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HomeMy WebLinkAbout1983-0037.Eisnor.83-06-14IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIti BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD Between: OPSEU (Pat Eisnor) Before: 'For the Grievor: . For the Employer: Hearings: Grievor - And - The Crown in Right of Ontario (Ministry of Correcfional Services) Employer R. J. Roberts Vice Chairman L. Robinson Member P. D.~Camp Member M. Pratt Grievance Officer Ontario Public Service Employees Union J. F. Benedict Manager, Staff Relations Personnel Branch Ministry of Correctional Services March 25, 1983 May 16, 1983 . -2- 5 ‘.> DBCISION This arbitration involves the termination of the grievor . The Employer, the Ministry of Correctional Services, submitted at the hearing that this termination was a bona fide "release", and hence not reviewable by the Grievance Settlement Board. The Union, the Ontario Public Service.Employees Union, contended that this term- ination was a "discharge", and hence was reviewable. We re- jectedaUnionrequestthattheissueraiSedintner;mpioYrr's .preliminaryobjection, i.e., thequestionof reieaseversusdismissal be dealt with before any hearing on the~question whether there was just cause to discharge the grievor. The preliminary objeotion was the Employer's; and the Employer did not object to our hearing the entire substantive case before ruling upon whether this Board had jurisdiction of the matter. I The circumstances giving rise to this case occ~urred as follows: On April .19, 1982, the grievor began employment at the Metropolitan Toronto West Detention Centre as a probationary Correctional Officer (C.0. 1). This appointment came 'almost two years after the grievor had commenced working at this facility under contract as a C.O.l-casual. In her latter capacity, the grievor was limited to working 24 hours per week or less. ,There was no evidence at the -3- hearing as to how,many hours per week .the grievor had worked as a casual employee. For the first few months~ of her probation things seemed to go well for the grievor; however, in the fall of 1982 there began a series.of incidents tending to indicate that the grievor had developed an attitudinal problem. The _ first such incident caused considerable embarassment to Management. It seems that on September 29, 1982, the grievor quipped to an Ombudsman Investigator, Mr. J. Hobson, that Correctional Staff filed inmate requests under "G" for garbage. The following day, Mr. Hobson visited Mr. N.L. Jones, the senior ,Assistant Superintendent of the Detention Centre. He told Mr. Jones that one inmate was complaining that inmate requests were not being taken by the staff and if they were, they were being thrown into the.garbage: Mr. Jones assured him that this was not so. In response, Mr. Hobson said that on the previous night shift, he had spoken to the grievor and the grievor had told him the same thing. Mr. Jones was considerably upset by this information. He assured Mr. Hobson that this was not in fact the case and that her had dealt with several inmate ~requests himself.* *It seems that inmate requests are taken to be a serious matter within the correctional system. For inmates, they are their only means oft contact with the outside world. For this. reason, inmates look forward to the period from 3:00 p.m to 4:00 p.m. each day when inmate request forms are 'collected by the Correctional Officers, -4- Following this, Mr. Jones' conducted an investigation to determine whether the grievor had, .in fact, made the comments in question. When he found out that she had, he wrote 'to her the following letter: October 1, 1982. Ms. P. Eisnor I Correctional,Officer 1, Metro Toronto'West Detention Centre. Dear Ms. Eisnor: This letter is to formally warn and counsel you as to your inappropriate remarks voiced to Mr. J. Hobson, Ombusdsman Investigator, on Wednes- day, September 2.9, 1982, concerning inmate re- quests. Your remarks cast a slur and challenged the credibility which has taken many years to develop between the Correctional Staff of this institution and the Ombudsman* Office. Your re- marks degraded the professional approach taken by your fellow co-workers in inmate management. You, Ms. Eisnor, may feel that inmate requests are stupid/improper, however to my knowledge you, with your extremely limited experience in inmate management, are 'not qualified to file any,inmate requests under "G" or attempt to crudely get a raise out of the Ombudsman Investigator. It is hoped that Mr. Hobson classifies your remarks as a joke showing your immature behaviour and the remainder of the staff's professional attitude towards inmate requests overshadows your conduct. I must point out Ms. Eisnor that I consider your action serious enough to jeopardize your contin- ued employment with the Ministry of Correctional Services. Your immature behavicur will be re- flected on your appraisals which will be taken in to consideration at the termination of your pro- bationary year. l (sicj .:. i -5- 1 ham reluctantly prepared in this .instance to deal with'the matter by a formal warning and counselling and this letter will be placed in writing for inclusion on your personal file. Should there be any further occurrence similar in ~nature; you must be prepared to accept that disciplinary action may be .taken. You are requested to sign a copy of this letter indicating that you have 'understood the contents set out therein. Yours truly, N.L. Jones, Sr. Assist, Superintendent. I NLJ;sc cc: Personnel File Mr. Jones handed the original copy of this letter to the griever in his offi,ce. He asked her to read it and then he ~discussed its contents with.her. He told her that he felt that it wasimmature and unprofessional of her to make such comments, and in any event, she was not qualified to make such remarks. Mr. Jones then asked the grievor to sign the letter. She became hostile and refused to do so. Given this experience with the grievor, Mr. Jones requested the five shift supervisors who would have been directly responsible for the grievor to submit up-to-date appraisals of her performance. Four of these shift supervisors -6- returned appraisal forms rating the grievor as "unsatisfactory" in the categories of "interest and,motivat$on towards'the job" and "ability to accept constructive criticism." The apparent deterioration in the griever's attitude was most strikingly illustrated in two appraisal forms submitted by one of the shift supervisors; Mr. P. O'Xeeffe. For the period from May 18, 1982 to June 16, 1992,,Mr. O'Keeffe rated the grievor highly in the two categories noted above. He remarked that the grievor "seems alert to C.O. needs. Seems to enjoy [being a C.O.I. [She1 accepts direction in an adult manner." The report for the period from July to October, 1982'told a considerably different' story. Mr. O'Keeffe found it necessary to elaborate his adverse,ratings in tSe same two categories as follows: Dear Sir: Ms. Eisnor is akncwledgeable C.O.who appears to put a less than important value on her job performance. While there is no question about her abilities, Ms. Eisnor seems to require intermittant super- vision, because of what appears tobea projection of immature behaviour. It seems much more relevantwhoher immediate super- visor is -- that will determine her behaviour: -Of the Female C.O. 3's, polled about Ms. Eisnor, no one could give a positive assessment -- from irresponsible to need of constant supervision and immaturity. -Of the male C.O. 3's polled, Ms. Eisnor is reflected as knowledgable, a good performer requiring intermittant supervision. -7- [I] recommend a supervisory interview. Signed: P. O'ICeeffe. Mr. O'Keeffe ~testified as to some instances of immature behaviour which.'led him to reach the above conclusions. Similar tes~timony regarding attitudinal deficiencies on the parf,of the,grievor wasgiven by two other shift supervisors, G.W. Pickering and F..Meers. While these reports were being compiled, Mr. Jones experienced a further problem with then grievor. It seems that three days after the grievor refused to sign the letter regarding the Ombudsman Investigator's incident, the grievor stopped Mr. Jones in the hall and told him that she wanted to discuss the letter. Mr. Jones opened an office door and asked her to step inside to discuss the matter in private. The grievor stood in the middle of the hall and in a loud voice that otherscould hear said,‘ "Under no circumstances will i enter an office alone with you. 'I Mr. Jones became embarrassed. The remark was made while 'the hall was crowded during a shift change. At least -one 'of the other female staff told Mr. Jones that she had overheard the remark. Mr. Jones testified that this / female staff member told him that it was good that. the staff knew him because if they did not know him the griever's remarks would have indicated a fear that something improper would take place in the~'office. -8- His own experiences with'the~ 'griever and the negative reports from the majority of the shift supervisors regarding her attitude pled Mr. Jones to conclude that she ought to be. terminated. On October 14, 1982, he wrote a memorandum to Mr. R.P. Barrett, the Superintendent of the Institution, in which~'he ,made 'this recommendation. This memorandum stated, in pertinent part: I would also like to draw to your attention the attached ~letter of warning and counselling present-. ed to Ms. Eisnor, concerning her remarks to Mr. Jim Hobson, Ombudsman's investigator. I interviewed Ms. E&nor and presented her with'our letter: however, she refused to sign the copy of this letter. In view of the above, which has raised doubts in my mind as to her contingent employment, I had the Shift Supervisors (Messrs. Meers, Pickering, O'Keeffe, Wijeyesekere, and Byrne) submit up-to-date appraisals which~'are 'attached. With the exception of Mr. Byrne's appraisal, the remaining Shift I/C's rate her in two critical areas of motivation/interest and ability to accept criticism below average. Both these areas show a definite 'immaturity level and a lack of commitment to her present employment. Based on the above reasoning, I am recommending that Ms. Eisnor's.period of employment be terminated with the Ministry of Correctional Services. N.L.' Jones, Senior Assistan NLJ:ar attachments. t Superintendent. This menioran,dum reached Mr. Barrett within a day., He discussed with ‘Mr. Jones the 'latter's recommendation and - 9 -’ this conclusion from information derived from other observations the foundation for it. Mr. Barrett testified that at that time he decided that the grievor should not be terminated but should be given one last chance. He said, "I pulled the grievor into my office later and told her that I would give her a second chance with the necessary improvements in her attitude and performance. She agreed. I think we signed the appraisals during that time. . . . I felt that the grievor's youth and work experience were the causes. I thought it was something that could be cured with experience. The fact that she came up against the Ombudsman in a fairly serious situation, I thought, would mature her, so I felt confident in giving her a second chance." Soon, however, incidents began to occur that indicated that the grievor,'s attitude was not improving. At the beginning of.December , Mr. Meers addressed a memorandum to Mr. Jones in which he stated, "On Tuesday, 30th November 1982, I observed Ms. Eisnor smoking a cigarette while on assigned duties at the Chapel. I informed Ms. Eisnor that it wasnot~in order to smoke when assigned duties in that area. Ms. Eisnor discarded her cigarette at that point. For some reason this officer seems to have adopted a flippant attitude towards her work." As to the flippant attitude,, Mr. Meers testified that he most probably drew - 10 - of the grievor. He stated, "I used'flippant to indicate thiit thei grievor had become very nonchalant." Shortly thereafter, on December 6, 1982, management received another indication that the grievor's attitude was not changing. Mr. Barrett received an Occurrence Report from a C.0. 3, W. McArthur, indicating that the grievor, in an agitated stated, referred to him as a "fucking goof" within earshot of others. This report read as.follows: Dec. 6, 1982 To: R.P. Barrett RE: Officer P. Eisnor CO1 Sir, At appromixately 1450 .hours on Monday, Dec. 6/82 Correctional Officer 1, P. E&nor approached myself, W. McArthur in the scheduling office at the Metro Toronto West Detention Centre Room number C.1048. Present in the office at the time,was Mr. G. Chaisson CO2 who had been inquiring about another.matter. Miss P. Eisnor.COl politely asked if she could inter- rupt the cmnversation for a quick question, and was told by myself by all means, go ahead. Iwas then asked by Miss P. Eisnor CO1 if she could apply for a straight shift change as opposed to applying for time off. I inquired of Miss Eisnor if the situation could be viewed as an emergency to which she replied in the negative, stating thatshe wished to save her lieu days. I then explained to Miss Eisnor CO1 that the guidelines ,concerning time off, were outlined on the time off request form, ,and that her time of request was not in keeping with 'the rules as posted. At this point, Miss Eisnor voiced her displeasure regarding the rules, and left the scheduling office muttering under her breath. - 11 - As Miss Eisnor entered the hallway,,1 heard her conrmen't nfucking.goof". Shortly after this incident, I was informed by Miss L. Sawyer' CO3 that she had observed Miss Eisnor leaving the scheduling office, and had heard her mutter' fucking goof under' her breath: On completing my discussion with Mr. G. Chaisson I informed Yr. P.~ O'Keeffe OM15 #1 shift and Mr. T. O'Connell of OM15 #2 shift of the 'occurrence. signed W. McArthur CO3 Two Correctional Officers who overheard the griever's derogatory remark, Robert Feeney and Laurie Sawyer, submitted independent reports confirming what was said. When Mr. Barrett was apprised of this information, he . determined that the,grievor ought to be re1ease.d. On December. 7, 1982, he sent her the following letter: PRIVATE' '&' CONFIDENTIAL December' 7, 1982 Ms. P. Eisnor Correctional Officer 1 Metro Toronto West Detnetion Centre Dear Ms. Eisnor: This is to advise you that you are to be released from employment with the Ministry of Correctional Services effective this date - December 7, 1982. On October 15; 1982, I met with'you to discuss your . appraisals and unsatisfactory performance. ln doing so, .I received a commitment from you that both your performance and attitude would show a marked improvement in the following months. Unfortunately, this improvement has not been realized, indeed;you aopear unfit for the duties and responsibilities _ - 12 - , and as manifested by your overt distrust and unpro- fessional conduct, you also appear unhappy in the position of Correc~tional Officer. These limitations in your performance, leave'me with no alternative but to release you from employment. You will receive 'two weeks~ severance pay and you are requested to return the 'uniform and all items belong- ing to this Ministry within that two weeks. Yours sincerely, "R.P. Barrett" R.P. Barrett Superintendent RPB.dr On the same 'date, thee ,grievor submitted the grievance leading to the present hearing. Upon considering all of the evidence and argument relating to this matter, it is our conclusion that what occurred here was a bona 'fide release by the Employer and, -- hence this Board does nothave jurisdiction to review the substantive'inerits of the matter. This case bears certain similarities to one dealt with in a previous Award of this Vice-Chairman, G.~S.B: ~(Bar'te'llo) , #61/82 (Roberts) . In that case, a probationer was terminated on evidence i.ndicating an attitudinal deficiency on her part, including -- as here -- a flippant remark which "caused.considerable embarrassment to 1managementJ.v rd. at 7. The Boards concluded that what occurred was a valid release, stating: - 13 - The Publi'c: Service: :Act . . . does not restrict release to involuntary malfeasance such .as incompetence. As was-said in Kedne 1G.S.B. 596/ '81 (Roberts) I, "We emphasizethe 'words used in Leslie; 'attitude 'and capacity', in conjunction tiitfiXiFfailure of thegrievor to nieettherequire- ments Iofl her position,.. . . . ..~he word 'failure' asused in s.22(5) of The Publics Service Act encompasses both voluntary and involuntary deficiencies such 'as attitude and capacity. If the legislature had desired to exclude acts of voluntary malfeasance from forming the basis of 'release' it surely would have used a word 'inability' or 'incapacity' rather than the word 'failure', It seems to us that failure to meet ,in an acceptable way the job requirements for a particular position can form the basis for release whether or not the grievor might have been able to correct his or her attitude or behaviour." .(Citinq Keaneat13-14). ~& at 13. There seems to be no doubt that failure to correct an attitudinal deficiency can form the basis of a valid release' within the meaning offThe Public Service Act. This is precisely what happened here. The grievor, although possessing considerable ability, failed to correct an attitudinal deficiency which reflected poorly on her performance. The grieuor was COuPSeiiea to correct -.-. this. deficiency by both Mr..Jones and Mr. Barrett. There . is non doubt that the griever was given every opportunity to improve and failed to do so. She even was given'a second chance by Mr. Barrett after Mr. Jones had recommended her termination. Whenit-camato Mr. Barrett's attention that despite being given this second chance the.grievor still had not improved her attitude, it was entirely appropriate for h~im to release her. The grievance is ditiissed. Because there was a bona fide -- release 'in this case, we do not have jurisdiction to review the merits. DATED AT London, Ontario this 16th day of June, 1983,. 1983. F' ‘. . . . . Roberts, Vice-Chairman 2: 1100 7: 5020 10: 0000 11: 0000 I ."I dissent" (see attached) L. Robinson, Member P.D. Camp, Member OPSEU (Pat Eisnor) and Ministry of Correctional Services DISSENT 37183 With respect, 1 do not agree. In my opinion, the termination of the grievor was a disciplinary dismissal for whichthere was not just cause. It was established in Hamblin, 63/82 and 68/82, that letters of counselling to employees placed in their employment file are to be considered disciplinary if they refer to the .possibility of more serious discipline in the future. This was clearly so with respect to the letter of October 1, 1982, to the grievor cited at pp. 3 - 4 of the Majority Award. The key paragraph of the ‘letter, which appears at page 4, is as follows: ?Should there be any further occurrence similar in nature, you must be prepared to accept that disciplinary action may be taken.” It is also a well established rule that an employee’s previous disciplinary record can only be submitted to an arbitration hearing if there is a culminating incident which has brought a disciplinary response. In this case, the employer presented evidence of several incidents involving the grievor in late November and early December and these incidents, we were told, led to the decision to terminate her. The employer must take the conse$ence of having submitted the letter of October I, 1982, and accept that the griever’s termination was disciplinary. Indeed, counsel for the employer admitted that terminations could have “tinges of discipline”, which this case manifestly did. One may reasonably ask, how many tinges -2- / are required to colour a termination as disciplinary? I think the Board should likewise draw the appropriate conclusion from having accepted this , letter and characterize the griever’s termination as disciplinary. The next question is, were the incidents of November and December sufficiently serious to warrant discharge? In my view, they :, were not. Moreover, discharge following only the warning of October I, 1982, violated the doctrine of progressive discipline. lf the employer was concerned that the grievor was not performing adequately and that her attitude needed to be improved, a suspension could have been.given, with a repetition of the warning that, should there be further occurrences of a similar nature, even more’severe discipline would follow. Instead, the employer jumped the intervening disciplinary steps and discharged the grievor. The griever was treated with impatience and unnecessary harshness; The Majority Award refers to ‘an attitudinal deficiency which reflected poorly on (the griever’s) performance”. The Award concludes that, in view of the incidents which were alleged to reflect a continuation of this deficiency, “it was entirely appropriate for (the employer) to release her”. 1 think there is a difference between an attitudinal deficiency serious enough to -prevent an employee from meeting the requirements of her position and a deficiency which expresses itself in occasional incidents that might seem to warrant discipline. It seems to me that the incidents complained of fall into the latter category and, as stated, were not sufficient to warrant discharge. This is so, even granting that, the standard of “just cause” IS less stringent in the case of a probationary employee than it is in the case of a regular employee. The -3- , Majority Award, however, avoids the ,issue of just cause for the discharge by characterizing the termination as a bona fide release. As I have said, this seems to’ me to be inconsistent with the warning contained in the letter to the grievor of October I, 1982. Counsel for the employer submitted a number of cases to the Board dealing with the right of probationary employees to grieve their dismissal under Section 17(Z) (now 18(2i) of The Crown Employees Collective Bargaining Act, and hence with the Board’s jurisdiction to review such grievances. The issue goes back several years to Eriksen, 12/75, and has been the subject of a series of Board decisions since then. Among the decisions submitted to the Board was Nicholls, 429/82, wherein it is stated: “In any event, the collective agreement does not allow the filing of grievances in respect of ‘the dismissal of probationary employees (article 27.6.1) and this Board has no jurisdiction to alter, change. or enlarge any provision of the collective’ agreement (article 27.12).” Counsel for the employer argued on the basis of this statement that, since the collective agreement precluded the grievor from filing a grievance, the Board therefore lacked jurisdiction to consider her case. Counsel for the griever argued on the other ‘hand that Nicholls stood merely for the proposition that the grievor came before the Board not under the collective agreement, but rather by virtue of her statutory right under Section 17(Z). It goes without saying that a collective agreement cannot deprive employees of rights conferred on them.by statute, and it was surely not the intention of Nicholls to suggest that it could. Although dissenting from the decision of the Majority Award with respect to this grievance, I am glad to note that it rejects the incorrect conclusion which we were invited to draw from Nicholls. DATED at Toronto, Ontario this 14th day of June 1983. ” &:A,. y2-x P-x--a-- in,-- ,,.~~ ,. .~~.-‘-- ,..~ .-.--.-...-,-. L. Robinson, Member ) .