GSB# 2022-11675

UNION# 2023-0545-0002

IN THE MATTER OF AN ARBITRATION

Under

THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT

Before

THE GRIEVANCE SETTLEMENT BOARD

BETWEEN

Ontario Public Service Employees Union (Lucia)

Union

• and -

The Crown in Right of Ontario (Ministry of Health)

Employer

BEFORE

Annie McKendy

Arbitrator

FOR THE UNION

Jeremy Lee Unified LLP Counsel

FOR THE EMPLOYER

Jonathan Rabinovitch Treasury Board Secretariat Legal Services Branch Counsel

HEARING DATES

August 22, 2023; June 6, 2024 and June 20, 2024

Decision

1This Decision upholds a one (1) day suspension of the Grievor. The Grievor is a driver responsible for delivering vaccines on behalf of the Ministry of Health. The vaccines are stored in refrigerated units and delivered using refrigerated trucks. The Grievor was suspended for deliberately leaving the vaccines on the loading dock for an extended period of time thereby allowing them to go above the required temperature range. The Grievor was also disciplined for breaching his oath of office by providing confidential information to the Public Health Units to whom he distributed vaccines.

2The Union grieved the discipline, and it was referred to arbitration pursuant to article 22.16 of the collective agreement. In keeping with this provision, the parties each called only one witness, and kept their respective examinations of the witnesses succinct. The parties also provided documents in advance of the hearing day and entered them on consent. This Decision is non precedential and is delivered with brief reasons.

Evidence

3The Employer called the Manager of the Ontario Government Pharmacy Warehouse Operation (“Manager”) as its only witness. The Manager reviewed data from the data loggers which record the temperature of the vaccine product as it is transported. He reviewed three temperature excursions that were corroborated by the documents: one on October 31, 2022, between 8:13 am to 11:11 am, and two on November 14, 2022, between 8:51 am and 9:46 am, and 9:23 am and 10:00 am. The Manager referenced a fourth excursion on November 14, 2022, between 9:10 am and 9:58 am, relating to vaccines destined for Woodstock. The document reflected temperatures increased above 7 degrees Celsius, but not above the 8-degree maximum set out in the Standard Operating Procedure 6.10 Transportation of a Cold Chain Vaccine Requisition by OGPMSS Drivers (the “SOP”).

4The Manager explained that the incidents came to his attention through three channels: he had received complaints from Public Health Units about temperature excursions. He had witnessed the Grievor placing his vaccine product on the loading dock, unrefrigerated, for long periods of time after arriving at work. Finally, he explained that coworkers had reported the Grievor’s practice of leaving vaccines on the loading dock.

5The Manager explained that vaccines should not be left unrefrigerated for more than thirty (30) minutes. He acknowledged that the thirty (30) minute timeframe was not specified in the SOP, but that it was the maximum time permissible to prevent temperature excursions. The Manager testified that the Grievor disagreed with certain operational changes which he had implemented when he became Manager, believing that the changes made it more difficult to load the trucks, and had left the vaccines on the loading dock to express his discontent with the changes. The Manager testified that if the Grievor had asked for assistance with loading or sorting boxes of vaccines, that he could have provided it in such a way that the vaccine product would have remained refrigerated.

6The Manager testified that he had received emails from the health units relaying comments made to them by the Grievor to the effect of “my boss is trying to get me fired” and “the data loggers are shit”. These emails formed the basis of the allegation that the Grievor breached his oath of office.

7The Grievor was the lone witness for the Union. He testified that recent changes to the operations made it impossible to load the boxes of vaccine product without placing them on the loading dock. He explained that prior to the operational changes, the packages were located on shelving in bio-coolers. After the Manager began in his position, he implemented a system whereby employees known as packers pre-arranged the vaccines on dollies located in the bio-cooler where the shelves had once been. The Grievor testified that though all the packages were supposed to be sorted on the dollies, they were in fact not, and that the drivers had to bring them out onto the loading dock where there was more room to sort them. He testified this took approximately an hour and half.

8The Grievor acknowledged that he asked the Health Units for data logs from the relevant days. He stated that he asked for them “politely”.

9Notably the Grievor did not deny that the temperature excursions occurred. However, he did not admit to them either. In fact, he did not address them in any way in his evidence, which was limited to his views about workplace operations.

10The Union submitted that while management had the right to manage the workplace as they saw fit, that it was unreasonable to discipline the Grievor for temperature excursions which became unavoidable due to the operational changes.

Analysis

11On a balance of probabilities, I find that the Grievor’s vaccines rose above the temperature range prescribed by the SOP on three occasions. I accept that these temperature excursions were caused by the Grievor allowing the vaccines to sit outside on the loading dock, rather than keeping them in the bio-cooler or loaded on a refrigerated truck while he sorted them for loading.

12In reaching this conclusion, I have considered the Manager’s evidence that he saw the Grievor leaving vaccine on the dock for extended periods of time, the data logs indicating that temperature excursions occurred on those mornings around the time the Grievor would have been loading his truck, and the absence of any other explanation by the Grievor.

13When faced with clear allegations of a temperature excursion, the Grievor took no accountability. Rather, he persistently criticized the operational changes. He provided no compelling particulars as to how the changes made the loading process slower. He stated generally that because the bio-cooler was small it was difficult to find misplaced packages inside. Despite providing pictures of the different set ups in the bio-cooler, he did not provide any explanation as to the dolly set-up made finding packages inside the bio-cooler impossible, or why he chose to risk the usability and efficacy of the vaccines instead of managing the inconvenience of trying to manoeuvre through a small space.

14This is a simple case where it was incumbent on the grievor to obey now and grieve later. The Grievor chose to ignore the guidelines of his job and jeopardized at least three shipments of vaccine product.

15The Employer did not establish every element in the disciplinary letter. First, the Union argued that a statement in the disciplinary letter that the Grievor caused “a total wastage of approximately $216,942.00 of vaccine product” was inaccurate and unduly harsh. The Manager acknowledged on cross examination that at the time the number was included, he was waiting for a decision from the Chief Medical Officer of Health as to which of the vaccines needed to be destroyed and which might have reduced efficacy or shelf life, and that the entire value of the product was not wasted. I accept that the number in the letter did not reflect the actual financial loss to the Employer. That said, there is no dispute that there was some combination of wasted vaccine, reduced efficacy or reduced shelf life, and huge potential financial loss. These consequences of his actions are still very serious. I further note that the value of the vaccine product was not the basis for discipline, but rather was provided to emphasize the seriousness of the Grievor’s actions.

16Second, the Employer only established that three of the four alleged temperature excursions occurred. I note that the four excursions were not specifically listed in the letter. Rather they were outlines in the notes of the two meetings held with the Grievor in relation to the events.

17Finally, I do not find that the Employer met its onus of establishing that the Grievor breached his oath of office. The emails from the Health Units reporting the Grievor’s alleged denigration of the employer’s operations were not entered into evidence. The parties did not raise any question around the best evidence rule, or whether the Manager’s evidence that he viewed the emails, and his brief summary of their contents, can be given any weight in light of their failure to produce the relevant emails. Given that the Manager’s oral evidence constituted double hearsay of the alleged comments made by the Grievor and was not supported by the best evidence, I provide almost no weight to his testimony on this point. I find that it is insufficient to establish the allegation in the face of the Grievor’s contradictory evidence that he asked “politely” for the print outs of the data logs.

18Nonetheless, I find that the quantum of discipline was reasonable in the circumstances. The Employer directed me to OPSEU (Benjamin) v Ontario (Ministry of the Attorney General), GSB No. 2019-0873 (Gee) at paragraphs 101 to 104, in which the Board reaffirms the principle that arbitrators should not adjust the penalty where it is within the range of reasonableness. In the circumstances, I note that the Grievor’s conduct caused multiple temperature excursions for which he took no responsibility, and that the excursions resulted in loss or reduced utility of the vaccine. The Grievor’s insistence that the employer’s operational changes were the cause of the misconduct suggests to me that his actions were done deliberately and in protest of the changes. For all of these reasons, I find that a one (1) day suspension is well within the range of reasonable penalties.

19For all of these reasons, the grievance is dismissed.