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HomeMy WebLinkAbout1995-2260.Mather.96-07-29ONrAlw EMPLOY& DE LA COUf?ONNE CfXJWN EMPLOYEES DELmmwm3 GRIEVANCE COMMISSION DE SETTLEMENT RtiGLEMENT BOARD DES GRIEFS 780 DLJNDAS STREET WEST SUITE 2100, TORONTO ON M5G lZ8 180, RUE DUNDAS OUES’I; BUREAU 2100, TORONTO (ON) M5G lZ8 TELEPHONE/TgLkPHONE : (416) 328-1388 FACSIMILEfTkLiCOPIE : (416) 326-1396 GSB # 2260/95 OLBEU # OLB002/96 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before BETWEEN BEFORE: FOR THE GRIEVOR THE GRIEVANCE SETTLEMENT BOARD OLBEU (Mather) - and - The Crown in Right of Ontario (Liquor Control Board of Ontario) Grievor B. Kirkwood Employer Vice-Chairperson J. Noble Legal Counsel Ontario Liquor Boards Employees' Union FOR THE EMPLOYER M. Gage Counsel Liquor Control Board of Ontario HEARING June 11, 1996 Page 2 DECISION ON PRELIMINARY ISSUE ~ This matter concerns a discharge grievance. At the commencement of the hearing, employer’s counsel raised a preliminary issue contesting the board’s jurisdiction on the basis of issue estoppel. For the purposes of the preliminary issue, counsel summarized the facts. The facts as stated by employer counsel were: Mr. Mather was employed by the L.C.B.O. Durham Warehouse in 1984 and became a full-time employee in 1987. His position was a Warehouse Person 3. Employer’s counsel stated that after an incident occurring on December 16, 1995, the employer dismissed Mr. Mather from his employment for appearing at work in an inebriated state, thereby posing a safety hazard. Union’s counsel stated that the reason given, was, “incapacity to perform his duties because of intoxication”. The termination was effective December 27, 1995. Subsequent to the termination, Mr. Mather filed the grievance which is the subject matter of this grievance, and applied for unemployment benefits under the Unemployment Insurance Act. In the matter of the unemployment benefits, after investigation by an insurance agent, the insurance agent advised Mr. Mather in his decision of February 1996, that as he had determined that Mr. Mather had lost his job “by reason of his own conduct”, Mr. Mather was not entitled to unemployment benefits pursuant to section 28( 1) of the Unemployment’ Insurance Act. On March 18, 1996, the grievor appealed the decision of the insurance agent to the board of referees. That hearing, which was scheduled for April 12, 1996, was adjourned to April 24, 1996, at the request of Mr. Mather to allow him to obtain representation. At the hearing, Mr. Mather was represented by Don McDermott, a business representative with the union. Although the employer had been given notice of the hearing, no one appeared for the employer. The insurance agent provided written submissions, but did not attend. Mr. Mather attended and gave evidence, and Mr. McDermott argued on his behalf. In a unanimous decision of the board of referees dated April 24, 1996, the board of referees concluded that Mr. Mather had been terminated as a result of his own misconduct, and upheld the denial of benefits. With this background, employer’s counsel argued that this Board had no jurisdiction to determine the issue of ‘cause’ on the basis of issue estoppel as that issue has been determined by a decision of the board of referees under the Unemployment Insurance Act. Employer’s counsel acknowledged however, that this Board had the jurisdiction to determine whether a lesser penalty should be substituted. Page 3 Employer’s counsel relied on the Ontario Court of Appeal decision in Rasanen v. Rosemount Instrument, [1994] 17 O.R. (3d) 267 (C.A.) (hereinafter “Rasanen”) in support of its position. Employer’s counsel referred to two examples where the principles set out in Rasanen were applied in other forums, the cases of the Alberta Court of Appeal decision in Wong v. “Shell Canada, 15 C.C.E.L. (2d) 182 (Al& C.A.) and the Ontario Court of Appeal decision of Machado v. Pratt & Whitney 12 C.C.E.L. (2d) 132 (MacDonald). Employer’s counsel submitted that once the three criteria as set out in Rasanen for the foundation of issue estoppel were met, this Board was precluded from determining the issue of cause. The three elements are: 1) the question before both bodies must be the same question, 2) the decision which is said to create the estoppel must be final, and 3) the two forums must involve the same parties or privies. On the first issue, whether the Board of Referee answered the same question that is in issue before this Board, Employer,‘s counsel submitted that the substance of the issue must be reviewed, for the court in Rasanen held, that notwithstanding different linguistic differences in outlining the issue, the question can be the same. In Rasanen, the question facing the referee was whether the employee had been offered reasonable alternate employment. The court found that the issue involved was the same as in the judicial proceeding, whether there had been a breach of the employment relationship, or whether the employer owed compensation to the employee. Employer’s counsel submitted that in the case before this Board, the issue that the board of referees had to answer was whether the claimant was terminated by reason of his own misconduct, which is the same question as whether the employer had cause to terminate the grievor, which is the issue before this Board. Secondly, turning to whether the decision is final, employer’s counsel argued that the Unemployment Insurance Act provides the opportunity to appeal to an umpire and Mr. Mather did not avail himself of that opportunity. Employer’s counsel argued that this case was analogous to the Rasanen decision, in which the court held that the decision became final when Rasanen had the opportunity to apply for judicial review, but did not apply. Thirdly, as to whether the parties are the same, the employer’s counsel argued that the parties are the same, or at least privy. Employer’s counsel argued that again, this case is similar to the Rasanen case. Employer’s counsel submitted in this proceeding, the parties are the grievor, the union, which is acting on the grievor’s behalf and the employer, and before the board of referees, the parties were the employee and the commission, but the employer was privy to that proceeding. In Rasanen, the parties at the Employment Standards Act hearing were, the employer and the Ministry of Labour, which was found to be acting on behalf of the employee and Page 4 the insurance agent, and in the court proceeding, the parties were the employee and the employer. In Rasanen, the employee was considered privy as the employee’s ciaim before the board of referees, was the genesis of the proceeding, he participated in the proceeding and attended before the board of referees and gave evidence, had the opportunity to hear the others, which would have included the employer, had the employer chosen to attend and give evidence. Employer’s counsel submitted that in the same way, the employer, who was not a party to the proceeding before the board of referees was a privy to that proceeding, and a party to the proceeding before the Grievance Settlement Board. Therefore the criteria of party or privy was met. In conclusion, employer’s counsel argued that the issue as to whether the employer had cause to terminate the grievor had been determined by another tribunal which had jurisdiction to determine the issue. It was a final decision, and was in a forum in which all the parties to this proceeding had had an opportunity to participate. Therefore, employer’s counsel argued that the three criteria set out in Rasanen were met and this Board had no jurisdiction to determine the issue of cause, although it did have the jurisdiction to determine whether in all the circumstances the penalty should be reduced and another penalty substituted. Union’s counsel also accepted Rasanen as setting the criteria for the application of issue estoppel, but took the position that the facts in this case were different and the elements required for a determination of issue estoppel were not met. Therefore Union’s counsel argued that this Board had jurisdiction to determine the issue of cause. Union’s counsel agreed that the questions that are to be answered in both proceedings must be the same and fundamental to each decision. However, union’s counsel submitted that decision makers must be rigorous in their analysis of the issues. Union’s counsel argued that if a fastidious approach is used, the questions are not the same. She submitted that the question the board of referees had to answer, was, whether Mr. Mather should be disentitled from receiving benefits due to his own misconduct. Union’s counsel submitted that this is not the question before this Board. She submitted that although this Board may find that the grievor’s conduct was not perfectly acceptable and may warrant some discipline, the issue before this Board, is whether the grievor ought to be reinstated taking into all the circumstances of the case including, whether his record of employment supports discharge, whether his conduct warrants discharge, does the grievor have some struggle with alcohol and whether it seems likely that the grievor will engage in similar conduct. Union’s counsel argued that the statutory base upon which the court found that the decision of the referee under the Employment Standards Act was different from the statutory base upon which the decision is made under the Unemployment Insurance Act. In Page 5 Rasanen, section W(7) currently s. 69(7) of the Employment Standards Act states that the decision is final and binding. On the other hand, section 86 of the Unemployment Insurance Act has no finality and the board of referees can change its decision at any time with the presentation of new evidence. Union’s counsel argued that in Rasanen, although the court found that the parties were the same or that they were considered privy in both proceedings, this case is distinguishable. The court in Rasanen determined that the employer and the employee were at least privies by looking at the nature of the dispute and determining that it was a dispute between the employer and the employee, for if the employer had not met the statutory requirements, the employer had to make the payments. In the case before this Board, there is no overlap. The parties to this proceeding are the union and the employer, the L.C.B.O. The parties to the proceeding before the board of referees are the employee (claimant/grievor) and the commission. The employer was not a party and was not liable in both forums. In support of the Union’s position, union’s counsel relied on the recent case of OPSEU (Leeder) v. The Crown in Right of Ontario (Ministry of Health) G.S.B. # 2498193, 0164/94,0296/94 (Finley) (hereinafter referred to as “Leeder’?, a unanimous decision of a three panel board of the Grievance Settlement Board, which, she submitted, examined the same issue as before this Board. She submitted that in Leeder, many of the arguments were the same, although the interests of the parties were reversed. Union’s counsel argued that although the court in Rasanen held that a decision of an administrative tribunal could bind on the court, the employer was seeking to have a decision of one administrative tribunal bind another administrative tribunal. Union’s counsel argued that the application of res judicata has been qualified in labour relations, and so too, should the application of issue estoppel. Union’s counsel submitted that as in the decision of Re Saskatchewan Wheat Pool and Transportation Union 22 L.A.C. (4th) 129 (Solomatenko), boards of arbitration have qualified the interpretation and application of res judicata such that where the former decision was clearly or manifestly wrong, it should not be followed, and where the subsequent decision departs from the former decision, the basis of the difference should be clearly stated. In that case the board did not apply res judicata, although it recognized that the main issue raised was the same one faced by an earlier board in a different grievance, on the basis that there was relevant evidence that was before the second board that did not appear to be part of the board’s deliberations in the earlier award. Union’s counsel argued that in the same way, it intended to adduce considerably more and different evidence than that which had been adduced at the hearing under the Unemployment Insurance Act. Page 6 Decision As the basis of this decision lies upon the application of the principles set out Rasanen,*it is useful to provide a brief summary of the case. In Rasanen, the Rasanen was employed an engineer who was employed as an Ontario Branch Manager and subsequently became Manager of Nuclear/Aerospace, Marketing and Sales in Toronto. As a result of a corporate reorganisation, his position was to be eliminated. Rasanen was offered the position of marketing manager with the same salary and bonus, responsibility for the same number of employees and he would continue to report to the President. However, he would have to move to Calgary. As Rasanen had previously declined an offer of this position on a previous occasion, the employer also offered him the position of a major accounts manager, with the same salary and potential for a larger bonus, but he would have no employees directly reporting to him and he would no longer report to the President. He would not be required to move. Rasanen rejected both offers and filed a claim for termination pay under th.e Employment Standards Act in one forum, and sued for damages on the basis of constructive dismissal before the courts. The Employment Standards Act exempts the employer from the obligation to pay termination pay, if the employee is laid off after refusing “reasonable alternate work’. After investigation of the complaint by an employment standards officer, the officer concluded that no money was owing, because the second offer which Rasanen had refused, was an offer of reasonable alternate employment, and therefore, it was deemed that Rasanen had given notice to the employer that he would be leaving the company. Rasanen requested, as he was entitled, to a review by another officer, and that officer found that neither offer constituted reasonable alternate employment and it could not be construed that Rasanen voluntarily left the company. That officer ordered the employer to pay termination pay and the employer appealed that decision to a referee. The referee then considered and applied the approach taken in wrongful dismissal jurisprudence, to determine if there was a fundamental breach of the employment relationship. Among the referee’s conclusions, the referee concluded that the choice of the Toronto position constituted a reasonable alternate employment offer, which Rasanen was entitled to decline, but he could not also receive termination pay. The referee vacated the order to pay. Rasanen did not apply for judicial review of the referee’s decision. Three years later when the constructive dismissal suit came to trial, the trial judge held that the doctrine of issue estoppel applied, and in the alternative, if it did not, there was no fundamental breach of the employment relationship as reasonable alternate employment had been offered, and he dismissed the claim for constructive dismissal. Rasanen appealed the decision to Page 7 the Court of Appeal. The Court of Appeal upheld the decision of the trial judge and held that issue estoppel did apply and it dismissed the appeal with costs. The decision of Abella J. A. for the Court of Appeal began her analysis with a statement of the purpose of issue estoppel, then continued with a statement of the prerequisites of issue estoppel and its application to the case before the Court. Abella J.A. states at p. 172: At its simplest, issue estoppel is intended to preclude the relitigation of issues that have been determined in a prior proceeding. As stated by Mildleton J.A. in Mclntosh v. Parent (1924), 55 O.L.R. 552 (Q.B.) at p. . Any right, question, or fact distinctly put in issue and directly determined by a court of competent jurisdiction as a ground of recovery, or as an answer to a claim set up, cannot be re-tried in a subsequent suit between the same parties, or their privies, though for a different cause of action. The right, question, or fact, once determined, must as between them, be taken to be conclusively established... It arises as a doctrinal response to the “twin principles... that there should lx an end to litigation and . . . that the same party shall not be harassed twice for the same cause.” (Carl-Zeiss-Stifiung v. Rayner & Keeler Ltd. (No. Z), [1967] 1 A.C. 853 (H.L.) at p. 946...As a species of estoppel, it is distinguishable from, but clearly conceptually related to “cause of action estoppel” or “res judicata, which precludes the bringing of an action when the same cause of action has already been determined by a court of competent jurisdiction. (Thoduy v. Thoduy, [1964] 1 All E.R. 341 (C.A. ) at p. 352). The proceedings before us involve issue estoppel, Lord Guest summarized the requirements of issue estoppel as follows in Carl Zeiss, supra, at p. 935: 1) that the same question has been decided; 2) that the judicial decision which is said to create the estoppel was final; and, 3) that the parties to the judicial decision or their privies were the same persons as the parties to the proceedings in which the estoppel is raised or their privies. The proper inquiry in deciding whether the requirements have been met is whether the question to be decided in these proceedings is the same as was contested in the earlier proceedings and was, moreover, so fundamental to the decision that it could not stand without the determination of that question.... The second requirement is that there be a prior, final, judicial decision.... The remaining aspect of this second requirement is that the decision be final and conclusive of the relevant issues.... Page 8 . . . This leads to an examination of whether the third requirement of issue estoppel was met in this case, namely, whether the same parties or their privies were common to both proceedings. The court held that notwithstanding the linguistic differences in articulating the issues in the two forums, the fundamental issue in both forums was the same. The common issue was “was there any entitlement by the employee to compensation from the employer arising from the termination of his employment?” In both cases, the entitlement to termination pay was dependent upon whether the employer violated a duty towards the employee, giving rise to liability and compensation. A determination that the employer offered reasonable alternative employment, answered the question before the referee, and was critical to the issue faced by the court in the wrongful dismissal action. Having determined that the employer provided reasonable alternate employment meant that the employer did not fundamentally breach its contract of employment with the employee. It answered conclusively the question which the court faced as to whether the employee was entitled to compensation from the employer. Abella J.A. dismissed the company’s argument that the Employment Standards Act forum was not sufficiently judicial to count to preclude issue estoppel. Abella J.A. recognized that administrative tribunals are an alternative method of resolving issues between parties, and are credible bodies. They are bound to follow the principles of natural justice and to ensure that the parties know the case they have to meet. With respect to the finality of the decision Abella J.A. held that the appellant could have applied for judicial review and did not, and therefore the decision of the referee was final. Abella J.A. held that although technically Rasanen was not a party to the proceeding in the proceedings before the referee, as the Ministry of Labour was arguing on his behalf, Rasanen was a privy, as it was his claim that was the geneses of the proceedings, and he had notice of every step of the proceedings. He participated in both the Employment Standards Act proceedings and the court proceedings. The Ministry of Labour who appeared before the referee as a party, shared a community of interest with Rasanen in attempting to uphold the decision of the Employment Standards officer. Finally, Abella J.A. responded to an argument that the Employment Standards Act precluded the operation of issue estoppel as that Act stated that “no civil remedy of an employee against his or her employer is suspended or affected by this Act” and held that an employee may have a choice of forums, but that did not mean that the employee is immune from the application of issue estoppel, and is not bound by a final decision of either forum on the same Page 9 issue. The Grievance Settlement Board recently considered the application of issue estoppel in the case of Leeder. The panel applied the criteria established in Rasanen, but found that the criteria was not established and therefore issue estoppel did not apply. In Leeder, the grievor was discharged, and immediately filed a grievance and a claim for unemployment benefits under the Unemployment Insurance Act. He was disqualified from receiving unemployment insurance benefits at the first level, where it was found that he lost his job by reason of his own misconduct. He appealed to the board of referees. The grievor, his union representative, and a representative of the employer attended. Neither the grievor nor the employer had counsel. Information as to the incident leading to the dismissal was presented by the claimant and comment was added by the employer, but no witnesses were presented, and no evidence was called. The board of referees applied the standard of “beyond a reasonable doubt” and found that misconduct was not proven beyond a reasonable doubt, and allowed the appeal. The employer did not appeal the decision. In Leeder, the union argued at the Grievance Settlement Board hearing on the discharge that the employer was estopped from taking a position different from the finding of the board of referees on the basis that the issue was identical in the two forums and the decision in the board of referees was final. The arguments made were similar to those made at this hearing. In Leeder the employer had argued that the factual issue of whether the employee engaged in wilful conduct was the same issue to be determined by the board of referees and the Grievance Settlement Board. On the other hand, the union had argued that the issue before the board of referees was whether the employee was entitled to benefits and what kind of conduct would disentitle him, which was different from the issue before the Grievance Settlement Board, which was whether the dismissal should be upheld, mitigated or revoked. In Leeder, the panel of the Grievance Settlement Board found that the first criteria set out in Rasenen was not met as it held that the allegation of misconduct which was before the board of referees was not the fundamental issue before the Grievance Settlement Board. The misconduct relied upon by the board of referees related only to an allegation of failing to chart, which was only one basis for the dismissal. The Grievance Settlement Board also had to consider the more significant allegations of sleeping on duty and failing to carry out charge nurse responsibilities in determining whether the dismissal should be upheld, mitigated or revoked. Furthermore, reinstatement was not an option that was available under the Unemployment Insurance Act. With respect to the second issue, the finality of the decision, the employer made the same argument as submitted to this Board that as the employer had not presented evidence before Page 10 the board of referees it could do so again and therefore the decision of the board of referees was not final. The Board did not decide this issue as it held that the issue to be decided by the panel of the Grievance Settlement Board had not been dealt with and therefore there had been no finality to the issue. Thirdly, similar positions were taken by the parties on the issue of ‘party’ and ‘privy’ as submitted to this Board. Employer’s counsel argued that the parties were the same, and union’s counsel argued that they were not. Union’s counsel argued that the role of the employer was only to provide the reasons for the dismissal, and to ensure that the hearing was run properly. The Board found that the parties to the Grievance Settlement Board hearing were not a privy to the action between the employer and the Unemployment Insurance Commission in that the Board determined that to be privy to an action, requires one to “have an interest in the outcome.” The Board found that the employer’s situation and position was not affected in any way by the decision of this board of referees and concluded that the employer did not have an interest in the outcome of the decision of the board of referees and therefore was neither a party nor a privy to that proceeding. In addition, although obiter, the panel also pointed out that if unemployment insurance disqualification appeals became the forum for deciding the issue of dismissal, it would have the effect of having the dismissal heard in a forum where the parties had not agreed to have the issue determined, and in a forum, where the real issue is not between the employee and the employer, but the employee and the unemployment insurance commission. The employee in Leeder was in a different position from Rasanen, who had a choice of forums for the same remedy. Leeder had no alternative but to go before the board of referees to have his disqualification for benefits overturned, and the forum to have his dismissal overturned was the Grievance Settlement Board, as provided in the Crown Employees Collective Bargaining Act. The Board also pointed out that the parties did not consider the board of referees as providing an optional forum for the determination of issue of dismissal. The panel was also concerned with the disparity in the quality of the procedures, that sufficient safeguards were not present to test the evidence in which the issue was significant and effected the employee’s livelihood and career. Although the Crown Employees Collective Bargaining Act has provided jurisdiction to the Grievance Settlement Board to determine whether the employee was discharged for cause, as in Rasanen or Wong (supra) the legislation does not preclude the application of issue estoppel. Therefore, the principles of issue estoppel, which are principles of law, are not precluded from application in this forum. As set out in the Rasanen case, and as has been accepted by the parties, issue estoppel requires three criteria be met: Page 11 1. Was the question the same as was contested in the earlier proceedings and was it so fundamental to the decision that it could not stand without the determination of that question? 2. Was there a prior final decision? and 3. Were the parties or their privies common to both proceedings? In this case, the issue as framed by the board of referees in its decision dated April 24, 1996 was: The issue involved is whether the claimant should be paid regular benefits from January 22, 1996 as he lost his job with the L.C.B.O. on December 16, 1995 due to misconduct. (Section 28 and 30.1 of the Unemployment Insurance Act and 59.1( 1) of its Regulations). The board of referees concluded at page 3 of their decision: Section 28( 1) states that a claimant is disqualified from receiving benefits if he lost his employment because of his own misconduct. Black’s Law Dictionary defines “misconduct”as “employee behaviour that displays wilful or wanton disregard of the employer’s interest, and that deliberately violates and disregards certain standards which the employer has the right to expect.” The Board finds that working in an impai red state disregards the employer’s interest and standards. The claimant’s job consisted of operating machinery, and the employer expressed concerns about the serious health and safety threat resulting from the claimant’s condition. The Board finds these concerns to be justified. The Board finds that it was the claimant’s responsibility to knew if he could consume alcohol while taking the prescribed painkiller medication. The claimant has stated that his perception was that he was not impaired, and was functioning normally. The Board finds that the combination of lack of sleep, alcohol consumption, coupled with the painkiller medication and the lack of food, would leave the claimant functioning in less than optimum condition -- in fact, in an impaired state. In that case, the Board finds the employer had reasonable grounds to dismiss him. Page 12 The Board finds the claimant did not exercise sound judgement (sic) in arriving at work after insufficient sleep, and the subsequently consuming pain killers and alcohol on an empty stomach. The Board finds that this would obviously leave the claimant in less than optimum condition to operate machinery, in fact, in an impaired state. The Board finds this is in . violation of the employer’s interests. It is a reasonable expectation that the employee be unimpaired while working. In CUB 27175 Judge Flanigan stated: ‘There was evidence that the Appellant appeared for work in an intoxicated condition, there was evidence that he had been warned by the Employer that he would be discharged if this happened again and there was evidence on behalf of the Appellant denying such allegations. The Board exercised its discretion in the proper manner and preferring the evidence of the Employer over the Appellant. ” Finally, the Board finds the claimant’s actions and behaviour were other than what was expected and required by the employer, and have been determined to constitute misconduct. The Board finds the employer had reasonable grounds to dismiss the claimant, and the misconduct is the reason for the dismissal. Regarding the rationale behind the Unemployment Insurance Act, the Umpired ruled in CUP 11450, that is: “To provide aid for Canadians who happen to find themselves unemployed through no fault or act of their own. Insurance against risk of involuntary and blameless loss of employment income.” The Board finds that the claimant lost his employment because of his own misconduct within the meaning of the Unemployment Insurance Act, and we dismiss the appeal. DECISION It is the UNANIMOUS decision of the Board that the appeal is DISMISSED. 1. Was the question the same as was contested in the earlier proceedings and was it so fundamental to the decision that it could not stand without the determination of that question? This Board finds that as in the Leeder case, the issues before the two forums are different. The issue before the unemployment insurance commission was, whether the employee was entitled to benefits from the commission. The liability of the employer was not in issue. This Page 13 is in contrast to the issue before this Board as to whether the dismissal is to be upheld, mitigated or revoked, which determination directly affects the liability of the employer. Although the board of referees in determining whether the employee engaged in wilful misconduct, made a determination that the employer had reasonable cause to discharge the employee, I do not find that such a finding is conclusive of the issue before this Board. The board of referees was not being asked whether the employer had cause to discharge the grievor, but whether the employee engaged in wilful conduct. Therefore whether the employer had reasonable cause to discharge the employee, may be a significant factor in the decision of the board of referees, but it is not the issue that it had to determine. Pursuant to statute, this Board is directed to the issue of cause and to determine whether the penalty was excessive in the circumstances. This Board in answering the question, whether the employer is liable, has to determine the nature of the employee’s conduct and characterize that conduct, and must. determine, whether the conduct provided cause for the employer to discharge the employee. In the context of grievance arbitration, the determination of cause is much greater than a determination as to whether the employee engaged in wilful misconduct. In the context of a grievance proceeding, a finding of wilful conduct may give the employer cause to discipline an employee, which would lead to the employee’s reinstatement, but not cause to discharge the employee. Therefore, although a determination by this Board whether the employer had cause to discharge the employee, may require a finding of fact as to whether there was wilful conduct on the part of the employee, a determination of that issue conclusively answers the question before the board of referees, whether the employee was entitled to benefits, but it does not conclusively answer the question before this Board as to whether the dismissal shall be upheld, mitigated or revoked. The Leeder case is a useful example which illustrates the narrowness of the issue before the board of referees, as opposed to the scope of the issue before the Grievance Settlement Board. In Leeder, as in the case before us, the issue before the board of referees was whether the employee engaged in wilful conduct, which provided cause for the employee’s dismissal. The panel found that although the commission made a finding on one of the allegations, the failure to report, which was sufficient for the commission’s purposes, the Grievance’settlement Board had to focus not merely on the issue of reporting, but on the more significant issues of whether the employee was sleeping on the job, and the responsibilities of a charge nurse. Therefore, a finding of wilful conduct was sufficient to answer conclusively the issue for the board of referees under the Unemployment Standards Act, but not to determine whether there was cause to discharge the grievor, and whether the dismissal should be upheld, mitigated or revoked as must be considered under the Crown Employee’s Collective Bargaining Act and the Labour Page 14 Relations Act as incorporated. Although not determinative as to the sameness of the issues in question, it is also interesting to note that in Rasanen the referee in the Employment Standards Act proceedings had canvassed the relevant case law on wrongful dismissal, which was the case law that was relevant in the court proceedings. That is a reflection of the sameness of the issues in the two proceedings - the extent of the employer’s liability for termination pay. In this case, although the relevant persons had notice, there was no evidence that any of the jurisprudence that would be relevant to a discharge grievance was applied in the board of referees’ hearing. 2. Was there a prior final decision? On the issue of finality of the decision, I find that there are two bases, each of which is sufficient to find that the issue has not been decided with finality. First, as in Leeder, the issue that this Board is faced with has not been dealt with conclusively by the board of referees. Second, the statutory basis for the decision under the Employment Standards Act upon which Rasanen rests is quite different from the statutory basis under the Unemployment Insurance Act, and leaves open the question of finality. Section x)(7) of the Employment Standards Act, now s. 68(7) states: 68(7) A decision of the referee under this section is final and binding upon the parties thereto and such other parties as the referee may specify. R.S. 0. 1980, c. 137, s. 50 (6-7). In contrast, there is no finality apparent in s. 86 of the Unemployment Insurance Act. It does not allow a reopening of the issue with the introduction of new evidence such as found in the Unemployment Insurance Act. s. 86 which states: s.86 The commission, a board of referees or the umpire may in respect of any decision given in any particular claim for benefit rescind or amend the decision on the presentation of new facts or on being satisfied that the decision was given without the knowledge of, or was based on a mistake as to, some material fact. It was clear under the Employment Standards Act that the decision of the referee was to be final. However, under the Unemployment Insurance Act, there is no similar reference to finality of the decision. On the other hand, it contemplates that an issue may be revisited upon the introduction of new evidence. That would lead me to conclude that as much as Page 15 the union is suggesting that it is intending to introduce new evidence that was not introduced at the hearing before the board of referees, it is not, on the basis of the face of s. 86 of the Unemployment Insurance Act precluded from attempting to introduce new and further evidence before the board of referees. Therefore the decision before the board of referees cannot be considered final. Employer’s counsel claimed that the grievor did not avail himself of an appeal to the umpire and she understood that the time limits had passed. However, this issue was not fully explored by counsel and it is not necessary to make a final determination on the issue of finality on this basis. However, I note that the decision of the board of referees as presented to this Board is dated April 26, 1996 and section 82 of the Unemployment Insurance Act states: s.82 An appeal from a decision of a board of referees must be brought within sixty days after (a) the day the decision is communicated to the claimant, or (b) the earlier of the day that the decision is communicated to the claimant and the day that the decision is communicated to the employer, if the decision is communicated to both the claimant and the employer, or such longer period as the umpire may in any case for special reasons allow. On the basis of section 82, in this case, the period in which the employee is entitled to appeal the decision of the board or referees had not expired at the date of the hearing. If an argument was to be made on the basis of Rasanen, it would be at most the umpire’s decision on the appeal that is final, unless the decision is judicially reviewed under the Federal Court Act, pursuant to section 84 of the Unemployment Insurance Act. On the face of the statute and the decision presented it appears that as of the date of this hearing the finality of the decision under the Unemployment Insurance Act has not been reached, even if it were the case that the decision of the board of referees was final. 3. Were the parties or their privies common to both proceedings? The third issue is whether the participants are parties or privies in both proceedings. In Rasanen, the interests of the parties or privies were the same in the action under the Employment Standards Act and under the common law of wrongful dismissal. In Rasanen, the employer was a party in both proceedings. However, although the employee was not a party in Page 16 the proceedings in both forums, it was held that he was a privy in the proceedings before the Employment Standards referee, and he was a party in the judicial proceedings. The role of the employee met the criteria for privy, as the genesis and the outcome of both proceedings were based upon the viability of the employee’s claim. As explained by Abella J.A., although the employee was not a party, he had a community of interest with the Ministry of Labour, who was a party and shared a community of interests in the decision. The employee was seeking damages for the loss of his employment and the employee had a vital interest in each proceeding as the outcome of each proceeding determined the employer’s liability to the employee for his loss of job. In this case, at the unemployment insurance proceeding, it was not liability of the employer that was at issue, but the liability of the commission to pay benefits to the employee, while before the Grievance Settlement Board, it is the liability of the employer that is at issue, whether to pay damages for dismissing the employee, and/or reinstate the employee to his position. The difference in the issues is reflected in the roles of the participants in the proceedings. In this case, in the proceeding before the board of referees, the parties were the employee and the commission, and before this Board, the parties are the employer and the union. As in Rasanen, the employee in this action, has a vital interest in the outcome of both proceedings. In both forums, the genesis of the claims is directly tied to the employee. Although the party before the Grievance Settlement Board is the union and not the grievor, the processing of the claim and the success of the claim starts and rests with the participation of the employee. Therefore, while the employee is a party to the proceeding before the board of referees, and is not a party to the grievance before the Grievance Settlement Board, the employee is a privy to the grievance proceeding before the Grievance Settlement Board and shares that community of interest in both proceedings. Accordingly the employee meets the criteria set out in Rasanen. However, the characterization of the employer’s role is different. The employer is a party to the proceeding before the Grievance Settlement Board, but was not a party in the board of referees’ proceeding. Therefore the question must be asked whether the employer was a privy at the unemployment insurance proceedings. At the unemployment insurance proceeding, the employer while getting notice of the proceeding, may choose to participate in the proceedings before the board of referees, or it can choose not to participate, and its decision does not affect its liability. As Vice-Chair Finley points out in Leeder, employers may often choose not to act so as to prevent the employee from receiving benefits to which both had contributed. It is not an issue of losing the status of privy by a decision not to participate, as suggested by union counsel, but it is rather that the status of a party or a privy is a reflection of the interest that the person has in the outcome, as mentioned by Vice- Page 17 Chair Finley. If the employer is not to be held liable for the payment of benefits, the employer may not have the same ‘interest’ or focus in protecting its position in the same manner or to the same degree, if it were to be held liable. If the employer chooses not to participate, it leaves the burden on the employee to prove that he or she did not participate in wilful misconduct that caused the employee to lose his or her job. Even if the employer is a witness in the board of referees hearing, the employer is responding to questions, and is not in the position of having to put forward its best position to defend a claim of liability. This is in contrast to the dismissal grievance, in which not only is the employer a named party, but the determination of the outcome of the hearing depends heavily on the participation of the employer, as the employer has the burden of proof to demonstrate that it had cause to not merely discipline the employee, but to dismiss the employee for the employee’s conduct. Therefore the employer’s success in having the grievance dismissed depends very much on the participation of the employer. This situation is different from the role of the parties and privies in the Rasanen case. In Rasanen, the interest of the employer in both proceedings was the same. In both proceedings, the liability of the employer was in issue, whether it met the statutory obligation with respect to the termination pay or severance pay under the Employment Standards Act, and whether it was liable to pay damages under common law in the wrongful dismissal action. It was merely the quantum of damages that was in issue once the liability had been established. By contrast, a determination of the liability in the proceeding before the board of referees does not determine the liability of the employer in the proceedings before the Grievance Settlement Board, it determines the liability of the commission. In the words of Vice-Chair Finley, the employer does not have an “interest in the outcome” and therefore cannot be considered a privy to the unemployment insurance proceedings. In summary, as the employer is not a party and is not privy in both proceedings, this case does not meet the third criteria set out in Rasanen. The purpose of issue estoppel is to prevent the relitigation of the same issue between the same party or privy. In order to ensure fairness and justice, the subsequent tribunal or court must be assured that it is the very same issue that was determined in a prior proceeding, as the net effect would be to accept the issue as if it were a proven fact. The necessity of meeting the requirements of the three criteria, is to ensure that the issues are on all fours in each proceedings. In this case, although the issues in each forum may share similarities, they are not the same issue and have different focusses, and therefore cannot be a final determination of the issue, and the interests of the participants are not the same. Therefore I find that issue estoppel is not established in this instance. This hearing Page 18 shall continue on its merits on a date to be fixed by the registrar. Dated at North York, this 29th day of July, 1996.