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HomeMy WebLinkAbout1976-0015.Campbell.76-04-28Ontarlo 15/76 CROWN EMPLOYEES GRIEVANCE SETTLEMENT BOAR0 416/965/1410 Queen’s Park Toronto. Ontario WA 125 IN THE MATTER OF AN ARBITRATION Under The : CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Between: Before: For the Grievor For the Employer C. G. Riggs - Hicks, Morley, Hamilton Hearing: Westbury Hotel, Toronto, Ontario, April 15th, 1976 Before THE GRIEVANCE SETTLEMENT BOARD Mr. J. M. Campbell And The Ministry of Transportation and Communications D. M. Beatty Chairman Mrs. Mary Gibb Member Ms. P. A. Sigurdson Member (Griever) (Employer) Grant Bruce - Ontario Public Service Employees Union 1’. In bringing his grievance before this Board, Mr. J. M. Campbell has raised what we perceived, and the parties conceded, to be both a singular and relatively narrow issue. .Specifically the " grievance of Mr. Campbell challenges the propriety of the Ministry's transfer of him on January 21, 1976 from his position as a welder in the Owen Sound garage to a similar job in Cochrane. However, and while there is a serious issue between the parties as to the legitimacy of that transfer, the events that gave rise to it and to this grievance are not in any material sense in dispute between them and may be briefly described at the outset. It is a matter of agreement between the parties that the event, which set in motion the forces which ultimately culminated in Mr. Campbell's transfer, occurred on October 2B, 1975. On that date, for reasons and in circumstances which are not material to the disposition of the issue before us, the grievor became embrolled in an altercation with one of his superiors, a Mr. A. 0. Bart. Although the precise details of the grievor's assault upon Mr. Bart were not put in evidence before this Board, it is only necessary to note that it was sufficiently aggravated as to have resulted in Mr. Bart being required to be hospitalized and to remain off work for some two months thereafter. As a result the employer instructed Mr. R. F. Carney, the District Engineer, to conduct a hearing into this incident and report his recommendations to his superior Mr. F. G. Allen. It was following those hearings and Mr. Allen's consideration of the matter that the grievor was advised on December 5, 1975,that he was to be suspended from 2. employment, without pay, for a period of thirty days, effective December 15, 1975. From the evidence it is clear that at no time did the grievor challenge or grieve the propriety of this suspension. To the contrary, he stated he was prepared to accept responsibility for the incident and therefore accepted it as a proper response by the employer to his behaviour. According.to both Mr. Allen and F?r. Carney the invocation of that suspension ended for them and the matter of disciplining the grievor. However, they testified that as the term of Mr. Campbell's suspension was coming to its conclusion they and in particular Mr. Allen, began to turn their minds to the effect that Mr. Campbell's return wouljd have on the future effectiveness and viability of the Owen Sound garage. In addressing themselves to this issue, they testified that they were concerned not only with the incident of October 28, but as well with two previous incidents which had occurred in 1970 and 1972 in which the grievor had also manifested an inability to control his temper with his supervisors. According to their evidence, when they considered the seriousness and gravity of the latest assault, together with the two earlier incidents, one of which also involved Mr. Bart, they became particularly concerned whether, if the grievor returned to the garage, Mr. Bart would be able to function effectively and without fear of being physically abused in the,future. Ultimately and after weighing Mr. Bart's not unreasonable apprehensions they con- cluded that Mr. Campbell's return to the Owen Sound garage was simply inconsistent and incompatible with-a work environment in which all of the employees, and in particular Mr. Bart, could work' 3. in a manner in which they could fully and comfortably discharge their employment duties. Accordingly and having determined that it was in the interests of both the Ministry and Mr. Bart to have the two physically separated, Mr. Allen decided and Mr. Carney advised the grievor on January 5, 1975 of his transfer to a welder's job in Cochrane which was to be effective on his return to work on January 21, 1976. According to their evidence, it was decided that Mr. Campbell should be transferred to the Cochrane District because that was the location in which the first welder's position would become vacant some two years hence. Against that evidence it was the union's position that the transfer of Mr. Campbell was manifestly improper. That is, and while conceding that the Ministry has both the right to transfer its employees throughout the province and the right to discipline its employees for just and sufficient cause, the union argued that in the circumstances of this case the transfer of the grievor amounted to the imposition of a second penalty for the incident of October 28. According to the union such a response on the part of the employer manifestly is not within the scope of the management function and offends the principle of double jeopardy enshrined throughout our criminal and arbitral jurisprudence. To that end, the union referred'this Board to the decisions of me: J. A. Wilson Lighting & Display Ltd.(1958) 8 L.A.C. 157 (Clark); Re: De Havilland Aircraft Ltd. (1956) 7 L.A.C. 6l(Lane) For its part the employer conceded that its decision to transfer Mr. Campbell from the Owen Sound garage was founded in and precipitated by the incident of October 28. Further the employer 4. accepted as a well established principle of the arbitral jurisprudence the proposition that an employer may not, either simultaneously or consecutively impose more than one penalty for the same offence. Re: A. H. Tallman Bronze Co. Ltd. (1957),7 L.A.C. 253 (Laskin) However it was the employer's position ,that, in effecting the transfer of Mr. Campbell, it was not, in any sense, exercising its disciplinary authority or subjecting him to a further sanction. To the contrary, the employer contended that, as Messrs. Allen and Carney had described, the decision to transfer Mr. Campbell was motivated solely by a desire to allocate its workforce and deploy its personnel in a manner which would take account of their respective capabilities and deficiencies so that it would be able to most effectively discharge its statutory mandate. In short, according to the employer, the decisions to suspend and transfer Mr. Campbell were separate and distinct, were motivated by different considerations and were effected under two auite separate management prerogatives. So formulated, it is obvious that how one characterizes the transfer of Mr. Campbell to the Cochrane District will be determinative of his grievance. . That is, if as the union suggests the transfer of the grievor is, the employer's assertions notwith- standing, actually disciplinary in nature, then necessarily it would offend the principle described above. me: Gait Brantford Malleable Ltd. (1974), 6 L.A.C. (2d) 302 (Cbarney); Re: KVP CO. Ltd. (1963); - 13 L.A.C. 411 (Reville); Re: Rio Algom Mines Ltd. (19621, 12 L.A.C. 194 (Hanrahan),,& Re: Canadian Westinghouse Co. Ltd. (1960) 10 L.A.C. 343 (Lane). Conversely, if one accepts the employer's characterization 5. of this assignment as being non-disciplinary in nature, then it is equally clear that it would fall within those,exclusive management prerogatives that are enshrined in s. 17(l) of The Crown Employees Collective Bargaining Act. In choosing between these two alternatives we think it important to recognize that in certain circumstances a transfer may in fact properly be utilized as a disciplinary recompense for certain types of employee behaviour. Re: Religious of Hotel-Dieu of St. Joseph of The'Diocese of London (1974) 7 L.A.C. (2d) 280 ?Shime). As well however, it is plain that a transfer of an employee to a different location or to a different job is more commonly effected to serve the employer's operational and institutional needs. In the result, and where as here there is an issue between the parties the proper characterization of a particular transfer, ultimately it is incumbent on this Board to determine the true nature and character of that assignment. In making this determination, necessarily the issue for the Board is primarily a factual one. Accordingly consideration must be made of a variety of factors such as the motives of the person effecting the transfer, the premises on which it was made, the relative rates of pay of the two positions and the timing of the transfer itself. In the instant case we believe that this determination is a relatively simple one. All of the evidence adduced by the union supports the conclusion that this transfer was not disciplinary in nature. Rather on the evidence, the employer's officials who decided .? * 6. to transfer Mr. Campbell did so essentially because.the incident . . .: of October 28, together,with the two previous incidents raised I serious doubts in their minds whether the grievor's attitude and his inability to control his emotions was such that he would be unable to work harmoniously with Mr. Bart in the future. That ~~ the grievor's attitude and ability to co-operate with his supervisors, may support the transfer or demotion, in a non-disciplinary sense, is surely beyond dispute. Re: MacMillan Blokiel Ltd. (1966) 16 L.A.C. 369 (Herbert); Re:. Canada Foundry & Forgings Ltd. (1962) 12 L.A.C. 286 (Lane). Avery simply, although not challenging'his,ability as a welder, the employer has, reasonably we believe, concluded that, by 1.. i. his. previous conduct, and by the incident~of October 28, the griever has shown such a serious inability or unwillingness to interact on a. personal level i,n,an ;acceptable manner and,to control.his,temper, particularly with Mr. Bart; that both his own and,his employer's potential to.fully discharge their,:resoective obligations :would:be materially prejudiced by his continued employment.in the Owen Sound garage. In this sense the grievor's apparent inability to control. his temper does reflectupon his competence,and'qua!ifications to wc$in that locationand serves to distinguish his situation from .ci that described in the J,. A. Wilson Lighting & Display Ltd..(supra) award noted earlier. 4'ery simply.there wasno suggestion in that case that the act for whichthe grievorwas dis,ci~plined and subsequently demoted in any sense reflected on hi,s capabilitiesto perform his previous,job. Where however, as here, the griever's misconduct does manifest certaindeficiencies in his ability to fully,discharge hj~s employment obligations and does impinge upon the employer's ability to secure and.esta~blish .a, harmonious working environment? the, .,,,, ,. decision to transfer the grievor;even though precipitatedin the. first,instance'by his culpable behaviour;' i 1s more properly characterized 7. as an exercise of their right to deploy their personnel in a manner which is consistent with their institutional and operational needs. As well, it is apparent from the evidence that a material consideration in the employer's decision to transfer Mr. Campbell, , was its real concern for the safety and well being of Mr. Bart. : According to both Mr. Allen and Mr. Carney they were of the view that the return of Mr. Campbell to the Owen Sound garage after the incident of October 28, could well prejudice his personal safety and would necessarily affect his attitude and inclination in discharging his supervising functions. That this consideration, rather than any disciplinary motive was paramount in the minds of Messrs. Allen and Carney when they decided to transfer Mr. Campbell is reflected by the time at and manner in which their decision was made. That is, and in contrast with the awards referred to us by the union, the sequence of events leading up to the decision to transfer Mr. Campbell does not support its characterization as the imposition of a second disciplinary penalty. Very simply the decision to transfer in this case was not effected by persons senior to Messrs. Allen and Carney who were sitting in review of their initial decision to susRend. Rather, ultimately it was Mr. Allen who made both decisions with respect to the grievor's employment status. Further on the evidence before us he only began to consider the question of what effect Mr. Campbell's return would have on the work environment in the Owen Sound garage as the period of.his suspension came to an end and, only after considering the Ministry's interests and,the concerns of Mr. Bart did he conclude that it was imperative that these two persons be physically separated. In short, in that the decision to transfer the grievor was made almost one c -4~ 8. month after the decision to suspend him, and was made by the same I person who initially invoked the suspension, in our view confirms the evidence that Mr. Allen saw both the purpose and effect of each decision to be quite distinct. Finally this Board would note that as a result of this transfer the grievor while no doubt suffering some considerable personal inconvenience, has not been prejudiced nor made to suffer any loss of pay or benefits or any change in his classification. Indeed, it should be recognized that the employer has made a standing offer to the grievor of any job in the Owen Sound District which : .~ may become available in the future for which he is qualified. Although to date the grievor has not seen fit to accept such a position because it would, for him, result in a decrease in pay, nevertheless that action on the part of the employer seems to confirm its bona fides and our conclusion that the response it made on January 5, was not disciplinary in nature. Having rejected the union's characterization of the' employer's decision to transfer Mr. Campbell, necessarily his grievance must fail. Once it is determined that in transferring him Management acted pursuant to its broad mandate in s.17(1) of the Act, this Board, in the absence of any allegation that the transfer was effected in a manner that was arbitrary, or discriminatory, has no jurisdiction to intervene. However we should add and indeed on the evidence adduced, would expect, given that the transfer is and was not intended to be a disciplinary sanction, that the employer would continue to keen the grievor specifically apprised of any vacancies in the Owen Sound or any other district.which is closer to his home and for which he is qualified so that the personal inconvenience caused to him by thi,s 9.. move can be minimized. In the result this grievance is dismissed. Dated at Toronto this 28th day of April 1976. 0. M. Beat~ty Chairman I concur klary Gibb Member P. A. Sigurdson Member