HomeMy WebLinkAbout1999-0800.Braybrook.00-05-17 Preliminary Dec #2ONTARIOEMPLOYÉS DE LA COURONNE
CROWN EMPLOYEESDE L’ONTARIO
GRIEVANCECOMMISSION DE
SETTLEMENTRÈGLEMENT
BOARDDES GRIEFS
180 DUNDAS STREET WEST, SUITE 600, TORONTO ON M5G 1Z8 TELEPHONE/TÉLEPHONE,(416) 326-1388
180, RUE DUNDAS OUEST BUREAU 600, TORONTO (ON) M5G IZ8FACSIMILE/TELECOPIE:(416) 326-1396
GSB # 800/99
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 V. DissanayakeVice Chair
FOR THE Bernard Fishbein
GRIEVOR Counsel
Koskie & Minsky
Barristers & Solicitors
FOR THEAlison Renton
EMPLOYER Counsel
Legal Services Branch
Liquor Control Board of Ontario
HEARINGMarch 16, 2000
April 18, 2000
May 3, 2000
2
Preliminary Decision No. 2
A discharge grievance dated July 12, 1999 filed by Mr.
Terry Braybrook came before me for hearing on December 16,
1999. In addition, the parties agreed to put before me four
other grievances - 3 discipline grievances and a grievance
wherein the grievor alleges that the employer subjected him to
harassment, discrimination and intimidation. 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.
3
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.
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 was that the grievor
was discharged pursuant to the terms set out in the Minutes of
Settlement dated September 22, 1998. In the alternative, the
employer submitted that quite apart from the agreement, in
4
light of the grievor’s previous disciplinary record it had
just cause to discharge the grievor.
The union took the position that there was no
culminating event which entitled the employer on July 5, 1999
to dismiss the grievor by taking into consideration his past
record of discipline. On that basis he submitted that the
Board should determine that issue initially before dealing
with any of the other grievances which challenge past
instances of discipline. Over the objection of the employer,
by decision dated January 12, 2000, the Board agreed to follow
that process. At p. 9 the Board stated:
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 justifying
the grievor’s discharge on July 5, 1999. I
emphasize that the determination will only be a
preliminary or “jurisdictional 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.
5
The employer agreed, for the purposes of this hearing,
that it had to establish a triggering event in order to
justify the grievor’s dismissal on July 5, 1999. Its position
was that two such incidents exist.
The terms of the Minutes of Settlement dated September
22, 1998, (“the Minutes”) which were in effect at all relevant
times, were as follows:
whereas the Employer, The Union, and the Grievor
(collectively “The Parties”) are desirous of
entering into a settlement, they agree to the
following:
1.The Grievor and the Union agree to
withdraw the grievances filed at Stage 3
on June 18, 1998 and November 20, 1997
(GSB # 1986/97), not to be refiled;
2.The employer agrees to substitute a
written reprimand for the two-day
suspension that is the subject of the
grievance filed at third stage June 18,
1998, and reimburse the Grievor two day’s
pay at the applicable rate. The employer
further agrees to withdraw the notice of
intended discipline issued to the grievor
dated September 17, 1998 and place a
letter of counselling in its place;
3.The Employer agrees to transfer the
Grievor to Store 568, Toronto as a “last
chance” effort effective Monday October
12, 1998;
4.The Grievor agrees to improve his overall
attendance and shall not exceed the
Corporate average of 10 days per year.
This Settlement is without prejudice to
6
the Employer’s ability to address the
Grievor’s attendance through an “innocent
absenteeism” process. He will provide a
note from a health care professional no
later than three (3) days after his
absence, to his Manager, to substantiate
each absence;
5.The Grievor agrees to improve his overall
punctuality;
6.The Grievor will continue to work within
the confines of his modified work program
and will submit to an independent medical
assessment at the Employer’s request, for
the purpose of monitoring the Grievor’s
level of disability;
7.The Grievor’s next performance review
will be conducted by the Employer no
later than 6 months following the signing
of these minutes of settlement;
8.The terms of the Minutes of Settlement
signed April 8, 1998 will continue to
apply with particular respect to
paragraph 4 of those minutes with the
following amendments: the completion of
level 2 will be subject to a three month
evaluation by the Manager of Store 568 on
transfer, and the Grievor acknowledges
that access to the computer is at the
discretion of the Store Manager;
9.The Grievor acknowledges that a breach in
the terms of this Settlement will result
in progressive disciplinary action with a
minimum penalty of a five (5) day
suspension. Such a disciplinary penalty
shall not be subject to recourse through
the grievance/arbitration process except
to establish the veracity of the facts
upon which the discipline is based. The
Employer agrees to consider exercising
its discretion in the application of this
paragraph where the Grievor’s absences
are related to traumatic injury or
serious illness, for example, but not
7
limited to injuries or illnesses that
result in hospitalization;
10.Discipline awarded pursuant to Paragraph
9 above shall be awarded on a per
occurrence basis, not a per day basis.
For example, an absence of three
consecutive days will be deemed to be one
occurrence, and thus subject to
discipline once, not three times;
11.The Parties agree that the terms and
conditions of these minutes of settlement
will be kept confidential, except to
implement the terms of settlement, or to
enforce them;
12.These minutes shall be in effect until
such time as the Grievor has worked for a
period of thirty-six (36) months without
being subject to discipline as a result
of a breach of these minutes;
13.The parties agree that the terms of the
settlement are without any admission of
liability, and, such admission is
strictly denied;
14.The Parties agree that this settlement is
without prejudice or precedent to any
other matter between the parties;
15.The Union, as the Grievor’s agent, and,
on its own behalf, accepts these terms of
settlement;
16.The Grievor agrees that he has read the
terms of settlement, understands them,
and enters into these minutes freely,
voluntarily, and without coercion or
duress;
The two triggering events relied upon by the employer
arise out of alleged non-compliance by the grievor with para.
8
4 of the minutes. It is alleged that the grievor failed to
comply with the undertaking he made in that paragraph to not
exceed the corporate average of 10 days per year of absence.
Secondly, it is alleged that the grievor failed to provide a
note from a health care professional no later than three days
after his absence on June 25, 1999.
Throughout the hearing, the minutes were referred to as
a “last chance” agreement. Typically, a last chance agreement
is one that stipulates explicitly that any breach of its terms
will automatically result in the discharge of the grievor.
This is not such a document. In contrast, these minutes only
stipulate that “a breach in the terms of this settlement will
result in progressive disciplinary action with a minimum
penalty of a five (5) day suspension”. I simply note,
therefore, that it is somewhat of a misnomer to refer to these
minutes as a last chance agreement.
I now turn to consider whether the employer was entitled
to rely on a triggering event that the grievor exceeded the 10
days per year absence limitation in the minutes. The
obligation of the grievor is set out in para.4. It says
“Shall not exceed the corporate average of 10 days per year.”
It was agreed between the parties that the grievor’s record of
9
absence from the date of the minutes up to June 25, 1999 was
as follows. He was off sick on October 16, 26; November 2,
13, 20, 21; December 2, 3 of 1998; December 9, 1998 to April
5, 1999; April 16; May 10; June 17, 18, 25 of 1999.
The grievor had undertaken not to exceed the plant
average of 10 absences in a year. Mr. Golding testified that
following the signing of the minutes, several concerns about
the grievor were brought to his attention. It caused him to
formally meet with the grievor on May 19, 1999 to reinforce
the seriousness of the obligations under the minutes.
Following the meeting, Mr. Golding wrote to the grievor the
following letter dated May 20, 1999:
This letter is further to our meeting on May 19,
1999, during which we discussed several matters
surrounding your performance.
More specifically, we discussed your on-going
attendance problem, including punctuality, and,
the fact that you feel that you can leave the
store whenever you need a “smoke break”.
Additionally, we discussed the fact that last
minute vacation requests, i.e., 1½ hours prior to
shift start, is unacceptable.
On September 22, 1998, you signed Minutes of
Settlement in which we agreed to transfer you,
again, as a “last chance”, to Store 568, situated
in my district. You agreed to improve your
overall punctuality, improve your attendance not
to exceed the Corporate average of 10 days per
year, unless of course due to serious injury or
illness, and, furthermore, you agreed to provide
a doctor’s note to your manager within 3 days of
each absence.
10
Since your transfer to Store 568, Toronto, you
have been absent a total of 10 days, not
including two last minute vacation requests
because of the TTC strike, and, not including
your leave of absence without pay from December
7, 1998, up to April 5, 1999. You have been late
on at least 2 separate occasions, and you have
been repeatedly counselled for leaving the store
during your shift to have “a smoke break”.
Furthermore, you have been issued 4 Notices of
Intended Discipline, 3 of which resulted in
discipline, for various infractions including
falsifying documents, failure to report to work
on time, insubordination, and failing to provide
a doctor’s note for one absence.
I will not tolerate your behaviour any longer and
I expect to see an immediate improvement in the
areas that we discussed. Furthermore, I must
advise you that the very next such infraction
will result in immediate termination.
Once again, Mr. Braybrook, you have agreed to try
and improve your overall work ethic and we hope
that you do.
Mr. Fishbein for the union, submitted that the employer
was not entitled to rely on the grievor’s breach of the 10 day
limit on absences as the triggering event for his dismissal
on July 5, 1999, because that breach of the condition occurred
long before July 5, 1999. He took the position that the
employer was not entitled to act on July 5, 1999, to dismiss
the grievor based on his past conduct, when there was no
triggering event on or about July 5, 1999. In his submission,
it was only such a triggering event which would entitle the
employer to review the grievor’s past record and to act on it.
11
Ms. Renton for the union did not dispute the legal
principle espoused by the union. However, she disagreed with
the union’s assertion that the grievor’s breach of the 10 day
condition had taken place “long ago”. She pointed out that it
was the employer’s practice to count an absence of several
consecutive days of absence as one “occasion” of absence. On
that basis, she submitted that the grievor did not exceed 10
occasions of absence until his absences in June 1999 which was
just prior to the dismissal. In other words, the exceeding of
the 10 days at that time was a triggering event upon which the
employer was entitled to act.
There is no evidence that a practice of counting
“occasions” (rather than days) existed or that if such
existed, that it was applied in this case. In any event, such
a practice is completely irrelevant because the obligation
undertaken by the grievor, and the condition he had to meet,
is that contained in para.4 of the agreement, and that was to
not exceed the corporate average of 10 days. Moreover, the
person who decided to discharge the grievor, Mr. Golding,
unequivocally testified that at the time he signed the May 20,
1999 letter, he was aware that the grievor had already
exceeded the 10 day limit. He chose to address that concern,
12
as well as other infractions by the grievor, by counselling
him and warning him at a meeting. Having elected to do so in
May, the employer was not entitled to resurrect that same
incident again as a triggering event for discharge in July.
In other words, the breach of the 10 day limit was not a
triggering event in July 1999.
I now turn to the second triggering event relied upon by
the employer - the failure to provide within 3 days a medical
note for the absence on June 25, 1999. The union’s primary
position in this regard is that the employer is not entitled
to rely on this allegation at arbitration, because it is a new
ground which was not relied upon at the time of the discharge.
In the alternative, it is submitted that while the grievor did
fail to provide the medical note within 3 days, he had a
reasonable and excusable reason for the delay, and that in
those circumstances it could not have constituted a triggering
event.
The letter of discharge dated July 5, 1999 is set out
above at pp. 2-3. Mr. Golding testified that this letter was
prepared for him by the Human Resources Dept. In para. 3,
Mr. Golding refers to the minutes and summarizes the
respective obligations the grievor and the employer had
13
undertaken pursuant to it. With regard to the grievor it is
noted that, (1) “you agreed to improve your overall attendance
not to exceed more than 10 days, the corporate average”; (2)
“to improve your overall punctuality; and (3) “to supply
management with a medical note to substantiate every absence
within 3 days”. With regard to the employer, it is noted that
“the LCBO agreed to transfer you to another store, once again,
as a means of offering you a last chance opportunity”.
In the next paragraph, Mr. Golding sets out the conduct
of the grievor “as of June 25, 1999, since signing the minutes
of settlement of September 22, 1998". It is noted that in
that period (1) “you have been absent on 13 separate
occasions, excluding time off for last minute vacation
request”; (2) “you have left your post repeatedly, without
authorization from your manager, for cigarette breaks, in
addition to your regularly scheduled breaks and lunch
periods”; (3) “you have also been late on numerous occasions,
including but not limited to May 20, 1999.
During his examination-in-chief, Mr. Golding was asked
for the basis upon which he decided to discharge the grievor.
He replied “He had exceeded the 10 days he had agreed to. He
also did not supply doctor’s notes within 3 days for his
14
absences”. He was not asked and he did not explain when the
10 day limit was exceeded or for what absences the grievor had
failed to provide doctor’s notes. In any event, under cross-
examination, Mr. Golding conceded that the discharge letter
did not refer to failure to provide doctors notes at all as a
reason for the decision.
The leading authority on this issue is the award in Re
Aerocide Dispensers Ltd., (1965), 15 L.A.C. 416 (Laskin). At
pp. 426-7 the Board wrote:
The board is justified in a case of challenged
discharge to hold the employer fairly strictly to
the grounds upon which it has chosen to act
against an employee who consequently feels
himself aggrieved. This is not to say that the
board should be overly technical in assessing an
assigned cause of discharge but it does mean that
it ought not to permit an assigned cause to be
reformed into one different from it merely
because the evidence does not support the
assigned cause but rather one something like it.
The parties prepare their submissions to
arbitration according to the issues raised by the
grievance and the answer or answers thereto, and
the case comes to arbitration after having run
the gauntlet of the grievance procedure and
discussions therein. If another cause of
discipline emerges from the evidence other than
the one stated at the time, it is not an
automatic conclusion that the employer would have
treated it the same way merely because it finds
it necessary to say so because of the turn of the
evidence at the arbitration.
15
The principle in Re Aerocide has been consistently
applied subject to one significant modification reflected in
cases such as Re Ontario Hydro and C.U.P.E., Loc. 1000 (1988),
3 L.A.C. (4th) 112 (Brent); Re Canadian Airlines Int’l Ltd. and
C.A.L.P.A. (1988), 35 L.A.C. (3d) 66 (Munroe); Re Phillips
Cables Ltd. and I.B.E.W., Loc. 625 (1993), 32 L.A.C. (4th) 153
(Outhouse); Re Loblaw Groceterias Co. and Union of Canadian
Retail Employees C.L.C. (1973), 3 L.A.C. (2d) 325 (Adams).
In Re Bruce Retirement Villa, (1998) 75 L.A.C. (4th) 256
(Watters) at p. 274, the Board summarized the state of the
current law - the general rule and the exceptions - as
follows:
It is clear that, as a general rule, an
Employer at arbitration is restricted to the
grounds relied on at the time the discipline was
initially imposed. In the context of a dispute
over discharge, an Employer would normally be
limited to adducing evidence of misconduct
relevant to the grounds set out in the letter of
termination. The authorities referenced above
demonstrate, however, that there are exceptions
to this general rule. They recognize, inter
alia, that an Employer may rely on a new ground
to support the discharge if such ground was
discovered only after the dismissal and could
not, therefore, have been included in the grounds
as initially described. The arbitral
jurisprudence places an obligation on an
Employer, wishing to rely on new grounds, to
provide notice to the Union of same in a timely
fashion. The cases suggest that an Arbitrator
faced with a request such as the one made here,
must exercise his or her discretion based on all
16
of the circumstances of the case. One of the
most important considerations in exercising this
authority is the need to ensure that both parties
receive a fair hearing.
(Emphasis added)
In the case before me, the employer does not claim
reliance on any exception to the general principle in the
jurisprudence. Indeed, it is abundantly clear from the
evidence that the employer was very aware at the time the
grievor was discharged, that he had not provided the doctor’s
note for the June 25th absence until June 30th. For whatever
reason, the employer chose not to rely on that in the letter
of termination.
Employer counsel relied heavily on Mr. Golding’s
testimony to the effect that he based his decision on two
grounds (1) the exceeding of 10 days absence and (2) the
failure to provide doctor’s notes within 3 days. However,
there are several problems with this position. First, Mr.
Golding’s testimony with regard to doctor’s notes as a basis
for discharge was very general and vague. He did not testify
that the failure to provide a timely doctor’s note with regard
to the June 25th absence formed the basis for his decision.
Rather he made a general statement that “He did not provide
doctor’s notes within 3 days for his absences.” The evidence
indicates that the employer had in the past alleged that the
17
grievor had failed to provide a timely doctor’s notes. Those
concerns were addressed by the employer by a disciplinary
responses short of dismissal. Thus on May 3, 1999 the grievor
was suspended for 5 shifts for failure to provide a timely
note for his absence on April 16, 1999. The totality of the
evidence is only consistent with the conclusion that at the
time he decided to dismiss the grievor, Mr. Golding did so on
the basis of a review of the grievor’s past record. There is
no evidence that he was acting on a triggering or culminating
event.
The evidence supporting that conclusion is persuasive.
The Discharge letter was prepared by a sophisticated human
resources department. It is a detailed letter logically sett-
ing out, inter alia, what was expected from the grievor, and
the infractions attributed to him. It is significant that the
letter has no reference whatsoever to medical notes. The
issue of the late doctor’s note for the June 25th absence was
first raised by employer counsel during the arbitration, after
the union had raised the objection that there was no
triggering event. Moreover, Mr. Golding testified that his
decision was based on two concerns, the exceeding of the 10
day absence limit and the issue of late doctor’s notes. These
two reasons coincide with the response of counsel to the
18
union’s objection i.e. that there were 2 triggering events.
Yet, the letter of discharge very clearly sets out 3 reasons
for the decision, (namely, excessive absences, unauthorized
breaks and lateness) and late doctor’s notes is not one of
them. Rather, the reasons set out are incidents in the
grievor’s record, which had been addressed by the employer in
the past in some manner short of discharge.
Finally, even if I accept (and I do not) that in his own
mind, Mr. Golding considered the late doctor’s note for June
25 as a triggering event, the employer is not entitled to rely
on it because that reliance was not set out in the discharge
letter, nor was it communicated in any other manner to the
grievor or the union, until after the arbitration proceeding
had commenced. The union and the grievor, when deciding the
course of grieving and submitting to arbitration are entitled
to rely on the stated reasons for the discharge, as the only
reasons they have to defend against. Subject to the exception
in certain circumstances of “after-acquired grounds”, the
grievor and the union should not be placed in a situation
where at arbitration they are required to meet a different
case. That is the basic rationale for the principle in Re
Aerocide. Therefore, Mr. Golding was not entitled to withhold
19
the true reason for his decision, and then to spring it upon
the grievor and the union at arbitration.
For all of the foregoing reasons, I conclude that Mr.
Golding’s decision on July 5, 1999 was solely based on a
review of the grievor’s past record. In the absence of a
triggering event he was not entitled to base his decision on
the past record. In the result, the grievor’s discharge is
rescinded. The employer is directed to reinstate the grievor
forthwith, with full compensation and without loss of
seniority or benefits. I remain seized in the event the
parties cannot agree upon the proper implementation of this
decision.
The conclusion I have reached in this case is strongly
dictated by the evidence and the law. However, I do so with
some reluctance because the result may not necessarily be
equitable. The grievor stands accused of a number of
violations of the minutes. While some of these are still
subject to grievances, it appears that the employer has not
applied the full force of the minutes on the grievor. For
whatever reason, the employer has shown leniency in treating
him. Now, the employer is required to compensate and
reinstate the grievor, who even the union admits, has not been
20
an exemplary employee. Nevertheless the law is clear. The
employer has simply failed to meet the requirements of the law
to be entitled to discharge the grievor at the time it did, by
relying on his past record.
The hearings with regard to the remaining outstanding
grievances filed by the grievor will proceed on the dates
scheduled.
Dated this 17th day of May 2000 at Hamilton, Ontario
Nimal V. Dissanayake, Vice-Chair