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

CONFERENCE CALL

March 23, 2012.

Decision

1The grievor, a Correctional Officer at the Central North Correctional Center, was discharged on May 10, 2011. The union grieved the discharge. Two previous decisions have already been issued with respect to this matter. The first dealt with a motion by the union seeking to have the discharge set aside on technical grounds. The motion was dismissed, but the Board held that only one of the three alleged grounds for the discharge could be relied on by the employer.

2In the second decision, the Board determined that discharge was not the appropriate penalty and instead substituted a suspension. It was left to the parties to attempt to agree to the length of the suspension. The Board offered some guidance, and retained jurisdiction in the event the parties were unable to agree. As the parties were not able to agree the matter was argued. This decision deals solely with the length of the suspension as the grievor has already been returned to work.

3In attempting to help the parties reach a decision on the length of the suspension, the Board made reference to an earlier decision, Wickett et al, which was somewhat, but far from entirely, analogous. In that case four employees were suspended, one for two months, two for eight months and one for 10 months. The Board suggested in the second decision in this matter that the appropriate length of the suspension would likely most appropriately be somewhere between the extremes in the Wickett matter i.e., between two and ten months.

4The employer in this case, takes the position that a 10 months suspension is appropriate. The union counters that six months is more appropriate. The parties made submissions with respect to their respective positions. The parties agreed that a bottom-line decision would be acceptable. Notwithstanding that agreement, I intend to give brief reasons for my decision in this matter.

5It is the decision of this Board that six months is an appropriate suspension. There are a number of reasons for that decision. First, no other employee caught in the "sweep" by the employer received more than a 20 day suspension. I have already acknowledged that the behavior of the grievor in this case was more egregious than the others who were suspended but the difference in the length of the suspensions between 20 days and six months is more than sufficient to reflect the difference.

6Second, this matter is being decided in the pre-OCDC regime. Having regard to the length of suspensions meted out in that matter, I again find that the six-month suspension in this matter is sufficient to reflect the differences between the transgressions of the grievor in this case and the transgressions of grievors in earlier cases. I reiterate, once again, that if this matter was before the Board as a post- OCDC case the result, most likely, would be entirely different.

7Third, considering all of the facts outlined in Wickett et al., and the differences in the cases, I am comfortable that six months in this case is appropriate.

8Finally, and most relevantly, it is extremely important to consider the purpose of discipline, which is to correct and not to punish, and determine whether a six-month suspension meets that purpose generally, and specifically in this case. One of the considerations is whether or not the suspension acts as a deterrent against others doing the same thing. A six-month suspension is not a trifling length of time. It is half a year. It represents a loss of $40,000 or more, a very significant amount of money for anyone. It affects the way not only you live, but your entire family. It can result in significant debts and the loss of a home.

9This decision is public. Other employees will know the result of the actions of the grievor. It is impossible to know for certain what other employees will do, but it is difficult for me not to think that the knowledge that the grievor has lost as much as he has for his actions will not act as a deterrent. I acknowledge that the loss of 10 months’ income is greater than the loss of six months’ income but I honestly question the difference in the deterrent value between the two.

10The second consideration is whether the grievor has accepted the inappropriateness of his actions. In my view, the fact that the union, and by extension the grievor, has proposed and is willing to accept a six month suspension is proof in itself that the grievor has recognized that his actions were entirely inappropriate. The union and the grievor could have proposed a lesser period of suspension and still have come within the extremes of the suspensions in Wickett et al. That they did not strongly suggests to me that there is an explicit recognition of the seriousness of the transgressions of the grievor.

11My final consideration is whether or not there is likelihood of the grievor committing this or a similar infraction in the future. This has been embarrassing for him. What he did is public: it is known to his fellow employees. This has to have had an effect in his relationship with his fiancée, who stood by him through these proceedings. It is highly unlikely he will put her through this again, or that she will condone further actions of this sort by him. I think the possibility of a recurrence is exceedingly remote. Consequently I accept that six months more than adequately meets the purpose of correcting the grievor's behavior. Any period beyond that can only be viewed as punitive and not corrective.

12The files of the employer are to be amended to reflect a six-month suspension, without loss of service or seniority, from the date of his discharge and the discharge is to be rescinded. All references to the discharge are to be expunged from the records of the employer. The grievor is to be made whole, but not including potential overtime, for the period between the end of the six-month suspension and the date of his return to work.

13I remain seized to deal with any issue arising from this decision.