Loading...
HomeMy WebLinkAbout1987-1666.Wall.88-06-06 ONTARIO CROWN EMPLOYEES GRIEVANCE SETTLEMENT BOARD 180 DLoVAS STREET WEST. TORONTO, ONTARIO, MSG IZ8-SUITE 2100 TELEPHONE, 4161598-0688 16�6/ts7 IN THr: VIATT.ER Uri A14 ARBITRATION Under Trig CRUwi,4 r;MPLUYEES COLLECTIVE BARGAINING ACT isefore Between : _------ UPSEU (wall ) Grievor and The Crown in Rignt of Ontario (.iinistcy of Transportation '& Communication) Lmpioyer Before : R .J . Roberts Vice-Cnairman -- — J . mcnanus mem,oer L . J . Ursini member eor the Grievor : 4 . Sharpe --__ — ------- Counsel Gowiing & Henderson barristers & Solicitors 'eur the zmpioyer : C . Peterson ""----- Counsel Winkler , Filion And Wakely Barristers and Solicitors '2enruary Z5 , l9t5d DECISION This is a discipline case . The grievor was given a written reprimand for his behavior in a confrontation with a member of the public . For reasons which follow, we :codify the discipline imposed upon the grievor to the extent of directing that the written reprimand . and all reference thereto , be removed fro:z his file after two years have elapsed from the date of discipline . The evidence indicated that the grievor was a relatively senior Enforcement officer with the Highway Carriers Division of the I-linistry. At the ti :e of the hearing, he had been with the Mihistry for some i_5 years and prior to that , spent 4 1/2 years with t ►e M_nistry of the Environment . The grievor testified than in, all that ti_-e . he had not received any prior discipline . The confrontation in which the grievor was involved arose out of a mistake that he and one of his colleagues , Mr . Fels . made while in town on one of their court dates , January 24 , 1937 . It seems that the grievor and Mr . Reis decided to have lunch that day at the V. I . P . Restaurant in the Hurontario Plaza . By mistake , they parked their M.T.C . vehicles , which in several respects resemble police cruisers , in parking spaces reserved for handicapped patrons . As a result , an elderly wheelchair-bound woman who needed to visit the drug store in the plaza was forced to park her car in a regular space which was a considerable distance away from the plaza . i I 2 As she was struggling with her wheelchair , another customer , Mr . Park, parked his car beside hers . He offered to assist her with her wheelchair. According to Mr . Park, the elderly woman was agitated. She said she would not have had to park there if the two police cruisers were not in the handicapped spaces . Mr . Park, who' was a Private Investigator, remarked to her that they were not police cruisers but M.T.C . vehicles . As he was pushing her to the drug store , she said that she only wished that she had a camera. Mr . Park replied that he had one in his car and would be happy to take pictures for her . After the elderly woman entered the drug store , Mr . Park got his camera and walked over in front of the two M.T. C. vehicles . As he was focusing his camera , the grievor and Mr . Kels returned from the restaurant. When they saw Mr . Park with his camera and then realized what they had :mistakenly done , they felt very embarrassed. Both approached Mr . Park to apologize . There was considerable divergence in the testimony as to what happened next. But it can be inferred that Mr . Park was not particularly receptive . It seems likely that he told Mr . Kels and the grievor that he would see them in court . He did not stop preparing to take his pictures . In fact , he sought to photograph tor . Kels and the grievor as they opened the doors of their vehicles to get in and drive away . 3 When Mr . Kels saw Mr . Park aim the camera in his direction , Mr. Kels was chagrined, but he remained cairn and did nothing in response . The grievor , however , reacted . Mr . Park testified that the grievor said "You take -my picture and I will take that camera and sticx"'Lt right up your ass . " Then, as Mr . Park raised the camera and took the grievor ' s picture , the grievor slammed his car door shut and rushed over to Mr . Park with his righ,. arm raised and his fist clenched. He did not stop until he and Mr . Park were nose-to-nose . At that point , Mr . Park said, he thought he was about to be assaulted and lowered the camera to the ground so it would not be damaged . The grievor then lowered his arms to his side and asked Mr . Parr: if he was a policeman or a by-law en=o:cer;ent officer . Mr . Park stated that he said no . that he was just a concerned citizen. The grievor then replied, "You ' re an asshole . " He Cher. abruptly turned , called Mr . Park an asshole again, got into his car and drove away. r In the initial investigation and the grievance procedure the grievor did not admit that he had said anything to Mr . Park about sticking the camera "up his ass" . however , at the hearing he did. The grievor said that when he noticed Mr . Park taking pictures Df him as he entered his car , he ,calked toward Mr . Park in a normal fashion. He did not rush . he said , because he had 4 artery problems in his 'legs . When he reached Mr . Par', , the grievor testified , he stood very close to him. face-to-face , and said, "Look , take all the pictures you want of the car but I would appreciate it if you did not take any of me . " He asked Mr . Park whether he was a police officer or a by-law enforcement officer and suggested that if Mr . Park was , he should give him a ticket . According to the grievor , Mr . Park replied, "You will find out in court who I am. " In response to the grievcr ' s request that he take no more pictures of hi:^, the grievor said, Mr . Park replied , "So what , I will take all the pictures I wart . What are you going to do about it" It was at this point , the grievor testified, that he replied that he =could take the camera and stick it up Mr . Park ' s ass . The grievor then said that he turned and walked back to his car and as he did so he heard Mr . Park yell after him, "That ' s assault. " Then he replied that Mr. Park should do what he had to do . The grievor further testified that both during and after this entire episode , he felt threatened and embarrassed. He said he felt threatened because Mr . Park seemed bent on taking the matter to court. If he did so , the grievor said , it could reflect adversely upon his and the Ministry ' s reputation. He was a uniformed officer and the M.T.C . vehicles were in the nature of police cruisers , clearly denoting the grievor and Mr . Kels as officers charged with the enforcement of laws in the course of their duties . If the Ministry was caused public embarrassment by 5 virtue of the publication of the photographs . the grievor felt , the problem could become magnified and lead to a blot upon his employment record. At the same time , the grievor testified, he "felt like a damn fool" when he made the statement to Mr. Park about the camera. He said as soon as he said it , he could have bitten his tongue off . The grievor agreed on cross-examination that it was not acceptable for someone in his position to say things like that to a member of the public. Me agree . No :natter which version of the confrontation is accepted -- Mr . Park ' s or the grievor ' s -- we are left with the fact that a uniformed officer of the Ministry approached a member of the public and , standing nose-to-nose with him, warned hir. that if he took another picture of him, he would take the man' s camera and stick it up his ass . In context, this remark was not only vulgar but threatening. The grievor ' s behaviour fell far below that to be expected of an uniformed officer of the Ministry even when faced with more serious provocation then that which might have been provided by Mr. Park . The Board refers in particular to the testimony of Mr . E . Bartucci , the Manager for the grievor ' s District , that in the course of his duties , the grievor is expected , inter alia , to stop and inspect vehicles , enforce the Highway Traffic Act on behalf of the Crown and issue summons and lay charges . There is no doubt that in the course of performing these duties the grievor would encounter considerable abuse from some members of the pubic when stopped or detained. It would be incumbent upon the grievor and other enforcement officers to respond in a dignified manner to such provocations , with the discipline and professionalism expected of uniformed officers. Accordingly , the grievor ' s behavior during his confrontation with Mr. Park warranted a disciplinary response. Mr. Bartucci testified that considering the nature of the incident in the light of the grievor ' s clean past record and long tenure , he decided to give the grievor a written reprimand. According to the scale used in the Ministry, this was the mildest form of discipline that could be issued. Verbal and written warnings were considered to be pre--disciplinary in nature and did not form part of an employee ' s disciplinary record. Discipline began with a letter of reprimand, progressing from there to suspension and ultimately, discharge . This panel found the Ministry scheme of non-disciplinary verbal and written warnings , followed by formal discipline , to be relatively unique . Moreover , it made it impossible to reduce the disciplinary penalty imposed upon the grievor without doing unwarranted damage to the scheme. If the written reprimand was reduced to, e .g. , the level of a verbal warning , it would be i 7 tantamount to suggesting that the actions of the grievor did not warrant any discipline , and we have already found otherwise. We do , however, make one direction to the Ministry. It was suggested at the hearing that letters of reprimand are not tine- limited. They remain in an employee ' s personnel file throughout the remainder of his or her tenure with the government. It seems to the Board that the retention of the grievor ' s letter of reprimand in his personnel file for this length of time would not be commensurate with the nature of his misconduct . As far as the evidence disclosed, the grievor ' s misconduct during his confrontation with Mr. Park constituted a momentary aberration in an otherwise exemplary record of service . it should not be allowed to blot that record forever . Accordingly, we direct that after the passage of two years from the date of issue of the letter of reprimand, it shall be removed from the grievor ' s personnel file and all reference thereto shall be deleted. It is only in this respect that the grievance is allowed in part . ;n every other respect, the disciplinary response of the Ministry is upheld. . DATED at London, Ontario , this 6th day of June 1988 . R. J . Ro 4 , Vice-Chairman i i , / � u J . c an s , iKember E. Orsini , Member