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HomeMy WebLinkAbout1982-0413.McQueen.83-10-31413182 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD Between: Before: For the Grievor: OPSEU (Archiebald T. McQueen) Grievor - and - The Crown in Right of Ontario (Ministry of Correctional Services) Employer J. W. Samuels, Vice-Chairman E. McVey, Member W. Lobraico, Member S. W. Grant Counsel Gowling & Henderson Barristers .?I Solicitors For the Employer: J. F. Benedict Manager, Staff Relations Personnel Branch Ministry of Correctional Services Hearing: October 13, 1983 - 2 - The grievor received the following letter of reprimand dated April 28, 1982: The purpose of this letter is to implement an Award made by the Grievance Settlement Board, concerning a penalty which was awarded to you following a meeting that was held in my office on Tuesday, April 22, 1980, and again on Thursday, May 1, 1980, to enquire into the allegation that: "On or about Monday, April 7, 1980, while on duty at the Toronto Jail, you entered a security corridor without a Correctional Officer cover and in so doing, were negligent in your duty and also jeopardized the safe custody of keys." Based on the evidence presented at the two meetings, and at the direction of the Grievance Settlement Board, the allegation is substantiated and the penalty in this instance is to reprimand you for your actions. During the course of the meetings, I was greatly disturbed by your evasive answers, and by your obvious lack of under- standing of some of the primary elements of your job. You should make a concentrated effort to come to grips with the fundamental requirements of a Correctional Officer's position, in order that your performance might improve and thus avoid your continuing to come to the attention of admini- stration, through your involvement in the disciplinary process. I trust that the foregoing will assist you in becoming a better employee. On June 17, 1982, he grieved this letter and asked that it be removed from his oersonnel file. The letter was the Ministry's action in response to the direction of the Grievance Settlement Board in its award dated April 2, 1982 (McQueen, 430/80), wherein, following a hearing into a three-day suspension issued to the grievor, the Board concluded: We respect the thought that the Superintendent imposed the discipline as a corrective measure as he seeks to communicate to this officer just how serious was the breach of security. Nevertheless we conclude that a written reprimand, along the lines of the letter by Superintendent Starkie dated May 15, 1980, should appear on the grievor's record with the deletion - 3 - of the liability of three days away from duty without pay. We do this primarily because of our different view regarding the griever's good faith; negligent conduct deserves less of a penalty than deliberate wrongdoing. We hope that the hearing before us together with the written reprimand will sufficiently communicate to the grievor the need for a change by him in his approach to the position of Correctional Officer. The letter of May 15, 1980 referred to by the Board reads as follows: A meeting was held in my office on Tuesday, April 22, 1980 and again on Thursday, May 1, 1980, to enquire into the allegation that: "On or about Monday, April 7, 1980, while on duty at the Toronto Jail, you entered a security corridor without a Correctional Officer cover and in so doing, were negligent in your duty and also jeopardized the safe custody of keys. Based on the evidence presented at the two meetings, I feel that the allegation is substantiated. My decision as to penalty is'to remove you'from duty, without pay, for three (3) days, at the convenience of the Toronto Jail's staffing requirements. During the course of the meetings, I was greatly disturbed by your evasive answers, and by your obvious lack of understanding of some of the primary elements of your job. You should make a concentrated effort to come to grips with the fundamental requirements of a Correctional Officer position, in order that your performance might improve and thus avoid your continuing to come to the attention of administration, through your involvement in the disciplinary process. I trust that the foregoing will assist you in becoming a better employee. At our hearing, the Ministry argued that we had no jurisdiction to hear the matter because the "grievance" really relates to the implementation of the earlier award. On behalf of the grievor, it was suggested that the letter of April 28, 1982 goes beyond what was called for in the earlier award. In particular, the - 4 - grievor objects to the date "April 28, 1982" because it gives the impression that he had committed some recent pffence. Secondly, it is said that the letter should not have referred to previous meetings between the grievor and the Super- intendent. Thirdly, the grievor takes great exception to the last three para- graphs of the letter, characterizing them as "gratuitous, superfluous and unnecessary." It is important to emphasize the issue before us now. We are asked only to decide whether or not the letter of April 28, 1982 fulfils the order in the earlier award to issue a letter of reprimand "along the lines of" the letter of May 15, 1980. It is patently not our role to decide whether or not there is just cause for such a letter. Indeed, Union counsel did not suggest that we should hear evidence concerning the incident in 1980. Bearing this in mind, it is clear that the letter of April 28, 1982 is "along the lines of" the letter of May 15, 1980. The earlier award took exception with the letter of May 15, 1980 only in the penalty imposed. This problem has been corrected. If the last three paragraphs of the letter (which are identical in the letters of May 15, 1980 and April 28, 1982) were deleted from the later letter, then the second letter would not be "along the lines of" the earlier letter. The earlier award did not call for a bare reprimand, but for something "along the lines of" the earlier letter. In conclusion, we find that the griever's real complaint is with the substance of the final penalty imposed by this Board in its earlier award. We have no jurisdiction to rehear or reconsider that penalty. The Board ordered a 3 .:c - 5 - written reprimand "along the lines of” the letter of May 15, 1980 and the Ministry has complied clearly with that instruction. For these reasons, the grievance before us is dismissed. Fone at London, Ontario, this 3(>e day of a.6 , 1983. “I Concur” _-_ A- E. McVey, Member “I Concur” ~~~~ ~. W. Lobraico, Member - 6 - EXHIBITS - 1. McQueen, 430/80 2. Letters of April 28, 1982 3. Letter of May 15, 1980 11, 1982 Letter of August --l I