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HomeMy WebLinkAbout1991-3126.Krusto.94-11-29 i ONTARIO EMPLOYES DE LA COURoNNE · CROWN EMPLOYEES DE L'ONTARIO GRIEVANCE COMMISSION DE SETTLEMENT Ri GLEMENT BOARD DES GRIEFS 180 DUNDAS STREET WEST, SUITE 2100, TORONTO .ON MSG 1Z$ TELEPHONE/T~L~PHONE : (4t6.) 326- t388 180, RUE DUNDAS OUEST, BUREAU 2100, TORONTO (ON) MSG ~IZ8 FACSIMILE/T~-L '~COPtE : (416.) 326-t396 GSB # 3126/91 OPSEU # 92A304 IN THE ~ATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN OPSEU (Krusto) Grievor - and - The Crown in Right of Ontario (Ministry of Correctional Services) Employer BEFORE S. Stewart Vice-Chairperson I. Thomson Member F. Collict Member FOR THE A. Ryder GRIEVOR Counsel Ryder, wright, Blair & Doyle Barristers & Solicitors. FOR THE J. Benedict EMPLOYER Manager, Staff Relations & Compensation Ministry of theSolicitor General & Correctional Services HEARING October 1, 1992. March 29, 1993 ApriI 7, 8, 1993 May 3, 1993 ~June 21, 1993 May 3, 6, 10, 1994. December 6, 7, 1994 DECISION The panel commenced separate hearings of the grievances of Mr. M. Krusto and Ms. N. Ritchie in connection with suspensions that were imposed on them arising from events which took place on October 22, 1991 at ~he Hamilton-Wentworth Detention Centre. It was agreed by the parties that an additional grievance filed by Mr. Krusto would be held in abeyance pending the Board's decision in this matter. A letter dated January 9, 1992 from Mr. F.W. Morris, deputy superintendent, to Ms. Ritchie states in part: I have concluded that you were a willing participant in horseplay. This eventually resulted in physical injuries and the loss of a number of days of work for involved employees. Ms. Ritchie was given a three day suspension. Mr. Krusto was also sent a letter by Mr. Morris dated January 9, 1992 wherein it is stated: I have concluded that you were an active participant in horseplay and when you were told to discontinue your actions.because they became offensive, you failed to do so resulting in physical injuries and the loss of a number of days work for the involved employees. Mr. Krusto was given an eighty hour suspension, for six twelve hour shifts and 8 hours of an additional twelve hour 'shift. The suspension is referred to as a ten day suspension in Mr. Krusto's grievance, obviously based on a conversion to eight hour ~ays. The matter was investigated internally by Mr. R. Kalnins, senior assistant superintendent, in the course of the 2 investigation a number of persons, including Mr. Wilson, Mr. Krusto and Ms. Ritchie, were asked to submit occurrence reports. Subsequently, Mr. J. Main, regional director, requested that an investigation be cOnducted by the investigation and inspection branch of the Ministry. An .investigation was conducted by Mr. C. McMaster, who also obtained statements from those persons involved in or having knowledge about the incident. A report dated January 3, 1992 was submitted and reviewed by Mr. Morris prior to imposing discipline. Mr. Morris testified that it was his conclusion that Mr. Krusto, Ms. Ritchie and Mr. Wilson had all conducted themselves inappropriately. He concluded that Ms. Ritchie was a willing participant in "horseplay" up.to a point and that ~all three were less than totally candid with him about what had taken place. Given that the discipline and the grievances arose out of the same event and that there would be a duplication of witnesses the parties agreed with the panel's suggestion that the grievances be heard together. The grievors were represented by separate counsel. However, in the course of these proceedings, after Ms. Ritchie had completed her'evidence, we were advised that the parties had resolved her grievance. We were further advised that the parties had agreed that the panel would be advised that a term of the settlement was the reduction of Ms." Ritchie's suspension to two days. 3 Ms. Ritchie commenced her employment with the Ministry of Correctional Services in April of 1988 as a social worker. In February, 1991, Ms. Ritchie became involved in an management development program which was designed to facilitate promotional opportunities for under-represented groups. The goal of the program was to provide persons in designated groups with job experience which would allow them to compete for senior management positions. On October 21, 1991 Ms. Ritchie was assigned to an acting management position, OM14. There were some .facts that were not in issue. The events took place in the shift supervisor's office where Ms. Ritchie arrived at approximately 5:45 p.m. to carry out some paperwork after leaving the floor to which she had been assigned that day. Mr. M. Krusto, 'a correctional officer and Mr. M. Wilson, a member of management, OM14, were present in the'office and were involved in the events. There were members of management who were present in the office at that time and while not directly involved in the incident were in a position to observe at least some of the events and gave evidence in these proceedings. Those persons were Ms. E. Coccia, OM14, and Mr. R. Swann, OM16. Both Mr. Swann and Ms. Coccia testified in these proceedings. Mr. Swann relieved Mr. Hardwick and they were both .present in the office for a brief period. Mr. Swann was given a two week suspension as a result of the incident. Ms. Coccia was not disciplined. Some of the events were also observed by Mr. M. Clinton, a 4 recreational officer, who testified in these proceedings. The loss of time from work referred to by Mr. Morris in his letters imposing discipline on Ms. Ritchie and Mr. Krusto consisted of the period October 25, 1991 to January 5, 1992 on the part of Ms. Ritchie, October 25, 1991 to'December 24, 1991 in the case of Mr. Krusto, October 25, 1991 to. March 26, 1992 on the part of Mr. Swarm and October 25 to December 17, 1992 on the part of Mr. Wilson. Ms. Ritchie and Mr. Krusto were absent based on injuries claimed to have been sustained in the incident although it also appears that stress was an aspect of their claim. Their claims for WCB benefits were~rejected, however they were paid sick leave benefits. As we understand it, the absences of Mr. Swarm and Mro Wilson from work were based on a claim of stress associated with the investigation and the discipline that was imposed on them. Mr. Wilson and Mr. Swarm also received sick leave benefits. It Was necessary for the Employer to replace these persons at work, with the result that the Employer experienced significant costs associated with the incident. As previously noted, Ms, Ritchie was assigned to a OM14 position on October'22, 1991. Her particular duties were the supervision of staff and inmates on Level 4. We will commence~ with Ms. Ritchie's version of the events. She'testified that aZ about 5:45 p.m. she went to the shift supervisor's office to prepare documentation for shift change and carry out some filing. She arrived at the office and commenced her paperwork'. Ms. 5 Ritchie testified that at about 15 or 10 minutes to 6:00 p.m. she noticed Mr. Krusto and Mr. Wilson entering the office together. Mr. Krusto had a bag of potato chips that he was offering to people as he came through the office. Ms. Ritchie testified that Mr. Krusto came to her and told her that there was a function relating a fine that had to be carried out. Ms. Ritchie testified that it was her understanding that other officers would be attending to the fine and that she conveyed this information to Mr. Krusto. Ms. Ritchie testified that Mr. Wilson then made a statement to the effect that she was not competent to carry out the function. She testified that~sarcastic comments were exchanged. Ms. Ritchie testified that she had been eating an apple and got up to wash her hands. She testified'that Mr. Wilson was in the doorway and would not let her past. She testified that he stepped from side to side as she tried to get around him. She testified that she asked Mr. Wilson to move but he refused to do so. She then wiped her hand on his upper arm and returned to her desk. She testified that Mr. Wilson was ,laughing at the time. As she was returning to her desk Mr. Krusto brushed his hand on her sleeve and then Mr. Wilson ran his hands down her back. She testified that she then said to Mr. Wilson "get your h~nds off me". She testified that she was not laughing at the time but she may have been smiling. Ms. Ritchie acknowledged in cross- examination that she was participating in the horseplay up to 6 this point. 'Ms. Ritchie testified that Mr. Wils6n then lunged over the desk and touched her left arm. Ms. Ritchie testified, that some of the paperwork and a plastic cup were knocked off the.desk. She then got up to pick up the papers and the cup on'her hands and knees. She testified that Mr. Wilson kicked her on the behind. She testified that.it did not hurt her but that it was. not a light kick. In Ms. Ritchie's initial written statement of October 24, 1991.about the events there is no reference to Mr. Wilson lunging at her or to her being kicked. Ms. Ritchie'testified that at that point she thinks she said something like "that's it". Her statement to the investigator on November 13, 1991 on this point was: "I think I said something like "I'm going to get you or that's it, something like that". Ms.. Ritchie acknowledged in cross-examination that if she did make the former statement it could be interpreted as indicating that she was still participating in horseplay. Ms. Ritchie testified that Mr. Wilson then ran into the kitchen area and she returned to the desk. at the back. In her statement t'o.the investigator, however, she states that she then '%chased" Mr. Wilson toward the kitchen area before returning to her desk. Ms. Ritchie testified that Mr. Krusto came tO the desk and threw the contents of a styrofoam cup, a few drops of water, at her. The water landed on her Shirt. She testified that she then said "Get 7 lost.". She maintained that she did not flick or throw water on anyone. Ms. Ritchie testified that she then.got up to get paperwork that she needed from the front desk and that either on the way there or the way back Mr. Krusto grabbed the right pocket of her pants and made a gesture as if to throw a cup of water he was holding into her pocket. Ms. Ritchie testified that she responded saying "don't, leave me alone" in a stern tone of voice. She went and sat down at the desk at which time Mr. Krusto threw the water on her lap. She testified that she stood up immediately to brush her pants off, She said she felt humiliated and tearful and did not say anything. She testified that Mr. Wilson and Mr. Krusto were standing by the filing cabinet and Mr. Wilson asked her what she was going to tell Andy, about her "wet pants". This reference was to Mr. Farkas, to whom Ms. Ritchie is now married. Mr. Farkas is also an employee of the Ministry of Correctional Services and was known to both Mr. Wilson and Mr. Krusto. Ms. Ritchie testified that she responded by saying "What are you going to tell Andy?" hoping to discourage them. Ms. Ritchie testified that Mr. Krusto then said to her: "Did Andy show you this ICIT move?" and that he "came at" her. Ms. Ritchie testified that she immediately stepped back and bumped into the wall behind her. She testified that she panicked and told him to "fuck off and leave me alone". She testified that she said this loudly, hoping that Mr. Swann would turn around or that someone would intervene. Ms. Ritchie testified that Mr. Swann did turn around, looked at her and then turned back to his · phone call. She testified 'that Ms.. Coccia also looked at her. · Ms. Ritchie testified that Mr. Krusto grabbed her upper arms, slid his hand down to her right forearm and put her right arm behind her back. He held her left arm in the same fashion. She was not aware of where Mr. Wilson was at this time. Ms. Ritchie says she did not recall saying~anything to Mr. Krusto but that she attempted to bite him. She testified that he released her temporarily, but then regained hold-on her. She testified that because she could not get away from him by struggling she raised her knee'into his groin. Ms. Ritchie testified that she then felt someone grab her left arm around the wrist and pull it behind her body twisting it. She testified that at the same time she was pushed forward so that her upper body was over the desk. She then felt hands go up and down the sides of her body slightly touching both breasts. She pushed herself up. Mr. Krusto had hold of her right arm and Mr. Wilson had hold of her left arm. She testified that Mr. Wilson twisted her left arm and at that point she felt pain in her left shoulder. She testified that they were laughing and ~that~they eventually let go. 9 MS. Ritchie testified that at that point Mr. Wilson said something about her "putting up a good fight". Ms. Ritchie indicated that she did not say anything. She testified that Mr. Wilson was then called to the phone and that she heard Mr. Wilson saying "cuff her in the head". She testified that he referred to the person on the phone as "Mike" and that she observed another employee, Mr. Michael Clinton, the recreation officer, across the hall. Ms. Ritchie testified that Mr. Wilson said something to Ms. Coccia and that Ms. Coccia shook her head in a "no" gesture. Mr. Wilson then returned to her and said that he had permission to handcuff her but that Liz (Ms. Coccia) felt that ske had had enough. She testified that Mr. Wilson then went back to the filing cabinet where Mr. Krusto was and at that point she said "Don't, leave me alone, I'm serious you guys". She then collected her papers and Mr. Krusto said to her "It's okay Nandy, you can go by, we won't touch you". She testified that Ms. Coccia asked her if she was okay and that she nodded affirmatively. There were some conversations and Ms. Ritchie acknowledged that Mr. Krusto attempted to talk to her. She testified that she then started to cry. She explained that she was embarrassed and was concerned that young offenders had been observing the events. She stated that "I tried my best to tough it out or be one o~ the boys but i felt totally kumiliated at the end". One of the reasons put forward by Mr. Morris as to why'he questioned Ms. -Ritchie's version of the events was that she denied laughing at the. time of the events, when a number of witnesses indicated that she was doing so. He testified .that he specifically asked Ms. Ritchie, prior to the imposition of discipline, whether she had been laughing at any'time and that she denied doing so. His notes of the meeting confirm his evidence in this regard. Ms. Ritchie's evidence was that this eXchange simply did not take place. When asked to address this matter in chief she testified that she may~ have been laughing initially, but that she was not doing so after Mr. Krusto Sprinkled-water on her for the first time. There were two areas in which Ms. Ritchie's testimony about incidents following the events of October 22, 1991 were contradicted by persons who had no apparent interest in this matter or animosity towards Ms. Ritchie. Ms. Ritchie was made aware of Mr. Ryder's intention to call contradictory evidence. Ms. Ritchie testified that following these events she reported to Mr. Baldwin, shift supervisor, that she had been injured in the incident. Mr. Baldwin testified that Ms. Ritchie did not report to him that she had been injured. Ms. Ritchie also testified that while s~e was off work following these events she did not work elsewhere. She specifically denied that she worked at the Limeridge Mall. Ms. T. Pinnegar, a correctional officer at the institution, testified that shortly before Christmas in 1991 she saw Ms. Ritchie in a clothing store in Limeridge Mall. she 11 testified that Ms. Ritchie told her that she was working there and that she observed her doing so. Mr. Krusto joined the Ministry of Correctional Services in February, 1988 as an unclassified Correctional Officer at Hamilton-Wentworth Detention Centre. He became a Correctional Officer 1 in April, 1989 and a Correctional Officer 2 in April, 1990. Mr. Krusto testified that commencing at around the beginning of 1990 prior to becomihg a CO~ he commenced obtaining assignments as an acting manager. Mr. Krusto has a clear disciplinary record and in his evidence made reference to some commendations that he has received commenting favourably on his performance. Mr. Krusto testified that in October, 1991 he was a personal friend of Mr. A. Farkas who is now Ms. Ritchie's husband. He testified that through Mr. Farkas he came to know Ms. Ritchie. According to his evidence, ihe and Ms. Ritchie had a positive working relationship. Mr. Krusto testified that his encounter with Ms. Ritchie on October 22, 1991 commenced with him offering her chips from a bag that he was holding. He testified that they talked about times that they had enjoyed together on a boat and she told him that they had purchased a new boat. There was'then some discussion about Mr. Farkas. According to Mr. Krusto's evidence, in the course of this discussion Ms. Ritchie got up, put her hand in a glass of water that she was holding'and commenced flicking water at him. Mr. Krusto testified that he thought that Ms. Ritchie was simply "blowing off steam" and he interpreted her flicking water on him as a joke. Mr. Krusto tes%ified that he had crumbs on his hands from his potato chips and he wiped his hands on her shoulder in~responseo Ms.. Ritchie then walked to the filing cabinet and he stood in front of her. Mr. Krusto testified that they again started talking at that point about the ICIT team. Mr. Krusto' testified that he had about an inch of water in a cup that he was holding and that he then reached forward and dumped it on the front of Ms. Ritchie's knee. He testified that Ms. Ritchie then got up to brush the water and then took hold of him pulling him over to his right side. He testified that. Mr. Wilson then tried to pull her away from him. Ms. Ritchie stated "This is the closest you've been to coming in a long time". Mr. Krusto testified that Ms. Ritchie went to grab at.Mr. Wilson or he was pulling her away while she still had hold of him. Mr. Krusto testified that he pulled himself away, holding on to Ms. Ritchie's right arm. Mr. Kr~sto said that Mr. Wilson must have then let go of her because Ms. Ritchie then backed up, almost stepping on his feet. He then put his hands up on her right shoulder to stop her from trampling Dn him and at this point Ms. Ritchie said "stop". Mr. Krusto testified that when Ms. Ritchie said "stop" he backed away toward.the wall and that he considered that "the horseplay among friends" was over. Mr. ~Krusto testified that Ms. Ritchie then reached over, grabbed him and kneed him in the groin area. He-testified that he was in shock.' 13 Following this event Mr. Wilson said "You could have killed the man". According to Mr. Krusto's evidence Ms. Ritchie's response was "his balls hang too low anyway" and she said to Mr. Wilson "and you don't have any balls". According to his testimony, Ms. Ritchie then walked away. Mr. Krusto testified that shortly afterwards he approached Ms. Ritchie to find out what was wrong but that Ms. Ritchie indicated that she did not wish to talk to him. Mr. Wilson testified that the events: in issue took place after he and Mr. Krusto had gone out for a supper break. According to his October 23, 1991 report to Mr. Ka'lnins, it was about 5:45 p.m. when they entered the shift supervisor's office. Mr. Wilson testified that Mr. Krusto had a bag of potato chips which he offered to everyone in the office, including Ms. Ritchie, who accepted some. He testified, that Mr'. Krusto and Ms. Ritchie began "talking a.nd joking". In his report to Mr. Kalnins he describes himself as having "joined in.the fun". Mr. Wilson testified that Ms. Ritchie started flicking water at Mr. Krusto from a cup. He testified that Ms. Ritchie got up and referred to her walking toward the sink-areawhere helassumed she was going to wipe her hands. However, she did not actually go as far as the sink area, but wiped her hands on Mr. Krusto and Ms. Ritchie, one hand on each of their arms. He testified that all thr~e of them were laughing and joking at this point and that Ms. Ritchie then flicked more water'at Mr. Krusto. AcCording to his evidence, · ~ 14 Mr. Krusto then took the cup of water from the desk and threw the remaining water on Ms. Ritchie's leg. He testified that Ms. Ritchie then said; "that's the closest you're going to get to coming", and was laughing. Mr..Wilson testified that Ms. Ritchie then "got Up and' grabbed Mike". According to his evidence, she grabbed Mr.~ Krusto's right arm. The two were then pushing and pulling each other hack and forth and laughing. Mr. Wilson testified that Ms. Ritchie asked him why he was laughing and then reached out to grab him.- He~ testified that he g~abbed her hand as she reached for him and twisted her.arm so that she would not be able to get hold of him. All three of them continued to laugh and joke. He described Ms. Ritchie as the "active one" in ongoing pushing and pulling. He testified that the phone rang and he answered it, at which 'point he may have let go of Ms. Ritchie's arm. Mr. M. Clinton was on the phone and he asked if they were going to handcuff Ms. Ritchie. Mr. Wilson testified that he jokingly asked Ms. Coccia if he could have her handcuffs and that Ms. Coccia. said that she would not give them to him. Ms~ Ritchie then reached out and grabbed him but he took hold of her arm and then broke away. He testified that Mr. Krusto and Ms. Ritchie continued pushing and pulling each other while laughing and joking. He testified that he then heard Ms. Ritchie say: "stop it, I mean stop it - something like that". At this point the tone of her voice and her face were stern and angry. He 15 testified that there had been a complete change on the part of Ms. Ritchie, from laughing and joking to anger. Mr. Krusto had hold of her arm and was standing slightly behind her. According to Mr. Wilson's evidence, Mr. Krusto then stood back and let go. He testified that Ms. Ritchie still had hold of Mr. Krusto by the shoulders, there was a brief period of silence and then Ms. Ritchie kneed Mr. Krusto in the groin area. He testified that Mr. Krusto moved away from her, Ms. Ritchie stared at him for~a few seconds and then went and sat down in a chair. There was a brief communication between himself and Mr. Krusto indicating that neither understood her response. He noticed shortly after that Ms. Ritchie was crying. He went and asked her what was wrong and her reply was "nothing". He testified that he then said that he was sorry if they had done anything to bother her. Mr. Wilson was given a ten day suspension for his involvement in the events. That suspension was grieved but at the time of his testimony that grievance had not been heard. Mr. Swarm testified that he came on duty at about 5:45 p.m. and relieved Mr. Hardwick as shift supervisor. Mr. Swann testified that he became involved in a telephone conversation about a new admission and while engaged in the call he heard a woman's voice saying something like "leave me alone". He testified that he observe~ Ms. Ritchie with her arms in front of her and her head down and that there were two officers in front of her. He turned his attention back to his telephone call and when it was completed the three were no longer in his view. He testified that he could hear voices in the kitchen area and he yelled at them to be quiet because Ms. Coccia was still on the telephone. Later, 'he saw Ms. Ritchie sitting at a 'desk with her head down. He testified'that he asked Ms. Coccia what w~s wrong with~Ms. Ritchie and that Ms. Coccia said to "leave her alone" and that she would be "all right". No discipline Was imposed on Ms. Coccia., Like Ms. Ritchie, Ms. Coccia was a participant in the program to enhance promotion opportunities for designated groups. Ms. Coccia acknowledged, in cross-examination by Mr. Mazzucca, that there was' some resentment on the.part of some staff about the program in which Ms.' Ritchie was involved. Ms. Coccia was also involved in that program' Ms. Coccia testified, however, that Ms. Ritchie had performed well in the program and was. respected by her peers. Ms~ coccia testified that she was in a position to observe most of the events involving Ms. Ritchie, Mr. Krusto and Mr. Wilson. Given that no discipline was imposed on Ms. Coccia and thus there was no 'interest on her part in this respect it was our view that her evidence merited particular attention. ' Ms. Coccia, like other persons who were witnesses to the events, was interviewed in the course of the investigation. Because of the'particular attention that~we feel her evidence merits we have reproduced her statement to the investigator which 17 was taken on November 19, 1991: Q. Can you describe in your own words, events you witnessed or took part in surrounding the incident/ matter which is the subject of this investigation? A. I was working as the shift I/C assistant that day. I was sitting at the scheduling desk in the office. Just about that time, around 1730-1800 hours, people were coming off the levels for ~suppers, filing and so on. At that time there were several people in the office. Some left to do other duties. At that time the joking around between Mr. Krusto, Mr. Wilson and Ms. Ritchie had already started. At one point I saw her flicking water drops from a cup of water at both Mr. Krusto and Mr. Wilson. Then they were trying to get her back by throwing water at her. She tried to shield herself with my sweater. I took the sweater from her and told her she's not getting my sweater wet. At that time a phone call came in, Mr. Swann answered the phone and it was Admitting and Discharge who were looking for paperwork on a person who was surrendering himself on appeal bail. I didn't have any information on this so I started phoning around trying to find out about this person. I was on the phone first with A&D, got a lawyer's name, called the lawyer trying to sort this matter out. We (Mr. Swann and I) were on the phone for quite awhile~ The noise level from them joking around was still loud, we told them to keep the noise down but they continued to carry on. Then I saw them b~hind the desk at the rear of the office they had her by the arms and she was struggling, they had her arms pulled behind her back, she was partially bent over forward. I was on the phone but I was on hold at the time. Marty (Wilson) asked me for my cuffs. I shook my head no and said no. The three of them continued to carry on. Something about Andy teaching her the ICIT moves was said, and by this time they had moved out between the filing cabinet and the desk. They. were still laughing and joking around. Me and Mr. Swarm were both on the phone when I heard Nandy say "stop it guys". Mr. Swarm turned'around, I looked up but all I could see was their heads and they were still laughing. She made a comment about "stringing your balls". Then she came and sat down in a chair across from the scheduling desk. When I looked up I saw she was crying. I asked her if she wanted to go out of the office to talk. Everybody was asking her what .was wrong, she wouldn't say. She kept saying she was fine. At that point Mr. Craig who had jUst came on.duty tried to get her to go for a coffee, Mike Krusto tried talking to her - he was quite upset when he saw that she was crying, so did Marry, they apologized if they had offended her in anyway. Nandy then left the building and everybody was.sort of dumbfounded as they didn't know what happened. When She left the building it was about 1830. At about 1915~hours I recaived a call from Andy Farkas, he wanted to know what happened because Nandy was home crying and her hand was bruised and swollen. I told him she was involved in horseplay with Mike and Marty and that the horseplay had gotten out of hand. I told him it was all in fun, · nobody, was meant to get hurt, everybody was equally involved and nobody was picking on Nandy. Then I told him Marty Wilson has already gone home but that Mike Krusto was still on duty and would he like to talk to him. Andy said no, that he was too hot at that time to speak to anyone, that he wanted to think before he took any action. The next thing I know I was called into Mr. Kalnins' office and - advised that Ms. ~itchie and Mr. Krusto were off work with work-related injuries. Q. Do you know who started the water throwing? A. I saw Nandy flicking the water at them. I didn't see them doing it to her before that. Q. Did you see a water stain on her.trousers? A. Yes, it-was on her lap mostly on one leg about 6" in diameter. · Q. Did you hear her say anything to either of them telling them not to-throw the water or to "stop"? A. Yes, but she was laughing and trying to protect herself with my sweater. Q. Did you happen to see them wiping their hands on each other? A. NO, I didn't see that. 19 Q. Did you at any time hear Nandy tell them to "stop" in a serious manner? A. I do recall her saying it that one time but it was going back and forth for a long time and she was contributing as much as they were. I saw nothing unusual happen other than horseplay. Q. Did you see Nandy knee Mike Krusto in the groin? A. No, I didn't. The first time I heard that it had happened was on the following Friday morning, October 25, 1991), when I was told he was off on WCB (Workmens' Compensation). Q. So he didn't appear injured or talk about in on the night of the incident? A. He talked to me that he was concerned that Nandy left crying, he didn't know if he had hurt her or what set her off. Q. At anytime did Mr. Wilson or Mr. Krusto make eye contact with you or get your reaction to Krusto being kneed in the groin? A. No. Q. When they had her arms behind her back, did either Mr. Krusto or Mr. Wilson touch any other part of her body? A. No, I did have a clear view of them during that time and I would have said something if they had done something out of line. In Ms. Coccia's testimony before the Board she confirmed her statement to the investigator in all essential respects. She maintained, in cross-examination, that all three were laughing and participating in the horseplay including the physical horseplay. She testified that she heard some insults exchanged but stated that it was apparent that they! were in good humour. She testified that at no time did she seeMs. Ritchie picking up 20 '~ anything from the floor. Ms. Coccia testified that she would not have put up with inappropriate behaviou~ and that if she had seen anything inappropriate she would have intervened. As indicated earlier, Ms. Coccia testified that she was able to observe the interactions between Ms. Ritchie, Mr. Krusto and Mr. Wilson. However, she testified that at the time when she heard Ms. Ritchie say "stop it", her view of the participants was more limited because of where'they were standing. Ms. Coccia described Ms. Ritchie's voice at that time as "slightly raised". Ms. Coccia, along with others, was asked to provide a report to Mr. Villeneuve. In that report, which~is much less detailed that the statement to the investigator, Ms. Coccia appears to be suggesting that the sequence of events involved Ms. Ritchie first making the comment about balls, then the physical aspect of the' horseplay continuing'with Ms. Ritchie then saying. "stop", at which point Ms. Ritchie then came and sat down close ko her.. Ms. Coccia was not asked about this inconsistency in the course of her cross-examination. The Board also heard evidence from two persons who were not present in the office at thee time of t~e events but who had opportunities to make some observations of the events. Mr. P. Ivask, a correctional officer, testified that when walking-past the shift supervisor's office he observed Mr. Krusto, Mr. Wilson and Ms. Ritchie engaged in what he described as "horseplay". He 21 testified that everyone, including Ms. Ritchie, was "laughing and having a good time". He testified that he saw Ms. Ritchie reaching out to grab Mr. Krusto and Mr. Wilson in the course of the horseplay. Mr. M. Clinton, the recreation officer referred to above, testified that while standing across the hallway from the shift supervisor's office he observed Ms. Ritchie, Mr. Krusto and Mr. Wilson "smiling and jostling". He telephoned and made a joking remark about handcuffs. He acknowledged that he observed the events for only a brief period of time but testified that there was nothing about the events that caused him concern. With respect to the many areas in which a conflict in the evidence exists, we are mindful of the fact that the three persons directly involved have been disciplined and thus have an interest in the outcome of this proceeding. We are also mindful of the fact 'that any inference in favour of the version of events put forward by Mr. Krusto and Mr. Wilson by virtue of their consistency must be balanced in light of their interests in consistency. In assessing the evidence where there is a conflict about what occurred we are mindful of the guidelines set out in Faryna v. Chorny , [1952] 2 D.L.R. 354 at pp. 356-8 If a trial Judge's findin~ of credibility is to depend solely on which person he thinks made the better appearance of s~ncerity in the witness box, we are left with a purely' arbitrary finding and justice would then depend upon the best actor in the witnes~ box. On reflection it becomes almost axiomatic that the appearance of telling the truth is but one of the elements that enter into the credibility of the evidence of a witness. Opportunities for knoWledge, powers of observation, judgment and memory, ability to describe clearly what. has'been seen and heard, as well as other factors, combine to produce what is called credibility .... A witness by his manner may create a very unfavourable impression of h'is truthfulness upon a trial Judge, and yet the surrounding Circumstances in the case may point decisively to the conclusion that he is telling the truth. I am not referring to the comparatively infrequent cases in which a witness is caught~in a clumsy lie. The credibility of the witnesses, particularly in cases of conflict of evidence, cannot be gauged solely by the test of whether the personal demeanour of the particular witness carried a conviction of the truth. The test must reasonably subject his. story to an examination of consistency with the probabilities that surround the currently existing conditions. In'short, the real test of the truth of the 'story of a witness in such a case must be its harmony with the preponderance of the probabilities which a practical and informed person would readily recognize as reasonable in that place and in those conditions. Only thus can a Court satisfactorily appraise the testimony of quick-minded, experienced and confident witnesses, and of those shrewd persons adept in the half-lie and of long and successful experience in combining skilful exaggeration with partial suppression of the truth. Again a witness may testify what he sincerely believes to be true, but he may be' honestly mistaken. For a trial Judge to say "I believe him because I judge him to be telling the truth", is to come to a conclusion on consideration of only half the problem. In truth.it may easily be self-direction of a dangerous kind. The'trial Judge ought to go further and say that evidence of the witness he believes is in accordance with the preponderance of probabilities in the case and, if his view is to command confidence, also state his reasons for that conclusion. The law does not clothe the trial Judge w£th a divine insight into' the hearts and mind,'of the witnesses. The determination as to what transpired among Ms. Ritchie~ Mr. Wilson and Mr. Krusto is by no means an easy determination. The evidence of persons who had an opportunity to observe the events but had no direct interest in them was of particular assistance. As well,-the few instances where there was some 23 consistency in the various versions of the events provided some assistance to us in bur task. It is appropriate at this point, to set out some of our general conclusions about the credibility of the various witnesses.. As previously noted, Ms. Coccia was not disciplined and therefore does not have an interest in this matter arising in this way. There was some suggestion in Ms. Ritchie's evidence that Ms. Coccia may have had concerns about her own position which might, cause her to support her male colleagues. However, Ms. Coccia described herself as a friend of MS. Ritchie's at the time and her evidence in this regard was unchallenged. On the whole, Ms. Coccia impressed us as a relatively neutral witness. However, Ms. Coccia was not in a position to observe all aspects of the relevant events and we are mindful.of the fact that even when she was observing the events she was occupied with her duties. Mr. Clinton also had no apparent interest in the matter and impressed us as a neutral witness. Ms. Ritchie was contradicted in relation to events surrounding the incident by persons having no direct interest in the matter in three separate instances. We are compelled to conclude that Ms. Ritchie was not being truthful in her sworn testimony in relation to these incidents and thus we must approach the rest of her testimony with special caution. With respect to the version of events put forward by Mr. Wilson and Mr. Krusto, a sequence of events in which Ms. Ritchie would have kneed Mr. Krusto in the groin after 24 being released by him strikes us as inherently improbable. We are in agreement with Mr. Morris' conclusion that none of t~he principal actors were being entirely truthful as to what actually transpired.. '. Our conclusions of fact are perhaps best expressed in the context, of the chronology of events. It is apparent that this unfortunate sequence of,events commenced With an exchange in the form of remarks that may be characterized as teasing or sarcasm which were. mutual and in no way intended to offend. We find Ms. Ritchie's-evidence as to what transpired at the beginning of the interchange to be more inherently probable than the version of / the events put forward by Mr. Krusto. While we accept that she did so in the course of her access to the kitchen bein~ blocked, on Ms. Ritchie's own evidence, it was she that initiated the physical aspect of the horseplay, by wiping her hand on Mr. Wilson. When Mr. Wil~on and Mr. Krusto responded by wiping their. hands on her, we accept that she expressed, a verbal objection, however Ms. Ritchie acknowledged in her evidence that she was a participant in horseplay at this point. There is no corroboration for Ms. Ritchie's evidence that She was kicked by Mr. Wilson and as previously indicated, that allegation is not made ~n her written statement. Whatever transpired, her acknowledgement that her response at this point could have been "I'm going to get You", coupled with chasing or 25 following M~o Wilson, could reasonably have conveyed the impression that she continued to be a willing participant in horseplay. The next sequence of events relates to the water. We are unable to accept Ms. Ritchie's evidence that she was not a participant in the throwing or flicking of water. Ms. Coccia was extremely clear in her evidence on this point and we accept her evidence in this regard in preference to the testimony of Ms. Ritchie, It is apparent that the horseplay then escalated to what might be described as wrestling. Ms. RitChie's testimony that at this point she said "leave me alone" is corroborated by Mr. Swann's testimony and we accept her evidence in this regard. Given this statement we are unable to accept that Ms. Ritchie was the physical aggressor at this point. Rather, it is our view that Mr. Krusto was the aggressor. Mr. Krusto should have stopped when Ms. Ritchie.said "leave me alone" and he was wrong not to have done so. However, it is our conclusion that in spite of indicating verbally that she wished to be left alone, Ms. Ritchie actively participated in the pushing and shoving that followed. The evidence of Mr. Wilson and Mr. Krusto that Ms. Ritchie demonstrated outward signs of being a willing participant in the ensuing physical encounter was corroborated by Ms. Coccia and Mr. Clinton and we therefore accept their evidence in this 26 regard. However, we also accept Ms. Coccia's evidence that at one point Mr. Krusto and Mr. Wilson had Ms. Ritchie~bent forward with her arms behind her back. This was clearly an escalation of .the pushing and shoving encounter that had been going on and was 'a situation where Ms. Richie was being fully restrained by two more powerful persons. It was common ground between the three participants that Ms. Ritchie kneed Mr. Krusto in the groin. Unfortunately, there was no evidence from a "neutral" witness as to Precisely what took place at this time. As previously noted, we found the version of events put forward by Mr. KruSto and Mr. wilson to the effect that Ms. Ritchie .was immediately released at the first point that · she indicated that she no longer wished to participate in - horseplay ~nd that she then assaulted Mr. Krusto to be simply implausible. However, ~Ms. Ritchie's testimony that after'she kneed Mr. Krusto in the groin the physical encounter continued, with Mr. Krusto continuing to participate in it, is also implausible. It strikes us as highly unlikely that this occurrence would not have brought the physical encounter to a conclusion. Indeed, the evidence of Mr. Krusto and Mr. Wilson to' the effect that it was brought to a conclusion at this point is corroborated by the testimony of Ms. Coccia. Ms. Coccia testified that she heard Ms. Ritchie indicate verbally, with some force, that she wished, the encounter to end, that Ms. Ritchie made a comment about "balls" and that Ms. Ritchie then sat down 27 beside her. While, as previously noted, Ms. Coccia prepared a brief written statement which suggested that the physical encounter did continue as Ms. Ritchie indicated it did, Ms. Coccia's more detailed statement, as well ~as her detailed evidence before the Board, was that the incident came to a conclusion at that point. If the events had transpired as Ms. Ritchie suggested, it would have been apparent that she was not a willing participant in the physical encounter. The evidence of Mr. Clinton and Mr. Ivask on this point is to the contrary. On all the evidence, we think it most probable that the physical encounter, including the telephone call from Mr. Clinton and the exchange about the handcuffs, took place prior to Ms. Ritchie kneeing Mr. Krusto in the groin and that the physical encounter concluded at that point. We would note that if we were to accept Ms. Ritchie's evidence that the physical encounter continued as she suggested,' Mr. Krusto would have. been involved in extremely serious misconduct. At'that time there could have been no ambiguity as to Ms. Ritchie's consent and continuing to engage. her in any kind of physical encounter could only be construed as assaultive behaviour. The allegation that Ms. Ritchie's breasts were touched in the course of an ensuing encounter enhandes the seriousness of the misconduct alleged. To make our findings abundantly clear, we reject the allegation that the physical encounter continued after Mr. Krusto was kneed in the groin and we do not accept that Ms. Ritchie's breasts were touched in the course of these events. 28 ~ In our view, the most likely sequence of events was that Ms. Ritchie was hurt in'the horseplay, or simply decided that she was not prepared to participate in it'any further, Which resulted ih her verbal indication that she wished the horseplay to stop. Mr. Krusto, most probably not appreciating that Ms. Ritchie truly wished the horseplay to end, did not immediately release her, with Ms. Ritchie then kneeing him in the groin to ensure her immediate release. The conclusion that Mr. Krusto did not appreciate that Ms. Ritchie wished the horseplay to end is consistent with the uncontradicted evidence of Mr. Krusto that he subsequently approached Ms. Ritchie to find out what had gone wrong. While it is our conclusion that it is most probable that Mr. Krusto did not fully appreciate that'Ms. Ritchie'wished no further involvement in horseplay, 'he was clearly wrong not to stop immediately upon her verbal direction to him to stop. Ms. Cocc~a{s testimony was that Ms. Ritchie's voice was raised when she made this statement. Notwithstanding the preceding events and Mr. Krusto's not unreasonable assessment that Ms. Ritchie was a willing particiPant in horseplay, her verbal communication to him to stop.should have resulted in her immediate release. Ms. Ritchie's actions were also clearly wrong in a number of respects. Calling'for the assistance of Ms. Coccia and/or Mr. Swarm would have been a much better alternative than kneeing Mr. Krusto in the groin. Most serious, however, is her allegation 29 that the physical encounter continued after Mr.. Krusto was kneed in the groin, an allegation which we have found to be unfounded. While, as Mr. Ryder emphasized, it was clear from the evidence that horseplay existed and was tolerated in this workplace, the evidence did not establish, that physical horseplay which resulted in injuries was the norm or was acceptable. We are of the view that the Employer was quite correct in imposing discipline in these circumstances. Mr. Benedict submitted that if we rejected Mr. Krusto's evidence in any material respect a reduction of the penalty imposed by the Employer would be inappropriate. The principle expressed by Mr. Benedict is one that is applicable in many circumstances. However, we have rejected aspects of Ms. Ritchie's evidence as well but we have no authority to adjust her penalty in any waY. It is our view that Ms. Ritchie and Mr. Krusto bear equal responsibility for this unfortunate series of events and thus the significant principle in terms of Mr. Krusto'~ penalty is ensuring equity of penalties. Accordingly, while we might well view the original penalty imposed by the Employer on Mr. Krusto as a reasonable penalty for such behaviour in many instances, in the case before us we are of the view that an inconsistency in penalties would be inappropriate. We would also point out that both Ms. Ritchie and Mr. Krusto have experienced damage to their personal and professional reputations which, prior to these events, were both 30 exemplary. As well, we wish to point out that while Ms. Ritchie and Mr. Krusto must bear responsibility for their actions, those actions must be viewed in the context of a work environment in which, .like many male dominated work environments, the integration of women is not without tensions and difficulties. It is apparent that in the background of these events was a feeling on the part of Ms. kitchie that she ought to participate in horseplay in order to "fit in", notwithstanding her real preference not to do so. Also in the background is the culture of a male dominated work environment where Mr. Krusto's manner of relating to'male co-workers would not require sensitivity to the kind of ambiguity that a female co-worker might experience in relation to engaging in horseplay activity. In the result, Mr. Krusto's suspension is to be reduced.to two days and he is to be compensated for the remaining portion of' his original suspension. All relevant records are to be amended accordingly. We retain jurisdiction to aeal with any. difficulties that the parties may experience in the calculation of monies owing or with respect to any other matter that may 31 arise in the implementation of this decision. Dated at Toronto, this~I~day of July , ~995 S.L. Stewart - vice-Chair .I~J. Thomson - Member ADDENDUM RE: G.S.B. # 3125/91 (KRUSTO) This Member is in agreement with the award in this case. Certainly the'statement at page 29 of the award is agreed .to, as follows: "We are of the view that the Employer was quite correct inimposing discipline in these circumstances:" However, this Member does have some difficulty with the statement that, "It is our view that Ms. Ritchie and Mr. Krusto bear equal responsibility for this unfortunate series of events and thus the significant principle in terms of Mr. Krusto;s penalty is ensuring equity of penalties". (Page 29 of award)' That is, it was apparent that Mr. Krusto engaged in a physical activity that was unwarranted. As stated in the award at page 26, "This was clearly an escalation of the pushing and shoving encounter that had been going on and was a situation where Ms. Ritchie was being fully restrained by two more powerful persons". In view of the above, this Member might, therefore, have assigned a heavier penalty to Mr. Kmsto than to Ms. Kitchie. However, this physical excess engaged in by Mr. Krusto was.more than offset by Ms. Ritchie's version of the alleged misconduct of Mr. Kmsto, as it. was analyzed at pages 27, 28 and 29 of this award. - 2 The subject incident in this case is clearly an example of a classi~ situation where "horseplay" escalates, - gets out of control, - and goes wrong. As stated earlier, the Employer has a responsibility to endeavour to control such activities and, where warranted, to impose discipline. F. T. C011ict GRIEVANCE C,OMMISSION DE SETTLEMENT REGLEMENT BOARD DES GRIEFS 180 DUNOAS STREET WEST, SU;TE 2100, TOF~ON'f'O, ONTARFO. MSG tZ8 TELEPHONE/T~LL~F'HO~NE: [416) 326-;'388 ~80, RUE DUNOAS OUEST, 6UREAU 2'~00, TORONTO (ONTARIOI. MSG 1Za _ _ ,=A~SIMtLE/T~LECOP;E : (416)~_3~26-1396 3136/91 " iN THE NATTEB OF ~N ARBITRATION Un,er THE CROWN EMPLOYEES COLLECTIVE B~RG/~INING Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN OPSEU ..(Mitchell) Grievor The Crown in Right of Ontario (-Ministry of Labour) Employer BEFORE: G. Charney, Q.C. Vice-Chairperson E. Seymour Member M. O'Toole '~ Member FOR THE P. Chapman UNION Counsel Ryder Whitaker Wright Barristers & Solicitors FOR THE C. Riggs .. EMPLOYER Counsel Hicks Morley Hamilton Stewart Storie Barristers & Solicitors HEA~.ING March 9, 1993 The issue between the parties is an interpretation of Article 14 -'Call Back: 14.1 An employee who leaves his place of work and is subsequently called back to work prior to the starting time of his next scheduled shift shall be paid a minimum of four (4)-hours' pay at one' and. one-half (1%) times his basic hourly rate. The facts are not in dispute. The matter concerns an occupational health and safety officer (an inspector) who was required to perform work after his regular scheduled day and not Contiguous to that day. There is an on-call rotation system between inspectors. They are paid at the rate of .25¢ Der hour for keeping themselves in a state of readiness. If called, the practice has been, to pay them time and one-half their normal rate for the time they spend doing work. The practice is as follows: 1) If the inspector is required to leave home as a result of the call, Article 14 would apply and the inspector would get'call back pay of a minimum of four hours. on some occasions, the matters can be resolved by telephone from his home. In that event, the inspector is paid at the rate of time and one-half for the time he spent on the phone, but no minimum call in time. ~ On November 25, the grievor, Mitchell, took a call which was a matter he could resolve on the.telephone, which he did in some 45 minutes. He was paid time and one-half and the grievor wants to b~ paid for four hours on the grounds that in his view, he was called 3 back to work. These are the facts. Mr. Mitchell, the griever, gave evidence that inspectors are people on call, either-as volunteers or by.assign~ent~- ~The~--are expected to leave home where necessary to deal with the calls. There are on-call guidelines from the employer: 8) Once the officer has agreed to respondto the call the following may come into effect depending on how the call is responded to: if the officer deals'with the matter by telephone then overtime at 1% times his normal hourly rate aDplies for the time taken to effectively deal with the emergency. If the officer decides that he must travel to the location in question, the then applicable call back provisions of the collective agreement apply. 9) Prior approval of overtime is deemed given for /such occurrences as a work refusal, critical accident or fatal accident when an inspector is notified by Queen's Park, 10) An inspector who has volunteered or been assigned on- call duty and is unable to attend a worksite where necessary in response to a call or who cannot attend within a reasonable time will contact the officer who is next on-call and ask that person to attend in their place. Inspectors are mostly called when there is a refusal by employees to work for health and safety reasons, and the employer and the union cannot resolve the matter. '.They are emDowered to order the work to. stop or to order other corrections. They are also called out in the event of critical'or fatal injuries. Mitchell's evidence was, that from time to time, matters can be resolved over the phone by talking to the employees, union and employers, and/or making suggestions which enable them to resolve the matter internally. On November 25, the day in question, the call came as a result of a problems at the Cami Plant in Ingersoll.. Mitchell spoke to the plant supervisor, who tol~ ~i~ ~he~e was a problem with~a piec~ of machinery. Modifications had been made. He then spoke to the worker representative on the Health and Safety Committee and verified the'manager's story. He then told them that they could go ahead and use that. piece of equipment and advised them to contact the London office so they could follow up. In all, it took about 45 minutes. There was no report filed. He left the matter up to the London office for follow up. His evidence is that if he attended, he would have looked at the equipment and the result would have been the same. He normally prefers doing the inspection personally, and spends about 80% of his time in the field and about 20% of his time in his office. He does not go to his office on a daily basis. He drives a government car and has a cellular phone and pager in the 6ar. He has resolved other matters by telephone during the working day. His shift · commences when he steps into his car. On. cross-examination, he agreed the rate for on-call has been raised to $i.00 per hour, and the witness said that he was a volunteer and he reserved the right to say no to being on-call. He believes he should have been paid four hours at time and one-half. He agrees that he is being paid $1.00 per hour because he might be inconvenienced. On these facts, the Union argues that the clause simply says that an employee must be called back to work. It does not say, 5 back to the place of work, it merely means back to work, and since both parties agree that when-the telephone Tings he is working, he has been called back to work. The Union further argues that the key element is when it occurs, here, there must be a break in the workday. Since there is a time break, and since the employer agrees it is overtime, therefore, is a call back under Article 14.1, which simply means that they are required to perform work in that time frame and it is recognized by the Government'that he performed work. The facts are that it does not matter where he is, he has been called back to the performance of his duties. Since the performance of his duties has nothing to do with the place of work, he has therefore been called back to work. The Union cited the case of OPSEU CBaker/Elliott) and The Cro~n in Right of Ontario (Ministry of Labourk GSB Case No. 90/8'9 (B. KirkWood). That issueinvolved health and safety inspectors who went to a job cite and the ministry argued that Article 14 did not apply to them. The arbitrator found that it did in fact apply. The Union also cited the case of Re The Oueen in Riqht of Manitoba and ManitOba Government Employees' Association (M.H. Freedman, Q.C.) 28 L.A.C. (~d) p. 241, that was a case of an employee involved with the care of children and the functioning of family units. He provides services involving child welfare, mental health, rehabilitation and other kinds of social welfare services. He provides his services in various locations, including at the homes of recipients of the service and at various locations throughout the community. 6 He' provides these services by persona~ ~ontact~ by cqrresDondence and over th9 telephone. (Emphasis Mine) The facts in that case are very similar to ours, there, the grievor had regular working hours, 8:30-4:30 p.m.. and might be required to perform, compulsory overtime service. These overtime services are rotational stand-by services which are generally assigned in advance. If he is on stand-by he carries a telephone pager. He had been paid for overtime for these services. The basis of the grievance was Article 3.06 of that agreement which reads: An employee, if called out or schedules, to work overtime shall receive for the work, compensation for a minimum of three (3) hours at the applicable overtime rate provided that the period of overtime worked by the employee is not contiguous to his scheduled working hours... '' The question for that board was whether the various telephone calls constitute work performed for the purposes of receiving compensation under the. above Article 3.06. The board found that it was not disputed that the grievor is expected to provide service over the telephone and would do a considerable amount of his work on the telephone. He would screen calls on the telephone and follow-up as'necessary. That arbitrator was of the view that the provision of the services by the grievor in that case over the telephone, was an integral part of his job function, and he felt that it was.construing and interpreting the agreement too narrowly 7 to say that Article 3.06 only applies if the'grievor actually leaves his home to provide services from premises other than his home. The arbitrator's view was that, if he is providing a service to the client, which in many cases is best provided over the telephone, and is doing so outside his regular working hours, then in the context of his particular job, he has been "called Out" in essentially the same way as if he attended at the office. The Union also cites'No. 8 from the On-Call Guidelines which suggests that if the inspector deals with the matter'by telephone', that is work. In addition to that, that work starts the moment you accept a call. Working, the Union says, does not mean attending 'at a work site. These employees work from their cars, at work sites, at the office, and on the telephone. All of it is part ~f their 'regularly scheduled shift which starts when they get into the car. If he had received the same call.during the regular work day, he would have handled it in exactly the same way as described. Counsel for the Government argued that what was required was for an employee to physically leave his place of work and be subsequently called back to work for Article 14'i to be applic?ble. Counsel for the Government provided a number of cases: 1. Thomas Bell (Grievor) and The Crown in Right of Ontario (MCSS), Swinton. 2. OPSEU (William Grant) and The Crown in Right of Ontario (MCS), Kennedy. 3. OPSEU (B. Charette) and The Crown in Right of Ontario (MCSS), Wilson. 4. OPSEU (Krete) and The Crown in Right of Ontario (MOL), Verity. 5. OPSEU (J. Harvey, R. Cutrone) and The Crown in Right of Ontario (MTC), Forbes-Roberts. In each of these cases, employees received call back pay under Article 14.1 and in each of those cases the'employee was required or had in fact, gone to a place of work. The arbitrators referred to going back to a place of work and dealt with levels of inconvenience, and that was why, in their view, Article 14.1 applied. Counsel for the Government also suggested that the word "back" refers to being called back to work as to a place of work. From these cases, counsel for the Government argues that Article 14.01 refers to leaving a place of work therefore it deals with a physical movement and therefore subsequently called back to work is also a physical moment as opposed to the word called to work. Therefore, it confirms the intention of the parties that you have to engage in a physical movement. The Government finally argued that there is a difference between called-out in the Manitoba case and called-back as in. Article 14.1. DECISION 'In dealing first with the cases cited by the Government, it must be pointed out that none of those arbitrators really considered the fact, ~hat employees such as the grievor, could do their work on the telephone, and were normally required to do work on the telephone, or that from the moment these employees get into their car, their shift begins. 9 In regard to the ~overnment'$ position that "back" refers to being called back to a place of work, it is my view that back to work is not necessarily a 'place of w0~k, it~is a return to work, which this grievor did when he answered the telephone and resolved the problem at hand. ~ It may Well be that the reason Article I4.i is in the collective agreement is for the reasons cited by the arbitrators in the cases.cited by counsel for the Governmentl However, we have no evidence of negotiating history, and it is my view, that in the absence of that, it is unlikely the Parties considere4 one way or another whether a situatioa like the grievor's would trigger Article 14.1. Therefore, that issue is entirely speculative. For these, employees, working does not mean attending at a work. site. They work from their cars, work sites, in the office and on the telephone. All of it is part of their regularly scheduled shift which starts when they get into their car. If the ~rievor had received the same call during the regular work day, he would have and could have handled it in exactly the same way .as described. In re~ard to the position taken by counsel for the Government, that there'is a difference between called out and called back, that difference escapes me. One might argue that called back is'to a specific place of work, while called out is outside of wherever you are at the moment. In the Manitoba case cited by the Union, the grievor there Derformed in exactly the same way as the grievor here, namely, he solved matters by telephone. He was no more 10 called out to work in the strict sense of the word and perhaps even less so than the grievor was called back to work, which could be interpreted to mean, that he is doing his work. It is clear that the Government considers that the grievor was working since they agreed to pay him at time and one half. They do not agree that he was.called back to work. This is not a case where the grievor answered the telephone and disposed of this matter in a short period of time or did not .accept the assignment. This is a case where the grievor actually performed the work that he normally performs during his regularly scheduled time frame. In the former case, the argument of d_ge minims Could apply, here, that argument would make no sense. The arbitrator in the Manitoba case, was of the view that the provision of 'the services by the grievor in that case over the telephone, was an integral part of his job function. T~at is my · view of what the grievor did in this case, and like that arbitrator, i feel it would be construing and interpreting the agreement too narrowly to say that Article 14.1 only applies if the grievor actually leaves his home to provide services from premises other than his home. In this case especially, it is not clear where "back" is. Could "back" mean his car, or the job site, or indeed a telephone? It is my view that they mean all of these things provided the.griev°r is providing his normal services. In result then, the grievance is upheld and this Board awards the grievor pay in accordance With Article 14.1. If there are any problems with this matter, the Board shall remain seized. DATED at Toronto this 29th day of Nove~er, 1994.. I concur/dissent M. O'Toole, ~ployer Nominee I concur/dissent E. Se~our, Union Nominee