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Home My WebLink About2010-0490.Dubuc.11-07-06 DecisionCommission de Crown Employees Grievance UqJOHPHQWGHVJULHIV Settlement Board GHVHPSOR\pVGHOD Couronne Suite 600 Bureau 600 180 Dundas St. West 180, rue Dundas Ouest Toronto, Ontario M5G 1Z8 Toronto (Ontario) M5G 1Z8 Tel. (416) 326-1388 7pO Fax (416) 326-1396 7pOpF GSB#2010-0490 UNION#2010-0453-0008 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN Ontario Public Service Employees Union èÏÔÎÏ (Dubuc) - and - The Crown in Right of Ontario (Ministry of Community Safety and Correctional Services) Employer BEFORERandi H. Abramsky Vice-Chair FOR THE UNIONDavid Wright Ryder Wright Blair & Holmes LLP Barristers and Solicitors FOR THE EMPLOYERJennifer Richards Ministry of Government Services Labour Practice Group Counsel HEARINGJune 14, 2011. CONFERENCE CALLJune 27, 2011. - 2 - DECISION [1]On March 3, 2010, a grievance was filed by the grievor, Stephane Dubuc, alleging that he had been disciplined without cause. This was based on a letter of reprimand that had been issued to him by his employer, the Office of the Fire Marshal, on the same date. On June 11, 2011, four days before the hearing in this matter, the letter of reprimand was rescinded by the Employer and a letter of counsel was substituted, backdated to March 3, 2010. On this basis, the Employer has moved to dismiss the grievance, contending the matter has become moot. The Union opposes WKH(PSOR\HU¶VPRWLRQ7KLV'HFLVLRQDGGUHVVHVZKether the issues raised in the grievance have become moot. Facts [2])RUWKHSXUSRVHVRIWKH(PSOR\HU¶VPRWLRQWKHparties agreed to proceed based on facts DVRXWOLQHGLQWKHSDUWLHV¶RSHQLQJVWDWements and the documentary evidence. [3]On June 25, 2009, the Employer received an email from the Ottawa Fire Services (OFS) outlining a number of complaints concerning the conduct of the grievor. The grievor was notified of this complaint on September 16, 2009. The Employer conducted a detailed investigation which included interviews with VHYHQPHPEHUVIURPWKH2)6DQGWKHJULHYRU¶V supervisor. The grievor provided a detailed response to the allegations on December 10, 2009. On December 15, 2009, the grievor, along with his union representative, met with management to discuss the investigation. - 3 - [4]In early January 2010, the grievor was temporarily removed from active investigations and the on-call rotation, and assigned to administrative duties and report writing. [5]On March 3, 2010, a formal letter of discipline was issued to the grievor. The letter outlined the allegations, and concluded that the alleJDWLRQV³KDYHEHHQVXEVWDQWLDWHG´7KHOHWWHU then states: In determining the appropriate penalty in this matter, I have considered the nature and gravity of each of the allegations, your employment record and the manner in which you dealt with each allegation. It is unacceptable for you to communicate with any Stakeholder in a manner that is disrespectful or unprofessional. The Office of the Fire Marshal cannot condone or tolerate this type of behavior. As such, it is my decision to issue a formal letter of reprimand in this instance. Failure to correct this behavior in the future will result in further disciplinary action up to and including dismissal. [6]In addition, the letter required the grievor to attend two days of training, noting that the 2IILFHRIWKH)LUH0DUVKDO³SURvides support in the form of education, training and coaching RSSRUWXQLWLHV´ [7]The grievor took part in the required training and on March 19, 2010, he was again assigned to conduct fire investigations and resume the on-call rotation, except with the OFS. 7KDWZDVGHOD\HGSHQGLQJ³DQRSSRUWXQLW\WRPHHWZith the Ottawa Fire Services to establish a Memorandum of Understanding and prRWRFROV«´7KHSDUWLHV¶GLVSXWe the meaning of this email and whether the results of the investigation (and the discipline imposed on the grievor) were conveyed to the OFS. The grievor resumed working with the OFS in May 2010. [8]As noted, the grievor filed a grievance concerning the letter of reprimand on March 3, DOOHJLQJWKDWKHKDGEHHQ³GLVFLSOLQHGZLWKRXWFDXVH´$VDUHPHG\KHDVNHGWRKDYH³DOO - 4 - UHFRUGVRIGLVFLSOLQHPHDVXUH«EHUHPRYHGIURPall files held by the MiniVWU\´DQG³WREHPDGH ZKROH´$WWKHVHFRQGVWDJHPeeting, the issue of damages for loss of reputation was raised by the Union. [9]On June 11, 2011, the Employer rescinded the March 3, 2010 letter of reprimand and substituted a letter of counsel, backdated to March 3, 2010. The letter of counsel was far more gentle in tone and its stated LQWHQWZDV³WRFODULI\H[SHFWDWLons as to your performance and conduct in the workplace and is QRWGLVFLSOLQDU\LQDQ\ZD\´It still concluded that his ³FRPPXQLFDWLRQZLWKVWDNHKROGHrs was disrespectful and unprRIHVVLRQDO´DQGWKDWDVD representative of the Office ofWKH)LUH0DUVKDO³\RXKDYHDUHVSRQVLELOLW\WRXSKROGWKH reputation and credibility of this RIILFH´,WFRQWLQXHG³,QIXWXre, you are expected to be more mindful of this responsibility when interacting wLWKVWDNHKROGHUV´7KHOHWWHUQRWHGWKDWLWZRXOG QRWEHSODFHGLQWKHJULHYRU¶VFRUSRUDWHILOH,W also included the two days of training, again QRWLQJWKDWWKH³RIILFHRIWKH)LUH0DUVKDOOSURYides support in the form of education, training DQGFRDFKLQJRSSRUWXQLWLHV´ Positions of the Parties [10]7KHSDUWLHV¶DJUHHGWKDWWKHDSSOLFDEle law concerning mootness is based on Re Borowski th v. Canada (Attorney-General) (1989), 1 S.C.R. 342, 57 D.L.R. (4) 231 (S.C.C.). They GLVDJUHHKRZHYHUZKHWKHUD³OLYHFRQWURYHUV\´VWLOOH[LVWV [11]The Employer contends that with the removal of the letter of reprimand, there is no ORQJHUD³OLYHFRQWURYHUV\´WRGHFLGH,WVXEPLWVWKDWWKHEDVLVRIWKHJULHYDQFH±WKHGLVFLSOLQDU\ OHWWHURIUHSULPDQG±KDVEHHQZLWKGUDZQDQGDQRQdisciplinary letter of counsel has been issued - 5 - instead, over which the Board has no jurisdiction. In support, it cites to Re OPSEU (Fitzgerald) and Ministry of Correctional Services (1989) GSB No. 1489/88 (Samuels) and Re OPSEU (Black) and Ministry of Revenue (1990), GSB No. 885/90 (Dissanayake Vice Chair). [12]The Employer further asserts thDWWKHJULHYRU¶VFODLPIRUGDPDJHVIRUDOOHJHGORVVRI reputation and mental distress cannot remain where the basis of the claim has become moot. It VXEPLWVWKDWWKHUHPXVWEHD³KRRN´LQWRWKe collective agreement for such damages to be entertained, and that without the GLVFLSOLQDU\³KRRN´RIDOHWWHURIUHSULPDQGWKHJULHYRU¶VFODLP for damages must be dismissed. Without the discipline, it submits, there is nothing left for the Board to decide. [13]In support, the Employer cites to Re Borowski, supra; Re Donna Lee Jones and Ministry of Correctional Services (1995), PSGB No. P/0009/92 (Willes); Re OPSEU (Union Grievance) and Ontario Realty Corporation/Management Board Secretariate (1998), GSB No. 2024/97 (Abramsky). The Employer also asserts that this Board should encourage the parties to resolve their disputes and that no useful purpose would be served by continuing the hearing. [14]The Union asserts that the grievance is not moot. It contends that the letter of counsel is VWLOOGLVFLSOLQDU\DVLWZDV³LQWHQGHGWRSXQLVKor chastise the employee for failure to perform SURSHUO\´FLWLQJRe Hamblin, GSB 63 and 68/82 (Samuels) quoted in Re OPSEU (Fitzgerald), supra at p. 3. This is self-evident, it asserts, based on the content of the letter. The Union also contends that half the discipliQHLPSRVHGRQWKHJULHYRU±WKHWZRGD\VRIPDQGDWRU\WUDLQLQJ± remains in the letter of counsel, DQGWKXVUHPDLQVD³OLYHLVVXH´ - 6 - [15]The Union further contends that the fact that the Employer withdrew the letter of reprimand on June 11, 2011 does not negate the fact that it issued it in March 2010, or the FRQVHTXHQFHVWKDWIROORZHGLQFOXGLQJWKHGDPDJHDOOHJHGO\FDXVHGWRWKHJULHYRU¶VUHSXWDWLRQ and the mental distress allegedly caused by the investigation and the imposition of the letter of reprimand. These alleged damages, it asserts, flRZHGIURPWKH(PSOR\HU¶VDFWLRQVDWWKHWLPH DQGZHUHQRWHOLPLQDWHGE\WKH(PSOR\HU¶VVXEVHTXHQWUHPRYDORIWKHOHWWHU7KHVHLVVXHVLW DVVHUWVUHPDLQ³OLYHFRQWURYHUVLHV´,QVXSSRUWWKH8QLRQFLWHVWRRe OPSEU (Union Grievance) and Ministry of Community Safety and Correctional Services/Ministry of Children th and Youth Services (2010), 196 L.A.C. (4) 409 (Abramsky); Re OPSEU (Ferraro et al.) and Ministry of Community and Social Services (2007), GSB No. 2000-1200 (Mikus): Re OPSEU (Union Grievance) and Ministry of Correctional Services (2002), GSB No. 0973/01 (Abramsky). The Union urges the Board to proceed with caution in a case of mootness GXHWRWKH(PSOR\HU¶V action, as stated in Re OPSEU (Union Grievance) and Ontario Realty Corporation, supra at pp. 15-16. [16]In reply, the Employer asserts that the Board has recognized that letters of counsel may be corrective in nature, without WKHQEHFRPLQJ³GLVFLSOLQDU\´,W also asserts that the training was remedial in nature and not disciplinary. Reasons for Decision [17]Having carefully considered the facts, the paUWLHV¶DUJXPHQWVDQGWKHFDVHODZSURYLGHG, conclude that the issue of the alleged unjust discipline has becoPHPRRWEXWWKDWWKHJULHYRU¶V claim for damages for alleged loss of reputation and mental distressDUHVWLOO³OLYHFRQWURYHUVLHV´ - 7 - [18]The leading Canadian case concerning mootness is Re Borowski v. Canada (Attorney General), supra. In that case, an action was brought claiming that the therapeutic abortion provisions of the Criminal Code violated the Canadian Bill of Rights and the Canadian Charter of Rights and Freedoms.Before the case could be heard by the Supreme Court of Canada, the challenged abortion provisions were struck down by the Court in DQRWKHUGHFLVLRQDQGWKXV³D th serious issue existed as to whether WKHDSSHDOZDVPRRW´ - 8 - [20]InBorowskiWKH&RXUWGHWHUPLQHGWKDWWKHUHZDV³QRORQJHUDOLYHFRQWURYHUV\RU concrete dispute as the substratum of Mr. BorowsNL¶VDSSHDOKDVGLVDSSHDUHG´,GDW 7KH EDVLVRIWKHDSSHDO±WKDW certain sections of the Criminal CodeZHUHXQFRQVWLWXWLRQDO±ZDVPRRW because the disputed provisions had already beenVWUXFNGRZQLQDQRWKHUFDVHDQGWKXV³WKH UDLVRQG¶HWUHRIWKHDFWLRQKDVGLVDSSHDUHG´,G [21]Based on the facts, as presented, I conclude that there is noORQJHUD³OLYHFRQWURYHUV\´ concerning the letter of discipline. The discipline has been rescinded and a letter of counsel has been imposed. In Re OPSEU (Black), supra at p. 6, the Board stated: It is common ground that this grievance is arbitrable only if the memorandum in question FDQSURSHUO\EHFKDUDFWHUL]HGDV³GLVFLSOLQH´7KLV%RDUGZKLOHJUDQWHGMXULVGLFWLRQRYHU disciplinary matters, has no overall power of review of management interaction with its employees. [22]In the Black case, a letter of counsel was issued in regard to an incident in which the JULHYRU³UHIXVHGWRIROORZDQLQVWUXFWLRQJLYHQWR\RXE\\RXUPDQDJHU«´7KHOHWWHUWKHQ reviewed the discussion that took place in a meeting to review what had occurred and noted that ZKLOHDFFHSWLQJWKHJULHYRU¶VH[SODQDWLRQPDQDJHPHQW³HPSKDVL]HGWKHVHULRXVQHVVRIZKDW\RX had done and that any future incident of this nature will be considered insubordination and appropriate disciplinary action wiOOEHWDNHQ«´:KHQWKHJULHYRUUDLVHGFRQFHUQVDERXWWKH letter, management stated that it was non-disciplinary and was intended to confirm what had been discussed. In testimony at WKHKHDULQJWKHJULHYRU¶VPDQDJHUVWDWHGWKDWKH³ZDQWHGWR ensure that the grievor understood what was expected of him inWKHIXWXUH´DQGWKDWWKHPHPR ZDV³LQWHQGHGWRFRQILUPWKHGLVFXVVLRQIRUWKHJULHYRU¶VJXLGDQFH´DQGWKDW³LWZDVQRWLQWHQGHG WREHGLVFLSOLQDU\´ - 9 - [23]The Board concluded that this memo was not disciplinary and did not punish the grievor IRUKLVFRQGXFW,QVWHDGLW³H[SUHVVHGFRQFHUQVDERXWKLVFRQGXFW´DQG³H[SODLQHGWRKLPWKDWKH VKRXOGQRWHQJDJHLQVLPLODUFRQGXFWLQWKHIXWXUH´Re OPSEU (Black), supra at p. 7). It also warned him that any future incident would be considered insubordination and subject to GLVFLSOLQH7KH%RDUGKHOGWKDWWKLVGLG³QRW make the meeting or the memorandum disciplinary LQQDWXUH´,PSRUWDQWWRWKH%RDUGZDVWKHIDFWWKDWWKHPHPRZDVQRWSODFHGLQWKHJULHYRU¶V personnel file and was stated to be non-disciplinary. The Board acknowledged that some employees might not like verbal or written communication by supervisors about their conduct or performance, but held that thH³(PSOR\HUGRHVKDYHWKHULJKt to correct employees through guidance, counselling or even warning wLWKRXWHQJDJLQJLQGLVFLSOLQDU\DFWLRQ´ [24]As in Re OPSEU (Black),supra, with the letter of reprimand rescinded, the issue of the %RDUG¶VMXULVGLFWLRQ±DWOHDVWLQSDUW±UHVWVRQZKHWKHUthe letter of counsel may be considered to be disciplinary. My review of the letter of counsel establishes that the letter is not disciplinary. First, on its face, the letter states that it is non-disciplinary and will not be placed LQWRWKHJULHYRU¶VFRUSRUDWe file. As stated in Re OPSEU (Fitzgerald), supraDWS³>2@QFHWKH Ministry says clearly that the memorandum is not disciplinary, then it is noWGLVFLSOLQDU\´ Further, the stated purpose of WKHOHWWHUZDV³WRFODULI\H[SHFWDtions as to your performance and FRQGXFWLQWKHZRUNSODFH´7KHletter clearly does conclude WKDWWKHJULHYRU¶VFRPPXQLFDWLRQ with stakeholders was disrespectful and unprofessional and that, in the future, he was expected to be more mindful of his responsibilities in regard to interacting with stakeholders. This, however, is very similar to the letter in Re OPSEU (Black), supra. It is an attempt to correct performance - 10 - ±QRWWKURXJKIRUPDOGLVFLSOLQHEXWWKURXJKJXLGDnce and counselling. It does not establish that WKHJULHYRUKDVEHHQ³GLVFLSOLQHG´EXWRQO\WKDWKH³ZDVtold that certain conduct is XQDFFHSWDEOH´Re OPSEU (Fitzgerald), supra at p. 3. [25]In terms of the required training, which was maintained in the letter of counsel, I FRQFOXGHWKDWVXFKWUDLQLQJLVDOVRQRW³GLVFLSOLQH´$OWKRXJKWUDLQLQJZDVLPSRVHGLQWKH original letter of reprimand, it clearly was separate frRPWKH³GLVFLSOLQH´SDUWRIWKHOHWWHU,WZDV at the time as well as in the letter of counsel, paUWRIWKH0LQLVWU\¶VDWWHmpt to provide education, training and coaching opportunities to address thHJULHYRU¶VFRPPXQLFDWLRQwith stakeholders. The training was remedial, not disciplinary. ThHWUDLQLQJPD\ZHOOKDYHIHOWOLNH³SXQLVKPHQW´ to the grievor, but its purpose was not to punish or chastise, but to educate. [26],FRQFOXGHKRZHYHUWKDWWKHJULHYRU¶VFODLPfor alleged damages is not moot. The claim for alleged damages for loss of reputation and mental distress stem from the original investigation and discipline. The fact that the Employer subsequently rescinded the discipline does not eliminate the alleged impact of its action, which occurred at the time. Whether the grievor can, in fact, establish such losses is a different question.Right now, the issue is whether WKDWFODLPLVVWLOOD³OLYHFRQWURYHUV\´,FRQFOXGHWKDWLWLV [27]InRe OPSEU (Union Grievance) and Ministry of Correctional Services, supra, the 8QLRQFKDOOHQJHGWKH(PSOR\HU¶VUHTXLUHPHQWWKat employees at the Toronto Jail produce a medical certificate of illness based on suspected group abuse of sick leave, rather than individual suspicion of abuse. The Union sought a cease aQGGHVLVWRUGHUDGHFODUDWLRQDQG³>D@Q\RWKHU - 11 - UHPHG\WKDWWKH%RDUGVHHVILW´%HIRUHWKe hearing, management announced that it ceased application of that policy. Then, at the first day of hearing, the Employer acknowledged that its practice violated the collective agreement and that all employees who lost pay as a result would be reimbursed. The Employer then took the position that the grievance was moot. As of the date of the hearing, however, the issue of compensation had not been fully resolved, and the grievance, in part on this basis, was found not to be moot. [28]Similarly, in Re OPSEU (Ferraro et al.), supra, a grievance was filed concerning the assignment of responsibilities. Through an agreement of the parties, the position in question was eventually reclassified. The Employer argued that the grievance was therefore moot, but the %RDUGGLVDJUHHGUXOLQJLQSDUWWKDWEHFDXVH³WKHparties expressly agreed to disagree on the issue RIUHWURDFWLYHFRPSHQVDWLRQLIDQ\IRUQHZFODVVLILFDWLRQVWKDWZHUHFUHDWHGE\VHWWOHPHQW´WKDW LVVXH³FRQWLQXHVWREHDOLYHFRQWURYHUV\EHWZHHQWKHSDUWLHV´ [29]In this case, although the underlying issue (the letter of discipline) has been rendered PRRWE\WKH(PSOR\HU¶VUHVFLVVLRQRIWKHGLVFLSOLQHWKHJULHYRU¶VFODLPIRUGDPDJHVIORZLQJ from that original discipline has not been resolved. In the words of the Court in Re Borowski, supra, a decision on that issue will resolve some controversy which affects the rights of the SDUWLHV7KHUHLVVWLOOD³OLYHFRQWURYHUV\´FRQFHUQLQJDOOHJHGGDmages which affects the rights of the parties. [30]In so ruling, I do not agree with the Employer that because it rescinded the discipline WKHUHLVQRORQJHUD³KRRN´LQWRthe collective agreement for the Board to have jurisdiction over - 12 - the alleged damages to the grievor in the context of this case. Without question, there originally ZDVD³KRRN´LQWRWKHFROOHFWLYHDJUHHPHQW±IRUPDOGLVFLSOLQHKDd been issued and the grievor challenged that discipline as being without just cause. The alleged damages flow directly from the imposition of that discipline. As noted in Re OPSEU (Union Grievance), supra at pp. 15-16: 6RPHFDXWLRQ«LVFOHDUO\ZDUUDQWHGEHFDXVHRIWKHFRQWUROWKHHPSOR\HUKDVWRDOWHUWKH circumstances upon which a grievance is founded and thereby avoid a decision on the PHULWV«>7@KHUHPD\EHWLPHVZKHQGHVSLWH a substantial change in circumstances the grievor or union has a continuiQJLQWHUHVWLQDGHWHUPLQDWLRQRIWKHJULHYDQFH«(DFKFDVH PXVWEHGHFLGHGRQLWVSDUWLFXODUIDFWV« In my view, this is a case where the grievor has a continuing interest in a determination of whether he has suffered any damageVDVDUHVXOWRIWKH(PSOR\HU¶Vactions. Neither that interest, nor his claim, was extinguished when the Employer rescinded the original discipline. [31]Finally, I want to distinguish the case of Re Donna Lee Jones, supra. In that case the grievor was issued a letter of reprimand which she grieved. Her grievance sought removal of the letter, a letter of apolRJ\DQGPRQHWDU\GDPDJHVIRU³VWUHVVJULHIDQGSHUVRQDOVXIIHULQJ«´%\ the time of the hearing, more than three years had passed and the letter had been removed from her personnel file. The Employer argued that the PSGB had no jurisdiction because the case was moot, and further that the Board had no jurisdiction to award those types of remedies. Without addressing the latter issue, the Board determined that the grievance was moot because the letter KDGEHHQUHPRYHGIURPWKHJULHYRU¶VUHFRUG - 13 - [32]Counsel for the Union in the instant case noted that the law had substantially changed with respect to the issue of damages since the issuance of that decision in 1995. I agree. Accordingly, I do not conclude that the decision in Re Donna Lee Jones, supra, is determinative, nor does it require dismissal of the instant grievance. Conclusion: For all of the foregoing reasons, I conclude: 1.The grievance as it relates to the discipline imposed on the grievor is moot. 2.The grievance as it relates to the alleged damages for loss of reputation and mental distress is not moot. 3.I remain seized. Dated at Toronto this 6th day of July 2011. Randi H. Abramsky, Vice-Chair