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HomeMy WebLinkAboutFitzsimmons 09-02-04 1/7/1 5' /i .' I.", i / j' f/! f12/ If I~f IN THE MATTER OF THE LABOUR RELATIONS ACT AND IN THE MATTER OF AN ARBITRATION AND IN THE MATTER OF THE GRIEVANCE OF SHAUN FITZSIMMONS BET WEE N: ROYAL CITY AMBULANCE SERVICE LTD. the "EMPLOYER" - and - ONTARIO PUBLIC SERVICE EMPLOYEES UNION, LOCAL 231 the "UNION" SOLE ARBITRATOR: Richard L, Verity, Q.C. FOR THE EMPLOYER: B. R. Baldwin Counsel - Mathews Dinsdale and Clark LLP President - Royal City Ambulance Service Ltd. Director of Administration - Royal City Ambulance Service Ltd. Director of Operations - Royal City Ambulance Service Ltd. Harry HHchon Allan Arneill Sandy Smith FOR THE UNION: Muneeza Sheikh Garritt Fitgerald John H. Kirkconnell Shaun Fitzsimmons Grievance Officer Union Steward President, Local 231 Grievor HEARING: June 23, 2008 Guelph, Ontario -2- INTERIM AWARD In a grievance dated October 11,2007, the grievor, Shaun Fitzsimmons, a primary care paramedic employed since 1997 by Royal City Ambulance Service Limited, claimed that he had been unjustly disciplined by the imposition of a two day suspension for alleged insubordination which occurred on July 12, 2007. The griever was issued a two day suspension without pay on October 2,2007. By way of preliminary objection, the union contended that the employer violated article 13.01 of the collective agreement by its failure to adhere to the mandatory time limits set out in the collective agreement and therefore that the discipline imposed was void ab initio. After the motion was argued on the first day of the hearing, I reserved jurisdiction on the preliminary matter in order to obtain the benefit of oral testimony. The facts of the preliminary matter are not in dispute: (1) A verbal exchange took place between the griever and an oncoming supervisor, Leanne Swantko, at 110" station in Guelph at 7:30 am on the morning of July 12,2007. The matter arose after Supervisor Swantko issued a direct order to the grievor and his partner Stephen Foster to wash the ambulance vehicle that they had used on their shift. -3- (2) The verbal exchange sufficiently upset Supervisor Swantko that she telephoned her supervisor, Director of Operations Sandy Smith within an hour of its occurrence. ML Smith requested Supervisor Swantko to file an incident report which she did on July 12 (Exhibit 6). Mr. Smith was advised by Ms. Swantko that the exchange had been witnessed by Paramedic Emily Jong and Supervisor Rob Hill. Mr. Smith promptly requested that both witnesses file incident reports (Exhibits 7 and 8). (3) Director of Operations Sandy Smith spoke to the grievor at 7:30 am at "0" station the following day (July 13). Mr. Smith advised the grievor that he wanted to speak to him on his next scheduled shift which was Monday, July 16, and that the grievor should arrange to have a union steward in attendance. When asked what the meeting was about, Mr. Smith replied that the meeting related to "an incident involving insubordination". When the grievor asked "is this about yesterday?", ML Smith replied "yes" (Exhibit 9). The grievor then asked "only about yesterday?" to which Mr. Smith replied f1correct". (4) Later that morning, the grievor approached Mr. Smith with the request that he (Smith) provide a written direction requiring the grievor to attend the meeting the following Monday. Mr. Smith sent a handwritten notice to the grievor on Royal City Ambulance letterhead (Exhibit 4): July 13, 2007 To: S. Fitzsimmons You are required to meet with me 0900 hours Monday July 16th/07. You are advised to attend with a union representative. S. Smith -4- (5) The meeting scheduled for 9 am on July 16 with the grievor did not take place because the grievor had booked off work due to illness. Director Administration Allan Arneil! contacted the grievor on July 16 and advised him that on his first shift back to work, a meeting would be arranged to discuss the issue that was to have been discussed on July 16. Subsequently on July 23 Director of Operations Sandy Smith sent the grievor an e- mail to the effect that the meeting scheduled for July 16 would take place on the grievor's return on Wednesday, July 25 and that the grievor should attend with a union representative. That meeting did not take place, again for medical reasons - the grievor was ill. (6) The grievor was authorized to return to work by his family physician Dr. David Schieck [n late September. A disciplinary meeting took place on September 26 between the Director of Operations, Sandy Smith, the Director of Administration, Allan Arneill, the grievor and Guelph OPSEU Representative, Marisa Forsythe. A list of written comments allegedly made by the grievor to Supervisor Swantko on July 12 was given to the grievor and his union representative (Exhibit 10). At the request of Ms. Forsythe, the grievor was allowed to prepare a written statement of his recollection of events of July 12. The g rievor's statement (Exhibit 11) was received by the employer on September 27, 2007, (7) On October 2, the grievor was given a two day suspension without pay which he served on his next two scheduled shifts, October 3 and 4. -5- The union contends that since the employer failed to given written notice of "any expression of dissatisfaction" to the grievor "within two weeks" of the date management became aware of the complaint, the discipline imposed by the employer on October 2, 2007 was null and void. In support, the union relied upon the following authorities: Ontario Secondary School Teachers' FederaUon. District 25 Ottawa-Carleton (ESP Bargaining Unit) v. Ottawa-Carleton District School Board (Russel Grievance) [2008} O.L.A.A. No. 257 (Jesin); Re CIP Containers Ltd. and International Chemical Workers, Local 229 (1973),2 L.A.C. (2d) 308 (H. D. Brown); Re Delta Chelsea Hotel and H.E.R.E., Local 75 (Masse Grievance), (Surdykowski); and Re Newfoundland and Labrador (Deparlment of Human Resources. Labour and Emplovment) and Newfoundland and Labrador AssociaUon of Public and Private Emp/ovees (2005), 137 L.A.C. (4th) 266 (Oakley). The employer contends that it complied with the requirements of article 13.01 of the collective agreement, in that "expression of d issatisfaction", does not refer to discipline but is meant to prevent "blindsiding" to ensure that a grievor is aware of a complaint. Therefore, from a purposive standpoint, the employer complied with the requirements of article 13.01 by sending Exhibit 4 - the handwritten notice of the meeting with the grievor and his union representative scheduled for July 16 and by sending Exhibit 5, - an e-mail notice to the grievor of the meeting on July 25 to replace the July 16 meeting. I n the alternative, in reviewing the two week time frame, the reasonable approach is to discount the period of absence for reasons of illness. Counsel for the employer cited the following authorities, primarily in support of its second argument: Re Canada Post Corp. and -6- L.C.u.c. (Mallia) (1988), 9 C.L.A.S. 126 (Weatherill); Re Canada Post Com. and CUPW (O'Ed) (1992), 29 C.L.A.S. 393 (Frankel); and Canada Post Corp. v. CUPW (McFarland grievance) [2001) CLA.D. No. 282 (Ready). The material provision of the relevant collective agreement before me reads as follows: 13.01 An employee shall be notified in writing of any expression of dissatisfaction concerning his work within two weeks of the date management becomes aware of the complaint. The employee's written reply to such complaint, accusation or expression of dissatisfaction shall become part of his record. If this procedure is not followed, such expression of dissatisfaction shall not become a part of the employee's record for use against him at any time. The Employer shall notify the unit steward that the Employer has received an adverse report on a particular employee. A copy of any discipline, which may result, will also be provided to the unit steward. On the evidence adduced, there is no doubt that in this case the employer has violated the provisions of article 13.01 of the relevant collective agreement. I do not accept the employerfs first argument to the effect that lIexpression of dissatisfactionll does not refer to discipline. The employer's alternate argument, however, has merit. I agree with the rationale of Arbitrator Weatherill in the Canada Post Corp. and L C. U. C. (Mallia), supra, based on the equitable principle analogous to that of an estoppel where by an employer's forbearance was attributable to the grievor's absence from the workplace on account of sickness. As Arbitrator Weatherill stated in the Mallia case: -7- ... The employer might, indeed, have scheduled an interview immediately, notwithstanding the grievor's absence on sick leave, thus leaving it to the grievor or the union to seek the extension of time contemplated in article 9.20(a). (twenty-four hours in advance of a disciplinary interview). The employers surely commendably, chose not to take that severe course, and waited to allow the grievor to give his side of the story, although it was under no obligation to do so. The disciplinary interview procedure, as counsel for both parties agreed, is not a condition precedent to the valid imposition of discipline. Arbitrator Weatherill sites with approval the rationale of Arbitrator Christie in Robichaud (Apri/19, 1983) where Arbitrator Christie stated at p. 8: In my view paragraph 10.01 - 04 assume that an employee subject to discipline is on his or her regular work schedule and thus available to receive notices, to attend interviews and the like. In other words the parties cannot be taken to have intended that the ten day limit in article 10.02(b) would run during an employee's annual vacation. Arbitrator Weatherill, in the Mallia case, after the above reference to Arbitrator Christie's rationale in Robichaud, goes on to say: The same reasoning, in my view, would apply in cases of sick leave. I agree with the approach of Mr. Weatherill. The rationale of Arbitrator Weatherill applies with equal force to the instant grievance. For these reasons, therefore, I must dismiss the employer's preliminary objection. DA TED at Brantford, Ontario, this 4th day of February, 2009.