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HomeMy WebLinkAbout1981-0580.Kelly.82-01-13i - GeP,een : -I Sefore: -- For the 3xlo:yer: Hearing: Before THE r;ilIE'JNCE SETTLEI-iE!‘li 3OARD OPSEU (I4r. Neil Kelly) And The Crown in Right of Ontario (Ministry of Commnit:~ and Social Services) 2. L. Kennedy Vice-Chairran ti. 2. Laing :&ember L. Xobinson !lamber N. Lucza:/, Grievance Officer Ontario Public Service Employees ilnim S. L. C. !Ihite Enp!cyee Giations Officer Ministry of Community and Social Services January 7, 1982 - 2- A W A R D The Griever is employed by the Employer as a S-;;ol:r Clerk 5 at the Brookside School in Cobourg, Ontario. i’iS employment has been continuous from October 8th, 1969. Tie Institution is a training school for juvenile delinquents. A ?-day disciplinary suspension was imposed on the Griever by reason of an alleged incident that took glace on Xay 27th, 1981. The formal disciplinary notation issued by the Employer under date June 23rd, 1981 reads as follows: On June 18th, 1981,, you attended a meeting to respond to the allegation that on Nay 27th, 1981, you drove~your car in a dangerous manner causing an injury to a ward of Brookside School. During the meeting it was established that you drove your car off the school property and passed a group of boys from Banting House in columns of two's coming in the opposite direction on the left hand side of the road, forcing the group to move out of the way of your vehicle and the right bumper of your car struck [A], a ward, on the left knee and came dangernuslv close to other wards in the group. In further discussion, you indicated you were not aware of hitting the ward with your car as you proceeded out of then driveway and on to Cottesmore Avenue. IYr . Kelly, there can be no reason or explanation for this accident as you could have waited for a few minutes and all the wards would have been in the dining hall and then proceeded east and out the main gate. You are aware that each school day the wards are released from academic classes at 11:50 a.m. and are usually in the dining hall at twelve noon. Mr. Kelly, you are aware of the need to drive any vehicle in a safe manner on the school qrounds to ensure for the safety of wards walking on the grounds. In this instance, your failure to exert the necessary safety in the operation of "our vehicle could have resulted in serious in;urv t0 the ward involved, or other students and sts.:- in 2 + that area. This incident could have resulted in a he-)-i~c o--,.j in a Drovincial Court if the injury had occurred on the road rather than on school oroperty. Consideration was aiven to a more severe penalty for such disregard for safety of wards which cannot be acceated. I have decided, however, in review oi your file and your number of years of service in your oosition, to our-sue an alternative course of actTon. You wili be removed from duty for four working days without pay and will be required to refrain from driving or having your vehicle on school proaerty for the entire month of July. .t!: : You will be advised of the dates of vour removal from duty by Plr. Jones, the Office Manager. The grievance alleges that the suspension was without just .cause, claims reimbursement for all lost pay and benefits and the removal from then Griever's file of any documents relating to the incident that may be detrimental to his working career. The evidence on behalf of the Employer was provided to the Board through the testimony of a l5-year old inmate of the Institution who was allegedly in contact with the Griever's car on the day in question, the Supervisor of Banting Iiouse which was the house wherein that inmate resided, and the School's Nurse who examined the inmate approximately one hour after the alleged incident. The standard procedure within the Institution is that students complete their academic classes at 11:50 a.m. and proceed to their respective houses. Each house contains from 18 to 20 inmates. They line up outside the house in pairs in a line and proceed as a group to walk in line to the dininc - 4 - hall~to-have lunch. There iS a public road wit:? a marlksd school crossing which runs through the School property; and, in order to reach the dining hall, the inmates proceed along a School roadway, .across the public roadway and continue along the School driveway to their ultimate destination. Schedules are closely re,gulated and all inmates are normally within the dining hall by noon. There.are other houses located in the same general area.as Banting House whose inmates also line 1;3 in front of them and proceed to the dining hall in the same manner. Whichever house is ready in line first, it will proceed and the others follow along as they are ready. All of them go at approximately the same time and between the times of 11:50 a.m. and noon. On the date in question the inmate A stated that the house assembled in line and proceeded to cross the public road and proceed along the School driveway toward the dining hali. The public road is bounded by a concrete curb, but the School driveway does not have a curb,and is abutted by an area of grass and trees. The line comprising Banting House was >Talking on the right side of~the driveway facing the directicn of their travel and A was third or fourth from the front of the line on the inside nearest the grass. He was approximately one foot from the grass'into the roadway and was engaged in conversation with the inmate beside him. The dining hall is located further along the driveway and to the right in the direction that the inmates were travelling and, to the left, there is a ?arkinz area and buildings identified as maintenance buildings and the stores building. A testified that , after he had crossed the - 5- 1 street, he glanced towards the stores building and observed ,that a car which he knew to be owned by the Griever-.>as .' - ?ZXZ.Sc. in the parking area adjacent to the stores building. 3 e noticed that the car had started to move away fromthe building. Shortly after, he heard some shouts and the line ahead of him scattered and ,he stated that, at that point, he was struck on . the left knee by~the right side of the bumper of the Griever's car. He stated that at that point of time, he was about one foot away from the edge of the grass and that he was just taking a step forward at the time he was struck. Iie indicated that the car had,the right wheels on the pavement and the left wheels "2 on the grassy area. He fell down and, while at first, he did not feel any pain, it did hurt when he got up and waY?ked on it. Iie stated that the Griever did not stop at that Point, but proceeded to the intersection of the driveway and the public road where he stopped and then proceeded to make a left-hand turn onto the road. A estimated the speed of the Grisvor's car as between 0 and 10 miles per hour., He stated that the knee still bothers him on occasion by being stiff and sore when he first gets up in the morning. it was his evidence that the knee had never bothered him before this incident. ;, It was the evidence of the Supervisor that the process of going from the house to the dining hall requires two or three minutes; and that, on the day in question, there was nothing unusual with respect to weather or other conditions. The s~andar5 practice in crossing the road is that the Superviscr first 2roceeEs to the middle of the road and then stands there until the entire house has crossed the road and then proceeds to wal:< with the - 5 - line of inmates to the'dining hall. On tile day in y2esrion, after the line had crossed the road, and the Super-riser was zn5.n proceeding toward the dining hall, she notice? that t?.e frcr.~ s-2 the group got disolrderly and started to shout. She obsei-isd 3. bending down and grabbing his left knee, and she indicated that the boys were yelling and swearing. At that point, she also observed the Griever's car coming out the driveway oil the -,~ron.: side of the road with its left wheels on the grass and its right wheels still on the driveway. The Supervisor stated that, at this point, the inmates of other houses were crossing the road and that there were lines of inmates on the road within the crossing and on each side of the driveway. She stated that the griever proceeded to the roadway and made a left turn onto it. She went up to A to ask what had happened.and he advised her that the Griever had hit him with his car. The Supervisor had not seen contact between A and the Griever's car. She stated that, after the incident, A was limping and that his knee was red. She was, however, the only Supervisor on duty at the tire and was not in a position to take him to the Nurse immediately, so she requested that he have his lunch and they would proceed to have the knee looked at afterwards. She expressed the, opinion that, in proceeding in the !nanner in which he did, the Griever was driving to the left of the two lines of oncoming inmates so that he could proceed to make his left-hand t=rn o;lto the road without having to wait for all the inmates to cross the road as he would have had to do if he had proceeded up the centre or right-hand side of the driveway. With respect to A, she testified that he was one of the best inmates at the Sc:?ccl, - 7 - and that if all inmates were like him there would be no ?robLe~-s-; She stated that he was not a complainer and that, in her experience, he was honest and truthful. A registered nurse employed at the School observed A's knee at about 1:OO p.m. on the same day. She stated that :iere Iwas bruising and sweiling on the inner aspect of the left knee, but that knee movement was good. She did not consider that the attention of a doctor was required, but on the following day a doctor did examine A's knee in the course of his regular attendances at the School. The Nurse~stated that on the following day, it was her observation that the knee was more bruised, discoloured and swollen which, she stated, was normal for injuries of that nature. The only witness called by the Union was the Griever himself. He stated that he left for his lunch break at twelve noon on the day in question and proceeded to drive his car frcm where it was parked against the stores building, cut the driveway toward the Public road. He stated that he drove on the left side of the road in order to avoid a hole in the driveway, the location of which hole was pointed out to us at the hearing by the Griever, both with respect to a sketch of the area that was filed and photographs. We might state, at this point, that the evidence indicates that, if a vehicle did go to the left to avoid the hole, there would still be adequate opportunity and space to get back to the right-hand side of the road prior to reaching the intersection. The driveway itself is over t:io cars in width. The Griever stated that he observed the colur?.ns of i -a- inmates forming up in front of the hcuses and that, at zne time, they were all on the opposite side of the oubiic r0aE. b: 2 stated that there were columns of inmates lined tu? on each side of the driveway and-that he pulled to the left and up onto the grass in making his exit. He stated that when he actually reached the intersection and, at the point where his front bumper was just at:the public road, the inmates were just coming across the public road and were beside his car to his right. :-:e proceeded to make his left-hand turn, and he indicated that in that turn the left wheels of his car went over the curb of the public road. He stated that there was nothing unusual in the line, that there was no shouting or anything, and that the line did not stop or break up at any time. He denied that his car, at any time, struck A. He stated that his maximum speed in the course of exiting from the Schocl would have been 5 miles per hour, and he further stated that, normally when he left the Schooi area, he would proceed to drive on the right side of the driveway rather than on the left and on the grass. :ie stated that he was not aware that there was alleged to have been an accident until the following morning when he arrived at work. In the course of cross-examination, he stated that there were columns of inmates coming down each side of the driveway and that there would have been room to drive between the two columns. He stated that he went over to the left side and onto the grass to give the houses lots of room to go by. Ee further agreed in cross-examination that it was necessary for him to drive on the grass in order to avoid hitting the col,umns of inmates in the position in which they were walking. - 9 - . ’ rn ail of the circumstances, we would concl.ude, on the totality of the evidence provided to us, that t:qe inci"-s?.t happened as des'cribed by A and the Supervisor. In reac:1ins that conclusion, we wish to make it emphatically clear that we, in no way, question the good faith or honesty of the Griever. We are quite satisfied that he outlined events to ils exactly as he recalled them, but it may be noted that, until.tie following morning, he was not aware that anything unusual or extraordinary had taken place. ?hile it is his recollecticn -.;. that the first time that his vehicle and the inmates were in proximity was the point of time at which he was stopped at the public road, it is much more consistent with the probabilities that what he observed at that point was the column coming from one of the other houses and not the coiumn which included A. From the nature of the contact, it is quite conceivable.that the driver of a car would not have noticed it and it is our view that that is, in fact, what happened. We had opportunity to observe the Griever on the hearing, and he is obviously not the type of individual who would caliously disregard the possibility that he had injured someone. On the facts, however, we do feel that the Griever's action did justify a disciplinary response on the part of the Zmployer. We would conclude, on the evidence, that, as the Grievor was preparing to proceed out the driveway, he did observe the columns oft inmates in general. He is well aware of the procedures within the School and he WOUld, therefore, be aware that if he proceeded out the driveway in the usual manner, he would have a wait of two or three minutes in order to let inmates pass before he would be able to ?rcceod - 10 -. to make his left turn onto the public road. 3.s a~ resclt, he proceeded to go to the left which required that.he drive sartl:; ,on the grass and that he make a left-hand turn,requiring that two wheels of his car pass over a concrete curb. In our view, and in normal driving circumstances such an action is, to say the least, questionable. In the context of a training school -for juvenile delinquents, with its conc:xren+ responsibilities and obligations on all employees relating to the ixnates that are in custody, we believe that the characterization of the Griever's actions as taken in the letter of discipline is justified and that the discipline imposed is reasonable. In the result, it is therefore our conclusion that the grievance should be dismissed. DATED at Toronto this 13th day oft January, 1932. “I conc’ti?” H. J. Laing, .Xember " I concur" L. Xobinson, Nember