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HomeMy WebLinkAbout1977-0129.Gillies.78-11-07Between: IN THE MATTER OF AN ARBITRATION Under The CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD Mr. W. G. Gillies The Crown in Right of Ontario Ministry of Correctional Services Before: Professor R. Prichard - Vice-Chairman Mrs. M. Gibb - Member Mr. H. Simon - Member For the Grievor Mr. R. Nabi, Grievance Officer Ontario Public Service Employees Union 1901 Yonge Street Toronto, Ontario For the Employer Ms. S. Wilkinson, Personnel Branch Ministry of Correctional Services 2001 Eglinton Ave. E. Scarborough, Ontario Hearing: August Znd, 1978 Suite 2100 180 Dundas St. W. Toronto, Ontario -- i. -2- In this case, Mr. W. G. Gillies grieves that the three day suspension he received for alleged misconduct was unjust and unwarranted. Mr. Gillies was and is employed as a Correctional Officer 2 at the Maplehurst Correctional Centre. Mr. Gillies was suspended as a result of an incident on the evening of June 2 at the Maplehurst Correctional Centre involving Mr. Gillies and his immediate supervisor, Mr. Charles Harrison, a Correctional Officer 3. The suspension was communicated to Mr. Gillies in the following letter from the Superintendent of the Centre: June 23, 19~77 Mr. W. Gillies Correctional Officer unit #4 Maplehurst Correctional Centre and Adult Training Centre. Dear Mr. Gillies: On June 17, 1977, a meting Was held, at which you were present, concerning the allegation: "Mat on or about'June 2, 1977, while on the property of the Maplehuqst Complex, you did conduct yourself in a manner unbecoming a correctional officer, in that you made threatening and derogatory remarks towards a supervise?." On your behalf, you i&i&ted that nothing urm.sual happened on the night in question and that you made no derogatory or,threatening remarks to your supervisdr, as indicated in his report of the incident. I .m left with a difficult decision, being faced with complete conflict of evidence. However, I must in -3- this case acknowledge the fact that your supervisor submitted a full report of the incident in gestion immediately following its occurrence, notified the Head Shift Officer on duty at the time and contacted his Unit Supervisor at home as well. It is clear in my mind that your supervisor felt sufficiently threatened by your actions in this incident, as evidenced by his subsequent action taken. The threatening of staff, whether it be supervisory or other, will not be tolerated nor condoned. Your actions in this matter are most serious and contrary to our expectations of a correctional officer. For these reasons, it is my decision that you are to be removed from duty without pay for a period of three days; namely July 19, 20 and 21, 1977. Your attendance and vacation credit entitlements for any month in which you are removed from employment will be affected in accordance with ,the Employ.& Benefits Collectik Agreement. In addition, I am advising you that any future incidents rkquiring discipline will be dealt with more severely, and may result in your dismissal. Yours truly, (signed) T. McCarron, Superintendent, Maplehurst Complex At the hearing before the Board, we heard very considerable evidence dealing with the incident and a number of peripheral matters. For p&-poses of our decision, it is necessary to summarize only the essential facts relating to the central incident. ..~ _- - 4- 11 On June 2, 1977 Mr. Gillies, the grievor, was working as a Correctional Officer 2 on the second shift at the Maplehurst Correctional Institute. Mr. Harrison, a Correctional Officer 3, was his immediate supervisor as he was the shift supervisor. Over the previous two months Mr. Harrison had been dissatisfied with Mr. Gillies' work a~nd had submitted written reports (Exhibit 3 and 4) to his superiors to that effect. During the afternoon of June 2, Mr. Gillies was called to a meeting with Mr. N. Strachan, the Unit Supervisor, to discuss his unsatisfactory performance which had been reported by Mr. Harrison. At that meeting, Mr. Gillies found out that in addition. to:the oral counselling, he would receive written confirmation of the content of the interview. This written confirmation was. provided by a letter (Exhibit 7) of June 3 from Mr. Strachan to Mr. Gillies. Mr. Gillies was angered for two reasons when he learned that he would receive this letter., First, he believed that the letter was not grievable since it was merely a report on a "counselling" situation. Second, he had understood from Mr. Harrison that no written document would go on file unless he was called to a subsequent counselling session with Mr. Strachan; that is, Mr. Gillies believed that a written document would only arrive after a second counselling situations with Mr. Strachan. His anger was' directed at Mr. Harrison since he felt Mr. Harrison had "lied" to him about the procedures and furthermore, when questioned about the perceived variation in the -5- procedure, Mr. Harrison had answered that it was "management's prerogative" to change the procedure. This struck Mr. Gillies as unfair and improper. After the afternoon meeting, Fir. Gillies worked his full shift supervised by Mr. Harrison until 11:OO p.m. when a new shift came on duty. During this time Mr. Gillies apparently made no effort to seek out Mr. Harrisonto discuss their differences. At approximately 11:lO Mr. Gillies went to the parking lot outside the Institute to warm up his car before driving home. A minute or two later Mr. Harrison went to the parking lot to go to his own car to go home. Vhen Mr. Gillies saw Mr. Harrison approach the parking lot, he left his own car and hailed Mr. Harrison shouting "I want to talk to you, Charlie". On approaching, Mr. Harrison, Mr. Gillies said "I know what you're made of, puke-face. I've got your number". Mr. Harrison replied that he was off-duty and did not wish to dis.cuss anything with Mr. Gillies but that Mr. Gillies could be certain that this incident would not go unreported. Mr. Gillies then repeated "I know what you're made of" and added "I'll get you?. (There was some dispute as to this last expression. Mr. Gillies testified that he said "you'll get your just desserts" but we believe Mr. Harrison's testimony at that point which included "I'11 get you".) At this point Mr. Gillies returned to his own car and drove off. Mr. Harrison described Mr. Gillies as very angry throughout the confrontation but did not suggest that Mr. Gillies made any threatening physical gestures. I After Mr. Gillies left the parking lot, Mr. Harrison returned tolthe Centre to file a report on the incident (Exhibit #2), to discuss the incident pith Mr. Carroll, a Correctional Officer 4 who subsequently I made a written report of their conversation (Exhibit #5),and to telephone Mri Strachan, the unit supervisor, who subsequently made a written rebort of their conversation. (Exhibit #6). Mr. Harrison described himself as angered and frightened by the incident. .After completing hi{ report, Mr. Harrison returned to his car escorted by Mr. Carroll. Heithen drove to Acton where he lives (about 10 miles from the Ceitre) but before going home he stopped at the Acton detachment of the Halton Regional Police. He testified that since Mr. Gillies also I lived in Acton it was wise to report the parking lot incident to the local police, asking them to keep an eye on his home and family. Mr. HaIriron had worked as a police officer with 'the Halton Regional Police prior to joining the Ministry of Correctional Services and as a result knew the officer at the desk that night. He did not make a written complaint nor did he seek to lay an information against Mr. Gillies. Rather, he limited himself to an oral request for assistance. On the following day, June 3, an investigation of the incident was begun by management at the Centre and the investigation I led to the letter of June 23, 1977 (Exhibit #I) reproduced above which t inprmed Mr. Gillies that he would be suspended for three days for his "threatening and derogatory remarks towards a supervisor". It is this suspension which Mr. Gillies, is now'grieving. i ,i -7- Mr. Gillies explanation of the incident was that he was angry and upset about the afternoon counselling session because of the written report and his feeling that Mr. Harrison had lied to him. He realized subsequently that he was in error to approach Mr. Harrison on the parking lot but stressed that he meant him no harm. Indeed, Mr. Gillies stressed that he had no intention to consider using violence and that all he meant by his words to Mr. Harrison was that if you don't treat people fairly, you get what you deserve. III In reaching our decision, we are of the view that neither Mr< Gillies' nor Mr. Harrison's behaviour was exemplary on this occasion. For his part, Mr. Gillies quite clearly allowed his anger and his emotions to dictate his behaviour eon the evening of June 2. If he sincerely wished to discuss his concerns about the disciplinary process with Mr. Harrison, there were numerous situations which would have been more conducive to a discussion than a parking lot near midnight outside a correctional institution. He probably could have arranged to see Mr. Harrison inside during or at the end of the shift or, at a minimum, he could have arranged to see him the next day. Furthermore, once in the parking lot, Mr. Gillies' mode of approach to Mr. Harrison was hardly one which. he could have expected to lead to a useful discussion of their differences. He must have known that his language and manner would be considered offensive to Mr. Harrison and unlikely to be a useful starting point for a conversation. On the other hand, for his part, Elr. Harrison did not, -8- in our view, behave at all times in a manner most consistent with good managerial practices. His reference to "management's prerogative" to change the disciplinary process was destined to increase rather than diminish Mr. Gillies' anger about the perceived shift in ~the process. Furthermore, his refusal to speak with Mr. Gillies on the parking lot on the grounds that he was "off duty" was an unfortunate / if not inadequate response for a supervisor less than fifteen ,mi~nutes after"the end of a shift when faced with a dissatisfied employee. To be fair to all concerned, we should state cle~arly that ) we do not believe that Mr. Gillies' position as president of the union local'affected management's handling of this case. Although i~t seemed clear from the evidence that the working relationship of Mr. Gillies with his supervisors is not ideal (he testified that he refuses to speak:with any management representative except in the presence of.a ! thirdparty), Mr. Gillies did not suggest and we do not find that Mr. Gillies' union position influenced management's response oti this case.1 ~' In considering and evaluating the evidence concerning the incidentit is important to place it in the context of the! Maplehurst Correctional Centre. ;I In particular, the interpretation to I be given to Mr. Gillies' remarks to Mr. Harrison on the parking lot iI, 1, must be determi~ned by reference to the general mode of language.at I Mapletiurst. With some concern, we heard evidence which suggested that words:such as "creeps", "fish", "goofs", "turkeys" and "pukes"'are I often used to describe inmates and that fellow correctional officers are I I ; i someti this E is dii this 6 hand. numerc employ made i envirc expres appw we are not t-f absent conclt Mr. He by the visit Gillie any PC means not ir have t les referred to as "fucking assholes". It is not the function of' lard to,stand in judgment of this behaviour per se (although it 'icult to refrain from expressing our concern) but rather to use ridence to assist us in properly characterizing the incident at Also, with regard to the context, we did hear evidence of IS unrelated quasi-threats made by various supervisors to !es, all of which were understood by the supervisors to have been , I jest. In general, we were left with an impression that the lment at the Centre is a tough one and that management's ;ion "para-military" with all its implications is probably an -iate description. In this context and after considering all of the evidence of the opinion that Mr. Gillies' words in the parking lot could [sonably have been taken as a threat of physical violence. The ! of any physical gestures accompanying the words confirms our ;ion in this regard. At the same time, we have little doubt that .rison took the words seriously and was angered, if not frightened 1. However, in our view, Mr. Harrison's actions including his ;o the police station were an overreaction to the situation. Mr. ; had no record of violence nor had he given any indication at !nt during his empl~oyment of an inclination to use violence as a If dispute settlement. We believe his statements that he did :end to make a threat of violence and that any such threat wou,ld :en misguided. - 10 - While we find that Mr. Gillies did not make a violent threat to MrYHarrison, we also find that his approach to Mr. Harrison was offensive, inappropriate and wrong. As we have stated above, Mr. Gillies could have found alternative times and places to discuss his differences with Mr. Harrison. Furthermore, he could have used language much more likely to lead to a reasonable discussion of their differences. Although considerably less serious than a violent threat, Mr. Gillies' angry conduct towards his superiors cannot be condoned. Our conclusion that Mr. Gillies was wrong in his conduct leads us to conclude that some disciplinary measure was in order. However subsection 18(3) of the crown Employees Collective Bargaining Act requ~ires us to consider whether the penalty of a three day suspension was just and reasonable in all the circumstances. The answer to this latter question requires some delineation by the Board of the appropriate scope of review by the Board of the severity of the employer's disciplinary decisions. As Professor Adams has written: However, grievances contesting the appropriateness of the precise unit of punishnxznt selected by the employer have brought into sharp focus differences with respect to the appropriate standard of arbitral revierq. In dealing with .this latter issue some boards of arbitration have refused to intervene and substitute a lesser penalty 0~ the basis that the penalty selected by the etiployer was not "arbitrary, discriminatory, manifestly unjust or unreasonable". (97) According to this view, a board of arbitration ought not to "second guess" the disciplinary decision of the employer just because it would have acted drfferently~ - 11 - in the situation. A second group of arbitrators understand their jurisdiction to require a full review of both the facts giving rise to the disciljline and the 88) articular disciplinary response selected. They are concerned about the fairness of a more limited standard of review in those situations where the penalty selected is wrong but not unreasonable. A third standard, which can be seen as involving somewhat less deference to management than the first,'resolves the issue of whether the measure of discipline is just, not by whether the penalty imposed would be the one selected by the arbitrator himself, but rather on the basis of whether it "Cfallsl within the range of reasonable disciplinary responses to the situation". cvv) CZ'!hose arbitrators who have refrained from sub- stituting their judgment for management's unless the result is manifestly unjust or unreasondble have'attempted to narrow the inherently open- ended nature of the penalty substitution decision making process. Proponents of this view argue that because arbitrators are no more capable than management of determining the precise disciplinary response appropriate for a particular situation, they should be cautious in substituting their opinion for management's. Indeed, this view has considerable appeal when it iS remembered that the employee exposed himself to punishment by engaging in the misconduct in the first place. Where reasonable people can differ over the appropriateness of the disciplinary response, a strong case can be made for the employee, who caused the problem, bearing the cost of the disagreement. On the other hand, where discharge is the penalty selected by the employer, the interests of the dismissed employee may outweigh either any general desire to curb litigation or the interest of the employer in having a reasonable but wrong penalty upheld. The preferred approach may be for arbitrators to defer to a reasonable decision imposing discipline short of dismissal, but to raquire both a reasonable and "correct" decision in dismissal cases. 97. Sasso Disposal Ltd. (1975), 9 L.A.C. (2d) 152 (Gorsky),; Outboard Marine Corp. of Canada Ltd. (1973). 4 L.A.C. (2d) 82 (Reville); Gilbarco Canada Ltd., (19?3), 4 L.A.C. (2d) 119 [Carter). 98. 99. - 12 - Irving Pulp and Paper Ltd. (1976). 11 L.A.C. (2d) 113 (Rose); Galco Food Products Ltd. (1974), 7 L.A.C. (2d) 350 (Batty); Northwood Pulp and Timber Ltd. (1974). 7 L.A.C. (2d) 244 (Wilson): Phillips Cables Ltd. (1974). 6 L.A.C. (2d) 35 (Adam). International Nickel Co. of Canada Ltd. (19681, 19 L.A.C. 118 (Weatherill). lndams, A Study of the Concepts of Industrial Discipline and their Results pp. 24-26; See also Brown, Beatty,~Canadian Ldbour Arbitration (1977) pp. 361-3653 It is our view that the Board should not attempt to substitute its judgment for that of the employer. Rather we should ask whether the employer's response falls within the range of reasonable disciplinary responses in all the circumstances and,if so,to respect that decision even if the Board might have imposed a somewhat different penalty if faced with the decision at first instance. This standard should give the Board sufficient discretion to ensure that the collective agreement is enforced in a fair and consistent manner without en- couraging grievances where only marginal variances in the penalty are sought. In our view, the Board's function should be to ensure fairness of treatment of individual employees and respect for the collective agreement but to do so without putting itself entirely in the place of management. Applying the general approach to this case, we are of the view that we should intervene to vary~ the penalty imposed from a three day' suspension to a written reprimand and,warning with no suspension or loss of benefits. If we had been of the view that a one day suspension would have been more appropriate than a three day suspension we would z .i . 1, - 13 - not have intervened to substitute our judgment in that such a variation would have fallen within the bbunds of respect we would extend to the 'emp,loyer's decision. However, in this case, given our finding that there was no threat of physical violence, we are of the view that a penalty more severe than a written reprimand and warning would be wrong in kind and thus must be vacated. There is a substantial difference between the two penalties. A suspension not only results in a financial penalty but would also be a very serious blemish on the employee's' record if the employee were to be disciplined for some subsequent incident. A reprimand and warning relieves the financial penalty and also reduces the impact that the incident may have in a determination of an appropriate penalty for some subsequent offence. In conclusion, therefore, the Board orders that the three day suspension be removed from Mr. Gillies'record and that he receive the financial benefits he'was entitled to for those days. The Board also orders that Mr. Gillies receive a written reprimand and warning from the employer relating to that incident advising him that his behaviour was wrong and that any further incidents will result in a more severe penalty. Finally, the Board wishes to thank Ms. Wilkinson and Mr. Nabi 3 -*i . - 14 - for their substantial assistance in this case. Dated at Toronto, Ontario this 7th day of November, 1978. R. Prichard, Vice-Chairman I concur M. Gibb, I concur Member H. Simon,: Member