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HomeMy WebLinkAbout1984-0361.Kelly.84-10-15361/84 IN 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: Hearings: Amalgamated Transit Union (Michael Kelly) Grievor - and - The Crown in Right of Ontario (Toronto Area Transit Operating Authority) Employer R. L. Verity, Q.C. Vice Chairman K. O'Neil Member W. A. Lobraico Member G. J.'Charney, Q.C. Sack, Charney, Goldblatt & Mitchell Barristers & Solicitors Mr. W. J. Hanson Counsel Osler, Hoskin & Harcourt Barristers & Solicitors September 7 & 11, 1984 ' -2 - DECISION This is a discharge grievance in which Michael Kelly alleges that his employment with GO Transit was improperly terminated on March 14, 1984. The relief sought is reinstatement with compensation for lost wages, with no loss of benefits. The Grievor is presently 25 years of age. He was first employed by the Authority on December 3, 1979 as a ticket collector at Toronto Union Station. Subsequently, he acquired in excess of four years seniority in that position. The Grievor was discharged on March 14, 1984 for repeated incidents of lateness in reporting for work. In the letter of discharge, it was noted that between February 27 and March 6, 1984, the Grievor arrived late for work on six separate occasions. A review of the Grievor's work record revealed numerous similar incidents and on the basis of that record his employment.was terminated. Few facts were in dispute between the Parties. Evidence of the Grievor's lateness in reporting for work during the final two week period was as follows: February 27, 1984 'February 28, 1984 March 1, 1984 March 2, 1984 March 5, 1984 March 6, 1984 3 minutes 14 minutes lminute 1 minute 1minute 2minutes -3- The Grievor is a permanent part-time ticket collector who works a 31 hour split shift Monday to Friday during periods of peak commuter usage. Evidence was presented that approximately 50,000 people utilize the GO Transit system on a daily basis at Union Station, with 80% of commuters embarking and disembarking from GO Trains during peak traffic periods in both the morning and afternoon. The GO Concourse is located at Toronto Union Station and contains some 14 ticket booths. In addition, there are six additional ticket booths located in the Great Hall at Union Station. The ticket collector's job is to collect tickets from commuters and to provide basic information regarding GO Transit, the T.T.C. System and Intercity Train Connections. The Grievor is required to punch in and to be on duty at 7:00 a.m. when he works the morning shift, in order to open a ticket booth, perform elementary start-up procedures, and be in position for the arrival of the first train at 7:OS - 7:09 a.m. Failure to be at work at the appointed time creates inconvenience to superviso,rs and other employees and may cause inconvenience to the general public. Where an employee fails to report for work on time, Management is required either to obtain the services of other staff to operate the booths or, alternatively, to close down the ticket booth. Employees are given no advance notice until they,arrive for their shift as to whether they will be assigned to a ticket booth in the GO Concourse or in the Great Ha ,ll. .- x - 4 - The Grievor's work record leaves much to be desired. On January 22, 1980, the Grievor received a written warning from the Employer that he had been late for work on eight separate occasions in less than two months. These episodes of lateness varied in duration from three minutes to twenty-five minutes. In July, 1981, he received a second written reprimand which was described as a "second and final warning." That letter went on to state: "Should your tardiness continue, wa will have no alternative but to terminate your employment." In a letter to the Grievor dated June 7, 1982, GO Transit Superintendent R. J. Strevez suspended the Grievor for habitual lateness and absenteeism and further advised that he had recommended that the Grievor's services be terminated. Management did not accept the Superintendent's recommendation, but did suspend the Grievor on that occasion for ten working days. In 1983, the Grievor was late for work on 18 occasions (200 hours of lateness), varying in duration from 2 minutes to 36 minutes. In spite of that record, there were no incidents of lateness attributable to the Grievor between January 13 and July 15, 1983. In that year, the Grievor achieved the dubious distinction of having accumulated the highest record of lateness of any indi- vidual employee classified as a U.C. - 1 Ticket Collector. . -5- In September of 1983, the Grievor received a one day suspension for failing to produce a valid medical certificate for absenteeism on September'9, 1983. On December 20, 1983, the Grievor attended a meeting with GO Transit Staff Relations Officer H. V. Flood and Superintendent Strevez concerning unsatisfactory attendance. Subsequently, on December 23, 1983, Mr. Strevez wrote to the Grievor in reference to that meeting. That letter read in part as follows: 11 . ..Fimm 1 January, 1983 to date, you have booked sick on nine occasions and arrived for work late on eighteen days. . ..EIu-irq thatmaeting, Mr. Flood spoke at length of the @xztance of arriving for work on tine. When presented with your record of tardiness, you advised that you ware not ccnpletely aware of the total number of days yau had missed work. You agreed that it appeared serious, and muld neke an effort to *rove. It was further suggested during that neeting, that unless you inprove your record of attendance, an altemativewouldbe to simply r-e you fromyour morning shifts, and allaw you to mrk afternoons only. 'Ihis~ldreduceyour~rk schedule tc sixteenhcmrs per week. It was decided that your attendance will be closely monitored &ring the next several weeks, at which time I will advise Mr. Flood of your perfomence. A continued effort to improve your attendance is wcted during 1984." Lateness continued to be a problem for the Grievor in 1984. The record for that year excluding the two week pay period referred to above, is as follows: - 6 - January 2, 1984 January 16, 1984 January 18, 1984 January 24, 1984 February 6, 1984 February 15, 1984 February 21, 1984 120 minutes 6 minutes 10 minutes 6mirutes 6 minutes 13 minutes 3minutes In his testimony, the Grievor made no attempt to explain his punctuality problems except in terms of generalities. Essentially, the Grievor attributed his difficulties to T.T.C. bus scheduling, over- sleeping and missing buses. He attributed the reoccurrence'of lateness problems in July of 1983 to the fact that he had "slackened off" following a six month period of exemplary behav~iour. The Union alleged that the January 2 lateness should have been recorded as absence from work. The Grievor's explanation for his 14 minutes lateness for the afternoon shift on February 28, 1984 was credible in the sense that his difficulties were directly attributable to a snow storm. Mr. Strevez testified that the Grievor was "an average employee" when on duty; however, his attendance record was so poor that discharge was the only appropriate resolution. The Superintendent testified that on numerous occasions, he had discussed the incidents of lateness with the Grievor and was aware of the fact that Supervisors had taken similar steps, all to no avail. It was the evidence of Mr. Strevez that no explanations were offered by the Grievor for incidents of lateness. In summary, Mr. Strevez felt that the Grievor had made no attempt to correct his problem in spite of repeated warnings and counselling sessions. -7- Counsel for the Employer attempted to justify termination in the doctrine of culminating incident. The culminating incident was alleged to have occurred in alternate submissions - either the incidents of lateness following the December 20 meeting or alternatively the six incidents of lateness during the two week pay period between February 25 and March 9, 1984. It was argued that modification of penalty was inappropriate in view of the fact that the Grievor had received warnings, suspensions and counselling and there had been no meaningful response to these corrective measures. Initially, Counsel for the Union argued that there was no culminating incident and accordingly, there was no entitlement to rely upon the employment record to justify termination. The Union Counsel acknowledged that the Grievor had a severe problem with lateness. However, the thrust of the Union's position was that the Grievor had received "mixed messages" from the Employer regarding penalty was disciplinary action, and accordingly, modification of appropriate. The doctrine of culminating incident is, of course, well established in arbitral precedent. This is the doctr ,ine "that an incident of misconduct not in itself sufficient to ground a discharge, but sufficient to ground some significant disciplinary action, will permit an arbitration board to take into account the employee's entire record, including the culminating incident itself, in deciding whether -8- just cause exists for discharge." Re Weston Bakeries Ltd. and Milk and Bread Drivers, Dairy Employees, Caterers and Allied Employees, Local 647 (1973), 5 L.A.C. (2d) 38 at p. 38 (Adell). In Re Air Canada land International Association of Machinists, - Lodge 148 (1973), 5 L.A.C. (2d) 7, Arbitrator Andrews states at page 10: "The cases indicate that even conduct warranting no more discipline than an oral reprinund,may constitute a culminating incident which, together with a previous lxor record, will justify a discharge - See Re U.A.W. Local 1235 and'Canadian Allis-Chalners Ltd. (1953), 4 L.A.C. 1573 (McConbs); See also Re U.S.W. and Canadian Liquid Air Ltd. (1972), 23 L.A.C. 395 (Brown)." On the evidence, the Board would characterize the six incidents of lateness during the two week pay period ending March 9, 1984 as a culminating incident, which justifies both the imposition of a meaningful disciplinary response and a review of the Grievor's entire work record. Clearly, this Grievor has accumulated a work record that is most unsatisfactory in terms of frequency of lateness. The frequency of the Grievor's lateness during both morning and afternoon shifts is disturbing. Oral and written warnings,as well as counselling, have failed to correct the problem. In our view, the Grievor is capable of rectifying the problem as he demonstrated during a six month period of prompt attendance from January to July of 1983. It may very well be that immaturity on the part of the Grievor accounts for this continuing problem. - 9 - There can be no doubt that an employer has the right to expect that an employee will be punctual in reporting for work. GO Transit is a mass transit system that cannot function efficiently if employee lateness is tolerated. The employer has good reason to require employees to be in place and ready for work for any given shift. Failure to report for work on time causes inconvenience to supervisors, other employees and to the general public. However, in the instant grievance, the evidence indicates that the Grievor has received confusing signals from the Employer. Stronger action might have been anticipated by the Employer against the Grievor as early as January 22, 1980, when the Grievor had then acquired some 8 latenesses in less than a two month period. The first "final warning" to the Grievor occurred as early as July of 1981, and yet the problems were allowed to continue unabated in both 1982 and 1983. Perhaps the clearest example of mixed signals to this Grievor occurred as a result of the December 20~ meeting. The December 23, 1983 letter from the Employer contains the threat of removal of the morning shift and a reduction of the permanent part-time employment from 31 hours to 16 hours per week. The Grievor's 1984 performance was again unsatisfactory, and it would have been reasonable to anticipate that management would have carried out its threat. - 10 - In the circumstances, we find that the penalty of discharge was excessive and that a lengthy suspension would be the more appropriate penalty. Accordingly, the Board advised the Parties by telegram that the Grievor would be reinstated effective Monday, September 17, 1984 with the commencement of scheduling to be mutually agreed upon. That reinstatement was without compensation but with no loss of seniority. In reinstating the Grievor, the Board is influenced to an extent by the results of several performance reviews, the most recent being on February 7, 1983 where the Grievor's performance was rated as "fully satisfactory." In addition, this Grievor received a letter of commendation from Superintendent Strevez on January 28, 1983 for his "truly amazing" apprehension of a commuter attempting to exit while using a monthly student pass in a fraudulent manner. Reference was made in that letter to the fact that the January 27 apprehension was the Grievor's eighth or tenth apprehension. No useful purpose can be served by ordering any further counselling for this Grievor. The Grievor shall be reinstated for a probationary term of one year, during which time he shall be assessed quarterly with regard to lateness and attendance. The Grievor shall be advised in writing quarterly following each assessment. In addition, the Grievor shall be required to produce - 11 - a medical certificate from a duly qualified physician for any and all absences from work. On the evidence, 'we are satisfied that the Grievor now recognizes his difficulty with punctuality and attendance, and is prepared to take the necessary corrective action. He alone can correct the problem. The location of the Grievor's present residence is sufficiently close to the job location, that inadequate bus scheduling should no longer be a problem. Any subsequent change of address :on the part of the Grievor should be such that reporting to work on time does not create a problem. The Board is of the view that punctuality problems are, in the main, attitudinal problems, Failure on the part of the Grievor to rectify this problem will make continued employment tenuous if not / impossible. DATED at Brantford, Ontario, this 15th day of October, A.D., 1984. R. L. Verity, Q.C. - Vice-Chairman K. O'Neil - Member I W. Lobraico - Member