HomeMy WebLinkAbout2000-1286.McGann.04-02-17 Decision
Crown Employees Commission de ~~
Grievance Settlement reglement des griefs
Board des employes de la
Couronne
~-,...
Suite 600 Bureau 600 Ontario
180 Dundas Sl. West 180 rue Dundas Ouest
Toronto Ontario M5G 1Z8 Toronto (Ontario) M5G 1Z8
Tel. (416) 326-1388 Tel. (416) 326-1388
Fax (416) 326-1396 Telec. (416) 326-1396
GSB# 2000-1286 2000-1317 2000-1382
UNION# 00D460 00B415 01B002
IN THE MATTER OF AN ARBITRATION
Under
THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT
Before
THE GRIEVANCE SETTLEMENT BOARD
BETWEEN
Ontano PublIc ServIce Employees Umon
(McGann) Grievor
- and -
The Crown In RIght of Ontano
(Mimstry of the Attorney General) Employer
BEFORE Dan Harns Vice-Chair
FOR THE UNION George RIchards
Gnevance Officer
Ontano PublIc ServIce Employees Umon
FOR THE EMPLOYER Len HatzIs
Counsel
Management Board Secretanat
HEARING July 22, 2003
2
DeCISIon
ThIS IS another decIsIOn m the dISposItIOn of a backlog of gnevances filed by Dag McGann, a
court servIces employee wIth the Mimstry of the Attorney General Seventeen gnevances have
been dealt wIth eIther by settlement or heanng In a consent order dated July 8 2002, hereafter
McGann Number 2 the partIes agreed to a process for dealIng wIth the then remammg
outstandmg gnevances Followmg an exchange of correspondence, the matters reconvened on
July 22, 2003 to deal wIth gnevances number 36 38 and 39
GIven the agreed upon process, thIS decIsIOn IS of lImIted precedentlal value by vIrtue of the fact
that eVIdence and argument were abbrevIated. Paragraph 11 of McGann Number 2 reads as
follows
11 The arbItrator wIll provIde bnefwntten reasons, It bemg understood that the
reasons wIll have precedentlal value to gUIde the workplace m sImIlar future
cIrcumstances, but ItS value my be lImIted by the nature of the process bemg
employed.
The narratIve relatmg to the first part of gnevance number 36 runs from Monday November 6
2000 through Thursday November 9 2000 On November 6 the gnevor reported to work wIth
an mJured ankle He was weanng an "air cast." He dId not submIt any form of medIcal note and
was not asked for one He was assIgned to a famIly law tnal, but advIsed hIS supervIsor Mr
Ventura, that he would have trouble sIttmg for the prolonged pen ods of a tnal He belIeved he
would be capable ofworkmg on pre-tnal conferences because he would be able to move around,
and he asked for that assIgnment. Mr Ventura Said there were pre-tnal opportumtles that day
but they were already staffed and It would have been a hardshIp to shuffle staff already m place
When the gnevor was not re-asslgned to pre-tnals, he said he could not work, receIved reportmg
pay of two hours and went home
3
On November 7 2000 the gnevor reported for work, turned down an offer of a four-hour work
assIgnment, took two hours reportmg pay and went home Later that day Mr Ventura called the
gnevor to tell hIm there was no assIgnment avaIlable for November 8 or 9 2000 that was
consIsted wIth the gnevor's self-certIfied work restnctIOns
In my VIew the employer accepted Mr McGann's medIcal work restnctIOn but dId not make
adequate attempts on November 6 to accommodate hIm. He should be compensated for hIS
losses for that day
On November 7 Mr McGann was offered a reasonable work assIgnment, whIch he turned
down. Accordmgly he IS not entItled to any further compensatIOn for that day
I accept Mr Ventura's eVIdence that there were no work assIgnments on November 8th or 9th that
fit Mr McGann's restnctIOns Accordmgly he IS not entItled to any compensatIOn for
November 8 or 9 2000 on that basIs However on November 9 2000 Mr McGann attended a
staff meetmg at 8 30 am There IS no eVIdence he was not paid for attendmg that meetmg. He
then attended a dIscIplInary meetmg at 9 30 There were ongomg Issues of dIscIplIne dunng that
work week. Those dIscIplInary Issues form the basIs of the remammg Issues of gnevance 36 and
gnevances 38 and 39
The dIscIplInary Issues arose as the result ofMr Ventura's concerns that the gnevor was not
sIgmng out correctly and had refused to pIck up certam matenals for delIvery to court. The
sIgmng out Issue arose because the gnevor belIeved he was entItle to a full day's pay whenever
he was scheduled, IrrespectIve of the tIme actually worked. He persIstently sIgned hIS tIme sheets
4
shoWIng a full day worked even though the employer knew of hIS posItIOn and had told hIm
numerous tImes to sIgn for hIS actual hours worked. That and other Issues were resolved In
OPSEU (McGann) andMinistlY of the Attorney General (GSB January 18 2001), hereafter
McGann Number 1 after twelve days of heanng.
To resolve the matter ofMr McGann's refusal to follow Mr Vemtura's orders, Mr McGann
was told to meet wIth Mr Ventura's supervIsor Mr MacLean. Bnefly put, the gnevor says he
was physIcally afraid to meet wIth Mr MacLean. Refusals to meet wIth Mr MacLean were
ongoIng dunng the penod In whIch McGann Number 1 was heard. Indeed on May 30 2000
beIng one of the heanng days In that case I suggested that Mr McGann meet wIth Mr MacLean
regardIng a dIfferent Issue, whIch he dId. There can be no questIOn that Mr McGann knew of
hIS oblIgatIOn to meet wIth Mr MacLean to receIve supervIsory dIrectIOn.
Nonetheless, In relatIOn to the Instant matters, he repeatedly refused to meet Mr MacLean alone
or wIthout the benefit of a tape recorder With each refusal he was progressIvely dIscIplIned
untIl hIS contInued employment was at stake had he not finally agreed to meet on December 12,
2000 The gnevor receIved the folloWIng dIscIplIne
October 20 2000 - letter of counsel
November 6 2000 - letter of repnmand
November 9 2000 - 3 day suspenSIOn
November 20 2000 - 5 day suspenSIOn
November 21 2000 - 15 day suspenSIOn
The umon conceded that there was no contractual foundatIOn for the gnevor's claim to umon
representatIOn or tape recorders at a supervIsIOn meetIng. In my VIew the employer had the nght
to meet alone wIth the gnevor In the CIrcumstances and the gnevor was oblIged to attend,
5
wIthout hIS tape recorder His succeSSIve refusals to attend were InsubordInate and properly
resulted In the progressIve dISCIplIne set out above Regrettably the correctIve effect of
progressIve dISCIplIne took some tIme to settle upon the gnevor UltImately It dId, and there IS
no reason to Interfere wIth that progresSIOn. Indeed, It would be counter productIve to do so
FInally a factual dIspute arose In the eVIdence between Mr MacLean and Mr McGann wIth
respect to what transpIred at one of the meetIngs To the extent necessary that dIspute IS hereby
resolved In Mr MacLean's favour In eIther event I find that Mr McGann sImply refused to
meet as part of a battle of wIlls The gnevor knew that he was oblIged to "work now and gneve
later" He specIfically knew that he was oblIged to meet wIth representatIves of the employer for
purposes of supervlson. He would not, and must accept the consequences of hIS actIOns The
gnevances as they relate to dIscIplIne are dIsmIssed.
Dated at Toronto thIS 1 ih day of February 2004
'\
,.. ''I