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HomeMy WebLinkAbout2001-0224.Sammy et al.04-12-17 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# 2001-0224 UNION# 2001-0582-0018 2001-0582-0019 2001-0582-0020 2001-0582-0017 2001-0582-0003 2001-0582-0016 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN Ontano Pubhc ServIce Employees Umon (Sammy et al ) Union - and - The Crown In RIght of Ontano (Mimstry ofCommumty Safety and CorrectIOnal ServIces) Employer BEFORE Dan Hams Vice-Chair FOR THE UNION Ed Holmes Ryder Wnght, Blair & Doyle BarrIsters and SOhCItorS GavIn Leeb BarrIster and SOhCItor FOR THE EMPLOYER DavId Strang ActIng AssocIate DIrector Management Board Secretanat HEARING November 4 2004 2 DeCISIon These matters mvolve gnevances filed by Tim Colhns, Don Cuthbert, Carleton Johnson, Rob MondesIr and Dale Sammy The gnevors were correctIOnal officers who worked at the Toronto East DetentIOn Centre They were suspended and, all but Mr Johnson, subsequently dIscharged from theIr employment for theIr vanous roles III mJunes sustamed by an mmate Cnmmal charges were laid agamst all but Mr Johnson. After an extended tnal, all four were convIcted. The Mimstry now asks that the four dIscharge gnevances be dIsmIssed on the grounds that they are both an abuse of process and fnvolous It says that there IS no remedy that reasonably can be gIven m these matters In large measure, the Mimstry rehes upon ItS mterpretatIOn of the Cnmmal Court's sentencmg Reasons for the proposItIOn that the court took mto account the gnevor's suspensIOns and dIscharge m arnvIllg at the sentence Imposed. The Reasons read m part as follows 3 Mr Corelh, for the Crown, conceded that specIfic deterrence IS not a sIgmficant goal of thIS sentencmg; however he submItted that general deterrence and denuncIatIOn must be strongly emphasIzed. In a nutshell, he argues that the officers were m posItIOns of trust WhICh they breached, and that a strong message must be sent to other persons m sImIlar posItIOns of authonty that such conduct wIll not be tolerated. He rehes partIcularly on s 718 of the Code, WhICh hsts breach of trust as an aggravatmg factor m sentencmg. 4 Defence counsel - Mr Black for Cuthbert, MondesIr and Colhn, and Mr KuzmIcz, for Sammy - submIt that absolute or condItIOnal dIscharges are the appropnate sentences m thIS case, gIven that theIr chents are exemplary cItIzens WIth no cnmmal records, and that Pearson had no senous or lastmg mJunes They argue that each of them has already paid a sIgmficant pnce, havmg endured thIrty-seven months of prosecutIOn, havmg been suspended and fired from theIr Jobs, and havmg suffered famIly trauma and socIal stIgma. Mr Black submIts that although techmcally III posItIOns of trust, correctIOnal officers are not vested wIth the same degree of authonty and pubhc trust as pohce-officers, and thus should not be treated as harshly SpecIfically he argues that they are constantly wIthIll close range of supervIsors and vIdeo cameras, and therefore not III a 3 posItIOn to exerCIse the same degree of power as a pohce officer Breach of trust, he submIts IS therefore not to be overemphasIzed as a goal of sentencIng. 28 Before concludIng, I would hke to reIterate that I have only found that the prIncIples of general deterrence and denuncIatIOn are satIsfied by these sentences because the pnce already paid by all accused has been very hIgh. Hopefully the cOmbInatIOn of thIS suffenng and the sentences wIll send a strong message to all correctIOnal officers that the pubhc Interest reqUIres them to exerCIse theIr power temperately In accordance wIth law and InstItutIOnal pohcy A DNA order wIth respect to each IS mandatory However there wIll be no firearms prohIbItIOn ordered, gIven the absence of pnor IncIdents of vIOlence and the favourable factors found wIth respect to each accused. The Mimstry also rehed upon s 7(4) of the Crown Employees Collective Bargaining Act (hereafter CECBA) s 7 (4) Restrictions on substituted penalties - In subStItutIng a penalty under subsectIOn 48(17) of the Labour Relations Act 1995 the Gnevance Settlement Board shall not provIde for the employment of an employee In a posItIOn that Involves dIrect responsIbIhty for or that provIdes an opportumty for contact wIth resIdents In a facIhty or wIth a chent If the Board has found that the employee, (a) has apphed force to a resIdent In a facIhty or a chent, except the mImmum force necessary for self-defence or the defence of another person or necessary to restraIn the resIdent or chent; or (b) has sexually molested a resIdent or a chent. AccordIngly although the Board would have the authonty to dIrect that the gnevors be returned to work to a posItIOn that does not Illvolve contact wIth Inmates, the Mimstry noted that these gnevors are unclassIfied employees To reInstate them would be to reqUIre that they be accommodated In a completely dIfferent posItIOn than that held when they were dIsmIssed. To do so would reward the gnevors for cnmInal conduct In the workplace Mr Ed Holmes made submIssIOns on behalf ofOPSEU regardIng the gnevances of Messrs Cuthbert, Johnson, MondesIr and Sammy As set out above, Mr Johnson was neIther dIscharged nor prosecuted. AccordIngly neIther of hIS gnevances IS touched by thIS prehmInary apphcatIOn brought by the Mimstry Mr Holmes noted that the suspensIOn gnevances are not affected by 4 the Mimstry's prehmInary apphcatIOn eIther AccordIngly they wIll go ahead In any event. Further although the Court's findIngs are to be taken as conclusIve, the Board must stIll weIgh those findIngs In eXerCISIng ItS dIscretIOn as to whether the penalty should be mItIgated. Mr Holmes submItted that these arguments made on behalf of the Mimstry should be entertaIned at the conclusIOn of the heanng not at the outset. Mr GavIn Leeb made submIssIOns on behalf of OPSEU regardIng the gnevances of Tim Colhns Mr Leeb reJected the notIOn that rehance by the sentencIllgJudge upon Mr Colhns's loss of hIS Job somehow bInds thIS Board. First, these gnevances predate the sentences, were the subJect for pnor Board proceedIngs and were raised at tnal In essence, It IS submItted that It IS not clear form the Reasons of the Court that the sentence Imposed rehed on the loss of Mr Colhns's Job Second, Mr Colhns has the nght to have the Board hear and determIne the possIble remedIal optIOns, IncludIng a return to work under sectIOn 7(6) ofCEBA. (6) Substitute Penalty - In SUbStItutIng a penalty under subsectIOn 48(17) of the Labour Relations Act, 1995 III CIrcumstances In WhIch It IS restncted by subsectIOn (4) the Gnevance Settlement Board may provIde for the employment of the employee In another substantIally eqUIvalent posItIOn. FInally no dIstInctIOn can be drawn between classIfied and unclassIfied employees Just cause IS the standard to be apphed by the Board. To determIne the apphcabIhty of the standard, these matters must be heard. In reply Mr Strang noted that the Just cause standard apphes to unclassIfied employees However It IS appropnate to consIder the possIble remedIes The posItIOn to WhIch these gnevors mIght be reInstated are generally held by employees who need accommodatIOns for medIcal reasons Because reInstatement In these CIrcumstances would amount to a promotIOn, It IS an abuse of process and fnvolous to go through the process 5 Many of the authontIes rehed upon by the partIes pre-date the Supreme Court of Canada's decIsIOn In Toronto (City) v C UP.E. Local 79 [2003] 3 S C.R. 77 Further many of the submIssIOns InVIte me to weIgh and compare the CIrcumstances of those authontIes WIth the CIrcumstances of these matters, as found by the CnmInal Court and laid down In ItS Reasons. In my VIew such consIderatIOn IS more appropnate at the conclusIOn of the case These gnevors have been found by the CnmInal Court to be gUIlty of assaults upon an Inmate The Court has convIcted them for these assaults However the Umon says that there are mItIgatIng factors that speak to the reductIOn of the penalty Imposed, and I should hear that eVIdence ThIS Issue was prevIOusly dealt wIth by the Board In Ministry of Natural Resources and OPSEU (Timmerman) (2004), GSB #2000-0092 (Hams) In part as follows The Employer also rehes on Toronto (City) v C UF.E. Local 79 [2003] 3 S C.R. 77 In partIcular at paragraph 58 In part, as follows In short, there IS nothIng In a case hke the present one that mIhtates agaInst the apphcatIOn of the doctnne of abuse of process to bar the rehtIgatIOn of the gnevor's cnmInal convIctIOn. The arbItrator was reqUIred as a matter of law to gIve full effect of the convIctIOn. As a result of that error of law the arbItrator reached a patently unreasonable conclusIOn. Properly understood In the hght of correct legal prIllcIples, the eVIdence before the arbItrator could only lead hIm to conclude that the CIty of Toronto had estabhshed Just cause for Ohver's dIsmIssal The Umon conceded that the Board IS constraIned by the law as set out above However It submItted that the Board may stIll enqUIre Into whether dIscharge from her employment was the appropnate penalty to Impose upon the gnevor It said that there were many mItIgatIllg factors to put before the Board. Here, there can be no doubt that to InflICt a cnmInal assault agaInst an Inmate IS Just cause for dIscIphne nor can there be any doubt, as a matter oflaw that the fact of the assault IS proven by the findIngs of gUIlt In the CnmInal Court. However the umon may lead eVIdence and make submIssIOns wIth respect to the mItIgatIOn of the penalty as dId the gnevors' counsel at the cnmInal proceedIngs 6 As the Supreme Court dIrected III Toronto (City) and CUPE supra, thIS Board wIll gIve full effect to the convIctIOn. Dated at Toronto thIS 1 ih day of December 2004