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HomeMy WebLinkAbout1981-0211.Pastor.81-09-15IN THE MATTER OF AN ARBITRATION Under The CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD Before: Between: Mr. C. pastor Griever - And - The Crown in Right of Ontario (Ministry of Transportation & Communications) Employer Prof. J.R.S. Prichard Vice Chairman Ms. Ii. J. Laing Member Ms. S. D. Kaufman Member For the Griever: Mr. S. Grant, Counsel C!.3llieKOn, Brewin & Scott For the Employer: Mr. N. H. lettifcr - Staff Relations Supervisor Ministry of Transportation & COmmUniCatiOns Hearing: August 18, 1981 - 2 - In this case, Mr. Charles Pastor alleges that a five-day suspension imposed~ on him was unfair and unjust. The griever is employed as a Vehicle Inspector II in.the Northwestern Region of the Ministry of Transportation and Communications. The griever was disciplined as a result of three incidents which occurred in the fall of 1980. These incidents were set out'a~s the employer understood them in a memorandum to the griever from Mr. Whitney, the Regional Director, dated November 21st, 1980. Since both the evidence in this case and this award are structured around the allegations contained in that letter, we have reptioduced a substantial extract from it.' I have carefully reviewed the circumstances and ,the facts which have been documented. I am s~atisfied,that you did the following which was a contravention of Ministry tiegulations: / I! That on September 5, 1980, you falsified an investigation report regarding a public complaint registered by Cathy Visseau. 2) That on .October 21, -1980, you reported to work unprepared to perform your duties, as you did not have in your possession the assigned tools and gauges required to per- form your duties, and that subsequently on the same day, you refused- to execute promptly an order by your Supervison to proceed to obtain the aforementioned files, tools and gauges. - 3 - 31 That on October 17, 1990, the records for your assigned vehicle were found to be neglected. This was indicated by the Daily Inspection Record which had not been fiZZed in since August 8, 1980, and further, Equip- ment Cost Reports, together ,with gas purchase receipts had not been forwarded to Regional Financial,Services since August 15, 1980. In order to impress upon you then serious’ness with’which actions are viewed, it has been ' decided to impose a penalty. You. will be removed from employment for cause for a period of five days. The dates will be communicated to you by your supervisor D. Harrington. You are hereby warned that further unsatis- factory performance on your part may lead to more serious disciplinary action, not excluding the possibility of dismissal from employment for cause. A copy of this will be placed on your personal file. It is clear from this letter that the employer relied on three separate incidents as together providing the justification for the five-day suspension. Below we have summarized the evidence we heard with respect to each of these incidents and drawn conclusions about the appropriateness of discipline in each case. Finally, the award concludes' with an assessment of the appropriate overall disciplinary response. INCIDENT 1 The first incident relates to's COnplaint about a used csr by s MS. Cathy Visseau. MS. Visseau brought a complaint to the office on September 5, 1980 and was dealt with by the <; .+ - 4 - griever . At this time, the griever's supervisor, Mr. Harrinqton, was away. Ms. Visseau complained that a used car she had purchased had certain defects and sought the assistance of the Minist+y in dealing with her problem. The griever spoke with Ms. Visseau, examined the car, drove it.in the Ministry pa=ki*q lot to test the brakes and had a discussion witi her about the problem. He then sent her to Gibson Motors where she had made an appointment to have her 'car checked and then followed her to Gibson Motors half an hour later. When the griever arrived at Gibson Motors, he determined that Ms. Visseau's car was not there. He further ascertained that while Ms. Visseau had spoken to an employee at Gibson Motors, she had not actually gone there and she had made no arrangement for her car to be checked. :~j None! of thi,s appears to be in dispute before us. The employer's 'concern arises from the report which the qrievor prepared with respect to this complaint. Vehicle Inspectors are required to complete Investigation Reports in response to complaints which they handle. The griever did not prepare a report on September 5, 1980. He explained that since he did ! not do a complete inspection of the complainant's automobile, he did not think the incident was one which warranted a report. Mr. Harrington, the qrievor's supervisor, took a different view of the matter and insisted that a report should have been prepared at the time. When Mr. Harrington returned to the office following September 5, he inquired of the griever as to his activities on September 5 and asked the griever to complete a report. The griever did so on September 12. k, - 5 - MT. Harrington remained suspicious of the griever's activi- ties and investigated further. Duri,ng this investigation, he found out that the griever's report was not entirely accurate. The inaccuracy arose when the griever claimed in his report that he "met her (Ms. Visseau) at Gibson Motors". In all other respects, the report was accurate. As the griever acknowledged in his testimony, he did not in fact meet the complainant at Gibson Motors since she failed to show up.at Gibson Motors at the appointed time. The griever was unable to offer any explanation for this error. He described it simply as a mistake. He testi- fied and we believed him that he had no intention to mislead anyone or to defraud anybody by the statement in his report. There was no possible personal gain for the griever in making the statement. Further, there was no evidence of any im- propriety of any kind associated with the griever's conduct in investigating the complaint. The employer's concern with respect to this matter would appear to be not that the griever intentionally included an inaccurate statement in his report, but rather that such report must be completely accurate. at all times since they are often relied upon as the basis of testimony in prosecutions arising from inspections. This concern on the part of the Ministry is no doubt well founded. It does not answer, however, wh~ether or not any disciplinary response was called for with respect to the griever's error in this case. As we stated, ‘; C’ -. - 6 - there was no intention to falsify, there;was no advantage reaped by the griever, and this was not part of a general pattern of such errors on the part of the griever. Rather it was single isolated incident and resulting in no prejudice in fact to the employer's interest. The explanation for the error may lie in the fact that the griever did not prepare the report until a week after he had done the investigation. However, it was not the lateness in completing the report that was the stated concern of the employer but rather the accuracy of the report. Believing, as we do, that the error was an isolated one and was unassociated with.any mala fides on the part of the griever, we are unable to conclude that any disciplinary response was called for on the basis of this incident. While carelessness in one:s work can attract discipline, the employer cannot insist on perf'ection in the performance of duties. That is, in the case of an employee such as the griever who has 12 years of unblemished, competent work with the Ministry, a single error of a minor nature cannot give rise to a disciplinary response. It is, of course, appropriate to draw the error to the employee's attention and to state the consequence of repeated errors, but no disciplinary action is appropriate in such circumstances. INCIDENT 2 The second incident in chronological order occurred on October 17, 1980. On this day, the griever had left - 7 - work at noon and his supervisor, Mr. Harrington was using the car normally assigned to the griev,or during the after- noon. At that time, he noted that the griever's Daily Inspection Record and the griever's Equipment Cost Reports were not up to date. The Daily Inspection Record is a book kept in each vehicle which must be filled in on a daily basis by the driver of the vehicle. In it the driver must record the starting mileage for the day and any prob- lens with the vehicle. Each driver isrequired to maintain such a diary and to keep it up ta date da.ily. The griever had not entered the mileage in his diary since August 5, a period of over two months. The Equipment Cost Report is a 'report which must be filed once every two weeks recording the amount of gasoline purchased and any other repairs effected on the vehicle. These reports are submitted to a central accounting office in order to maintain cost controls on the vehicles. The griever had not submitted an Equipment Cost Report since August 15 and was thus approximately five reports behind at the time that Mr. Harrington discovered the problem. The Equipment Cost Report is based on ,reCeipts kept by each driver. The griever had maintained the receipts, but had not filled out the required reports or submitted them to the Ministry. When this problem was drawn to the griever's atten- tion, he was able to complete the Daily Inspection Reports and the Equipment Cost Reports immediately. He had kept a record ofi his daily'starting mileage in a notebook and he had maint;ained all necessary receipts for the Equipment I Cost Reports. / Th'e griever had no real explanation for his failure I to keep {is reports up to date, and did not try to excuse his miscdnduct. I. He acknowledged that he was wrong. He did explain that he-generally assigned a relatively low I priority Ito such reports. He reasoned that since he was i able to m,alntain all the required information,. there was I no need f,or undue concern about the actual preparation of I the forma31 reports. Wh,ile the grievor',s explanation is coherent, it , does not offer a justification for his.conduct. While the grievor'sl misconduct did not cause any permanent harm to the Ministry's interests, it clearly was a breach of his obligations. The need for the griever to pay attention to / the timely submission of reports and forms had been drawn to his atten/tion on two previous occasions. While he has I consistenfly recei<ed very st :r I griever did receive notificat i I January S!, 1979 and his March 1 I should endeavour to improve h .i ong employee appraisals, the on as part of both his 7.6, 1980 appraisals that he s performance with respect to deadlines and submissions of reports. Thus we have a I situationjin which the employee had previously been urged I to give gFe.ater attention to these matters and had still allowed htmself to get behind on submission of reports. At the same Lime we must stress that there was no evidence that the grievtr had previously been disciplined or warned for his / shortcomings in this regard. j . - 9 - In assessing this incident, we have concluded that a disciplinary response was called for by the employer. However, we do not think a suspension was appropriate or .required. In our view, the circumstances would support only the issuance of a letter of reprimand or warning dealing with the matter of the timely submission of reports. If the griever were to repeat misconduct of this kind, only then would it be appropriate to contemplate the imposition of a suspension to further indicate to the griever the need for rehabilitation with respect to this aspect of his job performance. It must be remembered that the grievor'has worked 12 years with the Ministry and has earned a first class record. We are confident that a warning will be sufficient penalty to rectify the situation at this time. INCIDENT 3 The third incident occurred on October 21st, 1980. On this morning, the griever reported to work.and found that his supervisor, Mr. Harrington, was waiting to see him At this time, Mr. Harrington raised the matter of the discovery he had made on October 17 of the incomplete re- ports. This was the first time the griever had been to work since October 17 and this was Mr. Harrington's first appointment to raise the matter. After discussing the re- ports, Mr. Harrington indicated he intended to do an equip- ment audit of the griever's car. During this audit, Mr. Harrington determined that the griever did not have his tools and gauges in his car and that he had also failed to keep the confidential Ministry files with him. The griever explained - 10 - that the tools and the files were at his home which was a five-minute drive from the Ministry's garage. The griever offered to return home to get the tools and files, explain- ing that he had simply forgotten them that morning. He had taken them home on the morning of October 17. He was con- cerned that he should keep the files with him in case some- one else was assigned to his car during his absence and he took the tools home with the intention of separating his own tools from those of the Ministry. There is no Ministry directive announced or policy prohibiting employees from taking home either the files or tools although there is a requirement that the tools not be used for personal purposes. There is no suggestions that they were so used in this situation. The Ministry's primary concern is that the tools and files be secure at all times. The evidence is thattheywere secure although they were at the employee's house rather than with him et work. This is, of course, undesirable since et any time an employee such as the griever may be required to respond to an emergency which would necessitate his having his tools and files available immediately. Mr. Harrington did not accept the griever's offer to go home tb retrieve the tools and files but rather insistEd that the griever accompany him while they went together to the griever's home. The griever objected to Mr. Harrington's invading the privacy of his home but Mr. Herrington insisted that all he intended to do was wait outside the house in the car while the griever went in. The griever was still not -* -. - 11 - prep%red to allow Mr. Harrington to accompany him even on these terms. He explained that at this stage, he and Mr. Harrington were engaged in heated shouting match and that he was not prepared to "transfer the circus to his front lawn". He explained that he was concerned about the effect this might have on his wife who was sick at home and about the impression it might make on his neighbours. As a result, the griever refused to accompany Mr. Harrington. Having conoluded that a stalemate existed between them, Mr. Harrington went off to work elsewhere and when he returned a short time later to complete his equipment audit, the griever's equipment and files were complete and in the car. In the meantime, the griever had gone home and. retrieved the tools and files. There were three possible matters of concern about the griever's behaviour in this incident. First, it appeared at one point that the Ministry was concerned about the mere fact that the griever had the tools and files at home. HOW- ever, it became clear at the hearing that there is no prohibition in this regard so long as there is no Maya fides or personal use associated with it. In the result, there was no cause for any discipline on this account. Second, there was a concern that the griever along with all other inspectors must have their equipment and files with them at all timss in order to respond in a timely fashion to emergencies and new assignments. It is clearly not accept- -. - 12 - able for an ~inspector to have to go home each time he is assigned to a task requiring either his tools or his files. The griepor did not disagree with this as a general proposi- tion. However, he explained that this was the first time in 12 years that he had forgotten his tools and files and had simply forgotten to bring them in after his long we?k- end away from work. We believe his explanation. Again, as with the first incident, while carelessness may lead to discipline if it forms part of a pattern of misconduct, a single isolated incident of this nature does not call for a disciplinary response particularly when no harm comes of the error. The third basis of concern of the Ministry with respect to the griever's conduct in this incident was his refusal to obey hislsupervisor's instruction that he accom- pany his supervisor in going to his own home to retrieve the tools and files. The employer characterizes his behaviour as insubordination in the sense that it represents a refusal by the griever to obey an order from a superior. It is important to emphasize the limited nature of the employee's refusal. He did not refuse to return home nor did he refuse to retrieve his tools immediately. To this extent, the employer's letter setting out the grounds for discipline is inaccurate. He simply refused to allow his supervisor to accompany him to his home. It is not clear what interest the supervisor had in accompanying the griever to his home. He offered none at the hearing other than he - 13 - desire to ensure that the tools were secure. However, if the concern was to ensure the security of the tools and files, the griever's offer to retrieve them immediately would appear to have been a full response. We are persuaded that, in this case, the griever's refusal to permit his supervisor to accompany him to his own home should be excused. The supervisor's request was one that ran a substantial risk of invading the griever's private life and a lesser risk of causing him substantial embarrassment among his neiqhbours. At the same time, it does not appear that there was any compelling employer interest which would necessitate this encroachment on the griever's private life. Furthermore, if the mcroachment had occurred and if a scene had developed at the griever's home, it is difficult to see how any genuine compensation could have been provided through the.grievance procedure. As a result, in these exceptional circumstances, we are persuaded that it would be inappropriate to impose any penalty for the griever's failure to follow his supervisor's instructions. CONCLUSION In conclusion, it can be seen therefore that we have concluded that no disciplinary response was called for with respect to either the first or third incidents for the reasons given above. However, at the-same time, we have concluded that a disciplinary response was appropriate with - 14 - respect to the second incident. However, in this regard, we have concluded that the appropriate disciplinary response would have been a letter of warning or reprimand. While we have concluded that no discipline was called for as a result of the first and third incidents, we might comment that it was in part the griever's inadequate report- ing which triggered the suspicion on the part of his super- visor which led to this entire matter. Thus, while only the second incident would have supported a letter of reprimand dealing with the griever's need to complete reports in a timely fashion, his attention to this matter more generally would appear td us to be likely to reduce the like- lihood of further disputes of the kind before us. It is, essential that an atmosphere of mutual trust be developed between the griever and his supervisor and there is no doubt that the supervisor's confidence in this regard is in part dependent upon the griever's maintaining of timely and complete reports. These reports are required both as a matter of Ministry policy and as a result of the supervisor's particular instructions and they must be respected. In the result, the grievance is allowed in part. The five-day suspension shall be removed from the griever's record and he shall receive full compensation for the period of time that he was off at work. If there is any dispute with respect to the amount of compensation owing, we will remain seized in order to settle the matter. However, we have found that the griever's conduct with respect to the ?-- -i - 15 - second incident was conduct which warranted a disciplinary response in the form of a letter of reprimand. This award shall 'serve the purposes of that letter. As a result, the griever must realize that .further- misconduct-of a similar kind would be likely to attract a more substantial penalty. DATED at Toronto this 15th day of September, 1981. Prof. J.R.S. Prichard Vice Chairman Ms. H. J. Laing Member /lb .I