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HomeMy WebLinkAbout1988-1309.Singh.89-07-27 · ONTARIO EMPLOY£S-DE LA COURONNE '~ ' ~ ; ' CROWN EMPLOYEES DE L'ONTARIO · GRIEVANCE C,OMMISSlON DE SETTLEMENT REGLEMENT BOARD DES GRIEFS 1SO DUNDAS STREET WEST, TORONTO, ONTARIO, M6G 1Z8- sUITE 2100 TELEPHONE/T~L~-PHONE 180, RUE DUNDAS OUEST, TORONTO, (ONTARIO,} MSG 1Z$ - BUREAU 2100 (416} 598-0688 1309/88 IN THE MATTER OF AN ARBITRATION under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD Between: OPSEU (P. Singh) Grievor - and - ~ The Crown in Right of Ontario (Ministry of Transportation) Employer Before: N.V. Dissanayake Vice-Chairperson S. Hennessy Member H. Roberts Member For the Grievor: R. Ross Wells Counsel Gowling, Strathy & Henderson Barristers & Solicitors For the Employe~: M. Failes Counsel Winkler, Filion & wakely Barristers & Solicitors Hearing: May 4, 1989 AWARD This grievance reads: I grieve that the employer has re-imposed a previously withdrawn disciplinary memo by making reference to it in a memo dated 1988 - 11 - 09. The relief requested is: that the memo dated 1988 - 11 - 09 be rescinded and removed from all files. The evidence indicates that the griever has had attendance problems for some time due to health reasons. The Employer issued the following memorandum to the griever on March 30, 1988: RE: Attendance This will acknowledge receipt of a statement from your physician dated 88-03-22, stating that you are · it for work, and that you are able to maintain regular attendance. I am plea. sec to learn that the health problems you experienced previously have cleared up, and that yOU will be able to attend to all of your duties on a regular basis. As we do for' all of our employees, we will continue to monitor your attendance record, and I caution you that should you be unable to maintain regular attendance, a review of your situation will be carried out, which may lead to your im'mediate termination by the Ministry for excessive absenteeism. This memorandum was grieved as being "an unjust disciplinary warning memo" A£te~ the second stage meeting o'f the grievance procedure the grievance was settled, with 3 the Minister's designee confirming by letter to the grievor dated May 2, 1988, that the ~emorandum "has been removed from your file" On November 4, 1988, a further attendance review meeting was held between the Management and the grievor, who was accompanied by a union representative. The Employer witnesses recalled that during this meeting specific reference was made to the Memorandum of March 30, 1988. On the contrary, the grievor and the union representative testified that no such reference was made. For our purposes, it is not necessary to resolve this apparent conflict in the evidence. The Board is satisfied that, if the memorandum itself was not referred to during the meeting, the gist of its content including the fact that continuing attendance problems will put the grievor's employment in jeopardy, was the subject of discussion at the meeting on November 4, 1988. Following the meeting, the Employer issued the following memorandum dated November 9, 1988 to the grievor: RE: Attendance Review An Attendance Review Meeting was held in Boardroom "B" at 5000 Yonge St. on 88-11-04 at 10:30 a.m. it was indicated that your attendance from January/88 to July/88 was good but that from August/88 to October/88 you had been away sick quite a bit. ~ 4 January - July 2.5 days off August - October 15.1 days off TOTAL 17.6 days Off I strongly emphasize tho need for regular attendance and refer you to P. Martin's memo of 88-03-30. A copy of the memo is attached. It is the reference in the last paragraph of this memorandum, to the memorandum of March 30, 1988 that is being objected to by the griever. The Employer raised a preliminary objection to the Board's jurisdiction to hear this grievance on the basis that the memorandum being challenged does not. constitute discipline, but is simply a confirmation of the review of the griever's attendance record that took place at the meeting, and notification to the griever that failure to improve will result in termination of his employment The Employer . concedes that the memorandum of March 30, 1988, was removed from the grievor'~ file pursuant to the settlement of the previous grievance. The evidence is that while the Minister's designee's letter to the grievor'was copied to his supervisor, 'the latter did not read it carefully. As a result, at the time the Memorandum of November 9, 1988 was drawn up, the supervisor was not aware that the prior memorandum had been removed from the griever's files ah part of a settlement. 5 Nevertheless, Counsel for the Employer submits that the reference was made solely with the intention of communicating to the grievor that failure to regularly attend work may result in his dismissal. Instead of spelling that out again in the second memorandum, the grievor was referred to the i~formation contained in the previous memorandum~ The Counsel' for the grievor on the contrary submits that the memorandum is a disciplinary warning and that therefore, this Board has jurisdiction to hear the grievance relating to it. This Board has held on many prior occasions that even where the conduct involved may be culpable, a mere communication by the Employer to an employee expressing dissatisfaction with or disapproval of the conduct and counselling the grievor on the need for improvement will not " constitute discipline, unless it can be used in subsequent disciplin~r~ action to the detriment oX the grievor. See, Naik 108/77 (Swinton); Zuibrycki, 425/81; Sundberc, 1998/86 (Devlin), In Nai;: the letter issued to the grievor read in part: 'I wish to advise you that any further outbursts Of this nature will not be tolerated in this office and I can assure you that if it does the necessary action will be taken against you ....... Please be guided accordingly." In concluding that the letter was not a disciplinary warning ~he Board stated: 6 " ..... , 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 characterised as disciplinary action. To conclude otherwise would be to allow an employee to grieve any communication which he believed to be unfounded, with unfortunate results for the grievance procedure and for the employer trying, to give guidance to an employee without engaging in formal disciplinary action." Here, the impugned memorandum does not refer to any culpable conduct on the part of the grievor. The reference is to health related absences. It is now firmly established in arbitral jurisprudence that innocent absenteeism is not a matter of discipline. See, Brown and Beatty, Canadian Labour Arbitration (3rd Ed.) Section 7:3200 and the awards cited therein. As the arbitrator in De Hawilland Aircraft of Canada ? Ltd., (1964), 15 L.A.C. 41 (Laskin), stated, "In such cases it is not a question of punishing an employee for any fault, or negligent or deliberate dereliction of duty, but rather of finding that he is unable to meet the reasonable expectations of continuous availability for work" Nevertheless, the Employer has not been left without remedy where an employee, through no fault of h~s, is unable to avail himself for work on a regular basis. The E~.:ployer may terminate employment provided i5 can be established that the absenteeism is excessive and that the prognosis .~ for ~uture attendance is poor. 7 Over the years, this Board has routinely adopted and applied the doctrine of innocent absenteeism as developed in the. private sector arbitral jurisprudence. In Richardson, 517/81 (Barton) at pp. 9-11, the Board made the following observation: The "arbitral jurisprudence" if I may. Call it that concerning innocent or blameless absenteeism in the private sector has been accepted by this Board in such cases as Stewar~ 27/76, Temple 12/76, Moss 62/76, and others. Such private sector cases as Re Victoria Hospital (Weatherill 1979) 2~ LAC 2nd 172, Re United Automobile Workers and Massey~ Ferguson Ltd. (Shime 1972) 24 LAC 3-44, have been accepted by this Board. These cases and others establish the proposition that in certain serious situations excessive absenteeism may warrant termination of the employment relationship. Such termination is on the basis that the employee is not able to satisfy his side of the bargain to come to work on m regular basis. It is quite clear that such dismissal is not discipline in the sense of a dismissal for blameworthy conduct, rather it primarily.because the interests of the employer arq substantially impaired by such absenteeism. (Emphasis added) In Cardone, 783/84 (Samuels) the Board stated: The critical point is that the employee is unable to work. The employer in these circumstances is entitled to terminate the employment. This is not a disciplinary matter. It is not a question of fault. The grievor is not being punished for his misfortune. But due to the employee's inability to continue working on a regular basis, the employment relationship can be terminated. The Board's jurisdiction to hqar this grievance depends whether the memorandum of Nov~mb~r 9, 198~, can properly 8 be characterized as a disciplinary warning as claimed by the grievor. While recognizing that this Board has ~enerally accepted the basic principle that innocent absenteeism is not a matter of discipline, counsel for the grievor made a novel legal argument, in an attempt to convince us that in the Ontario Government Service, at least in certain circumstances, innocent absenteeism should be regarded as a matter of discipline. ~ Counsel's submission is based on Section 18 (3) of .Regulation 881 under the Public Service Act, which states: ~i~!' I8 (3) Where a public servant, C (a) habitually fails to comply with attendance · .~ regulations or directives~ (b) absents himself without permission during his prescribed hours of duty; : ~' (c) reports for duty while incapable of ~:~ performing his duties; (d) misuses government property or uses government property or services for purposes other than government business; or (e) fails to obey the instructions of his superior, and where, in the opinion of his deputy minister, the circumstances do not amount to cause for removal - from employment or dismissal under section 22 of the Act, the deputy minister, o~: an official of his ~:-~ ministry who is authorized by him, may after a hea~ing, impose a fine equal to not .?.ore than five days pay. 9 Counsel draws our attention to the title under which sectio~ 18 appears, "Offences and Penalties" The "offence" set out in ss. 3(a) is "habitually fails to comply with attendance regulations or directives" For that offence a "penalty" of a monetary fine or dismissal from the public service may be imposed. .From the tenor of this terminology, counsel urges us to conclude that section 18(3) treats irregular attendance, including innocent absenteeism, as a matter of discipline. Counsel for the Employer submits that ': section 18(3) does not have that effect and contends that in any event section 18(3) is irrelevant for this proceeding " because it pertains to a procedure for dealing with non-' bargaining unit employees and therefore is totally irrelevant for purposes of this proceeding. In our considered opinion, this issue can be decided on a very narrow basis. Assuming, without finding, that the provision applies to a situation where, ks here, the employment relationship is governed by a collective agreement, in our view, section 18(3) (a) does not include instances of innocent absenteeism. That provision speaks of a failure to comply with a regulation or directive. By its very nature, innocent absenteeism is devoid of any fault on the part of the g:.-ievor. The most common situatior~ is where a gricvor i.s prevented from attending work becaqse of recurring or chronic illness, in th~s circun.stanc~ it would be absurd for an 10 employer to issue a directive to the employee that he attend work, and expect compliance. The provision permits fines for failure to comply with the enumerated sub-sections including section 18'(3) (a). It is inconceivable that the legislature intended to permit the Employer to punish an employee by monetary fines, for failure to regularly attend work because of health problems which are completely beyond his control. In our view, section 18(3) (a) does not refer to situations of innocent or' blameless absences. Since the subject of the memorandum of November 9, 1988, ' ' as well as of the earlier memorandum, was a non-disciplinary matter, neither could be considered to be disciplinary action. ';?' ~ The memoranda in question are in the nature of a notice of the Employer's concerns about the grievor's inability to attend .~ ~? work on a regular basis. In our view, the Employer is entitled, and indeed may be obligated, to apprise the grievor of those concerns and of the consequences which may follow if the attendance does not improve. The purpose of the reference to the pri'or memo must also ' be kept in context. The Employer was not relying on the earl~er memorandum to the detriment of the grievor. The reference was ~oz infc~r::.atlor .... purpos~s ,:~n]y. ~h6. re~erred to tt~ .in~erm~Lion co~t,~i, nyd ~'~ :l~e prior II condone the Empioyer's action. It was improper for the Employer to have made a reference to a memorandum, which ~or all intents and purposes no longer existed. The fact that the grievor's supervisor, despite being copied the letter of settlement, was unaware that the memorandum had been removed from the record simply demonstrates sloppy management. However, that.impropriety does not confer on this Board any jurisdiction that it does not otherwise have. For all of the above reasons, it is our conclusion that the Board has no jurisdiction to hear this grievance and the same is hereby dismissed. Dated this ?.7th day of July, 1989 at Hamilton, Ontario Ni.~al V. Dissanayake Vice-Chairperson Y~ember H. Eob~;r t.s