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HomeMy WebLinkAbout1992-3422.Finlayson.93-09-16 ~ /: """ ONTARIO E:MPLOYES DE: LA COURONNE: .'R - -, CROWN EMPLOYEES DEL 'ONTARIO 1111 GRIEVANCE COMMISSION DE , SETTLEMENT REGlEMENT BOARD DES GRIEFS 180 DUNDAS STREET WEST SUITE 2100, TORONTO, ONTARIO, M5G lZ8 TELEPHONE/TELEPHONE (416) 326-1388 180, RUE DUNDAS OUEST BUREAU 2100, TORONTO (ONTARIO) M5G lZ8 FACSIMILE/TELllcOPIE (416) 326-1396 3422/92, 3281/92 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN OPSEU (Finlayson) - and - Grievor \ The Crown in Right of Ontario (Ministry of Correctional Services) - Employer BEFORE J Devlin Vice-Chairperson FOR THE K. Lawrence GRIEVOR Grievance Officer Ontario PUblic Service Employees Union FOR THE M Mously EMPLOYER Grievance Administration Officer Ministry of Correctional Services Written submissions were received on August 27, 1993 I I ,r ~ ;;:5 1 l The issue, in this case, concerns the propriety of both \ a suspension with pay and a letter of reprimand issued to the Grievor, Vern Finlayson, in January of 1993. The Grievor is employed as a Storeskeeper at the Elgin- / \ Middlesex Detention Centre. On December 9, 1992, he attended a meeting with Paul Downing, the Senior Assistant Superintendent, concerning the use of supply carts located in the stores area. Following this meeting ,. certain letters were issued to the Grievor by Mr. Downing and by George Simpson, the Superintendant of the Institution. A grievance against these letters was - subsequentiy withdrawn by the Union based on assurances by the Employer that the letters were non-disciplinary in nature. The events which g~ve rise to the grievance in issue r occurred on the morning of January 12, 1993 at which time Mr. Downing attended in the stores area to obtain certain materials he had ordered previously. In the presence of another Storeskeeper and an inmate, Mr. Downing twice greeted the Grievor who did not return the greeting or respond in any way. Instead, / the Grievor proceeded to the loading dock where he was again approached by Mr. Downing. There was then some dispute between the Grievor and Mr. Downing as to whether Mr. Downing extended a further greeting and asked whether the Grievor could hear him or whether he also made certain inquiries, which included aSking /' ",. t'!!'! I 2 \ what was wrong and questioning the Grievor as to why he would not acknowledge him. At one point, Mr. Downing also asked the Grievor to stop by his office later in the morning. In any ,I. event, the Grievor made no response to any of the remarks made by Mr. Downing. Before leaving the loading dock, Mr. Downing advised the Grievor that he considered his conduct to be \ insubordinate and that he was suspended for the balance of his r shift. Mr. Downing instructed the Grievor to prepare a report to account ~or his actions that morning. In his report, the Grievor indicated that because of the earlier exchange with Mr. Downing concerning the use of supply carts, he felt that it was best to remain silent and, therefore, avoid any further difficulty. - Subsequently, on January 15, 1993, the Employer issued ~ letter of reprimand to the Grievor as a result of his conduct on the morning of January 12th. There is no doubt that the Grievor was discourteous I toward Mr. Downing. In my view, however, the failure to return a greeting, even in the presence of another employee and an inmate, does not constitute a sufficient affront to authority so as to warrant the imposition of discipline. Moreover, although Mr. Downing's statement indicates that he made a number of inquiries of the Grievor on the loading dock, this was disputed by the Grievor and, in the absence of oral evidence, there is no basis for prefering the statement of one over that of the other. I note that it does not appear that anyone else was in a positio~ <......... ~ .l". ( 3 to hear the what was said on the loading dock. I als0 note that, even on Mr. Downing's version, none of the inquiries pertained to the Grievor's job duties, nor does the evidence indicate thatrthe Grievor refused to obey a direct order. In this regard, even if the request that the Grievor attend at Mr. Downing's office could be construed as an order, that order was not to ,be complied with until later in the morning. The order, therefore, had not been . <:. 1 disobeyed when the Grievor was suspended for the balance of his shift. In the result, I find that the Grievor's conduct, while discourteous, cannot be character~zed as insubordinate. The grievance is, therefore, allowed and reference both- to the suspension with pay and to the written reprimand shall be removed from the Grievor's file. r shall remain seised for purposes of implementation of this award. DATED AT TORONTO, this 16th day of September, 1993. 'f~'1. \.\ ~L vice Chairperson ! I -