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HomeMy WebLinkAbout1989-1282.McCarl.90-04-26 ONTARIO EMPLOYES DE LA COURONNE "~ CROWN EMPLOYEES DE L 'ONTARIO ORIEVANCE CQMMISSlON DE SETTLEMENT REGLEMENT , BOARD DES GRIEFS 180 DUNOAS STREET WEST. 1'ORONTO, ONTARIO. MSG 1Z8- SUITE2100 TELEPHONE/TELePHONE 150. RUE OUNDA$ OUEST, TORONTO, [ONTARIO) MSG IZ8- BUREAU2~O0 1282/89 IN THE HATTER OF AN ARBITRATION Under TEE CROWN EI~PLOYEES COLLECTIVE BARGAINING ACT Befoce TEE GRIEVANCE SETTLEMENT BOARD BETWEEN: OPSEU (McCarl) Grievor - an4 - The Crown in Right of Ontario ('Ministry of Transportation) Employer BEFORE: S.L. Stewart Vice-Chairperson M. Lyons Member F. Collict Member FOR THE H. [,aw GRIEVOR: Grievance Officer Onta_rio Public Service Employees Union FOR THE K. Cribbie EMPLOYER: Staff Relations Advisor Ministry of Transportation HEARING: February 22, 1990 DECISION Mr. R. McCarl was employed as a Patrol Operator B by the Ministry of Transportation. The position falls within the classification of Heavy Equipment Operator III. Mr. McCarl worked out of the Stayner patrol yard which is located in the Owen Sound district. He was discharged from his employment due to the suspension of his driver's licence. As well, he was denied a leave of absence for the period of the licence suspension. Mr. McCarl has filed two grievances, both dated September 20, 1989, in which he grieves that his request for a leave of absence was improperly denied and that his dismissal was without just cause · The provision of the Collective Agreement relevant to the request for the leave of absence is Article 29.1, which provides as follows: Leave-of-absence without pay and without the accumulation of credits may be granted to an employee by his Deputy Minister. Section 18(2) of the Crown Employees Collective Bargaining Act provides that employees covered by that legislation will not be dismissed except for just cause. A good deal of the evidence was not in dispute. Mr. McCarl has been employed by the Ministry in the classified service since October 26, 1986. He was considered to be a good employee. Prior to his full-time employment, starting in November, 1984, he performed work for the Ministry as a seasonal employee. Prior to that time he worked operating a sander for a private contractor who provided services to the Ministry. Mr. McCarl is the father of three young children. The family home is mortgaged. At the time of his discharge his wife was employed outside of the home only on a part-time basis. Mr. McCarl testified that on a Friday evening in June, 1988, either June 9 or 14, he went to see a friend after work to assist him with moving some material in his back yard. Mr. McCarl stated that he consumed six or seven beer in the process of carrying out this work and that he did not have anything to eat. After finishing the work he drove home in his own vehicle. He was stopped by a police officer who asked him if he had been drinking. Mr. McCarl testified that he advised the officer that he had been drinking and that he complied with the officer's request to accompany him to the police station. He provided a breath sample which showed the level of alcohol to be 2.O. The legal alcohol level is .08. Mr. McCarl was charged with impaired driving. The next morning, Mr. McCarl attempted to reach his 3 immediate supervisor to advise him of the matter but was unable to contact him. He then contacted another member of supervision and advised him of what had transpired. Subsequently, Mr. McCarl entered a guilty plea to the charge of impaired driving and was convicted of that offence. He was fined $350.00 and his licence was suspended for one year, commencing August 8, 1989. The possession of a valid driver's licence is a requirement of the grievor's position. When Mr. McCarl was first hired he signed a document entitled "Conditions of Employment Bargaining Unit Positions" which contains the following with respect to the loss of a driver's licence: Due to the nature of the Ministry's mandate, the loss of your driver's licence will be viewed with severity, if your duties require you to operate a motor vehicle, whether the Ministry's or your own. If any employee whose duties require possession of a valid driver's licence has such a liCence suspended, he/she must report the fact to his/her supervisor immediately regardless of the circumstances under which such suspension occured. In certain cases, the suspension of his/her driver's licence renders an employee immediately unable to perform the duties of his/her position. In other cases, however, alternative arrangements may be made with no inconvenience, extra cost or loss of efficiency to the Ministry. You must realize, therefore, that if your licence is suspended, termination of your services or demotion to a position where operation of a motor vehicle is not required, are possible consequences. 4 Mr. McCarl stated that he was familiar with the policy of the Ministry. as outlined in this document. He also stated that he was familiar with Ministry Directives C-31 and C- 32. Directive C-31 prohibits the use of drugs and alcohol by employees while at work. Directive C-32 requires an employee whose duties require the possession of a valid driver's licence to notify a supervisor when his or her licence has been suspended revoked or downgraded. As well, Directive C-32 provides that where an employee's driver's licence has been affected in this manner: ...non-disciplinary action is appropriate if the employee is no longer qualified to perform all or part of his/her duties. When non-disciplinary action is indicated, among the alternatives which may be examined are the fol lowing: (a) removal of the employee's driving responsibilities; (b) removal of the employee's authorization to operate any motor vehicle on Ministry business; (c) reassignment of the employee (subject to restrictions in the collective agreement, where applicable ); (d) termination of employment. Between the effective date of the suspension of his licence, August 8, 1989, and September 5, 1989, when. he ceased working for the Ministry as a result of his dismissal, Mr. McCarl was assigned to miscellaneous duties such as'maintenance, picking up litter and fixing signs. 5 On August 24, 1989, a meeting was held with the grievor, his Union representative and three members of management. One of the members of management present was Ms. M. Majesky, District Engineer. It was Ms. Majesky who made the decision that Mr. McCarl would not be granted a leave of absence and who made the recommendation that his employment be terminated. The minutes of that meeting and Ms. Majesky's evidence established that she indicated to Mr. McCarl that his actions were embarassing to the Ministry in view of its involvement in campaigning against impaired driving but that as it was his first offence, she was inclined to treat the matter with some leniency. At the meeting Ms. Majesky stated that the alternatives to be considered were reassignment to a position that did not require a driver's licence, Mr. McCarl's resignation, or, his dismissal. Mr. McCarl was asked if he was experiencing an alcohol problem which would benefit from an assistance program. Mr. McCarl stated that he did not feel that he did have a problem with alcohol. In his evidence before this Board, Mr. McCarl confirmed this statement. Mr. McCarl also stated in his evidence that he recognized that what he had done was "stupid" and that he had exercised poor judgement on this occasion by putting his family, himself and his employment in jeopardy. At the meeting, Ms. Majesky advised Mr. McCarl that 6 there were no positions available in the Stayner area and that the position that could be made available to him was on the electrical crew which worked out of Owen Sound. Owen Sound is located some 45 to 50 miles away from Mr. McCarl's home. It was stipulated that Mr. McCarl would have to bear any expenses associated with the relocation. As well, the position attracted a lesser salary. If Mr. McCarl performed his work satisfactorily and there was no indication of a problem with alcohol Mr. McCarl would be reinstated to his former position upon reinstatement of his licence, it was also noted in the minutes of the meeting that Ms. Majesky indicated that: "the option of a leave of absence is not available". After the meeting, Ms. Majeskey sent Mr. McCarl a letter dated August 25, 1989 wherein she confirmed the three alternatives put forward to Mr. McCarl at the meeting. Mr. McCarl replied to Ms. Majesky in a letter dated September 5, 1989 wherein he stated that he did not wish to accept the reassignment to the Owen Sound office because of the cost involved. He further stated that he wished: "to formally request a leave of absence without pay until August 8, 1989." In his testimony before the Board, Mr. McCarl explained that the cost involved in commuting to Owen Sound and the expense that would be involved in obtaining other accomodation in Owen Sound made the cost of 7 accepting the other position prohibitive. As well, he would be away from his family. Mr. McCarl was able to obtain other employment in the Stayner area, at a lower wage than his previous employment. He stated that he wished to return to his former ~osition. Ms. Majesky replied to Mr. McCarl by letter dated September 7, 1989. After reviewing the three options that were put to the grievor at the August 24, 1989 meeting, Ms. MaJesky states as follows= In your letter of September 5, 1989 you indicated you are not accepting reassignment to the electri- cal crew. Your request for leave of absence with- out pay is denied as it is against our Ministry Policy. Therefore, I have no alternative but to proceed with recommending your termination effective September 5, 1989. Ms. Majesky did recommend that Mr. McCarl be terminated in a letter dated September 12, 1989 to Mr. J. Kernaghan, Regional Municipal/Maintenance Engineer. In this letter, Ms. Majesky provided a summary Of the events and the proceedings and concluded as follows: By way of letter dated Sept. 5, 1989, received Sept 6, 1989, Mr. McCarl did not ~ccept the reassignment and has requested a leave of absence without pay. As is documented in the summary of hearing, Mr. McCarl was advised that a leave of absence was not an option to be considered. The options stated to him were as follows: 1) reassignment to a position with the Electrical Crew which does not require a Driver's Licence; 2) dismissal from employment: 3} resignation. In view of Mr. McCarl's rejection of the reassignment option, I am recommending termination of his employment from this Ministry, effective Sept. 5, 1989. Ms. Majesky's recommendation was concurred with and was ultimately accepted, resulting in Mr. McCarl's formal termination. Ms. Majesky testified that when she received the request for a leave of absence she discussed the matter with the Regional Director and his personnel responsible for such issues. She stated that she was advised %hat "they couldn't find any reason that we should grant him a leave of absence". Ms. Majesky also stated that she was also advised that: "it wouldn't be advisable to grant a leave of absence under these circumstances" and that this was her opinion as well. Ms. Majesky did not explain why she felt that a leave of absence would not be advisable. She did state that she did not wish to keep Mr.~ McCarl's position open for him during a leave of absence because there is minimum staffing on the crews and they need a person, in the position. She stated that Mr. McCarl's position has been filled for the winter by a contract employee but that it was currently being advertised. In cross-examination, Ms. Majesky was asked about her 9 statement in the September 5, 1989 letter that the granting of a leave would be "against our Ministry Policy". She acknowledged that there was no policy which specifically prohibited a leave of absence being granted in such circumstances and explained that what she meant was that the policy of the Ministry did not specifically provide for the granting of a leave of absence in such circumstances. Ms. Majesky agreed with Mr. Law that the fact that the incident of impaired driving took place while Mr. McCarl was off duty made the incident less embarassing to the Ministry than would be the case if the incident had taken place when he was on duty. On behalf of the Employer, Mr. Cribbie argued that there was just cause for the discharge of Mr. McCarl and that Mr. McCarl's request for a leave of' absence had been denied in accordance with a proper exercise of the Employer's discretion contemplated by Article 29.1. In support of his position that the discharge was justified, Mr. Cribbie referred to Jacobsen 394/82. In that case, the Board upheld the discharge of an employee who was required to have a driver's licence in order to perform his job but had lost his driver's licence due to a conviction for impaired driving. Mr. Cribbie emphasized that the Employer had made the grievor aware of the fact that the possession of a valid drivers licence was a condition of his 10 employment and the implications, including termination of employment, 'that would flow from the loss of his licence. Mr. Cribbie also emphasized that the Employer had found an alternative position for Mr. McCarl and that Mr. McCarl had declined this position. With respect to the request for the leave of absence, Mr. Cribbie referred to the principles set out in O'Brien 1157/86 and ¥oun__._.g 220/79 and submitted that the decision making process was in compliance with the relevant principles. Mr. Cribbie argued that the issue of the leave of absence only became relevant if it were concluded by this Board that just cause for the discharge of Mr. McCarl had not been established. On behalf of the Union, Mr. Law argued that the decision to deny Mr. McCarl's request for a leave of absence was not based on a proper exercise of discretion as required under Article 29.1. In his submission, Ms. Majesky did not put her mind to the merits of the request. Mr. Law referred to the decisions of this Board in Kuyntjes 513/88 as setting out the appropriate standard of review of the kind of decision that Article 29.1 contemplates. He argued that this decision contains a more accurate and more recent statement of the appropriate considerations than. that set out in the Young decision. In his submission, the decision of Ms. Majesky to deny the request for a leave of absence was arbitrary in the same sense that the Board 11 found the manner in which the employer's discretion was exercised in the O.'Brien case to be arbitrary. Mr. Law also argued that the onus rests with the employer to satisfy the Board that there were operational concerns that justified its decision to deny the request to grant the leave of absence and referred to a number of arbitration decisions in the private 'sector in support of his position. Mr. Law submitted that there was a balancing of interests that must be undertaken in cases such as this and that where the granting of a leave of absence was a reasonable alternative available to the Employer, the discharge of Mr. McCarl must be found to have been without just cause. Clearly, the suspension of Mr. McCarl's licence made it impossible for him to perform his regular duties. As well, it is clear that Mr. McCarl was made fully aware of his obligation to maintain a valid drivers licence and the consequences, including termination, of his failure to do so. Termination of employment is properly considered to be the last step however, when other reasonable alternatives have been exhausted. This was the approach taken in the Jacobsen case referred to us by Mr. Cribbie. That case involved a situation where the grievor had lost his licence for a second time. The first time the employer was able to find the grievor alternative employment but was unable to find alternative employment for him after the second 12 suspension and terminated his employment. The Board found that the employer had acted reasonably in so doing. There was no request for a leave of absence in that case and hence the considerations before that Board were somewhat different than those before us. However, we agree with the conclusion in that decision that the question to be determined is whether the employer has acted reasonably in terminating the employee. In this case, the issues of whether there was just cause for the discharge of Mr. 'McCarl and whether his request for a leave of absence was properly denied become intertwined. If a leave of absence was a reasonable alternative that was improperly denied, then it must be concluded that the employer's failure to avail itself of this alternative and instead terminate Mr. McCarl's employment, was not a reasonable action. The decisions in ~, O'Brien and Kuntjes articulate the considerations with respect to the manner in which the employer's discretion is to be exercised in different ways. We note, as Mr. Cribbie ~ointed out, that excerpts from the decision in Young are referred to with approval in the Kuntjes decision. The Youn~ decision sets out the relevant considerations at p. 5, as follows [case references omitted]: The grievor is arguing that she has been unreasonably denied leave of absence under Arictle 29.1. While that article is framed in a way which appears to give management an unlimited discretion in the granting or 13 denial of leaves of absence, in fact that discretion must be exercised in a non-discriminatory and reasonable manner, as many arbitration awards have held. The employer, in deciding whether to grant or deny a leave of absence, must consider the merits of the individual application. He cannot rely on "floodgates" arguments, saying that granting a leave of absence in this case may lead to many more requests and therefore set a dangerous precedent. Rather, the employer must turn its mind to this particular request, and consider both the harm to management's objectives in granting the request and the importance of the request to the employee and the hardship caused by the denial. An arbitration board, in subsequently assessing what the en%01oyer has done in reaching its decision, then plays a restricted role. It must decide whether the employer has acted reasonably and without discrimination and has turned its mind to the merits of the particular request. If satisfied that these criteria have been met, the Board must deny the grievance, even if it disagrees with the result reached by the employer or if it might have reached a decision other than that reached by the employer. The Board's concern is the reasonableness [emphasis in the original] of the-decision, not its "correctness" in the Board's view. Such an approach is the proper one to adopt in situations such as leave of absence cases, where the collective agreement gives the employer a broad discretion and where the Board has less familiarity than has the employer with the needs of the workplace... Even accepting the Mr. Cribbie's submission that the Young decision properly sets out the scope of arbitral review of a decision to deny a leave of absence in a case such as this, after a careful review of the evidence, it is our conclusion that the employer's discretion has not been exercised in accordance with the principles outlined in this decision. Prior to the time that the request for a leave of absence was made, Ms. Majesky advised Mr. McCarl 14 that a leave of absence "was not an option". When she received the formal request she took steps to determine what the Ministry's policy was in such circumstances. She determined that there was not a specific policy with respect to granting leave in such instances The persons · advising her further stated that they could not think of a reason that he should be granted a leave of absence and that it would not be advisable to do so. Ms. Majesky stated that she agreed that it would not be advisable to grant the leave of absence. Ms. Majesky's evidence does not, however, support the conclusion that she put her mind to the merits of the request and the competing considerations involved. Her reference to the advice she received suggesting that "they could not think of a reason" to grant the leave of absence suggests that the grievor's interests were not assessed and weighed in the decision making process. The denial of the leave resulted in the termination of Mr. McCarl's employment, the most serious of all possible consequences. Clearly, there were interests of the grievor to be weighed and assessed in light of any competing interests of the employer. The evidence of Ms. Majesky supports the conclusion that this assessment did not take place. The only reason given by Ms. Majesky for her decision to deny the leave of absence was that she did not wish to hold Mr. McCarl's job open for him for a year. In view of the employer's willingness to hold his job open for him if he accepted another assignment, we cannot accept that this is a reasonable basis for the employer to have denied the leave of absence. The evidence did not disclose any particular difficulty that would be created by holding the position open, or, for that matter, any other difficulty that would result from the granting of this request. The process we are engaged in here is determining whether the decision was a reasonable one, made after an assessment of the competing interests; that is, a decision for which there is some objective justification. The question is not how this Board would have exercised its discretion. After a careful assessment of the evidence, it is our judgment the evidence does not support the conclusion that the decision reached by the employer was a reasonable decision that was reached after a weighing of all relevant in format ion. For these reasons, it is our conclusion that the employer did not properly exercise the discretion conferred by Article 29.1 of the Collective Agreement in rejecting Mr. McCarl's request for a leave of absence. In view of the basis upon which we reach this conclusion, there is no need to address the argument raised by Mr. Law with respect 16 to onus of proof. Mr. McCarl's employment was terminated because he did not accept the relocation option offered to him and his request for a leave of absence was denied. While the Employer need not exhaust all possible options to ensure the continued employment of a person in the situation of Mr. McCarl, the Employer must act reasonably. Here, a leave of absence was an objectively reasonable alternative to discharge which the Employer rejected without reasonable justification. Accordingly, it is our conclusion that the termination of Mr. McCarl's employment was without just cause. We now turn to the question of remedy. After a consideration of all relevant factors, it is our conclusion that the appropriate remedy in this case is that Mr. McCarl should be granted the leave of absence requested and it is so ordered. He is to be reinstated %0 his former position upon the expiry of the leave of absence, conditional upon the reinstatement of his driver's licence. Mr. Cribbie raised concerns about the possible displacement created by the reinstatement of Mr. McCarl, however as this is an academic matter at this point, this issue need not be addressed. We retain jurisdiction in the event that there are any difficulties in the implementation of this 17 decision. Dated at Toronto, this 26 day of April, 1990 S. L. Stewar%- Vice-Chairperson M. Lyon~,/- Member F. Collic~ - Me~er Dissent Re: G.S.B. #1282/89 (McCarl) In this award it is concluded that the issues before the parties can be decided as follows: "If a leave of absence was a reasonable alternative that was improperly denied, then it must be concluded that the employer's failure to avail itself of this alternative and instead terminate Mr. McCarl's employment, was not a reasonable action." (page 12 of award) This Member cannot accept this conclusion. Who is to determine that a leave of absence shall be given to an employee who cannot fulfill the requirements of his job because of a one year driver's licence suspension? Is it Management? Is it a Board of Arbitration? Management made its decision to deny the request for a leave of absence inasmuch as it was deemed to be inappropriate relative to the circumstances and in the context of the operation of Ministry services. Was this an "improper" denial? To accept the tenet or concept set out in the above excerpt at page 12 of the award, it could readily follow that, (a) a {eave of absence is a reasonable alternative for an employee who is required to serve a one year jail term; or (b) a leave of absence is a reasonable alternative for an employee who does not like his job or is not progressing rapidly enough. and who would like to try another employer for a year. Moreover, at page 15 of the award, it is argued that, "In view of the employer's willingness to hold kis job open for him .......... we cannot accept that this is a reasonable basis for the employer to have denied the leave of absence. The evidence did not disclose any particular difficulty that would be created by holdinq the job open, or, for that matter, any other difficulty that would result from the granting of this request". However, the same rationale could be applied to the granting of a leave of absence for the serving of a jail term or trying another job With another employer. Is Management to be deemed unreasonable for failure to grant these requests? In the exercise of its discretion in this case, Management assessed the circumstances and denied Mr. McCarl's request for a one year leave of absence. Is it the Board, then, that should decide whether a leave of absence should be given to an employee who is unable to perform his job because his license has been suspended for a year? In Mailloux, G.S.B. #0087/88 at page 17, the Board stated the following: "The prospect of boards of arbitration striking down management's decisions on the basis that an officer of management failed to conduct a sufficiently thorough investigation, asked himself or herself the wrong question or misdirected himself or herself in some material way to borrow the well-worn phraseology of administrative law, risks converting a collective agreement into an instrument for management by arbitrators. In our view such broad powers of review should not be found unless they are supported by the clear terms of a collective agreement". In the subject case, the provisions of Article 29.1 are very clear. The discretion of the Deputy Minister is.unfettered; and is not qualified in any way as in some collective agreements when " such leave shall not be withheld it may be stated that - ... unreasonably " etc. etc Essentially, and .as further stated in the Mailloux case (P. 17) with reference to the "reasonableness" of manageme~t's decision, "In a case such as this the legal or evidentiary burden is upon the Union. It must establish, on the balance of probabilities, that the Employer has failed to exercise its discretion in a manner that is untainted by arbitrariness bad faith or discrimination". This Member agrees with the concepts cited in the award re the Young decision on page 13. However, there was no evidence of arbitrariness, bad faith or discrimination attributable to Management with reference to Mr. McCarl. It was agreed that he was a good employee. Nevertheless, Management deemed it reasonable that a one year leave of absence should not be given to him over the period that his licence was suspended and during which period he could not perform the normal requirements of his job. Additionally the position of Management was eminently reasonable based upon the evidence, as follows: 1. Rule C-32 (Exhibit 5 - P.4 of award) is clear. Mr. McCarl acknowledged that he was aware of rule C-32; 2. Exhibit 14 sets out the position of the Ministry with reference to matters associated with the loss of a driver's licence; 3. Mr. McCarl agreed that he both knew of and had signed Exhibit 14. The form states. "By signing this Form ADM-P-30, you confirm that you have read and understood the above Conditions of Employment". 4. Management endeavoured to accommodate the circumstances of Mr. McCarl (Exhibit 6); 5. Mr. McCarl declined and requested a leave of absence (Exhibit 7); 6. The request for leave of absence was declined (Exhibit 8). Although not adduced in evidence or expressed in argument, Management has the right to determine "complement" [C.E.C.B.A. 1 8( 1 ) ]; and hence there was no requirement on the part of Management to carry additional staff; or to make additional arrangements to accommodate Mr. McCarl; or to hold a position open for him. Certainly the alternative position offered to Mr. McCarl in Owen Sound was not a palatable one for him; but how reasonable was his decision to thrown away his total length of service with the Ministry in the face of circumstances which he had caused? There clearly was a financial and social penalty associated with the offered position; but Mr. McCarl made the decision to decline. Finally, Management has the right to establish rules, policies and practice pertinent ko its operations. In this case where Ministry vehicles are operated, a driver's licence is essential and this fact is made abundantly clear to all employees, including the alternatives in the event that the ~licence is lost. Very clearly the language of Article 29.1~is discretionary. It is agreed that it must be administered without discrimination, bad faith and with reason. In the view of Management in this case, a leave of absence for one year while awaiting~the termination of a driver licence suspension was not a reasonable way to deal with this matter. The decision, surely, is a decision which Management has the right to make. Absent bad faith, discrimination, arbitrariness and no clear evidence of lack of reasonableness, the Board clearly exceeds its jurisdiction in "second-guessing" or qualifying Management decisions. The language of Article 29.1 is clear. No evidence was produced to demonstrate that the denial of the leave of absence was improper. The fact that a leave of absence was a possibility to cover the one year licence suspension does not make Management's decision unreasonable. This Member would have dismissed the subject grievances.