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HomeMy WebLinkAboutDrysdale 09-06-04 IN THE MATTER OF AN ARBITRATION JUN 2 5 2009 BETWEEN: Ontario Public Service Employees Union, Local 280 Union -and- Peel Housing Corporation, Owned And Operated As Peel Living Employer IN RESPECT OF: The Grievance of Stephen Dlysdale dated February 11, 2008. BEFORE: M.V. Watters, Sole Arbitrator APPEARANCES FOR THE UNION: M. Bevan, District Grievance Officer S. Drysdale, Grievor APPEARANCES FOR THE EMPLOYER: A. Dinnert, Senior Legal Counsel, Region of Peel L. Parsons, Supervisor Employee Relations M. Kavalchuk, Employment Coordinator B. Colavecchia, Manager Residential Operations P. Rengasami, Residential Property Manager HEARINGS: December 12,2008 and May 7, 2009 in Oakville, Ontario -AWARD- 2 [1] This proceeding arises from the grievance of Mr. Stephen Drysdale dated February 11,2008. The grievor therein challenges a seven (7) day unpaid suspension imposed by the Employer by letter dated February 6, 2008. [2] The above-mentioned letter, signed by Ms. Par Rengasami, Property Manager, reads as follows: "This will confirm our meeting of Janumy 30th when we discussed various ongoing issues that pertain to your perfOlmance as Superintendent at Caroline and William Street. Email Protocol In a written warning you received dated April 19, 2007 I reviewed the email guidelines that all Regional Employees must follow. A copy of that policy was attached to the discipline memo you received. Despite this, you have been sending inappropriate emails to staff, some regarding clients that are inappropriate and contains negative message e.g. suggestions that a certain resident His in heat", etc. Service Rooms including Storage The storing of your personal belongings has been an ongoing issue at Caroline and as such you received a written warning dated June 14, 2006, advising you to refrain from using the service rooms at the site to store your personal effects. In the fall of 2007, for the second time since you received the written warning, I arranged for additional help to clean up and reorganize the workshop, storage rooms and your office. In December 2007, I noticed that you had placed various pieces of furniture including, a desk, a sewing machine, chair, bench, etc. in the garbage room at Caroline. On January 17, 2008, I reminded you that these items must be removed as soon as possible. On January 30th these furnishings were still in the garbage room. Upon checking the storage room at the back of the building, the same day, I noticed you have a freezer, a chest of drawers, and a lot of garbage again stored in this room. 3 d Cleaning Supplies On January 17, 2008, I asked you to remove the cleaning supplies which were recently delivered and still in boxes, from the floor in the garbage room, and to place them in the storage room. On January 30th this task was still not completed. It is clear that previous disciplines regarding your performance are being ignored as you continue to display inappropriate behavior, a failure to follow instluction, and poor work ethics which overall results in very poor quality of service. As such, you are hereby suspended without pay for seven (7) days, to be observed on, Saturday, February 9 to February 20, 2008. You are expected to return for your scheduled shift on Thursday, February 21, 2008. Any future incidents of a similar nature may result in further disciplinary action up to and including tellnination of your employment.................................................... .. " [3] Peel Living is a division of the Region of Peel. It provides social housing, on a geared to income basis, to approximately seventy-one hundred (7100) tenants in seventy (70) buildings located throughout the Region. [ 4] Ms. Rengasami and Mr. Bruno Colavecchia gave evidence on behalf of the Employer. Ms. Rengasami is a Residential Property Manager. She has occupied such a position for seventeen (17) of the nineteen (19) years she has worked for the Employer. At the time material to this grievance, her portfolio was comprised often (10) buildings, including those located at 4 Caroline Street and 92 William Street in Mississauga, Ontario. Both of the aforementioned sites provide housing to senior citizens. The grievor was the Superintendent in respect of both 4 buildings. In this capacity~ he reported to, and was responsible to follow the instructions of, Ms. Rengasami. As noted previously, Ms. Rengasami signed the letter of discipline. Mr. Colavecchia is the Manager of Residential Operations. He oversees the eight (8) Property Managers and the overall operations at the seventy (70) building sites. [5] The grievor was the sole witness to present evidence for the Union. He has twenty-seven (27) years of experience as an onsite Superintendent. He has worked for the Employer since 2001. Prior to that year, he was employed in a similar capacity on a provincial basis. At the time relevant to this proceeding, the grievor was on modified duties. The grievor occupied a ground floor unit at 4 Caroline Street as his residence. [6] The building at 4 Caroline Street has both a garbage room and a storage room on site. The former is used to compact garbage. The latter is used for the storage of building supplies. I am satisfied that the storage of personal items is not permitted in either room. Simply stated, the rooms are intended to serve other ends and such storage could potentially create a health and safety hazard. [7J Ms. Rengasami testified that she attended at the Caroline Street building in December 2007. She stated that the visit occurred on either December 3rd or December 13 th. It was her evidence that while there, she noticed that the grievor had placed some of his personal belongings in the garbage room for storage. The 5 items were described in the subsequent suspension letter as "various pieces of furniture including a desk, a sewing machine, chair, bench, etc....". Ms. Rengasami maintained that she spoke to the grievor and asked him to remove his personal belongings from the garbage room. She recalled that the grievor then told her the items belonged to his son. Ms. Rengasami denied that the grievor informed her he was waiting for his son to help him move the furniture. Lastly, Ms. Rengasami advised that there had been no flood at the premises in the period immediately preceding her December visit. [8J Ms. Rengasami next returned to the Caroline Street building on January 17, 2008. She then observed that the grievor)s personal belongings had not been removed from the garbage room. Ms. Rengasami testified that she reminded the grievor that he could not keep his property in the garbage room and that it had to be moved. It was her evidence that she told him the various items had to be moved "as soon as possible". She stated it was her understanding from the exchange that the grievor was "to take care of it". Ms. Rengasami acknowledged that she did not then provide the grievor with a definitive deadline. Ms. Rengasami recalled that during the course of the conversation, the grievor advised her that he was holding the items for residents. [9J Ms. Rengasami further testified that during her visit to the Caroline Street building on January 1 ih, she noticed that some recently delivered cleaning 6 supplies were on the floor in boxes in the garbage room. She stated that she then instructed the grievor to move the supplies to the storage room. Ms. Rengasami acknowledged that the grievor could move the aforementioned supplies one at a time given his prior injury. [10] Ms. Rengasami had a monthly onsite meeting with the grievor on January 30,2008. She then observed that the grievor's personal belongings were still on the floor in the garbage room and that he had not moved the cleaning supplies to the storage room, as requested. She noted that the grievor did not provide any explanation as to why the items had not been moved. In cross-examination, Ms. Rengasami stated that she did not believe the grievor had moved some of his fmniture out of the garbage room as, in her words, "there was still a lot of furniture there". She subsequently acknowledged the possibility that he may have moved some of his property. She added, however, that it was "not apparent he moved much". In cross-examination, Ms. Rengasami also agreed that it was possible the grievor may have started to move the cleaning supplies. Finally, Ms. Rengasami further agreed that the grievor never refused to move the items during their discussions in December 2007, and on January 17 and January 30,2008. She emphasized, however, that "he just never moved them". 7 [11 J Ms. Rengasami acknowledged that a flood occurred in the Caroline Street building on or about December 31, 2007. She was copied on the following email of January 2, 2008 which the grievor forwarded to Ms. Mary 10 MacCrae: "good morning to all hope you enjoyed your holidays as we begin a new year Mary Jo most of the problms (sic.) were in unit 508 and 408 unit 408 was only a small amount of water and 1 wet rug which bi view took care of with vacumes (sic.) and fans however my unit 105 the stuco (sic.) on my living rm cieling (sic.) was destroyed and there are a lot of wires inside for bell and phone and goodness knows what else is inside that I cannot see. 11 Ms. Rengasami testified the grievor did not tell her during their meetings in December 2007 and January 2008 that he had moved his personal belongings into the garbage room because of flood damage to his unit. Indeed, it was her evidence that she first learned of such a defence or excuse on reading the grievance form dated February 11, 2008 which referenced flooding in his personal unit. Ms. Rengasami doubted that the grievor moved his furniture into the garbage room because of the flood, given she had seen the property there prior to December 31, 2007. [12J As per her normal practice, Ms. Rengasami documented the meeting of January 30, 2008 on a Touch Base FOlm. The form reads, in part: " ... .. .. .. .. . t . .. . a . . . .. . .. , ... , + .. ... .. ... .. ~ .. .. ... .. , . ... ... .. . .. . . . .. .. .. ... .. . .. .. .. .. .. ... .. ... ... .. .. . . . . .. .. ... .. . .. .. ... .. .. ... .. .. .. .. .. .. .. .. .. Supervisor Support .. . ... .. .. ~ ... . ... ~ .. .. ~ .. .. .. .. .. :I" .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. II . . . . t .. .. . .. .. , . .. . .. .. .. ... .. .. .. .. .. .. .. .. .. .. .. .. BId. inspection scheduled for Feb. 15/08. 8 Other matters. ... . . . . . .... . .. .. .. .. .. . .. . . . . .. ...... .. . . .. ......... . . . . . . ..... ... 4. Furniture in garbage Rm. still outstanding-personal belongings spoke to Steve last week Jan. 17/08. 5. Supplies still on floor in garbage Rm. Jan. 17/08-spoke to Steve " . . . . . .. .. .. .. .. .. .. .. .. .. .. .. .. . . . ~ . . .. . t .. .. It .. .. .. ... .. .. .. . .. .. .. .. . .. . .. i' .. .. . .. .. .. ;. . . .. .. .. .. . .. .. .. .. .. .. .. .. .. .. .. .. .. .. Ii Ii . In cross-examination, Ms. Rengasami acknowledged that the above form did not record the fact she spoke to the grievor in December 2007 about moving his personal items from the garbage room. She reiterated, however, that she did speak to him about the matter at that time. Ms. Rengasami also denied that she told the grievor the items had to be moved by February 15,2008. In her words, the building inspection was "something different." [13J As noted, the disciplinary letter of February 6~ 2008 also mentions a breach of the Employer's Email Protocol. More specifically, it asserts that the grievor sent inappropriate emails to staff, some of which contained inappropriate and negative conunents regarding clients. [14J Ultimately, the Employer relied on six (6) emails which the grievor forwarded to other staff. Ms. Rengasami was copied on all of these emails. The evidence surrounding same may be summarized as follows; 1. Email to Kuldip Bains, Residential Service Representative~ dated October 26, 2007. In this email, the grievor referenced an older male tenant who was continually allowing young women to visit him in his unit. He claimed that one (1) of the women was a stripper by trade and that she had 9 been previously jailed for a drug offence. The grievor noted that this woman had been removed from the building by police, only to return at a later date. The grievol' expressed concern about the potential for a robbery to occur and for senior abuse. He further noted the physical and mental state of the tenant, as well as the poor condition of the unit. The grievor asked Mr. Bains for advice as to how to best proceed. Mr. Rengasami testified that she was concerned about the email as it contained the grievor~s personal opinions without any supporting facts. When asked whether she discussed this email with the grievor, Ms. Rengasami stated that she had on-going dialogue with him concerning the way he wrote emails generally. She testified that the grievor was instructed to complete an Incident Report in the event of an incident, and to specify facts, dates and times therein, so that the problem could be properly addressed. Ms. Rengasami further stated that she instructed the grievor to refer any disagreements between tenants or other anti-social issues to a Residential Service Manager. In her cross-examination, Ms. Rengasami did not recall speaking to the grievbr about this particular email. More specifically, she did not remember telling him at the time that the email was inappropriate. 2. Email to Kuldip Bains dated October 3 L 2007. In this email, the grievor referenced the same tenant and female person as he did in his earlier email of October 26th. He referred to the tenant as "snaky" (sic.) for again letting the woman into his unit. Ms. Rengasami testified that she was concerned about the email for two (2) reasons. First, the grievor appeared to suggest that the tenant in question did not have the right to have visitors. Second, she thought the grievor was insinuating that a sexual relationship existed between the tenant and the woman. Ms. Rengasami initially could not recall if she discussed this email with the grievor. She repeated that she and the grievor talked a lot about emails.Ms. Rengasami added that she spoke to the greivor about this tenant and told him that little could be done, in the absence of a disturbance, if a resident invites a visitor to their unit. In cross-examination, Ms. Rengasami claimed that ]0 she did recall talking to the grievor about this email. She did not recall if she informed him its content was inappropriate. 3. Email to Kuldip Bains dated December 28. 2007. In this email, the grievor recorded that a female tenant made a complaint of a male tenant making advances towards her. He made the following comment in the body of his email: Hthis boy must be in heat or something". Ms. Rengasami testified that she was concerned about the grievor's use of unprofessional language in his email. She further stated that the grievor should have completed an Occurrence Report and then contacted a Residential Service Representative. Ms. Rengasami initially said that she could not recall if she spoke to the grievor about this particular email.ln cross-examination, she indicated that she did remember talking to him about the "in hear' comment. Ms. Rengasami later testified that perhaps she did not discuss the email with the grievor and that she simply recalled being bothered by the comment. She acknowledged that she did not inform the grievor that the email was inappropriate. 4. Email toRayCatney.Maintenance Call-Line Representative. dated January 9.2008. In this email, the grievor advised Mr. Catney that he needed a work order number in order to replace the stoves in two (2) units. The grievor further advised Mr. Catney that he was "bssier (sic.) than a blue arss (sic.) fly in a wind storm". Ms. Rengasami testified that she was concelned about the email as the language used therein was not very professional or business like. Ms. Rengasami stated that she did later speak to the grievor about the above comment, as she did not know what it meant. She recalled the grievor informed her that it was slang used in Eastern Canada to describe someone who is very busy. Ms. Rengasami acknowledged that she laughed on receipt of this explanation. She asserted, however, that she verbally told the grievor the language was inappropriate for email purposes. 11 5. Email to Kuldip Bains dated January 25. 2008. In this email, the grievor referenced two (2) tenants who were living together notwithstanding they each had a separate unit. He noted that following a "domestic disputeH, the male tenant would be "back in her nestH. The grievor further advanced the opinion that "it's a bit wierd" (sic.). He also made the following comment in the email: "2 incomes in one unit wow how nice". Ms. Rengasami testified that she was concerned about the grievor speaking of domestic disputes between tenants. She could not recall if she spoke to him about this particular email. 6. Email to Shelley Lanna, Residential Service Representative. dated January 28,2008. In this email, the grievor referenced a tenant who had a complaint of noise in his unit emanating from the furnace. He described the tenant as a "very difficult person" who constantly complained. The grievor suggested in the email that it might "be best to sick the boss on him" in order to "end his little pitty party". Ms. Rengasami testified that she could not recall speaking to the grievor about this email and telling him that it was inappropriate. She did, however, seem to recall speaking to him about the "sick the boss on him" comment. [15J Ms. Rengasami referenced the Employer's Email Policy and noted that a copy of same had been given to the grievor in April 2007 after he received a written wmning in respect of an em ail related issue. It was Ms. Rengasami'sview that the grievor's e-mails in the period October 26,2007 to January 28,2008 violated the policy in the following respects: (i) they employed aggressive or accusatory language and were written in a mean spirited or abusive tone; (ii) they 12 were not subject to any reasonable~expectation to privacy and might, therefore, have to be disclosed in any subsequent legal proceeding to the Employer's detriment; (iii) they might serve to undermine a tenant's right to privacy on strictly personal matters; and (iv) some of the issues mentioned could have been addressed expeditiously over the phone in a way that would have avoided her other COnCelTIS. It is clear on the evidence that Ms. Rengasami did not put her conCelTIS about the emails into written form prior to the issuance of the disciplinary letter of FeblUary 6, 2008. [16] Following her meeting with the grievor on January 30,2008, Ms. Rengasami met with Mr. Colavecchia and Ms. Leanne Parsons, Supervisor Employee Relations, to discuss the ongoing issues she was having with him. A decision was then made to impose the seven (7) day suspension here in issue. Ms. Rengasami advised that, in reaching this decision, the Employer considered the grievor's history of refusing to follow instlUctions and his prior record of discipline. The grievor's somewhat lengthy record was not disputed by the Union. I note that the discipline immediately preceding the instant suspension was a five (5) day suspension imposed on June 25,2007 for abusive insubordinate behavior and refusal to accept instluctions. The letter of suspension, reproduced at the outset of this Award, was given to the grievor at a disciplinary meeting held on Febluary 8, 2008. 13 [17] The grievor agreed that he stored personal belongings, including a sewing machine, a ten inch (10") colour television and a desk, in thegarbage room. In cross-examination, the grievor acknowledged that he understood the garbage room was not to be used for this purpose. He fu11her acknowledged that he had previously been disciplined for storing personal items in the storage room. [18] The grievor testified that he moved his personal belongings from his unit into the garbage room because of a flood which started in an upper apartment. It was his evidence that water flowed downward and into his unit causing damage to the bulkhead, which contained an assortment of electrical wires for the telephone, cable and fire alalm systems. The grievor advised that the bulkhead had to be replaced and that he intended to return the items to his apartment on completion of the repairs. The grievor's email of January 2,2008, concell1ing a flood which occUlTed on or about December 31, 2007, has been previously referenced. In cross-examination, the grievor asserted that there was an earlier flood in late November 2007, which also caused damage to his unit. It seemed to be the thrust -:'of the grievor's evidence that it was this earlier flood which caused him to move his personal items into the garbage room. He stated that he elected to do so because there was insufficient space in his small apartment to store the items. [19J The grievor stated that he did not recall Ms. Rengasami telling him in December 2007 to move his personal belongings out of the garbage room. He 14 denied having then said that the items belonged to his son. The grievor did recall having a conversation with Ms. Rengasami on January 17,2008 about both his personal belongings and the cleaning supplies. More specifically, he testified that she then asked him to move these items out of the garbage room and that he agreed to do so. It was the grievor's evidence that Ms. Rengasami did not give him a deadline on January 1 ih for moving the furniture. He also maintained that he never refused to move the items when speaking with her on that day. The grievor maintained that he did not tell Ms. Rengasami on January 1 ih that the property in question belonged to his son or that he was saving it for a tenant. He did, however, recall informing her that his son would help him move the personal belongings out of the garbage room. Lastly, the grievor recalled telling Ms. Rengasami that, because of his injury, he would move the cleaning supplies one (1) jug at a time. [20] The grievor testified that he met with Ms. Rengasami on January 30,2008 in the Recreation Room at the Caroline Street building. It was his evidence that he had already moved some of the items by then. It was his further evidence that Ms. Rengasami told him during the meeting that all of the items had to be moved from the garbage room by February 15, 2008, this being the date on which she planned to conduct a building inspection. The grievor stated that he considered the aforementioned date as a deadline for moving the items. He referenced the Touch Base Form in SUPPOli of the validity of this belief. The grievor also claimed Ms. 15 Rengasami informed him that he would be suspended ifhe failed to move the items by February 15th. In cross-examination, the grievor acknowledged that the grievance form did not reference the alleged deadline ofFebrumy 15th. He also agreed that employees in his position "usually like to do what our supervisor tells us." [21] The grievor stated in-chief that, prior to the receipt of the letter of discipline ofFebluary 6, 2008, no manager ever spoke to him about the emails the Employer considered to be problematic. He also advised that he was not shown the emails at the subsequent disciplinary meeting of Februmy 8, 2008. It was his evidence that he first saw them in the course of this proceeding. [22J In his cross-examination, the grievor maintained that he knew how to properly communicate by email. From his perspective, the emails in question were written in an appropriate fashion. In this regard, the grievor suggested that he was merely reporting facts to the Residential Service Representative about problematic occurrences in the building, as directed. He also asselied that it was appropriate to use the word "sneaky" in respect of the older male tenant, given the full context of what was occurring with that tenant. With respect to the "in-heat" comment found in the email of December 28, 2007, the grievor insisted that he was just repeating the tenant's statement to him. He acknowledged, however, that the email may not have been appropriately worded. The grievor disputed Ms. Rengasami' s claim that 16 she regularly spoke to him about his emails. It was the gist of his evidence that she only spoke to him about the "in heat" comment. The grievor asserted that if problems with his emails had been brought to his attention, he would have tried to address the issue. [23J In closing argument, counsel for the Employer obselved that the "hemt of the matter" was the storage of the grievor's personal belongings in the garbage room. She described the other two (2) issues relating to the cleaning supplies and emails as "ancillary". Counsel emphasized, however, that they were not included in the discipline just to build a case, as alleged by the Union. She added that the penalty imposed was not calculated on the basis of three (3) sepal'ate components. Counsel submitted that, in view of the grievor's prior disciplinary record, a seven (7) day suspension was the appropriate next step in the application of progressive discipline. [24J Counsel for the Employer noted that the grievor stored personal belongings in the garbage room and failed to remove same when requested to do so by Ms. Rengasami. On her view of the evidence, such request was made in December 2007 and then again on January 17,2008. In counsel's judgment, it was material that the items had not been moved as of January 30, 2008. It was her submission that the grievor knew he had no right to store personal property in the garbage 17 room. She observed, in this regard, that he had previously been disciplined for similar conduct. [25J Counsel described Ms. Rengasami's requests as a clear and straightforward order. She stressed that the grievor failed to comply with same over a lengthy period of time. Counsel argued that, while the grievor did not expressly refuse to comply, his failure to move the personal items was deliberate and amounted to "careless defiance" of a legitimate order. In her submission, the gIievor's conduct was blameworthy and constituted insubordination. Counsel considered it material that the grievor acknowledged he should follow a supervisOlY direction as soon as possible. The Employer relied on the award in Re Trilea-Scarborough Shopping Centre Holdings Ltd. and S.E.I.U., Local 204 (1990), 14 L.A.C. (4th) 396 (Solomatenko) in SUPP0l1 of this aspect of its case. [26] I was asked generally to prefer Ms. Rengasami's evidence over that presented by the gIievor. Counsel argued that the formers' testimony was given in a sincere and honest fashion and should be relied on. In contrast, she described the grievor as "all over the map" in terms of his explanation of the relevant events. Counsel suggested that his evidence was "conflicted and changing". [27J I was asked to reject the grievor's explanation that he moved his personal belongings into the garbage room because of flood damage to his unit. Counsel noted that this defence or excuse was never presented to Ms. Rengasami and that 18 ~ the latter first heard of it when it was referenced on the grievance form. Counsel further observed that the flood was not addressed during the meeting of January 30,2008 and that it was not documented in the Touch Base Form of the same date. She suggested that Ms. Rengasami would likely have recorded such an explanation in the form, if it had been raised by the grievor at the meeting. Counsel referred to this part of the grievor's defence as Han invention after the fact". [28] Counsel submitted that the grievor's email of Janumy 2,2008 confirmed that the impact of the flood of December 31, 2007 was minor in terms of effect on the grievor's unit. On her analysis, the furniture here in issue was not large or difficult to move. She argued that, in the circumstances, it did not have to be moved from the unit in order for repairs to the bulkhead to be completed. Counsel further emphasized that the grievor's property was already in the garbage room as of early to mid December 2007. She argued that, as a consequence, the flood of December 31 st could not serve as a defence for the grievor's actions. Additionally, it was submitted that there was no earlier flood, as suggested by the grievor. Counsel described the asseltion as "out of the blue" and observed that it was made for the first time during the grievor's evidence. She noted that the suggestion of an earlier flood was not put to Ms. Rengasami during her cross-examination. [29] I was similarly urged to reject the grievor's evidence to the effect that he was given a deadline of February 15, 2008 for purposes of moving his personal 19 property and cleaning supplies ti"om the garbage room. On counsers analysis, the date of February 15th related to a planned building inspection and was not intended to serve as a deadline for another distinct matter. Counsel referenced the fact the Touch Base FOlln made no mention that a suspension would follow a failure to comply by the alleged deadline. Additionally, she suggested that if, in fact, a deadline had been given, it would likely have been cited by the grievor on his grievance form. Counsel submitted that Ms. Rengasami would not likely have imposed discipline on February 6, 2008 if a deadline ofFebruaty 15th had previously been given. She suggested such a course of action would have exposed Ms. Rengasami to a serious complaint that she acted in bad faith. In any event, counsel asserted no deadline was neceSSalY in this case given the grievor's evidence that he understood the need to follow a supervisor's instruction. [30] In terms of the cleaning supplies, counsel noted the grievor's acknowledgement that they had to be moved to the storage room and that he offered no excuse for not doing so in the period Janumy 1 ih to January 30th. In her submission, the grievor's failure to move the supplies as requested was symptomatic of the same type of insubordination exhibited by him in respect of the movement of his personal belongings. [31] On counsel's reading, the emails were clearly inappropriate in terms of tone and content. She referenced Ms. Rengasami's evidence that she specifically spoke 20 to the grievor about the "blue arse fly" and~"in heat" comments. Counsel further referenced Ms. Rengasami's statement that she r.egularly spoke to the grievor about his emails. She suggested that this discussion would likely have encompassed the other emails deemed by the Employer to be problematic. [32] For all of the above reasons, it was the position of the Employer that the grievance should be dismissed. [33] The Union's representative asked me to conclude that Ms. Rengasami did not speak to the grievor in December 2007 about moving his personal belongings fi'om the garbage room. He noted that Ms. Rengasami did not know the precise date of the discussion and that she made no notes of the meeting. It was his submission that if the December discussion in fact occurred, then Ms. Rengasami would have likely documented the exchange in the Touch Base Form, as she did with respect to the Janumy 1 th instructions. The Union's representative fuliher noted that the exchange was not specifically referenced in the suspension letter. The letter, instead, simply mentioned what Ms. Rengasami "noticed" during her visit to the building in December. From the perspective of the Union, it was material that the disciplinmy letter failed to state the grievor was then instlucted to move his personal property from the garbage room. [34] The Union's representative acknowledged that Ms. Rengasami told the grievor on January I th to move his personal items and the cleaning supplies from 2] the garbage room. He argued that the grievor, in fact, had moved some of the items by January 30th. On his analysis, the question was really whether the grievor moved the items fast enough. In this regard, he observed that the grievor was not given a deadline of January 30th for the removal of the property. Rather, the Union's representative submitted that the only deadline provided was the February 15th date. I was asked to find that the grievor reasonably believed that he had until that date to move all of the items and that, as a consequence, he could not be disciplined prior thereto for any failure to do so. [35] The Union's representative argued that the Employer's failure to provide the grievor with a specific deadline prior to January 30th, in conjunction with the fact he had moved some of the items before that date, precluded a finding that the grievor was insubordinate and that discipline was merited. He emphasized that the grievor had been given a clear deadline in June 2006 in similar circumstances. It was submitted that the instruction "as soon as possible" was not sufficiently clear given that the grievor's work history appeared to indicate he was an employee who required clear direction. On a related issue, the Union's representative argued that the grievor was not required to mention the provision of a deadline on his grievance form. He strongly asserted that it would be wrong to make any adverse findings against the grievor on credibility, or otherwise, on the basis of the fact the 22 grievance was silent on its face vis a vis a deadline having been provided and breached. [36] The Union's representative stated that Ms. Rengasami was aware of the flood and its impact on the grievor's apartment through being copied on the email of January 2,2008. He also referenced the grievor's evidence as to a prior flood having occurred in late November 2007. He claimed that the Employer did not challenge the grievor's evidence on this point and that it failed to check its records to determine if such a flood actually occurred. It was asserted by the Union that the instant hearing was the grievor's first opportunity to present his account of the events. The Union's representative observed that the grievor was not asked for an explanation at the disciplinary meeting held on February 8, 2008 and that he was then simply presented with the letter of suspension. [37] It was the position of the Union that no weight should be attached to the email issue. The following reasons were advanced in support of this position: on the Union's view of the evidence, Ms. Rengasami admitted that she could not recall speaking to the grievor about the contested emails; the absence of any documentation to establish Ms. Rengasami did speak to the grievor about them; Ms. Rengasami did not reply to the grievor after each of the emails to inform him that they were inappropriate; the email issue was not discussed in December 2007 nor at the meetings of January 17 and January 30, 2008; and Ms. Rengasami's 23 admission in cross-examination that she did not know whether she would have raised the emails in the absence of the other problem relating to the furniture and cleaning supplies. On the Union's analysis, Ms. Rengasami improperly waited until she had "a collection" of emails and then "pounced" on the grievor for purposes of "piling on" discipline. [38] For all of the above reasons, the Union's representative asked me to allow the grievance and provide the appropriate monetary relief. In the alternative, he submitted that I could reduce the penalty if I found the grievor failed to move the items in question as the result of the lack of clear direction from the Employer. [39] I am satisfied the grievor was aware that he was not permitted to store personal items in the garbage or storage rooms. He agreed that he was aware of this prohibition during his cross-examination. Additionally, the grievor had previously received a written walning dated June 14, 2006 for storing personal property in the storage room. I note that the letter of discipline in that instance clearly indicated that such storage was not permitted by the Employer. [ 40J I accept that Ms. Rengasami went to the Caroline Street site on either December 3rd or December 13th, 2007 and, while there, observed that the grievor had put some of his personal belongings into the garbage room for storage. While the precise communication she had with the grievor at that time is not entirely 24 clear, I have been persuaded that she told him to remove his belongings from the garbage room. [41J It is apparent that the Touch Base Form does not say anything about Ms. Rengasami speaking to the grievor in December 2007 about moving his personal items from the garbage room. Similarly, the letter of suspension dated February 6, 2008 is silent on that point. The letter states that Ms. Rengasami noticed that the grievor had placed various pieces of his furniture in the garbage room. It also contains the following statement: "On January 17, 2008, I reminded you that these items must be removed as soon as possible". In my judgment, Ms. Rengasami's use of the word "reminded" is supportive of her evidence that she told the grievor in December that his personal items should be moved from the garbage room. [42J . I further accept that Ms. Rengasami did not give the grievor a definitive deadline on January 17,2008 with respect to the removal of the personal items. I am satisfied, however, that he was then told to do so "as soon as possible". Given his prior discipline, the grievor should have known there would be a disciplinary consequence should he fail or refuse to comply with his supervisor's direction. In the circumstances, I am unable to find that Ms. Rengasami gave an equivocal or ambiguous direction that was capable of being misunderstood. On my asseSSlnent of the evidence, she made it very clear to the grievor that his personal property was to be promptly removed from the garbage room. 25 [43] It is evident that the cleaning supplies were not in the garbage room at the time of Ms. Rengasami's visit to the Caroline Street site in December 2007. The supplies were there, however, at the time of her next visit to the building on January 17,2008. It is common ground that Ms. Rengasami then instructed the grievor to move the supplies from the garbage room and into the storage room. [44] On the evidence, it is clear that most, if not all, of the grievor's personal belongings and the cleaning supplies were still in the garbage room as of Ms. Rengasami's next visit to the site on January 30,2008. At that juncture, the personal items had been in the garbage room for at least six (6) weeks from the time Ms. Rengasami first told the grievor to move them. Similmly, the cleaning supplies remained on the floor of the garbage room some two (2) weeks after she asked the grievor to relocate them to the storage room. [45] I have not been persuaded that the reference in the Touch Base Form to a building inspection, to be conducted on Febluary 15,2008, amounted to a deadline by which the grievor was to remove his personal items and the cleaning supplies from the garbage room. In my judgment, that inspection was scheduled for a different, and much broader, purpose, namely, to assess the condition of the entire building. Additionally, if February 15th was intended as a deadline, I do not think that Ms. Rengasami would act to impose discipline prior to its expiration. Clearly, such action would portray her in a very bad light and would certainly provide the 26 grievQr with an effective defence. Ultimately, I do not accept that Ms. Rengasami, given her extensive experience as a Property Manager, would act in such fashion. I also note in this regard that the grievance form does not reference that the Employer breached its own deadline by disciplining the grievor prematurely. [ 46] It is not a prerequisite in all cases of insubordination for the supervisor to provide the employee with a definite deadline for complying with a workplace instruction. Failure to comply with such an instruction in the absence of legitimate excuse, even when a firm deadline is not imposed, can amount to disciplinable insubordination. In this instance, I accept that the grievor never expressly refused to move the items in question. The problem is that he simply chose not to follow the clear inshuctions of Ms. Rengasami. On my assessment of the evidence, the grievor clearly knew that he should move the items as soon as possible. In these circumstances, I cannot find that there was a real need for Ms. Rengasami to establish a deadline for completion of the task. This is especially so in view of the grievor's acknowledgement that he understood the need to follow supervisory direction. [ 4 7J As mentioned, the grievor asserted that he had to store his personal belongings in the garbage room because of a flood which caused damage to his unit. I note that the occurrence of a flood was first raised as a defence or excuse in the grievance fOlID. The flood was not advanced as a reason for the griever storing 27 his personal property in the garbage room in any of his meetings with Ms. Rengasami in December 2007 and January 2008, including the monthly Touch Base meeting of January 30th. [48] The only flood documented in the evidence is the one which occurred on or about Decem ber 31, 2007. That flood was the subject of the grievor's email of January 2, 2008, which has been reproduced above. I consider it material that the content of the email, in terms of the description of the flood and the resulting damage, is consistent with the grievor's reference to a flood on his grievance form. In the final analysis, I conclude that both documents refer to the flood of December 31 S\ which started on the fifth floor of the Caroline Street building. What is significant is that this flood occurred after, and not before, the grievor put his personal belongings into the garbage room. Those belongings were there when Ms. Rengasami visited the site on either December 3rd or December 13th. It naturally follows that the flood of December 31 st cannot serve as a defence or excuse for the grievor's prior actions. I have not been persuaded that there was an earlier flood in November 2007, as claimed by the grievor, which required him to store personal property in the garbage room. If such a flood actually motivated the grievor to act as he did, I think it more likely than not that it would have been mentioned prior to his testimony in this case. 28 [49] Two (2) final points need to be made with respect to, what I will refer to as, the flood defence. First, that defence or excuse is seri<?usly undermined by Ms. Rengasami's evidence that the grievor initially told her that the furniture belonged to his son and that he later infOlmed her that the items were being stored for another tenant. Second, it is clear that the flood cannot serve as a reason for not moving the cleaning supplies in a more timely fashion. [50] Generally, I prefer the evidence presented by the Employer witnesses over that presented by the grievor. The latter's evidence was in many instances unclear, imprecise and inconsistent. It also seemed to be contrived in order to advance his interests in this proceeding. The following two (2) examples are illustrative: 1. The grievor initially testified that some of his personal belongings were moved by the time of the Janumy 30th meeting with Ms. Rengasami. He later said that all of the furniture was moved by that date and that Ms. Rengasami was so advised. The grievor then repeated the assertion that there was no furniture in the garbage room on January 30th and insisted that Ms. Rengasami was then only concerned about the cleaning supplies. The grievor, in substance, claimed that there was no basis for discipline vis a vis the fulniture, as it all was moved by the date of the Touch Base meeting. At the end of the grievor's evidence, this Arbitrator asked him when he had moved his personal belongings out of the garbage room. At that point, he stated that he did so "a couple of days after" his meeting with Ms. Rengasami on January 30th. This response was clearly in conflict with his earlier evidence about when he moved the fwniture. I have a difficult time accepting that the grievor changed his evidence because he was confused by the questions asked by Employer counsel. Rather, I think he changed his version of events because he then realized that the earlier account was inconsistent 29 with Ms. Rengasami' s testimony as to what she - observed in the garbage room on January 30th. Additionally, if he was correct, there would have been no need for her to subsequently speak to Mr. Colavecchia and Ms. Parsons about the matter and to later include the issue in the letter of discipline. I further conclude that the grievor realized that his statement, that all of the fU111iture was moved by January 30t\ was inconsistent with his claim that Ms. Rengasami gave him a deadline on that date. ]1. At one point in cross-examination, the grievor said that two (2) other Property Managers, Ms. Sheri Wiggins and Ms. Ida Wong, told him that he could put his personal belongings in the garbage room. When the matter was pursued, the grievor acknowledged that these individuals were not his supervisors at the time material to this dispute and that the communication received from them related to an earlier situation. While it is not entirely clear why the grievor referenced these other superVisors, I was left with the impression that he sought to convey the message that he had authority to store his personal items in the garbage room in the December 2007 to January 2008 period. Simply stated, after a consideration of all of the evidence, I am satisfied that the evidence led by the Employer is substantially more credible and reliable. [51] I have considered all of the evidence and argument on the email issue at some length. After so doing, I conclude that the grievor was not deserving of discipline in respect of the emails sent in the period October 26,2007 to January 28, 2008. My reasons for this conclusion are as follows: 1. I accept that some of the grievor's comments in the cited em ails were inappropriate and that his concerns should have been communicated in a more professional fashion. I have not been persuaded, however, that the content and tone of the 30 emails justified the imposition of discipline as of February 6, 2008. In my judgment, the emails reflect a performance issue which should first be addressed in training with respect to the appropriate content and tone for emails and the expectations the Employer has of its employees under its Email Policy. I note, in this regard, that the prior discipline was not premised on inappropriate content but rather on Hthe constant use of email without waiting for an appropriate response time". Clearly, if the grievor failed to respond to remedial training and/or instIuction, the Employer in future might have no alternative but to resort to discipline; 11. I was given no reason to doubt Ms. Rengasami's evidence that she spoke generally to the grievor about the content of his emails.Itis clear, however, that she did not speak to him about several of the emails here in issue and that she did not inform him that they were inappropriate. In my judgment, if Ms. Rengasami was concerned about the emails, she should have initiated some cOlTective action on a timely basis. Here, the evidence discloses that the Employer's concerns about the grievor's manner of writing emails, and its intention to respond to same through discipline, was first communicated to him at the disciplinmy meeting of February 8, 2008. To repeat, I think that Ms. Rengasami should have acted sooner to address the identified problems, rather than letting the emails pile up and then tag them on to other forms of misconduct for disciplinary purposes. I note that Mr. Colavecchia, in cross-examination, acknowledged that it would be preferable to address inappropriate emails in a timely fashion so as to avoid any repetition in future; and Ill. I note that the subject of emails was not raised by Ms. Rengasami at the Touch Base meeting of JanualY 30, 2008. This leads me to question how serious an issue this was in the mind of the Employer. Ms. Rengasami was asked whether the emails would have been included as a ground for discipline if the personal belongings and cleaning supplies had been moved by January 30, 2008. I recorded her answer as, 31 HI don't know". She then added that, "something else might have triggered it". At another point in her evidence, Ms. Rengasami stated that if all of the items had been moved by the above-mentioned date, then that "very like Ii' would have been the end of it. I took from this answer that if the personal items and cleaning supplies had been removed, that there likely would have been no discipline given in respect of the emails. In sho11, I have not been persuaded that the cited emails constitute a stand alone ground for discipline. [52J For the reasons expressed above, I find that the grievor was insubordinate in not moving his personal belongings from the garbage room in a timely fashion, as directed by Ms. Rengasami, his supervisor. I am also inclined to agree that his failure to relocate the cleaning supplies to the storage room reflected a tendency on his part to disregard legitimate instructions from his managers. Ultimately, I am satisfied that the Employer was entitled to resort to discipline in order to address the grievor's insubordination. Given that the immediately preceding discipline was a five (5) day suspension, I conclude that it was appropriate for the Employer to respond to the misconduct through a seven (7) day suspension. To be clear, I think that this level of discipline was justified notwithstanding my finding that the emai) issue did not suppo11 any disciplinary sanction. This is not a case which merits the exercise of discretion to substitute some lesser penalty. [53J The grievance is accordingly denied. Dated at Amherstburg, Ontario this 1../111 32 day of :Tc.ne ,2009. f}1). J. u) a:tfut M.V. Watters