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HomeMy WebLinkAboutVessio 07-03-13 IN THE MATTER OF AN ARBITRATION BETWEEN CITY OF VAUGHAN (the "Employer") - and - CANADIAN UNION OF PUBLIC EMPLOYEES, LOCAL 905 (the "Union") - and - IN THE MATTER OF A GRIEVANCE OF MS TINA VESSIO (the "Grievor") BEFORE: C. Gordon Simmons, Arbitrator APPEARANCES ON BEHALF OF THE EMPLOYER: Patricia G. Murray, Counsel Janet Ashfield, Director of Human Resources Nancy Salerno, Legal Counsel Tony Thompson, Senior Manager, Enforcement Services Steve Smith, Employee Relationships Manager APPEARANCES ON BEHALF OF THE UNION: Dean Mainville, National Representative Sandra Lestani, Advisor Heather Vidito, Unit Chair Tina Vessio, Grievor And Others A hearing into this matter was held in Etobicoke, Ontario on February 21, 2007. -2- The grievor seeks to have the one-day suspension she received removed from her files and that she be made whole. The employer's discipline letter reads, in part, as follows (ex. 1): We have investigated the incident that took place on September 28,2005. Your voice was loud and your language offended another member of the enforcement staff. It was also confirmed by another staff member that you referred to a colleague of the enforcement services in a vulgar and inappropriate manner. As a result of the above, you will be suspended without pay on Tuesday, October 4,2005. ... The facts are as follows. The grievor is classified in the position of "Parking Control Coordinator". She is employed in the Enforcement Services Department. The grievor works in the main Civic Centre building and her duties include following the path of parking ticket violations issued by enforcement officers. This includes monitoring the progress of the matter from the time the tickets are issued until the matter is finally resolved. The enforcement officers carry a handheld device which records information inserted by the officer which is followed by issuing the actual ticket. These units are returned to a satellite office, referred to as the TIGI court office where the information recorded on the unit is downloaded for processing. It is acknowledged the handheld units can be "temperamental" and that they sometimes require adjustments in order for them to work properly. The grievor had, until sometime before September 28, 2005 (the evidence did not disclose the precise date which is not relevant to the outcome of these -3- proceedings), been the person who carried out the "repairs" on the units. I understand she was very good at maintaining the units in proper functioning order. At some time before September 28, 2005, the grievor trained a co-worker, Ms Silvana Ferrantone, to carry out the duties of downloading the units. The grievor transferred from the TIGI court offices to the Civic Centre while Ms Ferrantone worked at the TIGI court location. This meant the grievor no longer downloaded the information from the units but once the information was downloaded by Ms Ferrantone, her duties required her to follow the progress of the downloaded information through to revenue collection or other final determination of the issued ticket. Apparently, Ms Ferrantone frequently required assistance in maintaining the proper functioning of the handheld units. She called upon the grievor for this assistance. The grievor testified she had told Ms Ferrantone that if they broke down not to call her but instead call the consultant who serviced the units. The grievortestified she was now physically separated from the units (being located at the Civic Centre and no longer at TIGI court) and that her workload ''was over 150%". However, the grievor's supervisor, Mr. Tony Thompson had instructed her to continue assisting Ms Ferrantone. Mr. Thompson had also issued instructions to Ms Ferrantone to seek the grievor's assistance in this regard. The grievor left me with the distinct impression that she was not happy having to continue her involvement with the handheld units through rendering assistance to Ms Ferrantone. There is one other person who was referred to in these proceedings but who did not attend and obviously did not testify. His name is Rene Castilla who is an employee in ITS (Information Technology Services) who, I gather, is likewise somehow involved with the -4- handheld units. His only involvement in these proceedings will become apparent later in these reasons. Finally, the outline of the location and its surroundings where the grievor worked should be mentioned. As stated earlier, the grievor worked in the main office at the Civic Centre. She occupies an office off an open space where a counter is located to which the public approaches concerning parking ticket violations. Two employees meet the public at the counter to handle their concerns. This encounter is referred to as "first attendance". Another employee who occupies another office adjacent to the open counter section is Ms Janice Heron. Ms Heron is the Lead Hand who administers the enforcement services staff at the main office. Ms Heron is a bargaining unit member. Her supervisor, Mr. Tony Thompson, is in operations over at the TIGI court offices. With the foregoing as background information, I now turn to the facts surrounding the incident that occurred on September 28, 2005. In doing so, there is one item that occurred on September 19 that should be briefly discussed. On September 19, 2005 a co-worker in the Enforcement Services main office at the Civic Centre, Ms Daniella Galipo, sent an e-mail to Ms Heron stating the grievorwas using foul language and that another employee (Margie) approached the grievor to let her know someone was at the counter. Ms Heron sent an e-mail to Mr. Thompson concerning the matter and sought advice as to whether he should speak to the grievor or did he wish Ms Heron to mention to the grievor that she needed to lower her vocabulary. Mr. Thompson replied bye-mail that a friendly reminder from Ms Heron would be appropriate at this stage. Ms Heron testified that she did indeed speak with the grievor about the matter. -5- On September 28, Ms Ferrantone was having some problems with the handheld units in that she could not download the information stored in some of them. She called ITS and initially spoke with a "Mike" who was unable to assist her. Then apparently Rene Castilla came in to Ms Ferrantone's location but the problem remained unresolved. Ms Ferrantone then left a voice mail for the grievor to contact her. After waiting a short period of time and not receiving a response, Ms Ferrantone sent the following e-mail to the grievor (ex. 7): Good morning Tina, Further to the message I just left you, Rene was just her [sic] but there are some problems with the process this morning. With respect to the old blue units, for some reason, the communication icon that normally shows up at the top of the screen is not showing up for me to start the process. There are also 2 of the gray units that need to be set in the correct mode so that [sic] are ready to download prior to being able to carry out the function. Let me know when you have a moment. Rene needs to speak to you as well and has asked me to e-mail him once you respond to me. Thanks, Silvana Next in this sequence was the grievor's testimony wherein she stated, in her evidence-in-chief, that she received a phone call from Rene early that morning around 9:00 a.m. where he allegedly said to the grievor: "Gee, what the fuck is going on - is someone trying to sabotage the system?" My notes of the grievor's testimony surrounding this matter continue as follows. She said: I was very offended. - I replied, Rene, are you implying I am doing something to these units - I can't be at two places at one time. Q. Who handled the downloads? A. I trained Silvana to do so. -6- The grievor continued: We always had problems. - I said, [to Rene over the phone] you know how many times [while you were] by my side I tried to fix them - they are temperamental. I took great offence that it was implied I was trying to sabotage the units. Rene said, they are breaking down more often. I said, I am tired trying to fix things up. In addressing counsel the grievor concluded: She* told Rene I'm the culprit - she* is a frigging moron. (*"She" refers to Ms Ferrantone.) Following the phone conversation with Rene, the grievor telephoned Ms Ferrantone instead of responding to Ms Ferrantone's e-mail. Ms Ferrantone testified the grievoryelled at her, gave her heck, was rude and condescending. She said the grievor had a threatening tone and told her she should consult with the consultants over her problems. Part way through the conversation, Ms Ferrantone placed her phone on speaker phone so the office supervisor, Danny, could hear the tone of the grievor's voice. Danny was not called to testify. However, Ms Sandra Lestani, was sitting at her desk directly in front of Ms Ferrantone's desk and overheard the grievor speak with quite a loud voice. Ms Lestani had been talking with her supervisor Danny when both of them stopped and looked over at Ms Ferrantone. Ms Lestani stated that Ms Ferrantone was standing, motioning her hands and was quite loud and was clearly trying to get people's attention around her to listen to the -7- conversation. Ms Lestani testified that at no time did she hear either Ms Ferrantone orthe grievor say anything offensive or swear at each other but their voices were certainly heightened. Following the telephone call with the grievor, Ms Ferrantone sent an e-mail to Mr. Thompson, her supervisor, outlining what had transpired over the phone, stating she was upset and felt she should not be subjected to this. The e-mail reads (ex.7): Hi Tony, Rather than reply to this e-mail, Tina just called me and basically gave me heck, took her frustrations out on me with respect to issues that are arising with the downloading. She has indicated that she is now having to get reemed [sic] by IT each time they have been called upon to adjust problems. The bottom line is that she stressed that she made this all clear to you and that 'if Tony thinks I'm going to take this shit, he has another thing [sic] coming." She indicated to me that if there are problems that I need to 'contact the consultant directly'. She was very condescending and rude. I put her on speakerphone [sic] and signaled [sic] Danny to listen in since he was standing nearby. I did this so that he could hear the tone she was using towards me. I do not think this is acceptable behaviour and that any employee has the right to speak to another employee in this manner. I am upset and feel I should not be subjected to this or any similar type of scenario. I have been doing what is expected of me, to the capacity that was indicated to me. I have not been instructed to contact the consultants and have been following the instructions Tina gave me during training. Please give me some feedback on this matter. Thank you for your help. Silvana Ms Ferrantone later learned the grievor had remarked to Rene that she was a "fucking moron". This prompted Ms Ferrantone to file a harassment complaint with then Manager of Human Resources, Jean Rushworth (ex. 6). The grievor denies having called Ms Ferrantone "a fucking moron" while speaking overthe phonewith Rene. However, she did admit she said Ms Ferrantone was a ''frigging moron". She acknowledged in cross-examination that both terms were inappropriate in the -8- work place. When she was asked why she chose not to apologize to Ms Ferrantone she replied that the question was never brought up and went on to say Ms Ferrantone had never apologized to her. Ms Heron had been in her office when the grievor spoke over the phone with Rene from the grievor's nearby office on September 28. Both office doors were open. Ms Heron testified she heard the grievor's voice raised very loudly. The grievor was swearing which Ms Heron found to be offensive. She felt the public could hear her if Ms Heron could clearly hear her in her office. Ms Heron decided to simultaneously type what she was hearing. She typed an e-mail to Mr. Thompson which reads (ex. 4): Tina is again in her office on the phone with 'Rene" from ITS. I can clearly hear her in my office saying 'well she's a 'f***ing moron. Why are you getting involved. Well there, you're turning it around and chewing my ass. It sounds to me that there is a problem with downloading and if this is the case, Tina is calling Silvana an f***ing moron. Her tone, loudness, and name calling of staff has to stop. Tina is now on the phone with Silvana and is reaming her out. Janice. Ms Heron testified the grievor's exact words were "Well she's a fucking moron". Her testimony was not shaken in cross-examination. As a consequence of the foregoing the employer issued a one-day suspension. EMPLOYER SUBMISSIONS The grievor is a person who jumps to conclusions. Rene had asked who is sabotaging the system and the grievor immediately concluded it had to be Ms Ferrantone -9- who had accused her of being the saboteur to Rene. The grievor tried to minimize her "potty mouth" by saying she used "frigging" and not "f...ing". Moreover, the grievor stated she was the calm one on the phone when having a private conversation with Ms Ferrantone in her office. This is laughable. She was loud and did not care who overheard her yelling into the phone. Ms Lestani confirmed the grievor had been loud with a heightened voice while speaking over the phone to Ms Ferrantone. Moreover, she had received a "gentle reminder" days before on September 19 to keep her tone down and be professional. The grievor still does not get it. She has not apologized. She fails to recognize any wrongdoing and shows no remorse. In the result there are no mitigating circumstances to modify or quash the penalty. The employer asks that the grievance be dismissed. In support of its position the employer relied on the following arbitration decisions: Upper Grand District School Board and Canadian Union of Public Employees CLC and its Affiliate Local 256 (Kelly), unreleased award dated June 15, 2004 (Jolliffe); Re Finning (Canada) and International Association of Machinists and Aerospace Workers, Local 99 (2003), 116 L.AC. (4th) 324 (Sims); Re Prestressed Systems Incorporated and Labourers' International Union of North America, Local 625 (2005), 143 L.AC. (4th) 340 (Snow); Re Pope & Talbot Ltd. and Industrial Wood & Allied Workers of Canada, Local 1-423 (2002),106 L.AC. (4th) 19 (Wilson). UNION SUBMISSIONS This case is about the grievor getting a phone call from IT which started it all. Rene asked what the f...k was going on and if someone was trying to sabotage the system. The -10- grievor, an 18-year seniority employee, became defensive. She had received the phone call, not initiated it. She admitted she said, "frigging moron". The employer's cases all involve a grievor saying something directly to a person. The instant case is not a direct attack on Ms Ferrantone. The union also relied on a previous decision Re Sheridan Villa Home for the Aged (Regional Municipality of Peel) and C.U.P.E., Lac. 2101 (1996), 57 L.AC. (4th) 141 (Brent, Arnot, Brillinger) where the grievor's loud voice in a lounge was sufficient for all to hear. However, there was no insubordination in that case. Instead, it was a private conversation. It was not intended to provoke the employee as it was directed at another employee. In that case the grievor had been disciplined four times and was dismissed. The grievor in Sheridan was reinstated with full compensation. The grievor in the instant case has no prior discipline and has 18 years seniority and the union, therefore, asks that the grievance be allowed. DECISION Behaviourthat is abusive, demeaning, and inflammatory by one employee directed at another employee is unacceptable in the workplace which management clearly has an interest in seeing that it does not occur. This behaviour is outside the "shop talk" type of behaviour which is usually not considered offensive by fellow workers. It is unfortunate Rene was not called to testify. However, I draw no inference in this regard. Either party, it seems to me, had a valid interest in having him testify to at least attempt to clarify what was said during his telephone conversation with the grievor on September 28. It would - 11 - have been interesting to hear his reasons for making the statement about someone attempting to sabotage the system. However, I am left with the evidence that was led. I have no hesitation in accepting Ms Heron's account of what was actually said over the phone. She was a passive person standing by overhearing a conversation which offended her. The grievor, on the other hand, was agitated over being accused, in her mind, of sabotaging the system and concluding it was Ms Ferrantone who had made the accusation to Rene. So I accept, as a fact, that she used the word "fucking" and not "frigging". While both words may be unacceptable I regard the former as being much more so than the latter. The grievor had been cautioned a few days earlier over her use of loud, coarse language. Apparently, that caution or "friendly reminder" had no or little impact on her. In my respectful opinion the employer had cause to discipline the grievor as a method of bringing home to her that her language needed improvement. This was especially so in places where the public frequented. It is obvious that Ms Ferrantone, in addition to Ms Heron and Ms Galipo, found the grievor's language unacceptable. Ms Galipo went to Ms Heron who in turn reported the matter to Mr. Thompson. Ms Ferrantone complained to her supervisor, Mr. Thompson, about being upset over the grievor's behaviour toward her. Upon learning what the grievor was alleged to have said about her to Rene, Ms Ferrantone later complained to Ms Rushworth that the grievor was harassing her. This is not the same situation as that which occurred in Sheridan. In that case the grievorwas asked by a fellow employee about her recent three-day suspension. This was -12 - during their break in a lounge. The grievor's loud comments were interspersed with the "f...king" word. The Board concluded what occurred there was a private conversation carried on in the lounge during a break. No employee present felt moved to report the matter to management. The remarks were not directed towards another employee nor were they intended to provoke any other employee. The employee was reinstated with full compensation. Unlike the Sheridan situation the incident here did not involve a break in a lounge. While the comments made may not have been intended to provoke another employee, it certainly would not be surprising if it were later discovered they had the effect of provoking another employee. Further, while they may not have been said to the person directly there could be no doubt about the fact the grievor's comments were directed at Ms Ferrantone. As well, the comments had an impact on Ms Ferrantone, sufficiently so that they caused her to file a harassment complaint with Human Resources. In my opinion, the employer had cause to discipline the grievor. The issue that remains is whether the measure of discipline issued should be modified. The union seeks to have the grievance succeed in its entirety and did not propose a lesser discipline which may be understandable in the circumstances. Nevertheless, factors to be considered in modifying the penalty include the grievor's 18 years of discipline-free seniority. Factors militating against modifying the penalty include the fact she received a "friendly reminder" about her language on September 19. More significantly the fact the grievor feels she did nothing wrong to warrant any discipline is disturbing. There has been no apology and when -13 - asked why not she says it was never brought up and, further, that Ms Ferrantone has not offered to apologize to her. In my view, the grievor has, by her actions, opened the door to the employer to mete out discipline for her behaviour. While a one-day suspension as a first offence may seem harsh she must be made aware that her language must improve or she will likely encounter further discipline. In these circumstances I accept the employer's disciplinary response to be reasonable and ought not to be interfered with. Accordingly, the grievance is hereby dismissed. Dated at Kingston, Ontario, this 13th day of March ,2007.