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HomeMy WebLinkAbout1979-0203.O'Keeffe.81-08-31203/74 IN TIiE MATTER OF AN A2sITRAT~ION j. ., I; under The CROWN EMPLO'IEZS COLLECTIVE: BASGAINING ACT -' P*'tween: Before: aef0re TXE GRIWANCE SiT.TLEY,EN? B0AP.D \. Mr...E-':iard W. O'Kee,f.Ze G,riEVar - .*nd __ . _ The Crown 'in Rigtit of Ontario I (Ministry 05 Corrsctional Service's) m?i&er Prof. P. Y. . 5a'rton Vice Chairman' HK . R. Russell .,Yember Mr. A. G. Stapleton Sember : For the Employer: Mr. P. D. iian'tiorfie, Representative Ministry of Correctional Ser.vices I For. the Griever:. Mr.,R.. Nab-i, Grievance Of_ficer Ontario Public' Service Znployr-es'L;niOn Hearing: --- duly 23, ia81 . - 2 - AWARD In a grievance dated May 4, 1979 the Grievor, a Correctional Officer 2 at the Guelph Correctional Centre grieved a five day suspension imposed April 19, 1979. The Board has jurisdiction under Section 17 CECBA and there were no cues tions concerning our jurisdiction or preliminary objections. A summary of the facts miqht be useful. April 15, 1979 was Easter Sunday. A multi-denominational church service was held in the chapel which is contained in a building set apart from other parts of the Institution. A number of volunteers, Salvation Army ?ersor?nel, Baptist businessmen, and other civilians were present. The inmates were supervised by the Grievor and 3ruce Gilbert a CO3 Corporal. At the back of the chapel is a small area reserved for smoking to which inmates at two or three at a time retire to smoke during the church service. At the same time guite often one or other of the Correctional Officers make use of the facility. 3ne of the allegations about the Grievor was that he was using profanity in discussions with inmates during the chapel I service while in this area. Following the service many of the inmates and civilians went downstairs for tea and cake. This is consumed in an area below the chapel adjoining which area there are a number of small rcoms One of these rooms is an art supply room and the second allegation concerninq the Grievor was an alleqation that he swore at Xr:Gilbert in the presence ofin:ratesin this area, which profanit? . -3- could be overheard by some of the civilians. Following tea and cake, the inmates went to lunch. At approximately 12.~00 o'clock the Gr~ievor booked.off sick for the afternoon;. The, third allegationconcerning his conduct:is an allegation that he was not sick. The Grievor has been employed by the Ninistry since July-7, 1975: On Saturday, April 14'he wasat work and he asked.Lieutenant Wilson'if it would.be OK if he took a "special" on the following afternoon- A special is's half day off or more wh.ich is. earned by working on scheduled.vacations. If an-employee iia~s earned suffikient credits the"employee is.allowed to take a I special if other staffing requir'ements a.re met. On Saturday Lieutenant Wilson said,that it would probablybe all right that the Grievor should ask'on the next morning, i.e., April 15. On the morning 'of Sunday the Grievor awoke following a restless night‘ with. a stomach upset. It appears that he had an ulcer at one time. He stated in his. evidence thathe did not wish to take sick time and figured out that he'could spend four hours and then go home.' He .went to work and reminded Lieutenant Wilson of the'half day special he had requested. .He was told to see Duty Sergeant,Harkness; He called Duty'Sergeant Harkness and requested the time ,off; Darkness 'said that it was OK.as long as he had sufficient credits..in the bank. The Grievor then went to the chapel where he supervised the services with Constable Gilbert: He indicated that. althouqh'he had been back in the smoking area at various times he did not talk to the inmates .;. . . ..,. r ,.~, ..--. . -4- and did not use profanity in that area. Following the services he went downstairs and it was his evidence that Gilbert told him to open up the art supply room. \ He obtained a number of keys from Gilbert and could not find the riqht one and asked Gilbert to show him. Gilbert opened the door and some inmates went in and qot some supplies. A few minutes later said the Grievor, "Gilbert said the door should be closed': He handed the keys to the Grievor who tried to lock it. Gilbert was right behind him and he was having some difficulty finding the correct key. The Griever indicated that Gilbert said "What's the matter you fucking dummy,can't.you find the right key?" He replied "If you're so fuckinq clever. here are the keys,. lock it yourself." Apparently Constable Gilbert did this and it was the Grievor's evidence that Gilbert did not seem to be unhappy and they both went about their business. While Constable Gilbert was taking the inmates to lunch, the Grievor locked u? in the chapel area, went into the main part of the institution, saw Lieutenant Wilson who was on duty. He told Lieutenant Wilson he did not feel very gocd, was incapable of doing his duties, and had to go home sick. Apparently Lieutenant Wilson nodded, and the Grievor siqned out at 12:05 and had his wife pick him up. When the Griever arrived home he did not feel like eating lunch andlaiddown until ~~50 p.m. Secause he was still feeling badly he dccidcd to see a doctor, had a bat11 and went to the ,emerqency department of St. Joseph's Hospital. He was seen there -5- by Dr. S. Kauslik who told him to qo and take and antacid and take it easy and go back to work the next day. Dr. Kauslik gave him a note, which said ':The above named patient,was seen in emergency here today.,He should b.e able to return to work tomorrow." The. Grievor's superiors alleged that he conducted -himself in a manner unbecoming a Cqrrectional *Officer which could have brought disfavour upon the Ministry. OnApril 18, 1979 a meeting-was held concerning this. On April.19 the Grievor received a letter in whi-ch ,if was indicated that the allegations concerning swearinq,were ~accepted, that the,Grievor had improperly left on the afternoonof the lSth,. and continued: i .; : "I feel that this incident .is another indication of your continuing deterior.atinq of attitude-toward your.job and the Supervisory Personnel of this Institution. Further it is my decision that you be ~suspended without pay for a.period.,of five, days and that any further.incidents' o'f this type- I will certainly be considering a.harsher penalty not discounting dismissal'." On April 19 the- Grievor obtained a second medical certificate from Dr. : Kauslik which reads as follows: . . -. "Abdomina~l pain, hyperacihity and fever. Arrived at emergency department. at 15:08 hours." Apparently this document was not considered atthe meeting Of April 18, oecause it was.not then in existence. The evi~de~nce of Corporal Gilbert wasinmany respects . diametrically, opposed to that given by the Griever. This of cours,e makes our job considerably more difficult. 4e indicated : ,‘: -6- that during services the Grie,.'or was at the back of the chapel and was usinq ;Irofanity to inmates in cbnversation.He stated that he was unhappy about this and told the Grievor to keep it down. He did not tell the Grievor to stop. He indicated that following the service when they were downstairs at the door of the art supply room he had a verbal altercation with the Griever at which time the Grievor threw a set of keys at him and said "Why don't you get off your lazy cunt and do it yourself". He ind'icated that he was hesitant about complaining about this but called Lieutenant White and asked him to either replace himself or the Griever on the afternoon session. Later in the morning he sati the Griever who was disgruntled about being denied a,"special" and he indicated the Greivor said: "It's who you are that decides whether you get a. special, next time I'll phone in sick". Ue also indicated that the Grievor had said that he wanted to be off on the afternoon because at 2:00 3.m. there was a Canada-Czechoslovakia hockey game. Constable Gilbert also indicated that sometime after this incident he recei-Jed a cheese sandwich which was given to him by MT. hamilton apparently from Fr. O'Keeffe. Allegedly the Grievor also phoned Vr. Gilbert and asked him how he enjoyed the sandwich. 1n a prison the significance of a cheese sandwich is that it signifies that the person receiving it is considered to be a rat or someone who will tell on other people. J / . - 7 - Lieutenant John White, the Shift Supervisor at Guelph gave evidence in a forthright and candid way,which we have no reason to disbelieve. In the context of this.hearinq we found 5 ; that refreshing. He indicated that there~ ares regulations under _ the relevant pr'ovincial legislation prohibiting the employees from using profanity and discussing matters concerning other employees with inmates. It' is also contrary to the regulations for inmates to.use~profa~nity. The prohibitions against profanity are also contained “in stan~d>inq orders which cover'everybody employed in the Institution. ,_ ,. When he,heard 'from Harkness that the. Grievor was reque.sting 'a *'special" on the'afternoon of the 15th he checked the Gri"evor'~'~&edit and found.that he did'not have sufficient. it 'lOij5 a.m. he' took the credit book and met with the Griever in the chapel area and'told him.tiiat he did not‘have sufficient credit. The'Grievor'wished to use a half vacation day or borrow from future'credits or from a fellow employee but these were not allowed. Following this meetinq~he received a phone call from \ ,. Constable'dilbert stating that the Griever had been abusive in language infrbit of civilians and requesting that the Grievor be taken off chapel duty in the.afternoon. .Lieutenant White indicated that he told Gilbert that he would find~the G.rievor and counsel him,con.cerning this. Unfortunately there were other security problems in.the Institution which in'tervened'and when Lieutenant White went to find the Grievor in the afternoon he found that he ~tiad already gone home. Because the Greivor h'ad - a - ,.’ :*.. ‘. \ ‘:,, not indicated that he was feeling sick,. Lieutenant Khite was concerned and put in a report suggesting that disciplinary acticn be taken. As a general rule it appears that profanity is common among the inmates but profanity between inmates and staff is, not encouraged and profanity between staff members in the presence of inmates is discourged. The other significant evidence in this matter is that of Father Douglas McCarthy, SJ,the~ full-time chaplain at Guelph. It would be a bold Vice-Chairman who would disbelieve such evidence and we have no reason whatsoever to do so. He , indicated that he was on duty during the service along with two other chaplains, plus a former chaplain and although he circulated throughout the chapel he did not hear any profanity coming from the smoking area. He was asked by the Grievor to find out from other civilians who had been at the service, if they had cverheard anything and after talking to them, he indicated that they had not overheard anything either. At the request of the Grievor he wrote two letters setting, out his findings. Because there were a number of oeo?le milling around downstairs durinq the tea and cake session and because people wereplaying guitars and there was a lot of talk, he did not hear any swearing from the vicinity of the art supply room. The factual issues in this matter are more significant than the leqal ones. It is undoubted that because a discipline \. - 9 - is involved the'burden. o'f~proof is upon the Employer to it; The questions.in issue.are as follows:. justify 1. Did the Grievor .use profanity in the chapelarea? 2. If so, was it overheard by inmates or. civilians? ,3. 'Did the Griever use profanity-in the art supply room area. toward Constable' Gilbert?. 4. If so,' was 'this 'overheard by inmates or civilians? 5. Did the Grievor legitimately.take a sick leave in the' afternoon of'Apri1 15'; i' ~'~ On~‘the-first question werare.unanimously~of the view that the-evidence ,does not prove the use of profanity~in the chapel area. Even-if the'evidencg had'shown such use. w,e,are not satisfied bnthe evidence-that 'the inmates and certainly not satisfied that the civilians would have overheard'it: , . With resp‘edt' to.the' question of the profanity inthe art supply room area, the Grievor's own evidence,indicates that he used such profanity. Weare satisfied.that the Grievor did. swear at Constable‘Gilbeat and Mr. Nabi did concede that that might be'ground for a reprimand. Certainly Constable Gilbert was sufficiently concerned about it to call -Lieutenant.White, something which he would not do without some hesi.tation. The difficulty with the five day suspension is that it was imposed for abuse of sick leave and for bringing ~the Institution into ' disfavour. ,The latter reason implies that the profanity was overheard by'.somebody else and we are not satisf~ied that this was proven. Accordingly if zany discipline is justified in this matter it is because of the.swearinq at Constable Gilbert alone. .- (L , :’ ::., ‘: - 10 - with respect to allegations ccncerning abuse of the sick leave provisions, although we have what could be called grave suspicions, we think that the decision of the Supervisors might well have been different if they had had before them the doctor's certificate cf April 19. It makes a reference to a fever and we find it hard to see how a .competent doctor could ascertain that with out taking the Griever's temperature. We say that we have grave suspicions because the Employer had had suspicions concerning the use of sick leave by the Grievor. Indeed, the Employer had invoked Article 13.10 (now Article 51.10), which allows it to require-doctor's certificates if it is suspicious that sick leave is being abused. It is also significant that the Griever did not complain to anybody about feeling sick and only relied on the sick leave provisions when his attempts to obtain a "special'! failed. Despite this, we cannot ignore the valid doctor's certificate and find that the Employer has not proved to the degree required that the Grievorwasnot legitimately sick on the afternoon of A\pril 15, 1979. We reached this conclusion somewhat reluctantly and on the basis of a strict application of the burden of oroof requirements which require us to decide the case on the evidence and not on suspicions. lie do not wish the Griever to read into our Jxard any support for his conduct. The final question is what we shou,ld do about the swearing3 to Constable Gilbert. By virtue of Section lS(3) of CECBA we are authorized where we determine that a disciplinary penalty or dismissal is excessive to substitute such other c - 11 - 5.. _I penalty for the discipline or dismissal as we consider just and reasonable in all circumstances. The difficulty we have is that the five day suspension was imposed in oart for using profanity and thereby bringing the Institution into disfavour. The use of profanity to Constable Gilbert,. not overheard by inmates or particularly by civilians, couldtnot have brought the Institution into disfavour. Somewhat reluctantly we have decided that although the art supply incident might have justified some-discipline, it~would be for a reason not given by the~Employer and that it would be not proper for us to discipline the Grievor for some other reason. According the grievance is allowed and the letter of April 19, 1979 is directed to be removed from'the GrievorLs file and he is to be paid for the five days during which he was under suspension. Should there be.any difficulty with the amount of the payment the Board will remained seized of the matter. \ ! We cannot close without commenting upon the fact that one or more of the witnesses,in this matter either greatly exaggerated in their evidence or told outright lies. As has been indicated in other awards of this Board, such conduct makes our job particularly difficult and does not reflect with any ~degree of favour upon persons involved who know who they are. . ..I.; ‘i j;:. - 12 - DATED AT London, Ontario this 31st day of Au9ust, 1981 Peter G. Barton Vice-Chairman ._ ,. R. Russell Member A.G. Stapleton xember