A POLICE ARBITRATION

BETWEEN

LONDON POLICE SERVICES BOARD (hereinafter called the “Employer")

A N D

LONDON POLICE ASSOCIATION (hereinafter called the "Association")

RE

Grievance of D Smithson

ARBITRATOR B Welling

APPEARANCES

For the Employer Mr David Thompson

For the Union Mr Andrew Camman

Hearings held in London Ontario on 24, 31 July and 01, 28, 29 August 2001

AWARD

This is a dismissal case involving a civilian employee. The Grievor is a 48 year old stationary engineer

with 23 years seniority. There is virtually no serious discipline on his work record. He was told he was

being dismissed after a curiously slapdash period of “monitoring” his work performance, during which

various failings were noted by his supervisor, but not pointed out to him. I am putting him back to

work.

I think that the London Police Services Board (and other similar employers) might learn something

about progressive discipline from this tale of mismanagement. That is the only reason I have set it out in

detail in this Award.

1. The Issues and the Players

The Grievor was notified of his dismissal in a letter of 31 Jan 2000 (Exhibit 1 Tab 2). The following

extracts set out the Employer’s conclusions at that time.

Take notice that you are forthwith suspended from duties with the London Police Service without pay. It is the intention of the Chief of Police to permanently discharge you from the London Police effective Tuesday, February 8, 2000. ...Further, take notice that your dismissal is based on allegations disclosed by the report attached to this letter as Appendix “A”. It is alleged that you are habitually insubordinate and obstructive toward your supervisor, in particular during incidents on the dates of January 7 and January 21, 2000. You have been counselled and disciplined in the past, and your work performance and attitude have not improved.

. . .

Appendix “A” Within the last ten years, you have never received a performance appraisal where you met standard in all areas. Five of the last eight appraisals have described your work as requiring improvement in the Quantity of Work category. Measures have been put into place to monitor your work performance, all of which have failed to improve your performance.

On March 24, 1998, Deputy Chief Goebel conducted a disciplinary hearing into your poor job performance. Three allegations were dealt with at that time. The first was that you failed to comply with London Police policy when you failed to immediately notify your supervisor that you had received a subpoena which caused you to be absent from work on December 15, 1997. A penalty of the loss of eight hours time was imposed. Secondly, you failed to sign off duty at the end of your shift on December 15, 1997, contrary to instructions previously issued to you. You were

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ordered to be counselled by the Division Commander. This was done, and a written warning was given to you. Finally, between November 1996 and December 1997, you failed to properly carry out the maintenance schedule for the gun range as you were instructed to do. The loss of sixteen hours was ordered.

In a further matter, after you were directed by your supervisor to submit a request for time off on the proper form, you unnecessarily wasted work time researching and submitting a report. You were counselled by Superintendent Vickery on April 9, 1998 and a written warning was served upon you.

On Monday, March 29, 1999, you were put on notice by Deputy Chief James Balmain that, as a result of your satisfactory work performance, you would be monitored as outlined in a written action plan for a three month period. If, at the end of that period, your work performance did not reflect a marked improvement, a recommendation would be made to terminate your employment with the London Police Service. The report discloses that there was no marked improvement.

Since this time, not only has your performance not improved, you have been obstructive and insubordinate. The culminating incidents took place on January 7, 2000 and January 21, 2000. On January 7, you were offered the opportunity for computer training on a new program along with your supervisor. You argued with your supervisor in front of the outside trainer, saying you weren’t dressed for training, then began to focus on a totally unrelated matter of separate passwords. You became so disruptive that you were sent away without any training. On January 21, fans shut down within the building. You went to the computer in the Fleet and Facilities Branch. You were asked by your supervisor if you had any ideas about getting the fans started again. You replied, “You are looking after it. I just got here.” You then got up and left the room. You were asked again a few minutes later for assistance while in the mechanical room by the same supervisor. You ignored your supervisor.

On my reading of that communication, the Employer cited and relied on the following grounds for

dismissal.

(i) Ten years of performance appraisals.

(ii) 24 Mar 98 - written warning - failure to sign off duty on 15 Dec 97

(iii) 24 Mar 98 - 8 hr Suspension - failure to notify re subpoena on 15 Dec 97

(iv) 24 Mar 98 - 16 hr suspension - failure to maintain gun range Nov 96 - Dec 97

(v) 09 Apr 98 - written warning - time wasted submitting report re time off

(vi) 1999 - failure to improve during three month monitoring period

(vii) 7 Jan 00 - culminating incident - “obstructive and insubordinate”

(viii) 21 Jan 00 - culminating incident - “obstructive and insubordinate”

Six witnesses gave evidence. Three were called by the Employer. They were.

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- Superintendent Dan Vickery (retired 1 June 2000) - Officer in Charge, Support

Services Division, since (I believe) some time in 1994. The “Fleet and Facilities”

branch was under his administrative direction.

- Mr Gar Irwin - Director - Fleet and Facilities since 1991 - reported directly to Supt.

Vickery. Mr Irwin assumed responsibility for the “facilities” personnel in (I believe)

1993. He had been hired by the Employer on 19 Aug 91, after some 27 years

experience (eventually as Service Manager) with two Ford Dealerships in London

- Mr Art Springett - the Grievor’s immediate supervisor. Mr Springett has worked for

this Employer for 42 years, almost all of it as a clerk, though he had acted as Fleet

Director during occasional managerial absences. He became the Grievor’s supervisor

in 1992. Interestingly, no one bothered to inform the Grievor when Mr Springett first

became his supervisor, and the Grievor spent the first few weeks under the mistaken

impression that Mr Springett had been assigned as his helper.

Three witnesses were called by the Association. They were;

- Ms Susan Moses - Secretary to the Chief of Police;

- Mr Walter Olszewski - “Maintenance Person” (the Grievor’s co-worker);

- The Grievor.

2. The Evidence on the Various Grounds for Dismissal

(i) Ten years of performance appraisals

Mr Thompson filed completed “Performance Appraisal Report” forms, done annually (May to May)

on the Grievor’s work performance for the years 91-92 through 96-96 (Exhibit 3) and 96-97 through

98-99 (Exhibit 1 Tab 7). Various witnesses were questioned about them.

Supt. Vickery had little to say about them on direct examination. He had reviewed the more recent

ones, but they were completed by Mr Springett and reviewed by Mr Irwin before they got to him and

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he relied on their comments. He conceded on cross-examination that he didn’t know how well the

Grievor was performing, or how much work he was doing, except through their observations and

comments. He also agreed that the only persistent problem noted appeared to be the quantity of work

the Grievor performed.

Mr Art Springett, the Grievor’s supervisor, completed the evaluation forms. He had no previous

experience in evaluating employees and received no training as to how to do it. On cross-examination it

turned out that he knew nothing about the Employer’s discipline policy, which advocated progressive

discipline and made a clear distinction between “informal discipline” and “formal discipline”. He had

been given no training on administering the Collective Agreement. His view was that he just did the

evaluations and turned them over to his superiors. When asked what corrective action he had ever

taken regarding the critical written comments he made on annual evaluations he replied “I didn’t do

anything with respect to it”.

Mr Gar Irwin annually reviewed the performance appraisals after the forms were completed by Mr

Springett. Then the two of them discussed the appraisals with the Grievor. This was consistent with his

practice with other employees. Mr Irwin was led through the annual appraisals in some detail by Mr

Thompson on direct examination.

The 92-93 appraisal was the first in which Mr Irwin and Mr Springett were involved. Apart from

noting “Needs Improvement” in “Prompt returning from rest/lunch periods and meetings” and a couple

of other minor points, the main criticism appeared to be in the category “Quantity of Work”. The pre­

printed form gave the reviewer the opportunity to select one of three categories. They were:

Consistently meets X Often meets standard Improvement required standard but sometimes is below to meet standard

The Grievor’s 92-93 rating was in the middle category. Mr Irwin’s typed comments on the form, and

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his testimony, indicated that he was then optimistic that the Grievor’s “productivity” would improve

under the new work-order system being introduced.

The 93-94 appraisal was less favourable overall. The Grievor again was noted as “Needs

Improvement” in “Prompt returning from rest/lunch periods and meetings” and 4 of 9 other categories

under the heading “Responsibility”. Mr Irwin recalled having been given “a litany of excuses” during the

interview when he or Mr Springett asked what they could do to help him “get going on jobs quicker”.

He also testified that the Grievor was “prone to discuss why a job should not be done, rather than just

starting [it]”. In the “Quantity of Work” category, the same three choices

Consistently meets Often meets standard X Improvement required

standard but sometimes is below to meet standard

were presented. The Grievor’s 93-94 rating was in the lowest category. Mr Springett’s written

comments were : “Takes excessive time to get started on jobs assigned. Hard to find”. He also noted

that the Grievor seemed to resent being supervised by someone who “was not a tradesman” and who

didn’t understand the work. This became a recurring theme over the years. Mr Irwin’s typed

comments on the form were:

We will continue to support Mr Smithson to a higher level. It is in his power to reflect on and improv4e in the areas that need improvement. I told him it is imperative.

Something about that performance appraisal and interview prompted Mr Irwin to write a memo to

Superintendent Crump (Supt. Vickery’s predecessor, I believe). In it, Mr Irwin reported to his superior

officer the following details (among others that I find to be of lesser significance in this Arbitration)

Mr Springett indicated verbally to Mr Smithson, his concern with Category Three (3). Mr Springett went on to say, in his opinion, that jobs take too long to start and finish. That, when Mr Springett was making his “Rounds of Supervision”, he had problems locating Mr Smithson, in the area he was tasked to.Mr Springett also indicated that in Category (4), there could be a lot more improvement in the attempt to start a challenging project, than procrastinate on why it cannot be done. It seems a lot of productive time is wasted in idle talk with fellow employees.

. . . I indicated to Mr Smithson that he needed to make better use of his time, fill in down time (waiting

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for parts, etc) by completing other small jobs, reflect himself as motivated and that he is a Team Player. I reviewed with him, that we purposely introduced measures such as a New Work Order Request Format, re-directed phone calls for service, bought tools to enhance productivity, Log Book for accountability, all for the purpose of eliminating side issues, and focusing on productivity and efficiency. That the Fleet and Facilities Branch Office would shoulder these distractions. Both Mr Springett and I, after these measures, still do not see any significant improvement in Mr Smithson’s over all 1993-1994 performance package. We told him so in Category Twelve (12), and clearly indicated we will expect more in ht e1994-1995 Appraisal Period. Not only did we indicate we expect it, but we demand it. We will continue to support his efforts, but indicated that a process procedure of documentation (including a recently signed May 20, 1994 incident report) had started.

Mr Irwin explained that he wrote the memo because he thought it was important to be clear, since the

appraisal form had insufficient space to expand on details. He was asked to explain what he meant by

“process procedure”: he said something about the necessity of documenting discussions, but didn’t

really clarify the term. On cross-examination, he said he thought he had reviewed the memo with the

Grievor, but admitted that it was not initialed by the Grievor, as would be required by the Collective

Agreement. I conclude that no one told the Grievor about it.

The 94-95 appraisal was similar. The Grievor again was noted as “Needs Improvement” in “Prompt

returning from rest/lunch periods and meetings” and 3 of 9 other categories under the heading

“Responsibility”. Mr Irwin again recalled having been given “a litany” of reasons why he was slow. In

the “Quantity of Work” category, the same three choices

Consistently meets Often meets standard X Improvement required

standard but sometimes is below to meet standard

were presented. The Grievor’s 94-95 rating was in the lowest category. However, some improvement

was noted: Mr Irwin’s typed comments on the form were:

I am pleased that there is an improvement in quantity of work, but would be more pleased if he consistently met standard.

The 95-96 appraisal showed improvement. The Grievor was noted as “Meets Standard” in “Prompt

returning from rest/lunch periods and meetings”. In the “Quantity of Work” category, the same three

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choices

Consistently meets X Often meets standard Improvement required

standard but sometimes is below to meet standard

were presented. The Grievor’s 95-96 rating was in the middle category, but Mr Springett wrote

“[t]here has been considerable improvement during the last twelve months. Mr Irwin’s typed comments

on the form were:

I am encouraged by this Appraisal Evaluation ... . I like the direction Doug Smithson seems to be

focused on.

The 96-97 appraisal form contained a change that I regard as significant. Again, in the “Quantity of

Work” category, three choices

Consistently exceeds X Often meets standard Improvement required

standard but sometimes is below to meet standard

were presented. However, the highest rating now required that the employee “consistently exceeds

standard”. The Grievor’s rating was in the middle category. I note - with some confusion - that there

would appear to be no applicable rating for an employee who consistently met standard after 1996.

That may have been the Grievor’s situation, as Mr Springett wrote “[u]sually meets standard”. Once

again, the Grievor was noted as “Needs Improvement” in “Prompt returning from rest/lunch periods and

meetings”. Mr Irwin made no significant comments, either on the form or at the hearing.

In the 97-98 appraisal form, in the “Quantity of Work” category, the three new choices

Consistently exceeds Often meets standard X Improvement required

standard but sometimes is below to meet standard

again were presented. The Grievor’s rating was in the lowest category. Mr Springett wrote that the

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Grievor “spends approximately one hour most mornings [on our custodian computer] which is

excessive”: he estimated that it was a 15 minute job, and said that when he told the Grievor he was

taking too long the response was “you don’t know what you’re talking about”. Mr Irwin was asked

about Mr Springett’s comment: he estimated that it was a “10 minute job” and said that the Grievor

claimed that he was “adjusting levels”. This year the Grievor was rated as “Needs Improvement” in six

of nine categories under “Responsibility”, including (once again) the category “Prompt returning from

rest/lunch periods and meetings”.

The 98-99 appraisal form was the last completed for the Grievor. In the “Quantity of Work”

category, the three new choices

Consistently exceeds Often meets standard X Improvement required

standard but sometimes is below to meet standard

again were presented. Again the Grievor was rated in the lowest category. He was rated as Needs

Improvement” in eight of ten categories under “Responsibility”. Mr Irwin was more expansive. In his

written comments he said:

Very poor performance demonstrated again; needs improvement in most, or all, areas. I have asked

Mr Smithson on how management could assist or encourage him to “at least meet standards” in all

the areas. He hasn’t taken any initiative to support and work with his supervisor. In my opinion,

he is not a “team player”, and has continually demonstrated this trait for the last six years or more.

Mr Irwin was cross-examined about management’s failure to discipline the Grievor for his lack of

quantity of work. He agreed with the following propositions. (i) Annual performance evaluations are

not a form of discipline (ii) The Employer’s category “informal discipline” - consisting of incremental

categories from “counseling” at the lowest level, up to a maximum of 16 hours of pay deduction at the

highest - was a series of agreed penalties, in the sense that they could be suggested by management, but

could only be imposed if the employee elected to accept the suggested informal discipline rather than

requiring a formal investigation or hearing. (iii) After going through those increments, the proper course

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was to impose formal discipline. (iv) Repeated formal discipline could lead to dismissal. (v) Over the

period of performance evaluations reviewed, between 1993 and 1999, no informal discipline was

ever attempted to correct the Grievor’s failure to meet standards in the category “Quantity of

Work”.

Mr Irwin was asked to explain the failure to discipline. He said that he didn’t “feel” that informal

discipline would have had any effect on the Grievor, but admitted that he could not have known that it

wouldn’t. He said that he was more interested in turning the man around than in disciplining him”.

Notwithstanding that view, Mr Irwin admitted that, in the Employer’s labour relations policy, increments

of progressive discipline were not only advisable, but required.

No one explained to me what the supposed “standards” were. No one told the Grievor what

“standards” he was expected to perform to, or whether the frequent assessment “often meets standard

but sometimes is below” was a bad assessment. It wouldn’t surprise me if someone who failed to be

rated “consistently exceeds standards” thought he was doing just fine. It does surprise me that an

Employer who didn’t think he was doing just fine would simply carry on assessing the employee for

years, without every applying progressive discipline to correct the perceived defective behaviour.

The years of annual assessments are, in my view, largely irrelevant in this case. If anything, they show

a pattern of condoning the Grievor’s perceived lack of quantity of work.

(ii) 24 Mar 98 - written warning - failure to sign off duty on 15 Dec 97

The Grievor was disciplined on 24 Mar 98. He had gone to court under subpoena on 15 Dec 97, but

had failed to sign off duty when he went. Supt Vickery reviewed the incident as follows in his memo of

17 Jan 2000 (Exhibit 1 Tab 4,) recommending the Grievor’s dismissal.

Mr Smithson failed to sign off duty at the end of his shift on December 15, 1997, contrary to instructions previously issued to him. He was ordered to be counseled by the Division Commander. This was done and written notice served upon Mr Smithson on April 9, 1998.

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During cross-examination Supt Vickery agreed that this was not a particularly serious offence.

(iii) 24 Mar 98 - 8 hr Suspension - failure to notify re subpoena on 15 Dec 97

The Grievor was also disciplined on 24 Mar 98 for a second offence related to the court appearance

on 15 Dec 97. He had failed to advise his supervisor when he received the subpoena. Supt Vickery

reviewed the incident as follows in his memo of 17 Jan 2000 (Exhibit 1 Tab 4,) recommending the

Grievor’s dismissal.

Mr Smithson failed to comply with London Police Policy when he failed to immediately advise his supervisor that he had received a subpoena which caused him to be absent from work on Dec 15, 1997. A penalty of the loss of 8 hours time was imposed.

Supt Vickery testified at the hearing that, upon receiving a subpoena, the “proper policy” was for the

employee to notify his supervisor so that alternative arrangements could be made. He agreed on

cross-examination that the Grievor would not have been replaced anyway. Apparently, the Grievor had

forgotten about the subpoena, remembered it the day he was required in court, explained that day about

the subpoena, and was subsequently disciplined for not having reported it as soon as he knew about it.

(iv) 24 Mar 98 - 16 hr suspension - failure to maintain gun range Nov 96 - Dec 97

On the same day, the Grievor was disciplined for having failed to maintain the gun range between Nov

96 and Dec 97. Supt Vickery reviewed the incident as follows in his memo of 17 Jan 2000 (Exhibit 1

Tab 4,) recommending the Grievor’s dismissal.

Between November 1996 and December 1997 Mr Smithson failed to properly carry out the maintenance schedule for the gun range as he was instructed to do. The loss of 16 hours was ordered.

There was some controversy between the parties as to whether the routine maintenance of the gun

range was the Grievor’s assigned responsibility or one of the tasks that his supervisor could have told

him when to do, but didn’t. For my purposes, that controversy is resolved by that fact that he was

disciplined and no grievance about that discipline was filed. That incident, plus the incidents set out

under headings (ii) and (iii) form part of his discipline record.

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(v) 09 Apr 98 - written warning - time wasted submitting report re time off

On 10 Dec 97 the Grievor was told by Mr Springett that the receptionist had received a phone call

and that he was to phone his son’s school. He did, and was told that his son was ill. He asked the

receptionist to notify Mr Springett that he was leaving to pick up his child, then went. Thus far, there

were no problems: the Collective Agreement authorized leaving work to care for an ill child if the

absence was approved by the Division Commander (here Supt Vickery) and, as I understand the

evidence, that approval could routinely be procured in retrospect by filing a report explaining what had

happened.

Supt Vickery testified that the routine procedure required that “the receptionist would complete a form

and the employee would file an absence report upon [his] return”. He thus told Mr Springett to have

the Grievor file his report. When, a few days later (I wasn’t told how many) no report had been

received, Supt Vickery gave Mr Springett a deadline by which he required the Grievor to have a report

filed “on my desk”. He then received “ a sick occurrence form that the receptionist should have filed,

but filed by [the Grievor]”. Later, apparently after a discussion with his supervisor about the required

form of the report, the Grievor filed a three page, handwritten report. Supt Vickery testified that he

took exception to the facts that the Grievor wrote the report “on company time”, that it “was verbose,

far more than I required”, and that the Grievor “made an ordeal of it”, whereas (by contrast) he was

able to approve of “98% of such absences after the employee files a simple series of statements, for

example, ‘school phoned, my child was sick, I picked him up, cared for him, was off for x hours’”. On

cross-examination he was asked the following questions and gave the following answers.

Q Was this just a battle of wills?

A Not on my part.

Q [Was the problem] that it not on the right piece of paper?

A Ok.

Q But was the required information there?

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A I don’t remember (but I can’t say no).

Supt Vickery reviewed the incident as follows in his memo of 17 Jan 2000 (Exhibit 1 Tab 4,)

recommending the Grievor’s dismissal.

A matter which arose out of the same set of circumstances and which was not dealt with by the officer hearing the allegations [about incidents (ii), (iii), and (iv) above] was that after Mr Smithson was directed by his supervisor to submit a request for time off on the proper form he wasted unnecessary working time researching and submitting a report. He was counseled by me on April 9, 1998, and a written warning was served upon Mr Smithson in the same report as dealt with under allegation #2 [incident (ii), above], failing to sign off duty.

The Grievor took the position that this was “nit-picking. Mr Camman made much of the point that this

was a trivial incident about filing a report on the wrong coloured paper. Essentially, I’d be inclined to

agree. However, this too was discipline imposed, and no grievance was filed, so I must treat the written

warning as part of his disciplinary record.

(vi) 1999 - failure to improve during three month monitoring period

In 1999, the Employer decided to monitor the Grievor’s work performance for three, thirty day

periods. Much of the evidence at the hearing involved this monitoring period. Supt Vickery reviewed

the process as follows in his memo of 17 Jan 2000 (Exhibit 1 Tab 4,) recommending the Grievor’s

dismissal.

On Monday March 29, 1999, Mr Douglas Smithson #30016 was put on notice by Deputy Chief James Balmain that, as a result of his unsatisfactory work performance, his work performance would be monitored as outlined in a written action plan for a three month period. If at the end of that period his work performance did not reflect a marked improvement, a recommendation would be made to terminate his employment with the London Police Service.

. .. . Mr Smithson was served with a notice outlining steps that would be taken to address inadequacies in his work performance. That report indicates that his work performance and work related behaviour, as reflected in entries in his incident file maintained by his supervisor, did not meet minimum standard.

. . . After each thirty day period, reports were submitted by his supervisor. The first two thirty day reports were reviewed with Mr Smithson by his supervisor. I was present and recorded notes. It was his supervisor’s observation that Mr Smithson misuses his time and he deliberately tried to mislead his supervisor on more than one occasion. He called his supervisor a liar, paranoid and a clerk. At the end of that interview Mr Irwin suggested to Mr Smithson that micro management would be discontinued if he worked as a team player and worked in a pro active manner. He said he always has been a team player and pro active but it is his supervisor who is the problem. Mr Irwin, Mr Springett and myself collectively decided to change the management style for the

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remaining thirty day evaluation. It was our unanimous decision to alter the daily reporting and recording requirements in place to monitor the work performance of Mr Smithson. Because of holidays a thirty day observation was not commenced until September 7 and was completed on October 6, 1999. I reviewed this report in December 1999. The report contained a recommendation to terminate the employment of Mr Smithson. This final report has not been reviewed with Mr Smithson.

Supt Vickery testified that he instructed Mr Springett, the Grievor’s supervisor, to “just tag along” with

the Grievor for a half day at a time to see what the job entailed and how long it took. He said that it

was also a learning experience for Mr Springett. He told Mr Springett to submit a report to him at the

end of each 30 day period and to keep him informed “verbally” (I assume he meant orally). He

reviewed the reports from the first two 30 day periods - one dated 14 May 99 (Exhibit 1 Tab 5 pp 1­

19), the other dated 16 Jun 99 (Exhibit 1 Tab 5 pp 20-33) - and noted both were reviewed with the

Grievor, but only after the end of the first 60 days. He clarified that point by noting that he, Mr Irwin,

and Mr Springett attended, but that he participated in the meeting only to observe, taking notes, while

Mr Springett went over the notes with the Grievor. After the Grievor left the three of them decided to

“relax the monitoring somewhat”. Supt Vickery had no follow-up meeting with the Grievor. He

subsequently received Mr Springett’s third 30 day report (Exhibit 1 Tab 6 undated).

On cross-examination, Supt Vickery agreed that the intent of the monitoring process was to improve

the Grievor’s performance. However, he also agreed that the appropriate way to do that would be for

his Supervisor, Mr Springett, to correct improper behaviour at the time he observed it. He was led

through the dozens of specific flaws catalogued by Mr Springett in the many pages of his reports. With

one or two minor exceptions, he found no indication of any corrective measures having been taken by

the supervisor. He was asked, and agreed, “if [the supervisor is] not doing something about it, he’s not

correcting the behaviour”.

Mr Irwin also testified about the monitoring process. He said that Supt Vickery had made Mr

Springett responsible for it, but that he and Mr Smithson “talked daily” during the process. He recalled

that at the meeting after 60 days the Grievor complained about being forced to sign on and sign off

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particular tasks, that he gave the Grievor permission to just make log entries when convenient rather

than at the time, and that the new process “worked for about two days, then [the Grievor] went back to

his old style”. I gather he meant that the Grievor began taking too long to do his work. He was asked

whether that was then discussed with the Grievor. He answered, “no we did not; I just let him free­

wheel for another 30 days. He knew our expectations”. He confirmed, on cross-examination, that no

one told the Grievor anything to correct what he was doing wrong while being monitored, until the

meeting at the end of 60 days. Curiously, he also said that he considered the monitoring process a form

of “informal discipline”, and that, although he knew that the Collective Agreement (or the “Protocol”,

what ever that means) required that any informal discipline required a notation on the employee’s file, he

made no such notation.

Mr Springett also testified about the monitoring process. He described his responsibility as “I was

tasked with doing 90 days [of] following them around [and] to report what I saw”. (By “them”, he

meant to indicate that Mr Walter Olszewski, the Grievor’s co-worker was undergoing the same

monitoring: I have left those details out as I didn’t find them of any use in my decision in the Grievor”s

case.) On direct examination he said “I understood my task was to keep notes and report what was

going on”. He was asked several times whether he had spoken to the Grievor to correct the

misbehaviour he was observing during the monitoring period. He consistently (and honestly) replied that

he did not, until the meeting after 60 days. He justified that by saying “he knew we were keeping track

[and] I did not feel it appropriate to speak to him about it (referring specifically to his being hard to find)

during the 30 day period.” He said on cross-examination that he came to that conclusion because he

had not been told to take corrective action, that “I monitored and recorded” because that was all he had

been told to do.

Mr Springett explained that he was not satisfied with the Grievor’s performance before the monitoring

process began. He gave the following list of problems:

- longer breaks than designated

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- late back from lunch most days

- when asked to do a job, he could find an hour to tell me why he had no time to

do it

- lack of work completed is a day

and said he’d had “several conversations” about those issues before the monitoring began.

In sum, Mr Springett conceded that, as the Grievor’s supervisor, he followed him around over a

period of 60 days making detailed notes about flaws in his work performance, but never took any

corrective or disciplinary action regarding any of them. Nor did he give the Grievor a copy of his report

at the end of the first 30 days.

The Grievor’s testimony confirmed my suspicions about management. He said that he sometimes got

back from lunch or breaks late because senior officers would stop him on the way back and have him

do minor tasks, such as hanging pictures in their offices. His evidence was uncontradicted on that point.

He was called in by Deputy Chief Balmain on 29 Mar 99, told he would be monitored for three

months, and would dismissed if his performance did not improve. No Association representative was

present. No one by then had told him his performance was defective (except to the extent that was

suggested by annual performance appraisals) and no one told what specific corrections were to be

looked for during the monitoring period. He confirmed that Deputy Chief read him the following letter

(Exhibit 7 p 3).

Beginning this week and for a three month period, your supervisor, Art Springett, will monitor your work performance on a rotation basis, Tuesday of one week and the Wednesday of the following week, from the start time of your shift until 1:30 p.m.A report of your work performance will be submitted to the Superintendent, Support Services Division, after every thirty (30) days and this report will be reviewed with you.The close supervision and monitoring of your work performance has been deemed necessary in order to address the inadequacies of your work performance as reflected in numerous entries in the incident file kept by your supervisor.The administration of the London Police Service views your work performance and work related behaviour, as reflected in those entries, as not meeting minimum standard and allowing the present situation to continue would seriously compromise our efficiency and effectiveness.Should your work performance in the next three (3) months not reflect a marked improvement, a

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recommendation will be made to terminate your employment with the London Police Service.

The Grievor confirmed that Mr Springett merely watched and made notes during the first 60 days of

the monitoring period.. He knew nothing of the contents of those notes until the meeting at the end of

60 days. When he left the meeting he assumed that the third 30 day period of monitoring would start

immediately, as no one had told him otherwise. When he was informed the next by Mr Springett that

“there would be no more walk-arounds”, he assumed that Supt Vickery had concluded that Mr

Springett was the problem and that the proposed third 30 day period had been abandoned. No one

ever told him that it had been postponed. No one ever told him that the third 30 day period had been

rescheduled to start in early September. I accept management’s evidence that it was impossible to

conduct the third monitoring period earlier, owing to the Grievor’s and others’ vacation times.

However, the point here is the lack of information given to the Grievor. I believe his evidence that he

simply concluded that it was over after 60 days.

The exercise of monitoring the Grievor’s work was a mismanaged fiasco. It was not discipline at all.

(vii) 7 Jan 00 - culminating incident - “obstructive and insubordinate”

The Employer relied on two “culminating incidents” in Appendix A to the dismissal letter of 31 Jan00

(Exhibit 1 Tab 2). The first, on 7 Jan 00 was referred to as follows.

On January 7, you were offered the opportunity for computer training on a new program along with

your supervisor. You argued with your supervisor in front of the outside trainer, saying you

weren’t dressed for training, then began to focus on a totally unrelated matter of separate

passwords. You became so disruptive that you were sent away without any training.

Mr Springett testified that the Grievor was originally scheduled to be trained on a later day, but his co­

worker was off ill, so Mr Springett asked the Grievor to take his place. He said the Grievor claimed

that he wasn’t dressed properly (which Mr Springett found irrelevant, as did I) and that he insisted on

talking about passwords (which Mr Springett found off topic, which I am sure it was). He reviewed

what happened in notes, filed as the second last page of Exhibit 1 Tab 6. I reproduce them here,

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having corrected a few typographical errors.

Smithson 00 01 07 Training for Art Springett and Walter Olszewski scheduled for 1300 hours Jan 7/00. Smithson on lunch till 1304 hours but is not in office at 1310 hours. I go to Foreman’s office for a couple of minutes and come back to the office and Doug Smithson has arrived and is talking to the trainer. I tell them I will get another chair for myself. Doug Smithson asked why as he was leaving and I told him he was taking Walter’s place as Walter was sick. Doug Smithson argues about this and said he was dressed for working in the data entry area. I decided that it would be best for Doug Smithson to take the training now. The trainer asked for one of us to sit at the computer and I told Doug Smithson to move up to the computer. He said I knew more about it than him and I should be at the computer. I told him that was the point. (He needed the practice more than me). Doug Smithson asked what his password would be as he wanted to know who had been on the computer. The trainer said he knew nothing about separate passwords. I said let’s get on with the training. Doug Smithson kept on about needing separate passwords so he would know if someone else made changes. I said let’s get on with the training because that is why we are here and if you keep this up you might as well leave. Mr Smithson kept it up about the password and I told him to leave. In my opinion the total training time would have been wasted if Mr Smithson remained. I apologized to the trainer for the uncomfortable situation and we carried on with my training.

I note that Mr Springett appears to have said nothing about discipline at that time. He handled the

situation by simply saying (and recording) “if you keep this up you might as well leave. Mr Smithson

kept it up about the password and I told him to leave.” The Grievor was first told on 31 Jan - 24 days

later - that he was being disciplined for the incident.

The Grievor testified that he was re-wiring some computers and that “10 girls” were sitting around

unable to get any work done until he finished the re-wiring. He appears to have thought that was more

important than being trained on the computer. While he might have been correct about that, it wasn’t

his decision to make. He said that he was concerned about passwords because he did not want to be

blamed if his supervisor made a mistake that got attributed to him. His recollection was that Mr

Springett got flustered, but that there was little else noteworthy about the incident.

Neither the Grievor nor his supervisor performed particularly well during this incident. I suspect that

the Grievor was rude and deliberately obstructive. However, I can not find on the evidence that he

disobeyed any order he was given. I don’t think insubordination is proved.

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(viii) 21 Jan 00 - culminating incident - “obstructive and insubordinate”

The second culminating incident was referred to as follows in Appendix A to the dismissal letter of 31

Jan00 (Exhibit 1 Tab 2).

On January 21, fans shut down within the building. You went to the computer in the Fleet and Facilities Branch. You were asked by your supervisor if you had any ideas about getting the fans started again. You replied, “You are looking after it. I just got here.” You then got up and left the room. You were asked again a few minutes later for assistance while in the mechanical room by the same supervisor. You ignored your supervisor.

Mr Springett reviewed what happened in notes, filed as the last page of Exhibit 1 Tab 6. I reproduce

them here.

Smithson 00 01 21 AO1 Fans off. Smithson came in to the office and sat in the chair close to the computer. I came in to the office and start checking the computer to see if I could start them this way. I ask Smithson if he has any ideas. He states “you are looking after it I just got here.” After this comment he got up and walked out of the office. He noted in the log he was working on a coat rack. I stayed at the computer for a few minutes but could not start the fans. One possibility would be the freeze stat had shut down the fans. At about 0900 hours I went to the mechanical room and Mr Smithson was in the area of the small generator where he had set up a table to work on the coat racks. I asked Mr Smithson if he had any suggestions to start the fans and he just looked at me and then turned towards the table. I asked Mr Olszewski if he would assist in getting the fans going and he came to my assistance and we reset the freeze stat and the fans started up. Within a few minutes the fire alarm went off. Note: A Durell Control employee was working on the other A.H.U. and had it shut down. The humidifier started up and forced steam into the duct setting off the alarm. Several minutes later Mr Smithson and Mr Olszewski came into the office where the Fire Alarm is controlled. Mr Smithson stood back and offered no solutions while Mr Olszewski made suggestions to bypass the fault and get the alarm back up and the emergency doors operating again.

I see no reference there to any disciplinary action taken or threatened at the time. Mr Springett testified

that when he asked if Mr Smithson had any ideas, that was a request that Mr Smithson help him. He

said he reported the incident to Mr Irwin. The first time management advised the Grievor that this was a

disciplinary incident appears to have been 10 days later, in the dismissal letter.

The Grievor testified that he may have said “you’re looking after it” when asked if he knew why the

fans were down, but that he made no suggestions because he didn’t know. He said he didn’t assist

because Mr Springett never asked him to. He said he already had his work assignment and was not

asked to help out. I’m not sure I believe that, and once again I think he was probably being rude and

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uncooperative. However, yet again there is no evidence that he was given and disobeyed any clear

orders.

The incident of 21 Jan 00 could have been a disciplinary incident if it had been handled as one by his

supervisor but, on the evidence before me, it wasn’t.

Conclusions

No culminating incidents of a disciplinary nature were proved. I therefore find that the Grievor was

dismissed without cause.

I heard some evidence that only someone at the level of Supt Vickery could discipline employees, at

least at the formal stages. Whatever the internal rules regarding that point, management can not hide

behind them in a case of abject failure to notify an employee at the time of a potentially disciplinary

incident. It must be the responsibility of a supervisor to at least alert a misbehaving employee that his

misbehavior is unacceptable and that discipline will be recommended. The Grievor’s supervisor did not

do that. The people higher up the chain of command - Mr Irwin and Supt Vickery - candidly admitted

that they relied on Mr Springett and had little knowledge of how the Grievor was doing, except through

his supervisor’s reports. The Employer - the Police Services Board - can not take advantage of its own

sloppy internal procedures to escape the due process required by accepted labour relations process.

Mr Thompson argued that this was a proper case for me to uphold the dismissal and order the

equivalent of damages for wrongful dismissal in a non-labour case. He cited well-known cases - Re La

Chaumier Retirement Residence, 37 L.A.C. 4th 86 (Roberts, 1993); Re Doughty Concrete

Products Ltd., 59 L.A.C. 4th 89 (Hunter, (1996); Re Shaver Hospital, 20 L.A.C. 4th 122 (Rayner,

1991); Re Liquid Carbonic Inc. (1996), 135 D.L.R. 4th 493 (Ont. Div’nl Ct.); Re De Haviland Inc.,

83 L.A.C. 4th 157 (Rayner, 1999) and Re London Machinery Inc., [2000] O.L.A.A. No. 338

(Welling) - noting that I ruled against the Employer in the last case. Mr Thompson suggested that I

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3

should not put the Grievor back to work. The main reasons he gave were that the Grievor seems

convinced that he has done nothing wrong and that he would have to go back to working under Mr

Springett, since he can’t be re-assigned to other work with this Employer. While I accept that he is

correct on both those points, I do not predict that the Grievor is so incorrigible that the employment

relationship is irreparable. Furthermore. I agree with Mr Camman, that to order a pay-out in this

circumstances would amount to rewarding bad management.

I am sending the Grievor back to work immediately. I suggest he consider himself lucky: I have

imposed no discipline only because I found no grounds proved by the evidence, and not because I think

highly of his work performance or attitude. I recommend that he learn some humility, that he learn to

say “yes sir” instead of merely tolerating his supervisor, and that he generally change his attitude and

began actively to co-operate with his superiors. If he does not, I predict that discipline next time will be

swift and decisive, and he may find himself really dismissed soon.

That does not dispose of all the issues in this case. The Grievor was asked at the hearing whether he

had sought employment elsewhere. He candidly admitted that he had not.

The Employer is clearly entitled to take advantage of the fact that the Grievor has not mitigated his

losses. Thus, despite the fact that I have found no cause for discipline and have reinstated the Grievor

without loss of any employment time, he is not entitled to be paid the unmitigated portion of his lost

employment income. The remaining issue is the determination of the unmitigated amount - ie how much

could the Grievor have made by seeking and securing employment elsewhere during the time he was off

work?

Mr Thompson and Mr Camman were good enough to agree to try and work out a settlement of this

issue. I encourage them to do so with the following points in mind. I have no sympathy for the

Grievor’s failure to attempt mitigation. However, I hold the Employer responsible for everything else

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that happened in this case. I expect the Employer to accept that the Grievor - with 23 years seniority ­

could not have quickly secured meaningful alternative employment, and that whatever employment he

might have found would not nearly have replaced his lost income. I expect meaningful compromise in

this negotiation. If the parties return to me for a decision on the point, I shall not hesitate to hold the

recalcitrant party responsible for costs.

The Grievance is allowed. I retain jurisdiction until 30 Nov 01 against the unlikely event that the

parties are unable to resolve the mitigation issue.

Issued at London Ontario on 24 Sep 01

B Welling Arbitrator

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