[1983] OLRB Rep. September 1585
0219-83-U Canadian Union of Public Employees, Local 79, Complainant, v. The Corporation of the Municipality of Metropolitan Toronto, Respondent
BEFORE: R. D. Howe, Vice-Chairman, and Board Members E. J. Brady and H. Kobryn.
APPEARANCES: J. David Watson, M. Harper, Anne Tonks and Jack DeBoer for the complainant; Janice D. Johnston, George Coleman and Vilma Kalu for the respondent.
DECISION OF THE BOARD; September 16, 1983
This is a complaint under section 89 of the Labour Relations Act in which the complainant trade union (the "Union") alleges that the respondent contravened sections 3, 64, and 66 of the Act on or about April 19, 1983 by terminating the employment of the grievor, Anne Tonks.
Mrs. Tonks is a Registered Nurse who commenced employment with the respondent in the Homes for the Aged Division of its Community Services Department on May 26, 1982 as a casual nurse at Cummer House Home for the Aged (the "Home"). When she hired the grievor, Vilma Kalu, the Home's Director of Nursing, explained to her that casual employees are hired to fill in on short notice for permanent and temporary employees who are absent from work (due to illness, vacation, maternity leave, etc.) Mrs. Kalu also made the grievor aware of the fact that cancellation of casual employee hours often occurs on short notice, such as where the permanent or temporary employee whom the casual fts, and gradually came to feel resentful and frustrated about the fact that she was not scheduled to work as manyployment, Mrs. Tonks made it known to management that she was anxious to work as many hours as possible and that she hoped to ultimately obtain a full-time position with the respondent. Since the Home's greatest needs for casual employees occur on night and weekend shifts, the grievor was scheduled to work a substantial number of such shifts. While the grievor was content to work some night and weekend shifts, she was also desirous of obtaining some day shifts, and gradually came to feel resentful and frustrated about the fact that she was not scheduled to work as many day shifts as she thought appropriate.
Although the grievor' s nursing performance was adequate, Mrs. Kalu was advised in February 1983 by a memo from one of the Home's Dietary Supervisors that the grievor had been "causing a few problems in the cafeteria" and upsetting some cafeteria employees by her actions of coming to the cafeteria and demanding service shortly before its scheduled closing times, and by refusing to leave the cafeteria after it closed for cleaning purposes. It appears from the evidence adduced before as in respect of those incidents that there may well have been some fault not only on the part of the grievor, but also on the part of some members of the cafeteria staff. However, it is unnecessary to make a conclusive determination with respect to that matter; it is sufficient for the purposes of this decision to note that management viewed the matters to be of sufficient importance that Isolyn Jackson, the Home's Assistant Director of Nursing, called the grievor in for a meeting, advised her that her unsatisfactory attitude toward the cafeteria staff would not be tolerated, and warned her that if any other incidents occurred, further steps would have to be taken.
The incident which triggered the grievor's termination occurred on Sunday, April 3, 1983. When she arrived at work at 3:00 o'clock that afternoon, the grievor was advised that the day shift which she had been scheduled to work on Tuesday, April 5th had been cancelled since the Home was overbooked with R.N. 's for that shift. When the grievor received that information she became extremely upset and demanded to know if she was "the last one scheduled or called in". When further discussion indicated that the Home was unable or unwilling to meet her demand that someone else be cancelled so that she could work the April 5th day shift, the grievor indicated that she would not be in on the evening shift that she had been scheduled to work on Thursday April 7th, nor on the Saturday April 9th and Sunday April 10th shifts that she had been scheduled to work. Having regard to all the evidence, we have no doubt that the grievor cancelled those three shifts as an act of retaliation against the respondent for cancelling her April 5th day shift. Although, as it turned out, the respondent did not have any real difficulty in finding a replacement for the grievor on those shifts~ management nevertheless, not unreasonably, characterized her retaliatory action as irresponsible, unprofessional, inconsiderate, and unacceptable. It is clear from the evidence that the shifts which the grievor cancelled are often among the most difficult ones for which to find replacements. Thus, the grievor' s precipitous act could well have caused the Home to be understaffed on those shifts and could, therefore, have adversely impacted upon resident care.
Mrs. Kalu received a written report concerning that incident early the next morning from one of the relief supervisors who had witnessed it. She then met with Frederick Fishenden, the Home's Administrator (and senior member of management) to discuss that matter and other matters (not relevant to the present proceedings) pertaining to the operation of the Home. After reviewing the facts of the incident and the grievor's employment record, Mr. Fishenden concluded that the grievor's employment should be terminated since he found her action, and the attitude which prompted it, to be "unprofessional, irresponsible, inconsiderate, and quite unacceptable". Although Mrs. Kalu agreed, she persuaded Mr. Fishenden to permit her to meet with the grievor to hear "her side of the story"~ and to determine if there was any remorse on the grievor's part or other indication that she was prepared to change her attitude.
After meeting with Mr. Fishenden, Mrs. Kalu spoke with the two alternate supervisors who were present on April 3rd when the grievor cancelled her three shifts on April 3rd "to be sure [she] had [her] facts correct". She then discussed the matter with Sandra Prittes, the Manager of Residents Care, who was also of the view that termination was the appropriate response to the grievor's action.
Meanwhile, the grievor had attended at the Home at approximately 10:00 o'clock on April 4th and presented the following letter to Mrs. Jackson:
I am available as you know for all shifts as I work nowhere else and I need the work!! My preference is full time employment or two part-time jobs as I have to work to support myself.
I prefer days but of course I will help out and do my share of EVENINGS AND WEEKENDS!! So while I am available full time as I am now and have been since last May, please consider assigning me for days and work in the middle of the week too, not just evenings and week ends.
PLEASE!!
I do need to spend some time with my family and friends on weekends and in the evenings.
If a full time position became available no matter what shift. I would certainly take it but I understand the "freeze" on employment.
Thank you for your consideration
(signed) (Mrs.) Anne Tonks R N
Shortly after receiving it, Mrs. Jackson gave that letter to Mrs. Kalu.
After several unsuccessful attempts to contact the grievor by telephone, Mrs. Kalu eventually made contact with her on April 8th and arranged for the grievor to meet with her later that day. However, the grievor phoned back and asked if the meeting could be rescheduled since she had another appointment at that time. Accordingly, Mrs. Kalu arranged to meet with the grievor on April 11th. There are cases, and what inferences may reasonably be drawn from the totality of the evidence. Having regard to those factong. In resolving those conflicts and making our other findings of fact in this decision, we have considered a number of factors including the firmness of the witnesses' respective memories, their ability to resist the influence of interest to modify their recollections, the consistency of their evidence, their capacity to express their recollections clearly, and their demeanour. We have also assessed what is most probable in the circumstances of the case, and what inferences may reasonably be drawn from the totality of the evidence. Having regard to those factors, we prefer and rely upon the evidence of Mrs. Kalu where it conflicts with that given by the grievor.
The grievor came to the meeting with Mrs. Kalu on April 11th expecting to be told that management had arranged to give her more day shifts and fewer night and weekend shifts. Thus, she was surprised and annoyed when Mrs. Kalu began to question her about the April 3rd incident. Although she did not deny the incident, the grievor attempted to pass it off as a trifling matter of little importance, which should not be of any concern to Mrs. Kalu. As the discussion continued, the grievor became increasingly angry and reiterated her position that someone else should have been cancelled on the Thursday (April 5th) day shift rather than herself. Far from apologizing for her retaliatory act of cancelling her other three shifts, the grievor made it quite plain to Mrs. Kalu that if the Home ever again cancelled a shift that had been pre-booked for her, she would do exactly the same thing. That meeting, at which Mrs. Kalu also referred to the aforementioned cafeteria incidents, continued for approximately three hours. Mrs. Kalu, who was "totally floored" by the grievor's attitude, told her that she would not be scheduled to work any further shifts until after Mrs. Kalu had discussed the matter with Mr. Fishenden. As the grievor was leaving, she commented that Mrs. Kalu seemed to have "a lot of documentation" and expressed the view that she would like to have her own documentation. Mrs. Kalu, who by this time had managed to calm the grievor down, indicated that she thought that was a good idea. The grievor then said in a pleasant, non-threatening manner, "I think I'll need some advice as to this documentation. I think I will go to the Union. What do you think?" Mrs. Kalu replied that she could not advise the grievor as to whether or not she should go to the Union, but that she (Mrs. Kalu) did not have any problem with her seeking advice from the Union.
On April 13th Mrs. Kalu met with Mr. Fishenden, reported to him what had occurred during her meeting with the grievor on April 11th, and agreed with him that the grievor should be discharged. As a result of that joint decision, Mrs. Fishenden caused the following letter to be sent to the grievor on or about April 15th, 1983:
Following your meeting with Mrs. Kalu, Director of Nursing, regarding the incidents which have occurred in the past, culminating with the incident on the 3rd April, 1983, we have given this matter considerable thought and feel your attitude is totally unacceptable.
Since we require our casual staff to be available according to our requirements we feel that your services do not meet these criteria and you will therefore be terminated as of April 19, 1983.
It was submitted on behalf of the complainant that the respondent did not have "just cause" to discharge the grievor and that the absence of such cause should lead the Board to infer that the grievor was terminated for "some other reason". While he conceded that the respondent "does not have any general anti-union animus", counsel for the complainant contended that although Mrs. Fishenden and Mrs. Kalu did not in any way oppose the union's organizational campaign with respect to the respondent's casual employees, the Board should nevertheless infer that they terminated the grievor's employment in order to "clean house" before the Union obtained a "just cause" clause and grievance procedure which would make it more difficult to discharge an employee such as the grievor. In the alternative, he argued that even if the grievor's conduct was deserving of some disciplinary action, her discharge was so far out of proportion to her misconduct as to justify the Board's intervention through the adoption of a non-motive approach to section 64 of the Act in the circumstances of this case.
Section 89(5) of the Act provides:
On an inquiry by the Board into a complaint under subsection (4) that a person has been refused employment, discharged, discriminated against, threatened, coerced, intimidated or otherwise dealt with contrary to this Act as to his employment, the burden of proof that any employer or employers' organization did not act contrary to this Act lies upon the employer or employers' organization.
In Charterways Transportation Ltd., [1982] OLRB Rep. Jan. 5, at paragraph 15, the Board wrote as follows:
The Board reviewed the general principles which govern in a case where the reverse onus established under section 89(5) applied in the recently reported Alpha Laboratories Inc., case [1981] OLRB Rep. July 823. The Board reviewed these principles at para. 3 as follows:
"In the Barrie Examiner case, [1975] OLRB Rep. Oct. 745, the Board
stated:
.... the effect of the reversal of the onus of proof is to require the employer to establish two fundamental facts. First, that the reasons given for the discharge are the only reasons and, second, that these reasons are not tainted by any anti-union motive. Both elements must be established on the balance of probabilities in order for the employer to establish that no violation of the Act has occurred.'
It is not the function of the Board in the present case to decide whether or not the respondent had just cause to discharge the grievors. Our jurisdiction is limited to determining whether the respondent discharged the grievors because they were supporters of the complainant trade union or were exercising any other rights under the Act (see Toronto Star Limited, [1971] OLRB Rep. Sept. 582, paragraph 11). This does not, however, preclude the Board from considering the context surrounding the respondent's actions, as indicated by the Board in Fielding Lumber Company [1975] OLRB Rep. Sept. 665, at paragraph 19:
'The Ontario Labour Relations Board has no general mandate to impose its views of fairness on employers and employees. Its sole responsibility is to administer and enforce The Labour Relations Act — a piece of legislation that does not stipulate that an employee can be terminated from his employment only for just and reasonable cause. But having said this it must be observed that in assessing an employer's declared motivation due regard may be had to the peculiarities of the context surrounding an employer's actions. To the extent that peculiarities exist and cannot be reasonably explained an employer may fail, by a process of inferential reasoning, to satisfy the burden placed upon it.'
The nature of the determination to be made in cases such as the instant case and the factors to be considered by the Board in making such determinations are described as follows in Pop Shoppe (Toronto) Limited, [1976] OLRB Rep. June 299, at paragraph 5:
'In cases such as these the Board is very often required to render a determination based on inferential reasoning. An employer does not normally incriminate himself and yet the real reason or reasons for the employer's actions lie within his knowledge. The Board, therefore, in assessing the employer's explanation must look to all of the circumstances which surround the alleged unlawful acts including the existence of trade union activity and the employer's knowledge of it, unusual or atypical conduct by the employer following upon his knowledge of trade union activity, previous anti-union conduct and any other 'peculiarities'. (See National Automotic Vending Co. Ltd. 63 CLLC 16,278)...."'
Counsel attempted to persuade the Board to place some weight on the fact that in January of 1983 the grievor spoke with the Home's payroll clerk, who was also a Union steward, about her failure to receive overtime pay for working on Boxing Day. However, it is clear from the evidence that this incident played no role whatsoever in the respondent's decision to discharge the grievor. We are also satisfied that the fact that the grievor had joined the Union prior to her discharge, and told Mrs. Kalu that she was thinking about going to the Union for some advice about documentation, played no part in management's decision to terminate her. The respondent has enjoyed a collective bargaining relationship with the Union in respect of its approximately 2,000 full-time employees for a number of years. When George Coleman, the General Manager of the respondent's Homes for the Aged Division, became aware during the first week of March of 1983 that the complainant was attempting to organize the respondent's casual employees in that Division, he instructed the administrators and members of senior management in the seven homes in that Division, including Mr. Fishenden and Mrs. Kalu, to be co-operative and not to do anything that might hamper the Union's organizing efforts, since he felt that it was quite appropriate for casual employees to be represented by the Union. Mr. Fishenden and Mrs. Kalu not only accepted that view, but felt that it would be desirable from their point of view for the Home's casual employees to be represented by the Union since it would eliminate some of the tensions which had arisen from time to time between the unionized (full-time) employees, and the non-unionized (casual) employees. Neither Mr. Fishenden nor Mrs. Kalu knew that the grievor had joined the Union at the time they decided to discharge her. Nor were they in any way disturbed by the possibility that she might approach the Union for assistance in documenting her employment history since they both found that to be an appropriate action that she was fully entitled to take. Moreover, we accept without hesitation or reservation the candid and credible testimony of Mr. Fishenden that the grievor's discharge was not in any way motivated by a desire on his part to remove her from the employ of the Home before the Union obtained the right to grieve such discharges under a collective agreement 'just cause" clause. We further accept his testimony that he would have discharged the grievor for the "unprofessional, irresponsible, inconsiderate, and quite unacceptable" attitude which she displayed on April 3rd, and for which she had subsequently demonstrated no remorse whatsoever, regardless of whether or not she was covered by a "just cause" clause. Accordingly, we are satisfied that the reasons given by management are the only reasons for the discharge of the grievor, and are not tainted by any anti-union motive.
In International Wallcoverings, [1983] OLRB Rep. Aug. 1316, the Board indicated that it will be prepared in appropriate circumstances to adopt a "non-motive approach to section 64", such as in instances of "clear mistake" or "discipline clearly out of all proportion to the misconduct in issue", where a clear imbalance in favour of protected activity exists. However, the circumstances of the instant case do not fall within the parameters of section 64. There is no evidence from which it can be found or inferred that the respondent's discharge of the grievor, who was one of the approximately 900 casual employees employed by the respondent at its various homes for the aged, in any way interfered with the formation, selection or administration of the Union. Moreover, the grievor' s retaliatory cancellation of her shifts, compounded by her subsequent assertion that she would do the same thing if the circumstances ever arose again, constituted serious misconduct. It does not appear to us that, in the circumstances of this case, the discharge of a casual employee with less than a year's service, which was itself not entirely unblemished, constituted discipline clearly out of all proportion to the misconduct in issue.
For the foregoof Theatrical Stage Employees and Moving Picture Machine Operators of the United States and Canada, Local 461, act contrary to the Labour Relations Act in discharging the grievor.
Accordingly, the complaint is hereby dismissed.