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HomeMy WebLinkAbout1988-1134.MacLean, More & Union Grievance.90-01-09 , ....~.+ "':.;.~.!!.~.., ONTARIO . EMPLOYY~SDELA COURONNE GRIEVANCE C,OMMISSION DE SETTLEMENT REGLEMENT BOARD DES GRIEFS 180 DUNDAS STREET WEST. TORONTO, ONTARIO. MSG 1Z8 - SUI.TE 2100 TELEPHONE/T~L~PHONE ' 18G RUE DUNDAS OUEST, TORONTO, (ONTARIO) MSG 1Z8 - BUREAU 2100 Zl34/88, ~1356/88, 221/89 " IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES' COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD ~- Between: OPSEU (MacLean, More &'Union Grievance) ' Grievo£ - and - The Crown in Right of Ontario (Ministry of Community & Social Services) Employer Before: A. Barrett Vice-Chairperson .H. O'Regan Member F. Gallo9 Member For the Grievor: B. Rutherford Counsel Gowling, Strathy & Henderson Barristers & Solicitors For the Employer=' M. Gottesman Counsel Legal Services Branch '- Ministry of Community & Social Services Hearings: May 17, 1989 August 15, 16, 1989 October 6, 1989 DECISION These grievances arise under section 1R.1 of the collective agreement which is set out below: 18.1 "The EmDloyer shall continue to make reasonable Drovisions for the safety and health, of its emDloyees d~ring the hours of their employment. It is agreed that both the EmDloyer and the Union shall co-oper~te to the fullest extent possible in the Drevention of accidents and in the reasonable promotion of safety and health of all. employees." The SYl ADPs campu's of the Thistletown Regional Centre -offers a secure treatment.and'custody centre for seriously troubled Young Offenders. When one G. was admitted to the .... secure treatment program in October, 1987 he was 17 years old and characterized as being anti-social, aggressive, assaultive and having particular difficulty with f~male authority figures._ The evidence of the clinicians and correctional officers who worked with G. throughout his stay at the institution from Octoberf 1987 to January, 1989, was consistent in th~t.G, was Derceived by everyone to be assaultive, vengeful, unpredictable, maniDulative and obsessed with power, control and domination. There were many instances of Verbal and physical assaults on other residents and staff members throughout'his stay, and he was finally discharged to an adult correctional facility because of his assaultive behaviour.~ G. came to be in custody in the first place because of convictioh$ for break-and-enter, assault, weapon~ charges, and finally for - 2 - threatening the life of his girlfriend whom he perceived to have'"turned him in" on the other offenses. The evidefice was also consistent that G. was particularly offensive to female staff members from whom he craved attention, and attempted .to dominate by assaults, threatening and intim~dat'ion. G. was particularly interested in two female staff members; Darlene MacLean and Bonnie More Darlene MacLean was his favorite target as the following sequence of events will reveal. It is the union's position that the employer did not make adequate ~rovis~ons for the health and safety of these two female staff members, nor did the employer take appropriate action to protect the confidentiality o~ private information about staff members once the employer was aware that G, was actively try~.n~ tO obtain addresses and telephone numbers of MacLean and More for the stated purpose of getting his revenG~ against them i~ the community when he was released. The following is the sequence'of events leading up to these grievances: December 25, 1987 G. told Darlene MacLean that he wan~ed to kill her and her 2 year old son. MacLean reported this to her supervisor, Gerry Watson. Early 1988 G. wrote a letter to his mother, which was intercepted, asking his mother to find out MacLean's address and telephone number and relay the information back to him in a code. MacLean reported this to Gerry Watson. Some time later G. told MacLean that he had learned ~rom his mother that MacLean lived in Oakvitle and had an unlisted telephone number. (This was true). Still later a ]~tter was found in G.'s room, written in a simple code, which said "Get Darlene's phone number and address and kill her son." This incident was repor'ted to t~e chief clinician. January 5, 1988 MacLean wrote an incident report ~bout G, kicking her. March 17,'1988 There was an incident report written by ~ another staff member about G. threatening death.to MacLean. : Spring, 1988 A psychometrist allowed G. to look through a phone book in a ther. apy session for the stated purpose of .discovering MacLean's ~ddres~ and .telephone number. MacLean complained to the attending.psychiatrist about this action, and in a meeting the psychometrist admitting that he allowed G. to do th~.s "to give him a sense of power". June, 1988 'MacLean wrote an incident report about G. spraying her with cream rinse a~d throwing shampoo bottles at her. Sept. 12 & 13, 1988 G. told More that he had her address and phone number and mentioned the name of her street. Me told her that he didn't really care about getting her, but knew she was .a friend of MacLean's and stated that he could get to MacLean through More. Me stated that he found her phone number in someone's office and memorized it'. Later he got a phone book and was able to match the number to her fiance~'s name and thus get the address.· (Her fiance; is also an employee of the Sy% ADps campus). - 4 - September 22, 1988 Bonnie More searched G.'s room and found a list containing all of the M. MacLean~s li~ted in the Mississauga phone book. Late September, 1988 Bohnie More asked her supervisor for reimbursement~ for unlisting her telephone number which she did immediately after she found out that G. had it. The request was not granted. September, 1988 Darlene MacLean left her job at the Syl .Apps campus, partly because of her concern for her welfare and ~hat of her f~mily, in view of G.'~ threats. October 3, 1988 Bev Thomson, the program manager, posted a bulletin on the in-charge office bulletin board stating "For security reasons, should G. be AWOL, please contact Darlene MacLean and Bonnie More immediately". G. later, told staff members that he had seen the bulletin in the in-charge office. October 5, 1985 B. More filed her grievance alle~n~ breach ~of the health and safety provisions of the collective agreement " and requesting as' her remedy that the employer pay for the unlisting of her telephone number. .October 10, 1988 .B. More found a polemic written by titled "A New Leader" in which G. espoused Nazi-like views of power and domination. Mid November, 1'988 Michael MacLean,' 'Darlene's husband, is also a correctional officer at the Syl Apps 'campus. He was informed that G. had obtained his phone number from a card index file which was left in an open office near where G. was involved in 'a group therapy session under the direction of a psychiatrist. The Group therapy session was taking place in a unit or "cottage" that was - 5 - 'temporarily not in use as'a treatment facility. Apparently when the Unit was temporarily closed down, the records · were left behind, and G. was permitted to wander through the ~lnit during this group therapy session. Michael MacLean immediately changed his telephone number. Mid December, 1988 Michael and Darlene MacLean decided to sell their house and move away because they now knew that ~..had their phone . . ~ number and could probably obtain th'eir ' address. January, 1989 onwards G. was transferred out' of the institution to the Barton Street Jail in Hamilton. B. More had spoken to a police officer on the advice of Bev Thomson in October, 1988 when she discovered-that G. had her telephone number· The police officer advised her to de-list the number'but maintain the same number ·so that G. could be caught .if he attempted to use. it.· From January ~ through June, 1989, B. More received numerous collect calls from a per~on identifying himself variouslM by the names of .other residents who had been the Syl ADps centre with G. These calls were answered by More's fiance~ or their tenant, .and were refused. January 3, 1989 Michael MacLean launched his grievance alleging a violation of the health and safety.provisions of the collective agreement and requesting reimbursement for the expenses he was about to incur as·a result of haviDg to move away from his home in order to protect · himself and his family. March 28, 1989 The union launched a grievance under article 18.1 after it was discovered that mail addressed to a staff member at his home address was left in a mail box in an ar-a to which the residents have access. June 27, 1~89 B'. More received a collect call from G. and she accepted~the call in order that Jit could be traced. The' call came from the Barton Street Jail.. More immediately changed her. telephone number. On the evidence, we find that although all'of these' incidents were reported through the proper channels, manaGement's response When informed of the buiid-up of incidents.about G.'s threats and numerous attempts to obtain' .personal information about staff members, was negligible. There was no confidentiality policy in place at the time these Grievances arose, nor was there any formal staff training in confidentiality. In fact, casual staff were sometimes employed with little or no training at all. Some staff 'members spoke freely in front of the residents' about their persona], lives., families, etc. and about the personal lives of other staff members. When B. More commenced living with another staff member, (her fianceJ), the clinician in charge announced to the residents that the fianceI would'be removed to another ,init because of his new relationship with Ms. More. (In fact, it was~because of this'knowledge that G. was able to find. B. More's telephone number; (it was listed under her fiance's name}. The issue of confidentiality of staff personal information was simply left to the "common sense" of staff - 7 - me~bers. Some were discreet and others were not. There was no guidance on' the issue from semior management. Finally, the problem filtered 'up to Beverly Parker who is the director of secure programs at the institution. When she heard that G. had been able to obtain the telephone numbers of both More and MacScan., she took the following action: November 24, 1988 Parker'issued a memo to supervisors stating that no young people were to be allowed in the in-charge office; angther ~ memo requiring that all confidential staff information be removed from unit offices, and all other areas of the building except for the in-charge office and control; and another memo statinq t.hat correctional officers should be added to a committee of two social workers recently struck to explore the issue of confidentiality. January 12, t989 'The committee, to explore a policy of confidentiality set out its mandate in- writing. Michael MacLean was one of the members of the committee. February 27, 1989 Parker again wrote a memo about the' incident where an envelope with a staff member's home address was left in a mail , box by the tuck shop, then.delivered to a unit. The memo stressed the importance of confidentiality, and reiterated that staff phone numbers and addresses are only to be in the in- charge office and control. March 13, 1989 A~ envelope containing a ~taff home address was delivered to a unit and another strong memo was issued. March 1'4, 1989 The confidentiality committee receive~ set of proposals on confidentiality prepared by Gary Adams and Michael MacLean. March 21, 1989 The~e proposal~ and others were reviewed at the program managers meeting which is chaired by Ms. Parker. A draft confidentiality policy was discussed. April ll, 1989 Confidentiality was again' discussed at ~ the program mangers' meeting. April 25, 1989 Confidentiality was again discussed at the program managers' meeting. May 1, 1989 New training programs were inst~t~ted for casual and full-time staff. Thereafter, no one was allowed .to work there without a ten day train{ng program which contained section~ on staff confidentiality. Ail of the proposals of Gary Adams and Michael MacLean were implemented in'the policies and procedures and incorporated into the training program. Summer - 1989 For the f~rst time, regular staff meetings were. instituted and the confidentiality issue is now rai~ed at these meetings. July 1, 1989 The first draft of the policy and procedures manual sections deal~ing with confidentiality of staff infoKmation and regarding incoming calls was processed. These new policies and procedures were finally, implemented on October 1, t989. · It appears now; that the issues and.concerns that gave rise to these grievances have been met by all of the above actions taken by management. Ms. Parker' conceded that in the past "too much was based on what.we ~thought'was common .sense .... for tho long Confidentiality Was implicit rather than explicit~." M~. Parker concedes that these grievance~ would not have arisen if the new policies, and procedures and training had been in place. The~union concedes that with all of the above action, the issue of confidentiality has now been properly addressed and effectively dealt with. Both parties recognize. that ensuring confidentiality is the responsibility of everyone and that awareness of potentisl problems arising from laxness must be continually reinforced...A different kind of common sense must be employed in an institution than in daily life. Article 18.1 of the collective agreement establishes a two-fold duty on the employer. First, it mdst "make'reasonable provisions for the safety . . . of its employees during the hours of their employment" Secondly, the employer,."~hali operate with the union to the fullest extent possible in the . reasonable promotion of safety . . . of all employees." With respect to the first obligation on the employer, its counsel says that the negligent behaviour giving rise to G.'s discovery of the phone numbers was that of bargaining unit members or contract employees and not of management personnel. Also, any perceived harm that might come to the grievors would not happen during the hours of their,employment, but after hours, in their homes. We do not agree. It is m~Dagement's sole and exclusive right to manage the works force and direct the operation. Once management became aware that G. pre~nted a safety risk to two employees, it had a positive duty to make reasonable efforts to protect those' employees from the harm intended by G. Bargaining unit and contract employees were .t~ careless with private staff information'because they were simply not aware through training or direction of the potential harm that could result, What was needed, and was finally provided, was direction from above; but the barn door was not closed until th~ proverbial horse had bolted. The fact that any potential harm could only arise outside the regular hours of employment is not an answer to the fact that the breaches-of security occurred during the'regular hours of employment. Employer counsel further argues that the job of a correctional officer is on~ that has inherent risks in it and those risks are voluntarily assumed by the correctional. officers, That is true, but only to the extent of unavoidable risks, not risks that can be avoided through foresight and planning, - 11 - With respect to the second duty of the employer set out in art{cle 18.1, ~to' co-oPerate with the union in th~ promotion of safety of all employees, we find that management d~d~so, but belatedly. Both grievors and Gary Adams,, the union'sbhea~th and safety representative, expressed their concerns and asked for action throughout the course of events discovery of the telephone numbers. Little, if anything, was done until the safety risk was fully manifest. Employer counsel concedes that once management became aware of the ].ax attitudes of certain employees lead].ng to a possible safety r'isk, it had a duty to do the following things: !. Bring' the matter to the employees' attention. 2. Insist that the matter be rectified' · .3. Learn from the incident. 4. Adopt procedures to prevent a reoccurrence. 5' Consider discipline, of offending employees. Employer counsel points to the actions taken by management from and after November 24, 1988, as indfcat~ve of the reasonable response and reasonable precautions taken by management in response to the safety risk. However, as we have 'mentioned earlier, harm was already done by that time. Next,· employer counsel argues that the grievor MacLean's request'to be reimbursed for his moving expenses is too remote and speculative. This Board has jurisdiction to award damages for breach of the employer's du%y to provide .a safe work place. In Gonneau G.S.B. 227/81, an employee was awarded compenmation for damage to her motor vehicle occasioned in a poorly maintained employer parking lot. It is also clear from the arbitral juris- prudence that damages should be restricted to remedying the monetary loss· and·ought not to be awarded punitively. Further, a damage award must be subject to three common law Dr~.nciples. First, the loss claimed must not be too remote; .that ~% it mu~t hmve been reasonably foreseeable. Secondly, the aggrieved party must act reasonably to mitigate his loss. Finally, the loss or damages must be quantifiable and not speculative. Employer counsel argues that Mr. MacLean's action in selling his house and moving were an excessive reaction to a remote and speculative possibility that 'G. might find him and his family. We do not find Mr. and Mrs. MacLean's reaction to discovery of their telephone number to be an unreasonable response. Perhaps on an actuarial calculation the chances of G. finding the Mac[Jeans and doing them harm is. quite low. l-lowe~er, the extent of the harm threatened is st> sorious that even a remote possibility would be acted upon by a reasonable person. Having concluded that the employer breached its duty to make reasonable provisions for. the safety of ~acLean and More, . their remedies should flow from the actual damages incurred as a result of the b~each, More should be compensated for the unlisting of her telephone number and.keeping it unlisted. MacLean should be compensated for the reasonable expenses of his move. In determining what MacLean's r'easonable expenses are, we believe these'should be.~alculat~d ~n accordance with the employer's policy .on relocation expenses which is referred to in Article'38~7 of the collective agreement relating to · employees who ~elocate'their residences because of a change in headquarters. The employer's policy is·not set ~ut in the collective agreement but we believe MacLean's situation i~ analogous to that of an employee required to relocate at the employer's request. We will remain seized of jurisdiction in the event the parties are unable to agree on the computation of damages. By way of guidance, we do not think that there should be any allowance for a 'possible reduction in the sale price of the MacLean's home due to the fact that it was listad in December~ a reputedly poor selling time That head of damage too speculative. With respect to the union grievance filed March 28, 1989, relating to mail with an employee's home address on it being exposed where residents might see it, w~ find that the employer at that time was taking active steps to see that such incidents should not occur. This is evidenced by Ms. Parker's memo of February 27,.1989, and the active and on-going work of the confidentiality committee and~the program managers' involvement in formulating a confidentiality policy. In the March incident~management responded quickly and efficiently to an accidental or negligent breach of the now-promulgated rules about confidentiality of staff addresses and phone numbers. Accordingly, we dismiss that grievance, but allow the grievances of More and MacLean, as aforesaid. DATED at Toronto this 9th dayI of january, 1990. . A. B -Chairperson Ho ~'Regan, Iqe~ber Ir. ~allop,