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HomeMy WebLinkAbout1999-0800.Braybrook.00-01-17 DecisionONTARIOEMPLOYÉS DE LA COURONNE CROWN EMPLOYEESDE L’ONTARIO GRIEVANCECOMMISSION DE SETTLEMENTRÈGLEMENT BOARDDES GRIEFS 180 DUNDAS STREET WEST, SUITE 600, TORONTO ON M5G 1Z8TELEPHONE/TÉLEPHONE,(416) 326-1388 180, RUE DUNDAS OUEST BUREAU 600, TORONTO (ON) M5G IZ8FACSIMILE/TELECOPIE:(416) 326-1396 GSB # 0800/99 OLBEU # OLB244/99 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN Ontario Liquor Boards Employees Union (Braybrook) Grievor - and - The Crown in Right of Ontario (Liquor Control Board of Ontario) Employer BEFORE Nimal DissanayakeVice Chair FOR THE Bernard S. Fishbein GRIEVOR Counsel Koskie & Minsky Barristers & Solicitors FOR THEAlison E. Renton EMPLOYER Counsel, Legal Services Liquor Control Board of Ontario HEARING December 16, 1999 Preliminary Decision A discharge grievance dated July 12, 1999 filed by Mr. Terry Braybrook came before me for hearing on December 16, 1999. The discharge of Mr. Braybrook was effected by letter dated July 5, 1999 signed by Mr. D.J. Golding, District Manager. It reads: This letter is further to my correspondence dated May 20, 1999, in which I advised you that your behaviour would not be tolerated any longer and that the next infraction, relative to your attendance or punctuality, would result in immediate termination. As you are aware, the LCBO has been addressing your on- going attendance and punctuality problems since at least October 1995. In view of continuing problems in this area, the LCBO made arrangements for you to attend a Musculoskeletal Screen and Physical Capacity Evaluation on March 4, 1998, and a Functional Tolerances Evaluation on March 5, 1998. In view of your numerous absences, the LCBO specifically requested an objective medical opinion concerning your ability to be able to work 40 hours per week, or, 5 8-hour shifts per week. The LCBO was advised that there were no medical findings to prevent you from doing so. Furthermore, the LCBO noted that your absences are largely tied to weekends, namely Mondays, Fridays, or Saturdays, and, despite requests we have not been supplied with any medical findings to support your repeated and sporadic inability to attend work. On September 22, 1998, you signed Minutes of Settlement, in the presence of your Union Representative and executed by your Union, in which you agreed to improve your overall attendance not to exceed more than 10 days, the corporate average, per year. You further agreed to improve your overall punctuality and to supply management with a medical note to substantiate every absence within 3 days. Conversely, the LCBO agreed to transfer you to another store, once again, as a means of offering you a last chance opportunity. 3 As of June 25, 1999, since signing the minutes of settlement on September 22, 1998, you have been absent on 13 separate occasions, excluding time off for last minute vacation requests. Moreover, you have left your post repeatedly, without authorization from your Manager, for cigarette breaks, in addition to your regularly scheduled break and lunch periods. You have also been late on numerous occasions, including, but not limited to, May 20, 1999, the day following your meeting with myself, Nicole Mahoney, H.R. Consultant, and Mr. Oliver, your Union Representative, during which we discussed these very issues. In light of your past history, the LCBO=s efforts to resolve these issues, and your continued unwillingness or inability to improve, your disciplinary record, and your failure to comply with the singed Minutes of Settlement dated September 22, 1998, the LCBO is terminating your employment effective immediately. The employer=s primary position is that the grievor was discharged pursuant to the terms set out in the Minutes of Settlement dated September 22, 1998, hereinafter referred to as Athe agreement@. In the alternative, the employer submits that quite apart from the agreement, in light of the grievor=s previous disciplinary record it had just cause to discharge the grievor. At the commencement of the hearing, the parties advised that there were a number of outstanding grievances relating to disciplinary penalties imposed on the grievor subsequent to the agreement and prior to his discharge. They agreed that the outcome of the discharge grievance before me may depend on 4 whether or not any or all of the discipline in those prior grievances is upheld, because that would determine the extent of the grievor=s discipline record. The parties agreed that in those circumstances, I should hear all of the outstanding grievances filed by the grievor. Having reached that agreement, however, the parties were in dispute on two aspects of how the hearing should proceed. I received submissions on those issues and upon request agreed to give the parties time to submit any additional written submissions. This decision deals with those procedural issues, in light of the oral and written submissions received. Issue No. 1 As a result of the parties= agreement, the following grievances are now before me: (1) A 5 day suspension for allegedly being late for work on May 20, 1999. (2) A 5 day suspension on May 3, 1999 for allegedly submitting a medical note late with respect to an absence from work. (3) A 3 day suspension on November 30, 1998, for allegedly having a key to the store office made without permission. 5 (4) A grievance dated December 3, 1998 wherein the grievor alleges that the employer had subjected him to harassment, discrimination and intimidation. The union points out that these grievances involve unrelated and distinct events which occurred on different dates. There will be different facts pertaining to each grievance. In the circumstances, the union submits that the grievances should be heard seriatim. Counsel is of the view that hearing evidence and submissions together on all of the grievances would make the proceeding too complicated and confusing, and deprive it of any logical flow. The employer on the other hand submits that the union=s approach would result in inefficiency. The grievor would have to take the stand several times. The District Manager would have to attend hearings on multiple days to testify about each of the discipline grievances. Since he is now retired the employer will have to sub-poena him each time. If all of the evidence is heard together, those witnesses can testify on all of the grievances on a single appearance on the stand. Counsel submitted that its approach would also shorten the overall hearing time. 6 In determining this dispute the Board must weigh the advantages and disadvantages of each approach advocated and resort to the procedure that makes most sense. I understand the employer=s concern that some members of management may have to attend hearings on several occasions if the grievances are heard seriatim. It may also take a little longer to complete hearings. However, I am of the view that this inconvenience is far outweighed by the disadvantage of hearing all of the grievances together. Quite apart from the difficulties union counsel foresees in presenting evidence in an organized and logical manner, I am most concerned that I might find it confusing trying to sort out what evidence applies to which particular grievance. I have before me several grievances which deal with similar issues related to attendance. In another grievance the grievor alleges discrimination, bad faith and intimidation on the part of the employer. I am of the view that if the parties so wish, steps can be taken to minimize duplication of evidence. For instance, the parties may request that the Board apply evidence given in one hearing to other hearings on matters of common relevance. For example, the employment history and duties and responsibilities of a witness. In the alternative, a witness may be asked to adopt testimony previously given. There is much opportunity to minimize, if not avoid, unnecessary duplication 7 and delay, if the parties have the desire to do so. The Board certainly will attempt to accommodate any such endeavours. On balance, the Board determines that the balance of convenience favours hearing the grievances seriatim, subject to any agreement by the parties or rulings by the Board, on procedures to minimize duplication and delay. It is so ordered. Issue No:2 The union has taken the position that the employer was not entitled to terminate the grievor on July 5, 1999, whether such discharge was based on the agreement or based on the grievor=s prior discipline record and the principles of progressive discipline. The union points out that under either grounds, in order to justify discharge on July 5, 1999 there had to be a culpable act on the part of the grievor at that time which would trigger the agreement or the principles of progressive discipline. It is the union=s position that there was no such triggering culpable act at the time of the discharge. According to counsel, what occurred was that on or about July 5, management suddenly decided to review the grievor=s past record and decided to discharge him because they concluded that the grievor=s record was unacceptable. 8 Employer counsel took the position that there was indeed a triggering event which justified the discharge on July 5, 1999, i.e. the grievor failed to provide medical notes within the prescribed time period with respect to his absence from work on June 17, 18 and 25 of 1999. In his written submissions union counsel appears to suggest that I should determine whether the employer was entitled to discharge the grievor based on these submissions alone. I am not prepared to do so. In the alternative, counsel suggests that I should initially hear evidence and submissions and determine whether or not there was a triggering culpable event, upon which the employer was entitled to rely. If the determination is that there was no such triggering event, the discharge would be rescinded for that reason alone and the Board would not have to hear evidence and submissions on anything else. In his view, this would avoid days of hearings. It is the union=s view that this is the more efficient and expeditious way of dealing with the discharge grievance. The employer objected to the procedure proposed by the union. Counsel pointed out that its position was that even apart from 9 the agreement, it had just cause to dismiss the grievor on July 5, 1999 based on his prior record. For that reason, counsel urged that I should hear all of the evidence and submissions relating to the discharge grievance before making any determination. There is no question in my mind that the approach advocated by the union is the more efficient and expeditious way of dealing with this grievance. Has the employer offered any valid reason why that approach is not appropriate? I do not find any. It is not clear whether it is the employer=s position that it was entitled to discharge the grievor on July 5, 1999 with or without a triggering culpable act on the part of the grievor. The employer is entitled to make any submissions in that regard. However, it is my decision that this issue should be determined first as suggested by the union. I am not prepared to determine this issue based solely on these submissions. Therefore, with regard to the discharge grievance, the Board will initially hear evidence and argument on the sole issue of whether a triggering culpable event was required as a condition of discharge under the agreement and/or the past disciplinary record basis, and if so, whether or not such an event existed 10 justifying the grievor=s discharge on July 5, 1999. I emphasize that the determination will only be a preliminary or Ajurisdictional one@. If it is found either that the employer was entitled to discharge the grievor regardless of a triggering culpable event or that the employer was entitled to rely on such a triggering event, the final disposition of the discharge grievance will have to be made in light of the disposition of the other outstanding discipline grievances. If the finding is that a triggering event was required for the discharge and that the employer was not entitled to rely on such a triggering event, the discharge grievance will have to be allowed on that grounds alone, without awaiting the outcome of the other discipline grievances. This proceeding will continue on the dates fixed, in accordance with the rulings made herein. Dated this 17th day of January 2000 at Hamilton, Ontario Nimal V. Dissanayake Vice Chairperson