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HomeMy WebLinkAbout1985-0506.Henderson.86-05-09506/85 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGiiINING ACT Before THE GRIEVANCE SETTLEMENT BOARD Between: - and - The Crown in Right of Ontario (Ministry of Correctional Services) Before_: A. L. Verity, Q.C. Vice-Chairman S. Dunkley Member G. Milley Member For the Grievor: M. Cornish Couns&l Cornish & Associates Barristers & Solicitors For the 'Employer: D. Dalgleish Regional Personnel Administrator Ministry of Correctional Services Hearing: October 3, 1985 Grievor Empioyer DECISION In a Grievance dated April 10, 1985, Peter Henderson alleged dismissal without just cause. The remedy requested was reinstatement with compensation for lost wages. . . The Grievor was a Correct ional Officer 1 emp loyed at the Ottawa-Carleton Detention Centre, a maximum security insti- tution. At all relevant times, the Grievor was a contract . employee, commonly referred to as a “casual” employee. In that capacity, the Grievor was a member of the "unclassified ser- vice" in the sense of being a "public servant” under the Public .Service Act, b~utanot a “civil servant”. Under the Crown Employees Collective Bargaining Act, an employee is defined in Section.1 to include both classified and unclassified employees of the Ontario Government. As.a casual employee, the Grievor's rights are specified'in Article 3 of the Collective .Agreement. In’ particular, Article 3.11 reads as follows: "Employment may be terminated by the Employer at any time within one (1~) week’s notice, or pay in lieu thereof." There was a paucity of evidence presented at the Hearing. The Employer called two rtitnesses and introduced -3- several exhib its. The Union chose to call no evidence. The Grievor was appointed to the unclassified service in 3uly of 1984. In his application for employment, the Grievor advised the Employer that he had been convicted of two offences under the Criminal Code of Canada in 1977 - namely 5.235(2) “failure to provide sample of breath, and S:234 “care ‘. and control while ability impaired”. The Employer did not consider these convictions as a bar to employment and accordingly the Grievor was appointed to the unclassified \ staff. . On August 2, 1984, the Grievor executed an employment contract effective 3uly:31, 1984 with an expiry date of March 31, 1985. Under “Other Terms and Cohditions”, the contract provided: - Normal hours’of work not to exceed 24 pier week - Services may be terminated on one (1) week’s notice by either party Subsequently, the Grievor executed a second employment contract effective 3anuary 16, 1985 with an expiry date of March 31, 1985. The purpose of the second contract was to extend the Grievor’s h,ours of work “up to 40 per week”. - 4 - I Other ,than the revised work week, and an increase in the basic salary rate, the terms and conditions w.ere identical to the initial contract. The Grievor experienced dertain attendance problems during October of 1984. Ottawa Centre Probation Office Area Manager M. A. Sial, was Deputy Superintendent of the Ottawa- Carleton Detention Centre In October and November of 1984. Mr . Sial testified that on October 29, 1984, he and Senipr Assistant Superintendent Thornton (since deceased) held a coun- selling session with the Grievor. Mr. Sial stated that the Grievor was "quite concerned” that he be .given more shifts in the future. The Grievor was advised that an important criteria for the po.sition was availability for assigned shifts, and that the Grievor had failed to report for assigned duties on three or four occasions. The Grievor spoke of transportation diffi- culties, domestic difficulties and drinking problems. M r . Sial testified that it was agreed that the Grievor beg given a "fresh start” on the strength of his assurance that his problems were under control. As Mr. Sial stated "we looked at it as a fresh I start... we took him at his word". There is no evidence that the Grievor experienced any employment difficulties between October 1984 and March 1985. On March 24, 1~985, the Grievor allegedly did not report for work for an assigned shift. 'Ottawa-Carleton Deten- tion Supe,rintendent 3ohn Sayasuriya testified that it was brought to his attention that the Grievor, had telephoned the Institut'ion during the early hours of March 24, 1985 advising that he had been charged. with impaired driving and would be. unable to repoit for work. Superintendent Jayasuriya person- ally telephoned the Glochester Police Station and verified that charges were pending against the Grievor as stated. On Mar.ch 26, 1985, Superintendent Jayasuriya.wrote the Grievor as follows: "This is to inform you. that under ,the pro- vision of the Collective Acjreeme,nt, Article .3.11, you are given one (1) weeks notice of cessation' of your Casual Contract. This notice is to be effective April Ist, 1985. Please,liaise with the Office Manager re- garding the necessary clearance documents, etc., and make arrangements to return clothing issue, standing orders. and the like." In his testimony, the Superi ntendent acknowledged that the March incident had some beari ng on his decision to terminate the Grievor's employment. In the Superintendent's own words: "I felt I could not rely on the Grievor as .a Correctiqnal Officer.:.His integrity was questioned by the fact of the impaired driving charge." The Superintendent testified that he.reviewed the Grievor’s record.following the March 1985 impaired driving charge, noted the 1977 previous conviction for impaired driving, and the October 1984 counselling session and concluded: "In my judgment, the Grievor had not improved," Superintendent Sayasuriya acknowledged that he did not speak personally with the Grievor foilowing the March impaired driving charge. Mr. Dalgleish attempted to introduce, during the Superintendent's testimony, four occurrence reports contained in the Grievor’s personnel file. Ms. Cor’nish objected to the admissibility of that evidence in the absence of the authors of the reports and maintained that the documents asp introduced were hearsay, with no opportunity for cross-examination as to accuracy. The Board agreed with Ms. Cornish's contention but gave the Employer full'opportunity to introduce the occurrence reports at a later date to avoid the allegation of hear.say. - 7 - i However, the Employer abandoned any further attempt to introduce the occurrence reports. There is no evidence that the Grievor's contract was in the process of being renewed at the time of his termina- tion. However, there was ev'idence that other empioyees had their contracts renewed in early March of 1985. Superintendent Dayasuriya testified that he reviewed each contra~ct employee's file prior to signing a renewal contract. .He did not review the Grievor's personnel file until after the impaired driving xharge on March 24. On being informed of the impaired driving charge, Superintendent Sayasuriya did review the Grievor's personnel file and as a result, the letter of March 26 was prepared. The Employer contended that the Grievor's employment was' terminated within the meaning of Article 3.11 in that.he Was "released" .for reasons of unsuitability as a Correctional Officer. Mr; Dalgleish alleged that the impaired driving charge of March 24 substantiated the fact that the Grievor had not resolved his personal problems. The Union'argued that the Grievor's termination of employment was a dismissal under the guise of a release. Ms. -C.ornish alleged that the Grievor was dismissed for suspected - 8 - alcoholism and that there was no direct ‘ev.idence of alcoholism in either October, 1984 or in March, 1985. She contended that the Employer’s failure to call the arresting Police Constable as a witness resulted in the fact that there was no direct evidence that the Grievor had been drinking or was under the influence of alcohol, when arrested. In’addition, she argued~ that but for the impaired driving charge in March, 1985, in all probability the Grievor’s contract of employment would have been renewed. The Union contended that in view of the dismis- sal, the Grievor should be reinstated to employment, or alter- natively compensated for the lost opportunity to have the employment contract renewed. Th‘e comb’ined-effect of Articles~ 3.14 and 27.6.2 of the Collective Agreement, and Section 18(2)(c) of the Crown Employees Collective Bargaining Act, give? to ,unclassifed employees the right to grieve a “dismissal” and failing settlement, the right to arbitrate any such dispute pursuant to Section 18(2)(c) and 19(i) of the Crown Employees Collective Bargaining Act. There is no corresponding right provided for unclassified employees to grieve a “release”. In such matters, the Board has the obligation to characterize,the evidence to satisfy itself whether there is jurisdiction to determine the matter. On the evidence adduced, in spite of the parties' characterizations of.the facts, the Board is not satisfied that lose either position has merit. In our opinion, the facts disc neither a release nor a dismissal. . Superintendent Sayasuriya's letter of March 26, 1985' makes no reference to a release pursuant to the Public Service Act. Rather, it purports to be a notice of- "cessation" of a term contract, under the authority of Article 3.11, such notice "to be effective April 1, 1985". In our opinion, this letter achieves no other purpose than to inform the Grievor by way of notice that his term contract, which was to. expire on March 31; '1985, would not be renewed. The .evidence is clear’that although other contract employees had renewal contracts prepared in early March,, 1985, no such renewal contract was prepared for the' Grievor’s signature. In sum, the-re is no evidence that the contract was in the process of being renewed. There is no provision in the Collective Agreement, or in the Public Service Act, or the Crown Employees Cbllective Bargaining Act that compels an Employer to'renew a term contract of employment. On the contrary, Section 9 of the Public Service Act makes it clear that the employment of a public servant expires at the expiration of a term contract. - lo- In the instant matter, the Employer cquld have achieved the same result had it taken no action whatsoever, and simply allowed the contract to expire. In the instant Grievance, there can be no employment status in the absence of a contract of employment. In the result, this Grievance is dismissed. DATED atBrantford, Ontario, this 9thday of Nay, A.D., 1986. L/p;---- - 7 R. L. Verity, Q.C. - Vice-Chairman . 2: 1200 3:4310