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HomeMy WebLinkAbout1998-0739.Friday.99-03-17 Decision ONTARIO EMPLOYES DE LA COURONNE CROWN EMPLOYEES DE L'ONTARKJ 1111 GRIEVANCE COMMISSION DE , SETTLEMENT REGLEMENT BOARD DES GRIEFS 180 DUNDAS STREET WEST SUITE 600, TORONTO ON M5G 1Z8 TELEPHONE/TELEPHONE (41(j) 32(j-1388 180, RUE DUNDAS OUEST BUREAU 600, TORONTO (ON) M5G 1Z8 FACSIMILE/TELECOPIE (41(j) 32(j-13g(j GSB # 0739/98 G7998C IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN Amalgamated TransIt Umon Local 1587 (Sam Fnday) Grievor - and - The Crown m RIght of Ontano (Toronto Area TransIt Operatmg Authonty/Go TransIt) Employer BEFORE Damel A. HarrIs V Ice-ChaIr FOR THE Brendan J Morgan UNION Counsel, Golden, Green & Chercover BarrIsters & SolIcItors FOR THE Jeffrey E Canto-Thaler EMPLOYER Counsel, Irvmg & Canto-Thaler Barnsters & SolIcItors HEARING Februarv 26 1999 March 10,1999 AWARD In thIs matter the Dillon, The Amalgamated TransIt Dillon, Local 1587, gneves that the Employer GO TransIt (The Toronto Area TransIt Operatmg Authonty) termmated the Employment of the Gnevor, Sam Fnday wIthout Just cause The Gnevor work.ed as a couner for GO TransIt HIS Job was to delIver tIckets schedules, pamphlets and other matenals to the bus and tram statIOns operated by GO TransIt. To do so he drove a whIte automobIle clearly marked wIth the Authonty's large green "GO" logo The facts leadmg to hIS dIscharge are not senously m dIspute On Monday Julv 27 1998 the Gnevor drove around the lowered rall crossmg barrIers at the level crossmg near the Brampton Rallway StatIOn. The letter of dIscharge dated July 29 1998 sets out GO's reasons as follows Dear Mr Fnday Subject: Letter of Termination On Monday 27 July 19q8 at approxImately 8.30 a.m. yOU were dnvmg a GO TransIt support vehIcle DO 1402 as part of your scheduled dutIes to pick and delIver maIl at the Brampton GO StatlOD. Dunng your operatIOn of the vehicle, you drove around the lowered rail crossmg barners at the railway tracks at MIll Street. Subsequent to my .rneetmg with you on the mormng of 27 July 1998 regardmg thiS mCldent, I have reviewed the offiCial report of the inCident provided by Canadian NatIOnal RaIlways and have considered your explanatIon of your actIOns and fmd that there was no acceptable reason for you to proceed through the barrlers. ThiS IS a senous breech [sic] of the Ontario Highway Traffic Act and IS of partIcular concern to GO TranSit 2 smce Its prImary busmess IS the transportation of passengers on hIghways and railways. In choosmg to circumvent the lowered barners, you displayed extremely poor judgement and a total lack of common sense You placed yourself at rIsk of mJury or death and caused GO Transit consIderable embarrassment m view of GO Transit's program to educate the publIc not to do exactly what you have done By reason of your recklessness m thiS mstance and also of your eXlstmg record of dIsciplIne, we must adVise you that your employment with GO TransIt IS hereby termmated. The termmatlon IS effectIve Immediately Any mOnIes owed to you wIll be released upon the return of any GO TransIt property m your possession. Smcerely, TOlvo Madras TOlVO Madrus, the Gnevor's supervIsor, testIfied at the heanng that he was adVIsed of the mCIdent by CanadIan NatIOnal RaIlways whIch operates the tracks m questIOn Seemmgly the Gnevor had been seen by the crew of a passenger tram whIch was slowly pullmg out of the station at the tIme Mr Madrus then called the Gnevor on hIS cellular phone ImtIally, he asked the Gnevor "how thmgs were gomg," WIthout mentIOnmg the allegatIOn about evadmg the crossmg barner The Gnevor told hIm that all was well Mr Madras then asked hIm dIrectly If he had gone around the crossmg barner The Gnevor promptly admItted that he had. When ask.ed why he dId so the Gnevor replIed he had thought that the barrIers were faulty and other cars were also gomg around. After heanng the Gnevor's account of the mCldent, Mr Madrus told the gnevor to come m to see hIm after he was fimshed hIS shIft. Mr Madrus hung up the phone Mr Madrus reflected on the matter further, and conSIdered two other dlsClplmary matters mvolvmg 3 the gnevor He concluded that some sort of senous dIscIplme was warranted. He then thought that dIscharge was appropnate He telephoned the gnevor and told hIm to come m nght away Mr Madrus then adVIsed Jean Norman, hIS own supervIsor of hIS decIsIOn to termmate the Gnevor's employment. She concurred wIth hIS decIsIOn When the gnevor reported m they essentIallv reIterated theIr telephone conversatIOn regardmg the mCIdent. Mr Madrus suspended the gnevor pendmg mvestIgatIOn even though he had concluded that the gnevor was to be dIscharged from hIS employment. The Gnevor was gIven the followmg letter of suspenSIOn Dear Mr Fnday Subiect: Letter of Suspension It was reported by GO TransIt's Enforcement Office that on 27 July 1998 Just pnor to 9 a.m GO TransIt support vehIcle no 1402 was seen crossmg the tracks at the level crossmg at Brampton StatIOn when the warnmg SIgnals were actIvated. You were operatmg the subject vehicle at the tIme Your actIOns VIOlated Health and Safety laws of the Province ofOntano and caused embarrassment to GO TranSIt. ThIS conduct was dangerous and unsafe to the extreme You are, as a result of your unsafe actIOns hereby suspended from duty WIthout pay until further notIce pendmg the outcome of an investIgatIOn of thiS mCIdent. This suspensIOn IS effectIve upon the dehverv of thIS letter to you. Sincerely Mr Madrus testIfied that the only remammg mvestIgatIOn was to receIve and reVIew the report of the mCIdent bemg prepared by CN Pollce In cross-exammatIOn, Mr Madrus confirmed that m fact he dId not Walt for the CN Pollce report. The letter of dIscharge IS dated July 29 1998 HIs notes dated July 30, 1998 at 8 49 am mdIcated that he stIll dId 4 not have the report but would Issue the dIscharge anyway smce he had the gnevor's admIssIOn. The prevIOus mCldents referred to by Mr Madrus as mfluencmg his decIsIOn to fire the gnevor were both wntten warnmgs The first, dated November 27, 1997 was Issued because the gnevor had refused a supervIsor's request to pIck up and delIver a plastIc bag to another GO locatIOn The gnevor was Said to have told Mr Madrus at the tune that he dId not pIck It up because It looked lIke a garbage bag and It made hIm look lIke a garbage man. The second, dated June 8 1998 was also a wntten warnmg It was Issued as a result of the Gnevor havmg made an unauthonzed long dIstance telephone call to hIS mother m Guyana from the work statIOn of another employee The Gnevor also testIfied. HIS account of the mCldent IS uncontradIcted He Said he approached the level crossmg along Railroad Street, WhICh runs parallel to the tracks The level crossmg IS nght at the mtersectIOn of Railroad St. and Mill Street. As the Gnevor approached the crossmg he could see that the barrIers were down and cars were gomg around the barrIers m both dIrectIOns When he reached the barrIer there was one car m front of hun and two cars lmed up to cross from the OppOSIte SIde of the tracks He was stopped at the crossmg for one to two mmutes The car ahead of hIm went around the barrIer and through the level crossmg He looked up and down the tracks, he could see approxImately 200 yards m each dIrectIOn. He saw no tram, concluded the barrIer was 5 malfunctIOmng and proceeded around the barner and across the tracks WhIle crossmg the tracks he kept a lookout for trams In chlefhe testIfied he could see 200 to 300 yards up and down the tracks as he crossed. As he carned on across the tracks he saw a lIght whIch he took to be an approachmg locomotIve It IS agreed that It was a slowly movmg passenger tram pullmg out of the Brampton RaIlway StatIOn. He went to the statIon to make hIS delIvery, WhICh took two to three mmutes As he left the statIOn he saw a freIght tram pullmg toward the level crossmg at a very slow pace The Submissions of the Parties The Employer submItted that It sells transportatIOn, the purchase pnce of WhICh mcludes an underlymg assurance that It WIll enforce ItS safety rules Further, the very object of crossmg barrIers IS to ensure the blockmg of traffic The object of the barrIer was saId to be a guarantee to GO passengers, tram crews, and the publIc at large that It WIll stay m place untIl It IS safe to cross There was saId to be no dIscretIOn m a dnver to Ignore the barrIers That IS barrIers were saId to constItute a guarantee that no traffic WIll cross the track, and It IS part of GO TranSIt's responsIbIlIty to ItS own employees and the publIc at large to enforce vIgorously that guarantee It was submItted that to remstate the gnevor would amount to compellmg tram operators to forfeIt the guarantee made to them that no traffic wIll cross the track and thIS Board ought not to do so The Employer also submItted that the Dmon has commItted to partnershIp wIth the Employer m provldmg a 6 safe workplace The Employer stressed that the Gnevor had not shown that he was remorseful or understood the senousness of evadmg a barner m a GO TransIt vehIcle, and the ImpresslOn that such an actlOn would leave wIth the publIc The Employer submItted that the very product sold by GO Transit to the public had been sabotaged by the Gnevor The Employer relIed on the followmg authontIes Green and Treasury Board (Transport Canada), (umeported, PSSRB (SImpson), June 14 1996) Canada Steamship Lznes Inc and S I U (Mzkedzs) (umeported, H Frumkm. August 5 1997) Cztv olCalgary and ATU, Local 583 (Sullzvan) (umeported, A.C.L Sims September 12 1997) Maple Lodge Farms Ltd. and U F C W, Loc 175 (1992) 28 L.A.C (4th) 358 (Walsglass), ITT Automotive Inc and CAW, Loc 199 (1995),51 L.A.C (4th) 308 (Rose) T T C and ATU, Loc 113 (1985), 22 L.A C (3d) 271 (Black), Bntzsh Columbza Ferry Corp and B C Ferry and Manne Workers' Unzon (1993) 37 L.A.C (4th) 332 (Korbm) The Dillon submitted that although the Gnevor ought to have been dlsclplmed for hIS actlOns, the penalty of dIscharge was exceSSIve m the Circumstances It Said that the Board has the JunsdlctIOn to mItigate the penalty and ought to do so The Dillon said that although the Gnevor's actIOns were Impulsive and foolIsh, they were not so egregIOus as would JUStifY the abrogatlOn of the pnnclple of progressive dlsclplme Further the Gnevor's prompt acknowledgement of responsibilIty and understandmg of the senousness 7 of hIS actIOns ought to stand In hIS favour In the Dillon's VIew the Employer Improperly gave no weIght to those factors, and the Board ought to rectIfy that omISSIOn by mItIgatIng the penalty The Dillon relIed on the follOWIng authontIes Canadzan Labour Arbztratzon, paragraphs 7 3520 3442,4420 (Canada Law Book, Brown and Beatty), Camco Inc and U E Loc 550 (1991), 22 L.A C (4th) 124 (Barton) Brampton Hvdro-Electrzc Commzsszon and C.A W -Canada, Loc 1285 (1997), 64 L.A C 4th 305 (Kennedy), Burns Meats and U F C W, Local 832 (1993), 38 L.A C (4th) 172 (HamIlton) Noranda Mznerals Inc and Canadian Union of Base Metal Workers (1995) 49 L.A C (4th) 46 (Brunner) Canadzan Forest Products Ltd. And I W A -Canada, Loc 1-424 (unreported, C McKee March 2, 1988), Canadzan Forest Products Ltd. And I WA.-Canada, Loc 1- 424 (1993) 36 L.A.C (4th) 400 (Kelleher), Rcy Plastics Lzmzted and International Leather Goods, Plastzc and Novelty Workers Union, Lac 8 (unreported, F.D Bnggs June 30 1993) CztvofBramptonandATU Lac 1573(1978) 19L.A.C (2d) 237 (Shlme) Reasons for Decision Although the Gnevor's actIOns m evadIng the crossmg barrIer were dangerous and foolhardy, they lacked the wanton recklessness eVIdent In the cases relIed upon by the Employer In Green, (supra), the Gnevor left hIS pOSItIOn as an aIr traffic controller vacant whIle he took a 35 mmute break, "[w]lth aIrplanes flymg all over the place" In Canada Steams/up Lines, (supra), ArbItrator Frumkm found, at page 18, that the gnevor 8 "exhIbIted a wanton dIsregard for hIS dutIes and responsibIlItIes " There the gnevor broke the padlock and reset electnc CIrcUIts that had been locked-out by a co-worker, wIthout warnmg the co-worker and m clear contraventIOn of well establIshed safety rules In Maple Lodge Farms, (supra), the gnevor washed and wIped hIS hands on a paper towel He then threw the towel mto a meat hopper and dId not remove It ArbItrator Warsglass found hIm to be neglIgent, careless and IrresponsIble He also had a progressIve dIscIplmary record of four wntten warnmgs three one day suspensIOns and a three day suspensIOn for msubordmatIOn. In ITT Automotzve (supra) the gnevor's actIOns, m mtentIOnally damagmg a grmdmg wheel, was found by ArbItrator Rose to be a delIberate and unsafe act that endangered hIm and others In B C Ferry Corp, (supra), the gnevance of Mr Mutton was dIsmIssed because hIS actIOns extended beyond mere carelessness ArbItrator Korbm found that he had exhIbIted blatant dIsregard of safety procedures Most notably wIth respect to the other gnevor Mr Anderson, ArbItrator Korbm rejected the contentIOn that hIS behavIOur had been so neglIgent as to be conSIdered WIlful Rather, as set out at page 345 It was "more akm to momentary carelessness He made an error m Judgement that he WIll have to lIve wIth for the rest of hIS lIfe" In that case, three lIves were lost. In Czty of Calgary (supra) as m the cases referred to above, the Board was of the VIew that the gnevor contmued to shIrk responsIbIlIty for hIS actIOns and no other mItIgatmg factors supported remstatement. 9 ThIs Board accepts the Uillon's submIssIOn that the purpose of dIscIplme m an mdustnal relatIOns context IS to correct culpable behavIOur That correctIve approach IS achIeved by progressIvely dlsclplmmg employees WIth escalatmg consequences when mIsconduct contmues to occur However when an mCldent of mIsconduct IS suffiCIently senous It IS appropnate to respond munedlately WIth senous dlsclplme DIscharge as a first response IS appropnate m those mstances whIch mvolve an mtentIOnal actIOn of senous proportIOns m the nature of malfeasance In the mstant matter the Employer submItted that the Gnevor fully mtended to evade the barrIer and cross the tracks There IS no doubt that he mtended to complete those actIOns However, the eVIdence IS uncontradIcted, and credIble that he belIeved on the baSIS of hIS observatIOns that It was safe to do so because the barrIer was malfuntIOnmg That IS, he dId not recklessly cross the tracks, nor do so WIth wanton dIsregard for hIS safety or the safety of others Indeed, he proceeded after determmmg that no tram was commg, and he kept a lookout as he went. HIS actIOns were an error m Judgement, but hIS mtentIOns were not m the nature of the callous mdIfference exhibIted m the authontIes relIed upon by the Employer ThIS IS a case that reqUIres conSIderatIOn of whether there are factors that mItIgate the penalty of dIscharge As noted above, the Gnevor has two wntten warnmgs for matters that are unrelated to safety Issues The Employer submItted that the wntten warnmg 10 regardmg the unauthonzed telephone call, m partIcular also mdIcated a lack of judgement. Arguably any mCIdent that attracts dIscIplme IS the result of the exerCIse of poor judgement. PreVIOUS wntten wammgs so charactenzed do not JUStIfy a devIatIOn from the pnncIples of progressIve dIscIplme In the normal course, a further mCIdent of 'poor Judgement' would result m a further wntten wammg or short suspenSIOn In thIS matter, the Employer went dIrectly to the dIscharge of the Gnevor The dIscharge could only be upheld If the mCIdent Itself ments dIscharge As set out above, the Gnevor's actIOns dId not amount to the type of mtentIOnal malfeasance as would JustIfy dIscharge The prevIOus record does not support dIscharge because It IS not a progressIve step m the admmIstratIOn of dIscIplme Other factors also mdlcate that the penalty ought to be reduced. The Gnevor has been employed by GO smce October 1990, a portIOn of whIch was part tIme GIven the nature of hIS employment, that semonty IS mdIcatIve of a sIgmficant attachment to the workplace ThIS mCIdent IS, m essence, an Isolated safety mCIdent m the Gnevor's work hiStOry He told Mr Madrus, when first questIoned, that he had gone through such barrIers on two prevIOus occasIOns, when waved through by eN mamtenance crews HIS prompt admISSIOn of such to Mr Madrus speak to the truth of those assertIOns lam satIsfied that It IS more probable than not that he dId do so on those two occaSIOns The Umon has dIscharged ItS onus to establIsh those facts, to the extent necessary Those epIsodes were relIed on as a foundatIOn for the Gnevor's belIef that the barrIers were also 11 malfunctIOnmg on the mstant occaSIOn That was an mcorrect conclusIOn, but not a wantonly reckless one gIven hIS other precautIOns It was an Isolated mCIdent. Further, the eVIdence IS consIstent WIth there not bemg premedItatIOn mvolved, nor a repetItIve course of conduct. The Gnevor made an error of Judgement m the CIrcumstances The gnevor IS marrIed WIth four chIldren rangmg m age from SIX to nmeteen years He IS forty-nme years old HIS employment WIth GO was as a couner He has not been able to replace hIS Job He has depleted hIS savmgs and IS now on Employment Insurance benefits Although the financIal hardshIp of dIscharge IS usually dIfficult, gIven the Gnevor's age and famIly commItments the dIscharge has created noteworthy economIC hardshIp m thIS case As he put It, he has lost a lot. The Gnevor was candId WIth the Employer throughout and m hIS eVIdence at the heanng The Emplover used that candor and hIS admIssIOn ofwrongdomg as a SubstItute for mdependent mvestIgatIOn. It ought to have gIven hIm some credIt for hIS honesty In addItIOn, the Gnevor dId exhIbIt genume remorse at the heanng, as well as concern for the senousness of hIS actIOns and the dIsruptIOn they had caused There IS no doubt that the Gnevor's actIOns were very senous when conSIdered m terms of GO's polICIes and oblIgatIons The Employer must mamtam a hIgh standard of safety as a common carrIer HIS breach stnk.es at the heart of the Employer's safety concerns gIven 12 that It mvolves the safe operatIOn of the rollmg stock. The Employer stressed m Its submIssIons that the Gnevor's eVIdence had been that he was not responsIble for what ImpreSSIOn mIght be left m the mmds of members of the general publIc who wItnessed hIS actIOns That submIssIOn overstated the eVIdence The Gnevor's eVIdence m that regard was responsIve to questIOns regardmg whether members of the publIc mIght presume It safe to mlmlck the gnevor's actIOns smce he was an employee of GO TransIt, a raIlway company The Gnevor's responses were to the effect that he could not answer the questIOn because he dId not know what others were thmkmg That was an appropnate and reasonable answer These matters are of consIderable sIgmficance because they touch on the central concern of whether the Gnevor has the degree of self-realIzatIOn necessary to permIt a safe return to work. That IS, has he understood hIS transgressIOn and has he been rehabIlItated. I find that he has The eVIdence that he has understood and responded to hIS error eXIsts from the tIme of hIS first dIrect questIOmng by Mr Madrus When the gnevor was asked dIrect questIOns he responded candIdly and fullv It was clear from hIS eVIdence at the heanng that he accepted that he was wrong m domg what he dId. He was pressed on whether Mr Madrus had over-reacted to the sItuatIOn. HIS answer was that he ought to be pumshed, but sought the Board's opmIOn that dIscharge was exceSSIve ThIS Board finds that dIscharge was exceSSIve m these CIrcumstances The Employer ought to have consIdered that Gnevor's admIssIon as a mItIgatmg factor, rather than as a vehIcle for dIschargmg 13 hIm. I am satIsfied that the Gnevor accepted hIS responsIbIlIty for the sItuatIOn from the outset. He made no attempt to excuse hIS actIOns He dId explam the baSIS of hIS error, but knows It was an error GIven the senousness of evadmg a raIlway crossmg barrIer thIS IS a case that called for a dlsclplmary response that exceeded the usual progreSSIOn. However, dIscharge was, m all the CIrcumstances, exceSSIve A lengthy suspenSIOn IS substltuted. The DeCISIOn 1) The Gnevor IS hereby remstated forthWIth WIthout loss of semonty; 2) A one-month suspenSIOn IS substItuted for the dIscharge 3) The Gnevor IS to undergo the dnver's refresher trammg and testmg as penodIcally admImstered by the Employer pnor to bemg reassIgned to hIS couner dutles 4) The gnevor IS to be compensated for the penod he has been out of work subject to deductIOn for the one-month suspenSIOn above and any mItIgatIOn as IS the normal course 5) I remam seIzed to deal WIth any matters related to ImplementatIOn DATED at Toronto thIS 17th day of March 1999 ~ \ Damel A HarrIS, Vice ChaIr