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HomeMy WebLinkAboutColton 03-10-28 E IN THE MATTER OF AN ARBITRATION BETWEEN THE CORPORATION OF THE TOWN OF PERTH (the "Employer~') - and . ONTARIO PUBLIC SERVICE EMPLOYEES UNION, LOCAL 435 (the "Union") - and - IN THE MATTER OF A GRIEVANCE OF MICHELE COLTON (the "Grievor") BEFORE: C. Gordon Simmons, Arbitrator APPEARANCES ON BEHALF OF THE EMPLOYER: Mr. Leslie D. Foreman, Labour Relations Consultant and Others APPEARANCES ON BEHALF OF THE UNION: Ms Kristin Eliot, Counsel and Others A hearing into this matter was held in Perth, Ontario on October 17,2003. -2- INTERIM DECISION The grievance and the settlement requested read (ex. 1): Statement of Grievance I grieve [sic} that I have been disciplined without just cause they failed to provide a healthy work environment and that I was falsley [sic} accused (Article 4.01) Settlement Desired Harassment shall cease and desist full compensation for all lost wages and an [sic] written apology. A problem with respect to who should bear the onus and who should proceed first was raised by the parties at the commencement of these proceedings. It was determined this preliminary issue would be dealt with in the form of an interim award. The arbitrator was provided with opening statements to enable him to become sufficiently acquainted with the facts in order to issue an informed decision on procedure and onus. The opening statements were presented in the form of "will says)) by expected witnesses together with the introduction of various exhibits by agreement. The facts, sufficient to assist the arbitrator in determining the initial "problem)' outlined above, are as follows. The grievor is employed as an aquatics instructor. She appeared for work on Thursday, May 8,2003 as scheduled. There were allegations made that her breath smelled of alcohol. A meeting was convened. The grievor denied having consumed alcohol. An understanding was reached during the meeting that the grievor would obtain a blood test. She was paid for the time spent at work on May 8. She worked and was paid for Friday, May 9. No report of a blood test was provided to the employer on May 9. She worked on Monday, May 12 but again no report of a blood test was produced that day. She was suspended, with pay. on Monday for not providing the ernployer with a -3- report of the blood test. The notice of suspension was issued by Ms Gelinas-McFarlane and reads (ex. 3): This letter is to give you notice of your suspension with pay until you can provide the resulls of the suggested blood work that was to be done on May 8, 2003. On either Tuesday, May 13 or Wednesday, May 14 a blood test report was provided to the employer but was unsatisfactory in that the time and place it was taken was not legible on the form. There were also questions concerning the name of the purported person on the form. The grievance was filed Wednesday, May 14. The employer asserts this date concludes the matter chronologically in that the grievance crystallized the claim at that point. The grievor submitted a blood test report which the employer rejected as being unsatisfactory. The grievor then filed a grievance. Notwithstanding the foregoing paragraph, the following is reported simply to round out the narrative. The paid suspension was terminated Monday, May 19 when the grievor applied for sick pay benefits. The grievor has not returned to active employment. Briefly, the union submits the employer must proceed first and bear the onus that it had just cause to take the action it took. This onus and requirement to proceed first exists even in paid suspension situations where the general rule is the suspension is disciplinary in nature [see Re Board of Govemors of/lie Riverdale Hospital ami Canadian Union of Public Employeesl Local 79 (2000), 93 L.A. C. (4th) 195 (Surdykowski)]. So too in non-discipline situations sllch as innocent absenteeism cases the employer usually proceeds first as it knows the reasons for takin~l the steps it took to correct the situation [see Re Goo({}leal' -4- Canada Inc. amI United Rubber Workers, Local 232 (1981), 30 LA.C. (2d) 100 (Kennedy)]. Therefore the employer should be required to proceed first and bear the onus of proving it had just cause for the action it took. The employer maintains the grievor voluntarily undertook to provide the results of a blood test. The test she ultimately provided is not legible as to the time and date it was taken. There is also a question over the validity of the name appearing on the test. There is no discipline involved and none appears on the grievor's record. It is the grievor who must explain her actions in relation to the blood test report that she voluntarily undertook to provide. The union ought to proceed first and bear the onus of proving the grievor complied with the undertaking she voluntarily gave at the May 8 meeting [see Re National Association of Broadcast Employees amI Technicians and Baton Broadcasting Ltd. (1970), 21 L.A.C. 7 (O'Shea) and see Brmm and Beatty Looseleaf Service Canada Lmv Book, paragraphs 3:2651 and 7:2400]. From the information provided in opening statements it appears to be a hybrid type situation that exists here. May 8 began with an allegation there was the smell of alcohol on the grievor's breath. This was brought to the attention of the employer and a meeting was convened. The grievor denied having consumed alcohol. During the course of the meeting an arrangement resulted in the grievor agreeing to have a blood test taken. In my view, to this point the employer carries the obligation to establish the above "facts" through viva voce evidence. Should the evidence establish a prima facie case that alcohol was present on the grievor's breath then it would be reasonable to look to the grievor to give her explanation of the events surrounding May 8. -5- This, it seems to me, is as far as I must proceed at this stage. After having heard the evidence which has been outlined above I expect I will then be in a position to rule further on the procedure to be continued and possibly who bears the onus. The latter point may have to await further evidence being heard but that can be addressed at a later time. So, upon reconvening this matter, the employer will proceed initially with the purpose of establishing a primafacie case as outlined above. Should it elect to stop at that point I will then look to the union to call evidence in response. It is so ordered. Dated at Kingston, Ontario, this 28th day of October, 2003. M~~~ C. Gordon Simmons Arbitrator