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HomeMy WebLinkAbout1978-0162.Askew.79-03-15Between IN THE MATTER OF AN ARBITRATION Under The CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD Mr. Frank L. Askew And Ministry of Correctional Services Before J. F. W. Weatherill V;ce-Chairman A. Fortier Member H. Weisbach Member For the Grievor Mr. George~Richards, Grie‘rance Officer Ontario Public Service Employees Union 1901 Yonge Street, Toronto/Ontario For the Employer Mr. J. Benedict Manager, Compensation & Staff Relations Human Resources Management Branch Ministry of Correctional Services Hearinp February l&h, 1979 Suite 2100, 180 Oundas St. W. Toronto, Ontario -2- In this grievance, dated July 31, 1978, it is alleged that what was, in effect, a one-day suspension was an unusually harsh disciplinary measure on the occasion of what was said to be an honest mistake. The issue is whether there was just cause for the discipline imposed. There is no dispute as to the facts. The grievor, a Correctional Officer 3, who supervises the work of five or six lower-rated Correctional Officers, works at the Elgin/Middlesex Detention Centre. He began work in the public service in 1962. He has a clear discipline record, a matter to which we shall return later in this award. On Wednesday, June 21, 1978, the grievor, who had been off duty (in accordance with his shift schedule) for the previous four days, reported for work, for the 3:00-11:OO p.m. shift, at about 2:30 p.m. Although his name was not posted on the board where work assignments are shown, the grievor proceeded toward the maximum security area where, it would seem, he expected to be on duty. He was intercepted by the Assistant Superintendent, who advised the grievor that he was not then scheduled to work, but that he had been due to report at 7:OO a.m. that day, according to the schedule. The grievor said at that time that he had made a mistake, and that he had not checked the schedule. On the evidence, there is no reason for us to come to any other conclusion than that the grievor, in error, failed to report for his scheduled shift. The schedule had been properly posted, and there is no special justification for the grievor's failure to report at the proper -3- time. He was, we find, subject to discipline on that account. While the grievor was permitted to work on the day in question, he was subsequently suspended for one day. There was, as we have found, occasion for the imposition of some discipline on the grievor. It is the union's contention that the discipline imposed was too severe and that, at most, a formal warning should be imposed. Generally speaking, in a system of progressive discipline, the first formal disciplinary measure to be imposed is a warning rather than a suspension. There are, of course, circumstances where a suspension or .even discharge may be the proper discipline in the case of even a first offence. We do not consider the instant case to be of that soeK?What extreme nature. Further, while we do not seek to draw too-fine distinctions, nor to substitute our judgment for that of the employer, we do consider that in determining whether or not the penalty imposed fell within the range of reasonable disciplinary responses to the situation, regard may be had to the substantial difference in kind existing between a suspension and a warning. See, in this regard, what is said in the Gillies case, 129/77. It appears from what is before us that the grievor had, in April of 1978, been spoken to with respect to a similar offence. If formal discipline had been imposed at that time, then it could properly be relied on as some justification for a more severe penalty in the present case - a one-day suspension, for example. Whatever was done in April, - -4- however, did not amount to formal discipline. No action was taken, it seems, which might have been the subject of any grievance. It is not open to the employer at this stage to allege and establish some past misconduct (nor does the employer seek to do so), and by the same token it is not open to the employer to rely on instances not made, in timely fashion, the subject of some sort of formal discipline. Perhaps the grievor was guilty of some similar offence in the past: in any event no formal discipline was imposed, and no record created. In the circum- stances, we can only find that no record of discipline exists, and the instant case is to be treated as one of first occasion of formal discipline. Having regard to the particular offence, and to the fact that this is the first occasion of formal discipline for a long-term employee, it is our view that a suspension was an excessive disciplinary penalty. A written reprimand and warning would, in our view, be a just and reasonable penalty and should be substituted therefor. For the foregoing reasons it is our award that the one-day suspension be set aside, and a written reprimand and warning be substituted therefore. The grievor is to receive compensation for the loss of one day's earnings. Dated at Toronto, this 15th day of March, 1979. J.F.W. Weatherill (Signed) - (Signed) Member (Signed) Member