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HomeMy WebLinkAbout2003-3597.Beltrano et al.06-05-23 Decision Crown Employees Commission de Nj 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# 2003-3597 2003-3600 2003-3603 2003-3604 UNION# 2004-0135-0001 2004-0135-0002,2004-0135-0005 2004-0135-0006 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN Ontano PublIc ServIce Employees Umon (Beltrano et al ) Union - and - The Crown In RIght of Ontano (Mimstry ofCommumty Safety and CorrectIOnal ServIces) Employer BEFORE Ken Petryshen Vice-Chair FOR THE UNION Ed Holmes Ryder Wnght Blair & Holmes LLP BarrIsters and SOlICItorS FOR THE EMPLOYER Sunee1 Bahal Counsel Mimstry of Government ServIces HEARING May 3 2006 2 DeCISIon In gnevances dated January 27 2004 Mr K. Beltrano Mr J Noseworthy Mr DOrton and Mr D Fredencks claim that they were dIscharged wIthout Just cause The gnevors are CorrectIOnal Officers who had been employed at the Windsor JaIl Although the Employer relIes on a number of grounds to support the dIscharge of each gnevor the pnmary ground IS that they used force on an Inmate that was unJustIfied and exceSSIve The gnevors deny the Employer's allegatIOns concermng the use of force The gnevances were consolIdated and are beIng heard together On May 3 2006 at the conclusIOn of the Employer's case whIch reqUIred 26 days of heanng In Windsor the Umon made what It charactenzed as a motIOn for non-sUIt In connectIOn wIth the gnevance filed by Mr Fredencks Counsel for the Umon argued that the Employer dId not call any eVIdence that could support the dIscharge ofMr Fredencks and requested that I dIrect the Employer to reInstate Mr Fredencks forthwIth. If thIS motIOn succeeds, the partIes agreed that I should refer any remedIal Issues back to them They also agreed that the matter would come back to me If they were unable to settle any of the remedIal Issues connected wIth Mr Fredenck's reInstatement. ConsIstent WIth the practIce at the Gnevance Settlement Board, counsel for the Employer advIsed that the Employer would not reqUIre the Umon to make an electIOn as to whether It would call eVIdence as a condItIOn of proceedIng wIth the motIOn. In ItS dIscharge letter of January 27 2004 the Employer claims that Mr Fredencks engaged In the folloWIng conduct 1) That on, Tuesday March 11 2003 you used force that was unJustIfied whIle escortIng Inmate Horan down the stairs to segregatIOn by pullIng and pushIng hIm 3 and thIS IS a breach of#l) Mimstry PolIcy ADI 04-20-01 Secunty Use of Force, Page 1 #2) the Windsor JaIl StandIng Orders, SectIOn 3 Control/Secuntyand OperatIOns, Page (52) and #3) ADI 02-13-01 Conduct and DIscIplIne Page (2) (L) 2) That on, Tuesday March 22, 2003 you used force that was unJustIfied and exceSSIve by stnkIng Inmate Horan multIple tImes whIle he was restraIned on the first floor and thIS IS a breach of#l) Mimstry PolIcy ADI-02-13-02, Staff Conduct and DIscIplIne, Page (2) #2) ADI-04-20-01 Secunty Use of Force, Page (1) # 3) Windsor JaIl StandIng Orders, SectIOn 3 Control/Secunty and OperatIOns, Page(52) 3) That on, Tuesday March 11 2003 you faIled to submIt an Occurrence Report concernIng the IncIdent wIth Inmate Horan on Tuesday March 11 2003 that detaIled the nature of the threat posed by thIS Inmate as well as all of the CIrcumstances of the IncIdent and thIS IS a breach of#l) Mimstry PolIcy ADI-OI-07-01 Occurrence Reports #2) ADI-02-13-01 Staff Conduct and DIscIplIne #3) ADI-04-20-01 Secunty Use of Force, Page (1) #4) Windsor JaIl StandIng Orders, SectIOn 3 Control/Secunty and OperatIOn, Page (52) The pnncIples that apply to the determInatIOn of a non-sUIt motIOn were not In dIspute The standard to be applIed In aSseSSIng the eVIdence IS lower than the standard of the balance of probabIlItIes In determInIng whether a prima facie case has been made out, the arbItrator has to determIne whether there IS some eVIdence to support the claim The arbItrator IS not to assess the qualIty or credIbIlIty of the eVIdence or what weIght the eVIdence deserves The facts are to be Interpreted In a manner most favourable to the party agaInst whom the motIOn IS made For example, where a wItness provIdes dIfferent verSIOns of an event, the verSIOn that IS favourable to the party agaInst whom the motIOn IS made takes precedence I agree wIth counsel for the Employer's submIssIOn that an arbItrator IS oblIged to consIder documentary eVIdence when aSseSSIng whether there IS some eVIdence to support the Employer's claim Dunng the submIssIOns, I was referred to the folloWIng decIsIOns Re OPSEU (Dhanju) and Ministry of Municipal Affairs and Housing GSB 2004-1101 (DIssanayake) Re OPSEU (Sager Shelleyet al) andMinistry of Transportation GSB 2000-0377 (Mikus) Re OPSEU (Watkin) andMinistry of Health GSB902-89(Samuels),RePelleCo andUS.WA. Lac 6457(1994) 39L.A.C (4th) 370 (Kennedy), Re University of Western Ontario and C UP.E Local 2361 (1990), 15 L A.C 4 (4th) 189 (DIssanayake) and OPSEU (Faler) and Ministry of Correctional Services GSB 218/89 (Fisher) The Issue for determInatIOn on thIS motIOn IS whether the Employer has made out a prima facie case concermng the dIscharge ofMr Fredencks Put another way the Issue IS whether there IS some eVIdence to support the Employer's claim agaInst Mr Fredencks After consIdenng the oral and documentary eVIdence adduced dunng the Employer's case, the submIssIOns of counsel and the relevant pnncIples, It IS my conclusIOn that the Umon's non-sUIt motIOn must fall and It IS hereby dIsmIssed. In accordance wIth the agreement of the partIes and the GSB's practIce, I wIll not provIde reasons for that conclusIOn. Dated at Toronto thIS 23rd day of May 2006