GSB#2008-1105

UNION#2008-0517-0027

IN THE MATTER OF AN ARBITRATION

Under

THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT

Before

THE GRIEVANCE SETTLEMENT BOARD

BETWEEN

Ontario Public Service Employees Union (Williams)

Union

• and -

The Crown in Right of Ontario (Ministry of Community Safety and Correctional Services)

Employer

BEFORE

Joseph D. Carrier

Vice-Chair

FOR THE UNION

John Brewin Ryder Wright Blair & Holmes LLP Barristers and Solicitors

FOR THE EMPLOYER

Michelle Dobranowski Ministry of Government Services Labour Practice Group Counsel

HEARING

February 2, April 6, June 15, July 15, August 23, September 2, November 23, December 8, 2010.

Decision

1This matter first came before me in February of 2010. The proceedings relate to the grievance of Mr. Jason Williams who alleges that his termination from the position of Corrections Officer in 2008 was unjust. At the current stage of proceedings, the Employer had closed its case. Rather than commencing with the introduction of the Union's evidence, Mr. John Brewin for the Union advanced a motion for non-suit. Subsequently, he and Ms. Michelle Dobranowski, counsel for the Employer, agreed upon a novel process. Their agreement was reduced to writing and reads as follows:

"Jason Williams (GST#2008-1105)

In the particular circumstances of this case and on the consent of the parties, on the December 8, 2010 hearing date scheduled for this matter the parties agreed to have the Board determine a particular question and consented to the procedure that will apply to the litigation of this matter on a go forward basis. Set out below is the question and the procedure. This methodology is being employed on the specific agreement of the parties and this agreed upon methodology is without prejudice and precedent to any other cases (as it relates to procedure).

The question the parties have put before me is, "Has the Employer established a prima facie case for dismissal?"

If the Board determines that the Employer has established a prima facie case for dismissal, the case will proceed in the ordinary course.

If the Board determines that the Employer has not established a prima facie case for the dismissal, the dismissal will be set aside and the Grievor reinstated in accordance with the agreement of the parties.

The parties have already agreed upon the penalty to be substituted and date of retroactivity for compensation purposes should the Board order the Grievor reinstated at this juncture of the proceedings. Vice-Chair Carrier is seized to deal with any issues related to the quantum or composition of retroactive compensation (but not the period of such).

The parties agree that the Vice-Chair will not be informed of the penalty to be substituted and date of retroactivity for compensation purposes."

2In view of the parties agreement, while I would normally take the time here to review the evidence received in detail, I will refrain from doing so at this juncture since I understand the parties are desirous of an expedited award with respect to what is essentially a non-suit motion by the Union here. Accordingly, my decision here will be brief and involve only an outline of the salient evidence. Furthermore, in keeping with this Board's practice, since the Union at this juncture was not required to make an election with respect to calling evidence, I will not be providing reasons for my conclusion set out later in this award.

BACKGROUND AND EMPLOYER EVIDENCE

3At the time of his termination in 2008 Mr. Williams had been a corrections officer for approximately 20 years. At that time he had a clear disciplinary record with respect to his employment. He was terminated for inappropriate conduct much of which took place while he was on paid leave from his regular duties. The following comprises an outline of the allegations with reference to Mr. Williams impugned conduct:

1. In 2007 he failed to notify his superintendent of his arrest on a criminal charge;

2. In 2008 Mr. Williams is again alleged to have failed to notify his superintendent of his arrest and incarceration with respect to further criminal charges including that conduct which precipitated his termination here;

3. Mr. Williams failed to co-operate in the Ministry investigation into his off duty conduct which had resulted in his arrest on January 8, 2008 and in his incarceration until February 5, 2008;

4. The course of conduct engaged in by Mr. Williams leading up to his arrest in January 2008 included interaction with local police officers of two different municipalities. Some of that interaction was by telephone and some involved direct physical confrontation. Included was the following conduct:

(a) having been instructed by police to refrain from contacting his ex-wife, he did so immediately thereafter. This domestic matter resulted in a charge of criminal harassment;

(b) When subsequently contacted by police officers respecting his continued harassment, he made death threats to the police and warned that he would set his two dogs on any officer who might come to interfere with him or pick him up;

(c) Soon thereafter police in a neighbouring municipality received an emergency call from Mr. William’s mother. She was concerned that he had taken a knife from her kitchen and left her home in an agitated state. Officers were dispatched to intercept him. This led to a series of events including a police chase, charges of impaired driving, dangerous operation of a vehicle, failure to stop for police and, finally, assault with a weapon. The evidence adduced indicated that Mr. Williams was observed driving erratically by police and, when followed and flagged, failed to stop. Ultimately, he did stop when a road block put up by other officers impeded his progress. During the course of a confrontation at the site, while still in his vehicle, Mr. Williams made to drive towards an officer; the officer was obliged to step out of the way to avoid being hit. When attempts were made to arrest Mr. Williams he resisted to the extent that tasers were required to subdue him. Additionally, it took the efforts of several officers to get him into the back of one of the police vehicles. The events leading to his arrest involved approximately five police vehicles. For clarity, the assault charge related to the alleged attempt by the Grievor to strike an officer with his car.

4Without attempting to outline the entire rationale for the Employer's decision to terminate Mr. Williams, which included his failure to notify the employer on two occasions of his arrests, essentially it was based upon conduct, albeit off duty, which the Employer viewed as inconsistent with his position as an officer of the peace, in particular, since much of it was directed at other officers of the peace. His conduct was viewed as serious and incompatible with the standards expected of persons in his position with the Ministry. Additionally, it was incompatible with the public peace which it was his duty and responsibility to uphold.

THE DECISION

5I have considered the evidence proffered by the Employer, submissions of counsel and the arbitral jurisprudence provided. I have considered all of this in the context of the tests outlined in that jurisprudence for assessing the quality and sufficiency of the evidence including in particular those set out in the following cases:

1. OPSEU (Gauntlett) and Ontario (Ministry of Finance), [2008] O.G.S.B.A. No. 133; GFSB Nos. 206-659, 2006-0929 (Gray);

2. OPSEU (Sager et al) and Ontario (Ministry of Transportation) (Oct. 6, 2004), G.S.B. Nos. 2000-0377 (Mikus);

3. Emergency Health Services Commission and C.U.P.E. Local 873, (2988), Source decision, 35 L.A.C. (3d) 400 (Black);

4. McKinley v. B.C. Tel. [2001] S.C.R. 161 (SCC);

5. OPSEU (Beltrano et al) and Ontario (Ministry of Community Safety and Correctional Services), (May 23, 2006) G.S.B. Nos. 2003-3547, 2003-3605, 2003-3603, 2003-3604 (Petryshen);

6. OPSEU (Gardiner) and Ontario (Ministry of Correctional Services) (March 15, 1984) G.S.B. Nos. 160-92 (Gray);

7. C.U.P.E. Local 1750 (Goslin) and Ontario (Workplace Safety and Insurance Board), (Sept. 22, 2009), G.S.B. Nos. 2008-3524, 2008-3530, 2008-3531, 2008-3532;

8. OPSEU (Gillis et al) and Ontario (Ministry of Community Safety and Correctional Services), (May 16, 2008) G.S.B. Nos. 2003-1520, 2003-1527, 2003-152?; 2003-1532, 2003-1536, 2003-1567, 2003-1825, 2003-1827, 2003-1833, 2003-1834, 2003-1835, 2003-1837, 2003-1843, 2003-1844, 2003-1850 (Abramsky).

6Having considered those, I am satisfied that the Employer has adduced evidence both in nature and sufficiency to establish a prima facie case for termination of Mr. Williams employment. In the circumstances, the motion for non-suit must fail and it is hereby dismissed. In accordance with the practice of this Board in such cases, and as noted earlier, I will refrain from setting out my reasons for this conclusion.

7The case may now proceed in the ordinary course.