Award Number 03-004

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Award Date:	2003-04-16
Arbitrator:	Marcotte, W View awards by Marcotte, W
Municipality:	Hamilton View awards from Hamilton
Region:	South West View awards from South West
Classifications:	Disciplinary Penalties, Discipline, Disciplinary Penalties
Grievor:	D. Crozier
Appearances:	B. Boyce and others, for the Association B. Duxbury and others, for the Employer
Length of Award:	32 pp
Collective Agreements Cit.	Art. 1, 2, 14 & 15
Statutory Cit.

Summary

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Disciplinary Penalties   - Culminating incident - Improper performance of call-taker duties - Grievor’s conduct in failing to follow procedures culpable - Review of disciplinary record indicating discharge appropriate notwithstanding lengthy service - Grievance dismissed.

Discipline   - Work performance - Civilian communications operator discharged for culminating incidents of culpable work performance - Failure to follow procedures in relation to call-taker duties - Grievor failed to correct poor performance despite application of progressive discipline - Mitigating factors considered - Discharge upheld - Grievance dismissed.

Disciplinary Penalties   - Progressive discipline - Failure to follow procedures in relation to call-taker duties - Misconduct serious especially in light of potential consequences of errors - Cyclical pattern of poor work performance not supporting assertion that grievor could be rehabilitated by way of transfer or demotion - Grievance dismissed.

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Facts

The grievor was a civilian communications operator, who had some 22 years of service with the force. She alleged that she was discharged without just cause in September 2002. The grounds for discharge were poor work performance, for which the grievor had received fairly extensive discipline over the previous three years. In particular, the grievor made mistakes in relation to her duties as call-taker, such as failing to obtain critical information from the caller. The Employer relied on two culminating incidents of failure to follow call-taking procedures, which occurred in June of 2002. One of these incidents involved multiple calls; the third call-taker in that incident was not disciplined.The grievor testified that she had no trouble performing her duties during her first ten years as a communications operator. But certain technological changes, in particular the advent of computerized aids for recording and prioritizing calls, caused her apparent difficulties in terms of “multi-tasking”, and she was frequently unable to keep up.

However, other evidence at the hearing suggested that the technological changes in handling calls were positive, helpful, and in fact, for the most part such changes removed the need for operator discretion.

The Association led evidence of another civilian employee with lengthy service, employed in the graphics department, who had been transferred to a different position after he was found unsuitable for the communications operator classification.

Argument

The Employer argued that discharge was warranted on the basis of persistent poor work performance. With the diminution in operator discretion, it was clear that the grievor was making culpable mistakes in failing to solicit and record vital information. The Employer characterized the grievor’s misconduct as “cyclical”, meaning that she would correct her poor performance for awhile following discipline, then revert to previous work habits. The Employer submitted that, since the grievor’s difficulties were “attitudinal” in nature and evinced an element of insubordination, a transfer or demotion were not viable options: there were no positions in police work that didn’t require attention to detail, a requirement that the grievor couldn’t or wouldn’t satisfy.

The Association argued that the grievor’s work performance problems were non-culpable; she was simply overwhelmed by the busy-ness of the job. The Association contended that there were other positions to which the grievor could be transferred or demoted, which didn’t involve the same degree of risk (i.e. consequences of error). The Association suggested an element of discrimination in the Employer’s refusal to consider such options, (in light of the graphics employee precedent), and in singling out the grievor for discipline.

Award #

Following the Wm. Scott & Co. analysis, the Arbitrator considered whether there was cause for discipline, whether discharge was excessive, and if so, whether some alternative penalty should be substituted.

The culminating incidents in June 2002 involved a failure to follow the basic duties of a call-taker. The grievor had the necessary training and experience, and there was no evidence of an unusual number of 911 calls on the two dates in question. Thus, the circumstances did not involve some kind of non-culpable incapacity. The Employer had cause to discipline the grievor.

Having found a culminating incident or incidents, the Arbitrator went on to consider whether discharge was appropriate in light of the grievor’s disciplinary record. The grievor had received increasingly more severe sanctions, particularly during the last three years, but progressive discipline appeared to be ineffective, in terms of bringing about a permanent change in work performance. Her mistakes and failure to follow procedures were serious misconduct, in light of the Employer’s obligations to the community. With respect to rehabilitative potential, the Arbitrator concurred with the Employer’s view that the cyclical nature of the grievor’s pattern of misconduct and discipline, as well as the requirement for care and attentiveness in relation to all other civilian jobs, militated against transfer or demotion to another position.

In one of the June incidents, the other call-taker had a reasonable explanation for not soliciting information she assumed was already part of the record created by the grievor. As for the graphics employee, he was apparently transferred out of the communications department for non-culpable job performance, whereas the grievor’s improper performance was found to be culpable. Neither of these events established discriminatory discipline.

In short, the Employer’s response was not excessive in this case.

Grievance dismissed.

Authorities Cited

· Re Canada Post Corp. and C.U.P.W. (Chaplin) (1990), 11 L.A.C. (4th) 16 (Frankel)

· Re Greyhound Lines of Canada Ltd. and A.T.U., Local 1374 (1991), 22 L.A.C. (4th) 291 (McFetridge)

· Re Burlington (City) and C.U.P.E., Local 2723 (1994), 45 L.A.C. (4th) 17 (Brent)

· Re Cominco Ltd. and U.S.W.A., Local 480 (Gerard) (1996), 60 L.A.C. (4th) 246 (Bird)

· Re Industrial Family (Hamilton) Credit Union Ltd. and O.P.S.E.U., Local 343 (1995), 51 L.A.C. (4th) 443 (Hebdon)

· Re Toronto Police Services Board and Toronto Police Association (June 19, 2002, Starkman, OPAC #02-013)

· Brown & Beatty, Canadian Labour Arbitration (3d) (Aurora: Canada Law Book) paras. 7:3510; 7:3520; 7:3530; 7:3544; 7:3546; 7:4100; 7:4210; 7:4310; 7:4312; 7:4400; 7:4422)

· Re British Columbia Railway Co. and C.U.T.E., Local 6 (1988), 1 L.A.C. (4th) 72 (Hope)

· Re Wm. Scott & Co. [1976], BCLRB No. 46/76

· Re Wire Rope Industries Ltd. and U.S.W.A., Local 3910 (1983), 13 L.A.C. (3d) 261 (Hope)

· Re Calgary Handi-Bus. Assn. and A.T.U., Local 583 (Shoenberg) (2000), 90 L.A.C. (4th) 240 (Jolliffe)

· Re Pirelli Cables and Systems Ltd. and U.S.W.A., Local 2952 (Richardson) (2001), 101 L.A.C. (4th) 270 (Somjen)

· Re Edith Cavell Private Hospital and Hospital Employees’ Union, Local 180 (1982), 6 L.A.C. (3d) 229 (Hope)

· Re Purolator Courier Ltd. and Teamsters, Local 938 (1992), 24 L.A.C. (4th) 300 (Brent)

· Re Maritime Telegraph & Telephone Co. Ltd. and I.B.E.W., Local 1030 (1984), 16 L.A.C. (3d) 318 (Colter)

· Re Penticton & District Retirement Service and Hospital Employees’ Union, Local 180 (1978), 18 L.A.C. (2d) 107 (MacIntyre)

· Re British Columbia Hydro and Office and Technical Employees’ Union, Local 378 (1984), 14 L.A.C. (3d) 69 (MacIntyre)

· Re Steel Co. of Canada Ltd. and U.S.W.A., Local 1005 (1976), 7 L.A.C. (2d) 132 (Beatty)

· Re Cominco Ltd. and U.S.W.A., Local 480 (1975), 9 L.A.C. (2d) 233 (P.C. Weiler) · Re Liquid Carbonic Canada Ltd. and U.S.W.A., Local 12998 (1974), 5 L.A.C. (2d) 139 (O’Shea)

· Re International Chemical Workers, Local 721 and Brockville Chemical Industries Ltd. (1971), 23 L.A.C. 336 (Shime)

· Re Int’l Assn of Machinists and Gabriel of Canada Ltd. (1968), 19 L.A.C. 22 (Christie)

· Re Riverdale Hospital and C.U.P.E., Local 79 (1973), 2 L.A.C. (2d) 178 (Rayner)

· Re United Steelworkers of America, Local 3257 and Steel Equipment Co. Ltd. (1964), 14 L.A.C. 356 (Reville)

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