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HomeMy WebLinkAbout1985-0815.Carter.88-08-29..~. I / ” t ‘I ; ‘) ONT/IRIO EMPLOYES DE IA COURONNE 8: ,I CRcwmEMPLOYEES DE L’ONTARIO .’ / GRIEVANCE CqMMISSION DE “. ,aa BOARD SElTLEMENT REGLEMENT DES GRIEFS Between: at5185 IN THE &TTER OF AN ARBITRATION THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD Before: For the Griever: For the Employer: OPSEU (R. Cart~er) and The Crown in Right of Ontario (Ministry of Government. Services)’ .. I. Springate Vice Chairman J. McManus Member A. Stapleton Member I. Roland Counsel Gowling & Henderson Barristers and Solicitors E. Hipfner Staff Relations Officer Human Resources Secretariat Grievo'r Employer Hearings : May 28, 1987 January 22, 1988 The union contends that the grievor was suspended for a day without just cause. It submits that the grievor did nothing’which would warrant him being disciplined.. The ,’ union accepts, however, that.if the grievor did engage in misconduct warranting d iscipl.ine, a one-day suspension was appropriate. The grievor is employed as a cleaner at a government-owned building complex in Sarnia. ,,The complex ‘consists of a provincial court building and a registry building which are connected by an enclosed corridor..~ The grievor has been employed as a cleaner at the complex for some 12 years. Initially he was employed by the County of Lambton. nor the past seven years, .however, he has been with the Ministry of Government Services. DECISION when 16 years of age, the griever was involved in a car accident~which left him unconscious for 10 months. He subsequently had problems connected, in part, with the proper functioning of his brain. In large measure, he was able to overcome these problems through years of physiotherapy and speech therapy. His speech, however, remains slow and deliberate. Ms..~Kelly Gray, who figures-prominently in the events described below, was asked by union counsel if at the relevant time she had been aware of the grievor’s medical . .-, -2- history. She replied~that sh'e had not. She added, however! that the grievor "did take his time talking". At the time of the events giving rise to these proceedings, the Ministry utilized not only its own staff to clean the building complex, but also a contract cleaning service run by Mrs. Gail White. Mrs. White did much of the cleaning work herself but also employed a number of membe.rs of her family to assist her. Included in this group were her mother, her husband, her son, her daughter and her three sisters. One of Mrs. White's sisters is Ms. Kelly Gray. Mrs. .White was out of town on vacation on Junee28, 1985, but .- ; she had previously arranged for Ms. Gray to work in the registry building that evening. Ms. Gray subsequently ~complained to Mrs. White that she.had been harassed.by the griever.. Mrs. White passed this complaint-on to Ministry officials, who after an investigation suspended the grievor for a day. The letter advising the ~grievor of his discipline indicated that it was because he had harassed MS. Gray and interfered with the completion of her duties. At the hearing the union challenged Mrs. White's general credibility. It is clear on the evidence that Mrs. White -followed a practice of.-making false entries in a sign-in book by adding the names of. relatives who had not, in - 3 - fact, worked on the days indicated, On at least one occasion she directed her daughter to also make such an entry. Mrs. Whi,te-testified that the false entries .were made only to satisfy the grievor who.frequently check,ed the sign-in book to see how many persons Mrs. White had working on her ~. contract. Given the griever's positionin the Ministry's hierarchy, this explanation is simply unbelievable: The false entries were more likely made 50~ as to mislead senior Ministry officials into thinking that Mrs. White had more people servicing her contract than was in fact the case. Although Mrs. White lacked credibility as a witness, there is no question-but that she did rec,eive a complaint from Ms.-Gray, and that she passed the essence of that complaint on to Ministry officials. The issue in these proceedings is the accuracy,of Ms. Gray's complaint. Before turning to consider that issue,; however, we feel it appropriate to refer to one of the exhibits.filed at the hearing, namely exhibit 6. This document~'records comments made by Mrs. White to Ministry officials-when they were investigating Ms. Gray's complaint. According to the document, Mrs. White claimed that on occasions 'other than June. 28, ~,~i to himse ,l working. 1985, she had to tell the grievor "to keeps his hands f" and to caution him abut impeding her from .When testifying in these proceedings, Mrs. White -4- raised no similar claims.. Further, there is nothing in the evidence to suggest misconduct of a sexual nature on the part of the grievor towards Mrs. White or any of her employees.. The evening of Friday, June 28, 1985 was the first time Ms. Gray had worked in the building complex while her sister had the cleaning contract. She had worked in the complex some time. previously when someone else held the, contract, but never by herself. Ms. Grey was in the registry building briefly on June 27, 1985 with Mrs. Wh~ite to learn what was expected of her. Ws. Gray testified that she had twice before seen the grievor iA passing but had not spoken, with him. The griever testified that although he was not.~ certain, he did not believe that he had met Ms. Grey prior to the evening-of June 28th. On the evening in question, Ms. Gray was expected. to clean most of the.registry building, which is a one story building with a basement. The only parts she was not : responsible for werethe floors of several washrooms. The grievor was assigned to clean the washroom floors. The major part of his assignment, howeve'r, was to clean the main floor and basement of the court building. Beca.use of a tendency ,to wander about,the registry building, the grievor had been instructed-not to go:.into the registry building except as -5- necessary to perform work specifically assigned to him. The registry building contains a number of offices utilized by court officials. With. the exception of the corridor linking the' two buildings, .a11 of the areas referred to below where MS. Gray claimed to have seen the grievor were in the registry building. In addition, they were all areas the grievor had been instructed to stay away from. On June 28th the grievor commenced work at 4:30 p.m. When testifying in these proceedings he outlined in some detail what he did that evening. His evidence indicates that' he kept himself busy cleaning ~the court buildi.ng .and the washrooms inthe registry building. He stated that he had only.gone into the registry building on four occasions. Once ..: was to clean the washroom floors. The second time,was to advise a security guard that someone was outside the court building wanting to see him. On the ~third occasion'he was looking for the woman who operates the cafeteria because her. son was outside with some supplies. The final time was at the'end of his shift when he signed out: The grievor testified that he encountered MS. Gray twice during his trips to the registry building, and had a~ brief conversation with her on both occasions. If the grievor. is to be believed, he put in a full evening's~work, and engaged in no wrongdoing whatsoever.-- ~'. .~ ,. . . - 6 - MS. Gray’s version of what occurred.is quite different. According to Ms. Gray, she started work at about 5:00 p.m.. She began by going to a closet in the corridor linking ,the two buildings to fill a bucket with water and some detergent. She testified that when she turned around with the bucket.the grievor was standing there watching her. According to Ms. Gray, she told the grievor that he had scared her,.which caused him to chuckle. She stated that he then mentioned that there was, an ashtray in the corridor which had not been cleaned the night before, to which she replied that she was not:responsible for what had been done the night before. The grievor denied seeing MS. Gray in the corridor at about 5:bO p.m. He testified that at about 9:00 p.m. he saw her in the-corridor getting ready to leave, at which time,he noticed an ashtray which had not been,cleaned. He stated-that he pointed out the ashtray and indicated .that Mr. Rene Marcoux, the acting manager, would .not be pleased if it were not cleaned. According to the grievor, Ms. Gray, replied that she did not care about the ashtray and that’it meant nothing to her. MS. Gray testified that the grievor visited her. in the registry building just after she had finished cleaning the land registry office. Her version of what occurred was as follows: The griever told he,r that she had not turned off - 7 - the right lights in the office, and asked her to unlock the door so he could show her the proper lights. MS. Gray replied that the security guard would check the lights, to which the grievor replied that this 'was not the security guard's job, and that Ms. Gray would get into trouble if the proper lights were.not turned off. Ms. Gray opened the door of the registry office. The grievor entered the office and' 'went over ~to. a light panel. He asked,.Ms. Gray to join him by theme panel. At first she refused, but subsequently walked part way towards the panel. .The~grievor then changed the lights. Ms. Gray then went to clean the lobby of the building. The gr,ievor followed her and watched h8C work for about 15 minutes. For his part, the grievor~denied that any of these events had occurred. He also denied being with MS. ~Gray at the rel~evant time. MS. Gray testified that when she was just about to start cleaning the family court wa,iting room shortly prior to 7:30 p.m., Hr. Wes Colley, a gove.rnment cleaner, came to pick up a vacuum cleaner. According to Ms. Gray, she complained to Mr. Colley that every time she tur~ned around the griever was standing-there, and that he was sneaking up on her. Ms. -Gray ,stated that Mr. Colley advised her that she should just ignore the grievor and he would leave. Mr. Colley was not called as a witness. -a- Ms. Gray testified 'that when .she was cleaning the family court waiting room, the grievor came up behind her and the following events occurred: Ms. Gray told the grievor that she wished he would not sneak up on her. The grievor did not reply, but just staredat her from about three.feet away;.' The grievor then questioned Ms. Gray about her ,mother and her sister, Mrs. White'. Ms. Gray asked the grievor if he did no~t have any work to do. The grievor replied that it did not matter because he had the whole night to do it. Ms. Gray then went into an interview room; She testified that she felt uncomfortable with the grievor being‘there since earlier inthe evening he had been.eyeing her and-had-tried to "lure" her into the registry office. On returning to the waiting room, Ms. Gray told the grievor that she had work to do. In response, the grievor discussed Gail White's holiday a,nd asked Ms. Gray when her mother would be in again. -The ._~,. .: grievor then left the area. ,According to Ms. Gray, the. qrievorr was with her on this occasion for at least 15 minutes. It was Ms. Gray's testimony that later in the evening she was cleaning Judge Kent's of~fice when she noticed the qrievor standing by the doorway watching her. Ms. Gray went into a secretary's office but the g.rievor continued to watch her. According to Ms. Gray, she told the griever that - 9 - she wished he would say something and not just sneak up on .her. In her examination in chief,.Ms. Gray testified that the grievor had been with h8C for about 10 minutes during which time he did not say anything to her. In cross-examination, however, she indicated that when in the secretary's office she had carriedon a conversation with the gr~ievor for about three minutes. The grievor denied being in the area of the Judge's Office. -Ms. Gray testified that she was cleaning in the Crown Attorney's area when the qrievor came and -stood in a doorway watching her. She stated that the grievor stayed in the area for about 10 or 15 minutes, during part of which time he "stared (her) up,and down". Ms. Gray testified that she exchanged a few words with the grievor, but mostly ,. ... ignored hi.m in the hopes that he would go away. MS. Gray stated that she did not actually ask the qrievor'to leave, ..- because she did not want to be rude to him. The grievor denied being in the Crown Attorney's area. It was Ms. Gray's evidence that after the events -.. described ahove she went.,to clean the family court office. She stated that while she was cleaning the offic'e the grievor came and started watching her. She further stated that as ., .~ . she was leaving the office Mrs. Fay Wilson, the woman who ‘. - 10 - runs the cafeteria, arrived and asked the grievor where the security guard was, to which the gr~ievor replied that he was on the other with ~Mrs. Wi acknowledged side of the building. The grievor then left lson to find the security guard. The grievor talking to Ms. Gray at the time in question, although he described what occurred somewhat differently. According to the griever, Mrs. Wilson's son was at one.of the doors with supplies for his mother, but the security guard refused to let him in. The grievor then VOlUnte8C8d to find Mrs. Wilson. While looking for Mrs. Wilson, he came across -. Ms. Gray in the family court waiting room. He asked Ms..Gray if she had seen Mrs. Wilson; to which 'Ms. Gray replied that she had not. MS. Gray, on her own initiative, then advised the grievor that she did not like working in the building and that this was to be her last night working there. At~'that point Mrs. Wilson arrived and asked where the security guard was. The grievor then accompanied Mrs. Wil'son pa'rt of the way towards the security guard's station. . It was Ms. Gray's evidence that after the grievor had left with Mrs. Wilson, she.did some cleaning in the family court office. When.she was leaving the office, Mrs. Wilson came by and then went downstairs. The grievor subsequently approached her and told her about a conversation he had overheard between Mrs. Wilson and the security guard - 11 - wherein Mrs. Wilson indicated that she was displea'sed with the security guard because he had refused to let her son Pinto .the building with some supplies. Ms. Gray testified that on this occasion She stopped working for some 8 to 10 minutes to listen to the grievor recount what he had overheard. The grievor denied having such a conversation with- Ms. Gray. In addition, he testified that he had not overheard the conversation between Mrs.. because he,had been busy mop. ~8 stated that Mrs~. Wilson .and the security guard. in a nearby cubby vacuuming a dry Wilsonlater passed by the cubby a,nd told him that the security guard had stopped her son from knocking on a window to advise her that he was there. Later, when being cross-examined by employer'counsel, the grievor gave a somewhat different version of what had occurred. He stated that when Mrs. Wilson ‘came by after talking with the :., security guard, he asked her if everything was okay, to which Mrs. Wilson replied that she did not want to talk about it. The grievor testified that it was on a separate occasion that Mrs. Wilson told him.about the security guard stopping her -. .., son from knocking on the window. When pressed about when this particularconversation had taken place, the grievor replied that he could not recall when it had occurred. Ms. Gray testified that subsequent to the.events described above, she went into a manager's office and cleaned it while the grievor silently watched her for about 15 minutes. In response to,a question from union counsel, MS. Gray vindicated that she did not tell the grievor to leave on this occasion because, again; she did not want to be rude to him. The grievor denied being with Ms. Gray while she cleaned the manager's office. MS. Gray testified that later in the evening, when cleaning a hallway, she heard "a guy" at a nearby exit door. According to Ms. Gray, the grievor came up and advised .. her not to let the person in. Ms. Gray went to the door to talk~.with the individual, who indicated that he had. some keys to give to the security guard. Ms. Gray opened the door and‘ took the keys. She testified that the person who gave her. the keys would have seen the grievor. Ms. Gray testified that after she received the keys she continued to clean the hallway while the grievor stood and watched her for about five minutes. It was the grievor's evidence that he was not l,:,;_ . present when Ms. Gray was handed any keys. The individual who allegedly gave Ms. Gray the keys was not called.as a witness. Ms. Gray testified that after the events described above, she spoke with the secur.ity guard who cautioned her not to talk to the grievor. According to Ms. - 13 - Gray, she replied that she was not speaking to the yrievor but he did notwant to leave her. The security guard was not called as a witness. Ms. Gray testified that she’ left the building .~ complex at about 8;30 P.m. She stated that at the time she noticed the grievor standing in the.lobby of the registry building watching her leave. It will be recalled that the _- grievor testified that he had seen Ms. Gray shortly prior to when she left, although he put the time and pl,ade at about 9:00 p.m. in the corridor between the two buildings. The grievor testified that he had not received any complaints about his work performance on June 20, 1985. Mrs. Olga Symeonakis, his supervisor; was~questioned as,.to whether she had occasion to talk to the grievor about the quality of his work that evening. She testified that she was always telling the yrievor that he was not d.oi.ng his job right, but added that she probably did not do’~so with respect to the evening inquestion. As had been previously arranged, Ms. Gray next worked in the registry building, this time with her mother, on July 2, 1985. She did not encounter the grievor. Two days later Mrs. White again ask~ed Ms. Gray to works in the - 14 - registry buildi the time which *g. Mrs. White had a serious eye problem at meant that she herself was unable to work. Notwithstanding her sister's eye problem, Ms. Gray declined to work in the building. As justification for not doing so, she referred to the events of June 28th and indicated that she was afraid to be alone with the grievor. Under cross-examination, Ms. Gray indicated that she had applied for. unemployment insurance benefits and agreed with union counsel that if she were to work for her sister on a regular basis she would have lost her. entitlement to those benefits. The difficulty we ,face in this case is deciding whether to believe the evidence given by the yrievor or that given by Ms. Gray. As noted by union coun-se1 in his. final submissions, Ms. Gray may have been motivated to raise false allegations against the gri'evor so as to make it easier for her to justify her refusal to continue to work for her sister. On the other hand, however, if the events occurred as claimed by Ms. Gray, the griever would have been motivated ._ to te~il a different story so as to try to protect his employment record. The evidence given by both the grievor and Ms. Gray paral-leled the- statements they made to Ministry .: officials when.they initially investigated Ms. Gray's complaint. Mrs. Wilson, Mr. Colley, the security guard, and the unnamed individual who allegedly gave some keys to Ms. "' . - 15 - Gray may have been able to assist'us in deciding what occurred on the evening in question. As..already indicated, however, none of these individuals was called as -a ~witness. There is not much to choose between the version of events given by Ms. Gray and that advanced by the grievor. On the balance of probabilities, however, we are led to favour the version advanced by Ms. Gray. Our reasons for doing so relate primarily to the griever's evidence relating to Mrs. Wilson and the security guard. In this regard, the ~grievor testified that he had asked, Ms. Gray if.she knew where Mrs. 'Wilson was, to which she replied that she ,did not and then., for no apparent reason, added that-she did not -like working in the building and that this was to be her last night working therq. On the grievo,r's evidence, prior to this conversation he had talked with Ms. Gray only once and that was to point out a dirty ashtray. Given these considerations it seems unlikely that Ms. Gray would have advised the.grievor as to her views about working in the building and her future plans. Even more'~telling, we believe,.is the evidence relating to.the discussion between the security guard and Mrs. Wilson. It will,be recalled. that the grievor testified that he had not overheard the discussion. Her also testified - 16 - that when he met Ms. Gray in the family court area he did not tell her why he had been looking for the security guard and that after leaving with Mrs. Wilson he did not subsequently return to talk to Ms. Gray. Given this evidence, we are left with the questi.on of how it was that Ms. Gray came to learn about Mrs. Wilson’s son arriving with supplies and the later conversation between Mrs. Wilson and the security guard. There is no suggestion in the evidence’that Ms. Gray learned about what occurred from either Mrs. Wilson or the security guard. Ms. Gray, however( testified that after the grievoi had gone off with Mrs. Wilson, he returned and advised her that.he had overheard Mrs. Wilson telling the security guard that she was upset with him because he had refused to lether son into the building with supplies. In the circumstances, MS. Gray’s version of what occurred, namely that she learned of the incident involving mrs. Wilson’s ;on as well as the discussion between Mrs. Wilson and the security guard from the~.yrievor, is more plausible than the griever’s claim that .I he did not tali.to Ws. Grayabout these matters. Given that the grievor apparently sought to mislead us with respect to this point, we are led to favour Ms. Gray’s evidence wherever it conflicts with that given by the g.rievor. I We have found in favour of MS. Gray's versibn as to what occurred. We do not doubt that Ms. Gray was bothered by the griever's frequent visits and concerned about his intentions. We di sagree, however, with the Ministry's use of the term "harassment" to describe what occurred. While the grievor sought out Ms. Gray's.company, he did not make any advances towards her or make any statements.~of an improper nature. At no time did Ms. Gray expressly tell the yr,ievor she did not want to talk to him, that he should leave, or that’he’ should not visit her again. She did make some hints along this line, but given the’particular circumstancds of this case, we believe that the grievor likely did not understand what she was getting at. This is particularly so given that on several,occasions Ms. Gray willingly en'tered into conversations. with the grievor. The griever's actions in demonstrating to Ms. Gray the proper -lights to turn off in the registry office apparently had no sinister motivation. It will be recalled that on Ms. Gray's evidence the grievor actually changed some of the lights. The employer raises no claim that the grievor left the lighting in other than the way it was supposed to be. Although the grievor did not engage in any harassment of, or improper conduct towards, Ms. Gray, he did spend some period of time away from his work chores in parts - 18 - of the registry building that he had been instructed to stay away from. For this he was deserving of some discipline. Given this conclusion, and the union’s acknowledgment that if the grievor had acted improperly a one-day suspension would have been appropriate, we are led to uphold his suspension. The grievance is, accordingly, hereby dismissed~. DATED at Mississauga, this 29th day of August, 1988. J. McManus - Member .