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Home My WebLink About1990-1567.Grinius.93-06-25· ' CROWN EMI3LOY££S DE L'ONTARIO . "': ' :~ GRIEVANCE C,OMMISSION DE SETFLEMENT REGLEMENT BOARD DES GRIEFS 18~ DUNDAS STREET WEST, SUITE 2;00, TORONTO. ONTARIO, MSG IZ8 . TELEPHONE/TELEPHONE; (4'~5) 326~388 180, RUE DUNDAS OUEST. BUREAU 2100, TORONTO (ONTARIO). MSG 1Z8 · FACSIMILE/T~:L~'COPIE : (4~'6) 326~ 7396 ':[567/90, 1~68/90, 1357790, 1409/90, 1495/89 IN THE MATTER OF AN'ARBITRATION Under TEE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN OPSEU (Grinius) ~rievor The Crown in Right of Ontario (Ministry of citizenship) Employer BEFORE~ B. Fisher Vice-Chairperson G. Majesky Member D. Montrose Member FOR THE R, Wells UNION Counsel GoWling, Strathy & Henderson. Barristers & Solicitors FOR THE J. Knight EMPLOYER Counsel Fraser & Beatty Barristers & Solicitors \ HE~RING November 30, 1992 December .1, 1992 May 28, 1993 GRINlUS AWARD This is a discharge case. In the three previous,,lnterim Awards the background facts have been set out in detail. In this final stage the Board determined the actual discipline record of the Griever up to the point o! discharge. The parties Were content to haue the final' award simply list the contents of the final discipline record .without Diving detailed reasons as to why the Board upheld some of the discipline record and not other parts of it. It should be noted that the Board's finding as to the contents of the discipline record was unanimous. The final record is therefore determined to be as follows: DATE. CONDUCT DISCIPLINE Sept. 25 1987 Disparaging and rude comments to Written waTning another employee in a phone cai ,lune 22, 1987 Abusive and insubordinate behaviour Written warning towards a supervisor . January 6, 1989 Insubordination in not complying with Written warning Managers' order to spend time learning computer March 2¢, 1989 Insubordination in dealing with direct One day suspension supervisor in an abusive and threatening manner April 5, 1989 Aflending doctors appointment during Writlon warning working hours without seeking prior permission contrary lo policy July 7, 1989 Insubordination in not complying with Written warning Managers' order to spend time learning computer July 31, 1989 Disparaging and rude remarks made Written warning to another employee on the telephone August 28, 1989 Performance review 2 The culminating incident took place on May 7, 1990 when the Griever wrote a letter to a client group of the Ministry. The Board, in interim Decision #1, found this to be a disciplinable .} offence as it was a conflict'of interest under Section 20 of Regulation 881 of the Public Sew[ce Act. in its decision the Board characterized'the breach as follows: · Having said that the Griever was in violation of the Conflict of Interest rules, we do not.feel that he truly understood the full importance and seriousness of his actions. We also believe that to some degree the Griever was motivated for altruistic reasmts in that he honestly believed the Chief 'desperately needed his specific skills to complete the project. For those reasons we would not uphold a discharge for this specific offence only, however, as it ts an offence warranting some discipline, it is sufficient to form the basis of a culminating incident which allowed the Employer to rely upon th(~ past disciplinary record." Thus'we have an employee who over a 23 month period had a discipline record consisting of 6 written warnings, a single one daY suspension and a critical performance review. The employer took the position that on the basis of the record alone, discharge was the appropriate remedy given the seriousness of the record and the culminating incident. Although the grievers discipline record was certainly a lengthy one, we are not satisfied that discharge was the appropriate response, for the f°llowing reasons: 1. The Employer failed to increase the level of punishment during the discipline process, even when the effenses repeated themselves. For example the griever was disciplined twice for making rude and disparaging remarks to a co.worker,, once on September 25, 1987 and again on July 31, 1989, however 'on both occasions he only got a written warning. 3 $imilar;y on January 6, 1989 and then again, on July .7, 1989 he was given written warnings for failing to fOllow an order from his direct supervisor regarding computer training. The only time the Employer ever increased the penalty was'when he abused a supervisor on a second occasion and was given a one day suspension, 2. The culminating incident was o! a completely different character from the previous incidents. It did not relate' to interpersonal relationships or insubordination but rather what was a relalively minor violation of the breach of conflict rules. If the culminating incident had been similar to character to the previous discipline (i.e. another blow-up with his supervisor) then' discharge may well have been the proper response. [see SK._EF Ma~ufa.cturinp. and lAM_ 9 LA.C. (2d) 1Z9 (Shime)]. 3. In none of lhe previous discipl~ne lelte'rs was there even a mention of the fact lhal discharge may result from further violations..I adopt.the principle set forth by Arbitrator Brandt in Etobtcoke General Hospital and O.N.A. 15 LA.C. (2d) 172 at page 178, "In view of the seriousness of the disciplinary action, especial~r when it might ultimat,~ resu]t in discharge as here, we find the argument that employee~ should be under no misapprehension as to the discipl[nary potential of their actions to be very persuasive,' This marked failure of the Employer to Issue a stern warning of the consequences of future. mJsbehavJour greatly lessens the reliance that can be based on the prior discipline record,' especially when the culminating incident itself is not of an especially serious nature. 4 Having determined that the culminating incident and the past record themselves do not justify dismissal, the usual remedy is to substitute a lesser penalty (i.e. a suspension) and order reinstatement with compensation. However, the Employer pleaded as tlteir alternative agreement that we should not reinstate ~n t~]s s)tuat)on because t)~ere was no longer a viable employment relatio;tship between the Grievor anti. the Ministry, or more appropriately, betweml the. Grievor and his supervisor, Ms. Anne Farraway. The Board accepts the doctrine that, absent exceptional circumstances, employees who have been unjustly discharged should be reinstated.' (Tenant Hotline and Peters and Gitten,s [10 L,A.C. (3d) 131 (R.R. MacDowell)]. The issue is whether or not these exceptional circumstances exist in this case. We do not ·find that such exceptional circumstances exist in this case. Although the Grievor obviously had problems dealing with some of his' co-workers and supervisors. These 'problems do not seem to be of such a serious nature that one can say that ther; is no real hope of the Grievor being able to work effectively in the Sudbury office. In fact we feel that for the following reasons the likelihood of the Grievor mending his ways is quite good: 1. Part of the problem involving the Grievor undoubtedly flowed from the management style' which Ms. Farraway was instructed to carry out by the then Director, Mr. Dlckson.' This management style consisted of disciplini.ng employees before giving the employee an opportunity to present their side of the story. Ms. Farraway said that lhis procedure was. ,5 imposed on her by Mr.~Dickson and was contrary to her own management style. As. Mr. Dickson is ,no longer the Director, Ms, Farraway wiii be free to apply her own more.open style of management. 'We believe this will greatly enhance the ability of the Grievor and Ms. Farraway to get along.' ' 2. Some of the Grievor's frustration on the job flowed from unresolved issues involving time off and travel claims, These are ;~11 [Tow in-the past and hopefully wilt ;tot affect the Griever's future performance. Moreover, it is hoped that the Grievor has learnt that his Union can be of great assistance to him in helping to resolve issues like travel claims. In the future he should involve OPSEU early on if he has pf:oblems in these areas so~as to lessen the chance of direct confrontation· with his supervisors. 3. The Grievor was asked in cross-examination whether or not he felt he could effectively work in the Sudbury office if he was reinstated. The Grievor gave an honest answer in which he admitted his own short comings and felt hopeful now that all the unresolved Issues surrounding his past claims have been finally resolved he was confident he could have a professional working relationship'with Ms. Farraway and others in the Ministry. d) On his own initiative the Grievor has taken pSychological counselling to deal with his anger problems. In determining the appropriate penalty to be s~:bstituted for the discharge, we feel that the 6 Grievor has to have brought home to him the seriousness of his'past conduct both in relation-to the culminating Incident and his previous record. We. are therefore subs!ituting a-3'0 day suspension for the discharge. Thereiore the Board's orders are as follows:. 1. The discharge is to be replaced with a 30 day suspension. The Grievor is to be immediately reinstated to his former position as an I.D.O. 2 in the Sudbury office, with full compensation (less the 30 ~lay suspension) including wages, benefits seniority and interest. 3. In determining the Grievor's discipline record, in relation to the new provision in the current collective agreement regarding the elimination of past discipline, only that time spent by the Grievor While in the active employ of-the Ministry should be counted. In other words the period of time since the Grievor went on secondment (which we fix as being October'1, 1989) and his return date pursuant to this award will not count towards the time 'necessary to clear his discipline recor~l. We have specifically not included the period of time from April 30, 1990 to June 15, 1990 (which is the perio~! of time in which the' Grievor was on paid suspension pending investigation) as he was not performing any work for the Ministry. This means that the'Grlevor is returning to work with a rather dreadful discipline record, however we hope the Grievor has learnt 'his lesson and wiJl conduct himself appropriately in the future. If he does. not, then when management reviews his discipline record, the presence of 6 written warnings, a one day suspension end a 30 day suspension 7 will greatly increase the ability of the Employer to discharge him. > 4. We reserve jurisdiction regarding any issue arising from the implementation of this award. The Board would like to express its respect and appreciation regarding the manner in which Mr. Knight on behalf of the Ministry and Mr. Wells on behalf Of OPSEU (and Mr.' Eady before him) " have conducted this Ioflg and drawn out case. Their fairness and professionalism in dealing with the Board and between themselves went a long way to insuring lhat each side got to present its full case before the Board. Their full and frank presentations made it possible for this Board to make a. decision which is hopefully nol only correct in law, but also sensible in terms of labour relations. Dated at Torontochis 25 day of June , 1993. -CHAIRPERSON "I ParLially Dissent'~ · (Partial Dissent,:Co"follow) lION NOMINEE D. MONTROSE-EMPLOYER NOMINEE PARTIAL DISSENT RE: 1567/90, 1568/90, 1357~90, 1409/90, 1495/89, OPSEU (Grinius) and the Crown in Right of Ontario (Ministry of citizenship) In my opinion the award should have road as follows: Page (6) #(g) "The Grievor is immediately reinstated to his former position as an I.D.O.(2) in the Sudbury office, with full seniority,,, e.g. delete all reference to compensation, benefits and interest~ REASON · (a) The inept handling of this discharge by the employer assured the grievor's reinstatement to his for~er position. (b) The gri~vor"s abysmal employment record,-coupled with the. level of responsibility should rule Out all compensation in. any form. The granting .of full compensation (less one month) appears in this case to be a reward for complete arrogance and disregard toward~ ~supervisors, peers and clerical suppor~ staff. On the positiTM side, the grievor was confident he could have a professional working relationship with his supervisors and others in the Ministry. In addition, the grievor admitted his own shortcomings and has 'sought professional help to deal with his. D., Montrose, Member July 12, 1993