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HomeMy WebLinkAbout1982-0397.Galluzzo.83-08-31397182 462182 463182 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGA .IN I, NG ACT Before Between: CUPE (Rocco Galluzzo) THE GRIEVANCE SETTLEMENT BOARD - And - Griever The Crown in Right of Ontario (Ministry of Municipal Affairs and Housing) Employer Before: G. Brandt S. Schachter P.H. Coupey Vice Chairman Member Member For the Grievor: T. Edwards National Representative Canadian Union of Public Employees ions For the Employer: A.P. Tarnsuk Consultant Central Ontario Industrial Relat Institute Hearings: July 25, 1963 August 12, 1983 i_ t !, ” -2- AWARD The Grievor is an employee of approximately 3 years seniority and is classified as a Labourer. He is employed in the Ministry of Municipal Affairs and Housing and, at the time in question in these proceedings, was working for the Metropolitan Toronto Housing Authority with duties to be performed in connection with the maintenance of the Alexandra Park Housing Project. The issue in this case concerns the propriety of discipline imposed on the Grievor on 3 separate occasions during the summer of 1982. In each case the complaint of the Employer related to an allegation that the Grievor had failed to work at a rate which was satisfactory to the Employer. The first incident occurred on May 12th, 1982. The Grievor had completed the garbage pick-up and was to attend to the litter pick-up. Normally this is a job which can be completed by the morning break. However, on this particular day the Grievor did not have the assistance of another employee who normally works with him and was consequently responsible for picking up all the litter in the area. His supervisor, Mr. Robert Maloney, observed him at 11:30 a.m. still picking up litter. He spoke to the Grievor who told him that he needed extra time to complete the job - half an hour according to Mr. Maloney - two'and a half to three hours according to the Grievor. Mr. Maloney extended the time and told the Grievor that after lunch he was to go over to the Community Centre and cultivate the shrub beds and cut the grass. Later that afternoon Mr. Maloney returned to the site of the Community Centre and discovered that none of the cultivation or trimming had been done. The Grievor stated that the reason why he was unable to attend~to the duties at the Community Centre was that he had.spent 'the entire day picking up litter _ between 12 and 13 bags in all. The next morning,.,May 13th; he had a conversation with the Grievor at which time he told him that he did not feel that the Grievor's work had been satisfactory. However he did not regard this meeting as a disciplinary meeting. His purpose was simply to inform the Grievor that his ~ output had been unsatisfactory. Notwithstanding the fact that, as Mr. Maloney indicated in his evidence, his meeting with the Grievor on May 13th was not a disciplinary meeting, he nevertheless issued a letter dated May 2&h, 1982 addressed to the Grievor in which he alleged "you failed to perform duties as assigned" and stated that he was giving a written reprimand with the view that in the future "you will under- take and perform the work assigned to and required of you in your job". He further stated that in the event that the Grievor failed to correct himself he would be subject to disciplinary action. The first grievance herein requests $ that this letter of reprimand be withdrawn from the Grievor's personnel file. " The second incident, giving rise to another letter entitled "letter regarding low productivity" occurred on July 13th, 1982. Some time during the morning Mr. Maloney told the Grievor that, after he had finished with the morning litter pick-up, he was to trim some hedges and cultivate soin;.f]ower .beds at Whitecourt Place". The total length of the hedges was 60 to 65 metres and Mr. Maloney estimated that the job ought to have taken the Grievor between 1 and 1 l/2 hours. Later on that day, at approximately 3:15 p.m., Mr. Maloney saw the Grievor leaving the work area with his tools and assumed that he had finished the job. Consequently he did not speak to him at that time. However, upon closer inspection he discovered that only half of the hedge trimming had -4- been completed and since the Grievor had left for the day, it was not possible to speak to him. The next morning, at 11:15 a.m., Mr. Maloney returned to the site and observed that the Grievor had completed all of the hedge trimming and had completed about 40 yards of cultivating. He asked the Grievor why he had quit early the previous day and inquired as to why he hadn't completed his assignment. (On July 29th the Grievor was given a letter of reprimand for leaving work early on July 13th. That was grieved but the grievance was withdrawn at the second stage). The Grievor's evidence respecting the July 13th incident is that as the shrubs ~hadn't been taken care'of for a long tiw,..they wem.bard to cut. He also stated that, in his examination-in-chief, that much of his time (perhaps 4 to 5 hours) on July 13th was spent removing branches of trees which had been left on the property by contractors. However, on cross-examination he admitted to some confusion as to whether or not he might have done that job on July 13th or July 14th. It was the evidence of Mr. Maloney that this job was done on July 14th. Insofar as that conflict is concerned,.we accept the evidence of Mr. Maloney. There was also evidence introduced by both the Grievor and other Union witnesses with respect to the numbers of shrubs which were to be trimmed. Mr. Maloney stated initially that there were 4 shrubs at the rear of each of the houses surrounding the Court. The Union evidence is that there are as many as 14 or 15 behind each house and no fewer than 10. However this conflict is to be resolved we do not believe that it makes a material difference to the issue. There is no dispute as to the length of the hedges requiring trimming. The significance of there being more than one row of shrubs would bear on the width of the hedge, a factor which could increase the workload to some extent but, not in our opinion, substantially. ,. -5- ., .~ The letter regarding low productivity recited these events and stated that Prjor to qujtting time, on July 13th, the Grievor had been advised by Mr. Maloney that his work output was not satisfactory and that an improvement would be expected the next day. Evidently this was not accurate since Mr. Maloney himself testified that he hadn't had an opportunity to speak to the Grievor that day. The letter went on to state that "you are advised that your level of production iS not cost effective and that immediate action on your part is necessary to correct this matter. Should you fail to do so, a recommendation to senior management for corrective measures will be necessary." This letter was apparently treated as a letter of reprimand since the grievance, filed the following day, requests that the "letter of reprimand" be withdrawn from the file. During the course of the grievance procedure the matter was reviewed 'by Mrs. Lo, the Project Manager and the grievance was denied. There was a further response at step 2 of the grievance procedure when Mr. Kelk, the Housing Manager of District "E", reviewed the facts and, while denying the redress sought in the grievance, stated as follows."my findings at this point are that the letter is not of a disciplinary nature, but it is to identify to you that your work output is simply not cost effective. It also suggests to you that you should increase your level of prod,uctivity and if you fail to do so, your supervisor must make appropriate recommendations in light of the present cost constraints that are current." Although Mr. Kelk appeared to have characterized his letter as non-disciplinary, when the matter was processed to step 3 the Employer appeared to have considered the original letter as a letter of reprimand. Mr. P. Peterson the Acting General Manager of the Metropolitan Toronto Housing Authority, by letter dated December 7th, 1982, stated that "under the circumstances I consider a letter of reprimand to be both warranted and appropriate to the circumstances". He went on to deny the grievance. -6- The third incident, which gave rise to a one day suspension. occurred on July 27th, 1982. On this day the Grievor was assigned to cultivate 3 flower beds on the east and west side of the Project's Dundas Street parking lot. The total area involved was 1,680 square feet and the Grievor was required to turn over the soil taking care not to damage the flowers that had been planted. Mr. Maloney stated that the area had been cultivated in early June when the flowers had been put in and had been cultivated once more before July 27th. He estimated that, considering the various factors including the dry condition of the soil, the'full job should have~taken'betdeen 3 and ~3 l/2;hours to complete. In fact the Grievor took over 9 hours to complete the job. The Grievor stated that the soil had been very hard and that he had asked Mr. Maloney if water could be put in it to soften it - a request which.was denied. He also stated that, for a period of one hour on July 27th, he was required to deliver some letters to tenants of the Housing Project. Consequently he estimated the amount of time that he spent on the cultivation of the flower beds was between 7 and 8 hours. Again it appears that the Grievor is mistaken as to the day that he was required to deliver the letters. Apparently he was required to deliver some letters on the occasion of the first incident on May 12th. Indeed that was an issue in that particular incident. When cross-examined on this point the Grievor admitted to some doubt as to which of the two days was the one in which he had been asked to deliver the letters. In the circumstances we prefer the evidence of the Employer on this question. The Grievor was disciplined in all three instances for low productivity. It is now necessary 'to examine the evidence respecting the level of work output which could be reasonably expected in the circumstances surrounding these grievances. -7- In addition to the evidence of Mr. Maloney, set out above, the Employer also called as a witness Mr. Peter Foley, a Landscape Projects Co-ordinator with the Ministry of Housing. He acts professionally as a consultant to various Housing Authorities in the Province and has had experience in the estimation of the time that it takes to perform various kinds of landscaping functions. It was his evidence that the 31 metres of hedge trimming which was completed by the Grievor on July 13th ought, on average, to have taken between ,45 minutes to 1 hour to complete. He did not think that this estimate would be effected materially if there were two rows of shrubs to be trinnned. Moreover he stated that in July the shrubs would have achieved the majority of their growth for the season by this time and would, if anything, have been easier to trim than in, for example, the Spring of the year. He also indicated that if the season was unusually dry this would if anything make the job easier since these conditions would not be conducive to substantial growth. With respect to the cultivation of the flower beds at the Dundas Street parking lot it was his evidence that an area of that size should, under average conditions, take between 1 l/2 and 1 3/4 hours but that allowing for the dry sandy condition of the soil it was his opinion that two hours would be adequate to complete the work. Under cross-examination he admitted that if the soil conditions were hard and dry that would increase the time required. He further admitted that soaking the ground would tend to make it easier to break up the crust. However he notedthat his two.hour~estimate had allowed for variations in the amount of'time required to compjete ,the~work. The Union's principal witness concerning this question was Mr. S. Nasso, a Labourer who performs the same work as that of the Grievor. He is also Chief Steward of District "E". On the.first incident he stated that if he had been required to pick up between 12 and 15 bags of litter it would take a full day to complete the work. He was not cross-examined on that evidence. As to the July 13th incident at Hhitecourt he stated that he had examined the shrubs at that area and had seen that some of them were in quite bad condition requiring a lot of work. He disagreed with the evidence of Mr. Maloney that the job ought to have taken 90 minutes. When asked how long he thought it would take him, he answered a full day. However, on cross-examination he was asked whether or not he agreed that this was too long a time if all that was done was hedge trimming v&h -no-weeding~-o?-cultivating. He responded that it depended a lot upon the conditions and agreed that a full day would be too much time if it hadn't been necessary to pick up the contractors' branches. In view of our finding that the Grievor was not asked to clear away these branches until the following day, Mr. N&so's estimate of the reasonableness of the time the Grievor took requires some qualification. Mr. Nasso also gave evidence with respect to the third incident. He supported the Grievor's evidence that the ground was very hard on that particular day. He also testified with respect to certain evidence which had been given by Mr. Maloney, evidence to the effect that prior to July 27th, the same job as the Grievor was required to do on that day was done by another labourer, a senior groundsman, Mr. G..,Minicuci, and that he had completed it in 3 to 3 l/2 hours. Mr. Nasso had been working with Mr. Minicuci at that time and he stated that when Mr. Minicuci had done the job there were no flowers there, that Mr. Minicuci was able to work with a pick while the Grievor had to work with a shovel and take care not to damage the flowers~thereby.adding some time to the job. One other factor relating to the question as to the reliability of the Employer's estimate based on the time taken by Mr. Minicuci concerns the question as to whether or not he had done the same job as that which was required of the Grievor. Although Mr. Nasso indicated that it was the same job, Mr. Maloney, on cross-examination, admitted that it was only slightly over half of the area in question. However, he qualified that admission by noting that Mr. Minicuci, as Senior Groundsman, was also required to perform other functions and that his work on the job was interrupted. Mr. Minicuci himself stated that he had cultivated only about 700 square feet of the area and that this had taken him about 4 hours. Under cross-examination he was asked whether or not he had ever spoken with Mr. Maloney and whether or not he had told Mr. Maloney that he had completed the full job in 3 hours and further told Mr. Maloney that he didn't want to have to repeat that in public. He denied any such conversation. In reply evidence the Employer, Mr. Maloney, stated that he asked Mr. Minicuci how long the job had taken him, that Mr. Minicuci stated that he knew that this was an issue (apparently referring to these proceedings) and said that "between you and me - 3 hours". This was in apparent reference to 2 of the 3 areas in question. The first issue which calls for consideration is whether or not the Employer took sufficient care to ensure that the Grievor was made aware of the fact that it was unsatisfied with his performance, that it expected him to improve and that he was being disciplined for a, failure to perform at the level expected of him by the Employer. Submissions were made by the Union to the effect that such was not the case. It was suggested that Mr. Maloney, his immediate supervisor, did not make known his concerns at the time in ouestion. 3 i. ,i - 10 - Moreoever, it was suggested that the letters sent to the Grievor were written in a style which the Grievor, with his limited facility in the English language, could not understand. Further it was noted that, in respect of he second incident, Mr. Kelk, at Step 2, had characterized the "letter regarding low production" as non-disciplinary, a position apparently inconsistent with that of both Mr. Maloney below him and Mr. Peterson, above him. The Board is not persuaded that the Grievor was unaware of the Employer's concerns with his work performance. Although the Grievor gave evidence with the assistance of an interpreter, he nevertheless demonstrated a facility in English permitting us to conclude that he would have had no difficulty in understanding Mr. Maloney when told ,of his shortcomings. Moreover, the evidence established that he took the letters which he had received to Mr. Nasso, his Steward, and was informed by Mr. Nasso as to what they meant. When one examines the content of those letters it is clear not only that the Grievor was told that the Employer was concerned by the amount of his work and his level of production and also that he was told that he faced more serious disciplinary action if he did not improve his work performance. The crucial question in this case is, however, whether or not the Grievor acted, or failed to act, in such a way as to warrant being disciplined. There is no doubt that he failed to carry out the work assignments within the time that his Employer expected him‘to complete them. On behalf of the Employer it was suggested, in argument, that his failure in this regard was deliberate and that he had, for reasons of his own, developed what was referred to as an "attitudinal problem". There is no evidence before the Board which would support any conclusion that the Grievor's failure to carry out his work assignments was a result of any deliberate determination on his part to work more slowly than he was capable of working. If such an inference could be drawn it would be 3 x i( ;. - 11 - possible to conclude that, by deliberately working slowly, the Grievor had in effect "refused" to carry out a work assignment. As such one of the fundamental requirements for insubordination would have been established. What the Employer has attempted to do in this case is to.establish that the Grievor's level of productivity fell so far below that level which could be reasonably expected of him, that the only explanation for his failure to complete his work assignment lay in the conclusion that his actions were deliberate. As noted above the evidence with respect to the amount of time that the Employer could reasonably expect to be sufficient for the completion of the various assignments in question is in sharp conflict. The Board has set out that evidence above and has noted the conflict. In the opinion of the Board, the evidence of the Union should be preferred. Our principal reason for so concluding is that the evidence of the Union all came from persons who have had to perform the various tasks in question and who are thus in a better position than others to assess the impact that varying conditions would have on the amount of time necessary to complete a particular job. Thus, unlike Mr. Foley, the Grievor, Mr. Nasso and Mr. Minicuci, were all familiar with the condition of the shrubs at'whitecourt and the condition of the 'soil at the Dundas Street parking lot. Unless we conclude that the Union witnesses were testifying falsely under oath, which we are not prepared to do, there is no good reason not to treattheir ,evidence.as to ~_ the length of time that it would take to complete these particular assignments on the occasions in question as reliable. Moreover, it may be noted that the evidence given by Mr. Foley with respect to the length of time that ought to have been expended on the Dundas Street parking lot did not assume the presence of flowers in the beds. Obviously, where it is necessary to take care not to damage existing flowers, that time would have to be expanded somewhat. G. 7 - 12 - For similar reason the fact that Mr. Minicuci had done this job in less time (either 3 hours or 4 hours depending on which evidence is accepted) is not conclusive since he too had done the cultivation at a time when there were no flowers. In addition he had only worked on 2 of the 3 beds (approximately one-half of the area) as compared to the full area worked by the Grievor. Therefore we conclude that the imposition of discipline on the Grievor in this case was improper in that the Grievor, on the evidence as we find it, performed his duties to the best of his ability and not in a manner inconsistent with the way in which those duties would have been performed in similar circumstances by other Employees. It may well be that the Employer regards this rate of output as generally unsatisfactory. If that is the case the Employer can establish standards which it expects employees to meet and, if the Union believes that those standards are unreasonable, that issue may form the basis of a grievance. However, if an employee is going to be exposed to discipline for failure to conform to the standards expected of him, he is at the least entitled to know what those standards are. We are not satisfied that in this case the Grievor was sufficiently informed as to what was expected of him. He was told in the various letters sent to him that the Employer had some concern with his level of productivity. However, beyond that, he was unaware of what was required of him and, since we find as a fact that he attempted to carry out his work assignments to the best of his ability, given the conditions in which he was working, there is nothing in his conduct which requires "discipline". We find no misconduct on the part of the Grievor which requires that "corrective" measures be taken. In conclusion the Grievance is allowed and the Employer is directed - 13 - to remove the Grievor's personnel file the letters of May 26th, 1982, July 15th, 1982, and August 5th, 1982. It is further ordered that the Grievor be reimbursed for wages and benefits lost as a result of the~one day suspension improperly imposed. DATED at London, Ontario this 31 day of August, 1983. J S. Schachter Member "1 concur" (see Addendum attached) P.H. Coupey . I ADDENDUM I have joined the award of the Chairman for the sole reason that I concur I have joined the award of the Chairman for the sole reason that I concur with his view that with his view that ” if an employee is going to be exposed to discipline ” if an employee is going to be exposed to discipline for failure.to conform to the standards expected of him, he is at least for failure.to conform to the standards expected of him, he is at least entitled to know what those standards are”. entitled to know what those standards are”. I also agree that; although “there is no doubt that he (the Griever) failed to carry out the work assignments within the time that his employer expected him to complete them”, The failure to carry out his work assignments was not deliberate on his part. While the evidence with respect to the amount of time that would be reasonable to complete an assigrmmnt “is in sharp conflict”, I cannot agree with the Chairman”s opinion that the evidence of the Union should be preferred on the basis that “the evidence of the Union all came from persons who have performed the various tasks in question”. Particularly when it became evident that the productivity of this group as a whole is not very high and should not be used as a ‘bench-mark’. The evidence provided by the Supervisor and the Landscape Projects Go-ordinator was clear, concise and credible compared with that of the Union and included what I consider to be a charade with respect to the alleged inability of the Grievor to speak or understand English. This became apparent when the Griever was able to answer in Englis’n, a fairly difficult question from the Chairman before it was translated. While I feel that the Grievor had not given his employer “a fair day’s work for a fair day’s pay”, I concur with the view that he is entitled to be served with formal notice that his lack of productivity will no longer be tolerated before formal discipline be imposed. P.H. Coupey Member