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Larson v. Treasury Board (Solicitor General Canada - Correctional Service)

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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).