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HomeMy WebLinkAbout1976-0029.Thompson.76-05-2029176 CROWN EMPLOYEES GRIEVANCE SETTLEMENT BOAR0 416/965/1410 Oueen’s Park Toronto. Ontario WA 125 IN THE MATTER'OF ,AN ARBITRATION Under The CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD Between: Mr. R. J. Thompson (Grievor) And The Ministry of Transportation and Communications (The Employer) Before: D. M. Beatty Chairman E. J. Orsini Member H. Simon Member For the Grievor G. Bruce - Ontario Public Service Employees Union For the Employer N. H. Pettifor - Staff Relations Supervisor Ministry of Transportation and Communications Hearing Westbury Hotel, Toronto, Ontario, May 14, 1976 - c.. c1 -2- Mr. R. J. Thompson who until April 2, 1976 was employed in the Maintenance Department in District 3, grieves that he has been dismissed without just cause. The facts surrounding Mr. Thompson's dismissal are not in dispute between the parties and indeed were the subject of prior discussions and agreement between them. Briefly stated until September 24, 1975 Mr. Thompson was employed as a Highway Equipment Operator, 3 'in the.Ministry's " Maintenance Department. As such, as the position specification clearly evidences, Mr. Thompson was required to and indeed did in fact possess a valid chauffeur's license. However as a result of a conviction being registered against him for impaired driving while he was off duty, Mr. Thompson had his license suspended and accordingly was not thereafter qualified to drive the Ministry's vehicles. Further, following a hearing into the matter by Mr. F. C. Brown, the District Engineer, Mr. Thompson was advised that, effective September 24, 1975 he was to be demoted and reclassified as a Manual Worker,Premium, a position in which he did not require a vehicle driver's license. Moreover, it should be noted that although the grievor apparently was of the view that his reclassification would endure only for the three months, during which his license would be under suspens~ion, Mr. Brown, in a letter dated October 30, 1975lmunequivocally advised the grievor that there was no guarantee that his reclassification to the position of Highway Equipment Operator 3, would automatically follow upon the return of his license. Rather, according to Mr. Brown that event would depend upon a number of factors, including most critically, when a vacancy in that classification arose. In effect Mr. Brown advised this Board ” & -3- that when Mr. Thompson was reclassified,as a Manual Worker,Premium, the Ministry had promoted another employee into Mr. Thompson's position and as a result had simply changed Mr. Thompson's classification without altering its existing complement. In any event, while he continued in employment during t.he fall and early winter of. 1975, with the Mi,nistry as a Manual Worker, Premium Mr. Thompson was subsequently charged and again convicted of driving to work while his license was under suspension. As a result of this conviction being registered Mr. Thompson was required to pay a rather substantial fine and his license was suspended for a further period of one year commencing January 20, 1976. Following upon this second conviction, Mr. Brown again convened a hearing and in a letter dated February 11, 1976 advised the grievor that because he could not be employed as a Highway Equipment Operator or in any other capacity which required the possession of a valid driver's license, it was unlikely that the Ministry could provide him with any alternate employment following the conclusion of the winter maintenance programme. As Mr. Brown testified, given the budgetary constraints under which the Ministry was obliged to operate and the fact that there was no work in the foreseeable future which Mr. Thompson could perform without such a license, the Ministry had no other choice than to terminate his services at the conclusion of the winter maintenance programme. Indeed when that programme did come to an end, Mr. H. Gilbert, the Deputy Minister, advised the grievor by letter dated March 15, 1976 that the Ministry was obliged to dismiss him for cause effective April 3, 1976. It is against those facts that this Board must assess the -4- propriety of the Ministry's dismissal of Mr. Thompson, In doing so this Board accepts the premise, consistently articulated by arbitrators in the private sector that the dismissal of an employee is appropriate only in those circumstances when he or she has engaged in such culpable behaviour as to demonstrate his or her incompatibility with the con- tinUatiOn Of the employment relationship. R~'Lo~&& Btirnham Ltd. (1972) 24 L.A.C. 218 (Hanrahan); Re Libby, McNeil2 and Libby 'of Canada'Ltd. (1972) 23 L.A.C. 287 (Palmer). Very simply arbitrators have reasoned that where there is no fault or dereliction on the part of the employee, it is simply not appropriate for the employer to invoke punitive measures against him. Put somewhat differently, arbitrators are uniformly agreed that where an employee is simply incapable of performing all of the tasks required of him, or where there is simply not sufficient work available to continue his employment, those considerations do not provide the employer with just or reasonable cause for severing his employment altogether. Rather, in such circumstances, where an employee is incapable of performing all of the tasks the employer reasonably may expect of him, or where there is insufficient work or funds to continue him in their employ, the appropriate response that has, without ex- ception, been countenanced by arbitrators, is to lay-off such a person pursuant to the relevant terms of the collective agreement. me Aro - Canada Ltd. (1975) 10 L.A.C. (Zd) 81 Beatty; Re Libby, McNeill~& Libby of Canada (1972) 23 L.A.C. 287 (Palmer): Re De Havilland Aircraft of Canada Ltd. (1964) 15 L.A.C. 284 (Laskin); Re Atomic Energy of Canada Ltd. (1962), 13 L.A.C. 210 (Cross); - Re Ajax Hydra Electric Commission (1963) 13 L.A.C. 396 (Kimber); Re John Bertram'S'Sons'Co. 'Ltd. (1950), 2 L.A.C. 474 (Lane). To do otherwise would, in the words of one Board: P 2; -5- . . . . . . ..improperly and unreasonably abrogate that employee's seniokity, bumping and recall rights which in this case are enshrined in art. 13 of the collective agreement. Even if the company's position with respect to Mrs. Emburqh's ability to perform the job in question has merit, she has done nothing, nor suffers any infirmity which would suggest she is incapable of performing other jobs in this plant. As a general matter it is proof of incompatibility with the employment status either because of .some misconduct or some disability that justifies the termination of an employee. It simply does not follow as a matter of logic or of equity to conclude that an employee's inability to perform all or part of the tasks assigned to one particular job classification renders her unsuitable for all employment with her employer. Re Ato'Canada Ltd. (1975) 10 L.A.C. (2d) 86, Beatty. Applying those standards to the facts of this grievance, it is manifest that the employer did not have just and reasonable cause to terminate Mr. Thompson. In the first place, it should be noted that when the grievor was first convicted of impaired driving in September 1975, even though the offence occurred in his off duty hours, that conduct may have prejudiced or detrimentally affected his employer's legitimate interests and.accordingly, although arbitral opinion is divided on this issue, may have exposed him to disciplinary sanctions. Re Brock University (1970) 21 L.A.C. 146 (H. D. Brown); et Re Teleqrm Publishing ". (3958), 8 L.A.C. 298 (Little). However, it is readily apparent from Mr. Brown's letter of October 8, 1975 that instead of invoking its dis- ciplinary powers at that time the employer was determined to accommodate him and accordingly reclassified him to the position of Manual Worker, Premium where the possession of a valid driver's license was not a necessary condition of employment. That Mr. Brown perceived this re- classification as being something more than a mere temporary assignment is manifest from his letter of October 30, 1975 wherein he advised the grievor that he should not assume he would automatically be reclassified when his license was returned to him. Accordingly it appears to this -6- Board that subsequent to September 24,.1,975 when Mr. Thompson was classified as a Manual Worker Premium, no longer could it be said that the possession of a valid driver's license was an essential qualification for his job. To the contrary as Mr. Brown himself conceded, in that clas- sification, there would have been no occasion when Mr. Thompson would have been required to possess a license for the discharge of the duties associated with that position. Necessarily then, it must follow that when Mr. Thompson's license was suspended a second time on Januar,y 20, 1976 for a further period of one year, that conviction, again for an off duty offence, could not in any way have affected his ability to fulfill the employment ob- \ ligations of the position in which he was then classified. Furthermore, in such circumstances, where the act or condition complained of did not detrimentally affect the employer's reputation, render him unable to dis- charge his employment obligations, cause other employees to refuse or be reluctant to work with him, or inhibit the employer's ability to ef- ficiently manage and direct its operations, arbitrators are uniformly agreed that an employer may not properly discipline for such off duty misconduct. Re dir Canada (1975) 10 L.A.C. (2d) 346 (Morin); Re Lord & Burnham Co. Ltd. (1972), 24 L.A.C. 218 (Hanrahan); Re Libby, McNeil1 & Libby of Canada Ltd. (1972) 23 L.A.C. 287 (Palmer). Thus, rather, as one arbitrator has summarized this matter: In the instant case, the act for which the griever was convicted did not detrimentally affect the production of the plant or management operations or the safety of the employees or of company property or the general dis- cipline in the plant or matters of a similar nature. No doubt the fact of the griever's conviction would indicate to the company and to the community at large that the griever was not a man of good character. The company, however, is not the custodian of the griever's character, and while there may no doubt be some jobs in which the character and reputation of the employee is an important element, the griever's was not one of them. Re General Spring Products Ltd. (1968), 19 L.A.C. 392,395 (Weatherill) -7- Thus, in the circumstances of the instant case, the con- sequence of the grievor's-having lost his license for a further period of one year can only be said to have affected his ability to perform the job of a Highway Equipment Operator, a job in which he was no longer classified. To advert again to the comments of the Board in the RCI ATO - Canada Ltd. (supra) case, the fact that Mr. Thompson is incapable of performing the duties associated with that classification simply does not support the employer's termination of him. To the contrary, from Mr. Thompson's own position, there was simply nothing which occurred between the time of his first conviction and April 2, 1975 when he was dismissed, which affected his ability to perform the duties of !$nUal Worker,Premium, the position in which he~was then classified. It is of course true that when Mr. Thompson's license was suspended for a further period of one year, that would, and did affect the employer's ability to utilize him in any capacity in which such a license was a necessary qualification of employment. More specifically, it necessarily followed, when Mr. Thompson's license was suspended a second time, that the Ministry could only employ him in the position of Manual Worker, Premium,-for which it had, following the winter maintenance programme, little or no work available. Moreover, from the evidence of Mr. Brown, it is clear that it was simply because there was not sufficient work to justify the retention of a Manual Worker,.Premium and the severe budgetary pressures under which the Ministry was obliged to operate and not the grievor's ability to perform the job duties of that classification, that was the root cause of the Ministry's decision to dismiss him. While it is true that in the appropriate circumstances such considerations may well justify the laying off of an employee, according to the arbitral reasoning noted earlier in this award, that will not and can not support 3 .z -8- the dismissal of him. Re Are of Canada Ltd. (Wpra). Moreover, if, as the employer may, pursuant to S. 22(4) of The Public Service Act,.determine that the grievor must be laid off, it is manifest from s.32 of the Regulations enacted under that legislation that certain procedures and conditions must be satisfied. That section of the Regulations provides: Lay-Off and Recall 32.--(l) In this section “employee association" means a duly constituted association of persons in the public service which has for one of its purposes the representation of public servants in matters relating to employment and to which the majority of public servants belong. (2) This section does not apply to persons in the positions or classifications set out in Schedule I, or to persons appointed to Group 2 of the unclassified service. (3) In this section "release" means release from employment under subsection 4 of section 22 of the Act or transfer in lieu of release, with the consent of the transferee to another position having a classifi- cation with a lower maximum salary. (4) Where it is proposed to release a public servant from employment, the deputy minister shall, where possible, transfer the public servant to another vacancy or work assignment in the ministry having the same classifi- cation or, with the consent of the public servant, having a classification with a lower maximum salary. (5) The deputy minister shall deliver to the public servant at least fourteen days notice of a release and shall send a copy of the notice to the Commission and the Provincial Auditor and to the employee association. (6) A public servant shall not be released while there is a public servant, (a) who is in the same classification or position or in another classification or position in which the public servant has served during his current term of continuous employment; (b) who is employed in the same administrative district 0.r unit, institution or other work area in the same ministry; (c) who has similar qualifications; and (d) who has a fewer number of years of completed service. However on the facts of the grievance before us, there is simply no evidence that the procedures outlined in s. 32(4) or 32(5) were followed or complied -9- with. Nor was Mr. Brown able to advise this Board that Mr. Thompson was the employee with the least seniority in his present classification. Very simply, until such matters have been settled~it is obvious that the lay-off of Mr. Thompson would be both premature and improper. To hold otherwise would necqssarily prejudice Mr. Thompson's rights and interests described earlier in this award and which are enshrined in those Regulations. Accordingly, and without commenting on any rights the employer may wish to exercise in the future, it must follow that Mr. Thompson was not and could not have been laid off on April 2, 1976. In the result, we must conclude that the discharge of Mr. Thompson was without just and reasonable cause. Accordingly we would order Mr. Thompson to be reinstated forthwith to the position of Manual Worker Premium, with full compensation and seniority, effective to the date of his discharge, less any monies he would not otherwise have received but for his dismissal. In the result, and for the reasons given, this grievance must succeed. Dated at Toronto this 20th day of May, 1976. __. D. M. Beatty Chairman I concur E. J. Orsini Member I concur H. Simon Member