HomeMy WebLinkAbout1982-0313.Blake.82-09-22313/82
IN THE MATTER OF AN ARBITRATION
Under The
CROWN EMPLOYEES COLLECTIVE BARGAINING ACT
Before
-' THE GRIEVANCE SETTLEMENT BOAPxD
/ -
Between:
Before:
Amalgamated Transit Union (Elton Blake!
Grievor
And
The Crown in Right of Ontario
(Toronto Area Transit Operating Authority)
Employer
R. L. Kennedy Vice-Chairman
P. Warrian Membe:
J. Morrow Member
For the Grievor: E. G. Posen, Counsel Sarrister and Solicitor
For the Employer: E. T. McDermott, Counsel
Osler, Hoskin & Harcourt
Hearing: August 12, 1982
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INTERIM AWARD
On March 11, 1982, the employer placed in the Grievor's
personnel file a document entitled "Notice of Counselling Advice".
The Grievor alleges that the document in question constituted
discipline without just cause contrary to the Collective
Agreement and the grievance seeks that the notice be removed
from the personnel file and that a declaration be made that the
notice was delivered without just cause. The document in
questionzead as follows:
NOTICE OF COUNSELLING ADVICE
EMPLOYEE NAME: E. Blake DATE OF ADVISEMENT: March 11, 1982 REASON FOR COUNSELLING: Deteriorating work
performance
SUPERVISOR'S COMMENTS:
'<.
As confirmed by.this man's attendance and incident
of lateness record, he is unreliable. This combined
with his poor work attitude, affects his quantity
of work and dependability. Recently when placed
in the position to work with others, his work
mates personally requested that he be removed as he is a~disruptive,,argumentative and non-productive
individual (witness to employee's complaint to me
about Mr. E. Blake is L. Grech). He has difficulty
to remain at his work station and his inability
to stay on his job, usually verbalizes excessively
with work mates. On occasion he has refused to
fill out work orders and coupled with the fact that he never reveals any information about his
assigned tasks make the foreman's task that much
more difficult. On at least three occasions
this man has been spoken to regarding these matters
by myself, Mr. B. Davidson and Mr. T. Madrus.
In the reply to the grievance, the employer took the position
that the document, as was stated on it, was a counselling advice
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only and that there was no disciplinary action involved or
intended. This position was maintained by the employer throughout
the grievance procedure and at a later stage of the procedure,
it was suggested to the Grievor that he was free to place a
letter in the personnel file addressing the issues as he saw
them. The matter proceeded to a hearing.before this Board ,and
at the commencement of the hearing, Counsel for the employer
took the preliminary position that the grievance was not
arbitrable under the provisions of the Crown Employees Collective
Bargaining Act or under the Collective Agreement on the ground s
that the document did not purport in any way to discipline the
Grievor and there was, therefore, no alleged breach of the
Cdl~ective:~A&ement'~which would give us jurisdiction to
entertain such.a grievance. Mr. .@Dermott stressed the distinction
between disciplinary and non-disciplinary responses on the part
of an employer and referred us specifically to Re Corporation
of the County of Norfolk (1972), 1 L.A.C. (2d) 108 (Palmer) and
Re Childrens Aid Society of Ottawa (1978), 18 L.A.C. (2d) 437
'.~, (Abbott). .It was his position that on the specific language of
the document and as specified in the replies to the grievance,
the document was correctly characterized as a non-disciplinary
response and, therefore, not within the Collective Agreement
provision requiring that there be no discipline without just
cause. Mr. McDermott specified the desirability in the context'
of industrial relations of dealing with such situations outside
of the formal disciplinary processes.
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In addition, Mr. McDermott argued that since the
document was something other than a disciplinary notation, it
came within the rights of management as expressed in Article 6
of the Collective Agreement. In the absence of any specific
limitation or restriction on those rights elsewhere in the
Collective Agreement, it was Mr. McDermott's position that we
had no jurisdiction to review the document. Reference was
made to Re Libbey St. Clair Inc. et al (19811, 33 0.R. (2d) 768
(Div. Ct.) and Re Metropolitan Toronto Board of Commissioners of
Police (19811, 33 O.R. (2d) 476 (C.A.). c
When asked whether' or not the document would ever be
referred to, in any future disciplinary proceedings involving the
Griever, Mr. McDermott responded that it would not be used either
as constituting an earlier disciplinary incident or as justifying
greater severity in penalty with respect to the subsequent
incident. It was, however, his positionthat it could be used
as an indication of what the employee was aware of and to establish
that the employee was aware of what was the employer's policy in
the areas covered by the counselling.
On behalf of the Union, Mr. Posen argued that the
format of the document was clearly disciplinary. He suggested
that it contained allegations of a litany of industrial offences
purported to have been made or done by the Grievor which, if
not subject to review within the arbitration jrocess, lea\-es these
allegations unanswered on his record. Mr. Posen argued that
the Grievor's concern in that regard was substantiated when on
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June 15, 1982 he was given a document tha,t was'entitled "Notice
of Discipline" and in that document, there was reference to the
March 11, 1982 counselling in the following language:
You were advised on March 11, 1982 that your
work performance with regard to frequent
absences from your work location was
unsatisfactory.
Mr. Posen concluded that the issue of whether or not something
constituted grievable discipline depended on whether ore not it
would have a prejudicial effect on the Grievor in future
discipline or grievance proceedings. Reference was made to the
authorities as summarized in Brown L Beattv, Canadian Labour
Arbitration, at page 365. Reference was also made to
Re Notre Dame Integrated School Board (19781, 22 L.A.C. (2d) 286
!Harris) and Re Owen Sound General and Marine Hospital (1977),
16 L.A.C. (2d) 11 (Abbott). In substance it was Mr. Posen's
position that on the face of the document, it constituted
discipline and that unless the'Grievor was permitted to challenge
the factual matters raised, he was found to be prejudiced by
its presence in his file.
Similar issues as to arbitrability have come ~before
this board on previous occasions. In Re Cloutier, 20/76, the
board was considering an appraisal report and as appears from
page 8 of the decision, the disciplinary aspect was not
seriously pressed by the Grievor. The board found as a fact,
that the letter was not intended to have a prejudicial effect
on the Grievor's position in future grievance proceedings and
that it, therefore, could not be characterized as a disciplinarq
notice. A similar result was reached in Re Naik, 108/77, wherein
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the board expressed the view that only if the warning will have
a prejudicial effect on the employee's position in future grievance
proceedings, in the sense of being used to build up a record
against the employee, could it be characterized as disciplinary
action. In Zuibrycki, 425/81, the board stated at page 5 as
follows:
It seems to us that each written document must
be considered in the light of what it states
and in the light of the relationship between
the parties prior to its receipt.
(
To try to distinguish between a letter which raises the
possibility of future action (non-disciplinary)
and one which is a final warning or which is
- used to build up a record against the employee (disciplinary) seems to be an exercise in
futility. As a matter of policy, we feel
that unless specific'action is taken against the employee at the time of the letter, the more appropriate remedy for the employee is for he or she to respond by way of a
letter setting out his version of the facts
and requesting that the letter be included in his personnel file. In this way, at least,
the theory that the employee has accepted the
allegations may be negatived in subsequent proceedings.
Finally, in Re Hamblin, 63/82, the decisions are reviewed and
certain conclusions are reached by the board on page 12. \..
(a) The character of a communication cannot be judged simply by the title it is given by the employer. The critical consideration is the
substantive effect of the letter or note.
(b) A disciplinary communication is one which is
intended to punish or chastise the employee
for failure to perform properly. In a system
of progressive discipline, one will often see
a very minor disciplinary response to a failure, followed by progressively more severe
responses to the same or similar failures of
performance. Thus the first disciplinary
action, though very mild, has significance
beyond the immediate purpose because more
severe discipline can be built on the first
for further such failures of performance.
. . .’
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Cc) A non-disciplinary communication may counsel or
recommend certain conduct to the employee, but
it has no significance for future discipline.
In other words, a non-disciplinary communication cannot prejudice the employee.
Only in Zuibrycki does there appear to be a requirement of
specific action taken against the employee at this time in
order to constitute the matter disciplinary. The other authorities
focus on the aspect of prejudice to the Grievor in future proceedings
by reason of the notation and such a focus would appear more
( consistent with the authorities in the private and industrial
sectors. c
It is clear from the authorities that each particular
case must be considered based on the nature of the particular
document involved and the sort of matters that are being
considered in it. In examining the notation of March 11; 1982,
it may be noted in the first instance that it is not directed
to the employee but is rather written in the third person in
narrative style outlining certain events alleged to have taken
place. This format would appear to be more consistent with the
creation of a written record of certain incidents that have
taken place, rather thancounselling and advice to a particular
employee. Reference is made to attendance and lateness record,
unreliability, poor work attitude, and the allegation is that he
is a disruptive argumentative and non-productive individual.
It is hard to imagine any type of employment relationship wherein
conduct of that nature would come within acceptable standards of
employee behaviour. The suggestion that the document'would be
i used in future proceedings only for the purpose of establishing ~
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that the employee was aware of the employer's policy in the
particular area, therefore, seems somewhat unrealistic.
The document itself is written in an accusative manner, mentioning
conduct that could only be described as culpable and it is not
the sort of document one would expect to find where the employer
was attempting to counsel, train or educate an employee with
respect to work procedures and the employee's work progress.
It would, therefore, be my conclusion that on'the plain language
of the document, and notwithstanding the title the employer has
chosen to give it, the document is disciplinary in nature and
clearly will be prejudicial to the employee as there is nothing
to make it inadmissible in future proceedings. We recognize the
desirability of less formal and non-disciplinary approaches to
certain employee.conduct and it is open to the employer to
develop's system of counselling and advisory notices, which are
worded more in the language of counselling and training and
which are clearly specified not to be relevant or material in
any future disciplinary proceedings.
'.
In the result, it is our conclusion that the employer's
preliminary objection be dismissed. The hearing will reconvene
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on a date to be fixed by the Registrar for the purpos~e of hearing
evidence and argument on the merits of the matter.
DATED at Toronto, this 22ndday of September, 1982
$z& ,
R.L: Kennedy Vic& Chairma-
P. Warrian Member
v J. Slorrow Member