HomeMy WebLinkAbout1984-1596.O'Hara.86-06-09For the trievor:
For the Employer:
Hearings:
IN THE HATTER OF AN ARBITRATION
- Under -
THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT
Before
THE GRIEVANCE SETTLEtiENT BOARD
OPSEU WichaeI O’Hara)
- and -
The Crown in Right of Ontario
(Ministry of Correctional Services)
R.L. Verity. Q.C.
T.J. Kearney
G. llilley
B. Hanson
COU”S.21
~svallurto. Hayes 6 Lennon
Barristers h SoliCitOrS
J.F. Benedict
“anager. Staff Relations
personnel Branch
Ministry of Correctional services
Crievor
Employer
Vice-Chairman
Member
Uember
June k, 1905 - Toronto, Ontario
September 23, 24 and 25. 198s - Sault Ste. Marie, Ontario
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DECISION
On Llanuary 17, 1985, Michael O'Hara was notlfled that
his employment contract as a Correctional Officer 1 was termi-
nated effective January 24, pursuant to Article 3.11 of the
Collective Agreement.
Hr. O'tiara grieved that he had been “unjustly dis-
missed". The settlement requested was reinstatement with full
compensation.
Hr. O'Hara worked at the Sault Ste. Harle 3ail from
June 13, 1983 under a series of temporary contracts of employ-
ment. At all times, he was a member of the unclassified staff
and in that capacity was commonly known as a "casual" employ-
ee. As such, he war a “public servant” under both the Public
Service Act and the Crown Employees Collective Bargaining Act
but not a “civil setvant", and his rights were those as
provlded In Article 3 of the Collective Agreement. The scope
of the Article Is defined in Article 3.1 as follows:
"The only terms of this Agreement that apply
to employees who are not civil servants are
those that are set out In this Article.”
In particular, Article 3.11 reads:
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“Employment may be terminated by the Employ-
er at any time with one (1) week’s notice,
or pay in lieu thereof.”
Under the combined effect of Articles 3.lb.and 27.6.2. of
the Collective Agreement and Sectlon 18(Z)(c) of the Crown
Employees Collective Bargaining Act, a casual employee has the
right to grleve a dlsmlssal. However, there is no correspond-
ing right afford’ed a casual employee to grieve a release.
Therefore, thls board is required to assess the evidence and to
characterize the matter as elther a dlsmlssal ot a release.
The Sault Ste. Marie 3all is a maximum security in-
stitution which accommodates some 64 male and several female
inmates. In January of 1985, the staff complement was approxl-
mately 04 members of which some 16 to 18 employees were Correc-
tional Officers 1.
The present Superintendent, W. 3. Hartln assumed his
responsibilities at the Jail on October 19, 1983.
The Crfevor’s Lnitlal contract of employment was for
a term effective June 13, 1983 to and including December 31,
1983. That contract speclfled that “normal hours of work not
to exceed 20 hours”. The Crievor was given a second contract
from January 1, 1980 to and lncludlng Oecember 31, 1984 rhlch
specified the same hours. During the course of the second con-
tract, the Crlevor’s hours of work were extended to 40 hours
for two - three month perlods. However, on September 19, 1984,
the Crlevor was given a new contract which, returned to the 24
hour work week.
All of these temporary conttacts contained the provl-
slon “services may be termlnated on one (1) weeks notice by
elther party”.
The Crlevor’s final contract of employment was for a
period effective LIanuary 1, 1985 to December 31, 1985. Under
Terms and Conditions, the contract provided for normal hours of
work not to exceed 24 per week. The contract was prepared
by the Office Manager of the Sault Ste. Marie Sali in early
December. It was then sent to the Ministry’s Regional Office
for signature and was subsequently returned to the Sail on
December 19, 1984.
The evidence is unclear when Superintendent W. 3.
Martin signed the Ctievor’s contract. lhe Superintendent
testltled that it may have been signed on December 19, 1984,
but that in any event It would have been signed by him between
Oecember 19 and December 24. Once the contract was approved by
the Superintendent, It was returned to the Offlce Manager. For
some unexplained reason, the Crlevor was not called upon to
sign the contract until 7anuary 14, 1985. As Lndlcated pre-
viously, the Crlevor was “terminated” some 3 days later, namely
January 17, 1985.
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The Crlevor testlfled that he worked a 40 hour week
0” d regular basis from June 13, 1983 to October 1, 1984.
As a CdSUdl employee, the CrlevOr received three days
of formal classroom instruction dt the commencement of his em-
ployment. The bdldnce of hls trdlnlng took the form of on-the-
job experience. The evidence is clear that the Crievor wds not
given copies of the Instltutlon’s Standing Orders or Posted
Memoranda.
At the Hearing,
the evidence disclosed three major
events and numerous minor incidents which caused the Employer
to terminate the Crlevor’s services.
(1) November 1, 1980
On this date, the Crievor unknowingly left the jail
with an lnstltutfondl security key in his possession. The key
wds misplaced for approximately three hours. As a result, all
day shift workers were contacted In an attempt to locate the
missing key. Eventually, Jail personnel contacted the Crievor
who promptly returned the key.
Acting Deputy Superintendent Ldke conducted an fn-
vestigatlon and submitted a written report. Hr. Lake’s report
noted: “...Thls Incident of Mr. O’Hdra unknowingly taking an
Instltutlondl key home Is not an Isolated one. Hdy 8, 1980
5
.~ . .
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Mr. O',,drd took the Sdme key home and WdS counselled, dS
indicated on the shift I/C’s report on that date...".
Following d disclpllnary hearing, the Crfevor was
given d letter of reprimand for remOVd1, rlthout dUthOriZdtiOn
of the security key. The letter concluded: “Any further
breaches or vloldtions of security procedures will result In
the termination of your contract.“.
The letter of reprimand wds not grleved.
(2) December 20, 1980
On this occasion, at dpproxlmdtely 1350 the Griever
telephoned an imcorrect head count to the control room from his
second floor post, in violation of the Sail’s stdndlng orders.
The head count reported 17 Inmates when In fact 18 inmates
should have been accounted for. The Crievor compounded the
problem by making the followlng entry In the second floor log
book: “1355 - head count 20 males’. Acting Deputy Superinten-
dent Lake conducted an Investigation into the matter. Unfor-
tunately, the Investigation was delayed because Mr. Ldke left
on d short VdCdtiOn. However, Superintendent Hartln *as made
aware of the lncfdent shortly after the occurrence.
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The investigdtlon report was prepared dnd submitted
by Mr. Lake on January 9, 1985. At that time, the Superinten-
dent glanced dt the documentation and left on d three day con-
ference. Superintendent Martin did not redd the report until
January 11, and it WdS not until Sdnudry 14 that he read Mr.
Lake’s report ln detdll.
The report stated that on December 20, the Crievor
telephoned dn incorrect head count on two separate occdslons.
Mr. Lake noted that Steve Frech, the Shift I/C, malntalned that
only one incorrect head count had been relayed to the control
room. Mr. Frech’s report verifies the Crlevor’s recollection
of the event. Nevertheless, Mr. Lake disputed the accuracy of
both accounts based on his personal knowledge of the Incident.
The report reads, In part: “...Hr. O’Hara states In
hls report that the reason hls count was incorrect was due to
one lnmate belng in bed with a ‘blanket Covering him and d
towel hanglng from his bars’...” Mr. Lake concluded hls report
with the following COmment: “...I feel every effort has been
made to imp‘rove Hr. O'Hdra's level of security awareness, all
to "0 db'dil...".
No discipline was imposed ds a result of thls incl-
dent.
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0) January 14.. 1985
The third major incident concerns the Employer’s
allegdtion that the CrfevOr left his post unsupervised,
contrdry to the written lnstructlons of d posted memorandum
dated April 11, 1984.
“10 All Staff
From 3. 3. Burghout - OH 14
Leaving Post t4 & 16 Unattended.
Staff assigned to post RI, 8 66 must not
leave thdt post without being replaced by
dn other officer. During the absence of
the floor officer, the officer tdkIng over
for whatever redson, must remain on the
floor until such time the floor officer
returns.
Leaving an assigned post unattended is a
serious matter and will not be condoned any
longer. Staff will be held responsible for
their actions. Thank you.”
Superintendent Martin testified that It had been com-
mon practice for assigned officers to leave their posts unsu-
pervised. To end that practice, the April 11th Hemorandum was
prepared dnd posted on 7 bulletin boards fn the Jail.
On January 14, 1985, the Crlevor was assigned to the
first floor ds the Floor Officer on the day shift (Post #4).
In that CdpdCfty, he wds responsible for the cdre, control and
supervlslon of the Inmates in cell blocks A, 8, C and 0. Mr.
Vance Boulet, d Correctional Officer 2 was also assigned to the
-9-
same shlft ds the General Duty Officer (Post 15). As the Cen-
era1 Outy Officer, Mr. Doulet’s duties included escorting in-
mates to the basement for prepdrdtiOn for Court attendance, and
relieving the Floor Officer during meal periods. frddftion-
ally, the General Duty OfflCer assists the Floor Officer.
At approximately 1220, the Crlevor took a lunch break
in the Officer Room outside the cell block area. At that pofnt
In time, the Crievor wds replaced by Mr. Boulet as the Floor
Officer.
The Crlevor testified that while he wds in the Offl-
cer Room, he received d telephone call dt dpproxlmately 1230
from an officer In the admlt and discharge area, to the effect
that three first floor Inmates were requlred for Court lmmedl-
ately.
The Crlevor promptly returned to the cell block area
and advised Officer Boulet of the request and identified the
inmates. Officer Doulet proceeded to cel1 block 6, opened the
block door and released two inmates.
What transpired subsequently is the subject of con-
flicting testimony.
c
- lo-
The Crlevor~ testified that he told Mr. Boulet that he
would escort the two inmates downstdlrs and that Boulet dctudl-
ly observed the Crievor wdlk through the main grilled $oor with
the two prisoners. The Crlevor Sdfd that he escorted the in-
mdteS to the admit dnd dlschdrge drea by way of the front
stdirway, released them into the custody of. an officer In thdt
ared, and then promptly returned by the same stairway to the
first floor. The Crlevor malntalns that on the way up the
staircase he noticed Superintendent Martin engaged in conversa-
tion on the first floor landing. The Crievor could not recall
seeing the third inmate with Mr. Boulet, but he did observe
officer Boulet standing outside the cell block door. The
Crlevor then re-entered the cell block dnd proceeded to the
rear of the drea and made an entry in the log book at 1242.
The entry in the log book redd5 ds follows:
“2 males returned to ‘9’ block
A-9 B-2 C-4 O-3 & 5 Kit. - 123)”
The Crievor also lnitfalled an entry made by Officer
Eoulet at 1238 which read: “D...,C...,W..., to Court”.
The Crlevor mdfntdined that Officer Boulet retained
the “0” key throughout the Crievor’s lunch break. The “0” key
is normally carried by the Post 65 Officer. In the Crievor’s
own words: “Some officers are reluctant to give the ‘0’ key to
CdSUdiS”.
- ll-
The Crlevor ddmitted that when he re-entered the
first floor cell block, no other Officer wds present. The
Crievor maintains that ail relevant times during the incident
he was the Post 15 General Duty Officer. In the Crlevor’s own
words: “At no time did I leave my post unsupervised”.
Correctional Officer Boulet’s testimony portrays d
substantially different reCOlleCtiOn Of the lncldent. Boulet
stated thdt the CrieVOr received a telephone calf from the dd-
mlt and discharge area in the Ceil block and that he WdS Stdnd-
ing next to the Crievor dt the time. Officer Boulet maintains
that he retrleved the “0” key from the Crievor at approximately
1230, dnd with that key released the two inmates from “9” block
Into the Crievor’s custody. Doulet testified that he then pro-
ceeded to “C” block to release the third Innate on the under-
standing that the Crlevor would remain at the main grllled door
with the two inmates. Doulet then released the third inmate
and, in the absence of the Crievor, *I more or less dCted on
instinct” and escorted the third inmate to the basement area.
After delivering the inmate, Boulet returned to the first
floor.
Officer Boulet maintains he recommenced his duties as
the General Duty Officer when he retrieved the “D” key from the
Crlevor. He maintains that he did not see the Crievor leave
the cell block and that he did not know the Crievor’s where-
dbouts when he escorted the thlrd inmate to the basement.
- 12-
In his Occurrence Deport, Hr. Boulet States, “with
the kitchen Inmates moving on and off the floor plus Court
movement I CdnnOt say whether or not the floor wds left un-
supervised”.
The Superintendent testified that at approximately
12:30 d.m. on ganuary 14, 198S, he wds engaged in conversation
with the tialntenance Officer on the first floor landing. The
Superintendent observed the Crievor in the process of escorting
t*o inmates to the basement area. According to the Superlnten-
dent’s evidence, “within d minute” Mr. Boulet cdme down escort-
ing d Single inmate. Shortly thereafter, a third officer was
seen escorting an inmate from the second floor. By this time
the Superintendent had observed three officers escorting In-
mates to the basement out of a total officer complement of
four.
The Superintendent ended his conversation and
Contacted the acting Deputy Superintendent. Both men proceeded
to the rear of the first floor cell block area and observed the
Crlevor in the process of making d log entry. Mr. Martin then
made d log entry on his own dated 1244, “Floor officer left
floor unsupervised”.
The Superintendent did not observe the Crievor pass
him on the stairwell and assumed that the Crlevor had re-
entered by a back Stdfrway.
- 13-
Both Officers were requested to file occurrence
reports. The reports filed were so brief as to be virtually
meaningless. No lnvestlgatlon was conducted. The Crlevor (ras
subsequently terminated by Superintendent Hartln three days
later on 3anuary 17, 1985.
(4) Other Incidents
Superintendent Martin testLfled that he spoke to the
Crievor by nay of a counselling session in the fall of 1984
concerning his excessive use of misconduct reports. The
Superintendent stated that the flllng of misconduct reports
should be a last resort and that repeated use of such reports
tend to suggest that a Correctlonal Officer was having
dlfflculty controlling Inmates. The counselllng session was
apparently effective, and the problem appears to have been
resolved.
Acting Deputy Superintendent Lake counselled the
Crievor in October, 1984 about removal of lnstltutlonal keys
from the Jail. He also testlfled that the Crlevor had dlffl-
culty in handllng inmate *‘tin and on another occasion inmate
11 0 II . On two occasions, the Crlevor was spoken to by Mr. Lake
concerning failure to keep medical cupboards locked.
- 14-
In addltlon, there were lncldents lnvolvlng green
garbage bags, a flashllght incident, a” air compressor tank
incident, “one of which is serious enough to merit repetltlo”.
Shift Supervisor Richard Hattie testlfled that on
“many, many occaslo”s” the Crlcvor had taken wrong head
counts. It was hls oplnlo” that although the Crievor was “con-
scientlous” and “of high moral flbre”, he would simply never
make a successful Correctional Officer.
However, an opposing oplnlon was offered by Tralnlng
Officer and Shift Supervisor, Calvin Lamming. In Hr. Lamming’s
opinion the Crlevor was a satisfactory Correctional Officer.
!
He malntalned that the lnstltutlonal rules were not conslstent-
ly enforced and that casual employees should be given addltlon-
al formal training.
Acting Deputy Superintendent 3, Lake dld an Appraisal
of the Crlevor’s work performance on December 19, 1964. The
Crlevor obtained an unsatisfactory rating under one of three
sections relating to security. .Under two other components of
security, the performance rating was “requires Improvement’.
Under Supervisor’s Comments, Hr. Lake makes the following ob-
servatlons:
“Hr. O’Hara deals with inmates at a less
than progressive discipline level. He
tends to react rather than act during sltu-
atlons that could overt further problems.
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.-
He allows sltuatlons to grow and does not
take action until the problem has esca-
lated.
Mr. O’Hara has, on numerous occcaslons,
taken instltutlonal keys home. He has not
always complied with Standing Orders, rhlch
specifically state a report is required
when keys are Inadvertently taken from the
Instltutlon.
Mr. O’Hara 1s not as observant of security
as 1s required of a Correctional Officer.
These actions are expressed in the key fn-
cldents as well as in not securfng medlea-
tlon cupboards. I personally have coun-
selled hlm on two occasions when I have
found the previously mentioned cabinets un-
locked during his duty hours.
9ther staff have approached me with regard
to Mr. O’tiara’s attitude towards Inmates.
He has a tendancy to escalate isolated slt-
uatlons and other staff are required to
provide an avenue to resolve the conflict.
At this time, I would not recommend Mr.
O’Hara to be appointed to permanent staff.”
Under employee comments, the Crlevor acknowledged
that hls “performance as a Correctional Officer has been some-
what less than exceptfonal” and requested a further appralsal
in six months.
Mr. lake endorsed the appralsal with the following
comment:
“1 agree with Mr. O’Hara’s request for a
review in 6 (six) months.
3. Lake OkI 14”
.
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The appralsal was not grieved.
The Employer contended that although there were some
disclpllnary connotations, the Crlevor had been released for
demonstrated unsultabillty, primarily for lack of security con-
sciousness. Hr. Benedict contended that the Employer did not
rely on the final incident in the sense of a culmlnatlng lncl-
dent, but in the totality of the numerous lncldents specified.
tie candidly admitted that on the evidence presented the
Employer would not be able to support a discharge for culpable
hehaviour. Hr. Benedict urged the Board to accept the thrust
of hr. Eioulet’s evidence and reJect the Crlevor’s story as
being improbable and not credible.
The Unlon argued that the evidence established a
disciplinary dismissal. Alternatfvely, lf not so character-
ized, it was a non-dlsclpllnary dismlssal. It .was Nr. Hanson’s
contention that the Board had the authorlty to review all dls-
missals whether disclpllnary or non-dlscipllnary under Article
li3(2)(c) of the Crown Employees Collective Bargaining Act. The
Union urged the Board to find that the Crlevor’s testimony was
credible and that. Officer Boulet had violated the Employer’s
Memorandum of April 14.
On the evidence, there can be no doubt that the
Crlevor’s performance as a Correctional Officer left much to be
- 17-
desired. The Employer dld take dlsclpllnary action against the
Crlevor in the form of a letter of reprimand as a result of the
key Incident. However, no such disciplinary action was taken
with regard to the Oecember 20 head count lncldent.
The evidence 1s clear that Superintendent Hartln was
aware of the December 20 incident upon reading the Shift Super-
visor’s report and the annotatlon of 3. Lake on December 21,
and upon reading the Crlevor’s report on December 24. The
Superintendent ordered 3. Lake to conduct an investlgatlon. In
retrospect, Superintendent Hartln could have rctrleved the
Crlevor’s new contract from the Office Hanager, pending the ln-
vestlgatlon. Simply stated, the Crievor’s contract could have
been allowed to expire on December 91, 1984.
The evidence tends to establlsh that the Superlnten-
dent was satisfied with Mr. Lake’s appraisal recommendation of
December 19, 1984, that the Crlevor should be assessed again In
another SIX months. Had a further appraisal been conducted
with no appreciable improvement on the part of the Crlevor, the
Employer may very well have been justlfled In termlnatlng the
Grlevor’s employment.
Having reviewed the evidence carefully, the Board 1s
satlsfled that the Employer termlnated the Crlevor’s employment
as a reaction to his conduct of January 14, 1985. In our
opinion, that lncldent was deemed by the Employer as “the last
sIrawn and In that sense was a culnlnatlng Incident which,
Justified a review of the entire employment record. Accordlng-
lY. we would characterize the Employer’s actlons as disclpll-
nary In nature, and In the circumstances dlsmlssal without just
cause.
Cfven the seriousness of the security breach on Janu-
ary 14, 1985, It Is difficult to understand why the Employer
failed to conduct an lnvestlgatlon. The flllng of two totally
unsatisfactory Occurrence Reports, cannot be said to constitute
an lnvestlgatlon.
( On the evidence, the Board finds as a fact that the
first floor cell block area was left unsupervised for a brief
period of time-on the day in questlon. The length of that
unsupervised period 1s unclear, however it is unlikely to have
exceeded several minutes.
The Board does not find that elther the explanatfon
of the Crievor or Officer Boulet is entirely credible. In the
circumstances, fault can be attrlbuted to both Officers and It
is somewhat slmpllstIc and inequitable to place all of the
blame on the Crievor. However, we hasten to add that the
relevant procedures In effect In January, 1985 were apparently
sufficiently unclear that the Employer fmplemented new
procedures following the Crlevor’s release.
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The Board finds that the Crlevor did resume hls Post
#4 rcsponslbllltles as the Floor Officer when he re-entered the
cell block area after recclvlng the telephone request. The ev-
ldence establlshes that an officer on a lunch break is expected
to return to duty In such circumstances. In our oplnlon, the
possible exchdnge of the “0” key Is not a determining factor.
Clearly, as the Post 14 Officer, the Crlevor should not have
left the floor as he did.
In the circumstances, Mr. Boulet became the only
remaining Officer on the first floor. He knew, or ought to
have know”, that the Crievor had escorted the two Inmates to
the basement area. Mr. Boulet made no attempt to ascertain the
Crlevor’s whereabouts before leaving the floor with the third
Inmate. Admittedly, Mr. Doulet acted on Impulse. Had he done
otherrlse, the Incident would not have occurred.
The evidence 1s undlsputed that the Crlevor left the
floor before Officer Doulet. Clearly, both Officers violated
the Order of April 14, 1984.
Hr. Boulet testlfied that he stood next to the Crle-
vor in the cell block when the telephone call was received re-
questlng the lnmate escort. The evidence establishes other-
wise.
- zo-
The Board dCCeptS Superintendent Martin’s evidence
thdt he encountered the Crievor escorting the two Inmates to
the basement ds the more probable account of what transpired.
It 1s difficult to understand why Superintendent Hartln would
fdll to observe the Crievor on the return to the First Floor,
if in fdCt, the CrievOr returned by the front stdlrrdy. It Is
also diFFIcult to accept the Crlevor’s explanation that he ob-
served Officer Boulet standing o~utslde the First Floor cell
block drea on the CrieVOr’s return trip. Similarly, it 1s
difficult to understand the ratlonale for the Crlevor’s entry
into the First Floor log book at 1242. In cross-examination,
the Crlevor admltted that he did not make a Full physical count
prior to the actual recording of the count.
The Board is sdtisfled that lax SeCUrity procedures
were endemic to the institution when Superintendent Martin
assumed his responsibilities In October of 1983. To his cre-
dlt, Mr. lidrtin, over a period of time, set out to tighten se-
curity procedures. In that regard, he Faced some opposition
From Shift SupervIsors who presumably were attemptlng to pro-
tect Fellow employees. The evidence disclosed that improper
head counts were conducted on numerous occasions, without
penalty to the employee Involved. Similarly, a great deal of
evidence was adduced to establish that the removal of lnsti-
tutlondl securfty keys, WfthOUt dttrdCting d pendlt,', Wds not
d” ““CO”l”bO” OCCUrrdnCt. The Board Is satisfied that the
- 21-
Institution’s rules, regulations and procedures were
inconsistently applied and enforced.
In all the circumstances, the Board is satisfied that
the termfndtlon of the CCieVOC wds not d CeledSe but CdtheC a
dismissal without just cause.
Having so Found, the Board is required to fashion d
remedy. The issue of an appropriate remedy In such
circumstances has given previous panels of the Grievance
Settlement Board considerable difficulty. The Ontarlo
DivIsional Court was called upon to address that issue in the
Application For JudiCidl Review in Hlller and HdcPhail, 530/82,
531,8.2 (Verity). The Court reversed the Board’s remedial
Flndlng. In a Judgment delivered by Mr. Justice Craig on Hatch
27, 1964, the Court stated:
“The collective agreement dlstlnguishes
clearly between ;;~:rn::;al’ and
‘termination’. . 3.11 and Art.
27.6.21
In addition, the Act (Crown Employees
Collective 8argalnlng Act) provides for
grievance in the event of dismissal (Sect.
18(2) and the Arbltratlon of disputes by
the Crlevance Settlement Board (5.19(l)).
Employment was terminated by notice and the
Board found as a Fact that termination was
a dismissal without just cause.
The Board then came to the question of
‘remedy’ and held that Art. 3.11 prevented
it from reinstatlng the Crlevors and also
From making an award For lost wages.
- 22-
In our oplnlon the BOdCd gave Art. 3.11 an
lnterpretatlon which IS patently unreason-
able in so doing (the highest possible
test) i that is in the light of Art. 27.6.2
OP the COlleCtiVe Agreement dnd Sections
18(2) and 19(l) of the Act.
It is our view
that the Board was not limlted to a remedy
of 1 week’s pay or 1 week’s notice by Art.
3.11.
Also lt 1s our oplnlon that, in holding
thdt It could not Fashion a remedy beyond
Art. 3.11, the board Implledly erred In
jurisdiction pursuant to the Act. That is
the Act clearly provides a discretion to
Fashion d remedy fOC the applicants In the
circumstances.
The 6OdCd recognized the distinction
between ‘dismissal and ‘termination’ in
flndlng dlsmlssal without cause, but when
lt turned Its attention to remedy, it
Indicated that termination included
dismissal. We would add that the Board
cannot amend the Collective Agreement
(Art. 27.12).
The application is therefore allowed; the
award herein is Set aside and the matter Is
remitted to the Board to be dealt with
according to law. Costs to the applicant.”
On February 18, 1986, the Ontario Court of Appeal
dlsmlssed an appeal from the Judgment of the Ontarlo Dlvlslonal
Court. Chief 3ustlce Horldnd delivered the following reasons:
“Counsel for the appellant raised for the
First time on the motion For leave and
again before this Court the argument that
the employees in question were not
‘employees’ under the Crown Employees
Collective 8argalning Act by reason of
section l(f)(vl).
Having regard to the record before thls
Court, and the manner in which the case was
dealt with before The Grievance Settlement
Board, we consider that lt would be unfair
- 23. I f-
c.
For thls Court to attempt to determine this
Issue.
Furthermore It is no longer open to the
appellant to put In issue the Flndlng of
the Board that the employees were dlsmlssed
without cduse.
We are in agreement with the conclusion of
the Dlvlslonal Court. Accordingly the
appeal 1s dismissed with costs.”
Accordingly, It is beyond dispute that the Crlevance
Settlement Rodrd 1s not restricted by the provisions of Article
3.11, and has the authority under the broad remedial provisions
of Article 19 of the Crown Employees Collective 8argainlng Act
to Fashion an appropriate remedy, having regard to all the
circumstances. Section 19(l) authorizes an arbitration board
to determine the matter in dispute and that its decision is
“Final and binding upon the parties”.
As indicated previously, the Crievor signed hls most
recent employment contract on January 14, 1985, which WdS for
the term January 1, 1965 to and lncludlng December 31, 1985.
The general rule is that a party suffering loss because of a
breach of the Collective Agreement is to be compensated In such
d manner ds to place him In d positfon that he would have been
In had the wrong not occurred. Relnstatement is the approprl-
ate remedy In most cases For Failure to prove just cause.
The authority of Arbitrators to deny reinstatement to
employees discharged without just cause~was consldered by
-
- 24 -
irbltrdtor Chrlstle in Re Corporation of the Clty of Toronto
and Cdnddidn Union of Public Employees, LOCal 79 (19851, 18
L.4.C. (3dl 187. In that case the Arbitrator dld reinstate the
Crievor, although he rejected the proposition that Arbitrators
have no jurlsdictlon to refuse reinstatement where no just
cause For disclpllne had been established.
At p. 196 Arbltretor Christie made the Following
comment*:
“I have made it clear that in my oplnlon
the city did not establish to this board of
arbltratlon that there was ‘some’ cause For
dlsclpllne, but I must. go on to say that,
notwithstanding the lack of arbltral
precedent, in my opinion the presence or
not of ‘some’ cause For discipline 1s not a
very significdnt Factor in determining
whether addltlonal damages should be
substituted For relnstatement. The
important considerations must surely be the
apparent non-viability, or otherwise, of
the employment relatlonship and, perhdps,
whether the griever’s employment was only
very short-term at the time of discharge.
Those are the factors that must weigh
heavily in the balance between the
employer’s 1egltImate interests and the
employee’s legitimate .lnterests with
respect to celnstdtement. Whether or not
the employee has In Fact been guilty of
some minor misconduct is almost irrelevant
In that balance. Major misconduct is, of
course, a very different matter and enters
importantly into the question of whether
there is a viable continuing employment
relationship.
In sum. we have not Found that there was
‘some’ misconduct by the grlevor, but not
only do I not agree with the submlsslon by
counsel For the union that there must have
been ’ some’ cause for disclpllne for us to
/
I - 25-
have jurlsdlctlon to substitute Further
damages For reinstatement, I do not think
thdt such a Finding is critical to the
question of whether we should exercise our
Cemedidl authority by substituting Further
damages For reinstatement.”
In the instant Crlevance, the Board does not agree
thdt relnstdtement Is dn dppCOpCfate remedy.
At all relevant times, the Crievor was employed under
a term contract as a Correctional Officer 1. There is sfmply
no provision In either the Collective Agreement, the Public
Service Act or the Crown Employees Collective Eargalning Act
that compels an employer to renew a term contract. In
2dctlcular, Section 9 of the Public Service Act states that the
employment of a public servdnt ceases dt the eXpiCatiOn of d
term contrdct.
On the Facts of this case it 1s not possible to
predict with any degree of accuracy whether the Crlevor would
have survived for the Full period of his term appolntment. On
the basis of an unsatisfactory performance appraisal on
December 19, 1984, the Crlevor was to have been evaluated again
in six months. It is questionable whether that subsequent
appraisal would have produced a satisfactory result For the
Crlevor, given the number of Employer concerns with the
Crievor’s general performance. On the assumption that the
Crievor did survive until December 31. 1985 it is also
- 26-
questlonable whether he would have been given yet dnOtheC term
contract.
Therefore, with these considerations in mind,
relnstdtement would be dn inappropriate remedy. However, the
Crlevor shall be compensated by way of damages In the amount of
SIX months salary minus any income received by the Crlevor
during that period. This is not an appropriate case For the
dwaCd of interest.
The Board shall retdln jurisdiction in the event that
the Parties experlencc any dlFFlcultles in calculating the
appropriate compensdtlon.
DATED at Brdntford, Ontario this 9th day of June. 1986.
‘R. L. yrlty. C.C. - Vice-Chairman
“I dissent” (See attached)
C. Milley - Member
I
In the matter of an arbitration
CPSFJ (Michael O’Zar.9)
and
Tne Crown In Right of Cntarlo
(Hlnlstry of Correctional ServIce3)
Dissent of Oeoxe Ylllep IEmplo.ver ?!cmlnee)
I t,;ve resd tiie majority award and,. wlth due respect tc my
collsspes, L wotlld heve reac’h9d a different ccnclaslon.
‘Ike espentlal fact3 cf the case 9re not. in dls?llte and are
3::a-9rlzed 13 the m3jcr?Y; eward.
The issue here is cric of cberacterlt?ng the ending of the
grievorfs employment relstlonshl? a3 either 3 dlsclpllnery
dlsrlssal wlt’nln the zzaning of Section ia12)Ic) of the
Crcrn EmFlo;ees Collective Sar~alnlng Act or a3 a termlnatlon
for Eenonstrsted Un3UitrblIlty within the meaning cf Article
3.11 of tS.e Collective Agreement.
If t:Le fcrmer cb9racterftstlon prevalrs, a further deter7lnatlon
is mode whether the tenlnetlon ?s fcr just cause, ?f the letter
prevails, then that 1s the end of it ss neither the Act nor
tie collective agreement provldes the Eoerd wlth d?scretlon
tc fashion a remedy for ternlnatlcn.
mere are a considerable number of unclasslfled employees in
the public service end this issue, which 1s a complex on+, has
cc?9 on stra&n on a number of occasions. However, notwlth-
standing 6oerd jurisprudence on .the nattcr, there dces not
appeer to have been an ertlculatlon or concensus of what,
la the dlstlnctlon between termination end dlsnlssal. The
ir. fact,
d~fficultles involved lnmaklng the distinction were, perhRp3,
best expressed by the Board’ in the Boucher and Trumblep ca3e
(218/7@)(Prlchard), where it was said:
“Without llmltlng matters we invite submlssiona on,
we are particularly concerned wit:? t~he following
questions:
(1) Yhat 1s the appropriate dividing line between
termination and dlsclpllnary dlsmlssal? Tow
should the terrr. “termination” be defined?
How broad are the permissible grounds for E
termination? When, iI ever, 13 inadequate
performance a dlsclpllnary matter in this
~pn,“;;;g,‘$$,&$s should guide our process
-2-
!iotvlthstandlng the ccn?lexltles experienced by other board3
;r’hen considering the vexatious issue of chnracterlzatlon, the
me Jorlty report here appears to have disposed of the matter 741th sl.npllcity and dispstch:
“Hsvfng revlowed the evidence carefully, the Board
i3 satlsfled that the Employer terminated the
Griever’s employment as a reaction to his conduct
of January l&,1985. In o’ur oplnlon, that lncldent
~8s deened by the &ployer a3 “the last 3traw” and
in that 3ense wa3 a culminating incident which Just-
ified a review of the entire ew1wmer.t reccrd-
Acccrdlncly, we would characterize the Zmployerl s
ections 33 dlscipllnary ln nutwe, and in the
circSuznatances dlsmis~wifhout Just cau3e.
?s7?%?s!3 sdd A’ -- e-,
Thus, the rsascning 1s that because the January 1k incident
j~ss “the last straw” and in t’nat Sense a culminating incident,
therefore, .it must follow that the Employerls actions were
dlsclplinary in n4ture.
I
hprle?ly, the Doctrine of the Culmlnctln~ Ancident can apply
only in the context of a discipllnery action and not in one
of non-disclpllne. !fL:h respect, 1 do not think this follow3
and the award advances no supporting reasons why the definition
of the doctrine should be 30 clrcumscrlbed. On the contrary,
in case @li~7/&5, OL392(Merv White) end the Llqzor Control foard
of ?r.+?rlo (Draper), the unonfmous decision said:
“The doctrine of the culminating incident 13 commcnly
discussed in the context of employer dlaclplinary
action. Thus in Brown and aeatty, Canadian Labour
Arbitration, Second Edition, at peges 475476, the
author3 state: ‘The Doctrine of the culmlnetlng
incident delineates those circumstances in which it
is proper fo: the employer to consider an employeefa
cast employment record in metters pertaining to dlsc-
1p:ine ,I And fu:rther: ‘It follcis from the def?nit?c::
of the doctrine that as a condition precedent to its
Invocation, an employer must afflrmatlv8ly prove some
final incident of misconduct which itself 1s deserving
of stme dlscipllnel. Xowever, the doctrine has also
been applied by arbitrators in cases cf non-dlsclpllnsry
dlsmlssal for innocent ebsenteelsm. See Brown and
aentty, op.clt.,at p.372.”
“It therefore appears that the dcctrlne is properly
applied in cases of alleged unjust dismissal whether or
not the dlsml33al 1s disclpllnnry in cheracter.
Accordingly, we hove concluded that the doctrine applles in the clrcxzstances present here reqrdless whether
the Grlevorls dlsmlsssl is cheracterlzed a3 dlsclp-
llnar~ or non-dlsclpllnary.”
r~ (,
-3-
Thus, in non-dlsc~~lln0ry cases where an e7ql0yee~~ job Perform
manco can no lcnger be tolerated, it aoPeers eminently reeson-
able thst the employer has the right tb use a culminotlng inc!d-
ent tc prompt n review of an employe P’S work record. Hosrever, .to hold that all calmlnatlnq incidents leading to reviews must
te c%racterlzed as dlsclpllnary would not seem to be well-
founded. Such an appllcetlon would render Article 3.11 of the
collective agreement mesnlngless.
In CPSEJ (S. Church) and Hinistry of Ccrrectional Services
(761/@3)( Samuels), the Board said: 0
OX TEl-!INATICN
Gn the other hand, if this matter is to be treated es a
teralnntion under Article 3.11 of the collective agreement,
then in our view there was a bona fjde termination, and this
bc.rd ca xot review .mena<enent’s declslon.
lTe?minnt1rn* under Article 3.11 1s akin to ‘release’ under
.cectlcn. 2izt:~ of the Public Service Act. Ihis is b ..,.r-3isclp-
1lr.ax-y conclusion of employment, and may occur ‘when the evidence
disclcses that %he employer based the tenlnation upon a eeneral
vler ttat the griavor 1s attitude and/or capacity fell short dI’
the level required for satisfactory perfonance of his or her
duties and responslbllltles~(Lebert, 295/83, at pane 2a). And
the em-,l,oyerls view may be based on conduct which could be the
ssb:ect of dlsclpline, if the conduct demonstrated the lack
of proper attitude or capacity for satisfactory performance
of the :ob (Keane, 596/81, at pages 13 2/3 to tha top of 14).
In t3ls latter respect, we dlsagree with the Board in Ambrey,
423/&, which held that ‘where an employer tries to bring an
end to the employment b.y reason of a desire to react to
ccnduct on the part of an employee, this must be viewed as e
dismissal rather than a mere termlnatlon’(at the top of page 11).
:‘na issue le not whether the employer 1s ‘reacting to ccnduct’,
but whether or not the employe r her honestly ccncluded that the
Erievor lacks the proper attitude OF capacity for the satls-
factory performance of the job. If this ccnclusion is reached
because of culpable conduct, it does cot change the fact that
it was a concluvlon concerning the grlevor’s attitude end
capacf ty.
IfIn the circumstances of this case, if the natter is tc be
treated as a termination under Article 3.11 of the collective
egreenent, then we have no hesltatlo; in concluding thet
management’s decision was bcna fide.
Ar;aln, in CfSm (John W. Tynela) and Ministry of CorrectiOnal
Services (557/84)(JOlliffe), the Board said:
-4-
“Notwithstanding his personal lntegrlty and fin ccnvlctlons
abcgt ;that is right end what 1s wrong, we are satlsfled that the
Erlevor wes not aoltable or adapteble for duties at a Correct-
focal Centre. The conclusion must therefor be that ttisre were
valid reasons fcr terminating employment which constituted
j,xst and sufficient cause for the dismissal of the grlevor.”
‘lh~~s, in both the above cases the boards resched the conclu-
s!on tkst If the grlevor demonstrated unsuitebllltp for the
jcb bf reuacn of unsat.Isfsctory performance or lack cf a
proper s ttl tude, the Employer had the right to termlnete hla
encloynent under Article 3.11. In tile “Church” case the board
ela‘rc-at.es further azd states t’cat t’ne Plployer’s vlev cf
~~~s~l;sbllIty maj- also be bssed on condsct which could be the
s,lk,ject cf dlaclpline.
She n;.jcr?t; award in the C’ifara case would asoear to be at
cc.:rlete odds with the view expressed by tha i’thurch” boerd
ar.d cult of step with the opinion of the “?p’iels” boerd as %ell.
I: Gt%ara, the evidencs shcws snd the mejcrity award egreea
that the grlevcrls job perfonance left much to be desired.
:rls shift SQoervlsor testilled that althcugh he was ccnaclent- ..- lcus and cf high moral flbre, he simply wculd never make a
s,;ccessful Ccrrectlonal Officer. The January 1!4,1955, Incident
of 1ea.vlr.g hit ;ost unsupervised Vas the culminetion of a 10~s
list cf zisdemeancura by the griever cor.sistlng of serioca
Srcac:?+s CT lnstft~~tlonal .securfty a’lch as; incorrect head
co~lnts; n:ninouingly leaving the jail with the securlt:: ker;
failure tc keep medical cupboard locked; failure to turn cff
air compressor tank; faIlWe to use a flashlight when ckeck!n;
locates; end failure to remove garbage begs frcm the ccrrfdor.
it 1s also slgnlflcant that at the time cf his release the
;r!evcr’a ds?ortment and job performance was under crltlcal
revlaw and he had been ccunselled that lie must shcu lmprove-
:,ent. In t’re light of grlevorls dlsclplicsry record, the
incident of January 14th during hls review period and his lack
cf security conacloucneas, it is net unreesccable that the
*.p.plcyer wculd conclude that he ~8s unreliable and demonst-
rably Ulnsuited to the jc.b of Correctlcnal Officer. iience, his
t?r;s!?atloc under Article 3.11 was justlfled.
‘the majority awerd, among ether things, refers to the evidence
that Officer Boulet also, had viole ted security reEula tlons:
t:?st s proper lrivestlpstlon had not been cerrled oUt fclloslng
t:c.e January 14th incident; that security procedures ln the
institution had been: lax. ft Is tc be noted, ?Lcvever, that
such netters ere directed toward consideration by ths Board
r.eJorIty cf an appropriate remedy in what 1s cetegorlzed as
dlsmlssel wlt'nout just cause. These matters do not address
t:-.s ?rlmary isstie of cheracterizatlon Of the Fmploysr’s
sctlon itself and; in that regerd,further comment by ma
uould serve no useful purpose.
.
For t:7e ebcvc reasons the ~plogcr, ln my respectf?ll oplnlon, ires fully J~:stifled ln termlnetlng the griever’s, serv!css and I
xc,~ld have so warded.
d J1
c