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HomeMy WebLinkAbout2001-0224.Sammy et al.02-06-25 Decision ~~~ om~o EA1PLOYES DE L4 COURONNE _Wi iii~~~~~T DE L ONTARIO COMMISSION DE REGLEMENT ~_II'" BOARD DES GRIEFS Ontario 180 DUNDAS STREET WEST SUITE 600 TORONTO ON M5G 128 TELEPHONEITELEPHONE. (416) 326-1388 180 RUE DUNDAS OUEST BUREAU 600 TORONTO (ON) M5G 128 FA CSIMI LEITELECOPI E. (416) 326-1396 GSB#0224/01, 1474/01 UNION# 01A503, 01A504, 01A505, 01A506, 01A507, 01A508, 02B027,02B028, 02B029 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN Ontario Public Service Employees' Union (Group Grievance, Sammy et al) Grievor -and- The Crown In Right of Ontario (Ministry of Correctional Services) Employer BEFORE Daniel A. Harns Vice-Chair FOR THE UNION Ed Holmes Counsel Ryder Wright Blair & Doyle Barnsters & SoliCitors FOR THE GRIEVOR Nelson Roland (representing Mr Dewar) Barnster & SoliCitor 2 FOR THE EMPLOYER AJamu Boardl Staff Relations Officer Ministry of Correctional Services HEARING June 12, 2002 3 DECISION The Proceedin2s ThIs decIsIOn deals wIth a request by the Dmon that the dlsclphne levIed agamst the gnevors be declared vOId because of the Employer's delay mlmposmg It. It IS brought on behalf of Dale Sammy, Donald Cuthbert, Alton McFarlane, Carlton Johnson, Tim Colhns, Robert Mondeslr and Mark Dewar The gnevors are all correctIOns officers The Facts The gnevors were dlsclphned for an mCldent alleged to have occurred on February 2, 200 1m whIch an mmate was saId to have been assaulted. The gnevors were suspended wIth pay and an mternalmvestlgator was appomted to report on the matter On February 27,2001 the first SIX gnevors, all of whom are unclassIfied, had theIr suspensIOns changed to suspenSIOns wIthout pay Mr Dewar was suspended wIth pay By May 23,2001, the mvestlgator's mtervlews had concluded. On June 26th, 2001 Mr Dewar was returned to work On July 24, 2001 the mvestlgator provIded hIS final report to the Employer On September 5 and 18,2001 a heanng took place before the Gnevance Settlement Board m whIch the Dmon argued that the balance of harm m these matters favoured the gnevors to such an extent that they ought to have theIr pay 4 remstated pendmg the Employer's decIsIOns resultmg from the mvestIgator's report By a decIsIOn dated October 9, 2001 It was ordered that the gnevors on suspenSIOn wIthout pay have then pay restored retroactIvely to August 1,2001 AllegatIOn meetmgs were held by the Employer wIth the gnevors dunng the week of September 20_26th, 2001 On November 5,2001 the Employer determmed that four of the unclassIfied gnevor's be dIscharged from theIr employment, two of the unclassIfied gnevors receIved suspensIOns wIthout pay and Mr Dewar, the classIfied employee, was also dIscharged. Reasons for Decision The Dmon submItted that the Employer's nght to suspend an employee pendmg mvestIgatIOn flows from the Public Service Act R.S 0 1990, c P 47 Accordmgly, once the mvestIgatIOn IS complete, that nght ceases It was said that the mvestIgatIOn mto these matters was completed wIth the dehvery of the mvestIgator's report on July 24, 2001 Although the collectIve agreement here does not prescribe deadhnes for the ImposItIOn of dIscIphne, the P S.A. was said to do so The Dmon's central submIssIOn was to the effect that the Employer IS reqUIred, as a matter of arbItral prmcIple, expedItIOusly to sanctIOn an employee for behavIOur consIdered mappropnate Accordmgly, even If there IS no demonstrated prejUdICe 5 to the mdIvIdual the dIscIphne wIll be struck down as vOId where there IS an umeasonable delay mlevymg the dIscIphne I dIsagree In my VIew, that IS much too bald a statement of the effect of the prmcIple The Umon has faIled to apprecIate that prejUdICe may be demonstrated by eVIdence of the fact or by mference due to the mherent prejUdICe Some of the cases rehed upon by the Umon rest upon a conclusIOn that there was mherent prejUdICe to the gnevor occasIOned by the delay mImposmg dIscIphne By way of example, mManitoba Pool Elevators Brandon Stockyards (mfra), ArbItrator Peltz said at page 287 I accept that reasonabh expedItIOus dIscIphne IS a matter of general arbItral pnncIple In the present case despIte the absence of eVIdence from the gnevor as to actual preJudIce I would, If necessan be prepared to find preJudIce under the over-all CIrcumstances of thIS case Yard receIvmg workers at the Brandon pool must deal wIth numerous customers and numerous dehvenes on a daIh basIs To confront an employee wIth the specIfics of a smgle bnef encounter wIth a customer eIght and a half months after the fact IS mherenth unfair and preJudIcial In Manitoba Pool, It was the demonstrable, mherent prejUdICe that moved ArbItrator Peltz. Other cases, cIted by the Umon, were examples of sItuatIOns where an employer was reasonably seen to have condoned the behavIOur whIch It later sanctIOned. Such a sItuatIOn IS also prejUdICIal smce an employee may be lulled mto a mIstaken behef that the transgressIOn has been forgIVen. 6 One factual aspect that dIfferentIates the JUrIsprudence IS whether or not the employee knew of the alleged mIsbehavIOur Generally speakmg, where an employee does not know that the employer takes Issue WIth how they have dIscharged theIr dutIes there IS mherent prejUdICe occasIOned by delay mlevymg dIscIphne The more the complamt relates to routme dutIes, the greater IS the prejUdICe, and the general arbItral prmcIple that opposes delay wIll act m the employee's favour Where the transgressIOn IS WIth respect to actIOns that are not routme, they stand out and the employee must be taken to know that the employer wIll take Issue WIth them As ArbItratIOn Herhch said m AFG Industries Ltd CIted m National Grocers (mfra) I have consIdered the nature ofthe allegatIOns from a ven specIfic perspectIve If we ask someone were you hIt b, the truck four months ago?" or dId you rob the bank four months ago?" we do not antIcIpate a response such as 'I mIght have I don t recall- wh, dIdn t you ask me sooner?" There are some events one sImph does not forget. That IS to say, If the events at Issue are extraordmary rather than routme, It becomes mcreasmgly dIfficult to mfer mherent prejUdICe as a result of delay The general prmcIple of reasonably expedItIOus dIscIphne wIll then be balanced wIth the CIrcumstances of the case by lookmg to actual rather than mherent prejUdICe There IS nothmg mherently prejUdICIal If the events are of such a nature that one sImply does not forget them 7 Another category of cases IS where the gnevor and employer know of the unacceptable behavIOur yet the employer does nothmg about It or otherwIse leads the employee to the conclusIOn that the behavIOur wIll be tolerated or forgIVen. In those cases the employer's condonatIOn of the behavIOur IS Itselfumeasonable delay If dIscIphne IS subsequently Imposed. The condonatIOn may be proven by eVIdence of the fact, or It may be mferred as mherent m the CIrcumstances I turn now to consIder where on the contmuum these events fall. In the CIrcumstances before the Board m these matters, the gnevors knew promptly that the Employer objected to theIr purported handhng of the mCIdent of February 2, 2001 All that the Board knows of the mCIdent at thIS Juncture IS that It mvolves an allegatIOn that an mmate was assaulted. An allegatIOn that an mmate has been assaulted IS prima facie m that category of extraordmary events referred to by ArbItrator Herhch. In any event, these gnevors were ImmedIately put on notIce by way of theIr suspensIOns ThIs IS not a case where prejUdICe mIght be mferred from the delay mImposmg formal dIscIphne In CIrcumstances such as these, there can also be no senous consIderatIOn gIVen to the proposItIOn that the Employer may have condoned the event. Weare deahng wIth allegatIOns that correctIOns officers assaulted an mmate It was submItted on behalf of Mr Dewar that hIS return to work on June 26, 200 1 leads to an mference that the Employer condoned the events Absent clear eVIdence that the Employer 8 meant to exonerate Mr Dewar by returnmg hIm to the workforce, the Board can not draw such an mference Such an event could not be taken as mherently condoned. The effect of delay m cases such as these before the Board has been succmctly set out by Vice-chair DIssanayake m Re Dannenberg, 414/89 and Re Bonacci 1923/96 In Bonacci the Board said as follows at page 11 The test to be apphed, m the Board s VIew IS whether m the partIcular cIrcumstances the gnevor was reasonabh led to conclude that her conduct had been forgIven or condoned or that the employer had somehow dropped the matter That IS what would make It unfair and meqUItable for the employee to later find that he or she was subJect to dIscIphne There IS no eVIdence of such, and thIS IS not a case where It mIght be mferred. Fmally, I turn to the effect of the Public Service Act. SectIOn 22 (1) of the Act reads as follows A depun mmIster ma, pendmg an mvestIgatIOn, suspend from employment an, pubhc servant m hIS or her mmIstn for such penod as the regulatIOns prescribe and dunng an, such penod of suspenSIOn ma, wIthhold the salan of the pubhc servant The "mvestIgatIOn" referred to IS the mvestIgatIOn undertaken by the Employer Part of that mvestIgatIOn was the appomtment of an mternalmvestIgator to gather the eVIdence However, It IS the Employer's responsibIhty to complete the 9 mvestIgatIOn by analyzmg the eVIdence and affordmg the gnevors both the nght to know the allegatIOns agamst them and an opportumty to respond. The mvestIgatIOn contmued untIl the Employer reached Its conclusIOns The Board has already detenmned that the length of tIme the Employer took shIfted the balance of harm to the gnevors, and It fashIOned an appropnate mtenm remedy The Decision The Umon's request that the dIscIphne be declared vOId IS demed. DA TED AT TORONTO thIS 25th day of June 2002 . I." . Damel A. HarrIs, Vice-chair 10 Aooendix A The Dmon rehed upon the followmg authontIes Sammy et ai, GSB 0224/01 (Harns, October 9,2001) Public Service Act, R.S 0 1990, c P 47 Canadian Labour Arbitrator Brown and Beatty 7 2100 Manitoba Pool Elevators Brandon Stockyards and UFCW(1993), 35 L.A.C (4th) 276 University of Ottawa and I U 0 E Local 796-B (1994),42 L.A.C (4th) 300 o CA W, Local 9-672 and DOW Chemical of Canada (1996), 18 L.A C 50 RatzlajJv British Columbia (Medical Services Commission), [1996] B C IN No 36 Dannenburg, GSB 414/89 (DIssanayake) The Employer rehed upon the followmg authontIes Dannenburg, GSB 414/89 (DIssanayake) Bonacci GSB 1923/96 (DIssanayake) Hardy, PSGB P/0034/93 (LeIghton) Metro Toronto (Municipality) and CUP E, Loc 79 (Dalton) (1999), L.A.C (4th) 1 11 Appendix A British Columbia and B C G S.E U (1995),47 L.A.C (4th) 238 Saint Mary's Hospital (New Westminster) and H E U (0 'H ern) (1997), 67 L.A C (4th) 84 National Grocers Co Ltd. And Teamsters Union, Local 419 (1983), 11 L.A.C (3rd) 193 Nova Scotia and N S.G E U (Coates) (1999), 83 L.A.C (4th) 218 Canadian Labour Arbitration, Brown and Beatty 2 3210