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HomeMy WebLinkAbout2006-2241.Union.07-07-25 Decision Crown Employees Grievance Settlement Board Suite 600 180 Dundas Sl. West Toronto, Ontario M5G 1Z8 Tel. (416) 326-1388 Fax (416) 326-1396 Commission de reglement des griefs des employes de la Couronne Nj ~ Ontario Bureau 600 180, rue Dundas Ouest Toronto (Ontario) M5G 1Z8 Tel. : (416) 326-1388 Telec. : (416) 326-1396 GSB# 2006-2241 UNION# 2006-0369-0038 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT BETWEEN BEFORE FOR THE UNION FOR THE EMPLOYER HEARING Before THE GRIEVANCE SETTLEMENT BOARD Ontario Public Service Employees Union (Union Grievance) - and - The Crown in Right of Ontario (Ministry of Community Safety and Correctional Services) Felicity D. Briggs Peter Shklanka Grievance Officer Ontario Public Service Employees Union David Strang Senior Counsel Ministry of Government Services June 15,2007. Union Employer Vice-Chair 2 Decision Prior to November of 2006, the government of Ontario contracted Management and Training Corporation Canada ("MTCC") to operate its jail in Penetanguishene, Central North Correctional Centre ("CNCC"). MTCC employed the majority of employees working at the jail. However, it sub-contracted out some of the work, such as nursing services to First Corrections Medical ("FCM"). When the Provincial government decided to take over the operations of CNCC the parties negotiated a Memorandum of Agreement dated September 18, 2006 concerning the terms and conditions of the transfer of operations. In that document the parties agreed to a dispute resolution mechanism for mediation-arbitration. As a result of that provision I asked to assist the parties with the few remaining disputes arising from the repatriation of CNCC into the Ontario Public Service. The parties were successful at mediating some of the remaining disputes. However, there are a few outstanding matters. The first issue addressed by the parties is regarding offers of employment. During the discussions between the parties in preparing for expeditious arbitration of this matter, it became apparent that the parties were disparate on the standard of review appropriate in these circumstances. In a recently issued decision, I determined that in these unique circumstances the Employer did not have its usual broad discretion arising from Article 2 of the Collective Agreement, to hire employees subject only to reasonableness and bona fides. I determined that the criteria as set out in the Memorandum of Agreement were to be taken into account in deciding these disputes. 3 The Memorandum of Agreement contemplates a variety of conditions concerning the transfer of operations. The relevant provisions for the purposes of the instant dispute are: Whereas the parties wish to effect a successful transfer of operations of Central North Correctional Centre to the Ontario Public Service (OPS) as of the transfer date on or about November 9, 20006; Therefore the parties agree to the following prOVISIOns on a without prejudice and precedent basis: 1.0 Introduction 1.1 This agreement is related exclusively to the transfer of operations of the Central North Correctional Centre (CNCC) to the OPS, specifically to the Ministry of Community Safety and Correctional Services (MCSCS). 1.2 It is understood that the term "employees" refers to employees of MTCC who work at CNCC and who are hired in accordance with this agreement into the OPSEU represented positions at CNCC once it is transferred to the OPS. 2.0 Expression of Interest 2.1 Employees will be asked to submit a written expression of interest within five (5) working days of receiving an information package (consisting of a list of applicable positions, salaries and classifications) and consent form from MCSCS. The consent form must be signed and returned with the expression of interest. The purpose of the consent form is to transfer the employees' personnel files to allow the Employer to determine whether or not the employees meet the screening criteria and qualifications of the position, perform security/CPIC checks in accordance with MCSCS policies, and ensure eligibility to work in Canada. Screening criteria will include a review of personnel files for significant substantiated discipline. It will also include a review of short-term sick leave usage over the last 12 months to ensure that usage is on par with the Ministry average. Justifiable absenteeism will not be considered. 4 2.2 The Employer will advise the Union if it determines that a job offer will not be made based on a review under 2.1 above. 2.3 Employees who have been previously dismissed with cause from the OPS will not be offered positions at CNCC. At our second day of hearing the parties addressed the matter of the Employer's failure to offer employment to two former employees of MTCC and FCM. I will deal with each of these matters in turn. SARAH COLBERT Sarah Colbert is a Registered Practical Nurse who has been practicing for approximately seven years. She began working with First Correctional Medical July 23, 2003 on a part time basis becoming full time in the spring of 2004. Ms. Colbert was denied an offer of employment by the Ministry because she received a "Written Warning" regarding sleeping on the job dated May 25, 2006; a "Final Written Warning" regarding sleeping on the job dated May 25, 2006; and a "Written Warning" regarding "numerous complaints from co-workers" about taking "extended breaks". In addition to the above disciplinary letters I was provided with Memos of Coaching dated April 5, 2004, October 6, 2004, October 7, 2004, December 6, 2005 and August 18, 2006. These coaching memoranda dealt with issues ranging from scheduling requests to the correct procedure for the processing of doctor's orders. The Union submitted that Ms. Colbert should have received only one Warning Letter on May 25, 2006. Both letters considered the same allegations and therefore 5 she was disciplined twice for the same offence. It is a well established labour relations principle that double jeopardy cannot stand. It was the Union's position that the Memos of Coaching cannot be properly considered in this matter. Only "significant discipline" is to be taken into account and by their very nature, coaching memos are not discipline. The policy manual of FCM contemplated that memos of coaching were to be given "to enhance job performance, or to prevent a potential problem from growing in scope of (sic) significance." Such discussions were to be conducted with a "problem-solving approach". Moreover, a review of the policies of FCM that governed Ms. Colbert at the time she received the above letters stated, "typically, written warnings are in effect for 90 calendar days." Therefore, given that the letters of May 25, 2006 should not have been on Ms. Colbert's file at the time of the transition review. Further, the policies regarding discipline contain an extensive progressIve discipline procedure. A review of that process makes clear that any action taken regarding Ms. Colbert falls far short of the full spectrum available to the Employer at the time and therefore cannot now be seen by this Board to be "significant". The Employer's view of Ms. Colbert is considerably different from that of the Union. Given that she is a licensed health care practitioner, it is certainly significant that she obtained three letters of warning and five letters of coaching (two of which involved clinical issues) in the thirty month period that she was with FCM. Further, a review of the reasons giving rise to those letters must be taken into account. A review of the incidents indicate that she slept on the job once or twice and she failed to process medical orders which caused an inmate to have treatment postponed for three days. These facts must cause considerable alarm with the Board. 6 The Employer asserted that rather than consider the policies in place at FCM, this Board should be guided by the collective agreement that governed the working conditions for Ms. Colbert. It stated, "Letters of reprimand, suspension or other sanction shall remain the employee's personnel file. However, memoranda of coaching and documented verbal warnings regarding non-clinical issues shall not be used for termination purposes, if the employee has remedied the noted deficiency without repeating the offence for one year. Disciplinary actions related to clinical issues may be considered at any time and must remain in the permanent personnel file." Therefore, all of the letters before this Board were properly in Ms. Colbert's file and should be taken into account. In the Employer's view, any of the incidents referred to in the letters should be sufficient to be considered "significant" and therefore Ms. Colbert should not be given an offer of employment. I have considered the documents provided including the policies and collective agreement that governed Ms. Colbert while she was employed by FCM. After consideration, I am of the view that Ms. Colbert should be given a job offer. While I appreciate that management of FCM felt it necessary to "coach" Ms. Colbert regarding some clinical and non-clinical issues, if these were serious or significant issues surely she would have received letters of warning or more harsh discipline. That is not to say that I have not taken those memoranda into account. However, in my view, they are neither "significant" nor "discipline". The Written Warnings, are, without doubt, discipline. The FCM warned Ms. Colbert about sleeping on the job and about taking extended breaks. It should be noted that there is nothing to indicate that Ms. Colbert disagreed with either letter 7 dated May 25, 2006. However, at the time she wrote a response to the letter regarding "extended breaks" explaining that she had "combined" various breaks to taken extended breaks and that there was no policy contrary to that activity at the time she received her warning. Irrespective of whether Ms. Colbert has one or two warnings on May 25, 2006, there is not "significant substantiated discipline" on her personnel file that would have me find for the Employer. ROSALIE MARTINEAU Ms. Martineau was a Correctional Officer with MTC. I was given the relevant portions of her personnel file and a written statement. In October of 2003 Ms. Martineau was suspended from work for two days as the result of reporting to work having consumed alcohol. She reported late for work having been involved in a car accident. She did not grieve this discipline. In April of 2005 she received an "unsatisfactory performance critique" regarding her failure to report her absence from work due to illness in a timely and appropriate fashion. Also included in the documents before me are two letters written in 2004 from the MTCC Facility Administrator thanking Ms. Martineau for her professionalism and diligent service. Finally I have three performance appraisals given to Ms. Martineau. In these appraisals Ms. Martineau is told that she is: . A fine asset to the staff . A definite leader . A hard worker . A positive team member . A quick study . Motivated and self -disciplined . Work extremely well with others . Consistently demonstrates ability to supervise inmates 8 . Have good work habits It was the Employer's VIew that Ms. Martineau was not gIven an offer of employment because she has significant discipline in her file. Indeed, not only is a two-day suspension of considerable concern but the reason for the discipline is of particular import. Ms. Martineau did not challenge the discipline. There can be no doubt that this discipline is properly on her file and is both substantiated and significant and allows the Employer to withhold an offer of employment. The Employer contended that the unsatisfactory performance critique was also a matter of concern. Ms. Martineau failed to report to work and she failed to report when she would be returning. This must have caused much chaos in the workplace. This type of activity must be seen as a critical matter because it goes to the heart of whether the employer can carry out its 24 hour a day 7 day a week mandate. The Union submitted that Ms. Martineau made a mistake in 2003 and she admitted her error and took her penalty. She had no repeat of her offence and it would be wrong if she were denied an offer of employment given the rest of her work record. Indeed, it was said that by general arbitral standards this suspension is stale dated and ought not be given weight. It is noteworthy that the collective agreement that governed Ms. Martineau with MTCC stated that any "disciplinary actions or negative performance letters will not be considered for the purpose of progressive discipline after one (l) year from the date of the offence, provided that there is no repeat offences of the same." Regarding the performance critique the Union conceded that Ms. Martineau could have and probably should have done things differently. However, her sleeping in 9 one morning and failing to properly report her absence is not a mistake of the gravity that should cause an end to her career. I have taken into account the documents and the submissions of the parties regarding Ms. Martineau and I am led to the inevitable conclusion that she should be given an offer of employment. While I accept that her two-day suspension was a matter of concern, the circumstances giving rise to the discipline occurred three and a half years prior to the hearing before me. Further, the admitted offending conduct was not repeated. Finally, I find that the unsatisfactory performance critique was not significant. I remain seized in the event there are implementation difficulties arising from this decision. Dated in Toronto this 25th day of July, 2007. I