GSB# 2004-2810, 2004-3120, 2004-3121, 2004-3324, 2004-3865, 2004-3952, 2004-3954
UNION# 2004-0234-0623, 2004-0234-0658, 2004-0234-0659, 2004-0234-0694, 2005-0234-0023, 2005-0248-0006, 2005-0248-0008
IN THE MATTER OF AN ARBITRATION
Under
THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT
Before
THE GRIEVANCE SETTLEMENT BOARD
BETWEEN
Ontario Public Service Employees Union (Chmurzynski 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
Gavin Leeb Barrister and Solicitor
FOR THE EMPLOYER
Suneel Bahal Counsel Ministry of Government Services
HEARING
November 7 & 18, December 2 & 8, 2005; January 18, February 2 & 3, May 29, June 20, July 11, 12, 13, 14, 19, 21, August 23, September 5, October 27, December 4, 7, 11, 2006; February 2 & 9, March 19 and April 4, 2007.
Decision
On June 10, 2004, an inmate escaped from a provincial bailiff bus transporting twenty-five inmates to the Central North Correction Center at Penetang. The inmate escaped from the door to the bailiff compartment located at the back of the bus when the bus stopped at a light in the town of Waverley. There was no bailiff in the rear compartment during the trip to CNCC as required by the Provincial Bailiffs Standing Orders. The bus continued on to CNCC when the light changed and did not stop until it was approximately five miles from Waverley after the crew realized that the rear compartment door had been breached and an inmate had escaped. Having received calls from citizens, Ontario Provincial Police officers attended at Waverley and captured the inmate in relatively short order.
The crew on the bus consisted of Provincial Bailiff R. Giraudy, with twenty-five years of service, and Acting Provincial Bailiffs D. Sindall and P. Chmurzynski, with fourteen and eleven years of service respectively. The employees met with Mr. S. Small, Manager of Prisoner Transportation Services, when they returned to Mississauga later on June 10, 2004. Mr. Small suspended each employee with pay pending an investigation pursuant to Article 22(1) of the Public Service Act. Further to Mr. Small’s request, Mr. P. Downing, Manager of the Correctional Investigation & Security Unit, appointed Inspector J. Eldridge on June 11, 2004 to conduct an investigation of the escape from the bailiff bus on June 10, 2004. During a meeting on June 18, 2004, Mr. Small advised each employee that he would be returning to work on June 21, 2004, but that they would not be permitted to work as a provincial bailiff until the matter was resolved. With the completion of the investigation and the disciplinary process, the Employer suspended Mr. Sindall and Mr. Chmurzynski for twenty days, and terminated the employment of Mr. Giraudy. The three employees filed grievances challenging the Employer’s disciplinary response.
The hearing of the grievances commenced on November 7, 2005, with the taking of a view, and required twenty-five hearing days, with four days devoted to final argument. At the conclusion of final argument, the parties advised through counsel that they were agreeable to a “bottom line” decision if I were prepared to give one in the circumstances. Having reviewed all of the evidence and having considered the submissions of counsel, I am prepared to give a “bottom line” decision, which is set out below.
The Union took the position that the twenty-day suspensions and the discharge are void because of double jeopardy, having regard to the suspension from June 11 to June 20, 2004, that each grievor received. The Union also argued that the twenty-day suspensions and the discharge are void because of delay. I have concluded that the Employer did not discipline the grievors in a manner which constituted double jeopardy and that the discipline each grievor received is not void due to delay. The Union conceded on the merits that each grievor engaged in some culpable conduct, but it argued that their conduct in the circumstances did not warrant the lengthy suspensions and a discharge.
The Employer took the position that each grievor engaged in serious misconduct that warranted the dismissal of the grievances. The Employer took the position that if I found that it did not have just cause to discharge Mr. Giraudy, I should award him damages rather than reinstating him. It is my conclusion that it would be inappropriate to deny Mr. Giraudy reinstatement in the circumstances of this case.
The disposition of the grievances is as follows:
The discharge of Mr. Giraudy shall be substituted with a three-month suspension. The Employer is directed to fully compensate Mr. Giraudy for his losses, subject to the suspension and any earnings through his mitigation efforts.
The twenty-day suspension issued to Mr. Sindall shall be substituted with a ten-day suspension. The Employer is directed to fully compensate Mr. Sindall for his losses.
The grievance of Mr. Chmurzynski challenging his twenty-day suspension is dismissed.
I will remain seized of the grievances should the parties encounter difficulties in implementing these directions. The reasons for this decision will follow in due course.
Dated at Toronto, this 5th day of July, 2007.