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HomeMy WebLinkAbout1979-0205.Kalina.81-07-21Between: Before: IN THE MATTER OF AN ARBITRATION Under The CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD For the Grievor: For the Employer: Hearing: Mr. Peter F. Kalina Grievor, - And - The Crown in Right of Ontario (Ministry of the Solicitor General) Employer M. Teplitsky, Q.C. Vice-Chairman G. Beaulieu Member K. W. Preston. Member M. Pratt, Grievance Officer ' Ontario Public Service Employees Union, w . Gorchinsky Chief Staff Relations Officer Civil Service Commission June 18, 1981 li A~ ‘9 -2 - This grievance alleges that Mr. Kalina was "unfairly, improperly and excessively disciplined" with respect to certain incidents on May 4, 1979. The grievor seeks (1) removal of documents in his personal file and (2) reinstatement on standby status. The facts can be briefly summarized as follows: The grievor is a Patholigist's Assistant and has approximately 10 years seniority. He was on standby duty on May 4, 1979. He was notified at about 4:lO a.m. by a Coroner's Clerk of a homicide case and was asked to contact the'police to arrange an autopsy for around 8:00 a.m. The grievor responded that he was not going to call any Pathologists at 4:00 a.m. and that he would apeak to the Police. After speaking to the Police, he telephoned the clerk and abused her about her call and used profanity with her. He told her never to call him again during the early morning hours to wake him. She notified the grievor's -/ Supervisor of the incident. The Supervisor spoke 'to the grievor when he arrived at work. The grievor was abusive toward him i and also used profanity in his dealings with him. On May 7, 19.79, the grievor ~received the following memorandum: U It has been reported to me that on Friday, May 4, 1979, while you were being spoken to hy your supervisor about your actions relative to a homicrde Investigation that you were extremely insubordinate and aggressive’in your behaviour. This kind of behaviour will not be tolerated in this Branch. i I am advising you that I am making note of this occurrence in your personal file and if there is a similar occurrence further disciplinary action will be taken. John Hillsdon Smith, M.D. Director Forensic.Patholofiy Branch" ! On the same day he received another memorandum which provides as follows: “This is to advise you.that effective this date you will not be subject to standby.duty. John Hillsdon Smith', M.D. Director Forensic Pathology Branch" Mr. Pratt conceded that the written reprimand was appropriate but that removal of standby was excessive discipline in the circumstances. Standby duty generates a considerable additional income for those who participate in it. The practice has been for the grievor to be on standby once every 3 weeks as the work is shared by the 2 Pathologist's Assistants and their Supervisor. -4- Mr. Gorchinsky submitted that the removal of standby duty was not disciplinary. He relied upon the May 7, 1979 memoranda, one of which is expressly disciplinary, the other which makes no mention of discipline. .He also relied on the evidence of Mr. Evans,. the Executive Officer of the Chief Forensic Pathologist, who stated that the griever's removal from standby was not disciplinary and not intended to be. Mr. Evans conceded that the grievor's conduct on may ilth with the Clerk was the reason for his removal. He claimed, however, that the grievor was a danger to the program and a homicide might not.be detected with the griever's attitude and it was for this reason that the grievor was removed. Mr. Gorchinsky also relied on the fact that the Collective Agreement does not guarantee any standby to any employee or require it to be equitably distributed. Accordingly, it is entirely within management's rights how to distribute the standby.' The grievor cannot complain about the loss of standby since it was, in effect, a privilege, not a right. A Board of Arbitration has no jurisdiction to interfere with management's exercise of its discretion in this case. Mr. Gorchinsky also referred to Brown & Beatty and in particular to the following statement at page 365 of their work: "It is generally recognized that the essence of a disciplinary sanction lies in its negative impact on an employee's work record." ‘. p’:- I ’ i -5- ,. r He ,submitted that the question of standby did not affect the employee's work record and was, therefore, not disciplinary. We are all of the view that despite Mr. Gorchinsky's thorough and able argument that the removal of the grievor from standby duty was a disciplinary act. It was to punish him for his conduct on the evening of May 4th.' That was its purpose. I I do not accept as credible Mr. Evan's assertion that unless the grievor were removed a homicide might go undetected. In my view this was an ex post facto attempt to justify the act and to disguise itstrue nature. There was no evidence whatsoever to support such an'inference and in fact, the grievor.'s long history points in quite a different direction. Having characterized the act as disciplinary, it is clear that we have jurisdiction under Section 1813) of the Crown Employees Collective Bargaining Act. I have no doubt that but for the grievor's conduct he would have received his share of standby duty until the present time. Nothing has been altered in the workplace to require less standby. ordinarily a lost work opportunity should be compensated for by providing an opportunity to recapture what was lost. Some- times the Collective Agreement prevents such a remedy. In this case, nothing in the Collective Agreement prevents such a course. ,e” -6- 1 It is, therefore, our award that the grievor be allowed standby twice a month, instead of once in 3 weeks, until standby is made up. We will remain seized if there is any difficulty in implementing our award, or if it becomes impossible to comply with its terms and to assure the grievor the recovery of his lost /~ opportunity. If the parties can 'agree on a different *rate" of recapturing the standby, we are content. I should add, that although.Mr. Gorchinsky vigorously opposed the issue of the employer's liability, he consented to this form of remedy as being appropriate and within our juris- diction. DATED this 21st day of July, 1981. M. T ‘~YLl’YSKX, U.C. Chairman &- I