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Home My WebLink About1988-1489.Fitzgerald.89-07-21 , r.. I. ~. , ONTARIO EMPLOYES DE LA COURONNE , , , , CROWN EMPLOyEES DEL 'ONTARIO ~ ~ ,.. GRIEVANCE COMMISSION DE , 1111 SETTLEMENT REGLEMENT BOARD DES GRIEFS 180 DUNDAS STREET WEST TORONTO. ONTARIO. M5G 118 SUITE 2100 TELEPHONEITEUPHONE 180. RUE DUNDAS OUEST TORONTO. (ONTARIO) M5G 1Z8 BUREAU 2100 (416) 598-0688 1489/88 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before GRIEVANCE SETTLEMENT BOARD Between: OPSEU (Fitzgerald) Grievor - and - The Crown in Right of ontario (Ministry of Correctional Services) Employer Before: J W. Samuels Vice-Chairperson I. Freedman Member F Collict Member For the Grievor: M.A. Kuntz Grievance Officer Ontario Public Service Employees Union . For the Em~loyer: L Oudyk Staff Relations Officer Ministry of Correctional Services Hearing: June 21. 1989 I I~ ~ " 2 AWARD ----- On December 16~ 1988~ the gnevor receIved a copy of the followmg memorandum, whIch had been placed III hIS "PPR" file (Plannmg and Performance RevIew) ThIS IS to confirm our dIScussIon on thIS date~ when I verbally counselled you 10 regards to a ~ breach of secunty, that occurred on November 23, 1988 At approx 1900 hours, when you were absent from your assIgned post m the one wmg control room, whIle dayroom actiVItieS were m progress I trust that you have benefited from thIS dIscuSSIOn, and that a sImIlar occurrence WIll not happen m the future 11us memorandum WIll be placed on your P P.R fact file and WIll be reflected III your appraIsal, and then destroyed wIthm one year or less T Cocks, OM~15 The PPR file IS kept by the ShIft supervIsors for purposes of performance appraIsal Matenal m the PPR file IS not used for dIscIplmary purposes An employee's general personnel file IS kept elsewhere by the personnel department~ and disclplmary matters are recorded ill the personnel file, not in the PPR file The MInIstry has always mamtamed that thIS memorandum IS not dISCIplInary Nonetheless, the gnevor clauns that he hils been dISCiplIned and he says there was no Just cause for dIscIphne He asks thIS Board to order the MmIstry to remove the memorandum from the PPR file \. , 3 At the opemng of our heanng, the Mmlstry asked for a preltmmary rulmg that the memorandum was not dIscIplInary and that therefore thIS Board does not have JurisdIctIOn over thIS matter In our VIew, once the MmIstry says clearly that the memorandum IS not dIscIplmary, then It IS not dlscIplmary. Such a statement by the Mmlstry has the effect of ensurmg that the memorandum cannot be used m any subsequent dIscIplmary actIon as eVIdence of prevIOus dIscIplme For dIsclplmary purposes, the memorandum can serve only to show that the gnevor was told that certam conduct IS unacceptable It IS eVIdence that he was made aware of the employer's rules But the memorandum cannot be used to show that the employee dId anythmg wrong ThIS IS SImIlar to the SItuatIOn before the Board m Bacchus, 911/88 (Watters), where the Board held that the MmIstry IS bound by ItS own comrrlltment that a memorandum IS not dIscIplmary (at page 4) Furthermore, In our VIew, the memorandum on Its face IS not dIscIplmary It does not purport to pumsh the gnevor It does not suggest that It IS a first step III progreSSIve dlSCIplme (as was the case ill Hambhn, 63 and 68/82 (Samuels), where the Board ruled that the memoranda were dIscIplmary because they contemplated further dIscIplmary actIOn If the conduct was repeated) As the Board SaId ill Hamblzn , at page 12 A dIsclplmary commumcatIOn IS one whIch IS Intended to punIsh or chastIse the employee for faIlure to perform properly In a system of progressIve dISCIplme, one WIll oft~n see a very mmor dIsclplmary response to a failure, followed by progressIvely more severe responses to the same or SImIlar faIlures of performance Thus, the first dISClplmary actIon, though very mIld, has SignIficance beyond the Immediate purpose, because more severe dISClplme can be bUilt on the first for further such faIlures of performance 4 ThIS Board has no JunsdICtIC5n to reVIew every pIece of paper and every comment made by management concernmg an employee's performance The employer can gIve the employee gUIdance wIthout engagmg In dIscIplmary action As the Board saId III Nalk, 108/77 (Swmton)t at page 4 Only If the warnmg WIll have a prejUdICIal effect on the employee's pOSItIOn 10 future gnevance proceedmgs, m the sense that It IS bemg used to bmld up a record agamst the employee, can It be charactenzed as dIsclplmary actIon See also Bacchus, 911/88 (Watters) If Mr Fitzgerald IS unhappy WIth the memorandum Issued by Mr Cocks, he can wnte a reply whIch would be filed m the PPR file along WIth Mr Cocks'memorandum. The Board m Nazk suggested thIS procedure (at page 5)t relymg on snnIlar adVIce III Cloutler, 20/76 (Beatty) And here the MmIstry has mVIted Mr FItzgerald to submIt such a reply ThIS provIdes an opportumty for an open exchange between the supervIsor and the employee If the supervIsor's counsellmg memorandum IS later used as a baSIS for an adverse formal performance appraIsal, and the grIevor feels that the performance appraIsal IS not correct, a gnevance can be filed concernmg the appraIsal and thIS Board has JunsdIctIOn to entertam such a gnevance, pursuant to sectIOn 18(2)(b) of the Crown Employees Collectzve Bargaimng Act ~ w ; 5 In sum, we find that the memorandum whIch IS the concern of the gnevance IS not dIsclplmary and we do not have JUrIsdictIOn to hear the gnevance The Mmlstry's prehrrnnary objectIOn IS upheld. Done at London, Ontano, thIS 21st day of July , 1989 /1 <: J ~_.~ 1 / t:c {L-~ -x-- - / I Freedman, Member r;jC/ F Collict, Member