OPSEU Article 30, WDHP and an Update
Dear Steve Orsini,
I will share that I am disappointed to not have heard back from you in any way to this point. I had hoped that in sharing concerns that I believe are across the OPS at the worker level, which is more open to sharing with me than they are with you, would provide you with insight that should concern you as the leader of the OPS.
Your silence, even to the point of not reassuring myself or those who have read the public documents that I have shared, that you are now aware of the issues I have put forth and are following up on them is greatly disappointing. It is hard not to feel that for all your promotion of the OPS of the Future and the desire you professed to have to hear from OPS members, is nothing more than lip service.
Well, I will not give up as it is important to me that concerns I know of, or are shared with me from various sources in the OPS must be shared, and the awareness of rights and entitlements as well as issues must be addressed even should you choose to remain silent.
So in an effort to share once more I will start with the concerns about the OPSEU Collective Agreement Article 30.
Article 30 – Employee Right to Representation
When you take the time to read this Article over it is not difficult to see that there is very clear direction as to how this article is to be applied and to understand that unlike past situations where the employer would try to put the onus on the employee to address concerns about representation. Article 30 says:
“ARTICLE 30 – EMPLOYEE RIGHT TO REPRESENTATION
30.1 Where a supervisor or other Employer representative intends to meet with an employee:
a) for disciplinary purposes;
b) to investigate matters which may result in disciplinary action;
c) for a formal counselling session with regard to unsatisfactory performance or behaviour;
d) for termination of employment;
e) for matters related to the development, implementation and administration of an accommodation or return to work plan;
f) to discuss attendance management issues under the Employer’s attendance management program;
g) for layoff/surplus;
h) any other provision in the collective agreement where the right to representation is referenced;
the employee shall have the right to be accompanied by and represented by a Union representative.
The Employer shall notify the employee of this right and advise the employee and the Union of the time and place for the meeting. If no union representative is reasonably available to meet at the time established, the Employer may set a meeting within the next twenty-four (24) hours taking into consideration, to the extent possible, the union’s availability.”
The article starts the process with an effort to be made by the employer to determine why they will meet with any employee(s) by having the employer determine the intent (“intends”) for the meeting. It is up to the employer with their partners in HR to determine if the intention meets any of the criteria of a) through to h). If the intent is covered by one of those eight scenarios or qualifiers, then the employer is given more clear direction in the part that is at the end of that list. It is no doubt made known to management (or should be) that if there is any doubt or question as to whether or not the qualifiers are being met, then erring on the side of caution will never be a bad thing to do.
Why? Because this Article is as much to protect the employer and their investigation/disciplinary processes as it is to protect the employee’s rights. A common result in law is that if the fundamental right to representation has been denied at any point, the employer will have a very difficult time ensuring that any proposed discipline will not be overturned because of this concern. Jurisprudence is full of examples of situations where the discipline has been overturned and there is no chance to start over and get it right. The very large majority of grievances will have this as the outcome.
So what is the next information regarding the process that the employer must follow? The employer is the only one who is always aware of the intended reason for a meeting so when they have determined that even one of the qualifiers has been met, they must acknowledge that:
“the employee shall have the right to be accompanied by and represented by a Union representative.”
The key to this part of the acknowledgement is that “represented by” statement as far too often the employer has tried to deny members representation by stating that yes, you can have someone accompany you to a meeting for a process, but their role will be for support only. The above acknowledgement makes it clear that if any meeting for any process what so ever that has met the criteria, the Union Representative will be “representing” the member and the employer will try to stop them from doing so at the risk of a grievance based on a violation of this article. This will be addressed further in the next section of this letter.
The next part of the article now gives specific direction (orders) on how management has to comply with this article by stating that in order to meet the obligation regarding representation:
“The Employer shall notify the employee of this right and advise the employee and the Union of the time and place for the meeting. If no union representative is reasonably available to meet at the time established, the Employer may set a meeting within the next twenty-four (24) hours taking into consideration, to the extent possible, the union’s availability.”
The word “shall” in our collective agreement makes it clear that there is an obligation to do something which is described after the word shall. Again, only the employer is aware of what they are doing and why and when and all the other details for whatever meeting they are setting up. Therefore it makes perfect sense that it is the employer’s responsibility to make the arrangements and if necessary, a concession, in order to ensure that the right to representation is protected and respected.
It is the responsibility of the employer and not the employee to advise the union of any meeting that meets the requirements for ensuring representation. In the past the employer would insist that the employee must contact the union to make arrangements. Again, the employee often has no clue as to the nature of the meeting and therefore are not aware of the need or rationale for getting union representation. This wording makes it clear that the onus is not on the employee and the employer can be in violation of this article by not informing the union.
WDHP (Workplace Discrimination and Harassment Policy)
So, with this information in hand and from personal experience I can share that in spite of this article being in the Collective Agreement for over 30 months now, situations have come up that clearly indicate that management does not have awareness of, nor understanding of, this important article. And that is a problem compounded by the fact that many HR partners for management do not have a proper awareness of or understanding of this article either.
If they did, there would not have been any need to file several grievances on this article in the past four weeks because every effort would have been made to avoid creating situations where it became necessary to file the grievances (including erring on the side of caution as there is no penalty for being too careful).
That is not a disparaging remark about the staff who provide HR services. It is an expression of the concern that there are an abundance of new (less than 3 years) HR services staff who have not had the time to be properly indoctrinated in the Collective Agreement and the various policies in the OPS before being thrown to the front lines to deal with issues.
At least ten years ago I mentioned to several HR employees, in all seriousness, that I was willing to file a grievance against the employer for understaffing the HR groups causing them to have workload and lack of training time issues which did/do impact the workplace for everyone. They were scared stiff that I might actually do it.
There are several instances where the policies we have are built on direction from the HRTO and in those directions they clearly indicate that things should be timely in regard to the nature of the process and that the employer should ensure that adequate resources are available for the handling of the issues that fall under several code based concerns. What I have shared in the last few paragraphs can be taken as my opinion that there are often times that both the resources are not there and if they are, they are not up to the standard to qualify as “adequate”. That is a huge detriment to all members of the OPS.
Here is a very real and problematic example.
For years the WDHP Advisors were insisting that when there are situations where an employee will be asked questions and the responses to those questions might lead to disciplinary action, the employee can have a “support” person, who is only there to support and not advocate for the employee. The section of the policy that they refer to is:
“Right to Representation
9.14. Complainants, respondents and witnesses have the right to be accompanied by a support person and/or bargaining agent representative where applicable, during complaint resolution processes related to this policy. Employees must actively participate in the process; the support person or bargaining agent representative does not advocate on the employee’s behalf.”
It is ironic that they label the section Right to Representation and yet at the end they say that the bargaining agent representative does not advocate (represent) on the employee’s behalf. This is the section of the policy used by the WDHP advisors to deny OPSEU members (and probably AMAPCEO and others) of their rights.
The simple truth is that no policy can supersede or over-ride a collective agreement right. When you look again at Article 30 as quoted above, when you are being questioned and the answers you give might be used for disciplinary purposes then part “b) to investigate matters which may result in disciplinary action;” takes precedence over the policy.
That is a fundamental of labour law that collective agreement rights cannot be changed by internal policies. That is what the employer has tried to do with the statement made in item 9.14 from the Respectful Workplace Policy.
What else have they done which is patently unfair if they have tried to remove this right employees protected by a collective agreement have? Well consider the following when dealing with internal processes:
In fairness, the employer should recognize that:
- in a lot of such processes those who bring forward a concern can take their time and gather any evidence or items necessary to support the concern as well as line up witnesses if needed before starting a process or during it.
- where needed an investigator has the time they need to review whatever is presented for the concern and have the opportunity to prepare for the phase where they discuss the concern with the employer and then discuss the concern with the impacted employee.
- the employer has all the time they need to take to review material, gather additional information and get input as to how to deal with the concern.
- Therefore in an organization such as the OPS, all of the facts above require that in a Respectful Workplace, anyone who is not yet proven to be guilty of any wrong-doing, (read the letter of suspension with pay) Fairness and Respect should dictate that the person who is being investigated will be treated equitably. They should be provided with the information, allegations and concerns that will be presented to them in any meeting to discuss the matter in question, in advance. And they should absolutely be provided with access to any material in the workplace that may be used to support the position they intend to present. The way things are done now is shameful and grossly unfair in that people are bush-wacked with a meeting with the expectation that they will respond quickly and without the same equitable opportunity as those who participated in the process up to that point.
- the employee will be represented by their bargaining agent representative and not be obliged or directed to act only as a support person.
You have to wonder what the true meaning of a Respectful Workplace can and should be. In my mind it should include “equitable” treatment for all participants in a process and it should include making allowances for situations that are perceived or ought to be perceived, as being unfair. The Preamble of the Collective Agreement covers this.
- (b) a procedure for the prompt and equitable handling of grievances and disputes.
- It is understood that the provisions of these Agreements apply equally to all employees and that the parties are committed to work together on joint initiatives that further support diversity in the workplace.
As we claim to have a workplace that is seeking to have an environment that is inclusive and fair and diverse as well as allowing for equal opportunity, no one should be disadvantaged in any way in any OPS process. It would be a stark contradiction to the Respectful Workplace Policy and the spirit of that document if anyone is disadvantaged in any way as is the scenario indicated above.
That process is what employees who may be respondents in WDHP concerns and in regular workplace investigations have to unfairly endure. It essentially screams that they are considered “guilty” and unfair treatment is to be expected.
These two pieces as well as some past issues shared were front and center recently in a matter that I am representing someone for.
In the next part that follows I am not disclosing any confidential or privileged information. I will not speak to the nature of the concern being addressed and what is shared is done with the permission of the employee who has been impacted in this process. I am merely exposing the unfair and unjust, disrespectful and haphazard application of the process.
In my first letter to you Steve Orsini I pointed out the concern regarding the wording of the letter of “Suspended with Pay” some members get. I shared concerns over the connotation of the word “suspended” back on January 18th and I let you know that I believed that it can lead to unfortunate and harmful consequences. It took only three weeks for my words to prove to be prophetic.
What is most disappointing in this situation is that you Steve Orsini, shared an email on Bell Let’s Talk Day with two links to helpful information regarding things to be aware of in regard to mental health. One of the links had five tips to follow as things that have been identified to have a negative impact in regard to mental health issues/awareness. In the very first one it said:
Words can help, but they can also hurt. Before starting or joining a conversation, think about the words you use; they can make all the difference.”
I think that you sharing that link with those words in that context should be sufficient for you to stand by your commitment to improve the mental health and well-being of OPS members and strive to remove the reference to Suspension/Suspended.
An individual I am helping as their Representative was met by their manager at the entrance to their workplace early on a Friday morning and they were presented with a letter. The letter was one that indicated, in big bold letters, that they were suspended with pay and they were being dismissed from the workplace immediately and their work access/ID badge were confiscated. Within hours that individual was at the hospital being examined for a medical health concern. The letter mentioned that they were going to be investigated, after the findings were in they would be questioned and that it could lead to discipline and dismissal. It is not surprising that they then had an adverse health effect to this news.
Management did not follow the direction of Article 30 and advise the union or the employee of the “meeting” to hand over the letter, tell them they are being sent home and collect their badge. Before any management or HR representative tries to say that there really was no meeting – I respectfully say that is only an excuse for not “Doing the Right Thing”. The intent of the letter was to convey an investigation process had already started (how else could they justify the step they took in sending the employee home?) and that they were now bringing the employee into the process even if only to send them home for awhile. That is clearly spelled out as was “investigation” and “could lead to discipline and dismissal”. 30 b) for sure.
A grievance was prepared and a discussion with the Director was started in both email and in person to see if the employer would accept accountability for denying the employee representation that morning (with a full explanation as above of Article 30) and advising them of the health impact on the employee. What was shared by the Director was that the “investigation” had not started. That was clearly an excuse as they had at that point enough information to warrant sending the employee home. So the grievance was filed.
A request was made to the Director to follow the bullet points shared earlier on the unfairness of their process in order to try to attempt to mitigate another episode that might precipitate the employee needing medical attention once more. The Director denied the request.
About a week after the employee was sent home without being granted article 30 rights, the employer sent the employee a letter letting them know of the time and date of the meeting to meet with the investigator. As the meeting the started I shared with the employer that they once again violated Article 30 by not making any effort to:
“advise the employee and the Union of the time and place for the meeting.”
How is it that when a director and HR have the article clearly spelled out for them and their requirements emphasized that they can so cavalierly violate the same article once again? I only heard excuses from the Director when the second grievance was submitted once it was confirmed that they could not produce any email or other evidence of any effort to meet their obligation to advise the union of the meeting.
Please understand that I am not nit-picking here. Article 30 as I have explained is extremely important and to not take proper steps to ensure that it is not violated a second time is unforgivable. In light of the second violation the union requested that the process be reviewed and that it continue with the employee being guaranteed that there would be no negative consequences to them as a result of any investigative efforts that followed the two violations. Management declined to spare the employee a long drawn out process when it is beyond a shadow of a doubt that the article was breeched twice.
So Steve Orsini, in that first letter to you I also indicated that in so many cases the employer would never admit fault or wrong-doing and that that attitude and approach is detrimental to OPS employees. This is clearly a case that emphasized the concerns I have shared with you to date and there is still more that I can share.
The employee, while not being aware of what the matter of concern was about was given direction not to tell anyone about it. Not to say anything. By taking such steps the employer is cutting-off an employee, at a very vulnerable time, from their support network. The employer is exponentially increasing the employee’s stress and anxiety. The net effect is to put the individual in emotional solitary confinement. Is it any wonder that they had to seek medical attention?
The situation would have been a whole lot better if the management had followed the clear direction of Article 30, even as a precaution. I can see no possible negative impact by allowing someone who will get unwelcome and distressing news from having a representative with them.
Am I trying to promote change and modifications to current policies and procedures? Of course! Especially when those policies and procedures are inherently unfair and unreasonable. I would hope that would be a goal that we can all share.
Am I trying to show that there are real issues with application of Article 30 in the workplace and the fact that management, even when support by the entire HR resource group, cannot get it right on their second effort? Yes, because with it being a management responsibility to ensure it is followed correctly, the ultimate responsibility lies with you at the top Steve Orsini. You ultimately make the decisions that impact training, staffing, and enforcement of the requirements of management in dealing with the Collective Agreement.
Again, I am encouraging everyone who knows of or has experienced issues similar to what I have touched on to share their stories and express their views. Comment on what I shared (good or bad as I want the conversation to start and take off across the whole OPS) and please make every effort to protect your rights and entitlements and if you have any concerns regarding reprisal for doing so, I offer the following for you to share whenever you put forward a concern.
I am bringing forward these concerns as I believe that I have been negatively impacted and my rights have been violated. I am doing this even though I fear that there may be reprisal for doing so. Should there be any actions against me that I believe are a result of putting forward my concerns, I will avail myself of representation to have those situations addressed as well.
Disappointed not to have any reply, yet still respectfully,
Local President and MERC Co-Chair, MOHLTC