HomeMy WebLinkAbout2012-2612 Aitken et al.17-07-18 DecisionCrown Employees Grievance Settlement Board
Suite 600 180 Dundas St. West Toronto, Ontario M5G 1Z8 Tel. (416) 326-1388 Fax (416) 326-1396
Commission de règlement des griefs
des employés de la Couronne Bureau 600 180, rue Dundas Ouest Toronto (Ontario) M5G 1Z8 Tél. : (416) 326-1388 Téléc. : (416) 326-1396
GSB#2012-2612 UNION#2012-0248-0073 Additional Files noted in Appendix “A”
IN THE MATTER OF AN ARBITRATION
Under
THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT
Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN Ontario Public Service Employees Union (Aitken et al) Union - and - The Crown in Right of Ontario
(Ministry of Community Safety and Correctional Services) Employer BEFORE Ken Petryshen Arbitrator
FOR THE UNION Craig Flood and Katherine Ferreira
Koskie Minsky LLP
Counsels
FOR THE EMPLOYER Peter Dailleboust and Felix Lau Treasury Board Secretariat
Legal Services Branch
Counsels
HEARING February 13 & 28; March 18, 21 & 24; April 2 & 3; October 27; November 27;
December 8, 11 & 16, 2014; January 21
& 29; February 5; June 1, 16 & 22, 2015; February 9, 25 & 26; May 12; June 15, 2016
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[1] I have grievances before me that relate to a health and safety work refusal
and work stoppage that occurred at the Hamilton-Wentworth Detention Centre
(“HWDC”) starting on August 14, 2012, and ending on September 11, 2012. I will refer
to the general circumstances of this work refusal as “the HWDC events”. The HWDC
events were triggered by the discovery of a missing metal electrical cover plate in the
unit 4B hallway on August 13, 2012. The discovery of the missing metal plate caused
the Correctional Officers (“COs”) to become concerned about their health and safety.
The basis for their concern was a belief that the metal plate could be weaponized by
turning it into one or more shanks and that the metal plate or the shanks could migrate
throughout the institution. The refusal of all COs to perform all of their duties was based
initially on their disagreement with the level of search management planned in response
to the missing metal plate. From August 15, 2012, until September 11, 2012, when
asked by management to attend to their posts, the COs indicated essentially that they
would go to their posts if they were permitted to wear their protective vests. At about
3:00 p.m., on August 15, 2012, a Ministry of Labour (“MOL”) Inspector determined that
section 43(3) of the Occupational Health and Safety Act (“OHSA”) did not apply to the
circumstances of the HWDC events and he ordered the workers back to work. As a
result of the work refusal, COs were not paid for the time they did not work starting later
in the day on August 15, 2012. These COs filed individual “no work, no pay”
grievances. All but six COs participating in the work refusal were issued a one-day
disciplinary suspension for not working and for not complying with management’s
direction to attend their posts. Six COs received a two-day suspension for allegedly
engaging in inappropriate conduct as well as for not working and for failing to comply
with management’s direction to attend their posts. The suspensions issued by the
Employer for the work refusal were only for the purpose of a CO’s disciplinary record,
thereby resulting in no loss of pay. Some COs filed individual grievances challenging
their suspensions and the Union also filed a grievance against the suspensions. There
is also a group grievance dated April 15, 2013, that challenged the discipline issued to
COs for participating in the work refusal.
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[2] The HWDC events prompted the Employer to file an illegal strike
application at the Ontario Labour Relations Board (“the OLRB”). The Union and the
COs named as respondents in the application claimed that the COs were participating
in a lawful health and safety work refusal. The dispute before the OLRB was resolved
by the execution of a Memorandum of Agreement and Return to Work Agreement dated
September 11, 2012 (“the 2012 Memorandum”). The 2012 Memorandum reads as
follows:
Whereas the Employer (Hamilton-Wentworth Detention Centre) filed an Illegal Strike Application and it has been numbered as Board File No. 1734-12-U related to the health and safety work refusal and work stoppage that occurred at the Hamilton-Wentworth Detention Centre during the period from August 14, 2012 to
the date of this agreement (“the HWDC Events”). And whereas the parties agree to the full and final resolution of claims, demands, appeals, proceedings in any way associated with the events, issues, and underlying facts in any way related to the HWDC events and a full final resolution
of the Application on the following terms and conditions; And whereas the parties agree that this Agreement is without precedent and does not constitute an admission of liability by either side or by any of the employees represented by the Union;
The Parties agree to the following terms: 1. Commencing at 0700 hours on September 12, 2012, a level 4 search will occur in accordance with the Ministry Weapons Search Protocol for the entire
institution. 2. It is understood that once the entire institution is searched, full inmate movement will resume. It is understood that the search teams will complete the searches without delay.
3. Managers will continue to operate the living units until the search team and unit officers arrive at which time the unit will be turned over to the Correctional Officers who will assume their regular duties. Managers will secure the inmates prior to being relieved. Once the search of each floor is completed,
the inmates will be released to the dayrooms and the unit officers will remain on their posts. 4. Management will assign the Correctional Officers and the Operational Manager to each search team. Management will make the best efforts to call
in extra staff. Management will bring up to three HWDC ICIT Teams [if available] to do a Level 4 search otherwise first responding institution ICIT Team, and the CET Team from Vanier will be utilized for the Female Unit.
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5. There will be no disruption to meal delivery and collections, court movement, and medication issue/delivery. No inmate movement outside of the dayrooms will be permitted for inmate workers, inmates going to Admit & Discharge and inmates who require medical or for emergency reasons.
6. It is agreed to suspend the local overtime protocol (HPRP) as it relates to the order of overtime offers until September 18, 2012 at 20:00 hours or until such time as the searches are completed. However, any overtime hours worked during this period will be counted. OPSEU agrees that they will not file
or support any overtime grievances that may occur as a result of this agreement. 7. As per the Provincial Occupational Health and Safety Committee minutes dated June 13, 2012, the Weapons Search Protocol will be reviewed by the
Provincial Committee. The Parties will hold the next Provincial meeting at HWDC, and will have as an agenda item a review of how the Weapons Search Protocol was applied during the period August 14th to the dates of this agreement. The Parties will also have a minimum of one member of each side of the HWDC Local H&S Committee to attend the Provincial Meeting.
8. The Employer can impose discipline up to a cap of a 2 day suspension for all correctional officers (list of effected employees to be generated by the parties) for all hours not worked associated with the HWDC events and/or for their refusal to follow orders between August 14 to the date of the Agreement.
For greater clarity, terminations will not be imposed by the Employer. The parties agree that the Union may file a grievance challenging such discipline imposed by the Employer and that a Vice-Chair of the Grievance Settlement Board will duly hear the dispute in accordance with the Collective Agreement between the parties, if such a grievance is filed.
9. The Employer can take action with respect to “no work, no pay” (payroll deletions) for all correctional officers (list of effected employees to be generated by the parties) for all hours where they did not attend their posts or did not perform their full duties between August 14 to the date of the
Agreement and in relation to the HWDC events. A Vice-Chair of the Grievance Settlement Board shall have exclusive jurisdiction to determine subsequently whether any Employer action associated with the issue of “no work, no pay” should be modified or altered. For Clarity, the “no work, no pay” issue is about whether: (i) the Employer is/was required to pay the salary of
employees who did not perform their duties during the HWDC events; and, (ii) the Employer’s recovery of any corresponding overpayment was appropriate. Any award imposed by the Vice-Chair on the issue of “no work, no pay”, shall be binding upon the parties. Pending a Vice-Chair of the GSB’s decision on the issue of “no work, no pay”, with respect to the employees who did not
perform their duties during the HWDC events, the Employer shall be: (i) entitled to refuse to pay these employees; and/or (ii) make payroll deletions made to these employees. For clarity, the Employer will start processing
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payroll deletions, the first will be reflected on September 13, 2012 pay, for employees who did not perform their duties during the HWDC events. For subsequent pay periods after September 13, 2012, the Employer agrees that a maximum of 24 hours of pay per pay period will be deducted from regular (classified) employee’s pay as a result of the HWDC events until completion of
the repayment. Nothing herein precludes grievances being filed by or on behalf of unclassified employees regarding their claims for pay or any other rights or entitlements under the Collective Agreement during the HWDC events.
10. The parties agree that the Employer shall issue to all Correctional employees a Direction regarding protective vests, dated September 12, 2012 from Assistant Deputy Minister Steve Small attached as Appendix “A”. 11. The Parties agree that the Application in Board File No. 1734-12-U is
withdrawn, and not to be refilled. 12. This entire Agreement is enforceable under section 96(7) of the Labour Relations Act.
13. The Parties agree that apart from the specific terms of this agreement and the specific processes set out herein, that they will not pursue, file or support any proceeding, appeal, and/or grievance under any statute, in any forum associated with the HWDC events. Without limiting the generality of the foregoing, the Union, responding Parties and affected employees shall not file,
pursue or support any claim, demand, action or proceeding under the
Occupational Health & Safety Act, the Labour Relations Act, the Crown
Employees Collective Bargaining Act, and the Employment Standards Act, including an appeal of a Ministry of Labour Order, a reprisal application or an unlawful lockout application pursuant to section 101 of the Labour Relations
Act. Signed this 11th day of September 2012 at the OLRB.
[3] The parties agreed in paragraphs 8 and 9 that a Vice-Chair of the
Grievance Settlement Board (“GSB”) would hear and determine the issues of discipline
and “no work, no pay”. Paragraph 13 places restrictions on the Union and COs from
pursuing certain claims. The Employer takes the position that I do not have the
jurisdiction to deal with certain matters raised by the Union in this proceeding, including
the issues of reprisal and lockout. I will address the jurisdictional issues in due course.
As provided for in paragraph 8, the Union filed a grievance dated March 23, 2013,
challenging the discipline imposed by the Employer and referred it to the GSB on March
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25, 2013. In a decision dated July 16, 2013, I addressed a timeliness issue relating to
the Union grievance that had been raised by the Employer.
[4] It took some time to devise a process for hearing the grievances and then
many days over 3 years to complete the hearing of this case. But for the co-operation
of counsel and the parties, the hearing of these grievances would likely have taken a lot
longer. Given the discipline issues, the Employer agreed to call its evidence first. In an
effort to expedite what was likely to be a lengthy hearing, the parties agreed that the
evidence-in-chief of each witness would come in by a written will-say statement and that
the witness would then be subject to cross-examination. The Employer called the
following six witnesses: Deputy Superintendent of Operations (“DS”) Tom Bradley, Staff
Services Manager (“SSM”) Mike Barton, Superintendent Cathy Morris, Acting DS of
Programs Andrea Green, Ms. Denise Scrivano, Superintendent of the Elgin-Middlesex
Detention Centre (“EMDC”), and, DS of Administration Bruce Laughlin. The referenced
titles of these witnesses were the ones that they had at the time of the HWDC events.
At the relevant time, SSM Barton was the Employer Co-Chair on the Joint Health and
Safety Committee (“the JHSC”). The Union called the following seven COs as
witnesses: Michelle MacLean, Todd Tatryn, Mark Gearing, Mike Pope, Phil Pollard,
John Dickson, and Stephen Smith. At the time of the HWDC events, CO Smith was the
President of OPSEU, Local 248, and CO MacLean was a Union steward and an
alternate on the JHSC. The Union also entered into evidence the will-say statements of
COs Beth Collins and Jason Hoye, but they were not called to testify. At the relevant
time CO Hoye was the Worker Co-Chair on the JHSC. In determining the facts, I
carefully reviewed the oral and documentary evidence. I also considered the extensive
final submissions made by counsel. I resolved the conflicts in the evidence by using the
usual tests to determine what was most probable having regard to the totality of the
evidence.
[5] As noted above, the Union entered into evidence the will-say of CO Hoye,
but he was not called to testify for medical reasons. Employer counsel advised at the
time that he would take the position during final argument that CO Hoye’s will-say
should not be given any weight. Counsel did make submissions on this issue during
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final argument. In support of its position, Employer counsel relied on OPSEU (Marshal
et al) v. Ministry of Community Safety and Correctional Services 2013 CanLII 31971
(ON GSB) and OPSEU (Iyamu) v. Ministry of Children and Youth Services 2015 CanLII
67991 (ON GSB). Having considered the submissions of counsel on this issue and the
principles referenced in these decisions, I am not prepared to give any weight to the
hearsay evidence represented by CO Hoye’s will-say statement. It would not be
appropriate in the circumstances to rely on this will-say for the truth of its contents in the
absence of CO Hoye testifying under oath and being subject to cross-examination. In
particular, I cannot accept as true the assertion by CO Hoye in paragraph 61 of his will-
say that Operational Manager (“OM”) R. Long engaged in a series of threats and threats
of reprisal against him and CO Collins. I note that many of the relevant aspects of CO
Hoye’s will-say can also be found in the will-say statements or testimony of other
witnesses.
[6] In order to provide context for some of the significant aspects of the
HWDC events, I will describe at the outset some of the physical and other features of
the HWDC and I will also deal generally with the following subjects: contraband, the
Weapons Search Protocol (“WSP”), the refusal to work provision in the OHSA and
some similar incidents at the institution that preceded the HWDC events.
[7] The HWDC is a maximum-security institution for adult offenders with a
capacity of 494 male and 52 female inmates. It employs approximately 193 classified
COs and about 17 fixed-term unclassified COs. It also employs about 59 classified and
17 unclassified employees in food service, maintenance, housekeeping, health and
administrative positions. The institution has six stories or levels, five of which house
inmates. The first and second levels each have one unit (1B and 2B). Unit 1B houses
female inmates and can generally have as many as 50 inmates. The morning kitchen
worker inmates are housed in unit 2B right. The third, fourth and fifth levels each have
three units (identified as 3A, 3B and 3C, etc.). Each unit has an inmate common area,
an inmate living unit and a hallway which runs between the inmate common area and a
staff pod area. A ramp runs from the first to the fifth level for the purpose of moving
inmates throughout the facility as needed. The more challenging inmates appear to be
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housed on the fourth level. Worker inmates engaged in laundry and housekeeping
duties are located in unit 5C. These worker inmates collect garbage and laundry from all
of the units within the HWDC and they are supervised by COs when they perform these
duties.
[8] The existence of contraband in a correctional facility, including at the
HWDC, is an ever present concern. Simply put, contraband is unauthorized property in
the possession of an inmate. The Ministry has policies and procedures to address the
issue of contraband with the primary method for dealing with it being the searching of
inmates and areas of the institution. Without referring to all of the searches and security
measures at the HWDC that are designed to minimize the risk of inmates possessing,
concealing and transporting contraband, I note that COs generally conduct routine
searches of the entire institution every two weeks, with the search including inmates,
inmate living units and inmate common areas. Authorized random searches of a unit or
part of a unit are performed when necessary under the supervision of an OM. Inmates
are required to pass through metal detectors in the Admission & Discharge area when
they enter or leave the institution. Inmates are frisk searched each time they enter or
leave a living unit and when they are in transit between various activity areas. At the
direction of management, strip searches can be conducted when a living unit is being
searched and at other times when deemed necessary. Specialized equipment such as
probes, flashlights, mirrors, handheld metal detectors and search gloves can be utilized
during a search.
[9] The most serious forms of contraband are weapons or items that can be
made into a weapon. Weapons are defined as: “commercially manufactured or locally
made items that are designed to cause an injury by stabbing, slashing, striking, ballistic
or other means. They also include ammunition and explosives.” The words “locally
made items” refer to contraband that has been made into a homemade knife, shank
and/or shiv which have the potential for use that includes stabbing and slashing. The
Ministry has a policy which governs the response to the presence of a weapon or the
possible presence of a weapon in an institution.
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[10] The Searching for Weapons policy establishes a process for assessing
threat levels and a protocol to follow when searching for weapons at an institution. This
policy is also referred to as the WSP. Under the WSP the Superintendent or designate
will assume the role of Crisis Manager. The Crisis Manager will establish and consult
with a threat assessment team composed of Union and Employer representatives. The
threat assessment team must include a worker representative from the JHSC or a
designee in the absence of a worker representative. The threat level assessment is
completed by considering a variety of criteria listed in the Weapons Search Protocol
Checklist (“WSP Checklist”). The process is designed to determine the level of risk to
institutional safety and security and to develop recommendations regarding the
appropriate level of intervention and/or response to the threat. The Crisis Manager
makes the decision as to the appropriate response, including the level and area of
search. The WSP identifies five possible search levels with Level 1 the lowest and
Level 5 the highest. The five search levels are described in the WSP as follows:
Level 1 - Routine search of a targeted inmate(s) or contained area(s) or the institution by in-house correctional staff conducted in accordance with the procedures for the regular institutional search program.
Level 2 - Search of a targeted inmate(s) or contained area or the institution with inmate removal by in-house correctional staff wearing body armour and using hand-held metal detectors and handcuffs/flexcuffs. Level 3 - Search of a contained area(s) or the institution by in-house correctional
staff using the equipment identified for Level 2 above and with an ICIT/CET activated but on stand-by as a precautionary measure. Level 4 - Search of a contained area(s) or the institution with cell extractions by ICIT/CET, and searches by designated in-house search teams.
Level 5 - Search of the institution with cell extractions by multiple ICIT/CET teams, and searches by in-house and external search teams.
[11] The WSP references the use of certain equipment, including body armour,
starting at a Level 2 search. Body armour refers to a protective vest consisting of a
front ballistic panel and a back stab panel. COs at the HWDC are provided with fitted
vests that are stored in a secure area of the institution when not in use. At the time of
the HWDC events there was not a separate policy apart from the WSP that governed
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the wearing of vests. The evidence indicates that the practice at the HWDC with
respect to searching for weapons mirrors the terms of the WSP. In particular, the level
of search and the area to be searched is ultimately determined by management and the
wearing of vests is limited to COs who are engaged in a Level 2 search or a higher level
of search, and to COs who are working in the area(s) being searched. In other words,
the practice on vests at the HWDC was that COs did not wear a vest when performing a
Level 1 search or when they were engaged in their usual duties as COs outside of the
area(s) of search.
[12] The presence of homemade weapons is a relatively common occurrence
at the HWDC. As CO Smith indicated in his will-say, inmates are ingenious at both
fabricating and concealing weapons. Therefore, a search in response to a report of a
potential weapon is not always successful. Inmates can hide weapons on their body in
ways that are not easily detectable and it is possible for inmates to transport
contraband, including a weapon to various areas of the institution. The most common
approach when searching for a weapon at the HWDC is to limit the search to the area of
the institution, such as a part of a unit or the entire unit, where it is most likely that the
weapon might be located.
[13] The right to refuse work by a worker where his or her health and safety is
endangered is contained in Part V, section 43 of the OHSA. Certain categories of
persons, including persons employed in the operation of a correctional facility, have a
limited right to refuse work. The essential features of section 43 of the OHSA are as
follows:
Non-application to certain workers
43. (1) this section does not apply to a worker described in subsection (2) (a) when the circumstances described in clause (3) (a), (b), (b.1) or (c) is
inherent in the worker’s work or is a normal condition of the worker’s employment; or (b) when the worker’s refusal to work would directly endanger the life, health or safety of another person.
(2) the worker referred to in subsection (1) is,
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(a) a person employed in, or a member of, a police force to which the Police
Services Act applies; (b) a firefighter as defined in subsection 1 (1) of the Fire Protection and Prevention Act, 1997;
(c) a person employed in the operation of, (i) a correctional institution or facility, …
Refusal to work (3) A worker may refuse to work or do particular work where he or she has reason to believe that,
(a) any equipment, machine, device or thing the worker is to use or operate is likely to endanger himself, herself or another worker; (b) the physical condition of the workplace or the part thereof in which he or
she works or is to work is likely to endanger himself or herself; or (b.1) workplace violence is likely to endanger himself or herself; or (c) any equipment, machine, device or thing he or she is to use or operate or
the physical condition of the workplace or the part thereof in which he or she works or is to work is in contravention of this Act or the regulations and such contravention is likely to endanger himself, herself or another worker. Report of refusal to work (4) Upon refusing to work or due particular work, the worker shall promptly report the circumstances of the refusal to the worker’s employer or supervisor who shall forthwith investigate the report in the presence of the worker and, if there is such, in the presence of one of, (a) a committee member who represents workers, if any; (b) a health and safety representative, if any; or (c) a worker who because of knowledge, experience and training is selected
by a trade union that represents the worker, or if there is no trade union, is selected by the workers to represent them, who shall be made available and who shall attend without delay.
- 12 - Worker to remain in safe place and available for investigation (5) Until the investigation is completed, the worker shall remain, (a) in a safe place that is as near as reasonably possible to his or her work
station; and (b) available to the employer or supervisor for the purposes of the investigation.
Refusal to work following investigation (6) Where, following the investigation or any steps taken to deal with the circumstances that caused the worker to refuse to work or do particular work, the worker has reasonable grounds to believe that,
(a) the equipment, machine, device or thing that was the cause of the refusal to work or do particular work continues to be likely to endanger himself, herself or another worker;
(b) the physical condition of the workplace or the part thereof in which he or she works continues to be likely to endanger himself or herself; (b.1) workplace violence continues to be likely to endanger himself or herself; or
(c) any equipment, machine, device or thing he or she is to use or operate or the physical condition of the workplace or the part thereof in which he or she works or is to work is in contravention of this Act or the regulations and such contravention continues to be likely to endanger himself, herself or another
worker, the worker may refuse to work or do the particular work and the employer or the worker or a person on behalf of the employer or worker shall cause an inspector to be notified thereof.
Investigation by inspector (7) An inspector shall investigate the refusal to work in consultation with the employer or a person representing an employer, the worker, and if there is
such, the person mentioned in clause (4) (a), (b), or (c). Decision of inspector (8) The inspector shall, following the investigation referred to in subsection
(7), decide whether a circumstance described in clause (6) (a), (b), (b.1) or (c) is likely to endanger the worker or another person.
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Idem (9) The inspector shall give his or her decision, in writing, as soon as is practicable, to the employer, the worker, and, if there is such, the person mentioned in clause (4) (a), (b), or (c).
Worker to remain in safe place and available for investigation (10) Pending the investigation and decision of the inspector, the worker shall remain, during the worker’s normal working hours, in a safe place that is as
near as reasonably possible to his or her work station and available to the inspector for the purposes of the investigation. … Entitlement to be paid
(13) A person shall be deemed to be at work and the person’s employer shall pay him or her at the regular or premium rate, as may be proper, (a) for the time spent by the person carrying out the duties under subsections (4) and (7) of a person mentioned in clause (4) (a), (b), or (c); and
(b) for time spent by the person carrying out the duties under subsection (11) of a person described in subsection (12).
[14] Section 43 sets out the rights of persons involved in a work refusal and the
procedures that should be followed. In Sidbec Dosco Inc., [1988] OLRB Rep. Dec.
1334, Vice-Chair Davie describes the premise of OHSA and the main features of
section 43 as follows:
21. …the fundamental premise of the O.H.S.A. is that occupational health and safety is a common responsibility of both the employer and the employees and, where prescribed in the Act, the trade union representing employees. In order to achieve a workplace free of occupational health and safety hazards, the
employer, the employee and in appropriate cases the trade union, are charged with the task of identifying, assessing and ultimately resolving health and safety hazards in the workplace. To this end the O.H.S.A. establishes an internal responsibility system in the joint O.H. & S.C. The concept of internal, mutual responsibility is recognized in the process established in section 23 [now section
43] of the Act. 22. The formal process set up in section 23 consists of a number of steps. The process established has been referred to as a two-tiered process in reference to the fact that there are two levels of investigation – the first level of investigation is
conducted by the employer, while the second tier of the process is the investigation by the inspector from the Ministry of Labour…
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[15] The Sidbec Dosco Inc. decision, supra, and some of the other decisions to
which I was referred, provide a detailed analysis of the formal steps contained in section
43 of the OHSA. For reasons that will become obvious, I find it unnecessary to review
the formal process that must be followed in a typical work refusal, the consequences of
failing to adhere to the process and the decisions that address these issues. In my
view, the initial question for determination in this matter is whether the COs were
entitled to refuse work given the circumstances of the HWDC events. As set out in
section 43(1) (a) of the OHSA, this question necessitates a focus on whether the
circumstances that gave rise to the refusal were “inherent in the worker’s work” or was
“a normal condition of the worker’s employment”.
[16] The missing electrical plate that triggered the HWDC events was not the
only metal plate that went missing at the HWDC in 2012. The missing plates were
secured by regular screws rather than security screws. The local OHSC had
recommended that regular screws be replaced with security screws for all of the
electrical plates within the secure area of the HWDC. This task had not been completed
by August of 2012. From the Union’s perspective, the events relating to the other
missing plates are relevant for assessing the nature of the HWDC events.
[17] CO Taylor discovered and reported on May 23, 2012, that an electrical
cover plate was missing in the small interview room in unit 4B. CO Taylor also indicated
that he had a health and safety concern as a result of the missing plate. It appears that
the metal plate was missing as of at least the previous day. A threat level assessment
was completed by OM Gluchowski and CO MacLean. The WSP Checklist discloses
that it was agreed that unit 4B would be locked down and that a Level 1 search,
enhanced with metal detectors, would be conducted. The staff agreed initially that vests
were not required and no one requested that all of level 4 be searched. In the early
afternoon and before the search of unit 4B had been completed, another CO indicated
that there should be a Level 2 search of unit 4B and initiated a work refusal. The MOL
was contacted and an Inspector arrived at the facility just after 4:00 p.m. Discussions
with the Inspector and staff resulted in a No Orders Issued report. The Inspector
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suggested that the stage 1 discussions continue and they did. The CO who initiated the
work refusal decided to return to work and the enhanced Level 1 search was completed
the following morning. No contraband was found during the search. On returning to the
unit after the work refusal had been initiated on May 23, 2017, OM Gluchowski noticed
that three COs were wearing vests. When he determined that no one had authorized
them to wear vests, he asked each of them to prepare an occurrence report to explain
why they wore their vests without authorization. As noted previously, the WSP does not
provide for the wearing of vests during a Level 1 search.
[18] On August 1, 2012, a metal plate covering an electrical receptacle was
discovered missing from the ramp between levels 2 and 3. As noted previously, this
ramp is the main route used by staff and inmates to travel throughout the institution.
OM Higgins and CO Hoye participated in the threat level assessment. The WSP
Checklist confirms that the metal plate could be used as a weapon, that it posed the
possibility of serious injury/death and that potential motives of the threat were injuries to
staff, self and other inmates. There was agreement that inmates would be locked down
and that a Level 2 search of the entire institution would be implemented (except for unit
1B/Seg.) involving the use of vests, metal detectors and the handcuffing of inmates
through the hatch. The completion of the search did not result in the discovery of the
missing metal plate. A search of the institution that was conducted in this instance has
the effect of disrupting the normal operation of the institution for at least the two days
that it would take to complete the search.
[19] On August 4, 2012, CO Tatryn was assigned to unit 4B. He was
approached at about 5:45 p.m. by an inmate while he was at the grille of unit 4B left and
handed an envelope. The inmate told him to read it right away, but to keep it to himself
because he did not want others to think he was a rat. In the presence of the in-charge
officer, CO Tatryn opened and read the enclosed letter. The letter read as follows:
This is a note for whoever. No names. The piece missing From the ramp was on this
Range 4BL in the bathroom, it Was not found in the search. Friday. We don’t want to get
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Stabbed cells 4 and 9 have made 8 shanks out of it. We have Seen them. Please don’t search Immediately. We don’t want to Look like rats but it is here.
Don’t search 4 and 9 right away So it looks like a real search. This is not a joke.
[20] Shortly after 6:00 p.m., unit 4B was locked down as a result of the
information CO Tatryn had received from the inmate. I do not have any evidence as to
whether a search was conducted, the level of search and what area was searched.
Given the evidence I did hear about searches under the WSP, it is likely that the
information provided by the inmate resulted in a Level 2 search of unit 4B. Any search
that was conducted did not result in the discovery of a metal plate or shanks fashioned
from a metal plate.
[21] It was in this context that the HWDC events took place. A few months
prior to the observation in mid-August 2012, that a metal plate was missing from the unit
4B hallway, two other metal plates had gone missing and an inmate had advised that 8
shanks had been made from one of them. The previous missing metal plates or any
shanks made from a metal plate had not been discovered after searches had been
conducted. In describing the detailed evidence about the HWDC events, I have
attempted to be as concise as possible. I will focus primarily on the events concerning
the “no work, no pay” issue, and to a lesser extent on the events that are relevant to the
disciplinary issues.
[22] At about 10:45 a.m., on August 13, 2012, CO Leroux reported the
discovery of the missing metal plate from the unit 4B hallway to acting OM Yule. The
inmates in unit 4B were locked down for lunch at 11:00 a.m. Likely because of his
inexperience in the position, OM Yule did not complete a threat level assessment and
the WSP Checklist. However, an enhanced Level 1 search of unit 4B was carried out.
The search commenced at 2:15 p.m. with the use of metal detectors. Inmates were
stripped search and frisked and the staff searched with their vests on. It was only
- 17 -
because the inmates were not handcuffed through the hatches before being removed
from their cells that this search did not meet all the criteria of a Level 2 search. Any CO
observing the search would likely have concluded that a Level 2 search was being
conducted given that the COs conducting the search were wearing vests. It was close
to 7:00 p.m. when the search was completed and unit 4B was returned to the normal
routine. A metal plate or pieces of it were not found during the search. There were no
health and safety concerns expressed on August 13, 2012, by any CO about the level of
search, the area searched and the safety precautions that were employed during the
search.
[23] OM Gluchowski conducted the morning muster on August 14, 2012, at
about 7:00 a.m. He advised the COs present about the previous day’s search of unit
4B. Several COs indicated that they had health and safety concerns due the possible
migration of the missing metal plate and its potential use as a weapon. OM Gluchowski
responded to these concerns by indicating that the inmates would remain locked down
until upper management was advised of their concerns at the morning meeting. COs
reported to their posts, but did not unlock inmates at the usual time.
[24] At about 8:30 a.m., OM Duykers, the OM assigned to the fifth floor, had
ordered staff to unlock the inmates on his floor. It appears that he was particularly
interested in ensuring that the worker inmates in unit 5C commenced their duties. The
staff on the fifth floor, and CO Collins in particular, expressed a concern about unlocking
the inmates without there being a proper search for the missing metal plate. With the
assistance of CO Hoye, CO Collins advised OM Duykers that it was unsafe to unlock
the laundry and housekeeping worker inmates from unit 5C because they could
participate in the migration of the missing metal plate. OM Duykers reported the work
refusal and the basis for it to upper management. At about 9:00 a.m., DS Bradley
informed SSM Barton of the events of the previous day relating to the missing metal
plate. DS Bradley asked him to complete a threat level assessment and to investigate a
work refusal by CO Collins at unit 5C.
[25] SSM Barton attended at unit 5C to investigate the work refusals. COs
- 18 -
Collins and Hoye informed him of their health and safety concerns arising from the
missing metal plate. An interim resolution was reached that would allow for the
movement of the worker and other inmates. It was agreed that the pathway (ramp,
laundry unit, main corridor, etc.) the worker inmates would take would be searched. It
was also agreed, among other measures, that inmates leaving unit 5C would be
stripped searched and that metal detectors would be used to scan the inmates and their
clothing for contraband. CO Collins resumed her duties utilizing the agreed to security
precautions. After leaving unit 5C, SSM Barton and CO Hoye went to the In Charge
Manager’s office to do a threat level assessment and to complete the WSP Checklist.
CO Hoye brought with him the WSP Checklist from August 1, 2012, that he and OM
Higgins had completed when a missing plate was discovered on August 1. CO Hoye
advocated strongly that a Level 2 search of the entire building should be conducted
given that the circumstances were similar to those that had occurred on August 1 which
had resulted in such a search. SSM Barton discussed this request with senior
management. He then advised CO Hoye that management was only willing to perform
a Level 1 search on the remainder of the fourth floor, namely for units 4A and 4C. With
the failure to agree on the threat level assessment, the work refusal continued. SSM
Barton contacted the MOL and Inspector Parco arrived at the HWDC at about 12:30
p.m.
[26] Attending the meeting with the Inspector Parco in the multi-purpose room
were COs Hoye and Collins, SSM Barton, OM Long and ADS Green. The main focus
of the discussion was on the type of search that should be conducted in the
circumstances. CO Hoye maintained that a Level 2 search of the institution should be
conducted and the Employer took the position that such a search was not warranted.
By about 3:00 p.m., Inspector Parco had completed the Field Visit Report (“FVR”) and
discussed it with the parties at a further meeting. The FVR referenced the search for
the missing metal plate that had been performed at unit 4B on the previous day and that
COs were refusing to work on August 14, 2012, because the metal plate may have
migrated to another area of the institution. CO Hoye had the opportunity to identify
aspects of the FVR with which he disagreed and he also added some comments. The
key paragraphs of the FVR are as follows:
- 19 -
The management has followed their protocol [and] has demonstrated due diligence in dealing with this situation. At this point there has been no evidence that there is a weapon, and it could not be demonstrated that there was an immediate hazard to any officer.
It is recommended that as the facility continues to do their routine searches of the facility extra caution and preventative measures be taken to ensure the safety of the officers. (ie: the use of wand metal detectors etc.) It is the opinion of this inspector that the continuation of the officers to conduct
their work is not likely to endanger their Health & Safety. [27] The FVR did not result in ending the work refusal. CO Hoye discussed
the FVR with other COs. There developed some uncertainty about the recommended
level of search having regard to the paragraph in the FVR that referenced “preventative
measures” and the use of “wand metal detectors”. Some COs interpreted the reference
to metal detectors as requiring a Level 2 search since metal detectors and similar
protective equipment are not used during a Level 1 search. CO Hoye raised this
uncertainty with SSM Barton with the result that the MOL was contacted to clarify the
FVR. The COs did not comply with the Employer’s order at 6:00 p.m. to unlock the
inmates due to their ongoing health and safety concerns and the uncertainty over the
FVR. The HWDC remained on lockdown for the remainder of August 14, 2012.
[28] The further contact with the MOL led to a teleconference with Mr. H. Vogt,
MOL Manager, starting at about 6:00 p.m. Participating in the call were SSM Barton,
ADS Green, COs Smith, J. McCormick and Hoye. CO Hoye had to leave shortly after
the start of the teleconference due to child care issues. The teleconference did not take
long to complete. The issue of the ambiguity of the one paragraph in the FVR was
raised. Manager Vogt stated that the ruling in the FVR is “not likely to endanger” and
asked whether the workers had a new reason for refusing work. CO Smith said they did
not. Manager Vogt indicated a few times that the workers did not have the right to
refuse work. CO Smith felt that the MOL was not interested in hearing his concerns and
he indicated that he was done talking to Manager Vogt. The teleconference ended with
Manager Vogt essentially stating that there was no right to refuse work since there was
- 20 -
no new reason for the refusal. At 7:40 p.m. Manager Vogt sent a fax to the HWDC
containing the following determination:
Since no new reasons for refusing to work were raised, the inspector’s previous decision stands. The inspector will attend at the facility on the morning of August
15 to address any additional concerns and to clarify aspects of the report. [29] COs Smith and McCormick had two further meetings with upper
management during the evening of August 14. Superintendent Morris, DS Bradley and
SSM Barton were in attendance at the last meeting. CO Smith requested a Level 2
search of units 4A, 4B and 4C, with the possibility of expanding the search if the metal
plate was not found. The matter was left with the Employer offering a Level 2 search of
units 4A and 4C and an indication that the inmates would not be unlocked until the MOL
addressed the situation on the following day.
[30] In describing the events that occurred on August 15, 2012, I relied to a
considerable degree on the will-say of CO MacLean and to a lesser extent on the will-
say of CO Smith. In the context of all of the evidence, I found that their evidence best
captured the relevant events of that day.
[31] At about 6:50 a.m., DS Bradley addressed the COs at muster. He told
them about the search of unit 4B for the missing metal plate and the MOL determination
in the FVR of the previous day. He indicated that there would be a Level 2 search that
morning of units 4A and 4C and that only the COs assigned to the search team and to
units 4A and 4C would be permitted to wear vests. He stated that the inmates in unit 4B
were to be unlocked and released to the 4B dayroom. He also indicated that the COs in
units 4A and 4C were expected to remove their vests at the completion of the search
and that the inmates in those units were to be unlocked so as to return the institution to
normal operations. Some COs then expressed health and safety concerns. They
referred to the migration of the metal plate and the fact that they might have to respond
to a code on the fourth floor without a vest. The COs requested a Level 2 search and
that they be allowed to wear their vests. DS Bradley responded that all staff members
who were not assigned to units 4A and 4C or the search team were not allowed to wear
- 21 -
their vests. He also advised that the MOL would be returning that morning to clarify the
order in the FVR that was issued on the previous day.
[32] CO MacLean and CO G. Vanderdeen discussed the situation with the
COs scheduled to work the T7 shift. These COs advised them that they were refusing
to work without their vests and that they would stay in the staff lounge. CO MacLean
reported this development to management. DS Bradley denied a request from CO
MacLean that the COs be permitted to wear their vests until the MOL clarified the FVR.
He reiterated the Employer’s position communicated at muster. CO MacLean spoke
again to the COs in the staff lounge. They confirmed that they were invoking their right
to refuse unsafe work and she again informed DS Bradley that the COs would report to
their posts if they could wear their vests. CO MacLean participated in a further meeting
with upper management at about 9:20 a.m. The positions of the parties were
canvassed again and remained unchanged. At about 10:00 a.m. CO MacLean, with
other COs, addressed COs scheduled to work the T7, T8 and T9 shifts in the courtyard.
The COs were given an update on the health and safety issues and they again indicted
that they were not prepared to report to their posts. DS Bradley was again so advised.
[33] At about 10:25 a.m. managers from other institutions began arriving at the
HWDC to attend at the posts the COs were refusing to occupy. MOL Inspectors Parco
and C. Boccinfuso attended at the HWDC at about 10:30 a.m. Meeting with the
Inspectors in the multi-purpose room were DS Bradley, SSM Barton, ADS Green, COs
MacLean and Hoye. The Inspectors were given updates by the parties. The MOL
agreed to clarify the FVR and accepted CO Hoye’s view that the FVR should be
amended rather than a new one created. After the meeting adjourned, Inspector Parco
deleted the ambiguous paragraph that referred to “the use of wand metal detectors etc.”
and replaced it with a new paragraph in the FVR that read as follows:
The employer has established procedures that determine the level of risk and the nature of precautions to be taken in various circumstances. The workplace parties have identified that additional areas of the fourth floor will be searched and have determined the level of precautions to be taken.
- 22 -
[34] The meeting with the MOL resumed and the amended FVR was signed by
SSM Barton and CO Hoye at about 12:10 p.m. COs MacLean and Smith, and other
COs, addressed the staff in the courtyard at about 12:40 p.m. The COs were advised of
the amended FVR. After a thorough discussion, the COs elected to continue with the
work refusal because they believed that their concerns were not being addressed.
When CO MacLean advised SSM Barton of this, he advised her to contact the MOL.
After advising CO Smith that she would be calling the MOL, CO MacLean contacted the
MOL at about 13:12 p.m. She advised J. Gratton of the missing metal plate, the
employer’s refusal to conduct a Level 2 search of the entire institution, management’s
refusal to permit COs to wear vests and the Employer’s failure to allow the internal
responsibility system to work on behalf of the COs on duty. CO MacLean asserts in her
will-say that, to the best of her knowledge, the MOL never issued a report addressing
the issue of vests.
[35] Another discussion of the work refusal took place in the multi-purpose
room shortly after 1:00 p.m., with the MOL Inspectors present. COs MacLean and
Smith, and other COs were present, along with DS Bradley and SSM Barton.
Management again stated its position on the issues as follows. The Employer would
conduct a Level 2 search of units 4A and 4C and only the staff in those units and
members of the search team would be permitted to wear vests. Once the search was
completed, COs would be expected to remove their vests and release the inmates to
the dayrooms. All areas of the institution would return to normal operation and staff
would not be permitted to wear their vests. CO Smith tried to convince the Inspectors
that a Level 2 search covering more areas of the institution was appropriate in the
circumstances. The Inspectors kept repeating that the COs did not have the right to
refuse work under the OHSA. The Inspectors requested the opportunity to address the
COs.
[36] The Inspectors addressed the staff for at least 40 minutes in the courtyard.
The MOL advised the staff that the Employer had a protocol in place and the COs did
not have the right to engage in a work refusal under section 43 of the OHSA. The COs
asked the Inspectors various questions including why management would not allow
- 23 -
them to wear their vests. According to CO Smith, the Inspectors kept repeating that the
COs had no right to refuse work. Given the negative reaction of the COs, CO Smith
advised the Inspectors that it was best that they left. In his will-say, CO Smith refers to
a discussion that he had with the Inspectors after leaving the courtyard that went as
follows. He asked them if they were going to make a determination on the vest issue.
Inspector Boccinfuso replied that that issue was not before him now and that he was
only there to deal with the level of search. Inspector Parco did not respond at all. When
CO Smith stated that the concern of the COs now was about the vest issue, Inspector
Boccinfuso just kept repeating that the COs did not have the right to refuse.
[37] At a meeting at about 2:30 p.m., the MOL again addressed the parties in
the multi-purpose room. The Inspector indicated that management had not violated its
procedures and that the WSP gave management the power to determine the level of
search and the areas to be searched. The Inspector indicated that the requirements for
a work refusal under section 43 of the OHSA had not been met. Inspector Parco
presented the final FVR to the parties at about 2:50 p.m. The last two paragraphs of
this FVR read as follows:
The employer has stated that they will be doing a level 2 search of the adjacent areas (4A and 4C) in accordance with their procedure for Searching for Weapons.
The inspector has determined that section 43(3) does not apply to this situation. The reasons for refusing work do not meet the criteria laid out in the section of the Act. The workers are ordered back to work.
At CO MacLean’s request, the phrase “The workplace parties are encouraged to use
the IRS to deal with issues” was added in handwriting to the last paragraph of the FVR.
The worker side did not sign the FVR.
[38] The final order from the MOL contained in the FVR was read to the COs
assembled in the courtyard. After considerable discussion about the issues, the COs
voted that they would not report to their posts without their vests. CO MacLean advised
SSM Barton of this result. At about 3:40 p.m. Superintendent Morris advised COs
Smith, MacLean and other COs that the COs would be removed from payroll for the
- 24 -
duration of the work refusal. She also advised that disciplinary action may be taken for
participation in the work refusal and that management would begin meeting with each
CO in the presence of the Union. The worker representatives then met with the COs in
the courtyard to advise them of the positions taken by Superintendent Morris. The COs
decided that they would not report to their posts unless they could wear their vests and
a Level 2 search of the institution was conducted. CO MacLean reported the decision
of the COs and the reasons for it to management.
[39] Starting at 5:00 p.m. management began to meet with COs. A manager
read from a script that had been prepared by a lawyer. The script read as follows:
As per MOL’s decision [provide a copy of the decision], your work refusal does not fall under the scope of Section 43 (3) of the Occupational Health and Safety Act (OSHA). Therefore, you are directed to return to your post and resume all your duties. Your supervisor is issuing you a direct order to return to your position and resume all duties. Will you follow this direction?
If the answer is “no”: Please be advised that your failure to comply with the direction to report to your post and perform your duties will result in your being sent home and removed
from payroll for the time during which you are refusing to work. Please note that this direction is not a disciplinary action, but rather, an application of the general “no work, no pay” principle. At this time will you return to your post? If the answer continues to be “no”:
Since you are refusing to return to your post, you are hereby directed to leave the institution. Since you have decided to refuse the performance of your duties, you will not be paid for the time during which you did not perform your duties.
Please be advised that if you are willing to comply with the direction to resume your full duties, you are directed to return to the institution for the remainder of your shift and at that time you will be placed back on payroll. It is your employer’s expectation that you report for duty and resume all of your position’s responsibilities on your next scheduled shift.
Please be advised that your failure to follow the direction to attend at your post and perform your duties may be subject to an allegation hearing, which may result in discipline.
- 25 -
[40] As noted previously, the Employer began implementing the principle of “no
work, no pay”, at about 5:00 p.m. on August 15, 2012, when managers began reciting
the script to COs. For the duration of the HWDC events, COs attended at the institution
in uniform (with a few exceptions). At the commencement of each shift a manager
would follow the script and advise the CO or the COs as a group about the MOL
decision and direct the CO or COs to go to their post and resume all of their duties. The
invariable response from a CO to this direction was that the CO would comply if he or
she was permitted to wear their vest. Management did not give permission to the COs
to attend at their posts with vests. Each time a CO refused to attend his or her post, the
manager would reference the “no work, no pay” principle and advise the CO that a
failure to comply with the direction could result in discipline.
[41] On August 16, 2012, CO MacLean was wearing her vest as she attended
at DS Bradley’s office at around 7:18 a.m. DS Bradley asked her to remove her vest
and she complied. At about 10:00 a.m., CO MacLean met with some Union stewards to
touch base and it was confirmed that the position of the COs, with the support of the
Union, continued to be that they wanted a Level 2 search and that they would return to
their posts if they were permitted to wear vests. At about 7:10 a.m., on August 22,
2012, as DS Bradley was going through the script, COs Hoye and Smith raised the
issues of vests and the level of search to which DS Bradley responded as follows: “this
is not about vests; it is about the MOL order and your refusal to comply with it and our
instructions to return to work.” DS Bradley indicated in his testimony that his response
was meant to convey that the parties were dealing with a labour relations dispute, and
not an issue about vests. While DS Bradley addressed staff with the information
contained in the script at about 8:10 a.m. in the staff lounge on August 26, 2012, a
discussion took place which included the subject of vests. A CO asked where it states
that a CO could not wear a vest. DS Bradley stated, in essence, that the WSP set out
the circumstances for the wearing of vests. He indicated that vests are to be worn
under three conditions, namely community escorts, a Level 2 or higher search and ICIT
activations for ICIT members. Staff was reminded that management had advised on
August 15, 2012, that COs assigned to units 4A and 4C and members of the search
team were permitted to wear their vests since a Level 2 search had been authorized for
- 26 -
those areas. He indicated that COs who were not in the area of a Level 2 search were
told not to don their vests which was consistent with the practice of the institution. He
finally reminded the COs present that the same protocol has been in place for some
time without issue.
[42] The work refusal that started on August 15, 2012, turned into a stalemate
that lasted for many weeks. Management, relying on the MOL order, directed COs to
return to their posts and explained the consequences of their failure to do so. The COs
refused to attend to their posts because they believed that their health and safety
concerns were not being addressed. Managers filled in for the COs who did not report
to their posts. As Superintendent Morris described in her will-say, the work refusal had
a significant impact on the operation of the HWDC. The Union, led by CO Smith, made
efforts during the work refusal to minimize as much as possible the disruption to the
normal operation of the institution and to keep the COs calm. It was during the course
of the work refusal that six COs allegedly engaged in some misconduct which led the
Employer to give them an additional day of suspension. As the work refusal continued,
the parties attempted to negotiate a resolution, but their efforts were unsuccessful until
they were before the OLRB and agreed on the 2012 Memorandum.
[43] In addition to agreeing to a process for addressing the “no work, no pay”
and the discipline issues, the parties also reached agreement on two other important
matters that are reflected in the 2012 Memorandum, namely the level of search and the
wearing of vests. They agreed that a Level 4 search would be conducted for the entire
institution before the operation of the living units would be turned over to the COs from
the managers. Conducting a high level search of the facility is consistent with what
occurs after managers have been operating an institution for a period of time. COs
appear to take the view that an institution that is inadequately staffed with managers will
likely result in health and safety concerns that can be remedied only by a high level
search of the entire institution. Such a search provides COs with some assurance that
they will be returning to an institution that is as safe as possible. The parties also
agreed that COs could wear their protective vests during the course of their normal
duties and when performing Level 1 searches. This altered the practice that had been
- 27 -
in effect for many years under the WSP. The direction on vests from ADM Small
referred to in paragraph 10 of the 2012 Memorandum reads in part as follows:
APPENDIX A
Until employer and employee representatives from both the Provincial Joint Occupational Health and Safety Committee and the Ministry Employee Relations Committee meet to discuss possible amendments to the wearing of body armour
(personal protective vests), the Weapons Search Protocol, and related policies and procedures, the following interim measures will apply: 1. Correctional employees who have been issued ministry approved body armour and have properly fitted armour are permitted to wear body armour
during the course of their regular duties and are responsible to maintain, store, and secure the body armour in accordance with existing policies and procedures. As stated in the Maintenance and Storage of Body Armour policy, “all body armour when not in use ….must be stored at the institution in the area(s) designated by the Superintendent”;
…. 3. Although employees may choose to wear their body armour during routine or Level One searches, this option does not alter or amend the current procedures for completing routine or Level One searches;
…. [44] The mystery of the missing metal plates was not solved with the Level 4
search of the entire institution that took place after the work refusal ended. Some
contraband was discovered during that search, but the missing metal plate(s) or pieces
of them were not found. There were however discoveries of homemade metal weapons
not long after the Level 4 search had been completed. A handmade metal shank was
found in unit 4C left on September 19, 2012. This discovery led to a Level 2 search of
unit 4C left. As part of her duties to log and check incoming mail on October 1, 2012,
CO MacLean discovered a “sharpened metal object about 4 inches long” in an envelope
addressed to “NEW WHITE SHIRT, Female With Tattoos”. This led to a Level 2 search
of unit 4A and the surrendering of a similar piece of metal by an inmate. It appears that
the homemade metal weapons discovered on September 19 and October 1, 2012, were
not made from the missing metal plates. On September 27, 2012, a weapon made from
a razor blade with a cardboard handle tightly wound with string was found by a CO in
- 28 -
unit 3B. This discovery led to Level 2 search of unit 3B. Some of the pieces from a
missing metal plate were not located until June of 2013. On about June 24, 2013, two
shanks were discovered in a mop closet in unit 4B. CO MacLean and OM P. James
created a template document of a missing metal plate and placed pieces of metal that
had been located on the template to determine whether parts of the missing metal
plates were still circulating in the HWDC. The template revealed that not all pieces of
the missing metal plates had been located.
[45] I will refer to the issues in dispute without setting out a detailed
description of the extensive submissions made by counsel over four hearing days. The
parties differed about whether there was one or two work refusals, namely whether
there was a work refusal based on the level of search and a different one based on the
refusal of the Employer to permit every CO to wear a vest. The parties also disagreed
about whether the MOL decision ordering the workers back to work addressed the vest
issue or whether it just dealt with the level of search. If the MOL order did not cover the
subject of vests, there is a dispute about whether the vest issue should be before me in
this proceeding since the Employer argued that the alleged failure of the MOL to deal
with that subject could have been appealed. Apart from these issues, there is the
overriding dispute about whether the right to refuse work applied to the COs in light of
the nature of the HWDC events. There is a dispute about whether the failure to permit
COs to wear a vest is contrary to Article 9 of the Collective Agreement and section
25(2)(h) of the OHSA and whether these alleged violations are relevant in assessing the
lawfulness of the work refusal. The parties disagree over whether the Employer
engaged in a lockout of the COs and whether the Employer decisions to rely on the “no
work, no pay” principle and to discipline COs for their conduct during the HWDC events
constitute a reprisal for the COs exercising their right to refuse unsafe work. As noted
previously, there is also a dispute as to whether I have the jurisdiction to deal with the
lockout and reprisal issues. Finally there is the issue of whether the Employer had just
cause to discipline the COs for their conduct during the HWDC events. The Employer
took the position that the discipline issues are moot and that I should exercise my
discretion not to deal with them. The Union disagreed with this position and requested
- 29 -
that I deal with the question of whether the Employer had just cause to discipline the
COs in the circumstances.
[46] In addition to OPSEU (Marshal et al), supra, and OPSEU (Iyamu), supra,
referred to in paragraph 5 of this decision, Employer counsel relied on the following
decisions: Ontario Public Service Employees Union (Metcalf/Mercer) and Ministry of the
Solicitor General & Correctional Services, GSB Nos. 926/96 and 927/96 (Dissanayake);
Canadian Gypsum Construction, [1978] OLRB Rep. Oct. 897; Auto Jobbers Warehouse
Ltd., [1981] OLRB Rep. December 1715; Hamilton-Wentworth Detention Centre, [2012]
OLRB Rep. November/December 1071; Hamilton-Wentworth Detention Centre, [2014]
O.O.H.S.A.D. No. 6 (OLRB); OPSEU v. Ministry of Correctional Services (Brookside
Youth Centre) 2002 CanLII 31871 (ON LRB); Hamilton-Wentworth Detention Centre,
[2009] O.O.H.S.A.D. No. 99 (OLRB); Kyle Dagenais v. Glencore Canada Corporation
Kidd Operations 2014 CanLII 18533 (ON LRB); Corrosion Service Ltd., [2014] OLRB
Rep. March/April 216; Sudbury Mine, Mill & Smelter Workers’ Union, Local 598
(C.A.W.), Office of Adjudication, Randall, Decision No. OHS 96-46; and, Re Baffin Inc.
and CUOE, 2002 CarswellOnt 9131 (Ellis).
[47] In addition to Sidbec Dosco Inc., supra, cited in paragraph 15 of this
decision, Union counsel relied on the following decisions during his submissions: Re
London (City) and Ontario (Ministry of Labour), 1986 CarswellOnt 5615 (Currie); Re
C.A.W., Local 707 and Ford Motor Co. of Canada, 1977 CarswellOnt 3355 (Shouldice);
Toronto Transit Commission, [1998] O.O.H.S.A.D. No. 186 (OLRB); Kitchener
Professional Fire Fighters Association, IAFF L457 2007 CanLII 29084 (ON LRB);
OPSEU (Anger et al) 2008 CanLII 70515 (ON GSB); Fab-Air Metal Industries 2005
CanLII 1713 (ON LRB); Orenda Aerospace Corporation 2004 CanLII 22055 (ON LRB);
Re United Steelworkers and International Nickel Co. of Canada (1972), 24 L.A.C. 51
(Weiler); Canadian Corps of Commissionaires (Hamilton), [1995] OLRB Rep. May 601;
Re North Central Plywoods (Division of Northwood Pulp and Paper Ltd.) and Pulp,
Paper and Woodworkers of Canada, Local 25 (1982), 8 L.A.C. (3) 406 (Bird); Re
Western Forest Products Inc. and USWA, Local 1-1937 (2015), 249 L.A.C. (4th) 402
(Coleman); Butler Metal Products, [1987] OLRB Rep. 1003; Graphite Speciality
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Products Ltd. 2008 CanLII 51233 (ON LRB); 1377041 Ontario Inc. (o.a Hotspot Auto
Parts) 2012 CanLII 72730 (On LRB); Canada (Correctional Service) v. Glen Brown and
Kevin Kunkel, 2013 OHSTC 20; Baffin Inc. and CUOE, 2002 CarswellOnt 9131 (Ellis);
Re Toronto (City) and CUPE, Local 79 (Charles) (2014), 241 L.A.C. (4th) 56 Herman);
C.E. Lummus Canada Ltd., [1983] OLRB Rep. Oct. 1688; Humpty Dumpty Foods
Limited, [1977] OLRB Rep. July 401; Plaza Fiberglass Manufacturing Limited, [1990]
OLRB Rep. Feb. 192; Hilton Villa Care Centre Ltd. and HEU, 2012 CarswellBC 3564
(BCLRB); Re Steel Equipment Co. and USWA, Local 3257 (1964), 14 L.A.C. 356
(Reville); and, OLBEU (Xanthopoulos) and Liquor Control Board of Ontario (1990), GSB
No. 1321/89 (Fisher).
[48] I will deal first with Employer counsel’s submission that I do not have the
jurisdiction to address some of the matters raised by the Union in this case. Employer
counsel submitted that there was only one work stoppage and that the wording in the
2012 Memorandum gives me jurisdiction to address one work refusal, but not a second
work refusal over vests. More significantly, Employer counsel also submitted that
paragraphs 8 and 9 of the 2012 Memorandum identify precisely the issues that are
before me and that paragraph 13 sets out the issues that are not before me. He
submitted that the terms of paragraph 13 preclude the Union from pursuing the reprisal
and lock-out issues.
[49] Paragraphs 8 and 9 provide me with the authority to deal with two issues
that arose from the work refusal, namely the issues of “no work, no pay” and discipline.
The questions for me to decide are essentially whether it was proper for the Employer
not to pay the COs who did not work or who refused a direction to work and whether the
Employer had just cause to discipline the COs for not working and for any other
misconduct. The wording in paragraphs 8 and 9 give me a broad authority to deal with
these two questions. What the parties intended by paragraph 13 is less clear. For
convenience, I will set out this paragraph again.
13. The Parties agree that apart from the specific terms of this agreement and
the specific processes set out herein, that they will not pursue, file or support any proceeding, appeal, and/or grievance under any statute, in any forum associated with the HWDC events. Without limiting the generality of the foregoing, the
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Union, responding Parties and affected employees shall not file, pursue or support any claim, demand, action or proceeding under the Occupational Health
& Safety Act, the Labour Relations Act, the Crown Employees Collective Bargaining Act, and the Employment Standards Act, including an appeal of a
Ministry of Labour Order, a reprisal application or an unlawful lockout application
pursuant to section 101 of the Labour Relations Act.
The questions that arise from the Employer’s position are whether the Union is
precluded from raising the reprisal and lock-out issues in this proceeding when dealing
with the specific issues of “no work, no pay” and discipline, or whether paragraph 13
merely precludes the Union from pursuing a reprisal application or an unlawful lockout
application in another forum so as to avoid a multiplicity of proceedings. After giving
this issue much thought, I am not satisfied that paragraph 13 along with the other
language in the 2012 Memorandum precludes the Union from raising the reprisal and
lock-out issues in this proceeding. Given the importance of health and safety and the
issues identified in paragraphs 8 and 9, I would have expected that any intention to limit
my jurisdiction so as to preclude me from addressing these issues would have been
expressed in clearer terms. Therefore, in dealing with the matters referred to me by
paragraphs 8 and 9 of the 2012 Memorandum, I will also deal with the reprisal and lock-
out issues raised by the Union.
[50] As I noted previously, the central question for me to determine in order to
resolve the “no work no pay” and discipline issues is whether section 43 of the OHSA
applied to the COs in the circumstances of the HWDC events. Another way to phrase
the central question is to ask whether the COs were engaged in legally protected
activity when they refused work. Whether the MOL Inspector was correct when he
ultimately determined that the COs were not entitled to refuse work is of no relevance to
me when deciding this central question. Whether the Inspector’s order covered the vest
issue, whether there were one or two work refusals and whether it is significant that
there was no stage 1 meeting on the vest issue are all questions that are essentially
irrelevant if the section 43 right to refuse work did not apply to the COs in the
circumstances. Before turning to what I characterize as the central question, I will make
some observations on some of these matters given the time spent on these issues by
the parties.
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[51] I understand the Union’s position to be that the COs initially refused to
work because of the level of search, but that from August 15, 2012, their refusal was
motivated only or at least primarily by the vest issue. The evidence suggests otherwise.
Although I have no doubt that the wearing of vests was an important health and safety
issue for the COs, I am satisfied that the refusal of the Employer to permit the COs to
wear vests was not the only reason and likely not the primary reason for the duration of
the work refusal. When the worker representatives canvassed the COs after the
Inspector’s order and told them later in the day on August 15, 2012, that management
would soon start to meet with them individually to tell them about “no work, no pay” and
possible discipline, the COs took the position that they would not go to their posts
unless they could wear their vests and a Level 2 search of the institution was
conducted. During the morning of August 16, 2012, Union stewards confirmed to CO
MacLean that the COs were refusing to work because all of them were not permitted to
wear their vests, but also because they wanted a Level 2 search. The COs that were
assigned to units 4A and 4B did not attend to their posts at all even though they would
be permitted to wear their vests until the Level 2 search of these units was completed.
This suggests that for these COs at least that the level of search was an important
reason for refusing work. When COs Hoye and Smith asked questions of DS Bradley
on August 22, 2012, they asked not only about vests, but also about the level of search.
And finally, once managers took over the operation of the HWDC starting on August 15,
2012, the reality is that the COs would not likely discontinue their work refusal until the
Employer agreed to a high level of search of the entire institution. It is these
considerations that lead me to observe that the issue of vests at best was only one of
the reasons for the work refusal and that it is very unlikely that a resolution of that issue
alone would have resulted in the COs returning to work.
[52] The Union witnesses and, through effective cross-examination by Union
counsel, virtually each Employer witness expressed the view that the Inspector’s order
did not address the wearing of vests. Nonetheless, Employer counsel’s submission that
the Inspector considered the vest issue in making his order is entirely plausible. The
Inspector was present at the HWDC for a considerable amount of time investigating the
work refusal. The initial task of the Inspectors in this instance was not to decide
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whether the COs were endangered in the circumstances, but rather to decide whether
the COs had the right to refuse work. While at the institution on August 15, 2012, prior
to issuing his order, Inspector Parco heard management state its positions on the level
of search, the scope of the search and the wearing of vests. In essence, management
indicated that vests would only be worn as provided for in the WSP. The subject of
vests was raised by COs during a meeting with the Inspectors in the courtyard. Hearing
the concerns of COs on the vest issue did not alter the Inspectors comments to the COs
to the effect that management was following its procedures and that the COs did not
have the right to refuse work. Prior to issuing his final order then, Inspector Parco had
heard that the matters influencing the COs in their decision to refuse work were the
level of search and the refusal of the Employer to permit all COs to wear vests. In the
FVR, Inspector Parco wrote that “The reasons for refusing work did not meet the
criteria…” of the OHSA which suggests that he took into account more than one reason
offered by the COs for refusing work. In my view, unless there is a clear indication to
the contrary, it is logical to expect that an Inspector would consider all of the reasons
advanced by the COs and the Union for engaging in a work refusal before issuing his or
her determination on whether the COs have a right to refuse work in the circumstances.
Inspector Boccinfuso’s response late in the day on August 15, 2012, to CO Smith’s
inquiry about vests does not amount to clear indication to the contrary, particularly since
it was Inspector Parco that wrote the order. I simply observe therefore, that it is quite
possible that the Inspector’s order covered the issue of vests even if the parties did not
think it did and even if the issue had not been addressed in the internal responsibility
system or at a stage 1 meeting.
[53] I will make one final observation. The Union takes the position that it
could not appeal the Inspector’s order because the order did not deal with the wearing
of vests. Even assuming that the order did not address the vest issue, the Union and
the workers were still confronted with an order directing the workers to return to work.
Rather than simply ignoring the order, it appears to me that the COs had two options.
The COs could comply with the order or the Union could appeal the order on the basis
that it was not responsive to the situation because the level of search was no longer an
issue and that the Inspector did not address the real reason for the work refusal, namely
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the failure on the part of the Employer to permit all of the COs to wear vests. The
Employer’s position that the Union could have appealed the refusal of the Inspector to
make an order that addressed the vest issue may have some merit. As Employer
counsel pointed out, section 61(5) of the OHSA provides that an order includes “the
refusal to make an order or decision by the inspector”. CO MacLean contacted the
MOL during the afternoon of August 15, 2012, because in essence she wanted the MOL
to address the vest issue. The MOLs failure to respond to her request could be
interpreted as a refusal to make a decision. The interchange between CO Smith and
Inspector Boccinfuso and the Inspector’s comments about vests could also be
interpreted as a refusal to make an order or decision on the wearing of vests. I do not
agree with the Employer’s position that the Union’s failure to appeal the Inspector’s
order or his refusal to make an order on the wearing of vests precludes the Union from
raising the vest issue in this proceeding. However, I simply observe that the Union’s
failure to appeal the Inspector’s order may be some indication that the Union
appreciated that the work refusal was based more on the level of search and less on the
failure of the Employer to permit all COs to wear vests.
[54] I turn now to address the central question in this case and that is whether
section 43 of the OHSA applied to the COs in the circumstances of the HWDC events.
As noted earlier, the initial parts of section 43 provide that the right to refuse work does
not apply to certain categories of workers and these categories include COs, police
officers and firefighters. These workers do not have the right to refuse work when the
circumstances described in clauses (3) (a), (b), (b.1) or (c) are inherent in the worker’s
employment or are normal conditions of that employment or when the worker’s refusal
to work would likely endanger the life, health or safety of another person. There are a
number of decisions that have considered the application of section 43 to COs. I will
refer to two of them.
[55] In Maplehurst Detention Centre [1994] O.O.H.S.A.D. No. 21, Adjudicator
Blair had before him a work refusal under section 43 by a CO who asserted that it was
unsafe for him to be locked in the yard with potentially violent inmates. An Inspector
had concluded that the CO did not have the right to refuse this work. The issue before
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the Adjudicator was whether the contact with inmates in the yard was inherent in or a
normal condition of the CO’s work. He commented on the “inherent” factor as follows:
12. The focus of the argument by the parties was on whether the circumstance which troubled Mr. Chroust was inherent in his work. The position of the
Employer and the Ministry of Labour was that the kind of face to face contact with inmates which occurred in the yard at the material time was inherent in the work of a correctional officer. 13. The Union, for its part, resists an interpretation of the word “inherent” which
would permit a finding that any circumstance which involves a failure to take appropriate and reasonable precautions is inherent. This argument is attractive. To take an easy example, if Mr. Chroust refused to perform yard duty because an important piece of safety equipment was malfunctioning (for example, if the emergency alarm buttons were not working) it is hard to see how that is inherent
in his work. 14. By contrast, (and this is my example, not the Union’s) it is not hard to see how the circumstances of a building being on fire is inherent in the work of a firefighter. Applying the analysis of the Union to the firefighting analogy, can it be said that a firefighter could not refuse if an important piece of safety equipment
was malfunctioning? Malfunctioning equipment may not be inherent in the work of a firefighter, although fire is. Of course, in this example one would also have to consider whether the refusal would directly endanger another person (paragraph 43(1)(b)). There are difficult issues here, and I do not wish to suggest that by using firefighters as an example I am purporting to decide any of
those issues. For reasons which will become apparent, I do not need to do so in this case. [56] Adjudicator Blair then went on to deal with the “normal condition of
employment test”. He commented on that test and additional matters as follows:
16. I find that at the time of the refusal, the circumstance which gave rise to it was a normal condition of Mr. Chroust’s employment. It is clear from the use of the word “or” in paragraph 43(1)(a) that the “normal condition of employment” test is distinct from the “inherent” test. In my view, the Legislature has made it
clear that a person in the position of Mr. Chroust may not use the work refusal procedure to call into question the existing and established practices of the institution. This conclusion sounds more onerous for workers than it in fact is. Had Mr. Chroust been refusing to work because of (for example) a malfunctioning alarm button or radio, that would not have been a normal
condition of his employment any more than it would have been inherent. Clearly, it is neither, and the right to refuse would have existed unless paragraph 43(1)(b) applied. Also it means that Mr. Chroust and other correctional officers cannot refuse to perform work that is a part of their established routine, unless some circumstance exits which departs from that established norm. It does not mean
that an existing practice cannot be called into question as being unsafe. Indeed, as will be seen, I have found that the circumstances which prevailed in the yard at the time of the work refusal were unsafe and in violation of the Act.
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17. …The only way that I can make any sense at all of the language is to read “normal condition of …employment” as referring to the established and prevailing working conditions. On that test, and on the facts before me, I am compelled to conclude that the conditions to which Mr. Chroust objected (quite rightly, in my view) were at the time a normal condition of his employment.
18. As a matter of procedure I find that the section 43 mechanism was not available to Mr. Chroust. 19. The Inspector, then, perhaps for reasons different than mine, quite properly
concluded that his task was not to decide under section 43(8) whether the circumstances which led to the work refusal were “likely to endanger” Mr. Chroust or another worker. 20. In my view, however, when an inspector concludes that a refusing worker is not entitled to refuse under section 43 because its application has been removed
by subsection 43(1), that conclusion should only serve to focus his or her inquiry – it does not end it. At that point what began as a work refusal investigation becomes an investigation of a complaint pursuant to the inspector’s general powers. And in circumstances where for reasons of public policy the right of a worker to refuse has been restricted, there are compelling reasons for inspectors
to expedite the investigation of the worker’s concern, and to make appropriate orders where violations are found.
[57] The other decision that I will refer to also involves a work refusal by COs
at the HWDC. This decision of OLRB Alternate Chair (“AC”) B. McLean was released
some months after the HWDC events had ended. The events giving rise to the section
61 application under the OHSA occurred over the weekend of March 23-25, 2007. The
hearing of the application took almost five years to complete.
[58] The triggering event in Hamilton-Wentworth Detention Centre, supra, was
an outside telephone call to OM Gluchowski at about 6:00 p.m. on Friday, March 23,
2007, in which the caller indicated that there was a zip gun (a homemade prison
weapon) in the institution. Management determined that a Level 2 search would be
conducted, but CO Smith and the other COs wanted a Level 4 search. Once CO Smith
had indicated that he had a health and safety concern, an OM contacted the MOL
regarding the refusal to do a Level 2 search. The work refusal began at about 8:30 p.m.
when COs began refusing to do clock rounds and searches. On his second telephone
call to the HWDC around 9:20 p.m., Inspector Kariam advised management that the
COs did not have the right to refuse work in the circumstances and that the Union could
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file a complaint instead of refusing work. Inspector Kariam also spoke to CO Smith and
gave him the same message. After the call with Inspector Kariam, the work refusal
expanded. The COs on the following dayshift refused to work after CO Smith explained
what had occurred the previous evening. Management began staffing the institution
with managers. Inspector Kariam attended the institution during the late morning on
Saturday and he provided the parties with a FVR that read as follows:
THIS SITUATION BEGAN WHEN THE INSTITUTION WAS NOTIFIED BY AN
ANONYMOUS EXTERNAL PARTY THAT A WEAPON WAS IN THE WORKPLACE. CORRECTIONAL OFFICERS ARE REFUSING TO CONDUCT AN INSTITUTIONAL SEARCH [CLOCK ROUNDS] IN THE DORMS BECAUSE
THEY DISAGREE WITH THE DECISION MADE BY THE EMPLOYER REGARDING THE THREAT ASSESSMENT LEVEL. CORRECTIONAL OFFICERS WANT A LEVEL FOUR USUED WHILE THE EMPLOYER HAS IMPLIMENTED A LEVEL TWO.
DECISION:
THIS REASON TO REFUSE DOES NOT FALL UNDER THE SCOPE OF SECTION 43(3) OF THE OCCUPATIONAL HEALTH AND SAFETY ACT.
CONDUCTING A SEARCH [ROUNDS], WITH THE POSSIBILITY THAT A WEAPON MAY BE FOUND IN THE WORKPLACE, IS A CONDITION INHERENT IN THE WORK OF A CORRECTIONAL OFFICER.
THERE IS A PROCEDURE IN PLACE OUTLINING MEASURE TO PROTECT THESE WORKERS. IF THERE IS A DISPUTE IN TERMS OF THE APPLICATION AND INTERPRETATION OF THESE PROCEDURES THEN THE JOINT HEALTH AND SAFETY COMMITTEE MUST BE INVOLVED.
IF THIS ISSUE REMAINS OUTSTANDING THEN A COMPLAINT MAY BE FILED WITH THE MINISTRY OF LABOUR. INFORMATION PROVIDED: “THREAT LEVEL ASSESSMENT AND WEAPONS SEARCH PROTOCOL” DATED OCTOBER 2005.
CO Smith read a statement prepared by the Inspector to the COs advising them that
they did not have the right to refuse work. The COs continued their work refusal until
about 6:00 p.m. on Sunday, March 25, 2007, when the parties entered into a return to
work agreement. That agreement provided for a search of the institution and for the
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COs to return to work. The Employer retained the right to discipline, but not the right to
discharge a CO.
[59] In response to the Union’s assertion that the Employer and Inspector
Kariam did not properly comply with the steps in section 43, the Employer took the
position that section 43 did not apply to the COs because the circumstances
complained of were “inherent in the worker’s work and a normal condition of the
workers’ employment”. The Board indicated that the main issue before it was whether
section 43 of the OHSA applied to COs in the circumstances. It reviewed some
decisions that dealt with this issue, including Maplehurst Detention Centre, supra. The
Board then made the following comments regarding the applicability of section 43 to
COs:
66. The result of the exemptions contained in sections 43(1) and (2) for those workers described therein is a stark one. Those employees described in section
43(2) are subject to a limited right to refuse work even if the work is dangerous, and even if the employer is violating the Act and its regulations. There is no doubt that the health and safety of workers in these jobs is given less protection than workers in other jobs. The reason for this is that the workers in these jobs have dangerous jobs and/or the protection of other people (members of the
public, other workers etc.) is dependent on these jobs being done despite the risks. The reason for the Legislature’s choice in this regard is quite obvious. It does not make sense that a police officer or a firefighter could engage in a work refusal where the dangerous situation is an inherent part of the job. Moreover, it does not make sense that such a worker could engage in a work refusal even
where the situation is not an inherent part of the job if the effect is to endanger the life, health and safety of someone else. Finally, it hardly seems possible that firefighters or other enumerated workers found within a dangerous situation could refuse work while the parties waited for a Ministry of Labour Inspector to conduct a section 43 investigation in order to declare if the risk is relevant in the
firefighters’ duty. It appears much more likely employees in those special categories of employees are more or less on their own in deciding whether to refuse to work. They may refuse, but if the dangerous circumstances were inherent in their work then they may suffer employment consequences. On the other hand, if they were right, then they will not. I do not mince words: the
Legislature would rather a worker in this special category of professions have different health and safety rights than have a member of the public or someone under their care be hurt. 67. The reason I state this fact so starkly is that, with respect, it is fact glossed
somewhat over in many of the cases that have reviewed these issues. These exemptions are important for the maintenance of the public’s health and safety and for the health and safety of inmates housed in correctional facilities. I note
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that none of the cases discuss the reasons for these exemptions in any detail. In my view it is appropriate to do so because the reason for the limitations on these classes of employees is plain and important to interpreting section 43. These employees, firefighters, police officers and correctional officers, are charged with the protection of others and their jobs are inherently dangerous. If they refuse
work, they are putting lives at risk. 68. COs (and other workers set out in section 43(2)(c) and (d)) do not appear at first blush to have the same responsibility as police officers and firefighters and other classes of employees with a limited refusal right. However, their duties are
significant both to the inmates and the general public. Inmates depend on COs for all of their needs, such as their medications, meals and other life necessities. They also depend on the COs to provide protection for them from other inmates and so that they do not harm themselves.
69. As a result, it seems unlikely the Legislature contemplated circumstances except in the rarest of cases, where all COs would refuse to perform work. A work refusal, particularly a general work refusal, for these classes of employees, must almost be by necessity a rare thing. That despite the fact that the work environment in which correctional officers work, is a dangerous one, as was aptly
described …in Re Maplehurst Detention Centre, …at paragraph 3: It is beyond dispute that at any given time there may be individuals incarcerated there who could reasonably be expected to become violent, and that steps must continually be taken to ensure that the correctional
officers and the inmates under the care and control of the institution are not subject to undue risk. That is the nature of maximum security correctional facilities.
[60] In addressing the Union’s submission that the presence of a gun in the
institution presented risks that were not “inherent” in the work of COs, the Board
referenced the comments of Adjudicator Blair when he wrote that “…correctional
officers cannot refuse to perform work that is part of their established routine, unless
some circumstances exist which departs from that established norm”, and then
continued with the analysis of this issue as follows:
74. There is no doubt that the presence of a zip gun in the workplace or even the
allegation that there is a zip gun in the workplace is an unusual occurrence. In fact, there was no suggestion that a zip gun had ever been found in any Ontario correctional institution. Nor did any witness suggest that there had even been the specific threat of a zip gun in an Ontario correctional institution.
75. That being said, the possibility of the presence of homemade jail weapons, while not a routine matter by any means, is a regular part of the corrections officer’s workplace. The potential presence of those kinds of weapons is one of
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the main reasons for the existence of the weapons search policy, the application of which is the main thrust of the dispute behind these applications. It is notable that the potential for ballistic weapons is specifically identified in the policy. It is also notable that some of the union’s witnesses, who are active COs, had viewed images and descriptions of “zip guns” in online research on sites devoted to
correctional officers. 76. …what faced the COs was the threat, made by an anonymous outside caller, that was not so dissimilar than the kind of weapons that COs potentially face every day they are at work. I do not wish to diminish the treat in any way, but
COs have dangerous jobs and working in circumstances where such a weapon may be present is part and parcel of that job. … 78. In my view, therefore, carrying out searches in inmate living areas and cells with the possibility that there might be a homemade weapon, including a
homemade “gun”, located there is a normal part of a correctional officer’s job. That is so as long as the searches have the appropriate equipment. As Adjudicator Cadieux stated in Stone and Canada (Correctional Service), [2002] C.L.C.A.O.D. No. 27: 46. The risk of being assaulted with a weapon, any type of weapon,
whether or not it has been fabricated from material obtained from one of the shops is part and parcel of the job of a correctional officer. That risk is however mitigated by the numerous controls, security policies and procedures put in place by Correctional Service Canada. The Springhill Institution Searching Plan is an example of such a procedure, and an
effective one which, in passing, has been activated and resulted in the lock down of the Institution prior to Mr. Stone’s refusal to work. The ongoing interaction with the offenders, i.e. dynamic security is another example of the type of security measure used by the staff to identify potential threatening situations. Preventive security is another aspect of
the overall security system in place in a medium security institution. The overall security system in such penitentiaries necessarily includes a certain amount of static security. Much of the debate in this case centers on whether the absence of staff at port #20 increases, in the end, the risk of assault on correctional officers to the point where the staff is in danger
as defined in the Code. … 51. As it stands today, the right to refuse provisions in the Code are not meant to address long standing problems such as the problem identified by Mr. Stone in the instant case. The right to refuse in the Code remains
an emergency measure to deal with situations where one can reasonably expect the employee to be injured when exposed to the hazard, condition or activity. However, it cannot be a danger that is inherent to the employee’s work or is a normal condition of employment. This statement alone is fraught with consequences for correctional officers. Given that
the likelihood of encountering violence is a normal condition of employment of the job of correctional officers, who are specifically trained to deal with these situations, it is very difficult to envisage a situation, in
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that environment, where a refusal to work for violence could be justified other than in a specific and exceptional circumstance. … 80. Finally, to use the words of Adjudicator Blair, the COs “may not use the work
refusal procedure to call into question the existing and established practices of the institution”. In my view the application of the weapons search policy and the process through which management decides which level of search to engage in is part of the existing and established practices of the HWDC. There is no evidence, as in Maplehurst, that the institution had a established practice of
dealing with a threat of a zip gun in the jail in a particular way. In the absence of that practice and in the circumstances of this case, the management of which search level to apply (even if it was changed) may not be challenged through a work refusal. …
84. For the foregoing reasons, …the COs did not have the right to refuse work in the circumstances which existed at the jail on the weekend of March 23, 2007. The circumstances that existed were a normal part of the workers’ employment and was inherent in the workers’ work.
[61] The Union’s request for reconsideration of the above decision was
dismissed by AC McLean for the reasons set out in Hamilton-Wentworth Detention
Centre [2014] O.O.H.S.A.D. No. 6.
[62] I agree and adopt AC McLean’s interpretation of section 43 of the OHSA,
his description about the nature of and the reasons for the limited right that COs have to
refuse work and how he applied the relevant considerations to the facts before him to
ultimately determine that the COs were not entitled to refuse work as a way to respond
to the dangers presented by the possible existence of a weapon in the workplace.
When applying the relevant considerations to the dangers or hazards that gave rise to
the work refusal at the HWDC from August 14 until September 11, 2012, I also come to
the conclusion that the COs did not have the right to refuse work.
[63] The specific danger confronting the COs at the relevant time related to a
missing metal plate from the unit 4B hallway. This was the third metal plate that had
gone missing in a four month period and searches had failed to locate the two other
metal plates. There was no dispute that a piece or pieces of a metal plate could be
fashioned into a homemade weapon or weapons (shanks) and that it was possible that
these weapons or the metal plate could migrate throughout the HWDC. The evidence
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in this case and, apparently in Hamilton-Wentworth Detention Centre, supra, as well, is
that it is not uncommon for inmates to construct and conceal homemade weapons at
the HWDC. AC McLean noted that “the presence of homemade jail weapons…is a
regular part of a corrections officer’s workplace” and in a similar vein Adjudicator
Cadieux commented that “the risk of being assaulted with a weapon …is part and parcel
of the job of a correctional officer.” The workplace of a CO is a dangerous environment.
In my view, the danger to COs as of result of the presence of shanks made from a metal
plate are inherent in a COs work at the HWDC. It was argued that the information from
an inmate on August 4, 2012, that eight shanks had been made from a missing metal
plate made the danger in this case specific or more concrete, and not simply inherent. I
disagree. If anything, this evidence simply confirms that these types of items are not
uncommon at the HWDC and that the danger generated by their presence is inherent in
a COs work. As AC McLean also noted, it is because the presence of handmade
weapons are inherent to a COs workplace that there is a specific policy that deals with
searching for weapons.
[64] The COs refused to work not only because of the danger created by the
missing metal plate, but more directly because of management’s planned response to
the threat. Given that unit 4B had been searched, the Employer’s ultimate decision
under the WSP to deal with the threat posed by the missing metal plate was to perform
a Level 2 search of units 4A and 4C. Only COs working in these units and on the
search team would be permitted to wear their vests. The COs wanted a Level 2 search
of the entire institution and as of August 15, 2012, every COs wanted to wear a vest.
As noted previously, the WSP has been in effect for some time and it governs such
matters as the level and scope a search, and when a CO can wear a vest. The policy
and practice provide that management ultimately decides the level and scope of any
search after a threat level assessment has been conducted. There is no evidence to
establish that the usual practice when searching for weapons is to search the entire
institution. Indeed, as noted previously, the evidence is that a search is usually limited
to the locale where the weapon is most likely to be found. I can understand why CO
Hoye was strongly advocating for an institution wide search on August 14, 2012, given
that such a search was conducted when a metal plate was discovered missing on
- 43 -
August 1, 2012. However, an institution wide search appears to be a rare event and,
after considering the relevant criteria, management elected to perform only a Level 2
search of units 4A and 4C. It is also clear from the policy and practice that COs who do
not work in the area being searched or who are not on the search team do not wear
vests. Prior to the HWDC events, COs working at posts outside of the search area
would not wear their vests, even though the migration of a weapon is always a
possibility and even though they might have to respond to a code that would bring them
into an area being searched. The COs at the HWDC were aware of the practice related
to the wearing of vests. This is not a situation where COs working outside of the area of
search are being deprived of protective equipment that is normally provided to them
because the practice and the WSP dictate that vests are not worn in such
circumstances. The general practice and the terms of the WSP relating to the level and
scope of a search and the wearing of vests constitute part of the normal conditions of
employment for COs at the HWDC. To the extent that the work refusal was related to
the Employer’s failure to permit all COs to wear vests, the work refusal was an attempt
to alter the established practice on the wearing of vests. As Adjudicator Blair noted,
COs “may not use the work refusal procedure to call into question the existing and
established practices of the institution”.
[65] Even if the right to refuse work under section 43 of the OHSA applied to
these COs, it is not clear to me how a general work refusal can be justified on the basis
that a CO without a vest might have to respond to a code in an area being searched. In
my view, a refusal cannot be justified on the basis of an event that might never occur.
The chances of a code occurring in an area being searched are quite remote. At best,
the justification might be used by a CO at work to refuse to respond to a code in the
search area, but cannot be used to refuse to attend work at all in the unlikely event that
the CO might have to respond to a code. Even if there was a code to respond to an
area being searched, the evidence indicates the danger to a CO responding to such a
code without a vest would be minimal given that the inmates would be locked down and
there would be extra staff in the area.
- 44 -
[66] Apart from the remaining issues to be determined, these are the
considerations that lead me to conclude that the COs did not have the right to refuse
work under section 43 of the OHSA in the circumstances of the HWDC events. These
circumstances were either inherent in their work or a normal condition of their
employment. The conclusion that the COs were not entitled to refuse work between
August 14 and September 11, 2012, goes a long way to resolving the two key issues
before me as described in paragraphs 8 and 9 of the 2012 Memorandum.
[67] The Union took the position that the failure of the Employer to permit the
COs to wear vests contravened article 9 of the Collective agreement as well as section
25(2)(h) of the OHSA. These provisions read as follows:
ARTICLE 9 – HEALTH AND SAFETY AND VIDEO DISPLAY TERMINALS
9.1 The Employer shall continue to make reasonable provisions for the safety and health of its employees during the hours of their employment. It is agreed
that both the Employer and the Union shall co-operate to the fullest extent possible in the prevention of accidents and in the reasonable promotion of safety and health of all employees. 9.2 The Employer shall provide safety equipment and protective clothing where
it requires that such shall be worn by its employees Duties of employers 25(2) Without limiting the strict duty imposed by section (1), an employer shall, …
(h) take every precaution reasonable in the circumstances for the protection of a worker; [68] Each of these provisions obliges an employer to take reasonable
precautions for the health and safety of its employees. Even if the Employer’s failure to
permit all COs to wear vests contravenes these provisions, it does not alter the fact that
the COs did not have the right to refuse work. The question of whether a CO can refuse
unsafe work must be assessed under section 43 of the OHSA, and not on the basis of
the general arbitral principle that an employee need not obey an unreasonable order.
As AC McLean noted, COs have a limited right to refuse work “even if the employer is
violating the Act and its regulations.” And I would add that this is also the case if the
Employer is contravening the Collective Agreement. I agree with the comments of
- 45 -
Adjudicator Blair and AC McLean that an Inspector investigating a work refusal should
also investigate whether the concerns of the workers might disclose a violation of an
employer’s obligations under the OHSA. In this instance, after determining that the COs
did not have the right to refuse, the Inspectors did not address whether the Employer’s
decision on the level of search and its decision not to permit all COs to wear vests
constituted a failure by the Employer to take every precaution reasonable in the
circumstances for the protection of the worker. The question as to whether the
Employer failed to take every precaution for the protection of the COs when it did not
permit all COs to wear vests is an interesting one, but it is not a question for me to
answer. That question is now academic given that a CO at the HWDC can now wear a
vest during the course of his or her normal duties and when performing Level 1 search.
In any event, I agree with AC McLean that some focus by the Inspectors on the broader
health and safety concerns of workers may have contributed to a faster and more
satisfactory resolution of the issues that led to the work refusal.
[69] I turn now to deal with the reprisal and lock-out issues. A determination
on one or both of these issues that favours the Union would have an impact on the “no
work, no pay” and discipline issues. After considering the submissions on these issues,
I am satisfied that the Employer’s conduct that negatively impacted the COs did not
constitute a reprisal and that the Employer did not lock-out the COs.
[70] The Union took the position that the decisions to discipline and to not pay
COs in the circumstances of the HWDC events amounted to a reprisal by the Employer
since these actions constituted penalties imposed on them because they acted in
compliance with or sought the enforcement of the OHSA. Section 50 (1) of the OHSA
provides as follows:
No discipline, dismissal, etc., by employer
50 (1) No employer or person acting on behalf of an employer shall, (a) dismiss or threaten to dismiss a worker;
(b) discipline or suspend or threaten to discipline or suspend a worker; (c) impose any penalty upon a worker;
- 46 -
(d) intimidate or coerce a worker, because the worker has acted in compliance with this Act or the regulations or an order made thereunder, has sought the enforcement of this Act or the regulations or has given evidence in a proceeding in respect of the enforcement of this Act or the regulations or
in an inquest under the Coroners Act. [71] The onus is on the Employer to prove that it did not breach section 50(1).
The question before me on the reprisal issue is whether the Employer has established
that its actions against the COs were not undertaken at least in part because the COs
were engaged in legally protected activity. In addressing this matter, I have considered
Union counsel’s submission that the Employer has not provided the evidence necessary
to discharge its onus. In my view, when considering all of the relevant evidence, I am
satisfied that the Employer applied the “no work, no pay” principle and disciplined the
COs for reasons that had nothing to do with whether the COs acted in compliance with
or sought the enforcement of the OHSA. The Employer did not take any action against
the COs for refusing work on August 14 and for refusing to work most of the day shifts
on August 15, 2012. It was only later in the afternoon on August 15, 2012, once the
Inspector determined that the COs did not have the right to refuse and ordered them
back to work that the Employer advised the COs of the consequences of their
continuing the work refusal. It essentially advised them that they would not be paid and
they would be subject to discipline if they did not attend to their posts and resume their
normal duties. The only reason the Employer followed through with no pay and
discipline for the COs was because the COs did not return to work when instructed to
do so and because of its conclusion that their refusal to return to work was without
lawful justification. I am also satisfied that the Employer gave the six COs an additional
day of suspension because of its view that they had engaged in some misconduct that
warranted discipline and not because of an anti-health and safety animus.
[72] The Labour Relation Act (“LRA”) defines lock-out as follows:
“lock-out” includes the closing of a place of employment, a suspension of work or a refusal by an employer to continue to employ a number of employees, with a
view to compel or induce employees, or to aid another employer to compel or induce that employer’s employees, to refrain from exercising any rights or privileges under this Act or to agree to provisions or changes in provisions
- 47 -
respecting terms or conditions of employment or the rights, privileges or duties of the employer, an employer’s organization, the trade union, or the employees. [73] The Union took the position that the Employer, by not permitting all COs to
attend their posts with their vests, was attempting to compel or induce the COs to alter
the terms and conditions of their employment. One normally thinks of a lock-out as
some action by the Employer that limits the work available to workers for an improper
purpose. It is difficult to see how the suspension of work during the HWDC events was
an act by the Employer, given that the work stoppage was initiated by the COs and
continued when the Employer had directed them to return to work. In any event, as the
lock-out jurisprudence indicates, it is the purpose for the act of limiting work that is
important. It was not the purpose of the Employer to compel or induce the COs in the
manner described in the lock-out definition. Contrary to the Union’s submission, the
Employer was not exerting economic pressure on the COs in an attempt to get them
agree to an alteration in their terms and conditions of COs when it did not permit all of
them to wear vests. As noted previously, the Employer’s position on the wearing of
vests was consistent with the COs terms and conditions of employment as reflected in
practice and the WSP. The absence of the act of suspending work and the absence of
a prohibited motive by the Employer leads to the conclusion that the Employer did not
lock-out the COs during the HWDC events.
[74] And finally I will briefly address the subject of discipline. In October 2012,
Superintendent Morris sent the majority COs an allegation letter in which it was alleged
that the CO did not work scheduled hours and/or refused to follow orders from a
supervisor. The CO was given the opportunity to respond to the allegation in writing.
Given the nature of the infraction and the fact that she was limited to a two-day
suspension by the terms of the 2012 Memorandum, Superintendent Morris issued a
one-day suspension to the majority of COs that participated in the work refusal. Ms.
Scrivano handled the disciplinary process for six of the COs. She held separate
allegation meetings with each of them and ultimately decided to issue each of them a
two-day suspension. The reasons for the suspensions are set out in each letter of
suspension.
- 48 -
[75] As noted previously, the Employer took the position that the discipline
issue is moot. The disciplinary letters were intended only for placing the suspensions
on the disciplinary records of the COs; no pay was lost due to the suspensions. The
last person disciplined for the HWDC events was CO Hoye on February 6, 2013. By the
time final argument commenced in this matter, the one and two-day suspensions issued
to the COs for the HWDC events had been removed from each of their disciplinary
records by operation of the sunset clause.
[76] In arguing that I should address the individual discipline issues, the Union
took the position that the process the Employer used to assess the appropriate
discipline was flawed. It was noted in particular that the Employer did not consider the
individual circumstances of each CO and that it did not take into account such matters
as a discipline free record, seniority and any mitigating circumstances.
[77] The only remedy available to each CO at this stage would be a
declaration. Even if the matter of discipline is not moot, the exercise of determining
whether the Employer had just cause to issue the two-day suspension to six COs or the
one-day suspension to the remaining COs who participated in the work refusal almost
five years ago is not one that would now serve the interests of the grievors, the Union or
the Employer. However, in general terms, I note the following. The failure of a CO to
report to his or her post in the absence of a lawful excuse can be an offence deserving
of some discipline and the discipline could include a suspension. As I found earlier, the
COs in this case did not have a lawful excuse to refuse work. The Employer would also
be entitled to deal with the misconduct of a CO during the work refusal by imposing
discipline. Many of the factors the Union raised are often relied upon to challenge the
penalty in a typical discipline case. But this matter is far from a typical discipline case
given the unlawful nature of the mass refusal to work by COs. Each CO was informed
of the allegation(s) against him or her and was provided with an opportunity to respond
to the allegation(s). In the context of a mass work refusal and the agreement of the
parties on discipline at paragraph 8 of the 2012 Memorandum, I am not prepared to
conclude that the process used by the Employer or the nature of its considerations for
- 49 -
determining the appropriate penalty for each CO are matters that could be relied upon
to successfully challenge the discipline.
[78] In summary, I have found that the section 43 right to refuse work in the
OHSA did not apply to the COs at the HWDC because the dangerous circumstances
that gave rise to the work refusal during the relevant period were inherent in a CO’s
work or a normal condition of a CO’s employment. I have also found that the actions of
the Employer and its motives do not establish that there was a lock-out or a reprisal by
the Employer against the COs for engaging in legally protected activity. Having regard
to paragraphs 8 and 9 of the 2012 Memorandum, I find that the Employer was not
required to pay the salary of COs who did not perform their duties during the HWDC
events and that there was a basis for imposing discipline on COs for refusing to work
when there was no lawful basis for their refusal to work.
Dated at Toronto, Ontario this 18th day of July 2017. Ken Petryshen, Arbitrator
- 50 - Appendix A
GSB Number OPSEU File Number Grievor
2012-2613 2012-0248-0074 Alaimo, Nick
2012-2614 2012-0248-0075 Alaimo, Vince 2012-2615 2012-0248-0076 Alkazely, Saleh
2012-2616 2012-0248-0077 Allen, Donna
2012-2617 2012-0248-0078 Allen, John
2012-2618 2012-0248-0079 Amato, Matthew
2012-2619 2012-0248-0080 Anttila, Kari
2012-2620 2012-0248-0081 Arbic, Mason
2012-2621 2012-0248-0082 Armstong, Curtis 2012-2622 2012-0248-0083 Arruda, Sandra
2012-2623 2012-0248-0084 Ashford, Jerome
2012-2624 2012-0248-0085 Barclay, Allan
2012-2625 2012-0248-0086 Bedford, Michael
2012-2626 2012-0248-0087 Beharrell, Allison
2012-2627 2012-0248-0088 Bond, Patti
2012-2628 2012-0248-0089 Borsatto, Sergio
2012-2629 2012-0248-0090 Boychuk, William
2012-2630 2012-0248-0091 Bradley, Tyler
2012-2631 2012-0248-0092 Brearley, Craig 2012-2633 2012-0248-0094 Buck, Dan
2012-2634 2012-0248-0095 Butler, Chris
2012-2635 2012-0248-0096 Buttenham, Brian
2012-2636 2012-0248-0097 Byrne, Anthony
2012-2637 2012-0248-0098 Caldecott, Anthony
2012-2638 2012-0248-0099 Campbell, Craig
2012-2639 2012-0248-0100 Caswell, Ken
2012-2640 2012-0248-0101 Chamberlain, Robert
2012-2641 2012-0248-0102 Champagne, Nicole
2012-2642 2012-0248-0103 Champagne, Nicole 2012-2643 2012-0248-0104 Collins, Elizabeth
2012-2644 2012-0248-0105 Davis, Alison
2012-2645 2012-0248-0106 Derkach, Michael 2012-2646 2012-0248-0107 Devries, Melissa
2012-2647 2012-0248-0108 Dickson, Cheryl
2012-2648 2012-0248-0109 Dickson, John
2012-2649 2012-0248-0110 Dinardo, Giustino 2012-2650 2012-0248-0111 Dorschner, Aaron
2012-2651 2012-0248-0112 Dowling, Chris
2012-2652 2012-0248-0113 Droughan, Tim 2012-2653 2012-0248-0114 Edwards, Michael
2012-2654 2012-0248-0115 Elderman, Gary
2012-2655 2012-0248-0116 Elliott, Brian
- 51 -
GSB Number OPSEU File Number Grievor
2012-2656 2012-0248-0117 Evans, Eric
2012-2657 2012-0248-0118 Fisher, Michael 2012-2658 2012-0248-0119 Fletcher, Hollie
2012-2659 2012-0248-0120 Foote, Don
2012-2660 2012-0248-0121 Forster, Andrew
2012-2661 2012-0248-0122 Fournier, Craig 2012-2662 2012-0248-0123 French, Christopher
2012-2663 2012-0248-0124 Gardiner, Robert
2012-2664 2012-0248-0125 Gauthier, Trevor 2012-2665 2012-0248-0126 Gearing, Mark
2012-2666 2012-0248-0127 Gernhart, David
2012-2667 2012-0248-0128 Gilbert, Elaine
2012-2668 2012-0248-0129 Giovannangeli, Roberto
2012-2669 2012-0248-0130 Glancie, Todd
2012-2670 2012-0248-0131 Gough, Mary
2012-2671 2012-0248-0132 Graham, Patricia
2012-2672 2012-0248-0133 Gulka, Patrick
2012-2673 2012-0248-0134 Hagen, Gordon
2012-2674 2012-0248-0135 Hawes, Kenneth 2012-2675 2012-0248-0136 Hebert, Joe
2012-2676 2012-0248-0137 Heiliger, David
2012-2677 2012-0248-0138 Herechuk, Larry 2012-2678 2012-0248-0139 Hill, Gary
2012-2679 2012-0248-0140 Hollick, Jennifer
2012-2680 2012-0248-0141 Hoye, Jason
2012-2681 2012-0248-0142 Hughes, Daryl
2012-2682 2012-0248-0143 Iacoviello, Paul
2012-2683 2012-0248-0144 Indelicato, Frank
2012-2684 2012-0248-0145 Irish, Gary 2012-2685 2012-0248-0146 Jackson, Dennis
2012-2686 2012-0248-0147 Jacobson, Steve
2012-2687 2012-0248-0148 Janisse, Brian
2012-2688 2012-0248-0149 Johnston, Donna
2012-2689 2012-0248-0150 Johnstone, Paul
2012-2690 2012-0248-0151 Jones, Amy
2012-2691 2012-0248-0152 Jones, Byan 2012-2692 2012-0248-0153 Kaine, Juanita
2012-2693 2012-0248-0154 Kavanaugh, Barbara Ann
2012-2694 2012-0248-0155 Keast, Crystal 2012-2695 2012-0248-0156 Klodnicki, Joseph
2012-2696 2012-0248-0157 Klodnicki, Ramona
2012-2697 2012-0248-0158 Kovacs, Bill
2012-2698 2012-0248-0159 Labeau, Daniel
2012-2699 2012-0248-0160 Lawson, Wayne
2012-2700 2012-0248-0161 Leblanc, Brian
- 52 -
GSB Number OPSEU File Number Grievor
2012-2701 2012-0248-0162 Lee, Jessica
2012-2702 2012-0248-0163 Lee, Todd 2012-2703 2012-0248-0164 Leroux, Tim
2012-2704 2012-0248-0165 Les, Kristina
2012-2705 2012-0248-0166 MacDonald, Shaun
2012-2706 2012-0248-0167 MacDougall, Andrew 2012-2707 2012-0248-0168 Maclean, Joyce
2012-2708 2012-0248-0169 MacNeil, Laurie
2012-2709 2012-0248-0170 Malcolmson, Gregg 2012-2710 2012-0248-0171 Mann, Dave
2012-2711 2012-0248-0172 Mason, David
2012-2712 2012-0248-0173 Masson, Paul
2012-2713 2012-0248-0174 Maude, Ron
2012-2714 2012-0248-0177 McCormick, James
2012-2715 2012-0248-0175 McDonald, Marie-Josee
2012-2716 2012-0248-0176 McIlveen, Lynn
2012-2717 2012-0248-0178 Melia, Paul
2012-2718 2012-0248-0179 Mennaman, David
2012-2719 2012-0248-0180 Mesaric, Sean 2012-2720 2012-0248-0181 Micieli, Vincent
2012-2721 2012-0248-0182 Millen, Darcy
2012-2722 2012-0248-0183 Mtichell, James 2012-2723 2012-0248-0184 Morley, Joseph
2012-2724 2012-0248-0185 Mortimer, Nicola
2012-2725 2012-0248-0186 Moryta, Melanie
2012-2726 2012-0248-0187 Muth, Peter
2012-2727 2012-0248-0188 Myers, Jeff
2012-2728 2012-0248-0189 Naylor, John
2012-2729 2012-0248-0190 Newland, Joanne 2012-2730 2012-0248-0191 Nicholson, Melissa
2012-2731 2012-0248-0192 Partingon, Michael
2012-2732 2012-0248-0193 Paterson, Brock
2012-2733 2012-0248-0194 Pedlar, Chris
2012-2734 2012-0248-0195 Pegan, Dan
2012-2735 2012-0248-0196 Penic, Michael
2012-2736 2012-0248-0197 Perkins, Catherine 2012-2737 2012-0248-0198 Polihronis, Angelo
2012-2738 2012-0248-0199 Pollard, Philip
2012-2739 2012-0248-0200 Pope, Michael 2012-2740 2012-0248-0201 Powell, Dave
2012-2741 2012-0248-0202 Preusser, Alexander
2012-2742 2012-0248-0203 Prince, Brian
2012-2743 2012-0248-0204 Prince, Cody
2012-2744 2012-0248-0205 Proctor, John
2012-2745 2012-0248-0206 Przychocki, Edward
- 53 -
GSB Number OPSEU File Number Grievor
2012-2746 2012-0248-0207 Rapedius, Randy
2012-2747 2012-0248-0208 Saul, Lita 2012-2748 2012-0248-0209 Scales, Stephanie
2012-2749 2012-0248-0210 Schuemann, Marina
2012-2750 2012-0248-0211 Schumacher, Steven
2012-2751 2012-0248-0212 Scriven, Jeanine 2012-2752 2012-0248-0213 Scriven, Robert
2012-2753 2012-0248-0214 Sebele, Michele
2012-2754 2012-0248-0215 Shewchyk, Michael 2012-2755 2012-0248-0216 Sibbick, David
2012-2756 2012-0248-0217 Siguenza, William
2012-2757 2012-0248-0218 Silva, Nelson
2012-2758 2012-0248-0219 Sindall, David
2012-2759 2012-0248-0220 Smid, John
2012-2760 2012-0248-0221 Smith, Craig
2012-2761 2012-0248-0222 Smith, Stephen
2012-2762 2012-0248-0223 Stavropoulos, Angela
2012-2763 2012-0248-0224 Stevens-Vardjas, Michelle
2012-2764 2012-0248-0225 Stuart, Grant 2012-2765 2012-0248-0226 Tait, William
2012-2766 2012-0248-0227 Tatryn, Stephanie
2012-2767 2012-0248-0228 Tatryn, Todd 2012-2768 2012-0248-0229 Taylor, Steven
2012-2769 2012-0248-0230 Tennant, David
2012-2770 2012-0248-0231 Toplin, Randy
2012-2771 2012-0248-0232 Tougher, Kathy
2012-2772 2012-0248-0233 Tsiodras, George
2012-2773 2012-0248-0234 Vanderdeen, Geoff
2012-2774 2012-0248-0235 Vandersloot, Dave 2012-2775 2012-0248-0236 Varey, James
2012-2776 2012-0248-0237 Varga, Steve
2012-2777 2012-0248-0238 Vieira, Michael
2012-2778 2012-0248-0239 Viola, Victor
2012-2779 2012-0248-0240 Walker, Paul
2012-2780 2012-0248-0241 Walsh, Susan
2012-2781 2012-0248-0242 Ward, Stephen 2012-2782 2012-0248-0243 Warren, Dean
2012-2783 2012-0248-0244 Waterhouse, Cathy
2012-2784 2012-0248-0245 Watson, Christopher 2012-2785 2012-0248-0246 Weliczko, David
2012-2786 2012-0248-0247 Welychka, Randy
2012-2787 2012-0248-0248 White, Craig
2012-2788 2012-0248-0249 White, Jeffery
2012-2789 2012-0248-0250 White, Michael
2012-2790 2012-0248-0251 Whyte, Thomas
- 54 -
GSB Number OPSEU File Number Grievor
2012-2791 2012-0248-0252 Wiemelink, Christopher
2012-2792 2012-0248-0253 Worsell, Graham 2012-2793 2012-0248-0254 Yule, Carter
2012-2794 2012-0248-0255 Zimmerman, George
2012-2795 2012-0248-0256 Zizzo, Christopher
2012-2796 2012-0248-0257 Zwolak, Joe 2012-3775 2012-0248-0271 Johnstone, Paul
2012-3846 2012-0248-0274 Campbell, Craig et al
2012-3847 2012-0248-0275 Caswell, Ken 2012-3848 2012-0248-0276 Gearing, Mark
2012-3849 2012-0248-0277 Pollard, Philip
2012-3850 2012-0248-0278 Pope, Michael
2012-4709 2012-0248-0279 Houston, Robert
2012-4768 2013-0248-0009 Union
2013-0589 2013-0248-0010 Hoye, Jason