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HomeMy WebLinkAbout1982-0060.Mercer.82- -07Eetween : OPSS:U (Sandra L.H. Uercerj Griever - And - The Crown in Righx of Ontario (Xinistry of Consumer and Cordnercia.1 Relations) Employer Prof. J.Y. Samuels Vice Chairman xr . N. Gandall Xenber blr. G.B. Kalker liember For the Griever: hi?. D. Starkmzn, Counsel Golden-Levinson FOX- The ~!ZlFlOyE!r: Sir. J. J. O'Shea Staff Relations Administrator blinisrry of Consoler and Commercial Relations Hearing: -2- CONTENTS INTRODUCTION . . . . . .,. . . . . . . . . . . . PROCEDURAL MATTERS . . . . . . . . . . . . . . . 1. Concerning the requirement for a pre-disciplinary hearing . . . . . . . 2. Concerning the evidence to be admitted OTHER FACTS ........ > ......... CONCLUSIONS ................... LIST‘OF EXEIBITS ................ Pace . - 3 - INTRODUCTION The griever has been a clerk in the Land Registry Office in Guelph since February 1975, and asks that a five-day suspension be reversed, that she be compensated for the wages lost, and that the suspension be removed from her record. At the outset, several procedural matters were raised by Mr. Starkman on behalf of the grievor. We shall deal with these matters first. PROCEDURXL !nTTERS 1. Concerning the reauirement for a pre-disciplinary hearing The grievor serves the Province under the Public Service Act, R.S.0: 1980, ch. 418. Section 22(2) provides for the possibility of suspension in these terms: "A deputy minister may for cause remove from employment without salary any public servant in his ministry for a period not exceeding one month or such lesser period as the regulations . prescribe." Pursuant to this Act, Regulation 881 provides for a .$r~; procedure to be followed in the meting out of the discipline contemplated in section 22(2). Section 18 of~the Regulation provides: '(4) Where, in the opinion of a deputy minister, there may exist cause forremoval of a public servant from employment or for dismissal Of a public servant from employment, the deputy minister shall appoint a time for and ,hold a hearing.. (5.)'The public servant whose conduct is the .. subject of a hearing pursuant to this section shall be given reasonab~le notice of the hearing by the deputy minister. - 4, - (6) A notice of a hearing shall include, (a) a st~atement of the time, place and purpose of the hearing; (b) reasonable information of any allegations with respect to the conduct of the public servant that may be relevant to the hearing; and (c) a statement ‘that 'if the pub-lc servant does not attend the hearincl'the hearing may be proceeded with in his absence and he will not be entitled to any further notice in the proceedings; (7) The public servant whose conduct is the subject of a hearing may at tne hearing, (a) be represented by an employee representative; (b) call and examine witnesses and present his arguments and submissions; and C(c) conduct cross-examinations of witnesses reasonably required for a full and fair disclosure of the facts-in relations to which they have given evidence. (8) Where a deputy mi.nister delegates to a public servant in his ministry his powers and duties in respect.~of a hearing mentioned in this section, the delegate shall hold the hearing and shall report thereon in writing to the deputy minister. (9) The report of the delegate to the deputy minister shall include the record of the hearing and the recommendation of the delegate together with his reasons therefor. (10) A deputy minister or his delegate who holds a hearing pursuant to.this section shall cornTile a record of the proceedings that shall include, (a) the notice of the hearing; (b) all documentary evidence produced at the hearing; Cc): the transcript, if any, or a statement or summary of the oral evidence given at the hearing: and (d) the text...of any written submissions or arguments presented at the hearing. (11) A witness at a hearing pursuant to this section is entitled to be advised by his counsel or agent as to his rights, but the counsel or agent of a witness is not entitled to be present except when the witness is giving evidence and~may take no other part in the hearing without leave of the deputy minister or his delegate holding the hearing. (12) Where, after holding a hearing and considering the evidence produced orgiven and the submissions or arguments presented at-the hearing or, where the hearing is held by a delegate, after considering the report of~the delegate, a deputy minister is of the opinion that there exists cause for removal ;from employment or for dismissal from employment of a public servant whose conduct was the subject of the hearing, the deputy minister may remove or dismiss the public servant from employmen~t." In short, the Regulation provides for a procedure which permits a hearing before the suspension is imposed. Section 30(3) of the Act provides for the relationship between its provisions and those of a, collective-agreement. "Any provision in a collective agreement that isin conflict with-a provision of a regulation as it affects the employees of a bargaining unit covered by the collect-Lve agreement prevails over the provision of the regulation." Now, Mr. Starkman argues that there is no conflict between the pre-disciplinary hearing provided for in the Act and Regulation, and the grievance procedure in the collective ag:eement. They are mutually exclusive proceedings -- one taking place before the suspension can be imposed, and.one taking place after disci2lin.e. Hence, both~procedures must be compiled with. In this case, there Gas no pre-suspension hearing, therfore the Employer's actions were a nullity and the grievance~must succeed on this ground alone. He argued that,there is good reason for the pre-disciplinary hearing, because the remedy provided for in the grievance grocedure -6- is often inadequate. It is better to have the matter heard before any disci-;rline is imposed, as is contemplated in the Act and Regulation. His argument is very attractive. The problem is that this Board has ruled on the matter in Ferguson, 35/76, and in a lengthy award unanimously held that the two hearing procedures are in conflict and, therefore, the collective agreement grievance procedure prevails. The~Employer does not need to comply with the Regulation. At our hearing, we indicated that it would be a serious matter to overturn such a decision, and we reserved our decision on the point. Having now had an opportunity~ to consider the matter, I have come to the conclusion that it Gould be unwise in this case to reverse the earlier decision. I might add, however, that had this been the .first time this Board head considered the matter, I might have done otherwise. 2. Concerning the evidence to be admitted On October 19, 1981, the grievor received the following letter from the Land Registrar in her office: "I have had discussions with you to-day and in the past and made you aw,are that a number of aspects of your performance and behaviour in this'office are less than satisfactory. I am concerned that you have not responded to these discussions and must therefor~e,, formally advise you of my concerns. Of primary concern is your responsiveness and attitude toward supervisory staff in this office. .primarily the Deputy Land Registrar and myself. YOU are reminded that.instructions .and directions issued by the Deputy Land Registrar must be executed in a timely manner and without undue questioning or complaint. Equally disrupt duties actions as important as the above and. just as ,ive to the effective discharge of your is a frequent posture of insolence. Your and tone of voice are too often sucoesti-;e of disagreement, disrespect or disregard foi supervisory decisions made in this office. It is imperative that you respect the authority of Gork related decisions and direction in this office. -7- I trust that you will make a conscious effort to address the matters noted above, however, should you not do so I will have no alternative but to recommend disciplinary action. If you are unclear about your specific responsibilities, assignments and priorities in this office please feel free to discuss them with me for clarification." On October 30, she replied as follows: "This is in reply to your letter of October 19, 1991. I am formally advisihq you of my concern in regard to .,, your attitude. I understand you have been allowed the mandate to organize the office, but when my, rights as an individual are being infringed u?on then you create a problem. The freedom of thought and speech will continue to be my perogative to be used as it is the right of any individual. Your inability to allow freedom of conscience to exist is by no means an excuse for your continual harrassment of me and your persistent effort to misinterpret my actions as those of an insolent lazy worker, when in fact, this is not the case. If you feel disciplinary action is necessary then by all means do your worst. In this matter I feel quite confident and well assured of my position." Now, the Employers proposed to introduce evidence concerninq a number of incidents leading up to the letter of October 19. .xr Starkman objected to'this evidence. He argued that the record speaks for itself, and that the Employer had dealt with these incidents in the warning letter of October 19. They were now .closed matters. At the hearing, we indicated that we agreed that these earlier incidents could not form>any part of the justification foZ the five-day suspension, because the letter of suspension was -s- clear that the penalty was being imposed for the letter sent by the qrievor on October 30. However, in order to understand the meaning of the letters of October 19 and 30, it was necessary that we have some evidence concerning the past events referred to in the letters. We cannot judge the significance of the qrievor's letter‘unless we know its meaninq. Hence, we permitted Mr. O'Shea to call his evidence concerning the history in order to help us understand the letters. OTHER FACTS The evidence shows .that the Guelph Land Registry Office has been undergoing a reorganization under the supervision ~of Mr . K. McCrea,.who came to the office as Land Registrar in August 1978, and Mrs. J. Fowler, who came as Deputy Land Re~qistrar in July 1979, and.movedto Senior Deputy in July 1981. They have the mandate to improve the productivity of the office. From the outset of their arrival, the local employees h,ave reacted unfavorably. Indeed,.some of the changes were 'not even appreciated by the local bar and other clients. For exam? in some circumstances, the old practice of an employee qoinq immediately to the counter to serve a client has'been ended in le, favor of a divxsion of labor which leaves an employee at her 6~2s:~ working on some matter even if there is a client at the counter . . . waiting to be served. The qrievor's attitude has been one of grudging compliance with orders from MrS. Fowler and Mr. XcCrea. There is no point in retelling the several incidents relatec in; evidence. It suffices that they show clearly that the qrievor -9- will go to some length to make it difficult for her supervisors, but, on the other hand, Mrs. Powler will go to some length to press her point needless,ly. For example, she related an incident when she repeated an order over and over waiting for the grievor to say that she understood. There seemed little point in beiaboring / the matter in this.way. The grievor was sitting at her desk silently making no response whatsoever. In any event, all of this history was dealt with in a disciplinary way in the warning letter of October 19. I might say that some of the ~incidents may have warranted a more seriolis penalty, but they are now over and done with. Then the grievor replied in her letter of October 30. It was addressed personally to Mr. McCrea, and was left for his eyes only on his desk. The letter upset-him greatly. on the weekend, he contacted Mr. B. Gibbs, the then Deputy Director of Real Property.Registration for the Southwest Region. Mr. Gibbs recommended the five-day suspension to the Personnel Services Branch, and Mrs. J. Service, the Director of this Rranch sent the letter of suspension. It reads: -"It has been brought to my attention that you have repeatedly refused to follow your supervisor's instructions and that-your responsiveness and attitude 'towards the instructions were less than satisfactory. I have been informed that vou have been counselled and advised in this regard on many occasions. More recently, you were informed~ by a letter dated'october 19, 1981 from Nr. K. McCrea; the Land Registrar in the office in which you work, vi~z Land Registry Office 561. In-that letter you were informed that a conscious effort to address your supervisor's concerns should be made by you otherwise disciplinary action would be recommended. - 10 - Mr. Gibbs, Deputy Uirector, Real Prooertv Registration has informed me that you have res?onhed so Mr. E?cCrea's letter and both he and Kr. McCrea consider your letter of October 30, 1981 to be insubordinate and inapprop- riate. Accordingly, they have recommended a suspension of 5 days without pay. I concur with that recommendation. Therefore, I am hereby suspending you from duty for a period of five (5) working days in accordance with Section 22(2) Of the Public Service Act. The period of your suspension, without pay, will be from Nove.mber 16 to November 20, 1981 inclusive. You are not to report to work.. In addition, I must advise you that anv failure in the future to comely with instructions fro; your supervisors could result in more serious disciplinary faction:" It is important to note that we did not hear from.Mrs. Service, so we do not know why in fact the discipline was imposed. We know only why it was recommended. The Union called no evidence. CONCLUSIONS Firstly, in my view, it is clear from the letter of suspension that the justification for the discipline is the griever's letter of October 30, which was found to be "ins'ubordinate and ~~~ ~a.... inappropriate.'" Therefore, we,must decide whether this does give just cause for the five-day suspension Secondly, what does the letter of October 30 say? It acknowledges Mr. McCrea's authority to run the office -- "1. understand you have been allowed the mandate to organize the office" -- but it raises some difference of opinion over their relationship beyond the running of the office. It suggests that Mr. McCrea should take disciplinary action if he feels it necessary, but.indicates that.the grievor feels confident she Will be vindi- cated in this event. The tone of the letter 1s one of righteous - 11 - indignation, and refusal to follow the dictates of her superior beyond what is necessary to organize the office. The letter was delivered very privately, and was not intended to hold Mr. i%Crea up to ridicule before his staff. It is clear from the'letter.that there is a serious personality clash between the two. Sut was this letter "insubordinate or inappropriate"? No better definition of insubordination can be given than the summary by E.E. Palmer in Collective Agreement Arbitration in Canada (Toronto: Butterworths, 1978), at page 248: "Quite simply, insubordination might be defined as the flouting of a clear order of a person in authority. In general, then, there are three initial components of a charge of insubordination: (a) there must be a cl,ear order understood by the grievor; (b) that order must be given by a person in. authority: and (c) the order must be disobeyed." To this might be added a general attitude indicating that the employee does not recognize the authority,of the superior and that orders will not be followed. The letter from the griever did none of these things. Indeed, it made clear that the qrievor recognized the authority oft MT. McCrea. An employer cannot~demand that he be liked by an employee. All that he can ask is that the employee perform the work as required. There is nothing in the qrievor's letter which indicates she will not perform the work as required. In conclusion, I find no justification for a five-day suspension in the letter of October 30. Nor do I think there should have been any disciplinary action in response to this Frivate expression of the,grievor's view concerning he: oblication tc - 12 - IbIT . McCrea and her private rights. Tie grievance 1s u?hell acd the ‘Ministry is ordered to remove tie suspension from her recore and to compensate her for the five-days' pay lost. We retain our jurisdiction to decide the matter of 'con- 2ensation if the parties are unable to agree on this themselves. Done at London, Ontario, this '7“ day of-. ;_ , 1982. ..~ J.W. Samuels, Vice-Chairman M. Gandall, Member G.B. TJaJker, Uember - 13 - I LIST OF EX-TI3ITS 1. Grievance Form an2 resgonses. 2. Letter from Mr. McCrea, October 19, 1981 3. Letter from Mrs. Mercer, October 30, 1981 P . . Letter from Mr. Gibbs, November 4, 1981 3. Letter of Suspension 6. Delegation of authority 7. Organization Chart of Guel?h office.