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HomeMy WebLinkAbout1984-0264.Stevens.85-04-16IN THE MATTER OF AN ARBITRATION - Under - THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD Between OPSEU (J.D. Stevens) - and - The Crown in Right of Ontario (Ministry of Correctional Services) Grievor Employer Before E.B. Jolliffe, Q.C. Vice-Chairman I.J. Thomson Member M.F. O'Toole Member For the Grievor: B. Hanson Counsel Cavalluzzo, Hayes & Lennon Barristers & Solicitors For the Employer: J.A. Wallen Regional Personnel Administrator Ministry of Correctional Services Hearing October 19, 1984 - 2 - DECISION The grievor, Mr. J.D. Stevens, was employed as a CO2 with the Ministry of Correctional Services at the Metropolitan Toronto East Detention Centre. On November 27, 1983, he grieved against a disciplinary hearing at which misconduct had been alleged, described it as "harassment" and requested "a full written apology" from the Superintendent "and his management board." Subsequently, on December 21 Mr. Stevens also grieved that a letter of reprimand from Superintendent Peter Jackson dated November 30 was "unjust and unwarranted." As the same factsgave rise to the two grievances it was agreed by the Union and the Ministry during the course of the grievance procedure that the two should be treated as one grievance,and t,hat the settlement required be amended to read: "That this letter and all other references be removed from my file and I receive an apology." There is no real dispute about the facts. Th,e grievances arose because Mr. Stevens thought the Ministry had no right to require his attendance at the Ontario Police College on the night of October 30, 1983, prior to commencing the next morning a five-day "refresher course" at that institution. -3- The Ministry of Correctional Services and at least seven other Ministries or agencies had entered into arrangements with the Ministry of the Solicitor-General whereby probationers are given training in ,custodial work and senior employees take "refresher" courses at the Ontario Police College. For Correctional Officers the practice is to select several from each institution on a rotational basis. Prior notice-of the course was given to the grlevor and others early in September. On or about October 18, Mr. K.W. Leak, training officer at the M.T.E.D.C., issued so-called "joining instructions" which informed Mr. Stevens and three other officers that they -would be attending their refresher course in the week commencing October 31 and that they would haX/c> to register at the Police College, Aylmer, between 6 and 10 p.m. on Sunday, October 30. The four officers were to travel in not more than two cars, and Mr. Stevens was advised that he would be allowed four hours' pay.for travel and also one-half day recorded on Exhibit 12 as "lieu" time. for Mr. Stevens, Sunday, Octohcr 30, was according to him --- not a regular day off but a day on which he had been scheduled to work from 3 to 11 p.m. On or about October 20, Mr. Stevens spoke to Mr. Leak about the instructions and emphatically voiced his argument that the Ministry could not compel him to attend at Aylmer the.day .a - r--l, ---l~innrl th>t the Ministry, in . -4- negotiating for the use of the college faciLities, had been obliged to agree. that all trainees register the night before commencement 0E a course. To this Mr. Stevens replied that he had no intention of arriving on Sunday night and that he would file a grievance on his return from the course. Mr.,Stevens decided to take his own car to Aylmer on Monday morning and persuaded another officer, Mr. P. Medland, to accompany him as a passenger. It is common ground that they arrived at the College well before 8.30 a.m. On November 14, the griever addressed a so-called "Occurrence Report" to Superintendent Jackson explaining his position in writing, as follows: Sir: I was assigned to the five year refresher course being held at the Ontario Police College in Aylmer Ontario, for the Eollowing dates Monday &tober 3&t, 1983 to Friday, November 4th, 1983. On the 27 of October 1 received by mail, a information package on what was required for course. This packagealso indicated that we were to sign into O.P.C.on Sunday evening between 1800 hrs and 2100 hrs. ' DE to the fact that we are not being paid stand by time, I chose not to report until Monday October 31st, 1983 and was on time for the commencing of class at 0830 hrs. The "joining" package given the griever in October 1. .5 --:..c,,rl -zmnhle+ a1rthnrize.d bv the Ministry of the 1 - 5 - Solicitor General and issued by the Ontario Police College with the title: "Student Arrival Instructions". The Sol,lowinq advice appears on the tront cover. 'It3 REGISTER Unless otherwise notified,. attend at the Administration Area (51 the day prior to the carmencement of a course as follows: PROSATIONARY CONSTASLE COURSE: 1300 to 2200 Hours SENIORCOURSE SEMINARS & UTHERS: 1800 to 2200 Hours Testimony explaining the requirements of the Police College was given by Mr., Walter Koluk, the Ministry's Acting Chief Instructor. He said the College has accomodation for 600 men and women, but the average attendance is about 400. GE these the Ministry of Correctional Services would normally contribute between 35 and 50. If 400 were to attend a course the following week, Mr. Koluk said, it was necessary to process all oE them in advance: they registered, were assiqned rooms and the appropriate class- room as well as parking space: they were issued keys and identification tags: the kitchen was notified so that there would be an accurate count'of the number to be fed at meals the next day, including breakfast. - 6 - For the purpose of all the transactions described above, an O.P.P. qEficer is on duty at the reception desk, but only on Sunday. Monday morning there is a "receptionist" available. For Mr. Stevens and Mr. Medland the result was that they did not get registered until some time Monday morning. Later in the day Mr. Stevens moved his car to an authorized parking space. Mr. Koluk has some responsibility for preparing the program to be followed by Correctional officers, but much of the training is given by specialists on the college staff. Normally Mr. Koluk attends each course when it begins. Any violation of the rules is reported by the Chief Instructor. More than 800 Correctional Officers had taken courses in the past year. Of these, Mr. Koluk said, only 10 were late in arriving. They come from different parts of the province but --- according to Mr. Stevens --- it took him only two hours to drive from the north- eastern area of Metropolitan Toronto to Aylmer. Nevertheless he was credited with four hours' travel time. He has conceded that he suffered no reduction in pay; in efEect he received 12 hours' pay in respect OE Monday, October 31, and also had a day off on Sunday. Mr. Leak testified that he tries to assign officers to refresher courses "by seniority," with certain exceptions. He said Mr. Stevens had been assigned on a previous occasion but - - 7 - "begged off." On the other hand, he added, the Union had complained that not enough officers were getting the course after five years of service. Mr. Stevens had served at the M.T.E.D.C. since 1977. The griever testified he became a CO2 in 1978 and was a CO3 from 1990 to 1982, when he voluntarily "stepped down" to be a CO2 again. In 1980 he had ranked second in a contest to recognize the "officer of the year." His E.P.A.'s were good and he had no disciplinary record. He emphasized that his protest to Mr. Leak was "a discussion, not a confrontation." Mr. Leak told him the policy was not written by him; he simply had to enforce it. As instructed, Mr. Stevens reported to Deputy Superintendent.Lochead for a change in his schedule. He said "I chose to bank my hours instead of working. We are allowed to bank hours." Thus, he reasoned, he was not on duty at any time Sunday and could not be ordered what to do during time off. He admitted he was Eully aware that the "directive" required him to register on Sunday night. He told Mr. Lochead of his plan to travel Monday morning and "he said nothing but gave me four hours’ travel time." When he arrived in his classroom there was amemo from Mr.Koluk asking why he had registered late. - -a - Questioned by the Board, Mr. Stevens said he rose early on Monday, left his home about 5.10 a.m., picked up Mr. Medland and departed for Aylmer about 5.20, arriving two hours later. The distance, he estimated, was about 200 kilometres. He empha- sized that if he had'reached the College Sunday night, he "would not have been paid for being ~there." There is no doubt the grievor was admonished at his meeting with the Superintendent on November 25. .He did not speak for himself at that time, but was defended by his steward, Mr. Martin Sarra. His first grievance arose from that meeting. His second followed a letter of reprimand from Superintendent Jackson. Mr. Medland had also been summoned to a meeting with the Superintendent and Mr. Leak. Mr. Jackson testified that "Medland was counselled in writing by me." There was, however, no reprimand in his case. Accordinq to Mr. Jackson: "He said he had misunderstood the instructions, he was very apologetic and said he would, obey in future." On the other hand, Mr. Stevens did not plead misunderstanding, but made clear that he disagreed with the policy..... "He knew what he was supposed to do. Hence the difference." The Superintendent was not aware of anyone else failinq to reqister on time. He felt that if Mr. Stevens disagreed with the rule, his duty was to "obey now and grieve later." - 9 - Throughout the hearing of this case it seems to have been overlooked that Section 18(l) of the Crown Employees Collective Bargaining Act expressly reserves to the employer the exclusive function of determining assignments and also "training anddevelopment." We have nodoubt it was well understood by the Union and by Mr. Stevens that as a term or condition of their employment correctional officers would be required from time to time to take elementary or advanced courses at the Police College or elsewhere, being a part of their "training and development." Obviously, travel would be necessary on such occasions. The employer allowed four hours' travel time to reach Aylmer, not an unrea,sonable concession, particularly when the distance, according to Mr. Stevens, could be driven in only two hours. In our view it was also entirely reasonable to require registration on Sunday evening. The College could hardly be expected to process several hundred registrations immediately prior to 8.30 a.m. Monday. If it w'as necessary for registrants to be in residence until the course concluded the following Friday, it was no great hardship to be in residence after registration on Sunday evening. Indeed, it is unlikely any employee could take full advantageofthe course on the first day if that day began before 5 a.m., followed by a 20D-kilometre drive across southwestern Ontario. In view of the fact that the grievor had most of Sunday off, and further in view of the fact that he was allowed four hours' pay for two hours' driving, it is - 10 - rather far-fetched for the grievor to argue'that.he was not being paid for sacrificing his Sunday evening. As for being obliqed to stay in residence at the College --- at the employer's expense --- it was a necessary concomitant of a necessary training .course. In summary, we do not think the grievor had any valid reason --- under the Act or the collective agreement --- for disobeying clear instructions to be at the Police College and register between 6 p.m. and 10 p.m. on Sunday, October 30. The refusal to go on Sunday amounted to a premeditated act of insubordination and it was entirely wrong for the grievor to argue that he would not be compensated for time spent on duty Sunday evening. In our view the disciplinary interview of November 25 and the written reprimand of November 30 were justified and appropriate. For the reasons stated above the grievance fails and must be dismissed. Dated this 16th day of April , 1985. E.B. Jolliffe EDJ:sol