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HomeMy WebLinkAbout2023-02386.Borrelli.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# 2023-02386 UNION# 2023-0369-0074 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN Ontario Public Service Employees Union (Borrelli) 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 Jennifer Charlton Treasury Board Secretariat Employee Relations & Negotiations Employee Relations Advisor HEARING May 8, 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] Mario Borrelli is a Correctional Officer (“CO”) at the CNCC. On November 27, 2023 Mr. Borrelli filed a grievance claiming that he was suspended without pay for five days without just cause. By way of remedy, he seeks a reduction in the hours of the suspension, compensation for his time lost and a reduction in the period that the suspension remains on his record. [3] The suspension arose out of circumstances that occurred on Friday January 20, 2023. On that day the grievor worked his shift in Unit 5 and without realizing it, took home a set of keys for that unit. Mr. Borrelli did not realize he had the keys as he was off work till the following Monday. [4] While the Employer has a system of checks at each shift changeover to try to ensure that all keys are accounted for each day and on each unit, due to human error that system broke down. According to his Occurrence Report, CO Braeden Morrison was responsible for conducting the Unit 5 Key Count at the shift changeover on the morning on January 21, 2023, and miscounted the key sets kept in the key press. Thus, no keys were reported missing as of Saturday morning. [5] During the shift changeover on Unit 5 on Saturday evening, at around 6:25 p.m., CO Daniel Rossi and CO Chris Chrysler noticed that there was one set of keys missing from the key press when they did the Key Count. The floor staff tried to find the keys but were unable to do so. CO Chrysler therefore notified the Sergeant on duty of the missing keys, and noted the issue in the Unit 5 Control Logbook. As a result of the keys being missing, a Weapons Threat Assessment (“WTA”) had to be called. This entails lock downs of the cells and Search Teams having to search each unit of the facility to find the keys. -3 - [6] On Sunday January 22nd the President of the Local, Richard Dionne, was working so he became aware of the missing keys and the WTA. That caused him to send an email to all his CO members at their personal emails indicating that a set of keys was missing from Unit 5; that it was believed the keys had gone missing from the Saturday day shift; and that if anyone was in possession of the keys, to contact him directly. While Mr. Borrelli got that email, he didn’t think it applied to him as he had not worked on Saturday. [7] On Monday January 23rd morning, as he was getting ready to leave for his shift at the CNCC, the grievor realized he had the keys in his gym bag. Mr. Borrelli immediately called Mr. Dionne at around 6:30 a.m. and told him that he had the missing keys but that he had to run an errand before he went in for his shift that started at 8 a.m. Mr. Dionne told the grievor to bring the keys to him immediately, which the grievor did. [8] Once he had the keys, Mr. Dionne called Staff Sergeant Thompson to advise him that he now had the keys, was coming in, and would bring them in as soon as possible. He followed up by sending an email to assist in having the WTA called off. Mr. Dionne delivered the keys to Staff Sergeant Thompson at 8:20 a.m., at which point the WTA was called off. All this information was outlined in Mr. Dionne’s Occurrence Report dated January 23, 2023. [9] On May 24, 2023 an allegation meeting was held with the grievor about the incident. The grievor was forthright in admitting that he had failed to maintain key control by not returning the keys to the module at the completion of his shift. He explained that he had called Mr. Dionne as soon as he found the keys on Monday morning, and because he had to take his daughter to day care that morning, and as Mr. Dionne lived near him, he dropped the keys off with the Local President to take in to the CNCC. Mr. Borrelli stated that he had learned from the incident that he should make sure to leave the keys at the institution before leaving. He also understood that the impact of his action that day had caused a lockdown, a Level 2 search, had disrupted the flow of the institution and had caused an administrative burden. The grievor took full responsibility for what he had done. [10] On November 8, 2023 the Employer gave the grievor a five-day unpaid suspension for this incident. It noted that on January 21, 2023, after the keys had been reported missing, the Sergeants had made attempts to reach all staff members regarding the missing keys, and they were told to check their belongings to ensure they had not inadvertently taken home the keys. However, the grievor had not checked his belongings at that time, so that the operational impact of his action had been significant. The Employer also indicated the -4 - grievor had not provided a satisfactory rationale for not immediately calling the institution when he found the keys on Monday morning, or returning them to the institution himself. [11] The Union argues that the level of discipline in this instance was far too severe. The grievor has been employed at the CNCC since 2016 and had no discipline on his record before this incident. He was forthcoming all along and was remorseful about having inadvertently taken the keys home. It maintains that contrary to the letter of discipline, the grievor was not contacted at home by any Staff Sergeant on the Saturday or Sunday of that weekend. Furthermore, even though he had received Mr. Dionne’s email on the Sunday, he did not believe it could have been him as he had not worked on Saturday, when it was believed the keys had gone missing. Finally, the Union maintains that the grievor called the Local President as soon as he found the keys on Monday morning because Mr. Dionne’s email to the membership had told the COs to do that if they found the keys. [12] While the Employer concedes that the grievor was not called by anyone at the institution on the weekend in question, it nonetheless argues that the grievor violated the Key Control Policy, and his actions caused significant consequences for the institution with the lock down, a Level 2 search, additional Sergeants had to be called in due to the searches, and that resulted in extra costs to the institution. It also notes that the grievor did have some previous discipline on record: he had a letter regarding the wearing of Personal Protective Equipment, and a three-day suspension for a cell phone violation. It concedes that those are about different issues from what occurred in this instance. [13] Having considered the evidence and submissions of the parties, I find that in all the circumstances, while the Employer had just cause to discipline the grievor, the level of discipline was too severe. There is no question that the grievor was lax in not returning the keys at the end of his shift and before leaving the institution. As such, he breached the Employer’s Key policy. However, it is apparent that the lockdown and WTA went on as long as they did for two reasons: Firstly, the CO responsible for the key count on the shift changeover after the Friday shifts failed to properly count the keys in the key press, so no one was alerted immediately of the missing keys. Secondly, no Sergeant in fact called the grievor on Saturday or Sunday to ask him to look through his belongings for the keys, so it is not the grievor’s fault that he did not do so. The mitigating factors include that the grievor was forthright from the start; admitted his mistake; understood the gravity of the consequences of his action; and undertook that it would not happen again. -5 - [14] It is not apparent to me that in reaching the quantum of discipline imposed, the Employer considered and appreciated the grievor’s candor and full acceptance of his responsibilities from the start of the investigation. As well, the Employer considered that the grievor had willfully failed to look for the keys when contacted by a Sergeant, when in fact he had not been contacted. To the extent that the grievor became aware of the missing keys, it was on Sunday, and through the Local President, who indicated that the institution believed the keys had gone missing following the Saturday day shift. However, since the grievor had not worked the Saturday day shift, it is unsurprising that he didn’t look for the keys in his belongings at that time. While the grievor had some discipline on his record, none of it was for matters of a similar ilk to the circumstances before me. [15] In all the circumstances, a three-day suspension would have been the appropriate quantum of discipline in this case. The Employer is directed to revise the disciplinary letter to remove the reference to the grievor having been contacted by Institutional Sergeants, and to revise it to indicate a three-day unpaid suspension. It is also directed to compensate the grievor for the two days that he lost. [16] For the reasons outlined above, this grievance is hereby upheld in part. I will remain seized to address any issues that may arise in the implementation of this award. Dated at Toronto, Ontario this 14th day of May 2024. “Gail Misra” Gail Misra, Arbitrator