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HomeMy WebLinkAbout2006-1916.Magee.08-05-20 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# 2006-1916, 2006-1918 UNION# 2006-0310-0015, 2006-0310-0017 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN Ontario Public Service Employees Union (Magee) Union - and - The Crown in Right of Ontario (Ministry of Natural Resources) Employer BEFOREVice-Chair Nimal Dissanayake FOR THE UNION Gavin Leeb, Barrister and Solicitor (September 27 ? November 2, 2007) John Brewin, Barrister and Solicitor Adrienne Liang, Student-at-Law Ryder Wright Blair & Holmes LLP Barristers and Solicitors (March and April, 2008) FOR THE EMPLOYER George Parris, Counsel Susan Munn, Student-at-Law Ministry of Government and Consumer Services HEARING September 27 & 28, October 12 & 26, November 1& 2, 2007; March 6, April 11 & 14, 2008. 2 Decision I am seized with a number of grievances filed by Mr. Ian Magee, (?grievor?) who is employed as a Conservation Officer (?CO?) with the employer. The parties agreed that I should proceed initially with files 2006-1916 and 2006-1918, and remain seized with the others. These two files relate to events of July 9, 2006 when the grievor allegedly stored his employer issued firearm, badge duty belt and in an unlocked vehicle (hereinafter referred to as ?the Firearm Incident?). File 2006-1916 grieves a 20 day suspension without pay he received for that incident. File 2006-1918 grieves the employer?s decision, upon his return from the suspension, to restrict the grievor to clerical duties, and to deny him his firearm, badge and duty belt. The employer has taken the position that the grievor will not be restored to full duties until his mental fitness to perform those duties is confirmed through an independent medical examination (?IME?) conducted by a medical practitioner designated by the employer. The grievor has refused to participate in an IME and remains on clerical duties pending the resolution of his grievance. The parties filed the following agreement: 1.The issue that the Board is now being asked to decide is whether the Employer was entitled in the circumstances to remove the Grievor from his full duties as a conservation officer and put him on office duties, duties that did not require him to carry a firearm and a badge. 2.The evidence before the Board in this part of the proceeding will be entered as evidence in subsequent proceedings on the matters before the Board relating to the Grievor. 3.The fact that the Employer led its evidence first was not a concession that the onus lies on the Employer on the issue before the Board in this part of the case. The question of onus will be addressed by both parties in argument. Neither party will object that the other party has in any way conceded its position on onus. The Employer will argue that onus lies with the Union. The Union will argue that it lies with the Employer. 4.The evidence led so far is to be applied to the Board?s consideration of the issue described in Paragraph 1. Any findings of fact by the Board in respect of the IME issue will be for purposes of the determination of that issue only. Either party may subsequently lead contradictory evidence and seek to persuade the Board to make 3 contradictory findings of fact. The Board will not be precluded from making findings of fact that are contradictory to findings made in this part of the proceeding. 5.Where evidence has been filed in the form of written statements without cross- examination, that evidence is accepted as true for purposes of the determination of the Paragraph 1 issue only. If the evidence in the statements is sought to be applied in subsequent proceedings, the Union may lead contradictory evidence without being met by an objection based on the rule in Browne and Dunn. Otherwise the rule in Browne and Dunn will apply. Article 44.9 of the collective agreement provides: Where, for reasons of health, an employee is frequently absent or unable to perform his or her duties, the Employer may require him or her to submit to a medical examination at the expense of the Employer. The dispute is whether, in all of the circumstances, the employer was entitled to resort to article 44.9 to require the grievor to submit to an IME and to restrict him to clerical duties until be complies. The employer?s position is that over a period of time going back to September 2003, the grievor has exhibited a pattern of aggressive, unresponsive and unpredictable behaviour, culminating in the firearm incident on July 9, 2006. That behaviour, when seen in its totality, raised a serious and reasonable concern about the grievor?s fitness to perform field duties, which requires him to carry a firearm, without posing a safety risk to himself, his fellow employees and members of the public. The grievor is one of seven COs working out of the Ministry?s Aurora District Office. He reported to Enforcement Supervisor, Mr. Bill Lafferty. Prior to the firearm incident in July 2006, the grievor performed regular duties of a CO, which consisted of approximately 75 percent field and 25 percent office duties. In carrying out field duties, a CO wears a side-arm (a Smith & Wesson 40 caliber semi-automatic), and a duty belt containing pepper spray, a collapsible baton and hand-cuffs. COs are peace officers who possess the power of arrest, including arrest under the Criminal Code, of a person committing any indictable offence. COs are trained, when faced with aggressive behaviour, to first attempt to verbally diffuse the situation. If that fails a CO is to resort to open-hand defensive tactics. If the situation escalates, the baton and pepper spray may 4 be utilized. The last resort is the use of the firearm. COs receive training on handling of the firearm. As part of it, they are taught that the firearm must always be stored unloaded in a locked box. The ammunition must be stored and locked separately. Mr. Lafferty testified that on July 10, 2006, he received a call from CO, Mr. Terry Medd, who requested him to contact CO, Mr. Doug Poirier, who had observed that the grievor had left his loaded firearm unattended in his unlocked Ministry vehicle. Mr. thth Poirier was off until July 14. On July 12 Mr. Lafferty confronted the grievor with the information he had received from Mr. Medd. According to Mr. Lafferty, the grievor?s response was to the effect that he had taken the ministry vehicle home, because he had worked late that night and did not have time to return the vehicle to the workplace. He told Mr. Lafferty that he had it parked in his driveway overnight, and that the vehicle had been locked. He stated that the firearm was kept locked in the trunk. Mr. Lafferty advised the grievor that the information he received was that the vehicle was left unlocked, and that he would be investigating. Mr. Lafferty testified that at the time he had several concerns. First, why the ministry vehicle was parked that night in the grievor?s driveway contrary to policy. Second, if the firearm was in the trunk and the vehicle itself was left unlocked, ?safe storage issues? arise. Third, even if the vehicle had been locked, there was a breach of policy which requires that a firearm must be secured in a special employer issued lockable box, before being locked in a trunk of a vehicle. Mr. Lafferty testified that in any event, the firearm should never have been left overnight in the vehicle. It should have been under lock and key inside the grievor?s residence. Mr. Lafferty testified about the information he subsequently received from Mr. Poirier, which was consistent in all material respects with Mr. Poirier?s own testimony before me. Since for the purposes of this decision Mr. Poirier?s version of what occurred remains uncontradicted, I set out only the facts based on his testimony, which are pertinent to the IME issue. On the morning of Sunday July 9, 2006 Mr. Poirier needed to have access to some papers, binoculars etc. which he had left in the trunk of the marked ministry vehicle he had been using. The grievor had borrowed that vehicle the previous 5 day. Mr. Poirier drove to the grievor?s residence to retrieve the material he needed. Upon arrival he observed the vehicle parked in the grievor?s driveway. As he was about to knock on the grievor?s door to ask the grievor for the keys, he noticed that the driver?s window was down partway. Because he was already late, he decided to simply get what he needed from the vehicle, without speaking to the grievor. As he approached the vehicle, he noticed condensation on the front and back windows, from which he concluded that the vehicle had sat there for some time. He tried the driver side door. It was not locked. As he popped the trunk open, the grievor appeared at an upstairs window, wearing only boxers, and asked what Mr. Poirier was doing. Mr. Poirier told the grievor that he was getting his ?stuff? from the car. The grievor stated that he had just dropped in at home to get a little breakfast. Mr. Poirier responded, ?I don?t believe you. You haven?t even started work yet.? The grievor replied, ?You got me there buddy. But I am just getting ready. I?ll be in shortly?. When Mr. Poirier opened the trunk to get his things, he noticed the grievor?s firearm, and ?his whole duty belt? in the trunk. Mr. Poirier was shocked when he saw that the gun had a magazine in it. He quickly grabbed his things and left. Mr. Poirier testified that he was unsure what he should do. On the one hand, he felt obliged to report what he had seen. On the other hand, he was concerned that he would be accused of getting the grievor in trouble. That day he attended a ministry event at the Toronto Island. He mentioned about his observation to the ministry official in charge of the event, Mr. Shawn Berge. Later he also spoke to his wife. He also mentioned it to CO Medd and asked him to keep it confidential. Then he went camping for a few days on his days off. While returning from camping, he saw a message from Mr. Lafferty on his cellular phone. When he called back, Mr. Lafferty directed him to meet with him the following day. When Mr. Poirier met with Mr. Lafferty, he reported what he had observed. Mr. Lafferty informed Mr. Poirier that he was very disappointed that he had not reported his observation directly, and directed him to submit a written statement. The following day, Mr. Poirier accompanied Mr. Lafferty to the York Regional Police and made a report. 6 Mr. Lafferty testified that on July 14, 2006, the grievor came into his office. He explained that he had started work early morning on the day in question, and had ?just stopped by at home to get something?. Mr. Lafferty pointed out to the grievor that he had previously given him a different story, and stated that he did not wish to discuss the matter until he had received Mr. Poirier?s written statement. Later the same day, the grievor came in to see Mr. Lafferty again. Mr. Lafferty related to the grievor Mr. Poirier?s version of what occurred as set out in his written statement. At that point the th grievor stated that after the shift on July 8, he had gone to a friend?s house in the ministry vehicle. There was a birthday party for the grievor that night at the friend?s place. He had too much to drink at the party and did not want to drive home. He slept at his friend?s, got up early, and drove the vehicle home. Mr. Lafferty at this point directed the grievor to surrender his firearm, and advised him that he was suspended for 10 days with pay pending further investigation. Subsequently Mr. Lafferty imposed a 20 day suspension without pay on the grievor for the firearm incident. Mr. Lafferty testified that the grievor had consistently maintained that the vehicle was locked. When asked how then Mr. Poirier managed to open the vehicle, the grievor had first stated that he had given the car keys to Mr. Poirier. At a later point, the grievor had stated that Mr. Poirier must have obtained the spare key which is kept in Mr. Lafferty?s office. Still later, the grievor gave a third explanation, that Mr. Poirier must have had a key made. Mr. Lafferty met with the grievor and a union representative prior to issuing the letter of suspension. At this meeting Mr. Lafferty requested the grievor to attend an IME because Mr. Lafferty was concerned that health issues may be causing his ?recent behaviour?. He showed the grievor the letter and attachments that would go to the doctor, Dr. David Hoath, and expressed his willingness to await the results of the IME before making a decision on discipline. However the grievor refused to attend the proposed IME. 7 The letter of suspension dated September 21, 2006 reads: Following the discipline meeting held on August 31, 2006, which you attended with your Union Representative, Glenn Jones, the Ministry of Natural Resources (MNR), has completed its investigation into your conduct on July 9, 2006. The investigation focused on your actions relating to improper use of an MNR vehicle and unsafe storage of your firearm and equipment. During this meeting we advised you of our concerns regarding your behaviour and actions as they pertain to this and other recent incidents. We also discussed the possibility that a health-related matter may be causing or contributing to this conduct. As a result, you were offered a referral to a medical practitioner to undergo an assessment. We were prepared to wait for the results of this assessment before concluding our investigation into this matter, however, you refused to participate in the independent medical examination. Therefore, we were able to complete our investigation and have determined that, on July 9, 2006, after work hours, you took an MNR vehicle from the workplace, drove it to a party and then to your residence for the night. In addition, your vehicle was left unlocked overnight resulting in the unsafe storage of your firearm and equipment. This action was in contravention of my direction to you that MNR vehicles are to remain at the Ministry office and are not to be parked at your residence. Further, your failure to ensure the secure storage of your firearm and equipment posed a significant public safety risk and is unacceptable. It is also in violation of MNR Policy COS 6.11.02 page 6 Paragraph 1(c) on safe storage of MNR issued fire arms and ammunition. I have concluded that you engaged in a serious misconduct which failed to meet our expected standards and was in breach of MNR policies and practices. As a result, in accordance with s. 22(2) of the Public Service Act, you are hereby suspended from employment for 20 working days without pay starting September 22, 2006 and ending on October 19, 2006. This letter of suspension will be placed on your personnel file. This type of behaviour and performance is unacceptable and must cease immediately. Please be advised that any further incidents of a similar nature may be subject to further discipline, up to and including dismissal. One of the attachments to the proposed letter of referral to Dr. Hoath was a document referred to as ?the 11 page document?. It set out Mr. Lafferty?s understanding 8 of the behaviour exhibited by the grievor on five separate dates, as reported by employees who observed that behaviour. Also attached were copies of notes made by those employees. On August 1, 2006, Mr. Lafferty wrote the following letter to the grievor: As a result of ongoing performance issues we are concerned about your continued ability to carry out the full duties of a Conservation Officer. The ministry?s policy is to support employees who may be having medical issues that are potentially affecting their ability to do their job and meet job-related requirements. At this point in time, as your employer, we are seeking an Independent Medical Assessment of you by Dr. David Hoath, as indicated in the attached Consent Form. This request is being made in accordance with Article 44.9 of the OPSEU Collective Agreement that states the following, ?Where, for reasons of health, an employee is frequently absent or unable to perform his or her duties, the Employer may require him or her to submit to a medical examination at the expense of the Employer?. Any and all information that is provided by Dr. David Hoath will be kept strictly confidential. Once you have signed the attached consent form, I will contact Dr. Hoath to arrange for an appropriate assessment date. If you have any questions about this request for an Independent Medical Assessment, please contact me at 905-713-7373. The grievor continued to refuse to submit to the proposed IME. Mr. Lafferty testified that in requiring an IME under article 44.9, he relied upon information he had about past incidents of inappropriate behaviour by the grievor, in addition to the firearm incident. Mr. Lafferty testified that when he arrived at the Aurora Office in March 2004, he noticed friction between the grievor and other COs in the office. He noted that the grievor had been excluded from working on teams, particularly on fish runs. He asked CO Medd for an explanation. Mr. Medd responded that due to certain behaviour exhibited by the grievor during a training course in Dorsett, Ontario in September 2003, the COs had health and safety concerns working with the grievor. Mr. Lafferty made inquiries from Mr. Alan Sullivan, Supervisor, Intelligence and Investigation Section, about the incident referred to by Mr. Medd (?the Dorsett incident?). Mr. Sullivan forwarded to him notes made by employees at the time. The written statements by Mr. 9 Alan Sullivan, CO Mr. Ken Snowden, CO Mr. Denis Beauvais, and CO Mr. Mark Halley detail their observations of the grievor?s behaviour during the Dorsett training course. These statements were filed in evidence on the agreement of the parties that they may be treated like evidence tendered under oath without any cross-examination. It is sufficient to observe that the evidence discloses that the grievor exhibited psychotic and paranoid behaviour, including stating that there was a wall across the highway which he could not drive through, appearing to be confused, heavy breathing, not responding to fellow workers? attempts to talk to him, pacing up and down the hallway all night without sleeping. There is no question based on the evidence that the grievor?s behaviour at Dorsett was strange and erratic. In fact, Mr. Lafferty testified that the grievor told him that he had suffered a breakdown as a result of his girl-friend leaving him, and that he had ?lost it? at the training course. He also advised that he was getting medical treatment. Mr. Lafferty testified under cross-examination that he accepted what the grievor had told him in explaining his behaviour at Dorsett. The grievor was off on sick leave for a few days following the incident and returned to work without any restrictions. The proposed letter of referral to the doctor had several attachments to it, including the grievor?s job description, consent to release information form signed by the grievor, and the 11 page document, which consisted of a summary of five separate incidents involving the grievor, and supporting statements prepared by witnesses. The letter to the doctor reads: We are requesting your assistance in carrying out an assessment on Mr. Ian Magee, a Conservation Officer with the Ministry of Natural Resources. Mr. Magee has been employed in this capacity for seven years. Over the past three years a number of incidents have occurred which have resulted in Mr. Magee being unable to carry out the full duties of his position. The information contained herein relates to the history of the behavioural issues pertaining to Mr. Magee. Also included to give you a fuller appreciation of his role is his current job description, along with a ?Consent to Release Information? form signed by the employee. 10 The 11 page document entitled ?Ian T. Magee History? is a reflection of some of the concerns the Ministry has had over the last 3 years. While anecdotal in nature and subject to further investigation to verify the factual content, it does reasonably convey the nature of the concerns which have prompted the ministry to initiate this assessment at this time. The information which you provide to us will be treated in the strictest of confidence. Once you have completed your assessment we will be available at your convenience to discuss your findings. Thank you for your assistance in this matter. If you have any questions please contact me at (905) 713-7373. The five incidents were set out as follows in the 11 page document: Ian T. Magee History The following are examples of some incidents involving Ian March, 2004 Three of the Conservation Officers stated that they refused to work with Ian based on health and safety issues. Reason being an incident happened back in September, 2003 where Ian while on training course demonstrated very unusual behaviour and they felt it was never dealt with properly by management (see attachments referenced below for details of incident). I talked to the District Manager about this issue and he advised that as a result, Ian?s fire arm was taken away from him for a short period of time not certain of the exact length by his then supervisor. The District Manager advised me that Ian reportedly went to his doctor and the supervisor was advised by Ian that he was fine. Ian was then put back in the field on regular duties. In the early part of May I became concerned about Ian and the tension at the Aurora office and asked the Officer in charge of the September 03 course in Dorset to send me any information he had pertaining to the incident that occurred with Ian. I also spoke with Ian at this time regarding the incident and he advised me that his girlfriend had just broken up with him and he had, in his words, lost it. Notes completed by respective officers at the training session are attached and indicated as Attachments I, II, III and IV at the end of this History. October 6, 2005 Ian became very upset with two of the Conservation Officers at the Aurora District Office. The officers reported that they had made arrangements to 11 use Ian?s MNR car and noticed some damage. They decided to take a picture of the damage to mitigate them from responsibility. Ian happened to observe one of the officers taking the picture and became extremely agitated and threatened the Officer verbally and was making physical gestures as if he was going to hit the officer. Ian reportedly stated ?I ought to take the boots to you?. This was done while waving his fist in the Officer?s face. Ian then came into the office and began yelling at the second officer calling him names while having his fists clenched in such a manner that the Officer was certain that Ian was going to hit him. The incident was investigated and as a result his fire arm and badge were taken away and he was put on a three day suspension without pay. The firearm remained in the supervisor?s possession until the beginning of January 06, Ian was also assigned office duties and agreed to seek assistance from the Government?s Employee Assistance Program. Ian later advised that he had called the EAP and had two sessions with a counselor and was told he was fine. Ian was put back on field duties the beginning of January 2006. March 30, 2006 Ian had gone to the Government Information Centre (GIC) counter, which is located within the same building as MNR requesting a map of the province. He was advised by a GIC staff member that there were no maps other than the one used by the counter staff. Ian proceeded to open the gate, which closes off the counter to the public, and went into the back room to find the map himself. He was asked by the GIC staff to leave and advised he had no business being in the back room of the GIC counter. Despite the request Ian took the map and left. Ian returned to the counter about 10 minutes later, let himself in again and proceeded to enter the back GIC offices. Ian was again told by a GIC staff member to leave. Ian became loud and abusive telling the same GIC staff member that she was a trouble maker and to mind her own business. He continued on like this for a few minutes. When the GIC staff member warned Ian that his manager would be notified he left. After an investigation by me, Ian was reprimanded and instructed not to attend the front counter unless he was asked a specific question by GIC staff. While investigating the GIC counter incident of March 30, 2006, the GIC counter supervisor advised me of an incident she had with Ian last November ?05. Ian apparently was trying to talk to one of the GIC counter members while they were doing training. The GIC counter supervisor asked Ian to leave as he was bothering the staff, he did not respond until another GIC counter member assured him that this was her supervisor and he had better leave which he did immediately. 12 April 2006 During the first week of a new employee?s contract Ian told her that he hated two of the Aurora District?s Conservation Officers. The new employee was very upset with this and didn?t know what to say. th On April 12 after the new employee returned from an occurrence with one of these Officers, Ian went into her office and asked what happened on the occurrence. The employee replied that Ian should talk to the other Officer as he had made all the notes. Ian got agitated and started to walk out of her office and then returned immediately and gestured towards the two CO officers and stated: I don?t trust those two fucking guys?. In a meeting I had with Ian about this issue he admitted to saying this but stated that he did not say ?fucking? Ian was given a verbal reprimand by his supervisor and told that this was creating a poisoned work environment and he was not acting in a professional manner. July 9, 2006 On Monday July 10, 2006, I received information that Ian had left his fire arm unattended in an unlocked vehicle. When I confronted Ian about this he stated that he had finished his shift late at night and had taken the MNR vehicle home and had locked his duty belt with loaded firearm in the trunk of the car and the car was locked. The Conservation Officer who had discovered the fire arm advised me that th on Sunday July 9 he came into the office to pick up a MNR car only to find that it was not at the office. Ian had the vehicle the previous day so the Officer assumed it was at Ian?s residence. Upon arrival at Ian?s residence the MNR vehicle was parked there with front windows half way down and moisture had formed on the inside of the front and back windows. The Officer opened the car as it was unlocked and pressed the trunk release button. When he went into the trunk to get his paper work he noticed Ian?s duty belt lying in the trunk with the gun in the holster, the magazine in the gun along with the magazines in his duty belt. At this point Ian appeared from one of his residence windows and asked him what he was doing. He advised Ian that he was getting his stuff out of the trunk and then Ian said he was working and had just stopped in to his residence to get a bit to eat. The Officer observed that Ian was in his boxer shorts with nothing else on. The Officer inferred to Ian that he was lying and Ian replied OK you got me buddy at which point the Officer left the scene. I confronted Ian with the Officer?s version on Friday July 14, 2006. Ian was then suspended with pay for a minimum of 10 days and to turn in his firearm, badge, credits cards, pass card and keys to the building and spare vehicle 13 keys. It took me almost an hour to complete this task as Ian was being argumentative and very slow about following the direction he was given. When asked about the incident Ian gave various stories at various times, each one a different version. Below are some examples of the questions asked and the different responses given. Mr. Lafferty testified about the past incidents which caused him concern. About the ?parking lot incident? of October 6, 2005, he stated that at the time the grievor and Mr. Poirier shared the use of a ministry vehicle. CO Mr. Mark Russell made a complaint that on October 6, 2005, Mr. Russell and Mr. Poirier had proceeded to the Ministry parking lot, where Mr. Poirier was to take over the vehicle which the grievor had been using. They noticed that the vehicle had significant damage and Mr. Poirier expressed concern that he may be held responsible. Mr. Russell offered to take some photographs of the damage with his camera and Mr. Poirier agreed. Mr. Russell informed Mr. Lafferty, that while he was taking the photographs, the grievor approached them. He was very upset, was waving his fists in the air and threatened Mr. Russell saying, ?I ought to put the boots to you?. Mr. Poirier reported to Mr. Lafferty that later the grievor approached him in the office, and threatened him also, calling him ?sneaky?. Mr. Poirier had reported that the grievor was very aggressive, and that Mr. Poirier was concerned that the grievor would hit him. Mr. Lafferty testified that the grievor later complained to him about Mr. Russell taking the photographs of the damage to the car. When Mr. Lafferty responded that he did not see anything wrong in what Mr. Russell did, the grievor acknowledged that he had lost his temper, and that he should not have acted as he did. However, he denied that he made the alleged threats. Following a more formal meeting with a union steward in attendance, on October 18, 2005, Mr. Lafferty wrote to the grievor offering him the following options: 1.To turn in your firearm to me immediately and be placed on three days suspension without pay. Upon returning to work you would be assigned to office duties. Your would be sent on an Anger Management Program/Course and would remain on modified duties until the Ministry 14 of Natural Resources was satisfied that you could carry out your regular duties as a Conservation Officer. 2.To turn in your firearm to me immediately and be placed on three days suspension without pay. Seek immediate assistance from the Employee Assistance Program; be placed on assigned office duties. You will return to your regular duties as a Conservation Officer when the Ministry is satisfied that you could do so. You were also advised that we are willing to assist you as best we can through this process. The grievor chose option 2. Upon his return from the suspension he attended sessions with the Employee Assistance Program. For approximately 2 to 3 weeks, he was restricted to modified duties, which did not include field duties. Mr. Lafferty testified that he was pleased with the grievor?s recognition that he had an anger problem, and that he needed assistance. On December 13, 2005, Mr. Lafferty wrote the following letter to the grievor: As discussed at our meeting today, I am encouraged by the efforts you are making regarding seeking counseling and also in completing the tasks that have been assigned to you while in the office. I also mentioned that I have noticed your attempts to rebuild relationships with you peers in the Aurora District Office. As I stated I can not expect everyone to be friends but I can expect professional conduct at all times by everyone. I would like you to resume active field duties effective January 03, 2006 and continue to conduct yourself in a professional manner in and outside of the office. The incident of October 6, 2005 will be kept on file for the required 3 years and then destroyed providing there are no similar reoccurrences within that period of time. Any reoccurrence of unprofessional behaviour will result in further disciplinary action as indicated in the letter of October 18, 2005. Keep up the good work Ian and thank you. When asked by employer counsel why the parking lot incident caused him concern, Mr. Lafferty replied that he felt ?that there was extreme over-reaction by the grievor in the situation, which caused concern about his ability to control his temper.? 15 On March 30, 2006 Mr. Lafferty received a complaint about the grievor from Ms. Manom Blois, an employee of the Government Information Centre (?GIC?) an organization operated by the Ministry of Government Services, which had a counter in the lobby of the building where the grievor?s office was located. Ms. Blois reported that the grievor came to the GIC counter and requested a map of Ontario. She told him that maps were out of stock and that the few they had were needed for use by GIC staff. She reported that the grievor went through the swing gate, picked up a map from behind the counter, and left. Shortly after Ms. Blois observed the grievor behind the GIC counter again. When Ms. Blois told him that he was not allowed there, the grievor got agitated. The grievor stated that he could do whatever he wanted, and left. Mr. Lafferty confronted the grievor with the complaint made by Ms. Blois. The grievor explained that he had been given permission by another GIC employee, Ms. Robin Taylor, to go behind that counter. When Mr. Lafferty inquired, Ms. Taylor vehemently denied that she gave permission. The grievor received a verbal reprimand for this incident, and was directed not to go behind the GIC counter again. Mr. Lafferty testified about information he received in April 2006 from a ministry employee, Ms. April Hannah, an Enforcement Intern. She reported that the grievor had told her that he hated COs Mark Russell and Paul Malaguti. She also related an incident where she had accompanied Mr. Malaguti on a field investigation. Upon her return to the office, the grievor asked her what occurred on the field outing. She told him to ask Mr. Malaguti because he was the officer in charge. Ms. Hannah reported that the grievor had been ?slightly agitated? by her response. Shortly after, the grievor returned, and pointing to the offices of Mr. Malaguti and Mr. Russell, stated ?I hate those two fucking guys and I don?t trust them?. Ms. Hannah reported that she was upset about these events and did not know what to do. When Mr. Lafferty confronted the grievor, he basically admitted Ms. Hannah?s version of what occurred, but denied using any profanity. The grievor received a verbal reprimand. Mr. Lafferty testified that the grievor?s conduct was not acceptable for a person in his position and caused him concern. 16 Employer counsel asked Mr. Lafferty why the past incidents and the firearm incident caused him to decide that the grievor should no longer carry a firearm. Mr. Lafferty replied, ?These events speak to his inability to make rational decisions. That perhaps he has some issues with anger. I am not an expert. But a conservation officer is like a police officer and needs to have control of emotions at all times?. When asked ?why?, Mr. Lafferty replied, ?Because he is carrying weapons of lethal force. If he is not in control, perhaps they can be used inappropriately. His leaving the gun in an unlocked vehicle gave me further concern?. When asked why he decided to require an IME, Mr. Lafferty said, ?I just felt that if there were issues about his mental state, it would be in everyone?s interest to have them identified and remedied, in order to enable him to work safely?. Mr. Lafferty testified that he had a conference call with a number of people to discuss his concerns about the grievor. He believed that it was someone from ?Human Resources? who suggested that one option was to require the grievor to undergo a psychiatric examination. Based on that suggestion he decided to resort to article 44.9. Mr. Lafferty agreed under cross-examination that he did not at any time show the witness statements about the Dorsett incident to the grievor. Nor did he ask the grievor for an explanation for his conduct. However, he reiterated that the grievor volunteered the information that he had a ?breakdown? during the Dorsett training and that the breakdown was a result of his girl-friend leaving him. Mr. Lafferty agreed that as far as he was aware, the grievor had not exhibited any ?outburst? prior to the parking lot incident in October, 2005. Nor was he aware of any prior discipline. Mr. Poirier testified that following the incident at the parking lot, the grievor came to his office and asked for the car keys. When Mr. Poirier told him that he was still using the car, the grievor stated that Mr. Poirier should ask for someone else?s car. Mr. Poirier repeated that he was still using the car. The grievor got angry. Mr. Poirier testified, 17 ?This is not a quote but he said something like you are a fucking sneaky bastard. It was said very quietly but aggressively. He showed signs of anger. Red face, eyes were glossed over almost. I felt threatened at this point. He was right in my face, possibly 5 or 10 inches away. I told him, not loudly, to back-off?. He still stood there. I yelled ?back off? louder. He took two steps back, called me ?a little sneak? and told me he was going to call our supervisor, and make sure I couldn?t use his car. Then he left? Mr. Poirier testified that shortly after, the grievor returned. According to Mr. Poirier, by then the grievor had ?calmed down somewhat?, and apologized for what happened. Poirier told the grievor that he had been ?out of line?. Mr. Poirier testified that at the time, he was still living at the grievor?s residence on rent. Up until that incident he had got along very well with the grievor. However, he spent that night at another co-worker?s house in order to avoid any further confrontation with the grievor. Mr. Russell testified that when the grievor confronted him at the parking lot, the grievor asked what he was doing. Mr. Russell replied that he was taking some pictures of the damage on the car, so Mr. Poirier will not be accused of causing the damage. The grievor mumbled something under his breath. The grievor ?then lost it?. In a very angry and threatening tone, he told Mr. Russell, ?I ought to put the boots to you right now?. He was staring at Mr. Russell. He had ?somewhat glazed eyes?. According to Mr. Russell, the grievor at that point exhibited all the signs of aggression COs are taught to look out for. His face was red, he was frothing at the mouth, was spitting, hands were clenched and his veins were popping out. The grievor then said ?I ought to deck you right here? and repeated, ?I should put the boots to you?, and telegraphed a kick in the air. As Mr. Russell walked towards the office, the grievor yelled that he was going to see Mr. Tracy Smith and said ?Tim Boyd told me to watch out for you?. Onus of proof While there was disagreement between the parties as to where the legal onus lies, it is not necessary for me to determine that issue. For purposes of this particular decision with respect to the employer?s entitlement to require an IME, the union elected not to call 18 any evidence to contradict the employer?s evidence. Thus, the employer?s evidence is in all material respects uncontradicted. I am thus called upon to determine whether the employer was entitled to require an IME under article 44.9 based on that uncontradicted evidence. In the absence of any dispute on the facts (at least for purposes of this decision) the issue of onus does not come into play. See, Re School District No. 39 th (Vancouver) (1966), 53 L.A.C. (4) 33 (Hope). DECISION Article 44.9 entitles the employer to require that the grievor submit to a medical examination, inter alia, if he is ?unable to perform his duties?. However, for article 44.9 to have applicability, that inability to perform duties, must be ?for reasons for health?. Therefore, the issue is whether, based on the evidence before me, the grievor was unable to perform the field duties of a CO, and if so, whether that inability was for reasons of health. It is important to note that the employer had no general concern about the grievor?s abilities or qualifications to function as a CO. Its sole concern was about his fitness to engage in CO field duties which required him to carry weapons, primarily the firearm. The employer?s position was that it had a reasonable concern in that regard because of the incidents which have been reviewed above. I note that during his opening remarks, union counsel, Mr. Leeb, suggested that there may have been bad faith and an ulterior motive, in the employer?s decision to require that the grievor submit to an IME. However, during final submissions, union counsel, Mr. Brewin, explicitly conceded that Mr. Lafferty, who effectively made the decision, acted in good faith. The union?s position essentially was that in light of the information available to him, Mr. Lafferty?s concern about the potential safety risks was unreasonable and unfounded. 19 It is also to be noted that in the present case, the grievor was not disciplined for his refusal to submit to an IME. While the grievor was disciplined for the firearm incident itself (and some of the prior incidents), the union did not assert that the denial of full duties to the grievor was disciplinary in nature. Therefore, the sole issue in this proceeding is the interpretation and application of article 44.9. In order to conclude that the employer was entitled to require an IME, I need not be convinced on a balance of probabilities that the grievor?s inability to perform duties, if that is so, is due to health reasons. Such a standard does not make sense, since the very purpose of article 44.9 is to allow the employer to obtain an expert opinion from a medical professional on the very issue of the grievor?s health. It would be almost impossible for an employer to prove on a balance of probabilities that an employee?s conduct is due to health reasons, when it had been denied access to a medical opinion. The parties could not have intended that, despite their choice of words, ?where ? for reasons of health ?, an employee is, ? unable to perform his or her duties?. Arbitral jurisprudence has addressed the standard to be met. Obviously, the entitlement of an employer under article 44.9 would depend on the particular facts. The parties would not have envisaged that merely because an employer sincerely believed that an employee was unable to perform his or her duties due to health reasons, that by itself entitles it to act pursuant to article 44.9. Some objective standard must be met before an employer is entitled to resort to the provision. That is so, despite the fact that this collective agreement makes specific provision for medical examinations. th In Re Brinks Canada Ltd., (1994) 41 L.A.C (4) 422 (Stewart), the arbitrator used the standard of ?reasonable and probable grounds?, citing the decisions in Re Studebaker- Packard of Canada Ltd. and U.A.W., Local 525, (1960), 11 L.A.C. 189 (Cross); Re Eaton Automotive Canada Ltd. and U.A.W. Local 27, (1969), 20 L.A.C. 218 (Palmer); Re Firestone Tire & Rubber Co. of Canada Ltd. and United Rubber Workers, Local 113, (1973), 3 L.AC. (2d) 12 (Weatherill). 20 At p. 430, arbitrator Stewart observed: The issue to be determined is whether in the particular circumstances of this case, reasonable and probable grounds existed for the employer to require that Mr. Matchett attend for a psychiatric evaluation by Dr. Margulies. In considering this matter I agree with Mr. Riendeau?s submission that considerable weight must be given to the fact that Mr. Matchett is equipped with a firearm in the course of his employment. The employer is clearly justified in exercising utmost care in ensuring that an employee is mentally able to deal with that responsibility and to take steps to satisfy itself in this regard. However, an employee?s right to privacy must be taken into account and must not be unnecessarily or unduly interfered with, particularly in connection with a psychiatric assessment. (Emphasis added) In Re Howe/Dalton/Loach, 3155/92 (Dissanayake), in a case where the employer had sought an order that the grievor undergo a psychiatric examination, the Board observed at p. 12 as follows: In weighing the factors in favour of and against the ordering of a psychiatric examination, the nature of this case must be given due consideration. Medical examinations of any type are necessarily intrusive of the person?s privacy. Psychiatric examinations are no exception. Indeed, psychiatric examinations may have a more traumatic effect on the subject than physical examinations or blood tests. That by itself is a very good reason not to direct psychiatric examinations except where there are extremely compelling reasons for doing so. The cases cited above are distinguishable from the present case to the extent that in those the employer was not purporting to exercise a specific collective agreement right to require an IME. Nevertheless, the considerations and standards applied are still relevant. Here also, the employer has required the grievor to submit to a psychiatric examination. That should be kept in mind in balancing the privacy rights of the grievor with the legitimate interest of the employer in safety. The parties have not specified in article 44.9 the standard the employer has to meet, before concluding that a particular employee is unable to perform his duties for reasons of health. However, as I have already concluded, the employer must be held to some objective standard. Given the particularly intrusive nature of a psychiatric examination, I conclude that the standard of 21 ?reasonable and probable grounds? is the appropriate standard. That is, the Board must be satisfied, based on the evidence as to the information the employer had at the time, that it had reasonable and probable grounds to be concerned that the grievor was unable to perform the field duties due to reasons of his mental health. Mr. Lafferty was the individual who decided to require the IME under article 44.9. His sole concern was about safety. He made it clear during testimony that based on the past incidents, and particularly the firearm incident in July 2006, he had doubts about the grievor?s fitness to carry out duties requiring the carrying of a firearm, without exposing himself, his co-workers, and the public to undue safety risks. He was concerned that the grievor may use what he called ?weapons of lethal force? inappropriately with drastic consequences. The issue then is whether the information Mr. Lafferty had at the time, seen objectively, would constitute reasonable and probable grounds leading to such a concern. After a very careful review of the evidence about the ?past incidents? and the culminating ?firearm incident? of July 2006, I have concluded that no reasonable and probable grounds existed to be concerned that the grievor was unfit to carry a firearm due to mental health reasons. The Dorsett incident in September 2003 certainly involved psychotic and strange behaviour on the part of the grievor suggesting mental instability. In fact, the evidence is that the grievor himself admitted to his manager that he had a ?breakdown?. He also advised his manager that the breakdown was caused by the stress of his girl-friend leaving him. He received medical treatment for his illness at the time. The evidence is that the manager accepted the fact that the grievor had suffered a breakdown, and that he received treatment. His firearm was taken away for a period, but was returned to him after his physician declared him fit. Therefore, the gist of this evidence is that almost 3 years earlier, the grievor had a breakdown triggered by a specific stressful event in his personal life, he received treatment and was declared fully recovered. There is no 22 evidence that the grievor had any relapse of that condition, or that the grievor ever repeated the type of psychotic behaviour he had exhibited in September 2003. The other ?past incidents? the Board heard about all involve the grievor losing his temper when someone said or did something he did not agree with. In all of those circumstances, based on the evidence presently before the Board, the grievor appears to have lost his temper and exhibited verbal aggression towards others without justification. Moreover, he fabricated explanations to cover up his misconduct. It was culpable conduct for which he was disciplined. For the parking lot incident where he verbally abused and threatened two of his co-workers, he was suspended without pay for 3 days and received counseling under the employee assistance program. Similarly, the GIC counter incident is a further instance of the grievor losing his temper when he did not have his way. He unreasonably and unnecessarily subjected a GIC employee to a verbal abuse. He was disciplined by way of a verbal reprimand for this incident. In the incident in April 2006 involving Ms. April Hannah, the grievor verbally expressed to her, his dislike of two of his co-workers. Again, whatever differences he may have had with those co-workers, his behaviour was unprofessional and unwarranted. He again lost his temper when Ms. Hannah declined to provide the information he sought. He received a verbal reprimand for this conduct also. The grievor?s conduct in the foregoing incidents was described by Mr. Lafferty in the documentation, as well as during his testimony, as ?unprofessional?, ?overreaction? and as ?an inability to control his temper?. I agree with those characterizations. However, while the grievor has demonstrated a propensity to lose his temper without justification, in each case his anger was manifested by lashing out verbally. While he made verbal threats, he has not resorted to physical aggression like pushing, striking or assaulting. Nor is there any suggestion that he has given the slightest indication that he may use his firearm. It must be remembered that article 44.9 allows an IME only where the inability to perform duties is ?by reason of health?. It is evident that the employer considered that the grievor?s conduct at Dorsett was caused by reasons of health. Thus 23 the grievor was not disciplined, but his firearm was taken away. He returned to full duties following medical treatment. was In contrast, for each of the other incidents, the grievor disciplined. Therefore, the employer must have concluded at the time that the conduct was culpable. If conduct is culpable and worthy of discipline, it could not have been caused by reasons of health. Conduct cannot be both culpable and be ?for reason of health?. It is not open to an employer to discipline an employee for his conduct, and at the same time assert that it had cause to believe that the same conduct was the result of a health condition. Therefore, what the evidence indicates is that the parking lot, GIC counter, and April Hannah incidents involved, and were seen by the employer to involve, culpable conduct on the part of the grievor, not blameless conduct brought on due to reasons of health. During final submissions employer counsel referred to the firearm incident as ?the final straw for the employer?. That incident did involve the firearm. However, the issue was the risks created by improper and unsafe storage of the firearm. It did not involve any aggressive behaviour by the grievor, verbal or physical. He simply failed to follow the mandated policies for storage of the firearm and ammunition etc. Then he attempted to cover up his failure to follow policy, by providing different and conflicting explanations. The employer considered the grievor?s failure to follow the storage policy, and his failure to accept responsibility, to be ?serious misconduct? and imposed relatively severe discipline of 20 days without pay. Again, if the employer had reason to believe that the grievor?s conduct was a result of a medical condition, it could not, and would not, have disciplined the grievor. It is not open for the employer to take the position that it had reasonable and probable cause to believe that the grievor?s conduct was a result of a health issue, and at the same time discipline the grievor for engaging in ?serious misconduct?. It is my conclusion that the grievor?s conduct in the past incidents does not constitute reasonable and probable grounds to believe that the grievor may have some 24 mental health issue which may cause him to subject his fellow-workers or members of the public to undue risk as a result of his possessing a firearm while on field duties. On an objective review of the evidence, I conclude that the grievor?s behaviour in all of the incidents, (except the 2003 September episode in Dorsett) is indicative of culpable conduct, not blameless conduct resulting from a health condition. The employer appears to have come to the same conclusion at the time, judging from the disciplinary responses it deemed appropriate to impose. In summary, the evidence does not establish that there were reasonable and probable grounds for the employer to be concerned that the grievor was unable to perform full field duties as a CO by reason of health. Therefore, the employer did not in the circumstances meet the conditions of article 44.9 to be entitled to require that the grievor submit to an IME. The employer is therefore directed to cease its requirement that the grievor submit to an IME, and to forthwith restore him to full duties of a CO. I remain seized of all outstanding matters that arise from these grievances. th Dated this 20 day of May, 2008 at Toronto, Ontario. Nimal Dissanayake Vice-Chairperson