Loading...
HomeMy WebLinkAbout1981-0300.Duck.83-06-28IN THE MATTER OF AN 'ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD Between: Before: For the Grievor: , For the Employer: Hearing : OPSEU (Mr. Arthur Duck) Grievor - and - The Crown in Right of Ontario (Ministry of Revenue) ?' Employer M. R. Gorsky Vice Chairman R. Russell 'Member A. G. Stapleton. Member J. Miko Grievance Officer Ontario Public Service Employees Union I. Freedman Legal, Director, Grievance Section Ontario Public Service Employees Union E. C. Farragher Director Personnel Services Branch ' Ministry of Revenue June 9, 1983 DECISION The parties informed the Board that, by agreement, they wished the hearing to be with respect to G.S.B. 14/81, which related to the Grievor's suspension for a period of 10 days on April 24, 1981, and not the grievance concerning the Griever's dismissal, the latter grievance to be heard on Thursday, 16 June 1983. The Grievor, although notified of this hearing was no~t present and the hearing proceeded in his absence. The following agreed statementof facts was filed by the parties .(Exhibit 3): "STATEMENT OF FACTS FOR SUSPENSION GRIEVANCE GSB # 574/81--Mr. A. Duck 1. 2. 3. 4. 5 .' 6. 7. Written Instructions were sent'to Mr. Duck that he was to commence "sales validation" on April 13, 19'81. (Memo dated April.91 1981, attached ads Appendix 11.. This assign- :ment was a proper instruction.in. accordance with his position specification. An Instructional Meeting washeld with all~'Assesisors on April 13, 1981 which .delayed. the assignment. Amendment to April 9, 1981 memo on instructions. New commencement date of April 15, 1981 per attached memo Appendix 2. Morning of April 15, 1981, Mr. Skinner called Mr. ~Duck into his office to inquire into reasons for Mr. Duck's presence in the office (9:30 a.m.). As a result of Mr. Duck's failure to commence his as- signed duties that morning as instructed by Mr. Skinner, a further meeting was convened by management (10:OOa.m.). In attendance at thismeeting were Mr. Skinner, Mr, Thompson, Mr. Duck and Mr. Bayley. The purpose of the meeting was to determine.,why Mr. Duck was not carrying out his assignment. To which the response from Mr. Duck was that he wanted "an equal job . _ opportunity and equality or pay". *renumbered to A300/31 (574/81 is dismissal grievance) $.’ 9. 10. 11. 12. We are satisfied .that the order given the Grievor to commence -3- During the half hour meeting Mr. Duck was given ample opportunity to comply with the instructions. / As a result of this meeting, approximately 15 mins. later, Mr. Duck was provided with the letter dated April 15, 1981 (see attached Appendix 3). Mr. Duck on receipt of the letter failed to notify Management of his willingness to perform his assigned duties and he left, work shortly thereafter. The following morning of April 16, '1981, Mr. Duck sub- mitted a memo to Mr. Thompson (copy attached ~Appendix 4). On Apri1~24, 1981,.Mr. Russell, Deputy Minister, wrote a letter to Mr. Duck suspending him for a period of ten days (Appendix S)." "sales .validation" on April 13, 1981 tias understood by the Grievor, was-a proper order, which he had no legitmate reasoh for disobeying. The new commencement date represented a proper continuation of the order and the Grievor's refusal to follow the proper instruction of a superior amounted to disobedience. The Grievorts reasons for refusing the order were unsatisfactory and he was, in the circumstances, required to carry them.out on pain of having discipline imposed on him. In the absence of any other mitigating factor, the imposition of a 10 day suspension was justified. The fact that the Grievor had been subjected to a previous reprimands for insubordination dn April 15, 1979, and to a disciplinary suspension for insub- ordination on February 17, 1981, which was.reduced by this Board to a 3 l/.2 day suspension, indicates that the Employer was endeavoring to impress upon the Grievor, by the exercise of progressive discipline, that his proper course, should he feel himself aggrieved was to pursue his classification grievance and continue to carry out his assigned duties. In the - -4- .~ circumstances the imposition of a 10 day suspension was within acceptable bounds, given the continuing refusal of the Grievor to cease his tactic of refusing proper orders from his superiors, notwithstanding the reduction of the previou's suspension. On first examination, we were uncertain as to whether Exhibit 7 affected the Employee's position. That Exhibit is. as follows: 11nr. A. A. Duck I50 Domay West Don Hills, Ontario H3C 2Cl April 15, 1981 Dear Sir: This letter vill confiniour discussion this morning in the presence of your Manager, Hr. Skinner ani your Union Representatfve, Hr. Bayley at vhich time you were told that refusaLto carry out the duties asslgrred to you by yo,ur Msnager will coosGtitute losub- ordination and that If you persist you till'be suspended immediatkly pending direction from the lkputy Minister on appropriate disciplinary action. j If ok receipt of.tbis letter'qr thereafter you are prepared to return to vork and terry out dudes assigned by your Manager, please advise me.and returo immediately to your aasigoed~duties. Yours respectfully.~ A. Footest Thompson. N.I.H.A. xkgi00d Assemmit Commissioner Receipt of this letter is acknowledged: Arthur Duck It was'suggested, on behalf of the Grievor, that as he complied with the provisions of the second paragraph of Exhibit 7, he should not have been subject to any discipline. Exhibit 7 must be interpreted in light of the circumstances existing at the time it was delivered to the Griever. Exhibit 7 was handed to the Grievor with a view to causing him to reconsider his refusal to carry out the duties assigned to him by his Yanager. It ought to have been clear to the Grievor that if he persisted in refusing to ~carry,out his Manager's instructions he would be suspended immediately and subject himself to disciplinary action. That is the clear indication conveyed by the first paragraph of Exhibit 7. The evidence discloses that upon receipt of Exhibit I, the Grievor did not carry, out his Manager's instructions but, instead, left work, and set the stage for the imposition of discipline. In context, the second paragraph cannot be taken to offer the Grievor yet another chance to avoid the imposition of ,discipline. If the Grievor was, on receipt of the letter,agreeable to performing the assignment refused by him,up to that point; he would not haves persisted in his insubordination as noted in paragraph one, and thereby, he would'have ,avoided being penalized. Upon his persisting in his disobedience,he was not promised absolution on, a return to work and the performance of his assigned duties, but was being admonished that his return to wprk, in any event, would be on terms: that he carry out assigned tasks at that time. : -6- In the circumstances, and for the above reasons, the grievance is denied. DATED AT London, Ontario this 28th day of June, 1983. **&* M. R. Gorsky Vice Chairman "I dissent" (see attached) R. Russell Member / A. G. Stapleton Member 7: 2000 7: 3000 7: 3542 7: 3600 -- DISSENT Arbitration: OPSEU (Mr'. Arthur Duck) and Ministry of Revenue I ,regret that I cannot agree to the award as proposed by the Chairman in this matter. My reasoning is based on the interpretation of Mr. Thompson's letter to Mr. Duck of April 15, 1981 (Exhibit 71, and also to Mr. Duck's reply to Mr. Thompson in his letter of April 16, '1981~ (Exhibit 8). Regrettably, Mr. Thompson's letter is not clear. Then key section of the first part of Mr. Thompson's letter reads as follows: II . ..you were told that refusal to carry out the duties assigned to you by~your Manager will constitute in- subordination and that if you persist you will be sus- pended immediately pending direction from the Deputy ,Minister on appropriate disciplinary action." It is to be noted that Mr. Thompson says "if you persist" (my emphasis). If the first paragraph of Mr. Thompson's letter was snot as clear as it might have been, my view is that the second paragraph was quite distinct. It treads as follows: "If on receipt of: this letter or thereafter you are prepared to return to work and carry out duties.as- signed by your Manager, p lease advise me and return ,immediately to your assigned duties." Mr. Duck did what the letter called for. He replied in writing the next day, ~April 16, 1981, accepting the offer made by Mr; Thompson. Mr. Duck's reply reads: "Have decided to accept your kind offer in your letter to me dated 15 April 81, and return to work with effect from 08.30 hours today. A. Duck" It is my view that managements cannot now say that what we meant was that Mr. Duck was going to get a suspension re- gardless of when he came back and that if he didn't come back within a fixed'period he was discharged. Management may have'had every right to come to that conclusion, BUT it is not what Mr. Thompson's letter says. Mr. Duck responded promptly to~Mr. Thompson's reque,st that he "return immediately" and, in my view, should not be penalized for doing that which he was told to do. -2- In matters as serious as this, there is an onus on management to make their instructions unmistakeably clear and not'open to interpretation. I do not consider that a ten- day suspension is appropriate in the circumstances. At most, one day's loss of wages for the day he didn't work was in order. K ,Rllcu, R. Russell, Member /ch