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HomeMy WebLinkAbout1996-1636.Franssen.96-05-16ONTARIO CROWN EMPLOYEES GRIEVANCE SEl-l-LEMENT BOARD EMPLOY& DE LA COUROh’NE DE L’OhTAR~ COMMISSION RikGLEMENT DES GRIEFS DE 180 LXJNDAS STREET WES’I; SUITE 2100, TORONTO ON M5G-lZ8 180, RUE DUNDAS OUEST; BUREAU 2100, TORONTO (ON) A&G lZ8 TELEPHONElTiLiPHONE : (416) 326-1388 FACSlh4ILE/TiLiCOPlE : (416)326-1396 GSB # 1636/96 OLBEU # OLB263/96 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN BEFORE: FOR THE GRIEVOR FOR THE EMPLOYER HEARING OLBEU (Franssen) Grievor - and - The Crown in Right of Ontario (Liquor Control Board of Ontario) Employer L. Mikus Vice-Chairperson M. McFadden Counsel Koskie & Minsky Barristers & Solicitors V. Johnston Counsel Hicks, Morley, Hamilton, Stewart, Storie Barristers t Solicitors January 29, 1997 The grievor began his employment with the Liquor Control Board in 1984 and, since 1992, was Manager of the store in Moonbeam, Ontario, which is near Kapuskasing, Ontario. On September 29, 1996, he filed a grievance alleging unjust termination and seeking reinstatement with full compensation. The termination resulted from alleged misconduct dating back to 1994 and which was the subject of thirteen (13) Notices of Intended Discipline (NOID). These NOIDs are used extensively by this Employer to advise employees of allegations against them and to give them an opportunity to respond to those allegations. Aside from the first paragraph, which sets out the specific allegations, the letter is standard and states as follows: Within three (3) calendar days from receipt of this letter, you are asked to submit a written statement bv registered mail to mv attention, Manager, District #3, explaining the matter mentioned above. Should a meeting be scheduled following the receipt of your written statement, you are entitled to Union Representation, since disciplinary action may result from this meeting. If you chose not to respond, management will act on currently available information. A decision concerning this matter will be made known to you in due course. All of the NOIDs were signed by Mr. Bob Poulin, the District Manager and immediate supervisor of the grievor. At some point in 1996 Mr. Poulin became concerned about certain irregularities concerning the grievor’s activities and, after discussion with the Camille Clements-Pitchkur, Coordinator of Human Resource Service, decided to issue six (6) NOIDs to the grievor. He delivered those NOIDs 1 2 personally after being advised by Ms. Clements-Pitchkur not to discuss the details with the grievor. He met the grievor outside the store at about 0910 hours, about twenty minutes before the store was to open. They went to the grievor’s office and, when the grievor began a casual discussion about general store matters, Mr. Poulin told him he had bigger concerns. Their stories differ slightly about what happened next. According to the grievor, Mr. Poulin handed him the envelope containing the NOIDS and gave him time to read them. Mr. Poulin testified that he took the NOIDS out of the envelope and handed them to the grievor. In any event, it was agreed that, while the grievor read the NOIDS, he made comments about them to the effect that they were nonsense, made no sense and were untrue. Mr. Poulin did not respond to the grievor’s comments. He pointed out that he expected a written response, referred to one of the NOIDS which stated that the grievor was being suspended with pay pending investigation, asked him for his keys and requested he leave the store. The grievor subsequently received two additional NOIDs, one dated August 23, 1996 and one dated September 9, 1996, by Priority Post. He forwarded to the Employer a written answer to each allegation as requested in those letters. On September 13, 1996, he attended a meeting in Kapuskasing to discuss those NOIDs. Also in attendance were Dean Deluca, Union Representative, Ms. Clements-Pitchkur and Mr. Poulin. At the time Mr. Poulin was aware of additional allegations that had arisen since the August 22, 1996, NOIDs but, because he had not had time to investigate them, did not raise them with the grievor. Instead, on September 16, 1996, .he called the grievor at home late in the afternoon and requested that he attend at the Kapuskasing store as soon as possible. Me did not tell the grievor the purpose of the meeting. At the meeting he was handed another envelope containing an additional five (5) NOIDS. There was no discussion about the contents of the envelope and the grievor was told to read them later and to respond in writing as requested. On September 27, 1996, he was advised that his services were being terminated and he filed the instant grievance. Mr. McFadden, counsel for the Union, took the position that the discharge was a violation of article 26.3 and therefore void ab initio. Article 26.3 reads as follows: An employee who is required to attend a meeting for the purpose of discussing a matter which may result in disciplinary action being taken against the employee shall be made aware of the purpose of the meeting and his/her right to Union representation in advance of the meeting. The employee shall be entitled to have a Union representative at such meeting provided this does not result in undue delay. In the Union’s submissions, article 26.3 is clear. An employee is entitled to know, in advance, the purpose of a meeting that may result in discipline. It is equally clear that the allegations in the NOIDS would, if true, result in discipline. The only issue for this Board is whether the encounters between the grievor and Mr. Poulin on August 22 and September 16, 1996, were meetings. If they were, the only conclusion this Board can reach is that there has been a breach of the collective agreement. On the evidence, argued the Union, there can be no doubt that these encounters were meetings as contemplated under article 26.3. On August 22, 1996, Mr. Poulin attended at the store before it 4 opened and waited for the grievor to open the store. The grievor had no alternative but to let Mr. Poulin into the store and into his office. He was his immediate supervisor. Similarly, on September 16, 1996, the grievor was, in essence, ordered to attend at the Kapuskasing store as soon as possible. Again, he had no alternative. The grievor was not advised in advance of the purpose of these meetings or of his right to Union representation. Although it could be argued that, by September 16, 1996, he might have assumed the purpose of the meeting, it is the Employer’s obligation to ensure that the requirements of article 26.3 are met. At the August 22, 1996, meeting, while Mr. Poulin did not actively initiate any discussion of the content of the allegations, he acknowledged, in cross-examination, that the grievor’s spontaneous responses were natural in the circumstances. Even though the grievor did not make any inculpatory statements at those meetings, the fact is that he was placed in a position where he might have. That is contrary to article 26.3 which is intended to provide protection to an employee against such statements against interest. The Union contended that, not only did the Employer fail to advise the grievor of his right to Union representation, the NOIDs state clearly that only after the grievor has submitted his written statement is he/she entitled to Union representation. That is in direct conflict with article 26.3. The Union relied on the case of LaHay and Liquor Control Board of Ontario (June 5, 1995), GSB # 809/94 (M. Gorsky) which, it asserted, was applicable in the instant case. In that case the 5 grievor was suspended and later discharged for alleged improper cashiering procedures. He was working as a store clerk on June 13, 1994, when he was called into the Manager’s office. When he entered the office, he was preceded by two LCBO inspectors and an OPP officer. His manager handed him a NOID which set out the allegations and asked him what he was doing on the night in question. He was advised that he had been observed taking cash from the cash drawer and was asked if he had any explanation for it. Later it was discovered that the grievor’s actions had been videotaped. The Union, in that case, took the position that the discipline was void ab initio because the discipline was given in breach of article 26.3. The Union argued that article granted a substantive right to employees and that the nature of the mandatory protection under article 26.3 obliges the employer to advise the grievor of his right to Union representation prior to a meeting to discuss matters that might lead to discipline. It took the position, as it does in the instant grievance, that it was inconceivable that the meeting of June 13, 1994 was anything other than a meeting that might result in discipline. The Board, in the LaHay case, found that the meeting of June 13, 1994, had a dual purpose; that was “to arrest the grievor” and “for the purpose of discussing a matter which [might] result in disciplinary action being taken against” him”. It stated that, while there was no obligation on the employer to hold a meeting, once it did, it was required to conduct the meeting in accordance with article 26.3. The aw-ard stated, at page 53: 6 The fact that the Grievor was, by Exhibit 4, furnished with an opportunity to submit a written statement by registered mail explaining his actions with respect to the alleged improper cashiering procedures on May 4, 1994 does not overcome the breach of his rights under art. 26.3 His rights had already been breached by that time. There is a seamless connection between the meeting of June 13, 1994, the Grievor’s being suspended on that date (Exhibit 4) and his being terminated on June 23, 1994 (Exhibit 6). It is artificial to arbitrarily divide the process whereby a meeting was held on June 13 to discuss a matter which might result in disciplinary action being taken against the Grievor and the events following which were inextricably associated with it: That is, to state that the June 13 meeting was insufficiently related to the discharge of June 23 in an endeavour to make the suspension effected by Exhibit 4 the only action of the Employer that was void ab initio. The events of the meeting of June 13th; the suspension imposed, and the discharge are so inextricably linked so as to taint not only the suspension but the discharge. Cf. Hickson-Lanes (above) at pp 338-90. On that basis the grievance was allowed, in part. Because the issue of Union representation was not raised until later in the process, the Board was only prepared to compensate the grievor to the date the Employer was given notice of the Union’s motion. The Union took the position that this Board is bound by the decision in the LaHay case (supra), and should come to a similar conclusion. Mr. Johnston, counsel for the Employer, took the position that the facts of the LeHay case are not similar to the ones before this Board. In the LeHay case, the Board was dealing with an employer initiated action intended to illicit some inculpatory statement from the grievor. The employer and the OPP officer were attempting to get a confession from the grievor. In the instant case, the Employer simply handed over a packet of NOIDs. No questions were asked and no admissions were sought. The purpose of the personal contact with the grievor on August 22, 1996, was not to discipline the grievor but to relieve him of his keys and his duties. On September 16: 1996, nothing happened. The grievor was handed an envelope of NOIDs and was told to review them at home. 7 There was no discussion of the content of the NOIDs. The Union is seeking to expand the substantive rights under article 26.3 on the slight chance that an employee might make a comment when given a NOID. The giving of a NOID is not a meeting under the collective agreement. The meeting regarding those NOIDS was held on September 13, 1996 and a Union representative was present, as required. That is the intent of article 26.3. In the LaHay case, (supra), the Board applied the facts of the case before it to requirements of article 26.3. In that case there was a meeting held, at least in part, specifically for the purpose of discussing the allegations. In this case the Union has ignored the real purpose of the August 22, 1996 and September 16, 1996, encounters, which was not to discuss the allegations but rather to give the grievor the NOIDs. DECISION The parties are agreed that article 26.3 grants a substantive right to an employee to have the assistance of a Union representative whenever he/she is required to attend a meeting with the employer to discuss any matter that might lead to discipline. In the LaHay case (supra), the Board included extracts from many cases which explain the rationale of similar provisions. For example, in Re Canadian Canners Ltd. And the International Association of Machinists (1974), 5. L.A.C. (2d) 323 (Brandt), at page 325, it was stated: 8 . ..to ensure that the employee is fully advised of his rights and also to facilitate discussion which might lead to an amicable settlement of the dispute, short of any formal action taken. And, in Re Queen Elizabeth Hospital and C.U.P.E., Local 1156 (1988), 2 L.A.C. (4th) 1 (Davis), at page 6, it was said: . ..such representative will be in a better mental state at that moment to cope with the issue than the grievor and will be able to provide the grievor with timely advice. Several other principles have been established by Boards of Arbitration involving a breach of the duty to provide Union representation, the most significant being that such a breach renders the ensuing discipline void ab initio. In applying that principle to the facts of the instant case, the issue to be determined is whether, in the circumstances of this case, article 26.3 has been complied with. There are, in dispute, the NOIDs handed to the grievor on August 22, 1996, the August 23, and September 9, 1996 NOIDs, which were mailed to the grievor, and the September 16, 1996 NOIDs. With respect to the first group, it is clear from the evidence that there has been a breach of article 26.3. Irrespective of the slightly different versions of the actual conversation between Mr. Poulin and the grievor, when Mr. Poulin elected to present the NOIDs personally to the grievor, he initiated a meeting to discuss matters that not only might lead to discipline but, in fact, were destined to result in discipline, given the nature of the allegations. In the circumstances, the grievor had no alternative but to meet with Mr. Poulin. He was not advised in advance of the purpose of the meeting, nor was he advised that he could have a Union representative assist him. Even though Mr. Poulin did not make any inquiries of the grievor, the fact is he put the grievor in the vulnerable position of possibly making statements against interest without the advice and assistance of a Union representative. That 9 the grievor did not make any inculpatory statements is irrelevant to the issue. The fact is he could have and, if he had, the Employer, no doubt, would have relied on those admissions in determining whether to discipline the grievor. The NOIDs handed to the grievor on August 22, 1996, are therefore, consistent with the jurisprudence, void ab initio. For the same reasons, the September 16, 1996 NOIDs are void ab initio. The grievor was summoned to a meeting for the sole purpose of being handed additional NOIDs. Again he was not advised before the meeting of the purpose of the meeting or of his right to Union representation. Even though the NOIDs were in an envelope and there was no discussion of the allegations themselves, the grievor was once again placed in the vulnerable position of being handed notices of intended discipline without regard to his rights under the collective agreement. It would have been natural in the circumstances for him to have inquired about the contents of the envelope. He knew he was in trouble by that time. There was a substantial risk that he could have made statements against interest during that meeting. If he had, again I have no doubt that the Employer would have relied on those statements at a subsequent arbitration hearing. Article 26.3 is very broadly worded. Any discussion with an employee that might lead to discipline is subject to the requirement that an employee be advised in advance of the meeting and the purpose and that he/she is entitled to IJnion representation. Given the number and seriousness of the allegations in the grievor’s NOIDs, it is safe to assume that the Employer would have to take action against the grievor. He was entitled to the protections under the collective agreement in the circumstances. That leaves the issue of the NOIDs that were mailed to the grievor. They clearly state that the 10 employee is to provide a written response to the allegations. Only after the Employer receives the written response and schedules a meeting is the employee entitled to Union representation. By that time the employee might have already made statements against interest that will later be used against him/her. Indeed, in this case the grievor forwarded his written response to the Employer immediately upon receipt of the NOIDs. If he had the benefit of the advice of a Union representative, he might have responded differently. In my view, the instructions in the NOIDs regarding the written response are inconsistent with the intent of article 26.3. Nevertheless, I am constrained to interpret the collective agreement before me. It states clearly that the rights under article 26.3 arise only if an employee is required to attend a meeting to discuss a matter that might lead to discipline. The NOIDs that were sent by mail to the grievor do not fall into that category. It is therefore the decision of the Board that the NOIDs dated August 23 and September 9, 1996 remain outstanding, All other NOIDs are void ab initio. Dated this 16th day of May, 1996 ’ -P ’ ;7i’ ,~~,&& J’ Loretta Mikus, Vice-Chair.