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HomeMy WebLinkAbout2023-01676.Silva.23-12-05 Decision Crown Employees Grievance Settlement Board Suite 600 180 Dundas St. West Toronto, Ontario M5G 1Z8 Tel. (416) 326-1388 Commission de règlement des griefs des employés de la Couronne Bureau 600 180, rue Dundas Ouest Toronto (Ontario) M5G 1Z8 Tél. : (416) 326-1388 GSB# 2023-01676 UNION# 2023-0290-0030 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN Ontario Public Service Employees Union (Silva) Union - and - The Crown in Right of Ontario (Ministry of Children, Community and Social Services) Employer BEFORE Gail Misra Arbitrator FOR THE UNION Dan Sidsworth Ontario Public Service Employees Union Grievance Officer FOR THE EMPLOYER Karen Martin Treasury Board Secretariat Employee Relations Branch Employee Relations Advisor HEARING November 29, 2023 -2 - Decision [1] The parties have agreed to an expedited mediation-arbitration process to resolve grievances at the Roy McMurtry Youth Centre (“RMYC”) in Brampton. Although a formal protocol has not been finalized, the parties have agreed to attempt to settle matters at mediation and, if mediation is not successful, to refer appropriate cases to expedited arbitration. The parties specifically agree that the arbitrator can hear the matter under Article 22.16 of the collective agreement. This decision is issued in accordance with Article 22.16 of the collective agreement, so that it is without precedent or prejudice to any other matters between the parties, and is issued without detailed written reasons. [2] Mike Silva is a classified Cook 2 at the RMYC, where he has been employed since 2011. On August 18, 2023 Mr. Silva filed a grievance claiming that the Employer had improperly given him a three-day suspension contrary to Article 21 of the collective agreement. By way of remedy the grievor is seeking to have the suspension removed from his record and to be made whole. [3] The incident giving rise to the suspension occurred on and about February 28 and March 1, 2023. Mr. Silva is a Line Cook in the RMYC kitchen. On February 28, 2023 he worked the 6 a.m. to 6 p.m. shift. That afternoon the grievor offered to help another Line Cook, Bob Heideman, prepare pizzas for the following day’s lunches. According to the grievor, he prepared the regular pizzas, which included the pizza dough being put in large rectangular trays, tomato sauce, and toppings including pineapple. He states that he did not prepare any of the special diet pizzas. [4] In Mr. Heideman’s Occurrence Report (“OR”), which he completed on March 1 or 2, 2023, he outlined the number of special individual pizzas that had to be prepared on February 28th for those youth who have specific dietary restrictions. These included seven or eight individual pizzas for vegetarians, lactose-intolerant, no onions, and one no pineapple. He had prepared the special tomato sauce without onions, and the toppings for these pizzas, which included cut green and red peppers, tomatoes, and special vegetarian cheese. He also indicated “as I was completing topping the pizza I indicated verbally to Mike Silva that these are specific diet requirement and what I had put on for toppings was already complete”. According to Mr. Heideman’s OR, he did not put pineapple on any of the special diet pizzas he was preparing. Once he had completed making them up, he stated that he had put the rack full of pizzas in the fridge to chill for the night. -3 - [5] According to Mr. Heideman, on March 1, 2023, all the pizzas were cooked and he had told the Cook on duty that day that there was no pineapple on any of the special diet pizzas because there was one that had a “no pineapple” requirement. [6] At around 12:30 pm on March 1, 2023 the kitchen staff were advised by the Food Services Manager, Andrea Brooks, that the youth who had the “no pineapple” restriction had received a pizza with pineapple on it. Since the youth had realized when he ate his first pizza slice that there was pineapple on the pizza, he had not eaten anymore, and there had been no adverse medical consequences. The kitchen immediately prepared a replacement meal for the youth. [7] As a result of this incident all staff who had been involved with the pizza preparation on February 28 or generally in the kitchen on March 1, 2023, were asked to prepare an Occurrence Report. While Ms. Brooks’ OR states that Mr. Heideman was responsible for making the pizzas and the special diet pizzas on February 28th, and she had seen Mr. Heideman and Mr. Silva preparing pizzas on February 28, 2023, she had not observed who did what. [8] Of the rest of the kitchen staff who had worked on March 1st, beside Mr. Heideman who had worked on both February 28 and March 1, one had been the baker for that day, and had only prepared chips for the lunch service; one had loaded the prepared food containers onto the hot carts for the driver to take them to the units; and one person had cooked the pizzas. [9] Kamaleshwar Sangamithran’s OR stated that the lunch menu that day had been Chicken, Jalapeno and Pineapple pizza and special diet pizzas, all of which had been made the day before. Mr. Sangamithran found the special diet pizzas on two trays in the fridge, but since they did not have individual labels, he had verbally confirmed with Mr. Heideman what they were. He was told that the top one was “no onion”, and that all the special diet pizzas had no pineapple; they only had tomato, red and green peppers, and had all been topped with vegan cheese. Mr. Sangamithran could not see what was on any of the special diet pizzas as the toppings were all covered with vegan cheese. He cooked all the pizzas, and served them. [10] I am advised that all pizzas, whether the large rectangular regular pizzas, or the small individual special diet pizzas, are sliced in the kitchen. The special diet pizzas are then put in individual boxes and a specific label is put on each box to indicate who it is for and their special diet restrictions. Once all the pizzas have been boxed, they are sent to the various units where they are distributed by non- kitchen staff. I am advised that Youth Service Officers distribute the meals, and they may also eat the general meal that is sent to the units as they cannot leave their unit. -4 - [11] The grievor was not at work on March 1st when the incident occurred as it was his day off. When he returned for his next shift on March 3, 2023, at 6 a.m. as he was coming in Mr. Silva was told by a duty officer that there had been an incident with a youth getting pineapple on his pizza when he should not have, and that the grievor had to write an OR before he went to his post in the kitchen. [12] Mr. Silva has no training in writing an OR, and in his long tenure at the RMYC has written a total of five ORs. He is also not adept at using a computer to generate an OR, so he hand wrote a six line OR that states exactly as follows: Sir I Mike Silva at RMYC Cook 2 I was asked to right a report on the pineapple pizza I was helping the 4th cook on February 28, 2023 to make the pizza. I did forget about a youth with pineapple allergie. I’m very sorry I have to be more attention on the allergie of the youth. [13] Due to Mr. Silva’s OR statements, the Employer appears to have focused its attention on him. An allegation meeting was held with Mr. Silva on June 22, 2023, in the presence of his Union Local President. From the notes of that meeting, prepared by the Employer, the relevant text of what the grievor is noted as having said are the following responses to questions: - “On Feb 28, 2023, my duty was to train a co worker as a line cook, due to having an extra person, I asked the co worker if he was ok so I could offer to help prep the pizza with the 4th cook. Trainee said he was ok and I said I was available if he needed help. Kitchen manager asked me to write a report and then I asked 4th cook if he needed help. He said the pizza was done and to add toppings to non diet pizza. On this day, no pizzas were served, only prepped.” - When asked “you didn’t put pineapple on pizza?” the grievor responded “I put the pineapple on regular pizza only”. - When asked “how do you know which pizzas were diet and which weren’t?” the grievor responded “its on a tray and written down and says whether its lactose or vegan. It’s a personal pizza size.” - “The list is hanging up and when I came back he told me that all diets are done. So I’m not looking to see if there’s no pineapple to the pizzas.” [14] There is no dispute that all kitchen staff, including the grievor, had been told repeatedly over the years about the importance of following the dietary restrictions of the youth served. Most recently before the pineapple pizza incident, in emails to -5 - all kitchen staff on February 1 and 25, 2023, Ms. Brooks told them that they were to treat every dietary restriction as an antiphallic diet, which essentially means that any restriction that is not complied with could lead to a youth ending up in anaphylactic shock. The seriousness of failure to follow dietary restrictions should therefore have been clear to all kitchen staff. [15] Following the allegations meeting the Employer determined that it was the grievor who had put the pineapple on the special diet pizza; that he had been grossly negligent in his duties as a Line Cook when he failed to follow the directions of his colleague regarding the contents of the pizza for youth with special diets; that he had jeopardized the health and safety of the youth by failing to adhere to the dietary requirement of having no pineapple due to a life-threatening allergy; and that his actions had violated various policies and the Ministry’s Code of Conduct. While the Employer noted what the grievor had said at the allegation meeting, it also noted what Mr. Silva had said in his OR about the event. The grievor was therefore given a three-day suspension. [16] Having reviewed all of the evidence and documents before me, and heard the submissions of the parties, I am not satisfied that the Employer has proven on the balance of probabilities that it had just cause to discipline Mr. Silva in this instance. On a careful reading of Mr. Heideman’s OR, along with the grievor’s responses at the allegations meeting, it seems that it was Mr. Heideman who had put all the toppings on the special diet pizzas, not the grievor. Furthermore, it has been the grievor’s consistent position from when he was interviewed and up to the day of hearing that he had only prepared the large rectangular pizzas that are fed to those who do not have any dietary restrictions. [17] While I can see how the Employer may have been swayed by what the grievor wrote on his OR on March 3rd, that is insufficient in all the surrounding circumstances. It is clear to me that the grievor is an unsophisticated individual. He had not been at work for two days and did not know what had occurred in his absence when he arrived for work at 6 a.m. on March 3, 2023 and was told to write an OR immediately before he could go to the kitchen. At that juncture the grievor had no way of knowing what had occurred. However, by the time of the allegation meeting, Mr. Silva knew what had happened, and he admitted he had put pineapple on the pizzas he had worked on, but he had only worked on the regular pizzas. [18] It is clear from the many people who are involved in making the pizzas, cooking the pizzas, slicing, and then putting the pizzas into boxes for either the general population or the special diet people; putting the labels on the special diet boxes; and then later distributing the food boxes on the units, that there are a number of places where someone could have made a mistake. Furthermore, the grievor was -6 - not at work at all on March 1, 2023, so any error that occurred after the original making of the special diet pizzas, which were done by Mr. Heideman anyway, cannot be attributed to the grievor. [19] For all of these reasons I find that the Employer has not proved on the balance of probabilities that it had just cause to discipline Mr. Silva for this incident. The grievance is therefore upheld, and the Employer is directed to remove the discipline from the grievor’s record and compensate him for any losses he may have incurred as a result of having been given the three-day suspension. [20] I will remain seized in the event there are any issues arising out of the implementation of this award. Dated at Toronto, Ontario this 5th day of December 2023. “Gail Misra” Gail Misra, Arbitrator