Office and Professional Employees' International Union, Local 343 v. Ombudsman Ontario, 1994 CanLII 9801

Office and Professional Employees' International Union, Local 343 v. Ombudsman Ontario

[1994] OLRB Rep. December 1679

1191-94-U Office and Professional Employees' International Union, Local 343, Applicant v. Ombudsman Ontario, Responding Party

BEFORE: Roman Stoykewych, Vice-Chair, and Board Members W. H. Wightman and H. Peacock.

APPEARANCES: M. I. Rotman, Carol Dupuis, Lorraine Boucher and Dean Morra for the applicant; Walter Thornton, LaVerne Monette and Lee Anderson for the responding party.

DECISION OF THE BOARD; December 21, 1994

1. This is an application pursuant to the provisions of section 91 of the Labour Relations Act, in which the applicant trade union asserts that the responding party employer has violated section 81.2 of the Act. In particular, it is alleged that the employer's dismissal of Dean Morra on June 28, 1994 was without just cause.

2. The employer, the Ombudsman of Ontario, conducts its operations out of nine District Offices throughout Ontario as well as in its main office in Toronto. In a decision of the Board dated February 5,1993 [reported at [1993] OLRB Rep. Feb. 147], the applicant trade union was certified as the bargaining agent for the employees of the Ombudsman of Ontario. As of the time of the events giving rise to this application, the parties had not yet entered into a first collective agreement.

3. At the time of his discharge, Mr. Morra had been employed at the Ombudsman's Toronto offices for over five years. Until the events giving rise to this application, he had worked in a series of increasingly responsible word processing positions. The evidence is undisputed that he performed satisfactorily in those positions, and there was no suggestion that he had engaged in conduct attracting discipline during this time. In late November, 1993, Mr. Morra was promoted to an Administrative! Production Secretary position, which he had obtained by virtue of his successful candidacy in a competition. The position, although involving a considerable clerical component, was in substantial measure that of an "administrative assistant" to Ms. Linda Robinson, the Director of Communications at the Ombudsman's Office. On May 26, 1994, Mr. Morra received a written warning with respect to his work performance. On June 28, 1994, Mr. Morra was terminated from that position for reasons related to his performance.

4. It was the thrust of the employer's position that Mr. Morra had failed to perform adequately in this position and, in argument, claimed that his conduct in this respect was the proper subject matter of discipline, including discharge. To support this position, the employer referred us to a series of incidents involving Mr. Morra which, in its view, supported the conclusion that the discharge was for just cause. Before turning to the evidence, it is useful to review the statutory provisions under which the trade union seeks relief for Mr. Morra.

I

5. Section 81.2 of the Act, which came into effect as of January 1, 1993 as part of the recent package of legislative amendments, provides as follows:

81.2-(1) No employer, employers' organization or person acting on behalf of either shall discharge or discipline an employee without just cause if,

(a) a trade union is certified as the employee's bargaining agent or the employer has voluntarily recognized the trade union as the employee's bargaining agent; and

(b) no first collective agreement has been settled.

(1.1) If the Board determines that an employer has imposed a penalty on an employee for cause, the Board may substitute such lesser penalty as it considers just and reasonable in all the circumstances.

6. The Act now provides that in circumstances, such as the present ones, where a trade union has obtained bargaining rights by way of certification but has yet to conclude with the employer a first collective agreement, the employees for whom the trade union holds bargaining rights are accorded "just cause" protection with respect to discharge and disciplinary sanctions imposed by the employer. As a result, even in the absence of any allegation that the employer had otherwise violated the Act, the Board is now empowered to adjudicate upon such issues and, in the event that a violation of the provision is found, to fashion a remedy as is provided for in the remedial provisions of section 91 of the Act. The effect of the amendment, then, is to impose on the employer an enforceable standard for its discipline and discharge that had previously flowed from obligations pursuant to collective agreements. In this respect, it is notable that the statutory language imposing the just cause requirement in section 81.2 is substantially identical to that found in section 43.1(1), which deems every collective agreement to provide that "no employee shall be discharged or disciplined without just cause".

7. Because of the similarity of the statutory language and because the circumstances in which the Board will have to adjudicate upon the just cause question will in many cases closely resemble those of the arbitration of grievances pursuant to a collective agreement, the arbitration process is an obvious analogue to the Board's role contemplated under section 81.2. We are, in this respect, confident that it was the Legislature's intention for the Board to seek guidance from what has been referred to as the "common law of the shop" in the course of our determinations pursuant to this section, and that the caselaw developed in the context of the arbitration of discipline and discharge grievances will be of considerable assistance to the Board. (See, for example, The Brick, [1993] OLRB Rep. Nov. 1206, where the applicability of the doctrine of "culminating incident" was considered.) In particular, we are of the view that in duplicating the language deemed to be contained in collective agreements, the Legislature directed the Board's attention to the standards articulated in the arbitral caselaw regarding just cause, rather than to the common law standard of "cause". We note in this respect the comments of George Adams (now Mr. Justice Adams), sitting as a statutory arbitrator in Re Roberts and the Bank of Nova Scotia (1979), 1979 CanLII 4019 (CA LA), 1 L.A.C. (3d) 259, (Adams), in which this question was discussed in the context of the arbitration provisions for non-unionized employees under the Canada Labour Code:

I am of the view that when Parliament used the notion of "unjustness" in framings. 61.5, it had in mind the right that most organized employees have under collective agreements - the right to be dismissed only for "just cause". I am of this view because the common law standard is simply "cause" for dismissal whereas "unjust" denotes a much more qualitative approach to dismissal cases. Indeed, in the context of modern labour relations, the term has a well understood content

• a common law of the shop if you will: see Cox, "Reflections on Labour Arbitration", 72 Harv. L. Rev. (1958) at p. 1492.

8. We are in respectful agreement with the conclusion drawn in Re Roberts, supra, and find the considerations expressed in that decision to be germane to our inquiries under section 81.2. Indeed, given the Ontario provision's greater similarity to the language of collective agreements, and its function within the collective bargaining regime, we find the link to the arbitration process to be even more compelling.

9. Of course, the Board must be sensitive to the differences between circumstances where there is an established collective bargaining relationship anchored in the provisions of a collective agreement and those in which the only rights that the trade union may assert vis a vis the employer are statutory ones. The Board is conscious of the fact that arbitrable rights other than the just cause standard (in particular, ones relating to the grievance procedure) are factors considered by arbitrators in their awards and that, in the context of proceedings under section 81.2, there are no such contractual rights upon which the trade union may rely. Another potential difference lies in the differing scope of remedial authority: the Board has at its disposal a substantially broader range of remedial powers than does a board of arbitration constituted under a collective agreement and therefore, the steps the Board may take to rectify a breach of the just cause requirement may in certain circumstances differ from the remedial response of an arbitrator. Nevertheless, in our view, both the statutory and practical similarities far outweigh the differences, and, provided that those dissimilarities are kept in mind, we are persuaded that the decisions of arbitrators are a valuable resource to the Board in the course of its determinations pursuant to section 81.2.

10. The present case raises the question of the appropriateness of disciplinary responses to poor work performance by an employee. It was the general thrust of the trade union's position that discipline for such matters would be effecting punishment for matters that are outside of the control of the employee and hence, fundamentally unfair. We cannot agree. While it is true that at least some of the allegations of poor performance initially advanced by the employer in these proceedings could not be reasonably attributed to culpable action by Mr. Morra, that cannot be said of the allegations of misconduct upon which the employer expressly relied. With few exceptions, the allegations upon which the employer bases its case for discipline consist of incidents of carelessness, failure to follow instructions, and lack of effort. To be sure, careless performance of work rests on the frontier of what is generally considered culpable. At the same time, speaking more practically, it cannot be said that such matters are not amenable to corrective action by the employer, nor is it appropriate for the employer to be left without recourse in the face of demonstrated negligence. For these reasons, arbitrators have long recognized the appropriateness of a disciplinary response to poor work performance provided that the discipline is aimed at behaviour that can be corrected by the employee. (E.g., Re Steel Co. of Canada Ltd. (1971), 1971 CanLII 1945 (ON LA), 23 L.A.C. 221 (Rayner); see also The Brick, supra.) Indeed, in his submissions, counsel for the employer carefully distinguished between those matters that were attributable to the culpable action of Mr. Morra and sought to rely only upon such allegations. Accordingly, we see no reason why the employer should not be permitted to rely upon such incidents as the basis for discipline.

11. A further issue raised in the present application is the applicability of the arbitral doctrine of "progressive discipline" to the question of just cause under section 81.2. That doctrine, rooted in the recognition of the rehabilitative potential of the employment relationship and the corrective approach to industrial punishment, requires that an employer must establish that an employee's conduct will not be responsive to lesser penalties before resorting to discharge. In operational terms, by progressively increasing the severity of the discipline imposed for misconduct, it is expected that an employee will be given some inducement and incentive to reform the conduct complained of as well as providing a "record" upon which the employer may base the decision to discharge an employee (Brown and Beatty, Labour Arbitration in Canada (3d), Toronto: Canada Law Book, para. 7:4422).

12. The nature and applicability of the doctrine of progressive discipline to the adjudication of the just cause issue in a non-collective agreement environment were extensively reviewed in Re Roberts, supra pp. 265-67 and it is unnecessary to recapitulate them here. It is sufficient to note that we are in agreement that the concept is inextricably intertwined with the "just cause" standard. For that reason, this panel is persuaded that the doctrine of progressive discipline is applicable to the Board's determinations under section 81.2 and furthermore, sees no reason why the employer, in the present circumstances, should not be required to establish that penalties short of discharge would either not correct the behaviour complained of or would be otherwise inappropriate. Indeed, counsel for the employer did not strenuously argue against the general applicability of such a requirement but instead, submitted that the evidence established that it had been met.

II

13. At the hearing, the employer relied upon a previous warning to support the discharge penalty. That warning, delivered to Mr. Morra by Ms. Robinson on May 26, 1994, consisted of a catalogue of complaints with respect to his performance (only some of which were relied upon at the hearing) coupled with a warning that discharge would ensue by June 30, 1994 if Mr. Morra did not demonstrate significant improvement in his performance. Since the trade union and Mr. Morra assert that this "last chance" disciplinary sanction was also issued without just cause, it is useful to review the circumstances pertaining up to that time.

14. Although he was put into the Administrative/Production Secretary position in late November, 1993, it appears that Mr. Morra did not assume his full duties until some time in late January, 1994. In the meantime, he continued to perform various long-term projects that had previously been assigned to him in his word processing capacity. The formal training that he received during this early period of his tenure in the administrative secretary position was restricted to a course for upgrading his word processing skills, which he attended in January. Otherwise, his early training consisted of ad hoc meetings with Ms. Robinson who, it should be noted, had commenced her employment with the Ombudsman at almost the same time as Mr. Morra took on the Administrative/Production Secretary position.

15. Mr. Morra received his first written assessment on February 17, 1994. The review of his performance was generally positive, noting his service orientation in a favourable light. However, Ms. Robinson indicated her concerns with his apparent weakness in prioritizing assignments and, more specifically, his inability to turn down work that was directed to him. In the evaluation, Mr. Morra was encouraged to "say No' to some requests". Shortly after the evaluation, it was arranged that Mr. Morra and Ms. Robinson were to meet on a more formalized weekly basis to discuss the priorities of the Communications Department, and to deal with any work-related problems. It is also at this time that Ms. Robinson concluded that Mr. Morra constituted a potential performance problem and began to take note of what she perceived to be deficiencies in his performance.

16. The misconduct expressly relied upon by the employer included four incidents which occurred in mid-March, 1994. On March 11, 1994, Mr. Morra was asked by Ms. Robinson to photocopy a copy of the Ombudsman's "Draft Annual Report" in order that she might have it for a meeting with its publisher at one o'clock the next day. The request was clear and unequivocal, and there is no question that Mr. Morra received the request. However, it appears that Mr. Morra, while busy with his other work, neglected to turn his mind to the matter until Ms. Robinson reminded him to do so shortly before the meeting. As a result, the photocopied Report was provided to Ms. Robinson ten minutes late, while the meeting was already in progress. Similarly, on

March 17, Mr. Morra failed to provide Ms. Robinson with copies of certain videotapes from the resource library in a timely manner, despite being requested to do so in a clear and unequivocal manner.

17. In both these cases, it is clear that Mr. Morra failed adequately to take note of the requests, which contributed significantly to his forgetting to do them as required. It is to be noted, moreover, that Mr. Morra had been told on several occasions to make note of his assignments in a "day-timer" Ms. Robinson had provided him for precisely this purpose. It would appear that Mr. Morra ignored these directions, and instead, preferred to keep track of his assignments with a system of handwritten lists and computer notations that, quite manifestly, did not accomplish its intended purpose.

18. The employer also relied upon an incident on March 14, 1994, in which Mr. Morra is alleged to have misplaced an address directory entitled the "Blue Book". As part of his duties, Mr. Morra is required to keep various resource materials, including the "Blue Book", in a manner that is accessible to other staff, including Ms. Robinson. That these materials be organized in a such a way that staff can use the resources without Mr. Morra's assistance is particularly important given that Mr. Morra's schedule permits him to be absent from the workplace for one working day during the week. The evidence is clear that on March 14, 1994, which was Mr. Morra's day off, Ms. Robinson was unable to find the Blue Book after looking for it in its designated location. She received it only the next day, after Mr. Morra had conducted a search of the office.

19. Finally, the employer relied upon another incident of failing to record assignments which, although occurring in mid-March, came to light only on June 20, 1994. Mr. Morra is alleged to have failed to have taken adequate steps to ensure that a shipment of materials reach its destination. In mid-March, 1994, Mr. Morra was requested by Ms. Robinson to ensure that certain display materials were sent to the Ombudsman's London offices by June 16, several days before they were necessary. It appears that, once again Mr. Morra neglected to make the necessary notation in his day-timer or in any other tickling devices he had in operation at the time, and that as a result, the deadline came and passed without the necessary shipment being made. Furthermore, it appears that, despite being requested to do so, Mr. Morra did not ensure that the materials in question were properly assembled. As a result, when Ms. Robinson succeeded in having them shipped to London on an express basis, they were not in a condition to be of any use to the personnel in the London office.

20. The basic thrust of the trade union's defense to the incidents of careless work performance was two-fold. First, it was argued, the employer should not be permitted to rely upon the incidents in question as the basis for discipline because of what it characterized as undue delay in initiating the disciplinary process. The employer took no concrete disciplinary action for over two and a half months and for that reason, it was asserted, the union was prejudiced in the presentation of its defence to the allegations. We do not agree that the circumstances are such as to cause us to deny the employer to rely upon such incidents. While the elapse of time between the incidents complained of and the ensuing discipline is a cause for some concern, at the same time it is important to note that the conduct complained of is that of poor work performance, which in most cases is noticeable, and indeed, amenable to discipline, only when treated as a series of incidents. For that reason, arbitrators have found it appropriate that the employer discipline for such incidents collectively, as it were, with a resulting elapse of time between the incident and ensuing discipline. (See Re Air Canada (1981), 1981 CanLII 4504 (CA LA), 4 L.A.C. (3rd) 68 (Shime). Bearing this in mind, we do not find the span of time between the incidents and the discipline to be so unreasonable as to constitute undue delay. Furthermore, we are not of the view that the prejudice to the trade union was substantial, especially in light of the defence it raised: that Mr. Morra was operating under extremely trying conditions, at the time, namely, a move of his office. At its highest, this second prong of the trade union's defence to the allegations consists of a factor be considered in mitigation of the penalty. Indeed, although the trade union sought in various ways to minimize the extent of the wrongdoing, the fact remains that Mr. Morra neglected to perform his duties.

21. That is not to say that the period of time between the events in question and the discipline is a matter of indifference to the Board. Much was made by employer counsel of the somewhat sparse evidence provided by Mr. Morra with respect to precise circumstances obtaining in the office at the time~ and it was submitted that no causal connection had been established to tie the move to Mr. Morra's failure to abide by the instructions given him. Under the circumstances, notably, that Mr. Morra was first required to provide his version of events some two and a half months after the fact, this is not surprising. Accordingly, we decline to infer an attempt to deceive the Board from his failure to provide detailed evidence regarding the move's effect on his work performance. On balance, we are satisfied that the circumstances obtaining in the office in mid-March were indeed unusual due to the disruption caused by the move~ and although not excusing his failure to record his assignments, certainly contributes to an understanding of why he acted as he did.

22. While Ms. Robinson clearly experienced a deep sense of frustration from what she attributed to be Mr. Morra's shortcomings in organizational matters, for reasons that remain unclear she was reluctant to provide Mr. Morra with any training from external sources other than the aforementioned upgrading of his computer skills. Rather, Mr. Morra's training in the position consisted of his weekly meetings with Ms. Robinson, adverted to earlier, as well as occasional, unscheduled meetings in which his job was explained to him by Ms. Robinson. Indeed, Mr. Morra's initial request for external training in March was refused by her, and it was only after he repeated this request that she made the necessary arrangements to have him attend a course entitled "The Indispensable Assistant" in late April, 1994. No reasons were provided as to why such obviously relevant training was undertaken only five months after the commencement of Mr. Morra's employment in that position, especially when it was apparent to the employer that he had no experience outside of his word processing functions and that he was experiencing difficulties with the administrative elements of his new position.

23. Mr. Morra testified that he found the course to be very useful. However, the ensuing course of events provided him little opportunity to demonstrate what salutary effect it may have had with respect to the performance of his work. He returned from the course on April 28, 1994. On May 2, 1994, the employees at the Ombudsman's Office commenced a job action (whose precise legal characterization is a matter of considerable dispute in another proceeding) that continued until May 16, 1994. It is sufficient to relate that the bargaining unit employees, including Mr. Morra, refrained from attending work during this time and that the Ombudsman's offices, although they remained open and were operated by other personnel, including Ms. Robinson, did not function in the normal manner. It is also the agreed upon position of the parties that Mr. Morra's participation in the work stoppage had no bearing upon the employer's decision to subsequently discipline or discharge him.

24. It was immediately upon his return from the job action that, Ms. Robinson testified, Mr. Morra committed another clerical error that occasioned her to review his entire employment record. The Board notes that, quite fairly, counsel for the employer did not seek to rely upon this incident in his argument to sustain the discipline. Nevertheless, the incident, which occurred on May 19, 1994, appears to have been of sufficient significance in the decision-maker's mind to initiate disciplinary proceedings that raised the spectre of discharge. The "incident" amounts to Mr. Morra failing to align the columns in the in-house newsletter in a manner preferred by Ms. Robinson. According to Ms. Robinson, who was the newsletter's editor, Mr. Morra had been instructed

to level the columns, something he failed to do on May 19. However, the evidence is clear that on a number of occasions, both before and after that day, the Newsletter, as typed by Mr. Morra and approved by Ms. Robinson, issued without complaint in precisely the format presented by Mr. Morra that day. Accordingly, the standard of performance or conduct that the employer alleges that Mr. Morra has not attained is far from clear. Moreover, it was not disputed that the re-formatting of the columns in the manner preferred by Ms. Robinson was an editorial task that would take only seconds to correct. Indeed, Ms. Robinson conceded that the problem itself was of a "very minor" nature, a characterization that the Board finds to be still something of an understatement. While we do not doubt that Ms. Robinson was very upset at having to perform the minor editorial detail, under all the circumstances we are also satisfied that Mr. Morra did not engage in conduct worthy of discipline.

25. Before turning to an assessment of the discipline, it is useful to review another incident that, although relied upon by Ms. Robinson both in her decision to discipline Mr. Morra and at the hearing, was not put forth as grounds for discipline during argument. On March 22, Mr. Morra was instructed by Ms. Allison Irons, an employee in another department of the Ombudsman's office to process a series of letters to certain provincial and federal politicians. According to Ms. Robinson, notwithstanding the clear instructions that he had received, Mr. Morra seriously misconstrued the scope of the assignment, turning a job that she estimated should take only two hours into an all-day affair. However, the evidence with respect to the directions Mr. Morra received is far from clear, and it is at least as likely that the delay in performing the task was the result of ambiguous instructions or intervening technical problems as through Mr. Morra's poor performance.

26. An aspect of the "letter merging incident" stressed by Ms. Robinson was what she attempted to characterize as Mr. Morra's poor attitude in refusing to perform the tasks requested of him by Ms. Irons. The evidence is not significantly in dispute. It appears that Mr. Morra was initially approached by Ms. Irons to perform the letter merging task. Mr. Morra, upon being so requested, approached Ms. Robinson and advised her of his view that it was "not my job". Ms. Robinson promptly disabused Mr. Morra of that view, and directed him to perform the work. Mr. Morra complied immediately, and thereafter, never questioned the propriety of a work assignment. In our view this incident cannot be construed as indicative of an insubordinate attitude, as suggested by the employer and more particularly, as maintained by Ms. Robinson. As was noted above, Mr. Morra had been counselled to assert control over his workload. It appears to the Board that this counselling was meant to apply to precisely the type of situation with which Mr. Morra was faced, and that in letting Ms. Robinson know that it was his opinion that it was not his job, he was doing precisely what he was told to do. In cross-examination, Ms. Robinson noted only that "he picked the wrong time to say No"', without elaborating when, precisely, a more appropriate time might be. Indeed, it appeared to be Ms. Robinson's view that Mr. Morra's failure to perform the letter merging function in accordance with her expectations was an intentional act in defiance of her authority. No evidence was led to support this view and indeed, as indicated above, the evidence is to the contrary.

27. Accordingly, we find Ms. Robinson's contention that Mr. Morra misconducted himself either by expressing his view that he should not perform the work, or, as suggested further, by defying her authority, to be entirely unfounded. Especially given the counselling he received regarding control over his workload, in our view it would be most unfair to discipline an employee in these circumstances.

28. Considerable evidence was led with respect to the two meetings that Ms. Robinson held with Mr. Morra on May 25 and June 2, 1994 the latter in the presence of a union representative. In general terms, the Board found the vast majority of this evidence to be entirely unhelpful in determining whether the discipline was for just cause, and we do not propose to review it in detail. It is sufficient to note that during the meetings of May 25, 1994, on the basis of the list she had compiled, Ms. Robinson reviewed with Mr. Morra the areas in which she found his performance to be lacking, including the incidents heretofore discussed in this decision, and notified him that, were his performance not to improve by June 30, 1994, he would be terminated. This information and warning was substantially reiterated in correspondence directed to him on May 26, 1994. Mr. Morra, for his part, was completely taken aback by this turn of events, and in an emotional outburst at the May 25 meeting, claimed that Ms. Robinson "was hired to fire [him]". It appears that Mr. Morra, overcome with emotion, was genuinely unable to continue in the meeting, and asked that another meeting be convened. Ms. Robinson agreed, and a meeting was held on June 2, in which Ms. Robinson essentially reiterated her concerns with respect to Mr. Morra's performance. Bearing in mind these circumstances, we find no basis in the employer's submission that Mr. Morra, in asking for a second meeting, was acting in an obstructionist manner that is in itself worthy of discipline. Similarly, we cannot agree with the trade union's submission that the meetings, and in particular, the manner in which they were conducted by Ms. Robinson, were initiated in bad faith. Indeed, the Board's concern with these meetings is not so much that they were conducted, but rather, that they were conducted at such a late time. While the resulting correspondence directed to Mr. Morra may not have been a model for the drafting of disciplinary notations, in that culpable and non-culpable matters were indiscriminately mixed and the description of the incidents themselves were lacking in detail, we are satisfied that the employer, albeit belatedly, succeeded in relating to Mr. Morra its concerns with respect to his performance.

29. Was the disciplinary sanction, which included a warning that summary termination would ensue in the absence of "substantial improvement", warranted in these circumstances? To summarize to this point, the evidence establishes that on four occasions in mid-March, Mr. Morra acted carelessly or with insufficient attention to his work. On one of these occasions, namely the missed shipment of materials to London, his careless performance caused considerable disruption to the employer's operations, while the effects upon the employer in the remaining instances was not substantial and did not exceed the level of inconvenience. On three of these occasions, his failure to perform his work were rooted in his consistent failure to make the necessary notations of the assignments despite being repeatedly told to do so. Under these circumstances, we are satisfied that the employer had cause for discipline on May 26, 1994.

30. The further question we must determine is whether the "last chance" ultimatum was an appropriate disciplinary response. Having regard to the circumstances outlined above, we are persuaded that the level of disciplinary sanction, i.e., a written warning that threatens discharge in the absence of immediate improvement in performance, is an entirely inappropriate penalty. Simply put, the circumstances to which the employer is responding are not of the sort warranting a "last chance" solution raising the spectre of summary dismissal. In this respect, we cannot accept the proposition advanced by the employer that Mr. Morra's misconduct was of the sort that would permit the employer to "accelerate" the process of progressive discipline. The misconduct complained of, although injurious of the employer's legitimate interest in ensuring that work is performed efficiently and to the best of the ability of its employees, cannot be considered so serious an employment offense as to constitute major misconduct. Particularly when Mr. Morra's entirely discipline-free record of some five and a half years is taken into account, we see no reason to escalate the process of progressive discipline in the manner chosen by the employer. Moreover, it is important to note that in considering the appropriateness of the "last chance" ultimatum, Ms. Robinson relied upon allegations of misconduct that, we have found, were groundless. Finally, the circumstances of the misconduct established by the employer are not free of mitigating circumstances, most notable of which are that all of the conduct complained of occurred within a two-week period of a lengthy tenure of employment, a consideration that lends credence to union's assertion that unusual circumstances pertained during this time. Having regard to the foregoing, then, we exercise our discretion pursuant to our powers under section 81.2 (1.1) and find that the appropriate penalty for the misconduct to be a written warning with a notice that further discipline of increasing severity would ensue in the event of a recurrence of such conduct.

III

31. In the employer's view, Mr. Morra did not demonstrate the requisite improvement after receiving the written warning of May 26 and, on June 28, 1994, he was terminated from employment with the Ombudsman. According to Ms. Robinson, it became apparent to her almost immediately that Mr. Morra was unlikely to improve his performance sufficiently to avoid termination. It seems clear that, by this time, the employer had run out of patience with Mr. Morra. Indeed, the evidence is undisputed that notwithstanding the June 30 deadline given him to improve his performance, the decision to terminate him was made by June 15 at the latest. To support its decision the employer relied upon three incidents, two involving Mr. Morra's failure to keep track of Special Reports in the office library. Upon reviewing this evidence, we are not satisfied that these allegations have been made out.

32. With respect to the Special Report incidents, the evidence is that, as part of Mr. Morra's job, he was required to keep multiple copies of these Reports in the Resource Centre for purposes of immediate distribution. The Resource Centre appears to have served both a distribution and a reference function, and it was expected that Mr. Morra would periodically go into the Resource Centre to check that there were sufficient copies of all the necessary materials. On June 3 and again on June 10, 1994, Mr. Morra was requested by Ms. Robinson to produce copies of the Special Reports. On both occasions, he was unable to do so immediately because there were no copies of these materials readily available and was required to approach other offices to retrieve the requested materials and to restock the shelves.

33. According to Ms. Robinson, since Mr. Morra was "responsible" for ensuring that the Resource Centre was adequately stocked, he was to blame when it was not. It is notable that she made no effort whatsoever to determine what efforts Mr. Morra had taken to ensure that the Resource Centre was adequately stocked. Indeed, by this point, she appeared to have no interest in hearing from him, to the extent of cancelling their weekly meetings as "pointless". Similarly, no effort appears to have been made by anyone acting on behalf of the employer to determine whether the shortage was caused by other personnel taking the "last copy" out of the Resource Centre, a possibility that raises itself rather starkly once it is known that the shelves were, in fact, restocked only a week earlier. Finally, there appears to have been no consideration that the situation may have resulted from the Resource Centre simultaneously serving both reference and distribution functions and that the problem was of a systems nature outside of Mr. Morra's control. Having regard to this evidence, it is clear that the employer acted on the basis of assumption, rather than fact, in determining that Mr. Morra was responsible for the situation, and the evidence advanced at the hearing does not make us conclude that this assumption was warranted. We note in particular that the employer has failed to take even the most rudimentary steps to investigate the incident, the first step, one would have thought, would be to seek some input from Mr. Morra. Accordingly, we find discipline in these circumstances to be unwarranted.

34. The employer also relies upon an incident that occurred on June 15, 1994, in which Mr. Morra allegedly failed to appropriately co-ordinate an envelope stuffing assignment for which he was responsible. According to Ms. Robinson, Mr. Morra permitted an employee named Zelina to attend a training course instead of requiring her to perform the envelope stuffing function. There appears to be no question that Zelina's absence that day caused considerable delay in the process and required the reassignment of personnel to accomplish it. According to Ms. Robinson, Mr. Morra's fault lay in exercising extremely poor judgement in permitting Zelina to attend her course. However, Zelina, who is an employee of considerably higher rank than Mr. Morra, was not called as a witness in these proceedings, and counsel for the employer conceded that the evidence of the alleged misconduct was, at its highest, of an entirely hearsay nature. Furthermore, as Ms. Robinson had by that point decided that further communication with Mr. Morra would be to no avail, neither she nor anyone on behalf of the employer spoke to him with respect to this incident. Mr. Morra, for his part, testified that Zelina simply told him that she was not available that day, and that the question of him permitting her to go to her course simply did not arise.

35. The precise nature of the conversation between Zelina and Mr. Morra on June 15 is of fundamental importance in establishing the employer's case with respect to this incident. In the present circumstances, we are not inclined to give the hearsay account offered by the employer substantial weight, particularly since no explanation was provided for the employer's failure to call Zelina as a witness. Furthermore, while the Board has some concerns with respect to Mr. Morra's ability to withstand the tug of self-interest in fashioning his answers in evidence, we nevertheless cannot accede to the employer's submission that his evidence should be given no weight for that reason. We note in particular that the thrust of Mr. Morra's defence in this regard was not significantly challenged in cross-examination, and no attempt was made to respond to the union's claim that it was unlikely that Mr. Morra would be in a position of giving permission to a much more senior employee. Having regard to all of the circumstances, then, we are not satisfied that the employer has established its case that Mr. Morra acted in a manner that should attract discipline with respect to the Zelina incident.

IV

36. To summarize, we have found that on four occasions in mid-March, 1994, Mr. Morra performed his work in a manner that can be fairly characterized as careless and that some discipline is warranted for that misconduct. However, we have found that the discipline accorded to him, which included a "last chance" threat of discharge in the event that his performance did not improve immediately, to be an inappropriate disciplinary response. Instead, the appropriate disciplinary response in the circumstances would be a written warning advising him that further disciplinary responses would ensue in the event of reoccurrence of such conduct. Finally, we have found that the allegations of misconduct subsequent to the May 26 warning not to have been made out by the employer. Under these circumstances, we have no hesitation in concluding that the discharge of June 28, 1994 was entirely without foundation and therefore cannot stand.

37. Furthermore, we see nothing in the evidence that would make us conclude that reinstatement to an identical or substantially similar position with the responding party employer would be an inappropriate remedial response. In particular, there is nothing to suggest that Mr. Morra has conducted himself in a such a manner so as to make us conclude that the employment relationship is irretrievably sundered, nor is there any basis for us to believe that any attempts at reinstatement are doomed. In our view, the arbitral presumption that reinstatement is the appropriate remedial response to a discharge without just cause is particularly apt in circumstances contemplated by section 81.2, where the trade union has only recently been certified, and should not be easily displaced. In that regard, we cannot accept that Mr. Morra's single outburst at the meeting of May 25, 1994, (which, albeit belatedly, he acknowledged to be inappropriate) is of sufficient gravemen to displace that presumption.

38. Finally, while we have found that in substantial part the discipline levied against Mr. Morra is unwarranted, at the the same time we do not wish this decision to be interpreted by the

parties, and particularly by Mr. Morra, to be a general endorsement of his work performance in the Administrative/Production Secretary position. The evidence is clear that on a number of occasions, Mr. Morra failed to take the necessary steps to ensure that his work was done properly, and at least on one occasion, caused considerable disruption to his employer's operations by failing to ensure that a shipment of materials was sent at the appropriate time. We have already made it clear that further discipline may ensue as a result of a recurrence of such conduct. However, it should also be noted that, in addition to disciplining for poor work performance of a culpable nature, the employer is empowered to remove an employee from a position he or she holds, or, in certain circumstances, to dismiss an employee, when it is demonstrated that the employee is unable to fulfill normal employment responsibilities. While the employer did not in this case seek to rely upon such grounds (and, given the circumstances of Mr. Morra's tenure in the position, it is unlikely to have succeeded), we should not be taken as expressing a view that Mr. Morra's employment is free from such concerns. A number of the administrative job functions of the Administrative/Production Secretary position are new to Mr. Morra, and although the circumstances of his employment between November 1993 and his discharge in June 1994 would not provide a fair assessment of his ability in this respect, it remains to be seen whether he will, in fact, become reasonably proficient in the performance of these tasks. Mr. Morra, of course, has had a substantial period of unwarranted separation from the workplace to reflect upon his apparent shortcomings in this respect and, upon his return to work, it will be incumbent upon him to ensure that his work is performed to the best of his ability.

39. Accordingly, having regard to the foregoing, we find that the employer has violated section 81.2 of the Act by disciplining and discharging Mr. Morra without just cause. We direct the employer to reinstate Mr. Morra forthwith, without loss of seniority, to an identical or substantially similar position held by him immediately prior to his discharge. Further, we direct the employer to reimburse Mr. Morra for all resulting lost wages and benefits, including interest calculated on the basis of the formula set out in Hallowell House, [1980] OLRB Rep. Jan. 35. Finally, we direct the employer to remove all disciplinary notations subsequent to the February 14, 1994 evaluation, including any reference to the discharge, from Mr. Morra's employment record and to replace it with a warning letter as set out in paragraph 30 of this decision.

40. We remain seized with respect to any remedial matters that may arise from the implementation of this decision.

41. Finally, the parties had agreed to hold in abeyance the remaining aspects of the present section 91 application pending the resolution of the matter of Mr. Morra's discharge. It is hoped that the parties will be able to resolve these matters without the requirement of what promises to be further extensive litigation. With this in mind, before the Board will schedule further hearing dates, the parties are directed to contact the Labour Relations Officer forthwith to arrange a meeting in which further settlement discussions may take place. In the event that such efforts prove fruitless, either party may ask to have the matter brought on for hearing by contacting the Registrar on or after January 10, 1995.

42. The matter is referred to the Registrar.