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HomeMy WebLinkAbout1977-0040.Sauve.77-07-08Ontario 40177 CROWN EMPLOYEES GRIEVANCE SETTLEMENT BOAR0 41.6 964-6426 Suite 405 77 Bloor Street West TORONTO, Ontario M5S lM2 IN THE MATTER OF .AN ARBITRATION Under The CROWN EMPLOYEES COLLECTIVE BARGAINING ACT -Before THE GRIEVANCE SETTLEMENT BOARD Between: Before: Mr. B.. Sauve ' And Ministry of-Correctional Services K.P.Swan' E. J. Orsini ;6/$hainnan S. R. Hennessy Member For the Grievor: M. N. Gagne, Staff Representative Ontario Public Service Employees Union Ottawa, Ontario For the Employer: Mr. J. F. Benedict Personnel Branch Ministry of Correctional Services Hearinq: April 19th, 1977 Suite 405, 77 Bloor St. W., Toronto, Ontario ., c 2. The grievor in this matter complains that he was, on December 2, 1976, discharged without just cause from his employment at Champlain School in Alfred, Ontario where he was a Supervisor of Juveniles 2. Two reasons were given for the discharge by the employer, that the grievor had failed to maintain a satisfactory record of attendance, ' and that on the evening of October 12, 1976 he failed properly to supervise wards in his care. The parties were able to agree upon a detailed statement of the grievor's work history, and this was admitted as evidence on the understanding that it would be used to assess the appropriateness of the penalty 'levied only if the employer succeeded in discharging the onus of proof that the grievor had acted in a way which merited discipline on the specific occasion at issue. This is the so-called "culminating incident" doctrine, which has already been thoroughly discussed by this Board in Re noble, 6/75 and, in circumstances most relevant to the present case, as will be seen, in me MOSS, m/76. Me therefore put the employer on notice that, for the record of'past offences to be considered on the present occasion, we would have to be satisfied that discipline was appropriate for the alleged culminating incident. Leaving aside the grievor's record for the moment, we turn to the allegation that he failed properly to supervise wards in his care on the evening of October 12, 1976. We received much detailed oral testimony on this incident and it was generally not in conflict. At about 11 p.m. Mr. Gerard Seguin, the school security officer, who was doing his rounds on the school property, saw two boys outside the school buildings. He reported this to the head supervisor on duty, Mr. Bernard Arcand. They were uncertain whether the boys spotted were boys from the town or wards from the school who were absenting themselves without leave, and so Mr. Arcand went to investigate. First, however, he telephoned the grievor,who was in charge of the residential unit near where the boys were seen, to enquire if any of his wards were missing; the grievor replied that none were. Shortly afterwards (approximately 10 minutes), the grievor called back to inform Mr. Seguin that two boys were indeed absent, and Mr. Seguin relayed that information to Mr. Arcand by radio. Mr. Arcand then returned to his office and spoke to the grievor on the telephone again. When informed that Mr. Arcand may have seen three boys altogether during his investigation, the grievor checked again and found a third missing from his bed. The boys were found and returned later to the custody of the school. The above is, stripped of its detail, the essence of the employer's case against the grievor. There is no evidence that he acted improperly, that he was derelict in his duty, or that he directly contributed to the absences of the boys, except for the inferences which we were asked to draw from the evidence that he at first did not report any absences, and that he subsequently noticed only two absences. Whether it is proper to draw an inference of improper supervision from these facts must be determined in light of the grievor's 4. own evidence as to the incident. The grievor's story essentially confirms the facts set out above, but denies any adverse inferences should be drawn from those facts. He was, he asserts on duty'as required; he investigated what he thought to be the sound of an opening doorwithout seeing anything amiss, and he did not see 'any other movement or sign of the escape. When he was first asked about the absences, he replied, from the impression that he had that all was well, that no one was missing. A subsequent check on his own initiative revealed two of the absences, and a specific suggestion of a third absence triggered another search which produced the third name. In his view, he was simply tricked by the boys, and he had acted properly throughout in accordance with all the usual practices. On all the evidence, and particularly in light of the fact that there are a large number of absences without leave from the school, as many as two or three each month, and that nine of the sixteen boys under the griever's custody on the night in question were definite absence risks, we have reached the conclusion that the employer has failed to demonstrate that it had just cause to discipline the grievor for improper supervision. The evidence is, at its strongest, equally as susceptible of the inference that the grievor was the victim of a clever escape as of the inference of guilty negligence urged by the employer. The onus of proof is on the employer, and that onus has not been met in this case. Turning to the other allegation, that the grievor had failed to 5. maintain a satisfactory record of attendance, we are obliged to note that this allegation is, in many ways, bound up in a consideration of the past record. In Re MOSS, 62/76, the Board adopted the View, without any real discussion, that a culminating incident was necessary to invoke a record of absenteeism in order to justify a discharge. On reflection, we think that this is indeed the correct approach. As long as the record of absenteeism remains in the past,, hope remains that a grievor has mastered the situation and is able to re-establish a proper relationship with the employer. As the Board stated in me Stewart, 27/76, both the past record and the future prognosis must justify the imposition of discharge as a penalty for absenteeism. In the absence of a culminating incident, it would be idle speculation to determine that the future prognosis is totally bleak. Here the employer relies upon the absence of the grievor from September 23 to 28 inclusive and from October 1-7 inclusive, and suggests that this constitutes a culminating incident. Indeed, it might, but for a letter written to the grievor on September 21, 1976 by Mr. A. F. Daniels, Personnel Director for the employer, which clearly sets out the guidelines for future absences by the grievor in the following terms: III light of your past attendance record I am hereby requiring you, under Article 13.7 of the Employee Benefits Agreement to submit a satisfactory medical certificate for each and every absence which is allegedly caused by illness. This requirement will remain in effect until such time as I have reasonable cause to withdraw it, and the matter will will be reviewed in six (6) months time. You are also advised that your performance 6. will be monitored closely and we will expect it to be maintained at a satisfactory level. Failure to provide satisfactory certification for absences or to maintain adequate per- formance levels will resu1.t in your immediate dismissal. I For the absence in question, the griever produced a certificate from his physician which indicated that he had been hospitalized from September 27 - October 7 for "alcoholic withdrawal, trauma Cleft) eye, hypertension and diabetes". Although Mr. Benedict characterized this certificate as not satisfactory, we are at a loss to know just how it is unsatisfactory. True, it relates to the grievor's alcoholism, which is the nub of the past record sought to be introduced in justification, but it also relates to other serious illness as well. There is no evidence that the employer requested any further details of the reason for absence. Having put the grievor on notice that hisattendance record wili beg reviewed in'six months, the employer can hardly be justified in invoking the first occasion of subsequent absence, for which he provided the required certification, to discharge him. In the result, we find that there was no culminating incident of either kind proved by the evidence adduced by the employer, and that therefore this grievance must succeed. Ordinarily, we would thus consider the evidence of past conduct inadmissible to support the penalty exacted, and would refrain from comment thereon. In the special circumstances of this case, however, we think that we would be derelict in the special relationship a statutory arbitration tribunal has to the parties for whom it is the sole source of resolution for 3 unsettled disputes if we did not connnent further. We recognize that to do so is beyond the jurisdiction which the law permits us, and that our comments therefore have no binding effect. We make them, rather, for the assistance of the parties~ and particularly for the guidance of the grievor. We recognize that the employer has gone to considerable lengths to attempt~to rehabilitate the grievor and to help him cope with his alcoholism. We consider this as a sign of an enlightened and compassionate employer, and we can find no fault in the efforts made, from time to time, to re-establish a proper employment relationship for the grievor. The obvious corollary to such a rehabilitation program is, however, that employees who do not respond must eventually be terminated. A rehabilitation program which does not differentiate between.its successes and its failures can hardly -be~justif.i.ed.--As,.,.,- this Board pointed out in ~R~'MOSS, 62/76 (at p.25) however tragic the circuinstances, the employer is entitled to protect itself and its other employees from the very real and often significant costs that can result from an employment record such as Ithe griever's) We would not, therefore, wish to create any false impression: for the grievor that he had in any way been exonerated by this decision. The law as to the requirement of proof of just cause for discharge is clear, and once the vital link of a culminating incident is missing this Board cannot act on its own view of the employee's past record any more than it can allow an employer to do so. The clear separation between culminating incident and past record must be maintained, .s u a. particularly because the Board fully intends to continue its practice of hearing evidence of a past record while reserving its decision on the existence of a culminating incident. To intermingle the two / would, at the very least, throw that practice into doubt. The grievor has, therefore, received another chance because of a technicality. We are confident that the employer will continue to assist the grievor in his attempt to cope with his alcoholism. How he uses that chance to rehabilitate himself and re-establish a favourable employment situation is entirely up to him. We have little doubt, however, that if he does not use it properly it will most likely be his last chance. As a necessary result of our findings above, the grievance is allowed, the grievor is to be reinstated effective on the date of his original suspension, and he is to be compensated for all losses occasioned by the suspension and subsequent discharge. As is usual, the Board will retain jurisdiction in the event the parties are unable to agree on the implementation of this award. Dated at Toronto this 8th day of July 1977. gee K. P. Swan Vice-Chairman I concur E. J. Orsini Member I concur S. R. Hennessy Member