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HomeMy WebLinkAbout1990-1567.Grinius.92-11-26 CROWN EMPLOYEES DE I / SETTLEMENT REGLEMENT -_ BOARD DES GRIEFS 1567/90, 1568/90, 13'57/90, 1409/90, 1495/89 IN THE MATTER OF AN ARBITRATION Under i THE CROWN EMPLOYEES cOLLECTIVE BARGAIninG ACT Before THE GRIeVAnCE SETTLEMENT BOARD _BETWEEN OPSEU ~Grinius) Grievor - and - ,' The Crown in Right of O~tario (Ministry of Citizenship) Employer BEFORE B. Fisher Vice-Chairperson G. MajesKy Member D. Montrose Member FOR THE R. Wells GRIEVOR Counsel Gowling, Strathy & Henderson Barristers & Solicitors FOR THE j. Knight EMPLOYER Counsel Fraser & Beatty Barristers & Solicitors HEARING August 26, 1992 IN THE MA TIER OF ARBITRATION Before THE GRIEVANCE SETFEEMENT BOARD OPSEU (GRINIUS) 1567/901568/90, 1357/90, 1409/90, 1495/89 MINISTRY OF CTHZENSHIP PARTIAL DISSENT * INTERIM DECISION #3 1 have reviewed the award of the board in the above noted matter and must regretfully register a partial dissent. The comments of the board clearly indicate some level of frustration with the protracted and elongated process which has taken two years, and produced no final result. I echo those sentiments and would anticipate that dispatch and haste will drive the remainder of this hearing process in order that there is some visible sense of justice to the grievor. The board has also noted the importance of considering whether or not the work environment is poisoned, especially if reinstatement is ultimately awarded. AlthOugh I sympathize with my colleagues who are concerned about the reintroduction of Mr. Grinius into his former workplace, I have no empathy or tolerance for this being the most important criteria. Especially within the context where the grievor has had to ride out the worst economic downturn in recent memocy. In addition, there is a silent presumption that the board has not had the opportunity to view the parties at close range in order to make a value judgement with respect to the credibility of the parties. Perhaps the board might conjecture that intuition has no place in the arbitration process. Yet that is a very important dynamic, because if the board is to be hefd hostage to the recited dissertations of counsel, then the arbitration process is first and foremost a creature of legal process, and human insight last. I strongly believe that the board has had ample opportunity to observe the employer and griever in close proximity, and through the filtered perspective of counsel, tn fact, we have had the griever and his supervisor testify earlier in these proceedin§s, which has given the board a good glimpse of the personalities at work in this situation. On that basis alone, we could .have made a determination. By trying to balance the interests of the parties, I believe that the board should.have made the critical decision of re-instatement, subject to mitigation after completion of the final phase of these proceedings. By delaying further, we have prolonged the arbitration process once again. The crucial thing t° remember is that the board opened up the whole discipline record for determination which had previously been settled by the parties, and the basis of interim decision #2. The board's cognizance of' the delay is worthy of' praise, but the record shows that the board' decided to hear the griever's record, and that clearly makes us' culpable for some part of that delay. Hopefully, the tone of interim decision //3 provides some pbsitive impetus for this matter to come to some speedy fruition. Additionally, I have reserved my right to submit my comments in beth interim decision //1 and//2, while acknowledging that these views have been forwarded to the board and held in abeyance pending our final decision in this matter. Respe~y?bmitted by, F.~~R~ONSULTANTSERVICES MARKHAM, Ontario November 1992 INTERIM DEC,SION #3 At our last hearing date the Board orally ruted t,hat a series of 15 letters Could constitute the discipline record of :he Griever. As the Union has grieved each one o! those 15 letters, the Board is not yet able to determine the exact composi.tJon of the Griever's proper discipline record, or even in fact if the Griever has a:ly discipline record, save and e:Ecept the culminating incident of thb conflict of interest which was determined in the first Interim Decision. At that point the Union made the following proposal to the Board. They would be prepared · to accept, for the sake of argument only, that the Griever's record was indeed all 15 of the-* aforementioned letters. However, even if the Griever's record consisted of'all of the 15 letters, discharge was not the appropriate penally therefore this Board should immediately order the · Griever reinstated. We could then determine the validity of the previous 15 disciplinary incidents and, if necessary, order payment of some or all of the compensation at a later date. In other words, if even the Ministry's best case scenario would not justify a discharge., then why not reinstate the Griever now and argue about the appropriate suspension, if any, at a later date. This approach certainly has an appeal to it, however it assumes that if we were to find thai discharge was too harsh a penalty, we would automatically reinstate the Griever to the same position from which he was discharged, in fact this my not be the remedy ordered by the Board, as we could order reinstatement upon conditions, for instance, reinstatement to a different position, reinstatement to a new location, or reinstatement upon conditions regarding future behaviour. In order to fashion the appropriate remedy the Employer should be permitted to produce evidence to show that if reinstatement was to be ordered it should be to something other than to the Grievor's last position and location. At present we have heard almost no evidence as to the Grievor's position, responsibilities, working conditions, etc. as ttm factual evidence led in tl~e first interim hearing dealt almost exclusively with the Grievor's duties while on a secondment outside the Ministry. Therefore we do not feel it would be appropriate to decide now whether or not the Grievor should be reinstated, fOr'any reinstatement order may not simply put the Gdevor heel(to his former job at his former location. The second part of this interim award has to do with the Employer's request that it be permitted to lead evidence on two issues: a) to describe the Grievor's work place and his duties; and b) to describe the context behind the discipline letters. However in so far as the Board has decided that it will not decide the issue of reinstatement without hearing all the evidence in this case, it is not necessary to ~ecide this second issue. -' The Board has so far dealt with this case on a step by step basis, thus the issuance of three interim awards. This process was originally adopted because it was hoped it. would shorten the process. )t has not, as Jt has now been over 2 years since the Griever was terminated. Therefore, when this hearing resumes, barring agreement by counsel as to a different procedure, we expect to hear the Employer's evidence on all of the disciplinary letters and any other evidence it wishes to lead. The Union wJJl thell respond to all of the Employer'~ evidence on alt of the disciplin~ letters and any other evidence it wishes to lead. Hopefully the next decision of this Board will be its last. Dated at Toronto 26r_h day of lqovember , 1992. Y B. FISHER Vice-Chairperson "l Partially Dissent" (atcached) '~-~ ~ GARY MAJES~ - Member D. MONTROSE - Member , ,~ ONTARIO PUBLIC SERVICE EMPLOYEES' UNION · % THE CROWN IN RIGHT OF ONTARIO (Mi~ of Citizenship) The Grievance Settlement Board Grievance of C. Grinius 1567/90, 1568/90, 1357/90, 1409/90, 1495/89 UNION NOMINEE ADDENDUM - INTERIM DECISION #1 After carefully reviewing the two decisions in the above noted matter ie., 1. discipline; and, 2. conflict of interest; I am concerned that some additional comment should be made with respect to impressions- which I was left with after several days of hearing, and in the final analysis may have been the driving po~itica~ forces which precipitated certain events in the work place designed to destabilize Mr. Grinius' professional and personal life. With respect to the decision regarding the discpline while at Waubetek, I concur with the board in this matter. In addition, I would also like to point out that the Ministry shoulders a significant responsibility for the debacle regarding Mr. Grinius' leave of absence to work for the Waubetek Development Group, funded by a grant from the Ministry. Clearly, this situation begs the following question be asked. 1. if Mr. Grinius left the Ministry as a cooling off period, it would seem that the Ministry was quite content to unload Mr. Grinius on the native community with no conscience of the implications of this action? At this juncture, the board has no specifics, but it is alleged that there were some concerns with Mr. Grinius' job performance etc. Atthough i do not accept the employer's assertion holus bolus, it strikes me as odd that after dharacterizing Mr. Grinius as a problem employee (in the Ministry of Citizenship's mind) the Ministry fe~t comfortable to dump Mr. Grinius in the ~ap of the native community. This kind of perverse indifference to the needs of the native community demonstrates a betrayal and breach of trust to the native community on the part of Anne Farraway, Area Manager for the Native Community Branch. This action in itself speaks to the weak judgement of. his supervisor, the director, and the Ministry, who were central figure in the Mr. Grinius' affair. With respect to the decision regarding the conf.!ict of interest, ! must respectfully disagree with the majority of the board in the form of a partial dissent. My concern is that there is a very real potential limitation being place upon civil servants who may wish to seek employment outside of government, Depending on the circumstances, it is quite possible that this aspect of the' award can be interpreted ~o place a fetter on civil servants wishing to ~eave government employment. Frankly, for many senior bureaucrats, public service is a revolving door, where their tenure is a career rung on the ladder before moving on. Micky Cohen (Molson's) · and Gautien Lussier (Weston's)'are two significant examples. Frankly, the issuance of a letter seeking work in the private sector should, and must,- be distinguished from the spectre of a conflict of interest violation. On this aspect alone, although it is a mute point, the .writing of letters seeking employm'ent has tremendous and far reaching implications and must surely be viewed as a healthy and innocuous action, barring any ill intent. In c~osing,'l would share with the board what is perhaps the most salient point, and one which deserves carefu~ consic~eration. The board has also determined that Mr. Grinius' letter to Chief Assinewai seeking to offer his services to complete a project for the Sheguindah First Nation forms the basis of "Conflict of Interest". And although the board has found that Mr. GrinJus was not motivated by an avaricious agenda, the board determined there has been a technical conflict of interest violation. Although I find the empfoyers "conflict of interest" assertion devoid of bad faith on the part of Mr. Grinius, the board was unfortunately asked to weigh the implications that Mr. Grinius' letter could conceivably be construed, if his request were denied, as giving rise to a situation where Mr. Grinius could invoke some form of financial retribution (denial of grants). My problem with this employer argument is that we are dealing with a hypothetical "what if" and not a "fact situation" where Mr. Grinius did not commit any of the actions set out in the hypothetical scenario. Inescapably, on that very technical point, the board has determined the actions of Mr. Grinius as "Conflict of Interest. My concern, quite honestly, is how can the employer neglect to address the broader question of "conflict of interest" concerning Dawn Madahbee and her attendance at the hearing. Firstly, counsel for the employer didn't know if their key witness (Dawn) would show up the first day of the hearing, even though a subpoena was issued for her attendance. It can be safely stated that much of the money the Native Community receives is from various government sources, both Federal and Provincial. And, what is striking is that the employer has conjured up a potential scenario 'where the actions of Mr. Grinius are deemed "conflict Of interest". Yet, the employer's key witness did not want any part of these I~roceedings, but with great reluctance gave testimony to prol~ up the employer's case. It is my belief that the employer's case presents a more serious breach of moral and ethical Conflict of Interest, because there is a very real perception and implication that if Dawn Madahbee (employer's key witness) didn't co-operate with the Ministry then there be could some financial retribution. And if anything, Dawn Madahbee- demonstrated that she was politically sophisticated, bright, and keenly aware of the mechanics of the political machinery, especially as it pertained to the interests of her own constituency. It is equally feasible to conjecture that by forcing financially dependent native community clients of the Ministry of Citizenship to testify at arbitrations, could conceivably compromise the Ministry and clients into acquiesing to the internal political needs of the Ministry? I certainly believe that is possible, because it wasn't a giant leap in logic to determine that the Industrial Development Officer in the. Native Community Branch had the political power to confer benefits in the form of grants; and shoufd Mr. Grinius' )etter for consulting Work have met with an unfavourable response, Mr. Grinius had the power to punish the native community by denying grants. Conversely, the Ministry is placed in a similar ethical delimma. in the 'final analysis, the Ministry of Citizenship (Native Affairs Branch) has demonstrated by their actions in the Grinius matter, a serious problem"with morals and ethics, good labour relations, and poor front line mangement. As a result, the internal politics of the Sudbury Native Community Development Branch has usurped and jeopardized the constituency it was .designed to serve; as well as workers; like Mr. Grinius, who appear genuinely concerned in helping the native community. ' Respectfully submitted by, FP_~~~I-,fttt~~NS~.TANTSERVICES , Un'on~J~olninee GM/mg MARKHAM, Ontario November 1, 1991