HomeMy WebLinkAbout1991-0623.Vanden Akker.92-07-24· e., ONTAR/O FMPLO ¥~S DE LA COURONNE
'" CROWN EMPLOYEES DE L'ON TA RIO
GRIEVANCE COMMISSION DE
SETTLEMENT R GLEMENT
BOARD DES GRIEFS
180 DUNOA$ STREET WEST, SUITE 2[00, TORONTO, ONTARIO. MSG tZ8 TELEPHONE/TELI~PHONE; (.~ ~6) _t26- ~388
180, RUE DUNDAS OUEST, ~UREAU 2100, TORONTO (ON',r'ARtO), M5G [Z~ FACSiMILEIT~LEcoPIE .' (416) 326~ I396
IN THE MATTER OF AN AI~BITIt~TION
Under
THE CROWN EMPLOYEES COLLECTIVE B~GAINING
Before
TH~ GRIEFANCE SETTLEMENT BOARD
BETWEEN
OPSEU (Vanden Akker)
Grievor
- and -
The Crown in Right of Ontario
(Ministry of Correctional Services)
Employer
BEFORE: B. Kirkwood Vice-Chairperson
J. Carruthers Member
M. O'Toole Member
FOR THE M. McFadden
GRIEVOR Counsel
Koskie & Minsky
Barristers & Solicitors
FOR THE J. Ravenscroft
EMPLOYER. Grievance officer
Ministry of Correctional Services
HE/%RING September 16, 1991
Page
DECISION
The employer has an attendance review process.
When it reviewed its emgloyees attendance records for the
period from Segtember 1, 1990 to December 31, 1990, it
determined that the grievor had exceeded the average number
of absences for his occupational groug~ As a result, the
emgloyer forwarded a letter dated February 5, 1991 to the
grievor outlining his absences.
The grievor claimed that the employer's use'of this
attendance letter constituted a violation of the collective
agreement and constituted continued harassment over his use
of sick time. The grievor sought the removal of the
attendance letter from his personnel file and two days for
stress leave to compensate for unnecessary aggravation and
stress caused by the employer. At the hearing the union
withdrew its monetary claim. "
At the outset, the employer's counsel raised a
preliminary objection to the Board's jurisdiction.
Employer's counsel claimed that res judicata or issue
estoppel applied and acted as a bar to the grievance.
Employer's counsel argued that the grievor had submitted
virtually an identical grievance in 1989, which he had
withdrawn. She claimed that the grievor was now seeking tO
rearbitrate substantially the same grievance. The grievor
was also one of the grievors in OPSEU. (Drew, et al) and
Ministry of Correctional Services GSB %1101/87, 1103/87,
1104/87, 1265/87, 1540/87 and 1884/87. Employer's counsel
argued that although the grievance was not identical in
wording, it was substantively the same grievance. Employer's
counsel submitted that as the issue has been decided, this
grievance was inarbitrable.
Page
Union's counsel argued that as the earlier
grievance had been withdrawn, there has been no judicial
determination and res judicata is not applicable.
Union's counsel submitted that the issue before
this board differed from the issue raised in the Drew (supra)
grievance. The issue in the Drew grievance was whether or
not the attendance letters constituted discipline. Union's
counsel acknowledged that the attendance letter was not
disciplinary. Union's counsel argued that the issue in this
case is whether the process that was followed in the
grievor's case constituted harassment. Union's counsel
argued that the employer's policy was put in place to control
abuse of sick leave. As the grievor was not a cause of
concern for the employer, the grievor was wrongfully
targeted. Union's counsel submitted harassment in this
context is the unwarranted and repetitive capturing of
attention of someone when there is no cause for concern. In
tke grievor's case, tkere was a pattern tkat constituted
harassment. Union's counsel therefore submitted that the
facts were different as the attendance' letters related to
different times, and the issues were different. Accordingly,
neither res judicata nor issue estoppel were applicable.
AS the issue as characterized by union's counsel
was different from the issue raised in the earlier
grievances, we heard evidence in this matter and reserved our
decision on the preliminary objection.
Arbitrator Reville in the Re Canadian Union of
Public Employees, Local 207 and the City of Sud~ury 15
L.A.C. 404 (Reville) outlined the approach taken by
arbitrators when a grievor and his or her union
representative tries to process a grievance that is identical
to a former grievance filed by the grievor that is either
Page 4
withdrawn, abandoned, settled or determined by a board of
arbitration. He found in his review of the arbitral'
jurisprudence that boards overwhelmingly found that they had
no jurisdiction to hear the second grievance, whether they
considered the issues from the standpoint of estoppel or res
judicata. As an extension of this principle, boards have
also declined jurisdiction when the grievances are not
identical in form, but are identical in substance.
Although the 1989 grievance was substantially the
same on its face to this grievance, as it was based on a
similar form letter and allegations of harassment, the
situation was different from the City of Sudbury case. It
was not a situation in which this grievance could said to
arise from the earlier grievance, or as articulated in Re
U.A.W., Local 1285 and American Motors (Canada) Ltd.
{1964), 14 L.A.C. 422 as cited in the City of Sudbury at
page 404, as allowing a grievor who has settled a matter to
have second thoughts and relitigate the issue. The letter of
withdrawal dated November 7, 1989 placed the union's decision
not to proceed with the grievance on the union's acceptance
of the position that the letter was not disciplinary and
therefore inarbitrable. Although the letter stated that the
grievor maintained his contention that the attendance review
process was a form of personal harassment, that issue was not
the basis for the withdrawal as described by the union to the
employer in its letter of withdrawal. Accordingly we find
that although the 1989 grievance may appear to be similar,
there is no basis to find that this matter has been resolved
by its withdrawal.
Res judicata has been used in the labour field in
two different ways. In Re Rainy River Valley Health Care
and Ontario Nurses' Association 20 L.A.C. {3d) 331
(Devlin) Arbitrator Devlin considered its application. Some
arbitrators have declined jurisdiction by applying res
Page 5
judicata in a similar manner to the civil courts. As stated
by Arbitrator Devlin at page 335:
In civil actions, res judicata, which has been
defined as "a matter adjudged" or "a thing
judicially ~cted upon or decided" is a doctrine
which posits that a final judgement on the merits
by a court of competent jurisdiction is
determinative of the rights of the parties in
subsequent actions in respect of matters dealt with
in the initial proceeding. The object of the
doctrine is to ensure finality in litigation and
multiplicity of actions.
Another approach taken by arbitrators is to accept
jurisdiction and consider the issue and accept the
persuasiveness of the earlier decision, unless the earlier
decision is clearly wrong. This approach is analagous to the
application of estoppel. This was the approach as reflected
by the Grievance Settlement Board in OPSEU(~lakm et al.)
and Amalgamated Transit and Toronto Area Transit
Operating Authority G.$.B. % 1276/87; 1342/87 etc., w.hich
determined that each panel of the Board apply other decisions
that raise the same situation and issues, to create a
consistent resolution to the issues raised. This decision
however, created a .higher standard than that found in private
arbitration matters for departing from the application of
earlier decisions. Chairman Shime states at page 9:
...while it is our view that the "manifest error"
theory is too lax a standard, we recognize that
there may be exceptional circumstances where an
earlier decision of this board might be reviewed.
At this point we are not prepared to delineate what
constitutes exceptional circumstances and the
fleshing out of that standard will be determined on
a case by case basis. The onus will be on the
party seeking review to establish exceptional
circumstances.
When comparing this case with the Drew case,
ostensibly the grievances appear to represent substantially
the same matter; however, the panel in that case did not
Page 6
consider the issue of harassment and considered only whether
the attendance letters issued by the employer constituted
discipline. The panel found that the letters were not
disciplinary. The board did not go further and make any
findings on whether the application of the procedure
constitutes harassment. Therefore, whether using either
approach we find that res judicata is not applicable and this
grievance is arbitrable.
Employer's counsel submitted that even on the
merits of the case it was inarbitrable because the Board's
jurisdiction flows from the Crown Employees' Collective
Bargaining Act. There were no alleged contraventions of
the Collective Agreement and we had no jurisdiction to deal
with harassment. Employer's counsel submitted that the
attendance review policy was not directed to discover abuse
but to correct and improve innocent absenteeism. The letter
on file was purely a factual statement that in~ the relevant
period the grievor had exceeded the average for his
occupational group.
-Our ability to consider situations of alleged
harassment arises from our jurisdiction to consider if there
is a breach of the collective agreement. Frequently, that
consideration arises as an adjunct to disciplinary matters.
In this case, as there is no discipline, that will not be
applicable. In this case, our jurisdiction is to consider if
there has been a breach of the collective agreement as
alleged by the union.
Although the grievance did :not refer to any
articles in the collective agreement we do not find that the
failure to do so prevents the union from alleging a breach of
the collective agreement in support of the grievor's claim
that the employer has personally harassed him when dealing
with his sick time. There were sufficient particulars in the
Page 7
grievance to alert the employer to the alleged cause of
action. Therefore we find that ~he union is not precluded
from relying on articles 5.5, 25.4, 34.1 and 52 in support of
its claim, as argued.
The facts as presented by the union in its evidence
were undisputed. The grievor was the only witness.
In June 1988 the employer initiated an attendance
review policy and forwarded a memo to its employees outlining
its policy. It stated that the mandate of the attendance
review process was to "assist staff to attend work regularly
and to maintain a satisfactory attendance record". The
objectives of the committee were "to promote and encourage
satisfactory staff attendance, to identify employees whose
absenteeism meets or exceeds institution standards or is a
cause for concern, to make appropriate recommendations and to
provide assistance to staff and their managers that will help
an employee enjoy good attendance. Another important
function of the committee i$ to identify staff whose
attendance is exceptional and insure proper recognition is
given." A committee was constituted to meet monthly or as
required for the express purposes of reviewing attendance
records and to prepare a statistical report on their findings
and to make recommendations. Tke committee compiles the
statistical averaqe of the absenteeism for each occupational
group and compares the attendance record of each employee to
the average attendance for the occupational group. The
policy further states:
"if the committee identifies an individual'whose
absences are cause for concern, the following
procedure may be implemented:
STEP 1
The committee will forward a copy of the Attendance
Review Form (Appendix "B") to the employee's
Pag~ 8
supervisor. It will be the responsibility of the
supervisor to meet with the employee regarding the
information contained in the form. At the
interview the employee will have the opportunity to
discuss the attendance record. Appropriate space
is available on the form, including the reverse
side, for factual comments the employee may care to
record. The form will then be returned to the
Attendance Review committee for their information
at the next meeting.
Although this process is not disciplinary Article
52.13 of the Collective Agreement requires that the
employee be given reasonable notice of the
interview and of the right to have union
representation at the interview, and the employee
either has union representation or declines it in
writing prior to the interview.
For the attendance review period from September 1,
1990, to December 31, 1990, the committee found that the
grievor was absent slightly more than the average of the
others in his occupational group for that period. The
grie~or was absent two ~ays which represented four credits in
the attendance review system. The average for his
occupational group for that period was 2.28 credits. As the
grievor was identified as being above the average, his
immediate supervisor gave him an Attendance Review Form and
met with him to discuss his use of the attendance credits.
The discussion did not question the validity of his use of
the attendance records.
There was no claim that management attempted to
single out the grievor for special treatment nor treat the
grievor in an unfair manner. As there was no allegation of
discriminatory treatment, and the issue of harassment was
founded on the mere application of the policy to the grievor,
we did not accept hearsay evidence in the form of testimony
from the grievor that another employee had an absentee record
that was greater than the average and did not receive an
attendance letter.
Page 9
The basis of the grievor's claim that the letter
constituted harassment was, that in the grievor's view, his
sick time was not abusive, excessive nor chronic, and was
only marginally over the accepted average. In his view the
process was not helpful in assisting him. Union's counsel
claimed that Articles 5.5, 25.4(c), 34.1 and 52 established a
complete code for the application of the sick leave policy.
He submitted that Articles 52.9 and 52.10 in particular were
directed to those employees who were abusing sick leave.
Union's counsel argued that the policy when read with article
52 was directed to those who were "a cause for concern". As
the grievor claimed that he neither abused sick leave nor was
a cause for concern, he was outside the targeted group and
ought not to have received the letter and be harassed by this
letter.
We cannot find that Articles 5.5, 25.4(c), 34.1 and
52 provide a comprehensive code on all aspects of sick leave
and sick leave credits. They provide for the employees'
rights and entitlements to certain benefits. Article 52.13
contemplates an attendance review procedure, but it does not
set out the procedure. The right to determine and apply the
process arises from the management's rights provided in
section 18(2) of the Crown Employees' C~llectlve
Bargaining Act.
The attendance review policy was an attempt by the
employer to improve its employees' absenteeism by advising an
employee if the employee in any particular period exceeds the
average of the occupational group. It is a factual statement
of the employee's attendance relative to others in his
occupational group. It is a fair and reasonable way of
alerting any employee to his attendance record. It does not
dispute the reasons for the absence but merely advises the
Page 10
individual of the number of absences witkin a particular
period.
Although the union put forward the premise as
espoused in United Parcel Service and Teamsters Union
29 L.A.C. (2d) 212 (Burkett) that the employer's decisions
must be assessed against a requirement to act for business
reasons and not to single out any employee or group of
employees for special treatment unless it can be justified in
terms of real benefit to the employer, an attempt to reduce
innocent absenteeism is an acceptable business practice, and
forwarding a letter to the employee who has exceeded the
average absences of his group does no more than'provide the
employee with a statement of his situation. As stated in the
employer's policy there is a direct benefit to the employer.
"Unacceptable high absenteeism, innocent or otherwise, may
not only adversely effect an employee, it also places an
additional .heavy burden on co-workers and inhibits our
collective responsibility to provide a safe and secure
working and living environment."
In OPSEU (Drew, et al) (supra) of which the
grievor was included as a grievor and OPSEU (Singh) and
Ministry of Transportation GSB ~1309/88 (Dissanayake)
reiterate the principle that the employer not only ought to
consider advising employees relating to work performance, but
is obligated to. As stated at page 4 of the Drew decision:
As has been stated in so many earlier Board
decisions, the employer is not only entitled to
make written or oral communications to employees
regarding their work performance, it is obligated
to do so where further or progressive action is
contemplated if the performance does not improve.
Once the employer contemplates terminating an
employee for innocent absenteeism it is obligated
to advise the employee of the. unacceptability of
the absentee record and the fact that the adverse
Page 11
results could occur if the absentee record does not
improve.
AS in the previous cases the attendance letter is
only notice of absences and is not disciplinary in nature.
The grievor claimed that harassment arose from the
application of the attendance review process to him. It was
not disputed that the grievor's absences for the period in
question was above the average for his occupational group.
The policy clearly stated that one of the criteria which
would cause the employer to send an attendance letter was if
the employee's absences exceeded the average for his.
occupational group. There .was no evidence of any singular
treatment of the grievor. Therefore, the employer did not
harass the grievor by following its attendance review process
and sending the grievor the attendance letter.
This grievance is therefore dismissed.
Dated at Toronto, this 24th day of July , 1992.
B.A. Kirkwood, Vice-Chairperson
Carruthers, Union Member
M. O'Toole, Employer Member