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HomeMy WebLinkAbout1976-0050.McRae.77-03-231 i Onlarlo SO/76 .- --- CROWN EMPLOYEES GRIEVANCE SETTLEMENT EOARU -~ '476 964-6426 Suite 405 77 BZoor Street West TORONTO, Ontario - MS.5 IM2 IN THE MATTER OF AN ARBITRATION Under The CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD Between: Mr. D. R. McRae (Griever) And Ministry of Community & Social Services (Employer) Before: K. Swan Chairman For the Grievor: Mr. R.~Houlahan, Ontario Public Service Employees Union 'For'the Employer: Mrs. R. McCully, Legal Branch Ministry of Community & Social Services Hearing: February 8, 1977 Suite 405, 77 Bloor Street West Toronto, Ontario c-= -2- Prior to the hearing in this matter the parties were, able to agree upon a detailed statement of facts, and this statement was presented to the Board as a written summary;- as a consequence the hearing,was considerably expedited. The, grievor seeks redress in respect of a suspension from April 21, 1976 until August 20, 1977 inclusive. The basic facts underlying this grievance involve criminal charges laid against the grievor following an incident on February 28, 1976 and the subsequent suspension by the Deputy Minister on the basis of those charges. At the material time the grievor was employed as a Residential Counsellor 3 at the Rideau Regional Centre in Smiths Falls, Ontario. His duties involved the supervision of other employees and the custodial care of retarded adults. Certain evidence of events occurring before the February 28, 1976 incident was before us at the hearing but, apart from one incident to which we shall make later reference, we do not consider this evidence to bear directly on the matter in issue. The fundamental reason for the suspension was the main incident, and it is to this event that most of the agreed facts and the evidence related. A complete picture of the event of February 28 is not before us, since the parties presented no direct evidence of the occurrence. We do, however, have a complete picture of the information reasonably available to the employer, and we are thus able to assess the employer's claim that it had just cause to -’ I . . -3- suspend the grievor on the basis of the evidence which it could obtain. The February 28 incident involved the use of a firearm, and resulted in the wounding of the grievor's wife. The police arrested the grievor and laid charges of attempted murder under s.222 of the Criminal Code and of pointing a firearm at an ambulance attendant under s. BBa of the Code. Following a remand.in custody to Kingston Psychiatric Hospital for assessment, the grievor was released on bail on April 6, 1976. From the time of his original arrest until April 21, 1976, the,grievor was on. a special leave of absence without pay, and no issue arises as to the propriety of that course of action. Following the suspension, during which some correspondence passed between the Ministry, the grievor's solicitors and his family physician, the charges against the grievor were reduced to a charge of shooting with intent to wound under s.ZZB(a) of the Criminal Code. The grievor pleaded guilty to that charge on August 20, 1976 and was given a three month custodial sentence followed by two years of probation upon certain conditions. The parties have treated the period of incarceration as a special leave of absence without pay as well, and thus no issue arises as to the period from August 20 to October 20, 1976. On October 20, the grievor was released from custody, and the Ministry forthwith scheduled a hearing in respect of his continued employment. The hearing took place on November 4, 1976; by letter dated ,November 24, 1976 the Deputy Minister reinstated the grievor in employment with effect from October 21, 1976, upon certain -4- conditions. The grievor remained, at the time of the hearing, in the Ministry's employ in his former classification. The onus in a case of discipline lies upon the employer, and that onus is to establish, on a balance of probabilities, that it had just cause to take the action it did. The Ministry's case proceeded upon the ground that the charqes laid against the grievor involved the excessive use of alcohol, considerable emotional stress, violence and the use of a potentially lethal weapon. Such circumstances raised serious doubts as to the safety of permitting the grievor to continue to work in a position where he had charge of the custodial care of persons dependent, to a greater or lesser extent, upon the services offered by the Ministry and its employees. The Deputy Minister's letter of April 21 giving notice of the suspension sets out these reasons quite clearly gchedule a: In view of the serious charges which have been Zuid agakst you and the circwnstances which have g-kn rise to them, you oze suspended from employment pending an investigation. In order to ensure that your rights are not adversely affected nor your right to remain siZent jeopardised by an investigation and a subsequent hearing, this matter z-i21 not be actively investigated and a hearing held until the charges against you have been disposed of. I am very concerned as to what has transpired because of the nature of your responsibizities for custodial care and I do not consider it proper in the circwnstunces for your emptoyment to continue. You are therefore suspended without pay from empzoyment pursuant to section 22 of The Pubtic Service Act effective from the tientg first (21) of ApriZ, 1976. UntiZ this date the period you were not in attendance at work has been covered by a speciaZ leave without pay. Despite the Deputy Minister's statement that there would be no active investigation, the Ministry did send Mr. W. G. McNamara, then a Senior Personnel Representative, to Smiths Falls in connection with the grievor's case. Mr; McNamara gave evidence that his visit took place while the grievor was still at Kingston Psychiatric Hosoital, and was thus prior to April 6, 1976. He collected information about some difficulties between the grievor and his supervisors and, in particular, about a threat made by the grievor to his Unit Program Director, to the effect that he would shoot him. It is clear from Mr. McNamara's evidence that this information was available to the Deputy Minister when she made her decision to suspend the grievor; there was also uncontradicted direct evidence before us of the threat, and of certain other conflict, from Mr. T. L. B. Morrison, the Unit Program Director. In addition to this evidence it appeared to be common ground at the hearing that the psychiatric assessment prepared at Kingston Psychiatric Hospital on March 26, 1976 for His Honour Judge R. J. Delisle of the Provincial Court was also available to the Ministry at this time. Mrs. McCully relied on several passages in that report as supporting the Ministry's action. ,It is not necessary or desirable to reproduce the'detail of a report of that nature, but the specific passages dealt with sources of emotional stress forthe grievor, one of which it identified as his employment at Rideau Regional Centre, and referred to problems of alcohol abuse. A significant passage relating to the February 28 incident includes the observation that the grievor appeared to have lost his capacity to recognize members of his family and seemed to be acting in a way which connoted a lapse from reality. -6- The grievor's case, based on the same evidence, was simply that the particular incident of February 28 was a domestic matter unconnected with the Ministry, and that the Ministry had failed to demonstrate that the grievor could in any way,be considered dangerous to those in its care. In addition, the grievor alleged flaws in the procedure by which the suspension was carried out, and suggested that the Ministry had failed to follow its own policy in this regard. Finally, the grievor argued that his reinstatement immediately following his release from custody was clear evidence that there had never been any sound reason to suspend him. In Mr. Houlahan's submission, the qrievor had underoone no psychiatric treatment and was therefore "no different" on October 21 than he was on April 21, and therefore if reinstatement was justified in October it would have been equally justified in April. The best starting point for an assessment of the propriety of the Ministry's action in this case is s.22(1) of the Public Service Act, R.S.O. 1970, c.386, as amended: A deputy minister may, pending an investigation, suspend fmm employment any publin servant in his devartient for such ueriod as the regulations prescribe, and during any such veriod of suspension my withhoLd the sa2m-y oP the public servant. The ambit of this general provision is further expanded by the regulations passed under the Act, R.R.O. 1970, Reg. 749 as amended, and particularly s.31 thereof, which provides, in part: 1. Where the Deputy Minister suspends a pubZic servart from empZoyment pending an investigation, the oeriod df suspension shall not exceed twenty working days. 2. NotithstandGq subsection 1. where in fhe opinion of the Deputy Minister, an additional period of time is required to complete the investigation, the Deputy Minister may Fens the period of suspension for not mope than -7- twenty working days in each case, for such additional periods as are considered necessary. We were informed by the parties that there is no dispute that the Deputy Minister properly renewed the suspension of the grievor at the end of each twenty day period, and so we are concerned primarily with the reason for, and not the manner of, the suspension. Policy 6-15-1 dated June 1, 1976 is entitled "DISCIPLINE-SUSPENSION DURING INVESTIGATION"; despite the date of this document it was submitted to us as Exhibit 5 and the parties proceeded as if it applied to the suspension on April 21, 1976. Following a brief summary of the statutory and regulatory provisions quoted in full above, the document goes on to make the following provisions for suspension: ‘FaOtors ‘to ‘be .Corisidered ‘?rior ‘to .Suspen&on The decision to +3uspend an employee pending investiriation and to withhold sam during such suspension, will be based on consideration of the folkming factors: al The mature of the alleged offence for which suspension is being conhiered. b) Whether the investigation, if the employee were to remain on the job, would impair: . The ability of the employee to function. . The ability of other employees to function. . The effectiveness of the organization. cl rhe risk that the employee may impede the investigation by being allowed to remain at work. faction After Suspension and ~Investigation Where the deputy minister decides that disciplinary action is required, he should: . Not change the original terms of the suspension to petit recovery of any salary paid during the period of suspension. . Take discipZinmy action in accordance tith the poticy contained in this Section, whether or not the offence may be re2ated to any pending crimina2 charges. -8- . Obtain legal counset, before any disciplinary action is taken, in all instances where crimina2 charges are associated with the reason for disciplinary action. Where the deputy minister decides that no pena2ty is required, he shou2d: . Restore the employee to the circumstance which existed before the suspension; and . Reimburse the emp2oyee for any pay withhe2d. Not a Disciplinary Neasure Suwmsion during investigation is not to be used as a disciplikry measure. The Manual,of Administration-is,.of course, not a negotiated document; it therefore does not bind us, and we are of the view that we should consider it essentially as an internal administrative instruction. Similarly, there appears to be no reason why a departure from the strict procedures laid down in the Policy (as opposed to those set out in the statute and regulations) should automatically connote improper conduct on the part of the Ministry. In appropriate cases disregard of the procedures duly set down may well be evidence of conduct contrary to the rights of the Union or of individual grievors, but we do not consider that such a conclusion need follow automatically. The arbitral jurisprudence developed under other collective bargaining legislation is of considerable interest in a case like the present one. A series of recent decisions has expanded on arbitral doctrine in respect of suspensions pending determination of criminal charges and is appropriately referred to as a test of the employer's conduct here. There is, of course, much authority - -9- for the proposition that an offence committed against the employer - or directly related to the employment relationship will justify disciplinary action, including suspension until disposition of the charges, although the effect of such a suspension may in some cases amount to an election by the employer to have its disciplinary action stand or fall on the outcome of the criminal trial: Re Ford Motor Cormmy (1951),3 L.A.C., 89.2 (Cross); Re Moffuts Limited (1956),6 L.A.C., 327 (Anderson);.':Re.Canada'~Fire'~.Cable Limited (Ig63),16 L.A.C., 240 (Fuller); ore Pre$to?i Mines Limited 11967),18 L.A.C. 64 Ukmrahan); Re Enton Springs Limited (1969),21 L.A.C., 50 OIanrahan); Re Toronto Star Limited 119721, 24 L.A.C., 187 (Rayner). The present case, however, does not fit into the pattern of those arbitrations, since the event of February 28 was not in any way an offence against the employer nor was it directly connected with'the employment relationship. In Re Millhaven Fibres Ltd., Millhaven ‘Works 119671, l(A) U.M.A.C. 326 (Anderson), a board of arbitration summarized the jurisprudence applicable to a case where an employee has been discharged for conduct away from work Gt p.3291: There are a wmber of arbitration cases which deal with disciplinary matters arising out of the conduct of an employee at a time when he is not in the Plant. Genemlly speaking, it is clear that the right of management to discharge an emp2oyee for conduct amy from the Plant, depends on the effect of that conduct on Plunt operations. In other words, if the discharge is to be sustained on the basis of a justifiable reason arising out of conduct away from the place of work, there is an onus on the Company to show that:- L 3 - 10 - (1) the conduct of the grieuor harms the Company’s revkation or product - (21 the griever ‘s behaviour renders the employee unable to perform his duties satisfactorily (31 the griever’s behaviour leads to refusal, reluctance or inability of the other employees to work with him (4) the griever has been guilty of a serious breach of the Criminal Code and thus rendering his conduct injurious to the general reputation of the Company and its empZoyees (51 places difficutty in the way of the Company properly cwing out its function of efficiently managing its Works and efficiently directing its working forces. These tests have subsequently been adopted in other arbitrations as appropriate to the case of a suspension pending trial of criminal charges arising from such "off-duty" conduct: ‘Re ‘Dorr-OZiueFLong .Limited (1973),3 L.A.C.. (2d), 193 (O’SF&). Indeed, at the basis of all of the jurisprudence in this area is the notion that, to have any~right to invoke disciplinary procedures against an employee charged with a criminal offense for conduct not directly related to the employment relationship, the employer must demonstrate a nexus between the conduct alleged and legitimate and substantial interest of the employer which would be prejudicially affected by the continued presence at work of the employee: Re Saunders Aircxft Corpdration Limited (19?3), 5 L.A.C. (Zd), 10 (bfaclem); Re Air Canada (19731, 5 L.A.C. (Zd), 7 (Andrevs); Re Phillips Cables Limited (19?4), 5 L.A.C. 12dl, 274 (Adams); Re Steel Company of Canada Ltd. 119?4), 5 L.A.C. t2d), 415 (Stewart); Re Dominion Stores Limited (1974), 6 L.A.C. (2d), 373 (Johnston); Re Treasury Board and Guenot 119741, 6 L.A.C. (Zd), 400 ISinrmons); Re York Trading Company Limited (19741, 8 L.A.C. tZdl, 214 (Palmer); Re Bundy of Canada Limited, Sinterings Division (1975/, 9 L.A.C. (2dl, 141 (O’Shea); Re Air Canada (19754 10 L.A.C. (Zdl, 346 (Morinl. In our view, there is . . - 11 - nothing in Policy 6-15-1, from which we quote above, which would offend against the basic principle of the cases cited. On the other hand, the arbitrators have also been-careful to assert a countervailing right of the accused employee to assert contrary interests equally deserving of protection. The award in Re Phillips CabZes’Limited, supra, describes the dilemma as tie11 as it may be described (at page 273: The question is a most difficult one because arbitrators are asked to choose between trJ0 very legitimate but confZicting interests. One interest is that of the company to operate its activities in on efficient and orderly W. An employee charged w-ith a serious crime, particularly if that crime is alleged to have been conrtitted against the company, can be qualitatively distinguished from other employees. His existence in the work force can cause real hardships to both the employer and other employees. For example, a man charged with rape and assault causing bodily harm might encounter difficulties in dealing with a company’s customers or its empZoyee8. The customers an.3 employees may prefer not to deal with the man until his status has been detezwtined by the Courts and this may have serious economic consequences for the employer. Consider the folZowing analogy. Suppose an employee exhibits all the symptoms of a rare and very contagious tropical disease and it takes months to assess whether he has actually contracted it. Should his fellow employees bear the risks of contagion until the scientific fact is determined? And should the employer econom-icaZly support this employee if one concludes that he shouZd be taken out of the work force pending an officiaz detemrtination? The employer ar.gues that he did not cause this misfortune and therefore he should not beg forced to share in it. That is one interest-the employer’s, The other compeZZing and confZicting interest is that of the innocent employee. An employee charged with a crime (or subject to the risk of having contracted a very harmful disease) - 12 - has an interest in maintaining his source of livelihood untiZ his status has been accuratety and fairly detelrrined. Moreover, the empzoyee who is not convicted of the crime (or found not to be subject to the disease) can, with hindsight, point to this fact - the fact that, em&icaZZy speaking, he was not a risk to his feZZow empzoyees or the company. He can cZaim that he was mistakenzy branded as a potentiat criminal or medicaZ risk. Therefore, because he is completely innocent and free of any wrong doing, he argues that the company must bear the risk of his innocence if it wants to suspend him. Later Et page 274 the award describes as "a touchstone for arbitral guidance in this area'! the following excerpt from Re Moffats Limited, supra, [at p.329-3@: An employer, in my view has no right to suspend an empzoyee mereZy because he is suspicious of that employee’s honesty, but, a company not onZy has a right, but has a responsibizity to itseZf and to its emvloyees to decide in the first instance whether or not it shouZd suspend an employee if, in the comvany ‘8 judgment his continued empzoyment tJil1 adversely affect the order and efficiency . of the company's operations, and therefore affect adversely the empzoyment of its other employees. Would the company under the circumstances in this case have been abZe to maintain order and efficiency if it had not suspended its empZoyee pending trial in the courts who has been charged after investigation by the police authorities with theft of a fellow employee’s pay envelope? In Re Treasury Board a7?d Guenot, supra, an addudicator acting under the Public Service Staff Relations Act, R.S.C. 1970, c. P-35, as amended, placed a further restriction on an employer's right to suspend pending the outcome of criminal charges Gt p.4053: The Zast three mentioned decisions appear to indicate fairly clearly that an empZoyer does not have an untrmeZZed right .to suspend an - - 13 - employee who has been arrested and charged with an offence. Neither can an empzoyer compzetely disassociate himself from the affair to amit the disposition of the matter by the Courts. . . Rather, the emptoyer has a responsibility to consider the employee in all aspects of the circwnstunces. Of course, the arbitration decisions seem to be unanimous in saying that the empzoyer has a right to consider what effect the suspension wouZd have on its business operation by retaining the services of the employee as well as considering the efficiency and moraZe of the other empzoyees. - In particular, the adjudicator held that, where too long a period would elapse between arrest and trial, the employer could not stand idly by and await the outcome of protracted court proceedings, but rather must reach its own conclusion based on the facts available. We turn now to a consideration of the present base. In our view, it is virtually beyond.question that the Deputy Minister had before her, on April 21, 1976, sufficient data to justify her in an apprehension of the possibility of danger to staff or inmates of the Rideau Regional Centre, or of the possibility of disruption to the operations of the facility by reason of the grievor's presence at work. The evidence of the nature of the alleged offence, of the antecedent threat of violence of a similar nature. to another employee, of the instability of the grievor's emotional state and of the job-related stress he was undergoing clearly constituted sufficient grounds to suspend the grievor from employment. Moreover, the ultimate disposition of the case confirms, to some degree, the propriety of the Deputy Minister's conclusions. The grievor pleaded guilty to a lesser charge, it is true, but the lesser charge still - 14 - involved a specific violent intent which would satisfy the tests Set out in 'Re.MiZhatcat:FiGres'Limited, a.pm. The next question to be determined is whether an'indefinite suspension pending trial of the charges was an appropriate response in all the circumstances. We are equally satisfied that it was. This is not a case where, as in Re ~Tredsz@'Bcia%~&id Gumot, suura. the employer simply waited passively for the outcome of a prosecution. It is clear that Mr. McNamara's visit to Smiths Falls was for the purpose of gathering information, and we have already indicated the extent of the evidence available to the Deputy Minister. True, she did not convene the "hearing" expressly provided for by the statute and regulations, but she certainly "considered' the case in the sense that the adjudicator required in 'Re'Treas~'Bodrd'and'Guenot, and quite possibly in sufficient detail to satisfy s.31(1) and (2) of the Regulations. In our view that consideration was properly directed not to the guilt or innocence of the grievor on specific - charges but to the effect the charges would have, cumulatively with the other relevant factors, on the operation of the Centre were the grievor to be employed. Nothing in particular turns on the delay of the official hearing; there is no specific requirement to hold it at any particular time (indeed this Board has recently decided that, given the state of collective bargaining between the parties, there is no legal necessity to hold such a hearing at all: g Feqquson and'tinistzy of 'Industry and Tourism, 35/76). Moreover, the reasons given for a delay in the hearing were clearly and properly related to the grievor's own interests and the prejudicial effect that a formal hearing touching on matters before the criminal courts - 15 - might have on the defence being prepared for the grievor in respect of those matters. In this respect, it.is noteworthy that the evidence before us shows no exception was taken by the grievor's solicitors in the criminal matter when this reason for delay was advanced by the Deputy Minister. If the grievor were to be allowed, through his solicitor, to simply let this explanation slide by without being held to have elected to accept it, he would be taking double advantage of the delay of the hearing: he could first proceed with his criminal defence unprejudiced by a formal hearing into his conduct, and he could subsequently raise the delay as a flaw in the process of his suspension. The final point for our attention is whether, having been reinstated effective October 21, 1976, the grievor can properly claim to be entitled to ask for reinstatement to April 21, 1976. At the outset, we reject the suggestion that nothing had happened between those two dates that would bear on the grievor's ability to perform his work. First, by the terms of his release on bail, and by the fact on his incarceration for three months, we had been prohibited from breaches of the peace, from contact with firearms and from use of alcoholic beverages for some eight months following the February 28 incident. Second, he had accepted, by the terms of his probation, similar restrictions on his freedom of action for a further period of two years. Third, he had carried out the custodial part of his sentence and had paid the price of the offence he had committed. It is perhaps not fashionable to regard imprisonment as a salutary experience, and indeed it often is not; nevertheless, the sentence imposed on the grievor was a humane one and one calculated to bring home to him the seriousness of his - - 16 - conduct, and it would not be unreasonable to treat it as of benefit to the grievor. In our view, it was open to the Deputy Minister to conclude that some disciplinary action was required to bring home to the grievor that his conduct could have equally serious consequences for his employment as for his freedom. In the result, this might have been the effect to the present suspension. On the other hand, we do not wish to be considered to have concluded that a disciplinary motive, in the sense of punishment, is essential to the validity of the suspension. The protection of legitimate employer interests, quite apart from any desire to punish, serves a sufficient "disciplinary" function to permit the Deputy Minister to conclude, following investigation, that there is no need to reimburse the grievor for salary lost during the suspension. Finally, however, we would only be willing to consider the employer's action in reinstating the grievor as derogating from the propriety of its original action in light of the clearest evidence that the subsequent reinstatement amounted to some sort of admission of a previous error. To do otherwise would be to discourage the employer from any reinstatement in the future lest its benevolence be held against it. We are of the view that the provision of special leave without pay during the periods of incarceration and the reinstatement of the grievor upon certain conditions designed to ensure his rehabilitation are actions worthy of an enlightened and fair-minded employer, and strike a balance between~the preservation and rehabilitation of the employment relationship and the protection of the employer's legitimate interests - - 17 - in a way which could well serve as a model for other employers, and even other Ministries of this employer. Such conduct is to be encouraged, and we would be loathe to draw adverse evibentiary inferences from such conduct without very compelling reasons. In the present case, no such reasons exist. - In the result, therefore, the grievance is dismissed. We wish to express our thanks to the parties for their helpful agreement on the facts and for their careful and thorough presentation of the case. Dated at Toronto this 23rd day of March 1977: K. Swan Chairman I c0Pzcv.r \ P. Harris Member I concur W. Walsh Member