Loading...
HomeMy WebLinkAbout1979-0225.Menezes.80-07-10.IN THE MATTER OF AN ARBITRATION Under The CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARDS Between: Miss Teresa I. Menezes And The.Ministry of Government Services Before:. ~ Professor J. Robert S. Prichard - Vice-Chairman Mr. E. R. O'Kelly - .Member Mr. H. E. Weisbach '- Member '- For the Grievor: Mr. G. Richards, Grievance/Classification Officer Ontario Public Service Employees Union For the Employer: Mr. R. Shepherd, Assistant Director, Personnel Branch Ministry of Government Services Hearing: May 8th, 1980 Suite 2100, 180 Dundas St. West Toronto, Ontario In thiscase, the grievor, Ms. Teresa Menezes, grieves a two week suspension she received for insubordination. At the time of her suspension, the grievor was a Secretary 3 in the Ministry of Government Services. The grievor was initially discharged as a result of her con- duct in August, 1979. However, as a result of discussions on the grievance process, the penalty of discharge was reduced to a two week suspension. The grievor's position is that there was no cause for discipline at all, and that in the alternative the two week suspension was too severe a penalty in the circumstances. The incident which led to the imposition of discipline on the grievor arose from the introduction of "Project Paper Recycling". Pursuant to that project, each employee was given a small receptacle to keep on.his or her desk in which would be placed certain kinds of scrap paper suitable for recycling. These receptacles were then to be emptied periodically into large bins which were located in appro- priate positions throughout the office building where the grievor worked. Shortly after Project Paper Recycling was introduced, Mr. Peter Ferreira, the grievor's supervisor, told that grievor that her office duties now included emptying the desk receptacles daily for the four or five people she acted as secretary for. The grievor objected to these instructions and refused to follow them. Following consultation with his superior, Mr. Grimes, and with the Director of Personnel, Mr. Cook, Mr. Ferreira~reduced his instructions to writing, sending a - 3 - memorandum to the grievor. It read: I would like to confirm my verbal instructions to you concerning Project Paper Recycling. Your office duties will, from this day onward, include the transfer daily of material for recycling from the desk receptacles to a central collection bin, for the following branch staff: Systems Co-ordinator, Assistant Systems Co-ordinator, Program Analyst, Program Analyst Co-ordinator and yourself. You should be aware that failure to comply with these 'instructions may result in disciplinary action. Mr.- Ferreira estimated that 'these additional duties would take no more than five minutes per day and that the grievor had sufficient time to do the job. While he agreed that each member of the branch could empty his or her own receptacle with little inconvenience, Mr. Ferreira testified that he wished to give the grievor prime responsibility for this task to ensure "the good order of the branch". Following the grievor's receipt of Mr. Ferreira's memorandum, a meeting was held with the grievor and a union representative in Mr. Grimes' office. At that meeting, management took the position that the instructions fell within management's perogatives, ihat the task did not amount to personal services and that the issue at stake was the grievor's refusal to follow a supervisor's instructions. The following day, the grievor sent a written reply to Mr. Ferreira which read as fo llows: August 16, 1979 MEMORANDUM TO: P. D. Ferreira RE: OFFICE DUTIES Re your memo to me of August 14, 1979. I would like to recqnfirm my verbal statement to you "THERE IS NO WAY I AM CLEARING ANYBODYS GARBAGE" - 4 - This was also confirmed by Jim Glenny, President, Local 508 OPSEU, in the hour and a half long meeting between Jim Glenny, Ray Shepherd, Jim Grimes and yourself yesterday. You will also note Jim Glenny's very strong objection to the last paragraph of your memo to me. T. I. Menezes CC: Mr. J. W. Filby Director Management Planning Branch Dear Mr. Filby: The acting(s) in your absence merit mention kt the next Psychiatrists Convention. In this memorandum, the grievor clearly reiterated her refu- sal to follow Mr. Ferreira's instructions. In addition, her gratuitous comments to Mr. Filby in the post-script regarding the relevance of psychiatrists was quite clearly an insult directed at management. Following the grievor's memorandum, another meeting was arranged in Mr. Grimes' office. Mr. Grimes explained to the grievor the seriousness of her letter and of her refusal to follow instructions. He suggested to her that she might wish to withdraw her comments, to apologize for the remarks she had made and to provide an unconditional agreement to follow the instructions. Mr. Grimes told the grievor to think about the matter on the weekend and to give him a response on Monday. On Monday morning, the grievor gave her response in writing in a memorandum to Mr. Grimes which read as follows: - 5 - I am willing to accept Peter's instructions in his men'0 dated August 14, 1979, UNDER PROTEST. However due to medical advice I am to refrain from the exercise until I have had an opportunity to meet with the Deputy Minister at his convenience. I would like to apologize for remarks made to Mr. 3. W. Filby in my memo dated August 16, as they were made under psychological stress. Thus the grievor provided the required apology, but not the unconditional agreement to follow instructions. At that time the grievor supplied no documentary support for the medical advice which formed the basis of her continued refusal to follow the instructions. After receiving this memorandum Mr. Grimes arranged to see the Deputy Minister and after discussions involving the Deputy Minister, the Director of Personnel and Mr. Grimes, a decision was taken to discharge the grievor. The discharge was communicated to the grievor by a letter which also stressed that the grievor's error was in failing to follow her supervisor's instructions. It read as follows: I have reviewed all recent correspondence concerning your current refusal to carry out the legitimate instructions of your'supervisor and previous instances of insubordination, which culminated in Mr. Filby's letter to you of September 27, 1979. AS a result of your refusal to carry out these assigned duties, together with the insubordinate comments included in the letter copies by you to Mr. Filby, I am dismissing you from the Ministry. This dismissal is with immediate effect and therefore from August 20, 1979, you will cease to be an employee of the Ministry of Government Services. I am not prepared to meet with you .ss requested by you., It is the duty of every employee to carry out the legiti- mate instructions of the supervisor and to seek redress for any grievance they may have through the formal grievance process. I do not consider your letter of August 20, 1979 to Mr. Grimes to be a retraction of your previous poSitiOn because of the qualifications contained therein. - 6 - You are entitled to grieve this dismissal in accordance with the formal grievance procedure should you so desire. Yours truly, J. C. Thatch& Deputy Minister As was stated above, the penalty of discharge was subsequently reduced to a two week suspension as a result of discussions during the grievance process. III - What would otherwise be a reasonably straightforward case of insubordination is complicated by the grievor's assertion of "medical advice" as the basis for her refusal to provide the necessary unconditional agreement to follow instructions. At first blush, the medical advice appears peculiar in that the grievor stated that she was "to refrain from the exercise until [she had1 had an opportunity to meet with the Deputy Minister". However, the circumstances under which the grievor got the advice in part explain its content. The grievor testified that after the meeting in Mr. Grimes' office on the Friday afternoon she was very upset as she saw her job was in jeopardy. She felt she should see a doctor to discuss the problem but lacking a family doctor she simply went to the cafeteria at St. Joseph's Hospital on Saturday. On separate occasions she introduced herself to two different doctors and sought their counsel. Each doctor agreed to talk to her but each declined to enter a formal doctor/patient relationship in the circumstances. As a result, the grievor was unable to provide even the names of the doctors. The substance of her conversations with the doctors appears to have been that they recognized that she was upset and that they agreed with her that she should see the Deputy Minister about the matter. This is hardly surprising; there is no doubt that she was _, upset and they were unlikely in the circumstances to disagree with her desire to see the Deputy Minister. Indeed, it is entirely believable that the grievor persuaded herself and the doctors that she would feel better if she had a chance to discuss her problem with the Deputy Minister. What is not clear is whether either of the doctors instructed her on medical grounds not to comply with the instructions prior to meeting with the Deputy Minister. On balance, and after considering all of the evidence, we do not believe the grievor got any such advice. Rather, we find that she received a sympathetic ear from the doctors and that they did not disagree with her analysis of how she should proceed in hand7ing - the situation. To the extent she received advice, it was tactical advice, not a medical opinion. The mere fact that it came from a doctor does not alter this characterization. 'In the result, we do not find that the grievor's conditional agreement in her memorandum of August 20 was based on medical advice of a kind which would excuse a failure to comply with the instructions. We should add that if the grievor had produced evidence that she had received a clear medical opinion from a doctor/patient relationship that her health would have been threatened by complying with the instructions, our decision would have been different. At the same time, however, we are confident that the Ministry's decision would also have been different. . .i - 8 - In sum, we are faced with a case of an employee who refused to follow a supervisor's instructions. She persisted in the refusal even after the instructions were reduced to writing. She further persisted when given the opportunity to change her mind. She aggravated the situation with a gratuitous insult to her supervisors. And finally, she refused to provide the required unconditional agreement to follow instructions even when offered a weekend to reconsider her position. The totality of her conduct' clearly amounted to insubordinate and unacceptable conduct which called for a disciplinary response by the Ministry. Before considering whether or not a two week suspension was the aPProPriate response. in these circumstances, it is important to clarify what is not at stake in this case. We are not called - upon to rule on the wisdom of Mr. Ferreira's decision to assign responsibility for emptying the desk receptacles to the grievor instead of following what appears to be the more common practice of leaving each individual employee responsible for meeting the require- , ments of Project Paper Recycling. If the grievor wished to challenge these orders, she should have followed the instructions but grieved the matter. Since the grievor chose not to follow the instructions, she has shifted the focus from the instructions to her own insubor- dination. In this light, the only question before us is whether or not Mr. Ferreira was acting within his apparent authority in issuing the instructions. There is no dispute between the parties on this issue and thus we will refrain from offering our views on this subject. - 9 - In light of our conclusion that a disciplinary response was called for in the circumstances, the grievor's previous employment record becomes relevant. She has been employed with the Ministry of Government Services since February, 1977.. In September, 1978 the grievor was disciplined for insubordinate comments directed at Mr. Ferreira on that occasion. The grievor took exception to certain instructions regarding her office duties and in the course of her written reply she told her supervisor: I think it would be mre important for you and Jim Grimes to consider how to fill your under-utilized and overpaid 7% hours rather -than have long meetings about keeping secretaries busy. She was discplined by the Director of Management Planning Branch and advised that "further insubordinate acts... will not be tolerated and if they occur, would result in a recommendation to terminate <her> services". The incident at issue in this case also involves insubordinate ,lf comments. The grievor appears to have difficulty in restraining her-se from adding gratuitous comments of an insulting nature to her written communications with her supervisors when she is engaged in a disagreement. This conduct is, of course, improper and if it is continued the grievor is certain to be faced with an escalated penalty. She must learn to communicate politely even if formally with her supervisors. If unable to do so, she may have to reconsider her position with the Ministry. There are a number of factors, however, which favour some miti- gation of the penalty in this case. The grievor clearly understands - 10 - now her obligation to follow the instructions. Furthermore, she is now aware that if in the future she disagrees with certain instructions, she should disagree not by disobeying but by discuss- ing the matter with her supervisors and if necessary by grieving. Furthermore, the grievor's refusal to follow instructions in this case seems to have been motivated largely by a belief that there was an issue of principle at stake concerning individual respons- ibility for paper recycling.and the appropriate breadth of a secretary's duties. This doesn't excuse the manner of her response but it does distinguish it from situations of simply intemperate insubordination. Finally, although we rejected the grievor's "medical" advice as an excuse for failing to follow instructions, it does indicate how upset the grievor was about the matter which may in part explain her conduct. Having considered all of these circumstances and the grievor's prior record, we find that a one week suspension would be more appropriate than the two week suspension. Therefore, exercising our discretion under the crown Employees Collective Bargaining Act,. we order that a one week suspension be substituted as the appropriate penalty. The grievance is allowed in part. A one week suspension is substituted for the two week suspension and the grievor is entitled to compensation for one week's pay. We will remain seized of this matter to deal with any issue of compensation arising from this award. Richards for We wish to thank both Mr. Shepherd and Mr. their able assistar,ce in this case. Dated at Toronto this 10th day of July, 1980. Professor J. R. S. Prichard Vice-Chairman I concur Mr. E. R. O'Kelly' Member I concur Mr. H. E. Weisbach Member /et