GSB #1146/96
OPSEU #96F731
IN THE MATTER OF AN ARBITRATION
Under
THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT
Before
THE GRIEVANCE SETTLEMENT BOARD
BETWEEN
Ontario Public Service Employees Union
(Greene)
Grievor
- and -
The Crown in Right of Ontario
(Ministry of Transportation)
Employer
BEFORE Joseph D. Carrier Vice Chair
FOR THE Peggy Smith, Counsel
GRIEVOR Eliot, Smith
Barristers and Solicitors
FOR THE Kelly Burke
EMPLOYER Legal Services Branch
Management Board Secretariat
HEARING August 6 1999, December 14,15,16, 1999, May 8, 9, 2000,
June 28, 29, 2000 and August 21, 2000.
A W A R D
Captain Mark Greene, alleges that the twenty (20) days suspension which he received with respect to an incident which occurred on May 23, 1996 was unjust and/or excessive.
Briefly, the Employer, the Ministry of Transport, operates a ferry service between the City of Kingston on the mainland and Wolfe Island. Captain Greene is one of several Masters who skippered the Wolfe Island Ferry on a rotational basis back and forth between Kingston and the Island. On May 23, 1996 at approximately 7:30 a.m., the boat left its moorings at the Marysville Dock on the Island while it was in the process of loading passengers and vehicles, Captain Greene was the Master in charge of the vessel at the time the incident occurred. Without going into detail, it would be an understatement to say it was fortuitous that no person or property was injured at the time. As might be imagined, there were numerous complaints from local residents and commuters and the matter became a cause celebre in the local media.
Following the incident, an investigation took place which included reports from the crew of the vessel as well as verbal reports and discussions from witnesses who had personally observed the incident. The crew was comprised of Captain Greene himself, his First Mate, Bradley Eves, the Operating Engineer, Mr. Kevin O’Shea, who incidentally was a union steward, and two Deckhands. In the result, two persons were disciplined, that is, Captain Greene himself and his First Mate Mr. Eves. As indicated earlier, the Captain received a twenty (20) day suspension which is the subject of this grievance. The Mate’s discipline was also grieved. However, that grievance was resolved by the parties with restrictions concerning the release of information as to the terms of settlement.
Without reproducing here the entire letter of discipline, the Employer took the position that the discipline of twenty (20) days was warranted because amongst other things, the Captain had breached a number of standing orders as well as at least one marine directive relating to the operation of the “Island Ferry”. His alleged culpable conduct included the following:
Leaving his command, that is, the wheelhouse without ensuring his replacement by the First Mate;
Failing to ensure that the vessel was secured with mooring lines;
Failing to promptly and adequately report the incident to his superiors;
It was the Grievor’s position that he believed he had taken reasonable steps to ensure his replacement by the First Mate at the time he left the wheelhouse. As to the mooring lines, their usage was more directly the responsibility of the Mate who oversaw the Deckhands. Additionally, the Captain, from his vantage point in the wheelhouse, was unable to confirm visually that all mooring lines were secure. In any event, the mooring lines, if secured, would have been inadequate to prohibit the incident. As to the reporting of the incident, Captain Greene did report the information to his superiors as and when he was able to confirm various particulars. Finally, the Union takes the position on behalf of Captain Greene that his errors in judgment that day, if so characterized, were largely the responsibility of the Employer. It was Captain Greene’s position that in the timeframe leading up to the incident he had been required to work an intolerable schedule. That work schedule created a situation in which the Captain was suffering from the effects of “fatigue” which impacted on his judgment. Additionally and more importantly, it was Captain Greene’s assertion that the strain and fatigue he was under was linked to the diarrhea which he purportedly suffered on May 23rd and which took him out of the wheelhouse into the washroom at the critical time. In the circumstances, no discipline was warranted.
THE INCIDENT AND THE BACKGROUND
I do not propose to outline the evidence received from each and every witness in this case, rather, I will identify the facts as I have found them while on occasion rationalizing inconsistent or disputed facts by reference to testimony from the various witnesses. Before doing so, I feel obliged to comment upon an objection raised several times by Union counsel respecting the competence of the First Mate, Mr. Bradley Eves, to testify on behalf of the Employer. Additionally, counsel took issue with the reliability of Mr. Eves testimony in as much as his grievance had been resolved amicably by the parties prior to these proceedings.
There was no authority or precedent cited for the Union’s position that Mr. Eves testimony should not have been received, and, in my ruling at the hearing to allow Mr. Eves testimony; I, in turn, made no reference to any authority. However, it was my view that there was no precedent or reasonable basis to disallow the testimony of Mr. Eves. There was no privilege attaching to him or the evidence he might give simply because he had resolved his grievance. That the actions for which he was disciplined arose from the same circumstances giving rise to the Grievor’s discipline did not disqualify him as a witness. While it might have been argued that his testimony might have been less reliable since his interest might have been in conflict with that of the Grievor, that was not an impediment to his testimony but simply signaled that care should be taken in relying upon that testimony. On the other hand, there was no allegation that Mr. Eves had been induced to resolve his grievance in exchange for favourable testimony in this case. Accordingly, Mr. Eves had nothing to gain in testifying to events or circumstances which might not be favourable to the Grievor. Finally, that Mr. Eves had settled his grievance was no impediment to his testifying to the event and circumstances leading up to his and the Grievor’s discipline. Rather, if there was any evidence which he could not give, it related to the settlement discussions concerning his grievance and, indeed, the terms and circumstances concerning the settlement itself. However, there was no attempt made to introduce any evidence concerning those settlement discussions or the terms of that settlement. Therefore, it was my view that Mr. Eves testimony was properly received in evidence. The only issue to be determined, as with any testimony was the reliability of the witness in all of the circumstances.
At or about 7:20-7:30 a.m. on May 23, 1996, the Wolfe Island Ferry was in the process of loading passengers on Wolfe Island to begin its third round trip of the day to Kingston, the first having begun at or about 5:30 a.m. that morning. Captain Greene was in command and in the wheelhouse when loading began. Typically, that is the Captain’s station at such time while the Mate participates in and directs securing of the vessel and the loading and unloading of passengers with, of course, the assistance of the two Deckhands. On that occasion, however, the mooring lines had not been secured by the Mate or the Deck Hands. Although the absence of mooring lines might strike the layman as absurd, it is important to understand that their use is not fundamental to maintaining the Ferry at the dock while boarding takes place. Rather, it is the constant thrust of the propellers which, when set properly, maintain the position of the ferry pressed against the dock. The employment of mooring lines as an additional security measure was not mandated or implemented until some time in 1994 following a fatal incident in Western Canada where a ferry had come away from its dock. Furthermore, the mooring lines alone would not hold the ferry at dock with enough stability to allow boarding. Indeed, in turbulent water, it is doubtful that the lines would hold at all; the evidence suggested that under sudden stress they would probably snap. On the other hand, the propeller thrust will alone maintain the boat stable at dock and is the primary measure that holds the ferry in place. Captain Green testified that, at the time of the incident, he was unaware that the mooring lines had not been secured and assumed that they had been. For his part, he had set the vessel’s emergency steering system to hold the ferry in place at its moor. After unloading had concluded and just prior to the commencement of loading, according to Captain Greene, he then hollered for his First Mate to replace him and left the wheelhouse to adjourn to the captain’s washroom on the second deck ostensibly to relieve himself in an emergency case of diarrhea.
While he was absent a number of vehicles had been loaded including two school buses. Shortly after the second bus was on board, the vessel pulled away from the dock, the ramp fell away and passengers and vehicles about to board were left stranded dock side; fortunately, none were directly on the ramp or boarding at the time of the incident. In any event, the bow of the vessel which had been nosed into the dock began to pull backwards while the stern swung back and to the right, pivoting to a certain extent around the bow.
Mr. Eves, the First Mate, had been engaged in loading the vessel. He testified that he immediately stopped traffic, and, when he was unable to visually observe anyone in the wheelhouse, went to the crews’ quarters where he attempted to contact the Captain by phone. When that was unsuccessful he ran to the wheelhouse, found it empty and took control of the vessel. To do so he had to disengage the emergency steering and rev the stern engines clockwise in order to stop the vessel’s counter-clockwise spin. While Mr. Eves was in the process of re-docking the boat, Captain Greene returned to the wheelhouse, took control and finished the process. The boarding process was then completed and the ferry headed to Kingston.
En route to Kingston, the Captain and his Engineer, Mr. Kevin O’Shea were able to determine that the drift of the vessel from the dock had been caused by a problem with the emergency steering. Although they were as yet unable to isolate the cause, the Captain reported the emergency steering problem to Senior Captain Bennett during that return voyage. Later investigation, while the ship was dockside, proved that the problem had resulted from a leak in the hydraulic system in the emergency steering. The day before the incident, Engineer O’Shea had been attempting to repair another problem in the ship’s engine room. In the course of his repairs he had adjusted the hydraulic systems affecting the emergency steering. When he had completed his work and subsequently reversed the process, he inadvertently failed to completely close one of the hydraulic valves. Subsequently, the seepage of hydraulic fluid through that valve allowed the stern steering to rotate while set on emergency steering at a rate of approximately three hundred and sixty degrees in four and one-half minutes. Accordingly, although the Captain had set the emergency steering so as to keep the vessel driving forward towards the dock and sideways to its left against the dolphins, the subsequent rotation of the steering had caused the vessel to leave the dock as described earlier.
This brings me to a consideration of the more contentious evidence much of which relates more specifically to the Company’s allegations with respect to the conduct or misconduct of Captain Greene. With respect to those elements of the case, the following are my findings together with what I hope prove to be relatively brief reasons with some elaboration where credibility is an issue:
Captain Greene acknowledged familiarity with all of the standing orders and marine directives.
It is my view that those standing orders and marine directives which the Captain was alleged to have breached were not unreasonable;
(a) Continual command of the vessel from the bridge by a competent person throughout the boarding procedure requires no comment respecting its legitimacy.
(b) There were conflicting directives with respect to the use of the emergency steering system as opposed to the ship’s aqua pilot system. However, that conflict is irrelevant since, on this occasion, the Captain had chosen to use the emergency steering system which was the more recently mandated procedure. Therefore, while the testimony and evidence indicated that the aqua pilot’s ability to constantly self-correct would probably have minimized, if not eliminated, the risk that the boat would propel itself from the dock, that did not mean the aqua pilot system was fool proof in all circumstances or preferable to the emergency steering system. Rather, the evidence indicated only that, on this occasion, in hindsight, the aqua pilot would have been a better choice. In any event, the discipline imposed upon Captain Greene was not based in any measure upon his choice of steering systems. Rather, Captain Greene and the Union point to the inadequacy of the emergency steering system and its failure on that day as an exculpatory or mitigating factor in his conduct. Indeed, it is reasonable and I find that the failure of the emergency steering system was a significant, if not, the significant factor which precipitated the movement of the boat from the dock on the day in question. Additionally, that is one of the various factors which merits consideration in assessing the imposition of discipline on the Captain with respect to the incident.
(c) The evidence established that the mooring lines securing the boat at the dock were absent at the time of the incident. The Captain did not deny that he was familiar with the requirement that the mooring lines be fixed while the boat was at the dock. The challenge to the directive which required the mooring lines was based on two factors:
i. That the Captain or Masters were unable to enforce the requirement since they had no disciplinary powers over the crew;
ii. in any event, the implementation of the use of mooring lines was simply a public relations ploy since the lines were incapable of holding the boat at the dock but would snap when placed under any significant degree of stress.
I do not accept the Union’s contention that the Captain’s inability to discipline the crew absolved him from responsibility for the failure to attach the mooring lines. Rather, the Captain had a considerable degree of perceived and moral authority over his crew in his position as Master. Furthermore, if his admonitions to the crew to assure that the mooring lines were affixed were not followed, he could have appealed to his supervisor, that is, the senior ferry captain to enforce the rule with the crew. However, there was no evidence whatsoever that the Captain attempted to ensure that the mooring lines were regularly secured especially at the Wolfe Island docks. Rather, it appeared that the practice was regularly followed at the Kingston dock where the senior ferry captain could observe the procedure; however, when on the Island both the crew and the Captain were cavalier with respect to the directives. Although there was evidence that a Captain’s general inability to discipline had been raised as a concern at Captains’ meetings with respect to the enforcement of standing orders or marine directives such as the affixing of mooring lines, there was no evidence that the Captains had been relieved of responsibility in consequence of those meetings. Rather, it was my view of the evidence that the Captain, as Master, was responsible for the overall operation of the vessel and performance of the crew in a manner consistent with marine requirements. Where, as here, the evidence indicated that he has not in any way attempted to enforce or require compliance with Standing Orders, he bears a considerable degree of responsibility for the consequences where the Orders have not been followed. Further, it is not sufficient for the Captain to say that from his perch in the wheelhouse he was unable to observe whether or not the lines were affixed at the time. He could have briefly moved to a position where the lines, fore and aft could have been observed. Furthermore, the evidence indicated that the lines were often not secured at the Island. The Captain, as Master, ought to have been aware of this regular omission. Accordingly, the Captain’s testimony that he assumed they had been affixed on this occasion was not only doubtful but unacceptable. Finally, subsequent events relating to reporting of the incident by the crew confirmed that the Captain had satisfied himself promptly thereafter that the lines had not been affixed when the boat broke away from the dock. Accordingly, the Captain must bear some responsibility with respect to the failure to attach the mooring lines that day.
In reaching this conclusion with respect to the mooring lines, it was necessary to determine that the evidence of the First Mate, Bradley Eves, was preferable to that of the Captain. Indeed, as indicated earlier, Mr. Eves had no reason to misrepresent the incidents of the day and certainly had no reason to testify that the Captain had instructed or requested him to report the mooring lines were secure when they were not. If anything, it was my perception that the witness, Mr. Eves, did not deliberately attempt to misrepresent events against the Captain’s interest. Rather, he appeared to minimize in some areas the degree of the Captain’s omissions. For instance, it was my view that he underestimated the time which elapsed between the departure of the boat from the dock and his regaining control of it and ultimately the Captain’s return to the bridge. He was reluctant, in my view, to provide a more realistic or greater estimate of the time the Captain was off the bridge since that would have further impugned the Captain’s actions.
With respect to the reasonableness of the requirement that the mooring lines be affixed, I am not satisfied that the mooring lines would not have assisted in holding the ship at the dock that day notwithstanding the slippage in the emergency steering system. The evidence indicated that the boat would or could snap one or more lines when it was powered away from the dock at considerable RPM’s. It was not, however, clear that where the application of stress on the lines was gradual as was the case during the incident that the lines would have necessarily snapped before any problem had become apparent. Rather, in this case, the evidence indicated that the slippage in the steering was very gradual such that there would have been no sudden powering away from the dock. Had the Captain been on the bridge and the lines affixed, he might well have observed the strain on the lines when it first occurred and moved to take corrective measures. His absence from the bridge and the failure to use mooring lines eliminated any such possibilities. Again, the Captain cannot escape responsibility by suggesting that the mooring lines might not have held where it was equally possible that they might have held long enough to have avoided the greater risk which ultimately occurred.
- In addition to the foregoing, it was clear that the Captain left the deck without ensuring his replacement was in attendance let alone confirming that the Mate was aware that he was leaving the wheelhouse. In a best case scenario, the Captain might have believed that his yell to the Mate had been received and understood. However, the Mate was not present in the wheelhouse when the Captain actually left; rather, he was absorbed in the loading and unloading of the boat. Accordingly, he could not have immediately replaced the Captain on the deck. Furthermore, the Captain’s testimony was unclear as to what precisely he had yelled to the Mate and what he had expected the Mate to do in the circumstances. In brief, there were several methods of communication open to the Captain to assure his replacement in the event of an emergency. The Captain did not avail himself of any reasonable method of communicating with the Mate and assuring his replacement before he left the bridge. Again, the Captain was remiss in not assuring himself that the Mate had been properly apprised of the situation and instructed accordingly prior to the Captain’s departure from the wheelhouse.
This conclusion brings into focus one of the primary factors relied upon by the Union and the Grievor in his explanation. Specifically, it was the Grievor’s contention that the work schedule which he had been subjected to in the immediately preceding weeks had resulted in extreme fatigue and a consequent stomach ailment which precipitated his personal emergency that day.
A number of weeks prior to the incident, the schedule for crew members of the ferry had been changed to provide for ten (10) hour shifts. Since the ferry itself began its daily schedule on Wolfe Island at about 5:30 a.m. and finished there as well at about 1:30 a.m. the next morning, crew members had to juggle their lives to be available on the Island to begin their respective shifts. When scheduled to work the day shift, mainland residents such as Captain Greene had to be available on the Island at approximately 5:00 a.m. in the morning. To accomplish this, at the latest they would be obliged to take the last ferry to the Island the previous evening, that is, at about 1:00 a.m. They would then wait on the Island until their shift began some four hours later. Accordingly, although there were technically fourteen hours between the end of one shift and the beginning of the next, a chunk of that time was taken up in transit and on standby pending active duty. This left relatively few hours in the day for the pursuit of personal interests let alone for rest or sleep. Captain Greene precipitated a grievance with respect to the schedule on or about May 16, 1996. That grievance per se has little relevance to the matter at hand except insofar as it demonstrated Captain Greene’s concern about the ten hour schedule. In any event, that grievance was subsequently resolved by the parties while Captain Greene’s personal concerns were more dramatically set out in a letter he wrote on or about May 23rd, 1996. That letter was in response to a critical letter he had received from Senior Ferry Captain Bennett for having failed to call and/or show up for his shift on Friday, May 17th. Although not entirely relevant to the matter before me, there are elements in it which warrant review. The following constitutes the text of that letter:
“Regarding your letter of May 21, 1996, failure to report to work on Friday May 17, 1996, 0530 – 1530 hrs shift.
As you are well aware if I do not report to work on the last ferry departing Kingston at 0100 hrs (4.5 hrs prior to my 10 hr shift) on board the Wolfe Islander III, I have no available means of transportation to get to Wolfe Island for the start of my 10 hr shift at o530 hrs.
Due to this new 10 hr. shift schedule as of April 22, 1996, and my unfortunate extended hours of work this schedule entails, I at times have become physically exhausted.
Falling asleep hours prior to my shift on May 17, 1996, and due to being exhausted I must have shut the alarm clock off and fallen back to sleep.
The financial hardship due to the recent O.P.S.E.U. strike has resulted in my phone services being disconnected. As you are aware all attempts from the shift captain to contact me were unsuccessful when he realized I wasn’t on board the last ferry at 0100 hrs to go to work for 0530 hrs.
However, when I woke, I did advise the Wolfe Islander II that I had slept in, was exhausted, and would not be reporting for my shift, albeit late.
As yourself, Mr. Roger Harrison, Mr. Don Barnes (and others involved) are aware that all previous conversations and meeting concerning this 10 hr. shift schedule focused on the fact that employees residing in Kingston are required to work or be in their workplace 15 hrs. or 16hrs. a day, resulting in minimal hours off each day from their workplace prior to their next scheduled 15 or 16 hr shift.
Since April 22, 1996, each shift that I have worked was a 15 hr. or 16 hr. day. For this Ministry to require myself and my co-workers residing in Kingston to work these hours each shift is unethical, borders physically impossible, involves undue hardship, is clearly unhealthy and produce fatigue arising from minimal hours off each day from their workplace prior to the next scheduled shift.
I refuse to take the approach that there is not a problem with a 10 hr. shift. If all employees could work a 10 hr. shift or a 12 hr. shift and be out of their workplace it would be safe.
What is happening has the potential to be dangerous, unsafe for it’s employees, the traveling public, and surrounding waterways.
I wish to thank you for your concern regarding this matter and as Captain I can assure you that in the future if I become fatigued I will exercise my good judgment and notify the Wolfe Islander III, well in advance.
Thank you.”
Among the questions raised by that letter is whether or not Captain Greene was suffering from “fatigue” as a result of the recently altered work schedule. Did the letter constitute notice that the Captain was medically “fatigued” and, if so did that “fatigue” precipitate a stomach disorder and diarrhea on May 29? Further, did that “fatigue” so cloud the Captain’s judgement that day, that he could not be held responsible for his errors. I sympathize with the Captain’s contention that his work schedule in and around May of 1996 constituted a hardship, and I understand that he was more than unhappy with it. However, there are both factual and legal impediments to accepting those reasons as a basis for absolving him of responsibility with respect to the incident. Factually, aside from Captain Greene’s letter and his own testimony that he viewed the schedule as oppressive, there was no corroborative evidence that he was sleep deprived or that the schedule would necessarily have resulted in sleep deprivation. Furthermore, there was no medical evidence that the Captain was suffering from such a degree of fatigue that his judgment in commanding the boat would have been impaired. Indeed, while we do not doubt that such a connection might well develop, there was no evidence introduced at the hearing to establish the stage at which, if any, judgment might be impaired as a result of fatigue and to what extent. Absent such evidence as well as a direct causal connection between the work schedule and the Captain’s conduct, the excuse of fatigue induced by the work schedule imposed on Captain Greene has not be substantiated. To rely upon a witness’ self-diagnosis to support the existence of an undefined medical condition without appropriate medical opinion would set an ill advised and inappropriate precedent. Similarily the absence of medical evidence to support the proposition or conclusion that “fatigue” causes or would likely have caused the Captain’s alleged bout of diarrhea is fatal to that contention. To put it simply, the Captain cannot, as he has attempted to do, point to the hardships induced by his work schedule as causative both of his errors in judgment and his diarrhea on the day of the incident. His self diagnosis and rationalization have not been substantiated by the evidence introduced. [See for instance Re Regional Municipality of Hamilton-Wentworth and Canadian Union of Public Employees, Local 167 (1996) 1996 CanLII 20257 (ON LA), 52 L.A.C. (4th) 141 (Sargeant) and Re Pasteur Merieux Connaught Canada and C.E.P., Loc. 1701 (1998) 1998 CanLII 19087 (ON LA), 75 L.A.C. (4th) 235 (Knopf)]
In addition to the difficulty in drawing a causal connection between the Grievor’s work schedule and the incident, as alluded to earlier, there was also some doubt concerning the existence of the Grievor’s diarrhea if not his fatigue. To put it bluntly, the Grievor’s assertion that he was suffering from diarrhea on the morning of the incident was not substantiated by any other evidence. On the contrary, not only was there no medical evidence whatsoever to substantiate a stomach disorder, the Captain’s conduct before and after his visit to the washroom on the day of the incident suggests that he was suffering from no such ailment. There was no indication in the testimony of Bradley Eves or the Captain himself for that matter that he had displayed any symptoms of discomfort from the beginning of his shift on the day of the incident up to and including the docking of the boat on the Island immediately preceding the incident itself. Furthermore, the Captain completed the balance of his shift that day without any complaints regarding his health. While he did, later in the shift, request that Senior Captain Bennett find him a replacement, his purpose was to leave early not because of his own health but to attend to a personal matter relating to his daughter. In the circumstances, I find the Captain’s self-serving testimony concerning a stomach disorder on the morning of the incident unreliable.
In a similar vein, although the Mate, Bradley Eves, was primarily responsible for the failure to secure the mooring lines, I am satisfied that the Captain was aware that they had not been affixed that day at the Wolfe Island Dock. Whether he knew this was so as a matter of practice which he had routinely condoned or whether he realized immediately following the incident that they were not secured, I am satisfied that he was aware that they were missing that day and attempted, at least initially, to conceal that fact from his superiors. As previously, I must prefer the testimony of Bradley Eves to that of the Captain when he asserted that the Captain had suggested that he and other members of the crew complete their reports indicating that the mooring lines had been secured. That testimony is consistent with a request made by the Captain following the incident for fresh rope ostensibly to replace those mooring lines which had been snapped on Wolfe Island. It is my view that the Captain was deeply concerned not only about the potential hazard to the public which the incident represented and concerning which he testified but also with respect to the possible ramifications for himself and his job. There were a considerable number of elements which indicate that the Captain had originally thought he might minimize or at least marginalize his responsibility for the incident. In addition to that already referred to, I am satisfied that when Captain Greene first contacted Senior Captain Bennett by telephone following the incident, he complained about the failure of the emergency steering system but made no mention of the far more important fact that the ferry had actually left the dock in the middle of the boarding process. That could not be considered a simple oversight but a deliberate attempt to, at least, temporarily conceal the event and to misdirect attention to the mechanical failure before the existence of the incident itself became apparent to his superiors. Indeed, it must have been quite a shock to Captain Bennett to learn of the incident from his superior rather than from Captain Greene with whom he had spoken some short time earlier. While it is clear that Captain Greene could not have intended to conceal the matter completely, I am of the view that he hoped to gain some advantage by delaying the information and focusing attention on failures other than his own.
In all of the circumstances, it is my finding that the Captain’s conduct was culpable with respect to the various elements identified by the Employer. Unfortunately, the Grievor chose to focus on the failures of the Employer rather than his own in dealing with the incident. While there is no doubt that the schedule imposed upon crew members resident on the mainland constituted a hardship, I was not satisfied that Captain Greene was so fatigued that he could not have exercised some measure of reasonable judgment when dealing with his personal situation that morning. Indeed, he could have anticipated his personal needs and advised the Mate before boarding began. Alternatively, he could have employed any number of alternative measures of contacting the Mate and ensuring that safety measures were in place before departing the bridge. He chose none of those alternatives. Even on a best case scenario, the Captain abandoned the bridge without assuring himself that the Mate was aware of his emergency and without satisfying himself that the mooring lines had been properly secured. Rather, he abandoned his post without complying with any of the appropriate safety measures. While fatigue and a stomach disorder might constitute an explanation for an emergency departure, neither of those constituted a reasonable excuse for his omissions that day and the risks to which he put his customers, his crew and his ship. Accordingly, it is my view that the Captain’s conduct merits significant discipline. This brings me to a consideration of the appropriateness of the penalty imposed upon Captain Greene.
Given the stature of a ferry captain and the degree of responsibility they bear, a twenty (20) day suspension cannot be considered minor discipline. Furthermore, while the absence of disciplinary measures against the crew, aside from the Mate, as well as the Engineer, Mr. O’Shea, might invite some degree of mitigation, the Captain must nonetheless bear the brunt of the responsibility. The Mate was primarily responsible for the deckhands failure to secure the lines; he received appropriate punishment. The Engineer’s error was inadvertent; furthermore, he acknowledged his responsibility when it became apparent as to what had transpired with respect to the emergency steering system. On the other hand, the Captain not only attempted to initially conceal some of the elements involved in the incident but also failed to recognize that he bore considerable responsibility for what had transpired. He chose instead to seek to affix the blame upon the Employer which had imposed upon him what he considered an intolerable work schedule. While he might have been justified in his views with respect to the schedule, as I have already determined, the repercussions of that schedule were not such as to absolve the Grievor from responsibility. On the contrary, he must bear the lion’s share of responsibility for putting at risk his crew, the ferry and its customers. In all of the circumstances, the penalty imposed upon the Grievor is within the realm of reasonable responses to his conduct and his responsibility in the scenario. Had Captain Greene been frank with the Employer about his omissions and accepted a reasonable degree of responsibility for what had transpired, the penalty imposed might have been reasonably adjusted if not by the Employer by this Arbitrator. However, the Grievor here was so caught up in his views that the Employer had been unfair to him that he failed to recognize his own failings. In all the circumstances, I am not persuaded that the penalty should be altered.
The grievance is therefore dismissed.
Dated at Toronto, this 27th day of October, 2000.