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HomeMy WebLinkAbout1982-0111.O'Keeffe.82-10-14IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTiVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD Between: OPSEU (Edmund 3’. O’Keeffe) Griever and The Crown in Right of Ontario (Ministry of Correctional Services) Before: :. P. Draper Vice Chairman R. Russell Member W. Lobraico Member For the Grievor: G. Richards, Grie;ance/Classification Officer Ontario Public Service Employees Union For the Employer: P.D. Van Home Staff Relations Officer :i;inistly of Correctionai Seru-ices Hearing: September S, 19S2 -2- The grievance conserns a letter addressed to the Grievor by the Employer, dated November 17, 1981, which, it is aileged, contains a threat .of dismissai and is a further step in a campaign of harassment by the Employer. The grievance requests that the letter be removed from the Grievor’s personal file. The text of the letter is as follows: You met with me in my office on Frihay, November 13, 1981 at 1600 hrs. to, ~&cuss, “the status of your be&b and your attendance”. At the meeting I outlined the contents of the medical report received from Employee Health Services which indicated that you are capable of performing the full range of duties of a Correctional Officer. Your attendance was also discussed, and your personal response to the problems your absenteeism has created was considered. As stated during the meeting, your absenteeism record oyer the last several years is unacceptable. I am informing you that this letter will serve as titice of a final warning. If your attendance does not improve to a satisfactory level, then I will have no alternative but to dismiss you for cause. As recommended in your medical assessment++ you will be subject to the provisions of article 51.10 of the Collective Agreement. You will be required to provide a medical certificate for each and every absence. It would be well for you to examine your interaction with supervisors as this relationship appears to have contributed to your excessive absenteeism. Every effort will be made to assist you in dealing with your problems, however iq the final analysis you must make the ,required effort to improve your attend- ance to an acceptable level or face dismissal. -3- At the commencement of the hearing, Mr. Van Horne, for the Employer, raised the preliminary objection that the Board is witho;t jurisdiction because the subject matter of the grievance does not constitute a difference between the parties arising from the interpretation, application, administration or alleged contravention of the Collective Agreement and further, that section 17, subsection 2 of The Crown Employees Collective Bargaining Act (“the Act”) is not applicable, the Griever not having been disciplined. iMr. Richards, for the Griever, submitted in reply that the letter in question is a disciplinary reprimand and alternatively, that the reference to article 51, subsection IO of the Collective Agreement in the letter makes the grievance one to which that agreement applies. Mr. Van Horne initially requested the Board to rule immediately on the preliminary objection. Mr. Richards initially requested the Board to reserve its decision and proceed to hear the merits. At a later stage of the proceedings each expressed a preference for the opposite course to that originally proposed. It. appeared to the Board that the merits could logically be argued only on the basis -that the Employer’s action was disciplinary, which begs the question of the Board’s jurisdiction. With that consideration in mind and being satisfied that such a course would not prejudice either party, the Board, having heard submissions on the preliminary objection, decided to exercise its discretion to adjourn, to rule on the preliminary objection and, depending on the outcome, either to continue the hearing at a later date or to dismiss the grievance for lack of jurisdiction. The Grievor was first employed by the Employer in July 1975 and in November 1981 was a Correctional Officer 2 at its Cuelpn Correctional Centre. His attendance record has been a matter of continuing concern to the Employer and has led to a series of Employer actions both disciplinary and non-disciplinary over a period of several years. In October 1976, April 1977, September 1977, August 1975, February 1979, September 1979, March 1980 and September 1980, the Grievor received a letter drawing attention to his absences from work. It is common ground that these were counselling (non-disciplinary) communications rather than disciplinary reprimands. All but the first two invoked the Employer’s power under article 51, subsection 10 of the~.Collective Agreement to require a medical certificate for any absence of less than five days. In each case the requirement was to continue for six, months. The fact that the Grievor’s attendance record remained under review throughout the whole of the period covered by the letters supports the inference that absences continued to occur and that the required medical ,certificates were produced.~-- In April 1979,.the Grievor received a five-day suspension for ‘allegedly using profanity in the presence of inmates and in the hearing of members of the public and for abusing his sick leave entitlement. The suspension was the subject of a grievance that eventually came before the Board (203/79). For present purposes it will suffice to note that the Board “on the basis of a strict application of the burden of proof requirements” found that.the Employer had failed to establish that the. Grievor was not “legitimately ill” on the date in question. In January 1980, the Grievor was given a letter of reprimand regarding an absence due to an injury which he . . . . .’ -5- allegedly could have prevented but allowed to occur. In upholding the grievance that followed, the Board (294/80) found that the Employer’s case did not meet “the standard of proof required by law”. In April 1951, the Grievor was given a letter of reprimand regarding his attendance record. In August 1982, the Griever was given a letter informing him that his employment was being terminated. The letter reviewed the Griever’s attendance record and referred to the letter of November 17, 1981. We are of the opinion that the difference between the parties is not one arising from the interpretation, application, administration or alleged contravention of the Collective Agreement. We are satisfied that the recourse by the Employer to article 51, subsection 10~ of that agreement is not the substance of the grievance. We are not persuaded that, as argued for the Grievor, the allegation of harassment stems from the reference to the subsection in the latter complained of and so serves to bring the matter within the ambit of the Collective Agreement. Rather, in our view, the issue of jurisdiction turns on the applicability of section 17, subsection 2, clause c of the Act and more particularly, on the question whether or not, in the circumstances here present, the Grievor has been disciplined. Not all employee shortcomings that affect job performance are amenable to Employer disciplinary action. Those that are not are -6- nonetheless capable of leading to warnings, transfers, demotions or terminations on the generally accepted theory that an Employer is entitled to the job performance reasonably to be expected of the employee. See Brown and Beatty, Canadian Labour Arbitration at page 302. Arbitrators have generally viewed Employer action taken against an employee whose illness causes frequent absences from work as being non-disciplinary. Such an Employer.response is thus classified as non-punitive in nature and the conditions that attach to the imposition of disciplinary penalties do not ,.~ apply. See the text cited above at pages 309-10. Although the case did not concern a warning, De Havilland Aircraft of Canada Ltd., (1964), 15 .~, L.A.C. 41, contains a reference by the arbitrator (Laskin) to cases involving chronically ill employees which has relevance here: “In such cases it is not a question of punishing an employee for any fault, or negligent or deliberate dereliction of duty, but rather of finding that he is unable to meet.the reasonable expectations of continuous availability for work.” As was stated by the arbitrator (Weiler) in Massey-Ferguson itd., (1969), 20 L.A.C. 41, “the first basic principle is that innocent absenteeism cannot be grounds for discipline, in the sense of punishment for blameworthy conduct”. As to whether or not a written warning is an appropriate Employer response to innocent absenteeism, arbitral opinion is divided. .However, arbitrators have consistently held that an-Employer has an obligation to apprise an employ.ee of any deficiency in his job performance. it also appears that such notice may be accompanied, in appropriate circumstances, by a warning of possible future Employer action. -7- See the text cited above at pages 332-33. In Cloutier (20/76) and Naik (108/77) the Board drew a distinction between communications that in themselves constitute Employer action and those that caution of future such action. We take from these cases that a written warning is non-disciplinary if it does not impose a penalty for blameworthy conduct and if it cannot be seen to be one of a projected series of Employer disciplinary’measures. On its face, and viewed in the light of the Griever’s lengthy history of absences from work which, for lack of proof to the contrary, must be viewed as due to reasons of health and so classified as innocent absenteeism, the letter of November 17, 1981, may reasonably be construed as being non-disciplinary. Certainly there is contained in it a “final warning” that ,might, in other circumstances, be considered as disciplinary. Yet if it were intended as such we would expect to find mention of progressively more severe disciplinary sanctions to follow. Instead, the letter does not seek to lay the basis for later disciplinary action but unequivocally puts the Griever on notice that his abnormal absenteeism will no longer be tolerated and that the alternative to his attaining an acceptable level of ~attendance is the termination of his employment. Moreover, the Employer would have been open tom criticism had not a clear warning of the consequence of failure to conform to the attendance requirements of his position been conveyed to the Griever. To note in the letter of dismissal that the warning had been given was entirely . . : ! I -8- appropriate. A recent decision of the Board, Hamblin (63 & 68182) contains a review of arbitral jurisprudence on the nature of discipline and sets out the following guidelines for the Board’s approach to discipline cases: a. The character of a communication cannot be judged simply by the title it is given by the Employer. The critical consideration is the substantive effect of the letter or note. b. A disciplinary communication is one which is intended to punish or chastize the employee for failure to perform properly. In a system of progressive discipline, one will often see a very minor disciplinary response to a failure, followed by progressively more severe responses to the same or similar failures of performance.~~. Thus, the first disciplinary action, though ’ very mild, has significance beyond the immediate purpose, because more severe discipline can be built on the first for further such failures of -’ performance. C. A non-disciplinary communication may counsel or recommend certain conduct to the employee, but it has no significance for future discipline. In otherwords, a non-disciplinary communica- tion cannot prejudice the employee. Applying these guidelines to the circumstances of ‘the present case we have concluded that (1) the substantive effect of the letter of November 17, 1931., is non-disciplinary; (2) the letter does not attest to a first (or any) instance of blameworthy conduct of the Grievor but came after a long record of failure through poor attendance to meet the requirements of his oositicn, -9- as to which the Employer had repeatedly expressed dissatisfaction; (3) the letter was not foilowed by progressively more severe Employer responses to the continuing failure of the Grievor ‘to achieve a satisfactory attendance record; and (4) the Griever cannot be said to have been prejudiced by the issuance of a warning which her was entitled to have and which the Employer had a duty to give. The Board having determined that the letter of j November 17, 1981, is non-disciplinary, it foilows that it cannot be the subject of a grievance under section 17, subsection 2, clause c of the Act. Accordingly, the grievance is dismissed for want of jurisdiction. DATED at Toronto, Ontario this 14th day of October. 1982. -. P. Draper Vice Chairman “I dissent” (see attached) R. Russell Member ‘W. Lobraico Meniber /lb . . . : - 10 - DISSENT I have read the report of the Chairman, iMr. Draper, and I cannot agree with either the conclusion he arrived at or the method by which he arrived at said conclusion. What is before the Board is whether we have jurisdiction to .~ hear the merits of the grievance which reads as follows: 1. I grieve your letter to me dated November 17, .,. 1981 and the threat of dismissal contained therein. .2. I allege that this letter and the threats contained therein are a further step in the harassment that I have been subjected to since my serious illness of September 1977. I Settlement required: 1. I want the above mentioned letter to be removed from my personal file and have ii and alI other copies destroyed. 2. This harassment must cease. 3. The assistance referred to in your letter be made available to me as soon as possible. The Chairman on page 3 says: “We are not persuaded that, as argued for the grievor, ~the allegation of harassment stems from the reference to the subsection in the latter complained of and so serves to bring the matter within the ambit of the Collective Agreement.” - I1 - .- It is here I part company with the Chairman. In examining the facts submitted to the Board it is hard to conclude that they .do not lead directly to harassment. The Chairman himself refers to case 203/79 which was a _ unanimous decision of the Board chaired by Professor Barton in favour of the’grievor, O’Keeffe. In this ‘case the same griever as in the instant case was given a five day suspension for allegedly using profanity. However, Father UcCarthy the full time Chaplain who was present when the griever was accused of using profanity said he didn’t hear any profanity in that area. Then, again, in 1980 the employer formerly reprimanded the grievor O’Keeffe for what amounted to “malingering”. Once again there was a unanimous decision from the Board of Arbitration chaired by Professor Swan, in favour of the grievor. The grj*evor’s “crime” this time amounted to the,’ grievor O’Keeffe deliberately injuring himself by virtue of wearing the footwear issued to him to wear by the k?inistry of Correctional Services. In addition to these. two actions by the Ministry which tend to point in the direction of harassment, we also were given various Exhibits.’ Exhibits one (I), three (3), four (4) and five (5), all were of a type that could be considered reprimands and certainly when considered in conjunction - 12 - with management’s previous actions, ;were designed to worry and harass Mr. O’Keeffe. Examining the pertinent parts of these Exhibits in order of their dates, they look like thi& Exhiiit 4 - letter dated April 9, 1981 reads in part: It is my decision, in this matter, that you be repri- manded and that this letter serve as a reprimand in this regard. Exhibit 1 - letter dated November 17, 1981 reads in part: I am informing you this letter will serve as, notice of a final warning. If your attendance does not improve to a satisfactory level, then I will ,have no alternative but to dismiss you for cause. Exhibit 3 - letter dated March 5, 1982 reads in park . ..unless there is a satisfactory improvement in your attendance he will have no alternative but to dismiss you. I would also reiterate Mr. Taylor’s suggestion concerning your interaction with your supervisors. Exhibit 5 - letter dated August 4,1982 reads in part: Furthermore, a detailed review of your personal file points out that since 1976, you have not only been counselled.on several occasions ._ regarding your attendance butalso reprimanded, sent for medical examinations, and have almost continually been subjected to providing mandatory medical certificates for every absence...~Moreover, in reaching my decision in this matter, I also carefully revietied your employment record with the ‘L Ministry, which profoundly signifies your persistent poor attitude towards your job. In light of all of the above, hearing in mind that twice management had been found to be in error in disciplining Ur. O’Keeffe and the threatening tone used in the exhibits quoted above, noting also that - 13- management in addition to referring to his absence, in Exhibit 5 they refer to his “poor attitude towards his job ‘I, there is no evidence to back this up, at least not to date. Perhaps the Ministry could produce evidence on this point if the Board were to hear all the evidence and rule on the merits of the case rather than as proposed that we make a determination on whether we have jurisdiction or not. Surely, with a record by management such as we have before us we cannot 1ightly.dismis.s the griever’s allegation of harassment. Surely with such a record, the griever is to be given every reasonable opportunity to prove his charge of harassment. The whole past history of management’s actions regarding this employee has been one of several; DISCIPLINARY actions taken without proper foundation. Here again it is at least possible that management has again exercised its power and subjected this fairly long-term employee with threats for various reasons, not only poor attendance, and been wrong in doing so. In any event in my judgement, this case cries out for a hearing based on the facts in order to determine who is right in this matter. As stated earlier I cannot agree with the Chairman’s easily disposed of ~allegations of harassment made .by the employee, without giving any reasoning for this conclusion. Nor can I accept the assumption the Chairman makes on page-4 of his report. If the oooorxnity ior evidence on :he :rievor’s a:~~nti~nce record and other important matters were adduc.ed at a hearing, ir :may turn out that the assumption was correct or possibly nor. Tne maxer before Ais Board is <whether we should hear all the evidence or dispose of rhe case x wtiar is certainly Less than a clear technical case of NO IURISDICTICN. I believe we do have jurisdiction, that This is noi: a jimpie case of illness alone being responsible ior. 3ogenteeism. !n my jud~emen7 ther2 is more than enough grounds to ihear the cas2 and make a judgemenr of he case on t>e -nerits af the evidence put befor the 3oaqd sf irbitratign and I would so rule. 3crokr 14, :9s2 P.. ?.usseU