HomeMy WebLinkAbout2004-3120.Giraudy et al.07-07-05 Decision
Commission de
Crown Employees
Grievance Settlement
règlement des griefs
Board
des employés de la
Couronne
Suite 600 Bureau 600
180 Dundas St. West 180, rue Dundas Ouest
Toronto, Ontario M5G 1Z8 Toronto (Ontario) M5G 1Z8
Tel. (416) 326-1388 Tél. : (416) 326-1388
Fax (416) 326-1396 Téléc. : (416) 326-1396
GSB# 2004-3120, 2004-3121, 2004-3324, 2004-3865, 2004-3952, 2004-3954
UNION# 2004-0234-0658, 2004-0234-0659, 2004-0234-0694, 2005-0234-0023, 2005-0248-0006,
2005-0248-0008
IN THE MATTER OF AN ARBITRATION
Under
THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT
Before
THE GRIEVANCE SETTLEMENT BOARD
BETWEEN
Ontario Public Service Employees Union
(Giraudyet al.)
Union
- and -
The Crown in Right of Ontario
(Ministry of Community Safety and Correctional Services)
Employer
BEFOREVice-Chair
Ken Petryshen
FOR THE UNION
Gavin Leeb
Barrister and Solicitor
FOR THE EMPLOYER Suneel Bahal
Counsel
Ministry of Government Services
HEARING November 7 & 18, December 2 & 8, 2005;
January 18, February 2 & 3, May 29, June 20,
July 11, 12, 13, 14, 19, 21, August 23,
September 5, October 27, December 4, 7,
11, 2006; February 2 & 9, March 19 and
April 4, 2007.
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Decision
On June 10, 2004, an inmate escaped from a provincial bailiff bus transporting twenty-
five inmates to the Central North Correction Center at Penetang. The inmate escaped from the
door to the bailiff compartment located at the back of the bus when the bus stopped at a light in
the town of Waverley. There was no bailiff in the rear compartment during the trip to CNCC as
required by the Provincial Bailiffs Standing Orders. The bus continued on to CNCC when the
light changed and did not stop until it was approximately five miles from Waverley after the
crew realized that the rear compartment door had been breached and an inmate had escaped.
Having received calls from citizens, Ontario Provincial Police officers attended at Waverley and
captured the inmate in relatively short order.
The crew on the bus consisted of Provincial Bailiff R. Giraudy, with twenty-five years of
service, and Acting Provincial Bailiffs D. Sindall and P. Chmurzynski, with fourteen and eleven
years of service respectively. The employees met with Mr. S. Small, Manager of Prisoner
Transportation Services, when they returned to Mississauga later on June 10, 2004. Mr. Small
suspended each employee with pay pending an investigation pursuant to Article 22(1) of the
Public Service Act. Further to Mr. Small?s request, Mr. P. Downing, Manager of the
Correctional Investigation & Security Unit, appointed Inspector J. Eldridge on June 11, 2004 to
conduct an investigation of the escape from the bailiff bus on June 10, 2004. During a meeting
on June 18, 2004, Mr. Small advised each employee that he would be returning to work on June
21, 2004, but that they would not be permitted to work as a provincial bailiff until the matter was
resolved. With the completion of the investigation and the disciplinary process, the Employer
suspended Mr. Sindall and Mr. Chmurzynski for twenty days, and terminated the employment of
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Mr. Giraudy. The three employees filed grievances challenging the Employer?s disciplinary
response.
The hearing of the grievances commenced on November 7, 2005, with the taking of a
view, and required twenty-five hearing days, with four days devoted to final argument. At the
conclusion of final argument, the parties advised through counsel that they were agreeable to a
?bottom line? decision if I were prepared to give one in the circumstances. Having reviewed all
of the evidence and having considered the submissions of counsel, I am prepared to give a
?bottom line? decision, which is set out below.
The Union took the position that the twenty-day suspensions and the discharge are void
because of double jeopardy, having regard to the suspension from June 11 to June 20, 2004, that
each grievor received. The Union also argued that the twenty-day suspensions and the discharge
are void because of delay. I have concluded that the Employer did not discipline the grievors in
a manner which constituted double jeopardy and that the discipline each grievor received is not
void due to delay. The Union conceded on the merits that each grievor engaged in some
culpable conduct, but it argued that their conduct in the circumstances did not warrant the
lengthy suspensions and a discharge.
The Employer took the position that each grievor engaged in serious misconduct that
warranted the dismissal of the grievances. The Employer took the position that if I found that it
did not have just cause to discharge Mr. Giraudy, I should award him damages rather than
reinstating him. It is my conclusion that it would be inappropriate to deny Mr. Giraudy
reinstatement in the circumstances of this case.
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The disposition of the grievances is as follows:
1. The discharge of Mr. Giraudy shall be substituted with a three-month suspension.
The Employer is directed to fully compensate Mr. Giraudy for his losses, subject to
the suspension and any earnings through his mitigation efforts.
2. The twenty-day suspension issued to Mr. Sindall shall be substituted with a ten-day
suspension. The Employer is directed to fully compensate Mr. Sindall for his losses.
3. The grievance of Mr. Chmurzynski challenging his twenty-day suspension is
dismissed.
I will remain seized of the grievances should the parties encounter difficulties in
implementing these directions. The reasons for this decision will follow in due course.
th
Dated at Toronto, this 5
day of July, 2007.
Ken Petryshen ? Vice-Chair