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Home My WebLink About1997-1536BRANTON98_10_27 . ONTARIO EMPLOYES DE LA COURONNE CROWN EMPLOYEES DE L'ONTARIO 1111 GRIEVANCE COMMISSION DE SETTLEMENT REGLEMENT BOARD DES GRIEFS 180 DUNDAS STREET WEST SUITE 800, TORONTO ON M5G 1Z8 TELEPHONE/TELEPHONE (416) 326-1388 180, RUE DUNDAS OUEST BUREAU 800, TORONTO (ON) M5G 1Z8 FACS/MILE/TELECOPIE (416) 326-1396 GSB # 1536/97 OPSEU 97F035 INTHEMATfEROF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEV ANCE SETTLEMENT BOARD BETWEEN Ontano PublIc Servtce Employees Uruon (Vaughan Branton) Grievor - and - The Crown m RIght of Ontano (Mirustry of Health) Employer BEFORE D.J.D Leighton Vice-Charr FOR THE DaVid Wnght GRIEVOR Counsel Ryder Wnght Blarr & Doyle Bamsters & SolICitors FOR THE Jane Hooey EMPLOYER Counsel Legal Servtces Branch Management Board Secretanat HEARING October 21, 1998 Preliminary Decision Mr Vaughan Branton was a Mamtenance ElectncIan at the Wlutby Mental Health Centre, Mirustry of Health, untillus employment was termmated on October 30, 1997 m accordance WIth SectIOn 22(3) of the PublIc SefV1ce Act (the Act) wluch IS disrrussal for cause Mr Branton gneves tlus dISrruSSal as unjust and two mCldents of dIscIplIne on July 7 and July 21, 1997, where, 10 both cases, he was suspended for three days WIthout pay The gnevance came on to heanng on October 21, 1998 and the Uruon raIsed a prelIrrunary Issue obJectmg to the scope of the eVIdence of the past record, wluch the Employer 10tended to rely upon. Mr Wnght subrrutted, on behalf of the Uruon, that there were four categones of documents that should be madrrussible The Uruon objects to documents relatmg to attendance reVIew between 1992 and early 1996 be10g adrrutted 10 eVIdence Mr Wnght argued that gIven that Mr Branton was dIsrrussed because of alleged culpable conduct, documents relat10g to mnocent absenteeIsm and attendance reVIew by the Employer are not relevant. The Uruon adrruts that the Gnevor had an attendance problem dunng these years for wluch he sought, and receIved, treatment. The Gnevor's attendance IS no longer an Issue and, therefore, these documents are not relevant. The Uruon also objects to a second group of documents - letters of counsel - receIved by the Gnevor between 1990 and 1994 Mr Wnght argued that these letters were not dIscIplInary and, therefore, can not be relIed upon now as part of a dIscIplIne record. Therefore, these documents are not adrrussible to support the disrrussal of the Gnevor The Uruon objects to a tlurd category of documents - 10ternal memorandum of the Employer - that reference 10CIdents that were not drawn to the Gnevor's attentIOn and for wluch there was no dIscIpline Mr Wnght argued, as WIth the second category of documents, that If Page 2 of 5 there was no dIscIpline meted out then these IncIdents can not form part of the record to support a dlsrmssal now The Dmon relted upon Re. Esso Petroleum Canada and Energy and Chermcal Workers Dmon. Local 614 (1989) 9 L A.C (4th) 390 and Re. S.K.F. Manufactunng of Canada LIrmted and InternatIOnal AsSOCiatIon ofMachImsts. Local 901 (1975) 9 L A.C (2d) 139 (Slume) In . support of ItS argument that the documents In the first three categones were not adrmssible. The fourth and last category of documents relate to letters that are clearly dISCIplIne, four letters of repnmand and one letter suspendIng the Gnevor for one day 1 December 14, 1992 - repnmand for galmng access to workplace In off-hours 2 December 24, 1993 - repnmand for unauthonzed absence from work statIOn. 3 January 7, 1994 - repnmand for failure to report absence from work for one day 4 January 26, 1994 - repnmand for unauthonzed absence from work area. 5 August 31, 1994 - suspensIOn for one day for unauthonzed absence from work area. Mr Wnght argued that letters 1 and 3 should not be perrmtted In eVIdence because ArtIcle 22 15 1 of the CollectIve Agreement prOVIdes Any letter of repnmand, suspensIOn or other sanctIOn will be removed from the record/file of an employee three (3) years follOWIng the receIpt of such letter, suspenSIon or other sanctIon proVIded that the employee's record/file had been clear of sunilar offences for the past three (3) years. Any such letter of repnmand, suspenSIOn or other sanctIon so removed can not be used In any subsequent proceedIngs. Mr Wnght argued further that letters 2, 4 and 5 would only remaIn on the Gnevor's file until August 31, 1997 and then would have to be removed. Therefore, these letters can only be relted upon by the Employer to prove Just cause for the suspensIOns In July of 1997 However, these letters can not be relted upon to support Just cause for the disrmssal of the Gnevor I. Ms. Hooey argued for the Employer that all four categones of documents were adrmssible She argued further that the documents relatIng to the attendance reVIew between Page 3 of 5 1990 and 1994 will demonstrate that the Gnevor was gIven every opporturuty to Improve lus performance. The Employer took the posItIOn that Mr Branton IS a poor performer and that the Employer dId ItS best to support lum m order that he become a good performer m lus Job She argued further that It was clear that Mr Branton was not termmated because of absenteeIsm, but rather that the Employer had concluded that he would never Improve Ms Hooey acknowledged that the letters relatmg to counsellmg for mnocent absenteeIsm are not dISCIpline Counsel subrrutted that If the Employer did not put m such eVIdence the Uruon rrught take the pOSItIon that the Gnevor had not been properly supported or counselled before dIscIplIne was meted out. She argued further that the mternal memos, wluch relate to mCIdents where the Gnevor was not dIscIplmed, are adrrussible not to support dIsclplme, but because they will demonstrate the actIOns taken by the Employer to aSSIst the Gnevor Counsel subrrutted that out of a seven year record of dIscIplIne a common theme emerges - failure to follow a supervIsor's dIrectIon. Tlus IS eVIdenced by absence from work or domg the work of others In conclUSIOn, Ms Hooey subrrutted that the Gnevor was not termmated until after seven years of poor performance. Throughout the seven years lus record was never clear Thus the Employer requests that all these documents be adrrutted m eVIdence. Decision HaVIng carefully conSIdered the subrrussIOns of the partIes I have deCIded not to adrrut eVIdence relatmg to the work attendance reVIew process and documents relatmg to It between 1992 and early 1996 These documents are not relevant and would be of no aSSIstance to the Board m decIdmg whether or not Mr Branton was Justly dIsrrussed on October 30, 1997 for culpable rrusconduct. I have also deCIded not to adrrut letters of counsel between the years 1990 Page 4 of 5 and 1994, nor documents relatmg to mCIdents wluch were not brought to Mr Branton's attentIOn, and for wluch there was no dISCIpline The ratIonale for the decIsIOn to exclude eVIdence under categones 2 and 3 IS the same It IS well established law that where there has been no dlscIphne for an mCIdent, or where an mCIdent has not been drawn to the attentIon of an employee and, therefore, no dIscIphne has been meted out, that past record can not be adlTIltted subsequently to support a dIslTIlssaI. SFK at 140 and Esso Petroleum at 398-399 However, I have deCIded not to exclude the letters wluch are clearly dlscIphnary at tlus pomt. HaVIng not heard any eVIdence as to why the Gnevor was suspended m July 1997, I am not m a posItIon to deCIde whether the preVIOUS dlSCIphne letters relate to "smlilar offenses" or not or whether ArtIcle 22 15 1 IS apphcable In summary I have deCIded not to adlTIlt documents relatmg to Innocent absenteeIsm, letters of counsel between 1990-1994 and documents relatmg to mCIdents for wluch there was no dlsclplme. Dated at Toronto tills 27th day of October, 1998 D~ Page 5 of 5