The URL can be used to link to this page

Home My WebLink About1977-0108.Taharally.78-10-17Between:. c Before: For the Grievor: . 3 I108/77 IN THE MATTER OF AN ARBITRATION Under The CR;WN EtiPLOYEES COL;ECTIVE EARGAINING' ACT \ Before THE GRIEVANCE SETTLEMENT BOARD ., Ms. Doreen Naik (Now Taharally) '1 ; And The Crowns in,Right of Ontario Ministry of The.Attorney General ', . ,^. ,^. Professor Katherine Swinton Professor Katherine Swinton Vice-Chairman Vice-Chairman Mr. Victor Harris Mr. Victor Harris Member Member Mr. Henry Weisbach Mr. Henry Weisbach Member Member . . . . .- .- + . + . Mr. Richard.Nabi. Grievance Officer Ontario Public Service Employees Union '.1901 Ybnge Street ‘; Toronto, Ontaiio For the Employer: , Mr. &ian'Piikin Regional Personnel Administrator Ministry of The Attorney General 14th'Floor 18 King St. E. Toronto, Ontario Uearino: Suite 2100 160 Dundas St. W. Toronto, Ontario Septenber ?Eth, 1978 , ’ -:., ‘- -2- In this grievance Doreen Naik (now Taharally), employed as a Secretary IV in the Ministry of the Attorney General, claimed that she was unjustly disciplined. The grievance arose out of a written memorandum dated June 22. 1977 (Ex. 3). which the grievor received from her supervisor, Mr. R. H. Birney, entitled "Re: Misconduct". In it, Birney referred to the grievor's practice of taking extended coffee breaks and her use of profanity to him when he spoke to her of her conduct. The grievor states that the allegations are untrue and asks that the memorandum be removed from her personnel file. The grievance comes before this Board pursuant to s.u(z?)(c) Of the Crown Employees Collective Bargaining Act, S.O. 1972, c.67,as am. S.O. 1974, c.135. That section reads: 170) In addition to any other rights of yrievznce under d collective agreement, an employee claiming, . . . . . . . (c) that he has L?een disciplined or dismissed or suspended from his employmnt without just cause, may process such matter in accordance with the grievance procedure provided in the collective ayreemnt, and failing final determination under such procedure, the mttet my be processed in accordance with the procedure for final determination applicable under section 18. Section 18 provides for final settlement by arbitration by the Grievance Settlement aoard. At the outset of the hearing, Mr. Pitkin. for the employer, raised a preliminary objection to the jurisdiction of the Board. Ye ,’ -3- argued that the grievance was not. arbitrable under &.17(2)(c) on the ground that the warning received by the griever was not disciplinary in nature, while the Board's jurisdiction-under s;17/2) ic) rests 'on the fact that the employee has been disciplined. . Following Mr. Pitkin's objection and hearing the representations of .the parties, the Board adjourned the hearing pending a decision on the ,preliminary issue.. After considering the matter, we areiof~the view that Mr. Pitkin's objection to our jurisdiction is well-~founded. J. This case is indistinguishable from that of~cloutier and Ministry of Rev&me, 20/76, to which~we were referred by the parties. Cloutier had grieved a written cotiunication warning him that he might not receive a merit increase if his work performance did not improve. A panel of this Board, in a decision,by Professor Beatty, .found that this communication-was neither an appraisal unders.17(2)&) of the crave employees collective Bargaining Act nor discipline under s.l7(2)(c), because it referred to future action that the employer might contemplate. There were no present adverse consequences to the griever; The written conunication in this case (Ex.3) is similar to that in Cloutier. After outlining the conduct of the grievor which the employer found objectionable, the memorandum stated, I wish to advise you that any further outbursts of'this nature will not be tolerated in this office and I can assure you that if it does the necessary action will be taken against 00~. (emphasis added). Then, at the end of the memorandum, it was stated, i. T f -4- I wish to remind you that while you are d mmber of the staff you must abide by the rules and regulations of this office. I feel that your conduct in my office on the date mntioned was most uncalled for. Please be guided accordingly. (emphasis added) The letter can indeed be characterized as a "warning" by the employer to the grievor. for it contains clear instructions that she should change her conduct or expect unfavourable consequences. The warning is not disciplinary in nature, however, for its purpose is only to provide guidance to the employee as to the scope of acceptable conduct, as the references to future action and guidance demonstrate. Furthermore. Mr. Pitkin, for the employer, stated at the hearing that the letter was only intended as criticism of the grievor and not intended as discipline. As the cloutier case and the cases cited therein make clear, one can not characterize every communication from an employer to an employee as disciplinary action. Only if the warning will have a prejudicial effect on the employee's position in future grievance proceedings, in the sense that it is being used to build up a record against the employee, can it be characterized as disciplinary action. TO conclude otherwise would be to allow an employee to grieve any cocununication which he believed to be unfounded, with unfortunate results for the grievance procedure and for the employer trying to give guidance to an employee without engaging in formal disciplinary action. As Frofessor Beatty stated in cloutier with regard to criticisms that might have adverse effects in the future - c -5- That is 'to say if this Board were to accept any other construction of s.l7(2)(b), it would ensure that every letter or memorandum sent by an employer to an employee, which comrented critically on the latter's work performance, could be mde the subject of grievance~to be brought before this Board. AS a consequence, such a construction,, by bringing antici>ated but not.yet realized decisions of the employer before this Board, could well result in the grievance procedure'being clogged with, and this B&d's attention being diverted to, matters which are at nest of marginal significance and which.may, in the final analysis, be only of hypothetical interest to the parties. While Professor Beatty was discussing s.l7(2)(b) of the Act, the same comments are applicable with regard to s.l7(2)(c). : While Mr. Nabi for the grievor expressed concern for the adverse effects of such a memorandum on the griever's opportunities for promotion or her relationship with a new supervisor,~ this does not lead to the conclusionthat the warning is disciplinary. If the grievor feels that the charges are not well-founded, she can, as Professor Beatty suggested in I ! clout&r, submit a letter to the employer and retain a copy for herself. Then;.if she considers herself subsequently prejudiced in promotions or appraisal because of this warning,she can raise the issue'in a grievance at that time. I Finally, I@. Nabi argued that the employer was estopped from raising the preliminary objection to jurisdiction because the objection was first raisod'two days before the hearing. The cases referred to in support all dealt with waiver of time limits and procedural.defects in the grievance procedure (e.g. Forest Basket Co. Ltd., 16 Z.A.C. 33; Reoency &wers Hotel Ltd.,4 L.A.C. (2d) 440). They are of no assistance in the present case where the Board lacks jurisdiction under the statute . . I -6- unless this is a matter involving discipline. The employer's failure to object at an earlier time cannot confer jurisdiction on the Board. At most, the grievor or the union could have sought an adjournment to prepare argument to meet the objection if there was prejudice from the employer's delay in raising the objection. For these reasons, the Board feels that the objection to its jurisdiction under s.l7(2)(c) is well-founded. The warning, not being c disciplinary in nature, cannot be the subject of a grievance, and this Board is without jurisdiction to hear the merits of the case. The grievance is dismissed. Dated at Toronto, Ontario this 17th day of October, 1978. Katherine Swinton - Vice-Chairman I concur Victor Harris - Member I concur Henry Neisbach - Yember