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HomeMy WebLinkAbout2019-0674.Rorke.20-09-21 DecisionCrown Employees Grievance Settlement Board Suite 600 180 Dundas St. West Toronto, Ontario M5G 1Z8 Tel. (416) 326-1388 Fax (416) 326-1396 Commission de règlement des griefs des employés de la Couronne Bureau 600 180, rue Dundas Ouest Toronto (Ontario) M5G 1Z8 Tél. : (416) 326-1388 Téléc. : (416) 326-1396 GSB# 2019-0674 UNION# 2019-5112-0072 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN Ontario Public Service Employees Union (Rorke) Union - and - The Crown in Right of Ontario (Ministry of the Solicitor General) Employer BEFORE Gail Misra Arbitrator FOR THE UNION Dan Sidsworth Ontario Public Service Employees Union Grievance Officer FOR THE EMPLOYER James Cheng Treasury Board Secretariat Employee Relations Advisor HEARING September 16, 2020 (by videoconference) -2- DECISION [1] The Employer and the Union at the Toronto South Detention Centre (“TSDC”) agreed to participate in mediation-arbitration in accordance with the Local Mediation- Arbitration Protocol that has been negotiated by the parties. Should mediation not result in resolution of a grievance, pursuant to the Protocol, they have agreed to a mediation-arbitration process by which each party provides the Arbitrator with their submissions setting out their respective facts and the authorities they may be relying upon. This decision is issued in accordance with the Protocol and with Article 22.16 of the collective agreement, so that it is without precedent or prejudice to any other matters between the parties, and is issued without written reasons. [2] Kris Rorke filed a grievance dated April 29, 2019 claiming that the Employer had violated Articles 21.1 and 3 of the Collective Agreement, as well as various protocols and policies, and section 9 of the Occupational Health and Safety Act. The grievance was filed after the Employer gave Mr. Rorke a 1-day (8 hour) suspension without pay. The remedy sought is payment for the 8-hour shift, and removal of the suspension from his record. [3] On April 2, 2019, the Employer gave the Grievor a letter of suspension for one day for an incident that had occurred in October 2018. The Grievor was disciplined for allegedly abandoning his post and leaving his unit without his manager’s approval; for failing to sign in or out of the log book; and for being insubordinate, unprofessional and disrespectful when he refused a direct order from his manager to return to his unit. [4] Mr. Rorke is a Correctional Officer (CO) 2 at the TSDC. He was hired in 2013, and by the time of the incident that gave rise to the discipline had been there about five years. [5] According to the Union, on October 10, 2018 the Ministry of Labour (“MOL”) had attended at the TSDC to investigate a complaint about an outbreak of scabies in the jail. No order had been issued by the MOL but there was agreement on the protocol to be followed to address the outbreak. [6] According to the Grievor’s Occurrence Report, filed on October 11, 2018, he had been assigned to work on Unit A4D on the 7 a.m. to 6 p.m. shift. The Grievor believed that CO Howes would also be working on A4D that morning to ensure the completion of scabies treatments with inmates. When Mr. Howes called and advised the Grievor that he had been redeployed to another unit, the Grievor admits he left his unit at 7:30 a.m. and went to search for Mr. Howes on Medical Unit A and B Sub Module to talk to him. -3- [7] The Grievor claims that he was very stressed by the news that Mr. Howes was not going to be working on the scabies issue, as it had been ongoing for some time. He claims he was so stressed that he did not sign himself off the unit in the log book. He also admits he did not seek management authorization to leave the unit. However, he states that at the time the inmates were locked in their cells and there was another CO present to remain on the unit. [8] The Grievor states that he also left the unit in order to seek direction from his Health and Safety Representative as he felt the final step in the scabies treatment process was being put in jeopardy. [9] The Grievor did not ultimately return to A4D till 12:10 p.m., by which time CO Howes had been redeployed to his unit, so Mr. Rorke’s health and safety work refusal had been resolved. It is what occurred in the intervening time that is the issue. [10] On the day in question the Grievor’s supervisor was Sergeant Crawford. According to Mr. Crawford’s Occurrence Report for the day, he had been to A4D at 7:12 a.m. and had told the CO already there, Mr. Senthoor Gnanasegeran, that Mr. Crawford’s expectation for the day was that all the inmates should shower (as this was part of the scabies treatment protocol), and he expected Mr. Gnanasegeran to pass this information on to his colleague, Mr. Rorke. At 8:20 a.m. Mr. Crawford assigned CO Hodgson to assist on A4D in the serving of breakfast, and then to go to another unit to facilitate breaks. [11] At 9:10 a.m. Mr. Crawford was called to the Health and Safety office by Sergeant Sellick, where he met with the Grievor, who asked that he reassign CO Howes to A4D module. Mr. Rorke advised that Sergeant Bazger, the General Duties Manager, had already told the Grievor that he would not reassign that CO, but the Grievor was now asking Mr. Crawford to do so. Mr. Crawford told the Grievor that he would not reassign the CO, but that he and Mr. Sellick would look into the matter. Mr. Crawford had not authorized the Grievor to remain off his unit, and assumed he would have returned there after this meeting. [12] Although it is not in his Occurrence Report, the Grievor claims that he was also told that the issue was being dealt with by the Joint Health & Safety Committee, and to go to his post and work. As such, he recalls that he was directed to go back to work. While Mr. Rorke did return to his post, he was not satisfied with the manner in which the protocol for dealing with scabies was being managed by his partner, Mr. Gnanasegeran, who he viewed as an inexperienced officer, so he told his partner that he was going to the Union Health & Safety office to tell them. At the time, all inmates were secured in their cells, and there were two COs on the unit, as Mr. Hodgson was there too. [13] At 10:40 a.m. Mr. Crawford was informed that the showers for inmates had not yet been initiated on A4D, so he went to the unit to see what was happening. At that point he found CO Hodgson, who was only supposed to be have been helping serve -4- breakfast on that unit, was still there. Both the COs assigned to work on that unit had left, neither had signed out in the log book, and Mr. Hodgson did not know where they had gone as no one had told him. It is worth noting that by this time the Grievor had essentially been gone from the unit since 7:30 a.m. Mr. Crawford paged and radioed twice to find both Mr. Gnanasegeran and Mr. Rorke. [14] When the Grievor answered the page, he told Mr. Crawford that he was in the Health and Safety Office and was participating in a Health and Safety matter related to B2. He implied to Mr. Crawford that he was a H & S Representative. Mr. Crawford called the Grievor back a few minutes later to ask him if he was a Health and Safety Representative, and then learned that Mr. Rorke was not. Mr. Crawford therefore ordered him to return to A4D. This would have been the second direction to the Grievor that morning to go back to his post. [15] There is some dispute regarding what occurred next. According to the Union, Mr. Crawford asked Mr. Rorke twice to return to his unit, but the Grievor would not go back. The Grievor tried to again address his concern about the manner in which the scabies outbreak was being dealt with on his unit, but Mr. Crawford ordered him to return to his post. That was when the Grievor indicated he was initiating a Health & Safety work refusal and handed the phone to Mark Manna, the Local President. [16] The Employer alleges that when he handed over the phone, the Grievor used an expletive. According to Mr. Crawford’s Occurrence Report, after he ordered the Grievor to return to A4D, Mr. Rorke handed the phone to the Local President and was heard saying “I’m not dealing with this f---ing guy”. Mr. Manna told Mr. Crawford that Mr. Rorke was in distress, but when the Sergeant insisted that he speak to the Grievor again, Mr. Manna put him back on, and Mr. Crawford told the Grievor that he wanted an Occurrence Report explaining what was happening, why he was in the Health and Safety office, why he was refusing a direct order, and what his work refusal was based on. [17] The Grievor denies that he used an expletive, but concedes that he was upset because of his health and safety concern not being taken seriously. [18] When Mr. Crawford went to A4D at 12:30 p.m. he told COs Hodgson and Gnanasegeran that Mr. Rorke had initiated a work refusal. They told him they were not refusing to work, and they began to facilitate the inmate showers at that time. [19] On December 10, 2018 an allegation meeting was held regarding this incident, and on April 2, 2019 the Employer issued the one-day suspension to the Grievor as it was of the view that the allegations had been substantiated. Mr. Rorke was found to have behaved in a manner that was insubordinate, unprofessional, and disrespectful of management. He had not followed the established process for resolving legitimate health and safety concerns as he had not told his manager that he was making a health and safety work refusal, but had instead gone to the Union office to tell them -5- first. When told by management repeatedly to return to work, he had not complied, and had used an expletive. [20] The Union argues that the discipline was unwarranted, and is a reprisal for the Grievor having made a work refusal pursuant to the Occupational Health & Safety Act. The Union also claims that the discipline the Grievor received was unfair and excessive as Mr. Gnanasegeran had also left the unit without noting in the log book where he was going or the time he left. [21] There is no dispute that Mr. Rorke did not sign out of his unit when he left, but it is the Union position that COs and others routinely do not sign out in the log book when going elsewhere in the facility. Other than Mr. Gnanasegeran, there is no evidence before me regarding what others do in this regard. [22] I note from Mr. Gnanasegeran’s Occurrence Report of October 11, 2018 that he too had been asked by Mr. Crawford to account for why he had left A4D without recording the time that he had left. According to Mr. Gnanasegeran’s report, he had started his shift at 7 a.m.; Mr. Crawford had told him about the scabies decontamination, which was further explained to him and to the housekeeping staff person by Mr. Charles at around 8 a.m.; at 8:51 a.m. the breakfast meal cart had arrived and CO Hodgson came to assist him with the meal cart service to the inmates, which went from 9:05 a.m. on. After the 10 a.m. tour, Mr. Gnanasegeran left the unit at 10:40 a.m. to go and get a breakfast meal outside the institution as he was very hungry, and stressed about the unit’s scabies contamination. He returned at approximately 11:10 a.m. and was then told by Mr. Crawford to write a report about his whereabouts. Mr. Gnanasegeran was extremely apologetic about having forgotten to log out of the unit, and about his lapse of judgment in that regard. [23] It is clear from Mr. Crawford’s Occurrence Report that Mr. Gnanasegeran received a verbal counseling for his failure to follow proper logbook documentation when he had left the unit that day. According to the Employer, it was because Mr. Gnanasegeran admitted his fault, was very remorseful, and had only been gone from the unit for about 30 minutes, that he received verbal counseling. His situation was quite unlike that of the Grievor, and the Grievor has never shown any remorse for any aspect of his behaviour that day. [24] Having considered the parties’ submissions, and the documents relating to this incident, I am satisfied that the Grievor left his assigned post for a long period of time on October 11, 2018; that he did not have managerial authorization to leave his unit when he first left at 7:30 a.m.; he did not log out and did not indicate where he was going when he first went in search of Mr. Howes; that he then went to the Health and Safety office, and that despite being ordered to return to work at around 9:15 a.m., he went back but did not work. Mr. Rorke then left the unit again; he had no managerial authorization to do so; he did not sign the log book when he left; and then only after he was repeatedly ordered to return to his unit at around 11 a.m. did he advise his manager that he was making a health and safety work refusal. -6- [25] I accept that the Grievor was upset that morning about the scabies outbreak. He may well have believed that no one but Mr. Howes could ensure that the shower protocol was properly followed, but it was not his place to decide who should be assigned to work where in the institution. [26] Since Mr. Rorke had already worked at the TSDC for about five years by the time of this incident, and can be taken to have known what the protocol was if an employee wished to make a health and safety work refusal, he would have known that he had to first make his work refusal known to his supervisor or manager, that would start the process of a level one investigation if it was warranted, and the Grievor would have been relieved of his duties and he could have gone to a safe place. He did not do that until around 11 a.m. on October 11, 2018, hours after he had not been doing his job, and after he had been told to return to his duties repeatedly, but had still not informed his supervisor that he was engaging in a work refusal. [27] I am satisfied that the Employer had just cause to discipline the Grievor for his behaviour, and I cannot find that there was any reprisal for Mr. Rorke having done a health and safety work refusal. That work refusal occurred so late in the morning on the day in question, long after the Grievor had been conducting himself in an unacceptable manner by wandering around the institution without authority, without having signed out of his assigned post, and when he had been ordered to return to his post at least three times. [28] Nonetheless, I am of the view that a one-day suspension was too harsh a penalty in all the circumstances. Mr. Rorke had a clean disciplinary record at the time of the incident. Furthermore, there is little doubt that he was very upset about the scabies outbreak, and it was his perception that the Employer was not doing enough to ensure that it was cleared up. In all the circumstances, I substitute a Written Reprimand for the one-day suspension, and direct that the Grievor be compensated for his losses. [29] The grievance is upheld in part. I will remain seized in the event there are any issues arising out of this decision. Dated at Toronto, Ontario this 21st day of September, 2020. “Gail Misra” _____________________ Gail Misra, Arbitrator