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HomeMy WebLinkAbout1988-0009.Keeso.89-01-27 ' ~ ' ONTARIO EMPLOYES DE L~A COURONNE CROWN EMPLOYEES DE ~. 'ON TA RIO GRIEVANCE C,OMMISSION DE SETTLEMENT REGLEMENT BOARD DES GRIEFS 180 DUNDAS STREET WEST, TORONTO. ONTARIO. MSG IZ8- SUITE 2100 TELEPHONE/T~:L~PHONE 180. RUE DUNDAS OUEST. TORONTO, (ONTARIO) MSG 1Z8 - BUREAU2100 ~t416) 598-0688 0009/88 IN THE MATTER OF A~I ARBITIEATION under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT before THE GRIEVANCE SEI'rLEMENT BOARD Between: '.. OPSEU (H. Keeso) Gcievor and The Crown in Right of Ontario (Ministry of Correctional Services) Employer Before: M.V. Watters Vice-Chairperson I. Freedman Member A. Reistetter Member For the 6rievor: A. Ryder Counsel Gowling & Henderson Barristers and Solicitors For the EmplOYer: G.F.J. Lee Senior Staff Relations Officer Staff Relations Branch Ministry of Correctional S~rvices Hearing: December 16, 1988 DECISION This proceeding arises from the grievance of Harvey Keeso dated January 24, 1988, the material part of which reads: "STATEMENT OF GRIEVANCE The Employer supports and practices policies and procedures which jeopardize the .health and safety of Harvey geeso. SETTLEMENT DESIRED. That these policies and procedures be suspended £mmediately, a letter, of apology be drafted and the sole copy be given to Mr. Keeso. Mr. Keeso be compensated for two lost sick days and punitive damages," Exhibit '2' The facts pertaining to this matter were not significantly in dispute a~ the hearing. They may be summarized as follows: (i) The grievor ia a Correctional officer at the Metro- West Detent'ion Centre, On January 17, 1988 he and one other officer were scheduled to work the 7:00 a.m. to 3:00 p.m. shift at the Etob£coke General Hospital. They were stationed there to guard two male i~mates who were then patients of the hospital, At or about lunch time on that day, the grievor, was informed by Corp. Rollock that he was being relieved from his duties as there had been cer£ain complaints from :he nursing staff concerning his activities.. The grievor testified that he was taken by surprise by chis development as such complaints had not been brought to his attention previously. ~ (ii) The grievor proceeded back to the Detention Centre and, as instructed, met with Mr, Northcott who was the shift officer then in charge of the facility. During their meeting, Mr. Northeott asked the grievor whether he'had -1- invited any nurse to go out with him and mentioned that someone had complained that he was "hitting on" the nurses. Mr. Northcott then requested that he prepare a written report as to what had occurred at the hospital. The grievor therefore authored the following report which was dated January 17, 1988 at 1300 Hours: "Re: 'Hospital Duty at Etobicoke Genera! Rospltal Sir On Saturday and Sunday, January 16th and 17th, I Was assigned hospital duty at Etobicoke General Hospital on the 0700-i500 Hr. Shift. I.was assigned to Ym. Ca[ne, J64-26055 in room 9085. On Sa'turda7, Jan 16/88 nothing out of the normal daily activity happened. On'Sunday, Jan 17/88 at 1200 Hrs. I was relieved of duty.by C03 Rollock. CO Eagles took over duties. Upon returning I reported directly to OM15 Mr. Northcott. Mr; Northcott informed me that some allegations, had been made about this officer. With all due respect sir, I cannot make any further comments without knowing the specifics of the. allegations. Respectfully Submitted Harvey Kee'so CO2" Exhibit '4' This report was prepared in the staff training room. In his evidence the grievor stated that he found it di'fficult to write the report as nothing unusual had happened at the hospital~. The.grievor initially testified that he was sent home between 1:00 P.m. and 1:30 p.m. after submitting his report, In cross-examination, he.conceded that it was more likely that he left the facility at a time close to the end of his regular shift. A review of Exhibit '8' disclosed that he had signed out of the Centre at 1500 Hours. (iii) The grievor reported to the Detention Centre at approximately 6:45 a.m. on January 18, 1988. Shortly thereafter, Mr. Northcott dictated five (5) questions for him to respond to. These questions, filed as Exhibit '5', were: -2- 1, I£ ! asked out any nurses? 2. Did I cause any of the nursing staff to complain to their supervisor? 3. Did ! leare the Ym. unattended? .. 4. Did I enter areas restricted? 5. Do I have any idea as to why the nurses would complain about me? The grievor was not then given any particulars as to the complaints made against him. Specifically, he was not told the name of the nurse/s whom he had allegedly "hit-on", nor was he given any indication, as to when the incident'm~y have occurred, AC t'hat juncture the grievor had been stationed at the hospital for .four to five consecutive days. The grievor vas directed £o the visit control room to complete this further report. This room is located ju.st inside of th~ main entrance and is approximately five feet square by way of dimensions, ~alf of its walls are glass and there are apparently'blinds shield the occupants, if necessary. The grievor testified that he did not feel at liberty to close, these blinds. Bis presence in the room' was therefore observable by other persons, including staff, within the immediate vicinity. (iv) The grievor next proceeded to prepare his response to the' questions asked, The response was subsequently presented · to gr. Northcott who concluded' that it was insufficient. The grievor vas therefore instructed to return to the 'visit control area for purposes of preparing a more complete report. ~e vas not informed as to why ~r. Nor~hcott felt that his first effort was inadequate. It was the grievor's recollection that his second report o£ January 18, 1988 was much like the first. Half way through its completion, he was ordered to return to Northcott's office. Bis superior then read the contents of same and remarked "It isn't what I want, go back'and try again". The grievor testified that he had spent a considerable period of time to this point in trying to respond to the questions raised. ~ith the re~ectlon of his responses, he was unsure as to what would satisfy ~r, ~orthcott. (v) It was at this time that the grievor elected to contact his union representative. Be was advised by such -3- representative that he should speak to Mr. Scott Miller, a fellow officer with considerable union experience. Mr. Miller informed the grievor that the employer did not have the right to demand more than one report, unless further reports were required for clarification, and Chat he had the right to~ union representation during his meetings with Mr. Northcott. It was the grievor's_ evidence that he was "real upset" at this point in time as he had never' previously experienced such a situation. The grievor also expressed concern that a number of ~ther employees, on seeing him in the visit control area, had enquired as to what he was doing in that location. Mr. Miller confirmed in his testimony that the grievor seemed excited and distressed during their telephone exchange. He also noted that occurrence reports were generally prepared in the staff training area, the lounge, or in the security officer's office. Mr. Miller had never-observed the preparation of same in the visit control room. He agreed that the placement of Mr. Keeso in such area would arouse the curiosity of other staff and could lead to rumors being circulated vis a Vis the grievor. The grievor, after concluding the above-described conversation, prepared a further 'report. This was the third such effort of'the morning. It was the grievor's recollection that he completed same around noon. .The r'eport read as follows: "Appendix to report dated 17/01/88 Re Hospital Duty at Etobicoke General Hospital Sir Further to my report dated 17/01/8B i wish to add the following. ~hile on duty at the hospital I never left the inmate unattended or out of my sight. When the inmate was 'not secured to the bed, his shackles were on and secured. Several times a day I escorted the inmate from his room to the smoking lounge without incident. I encountered no problem with any hospital staff or other patients, nor was I made aware of any problems by hospital staff. I am not aware of ever entering any restricted area nor was I ever made aware that I had entered a restricted area by hospital staff. During the course of my duties I had occasion to have conversations with several o.f the nurses. I did not allow any of these conversations to interfere with the performance of my dut.y. During t'hese conversations I vas always polite, professional and well mannered. I have no idea as to why any of the hospital staff would complain to their supervisors about me. Respectfully submitted Harvey Keeso CO2", Exhibit '6' The above-cited report was returned to Mr. Northcott. It was the grievor's impression that his superior was not entirely satisfied with its content. He did, however, permit the grievor to excuse himself from the facillty for reasons o.f illness. The grievor testified that the events of the morning of January 18th had caused him considerable upset. It was the grlevor's estimate that he left'the De£ention Centre around the lunch period. Thereafter, he attended the office of his personal physician. After being informed of the grievor"s upset and :he reasons for same, the doctor provided a medical note which the grievor ultimately presented to the employer on his return to work after ;isaint two days. The medical note was apparently accepted by the employer without question. The two days of absence were' treated as leave of absence with pay pursuant to article 52.1 of the collective agreement. (vii) The instant grievance was filed on January 24, 1988. As noted above, the grievor claimed the return of two days of sick credits. Subsequent to the filing of the grievance, the employer' imposed a two day suspension on the grievor as a consequence of the complaint made by hospital staff. This discipline was the subject of a second grievance. The matter was eventually settled by the parties by way of a modification of the penalty to a one day suspension. It is noted that the evidence described above was presented through the grievor and Mr. Miller. The employer did not elect to call any'witnesses in support of the action taken. -5- It was the position of the union ihat the treatment accorded the grievor on January 18, 1988 was unreasonable and constituted a violation of article 18.1 of the collective agreement. Specifically, counsel argued that the approach of the employer in this instance went beyond the scope of legitimate inquiry. Reference was made in this regard to the vague allegations, the repeated rejection of the grievor's reports, and the placement of the grievor in an area where he could be readily observed by other staff. It was submitted that this treatment was excessive and humiliating and was designed to secure a "confes.sion" from the grievor. Counsel further submitted that the treatment adversely affected the health of Mr. Kees~ and that this was sufficiently established through the evidence presented by the grievor a~d the employer's acceptance of' the medical note. In the alternative, it was submitted that the employer's actions had a disciplinary aspect. Firstly, it was occasioned by the employer's response to an allegation of employee misconduct and, secondly, such response had a detrimental impact on the grievor. For. both of these reasons, we were urged to grant the relief sought. The employer, in response, submitted that the union had not demonstrated a breach of article 18.1. Counsel described the employer's response as a "reasonable" investigation of a serious allegation made against the grievor by hospital staff. It was --6-- further argued thst the appropriate degree of causation had not 'been established between the grievor's'illness and those aspects of the investigation which had been criticized by the 'union. The board was referred to the following awards which have interpreted the health and safety provisions contained in the collective. agreement: OPSEU (Union Grievance) and ~C~. 0335/85 (Roberts); OPSEU (Aleksa et al) and ~SG, 1130, 1136, 1137/84 (Brent); OPSEU (Warden) and MCS, 1152/87 (Dissanayake); OPSEU (Walker et al) and MS___~, 0863, 0865, 0866, 0867, 0868/85 (Kirkvood). Article 18.1 reads: The employer shall continue to make reasonable provisions for the safety and health of employees during the hours of their employment. It is agreed tha~ both the employer and Union shall cooperate ~o the fullest extent possible in ~he prevention of accidents and in the reasonable promotion of safe~y and health of all employees. There is no doubt ~hat the employer may take the necessary steps ~o investigate allegations o~ employee misconduct. In this instance, however, ye have some difficulty vi~h respect ~o ~he manner in vhich the inves~igat£ou was conducted. Specifically, ~e think Cha~ particulars o~ ~he allegations should have been provided ~o the grlevor a~ the earliest opportunity, such that he could properly respond to them. Had ~haC been done in this case, it is likely tha~ i~ would not have been necessary for employer to resort to ~he repeated requests of January 18~ 1988. Indeed, it appears to us ~hat the employer showed excessive zeal in making ~hese numerous requests in view of the evidence Chat the report did nor change significantly upon each subsequent re-write. If the grievor had been furnished with the specifics of the complaint made. against him, he could have directed his attention thereto in his report, In a similar vein, if the employer was dissatisfied with a particular segment of the response, the grlevor could hav. e been so informed, instead, on January 17th, the grievor, was simply told, in rather vague terms, of an allegation made against him. His uhderstanding of the .particulars of the'complaint was not materially advanced by the series of questions dictated by ~r. Nor:hcott on'January 18th. If the employer itself did not have sufficient detail in its possession to so advise the grievor, ye think tha't it should first have approached.the hospital staf~ to obtain same before it required the grievor to provide an explanation. Additionally, in the circumstances~ we consider that the employer should have selected a less visible location for the completion of the grievor'S report. It is understandable that the grievor might feel somewhat embarrassed by being put "on display" in the visit control area. Such placement clearly had the potential to lead to questions from other st'aff as to the reasons for the grievor being there over the course of several hours. In our minds, a more private location should have been employed for this purpose. Notwithstanding our concerns, we are unable to find a breach of article 18,1 of the collective agreement. Simply put, the board has not been persuaded that the process of -8- · investigation utilized by the employer actually led to the grievor's health problems which resulted in the two days away from work. We were not provided with a copy of the medical note which was submitted to the employer. Similarly, we were not given any additional medical opinion linking the employer's actions to the symptoms experienced by the grievor, We are not in a position to conclude that causatio~ has been established on · a balance of probabilities. The grievor is therefore not entitled to the return of the two days of sick credits. We express no,opinion as to the "disciplinary" aspect of the employer's conduct, as t~he board in a procedural ruling ordered that the grievance be restricted to the hea,lth and safety issue. We so ordered on the b.asis of the wordin~ of the ~nstan~ grievance. For ail of the above reasons, the grievance iS denied. Dated at l~indsor, Ontario, this 27 day of january , 1989. M~'agters, Vice-Chairperson I~e. r A, ~e[e~et~er, Member