HomeMy WebLinkAbout1991-2248.Black.95-02-13 ~, ONTARfO EMPLOY~-$ DE LA COURONNE
· . CROWN EMPt. OYEES OE L'ONTARtO
GRIEVANCE COMMISSION DE
SE'I'I'LEMENT Rl GLEMENT
BOARD DES GRIEFS
180 DUNDAS STREET WEST, SUITE 2100, TORONTO ON MSG 1Z8 TELEPHON£/T~L~-PNONE : ¢416) 326-1388
180, RUE DUNDAS OUEST, BUREAU 2100, TORONTO (ON) MSG lZ8 FACSIMILE/T~I.~COPIE : (416) 326-1396
GSB# 2248/91
OPSEU# 91E400
Under
THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT
Before
THE GRIEVANCE SETTLEMENT BOARD
BETWEEN
OPSEU (Black)
' Grievor
- and -
The Crown in Right of Ontario
(Ministry of Housing)
Employer
BEFORE: N. Dissanayake Vice-Chairperson
M. Lyons Member
F. Collict Member
FOR THE C. Flood
UNION Counsel
Koskie & Minsky
Barristers'& Solicitors
FOR THE A.'Tarasuk ~
~MPLOYER Counsel
Smith, Lyons, Torrance, Stevenson & Mayer
Barristers & Solicitors
HEARING June 4, 1992;October 15, 16, 1992;November 12, 13,
19, 1992;December 7, 1992;March 1, 3, 1993;April
16, 21, 26, 27, 28, i993;May 10, ll,1993;September
14, 16,1993;October 20, l193;December 9, 15,
1993;February 8, 15, 25, 1994;May 16, 1994;and
June 15, 1994
DECISION
This is a grievance whereby Mr. Morgan Black claims that
he was unjustly dismissed. The grievor'cor~menced employment
with the Metro Toronto Housing Authority (MTHA) on December
17, 1990 as a mobile officer. In that position he performed
numerous security duties for the MTHA in relation to several
of its properties within his region.. His position was
essentially that of a security guard, patrolling several MTHA
properties in a MTHA vehicle. His employment with the MTHA
was terminated effective December 13, 1991, just four days
sho'rt of the first anniversary of his hiring.
The hearing of this grievance took 26 hearing dates,
spanning over a period of more than two years. The Board
heard from fourteen witnesses, most of whom were examined and
cross-examined at length. A total of 105 exhibits were filed
with the Board.
It is common ground that at the time of the grievance,
the union had been certified for a bargaining unit, of which
the grievor was a member, and was in the midst of negotiating
its first collective agreement with the MTHA. Thus at all
relevant times, there was no collective agreement in
existence. At the commencement of the hearing, in response to
a question from the Vice-Chairperson, counsel for the employer
stated that in the circumstances the Board derived its
· jurisdiction from the Crown Employees Collective Bar~ainin~
Ac__~t to determine this grievance. However, later in the
hearing when the union took the position that the grievor was
not on probation at the time his employment ceased, the
employer counsel advised the Board that it had conceded
jurisdiction only because it wished to have the Board decide
the merits of~the grievance on the basis that the grievor had
been released from probationary employment and that since the
union was claiming a disciplinary discharge and full just
cause protection, it was withdrawing its concession of
jurisdiction.
As a result of all of this, the parties led evidence and
made submissions on two fundamental issues.
The jurisdiction of the Board
The employer takes the position that in the absence of a
collective agreement the Board lacked jurisdiction to hear and
determine this grievance. As a general matter, the Board's
jurisdiction must be derived from the collective agreement or
the Crown Employees Collective Bargaining Act or both. In
this case, since no collective agreement was in existence, the
Board's jurisdiction, if any, must be derived from the Act.
The relevant provisions of the Crown Employees Collective
Bargainin~ Act read:
4
18(2) In addition to any other rights of grievance
under'a collective agreement, an employee claiming,
(a) that his position has been improperly
classified;
(b) that he has been appraised contrary to
the governing principles and'standards;
or
(c) that he has been disciplined or dismissed
or suspended from his employment without
just cause,
may process such matter in accordance with the
grievance procedure provided in the collective
agreement, and failing final determination under
such procedure, the matter may be processed in
accordance with the procedure for final
determination applicable under section 19.
19.- (1) Every collective agreement shall be deemed
to provide that in the event the parties are unable
to effect a settlement of any differences between
them arising from the interpretation, application,
administration or alleged contravention of the
agreement, including any question as to whether a
matter is arbitrable, such matter may be referred
for arbitration to the Grievance Settlement Board
and the Board after giving full opportunity to the
parties to present their evidence and to make their
submissions, shall decide the matter and its
decision is final and binding upon the parties and
the employees couered by the agreement.
23.- (1) Where notice has been given by the
employee organization under section 8, the
conditions then in effect applicable to or binding
upon the employer, the employee organization or the
employees which are subject 'to collective
bargaining within the meaning of the Act shall not
be altered without the consent of the employer, the
employee organization or the employees, as the case
may be.
Counsel for the employer submits that sections 18(2) and
19(1) of the Act require the existence of a collective
agreement as a condition precedent to the Board's jurisdiction
to hear and determine a dispute between the parties. It is
pointed out that section 18(2) states that an employee "may
process such matter in accordance with the grievance procedure
provided in the collective agreement" (emphasis added) and
that such dispute may be directed to the GSB pursuant to
section 19 only "failing final determination under such
procedure" (emphasis added). Counsel relies on the emphasized
phrases as indicative that the provision envisages the
existence of a grievance procedure under a. collective'
agreement as a condition precedent to the valid referral of a
grievance to the GSB. As for section 19(1) of the Act,
counsel points out tha~ the Board's jurisdiction is to
determine differences between the parties "arising form the
interpretation, application, administration or alleged
contravention of the agreement ...". Thus it is submitted
that in the absence of a collective agreement that source of
jurisdiction also could not be available.
The union's position was that on the particular issues
enumerated under section 18(2), an employee is given an
unconditional and unrestricted right to grieve and to refer
the dispute to the GSB. Counsel submits that this statutory
right to refer grievances on the specific issues to the GSB is
in addition to and independent of any rights employees may
have under a collective agreement.
The Board was faced with this identical jurisdictional
issue in Re Horne, 1880/89 (Simmons). The arguments made
before that panel were almost identical.to those made before
us. In a unanimous decision the Board reviewed at length the
decisions in Re OPSEU and the Crown in Right of Ontario et at
(1983) 44 O.R. (2d) 51 (Div. Ct.), Re OPSEU ~nd The Oueen in
RiGht of Ontario et al, (1982) 40 O.R. (2d) 142 (Div. Ct.) and
Re A.G. for Ontario and Keeling et al, (1980) 30 O.R. (2d) 662
(Div. Ct.) Starting at p. 13 of the decision, the Board
wrote:
In all of the above situations there either
existed or had been a prior collective agreement
that had expired. In this respect,~those decisions
are distinguishable from the instant situation.
There had not been any collective agreement
previously signed by the parties under the present
legal regime when the grievor's services were
terminated. As we have stated above,the fact that
there had never between a collective agreement
would ordinarily render the matter inarbitrable~
However, in considering the above .authorities and
the wording of s. 18(2) of the Ack it is our
respectful opinion that the grie¥or does indeed
possess a right to grieve his dismissal and that
the Board has the jurisdiction to adjudicate his
grievance. Our reasons are as follows.
The Ontario Public Service Labour Relations
Tribunal certified the Union on October 10, 1989
making it the exclusive bargaining, agent within a
defined bargaining unit in which the grievor is a
member. It is not denied that upon being certified
the Union was granted certain rights and
obligations under the Ac__~t. That certification also
brought the grievor within the jurisdiction of the
Act which likewise provides certain rights and
protections to employees. In this connection, s.
18(2) extends certain rights directly to employees
as opposed to the parties and it expressly states
that, "in addition to any other rights of grievance
under a collective agreement,, an employee
claiming," that he has been disciplined or
dismissed may process such matter in ~accordance
with the grievance procedure provided in the
collective agreement. While we recognize that the
existence of a collective agreement would have
assisted the parties in. setting out the procedure
to be followed while processing the grievance that
problem, if there was one, was not raised as in
issue. And, in any event the grievor, the Union,
and the Employer appeared before the Board so if
there had been a procedural problem, of which we
were not informed, it has been overcome 'because
everyone concerned with this matter' was .in
attendance at the hearing. Moreover, the Court
decisions cited above appear to ~support the
position that employees, as opposed to parties,
have substantive .rights by virtue of s. 18 which
cannot be taken away by the collective agreement.
Once an employee can establish that he falls within
the jurisdiction of the Ac%, then it is our view
that s. 18 extends certain protections directly to
the employee. As was stated in the Jovce case
quoted in Keelinq, "succinctly, those rights are
personalized to the individual ~employee'" and also
in the OPSEU case reported at 40 O.R. (2d) 142
above, it was stated:
Where a right to grieve a particular
matter is specifically recognized by
legislation it ought not to be restricted
absent a clear intention on.the part of
the legislature to do so.
We agree with those statements which, we believe,
support the conclusion we have reached.
Finally, and perhaps less importantly, we are
aware that under the Public Service Act and
Regulations non-unionized public servants may
pursue dismissal grievances before the Public
Service Grievance Board. ~However, s. 23(2) of the
Act refers to a deputy minister dismissing a public
servant which is not the situation that is before
us. In other words, the grievor would not be able
to have his grievance dealt with on its merits
before that Board.
Accordingly, for all of the foregoing reasons,
it is our decision that the grievor does have a
8
right to proceed before this Board to have his
grievance resolved on its merits.
The same issue arose again in Re Rebak/Oliveira 987/90
(Watters). The arguments made before it were also the same as
before us. The Board, again in a unanimous decision, referred
extensively to the Board's reasoning in Re Horne and at pp.
11-13 concluded as follows:
After considering all of the oral and written
submissions, this Board elects to adopt the
approach taken in Horne. In our· judgment, that
case was correctly decided. We agree that section
18(2) of the Crown Employees Collective Bargaining
Ac~t provides employees with an independent right to
grieve certain matters, including discipline. Such
right is expressly stated to be "In addition to any
other rights of grievance under a collective
agreement ...". We further accept that this right
to grieve exists once the employee~can demonstrate
they fall within the confines, of the Crown
Employees Collective Bargaining Act. In this
instance, that status may be assumed from the facts
agreed to.
This Board does not accept .the Employer's
argument that sections 18(2) and 19(1) require the
existence of a collective agreement before the
rights contained therein can be accessed. While
these provisions contemplate the existence of an
agreement in the normal course, the circumstances
here and in Home are highly unusual. Ultimately,
we have not been persuaded that the lack of a
collective agreement, if that is the situation
before us, should negate the rights provided in
section 18(2). Put another way, we do not think
that such rights are conditional on the existence
of a collective agreement. Had this been the
legislative intent, we think much clearer language
would have been employed. This Board is not
inclined to restrict the statutory rights afforded
to employees in section 18(2) in.the absence of
such language. These include the'right to grieve
discipline and to resort to the Grievance
Settlement Board in accordance with the procedure
applicable under section 19 of the Crown Employees.
Collective Barqaining Act.
In summary, we conclude that the lack of a
collective agreement does not bar these employees
from grieving the discipline imposed. It is clear
that the absence of a procedure for processing
grievances did not dissuade the panel in Horne from
reaching this same conclusion. This absence was
not lost on that Board. Rather, it appeared to
treat the lack of a grievance procedure as a
procedural matter in contrast to the other
substantive rights provided.
Counsel for the employer candidly admitted that in both
Re Home and Re Rebak/Oliveir~, the'Board had considered and
rejected the same submissions that he was making before us.
He conceded that if we were to decline jurisdiction, we must
agree with his position that those decisions were manifestly
wrong.
The relevant authorities and the reasoning are reviewed
at length in Re Horne and further elaborated in Re
Rebak/Oliveira. With all respect to the able submissions of
emDloyer counsel, we cannot conclude that the reasoning or the
conclusions in those cases are manifestly wrong.
On the contrary we agree that those decisions are very
'consistent with the interpretation of section 18(2) of the Act
adopted by the Ontario Divisional Court in the three decisions
cited above. We adopt that reasoning and come to the
10
conclusion that the Board has jurisdiction pursuant to section
18 (2) of the Act to hear and determine this grievance.
Probationary Status
It is the employer's position that at the time the
grievor's employment was terminated he was a probationary
employee appointed pursuant to section 6(2) of the Public
Service Act and that the qrievor was released under section
22(5) of that Act because the grievor's conduct surrounding
two "incidents" indicated that he had failed "to meet the
requirements of his position". The employer disputes the
union's assertion that what occurred here was a disciplinary
discharge for cause as a result of alleged culpable conduct on
the part of the grievor.
The union's primary position is that the employer had no
legal authority to place the grievor on probation. Counsel
points to the uncontested fact that the MTHA was a crown
agency and that therefore its employees, including the
grievor, were "crown employees" within the meaning of the
Public Service Act and the Crown Employees Collective
Barqaininq Act. He submits that the 'powers conferred by
sections 6(2) and 22(5) of the Public Service Act only apply
to public servants. The grievor was not a public servant.
Therefore he contends that the employer had no legal authority
to place the grievor on probation.
11
In the alternative, counsel submits that even if the
employer had legal authority to place its employees on
probation, the evidence clearly indicates that the employer
did not exercise that authority in relation to the grievor.
In the final alternative, counsel for the union submits
that even if the grievor was on probation, it made no
difference here because this was not a release for general
unsuitability. Even if he was on probation, the grievor was
dismissed for cause as a result of two specific incidents, and
under section 18(2) of the Crown' Employees Collective
Bargaining Act he was entitled to the protection of the "just
cause" standard. Reliance was placed inter alia on Re Jovce
2176 (Beatty), Re Eriksen, 12/75 (Beatty) and the Divisional
Court Decision in Re Keeling (su_Bp_~).
Both counsel made extremely thorough and extensive
submissions on the authority of the employer to place crown
employees (who were not public servants) on probation.
However, we need not determine that legal issue since the
question of the grievor's entitlement to just cause protection
can be determined on very narrow grounds.
The employer relies on a document entitled "Authority to
ApPoint to Probationary Staff", entered as exhibit #99 as
supporting its position that the grievor was on probation.
The onus of proving that a probationary period was imposed on
the grievor and the duration of such probation, is on the
employer. In our view, exhibit 99 is So flawed that it is
almost meaningless. The exhibit is an official form of the
Ontario government intended for use when appointing public
servants to probationary staff. There was no explanation as
to how the MTHA, a crown agency, obtained authority to use
that form to appoint a crown employee to probationary staff.
From the employer's perspective, the importance of exhibit 99
was that in it the box "Appointment to probationary staff" was
checked off in documenting the grievor's appointment. The
"authorized official" who signed the form was Ms. M. Lobo, a
Human Resources Advisor with MTHA. The employer referred
extensively to the Crown Personnel Manual. as the source of its
authority to develop local policy, which it claims includes
the right to develop a policy relating to a probationary
period. In exhibit 99, the grievor's position is designated
by checking off the box "position excluded". However, the
manual itself makes it clear that there are only two kinds of
excluded positions, namely management positions and
"bargaining exclusions" defined as "non-bargaining employees,
who would normally be in the bargaining Unit but, because of
confidentiality to management, are excluded". The grievor
clearly does not fall into either excluded category. It is
uncontested that the grievor occupied a Position which was in
a bargaining unit for which the trade union had bargaining
rights. In other words, in exhibit 99 the grievor's position
has been incorrectly noted to be an excluded position, when he
was a bargaining unit employee as defined by the manual. The
significance of this is that the employer was not entitled to
rely on the manual as the. source of authority for imposing a
probationary period on the grievor because the manual
explicitly states that personnel policy for OPSEU bargaining
unit employees is "not covered in the Crown Personnel Manual".
While we have briefly dealt with the flaws in the
employer's argument that it had authority under the manual to
place the grievor on probation, our determination in this
regard need not be based on that. Even if the employer was
correct that it had legal authority to place its employees on
probation, the evidence leads to the conclusion that such
authority was not exercised with regard to the grievor.
Assuming that the grievor was a non-bargaining unit employee
as identified in exhibit 99, the manual provides for
probationary appointments as follows:
A new employee is appointed to probationary staff
for a specified period of time:
A. For Bargaining unit employees, the period
is in accordance with the appropriate
Collective Agreement.
B. For Non-Bargaining employees, the period
is up to one year in length.
In cases where a non-bargaining or OPSEU employee
has been appointed from the same position on a
contract basis, the Housing Authority may reduce
the probationary period accordingly up to a maxim
of 6 months.
It is evident that probationary appointment for non-
bargaining unit employees is for "a specified period of time",
which could be "up to one year in length"i The only purported
documentation of the grievor's probationary status is exhibit
99. Even if it was otherwise a valid document, nowhere in it
is the duration of the purported probationary period
specified. Moreover, the evidence is that exhibit 99 was an
internal document, for the use of Human Resource Staff. It
was not provided to the grievor at any time. The letter of
job offer for the grievor sets out all kinds of terms and
conditions of employ~nent, but there is absolutely no mention
of any probationary status or period.
Counsel for the employer submits to this Board that "this
is not a perfect world" and that the officer who drafted the
grievor's letter of job offer inadvertently omitted to set out
his probationary status. He submits nevertheless that it was
well known that all employees at MTHAwere placed on probation
upon hire and that it should have come as no surprise to the
grievor that he was treated no differently.
In our view, that is a very cavalier and irresponsible
attitude for the employer to take towards its obligations.
The employees' rights as well as the employers' rights ate
very different depending on whether a probationary period was
in effect. MOst importantly an employee's job security is not
as well protected during a probation period. Therefore it is
imperative that the fact of probationary status as well as the
specific period of probation be clearly communicated to the
employee if~there is to be a valid probationary period. The
very policy relied upOn by the employer envisages that a
probationary appointment will be for a periodof uDto one year
and that each probationary appointment must be for a specified
period. The only evidence the employer led in order to meet
its onus that the'grievor received notice of a probation
period was through the viva voce testimony of two witnesses
who interviewed the grievor at the time of hire. Not
surprisingly, attempting, to recall one of many interviews they
had done of new hires over a period of four years, all they
could say wa~ that they normally mentioned the probationary
period during .hiring interviews and that they likely did so
with the grievor also. They had no specific recall of
mentioning a probationary status or a specific period, at the
grievor's interview. This evidence is to be contrasted with
the grievor's insistence that he was not advised at any time
that his employment was subject to any probation.
The employer's argument that it had a practice relating
to probation which was well known, does not hold up to
scrutiny either. The policy manual allowed the employer at
its discretion to impose probation periods of any length upto
one year. The discretion also permits the employer to not
impose a probation period on a particular employee if it so
decides. The evidence indicates that there was no consistent
practice followed by the employer in exercising this
discretion. A number of letters of job offer for other mobile
officers were filed with the Board. While the manual
stipulates that the probation period will be for a period of
upto 1 year (ie. one year maximum), in seven letters of job
offer, employees were advised that they were subject to a
probation period of a minimum of one year.. In one, it was for
a maximum of one year. As noted, in the grievor's letter of
job offer no reference was made at all to a probation.
Whether under the Public Service %ct or under the Crown
Personnel Manual, a probationary period is not compulsory or
automatic. It is at the discretion of the employer to decide
whether a particular appointment should be subject to a
probation period and what that period would be. In the case
of the grievor, even if the employer had legal authority to
place him on probation, and even if the employer intended to
exercise that authority, there simply is no reliable evidence
that the employer in fact took any steps to carry out that
intention in relation to the grievor. It may well be that the
employer inadvertently forgot to take the usual steps as it
normally 'did. The result nevertheless of such failure, is
that no valid probation comes into effect. The employer must
live with the consequences of its own error. The existence of
a period of probation is a significant condition of hire which
the employee is entitled to consider when deciding whether to
accept the job offer. Surely, it is not unreasonable to
expect the employer to clearly communicate that condition to
the employee before the employee becomes bound by it.
For all the foregoing reasons, we find that at the
relevant time the grievor was not on probation. Therefore his
termination could not have been a release from probation, even
if that statutory authority was available to the employer
generally.
From the foregoing conclusions we have reached, it
follows that the ~rievor was entitled to full just cause
protection pursuant to section 18(2) of the Act. We now turn
to that issue.
Just cause for termination
In light of.the Board's conqlusions set out above, the
employer must fall back on its alternate position that in any
event it had just cause for discharging the grievor. It
18
claims that the grievor engaged in culpable conduct
surrounding two incidents which will be referred to as the
damage to the car and the no response Call incidents. The
union denies that the grievor acted culpably in relation to
either incident. In the alternative, the union takes the
position that if there was some blameworthy conduct on the
part of the grievor, the ultimate penalty of discharge was
exce s siue.
The evidence relating to the alleged misconduct by the
grievor was extremely lengthy. The two parties have
completely different theories as to what the grievor did and
why. There were numerous conflicts in the evidence between
the employer's witnesses and the union's witnesses. We have
carefully considered all of the evidence placed before us,
particularly as it related to the credibility of the various
witnesses. Based on all of that, we have reached the findings
which are set out in this decision.
Before turning to the alleged misconduct, the Board feels
compelled to observe that the investigation process followed
by the employer which led up to the discharge of the grievor
was not fair nor effective. Rather than attempting to find
out objectively what occurred, the investigation was geared to
proving facts and conclusions assumed by the employer. It was
more in the nature of a prosecution rather than a fact-finding
mission. Prior to the decision being made to discharge, the
grievor was not given an adequate or meaningful opportunity to
respond to the Various allegations. Prior to the decision the
grievor was not confronted with a view to finding out whether
he had any legitimate explanations. Despite this flawed
process,· it still falls on this Board at this point to
determine whether the conclusions reached by the employer are
substantiated by the evidence.
The Board must first determine what culpable conduct, if
any, the grievor had engaged in, that may have justified a
disciplinary response from the employer. If any culpability
is found, then the Board must proceed to consider whether the
penalty of discharge was an appropriate response in the
circumstances.
The no-response alienation
The employer alleges that at the end of his shift on
November 6, 1990 another mobile officer Mr. Andrew Smith
passed on a call relating to a noise complaint from a resident
in a MTHA proDerty to the griev0r who was relieving him, and
that the grievor failed to respond to that call. It is
further alleged that when the dispatcher later made inquiry
from the grievor about that call, the grievor gave a
"unfounded no-stat" disposition and that such disposition was
given with the dishonest intention of misleading the employer
into believing that the grievor had in fact responded to the
call. This was a dishonest and culpable act because the
grievor had not in fact responded to the call. The employer's
position is that the grievor gave that disposition to cover up
the fact that he had failed to respond to the call as he
should have.
On the totality of the evidence, we find that while'Mr.
Smith may have intended to pass on the call to the grievor, it
is doubtful whether the grievor in fact received that call.
In the written statement Mr. Smith provided to the employer,
he stated that he recorded details of the call and passed it
on to the grievor in written form. During his testimony Mr.
Smith stated that at the time he received the call in question
from dispatch, the grievor was not present in the room. He
wrote down the nature of the call and the address on a scrap
of paper and placed it on his desk. While he was on the phone
a little later, he observed the grievor :had come in to the
room and was talking to two other people with his back to Mr.
Smith. After hanging up, he told the grievor something to the
effect, "there is a call for you" and slid the piece of paper
which was on his desk further up towards the edge of the desk
and in the grievor's direction. In chief he testified that
the grievor appeared to acknowledge that he understood that a
call was being passed on. Under cross-examination he agreed
that the grievor did not say or do anything specifically to
indicate an acknowledgement, but that "Just from the way he
turned and faced me", he felt that the grievor understood.
Mr. Smith did not see what happened to the slip of paper after
he spoke to the grievor.
The grievor categorically denied that he.had received the
call in question. He did not hear Mr. Smith talk to him about
a call a~ all, Put at its highest, Mr. Smith's testimony
cannot be relied on to conclude that the grievor in fact
received the call. While Mr. Smith may have intended to
communicate the call to the grievor he did not do so direCtly.
The evidence was that it was busy in the office at the time.
The grievor was talking to some other officers. In the
circumstances, given the indirect and half-hearted manner in
which Mr. Smith attempted to communicate with the grievor, it
is quite plausible that the intended communication never
reached the grievor. '.
We are further convinced of this conclusion after
listening to the taped conversation between the dispatcher and
the grievor later during the same shift in which the
dispatcher asked the grievor whether he did a call. to
Dundas/Maybelle that was passed on to him by Mr'. Smith. The
grievor's spontaneous and prompt response was that he was not
aware of such a call. When the dispatcher informed that Mr.
Smith had said that it was passed on to the grievor, the
grievor replied without hesitation "Well, he may have said he
did, but I am not aware of such a call." These responses from
the grievor which were given spontaneously and without any
hint of doubt or hesitation during a routine conversation,
raise further doubts whether the grievor in fact received the
call in question.
In the absence of proof that the call in question was in
fact passed on, we now turn to the disposition of "unfounded
no stat", which the grievor had conveyed to the dispatcher
during the'same taped conversation. After reiterating three
times that he was not aware of the call in question, the
grievor casually stated "That will be unfounded no stat" and
the dispatcher responded "OK. Thanks".
The employer contends that the grievor gave that
disposition deliberately to mislead the employer into
believing that he had responded to the call, when in fact he
had not. That in our view does not make sense. The grievor
had just insisted three times that he was not even aware of
the call. Having done that expressly, it defies any common
sense, how the grievor can expect to mislead anyone into
believing that he responded to that Call by giving a
disposition of "unfounded no stat".
However, we do not accept the grievor's testimony that he
was not aware that it was inappropriate to use the "unfounded
no stat" disposition for a call he did not attend. The
evidence indicates that the noise complaint came in to
dispatch at 10:12 p.m. By the time the grievor became aware
of it, it was 5:15 a.m.. We find that since it was a
relatively minor noise complaint and since it was stale at the
time, the grievor' did not feel it was important enough to
follow it up at that time. He just Wanted get that call out
of the way. To do that he had to give it some disposition.
It was with that intention, and not with~ the intention of
misleading the employer into believing that he responded to.
the call, that he gave the disposition of "unfounded no stat".
We find that the grievor was derelict in the performance of
his duties by doing so. By giving a disposition, which he
knew to be inappropriate, the grievor engaged in culpable
conduct which justifies some disciplinary penalty. However,
we find that the evidence does not substantiate the more
~erious allegation that the grievor, was deliberately
attempting to mislead the employer.
The damage to the vehicle
It is beyond doubt that a MTHA vehicle suffered damage
while it was in the care and control of the grievor on
November 8, 1990. The damage included a flat front right
tire. The tire had several slashes on the outer sidewalls and
a large nail was protruding from a puncture on the tire. The
rim of the tire was also dented. Besides this damage to the
tire and rim, the car suffered substantial front-end damage.
The wheel was toeing out noticeably when the steering was in
the straight position. The grievor's story is that he was
driving along a street and was about to turn into a shopping
plaza when the car suddenly veered to the right and the front
right wheel clipped the curb and went over it. According to
him he felt no unusual sensation after that incident when he
drove up to a donut shop in the plaza and parked. However,
when he returned to the car with a coffee, he noticed the tire
was flat. He also observed a nail sticking out of the tire.
He called in to his supervisor and reported that he had a flat
tire.
The employer conceded that the grievor was not
disciplined for negligently driving and hitting the curb.
Rather, it is the employer's position that having caused
serious damage to the tire, rim and front-end as a result of
hitting the curb, the grievor attempted to cover up the
seriousness of the damage by reporting a simple flat tire.
The grievor claims that he reported a flat tire because that
was the only damage he was aware of. He did not write an
occurrence report because such a report was not required for
a simple flat tire. The grievor would have us believe that
'25
the front-end damage was caused later during the shift when
the car fell off the jack three times while he was attempting
to remove the flat tire and put the spare on. Subsequently he
drove the car for the balance of the shift. He concedes that
during that time he noticed the car veering to the right, but
did not report it because he attribUted that to the fact that
the car had the spare tire on, in place of the original tire.
The issue between the parties, and what the'Board must
determine on the basis of the totality of evidence is whether
the grievor was aware of the full extent of the damage and
attempted to pass it off as a simple flat tire. The grievor
removed the wheel in question and placed it in the trunk of
the car. The wheel was filed in evidence.as an exhibit. It
still.had a nail sticking out of the puncture. We had the
benefit of observing the damage to the tire and rim. We also
heard testimony from the auto mechanic who inspected and
repaired the front-end damage.
Based on all of the evidence we conclude that even if a
nail caused~a blowout and caused the car to clip the curb as
the grievor suggests, as a result of that impact all of the
damage to the tire, rim and front-end resulted. We do not
accept the grievor' suggestion that the front-end damage was
caused as a result of the car falling off the jack.
Considering the severity 6f the damage, it is simply not
credible that the grievor would not have noticed a problem
with the steering. It is not believable that the grievor
honestly believed that what he had was a simple flat tire
resulting from a nail puncture. Severe slashes to the
sidewall of the tire and dents to the rim were easily visible.
Even if the front-end damage was not immediately noticeable,
at the time the grievor ought to have known at least that the
tire and rim had been practically rendered beyond repair as a
result of the impact with the curb. Therefore, we are led to
the conclusion that he was less than forthright when he
reported a simple flat tire.
Even if we accept the grievor's theory that the front-end
damage was caused later in the shift as~a result of the car
falling off the jack, we still are led to the conclusion that
his explanation is not credible. He claims that after he
managed to put the spare on he noticed the car veering to the
right, but it did not occur to him that there may be a
connection between the veering and the clipping of the curb.
He thought the car was veering because it had a spare tire on.
Given the serious toeing of the wheel that had resulted, the
veering would have been severe. The officer who relieved the
grievor at the end of his shift also knew that there had been
a flat and that a spare had been put on. It did not take her
very long to realize that there was something wrong with the
steering. The spare in question was a full-size tire.
27
Eventhough the grievor was not trained in auto mechanics,
given the seriousness of the front-end damage and the severe
veering .that must have resulted, we do not accept that the
grievor could have honestly believed that. the veering was due
to the spare tire.
Based on all of the evidence we must conclude that the
grievor attempted to cover up the full extent of the problem.
In addition, we also find that once the employer became
suspicious, the grievor did not cooperate as forthrightly as
he should have. Through inaccurate reporting he attempted to
continue his cover up, He denied any blame on his part and
maintained complete innocence. Moreover, he continued to
maintain this position throughout the arbitration. We find
that just as much as he attempted to cover up.the true extent
of his responsibility with the employer, he did not come clean
before this board.
It remains to determine whether the culpable conduct we
have found against the grievor gave the employer just cause to
discharge him. Employer' counsel took a somewhat unusual
approach in his arguments on the issue of just cause. Rather
than focus on the specific culpable acts and omissions
attributed to the grievor and assessing whether such conduct
constituted just cause for discharge, counsel argued that the
conduct in question demonstrated to the employer that the
28
grievor was not fit to be employed as a security officer. As
he put it, "the employer was entitled to conclude that the
grievor was a square peg in a round hole". He submits that
the employer was entitled to conclude that it did not wish to
continue employing a person who could not.be relied upon to be
honest, forthright and cooperative, particularly considering
that the job involved security duties.
This general argument of "unsuitability" has some
attraction on its face. However, it breaks down upon closer
scrutiny. Very noticeably, employer counsel did not address
the question of why progressive or corrective discipline
should have no application to this case. Where a truck driver
is found guilty of negligent driving, it may be argued, as the
employer did here, that he is unsuited 'to be employed as a
driver. However, it is highly improbable that a discharge
will be upheld for such a first offence. Progressive
discipline and the potential for rehabilitation must always be
factored in when assessing the appropriate penalty. It cannot
be circumvented by focussing on "suitability", when the
employee is entitled to just cause protection.
The grievor had been employed by the employer for only
one year. He had no discipline in that period. The only
performance appraisal done on him was quite positive. There
were no other performance problems on record.
On the other hand, the grievor's misconduct was serious.
As a security officer, the employer was entitled to demand
complete honesty and integrity from him. The position is
roughly comparable to that of a police officer. The grievor
was not only dishonest with the employer, but when he came
under suspicion he resorted to inaccurate reporting to
continue his attempt at covering up. At the hearing, he
admitted no wrong-doing whatsoever and exhibited no remorse.
Despite the seriousness of his misconduct, we have no
reason to believe that the grievor will not correct his ways
if he is subjected to a substantial penalty short of
discharge. We are reinforced in this regard by the evidence
that prior to the incidents in question the grievor had been
discipline free and regarded as a good security officer by
this employer as well as by his previous employers.
Employer counsel submitted forcefully that if the Board
found the p~nalty of discharge to be excessive, the remedy
ought to. be the direction of a lump sum payment to the
grievor. He repeatedly asserted that "This is not a case for
reinstatement". However, he gave no reasons as to what was
unique about this case which made reinstatement inappropriate.
We cannot see any valid reason to depart from the normal
remedial approach followed by the Board.
Weighing all of these factors we have concluded that in
the circumstances, the penalty of discharge was excessive. We
are convinced that a substantial penalty Will have the desired
corrective effect. Therefore, we direct.that the grievor be
reinstated in his position forthwith. The grievor was
discharged in December 1991. Due to the length of.the hearing
and the complexity and volume of evidence and submissions the
Board had to review and deliberate, his reinstatement occurs
after 3 years. Nevertheless, given the seriousness of the
grievor's conduct and particularly the fact that he continued
his deception right through to the hearing, we do not consider
it appropriate to award the grievor any monetary compensation.
Eventhough it is an unusually long period of time, the period
between the grievor's discharge and his reinstatement shall be
recorded as a period of suspension without pay and without
accumulation of seniority.
The Board remains seized in the event the parties
encounter difficulties in implementing this award.
Dated this 13th day of February 1995 at Hamilton, ontario
Vice-Chairperson
M. Lyons
Member
F. Collict
Member