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HomeMy WebLinkAbout1989-1842.Byrne.91-03-25"t : ONTARIO EMPLOYES DE LA COURONNE CROWN EMPLOYEE$ DE L 'ONTARIO GRIEYANCE C,OMMISSION DE SETTLEMENT REGLEMENT BOARD DES GRIEFS r~O, RUE DUNDAS QUEST, BUREAU 2~, TORONTO (ONTAriO,. M5G tZ8 F~CS~MiLE,'TEL~CO~tE : (~6) 325-~396 1842/89 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN OPSEU (Byrne) Grievor . - and - The Crown in Right of Ontario (Ministry of Correctional Services) Employer BEFORE: P. Knopf Vice-Chairperson J. Laniel Member D. Montrose Member FOR TH~ M. Bevan GRIEVOR Grievance officer Ontario Public Service Employees Union FOR THE R. Perry EMPLOYER Counsel Mathews, Dinsdale & CLark Barristers & Solicitors HEARING: August 13, 1990 January 18, 1991 DECISION This is a discipline case. The Union grieves the fact that the Griever, ~Iro Michael Byrne, was given a one-day suspension. The basis of the suspension is set out in the letter of discipline issued to the Griever and reads as follows: That while assigned CPR training duties on October 27, 1989, you acted in a manner Ministry of Correctional Services by making uncomplimentary remarks which affected the professional image of the Vanier Centre and its staff. The background which gives rise to the grievance is as follows. The Griever has been employed with the Ministry since 1987. He began at the Ontario Correctional Institute as a Corrections Officer. He then moved to the Vanier Centre and, at the time of the grievance, was working as a Recreation Officer. Part of his duties includes the teaching of CPR (cardiopulmonary resuscitation) to Ministry staff and to other, clients of the Ministry. On October 27, 1989, the G~ievor was scheduled to conduct a CPR course for some Ministry employees as well as three employees of the Elizabeth~ Fry Society of Peel who are residential counsellors at the Marjorie Amos House The Board heard the evidence of two o5 the three w~th ~tr. ~yrne, Their evidence was lengthy and detailed. While there were some discrepancies i'n the~u specific recall of certain items, these differences are more attributable to the passage of time and the frailty of human memory. On the whole, their evidence was extremely credible and forthright. However, oiven our ultimate conclusion and given the sensitive and confidential nature of much of their evidence with regard to the Ministry, the Institutions, the staff and the inmates in question, we shall only reveal as much as is necessary for an understanding of the resolution of this grievance. The three staff members of the ~arjorie Amos House attended at the Vanier Centre for the CPR course early in the morning of October the 27th. Due to some administrative foul up which is not in any way attributable to the Grievor, the young women were kept. waiting for some time before the trai~ing began. They mistakenly seemed to have blamed the Grievor for this. Once the training was underway, they formed a very negative impression of the Grievor. They felt that he.was teaching in a very unprofessional way and ~ot giving them the benefit of the full course. However, it must be emphasized that the Ministry has not disciplined the Grievor for the way he conducted the course. Indeed, it was conceded at the hearing that the three participants would not be qualified to assess the Grievor's methods' of teaching and it was conceded that the Grievor has a vast amount of experience and is trusted by the ~inistry able and qualified teacher. The only purpose of raising this point in the Award is to illustrate that the three staff members from Marjorie Amos House felt, rightfully or wrongfully, that they were not being given proper or adequate training. The complaints of the Marjorie Amos staff members that gave rise to concern for the Ministry are the discussions and conduct of the Griever during thc breaks in his teaching of that CPR course. The only aspects of this conduct which we shall deal with are the ones mentioned in the letter of discipline to the Griever. Both witnesses for the Ministry mentioned feeling very upset about an incident which occurred while the Griever was conducting them on a tour through thc Vanier Centre. At one point they met a nurse who was checking on some Young Offender in a holding cell. The evidence of all witnesses is consistent that on meeting the Griever and his three guests, the nurse asked the Griever if, during the course of the CPR training, he had shown them how they administer CPR treatment to Young Offenders. The nurse then used her foot and gestured as if to stomp on a Young Offender's chest. It is admitted by all that the Griever laughed at this incident but he himself had not instigated it. As a resuit of the complaints, the nurse was issued a verbal warning which appears on her file for this conduct. The three visitors also clearly feel that the Griever should bear some responsibility for the incident. The second item of concern which formed the foundation of the discipline was derogatory remarks that the Griever was said to have made against a supervisory officer. It was alleged that the Gri'evor had made disparaging remarks about how that person had gained his promotions and that the Griever had used obscene language in describing that officer. The Griever denies these allegations completely. Further, both Ministry witnesses testified that the Griever had made comments about the sexual behaviour of one of the female residents and about lesbian activities at the facilities. The Griever admits that he did talk about the one inmate when asked specifically by the course participants about her. Apparently, she had been a client of the Marjorie Amos House previously and the counsellors wanted to know how she was doing at the Vanier Centre. The .Griever testified that he wanted to give a "totally well-rounded picture about how she was doing" at the Vanier Centre and so proceeded to describe both her quality of innocent activity in the gymnasium as well as her sexual conduct to the visitors. Further, he admits to having mentioned lesbian activity elsewhere in the facility to the course participants. The Ministry witnesses also testified that they were offended by the Griever indicating that the staff at the Vanier Centre did not "believe in counselling" in the same way as that philosophy is promoted at the Ontario Correctional Institute. The Griever admitted to having a conversation to that effect with these paople and explained why and how he came to that opinion. Another area of concern for the Ministry and its witnesses was comments the Griever made to the course participants about the use of force and "pressure points" to subdue inmates. Apparently, they ~ere discussing the different ways one uses to control inmates. The Griever explained to the'Board that it is part of Correctional Officers' training to be taught the use of pressure point techniques. However, he also admitted, as was alleged by the Ministry witnesses, that he told thom that at times excessive use of force is used at the Vanier Centre. Finally, the Ministry Witnesses complained about the Griever talking in a generalized way about his lack of respect for the Ontario Correctional Institute and its - 5 - phi[osoBhy and the resulting effects on the inmates as well as Young Offenders. Again, the Griever admibted in substance to have made those remarks. The letter o~ ~iscipline issued to the Griever makes it clear that the Ministry found substance in all the allegations made against him except with regard to the teaching of thc CPR course itself. The letter then concludes: In assessing the disciplinary penalty to be leveled against you I have taken into consideration that you have been employed by the Ministry for two years and that your performance has been acceptable. I have also taken into consideration the fact that you were recently verbally counselled about confidentially by your supervisor, Bob Rootes during his investigation of a report of a breach of confidentiality relating to sexual activity by the female residents. Your lack of professionalism in making uncomplimentary remarks brings into question your commitment to the goals and objectives of this Ministry° I have decided to remove you from employment for one day without pay, that day being November 16, 1989. In addi.tion I must advise you that your action is considered to be very serious and that any further misconduct on your part can result in discipline up to and including dismissal. The Deputy Superintendent a~t Vanier Centre at the time was Mary Stewart. She explained that the "verbal counselling" referred to in tho letter of discipline relates to an unsubstantiated concern that had been mentioned to the Griever by thc Recreation ~anager. There was no disciplinary action taken and Ms. Stewart conceded that the Griever may not have perceived the discussion as "counselling". Although a great deal of evidence was called regarding the form of the inuestiqation and the conducting of thc disciplinary meeting, as welt as the adequacy of notice t0 the Griever regarding the discinline, the Griever's candid evidence regarding this in cross-examination made it clear tsar the evidence did not substantiate any kind of impropriety that may vitiate the discipline. Hence the Union di.d not rely upon this in final argument and the' evidence need not be recited herein. The Argument Counsel for the Ministry submitted that the case raises three issues. First, whether the Griever's conduct amounted to what was alleged against him. Second, if the allegations were upheld, whether they amount to just cause for discipline. Third, if the conduct was disciplinable, whether a one-day suspension was appropriate. It was stressed that the Griever's remarks and conduct, made while he.was assigned.~·responsibilities as an employee, had a negative effect on the course participants and left a bad impression of the Ministry. It was said that the three course participants amounted to a captive audience within the Griever's control during the course. The Griever, while ~iving the course should be held to the standards of a professional and ought to ha~o conducted himself as such. Conceding that the Grievo~' may not have intended to have left.a bad impression, .it was argued that his intentions are irrelevant. We were urged to accept the evidence of the Ministry Qitnesses as credible and reliable, given the fact that they had never met the Griever before and could not possibly have any grudge against him. It was said that the evidence ctea~ly shows that the three-course participants were disturbed by the 'Griever's comments and behaviour. In all, it was said to amount to proper cause for discipline. Reference was made to the principles, but not the facts in the following cases: Wall and ~linistry of Transportation & Communication, GSB File 1666/87 (Roberts), June 6, 1988, Sharpe and Liquor Control Board of Ontario, GSB Files 56/84 and 58/84 (Swan), ~{arch 20, 1986, Bedford and Ministry of Health, GSB File 2459/87 (Draper) July i3, 1988, Amoco Fabrics Ltd. (1984), 17 L.A.C. (3d) 425 O'Shca and ~inistry of the Attorney General, Corrections Branch (1981), 3 L.A.C. (3d) 140 (Weiler). It was argued that the Griever's conduct and words amount to a deviation from the standards an employer can demand from an employee and that his conduct and language should be seen as a reckless disregard for his duties and which undermine the authority and reputation of the Ministry, its institutions and its staff. Hence, it was argued that the one-day suspension ought to bo upheld. The Union argued that the Griever should not be disciplined for any comments he made during breaks and for statements he made outside the walls of the institution. It was said that the evidence here amounts to simple "shop talk" between the Griever, talking as a private individual to three other people during break times. It was stressed that ~he Ministry had conceded that the relevant discussions and allegations took place during break times either in or outside the institution and not during the teaching of the CPR course itself. Further, it was argued that anything the Griever said was the kind of talk that one would expect between Ministry employees talking about the institution, the inmates or the Ministry. It was argued that no one should be disciplined for making disparaging remarks about one's boss. It was suggested that if discipline was upheld for that, the GSB would be flooded with cases of employees who had made similar remarks. Further, it was stressed that the main causes of concern raised by the two witnesses were not factors that the ~]inistry relied upon in imposing discipline. The Ministry's witnesses were most concerned about the way the course was taught and the foot stomping incident of the nurse. However, the Ministry takes nc issue with the way the Grievor taught the .course and conceded that the Grievor was not responsible for the actions of the nurse, Thus, ~t was said that the Ministry has over-reacted in imposing such a severe penalty on the Grievor. Further, it was stressed that the Grievor had no idea that he was upsetting the course participants and indeed they conceded that they made no indication to him throughout' tSeir contact that he was offending them~ -~t was a~gued that the course participants may not have liked the philosophy that the Grievor articulated nor may they have liked him. However, he ought not to suffer discipline as a result of this. Finally, it was argued that the Ministry based the one-day suspension on-a factor of progressive discipline in that it relied uDon. a pr~eviou$ verbal warning given to the Grievor. However, it was stressed that the verbal warning was not part of the Qrievor's record and that he may not have recognized.it as such. Thus, it was. said that the p~enalty ought to be reduced if .it was based upon progressive discipline. In conclusion, it was argued that no penalty o~ght to ~e imposed or, in the atterqative, that it ought to be reduced. The Decision~' Let us begin by emphasizing that we accept the Ministry's witnesses as credible and reliable. They had no motivation to exagDerate or fabricate their evidence. They appeared to be caring and concerned individuals who rai'sed their complaint as a result of a f'irm belief that the Grievor was not acting in an appropriate way for his position. While there was very little dispute between their evidence and that of the Grievor, where it does differ we would prefer their evidence over the Gricvor's. [~owever, we also wish to emphasize that ~c found the Griever to be a very candid witness. He was prepared to admit several factors which were damaging to his own cause and we commend him for that. Thus, we are basing our Award simply upon the admissions made by the Griever and although we believe the ~inistry witnesses, we a~e prepared to accept and adjudicate solely upon what the Griever himself admits to have been his conduct. Let us then take what the Griever admits to have done and said. He admits to have said that Vanier Centre, or at least some of its staff, do not believe in the Ministry's philosophy of rehabilitation or treatment and to have implied a contrary philosophy. Further, he admits to have said that "excessive force" has been used at the Centre for the purposes of subduing inmates. Further, he admits to have, in response to a question from the visitors, described the sexual activities of one inmate as well as referring to other sexual activities on the facility. Finally, he admits to making disparaging remarks about Young Offenders and the treatment of inmates and Young Offenders at the Ontario Correctional Institute. it is important to realize the context of those admissions. These statements were made to three women who were essentially visitors and invitees to the Vanier Centre at the time. They were not Ministry employees. Instead, they were employees of the Elizabeth Fry Society of Peel County. While they may be professionals in a rclatoJ field, they cannot be considered to be in the confidence of the Ministry or to be entitled to the confidentiality of the Ministry. There is no justifiable reason while any of these comments should be made to anyone outside the Ministry. As was said in the Ministry of Attorney General, Corrections Branch case, supra, page 162: .... there are several, dimensions to an employee's duty of leyalty in the context of public criticism, of his employer. An employee is expected to give his employer both loyalty a~d discretion, to serve his employer in good faith and fidelity. Conversely, an employee does not fulfil his duty of loyalty if he deliberately does something which is prejudicial or likely to be prejudicial to the interests or reputation of his employer. [Emphasis added] Ail the comments that the Griever admitted to have made must be seen to have been prejudicial to the interests and reputation of both the ~inistry, the institutions he was disparaging and the'staff of those institutions. As such, he fundamentally breached his responsibilities of fidelity to the Employer. This responsibility lies to any employer but it is of particular interest in corrections as was recognized again in thc Ministry of the Attorney General, Corrections Branch case, supya,_a.t page 167: .... Management of corrections is a very sensitive area of Government. The public is very interested in any suggestion that the Corrections Branch is not fulfilling its role in the criminal justice system. When the Corrections Branch an~ [ts management are publicly vilified by ~embers of its own line .staff, the public sense of security is undermined.~ In speaking as he did to the members of the public about the Ministry, the institutions and the staff, the Griever seriously undermined the reputation and the perception that the public would have of the Ministry and its institutions. Had he made exactly the same remarks .to a fellow staff member, this may well h~ve been considered "shop talk" 8ut the fact that hc made these remarks to outsiders and members of the public is of critical importance to this case and ca~not be ignored. It follows from everything 'that has been said that the Griever himself has admitted to making several statements which are detrimental to the reputation and interest of his employer. This is serious misconduct, a breach of duty of fidelity to the Employer and certainly worthy of discipline. The question now becomes what discipline is appropriate. In determining that a one-day suspension was appropriate, the Ministry took into account more than the factors which we have listed above. The Ministry also took into account that the Griever had made disparaging remarks against a supervisory officer, was in complicity with the activities of the nurse giving an inapproDriate display of CPR for Young Offenders, and the fact that there had been a previous verbal discipline for a related offence. We must say that we find that none of these factors was properly taken into consideration. The evidence does not support the contention that the Griever was issued a disciplinary verbal warning previously. Further, we would not condone discipline being issued against an employee for simply "bad-mouthing" his boss in circumstances such as these. Finally, the Griever cannot be held responsible for the inappropriate conduct of another employee simply because he laughs at a joke that was in very poor taste. Hence, these are all factors which ought not to have weighed agailnst the Griever in the assessment of penalty. However, even when those three factors are discounted, we are unable to conclude that a one-day suspension is inappropriate under these circumstances. On the contrary, we find a one-day suspension to be very reasonable under the circumstances. The Gr[evor committed what amounts to a significant breach of confidentiality and fidelity to his employer. He seriously undermined the reputation of the Ministry and has had a profound and damaging effect upon three members of the public. Under those circumstances, a one-day suspension is quite reasonable and we see no reason to interfere with the penalty. However, the i6~'[er of discipline dated November 9, 1989 contains reference to the items listed above which ought not to have been considered cause for discipline. As such, ~hey should not remain upon his file. Hence, we order the Employer to remove such references from the disciplinary file. We suggest that the letter of November 9th be removed from the file and another substituted which removes all references to Mr. Oliver', the incident with the nurse and the previous counselling.. We retain jurisdiction to assist the parties if there is any difficulty with the revision of the record but we sincerely hope that our further assistance is not required. However, the substance of the grievance is denied. DATED at Toronto, Ontario this 25th day of March 1991 . Paula Knopf ~ ViCe-Chair "I Dissent" (without written reason) J'. Laniel - ~gembeu D. Mon~'rose - Member