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HomeMy WebLinkAbout1979-0079.Travers.81-06-18SUPPLEMENTARY AWARD a) Between: Mr. David Travers and . . :: The Crown in Right of Ontario Ministry of Correctional Services , Before: Prof. K. Swinton Vice-Chairman Mr. E.,R. O'Kelly Member Mr. D. Anderson Member IN THE MATTER OF AN ARBITRATION Under The CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD : For the Grievor: For the Employer: 'Hearings: Mr..S. Goudge, Counsel Cameron, Brewin .and Scott Mr. C. Riggs, Counsel Hicks, Morley, Hamilton, Stewart & Storie November 27, 1980 March 13, 1981 -2- SUPPLEMENTARY AWARD Inan ~award dated May 29, 1980, this Board.made an order with regard to a discharge grievance involving David Travers. He had been discharged on the basis~of an.~assault on an inmate at Niagara Detention Centre in'Thorold, where he worked as a Correctional Officer 2. Two other grievances were adjudicated at the same time, and argument was made that the assault was a culminating incident. This Board found that the grievor had used excessive force against ,,~ the inmate, but in the circumstances discharge would be an excessive penalty. Therefore, the Board exercised the statutory discretion to substitute a penalty under s. lB(3) of the Crti i%pZoyees CoZZectiue &zrq&ning Act, S.O. 1972, c. 67,, as amended. In doing so, it was necessary to have regard to s. 18(3a) and (3b) of the Act, the result of a 1978 amendment to the Act (S.O. 1978, c. 79), which restricts the Board's discretion under s. 18(3) when excessive force has been used against a "resident" of a "facility.!' ~That section reads in part, as follows: 18. (34 Where, in exercising its authority under subsection 3, the Grievance SettZement Board fGd.s that an empZoyee who works in a faciZity, (a/ has appZied force to a resident in the facility, except the minimum force necessary for self-defeence or the 'defence of another person or necessary to restrain the.resident; or (bl has sexually molested a resident in the facility, the Grievance SettZement Board shaZ2 not provide for the empzoyment of the employee in a position that involves direct responsibizity for or that provides an opportunity for contact with residents in a facility, but the Board may provide for the employment of the enqloyee in another substmztiatty eqwvaZent position. 13b) In subsection 3a, (al "'faciZi@j" means, . . . . . . I i - (vi) a correctional institutidn.under the Ministry of Correctional Services ~A&, 1978, ..*.. Ibl '%esident"me- a person who is ax inmate . . . . in a facility. Iii compliance with s. 18(3a), we ordered that Mr. Travers be reinstated forthwith to a "substantially equivalent position" in the Ministry which he was qualified to fill. Following the award, the parties made~ efforts to comply with that order, but they failed to agree on the components of a substantially equivalent position. As a result, they returned to the Board, which had retained jurisdiction to deal with problems . . :: in implementing the award. The task with which the Board is presented is by no means an easy one. The Board must decide upon a "substantially equivalent position" which does not involve "direct responsibility for or that provides an opportunity for contact with residents in a facility." Definition of the range of factors which mu,st be considered and the balancing of these factors in an individual case are not tasks for which an adjudicative body i.s ideally suited. It is to be hoped that in most cases in which this subsection is operative, the parties will be able to agree upona suitable position,since its application will always have to be tailored to fit the circumstances ,’ (I -4- of the case. However, that has not been the result here, and this Board must, therefore, come to some determination as to the way in which s. 18(3a) should be applied. The history of the case can be stated briefly. By letter dated June 27, 1980 ~(Exhibit 6), the Ministry offered the grievor a job classified as a Clerk 3 General at Mimic0 CorrectionalCentre in Toronto. The salary would be $267.94 (the maximum for the range). He was told to report on July 14. As the grievor lives in Ridgeway,~which is approximately 103 miles away, he was offered relocation expenses. The grievor did not comply with these instructions. Instead, the Union wrote to the Ministry~on his behalf (Exhibit 7, dated July 9, 1980) objecting that the proffered job was not a substantially equivalent position and requesting a meeting~to negotiate an acceptable outcome, In a reply dated July 11, 1980; the Ministry stated that Mr. Travers would.bq:on a leave of absence without pay until a satisfactory settle& ment could be reached. Despite negotiations and consultations with other Ministries, no agreement w~as reached nor wasanalternative posi- tion offered to the one at Mimico. At the hearing, two types of evidence were led. Information was given with regard to vacancies which had arisen since the issuance of the award, some of which have been filled and others which have not. As well, evidence was given with regard to redesigning a Correctional ~. Officer's job for the grievor. A list of vacancies at the Hamilton- Wentworth Detention Centre and Niagara Detention Centre between May, 1980 and January, 7987 was iubmitted. hese two locations were consideredtecauseof ‘- 5 - their proximity to the grievor's home: 22 miles from Thorold and 65 miles from Hamilton. In considering suitable vacancies, it was : necessary tom ensure that there was no inmate contact associated with the job so as to comply with s. 18(3a) of the Act. .~ .~~ According to Joanne Miko, Classification Grievance Officer with OPSEU, the grievor could fill any of three positions which were vacant at some point during that period: Records Clerk (Clerk 3 General) at Niagara,.and Clerk 2 General and Records.Clerk (Clerk 3 General) at Hamilton-Wentworth. The~salary levels for each are substantially less than for a Correctional Officer 2 and the hours of work are 36% instead of 40 per week. Mr. Riggs for the employer stated that the Ministry agreed thatthe grievor could fill the Clerk 3 General vacancy at Hamilton- Wentworth Detention Centre. It was stated that there is no inmate contact::associated with the job and that the opening still existed at the time of the hearing. The grievor stated thathe would be willing to work at this job if his salary level was protected, al.though he expressed some reluctance about commuting. Evidence was given on the issue of inmate contact in the Records~ Clerk or Clerk 3 General job,at Niagara Detention Centre. Brian Fraser, the local Union President, gave evidence that the job need involve no inmate contact so long as the employee did not eat his meals in the Correctional Officers' lunchroom. He said that he had never seen the office staff use interview rooms in the secure part of the institution. This evidence was con- tradicted by Fred Williams, the Office Manager, who stated that the -6- Records Clerk, as a necessary part of the job, had to interview inmates at times- in order to explain release dates and computation of sentence or fines. This occurred in the secure part of the insti- tution. It was agreed, however, that the Records Clerk did not receive a salary supplement for inmate contact, as do some other members of the office staff with regular inmate contact. Evidence was also introduced to show how a Correctional Officer's job could be redesigned so as to-remove the grievor from inmate contact. Normally, Correctional Officers at Niagara Detention Centre rotate through a series of jobs on shifts. One of those jobs is that of the Control WduleOperator:in the maximum and minimum security areas. The operator is locked in a central control module made of plexiglass from which he or she controls security grills, controls inmate movement, and maintains key security. Brian Fraser testified ;" that the Control'ModuleOTzcratoronthenight:shift would have no inmate con- . . . ...'. tact, except in passing through corridors to and from his station on breaks or at the beginning and end of the shift, Having considered the evidence, we must consider the mean- ing of s. 18(3a), quoted earlier. A range of issues are raised by the provision, such as the right to "bump" into a position which is not vacant, the~relevance of geographical location, and theobligation of the employer to make reasonable accommodation for the grievor by refashioning a job. This award will be by no means exhaustive as to the parties' obligations and rights under s.'l8(3a),. nor should it be, as the application of the subsection must vary with the facts of each case. All that we can hope to do is to elaborate -7- some guidelines which may assist in the resolution of other cases in which s. 18(3a) has been or will be invoked. One purpose of s. 18(3a) is clear - it is designed to restrict the Grievance Settlement Board's broad discretion in s. 18(3) .~ ~. to~substitute for dismissal a penalty which it considers "just and reasonable" in the circumstances. In cases where excessive force has been used against a'residenV,that discretion can no longer be' invoked to return the employee to a position with resident contact. The legislation seems to indicate that there is ~a concern that the conduct might be repeated and residents sho.uld be protected from such risk, however slight. As well, the legi,slation may be thought to provide some deterrent to such conduct on the part of other employees because of the gravity of the bar from the previous duties. While s. 18(3a) limits the Board's discretion, it should not betregarded as changing the nature of the Board's task in applyi,ng s. 18(3). The Board must still consider whether the penalty is just and:reasonable in the circumstances. In the past, the Board has been guided by concerns for corrective discipline and the various factors which have been held to be relevant to penalty so often quoted from SteeZ Eqtiipment Co. Ltd. (1964), 14 L.A.C. 356 (Reville) at 356-58. That task has not changed, although in applying s. 18(3) in a case where s. 18(3a) is operative, some tension may be created with the principles of corrective discipline. However, there is no reason to i g no re th'e existing jurisprudence with regard to penalty be- causeof s. 18(3a). So far as possible that section should not create a disproportionate penalty because of the particular Ministry in which an incident occurred northe timing of the disciplinary incident. -8- This brings us to the parties' submissions with regard to the application., of s. 18(3a) in the, particular case, Mr. Goudge, on behalf of the Union, argued that the grievor should be reinstated to a Control Module Operator's job at Niagara Detention Centre, thus maintaining his Correctional Officer 2 classification. Alternatively, he argued that the grievor be give~n the Clerk 3 General job,-preferably at Niagara Detention Centre, but possibly at Hamilton-Wentworth. This should only be done with the guarantee that his salary would be permanently tied to that of a Correctional Officer 2. ; Mr. Riggs objected to both submissions, arguing that the employer has no obligation to'create a position for the grievor and that the grievor is entitled only to a substantially equivalent . position ln which a vacancy exists, with pay calculated according to the normal level for that job. : :' There can be no doubt that a Correctional Officer's job without inmate contact would be the ideal job to fit the requirement of a substantially equivalent position. Unfortunately, there is no such job normally existing in that classification, for the main job function is custodial. It would only be possible to reinstate the grievor in a Correctional Officer classification if a job could be' designed to remove him from contact with and responsibility for inmates. It was suggested that a permanent assignment to the Control Module Operator's job would meet these criteria. There are several problems with this suggestion, however. First, the Control Module Operator's job does not seem to fit the requirements of S. 18(3a). -9- This is not just because the grievor might have~to pass inmates in the hall. Surely, the bar on contact in s. 18(3a) must be subject .- I to a de minimis reading - that is, isolated and infrequent contacts may not be barred. The concern would seem to be contact which might lead to further confrontations. Here, there might be some concern, as there would be regular passage through the secure part of the institution. This seems to create a problem, although at night the inmates would be locked up, In addition the Control Module Operator has direct responsibility for inmate movement, controlling the securitygrills,and s.l8(3a) prohibits'such responsibility for Inmates., More importantly, we are not prepared to. reinstate the grievor to such a job because it would require the employer to fashion a new position for the grievor. While this Board has in the past in the w case (240/79 - Eberts) ordered the employer to make reason- able'accommodation for a grievor, the circumstances were very differ- : :, ent from the present. A grievor was unable to fulfill the require- ments of a Correctional Officer's job, namely 'wearing a gas mask, because religious scruples prevented him from shaving his beard. The beard would interfere with the seal of the mask, and so he was demoted. This Board ordered that the Ministry make reasonable acconodation for him, in an award which is currently under judicial review. Here, in contrast, the grievor has a week claim to accommodation. He has been guilty of serious misconduct, and he has a relatively short period of seniority (just short of~two years at discharge). Furthermore, he has already shown misjudgment in relation to the 'operation of the module, as the reasons in the first award in this case indicate. Finally, on the evidence, it would not seem wise to order the kind of acconanoda- - 10 - tion requested here. It is rare to keep one person assigned to the Control Module Operator's job, except temporarily for health reasons, A- and evidence was given that it is important to have all the officers familiar with~the Module Operator's ~job. Therefore, the Module Operator's job is not one for which the grievor would be eligible under s. 18(3a). It may be that in another case there may be a stronger claim for accommodation. Mr. Riggs argued that the Board has no authority to order the employer to redesign a job, as:s. 17(l) of the Cram Employees 'CoZZectitie 'Barg&nin+A~t Teaves, job organization exclusively to management. That issue need not be determined here; as we see no grounds for such an order of accommodation. In considering the other jobsavailable, which are all Clerk 3 General jobs (at Mimico, Niagara and Hamilton-Wentworth), :: several problems arise. Section 18(3a) states that the grievor should receive a "substantially' equivalen,t job, rather than one .' "exactly" equivalent. In the search for factors of equivalence between jobs, several arise as possibilities: pay level, job content, geographic location, and level of skill and responsibility. In this ' particular case, the Union stressed the importance of preserving pay level and geographic location. In the particular circumstances, this is understandable. Content is a problem here, as it w o uld .~ seem to be impossible to find a job with the co nten t similar to that.of a Correctional Officer, but without inmate contact. That may not be the case where this section is applied in other Ministries. - 11 - In this particular case, we would agree that geographic location is a relevant factor in evaluating the jobs. The job ..- offered at Mimic0 is not substantially equivalent to those in Thorold and Hamilton. Even though the Ministry offered to pay relocation expenses, the financial cost of moving from Ridgeway to Toronto would be one,rous, as would.the alternative of commuting 103 miles each way daily. Furthermore, the grievor had family obliga- tions in Ridgeway which would prevent him from moving. Therefore, in this case, a position within commuting distance.from Ridgeway is necessary to meet the requirements of s. 18(3a). This conclusion should not be regarded as holding that a job must always be found in the same geographic~location. In some cases, a job.in the same classification or at the same pay level may arise at some distance from the grievor's home and there may be no other.gpsitions available nearby. In these circumstances, depending on other personal factors, such a job might be regarded as substan: tially equivalent. Again, it is important to stress the need for tailoring the section to fit each individual's circumstances. This.brings the jobs open for consideration to two: the Clerk 3 General jobs at Niagara and Hamilton-Wentworth. The first is filled by another employee at this time, but Mr. Goudge argued that the grievor should have the right to bump into that position. It may be that in some cases, the grievor must be given a right to a job that is not vacant, in order that the legislation will not make reinstatement meaningless or unduly onerous. However, in this particular case, bumping should not be considered. The grievor has been guilty of serious misconduct, and it would seem un fai r to i - 12 - allow him to bump an innocent employee, particularly in light of his relatively short period of seniority and the availability of a .;r similar job at Hamilton. The final question is whether the Clerk 3 General job at Hamilton can be regarded'as "substantially equivalent" if the grievor is paid according to the pay scale for that job. As mentioned earlier, the maximum rate of pay for a Clerk 3 General was $267.94 as of April 1, 1980 based on.a36% week. At the same time, a Correctional Officer 2' was paid on a 40-hour week based at $8.14 per hour ($325.60 per week), $8.35 ($334.00), or $8.63 ($345.20). ~~ ' Level of pay is an important factor to consider in assessi~ng. substantially equivalent positions. From the employee's point of view, it is probably the most important factor. Comparing the two levels of pay here, there is a substantial divergence in pay. Should :: the employee be reinstated to a Clerk 3 General position with the salary usually paid for that job, the result would be a burdensome one and, unlike the usual penalty for disciplinary action, it could be characterized as an ongoing one. Mr. Riggs.argued on behalf of the, employer that this Board has no authority to alter the salary assigned to the substantially equivalent position. However, the words of s. ~18(3a), when read with s. 18(3), give the 8oard.a broad discretion to shape a remedy to meet the circumstancesof each case so as to reach a just and reasonable result within the obvious restrictions imposed by.s. 18(3a). Pay level is relevant to a determination of "substantial equivalence", and protection of pay level may be important to deciding whether that 5 - 13 '- criterion is met and whether ~the penalty is "just and reasonable". However,.in decidi,ng whether to ensure that the grievor maintains the salary of his previous job (with associated increments) for the rest of his time in the substantially equivalent position, .- ~. there are considerations beyond those pertaining to the personal concerns of the grievor discussed above. In'this particular case, the two salaries are less divergent if considered on the same hours of work base -.e.g. 36% hours. This reduces the Correctional Officer range to $295.00; $302.69; $312.84. Furthermore, it is relevant to consider that a proportion of the Correctional Officer 2 salary reflects a premium paid for dangerous work (similar to the $1,000. premium paid to other Ministry employees with inmate contact). A person acting as a Clerk 3 General is not subject to hazardous condi- tions. As well, part of the higher salary may reflect the rotating shift aspect of the Correctional Officer 2 job. Finally, one has to consider the, general labour relations impact of paying one employee on a basis totally different from others doing the same job, partl- cularly an employee who has been guilty of serious misconduct. No doubt this would cause some discontent among employees. In weighing these considerations, we have reached a com- promise position in this case. The grievor should be reinstated to the position of Clerk 3 General at Hamilton-Wentworth Detention Centre at the rate of pay for a Correctional Officer 2 of his experience in May, 1980, and he should maintain that rate of pay until the maximum pay level for the Clerk 3 Generalreaches it. From that period, he should be paid as a Clerk 3 General. Such a decision places the grievor in a substantially equivalent position - 14 - at the date of reinstatement. Although the job content of his former and new jobs differs, this cannot be avoided. He is guaranteed his previous salary-as:of the date of reinstatement. to leave the grievor While the effect of this decision is with ongoing effects from his misconduct, and heavy penalty, that result seems consistent w , therefore, with a very ,ith the requirements of ss. 18(3) and 18(3a), the labour relations cons?derations listed above, and the facts in this particular case. The essence of the award is that Mr. Travers should be given a second chance. It may be that an employee with longer seniority or faced with different circumstances ~' : should be treated differently. As well, future panels of this Board may not specify reinstatement to a particular Ministry, as we did in this award. If the search for a substantially,equivalent position extended into other.Ministries, there would be more flexi.bility in locating a suitable position. However, our search was restricted to ; :: the MInistry of Correctional Services because of the terms of the reinstatement. There will be no order as to compensation for the period between the date of the original award and the present award, as the Board has been requested not to deal with that matter. Should the parties fail to reach agreement, the Board will retain jurisdiction to deal with the matter of compensation or any problems arising out of the implementation of this award. r ‘i - 15 - DATED at Toronto this 18th day of Ju,ne, 1981'. /lb. . . ;: Prof. K. Swinton Vice Chairman "I concur" Mr.. E:R. O'Kelly Member : "Dissent to follow" Mr. D. Anderson Member