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HomeMy WebLinkAbout1986-1390.Van't Hullenaar.89-05-22CPMMISSION DE REGLEMENT DES GRIEFS 1390/86 IN TEE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Between: Before: APPEARING FOR TEE GRIEVOR: APPEARING FOR THE EHPLOYER: ERARING: Before THE GRIBVANCE SETTLEMENT BOARD OPSEU (Karl Van't Hullenaar) Grievor - and - The Crown in Right of Ontario (Ministry of Correctional Services ) Employer irperson E.J. Ratushny - Vice-Cha F. Taylor - Member D.A. Wallace - member H.M. Sharpe Counsel Gowling & Henderson Barristers & Solicitors A. P. Tarasuk Counsel ,The Institute Barristers & Solicitors December 4, 1987 DECISION In 1981, the Grievor was employed as a Correctional Officer 3 at the Hamilton-Wentworth Detention Centre. On July 29, 1981, he was dismissed on grounds that included the use of force against inmates without justification. On January 20th, 1982, a decision of the Grievance Settlement Board held that the penalty of dismissal was excessive and that he should be employed again in a suitable position with the Ministry of Correctional Services or another Ministry. The decision made it clear that, pursuant to article 19 (4) of the Crown Employees Collective Bargaining Act, Mr. Van't Hullenaar was not to be reinstated "in any position which would involve direct responsibility for or contact with residents, i.e. inmates, in the institution". (G.s.B. 555/81).. Since June of 1982, he has been employed as a Motor Vehicle Operator 1 at the Maplehurst Correctional Centre. In 1986, he applied for the position of Correctional Officer 3 at the Toronto Jail. The Area Personnel Administrator, Mary Capobianco; responded to this application by letter dated November 5, 1986, which stated: Unfortunately, we cannot consider YOU for this particular position. A review of your personal records indicate [sic] that you would not qualify for. consideration for correctional officer positions based on the G.S.B. award 555/81. Should you wish to discuss this decision, please contact the undersigned. The grievance of Mr. Van't Hullenaar dated November 12, 1986, contains the following "Statement of Grievance": Per correspondence, from Mary Capobiando, dated November 5, 1986 in which I was denied consideration as a candidate for Competition Cl-1079-86, due to G.S.B. 555/81. The issue in this case is straightforward but difficult. - 2 - It arises out of the interpretation of the following provisions of the Ontario Crown Employees Collective Bargaining Act: 19 (3) Where the Grievance Settlement Board determines that a disciplinary penalty or dismissal of an employee is excessive, it may substitute such other penalty for the discipline or dismissal as it considers just and reasonable in all the cslbumstances. I:; Wherer in exercising its authority under subsection the Grievance Settlement Board finds that an employee who works in a facility, (a) has applied force to a resident in that facility, except the minimum force necessary for self-defence or the defence of another person or necessary to restrain the resident; or (b) has sexually molested a resident in the facility, the Grievance Settlement Board shall not provide for the employment of the employee in a position that involves direct responsibility for or that provides an opportunity for contact with residents in a facility, but the Board may provide for the employment of the employee in another substanLally equivalent position. The issue is, simply, the scope of the proscription in sub-section (4). When the Act precludes employment involving direct contact with residents, is it speaking only to the specific panel dealing with the disciplinary penalty or dismissal referred to under sub-section (3)? Or does that proscription extend to all future panels of the Grievance Settlement Board even where future grievances do not involve discipline or dismissal? Put another way, does the application of sub-section (4) in a particular situation, constitute a conclusive bar to the employee in question ever being considered for employment involving direct contact with residents? - 3 - The issue has not been easy for this panel to resolve. Following the hearing of the grievance, the panel engaged in discussion in executive session and in correspondence. We became concerned that the specific issue of the interpretation of sub-sections 19 (3) and (4) was not fully addressed during oral argument and, in the interests of fairness, further submissions in writing were invited on this issue. The last submission was received in mid-December, 1988. The argument on behalf of the Grievor is that the present grievance is limited to Mr. Van't Hullenaar's rights under Article 4 of the Collective Agreement. Article 4 requires the Ministry to entertain and fairly to consider all applicants who apply to fill a vacant position in response to a posting of the position. All applicants must be considered on their merits. The Ministry has refused to consider Mr. Van't Hullenaar's application. The Grievor fully conceded that past misconduct and, indeed, the earlier decision of this Board, could be taken into account in weighing the merits of his application but the Employer could not refuse. to consider such application at all. It was stressed that the present grievance does not involve a disciplinary penalty or dismissal but only the Grievor's rights under Article 4 of the Collective Agreement. In contrast to the present grievance, the Grievor argues, subsection 19 (3) focuses upon the Board's jurisdiction in a particular grievance involving discipline or dismissal. The reference to "such other penalty for the discipline or dismissal" makes it clear that this subsection deals only with a particular disciplinary act of the employer that is grieved before the Board. Section 19 (4) is merely a restriction upon the remedial authority of a panel of the Board which is acting pursuant to subsection (3). That is evident from the opening words of subsection (4) which are: - 4 - "Where, in exercising its authority under Subsection (3)...". Thus the proscription in Subsection (4) does not extend beyond the decision of a particular panel acting under subsection (3). As a result, it is argued, section 19 (4) has no application to our par&cl since the matter before us does not involve an exercise of authority under subsection (3). Rather, we are faced with the complaint that, in a job competition, the Employer has refused to consider the qualifications and ability of the Grievor to perform the required duties. It might well be reasonable for the Employer to consider Mr. Van't Hullenaar's past misconduct to be determinative rn denying him the position in question. But the Employer must give his application fair consideration taking into account all of the relevant circumstances. In contrast, the Employer took the position that reference also must be made tb section 19 (1) which provides that where the Board decides a matter I'... its decision is final and binding upon the parties and the employees covered by the agreement". Thus once the Board decided to reinstate Mr. Van't Hullenaar to another position in 1982, the matter was addressed with finality. Another panel of the Board is functus to deal the issue since the Board's decisions are intended to provide finality. The Grievor does not argue against the finality of the earlier Board decision in relation to that grievance. The issue is whether the result in that earlier grievance extends to future grievances based on different circumstances and different grounds. Nor does this approach address the specific wording of subsections 19 (3) and (4) which on their face appear to restrict the proscription in - 5 - subsection (4) to the specific situation described in subsection (3). However, the Employer also approached the matter from another perspective in response to our invitation for subm.lssions as to the applicability of the Blake decision (GSB 1276/87). There, Chairman Shime spoke of various panels of the Board constituting one entity and stressed that one panel does not have a mandate to overrule another panel or to sit on appeal of an earlier panel. The Employer in the present case submitted that the Grievor is, essentially, attempting to review the earlier decision of this Board. Thus once a panel has acted pursuant to section 19 (41, the Grievance Settlement Board has spoken and future panels are bound by that result. We are of the view that the submissions of the Grievor must prevail. Essentially, this is an issue of statutory interpretation and the wording 'of section 19 (4) restricts its application to the situation described in section 19 (3). That situation is a grievance where a disciplinary penalty or dismissal is challenged as being excessive. The situation in the present grievance is different so that section 19 (4) is not applicable. Since the situation here and in the earlier grievance are different, the observations of Chairman Shime in the Blake case are not applicable. We fully recognize the potential anomalies which could flow from this interpretation of section 19. For example, an employee could be disciplined and assigned to a position not involving "contact with residents in a facility" pursuant to section 19 (4). The next day the employee COULU apply for just such a position and would have to be considered together with the other applicants. However we do not view this as a practical problem. The earlier misconduct and consequent Board decision will be considered - 6 - and will put the employee in question at a disadvantage, in relation to other candidates. Unless the misconduct is trivial in nature it will be difficult for the employee to overcome in a subsequent competition. The employer is entitled to consider it as an indication that the employee is not suitable for such a position. In other words, such situations will be met by the exercise of appropriate discretion on the part of management in assessing candidates taking into account all of the circumstances including events subsequent to the earlier event. For these reasons, the grievance is allowed and the Grievor's application must be considered on its merits in competition with the successful applicant. DATED at Ottawa this 2nd day of MAY, 1989. “1 Dissent” DUNCAN ‘WALLACE, Member DISSENT I must respectfully dissent based on the following points; 1. The effect of a previous ruling by The Grievance Settlement Board dealing with the same grievor and related to the issues in this case. 2. The interpretation of The Crown Employees Collective Bargaining Act. Dealing with #l, the background and the decision of The Grievance Settlement Board is outlined in the first paragraph of the present award. This award dated January 1982 was final and binding. It was not challenged by the Union. Allowing the grievor now to be free to apply for a competition for a Correctional Officer's position, negates the previous ruling of The Grievance Settlement Board, wherein it was clearly stated the grievor must not be employed in a facility where contact with the inmates would be involved. In my view, the previous ruling of The Grievance Settlement Board (555/81) acts as a jurisdictional barrier in allowing this panel to rule that the grievor's application for a Correction Officer's position must be considered on its merits in a competition. This will require the facts in part put before The Grievance Settlement Board chaired by Mr. Jolliffe to be argued again before other oanels of The Grievance Settlement Board, as this panel does not consider it to be final or binding: The decisi~on of the .panel chaired by Mr. Jolliffe is a decision of The Grievance Settlement Board.' As stated in the Bl&g case "The Act does not give one panel the right to overrule another panel or to sit on appeal on the decisions of an earlier panel. Also, given the volume of cases that are currently administered by this Board, the continuous attempts to persuade one panel that another panel was in error only encourages a multiplicity of proceedings and the arbitrator shopping which in turn creates undue administrative difficulties in handling the case load." Dealing with point #2, The Crown Employees Collective Bargaining Act does not allow The Grievance Settlement Board any power to amend, alter or enlarge on any section of the "Act". This is pertinent in reading Section 19, sub-sections 3 and 4. I do not find any ambiguity in reading the above noted sections. This being my view, The Grievance Settlement Board cannot lead the grievor to any possible belief that he can be reinstated as a Correctional Officer under any circumstances. . . ../2 - 2 - Not only is Section 19, sub-sections 3 and 4 very clear, they were properly applied to the grievor by the panel chaired by Mr. Jolliffe. Section 19, sub-section 6 of The Crown Employees Collective Bargaining Act clearly stipulates by my reading, the parties or an employee must comply with a decision of The Grievance Settlement Board. The Grievance Settlement Board in January 1982 made its decision that the grievor must not be emoloved in a facility where contact with the inmates would be involved. This being the case both parties must adhere to it and any challenge to this decision should be set aside.