp oyees 1n t ese C1rcumstances. Ms. Denn~s 1 not c a~m the overtiml. Mr. LeClair prepared and left a note for Ms. Craig attacAing the overtime form and advising her that he was fifteen minutes late for work on June 18, 1990. The explanation that he provided was: liThe 401 was closed at Embro Road 6 and the traffic was backed up to the ~utnam Rd. II Ms. Craig testified that when she received the note ! she spoke with Ms. Dennis and asked her if Mr. LeClair had provided an explanation for being late. Ms. Dennis told , her that he had not. Ms. Dennis was called by the Employer and she testified that Mr. LeClair did nqt provide her with . .' - . ~ 7 an explanation as to why he was late for '¡,o¡ork that evening. In examination-in-chief she also stated that he did not provide her with an apo logy. In cross-examination she maintained that he did not provide her with an explanation hOllleve r , she aCknOlllledged that Mr. LeClair did apologize to her for being late. Ms. Craig stated that she was suspicious about Mr. LeClair·s explanation because of Ms. Dennis· statement and the fact that she had heard nothing of the traffic problem in spite of the fact that she lives close to'the 401 and Embro Road. Ms. Craig testifi~d that she telephoned the Woodstock opp and asked the person who answered the telephone if there had been a closure of the highway or a traffic slowdown on June 18, 1990. That person advised her that she did not know but that she would check. That person then returned to the telephone and-told her that there were no such problems as far as ShE:! was aware. There was no objection to the admissibility of ~his evidence. Mr. LeClair was not confronted with 1:.his information, although it appears that he became aware of it during subsequent discussions between the parti,::!s. This matter apparently prompted Mr. LeClair to make l1is own inquiries of the Ministry of Transportation. The Union provided the Board wit~ a letter-dated December 14, 1990, from Mr. R.T. '~ " ~ 8 Hue, Area Construction Engineer with the Ministry of TransporJation. The relevant portion of this letter states I as follows: J I ' On Friday June 15 and Monday June 18, 1990, our cont*actor was working on the excavation and baCk~illing of the median shoulder on Highway 401 in the eastbound lanes between Ingersoll and 1 Woodstock. Hours of work on the 15th were from 6:30 a.m. to 1:30 p.m. and on the 18th from 6:30 a.m. to,7:00 p.m. I cannot be specific on the times of any traffic slow1ups or bàck-ups, but suffice it to say that the area in which the contractor was working was 1 reduced to one lane and back-ups were not uncommon. This infJrmation was not provided to the Employer prior to . I, h h' h b" ~ts presentat~on at t e ear~ng. T ere was no 0 Ject~on to the intr¿duction of this evidence. , After her discussion with the Woodstock opp office, Ms. Craig debided that discipline should be imposed on Mr. LeClair lnd prepared a letter dated June 26, 1990. The I ^ text of this letter states as follows: In ~ three month period, April 4, 1990 to 1 . June 18, 1990, you have reported to work bet*een 10 minutes and 2 1/4 hours late on 3 I . occas~ons. I On April 23, 1990, we discussed your punctuality, andlat that time you were reprimanded and informed tha~ your tardiness was unacceptable and would result in disciplinary sanctions in accordance with the 1 Standards of Conduct. I. h' . d you subsequently reported Desp~te t ~s repr~man , late on June 18, 1990. ,I b h" bl " Th~s e av~our ~s unaccepta e. Your start1ng t~me is as scheduled. You are required to report at that . I· tJ.Itte. ~ 9 This formal reprimand is to advise 'that failure to improve your punctuality from tomorrow on will subject you to further disciplinary action up to and including dismissal. As previously noted, Ms. Craig acknolflledged that there were circumstances beyond the control of an individual that provide a reasonable excuse for lateness. Ms. Craig agreed in cross-examination that she would not impose discipline on employees if they were late for work by fifteen minutes due to circumstances beyond their control. She further agreed that she would not have imposed discipline on Mr. LeClair in connection with his lateness on June 18, 1990, if she had believed his reason for being late. Ms. Craig also agreed in cross-examination that if Mr. LeClair had not been given a verbal reprimand on April 23, 1990, he would not bave been disciplined as a result of his subsequent lateness on June 18, 1990. The first issue that must be deterrdned is whether discipline was imposed on the grievor on April 23, 1990 as a result of his lateness on that date. Counsel referred the Board to a number of decisions of the Grievance Settlement Board and ,other arbitration boards dealing with the basis upon which discipline can be distinguished from counselling. These decisions attempt to deal with the competing concerns of ensuring that an E!mployee has the opportunity to challenge a matter that nl.aY have an impact , ~ Ii \ - ' I { - . . . 10 on his employment yet ensuring that every communication in which the employer attempts to provide guidance to an employee does not become the subject of a grievance. The relevànt considerations are canvassed in Ministry of Correctional Services & OPSEU (Hamblin) (Samuels) 63/82. That decision refers to Brown & Beatty Canadian Labour Arbitration, which, in the current edition, states the following with respect to the arbitrability of oral warnings at p. 7-156: ... oral warnings or reprimands are generally not to be regarded as disciplinary inasmuch as they are not'documented and because, to hold otherwise, would clog the grievance procedure with the resolution of ~elatively inconsequential infractions. However, . should evidence be adduced that such verbal warnings were intended to form part of an employee's record, they may be charact~rized as being disciplinary in nature. After reviewing the approach taken by this Board in Cloutier, 20/76; Naik, 108/77, .and Zuibrycki, 425/81, the Board stated in Hamblin, supra, as follows: While the e~pressions of view are somewhat disparate, the best view seems to be as follows: a. The character of a communication cannot -be judged simply by the title it is given by the ·Employer. The critical consideration is thè substantive effect of the letter or note. b. A disciplinary communication is one which is intended to punish or chastize 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 progressiv~ly more severe responses to the same or similar failures of performance. Th'us, the first disciplinary action, though very " e ~ ,., 11 mi ld, has significance bE~yond the immediate purpose, because more severe discipline can be built on the first or further such failures of performance. c. A non-disciplinary communication may counselor recommend certain conduct to the ~!mployee. but it has no significance for future di:;cipline. In other words, a non-disciplinary communic~ation cannot prejudice the employee. While Ms. Craigts concerns about Mr. LeClair1s lateness on April 23, 1984 were initially expresslsd to him orally, they were documented by her. The matter was specifically referred to in the letter of June 26, 1990, which the Employer aCknowledged imposed discipline in connection with the incident of June 18, 1990. The commlJoication was described as a IIreprimand". It was clearly intended to chastize Mr. LeClair. Whether or not Ms. Craig distinguished the verbal reprimand from discipline at the April 23, 1990 meeting, she did state in her June 26, 1990 letter "that he was advised at that meeting that further incidents of lateness "would result in disciplinary sanctions II, implying that disciplinary s,anctions had not yet been invoked at that time. Ms. White stated at the hearing that the Employer was not relying on the reprimand as discipline. Howeve r , as is noted in the Hamblin decision, ~upra, the nature of the communication is not determined by how it is characterized by the Employer. There was a written record of the reprim~nd kept by Ms. 0 Craig, al,biet not in Mr. LeClairl s persom\el file. As I j I '"_ , 12 evidenced by the manner in which it was referred to in the disciplinary letter, the reprimand given by Ms. Craig was considered to be part of Mr. LeClair·s record with respect to this matter and it was relied on by the Employer in the " imposition of the letter of warning. Ms. Craig acknowledged that a written warning would not have been imposed if a verbal reprimand had not been previously issued. Clearly I the verbal reprimand prejudiced Mr. LeClair in terms of future discipline. We note that in the excerpt from the Employer·s employee relations manual provided to us a verbal reprimand is stated to be the first step of progressive discipline. A verbal warning is . distinguished from a verbal reprimand on the basis that a verbal warning need not form part of an employee1s record while a verbal reprimand will. This conclusion should not be interpreted to suggest that any discussion between a supervisor and an employee regarding an employee·s conduct which results in a written record will be found to be a disciplinary matter. Indeed, written communications relating to an employee1s performance are often not disciplinary in nature and it is in exceptional circumstances that an oral communication will be found to be disciplinary. Howeve r I in the particular circumstances of this case, given the fact that the employer1s manual refers to a verbal reprimand as ~he . v . 13 first step in progressive discipline and distinguishes a verbal reprimand from a verbal v¡rarning and given the prejudicial effect of the verbal reprimand, it is our conclusion that discipline was imposed on the grievor in the meeting of April 23, 1990. It is our conclusion that just cause for the discipline of April 23, 1990 has not been established. Mr. Wright argued that Mr. LeClair was treated in a discriminatory manner on the basis that the apparent expectations that the Employer had of Mr. LeClair did not conform with the practices at the workplace. It is not nE:lCessary to deal with this issue in order to decide this 9rievance. Ms. Craig was clear in her evidence that in unavoidable circumstances where the period of latene::;s is not considerable or there is not a consistent'pattern of lateness, discipline is not warranted. On the evidence before this Board there can be no questÜ:m that Mr. LeClair's lateness of ten minutes on 'April 24, 1990 due to problems with his daughter on that day falls within this ca tegory . While there had been a previous incidence of lateness there is no suggestion in the evidence of a pattern of lateness that was developing. While Ms. Craig was certainly entitled to counsel Mr.LeClair regarding the Employer's expectations with respect to punctuality, we cannot c~nc1ude that jusification for thl:;! imposition of any ) ~ . 14 discipline has been established. We turn now to the matter of Mr. LeClair1s lateness on June 18, 1990. Again, we need not address Mr. Wright's argument that Mr. LeClair was treated ina discriminatory manner. It is our conclusion that the reason provided by Mr. LeClair for his lateness on June 18, 1990 was truthful. Ms. Craig acknowledged that she would not have imposed discipline on Mr. LeClair if she had believed the reason that he provided for being late. . We have carefully considered Ms. White's submissions with respect to Mr. LeClair's credibility. While Mr. LeClair was unable to remember with certainty the point at which he turned off the highway that night, he was unshaken in his evidence that it was necessary for him to turn off the highway due to traffic problems on the highway that night. Mr. LeClair's evidence with respect to traffic problems on Highway 401 is corroborated by the letter from Mr. Hue of the Ministry of Transportation. While the quality of this evidence is not of the highest order, the evidence of Ms. Craig regarding the information that she received from the Woodstock opp is even of less quality, given its third-hand source. Ms. White referred to a contradiction in Mr. LeClair's " ~ I i 15 evidence with respect to the number of times that he had been late over the years. We are not sa1:isfied that there is actually a contradiction in his evidence. It is the Board I s view that on one occasion Mr. LeClair was referring to certain instances in 1987 and on another occassion he was referring to the instances i.n 1990. There wa s a contradiction in the evidence of Ms. Dennis and Mr. LeClair as to whether Mr. LeClair advisE!d Ms. Dennis of the reason for his lateness at the time that he reported to work. While, as Ms. White pointed out, Ms. Dennis has no apparent interest in this proceeding while Mr. LeClair obviously does, we do not find this contradiction to cause us to doubt Mr. LeClair1s credibility with respect to this ma tter. We think that this contradiction is most probably attributable to the passage of time on the ability of either Ms. Dennis or Mr. LeClair to remer:tber the conversation accurately. We note the clear contradiction of Ms. Dennis' evidence in chief and cross-examination as to whether Mr. LeClair apologized to her.. Mr. LeClair did provide the reason for his absence in a written note for Ms. Craig which was le£1: for her that night. Given the fact that the practice at the institution is that employees do not claim overtime for periods of less than one-half hour when filling in for a person who is late, it ~s quite probable that Ms. CraiÇJ would not have . ? j ~ ~ ~ 16 become aware that Mr. LeClair was late for work on June 18, 1990 unless he had written the note 'to her to advise her that he was late. If he' were fabricating a reason for his lateness one would presume that he would wait to see if he were required to provide a reason for Ms. Craig for being, late before he did so. Mr. LeClair1s attempts to obtain information corroborating his explanation when he became aware that his explanation was not believed are not . consistent with a fabricated explanation.- Considering all of the evidence, it is our view that Mr LeClair has provided a truthful explanation as to why he was . approximately fifteen minutes late for work on June 18, 1990. There can be no doubt that an Employer is entitled to expect punctuality on the part of its employees. Ms. Craig's stated approach with respect to the imposition of discipline is that discipline will not be imposed in instances where the lateness is not excessive in either frequency or amount of time and there is a reasonable excuse for the lateness. 'This is a sound and reasonable approach. Counselling is the appropriate first step if the employee does not conform to the expected standard and it is appropriate for disciplinary action to follow if counselling does not have the desired effect. In the particular circumstances of this case, Ms. Craig , . þ - ~ , 17 acknowledged that she would not have im~)sed discipline as a result of a lateness of fifteEm lnÌnutels if she had found Mr. LeClair's excuse of being dE!1ayed by traffic problems to have been truthful. We have concluded that he has provided a truthful excuse, andl. accordiJrlgly, we have concluded that just cause for the discipline of Mr. LeClair has not been established. . t For these reasons, the grie~/ances are allowed. The letter of June 26, 1990 is to bl:! removed from the grievorl s file and all relevant records are to be ,amended . accordingly. The Board will renain seized in the event of any difficulties in the implementation of this decision. Dated at Toronto, this27th day of June, 1991 / ',- :)fS\ v t Ut\ \.}. ~ S .L. Stewart - Vice-Chairperson ~ ~LYon~~ ~( ~ / / .~". ~¿~~,~j ~. v D. W.J.l.- ìnsh,lw - r,1e-I':tler- ~ .