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HomeMy WebLinkAbout2011-0644.Fraser.11-08-29 DecisionCommission de Crown Employees Grievance UqJOHPHQWGHVJULHIV Settlement Board GHVHPSOR\pVGHOD 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 7pO   Fax (416) 326-1396 7pOpF   GSB#2011-0644 UNION#2011-0369-0048 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN Ontario Public Service Employees Union (Fraser) Union - and - The Crown in Right of Ontario (Ministry of Community Safety and Correctional Services) Employer BEFOREM.B. Keller Vice-Chair FOR THE UNIONDavid Wright Ryder Wright Blair & Holmes LLP Barristers and Solicitors FOR THE EMPLOYERPaul Meier Ministry of Government Services Labour Practice Group Counsel HEARING August 15, 2011. - 2 - Decision [1] On December 21, 2009, the parties entered into a Memorandum of Understanding dealing with, and arising from, the investigation of the Employer regarding alleged inappropriate use of information technology. Three paragraphs dealt specifically with the issue of ongoing and new investigations. " 2. At any point where a WDHP complaint/concern has been brought forward to the attention of management, the Employer will continue with the specific investigation of the account that gave rise to the complaint/concern. The Employer confirms that if requested, they will share, confidentially, the complaint/concern with the assigned OPSEU Grievance Officer. 3. The Employer agrees that, subject to paragraph 2 above, there will be no new investigations or continuation of any current investigation or the issuance of any disciplinary actions taken on any employee for alleged inappropriate use of Internet/information technology activities prior to the implementation of the initiative identified in paragraph 1 above. 4. The termination of these investigations does not preclude the Employer in any manner from initiating or continuing with further investigations related to inappropriate use of Internet/information technology that are/have been discovered involving violations that would or could be of a criminal nature." [2] The Memorandum further provided that I was to be seized to assist in the resolution of any grievances filed. It is agreed by the parties that the Memorandum gives me the necessary jurisdiction to hear and determine this matter. [3] It is not disputed that there was an ongoing investigation into the activities of a number of correctional officers at the time the Memorandum was signed. It is, further, not disputed that the investigations were not a result of a formal, written complaint by any correctional officer. The investigations were initiated as a result of concerns raised - 3 - by Justice Technology Services as well as Corporate Security and, in one case, as a result of an incident reported to management where a female staff member witnessed or observed a male correctional officer viewing inappropriate images on a computer. Confirmation of the incidents and the identification of the correctional officers involved were all completed prior to December 21, 2009. The employees alleged to be involved were all subsequently disciplined. All except Mr. Fraser were suspended and their suspensions have been put on hold for the moment. Mr. Fraser was discharged by letter dated May 10, 2011. [4] This decision deals with a preliminary motion brought by the Union to void the disciplinary actions taken on the basis that they contravened paragraph 2 of the Memorandum of Understanding. At the hearing, the Employer sought to introduce parole evidence dealing with the negotiations leading up to the conclusion of the Memorandum. It was the position of the Employer that paragraph 2 is ambiguous and it was on that basis that it sought to call evidence. The Union objected to the Employer calling evidence, taking the position that paragraph 2 is clear on its face and there is neither latent nor patent ambiguity. It was finally agreed that each party would put on the record what their witnesses would say if called to testify, each side reserving the right to cross-examine if required. [5] In my view, the language is clear on its face and there is no need for me to resort to extrinsic evidence to assist in determining its meaning. However, it must be said that the evidence, in any event, would not have assisted in the interpretation of the language. The most that can be said is that each party made its position clear to the - 4 - other and each party was and is of the view that the language that was ultimately adopted was consistent with their understanding of what was agreed to. This is abundantly clear from the narrative each counsel gave of what its witnesses who were involved in the negotiation of the Memorandum would have said had they been called to testify. [6] Counsel for the Union commences argument by pointing out that the parties agreed in paragraph 3 that there would be no new investigations or continuation of current ones or the issuance of disciplinary action other than as specifically agreed to in paragraphs 2 and 4. The issue in the instant case is dealt with in paragraph 2. But, the Union suggests that paragraph 2, in the manner in which it's worded, is much more limiting than paragraph 4. The latter paragraph, it is argued, uses the words initiation, continuation and potential. It is submitted that, by contrast, paragraph 2 is much more defined and limited. It is argued that the Employer is attempting to read in the word "if". That is, the Employer is trying to have the paragraph read "if the employer has a WDHP concern". [7] What the paragraph really means, however, according to the Union, is that there must be a complaint or concern by an individual that their WDHP rights have been violated. Further, that complaint or concern must be made known, in writing, by the individual to the Employer. This is to be contrasted to the facts in this case, where the issue arose because of a flagging by a computer system that something was going on at the institution which raised the suspicion that the Employer then investigated. In that situation, argues the Union, no individual came forward and, therefore, the situation is - 5 - not caught by the exception in paragraph 2. [8] The Union submits that it is not taking away the right of the Employer ever to investigate in such circumstances but argues that the Employer voluntarily gave away the right to deal with such situations up to the date of the signing of the Memorandum. [9] In the alternative, the Union argues that the situation which gave rise to discipline is not captured by the WDHP policy. It submits that the policy focuses on protecting individuals from one another. Therefore, argues the Union, if an individual is not aware of or not being subject to discrimination or harassment the policy does not apply. Put another way, the Union says that there is no environment of harassment or discrimination if there is no subject of the alleged harassment or discrimination. The investigator, suggests the Union, is not a party that can be offended as they are just doing their job when viewing offensive material. [10] The Employer argues that it would require very specific language to take away their general and over- arching right to discipline. Nothing in the Memorandum removes that right. On the contrary, suggests the Employer, there is a specific reservation of that right in the circumstances described in paragraphs 2 and 4. [11] With respect to the language in paragraph 2, the Employer submits that there need only be a complaint or concern brought to the attention of management. There is no restriction on when or by whom the complaint or concern is made. That is consistent, it says, with what occurred in the instant case. - 6 - [12] Further, submits the Employer, the Union was made aware of the investigation before the signing of the Memorandum. [13] Both parties filed various authorities to support their respective positions. I accept what they stand for, but given the nature of the determination to be made in the instant case, there are only two decisions, both by Vice Chair Petryshen, that are relevant. I will deal with them further on in these reasons. [14] The principal argument made by the Union cannot succeed. I accept that the parties negotiated, generally speaking, a moratorium on alleged inappropriate use of information technology in order to bring closure and resolve issues arising out of ongoing investigations. That is what the Memorandum clearly indicates. Notwithstanding the general statement, the parties carved out two exceptions. Paragraph 2 is one of those exceptions. As I view the language of that paragraph I see three distinct components to it. The first is temporal, that is, at what point is, the exception triggered. The second specifically describes the exception. The third is a statement of who is entitled to initiate the exception.All three components are, on their face, clear and unambiguous. [15] In dealing with the first component, the relevant words are "at any point". The plain meaning of that language, in my view, is that there is no limitation in time as to when there could have been an initiation of the complaint or concern. This component is clearly met in the instant case. - 7 - [16] The second component deals with what is meant by "complaint/concern". Contrary to the position taken by the Union I do not see how there is a requirement for there to be any formality in the strict sense of the word to what is brought forward to the attention of management. I reach that conclusion for two reasons. The first is that in the penultimate draft, the one forwarded by the Union to the Employer, the word "formal" preceded WDHP. The word was removed by the Employer in the draft it sent back to the Union, the draft that was then signed by both parties. The removal of the word at least suggests that the parties were content that formality was not essential with respect to the exception in paragraph 2. [17] The second reason is that the Memorandum uses the word concern as well as complaint. I am of the view that the parties intended there to be a difference between the two. In that respect, I note that the WDHP policy is complaint driven not concern driven. Thus, whereas it may well be argued [although I make no finding one way or the other in this regard] that a complaint must be initiated by something in writing the same cannot be said of a concern, which clearly is less formalistic than a complaint. [18] The third component is, in my view, equally clear. The language is silent on who may bring a complaint or concern forward.There is, therefore, no restriction on who may bring a complaint or concern forward. It is passive. It simply provides that "where" a complaint/concern has been brought forward the Employer will continue with the investigation. If the parties had intended to restrict the ambit of this component, more clear language then what is in the paragraph would be needed. - 8 - [19] For all the above reasons, I reject the position put forward by the Union with respect to its first argument. [20] In dealing with the Union's second argument, I am of the view that this matter has already been decided by Vice Chair Petryshen in his decision in Hastie et al, [GSB # 0542/01] and in his decision in Wickett et al,>*6%±@,QSDUWLFXODU9LFH Chair Petryshen rejects the argument that the lack of a complaint per se by an employee alters the nature of the activity engaged in by the grievors. [See Hastie, page 43andWickett, page 20.] By that, the Vice Chair reasonably accepts the proposition that there can be a violation of the WDHP policy and consequential discipline of the violators of the policy notwithstanding the absence of an employee complaint. At pages 13 and 14 of Hastie, The Vice Chair writes: "The Union concedes that the grievor's had contravened the IT Policy. The reference to the WDHP Policy in the IT Policy indicates that unacceptable activity includes access, displaying and storage of offensive material conducive to a poisoned work environment. I GHWHUPLQHGLQWKHEHVW±FDVHGHFLVLon that the grievors contravened both the IT Policy and the WDHP Policy." [21] It is clear in the instant case that, at the very least, the grievors are alleged to have had access on their computers to "offensive material conducive to a poisoned work environment" which the Vice Chair concluded contravened the WDHP Policy. Consequently, I cannot accept the second proposition of the Union. - 9 - [22] The motion of the Union is denied. The Employer has not violated Paragraph 2 of the Memorandum in continuing the WDHP investigation as it did. It was entitled to continue the investigation and, as appropriate, discipline subject to the right of the Union to grieve if it felt that discipline was either unwarranted or too severe which, obviously, it has. [23] I note, however, that the letter of discipline given to Mr. Fraser, in the subject line, refers to more than just WDHP violations. Specific reference is made to I & IT violations as well as misuse of I & IT resources.The body of the letter of discipline also references violations beyond WDHP violations. Both parties have acknowledged that there were only two exceptions permitted in the Memorandum. I need not repeat what they are. It would appear that, at least on the surface, the investigation of the Employer and subsequent discipline went beyond the two exceptions permitted. I make no finding as to the ultimate effect this might have on the discipline imposed by the Employer but it is evident from the agreement reached by the parties that the ultimate determination of whether the grievor should have been disciplined and, if so, whether the discipline imposed was appropriate, will be based only on the exception permitted in paragraph 2 of the Memorandum. [24] The matter is to be set down for hearing on the merits should it be pursued further. th Dated at Toronto this 29 day of August 2011. M.B. Keller, Vice-Chair