HomeMy WebLinkAbout1988-0911.Bacchus.89-04-19 · ONTARIO EMPLOY~-S DE LA CO~,IRONNE
CROWN EMI~LOYEES . DE L"ONTARIO
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0911/88
IN THE MATTER OF AN ARBITRATION
UNDER
THE cROWN EMPLOYEES COLLECTIVE' BARGAINING ACT
BEFORE
GRIEVANCE SETTLEMENT BOARD
· Between:
OPSEU (Bacchus)
Gr~evor
The Crown in Right of Ontario
,(Ministry of .correctional Services)
Employer
Before: M.V. Watters VlCe-Ohairperson
T. Browe~-Bugdea Member
L. Turtle Member
Appearance for J, Paul
Grievor: Grievance Office~
Ontario Public Service'
Employees Union
Appearance for' L. Oudyk
Employer: Staff Relations Offlcer
Staff Relations Branch
Ministry .of Correctional~Services
Hearlna: January 24, 1989
Thls proceedlng arises from the grievance of Mr. O.
Bacchus da~ed July 22, 1988, the material pars of wh~c'h reads
as follows:
"STATEMENT'OF GRIEVANCE
I protest ~he actions~'of Management in harassing
me by issuing me a memo of disclpline which, is
to be placed on my file. Memo signed by Mr'. D.
Marsh dated July 20th, 1988.
SETTLEMENT DESIRED
That this unfair harassment cease and that said
memo of disciplinebe removed from my file and
the c'ollect£ve agreement .adhered
Exhibit '2'
The memo which i's referred to in the grievance reads:
"TO: ' ¢02 Bacchus 10/?~88
f
FROM: OM15 Marsh
Failure to Read Log Book on 1'9/7/88
This memo is to advise you that on July 19/88
when you were assigned at EGH, guarding 1/M Gillis R.
32-33311 you faiIed to read the lo5 entries of the
shift you relieved. After speaking with you I am
confident that thls ~would not happen again.
D. Marsh
c.c, Fact File "
Exhibi= ',3~
At the commencement of the heari~gj counsel for the
employer-raised a preliminary objectio~ to the arbitra.bility of
the grievance, Specifically, the employer took the posi,tiou that
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Mr. Marsh's memo was not disciplinary in nature and advised that
it did not intend to treat it as such in the course of any. future
proceed, ings. esther than forming part' 'of the grlevor's "record"
for ~isciplinary purposes, the memo'simply documented a
discussion wherein the employer communicated its concerns vis a
vis the grievor's work performance, The employer indicated that
it was placed in his "fact file"-so that it could be accessed by
shift supervisors who work on a rotating basis, The board was
advised that they. required ac'tess to memos of thi~ type in order
to be able to complete an accurate appraisal or to determine
necessary tra'ining, Thereafter, any document contained in the
fact file is apparently destroyed. Counsel further submitted
that the. inclusion of same in the file did not necessarily mean
that it would be mentioned in the aonual appraisal, lc was
suggested that'as of.the ~ate of the heariu§,'any detrimental
impact Vas purely hypothetical. The employer'took the' position
that the grievor could submit a letter outlining his conderns
with respect to the content of the. memo with the request that
such be placed in his file. If he was ultimately prejudiced in a
subsequent appraisal by the existence o[ :he memo, he could then
grieve and his letter would adequately evidence his disagreement
with the employer's assessment.
The primary argument of the employer vas that as the memo
was not intended to serve as discipline, and would not be used
for this purpose in future, the board lacked jurisdiction t~
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proceed further wi. th the case. In the circumstances presented,
it was submitted that we di{~ not have the requisite authority
under either the Crown Employees Collective /Bargaining Act,
R.S.O. 1980, Chapter 108, as amended, or the collective
agreement, to consider the'merits of th'e grievance. We were
referred co awards 'in.Nait (nov Tabsrally), 108/77 (Swinton) aud
SundberS,'1998/86 (Devlin) i.n support of the above-stated
position.
In response, the union asserted tha~ the memo was indeed
discipli, nary, as it alleged certain culPa'ble conduct on the part
of the grievor which-could serve to prejudice him in future..
disciplinary proc~eedlngs or appraisals. It further suggested
that the memo was being utilized to build a record against the
grievor. The union relied on t.he awards in Blake, 313/82
(Kennedy) and in Re Notre Dame Integrated School Board and
Newfoundland Teachers Association, 22 L.A.C. (2d) 28? (Harris,
.November 1978) to support this position.
This board was requested by the employer to'render a
reasoned decision on the preliminary objection before turning our
attention to the merits of the case. After considering the
nature o[ the objection, we elected to adjourn the proceedings . ·
after'argument so that ~e could issue an awar~ relating to the'
jurisdictional question. Th'e board has .now had the opportunity
to' consider the respective submissions and to assess what effect
should 'be given to the awards cited, Our conclusion is that the
preliminary dbjection mus~ be upheld.
The board is of the opinion that this dispute could.be ..
resolved on the narrow basis of the commitments given by the
employer at the hearing. Firstly, counsel advised that the memo
was not intended to b'e disciplinary .in nature and would not be
used iu any'subsequent case .iuvo'lviug discipline. : Oiven this
statement, we' think that the employer would not be'at liberty to
subsequentlY change course and use the mem° to prejudice the
interests of 'the. grievor. Secondly, counsel argued that a
grievance couId be processed if the memo resulted in a tainted
appraisal. In our judgment, it would be impro~per for the
employer, having, taken such position, to later sgggest that .the
grievor .could not contest the. content Of the memo in any
proceedings arising from such appraisal. The hoard would have
been therefore inclined to dismiss the instant grievance on t~e
grounds that the '~mployer did not intend to treat the memo as
disciplinary and that the possibility of a negative appraisal
was, at Chis time, both speculative and hypothetical.
We are not content, 'however, to rest our decision on the
narrow g'rounds cited above, for it is clear to the board, after 'a
review of the Naik.and Sundber~ awards that the memo cannot be
considered as disciplinary.·
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In Naik, the grievance was f.iled as a consequence of a
written memo entitled "Re: Misconduct" The supervisor referred
therein to the grievor's practice of ta~ing extended coffee
breaks, and to her use of profanity when he spoke to her of such
conduct. The memo its'elf was phrased in somewhat st'ronger terms
than the one presently before this board. It read in part:
"I wish' to advise you that any further outbursts
of this nature will not be tolerated in this office
and I ca~ assure 'you that if it doe's the necessary
action will be taken against you..~ ....... Please
be guided accordingly."
The grievor al'leged that the allegations were untrue and' asked
that the memo be removed from her personnel file. The employer,
as here, raised a preliminary objection as to the jurisdiction o'f
the board. It argued that'the grievance was not arbitrable as
the warning was not disciplinary in natur'e. The board concluded
that this objection was well-foUnded Whi'le it determined that
the memo was, in fact, a warnzng, the board considered that 'it i
was not disciplinary for its purpose was only to provide gu/dance
to thd'employee in respect of the scope of acceptable conduct.
This assessment was also premised on the statement of the
supervisor at the hearing to the effect that the .letter was only
intended as criticism of the srieVor and' was uot intended as
discipline. In this regard, the board stated at' page f~our (4)
of the award:
" ...... , one cannot characterize every communication
from an employer to an employee as disciplinary action..
Only if the warning will have'a prejudicial effect on
the employee's, position in future grievance proceedings,
in the sense that it is being used to build up a record
against the employee, can it be-characterized as
disciplinary action. To conclude otherwise'would be
to allow 'au employee to grieve any communication~
which he believed to be unfounded, with unfortunate
results for 'the. grievance procedure and for the
empIoyer trying to give guidance to an employ~ee
without engaging.in formal disciplinary action."
The union in Naik also expressed concerns as to the
adverse,effect such a memo could have on the grievor's
opportunity for future promotion. The board was not persuaded
that this possibility le'd to the conclusion that the warning was
disciplinary. It suggested the following Course of action as an
-option that the grievor could pursue:
,,If the grievor feels that the charges are'not
well-founded, she can, ..... submit a letter to
the employer and retain a copy for herself. Then,
if she considers herself subs'equently prejudiced
in promotions or appraisal because of this warning,
she can raise the issue in a grLevance at that
time". (page 5)
The board ultimately held that it was without jurisdiction to
hear the merits of the case given its finding that the warning
was not disciplinary.
In Sundber~, the grievor alleged that he had been
disciplined without just cause by way of the issuance of an
unwarranted written reprimand. He requested that the reprimand
be removed from his file. The document in that instance referred
to certain condUct of' the grievor to which the shift supervisor·
took exception. It concluded with .the following statement:
"This letter is not .to be considered as'discipline but as a means
of assist'ins you in becoming a more efficient Correctional
'Officer". At the 'hearing, the employer, as here,, undertook that
the letter would ~ot be used to support future disciplinary
action. The board, after considering'the awards iu
cl°utier 20/76, and Zuibrycki, 425/81, held that the letter in
question was not a disciplinary response even though it had been
placed in~ the grievor.'s file. It was satisfied that the dobument
was intended to provide guidance to the grievor as to acceptable
professional conduct. The grievance was accordingly dismissed as
inarbitrable. .The board, as in Nalk, suggested that if Hr.
'Sundberg felt the emPloyer's criticism .was not ~ustifie~,.he
could ~espond by letter and ask that such response be placed in
It is the view of the board that the ,'cases relied on by
the union are distinguishable from that now before u's, In Blake,
the grievor sought the removal of a "Notice of Counselling
Advice" from his file. He ·alleged tha.t such notice constituted a
form of d~scipliue. The board, aft'er considering the specific
comments made in the not[ce, determined that it was d'isclp.linary
in nature notwithstanding the title the employer had given to it.
lt' therefore concluded that it possessed the necessary
jurisdiction to proceed with the merits. It is readily apparent
to us that ~here is a material difference between the memo in
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Blake and the one submltted '£o Hr. Bacchus. There, the document
contained "a litany" of Complaints against t.he grievor. The
board described it .in the 'following £erms:
"The document 'i£self is w. ritten 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 vhere the
. . employer vas attempting to counsel, train or
educate an employee with respect to work
procedures and. the employee's work progress."
(page 8)
-In our estimation, the language found in the memo of July 20,
19'88 is consistent' with an intent to counsel the grievor'on 'the
subject raised'therein. 'We note that the board in Blake
recognized the desirability of less formal and non-disciPlinary
· approaches to certain empl.o'yee conduct, : It Stated that'i: was
open to the employer't'o develop a syst'em of counselling and
advisorx notices worded more in the 1.anguage of counselling 'and
training which would Clearly specify 'that they were irrelevant
future disciplinary proceedings, in Blake, the employ.er,stated
at the hearing that the notice would not be used either as
constituting an earlier disciplinary inc'ident or 'as justifying
greater.severity in.penalty .ith respect to subsequent'misconduct.
Our reading of the case suggests to us that'th~ board vas not
confiden~ in this assertion. It noted that .the notice of
counselling was, in .fact, referred to in a "~otice of Discipline"
issued some three mouths later. It is clear that the board there
felt thaC the grievor should be accorded,'an avenue through which
he could challenge the numerous allegations made. against him.
In the Notre Dame award, the board,fouhd that a letter
from a district' superintendent to the grievor, a school
principal, which made two positive allegations of fact and
implied the absence of appropriate accounting procedures was a
warning for disciplinary purposes, lC placed emphasis on the
assertion that such lei'tar would be placed in the grievor's file
for "future reference", It.was also apparent to that board that
the employer intended to use the letter 'in any 'future proceedings
and that it' was designed to lay the foundation folk more severe
disciplinary measures. In our judgment., the same cannot be said
here of th, is employer's motivation and intent. The following
comment is found at page 288 of'the No~re Dame award:
"A number o'f arbitrators have found that a~ .-
expression of employer disapproval or dissatisfaction
may not coustltute a disciplinary warning when the,
employer has categorically affirmed that the
document recording the disapproval or' dissatisfaction
will not be used in subsequent action against the
employee or when the employee will not be prejudiced
by i't in respect of any future proceedings ~f a
disclpllnary nature." .'
This is consistent with the opinion of the learned authors of
Canadian Labour Arbitration, Brown and ~eatty,-'third edit[on,
wherein at page 7-137 they· state:
"Conversely, where it is apparent that' a notation
or letter is not intended to be disciplinary, was
not written by anyone exercising the requisite
authority on behalf of ~he employer, or where the
written warning: forms no part of the employee's
record for the purposes of determining the severi-ty
of future discipline, does not involve a change in
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status or a monetary loss, merely indicates vhat
disciplinary or other action might be taken iu the
future, .or is directed to an employee's 'record of
innocent absenteeism,'arbi~ra~ors have ruled'~hat
such notations are not disciplinary i.n nature..
this basis, most, though not all, arbitrators have
concluded, that annual or ad hoc' performance
appraisals and-evaluations .~h£ch involve critical
assessments of. an employee's -work performance,
wilt not, vithout more, take ou the character of
disciplinary sanctions."
We ~ind that both of these comments are applicable to this
.grievance. Our ultimate conclusion the'refore is that the memo
given to ~r. Bacchus and placed on his file, is not
in nature. ~e consequently'agree ~i~h the position of the
employer that the matter, is inarbitrable., The grievance
therefore dismissed. Yu this instance; the union did not argue
that the memo constituted an appraisal for .purposes of sectio'n
18(~)(b) Of the Cro~n Employees Collective BarEaiuiug Act.
~ould appear.to us that such an argument is foreclosed by V. irtue
o£ .the logic expresse~ by ehls board in Cloue~er, ci£ed above.
Dated at .~indsor, Ontario, 'this 19th day. of April , 1989.
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