CITATION: OPSEU Local 740 v. Community Living Thunder Bay, 2011 ONSC 802
DIVISIONAL COURT FILE NO.: DC-10-004
DATE: 20110125
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
GREER, WHITTEN AND LITTLE JJ.
B E T W E E N:
ONTARIO PUBLIC SERVICE EMPLOYEES UNION LOCAL 740
Applicant
- and -
COMMUNITY LIVING THUNDER BAY
Respondent
David Wright for the Applicant
Mandy Fricot for the Respondent
HEARD at Thunder Bay: December 6, 2010
ENDORSEMENT: BY THE COURT:
[1] This is an Application under the Judicial Review Procedure Act, R.S.O. 1990, c.J.1 for judicial review by the Ontario Public Service Employees Union Local 740 (“Applicant”) challenging the decision of the Arbitrator Randy L. Levinson dated February 22, 2010. In that decision, the Arbitrator upheld the dismissal of Honour Wallace (“Grievor”) on the basis that the Grievor had verbally abused “K”, a client of the Community Living Thunder Bay (“Respondent”).
[2] The Applicant seeks to quash the decision of the Arbitrator because he found that a single instance of telling a client to “shut up” constituted abuse within the meaning of Article 7.11(i) of the Collective Agreement between the parties, such that no penalty can be substituted for a discharge. The Applicant says this finding constitutes an incorrect and unreasonable interpretation of the collective agreement. The Applicant also says that the Arbitrator’s reliance on the Respondent’s abuse policy in interpreting Article 7.11(i) of the Collective Agreement constitutes an incorrect and unreasonable interpretation of the Collective Agreement.
[3] The facts of this case arise from events which occurred during a shift on April 19, 2006 and led to the dismissal of the Grievor. During that shift, the Grievor, with two co-workers, drove two individuals who receive support from the Respondent, A and K, on an outing from Thunder Bay to Kakabeka Falls.
[4] In paragraph 7 of his decision the Arbitrator describes the events that ensued as follows:
There were three rows of seats in the van. The grievor drove. Ms. McLeod sat in the front seat. Ms. Vold sat beside A in the next row of seats. K was in the last row of seats. Ms. Vold described the radio as being very loud. K began to vocalize in a louder tone. The radio was not turned down. According to Ms. Vold, the grievor loudly told K to shut up.
[5] In paragraph 22 of his decision, the Arbitrator concludes that it was, “…sufficiently clear, convincing and cogent” to prove on a balance of probabilities that the grievor told K to shut up in the van. From the testimony in the direct examination of Ms. Vold and Ms. McLeod, it is evident that the grievor told K to shut up in the van. More specifically, their corroborative testimony proves that the grievor told K to shut up on one occasion in the van.
[6] We take no issue with either the Arbitrator’s jurisdiction or the jurisdiction of this court.
[7] With respect to the standard of review, the Applicant submits that it is one of correctness. The Respondent submits that the correct standard is that of reasonableness. We agree with the Respondent that in these circumstances, the standard of reasonableness applies, where legal and factual issues are intertwined. We agree that while some deference must be shown to an Arbitrator’s decision, in the case before us, we find the decision to be unreasonable.
[8] This Application effectively reduces itself to a determination of whether or not merely telling someone to “shut up” amounts to abuse, under these particular circumstances.
[9] In our view, it does not and was never in the minds of either party, certainly not the union Applicant, when negotiating the terms of the Collective Agreement in question and, in particular, s. 7.11 thereof.
[10] We come to this conclusion acknowledging that the Respondent, Community Living Thunder Bay, imposed upon its employees:
(1) The duty to promote and safeguard the physical and emotional well-being of its supported individuals; and
(2) The duty to protect the safety, security and dignity of those individuals.
[11] The Respondent’s policy in the Employer’s Staff Code of Conduct on abuse is set out in para. 3 of the Arbitrator’s decision. He says the abuse policy defines verbal abuse as:
...any communication towards an individual that may be reasonably perceived to be demeaning, seductive, suggestive, exploitive, insulting, derogatory or humiliating including but not limited to: sarcasm, swearing, racial slurs, teasing and inappropriate tone of voice. The abuse policy also provides that employees who witness incidents of suspected abuse must report the allegations immediately and must intervene to ensure the individual’s health, safety and well-being. The abuse policy stipulates a reporting procedure.
[12] This policy, however is not referenced to, or in any way incorporated into the collective agreement between the parties. As is noted in Central Park Lodges v. Christian Labour Assn. of Canada (Magealas Grievance) 2004 94672 (ON LA), 132 L.A.C. (4th) 406 (Barrett) at para. 47:
Not every inappropriate interaction with a resident is resident abuse. Health care aides are allowed to have human failings and cannot be held to a standard of perfection.
See also: Hoffman Meats Inc. and U.F.C.W., Loc. 139, Re, 1991 13445 (ON LA), [1991] O.L.A.A. No. 61, 20 L.A.C. (4th) 348 at paras. 13 and 15.
[13] What we do take issue with, however, is that the Arbitrator concluded in paragraph 26 of his decision the Grievor’s conduct constituted “abuse” within the meaning of Article 7.11 thereby mandating the singular penalty of discharge. See: s. 48(17) of the Labour Relations Act, S.O. 1995, c.1, Sched. A.
[14] The Respondent argues that because of factors including tone, volume, context, denial by the Grievor that she said it at all, and the fact that co-workers found the comment to be unprofessional and/or inappropriate, the use of the words “shut up” amounted to abuse in this case.
[15] The term “abuse” does not equate to merely inappropriate or unprofessional conduct. No evidence was advanced at the hearing to support any finding that the use of the term “shut up” was demeaning, insulting, humiliating or derogatory. Such characteristics are necessary to find abuse.
[16] Saying “shut up” to someone is simply a rude way of telling that person to be quiet. The finding in this case that the words used in the circumstances automatically amounted to abuse without containing the necessary characteristics indicated above, was an unreasonable and incorrect finding.
[17] When negotiating the Collective Agreement, the parties, no doubt, agreed that dismissal would be the sole consequence of “abuse” because of the nature of the employment but the meaning given to the word must be reasonably interpreted. It was not in this case.
[18] While it appears that as a result of certain of the Arbitrator’s findings, the Grievor could have been dismissed for “making false entries in records”, that issue was not argued either before the Arbitrator nor this court. Further, although two other issues were raised by the witnesses, the Arbitrator dismissed one in paragraph 20 of his decision on the grounds that the three narratives were irreconcilable, and in paragraph 21 found on the other issue, there was “no meaningful corroboration of what was actually said.”
[19] As a result, an order will go on the terms of the relief sought in paras. 1(a) and (b).
[20] Costs to the Applicant are fixed in the agreed upon amount of $7,500.00, inclusive of disbursements and H.S.T.
Greer J.
Whitten J.
Little J.
Released: January 25, 2011
CITATION: OPSEU Local 740 v. Community Living Thunder Bay, 2011 ONSC 802
DIVISIONAL COURT FILE NO.: DC-10-004
DATE: 20110125
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
GREER, WHITTEN AND LITTLE JJ.
BETWEEN:
ONTARIO PUBLIC SERVICE EMPLOYEES UNION LOCAL 740
Applicant
- and –
COMMUNITY LIVING THUNDER BAY
Respondent
ENDORSEMENT
By the Court
Released: January 25, 2011