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HomeMy WebLinkAbout1982-0303.Hymers.84-01-25Between: Before: TELEPHONES 416/598- 0688 303/82 437182 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD OPSEU (Maynard Hymers) Grievor - And - The Crown in Right of Ontario (Ministry of Transportation and Communications) Employer R.L. Verity, Q.C. Vice Chairman L. Robbins Member P. Coupey Member For the Grievor: I. Freedman Legal Director Grievance Section Cntario ?ublic'Service Employees Union For the Employer: D.W. Brown, Q.C., Counsel Crown Law Office Civil Ministry of the Attorney General Hearing: September 13, 1983 - 2 - DECWION The Grievor, Maynard Hymers, filed two separate Grievances, both of which were heard separately by the Board on September 13, 1983. I. GRIEVANCE #437/82 In a Grievance dated August 10, 1982, the Grievor alleges unjust suspension on July 15, 1982 and that an investigation conducted by the Employer unfair and parti was removal of t benefits lost. on July 19 was "unjust, excessive and conducted in an al manner". By way of settlement, the relief requested he suspension and compensation for all wages and The material facts of the instant Grievance are not in dispute. The Grievor is employed as a Highway Equipment Officer 3 with the Stratford District of the Ministry. He is 40 years of age and has accumulated 12 years seniority. In April, 1982 the Grievor was charged with impaired driving under the Criminal Code of Canada. On July 12 he was convicted of that charge, fined $300.00 and received a three month driver's licence suspension. In a letter dated July 15, E. J. Zavitski, the Ministry's Stratford District Engineer, suspended the Grievor from employment without pay pending completion of an investigation (Exhibit 2). The reason for that suspension was loss of driving privileges deemed essential to the performance of the job. On July 19, 1982, District Engineer Zavitski conducted a "hearing" in the presence of the Grievor to inquire into the circumstances - - 3 - of the conviction. That hearing established the Grievor's loss of Gr Of driv ievor ficer ing privileges for the three month period. Clearly, the was unable to perform his duties as a Highway Equipment 3 without a valid driver's licence. On August 11, Mr. Zavitski again wrote to the Grievor advising that the suspension without pay was extended "until such time as the Ministry reaches a decision on the matter" (Exhibit 13). On August 16, 1982, the Ministry Regional Director, E. J. McCabe,wrote to the Grievor rescinding the suspension and effectively placed the Grievor on "off-duty status without pay" from July 15 until the reinstatement of his driver's licence. That letter, Exhibit 4, reads as follows: "As a result of the loss of your licence to operate a motor vehicle, consequent upon a conviction for impaired driving, you are no longer qualified to perform the duties of your position of Highway Equipment Operator. The possibility of reassigning you to another position has been explored, but there is no vacancy for which you are now considered to be qualified. This letter is to inform you that, effective from July 15, 1982, you are placed on off-duty status without pay until such time as you regain your licence, and your status will be reviewed at that time. If, prior to that time, a vacancy occurs for which you are considered to be qualified, you will be notified and consideration will be given to you. The suspension pending an investigation of which you were notified in Mr. Zavitski's letter to you of July 15, 1982, and which was extended by his letter of August 11, 1982, is hereby rescinded." - 4 - Mr. Zavitski testified that the Ministry policy generally was to the effect that where an employee whose job performance required a valid driver's licence lost that licence, the District would attempt to place the employee into a more junior classification which did not require a licence, if such a position was available. It was his evidence that no such lesser position was available in the District in July of 1982 to accommodate the Grievor. Frank Doherty,a District Patrol Supervisor, gave evidence on behalf of the Union that two Manual Labourers were hired on June 28, 1982 for ~temporary work on a Ministry special project at Clinton. Mr. Doherty's evidence was that both employees held valid driver's licences and at least one of' the employees, a Mr. Allin was required to drive as part of his job requirement. Mr. Doherty did not know whether the second employee, a Mr. Bellinger,was required to drive. Subsequently on October 12, 1982, the Grievor's licence was reinstated, and on the same day the Mi nistry reinstated the Grievor to his position as a Highway Equipment Of ficer 3. The Union's argument was that the Ministry's action con- stituted a "disguised punishment" and a "constructive suspension" for three months. It was further argued that the procedure that should have been adopted by the employer was to lay-off the Grievor pursuant to the Job Security provisions set out in Article 24. In - 5 - addition, the Union faulted the Ministry for failure to canvass the availability of positions in other regions of the Ministry or for other positions in other Ministries. The Employer rejected facts as a disguised punishment Mr. Brown, on behalf of the Emp the Union's characterization of the , or that any discipline was involved. loyer, admitted that the Ministry's t the laid-off characterization of "off-duty status" was improper and was no contemplated by the Collective Agreement. It was argued that proper characterization was that the Grievor was effectively but not entitled to the benefits of Article 24. Having considered the merits of the instant Grievance, we are unable to characterize the fact situation as a disciplinary matter. In our opinion, the Employer quite properly carried out an investigation on July 19 which established the fact of the licence suspension. The evidence fails to disclose any "unfairness" in that investigation. The Ministry took the action they did because the Grievor's position required him to possess a valid driver's licence. As a result of the three month suspension of his driver's licence, the Grievor was unable to perform a major component of the position. Having reviewed the evidence, the Board is satisfied that the Employer took reasonable steps to attempt to find alternate work for the Grievor that did not require a driver's licence during the .period that the Grievor's licence was suspended. We accept Employer's evidence that no such alternate work was availab the District. the le w ithin - 6 The Employer has made it clear that no disciplinary action has been taken against the Grievor. E. J. McCabe's letter dated August 16, 1982 (Exhibit 4) effective11 rescinded the suspension imposed upon the Grievor on July 15. Therefore, the suspension has no disciplinary implication and any reference to that suspension in the Grievor's records with the Ministry shall be removed. In view of the finding that the Employer did m.ake reason- able efforts to secure alternate work for the Grievor, we cannot agree that the Grievor was prevented in any improper fashion from working and, accordingly, we are unable to grant a remedy. II. GRIEVANCE #303/82 On April 7, 1982, the Grievor filed a Grievance alleging that a 21 day suspension on March 29, 1982 was unjust and unreasonable. No evidence was adduced at the hearing, and the matter proceeded by way of argument solely on the issue of the appropriateness of the penalty imposed. The Parties filed a Statement of Facts (Exhibit 2) which reads as follows: II 1. On Friday, January 29, 1982, Maynard Hymers came to work at approximately 8 PM in an intoxicated condition. 2. Hymers indicated on a time sheet known as the 'Maintenance Employees Daily Register' that he had worked for 8 hours on Contract number 7064, and signed his name in the space below his printed name at approximately 9 PM, one hour after he had commenced work on January 29, 1982. - 7 - 3. On Saturday, January 30, 1982, Hymers 'whited out' his signature and the contract number from the Daily Register. 4. On Tuesday, February 2, 1982, Mr. Gary Freeman (supervisor) asked Hymers about the episode. Hymers did not deny that he left work on January 29 to go home without informing a supervisor, and erasing on Saturday, January 30, 1982, the entries which had been made on the previous night." In a letter of discipline dated March 23, 1982, Stratford District Engineer, E. J. Zavitski,wrote to the Grievor and in so doing imposed a 21 day suspension without pay for reporting to work "under the influence of alcohol" and for "falsification of records" at the Clinton Patrol Garage (Exhibit 4 istry properly recognized the Grievor's problem and placed ). The Min him on the Ministry rehabilitation program. In assessi ng the appropriateness of the penalty imposed, recognition must be given to the fact that falsification of records is a serious offence that must be dealt with accordingly. Similarly, showing up at work in an intoxicated condition is another unacceptable form of behaviour. Fortunately, the Grievor made no attempt to drive on the day in question. We take into consideration the fact that the Grievor has no previous record of any similar offence and that the falsification of the records was directly attributable to the Grievor's state of intoxication on Friday, January 29, 1982. That finding is supported by the Statement of Facts (Exhibit 2) whereby the very next day the Grievor erased the entries that he fraudulently made the previous day. Accordingly, we are unable to find that the Grievor had seriously attempted to defraud the Government of eight hours pay when he was in a sober state of mind. - 8 - The Ministry is quite properly concerned about the deterrent factor in the imposition of the penalty. Considering all of the evidence, the Board is of the opinion that the penalty imposed is excessive and that we should exercise our authority pursuant to Section 19(3) to substitute an appropriate penalty. Therefore, the disciplinary penalty shall be set aside and a seven day suspension (calendar days) shall be imposed upon the Grievor. The Grievor shall be entitledto compensation for 10s wages and benefits as a result of the substituted penalty, save and except for the period of the seven day suspension. DATED At Brantford, Ontario, this 25th day of January, 1984 R.L. Verity, Q.C. Vice Chairman (Partial Dissent Attached) L. Robbins Member P. Coupey kiember PARTIAL - D IS s ENT --- I have revietied the Award of the Chai t-man on the above two grievances. I am able to concur with the result for grievance f/303/82, the effect of which is to reduce the penalty imposed on the griever from a twenty-one day suspension to a seven day suspension. I must dissent however from the Award with respect to grievance i/437/82. In my view, the Employer simply did not take sufficient reasonable steps to try to accomodate the griever by finding additional work for him. I would also observe that the Company first viewed the griever as being on a suspension, and then changed his status to one of being "off duty wi thout pay", and rescinded the suspension only on August 16, 1 982, one week after the grievance was filed. Therefore, it is clear that at least initially the Company viewed their action as being disciplinary in nature. This does not square properly with a view that at the same time they were taking all reasonable steps to accomodate Mr. Hymers by finding him an alternative position. On the question of remedy I am in agreement with the Chairman that any reference to the suspension in the griever's records with the Ministry shall be removed. In this way, this whole matter will have no effect on any possible future disciplinary matters in'volving the griever. However, based on my above comments, I would have granted the griever appropriate monetary relief as well. Respectfully submitted