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HomeMy WebLinkAbout1987-2306.Collard.89-05-16ONTAR, EMPLOY&SDE LA COURONNE CROWN EMPLOYEES DE “ONTARIO GRIEVANCE C$lMMISSION DE i ;ETTL;MENT REGLEMENT DES GRIEFS IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEPIENT BOARD Between: OPSEU (Collard) - and - The Crown in Right of Ontarlo (Ministry of Correctional Services) Grievor Employer Before: APPEARING FOR THE GRIEVOR: APPEARING FOR THE EMPLOYER: Hearlnq: J. Forbes-Roberts Vice-Chairperson I. Freedman Member D. Andersen Member AlicR Ryder Counsel Gowling & Henderson Barristers and Solicitors Greg F.;. Lee Seni6r Staff Relat<6ne Officer Staff Relations Branch Ministry 6: Carrectlcma: Services May 13, 19aa -2- . .e _ -: DECISION i The gr levor , MS. L. Collard, 1s employed as a Correctional Officer II (“C.0. II”) at the Toronto West Detention Centre. Ms. Collard successfully completed her probationary period on April 28th, 1901 and vas duly assigned to the full-time staff. On October 14th-15th, 1987 the grievor vas performing her dutlea as scheduled on the 23:00-07:OO shift. Early in the morning of October 15th she vas relieved of her duties for the remainder of the shift for allegedly exhibiting slgns~ of impairment due to the consumption of alcohol. She vas subsequently given a tvo (2) day suspension for this alleged offence, and it 1s that suspension vhlch is before this Board. The 0.M.15 or Ranking Shift Supervisor on the night in question vas Mr. Peter Northcott. Each shift begins vlth muster which consists of shift change over and a roll call of on coming staff. While Mr. Northcott noted that the grievor vas standing in the hall as opposed to actually being in the muster room she vas noted as being duly present. Follovlng muster the grievor and her partner Ms. K. Keeso proceeded to their assigned vork station on the sixth floorln the all female area of the Institution. There they perform clock punch8 and over the course of their shift together conduct fifteen (15) rounds of the cells. These rounds are to ensure fire and security measures are being folloved, the safety of the lnmates, and to perform head counts. According to both his direct evidence and his vritten report to Superintendant Phllllpson (exhibit 5) Mr. Northcott arrived on the sixth floor as part of a routine check at approximately 01:50 a.m.. He commenced rounds vith the grievor, leaving Ms. Keeso in the corridor. Mr. Northcott testlfled that the grievor’s speech seemed slurred, her eyes vatery, that she vas valklng “heavily”, and smelt of alcohol. He nevertheless completed the round vlth her, and then ordered her to his office. Mr.. Northcott testified that he lntervleved Ms. Collard in the presence of the General Duty C.O.111, Ms. K. O’Connell. Apparently during this lntervlev Mr. Northcott and the grievor vere only some three (3) feet apart, and it lasted approximately five (5) to ten (10) minutes. Mr. Northcott first enqulred vhether the grievor vas on any form of medlcatlon that might make her appear impaired. The grievor denied this but readily admitted that she had been at a Union meeting from approximately 16:OO to 19:30 on October 14, 1987. Over that period of tlme she consumed “a couple of beer*, folloving vhich she had gone for dinner and consumed no other liquor prior to coming on shift. At all times the grievor denied that she vas lmpalred. Mr. Northcott insisted that the grievor be sent home in a cab. Mr. Phillipson also testified for the Employer. A meeting -, ._ -3- was held in his office on October 26th, 1997, and the grievor vas granted full Union representatlon. While it vas Phillipson vho made the ultimate decision to suspend the grievor he admitted under cross-examination that he did not conduct an independent investigation into the matter, but rather relied soley on reports submitted by Northcott, Keeso and O’Connell. We suspect he relied most heavlly on Mr. Northcott’s. Ms. Collard protested her innocence throughout. Both Mr. Northcott and Superintendant Phillipson vere bearing strongly in mind Standing Order ffl the relevant portion of vhich states: 1. General Appearance (a) You vi11 not report for duty, or enter the Insti- tutlon, vhile smelling of alcohol, or vhlle apparently under the influence of drugs. Ms. K. Keeso. testified on behalf of the grievor . Her recollection of the events of late October 14th and early October 15th are as follovs. She and the grievor vent on duty as scheduled. The grievor picked up the flashlights and punch clock, noting that the latter vas not vorking properly. They rode up in the elevator together, relieved the previous shift, performed various security checks, filled out a shift change certificate and then sat in the office and performed certain logging functions. In the first hour the team did three tours or rounds of the cells, and thereafter tvo per hour. They then ordered Chinese food. Ms. Collard again noted that the punch clock vas malfunctioning. She herself vent to O’Connel (her first line supervisor1 to have the clock re-set and to pay for the take avay order, all apparently vithout incident. This all occured prior to Mr. Northcott’s arrival. Mr. Northcott made much of the potentially volatile situa- tion vhich exists in a correctional insltutlon and emphasized that dulled reactions due to impairment can cause a real danger to all employees. Therefore most telling in Ms. Keeso’s evidence vas her statement “There vas no slurring in her (the grievor’s) speech. She was not drunk. Iwoul&&&ave ww $he was.” Ms. Keeso readily admitted that due to the combined effects of a cold, a previously broken nose and being a smoker she could not have detected the smell of alcohol. Nevertheless, if there was one person in that insitution who was likely to feel the direct negative impact of an impaired partner, it was Ms. Keeso. Yet after some tvo (2) hours exposure to the grievor she felt no apprehension. We turn now to Ms. O’Connell’s only available evidence. She had both direct contact with the grievor on the night in question and acted as a witness in the grievor’s meeting with Northcott. Us. O’Connell was not called a witness by either party. In this respect we would note that.in matters of discipline the onus lies with the Employer. We do have in evidence Ms. O’Connell’s notes regarding the October 15th interview between the grievor and Northcott. We specifically note that no where in that report does Us. O’Connell venture the. opinion that g& thought the grievor was in any way impaired. Rather her report consists of not much more than a transcript of Northcott’s accusations and the grievor’s explanation and disclaimer. To vhat conclusion are we then drawn by these facts? The evidence of s&intendant., Phillipson 1s of little assistance as he did not conduct an independent investigation, choosing rather to rely solely on the reports of others. Ms. O’Connell’s written report is similarly of little value as she offered ‘no independent opinion of the grievor’s condition. We are left then with the reports and yiva vote testimony of the grievor, Mr. Northcott and Ms. Keeso. The grievor vas adamant that she vas not impaired. Mr. Northcott was equally adamant that she appeared to in mind that Mr. be 50, Laring Northcott had two and one-half years training vith R.C.M.P. in alcohol related squads. We are left then with the evidence of Ms. Keeso, the one person vho apparently had nothing to gain from these proceedings and everthing to lose from having missed the signs of impairment in her partner. She was adamant on the point that the grievor was not in that condition. On the balance of probabilities ve find that the grievor did not exhibit signs, either visual or olfactory of impairment. Mr. Northcott vas simply honestly mistaken. The grievance is hereby allowed. The tvo (2) day suspension is ordered removedfromthe grievor’s record and she is to be made whole for all lost monies. The Board shall remain seized in the event of any difficulty in the implementation of this award. -5- Date at Toronto this 16th dav of MaTi . t989 ‘YQjg2+------ ________-_-___-_--_-________________ .I. Forbes-Roberts, Vice-Chairperson -.- ,.‘. I. Freedman, Member D. Andersen, Member