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HomeMy WebLinkAbout1984-0492.Kakekaspan.dateunknown492184 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT ,' Before r., THE GRIEVANCE SETTLEMENT BOARD Between: OPSEU (Moses Kakekaspan) Before: For the Grievor: For the Employer: Hearing: Location: - and - Grievor The Crown in Right of Ontario (Ministry of Transportation and Communications) Employer R. J. Roberts ViceChairman E. McVey Member L. 0. Foreman Member P. Sheppard Grievance Officer Ontario Public Service Employees Union L. McIntosh Counsel Crown ,Law Office Civil Ministry of the Attorney General December 11, 1984 " Thunder Bay, Ontario . . AWARD ----_ 2. This is~a unique case, involving circumstances which occurred in a remote settlement in Northern Ontario. The circum- stances ,led to the discharge of the grievo~r. For reasons.which follo .a the grievor was, reinstated as of the date,of the hearing in this matter. The severity of the penalty is hereby reduced to that of. a suspepsion. At the outset of the hearing, . . the~parties submitted an Agreed Statement of Facts. This statement, minus the exhibits read as follows: AGREED STATEMENT OF FACTS 1. The Grievor was a Highway Equipment Operator 3 (Atypical) employed with Fairport Operations in the Nor~+h- western Region of the Ministry of Transportation and Communications. His position title was Assista,nt Airport Foreman. 2. . The Griever's duties included assisting the Airfield Foreman in the maintenance of the airfield, 3. by operating equipment for clearing and grading the airfield and the access road. 3. The airfield is a new one, constructed a, _ few miles to the west of an old ai'rfield, which in turn was a few miles to the west of the Village of Fort '~' Severn. There is an access road connecting the Village to the old airfield and the old airfield to the new one. The airfields themselves are Crown lands. The lands surrounding the airfields, including the access road and the Village are within the Fort Severn Indian Reserve. 4. The Griever was therefore not required to have a driver's licence in order to perform his duties. ' 5. The Grieyor was dismissed from employment effective May 25, 1984, because on Saturday, August 13, 1983, he "operated a Ministry-owned vehicle while under the influence of alcohol and-.-lost control of the vehicle and went off the road". The Grievor was informed of his dismissal for cause in a'letter dated May 14, . . 1984 from the Deputy Minister, ;hichietter'fs-.attached heret-. 6. The Deputy Minister's letter also cited "the Ministry's long-standing policy with respect to the aueration &~BYinistrv vehicle while under the 4. Min .i stry's responsibility for the safety of the travelling 1 public and as the,licencfng authority for the Province", as an additional cause for d,ismissal of the Grievor. 7.. Th'e Grievor had in fact on August 13, 1983, operated a Ministry-ow&.vehicle wh,ile under the influence of alcohol. The vehifAe,had gone off the road. *_ s. The Grievor pleaded guilty to and was convicted of the offence of impaired driving on September 28, 1983. He was fined $100.00 plus costs of $3.00 "or 15 days". .~ There was no driver'; licence suspension imposed. . . , . 9. The incident did not occur during working hours. 10. There were no other vehicles involved in the incident. There were no injuries. There was no damage to the Ministry-owned vehicle. 11. The Grievor had been employed with the Ministry since March of ~1973. He had no prior disciplinary record and was.a good worker. 12.' In 1978, the Grievor signed a Form entitled 5. "Because of the special responsibilities of the Ministry of Transportation and Communications in the administration of vehicle operator licensing and the need for employees of this ( Ministry to set a good example in the area of safe and prudent vehicle operation, any employee in charge of or operating Ministry equipment will be subject to instant dismissal .. if there is any indication that he has been consuming alcoholic beverages." ,. The Grievor has read since that time, Ministry directives reiterating that policy. A similar statement, which is contained in the Handbook for Equipment Operators, had been brought to the'Grievor's attention. - '0 13. The Grievor filed a Grievance Form stating that he had been "unjustly dismissed" and requesting that he be "reinstated... effective May 25, 1984 with no loss of pay and no loss of credits". .#s 6. The only witness to testify at the hearing was the grievor. According to his testimony, the events leading to his dismissal took place in Fort Severn, Ontario. This is a remote settlement of 300 people which,generally, can only be reached by air. Within Fort Severn there is a road which is three miles long., It is a one-way road, .. 14 feet wide. There are no roads leading outside the community. c. The community itself is ldcated within an Indian Reservation. This is a dry Reservation in the sense that alcoholic beverages are not allowed. I I The Ministry is charged with the responsibility to maintain the road and the runways of the airport., For this purpose, the Minist maintains in Fort Severn a number of vehicles, including bulldozers, front-end loaders, gravel trucks , a three quarter ton pickup, and a grader.. Two persons are employed by the Ministry to operate these vehicles. In 1973, the grievor was hired as one of these operators. At the time, the grievor did not possess a driver's licence. In fact, ,it seemed evident from the grievors's testimony that he did not possess any experience at all in operating a motor vehicle. Prior to becoming an employee of the Ministry, he had been a trapper in a place called Trapline, which was 90 miles from Fort Severn. The grievor explained that he taught himself to drive the various vehicles of the Ministry by reading instruction manuals and trial- and-error. This, perhaps, was not as dangerous as it might otherwise i 7. have been, because in all of Fort Severn, there were only six other vehicles besides the Ministry vehicles. The grievor testified that he knew that no alcoholic bevera< were allowed in Fort Severn. Nevertheless, apparently following h - a not uncommon practice within this community, the grievor occasionally ordered for his own consumption, a bottle of spirits. Generally, such orders were flown in to Fort Severn as part of the cargo of chartered planes. On Saturday, August 13, 1983, a chartered plane carrying inter alia, --- a'bottle .of spirits ordered by the grievor, flew into the airport. On that day, the grievor was on duty from 8:OO a.m. to 6:30 p.m. Thereafter, the griever apparently collected his bottle and brought it to his home. After dinner, he poured himself two fair-sized shots of vodka from this bottle,mixed this with tomat juice, and consumed it. At about this time, Mr. J. Stoney, the Manager of a nearby hunting camp, came to the griever's home and asked him for help. Mr. Stoney owned a jeep, which was one of the other six vehicles in the community, and this jeep apparently had gone off the road. He requested the grievor to take the Ministry truck that the grievor had driven home and use it to pull the jeep out of its predicament. The grievor testified that he was reluctant to comply with this request. He told Mr. Stoney that under regulations issued by I ~uLG-+rrr ha wa= nntauuoosed to drive a Ministry vehicle after I 0. having had a drink. Nevertheless, Mr. Stoney apparently continued urging the grievor to help him. He.even suggested.that the local Constable had. sent Mr. StOney to the grievor for help and had .' indicated that he would not charge the grievor for drinking on the reservation. Finally, the griever decided to comply. ', I .._ '. The grievor's testimony left little doubt that at this time, Mr. Stoney was inebriated, and that it likely was because he Wi in this condition that'Mr. Stoney drove his jeep-off the roadway in first place. As he,proceed& to drive toward'the spot where the jeep had run off the road, the grievor testified, he became more and more concerned ab'out Mr. Stoney's condition. He decided, he said, that 'the only way in which',to 'avoid having Mr. Stoney resume driving in that condition was to disable the truck. It was. to accomplish, this, the grievor.testifiedi that, he parked the truck on the shoulder of the road with one wheel leaning off the road. This effectively made it impossible to move the vehicle. He then told Mr. Stoney that they were stuck. They got out of the vehicle and walked backed to the gri'evor's home. On the following Monday, the grievor.and his Supervisor took another truck to pull the first one,back onto the roadway. Apparently, the Constable was there when the<truck was pulled out: however, the Constable did not indicate that the,re was any problem. Meanwhile, the grievor explained to his Supervisor how the truck. had gotten stuck and his Supervisor took some pictures, none of 9 . which was presented at the hearing. A week later, the Provincial Police came and gave the griever a ticket for impaired driving and drinking on the Reserve. In September, the grievor pleaded guilty to the impaired driving charge. At the hearing, however, the grievor explained that at this time he did not know what "impaired driving" meant. He stated that he had decided to plead guilty because he had been drinking. The grievor denied that at the time he drove the truck his ability was impaired. He said that he belived that he was in good condition when he drove, and that he felt normal just like on any other day when he.was driving. At the hearing, the Ministry took the position that dismiss was the only possible disciplinary response to the griever's action for three reasons. These were: (1) the grievor endangered himself and othess;(2) the nature of the Ministry's business, i.e., the Ministry is the licencing authority in Ontario and is responsible for the safety of the travelling public; and (3) the unequivocal nature of the Ministry's instructions, which, to the griever's knowledge, forbade hi had even one drink. of the Ministry, and second reason., i.e., m to drive a Ministry vehicle after having It was further submitted that the main concern the one that dictated the dismissal, was the ! I the responsibility of the Ministry for the safety of the travelling public and its function as the licencing authority for travel upon the highways. It was submitted that in light of .lO. drinking, and must react strongly to'such incidents. It might well be that the foregoing argument may be possessed of considerable force ,in the context of the usual run of responsibilities of the Ministry. .It'must be acknowledged, -0 however, that~the circumstances which gave rise to this case are r..., not usual. In fact, they are unique. These circumstances involved behaviour in a remote northern community with only three,miles of road and a total of six vehicles, other than those be-longing to the Ministry. The Ministry already had treated.this community as a special case, in,that no drivers' licences were required to operate vehicles therein. Moreover, it i did not appear to be of concern to the Ministry that its own employee should learn to drive Ministry vehicles by trial-and-error at its airport and upon this remote stretch '. of road., - In light of these acknowledged special circumstances, it would appear that the Ministry's concern for its own status as the licencing authority and its responsibility for the safety~ of the travelling public could not be applied in its decision-making - with the same degree of vigour as might legitimately shave been the case, in a more usual setting. The special~circumstances should have been taken into account, and it appears that if,they had been, the grievor would not have been dismissed. It is for this reason that on the day of.the hearing, the Board, upon due consideration of the matter, ordered the grievor to be reinstated forthwith. -. .-. NORTHERN LABOUR ARBITRATION SERVICES (705) 5602372 84 CHERRYWOOD CRESCENT SUDBURY.ONTARlD P3B 328 ELMER McVE GRIEVANCE OF MOSES KAKEKASPAN Adendum from Elmer McVey While I conur with the re-instatement of the Grievor and am prepared to accept a short suspension ,~I am not prepared nor can I accept the fact call for the imposition of a substantial discipilinary penalty. __ The Grievor was a victim of a system of which he knew little, a judical . system that showed little if any compassion or understanding and a court that did not afford him the opportunity to understand and probably did not explain the:procedures and the seriousness of the offence. The Grievor was candid and honest with the Board. He admitted he had two shots of vodka, told US he was not intoxicated and did.not think he was impaired. He also pleaded guilty in the "court" on September 28, 1983. not having understood the meaning of the word impaired. It should qo without saying that all employees should be treated fairly in all areas in the jurisdiction of the Ministry. In this instance 1 believe the Grievor was treated unfairly, when you take into consideration the results of other similar cases (impaired driving) before this Board. In other cases the employees are employed in areas where there are miles of two and four Jane highways where thousands of vehicles and many thousands of people are travellinq. In those cases, tests were taken, arrests made by O.P.P. at the scene and court appearances (by knowledqable culprits), convictions based on evidence of the O.P.P. and the tests, suspensfon of licences from three to twelve months. In this case, no arrest, no tests, a court appearance by a person t/h? has little if any understanding - no suspension of licence (none needed for three miles of single lane road 500 miles north of Thunder Bay) Research - Arbitrations - Negotiations -sm 6s . -2- Page 10. 2nd sontance of the 1st paragraph and particularly the 4th sentance: "lt..must be acknowledged, however, that the tiit+umstances which gave rise to this tase are not usual. In fact, the are 'uhiquk. Tl\ese circumstanctis involved hehaviour in' a r&ote northern collnllunity with only three miles of road and a total of six vehicles, other than those belonging to the Ministry. The Ministry already had treated this collnmniity as' a special case, in that no drivers' licences were ., required.to operate vehicles therein. Moreover, it did not appear to be of concern to the Ministry that its own employee should learn ,_ to drive Ministry vehicles by trial-and-error'at its airport and upon this remote stretch of road," The second paragraph expresses the Boards opinion about~these special circumstances. "In.liqht of these acknowledged special circumstances, it would appear that the Ministry's concern for its own status as the licencing authority and its responsibility for the safety of the travellinq public could not be applied in its decision-making with the same degree of vigour as might legitimately have been the case ina more usual setting. The special circumstances should have been taken into account, and it appears that if they had been, the Grievor would not have been dismissed. It is for this reason that on the,day of the ,hearinq, the Board, upon due consid- eration of the matter, ordered the Grieior to be reinstated forthwith." Bearing in mind the'lenqth of time from the "offence" to the date in court to the date of the hearing to the date of the dismissal-from August 13,. 1983 to May 14, 1984 I cannot with clear conScience accept a suspension longer than 15 days. I would therefore'reinstate the Grievol;, >ffective May 14. 1984 with full seniority and benefits and substw% fifteen day suspension without pay but with benefits and seniority accumulating. . -3- 1 would also suggest to the union that they investigate the possibilities of a review of the court dedsion or at least an Investigation of the court procedure used at these remote outposts.