[1991] OLRB Rep. July 872
3281-90-G Carpenters and Allied Workers Local 27 United Brotherhood of Carpenters and Joiners of America, Applicant v. Ideal Railings Limited, Respondent
BEFORE: Brain Herlich, Vice-Chair, and Board Members W. A. Correll and P. V. Grasso.
APPEARANCES: N. L. Jesin, Ron Balkissoon and Shainshir Gill for the applicant; Nancy A. Eber and James D. Church for the respondent.
DECISION OF BRAM HERLICH, VICE-CHAIR AND BOARD MEMBER P. V. GRASSO; July 26, 1991
This is a referral of a grievance concerning the interpretation, application, administration or alleged violation of a construction industry collective agreement pursuant to section 124 of the Labour Relations Act. The applicant (also referred to as the "union") claims that Shamshir Singh Gill (also referred to as the "grievor") was discharged from his employment with the respondent (also referred to as the "employer" or the "company") without just and sufficient cause.
Ideal Railings Limited is a manufacturer of wood and metal railings which it also installs, largely in residential construction projects. At the time of his discharge the grievor was working as an inside installer of wood railings. During the period in question business appears to have been quite slow to the extent that employees such as the grievor were working only periodically on an as needed basis. Consequently, employees were not regularly reporting for work but rather were contacting or being contacted by the employer to determine whether or to be informed that work was available on any particular day.
On February 18, 1991 the grievor contacted Joyce Dixon, the employer's office manager, to determine whether there was work available for him the following day. She advised the grievor that she was unsure whether work would be available and that she would call him back. By about 6 p.m. the grievor had not heard from Ms. Dixon so he called her back and was told to report for work the following day. Later that night the grievor telephoned the president and owner of the company, James Church, at his home and was again advised to report for work the following morning.
The grievor did not report for work the following day. He testified that he felt a little sick that day. He could not really explain his failure to notify the company of his absence and did acknowledge that it was preferable for an employee scheduled to work to notify the employer of an absence, but claimed that such notification would be of little value unless received before 8 a.m., the time that installers normally leave the workplace for the particular job site.
Two days later the grievor was telephoned by Gurmit Singh Gill, a fellow employee, who, with the grievor's permission, had gone to the workplace to collect their paycheques. The grievor was told that although neither he nor Mr. Gill had been called in to work, there were employees junior to both of them who had. The grievor called the union and as a result of that conversation went to the workplace to see who was actually at work. In the parking lot of a gas station across the street the grievor encountered Mr. Church and a conversation ensued and continued in the employer's parking lot. At some point(s) Mr. Gill and another employee may have joined the conversation. Although the evidence offered by both parties in respect of this conversation was vague and hazy at best, we are satisfied that the grievor voiced his displeasure at having discovered that junior employees were working. (The parties agreed that, subsequent to this discussion, grievances were filed on behalf of the grievor and another employee. The grievances involved questions of seniority and who was working on February 21, 1991. They were ultimately resolved.) On the other hand, while we are satisfied that Mr. Church asked the grievor where he had been for the last couple of days (he had not been called in to work subsequent to the day he did not report), we are not satisfied that the grievor indicated any causal connection between drinking and his failure to report for work the previous Tuesday.
By letter dated the following day, February 22, 1991, signed by Mr. Church, the grievor was discharged as follows:
Due to your poor work record, your employment with Ideal Railings Ltd. is terminated, effective immediately.
The employer argues that (despite any explicit reference to it in the letter of discharge) the grievor's failure to report for work and his failure to so notify the company on February 19, 1991 constitutes the culminating incident and that, in view of his disciplinary record, discharge is warranted.
In a preliminary oral ruling (reasons subsequently provided in a decision dated April 29, 1991) the Board (differently constituted) dismissed the union's motion based on the claim that the employer's letter of termination did not refer to the culminating incident and absent such reference any attempt to rely upon the culminating incident therefore constituted an improper alteration of grounds. The Board ruled that the letter of termination may reasonably be read to include the alleged culminating incident and that, in the circumstances, it cannot reasonably be said that the company is seeking to "alter the grounds" for the termination.
In light of the evidence we heard, the union renewed this line of argument and asked that we reconsider the ruling of the previous panel. The union relied primarily on Mr. Church's evidence that he had contemplated including an explicit reference to the culminating incident in the termination letter but decided not to do so on the basis of advice provided him by some unidentified source (not his current counsel). Notwithstanding that evidence Mr. Church also testified that he relied, inter alia, on the culminating incident in deciding to discharge the grievor. Even assuming (and we are far from convinced) that this is an appropriate case for the Board to reconsider its decision, we are simply unpersuaded that the evidence relied upon by the union should lead us to any conclusion diverging from that of the previous panel. We are satisfied that the employer relied upon the culminating incident and that the letter of discharge can be taken to refer to that incident.
This brings us to a consideration of the culminating incident itself and more specifically whether it was worthy of discipline. There is no dispute that the grievor failed to report for work and failed to notify the employer of his absence on February 19, 1991, a day he had been advised to report for work.
The union did not dispute that, as a general matter, an employee failing to report for work and failing to notify the employer of his absence would be subject to discipline (see for example TRW Vehicle Safety Systems Division (1990), 1990 CanLII 12938 (ON LA), 13 L.A.C. (4th) 381 at page 390). Notwithstanding that, it argues that discipline is unwarranted in the present case since whatever policy the employer may have in regard to absences and notification was inconsistently applied, if at all, to the grievor and to other employees.
Joyce Dixon testified that the employer has no formal procedure regarding absences and acknowledged that there were instances in which a failure to report and notify did not result in discipline. Although Edward Cole, the employer's former operations manager, testified that employees not reporting for work were requested to call in, he too acknowledged that there were instances where neither the grievor nor other employees were disciplined following failures to report and notify the employer of their absence. Those instances were confirmed, at least in relation to the grievor, by Mr. Church. And while there was no dispute that the grievor and other employees had previously been absent without prior notification to the company, we were certainly not presented with any evidence, apart from the culminating incident in this matter, of disciplinary action in such cases either against the grievor or any other employee. Apart from the viva voce evidence of the company witnesses, which was not consistent on the point, we were not provided with evidence of any clear company policy or rule having been communicated to employees.
However, while the evidence just recounted suggests there is much merit in the union s position, we should add that both the grievor and Mr. Gill, who testified on behalf of the union, seemed to acknowledge that their understanding was that an employee who was going to be absent should call in to notify the employer. They both appeared to agree, however, that such a call would be futile if it came after the installers left the workplace for the job site (around 7:30 a.m.).
In addition the company relied on a document dated December 21, 1988. Although not asserted to be part of the grievor's disciplinary record, the employer says this document demonstrates the grievor was aware of the company policy regarding absenteeism and notification of absences. In this document the grievor was placed on a "60-day probationary period" in respect of his attendance; it goes on to provide:
No absenteeism will be accepted except in the following cases:
Court Appearance - Must show proof of date and time of appearance request.
Immigration Appearance - Must show proof of request to appear at Immigration, showing date and time.
Sickness - Must have note from Doctor to cover time off.
The first two items above must be presented before the date of appearance.
While this document does not explicitly refer to any requirement of advance notification for absences in circumstances like the culminating incident, we are satisfied based on it and on other evidence before the Board that the grievor had been made aware that his attendance, and least in some generalized fashion, was a concern for the employer. Consequently, considering all of the evidence just reviewed we are persuaded that, even absent any consideration of the grievor's disciplinary record, some discipline, however marginal, was warranted in relation to his most recent absence and failure to notify.
This brings us to the final issue in this matter. Considering the grievor's disciplinary record, was discharge an appropriate penalty or would it be just and reasonable in all the circumstances to substitute some other penalty for the discharge? The grievor's disciplinary record, as relied upon by the employer, is as follows:
December 6, 1988:
written warning
re attendance and lates
June 7, 1989:
written warning
re lates
April 9, 1990:
5 day suspension
assaulting supervisor
May 22, 1990:
written warning
re attendance
August 7, 1990:
3 day suspension
driving company vehicle while license suspended
August 1990:
oral warning
re work performance
February 1991:
oral warning
re work performance
- There was some dispute regarding the accuracy of this disciplinary record. The grievor for example, did not recall receiving the May 22, 1990 written warning. Neither, however, did he deny it and the union did not seriously challenge its inclusion in his disciplinary record. The same cannot be said of the two more recent oral warnings. The "record" in respect of these two instances consists of written notations on the grievor's file as follows. In respect of the August 1990 incident there is a typed document which reads:
Aug/90
Al Grundy from Derbymont called in to report that one of our employees - S.S. Gill, for no apparent reason had become abusive and rude while working on his site.
He requested that we not send him back to the site again, as he would not be allowed access.
When I questioned Mr. Grundy, he was so upset that his voice was shaking. He appeared to be physically afraid of S.S. Gill.
He stated that the employee in question had verbally abused him and threatened him. Singh was warned.
"J. Dixon"
There was no evidence that a copy of this document had been provided to the grievor or the union prior to the commencement of these proceedings. Furthermore while the document indicates a warning was issued, this was allegedly done by Mr. Church and not by Ms. Dixon. Mr. Church's evidence was that he spoke to the grievor regarding the incident in question but that he could not recall what had transpired during that conversation. The grievor, while he recalled the event in question, had a different view of the events and gave no indication of having understood that discipline was being imposed on him at the time.
The February, 1991 incident which the employer claims resulted in a warning is recorded in a handwritten document on the grievor's file as follows:
Feb/91
Albert from Eden Oaks called complaining about the quality of workmanship of Singh & Gurmit. They were doing a very poor job of installing the nossing [sic] on lots 82 & 87. He said he didn't want them working on his site anymore. He said Singh was mouthy.
"Jim"
Again there was no evidence that a copy of this document was provided to the grievor or the union at the time. Mr. Church testified that he discussed the matter with the grievor and told him to "take it easy". The grievor denied receiving any disciplinary warning and Mr. Church acknowledged that discipline was not discussed at the time.
These two alleged warnings highlight some of the difficulties employers may face in insuring that oral warnings become part of an employee's disciplinary record. For while the events in question may well have warranted the imposition of warnings, we are simply not satisfied that any discipline was actually imposed. Furthermore, even assuming that the warnings were imposed, the failure to clearly communicate that fact to the grievor at the time and consequently give him the opportunity to challenge that discipline under the collective agreement precludes the company from now relying on those incidents as part of the disciplinary record. While it may appear somewhat incongruous at first blush, there is nothing inappropriate with keeping a (more than clandestine) written record of oral warnings and providing a copy of same to an employee, particularly where there is any contemplation of relying on such discipline in the future. Consequently, we are not prepared to accept the August, 1990 and February, 1991 oral warnings as forming part of the grievor's disciplinary record.
Even without the inclusion of these two warnings, however, the grievor's record is far from exemplary. It contains two suspensions in relation to serious disciplinary offenses, albeit unrelated to the culminating incident. In addition, it is clear that attendance related difficulties date back to December of 1988. Notwithstanding this, we are not satisfied that prior to the culminating incident the grievor was an employee perched precariously on the edge of discharge even for the most minor infraction. We say this for a number of reasons. First, while there is obviously a history of attendance related difficulties, there is also an indication of improvement. For example, Mr. Church acknowledged that although it had been a difficulty in the past, the present incident was the first of an absence and failure to notify warranting discipline since late 1988 or early 1989. Similarly, the employer's own disciplinary response to the grievor in purporting to impose oral warnings demonstrates that it was not of the view that the grievor was on the verge of discharge.
In all of the circumstances and considering as well the grievor's significant service with the employer, we are of the view that a suspension of 10 working days is just and reasonable and we hereby substitute such a penalty for the discharge imposed by the employer. We should note that while we have concluded that the grievor was not previously perched on the edge of termination, he may well be in that position now and we are confident that he shall govern himself accordingly. The grievor is to be forthwith reinstated to the position he occupied prior to his discharge with no loss of seniority and with full compensation subject to the suspension imposed. The Board will remain seized in the event the parties are unable to agree as to compensation or any other issue arising out of the present award.
DECISION OF BOARD MEMBER W. A. CORRELL; July 26, 1991
I cannot agree with the majority award to re-instate the grievor with a ten day suspension.
The employment record of S. Gill includes written warnings, a three day suspension and a five day suspension. The disciplinary actions taken are for a history of belligerence, poor attendance and failure to notify the company of intended absences.
Employees claim specific rights in terms of warnings of impending discharge so that they are not surprised by that final act. These claims are for a clear culminating incident and progressive discipline as a corrective action to aid rehabilitation.
Employees also have to accept responsibilities and these include consistent attendance at the work place and on time. It also includes some respect for authority and recognition of the right of a customer for quality work delivered in a timely manner.
The employer's work place is not a sophisticated organization where employees work in one place under close supervision with rigidly applied rules. In this case the company does not have a lot of options and it must rely on employees to help service a highly competitive market. Service to other contractors must fit into the tight schedules of other sub-contractors in the residential construction industry.
An employee who has a record which includes 36 lates in six months, failure to report to work as scheduled, failure to notify of intended absence, a physical attack on a supervisor, an abusive and threatening approach to customers, cannot be classed as a desirable employee. Suspensions have not rehabilitated Mr. Gill and he should have clearly understood from his talks with the Company's owner that he had stretched his credibility to the final limit.
I am not convinced that the grievor's attitude to his job will change and I would have upheld the discharge.