HomeMy WebLinkAbout1984-0206.Selkirk.84-12-20!
Between:
Before:
IN THE MATTER OF AN ARBITRATION
Under
THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT
Before
THE GRIEVANCE SETTLEMENT BOARD
For the Grievor: M. Rotman
Counsel
n
For the Employer:
L. Stevens
Co-ordinator, Grievance Section
OPSEU
P. Radley
Staff Relations Officer
Personnel Bra.nch
Ministry of Correctional Services
Hearing: August 20, 1984
OPSEU (Russell Selkirk)
- and -
Grievor
The Crown in Right of Ontario Employer
(Ministry of Correctional Services
R. J. Roberts Vice Chairman
R. Russell Member
W. Lobraico Member
2.
OECISICN
I" this arbitration,the grievor grieved a letter which was .
issued to him after a corrective interview regarding his attend-
ance. At the outset of the hearing, the Ministry objected on
the ground that this letter was not disciplinary in nature and as a result,
the Board was without jurisdiction. Thereafter, in order to expedite matters,
the Ministry agreed to permit the Board to hear evidence upon the merits
and reserved argument upon its preliminary objection until after this
evidence had been adduced. For re&sons which follow, the preliminary objection
of the Ministry is allowed. The Board does not have jurisdiction to 'review I
the merits of the matter.
The evidence disclose that the griever was a Correctional Officer
at the Hamilton-Wentworth Detention Centre. On November 3, 1983, Mr. A.
Johnson, the Assistant Superintendent of this Institution, called the griever
for a corrective interview regarding his attendance. What went on during this
interview was set forth in the following letter, which'was issued on November
4, 1983, by Mr. Johnson:
A. Johnson, Assistant Superintendent
Hamilton-Wentworth Detention Centre
Mr. R. Selkirk, Correctional Officer 2
Corrective Interview - Attendance
This will confirm an interview held November 3rd, 1983
to discuss Mr. Selkirk's attendance and sick leave credit
usage during the 12 month period ending September, 1983.
At the interview it was noted that during this period
Mr. Selkirk was absent from duty on six separate occasions for
a total of six days. Five of these absences were u7 conlunction
with his regular days off or or on weekends.
3.
In reply blr. Selkirk explained that all the absences
were caused either by influenza or recurring problems with I gout.
Mr. Selkirk was informed during this interview that
poor attendance is detrimental to an employee's record and
zest disruptive to the efficient operation of our institution.
Furthermore, that failure to improve could result in further
courses of action being taken.
When the griever signed this letter he added a hand-written notation stating
I signed the notation keeping in mind the fact that I disagree
with my attendance being a problem in this circumstance and
that I do not think that it should be made apparent on my file.
In his testimny at the hearing, the griever indicated that he
was particularly concerned with the allegation in the above letter, that
“five of these 161 absences were in conjunction with regular days off or
on weekends." The grievor testified that in right of the shift schedule
that he worked, i.e., with Tuesday and Wednesday generally being.his days
off, it would have been virtually impossible to avoid having his absences
be in conjunction with regular days off or on weekends. He was concerned
that the allegation in the letter might, unexplained, tend to raise the
inference that he was not ill on those days but was malingering.
The griever also objected to the reference'in this letter to
"poor attendance." He stated that he believed his totalof 6 days off
within a one-year peripd was not out of line with that of other employees
at the Hamilton-Wentworth Detention Centre, or for that matter, the
absentee rate for the antire Ministry. The Union then led evidence to
bear this out. It was shown that for the quarters ending June 30, 1982
and September 30, 1982, the absenteeism rate for bargaining unit staff
4.
service-wide averaged 10.16 days per year, while the absenteeism rate for
management staff averaged 8.71 days per year.
The griever also expressed concern that in calling him in for
a corrective interview, and making the interview a matter of record in
his personnel file, the Ministry was discriminating against him. Two co-
workers at the Hamilton-Wentworth Detention Centre testified that in the
past they had recorded absentee rates which were much worse than that of
the griever; yet neither ever was called in for a corrective interview
! or had a memO similar to that relating to the griever placed in their files.
On cross-examination, however, these witnesses conceded that much of their
absenteeism was in the nature of large blocks of time, rather than“absences
of one or two days at a time as apparently was the case with the griever.
The general law relating to whether a letter such as the one at
hand constitutes discipline was set forth in Brown. and Beatty, Canadian
Labour Arbitration (2d), as follows:
Most comrmnly, the issue of what constitutes
a disciplinary sanction arises with respect to warnings.
From the reported awards it would appear that arbitrators
have generally characterized written warnings as the least
severe of the traditional forms of industrial Sanction
available to the employer. However, although there is
no doubt that the discharge, suspension or warning of a*
employee is a legitimate and proper exercise of the
employer's disciplinary authority, an issue may arise as to
whether any particular warning is disciplinary in nature.
It follows from what arbitrators conceive to be the essence
of disciplinary sanctions that a written warning which
forms part of the griever's employment record, which is
intended to induce her to alter her behaviour aild which may
have a prejudicial effect on her position in future grievance
proceedings, will likely be regarded as being disciplinary in
nature. Conversely, where the written warning forms no part
of the employee's record f-r the purposes cf determining the
i. 5.
severity of future discipline, orwhere it does not involve
a change in status or a monetary loss, or where the warning
merely indicates what disciplinary or other action might
to taken in the future, arbitrators have ruled that such
notations are not disciplinary in nature... . a. at 468-69.
In order to constitute discipline, a written warning must, inter alia, --
be likely to have a predicial effect on the position of the griever in
future grievance proceedings.
The jurisprudence of the Grievance Settlement Board appears to
be much to the same effect. For example, in Re Hamblin and~Ministry of
Correctional Services, GSB Nos. 63/82 and 68/83 (Samuels), the Board
enunciated three criteria for differentiating disciplinary from non-
disciplinary warning letters which were similai- to the criteria enunciated
above. In Re O'Keefe and Ministry of Correctional ServiCes,GSB No. 111/82
(Draper), the Board applied these criteria to conclude that a letter warning
an employee regarding innocent absenteeism was non-disciplinary in nature.
The tone of this letter was considerably sharper than the tone of the letter
at hand. It stated, for example, "I am informing you that 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." In concluding that this letter was non-disciplinary in
CA nature, the Board emphasized that the warning did not impose a penalty
for blameworthy conduct and it could not bc seen as one of a projected
series of disciplinary measures by the Ministry. Seeid. at 7-9.
In the present case, the Ministry stressed that the letter at
hand was not intended as discipline and did not form any part of the griever's
disciplinary record. The Board was assured that in assessing discipline
!
6.
against the griever in some future incident, no reference would be made
to this letter. It was emphasized by the Ministry that in the text of the
letter there was no reference to any reprimand or discipline, no allegation
of fault on the part of the griever and no allegation that the absences
of the griever were not bona fide. --
In light of these submissions , we must reach the conclusion that
the letter at hand will not have any predicial affect on the position of
the griever in future grievance proceedings. In other words, the letter is
non-disciplinary in nature. Accordingly, this Board lacks jurisdiction to
reach the merits of the grievance.
Before leaving the matter, we might make a few observations which
might obviate difficulties with respect to future wdrning letters of this
type. It would seem appropriate to make such observations at this point
in light of our understanding from the evidence that the Ministry currently
is involved in a" active attendance improvement program. It seems to us that
the main concerns expressed by the griever regarding the letter were generated
by a degree of ambiguity within the text of the letter itself, for example,
the heading of the letter did not indicate that this was a record of non-
disciplinary counselling. While the letter did not overtly find fault
with the griever's absences, it was worded in such a way as possibly.to
raise a" inference thereof. Moreover, there was no indication of where the
griever's absenteeism record stood in relation to that of other employees
at the Institution. These circumstances, we believe, might well lead any
employee to become uneasy at having such a" ambiguous document placed in
his file. It would have been much more a~qXoprla:C <or t!le Ifli"istl-y to
0 i 7.
make express in the document its non-disciplinary character, and hence,
its lack of prejudice to the employee in any future disciplinary proceedings.
The preliminary objection is allowed. The Board does not have
jurisdiction to entertain the merits of the grievance.
DATED at London, Ontario, this 20th day of December 1984.
--Y? ‘j /’ “A
I , L, __ ..‘< +. ..,. .-
R. Russell, Member
. //tdi& &f&l.&&
W. Lobraico. Member
Re: 206/84 OPSEU (Russell Selkirk) and Crown/Ontario (Ministry of Correctional Services
ADDENDUM
I concur with the decision of the Vice Chairman
that "the Board does not have jurisdiction to review the
merits of the matter;" however, I believe some additional
advice to the parties is in order.
This is a typical example of a grievance which
should not have been brought before the Board. I am sure
that the Grievor and his representative were assured during
the earlier stages of the grievance procedure that the
November 4, 1983, "memo to file" was not intended to be
disciplinary and would not be used against him in the
future. Hopefully, the Union with its vast experience in
these matters tried to dissuade the Grievor from proceeding
to the Board level knowing that it.would not only be futile
but put the parties and the Board to considerable expense.
There must be a keen awar,eness by all concerned
of the large expenditure of tax payers money it takes to operate the grievance procedure for the Provincial Civil
Service and its Crown Agencies. While "justice must be,
seen to be done" these rights of grievance should not be
routinely exercised without some thought of the monetary
consequences.
, .
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. ,
& @.(-#@-
w . Lobraico,
Member