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HomeMy WebLinkAbout2021-0658.Vel.24-05-14 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# 2021-0658 UNION# 2021-0108-0020 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN Ontario Public Service Employees Union (Vel) Union - and - The Crown in Right of Ontario (Ministry of the Solicitor General) Employer BEFORE Brian Sheehan Arbitrator FOR THE UNION Gregg Gray Ontario Public Service Employees Union Grievance Officer FOR THE EMPLOYER Kelsey Iyonmana Treasury Board Secretariat Centre for Public Sector Labour Relations and Compensation Labour Relations Intern HEARING April 17, 2024 -2 - Decision [1] The Employer and the Union at the Elgin-Middlesex Detention Centre (“EMDC”) agreed to participate in the Expedited Mediation/Arbitration process in accordance with the negotiated Protocol. It is not necessary to reproduce the entire Protocol. Suffice to say, that the parties have agreed to a True Mediation/Arbitration process wherein each party provides the Arbitrator with their submissions setting out the facts and the authorities they respectively will rely upon. This decision is issued in accordance with the Protocol and with Article 22.16 of the collective agreement; and it is without prejudice or precedent. [2] Robert Vel (the “Grievor”) is employed as a CO2 at EMDC. Currently, he has 22 years of seniority. [3] On May 10, 2021, the Employer issued a 10-day suspension to the Grievor on the basis that he had engaged in the following misconduct on January 14, 2021: 1. You were in possession of and utilized your personal electronic device while working inside the secure area of the institution. 2. You misused the government of Ontario IT resources, namely an OPS computer, to play what appears to be a movie and/or television show that you opened from a USB stick that was in your possession. This occurred while you were working in the Regional Intermittent Centre’s sub control module. 3. You abandoned your post in the Regional Intermittent Centre’s sub control module on multiple occasions while the area was housing offenders in the RIC Annex. 4. You consumed both food and drink at your workstation, contrary to the Ministry directive which indicates that all food and drink consumption must occur at designated areas. -3 - [4] At the time of the discipline being issued, the Grievor had a 2-day suspension on his record for the improper use of a cell phone. [5] The Grievor does not ostensibly dispute the allegations. The Union asserted, however, that the discipline issued should be declared void on account of the nature of the evidence relied upon by the Employer for its determination that the Grievor partook in the alleged misconduct. In this regard, it is not disputed that the only evidence the Employer relied upon was a review of video footage pertaining to the Grievor’s activities on January 14, 2021. The Union submitted that the Employer’s reliance on that video constituted a breach of Appendix COR10 of the collective agreement. [6] On January 18, 2021, the Grievor, when asked by a Sergeant as to why he was not wearing proper personal equipment (protective eyewear), responded that he had not been informed of the new requirement to wear such protective eyewear since his return to work from a medical leave on December 29, 2020. A different Sergeant subsequently claimed that he had seen the Grievor wearing protective eyewear on the Grievor’s previous shift. [7] The Grievor’s prior shift was on January 16, 2021. [8] The Employer reviewed the institution’s surveillance cameras to investigate the Sergeant’s claim that the Grievor had previously worn protective eyewear. [9] The Employer’s review of the video for January 16, 2021, did not reveal that the Grievor wore protective eyewear on that shift as alleged. The Employer then went on to review the video from January 14, 2021. Upon reviewing the footage, -4 - the Employer observed the Grievor partaking in four areas of misconduct that formed the grounds for the 10-day suspension. [10] The Employer never established that the Grievor had, in fact, worn the required protective eyewear prior to his being questioned on January 18, 2021. [11] The relevant parts of the Letter of Understanding set out in Appendix COR10 are as follows: The purpose of electronic monitoring and surveillance of Correctional workplaces is for the safety and security of staff, inmates and property of the respective ministry. Information obtained may be used for protection against criminal acts such as theft, depredation, and damage to property. …. The use of electronic monitoring/surveillance equipment is not to be used as a replacement for supervising or managing; or as a means to evaluate employee performance. [12] The Union relies upon the September 17, 2021, decision of Arbitrator Ian Anderson in Ontario Public Service Employees Union v. Ontario (Solicitor General) (GSB 2019-2154). In particular, the Union suggests that the decision of Arbitrator Anderson stands for the proposition that there is only a 24-48-hour window for the Employer to go back to review surveillance video when investigating an allegation of wrongdoing by an employee. Accordingly, it was asserted that the Employer should have ended its review of video footage as of January 16, 2021. [13] Upon reviewing the relevant facts and submissions of the parties, it has been found that it is appropriate to reduce the issued discipline to a 5-day suspension. Without making a definitive finding on the subject, the Union’s argument that the Employer’s use of video surveillance evidence was not necessarily in keeping -5 - with the intent and wording of Appendix COR10 has a degree of cogency. Moreover, while the Grievor indisputably took part in the misconduct as alleged, he only had a 2-day suspension on his record; accordingly, it is my view that the discipline issued was excessive in the circumstances. [14] In conclusion, the 10-day suspension issued to the Grievor on May 10, 2021, is reduced to a 5-day suspension. The Employer is directed to pay the Grievor the sum equal to 5-days’ pay less the applicable deductions. Dated at Toronto, Ontario this 14th day of May 2024. “Brian P. Sheehan” ________________________ Brian P. Sheehan, Arbitrator