HomeMy WebLinkAbout1992-2617.Gibson&Patterson.95-08-08
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1111 GRIEVANCE I? ,{J.r'.)..
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- . . SETTLEMENT REGLEMENT SC (.1 j'
BOARD DES GRIEFS l>1?~\ \,l!rJ-
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ISO DUNDAS STREET WEST SUITE 2100, TORONTO, ONTARIO, MSG rZs TELEPHONE/TELEPHONE f476) 326-73S8
rso, RUE DUNDAS OUEST BUREAU 2roo, TORONTO (ONTARIO). M5G lZ8 FACSIMILE ITELECOPIE (4r6) 326-7396
GSB # 2617/92, 2618/92
OPSEU # 920663, 920664
IN THE MATTER OF AN ARBITRATION
Under
THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT
Before
THE GRIEVANCE SETTLEMENT BOARD
BETWEEN
OPSEU (Gibson/Patterson)
TJ II Grievor
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The Crown in Right of Ontario
(Ministry of Community & Social Services)
Employer
BEFORE: R J Roberts Vice-Chairperson
S Urbain Member
0 Montrose Member
FOR THE P Munt-Madill, 0 Wright
GRIEVOR Counsel
Ryder, Wright, Blair & Doyle
Barristers & Solicitors
FOR THE L. Marvy
EMPLOYER Counsel
Legal Services Branch
Management Board Secretariat
HEARING February 8, 1994
January 17, 1995
February 16, 1995
May 5, 1995
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AWARD
This is a somewhat unusual case. The two gnevors claimed that they were unjustly
dIsciplIned because the Employer assigned to them a dIsproportionately high work load They
suspected, inter alia, that the Employer made this assignment in retaliation for the activist role
they played in opposing on behalf of the Union a new model of service that the Employer was
attempting to implement. Thegrievors further suspected that they were singled-out by the
Employer because they both had chronic illnesses which resulted in a consIderable degree of
absence over the penod of time in question, thereby causing a degree of resentment on the part
of co-workers who were required to perform certain aspects of the grievors' jobs as well as their
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The Employer dId not dispute the claim of the grievors that over a period of time, their
work loads were higher than those of other employees. In the submission of the Employer,
however, the assignment of these dIsproportionately lugh work loads was not motivated by any
disciplmary intent as the grievors had suspected, rather, the assignment resulted from an
unfortunate degree of mertia on the part of the grievors' supervisor in responding to their
requests for reduction m their work loads
In lIght of its positIon that the dIsproportionate work load assigned to the grievors was
not motivated by any disciplinary intent, the Employer made a preliminary objection to
jurisdiction but was content to delay requesting our decision upon Its objection until the
completion of the eVIdence from both partIes touching upon, Inter aha; the merits of the case. I!
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Upon consIdering this evidence and the submissions of the parties at the end of the heanng, we
have concluded that while the evidence was close regarding the motivation of the Employer, we
are nevertheless convmced to a sufficient degree of probability that the disproportionate work
load assignments to the grievors were not made With a disciplinary intent and as a result, did not
constitute discipline. In light of this findmg, we must allow the preliminary objection of the
Employer to the jurisdIction of this Board.
Most of the events leadmg to the grievances at hand took place in 1992. At that time,
both grievors were Income Mamtenance Officers (!MO's) in the Samia office of the Employer
According to the first grievor to testify, Ms. Patterson, there were three main categories of cases
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in each IMO's case load. (1) mother's allowance cases, (2) dIsabled cases,. and, (3) foster child
cases. It seemed to be common ground between the parties that the cases involving by far the
most work were mother's allowance cases. These potentially reqUired annual reports, earnings
reviews, assessment of the need~ of the children, e.g., dental work; and other such assessments,
etc. By contrast, cases involving single disabled clients were consldered very low aCllvity,
perhaps only requiring annual reports.
It also seemed to be a common ground between the parties that in the period March -
August, 1992, the work loads of the grievors were higher than those of other IMO's in the
I office, both in terms of total number of cases and in the relative proportion of family allowance
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I cases mvolving smgle mothers. Moreover, because both grievors had chronic illnesses which
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of work in their case loads whIch did not get performed during their absences. The policy of
the Employer at the time was not to replace absent employees but to rely upon their co-workers
to perform some basic functIons of the absent IMO's, leaving the rest for later Ms. Patterson
testified that she became ill with a rare chronic condition in May, 1991 This caused her to be
away from work from May to October, 1991 and from March to the middle of April, 1992
Ms. Gibson had suffered SInce 1989 with chronic fatigue syndrome and in the Spring of 1992,
was further diagnosed as having a chronic auto-immune disease. These ailments caused Ms.
Gibson to be absent from work for the entire month of November, 1989; for three and one-half
months in 1990; and for a further six months from August, 1991 to February 3, 1992
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There seems to be lIttle doubt that the extra burden that these absences cast upon the
grievors' co-workers caused a degree of resentment in the latter Ms. Patterson testified that
she felt overwhelmed by the backlog of work and gUIlty about her work not being done. Her
co-workers criticized her, she said, and others ganged up on her during meetings. Ms. Gibson
testified that upon her return to work in February, 1992, her caseload was an absolute disaster
During her absence, her co-workers had processed some of the mail that had come mto her
office but had done nothing with respect to her cases. As a result, her clIents had become
confused and angry She had six months of memos to sort through and numerous reports to
make out and process. Both grievors testified that they felt swamped and In need of relief from
their Supervisor, Mr Barry Redmond.
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Ms. Patterson testified that all of her attempts to obtain relief from Mr Redmond came
to naught. She stated that shortly after she returned to work on April 16, 1992 she approached
Mr Redmond to discuss the dIfficulty she was having with her workload and the insensitivity
of her co-workers. Mr Redmond replied that there was a staff meeting on May 11th and at that
meeting the need to be understanding would be discussed. The meeting, however, came and
went with no discussion of the issue. In June and thereafter, Ms. Patterson attempted to
schedule and reschedule several meetings WIth Mr Redmond to discuss her circumstances,
however, for one reason or another Mr Redmond kept putting her off Finally, toward the end
of December Ms. Patterson approached Mr Redmond in the copy room at the office and advised
him that she dig qot know how she was going to handle her backlog and workload She testified
that Mr Redmond appeared very disinterested and left the conversation telling her that she could
only handle one piece of paper at a time.
Ms. Gibson testlfied that she had much the same kmd of experience when she attempted
to obtain relief from Mr Redmond. Upon her return to work in February, 1992, she said, Mr
Redmond met WIth her and advised her that while her case load was higher than most of her co-
workers' it would be taken care of In the course of that meeting, Ms. Gibson said, she made
Mr Redmond aware of her backlog Once again, however, months passed by and despite
repeated efforts by Ms Gibson, nothing was done. -
For example, in February, 1992, Ms. Gibson requested that her office day be changed
from Monday to Tuesday so that her office day would not comcide with a Monday on which she
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might have to issue replacement cheques to clients who did not receive them on the preceding
Friday Despite the minor nature of this request, her office day was not changed.
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Thereafter, at least once a month leading up to September, 1992, Ms. Gibson would
discuss with Mr Redmond lowering her case load to the level of her heafthy co-workers'
Despite hIS repeated promises to do so, nothing was done.
In early June, 1992, Ms. Gibson even took the unusual step of prepanng on her own a
case load transfer form, transferring 40 to 45 cases to a co-worker who did not object to taking
them over She brought the form to Mr Redmond and he accepted It; however, once again,
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notlung was done.
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Upon cross-exanunatlOn, Ms. Gibson testlfied that she was surpnsed that Mr Redmond
never responded by giving her the help that she needed She said that she regarded Mr
Redmond as a friend and liked hIm as a person, y.et not only did he never do anything to help I
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her but he never gave her' any reason for his apparent inertia. Both Ms. Gibson and Ms. I
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Patterson suspected that Mr Redmond's inertIa was motlvated by at least two factors. (1) their !
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ardent Union actiVIsm, which had led them to champion the establishment of a local Employee i
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Relations Committee (ERe) over the objection of local management and, in accordance wIth a ,
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positlOn taken by the Umon, led them to spearhead resistance to Implementation of the new
model of service, and, (2) possible resentment over the disruptIon In operatlon caused by the
grievors' absences due to their respective chronic illnesses. In 1989 to 1990, Ms. Gibson was
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the Unit Steward for the Union in the Sarnia Office. Ms. Patterson took over as Umt Steward
in December, 1990 Both gnevors testified that after becommg involved with the Umon they
became very vocal supporters of the Union pm,ItIon on varIOUS issues and continued to
participate in this manner up to an including the date of filIng of theIr grievances.
There were some grounds for these SuspiCIOns, partIcularly with respect to the gnevors'
spearheading of resistance to implementation of the new model of service. The evidence
indicated that in a regular staff meeting WIth Income MaIntenance Officers on October 21, 1991,
Mr Redmond indicated that the new model of service, which was to shift the focus of the
Employer from income maintenance to providing training, education, etc. to assist clients in
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becoming self-sufficient, would require changes in case loads to wait until after the new model
of service was developed. According to the evidence, this delay in changmg case loads was
necessitated by the fact that under the new model of service, the mixed case loads that the IMO's
carried at the moment were to be rearranged to accommodate this more specialized focus. It
seemed more efficient to delay making any changes In case loads In the intenm
As it was, It seems that at least in part the resistance led by the grievors delayed
implementation of the new model of service from April, 1992 to October, 1992 This was a
considerable time after other offices in the region had implemented it.
Ms. Patterson testified that in line WIth her resistance to the implementatIOn of the new
model of service, she sought to have the issue dIscussed at numerous tImes by her ERe. She
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also refused to participate in any meaningful way in accommodatmg management's first steps
toward specialization, which was to request all IMO's to transfer to a co-worker all of their low
volume blInd/disabled cases. As a result, by May, 1992, the number of blind/disabled cases in
other IMO's case loads was sigmficantly down In contrast to Ms. Patterson's. Upon cross-
examination, Ms. Patterson stated that she did not make the requested transfer because she had
only returned to work SIX weeks earlIer and was still battlmg with a huge backlog Moreover,
she said, most of her blind/disabled cases Involved famIlIes, not sIngle persons and only single
persons could be transferred to the low maintenance case load. She agreed, however, that in
October, 1992, another IMO was able to transfer out almost half of the blInd/dIsabled cases she
had retaIned !I
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Mr Redmond was called to testify on behalf of the Employer He made it clear at the
outset of his evidence, that as of February 20, 1995, he had reSIgned from the Employer, citing
personal reasons. From 1990, until that date, he was the Income MaIntenance Supervisor in the
Sarnia Office of the Employer
In hIS eVIdence, Mr Redmond agreed that to hIS knowledge, in most of the relevant time
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period the grievors had disproportIonately large case loads as well as backlogs, and he never I
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responded to their numerous pleas for relief When asked why, he made what was to the Board I
a startlIng admission he said that hIS failure to respond was due to mactlvity or improper
follow-up by himself There was no more specifi~ reason than that, he smd, for hIS fmlure to
act in a timely manner
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Mr Redmond's evidence in this regard was unshaken despite a rigorous cross-
examinatIon In cross-examination, Mr Redmond agreed wIth the suggestion of the counsel for
the Union that the delay in implementation of the new model of servIce in the Sarnia Office was
due to the Union's resistance. However, when it was further suggested that Mr Redmond was
holding the grievors up for ransom by refusing to ease their case loads until implementation of
the new model of service, he vigorously denIed It. He insIsted that hIS own lack of response to
the gnevors' predicaments was due to hIS own faIlure to act. In line with this, he testified that
he never discussed the activitIes or problems of the grievors wIth 'hIS own supervisor, nor dId
he receive pressure from this supervisor' when he encountered the delay in implementation of the
new model of service in Sarma.
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At the conclusion of the evidence, both parties appeared to agree that in order to be
disciplinary in nature, the action -- or, as here, machon -- of a manager must spnng from a
disciplinary intent. See Re Jacobesen and Ministry of Community and Social Services (1991),
G S B. No. 1312/86, at 14-15 (Roberts), Re Spencer and Ministry of Correctional Services
(1985), G S B No 1091/84, at 7-8 (Roberts) Counsel for the Union submitted that the
circumstances proven m thIS case demonstrated that Mr Redmond's inaction did spring from
a disciplinary intent. He stressed that the grievors were two Union activists who caused a
significant problem for Management in holding up the Implementation of the new model of
service. Both had large backlogs by VIrtue of having been away on chronic illnesses and both
had the highest case loads. It was incredibly easy, counsel submItted, to make an adjustment
in their case loads, taking only mInutes of work. Counsel also pointed out that according to the
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evidence, another IMO had her case load adjusted in the relevant time frame whIle the gnevors
did not. I
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Counsel for the Umon went on to suggest that Mr Redmond's denial of a disciplinary
intent should be discounted. A denial, it was submItted, could always be expected fram a
manager in Mr Redmond's positiOn It was stressed that Mr Redmond did not offer any other
reason than that he failed to respond. This, it was suggested, did not stand up against the
circumstances proven in thIS case.
Counsel for the Employer on the other hand, submitted that Mr Redmond's eVIdence
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should be accepted by the Board The subjectIve impression of the grievors that their case load
assIgnments constituted pumshment, counsel pointed out, had already been rejected in another
context by a previous board. In this regard, we were referred to Re Gibson/Patterson and the
Ministry of Community and Social Services (1994), G S.B. No 319/93 (Barrett) In that case,
the gnevors gneved as dIscIpline theIr case load asSIgnments after implementatlon of the new
model of service. The Board concluded that it could not find, on an objective view of the
evidence, any nexus between the gnevors' case load aSSIgnments and a desire to punish.
Counsel for the Employer conceded that Mr Redmond, apparently bemg indecisive in
nature, perhaps was not a good manager but stressed that his failure to act did not spnng from
an ulterior motive to punish. There was, it was submItted, no reason for Mr Redmond to
attempt to mislead the Board as to hIS intent. He was no longer an employee of the Mimstry
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nor did he have any other attachment to the Mmistry As a result, it was submItted, he had no
reason to protect the Mimstry by castmg 10 neutral terms what was In fact a deSIre to pumsh.
Upon considering these submIssions in light of the evidence, the Board must say that this
is a close case. We can well understand how the grievors must have inferred from the
circumstances that their backlog and case load problems were not being addressed because Mr
Redmond wanted to punish them, inter alia, for holdIng up Implementation of the new model
of service in Sarnia.
As the ~n;e time, however, we simply cannot discount Mr Redmond's evidence that his
failure to respond to the grievors' predicaments sprang from a managerial inadequacy rather than
a disciplInary intent. We find persuasive the fact that Mr Redmond gave this evidence after he
has reSIgned from the Employer and severed all attachment to it. It seems to us that in these
circumstances, it would have been far easier for Mr Redmond to agree that he intended to bring
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two "unruly" employees into lme than to confess hIS own managerial weakness. Such forthright
evidence, we believe, must be given substantial credit.
In the result then, we must conclude that while this IS a close case Mr Redmond's lack
of response to the grievors' legitimate requests did not spring from a dISCIplinary intent. In light
of this conclusion, the preliminary objection of the Employer to jurisdictIon must be allowed
The Grievance Settlement Board does not possess junsdiction over the merits of the grievors'
claIms.
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DATED at London, OntarIo, thIS 8th day of August, 1995
I concur ~~\ Ul'tf/~ {-I"-.
S Urbain, Union Member
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I concur
D Montrose, Employer Member
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