GSB#2010-1578, 2010-1579

UNION#2010-0521-0067, 2010-0521-0068

IN THE MATTER OF AN ARBITRATION

Under

THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT

Before

THE GRIEVANCE SETTLEMENT BOARD

BETWEEN

Ontario Public Service Employees Union (Glab/Ritchie)

Union

• and -

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

Employer

BEFORE

Felicity D. Briggs

Vice-Chair

FOR THE UNION

Tim Mulhall Ontario Public Service Employees Union Grievance Officer

FOR THE EMPLOYER

Bart Nowak Ministry of Government Services Centre for Employee Relations Team Lead

HEARING

March 8, 2012.

Decision

1The Employer and the Union at the Toronto Intermittent Centre agreed to participate in the Expedited Mediation-Arbitration process in accordance with the negotiated Protocol. Most of the grievances were settled through that process. However, a few remained unresolved and therefore require a decision from this Board. The Protocol provides that decisions will be issued within a relatively short period of time after the actual mediation sessions and will be without reasons. Further, the decision is to be without prejudice and precedent.

2Mr. David Ritchie and Mr. Andrew Glab are Correctional Officers who were working at Mimico Correctional Centre in the summer of 2010 when they each received a three day suspension for failing to report receipt of and forwarding an email which, by any objective measure was offensive. The contents were, in the Employer’s view, racist and degrading to women. I would argue with neither of those characterizations.

3There is no dispute on the salient facts. The grievors did not take issue with the Employer’s contention that they received and distributed an email that is contrary to the Employer’s WDHP policy. Indeed, it appears that from the beginning of this most unfortunate incident, the grievors have admitted their mistake.

4Both grievors have been with this Ministry for over a decade and were discipline free at the salient time. The Union conceded that some level of discipline is appropriate in the circumstances but the three day suspension was too severe in the circumstances. It was urged that the grievors’ seniority and favourable records should mitigate the level of discipline.

5The Employer urged that it views the grievors’ conduct as inappropriate, offensive and insensitive and that such conduct cannot be tolerated. A strong message had to be sent that such activity shall not be tolerated.

6The Employer stated in its letters to the grievors that this conduct was not a momentary aberration. I am not sure why that comment was made particularly given that there was no evidence to indicate that this incident was a part of an ongoing course of conduct. Indeed, I heard of no other similar incidents.

7The Union noted that while the Employer ordered the grievors to take a “one on one sensitivity/training/coaching” session, it was not provided until more than a year after the incident. I find that delay somewhat troubling given that the training was meant to redress an immediate and significant issue.

8I understand and appreciate that the Employer is making a significant effort to ensure that its employees understand that this type of conduct is totally unacceptable. There is no question that the email at issue is offensive on a variety of levels. However, in the particular circumstances of this case, I am not convinced that sufficient attention was given to mitigating factors not the least of which was the fact that both grievors were discipline free and were forthright when confronted with this issue.

9Accordingly, I order that the discipline be reduced to a one-day suspension. The letter shall be reissued with this change and the grievors shall receive all compensation and seniority lost.

10I remain seized.