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HomeMy WebLinkAbout1987-2395.Tucker.92-04-15ON%4WJ EMPLOY~S DE LA CO”,wNNE CROWNEMPLOYEES DEL’ONTARIO GRIEVANCE CQMMISSION DE SElTLEMENT REGLEMENT BOARD DES GRIEFS IN TBE RATTER OF AN ARBITRATION Under THE CROWN ENPLOYEES COLLECTIVE BARGAINING ACT Before THE QRIEVANCE SETTLRMERT BOARD BETWEEN OPSEU.(Tucker) Gri,evor - and - The Crown in Right of Ontario (Ministry of Community and Social Services) Employer BEFORE: B. Fisher T. Browes-Bugden D. Montrose Vice-Chairperson Member Member FOR THE GRIEVOR FOR TEE J. Smith EMPLOYER Counsel HEARING M. Ruby Counsel Gowling, Strathy h Henderson Barristers h Solicitors Legal Services Branch Ministry of Community and Social Services June 21, 1991 This is a discipline case. The facts are not really in dispute and can be fairly stated as folloirs: 1. The Grievor has worked as a Residental Counsellor 3 at Oxford Regional Centre for 20 years. 2. On January 9, 1987, the Grievor physically assaulted a resident by giving her a backhand slap to the head. 3. As a result of this assault the Grievor was transferred to a different position, that of Motor Vehicle Operator and given a 10 day suspension. 4. The Grievor filed a grievance over the 10 day suspension but not the transfer to the new position. 5. Cn September 11, 1989 a panel of the GSB, chaired by R.J. Roberts, dismissed the grievance. In the course of the reasons, the Board made the following ObSeNatiOnS. "In all, the Grievor was suspended with pay for sixty days. Thereafter, he served a ten- day unpaid suspension and when he returned to work, he was assigned to drive the food truck around the hospital grounds. It was agreed between the parties that the Grievor preferred this new assignment and did not wish to return to his old duties in the event that his grievance was successful. 2 Before leaving the matter, however, the Board wishes to state that on our assessment of the evidence, it seemed that this incident constituted nothing more than a momentary lapse in the conduct of the Grievor. The Grievor impressed us as a long-term Residental Counsellor with an impeccable work record. Moreover, he seemed to us to have a genuine fondness for the residents in his charge. We are pleased that he is satisfied with his current position at the Centre, however, we wish to add that we certainly would not have any reservations about the matter if should seek to return to a position as a Residential Counsellor." 6. Upon his transfer to the position of Motor Vehicle Operator his duties were restricted to shift rotations which were intended to have little or no direct resident contact. 7. The applicable Position Specification is attached. 8. Starting in October 1989, the Grievor requested that Management allow him to perform all of the applicable shift rotations. This request was denied on the grounds that to,do so would involve more direct resident contact. 9. It is the intention of Management to keep the Grievor on these restricted shifts until at least 1996. 10. Prior to the incident giving rise to the suspension and transfer,' the Grievor had an impeccable work record. Since the 3 incident, there have been no disciplinary or other work related problems involving the Grievor. 11. In his oral testimony the Grievor spoke of the degree of resident contact he presently has on the route which he presently has. This route involves the delivery of food, laundry and mail to various buildings at the Centre. In the course of delivering food he has contact with residents, especially those in Cottage 6. When he gets out of the truck, residents are present. He passes 6-12 residents about 2 times per day. The residents sometimes help him with his duties in transporting food however they are not assigned this as a specific work task, rather it seems to be on an ad-hoc volunteer basis. On the laundry route, residents also help him on the same basis. No residental counsellors are present during these times. Similarly on the mail route, there are always residents present. 12. The Grievor's understanding of the other routes, in which he does participate, involves driving a bus full of residents and residental counsellors both in town and out of town. He understands that the bus driver is rarely alone with residents. The Union's position is that the Employer's refusal to allow 4 the Grievor to work all of 'the shift rotations involves and exercise of disciplinary power in an excessive manner. The Employer agrees that it is exercising a discipline power as a result of the original assault and submits that Section 19 (4) of the Crown Employees Collective Bargaining Act deprives this Board of the jurisdiction to order the Grievor to be put on all of the routes, whether or not the Board feels the discipline is excessive. It is useful to set out Section 19(3) and (4) of the CECBA. 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 circumstances. 19 (4) 'Where, in exercising its authority under subsection (3), the Grievance Settlement Board finds that an employee who works in a facility, (4 has applied force to a resident in the facility, except the minimum force necessary for self-defence or the defence of another person or necessary to restrain the resident: (b) g:s 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 orthatprovides an opportunity for contact with residents in a facility, but the Board may provide for the employment of the employee in another substantially equivalent position. R.S.O. 1980, c. 108, s. 19(1-4). The Union is clearly asking us to exercise our remedial power under Section 19 (3). There is no question that we are not examining whether some discipline is warranted, as the Roberts 5 panel already found that he did assault the resident. At the time the Grievor did not choose to grieve the transfer to the Motor Vehicle Operator's position, even though he knew at that time that he was not going to be put on all of the routes. In effect the Union is now asking us to review a disciplinary measure given out by the Employer in 1987 but not grieved until January 10, 1991. we raise this issue not to say that the grievance is untimely, as the Employer did not take this position, but rather to emphasise that we in effect are being asked to review the Employer's disciplinary step in transferring the Grievor and restricting his routes in the same manner as if the original Roberts panel had the same issue before them. However, where we are deciding a case of excessive discipline, we are restricted in the exercise of our discretion by virtue of Section 19(4). This section clearly prevents us from ordering the employer to place the Grievor in a position that involves direct responsibility for residents or that provides an opportunity for contact with residents. This is not a case like Van't Hum (1390/66 Ratushny) in which the Board ordered the Employer to consider the Grievor's application to a posting for a position involving inmate contact (a Correctional Officer) even though the Grievor had previously been reinstated to a non-inmate contact position pursuant to a Section - 6 19(4) order. In that case the Board made a clear distinction between cases involving the discretion to amend discipline as opposed to cases involving other non-disciplinary matters,. These following passages from that decision illustrate this point. "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 wsuch 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: 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)'. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . We are of theview 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. This 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." The Union also argues that the evidence clearly shows that the Grievor already has some resident contact in his work and argued 7 that to allow him to work all the shifts would not involve any more resident contact than he has now, indeed it may involve less such contact. Even if this were so, this does not allow the Board to order the Employer to do something which would have the effect of requiring the Employer to employ the Grievor in a position that involves any responsibility for residents or even any opportunity for resident contact. Section 19(4) does not restrict management rights to put the Grievor in a position which may involve some resident contact, but it does prevent the Board from ordering the Employer to do so. Similarly the Union's argument that the penalty imposed by the Employer is irrational, arbitrary and discriminatory is of no assistance as even if the Board agreed with this submission, Section 19(4) prevents the Board from granting the remedy the Grievor desires as that would involve ordering the employer to place the Grievor in a position which would provide an opportunity for contact with residents in a facility. The simple reality of Section 19(4) of CECBA is that the Legislature in his wisdom has decided that the GSB's powers must be limited in this particular area. There is no temporal restriction in the section, therefore as long as the originating reason for the i 8 discipline flows from an act of excessive force by a Grievor on a resident, this Board is without jurisdiction to order the Ministry' to employ the Grievor in a position which provides him with an opportunity for contact with residents. As there is no doubt that to order the employer to allow the Grievor to perform all the routes would provide the Grievor with an opportunity for contactwiththe residents (and perhaps even direct responsibility for residents) this Board can do nothing other than dismiss the grievance. Dated this 15th day of April , 1992 - Vice Chairperson (written dissent to follow) T. BROWES-BUGDEN - Union Member D. 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