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HomeMy WebLinkAbout1982-0313.Blake.82-09-22313/82 IN THE MATTER OF AN ARBITRATION Under The CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before -' THE GRIEVANCE SETTLEMENT BOAPxD / - Between: Before: Amalgamated Transit Union (Elton Blake! Grievor And The Crown in Right of Ontario (Toronto Area Transit Operating Authority) Employer R. L. Kennedy Vice-Chairman P. Warrian Membe: J. Morrow Member For the Grievor: E. G. Posen, Counsel Sarrister and Solicitor For the Employer: E. T. McDermott, Counsel Osler, Hoskin & Harcourt Hearing: August 12, 1982 - 2 - INTERIM AWARD On March 11, 1982, the employer placed in the Grievor's personnel file a document entitled "Notice of Counselling Advice". The Grievor alleges that the document in question constituted discipline without just cause contrary to the Collective Agreement and the grievance seeks that the notice be removed from the personnel file and that a declaration be made that the notice was delivered without just cause. The document in questionzead as follows: NOTICE OF COUNSELLING ADVICE EMPLOYEE NAME: E. Blake DATE OF ADVISEMENT: March 11, 1982 REASON FOR COUNSELLING: Deteriorating work performance SUPERVISOR'S COMMENTS: '<. As confirmed by.this man's attendance and incident of lateness record, he is unreliable. This combined with his poor work attitude, affects his quantity of work and dependability. Recently when placed in the position to work with others, his work mates personally requested that he be removed as he is a~disruptive,,argumentative and non-productive individual (witness to employee's complaint to me about Mr. E. Blake is L. Grech). He has difficulty to remain at his work station and his inability to stay on his job, usually verbalizes excessively with work mates. On occasion he has refused to fill out work orders and coupled with the fact that he never reveals any information about his assigned tasks make the foreman's task that much more difficult. On at least three occasions this man has been spoken to regarding these matters by myself, Mr. B. Davidson and Mr. T. Madrus. In the reply to the grievance, the employer took the position that the document, as was stated on it, was a counselling advice II - 3 - only and that there was no disciplinary action involved or intended. This position was maintained by the employer throughout the grievance procedure and at a later stage of the procedure, it was suggested to the Grievor that he was free to place a letter in the personnel file addressing the issues as he saw them. The matter proceeded to a hearing.before this Board ,and at the commencement of the hearing, Counsel for the employer took the preliminary position that the grievance was not arbitrable under the provisions of the Crown Employees Collective Bargaining Act or under the Collective Agreement on the ground s that the document did not purport in any way to discipline the Grievor and there was, therefore, no alleged breach of the Cdl~ective:~A&ement'~which would give us jurisdiction to entertain such.a grievance. Mr. .@Dermott stressed the distinction between disciplinary and non-disciplinary responses on the part of an employer and referred us specifically to Re Corporation of the County of Norfolk (1972), 1 L.A.C. (2d) 108 (Palmer) and Re Childrens Aid Society of Ottawa (1978), 18 L.A.C. (2d) 437 '.~, (Abbott). .It was his position that on the specific language of the document and as specified in the replies to the grievance, the document was correctly characterized as a non-disciplinary response and, therefore, not within the Collective Agreement provision requiring that there be no discipline without just cause. Mr. McDermott specified the desirability in the context' of industrial relations of dealing with such situations outside of the formal disciplinary processes. \. i - 4 - In addition, Mr. McDermott argued that since the document was something other than a disciplinary notation, it came within the rights of management as expressed in Article 6 of the Collective Agreement. In the absence of any specific limitation or restriction on those rights elsewhere in the Collective Agreement, it was Mr. McDermott's position that we had no jurisdiction to review the document. Reference was made to Re Libbey St. Clair Inc. et al (19811, 33 0.R. (2d) 768 (Div. Ct.) and Re Metropolitan Toronto Board of Commissioners of Police (19811, 33 O.R. (2d) 476 (C.A.). c When asked whether' or not the document would ever be referred to, in any future disciplinary proceedings involving the Griever, Mr. McDermott responded that it would not be used either as constituting an earlier disciplinary incident or as justifying greater severity in penalty with respect to the subsequent incident. It was, however, his positionthat it could be used as an indication of what the employee was aware of and to establish that the employee was aware of what was the employer's policy in the areas covered by the counselling. On behalf of the Union, Mr. Posen argued that the format of the document was clearly disciplinary. He suggested that it contained allegations of a litany of industrial offences purported to have been made or done by the Grievor which, if not subject to review within the arbitration jrocess, lea\-es these allegations unanswered on his record. Mr. Posen argued that the Grievor's concern in that regard was substantiated when on - 5 - June 15, 1982 he was given a document tha,t was'entitled "Notice of Discipline" and in that document, there was reference to the March 11, 1982 counselling in the following language: You were advised on March 11, 1982 that your work performance with regard to frequent absences from your work location was unsatisfactory. Mr. Posen concluded that the issue of whether or not something constituted grievable discipline depended on whether ore not it would have a prejudicial effect on the Grievor in future discipline or grievance proceedings. Reference was made to the authorities as summarized in Brown L Beattv, Canadian Labour Arbitration, at page 365. Reference was also made to Re Notre Dame Integrated School Board (19781, 22 L.A.C. (2d) 286 !Harris) and Re Owen Sound General and Marine Hospital (1977), 16 L.A.C. (2d) 11 (Abbott). In substance it was Mr. Posen's position that on the face of the document, it constituted discipline and that unless the'Grievor was permitted to challenge the factual matters raised, he was found to be prejudiced by its presence in his file. Similar issues as to arbitrability have come ~before this board on previous occasions. In Re Cloutier, 20/76, the board was considering an appraisal report and as appears from page 8 of the decision, the disciplinary aspect was not seriously pressed by the Grievor. The board found as a fact, that the letter was not intended to have a prejudicial effect on the Grievor's position in future grievance proceedings and that it, therefore, could not be characterized as a disciplinarq notice. A similar result was reached in Re Naik, 108/77, wherein . I ,. I - 6 - the board expressed the view that only if the warning will have a prejudicial effect on the employee's position in future grievance proceedings, in the sense of being used to build up a record against the employee, could it be characterized as disciplinary action. In Zuibrycki, 425/81, the board stated at page 5 as follows: 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 (non-disciplinary) 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. Finally, in Re Hamblin, 63/82, the decisions are reviewed and certain conclusions are reached by the board on page 12. \.. (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 chastise 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. . . .’ ., ,’ ,i - 7 - Cc) A non-disciplinary communication may counsel or recommend certain conduct to the employee, but it has no significance for future discipline. In other words, a non-disciplinary communication cannot prejudice the employee. Only in Zuibrycki does there appear to be a requirement of specific action taken against the employee at this time in order to constitute the matter disciplinary. The other authorities focus on the aspect of prejudice to the Grievor in future proceedings by reason of the notation and such a focus would appear more ( consistent with the authorities in the private and industrial sectors. c It is clear from the authorities that each particular case must be considered based on the nature of the particular document involved and the sort of matters that are being considered in it. In examining the notation of March 11; 1982, it may be noted in the first instance that it is not directed to the employee but is rather written in the third person in narrative style outlining certain events alleged to have taken place. This format would appear to be more consistent with the creation of a written record of certain incidents that have taken place, rather thancounselling and advice to a particular employee. Reference is made to attendance and lateness record, unreliability, poor work attitude, and the allegation is that he is a disruptive argumentative and non-productive individual. It is hard to imagine any type of employment relationship wherein conduct of that nature would come within acceptable standards of employee behaviour. The suggestion that the document'would be i used in future proceedings only for the purpose of establishing ~ . -8 - that the employee was aware of the employer's policy in the particular area, therefore, seems somewhat unrealistic. The document itself is written in an accusative manner, mentioning conduct that could only be described as culpable and it is not the sort of document one would expect to find where the employer was attempting to counsel, train or educate an employee with respect to work procedures and the employee's work progress. It would, therefore, be my conclusion that on'the plain language of the document, and notwithstanding the title the employer has chosen to give it, the document is disciplinary in nature and clearly will be prejudicial to the employee as there is nothing to make it inadmissible in future proceedings. We recognize the desirability of less formal and non-disciplinary approaches to certain employee.conduct and it is open to the employer to develop's system of counselling and advisory notices, which are worded more in the language of counselling and training and which are clearly specified not to be relevant or material in any future disciplinary proceedings. '. In the result, it is our conclusion that the employer's preliminary objection be dismissed. The hearing will reconvene i - 9 - on a date to be fixed by the Registrar for the purpos~e of hearing evidence and argument on the merits of the matter. DATED at Toronto, this 22ndday of September, 1982 $z& , R.L: Kennedy Vic& Chairma- P. Warrian Member v J. Slorrow Member