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HomeMy WebLinkAbout1983-0103.Peremesko.83-07-21103/83 Between: IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD OPSEU (John Peremesko) Before: For the Grievor: For the Employer: Grievor - and - The Crown in Right of Ontario (Ministry of Correctional Services) Employer R. L. Verity. Q.C. Vice Chairman H. Simon Member W. A. Lobraico Member R. Nabi Grievance Officer Ontario Public Service Employees Union E. J. Anthony Regional Personnel Administrator Ministry of Correctional Services Hearings: July 4 & 15, 1983 z- di 5 - 2 - DECISION In a Grievance dated February 16, 1983, the Grievor alleges unjust dismissal. In a letter to the Grievor dated January lOth, 1983, the Employer alleged that the Grievor was being "released" effective January 25th, 1983 pursuant to Section 22(5) of the Public Service Act. The reason for termination is failure to meet the requirements of the positi,on of Correctional Off i cer. At the time of termination, the Grievor was a probationary emp 1 oyee. ,At the outset of the Hearing, the Union requested the Board to restrict itself to hearing evidence solely in relation to the "Guelph incident" of December, 1982 and to characterize the termination as a discharge. In the absence of any agreement in this regard, and on the Union's admission that the preliminary motion was "unusual", the Union's prelimina:ry motion was dismissed and the Hearing proceeded in the normal fashion. The facts of the instant Grievance are both unusual and tragic. The Grievor was first employed on the unclassified staff at the Thunder Bay Jail from May, 1979 to June of 1980. In June of 1980, he was transferred to the Thunder Bay Correctional Centre on the classified staff. The Grievor was "released" from his employment on January 27, 1981 for "excessive absenteeism". During his probationary employment, the Grievor accumulated 523 days of ic staf f the Gr ievor absence and failed to complete the required two week bas course in either October or December, 1980. In October, - 3 - was ill and in December, 1 980, the Grievor attended the course for the first week only. He left the course early as a result of domestic difficulties. The evidence is clear that the under- lying cause of the Grievor's release was alcohol related. The standa rd procedure for probationary employees acting in the capaci ty of Correctional Officers is to complete a six week training at the home institution, followed by a two week bas,ic training course at a designated institution, followed by a further six months at the home institution, and finally a one week consolidated course at a designated training institution. Subsequently in October of 1981, the Gri evor convinced management at the Th~under Bay Correctional Centre that he had over- come his alcohol problem, and consequently on the strength of three letters of reference, the Grievor was appointed to the Thunder Bay Correctional Centre unclassified staff in November, 1981. It appeared that the Grievor had the alcohol problem under control because in April of 1982, as a result of a competition, the Grievor was appointed to the classified staff at that institution four a second probationary period of one year. Subsequently, on January 10, 1983, the Grievor was again released as unsuitable. The events of the second probationary period are indeed tragic. On July 2, 1982, the Grievor reported to wor k in an impaired condition (Exhibit 6) and was promptly sent home. At a meeting with management on July 5, the Grievor explai ned that he - 4 - was under the influence of medically prescribed of flu symptoms. Management accepted that exp him to report for work own July 7. On that date in sick, but agreed to report to work as schedu for work on July 12. The Grievor was to have a drugs as a result anation and ordered the Grievor phoned ed, but did report tended a two week basic training course commencing July 12; however,management wisely decided to cancel that'assignment due to the Grievor's health pro- blems. 'Subsequently, the Grievor was instructed to attend a two week basic staff training course at Milton, Ontario commencing September 13. He did attend the first three days of that course and then phoned in sick. On Monday, September 20, the Grievor had not reappeared at the course. The Ministry's Chief Instructor', Les Aslett,attended at the Grievor's hotel on t Grievor in an intoxicated condition. He al room cluttered with numerous empty bottles h,at date and found the so found the Grievor's hote.1 of beer and liquor. Mrr Aslett took the Grievor to hospital and later that evening the Grievor was returned by airplane to Thunder Bay. It took the Griever! several days to get himself into condition to report for work. When the Gr nanewas ievor failed to report for work on September 21 as scheduled, deleted from the payroll. At a meeting with management in September, the Grievor admitted that he was an alcoholic and requested that he be hospital i The Deputy Superintendent at the Thunder Bay Correctional Centre, B 'i his zed. 11 -‘5 - Hazelton,testified that his initial impul Grievor from employment; however,the Regi' advised otherwise.. se was to release the onal Personnel Office The Grievor was admitted to the Port Arthur General Hospital and was treated for his problem during a 21 day hospital admission. During that period of time, the Grievor was on short term sickness leave. Following his release from Hospita'l, with management on October 20 to consider cond return to work. It was management's position had undergone treatment, he would be given one a meeting was held itions for the Grievor's thatsince the Grievor final chance to complete the two week basic training course. According to the testimony of Mr. Hazelton, theGrievor promised that he would complete the course successfully, would not socialize and would "chain h'imself to the bed, if necessary". At that meeting some discussion took place concerning the Grievor's undertaking that he would abstain from alcoholic beverages while attending the course. The Grievor.'s recollection was that "I told Mr. Hazelton I would abide by the rules, and would not cause any trouble, and would not get drunk while away". In any event, the Grievor testified that he recognized that the Guelph training session would be his last cha,nce. At the meeting of October 20, the Grievor signed a statement to the effect that he would voluntarily provide a medical certificate for any future n - 6 - absences, stating the reason for each absence. The evidence is beyond dispute that the Grievor no further time from work from the October 20 meeting unt in January of 1983. lost il the effective date of his release The Grievor's exper course was again unsuccessful shared residential accommodat ,ience at the Guelph basic training . The Grievor and one Brian Benoit ion at the Guelph Correctional Centre. All other Correctional Officers attending the course commuted on a daily basis to and from classes. The only residence rule was that no liquor or beer was to be consumed at the residence. The courses were provided to the trainees on a daily basis from 8:OO'a.m. to 4:30 p.m. and the trainees were essentially free to do as they wished after 4:30 p.m. In addition, there was no evening curfew. The doors of the residence were to be unlocked at all times and accordingly no residence key was issued to any trainee. Following the second day's training session on Tuesday, December 7, the Grievor and Brian Benoit had supper in downtown Guelph. After supper, the two Correctional Officers attended a floor show at a local hotel, and in the process consumed several bottles of beer. At the Hearing, the Grievor testified that he and Benoit were at the hotel from approximately 8:30 p.m. to 12:30 a.m. and then returned to the residence by taxi. Also at the Hearing, the Grievor admitted to consuming four bottles of beer during that interval. - 7 - When the officers returned to the residence at about 00 a.m., they discovered that the door to the residence was 1 locked. The gate house guard advised the officers to attend at the front door of the Guelph Correctional Centre to obtain the keys to the residence. To the dismay of the officers, the front door of the institution was also locked. The evidence is clear that Mr. Benoit banged the door loudly, cursing and swearing in the process, and generally created a disturbance. The Grievor obtained instructions from the gate house attendant to try the side door of the institution. The Grievor then returned to the front door and accompanied Mr. Benoit to the side door. According to the Grievor's evidence, Benoit was sarcast ,i c to the Guelph Correctional Centre Night Officer, swore at the Off 'i cer, and was generally obnoxious. Eventually, a patrol officer escort the Grievor and Benoit to the res was made available to idence. Personnel at the Guelph Correctional Centre 'were under- standably upset by this incident, and an investigation was initiated promptly on Wednesday, December 8. Ministry Inspector Norm Gould interviewed both the Grievor and Benoit separately following the training sessi on on December 8. A sworn statement was given by the Grievor as requested by Mr. Gould on December 8 in which the Grievor testified in part as follows (Exhibit 9): "I was not drinking any alcohol or drugs. I was only drinking Pepsi. I do not drink any alcohol as I am undergoing treatment for my alcohol problem. I was on two previous courses; correctional officers and was sent home due to my alcohol problem. I have not done any drinking since September 20, 1982.' - 8 - The following day, the Grievor was taken out of class at approximately 11:OO a.m. by Inspector Gould and asked if he wished to change his statement in any respect. The Grievor then admitted to the Inspector that he hah been drinking on the evening of December 7, but that he did not want his Superintendent to be advised of that fact. It was Mr. Gould's testimony that the Grievor believed that he would "probably be fired" if his Superintendent was informed of his involvement w Inspector!s testimony that the Gr . th alcohol. It was also the evor refused to provide him with a ng the previous statement. further written statement correct Mr. Gould made the recommendation that the suitability of the Grievor'as a Correctional Officer be reviewed. Mr. Aslett, the Ministry's Chief Instructor was advised by Guelph Correctional Centre Deputy Superintendent. Richardson that the two Officers were no longer welcome Thursday, December 9, Mr. Aslett interv i tained during thatinterview that the Gr the incident in the company of Benoit. Mr. Aslett that he had "a few drinks", ievor had been involved in The Grievor admitted to Mr. Aslett then handed the at the Institution. On ewed the Grievor and ascer- tional Grievor a letter directing him to return to the Thunder Bay Correc Centre and to report the following day to his Superintendent. The Thunder Bay Correctional' Centre received Inspector Gould's report concerning the Guelph incident on January 7, 1983. No meeting was held with the Grievor to seek an explanation of the - 9 - Guel was ph incident. Subsequently on January 19, 1983, the Grievor sent the letter of termination. The evidence is beyond di'spute that the Grievor was a satisfactory employee, if one were to disrega.rd his alcohol related problems. Mr. Haze ,l Mr. atti Guel sati Aslett referred tude". T ph train sfactory n addit ton described the Grievor as "a good officer". to him as "a very likeable young man with a good ion, Mr. Aslett testified that the Grievor's ng course records indicated that his progress was The evidence is also clear that the Grievor is presently facing his .alcohol problems with, courage and determination. The Grievor's wife has been most supportive of her husband's attempts at rehabilitation. Whil e it is true that Mrs. Peremesko left the Grievor in December of 1 980 for nine months, we are satisfied, on the basis of her evidence, that she will,do everything humanly possible to insure her husband's complete rehabilitation. The Grievor was admitted to hospital because of alcoholism on March 17, 1983 following the termination of his employment. After an initial assessment, the Grievor was admitted to the Alcoholism Treatment Unit at the Lakehead Psychiatric Hospital for specialized alcohol treatment. Apparently a pre-condition for admission to the Unit is that a patient must be free from any psychiatric or physical problems. The program is a most advanced program of alcohol rehabili- tation utilizing the services of multiple disciplines in the health - 10 - * field, and stressing both group and individual therapy. The Grievor was hospitalized for 36 days in the program, and was discharged on June 3, 1983. Subsequent to that date, the Gr has been faithful in his follow-up procedures, including act participation in Alcoholics of the Alcohol Treatment Un i progress in the program and ievor ive Anonymous. George Goldie, Co-Ordinator t at the hospital, detailed the Grievor's in the follow-up procedures, and testified that the Grievor's chances of remaining sober through abstinence are excellent, provided that he continues with the follow-up procedures. Mr. Goldie testified that statistics indicate that the first year of rehabilitation is critical, and that if patient remains sober for a period of two years, the prognosis would be excellent for complete rehabilitat approximate on. He also stated that the Unit's success rate is y 40%. T h e gist of the Employer's case was that the Grievor was "released" as opposed to "dismissed" and that the release was bona fide and made in good faith. Reliance was also placed upon the wording ,of Article 27.6.1 of the Parties' Collective Agreement. That Article reads: "Any probationary employee who is dismissed or released on probation shall not be entitled to file a grievance." Alternatively, the was dismissed, then the dismi mind his probationary status Ministry argued that if the Grievor ssal was for just cause, bearing in 1 p 4, - 11 - The Union, in its argument, relied upon the character- ization of the facts as a discharge camouflaged as a release. Mr. Nabi pointed out that although the Grievor was in his probation- ary Year, he did have a total of some 33 months employment to his credit. It was the Union's position that the Ministry should be faulted for not taking decisive action ~to counteract the Grievor's illness by referral to the Employee Assistance Program. Mr. Nabi alleged that the evidence clearly demonstrated that the Grievor was a good Correctional Officer, who admittedly was suffering from the effects of an illness. Much of the Union's evidence was directed to the Grievor's progress in rehabilitation and the support that he could expect from the Union, from his family, and from the Alcohol Treatment Unit of then LakeheadPsychiatric Hospital, In a 1 Board commencing Services, 80/77 ( engthy series of Awards of the Grievance Settlement with Leslie and the Ministry of Community and Social Adams), the relatio~nship between Section 22(5) of the .P~ub'lic Service Act, an,d Section 18(2)(c) of the Crown Employees Collective Bargaining Act, and Section 27.6.1 of the Collective Agreement have been considered. As Arbitrator Adams stated in the Leslie case above at pages 12 and 13 of the Award: "To'restate our understanding of the relationship between these two statutes, we are of the opinion that the bona fides release of an employee from employment made in good faith during the first year of his employment for failure to meet the requirements - 12 - of his position cannot be considered to be a dismissal as that term is used in both the Public Service Act and the Crown Employees Collective Bargaining Act..... The two statutes are closely related and, indeed, the makes a number Accordinolv, the absence of then section 7712)(c) must be construed and interpreted to be a significant and intentional omission. Thus, it follows that the bona~ fides release of a pro- bationary employee in the first year of his employment made in good faith and for failure to meet the requirements of his position cannot be contested before this Board under S. 17(2)(c)..... A few qualifications should, however, be noted. Until the Supreme Court of Canada has said otherwise, this Board is of the opinion that the employer cannot camouflage either discipline or the termination of an employee.for a reason other than employee's failure to meet the requirements of his position, as that phrase is explained in the Square D. Co. Ltd. case by the guise of a 'release' under section 22C5) of the Public Service Act. This Board, therefore, has jurisdiction to review a contested release to insure that it is what it purports to be. But in the adjudication of such a grievance, this Board is without jurisdiction to evaluate and weigh the reasons of the employer unless the collective agreement provides otherwise. The Board must only be satisfied that the employer, in good faith, released the employee for a failure to meet the requirements of his position. As long as the Board can be satisfied that the employer has made an evaluation of that kind, it has no jurisdiction to review the fairness or correctness of that determin- ation under Section 17(2)(c)." Vice-Chairman Swan stated the test neatly in OPSEU (Peter Clark) and Ministry of Correctional Services, 443/82 in the following rationale: "While the test has been differently expressed from case to case, we think that in essence the question before us is whether the employer reasonably and in good faith exercised the authority in Section 22(5) of the Public Service Act to release the employee on probation, and did not merely seek to cloak a disciplinary discharge being the release procedure." - 13'- Having considered the testimony in its entirety in the instant Grievance, we are of the opini on that there is simply no evidence that the Grievor has been deal t with in a disciplinary fashion, and accordingly albeit somewhat reluctantly, we must find that we have no jurisdiction to pursue the matter further. Simply stated, the Board is satisfied that the Employer acted in good faith in releasing the Employee for failure to meet the requirements of the position. On the evidence, it can be said that the Employer acted with a considerable degree of tolerance having regard to the Grievor's illness. In his testimony, Mr. Gorrie stated that "alcoholism is an illness of choice". It months subsequent to his re i 1' treatment procedure for the s to the Grievor's credit that several ease, he has completed a meaningful purposes of rehabilitation. Boards of Arbitration generally shy away from gratuitous comments as part of an Award. However, this Board is of the opinion that the Employer should give serious consideration to the future empl oyment of the Grievor once it has been clearly established that his rehabilitation has been successful. Accordingly, this Grievance is dismissed. DATED at Brantford, Ontario, this 21st day of,J'uly, 1983. L dzI-=- 7 R. L. Verity, Q.C.~- Vice-Chairman 7: 3560 7: 4312 7: 5000 "I dissent" (see attached) H. Simon - Member \ W.A. Lobraico,- Member/ G-. --c DISSENT I must with respect disagree with the findings of the majority in this case. The grievor was suffering from alcoholism; he was trying to rehabilitate himself and was well. on the road to complete rehabilitation at the time of the incident at the Guelph Correctional Centre. The evidence is that the grievor was completely innocent of the incident. It was Mr. Bonoit the officer he went out with that particular evening that caused the disturbance upon their return from town. The grievor was not drunk, he did not raise his voice nor has he violated any of the rules of the Institution. In Peter Clark, 443/82 the Board states, "While the test has been differently expressed from case to case, we think that in essence the questionbefore us is whether the employer reasonably and in good faith excercised the authority in section 22 (5) of the Public ServiceAct to release the employee on probation and did not seek merely to cloak a disciplinary discharge behind the release procedure. In essence this is a question of fact and therefore depends on the circumstances of the case". Considering all the facts in this case, it is my view the grievor was unjustly dis- charged and the employer is attempting to cover up its disiplinary action against the grievor under section 22 (5) of the Act. - There is undisputed evidence that the grievor was a satisfactory employee.This is substantiated by M. Tegman, the Regional Director, Institutions division of the Ministry (Ex 5). In .his reply to the grievance (March 14, 1983) Mr. Tegman wrote ."In spite of the problems you have experienced we recognize your satisfactory performance on the job during the 2 periods you managed to keep your problem in hand and I expect you might be able toxin time obtain part time employment again at the correctional centre and, once again try to demonstrate a stability that could lead in time to full employment. In the event that arrangement is made I wish YOU good luck". Page two........... The gri’?VOrhas on his own initiative enrolled in a 35 day rehabilitation program which he had completed successfully and is continuing.on further programs. We had expert evidence that his attitude has completely changed and given the necessary support by his employer, family and the community, he will be completely rehabilitated. Many employees have special rehabilitation programs for employees who have alcohol problems. The Provincial Government'has adopted this principle and have established their own program which is commendable. For this Ministry to have . denied assistance to an employee who has been with them for almost 3 years - is in my view unfair and unjust. I would order the reinstatement of the grievor to his former position. HARRY SIMON, Piember