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HomeMy WebLinkAboutClarke 01-07-21 IN THE MATTER OF AN ARBITRATION BETWEEN KENNEDY HOUSE YOUTH SERVICES INC. (successor Employer to Sf. John's Training School for Boys) (the "Company") AND ONTAIUO PUBLIC SERVICE EMPLOYEES' UNION LOCAL 361 (the "Union") AND IN THE MATTER OF THE DISCHARGE GRIEVANCE OF JUSTIN CLARICE BOARD OF ARBITRATION Ross L. Kennedy - Chair Katherine M. Pollock - Company Nominee Pamela Munt-Madill ~ Union Nominee APPEARANCE FOR THE COMPANY Robert Budd - Counsel APPEARANCE OF THE UNION Maureen Doyle - Counsel TIlE HEARING COMMENCED AT TORONTO, ONTARIO, APIUL 24, 2001, AND CONTINUED JUNE 6, 2001 AWARD The grievor's employment with the predecessor employer commenced in March 1989 and since 1990 his classification has been as a Correctional Officer One in the employer's Court Services Division. It is common ground between the parties that a basic requirement of holding that position is that the employee possess a valid "Class F" driver's license. The grlevor did not, in fact, have such a license at the time he was asked to take the position and he subsequently did obtain a license before assuming those employment duties. On June 26, 2000, the grievor suffered a serious non-work related accident and by reason of the resultant disability, has been off work ever since. It is , anticipated he will be able to return to work in September 2001. In July 2000, the Company took over the facility known as The St. John's Training School for Boys and as part of that process the Company arranged appropriate insurance coverages for the operation of the facility. The Company's insurance broker caused searches to be made .. ~ with respect to the licenses held by all employees who drove company vehicles as part of their normal work duties and the result of that search was to disclose that the grievor's license had expired in October 1994 and that he possessed no valid driver's license either "Class F" or otherwise. The predecessor employer apparently did not conduct such searches. The grievor's employment was terminated by letter dated November 10, 2000 which letter stated as follows: "We had a meeting with you on October 26, 2000. At this time you confmned that you had been a court van driver since 1992, that you drove at least 50% of the time, and that you were aware that having a valid "F Class" license was a condition of this position. You also confirmed that you were aware that such a license required regular renewal. You confirmed through Mr. Dave Vickers, the union steward present at the -2- meeting, that in fact, your license had expired in 1994. You were given an opportunity to follow up with the licensing office regarding your status. As stated in our meeting of October 26, this is a very serious matter. By regularly driving a van full of children to and [rom and across Toronto, you exposed the agency to an unacceptable level of potential liability for over six years. As well your actions were in violation of the law.Y:ou .. currently fail to meet the fundamental telms of your employment and have been in breech of those telTIlS for many years. As a result we have no option but to terminate your employment, effective immediately." The facility operated by the Company is a secure facility housing approximately 80 young offenders who have been charged with various crimes while under the age of 16. A broad range of crimes are involved and many of them are extremely serious. Some of the inmates are subject to custodial sentences and others are waiting for court appearances. The average stay in the facility ranges from 3 - 4 months. During that time, the staff is responsible for all aspects of the education, care and treatment of the inmates and it is expected that the staff will serve as role models for the inmates. The objectives of the facility were stated to be the safety, security and service to thc inmates with health and safety issues being paramount. The grievor's job description states that the purpose of the position is to provide transportation and supervision of secure custody, secure detention, open custody and open detention students from St. John's and York Detention facilities to and from court and interfacility transfers. This function is performed using a fifteen passenger GMC van which has been modified to be a secure vehicle. There are nOlmally two and sometimes three Court Services Officers in the van, one to drive it and the other or others to supervise the inmates riding in the van. Those inmatcs are customarily handcuffed or shackled and for some dangerous ol1clHlcrs they will be belted into their seats ill the van. - 3 - The formal job description contains a velY detailed outline of the duties, but in summary the Court SeIYices Officers supeIYise the inmates in getting up and preparing to go to court, ensuring that all appropriate documentation is available and transp0l1ii.g the inmates to and from their court appearances. This also involves the movementpOnmates between secure facilities. There can be no question that the possession of a "Class F" driver's license is a fundamental requirement for the position and this is expressed clearly in the job description itself, in postings for the positions and in a number of written policies of the facility. There can further be no question 011 the evidence that the grievor was aware of this fundamental requirement with respect to the position he held, and he has in the past confirmed that awareness by signing the job description itself and in the course of training programs held regularly to review the facility's procedures and requirements. In order to maintain an "F Class" license in force, periodic medical examinations are required, together with a written test and a dllving test. The grievor was off on disability when the Company learned of the license situation and he was called into a meeting with representatives of Management on October 26, 2000. It was the Company's evidence that at that meeting the grievor acknowledged that the possession of the "Class F" license was a requirement of the job and when he was told that there appeared to be a problem with his license, it was the Company's evidence that the grievor simply stated "Well I will do whatever it takes." The grievor was asked if he had his license with him and he stated that it was out in his van. He was asked to go and check his license and it was the Company's evidence that the grievor did not appear to be parlicularly surprised or stunned but simply stated that he would 00 whatever he woulo have to do. The grievor and the Union Steward went out to - 4- check the license and the Steward came back to confinll that the grievor did not have a valid license. The Company ultimately decided to tcrminate the grievor's employment focusing on thc potential liability aspect oHhe situation all(~ that for 5Y2 years the grievor had been driving the irll11ates and the staff of the facility without a valid lice.n,s~ ~f any kind. The Company considered it to be blatant irresponsibility and did not know whcther the grievorrealized the risk he had put people to. The grievor had offered no explanation as to why he did not have a license and the Company concluded that because of the degree of irresponsibility, it would be inappropriate to accommodate him in any other position. The Court Services Officer's position did not exist in the facility prior to the time when the grievor went into the position and most of the employees moving into that position at that time did not have the appropriate license. They were permitted to obtain the license prior to commencing duties and for the purpose of getting the license, they were permitted to t)se the Company's van in order to take the driving test. Employees have also, fi'om time to time, been permitted to use the Company's van with respect to tests relating to the renewal of the "Class F" license. It was the grievor's evidence that when the Court Services positions were introduced he was asked if he wanted to become a Court Services Officer. The position required a "Class P" driver's license which he did not have at that time and the Company requested that he obtain one. He successfully completed the medical, written and driving tests that were required and the Company's vehicle was made available to him in order to take the driving test. He testified that in 1994, when his license expired he was going through personal and family difficulties involving the purchase of a home, the birth of a - 5 - child and a number of deaths in his family. He stated that he never received any formal notification with respect to the renewal or the expiIy of his license. On December 29) 1998, while driving the Company's van, the grievor was involved in a minor mote:' vehicle accident in which he was not at fault. He stated that he produced tIjs .d.river's license to the investigating police officer who entered it into the computer and yet no one at that time raised any suggestion that the license had expired. On October 23) 2000, while absent from work due to disability he was contacted by a representative of Management and told to come into a meeting on October 26. Neither the grievor nor his Union representative could find out) in advance of the meeting, what the purpose of the meeting was. It was his evidence that he was asked whether he knew that his "Class F" license had to be renewed, and he responded "yes" but that he did not know how to go about it. He said that as the questioning continued he got the idea that they were raising a problem with his license and when he asked if there was a problem) he was told that there was. He agreed he was a~ked if he had his license with him and that he had responded that it was out in his van. He stated that he was dumbfounded at the time and that he did not say anything more. He said that his Union representative told him that they should not say anything more until they had discussed it and they went outside and checked the license. The grievor stated that at that point he was in tears and the Union representative went back into the meeting to say that the grievor would attend to it. He went to the Licensing Office the next day and confitmed that his license had expired and that it could not be renewed because it had lapsed for such a long period. He stated that as of the date he was discharged) he had gotten a valid ordinary driver's license and had completed the - 6 - necessary pre-requisites for the "Class P" other than the driving test, which he could not take because he did not have access to a suitable van. In his cross-examination, the grievor was 1:sked whether he took responsibility for what had happened and his response was that a lot of people.pl~s.sed up and that he was one of them. When pressed on this point, he indicated that it should have been caught at the time of his 1998 accident and that it should have been caught by the management of the predecessor employer with respect to their insurance coverage. He also expressed the view that something should have come to him in the mail as it did with respect to the renewal of the license plates for his motor vehicle. He agreed that his license indicated on its face that it expired' in October 1994 but he stated that he had never looked at it. He agreed that he knew the "Class F" license was required but he never checked that he had it. He did agree that on October 23 after the meeting with Management he did drive Iris van knowing that he possessed no valid driver's license. He stated that he drove it a short distance to where his wife was and that she drove home. He also made the point in his cross-examination that the Company had allowed him to drive into the meeting knowing that he did not have a license. The Collective Agreement between these parties contains a provision that disciplinaty action recorded in an employee's persOlmel file would be destroyed after a period of either one year or two years depending on the nature of the infraction if there is no reoccurrence. On that basis, it was argued by COlIDsel for the Company that in questioning the grievor, Counsel for the Union could not go into matters of past performance in order to picture the grievor as a good employee because the Company was contractually prevented from challenging that characterization by reason of being - 7 - prevented from referring to persOlmel records. It was our ruling at the hearing that sllch an objection was not well founded. The presence of a sunset clause on discipline in a collective agreement does not simply wipe out the past with respect to an employer's performance. While it greatly limits the extent to which an employer can r~lY_Qn past misdemeanors in the context of progressive discipline, such clauses do not say that the past has never happened. We indicated that in the event the grievor did assert an absence of past disciplinary problems and exemplary performance, it would be open to the Company on cross-examination and by reply evidence to challenge the grievor's credibility on those issues with whatever information was available. Further, in a case where mitigation of penalty may become an issue, it is essential that a board of arbitration do have an understanding of the general quality and level of an employee's past performance. It was the grievor's evidence, which was uncontradicted, that there had never been any job performance issues between himself and the Company. He had never been cOlillseled or criticized with respect to any health and safety issues and he had received two specific letters of commendation with respect to his perfoffilance. It was argued on behalf of the Company that in considering the character of this workplace, the corner stone was responsibility and the grievor's evidence in this area was very telling. In Mr. Budd's view the grievor still does not accept responsibility for the fact he did not have a valid license and is prepared to find the police and the insurers at fault. While he accepts some responsibility it is unacceptable and dangerous that he does not assume full responsibility. Reference was made to the special nature of this workplace being a secured facility where inmates are at the mercy of thc staff and the staff are cxpected to act as role models. It is a reasonable expcctation that all staff will be -8- qualified to do what they are suppose to do without exception. The possession of a "Class F" license is a first and fundamental qualification of the grievor's position. It is the employee's responsibility to maintain that qualification and such res~onsibi1ity does not rest with the institution or with anyone else. The grievor does not own _l~p _ t.o that responsibility. It was the Company's interpretation of the evidence that the grievor did not respond at the October 26 meeting with denial or devastation but rather he knew very well he did not have a license and simply responded that he would do whatever was required to get one. Even after that he did drive his van knowing he had no license. It was argued that the Collective Agreement and 'all of the policies, procedures and practices of the institution stressed health and safety issues and the residents are entitled to have all of these enforced for their benefit and protection. In determining whether the employer was justified in terminating the grievor's employment, it is necessary to focus on the nature of this specific workplace and the rights of all parties who are found there. Hiring into the grievor's classification has the mandatOlY requirement of the "Class F" license and clearly the grievor knew that fact from the specific job description and the training programs that he took. In Counsel's view the grievor must be either stupid or totally inesponsible and therefore the Company cannot put the lives of staff and inmates in his care. His actions were inconsistent with the role model aspects of his job duties and evelyone is entitled to expect a properly qualified and licensed driver. The grievor's failure to have a license placed the Company's insurance coverage in jeopardy in the event that there had been an accident. It was argued that this case was about a lack of accountability, a lack of trust and a disregard by the grievor ofthe employer's policy and the safety of other employees and inmates, Reference was made to re: Oslwwa Gel/eral - 9- Hospital (1975) 10 L.A.c. (2d) 20 I (H.D. Brown) as authority for the proposition that where an employee fails to possess a specific qualification that constitutes a condition of th... employment, termination of employment is appropriate. Reference was also made to re: Rolland Inc. (1983) 12 L.A.c. (3d) 391 (MacDowell) as stating that in ~qn~igering mitigation or substitution of penalty it is important for an arbitrator to consider whether or not the employee has accepted responsibility for what he did. For the Union, it was argued that the grievor gave uncontradicted evidence that he did not know the status of his license and the Company's impression that he had known is not based on any knowledge or fact. The' Company's impression was based on the grievor's appearance and the fact that he'did not seem to be surprised but the grievor has explained the circumstances and the tme nature of his feelings at that meeting. The accident that occurred in December 1998 underscores the fact that the grievor simply did not know. Had the grievor realized at any point that his license had expired, then surely he would have quietly gone about renewing it and the fact that he did not confinns that he did not know the status of his license. It is unjustified to conclude from one en'or that the grievor is either stupid or ilTesponsible and that is exactly the sort of harsh judgment arbitrators should relieve against. On the issue of whether he ought to have known, the evidence was that insurers do run checks and the police would normally check. The checks and balances that nOl1nally operate in the system did not operate for the grievor. He did not receive any notification with respect to the expilY of his license and it is reasonable for him to conclude that there is no issue about his licens.:::. Nonnally the renewal forms come and whatever action is required is taken. However, the gllevor did not get slIch notification and it is not astounding he did not have an appreciation of the - 10- particular requirements. He does now. The grievor is not really casting blame elsewhere. The normal checks and balances of the system simply did not operate for him. He was devastated when he did discover the license had expired and in that state he .:lid drive a short distance but did not do so again until he had a valid license. He immedifltyly took the necessary steps to address the problem and has gone as far as he can go without access to a large van. He has worked since 1989 and it is undisputed there has been no other concern on his perfonnance and he has received two letters of commendation from his employer. The Company has provided its van to employees in order to get the "Class F" license or renew it and consistent with that practice, the van should be made available to the grievor to take the necessary driver's test. He should be allowed to rectifY the absence of a license and if he has not accomplished this by the time that he is medically fit to retum to work, his employment should resume and he can be given the non-driving portion of the duties of the COUlt Services Officers. With reference to the Oshawa General Hospital case referred to by the Company's counsel, it was distinguished on the basis that there the employee concerned had never possessed the appropriate qualification and had failed the requisite examination. In this case, the grievor had the qualification and is in a position to re-acquire it. With reference to the Rolland Inc. case it was argued that that was not a termination case but rather one involving the appropriate length of a suspension and that in the context of a termination case, the focus should be on whether the grievor should be terminated for one lapse. The grievor's personal life was in turmoil at the time the license expired and it is not flstounding that he did not realize it. Reference WflS made to re: Bell Canada (1991) 24 L.A.C. (4th) 116 (Shime) wherein an employee received a license suspcnsion which was thc latcst in a lengthy list of - 11 - suspensIOns. The employer refused to accommodate the cmployee by a leave of absence, but the arbitrator held that being irresponsible did not justify termination of employment if the requested accommodation was reasonable. Reference was made to re: Ottawa Citizen (1990) 9 L.A.C. (4th) 272 (Stanley) wherein the employer was requirc;:p to make reasonable accommodation with respect to an employee who had lost his driver's License. DECISION Apart from one very disturbing aspect of the evidence, this would not be a difficult case. The grievor has over 10 years' of satisfactory perfOlmance and service with the Company and the failure to renew his license would appear to be the only lapse in his record. That being said, it is a lapse of a very serious nature and one with potentially very serious consequences to the Company. Fortunately, however, there were no serious consequences to the Company and the problem was uncovered by routine insurance checks when the Company took over from the predecessor employer. While in normal circlUllstances, on similar facts, a board of arbitration might well be inclined to modify a termination to a disciplinary suspension that is not a totally satisfactory result on the facts of this case. The grievor was absent from work due to disability at the time of the termination and he has not yet been cleared to return to work. Reinstatement at this point in time would essentially mean that the grievor has incUlTed no disciplinary sanction for a velY serious lapse in judgment. Thc disturbing aspect of thc evidence is that the grievor continues to view the situation as one in which others as well as himself, have Incsscd up. Until he is ahle to - 12 - accept that he and he alone is responsible for the predicament in which he finds himself, he clearly has not learned the appropriate lesson from what has happened. Even as of the date of the hearing, he has not reinstated his "Class F" license and his justification for that is that the Company has not provided him a van in which to take the test...l b.elieve it to be self evident that the Company's van is not the only vehicle in which the grievor could take the test and if he did in fact understand his responsibility with respect to the maintenance of his license he would attempt to rent or borrow a van from some other source, The onus to be qualified is on him and he does not yet accept that. Notwithstanding the foregoing consIderations, while the grievor's actions with respect to his license may reasonably be characterized as stupid and inesponsible, we are not persuaded that it follows that the grievor is generally a stupid and irresponsible person. If he were, he would not have been able to perform in his job for over 10 years in a satisfactory manner. On the totality of the evidence we must conclude that the grievor was not aware of the status of his license until the meeting with Management on October 26, 2000 and that significantly reduces the degree of culpability that attaches to the situation. There was no intentional contravention of the Company's policies and requirements and within the Company's current practices with respect to license checks, the Company is not exposed to any recunence of what happened. This award ought to be sufficient to make the grievor understand and appreciate the nature of his responsibility to be qualified foJ' his job and that he cannot rely on anyone else to do it for him. At the end of the day, it is our conclusion that this is an appropriate situation in which to exercise ollr jurisdiction to mitigate penalty and we do so by directing that the gricvor be reinstated with seniority but otherwise without compensation of any natlll'e as - 13 - of the date when he is both medically and certified fit to return to work and he is in possession of all required qualifications to perfOlTIl his job. We remain seized with respect to any matter relating to the implementation of this award should the parties not be ~ble to agree. DATED this lzth day of July, 2001. /~~ Ross Kemledy II .. h. ;I /2111111 ..r KatherinePollock IC ;+ ~ ;;.. /~~r /~/t;c.~ II Pamela Munt-Madill I dissent ")1/ /---JA, (" II It I concur - 14- Dissen t of Katheri~M. Pollock I have read the carefully written decision of Chair Kennedy and, with respect, I must dissent from his decision. In my view, the grievor's discharge should be upheld by this Board of Arbitration. I recognize that the termination of an employee's employment is a severe consequence for the grievor inadvertently or otherwise failing to maintain his Class F driver's license. It is the appropriate penalty in this case, though, given that this grievor's primary fimction was to drive children in a 15 passenger van, all of whom would be handcuffed and some of whom would also be belted in their scats in the van. These children were completely at the grievor's mercy and totally reli.lllt on him to abide by the relevant mles. He failed to do this when he drove the employer's van for over 5 years without the proper licence, thus exposing the employer to liability in the event of an accident. All of this serious misconduct was exacerbated by the grievor's posture on the witness stand in the hearing before this Board. He could not even now see that it was he who was responsible for f(liling to have the proper license. This complete lack of understanding of the role he played in this serious problem convinced me that this grievor is not a suitable candidate for 1l1is Board to interfere with the employer's initial decision. As such, I would uphold the discharge.