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HomeMy WebLinkAbout1980-0202.Stewart.81-02-25IN THE MATTER OF AN ARBITRATION Under The CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD Mr. R. A. Stewart and The Crown in Right of Ontario Ministry of Correctional Services Before: For the Grievor: Prof. K. Swinton Vice-Chairman Mlrs. M. Gibb Member Mr. Henry Weisbach Member Mr. R. Nabi, Grievance Officer Ontario Public Service Employees Union Far the Employer:. Mr. W. Gasteiger, Human Resources Management Branch Ministry of Correctional Services December 15, 1980 - -2- This is a grievance in which Raymond Stewart grieves that he has been unjustly disciplined. The’ griever was employed on contract as a casual employee with the Ministry of Correctional Services from November 7, 1978 until March 31, 1980. By the terms of the two contracts governing his employment (Ex. 7, lo), he was to work as a Correctional Officer 1 at the iMetro Toronto East Detention Centre with normal hours of work not to exceed 24 per week. The grievance arose because the griever alleges that he was not called for work after December 6, 1979, following his participation in an illegal strike by correctional officers which took place December 3 to 6. This action, plus the refusal to’ renew his contract (contained in a letter dated March 13, 1980 and following by one day the Stage 2 hearing in his grievance), should be characterized as disciplinary, in his submission, and he should be awarded damages to compensate him for the failure to provide work in the months of December, 1979 to March, 1980. Casual employees are used to replace employees who are sick, on lieu days, on vacation, or absent “for various reasons. The alternative method of staffing would be by having regular employees work overtime. There were six to eight casuals employed at LMetro Toronto East Detention Centre at this time. They were called to work by a floor supervisor (ranked Correctional Officer 3. or Corporal) or sometimes by a shift supervisor (ranked Lieutenant), with the period of notice ranging from a few hours to a few days, Usually, the request for work came by telephone, although it was sometimes made while the casual was’at the institution. -3- The griever had a second job as a Process Server and Law Clerk with a lawyer, and this appears to have been a source of trouble in his work as a casual. He admitted that he turned down day or night shift work when this would interfere with his law clerk job. He also admitted that he turned down job offers when he was going away for the weekend or on vacation. Overall, he estimated that he refused job offers about 25% of the time. The griever said that he was offered work regularly until he took part in the picket line of correctional officers during the illegal strike from December 3 to 6, 1979. Stewart had worked December 2, but was not asked to work during the strike. He was later called and worked December 8 and 9, but he testified that he received no further calls. He then filed a grievance on January 8, 1980 on the basis of the lack of work. He testified that he was called and worked the night shift on January.29, 30 and 31. On January 28, he was offered work on the night shift for the following week, which he refused because he felt that two weeks of night shift work would interfere with his other job. He received no further calls in February or March, nor any response to requests for work, which he testified that he initiated four or five times. There was some discrepancy between the griever’s evidence on examination-in-chief and on cross-examination as to the regularity with which he worked and the calls received. This threw some doubt on his credibility as a witness. For example, he became quite confused as to -4- whether he worked on Christmas Day and New Year’s Day, saying that he worked both, then one, and then that he was not asked to work either. He also admitted that he was offered night shift work on January 17, which he refused. Furthermore, during this time, it appears that there was some question as to his availability for work, as he was wearing a cast for tendonitis for a two-week period, and this was known to at least one supervisor. He felt that he would still be able to work in some areas of the Centre, such as Minimum Security. The grievw would have the Board conclude that he was being disciplined for his participation in the strike by the refusal to call him to work and the non-renewal of his contract. It was the submission of the employer that there was no obligation to provide Mr. Stewart with any minimum number of hours of work per week and that the reason that he was not called was because he was not generally available for work. The possible link to the strike was, in the employer’s submission, merely fortuitous. The employer presented evidence from four supervisors to this / effect: Olivia Steane, Vern Parrish, Tom Davey (all Correctional Officer 3’s or floor supervisors) and Lloyd Robinson (Shift Supervisor). All testified that they found the griever to be unavailable when called; in comparison to other casuals. IMr. Parrish-had documented the January 17, 1980 refusal by I the griever in a report to the Superintendent. Mr. Davey and Mrs. Steane, in reports dated January 16, ~1980 and December 9, 1979 respectively, said that they found the griever to be unavailable, although without , -5- documenting any specific dates or times when they tried to obtain his services. Mrs. Steane’s report also complained about the griever’s attitude, both because the griever had challenged an explanation of the term “security risk” which she had given to him and because he was unreliable, having failed to ensure that the Segregation door, leading to the medical unit, was secure on one occasion. She had also counselled him about leaving his position while on duty earlier in the fall. Steane, Davey and Parrish said that they had not been asked to write reports and did so voluntarily and without agreement among themselves. Robinson, however, stated that he told the Correctional Officer 3’s to put their complaints about Stewart in writing to the Superintendent, without documenting when this was said.. There are several conclusions which can be drawn from the evidence presented. First, having considered all the evidence, we cannot conclude that the reason for the cessation. of calls to work lay in the griever’s participation in the correctional officers’ strike. Although the grievor claims that his relationship with management changed after December 6, we do not see this in the evidence. Exhibit 8 is a record of the total hours which the griever worked each month from November, 1978 until March 1980. In December, 1979 he worked 32 hours; in January, 1980, 24 hours. Both totals might have been higher if he had accepted work which he admitted was offered on January 17 and 28, and (in the employer’s submission) on Christmas, and Boxing Day, and New Year’s Day. Even without these extra hours, the totals in the months of December and * C’ -6- January were not out of line with the hours worked in other months in the past: April, 1979 - 16 hours; May, 1979 - 32; June, 1979 - 24. While the griever often worked 48 or 72 hours, the totals varied drastically. Therefore, it would seem strange that the grievor concluded that he was being punished in December, and not at earlier periods when his hours were less than the maximum. The disciplinary claim seems fortuitous, because of the occurence of the strike. Otherwise, there seems no reason to distinguish April and December, 1979. The most telling consideration weighing against the griever’s claim, however, is the nature of his contract. The employer offered him a contract as a casual employee. No assurance was given that he would work 24 hours per week and 96 hours per month. In fact, in only one month (July, 1979) did he work 96 hours. Hours varied month by month. It is clear that the offers finally ended, but it would appear that the calls to the grievor fell off because the floor and shift supervisors, who were responsible for calling the casuals, had come to the conclusion that he was not generally available and therefore, it was no use calling him.~ Some, at least, seemed to feel as well that his work and dedication left something to be desired and, for that reason, as well, they chose not to call. There is evidence from the griever himself that he frequently turned down job offers because of conflict with his job as a law clerk. It is understandable that the employer would prefer to rely on casuals who ,were more generally available than the griever, and the evidence of the supervisors was that the griever was unusual in the frequency of refusals of -?- work. The griever’s day job interfered with his availability to the Ministry, and since there was no obligation to employ him, the employer chose to use other casuals. ‘The conclusion that we have reached, then, is that the griever was not unjustly disciplined. He did not make himself generaIly available for work, and the employer had no obligation to provide work for him. While the grievance will be dismissed as a result of these findings, we wish to express our concern about the evidence presented by the witnesses on both sides, The problems in the griever’s testimony were mentioned earlier. At this point, we wish to make some comments about the evidence of the four supervisors called by the employer. There was a distressing lack of:candour by all four of these witnesses, andseven hostility to the questions.of the union counsel by one. All four claimed that their reports about the grievor were written voluntarily and without request from others or by agreement with others. The coincidence and nature of the reports makes the submissions unbelievable - it seems strange that Mr. Davey, in January, just chose to write about the grievor’s tinavailability, not having employed him since early October; that Mr. Parrish at last wrote a written report on the January 17 refusal, even though refusals had happened before; that Mrs. Steane and Mr. Robinson both wrote on December 9,‘both mentioning unavailability and unsuitability, even though the only catalyst seems to have been a discussion between Steane and the griever at work about security risks. It would seem from the reports and the evidence of the supervisors that they all felt that the grievor was an -8- unsuitable employee, because of his attitude, which was evidenced in part by his lack of availability. They did not want him employed (as is clear from Robinson’s report), and they at least tacitly agreed to do what they could to end his work at Metro East Detention Centre. Because of the nature of the employment, they were able to do so., Their efforts to conceal this before this Board and the& refusal to. answer questions forthrightly makes the job of this Board more difficult. It is also disturbing conduct in those who hold supervisory powers over other employees, for their fairness and good faith might well be brought into question. In conclusion, the grievance is dismissed. The grievor was not unjustly disciplined because he was not called in to work as a casual employee after the end of January, 1980. There was no obligation tb provide work by his contract and, as there were valid reasons for refusing to call him (that is, his frequent refusal of work offers), there is no ground for holding that the lack of work was imposed for discipl+ary reasons. DATED at Toronto this 25th day of February, 1981. Prof. K. Swinton, Vice-Chairman I concur r Mrs. M. Gibb, Member I concur Mr. H. Weisbach, Member ,