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HomeMy WebLinkAbout1976-0020.Cloutier.76-12-21CROWN EMP~.OYEEL .- 416 964-6426 Suite 405 CRWANCE SETTLEMENT 77 Bbor Street Wei BOAR0 TOiiO.TTO, Ontario~ MS.9 lM2 Between: IN THE MATTER OF AN ARBITRATION Undet- The CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before TNE GRIEVANCE SETTLEMENT BOARD . Mr. R. C..Cloutier (The Grievor And Ministry of Revenue (The Employer) _ D. M. Beatty - Chairman G Griffin 0: Anderson - Member - Member Before: For the Grievor: R. Houlahan - Ontario Public Service Employees lkion For the Employer: E. C. Farragher - Ministry of~Revenue Hearing: December 7, 1076 Provinces Room, Inn of the Provinces Ottawa, Ontario -2- In the grievance which he brought before the Board, Mr. A. Cloutier, employed as a Property Assessor 3, grieves that he was, by letter dated January 21, 1976 unjustly accused, by his Valuation Manager, of not performing certain'dutles. By this grievance, Mr. Cloutier has requested that this letter and all of the documentation referred to therein, be removed from his file. At the outset of the hearing, Mr. Farragher, for the employer, argued that Mr. Cloutier's grievance was not arbitrable either under s.17(2) of The Crown Employees Collective Bargaining Act or under the collective agreement between the parties, and that accordingly this Board has no jurisdiction to entertain it. Very simply, it was Mr. Farragher's position that because the letter did not purport In any way to discipline the grievor, because there was no allegation that any provision fn the agreement had been violated and because the letter did not purport to actually effect an appraisal of him, that Mr. Cloutier's complaint could not properly be referred to this Board. Following Mr. Farragher's preliminary objection; and after ensuring ourselves that the procedure we outlined in RE Erikem iU’7.5 had been complied with, we adjourned our hearing into Mr. Cloutier's grievance pendlng our resolution of this preliminary issue. After careful consideration of this matter we are of the view that Mr. Farragher's objection to our jurisdiction has, for the reasons tnat follow, merit both ‘;n law and in lcgic and that accordingly we are without jurisdicticn to hear the merits of IV. Cloutier's ccmp!ain:. I As this Board has noted on.numerous occasions, our jurisdiction to pass on the grievances of persons falling within the scope of The Crown Employees Collective Bargaining Act is founded in s.s.17(2) and s.lB~of that legi~slation. Those sections provide: 17. (2.1 In addition to any other rights of grievance under a EoZZective agreement, an empZoyee claulting, (a) that his position has been Lvpoperiy classified; Ib) that ke kus’been appmised cont+rary to the governing princip2es and standards; or W that he has be& discip2ined or dismissed ‘. or suspended froni his employment titkout just cause, mzy process suck matter in accordance with the hevance procedure provided in the co2 2ective agreement, and fai2ing fin& detezminution under such procedure, tti nritter may be .processed in accordance titk the procedure for final Zetermination appl;icable under section 18. 18.(l) Every colZective-agreement shc22 be deemed to provide that in the event the parties are unab2e to effect ca 8ettkmQnt of any difference8 between them &sing from tke interpretation, appZication, udministmtion or a22eged contmvention of the .afleement, including 6ny question as to whether -..a matter is arbitrabl&, suck matter may be referred for arbitration to .tke Grievance Sett2ement Board and tke Board after’ giving fuZ2 opportunity ‘to the parties to present their evidence and to make their submissions, sF4tt decide the matter and,its decision is final and binding upon the parties and the employee5 covered by the agreement. From those iections it is, to this Board, clear that for a grievance to properly come before us, it must either fall within the terms of the collective agreement or, alternatively, within one of the lettered paragraphs of s.17(2) of the Act. With regard to the former, Article 30 of the collective agreement, provides: -4- 30.2 30.3.1 30.3.2 30.3.3 30.4.1 30.4.2 30.4.3 30.5 An employee,wko believe8 he kas a complaint or a difference with the Employer hall first di8cuse tke complaint or difference with his or ker supervisor within tuenty (201 days of first becoming auare of tke complaint or difference. If uny compluint or difference ie not sati8factorily sett2ed by the eupezvi8or within seven 17) days it may be processed in tke fo2Lming tmnner: STAGE -0h’E Tke employee my file u pievunce in miting with his or ker supervisor. Tke supervisor skczl~ give tke gri%Vor his decision in writing within seven 17) days of tke submission of the grievuncs . STAGE TWO If tke grievance irr not resolved under Stage hi?, the employee nxzy submit the gheVUnC% to tke Deputy Minister or his designee within seven (7) &ye of tke date that he received the decision wzder Stuge One or in the event that no decieicm in writing is received in accordance vitk tke epecified time limits in Stage One. Tke griever my 6ubnit tke grievance ti tke Deputy Minister or his desigxze within .eeven (7) &ys of the date that the supervisor GUE required to g-ive hCe decirtion in writing in accordance with Stage One. Tke Deputy Minister or hi8 designee Shall koZd a meeting with the employer witkin fifteen (15) day8 of tke receipt of tFz tievance and &all give the grievor his decision in oriting vitkin seven (71 &ye of the meeting. If the griever is not satisfied titk the decisb~ of the Deputy Minister or his desiyee or if ke does not receive the decision vzthin the specified timQ the griever may cpp2y t0 the &iQVan&? Settlement Soarc? for (I hearing of the grievance: &thin fifteen (151 days of tFa dcte he received the decision; or I . . ;i -5- 30.6.1 DISMISSAL Any p~obatiomry empZoyee who ie dismissed or FeZeased e&X not be entitl.ed to fiZe a /_ grievance. 30.6.2 Any employee other than a pro?xtionary empzoyee who is dismissed sha?Z be entitled to file a griev@ce at the second stage of the grievozce procedure provided he does so within twenty 1201 day8 Of the date of thie diti88az. 30.7.1 UIION GREVMCE Where my difference between the Bnployer and the Union arises from the interpretation, application, a&hi&ration or alleged contravention of the Agreement, the Union ehuZ1 be entitled to file a grievmrce at the second stage of the grievance procedure provided it doe8 80 Within thirty (30) day8 fO&7hg the occurrence or origination of the cimstances giving rise to the grievance. _ 30.11 The Grievance Settikment Board shall have no ,jurisdiction to alter, change, anend or enhge any provision of the Collective Agreement. _’ From those provisions, which in this respect parallel the direction contained ins.lS,of the Act, it i.s clear that for a grievance to be arbitrable under the,agreement it must, at the very least, allege that there is a difference between the parties "arising from the interpretation, application, administration or alleged contravention of this Agreement? In the present case, on .the facts before this Board, it is manifest that Mr. Cloutier~i grievance does not raise such a difference. Accordingly and if it is to be arbitrable before this Board it must follow, from . what we have sa<d above, that Mr. Cloutier's grievance would ,.. have to fall within the terms of one of the lettered paragraphs 1 of s.17(2) of The Act. More specifically, and there being no , . -6- ,. allegation that he has been improperly classified, to be arbitrable before this Board. Mr. Cloutier must satisfy us that the letter of January 21. 1976 about which he complained, raises an allegation either that he has been improperly appraised under s.l7(2)(b) or that he has been unjustly disiplined under s.l7(2)(c) of the Act. Yith regard to the former provision it is, to this Board, manifest on its face, that the letter of January 21, 1976 could not be characterized as an improper appraisal. To the contrary, on its plain terms, the letter of January 21, 1976 advises that "unless there is a marked improvement" in the future with respect to the matters raised in the letter, the griever's next "merit increase will not be forthcoming" (emphasis added). Very simply where, as in the letter of January 21, 1976, an employee is advised that he may in the future receive a negative appraisal which could result in his merit increase either being denled or delayed, it is implicit in such an admonition that such an appraisal is not being made at that time. Rather the employee is simply being forewarned that such an appraisal is a distinct possibility if certain conduct about which the employer complains is not rectified. Clearly, however, and until such time as it is determined that the employee's conduct has not changed, and the merit increase is actually withheld or delayed,it Cannot, in our view, be said that the employee has actually received an appraisal about which he could grieve. Put somewhat differently we do not believe that every critical letter or memorandum sent to 2n employee about his work performance, which indjcates that future acticn is being conterplated F. - 7 - , unless the.employee is able to alter his work habits, can properly be regarded as an appraisal'under s.l7(2)(b) of the Act. To the contrary we believe that provision anticipates that some formal action, as for example, when an employee receives his annual appraisal, or in the event he or she is actually denied a merit .,. increase has,actually been, taken by the employer. Such an interpretation we believe not only accords with the plain meaning of s.l7(2)(b) which, by its terms, is directed to appraisals which have been made and not to ones which are contemplated in the future, but as well ensures that the' grievance and arbi.tration procedures contemplated by the parties~ and by the Legislation are permitted to function as efficaciously as possible. That is to say if this Board were to accept any other construction of s.l7(2)(b), it would ensure that every letter or memorandum sent ' by an employer to an employee, which cotinted critically on the latter's work performance, could be made the subject of grievance to be brought before this 'Board. As a consequehce,'such a ,~ construction, by bringing anticipated but not yet rehTized decisions of the employer before this Board, could well result in the grievance procedure being 'clogged with, and this Board's attention being diverted to, matters which are at most of marginal significance and which may, in the final analysis, be only o,f hypothetical ~ interest to the parties. \ Nor do we believe that such a ruling as to the meaning of s.l7~(2)(b) .in any way prejudices the rights of an employee who may,be the recipient of such a letter.or memorandum-which is critical of his or her work performance. To the contrary, when, as here, an employee receives such a letter he or she may -a- l she deems expedient, discuss, respond to, and/or challenge any allegations made by the employer. In the result, and only in the event that the employer subsequently relies on such a document as forming part of the basis on which to appraise or evaluate that employee,-in a manner the latter feels to be improper, hill that document, together with the employee's response, become a material and relevant part of the appraisal which can properly be reviewed by this Board. Finally and although it was not seriously pressed by the grievor that the letter of'January 21, 1976 could be characterized as a disciplinary sanction, we would note again that there is nothing which, on the face of that document, would support such a conclusion. To the contrary, on its plain terms that letter was concerned with the grievor's work performance only as it might relate in the future to his not receiving his merit increase. There is no indication that the letter of January 21, 1976 was intended or regarded by the employer as forming or establishing the basis for further dfsciplinary action. Indeed, and to the contrary, Mr. Farragher plainly stated at the hearing that this letter was intended by the employer only as a non- disciplinary consnunication. Accordingly where, as here, the letter was not intended to have a prejudicial effect on the grievor's position in future grievance proceedings, we cannot accept the characterization of it as being disciplinary in notice. Fe Pir3p: Vatker 8 Sons Ltt. (lP731, 4 L..Z.C.(?Z:‘l 251 CXzrS); 2e Ki.tier?v-Clark of Ccc& Lt,‘. (:,C?2) 1 L.A.C. !2?1 44 (&s)/k.J; PC Cm5crct~or: 0-F the Coovrt:i 0: ,.,kr-iZ> (IS?.?) I - ’ - (?c:.: .‘?? <.z-;Fe,a.!, i . .T . I . -9- Moreover and even if it could be said that the letter of January 21, 1976 contains an fmplict warning that disciplinary action might be taken in the future, again we would note that implicit in such a warning is the admission that disciplinary action is not being invoked at that time. Accordingly and in such circumstances we do not believe such a notation could properly be characterized as being disciplinary in nature, Re De RmiZZund . Aircmft of Ccnu& Ltd. ‘11971) 22 L.A.C. ,159 IVeatheriZl). In that regard and with respect to a letter directed to an employee by her employer.in which the~latter 'complained that unless the employee altered,her conduct, it woul'd have "no alternative but to take whatever disciplinary action is deemed necessary", another board of arbitration has written: 1' : '_ iirot every criticism which~an empZoyer a@.resses to an employee constit&es a discipZinary action, LhZess dis&pZinqj action is ;invoZved, however, the &evcme procedure does not contempZate.the ‘processing 0f’cZaims .that criticism Witi& haS been expressed was not wetl-founded..... It &.x&d be added that one distinguishing characteristic of discipZinazy action is that it stakes unZess set ~aside in the course of the grievcme.or crbitration procedure. A letter such as that of Cctober 25, hoyever, serves not as a~record of any inprqer conduct ti the griever ‘s pm-t, but rather simpty as an expression of the employer’s concern. At most, it "puts the employee on notice" with respect tom certain cor&ct. It is not, however, the imposition, of a penaZty for any pcrti-mlar offence. .Te Strc2*orc! Cewral Scscitat Ccr%7rct-:or. 197:, ?cnreq-tee * (kc;he&iZ), Finally, and although we recognize that in certain circumstances certain memoranda nay, even to the ex_tent that they only forewarn of future action that may be taken by tre . i - 10 - employer, be properly regarded as being disciplinary In nature, where as here, it was expressly stipulated that the ‘... letter was only Intended to induce conformity to acceptable conduct, and was not to be regarded as part of a record being built-up against the grfevor, we do not think that the letter of January 21, may properly be characterized as being a dlscipllnary notation. In that regard we would refer the parties to the distinction, often cited in the private sector, which was drawn by one arbitration in these terns: "At the hearing in thJe mtter, come2 fo’ar the company took the uoeitia that the cmd merely doawnented a discuesion vith the griever, that it I&Z8 intended to dmu the grievor '8 attention to the confpmg '8 conc8rn ouer hi8 job perfornwze and thereby provide him vith incentive to *rove that perfonmnce, md that the card m8 not dmwn up for the purpose of TmiZding a record” against the g7ievor. To the extent that any '~ng" ir, disciptinmy, of course, the sanction inflicted upon tFa t?nIpibyee 80 disciptined <8 not %nediate, but pote?tticZ. The employee concerned OiZZ have in mind that if u diacipZi?zcry wm?ring i.8 Mt Sk& t)le Subject Of 0 8UCCeSSfUt grievance, the wrning y222 go to "b&Zd a record” that may be used against him at a Zcter time shodd he sub8equentZy be &:smissed or suspended or wzjezted to some other form of dk?ipZi?&?. A wlm?ing ccx fairZy be characterized a8 a di8cip%ary ming, that ts to say, when it my have ca prejudicial effect upon the emptoyeea' position in future grievance proceedings to catest a dismi88aZ or 8wpen8ion or other diacipZinaq action. h the other hand, conpmy persoznet records might weZZ incZude Q memo& of some sort containing un.%,zttering remrks &out FT. empkyee, but &ich could wt be vie-.ed as 2 dCscip2ir~ ucm?im in ;he serve cf Zaytng the ksis fcr, or stCppcr’fir<;, ether discipttnc-j meas-we8 zf c 2ater &te - eitkcr hcmse of t;ts nc+xx 0.7’ tire .:*ocrent, 3 3ecmse . the ‘ixrning” w& not brought to the attention of the empzoyee in such a way aa to afford him the oppormity of chaZZenging ‘it through the grievance procedure, or because it is cZear for some -other reason that the enrpzoyee wacZd not be prejudiced in any future proceedings by hzvkg faited to grieve the "waning'r imnediateZy foZtan’ng its issuame.. . . Gn the tisic issue, however - that is, whether or not the card of Januaq 7, 1972, can be taken to comtitrcte a discipZi?my measure - we are not confined to the face of the docwnent. As suggested above, in our vim the witid feCi%De distingui8hir.g a wornring which can property be +nucterized as discipiirzq wrn other (non- wyievabZel expression8 of empZoyer di8cpprovtiZ 28 that in the case of the former an employee who fai2.s to br+ng a ‘grievmzce mCy be prejudiced in future proceedings of a discipli- nature. In the case at hand, as we understand zt, the compmty ha.9 cleanly taken the position tfiat the card of January 7, 1972, ms not intended to be discipZinaq in this sense of t&CbZCshiizg a basis for further action. By 80 charactex&ing the card, and unequivocaZZy representing it as a non-disciplinary commoticction, tie eve of the ( opinion that the compcmy wouZd be estopped from 8ubsequentZy tendering it in any future proceeding8 of a d+ipZirxzry nature that might be taken against the griever”. Re KimberZu-CZurk of Cunudu Ltd. (supra). Accordingly and having.determined that Mr. Cloutier's grievance does not raise a dispute with regard to the interpretation, application, administration or alleged contravention of the agreement and does not, for the reasons given, fall within the parameters of s.17(21 of The Crown Employees Collective Bar$aining Act, we mustconclude that we are without jurisdiction to entertain the merits of his complaint. In the result, and for those reasons, this grievance is dismissed for want of jurisdiction. ‘. L . , .,* . Dated at Toronto this Zlst day of December 1976 b M Beatty Chairman I wncur . Gnffln ~Member I concur