HomeMy WebLinkAbout1983-0004.Hadad et al.83-07-12IN THE MATTER OF AN ARBITRATION
Under
THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT
~Before
THE GRIEVANCE SETTLEMENT BOARD
Between:
Before:
For the Grievors‘:
For the Employer:
Hearing:
OPSEU (El Hadad', et al)
Grievors
- and -
The Crown in Right of Ontario
(Ministry of Health)
Employer
E. B. Jolliffe, Q.C. Vice Chairman
S. J. Dunkley Member
K. Preston Member
S. Laycock
Grievance Officer
Ontario Public Service Employees Union
P. Mooney
Staff Relations Officer
Staff Relations Division
Civil Service Commission
August 19, 1983
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DECISION
Mr. David El Hadad, Chief Steward of Local 413
of OPSEU, presented a grievance on behalf of all members
of the Local at the Ottawa-Carleton Regional Ambulance
Service alleging that a memoranduni issued by management on
November 10, 1981, violated Article 12 of the applicable
collective agreement.
When the matter came on for hearing on August
19, 1983, Mr. El Hadad was examined and cross-examined as
a witness. After a recess for consideration the Board drew I :
attention to certain statements which had been made. by
representatives of the parties as well as by the witness,
and the parties were invited to adjourn again and prepare
their responses.
Thereafter, when the hearing resumed, repre-
sentatives of the parties announced that, having regard
to clarification of the issues raised by the grievance
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they had arrived at an understanding and would write
terms of settlement in due course.
The matter is therefore terminated for the time
being, but the Board remains seized and the hearing will
be reconvened in the event that the parties find them-
selves unable to conclude mutually acceptable terms of
settlement.
Dated at Toronto
this 22nd day of
August, 1983
K. Preston Member
EBJ:sol
!., -
'For the Eniployer
Hearings:
7/83
IN THE MATTER OF AN ARBITRATION
Under
THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT
Before
THE GRIEVANCE SETTLEMENT BOARD
Between: OPSEU (M. Insanally)
- and -
Grievor
The Crown in Right of Ontario
(Ministry of Correctional Services) Employer
Before:
,'
E.B. Jolliffe, Q.C.
R. Cochrane
G. Walker / j -,.
Vice-Chairman
Member
Member
For the Griever: Cavalluzzo Counsel " ~avalluzzo, Hayes pi. Lennon
Counsel
J.F. Benedict
Manager;Staff Relations
Ministry of Correctional, Services
February:18 1983
March 13, 1383 '.
,
-2-
DECISION
The grievor, Mr. Mohamed Insanally began work as a
Correctional Officer 1 on January 18, 1982, but his employment
was terminated with effect December 17, 1982, when he had
served as a probationer for approximately 11 months.
Section 22(5) of the Public Service Act is as follows:
A deputy minister may release from employment any public
servant during the first year of his employment for failure
to meet the requirements of his position.
A termination letter dated December 3, Exhibit 2,
addressed to Mr. Insanally and written by Mr. A.J. Dunbar,
Superintendent of the Toronto East Detention Centre, set out
reasons for taking action to terminate. The letter made the
.following statements:
A meeting was held July 28, 1982, with you in attendance. This
meeting was to disaiss your performance as a correctional officer.
Several issues of your performance were discussed at length,
including your problem relating to staff. I indicated at this
meeting that I would reassess your performance in the Fall.
A second meeting was held September 3, 1982. You were again
present and we discussed your job performance at-d several issues
tiich had taken place since the previous meeting with you.
A third meeting was held with you on November 19, 1982. At this
meeting we discussed your suitability as a correctional officer.
We problems you were having with your fellow officers was the
major issue at this meeting.
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You ware allowed to read all reprts available at' that tine that
staff had submitted re your compatability with staff and all
reports submitted by supervisors to that date.
As a result of your comments to me regarding some conflict between
v.hat was on some of the reprts and &at you felt staff would say,
I indicated I would delay my.decision until I further investigated
yourcomments.
I have now investigated your comments and I find that you have a
problem with your fellow staff and there is a serious compatability
problem with you and other staff.
My decision is to release,you from employment for failing to meet
the requirements of your position as a correctional officer.
This release is under sec. 22(5) of the public service act and is
effective December 17, 1982
On December 6 (still during the eleventh month of his
probationary status) Mr. Insanally presented the following
grievance, Exhibit 3:
I grieve that the employer has dismissed me without just cause
and is attempting to camouflage it as a release under the public
Service Act.
As the "settlement required," the grievor said: I
I request reinstatement to my former position and classification
with reimbursement for any and all monies, credits ard seniority
lost, and that the incident be stricken from my record.
Thus this case, like many others before it, raises
questions concerning the rights of probationary employees under
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the applicable collective agreement and also under Sections
18 and 19 of the Crown Employees Collective Bargaining Act,
both of which must be considered in light of provisions in
the Public Service Act, particularly Section 22.
At the outset of the hearing in this case, counsel
for the grievor, Mr. Cavalaluzzo,' said he would require proof
that the "release" was what it is purported to be, and that Mr.
Dunbar had legal authority to take the action he did. For the
Employer, Mr. Benedict produced Exhibit 4, a copy of a document
setting out various powers delegated to various officials in
the Ministry of Correctional Services, signed by the Deputy
Minister on October 5, 1977, followed by the consent of the
Mlnlster, signed on the same date. Reference was made to
Section 23(l) of the Public Service Act, as follows:
With the consent in writirg of his minister, a deputy minister
may delegate in writing any of his powers under this Act to any
public servant or any class thereof in his ministry.
Exhibit 4 begins by referring to Section 23.
Included in the delegated powers are "Dismissal for Cause"
(Subsection (31 of Section 221 and "Release During First Year
of Employment" (subsection (51 of Section 221 and both have
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been delegated to --- among others --- "Superintendents of
Institutions." It is clear that the term includes Mr. Dunbar.
who is the Superintendent of the Toronto East Detention Centre.
Although contending that in this case there had been
a !release," not a "dismissal,".Mr. Benedict undertook to
tender his evidence fir,st. The only witness he called was
Mr. Dunbar, who has had 26 years of experience "in Corrections,"
including posts as Assistant Superintendent at Millbrook and
in charge of the Sault Ste. Marie Jail. He has been Superin-
tendent of the- Toronto East Detention Centre since November,
1976. As he said, the decysion to -"release". Mr. Insanally
was hiss decision.
The Centre has a staff of about 181 of, whom 131 are
Correctional Officers. It is supposed to hold 450 detainees,
many of whom are awaiting trial or' transfer to federal
penetentiaries.
Mr. Dunbar testified that "in 26 years this was the
first time I had complaints abouta~new employee from other
staff." He had talked. he said. with both Correctional Officers
in the bargaining unit and supervisors classified at a higher
-6-
level, OM15. Relations with other employees were discussed at
the meeting of July 28. Mr. Dunbar wrote the griever on
August 3 (Exhibit 7) reviewing the discussion and mentioning
two subjects: (1) an incident in June "where you missed
removing two (21 complete trays from the unit and a log entry
was made indicating all spoons were accounted for when in fact
they were not, U and (2) "your problems with staff." Mr. Dunbar
acknowledged that the griever offered explanations in reply to
both complaints.
Mr. Insanally's background is that of a school-teacher
in Guyana, and he made it a practice to reply fully to letters
from Mr. Dunbar. An example is his reply of August 4 (Exhibit
8) which is similar in content to the gricvor's testimony at
the hearings in this case:
'Ihank you for your letter of Aqust 3. 1982, in respect of
the meeting bald in your office on July 28 to discuss my prfor-
mance as a Correctional Officer to that date.
As I recall, you assured me that the meeting was a routine
procedure and that it was in no way disciplinary. You begun by
saying that you did not know what to say to me. My attendance
was 100% perfect. Reports from my Supervisors indicated
courtesy and proper deportment. Also, my monthly assessments
ware excellent. Ycu had, however, two concerns that ycu wanted
to discuss.
.
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First, an occurrence early in June when it was alleged that
twa trays and two spoons were not removed from a cell in a unit.
Also, it was brought to .your attention that szme staff were
.finding me incompatible. 'Ihe specific areas of "incompatibility"
ware not specified.
In respect to the first concern, I was given a memo to read
written by the then Corporal Stevens tie expressed a general
concern about spoons being left in the units, Corporal Stevens
sugested that I may have been tired and in undue haste hence
missing the spoons and trays in my count.
Regarding the second concern, "compatibility". the only
documentary statement on this drawn to my attention was a memo
by Lt. B. 'Ibompson'tiich after making encouraging remarks about
my deportment and certain observations about my lxrsonality went
.on to.conclude that there seemed to be time "incompatibility"
with other staff. Vague references to my tendency to be "intro-
spective" and not mingling with the crowd seemed to define his
concept of "incompatibility" and nothing disruptive or unco-
operative was mentioned.
.'lb the foregoing observations I pointed out that (1) the
spoons I counted out of the unit matched the number of spoons
logged into the unit and that my leg entry based M mymunt was
a ox-rect one. As for the missed trays, I told you that I am
myself baffled since I am usually very careful. Regarding being
"set up" as an explanation, I mentioned this only in the context
of advice given me by a Senior Officer who had cautioned me to be
watchful as he had information of a decision of a small "clique"
to write me up at the least opportunity. Ihat.was the only time
the.idea of being "set up" was mentioned ard neither you nor I
decided to give it any *eight.
May I now note in respect of the allegations about the qoons
that I find it surprising that from the date of the alleged
occurrence (early June) to the date of our meeting July 28. I was
not officially notified of the breach or required to write a
report as might te expectedto be the case.
.'Jbe "compatibility" problem on the other hand never existed
until our meeting which was the first time I heard it mentioned
since I started working at the M.T.E.D.C. May I note for the
records:
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(1) I pointed out during cur meeting that I was 100% certain
that ycu had no report on your files alleging my inability to
hark with fellow officers on the job in the units. lb this
you agreed.
(21 I have never complained at any time to any of my supervisors
or to you that I was experiencing such a problem. In fact I have
made a number of friends and established good relations in most
cases _
13) I assured you that it must be a small (sic) of Officers tie
have been unable to ad just to a “new man” and were probably trying
to exploit my vulnerability during the probationary period by
'%hisparing" negative ccmments.
(41 I pointed out that I wes aware of other Officers in the past
and at present ho were similarly victims of vague comments and
anonymous pressures until they passed the probationary period and
that I was certainly not going ‘to allow such to interfere with my
performance.
(5) It would be interesting in respect of the “compatibility”
problem (not mine as far as I am aware) to get the opinions of
other Supervisors and Officers with horn I have harked thereby
acquiring a more realistic picture of my ability to do the job
and to get on with staff.
II-B closing. may X pint out that since I st.arted working at the
M.T.E.D.C. I have fmnd the job and the training both satisfactory
and encouraging in respect of my expectations. I have at no time
encountered any difficulties which training, mmmon sense and a
gocd grasp of the basic principles of social ambiance muld not
enable ma to handle satisfactorily. Any job and the social re-
lations attached thereto present challenges that require improve-
ment and change in techniques and attitudes. I sincerely hope to
acquire more skill and knowledge in this job and I believe that even
the most miniscule opposition to me wouldwither away as I mntinue
to make the effort. I promised. to reduce the perceived differences
as far as humanly possible in whatever form they may be manifest.
I look forward to meeting yc~ again in the Fall with the hope
of greater assurances for the future at the M.T.E.D.C.
-9-
Mr. Dunbar in his testimony denied that he had "no
documents on file" and said he had disagreed with the griever
on that point. Curiously, however, no document critical of
the griever was introduced in evidence --- other than Mr. Dunbar's
letters. On the other hand; when being cross-examined, Mr. I
Dunbar identified'.eight appraisals completed by the griever's
supervisor, Mr. H. Hamilton. an OM15. and covering each month
from February 1 to, September 30. The appraisals were uniformly
favourable. repeatedly stating that the griever had a mature
approach to his duties, that .he"was polite to senior staff and
in dealing~with,oth&s, that he, was a willing worker with an
~in'cerest in his work and that his overall job per'formance was '_ .
satisfactory. Mr. Hamilton was, not called to, testify before
this Board but 'on ~November 15, shortly before.the release, he
had made the following report (E.xhib,it 13H) apparently on the
request of a Superior: . .; 8 ., ,
I have done Officer ,Insanally's monthly appraisal'since the
first of the year.
This Officer is a willing WORKER, who is polite when dealing (sic)
the Senior Staff, prcgressiq at an acceptable rate.
Officer Insanally has experienced problems in the.area of Security.
(ie) Inmates getting un-authorized drugs.
Other than the above mentioned incident, I can make no further
comment on this Officer's prformance at this pint.
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On September 3 Mr. Dunbar wrote the griever (Exhibit
9) reviewing their meeting on that day. It was as follows:
You attended a meeting in my office this date at my request.
'Ihe purpose of this meeting was to point ait to you (31 three
points of concern in your recent parformance.
(1) Cn August 26, 1982, you did submit a wrong count. ‘Ihat
in itself is not a large problem RA the fact that you sub-
mitted a munt taken from the book and did not count the inmates I
is a serious breach of security. You did admit at this meeting
that you did not take a proper .count. Your defence was that
your fellow officer, Mr. Chamney, was rmt pilling his weight on
that night.
(2) Behaviour on 5B: - ?his was as a result of a report from Mr.
Dvorak, the supervisor on Algust 30. 1982. who indicated that your
bahaviour was less than satisfactory. QI the same date there v&-e
inmate complaints made on %perintendent's Parade indicating the
same problem. YCX indicated at this meting that you did not agree
with Mr. Dvorak's report and felt it was unfair.
(3) Supervision of inmates in the drug roan: - A Ministry invest- '
igation into this incident where tm inmates were able to steal
drugs from the drug room while under your supervision, ingested I
the drugs and were hospitalized. recanmended that you be dealt with.
for the following:
(a) Failing to comply with Standing Order and procedures (Set 11.2):
(b) Failure to properly supervise the inmates.
It was obvious that you were not aware of the procedure we work to
and you indicated that the supervisor in the area did not advise
you on the procedure.
It is your responsibility to make yourself aware of procedure.
That is the reason we issue them to correctional staff. It is
apparent ycu are still having some problem in the role of a
correctional officer and I &vise you to pay more attention to
proper procedure and make sure you ask if you are in doubt.
.
- 11 -
Mr. Insanally wrote a 'very 'lengthy reply (Exhibit 10)
dated September 5. Mr. Dunbar says he did not see it until his
return to duty on November 12. 'but he must be mistaken because
on November 10 he summoned the griever to another meeting nines
days later. There is'no need to quote the grieVor’S letter of
September 5, which corresponds 'to his testimony. In short, he
admitted reporting an incorrect count (of ttie number of 'inmates)
taken from the unit log, but said he had promptly telephoned a
correction to a supervisor: he testified the Dvorak re@ort was
unfair and incorrect, being based on the complaint of an
inmate who had misbehaved; he said further that he was not
responsible for allowing inmetes into the'drug dispensary. an
incident which occurred during an emergency caused by flooding.
and he pointed out that~no 'Oprocedures" existed--for coping
with a flood. The griever concluded his letter withy the /
'following words:
'_
.I have so far found the job guite a challenge and can say that
each day I become more proficient in the roles of a C.O. I walcome
and learn from valid and constructive criticism. Such I expect
from my sqzeriors. Negative reproach and reprimand without dialogue
diminishes from the suparvisory role. and can harn'the learning
proficiency of the C.O. in the performance of his job. For this
reason, I fully appreciate you drawing to my attention any flaws
in my performance and providing me .tith the chance of improving
in the roles of a Correctional Officer.
- 12 -
In his testimony, Mr. Dunbar inferred that the lines
quoted above were a reflection on him. He may have been so
irritated by the griever's defensive explanations that he was
not willing to accept the literal meaning of the concluding
words. The griever is obviously more articulate than the ,
average correctional officer. whether speaking or writing. and
his communication skills have not served him well. at least :
not in 1982. Apparently Mr. Dunbar is not accustomed to '
receiving lengthy letters from officers under his command.
Mr. Dunbar's next meet.ing with the griever was held 1
at 7 a.m. on November 19. A personnel officer, Mr. J. Hannah.
and a union officer, Mr. J. Heaton. were also present.
According to Mr. Dunbar, the meeting lasted about 45 minutes.,
during which "I reviewed the year mainly on incompatibility x
and the refusal of certain employees --- four of them --- to
work with him. I had consulted 17 supervisors prior to the
meeting. He raised the names of those who would support him
--- SIX or seven. I then talked to them. all but two. All
were of the same opinion. That's why I made the decision.."
Responding to what had been said at the meeting of
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November 1,9, the griever on November 22 wrote his longest
letter (Exhibit 12) to Mr. Dunbar.
The first point'he made'was that Mr. Dunbar had said:
"I am satisfied with your 'performance on the job." In testi-
fying, Mr. Dunbar agreed, but added: "Satisfied with his work
as a CO alone --- but he couldn't get along with his fellows."
Secondly, Mr. Insanally conceded that he had been
given at the meeting several documents to read and initial.
One of them, he wrote. contained allegations by a C02. Mrs.
Ebbitt. that he was an aggressive and threatening person. that
he did not cooperate,with other officers. and that she would
leave if he did not. In testifying. Mr. Dunbar said Mrs.
Ebbitt, had'complained in writing in July of being threatened
by the grievor, but he had takeiinoydisciplinary action as a
result. Mr. Dunbar denied she had threatened to leeve. Her
complaint is not in evidence and she was not called to testify.
The grievor in his letter said: "I myself have found Mrs.
Ebbitt to be a quiet and soft spoken person and have never
exchanged an angry word with her."
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Third, the griever in his letter denied that he had
ever worked with an officer named Becta. although they had
been on the same floor. He said: "I never had an altercation
with Mr. Becta. I was in the unit feeding the inmates when
apparently Mr. Becta shouted to my partner Mr. McLeod who
wasgiving,cover at the grill demanding to have the tea jug.
I was not aware of Mr. Becta's vexed disposition until it was'
related to me after I came out of the grill door. This I am ;
sure Mr. McLeod would verify. Mr. Becta's report on Corporal'
Khan, c.o.3. alleging 'racial' tollusion. etc.. in handling ,
Mr. Becta's compaints against me would be best answered by I
Corpl. Khan..."
Fourth. the griever in his letter referred to critical
statements by a CO2 named Chamney and a CO3 named Dvorak. who'
has since been dismissed. These will be mentioned when reviek'ing
Mr. Insanally's testimony before this Board.
In concluding his nine-page letter of November 2.2.
Mr. Insanally made the following points:
.
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1. I have successfully completed the M.C.S. Basic Training Course
at Maplehurst. June/82.
2. I have successfully completed the M.C.S. Consolidation Course
at Maplehurst oCtobsr/S2.
3. 'Ihe comments of my tutors at Maplehurst should be relevant interms
of a) performance, b) co-operation and participation. ard c) future
potential.
4. I have completed institutional training ard tt-e C.P.R. at M.T.E.D.C.
5. I have never been absent. late. or reported sick or on Compensation
during the duration of my employment at M.T.E.C.C.
6. luring the course of my employment no inmate has ever escaped
custody nor have I been reported by any inmate as having used un-
necessary physical force in the process of restraint. By the same
token I have not reflected a neqlect in .the area of inmate discipline
and control:See Misconduct Reports submitted.
7. Similarly, I have never engaged in a fight or brawl. assaulted or
threatened to assault any Officer nor have I seen any report to that
effect tiich could be or has been substantiated.
8. I have mrked a total of approximately 12P.overtime shifts and
I have never refused to work with any officer or to work on any floor.
unit-or job assigned. In fact. ifovertime hours worked were to be
computed in relation to the completion of a year's probation I muld
be about three months E in thisrespect.
In cross-examination. Mr. Dunbar made clear that he
wasannoyed by Mk; Insanally's letters and understood them to
be a challenge to his authority. He said: "Yes. I do mind my
judgment being questioned." But he could not.,say whether he
had read the last letter. Exhibit,l2. when deciding to send the
.,:
release.letter of December 3. He agreed that the grie,vor had
worked 120 overtime shifts during 11 months: "Overtime.," he
said, "has been horrendous."
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Mr. Dunbar also explained that he had not thought
it appropriate. to "discipline" the grievor in respect of any
complaint against him because it was natural for a probationer
to make mistakes. If Mrs. Ebbitt had been "threatened." it j'
was up to her to "go to court" about it and he did not think
he had a duty to take disciplinary action.
Regardless of the result in this case. it is only fair
to make further reference to the testimony given by the grieve::.
Resident in Canada since 1975, the grievor was hired,
as a probationary Correctional Officer in January, 1982. Thera
were three units on each of the floors where he usually worked.
Two officers were assigned to a unit (which was divided into two
sections) and each floor had a CO3 as "supervisor".
For some time the griever's supervisor was CO3 Dvorak,
since dismissed. Rr. Dvorak, at that time was also President'
of the Local Union in the Centre. In that capacity he questicned
the griever about an overtime meal ticket which an employee I
named Beddoe was charged with stealing. The griever testified~
he had himself given Beddoe a ticket he did not need, and he so
.
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informed Dvorak. He objected when Dvorak implied that he was
lying _ On that point a verbal altercation arose during the
interview, which led the grievor to suspect that certain officers
wished to get rid of him. However, he said, he did not know
there wasa problem about alleged "incompatibility" until--his
interview with Mr. Dunbar on July 28.
Also discussed on July 28 was an- alleged threat against
Ms. Ebbit. The grievor denied it then and denies it now.
Another complaint was that of Mr. Becta. The grievor has test-
ified that during the interview, Mr. Dunbar warned him: "if you
don't improve relations with the staff, I could release you for
incompatibility."
The Campney incident of August 26 related to an in-
correct count. According'to the griever, Campney was not well
that night and remarked "you're going tom have to carry me through".
Campney took several "breaks" at irregular times, the griever
co-operating. During that shift the grievor found the log-book
count had been amended from 43 to 42. When telephoning to. make
a correction a 'recount was announced on the P.A. system. HOW-
ever, he himself did a body count and found 42. When Campney
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returned from a "break" they both made a count with the same
result.
On August 30 the griever had difficulty with an inmate
named Foote during a linen-change. He entered the incident in.
the log and the "supervisor," Dvorak at the time, reported all:
in order a little later. However, Mr. Dunbar mentioned an I
unfavourable report by Dvorak, which the griever said was a
"fabrication."
The most unusual incident seems to have occurred in
August also. Mr. Dunbar said the grievor failed to comply :
with Standing Orders, failed to supervise inmates properly and!
was not aware of
"the appropriate procedure." The griever's
version is different. He was doing an overtime shift in the
segregation unit on the second floor between 6 and 6.30 p.m.
when three toilets backed up and caused a flood; particularly :
to three cells in the medical unit. He had to bring out several
inmates and put them into the "bull-pen."
Apparently, supervisors left the griever in charge
of the problem and he claims to have battled the flood almost :
.
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alone for more than an hour, although maintenance staff turned
off the water about 7 p.m. The Chief Nurse, Ms. Schroeder, un-
locked the door of the drug room so that he could .clean it up
with the help of two inmates. They did the same with the
doctors' room. According to him, Ms. Schroeder and her assistant
were present when this work was done. Somehow, inmates managed
to steal drugs and later suffered from,overdoses , although the
griever says "there.was always one nurse looking on." Mr.
Dunbar seems to have held him responsible for what happened,
which is not consistent with Mr; Dunbar's statement at the
hearing that the griever's performance "as a correctional
officer" had been satisfactory. Mr. Dunbar failed to explain
to this Board what is the "appropriate procedure" (if one exists)
,in the event of a flood such as the griever was called upon to
cope with. Presumably it should involve active participation
~.
by at least one supervisor. There is an element of mystery
about the whole matter. Mr. Dunbar, who was not on duty at the
time, found fault with the griever on the basis of an investi-
gation by the Ministry --- the result of which is not in evidence.
The nurses --- surely the appropriate witnesses --- were not
called to testify. If the incident has any importance at all,
the nurses ought to have been called.
- 20 -
The griever could not recal .l any reference to "incom-
patibility" at his meeting with Mr. Dunbar on September 3.
However, the subject loomed large at the meeting of November 119.
That meeting was held exactly one week, Mr. Dunbar says, after
he received the grievor's letter of September 5, Exhibit 10.
The letter annoyed Mr. Dunbar, notwithstanding the concluding :
words: "I fully appreciate your drawing to my attention any 1
flaws in my performance and providing me with the chance of ;
improving in the roles of a correctional officer."
Mr. Insanally agrees that he was shown some written
I complaints (particularly by Mr. Dvorak) at the meeting of ;
November 19, and that he "had access" to supervisors' reports,.
but he says there was no mention of Mr. Hamilton's favourable
monthly appraisals. Mr. Dunbar told the grievor he was "taking
two weeks to decide whether I should stay on or be released."
There was no cross-examination of the griever, which
is not without significance.
The evidence (and the lack of evidence1 in this case
has been reviewed in some detai~l. Our reason for doing so is
-I - .
- 21 -
that we are exiiremely doubtful about the lwna~fides of Mr. --
Dunbar's decision to release the griever. The ostensible
reason for the release was a finding that Mr. Insanally had
failed "to meet the requirements of his 'position." A
fundamental question of jurisdiction arises .in this case and
unfortunately it will determine the result, but before dealing
with that question we think it proper to state our conclusion
that the ostensible reason given for the release was not the
real reason.
This regrettable conclusion is based in large part
on the testimony of Mr. Dunbar himself. It was'replete with
inconsistencies and unconvincing explanations.' For example,
he attached importance to a story about a threat of violence
allegedly made against Ms. Ebbitt. Yet he never at any time
.' took disciplinary action., If anything.merited discipline, it
would be, a threat of physical violence against a fellow-officer.
Of course, Ms. Ebbitt was not called to testify, and her report
--- if she ever made one --- is not in evidence. Nor is any
other unfavourable report. The only reports in evidence are
eight favourable appraisals by Mr. Hamilton, an O.M. 15,
whose duty it was to comment in some detail on the griever's
progress and performance.
.
,. I
- 22 -
Since the employer's only evidence is really that of
Mr. Dunbar --- his testimony and his letters to the griever --.-
we are left with a hodge-podge of hearsay, totally unsupported.
Mr. Dunbar seems to have ignored Mr. Hamilton's opinion and r-e-
lied on rumour or gossip purveyed by various individuals such
as Mr. Dvorak, who has since been dismissed. Mr. Dunbar statys
that his conclusion was supported by supervisors, not one of whom
has been identified, and by "others." We find such statement::
wholly unconvincing. Since Mr. Dunbar concedes that the griever's
work "as a Correctional Officer alone" was satisfactory, his :
whole case rests on a claim that the griever "could not get '
along with his fellows." Not a single fellow-officer was cal$ed
to support that claim, and it is irreconcilable with Mr.
Hamilton's repeated assertions in his appraisals that the :
griever was "a polite officer" and had a "pleasant manner when !
dealing with others," and "polite with senior staff." No
document in evidence suggests the contrary --- other than Mr.:
Dunbar's letters.
The true motivation for releasing the griever may
never be known, but perhaps Mr. Dunbar came close to it when
he said in cross-examination: "Yes, I do mind my judgment being
.
- 23 -
questioned." This was a reference to the griever's lengthy
epistles, which serve to illustrate that the griever is some-
what different from the average officer. There are circles
in which being "different" is unacceptable.
We turn now to the question of jurisdiction, the
answer to which points to the inevitable result in this case.
Simply put, the'employer's position is that this Board
has no jurisdiction to set aside a release under subsection (5)~
in Section 22 of The Public Service~Act. Another way of stating
it is that the Board's only power in respect of termination is
to adjudicate upon the merits of a "dismissal!' for cause under
subsection (3) of Section 22, which falls clearly within the
provision in Section 18 of the Crown Employees.Collective
Bargaining Act that an employee cla'iming to have been "dismissed
. . . . . without just, cause" may grieve "such matter" Andy further
may go to arbitration under Section 19.
As Mr. Bendict pointed out, the. release of.probat-
ioners has been an' issue in many previous cases. He relied in
particular on the exhaustive discussions in Leslie 80/77 (Adams)
1
- 24 -
and Haladay 94/78 (Swan) in both of which there were dissenting
opinions. Broadly speaking, what gained recognition in those
cases --- and subsequent cases --- was that there is a vital
distinction between the concept of "dismissal for cause" under
Section 22(3) and the concept of a "release" under Section 22(;'5)
which of course applies only to probationers. The former is I
subject to the rights set out in Section 18 and 19 of the CroLn
Employees Collective Bargaining
latter --- a release --- is not
grievable or arbitrable, and it
cases since Leslie.
Act: on the other hand. the I
by any statute expressly made;
has been so held in a number of
Carried to its logical conclusion, the doctrine seems
to mean that even if it were proved or admitted that a release
had occurred for wholly improper or unjust reasons. this Board
would have no jurisdiction to find a remedy. Such is the 1ogj.c
of the distinction between dismissal and release.
That logic, however, has been somewhat obscuredby
observations to the effect that a release under the Ontario
Public Service Act or a "rejection" under the federal Public j
Service Employment Act must be made "in good faith". For example
- 25 -
de Grandpre'J. in Jacmain '(1977) 78 CUC 14.117; (1978)
2 'SCR 1, observed that "there could only be disciplinary
action camouflaged as rejection in a case where. no valid or
bona fide grounds existed for rejection." In the same case,
Pigeon J. said:
Although I agree that..... an adjudicator has jurisdiction
to inquire !ðer what is in form of rejection is in substance 1
a disciplinary dismissal, I cannot agree that this does invests
the adjudicator with jurisdiction to review the deputy head's
decision as to the suitability of the employee.
And in Leslie the then Chairman of this Board stated
,
the fbllowing view of the Ontario Law:
lb restate our understanding of the relationship between these
two'statutes, we are of the opinion that the bona fides release
of an employee from employment made in good faith during the first
year of his employment for failure to meet the requirements of his
rosition cannot be cons$dered to be 'a dismissal as that term is
used in both the Public Service Act and the Crown krnployees Collective
Bargaining Act....,
Similar reasoning was'adopted' in,Haladay, where it was
said at pages 6-7:,
.
!-
- 26 -
There is a difference..... between a review of the greivance
on its facts and a review on the merits. A review cn the facts
may well reveal that, no matter how clearly the merits favcur
the griever, the Roar-d is simply unable to award any remedy.
Later in the same decision the majority dealt. at :
page 11, with another argument frequently raised: I
‘%a final argument t.o ba addressed is whether the release
of the griever was in fact a cclourable device concealing a
dismissal on disciplinary grounds, which wxild be arbitrable
. . . . . Although the Fmployer advanced a strong argument that
the import of Jaanain..... is to take all releases on pro-
bation beyond the scope of arbitral review, we have decided
. . . . . that the Leslie decision more accurately summarizes the
present position when it concludes that a disciplinary dis- I
missal will be subject to arbitration under S.l7(2)(c).
Section 17 is now Section 18. It will have been ,
noticed above that in this case ~the grievance of Mr. Insanall!r
al leged “the employer has dismissed me without just cause and.
is attempting to camouflage it as a release under the Public
Service Act. ‘I On that point it, was said in Haladay, at page 118:
We accept the Uhion’s argument that, based on Leslie. Jaanain
and Robertson. . . _ . the hallmark of dismissal is plnishmnt for
voluntary malfeasance, ard that. the Employer’s characterization
of the reasons for release must be tested against the objective
evidence.
- 27 -
The reasoning of the majority in Leslie and Haladay
has been applied in a series of other cases such as Tucker
206/78, Pekoskie 95/80, Nicholls 429/82, Walton 612-613181
and Leung 80/78. Nevertheless, three questions remain open
for discussion. The first is whether this Board has a statutory
power to act if satisfied that the "release" was indeed a dis-
ciplinary dismissal camouflaged as a "release." The second is
whether the Board has any power to act if satisfied that the
"release" was not bona fide, i.e. was not made for any valid
reason whatever, a question which has been skirted (but not
decided) in Jacmain and many other cases. The third is whether
Article 27.6.1 in the OPSEU collective agreement (also cited
in many cases) has any force under law, when it states that
"any probationary employee who is dismissed or released shall
1 '.
not be entitled to file a grievance."
As to the last question, Mr. Cavalluzzo, counsel for
the griever, challenged the reference to Article 27.6.1 at
page 6 of Nicholls. He referred to the early cases of
Eriksen 12/75 and Joyce 21/76 (Beatty) where it was held that
(1) the statutes do not exclude probationers from the rights
given by the Crown Employees Collective Bargaining Act. and (2)
"the parties are not. even in a ,bilateral context. competent
.
- 28 -
to fashion an agreement which offends the overriding purpose
of the legislative scheme....." Numerous authorities in both
the public and private sectors were cited in support of the
latter proposition.
Counsel pointed out that the reasoning in Joyce appears
to have been approved by the Divisional Court in Keeling 45/78,
where a decision of this Board was under review. III a judgment
for the Court, Reid J., before quoting at length from Joyce, :
observed: "It appears to us that the reasoning of the Board ;
in the Joyce case was appropriate to the present case." After
the quotations, Reid J. also said: "The lengthy dissertation.
in the Board's reasons is useful to us for we are called upon;
to decide whether or not it>s interpretation was patently
unreasonable. I speak for all of us when I say that we found'
those reasons of considerable assistance." The point dealt '
with was whether the parties to a collective agreement could i
lawfully deprive employees of rights confirmed by statute.
Keeling was decided by the Court on April 14. 1980.
The Court may not have been made aware of a change in the Board's
views, as expressed in Leslie, decided August 17. 1978. and j
Haladay, decided on June 5. 1979. That point is not, however,
- ,29 -
necessarily relevant, since the griever in.jKeeling was not a
probationer, and the issue (as stated by-the Court),was "the
failure of the griever to meet the time limit set out in the
agreement."
Mr; Cavalluzzo reviewed the evidence in this case,
pointing out,that no discipline had ever been imposed in respect
of the "incidents" mentioned by Mr. Dunbar, and emphasizing also
that Mr. Dunbar seems to have misunderstood the plain meaning
of Mr. Insanally's letters.
Counsel submitted that the 'Board has jurisdiction to
-determine whether there has been a bona fide release made' in --
good faith for failure to meet the requirements of: the position,
that the employer cannot camouflage a dismissal as. a release
in order to deprive the Board of- jurisdiction, and further that
the Board is'obligated to review a contested release and be.
satisfied that it is in fact what‘it 'purports to be;and finally
that the burden of proof is oh the employer to demonstrate that
the termination really is a release'.
:
Counsel for the grievor also contended that the em-
ployer had failed to meet the burden of proof, relying almost
exciusively on hearsay evidence and the tales of various
.
- 30 -
witnesses who were not called and therefore were not available
for cross-examination, contrary to a principle recognized in
the Canadian Charter of Rights and Freedoms, 1982. He referred
to an earlier judicial authority, Girvin and Consumers Gas Co.!.
(1973) 1 O.R. (2d) 421, in which the Divisional Court over- I
ruled a board of arbitration which (in the words of Holland J.j
at page 424) "made a finding of fact excluding, in effect, then
, evidence of the griever and relied exclusively on hearsay
evidence, some of which evidence was in conflict." I
Counsel argued that all the reasons given by Mr. ;
Dunbar for dissatisfaction with the grievor were based on i,
hearsay and ignored the appraisals made by the responsible I
supervisor, Mr. Hamilton, than which there could be no better
standard in judging performance. Counsel further suggested ;
that the employer's positjon amounted to this: even if the I'
Superintendent confessed he had no valid reason --- or no I
reason at all --- for deciding to release, his decision is not'
reviewable by this Board. But the unproven "incidents" mentioned
I
by Mr. Dunbar were all capable of attracting discipline, and oi
I
his view of their significance were the basis for a decision to
release, which was really a decision to dismiss. All such I
"incidents," said Mr. Cavallutzo, amounted to allegations of
- 31 -
misconduct, certainly reviewable by this Board.
In reply, Mr. Benedict said there were no disciplinary
grounds for dismissal. The termination was simply a release
under Section 22(5) based on the Superintendent's judgment that
the grievor failed to meet the requirements of his position:
such a judgment is within the Superintendent's province ,and is
not reviewable by this Board.
We have already stated an opinion-as to the merits of
this case: the evidence does-'not prove there were valid.reasons
for finding that the griever failed to meet the requirements
of his position. Indeed, there is evidence to the contrary. i.e.
evidence that he did in fact meet the requirements. For example,
there were eight favourable appraisals in writing by the respon- -
sible supervisor, a member“of management. There is also the
admitted fact that in exactly.11 monthsthe griever's services
were utilized for 120 overtime shifts, an average'of al;nost 11
shifts per month or 2.5 shifts per week, which suggests that he
was a willing and useful worker rather than a failure.
Thus, there can be sympathy with the view that an '
injustice has been done in this case. Nevertheless, our
.
- 32 -
jurisdiction does not extend to the rectification of all in-
justice and we are obliged to conclude that this Board has no
power to direct reinstatement as requested by the grievor. Our
reasons may be summarized as fo~llows.
I ia We do not find it necessary to rely on such cases ,
as Jacmain, so often cited. Indeed, Jacmain dealt with issues
of such complexity under the federal Public Service Staff i
I
Relations Act that in many respects it has created more confusion
than clarification. It is worthy of note that the Supreme Cqurt
produced three different judgments, one of which embodied the i
dissent of three out of nine judges.
Nor do we find it necessary to rely on Article 27 in' I
the collective agreement, which purports to deprive all pro- ,
I bationers of the right to grieve. For the extended reasons ,,
given in Joyce (and implied by the Divisional Court in Keeling.1
its effect under the existing statutes is doubtful. I
Further, we hesitate to pronounce on the question
touched upon in Leslie --- but not directly addressed --- and,
in other cases: i.e. if a release is not shown to have been , -~
.
- 33 -
decided in gdod faith, what then is the jurisdiction of the
Board, if any? To say that the Board has no jurisdiction
when the release has been made in good faith is clear enough,
but it fails to tell us what, if anything, can be done about
a release not made in good faith or not made for valid reasons
or made for no reason at all, or made by mistake.
Similarly, some of the language used in Jacmain and
other cases (such as references to an arbitrator's power to
inquire into the jurisdictional facts or in other words those
facts enabling him to decide whether he has jurisdiction) can
give rise to an inference that an arbitrator may --- in some
cases --- go further and adjudicate on the merits --- as indeed
.: '
the Court itself undertook to do in Jacmain. Such opinions
tend to stray from the over-riding authority of the statute
under which arbitral powers in the public service exist.
The problem here is that the effect of Sections 22(5)
and 23(l) in the Public Service Act is to vest in the Superin-
tendent of a correctional institution the power to make an
adverse judgment on a probationer and the power to effect a~.
"rel'ease . " Obviously,, such powers will not always be exercised
wisely or well, but we find nothing in legislation enabling this
Board to reverse the result.
.
- 34 -
In our view, the result here is determined by the
precise language of the applicable statute, which is the
Crown Employees Collective Bargaining Act. That Act in Sections
18 and 19 gives the Board very broad powers to adjudicate upon:
the merits of a dismissal or any other disciplinary penalty. ;
and to grant appropriate remedies. The Act is completely sileixt
on the subject of the release of an employee during the first I.
I year of his employment. The sole jurisdiction of this Board 1
has been created by the Crown Employees Collective Bargaining /
;. Act: no jurisdiction whatever has been given by the Public !
Service Act. Decisions under the latter Act may be reviewable
elsewhere: there is nothing in the statutes to suggest that !
I they are reviewable by this Board. except to the extent that I
classifications and appraisals are expressly made reviewable I
by Section 18(21(a) and (b) in the Crown Employees Collective I
Bargaining Act.
The fundamental principle here was clearly explained,
by Professor Swan at pages 3 and 4 of the majority decision in
Haladay, as follows:
This Board has dealt, over the years since its creation, with ;
a number of cases involving probationary employees within the
statutory, regulatory at-d mntractual structure which binds these :
- 35 -
parties and this grievor. We should note that cur jurisdiction
is statutory only, and has two main branches. First, we are
vested with jurisdiction to hear and determine disputes about the
interpretation, application, administration or alleged antra-
vention of the collective agreement; this jurisdiction arises urder
s.18 (now s. 19) of the O-own Employees Collective Bargaining Act.
Second, beyond that jurisdiction and independent of it, we have
the jurisdiction set out in s.17(2), (now s.18(21)..... We have
no other authority to intercede between the parties; we do~not have
any inherent jurisdiction to do justice - or tiat we may conceive
to be justice - or to provide remedies, no matter how desperately
a particular case may cry out for relief. The Board is a creature
of the statute, and derives its jurisdiction solely from the
statute. The cnly~ exception to that rule is that the parties may
povide for certain matters in a collective agreement. and our
jurisdiction is thus broadened to the extent that they have done
so. Beyond this circumscribed jurisdiction, the Board's legal auth-
ority is non-existent, and any decision rendered beyond those limits
would be a nullity and liable to be quashed before'a court.
T .
Manifestly, the application of such logic"can expose
anomalies and indeed injustices, which is what happened in the
course of hearing Mr. Insanally's grievahce. A ckrtain rather
'unlikely hypothesis wasposed: suppose the Super,intendent of a
'correctional institution,adm'itted in te'stifying that his, reason
for releasing a female probationer was.his personal belief that
women have no place in such an institution. If contrary to
government practice and.,policy --1 .as we understand such a
reason would be --- what is there .in-the Crown Employees _^_
Collective-Bargaining Act or any other statute empowering this
Board to right-that wrong? We can discover no authority to
intervene --- other than expressing an unenforceable opinion.
- 36 -
Counsel for the grievor was of the view that such reasoning
(in relation to the hypothesis suqgested)~ leads to a result
bordering on the absurd. So it may seem, but if the result j
be absurd it is attributable to the law as we find it now
exists.
I
There may be in future cases where obvious misconduct
by a probationer would perhaps lead the Board to conclude that
what purported to be a release was in reality a dismissal for
cause, and therefore reviewable. We are not persuaded that t.his
is such a case. What Mr. Dunbar described as "mistakes" not;
I worthy of discipline do not amount to miscon,duct or
1
alleged misconduct. Even if fully proved. as they never
I were, they would not constitute a record for which dismissal I
would be considered appropriate. Indeed, apart from a medley
of second-or-third hand gossip, no allegation of misconduct was I
ever seriously put forward.
I
In these circumstances it would be far-fetched to :
conclude that the Superintendent thought he had grounds for
dismissal under Section 22(3) but decided instead that it 1
would be more convenient to effect a release under Section 22(5)
of the Public Service Act. In our opinion, the Superintendent
ii .
knew very well that there were no grounds whatever for dismissal -
and therefore decided on release in the eleventh month of the
grievor's service.
We do not think the Superintendent had valid or proper
grounds for deciding to release the grievor but for the reasons
heretofore given we must conclude with regret that we have no
jurisdiction to reverse that decision or grant any other remedy.
Dated at Rockwood
this 12th day ofJuly, 1983
Vice-Chairman
"1 dissent" (Dissent to follow)
R. Cochrane Member
"I concur" (Addendum to follow)
G. Walker Member
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