HomeMy WebLinkAbout1977-0040.Sauve.77-07-08Ontario 40177
CROWN EMPLOYEES
GRIEVANCE SETTLEMENT
BOAR0
41.6 964-6426 Suite 405
77 Bloor Street West
TORONTO, Ontario
M5S lM2
IN THE MATTER OF .AN ARBITRATION
Under The
CROWN EMPLOYEES COLLECTIVE BARGAINING ACT
-Before
THE GRIEVANCE SETTLEMENT BOARD
Between:
Before:
Mr. B.. Sauve
' And
Ministry of-Correctional Services
K.P.Swan'
E. J. Orsini
;6/$hainnan
S. R. Hennessy Member
For the Grievor:
M. N. Gagne, Staff Representative
Ontario Public Service Employees Union
Ottawa, Ontario
For the Employer:
Mr. J. F. Benedict
Personnel Branch
Ministry of Correctional Services
Hearinq:
April 19th, 1977
Suite 405,
77 Bloor St. W.,
Toronto, Ontario
., c
2.
The grievor in this matter complains that he was, on
December 2, 1976, discharged without just cause from his
employment at Champlain School in Alfred, Ontario where
he was a Supervisor of Juveniles 2. Two reasons were given
for the discharge by the employer, that the grievor had
failed to maintain a satisfactory record of attendance, '
and that on the evening of October 12, 1976 he failed
properly to supervise wards in his care.
The parties were able to agree upon a detailed statement
of the grievor's work history, and this was admitted as evidence
on the understanding that it would be used to assess the
appropriateness of the penalty 'levied only if the employer
succeeded in discharging the onus of proof that the grievor
had acted in a way which merited discipline on the specific
occasion at issue. This is the so-called "culminating incident"
doctrine, which has already been thoroughly discussed by this
Board in Re noble, 6/75 and, in circumstances most relevant to
the present case, as will be seen, in me MOSS, m/76. Me therefore
put the employer on notice that, for the record of'past offences
to be considered on the present occasion, we would have to
be satisfied that discipline was appropriate for the alleged
culminating incident.
Leaving aside the grievor's record for the moment, we
turn to the allegation that he failed properly to supervise wards
in his care on the evening of October 12, 1976. We received
much detailed oral testimony on this incident and it was generally
not in conflict. At about 11 p.m. Mr. Gerard Seguin, the school
security officer, who was doing his rounds on the school property,
saw two boys outside the school buildings. He reported this
to the head supervisor on duty, Mr. Bernard Arcand. They were
uncertain whether the boys spotted were boys from the town
or wards from the school who were absenting themselves without
leave, and so Mr. Arcand went to investigate. First, however,
he telephoned the grievor,who was in charge of the residential
unit near where the boys were seen, to enquire if any of his
wards were missing; the grievor replied that none were.
Shortly afterwards (approximately 10 minutes), the grievor
called back to inform Mr. Seguin that two boys were indeed
absent, and Mr. Seguin relayed that information to Mr.
Arcand by radio. Mr. Arcand then returned to his office and
spoke to the grievor on the telephone again. When informed
that Mr. Arcand may have seen three boys altogether during
his investigation, the grievor checked again and found a
third missing from his bed. The boys were found and returned
later to the custody of the school.
The above is, stripped of its detail, the essence of the
employer's case against the grievor. There is no evidence
that he acted improperly, that he was derelict in his duty,
or that he directly contributed to the absences of the boys,
except for the inferences which we were asked to draw from
the evidence that he at first did not report any absences,
and that he subsequently noticed only two absences. Whether
it is proper to draw an inference of improper supervision
from these facts must be determined in light of the grievor's
4.
own evidence as to the incident.
The grievor's story essentially confirms the facts set out above,
but denies any adverse inferences should be drawn from those facts. He
was, he asserts on duty'as required; he investigated what he thought to
be the sound of an opening doorwithout seeing anything amiss, and he
did not see 'any other movement or sign of the escape. When he was
first asked about the absences, he replied, from the impression that
he had that all was well, that no one was missing. A subsequent check
on his own initiative revealed two of the absences, and a specific
suggestion of a third absence triggered another search which produced
the third name. In his view, he was simply tricked by the boys, and
he had acted properly throughout in accordance with all the usual
practices.
On all the evidence, and particularly in light of the fact that
there are a large number of absences without leave from the school,
as many as two or three each month, and that nine of the sixteen
boys under the griever's custody on the night in question were
definite absence risks, we have reached the conclusion that the
employer has failed to demonstrate that it had just cause to discipline
the grievor for improper supervision. The evidence is, at its strongest,
equally as susceptible of the inference that the grievor was the victim
of a clever escape as of the inference of guilty negligence urged by
the employer. The onus of proof is on the employer, and that onus has
not been met in this case.
Turning to the other allegation, that the grievor had failed to
5.
maintain a satisfactory record of attendance, we are obliged to note
that this allegation is, in many ways, bound up in a consideration of
the past record. In Re MOSS, 62/76, the Board adopted the View,
without any real discussion, that a culminating incident was necessary
to invoke a record of absenteeism in order to justify a discharge.
On reflection, we think that this is indeed the correct approach. As
long as the record of absenteeism remains in the past,, hope remains
that a grievor has mastered the situation and is able to re-establish
a proper relationship with the employer. As the Board stated in
me Stewart, 27/76, both the past record and the future prognosis must
justify the imposition of discharge as a penalty for absenteeism.
In the absence of a culminating incident, it would be idle speculation
to determine that the future prognosis is totally bleak.
Here the employer relies upon the absence of the grievor from
September 23 to 28 inclusive and from October 1-7 inclusive, and
suggests that this constitutes a culminating incident. Indeed, it
might, but for a letter written to the grievor on September 21,
1976 by Mr. A. F. Daniels, Personnel Director for the employer, which
clearly sets out the guidelines for future absences by the grievor
in the following terms:
III light of your past attendance record
I am hereby requiring you, under Article 13.7
of the Employee Benefits Agreement to submit
a satisfactory medical certificate for each
and every absence which is allegedly caused
by illness. This requirement will remain in
effect until such time as I have reasonable
cause to withdraw it, and the matter will
will be reviewed in six (6) months time.
You are also advised that your performance
6.
will be monitored closely and we will expect
it to be maintained at a satisfactory level.
Failure to provide satisfactory certification
for absences or to maintain adequate per-
formance levels will resu1.t in your immediate
dismissal.
I
For the absence in question, the griever produced a certificate from
his physician which indicated that he had been hospitalized from
September 27 - October 7 for "alcoholic withdrawal, trauma Cleft)
eye, hypertension and diabetes". Although Mr. Benedict characterized
this certificate as not satisfactory, we are at a loss to know just
how it is unsatisfactory. True, it relates to the grievor's
alcoholism, which is the nub of the past record sought to be
introduced in justification, but it also relates to other serious
illness as well. There is no evidence that the employer requested
any further details of the reason for absence. Having put the grievor
on notice that hisattendance record wili beg reviewed in'six months,
the employer can hardly be justified in invoking the first occasion
of subsequent absence, for which he provided the required certification,
to discharge him.
In the result, we find that there was no culminating incident
of either kind proved by the evidence adduced by the employer, and
that therefore this grievance must succeed. Ordinarily, we would thus
consider the evidence of past conduct inadmissible to support the penalty
exacted, and would refrain from comment thereon.
In the special
circumstances of this case, however, we think that we would be
derelict in the special relationship a statutory arbitration tribunal
has to the parties for whom it is the sole source of resolution for
3
unsettled disputes if we did not connnent further. We recognize that
to do so is beyond the jurisdiction which the law permits us, and
that our comments therefore have no binding effect. We make them,
rather, for the assistance of the parties~ and particularly for the
guidance of the grievor.
We recognize that the employer has gone to considerable lengths
to attempt~to rehabilitate the grievor and to help him cope with his
alcoholism. We consider this as a sign of an enlightened and
compassionate employer, and we can find no fault in the efforts made,
from time to time, to re-establish a proper employment relationship
for the grievor. The obvious corollary to such a rehabilitation program
is, however, that employees who do not respond must eventually be
terminated. A rehabilitation program which does not differentiate
between.its successes and its failures can hardly -be~justif.i.ed.--As,.,.,-
this Board pointed out in ~R~'MOSS, 62/76 (at p.25)
however tragic the circuinstances, the
employer is entitled to protect itself
and its other employees from the very
real and often significant costs that
can result from an employment record
such as Ithe griever's)
We would not, therefore, wish to create any false impression: for
the grievor that he had in any way been exonerated by this decision.
The law as to the requirement of proof of just cause for discharge is
clear, and once the vital link of a culminating incident is missing
this Board cannot act on its own view of the employee's past record
any more than it can allow an employer to do so. The clear separation
between culminating incident and past record must be maintained,
.s u
a.
particularly because the Board fully intends to continue its practice
of hearing evidence of a past record while reserving its decision
on the existence of a culminating incident. To intermingle the two /
would, at the very least, throw that practice into doubt.
The grievor has, therefore, received another chance because
of a technicality. We are confident that the employer will continue
to assist the grievor in his attempt to cope with his alcoholism.
How he uses that chance to rehabilitate himself and re-establish a
favourable employment situation is entirely up to him. We have
little doubt, however, that if he does not use it properly it will
most likely be his last chance.
As a necessary result of our findings above, the grievance is
allowed, the grievor is to be reinstated effective on the date of
his original suspension, and he is to be compensated for all losses
occasioned by the suspension and subsequent discharge. As is usual,
the Board will retain jurisdiction in the event the parties are unable
to agree on the implementation of this award.
Dated at Toronto this 8th day of July 1977.
gee
K. P. Swan
Vice-Chairman
I concur
E. J. Orsini
Member
I concur
S. R. Hennessy
Member