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HomeMy WebLinkAbout1986-1574.Meyer.88-02-09SETTLEMENT Between: Before: J. Forbes-Roberts J. McManus L. Foreman For the Grievor: Barbara Rutherford COUnSel Gowling and Henderson Barristers and Solicitors For the Employer: J. F. Benedict Manager Staff Relations & Compensation Ministry oft Correcti&al Services . Hearing: September 3, 1987 THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD OPSEU (J. Meyer) . and The Crown in Right of Ontario (Ministry of Correctional Services) Vice Chai’rman Member Member Grievor Employer 1 DECISION The grievor was employed on a part time basis as a casual correctional officer ("C.O.I.U ) at the Barrie Jail '("the Jail"). As such she was part of the unclassified staff. The grievor started at the Jail on July 8, 1985 and her employment was continued in a series of contracts ranging in length from three (3) to six (6) months:The Jast'contract was for the term October 1, 1986 to March 31, 1987:However, effective December terminated by the 7, 1986 the employment relationship was employer. The grievor alleges "prejudic ial termination",~ meaning dismissal without cause. The employer maintains that this was a termination within the meaning of article 3.'12 of the collective agreement. Article 3.12 states: TERMINATION OF EMPLOYMENT 3.12 Employment may be terminated by the Employer at any time with one (1) week's notice, or pay in lieu thereof. There isno dispute that the notice. grievor was given one (1) week's In the alternative the employer takes the position that if ~the grievor was dism ,issed, it was for just ,cauGe. 2 The employer's counsel made a preliminary objection, _ arguing that because this was a "termination" versus a "dismissal" the Board lacked jurisdiction to hear the matter. Union counsel argued that at the very least the Board had jurisdiction to characterise the nature of the employment severance. We agree with the union's position. It is the Board's obligation to determine if there was a termination or a dismissal. If the former is the case, the matter goes no further. If on the evidence there was'a dismissal, then we must determine,if there was just cause. The Barrie Jail is a maximum security institution containing approximately 110 male and 12 female inmates. There are a number of regular Correctional Officers I and I.1 wha.'are charged with the inmates' care and control, supervision, out of institution travel and inquiries. In addition, the C.O.'s report unusual occurences and perform searches of the inmates' living areas. The institution is staffed on the basis of eight (8) hour rotational shifts. The casual or unclassified staff perform aimost the same functions. The only substantial modification in the duties between the regular and casual staff is that casual staff do not do out of institution escorting. The casuals are "scheduled" to cover regular staff's vacations, statutory holidays, and sudden illnesses or unscheduled absences. As a Obviously in a maximum security jail there are set minimum staffing requirements. While the casual staff occasionally have shifts scheduled in advance, in the event of an unforeseen absence by a, regular staff member, they are expected to be available on short notice. The Officer in charge of a shift has a list of casuals whom he may call on extremely short notice, to. report in. A very important function of the casuals is to obviate the need of overtime amongst the regular staff, thereby contra ling costs. 3 result they may be called weeks or hours in advance of their reporting time. Another salient point is that.the institution is restricted to employing eighteen (18) casual C.O.'s I. The employer’s witnesses were Mr. Edward Francis (Deputy Superintendent) and Mr. Leonard Broadbent (Staff Training Officer). The union called the grievor and Mr. Murray Laird, a former employee who while with the institutionhad some responsibility for scheduling. There was no dispute that v- a vis job performance, __ the grievor was above reproach. She was a competent and valued employee with no disciplinary record. There are no grounds lipon whic‘n tobase a'dismissal for just cause. We therefore dismiss the employer's alternative argument. 4 The only issue before this Board is the appropriate characterization of the employment severance. Was it a dismissal or a termination? The letter of severance is appended to this decision as Appendix A. Distilled the employer's reason for severing the relationship was the grievor's perceived unavailability for work. The relevant facts are as follows: The grievor worked approximately'three ( 3) shifts per week, predominantly on an "on call" basis. Up unti 1 September 2, 1986 the Jail was her only place of employment. Effective that date the grievor secured full time employment at the R.V.R. Detoxification Centre ("the Detox Centre"). Approximately August~l8; 1986 she was offered this job and she went to speak to Mr. Broadbent. She explained to him that initially there would be an orientation period, 8:30 a.m. to 4:30 p.m./ Mondays to Fridays inclusive. She would therefore, temporarily be free only for weekend work at the Jail. Broadbent did not mention that this would be a problem, although as the grievor volunteered in evidence she "knew that ‘it could not go'on forever". On August 19, 1986 the grievor spoke to Nr. "amel, the Assistant Superintendent. She explained about the new job, indicated that .it too would be-shift work and expressed her interest in staying on at the Jail. Hamcl initially resisted, stating that too may casuals were restricting-their. 5 avaiiability. He did however, agree to raise the matter with the Jail Superintendent, Mr.. D. McFarlane. McFarlane approved the arrangement. On August 21, 1986'the grievor hand delivered to McFarlane a ietter outlining her temporarily decreased availability, and the reason. 8y her own evidence, his comment upon receipt was "At this point there's no problem." On September 2, 1986 the grievor commenced her orientation programme at the Detox. Centre. Towards the end of September Broadbent became concerned about the amount of overtime being worked by the regular staff, and more importantly, about the costs the institution was incuring. As indicated earlier, the individuals meant to.prevent the need for regular staffs' overtime is the casual employees. Consequently, Mr. Broadbent issued to each casual empioyee the document, which is Appendix B hereto. On September 29, in response to that notice, the grievor wrote to McFarlane. She indicated that orientation at the Detox. Centre would be over November 1, and she believed at the time here services would be more available to the Jail. On October 1, 1986 the Jail renewed the grievor's contract far a further six (6) months. r 6 Throughout the period from,September 2, 1986 to early November Mr. Broadbent asked several times for the grievor'.s schedule. At all times he was toid "weekends only". At no time was he provided with a post orientation schedule of availability for the grievor. The grievor's evidence is that on November 25, 1986 she did indeed provide her advance schedule of available dates to Mr. Laird. While he did have some responsibility for short term scheduling, there is no evidence that Mr. Broadbent ever recieved her schedule. In the third week of November Mr. Francis performed a comparative hours audit of the casual employees. The results showed that the grievor and one other of the eighteen (18) casual employees appeared to be comparatively under available for work at the Jail. The issue was discussed by the upper management, and the decision was taken to sever the employment relationship with both employees. We find that the decision was based solely on the employees' perceived unavailability for sufficient shif~ts to meet the institutions requirements. The grievor was given one (1) week's notice as per her contract of employment and article 3.12 of the collective agreement Against the factual backdrop, was the grievor terminated or dismissed? 7 We find that the grievor was terminated within the meaning of article 3.12 of the collective agreement. As stated by Professor Samuels in re: Church (G.S.B. 761/83) "The issue is.. .whether or not the employer has honestly concluded that the grievor lacks the proper attitude or camacity for satisfactory performance of the job." (page 6, emphasis added) The grievor testified that her permanent schedule at the Detox. Centre only called for fourteen (14) days of work per month, and thus her availability would be no less than other casuals with full time availability elsewhere, We do not question this. However, at the time .the employer took the decision to terminate, it was not in possession of that information. We find that at the time the employer'made It's decision it looked..solely at the Jail's staffing needs and the financial constraints faced by the institution. There was no element of discipline involved in the termination. Counsel for the union argued that because the employer renewed the grievor's contract with full knowledge of her full time employment elsewhere, it cannot later be heard to complain of her reduced availability. We rej~ect that argument for the following reason. isely the type of circumstance contemplated Surely this is prec by article 3.12. A contract employee is not guaranteed employment for the term of the contract. In the event a situation arises'in which he or she cannot fulfil1 ther terms of that contract, the employer has the right to terminate. As put by Professor Samuels, where an individual loses the "capacity for satisfactory performance", the employer may invoke article 3.12. "Capacity" encompasses the concept of availability. For the above noted reasons the grievance is hereby dismissed In reaching our decision we have considered the evidenced, counsels' submissions and the following authorities: ye: Church (G.S.B. 761/83), re: Lee G.S.B. 290/86), re: __ Mousseau (G.S.B. 1182/85), re: Turner'(G.S.B. 489/84), re: Miller & MacPhail (G.S.B. 531/82 & 532/82), re: Miller & MacPhail (G.S.B. 530/82 & 531/82), re: Ambrey (G.S.B. 4'29/84), re: Stewart (G.S.B. 202/80), re: Sam (G.S.B. 1282/84), and re: -- Gavis (G.S.B. 210/80) Dated at Toronto, Ontario, this 9th day of February,l988. F;;;e2c-Chairman J. McManus - Member .fti / -L&w noreman - Member ..- SD Ministry of , Correctional SeWiCeS "APPENDIX A" O+iO %hnber 25, 1986 ronl Mr. D.M. McFarlane, Superintendent Address/City/Postal Code Barr&? Jail Thank you for informing us regarding your employment elsewhere and providing us with your schedule outlining your availability. Unfdrtunately, .we must inform you that your availability no longer meets the needs of the Ins_ftz.~.t_llpn in terms of schedti%?j?& illness and'~cacation _w- etc. tiiisre often required to be filled on shcrt notice. - Your unclassified contract with the Barrie Jail will therefore terminate on Sunday, December 7, 1966. This is not to be construed as a reflection of your past work performance and interest which have been good. Best wishes for all your fumre endeavours and if you require any employment references, please do not hesitate to contact the undersigned. Yours truly, / DM:bcr CC: Personnel *- Ontario P.O. Box 224 Ban!% ontatto L4M 412 Pho& 703/73&3933 ‘I- yl~s -4sL--7+3 : September 23, 1986 TO ALL BARRIE JAIL CASUAL CORRECTIONAL OFFICERS: It has come to our attention that many of our casuals are unavailable for work for long periods of time. As you can well appreciate, this situation creates many problems for the institution in terms of scheduling. Over the next three month&all casual correctional officers ~111 be reviewed to determine the number of hours actually worked during each pay period; and if it is found that your unavailability has added to the cost-of managing the institution, this fact will be taken into consideration when the time comes to renew your contraa If you have information which would help us to obtain a better undepstanding of your situation, please do not hesitate to contact the Assistant Superintendent or the Sta~ff Training 'Officer. 0M:ph cc: Mr. E. Francis, Deputy Superintendent ,. Mr. D. Hamel, Assistant Superintendent Mr. L. Broadbent, Staff Training Officer -