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HomeMy WebLinkAbout1980-0480.Beaudette.81-07-31480/80 IN THE MATTER OF AN ARBITRATION Under The CROWN EMPLOYEES COLLECTIVE BARGAINING XT Before THE GRIEVANCE SETTLEMENT BOARD Between: Mr. E. A. Beaudette Before: For the Grievor: For the Employer: Hearing: - And - The Crown in Right of Ontario (Ministry~of Government Services) R. W. Ianni D. Middleton W. Walsh Vice Chairman Member Member R. Anand, Counsel Cameron, Brewin & Scott Mr. R. Shepperd, Assistant Director Personnel Branch Ministry of Government Services -2- The griever, Mr. E. Beaudette, has been employed since July 5, 1971, as a construction superintendent II. He has remained in that position until early 1980. As a construction superintent II the griever was required to inspect construction sites, with approximately 40% of his time taken up with travelling to various job sites and the rquaining 60% taken up in office work. On May 14, 1979; the grievor was involved in a car accident in which he sustained serious injuries. He was off work until June Ilth, 1979. However, just prior to May 14, 1979, his driving licence was suspended for a three-year period, i.e., until 1982. Dn March 12, 1980, the griever returned to work with a doctor’s certificate and reported to his immediate supervisor, XT. Minion, in the Kemptville office. Mr. Minion suspended the griever as he was unable to fulfill one of the job qualifications in that he was unable to travel between job sites. The griever grieves the “unfair suspension” and asks for a re-instatement to his former position or alternatively to comparable employment within the Ministry. He asked for lost pay and benefits. - These discussions ultimately led to an agreement, the essence of which is contained in a letter of June ?Sth, 19S0, from Mr. 3. Silver, Executive Director of the Ministry of Government Services Administration Division, to Mr. Beaudette. The letter contains an appendix A which sets out a series of It is agreed between the parties that the job of construction superintendent II requires a willingness and ability to travel. It does not specifically require having a licence. In the events leading up to this hearing a number of alternatives were discussed by the parties which would permit the griever to carry out his job responsibilities in spite of his personal inability to drive from place to place,because oL c the suspension of his driver’s licence. -3- conditions with which the griever must comp1.y in consideration of his re- instatement to his former position. This letter and its appendix contains the sum total of the agreement between the parties in the view.of the employer. The griever, on the other hand, contends that there are outstanding matters such as compensation and starting date which are not covered by the agreement and that while he signed both the letter and the appendix he did so without benefit of Union counsel. and was unaware of the true import of the letter. The position of the employer is quite simply that the grievance has been settled under terms and conditions as formally set out and accepted and signed by.:the grievor. To this scenario there is one additional fact which should be alluded to that being that the griever is the holder of a New York State driver’s licence. He took the initial position that it was sufficient to allow him . to drive in Ontario and so stated to his supervisors. Because of the importance of the letter of June 25th from Mr. Silver and its appendix I will set it out in full. June 25, 1980 Mr. E. A. Beaudette, 121 5th Street W., Cornwall, Ontario Dear Mr. Beaudette: I refer to the meeting held in the 12th Floor Boardroom on Thursday, June 19, 1980, for the purpose of considering a grievance under Article 27.3.3 of the lriorking Conditions Collective Agreement. *. “, \ -4 - You will recall that at the termination of the meeting, it was agreed in principle that, subject to compliance with legal formalities, Management would be agreeable to you being given the opportunity to use alternative modes of transportation for carrying out your duties during the period of suspension of your driving licence. Accordingly, I propose that your suspension be,terminated and that you return to your duties, provided that you give an under- taking (See Appendix A) respecting insurance and other requirements pertaining to transportation used by you in carrying out your duties. It is to be clearly understood by you that under no circumstances are you to drive while on duty during the period that your licence is suspended, and your Supervisor will be instructed to suspend you from duty if you are in breach of this . requirement. You will appreciate that if you are unable to perform your work assignments in a satisfactory manner under the conditions agreed, it may be necessary to terminate your employment. With respect to the question of suspension, in view of the fact that general agreement was reached on the day of our meeting, I have concluded that subject to the undertaking noted above, your suspension should be lifted effective June 19th. I regret that I cannot recommend an earlier termination of the suspension as I consider you to be ltirgely responsible for the delay in reaching agreement in this matter. If you are not satisfied with my decision, you may within fifteen days apply to the Grievance Settlement Board for a hearing. Yours very truly J. Silver, Executive Director cc: J.C. Thatcher G.A. Mann A.D. Gibson ’ W. Minion A. G. Marshall R. Shepherd R. Haggett, POSEU TO: -5 - APPENDIX “A” The Ministry of Government Services 77 Wellesley Street West Toronto, Ontario M7A lN3 / In consideration of my reinstatement to my former position of employment in your Ministry, I hereby undertake and agree to strictly observe and adhere to the following conditions: 1. I shall not drive a motor -vehicle in the course of my employment with the Crown in right of Ontario (the Province) so long as my Ontario driver’s permit remains under suspension. 2. Notwithstanding the above, I will diligently carry out the full normal duties and responsibilities of my position as a contract inspection superintendent and will make my own personal arrangements for travelling from one location to another as and when required by my employment. I understand that no government vehicle or chauffeur will be provided, and that the choice of alternative transportation shall, subject to clause 4 following, be my sole responsibility. 3. Should I choose to travel by means of either my own or some other privately owned vehicle driven by a third party dirver, it is understood and agreed that: (a) the driver will receive no remuneration from the Province and will not be considered as performing a service for or on behalf of the Province for any purpose whatsoever either as a Crown employee or as an agent or otherwise, nor shall he be considered as a “guest of the government” for the purposes of the group travel accident insurance policy which is maintained by the Province; (b) the driver will be fully insured and licenced to operate a motor vehicle within the Province of Ontario; (c) the privately owned motor vehicle shall be insured for use for business purposes and both the operator and the vehicle shall be covered against public liability and property damage in a minimum amount of SSOO,OOO.OO Proof of such coverage shall be provided upon the request of my supervisor; -6 - (d) notwithstanding the above conditions, I shall nonetheless be entitled to be reimbursed for my travelling expenses in accordance with the normal rates paid to government employees who use privately owned motor vehicles for government business; (e) I shall indemnify and save harmless the Crown in right of Ontario, Her successors and assigns, from and against all actions, damages, debts, accounts, claims and demands which may be made, brought or instituted against the Crown in right of Ontario in respect of any death, personal injury, loss or damage to property aris-ng out of the use of said motor vehicle in the course of my employment, regardless of the cause of said death, personal injury, loss o- damage to property. 4. For the purposes of travel reimbrusement, other than by privately owned vehicle as above set forth I must. choose the most economical means of transportation. In particular, taxicabs are to be used only when economically feasible. DATED at , Kemptville this 1980 14 day of July ,A:D. WITNESS: (E.A. BEAUDETTE) The position of the Union is that the purported settlement of June 25, 1980 and its appendix was not intended to deal with the matter of compensation. It dealt with travel arrangements and *e-instatement but it did not deal with the question of compensation for the period March 12th to / June 19th. In the alternative the Union argues that if the Board finds there was an agreement on the face of the letter and its appendix such agreement is vitiated because it was signed under duress by the griever. The griever 1 L . . -?- ~~ was in a desparate financial position at the time and there was no Vnion *ep*esent=tive present when he signed the agreement in spite of-the fact that i the union had been closely involved in the matter up to that time. In any event the Union contends that the agreement is invalid as it constitutes a settlement between the Crown and an individual employee. The Union having had no part in the formal &ring of~this agreement, it was argued that such an =g*eement flies in the face of the role of the Union as a collective bargaining.agent. Mr. Don Haggett, Staff representative for O:P.S.E.V., indicated that he had been involved in this grievance since the third week'in April. He had taken over the file from Mr. Sabourin. The forma1 grievance was signed on May llth, 1980 and.forwarded by Mr. Haggett to the,k!inister on May 26th, 1980.. Mr. Haggett indicated that he had examined the staffing standards manual in particular,that the part dealing with construction superintendent II and was satisfied that a driver's licence was not a formal requirement for the position. Accordingly, attempt by management to make it a requirement would be an arbitrary act. Since the griever presented himself for work and showed a willingness to travel, it was the position of the Union that his suspension for not having a driver's licence was unjust and he should be re-instated with full wages and benefits as of March 12, 1980, the day when he first returned to work with a full clearance doctor's certificate. Mr. Haggett was at the meeting of June 19th, 1980, with Mr. Beaudette.~ Also in attendance were Mr. Minion, Regional Manager, Mr. Silver, Executive Director and Mr. Shepherd, Assistant Director of Personnel Branch. Mr. Haggett recalls the deta,ils of the meeting which led to the terms of agreement as set out in the letter of June 25th. 1980. He recalled that the Ministry did not take the position ‘#at that meeting that a driver’s liccnce ms a requirement of the job of construction superintendent II. He recalls that there was some extensive 6 * / -8- discussion regarding Personal arrangements that were to be made by the griever for travelling from one location to another. Various alternatives were t e ques&on or &urance and liability in the t iscuss d as er including public transport/,, event that the grievor decided to engage a driver. Haggett states that there was no agreement with regard to compensation although he had expected that since the grievor was not responsible for the delay he would receive compensation. With the exception of the matter of compensation and the lack of the starting date for the griever’s return to work, Mr. Haggett indicated that Mr. Silver’s letter of June ZSth, 1980 accurately reflected the general agreement that had been reached at the meeting of June 19th; Mr. Haggett indicated that he received a copy of Mr. Silver’s letter on July 9th. He spoke to Mr. Minion on Friday, July 11th and his secretary received a phone call from Mr. Beaudette about the proposed settlement but Mr. Haggett does not recall having had an opportunity to discuss this matter directly with the griever. In a careful examination of the events which led to this grievance and in reviewing the evidence there is in essence little dispute on the facts. The griever returned to work on March 12, 1980, and remained there until approximately 2~30 p.m. at which point he was told to go home by his supervisor, Mr. Minion. On his first day at work the grievor was asked to review some documents and to go to Ottawa. There was some discussions regarding the use of public transport which Minion said was unacceptable. There was also discussion revolving around the grievor’s New York driver’s licence. Mr. Minion asked for proof of the validity of the licence. The grievor offered that his lawyer :: had informed him that his New York driver’s licence was valid for driving in Ontario since the griever had a New York address. However, Mr. Minion asked for proof of this and offered to make a telephone call to the Provincial Police in this regard. The griever’s testimony on this point is not -9- clear as’he does not remember Mr. Minion having made this particular offer. There.was no discussion about a private chauffeur at this stage although the question of insurance was raised,. Mr. Minion wrote to Mr. Beaudette on slarch 24th, 1980, in the following terms: “You were sent home without pay as you could not produce evidence that you were legally able to drive in Ontario or provide an acceptable alternative for your travel from this office to construction projects or from one construction project to another which is a requirement of your position. At that time you indicated to me your lawyer had told you your New York State driver’s licence was legal and that you would obtain proof for me it is. As eight working days have elapsed since that time without hearing from you, we would ask you produce evidence that you can carry out your duties ’ to the full extent of your job description at the pearliest opportunity and not later than March 31, 1980.” On April 8th the grievor wrote to Mr. Minion in which he states the following: “I produced a valid New York State driver’s licence and all the proper insurances. My attorney feels that it is valid in Canada and Ontario however we are still waiting for a ruling from the Ministry of Attorney- General at ween’s Park.” The letter goes on to state that the use of privately owned automobiles on the employer’s business is not a condition of employment. The grievor proposes the following alternative in this letter. “We also feel that an acceptable alternates (sic) to and from construction projects are bus and train or our own vehicles going to different cities and towns on a daily basis.” After setting out in some detail bus schedules the griever concludes by saying “We therefore maintain that public transit is an acceptable alternative to private vehicles.” . .’ On April 18th Mr. Minion replied to Mr. Beaudette’s letter confirming that the griever had produced his New York State driver’s licence. k!r. Minion’s reply goes on to state the following: We note that you have not yet received this confirmation (that’it is valid for driving in Ontario) from the Attorney General and we are prepared to assist you in this matter. If you would’ forward your licence or a copy of your licence anda copy of the letter you wrote to the Attorney General, we will try to expedite the enquiry on your behalf.” Mr. Minion then goes on to reply specifically to the alternative raised by Mr. Beaudette: “With respect to the use of private owned vehicles by employees, we agree that the provision of a private owned vehicle is not mandatory, however, if an employee does provide his private owned vehicle for government business and is paid for mileage allowance, the employee is required to provide motor vehicle liability insurance to a minimum of $100,000. (public liability property damage). Whether privately owned or government provided vehicles are used, a driving licence valid for Ontario is required. We have also considered your comments with respect to the use of public transit systems for bus and train, and we do not consider them adequate to cover the geographical area supervised by this Region, nor would it provide you with adequate flexibility to adjust to our schedules of site visits, meetings and inspections as the situations arise.” The letter ind~icates that Mr. Minion attempted to contact the grievor by telephone on April 18th but was unsuccessful. Accordingly, he sent the letter by registered mail. The next exchange in correspondence took place on Flay 24th and 26th of 1980 wherein Mr. Minion informs the griever that his formal grievance .on the matter had been denied, whereupon Mr. Haggett submitted the grievance to the Deputy Minister for his action.’ This led to the meeting of. June 19th, 198~3, and Mr. Silver’s letter of June 25th which set out the terms of the - ll- proposed settlement The griever acknowledges that he rece’ived Mr. Silver’s letter on or and about July Sth, 1980,/concedes that the terms set out therein were along the same lines as those discussed at the meeting of June 19th. Some time after July 8th the griever spoke to Mr. Minion and was informed that the government was short of inspectors and that they would like the griever back at work on Monday or Tuesday of the following week. The griever indicated that this was not sufficient time for him to arrange for the purchase of a car and hiring of a driver. In any event the~grievor returned to wor.k on July 14th at approximately 8:lS a.m. He was called.into Mr. Minion’s office for a meeting which lasted approximately one hour and a half. Also in attendance at this meeting was Mr. Balenger of the Ministry. In the course of the meeting Mr. Minion reviewed for the griever a series of rules and regulations most of which would have been familiar to the griever but including as well new rules such as that requiring everyone to physically report back to the office at 4:30 each day. It was on this point that there was some discussion as it appeared unusual to the griever that he would report back to the office each day, when on many occasions he would be on his tour of duty somewhat removed from the,office. Other matters touched upon at this meeting were filling out of expense reports which apparently had become more detailed since the griever’s departure and the question of overtime work. The griever in his testimony on the events which surrounded his return for work on July 14th, 1980, indicated that he was somewhat upset during the course of his meeting with Mr. Minion and Mr. Belanger and indicated “Minion and I were at each other’s throats. Voices were raised although Belanger did not get involved .‘I The grievor acknowledges that there was no comment on the question - 12 - of compensation. Mr. Beaudette acknowledges that he signed a copy of Mr. Silver’s letter as well as the appendix in the presence of Mr. Minion and Mr. Belanger. He indicated that Mr. Minion said to him “Sign it before going back to work. If not don’t go back.” He also indicated that Mr. Minion told him what to write on the letter. The handwritten endorsement reads “I understand and accept the terms. E.A. Beaudetten The appendix provided a specific space for the griever’s signature as set out above. \ On cross examination the griever reiterated that he fully understood the contentsof the letter and appendix of June 25th and signed in the presence of Belanger and Minion. He did, however, go on to say that “I don’t believe it had anything to do with compensation and I didn’t think that the letter or the appendix dispensed with compensation.” Mr. Minion’s evidence confirmed the position that had been taken by the Ministry as evidenced by the written documentation. At the same time it coincides with the griever’s account with the exception of two points _, the first being the precise recollection of Mr. Minion that he offered to accompany the griever to the Ontario Provincial Police office in order to verify that the griever’s New York licence was valid for the purpose of driving in Ontario. Minion indicated that the griever did not want to go to the OPP. The griever’s evidence on this point was merely that he informed Mr. Minion that his lawyer had indicated that the licence was valid for purposes of driving in Ontario. The second point of disparity relates to the atmosphere of the meeting of July 14th when the griever retuned to work. Mr. Minion states quite clearly that the atmosphere of the meeting was quite,congenial. There no were/tensions and the discussions took place in a normal manner with Mr. Minion reviewing in detail the office procedures and regulations to ensure that the griever was fully aware of any changes that may have taken place. His account - 13 - of the meeting obviously varies significantly from that which the griever ’ presented. In addition Mr. Minion’s testimony revealed that a telephone’ conversation took place on May 9th, 1980 in which the grievor for the first time suggested that he would provide his own transportation by hiring a driver to take him around. The griever asked if this was worth considering and Mr. Minion replied that if the griever would submit it in writing he muld determine from his superiors if it were a viable alternative. Mr. Minion testified that he then expected. a letter setting out this alternative but received instead the formal grievance dated May llth, 1980. Mr.. Minion ‘also testified that he discussed a July 7th starting date with the grievor shortly after the letter of June 25th was sent. However it appeared that the griever would have some. difficulty in relocating and hiring a driver inthat period. Accordingly Mr. Minion agreed to grant the griever an additional period of time in order to ultimately arrange his affairs and they /establishedthe July 14th starting time. Mr. Minion indicated that in the discussions which followed the June 25th letter no mention was made of compensation. Mr. Hattett indicated in his testimony that Mr. Silver’s letter of June 25th was received &his office on July 9th. Mr. Haggett spoke to Mr. Minion on July 11th but did not in fact speak to the grievor between the 11th and 14th of July. The griever had, however, left a message with Mr. Haggett’s secretary in this period. Mr. Minion acknowledged that it was during the course of his meeting of July 14th that he decided to have Mr. Beaudette sign the letter as well as the append ix. He further acknowledged that he did not advise Mr. Beaudette to have Union personnel present or to get the Union’s advice on the matter. He was aware that the griever was on welfare at the time and on cross examination reiterated that there was no nervousness, hostility or heated discussion at the meeting of July 14th. Nonetheless, hP did acknowledge that this was his first grievance and he was rather nervous about any repercussions and accordingly he a ‘!. - 14 - wanted the agreement signed. It is against this background that it is difficult for us to appreciate how, with this apprehension and with a lengthy review of rules and procedures touching upon such matters as reporting back to the office and expense accounts, that there may not have been some nervousness and hostility at the meeting of July 14th. In any event we are satisfied that the grievor read and understood and certainly signed the letter of June 25th. and its appendix and was aware or should have been aware of the consequences of signing it and he did return to work on that day. Accordingly, this would certainly satisfy both the objective and subjective tests developed by the case law in matters of this nature (Re Moore 128/79 and Re Furray 54/76). As well it is to be noted that the griever had the letter of the 25th for some time prior to his meeting of July 14th, he had discussed certain aspects of the letter with Mr. Minion and had contacted his Union office on the matter as well. Accordingly it cannot be said that any discussion of the letter at the July 14th meeting would have been either unexpected or precipitous. Put in its very best light it may be considered that the employer had some indication that the contents of the letter of June 25th were not totally satisfactory (and here I impute what may have been a conversation which took place between Mr. Minion and Mr. Haggett) . In any event no mention of back pay or compensation was raised by the griever at the meeting of July 14th. In the light of these circumstances I cannot agree with the. arguments made on ,behalf of the griever that he was under duress at the time he signed the agreement, and therefore it is not binding. The second argument made by counsel for the griever was that there was in fact no just cause for the suspension on a strict reading of the terms of staffing standards manual, since a driver’s licence was not a specific requirement for contract inspection superintendent II. Nhile we have no difficulty in agreeing with that position we do however find that the position of the employer was set out in detail as early as July 16th 1979 in a letter from Mr. Minion to Fh. Beaudette regarding his return to duties as contract . . - 15 - inspector. In that letter Mr. Minion indicates that it has come to the attention of the employer that %r. Beaudette’s driver’s licence had been suspended. Here the letter goes on to say: Wowever, if you should recover sufficiently to return to work prior to re-issue of your driver’s licence, you will be ‘expected to carry out your duties to the full extent of your job requirements. Your means of transportation between job sites must be arranged by you since government vehicles will not be provided for this purp0s.e.” It is difficult for us to conceive how the requirements could have been more clearly or more fairly spelt out in the circumstances. It seems to me that the onus has been placed on the employee to make arrangements for travel from job site to job s’ There are no limiting conditions which are placed on thosearrangements although it is to be assumed that it would have to meet with the approval of the employer as regards insurance coverage and’the like. On at least two occasions the grievor himself may have been responsible for not having expedited the matter. As early as March 12, 1980, he was asked to provide some verification that his New York State driver’s licence was valid for purposes for driving in Ontario. Indeed the employer agreed to assist in getting such verification. The grievor did not take advantage of the offer of the empIoyer nor indeed did he provide ,the / proof which he indicated would be forthcoming from his lawyer. Secondly on May 9th, 1980, Mr. Minion expressly asked the griever to submit in ir+ting his proposal to hire a driver zo take him from.point to point. This in fact was never done. This alternative which was ultimately accepted was only raised in a meeting of June 19th. While the employer may have been more forthcoming with regard to suggesting various alternatives such as a private driver it seems to me that there must be a higher onus on the employee to attempt to meet the requirements of his job responsibilities. In addition the employer had made it clear that the employee’s means of transportation - 16 - between job sites must be arranged by the employee himself: If there were delays in getting the griever back to work one cannot help but draw the conclo’sion that to a great extent the g’rievor was the author of his own misfortune. The letter of June 25th and its appendix certainly appear onany objective reading to~incorporate the elements of final settlement. To the extent that the grievor or the Union may have consider& an element to be missing they had the opportunity to raise that before July 14th and in fact it is to be noted that if the parties were not satisfied with the,decision of the ~WUtive Director within 15 days they could have applied to the Grievance Settlement Board for a hearing and were reminded of this in the letter. At this point I should repeat the paragraph of the letter of June 25th which indicates: “I regret that I cannot recommend an earlier termination of the, suspension as I consider you to be largely responsible for the delay in reaching agreement in this matter.” The suspension in fact was lifted as of June 19th, 1986, when a viable alternative was first submitted to the employer and accepted b' it* It should also be noted that the grievor was given a short extended period of time within which to report in order to allow him to make Personal arrangements* In any event on a close reading of the wording of the letter it is difficult to draw any interpretation other than the termination of suspension would take place at a given date. It is difficult to infer other terms into this specific state- ment . It is obvious that on a plain and literal meaning the ‘end of the matter would be the termination of suspension at which time salary and benefits would be started up again for the griever. .%ny question of retroactive pay would have been precluded from the following statement which indicates that the writer could not recommend an earlier termination as he considers the griever to be . . .s - 17 - largely responsible for the delay in reachingthe agreement in this matter. Finally the Union also agrees that the agreement onthe part of the griever himself to the terms and conditions as set out in the letter of June 25th mauld ultimately undermine the status of the Union as the exclusive bargaining agent for the employer. This would, in effect, it was argued allow private arrangements to be entered into between the employee and employer. It is to, be noted by Article 27.5 of the Collective Agreement that the employee at his option may be accompanied and represented by an employee representative at each day to the grievance procedure. There can be no doubt the grievor had the advice and assistance of the Union. He had the option of not signing the agreement on July 14th and could have waited to have the further advice of his Union prior to signing the document and returning to work. Any interpretation regarding the exclusivity of the Union status which tiuld expressly preclude an individual such as the griever from signing final agreement a copy of which had been sent in advance to the Union officials , ,would be much too restrictive’ for us to adopt here. (In Re Retail Wholesale Hotel and Restaurant Employees Local 448 and Guild Work Inn (1968) 19 L.A.C. 407 (Palmer)). There is obviously a very important distinction here between the facts of this case and the leading case of ElcGavin Toastmaster Limited v. Ainscough et al. (1975) 54 D.L.R (3d) page 1 (S.C.C.) in which the central issue was whether or not: in spite of the Collective Agreement, individual contracts of employment exist. No attempt here was made to enter into an individual contract of employment. The Union had been involved with the negotiations which led up to the letter of June 25th. It played an important part in the discussion. It would be appropriate for the employer in this case to assume that the Union had been in touch with the individual griever and that if the griever chose to sign it was with the agreement or at least acquiesence of the Union. There was no attempt here on ’ the part of the griever to act independently of the Union or to act in a manner which would in some way undermine the status of the Union not as an agent or I _’ Accordingly, for all of the above reasons :ie dismiss :he grievance and deny tSe zrievor’s :?ah for any back :iages and benefi:s for rhe period of his suspension up to his re-instatmenc, effective June 1’3, l%U.