HomeMy WebLinkAbout1980-0294.O'Keeffe.80-09-09Between:
Before:
For the Grievor:
For the Employer:
IN THE MATTER OF AN ARBITRATION
Under The
CROWN EMPLOYEES COLLECTIVE BARGAINING ACT
Hearin%:
Before
THE GRIEVANCE SETTLEMENT BOARD
Mr. Edmund O'Keeffe
And
Ministry of Correctional Services
Professor K. P. Swan Vice-Chairman
Mr. F. Collict Member
Mr. G. Beaulieu Member
Mr. R. Nabi
Grievance Officer
Ontario Public Service Employees Union
Mr. J. Benedict
Human Resources Management
Ministry of Correctional Services
August 5th, 1980
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* This grievance requests that a letter of reprimand (~Exhibit
dated January 8, 1980 be expunged from the grievor's file. At the
1)
material time, the grievor was employed at Guelph Correctional Centre
as a Correctional Officer 2, and the letter was issued by the Superintendent
of that institution.
The reprimand relates to the departure from work and subsequent
absence of the grievor on December 7 - 13, 1979. Without quoting it in
its entirety, it amounts to an allegation that the grievor was malingering
on that occasion, and that the foot injury which he sustained was his
l own fault. Indeed, at the hearing, the employer's position was that
the grievor had deliberately inflicted the injuries upon himself in order
to avoid work.
There appears to be no more dispute that the foot injuries, which
consisted of very sore, red welts making walking uncomfortable, were
caused by the grievorgs issue footwear. This footwear had caused
difficulty before, and the grievor had been given permission to wear
his own shoes at work, and had done so. The essence of the employer's
case was that, by wearing issue footwear at the material time, the
grievor had caused injuries which he knew would occur, and the prevention
of which was solely under his control.
The union's case amounted to a non-suit. The grievor was not
called, nor was any other evidence adduced, and the union relied entirely
on the argument that the essential elements of the employer's case had not I
been proved. We agree with the union's submission.
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0 The evidence adduced by the employer, which we have carefully
reviewed, proves only that the grievor had permission to alternate issue
footwear and his own shoes while breaking in the former; that he wore
issue footwear on the day on which the injuries were sustained; and
that the grievor's record of absence for medical reasons was such as to
cause the employer some suspicion, as a result of which he had been
required since February 1979 to present a medical certificate in
respect of every absence from work.
Obviously, the employer's case in such a matter must be almost
e entirely circumstantial, but this case is far too much so for us to
accept it as meeting the standard of proof required by law that the
grievor, on a balance of probabilities, committed the alleged offence.
While we can sympathize with the difficulty any employer faces in
proving such an allegation, a grievance arbitration cannot be decided
on the basis of sympathy, nor on the basis of suspicion or innuendo.
In these circumstances, no inference can be drawn from the grievor's
failure to give evidence. If there is no case to answer, no answer is
required.
l In the result, the grievance succeeds, and we order that the letter
of reprimand, Exhibit 1, be removed from the grievor's file and form no
part of his disciplinary record.
K. P. Swan, Vice-Chairman
;I concur
F. Collict, Member
I concur
G. Beaulieu, Member
Dated at Toronto
a this 9th day of September, ,198O