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Home My WebLink About1985-1076.Presley.88-05-25IN THE HATTER OF AN ARBITRATION Wnder THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEXENT BOARD Between: ------- OPSIm (Presley) Griever The Crown in Right of Ontario) (Ministry of Revenue) 'Employer Before: ------ B. Fisher Vice-Chairman I.J. Thomson Member I.J. Cowan Member For The Griever: _-------------- S.T. Goudge Counsel Gosling c Renderson Barristers c Solicitors For The Em&oyer: L.II. McIntosh ---------- -- -- Law Officer ninistry.of the Attorney General Crown Law Office Civil Hearings: -------- January 19th. 19StI I'ebruary 3rd. 1988 DECISION This case involves ti determination as to whether ornotthe griever was disciplined by reason of the fact that his supervisor told him that he could not return to work as a Property Assessor during the period of time that he was a candidate for an elective municipal office. It was agreed by both the Employer and the Union that initially this Board would determine whether or not the griever had been disciplined and only if the Board found that Hr. Presley was so disciplined would the hearing reconvene for the purpose of determining whether or not that discipline was justified in accordance with the provisions of Section II of the Public Service Act. This position is clearly stated by the Divisional Court in their review of the &Hurter decision (57 O.R. (2d) 40G). The relevant facts in this case are not really in dispute. The griever filed nomination papers to be a candidate for an elective municipal office in the municipality in which he lived which is located in the Region within which he is employed although not in the assessment “neighbourhood” for which he is responsible. Approximately a week and a half after he filed these papers he received a phone call from a supervisor who made the following statement to him, “You have done something wrong. You should not have filed your papers without first asking for an unpaid leave of absence. You cannot come into work while you are a candidate and if elected, you will not be allowed to return to work. You will have to withdraw your candidacy.” This telephone conversation took place on Friday afternpon and the griever did not return to work on the following Monday as he was unable to withdraw his candidacy until the following day. He then returned to work on Tuesday after showing the employer that he had indicated to the municipality that he would not campaign for the office nor would he accept the office if elected. -2- Initially he ms not paid for the MoMay, hmer, after filing a griwm, a settlement was quickly arraryed tihewas paid in full for them-day. The sole issue tcbedecidedatthistizeisvhetherorr&the cmmnts xmde by the griwor's supervisortohimon the Fridayniqhtccnstitute discipline. !Ihis issue of the enployeradvisi.ngthegriworofthecmsequences of his continued runnirg for office apparently contrary to the public Service Act hasmneupinanw$erofcaseswfrichwerereferredtobytheBoardby~3th parties. 'ihe lead* case is M&?U+X (Samels 745/84) in which the Divisional Court held that amrenls similartotheoneswde in this case warenot discipl* innabre. Another case, E&iy (Rqnor 265/80) again has similar facts. That case involved a griworwhomstoldbyhis supankortoeitherresiqn as the presidentofthelccalNDPRidirgAssociationorbsfixed. Inthatcase, thegriwordidxesignardgrievsdthatthe carumtsmadetohimwere disciplinaryinr&uze. lbeEcaxdheldthattkymrenctdbciplimrybut advisory and therefore inarbitrable. Arecentwsethat smmrizee Ecazdjurisdiction c41themeaningof disciple can be fad in the ZGUn%xg (Devlin 1988/86) released on Maxh 10, 1988. Inthatd~isicoltheBoardreviewedprevicuscasesparticularly Cloutier and &&z. AlthCUghthOS.S- involve different issues than the presentgrievance,inessenm, they stard for the preposition that telling anemplcyeethatifheundertakes aoxtainoxrse of actionthat ccnsequeuces will flm is not discipline. The essence of discipline is that there is punishment for past actions. This is qualitatively -3- differentfrctnthisgriwancs inwhi&thegriworwas si~@ytoldthat if heamtinuedinhispresantaausa of action certain consequences bculd flm lmt that if hediscontinuedhis acticn, no-varld follcv. In that sense, the- ofthesqemisorweresi@yadvismyarrldidnot containthe mcessaq elmentof~toqualify itasdiscipline. Ihe follmixg cmrple illustrab2s this differerrx. AnemplOy~waucS.l3pto hisfo~~says,'WhatvculdhappenifIveretostealatypewriter fmn my place of work?" Fzxsmnblythe suparvisor!xuldtall the enployea, "If yau steal the typewriter frm yax place of work, ycu will be fired.~~ Assume, heaver, thatthesnplcryescamuptohis employerard said, "ch, by the way, I stole a typewriter fmn my place of wxk." Fresmably the supsr?isorvould say, "You are fired." As~canseefrcmthisverys~lifiedwample,thereisanimportant qualitative difference betweenthetwo responses of the supervisor. Inthefirstsi~tiaar,the~l~kaskirgvhatvarld~ifhe follcued a cartain omrseofactimandtheen@oyer is advisiqhimofhhat hewwlddoifthatsituationwaretoarise. C.lsarly,theresporseoft.he enployer inthatsituaticm isnotdisciplineardcarldmtkegriwsd. Hmwer, inthescsxuxd situation&arstheacticmhasalready?xm urdertakenbythe eqlqee, the actofdismissal was clearlypmishrentand cmldbagriwed. Intheprssant-, the situation isonparwiththa first exai@e in that the suparvisormsrely irdicatedtotke g-riwor that if he continued in a certain comae of action, that is, continue to run for office, that he could not return to work and if elected, tid not hold that office and continue -4- his enploymmtwiththe Provircial gmanmant. It is, in -, I-m differentthana -isor irdicatirgto an emplqfaewhowas illthathe could not retumto~~rkuntil such time as hepm avalidmedical certificate irdicatirqthathewas ableto return toh~rk. Ihe requirement ~.forthegriwortndosamsthirq, that is cbtainauedical certificate or tn ‘resignfmn~ for offioe, is not disciplimry in itself, rather, it just sets dmncertainpreconditio~s for the mployee's returntowork. If theemployeadecidesto follmthe advice of his supervisor, as the griwor didinthiscase,thennodisciplinehasbeenimlxsedbytheemployerand thereforethereisnothirqtoarbitxate. Itmaywellbe that the qloyeehas to "@his head on the block" by not folicum the advi02 of his employer in ordertohwe the n&t.er a&itrable by the Boardbut s5ncethisBoazd~s authorityt0reviewmanageIr&nt's decisions flms strictly fmthe st&A.e tithe collective agreement, therecanbe no furtharenquiqbythisEcardiftha wnclusion is that no disciplinehasbeen iqmedbytheenploysr. lherefore, for referred to-e, the grievance is dismissed. V I Dissent " I. T?mtson, Member