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HomeMy WebLinkAbout1981-0574.Duck.83-08-29IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD Between: OPSEU (Arthur Duck) - And - Grievor The Crown in Right of Ontario (Ministry of Revenue) Employer Before: A!.,R. Gorsky Vice Chairman R. Russell Member A.G. Stapleton Member For the Grievor: J. hliko Grievance Officer Ontario Public Service Employees Union For the Employer: E.C. Farragher Director, Personnel Services Branch Ministry of Revenue Hearings: June 9 E 16, 1963 DECISION The Grievor, Arthur Duck, filed the grievance; herein, bearing date July 10, 1981, which states: .“I grieve that I have been dismissed without just cause.” I am satisfied that Mr. Duck was notified of the date scheduled for the hearing of this grievance, however, he did not attend and the hearing proceeded in his absence. The parties submitted an agreed “Statement of Facts,” which is as follows: ” STATEMENT OF AGREED FACTS RE: A. DUCK GSB 574181 1. 2. ~3. 4. 5. 6. Mr. Duck was transferred from the Municipality to the Ministry of Revenue when the Ministry took over the assessment programmes on January 1, 1970. He worked as Clerk 3, General until reclassification to Property Assessor I trainee on October I, 1973. Two years later he became a Property Assessor 2 in accordance with Ministry policy. As a result of a grievance and a decision of this Board he was reclassified to P.A. 3 effective October 5, 1978. Mr. Duck’s previous disciplinary record included: a. A written letter of reprimand dated March 9, 1979. b. As a result of an incident on February 16, 1981, Mr. Duck received a 5K day suspension reduced to 2% days as a result of a decision of this Board. c. As a result of an incident on April 15, 1981, a ten day suspension was imposed which was upheld by a decision of this Board. On Monday, June 1, 1981, Mr. Duck and a number of other assessors were assigned temporarily from area 6 to Mr. Dick’s area to assist in the re-assessment programme ke-inspection). 7. His assignment involved picking up work from Paul Sirchich, P.A. 2. 8. Mr. Duck expressed his concern to Jim Campbell that he was being asked to work for a P.A. 2. After discussion, he went out into the field to carry out his duties. 9. On the morning of Wednesday, June 3, 1981, he returned. h& assignment to Mr. Jim Campbell. 10. Shortly thereafter, Mr. Campbell spoke to Mr. Duck and indicated that the completed work was not good enough in that the majority of inspections were not completed properly. Please note: There is no number 11. 12. This concern was later raised and detailed in a letter from Mr..Duck .fo the Deputy Minister, Mr. Russell, dated June 12, 1981 (Appendix 1 as attached), to which the Deputy, replied in a letter dated June 23, 1981 (Appendix 2). 13. ~Mr. Campbell explained to Mr. Duck the Divisional policy on property inspection when no-one was home. 14. Mr. Duck replied that he thought the instructions were illegal and requested that such ‘instructions be provided in writing. 15. Mr. Campbell went to discuss the matter with Mr. Dick, the Area Manager, and he directed that Mr. Duck be assigned office work. The work was given to Mr. Duck, he completed it and turned it in at noon. ..,. 16. Mr. Duck took a short lunch break and afterwards went out into the ‘fjeld with work for his own neighbourhood without notifying anyone from management. 17. The next morning, June 4, 1981, Mr. Duck. telephoned Mr. Skinner that he was sick. 18. Mr. Duck was absent on sick leave for four working days and returned to work on June 10, 1981. 19. On Mr. Duck’s return to work, he reported to his manager, Mr. Skinner, who requested the work that Mr. Duck had carried out Wednesday afternoon, June 3, 1981. ;.* ,.,’ ‘~ ,i., 20. Consequently, Mr. Skinner wrote to Mr. Thompson requesting a meeting to review the situation. 21 . Later that afternoon, a meeting was convened. In attendance were Mr. Skinner, Mr. Thompson, Mr. Duck, and Mr. Bayley. 22. At the meeting Mr. Thompson asked Mr. Duck to give an account of what in his view had transpired from the morning of June 1 through and including June 3. 23. Mr. Duck denied that he had complained to Mr. Campbell about working for a Property Assessor2. 24. Mr. Duck indicated that he was instructed by his management not to enter private property without the owner’s consent. In response, IMr. Thompson said that Mr. Dick had not given him that instruction and reiterated the Divisional policy on inspecting properties. 25. However, Mr. Duck still requested a letter of instructions in writing, authorizing him specifically to trespass on private property without the owner’s consent. Mr. Thompson denied the request stating that it wasn’t necessary since authorization was in the Act. 26. Arthur stated that he went into the field on the afternoonof June 3 without advising his manager or supervisor because he was disturbed about the discussions he had with Mr. Campbell that morning. 27. Mr. Duck acknowledged that on the afternoon of June .3 he did not inspect any of the properties for which he was processing the sales. He stated, however, that he felt he was not wasting time because he was looking at the properties. 28. vr. Duck left the meeting abruptly. 29. Mr. Thompson and Mr. Skinner recalled that he went to the door, turned around and exclaimed, “You bastard - you got what you want - I quit.” ’ 30. Mr. Bayley, the union representative, recalled that as Mr. Duck stood up and walked to the door, he said, “You got what you want - 1 quit”. As he was stepping through the doorway, he stated “You bastard.” 31. At approximately 4:25 p.m., Mr. Duck met with Mr. Skinner and requested two weeks vacation commencing the next morning, June 11, 1981.” : The agreed statement was supplemented by some viva vote evidence -- which did not in any material way affect what had been agreed to. On the evidence, it is clear that Mr. Duck had been given a proper, legal order by his superior and that there,was no reasonable basis for his refusal to carry o~ut the.task assigned to him. Nor can it be found that -an employee, in the circumstances of Mr. Duck, might -‘i have reasonably believed that the order was an ~illeqal one. I would also find that the Grievor took vacation without permission and did .- direct abusive language at his superiors, all without a justifiable excuse. ,.i:., The .Grievor received a letter from T. M. Russell, Deputy Minister of Revenue, dated June 23, 1981 (Appendix 2 to the agreed statement), which is as follows: June 23, 1981. Nr. A.A. Duck, Suite 309,. 150 Donway Wes,t, Don PIills, Ontario. 143C 2G2 Dear Mr. Duck: I am writing in reply to your letter of June 12, 191J1, concerning tile validity of your Commissioiler's .instri~c.- tions on inspecting resid~enti.al properties. ln response tg your request for a rulirfy, please be advised that the instructions given to you by your Manager and Commi.ssioner are proper and arc in accor~I- ance“%ith normal opera.ting procedures within the Assess- ment Division. Additionally, I have recently received a report flop your Commissioner, Mr. A.F. Thompsoll, conccrnjng your conduct on the day referred to in your letter. wIleI I consider your abusive languige, your failure to, comply with the.instructions of your Commissioner, and your decision to take vacation contrary to your Manager's decision, in conjunction with your past record of insub- ordination, I am compelled to suspend you from employment pending a full. investigation of your situation. YVUl- suspension will be without pay and will be effective from ,.. Thursday, June 11, 1981. Upon completion of my investigation, I will he writing .to you to.advise you of your status as an employee with the Ministry of Revenue. Yours very truly, T.Fl. Russell, Deputy Minister ccs: Mr. W.J. Lettner Mr. A.F:Thompson Mr. E.C. Farragher" .The letter pf June 12, 1981, to Mr. Russell from the Grievor, referred to is Appendix 1 to the agreed statement and is as follows: " - f~~r.Arth”r ‘~.DliCk, 150 Donxay best, St?,309, UOij ULL., Onterio. KjC 2c2 12 Jutw 1981 1t;r.T. K.Russell.. Deputy Minister, Einistrg of Revenue, 77 3loor Street West, 19th.?loor. TOR3i:TO, Ontario. rlJ.4 lXi! Dear kir.Russell: I 2~ employed with the Assessment Division, Field Operations, Regiono, Area 6. icy office is located at2221 Yonse Street, Toronto. The Assessment Commissioner is KR.A.F.'i'HOWSON. The Veluation K;;.na+er of Area 6 isfi,;.i.ic.G.S~~II~~~~RI Ky Classification 1s Property Assessor 2. On Wednesday 10 June 1981, I was advised by the Commissioner to report to X.E.C.DICK, Valuation _ KanaSer of Area 5, to carry out unspecified tesks. .If they involved inspecting residential properties where nobody was at home, I should trespass on the prooerty. I qu2stioned the validity of these insiructions from the Commissioner for me to.act illegally, but he advised me that the Assessment Act empowered me to go onto property without permission. I would eppreciate an early ruling on the matter from you. In the meantime, in order to avoid a di~rect confrontation with a superior on 2 point of lerv, and a refusal by me to obry instructions which - ~r.~4.%.Russell, Deputy r.$nister. could be misconstrued as an a.ct of insubordination, Lhave advised my l<;'an?.?;er, iLr.%.S.;Zinner, that I will bc on vzcetion fro% OBjOhr;. Thursoay 11 June to C!;30tr;. Thursday 25 June 19:)?, The ten days to be deducted froa my vacation credits. Y0turs truly, Arthur A.UucL:." On July 2, 1981, Mr. Russell sent the following letter to the Grievor (Exhibit 3): “.Xliw nl Iiw Minislry ,lry,l,ly wl,,!;,,~, 01 Re~ventie July 2, 1981. b1r:~A.A. Duck, Suite 309, 150 Donway west, Don Mills, Ontario. M3C 2G2 Dear Mr. Duck: On June 23, 1981 I wrote to suspend you, without pay, effective from June 11, 1981. That suspension was in response to your conduct'on June 10, 1981. In that letter I stated that I would be conducting a review of your status as an employee and would contact you with the results of that investigation. A review of the correspondence in your file shbws that the incident nn June 10, 1981 followed three previous instances of insubordination, for which you had been _,.- disciplined. The discipline imposed in peach instance has been increasingly more severe, but does not seem to have convinced you that the Ministry would not tol- erate further acts of insubordination. The letter I WrOte to you on April 24; 1981 very clearly indicated the grave consequences of repetitions of this type of behaviour, and I quote "and that further instances of insubordination will result in your dismissal". Inlight of the.continuing nature of your insubordina- tion and your failure to respond to other disciplinary sanctions imp6sed, it is my decision that you can no longer continue as an employee of this Ministry. Accord- ingly , under Section 22(3) of the Public Service Act, I hereby declare that you are dismissed effective June u, 1981. I would conclude by advising that you do have the right to grieve this decision, should~you choose to so do. Yours truly, T.M. Russell, Deputy Minister ' On the basis of the evidence referred to by Mr. Russell there was just cause for the action which he took, and if the matter stood there-, this represented a clear case for the denial of the grievance. There was no evidence to demonstrate that the representatives of the Employer had any.animus .against Mr. Duck or were in any way "out to get him," as he appeared to believe; Are there, then, any special circumstances which might cause the Board to ameliorate the severity of the penalty which had been imposed.? This is an extremely sad case and involves rather special facts. This Boardheardthe evidence of three of the previous cases alluded to in the agreed statement, (classification grievance; - . . incident of February 16, 1981; incident of April 15, 1981~) land, as a result had a full opportunity, employing 20/20 hindsight, to see in perspective the developing events that would lead to Mr. Duck being discharged.. What was evident to all who were concerned with MT. Duck's behaviour was that, for some time prior to the filing of the classifications grievance on October 5, 1978, he had become obsessed with his perception of ill treatment by representatives of the Employer who refused his request for classification. Because of a variety of circumstances the classification grievance was not resolved until the the Award of this Board of June 1, 1982. By that time the disciplinary record.which figured in his discharge and which is referred to in the agreed statement of facts had already built up. We are satisfied that the actions which led to the several impositions of discipline were directly, related to Mr. Duck's feelings of frustrations at having his classification grievance left in suspension for so long a period of time. Never- theless, there is no evidence that the delay can in any way be attribnted.to an act of the Employer. The same can be said for the series of events of June.19811 which in turn led to the preparation of Exhibit 3. As cainful as the realization must be for Mr. Duck, he had no option but to wait for the resolution Of his classification grievance by arbitration. Instead, he engaged in a continuation of his campaign to secure recognition of his position: that he should be reclassified as a P.A. 3. His ultimate "success" and "vindication" would be cold comfort, indeed~, were his discharge to be upheld. Nevertheless, and it must again be emphasized, the Employer cannot,.on the evidence before us, be faulted for the delay in having the classification grievance heard. We had an excellent opportunity to observe Mr~. Duck at the hearings he attended. From a lay perspective, he appeared to .' be manifestly unwell, both physically and emotionally. Furthermore, he alluded, on several occasions, to his being physically and emotionally unwell and to being under medical care and on medication for his "nerves." The witnesses for the Employer, in describing' Mr. Duck's "disobedient" behaviour, transmitted to the Board their perception that this was not an ordinary case of a disobedient ,c.. employee. Throughout, it was impossible to escape the,conunon understanding that Mr. Duck was not a well man and that this played no small part in the manifestations of his disobedience. Mr. Duck's reference to his state of ill health, which appeared : ,ljl. to go back to 1978, was not, in any way, questioned by the Employer. A most peculiar and significant piece of evidence adduced on behalf of the, Employer in the first case heard by us (the classification grievance), was given by Mr. Pick, the Griever's then supervisor. In describing the Grievor's level of competence when classified as a P.A. 2 and when he was seeking to be re-classified as a P.A. 3. Mr. Dick was emphatic that in 1978 _rir. Duck did not possess the necessary skills to successfully carry out the functions of a P.A. 1, let alone a P.A. 3. I am satisfied that Mr. Dick's assessment was of an employee who was periodically reduced, through illness, to a state where he could not properly function. Mr. Duck, upon being appointed~ to the P.A. 2 classification in 1975, was apparently able to fulfill the requirements of that position. It.must be emphasized that'the re-classification of the Grievor to the position of P.A. 3 by the Award of this Board on June 1, 1982, had nothing to do with the skill,level mani- fested by Mr. Duck when he filed the classification grievance on October 5, 1978. His re-classification grievance was evaluated on the basis of the classification we found him to have been assigned to by the Employer, which was that 0f~P.A. 3, and that his skill level was irrelevant to the result in that case. He was entitled to be classified on the basis of the work he was being assigned to perform and hi s ability to perform that work was not a real issue before us. While we would find much that is valid in Mr. Dick's evidence as to his assessment of Mr. Duck's then capabilities, those capabilities appear to have been greatly influenced by Mr. Duck's deteriorating physical and emotional state. It is insuch an environment that the balance of the eventsremained to be played out. The representatives of the Employer, not being health professionals, cannot be faulted for responding to Mr. Duck's behaviour as they did: as a conventional case of a disobedient employee, who,, in an attempt to obtain relief for a re-classification grievance, persisted in a course of conduct meriting an increasing level of disciplinary response until the final series of events which culminated in Mr. Duck's being discharged. We find,on the evidence, ~that the.Grievor's physical and emotional state cannot be overlooked by us in assessing whether the Board should intervene and reduce the severity of the penalty. There was sufficient evidence to satisfy us that Mr. Duck's several acts of insubordination and, in fact, the totality of his conduct relevant to themattersbefore us, were significantly affected by the state of his physical and emotional health. Although the Employer was aware of Mr. Duck's health problems, without the benefit of this Board's perspective it responded in a way which is understandable and no blame can attached to it. ,It can be seen how the representatives of the Employer could honestly view Mr. Duck's disobedient behaviour as being nothing more than that. In their position, and viewing each event in point of time, such a response:wasa natural one. On the special facts of this case,we find that there is sufficient basis for reducing the penalty of discharge to one of a period of suspension subject to the following conditions:. In all of the circumstances, no blame being attached ..:y . ,to the Employer, the Grievor should be reinstated to his employment upon it being demonstrated t&t he is physically and emotionally capable of resuming his employment. In order to do this, the parties shall,~within 'two 'weeks from the date of this Award, agree on the n~ame of a physician to assess the physical ability of the Grievorto resume his employment, and on the name of a psychiatrist to assess the emotional ability of the Grievor to resume his employment. The parties shall agree to a series of questions to be put to the two physicians, relevant to the issue of 'the Grievor's physical and emotional fitness to return to work. If the parties cannot agree on the matters referred to them, this Board will reconvene to deal with such matters as cannot be agreed upon. -~ - 14 - Should both of the physicians, after examining Mr. Duck, report that he can return to work'within ~fwo'mdnths of .‘>?T their reports, he shall be'returned to worktithinthe period of two months from the later dated report. If either physician concludes that Mr. Duck is not able to resume work within the period of two months, then the discharge shall stand. We do'not make any order as to payment of retroactive -wages or other benefits to the Grievor as we believe the Employer cannot be faulted for its conduct. Any cost arising from the medical examinations referred to shall be borne by the Union. It is a condition of this Award that Mr. Duck ,attend the appointments made for the examinations referred to. DA&L? At London, Ontario this Bthday of August, 1963. 5--Q-+-+ M. R. Gorsky Vice Chairman 7 : 3230 7: 3600 7: 4300 714424 R. Russell Member "I concur" (see adden&naat+&Ched~. A. G. Stapleton Member ADDENDUM I concur in the decision of the Vice Chairman with considerable reservation, principally because I am unable to raise myself to the level.of medical expertise essential to endorse completely the Vice Chairman's.conclusions. To say that "there was sufficient evidence to satisfy us that Mr. Duck's several acts of insubordination and, in fact, the totality of his conduct relevant to the matters before us, were significantly affected by the state of his physical and emotional health" goes considerably further, in my opinion, than the actual evidence su@orts. Secondly, I am concerned about the wisdom and authority of a Board of Arbitration which reduces a "penalty of discharge to one of a period of suspension" subject to certain stated conditions related to the grievor's physical and emotional health.given that no expert medical testimony was adduced. If this approach is deemed acceptable in the field of arbitration, i<..l I cannot refrain from observing that this Board, in coming to the conclusion it did, was obviously influenced more by compassion than logic in its search for "special cir- cumstances which caused it to ameliorate the severity of the penalty which had been imposed." I agree that-the case is "extremely sad"--for both parties-- but, in view of all of the circumstances alluded to in the Vice Chairman's award, I am prepared to concur‘in his conclusions.