GSB#2014-3040

UNION#2014-0502-0042

IN THE MATTER OF AN ARBITRATION

Under

THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT

Before

THE GRIEVANCE SETTLEMENT BOARD

BETWEEN

Ontario Public Service Employees Union (Basta)

Union

• and -

The Crown in Right of Ontario (Ministry of Government and Consumer Services)

Employer

BEFORE

David R. Williamson

Vice-Chair

FOR THE UNION

Jane Letton Ryder Wright Blair & Holmes LLP Counsel

FOR THE EMPLOYER

Lisa Compagnone Treasury Board Secretariat Legal Services Branch Counsel

HEARING

April 1, 2015

Decision

1Ms. Daniela Basta, the grievor, holds the position of Customer Care Representative with Service Ontario and is employed in a Service Ontario Call Centre. On August 14, 2014, Ms. Basta received written notification from the employer that arising out of an incident of inappropriate call handling on June 30, 2014, she was being suspended from work without pay for twenty days. A grievance filed by Ms. Basta on August 15, 2014 seeking full redress came before the Board for mediation-arbitration under article 22.16 of the collective agreement.

2The facts of what took place are not in dispute. The telephone call in question was recorded at the time it took place. This telephone call was played at the hearing and entered into evidence.

3The parties are in agreement that the grievor’s conduct warrants a disciplinary response by the employer, but disagree on the quantum of discipline given. As such, the sole issue to be determined here is whether a twenty day suspension without pay is appropriate discipline in the circumstances.

4The evidence shows that on June 30, 2014, the grievor spoke inappropriately to a customer calling into the Health Line for assistance in seeking treatment for mental health issues. Following this call, and for the balance of her shift and several days afterwards, Ms. Basta continued to speak about the incident without remorse with several of her colleagues and did not bring the matter to the attention of management. The evidence discloses that Ms. Basta acknowledged the incident had taken place when approached about it by management on July 18, 2014, but that there was no apology or expression of remorse offered by the grievor prior to the employer’s application of discipline on August 14, 2014.

5Mr. Bernie Herenberg is the Operations Manager of the Central Contact Centre Services Branch of Service Ontario, where he supervises the work of a number of call centre employees including Ms. Basta. It is the testimony of Mr. Herenberg that the group of Customer Care Representatives he supervises deal mainly with calls pertaining to the Ministry of Health and that these employees are expected to answer calls in a prompt, courteous, patient manner and provide accurate information. It is Mr. Herenberg’s further testimony that in trying to project the image of a caring organization the quality of customer service provided to clients is extremely important, with client satisfaction surveys conducted each quarter of the year and where the goal is that representatives are to exceed clients’ expectations.

6It is the evidence of Mr. Herenberg that he was deeply disturbed by the grievor’s conduct and the way she handled a fragile caller in the absence of provocation by the caller. He testified too that he was concerned also with the impact on the image of Service Ontario as a brand. Also important in determining the disciplinary response, testified Mr. Herenberg, was the way Ms. Basta had portrayed this incident to her co-workers, had not brought the matter to the attention of management, that she had not apologized for her actions, and had not said when asked what caused the incident which left a real possibility there could be a repeat occurrence.

[7[ In weighing all these foregoing considerations, said Mr. Herenberg, the termination of the grievor’s employment was a real possibility. What caused him to instead suspend the grievor for twenty days without pay was the grievor’s nineteen years of employment with a clean record. Only after the discipline was issued, testified Mr. Herenberg, did the grievor express remorse and acknowledge that her behaviour had been inappropriate.

8Testimony was given by the grievor Ms. Daniela Basta, who said that she has always worked in the call centre during her time with the Ontario Public Service, and always in connection with the Ministry of Health. The grievor testified that her conduct in the matter of the incident was a big mistake, showed lack of professionalism, and that she should not have let the caller get under her skin. She also expressed her remorse that the incident occurred, said that she did not adhere to either her own or Service Ontario standards, and said it was poor judgment on her part not to go to management immediately after the call. Ms. Basta testified that she has never acted this way before during her many years of doing this work, that her behaviour was a mistake, that she has learned her lesson, and that this kind of incident will not happen again.

9The grievor concluded her evidence by stating that at the time of the incident she had been in her job for close to twenty years with a clean record and good attendance, considered herself to be a loving and caring person, and felt that the imposition of a twenty day suspension without pay was excessive. Ms. Basta agreed that her behaviour in the telephone call incident in issue was unacceptable and that no member of the public should be subjected to that. She agreed also that if she did something like this again her employment ought to be terminated.

10It is the position of the employer that a significant disciplinary response is appropriate and that a twenty day suspension is in the correct range in the circumstances and reflecting the severity of the grievor’s misconduct. The employer submits that the message to be conveyed to the grievor by the discipline has to be that any further misconduct of this type will result in termination of her employment and that it is only because of her long clean record that she is not being terminated for this incident. As such, the employer urges that the discipline imposed by it remain in place and not tinkered with or fine-tuned by the arbitrator as it is in the correct range of disciplinary response in the circumstances.

11It is the position of the union that the grievor understands the severity of her conduct and that any repeat incident of this type will result in the termination of her employment. The union submits that the mitigating factors of the grievor’s long service with a good record and that the incident being an isolated one and not pre-meditated should work in her favour to reduce the period of suspension. It is noted by the union that the grievor has expressed her remorse, provided her assurance that such a situation will not happen again, and has not sought to excuse her behaviour. The union submits that the penalty of losing twenty days pay is too severe and that the suspension can be reduced without the employer’s message being lost on the grievor. The union accordingly asks that the arbitrator amend the quantum of discipline to a lesser amount.

12The employer, the union, and the grievor, are in agreement that the grievor’s conduct in the incident in issue was a very serious matter. The grievor is in agreement that should it happen again the employer would have cause to terminate her employment. The employer has a valid business interest in having its staff interact with the public in a professional, courteous, civil, and accurate manner. Indeed, notwithstanding that this was an isolated incident and out of character according to the grievor, the employer would have been justified in dismissing Ms. Basta from her employment for her conduct in this incident were it not for her long work history and clean work record. It is these positive latter work attributes that have saved her employment from being a casualty of this incident.

13Following the incident on the telephone on June 30, 2014, the evidence demonstrates that Ms. Basta was not immediately contrite and full of remorse for her behaviour. Indeed the evidence shows the opposite. Nor did Ms. Basta inform management of the incident and express regret for her conduct at any time prior to July 18^th, some two weeks later, when management came to her to speak about the matter. The evidence shows that it was only after disciplinary action was taken by management on August 14^th that the grievor expressed remorse for her conduct. It took the application of discipline for the grievor to comprehend the severity of the matter.

14In regards to the matter of the quantum of discipline that was given to the grievor, it must be found that it falls in the upper part of the range of discipline that is reasonable in the full circumstances of this matter. Where the discipline imposed by the employer falls inside the range of what can be considered reasonable, as here, it is not for the arbitrator to try and fine-tune the discipline. As such, the twenty day suspension from work cannot be found to be excessive. The quantum of discipline imposed makes clear that the misconduct was serious, yet falls short of termination, thereby recognizing the application of mitigating factors as set out in the disciplinary letter of August 14, 2014.

15Accordingly, the grievance is dismissed.