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HomeMy WebLinkAbout1996-0357KENNEDY96_07_16 ONTARIO EMPLOYES DE LA COURONNE CROWN EMPLOYEES DE L'ONTARIO 1111 GRIEVANCE COMMISSION DE SETTLEMENT REGLEMENT BOARD DES GRIEFS 180 DUNDAS STREET WEST, SUITE 2100, TORONTO ON M5G 1Z8 TELEPHQN~TELEPHONE (416) 326-1388 180, RUE DUNDAS OUEST, BUREAU 2100, TORONTO (ON) M5G 1Z8 FACSIMILE/TELECOPIE (416) 326-1396 GSB # 357/96 OPSEU # 96El12 IN THE MATTER OF AN ARBITRATION under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN OPSEU (Kennedy) Grievor - and - The Crown in Right of ontario (Ministry of Health) Employer BEFORE F Briggs Vice-Chairperson FOR THE M. Bevan GRIEVOR Grievance Officer Ontario Public Service Employees Union FOR THE 0 Chiro EMPLOYER Coordinator, C.A. Negotiation Management Board Secretariat HEARING June 27, 1996 When the recent pubhc sector strike recently concluded, the partles sIgned a Back to Work Protocol. The document, sIgned on March 29, 1996, mcluded the followmg: 100 No Repnsals 10 1 Both parties agree that there will be no repnsals or retahatlOn for any act or mactIon taken by any employee of the employer ansmg out of participation m the strike. In adchtIon, both partIes agree that no employee shalllll1tIate or participate m any repnsal, dlscnmmatlon or retahation for any act or mactIon taken by a manager or excluded employee durmg the strike, 10.2 It IS agreed that: (A) there will be no disclpIme taken agaInSt any employee for any act done dunng the strike up to and mcluchng March 29, 1996, (B) neIther party willlll1tIate any gnevance or claun m an} court or tribunal for damages or other rehef, or any other claun, for any matter ansmg dunng the strike, and will dIscontmue any L.1.at have been lll1tIated; (C) ill the mterest ofre-estabhshmg a hannomous workplace, both parties will review any charges that may be outstandIng, and will deterrmne whether there are any m whIch a recommendatIOn to chscontmue any such charges Ill1ght be made to the appropnate authontles. Mr Kennedy, an ambulance attendant, gneves that the Employer Vlolated the Back to Work Protocol when It Issued a letter of counsellmg regardmg an mCldent wInch occurred on March 29, 1996 By way of remedy he asked that the letter be removed from any and all files In fact, the gnevor was ongmally suspended for three 14 hours sInfts It was agreed at the heanng, that the gnevor IS a SIxteen year employee WIth no preVlous dIsclplme The Dmon took the pOSItIon that the gnevor was rmproperly dIscIplmed contrary to the Back to Work Protocol. The Employer argued that the gnevor was gIVen a letter of counsellmg wInch IS non-dlsclplmary Therefore the matter m marbltrable Mr Kennedy was notIfied of the suspensIOn m a letter authored by the RegIOnal Manager, dated Apnl 10, 1996 wInch stated. 1 2 I am wntmg further to the pre-d.1sclplme heanng conducted on Apnll 0, 1996 at the PeellY ark and Dlstnct .A.mbulance Service 52 Bramalea Road, Bramalea OntarIo to reVIew an mCIdent whIch OCClUTed on March 29, 1996 You were represented at tIns meetmg by Michael McPeak and management was represented by Grace Fowler With Dawn Murray attendIng on behalf on the Human Resources Branch, Dunng the course oftlus meetmg, as the Deputy MinIster's DesIgnate, I receIved mformatIOn from you, your representative and from management regardmg tIns Issue. ThIS IllcIdent occurred dunng the time the bargaInIng urnt was on strike and the ambulance station key was m the ambulance as the locks had been changed at the statIOns for secunty reasons. TIns ISsue at hand centres around an mCIdent that occurred on March 29, 1996 whIch resulted III Enc Burgess bemg mJured. Me Burgess was not able to report for work for three shIfts followmg the mJury Accordmgto the statements regarding tIns mCIdent you and your partner Michael McPeak (SIC) amved at the Fire statIon located at W oodbndge and KiplIng A venues at approXImately 18 15 hours to meet yom replacement crew Enc Burgess and Jeff McWilham. Me McPeak went mto the fire hall on your amval to get the replacement crew at wluch tune he notIced you had actIvated the warmng lIghts and arr horn mdIcatmg you had receIved a call for servIce from the ambulance commurncatlons centre. At tIns tune Enc Burgess came out to the ambulance and ask (SIC) for the statIon key to get mto the ambulance statIon. You md.1cated to Enc that the key was to remam With velucle. Enc agaIn asked for the key and reached Into the velucle In an attempt to retrIeve the key At tIns tune you drove forward Without warmng wluch resulted m Enc bemg mJured. Me McPeak stated at the meetmg that the call you receIved was a code three (3) call (urgent) When I attempted to have you clarIfY some of the crrcumstances surroundIng tIns InCIdent both you and yom representatIVe Me McPeak refused to respond statmg I was to rely on the wntten statements provided by you m makIng my declSlon. The relevant Issues oftlus mCIdent are as follows' - You dId III fact move the ambulance WIth the full knowledge that Me Burgess was reachIng Into the velucle to retrIeve the statIOn key - You Violated the Health and Safety of another employee causmg mJury - Me Burgess sustamed an mJury wluch resulted m hnn not bemg able to report to work to work for three slufts. After consIdenng the sIgmficance of your actIOns, wluch lead to the mJury a (SIC) fellow employee, and the fact that the outcome was totally aVOidable I am hereby advIsmg you that, m 3 accordance WIth SectIon 22(2) of the PublIc Service Act R.S 0 1980 cA18 and SectIOn 3-2-14 of the Manual of Corporate PolIcy and Procedure, you are bemg removed from employment WIthout pay for a penod of three (3) consecutIve fourteen (14) hour slufts commencmg on April 18,1996 and returnmg to work on April 21, 1996 for a total of 42 hours. ThiS IS eqwvalent to fiye (5) days off WIthout pay recogruzmg that you work on a vanable work hours schedule. I WIsh to emphasIZe that tlus was an extremely sIgnIficant breach of conduct and had It not been for your past employment record more severe dtsclplme would have been unposed. I must also warn you that any further mCldents of tlus nature will result m dtsclplme bemg unposed up to and mcludmg dtsrmssal. On May 15, 1996, the same RegIonal Manager sent a letter to the gnevor whIch stated Enclosed IS a letter of coWlSellmg that replaces the letter of dtsclplme prevIously placed on your file m regard to tlus mCIdent. Your payroll deductIons will be adjusted to reflect tlus change. TIns IS no way reduced or changes the seriousness of the offense but does reflect the agreement reached between the umon and the employer m regard to the return to work protocols after the strike. ThIS non-dIsclplmary letter of counsel will be placed on your corporate file. The attached non-mscIplmary letter of counsel stated. I am wntmg further to the meetmg conducted on April 10, 1996 at the PeellYork and DIStrIct Ambulance Service to review an mCldent wluch occurred on March 29, 1996 Tlus IS a non-dtsclplInary letter of counsel regardmg an mCIdent between you and a co-worker that occurred on March 29, 1996, and to adVIse you of Management's expectatIons should a sunilar mCldent occur m the future. Tlus fficldent occurred dunng the tIme the bargammg umt was on strike and because of secunty reasons the ambulance statIon key was kept m the velucle. Tlus mCIdent resulted m Eric Burgess being ffiJured, Mr Burgess was not able to report to work for three slufts followmg the mJury According to statements regardIng tlus mCldent you and your partner, Michael McPeake, amved at the Fire StatIOn located at Woodbndge and Ktplmg Avenues at approXImately 18 15 hours to meet your replacement crew Enc Burgess and Jeff McWillIam. Mr McPeake went mto the fire hall upon your amval to gt the replacement crew at wluch tune he noticed you had actIvated the wammg lIghts and arr horn mdicatIng you had received a call for service from the ambulance commumcatlons centre. At tlus tIme Enc Burgess came out to the ambulance and asked for the statIon key to get mto the ambulance statIOn. You mdIcated to Enc that they key was to remam With the vehicle. Enc agam asked for the key and reached mto the vehicle m an attempt to retneve the key At --_.~ 4 tlus tune you drove forward WIthout warnmg wInch resulted m Enc bemg lll]ured. Mr McPeake stated at the meetmg that the call you received was a code three (3) call (urgent), thus allowmg some tune to resolve the key Issue m a professIOnal manner When I attempted to have you clarIfy some of the CIrcumstances SurrOWldmg tlus mCldent, both you and your representative refused to respond. TIns mCldent was of an extremely senous nature and resulted m the mJUIY of a co-worker In future, I expect you to conduct yourself and operate your ambulance WIth full regard to the health and safety of your co-workers. A veIncle should not be moved while someone IS reachmg mSlde. TIns non-cltsclplmary letter of cOWlsel will be placed on your corporate file UNION SUBMISSION Mr Bevan, for the Umon, argued that the gnevor was dIscIplmed m VIolatIon of the Back to Work Protocol. The Protocol clearly states that employees are not to be dIsclplmed for mCIdents that occurred dunng the penod that the publIc servIce was on strike There IS no dIspute that the gnevor was ongmally gIVen a three day suspenSIOn m dIrect contraventIOn of the Protocol. Tills VIolatIOn was notIced by an Employer representatIve who deCIded to reduce the dIscIphne to a letter of cOWlsellmg. Tlus substItutIon of penalty must be seen for what It was, that IS, ail ObVIOUS attempt to CIrcumvent the Protocol and, as such, cannot be allowed to stand. The Dmon asserted that the May 15, 1996, letter IS clearly dIscIplmary and the mere fact that the Employer states that It IS non-dIscIplmary does not magIcally make It so Arguably, the Employer's own covenng letter buttresses tins VIew It was clearly stated that the suspenSIOn was reduced m accordance WIth the Back to Work Protocol, not because the Employer was of the VIew that the three day suspenSIOn was too severe a penalty The Umon relted on Re The Crown in Right of Ontario (Ministry of Community and Social Services) and OPSEU (LeClair) (JWle 27, 1991), unreported (Stewart) In that deCISIOn, the Board reVIewed earher awards wluch consIdered vanous dIscIplmes. It was stated on page 10 5 After revlewmg the approach taken by tlus Board m Cloutier, 20/76, Naik, 108/77 and ZuibIYckI, 425/81, the Board stated m Hamblm, IDJlllil, as follows. While the expressIons of view are somewhat disparate, the best view seems to be as follows. A. The character of a commurucatlOn cannot be Judged sllllple by the titled It IS gIven by the Employer The cntIcal consideratIOn IS the substantive effect of the letter or note. B A dlsclplmary commurucatlOn IS one winch IS mtended to purush or chastise the employee for faihrre to perform properly In a system of progressive dIsclplme, one will often see a very mmor dlsclplmary response to a failure, followed by progreSSively more sever responses to the same of sImilar failures of performance. Thus, the first dlsclplmary action, though very mild, has slgrufIcance beyond the ImmedIate purpose, because more severe disclphne can be built on the frrst or further such failures of performance. C A non-disclplmary commurucatlOn may counsel or recommend certam conduct to the employee, but It has no SignIficance for future discIplme. In other words, a non- dIscIplmary commurucatIon cannot prejudIce the employee. It was later stated on page 11 The commurucatlon was described as a "repnmand" It was clearly mtended to chastise Mr LeClaIr Whether or not Ms. Craig distmgwshed the verbal repnmand from dIsclplme at the Apnl 23, 1990 meetmg, she dId state m her June 26, 1990 letter that he was adVised at that meetIng that further mCldents oflateness "would result m dJsclplmary sanctIOns", llllplymg that disclphnarv sanctions had not yet been mvoked at the time. Ms. W1nte stated at the heanng that the Employer was not relymg on the repnmand as dIsClplme. However, as IS noted m the Hamblm deCISion, IDUllil, the nature of the commurucatlOn IS not determmed by how It IS charactenzed by the Employer There was a wntten record of the repnmand kept by Ms. Craig, alblet (SIC) not m Mr LeClaIr's personnel fIle. As eVidenced by the manner m winch IS was referred to m the disClplmary letter, the repnmand gIven by Ms. Craig was conSidered to be part ofMr leClaIr'S record With respect to tlus matter and It was relIed on by the Employer m the llllposltIon of the letter ofwarnmg. Ms. Craig acknowledged that a wntten warnmg would not have been llllposed If a verbal reprimand had not been prevIOusly Issued. Clearly, the verbal repnmand prejudIced Mr LeClair m terms of future dJsclplme. The Dmon urged that even If letters of counsellmg are generally found to be marbltrable, the 6 Board can take junsdIctIOn of thIS matter because of the Back to Work Protocol The only dIfference between the two letters the gnevor was the removal of the suspenSIOn. As such, It IS clear that, accordmg to the Back to Work Protocol, the gnevance must be upheld. In the alternatIve, If the Board fmds that the matter IS marbItrable, a further heanng should be ordered because the gnevor dIsagrees wIth the Employer's verSIOn of the facts and the record should not be allowed to stand, as IS EMPLOYER SUBMISSION Mr Chrro, for the Employer dId not take Issue WIth much of the Dmon's charactenzatIon of the facts. However, he urged the Board to remember that, while the mCIdent took place on March 29, 1996, the gnevor was at work as an essentIal worker Therefore, the mCIdent was not strike related and, accordIngly, the gnevor cannot seek refuge from ArtIcle 10 of the Back to Work Protocol. Further, ArtIcle 10.2 proVIdes that employees could not be dIscIplmed for any act done dunng the strike In the mstant matter, the gnevor was not dIscIplIned. Mr Chrro conceded that he was 1ll1tIally suspended WIthOut pay, but when the agreement of the partIes became known, the suspensIOn was rescmded and the gnevor was merely gIVen a letter of counsellmg. The Employer suggested that the language of the Back to Work Protocol was carefully crafted and does not state that the Employer IS prohibIted from addressmg mCIdents wmch occurred. The Employer had a legItunate concern and the gnevor had to be made aware of those concerns A letter of counsellmg was appropnate m the CIrcumstances The Employer asserted that the partIes amended the sectIon of the collectIve agreement regardmg employee files. Now, files shall be automatIcally purged and the Employer must 7 dIsclose any documents that It IS mtendmg to rely upon m a proceedmg. Accordmgly, the letter that the gnevor receIved cannot be used agamst hun m any further matter, nor wIll It ever be utilized m the consIderatIon of any career opportunIty The letter IS non dlsclplmary and therefore tins Board IS WithOut the junsdlctIon to order ItS removal. Moreover, m these CIrcumstances, It would not be appropnate for the letter to be removed. In reply, Mr Bevan suggested that the amendments to ArtIcle 27 do allow for the purgmg of dIscIplIne from the gnevor's file However, If the May 15, 1996, letter IS found to be not dIscIplIne, It could be on the gnevor's file forever and he would have no recourse to have It removed. Further, It was urged that once the letter IS carefully conSIdered, there can be no doubt that It IS dlsclplmary m nature and, gIVen the agreement between the parnes m the Back to Work Protocol, was Issued m bad faIth. DECISION The partIes agreed m ArtIcle 10 1 the Back to Work Protocol that there would be no repnsals, dIscnrnmatIOn or retalIatIOn for strike related actIVIty or mactIVIty It was also agreed m ArtIcle 1O.2(a) that no dIscIplme would be taken agamst any employee for any act done dunng the strike Tills proVISIon IS not expressly tied to labour relatIons actiVItIes or strike related actIVItIes. The Employer suggested that I could only assume junsmctIon m tlns matter If the gnevor was dlsclplmed and, because the gnevor was Issued a letter of counsellmg, the matter IS marbItrable Accordmgly, It IS appropnate to fIrst address whether the letter of May 15, 1996 IS dISCIplInary It was SaId m Hamblin (supra) that "The character of a commumcatIon cannot be judged SImply by the title It 15 gIVen by the Employer The cntIcal conSIderation IS the substantive effect of the letter or note" I agree If that pnnclple 15 applIed to the mstant 8 cIrcumstances, there can be no doubt that the letter IS dISCIplmaty m nature and therefore arbItrable The Employer suspended the gnevor for forty-eIght hours for the March 29, 1996, mCIdent whIch resulted m the mJWY of a co-worker A letter was Issued whIch made very clear that the matter was an "extremely sIgmfi.cant breach of conduct and had It not been for your past employment record more severe dtscIplme would have been IIDposed." Indeed, dIsnussal was threatened m the event of the another s1ID1lar mCIdent. The "Non DIscIplmaty Letter of COlIDsel" that was later Issued to the gnevor stated that the mCIdent was "of an extremely senous nature" The substance and form of the non dIscIplmaty letter IS VIrtually IdentIcal. There are some substantIve paragraphs whIch were SImply re-produced. The Employer cannot Issue a letter of dtscIplme and later fe-Issue VIrtually the same letter, absent any monetaty penalty and expect a Board of ArbItratIOn to fmd that the letter non dtscIplmaty The partIes agreed to certam proVISIOns regardmg the return to work of employees after a strike. That agreement cannot be cIrcumvented by managers or employees because It IS not to theIr lIkIng. The May 15, 1996, letter does not even suggest that the matter has been reconsIdered and detennmed to be of lesser concern bnngmg about only a letter of counsellmg. Indeed, the covenng letter candIdly states that the alteratIon and reductIon to a letter of counsel was reflectIve of the "agreement reached between the umon and the employer m regard to the return to work protocols after the strike" In the Instant cIrcumstances, the Employer Issued a substantIal dIscIplme to the gnevor for an InCIdent wru.ch occurred on March 29, 1996 However, the suspensIOn was a clear contraventIon of the Back to Work Protocol and a further letter was Issued. If the facts set out are accurate, whIch was derued by the gnevor, It IS not surpnsIng that the Employer was concerned about the InCIdent. 9 If no suspensIOn had been 1ll1t1ally gIVen to the gnevor, tlns lllight have been a dIfferent matter However, I do not have to consIder that argument because I am convmced that the letter Issued to gnevor on May 15, 1996 IS dIscIplmary m nature and therefore a vIOlatIOn of the Back to Work Protocol. The mere fact that the Employer has re-Issued the letter wIth a few alteratIons and labelled the letter "non-dtscIplmary" does not make It so Havmg made that detennmatIon, It IS not necessary for me to detennme If a letter of counsellmg would be allowable under the Back to Work Protocol because, as stated above, the May 15, 1996 letter IS dIscIplme To allow the letter to stand even wIth the label of "Non DIscIplme" would allow the Employer to Ignore ItS agreement under the Back to Work Protocol The letter IS to be removed from any and all files I will remaIn seIzed m the event that there IS dIfficulty ImplementIng tlns deCISIOn. Dated m Toronto, tlns 16th day of July, 1996 ~ c_ ~.~ ~ ~ 'I-AP// /; / I~J'7j Fehclty D Bnggs ! )L Vice ChaIr