GSB# 2003-3597, 2003-3600, 2003-3603, 2003-3604
UNION# 2004-0135-0001, 2004-0135-0002, 2004-0135-0005, 2004-0135-0006
IN THE MATTER OF AN ARBITRATION
Under
THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT
Before
THE GRIEVANCE SETTLEMENT BOARD
BETWEEN
Ontario Public Service Employees Union (Beltrano et al.)
Union
- and -
The Crown in Right of Ontario (Ministry of Community Safety and Correctional Services)
Employer
BEFORE
Ken Petryshen
Vice-Chair
FOR THE UNION
Ed Holmes Ryder Wright Blair & Holmes LLP Barristers and Solicitors
FOR THE EMPLOYER
Suneel Bahal Counsel Ministry of Government Services
HEARING
May 3, 2006.
Decision
In grievances dated January 27, 2004, Mr. K. Beltrano, Mr. J. Noseworthy, Mr. D. Orton and Mr. D. Fredericks claim that they were discharged without just cause. The grievors are Correctional Officers who had been employed at the Windsor Jail. Although the Employer relies on a number of grounds to support the discharge of each grievor, the primary ground is that they used force on an inmate that was unjustified and excessive. The grievors deny the Employer’s allegations concerning the use of force. The grievances were consolidated and are being heard together.
On May 3, 2006, at the conclusion of the Employer’s case, which required 26 days of hearing in Windsor, the Union made what it characterized as a motion for non-suit in connection with the grievance filed by Mr. Fredericks. Counsel for the Union argued that the Employer did not call any evidence that could support the discharge of Mr. Fredericks and requested that I direct the Employer to reinstate Mr. Fredericks forthwith. If this motion succeeds, the parties agreed that I should refer any remedial issues back to them. They also agreed that the matter would come back to me if they were unable to settle any of the remedial issues connected with Mr. Frederick’s reinstatement. Consistent with the practice at the Grievance Settlement Board, counsel for the Employer advised that the Employer would not require the Union to make an election as to whether it would call evidence as a condition of proceeding with the motion.
In its discharge letter of January 27, 2004, the Employer claims that Mr. Fredericks engaged in the following conduct:
That on, Tuesday, March 11, 2003, you used force that was unjustified while escorting inmate Horan down the stairs to segregation by pulling and pushing him and this is a breach of #1) Ministry Policy ADI 04-20-01, Security, Use of Force, Page 1; #2) the Windsor Jail Standing Orders, Section 3, Control/Security and Operations, Page (52) and #3) ADI 02-13-01, Conduct and Discipline, Page (2), (L).
That on, Tuesday March 22, 2003, you used force that was unjustified and excessive by striking inmate Horan multiple times while he was restrained on the first floor and this is a breach of #1) Ministry Policy ADI-02-13-02, Staff Conduct and Discipline, Page (2); #2) ADI-04-20-01, Security, Use of Force, Page (1); # 3) Windsor Jail Standing Orders, Section 3, Control/Security and Operations, Page(52).
That on, Tuesday, March 11, 2003, you failed to submit an Occurrence Report concerning the incident with inmate Horan on Tuesday, March 11, 2003 that detailed the nature of the threat posed by this inmate as well as all of the circumstances of the incident and this is a breach of #1) Ministry Policy ADI-01-07-01, Occurrence Reports; #2) ADI-02-13-01, Staff Conduct and Discipline; #3) ADI-04-20-01, Security, Use of Force, Page (1); #4) Windsor Jail Standing Orders, Section 3, Control/Security and Operation, Page (52).
The principles that apply to the determination of a non-suit motion were not in dispute. The standard to be applied in assessing the evidence is lower than the standard of the balance of probabilities. In determining whether a prima facie case has been made out, the arbitrator has to determine whether there is some evidence to support the claim. The arbitrator is not to assess the quality or credibility of the evidence, or what weight the evidence deserves. The facts are to be interpreted in a manner most favourable to the party against whom the motion is made. For example, where a witness provides different versions of an event, the version that is favourable to the party against whom the motion is made takes precedence. I agree with counsel for the Employer’s submission that an arbitrator is obliged to consider documentary evidence when assessing whether there is some evidence to support the Employer’s claim. During the submissions, I was referred to the following decisions: Re OPSEU (Dhanju) and Ministry of Municipal Affairs and Housing, GSB 2004-1101 (Dissanayake), Re OPSEU (Sager, Shelley et al) and Ministry of Transportation, GSB 2000-0377 (Mikus), Re OPSEU (Watkin) and Ministry of Health, GSB 902-89 (Samuels), Re Pelle Co. and U.S.W.A., Loc. 6457 (1994), 1994 CanLII 18731 (ON LA), 39 L.A.C. (4th) 370 (Kennedy), Re University of Western Ontario and C.U.P.E., Local 2361 (1990), 1990 CanLII 12893 (ON LA), 15 L.A.C. (4th) 189 (Dissanayake) and OPSEU (Faler) and Ministry of Correctional Services, GSB 218/89 (Fisher).
The issue for determination on this motion is whether the Employer has made out a prima facie case concerning the discharge of Mr. Fredericks. Put another way, the issue is whether there is some evidence to support the Employer’s claim against Mr. Fredericks. After considering the oral and documentary evidence adduced during the Employer’s case, the submissions of counsel and the relevant principles, it is my conclusion that the Union’s non-suit motion must fail and it is hereby dismissed. In accordance with the agreement of the parties and the GSB’s practice, I will not provide reasons for that conclusion.
Dated at Toronto this 23rd day of May, 2006.