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HomeMy WebLinkAbout2006-2241.Union.08-02-04 Decision Commission de Crown Employees Grievance Settlement règlement des griefs Board des employés de la Couronne Suite 600 Bureau 600 180 Dundas St. West 180, rue Dundas Ouest Toronto, Ontario M5G 1Z8 Toronto (Ontario) M5G 1Z8 Tel. (416) 326-1388 Tél. : (416) 326-1388 Fax (416) 326-1396 Téléc. : (416) 326-1396 GSB# 2006-2241 UNION# 2006-0369-0038 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN Ontario Public Service Employees Union (Union Grievance) Union - and - The Crown in Right of Ontario (Ministry of Community Safety and Correctional Services) Employer BEFOREVice-Chair Felicity D. Briggs FOR THE UNION Peter Shklanka Grievance Officer Ontario Public Service Employees Union FOR THE EMPLOYER David Strang Senior Counsel Ministry of Government and Consumer Services HEARING November 30, 2007. 2 Decision Prior to November of 2006, the government of Ontario contracted Management and Training Corporation Canada (?MTCC?) to operate its jail in Penetanguishene, Central North Correctional Centre (?CNCC?). MTCC employed the majority of employees working at the jail. However, it did sub-contract out some of the work, such as nursing services to First Corrections Medical (?FCM?). When the Provincial government decided to take over the operations of CNCC the parties negotiated a Memorandum of Agreement dated September 18, 2006. In that document the parties agreed to a dispute resolution mechanism for mediation- arbitration. As a result of that provision I asked to assist the parties with the few remaining disputes arising from the repatriation of CNCC into the Ontario Public Service. The parties were successful at mediating some of the remaining disputes. However, there are a few outstanding matters. The first issue addressed by the parties is regarding offers of employment. During the discussions between the parties in preparing for expeditious arbitration of this matter, it became apparent that the parties were disparate on the standard of review appropriate in these circumstances. In a recently issued decision, I determined that in these unique circumstances the Employer did not have its usual broad discretion arising from Article 2 of the Collective Agreement, to hire employees subject only to reasonableness and fides. I determined that the criteria as set out in the bona Memorandum of Agreement were to be taken into account in deciding these disputes. A decision was issued on July 21, 2007 regarding whether the Employer ought to have made offers of employment to Ms. Martineau and Ms. Colbert, both of whom were previously employed by MTC and MTCC. 3 The Employer?s obligation to offer employment to two further individuals is the subject of this decision. The September 18, 2006, Memorandum of Agreement contemplates a variety of conditions the parties agreed upon concerning the transfer of operations. The relevant provisions for the purposes of the instant dispute are: Whereas the parties wish to effect a successful transfer of operations of Central North Correctional Centre to the Ontario Public Service (OPS) as of the transfer date on or about November 9, 20006; Therefore the parties agree to the following provisions on a without prejudice and precedent basis: 1.0 Introduction 1.1 This agreement is related exclusively to the transfer of operations of the Central North Correctional Centre (CNCC) to the OPS, specifically to the Ministry of Community Safety and Correctional Services (MCSCS). 1.2 It is understood that the term ?employees? refers to employees of MTCC who work at CNCC and who are hired in accordance with this agreement into the OPSEU represented positions at CNCC once it is transferred to the OPS. 2.0 Expression of Interest 2.1 Employees will be asked to submit a written expression of interest within five (5) working days of receiving an information package (consisting of a list of applicable positions, salaries and classifications) and consent form from MCSCS. The consent form must be signed and returned with the expression of interest. The purpose of the consent form is to transfer the employees? personnel files to allow the Employer to determine whether or not the employees meet the screening criteria and qualifications of the position, perform security/CPIC checks in accordance with MCSCS policies, and ensure eligibility to work in Canada. Screening criteria will include a review of personnel files for significant substantiated discipline. It will also include a review of 4 short-term sick leave usage over the last 12 months to ensure that usage is on par with the Ministry average. Justifiable absenteeism will not be considered. 2.2 The Employer will advise the Union if it determines that a job offer will not be made based on a review under 2.1 above. 2.3 Employees who have been previously dismissed with cause from the OPS will not be offered positions at CNCC. Evidentiary issues arose between the parties regarding certain documents in the personnel files of the two individuals. These admissibility objections were argued by way of written submission and this Board issued a ruling stating that neither party could ?go behind the record? of the two individuals. This decision deals with the Employer?s failure to offer employment to Ms. Cindy Williams and Ms. Deanna Rybarczyk. THE FACTS REGARDING CINDY WILLIAMS A review of the documents proffered in this matter is of assistance. On August 6, 2006, Ms. Williams received a Notice of Caution citing three infractions. There were listed as follows: 1. Neglect of duty or refusal to perform work assigned. 2. Making false or misleading statements to management in the conduct of company business. 3. Improper or unauthorized use of company-owned customer/government- owned or leased property, vehicles or credit cards. It is useful to set out the detailed account. It stated: Incident #1 On April 28, 2006 you were working your assigned shift on Unit #9 as the control room officer, and your partner was CO Deanna Rybarczyk. The offenders on Unit 9A were locked down for behavioural reasons when 5 approximately 1502 hours CO Rybarczyk entered Unit 9A and heard an offender call out that offender X was having a seizure. Your partner proceeded directly to cell 45, had a conversation with offender X?s cell partner through the door and walked away from the door. At this time she used her radio to request that you call a Medical Incident Management System (MS) to Unit 9A, Wing cell 45, which you did. On May 2, 2006 Major Walker received an Inmate Complaint Tracking Form from offender B, the cell partner of offender X. the form alleged that it took you and your partner an unacceptable amount of time to respond to her call for assistance, even though she had pressed the intercom button in her cell several times to get your attention. On May 2, 2006, Major Walker received another Inmate Complaint Tracking Form from offender X, supporting these allegations. An investigation was initiated into these allegations. The investigation has concluded the following: Prior to your partner entering A wing at 1502 hrs. offender X?s cell partner had tried to gain your attention by calling out and pushing the intercom button located in her cell. The first time the intercom was activated was 1458 hours. It was activated and cleared an additional three times over a period of approximately four minutes and twenty- seven seconds. You were directly responsible for the cancellation of four intercom calls for assistance from cell 45 A wing. You were directly involved in the Medical IMS of A wing cell 45 and you failed to submit an occurrence report until days later when you were called in to work and requested to write one. During the interview with Major Walker he asked you why you did not submit a report for this incident. You stated, ?I think I was thrown off because I had to go to training and I was late and if a report was required then the Shift Lt. of the Sgt. Would have told me to write a report?? Major Walker asked you did you not feel being directly involved in a call for a Medical IMS would require you to write an occurrence report? You stated, ?Yes I do. Lt. Caldwell had called me about training and told me that I was late. I did not write a report. I mess up in that area and screwed up. However, I do feel that if one were required I would have been asked to write a report.? During the interview with Major Walker, you provided several misleading statements regarding the events of this incident. You stated ?The call button, in I believe cell 45 A Wing, went off and I informed my partner Deanna of the button being pressed. Deanna asked me to call a Utility Officer so I did. I did not get a response from my call.? When Major Walker asked why did you not ask CO Martin, a utility 6 officer who was in the control module with you when the intercom was activated to go into A wing, you stated, ?I don?t know.? You then requested to view the Unit 9 control module video of April 28, 2006. Once you and your union representative had viewed the tape, Major Walker asked you if you could tell him anything about the Medical IMS that occurred. You stated ?Nothing. I have answered what happened already. It was a while ago. What I said is what I recall. After watching the video, if that is what happened that is what happened.? As a result of this investigation, you are being suspended without pay for three (3) days effective immediately in lieu of termination. Any further violations may result in disciplinary action up to and including termination. Incident #2 During the course of this investigation, additional information came to light in regards to the misuse of Ministry computers. Two offenders made allegations that you and your partner, CO Deanna Rybarczyk were viewing pornographic material on the computer located in the Unit 9 control module. On May 8, 2006 the Ministry computer located in the Control Module on Unit 9 was removed and an investigation was requested through Regional Office to suspend your IT accounts and to review the computer for inappropriate use of Ministry technology equipment. On May 17, 2006, Major Walker regarding these allegations interviewed you. During the interview Major Walker asked you if you had ever used the computer located in Unit 9 Control Module to view material that may be regarded as offensive, inappropriate and/or unprofessional. You stated ?Maybe inadvertently. I am not aware of this happening but it may have happened inadvertently?. Major Walker asked you if you had ever witnessed or have knowledge of a staff member of staff members using the computer located in the Control Module on Unit 9 to view material that may be regarded as offensive, inappropriate and/or unprofessional. You stated ?No?. The investigation into this incident has concluded the following: A number of files were found on the hard drive of the desk top machine shared by the two subjects. These consisted primarily of images of sexually suggestive content, including nudity. Each person has his/her own profile and the user?s personal settings and activities are stored in the user profile on the hard drive. It is therefore impossible to determine which use is responsible for which actions. 7 There is evidence of a significant amount of activity accessing internet sites that would not be considered appropriate for work, including sites with online games, jokes and images. A large number of interactive content were also found. These consisted of downloaded video files and audio files as well as shockwave files. The video files are in the nature of jokes and pranks, sometimes involving explicit language. This is a misuse of Ministry computer: watching/saving/sending inappropriate internet material including jokes, cartoon depicting nudity, sexually suggestive content and crude jokes. As a result of this investigation, you are being suspended without pay for three (3) days effective immediately. Any further violations may result in disciplinary action up to and including termination. It was stated on the Notice of Caution set out above that the Infractions set out were ?Category II?. In the Employee Handbook that was in place at the time for MTCC, Category II offenses where stated to be, ?infractions which may result in immediate dismissal.? Also in Ms. Williams? file was an ?Employee Unsatisfactory Performance Critique? dated October 27, 2005. This document counsels the grievor to conduct herself ?in accordance with policies and procedures and operational orders at all times?. According to the documentation, this direction was given after it was found that Ms. Williams had told an inmate to ?Fuck Off?. On April 11, 2006, Ms. Williams received another Employee Unsatisfactory Performance Critique as the result of an incident. That document states, in part: I approached you in the Control Module and asked you why you had not followed my verbal direction to not use a utility officer for the purposes of the count and you informed me that you had already called her before our conversation. I reminded you at the time that I had spoke with you on the telephone prior to the utility officer attending the Unit. I reminded you that you had the opportunity to cancel the call for the Utility Officer (as I 8 directed) prior to her attending the Unit. I then proceeded to indicate to the Utility Officer that she was not required on the Unit at this time. Ms. Williams twice received performance appraisals. The first was given following six months of employment and the second was issued in late October of 2004. Both appraisals were positive and included comments such as: Works well without direct supervision Meets all goals set Good knowledge of policies Work well with other Completes works accurately and in a timely manner Follows direct well A hard worker Rapidly accepts assignments and extra shifts Punctual and dependable I also received a personal statement written by Ms. Williams regarding her view of the Employer?s failure to offer her employment and the affects of the decision. She took responsibility for her actions and claimed to have learned from mistakes. THE FACTS REGARDING DEANNA RYBARCZYK Ms. Rybarczyk?s file has notations of positive performance. In October of 2002 it was noted that her ?professionalism was appreciated? for helping in the Admit and Discharge area which was ?critically short staffed?. In November of 2004 she was thanked for her assistance in escorting an ?unruly and potentially violent inmate from a housing unit to Female Segregation.? In January of 2006, Ms. Rybarczyk was thanked for her assistance with a ?number of operational issues?. She was told by the Deputy of Operations that he was ?impressed? with her ?efforts and co- operation in assisting to manage these issues?. 9 The performance appraisal the was given to Ms. Rybarczyk covering the year 2005 revealed that it was thought she was above average in most categories and also said that she: Have to be given little direction and minimal supervision to complete your tasks and you do this in a successful manner. Demonstrated a sound knowledge of the policy and procedures we follow Exceed the standard for working with others Maintain a good level of supervision with inmates Put a consistently good effort into any task The Notice of Caution that Ms. Rybarczyk received on August 10, 2006 was very similar to that given to Ms. Williams. The list of infractions that brought about the Notice of Caution was identical to that set out above. For those reasons it is not necessary to reproduce the notice in its entirety. The document stated the investigation conclusions as follows: You failed to remain at cell #45 where a female offender was in medical distress. You did not keep offender X in direct observation even though you knew she required medical attention. Instead you walked away from her cell and out of the wing. You were directly involved with the Medical IMS of A wing cell 45 and you failed to submit an occurrence report until days later when you were called in to work and requested to write one. During the interview with Major Walker he asked you why you did not submit a report for this incident. You stated, ?I was not asked to do so. I did ask Sgt. Gregoire if I should write a report, he said no, you were not responding. I think the reason he said this is because he did not know that I had asked to initiate the IMS. If he had known all that, then I think he would have asked me to write a report.? Major Walker asked you knowing that you had called the Medical IMS and were directly involved in the incident why did you not write a report? You stated, ?because I was not asked to?. During the interview with Major Walker, you provided several misleading statements regarding the events of this incident. You stated, ?I was not part of the IMS response.? When Major Walker asked you why you did not remain at the cell door in order to observe what could have occurred next, you stated, ?I decided to leave and 10 wait on the door so that I could let the responding staff know what was going on.? Major Walker informed you that as per the Unit 9 dayroom video and Control Module video, you spoke with the occupants of cell 45 for approximately 15 seconds, and knowing you were going to call a Medical IMS why did you not stay there? You then requested to view the Unit 9 dayroom and control module video of April 28, 2006. Once you and your union representative had viewed the tape, Major Walker asked you why you did not stay at the cell. You stated ?Because that was the call that I made. I made a judgment call. Nowhere in my training was I ever told that if I was going to initiate an IMS that I should open a cell door without back- up.? For this infraction, Ms. Rybarczyk was suspended for one day without pay. Like Ms. Williams, the grievor also received a three day suspension without pay for ?misuse? of the computers. The investigation findings set out for Ms. Rybarczyk are identical to those found above in this regard for Ms. Williams. However, in the comments which preceded the findings the following was stated: On May 17, 2006 Major Walker regarding these allegations interviewed you. During the interview Major Walker asked you if you had ever used the computer located at Unit 9 Control Module to view material that may be regarded as offensive, inappropriate and/or unprofessional. You stated. ?No.? Major Walker asked if you had ever witnessed or have knowledge of a staff member or staff members using the computer located in the Control Module on Unit 9 to view material that may be regarded as offensive, inappropriate and/or unprofessional. You stated, ?Not that I am aware of. Sometimes people leave their computers on when the go for breaks. You do not know what they are looking at.? SUBMISSIONS OF THE PARTIES It was the Employer?s submission that the discipline imposed on Ms. Williams and Ms. Rybarczyk resulted from two major breaches of policy. The first discipline was given because of inmate security issues and the second discipline was meted out due to abuse of the Employer?s computers. Both of these issues are matters of 11 paramount importance to this Employer. Once the personnel records of both Ms. Williams and Ms. Rybarczyk were reviewed, it was evident that due to the level of discipline and the reasons for which it was imposed, the Employer was not obliged by the Memorandum of Agreement to extend offers of employment. Indeed, the Employer considered both of the individual periods of suspension to be significant in nature. When the two periods of suspension are considered there can be no doubt that each grievor had received significant discipline. The Union suggested that I should consider these disciplines in the context of Ministry standards. In the Union?s view, a significant suspension would be weeks in length, not merely days. At most, the facts reveal that both Ms. Williams and Ms. Rybarczyk were disciplined for a breach of procedure and a misuse of company time and property. Those minor infractions coupled with the other documents found in their personnel records must lead to a finding that the Employer breached the Memorandum of Agreement by failing to extend to each of the grievors an offer of employer. DECISION In the first decision issued regarding this process I found that: In my view, all of these provisions establish that the Employer did not have its usual broad discretion, found at Article 2 of the Collective Agreement, to hire in these circumstances subject only to reasonableness and . I bona fides agree with the Union that it would make no sense for the parties to detail specific criteria in the Memorandum of Agreement if the proper result was that the Employer retained its usual broad Collective Agreement rights. To find for the Employer would be to give virtually no meaning to paragraphs 2 and 3 of the Memorandum of Agreement. Re Dunham Bush Of the case law provided the one of most assistance was . In that case the parties had negotiated a Memorandum of Agreement dealing specifically with the settlement of a strike. In that document the parties had 12 agreed to, amongst other things, how employees would be recalled to work. The grievance before Arbitrator O?Shea alleged that the grievors should have been recalled in accordance with the terms and provision of the Collective Agreement. The Board disagreed and found, at page 404, ?that the Union, having agreed to the special provisions for recall set out in the memorandum, cannot now rely, for the purposes of this grievance, on the provisions of the Collective Agreement.? In this case the parties were facing a unique situation. Indeed, the Union referred to this arrangement as a ?one off?. In order to deal with a seamless transition of operations, which would be essential in a jail, they negotiated provisions beyond those found in the Collective Agreement. There must have been a purpose for setting out the screening criteria for offers of employment. I am of the view that by doing so the parties agreed to fetter the Employer?s normal broad discretion with respect to hiring. While, as set out above, the Employer does not have its usual broad discretion regarding the hiring of these two MTCC employees, the right to an offer of employment was not a certainty. The parties negotiated criteria that would govern the process and this decision, like earlier awards, contemplates whether there has been a breach of the parties? agreement in this regard. After consideration I find that I cannot agree with the Union. The Union suggested that I compare the discipline imposed upon Ms. Williams and Ms. Rybarczyk with discipline imposed on employees in Correctional Services in the OPS. In my view, this would not be an appropriate comparison. The length and severity of discipline generally imposed in the Ontario Public Service is of little assistance in my determination as to whether there is ?significant? discipline on the file of an individual who was an employee of MTCC at the time discipline was imposed. After taking all of the evidence into account, I am of the view that both Ms. Williams and Ms. Rybarczyk had significant discipline on their file at the time that the Employer undertook its review in accordance with the Memorandum of 13 Agreement. The discipline consisted of two suspensions totaling six and four days respectively which had been imposed approximately four months earlier. The nature of the incidents for which the discipline was imposed was not, in my view, minor infractions as suggested by the Union. The grievors were disciplined for matters which understandably caused great concern for their Employer. Therefore, given the nature of the incidents as set out in the Notice of Caution, the fact that there were two suspensions and the severity of each of the disciplines, I must find for the Employer. I appreciate that both grievors had documents in their files with positive comments. However, the performance appraisals and letters of good conduct do not mitigate the significant discipline received. It has been apparent throughout this process that the Employer and the Union agreed to terms and provisions in a Memorandum of Agreement that ultimately meant that the vast majority of MTCC employees would be offered employment by the Ministry of Corrections. Indeed, it is my recall that all but approximately nine employees were given offers of employment. The parties agreed that some restrictions would apply. The condition that has been at the heart of these disputes has been the issue of whether an employee had significant discipline on their personnel file at the time of the Employer?s review. Each situation has been considered in context of the relevant facts. In the case of these two individuals I simply cannot find that their disciplinary records are not significant. Indeed, given the facts regarding how discipline was considered and handled at MTCC, it is difficult to imagine what would be significant discipline if I had found for the grievors in this instance. 14 For those reasons, I must dismiss these matters. th Dated in Toronto this 4 day of February, 2008. Felicity D. Briggs Vice-Chair