Loading...
HomeMy WebLinkAbout1995-1095ROY96_10_23 ONTARIO EMPLOYES DE LA COURONNE CROWN EMPLOYEES DE L'ONTARIO 1111 GRIEVANCE COMMISSION DE " SETTLEMENT REGLEMENT BOARD DES GRIEFS 180 DUNDAS STREET WEST, SUITE 2100, TORONTO ON M5G 1Z8 TELEPHONErrELEPHONE (416) 326-1388 180, RUE DUNDAS OUEST, BUREAU 2100, TORONTO (ON) M5G 1Z8 FACS/MILEfTELECOPIE (416) 326-1396 GSB # 1095/95, 1096/95, 1097/95, 1098/95, 1099/95, 1100/95, 1101/95, 1102/95, 1103/95, 1104/95 OPSEU # 95F075, 95F076, 95F077, 95F078, 95F079, 95F080, 95F08l, 95F082, 95F083, 95F084 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN OPSEU (Roy) Grievor - and - The Crown in Right of ontario (Ministry of the Solicitor General & Correctional services) Employer BEFORE M. Gorsky Vice-Chairperson FOR THE M. Keys GRIEVOR Grievance Officer ontario Public Service Employees union FOR THE L. Marvy EMPLOYER Counsel Legal Services Branch Management Board Secretariat HEARING February 12, 1996 July 3, 4, 5, 8, 1996 3 Evidence Called on Behalf of the Employer Evidence of Greg Kitzul 1 He has been an employee of the Minlstry since 1986, and was a correctional officer until 1991, when he was promoted to the position of OM14, being the then first level management position On April 24, 1995, he occupied the position of OM16 I was given to understand that the OM16 position is now the first level of management 2 As part of his duties, he was responsible for the care, custody and safety of inmates, numbering approximately 700 3 On April 24, 1995, he was assigned to work the nlght or "B" shift, WhlCh for him was from 1700 hours to 0500 hours the next day 4 He was responsible for the south wing living units, which was where all adult male inmates were "housed " t 5 The other units at the detention centre were the male young offenders unit and the adult female unit 6 There was one supervisor assigned to the female unit, one to the young offenders unit, and one general duty offlcer He 5 12 Shortly after the above incident, the grievor entered the general duty OM16's office and requested an accident report form, WhlCh Mr Marsh gave him 13 The grievor then left the OM16's office but returned shortly thereafter with a completed accident report and two boxes of Ministry issue shoes which shoes he intended to leave in the office 14 Mr Kitzul asked the grievor to return the shoes to the store's department and also asked him to submit an occurrence report wlth respect to the incident involving the lll-fitting Ministry issue shoes 15 Mr Kitzul asked for the occurrence report because it is expected to furnish details with respect to the specifics of the event "when, where, how and why " 16 The grievor then stated that he did not wish to submit an occurrence report, adding that he would not take directions from "this office," and that he did not feel that he had to submit such a report 17 There was a "brlef discusslon" (of approximately 10 minutes) after which the grievor agreed to submit an occurrence report 7 F Indicate any addltional factual information as applicable to actual cause of accident and recommendations which may prevent are-occurrence Mr Kltzul entered employee consult (sic ) with his doctor Re prescription shoes Supply institution wlth note detailing cause/effect of Institution shoes and solution in make/style of shoe to eliminate reinjury 24 Under paragraph G of the form, "Detail any action to prevent are-occurrence, " Mr Kitzul states, "employee allowed to wear his own running shoes for duration of his shlft " 25 There is an entry under paragraph I of the form that this was not a re-occurrence of a previous injury The document was signed by Mr Kitzul on Aprll 25, 1995 26 Mr Roy left the General Duty OM16's office at approximately 0110 hours on April 25, 1995, to continue with his duties, being the night patrol on the second floor of the south wing, using a "MorrlS" electronic clock when performing clock "punches" on three unlts on the second floor He was expected to perform approximately 15 clock rounds through the course of his shift, with each round expected to take approximately 10 minutes 9 32 When he did not receive a response, Mr Kltzul paged Mr Roy again 33 When he did not get a response to the second call, Mr Kitzul called the control offlce (C02 Percy Hawklns) and asked him if he knew where the grievor was 34 Mr Hawkins said that the grievor was then in the staff lounge Mr Kitzul asked Mr Hawkins to inform the grievor that he should call him (Mr Kitzul) at hlS local (225 ) Mr Hawkins informed Mr Kitzu1 after he had done so 35 After waiting for approximately five minutes, during which tlme the grievor dld not call hlm, Mr Kltzu1 proceeded to the staff lounge with the intention of speaking him 36 Upon entering the lounge, Mr Kitzul observed the grievor lying on a couch 37 Mr Kitzul informed the grievor that he had been trying to get in touch with him The grievor acknowledged that he was aware of this but had not responded because he did not have to do so when on hlS break It was not disputed that the grievor was then on his break 11 43 Mr Kitzul spoke in a "normal conversational" tone of voice ,,? at the time he first addressed the grievor upon entering the lounge 44 When he told the grievor what he wished him to do (forthwith complete the two occurrence reports), the grievor responded in a hostile voice and started to "rant" at him 45 Mr Kitzul did not yell at the grievor during their encounter in the lounge, but merely spoke to him in a way that was "to the point and deliberate" so as to make it clear that he wanted the occurrence reports to be completed without any further delay 46 Mr Kitzul left the staff lounge after the above exchange took place 47 Mr Kitzul said he earlier (at approximately 0400 hours) radloed the grievor when he became concerned that his (Mr Kitzul's) shift was to end at 0500 hours and the grievor had not yet submitted the occurrence report as he had been ordered to do I 48 Mr Kltzul stated that he did not order the grievor to obtain a doctor's note Referring to his meeting with the grievor in the OM16's office at approximately 0100 hours on April 25, 13 54 The grievor then said "I don't have to take this harassment I'm stressed" And he then directed a "barrage of comments II at Mr Kitzul Mr Kitzul then ordered hlm to come directly to the general duty office 55 As the grievor proceeded down the hallway and approached the door of the general duty office, Mr Kitzul again ordered him to submit the two occurrence reports, forthwith 56 At that time, Ranjit Wijeyesekere, who had relieved Mr Marsh as the general duty officer, and who was present during the incident ln the hallway, became lnvolved and addressed the grievor, ordering him into the office to complete the occurrence reports However, the grievor was unresponsive "mad, hostile " The grievor responded by shouting about 1I1awyers and grievances and court, II and said "This is harassment I don't have to put up with this You'll be talking to my lawyer You'll see me at a grievance I know my rights " The grievor kept repeating the "same thing" whenever "we" tried to talk to him Mr Kitzul added that he did not address the grievor in an intemperate tone of VOlce at any tlme durlng these exchanges 57 Mr Kitzul stated that Mr Wijeyesekere spoke to the grievor in a normal conversational tone When the grievor was unresponsive to the orders to complete the occurrence reports in the general duty office, Mr Wijeyesekere told Mr Kitzul to 15 3 Later in the same shift, the grievor went to Mr Marsh's " office with the two boxes of Ministry issue shoes, which he intended to leave in the office The grievor is supposed to have sald "Here's your shoes," at the same tlme putting the two pairs of shoes on the office desk, adding "here's your report," being the accident report 4 Mr Kitzul then informed the grievor that he should "keep the shoes and take them back to stores " 5 Mr Marsh was in the office at the time and was present when the discussion concerning the grievor's obtaining a doctor's certlficate took place r 6 It was put to Mr Kitzul that the grievor would testify that he (Mr Kitzul) had brought up the subject of the grievor's obtaining a doctor's note Mr Kitzul agreed that this was the case 7 It was put to Mr Kitzul that the grievor would testify that it was he (Mr Kitzul) who wished the grievor to bring ln a doctor's note Mr Kitzul disagreed 8 Mr Kitzul denied the suggestion put to him that he was "kind of annoyed" because the grievor had brought the two boxes of shoes into the office 17 or napping on his/her break He was then asked if dozing or sleeping would only be a problem if it took place on duty He disagreed with the suggestion, adding that there would be a problem if a CO took a nap on his/her break He acknowledged, however, that as far as he knew no CO had ever been disciplined for "napping" on a break 14 It was put to Mr Kitzul he stood over the grievor to wake him when he entered the staff lounge around 0400 hours on April 25, 1995, and observed the grievor lying down on a couch It was put to him that that is what the grievor would testify to Mr Kitzul stated that he did not recall whether this was the case He did not believe that the grievor was sleeping at the time 15 Mr Kitzul was asked whether he was annoyed because the grievor had failed to respond to his radio call He replied that he was not 16 It was put to Mr Kitzul that the grievor would testlfy that Mr Kitzul started to yell at him while he (the grievor) was lying on a couch In the staff lounge Mr Kitzul denied that he had done so 17 It was put to Mr Kitzul that the grievor would testify that he (Mr Kitzul) told the grievor that he had called him several times Mr Kitzu1 denied that that is what he said, and testified 19 22 Mr Kitzul also denied having told the grievor that he should return to his work because his break was over 23 He also denied having told the grievor, at that time, to "make sure" that he obtained a doctor's report 24 Mr Kitzul acknowledged that he received a radio communication from the grievor around 0430 hours, and that he spoke to him shortly thereafter He acknowledged that the grievor did not sound agitated at that time 25 It was put to Mr Kitzul that the grievor would testify that when he spoke to him around 0400 hours in the staff lounge, he said that he did not "appreciate being yelled at " Mr Kitzul stated that this is not what was said to him Mr Kitzu1 acknowledged that the grievor did tell him, at that time, that he was "all stressed out " He denied that the grievor said that he would obtain a doctor's note if that is what Mr Kitzul wanted 26 Mr Kitzul denied that he was told in the telephone conversation shortly after 0430 hours that the grievor was going to book off sick 27 Mr Kitzul denied that he then told the grievor that he was "not going anywhere" until he completed the incident reports 21 32 He acknowledged that he had requested the grievor, on more than one occasion, to enter the general duty offlce whlle he and Mr Wijeyesekere were outside of that office 33 Mr Kitzul was asked whether Mr Wijeyesekere had, at that time, told the grievor to "Do as you're told Go lnto the office " Mr Kitzul dld not answer responsively and stated that he did not recall anything the grievor said at that time 34 He stated that there was a conversation between the grievor and Mr Wijeyesekere at that tlme, but could not recall what Mr Wijeyesekere said 35 Mr Kitzul denied that he was then "getting annoyed with the grievor " 36 Mr Kitzul was asked "The grievor was standing outside of the office and refused to go into the office and you're not annoyed?" He answered that he was not annoyed, that he was not the person speaking at the time, and that he behaved in a "business-like" manner It was as a result of the direction from Mr Wijeyesekere that Mr Kitzul gave the grievor an order to go into the office 37 It was put to Mr Kitzul that Mr Wijeyesekere had said at the time that if the grievor did not do what Mr Kitzul ordered, i , , 23 On the night of April 25, 1995, Mr Roy was not responsible for feeding inmates A CO must remain on the second floor at all times 41 He agreed that between 0545 and 0600 hours there are two staff members in Unit 2A and one staff member to cover Units 2B and 2C 42 It was put to him that the four staff who remain on the floor after 0600 hours experience a "quiet time II He denied that this was the case 43 He stated CO's must submit occurrence reports "prior to the end of their shift II 43 Mr Kitzul was asked if he ordered Mr Roy to submit the two occurrence reports before he (Mr Kitzul) left the institution - the request being made when he spoke to Mr Roy in the lounge Mr Kitzul stated that he could not recall if this was the case, but he recalled that at some point he had asked the grievor to submit the reports prior to Mr Kitzul's leaving the lnstltutlon at the end of his shift, which is prior to the end of the grievor's shift 44 It was put to Mr Kitzu1 that the incidents which he wished the grievor to write up in the form of incident reports did not 25 when he stopped Mr Roy from writing up an occurrence report Mr Kitzul stated that he had no recollection of any such event It was put to Mr Kitzul that the incident that was being written up followed an inmate assault on Mr Roy Mr Kitzul stated that he did not recall the particular incident, but did recall an incident when Mr Roy was assaulted by an inmate 50 Mr Kitzul was asked if he recalled ordering Mr Roy to watch the yard when he (Mr Roy) was writing up an occurrence report in June of 1996 Counsel for the employer objected to this questlon because it related to matters occurring after the date of the grievance The Board ruled that the question was a proper one in the circumstances, as it related to Mr Kitzul's practice concerning the writing up of occurrence reports, and evidence could be called to show that the practice in June of 1996 was not the same as it was in April of 1995 Mr Kitzul answered that he recalled the incident, stating that he directed Mr Roy to go to the yard, but did not order him to do so The assault referred to involved an inmate bumping Mr Roy on the way back from the yard 51 It was put to Mr Kitzul that the result of havlng the grievor watch the yard, in the circumstances described, meant that the occurrence report would not be completed before the end of Mr Kitzul's shift Mr Kitzul did not answer responsively, but stated he did not know when or if he obtalned the report in question 27 Roy submitted the accident report form indicating that wearing the Ministry issue shoes had resulted in injury to his feet, he (Mr Kitzul) suggested to the grievor that if he required "speclal footwear" he should see his doctor and get a "note or certificate" to that effect Mr Kitzul reiterated that he was "just suggesting" and not "ordering" the grievor to obtain a doctor's note or certificate, because the grievor had indicated that the Ministry issue shoes had injured his feet 4 Mr Kitzul commented on his answer in cross-examination to the question whether between 0600 and 0645 hours was the best time to fill out occurrence reports He stated that it "could be a good time" but not in this case because the grievor had all of the "evidence" he needed to wrlte up the report and was aware that Mr Kitzul would be leaving the institution at about 0430 hours Evidence of David Marsh 1 He has been employed at the detention centre for 16 years, commencing as a CO in 1980 He became an OM14 in 1989 and an OM16 ln 1992 2 He was on duty during the evening of Aprll 24, 1995, and recalled the "shoe" lncident He was on the night shift at the 29 7 Mr Roy, addressing Mr Kitzul, stated that he had "already reported it " Mr Kitzul then informed Mr Roy that he was still required to complete an occurrence report with respect to the incident 8 Mr Roy stated that he would merely copy the employee accident report Mr Kitzul again told Mr Roy that he would have to complete an occurrence report 9 Mr Marsh first indicated that after the grievor told Mr Kitzul that he was going to copy his accident report on an occurrence report form, Mr Kitzul nodded his head in the "affirmative " He later testified that Mr Kitzul did not tell Mr Roy that he could merely copy the employee accident report Mr Marsh then said that he could not recall if Mr Kitzul had told him this He then stated that after Mr Roy indicated that he was going to make a copy of his employee accident report, he i (Mr Marsh) could not recall himself nodding, one way or another, and that he could not "see" if Mr Kitzul had nodded in response to Mr Roy's statement, adding that Mr Kitzul was "out of [his] view at the time " 10 During the course of the conversation, Mr Roy had addressed both himself and Mr Kitzul when he said that he would "not take direction from this office " Mr Roy then said "If the 31 13 Mr Marsh testified consistently with the above statement that after leaving the office to make a photocopy of his accident report, Mr Roy returned to the office carrying two boxes of Reebok runnlng shoes and placed them on Mr Marsh's desk, saYlng that "we" could return them to stores Mr Kitzul said that Mr Roy should return them to stores During the course of the conversation between Mr Kitzul and Mr Roy, Mr Kitzul's tone of voice was said to be "normal," and he was said to have spoken in a "conversational" way He stated that Mr Roy's tone of voice was similar to that of Mr Kitzul What caused Mr Marsh concern was not Mr Roy's tone of voice or demeanour but the fact that he stated that he was not going to take direction from "this" offlce Cross-examination of Mr. Marsh 1 Mr Marsh was asked if Mr Roy had agreed to provide an occurrence report as requested by Mr Kitzul and answered "I believe that to be so " 2 Mr Marsh was asked whether Mr Roy also agreed to furnish a medical note and answered "no " 3 Mr Marsh stated that Mr Kitzul was Mr Roy's immediate supervisor and that is why he was surprised when Mr Roy said that he would not take direction from "this office " 33 Detention Centre, to allow you the opportunity to respond to the following allegation, that On Tuesday, April 25, 1995, you failed to obey a direct order of your supervisor In attendance at the meeting were you, Mr M Todd, employee representative, Mr J Rutherford, Manager, Staff Services, and the undersigned On Tuesday, April 25, 1995, at approximately 0030 hours, you informed an operational manager that your feet were sore from wearing newly issued ministry footwear After hearing your concern, the operational manager permitted you to wear your own shoes for the remainder of the shift At this time, you both carried on with your respective duties A short time afterwards, approximately 0100 hours, you arrived at the operational manager's office and requested an Employee Accident/Injury report You were subsequently given the form and after completing it, you excused yourself to photocopy it Upon your return to the operational manager's office, you placed two boxes of shoes on the manager's desk stating "Here's your shoes, here's your form " You were instructed by the operational manager whom you originally spoke with, to keep your shoes and return them to the stores You were further instructed to submitted the usual occurrence report to accompany the employee accident form Your response to the above, with two operational managers present, was that you don't take direction from this office and if need be, the superintendent can send you for a mandatory medical, then doctors would get involved Ultimately, the manager requested that you include any relevant information in the occurrence report According to the occurrence report submitted by the manager, you agreed and left the office At 0415 hours, the manager contacted you by radio and received no reply The manager spoke with the main control officer who confirmed you were in the adjacent staff lounge The control officer told you to contact the manager at extenslon 225 You did not contact the manager as requested, which caused the manager to report to the lounge to locate you When he did, you were discovered in the lounge lying on the couch The manager asked you if you knew that he was trying to locate you, to which you replied 'Yeah, I'm on break, f i 35 In determining the appropriate penalty, I have considered your 17 years employment record A file review also reveals that you have been disciplined prevlously for falllng to obey your supervisor's instructions My greatest concern, however, is the fact that you do not accept any culpablllty whatsoever in this matter Consequently, a substantial penalty is warranted Accordingly, you are to be suspended without pay for three eight hour shifts This 24 hour suspension will be served on Wednesday, June 21st, Thursday, June 22nd and Friday, June 23rd, 1995 You will return to work on Monday, June 26th, 1995 at 1845 hours You must appreciate that if you commit a similar offence in future, a more severe penalty, up to and including dismissal, may occur If you have any questions with respect to this correspondence, please contact me directly The previous discipline referred to in Exhibit 16 is set out in Exhibit 17, being a letter of July 11, 1991, addressed to Mr Roy from C Mahaffy, Deputy Superintendent, which is as follows July 11, 1991 Confidential Mr M Roy Correctional Officer 2, Male Unit . Metropolitan Toronto West r Detention Centre r Dear Mr Roy A meeting was held on July 9, 1991 in the boardroom of this institution to allow you the opportunity to respond to the following allegations (1) that on June 26th, 1991, you disobeyed the lnstructions of a supervisor, and further 37 shift supervisor of your intention to alter normal escorting/transportation arrangements I am satisfied that, as a correctional officer with 13 years' experience, you knew that you had a responsibility to follow your supervisor's instructions and to communlcate your concerns to your supervisor prior to leaving the institution Furthermore, you knew you were deviating substantlally from the 'side-by- side' security instructions given to you when, without authorization, you chose to drive the second vehicle Therefore, I find that allegation one is substantiated In response to the second allegation, you admitted culpability and explained that, having had a busy morning on the front desk, you "just didn't think to contact your supervisor or sign out" when you left for lunch In view of your admission, allegation two is substantiated I have reviewed your employment record and find that you were reprimanded on March 8, 1989 by former Deputy Superintendent MacKinnon for releasing an inmate from custody without the authority to do so Otherwise, your work performance has been evaluated as being in the satisfactory to commendable range In view of the foregoing and your commitment to perform within the parameters of the authority inherent in your position in future, I find a reprimand is appropriate in each instance If similar offences occur in future, however, a more severe disciplinary penalty may be imposed 4 In stating that he referred to Exhibit 17 when deciding upon the penalty, Mr Ellison elaborated that he did not give a "tremendous amount of welght to [l t] " He added that his greatest concern in arriving at an appropriate penalty was the grlevor's reluctance to accept responsibility for his actions 39 6 He also referred to Standing Order Number 23 for the institution, also dated May, 1991 (Exhibit 18B, the relevant :/ portion of which is as follows A report must be submitted promptly to the supervisor prior to the completion of the employee's shift The last paragraph of Standing Order Number 23 states Shift supervisors may authorize overtime to enable staff to complete reports 7 Mr Ellison was directed to the second-last paragraph of Standing Order 23 requiring that the report "be submitted promptly to the supervisor prior to the completion of the employee's shift," and stated that the reason for this was because of "the nature of the business, including the volume of business," and because "informed decisions must be arrived at," and added that it was necessary to recelve reports in a "timely fashion " 8 Mr Ellison stated that the grievor was insubordinate in failing to complete an occurrence report by the end of the shift after being required to do so based on lIa clear order" from his supervisor Mr Ellison did not indicate what he meant when he t referred to "end of the shift" and did not explain whether it was the end of the grievor's shift or the end of Mr Kitzul's Shlft ~ t [ 1 [ f r. l ~ 41 2 Mr Ellison acknowledged that S 0 23 only required that an occurrence report be filed before the end of an employee's shift He was then asked to agree that there was no requirement to complete the occurrence report before the supervisor requesting it had gone off shift He replied that the occurrence report must be completed by the time directed by a supervisor, either "immediately" or at the end of an employee's shift 3 In noting that the grievor was suspended for three eight- hour shifts, being those of June 21, 22 and 23, 1995, Mr Ellison was asked whether the grievor had been scheduled to work the afternoon shift for those three days He replled that he did not know if this was the case 4 He was asked whether he was aware that the grievor had shifts booked for this period and replied that he did not 5 He was asked whether there was a practice at the detention centre to allow employees who had been suspended for a certain number of days to work overtime shifts during the period of suspenslon He replled that there was no such practice 6 Nevertheless, counsel for the employer agreed that the employer would pay the grievor for three overtime shifts he was booked to work but was prevented from working during the period of his suspension 43 shift postings are issued These are basically "instructions" (from Mr Marsh on the shift in question) Mr Kitzul was present at the tlme 5 His next contact with Mr Kitzul occurred shortly after midnight on April 25, 1995 Mr Roy was experiencing difficulty with the Ministry issue Reebok shoes he was wearing and he reported this to Mr Kitzul, informing him that the shoes were too small, irritated his feet and were causing foot damage He said that the shoes were extremely uncomfortable and that he would have to remove them 6 Mr Kitzul was said to have indicated that he found it difficult to believe that the shoes "couldn't" fit and "couldn't" be comfortable Mr Roy was upset by Mr Kitzul's response because he felt he was being treated "like a child " 7 Mr Roy then went to his locker to get his own "running shoes" that he had worn to work, as well as a fresh pair of socks, and returned to work He put his own shoes on at that time, but not the fresh pair of socks 8 On the way back to the second floor he entered Marsh's office to obtain an employee accident injury report form 45 doctor's note] would have to be submitted" by him Mr Roy also testified that Mr Kitzul also said "I want an occurrence report on this " 14 Mr Roy stated that he acknowledged that he would obtaln an occurrence report He also vlgorously denied that he had ever said to Messrs Kitzul and Marsh that he would not "take direction from this office " 15 After Mr Roy changed his socks and put on hlS own shoes, Mr Kitzul was said to have made further reference to "certain issues in the past that had already been dealt with in the past " The reference included an incident when Mr Roy'S had allegedly worn non-instltutional issue shoes and an lncldent when he was not permitted to leave the lnstitution Mr Roy also referred to a "predicament" that he had approximately a year ago prior to the incident because of certain physical problems he suffered from which he felt Mr Kitzul was lmproperly alluding to 16 Mr Roy stated that he told Mr Kltzul that the problems being referred to by Mr Kitzul had already been dealt with If Mr Kitzul had any ongoing concerns about the grievor's physical condltlon, he could communicate with the administration with respect to those "partlcular ltems " 47 21 He described Mr Kitzul as being a "little stern" when twice informing him that he wanted an occurrence report and a doctor's note 22 After exiting Mr Marsh's office, Mr Roy returned to his duties 23 His next contact with Mr Kitzul was after 0200 hours 24 Mr Kitzul encountered Mr Roy and another CO, Frank Itwaru, and proceeded to make rounds with Mr Roy 25 While Mr Roy and Mr Kitzul were carrying out rounds, Mr Itwaru was serving as back-up Mr Kitzul performed his examination of the cells, and Mr Roy "walked" the distance of the unit and punched the clock at the appropriate station areas r 26 There was no discussion between Messrs Roy and Kitzu1 at that tlme concerning Mr Roy's furnishing an occurrence report and/or a doctor's note I' 27 The grievor took two breaks during the shift, one around [ " f. 2200 hours and the other at about 0410 hours During the second [ I , break, Mr Roy left the "floor" for the staff lounge He set his , ~ ~, 1 "alarm" and had a "little snooze " f ~ , , , , r r ! r 1 , r ~, , .. t ! 49 32 When he first observed Mr Kitzul yelling at him, he started to sit up, but, when he tried to do so, Mr Kitzul was "in my face shouting at me " Mr Roy stated that in the circumstances, he felt he had to back away for his own safety and to defuse the situation As he backed away from Mr Kitzul, Mr Kitzul continued to "come at me, all the while shouting things at me All I could do was respond in a defenSlve manner and appeal to him by stating that he was to stop yelling at me " He estimated that the yelling lasted between one and one-and-a-half minutes 33 Mr Roy testified that Mr Kitzul repeated his order, stating that he also wanted Mr Roy to complete an occurrence report with respect to his (Mr Roy' s) not responding to Mr Kitzul's radio call He added that Mr Kitzul mentioned "two other reports that I couldn't understand" As Mr Kitzul was about to exit the area, he told Mr Roy that he wanted the doctor's note as well and ordered him to report back to his duties 34 Mr Roy stated that his basic response to Mr Kitzul's words and actions in the lounge was to "back away" for his own safety 35 After he left the lounge, Mr Roy returned to Unlt 2A on the second floor At that time, he encountered Mr Itwaru Using his two-way radio, Mr Roy called Mr Kitzul and asked him to call extension 275, which was located in Unit 2A When Mr Kitzul did 51 this order on several occasions Mr Roy stated that at the time two correctional officers, Andrew Koester and J Marcenkowski, ; were walking approximately 30 to 40 paces from where the grievor and Mr Kitzul were located 39 Mr Roy identified the other person present at the time as Ranjit Wijeyesekere, identified above as the OM16 who replaced Mr Marsh 40 Mr Roy asked Mr Kitzul, on several occassions, to "stop yelling at me," and testified that he "felt threatened at the time " 41 Mr Kitzul then stated "Alright, I'll stop yelling at you - get in the office " 42 The grievor responded "Now that you recognize that you're yelling at me, I want a union representative " Mr Roy explained that "he did not feel comfortable" in a situation where he was being threatened and where he was faced with the hostility manifested towards him by Mr Kitzul He felt that he would be vulnerable and would not be able to mount a defence to allegations made against him should anything occur upon his entering the Shift I C IS office 53 45 At some point Mr Wijeyesekere instructed the grievor to follow Mr Kitzu1's directions and go into the Shift I C ' s office 46 Mr Roy informed Mr Wijeyesekere that he would not go lnto the office with a person who was yelling at him unless he was accompanied by a representative 47 Mr Wijeyesekere then turned to Mr Kitzul and said "If he (Mr Roy) doesn't follow your orders, I'll back you up " Mr Kitzul then looked at the grievor, held up his right hand and touched his index finger to his thumb with a "manufactured" smile on his face and addressed the grievor "Miles, you're this close to being suspended " 48 Two to three seconds later, Mr Kitzul told the grievor that he was being suspended and that he was to "get out," and then told the grievor to follow him The grievor and Mr Kitzul proceeded north in the corridor in the direction of the exit from the building They reached the professional visiting area and Mr Roy turned left to go to the signing out room and signed out Mr Roy said that Mr Kitzul had not anticipated his (Mr Roy's) going in that directlon and he came back to where the grievor was in the signing out room, after which they proceeded to the control unit From there they proceeded to the staff lounge where Mr Kitzul ordered the grievor to "stay there " Mr Kitzul was 55 handed them in to Mr Rutherford (his manager at that time) at 1400 hours 53 He was scheduled to work overtime shifts between June 21, 1995 and the day he was scheduled to return to work, June 26th, at 1845 hours The request to work overtime was made to him after he received Exhibit 16 and just prior to the commencement of the first of the overtime shifts The person who asked him to work overtime was Dick Mothersole, who was a supervisor and member of management 54 In all, he believed that he had been offered three eight- hour overtime shifts and two 12-hour overtime shifts, to be worked between June 21 and June 26, 1995 (to 1845 hours on June 26th) 55 He was instructed to see Tony Ruggeiro, the supervisor of the Young Offenders Department, who informed him that he had consulted with someone (unnamed) who told hlm that the grlevor's ! overtime shifts were to be cancelled because he would be on suspension and barred from the institution from June 21st to June 26th 56 Mr Roy told Mr Ruggeiro that he would volunteer to remove himself from the obligation of reporting for two 12 hour overtime shifts on June 24th and 25th, with the expectatlon that he would 57 59 As a general rule, CO's are required to complete occurrence reports by the end of their shifts They would either remain at v the institution to complete them or could request an "arrangement" to permit them to submit a report on "another date " 60 When a supervisor directed a CO to complete an occurrence report at an earlier time than the end of the officer's shift, he/she would be removed from his then-duties for the "strict purpose" of writing up the requested report 61 Mr Roy had never been requested by Mr Kitzul to complete an occurrence report by the end of his (Mr Kitzul's) shift 62 There have been occasions when a supervisor requested the completion of an occurrence report before the end of the supervlsor's shift He recalled one such occasion in 1995, but i could not remember when Nor could he remember the particular incident He said that he didn't "make it [his] business to do so " 63 Mr Roy was asked what "type" of occurrence report had to be completed before the end of the affected supervisor's shift He referred to situations where an officer would be "medically relieved" of his/her duties for the purpose of immediately writing up a report , ! 59 5 He was asked whether he was aware that OM16s only worked shifts A or B and replied that he did not 6 He agreed that Mr Kltzul was a person In "authorlty" referred to in Exhibit l8A 7 He also agreed that a request to fill out an occurrence report amounted to a "lawful order," and that a refusal to follow a lawful order amounted to insubordination 8 He said that his feet started to hurt from the moment he first put on the Ministry issue Reebok shoes, and the pain steadlly became worse to the pOlnt where he felt compelled to complain and do something about the situation As soon as he put on the shoes, his feet felt "cramped and uncomfortable," and the situation steadily worsened thereafter 9 He was asked why he did not change into his own shoes much earlier in the shift, if he was aware of a problem as soon as he put on the Ministry issue shoes He did not answer responsively but stated that he continued to work until he could not "take it any longer " He stated that he did not "complain much," but tried to do what he could without complaining 61 15 He agreed that he had requested an employee accident form and had completed the first part (Exhibit 11) under Section 1 16 He was asked whether his supervisor then has the obligation to fill out Section 2 of the employee accident report and replied "That's what it says " 16 Mr Roy was asked whether he was "upset" with what Mr Kitzul entered in Section 2 of Exhibit 11, and replied that he was not He was reminded of his earller evidence where he stated that he felt that Mr Kitzul was treating him like a child, and asked whether this did not upset him Mr Roy replied, referring to Section 2 of the accident report, that lt dld not 17 He was asked whether it was at this time that Mr Kitzul suggested that he should obtain a doctor's certificate if he needed special shoes He denied that this had happened The same question was asked of him again and he stated that it was not "true " He took the position that Mr Kitzul had ordered him to obtain a doctor's note He also stated that Mr Kitzul did not say anything else about a doctor's note at that time He was asked why Mr Kltzul had asked hlm to obtaln a doctor's note and replied that it was "something" for counsel to ask Mr Kitzul 18 It was put to him that he was not sick when he filled out the accident report, and he replied that his feet were "lnflamed 63 found it difficult to believe that the Ministry issue shoes could cause damage, although Mr Kitzul did not ask for an opportunity to examine Mr Roy's feet 20 Mr Roy wanted to give Mr Marsh and Mr Kitzul an opportunity to examine his feet, but they did not appear to be "interested" in doing so 21 During the course of Mr Roy's cross-examination, questions were asked with a view to pursuing the employer's position that he was aware of the time when his supervisors, particularly Mr Kitzul, were scheduled to go off shift, however, he was insistent that he had no idea when the supervisors on the male side completed their shifts 22 Mr Roy was asked to produce the occurrence reports that he said he had completed at Mr Kitzul's direction, but said that he was not in a position to do so The matter was pursued and it was put to hlm that he never completed them He replied "not necessarily " He was again asked to produce the reports and was also asked where they were if he could not produce them He replied "In the context of the question, there isn't one " 23 Mr Roy was directed to an occurrence report prepared by him (Exhibit 19) , which bears date April 26, 1995, with the time i being shown as 1400 hours He acknowledged that this report 65 at home would be after the end of the shift He would have recorded that it was his intention to bring those shoes back to the institution and then return the shoes that were causing him pain and damage to his feet He would then have indicated that the Ministry issue shoes were too small and would have asked for a larger size He also would have asked for an "apology for the inconvenience caused to all concerned," which he whould have regarded as IIsufficientll in the circumstances 25 Mr Roy was directed to his evidence made in direct examination when he testified that Mr Kitzul made statements to him which he (Mr Roy) regarded as "demeaning " These statements were with reference to some physical ailment suffered by him approximately a year before the events of April 24-25, 1995 Mr Roy was asked what Mr Kitzul had said to him a year ago that he regarded as demeaning He said he could not recall the exact words used by Mr Kitzul, but they related to a comment concerning his being ordered not to leave the ~nstitution on "outside runs " 26 Mr Roy was asked why he had not lncluded ln Exhlbit 19 any reference to the earlier incident where he felt demeaned He referred to Exhibit 19, page 3, lines 7 and 8 MR KITZUL, ON THE OTHER HAND, WANTED TO CONTINUE TO BROADEN THE ISSUE WHEN I TOLD HIM AN ARGUMENT WASN'T NECESSARY AND THAT I WOULDN'T ARGUE WITH HIM 67 put to him "You had plenty of time between your rounds to fill out an occurrence report " He replied "Not all at once - no " 31 It was put to him that he had indicated that he could complete an occurrence report in approximately five minutes He did not respond to the question 32 He was then asked if he still agreed that he could fill out a report in between five to ten minutes He replied that he could not, and added that the question was "hypothetical" because each case was different It was suggested to him that it would take at most 15 minutes to complete the first report that he had been requested to complete He replied "not necessarily " He agreed that after 0430 hours there would be work to perform when the inmates were awakened, and that this conflicted with his earller explanation that he would then have more tlme to write up a report It was put to him that he would have more to do after 0430 hours and replied "for a period of time " He also agreed that "normally" it was "quieter" between 0030 hours and 0400 hours However, in response to a question that there was "normally" more opportunity to fill out occurrence reports between 0030 hours 0400 hours, he replied "not necessarily " 33 It was put to Mr Roy that he had an opportunlty to follow the order to complete an occurrence report after Mr Kitzul came to the lounge after 0400 hours Mr Roy replied "not on my 69 Evidence in Re-examination of Mr. Roy 1 Mr Roy stated that he did not complete the occurrence reports between midnight and 0430 hours because, on the basis of his past experience, when "working floors," the best tlme "to write" was between 0545 and 0715 hours He did not prepare the report when on his break because he was not paid to write reports during a break, which period was for the purpose of removing him from his regular responsibilities 2 He did not prepare the reports after his break because he did not have an opportunity to do so He explained this by saying that Mr Kitzul had ordered him to obtaln a doctor's note That being the case, hlS "reasoning" was that if he remained in the institution until 0715 hours; then went home and stayed up "long enough" to phone the doctor's office to secure an appointment, attend there for an examination, and obtain a doctor's note to bring back to the institution, he would not have sufficient time to complete the report He referred to the fact that his doctor's office was not open until 10 00 am, and he was only able to secure an appointment at 1 00 P m He stated that he could not be expected to work "around the clock " Given Mr Kitzul's order to obtain a doctor's note, he had insufflClent time to do all that was necessary in order to obtain the doctor's report and also complete an occurrence report 71 4 He heard Mr Roy inform Mr Kitzul "I need to be relieved - my foot is aching and you told me to go and see my doctor I am going to see my doctor and you'll get a report then " Mr Roy is said to have spoken to Mr Kitzul in a normal tone of voice and was neither "shouting nor yelling," but there appeared to be some sense of "urgency" in the way he spoke Mr Itwaru said that Mr Roy told him that Mr Kitzul had been yelling at him in the lounge with his face only "inches" away from him Evidence of Mr. Itwaru in Cross-examination 1 It was put to Mr Itwaru that he had filled out Exhibit 20 after the events that led to its preparation He agreed that this was the case and also agreed with the suggestion that it was a normal practice, and a "good" practice for a CO to fill out an occurrence report as soon as possible He also agreed that there was a period of time between clock rounds when "not much was happening " 2 It was put to Mr Itwaru that if it would take between five , r and ten minutes to complete an occurrence report, he would have had plenty of time to do this during his shift He replied "Yes, that's reasonable " 3 He was asked when he would complete an occurrence report if he had a choice after 0500 hours when the lnmates are up, or 73 1 Mr Itwaru was asked why he had not made any reference in the occurrence report to the fact that Mr Roy told him that Mr Kitzul had yelled at him in the lounge He stated that "I was asked to write a report about what occurred Specifically what occurred I put those In quotes " He added that he regarded the information from Mr Roy about what Mr Kitzul said to him In the lounge as being "hearsay," and that in his opinion it was not information which he "heard directly" and represented information "handed down to me by Mr Roy " Evidence of Percy Hawkins 1 Mr Hawklns has been a CO for 10 1/2 years and was working in the main contrhol area on the night shift on April 24-25, 1995 The entrance to the staff lounge is just across the corridor from the main control area He acknowledged that Mr Kitzul had phoned him and asked him if he had heard him page Mr Roy on the radio He acknowledged that he had done so 2 Mr Kitzul asked Mr Hawkins if Mr Roy was then in the staff lounge, and Mr Hawkins stated that he thought he was Mr Kltzul asked Mr Hawkins to tell the grievor to call him at station 225, being the Shift I C office local extension 75 1 He acknowledged that it was normal procedure for a CO to carry a two-way radio, but did not know whether the grievor was carrying a radio at the time he was being paged by Mr Kitzul He acknowledged that Mr Kitzul had radioed the grievor that evening and may have done so more than once When Mr Roy did not acknowledge the page, he assumed that Mr Roy did not have his radlo on, but dld not regard the lncldent as "significant " 2 When he went into the lounge to tell Mr Roy that Mr Kitzul was trying to reach him, Mr Roy was awake 3 He stated that the exchanges between the grievor and Mr Kitzul were "getting very intense " EVldence of Jarek Marcenkowski 1 Mr Marcenkowski has been a CO at the institution since June of 1991 His shift at the material time was from 1900 to 0700 hours 2 He observed the grievor on the shift in question on a few occasions between 0430 and 0500 hours in the hallway leading to the south wing Mr Roy was then between the entrance to the kltchen and the shift supervisor's office 77 Roy's supervisor and was in a position to give him the orders that he did (3) The orders were clear, and Mr Roy knew exactly what he was required to do in preparing the reports (4) Mr Roy refused to comply with the order or instruction I was asked to note the evidence of Messrs Kitzul and Marsh that the grievor said, after midnight, on April 25, 1995, that he did not "take orders from this department " The report would have taken about flve to ten mlnutes to complete, and there was nothing that kept Mr Roy from completing it promptly 2 The grievor took his break without completing the report and was again asked to do so by Mr Kitzul, but did not comply with the request The grievor never complied with the request, which he admitted during cross-examination 3 Even if Mr Roy's eVldence was accepted, he was still insubordinate 79 Clock rounds take between 10 and 15 minutes, which would leave a half hour every hour to complete occurrence reports Around 0430 hours inmates start to wake up, and there is more activity at that time (3) Mr Roy's evidence was that he recalled Mr Kitzul harkening back to an incident relating to an earlier physical ailment suffered by him, which incident was not referred to in Exhibit 19 (4) Mr Marsh and Mr Kitzul testified that Mr Roy had said that he "would not take direction from this office " The Board was asked to accept that evidence, notwithstanding Mr Roy's denial There was no reason for Messrs Marsh and Kitzul to have fabricated the statement In any event, the statement was not necessary to enable the employer to make its case (5) I was asked to find that no order had been given by Mr Kitzul to Mr Roy to obtain a doctor's note Mr Kitzul referred to it as a suggestion to be followed by Mr Roy if he felt he needed special footwear to be provided by the Ministry, and there was no other reason for him to request 81 he was required to complete this form The supervisor admitted that the grievor's conduct in that case made him angry and that / he had sworn at him In fact, the supervisor received a written reprimand because of his conduct 10 Reference was made to the following statement contalned at p 5 of the Ralph case It is a generally accepted proposition of arbitrators that an employee who disagrees with an order from his employer should, with certain exceptions, obey those orders and later, through resort to the grievance procedure, endeavour to challenge the propriety of the order On the facts of this case, I could not find that the order subjected the grievor to any danger to his health or safety The grievor's statement, that the apprehension of possible court proceedings being brought against him by an inmate had an adverse effect upon his mental health, cannot qualify as an excuse for refusing the order The relationship between the order and the possible harmful impact on the grievor's health is entirely too remote 11 Mr Roy had admitted that the order glven to him was a lawful one 12 The order given to Mr Roy to complete the occurrence reports was "completely reasonable," made "perfect sense" and the imposition of the penalty and the refusal to obey the order were "causally related " 83 18 The fact that the grievor was a 17-year employee "cut both ways " He should have known not to be insubordinate in the circumstances Reference was made to the inapropriate way he manifested his position when he interacted with his supervisor 19 Dealing with Exhibit 1 (the "first" grievance) , the grievance essentially claimed that Mr Kitzul had shouted at the grievor Even if this is true, it did not amount to a breach of the collective agreement and therefore should be dismissed 20 If the Board is seized with jurisdiction to adjudicate the first grievance, it was submitted that there was no proof that the grievor was "humiliated and embarrassed " Mr Roy stated that he felt that he was being treated like a child It was submitted that his feelings were subjective, not objective, and that these subjective feelings ought not to warrant any relief 21 With respect to the grievance set out in Exhibit 2 (the "second" grievance) , where the grievor claimed that he had been denied proper union representation before being suspended, it was submitted that there was no breach of the collective agreement because there was no article that required the employer to furnish him with representation at that time 22 Wlth respect to Exhibit 3 (the "thlrd" grlevance) In whlch there was a claim that the grlevor had been wrongfully suspended ! 85 25 The "sixth" grievance (Exhibit 6) that raises the lssue of unjust dismissal, has already been dealt with 26 The "seventh" grievance (Exhibit 7) is a health and safety grievance based on an allegation that the grievor's health and safety had been threatened by a supervisor The employer states that there was no objective proof of any risk to the health or safety of Mr Roy Even if the Board believed that Mr Kitzul was upset with Mr Roy and yelled at him in the lounge, there was no proof that this conduct created a health and safety risk to Mr Roy It was insufficient that Mr Roy experienced subjective feelings of stress and general upset 27 Reference was made to Union Grievance (311/88) , in dealing with the seventh grievance This was a health and safety grievance respecting a failure to provide appropriate trained staff 28 At page 25 of Union Grievance, the Board states In this instance, the Union is therefore required to establish a causal connection between the differential tralning and a , health and safety risk at the Jail Further, I j' article 18 1 does not impose a standard of absolute perfection Rather, it simply obligates the Employer to make reasonable provision for the safety and health of its employees during the hours of their employment 87 33 The "tenth" grievance (Exhibit 10), was said to represent a four-page elaboration on the eighth grievance Exhlbit 10 refers to seven shifts, three of which Mr Roy worked and was paid for Of the remaining five overtime Shlfts, the employer has agreed to pay for three eight hour shifts On the basis of the grievor's own evidence, he had voluntarily given up two 12-hour shifts in the hope of having them replaced with four eight-hour shifts There was no proof as to whether those shifts were avallable The grievor acknowledged that there was no guarantee that he would receive those shifts Union Argument 1 It was agreed that grievances 8 and 10 were, in effect, the same grievance 2 It was submitted that all of the grievances, except numbers 4 and 9, flowed from the three-day suspension 3 It was submitted that the grievance with respect to the penalty lmposed for lnsubordlnation based on the allegation that the grievor had failed to follow an order to write up two occurrence reports should succeed The grievor had not intended to be insubordinate, and that his failure to write up the reports was as a result of Mr Kitzul harassing him and yelling at hlm to 89 Kitzul ordered him into the office and did not do so for the purpose of having him complete the occurrence reports 8 It was submitted that Mr Kitzul never made it clear when he wanted Mr Roy to complete the occurrence reports 9 It was submitted that Mr Kitzul did not indicate to Mr Roy that he wanted the first occurrence report before Mr Kitzul finished his shift at 0500 hours I was asked to accept Mr Roy's evidence that it was not until Mr Kitzul approached him in the staff lounge that he indicated that he wanted the report, and the further one ordered, immediately 10 It was subm1tted that Mr Roy, until the incident in the staff lounge, could reasonably assume that he was to finish any report requested before the end of his own shift Reference was made to Standing Order 23 (Exhibit 18B), which is consistent with the gr1evor's position That 1S, that he should complete the report before the end of his own shift and not before the end of his supervisor's shift 11 I was asked to accept Mr Roy's evidence that he intended to complete the reports between 0545 and 0715 hours, when he did not expect to be interrupted by clock rounds 91 manner, and this was inconsistent with the evidence of Mr Hawkins 16 Reference was also made to the fact that Mr Marcenkowski testified that he observed the grievor and Mr Kitzul outside of the Shlft I C 's office after 0430 hours, at which time both were heard to have raised thelr voices when Mr Kitzul ordered Mr Roy to get into the office 17 Reference was made to the allegation that Mr Kitzul had denied Mr Roy union representation It was submitted that Mr Roy related in detail the conversation concerning his request for union representation and to be permitted to examine the list showlng which representatives would be available at the time It was submitted that, in the circumstances, it was more probable that Mr Roy requested union representatlon at the tlme of the incident in the hallway It was submitted that Mr Roy was not insubordinate in refusing to enter the office, in the circumstances 18 It was submitted that the grievor wished to but did not have the opportunity to complete the incident reports before the end of his shift because he was escorted out of the building by Mr Kitzul 93 the employee was wrong in exercising his right under the Act The events must be assessed in the light of knowledge available / at the time that the employee refused to work 22 It was submitted that Mr Roy had an honest belief that his health and safety were at risk when he refused to go into the Shift Ie's office when ordered to do so by Mr Kitzul 23 Mr Roy stated that Mr Kitzul was yelling at him, and that the combination of his yelling and h~s demeanour caused him to feel threatened and vulnerable and to conclude that he would be without a means of substantiating his defence if something should happen to him in the office 24 Mr Roy communicated his concerns to Mr Wijeyesekere about having to go into the office with Mr Kitzul, who was said to be in a disturbed state 25 It was submitted that Mr Roy behaved properly when refusing to go lnto the office without union representation when ordered to do so by a supervisor who was yelling at him and who was in a highly-agitated state It was also submitted that Mr Roy was correct in refusing to go into the office while an already bad situation was escalating It did not matter whether there was a real danger to Mr Roy's health and safety, what mattered was 95 cable may have been calculated to annoy Basso However, Basso was being more abras1ve than was Flett ,/ Is provocation a complete defence to a charge of insubordination? In Re Douglas Aircraft Co of Canada Ltd and U A W (1972), 2 LAC (2d) 56 at p 76, Professor P Weiler answered this question in the negative "The fact of provocation does not totally excuse the person who should have shown enough good sense not to respond, but it ordinarily will save him from extreme penalties " This accords with the criminal law's view of acts which provoke a violent response and is usually appropriate for violence in an industrial setting, but I am not here concerned with acts of force The concept of provocation plays a d1fferent role in insubordination cases than in the context of violence A violent act is offensive because of the harm that it causes to the physical and emotional well-being of the victim That harm exists despite provocation which cannot negate the violence Provocative acts may, however, alter the nature of conduct which would otherwise be insubordinate To demonstrate th1S, the concept of insubordination must first be clearly understood I have already defined "insubordination" as a challenge to the authority of an employer to manage the industrial enterprise Consequently, verbal abuse of a foreman engaged in supervisory duties is improper not simply because abusive language is addressed to a supervisor, but because it den1es the author1ty of a representative of management The definition of "insubordination" rests upon the hidden assumption that the challenged authority is legitimate A supervisor's act is supported by legitimate authority so long as both its purpose and the manner in which it is carried out bear a rational relationship to the objectives of the industrial enterprise A challenge to legitlmate authorlty 1S 1mproper precisely because it impedes the accomplishment of those objectives Conversely, a person who refuses to comply with an exercise of authority which lacks legitimacy does not disrupt the industrial 97 IV Provocation is not here a complete defence to the allegation of insubordination, but it is pertinent to the determination of the appropriate penalty In Re Douglas Aircraft Co of Canada, Professor Weiler sa1d, at pp 76-7 Provocation is a particularly important concept to consider in cases of insubordination such as we have here A supervisor has issued an order which the employee should have obeyed When he refuses to obey it, the employee deserves some disc1pl1ne Yet the supervisor has also acted improperly, he has deprived the employee of his rights under the agreement, and he has initiated the conflict It is bad enough that he escapes scot-free because the situation is characterized as one of discipllnary insubord1nation by the employee, rather than as an improper order from supervision It is even worse that it is the same superv1sor (or fellow-member of management) who imposes th1S disc1pline on the employee, while remaining immune from any sanction himself In the several insubordination cases which I have encountered, I have been struck by the fact that it is a sense of the injustice of this fact which largely fuels the grievance I bel1eve lt 1S lncumbent on arbltrators, in deciding what penalty is 'just and equitable' , to scrutinize very carefully the background to these situations of insubordination and ensure that the degree of discipline is carefully tailored to the relative degree of blame of employee and supervisor I heart11y endorse this arb1trator's conclusion that the conduct of a supervisor should not be overlooked, but I arrive at this result by a slightly different path than he did The employee's behaviour merits a lesser penalty not simply because the supervlsor is also at fault The full reason has already been set out The superv1sor's fault weakens the legitimacy of authority, 99 be appropriate in the llght of his senlority, with only one four- year-old disciplinary warning on his record / 29 Reference was made to the overtime shift issue, where the employer agreed that the cancellation of three overtime shifts was improper 30 It was noted that Mr Roy clalmed that he had five overtime shifts scheduled, belng three elght-hour shlfts and two 12-hour shifts According to Mr Roy, he gave up two 12-hour shifts in order to be able to work four eight-hour shifts The union submitted that Mr Roy had not voluntarily given up the shifts when viewed in the context of what had happened It was recalled that the grievor was speaking to Mr Ruggerio at the time, who had called hlm to lnform hlm that the overtime shifts were cancelled because he was then under suspension 31 Mr Roy relied on Mr Ruggerio's advice and took a position that he would not have taken but for the fact of his suspension It was submitted that the grievor ought to be compensated for at least two 12-hour shifts on top of the three eight-hour Shlfts the employer has agreed to pay compensation for I was asked to accept Mr Roy's evidence that he would llkely be glven the four elght-hour shifts f ; ! , 101 38 A request was made for a declaration that the three-day suspension was without just cause and for an order that the J' record of the suspension be removed from the grievor's file 39 Compensation was also asked with respect to the amount the grievor would have been paid for working during the three days that he was suspended Reply Argument of the Employer 1 Reference was made to the provisions of Standing Order 23 (Exhibit 18B), where it is provided that occurrence reports were to be submltted "promptly " 2 It was noted that there was no problem facing the grievor in promptly following the request to prepare the occurrence reports, and reference was made to Mr Hawkins' evidence that his report in this case was completed in 15 minutes 3 If it was not clear to the grlevor, at approximately 0100 hours on Aprll 25, 1995, that he was requlred to complete an occurrence report as soon as possible, he could have been In no doubt that this is what he was required to do immediately on being ordered to do so by Mr Kitzul in the lounge at approximately 0430 hours on the same date 103 Dlscussion and Declsion ~ 1 This is an unfortunate case because, unlike most civil court cases, where the parties are less likely to be involved with each other in the future, the parties before me will have an ongoing relationship, and Mr Roy and Mr Kitzul will continue to work ln proxlmlty to each other A declsion on the narrow issue before me is not likely to resolve the serlOUS underlYlng problems that affect their relationship 2 It was evident to me, after hearing the evidence of Mr Kltzul and Mr Roy, that Mr Roy was increasingly troubled by the fact that he regarded Mr Kltzul as havlng treated hlm ln a way calculated to undermine his self-respect It is difficult to know how long their relationship has been deteriorating, but clearly it had been for at least a year before the incidents of April 24- 25, 1995 I suspect that if it had not been the incident of the ill-fitting shoes that precipitated the exacerbation of the conflict, then it would have been something else 3 After forgettlng his Minlstry lssue shoes at home, Mr Roy decided to wear one of the two palrs of new Mlnlstry lssue shoes that he had at work As soon as he put on the shoes, he notlced that they did not fit properly and caused him discomfort, which discomfort got worse the longer he wore them 105 7 Equally unfortunate was Mr Kitzul's misperception that his order to prepare an occurrence report had been refused because of , Mr Roy's indication that he did not have to take directions "from this office " When the evidence is examined, it can be seen that Mr Roy was referring to his mistaken belief that he had been ordered to obtain a doctor's certificate concerning the damage caused to his feet by wearing the Ministry issue shoes Although acknowledged somewhat reluctantly, Mr Marsh did agree that Mr Roy had agreed, also somewhat reluctantly, to prepare an occurrecnce report as Mr Kitzul ordered 8 I am satisfied that Mr Kitzul, w~th some Just~f~cat~on, was puzzled as to why Mr Roy had not sought permission to change into his own shoes as soon as he was aware that the shoes issued by the Ministry did not fit properly Mr Roy, because of his past perceptions, based on his belief that Mr Kitzul had treated him in a demean~ng manner, viewed Mr Kitzul as treating him "like a child" There is some indication that the mis- communication between them was as a result of ongoing tension dating back to earlier incidents 9 Mr Kitzul's evidence that he regarded Mr Roy as having refused to complete an occurrence report at around 0100 hours is inconsistent with the statement contained in Mr Ellison's letter, at page 2 (Exhibit 16), referring to Mr Kitzul's occurrence report that Mr Roy "agreed" "to include any relevant 107 12 There was no reason for Mr Roy to believe that he was requlred to prepare the occurrence report immediately, or at least before the end of Mr Kitzul's shift The fact that Exhlblt 18B states that "A report must be submitted promptly to the supervisor prior to the completion of the employee's shift, 11 does not mean that the employee must submit it at the earliest time possible The governing statement is "prior to the completion of the employee's shift " There was nothing to prevent Mr Kitzul from ordering that the report be submitted at an earlier time but, in the absence of such a direction, Mr Roy was correct in assumlng that he had until the end of his shift to do so 12 Although it is difficult for me to believe that Mr Roy, with 17 years of experience as a correctional officer, would not know that his supervisor's shift would end before his own, I still regard it as being necessary for a supervisor to instruct a CO to complete a report at an earlier time than the end of the COs shift, if that is what he wished 13 Mr Kitzul had an opportunity to ask Mr Roy for the report to be completed before the end of hls (Mr Kltzul's) shlft, when he accompanied him on clock rounds at 0200 hours on April 25, 1995 14 I also find that the situation was exacerbated by the fact that both Mr Kitzul and Mr Roy were angry with each other as 109 evidently displeased about the order If the order to call Mr Kitzul amounted to a breach of the collective agreement, that should have been the subject of a grievance after obeying the order Although the order to call Mr Kitzul was not relied on as a basis for discipline, its refusal represented a deliberate attemt to upset Mr Kitzul, and to avoid being confronted further about an order he was reluctant to follow 18 Mr Kitzul's chagrin at Mr Roy's failure to respond to the radio call was further affected by Mr Roy's response upon seeing Mr Kitzul in the lounge at approximately 0400 hours Mr Kitzul wished to then inform the grievor that he wanted the occurrence report to be completed without any further delay and that, from his perspective, its completion was now an urgent matter I am satisfied that Mr Roy did not wish to defuse the situation, but used the pretext of his break being interrupted as a basis for dissembling I have no doubt that he was then fully aware that Mr Kitzul wanted the report "now " This conclusion is supported by the eVldence of Mr Hawkins, who reported that Mr Kitzul, on at least two occasions, told Mr Roy that he wanted the report "now " If Mr Roy wanted to defuse the situation he need only have said that the report would be completed forthwith 19 It does not matter that there may not have been any real urgency Any fault with the order could have been dealt with, , after obeying it, by filing a grievance : 111 fact is that a clear order was given to him by Mr Kltzul ln the lounge and repeated outside the Shift I C 's office Mr Kitzul was a person in authority The order in no way jeopardized Mr Roy's health or safety I am satisfied that even though Mr Roy was somewhat agitated at the time, a considerable amount of it was self-induced, and he would have been able to complete the reports in short order lf he had not engaged ln a series of confrontational manoevers 23 Mr Kitzul, as a manager, may not have handled the matter in the best way possible, but raising his voice to the grievor in the circumstances did not, in my view, provoke the grievor's unwarranted response There are occaSlons when an order may be given in a more forceful and direct manner, as when an employee appears to be unresponsive This was one of those cases 24 Having found that there was clear evidence of insubordination, I must consider whether there are mitigating factors to cause me to ameliorate the penalty 25 Although Mr Kitzul's behaviour need not be perfect in all respects, I am concerned that his conduct also played a role in exacerbating the conflict Until the incident in the lounge, there was no reason for Mr Roy to believe that Mr Kitzul had ordered him to complete the report before the end of his (Mr Roy'S) shift There was no indication that this was Mr Kitzul's 113 29 As agreed by the employer, Mr Roy is also to be paid for the three eight-hour overtime shifts that he was not permitted to work during the period of his suspension :: 30 I reject Mr Roy's claim for the other overtime shifts me claimed by him, as there was insufficient evidence to satisfy me ir that they would have become available to him 0 31 I reject Mr Roy's claim under Article 52 9, which is not applicable in the circumstances Mr Roy was neither II frequently with absent or unable to perform his duties, 11 being the two pre- requisites for the application of Article 52 9 32 All of the other grievances are denied Based on the facts presented at the hearing, none of them could succeed 33 I retain jurisdiction to deal with any difficulties the parties experience in complying with this decision rson 34 As I have mentioned earlier in this decision, the events that gave rise to the incidents that led to the filing of the grievances involve a fairly long-standing conflict in the relations between Mr Kitzul and Mr Roy In the absence of , intervention, I have little confidence that my decision will have r i very much effect on how they relate to each other in the future Unless the root causes of their poor relationship are dealt wlth /' 114 ln a sensible manner, there ought to be a concern that the ongoing relationship between them will, at best, remain difficult, and at worst will further deteriorate It would be most unfortunate lf that happens Mr Roy is a long serving officer with a generally good record Mr Kitzul appeared to me to be desirous of avoiding the friction that had affected their relationship in the past, but did not appear to know how to go about reconstituting it along more harmonious lines 35 I can only suggest that remedial steps be taken to deal with the underlying cause of the conflict between Messrs Roy and Kitzul through the good offices of the union and the employer Only If thlS is done will this matter be truly laid to rest DATED at Toronto this 23 day of October, 1996 --rY2_ ~ J{~~~ I --1 M R Gorsky, Vice-Chairperson