GSB#0224/01, 1474/01
UNION# 01A503, 01A504, 01A505, 01A506,
01A507, 01A508, 02B027, 02B028, 02B029
IN THE MATTER OF AN ARBITRATION
Under
THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT
Before
THE GRIEVANCE SETTLEMENT BOARD
BETWEEN
Ontario Public Service Employees’ Union
(Group Grievance, Sammy et al)
Grievor
-and-
The Crown in Right of Ontario
(Ministry of Correctional Services)
Employer
BEFORE Daniel A. Harris Vice-Chair
FOR THE UNION Ed Holmes
Counsel
Ryder Wright Blair & Doyle
Barristers & Solicitors
FOR THE GRIEVOR Nelson Roland (representing Mr. Dewar)
Barrister & Solicitor
FOR THE EMPLOYER Ajamu Boardi
Staff Relations Officer
Ministry of Correctional Services
HEARING June 12, 2002.
Decision
The Proceedings
This decision deals with a request by the Union that the discipline levied against the grievors be declared void because of the Employer’s delay in imposing it. It is brought on behalf of Dale Sammy, Donald Cuthbert, Alton McFarlane, Carlton Johnson, Tim Collins, Robert Mondesir and Mark Dewar. The grievors are all corrections officers.
The Facts
The grievors were disciplined for an incident alleged to have occurred on February 2, 2001 in which an inmate was said to have been assaulted. The grievors were suspended with pay and an internal investigator was appointed to report on the matter. On February 27, 2001 the first six grievors, all of whom are unclassified, had their suspensions changed to suspensions without pay. Mr. Dewar was suspended with pay. By May 23, 2001, the investigator’s interviews had concluded. On June 26th, 2001 Mr. Dewar was returned to work. On July 24, 2001 the investigator provided his final report to the Employer.
On September 5 and 18, 2001 a hearing took place before the Grievance Settlement Board in which the Union argued that the balance of harm in these matters favoured the grievors to such an extent that they ought to have their pay reinstated pending the Employer’s decisions resulting from the investigator’s report. By a decision dated October 9, 2001 it was ordered that the grievors on suspension without pay have their pay restored retroactively to August 1, 2001.
Allegation meetings were held by the Employer with the grievors during the week of September 20-26th, 2001. On November 5, 2001 the Employer determined that four of the unclassified grievor’s be discharged from their employment, two of the unclassified grievors received suspensions without pay and Mr. Dewar, the classified employee, was also discharged.
Reasons for Decision
The Union submitted that the Employer’s right to suspend an employee pending investigation flows from the Public Service Act R.S.O. 1990, c. P.47. Accordingly, once the investigation is complete, that right ceases. It was said that the investigation into these matters was completed with the delivery of the investigator’s report on July 24, 2001. Although the collective agreement here does not prescribe deadlines for the imposition of discipline, the P.S.A. was said to do so.
The Union’s central submission was to the effect that the Employer is required, as a matter of arbitral principle, expeditiously to sanction an employee for behaviour considered inappropriate. Accordingly, even if there is no demonstrated prejudice to the individual the discipline will be struck down as void where there is an unreasonable delay in levying the discipline. I disagree. In my view, that is much too bald a statement of the effect of the principle. The Union has failed to appreciate that prejudice may be demonstrated by evidence of the fact or by inference due to the inherent prejudice.
Some of the cases relied upon by the Union rest upon a conclusion that there was inherent prejudice to the grievor occasioned by the delay in imposing discipline. By way of example, in Manitoba Pool Elevators Brandon Stockyards (infra), Arbitrator Peltz said at page 287:
I accept that reasonably expeditious discipline is a matter of general arbitral principle. In the present case, despite the absence of evidence from the grievor as to actual prejudice, I would, if necessary, be prepared to find prejudice, under the over-all circumstances of this case. Yard receiving workers at the Brandon pool must deal with numerous customers and numerous deliveries on a daily basis. To confront an employee with the specifics of a single, brief encounter with a customer eight and a half months after the fact is inherently unfair and prejudicial.
In Manitoba Pool, it was the demonstrable, inherent prejudice that moved Arbitrator Peltz.
Other cases, cited by the Union, were examples of situations where an employer was reasonably seen to have condoned the behaviour which it later sanctioned. Such a situation is also prejudicial since an employee may be lulled into a mistaken belief that the transgression has been forgiven.
One factual aspect that differentiates the jurisprudence is whether or not the employee knew of the alleged misbehaviour. Generally speaking, where an employee does not know that the employer takes issue with how they have discharged their duties there is inherent prejudice occasioned by delay in levying discipline. The more the complaint relates to routine duties, the greater is the prejudice, and the general arbitral principle that opposes delay will act in the employee’s favour. Where the transgression is with respect to actions that are not routine, they stand out and the employee must be taken to know that the employer will take issue with them. As Arbitration Herlich said in AFG Industries Ltd. Cited in National Grocers (infra):
… I have considered the nature of the allegations from a very specific perspective. If we ask someone: “were you hit by the truck four months ago?” or “did you rob the bank four months ago?”, we do not anticipate a response such as: “I might have, I don’t recall – why didn’t you ask me sooner?” There are some events one simply does not forget.
That is to say, if the events at issue are extraordinary rather than routine, it becomes increasingly difficult to infer inherent prejudice as a result of delay. The general principle of reasonably expeditious discipline will then be balanced with the circumstances of the case by looking to actual rather than inherent prejudice. There is nothing inherently prejudicial if the events are of such a nature that one simply does not forget them.
Another category of cases is where the grievor and employer know of the unacceptable behaviour yet the employer does nothing about it or otherwise leads the employee to the conclusion that the behaviour will be tolerated or forgiven. In those cases the employer's condonation of the behaviour is itself unreasonable delay if discipline is subsequently imposed. The condonation may be proven by evidence of the fact, or it may be inferred as inherent in the circumstances.
I turn now to consider where on the continuum these events fall. In the circumstances before the Board in these matters, the grievors knew promptly that the Employer objected to their purported handling of the incident of February 2, 2001. All that the Board knows of the incident at this juncture is that it involves an allegation that an inmate was assaulted. An allegation that an inmate has been assaulted is prima facie in that category of extraordinary events referred to by Arbitrator Herlich. In any event, these grievors were immediately put on notice by way of their suspensions. This is not a case where prejudice might be inferred from the delay in imposing formal discipline.
In circumstances such as these, there can also be no serious consideration given to the proposition that the Employer may have condoned the event. We are dealing with allegations that corrections officers assaulted an inmate. It was submitted on behalf of Mr. Dewar that his return to work on June 26, 2001 leads to an inference that the Employer condoned the events. Absent clear evidence that the Employer meant to exonerate Mr. Dewar by returning him to the workforce, the Board can not draw such an inference. Such an event could not be taken as inherently condoned.
The effect of delay in cases such as these before the Board has been succinctly set out by Vice-chair Dissanayake in Re Donnenberg, 414/89 and Re Bonacci 1923/96. In Bonacci the Board said as follows at page 11:
The test to be applied, in the Board’s view, is whether in the particular circumstances the grievor was reasonably led to conclude that her conduct had been forgiven or condoned or that the employer had somehow dropped the matter. That is what would make it unfair and inequitable for the employee to later find that he or she was subject to discipline.
There is no evidence of such, and this is not a case where it might be inferred.
Finally, I turn to the effect of the Public Service Act. Section 22 (1) of the Act reads as follows:
A deputy minister may, pending an investigation, suspend from employment any public servant in his or her ministry for such period as the regulations prescribe, and during any such period of suspension may withhold the salary of the public servant
The "investigation" referred to is the investigation undertaken by the Employer. Part of that investigation was the appointment of an internal investigator to gather the evidence. However, it is the Employer's responsibility to complete the investigation by analyzing the evidence and affording the grievors both the right to know the allegations against them and an opportunity to respond. The investigation continued until the Employer reached its conclusions. The Board has already determined that the length of time the Employer took shifted the balance of harm to the grievors, and it fashioned an appropriate interim remedy.
The Decision
The Union’s request that the discipline be declared void is denied.
DATED AT TORONTO this 25th day of June 2002.
Appendix A
The Union relied upon the following authorities:
Sammy et al, GSB 0224/01 (Harris, October 9, 2001)
Public Service Act, R.S.O. 1990, c. p.47
Canadian Labour Arbitrator Brown and Beatty 7:2100
Manitoba Pool Elevators Brandon Stockyards and UFCW (1993), 1993 CanLII 16667 (MB LA), 35 L.A.C. (4th) 276
University of Ottawa and I.U.O.E. Local 796-B (1994), 42 L.A.C. (4th ) 300
O.C.A.W., Local 9-672 and DOW Chemical of Canada (1966), 1966 CanLII 834 (ON LA), 18 L.A.C. 50
Ratzlaff v. British Columbia (Medical Services Commission), [1996] B.C.J.N. No. 36
Dannenburg, GSB 414/89 (Dissanayake)
The Employer relied upon the following authorities:
Dannenburg, GSB 414/89 (Dissanayake)
Bonacci GSB 1923/96 (Dissanayake)
Hardy, PSGB P/0034/93 (Leighton)
Metro Toronto (Municipality) and C.U.P.E., Loc. 79 (Dalton) (1999), L.A.C. (4th) 1
British Columbia and B.C.G.S.E.U. (1995), 1995 CanLII 18367 (BC LA), 47 L.A.C. (4th) 238
Saint Mary’s Hospital (New Westminster) and H.E.U. (O’Hern) (1997), 1997 CanLII 25064 (BC LA), 67 L.A.C. (4th) 84
National Grocers Co. Ltd. And Teamsters Union, Local 419 (1983), 1983 CanLII 4871 (ON LA), 11 L.A.C. (3rd) 193
Nova Scotia and N.S.G.E.U. (Coates) (1999), 1999 CanLII 35825 (NS LA), 83 L.A.C. (4th) 218
Canadian Labour Arbitration, Brown and Beatty 2:3210