GSB# 2005-0798, 2005-2105

UNION# 2005-0611-0001, 2005-0640-0002

IN THE MATTER OF AN ARBITRATION

Under

THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT

Before

THE GRIEVANCE SETTLEMENT BOARD

BETWEEN

Ontario Public Service Employees Union (Blanchette)

Union

• and -

The Crown in Right of Ontario (Ministry of Natural Resources)

Employer

BEFORE

Nimal V. Dissanayake

Vice-Chair

FOR THE UNION

Mark Barclay Grievance Officer Ontario Public Service Employees Union

FOR THE EMPLOYER

Sean Kearney Senior Counsel Ministry of Government Services

HEARING

April 26, July 24, August 10 & 11, October 23 & 24, 2006; January 25, 2007.

Decision

The grievor, Mr. John Blanchette has filed two grievances. The first, dated April 21, 2005, in essence, claims that he had been disciplined without just cause. The second grievance dated September 6, 2005 is a claim that he had been dismissed without just cause. Both grievances were heard together on consent.

For over 12 years, the grievor had been employed in different capacities with the Ministry of Natural Resources, as a seasonal employee, and under several unclassified contracts. This included two contracts as Deputy Conservation Officer. In late 2004, he successfully applied for a position of Conservation Officer/Detector Canine Handler (Hereinafter “Canine Handler”). His letter of appointment dated December 6, 2004 includes the following:

The details of the offer are as follows:

Position Title: Conservation Officer/Detector Dog Handler

Position Classification: Resource Technician 4-Conservation Officer

Salary Range: $26.61 to $28.78 (MplusM) per hour

Schedule: Schedule 4-7 - OPSEU, Administrative Bargaining Unit

Starting Salary: $26.62 per hour

Start Date: December 6, 2004

Merit Date: December 1, 2005

Location: Wawa, Ontario

The focus of this proceeding is on the termination of the grievor’s employment with the Ministry, which was effected by the following letter dated September 3, 2005:

This is to advise you that you have failed to meet the requirement of your position during your probationary period. This includes failing to follow direction, insubordination and displaying unprofessional behaviour in the workplace.

As a result I am exercising my authority under section 22(5) of the Public Service Act to release you for failure to meet the requirements of your position effective September 3, 2005.

Please be advised that you are not entitled to file a grievance as per Article 22.8.1. of the Collective Agreement.

The employer’s position is that the grievor’s employment ceased as a result of a probationary release pursuant to section 22(5) of the Public Service Act which provides: “A deputy Minister may release from employment any public servant during the first year of his employment for failing to meet the requirements of his position”.

The union takes the position that it is not appropriate to characterize this as a probationary release. Pointing out that the grievor had been previously disciplined for insubordination (which discipline is grieved by the grievance dated April 21, 2005), and that the release letter also refers to insubordination, union counsel argued that, this was a disciplinary discharge. Therefore, the employer has the onus to establish just cause for the grievor’s termination, albeit to a lesser standard. In the alternative, the union submits that the grievor’s release was made in bad faith.

The grievor’s employment status

It is agreed that the Canine Handler position the grievor obtained effective December 6, 2004 was his first classified position in the Ontario Public Service. Article 18.1 of the collective agreement envisages “a probationary period of not more than nine months” for a new employee. In passing, union counsel suggested that it was unfair and unnecessary that the grievor was required to serve the maximum nine-month period of probation, considering his prior employment with the Ministry. Nevertheless, in his closing submissions, Mr. Barclay accepted that the grievor was on a nine-month probation, and therefore still a probationary employee at the time his employment ceased. The Board finds on the evidence that to be the case.

Release v. Dismissal for Cause

Union counsel took the position during his opening statement that the grievor’s dismissal was disciplinary, and that the employer was therefore required to establish just cause for dismissal. However, in his closing submissions no specific arguments were offered as to why that was so. The letter dated September 3, 2005 which effected the severance of the employment explicitly states that the grievor was being released pursuant to section 22(5) of the Public Service Act for failure to meet the requirements of the position. The mere fact that the employer called it a release and treated it as a release is not necessarily dispositive. In a given case, there may be evidence that leads to a conclusion that the purported release was in fact a disciplinary dismissal. However, it is up to the union to lead that evidence, if it exists. The employer is not required to prove a negative. The fact that an employee had been disciplined for some unacceptable conduct, does not mean that such conduct cannot be considered in assessing that employee’s suitability for permanent employment, if it is relevant. In any event, the employer’s position was, (which the union explicitly accepted) that the past discipline was not considered in its decision to release. It does not convert a probationary release into a disciplinary discharge. In the present case, there is no evidence before me which suggests that the grievor’s employment came to an end other than by an exercise of the employer’s right under S.22(5) of the Public Service Act. Therefore, the issue is whether such right to release was exercised in accordance with the law.

The discipline grievance

Mr. Brian Morrison, Supervisor Investigative Support, Canine Services Unit, testified about the circumstances that led to the discipline in question. He stated that a female Labrador dog was selected to be the grievor’s canine partner. At the time the dog was in season. However, the veterinarian in Sudbury advised that the dog could still be spayed. Arrangements were therefore made for the surgery to be performed on April 12, 2005. Mr. Morrison testified, that he informed the grievor of these arrangements. He instructed that the grievor should get to Sudbury on the night of April 11 with the dog and be at the clinic the next morning at 8;00 a.m.. The grievor was also specifically instructed that following the surgery, the grievor should stay in Sudbury with the dog on the 12th night. The grievor was informed that reservations had been made for him at the Trillium for two nights. Mr. Morrison testified that in the presence of the grievor, the veterinarian discussed with him the fact that there were increased risks involved in the procedure because the dog was in season. Mr. Morrison later reiterated to the grievor the existence of that additional risk.

Mr. Morrison testified that on April 12th he happened to be in Mattawa. At 7:25 p.m. Mr. Morrison observed the grievor driving into Mattawa, where his family lived. He was surprised because he had given specific instructions that the grievor stay in Sudbury with the dog that night. Mr. Morrison became concerned whether something went wrong with the surgery. He called the veterinarian. The veterinarian reassured that the surgery went well, but expressed concern about the grievor. The veterinarian stated that the grievor did not seem to care much about the dog, that the grievor had left the clinic while the surgery was going on saying that he had some errands to run. After the surgery, when the time was established for the discharge of the dog from the clinic, the grievor had asked whether the dog could be kept overnight in the clinic. The veterinarian informed the grievor that it was not possible to keep the dog in the clinic overnight. The grievor was given the veterinarian’s home and mobile telephone numbers in case there was a need to contact, and was advised to be observant for any signs of bleeding because a dog spayed while in season was prone to complications. The veterinarian informed Mr. Morrison that he would not have approved a two-hour drive for the dog so soon after surgery.

Mr. Morrison discussed with his supervisor, Mr. Mike Kindree, Manager of the Intelligence and Investigation Section of the Ministry’s Enforcement Branch, the fact that the grievor had driven from Sudbury to Mattawa with the dog right after surgery, a drive of some two hours, which could have endangered the dog’s health. He had done this without informing the veterinarian and in disobedience of the clear and direct instructions given by Mr. Morrison. Mr. Kindree directed that the grievor be suspended for a day without pay. The following letter dated April 15, 2005 was issued to the grievor by Mr. Morrison:

Further to my discussion with you on Wednesday, April 13, 2005, and in accordance with Section 22(2) of the Public Service Act, I have removed you from employment without salary for 1 working day. This disciplinary suspension to be served on April 14, 2005.

During discussion of your Performance Development Plan on February 23, 2005, you were advised to not deviate from scheduled activities without prior approval of your supervisor.

On Friday, April 8, 2005, I instructed you in person and later by telephone to arrange accommodations at the Trillium Centre in Azilda for the nights of April 11 and 12, 2005. You were to stay there in order to facilitate a surgery spay procedure to your assigned candidate service dog. Following discussions with the veterinary staff, I advised you that this procedure could be more difficult due to the fact that the candidate service dog had come into season on this date.

On Sunday night, you called me at home to inquire about whether you were still required to drive to Gravenhurst on Monday to pick up a different dog and bring it to Sudbury. I explained to you that you now had your assigned service dog, and I repeated the same instructions given to you twice on Friday.

Following the spay procedure on Tuesday, April 12th, Dr. Stinson provided you with emergency phone numbers in case of any surgery complications that night. Upon picking up your candidate service dog later that afternoon, you were advised by Dr. Marin to be observant for any signs of bleeding and that complications could occur when spaying a dog that had come into season. At no time during your discussions with the veterinarians did you mention that you had cancelled your accommodations and planned to travel home to Mattawa. The veterinarians have advised that had they known of your intentions they would have recommended against it.

I have concluded that you were insubordinate in that you did not follow the clear directions given to you by your supervisor. Your actions endangered the life of a potential service dog.

Be reminded that you are on probationary staff.

I expect no further incidents of this nature. Failure to follow supervisory direction in the future may result in further disciplinary action up to and including dismissal.

Note that you have the right to grieve this discipline.

Upon the grievor returning to work after serving his one-day suspension, Mr. Morrison asked the grievor “how he had made out last night”. According to Mr. Morrison, the grievor replied “everything went fine”. Then Mr. Morrison asked the grievor whether he had brought the dog into his room or kept the dog outside. The grievor replied that the dog was kept outside but that he had checked the dog twice during the night. Next Mr. Morrison asked where the grievor had parked his truck. At that point the grievor replied “in my front yard”. According to Mr. Morrison it was only at that point that the grievor disclosed that he had gone home that night.

Mr. Morrison again met with Mr. Kindree and informed him that until he had specifically asked where he had parked the truck, the grievor had led him on to believe that he had stayed at the Trillium in Sudbury the second night also. Mr. Kindree directed that the grievor be suspended without pay for an additional day. The following letter dated April 15, 2005 was issued by Mr. Morrison to the grievor:

On Wednesday, April 13, 2005, I spoke with you regarding the surgery spaying of your candidate service dog on April 12, 2005. Initially, I spoke with you in the training room and you advised me that the surgery went well and that the dog had slept for a good 12 hours. I then asked you to come outside with me, away from the officers in the training room and I specifically asked you how last night had been at the Trillium Centre, where you were instructed to stay n the night of the 12th. I questioned you as to whether you had brought the dog into your room or kept her in the truck. You replied that your night was fine and that you had left the dog in the truck but checked on her twice during the night. I then asked you where you parked your truck at the Trillium Centre that night and you replied “In my front yard”. It was only then that you told me you had gone home.

I have concluded that you were deceitful and attempted to lead me to believe that you had followed instructions given to you by your supervisor.

Consequently, in accordance with Section 22(2) of the Public Service Act, I am removing you from employment without salary for 1 working day. This disciplinary suspension will be served on Monday, April 18, 2005.

Be reminded that you are on probationary staff.

I expect no further incidents of this nature. Further failure to follow supervisory direction may result in further disciplinary action up to and including dismissal.

Note that you have the right to grieve this discipline.

In chief, the grievor testified that he asked the veterinarian whether it was acceptable to keep the dog outside in the truck overnight, and that the veterinarian had no concern about that. However, he admitted that he did not ask about traveling with the dog to Mattawa. The grievor testified that he suggested that the dog be kept overnight at the Veterinary Clinic, but was told that they had no facilities. He testified that if he had stayed overnight at the Trillium as instructed by Mr. Morrison, the dog still would have been outside in the truck overnight, because “no pets are allowed at the Trillium”. He testified that he decided to go home to Mattawa, because in either case the dog would have to spend the night outside in the truck. He felt that at home, he could al least provide the dog more comfort by setting up a portable heater in the truck. Therefore, he logged on and advised the Provincial Communications Centre (PCC) of his travel plans. Upon arrival in Mattawa he logged on again to advise that he had arrived in Mattawa.

The grievor testified that he did not deliberately disobey Mr. Morrison’s direction, and did not know that the veterinarian would disapprove the travel. Union counsel asked the grievor what he thought in hindsight about what he did. The grievor replied that he could not have contacted Mr. Morrison before leaving for Mattawa. He stated that it would have been inappropriate to disturb Mr. Morrison because he was aware that Mr. Morrison was spending time with his son. He stated that he did what he felt was best for the dog.

About the second suspension, the grievor testified that at the office in the presence of other officers, Mr. Morrison asked him “various things” including how the dog was. After a few minutes Mr. Morrison told him “lets go out and talk”. The grievor testified “we went out. He asked me how the dog was doing and where my truck was parked that night I started to feel uneasy about the tone of his questions. I realized what he was doing - really trying to trick me into admitting to something not true – that I was hiding the fact that I went home. So I clearly told him that I went home”. The grievor denied that he was deceitful. He testified that he had seen Mr. Morrison in Mattawa the day in question and was therefore aware that Mr. Morrison knew. He again reiterated that in any event he knew that Mr. Morrison would know that he travelled to Mattawa because he had logged on to the PCC. Therefore, there was no attempt to hide his whereabouts.

The union filed the following letter dated April 13, 2005 which the grievor wrote to Mr. Morrison:

Although I will receive written documentation upon my return to work, I felt a response prior to returning was appropriate in regards to this matter. I am requesting this letter of explanation and apology be included in my file along with the suspension letter. I have had an outstanding record with the Ministry of Natural Resources for 12 years until now and I feel my reasons should be noted.

On Monday, April the 10th I reported to Sudbury as directed to bring my canine partner to the Veterinarian Tuesday morning. I observed the procedure and received post operative care instructions in writing as well as verbally. As I am still fairly new to the canine aspect of the position I followed them precisely. There was no mention of travel being a negative factor. I had concerns about the dog being kennelled in the canine vehicle overnight in below zero temperatures, out of my range of hearing. I consulted the vet in the afternoon to determine whether or not it would be better for her to stay at the clinic overnight and was informed they had no concerns nor any provisions for her overnight stay. Therefore, I proceeded home where she was kennelled where I could hear her, she was kept warm and monitored during the night and following morning as I was not scheduled to report to work until 1:00 p.m. Wednesday. My intention was to make the dog as comfortable as possible, not expose her to any increased risks.

I was mistaken. I have now been informed that the travel put her at risk and there was no concern about the freezing temperature. I wrongly assumed the reason for staying in Sudbury was for convenience and I felt my supervisor would not appreciate being disturbed for consultation on his day off.

Again, the reason for my decision was not a blatant disregard of instruction but one made with the best of intentions. Thankfully, the dog had no complications and is doing well. Unfortunately, I have received a suspension for my actions which can only be detrimental to my future within the MNR. I apologize for any inconveniences I may have caused. It will not happen again.

Under cross-examination, the grievor agreed that he had been instructed to stay at the Trillium in Sudbury the nights of April 11th and 12th, and that he decided on his own to go home on the 12th. The grievor agreed that he had cancelled the Trillium reservation for the 12th night, that he drove some 2 hours to Mattawa with the dog, that he did that without advising either the veterinarian or Mr. Morrison, that he did not inquire from the Trillium whether a service dog is allowed to stay in the room with him, and that he did not ask the Trillium whether they could provide a portable heater for the dog if it had to be kept outside.

The grievor agreed that Mr. Morrison always encouraged canine handlers to contact him no matter when or where he was, and that he had contacted Mr. Morrison several times during off hours in the past. However, he explained that he was being polite because he knew Mr. Morrison was spending time with his son.

I have concluded that the one-day suspension imposed on the grievor for insubordination was justified. The grievor was issued a clear direction that he stay at the Trillium in Sudbury on the 12th night. He failed to follow the direction. His explanation includes a number of assumptions which were made without a reasonable basis. He assumed that the veterinarian would not disapprove the travel, but did so without asking the veterinarian. He assumed that the Trillium would not permit him to keep the dog in his room, but made no inquiry about that. Similarly, he assumed that the dog will be more comfortable in Mattawa because he had a portable heater, but made no inquiry whatsoever whether arrangements could be made at the Trillium for a heater. Most significantly, the grievor failed to even attempt to consult with Mr. Morrison before deciding to deviate from clear instructions he had received. Given the uncontradicted evidence that Mr. Morrison had always encouraged handlers to contact him during his off hours, and the fact that the grievor himself had done so in the past, the evidence leads to a conclusion that the grievor had not considered it to be important that he must follow management’s legitimate instructions.

The Board does not place weight on the grievor’s letter of “apology” in all of the circumstances. Despite writing that after his suspension, during his testimony he was more defiant than remorseful. He attempted to explain and justify his action. When union counsel asked him what he thought of his actions in hindsight, he had the perfect opportunity to accept responsibility for his conduct. He did not do so. Instead he attempted to deflect blame, for example by criticising Mr. Morrison for arranging the spaying of a dog in season. He appeared to suggest that he had done nothing wrong, for example, by emphasizing that the dog had not in fact been harmed as a result of his conduct. The evidence as a whole does not indicate that the grievor accepted responsibility for his wrongdoing. It is for those reasons that I find that the employer has established just cause, and that a one-day suspension is not excessive in all of the circumstances.

The second day of suspension was imposed on the grievor, not for his act of insubordination in disobeying directions by travelling to Mattawa on April 12, 2005, but for deceitful conduct on April 13th, for allegedly attempting to mislead his supervisor into believing that he did stay at the Trillium that night. The onus of proving such deceit is on the employer. On a balance of probabilities, I conclude that the employer has not met that onus.

Mr. Morrison’s written letter of suspension records “I specifically asked you how last night had been at the Trillium Centre” and that “You replied that your night was fine”. However, when relating the conversation during his testimony, Mr. Morrison did not assert that he mentioned the Trillium Centre. As I have recorded, he testified only to the effect that he asked the grievor “how he had made out last night”. When the grievor testified about his recollection of the conversation, he did not state that Mr. Morrison specifically mentioned the Trillium Centre. In cross-examination it was not put to the grievor that Mr. Morrison had specifically asked about his night “at the Trillium Centre”.

In concluding that the grievor may not have intended to deceive Mr. Morrison, I note that the grievor testified that he was aware that Mr. Morrison knew that he had driven back to Mattawa, because as he drove into Mattawa, he also saw Mr. Morrison in his vehicle. Mr. Morrison could not dispute that and could only testify to the effect that he had no idea whether the grievor had also seen him at the time he saw the grievor. Moreover, the uncontradicted evidence of the grievor was that prior to his departure he logged on and informed the PCC that he was travelling to Mattawa, and that upon arrival in Mattawa he again informed the PCC. This evidence was not challenged or contradicted. The grievor testified that, therefore, he knew that Mr. Morrison would be aware that he travelled to Mattawa in any event. On the basis of the evidence, I am not satisfied on a balance of probabilities, that the grievor was intentionally deceitful.

For those reasons, I find that the employer has not established just cause for any discipline in relation to the events of April 13, 2005.

In summary, the grievor’s discipline grievance dated April 21, 2005 is allowed in part. The one-day suspension for insubordination is upheld. The grievance is allowed with respect to the second one-day suspension. The employer is therefore directed to strike that suspension from all files and to compensate the grievor for all losses resulting from that suspension. I remain seized in the event the parties have any disputes as to implementation.

The grievance relating to Release

I have already noted my finding that the grievor’s employment as Canine Handler ceased as a result of the employer’s decision to release him pursuant to section 22(5) of the Public Service Act. Therefore, the authorities relied upon by the union relating to an employer’s obligations upon discharging a probationary employee for cause are of no relevance.

The employer is asserting in this proceeding that the grievor was released in a valid exercise of its rights under the Act. Therefore, the onus of proof is on the employer. In Re Agboka, 0729/90 (Fisher) it was stated:

“It is the Ministry which must prove the defence of Section 22(5) of the Public Services Act, which includes proving that the grievor was given a fair assessment, that it was done in good faith, and that there was a rational connection between the facts and the decision Sheppard 491/86 (Sloane)”

The union led evidence to the effect that the grievor’s prior employment with the Ministry in different capacities over a period of over 12 years was blameless, and that the grievor had performed well during the competition process that led to his hire into the Canine Handler position, and during the assessment that followed. However, the issue in this case is not about the grievor’s past performance, his qualifications or his general competence. While he may have competently performed in different capacities with the Ministry, including as a Deputy Conservation Officer, the issue is his suitability for the particular position of Canine Handler. All concerned agreed that the Canine Handler position is unique. There were only a handful of Canine Handler positions in the Ontario Public Service. Moreover, the Board heard detailed evidence that the position required a significant amount of commitment and dedication to the canine partner on the part of the Canine Handler, 24 hours a day, 7 days a week. The evidence is also clear that this commitment to the dog, in turn, had a significant impact and stress on the handler’s family life. Particularly considering the uniqueness of this position as compared to the grievor’s prior jobs, his past performance and qualifications have no direct bearing on this grievance. In Re Syed, 1329/92 (Fisher), the Board noted that there were “significant differences” between the grievor’s previous position with the Ministry and his probationary position, and observed at p. 5

… there is no doubt that he appeared to have the qualifications to perform the job, otherwise, he would not have been hired in the first place. However, the Public Service Act imposes a probationary period on all new civil servants, regardless of their past experience. The mere fact that someone performed satisfactorily in one job does not insure that they will perform well in another similar position. The purpose of probationary terms is not only to test technical competence, it is also a time to see if the person’s work habits are appropriate and if they can work effectively with their co-workers and supervisors. If the Union’s position were to be accepted, then there would be no reason to even have a probationary period for jobs other than ones which have a significant amount of training. In reality, the main purpose of the probationary term is to see if the correct hiring decision has been made. It recognizes the fact that no matter how rigorous the hiring process is, there is nothing like observing an employee actually doing the job to determine if they can truly meet the requirements of the position.

In Re Eriksen 12/75 (Beatty), the Board stated that the probationary period is designed to recognize:

… the legitimate interests of the employer in attempting to secure the most competent, compatible and suitable work force it can acquire. One cannot reasonably expect an employer to be able to assess the full capabilities and potentiality of a job applicant from a brief interview, an application form, references and the like. Rather he must be entitled to an opportunity to view the new hire in the particular context of his own work environment. That is the sole purpose of the probationary period. It is, as we have said, a legitimate purpose.

The Board has asserted, and the parties do not disagree, that it has jurisdiction to review the release of a probationary employee pursuant to a grievance. However, that jurisdiction is extremely limited. See, Re Abdulla, 1103/85 (Verity), Re Shiralian, 914/86 (Roberts), Re Shaw, 410/88 (Barrett), and Re Speevak, 1578/89 (Verity).

In Re Sheppard, 2492/86 (Slone), the Board reviewed its jurisprudence and at pp. 14-16 discussed the extent to which the Board is entitled to review a release of a probationary employee.

It can be argued with some logical force that this Board does not sit as an appeal tribunal from the decision by a Deputy Minister to release a probationary employee for failure to meet the requirements of the position. We are not entitled to substitute our assessment of the probationer’s job performance for that of the Deputy Minister. However, the jurisprudence of this Board entitles us to review certain aspects of the release. The considerations fall within three somewhat overlapping categories:

A. Lack of Good Faith:

If the Employer lacked good faith in releasing the probationary employee, then the ostensible “release” will be considered actually to have been a dismissal, which can be grieved under Section 18(2)(c) of the Crown Employees Collective Bargaining Act. Clearly the bad faith, if found, must be relatively serious.

B. Unreasonable:

While this term is utilized in the earlier decisions we do not take it to mean that we can review the merits of the employee’s job performance and reinstate him if we find that the assessment was “unreasonable” that the employee had not met the job requirements. Reasonableness in this context is a species of good faith. Whereas the phrase “bad faith” could encompass a release improperly motivated or maliciously intended, “unreasonableness” speaks more to an objective assessment that the release did not flow logically or rationally from the facts. If for example, there was simply no evidence that probationary employee had not fulfilled or could not fulfil the job requirements, then no matter how well meaning were the actions of his superiors, the release would have been an unreasonable exercise of authority.

C. Rational Relationship between the Facts and the Release:

This factor is nearly, synonymous with “reasonableness”. If the Employer’s assessment that a certain set of facts justifies release is “irrational” on any half-intelligent view of the matter, then the release becomes a discharge and can be reviewed. The ‘rational relationship” test should not be placed too high. It is easy to brand as “irrational” any thought process or decision with which one does not agree. The Deputy Minister must be free to make decisions, without being found to have acted irrationally merely because a Board of arbitration might have come to a different conclusion.

Similarly, in Re Mahmood 115/76 (Beatty) at p.16, the Vice-Chair cited from an arbitration award he had written in Re Porcupine Area Ambulance Service, 1974 CanLII 2347 (ON LA), 7 L.A.C. (2nd) 182 to the effect that the Board’s inquiry

… should not take on the nature of an appeal as to the correctness of the company’s prognostication as to the future prospects of the probationary employee. We have already stated that some of the legitimate concerns of an employer in assessing the future employment relationship of a new employee, vis. His character, compatibility, potentiality for advancement and general suitability are necessarily vague. Further the judgment of the company is necessarily in the nature of a prognostication. Arbitrators should therefore be reluctant to interfere with that prognosis unless it is plain that the employer’s assessment or standards are palpably unreasonable.

Bad Faith

The union alleged that the grievor’s release was made in bad faith. I have thoroughly scrutinized union counsel’s final submissions in an effort to detect what evidence he may have relied on to support the union’s assertion of bad faith. I find none. Only passing reference was made to bad faith during final submissions. I note that it is not surprising that union counsel chose not to press the issue of bad faith, since there was no evidence to justify such an argument. There was no evidence that the grievor was denied any training or instruction that other canine handlers received. There is no evidence that he was denied any training that he had requested. To the contrary, the evidence is that Mr. Morrison was always ready and willing to assist. There is no suggestion that there was something the employer did or did not do, which adversely affected the grievor’s performance during his probation. Nor is there any suggestion, and certainly no evidence, that Mr. Morrison or Mr. Kindree had any improper motive or a desire to take reprisals against the grievor. The following statement I made in Re Fox 739/91 at p. 27 , also applies in the present case:

Based on the foregoing, we return again to the standard of review set out by the Board in Re Sheppard (supra). The Board held that “bad faith, if found, must be relatively serious”. The evidence at best shows that there were disagreements between Ms. Fox and her superiors. There is nothing to suggest that these disagreements translated into a malicious intention to take reprisals against the grievor.

In the present case there was evidence of Mr. Morrison being critical of the grievor’s job performance and attitude on several occasions. The grievor did not in most cases agree with those criticisms. However, it will be an unreasonable leap to infer bad faith from such work-related disagreements between a supervisor and a probationary employee, particularly in the absence of any other evidence of animosity or conflict.

In the circumstances, the Board concludes that the grievor’s release was not tainted by any bad faith, let alone “relatively serous” bad faith.

Unreasonableness/Rational relationship between the facts and the release

As set out in Re Sheppard (supra) both of those grounds in fact involve the same considerations. The issue was described by the Board as, whether on an objective assessment “the release did not flow logically or rationally from the facts”, or whether “the employer’s assessment that a certain set of facts justified release was “irrational” on any half-intelligent view of the matter”. In this regard, the Board in Re Sheppard also cautioned that the employer’s decision ought not be found to be “irrational” merely because a Board of Arbitration might have come to a different conclusion.

The employer led evidence, mostly through Mr. Morrison, of the concerns about the grievor, which led to its decision to release the grievor. Mr. Morrison had been largely responsible for the creation and subsequent expansion of the canine service within the Ministry. He was intimately involved in the setting up of the program, and the establishment of the related policies and procedures, as well as the training of canine handlers. In short, the evidence establishes that he is regarded as an expert in the field of detection Canine Services, in the Province of Ontario. He was one of only three individuals in Ontario certified by the Ontario Provincial Police as a dog instructor.

Mr. Morrison had kept detailed contemporaneous notes on his dealings with the grievor. These notes were filed in evidence. The Board will not review all of Mr. Morrison’s testimony which was tendered over several hearing days. Instead, the Board will review the main concerns about which testimony was tendered, along with the grievor’s explanations.

(1) Relocation in Wawa

Employer’s concern:

The evidence is clear that the Canine Handler position posted, the position for which the grievor applied and was appointed, was in Wawa, Ontario. This was the first Canine Handler position in Wawa. The position was approved only on a trial basis and the Ministry’s aspirations of expansion of the Canine program to the North-West region of the province depended on the success of the Wawa trial. The evidence is that during the hiring process, it was impressed upon the grievor that the commitment to the canine partner did not end at the conclusion of his work shift, that the position involved significant travel at all times of day or night and often for extended periods, and that it would require a significant change in lifestyle. At the time, the grievor, his spouse and 4 children lived in Cochrane, but he told Mr. Morrison that moving to Wawa was not a problem. After he started, the grievor’s family relocated in Mattawa. It was closer than Cochrane, but still 600 kilometres from Wawa. Mr. Morrison repeatedly advised the grievor that he needed to have his complete focus on his job and that having his family in Mattawa will not work. The grievor assured that by June 30th the family would be relocated in Wawa. However, the grievor had not established a permanent home in Wawa even as of the time of his release. He had rented a house in Wawa for himself, but his family continued to live in Mattawa. On some of his days off the grievor joined his family in Mattawa. On one occasion he inquired if it would be acceptable if he moved with his family to Sault Ste Marie and was told that it was not acceptable.

Grievor’s explanation:

The grievor admitted that he was aware at the time he accepted the position that he would be required to move his family to Wawa, and he intended to do so. However, upon arriving in Wawa he discovered that there were no medical services available in Wawa for his son, who had special needs. He moved his family to Mattawa which was closer to Wawa than Cochrane. He still intended to move the family to Wawa. This had not happened because he could not sell his house in Mattawa as the renovations that needed to be done could not be completed by him due to an injury he suffered. The grievor testified nevertheless that he could have responded to any call-outs even from Mattawa, and pointed out that there was no evidence that he had not been able to do so on any occasion.

(2) Grievor’s interest in other positions

Employer’s Concern:

On the very first day on the job as Canine Handler, the grievor disclosed that he was attending an interview for a position as Conservation Officer in Thunder Bay. When Mr. Morrison expressed his surprise that he would be doing that so soon after accepting the Canine Handler position, the grievor replied that he was “keeping his options open”. On another occasion, he requested that a scheduled interview be changed because he had to attend a job interview in Cochrane for a Conservation Officer position. At a meeting with Mr. Kindree and Mr. Morrison in April 2005, the grievor inquired about the possibility of a lateral transfer to other canine jobs. On a further occasion, he inquired from Mr. Morrison whether it would be possible for him to transfer to Mr. Morrison’s former Canine Handler position in Sault Ste. Marie. He had also inquired about positions in North Bay and in Guelph.

All of this continuing interest the grievor showed in other positions during the probationary period, caused concern for the employer that he was not committed to the Wawa position. The employer had made a significant investment in selecting and training the grievor and his dog. The success of this trial position was critical for realization of the employer’s aspirations of expanding its canine program into the North Western Ontario Region.

Grievor’s Explanation: He had made the applications for the Thunder Bay and Cochrane positions before he was appointed in Wawa. His inquiries about other positions were innocent inquiries about how lateral transfers worked, and did not indicate a lack of commitment to his Wawa position. He had always told Mr. Morrison that he was committed to his position.

(3) Failure to log on to PCC

Employer’s Concern:

On December 13, 2004 Mr. Kindree informed Mr. Morrison that he was unable to locate the grievor. Mr. Morrison called the PCC, who informed that they were also unaware of the grievor’s whereabouts because the grievor had not logged on. When Mr. Morrison called the grievor’s home in Mattawa, his wife informed that the grievor was on his way to Sudbury. All canine handlers are required to keep the ICC informed of their whereabouts at all times, so they can be contacted as required. The grievor had not followed the policy and procedure. He also failed to log on when he was working at home.

Grievor’s explanation: He was aware of the policy that required logging on and off. However, other officers did not follow that policy. He was simply following that practice of the other officers. After he was told that he had to follow the log on/off policy he did so.

(4) Personal Locator Beacon

Employer’s concern:

The PLB is a device issued to all field officers including Canine handlers. If the officer is in difficulty, for e.g. an auto accident or injured on duty, the officer is to turn the PLB on. It sends a signal to the search and rescue section which will take action to assist. It was a life-saving device. The grievor was issued a PLB and instructed to register it by calling in to the Sault Ste. Marie office as soon as possible. He finally registered after 7 months, only following numerous reminders.

Grievor’s Explanation: He called in and gave someone who answered the serial number of the PLB issued to him. He did not realize that the “formal registration” had to be done by filling out and returning a form.

(5) Failure to call in

Employer’s concern:

The grievor was on duty and scheduled to attend a refresher training session with others. There was a snowstorm that day. Two other officers’s called in to inform that they would be late due to the snow. The grievor turned up one hour late for the meeting but had not called in.

Grievor’s explanation: He was late because he had to stop several times to clean him windshield. No explanation offered for failure to call in lateness.

(6) Lack of interest and attention

Employer’s concern:

As part of refresher training an exercise was conducted in a government garage where objects were hidden and experienced handlers with their canine partners attempted to find the hidden objects. The grievor was there to watch and learn from them. However, a senior Canine Handler, as well as an OPP Sergeant brought to Mr. Morrison’s attention that the grievor did not appear to be interested, and was chatting with some Ministry employees who were smoking outside. Mr. Morrison called the grievor in, lectured to him that he was there to learn and instructed him to watch the exercises.

Grievor’s explanation: The others approached to talk to him and asked about the canine program. He did not want to be rude by not talking to them.

(7) Lack of Interest

Employer’s concern;

The canine handlers were in North Bay for a weeklong conference on District Investigation. Mr. Morrison noticed that during the meeting the grievor was continuously talking on his cell phone. When his battery died, he asked to borrow Mr. Morrison’s telephone. Mr. Morrison informed him that he should keep the use of his cell phone to a minimum and pay attention. The grievor was not present at an evening session arranged to facilitate networking.

Grievor’s explanation: That evening session was not mandatory. He did not attend because he had brought along his wife to North Bay. No evidence was tendered about the cell phone use.

(8) Failure to contact PCC

Employer concern:

On February 22, 2005 the PCC contacted Mr. Morrison to inform that the grievor had not contacted them and was also not answering his telephone. This indicated a “missing officer”. Mr. Morrison contacted Mr. Jeff Columbus, who was on the same course as the grievor and asked him if he knew the grievor’s whereabouts. The grievor was located ½ hour later.

Grievor’s explanation: None.

(9) Failure to comply with Compliance Activity Violation Reporting System requirements

Employer’s concern:

All officers were required to enter all of their activity in a given day on the CAVRS system and keep entries current to one week. On August 31, 2005 Mr. Morrison ran a report and found no entries from the grievor. He was reminded through a Performance Development Plan of the requirement. A review following his release revealed that the grievor had not made a single CAVRS entry during his whole period of employment as canine handler.

Grievor’s explanation: That he did not have enough training to do the CAVRS entries. However, he conceded that he had not informed his supervisor that he lacked training. Nor had he requested any additional training.

(10) Care of the canine partner

Employer’s concern:

The employer had several concerns:

(a) The grievor permitted a TV reporter to pet his dog, which was contrary to the training he had received. Mr. Morrison had to intervene and stop it. He gave the grievor a lecture about what he did.

(b) The grievor had no permanent kennel for the dog in Wawa. The dog was kept in the truck excessively despite directions that the dog should be out of the truck as much as possible. The grievor proposed the purchase of a used kennel from the SPCA for his dog. This would be very risky since such a kennel could transmit parasites, diseases and infections.

(c) The grievor had been issued a toothbrush, toothpaste and nail clipper for his dog. Months later, those were found unused and still in their original packaging. The employer was concerned that the grievor did not groom and care for the dog as required in the training manuals.

(d) The grievor sought permission to leave his dog with another Conservation officer on his off days when he went home to Mattawa. He was denied permission since that was contrary to policy.

(e) The grievor suggested that a neighbour could feed his dog by throwing food into the kennel while he was on holidays. This was also contrary to policy, which required that the dog should be fed only by the canine handler, his spouse or an adult child.

The grievor’s explanation: the grievor testified only about some of the concerns raised by Mr. Morrison. He testified that the TV reported petted the dog on its flanks only for 3-4 seconds, that he knew his dog would not bite or get aggressive unless the person acts aggressively. The dog was on a leash and in his control at all times. He did not have a permanent kennel because his landlord would not allow him to pour concrete on the property to build a permanent one. The dog was still comfortable in the portable kennel he had. He conceded that he had not brushed his dog’s teeth or clipped its claws. He said that his dog was young and had naturally clean teeth and no tartar. Therefore there was no need to clean her teeth. He said “there has to be a purpose for anything we do. You never fix something if its not broken”. Similarly, there was no need to clip the dog’s claws, since they wore down naturally. He pointed out that the veterinarian had not mentioned that he had noticed any problems with the dog’s teeth or claws. He pointed out that the Conservation Officer he wanted to board his dog with had completed part of the canine training and therefore was competent to care for his dog.

(11) Preferred breed of dog

Employer’s concern:

The employer had established that the preferred breed of dog for the service it offered was Labrador. The grievor was advised of this when he indicated a personal preference for German Sheppards. Mr. Morrison selected and assigned a Labrador dog to be the grievor’s canine partner. Yet the grievor continued to inquire about the availability of German Sheppard dogs.

Grievor’s explanation: He was inquiring about German shepherd in the event the Labrador chosen for him was rejected following the x-ray reports. He was merely inquiring whether it was an option to have a German shepherd. He fully understood that Mr. Morrison had the final decision on the breed of dog.

(12) Inappropriate work schedule

Employer’s concern:

The Canine Handlers by practice scheduled themselves. Mr. Morrison reviewed the schedule for August and September 2005 the grievor had prepared. From August 9 to August 24th he had scheduled himself to work 16 consecutive days, and then had 7 days off in a row. That created operational problems because Wawa will not have canine services for 7 days at a stretch. If a need arose, the employer would have to send a relief team from another area. Moreover, such a schedule was contrary to the collective agreement. The best canine coverage is obtained by a schedule with 4 days off in a 2-week pay period. Usually the practice is 5 days on and 2 days off with occasional changes t accommodate an officer’s particular needs. Mr. Morrison had to intervene and re-do the grievor’s work schedule.

Grievor’s explanation: He had prepared the schedule and fixed his family affairs and appointments on the days off. When management told him that the schedule had to be re-done he did not resist although it caused him inconvenience.

DECISION

In determining the grievance, the Board must apply the test expressed in case law in different language. The board must ask itself whether in light of the evidence before it, could it be said that the employer’s decision to release the grievor “did not flow logically or rationally from the facts?” Could it be said that the employer’s decision that the facts justify the grievor’s release is “irrational on any half-intelligent view of the matter?” Could it be said that the employer’s decision was “palpably unreasonable?” In answering those questions, the Board must be cognisant of the caution expressed in the authorities that a decision is not irrational or palpably unreasonable, merely because the arbitration board may not have reached the same decision as the employer did.

The union took the position that in this instance the employer’s decision was indeed irrational and palpably unreasonable. Counsel pointed out that the grievor had shown that he was a capable employee in his prior seasonal and contract positions with the Ministry, which included employment as a Deputy Conservation Officer. Counsel pointed out that in training for Canine Handlers the grievor had ranked within the top two places.

Counsel argued that the collective agreement does not preclude an employee serving probation in one position from applying for other postings. Nor is there any requirement that an employee’s family live with the employee in the town where the position was located. The only requirement in this case was that the grievor relocate in Wawa and he had done that. Union counsel submitted that the employer was not therefore entitled to consider those as negative factors in assessing the grievor’s suitability for the position.

Union counsel submitted that the employer had relied upon a host of minor issues in determining that the grievor was unsuitable. In every case once the grievor was advised that his conduct was unacceptable, the grievor had corrected himself. Counsel argued that the probation period is a time provided to a new employee to learn. Provided he had corrected himself by the end of the probation period, any shortcomings exhibited during the probation period should not be held against him.

On a careful consideration of the evidence, I have concluded that there is no basis for the Board to intervene in the employer’s decision to release the grievor. The exercise is not an assessment of the grievor’s competence generally. The issue is his suitability for the particular position of canine handler in Wawa. The evidence establishes that the canine handler position is very unique in terms of the level of dedication and commitment required of an incumbent. It is not a situation where responsibility ends at the end of the employee’s shift as is the case with most jobs. It is due to the requirement that canine handlers must be available during off hours that the employer was concerned about the grievor’s family living 600 kilometres from Wawa. It is not irrational nor unreasonable that the employer took the position that it was not workable for the grievor to attend to call-ins in the Wawa district on his off days when he is in Mattawa. Similarly, it cannot be said that it was irrational for the employer to question the grievor’s commitment to the canine handler position in Wawa considering his continuing interest in pursuing other positions.

I believe from the evidence, that some, but not all, of the issues the employer was concerned about stemmed ultimately from the grievor’s attachment to his family, and the difficulty he had relocating his family in Wawa, due to the lack of services for his son. While I sympathize with the difficult position the grievor was faced with, it is not reasonable to state that it was unreasonable or irrational for the employer to consider the impact of that on the workplace.

For all of those reasons the grievance dated September 6, 2005 is hereby dismissed.

Dated this 2nd day of March, 2007 at Toronto, Ontario