GSB#2011-0644

UNION#2011-0369-0048

IN THE MATTER OF AN ARBITRATION

Under

THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT

Before

THE GRIEVANCE SETTLEMENT BOARD

BETWEEN

Ontario Public Service Employees Union (Fraser)

Union

• and -

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

Employer

BEFORE

M. Brian Keller

Vice-Chair

FOR THE UNION

David Wright Ryder Wright Blair & Holmes LLP Barristers and Solicitors

FOR THE EMPLOYER

Paul Meier Ministry of Government Services Labour Practice Group Counsel

HEARING

January 27, 2012.

Decision

1The grievor, a Correctional Officer at the Central North Correctional Center, was discharged on May 10, 2011. The letter of discharge contained a number of allegations on which the Employer based its decision to discharge the grievor. The union made a preliminary motion to void the disciplinary action on the basis that it contravened a Memorandum of Understanding entered into by the parties on December 21, 2009. By decision dated August 29, 2011, this Board denied the motion of the union. In its decision, the Board stated that the matter would proceed but on the basis only of determining whether there were WDHP violations and if there was a determination that discipline was warranted, whether the discipline imposed was appropriate.

2At a subsequent hearing, the parties agreed to proceed initially by asking this Board to determine whether the WDHP violations were so significantly different from violations of other Correctional Officers at CNCC who were suspended only that, in the case of the grievor, discharge was warranted.

3It was further agreed that this decision would be, essentially, a bottom-line decision with brief reasons only. Finally, it was agreed that if the Board determined that discharge was not the appropriate penalty the matter would be remitted back to the parties to see if they could agree on the penalty. Failing an agreement, the Board would determine the appropriate penalty.

4The essential argument of the employer is that the violations of the grievor, both in terms of the nature and volume of the violations, were so substantially more egregious than the violations of other disciplined employees, that discharge was and is the only appropriate penalty. The employer compared the violations of the grievor and the violations of the other disciplines employees in urging this Board to reach that conclusion.

5The union, on the other hand, argues that first, the volume or number of violations is an inappropriate consideration as that is a back door means of reintroducing time theft as a grounds for the discharge. It argues as well that a comparison of the type of violations committed by the grievor and the other disciplined employees shows no substantial distinction which would warrant discharge in the case of the grievor only.

6Given that the Board has been asked to give what is effectively a bottom-line decision, it is not our view that anything stated in this decision can or should be considered as establishing a precedent for either party in dealing with matters of this type in the future. This decision deals with this case only.

7I have reviewed the video evidence submitted by the parties. I have considered, as well, the oral arguments made at the hearing and the documents put before the Board. The argument of the union that the volume is not a consideration is difficult to accept. In my view, it is something to be considered but is secondary to the principal WDHP violation issue.

8There can be no doubt that the grievor has violated the WDHP policy. But the essential nature of the violation is no different than the others disciplined but who were only suspended. The question is whether his violations were so qualitatively (and secondarily quantitatively) different so as to warrant discharge, the ultimate penalty in an employer-employee relationship, while others were only suspended. On balance, while I consider his violations more significant, I cannot conclude that the degree of difference warrants discharge as opposed to a suspension. One can find in the violations of the others the same nature of violations committed by the grievor. It is that factor which principally mitigates against the discharge.

9I note, as well, that this matter occurred in the pre-OCDC decision era which is a factor to be considered given the nature of the penalties imposed for violations at that institution. Had these violations taken place after, there is little doubt that the conclusion on my part would be different.

10Consequently, it is the decision of the Board that the penalty of discharge not be sustained and the matter will be remitted, as agreed, to the parties. I remit the matter, however, with the following comments for the parties to consider. First, counsel for the employer made reference to the possibility that the appropriate penalty could be some form of monetary payment in lieu of reinstatement. That would not be within the range of penalties that this Board would consider. There is nothing in this matter that puts it within the exceptionally rare category where this Board would consider that reinstatement is not appropriate. (See Wickett et al.)

11Second, It would not be unlikely that, were the parties to be unable to agree on the appropriate penalty, my determination, given the facts of this case, would be that a suspension lying somewhere between the two extremes in Wickett et al could be appropriate.

12The parties have until February 17, 2012 to conclude this matter. If they are unable to do so, a hearing will be held within 7 days of that date to resolve all outstanding issues.