GSB# 2690/96; 1543/01

UNION# 97D318; 97D319; 97D320; 02A112; 02A113; 02A114; 02A115; 02A116; 02A117; 02A118; 02A119; 02A120; 02A121; 02A122; 02A123; 02A124; 02A125; 02A126; 02A127; 02A128; 02A129; 02A130; 02A131; 02A132; 02A133

IN THE MATTER OF AN ARBITRATION

Under

THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT

Before

THE GRIEVANCE SETTLEMENT BOARD

BETWEEN

Ontario Public Service Employees Union (Ross)

Grievor

• and -

The Crown in Right of Ontario (Ministry of the Solicitor General and Correctional Services)

Employer

BEFORE

Bram Herlich

Vice-Chair

FOR THE UNION

John Brewin Ryder Wright Blair & Doyle Barristers and Solicitors

FOR THE EMPLOYER

Christopher Jodhan Counsel Management Board Secretariat

HEARING

April 9, 2003.

DECISION

Hearing in these matters continued on April 9, 2003 at which time the parties argued a further preliminary issue which had been deferred from the last day of hearing (see the decision dated April 2, 2003 in these matters).

The employer has identified 6 of the 28 grievances initially referred to me as the subject of the instant preliminary objection. Each of these grievances claims unjust and unfair discipline has been imposed on the grievor. In each of these cases the employer asserts that no discipline whatsoever has been imposed. And since the assertion of discipline is the very foundation of each of the grievances, the employer asserts that if no discipline has been imposed, there is no basis upon which the grievances can proceed and they ought therefore to be dismissed at this early stage.

For its part, in response to the employer’s motion, the union asserts that each of the impugned employer initiatives do constitute disciplinary action. At a minimum, the union asks that I defer ruling on the employer’s motion until the conclusion of the proceedings. In relation to this latter point, I note that the argument of this preliminary motion was made solely on the basis of the grievance documents and the corresponding written documents complained of in the grievance (where applicable). Apart from some very basic undisputed facts forming the outline of these proceedings, no viva voce or other evidence was considered.

Despite their obvious disagreement about the disposition of the employer motion, there was no real dispute between the parties as to the legal framework within which the issue is to be decided. I was referred to the case of Superior-Greenstone District School Board [2000] O.L.A.A. No. 335 (Swan) as well as to numerous decisions of this Board: Bacchus, 0911/88 (Watters); Fitzgerald, 1489/88 (Samuels); and Black, 885/90 (Dissanayake).

It is not necessary for me to review the case law in elaborate detail. It is sufficient for our current purposes to adopt a number of observations which emerge from these cases and which the parties did not dispute.

Critical to any effort to distinguish disciplinary from non-disciplinary initiatives will be an assessment of purpose and effect. Punitive and/or rehabilitative impacts are undoubtedly the hallmark of discipline. However, from that perspective, while the employer’s expressed intent will be important to any ultimate conclusion, it will not always be determinative. The employer’s declaration, for example, that a particular letter is not and was not intended to be disciplinary and will not be relied upon in any future proceeding may, in many cases, be sufficient to dispose of the matter. Where, however, such a proclamation is less than consistent with an objective view of the contents of the document in question (e.g. where the impugned document contains a litany of complaints relating to culpable behaviour – see the decision in Blake, 313/82 (Kennedy) discussed in Bacchus), it will not prevent a conclusion that the action was disciplinary in nature.

The cases (certainly those at this Board) typically involve determining whether a particular written communication is disciplinary or merely an exercise in “counselling”. Other cases (such as Superior-Greenstone) may involve an assessment of whether a change in work assignment can, in appropriate circumstances, be construed as a disciplinary response.

None of the cases referred to deals with the specific issue of whether a suspension with pay can be construed as a disciplinary response. Three of the grievances which are subject to the instant motion involve complaints about the imposition or extension of a suspension with pay. Employer counsel conceded, rightly in my view, that the mere fact that a suspension is imposed with pay is not sufficient to thereby irrevocably fix its status as non-disciplinary. Essentially, however, the employer asserts that the suspension(s) in question were administrative in nature imposed pursuant to the terms of section 22(1) of the Public Service Act in order to facilitate an investigation. The investigation ultimately resulted in the imposition of a suspension without pay which was undoubtedly disciplinary (and which gave rise to one of the other grievances before me – one to which the instant motion does not apply).

I also take the opportunity to note that not only did the employer proclaim that none of the acts complained of were disciplinary and that they would not be relied upon to support any subsequent discipline, it also specifically agreed that if the union is successful in the grievance regarding the suspension without pay (which all agree is a disciplinary matter), then all correspondence which relates to that suspension (and which includes all of the correspondence subsumed in the grievances which are subject to this motion) will be removed from the grievor’s file.

But while some of the dividing lines between disciplinary and non-disciplinary responses may occasionally be less than clear, no perplexing complexity arises in this case. The six grievances in question fall into two categories. And the dividing line between these two categories resides in the extent to which any arguable grounds can be advanced to support the conclusion that the impugned employer conduct was disciplinary in nature. In the first category of cases there is little support for the conclusion that any discipline has been imposed; in the second there is none.

In the first set of grievances (three in number), it is the imposition or extension of a suspension with pay which gives rise to the grievances. And while the employer’s assertions about the non-disciplinary nature of the suspension may well be borne out by the evidence, I am unable on the basis of only the grievance documents and impugned letters to confidently arrive at any ultimate conclusion about whether or not these were disciplinary measures. I prefer to make that determination on the basis of all of the evidence. Thus, I am unable to grant the employer’s motion in respect of these three grievances and, instead, defer consideration of the issue until the conclusion of the proceedings.

The grievances (also three in number) in the second category under consideration share one significant characteristic. On the basis of the grievance documents and the letters asserted to be disciplinary in each case, I am simply and utterly unable to see any basis whatsoever for any conclusion that the letters amount to the imposition of discipline. Neither am I of the view that any elaborate discussion or analysis is required to illuminate my conclusion. The documents speak for themselves.

Each of these three grievances is dated September 4, 2001. Grievance No. 02A123 (found at Tab 12 of the Book of Grievances) complains that the contents of a letter dated July 13, 2001 written by the Superintendent of the facility and addressed to the grievor constitutes unjust and unfair discipline. The text of the letter reads:

On Thursday, July 12, 2001 information was received by Senior Administration that a possible attempt to smuggle tobacco products into the institution would/could take place on that day.

Additionally reported information led to appear that if such an attempt was made a staff member, you, would make that attempt. Following a search of the work area under your control such tobacco products were found secreted in various places within that work area.

Given that disciplinary action may occur as a result of this meeting you may attend with a representative who may participate on your behalf. Should you fail to attend, the meeting will proceed in your absence and you will be advised of my decision in this matter.

While it does refer to the possibility of future disciplinary action (and such was ultimately imposed and grieved), there is nothing in this letter which supports any possible conclusion that it, in and of itself, amounts to the imposition of any discipline.

Grievance No. 02A124 (found at Tab 13 of the Book of Grievances) complains that the contents of a letter dated July 25, 2001 written by Morris Zbar, Deputy Minister and addressed to the grievor constitutes unjust and unfair discipline. The text of the letter reads:

This will acknowledge receipt, via facsimile, of your two letters and attachments dated July 13 and your letter of July 19, 2001.

I have provided copies of your correspondence to Mr. Iain Leithead, Regional Director, Adult Institutional Services, Central Region, and have asked him to follow up on the concerns you expressed.

Thank you for bringing this matter to my attention.

There is simply nothing in this letter which supports any possible conclusion that it amounts to the imposition of any discipline.

Grievance No. 02A132 (found at Tab 21 0f the Book of Grievances) complains that the contents of a letter dated August 27, 2001 written by John F. Rabeau, Assistant Deputy Minister, Adult Institutional Services and addressed to the grievor constitutes unjust and unfair discipline. The text of the letter reads:

Your letter of July 27, 2001, addressed to Mr. Morris Zbar, Deputy Minister of Correctional Services, regarding your suspension from duties, has been referred to me for reply.

I note that you have been suspended from duty without pay for 20 days, for the period from August 10, 2001 to September 6, 2001, with a return to duties on September 7, 2001. You have not been dismissed from employment, as you suggest in your letter. Detailed information with respect your suspension from duty was provided to you in a letter dated August 9, 2001, from Mr. Carl DeGrandis, Superintendent, Toronto Jail.

Your objection to your not being able to bring a non-OPSEU representative with you to your meeting with the superintendent has been noted. While I appreciate that you may have concerns with respect to the abilities of the institution's local OPSEU representative, I understand that you were given sufficient time and opportunity to obtain appropriate OPSEU representation from outside the institution. I am, therefore, satisfied that you were represented in accordance with the provisions of the collective bargaining agreement.

There is simply nothing in this letter which supports any possible conclusion that it amounts to the imposition of any discipline.

In short, I am persuaded that the employer’s motion ought to prevail in respect of the three grievances just considered. I am satisfied that the grievances and, more specifically, the letters to which they refer simply fail to establish any arguable basis for any conclusion that discipline was imposed on the grievor through those documents. The grievances are all predicated upon the assertion of inappropriate discipline. No discipline was imposed. There is therefore no basis upon which these grievances can proceed. They must therefore be and hereby are dismissed.

In summary, I have deferred consideration of the employer’s motion in respect of the three grievances related to the imposition or extension of a suspension with pay and consequently the employer’s motion in respect of those grievances is, at least until all of the relevant evidence is before me, dismissed. I have, however, granted the employer’s motion in respect of Grievances Nos. 02A123, 02A124, and 02A132 and these grievances have been dismissed.

Hearing in this matter will continue as previously scheduled on May 5, 2003.

Dated at Toronto this 24^th day of April 2003.