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HomeMy WebLinkAbout1987-1101.Drew et al.88-08-08tMP‘O”ES DE LA COURONNE DE L’ONT.4RIO CQMMISSION DE REGLEMENT DES GRIEFS IN THE MATTER OF AN ARBITRATION Under TNE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD Between : OPSEU (Drew et al) / and The Crown in Right of Ontario (Ministry of Correctional Services) Before: A. Barrett Vice-Chairman J. McManus Member D.C. Montrose Member For the Grievers: R. Nelson COUllSt!l Gowling and Henderson Barristers and Solicitors -- For the Employer: G. Lee Senior Staff Relations Officer Staff Relations Branch Ministry of Correctional Services Hearing: ElaI-ch 23, 1488 Grievers Employer These six grievances all concern letters written by the employer to the employees regarding the employees' abo-e-average absentee rate. The employer says that the letters are not disciplinary in nature and therefore this Board lacks jurisdiction under s. 18(Z) of the Crown Employees Collective Bargaining Act to arbitrate the dispute. The Union characterises the letters as being disciplinary and asserts that we have jurisdiction. This preliminary issue has been dealt with many times in the past by differently constituted panels of this Board, and the jurisprudence appears to be settled. [GSB 111/82 (O'Keeffe); GSB 206/84 (Selkirk); GSB 1998/86 (Sundberg); GSB 1635/87 (Walls); GSB 20/76 (Cloutier); GSB 108/77 (Naik); GSB 94/78 (Haladay)]. The letters at issue in this grievance are not identical but they are similar enough to each other that the one reproduced below is representative of all: "April 6, 1987 Mr. S. Drew Correctional Officer 2 Maplehurst Complex Dear Mr. Drew: Re: ATTENDANCE REVIEW JAN.,.g1/86 to DEC. 31186 On Thursday, March 26, 1987 I met with you in the presence of Mr. F. Rabley, for approximately thirty (30) minutes to discuss your use of sick credits during the above-mentioned time period, which totalled sixteen and one-half (164) days on nine 19) occasions. The following is a list of the absences: i 1986 - Jan 16, 17 Mar 7, 29 - in conjunction with R.D.O. Apr 21 - in conjunction with R.D.O. May 11 - in conjunction with R.D.O. June 5 June 21, 22 June 23 - + day in conjunction with R.D.O. JUlV 30. 31 No”-1, i NOV 13, 14 - in conjunction with R.D.O. Verbal Counsel January 24, 1986 During our interview I explained to you that I was not questioning the legitimacy of the credits used but rather pointing out that these absences exceed the institution average and that while it was your responsibility to keep yourself fit for work, it is management's obligation to monitor your health and assist where possible. I also explained to you that your not being available for work can create additional operational difficulties and an increased workload for many institutional staff, notwithstanding the cost factor. During the interview ypu expressed your point of view and outlined your concerns;. I informed you that you were most welcome to submit a written summary regarding the above and that upon receipt of your summary it would be placed with this letter on your file. YOU also submitted a letter dated July 1, 1986 from Jon C. Shearer, M.A. which will be placed on your file at your request. Also during the interview you stated that your absences were due to legitimate illnesses. You also expressed that you felt that having to work with inmates having colds, etc., second hand smoke in the work area and the shift schedule worked were contributing factors to your illnesses. I am available to assist you should further clarification be required. In closing, I would like to note that lack of future improvement will necc*ssitate the careful reassess- ment of your ability to meet the requirements of your position. Sincerely, E.R. Bartlett O.M. 15 Unit 2 Supervisor cc: Personnel file Superintendent/Attendance Review Committee ** I have received the original of this letter Signature: Date: c.o.2 t A very similar letter was consic?red in the GSB Selkirk case cited above. The Board reviewed the jurisprudence and based upon the following factors found that the letter was non-disciplinary in nature. Distinguishing factors were: 1. The Ministry stressed that the letter was not intended as discipline and did not form any part of the grievor's disciplinary record. The Board was assured that in assessing discipline against the grievor in some future incident no reference would be made to this letter. 2. In the text of the letter there ijas no reference to any reprimand or discipline. 3. There was no allegation of fault on the part of the grievor and no allegation that,the absences of the grievor were not bona fide. 4. The letter could not have any prejudicial effect on the position of the grievor in future grievance proceedings. The letters in the instant case meet all of the tests set out above to be non-disciplinary commiinications between employer and employee regarding work performance,and have the additional safeguard for the employee that each was invited to ..* submit any written response or objections he might choose and was guaranteed that his written objections would be attached to the letter in his file. As has bee.-. stated in so many earlier BoL.rd decisions, the employer is nc: only entitled to make written or oral communications to ez?loyees regarding their work F'rformance, it is obligated tc do so where further or progressive action is contemplated if t:7e performance does not improx-e. Once the employer contemplates terminating an employee for innocent absenteeism it is obligated to advise the employee of the unacceptability of t:7e absentee record and the fact that adirerse results cc~ld occur if the absentee record does not improve. We do not find these letters to be disciplinary in nature and accordingly the grievances are inarbitrable. The preliminary objection is upheld and the grievances are dismissed. DATED at Toronto this 8th day ofAugust,lg&E. I D. MONTROSE Member