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HomeMy WebLinkAbout1988-0411.Kiviloo.89-09-20 " ONTAFtiO " EMPLOYES OE LA COUF~ONNE ~ C~'OWN EMPL 0 YEES DE L 'ON TARIO · ~ GRIEVANCE' C,OMMISSION DE ~." SETTLEMENT REGLEMENT BOARD DES GRIEFS 780 DUNDAS STF~EET WEST, TORONTO, ONTARIO. MSG IZ,8. SUITE 2100 TELEPHONE/T£L~'PHONE ,80, RUE OUNOAS OUEST, TORONTO, (ONTAR'O) MSG ?Z$* BUREALI 2'OO IN THE KATTER OF AN ARBITRATION · , Under k TBE CROWN EMPLOYEES COLLECTIVE BARGAINING.ACT Before . THE GRIEVANCE SETTLEMENT BOARD Between: OPSEU (P. Kiviloo) Grievor - and - The Crown in Right of Ontario (Ministry of Correctional Services) Employer Before: J I.e. Springate Vice-Chairperson J. McManus Member D. Montrose Member For_the Grievor: P. Cavalluzzo R. Blair' Counsel Cavalluzzo, Hayes.& Lennon Barristers & Solicitors For the Employer: J. Zarudny Counsel Crown Law Office, Civil' Ministry of the Attorney 'General Hearings: September 7, 1988 November 16, 1988 December 12, 1988 January 30, 1989 March 10, 1989 May 16, 1989 DECISION The grievor and the union allege that the grievor was discharged by the employer without just cause. The employer contends that it was justified in discharging the grievor' because he had breached a condition of his reinstatement following a previous discharge. The union disputes that the grievor breached the condi%ion in question. The grievor is 48 years .of age. He.is divorced and has custody of two teen-aged daughters. The grievor commenced working for the employer as a probation officer in 1965. Although competent in the performance of his job duties, the grievor was viewed by management as a troublesome employee. The decision of a differently constituted panel of the Board in Kiviloo 439/85 'et al (Draper) indicates that in mid-1985 there existed considerable confl'ict between the grievor and his immediate supervisor, Mr. R, Khan. The conflict was partly a result of the grievor's conviction :hat Mr. Khan-had not adequately responded to. the situation of a probationer who'claimed to have heard voices telling him to kill the 9rievor. On July 5, 1985 Hr. Khan advised the grievor that one of his travel expense claims had been denied. The grievor's response to this information was desc'ribed as follows in the Board's decision of On July 5th Khan went into Kiviloo's office %o tell him that his travel expense claim for June 17th was being disallowed. Kiv~oo flew into a rage and shouted "Pay me Khan". When Khan left the office Kiviloo followed him shouting repeatedly "Pay me Khan" and "You son of a bitch pay me my fucking money". He stood .in %he doorway of Khan's office which Khan was trying to close, continuing to shout and gesticulate, demanding that Khan consult his superior (presumably meaning Walter) about the claim. Khan agreed to do so and Kiviloo returned to his own office. The grievor was discharged as a result of this o'utburst. When the matter came before the Board, the Board concluded t~at the grievor's conduct had been so disproportionate to %he proximate cause, a travel expense claim, that it must have been ( due, in part, tom the grievor's concerns about the probationer who had been ~earing voices. Notwithstanding this conclusion, because of the nature o? the grievor's conduct and the fact that the ' incident had taken place in tbs presence of other employees under Mr. Khan's supervision, the Board determined %ha% the grievor's conduct was deserving of a heavy penalty. In determining the penalty the Soard took' into account certain letters written by the 9rJevor to both the Minister and Deputy Minister of Correctlon8. The contents of the letters led the Board %o comment as follows: Whatever arguments may be made for a right of access by employees to senior ministry personnel, no such right could reasonably be thought to encompass what we find here: rash and persistent communications, some couched in o¢fensive language, some making charges verging on the l~bellous, some containing versions, of events that are I~ot entirely truthf'ul. In light of the considerations discussed above, the Board in its decision of May 13, i986 directed that the grievor be reinstated without .compensation but subject to the following condition- ~ The grievor shall be subject to immediate dismissal if,. during the period of two years following the date of his reinstatement, he engages in conduct justifying disciplinary action. The employer discharged the grievor shortly prior to the second anniversary of his reinstatement. It did so on the basis that he had breached the condition referred to above, in order to justify the grievor's discharge on this basis, the employer must demonstrate that the grievor engaged in some misconduct which justified the imposition of discipline. In determining.whether the grievor engaged jn such misconduct, he is entitled to be judged on the same basis as anyone else. His prior record and the fact that management viewed him as a troublesome employee are not relevant considerations with respect %o such a determination. The grievor was reinstated on or about May 20, 1986... The events which gave rise to his most recent discharge occurred on · i April 26, 1998. During the morm~ng the grie¥or received a ? telephone call from "K.H.", one of his female probationers. The_ grievor k~ew K,H. to be a potentially suicidal drug addict. K.H, advised the grievor that she had been arrested and was 'being held at the Metro West Detention Centre. She 'asked the grievor to come to the institution and assist her i~ obtaining a transfer to the Queen Street Mental Health Centre. The grievor advised K.H. that he woul'd come cut to the ,Detention Centre at 1:00 that afternoon. The grievor arrived in the public area of the building which houses female inmates at the Detention Centre shortly after 1'00 p.m. He approached Ms Martine Guillou', a corrections officer who was stationed behind a clear g~ass wall which separates the public area from the secure portion of the facility, Ms Guillou and the grievor could communicate through a speaker system. The 'grievOr identified himself and advised Ms' Guillou that he wished to enter the secure area to visit K,H. Ms Guillou checked several records which~listed the names of ~nmates ~n the institution but found no reference to K.H. She advised the grievor of this information. What occurred next is in dispute.' The grievor's version of what happened is as follows: The grievor expressed surprise that the records did not refer to K,H, 'He advised Ms Guillou that he had spoken to K,H. just a few hours before, Ms. Guillou replied that K.H. was not in the institution. Ms Guillou then turned her attention to three other individuals who were waiting to visit inmates. The grievor was surprised and .5 irritated by Ms Gu~llou's actions. He falt Ms Guillou should have given him her complete attention. Once Ms Guillou had dealt with the other three visitors, the grievor again approached her. Ms Guillou asked the grievor if he was aware if K.H. had another name. The grievo'r replied that he was not aware of an alias for her. The griever stated that he wished to speak to a supervisor about finding a way for him %0 see Ms GuiIlou version of what occurred is as follows: After She concluded that there was no reference to K.H, in the record~,.Ms Guillou asked t~e grievor if he knew if K.H. had an alias. The 'grievor replied that Ms Guillou should have this information. Ms Guillou stated that the institution's staff did not know the ali.ases of all the prisoners, The grievor.started to describe K.H., leading Ns Guillou. to comment that there were over 100 women in the. institution, The grievor then stated that he wanted to talk to a' supervisor. The grievor testified ~hat during his discussion with Ms Guillou he became annoyed because he ~knew that K,H. was in the ins%itution and it was possible that M8 Guiltou had discerned the annoyance in his voice, Ms Guillou testified that the grievor had been rude and obnoxious and questioned either her position or intelligence 'because she could not find K H. Ms Guillou did not specify what it was the grievor had said to her which was rude or 6 obnoxious or which she believed questione'd her position or intel 1 ivence. 2 The discussion betweeen Ms Guillou and the grievor was overheard by Corrections Officer Lianne Kolomayz. Ms Kolomayz was in a control area where, she could monitor some surveillance cameras and, when appropr'iate, unlock, the doors leading into the secure area. From her tocati'on Ms Kolomayz could look out into the public area through a special glass window, although she herself could not be seen. Ms Kolomayz was able ~o overhear ~uch of the conversation between the grievor and Ms Guillou through an open gun slot. According to Ms Kolomayz, the grievor advised Ms Guillou that he wished to see K.H. Ms Guillou replied that there was no K.H. in the institution. 'The grievor stated that K.H. had telephoned him from the institution. Ms Guillou did some further checking and then advised the grievor that K.H. was not in custody. The grievor made a comment about being given the.run around. He then asked to see someone in authority. Ms Kolomayz testified that during this exchange the grievor seemed to be annoyed-and that the tone of his voic6 was demanding. The grievor was obviously annoyed at being advised that K,H. was no~ in ~he institution when he knew that she was. Knowing that KJH. was there,, he persisted in trying ~o see her It appears that Ms Guillou was of the view that having been advised that the.records did t]ot refer, to an inmate by the.name of K.H. %he gr~evor should simply depart. She did not appreciate his persistence in trying %o see K.H. and viewed it as a form of harassment. We do not agree with this assessment. We accept Ms Ko]omayz's evidence that the gr'ievor indicated + that he believed he was being given the run around, It appears that it was this comment, together with the grievor's tone of voice, '6hich led Ns Guiilou to conclude that the grievor was being rude and obnoxious to her and questioning either her position .or intelligence. The gr'ievor's comment about being given the run around.was neit~her accurate nor fair.' On the basis of the information available ~o her, Ms Gui~ou could not know ~ha~ name K.H. had been registered under. The comment, however, resulted from a sense of frustration. The grievor kne~ that K,H. ~as in the institution. He was not trying to see her to further h~s o~n self-interests but because he believed she might be in need assistance. Zn these circumstances we do not believe the comment ~as of a n~ure as to ~us~fy the i~position of d~$cip~ine. Following'her discussion with the grievo.r,. Ns Guillou telephoned Ms Christina Kramer, a general du&y supervisor in the female building, and advised her tha~ a parole officer was trying ~o see a c~ient by the name of K.H. who was not in ~he building. Ms Kramer testified that'Ms Guil~ou also advised her that the 6a~-ole officer had beel; harassing her. Rather than immediately go dow~ to tiae'public area, Ms Kramer spent some time checking to ensure %ha% no one had been admitted to the institution under the name K,H, Ms Kramer then went to see Ms Guil]ou and asked her to point out the parole officer who she had called ,about. Ms Gui]]ou pofnted out the 9rievo¢. Ms Kramer then went through the doors into the public area. Hs. Kramer asked who the probation 'and parole officer was who wan%ed to see someone. The grievor stepped forward. Uhion counsel asked Ms Kramer why she had asked who wanted to see someone when Ms Guillou had already pointed the gr~evor out to her. Ns Kramer rep~ed that'she wanted the ~rievor to come to where she was standing so'that they wou]d be in view Ms Guil]ou and also.out of heaclng of other visitors. Ms Kramer added that the grievor had wanted %o see her, and so she expected him to go to he~. Ms Kramer asked the 9rievor for identification, He ~mmedJate]y produced a ~inistry ide~tlfication card bearing his photograph. After examining the card, Ms Kramer handed ~t back, The gr~evor then either volunteered, ~r Ms Kramer asked him his bus~ness address and %e]ephone number. Ms Kramer testified that during %his per~od the grievor'S manne~ appeared to be cha]lemging. When asked to explain how it was cba]]enging,,'Ms Kramer ~eplied that he was standing close to her and that he had approached her wlth ~s upper body leanJmg forward. Ms Kramer added that she .had learned that inmates who adopt thi~ position are ~bout to become challenging. The grievor told.Ms Kramer 'that he was looking for a client by the name of K.H.. who had telephoned him from the institution. He described K,H, as being, very short, about 4 feet 10 inches. Ms Kramer advised the grievor that there was no one registered in the institution under the name K.H. What h~ppened nex~ is fn dispute. According So ys Kramer the following occurred: The gr~evor raised his voice and "He s~id you dont always do your job correctly and that her name could be listed on something we had not checked". Ms Kramer replied that the institution did not have an inmate named K,H., bu~ it was'bossible ~ha~ she was there under an..alias. The 9rievor became ira.re and shaki'n9 his finger in Ms Kramer's face stated "Th~ts your fucking job not mine". Ms Kramer replied tha~ most inmates'use alises and she could not know the ~liase$ of every inmate. He Kramer added tha~ the grievor was more likely to know the alises of ~,H. than she was. Hs Kramer ~sked the grievor not to use' profanit~ or r~ise his voice. The grievor responded "This is all bullshi~, I don't have to take ~his." He then asked to see the superintendent of the institution, but upon being advised that this would take a few days, he asked to see Ms Kramer's supervisor. 1 ~!~ Ms Kramer testified that during her discussion with the 9rievor she was losing her patience with him,. but she did not express this loss of patience. In response to a series of questions from Union counsel, Ms Kramer indicated that although her friends sometimes, used the term, she personally, finds "bullshit" offensive and has asked her friends not Mo use it. The grievor's version of his discussion with Ms Kramer was as follows: After Ms Kram6r had advised hfm that there was no one in the institution by the name of K.M'.,..the grievor n¢t only described her, but suggested that he be let in to look for her. He also proposed that he be provided with access to a telephone so that he could call his office and get information relating to from~his file on her. Both of these suggestions were rejected by Ms Kramer, The gr~evor then asked to see a supervisor, to which Ms Kramer replied that the superintendent was not available, Feeling frustrated at being given the run-around, the grievor muttered "bu~lshit", .more to himself than anyone else. Ms Kramer then started Wagging her finger at him and stated that she did not have to take this language from him. The grievor wagged a finger back at Ms Kramer, mirroring her actions. The discussion between the gf~evor and Ms Kramer was Overheard by Ms Guill.ou and Ns Kolomayz, both of whom referred briefly to the discussion in their evidence, Ms. Guillou testified that when Hs Kramer as'ked the grievor for some identificat'ion, he was reluctant to provide it to her, a claim not supported by any other evidence. According to Ms Guillou, the grievor pointed his finger at Ms Kramer's face and used some profanity ~hich she did not Eecalt. Ms Guillou claimed that the grievor had been rude and obnoxious to Ms Kramer. In response to ' a question from union counsel, Ms Guillou indicated the she considered "bullshit" a profani.ty. Ms. Kolomayz testified that she fecal'led'the 9rievor making, a comment about the staff being difficult and that it was their responsibility to know the &ljases of inmates. Ms Kolomayz indicated that she had not seen any wagging of fingers. Ms'Kolomayz did not claim that she had heard the grievor use any'profanities. In response to questions from union counsel Ms Kolomayz indicated that the term "bullshit" is a common one in a jail and she is not shocked by.its use. Immediately after her discussion with the grievor, Ms Kramer went to see Mr. David Marsh, the shift supervisor. Accordin9 to · Ms Kramer, she advised Mr. Marsh that the grievor had told her that it was her fucking job to know what was going on. Mr. Marsh testified'that he recalled Ms Kramer telling him that the grievor was being very demanding, that he had wagged hi8 finger at h~r and that he had been rude, but he did not recall Ms Kramer saying ~that the grievor had swo~n 'at her or used profanities. Prior to meeting with the grievor Ms Kramer had been advised by Ms Ouillou that the grievor had been harassing her. Ms GUillou's inaccurate claim was probably one of the factors which leo Ns Khamer to conclude that the grievor had adopted a challenging manner, even though at the time she reached this conclusion he had not said anything inappropriate to her. The grievor continued to insist that K.H. was in the institution'. Particularly in light of Ms Kolomayz's evidence, we are satisfied that the 9rievor made a comment to the effect that it was the responsibility of the institution's staff to know the aliases, of prisoners,- Whether he expressly said so or not, the clear implication i~ what the grievor was saying was that the staff, including Ms Kramer, were not doing their jobs prooerly. In the course of expressing his displeasure with the staff of the institution, the grievor used the phrase "bulishit", a term Ms Kramer foumd Offe'nsivei At issue is whether the grievor also used the word "fucking". Ms Guillou's evidence in this regard is not very.helpful, for while she recalled that the grievor had used a profanity, 'she could not recall what ft was. Ms Guillou regards "bulishit" as a profanity, Ms Kolomayz did not recall the grievor having used any profanity. Logic suggests that Ms Kolomayz would likely'have recalled the grievor using the term "fucking" It is less likely that she,would have recalled him using the term "bullshit", particularly when in her experience the term is commonly used i i a jail a;~d she does not personally find it offensive. Likewise, Hr, Narsh would likely have recalled Ns .Kramer telling him that the grievor had used the term "fucking". In all the circumstances, we conclude that the grievor likely did not utilize any language stronger than the term "bullshlt", Although Ms Kramer finds it highly offensive, the term 'bullShit'' is not one which everyone vdews as being offensive. Indeed, while such is not uniformly the case, the term appears to / have gained some degree of acceptability. The evidence does"n~t suggest that the grievor used the term after Ms Kramer indicated that she was one of those who found it offensive. The grievor wagged his finger at Ms Kramer and expressed the view that she and other staff at the institution were'not ) performing their jobs properly, He used the term "bullshit" in reference to the situation. Mis actions were unwarranted and cannot be condo~ed. His conduct, however, resulted from his frustration at continuing to be told tha~ ~here was no K.H. registered a% %he institution when he knew for a fac~ that she was there. She had telephoned him from the imstitution that very day indicating that she was in need of his assistance. As discussed more fully below, once the 'grievor had an opportunity to calm down he sought to 'adopt a,non-confrontational approach.to .the situation. In Tight of the extenuatimg circumstances involved, we are led to conclude that while the grievor's conduct was inappropriate, it was not of suc~ a nature as go'justify the imposition of formal discpline. As already noted, after her discussion with the grievor Ms Kramer went to see Mr. Marsh. During the'course of their discussion, Ms Kramer advised Mr. Marsh that the grievor had been loud and rude to herself and Ms Guillou. Ms Kramer told Mr. Marsh that she wanted him to speak with the grievor. Hr. Marsh was not told that the grievor had himself asked to see Ms Kramer's supervisor. Mr. Marsh told Ms Kramer that she should calm down and that he would go and speak to the grievor. Mr. Marsh and Ms Kramer then went together to see the gr. ievor. It 'was the evidence of'Ms Guillou that the grievor had been loud and rude to Mr. Marsh. Ms S. Ledger, a corrections officer who had gone into the comtrcl area at about this time testified that when talking to Mr. Harsh the 9rievor had been very agitated, very hyper, and had flailed his arms in front of Mr, Marsh'~ f~ce. The evidence §1yen by Ms ~uillou and Ms Ledger ran .directly counter to that given by ti~e grievor, Mr., Marsh and Ms Kramer. Ms Ledger's testimony with respect to certain other issues also'ran counter to the flow of the.evidence. In these ci'rcumstances we reject the evidence of Ms Guillou and Ms Ledger. On the basis of the evidence given ~y ~he grievor, MS Kramer and Mr, Marsh, we are satisfied that durimg his Oiscussion with Mr. Marsh ~;he grievor was quiet and restraineO. On approachit~9 the 9rievor, Mr, Marsh asked for and received his identification card. Hr. Marsh then twice asked %he grievo¢ ' if he had been rude to his staff. On both occasions the grievor replied "No comment". The 9rievor told Mr. Marsh that he did not want to discuss the matter with him. Accor. ding to the grievor he explained to Mr. Harsh that he was not there to talk about h~mse]f, but about his client. Mr. Marsh testified that he found the grievor's so comment response unusual and it aroused his suspicions. The gri6vor advised Mr. Marsh %hat he was 'looking for) his client K.H. and the staff could not locate her. Mr, Marsh asked the grievor if she had an alias, to which the grievor replied he did not know. Mr. Marsh indicated that in the circumstances there was nothing he could do to assist the griever. The gr.ievor asked if t%e could use a telephone to call his office, Mr. Marsh pointed to a pay phone. The grievor testified that he also 'asked Mr. Harsh if he would help him at all, 5o which Mr. Harsh replied that he would not. Mr. Marsh in his evidence did not refer to this exch'ange. Hs Kramer, however, testified that Mr. Marsh advised the §mievor tha~ because the grievor had been rude to his staff he could not offer him any help. The §rievor turned and left the building. Ms Kramer testified that the grievor turned around while Hr. Harsh was still talking to him. Mr. Marsh, however, testified that he had finished saying what he had to say-before the grievor left. Mr. Marsh had not been told that the grievor had asked to see Hs Kramer's supervisor. Mr. Marsh understood that he was talking to the 9rievor only as a result of Ms Kramer's claim that the grievor had been rude to herself and Ms Guillou'. Mr. Marsh challenge'd the grievor about his previous conduct. The griever, however, refrained from getting into a discussion which might' result in an argument or otherwise further aggravate the situation. The grievor raised no objection when Hr. Harsh afked him for his identification, even though Ms Kramer had done so already. He also did not object or allow himself to get drawn into an exchange with Mr. Marsh when Mr. Marsh to~d him that he could not assist him and again when Hr. Marsh pointed %0 a pay phone, in response to the gr~evor's request %o use a telephone to call his office. There was no~h~ng in ~he 9flavor's conduct 'during his discussion with Mr. March which would have justified ~he imposition of any discipline. Mr. Marsh and M~ Kramer subsequently had a discussion during which Ms Kramer indicated that she was very upse't at the grievor's conduct. Hr. Marsh responded %ha~ if she was so upset, Hs Kramer should write out a report. Ns Kramer prepared such A report Prior to the gEievor's subsequent return to the institution. Ns Kramer also directed Ms Guillou to write a report. Hs Guillou testified that had Ms Kramer not directed her to do so, she would not have' prepared a repor.t. After le~vin9 the Metro West Detention Centre, the'grievor returned to his office. Mis file for K.H. did not refer to an alias but did note tha~ she had at one ~ime been in a facility 'known as Homestead. The grievor telephoned Homestead, which advised him' of three other names which'K.H, had at times utilized; The grievor ~hen called the records centre at the Metro West " Detention Cent're and was advised that an inma.:e was registered under one of the names. The grievor returned to the Detention Centre and provided all four names to a corrections officer who had not been involved with the events earlier that day. The grievor was admitted into the secure area. The grievor testified %ha% someone in the institution's records centre advised him bhat K.H. had been registered not only under one of her al.iases but under K.H. as well'. This seems hfghTy improbable since the overwhelming weight of the evidence establishes tha~ she was not registered under the name The grievor met with K.H. for about an hour, She advised him that she had been charged with theft and indicated %hat she had intended to use the proceeds of the theft to purchase.drugs, The grievor concluded that K.H.'s current difficulties were not tala'ged to any psychiatric problem and accordingly he did not support h~r request to be transferred to the Queen Street Mental Health Centre. After the grievor had spoken to K.H. and was preparing to leave the institution he was spotted by Ms Kramer who advised Mr, Marsh, of his presence. Mr, Marsh went to talk to ~the griev°r,, followed by Ms Kramer, who stayed a few' feet behind. The grievor advised them of the steps he had taken to get .into the institution. MY. Harsh testified that he asked the grievor who the inmate'was that he had see~, to which he Delieved the grievor had ~esponded that he did not know. When pressed On this point, Mr. Marsh Stated the ~rievor had not 9ivan him the inmate's name. In giving her evidence Ms Kramer did not refer to Mr. Marsh having asked the grievor the name of his client. 'The grievom denied saying to Mr. Marsh that he did not know %he name of his client, adding %hat he had been proud to point out that he had seen K.H. despite the attempts to keep him out, 6ivan the tentative nature' of Hr. Marsh's evidence on point and %he improbability of the griever saying he did not know the name of his client, we conclude that the grievor likely did not make such a statement. There i$ a conflict in the evidence as to whether or not the grievor.,apologized to Ns Kramer for his conduct ~arlier that day. According to the grie.vor, Mr. Marsh advised him that he had upset one .of his staff members, to which <he grievor replied that if she was upset, he was sorry. The grievor testified that he then repeated that he was sorry to Ms Kramer. The grievor stated that he made a comment to Hr. Marsh about there having been an inconvenience, but that it was a small problem and let's,forget about it. ~r..~4arsh and Hs Kramer, whose evidence we prefer, testified that the grievor made a comment about forgetting ,~he. whole thing, but did not make an express apology. Hr. Marsh testified "hat when the grievor said let's forget the whole thing he understood that the grievor had been speaking %o Ms Kramer and this along with the grievor's body language led him to interpret the grievor's statement as an apology, Ms Kramer, however, indicated that as far as she was concerned the grievor had never apologized to her. [t would, have been pr'~ferable had the grievor made a clear apology to Ms Kramer for his earlier comments. Nothing he said during his return to the institution, however, can reasonably be viewed as justifying the imposition of discipline. Mr. Harsh forwarded the reports wri't%en by Ms Kramer and Ms Guillou to his superiors. On Ms Kramer's report he had added two notations. The first was that he had asked the grievor if he'had been abusive to his staff, to which the grievor had reDlied no coma~er~t. The second r~ote stated that the grievor had apologized. to Ms Kramer for having.been verbally abusive to her. I% was Mr. Marsh's evider]ce that the only action he expected to result from the reports was that the grievor would be called in by his supervisor and told to shape up. The reports prepared by Ms Kr~amer and Ms Guillou came to the atte~tion of Mr. Don Cooley, the Minist'ry's acting regional manager.. Mr. Cooley commenced an investigation into the matters raised in the reports. On Nay 12, !988 Mr. Cooley and area personnel manager Ms Mary Capobianco met with the grievor, hi.s friend Mr. J. Kaarus and union representative Mr. R. Whitworth. At this meeting the grie'¢or was given an opportunity to respond to the reports. The grievor testified that it was agreed that Mr.. Whitworth would be provided with an opportunity to question his accusers and that another meeting would then be held. We prefer, hewever, t~e evidence given by Mr. Cooley, namely that it was understood that he would question the authors of the reports and then com~ to a decision relating to any discipline· After subsequently talking with Ms Kramer and Ms Guillou, Mr. Cooley conc)uded that the 9rievor's conduct on Apt. it 26, 1988 had been deserving of discip]ir~e and that in light o¢ the Board's decision of Hay 13,-19S6 discharge was.appropriate. On the morning of Hay 13, 1988 Mr. Cooley drafted a letter d';$cha.cgirlg the 9FievoF. He har~ded the letter to the grievor that afternoon, fqr. Coo'ley testified that after he handed the grievor the letter the 9t-ievor asked h~im a number of qustions, ,which he answered According to %he 9rievor's evidence, he asked only cne question of Mr. Cooley. The grievor did not contend that Cooley had Said anything Other than to answe~~ his question. According to both the grievor and ~r. Cooley the meeting ended with the grievor indicating that he wou~d be filing a grievance. Subsequent to the events described above the grievor f'iled a' complaint w~th the Ontario Public Service Labour Relations " Tribunal. In his complaint the grievor a~leged that his meeting with Mr. Cooley on May 13,,1988 had been a continuation of the .meeting on May 12th, and since he had not been accompanied by a un,on representative the employer had been in violation of section 29(1) of the Crown EmD]oyees.Co]]ec%~¥e Bar~ainin~ Act. After an ~nfft~a] day of hearing into the complaint the Tribuna~ deferred further coqsideration of the matter pending the outcome of these proceedings. The tribuna~ did so on the basis that the Board ,. would be able to address any issues of' procedural fairness relating to the grievor's discharge. At the hearing before the Board un,on counsel did hot'rely on any alleged procedural unfairness concerning the manner in which the grievor had been discharged. The Union did not contend that the relevant coll'ect.i'¢e asreemen% required that-the grievor be actompanied by a union representative when handed a letter of discharge. The union also did not argue that the grievor had in some.way been prejudiced by the ]ack of union'representation on May 12, 1988. The evidence, before us indicates that the grievor was not, in fact, prejudiced. As indicated above we are not satisfied that the grievor's conduct on Apri~ 28, t988 was deser, ving of any discipline. As an alternative basis for upholding the grievor's discharge, ho~eyer, the employer relies on the grievor's admission during the hearing that prior to his discharge.he was involved in preparing certain letters which were forwarded to the Minister of Correctional Services'over the signature of his friend Mr. Kaarus. At the time in question the grievor was under a two year ban imposed by the- employer prohibiting him from communicating directly with senior' officials, including the Minister, This ban was a result of the grievor's propensity to write letters to various Ministry and Government officials. During the hearing the employer filed a number of letters which the grieyor ha8 written to the Minister and other Government officials subsequent to his'termination. While the 'letters cover a number of topics, .certain of them contain unfavourable references to the manner in which named Ministry officials had ~,*¢._rformed their job duties. '~e are are no% in a position %o rble on %he veracity of all of these comments. Certain of the g.rievor's statements, however', relate to Mr, Cooley and events ' which were the subject matter of evidence given in these proceedJngs. We kefer specifically to the grievor's letter to the ! Minister dated May 30, 1988 in which he contended that. prior to the events discussed above Mr. Cooley made false charges and unjust accusations against him and then withdrew documents from personnel files so as to cover up his mistakes and unprofessionalism. The statements in quos%ion are f~lse and' reflect a gross distortion of what occurred. Further, the grievor would have reasonably'~nown this to be the case. With,respect to the employer's claim %hat the Board should uphold the grievor~s discharge because he had been involved in wri'%ing to the Minister, we do not believe that in an open and dem'ocrat~c society such as ours it is appropriate that an employee be disciplined or discharged simply because he has corresponded with a Minister of the Crown. As apparently happened in %he case of the grievor, the Minister is free, if he so chooses, to decline to make the communication a two way process or to give any weight %o the correspondence he receives, While it is not appropriate that an employee be disciplined for the simple act of corresponding with a,Minis~er an employee is not shielded from discipline if in the course of doing so he knowingly or recklessly ra~$es false allegatio~]s of misconduct' o¢~ the part of other public servants. The employer is entitled to take disciplinary acbion against such an employee so as to protect the reputations of those who have been falsely accused and also to prevent needless disruption to'the interna' workings of the Ministry. : The grievor knowingly gave false and distorted information to the Minister concerning the manner in which Mr. Cooley had been performing his job. This was conduct deserving of discipline. In the circumstances of this case it would be inappropriate for"~he grievo.r to escape the consequences of his conduct simply because it occurred subsequent to the employer's response to the events of April 26, 1988. Given the grievor's disciplinary rec6rd and the fact that one basis for the leve'l of discipline imposed by the Board following his previous discharge was,his conduct in writing similar types of ~etters, we believe a three month suspension of the grievor would have been warranted, Having reQard to the foregoing, the employer is~directed to reinstate the grievor into h~ former ~osition without any loss of ~eniority, The grievor is mot entitled to be compensated for the three months immediately preceding his re,instatemen~. Subject to the principles of mitigation, he is to be compensated, for the remaining period tha~ he was off work. The Board will remain seized of %his matter in the event the pa~ties are unable to agree 2~ on the amouht of compensatSon owing to the gr~evor. Dated at Toront. o, this 20th day of September, ngate, Vice-Chairperson y, J. McManus, Member "I dissent" (dissent attached) D. Montrose, Member DISS£1NT , 411/88 OPSEU (P. Kiviloo) - Hinistry of Correctional Services~ I do not agree with the.majority of the Board for the following reasons: 1. The grievor was involved in an incident at the Metro West Detention Centre involving four Detention Centre personnel. In my opipion thegrievor's conduct was inappropriate and would justify formal discipline. 2. The grievor's propensity co write let~ers co the Minister and others, although under a two year ban not to do so, was' not only an irritant, to all concerned, but.a serious breach of his employment relationship with the Ministry. However the specific false accusations against Mr. Cooley are more serious than. a strain on the employment relationship, but in fact warrant serious disciplinary action, far greater than the three month suspension imposed by the majority of the Board. In summation, the incident at the Metro West Detention Centre, the breach of employment relationship, specifically the false accusations against Mr. Cooley, coupled with the conditions imposed by the previous Board, are sufficient in my opinion to uphold.the discharge. ~ - Douglas C. Montrose