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HomeMy WebLinkAbout2014-3306.Maude.17-01-04 Decision Crown Employees Grievance Settlement Board Suite 600 180 Dundas St. West Toronto, Ontario M5G 1Z8 Tel. (416) 326-1388 Fax (416) 326-1396 Commission de règlement des griefs des employés de la Couronne Bureau 600 180, rue Dundas Ouest Toronto (Ontario) M5G 1Z8 Tél. : (416) 326-1388 Téléc. : (416) 326-1396 GSB#2014-3306 UNION#2014-0248-0032 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN Ontario Public Service Employees Union (Maude) Union - and - The Crown in Right of Ontario (Ministry of Community Safety and Correctional Services) Employer BEFORE Ken Petryshen Vice-Chair FOR THE UNION Ed Holmes Ryder Wright Blair & Holmes LLP Counsel FOR THE EMPLOYER Peter Dailleboust Treasury Board Secretariat Legal Services Branch Counsel HEARING CONFERENCE CALL October 17, 2016 November 23, 2016 - 2 - Decision [1] In a decision dated March 14, 2016, I directed the Employer to reinstate Mr. R. Maude to employment at the Hamilton-Wentworth Detention Centre (“HWDC”) with his seniority and “to place him in a substantially equivalent position that does not involve direct responsibility for inmates and does not provide an opportunity for contact with inmates.” I also indicated that I would remain seized of any implementation issues that might arise. The Employer placed Mr. Maude on payroll the day after it received the decision and subsequently assigned him to the Receptionist position. The Union claims that this position is not a substantially equivalent position and it requested that I direct the Employer to assign Mr. Maude to one of two possible positions on the basis that they are substantially equivalent to his former Correctional Officer (“CO”) position and are not impacted by section 7 of the Crown Employees Bargaining Act (“CECBA”). The Union’s primary submission is that Mr. Maude should be assigned to a position in the Central Control Module (“Control”). In the alternative, it requested that he be assigned to the Front Door post. Each of these posts is staffed with a CO. Counsel provided me with a factual context for resolving the relevant issues during the course of their submissions. Subsequent to the hearing I convened a conference call with counsel for the purpose of clarifying some of the facts related to the Union’s primary position that Mr. Maude be assigned to Control. [2] The Employer’s main reasons for discharging Mr. Maude were because he struck an inmate with a single punch to the head while trying to control him in a segregation cell and he did not reference this punch in his Occurrence Report. Mr. Maude did admit to striking the inmate at the time he was suspended pending an investigation. After considering all of the circumstances, including Mr. Maude’s 28+ years of seniority, his virtually unblemished discipline free record and the fact that it was very unlikely that he would repeat such misconduct, I determined that it was appropriate to reinstate him to employment at the HWDC without compensation. Given the provisions of section 7 of the CECBA, I did not have the authority to direct Mr. Maude’s reinstatement to his - 3 - former General Duty Officer position. I commented on the authority I did have and what I was prepared to do about remedy in the following paragraphs of the decision starting at page 33: [53] The general authority for an arbitrator to substitute another penalty is set out in subsection 48(17) of the Labour Relations Act, 1995. This subsection provides as follows: Where an arbitrator or arbitration board determines that an employee has been discharged or otherwise disciplined by an employer for cause and the collective agreement does not contain a specific penalty for the infraction that is the subject matter of the arbitration, the arbitrator or arbitration board may substitute such other penalty for the discharge or discipline as to the arbitrator or arbitration board seems just and reasonable in all the circumstances. [54] The general power in subsection 48(17) of the Labour Relations Act, 1995, to substitute a different penalty as set out above is restricted by subsections (4), (5) and (6) of section 7 of the CECBA, which provide as follows: 7. (4) In substituting a penalty under subsection 48 (17) of the Labour Relations Act, 1995, the Grievance Settlement Board shall not provide for the employment of an employee in a position that involves direct responsibility for or that provides an opportunity for contact with residents in a facility or with a client if the Board has found that the employee, (a) has applied force to a resident in a facility or a client, except the minimum force necessary for self-defence or the defence of another person or necessary to restrain the resident or client; (b) has sexually molested a resident or a client. 7. (5) In subsection (4), “facility” means (e) a correctional institution under the Ministry of Correctional Services Act. “resident” means a person who is an inmate, patient, pupil or resident in or cared for in a facility. 7. (6) In substituting a penalty under subsection 48 (17) of the Labour Relations Act, 1995, in circumstances in which it is - 4 - restricted by subsection (4), the Grievance Settlement Board may provide for the employment of the employee in another substantially equivalent position. [55] In the circumstances of this case, I have the jurisdiction to substitute a penalty for CO Maude’s discharge as long as I reinstate him to a substantially equivalent position that complies with the restriction in 7(4) of the CECBA. The restriction in 7(4) does not apply to the Employer. It is therefore open to the Employer to place CO Maude into the GDO position that he had occupied prior to his discharge. Faced with a direction to reinstate CO Maude and the strong evidence that indicates that he is unlikely to repeat his misconduct, I anticipate that the Employer will give consideration to returning him to a GDO position. The Union requested that I should direct the Employer to reinstate CO Maude to a position that satisfies the subsection 7(4) restriction, such as a position in control. I am not inclined to do that and, assuming the Employer does not return him to a GDO position, I will leave it to the parties to agree on an appropriate position for CO Maude, having regard to the restriction in subsection 7(4). [56] For the foregoing reasons, ... CO Maude’s grievance dated November 3, 2014, is allowed in part. If the Employer is not prepared to place him in his former GDO position, I direct the Employer to forthwith reinstate CO Maude to employment at the HWDC with his seniority and to place him in a substantially equivalent position that does not involve direct responsibility for inmates and does not provide an opportunity for contact with inmates. Having regard to the seriousness of his misconduct, the reinstatement shall be without compensation. Although I appreciate that CO Maude has been absent from the HWDC for a long time and that he has experienced significant financial losses, I am satisfied that a four week suspension would not be an appropriate penalty for the unjustified and excessive use of force on inmate Woods. The discharge shall be removed from his record and substituted with a suspension from the date of his discharge until the date of his reinstatement. I will remain seized with any issue that may arise from the implementation of these directions. [3] Superintendent Laughlin met with Mr. Maude on June 20, 2016, and discussed his assignment to the Receptionist position. Located in the administrative area near the front of the institution (outside of the secure part of the HWDC), the Receptionist performs a variety of administrative duties. It is unnecessary to list these duties in detail because it is quite obvious that they are significantly - 5 - different from the duties of a CO. The general duties of a CO involve the care, custody, control and supervision of inmates, whereas the Receptionist does not perform a role that involves supervising inmates. As a general rule, COs do not perform Receptionist functions. The one exception is with respect to phone calls to reception during nights and on weekends when the Receptionist is not on duty. These phone calls are answered by the CO in Control. [4] The Employer provided Mr. Maude with a week of training for his new position and advised him that he was not permitted access to the institution past grille one. He cannot therefore attend any activities held for COs that takes place within the secure part of the institution. For example, he is precluded from having his lunch or attending any functions in the lounge located within the secure area of the facility. He cannot use the gym located across from the lounge. There is a lounge at the front of the institution that Mr. Maude can access for his lunch and breaks. [5] In his Receptionist role, Mr. Maude is scheduled to work Monday to Friday, from 8:30 a.m. to 4:30 p.m. The Receptionist rate is $22.14 per hour. In contrast, the hourly rate for a CO is $32.64. The Employer has been paying Mr. Maude on the basis of a 40-hour work week at the CO rate and it red-circled his pay at that rate. This means that his hourly rate will not increase until the hourly rate of pay for Receptionist reaches $32.64. Mr. Maude will not receive the 3% special increase and the negotiated increase of 1.4% that all COs are entitled to receive effective January 1, 2017. As a Receptionist, as opposed to a CO, he will not have the opportunity to work overtime or on statutory holidays. These matters will have an impact on his pensionable earnings. [6] There are four CO positions assigned to Control at the HWDC. Control is staffed only with COs on 12-hour shifts. Of course, there is no opportunity for contact with inmates while a CO is working within Control. A CO at the HWDC can access Control and a washroom without having the opportunity for contact with inmates. There is a potential opportunity for contact with inmates if the CO was - 6 - to leave Control and go to areas within the secure part of the HWDC, such as of the staff lunchroom and gym, because of inmate movement within the institution. Inmates, under the supervision of COs, move to and from their living units for a variety of reasons. An example is the movement of an inmate from a living unit to the Admitting & Discharge area for the purpose of being transported to a Court and the return of the inmate to the living unit later in the day. The Union takes the position that the opportunity for Mr. Maude to have contact with inmates if he left Control can be eliminated or virtually eliminated by restricting his movement to times when inmates are under lockdown (restricted to their cells). Inmates are locked down between 11:30 a.m. and 1:00 p.m. for lunch and between 4:00 p.m. and 6:00 p.m. for dinner. Inmates are also in lockdown at night. [7] There are currently no vacant positions in Control. A number of COs that work in Control are there on an accommodation. COs with a medical restriction of no or minimal inmate contact are often placed in Control. [8] One of the tasks of the CO in Control is to man an electronically operated security control system consisting of items such as a control console, a closed circuit T.V. system (cameras and monitors) and video tape recorders. It is with this system that the CO controls security doors and therefore controls the movement of inmates and staff throughout the institution. Inmate movement within in HWDC is always supervised by a CO. The CO in Control performs general monitoring functions primarily for the purpose of ensuring the safety of staff and inmates. [9] As noted previously, the Union’s alternative position is that Mr. Maude should be assigned to the Front Door post. This post is located outside the secure part of the institution and is very close to the Reception area where Mr. Maude now works. Since the parties focused on whether the position in Control was a substantially equivalent position, I was not provided with much information about the Front Door post. I will comment more about this later. - 7 - [10] I will refer to some of the submissions made by counsel during the course of providing my reasons. I note at this point that counsel referred me to the following decisions: Travers and Ministry of Correctional Services (1981), GSB Nos. 213/78 and 79/79 (Swinton); OPSEU (Van’t Hullenaar) and Ministry of Correctional Services (1982), GSB No. 555/81 (Jolliffe); OPSEU (Thibert, McGill and Jung) and Ministry of Correctional Services (1985), GSB No. 556/81 (Verity); Ontario (Min. of Correctional Services) v. OPSEU, 57 O.R. (2d) 641 (Ont. Div. Ct.); OPSEU (Gaston) and Ministry of Correctional Services (1988), GSB No. 117/83 (Jolliffe); and, OPSEU (Sindall/Talbot) and Ministry of the Solicitor General & Correctional Services (1997), GSB Nos. 164/96 et al. (Gray). [11] I will review the above decisions in some detail for essentially two reasons. The issues that can arise in a case like this have not been addressed in a decision for quite some time and it will be useful to explore the governing principles. As well, a review of the decisions which address what constitutes a substantially equivalent position and the effect of the restrictions set out in section 7 of CECBA will provide the context for appreciating the submissions of counsel. [12] The Travers decision was decided in 1981 and appears to be the first decision to grapple with the relevant issues. While working as a CO2 at the Niagara Detention Centre (“Niagara”) in Thorold, Travers assaulted an inmate and was discharged. The Board found that Travers had used excessive force on the inmate and exercised its general power under what was then was s. 18(3) of the CECBA to substitute a penalty that it considered “just and reasonable in all the circumstances.” In accordance with s. 18(3a) of the CECBA, the Board ordered that Travers be reinstated to a substantially equivalent position in the Ministry that he was qualified to fill. The provisions of ss. 18(3a) and (3b) are essentially those now found within ss. 7(4), (5) and (6) of the CECBA. [13] The Ministry had offered Travers a Clerk 3 General position at the Mimico Correctional Centre in Toronto, which was about 103 miles from his home in Ridgeway. Travers did not report to work at that facility and the parties - 8 - attempted to negotiate the issue of a substantially equivalent position, without success. [14] At the hearing, evidence was led about relevant vacancies. The union indicated that Travers could fill any of the following three vacant positions: Records Clerk (Clerk 3 General) at Niagara and Clerk 2 General and Records Clerk (Clerk 3 General) at the HWDC. Evidence was led about inmate contact with respect to the vacant Records Clerk position at Niagara. The Ministry agreed that Travers could fill the Clerk 3 General position at the HWDC since the position was vacant and involved no inmate contact. Travers indicated that he was willing to fill this position if his salary was protected. [15] Evidence was also led about redesigning a CO’s job for Travers. COs at Niagara normally rotated through a series of jobs, one of the jobs being the Control Module Operator. The CO occupying this position controls “security grills, controls inmate movement, and maintains key security.” There was evidence that “the Control Module Operator on the night shift would have no inmate contact, except in passing through corridors to and from his station on breaks or at the beginning and end of the shift.” [16] The union argued that Travers should be reinstated to a position in Control at Niagara so that he could maintain his CO2 classification. In the alternative, it argued that he be given the Clerk 3 General position, preferably at Niagara, but possibly at the HWDC, as long as his salary is permanently linked to the CO2 classification. The employer argued that it had no obligation to create a position for Travers, that he was entitled only to a vacant substantially equivalent position, with his pay tied to that job. [17] The relevant factors the GSB considered and how it weighed them in Travers are worth reviewing in some detail. In the following paragraphs beginning at p. 6, the Board comments on the impact of s. 18(3a) on its general power to provide a remedy: - 9 - Having considered the evidence, we must consider the meaning of s. 18(3a), quoted earlier. A range of issues are raised by the provision, such as the right to “bump” into a position which is not vacant, the relevance of geographical location, and the obligation of the employer to make reasonable accommodation for the grievor by refashioning a job. This award will be by no means exhaustive as to the parties’ obligations and rights under s. 18(3a), nor should it be, as the application of the subsection must vary with the facts of each case. All that we can hope to do is to elaborate some guidelines which may assist in the resolution of other cases in which s. 18(3a) has been or will be invoked. One purpose of s. 18(3a) is clear – it is designed to restrict the Grievance Settlement Board’s broad discretion in s. 18(3a) to substitute for dismissal a penalty which it considers “just and reasonable” in the circumstances. In cases where excessive force has been used against a “resident”, that discretion can no longer be invoked to return the employee to a position with resident contact. The legislation seems to indicate that there is a concern that the conduct might be repeated and residents should be protected from such risk, however slight. As well, the legislation may be thought to provide some deterrent to such conduct on the part of other employees because of the gravity of the bar from the previous duties. While s. 18(3a) limits the Board’s discretion, it should not be regarded as changing the nature of the Board’s task in applying s. 18(3a). The Board must still consider whether the penalty is just and reasonable in the circumstances… However, there is no reason to ignore the existing jurisprudence with regard to penalty because of s. 18(3a). So far as possible that section should not create a disproportionate penalty because of the particular Ministry in which an incident occurred nor the timing of the disciplinary incident. [18] After setting out the submissions of counsel, the Board considered the union’s request to have Travers placed in a position in Control as follows: There can be no doubt that a Correctional Officer’s job without inmate contact would be the ideal job to fit the requirement of a substantially equivalent position. Unfortunately, there is no such job normally existing in that classification, for the main job function is custodial. It would only be possible to reinstate the grievor in a Correctional Officer classification if a job could be designed to remove him from contact with and responsibility for inmates. It was suggested that a permanent assignment to the Control Module Operator’s job would meet these criteria. There are several - 10 - problems with this suggestion, however. First, the Control Module Operator’s job does not seem to fit the requirements of s. 18(3a). This is not just because the grievor might have to pass inmates in the hall. Surely, the bar on contact in s. 18(3a) must be subject to a de minimis reading – that is, isolate and infrequent contacts may not be barred. The concern would seem to be contact which might lead to further confrontation. Here, there might be some concern, as there would be regular passage through the secure part of the institution. This seems to create a problem, although at night the inmates would be locked up. In addition the Control Module Operator has the direct responsibility for inmate movement, controlling the security grills, and s.18(3a) prohibits such responsibility for inmates. More importantly, we are not prepared to reinstate the grievor to such a job because it would require the employer to fashion a new position for the grievor…the grievor has a weak claim to accommodation. He has been guilty of serious misconduct, and he has a relatively short period of seniority (just short of two years at discharge). Furthermore, he has already shown misjudgment in relation to the operation of the module, as the reasons in the first award in this case indicate. Finally, on the evidence, it would not seem wise to order the kind of accommodation here. It is rare to keep one person assigned to the Control Module Operator’s job, except temporarily for health reasons, and evidence was given that it is important to have all officers familiar with the Module Operator’s job. Therefore, the Module Operator’s job is not one for which the grievor would be eligible under s. 18(3a). [19] The Board then considered the other possible jobs available for Travers and wrote as follows beginning at p. 10: In considering the other jobs available, which are all Clerk 3 General jobs (at Mimico, Niagara and Hamilton-Wentworth), several problems arise. Section 18(3a) states that the grievor should receive a “substantially” equivalent job, rather than one “exactly” equivalent. In search for factors of equivalence between jobs, several arise as possibilities: pay level, job content, geographic location, and level of skill and responsibility. In this particular case, the Union stressed the importance of preserving pay level and geographic location. In the particular circumstances, this is understandable. Content is a problem here, as it would seem to be impossible to find a job with the content similar to that of a Correctional Officer but without inmate contact. That may not be the case where this section is applied in other Ministries. - 11 - The Board then dealt with the factor of geographical location, which is not a relevant consideration in our case. The Board decided that the job at Mimico was not a substantially equivalent position because of the distance between Traver’s home and Mimico, and “the need for tailoring the section to fit each individual’s circumstances.” It then considered the other two positions. This brings the jobs open for consideration to two: the Clerk 3 General jobs at Niagara and Hamilton-Wentworth. The first is filled by another employee at this time, but Mr. Goudge argued that the grievor should have the right to bump into that position. It may be that in some cases, the grievor must be given a right to a job that is not vacant, in order that the legislation will not make reinstatement meaningless or unduly onerous. However in this case, bumping should not be considered. The grievor has been guilty of serious misconduct, and it would seem unfair to allow him to bump an innocent employee, particularly in light of his relatively short period of seniority and the availability of a similar job at Hamilton. The final question is whether the Clerk 3 General at Hamilton can be regarded as “substantially equivalent” if the grievor is paid according to the pay scale for that job…. Level of pay is an important factor to consider in assessing substantially equivalent positions. From the employee’s point of view, it is probably the most important factor. Comparing the two levels of pay here, there is a substantial divergence in pay. Should the employee be reinstated to a Clerk 3 General position with the salary usually paid for that job, the result would be a burdensome one and, unlike the usual penalty for disciplinary action, it could be characterized as an ongoing one. …the words of s. 18(3a), when read with s. 18(3), give the Board a broad discretion to shape a remedy to meet the circumstances of each case so as to reach a just and reasonable result within the obvious restrictions imposed by s. 18(3a). Pay level is relevant to a determination of “substantial equivalence”, and protection of pay level may be important to deciding whether that criterion is met and whether the penalty is “just and reasonable”. However, in deciding whether to ensure that the grievor maintains the salary of his previous jobs (with associated increments) for the rest of his time in the substantially equivalent position, there are considerations beyond those pertaining to the personal concerns of the grievor discussed above. In this particular case, the two salaries are less divergent if considered on the same hours of work basis – e.g. 36¼ hours….Furthermore, it is relevant to consider that - 12 - a proportion of the Correctional Officer 2 salary reflects a premium paid for dangerous work (similar to the $1,000 premium paid to other Ministry employees with inmate contact). A person acting as a Clerk 3 General is not subject to hazardous conditions. As well, part of the higher salary may reflect the rotating shift aspect of the Correctional Officer 2 job. Finally, one has to consider the general labour relations impact of paying one employee on a basis totally different from others doing the same job, particularly an employee who has been guilty of serious misconduct. No doubt this would cause some discontent among employees. [20] After considering these various matters, the Board decided as follows: In weighing these considerations, we have reached a compromise position in this case. The grievor should be reinstated to the position of Clerk 3 General at Hamilton-Wentworth Detention Centre at the rate of pay for a Correctional Officer 2 of his experience in May, 1980, and he should maintain that rate of pay until the maximum pay level for the Clerk 3 General reaches it. From that period, he should be paid as a Clerk 3 General. Such a decision places the grievor in a substantially equivalent position at the date of reinstatement. Although the job content of his former and new jobs differs, this cannot be avoided. He is guaranteed his previous salary as of the date of reinstatement. While the effect of this decision is to leave the grievor with ongoing effects from his misconduct, and, therefore, with a very heavy penalty, that result seems consistent with the requirements of ss. 18(3) and 18(3a), the labour relations considerations above, and the facts in this particular case. The essence of the award is that Mr. Travers should be given a second chance. It may be that an employee with longer seniority or faced with different circumstances should be treated differently… [21] The Van’t Hullenaar decision deals with the merits of the discharge of a CO from the HWDC for offences that included the excessive use of force on inmates. The Board found it appropriate to modify the penalty of discharge and noted that it could not reinstate him to a position which involved direct responsibility for or contact with inmates. Starting at p. 32 the Board wrote as follows: …Our decision is that the grievor should be again employed in a suitable position with the Ministry of Correctional Services or another Ministry, provided that the rate of pay for such position need not be the equivalent of the grievor’s salary in 1991, but shall not be more than $1,000 per annum less than the minimum rate of - 13 - a CO3. In adding that proviso, we take notice of the fact mentioned in the second decision in Travers, supra, at page 13, that a Correctional Officer’s rate “reflects a premium paid for dangerous work”. … It is considered that a period of two months is more than adequate to find a suitable position in which the grievor can be re-employed. We retain jurisdiction in the event of failure and would be prepared, on the application of either party, to hear representations in respect of the options available. This was the course followed in Travers, supra, where the Board rendered a second and binding decision. It is hoped that this will not be necessary in this case. [22] In the Thibert, McGill and Jung decision, the Board found that each grievor had used excessive force against an inmate at the Lindsay Jail and ordered that they be reinstated to a “substantially equivalent position” within the Ministry. The employer reinstated the three grievors to Security Officer (“SO”) positions at the Millbrook Correctional Centre. The matter came before the Board to resolve what was described as “numerous complex principles of compensation”. The only relevant matter for our purposes is the way the Board dealt with the union’s claim that the SO position was not substantially equivalent to the CO position because of the lower rate of pay for the SO. The union requested that the grievors be red-circled at the CO rate in line with the rationale in Travers, supra. Counsel for the employer argued that the Board did not have the jurisdiction to grant the union’s request because the “classification of employees is an exclusive management function as contained in Section 18 of the Crown Employees Collective Bargaining Act, and that wage rates applicable to the Security Officer position flow from the creation and classification of that position” and further “that a substantially equivalent position contemplates an existing position within the context of the Collective Agreement, and that the Board had no jurisdiction to create, in effect, a new position which was not contemplated by either the Collective Agreement or the Act.” The Board concisely dealt with this submission at p. 10 as follows: …the Board is satisfied that we have jurisdiction to fashion a remedy under the broad remedial authority given to us under Sections 19(3) and 19(4)(a) which can met the test of substantial equivalency. In our opinion, the rationale of Vice-Chairman - 14 - Swinton in the Travers decision is a reasonable and flexible approach to accomplish that objective. After noting that the level of pay is the single most important factor in determining substantial equivalency and after concluding that the SO pay rates were not substantially equivalent to CO rates, the Board determined that “the device of red-circling the Grievor’s salary is a necessary and proper adjustment to enable the Security Officer position to be substantially equivalent to that of a Correctional Officer.” [23] The employer applied for judicial review of the above decision. It took issue with six determinations made by Board. One of the determinations the employer took issue with was the decision to red-circle the grievor’s salary. In finding that the decision of the Board on this issue was not unreasonable, the Divisional Court wrote as follows: 21. Having reinstated the grievors in accordance with s. 19(4), a question remained whether the position of Security Officer selected by the Ministry was “substantially equivalent”. The Board was not purporting to alter wages within a classification when it required the applicant to pay the grievors at the higher rate mentioned. On the contrary, it was a decision made in an effort to give effect to substantial equivalence. In my opinion it was a decision within the Board’s jurisdiction and one that cannot be said to be patently unreasonable. [24] In the Gaston decision, the Board ordered the reinstatement of Gaston to a “substantially equivalent position”, with effect from June 1, 1986. Gaston had served as a probationary CO1 at the Toronto East Detention Centre from June 21, 1982 to January 12, 1983, when he was discharged. In the normal course he would have become a CO2 on June 21, 1983, after one year of employment. The employer reinstated Gaston to a Security Officer 2 position at the Toronto East Detention Centre with the salary of a CO1, and with seniority effective from June 1, 1986. The employer had therefore red-circled Gaston at the CO1 rate of pay and treated his probationary period of 12 months as having started from June 1, 1986, his reinstatement date, without consideration of the months he had been on probation prior to his termination. The SO2 duties performed by Gaston - 15 - included the monitoring of inmates in certain locations when he worked in Control. The duties he performed in Control were the same duties performed by a CO2 when a CO2 was in Control. [25] The Board had to resolve a number of issues. It first addressed the question of whether its direction was correctly implemented when Gaston was reinstated as of June 1, 1986, to the SO2 position. I think it is safe to presume that the Board had to deal with this issue because the union had requested that Gaston be returned to a CO position. The Board noted that it was impossible to reinstate Gaston to a CO1 position since the duties of a CO involve daily contact with inmates. Recognizing that an SO2 did not have contact with inmates and that an important part of an SO2’s duties in Control was the monitoring of inmates by remote control, the Board found no fault with the employer’s decision to reinstate him to the SO position. The Board noted that the employer had made a serious effort to comply with the Board’s direction. [26] The Board also found, in effect, that starting Gaston on a one year probationary period as of his reinstatement date of June 1, 1986, and paying him for a year at the CO1 rate from that date did not amount to substantially equivalent treatment, essentially because it did not take into account his previous 6 months of probationary employment as a CO1 and because while in Control he performed the same duties as CO2 employees. The Board determined that Gaston should only have been on probation and paid at the CO1 rate for about 6 months after his reinstatement. It concluded that his probationary period ended on December 31, 1986, and that as of January 1, 1987, his pay should be calculated at the minimum CO2 level, and at the appropriate CO2 levels thereafter. The Board determined that the red-circling of Gaston at the CO1 rate did not amount to substantial equivalency in circumstances where he was performing the same work that CO2s performed in Control. Noting that the circumstances in Gaston were different than those in Travers, the Board found that Gaston was entitled to a rate of pay that corresponded to the duties he performed. - 16 - [27] In the Sindall/Talbot decision, the Board directed the employer to reinstate the grievors “in positions and at duties which are substantially equivalent save as to direct responsibility for and opportunity for contact with inmates”, and it remained seized of implementation issues. The Board made the following comments at p. 32: The parties made no submissions about the meaning of “another substantially equivalent position”. In particular, there was no argument about whether my power to provide for the employment of the grievors in another substantially equivalent position is limited by the present availability of such a position. It is not at all obvious that it is. Like the issue of quantum of compensation payable and other issues of implementation, however, this is an issue with which I remain seised and will address only if the parties are unable to resolve it themselves. [28] The first issue that requires resolution in the instant case is whether the Receptionist position is a substantially equivalent position for Mr. Maude given that he had been a CO prior to the termination of his employment. As noted by the Board in Travers, the ideal choice for substantial equivalency would be a CO position that would not run afoul of the restrictions in section 7(4) of CECBA, but that such a position would be rare since the main job function of a CO is custodial. In this instance, the Employer assigned Mr. Maude to the Receptionist position because it was vacant and in its view it complied with the dictates of section 7(4) of CECBA. In an effort to make the Receptionist position substantially equivalent in line with the compromise approach adopted in Travers, the Employer red-circled Mr. Maude’s pay at the CO rate. [29] The Board in Travers identified pay level, job content, geographic location and the level of skill and responsibility as factors for assessing equivalence. When using these factors to compare the Receptionist and CO positions it is quite apparent that the Receptionist position is not substantially equivalent. As noted previously, the administrative duties performed by the Receptionist are very different from the custodial duties performed by a CO. The level of skill and responsibility of the two positions are also very different as reflected by the higher hourly rate attached to the CO position in the Collective Agreement. In - 17 - the hierarchy of positions with the HWDC, the CO position has a higher status than the Receptionist position. Although the Employer has addressed the issue of level of pay, I agree with the Union’s submission that the financial consequences for Mr. Maude, even with the red-circling of the Receptionist position at the CO rate, will still have an impact on his earnings. Not only will he not receive the usual CO negotiated increases, but he will be deprived of overtime opportunities and the consequent loss of earnings. On a consideration of these factors, therefore, I am compelled to the conclusion that the Receptionist position is not substantially equivalent to Mr. Maude’s former CO position. [30] The Employer took the position that the only option that I had if I determined that the Receptionist position was not a substantially equivalent position is to remit the matter back to the Employer to find a position for Mr. Maude that was substantially equivalent. Counsel for the Employer argued that I did not have the jurisdiction to do anything else, including determine whether the two positions the Union selected for Mr. Maude were substantially equivalent positions. The Union disagreed with this position and so do I. [31] An arbitrator is generally provided with broad powers to provide an appropriate remedy for a violation of the Collective Agreement. In discipline matters where the Collective Agreement does not provide for a specific penalty, the arbitrator may substitute a different penalty if it seems just and reasonable to do so in all the circumstances. As highlighted previously, section 7(4) of CECBA provides that the GSB may provide for the employment of the employee in another substantially equivalent position when substituting a penalty. In my view, this section and its general powers to grant remedies gives the GSB the authority to determine whether alternative positions are substantially equivalent and to direct the Employer to assign the employee to one of these alternative positions if there is a dispute about whether the Employer’s initial selection of a position was appropriate. Following my direction to the Employer to place Mr. Maude in a substantially equivalent position, I anticipated that the Employer and the Union would engage in a process that would hopefully result in the placement of Mr. - 18 - Maude in an appropriate position. When a dispute arose about the Employer’s decision to assign Mr. Maude to the Receptionist position, the Union offered two other positions at the hearing which it believes are substantially equivalent to his former CO position. This was the process that was followed in Travers where the union proposed certain positions that it believed were substantially equivalent positions, as opposed to the position offered by the employer, and Board reviewed all of them and selected a position for Travers that was substantially equivalent. This was also the process contemplated by the Board in Van’t Hullenaar when it reinstated the grievor and indicated that it would retain jurisdiction “to hear representations in respect of the options available” if a dispute arose over the position assigned to Van’t Hullenaar. There was no suggestion in these cases that the Board did not have the jurisdiction to proceed in this fashion. This manner of proceeding has the advantage of being the most efficient way to resolve a dispute about whether certain positions are substantially equivalent and whether they comply with the restrictions in section 7(4) of CECBA. [32] I turn now to a consideration of Union’s primary position, namely that I should direct the Employer to assign Mr. Maude to a CO position in Control. Counsel for the Employer argued that, apart from the restrictions in section 7(4) of CECBA, there are factors that should cause me to exercise my discretion in favour of not assigning Mr. Maude to Control. Counsel submitted that there are no vacancies in Control and that some of the COs at that post are on an accommodation. He argued that placing Mr. Maude in Control would result in an employee being bumped from Control and have the effect of limiting the number of positions the Employer would have for accommodation purposes. Counsel submitted that a position should not be fashioned for Mr. Maude and that, given that nature of his misconduct, he should not be put in a position where he would be monitoring inmates and staff. In addition to these considerations, the Employer also argued that Mr. Maude is not eligible for a position in Control given the restrictions in section 7(4) of CECBA. - 19 - [33] Whether the factors identified by the Employer would or would not affect my decision about the appropriateness of assigning Mr. Maude to Control, they are irrelevant if I am precluded from directing the Employer to make such an assignment because the position provides an opportunity for contact with inmates or involves direct responsibility for inmates. The Union’s position that a CO position in Control with some limitation on when Mr. Maude could enter the other secure areas of the HWDC may sufficiently address the issue of his having the opportunity for contact with inmates. However, the more problematic issue in my view is whether the CO position in Control involves direct responsibility for inmates. [34] As noted previously, the Union in Travers had argued unsuccessfully that Travers should be reinstated to a position in Control, a position which controls security grilles and controls inmate movement. As counsel for the Union noted, the Board came to this conclusion primarily because it was not prepared to require the employer to fashion a new job for Travers. However, the Board also expressed the view that reinstating Travers to a position in Control was problematic because he would have direct responsibility for inmate movement and that the CECBA prohibited him from having such a responsibility. Union counsel argued that the subsequent cases have moved away from this concern and in support for this position he relied on the Thibert, McGill and Jung decision and, in particular, the Gaston decision. He submitted that the Thibert, McGill and Jung decision implicitly and the Gaston decision explicitly found that being engaged in the monitoring functions in Control do not fall within the restriction of no direct responsibility for inmates. In my view, these decisions do not find that the monitoring functions and the control of inmate movement performed by an employee in Control did not run counter to the restriction of no direct responsibility for inmates. In each of these cases, the employer reinstated the employees to the SO position which performed the usual monitoring duties in Control. As one would expect, the union was content to the reinstatement of the employee to a position in Control and the only issue in these two cases concerned the pay the employees should have received in order to meet the test - 20 - of substantial equivalency. The issue of whether the duties of the Control position involved the direct responsibility of inmates was not an issue in either of these cases and the conclusions reached in these decisions, particularly in the Gaston decision, did not decide that the monitoring of inmates by an employee in Control was not problematic in light of the restrictions in section 7(4) of CECBA. [35] If Mr. Maude was reinstated to a position in Control at the HWDC, his duties would include the control of grille doors for the purpose of controlling inmate movement. He would also have the general obligation to monitor inmates and staff and to report on conduct in contravention of standing orders and Ministry policy. I agree with observation of the Board in Travers that the performance of such duties in Control is evidence that the employee has a direct responsibility for inmates. Irrespective of my view as to whether it would be otherwise appropriate in these circumstances to direct the reinstatement of Mr. Maude to a position in Control, I simply do not have the authority to do so given the restriction on my general power to substitute a different penalty contained in section 7(4) of CECBA. [36] The final issue concerns the Union’s alternative position that I should direct the Employer to assign Mr. Maude to the Front Door post. Although I was provided with some information about this post, such as the Union’s view that the position does not involve inmate contact, I was not provided with a complete factual picture about this post. For example, I was not provided with the duties of the CO that occupies the position. Although I concluded previously that I did have the jurisdiction to direct the Employer to assign Mr. Maude to an appropriate position, I can only do so if I am aware of the relevant facts about the position. Accordingly, I find that I am left with no alternative but to refer the issue of whether the Front Door post is an appropriate post for Mr. Maude back to the parties and to remain seized of the issue if the parties are unable to resolve it themselves. It was my impression that prior to the hearing the Employer had not previously considered the Front Door post for Mr. Maude. Counsel for the Employer indicated that the Employer would take a look at whether Mr. Maude - 21 - could be assigned to this post if I determined that the Receptionist position was not substantially equivalent. The Employer will now have that opportunity. If there is no opportunity for inmate contact and no direct responsibility for inmates, the Front Door post may very well satisfy the test of substantial equivalence and Mr. Maude could be placed in the position to perform CO duties and to be paid at the CO rate without red-circling in line with the approach taken by the Board in the Gaston decision. [37] In summary, for the foregoing reasons, I have determined that: 1. The Receptionist position is not a substantially equivalent position for Mr. Maude. 2. I do not have the authority to direct the Employer to assign Mr. Maude to a position in Control since the position involves direct responsibility for inmates. 3. The issue of whether the Front Door post is a substantially equivalent position for Mr. Maude is referred back to the parties for consideration. I will remain seized of this matter if the parties are unable to resolve it themselves. Dated at Toronto, Ontario this 4th day of January 2017. Ken Petryshen, Vice Chair