HomeMy WebLinkAbout1989-0375.Juneau.89-12-18~" ' " " ..... ~, ~' '" ONTARIO EMPL OY~$ DE LA ~OURONNE
~ ,." "." %/". !., CROWNEMPLOYEES DEL'ONTARiO
'- GRIEVANCE C,OMMISSION DE
SE'FI'LEMENT REGLEMENT
BOARD DES GRIEFS
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375~/89
IN THE I~TTER OF ~ ~BITRATION
Under ~
THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT
Before
THE GRIEVANCE SETTLEMENT BOARD
Between=
OPSEU (Juneau)
Grievor
- and -
The Crown in Right of Ontario (Ministry of Health)
Employer
Before:
R.J. Roberts Vice-Chairperson
W. Shipman Member
D. Clark Member
For the Grievor: M. Bevan
Grievance Officer
Ontario Public Service
Employees Union
.For the Employer: S. McDermott
Counsel
Hicks Morley Hamilton
Stewart Storie
Barristers & Solicitors
Hearing: October 6, 1989
AWARD
This is a discipline case. The grievor recefved written
warning for leaving his work area witkout permiss±on. Fcr reasons
which follow, the grievance is allowed in Dart and the written
warning is reduced to a verbal warning.
The grievor was a Cleaner 2 at the Oak Ridge Division of the
Mental Health Centre in Penetang. He worked as a General Cleaner
at this facility, meaning that he was not assigned to a specifi'c
ward on a regular basis and could be involved in working on
particular projects undertaken by the Housekeeping Department.
The Department had a number of policies and procedures which
were published in a manual. Copies of the manual were kept in
areas'which were accessible {o all emptoyee~. Among these policies.
was policy No. 24, which read, in pertinent Dart, as' follows:
Re: Leaving assigned work'area while On duty' (other than
during assigned breaks).
Reason for Policy:
To ensure Housekeeping & Linea Service staff perform and
complete their assigned tasks efficiently.
Policy:
Housekeeping & Linen Service staff are not to leave Their
assigned work areas for any reason without permission'
from Supervisory staff.
Permission can be obtained by contacting Housekeeping
office or paging the appropriate Supervisor.
Failure to comply with this policy will. resutt in
disciplinary action being taken.
Intended Res'ults:
To enable Supervisory staff to locate employees when
necessary.
To. eliminate time loss due to unnecessary and/or
unwarranted absence from work area.
To ensure the time allotted to each work area is
accounted for.
Attached to the compilation of policies was a signature sheet which
the griever signed on April 19, 1988. At the tod of this signature
sheet was the statement, "I have read, understood and will comply
with the attached policies and realize that disciplinary action
will be taken if any of these policies are not complied with."
The g~ievor's immediate Supervisor, Ms. B. Desjardins.
testified that she discussed policy %24 with the grievor, and~ in
fact, on Wednesday, November 30, 1988, she held a meeting with 'all
employees under her supervision, including the Grievor, in which
she reminded them that they were not to leave their work areas
without permission. The minutes of this meeting which were
prepared by Mrs. Desjardins sta~ed, in pertinent part, "The staff
were also informed about leaving .their work areas without
permission. One of them stated they could not reach me... I
reminded them that I do carry pager #37 and that I can be reached
at any time no matter where I was in the facility."
3
Ms. Desjardins also testified that on several occasions
proceeding the incident which gave rise to the discipline at hand
she verbally warned the grievor regardinG breaches of policy #24
and other policies. Over the objection of the Union there were
admitted into evidence three memoranda which. Ms, Desjardins had
written, recording her version of' the events leading tc the
warnings. These memoranda were never shown to the grievor no~ were
they made a part of his personnel file. Rather, they were kept in
a separate supervisor'$ file retained by Ms.LDesjardins. The only
other person to see these was Ms. Desjardins' own Supervisor, ~.~r.
J. Topping.
Ms. Desjardins testified than she kept these memoranda for
purposes o~ reference in preparing the performance appraisals
her employees. It seems from her testimony and also the
of another Supervisor, Ms. P. Laurin, that the evaluation would
make any specific reference to the so-called warnings which
recorded It would simply form the basis for a commen~
"There have been problems with your performance in the pas~,
recently you have shown improvement." ~he actual memoranda
only be revealed to the employee if he or she should challenge ~he
assessment during the interview.
Mr. Topping, t.he Director of Housekeeping & Linen Services,
testified that he regarded these memoranda as records of vsrbal
warnings which were given to the grievor prior to the inciden~
leading to the present arbitration. He agreed that ~ordinarily,
leaving the work area without permission would result in a verbal
warning. However, he added~ because of the three previous verbal
warnings which the grievor had received, he stepped the discipline
for this incident up to a written warning.
In his testimony, the grievor asserted that he did not know
that the three prior incidents recorded by Ms. Desjardins were
regarded as verbal warnings in a disciplinary sense. ,He said that
in each case, he felt that he had explained himself satisfactoriZy
to his supervisor and could not recall any mention of ~n entry
being made in his disciplinary record. Referring ~o tk~
description of the incidents which were set forth in ~-[s.
DeSjard~ns' memoranda, the grievor added that he did not agree wirk
his supervisor's description of what happened. He said-~ha~ if khd
known that these versions of events were to form part cf his
disciplinary record, he would have grieved them.
As to the incident leading to the written warning which i~ the
subject of the present arbitration, the grievor stated that $~
March 30, 1989, he left his work area to get a supply of mops for
a co-workers, Ms. Millie Quesnell. The latter advised him, he
said, to telephone Ms. Desjardins before leaving the wo'rk area;
however, he added, when Ms. Desjardins did not answer the ~eiephone
in her office he decided to Get the mops without permission. As
he passed through the vistors' complex on the way to the Storeroom,
5
he ran into Ms. Desjardins. When he did so, he put his hand up and
asked for permission to get supplies.
The grievor also testified that there was confusion among
staff as to management's intent to apply strictly its policy
against leaving a work area without permission. He added that he
could not recall being at a meeting where Ms. Desjardins explained..
that policy ~24 was going to be strictly enforced and alluded to
one such meeting which was apparently held in his absence. Prior
to a procedural change which occurred on March 16, 1989, the
grievor said, it was his practice to go about getting supplies as
needed Without obtaining permission from his supervisor. He added
that on such occasions, he was often observed by supervision and
nothing was said.
The grievor's co-worker Ms. Q~esnell, also testified. She
said.that she first became aware that she was not supDo'sed to leave
her work area to get supplies on April 17, 1989, which was shortly
after the grievor received his written warning. Frior to that, Ms.
Quesnell said, she never heard anything directly from supervision
about it. She had heard rumours among the staff, but that was all'.
Considering all of the evidence, we must conclude that there.
was cause to discipline the grievor for leaving his work area
without permission to get supplies. There is strong evidence the%
on November 30, 1988, the grievor was Part' of a group of employees
6
who were informed in a meeting with Ms. Desjardins that. they were
not to leave their work areas without permission. At that time,
Ms'. DeSjardin reminded them that even if her telephone went
unanswered, she could be reached by pager no matter where she was
in the facility. The evidence left little doubt that this message
was understood by both the gr~evor and Ms'. Quesnell. According to
the grievor's own testimony, Ms. Quesnell.advised him to call Ms.
Desjardins and obtain permission before leaving the work area. The
grievor even attempted to do So, although for some reason, he did
not attempt to contact Ms. 'Desjardins by pager. The grievor's
appreciation of this requirement was further emphasized in his
testimony that when he cam~ upon Ms. Desjardins during'his journey
to the Supply Room, the grievor immediately put up his hand and
requested permission. By then of course, it was too late because
he Was already out of his work area.
While we have found that there was cause to discipline,
however, we cannot sustain the writ%en warning which was imposed
upon· the grievor. In good conscience, it is impossible to regard
as valid evidence of prior ungrieved discipline the·three memoranda
which Ms. Desjardins maintained in her private supervis0r's file.
If the employer intended to rely upon the prior incidents' for
purposes of progressive discipline, notations should have been made
upon the grievor's disciplinary record indicating that verbal
warnings, in a disciplinary sense, had been administered'. This
file would have been open to the grievor and the Union, thereby
7
enabling the supervisor's version of events properly to be.tested
through the grievance procedure. Because this was not done, the
prior incidents must be regarded as unavailable for purposes of
progress'ire discipline.
It follows from the foregoing conclusion, that the discipline
herein must-be reduced to a verbal warning. Mr. Topping testified
that but for the three Previous "warnings" this would have been the
penalty assessed against the grievor.. Since, as we have found, the
latter incidents could not be relied, upon for purposes of
progressive discipline, the penalty imposed dpon the grievor.must
be reduced to a verbal warning. Accordingly, the grievance is
allowed to this extent.
DATED at London, Ontario, this ]8th day of December,
1989 .
R. ~. Roberts, Vice-'Chair
W. Shipma~ ~?Membe r
~ ' (~Addendum
D. Clark, Member attached)
ADDENDUM
375/89 OPSEU (Juneau) - Ministry of Health
I must concur ~ith this award. The reason for this addenduTM
is to emphasize that except for one flaw in the process,
the Employer correctly followed the necessary procedures for
administering constructive discipline.
Policy #24 was a reasonable policy. It enabled the
Supervisory staff to 'locate employees, eliminated time loss
due.to unnecessary and/or unwarranted absence from the work
area and ensured time allotted to each work area was
accounted for. The .g~rievor had signed the signature sheet
on April 19, 1988 indicating that he was aware of,
understood and would comply with the policies and that
failure to comply would result in disciplinary action°
The Supervisor~testified she had discussed Policy #Z4 with
the grievor and, as indicated on pages $ - S of this award,
there was strong evidence to indicate that the grievor was
present at the staff meeting of November 30, 1988 when the
Supervisor reminded the employees not to leave their 'work
areas without permission. There was little doubt that this
message was understood b~ the grievor.
The Supervisor also testified th'at she had given the grievor
three verbal warnings (July'8, 1988, September Z3, 1988 and
March Zg, 1989) for various policy infractions. In two of
the three memoranda she prepared describing the events in
question, she wrote "I made him aware that this is a verbal
warning" and "I told him this is a verbal warning". In the
third document she indicated that she had made it very clear
to him that he was to telephone her when confronted with
similar situations in the future.
I am at a loss to understand why the grievor would not
perceive the three incidents in question as verbal warnings.
The only flaw in the process was the failure %o put
notations in the' employee's personnel file indicating
that verbal warnings had, in fact, been administered. Had
this been done and had the Supervisor's version of events
been upheld, the incident of March 30, 1989 would most
certainly have been the culminating incident thereby
3ustifying the written reprimand.
Don M. Clark, Member