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HomeMy WebLinkAbout1989-1826.Alexis.91-05-27 ONTA RiO EMPL OYES DE LA COURONNE CROWN EM,eL 0 YEE$ DE L 'ON TA RfO GRIEVANCE C,OMMISSlON DE SETTLEMENT REGLEMENT BOARD '""" ""'""" 180 DUNDAS STRE~ WEST, S~TE21~, TORONTO, ONTAR~. MSG 1Z$ TE~ONE/~L~HONE: (4~6) ~6-138~ 180, RUE DUNDAS OUES% BUREAU 2100, TORONTO (ONTAR~). MSG IZ8 FAC~iMILE/~COP/E : (416) 325-]39E 1826/89 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT THE GRIEVANCE SETTLEMENT BOARD BETWEEN "' -~; OPSEU (Alexis) , G~ievor (Ministry of Education) Employer BEFORe: R.J. Roberts Vice-Chairperson - · F. Taylo~ Member D. Daugharty Member FOR THE R. Wells GRI EVOR Couns e 1 Gowling, Strathy & Henderson Barristers & Solicitors FOR THE C. Kay-Aggio EMPLOYER Counsel Storie Barristers & Solicitors HEARING: September 18, 1990 AWARD In the grievance leading to this arbitration, the grievor claimed that he was given a disciplinary letter dated December 1, 19 ~, which was "inaccurate, unreasonable and unwarranted." He requested, inter alia, that the letter be removed from his personnel file. For reasons which follow% the grievance is dismissed. ~ According to the evidence, the grievor worked as a Mail Sorter at the McDonald Block mail room of the Ministry of Education. He was under the day-to-day direction of a Lead Hand, Mr. H. Cole. Mr. Cole reported to Mr. S. Nodilo, %he Supervisor of the stores area. Mr. Nodilo reported to Mr. W. Redekop, the Manager of Purchasing, Supply and~Distribution of the Ministry of Education. On December 1, 1989, Mr. Redekop issued the following written reprimand to the grievor: To: Anthony Alexis Mail and Messenger Clerk Administrative Services Branch From: Waldo A. Redekop Date: December 1, 1989 Subject: Staff Harassment On four previous occasions, Steve Nodilo and myself have had discussions with you concerning complaints from your fellow workers about your conduct. The staff all felt 'that you were harassing them and asked if it could be stopped. During these discussions, you stated that you had not intended to harass them, but that since the staff were interpreting your actions and comments as such, you would change your action~ so that they would not be able to complain further about you. These actions all took place over the last year. They involved complaints from Frances Somerville (on two occasions), Mary Byrne and Charles Chan. In all instances, .you stated that it would not happen again. On TueSday, November 28, 1989, I ~eceived a call from Douglas Clare complaining to me that he felt that you were harassing.him during his lunch~hour by the'comments that you were making. He was quite upset by it. I requested that Steve Nodilo discuss the matter with you which he did. You again apologized to Mr. Nodilo for your'actions and stated ~that you would try not to have this happen again. Since we have given you oral reprimands on four Previous .,occasions'and'we ,have now received a fifth complaint about the same behaviour on your part, this letter is a .written reprimand,'for your actions, in harassing the staff. The actions are to cease'immediately, Failure to cease, these actions will lead to further disciplinary measures up to and including dismissal. (signed} W. A. RedekoD Manager Purchasing, Supply & Distribution Administrative'Services Branch The letter indicated that the written reprimand was being issued because oral reprimands on four previous occasions for'harassment of fellow workers~ had failed to induce ~he grievor to correct his conduct. The incident which led to this discipline involved a Truck Driver for the Ministry, Mr. D. Clare. Mr. Clare testified that as part of his duties, he had to go to the sub-basement of the McDonald Block three times in the morning and three times in the 3 afternoon in order to pick uD mail. Essentially, this involved bringing a cartload of mail into the building and taking a cartload out. Although the time spent doing this varied according to the load, Mr. Clare said, it took about 15 minutes each time. His frequent visits to the McDonald Block placed him in contact with the grievor, who was a Mail Clerk in this location. In addition, Mr. Clare testified, he ate his lunch in the lunchroom which was also utilized by the Mail Clerks, including the grievor. For some reason, Mr. Clare testified, a considerable time prior to the incident in question the grievor decided that he was a good target for harassment. The harassment took many forms, he stated, including pushing the mail cart into him; attempting to trip him by sticking a stick between his legs; coughing over his soup in the lunchroom; throwing his crackers into the garbage; threatening to beat him up; and deriding Mr. Clare's father whom ........... d~=d an alcoholic. The harassment was the gri~vur ~x~w uo have constant, Mr. Clare said, and he often complained about it Mr. Nodilo. Mr. Nodilo's response he said', was that he had sDoken to the grievor on four to five different occasions and the grievor had agreed to stop engaging in this kind of behaviour. Despite this, Mr. Clare said, nothing changed. Finally, on November 28th, the grievor's harassment, Mr. Clare said, "sent him over the edge." Apparently, the grievor started in again on Mr. Clare's father's alcoholism and began to ~aunt him saying that his father deserved to die. ~ Mr. Clare's nerves began to break down. He l°st his composure to such a degree that it seemed to'those around him to requi~'e an · emergency telephone call to Mr. Redekop. , Mr 'Redekop left meeting, and went to see Mr. Clare. Mr. RedekoD testified' that when he got ,there Mr. Clare ~as very distraught. He kept repeating 6ver and over ag&in that he could.not take it any more. Mr. Clare's poor state of mind, Mr. RedekoD stated, made him unfit to drive, and, in fact, Mr. Clare not only-went'hom~' early that day but remained-away for. another two days. Mr. Redekop further testified that after interviewing Mr. Clare, he instructed Mr' Nodilo to discuss' the matter'with the grievor. After Mr.' Nodilo ~reDorted back to him, he 'said, he · discussed the next step with his own Supervisor, Mr. Glendenning, and it was decided that a letter of reprimand was appropriate, not only to put something in writing in the grievor's personnel file but also formally to put the grievor on notice that the 'Ministry would not toleratethis behaviour. In this regard, I note that the letter indicated that if the grievor did not cease harassing co- workers his behaviour would lead to further discipline up to and including dismissal. The grievor was not called to testify. In fact, the Union 5 declined to call any witnesses and the matter proceeded to argument. In argument, the submissions of the Union did not focus upon the merits of the discipline but rather upon the failure of the Ministr~ to call Mr. Nodilo, the only person who interviewed both ' the grievor and Mr. Clare. As a result, it was submitted, the Board was left without any direct evidence as to precisely what the conduct was which caused the discipline.to be issued. We cs,not accept this submission. The letter of discipline indicated that the incident which caused the discipline to be issued was harassment of Mr. Clare during his lunch hour by making upsetting comments to him. Mr. Clare was called to testify as to the nature' of those comments. This evidence was sufficient to establish a ~rima facie case for discipline, and so shifted the burden of producing evidence to the grievor should he have wished to contest the version of the facts presented by the Ministry. This does not mean that the ultimate onus, or burden, of proving the case shifted in any way to the grievor. In any case, the burden of proof is comprised of two elements: (1) the burden of producing evidence; and, (2) the burden of persuasion, i.e., the burden of Dersuadin~ the decision-maker to resolve in the litigant's favour the questions of law and fact which are in issue. 6 The latte~ burden never shifts. It remains with the person who has the affirmative of the question,' in this case the Ministry. The former burden, however, i.e., the burden of producing evidence, does shift~. If the Party with the burden of' persuasion leads sufficient eviaence to establish a prima facie case -- evidence, which if taken at face value would establish .all of the elements of the party's case -- then the burden of producing evidence shifts to the other Dart~, which must lead evidence sufficient to cast'into doubt some of the factual underpinnings of the case-in-chief.. Here,. there certainly was enough evidence adduced by the Ministry to support, its case on cause for discipline and cause for severity Of the discipline. The uncontradicted evidence showed that having been"warned on numerous occasions that his conduct had to change, the grievor, once again harassed a co-worker, Mr. Clare. The consequences to .Mr. Cla~e were severe. There were also consequences to the efficiency of the operation of the Ministry's Mail Room, in that Hr. Clare had to go home early and remain off work for another two days. With this evidence, the Ministry demonstrated that it was more than justified in deciding that not only discipline was appropriate but that the- next step in progressive discipline had to be taken in order to bring home to .the grievor the unacceptabilit~ of his deplorable conduct. See Klonowski and Ministry of__Correctional Services (1982), G.S.B. #557/81 (Roberts); Re Brewers Warehousin~ Co. Ltd. and United Brewers Warehousing Workers' Provincial Board (1982), 6 L.A.C. (3d) 7 104 (Egan); and, Re Colguhoun and Ministry of Revenue (1984), G.S.B. 129/84 (Jolliffe]. Given that the grievor declined to counter this evidence with evidence of his own, we feel confident in finding the facts to be as established in the case for the Ministry. The grievance is dismissed. DATED at London, Ontario, this 2?th day of March · Vice Chaarperson F. TaYlor, -