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HomeMy WebLinkAbout1977-0030.Chapman.78-06-08Ontario CROWN EMPLOYEES :416/598 0688 GRIEVANCE SETTLEMENT BOARQ 30177 ._.. - suite 2100 180 Lbndas Street West TORONTO, Ontario M5G 128 IN THE MATTER OF AN ARBITRATION Under The CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD L Between: Mr. N. Chapman And (Grievor) Before: Ministry of Agriculture & Food [Employer) Prof. K. P. Swan - Vice-Chairman Mr. J. H. Morrow - Member Mr. H. Simon Member For the Grievor: Mr. R. Nabi, Grievance Officer Ontario. Public Service Employees Union 1901 Yonge Street Toronto, Ontario For the Employer: Ms. Corinne F. Murray, Counsel Hicks, Morley, Hamilton Suite 1201, Royal Trust Tower Toronto, Ontario Hearing: May 9th, 1978 Suite 2100, 180 Dundas St. West Toronto, Ontario -2- The present grievance came before the Board on the basis of an agreed statement of facts, which we reproduce in its entirety: 1. Griever was absent from work on October 14, 1976. 2. Griever did not have the employer's permis- sion to absent himself on October 14th, 1976 3. Discipline imposed against yrievor for being absent without leave on October 14, 1976, was a fine of one day's pay. 4. Griever has an otherwise unblemished record. 5. Griever's attendance record is otherwise satisfactory. Evidence was led viva vote in addition from Mr. R. G. Johnston, -- Associate Director of Personnel for the Ministry, to the effect that "fines", deductions from remuneration due of a monetary penalty without suspension of the penalized employee from work, had been levied from time to time by the Deputy Minister of this Ministry, and that the practice had not been challenged before by the employees concerned. We begin by noting that the occurrence of absence from work from which the matter arises took place on October 14, 1976, a day on which, as everyone concerned with employment relations knows, a National Day of Protest against the Anti-Inflation program took place. Although both parties touched on that issue from time to time in the hearing before us, there was no proof offered by the Employer of any direct connection between the present case and the Day of Protest, and no evidence of the concerted action or absence in the face of a -3- direct order which has characterized many of the other "October 14" cases heard by arbitrators in recent months. As a consequence, we consider that we have been presented with a simple case of absence without leave, and that neither opprobrium nor special consideration attaches to the grievor's conduct by reason of the date on which he was absent. In our view, to treat this case otherwise in the absence of specific evidence would be to act on improper inference and suspicion, and would exceed our jurisdiction. The grievor did not present a defence against the substance of,the allegation against him, as can be seen from the agreed statement of fact, and so the matter before us turns entirely on our jurisdiction under s. 18 (3) of the crown Employees Collective Bargaining Act, S.O. 1972, c.67, as amended, which provides: (3) Where the Grievance Settlement Board determines that a disciplinary penalty or dismissal of an employee is excessive, it may substitute such other penalty for the discipline 01 dismissal as it considers just and reasonable in all the circumstances. The Employer advanced a number of arguments against any exercise of our jurisdiction in this case, including the fundamental and novel assertion that the Grievance Settlement Board has no juris- diction in such cases to alter the penalty imposed once it has been determined that just cause existed for some discipline to be assessed. This argument is based on the provision, in o. Reg. 749, .s. 31(3) (b), a regulation promulgated under the authority of the Public Service Act, R.S.O. 1970, C. 386, as amended, of a discretion by the DepUty Minister, in certain circumstances, to levy a fine against an employee. The material -4 - part of that provision reads: (3) Where a public servant, (b) absents himself without permission during his prescribed hours of duty; and where, in the opinion of his Deputy Minister, the circumstances do not amount to cause for removal from employment or dismissal under section 22 of the Act, the Deputy Minister, of an Official of-his ministry who is authorized by him, may, after a hearing, impose a fine equal to not more than five dayspay. The Employer's argument is that, because a specific discretion is vested in the Oeputy Minister, the Grievance Settlement Board has no jurisdiction to alter a penalty imposed,unless the regulation has been ousted by a collective agreement as is provided in S. -W(s) Of the Public Service Act. Although Ms. Murray put this argument as well as it could be put, we regret that we are unable to accept it. Our general jurisdiction in disciplinary matters comes from S. l?(z) of the crown mpl~yees Collective Bargaining Act, and is expressed to be "in addition to any other rights of grievance under a collective agreement." Furthermore, our specific jurisdiction to substitute penalties in disciplinary matters comes from a statutory provision, and statutory provisions must of necessity override, to the extent that they are in conflict with, regulations. In our view, therefore, the Deputy Minster's discretion to impose a fine under s.31 (3) of o.'~~eg. 74emust~be understood to be subject to review before the Grievance Settlement Board and,.in an appropriate case, -5- subject to reduction. Given the similar language and in s. 22 of the public service Act itself, which authorizes a Deputy Minister to suspend or dismiss employees and our jurisdiction over which has never been questioned, the interpretation urged by the Employer would, if accepted, leave s. 18 (3) of the crown Employees Collective Bargaining Act virtually bereft of meaning. The major issue between the present parties is whether a "fine", that is to say a monetary penalty deducted from salary without an accompanying suspension, is an appropriate form of penalty. Considerable discussion was directed to whether or not we had jurisdiction to deal with this matter and, if we did, what conclusion we should reach. In the view we take of this case, however, it is unnecessary for us to determine this issue and, despite its obvious importance, we prefer to leave it until a case when it properly arises to be determined as a part of the decision of this Board. We take this position because we have concluded that the actual penalty imposed on the grievor in this case is excessive and unjustified by the evidence placed before us by the Employer in support of its action. The Employer argues that a fine of one day's pay was the minimum fine which could be imposed, and therefore it cannot ipsofacto be excessive. In our view, given the unblemished record and the satisfactory attendance of the grievor disclosed by the agreed statement of fact, any financial penalty beyond loss of pay for the day missed would be excessive. This is clearly a case -6- for a reprimand and a warning, in the clearest possible terms, and we therefore substitute such a penalty for the fine imposed pursuant to our jurisdiction under s. 18 (3). We note in passing that any evidence of aggravated conduct, such as insubordination, refusal of a direct order not to be absent, or of collective action, might well have produced a different result. On the state of the evidence presented, however, we are satisfied that the penalty we have substituted is the just and reasonable-one in all the circumstances. The fine is thus rescinded, and the grievor is entitled to be compensated accordingly. This award constitutes a reprimand and a warning to the grievor that a repetition of such conduct may lead to more severe disciplinary action in the future. Dated at Toronto this 8th day of June 1978. K. P. Swan Vice-Chairman I concur J. H. Morrow Member I concur H. Simon Member