Loading...
HomeMy WebLinkAbout1994-1064BRUCE95_12_04 ONTARIO EMPLOYES DE LA COURONNE CROWN EMPLOYEES DEL'ONTARIO GRIEVANCE COMMISSION DE . 1111 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 ITELECOPIE (416) 326-1396 GSB # 1064/94 OPSEU # 94E182 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN OPSEU (Bruce) Grievor - and - The Crown in Right of Ontario (Ministry of Correctional Services) Employer BEFORE S stewart Vice-Chairperson M Khalid Member F Collict Member FOR THE M Bevan GRIEVOR Grievance Officer ontario Public Service Employees Union FOR THE A Gulbinski EMPLOYER Senior Grievance Administration Officer Ministry of the Solicitor General & Correctional Services HEARING January 10, 1995 May 5, 1995 July 4, 1995 DECISION In a grievance dated May 5, 1994, Mr. D. Bruce claims that a three day suspension imposed on him by letter dated April 6, 1994, was without just clause. The letter of April 6, 1994, which was signed by Mr D Carroll, Deputy Superintendent, indicates that the basis for the discipline was that on February 18, 1994 Mr Bruce used a Ministry vehicle for an unauthorized purpose, drove a Ministry vehicle to an unauthorized place and provided false information in a report Mr. Bruce commenced emploYment with the Ministry of Correctional Services in February, 1985 He was initially employed at the Toronto East Detention Centre In July 1991, he moved to Maplehurst Detention Centre following his success in a competition. In August, 1993, an inmate at the institution accused Mr. Bruce of assaulting him Mr Bruce was transferred to the adjoining correctional centre were he was assigned duties as a driver pending resolution of criminal charges arising from the alleged assault This transfer is the subject of a separate grievance dealt with by this panel in a seperate decision Mr Bruce was ultimately acquitted of the criminal charges and was transferred back to his original position Mr Bruce testified, and he was uncontradicted in this regard, that he received no special training in relation to the duties of institutional driver Mr. P. Franklin, security officer at Maplehurst, testified 2 that at approximately 12 40 P m on February 18, 1994 he received a telephone call from a member of the public wherein he was advised that a driver was sleeping in a Ministry vehicle parked behind a mall. This person was not called to testify The Employer acknowledged that it was unable to offer any evidence in support of an allegation that the grievor was sleeping and did not rely on such an allegation in its decision to suspend Mr Bruce Mr. Franklin testified that he asked Mr. Hudspeth, a supervisor, to accompany him to the mall They travelled to the mall in Mr. Franklin's own vehicle. They saw the Ministry vehicle at the mall and parked there, at which point Mr. Hudspeth left the vehicle and went over to speak to Mr Bruce Mr Hudspeth testified that he approached Mr. Bruce and asked him what he was doing there. Mr Bruce's response was that he was just finishing lunch Mr Hudspeth acknowledged in cross- examination that he did not ask Mr Bruce to show him the wrapping from his lunch or otherwise challenge Mr Bruce's statement that he had been eating his lunch while in the vehicle Mr Hudspeth also acknowledged that he saw nothing to indicate that Mr Bruce was sleeping. Mr Hudspeth testified that he told Mr. Bruce that he had "no business being there" and that he should return to the institution and prepare a report Mr Hudspeth testified that he 3 spoke to Mr Bruce later in the day when Mr Bruce provided him with the report, at which time he told Mr. Bruce that he should not be using the vehicle for his personal use Mr. Hudspeth testified that Mr Bruce told him that he was aware that he was not to use the vehicle for his personal use but that he had been refuelling the vehicle and had stopped off for lunch after doing so. A copy of Mr Bruce's report was not provided to the Board In a report dated March 7, 1994, to Mr Commeford, superintendent, Mr. Franklin indicated that on February 18, 1994, another driver, Mr. J Cameron, told him that Mr Bruce had put fuel in his Ministry vehicle on February 18, 1994 at the same time that he had, between 08:00 and 08 30 Mr Franklin reported that Mr Cameron subsequently confirmed that information. However, in a report dated March 15, 1994, Mr. Cameron indicated only that he saw Mr Bruce's vehicle "pull in to be fuelled" In his evidence before this board Mr Cameron testified that he did not see Mr. Bruce have his vehicle refuelled, just that he had pulled in behind him at the gas pumps at that time Mr. Cameron testified that he assumed that Mr Bruce had pulled in to get fuel because if he had intended to do something else, such as cleaning his windshield, he would have parked away from the pumps and gone to get the necessary equipment for cleaning his windshield Mr. Cameron acknowledged in cross-examination that he was aware of the fact that Mr Bruce did not engage in functions such as pumping his own gas in connection with Ministry 4 vehicles. Mr. Franklin also reported that in an interview with Mr Bruce on March 1, Mr Bruce had confirmed that he had filled the vehicle with fuel between 12 00 and 1 00 p.m. Mr Franklin had reviewed the driver's log prepared by Mr Bruce which, in his view, confirmed that Mr. Bruce had refuelled at that time The notation to the time of 08.30 appears directly next to an entry entitled "local runs" which appears under the heading "purpose /destination" The reference to the refuelling is further along on the same line of the log Mr. Franklin did not ask Mr. Bruce to explain this log entry or how he generally completed his logs Mr. Bruce was asked why the mall location at which he was parked was not directly en route to the institution if in fact he was returning to the institution after refuelling his vehicle The report indicates that Mr Bruce explained that the flow of traffic made it easier to take a slightly longer route back to the institution Mr Hudspeth acknowledged, and it was confirmed by Mr Cameron, that there was no set time at which drivers were to refuel their vehicles Mr Cameron testified that drivers often refuelled in the mornings, but only if they needed gas. It was acknowledged that there was no written policy or rule relating to the use of vehicles for lunch. However, Mr. Cameron had taken his vehicle home for lunch in or around the fall of 1993 and was 5 given a verbal reprimand Mr Hudspeth testified that the matter was raised at a meeting of drivers and the drivers were instructed that the vehicles were not to be utilized for their personal use. However, he was unable to say with certainty that Mr Bruce had attended that meeting Mr. Hudspeth testified that if a driver were on the road it was anticipated that he would eat his lunch in the vehicle However, if an employee were in the vicinity of the institution with a Ministry vehicle at a time at which he wished to take lunch it was expected that he would return to the institution with the Ministry vehicle and use his own vehicle if he wished to leave the institution for lunch It was not necessary for employees to sign out for lunch or to specifically advise a supervisor that the employee was now taking lunch. Mr Bruce acknowledged that he pulled into the gas station on the morning of February 18, 1994, at the time Mr Cameron indicated, but testified that he pulled in to get his windshield cleaned and not to get gas He testified that there was bird excrement on his windshield that he was unable to clean off using his wipers and fluid. Mr. Bruce was asked in cross-examination about the source of the bird excrement and he testified that there are many seagulls in the area where the vehicles are parked at the institution, due to the fact that there are dumpsters with kitchen refuse in that area He attributed an excess of bird excrement on his windshield that day to the vehicle being outside 6 over the weekend However, the day in issue was not a Monday, but was a Friday Mr Bruce testified that he pulled into the pumps in order to have the attendant clean his windshield as he preferred to have someone else perform this kind of function He testified that his recollection was that he did not need gas that morning After completing his morning runs, he did obtain gas at that same station Mr Bruce acknowledged in cross-examination that the morning runs would have entailed only about 14 kilometers When the vehicle was refuelled on February 18, 1994, it was filled with 86 3 litres of gasoline The capacity of the vehicle is 100 litres Mr. Bruce testified that after refuelling at the station he used his windshield fluid and wipers to clean some dirt that had just been sprayed on his windshield and his indicator showed that his windshield fluid was low. He then pulled into the rear of a mall and filled up the reservoir with windshield fluid Mr Bruce acknowledged that replenishing fluids was not something that he ordinarily did himself but testified that he did so in this instance out of necessity Mr. Bruce testified that he had his lunch with him and decided to have lunch at the mall He went into a restaurant to buy a couple of things to eat with his lunch and returned to eat in his vehicle. He denied that he was sleeping. He testified that he ate in the location behind the mall because he wanted privacy He acknowledged that he had eaten lunch in town in similar circumstances and that he had 7 eaten lunch in this location before Mr. Bruce testified that he was not at the meeting that was referred to by Mr Hudspeth in his evidence, where drivers were instructed about personal use of Ministry vehicles However, he testified that he was aware that drivers were not to utilize Ministry vehicles for their personal use Mr Bruce testified that he did not understand the prohibition to include having lunch in the vehicle if lunch time occured when he was performing duties or had just completed duties associated with work Mr Bruce testified that he always made a record of refuelling at the commencement of the log sheet but that the record was not intended to correspond to the time that appeared at the top of the sheet. A number of log sheets prepared by Mr. Bruce which were produced at the hearing show refuelling corresponding with the first entry on Mr Bruce's log sheet. In relation to one log sheet that showed a gas purchase corresponding with a run at 8:00 a.m., Mr. Bruce testified that he would not have purchased gas before commencing the run. His evidence in this regard was not challenged Mr Cameron testified that it was his practice to have the entry relating to gas correspond directly to the time that he purchased the gas However, the log prepared by Mr. Cameron for February 18, 1994 indicates the entry with respect to the purchase of gas is at 10:45 a m. while the evidence of both Mr Cameron and Mr. Bruce 8 indicated that he purchased his gas much earlier that day One further aspect of the evidence which ought to be referred to is that a driver submitted a report dated March 23, 1994, to the superintendent of the institution, advising that a gas attendant had reported that Mr. Bruce had approached him to ask if he could tell his lawyer the "exact time" that he had been in to get gas The report indicated that the attendant had been unable to remember the exact time and had advised Mr Bruce accordingly. In assessing the evidence in connection with this matter we are mindful of the following oft-quoted words of Mr. Justice O'Halloran in Farvna v. Chorny, [1952] 2 D L.R 354 (B C C A ) The credibility of interested witnesses, particularly in cases of conflict of evidence, cannot be gauged solely by the test of whether the personal demeanour of the particular witness carried conviction of the truth The test must reasonably subject his story to an examination of its consistency with the probabilities that surround the currently existing conditions In short, the real test of the truth of the story of a witness in such a case must be its harmony with the preponderance of prob- abilities which a practical and informed person would readily recognize as reasonable in that place and in those conditions It is apparent that if Mr Bruce had refuelled his vehicle in the morning, there would have been no need for him to have refuelled the vehicle in the early afternoon. Accordingly, if we find that Mr Bruce in fact refuelled his vehicle in the morning, he was obviously not engaged in Ministry business at or around 9 the relevant time. Mr. Bruce's explanation for his presence at the gas station in the morning was that he was there to have his windshield cleaned and not to obtain gas While it appears that Mr. Cameron's initial statement suggested otherwise, the testimony of Mr. Cameron did not establish that he actually observed Mr. Bruce getting gas in the morning of February 18, 1994. He was only able to testify to seeing Mr. Bruce pull up to the pumps. We agree with Mr Bevan's submission that the entry by Mr. Bruce in the vehicle log with respect to the purchase of gasoline falls short of establishing in any definitive way that he in fact purchased gasoline in the morning, given the other records that were produced. We also agree with Mr. Bevan that the report indicating that Mr. Bruce had asked the gas attendant if he could advise of the exact time of refuelling could be interpreted as suggesting that Mr Bruce felt that his version of the events in relation to when he purchased gas could be corroborated by the gas attendant. However, it is a piece of evidence that must attract marginal weight, given its hearsay nature. Notwithstanding the foregoing matters, there are aspects of Mr. Bruce's explanation which cause us to question its veracity He testified that he did not need gas in the morning, however he drove only a short distance prior to refilling. It strikes us as higly unlikely that he would have not filled up with gas when he 10 was there at the gas station in the morning. He acknowledged that his duties that morning were not urgent The other aspect of Mr. Bruce's explanation which causes us to question his veracity is his reference to the accumulation of seagull excrement being due to the vehicle being out over the weekend, when in fact the date in issue was a Friday. The conicidence of the location where he had previously eaten lunch strains the credibility of Mr Bruce's explantion that he was at that location, not directly en route to the institution, because of traffic flow His testimony that he had run out of windshield fluid and felt compelled to pullover and refill the reservoir himself, in a location where he had previously eaten lunch, similarly strikes us as a most improbable coincidence, particularly given Mr Bruce's testimony that this kind of vehicle maintenance was not something that he undertook himself On Mr Bruce's own evidence, there was no urgency at that particular time If, in fact, the windshield fluid indicator light went on as Mr Bruce described, we think it most probable that Mr Bruce would have gone to a gas station to have it filled rather than fill it himself In our view, the most likely sequence of events is that Mr. Bruce decided to use the Ministry vehicle to go to this particular location, behind the mall, to have lunch While the Employer did not establish that Mr. Bruce was present when 11 employees were specifically advised about the personal use of Ministry vehicles arising from the circumstances involving Mr Cameron, Mr. Bruce acknowledged that he was aware that personal use of Ministry vehicles was inappropriate. His knowledge that it was inappropriate for him to have been in this location eating lunch is indicated by the fact that he felt it necessary to justify his presence on the basis that he had to pullover there to refill his windshield fluid It is also indicated by the fact that he was parked in a shipping/receiving area behind the mall. We now turn to the issue of the penalty that ought to flow from the foregoing conclusions. Ms Basanta referred us to some decisions where this Board has decided that it ought not to interfere with a disciplinary penalty when it has concluded that the grievor was not frank in his evidence. We have no difficulty with the principle expressed in those decisions, however there are other relevant principles. The first of these is equity As Mr Bevan emphasized, Mr Cameron, a long-term employee, was not formally disciplined in connection with a similar occurence. Mr Bruce acknowledged that he was aware that he was not to use a Ministry vehicle for his personal use and it is difficult to imagine that Mr Cameron would not have been aware of this matter as well. While we agree that Mr. Bruce's lack of frankness differentiates his circumstances from those of Mr Cameron, we are unable to accept that this matter should result in such a discrepancy in discipline. That is particularly so in this case, 12 where Mr. Carroll, the person who imposed the disciplline, indicated that he determined that a penalty of a three day suspension was appropriate on the basis of two days for the conduct and one day for his lack of frankness In accordance with the foregoing conclusions, it is our decision that the penalty of a three day suspension is excessive and that a one day suspension is the appropriate disciplinary penalty. The relevant records are to be amended and Mr Bruce is to be compensated accordingly We remain seized to deal with any difficulties that the parties may experience in the implementation of this award Dated at Toronto, this 4th day of December, 1995 ~~{' S L. stewart, Vice-Chair "I Dis-s-e"ttt" without written reason M Khalid, Member a~ -/ F ColI Member