HomeMy WebLinkAbout1975-0001.Maw.75-12-15/’ k h
CROWN EMPLOYEES
GRIEVANCE SETTLEMENT
BOARD
416/965/1410
IN THE MATTER OF AN ARBITRATION
Under The
CROWN EMPLOYEES COLLECTIVE BARGAINING ACT
Before
THE GRIEVANCE SETBLEMENT BOARD
Between: Mr. R. H. Maw
(Griever)
AND
The Ministry of Transportation II. Communications
(The Employer)
Before: D.M. Beatty Chairman
M. Gibb Member
S.R. Hennessy Member
For The Grievor
G. Bruce - O.'P.S.E.U.
For the Employer
N. Pettifor - Ministry of Transportation 8 Communications
Heariq Westbury Hotel, Toronto, Ontario, November 28, 1975
T
1.
In this grievance brought before The Grievance Settlement Board,
Mr. R. H. Maw, employed by The Ministry of Transportation & Communications
as a Traffic Patrolman 2 in its Downsv'iew offices,claims'he was dismissed
without just cause on June 26 1975. The immediate and precipitating
cause for the action taken by the Ministry with respect to Mr. Maw
. was succinctly set out in the letter of dismissal sent by Mr. H. F.
Gilbert, the Deputy Minister of this Ministry,dated July 18, 1975,
in which it is alleged:
I am satisfied that you operated a Ministry vehicle
while your licence was suspended, and that you failed
to notify your supervisors of the suspension of your
driving privileges as required by well publicized
Hinistry regulations.
This occurred on two occasions.
From ,the evidence adduced at the hearing, it is apparent that
there is no material dispute as to the circumstances which gave rise to
the allegations contained in the Deputy Minister's letter. Indeed,
as described in more detail below, except for the grievor's explanation
of his behavior on the two occasions in question, the circumstances which
surrounded the suspension of his driving privileges and his course of
conduct following each suspension, closely parallel each other.
Specifically it was the evidence of Mr. W. F. Johnson, the
Manager of the Driver Control office of the Driver Branch of The
Ministry of Transportation E Communications, which was confirmed by the
grievor, that Mr. Maw was convicted on February 14, 1972 of failing to
remain at the scene of an accident and,on July 17, 1974,0f driving with
mOre than 80 milligrams of alcohol in his blood. It is also a matter
of record that immediately after these convictions were registered the
2.
grievor, through his solicitors, launched appeals with respect to both
of these convictions with the result that the actual suspension of driving
privileges, which would automatically follow upon such convictions, were
held in abeyance pending the dispostion of those appeals. Further, and
although ultimately both appeals were dismissed, on both occasions
the grievor was permitted to retain his original license and indeed
.-_ apparently was issued a temporary license which conferred on him full
driving privileges during the period of time between the registration
of his convictions and the dis,postion of his appeals.
In the case of his first conviction, Mr. Maw's appeal was heard
and dismissed on September 12, 1973 with~the result that his driving
privileges were actually suspended for the conviction reqistered on
February 14, 1972, for a period of two months and twenty seven days
between the dates of September 12, 1973 and December 9, 1973. From
the Ministry's Time Sheets, Daily Activity Reports and indeed the
griever's own admission it is simply beyond dispute that not only did
Mr. Maw fail to advise the Ministry of the suspension of his license
but indeed actually continued to operate the Ministry's vehicles during
the period in question. When offered an opportunity to explain his
behavior Mr. Maw conceded that his motives were selfish but attempted
to justify his conduct on the basis that he had a wife and four children
who were dependent'on him for their livelihood.
With respect to the conviction registered on July 17, 1974, and
particularly with respect to the grievor's explanation for his behavior,
much more difficult considerations prevail. In the first instance the
circumstances which followed this second conviction appear to closely
3.
resemble those described with respect to the conviction registered on
February 14, 1972. Thus, as noted above, following the registration of
this conviction, the qrievor, through his solicitors filed an appeal
which again had the effect of holding in abeyance the actual suspension
of driving privileges pending the disposition of that appeal. That
apoeal was ultimately heard and dismissed on April 29, 1975 resulting
in the grievor's license actually being suspended, from that date, for a
period of three months until July 29, 1975. Again, as with the previous
conviction it is a matter of agreement as evidenced in the employer's
records and the grievor's own testimony, that the suspension of driving
privileges notwithstanding, the grievor again failed to advise the
Ministry of that fact and again operated the Ministry's vehicles from
April 29, 1975 until June 24, 1975 when his immediate Supervisor
Mr. G. Diceman advised him that he would no longer be able to do so.
However and with respect to advancing reasons for his behavior
during this period when his license was under suspension, Mr. Maw offered
much different and in our view a much more substantial explanation.
Suecificaliy Mr. Maw testified, and there was no evidence adduced to the
contrary on this point, that until June 24, 1975 when Mr. Diceman inquired
as to whether this license was in fact suspended, he had no idea that his
appeal had been dismissed and that his license had actually been suspended.
Indeed when Mr. Diceman called him into his office at the start of his
shift on June 24, 1975 and inquired whether he possessed a valid driver's
license, both Mr. Diceman and the grievor testified that Mr. Maw answered
in the affirmative and produced his original license which, as noted above,
had never been taken'from him. According to Mr. Diceman's own evidence,
4. j
the grievor's reaction, on being informed that the Ministry's records
indicated that his license had been suspended, was one of shock and
surprise. Indeed following the completion of his shift that day (which
was spent in the Downsview office) Mr. Maw immediately contacted his
lawyer to determine the status of his appeal. Mr. Maw testified that
his Solicitors advised him that they were not aware that his appeal ~_
had been dismissed and confirmed that they would inquire into the matter
for him. Ultimately Mr. Maw was advised by his Solicitors that his
appeal had been dismissed and deemed abandoned when no one appeared on his
behalf on the date set down by the Court for the hearing of the appeal.
According to his evidence he simply had had no idea, and had relied on
his Solicitors to advise him, of the date that his appeal would be heard.
The fact that Mr. Maw was not apprised of the dispostion of
this appeal until June 24, 1975 is confirmed by certain evidence tendered
through him which establishes that the first official notification he
received from the Ministry that his license had actually been suspended
reached him, by registered letter,on July 4, 1975. Although the Ministry
had sent an earlier notice to him, dated June 9, 1975, that document was
addressed to his former address and was, according to his evidence,
never received by him. Thus it was not until July 7, 1975, some two
weeks after his meeting with Mr. Diceman, that the grievor first
received official notification of the disposition of the charges against
him. It is that set of circumstances, establishing his own lack of
knowledge that his driving privileges had been suspended during the
period between April 29, 1975 and June 24, 1975, that the grievor claims
excuses his failu,re to advise his superiors of the suspension and his
driving his Ministry's vehicles while his driving privileges had actually
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5.
been suspended.
From the letter of dismissal it is apparent the employer relied
on the fact that on two different occasions the grievor failed to apprise
it of the fact that his license was suspended and indeed had driven its
vehicles during both those periods of time. From the evidence described
it is manifest that, at the very least, the grievor was in violation
of provisions of The Highway Traffic Act and the Criminal Code when,
during the fall of 1973, he drove the Ministry's vehicles when his license
was under suspension. Regardless of whether he was at that time aware
of the Ministry's regulations requiring him not to drive Ministry vehicles
during such periods and to advise his superiors if his license was
suspended and regardless of whether those regulations were in some
parts deficient or defective, it is simply trite to observe that every
person is assumed to know the provisions of the general law including
the prohibition against driving while his license was under suspension.
Further, not only did the grievor's conduct during this period run afoul
of the public statutes and Ministry's regulations described above but
in addition his failure to conform to the obvious and honest expectation
of advising his employer that his license was suspended precluded the
Ministry from being able to follow the policy articulated in its
regulations of attempting to place the grievor in some other position
during the period his license was under suspension. As Mr.,I. Cowan
testified, the Ministry has on numerous occasions placed employees
in circumstances similar to those in which the grievor found himself,
in positions where driving was not a requisite function until such time
as their driving 'privileges were restored. Had the grievor followed what
to this Board was the only honest and acceptable mode of behavior, not only
k.
would he not have exposed himself to further liability, as the i
circumstances of this case bear witness, but as critically he would have
been able to ensure his family's welfare and safekeeping was secure.
However, and with respect to the grievor's conduct during the
period from April 29, 1975 until June 24, 1975 when he again failed to
advise his superiors of the suspension of his driving privileges and
again drove the Ministry's vehicles while his license was suspended,
manifestly, different considerations must apply. From the evidence
it simply cannot be contended that the grievorknowingly or
intentionally failed to advise- his superiors of his loss of license or
indeed drove the,Ministry's vehicles wi'thout a license. Mr. Diceman's
evidence, together with the letter from the grievor's Solicitors confirm
his testimony that until June 24, 1975 when Mr. Diceman confronted him,
he assumed that his license was still fully effective pending the
disposition of his appeal. It is true, although we are possessed of no
evidence on this point, that the grievor's change of address, which he
admittedly failed to report to the Ministry as he was required to do,
may have contributed to his failure to receive the notification sent to
him on June 9, 1975. Absent some evidence on this point we cannot
find as a matter of fact that his failure to notify the Ministry of
his change of address was the operative reason for his not having
received that document and in any event would not explain why the griever's
Solicitors were never apprised until later in June of the disposition of
his appeal. Further and more critically for purposes of our award,
whatever liability Mr. Maw may have exposed himself to as a result of
failing to advise the Ministry of his change of address, there is no
suggestion that his failure was other than inadvertent or that the
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7.
i employer relied on this transgression as a basis on which it founded
its dismissal of him. In short and for purposes of the resolution
of the grievance before this Board, the fact remains that, for whatever
reason Mr. Maw failed to receive the notice of June 9, 1975, he was
not apprised and had no reason to suspect that his 1i:cense had been
suspended on April 29, 1975. Very simply,at no time during the period .._
in question could the grievor be said to have knowingly or intentionally
transgressed the operative persuasions of the Criminal Code, The
Highway Traffic Act or Ministry policy when he operated the Ministry's
vehicles.
Nor could it be said that Mr. Maw was acting unreasonably
during the period in question when he addittedly drove the Ministry's
vehicles. The fact'of the aatter was, as Mr. Maw testified, that he was
assuming his case was still under appeal at that time and was relying,
reasonably we believe, on his Solicitors to advise him as to the outcome
of his appeal. Having heard nothing from them since the filing of his
appeal we would hold that he was entitled, acting reasonably, to assume
that his case was still under appeal and his driving privileges still
l'
in force. In sum we must conclude that Mr. Maw did not know and,acting
reasonably,had no reason to assume that he was engaging in culpable
behaviour when he drove the Ministry's vehicles between the dates of
April 29 - June 24. 1975.
Against such a finding it is manifest that Mr. Maw did not
engage in th.at kind or character of behaviour of which disciplinary
sanctions may properly be imposed. It simply would not further any of
the cormnonly articulated themes of correction, deterrence or even retribution
\ to sanction the imposition of disciplinary penalties for conduct which
a.
the prievor did not know and actinq reasonably should not have assumed
to be culpable in nature. In much the same manner and on the same
rationale that arbitrators have consistently exonerated employees for
engaging in certain conduct which the employer has failed to apprise
its employees is beyond the pale, so too this Board would exonerate
an employee such as this qrievor who, in the circumstances such as
those already described, was not aware, nor acting reasonably should
have been aware that he was transqressing known Ministry policy. In
both circumstances the employee is unaware, and for much the same
reasons, that his or her conduct is in any sense improper or deficient.
In the former case the employee is oblivious to any wronqdoing on his
part because of the employer's failure to adequately and properly
communicate the policies by which it expects its workforce to conduct
themselves while in the case before us his belief that he has not
transgressed. any of his employer's policies flows from his mistaken,
but reasonable assumption, as to the existence of certain factual
circumstances. As in the former example, so we believe in the grievance
before us, it simply would not serve and indeed would fly in the face
of any of the commonly articulated premises of diciplinary sanctions,
to permit an employer to discipline an employee for certain behavior
which that employee, actino reasonably, had no basis to suspect was
deficient. In short we are of the view that the grievor's behavior
durinq the period between April 29, 1975 and June 24, 1975 cannot be
invoked by the employer as a basis on which it may support the
discipline it ultimately imposed on June 26, 1975.
In the result we are faced with an employee who during a
9.
three month period in the fall of 1973 conducted himself in a manner 5
which was clearly at odds with the general law of this jurisdiction
and indeed his own Ministry's announced policy. Although our
reasoning would have been otherwise had the employer become aware of
this misconduct in 1973 but failed or refrained from taking the
appropriate disciplinary response at that time, and although the
evidence on this point was incomplete and unsatisfactory, we can only
conclude that the employer first became aware of the grievor's behavior
when it had some bona fide reason to inquire of his driving record in
June of 1975. Accordingly and where as here there can be no suggestion
that the Ministry in any sense waived its right to discipline the
grievor for his conduct during the fall of 1973, nor condoned that behavior,
nor acted otherwise than in good faith, we are of the view that even and
although the qrievor has not engaged in any culpable behavior since that
time, the employer'is entitled to rely on it, in the circumstances of this
case, as a basis to invoke some disciplinary sanction at the present time.
The issue that remains to be determined,by this Board is whether, for
the misconduct described the penalty of dismissal is just and reasonable
in the circumstances. Put somewhat differently, the ultimate issue before
this Board is whether it should invoke its statutory powers under S.lB(3)
of The Crown Employees Collective Bargaining Act and substitute some
penalty, other than dismissal, that we deem just and reasonable in the
circumstances. For the reasons that follow we have answered that latter
question in the affirmative.
In the first place we should note that we view the grievor's
conduct during the fall of 1973 with extreme gravity. Assuming to
one's self the authority to test the morality or efficacy of the general
t laws of one's country, let alone clearly articulated Ministry policy, 3.
10.
except in the most clearly defined and unique circumstances, strikes
at the very fabric of our political and industrial democracy.
Especially is that so, where, as here, the announced rationale for
such behavior has been expressly identified and provided for in the
Ministry's own policies whereby the latter has committed itself to
make reasonable efforts to secure alternate employment for persons,
such as the grievor whose driving privileges have been suspended. In
such circumstances, such behavior as that adopted by the grievor is not
only intolerable and unacceptable hut self defeating.
However and aoainst the seriousness of the grievor's actions
one is necessarily cognizant of and influenced by the fact that these
events are something of, ancient history in these days of future shock.
Their immediacy and urgency have been spent. Further and of more
significance to ourdispositionof this grievance is the fact that, as
evidenced in the Deputy Minister's letter of dismissal, the employer's
action was premised on the fact that the qrievor had on two separate
occasions driven the Ministry's vehicles while his license was under
suspension and failed to report this fact to his immediate superiors.
For the reasons described above, we have come to the conclusion that
the grievor can only be held accountable for the first of these
two incidents. Thus rather than considering the sanction which would
be appropriate for anemployee who persists in or repeats certain
culpable behavior, we are confronted with an employee who might more
properly he characterized as a "first offender". That fact alone
would induce this Board to ameliorate the penalty initially imposed
by the employer. In such circumstances, given what we believe to be
the basic underlying premises of disciplinary sanctions in the
employment context, we are of the view that such employees must he
afforded the opportunity to demonstrate that they can respond to
corrective and progressive discipline and can be induced to comply
with the accepted and reasonable norms of behavior properly
expected by the employer. In this respect, and to elaborate somewhat
on the standards by which the justness and reasonableness of disciplinary
sanctions should be measured, we would refer the parties to an award
of another hoard of arbitration, of which the present chairman was
also a member which we believe is germane and relevant to the employment
relationship in the public service,in which it was stated:
The second reason for our modifying the disciplinary
action taken by the company in this case stems from OUT
view as to the fundamental purposes which support the
invocation of discipline in the industrial environment.
It is we think now generally accepted that the prevailing
themes of nwdern punishment are rehabilitation, COT-
rection and individualization. Kadish, S. "The Criminal
Law and Industrial Discipline as Sanctioning Systems:
Some Comparative Observations" Proceedinos 17th National
Academy of drbitrators (1964),125,137. No longer do we
invoke criminal or industrial sanctions as a matter of
retribution, retaliation or as an instrument of terror.
It is said therefore that for punishment to .serve its
ends, it must induce persons to observe the accepted
nmm of society and it must do so at a cost to the
individual which is not excessive.
Of these three themes it is said by some that the
corrective aspect is the paramount one. Ross, A.M.
"The Arbitration of Discharge Cases . ..'I Proceedinqs
10th National Academy of Arbitrators (19571, 21,26.
It is also said (&dish S., "Criminal Law and Indus-
trial Discipline", supra), that the rehabilitation
theme, that is involving an affirmativeprogramme of
therapy, which is an essential component of many
modern criminal correctional theories, has no place
in industrial discipline. However recent joint
management-labour efforts to deal with the rising
phenomenon of alcoholism in the work force would
attest to the fact that even here, close parallels
can be drawn between such correctional themes and
industrial discipline.
Be that as it rxay, there is obviously much in such
modern correctional theory which is directly applicable
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12.
to the industrial setting. The thrust of the
correctional and individualization themes is an
attempt to acknowledge the existence of and "retain
the usefulness of the person in the community after
punishment has been imposed" Kadish, S. "The
Criminal Law and Industrial Discipline", supra.
That is the punishment is designed to bring home to
the offender, and the rest of his or her community,
the reprobation with which society views such conduct
(the deterrent function) while at the same time
securing for the benefit of that community the
useful services that such person would, as deterred,
have to offer.
The applicability of such modern correctional
themes can be seen in a variety of now widely
recognized rules of arbitral jurisprudence, as for
example in the theory of progressive discipline,
Re North York General Hospital and C.U.G.E.(1973),
5 L.A.C.(2d) 45 (Shime) or in the application of
the concept of mens rea to an analysis of allegedly
insubordinate conduct by an employee. Re Int'l
Woodworkers of dmerica, Local 2-500, and Stancor
Central Ltd. (Peppler DivisionJ(1970), 22 L.A.C. 184
(Weiler). We-believe these illustrations should be
extended and that the employers should invoke
disciplinary sanctions with these twin concepts of
correction and individualization uppermost in their
minds. Thus it would be appropriate to discharge
employees as a last resort and only when it became
apparent that corrective measures would not succeed.
Or, to put the matter in the jargon of the older
arbitration awards, discharge is appropriate when
the employee has demonstrated his incompatibility
to continue the relationship of employer and employee.
Such a conclusion might well be proper for example,
should an employee demonstrate his failure to respond
to correctional disciplinary sanctions by a repetition
of the offensive conduct.
We might add that such an application of industrial
discipline though obviously in the interests of the
employee, may also serve to advance the employer's
ends as well. If as we have said the primary purpose
of industrial discipline is corrective rather than
retributive, then "any value of reformed behaviour
is lost to the company when the man is discharged".
See Porter, J.M. "The Arbitration of Industrial
Disputes Arisins from DiSCiDlinarv Action",
Proceedings I.R:R.A.(1950),>62,26~.
RE GALCO FWD PRODUCTS LTD.dND AMALGAMATED MEAT CUTTERS
& BUTCHERS WORKMEN OF NORTH AMERICA, LOCAL,P-1105 (19/4),
7 L.A.C. (2d) 350, 356-7 (Beatty)
13.
Very simply and without depreciating the seriousness of
the grievor's behavior, we do not believe it can be said that his
behavior was so unequivocal as to affirmatively demonstrate that
corrective measures will not succeed. Indeed and to the contrary
we believe that a lengthy suspension of three months duration with
loss of pay will bring home to him the gravity with which we view
his misconduct and will in fact induce him to comply with the
employer's announced policy in the future.
In addition, we would refer the parties to an earlier
decision Of RE VSW Local 3257 And The Steel Equipment co. Ltd. (1964),
14 L.A.C. 356 (Reville) where a board of arbitration has USefUlly
collected some of the criteria, a number of which we belive can be
fruitfully utilized in the public service, to determine the propriety
of any disciplinary sanctions imposed. In that case the board of
arbitration stated:
It has been held, however, that where an arbitration board
has the power to mitigate the penalty imposed on a qrievor,
the board should take into consideration in arriving at
its decision the following factors:
1.
2.
3.
4.
5.
The previous good record of the qrievor - Re United
Steelworkers of Amsrica, Local 5297, and Frontenac
Floor 6 Wall Tile Ltd. (1957), 8 L.A.C. 105.
The long service of the griever - Re U.A.W., Local
28, and C.C.M. Co. (1954). 5 L.A.C. 1883.
Whether or not the offence was an isolated incident
in the employment history of the qrievor - &
Amalgamated Ass'n of Street, Electiic Railway and
Motor Coach Employees of America and Sandwich.
Windsor & Amhestburq Railway Co. (1951). 2 L.A.C. 684.
Provocation - Re United Brotherhood of Carpenters,
Local 2537, and KVP CO. Ltd. (19621, 12 L.A.C. 386.
Whether the offence was committed on the spur of the
moment as a result of a svmentary aberration, due to
14.
6.
7.
8.
9.
10.
strong errotional impulses, or whether the
offence was premeditated - Re U.A.W.,
Local 112, and De Havilland Aircraft of
Canada Ltd., being an award of Professor
Bora L&kin dated March 13, 1959 (unreported).
Whether the penalty imposed has created a.
special economic hardship for the qrievor in
the light of his particular circumstances -
Re U.A.W., Local 127, and Ontario Steel
Products Ltd. (1962), 13 L.A.C. 197.
Evidence that the company rules of conduct,
either unwritten or posted, have not been
uniformly enforced, thus constituting a
form of discrimination - Re Retail. Wholesale
& Department Store Union, tical 414, and
Dominion Stores Ltd. (1961), 12 L.A.C. 164.
Circumstances negativinq intent, e.g.,
likelihood that the griever misunderstood
the nature or intent of an order given to
him, and as a result disobeyed it -&
United Electrical Workers, Local 524,
and Canadian General Electric Co. (1957).
8 L.A.C. 132.
The seriousness of the offence in terms of
company policy and company obligations -
Re Mine,
Mill and Smelter Workers,
Local 598, and Falconbridqe Nickel Mines
Ltd. (1956), 7 L.A.C. 130.
Any other circumstances which the board should
properly take into consideration, e.g.,
(a) failure of the griever to apologize and
settle the matter after being given an oppor-
tunity to do so - Re V.A.W., Local 456, and
Mueller Ltd. (19581, 8 L.A.C. 144; (b) where
a griever was discharged for improper driving
of company equipment and the company, for
the first time, issued rules governing the
conduct of drivers after the discharge, this
was held to be a mitiaatino circumstance -
Re Int'l Brotherhood of Teamsters and
Riverside Construction Co. (1961), 12 L.A.C. 145;
(c) failure of the company to permit the griever
to explain or deny the alleged offence - Re Int'l
Brotherhood of Teamsters, Local 979, and
Learnington Transport (Western) Ltd. (1961),
12 L.A.C. 147.
Although we would have preferred much more evidence on the relevance
of each of these criteria, and particularly the first, to the case
;
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15.
before us, and while recognizing that awards in the private
sector may not always be completely apposite to employment conditions
in the public service, it is we believe not improper to infer from
the sketchy evidence that was available to us that Mr. Maw is an
employee having some substantial tenure of service with this Ministry,
that the offence may be characterized,in the circumstances as we have
found them, as an isolated incident in his employment history and that
there would be special economic hardship occasioned to this grievor
in his particular circumstances were the dismisial to be sustained.
Again and for those additional reasons we would be inclined to
substitute a three month suspension which, against those considerations,
seems to us more just and reasonable in all the circumstances.
In the result this grievance must succeed in part. We would
hold that while entitled to be reinstated, the employer had just
cause to suspend the grievor for a period of three months without pay
and without accumulating service credits for that period for his behavior
during the period September 12, 1973 until December 9, 1973. In the
result we would order the grievor to be reinstated immediately following
the release of this award, effective September 26, 1975, to his
former position of Traffic Patrolman 2 in the Ministry's Downsview
office, with full compensation that he would have earned from
September 26, 1975 until his reinstatement, lessany monies he would
not have received but for dismissal, together with the restoration
of service credits as of September 26, 1975. In the unlikely
event the parties should have difficulties in the implementation
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of this award we shall retain jurisdiction of those matters.
Dated at Toronto this 15th day of December 1975
D. M. Beatty
Chairman
I COIlCuT
M. Gibb
Member
I concuz
S. R. Hennessey
Member