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HomeMy WebLinkAbout1998-0963.Tidd.99-04-09 Decision I ONTARIO EMPLOYES DE LA COURONNE CROWN EMPLOYEES DE L'ONTARIO 1111 GRIEVANCE COMMISSION DE ... SETTLEMENT REGLEMENT BOARD DES GRIEFS 180 DUNDAS STREET WEST SUITE 600, TORONTO ON M5G 1Z8 TELEPHONE/TELEPHONE (416) 326-1388 180, RUE DUNDAS OUEST BUREAU 600, TORONTO (ON) M5G 1Z8 FACSIMILE/TELECOPIE (416) 326-139tS GSB #0963/98, 0964/98 OLB #515/97, 338/97 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN OntarIO LIquor Boards Employees Umon (J ames Tidd) Grievor - and - - The Crown In Right of Ontano (LIquor Control Board of OntarIO) Employer BEFORE Susan L Stewart V Ice-Chair FOR THE Don McDermott GRIEVOR Gnevance Officer Ontano LIquor Board Employees Umon FOR THE John D Hams EMPLOYER Manager, Employee RelatIOns LIquor Control Board of OntarIO HEARING March 26 1999 '- DECISION This decision deals with two grievances arising out of a one day suspension and a three day suspension imposed on Mr James Tidd At the time of the events giving rise to the grievances Mr Tidd had been employed for about nine years as a Lift Truck Mechanic at the LCBO's Durham warehouse This matter proceeded pursuant to the expedited process contained in the Collective Agreement between the parties There was no objection to my jurisdiction to hear and determine the grievances The one day suspension resulted from a determination by the Employer that Mr Tidd had failed to properly exercise his responsibilities in connection with the inspection of brakes on a lift truck certain aspects of the matter were not in dispute Mr ~idd was given a work order to check and repair the brakes on a vehicle On August 28, 1997 he reported that he had inspected and tested the brakes and that he could find nothing wrong with them The vehicle was put back into service six working days later there was a complaint about the brakes and upon inspection by another Lift Truck Mechanic on September 8, 1997, it was determined that there was no brake lining left and the rotor was scored Mr Tidd was given a work order to replace the brake pads, which he did It is the Employer's position that even if the vehicle had been operated on all three shifts, the damage which was apparent on the second inspection would have been apparent in some form when Mr Tidd did his inspection on August 2 28, 1997 and that Mr Tidd was negligent in his duties The vehicle required further brake repairs on November 28, 1997, at which time it was determined that a deterioration of the new brake lining had taken place due to oil leakage There was no dispute that such leakage causes rapid deterioration Mr Tidd acknowledged that he did not observe leakage on either of the two occasions when he inspected the vehicle However, on the second occasion he pressure washed the vehicle which could have removed any residue Mr Winstone, Maintenance Manager, was of the view that leakage was not the cause of the deterioration found on September 8, 1997 The Employer bears the onus of proof in disciplinary matters The issue to be determined here is whether the evidence - establishes negligence on the part of Mr Tidd in relation to his inspection on August 28, 1997 While the proximity in time between Mr Tidd's initial inspection and the subsequent inspection where the brake damage was clear is strongly suggestive of deterioration being present at the time of the initial inspection, the possibility of the leak which subsequently caused rapid deterioration being a factor in the condition of the brakes on September 8, 1997 cannot be definitively ruled out Accordingly, I am unable to accept that negligence on the part of Mr Tidd has been proven His . 3 grievance is therefore allowed Reference to this matter is to be removed from his disciplinary record and he is to be compensated for his wage loss I turn now to the three day suspension This suspension was imposed on Mr Tidd for disconnecting the back-up alarms on four lift trucks There was little in dispute between the parties regarding the relevant events The four lift trucks had been newly purchased and came equipped with back-up alarms The existing fleet of lift trucks did not have back-up alarms After complaints from employees in the warehouse that the alarms were annoying and distracting, Mr Tidd disabled the alarms When asked about the matter by his supervisor, Mr Tidd immediately acknowledged disabling the alarms and immediately complied with the request to reconnect them - In my view, the Employer was clearly correct in its determination that Mr Tidd acted inappropriately in disabling the alarm systems While he has authority in relation to determining the fitness of vehicles, the evidence did not establish that he has authority to take the action that he did It was suggested by the Union that circumstances in which some but not all vehicles have back-up alarms is less safe than a situation when none of the vehicles have alarms I did not find this argument to be compelling There are channels for discussions about health and safety matters This is not a I . . 4 situation where individual action was warranted or justifiable The penalty imposed on Mr Tidd was based in part on his disciplinary record Given my determination that the prior discipline could not be sustained, this matter must be viewed in the context of a clean record In all of the circumstances it is my view that the appropriate penalty in the circumstances is a written warning Mr Tidd's employment record is to be amended accordingly and he is to be compensated for his loss I retain jurisdiction to deal with any difficulties the parties may experience in implementing this decision Dated at Toronto, this qth day of April 1999 , - 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