HomeMy WebLinkAbout1996-1146.Greene.00-10-27 Decision
o NTARlO EMPU) YES DE LA COURONNE
CROW"! EMPLOYEES DE L 'ONTARlO
.. GRIEVANCE COMMISSION DE
SETTLEMENT REGLEMENT
BOARD DES GRIEFS
180 DUNDAS STREET WEST SUITE 600 TORONTO ON M5G 128 TELEPHONE/TELEPHONE, (416) 326-1388
180 RUE DUNDAS OUEST BUREAU 600 TORONTO (ON) M5G 128 FACSIMILE/TELECOPIE. (416) 326-1396
GSB # 1146/96
OPSEU #96F731
IN THE MATTER OF AN ARBITRATION
Under
THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT
Before
THE GRIEVANCE SETTLEMENT BOARD
BETWEEN
Ontano Pubhc ServIce Employees Umon
(Greene)
Grievor
- and -
The Crown III Right of Ontano
(Mimsm of Transportanon)
Employer
BEFORE Joseph D Carner Vice Chair
FOR THE Peggy Srmth, Counsel
GRIEVOR ElIot, Srmth
Bamsters and SolIcItors
FOR THE Kelh Burke
EMPLOYER Legal ServIces Branch
Management Board SecretarIat
HEARING August 6 1999 December 14 15 16 1999 May 8 9 2000
June 28 29 2000 and August 21 2000
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AWARD
Captam Mark Greene, alleges that the twenty (20) days suspenSIOn whIch he receIved wIth
respect to an mCIdent whIch occurred on May 23 1996 was unjust and/or exceSSIve
Bnefly the Employer the Mimstry of Transport, operates a ferry servIce between the City of
Kingston on the mamland and Wolfe Island, Captam Greene IS one of several Masters who
skIppered the Wolfe Island Ferry on a rotatIOnal baSIS back and forth between Kmgston and
the Island, On May 23 1996 at approxImately 7.30 a,m" the boat left ItS moonngs at the
Marysville Dock on the Island while It was m the process of loading passengers and vehIcles,
Captam Greene was the Master m charge of the vessel at the tIme the mCIdent occurred,
Without gomg mto detail, It would be an understatement to say It was fOrtuItous that no person
or property was mJured at the tJme As mIght be Imagmed, there were numerous complamts
from local reSIdents and commuters and the matter became a cause celebre m the local media,
Followmg the mCIdent, an mvesnganon took place whIch mcluded reports from the crew of the
vessel as well as verbal reports and diSCUSSIOns from WItnesses who had personally observed
the mCIdent. The crew was compnsed of Captam Greene hImself, hIs First Mate, Bradley Eves,
the Operanng Engmeer Mr Kevm O'Shea, who mCIdentally was a umon steward, and two
Deckhands, In the result, two persons were discIphned, that IS, Captam Greene hImself and hIS
First Mate Mr Eves, As mdIcated earher the Captam receIved a twenty (20) day suspenSIOn
whIch IS the subject of thIS gnevance, The Mate's discIplme was also gneved, However that
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gnevance was resolved by the partIes WIth restnCTIons concemmg the release of mformaTIon as
to the terms of settlement.
Without reproducmg here the enTIre letter of discIphne, the Employer took the pOSITIOn that the
dIscIphne of twenty (20) days was warranted because amongst other thmgs, the Captam had
breached a number of standmg orders as well as at least one manne directIve relaTIng to the
operatIOn of the "Island Ferry" His alleged culpable conduct mcluded the follOWIng:
1 Leavmg ills command, that IS, the wheelhouse WIthout ensunng ills replacement by
the First Mate;
2 Faihng to ensure that the vessel was secured WIth moonng hnes,
3 Faihng to promptly and adequately report the mCIdent to ills supenors,
It was the Gnevor's pOSITIOn that he beheved he had taken reasonable steps to ensure ills
replacement by the First Mate at the TIme he left the wheelhouse, As to the moonng hnes, theIr
usage was more directly the responsibihty of the Mate who oversaw the Deckhands,
AddITIonally the Captam, from ills vantage pomt m the wheelhouse, was unable to confirm
VIsually that all moonng hnes were secure, In any event, the moonng hnes, If secured, would
have been madequate to prohibIt the mCIdent. As to the reportIng of the mCIdent, Captam
Greene did report the mformaTIon to ills supenors as and when he was able to confirm vanous
partIculars, Finally the Dmon takes the pOSItIOn on behalf of Captam Greene that ills errors m
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Judgment that day If so charactenzed, were largely the responsibihty of the Employer It was
Captam Greene's pOSItIOn that m the nmeframe leading up to the mCIdent he had been reqUIred
to work an mtolerable schedule, That work schedule created a sItuanon m whIch the Captam
was suffenng from the effects of "fangue" whIch Impacted on hIs Judgment. Addinonally and
more Importantly It was Captam Greene's assertIon that the stram and fangue he was under
was hnked to the diarrhea whIch he purportedly suffered on May 23rd and whIch took hIm out
of the wheelhouse mto the washroom at the cnncal nme In the CIrcumstances, no discIphne was
warranted,
THE INCIDENT AND THE BACKGROUND
I do not propose to outlme the eVIdence receIved from each and every Witness m thIs case,
rather, I will Idennfy the facts as I have found them while on occaSIOn ranonallZlng mconsIstent
or dIsputed facts by reference to testImony from the vanous WItnesses, Before domg so, I feel
obhged to comment upon an ObjectIOn raIsed several nmes by Dmon counsel respectmg the
competence of the First Mate, Mr Bradley Eves, to tesnfy on behalf of the Employer
Addinonally counsel took Issue With the rehabihty of Mr Eves tesnmony m as much as hIs
gnevance had been resolved amIcably by the partIes pnor to these proceedmgs,
There was no authonty or precedent cIted for the Dmon's posInon that Mr Eves tesnmony
should not have been receIved, and, m my ruhng at the heanng to allow Mr Eves tesnmonY' I,
m turn, made no reference to any authonty However It was my VIew that there was no
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precedent or reasonable baSIS to disallow the tesnmony of Mr Eves, There was no pnvllege
attachmg to hIm or the eVIdence he mIght gIve SImply because he had resolved hIS gnevance,
That the actIons for whIch he was discIphned arose from the same CIrcumstances gIvmg nse to
the Gnevor's dIscIphne did not disqualIfy hIm as a Witness, While It mIght have been argued that
hIs tesnmony mIght have been less rehable smce hIs mterest mIght have been m COnflIct With that
of the Gnevor, that was not an Impediment to hIs tesnmony but SImply SIgnaled that care should
be taken m relymg upon that tesnmony On the other hand, there was no allegan on that Mr
Eves had been mduced to resolve hIs gnevance m exchange for favourable tesnmony m tlns
case, Accordingly Mr Eves had nothmg to gam m tesnfymg to events or CIrcumstances whIch
mIght not be favourable to the Gnevor Finally that Mr Eves had settled hIS gnevance was no
Impediment to hIs tesnfymg to the event and CIrcumstances leading up to hIs and the Gnevor's
discIphne Rather If there was any eVIdence whIch he could not gIve, It related to the settlement
diSCUSSIOns concemmg hIs gnevance and, mdeed, the terms and CIrcumstances concemmg the
settlement ItSelf. However there was no attempt made to mtroduce any eVIdence concemmg
those settlement dISCUSSIOns or the terms of that settlement. Therefore, It was my VIew that Mr
Eves testImony was properly receIved m eVIdence, The only Issue to be determmed, as With
any tesnmony was the rehabihty of the Witness m all of the CIrcumstances,
At or about 7.20-730 a,m, on May 23 1996 the Wolfe Island Ferry was m the process of
loading passengers on Wolfe Island to begIn ItS thIrd round tnp of the day to Kingston, the first
havmg begun at or about 5.30 a,m, that monnng, Captam Greene was m command and m the
wheelhouse when loading began, TYPIcally that IS the Captam's stan on at such nme whIle the
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Mate partIcIpates m and dIrects secunng of the vessel and the loading and unloading of
passengers wIth, of course, the assIstance of the two Deckhands, On that occaSIOn, however
the moonng hnes had not been secured by the Mate or the Deck Hands, Although the absence
of moonng hnes mIght strike the layman as absurd, It IS Important to understand that theIr use IS
not fundamental to mamtaImng the Ferry at the dock while boarding takes place Rather It IS
the constant thrust of the propellers whIch, when set properly mamtam the pOSITIOn of the ferry
pressed agamst the dock. The employment of moonng hnes as an additIOnal secunty measure
was not mandated or Implemented until some TIme m 1994 followmg a fatal mCIdent m Western
Canada where a ferry had come away from ItS dock. Furthermore, the moonng hnes alone
would not hold the ferry at dock With enough stabihty to allow boarding, Indeed, m turbulent
water It IS doubtful that the hnes would hold at all, the eVIdence suggested that under sudden
stress they would probably snap On the other hand, the propeller thrust will alone mamtam the
boat stable at dock and IS the pnmary measure that holds the ferry m place, Captam Green
testIfied that, at the TIme of the mCIdent, he was unaware that the moonng hnes had not been
secured and assumed that they had been, For hIS part, he had set the vessel's emergency
steenng system to hold the ferry m place at ItS moor After unloading had concluded and Just
pnor to the commencement of loading, according to Captam Greene, he then hollered for hIS
First Mate to replace hIm and left the wheelhouse to adjourn to the captam's washroom on the
second deck ostensibly to reheve hImself m an emergency case of diarrhea,
While he was absent a number of vehIcles had been loaded mcluding two school buses, Shortly
after the second bus was on board, the vessel pulled away from the dock, the ramp fell away
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and passengers and vehIcles about to board were left stranded dock sIde, fortunately none
were directly on the ramp or boarding at the tIme of the mCIdent. In any event, the bow of the
vessel whIch had been nosed mto the dock began to pull backwards whIle the stem swung back
and to the nght, pIvotmg to a certam extent around the bow
Mr Eves, the First Mate, had been engaged m loadmg the vessel. He testIfied that he
Immediately stopped traffic, and, when he was unable to VIsually observe anyone m the
wheelhouse, went to the crews' quarters where he attempted to contact the Captam by phone
When that was unsuccessful he ran to the wheelhouse, found It empty and took control of the
vessel. To do so he had to disengage the emergency steenng and rev the stem engmes
clockwIse m order to stop the vessel's counter-clockwise SpIll. While Mr Eves was m the
process of re-dockmg the boat, Captam Greene returned to the wheelhouse, took control and
fimshed the process, The boardmg process was then completed and the ferry headed to
Kingston,
En route to Kmgston, the Captam and hIs Engmeer Mr Kevm O'Shea were able to determme
that the dnft of the vessel from the dock had been caused by a problem With the emergency
steenng, Although they were as yet unable to Isolate the cause, the Captam reported the
emergency steenng problem to Semor Captam Bennett dunng that return voyage Later
mvestIganon, while the shIp was dockSIde, proved that the problem had resulted from a leak m
the hydrauhc system m the emergency steenng, The day before the mCIdent, Engmeer O'Shea
had been attempnng to repaIr another problem m the ShIp'S engme room, In the course of hIs
repaIrs he had adjusted the hydrauhc systems affecnng the emergency steenng, When he had
8
completed ills work and subsequently reversed the process, he madvertently faIled to
completely close one of the hydrauhc valves, Subsequently the seepage of hydrauhc flUId
through that valve allowed the stem steenng to rotate while set on emergency steenng at a rate
of approxImately three hundred and SIxty degrees m four and one-half mmutes, Accordingly
although the Captam had set the emergency steenng so as to keep the vessel dnvmg forward
towards the dock and SIdeways to ItS left agamst the dolpillns, the subsequent rotanon of the
steenng had caused the vessel to leave the dock as described earher
Tills bnngs me to a consIderanon of the more contennous eVIdence much of willch relates more
specIfically to the Company's alleganons WIth respect to the conduct or mIsconduct of Captam
Greene, With respect to those elements of the case, the followmg are my findmgs together With
what I hope prove to be relanvely bnef reasons With some elaboranon where credibihty IS an
Issue
1 Captam Greene acknowledged famihanty WIth all of the standing orders and manne
dIrecnves,
2 It IS my VIew that those standing orders and manne directIves whIch the Captam was
alleged to have breached were not unreasonable,
(a) Connnual command of the vessel from the bndge by a competent person
throughout the boarding procedure reqUIres no comment respecnng ItS
legInmacy
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(b) There were conflIctmg direcTIves WIth respect to the use of the emergency
steeTIng system as opposed to the ShIp'S aqua pIlot system, However that
COnflICt IS Irrelevant smce, on tlns occaSIOn, the Captam had chosen to use
the emergency steeTIng system whIch was the more recently mandated
procedure Therefore, while the tesTImony and eVIdence mdicated that the
aqua pilot's abihty to constantly self-correct would probably have
mImmIzed, If not ehmmated, the TIsk that the boat would propel Itself from
the dock, that dId not mean the aqua pilot system was fool proof m all
CIrcumstances or preferable to the emergency steeTIng system, Rather the
eVIdence mdicated only that, on tlns occaSIOn, m hmdsIght, the aqua pIlot
would have been a better chOIce, In any event, the discIplme Imposed upon
Captam Greene was not based m any measure upon hIs chOIce of steeTIng
systems, Rather Captam Greene and the Dmon pomt to the madequacy of
the emergency steeTIng system and ItS failure on that day as an exculpatory
or mItIgatmg factor m hIs conduct, Indeed, It IS reasonable and I find that
the failure of the emergency steeTIng system was a sIgmficant, If not, the
sIgmficant factor whIch precIpItated the movement of the boat from the
dock on the day m queSTIon, AdditIOnally that IS one of the vaTIOUS factors
whIch meTIts conSIderaTIon m assessmg the ImpOSITIOn of discIphne on the
Captam With respect to the mCIdent.
(c) The eVIdence estabhshed that the mooTIng hnes seCUTIng the boat at the
dock were absent at the TIme of the mCIdent. The Captam dId not deny that
he was famihar With the reqUIrement that the mOOTIng hnes be fixed while the
boat was at the dock. The challenge to the dIrectIve whIch reqUIred the
mOOTIng hnes was based on two factors
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1. That the Captam or Masters were unable to enforce the
reqUIrement smce they had no discIplmary powers over
the crew
11, m any event, the Implementation of the use of moonng
hnes was sImply a pubhc relations ploy smce the hnes
were mcapable of holding the boat at the dock but
would snap when placed under any sIgmficant degree of
stress
I do not accept the Umon's contentIOn that the Captam's mabihty to discIphne the crew
absolved lnm from responsibihty for the failure to attach the moonng hnes, Rather the
Captam had a consIderable degree of perceIved and moral authonty over hIS crew m
lns pOSItIOn as Master Furthermore, If lns admomtIOns to the crew to assure that the
moonng hnes were affixed were not followed, he could have appealed to lns supervIsor
that IS, the semor ferry captam to enforce the rule With the crew However there was
no eVIdence whatsoever that the Captam attempted to ensure that the moonng hnes
were regularly secured espeCIally at the Wolfe Island docks, Rather It appeared that
the practice was regularly followed at the Kmgston dock where the semor ferry captam
could observe the procedure, however when on the Island both the crew and the
Captam were cavaher WIth respect to the dIrectives, Although there was eVIdence that
a Captam's general mabihty to discIplme had been raised as a concern at Captams'
meetmgs WIth respect to the enforcement of standmg orders or manne directIves such as
the affixmg of moonng hnes, there was no eVIdence that the Captams had been reheved
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of responsibihty m consequence of those meeTIngs, Rather It was my VIew of the
eVIdence that the Captam, as Master was responsible for the overall operatIOn of the
vessel and performance of the crew m a manner conSIstent With manne reqUIrements,
Where, as here, the eVIdence mdicated that he has not m any way attempted to enforce
or reqUIre comphance wIth Standmg Orders, he bears a consIderable degree of
responsibihty for the consequences where the Orders have not been followed, Further
It IS not suffiCIent for the Captam to say that from lns perch m the wheelhouse he was
unable to observe whether or not the hnes were affixed at the tIme He could have
bTIefly moved to a pOSItIOn where the hnes, fore and aft could have been observed,
Furthermore, the eVIdence mdicated that the hnes were often not secured at the Island,
The Captam, as Master ought to have been aware of thIS regular omISSIon,
Accordmgly the Captam's teSTImony that he assumed they had been affixed on thIs
occaSIOn was not only doubtful but unacceptable, Finally subsequent events relaTIng to
reportmg of the mCIdent by the crew confirmed that the Captam had saTIsfied lnmself
promptly thereafter that the hnes had not been affixed when the boat broke away from
the dock. Accordingly the Captam must bear some responsibihty WIth respect to the
failure to attach the mOOTIng hnes that day
In reaclnng thIs conclUSIOn With respect to the mOOTIng hnes, It was necessary to
determme that the eVIdence of the First Mate, Bradley Eves, was preferable to that of
the Captam. Indeed, as mdicated earher Mr Eves had no reason to mIsrepresent the
mCIdents of the day and certamly had no reason to testIfy that the Captam had mstructed
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or requested lnm to report the moonng hnes were secure when they were not. If
anytlnng, It was my percepTIon that the Witness, Mr Eves, did not deliberately attempt
to mIsrepresent events agamst the Captam's mterest. Rather he appeared to mmImIze
m some areas the degree of the Captam's omISSIOns, For mstance, It was my VIew that
he underestImated the tIme whIch elapsed between the departure of the boat from the
dock and lns regammg control of It and ultImately the Captam's return to the bndge He
was reluctant, m my VIew to proVIde a more reahsTIc or greater eSTImate of the TIme the
Captam was off the bndge smce that would have further Impugned the Captam's
aCTIons
With respect to the reasonableness of the reqUIrement that the moonng hnes be affixed,
I am not saTIsfied that the moonng hnes would not have assIsted m holdmg the slnp at the
dock that day notwIthstanding the shppage m the emergency steenng system, The
eVIdence mdicated that the boat would or could snap one or more hnes when It was
powered away from the dock at conSIderable RPM's, It was not, however clear that
where the apphcatIOn of stress on the hnes was gradual as was the case dunng the
mCIdent that the hnes would have necessarily snapped before any problem had become
apparent. Rather m thIS case, the eVIdence mdicated that the shppage m the steenng
was very gradual such that there would have been no sudden powenng away from the
dock. Had the Captam been on the bndge and the hnes affixed, he mIght well have
observed the stram on the hnes when It first occurred and moved to take correCTIve
measures, His absence from the bndge and the failure to use moonng hnes ehmmated
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any such possibIhnes, Agam, the Captam cannot escape responsibihty by suggesnng
that the moonng hnes mIght not have held where It was equally possible that they lll1ght
have held long enough to have avoIded the greater nsk whIch ulnmately occurred,
1 In additIOn to the foregomg, It was clear that the Captam left the deck Without ensunng
hIs replacement was m attendance let alone confirmmg that the Mate was aware that he
was leavmg the wheelhouse In a best case scenano, the Captam mIght have beheved
that hIS yell to the Mate had been receIved and understood, However the Mate was
not present m the wheelhouse when the Captam actually left; rather he was absorbed m
the loadmg and unloading of the boat. Accordingly he could not have Immediately
replaced the Captam on the deck. Furthermore, the Captam's tesnmony was unclear as
to what precIsely he had yelled to the Mate and what he had expected the Mate to do
m the CIrcumstances, In bnef, there were several methods of commumcanon open to
the Captam to assure hIs replacement m the event of an emergency The Captam did
not avail hImself of any reasonable method of commumcanng With the Mate and assunng
hIs replacement before he left the bndge Agam, the Captam was remISS m not assunng
hImself that the Mate had been properly appnsed of the sItuanon and mstructed
accordmgly pnor to the Captam's departure from the wheelhouse,
ThIs conclUSIOn bnngs mto focus one of the pnmary factors rehed upon by the Dmon and the
Gnevor m hIs explananon, SpecIfically It was the Gnevor's contennon that the work schedule
whIch he had been subjected to m the Immediately preceding weeks had resulted m extreme
fatIgue and a consequent stomach ailment whIch preCIpItated hIs personal emergency that day
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A number of weeks pnor to the mCIdent, the schedule for crew members of the ferry had been
changed to provIde for ten (10) hour slnfts, Smce the ferry Itself began Its daily schedule on
Wolfe Island at about 5 30 a,m, and fimshed there as well at about 1.30 a,m, the next monnng,
crew members had to Juggle theIr lIves to be available on the Island to begm theIr respecnve
slnfts, When scheduled to work the day ShIft, mamland resIdents such as Captam Greene had
to be available on the Island at approxImately 5'00 a,m, m the mommg, To accomplIsh tlns, at
the latest they would be oblIged to take the last ferry to the Island the prevIOUS evenmg, that IS,
at about 1 '00 a,m, They would then WaIt on the Island until theIr shIft began some four hours
later Accordingly although there were techmcally fourteen hours between the end of one ShIft
and the begmnmg of the next, a chunk of that nme was taken up m tranSIt and on standby
pending acnve duty Tlns left relanvely few hours m the day for the purSUIt of personal mterests
let alone for rest or sleep Captam Greene preCIpItated a gnevance WIth respect to the schedule
on or about May 16 1996 That gnevance per se has lIttle relevance to the matter at hand
except msofar as It demonstrated Captam Greene's concern about the ten hour schedule In
any event, that gnevance was subsequently resolved by the partIes while Captam Greene's
personal concerns were more dramatIcally set out m a letter he wrote on or about May 23rd
1996 That letter was m response to a cnncalletter he had receIved from Semor Ferry Captam
Bennett for havmg failed to call and/or show up for hIS slnft on Fnday May 1 ih Although not
ennrely relevant to the matter before me, there are elements m It wlnch warrant reVIew The
followmg consntutes the text of that letter
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Regarding vour letter of Aim 21 1996 failure to report to work on Fridm Aim 17
1996 0530-1530 hI's shift,
4s vou are well aware if I do not report to work on the last fern departing Kingston at
0100 hI's (45 hI's prior to nn 10 hI' shift) on hoard the Wolfe Islander III I have no
availahle means of transportation to get to Wolfe Island for the start of nn 10 hI' shift at
0530 hI's,
Due to this new 10 hI' shift schedule as of 4pril 22 1996 and nn unfortunate extended
hours of work this schedule entails I at times have hecome phvsicalh exhausted.
Falling asleep hours prior to nn shift on Aim 17 1996 and due to heing exhausted I
must have shut the alarm clock off and fallen hack to sleep
The financial hardship due to the recent o.p 'l,E. [ strike has resulted in nn phone
services heing disconnected. 4s vou are aware all attempts ji'01n the shift captain to
contact me were unsuccessfitl when he realized I wasn t on hoard the last fern at 0100
hI's to go to workfor 0530 hI's
However when I woke I did advise the Wolfe Islander II that I had slept in, was
exhausted, and would not he reporting for nn shift, alheit late
4s vourself Air Roger Harrison, Air Don Barnes (and others involved) are aware that
all previous conversations and meeting concerning this 10 hI' shift schedule focused on
the fact that emplovees residing in Kingston are required to work or he in their
workplace 15 hI's or 16hrs, a dm resulting in minimal hours off each dm jimn their
workplace prior to their next scheduled 15 or 16 hI' shift,
'lince 4pril22 1996 each shift that I have worked was a 15 hI' or 16 hI' dm For this
Aiinistn to require mvself and nn co-workers residing in Kingston to work these hours
each shift is unethical, horders phvsicalh impossihle involves undue hardship is
clearh unhealtln and produce fatigue arising jimn minimal hours off each dm jimn
their workplace prior to the next scheduled shift,
I refitse to take the approach that there is not a prohlem with a 10 hI' shift, If all
emplovees could work a 10 hI' shift or a 12 hI' shift and he out of their workplace it
would he safe
What is happening has the potential to he dangerous unsafe for it s emplovees the
traveling puhlic and surrounding waterwavs
I wish to thank vou for vour concern regarding this matter and as C' aptain I can assure
vou that in the fitture if I hecome fatigued I will exercise nn good judgment and notifi
the Wolfe Islander III well in advance
Thank vou,
Among the quesTIons raIsed by that letter IS whether or not Captam Greene was suffenng from
"fatIgue" as a result of the recently altered work schedule DId the letter conSTItute nOTIce that
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the Captam was medically "fatIgued" and, If so dId that "faTIgue" preCIpItate a stomach disorder
and dIarrhea on May 29') Further dId that "faTIgue" so cloud the Captam's Judgement that day
that he could not be held responsible for ills errors, I sympatillze WIth the Captam's contenTIon
that hIS work schedule m and around May of 1996 constItuted a hardsillp and I understand that
he was more than unhappy WIth It. However there are both factual and legal ImpedIments to
acceptmg those reasons as a baSIS for absolvmg hIm of responsibIhty With respect to the
mCIdent. Factually aSIde from Captam Greene's letter and ills own tesTImony that he vIewed
the schedule as oppreSSIve, there was no corroboratIve eVIdence that he was sleep depnved or
that the schedule would necessarily have resulted m sleep depnvaTIon, Furthermore, there was
no medical eVIdence that the Captam was suffenng from such a degree of faTIgue that ills
Judgment m commanding the boat would have been ImpaIred, Indeed, while we do not doubt
that such a conneCTIon mIght well develop, there was no eVIdence mtroduced at the heanng to
estabhsh the stage at willch, If any Judgment mIght be ImpaIred as a result of faTIgue and to what
extent. Absent such eVIdence as well as a dIrect causal conneCTIon between the work schedule
and the Captam's conduct, the excuse of fatIgue mduced by the work schedule Imposed on
Captam Greene has not be substantIated, To rely upon a WItness' self-diagnOSIs to support the
eXIstence of an undefined medical condiTIon WIthout appropnate medical opIllion would set an ill
adVIsed and mappropnate precedent. SImilarily the absence of medical eVIdence to support the
propOSITIOn or conclUSIOn that "fatIgue" causes or would likely have caused the CaptaIn's
alleged bout of diarrhea IS fatal to that contenTIon, To put It SImply the Captam cannot, as he
has attempted to do, pomt to the hardshIps mduced by hIS work schedule as causatIve both of
ills errors m Judgment and ills diarrhea on the day of the mCIdent. His self diagnOSIS and
17
raTIonahzaTIon have not been substanTIated by the eVIdence mtroduced, [See for mstance Re
RegIOnal MumcIpahty of Hamilton-Wentworth and Canadian Dmon of Pubhc Employees, Local
167 (1996) 52 L.AC (4th) 141 (Sargeant) and Re Pasteur Meneux Connaught Canada and
C,E.P Loc 1701 (1998) 75 L.AC (4th) 235 (Knopf)]
In addiTIon to the difficulty m drawmg a causal connectIon between the Gnevor's work schedule
and the mCIdent, as alluded to earher there was also some doubt concemmg the eXIstence of the
Gnevor's dIarrhea If not ills faTIgue To put It bluntly the Gnevor's assertIon that he was
suffenng from diarrhea on the monnng of the mCIdent was not substanTIated by any other
eVIdence On the contrary not only was there no medical eVIdence whatsoever to substantIate
a stomach disorder the Captam's conduct before and after hIS VISIt to the washroom on the day
of the mCIdent suggests that he was suffenng from no such ailment. There was no mdicaTIon m
the tesTImony of Bradley Eves or the Captam illmself for that matter that he had dIsplayed any
symptoms of discomfort from the begmmng of ills sillft on the day of the mCIdent up to and
mcluding the dockmg of the boat on the Island Immediately preceding the mCIdent Itself
Furthermore, the Captam completed the balance of ills sillft that day Without any complamts
regarding hIS health, While he did, later m the sillft, request that Semor Captam Bennett find illm
a replacement, ills purpose was to leave early not because of hIS own health but to attend to a
personal matter relaTIng to ills daughter In the CIrcumstances, I find the Captam's self-servmg
tesTImony concennng a stomach disorder on the monnng of the mCIdent unrehable
18
In a sImilar vem, although the Mate, Bradley Eves, was pnmarily responsible for the failure to
secure the moonng hnes, I am sansfied that the Captam was aware that they had not been
affixed that day at the Wolfe Island Dock. Whether he knew tms was so as a matter of practIce
wmch he had rounnely condoned or whether he realIzed Immediately followmg the mCIdent that
they were not secured, I am satIsfied that he was aware that they were mIssmg that day and
attempted, at least Imnally to conceal that fact from ms supenors, As preVIously I must prefer
the testImony of Bradley Eves to that of the Captam when he asserted that the Captam had
suggested that he and other members of the crew complete theIr reports mdicanng that the
moonng hnes had been secured, That tesnmony IS consIstent WIth a request made by the
Captam followmg the mCIdent for fresh rope ostensibly to replace those moonng hnes whIch had
been snapped on Wolfe Island, It IS my VIew that the Captam was deeply concerned not only
about the potentIal hazard to the pubhc whIch the mCIdent represented and concernmg wmch he
tesnfied but also With respect to the possible ramIficatIOns for mmself and hIS Job There were a
consIderable number of elements wmch mdicate that the Captam had ongmally thought he mIght
mImmIze or at least margmalIze ms responsibihty for the mCIdent. In addinon to that already
referred to, I am sansfied that when Captam Greene first contacted Semor Captam Bennett by
telephone follOWing the mCIdent, he complamed about the failure of the emergency steenng
system but made no mennon of the far more Important fact that the ferry had actually left the
dock m the mIddle of the boardmg process, That could not be consIdered a sImple oversIght
but a deliberate attempt to, at least, temporanly conceal the event and to mIsdIrect attennon to
the mechanIcal failure before the eXIstence of the mCIdent Itself became apparent to ms
supenors, Indeed, It must have been qUIte a shock to Captam Bennett to learn of the mCIdent
19
from ills supenor rather than from Captam Greene WIth whom he had spoken some short TIme
earlIer While It IS clear that Captam Greene could not have mtended to conceal the matter
completely I am of the VIew that he hoped to gam some advantage by delaymg the mformatIOn
and focusmg attenTIon on failures other than ills own,
In all of the CIrcumstances, It IS my finding that the Captam's conduct was culpable WIth respect
to the vanous elements IdentIfied by the Employer Unfortunately the Gnevor chose to focus
on the failures of the Employer rather than ills own m dealmg WIth the mCIdent. While there IS no
doubt that the schedule Imposed upon crew members resIdent on the mamland constItuted a
hardsillp I was not satIsfied that Captam Greene was so faTIgued that he could not have
exercIsed some measure of reasonable Judgment when dealmg WIth ills personal SItuatIOn that
mornmg, Indeed, he could have anTIcIpated ills personal needs and adVIsed the Mate before
boarding began, AlternaTIvely he could have employed any number of alternaTIve measures of
contacTIng the Mate and ensunng that safety measures were m place before departmg the
bndge He chose none of those alternatIves, Even on a best case scenano, the Captam
abandoned the bndge WIthout assunng hImself that the Mate was aware of ills emergency and
WIthout saTIsfymg illmself that the moonng lInes had been properly secured, Rather he
abandoned ills post WIthout complymg WIth any of the appropnate safety measures, While
faTIgue and a stomach disorder mIght consTItute an explanaTIon for an emergency departure,
neIther of those constItuted a reasonable excuse for hIS omISSIOns that day and the nsks to whIch
he put ills customers, ills crew and ills sillp Accordingly It IS my VIew that the Captam's
20
conduct ments sIgmficant discIphne Tills bnngs me to a consIderanon of the appropnateness of
the penalty Imposed upon Captam Greene
GIven the stature of a ferry captam and the degree of responsibIhty they bear a twenty (20) day
suspenSIOn cannot be consIdered mmor discIphne Furthermore, while the absence of
discIphnary measures agamst the crew aSIde from the Mate, as well as the Engmeer Mr
0' Shea, mIght mVIte some degree of mIngatIOn, the Captam must nonetheless bear the brunt of
the responsibihty The Mate was pnmanly responsible for the deckhands failure to secure the
hnes; he receIved appropnate pumshment. The Engmeer's error was madvertent; furthermore,
he acknowledged ills responsibihty when It became apparent as to what had transpIred wIth
respect to the emergency steenng system, On the other hand, the Captam not only attempted to
Imnally conceal some of the elements mvolved m the mCIdent but also failed to recognIze that he
bore conSIderable responsibihty for what had transpIred, He chose mstead to seek to affix the
blame upon the Employer whIch had Imposed upon hIm what he conSIdered an mtolerable work
schedule, While he mIght have been Jusnfied m ills VIews WIth respect to the schedule, as I have
already determmed, the reperCUSSIOns of that schedule were not such as to absolve the Gnevor
from responsibihty On the contrary he must bear the hon's share of responsibihty for puttIng at
nsk ills crew the ferry and ItS customers, In all of the CIrcumstances, the penalty Imposed upon
the Gnevor IS WIthIn the realm of reasonable responses to ills conduct and ills responsibihty m
the scenano Had Captam Greene been frank WIth the Employer about hIS omISSIons and
accepted a reasonable degree of responsibihty for what had transpIred, the penalty Imposed
mIght have been reasonably adjusted If not by the Employer by thIS ArbItrator However the
21
Gnevor here was so caught up III ills VIews that the Employer had been unfaIr to illm that he
failed to recogmze ills own faihngs, In all the cIrcumstances, I am not persuaded that the penalty
should be altered,
The gnevance IS therefore dismIssed,
Dated at Toronto, thIS 2ih day of October 2000
Joseph D Carner Vice-ChaIr