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HomeMy WebLinkAbout1983-0113.Dvorak et al.84-08-16TELEP”oNE* 416/598- 0688 113/83 122/83 115/83 123/83 120/83 124/83 121/83 125/83 INTERIM DECISION IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD Between: Before: For the Grievors: For the Employer: Hearing: OPSEU (Allan Dvorak, et al) Grievors - and - The Crown in Right of Ontario (Ministry of Correctional Services) Employer M. K. Saltman Vice Chairman W. blalsh Member A. Reistetter Member P.J.J. Cavalluzzo Counsel Cavalluzzo, Hayes & Lennon Barristers & Solicitors D. W. Brown, Q.C. Crown Law Office Civil Ministry of the Attorney General April 28, 1983 ._ -& -2- The Grievors in the instant case, Allan Dvorak, William Bradley, Michael McKinnon and Robert Moreau, were employed as Correctional Officers at the Toronto East Detention Centre. On December 7, 1982, an inmate of the Toronto East Detention Centre sustained serious injury as the result of an alleged assault by Correctional Officers .* As a result of this incident, the Employer conducted an investigation under Section 22 of the Ministry of Correctional Services Act, R.S.O. 1980, c. 275, which reads as follows: n 22. The Minister may designate any person as an inspector to make such inspection or investigation as the Minister may require in connection with the administration of this Act, and the Minister may and has just cause to dismiss any employee of the Ministry who obstructs an inspection or investigation or withholds, destroys, conceals or refuses to furnish any information or thing required by an inspector for the purposes of the inspection or investigation." As a result of the investigation, six Correctional Officers, who were implicated in the assault, were dismissed. The four Grievors, who were not implicated in the assault, were suspended pending investigation and ultimately dismissed for breach of their trust as Correctional Officers and for violation of Section 22. More particularly, Messrs. Dvorak, McKinnon and Moreau, all of whom were Union Officers, were dismissed for obstruction of the Ministry's investigation conducted pursuant to Section 22. Mr. Bradley, who was not a Union Officer, was dismissed for withholding information from the investigation. Each of the Grievors filed two grievances, one against indefinite suspension and one against dismissal. The' eight grievances were referred to this Board for determination. At the request of the Union, the Board ordered that these grievances be consolidated and heard together. * Six Correctional Officers were dismissed for the assault. The grievances of those Officers were dealt with by another panel of.the Board: see Bedeau et al. f52/83, 54/83, 57/83, 55/83, 112/83, 114/83, TTG/B3* 118/831 53/83a m, 117/83, 119/83). -3- At the outset of the hearing, the Employer objected to the Board's jurisdiction to review the dismissals since the Grievors were dismissed under Section 22 of the Ministry of Correctional Services Act*. According to the Employer, there is a distinction between a "dismissal" under Paragraph 17(2)(c) of the Crown Employees Collective Bargaining Act, R.S.O. 1980, c. 108 and a "dismissal" undersection 22 of the ~Ministry of Correctional Services Act.. Since the Board's jurisdiction is limited to dealing with dismissals under the Crown Employees Collective Bargaining Act only, the Employer submitted that the Board has no jurisdiction with respect to these dismissals which were effected under Section 22. In the alternative, if the Board has jurisdiction, its jurisdiction is limited to determining whether the Grievors were in fact dismissed under Section 22. If they were and if the Minister acted in good faith, the Board has no jurisdiction to review the cause for the dismissals. The Union claimed that the Board has jurisdiction in these matters since there is no distinction between a "dismissal" under Section 22 of the Ministry of Correctional Services Act and a "dismissal" under Par'agraph 17(2)(c) of the Crown Employees Collective Bargaining Act. The issue to be determined is whether the Board has jurisdiction with respect to these dismissals which we,-e effected pursuant to Section 22 of the Ministry of Correctional Services Act. In addition to Section 22, the following provisions are relevant to a determination of this matter: * The Board dismissed the objection in a decision dated June 30, 1983, with reasons to follow. These are those reasons. ” -4- CROWN EMPLOYEES COLLECTIVE BARGAINING ACT ' 17(2) In addition to any other rights of grievance under a collective agreement, an employee claiming, (a) ;ti;:S;;;ersition has been improperly ; (b) that he has been appraised contrary to the governing principles and standards; or (c) that he has been disciplined or dismissed or suspended from his employment without just cause, may process such matter in accordance with the grievance procedure provided in the collective agreement, and failing final determination under such procedure, the matter may be processed in accordance with, the procedure for final determination applicable under section 18." ' 18(3) Where the Grievance Settlement Board deter- mines that a disciplinary penalty or dismissal of an employee is excessive , it may substitute such other penalty for the discipline or dismissal as it considers just and reasonable in all the circumstances." COLLECTIVE AGREEMENT II DISMISSAL . . . 27.6.2 Any employee other than a probationary employee who is dismissed shall be entitled to file a grievance at the second stage of the grievance procedure provided he does so within twenty (20) days of the'date of the dismissal." The Board has jurisdiction in these matters if the grievances come within the ambit of Subsection 17(2) of the Crown Employees Collective Bargaining Act or within the scope of any.relevant provision of the collec- tive agreement: see Tucker (208/78); & (80/78). Article 27.6.2 of the -5- collective agreement gives employees (other than probationary employees) the right to file a grievance against dismissal at Stage 2 of the grievance procedure within specified time limits. In addition thereto, Subsection 17(2) of the Crown Employees Collective Bargaining Act provides employees with the right to file a grievance against a number of matters,including improper classification (Para. 17(2)(a)); improper appraisal (Para. 17(2)(b)); and, of particular importance for the instant case, unjust dismissal, discipline or suspension (Para. 17(2)(c)). If the grievances are not satis- factorily resolved between the parties, they may be referred for arbitration by the Grievance Settlement Board (C.E.B.C.A., S. 18; Collective Agreement, Article 27.4). The issue is whether the dismissals of the Grievors, which were effected under Section 22 of the Ministry of Correctional Services Act, were dismissals within the meaning of the Crown Employees Collective Bargaining Act and the collective agreement*. The term "dismissal" is not defined either in the collective agreement or in the Crown Employees Collective Bargaining Act, although it would appear to exclude the "release" of a probationary employee under Subsection 22(5) of the Public Service Act, R.S.O. 1980, c. 418: see Tucker, supra; Leung, supra. With this one exception, however, the term "dismissal" * Since the rights of grievance under the collective agreement, including the riaht to arieve aaainst dismissal (Art. 27.6.2),are incorporated into the Crown Employees Collective Bargaining Act (Ss.'l7(2)), the Board will refer to the provision under the Crown Employees Collective Bargaining piohts under both the Crown A& only,as a'shorthand reference to the 1 I Employees Collective Bargaining Act and the collective agreement. -6- would seem to be used in the ordinary sense of a termination of employment, either for disciplinary or non-disciplinary reasons. In the instant case, the Grievors were terminated for essentially disciplinary reasons, i.e. for alleged obstruction or withholding of information from an investigation under Section 22 of the Ministry of Correctional Services Act. Since these were disciplinary terminations, they would appear to come within the scope of the term "dismissal" in Paragraph 17(2)(b) of the Crown Employees Collective Bargaining Act. Nevertheless, the Employer claimed that the scope of this provision was limited to the dismissal of employees for misconduct in the performance of their duties qua employee, which are essentially private duties owed to the Employer (as opposed to statutory duties owed to the public). Since the Grievors in the instant case were dismissed for alleged misconduct in the performance of their statutory public duties, the Employer claimed that the grieva.nces were not arbitrable. To the Board's knowledge, this "public/private dichotomy" has not been dealt with in respect of Correctional Officers. Nevertheless, there has been a long line of cases, arising out of the interpretation of Section 11 of the Public Authorities Protection Act, R.S.O. 1980, c. 406, dealing with the distinction between the "public" and “private” duties of a Police Officer. The most recent decision, which reviews all of the previous ones, is Re Colledge and Niagara Police Commission (1984), 44 O.R.(2d)289 (C.A.) (the "Colledge" case). Constable Colledge was a Police Officer with the Niagara Regional Police Force. As a result of an alleged incident on March 26, 1981, disciplinary charges were laid against him under the Police Act, R.S.O. 1980, c. 381 as amended and the Regulations thereunder. Although the -7- alleged incident was not described, the charges related to the discharging of a firearm and to the use of excessive force in the course of an encounter with a member of the public. Constable Colledge sought to have the charges.' ,dismissed on the ground, among others, that the charges were barred by Subsection 11(l) of the Public Authorities Protection Act since they were not brought within six months of the commission of the alleged offences. The Judge designated to hear the charges under the Police Act gave effect to the Constable's submission and dismissed the charges. The Judge's decision was subsequently quashed by the Divisional Court which held that the charges were not barred by the Public Authorities Protection Act. An appeal to the Ontario Court of Appeal was dismissed on the grounds that (1) the protections' of the Public Authorities Protection Act did not apply to disciplinary proceedings under the Police Act and Regulations thereunder; and (2) the protections applied only to a Police Officer in the performance of his statutory public duty and not in the performance of the private duties which he owed to his employer. In distinguishing between "public" and “private" duties, Mr. Justice Arnup, speaking for the Court, said as follows at page 311: II . ..If the constable was in the process of making an arrest of a person suspected of a criminal act, or guarding or transporting a suspect arrested by someone else, and improperly drew or used his gun, or unlawfully assaulted someone, he would in my view be acting in purported exercise of his public and statutory duty under s. 57 of the Police Act of 'preserving the peace, preventing robberies and other crimes and offences...and apprehending offenders' and generally 'all the duties and responsibilities that belong to constables'. On the other hand (to use an illustration which may not be applicable here) if an officer's alleged offence was that of 'talking back' to the chief, or disobeying an order of the officer in charge at the time, I would not regard that as being pursuant to or in exercise of a statutory or other public duty." (emphasis added) -a- Although, in the instant case, the Grievors were not Police Officers, the Employer asked the Board to apply the distinction between "public" and "private" duties and find that the grievances were not arbitrable since the dismissals resulted from the purported exercise of the Grievors' public duty as Correctional Officers. If the Board assumes, without deciding; that the distinction between "public" and "private" duties applies to Correctional Officers, as well as to Police Officers, it would appear that the Grievors were dismissed for alleged misconduct in the performance of their public duty under Section 22 of the Ministry of Correctional Services Act. Nevertheless, in the Board's view, this does not mean that the grievances are not arbitrable since there is no indication that dismissal for breach of a public duty does not come within the scope of Paragraph 17(2)(c) of the Cmwn Employee Collective Bargaining &J. In fact, other such breaches would appear to be arbitrable. For instance, although a Correctional Officer who assaults an inmate is acting in the pur- ported execution of his public duty, namely, to refrain from using excessive force against an inmate (O.Reg. 649, Ss. 57(l)) and to provide "secure custody" for the inmate (M.C.S.A., S. 4), if the Officer is subsequently dismissed for the assault and files a grievance against dismissal, there is no question that the grievance is arbitrable under the Crown Employees Collective Bargaining Act: see Bedeau, supra. Similarly, in the Board's view, the grievances in the instant case, which result from dismissal of the Grievors for alleged breaches of public duty, are also arbitrable under the Crown Employees Collective Bargaining Act (since they come within the scope of Paragraph 17(2)(c) which deals,with grievances against "dismissal"). (Indeed, the opposite ‘3 s -9- conclusion, i.e. that the grievances are not arbitrable, would lead to the anomalous result that the Correctional Officers who were charged with the ac- tual assault could have their grievances arbitrated whereas the Correctional Officers khom it is alleged withheld information about the assault could not. In the Board's view, such a result is inconsistent with the remedial intent of the Crown Employees Collective Bargaining Act and, in any event, is not mandated by the language of the statute.) Accordingly, the Board finds that the grievances in the instant case are arbitrable. Nevertheless, in the Board's view, the scope of arbitral review is limited by Section 22. In the ordinary course, the Board has jurisdiction to determine whether there is "just cause for dismissal" (C.E.C.B.A., Ss. 17(2)) and, if so, whether the penalty of dismissal is excessive, thereby enabling the Board to substitute a lesser penalty which is "just and reasonable in all the circumstances" (c.E.c.B.A., SS. la(3)). In the case of a dismissal under Section 22, the Ministry of Correctional Services Act sets out the circumstances which constitute "just cause for dismissal", including obstruction of an investigation and withholding of information. If the Employer can bring itself within these circumstances, then it seems clear that the issue of just cause is determined. Nevertheless, this is not the end of the matter since even if "just cause for dismissal" is proven under Section 22, the Board still has juris- diction to review the propriety of the penalty (C.E.C.B.A., Ss. lB(3)). The Board is reinforced in this conclusion by the decision of'the Ontario Divisional Court in Re The Queen in right of Ontario and Grievance Settlement Board et al. - 10 - (the "Cook" case) (1980), 27 O.R.(2d)735. In that case, the Board found that the employer had "just cause to dismiss" the grievor, Mr. Cook, for fraudulent misconduct. Nevertheless, due to certain mitigating circumstances, the Board considered that the penalty of dismissal was excessive and purported to substitute a lesser penalty. On application for judicial review, the employer took the position that once it was found that just cause for dismissal existed, the Board had no jurisdiction to reduce the penalty. The Court dismissed the application and confirmed the Board's right to substitute a lesser penalty even where "just cause for dismissal" exists. The Court's finding is stated at page 744: II . ..It is equally plain that s. lB(3) gives the grievance settlement board power to determine that a disciplinary penalty or dismissal is excessive and, in such case, further power to substitute such other penalty for the discipline or dismissal as it considers just and reasonable in all the circumstances. If it is qiven the power to determine what is not only just but also reasonable, it must surely be qranted the power under that lanquaqe to determine that a dismissal is not only just but; in the circumstances, excessive." (emphasis added) In the Board's view, the principles in the Cook case can be applied to the instant case. Although the Board's jurisdiction to determine whether there is "just cause for dismissal" is circumscribed by the statutory requirement in Section 22 of the Ministry of Correctional Services Act, the Board's jurisdiction to substitute a lesser penalty is unfettered. Accordingly, even if the conduct complained of comes within Section 22, the Board has plenary powers to review the propriety of the penalty (C.E.C.B.A., SS. ia(3)). In this regard, the Board's powers are very wide and would appear to exceed the powers of an arbitrator under the Labour Relations Act, R.S.O. - 11 - 1980, c. 228, as amended, under which the parties to a collective agreement -. may oust the jurisdiction of an arbitrator to review the propriety of a penalty by agreeing to a specific penalty (Ss. 44(g)). There is no such restriction on the Board's powers under the Crown Emplovees Collective Bargaining Act. Accordingly, even if the statutory requirement in Section 22 can be viewed as a specific penalty, the Board still has jurisdiction to determine whether the penalty was excessive and, if SO, to substitute a lesser penalty. Accordingly, the Employer's preliminary objection is dismissed. The Board remains seized with respect to the merits of this matter. DATED AT TORONTO, ONTARIO , this 16th day of August, 1984. fl M.K. Saltman - Vice-Chairman W. Walsh - Member "I dissent" (to fOllOWl A. Reistetter - Member