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HomeMy WebLinkAbout1988-1252.Herdsman.89-08-11 ONTABIO EMPLOYES OE LA COURONNE CROWN EMPLOYEES DE L 'ONTA RIO GRIEVANCE C,OMMISSION DE SE'FI'LEMENT REGLEMENT BOARD DES GRIEFS 780 DUNOAS STREET WEST, TORONTO, ONTAR(O. M~G tZ$- ,.,eU/TE 2~00 TELEPHONE/T£J.~PHONE 'hgO, RUE DUNOAS OUEST, TORONTO, (ONTARIO) MSG 'IZ8 - BUREAU2100 (416)598.0688 ].252/88 IN THE HATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD Between: OPSEU (G. Herdsman) : Grievor - and - The Crown in Right of Ontario (Ministry of Correctional Services) Employer Before: R.L. Verity Vice-Chairperson M. Lyons Member G. Milley Member For the Gtievor: M. Bevan Grievance Officer Ontario Public Service Employees Union For the Employer: M. Galway Staff Relations Officer Ministry of Correctional Services Hearing: June 7, 1989 June 8, 1989 - 2 - DECISION The grievor, Gte9 Herdsman, is a Correctional Officer 2 at the Toronto East Detention Centre, a'maximum security institution. He grieves a two day suspension resulting from conduct on September 22, 1988 which is alleged to have breached the institution's Standing Orders. The grievance filed alleges discipline without just cause. The two day suspension was imposed for three offences; name)y, (1) having left his assigned post without the permission of his supervisor contrary to Standing Order 1, subsection 8, (2) having failed to Sign off duty contrary'to the same Standing Order, and (3) having falsified the attendance register by signing out at 1500 hours when he left the institution at approximately 1000 hours contrary to Standing Order 1, subsection 10. The relevant Standing Orders are dated July 1984 and read in part as follows: 8. Leaving Assigned Post or the Institution During Duty Hours While you are on duty, you may not leave your assigned post or the institution without the permission of your Supervisor. When leaving an assigned post, Correctional staff must note their departure and return in the appropriate log book ..... I0. SigQing Group Attendance Registers All staff who sign Group Attendance Registers must sign in _upon arrival at the institution and must sign out immediately before departure. Payroll cheques may be delayed for affected staff if the attendance registers are not properly signed. The completion of entries on attendance registers must always reflect accurate information. The Forward to the Institution's Standing Orders specifies that these Orders are issued by the Superintendent under the authority of the Ministry of Correctional Services Act R.S.O. 1980, Chapter 275, as amended. The Forward also provides that "standing orders are orders and not guidelines" and that is the duty of every employee to read and understand all Standing Orders. The facts can be briefly summarized. On the day in question the grievor was one of two Correctional Officers assigned to Unit 4 on the day shift (6:45 a.m. to 3:15 p.m.). The grievor left his assigned post at 9:50 a.m. because he felt unwell and wanted to go home. Fortuitously, he encountered his immediate Supervisor, Corporal Jean Steane on the elevator. After questioning by the Supervisor, the grievor explained that he had left his duty post because of illness. According to the grievor's evidence at the hearing, he acknowledged to Corporal steane that he should have contacted her prior to leaving his assigned post. The grievor testified that he asked Ms. Steane if she would accept this for information purposes but received no reply. In any event, the grievor attended at the office of Shift Supervisor D. J. Hill following the elevator encounter with Corporal Steane. The parties agree that Mr. Hill gave his permission for the grievor to leave the Institution. There is no dispute as to the legitimacy of the grievor's illness at the relevant time. Similarly, there is no dispute that he left his post without obtaining the permission of his immediate supervisor and that he Tailed to sign out in the Unit log book. However, before leaving the Institution prior to 10:00 a.m. on the day in question, the. grievor did sign the group attendance register and erroneously recorded his time of departure at 1500 hours. On the next business day, Toronto East Detention Centre Deputy Superintendent D. C. Poynter was asked to conduct an investigation regarding the grievor's conduct. He obtained Occurrence Reports from the Shift Supervisor and from the grievor's immediate Supervisor. After reviewing all relevant documentation, the Deputy Superintendent concluded that the grievor had breached the Institution's Standing Orders. On September 28 the grievor was notified in writing of the alleged offences and that a disciplinary meeting would take place in early October. On October 7 Deputy Superintendent Poynter and Acting Assistant Superintendent J. MacDonald met with the grievor in the presence of Union Steward Derrick Miller. According to Mr. Poynter's evidence, the Union adopted a confrontative approach and refused to offer any explanation as to the grievor's conduct. Upon request, the Union was given permission to review all relevant documentation including the Standing Orders, the relevant extracts from the Unit log book, and the group attendance register as well as the two Occurrence Reports. However, the Union adopted the position that 20 minutes was insufficient time to react to the documentation and requested ~n adjournment of the disciplinary meeting. Mr. Poynter rejected that request. The Union then sought the right to call and question all staff involved in the incident. That request was also rejected after the Deputy Superintendent had obtained instructions from the Regional Personnel Office. The meeting then concluded. Deputy Superintendent Poynter made the decision to impose a two day suspension based on the violation of the Standing Orders, the grievor!s apparent lack of remorse, and the absence of any mitigating factors. In addition, Mr. Poynter took into account the fact that the grievor did not have a clear disciplinary record. Previously, the grievor had received a reprimand, a one day suspension, a two 'day sus'pension and a final warning for lateness. Shift Supervisor Hill testified with regard to his part in the investigation and the accuracy of the contents of his Occurrence Report. Mr. Hill recommended that disciplinary action be taken against the grievor Corporal Steane was unable to give evidence due to her status of being on sick leave. At the hearing, the grievor testified that he had an operation a few days prior to September 22 and that Unit Supervisor Steane was fully aware that he was experiencing pain on the day in question. The grievor maintains that he telephoned his wife and. his physician from the Institution and informed Correctional Dfficer Campbell of his situation. Further, he testified that Supervisor Steane accompanied him to the Shift Supervisor's office prior to leaving the Institution. Mr. Herdsman expressed surprise that no one from management contacted him prior to his notification of the disciplinary meeting.~ He acknowledged that he neglected to sign out in the log book. However, the grievor maintained that he made no deliberate .attempt to falsify the group - 6 - attendance register and had "inadvertently" signed himself out at 1500 hours. The Employer contended that the grievor's actions warranted the discipline imposed in the absence of any mitigating factor. Ms. Galway contended that the disciplinary hearing stage was the appropriate opportunity for the grievor to explain his actions, and that it was inappropriate to withhold information of mitigating circumstances until the various steps of the grievance procedure. She referred the Board to the decision of Vice-Chairperson Jo)liffe in Re OPSEU (Warner) and Ministry of Correctional Services 381/84. ' The Union acknowledged that the particular Standing Orders were reasonable. The thrust of Mr. Bevan's argument was to the effect that the Employer had conducted a selective investigation and that the grievor's reluctance to divulge information was justified in all the circumstances. The Union cited the case of OPSEU (Michael O'Hara) and Ministry of Correctional Services 1596/84 (Verity). In sum, the Union maintained that no discipline should have been imposed. On the evidence adduced, the Board is satisfied that the grievor did violate the Standing Orders as alleged. The evidence established those Standing Orders were known to the gFievor, We would agree with the Employer's contention that it is essential that lines of authority be maintained in a maximum security institution regardless of circumstances. Accordingly, we must find that the Employer had just cause for the imposition of some form of discipline. The real issue, we think, is the appropriateness of the penalty imposed. In the instant grievance, there are mitigating circumstances which merit consideration. The breach of the Standing Orders in this case can be properly characterized as a technical breach of Institutional ru)es. There is no dispute that the Employer accepted the le§itimacy of the grievor's illness on the day in question. However, the Employer made no attempt to elicit an explanation from the grievor until the disciplinary meeting. In our opinion, the grievor should have been required to file an Occurrence Report. Similarly, it may have been helpful to have obained an Occurrence Report from Correctional Officer Campbell who was on duty with the grievor on Unit 4C on the day in question. The uncontested evidence of the grievor was that Correctional Officer Campbell was fully informed that the grievor was unwell and had spoken to his physician. Indeed, had the Employer conducted a complete investigation, it may well have been that the issue would have been resolved to the mutual satisfaction of the parties. In the result, the Employer's investigation may be properly described as a selective investigation. Admittedly, the grievor may be faulted for his failure to offer any explanation for his conduct at the disciplinary meeting. It would have been appropriate for the grievor to have offered some explanation for his conduct in the absence of a criminal charge. Obviously, the grievor acted as he did on the advice of his Union Steward. Deputy Superintendent Poynter candidly acknowledged "some reluctance "in imposing the two day suspension. At the time the penalty was imposed, which he described as "a severe penalty", the Deputy Superintendent was influenced by the grievor's ~ltege6 con~rontative stance, his lack of remorse, and his failure to volunteer an explanation. To some extent the Deputy Superintendent took into account the grievor's previous disciplinary record in deciding that neither counselling no~ a written reprimand had been effective in the past. Unfortunately, at the time the discipline was imposed, Deputy Superintendent Poynter was unaware ~T the grievor's particular circumstances. The Employer would have been able to make a more informed decision had the grievor elected to discuss the allegations. However, the grievor's failure to offer an explanation at the disciplinary hearing does not restrict the remedy to which the grievor would be otherwise entitled. See generally OPSEU (Robert Smith) and Ministry of Correctional Services 2590/87, 19/88, 152/88 (Dissanayake). Under the authority of s.19(3) of the Crown Employees Collective Bargaining Act, this is the appropriate case, we think, to vary the penalty imposed and to substitute in place of the 2 day suspension a written reprimand. In the result, this grievance shall succeed in part. The grievor shall be compensated for the two days loss of pay and benefits, if any, but without interest. The Board retains jurisdiction in the event of any difficulty in the implementation of this Award. DATED at Brantfor6, Ontario, this llth ~)ay of August, 1989. R. L. VERITY, Q.C. - VICE-CHAIRPERSON G. MILLEY - MEMBER