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HomeMy WebLinkAbout1994-0864ROSE95_08_28 (1NT ARlO EMPl (lYES DE LA lOURONNE -, ('F!nWN EMPLOYEES DE L ON T ARlO -y., 1111 GRIEVANCE CpMMISSION DE '\ c, \ 't I \ 1 ~ SETTLEMENT REGLEMENT . ",\ \\ BOARD DES GRIEFS 180 DUNDAS STREET WEST SUITE 2100 TORONTO ONTARIO MSG lZ8 TELEPHONE/TELEPHONE (416) 326-1388 180 RUE DUNDAS OUEST BUREAU 2100 TORONTO (ONTARIO) MSG lZ8 FACSIMILE /TELECOPIE (416) 326-1396 ~-~ -. d . , ..", -, fi~D GSB # 864/94 REr~EI~t p ,,~ ' ,. 'tff~' '-V" ''''',.., .a' ... ' . ,. OPSEU # 94D898 AUG 2 9 1995 I 1.:" IN THE MATTER OF AN ARBITRATION rUtH...!I \....;- ,,(\ jiLt'" \".,/'.0.-) fI . ... \ APPEAl 80ARn~ Under I \0- ____ \---- _..._~~.<_...,....,---. THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN OPSEU (Rose) Grievor - and - The Crown in Right of Ontario (Ministry of Community & Social Services) Employer BEFORE N Backhouse Vice-Chairperson FOR THE G Adams GRIEVOR Grievance Officer ontario Public Service Employees Union FOR THE P Wiley EMPLOYER Deputy Director Legal services Branch Ministry of community & Social Services HEARING April 12, 1995 May 23, 24, 1995 July 20, 21, 1995 - ~ - ,/ 4 Thc Gflevor contravened ",ectlon 7 of the MITlI:-.try... Standard... of ConduLt On or ahout M a fC h 22 I Y94 and May 25 IY94, the Gnevor addresscd the parcnt, OM, of c\tcnt NM In an Inappropnate and dlsrc:-.pcctful manncr Thc Background The Gnevor began workmg for the Employer a~ a ProbatIOn Officer 1 on January, 1992 The Gnevor's first supervIsor was Mark Trumpour at the 194 Gerrard Street office, and then for a short whIle, at the Scarborough office when the two offices were consolIdated Mr Trumpour was 1I1volved 111 the ImtIal hInng of the Gnevor who left a classIfied posItIOn at ThIstletown, for the opportumty to take a SIX month contract as a ProbatIOn Officer Mr Trumpour found the Gnevor to be a good employee and was unable to dIscern any negatIve effect on the Gnevor's work as a ProbatIOn Officer from hIS part-tIme work at EMYS about which the superVIsor subsequently learned On December 14, 1993, Mr Trumpour dId a very posItIve Job evaluatIOn on the Gnevor for the penod January, 1992 to November 1993 In November, 1993 Pamela Carlaw became the Gnevor's superVIsor In January, 1994, Ms Carlaw felt comfortable recommendmg that the Gnevor be promoted to a ProbatIOn Officer 2 In Apn1, 1994, the Gnevor's contract was renewed for SIX months to September 30, 1994 The ClIent N.M. Around the end of January, 1994, the clIent N M was transferred to the Gnevor On February 3, 1994, a letter was sent to the Gnevor by the ChIldren's AId SocIety's ("C A S") SOCial worker and co-sIgned by the work.er's superVIsor NM and hIS famIly had been mvolved wIth the CAS for some tIme The letter expressed the VIew that N M was at hIgh nsk The letter was filed and not brought to Pamela Carlaw's attentIOn On March 18, 1994, the Gnevor Signed N M 1I1to the Toronto Boys Home ("TBH") On March 19, 1994, while the Gnevor was vIsltmg N M , NM threatened SUIcIde and was certified for seventy-two hours at Whitby Psychlatnc HospItal By March 21,1994, NM was returned to the TBH On March 22 1994 NM went A WOL On March 24 1994, N M reported to - 5 - Su~pcn~lOn and DI~d1arge On May 27, 1994, the Gncvor wa" advI\cd that he was suspended wIth pay pending an investIgatIOn duc to a complaint from the publIc The Gnevor was advI<;cd to and dId attend a mcetIng at the Employer's preml<.;e<.; on June 23, 1994 The Gnevor had lIIlIon representatIOn He was advI<.;ed that thIS was a pre-dIscIplInary heanng the purpose of which was to Inform him of the investIgatIOn's findings to date and gIve hIm an opportulllty to respond pnor to a dISCIplinary deCISIOn beIng made Seventeen allegatIOns were read to hIm He requested a copy of the allegatIOns and an opportu 111 ty to refer to hIS datebook, hIS notes and refresh hIS memory The meetmg was scheduled to reconvene on June 29, 1994 However, the Gnevor dId not attend that meetIng because the Employer refused to proVIde a copy of the allegatIOns to hIm The meetmg proceeded on June 29, 1994 WIthout any response to the allegatIOns from the Gnevor WhiCh resulted m hIS discharge on July 8, 1994 The Gnevor's EVidence re the AllegatIOns about N.M. The Gnevor's eVIdence was that the CAS and not he was N M 's placement agent at the TBH m March, 1994, although he acknowledged attendmg at the TBH on that date because the CAS had not signed N M m and a SIgnature was requIred He testIfied that there was nothmg III the February 3, 1994 letter from the CAS to back up the OpInIOn expressed thereIll that N M was a hIgh nsk clIent. He stated that he relted III part on the socIal worker at WhItby Psychlatnc HospItal In concludIng that N M was not a hIgh nsk clIent. He testIfied that N M dId not meet any of the llldlcla of rIsks set out In the Employer's ProbatIOn Officer OnentatIOn Handbook In lIght of N M 's long term mvolvement WIth the TBH, and the unal11mous agreement of everyone present m court on Apnl 29, 1994, the Gnevor felt confident III plaCIng N M at the TBB Without first dISCUSSIng It WIth Pamela Carlaw He felt the chOice was an ObVIOUS and appropnate one, gIven TBH's prevIOUS Involvement WIth N M and theIr wIllIngness to have hIm He was aware that the cost of a bed at the TBH was pre-paId by the Employer and dId not reqUIre a further fundmg allocatIOn WIth respect to the delay In Issumg the warrant after NM went A WOL on May I, 1994, the Gnevor testIfied that he learned of N M 's AWOL on May 3 1994 He stated that there was a dIscretIOnary five-day - 7 - However a\ a re \ ult of a Lomplal nt agall1"t one probation officer made by other probation offlcer\ the office proL edure became more formal around the fall of 1992 ProbatIOn officer" were required after that time to \Ign 10 their whereabouts so that they were reachable 10 the event of an emergency For the sake of falrnes,>, trackmg of probatIOn orfI<..ers began 10 ..,1 tuatlOns where employees sought permIssIOn to leave C~lrly , work at home, etc A wntten Workmg At Home Polley, was adopted at thIS tIme Both Mark Trumpour and Pamela Carlaw testIfied that there was no problem WIth employees workmg part-time elsewhere prOVIded that It was on the employee's own time and there was no conflIct WIth the Employer's clIents Ms Carlaw testified that If an employee had asked If he or she could work at another agency where there was an overlap m hours WIth the Employer, Ms Carlaw would determme If fleXIbIlIty could be bUIlt mto the employee's schedule However, any tIme allowed off would have to be paId back wIthm the same week. The June 8, 1994 MOVIe InCIdent In October, 1992, Mark Trumpour was mformed that the Gnevor and RIck Owens, another probatIOn officer, had gone to a mOVIe together on June 8 1992, dunng office hours When Mark Trumpour confronted the Gnevor WIth thIS m October, 1992, the Gnevor demed domg thIS Mr Owens admItted It and receIved a letter of counsellmg on hIS file Mr Trumpour accepted the Gnevor's response and no further steps were taken agamst hIm at that time After the mvestlgatIOn was commenced agamst the Gnevor m May, 1994, culmmatmg m hIS dIscharge, It came to lIght that he had admItted to another superVIsor that he had gone to a mOVIe dunng working hours WIth RIck Owens RIck Owens confirmed thIS III hIS testImony The Gnevor's testimony on thIS pOInt was that he went to a mOVIe on July 18, 1992 and not June 8, 1992 WIth Mr Owens, on whIch latter date he took a one-half comp day He produced hIS attendance record for July 18, 1992 to corroborate hIS havmg done thIS - 9 - FaIlure of Competence, Failure to Comply wIth DIrectIOn The Employer has set forth In wntIng Issues that reqUire a probatIOn officer to consult WIth or obtain the approval of hIS or her superVIsor They Include dIfficult or complex cases What would come WIthIn the defimtIOn of a dIfficult or complex case IS not spelled out Regardless of the Gnevor's own assessment of N M, there was enough mdependent eVIdence of N M 's hIgh nsk nature, (the opmIOn of the CAS, the Involuntary certIficatIOn to Whitby Psychlatnc HospItal) that it would have been prudent for the Gnevor to have consulted WIth hIS superVIsor ThIS was a Judgment call, however, and was an error whIch may have been correctable through subsequent superVIsIOn ThIS was not somethIng for whIch dISCIplIne was appropnate, m my VIew The Gnevor had a clear oblIgatIOn to consult with and obtam the approval of hIS superVIsor to the placement of N M WhICh he failed to do On May 10, 1994, the Grievor was adVIsed by hIS superVIsor to Issue a warrant for N M 's arrest. The Gnevor should have done so ImmedIately There IS no satIsfactory explanatIOn for hIS not havmg Issued the warrant by May 19, 1994 when Pamela Carlaw and he met for regular superVIsIOn By thIS pOInt, N M, who was fifteen years of age, had been A WOL for nIneteen days The ultimate responsIbIlIty for N M lay WIth the Gnevor's superVIsor who had not been kept Informed of N M 's SItuatIOn Had anythIng happened to or by N M dunng the penod he was at large, It would have been Pamela Carlaw and her supenors who were blamed for a faIlure to superVIse and to ensure that set procedures were adhered to Havmg saId that, the Gnevor's conduct falls short of msubordmatIOn or a faIlure to follow orders On May 19, 1994 when Pamela Carlaw dIrected the gnevor to Issue a warrant, he dId so that day The Umon relIes upon the cases of GSB FIle No 1656/90 0 P S E U (Grummett) and The Crown In RIght of Ontano (VIce-ChaIr Keller) released June 27, 1991 and Kmght V IndIans Head School DIVISIOn. No. 19, 30 C C E L, a deciSIOn of the Supreme Court of Canada rendered on March 29, 1990 In ItS submISSIOn that the Gnevor's dIscharge should be set aSIde for faIlure of the Employer to follow procedural faIrness The Umon submIts that the Employer's faIlure to prOVIde a copy of the inVestIgatIOn findmgs - I () - to tilL ( ,n l \ 0 r " IHI t Il ll1 pro V IlIL an opportunity to Il I III to rl<.,pond ...hould rl...ult III till dl"'Lhar~L hlln~ ...et :hlde In my view the r:m p I 0 yc r ...tlOuld have provIded a LOPy of the allegatIon... to the ('r1evor partleu larly given the numher of them and gIven hIm an opportunity to c(w...lder the ...ame and rc...pond It I... under'itandahle that he wa... unwIlIJng to rC'ipond to allegatIOn,> read out to hIm However, the Employer\ faIlure to do so In thIS ca'ie IS not ...ufficlent rea<;on on Its own to <;et a<;lde the dIscharge Rather, It IS necc~"ary to conSIder what the appropnate penalty IS for the allegatIOns whIch have heen proved III thIS heaflng In the July 8, 1994 letter dISmISSIng the Gnevor for cause, four grounds are set forth whIch were not relted upon by the Employer at the heanng I have held that the allegatIOn that the Gnevor attended a mo" Ie dunng work1l1g hours was too old to be reVIved I have further held that hIS faIlure to 1I1form and consult hIS Employer regard1l1g N M was an error 111 Judgment and not someth1l1g for whIch he should have been dISCIplIned The Employer has establtshed on a balance of probabIlitIes that the Gnevor faIled to consult wIth and obtam the approval of hIS superVIsor to the placement of N M 111 March and Apnl, 1994 and was neglIgent 111 not Issumg a warrant for N M 's arrest after bemg adVIsed by hIS superVIsor to do so The Employer has further establIshed that the GrIevor faIled to mfaI'm hIS superVIsors of hIS part-tIme work at EMYS and hIS need for a fleXIble schedule to accommodate the overlap m hours Under the CIrcumstances, the dIscharge should be set aSIde and be subsl1tuted wIth a one month suspensIOn wIthout pay The Gnevor should be paId for the remammg perIod of hIS contract wIth mterest I shall rema1l1ed seIzed wIth respect to any Issues whIch may anse 111 the ImplementatIOn of thIS award Dated at Toronto thIS 28 day of August , 1995 ~ NANCY BACKHOUSE VICE-CHAIR