GSB#2010-2654
UNION#2010-0234-0283
Additional grievances noted in Appendix “A”
IN THE MATTER OF AN ARBITRATION
Under
THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT
Before
THE GRIEVANCE SETTLEMENT BOARD
BETWEEN
Ontario Public Service Employees Union (Pacheco)
Union
- and -
The Crown in Right of Ontario (Ministry of Community Safety and Correctional Services)
Employer
BEFORE
Ken Petryshen
Arbitrator
FOR THE UNION
John Brewin Ryder Wright Blair & Holmes LLP Counsel
FOR THE EMPLOYER
Suneel Bahal Treasury Board Secretariat Legal Services Branch Counsel
HEARING SUBMISSIONS
July 6, 2017 July 12, 2017
Decision
1I have before me four discipline grievances filed on behalf of Mr. J. Pacheco. There is a grievance dated February 12, 2015, which challenges a 10-day suspension, a grievance dated May 29, 2015, challenging a 15-day suspension, a grievance dated December 7, 2015, challenging a 20-day suspension and finally, a grievance dated March 3, 2016, which challenges the March 2, 2016 termination of Mr. Pacheco’s employment. There are also grievances filed by Mr. Pacheco which allege that he was subject to harassment and discrimination by the Employer. Initial attempts to resolve the grievances were unsuccessful. There have been a number of hearing days held thus far, but it is likely that many of the remaining scheduled hearing dates will be needed just to complete the Employer’s case.
2A mediation was held on June 22 and 23, 2017, in another attempt to resolve the grievances. This attempt to settle all of the grievances also proved to be unsuccessful. Up until that time, the Employer had maintained that it had just cause to discharge Mr. Pacheco, but if it was found that it did not have just cause to terminate his employment, the Employer indicated that it would request that Mr. Pacheco not be returned to the Bailiff Department. To put it simply, the Employer had been of the view that Mr. Pacheco was not a good fit for the Bailiff Department. However, the Employer advised the Union during the mediation that it had decided to return Mr. Pacheco to the Bailiff Department. It took this step without prejudice to its position on the termination grievance that a suspension should be substituted for the discharge and that Mr. Pacheco was not entitled to be compensated for his losses. The Union attempted to convince the Employer that Mr. Pacheco should be reinstated on terms in order to help ensure that his return to the Bailiff Department would be successful. The parties were unable to agree on the terms proposed by the Union and the Union indicated that it would likely request the Board to make an appropriate order for terms relating to Mr. Pacheco’s return to work.
3Soon after the conclusion of the mediation, the Employer sent Mr. Pacheco a letter rescinding the termination of his employment and directing him to return to work in the Bailiff Department on July 17, 2017. On June 26, 2017, the Employer sent a notice to all Bailiffs essentially advising them that it had become aware that audio recording devices had been utilized in the workplace and that such devices were prohibited in the workplace.
4In an email dated July 4, 2017, Union counsel indicated that the Union would be requesting that the Board order terms and conditions to be applied to Mr. Pacheco’s return to the workplace. Attached to the email was a document setting out the Union’s proposal entitled Terms and Conditions of Reinstatement. The Union’s proposal reads as follows:
Terms and Conditions of Reinstatement
In view of the following:
The Union and the Grievor allege in the grievances before the Board, and say that they will call evidence of, harassment and discrimination by the Employer against the Grievor because of his union activities and because of favouritism by Bailiffs’ Dep. Management of which the four disciplines, including the termination, are said to be some of the particulars;
In part, the union says this has contributed to what was already a poisoned work environment requiring outside intervention. The Grievor has concerns about how he will be treated on his return to work, especially until these proceedings have been completed;
On Monday, June 26, the first workday after the two days of mediation in this matter at the Board, the Employer sent correspondence to all staff in the Bailiffs’ department (the attached memorandum). In the circumstances prior to his termination, the Grievor had made audio recordings at work. The staff would have known that the memo referred to the Grievor and had been intended to create a negative impression of the Grievor in the workplace. No notice was given to the Grievor, the Union, the Board, or to the knowledge of the Union, that this was going to be the first step the Bailiff’s management would make to “welcome” the Grievor back to work. The local management knew or should have known that a substantial portion of the time at the Board on June 22 and 23 was spent on how the RTW should be managed so the re-entry of the Grievor into the workplace would be successful. The Employer knew that the Union was going to ask the Board to order terms and conditions on his RTW to ensure a better chance of a successful RTW. In that context the Union submits that the Employer’s actions will have made the Grievor’s re-entry into the workplace less likely to be successful and borders on contempt of this Board.
The practice has been in this Ministry and elsewhere in the OPS to suspend employees with pay while they are under investigation on serious allegations against them.
The Union asks the Board to order, as a term and condition of the Grievor’s reinstatement to his position:
A. That the Employer place the Grievor on leave of absence with pay until the grievance presently before the Board are resolved or as the Board otherwise orders, without prejudice to any claim the Grievor may make in these proceedings for compensation including compensation for lost overtime pay.
B. In the Alternative,
a. Before the Grievor returns to work, the Employer via correspondence remind all staff in the Bailiffs’ department of their responsibility to interact with each other professionally and with respect and to maintain a work environment free from discrimination and harassment;
b. With respect to the Grievor, the Employer direct all management and supervisory staff, including Regional Transportation Coordinators, to model the requirements in (a) and to enforce those requirements with the staff;
c. Any discussion