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Home My WebLink About1983-0176.Crowley.83-09-29IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Between: Before: Before THE GRIEVANCE SETTLEMENT BOARD OPSEV (Gerald J. Crowley) Grievor - and - The Crown in Right of Ontario (Ministry of Transportation and Communications) Employer R. L. Verity, Q.C. ,Vice Chairman J. Best Member E. A. McLean Member For the Grievor: G. A. Richards Grievance Officer Ontario Public Service Employees Union For the Employer: J. Zarudny Counsel Crown Law.Office Civil Ministry of the Attorney General Hearing: June 27, 1983 5-- i -2- DECISION The Grievor, Gerald Crowley, alleges that he has been discharged without just cause. The settlement requested is reinstatement with full compensation for all lost wages and benefits. In addition, the Grievor claims interest at the current bank rate on all monies owed. A second grievance alleging unjust suspension was resolved by the Parties. The Hearing proceeded by way of brief oral testimony from one representative of the Ministry and from the Grievor. As the facts were not in dispute, the Hearing focused primarily on the arguments pf the Parties. In a letter to the Grievor dated February 1, 1983 (Exhibit 6), Deputy Minister, Harold Gilbert terminated the Grievor's employment pursuant to Section 22(3) of the Ontario's Public Service Act. That letter read in part: “It has been reported that, on June 19, 1982, and again on Jul y 3, 1982, you were charged with impaired driving and, on January 10, 1983, you were fined $1,000 and had your licence suspended for a period of twelve months as a result of the,above charges. These charges arose from your actions while off duty and in a private vehicle. As a result of having your driver's licence suspended for a period of twelve months, you have placed yourself in the position of being unable to perform your job for an extensive period of time. I am satisfied that you were aware of the consequences of losing your driver's licence, having acknowledged the Ministry Circular with respect to employees whose duties involve driving and who become ineligible to drive because of a suspension of a driver's licence." The Ministry alleged that the Grievor was dismissed in the non- disciplinary sense of the word as a result of his inability to perform his job following the licence suspension. -3- At the relevant time, the Grievor was employed as an Electrical Lineman in the Ministry's Stratford District. That District encompasses the Counties of Perth, Huron, Wellington, Dufferin and the Regional Municipality of Waterloo. The Grievor has 16 years seniority to his credit with the Ministry and has been employed as a Lineman since February 24, 1974. The Grievor's job requires him to perform a variety of duties at the sub-journeyman level in the installation and maintenance of electrical equipment within the District. The Position Specification for Lineman..(Exhibit 3) required the operation of R.A.D. (radial boom dereks), high level bucket trucks and other related equipment. In his evidence, the Grievor testified that he devoted 50% to 60% of his workind day "driving" equipment. In cross-examination, the Grievor admitted that he could not perform his job as a Lineman if he were unable to drive. Clearly, the evidence discloses that a valid driver's licence is a mandatory requirement for performance of the job of Electrical Lineman. The Ministry's evidence was to the effect that a pre-dismissal Hearing was held on January 13, 1983, at which time the Grievor admitted the conviction and acknowledged his inability to perform the job as a result of the loss of his driver's licence. Edward Zavitski, the Stratford area district Engineer,testified that at the time of the Grievor's dismissal there were no vacancies within the District and no positions were available to which the Grievor could be assigned without a valid dri~ver's licence. Mr. Zavitski satisfied himself that the Grievor was unable to perform his job and accordingly recommended dismissal. Subsequent to the dismissal, the Grievor's job has been performed by a member of the unclass- ified staff. In cross-examination Mr. Zavitski stated that no thought had been given to permit the Grievor to displace junior staff or unclassified staff. The district Engineer admitted in cross-examination that there were jobs that the Grievor was qualified to perform that did not require a valid driver's licence, such as "manual labourer, premium" and "sign painter helper". At the time of the dismissal, the premium labourers employed in that job all had greater seniority than the Grievor. However, the evidence was to the effect that one sign painter helper had less seniority than the Grievor. Mr. Zavitski testified that the Grievor had a satisfactory attendance record and that his general work performance was satisfactory. There was no evidence that the Grievor had any disciplinary record. The essence of the Ministry's case was that a non-disciplinary ' dismissal was an exclusive management right as provided for in Section 18(l) of the Cc. Accordingly, it was argued that the Board was without jurisdiction. Alternatively, it was the Ministry's position that even if the Board found jurisdiction, there was no reason to interfere on the particular facts of the instant Grievance. Briefly, the Union's argument was that the Board had jurisdiction to fashion an appropriate remedy pursuant to Section 19(3) of the Crown Employees - 5 - Collective Bargaining Act which allegedly permitted a review of all forms of dismissal. The Union's contention was that dismissal was excessive. It was further argued that the job security provisions of Article 24 of the Collective Agreement should have been activated to grant displacement rights in favour of the Grievor. In considering the merits of the instant Grievance, there is no doubt that Section 18(l) of the Crown Employees Collective Bargaining Act gives to the Employer certainexclusive management functions including discipline and dismissal. Section 18(2)(c) permits an employee to process a Grievance "that he has been disciplined or dismissed (emphasis added) . . ..from his employment without just cause." Section 19(3) of the Act gives to Arbitration Boards broad remedial authority to substitute a penalty for "discipline or dismissal" (emphasis added) where the Board determines that the disciplinary penalty "or dismissal" is excessive. Having considered the evidence and the arguments of the Parties carefully, this Board is of the opinion that we have jurisdiction pursuant to 19(3) of the Crown Employees Collective Bargaining Act to grant broad equitable relief. We find as a fact that the dismissal of the Grievor in the instant Grievance is excessive and must be set aside. Admittedly the Grievor's loss of his driver's licence as a result of off-duty conduct was an act of culpable behaviour on his part, recognizing as he did the consequences of his actions on his employment. However, temporary inability to perform a job does not lead to the conclusion that the employment relationship is severed. -6- As Arbitrator Beatty stated in Re Aro Canada Ltd. and International Association of Machinists, Lodge 1817 19 L.A.C. (Zd) 81 at p. 86 and repeated by the same Arbitrator in Thompson and the Ministry of Transportation and Communications, 29/76 at p. 5 of the Grievance Settlement Board Award: "It simply does not follow as a matter of logic or of equity to conclude that an employee's inability to perform all or part of the tasks assigned to one particular job classification renders her suitable for all employment with her employer." This Board is unable to accept the Union's argument that the Grievor's circumstances would in any way trigger the job security provisions of Article 24 of the Parties' Collective Agreement. Article 24.1 specifically refers to a lay-off directly attributable to shortage of work, shortage of funds, abolition of a position or other material change in organization. None of the circumstances specified in Article 24.1 apply to the facts of the instant Grievance and accordingly that Article is not applicable. This Board is of the opinion that dismissal of the Grievor was not an appropriate response by the Employer, bearing in mind the Grievor's 16 years of continuous service with the Ministry and his employment record of satisfactory performance and attendance. Also of importance is the fact that the Grievor has had no previous disciplinary record. I Accordingly, the Grievor shall be reinstated forthwith to employment with the Stratford Division of the Ministry, with no loss of seniority or service related benefits. From the time of his purported dismissal on January 11, 1983 he shall be treated as though he were on a leave of absence without pay. The Grievor -7- shall be entitled. to any job available within the District that he is able to perform subject of course to seniority rights of his fellow employees. Further, the Grievor shall be entitled to reinstatement to his previous position as a Lineman conditional upon the validation of his driver's licence on or before February 1, 1984. DATED at Brantford, Ontario, this 29th day of September, A.D., 1983. Vice Chairman E. A. McLean, Member 2: 1470 7: 3120 71 3010 I: 3420 7: 3422