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HomeMy WebLinkAbout1989-0992.Brown.90-09-12' ~' ONTARIO EMPLO YES DE LA COURONN£ CHOWN EMPLOYEE$ OE[..'ONTAH/O GRIEYANCE C,OMMlS$1ON DE SETTLEMENT REGLEMENT BOARD DES GRIEFS ?80 DUNDAS STREET WEST, SUITE. 2700, TORONTO, ONTARIO, MSG ~Z8 TELEPHONE/TEL~P~O~:E. (4 ;6) 326- 1388 rE0, RUE OUNOAS OUEST, BUREAU 2~'00, TORONTO [OIgTAR~O), MSG '~Z8 FACSIMI£E/TELc~C©PJE ' (475) 326- ?396 0992/89 IN THE MATTER OF ANARBI?I~TION Under THE CROWN EMPLOYEES COLLECTIVE B~GAIN[NG ACT Before THE GRIEV~NCE BETTLEHENT BOARD BETWEEN OPSEU (Brown) Grievor - and - The Crown in Right of Ontario (Ministry 'of Correctional Services) Employer - a~d - T. Wilson Vice-Chairperson J. McManus Member B. Lobraico Member FOR THE R. Blair GRiEVOR Counsel Cavalluzzo, Hayes & Lennon Barristers & Solicitors FOR THE M. Galway EMPLOYER Staff Relations Officer' Human Resources Management Ministry of Correctional Services HEARING: February 14, 1990 DECISION The grievor is a correctional officer at Camp Hillsdale. In July 1988, he received a summons to attend as a crown witness at a Provincial Court trial on October 4, 1988. The court appearance did not arise out of his work as a correctional officer. His work schedule for that time period had already been set: he was to work from 7 p.m. to 7 a.m. As a result he approached his supervisor in early September with a request' for time off work under Article 32 of the Collective Agreement. Eventually, he was informed that Article 32 time off had been denied. He grieves that denial. Article 32 provides: 32.1 Where an employee is absent by reason of a summons to serve as a Juror or a subpoena as a witness, the employee may, at his option: (a) treat the absence as leave without pay and retain any fee he receives as a 3uror or as a witness; or (b) deduct'the period of absence from his vacation leave-of- absence credits or his overtime credits and retain any fee he receives as a juror or as a witness; or (c) treat the absence as leave with pay and pay to the Treasurer of Ontario any fee he has received as a 3uror or as a witness. On October 3, the grievor reported for work at 7 p.m. and upon completing his shift at 7 a.m. went home, got ready and went to the court which was almost 15 miles from his home. The accused in the case in fact pleaded guilty and those proceedings ended about 12:15 p.m. The grievor had lunch on the way home and got to bed by 1:15 p.m. He testified that he got some broken sleep and got up about- 4-4:15 p.m. He left for work about §:40'p.m. and reported in about 5:55 p.m. Upon arriving, he gave his supervisor a note as follows: "Sir: I am reporting for Duty as ordered by you and Mr. Ed. Frances, Deputy Superintendent, Barrie Jail. It is my Duty to report to you that I may be unfit for Duty due to lack of sleep. I was a Crown witness in a trial at Orillia Provincial Court this date and did not arriv~ back at my residence until 1:30 p.m. and am reporting with only 3-1/2 hours sleep. Due to the fact I was denied time off under Article 32, Leave-Jury Duty I accept no responsibility for my physical condition. W.H. Brown C02 This was given to 0M14 Tricco who was the supervisor on duty until 10:00 p.m. After that period, the grievor was alone with a C01, a casual with three months experience. Camp Hlllsdale iS a minimum security jail, i.e. a work camp (farm). The grtevor 'explained that the 30-50 inmates are convicted drug abusers, impaired drivers, and break and enters. His duty is care and control of the inmates, fire, safety and security checks. The grlevor testified that during.the shift, he did not feel mentally or physically capable of carrying out his duties in a reasonable or safe way. He had difficulty trying to stay awake and was constantly dozing off. Edgar Alexander Francis is now the superintendent of the 3 Barrie Jail. He was in October 1988, the deputy-superintendent. ~{e testified that .he denied leave to the grievor under Article 32 because in his opinion it did not apply since the grievor was not working at the time of his court appearance. He had no reason in his mind to believe that the grievor was unable to work at the time. It is the union's position that Article 32 must be broad enough to cover the situation where 3uror/witness duty renders the employee unable to perform his duties. It does not believe that Article 32 requires a time overlap between the scheduled hours of work and the court appearance in order to apply. To give an example of how there need not be an actual overlap, Mr. Blair for the union suggested a situation where an employee scheduled to work a 7 p.m. to 7 a.m. shift like the grievor, was required to attend court either as a witness or a 3uror for several days. Obviously he could not be at court all day and at work all night. A number of arbitration decisions were drawn to this Board's attention by Union counsel: the first and perhaps most directly relevant is Croft and Ministry of the Solicitor General (GSB 2287/87 decided 4 July, 1988). In that particular case, the grievor was a Security Officer 2 stationed at an OPP Office building in Toronto and he was scheduled to work the 3:00-11:00 p.m. shift. Me was summonsed to appear as a witness before the Grievance Settlement Board on October 2, 1987. He did not get home from work on the afternoon shift until 1:00 a.m. He lived in Whitby. As per his instructions from Union Counsel, he arrived early that morning at the G.S.B. to prepare for his testimony. In fact the case that day was concludedby negotiations between the parties by 12:30 p.m. The grlevor did not report for work at 3:00 p.m. as previously scheduled and although not disciplined for being absent without permission, he was not paid for the day and the Ministry took the position that Article 32 did not apply. The grievor felt that in that case that Article 32 did apply. He stated tha% he had not had much sleep, and was physically and mentally tired. He had been an active participant in the settlement negotiations which he found stressful. At page 5 in his reasons for dismissing the grievance, Vice -Chair Roberts writes: "We have decided that this question should be resolved in the negative. The grievor was not absent from his shift by reason of the summons that he received to serve as a witness before the Grievance Settlement Board. At the very least, the "by reason of" language of Article 32.1 requires a causal link to be established between the summons and the absence. And it would stretch matters considerably to find' that such a causal link existed in the present case. We accept that the grievor may have been tired and certainly did not want to report for work when the settlement' was reached at 12:30 p,m. But being tired falls far short of being incapable of performing your duties. It would have required a much more substantial showing in inability to induce this Board to forge the necessary link of causation in the circumstances of the present case." The union also drew to our attention the arbitration decision of K.A. Hinnegan in Transit Windsor and Amalgamated Transit Union, Local 616 (1982), 6 LAC (3d)69. The issue of whether the juror service must overlap with the scheduled shift was argued. The Collective Agreement provided: (1) Employees who are called to serve as jurors shall receive the difference between their regular shift at straight time normally worked and the payment received from the Court after presentation of proof of service and the amount of pay received." Arbitrator Hinnegan decided that there were no limitations, restrictions or exceptions contained in that clause as in the Canada Ferro case [(1979), 21 LAC (2d) 340 (Brandt)] and that it must be given its plain meaning: the sole requirement for claiming the benefit of s.59 is a call to court service on the particular day in question. What this case indicates especially as it distinguishes itself from the language of the collective agreement in Canada Ferro is that the scope of these provisions depends on the actual language used. In the case of Article 32 before us, Professor Roberts has emphasized, correctly in my view, the need for a "causal connection" because the language of the article is clear: it says, "absent by reason of a summons". The onus is on the party asserting the causal ~onnectton. I think Mr. Blair is correct in asserting that "lack of overlap" is not necessarily conclusive. Professor Roberts did not rely on "overlap". But like that 6 grievor, Security Officer Croft, the grievor in our case was unable to show anything more than that he had'not got his full amount of regular sleep on the day in question before having to report for work'. Like Professor Roberts, I do not find that as a result of the loss of some sleep the grievor was "incapable of performing his duties." Accordingly, the grievan~e is dismissed. Dated at Toronto, this 12th day of September , 1QgO. Thomas H. W~lson Vice-Chairperson "I DISSENT" (Dissent to follow) J. McManus Member W. Lobraico Member