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HomeMy WebLinkAbout2002-2405.Vojtko-Ioannidis.05-06-22 Decision Crown Employees Commission de ~~ Grievance Settlement reglement des griefs Board des employes de la Couronne ~-,... Suite 600 Bureau 600 Ontario 180 Dundas Sl. West 180 rue Dundas Ouest Toronto Ontario M5G 1Z8 Toronto (Ontario) M5G 1Z8 Tel. (416) 326-1388 Tel. (416) 326-1388 Fax (416) 326-1396 Telec. (416) 326-1396 GSB# 2002-2405 2002-2423 UNION# 2002-0230-0015 2002-0230-0016 2002-0230-0009 2002-023 0-00 14 2002-0230-0011 2002-0230-0012, 2002-0230-0013 2002-0230-0010 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN Ontano PublIc ServIce Employees Umon (V oJ tko-IoanmdIs ) Union - and - The Crown In RIght of Ontano (Mimstry of Commumty Safety and CorrectIOnal ServIces) Employer BEFORE RandI H. Abramsky Vice-Chair FOR THE UNION John BrewIn Ryder Wnght Blair & Holmes LLP BarrIsters and SOlICItorS FOR THE EMPLOYER LIsa Compagnone Counsel Management Board Secretanat HEARING Apnl18 May 30 and June 2,2005 2 Award On November 10 2004 the gnevor Ms LydIa VOJtko-IoanmdIs, was Issued a twenty- day suspenSIOn for substandard case management and breach of Mimstry polIcIes On November 12, 2004 she filed a gnevance concermng thIS dIsCIplIne At the outset of the heanng, the Umon raised a prelImInary obJectIOn to the ImposItIOn of the dIscIplIne SpecIfically the Umon alleges that when the Mimstry met wIth the gnevor to dISCUSS her work performance no mentIOn was made of dIscIplIne dunng the meetIngs The Umon asserts that the Employer has an oblIgatIOn, under the duty of fairness, to advIse the gnevor not only of ItS understandIng of the facts but ItS Intended course of actIOn before any penalty IS Imposed. SInce thIS was not done, the Umon asserts that the Employer depnved the gnevor of her nght to umon representatIOn and that the dIsCIplIne should therefore be VOId ab initio ThIS Award addresses the Umon's prelImInary obJectIOn. Facts The gnevor IS a ProbatIOn and Parole Officer wIth the Mimstry of Commumty Safety and CorrectIOnal ServIces The Employer due to concerns regardIng the gnevor's work performance, performed an audIt on a number of her case files The findIngs there led to a second, more extenSIve audIt. These audIts, accordIng to the Employer revealed a number of senous performance Issues whIch the Employer wanted to address wIth the gnevor On September 20 2004 the gnevor's supervIsor Mr KevIn McIntyre, wrote to the gnevor adVISIng her of a meetIng on September 23 2004 The letter contInued as follows (bold In ongInal) 3 You are reqUIred to attend thIS meetIng to respond to the folloWIng You are a Probation Parole Officer with core duties and responsibilities to meet ministry policies and supervision standards in all cases assigned to you. Recent Case Management Reviews have found a large number of cases with limited or no supervision occurring for long periods of time and that several of these pertained to high and medium risk cases. In others, these reviews commonly found unacceptable breaches of ministry policies and standards, absent documentation, limited or no victim contacts and/or failures to follow-up on enforcement action when your notes indicated the need for this action. As thIS meetIng may agaIn result In dIscIplInary actIOn, you are entItled to have a representatIve accompany you and It IS your responsIbIlIty to make all of the necessary arrangements Should you fall to attend thIS meetIng, the meetIng wIll proceed In your absence /s/ KevIn McIntyre The gnevor through an e-maIl on September 22, 2004 advIsed that she was unable to obtaIn Umon representatIOn for the meetIng, and sought to postpone the meetIng to mId-October By letter also dated September 22, 2004 the Mimstry agreed to reschedule the meetIng, but dId not agree to mId-October It wrote "As the Employer has an oblIgatIOn to seek clanficatIOn and, If necessary to take correctIve actIOn In a tImely manner thIS IS not acceptable" Instead, the Employer rescheduled the meetIng to October 5 2004 It then repeated that she was reqUIred to respond to the allegatIOn set forth above, In bold. It then concluded as follows As you have already been advIsed, thIS meetIng may result In dIscIplInary actIOn. As such, you have been proVIded WIth approxImately twelve addItIOnal days to make arrangements to have a representatIve accompany you. As such and to be clear should you not attend thIS meetIng, It wIll proceed In your absence 4 On October 5 2004 the gnevor attended the meetIng wIth Ms Pat Honsberger RegIOnal RepresentatIve for OPSEU from the Guelph office Ms Cheryl SIkkes, Area Manager chaired the meetIng. Also In attendance were Mr John Wass, Semor ProJect Analyst, Western RegIOn, and Mr KevIn McIntyre In terms of thIS motIOn, there IS lIttle dIspute about the content of the October 5 2004 meetIng. At thIS meetIng, the gnevor was provIded wIth a copy of the audIt results and summanes A number of the problems found were IdentIfied, and the Employer stated that It wanted to find solutIOns to deal wIth the performance Issues On several occaSIOns, the gnevor was asked what solutIOns she could provIde to ensure that these types of problems dId not reoccur There was a dIscuSSIOn about Mimstry standards and pOSSIble traInIng. The gnevor asked for tIme to reVIew the audIt In order to respond. The Employer agreed to thIS request and to meet agaIn. On October 13 2004 KevIn McIntyre wrote to the gnevor adVISIng her of a second meetIng to be held on October 18 2004 That letter states, In relevant part, as follows Further to our meetIng of October 5 2004 and your request for addItIOnal tIme to reVIew your audIt results I WIsh to adVIse you a meetIng has been scheduled at 1030 a.m. on Monday October 18 2004 It IS our expectatIOn that you wIll be respondIng by suggestIng pOSSIble solutIOns to correct senous deficIenCIes found In your audIt results To reIterate, you are dIrected to attend thIS meetIng. As you have preVIOusly been advIsed thIS process may result In dIscIplIne and as such you may bnng a representatIve to aSSISt. Yours truly /s/ KevIn McIntyre 5 The gnevor attended thIS meetIng wIth local ChIef Steward Steve Routenburg. The same three IndIVIduals attended for the Employer - Ms SIkkes, Mr Wass and Mr McIntyre Dunng thIS meetIng, the gnevor dIsputed a number of the audIt findIngs She also challenged the methodology of the audIts and how It was done compared to audIts of other ProbatIOn and Parole Officers She also raised the Issue of her accommodatIOns and whether that had been adequately accounted for In the audIt. ChIef Steward Routenburg testIfied, wIthout contradIctIOn, that Ms SIkkes conveyed that the audIt was cause for senous concern and raised senous performance Issues, but no mentIOn was made of dIscIplIne Standards and traInIng were dIscussed and other "solutIOns" were sought, but dIscIplIne was not mentIOned as a potentIal "solutIOn." He stated that he was surpnsed when, subsequently the gnevor was Issued a suspensIOn. In hIS VIew what should have happened was that the Employer should have advIsed them regardIng the level of dIsCIplIne they were contemplatIng, so that he and the gnevor could respond to It In terms of whether the proposed dIsCIplIne was reasonable In all of the CIrcumstances At the end of the meetIng, the gnevor asked what would happen next. Management advIsed that they would take everythIng under advIsement and get back to the gnevor At the heanng, the gnevor testIfied that although she read the letters adVISIng that dIsCIplIne may result, she assumed that they were form letters In her VIew dIsCIplIne was not an optIOn SInce the meetIngs only dIscussed potentIal "solutIOns" On cross-eXamInatIOn, however she acknowledged that the allegatIOns concermng her performance were senous and that she knew that dIsCIplIne mIght result, "as the letters say" 6 On November 10 2004 the gnevor was Issued a letter of suspenSIOn, dated November 2, 2004 based on the audIt findIngs In the letter the Employer wIthdrew one audIt findIng based on the gnevor's comments at the October 18 2004 meetIng, but found that the comments dId not matenally change the Employer's conclUSIOn on the other cases It concluded "Thus, consIdenng the facts and your responses, the Employer regrettably has found that the allegatIOn as stated above IS substantIated." The partIes agreed that the November 10 2004 meetIng In whIch the gnevor was Issued the letter of dIscIplIne was not a "dIsCIplInary meetIng" SInce the decIsIOn had already been made Positions of the Parties The Umon acknowledges that the gnevor had umon representatIOn dunng the meetIngs on October 5 and October 18 It asserts, however that the Employer has a duty of fairness In regard to dIscIplIne matters, and that thIS duty reqUIres the Employer to advIse the gnevor In general terms, about the level of dIscIplIne It IS contemplatIng so that the gnevor and her umon representatIve have an opportumty to be heard on that Issue Instead, It argues, In thIS case, no mentIOn was made at all of dISCIplIne dunng the meetIngs, and, In fact, the gnevor was mIsled because the dISCUSSIOns centered on "solutIOns" AccordIngly In ItS VIew the dISCIplIne Imposed should be vOId ab initio In support, the Umon CItes to Re Nicholson and Haldimand-Norfolk Regional Board of Commissioners of Police [1978] 88 D.L.R. (3d) 671 (S C C) Knight and Indian Head School Division No 19 [1990] 1 S C.R. 653 (S C C) OPSEU (Kent) and Ministry of Correctional Services (1989) GSB No 549/87 (Roberts) ONA and Windsor Western Hospital (Rivervieyt, 7 Unit)[1984] O.L.R.B (Nov) 1643 (Burkett) OPSEU (Grummett) and Ministry of Financial Institutions (1991), GSB No 1656/90 (Keller) Re Ontario Hydro and POYf,er Workers Union (McNally Grievance) [1998] O.L.AA No 230 (Burkett)(qUIcklaw) OPSEU (Thomsen) and Ministry of Solicitor General and Correctional Services(1997), GSB No 205/96 (Bnggs) OPSEU (Myers) and Ministry of the Attorney General (2003) GSB No 0270/03 (Abramsky) OPSEU (Tanevsky) and Ministry of Consumer & Commercial Relations (1989) GSB No 0763/88 (DIssanayake) The Employer asserts that there IS no duty of fairness In regard to dIscIplIne for umomzed employees covered by a collectIve agreement and a gnevance arbItratIOn procedure It asserts that there IS, In fact, no oblIgatIOn under the collectIve agreement or the Labour Relations Act to umon representatIOn In dIsCIplInary meetIngs at all It further asserts that even If there IS an oblIgatIOn to proVIde umon representatIOn, ItS oblIgatIOn was met In thIS case In ItS VIew far from depnvIng the gnevor of her nght to umon representatIOn, the Employer should be commended for ItS approach In thIS case It notes that It postponed the ImtIal meetIng, scheduled a second meetIng to proVIde the gnevor wIth tIme to respond to the audIt findIngs, and that It heard and fully consIdered the gnevor's responses It asserts that the gnevor was specIfically advIsed, several tImes, that dIsCIplIne mIght result from the audIt meetIngs and of her abIlIty to bnng umon representatIOn, whIch she dId. In the Employer's submISSIOn, the duty of fairness does not apply In a umomzed settIng. Even If It dId, the Employer submIts that It does not proVIde a nght to be advIsed, generally of the level of dIsCIplIne beIng contemplated. Rather In ItS VIew the duty of fairness only reqUIres notIce of the allegatIOns and an opportumty to respond whIch the gnevor had In thIS case In ItS 8 VIew the Umon's suggested approach IS unworkable and would turn meetIngs Into useless debates about the level of dIscIplIne to be Imposed. In support of ItS posItIOn, the Employer relIes on OPSEU (Tanevsky) and Ministry of Consumer and Commercial Relations supra. and Re Board of Education for the City of London and Ontario Secondary School Teachers Federation, District 4 (1984) 14 L.AC (3d) 17 (Brandt) Decision HavIng carefully consIdered the submIsSIOns of the partIes, I conclude that I cannot accept that the Employer breached any oblIgatIOn to the gnevor In terms of a duty of fairness or her nght to umon representatIOn under the collectIve agreement or the Labour Relations Act. The GSB has held that there IS no nght, under the collectIve agreement, to umon representatIOn dunng a pre-dIscIplInary meetIng. OPSEU (Tanevsky) supra at p 9 CertaInly there IS a practIce to do so but there IS no provIsIOn for It under the collectIve agreement. Under the Labour Relations Act the nght to umon representatIOn IS lImIted to "a meetIng called by the employer to charge an employee wIth mIsconduct or to Impose dIscIplIne" Windsor Western Hospital, supra at par 29 OPSEU (Kent) supra The GSB case law IS somewhat less clear as to whether or not a duty of fairness eXIsts In Re OPSEU (Grummet) and Ministry of Financial Institutions, supra, Vice Chair Keller deCIded that the Mimstry vIOlated the duty of fairness - descnbed as "mInImUm standards of procedural fairness" - when It termInated the gnevor wIthout proVIdIng her wIth the reasons for that decIsIOn or an opportumty to advance reasons to try to alter that decIsIOn. In that case 9 however no argument was made that the duty of fairness dId not apply - only that It had been met. In contrast, In OPSEU (Tanevsky) and Ministry of Consumer & Commercial Relations, supra, Vice-Chair DIssanayake upheld the dIscharge of an employee The Umon there had argued that the dIscharge was rendered Illegal because there was a lack of procedural fairness precedIng the dIscharge SpecIfically It was alleged that management, whIle purportIng to extend the nght to umon representatIOn, demed her that nght by delIberately refusIng to dIvulge the nature of the allegatIOns and purpose of the meetIng. The gnevor had been advIsed by her supervIsor that a senous allegatIOn had been made agaInst her that a meetIng had been scheduled for the folloWIng day and that she could have a umon representatIve at the meetIng. When the gnevor InqUIred about the allegatIOn, her supervIsor told her that she could not dISCUSS that. The gnevor attended the meetIng wIthout umon representatIOn. The Board reJected the fairness argument. It first noted that there IS no nght, under the collectIve agreement or any legIslatIOn, to umon representatIOn at a pre-dIsCIplInary meetIng. It then revIewed the duty of fairness, as set forth by the Supreme Court of Canada In Re Nicholson and Haldimand-Norfolk Regional Board of Commissioners of Police supra, whIch, the Board held, stands "for a general propOSItIOn that employers of publIc servants and persons holdIng publIc office are oblIged to exerCIse theIr dIsCIplInary powers fairly and In accordance wIth pnncIples of natural JustIce" (DeCISIOn at p 8) Based on the facts, the Board at p 10 determIned that "[a]ssumIng that the ratIOnale of Nicholson IS otherwIse applIcable to the gnevor we cannot conclude that she was demed the fairness and natural JustIce contemplated by the court." The Board relIed on the fact that the 10 gnevor was advIsed that there was a senous allegatIOn agaInst her and at the meetIng, the complete detaIls of the allegatIOns were related to the gnevor and she was gIven a full opportumty to respond. The Board further ruled at p 10 that "we cannot extend the Nicholson pnncIple as IncludIng a nght to umon representatIOn at a dIscIplInary meetIng." In so rulIng, the Board CIted a decIsIOn by ArbItrator Brandt In Re Board of Education for the City of London, supra, whIch held that It dId not appear that the fairness doctnne In Nicholson was Intended to apply to employees whose employment relatIOnshIp was governed by provIsIOns of a collectIve agreement, sInce the gnevance arbItratIOn process ensured a form of procedural protectIOn. AccordIngly OPSEU (Naversky) appears to conclude that the duty of fairness does not apply to employees covered by a collectIve agreement. Another Issue IS whether the duty of fairness applIes to a decIsIOn to suspend an employee In my VIew I need not deCIde whether the duty of fairness applIes because even If It dId apply I conclude that the Employer met the duty of fairness as descnbed by the Supreme Court of Canada. In Nicholson, supra, the employer had dIsmIssed a probatIOnary constable wIthout a heanng. He was not told why he was dIsmIssed, nor gIven any notIce, pnor to dIsmIssal, of the lIkelIhood of that or any opportumty to make representatIOns before hIS servIces were termInated. In a Judgement by ChIef JustIce LaskIn, the court held that the employer owed a general duty of fairness At pp 682-683 he stated In my OpInIOn, the appellant should have been told why hIS servIces were no longer reqUIred and gIven an opportumty whether orally or In wntIng as the Board mIght determIne, to respond. The Board Itself, I would thInk, would wIsh to be certaIn that It had not made a mIstake In some fact or CIrcumstance whIch It deemed relevant to ItS determInatIOn. Once It had the appellant's response, It 11 would be for the Board to decIde on what actIOn to take, wIthout Its deCISIOn beIng revIewable elsewhere, always premISIng good faith. Such a course proVIdes fairness to the appellant, and It IS fair as well to the Board's nght, as a publIc authonty to deCIde once It had the appellant's responses, whether a person In hIS posItIOn should be allowed to contInue In office to the pOInt where hIS procedural protectIOn was enlarged. Status In office deserves thIS mImmal protectIOn, however bnefthe penod for whIch the office IS held. SImIlarly In Knight v Indian Head School Division No 19 supra, the Court agaIn dealt wIth the duty of fairness and stated at p 685 that "the aim IS not to create 'procedural perfectIOn' but to achIeve a certaIn balance between the need for fairness, efficIency and predIctabIlIty of outcome" The key was whether the respondent "had knowledge of the reasons for hIS dIsmIssal and had an opportumty to be heard by the Board." If so the reqUIrement of procedural fairness would be satIsfied. In the present matter the gnevor clearly had knowledge of the reasons for the Employer's concerns She was advIsed In wntIng, several tImes, of the speCIfic allegatIOns and that dIsCIplIne mIght result. She was told that the audIts were a matter of senous concern to the Employer and the audIt results were presented. She was gIven tIme to reVIew them and an opportumty to refute them The eVIdence shows that she dId - speCIfically In regard to a number of cases and more generally In regard to audIt methodology and her accommodatIOn needs In both meetIngs, she was aided by a umon representatIve Although there IS some dIspute regardIng whether the gnevor was "cut off' from refutIng the speCIfic audIt findIngs, there IS no allegatIOn that the Employer faIled to meet any duty of fairness oblIgatIOn on thIS baSIS Rather the challenge IS lImIted to the Employer's faIlure to dISCUSS the Intended level of dIsCIplIne WIth the gnevor 12 There IS no suggestIOn In the case law however that the duty of fairness Includes a duty to dISCUSS the Intended level of dIscIplIne WhIle It IS true, as the Umon suggests, that In these cases the penalty dIscharge, was known, the key factors are notIce - beIng Informed of the allegatIOns - and an opportumty to be heard. In fact, the Court's deCISIOn In Nicholson seems to IndIcate that once the employer has the employee's response to the allegatIOns, "It would be for the Board to deCIde on what actIOn to take " SImIlarly here, under the collectIve agreement, It IS for the Employer to deCIde on dIsCIplIne subJect to the reqUIrement of Just cause Under ArtIcle 2, the employer has the nght to "dIsCIplIne, dIsmISS or suspend employees for Just cause " The IndIVIdual has the nght to gneve that deCISIOn and challenge It through the gnevance procedure It IS SImply too bIg a leap to Impose, based on the duty of fairness as It has been expressed by the Supreme Court of Canada and the Junsprudence, a reqUIrement that the Employer dISCUSS what level of dISCIplIne It Intends to Impose The duty of fairness does not extend so far At tImes, It may be prudent for an employer for dISCUSS the Intended level of dISCIplIne WIth an employee and the Umon, but there IS no legal reqUIrement to do so or any such nght under the collectIve agreement. In contrast, In Re Ontario Hydro supra, the collectIve agreement proVIded that "[b ]efore any penalty meted out to an employee that results In a loss of normal base earnIngs IS confirmed by Ontano Hydro the chIef steward wIll be Informed prevIOUS to the penalty beIng Imposed and be gIven an opportumty to present to Ontano Hydro any InformatIOn that may have been overlooked." Under thIS proVISIOn, the board of arbItratIOn ruled that the employer must proVIde the umon WIth notIce, full partIculars and an opportumty to dISCUSS the matter pnor to confirmIng the dISCIplIne There IS no SImIlar language or oblIgatIOn under the partIes' collectIve agreement. 13 Conclusion AccordIngly for all of the foregoIng reasons, the Umon's prelImInary obJectIOn to the ImposItIOn of the dISCIplIne IS demed. The heanng on the ments of the gnevance - and the other outstandIng gnevances - wIll proceed. Issued at Toronto thIS 22nd day of June, 2005 ~l~ ILl tI, 1.bfm{SC Randi H. Abramsky Vice-Chair