HomeMy WebLinkAbout1981-0425.Zuibrycki.82-07-09For the Griever:
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On f<arch 12, 1981 the Griever filed a grievance (Exhibit 1)
in \qhich he grieved:
"That the memo of complaint dated March 4, 1981
regarding liaison with co-workers is inaccurate,
unwarranted and unjustified. Such instances of
memos provoke the thoughts of deliberate and pre-
meditated harassment."
The letter in question reads as follows:
"On a previous memo you were all advised that if you
were going to be away from your desk a considerable
time, that you had to leave a note or advise the other
officer of your whereabouts.
"I note that you do not comply with this. Ue have had
complaints from borrowers about difficulty in contacting
you as you are away from your desk a lot and each time
they have to leave a message that is not returned promptly.
Beaulieu Bakery was one example.
"I am advised that on Ponday you spent at least an hour
and one half discussing personal business with I. Austrins
and the switchboard operator had to be advised to take
messages for you.
"Yesterday morning you were engaged in your personal
conversation with I. Austrins and the secretary had
to get you because an irate borrower was fed up leaving
messages. Russ Haven Resorts complained he had been
waiting for you to return his call since the day before.
The rest of the disbursement officers comply with the
above procedure and I viould expect you to do the same
in the future."
The Employer objects to our jurisdiction to hear the matter.
The Employer's position is based on the cases of Cloutier 20/76 (Beatty) and
Naik 108/77 (Swinton). That position is basically that letters in a file are
not normally to be considered as discipline.
The position of the Union is that the grievance fails
under both the Collective Agreement and section 18(2) CECBA. In particular it is I
stated that the preamble of the Agreement has been violated and thus its
"spirit". With respect to section 18 it is suggested that the appraisal section
18(2)(b) and the discipline section 18(2)(c) are relevant.
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We have no difficulty in finding that there is no violation
of the Collective Agreement. In addition we are satisfied that s.l8(2)(b)
does not apply in this situation. The meaning of the word"appraisal"has
never been properly,defined by this Boardalthough a suggestion has been
made in various cases that it might perhaps be limited to situations in
which a formal process of appraisal common to all Employees is undertaken
such as is done on an annual basis in most Ministries.
The more difficult question .is whether.or not the ~letter in
questionhere can be considered as discipline. In Cloutier a letter and
dccumentation was.placed in the Grievor's file. These documents purported
to suggest that he was not performing certain duties. This letter suggested
'that "unless there is a marked improvement" in the future a merit increase
would not be forthcoming. The Vice Chairman indicated that this letter was
in the oature of a forewarning and not discipline and until such time as
a merit increase was actually withheld.or delayed there was no right,to
grieve. This was stated in the context of whether or not there had been
an "appraisal" within the meaning of then s.l7(2)(b) CECBA. It was suggested
that Ann., alternative way for the Employee to respond to a letter critical of
his or ~her work performance would be to respond in kind by an other letter
challenging certain allegations made. Should the issue come up in the future,
both letters could be part of the material reviewed by the Board. .The test
that was applied was the test generally found in the private sector that if
the letter was not intended td,have.a prejudicial effect on the Grievers
position in future grievance proceedings, it could not be characterized as
disciplinary in nature. Thus there was a suggestion in'cloutier that written
memoranda might, in the proper situations, be regarded as disciplinary. In
particular it was stated:
ID . . . it was expressly stipulated that the letter
was only intended to induce conformity to acceptable
conduct, and was not to be regarded as part of a record
being built up against the grievor, we do not think that
the letter of January 21, may properly be characterized
as being a disciplinary notation."
The second case mentioned, the Niak case 108/77 (Swinton),
involved a memorandum which the Griever received entitled "Re . . . misconduct"
this document referred to the Grievor's alleged practice of taking extended
coffee breaks and her use of profanity. That Board was concerned with the
meaning of the then section 17(2)(c) and made the same distinction between
present action and future action as was made in Cloutier. As was stated:
"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 to
only provide guidance to the employee as to the scope
of acceptable conduct, as the reference is to future
action and guidance demonstrate."
It continues:
II . . . 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."
The distinction between a warning of future action and present
action is a very difficult one. It is common ground between the parties in
this matter that the present Grievor has a history of being rather diligent
in protecting his interests through invcking the grievance procedure. If the
test was whether or not the letter was being used to build up a record
against an Employee it seems to us that it would follow that every
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letter which comments unfavourably upon the actions of the Employee might
at some time in the future, particularly in a culminating incident case,
become part of the relevant record. Thus in this case if the Grievor were to
be dismissed for being away from the work place, by the virtue of the doctrine
of culminating incident this letter or evidence about the incident would
become quite relevant as part of the past record. If suspension for similar
conduct,were to oc,cur it is arguable that the letter would be relevant
although perhaps not admissible, as similar act evidence.
In the private sector the matter of lesser forms of discipline
is dealt with in a number of ways. In some Agreements only formal notices
of discipline are allowed to go into the file and these slips are considered
as formal dis.cipline and can be subject to grievance. Where there are
regular proceduresfor appraisal a,nd where these are placed in the file, the
Employee is normally given an opportunity to respond to any of the allegations
contained in these documents. Such is indeed the practice in the Ontario
Public Service and a statutory right of grievance exists with respect to
these documents.
Unfortunately there, is not the precision in these Agreements
that sometimes exists in Agreements ,in the private sector. This leaves an
Employee in a rather difficult situation. If he or ~she knows of a document
which is.uncomplimentary and which is going into-the f,ile, other than an appraisal T
and does not grieve itsinclusion in the file, he~or she may be later met
with the argument that its contents were accepted. If on the other hand
the Employee grieves,.he or she may be met by an argument that there is no
jurisdiction in the Board to deal with the matter because it was not disciplinary.
What is an Employee to do?
In the private sector the concept of progressive discipline iS
seen as verv sianificant.'oarticularlv in the urofessional field. In general
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verbal warnings have not been found to be'disciplinary but note Re O,gen Sound
General Marine Hospital, 16 L.A.C. (2d) 11 (Abbott 1977),while final rrarnings
(contra Cloutier) are normally considered to be disciplinary. In the context
of final warnings it was suggested in Atherton (P.S. 876/76) that before a
person could be dismissed for failur e to meet the requirements of the position
there would have to be an explicit warning,preferably written,given to that
Employee. This seems to suggest that in tine public service an explicit
warning that future discipline may occur can be seen as part of the system
of progressive discipline. It is difficult to reconcile this case with that
of Cloutier.
It seems to us that each written document must be considered
in the light of what it states and in the light of the relationship between
the parties prior to its receipt. To try to distinguish between a letter
which raises the possibility of future action (nondisciplinary) and one
which is a final warning or which is used to build up a record against the
Employee (disciplinary) seems to be an exercise in futility. As a matter of
policy we feel that unless specific action is taken against the Employee at
the time of the letter, the more appropriate remedy for the Employee is for
he or she to respond by way of a letter setting out his version of the facts
and requesting that the letter be included in his personnel file. In this
way at least the theory that the Employee has accepted the allegations may
be negatived in subsequent proceedings. Although it might be better if
this Agreement contained a clause such as is found in many Agreements in
the private sector erasing the record after a period of time, we feel tnat
with the passage of time it will be very much more difficult for the Employer
to prove factual al .egations found in these letters and
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where they have been explicitly denied at the time, it is
unlikely that such letters will prove to be useful.
Accordingly it is our view with respect to this matter
that the letter should be characterized as an attempt to
require the Employee to conform with normal office
procedures and not as a form of discipline in the sense
of being an attempt to build up a record against the
Employee. We suggest that the Grievor respond in a
letter to the factual allegations if they are disputed,
and do nothing further for the moment.
DATED at London, Ontario this-9th day of July, 1982.
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.- P. G. Ear-ton Vice Chairman
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: "I dissent" '(see attached)
T: Traves &ember . .
A.G. Stapleton Xember
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I DISS~T
With respect, I nust dissent frcan the mjcrity decisicn in this case. Wit3
regard to the distinction between mn-disciplimry dcations ani srievable
wsrni!q letters, the cases cited, Clout&r 20/76 (Beatty) z 108/77 (Swintcn)
and Atherton (P.S. 876/76 ) all adopt the sane view, that
I, . ..only if the warning will have a prejxlicial effect on the errployee's position in future grievance prccefxiings, in the sense *at it is
b&q used to!xildupa record aaainsttbeen@oyee,can it be characterized as disciplinary action." (Niak)
In my opinion there is 110 doubt that a warning letter of the sort issued to the
griever certainly could be used in a fuoxe grievance as evidence of past misocrxdxt.
The difficulty, of course, lies in determining if the current warning will lead to
future disciplinary action. 'I'hemjority in this case regard this task as "an
exercise in futility". In Cloutier, the Board harried that the exercise "could well
result in the grievance procedure being clcgged with, and thisE!oard's attention being
diverted to,matters which are atnostof nnrginalsigni.ficame axlwhichnay, in the
fiml analysis, bs only of hypothetical interest to the parties." I am sensitive to
botk of these concerns, buttheydomtstrikeme asvalidgroums to bar grievers
I fran their cunmn law right to establish clearly the facts in mtters u~~Zer dispute.
I am further persuaded that there is in fact a practicalaeans to escape the diffi-
2.: culties~envisagexl inclcutierandbymycolleagues in thiscase. The analysis ard
conclusions in Pe Kimberly-Clark of Canada LM. (1972) 1 L.A.C. (2d) 44 (Lysyk)
,'. provide the mst useful mint of departure.
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"At the bearing in thisn~~tter, counsel for the ccmpany tmk the
position that the oardrnsrely dcmnwn ted a discussion with the griever,
that it was intended to draw the griever's attention to the cunpany's
cmmernover his jobparfor?nance and thereby provide himwith incentive
to inpmve thatperfornbame,and that the cardwas mtdrawnup fcr the
purmse of "building a record" against the griever.
Tb the extent that any "warning" is disciplinary, of course, the sanction
inflicted upon the anployee so disciplined is mt irnediate, but
potential. The anployee concerned will have in mind that if a disci-
PlimV warning is mt mde the subject of a successful grievance, the warGq will go to "build a record" thatray be used against him at a
later time should he subsequently bedisnissedor susperxled or subjected
to mneother formofdiscipline. Awarningcan fairly be characterized as a disciplinary warning, that is to say, when it may have a Prejudicial effect upon the employees' position in future grievance prcceedilgs to mntest a disznissalor suspension or other .disciplinary action.
On the other hand, caqxny personnel records -tight we?i include a
menorardum of sune sort containing unflatterinqrenarks about an
employee, but which could mt be viewed as a disciplinaq warnira;
in the sense of laying the basis for, or suppxting, other disci-
plinary measure at a later date - either because of the nature of
the document, or because the "warning" wasmt brought to the
attention of the eznployee in such a way as to afford hizn the opl;orcJ-
nity of challenging it through the grievance promdue, or because it
is clear for scram other reason that the enployee xxild not be
prejudiced in any future prcCeedingS.by having failed to grieve the
Wan-*" imneaiataly following its issuance....
On the basic issue, howaver - that is, whether or not the card of January 7, 1972, can be taken to constitute a disciplinary rreasure -
we are mt confined to the face of the dment. As suggested above,
inour view the critical feature disctirguishirq awarnirg dl.ich can properly be characterized as disciplinary fran other (non-grievable)
expressions of enployer disapproval is that in the case of the former
an enployee wm fails.to bring a grievance may be prejmiced in fubxe
proceedings of a disciplinary nature. In the case at hand. as we understi it, the cunpany has clearly.taken the position th3.t the
card of January 7, 1972, ms not intended to be disciplinary in this sense of establishing a basis for futher action. By so charac+~rzirq
the card, and unequivocally representirq it as a non-disciplinary
oxmxnication, we areof the opinion that the mywould be
estippei fran subsequently tendering itin any future procee3ngs of
a disciplinary nature that might be taken against the grievor".
As theunderlined~sage indicates, the arbitratDr inReKi&e.rly-
Clark clearly placed the onus on the mployer to distinguish between
grievable warnings and mn-disciplinary -cations which the R@oyer
wxld be estopped fran using in subsquentprmeedings of a disciplinary
nature. If this stardard was applied in this grievance, as I believe it
should, the DqAoyer would have'to indicate at the outset if the wing
letter sent tc thegrievorwas amn-disciplinaryccnnainication, which it could'
not call in evidence in a future disciplinary proceeding, or if the letter sent has
a disciplinary warning, in which case, itwaild be grievable. 1tseemstolnethat
the Employer cannot have it both ways, that is, "a warning letter is not discipli-
nary untii~1 say it is at a future diSCipkEq proceeding."
The ranedy suggested by the rrejority in this case, that the Griever file a
letter with the mloyer setting out the facts of the matter as he sees then, &ile
worthy, does not appear to me to address the real problems raised by cases
of this sort. Shoulda futuredisciplinaryaction arise based in partcnmtters
pa?Aainirg to the incidents described in the Dnployer's letter to the Griecor,
the Board my be Subtly influenced by an aonanulation of such exchanges of letters
(i. e.; where there is sake, there must he fire), or they nay not be able to
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recor5txxct the Irae facts of the incident because a significant amunt Of +h
nay have passed, wsnries my have faded, or saw of the princiiels in the events
xentioned my m longer be available to testiB1.
Under these circunstances, I wt insist on the 2oard's right to retain
px2antialjurisdiction in this case. In the event that the Bnployer wishes to
maintain the mn-disciplinary, and hence mn-grievable, character of its warr.iq
letter, then, of course, following Cloutier and Niak, the E?oard would have m
jurisdiction: but at the sane i&e, following Re KiAerlyClark, the E2nplcye-r would
be eS+Sppad fran calling this letter in evidence at a future disciplirary hearing.
In the event that the mloyer wished to preserve its right to use the warning letter
in a future action, then once again the &card could follow Clout.& and Siak ard hear
thecase'. TheFrnployerinitiatedthe taming letter in this case ard it is
inctiton the Eqloyer to indicate clearlyitsmtivationaixl i.ntention~under
the guidelines spelled out in previous arbitration decisions.
Professor) Tcm haves
&Yker