HomeMy WebLinkAbout2015-0809.Hamel.15-12-01 DecisionCrown Employees
Grievance Settlement
Board
Suite 600
180 Dundas St. West
Toronto, Ontario M5G 1Z8
Tel. (416) 326-1388
Fax (416) 326-1396
Commission de
règlement des griefs
des employés de la
Couronne
Bureau 600
180, rue Dundas Ouest
Toronto (Ontario) M5G 1Z8
Tél. : (416) 326-1388
Téléc. : (416) 326-1396
GSB#2015-0809
UNION#2015-0234-0079
IN THE MATTER OF AN ARBITRATION
Under
THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT
Before
THE GRIEVANCE SETTLEMENT BOARD
BETWEEN
Ontario Public Service Employees Union
(Hamel) Union
- and -
The Crown in Right of Ontario
(Ministry of Community Safety and Correctional Services) Employer
BEFORE Felicity D. Briggs Vice-Chair
FOR THE UNION Nick Mustari
Ontario Public Service Employees Union
Grievance Officer
FOR THE EMPLOYER Ann Fowler
Treasury Board Secretariat
Centre for Employee Relations
Employee Relations Advisor
HEARING November 25, 2015
- 2 -
Decision
[1] The Employer and the Union agreed to participate in the Expedited Mediation-
Arbitration process in accordance with the negotiated Protocol for grievances
filed on behalf of or by Bailiffs. A number of the grievances were settled through
that process. However, one remained unresolved and therefore requires a
decision from this Board. The Protocol provides that decisions will be issued
within a relatively short period of time after the actual mediation sessions and will
be without reasons. Further, the decision is to be without prejudice and
precedent.
[2] Pat Hamel is a Bailiff with the Ministry and on April 23, 2015 he filed a grievance
that asserted he was disciplined for just cause. The grievance was filed as the
result of a three-day suspension imposed for alleged certain conduct involving
another Bailiff (hereinafter referred to as “Mr. A”) in the workplace on February
26, 2015.
[3] The Employer received an occurrence report written by Mr. A. that alleged,
amongst other things, the grievor stared at him in a “menacing and intimidating
way” to the point where he was unsure if the grievor was “just trying to startle me
or intimidate me or actually assault me by slamming the door into me.” According
to the Employer, Mr. A. was so upset by this incident that it caused a sustained
period of absence from the workplace.
[4] The Employer investigated this matter and during that process the grievor was
interviewed. According to the letter of suspension the grievor was not remorseful
and was not prepared to take any responsibility for this incident. At the med/arb
sessions he continued to maintain that there was nothing improper about his
conduct.
- 3 -
[5] In June of 2015 a video of this incident became available to the Employer. This
video was shown at the med/arb session and it was the contention of the Union
that it substantiated the grievor’s assertion that he did not do anything wrong.
[6] After considering the facts and submissions provided, I am of the view that the
grievance should be upheld. The conduct seen in the video is simply not
congruent with Mr. A’s assertions in his occurrence report. The deportment of the
grievor is calm and non-threatening. Although there is no sound with the video I
accept the grievor’s contention that he was not rude to Mr. A.
[7] The burden of proof is on the Employer in this matter and I am of the view that it
has not discharged its onus.
[8] While I understand that the Employer thought the grievor participated in
wrongdoing as the result of the complaint received, I think that once the video
evidence was obtained, the discrepancy between it and the occurrence report
ought to have brought about a review of the matter.
[9] In any event, the grievance is upheld. The grievor is to receive all compensation
lost and have the discipline removed from any and all files. I remain seized.
Dated at Toronto, Ontario this 1st day of December 2015.
Felicity D. Briggs, Vice Chair