HomeMy WebLinkAbout1984-0083.MacPherson.86-02-10-
83184
IN THE MA'JL'IER OF AN ARBITRATION
Under
Before
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THEGRIEVANCES~BoARD
BetWSIl: OPSEU (lbllis L. (Olexy) MacPhersonI
and
'he Crown in Right of Ontario
(Ministry of Ckxmnnity and Social Services)
Before: G.J. Brandt Vice-Chaixpn
T. Traves Member
G.B. Walker Member
For the Grfevm-: M. Farson
Comsel
Cornish & Associates
Barristers &,%licitors
For the Employer: C.H. Slater
Counsel, Legal Services Branch Ministry of Camrmnity and Social Services
Hearings:
Grievor
~bployer
October llth, 1985
Novaber 29th. 1985
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'DECISION
Hollis MacPherson (Olexy), an Income Maintenznce Officer emp!oyed
by the Xinistry of Community and Social Services, complains, that certain.
izctructions issued to her in 2 memorandum dated September 16, 1983 are
diccip!ixry in nature. She c!aims that, as a result oi thu memorznd~m. she
hak had to perform the’dutiec of a Pxental Support Yorker 2nd that, in
consequence thereof, her work load increased, her performance appraisais
suffered, her abi!ity to do her own work adequatel)r was impaired and her
self-esteem among her colleages suffered. _’ r!: relief she asks that the 3oard
direct that the “ertra” dutiec which she had to perform be re-zssigned back -
to the Parental Support Korker (hereinafier PST’) and thzt she be aararded
mcnetary ccmpe.zsation in respect of these ertrz duties performed to date.
It is the decision of the Board that the grievance be dismissed
.k an Income Maintenznce Officer (IMO) the grievor’s.duties involve
her in processing applications under the Fami!y Benefits .4ct for vario,us
benefits included among which are h4other’s Allowance. Disability Pension,
and Foster Children’s Xlloarance. She is required to determine the eligibili?y
of applicants for xxh aIlou?ances. Section 8 of the Family Benefits Act
requires that applicants for benefits, in or,der to establish eligibility or to
continue their eligibility. make efforts to obtain other income to which the)
ma)- be entitled. In particular, it is nece.s c ary that an app!i& for h4other’s
A!liwance obtain, or attemp! to obtain, the maintenance to u;hich she may
he exitled under the provisions of the Family LZW Reform ACI. An IL40 is
rf-qked to ensure that an applicant fo; beneli,. “c under :hc Cr nil!; Benefits . ,. , 6
Act is actually receiving support ordered by a Family Cour’t, or, il not. to
re’quest the. client to contact”the Court ,and seek enforcement of its order.
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In connection with matters involvim the Family Court the’IM0 works
in ascociation~c.‘irh a PST. The principal rclsponcibi!ities of the PST are to
ensure that family maintenance payments ordered by the Courrs are made
on a regular basis, to investigate cases in x,-hich the payor is in default for
the purposes of reinstating payment. and to represent the Ikqinistr!: in court
actions as required. C;hec the IX0 requires Mormation concerning the
receipt of maintenance, information nthich must be obtained from the Family
Court. she compietes a referrai form khich is given to the PSI] and which
the PSK’ acts 02 in order 10 cbtain the information necessary for the I%10 to
process the applica:ion under the Farnil>-‘Eenefits .4ct.
Thus it is necessary for the IMO to a-ork in conjunction with the PSV
ir. order that manv of her duriec can be discharged properly. The root of the
problem in this case concerns the qualii): oi the arorl;ing relationship
bet\-een the griel-or and her PST, Mrs. Gloria LaSota.
The grie\:ot is one of 6 IliIOs working in the Weiland’Office of the
Ministry. .411 6 are served by Mrs. LaSoia. The memorandum which gave
rise to the grievance arose out of an referral by the griever of a matter to
Mrs. LaSora on September 15, 198.2. One of the griever’s clients had been
living in a common law relationship and had had an application for support
declined b!’ a Fatiily Court judge on the basis that she had nor been living
tvith the respondent to the application for a period of 5 ye&s. The client
asked :he griever for an explanation of this decision and. as the grievor Was
unlamiliar vith the relevant pro\-isior! of [he Family Law Reform .4ct. asked \
Xrs. LaSora. through a referra!. to “verify the \raiidity of ithe client’s! claim..”
S5e further asked Yrs. LaSota to plea. $e quote the section of the Family Lan
Worm .4ct so !har I vi11 be aware of.this in future cases” ‘.
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Subsequently, on September 16. 1983. the grievor’s supervisoi. Mr.
Alan Felton. received ,a phone call from ant’ Veronica Giret. the Family Court
Administrator in Velland. complaining about the fact that the grievor had~
questioned a decision of the judge. She asked Felton to have the grievor
contact the Court directly if she had any questions concerning the decision.
Felton spoke to the grikvor the same day and told her of the cali frcjm Wet.
Th’e griever told Felron thai she had had no contact a:ith the Family Court on
this occasion, a fact which Felton accepts as true. Ther’e -?.‘a$ also some
discussion concerning rl?e griever’s working relationship with tirs. LaSota. -.
Xr. FeIton testified that the grievor indicated that she had difficulty working
with Mrs. LaSota. The grievoi in her et’idence cou/d not recaI1 a-hat that -
discussion was about.
In. any event A4r. Felton told her that in future she should contact the
family court directly (apparently to avoid the probiems Phich arose from
the grievor’s difficulty.in working with Mrs. LaSota). The grievor told Mi.
Felton that she did not regard this as a part of her job responsibilities and
asked that it be put in writing.
Later that day Mr. Felron issued the memorandum which is the
subject of these proceedings. That memorandum reads as follows:
“Further to our discussion re communications difficulties with Family Court,
th,is memo confirms my decision that you deal directly u?th Family Court
a-hen verifying x:hether or not a client has attempted to pursue
q axiienance.”
On October 13, 1983 the griever wrote ,to Felton disputing the
substance of the complaint of Giret and advising him that she regarded the
memo as constituting disciplinary action. The same day Felton “clarified” his
earlier memo by stating tha,t “no disciplinary action took place or was
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range of matters, this was due entirely- to the griever’s own interpretation of I
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intended” by the memo. A grievance w!as then filed requesting a a?thdrawa!
of the memorandum or its application to ai! other IMOs. A meeting was held
respecting this grievance and Felton advised thal he would issue a memo to
all Welland IMOs indicating that: they sh@d continue to relate ‘to the
Fmily Court in the s- manner as he had indicated to .her in his IDZIX of
Sept. 16. (This mew) was apparently never issued). He also repeated his claim
that the memo of Sept. 16 ~2s not intended as disciplinary and advised the
grie’c!or that nothing had been placed in her file respecting this matter. The
griever then riled the gripance that is the now before the Board.
The Lnion t&es the position thal the memo was disciphnary and
without justikation. The grieve; testil?ed that as a result of it she was
denied access to the PSW and that in order to serve her clients. she had to
per.‘orm duties w7hich would otherwise have been periormed by th? XV;, .
thereby increasing her work load. Moreover she claims that this was done in
2 discriminatory way in that the other IMOs in her office continued to enjoy
access to the PSV in matters relating to Family Court.
The Ministry disputes this claim. Mr. Felton stated that the memo
spoke only to the question of verifying whether or not a clienl has attempted
to pursue maintenance and did not purport to deny access to the PSW with
respect to other uatters. He further staled thal the general practice among
oiher IMOs was to contact the court directly, by telephone, with~regard to
these matters, although he did admit that i>lOs could use the?97 lor this
purpose if the)’ wished.
It was further submitted by the Xinistr); that, to the.extent that the
‘memo had the eKea ‘of denfing the grie\:or access to the ?SK on a broader
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it. an interpretation which she put on the memo as a result of her own
reluctance to work with Mrs. LaSota. *
The central issue in this case is whether or not the memo was
disciplinary. I;nless the Union can succeed in establishing that, the grievance
must fail. The Ministry takes the posirion that the memo should be
characrerized as a “aiork assignment” father than as “disciplinary”. Ir was
argued thar Mr. Felron. recognizing the difficulry which had arisen in the
L-orking relarionship.between the grievor and hlrs. L2Sota. artempred 10
resolve that in a reasonable n:a)! by re.dking 10 come extenr rhe occasions -.
when ihe grievor would have to n-ark Tcith and through klrs. LaSora.
Furlher it was noted that Mr~. Felron. on at least 2 occasions made it clear -
rhat he did not inrend it to be disciplinary.
'$72 agree with [he Ministry's characterizatim Of the CZZIID~~~~.
In doing so ~6 do not.intend 10 say that the intention of the Employer is
conrrolling. Where an employer responds to alleged misconduct of an
employee in a way which is prejudicial or detrimental to the job interests of
that employee it will not suffice for the employer 10 simply deny that the
prejudicial consequences were not intended. The test is an objective one. At
the same time. however, the prejudicial or detrimenLa1 consequences must
result from action of the employer and an employee cannot converl
some:hing which is, on its face. non-disciplinary. into something which is
disciplinary in effect by his. or her oa’n voluntary conduct.
The question as to whether or nor communications directed by the
Employer ;o an empkoyee are nor are not disciplinary has been dealt a?th by
this Board. In && (GSE Iijr;/i’7! the Board stated that
“....one cannot characterize every communicaCon from
an emplbyer to an employee as disciplinary action.
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Only if the warn& will.have a prejudicial effect on
the employee’s position in fu;ure grieixnce proceedings,
in the serxe that it is being used to build up a record
against the employee, czn it be characterized as
disciplinary action. To conclude othekse would be
to allow an employee to grieve any communication
o?hich he believed to be unfdunded. vith unfortunate
results for the grievance procedure and for the
employer trying to give guidanc? to an emplo:;ee
Tithout engaging in formal disciplinai)’ action.”
That passage T.Fas uttered in a case in n-hich :he Employer had issued
a memorandum which nss labelled Re Misconduct and which aTas critical of
the griever’s conduct. Even in that context the communica!ion was not
coxidered to be disciplinary. In the matter‘before us the communication
on its face has nothing at all of a disciplinary flavour to it.
In reaching our conclusions we would, hotiever. note that in light of
its subpissions in this case, the Employer could not now object if the grievor
were to refrain from assuming those eztra duties which she assumed as a
result of her interpretation of the memorandum; .4s a “work assignment” it
~2s limited to verification as to whether or not clients had pursued
maintenance.
Thus, the end result would be tfr.e same however we disposed of this
matter. Had we found the memorandum to be disciplinary and IO have had
a prejudicial impact through the iccreased c~orkload Ve would have directed
rhe re-assignment of the d~uties back to the PSTV. Vith the grievance being
dismissed the grievor is in the position oJ being able to choose not to
perform the duties she had assumed, the effect of which will be that they
will have to be performed by the PSW.. ‘That this will mean is that, unless
the griever continues to perform the extra duties which she has voluntarily
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assumed (in order to avoid having to work with Mrs. LaSota) she and Mrs.
LaSota wiil have tb work Logether on those? matters u:hich do not involve a
simple verirication of whether or not a client is pursuing maintenance.
This brings us to the core of the problem, viz, the working
relationship between the &rievor and h?rs.‘LaSoLa. It is unfortunate that this
disp.ute. which appears to have arisen as ~2 result of a personality clash, has
had to come before this Board for resolution. Our decision cannot resolve
that probiem and we can only erpress our hope that the parties c2n deal
with it in a cooperative and mutually accommodating fashion.
The Union also ma-de an alternative submission 10 rhe effecr~that,
even if the action of the Ministry cannot be characterized as “disciplinary”
and thereby reviewable on rhe basis of “just cause”, it can be review;gd as an
exercise of management rights %hich has been accomplished in a manner
%hich is arbitrary and discriminatory. It was argued that it was “arbitrary”
in that Mr. F&on did not investigate the substance of the complainr before
he acted and “discriminatory” in that he denied the griever access to the
PSI7 on a broader b’asis than that which applied to the other IMOs. In other
words. even as a “work assignment” it fails to meet the arbitral standard.
Counsel for the Union frankly admitted that rhis was an alternative
position and did ‘not form the main basic for the grievance. Fe would go
further than rhat and say that it was a position which the Union could,not
tzke in these prticeedings. The grievance proiesls the acrion of the Employer
on the basis that it was disciplinary. We understood the &rievance to have
been processed on that assumption. The I’nion cannot now invite the Board
IO di:cose of ihal grievance as if it a:ere a grievznce proIesting a %Ork
assignment”. .The Union’s case stands or falls on the issue as to whether or
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‘nor the memorandum was disciplinary. In view of our conclu&ons on that
matter the grievance must be dismissed. ,,
Dated at London, Ontario, this 10th day of February 1986.
G. J. Srandt, \,‘ice-Chairman
T. Traves. Member
G. B. F’alker. Member
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