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HomeMy WebLinkAbout1987-2287.Croft.88-07-04E?.4PL0&0EL4 CO”RONNE DE L’ONTARIO CfJMMISSION DE SETTLEMENT REGLEMENT DES GRIEFS IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT THE GRIEVANCE SETTLEMENT BOARU Between: OPSEU (Croft) Grievor and The Crown in Right of Ontario (Ministry of the Solicitor General) Employer Before: R.J. Roberts G. Nabi P. Camp Vice-Chairman Member Member For the Grievor: R.M. Nelson COUl-lS~l Gowling & Henderson For the Employer: C. White Counsel Hicks Morley Hamilton Stewart Storie Hearing Date: May 5, L988 2287187 Decision The grievance in this matter involves Article 32.1 (c) of the Collective Agreement, which reads as follows: ARTICLE 32 - LEAVE - JURY DUTY 32.1 Where an employee is absent by reason of a summons to serve as a juror or a subpoena as a witness, the employee may. at his option: . . . (c) treat the absence as leave with pay and pay to the Treasurer of Ontario any fee he has received as a juror or as a witness. The grievor claimed that he was absent from work "by reason of a summons" when he missed his shift on October 2, 1987. The Ministry concluded that this was not the case and refused to pay the grievor for the day. The grievor grieved this refusal. For reasons which follow, the grievance is dismissed. The operative facts may be briefly stated. At the time of the events leading up to the grievance, the grievor was a Security Officer 2 stationed at 8 York St., Toronto, a government building which housed, inter alia, the Antirackets and Intelligence Branch of the Ontario Provincial Police. The grievor commuted to this work place from his residence in Whitby, which; he stated, was 60 to 70 kms. away. At all relevant times, the grievor was working the afternoon shift, from 3:00 to 11:OO p.m. ~.~~ .,....-.... “._ .._........._. ~i,_.~~~~~..-.~-~.,.~... .,,~. ..,,.. . ~..~ . ..^.. ~. /_ ~..^ . . ._............ ..,., ~~. . . ~~,~.~ .~~~~_. -.. ~.~. ..~... ~.~ ~~. ~~.~ 2 On the afternoon of Thursday, October 1, 1987, the grievor received a telephone call in which he was notified that he was being subpoenaed to appear as a witness in an arbitration proceeding before the Grievance Settlement Board on Friday, October 2. He then called his Supervisor, Mr. P. S. Wood, who worked in another building, and advised him that because of the subpoena be would not be coming into work on October 2. Mr. Wood refused to agree that the grievor should be absent because of the subpoena. He took the position that because the subpoena was for a Grievance Settlement Board proceeding and not for a court case, it was "unenforceable". He advised the grievor that he expected to see him into work on the following day. The grievor was perplexed. He called Mr. Ruby, the lawyer for the Union to inquire whether Mr. Wood's position was correct. Mr. Ruby assured the grievor that Mr. Wood was wrong and that he would speak to Ms. Leslie McIntosh, the Lawyer for the Ministry and straighten matters out. Having received this assurance from Mr. Ruby, the grievor attempted to call Mr. Wood back but was unable to reach him because he had left the building where he was located. When he completed his shift that night, the grievor made preparations to appear at the Grievance Settlement Board as a witness on the following day. He testified that he made stops to . 3 get gas for his car and money from the instant teller at his bank. He did not arrive at his home until 1:00 a.m. This meant that he did not get much sleep, because he had to get up at 5:30 a.m. in order to meet the lawyer for the Union at 8:30 a.m. on May 2. (It seems that although the summons directed the grievor to appear at the Grievance Settlement Board at 10:00 a.m., Mr. Ruby requested the grievor to appear early so that he could interview him prior to commencement of proceedings.) During this early morning meeting, which took place at a restaurant in the same building as the office of the Grievance Settlement Board, Mr. Ruby told the grievor that he was unable to reach Leslie McIntosh on the previous day. At about that point, Ms. McIntosh passed by their table, and when Mr. Ruby informed her of the grievor's dilemma, ske told him that she would straighten it out for him. As things turned out, the grievor's testimony was unnecessary. By 12:30 p.m., the parties had negotiated a settlement. After the Minutes of Settlement had been signed, Ms. McIntosh approached the grievor and told him that there was a problem and that he could not have the day off. The grievor was expected to show up for his shift at 3:00 p.m. This news resulted in some discussion in which certain allegations were made that this requirement was retributive. Nevertheless, at the 4 end of the matter it was made clear to the grievor that he was expected to report for work. Despite this instruction, the grievor did not report for work. He stated that he had not had much sleep, and was physical.ly,and mentally tired. He said that he was an active participant in the settlement negotiations and he found this stressful. Moreover, because he thought be would be involved in the hearing for the whole day , he had left his uniform at home in Whitby. The grievor stated that he did not think that he was physically able to go to work on that day. He did not, however, telephone his Supervisor and advise him of his decision. He agreed on cross-examination that there was no doubt that management expected him to report for work at 3:00 p.m. When the grievor returned to work in the following week, he was not disciplined for being absent without leave on the preceding Friday. After an investigation was completed, however, he was notified by Staff Sergeant Arbour that he was not being paid for the day in question. The grievor disputed this conclusion, citing several incidents that he said he knew of where other officers were paid for the day despite the fact that the proceeding ended before the scheduled commencement of their shifts. According to the grievor, Sergeant Arbour acknowledged that there was "abuse" in that way and it had to stop. The grievor then indicated that if his pay was docked for the day in 5 question, he would file a grievance. On November 9, he carried through this intent and filed the grievance leading to the present proceeding. At the outset of the hearing, counsel for the Ministry directed our attention to the award of Vice-Chairman Swan in OPSEU (Union Grievance) and the Crown in Right of Ontario (Ministry of Citizenship and Culture) (19871, G.S.B. #0332/85. Counsel noted that in that case, it was decided that Article 32.1 of the Collective Agreement applied to "all of the statutory forms of summons for a witness not only before the courts, but also before all tribunals which have been given by statute the power to compel witnesses to attend and testify ", including the Grievance Settlement Board. Id. at p. 18. Counsel indicated that for purposes of this grievance, the Ministry accepted this ruling. The only issue, then, became whether the grievor was absent "by reason of a summons", within the meaning of Article 32:1, when he missed his shift on Friday, May 2, 1987. We have decided that this question should be resolved in the negative. The grievor was snot absent from his shift by reason of the summons that he received to serve as a witness before the Grievance Settlement Board. At the very least, the "by reason of" language of Article 32:l requires a causal link to be established between the summons and the absence. And it would 6 stretch matters considerably to find that such a causal link existed in the present case. We accept that the grievor may have been tired and certainly did not want to report for work when the settlement was reached at 12:30 p.m. But being tired falls far short of being incapable of performing your duties. It would have required a much more substantial showing of inability to induce this Board to forge the necessary link of causation in the circumstances of the present case. Moreover, there was nothing in this case from which an estoppel might have arisen against the Ministry. The grievor knew that he was expected to report for work at the commencement of his shift. He was told after the settlement had been reached that he was expected to do so. We discount the absence of his uniform. First of all, it was not at the direction of the Ministry that the grievor left his uniform at home. Nor, apparently, was it at the direction of counsel for the Union. Moreover, because the settlement was reached at 12:30 p.m. and his shift did not commence until 3:00 p.m., the grievor would have had ample time to return to Whitby, put on his uniform, and report for work at 3:00 p.m. Finally, there was insufficient evidence of prior practice to bind the Ministry, either as a matter of construction of 7 estoppel. to grant the grievor leave with pay despite the fact that the hearing ended well before the scheduled start of his shift. The allegations of prior practice that the grievor made in his direct testimony were hearsay in nature. They were not substantiated by any other evidence and so could not be acted upon as matters of fact. The grievance is dismissed. DATED at London, Ontario, this 4th day of July, 1988. 66 k-bJs G. Nabi, Member