HomeMy WebLinkAbout2003-3597.Beltrano et al.06-05-23 Decision
Crown Employees Commission de Nj
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# 2003-3597 2003-3600 2003-3603 2003-3604
UNION# 2004-0135-0001 2004-0135-0002,2004-0135-0005 2004-0135-0006
IN THE MATTER OF AN ARBITRATION
Under
THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT
Before
THE GRIEVANCE SETTLEMENT BOARD
BETWEEN
Ontano PublIc ServIce Employees Umon
(Beltrano et al ) Union
- and -
The Crown In RIght of Ontano
(Mimstry ofCommumty Safety and CorrectIOnal ServIces) Employer
BEFORE Ken Petryshen Vice-Chair
FOR THE UNION Ed Holmes
Ryder Wnght Blair & Holmes LLP
BarrIsters and SOlICItorS
FOR THE EMPLOYER Sunee1 Bahal
Counsel
Mimstry of Government ServIces
HEARING May 3 2006
2
DeCISIon
In gnevances dated January 27 2004 Mr K. Beltrano Mr J Noseworthy Mr DOrton
and Mr D Fredencks claim that they were dIscharged wIthout Just cause The gnevors are
CorrectIOnal Officers who had been employed at the Windsor JaIl Although the Employer relIes
on a number of grounds to support the dIscharge of each gnevor the pnmary ground IS that they
used force on an Inmate that was unJustIfied and exceSSIve The gnevors deny the Employer's
allegatIOns concermng the use of force The gnevances were consolIdated and are beIng heard
together
On May 3 2006 at the conclusIOn of the Employer's case whIch reqUIred 26 days of
heanng In Windsor the Umon made what It charactenzed as a motIOn for non-sUIt In connectIOn
wIth the gnevance filed by Mr Fredencks Counsel for the Umon argued that the Employer dId
not call any eVIdence that could support the dIscharge ofMr Fredencks and requested that I
dIrect the Employer to reInstate Mr Fredencks forthwIth. If thIS motIOn succeeds, the partIes
agreed that I should refer any remedIal Issues back to them They also agreed that the matter
would come back to me If they were unable to settle any of the remedIal Issues connected wIth
Mr Fredenck's reInstatement. ConsIstent WIth the practIce at the Gnevance Settlement Board,
counsel for the Employer advIsed that the Employer would not reqUIre the Umon to make an
electIOn as to whether It would call eVIdence as a condItIOn of proceedIng wIth the motIOn.
In ItS dIscharge letter of January 27 2004 the Employer claims that Mr Fredencks
engaged In the folloWIng conduct
1) That on, Tuesday March 11 2003 you used force that was unJustIfied whIle
escortIng Inmate Horan down the stairs to segregatIOn by pullIng and pushIng hIm
3
and thIS IS a breach of#l) Mimstry PolIcy ADI 04-20-01 Secunty Use of Force,
Page 1 #2) the Windsor JaIl StandIng Orders, SectIOn 3 Control/Secuntyand
OperatIOns, Page (52) and #3) ADI 02-13-01 Conduct and DIscIplIne Page (2) (L)
2) That on, Tuesday March 22, 2003 you used force that was unJustIfied and exceSSIve
by stnkIng Inmate Horan multIple tImes whIle he was restraIned on the first floor and
thIS IS a breach of#l) Mimstry PolIcy ADI-02-13-02, Staff Conduct and DIscIplIne,
Page (2) #2) ADI-04-20-01 Secunty Use of Force, Page (1) # 3) Windsor JaIl
StandIng Orders, SectIOn 3 Control/Secunty and OperatIOns, Page(52)
3) That on, Tuesday March 11 2003 you faIled to submIt an Occurrence Report
concernIng the IncIdent wIth Inmate Horan on Tuesday March 11 2003 that detaIled
the nature of the threat posed by thIS Inmate as well as all of the CIrcumstances of the
IncIdent and thIS IS a breach of#l) Mimstry PolIcy ADI-OI-07-01 Occurrence
Reports #2) ADI-02-13-01 Staff Conduct and DIscIplIne #3) ADI-04-20-01
Secunty Use of Force, Page (1) #4) Windsor JaIl StandIng Orders, SectIOn 3
Control/Secunty and OperatIOn, Page (52)
The pnncIples that apply to the determInatIOn of a non-sUIt motIOn were not In
dIspute The standard to be applIed In aSseSSIng the eVIdence IS lower than the standard of the
balance of probabIlItIes In determInIng whether a prima facie case has been made out, the
arbItrator has to determIne whether there IS some eVIdence to support the claim The arbItrator IS
not to assess the qualIty or credIbIlIty of the eVIdence or what weIght the eVIdence deserves
The facts are to be Interpreted In a manner most favourable to the party agaInst whom the motIOn
IS made For example, where a wItness provIdes dIfferent verSIOns of an event, the verSIOn that IS
favourable to the party agaInst whom the motIOn IS made takes precedence I agree wIth counsel
for the Employer's submIssIOn that an arbItrator IS oblIged to consIder documentary eVIdence
when aSseSSIng whether there IS some eVIdence to support the Employer's claim Dunng the
submIssIOns, I was referred to the folloWIng decIsIOns Re OPSEU (Dhanju) and Ministry of
Municipal Affairs and Housing GSB 2004-1101 (DIssanayake) Re OPSEU (Sager Shelleyet
al) andMinistry of Transportation GSB 2000-0377 (Mikus) Re OPSEU (Watkin) andMinistry
of Health GSB902-89(Samuels),RePelleCo andUS.WA. Lac 6457(1994) 39L.A.C (4th)
370 (Kennedy), Re University of Western Ontario and C UP.E Local 2361 (1990), 15 L A.C
4
(4th) 189 (DIssanayake) and OPSEU (Faler) and Ministry of Correctional Services GSB 218/89
(Fisher)
The Issue for determInatIOn on thIS motIOn IS whether the Employer has made out a prima
facie case concermng the dIscharge ofMr Fredencks Put another way the Issue IS whether
there IS some eVIdence to support the Employer's claim agaInst Mr Fredencks After
consIdenng the oral and documentary eVIdence adduced dunng the Employer's case, the
submIssIOns of counsel and the relevant pnncIples, It IS my conclusIOn that the Umon's non-sUIt
motIOn must fall and It IS hereby dIsmIssed. In accordance wIth the agreement of the partIes and
the GSB's practIce, I wIll not provIde reasons for that conclusIOn.
Dated at Toronto thIS 23rd day of May 2006