HomeMy WebLinkAboutTysick 16-08-25IN THE MATTER OF AN ARBITRATION
BETWEEN:
ONTARIO LOTTERY AND GAMING CORPORATION
c.o.b. as OLG SLOTS AT RIDEAU CARLTON
(the employer)
and
ONTARIO PUBLIC SERVICE EMPLOYEES UNION, LOCAL 495
(the union)
AND IN THE MATTER OF the grievance of Jason Tysick
Before: Daniel Harris
Heard at: Heard in Ottawa on January 7, February 26, April 4, April
5, August 16 and August 18, 2016
Decision Date: August 25, 2016
Appearances:
For the employer: Trevor Lawson, Counsel, and others.
For the union: Morgan Rowe, Counsel, and others.
AWARD
The Proceedings
1. This is a grievance filed by he Ontario Public Service Employees Union, Local
495 on behalf of Jason Tysick, the grievor, against the employer’s refusal to
return him to work. The employer is the Ontario Lottery and Gaming Corporation
at the OLG Slots at Rideau Carleton.
2. The grievor has been charged with a number of criminal offenses in relation to
alleged domestic assaults against his spouse, the complainant. She has been
referred to throughout these proceedings as “B”. Both the grievor and B are
employed by the Ontario Lottery and Gaming Corporation at the OLG Slots at
Rideau Carleton. This decision deals with the merits of the grievance.
The Facts
3. The grievor was sgiven a leave of absence without pay both because of the
employer's concerns for B’s safety and as a result of undertakings given by the
grievor to the criminal Court, which include that he not come into either direct or
indirect contact with B at the employer's premises.
4. The grievor is employed as a security officer at the employer's premises in
Ottawa. He has been employed in that capacity since March 2000. Security
officers work one of the following shifts: there are two day shifts commencing at
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6:30 AM and 8:30 AM. There is a swing shift that commences at 2:30 PM and
two overnight shifts, one which commence at 8:30 PM and one which commences
at 10:30 PM. The grievor was scheduled on the swing shift, which commenced at
2:30 PM and finished at 11:00 PM.
5. The schedules are arrived at in accordance with “Letter of Understanding #2 –
Scheduling”, which reads as follows:
The parties discussed schedules during negotiations and the need for the
employer to operate its business efficiently while ensuring that employees are
able to maintain a personal/family life.
The Employer agrees that a schedule that is supported by the employees who
work it is the best business practice. The Union acknowledges that scheduling
is complex and impacts employees in individual ways.
Therefore, it is agreed that the Union will select five (5) members: the Local
President, two (2) full-time employees, and two (2) part-time employees, to
discuss scheduling issues and, in particular, to discuss ways and means of
implementing the use of static and rotational shifts for employees by seniority
based on eight (8) and ten (10) hour shifts for full-time employees. It is
understood the part-time employees can be scheduled for shifts less than eight
(8) hours if necessary, but not less than six (6) hours.
The parties agree that Management Labour Conferences are an appropriate
venue for discussing scheduling process issues. This includes, but is not
limited to, assignment of shifts to part-time employees, assignment of
overtime, the call in process, etc.
6. The process followed by the parties is that the employer provides to the
scheduling committee its required parameters for the schedule for the coming
year. That would include the number of employees required for certain times per
day each week. The committee then works together to create a balanced schedule
for the full-time employees. The proposed schedule is returned to management,
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which either approves the schedule or returns it to the committee with its
concerns. Once the shift lines are established, the full-time employees bid for
those shifts. The grievor participated in that process and exercised his seniority to
secure the swing shift for 2016.
7. It is alleged, inter alia, that on or about March 18, 2015 the grievor assaulted B
and threatened her with death. B advised her supervisor of the situation. His email
to the Human Resources coordinator, Jessica Myers, dated March 20, 2015 reads
as follows:
She told me that her partner made threats to her, he was "picked up" by the
police and released. She had a "keep away"? (sic) court order put against him.
His name was Jay, he worked here in security but was currently off with a
bad back. She didn't think he would come here but didn't know for sure and
wanted to let us know that was the situation.
8. The employer completed a Workplace Violence/Harassment Assessment, which
included handwritten notes that indicated that the grievor’s swipe card had been
deactivated; the on-site OPP had been notified and the notation “potential
alternate shifts upon RTW” was also included.
9. The Human Resources Coordinator for the Rideau Carleton site is Tyler Parsons.
He testified that he became aware of the situation on March 24, 2015 upon his
return from vacation. He said that the employer was aware of the domestic
relationship between the grievor and B. As a result, because their duties
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overlapped, they had previously been given written instructions with respect to
potential conflicts of interest.
10. B’s shift begins at 5:30 and notionally ends at 1:45 PM. She works in two
capacities, being as a “count attendant” and a “count supervisor”. The "count"
refers to the actual counting of the funds from the slot machines. What is called
the drop begins with security officers securing a bank, or aisle, of slot machines.
The count attendants retrieve the cassettes containing the monies deposited by the
players and transport them to the count room, under the protection of a security
officer. Once all of the machines are emptied, the count proceeds in the count
room. Access to the count room is controlled by a security officer at the podium.
Because the grievor's duties, as a security officer, and B's duties overlapped, they
were not allowed to work in a situation that might result in a conflict of interest.
11. Notably, the evidence is undisputed that B’s shift might run past 1:45 PM because
the count must continue until it is balanced with the data produced by the slot
machines. It was B's evidence that a count would go longer than her shift end time
as many as two to three times per week. That was particularly the case when new
machines were introduced for use in the count. The latest she has stayed is 7 PM.
She said there was no way to predict whether she would have to stay late or how
long past her regular shift end time the count might run. The account attendants
are not permitted to leave the secure area until the count has been balanced. As an
account supervisor, B had enhanced duties.
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12. Although B is a part-time employee, she worked an average of 35.5 hours per
week.
13. Mr. Parsons testified that when he first learned of the situation between B and the
grievor the grievor was off on sick leave. Mr. Parsons did not have any specific
details as to the "keep away" order. On April 13, 2015 he received information
that the grievor was constrained by a Court order to not communicate directly or
indirectly with B and to not attend her place of employment. This information had
come from Jim Renwick an Investigator with the Alcohol and Gaming
Commission of Ontario. Although Mr. Renwick said he would provide the
employer with a copy of the undertaking given to the Court by the grievor, he did
not do so. The undertaking given by the grievor to the court as a condition of his
release is dated March 19, 2015 and reads in part as follows:
In order that I may be released from custody by way of (a promise to appear
or recognizance entered into before a peace officer or an officer in charge), I
undertake to
. . .
Abstain from communicating directly or indirectly with [“B”] or from going
to her place of residence . . . or her place of work.
14. Mr. Parsons testified that it was not necessary to deal with the situation between B
and the grievor until the grievor was scheduled to return to work from his medical
leave.
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15. By May 27, 2015 the grievor was cleared medically to return to work. However,
given the terms of his release, which precluded attendance at B’s and his place of
work, the employer advised him that he would not be permitted to return to work.
The grievor protested this by an email dated June 1, 2015 saying, in part, “and
because of the uncertainty of her finish times in odd hours are going to prevent me
from ever returning? A little more of an explanation is in order. My lively hood
(sic) is at stake.” By letter dated June 10, 2015 the employer confirmed its view
that the undertaking precluded the grievor's return to work and also confirmed that
the employer had placed the grievor on an unpaid leave of absence to allow him to
attend to his legal matter. That correspondence also asked whether the grievor had
applied for a variance to the undertaking and whether there were any scheduled
court dates that could facilitate a return to work.
16. By letter dated July 21, 2015 the employer indicated to the grievor that it was
extending an unpaid leave of absence until August 31, 2015 notwithstanding the
collective agreement’s provisions that limited personal leave of absence to 40
hours or five days. That correspondence also indicated that, should the grievor's
undertaking to the court change, the grievor’s eligibility to return to work would
be reviewed by the employer at that time.
17. The grievor's counsel on the criminal matters made an application to vary the
undertaking on August 31, 2015. Its submission to the court included the
following:
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In communicating with the president of the OPSEU the Union representing
the Applicant, we were advised that the Applicant and the complainant could
be on work schedules where the parties would not have to come into contact
on the job. The Applicant could remain away from the area where the
complainant works on the premises. It is a large building. The employer has
made it clear that there would have to be a change in the Undertaking to
allow for the Applicant to come back to work.
18. The local union president, Carlo Costanzo, gave evidence in these proceedings in
which he said that he did not recall saying to defense counsel that the grievor
could remain away from B because it is a large building. He also did not recall the
following submission made to the court by defense counsel on behalf of the
grievor:
The OPSU (sic) local president has indicated that the employer cannot make
it impossible for the Applicant to work, and accommodations have to be
made by the employer to allow for employment.
In his evidence in cross-examination, he agreed that the employer would have to
abide by a Court order.
19. The grievor's undertaking to the court was varied by permitting the grievor to
attend the workplace “for work-related purposes and as long as the employer has
taken all reasonable and necessary steps to ensure that the parties . . . do not come
in either direct and/or indirect contact with each other at their common
workplace.”
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20. The instant grievance was filed September 21, 2015. By letter dated September
17, 2015 the employer had reiterated to the grievor its position that he would not
be allowed to return to work That letter included the following:
As indicated in all previous correspondence; dated June 10, 2015 June 29,
2015 and July 21, 2015, we expect you to provide us with regular updates
regarding your current legal situation, including any new or additional
charges. Upon the receipt of any new information, your eligibility to return to
the workplace will be reviewed by OLG.
21. The employer's evidence focused on the constraints against keeping the grievor
and B from coming into direct or indirect contact with each other in the
workplace. It established that there was a real likelihood that B’s work schedules
could, and often did, extend over all of the shift combinations available to the
security officers. It also established that security officers have, and must have,
access to the entire OLG operation in order to protect the security of OLG’s assets
and the safety of the patrons and other employees. It also established that there are
common areas on the premises frequented by all employees. Those areas include
the employee parking lot, the single employee entrance/exit door, the
locker/change rooms and the lunchroom. These latter areas are accessed by the
hallway used by all employees, from which the security office is also accessed.
22. In its evidence, the union was unable to provide any realistic suggestion as to how
the employer could ensure that the grievor and B would not come into either
direct or indirect contact.
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The Submissions of the Parties
23. The employer submitted that the legitimacy of the employer’s decision not to
allow the grievor to return to work falls to be determined on the basis of the
undertakings given by the grievor to the Court to secure his release from custody.
Those undertakings were given March 19, 2015 and August 31, 2015. It said that
the evidence established that it was not possible for the grievor to return to work
without the risk of direct or indirect contact with B, which would be contrary to
the Order of the Court.
24. The union relied on a line of authority that examines the obligations of an
employer when it unilaterally decides to suspend an employee who has been
charged with a criminal offense. These cases deal with such issues as the
reputational interests of the employer. While those interests are present here, they
are not the crux of the matter before me. I have not found those authorities to be
of assistance because they are not analogous to these circumstances. Here, the
grievor, certainly initially, gave an absolute undertaking to the Court that he
would not attend B's place of work. It was on the strength of that undertaking that
he was released from custody on a Promise to Appear. The variance to the
undertaking, for the reasons set out below, did not change that. The cases relied
upon by the union do not involve such a situation.
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Analysis and Decision.
25. There can be no doubt that the grievor undertook to the Court on March 19, 2015
that he would not attend B’s workplace. It is difficult to understand his
indignation evident in his email of June 1, 2015 that he would not be permitted to
return to work. The employer's obligation to honor the Order of the court could
not be more clear. In addition, the employer granted a leave of absence, without
pay, to permit the grievor to deal with his self-imposed Court-ordered inability to
come to work.
26. On August 31, 2015 the Court varied the conditions of his release to permit him to
attend at B's workplace and his as follows:
For work-related purposes and as long as the employer has taken all
reasonable and necessary steps to ensure that the parties . . . do not come in
either direct and/or indirect contact with each other at their common
workplace.
This exception, inserted into the terms of the grievor’s release, was drafted by the
Crown.
27. I agree with the employer that the legitimacy of the continued refusal to allow the
grievor to return to work after August 31, 2015 is a function of whether or not the
employer could comply with the new terms upon which the grievor might attend
work. That is, was it able to take all reasonable and necessary steps to ensure that
the grievor and B would not come into either direct or indirect contact? In my
view, it could not.
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28. The evidence was clear that B's shift end time was unpredictable and often
overlapped all of the shifts regularly worked by security officers. Those shifts
were awarded through a seniority-driven bidding process required by the
collective agreement. The union's only suggestion, both to the employer at the
time, and at the hearing, was that the union and the employer should meet to see if
there was a different start time that might be made available to the grievor outside
of the regular schedule. It said that employees being medically accommodated
have had such an arrangement extended to them. The instant matter does not
engage the employer’s duty to accommodate under the Ontario Human Rights
Code. Further the union did not have any specific suggestions as to how such an
arrangement might be implemented, nor did it seek to have a formal meeting with
the employer. Clearly, the suggestion that the grievor be given a special start time
would impact other full-time employees and create potential additional costs to
the employer in terms of overtime or backfilling by part-time employees, who are
guaranteed six-hour shifts. I find that to impose on the other employees and
generate additional costs for the employer would not be reasonable. In the
circumstances here, there was no regular shift that the grievor could be put on
without a real and substantial risk that he would have direct or indirect contact
with B.
29. The union's position is that it was under no obligation to help to fashion a remedy,
and it was the employer’s responsibility to come up with a solution. That
submission relied upon the line of cases where employers have unilaterally
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imposed a suspension because an employee has been charged with a criminal
offense. As set out above, that is not the case here. The grievor put himself out of
reach of employability by the employer by agreeing to the undertakings in order
to be released from custody. In response, the employer granted him a leave of
absence without pay that exceeded the maximum length of such leaves set out in
the collective agreement. There was some suggestion in the union’s submissions
that the grievor ought to have been given a leave of absence with pay. Again,
there is no reason for the employer to bear such a cost when the grievor himself
has created the conditions that prevented him from working.
30. Given that one could not predict whether or B's shift end time would encroach
upon any shift that the grievor might be placed on, and the common areas that all
employees had the need to access, it was not possible for the employer to ensure
that B and the grievor would not come into direct or indirect contact while at
work. Further, given that security officers such as the grievor have, and must
have, the complete run of the premises in order to protect the employer's assets
and the safety of the patrons and other employees, it would not be possible for the
employer to constrain the actions of the grievor in any meaningful way to ensure
that he did not take it upon himself to engage in direct or indirect contact with B.
31. In all of the circumstances, and having considered carefully the evidence before
me, and the submissions of the parties, I find that it was not possible for the
employer to ensure that B and the grievor would not come into direct or indirect
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contact in the workplace. Accordingly, I find that the grievor could not have been
returned to work without breaching the terms of his release by the court. The
grievance is dismissed.
Dated at Toronto this 25th day of August 2016
_________________________________________
Daniel Harris, Sole Arbitrator