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HomeMy WebLinkAbout1996-2690.Ross.03-04-24 Decision Crown Employees Commission de ~~ Grievance Settlement reglement des griefs Board des employes de la Couronne ~-,... Suite 600 Bureau 600 Ontario 180 Dundas Sl. West 180 rue Dundas Ouest Toronto Ontario M5G 1Z8 Toronto (Ontario) M5G 1Z8 Tel. (416) 326-1388 Tel. (416) 326-1388 Fax (416) 326-1396 Telec. (416) 326-1396 GSB# 2690/96 1543/01 UNION# 97D318 97D319 97D320 02A1l2 02A1l3 02A1l4 02A1l5 02A1l6 02A1l7 02A1l8 02A1l9 02A120 02A121 02A122 02A123 02A124 02A125 02A126 02A127 02A128 02A129 02Al30 02Al31 02Al32 02Al33 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN Ontano PublIc ServIce Employees Umon (Ross) Grievor - and - The Crown III RIght of Ontano (Mimstry of the SOlICItor General and CorrectIOnal ServIces) Employer BEFORE Bram HerlIch Vice-Chair FOR THE UNION John BrewIll Ryder Wnght Blair & Doyle BarrIsters and SOlICItorS FOR THE EMPLOYER Chnstopher Jodhan Counsel Management Board Secretanat HEARING Apnl 9 2003 2 DECISION Heanng m these matters contmued on Apnl 9 2003 at whIch tIme the partIes argued a further prelImmary Issue whIch had been deferred from the last day ofheanng (see the decIsIOn dated Apnl 2, 2003 m these matters) The employer has IdentIfied 6 of the 28 gnevances ImtIally referred to me as the subject of the mstant prelImmary ObjectIOn. Each of these gnevances claims unjust and unfair dIscIplIne has been Imposed on the gnevor In each of these cases the employer asserts that no dIscIplIne whatsoever has been Imposed. And smce the assertIOn of dIscIplIne IS the very foundatIOn of each of the gnevances, the employer asserts that If no dISCIplIne has been Imposed, there IS no basIs upon whIch the gnevances can proceed and they ought therefore to be dIsmIssed at thIS early stage For ItS part, m response to the employer's motIOn, the umon asserts that each of the Impugned employer ImtIatIves do constItute dIscIplInary actIOn. At a mImmum, the umon asks that I defer rulIng on the employer's motIOn untIl the conclusIOn of the proceedmgs In relatIOn to thIS latter pomt, I note that the argument of thIS prelImmary motIOn was made solely on the basIs of the gnevance documents and the correspondmg wntten documents complamed ofm the gnevance (where applIcable) Apart from some very basIc undIsputed facts formmg the outlIne of these proceedmgs, no VIva voce or other eVIdence was consIdered. DespIte theIr ObVIOUS dIsagreement about the dISposItIOn of the employer motIOn, there was no real dIspute between the partIes as to the legal framework wIthm whIch the Issue IS to be decIded. I was referred to the case of Superior-Greenstone District School Board [2000] O.L.A.A. No 335 (Swan) as well as to numerous decIsIOns of thIS Board Bacchus, 0911/88 (Watters) Fitzgerald, 1489/88 (Samuels) and Black 885/90 (DIssanayake) It IS not necessary for me to reVIew the case law m elaborate detaIl It IS sufficIent for our current purposes to adopt a number of observatIOns whIch emerge from these cases and whIch the partIes dId not dIspute 3 CntIcal to any effort to dIStIngUISh dIscIplInary from non-dIscIplInary ImtIatIves wIll be an assessment of purpose and effect. PumtIve and/or rehabIlItatIve Impacts are undoubtedly the hallmark of dIscIplIne However from that perspectIve, whIle the employer's expressed Intent wIll be Important to any ultImate conclusIOn, It wIll not always be determInatIve The employer's declaratIOn, for example, that a partIcular letter IS not and was not Intended to be dIscIplInary and wIll not be relIed upon In any future proceedIng may In many cases, be sufficIent to dIspose of the matter Where, however such a proclamatIOn IS less than consIstent WIth an ObjectIve VIew of the contents of the document In questIOn (e g. where the Impugned document contaInS a lItany of complaInts relatIng to culpable behavIOur - see the decIsIOn In Blake 313/82 (Kennedy) dIscussed In Bacchus) It wIll not prevent a conclusIOn that the actIOn was dIscIplInary In nature The cases (certaInly those at thIS Board) tYPIcally Involve determInIng whether a partIcular wntten commumcatIOn IS dIscIplInary or merely an exerCIse In "counsellIng" Other cases (such as Superior-Greenstone) may Involve an assessment of whether a change In work assIgnment can, In appropnate cIrcumstances, be construed as a dIscIplInary response None of the cases referred to deals wIth the specIfic Issue of whether a suspensIOn yt,ith pay can be construed as a dIscIplInary response Three of the gnevances whIch are subject to the Instant motIOn Involve complaInts about the ImposItIOn or extensIOn of a suspenSIOn wIth pay Employer counsel conceded, nghtly In my VIew that the mere fact that a suspenSIOn IS Imposed wIth pay IS not sufficIent to thereby Irrevocably fix ItS status as non-dIscIplInary EssentIally however the employer asserts that the suspensIOn(s) In questIOn were admInIstratIve In nature Imposed pursuant to the terms of sectIOn 22( 1) of the Public Service Act In order to facIlItate an InVestIgatIOn. The InVestIgatIOn ultImately resulted In the ImposItIOn of a suspenSIOn wIthout pay whIch was undoubtedly dIscIplInary (and whIch gave nse to one of the other gnevances before me - one to whIch the Instant motIOn does not apply) I also take the opportumty to note that not only dId the employer proclaim that none of the acts complaIned of were dIscIplInary and that they would not be relIed upon to support any subsequent dIscIplIne It also specIfically agreed that If the umon IS successful In the gnevance regardIng the suspenSIOn wIthout pay (whIch all agree IS a dIscIplInary matter) then all correspondence whIch relates to that suspenSIOn (and whIch Includes all of the correspondence subsumed In the gnevances whIch are subject to thIS motIOn) wIll be removed from the gnevor's file 4 But whIle some of the dIVIdIng lInes between dIscIplInary and non-dIscIplInary responses may occasIOnally be less than clear no perplexIng complexIty anses In thIS case The SIX gnevances In questIOn fall Into two categones And the dIVIdIng lIne between these two categones resIdes In the extent to whIch any arguable grounds can be advanced to support the conclusIOn that the Impugned employer conduct was dIscIplInary In nature In the first category of cases there IS lIttle support for the conclusIOn that any dIscIplIne has been Imposed, In the second there IS none In the first set of gnevances (three In number) It IS the ImposItIOn or extensIOn of a suspenSIOn wIth pay whIch gIves nse to the gnevances And whIle the employer's assertIOns about the non- dIscIplInary nature of the suspenSIOn may well be borne out by the eVIdence I am unable on the basIs of only the gnevance documents and Impugned letters to confidently arnve at any ultImate conclusIOn about whether or not these were dIscIplInary measures I prefer to make that determInatIOn on the basIs of all of the eVIdence Thus, I am unable to grant the employer's motIOn In respect of these three gnevances and, Instead, defer consIderatIOn of the Issue untIl the conclusIOn of the proceedIngs The gnevances (also three In number) In the second category under consIderatIOn share one sIgmficant charactenstIc On the basIs of the gnevance documents and the letters asserted to be dIscIplInary In each case I am sImply and utterly unable to see any basIs whatsoever for any conclusIOn that the letters amount to the ImposItIOn of dIscIplIne NeIther am I of the VIew that any elaborate dIscussIOn or analYSIS IS reqUIred to IllumInate my conclusIOn. The documents speak for themselves Each of these three gnevances IS dated September 4 2001 Gnevance No 02A123 (found at Tab 12 of the Book of Gnevances) complaIns that the contents ofa letter dated July 13 2001 wntten by the Supenntendent of the facIlIty and addressed to the gnevor constItutes unjust and unfair dIscIplIne The text of the letter reads On Thursday July 12,2001 InformatIOn was receIved by Semor AdmInIstratIOn that a possIble attempt to smuggle tobacco products Into the InstItutIOn would/could take place on that day AddItIOnally reported InformatIOn led to appear that If such an attempt was made a staff member you, would make that attempt. FolloWIng a search of the work area 5 under your control such tobacco products were found secreted m vanous places wlthm that work area. GIven that dIscIplInary actIOn may occur as a result of thIS meetmg you may attend wIth a representatIve who may partIcIpate on your behalf Should you fall to attend, the meetmg wIll proceed m your absence and you wIll be advIsed of my decIsIOn m thIS matter WhIle It does refer to the possIbIlIty of future dIscIplInary actIOn (and such was ultImately Imposed and gneved), there IS nothmg m thIS letter whIch supports any possIble conclusIOn that It, m and of Itself, amounts to the ImposItIOn of any dIscIplIne Gnevance No 02A124 (found at Tab 13 of the Book of Gnevances) complams that the contents of a letter dated July 25 2001 wntten by Morns Zbar Deputy Mimster and addressed to the gnevor constItutes unjust and unfair dIscIplIne The text of the letter reads ThIS wIll acknowledge receIpt, VIa facsImIle, of your two letters and attachments dated July 13 and your letter of July 19 2001 I have provIded copIes of your correspondence to Mr lam Lelthead, RegIOnal DIrector Adult InstItutIOnal ServIces, Central RegIOn, and have asked hIm to follow up on the concerns you expressed. Thank you for bnngmg thIS matter to my attentIOn. There IS sImply nothmg m thIS letter whIch supports any possible conclusIOn that It amounts to the ImposItIOn of any dIscIplIne Gnevance No 02A132 (found at Tab 21 Of the Book of Gnevances) complams that the contents of a letter dated August 27 2001 wntten by John F Rabeau, AssIstant Deputy Mimster Adult InstItutIOnal ServIces and addressed to the gnevor constItutes unjust and unfair dIscIplIne The text of the letter reads Your letter of July 27 2001 addressed to Mr Morns Zbar Deputy Mimster of CorrectIOnal ServIces, regardmg your suspenSIOn from dutIes, has been referred to me for reply 6 I note that you have been suspended from duty wIthout pay for 20 days, for the penod from August 10 2001 to September 6 2001 wIth a return to dutIes on September 7 2001 You have not been dIsmIssed from employment, as you suggest In your letter DetaIled InfOrmatIOn wIth respect your suspensIOn from duty was provIded to you In a letter dated August 9 2001 from Mr Carl DeGrandIs, Supenntendent, Toronto JaIl Your ObjectIOn to your not beIng able to bnng a non-OPSEU representatIve WIth you to your meetIng wIth the supenntendent has been noted. WhIle I apprecIate that you may have concerns wIth respect to the abIlItIes of the InstItutIOn's local OPSEU representatIve I understand that you were gIven sufficIent tIme and opportumty to obtaIn appropnate OPSEU representatIOn from outsIde the InstItutIOn. I am, therefore, satIsfied that you were represented In accordance wIth the provIsIOns of the collectIve bargaInIng agreement. There IS sImply nothIng In thIS letter whIch supports any possible conclusIOn that It amounts to the ImposItIOn of any dIscIplIne In short, I am persuaded that the employer's motIOn ought to prevaIl In respect of the three gnevances Just consIdered. I am satIsfied that the gnevances and, more specIfically the letters to whIch they refer sImply fall to establIsh any arguable basIs for any conclusIOn that dIscIplIne was Imposed on the gnevor through those documents The gnevances are all predIcated upon the assertIOn of Inappropnate dIscIplIne No dIscIplIne was Imposed. There IS therefore no basIs upon whIch these gnevances can proceed. They must therefore be and hereby are dIsmIssed. In summary I have deferred consIderatIOn of the employer's motIOn In respect of the three gnevances related to the ImposItIOn or extensIOn of a suspenSIOn wIth pay and consequently the employer's motIOn In respect of those gnevances IS, at least untIl all of the relevant eVIdence IS before me, dIsmIssed. I have however granted the employer's motIOn In respect of Gnevances Nos 02A123 02A124 and 02A132 and these gnevances have been dIsmIssed. 7 Heanng m thIS matter wIll contmue as prevIOusly scheduled on May 5 2003 Dated at Toronto thIS 24th day of Apnl2003 ~ ~)'L~~~~l: _. , ... .. r~ . :.. I ... .. .:" Bram Herhch, Vice-Chairperson