Ontario Public Service Employees Union (Hamel) v. The Crown in Right of Ontario (Ministry of Community Safety and Correctional Services), 2015 CanLII 90147

GSB#2015-0809

UNION#2015-0234-0079

IN THE MATTER OF AN ARBITRATION

Under

THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT

Before

THE GRIEVANCE SETTLEMENT BOARD

BETWEEN

Ontario Public Service Employees Union (Hamel)

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

Nick Mustari Ontario Public Service Employees Union Grievance Officer

FOR THE EMPLOYER

Ann Fowler Treasury Board Secretariat Centre for Employee Relations Employee Relations Advisor

HEARING

November 25, 2015

Decision

1The Employer and the Union agreed to participate in the Expedited Mediation-Arbitration process in accordance with the negotiated Protocol for grievances filed on behalf of or by Bailiffs. A number of the grievances were settled through that process. However, one remained unresolved and therefore requires 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.

2Pat Hamel is a Bailiff with the Ministry and on April 23, 2015 he filed a grievance that asserted he was disciplined for just cause. The grievance was filed as the result of a three-day suspension imposed for alleged certain conduct involving another Bailiff (hereinafter referred to as “Mr. A”) in the workplace on February 26, 2015.

3The Employer received an occurrence report written by Mr. A. that alleged, amongst other things, the grievor stared at him in a “menacing and intimidating way” to the point where he was unsure if the grievor was “just trying to startle me or intimidate me or actually assault me by slamming the door into me.” According to the Employer, Mr. A. was so upset by this incident that it caused a sustained period of absence from the workplace.

4The Employer investigated this matter and during that process the grievor was interviewed. According to the letter of suspension the grievor was not remorseful and was not prepared to take any responsibility for this incident. At the med/arb sessions he continued to maintain that there was nothing improper about his conduct.

5In June of 2015 a video of this incident became available to the Employer. This video was shown at the med/arb session and it was the contention of the Union that it substantiated the grievor’s assertion that he did not do anything wrong.

6After considering the facts and submissions provided, I am of the view that the grievance should be upheld. The conduct seen in the video is simply not congruent with Mr. A’s assertions in his occurrence report. The deportment of the grievor is calm and non-threatening. Although there is no sound with the video I accept the grievor’s contention that he was not rude to Mr. A.

7The burden of proof is on the Employer in this matter and I am of the view that it has not discharged its onus.

8While I understand that the Employer thought the grievor participated in wrongdoing as the result of the complaint received, I think that once the video evidence was obtained, the discrepancy between it and the occurrence report ought to have brought about a review of the matter.

9In any event, the grievance is upheld. The grievor is to receive all compensation lost and have the discipline removed from any and all files. I remain seized.