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166-2-30267, 30268 and 30269 (2002 PSSRB 9)
Larson v. Treasury Board (Solicitor General Canada - Correctional Service)
Before: E. Henry
Appearances: G. Mancini, for the Grievor; J. Jaworski, for the Employer
Decision rendered: January 25, 2002
Indefinite suspension pending outcome of criminal charges – Prison guard – the grievor was a correctional officer employed at a medium security institution – he was arrested, charged with arson and breach of probation and then was released on bail – following a brief investigation, the warden indefinitely suspended the grievor effective April 3, 2000, pending the outcome of the criminal charges against him because she believed that his continued presence constituted a risk to the security and safety of the institution – in her opinion, he would be unable to perform the duties of his position relevant to controlling and interacting with inmates – the grievor submitted three grievances to the employer relating to this matter – two involved alleged violations of the collective agreement – the third grievance objected to the indefinite suspension – the adjudicator considered the principles which must be applied in determining whether an indefinite suspension pending the outcome of criminal proceedings is justified – she pointed out that the employer submitted no evidence that the grievor's presence in the institution could be considered to present a reasonably serious and immediate risk to the legitimate concerns of the employer – neither did the employer take reasonable steps to ascertain whether the grievor could be assigned to alternative duties – furthermore, at no time did the warden or the person conducting the fact-finding investigation meet with the grievor to obtain his version of events, either before or after he was suspended indefinitely – the onus is on the employer to meet with the employee to get his version and not on the employee to seek such a meeting – in addition, the adjudicator rejected the warden's assertion that her action in suspending the grievor was administrative and not disciplinary in nature – accordingly, the adjudicator concluded that the imposition of the indefinite suspension was unwarranted – she found that the employer could have concluded a proper investigation of the grievor's circumstances within a month of the infraction – she therefore ordered the grievor's reinstatement with full pay and benefits retroactive to May 1, 2000 – however, she denied the grievor's request for interest on the amount owing.
Two grievances against alleged violations of the collective agreement denied.
Grievance against the indefinite suspension allowed, in part.
|Cases cited:|| |
Ontario Jockey Club and S.E.I.U. Local 528 (1977), 17 L.A.C. (2d) 176; Hamilton Regional Cancer Centre and Canadian Union of Public Employees, Local 3566 (2000), 91 L.A.C. (4th) 333; Fleming (166-2-13488 and 13489).