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Home My WebLink About2021-3110.Mainer.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# 2021-3110 UNION# 2021-0369-0055 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN Ontario Public Service Employees Union (Mainer) Union - and - The Crown in Right of Ontario (Ministry of the Solicitor General) Employer BEFORE Gail Misra Arbitrator FOR THE UNION Alex Andrews Ontario Public Service Employees Union Grievance Officer FOR THE EMPLOYER Aleksandra Katsiouras Treasury Board Secretariat Employee Relations & Negotiations Employee Relations Advisor HEARING May 7, 2024 -2 - Decision [1] The Employer and the Union at the Central North Correctional Centre (“CNCC”) agreed to participate in mediation-arbitration in accordance with the Local Mediation-Arbitration Protocol that has been negotiated by the parties. Should mediation not result in resolution of a grievance, pursuant to the Protocol, they have agreed to a mediation-arbitration process by which each party provides the Arbitrator with their submissions setting out their respective facts and the authorities they may be relying upon. This decision is issued in accordance with the Protocol and 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] Jason Mainer is a Correctional Officer (“CO”) at the CNCC. On May 20, 2021 Mr. Mainer filed a grievance claiming that he was suspended without pay for one day without just cause. By way of remedy he seeks to have the suspension removed from his record and full compensation for his time lost. [3] The suspension arose out of an incident that occurred on January 26, 2021. Sometime in February 2021 the Employer reviewed video from the BSU Control Module for the January 26, 2021 shifts. It noted that five COs at the Control Module, including the grievor, were not wearing their Ministry mandated personal protective equipment (“PPE”) in accordance with the Ministry’s direction and policies during the COVID-19 pandemic. It is worth noting that after that shift, Mr. Mainer tested positive for COVID-19, which required him to be off work. As a result, all other staff who had been with him had to self-isolate in case they too contracted COVID, and to avoid further spread of the virus. [4] On February 22, 2021 the grievor, in response to an Employer request, filed his Occurrence Report about the January incident. He admitted that as seen on the videotape, he had been eating and drinking in a “non-designated” area and that he had removed his PPE in order to do so. He further admitted that he understood that the directive at the time required that he eat in a designated area. He apologized for the occurrence, and undertook to do so in the future. He also sincerely apologized for the occurrence as he understood the implications of his action and accepted his responsibility to adhere to all policies, regardless of circumstances. [5] Following investigation, the Employer held an allegation meeting with the grievor on April 6, 2021. Based on its review of the videotape, it advised the grievor that on the date in question Mr. Mainer had been observed not wearing the required PPE, that he came in close contact (within 6 feet) of other staff and/or inmates, and that he was eating and drinking at his post, contrary to a previous direction sent to staff regarding designated eating areas. [6] At the meeting the grievor again admitted fully to what he had done; his awareness of the direction that staff were not to eat or drink in the BSU Control area; and his awareness of the Ministry’s PPE direction to staff. In response to a -3 - question about his belief about the impact his actions had had on others, Mr. Mainer indicated that as a result of his action he had been unable to attend his next shifts, causing others to have to come in, and also that the contact tracing staff had had a higher work load. He also indicated again that he understood the impact of his actions, apologized for them, and stated that it would not happen again. [7] By a letter dated April 28, 2021 the Employer advised the grievor that he was being suspended without pay for one day (one eight hour shift). While the Employer noted that the grievor had throughout the process recognized the seriousness of his failure to wear his PPE, it also noted that as a result of Mr. Mainer’s actions multiple COs had been required to be off work, self-isolate, and get tested for COVID-19. It noted that the Employer had a legal obligation under the Occupational Health and Safety Act and collective agreement to protect the health and safety of all workers, and that the grievor’s action had put his co- workers at risk. [8] The Union argues that the Employer imposed the discipline without just cause; that the grievor had been honest and apologetic from the start; and that three of the other COs who had also been observed on the video not wearing proper PPE had received letters of warning for their failure to follow the PPE policy. [9] The Employer argues that the grievor’s actions were of a more substantive nature as he was not only not wearing the required PPE, but he was also eating and drinking in an area that was not designated for eating, and he was doing so within 6 feet of his colleagues. As well, as a direct result of his actions, and since, albeit unbeknownst to him at the time, Mr. Mainer had COVID, he put at risk everyone he came in contact with, especially since he was not wearing the Ministry-directed PPE. Finally, it points out that as a result of his actions, other staff had to be kept off work to self-isolate for the required period, and had to be tested for the virus before they could return to work. Thus, it argues that based on Mr. Mainer’s actions, the Employer had just cause to give him a higher level of discipline than some of the other COs present at the Control Module on the day in question. [10] In January 2021 the pandemic was in full swing, and the province had mandated many public health directions, including the wearing of PPE, testing regimes, and had made recommendations for social distancing. Employees in this Ministry had received directives that were designed to try to reduce the chances of infection and illness for their staff and clients. The grievor knowingly breached the Employer’s infection prevention and control measures, and in fact the result was that his actions had an impact on his co-workers because he had COVID-19. [11] Having considered the evidence and submissions of the parties, I find that in all the circumstances the Employer had just cause to give the grievor a one day suspension. I am satisfied that, in reaching the quantum of discipline imposed, the Employer considered and appreciated the grievor’s candor and full -4 - acceptance of his responsibilities from the start of the investigation into this incident. [12] For the reasons outlined above, this grievance is hereby dismissed. Dated at Toronto, Ontario this 14th day of May 2024. “Gail Misra” Gail Misra, Arbitrator