Loading...
HomeMy WebLinkAbout1993-2201.Clinton.94-10-27 -~--- :1 ~ . -~ \ -, ) \.. ONTARIO EMPLOYES DE LA GOURONNE 9ROWN ~MPLOY~ES DE L 'ONTARIO 1111 GRIEVANCE CpMMISSION DE SETTLEMENT REGLEMENT BOARD DES GRIEFS 180 DUNDAS STREET WEST SUITE 2100, TORONTO, ONTARIO, M5G lZB TELEPHONE/TELePHONE (416) 326-1388 180, RUE DUNDAS OUEST BUREAU 2100, TORONTO (ONTARIO) M5G lZ8 FACSIMILE/TELECOPIE (416) 326-1396 2201/93, 132/94 IN THE HATTER OF AN ARBITRATION Under I THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT ) Before f 'THE GRIEVANCE SETTLEMENT BOARD BETWEEN OPSEU (Clinton) Grievor - and - The Crown in Right of Ontario (Ministry of Community & social Services) Employer BEFORE: F. Briggs Vice-Chairperson J. Carruthers Member M. O'Toole Member FOR THE A. Lokan UNION Counsel Gowling, strathy& Henderson Barristers & Solicitors FOR THE S. Mason EMPLOYER Counsel Legal Services Sranch Ministry of Community & social Services ./ HEARING August 31, 1994 'j ( - . 1; \\ ( ( I There are two grievances that state the grievor was suspended and ultimately discharged in, February 1994, without just cause and ask that the grievor be reinstated with full \ compensation and benefits. During the presentation of the e~ployer's evidence, the r ,-, matter of the grievor's previous disciplinary record arose. Counsel for the employer informed the panel that he intended to call evidence regarding discipline the grievor receiVed in 1989. ) 1 Thei$sue for this panel to determine is the acImissibility of evidence regardin~ an incident \ which occurred in 1989 for which the grievor was disciplined. The employer subInitted that the evidence should be heard and considered with respect to the matter of mitigation of penalty In considering whether the grievor ought to be reinstated, the panel should I hear the evidence of discipline received by the grievor for an incident of a similar nature. I ) The employer suggested that the board proceed to hear the evidence and later detennine; I whether the evidence is admissible in the interest of maldng the most efficient use of time and available witnesses. It was the union's position that the matter of ~dmissibility must be decided prior to hearing the evidence given the highly prejudicial nature of that evidence. Further, the evidence the employer wished to call is inadmissible and could be neither heard nor considered. ,j \ I , ( I / 1 I ) . \ ----- "- .- -- ( ( r 2 The panel asked counsel for the parties to argue the issue of admissibility of the evidence before hearing any fqrther evidence. This decision deals only with this issue. "- The parties agreed that the grievor had never fonnally requested to have any discipline removed from his file. The Union was content to argue this issue as a point of law UNIONStJBMISSION :i' ~~.;;'h Mr Lokan, for the union asserted that in( considering the use of the prior record, arbitrators are guided by two principles. Firstly, when imposing discipline, one cannot go too far back in the employee's record for earlier discipline to justify the level of discipline. Secondly, the record must be relevant to the matter at hand. Indeed, article 27 17 of the collective agreement between these parties affinn those I I general arbitral principles. This provision takes into account and balances the interests of the parties. The employer is concerned with its ability to rely on a documented pattern of conduct and the union is concerned that the grievor's record is purged after a defined ( period of improvement. Mr Lokan correctly foresaw the employer's argument that the incident has remained on ,~ the grievor's file because he never asked to have it removed. The failure to make such a request ultimately means that the discipline remains on the grievor's file. Therefore such ~ --- -- . i ( ( 3 discipline can be admitted and relied upon in this arbitration proceeding. Such a finding by this board would be unfortunate, suggested Mr Lokan. There is no rationale to allow the employer to rely on past discipline merely because the grievor inadvertently neglected to make a specific request to have his or her file purged. The result of such a decision would make no labour relations sense. ~ The union conceded that if it had argued that the grievor had a clean employment record \ I ) for his entire length of service, it would have been open to the employer to call evidence to refute such a claim. In those limited circumstances, the evidence would be relevant I and admissible. However, no such claim was made in the instant case and therefore the evidence ought not to be heard. ) EMPLOYER SUBMISSION ... [ Mr Mason, for the employer; suggested that the board should be guided by the clear language of 2717, which states: DISCIPLINARY RECORD I I I At the request of the employee, any letter of reprimand, suspension or other sanction will be removed from the record\files of an employee three (3) years following the receipt of such a letter, suspension or other sanction provided that the employee's record/files have been clear of similar offenses for the past three (3) years. Mr Mason argued that this board must be governed by the clear language of the collective agreement. In effect, the union is asking for the first part of the first sentence I / . --~ ---- -- -- -- - r ( \ I 4 to be read out of the collective agreement and to do so is beyond the jurisdiction of the (" board. The plain meaning of the words must be afforded to article 27 17 , I Given the parties' agreement that the grievor never formally asked to have his record cleared of previous discipline, the discipline he received in 1989 properly remains on his file and this board can and should take it into account. The evidence is not offered for the'd.etemrlnation of whether there was just'cause to terminate the employment of the grievor It will be tendered for the purpose of establishing that there is a pattern of conduct from this grievor and this pattern ought to be taken into account when the board considers whether to mitigate the penalty of discharge. Mr. Mason was clear that, once discharged, this grievor could not 'then ask for his file to be cleared of prior disciplines because the requirement that the conduct not be repeated would not have been met. The employer conceded that most collective agreements put ,.. the onus on the employer to ensure that the discipline is removed from the grievor's file after a certain period of time. However, this collective agreement is unique in that the burden is on the employee to initiate the purging of the record and the failure of the employee to make a request allows the employer to leave three year old discipline on the file and rely on it in the event it becomes necessary The employer asserted that the union is asking for a liberal and not a literal interpretation of article 27 17 In the instant case, a liberal reading would impose an unreasonable . -"'l~~:<<'''''' ---.- ; ( ( \ - i 5 burden on the employer It is established arbitral jurisprudence that the clean record of a griever, whether the offending conduct was an isolated- incident and whether the "~ emplOYment relationship has been irrevocably damaged are usual and appropriate considerations in deciding whether to mitigate penalty The evidence at issue goes directly to these points. Mi-Mason Wormed the board that the employer intends to call evidence not only on the fact of the discipline on the grievor's file, but of the facts regarding that incident. Given the na~ of that evidence, the union may-take the position that the evidence is, at least in part, hearsay, but the employer is of the view that the witness it intends to call has I direct lmowledge of the incident. ( f \ DECISION After careful consideration of this matter, this board is of the view that we must admit the evidence. While we are sympathetic to the poliCy and principle issues put forward by the Union to disallow the evidence, to do so would be incorrect. I The union suggested that we ought to look to the principles which surround clauses such as article 27 17 in arriving at our detennination. The employer suggested that to look to the principles and take a liberal approach in deciding whether to allow evidence of past discipline which is older that thre~ years would be to, in effect, amend the collective . -"- I ~ i ~ ,. I ( \ \ 6 agreement. We must agree with the employer Article 27 17 is quite clear Any discip~e will be removed from the files, "at the mquest of the employee." In order for the file to be \ .~- purged, the employee has to ask that such a cleansing be done. The removal of discipline is not automatic and notwithstanding the general principles which may apply J , I to "sunseri clauses, the record does not have to be purged until there has been a request by the employee. t,.. In the instant case, the union conceded-that the grievor made "no formal request" to have any discipline removed from his file. Therefore, the employer was not obliged to take any disciplinary notice from the file, even after a three year period. The request of the employee is the trigger which begins the process. Without that trigger, nothing obliges the employer to act according to the clear language of article 27 17 of the collective agreement. Therefore, in the instant case, the letter of discipline which was issued in 1989 is properly I on the grievor's file and therefore must be admitted into evidence. Our decision in this matter deals only with the issue of aCimissibility We understand that there may ~ an issue regarding an employer witness testifying about the facts regarding tl)e previous discipline outlined in the griever's file. The Union indicated that it might take the position that such evidence is hearsay and therefore ought not be allowed. Because we did not allow counsel for the employer to elaborate on the specifics of the evidence ) ) . ~ " ( \~'i~ 7 his witness will proffer, we are presently unable to make a decision about the admissibility of that evidence except as outlined above. We will deal with that matter if and' when it .~ arises. Dated in Toronto this 27th day of October, 1994. .-, / t/ / FJ 1d~J~ ' r... LjC; Felicity D. Briggs Vice Chair I I Dissent "Dissent Attached" I I J. Carrothers I Union Member ;lJ1~ ()I/~ i M. O'Toole Employer Member . ( ( " -. ) I \ DISSENT RE: CLINTON - 8SB FILE #2201/93, 13;:'/94 ----------------------------------------- t I have read the draft awat~d arid must d i sser.t The issue is admissibl~ of evidence ( My reasons are as follows See Brown and Beatty 7-4314 use of prior records page 7-168, f i t~S t full pat~agt~aph rlurrlbet~s 14, 1,5 arId 16 mak.es reference to use of prior records and 1 imi ts hc,w fat~ back Qrle should go. Article 27.17 - Disciplinary record is a rlew clause, i Y'lt rod uced in the Collective Agreement for the period of J anuat~y 1st to December 31st, 1993. The SQcial Corlt ract came i rltc. bei rig July, 1993, half- way tht"'ough the prior Collective Agreement, and with a great deal of confusion and a lot of dissatisfaction. The parties to the Collective Agreement, it w01.Il d appear, agreed tCI the i Ylt eYlt of the clause for good labour relations reasons - a technicality should not be llsed to undermine the clause and set-back this t"'elat ionsh i p "we tt"ust" I make YICI j ud 9 erneYlt on th i sease, at this particular pericld of t irne. ~. .. Si gY'led by: Cal'''l'''uthers. lJ ! .