GSB# 2000-1286, 2000-1317, 2000-1382

UNION# 00D460, 00B415, 01B002

IN THE MATTER OF AN ARBITRATION

Under

THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT

Before

THE GRIEVANCE SETTLEMENT BOARD

BETWEEN

Ontario Public Service Employees Union (McGann)

Grievor

• and -

The Crown in Right of Ontario (Ministry of the Attorney General)

Employer

BEFORE

Dan Harris

Vice-Chair

FOR THE UNION

George Richards Grievance Officer Ontario Public Service Employees Union

FOR THE EMPLOYER

Len Hatzis Counsel Management Board Secretariat

HEARING

July 22, 2003.

Decision

This is another decision in the disposition of a backlog of grievances filed by Dag McGann, a court services employee with the Ministry of the Attorney General. Seventeen grievances have been dealt with either by settlement or hearing. In a consent order dated July 8, 2002, hereafter McGann Number 2, the parties agreed to a process for dealing with the then remaining outstanding grievances. Following an exchange of correspondence, the matters reconvened on July 22, 2003 to deal with grievances number 36, 38 and 39.

Given the agreed upon process, this decision is of limited precedential value by virtue of the fact that evidence and argument were abbreviated. Paragraph 11 of McGann Number 2 reads as follows:

11. The arbitrator will provide brief written reasons, it being understood that the reasons will have precedential value to guide the workplace in similar future circumstances, but its value my be limited by the nature of the process being employed.

The narrative relating to the first part of grievance number 36 runs from Monday, November 6, 2000 through Thursday November 9, 2000. On November 6, the grievor reported to work with an injured ankle. He was wearing an “air cast.” He did not submit any form of medical note and was not asked for one. He was assigned to a family law trial, but advised his supervisor, Mr. Ventura, that he would have trouble sitting for the prolonged periods of a trial. He believed he would be capable of working on pre-trial conferences because he would be able to move around, and he asked for that assignment. Mr. Ventura said there were pre-trial opportunities that day, but they were already staffed and it would have been a hardship to shuffle staff already in place. When the grievor was not re-assigned to pre-trials, he said he could not work, received reporting pay of two hours and went home.

On November 7, 2000 the grievor reported for work, turned down an offer of a four-hour work assignment, took two hours reporting pay and went home. Later that day, Mr. Ventura called the grievor to tell him there was no assignment available for November 8 or 9, 2000 that was consisted with the grievor’s self-certified work restrictions.

In my view, the employer accepted Mr. McGann’s medical work restriction but did not make adequate attempts on November 6 to accommodate him. He should be compensated for his losses for that day.

On November 7, Mr. McGann was offered a reasonable work assignment, which he turned down. Accordingly, he is not entitled to any further compensation for that day.

I accept Mr. Ventura’s evidence that there were no work assignments on November 8^th or 9^th that fit Mr. McGann’s restrictions. Accordingly, he is not entitled to any compensation for November 8 or 9, 2000 on that basis. However, on November 9, 2000 Mr. McGann attended a staff meeting at 8:30 am. There is no evidence he was not paid for attending that meeting. He then attended a disciplinary meeting at 9:30. There were ongoing issues of discipline during that work week. Those disciplinary issues form the basis of the remaining issues of grievance 36 and grievances 38 and 39.

The disciplinary issues arose as the result of Mr. Ventura’s concerns that the grievor was not signing out correctly and had refused to pick up certain materials for delivery to court. The signing out issue arose because the grievor believed he was entitle to a full day’s pay whenever he was scheduled, irrespective of the time actually worked. He persistently signed his time sheets showing a full day worked even though the employer knew of his position and had told him numerous times to sign for his actual hours worked. That and other issues were resolved in OPSEU (McGann) and Ministry of the Attorney General (GSB January 18, 2001), hereafter McGann Number 1, after twelve days of hearing.

To resolve the matter of Mr. McGann’s refusal to follow Mr. Vemtura’s orders, Mr. McGann was told to meet with Mr. Ventura’s supervisor, Mr. MacLean. Briefly put, the grievor says he was physically afraid to meet with Mr. MacLean. Refusals to meet with Mr. MacLean were ongoing during the period in which McGann Number 1 was heard. Indeed on May 30, 2000, being one of the hearing days in that case, I suggested that Mr. McGann meet with Mr. MacLean regarding a different issue, which he did. There can be no question that Mr. McGann knew of his obligation to meet with Mr. MacLean to receive supervisory direction.

Nonetheless, in relation to the instant matters, he repeatedly refused to meet Mr. MacLean alone, or without the benefit of a tape recorder. With each refusal he was progressively disciplined until his continued employment was at stake had he not finally agreed to meet on December 12, 2000. The grievor received the following discipline:

October 20, 2000 - letter of counsel

November 6, 2000 - letter of reprimand

November 9, 2000 - 3 day suspension

November 20, 2000 - 5 day suspension

November 21, 2000 - 15 day suspension

The union conceded that there was no contractual foundation for the grievor’s claim to union representation or tape recorders at a supervision meeting. In my view, the employer had the right to meet alone with the grievor in the circumstances and the grievor was obliged to attend, without his tape recorder. His successive refusals to attend were insubordinate and properly resulted in the progressive discipline set out above. Regrettably, the corrective effect of progressive discipline took some time to settle upon the grievor. Ultimately it did, and there is no reason to interfere with that progression. Indeed, it would be counter productive to do so.

Finally, a factual dispute arose in the evidence between Mr. MacLean and Mr. McGann with respect to what transpired at one of the meetings. To the extent necessary, that dispute is hereby resolved in Mr. MacLean’s favour. In either event I find that Mr. McGann simply refused to meet as part of a battle of wills. The grievor knew that he was obliged to “work now and grieve later”. He specifically knew that he was obliged to meet with representatives of the employer for purposes of supervison. He would not, and must accept the consequences of his actions. The grievances as they relate to discipline are dismissed.

Dated at Toronto this 17^th day of February, 2004