GSB# 2004-0005, 2004-3234, 2004-3235
UNION# 2003-0103-0011, 2004-0103-0007, 2004-0103-0008
IN THE MATTER OF AN ARBITRATION
Under
THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT
Before
THE GRIEVANCE SETTLEMENT BOARD
BETWEEN
Ontario Public Service Employees Union (Griffiths)
Union
- and -
The Crown in Right of Ontario (Ministry of the Environment)
Employer
BEFORE
Michael Watters
Vice-Chair
FOR THE UNION
Jim Paul Grievance Officer Ontario Public Service Employees Union
FOR THE EMPLOYER
Felix Lau Counsel Ministry of Government Services
HEARING
May 10, 2006.
Decision
Following a full day of mediation on September 23, 2005, the parties signed the following Memorandum of Settlement:
“ MEMORANDUM OF SETTLEMENT
IN THE MATTER OF A NUMBER OF GRIEVANCES
BETWEEN:
ONTARIO PUBLIC SERVICE EMPLOYEES UNION (Ron Griffiths)
MINISTRY OF THE ENVIRONMENT
AS REFERENCED BY GSB FILE NUMBERS (2004-0005; 2004-3234; 2005-3235)
Without precedent or prejudice, and without admissions expressed or implied, the parties agree to the following terms as full and final resolution of the above referenced grievances:
The letter of reprimand dated October 25, 2004 shall be removed from the grievor’s personnel file and replaced with a letter of counsel, inserted in the Regional administration file.
The letter of October (date illegible), 2004 as referenced by the grievance and the response of November 5, 2004 shall be removed from the grievor’s personnel file and inserted in the Regional administration file.
Management is prepared to authorize and institute the reinstatement of three (3) days vacation leave as referenced in the respective grievance, within thirty (30) days.
The union and the grievor shall withdraw the above noted grievances.
The parties agree that Vice-Chair Michael Watters will remain seized of the terms and implementation of this agreement in its entirety.
The aforementioned letter of counsel shall be drafted by the grievor’s manager. The content of the letter shall be subject to the approval of the parties.
Signed at London, Ontario this 23rd day of September 2005.”
I note from the face of the handwritten Memorandum of Settlement that paragraph 6 thereof initially read as follows:
“6. The aforementioned letter of counsel shall be drafted by the grievor’s manager subject to consultation through the mediator. The contents of the letter shall be subject to the approval of the mediator.”
I was informed that the change to the second sentence of paragraph number six (6), namely the change from “subject to the approval of the mediator” to “subject to the approval of the parties”, was made at the insistence of the Union. To be clear, this change was agreed to by the Employer.
On October 6, 2005, Mr. R. Younger of the Employer’s Human Resources Branch forwarded a draft letter of counsel to Mr. J. Paul, the Union’s representative in this proceeding, for his and the grievor’s review. By e-mail of October 14, 2005, Mr. Paul advised Mr. Younger that the draft was not acceptable. It appears that the wording of the letter of counsel was still an outstanding issue between the parties as of mid-January, 2006. On January 31, 2006, Mr. Younger advised Mr. Paul that the “official version on record” was as follows:
“ October 5, 2005
MEMORANDUM
TO: Ron Griffiths Environmental Assessment Co-ordinator Southwestern Region
FROM: Claude Lafrance Manager, Technical Support Southwestern Region
Re: Memorandum of Counsel
Subject to the events which took place in Barrie, Ontario on October 13, 2004, I wish to advise you that this memorandum of counsel will be attached to and form a part of your file record in terms of your duties and responsibilities in future.
During the October 13, 2004 meeting in Barrie relating to the Class Environmental Assessment for the Barrie Sewage Treatment Plant expansion, you took it upon yourself to make comments to Lake Simcoe Environmental Management Strategy stakeholders, (economic and otherwise interested parties) which were contrary to the ministry’s interests, intentions, and undertakings under approved provincial commitments. Your comments denigrated the work of other ministry employees who had compiled a study related to the Lake Simcoe initiative. It was further reported that your remarks brought the ministry’s involvement in this project into question.
When I spoke to you later in my office on October 19, 2004, you conducted yourself in an (sic.) belligerent manner by evading responsibility, not acknowledging that your conduct was unacceptable and placing blame on others for your outspoken behaviour.
Under these circumstances and in order to prevent further such incidents of unprofessional behaviour contrary to the ministry’s code of professionalism, this occurrence is hereby documented as a memorandum or counsel and advice. My expectation in future is that you will take careful note of this correspondence and govern yourself accordingly.
Claude Lafrance
CFile M. Parker, APEP Unit Supervisor R. Younger, Human Resources Branch ”
The Union continued to view the language of the above letter as unacceptable. As the Employer was not prepared to make any changes to it, the Union requested in February, 2006 that the matter be referred to arbitration before this Vice-Chairperson.
A hearing was subsequently scheduled for May 10, 2006 in London, Ontario. At the outset thereof, the Union’s representative advised that the Union and the grievor did not agree to the content of the Memorandum of Counsel, as reproduced above, and that I was being asked to address the issue pursuant to the reservation of jurisdiction provided for by paragraph number five (5) of the Memorandum of Settlement.
As noted previously, paragraph number six (6) of the Memorandum of Settlement provides that the letter of counsel drafted by the grievor’s manager “shall be subject to the approval of the parties” with respect to content. The threshold question in this proceeding is whether the Union acted reasonably in withholding its approval of the content of the Memorandum of Counsel as prepared by the Employer. The parties did not present any viva voce evidence at the hearing. They were content, rather, to have the issue resolved on the basis of their submissions and the exhibits filed. The exhibits include the Letter of discipline dated October 25, 2004 and the Employer’s Stage 2 response dated February 11, 2005 signed by Mr. Dale Henry, Director, Standards Development Branch, Environmental Sciences and Standards Division.
It is the position of the Union that its refusal to approve the content of the letter of counsel was reasonable in all of the circumstances. The argument presented by the Union’s representative may be summarized as follows:
i. it is not apparent to the Union that the letter of counsel was placed in the Regional administration file, as required by paragraph number one (1) of the Memorandum of Settlement. The Union’s representative noted, in this regard, that the first paragraph of the letter simply references the grievor’s “file record” and that the letter was copied to the “C File”. As a consequence, the Union is not satisfied that the Employer has fully met its obligations under the settlement with respect to where the letter should be placed;
ii. the Union questions why the letter of counsel was copied to Mr. Younger and to Mr. M. Parker, APEP Unit Supervisor. I was informed at the hearing that Mr. Parker is the grievor’s immediate supervisor. From the perspective of the Union, the letter of counsel appears to have been more widely circulated than intended when the settlement was reached;
iii. the Union objects to the tone of the language contained within the second and third paragraphs of the letter of counsel. On its reading, the language is prejudicial, accusatory and intrusive. Reference was made, inter alia, to the following excerpts from the letter: “Your comments denigrated the work of other ministry employees…”; “…you conducted yourself in an (sic.) belligerent manner by evading responsibility…”; and “….not acknowledging that your conduct was unacceptable and placing blame on others for your outspoken behaviour.” The Union’s representative submitted that such language is premised on unproven allegations that the grievor engaged in culpable conduct. He suggested that the wording of the letter of counsel is intended to create a negative and prejudicial document for purposes of the grievor’s record. Indeed, he asserted that the letter is harsher in certain respects than the original letter of reprimand. The Union’s representative further claimed that the letter of counsel contains statements which the Employer’s Designee at Stage 2 was prepared to delete from the letter of discipline;
iv. on the Union’s analysis, the letter of counsel is unduly retrospective, in the sense that it focuses on past conduct, which the Employer perceives as culpable. It was argued that, instead, the letter should be crafted in a more productive and forward looking manner so as to better advise and instruct the grievor as to the Employer’s expectations relating to what is either appropriate or inappropriate conduct; and
v. it is unnecessary, at this juncture, to determine if the letter of counsel is a true letter of counsel or, rather, a letter of discipline. The Union’s representative argued that I do not have to address this question, and the related jurisdictional issue, at this stage in the proceedings. He reiterated that I am here called upon to decide whether the Union could reasonably decline to approve the content of the letter of counsel pursuant to paragraph number six (6) of the Memorandum of Settlement. He observed that the Union attempted, albeit unsuccessfully, to address its concerns prior to referring the case to arbitration.
By way of remedy, the Union asks that the Employer be ordered to revise the letter of counsel so that it better conforms with the parties’ intent at the time they executed the settlement. In the alternative, and in recognition of the delay which has occurred, this Vice-Chairperson was invited “to void” the letter of counsel.
In response, it is the position of the Employer that the Union cannot reasonably reject the letter of counsel, as presently worded. The argument advanced by counsel for the Employer may be summarized as follows:
i. the grievor will not be prejudiced or disadvantaged by the letter of counsel as it is not disciplinary, and cannot be used in future as the foundation for more serious discipline;
ii. the Memorandum of Settlement is silent as to the content of the letter of counsel. More specifically, it does not preclude the Employer from being retrospective. Counsel submitted that the Employer could properly look back in time and reference those events leading to the need for a letter of counsel. On his analysis of the authorities, letters of counsel frequently address past events so that the affected grievors are better able to understand how to conduct themselves in future. Counsel further suggested that the cases also reflect that such letters may address issues of fault and culpability, and that an Employer may pass judgment on an employee’s behavior therein. On his reading, the tone of the language found in the instant letter of counsel is not dissimilar to that used in other letters referenced in the jurisprudence; and
iii. from the perspective of the Employer, it made “huge efforts to downgrade” the language initially used in the letter of reprimand. Counsel noted that the letter of counsel is just one (1) page in length, while the letter of reprimand was two and a-half (2 ½) pages in length. On his reading, the former document represents an efficient effort at summarizing the detail contained within the letter of reprimand.
Counsel for the Employer referenced the following authorities during the course of argument: Naik (Now Taharally), 108/77 (Swinton); Sundberg, 1998/86 (Devlin); Bacchus, 0911/88 (Watters); Fitzgerald, 1489/88 (Samuels); and Black, 885/90 (Dissanayake).
In reply, the Union’s representative submitted that what is material, for purposes of this case, is the content of the letter of counsel, not its length. He noted that the letter of counsel captures most of the content of the letter of reprimand “in a more concise but offensive way”. He also claimed that there is no need to address the jurisprudence as I do not, at this point, have to determine whether the letter of counsel is, in fact, disciplinary. Rather, the sole issue for decision, given the wording of the Memorandum of Settlement, is whether the Union acted reasonably at the time it refused to approve the contents of the letter. The Union’s representative, nevertheless, referenced the following authorities: Blake, 313/82 (Kennedy); and Kennedy, 357/96 (Briggs).
The starting point for analysis is the Memorandum of Settlement of September 23, 2005. Paragraph number six (6) thereof, as noted, provides that the content of the letter of counsel, initially to be drafted by the grievor’s manager, shall be “subject to the approval of the parties”. It follows from this provision that the Union has a right to not approve the content, as long as such right is reasonably exercised. Additionally, in paragraph number five (5) of the settlement, the parties agreed that this Vice-Chairperson was to “remain seized of the terms and implementation of this agreement in its entirety”. There is, therefore, no question relating to my jurisdiction in this case, as the parties have expressly provided for it in their agreement. Put another way, I find that I possess the present authority to determine whether the Union has reasonable grounds to reject the letter of counsel prepared by the Employer. In this respect, this dispute is distinguishable from all of the awards relied on by the parties. There is no equivalent to paragraphs five (5) and six (6) in any of those cases. The issue in all of the prior awards was whether the letter of counsel was, in fact, disciplinary and whether the dispute was arbitrable. While this may subsequently become an issue in this case, it is not the issue I am now called upon to address. The simple question before me, at this point, is whether the Union reasonably exercised its rights under the Memorandum of Settlement.
I accept the Union’s submission that it is not clear from a reading of the Memorandum of Counsel that the document was to be inserted into the Regional administration file, as agreed to in the Memorandum of Settlement. The first paragraph of the Memorandum of Counsel simply states that it will be attached to and form part of the grievor’s “file record”. It does not specifically reference the Regional administration file. Additionally, that file is not expressly copied at the bottom of the Memorandum of Counsel. Rather, reference is there made to the “C File” only. As a consequence, it is not apparent from a review of the content of the Memorandum of Counsel that the Employer has complied with the terms of settlement relating to the placement of the former document. While this may initially appear to be a minor matter, I note that it was a point of some significance for the parties, as evidenced by the language contained in the first two (2) paragraphs of the Memorandum of Settlement. Having said this, I think that the uncertainty around where the document was to be placed should have been clarified by the parties early on in their discussions. Unfortunately, it was not until the hearing, and in response to a question from this Vice-Chairperson, that it was learned the Employer had, in fact, placed the Memorandum of Counsel in the Regional administration file.
I further accept that the Union could reasonably have some concern over the future use of the Memorandum of Counsel. The first paragraph of same advises the grievor that it will form part of his file record in terms of his duties and responsibilities in future. Further, and as previously noted, the document was copied to Mr. Younger and Mr. Parker. I am satisfied that the content of the Memorandum of Counsel is somewhat vague as to its future effect and that the Union could have some legitimate concern about that.
I have considered, at some length, the content of the second and third paragraphs of the Memorandum of Counsel. On balance, I am unable to find that the language and the tone thereof is objectionable, as claimed by the Union. Clearly, the content of the two (2) paragraphs is retrospective. However, I think that past events can be referenced in a letter of counsel for purposes of setting the context for the Employer’s concerns. Put another way, such a reference brings to a grievor’s attention specific conduct which the Employer wishes to address short of discipline. I note that in most, if not all, letters of counsel, the conduct complained of is unproven in any formal sense.
I have compared the Memorandum of Counsel to the letter of reprimand. I do not accept the Union’s submission that the former document is harsher in tone and content. Rather, I simply consider the Memorandum of Counsel to be a briefer summary of the events and, to a lesser extent, the Employer’s concerns. Without doubt, there is some overlap between the two (2) documents as both strive to capture the allegations made against the grievor surrounding his participation in the meetings of October 13 and October 19, 2004. I do not view this as objectionable. In a general sense, conduct perceived as improper is described in a letter of reprimand to set the context and provide the reasons for the resulting discipline. In contrast, the conduct is described in a letter of counsel in order to instruct the employee as to what the Employer sees as problematic conduct to be avoided in future. Simply put, conduct cited in a letter of counsel is, and should be, done for a different purpose. I think that this distinction applies here.
I have also reviewed the Employer’s Stage 2 response. I have not been persuaded that much turns on this document. On the face of the written response, there is some uncertainty as to precisely what the Designee would have deleted from the Letter of discipline. Mr. Henry was not called as a witness to explain the ambiguity. In all of the circumstances, I remain unconvinced that the Stage 2 response has much to offer vis a vis the ultimate resolution of this dispute.
After a consideration of the Memorandum of Counsel, in its entirety, I conclude that it should be crafted in a more forward looking manner so as to better advise and instruct the grievor as to how he should conduct himself in future. The document, as presently worded, focuses almost exclusively on the incident in question and on the subsequent meeting with Mr. Lafrance. While it speaks to the grievor’s conduct on those occasions, the Memorandum of Counsel fails to clearly establish the Employer’s expectations for the future. I find it somewhat ironic that a statement of such expectations was addressed, in a prospective sense, at pages two (2) and three (3) of the letter of reprimand. Having spent a full day in mediation and another day of hearing with the parties, I think it important that the Employer’s expectations for the grievor’s future conduct be clearly expressed. This form of counselling and instruction is necessary in order to ensure that the grievor has a full understanding and appreciation of the Employer’s position as to how he should conduct himself in future when out in the public domain on Ministry of Environment business. In short, I find that the Union can reasonably reject the content of the Memorandum of Counsel given that it does not sufficiently set out the Employer’s expectations for the grievor’s future conduct. To be clear, this, in my judgment, is a fundamental purpose of a letter of counsel.
In summary, I conclude that the Union reasonably exercised its rights under the Memorandum of Settlement when it declined to approve the content of the Memorandum of Counsel as prepared by the Employer. Accordingly, the Employer is ordered to revise the Memorandum of Counsel for presentation to the Union. Given the difficulty which has arisen in this case, it may be prudent to craft the draft in consultation with the Union. I trust that the parties will be able to resolve this outstanding issue without the need for further arbitration. I do, however, remain seized under the terms of the Memorandum of Settlement. I decline to void the Memorandum of Counsel, as requested by the Union. In the circumstances of this case, I think it would be wrong from a labour relations perspective to void a settlement provision which was freely negotiated by the parties. In this instance, the more appropriate order is one which gives effect to the terms of that agreement.
Dated at Toronto, Ontario this 30th day of June, 2006.