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HomeMy WebLinkAbout2012-0551.Hall.13-03-18 DecisionCrown Employees Grievance Settlement Board Suite 600 180 Dundas St. West Toronto, Ontario M5G 1Z8 Tel. (416) 326-1388 Fax (416) 326-1396 Commission de règlement des griefs des employés de la Couronne Bureau 600 180, rue Dundas Ouest Toronto (Ontario) M5G 1Z8 Tél. : (416) 326-1388 Téléc. : (416) 326-1396 GSB#2012-0551 UNION#2012-0378-0011 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN Ontario Public Service Employees Union (Hall) Union - and - The Crown in Right of Ontario (Liquor Control Board of Ontario) Employer BEFORE Reva Devins Vice-Chair FOR THE UNION Val Patrick Ontario Public Service Employees Union Grievance Officer FOR THE EMPLOYER Adrienne Couto Liquor Control Board of Ontario Counsel HEARING March 14, 2013. - 2 - Decision [1] The Grievor, Mathew Hall, has grieved his discharge from the LCBO for alleged theft of product from the warehouse. At his Stage 3 grievance meeting, management refused to provide the Union with a copy of the videotape that it alleged supported its decision to dismiss the Grievor. The Union submits that in so doing they have failed to accord Mr. Hall a substantive right conferred by Article 27.2 (c) (i) of the Collective Agreement and it seeks to have the discipline declared void ab initio. In the alternative, it seeks an order excluding the videotape at this arbitration. [2] The LCBO maintains that Article 27.2 (c) (i) only requires it to provide the Union with particulars, that is, the material facts that it relies upon, but that it is not required to disclose the evidence that it intends to rely on until after the matter has been referred to arbitration. Facts [3] The Grievor was a full time warehouse worker who has been employed with the LCBO since 2000. The Employer alleges that Mr. Hall removed product from the conveyor line, hid it and then removed it from LCBO premises. Mr. Hall was initially suspended with pay and accused by management of theft. The Grievor denied the allegations and met with management and a representative from the Union on December 13, 2011 to discuss the allegations. At their meeting, management advised that they had a videotape recording showing the Grievor engaged in wrongdoing. When asked, management refused to provide the Union with a copy of the tape. [4] The Employer subsequently discharged the Grievor and sent him a termination letter, dated December 28, 2011 in which it set out the reasons for dismissal as follows: - 3 - As you are aware, and as set out in our letter to you dated December 12, 2011, you were relieved from duty pending an investigation into your alleged theft of product from the Durham Retail Service Center. Specifically, it was alleged that on December 9, 2011, you removed LCBO product from the warehouse. In particular, it was alleged that you concealed three bottles of Remy Martin XO Cognac [LCBO #583468] and removed them from the warehouse. At our meeting with you and your union representative on December 13, 2011, you denied removing any LCBO (sic) and you stated you are completely unaware of the whereabouts of the missing product. Mr. Hall, it is our position that on December 9, 2011, while working on the MPL you removed one case of Remy Martin XO Cognac from the accumulation lanes and placed it under the conveyor. You later went back to the case and hid it from view behind several boxes of twine. During the course of the day you ultimately removed 3 bottles from the case, concealed them in the waistband of your pants, and then exited the building where you deposited the product in your vehicle. We advised you that we had located 3 of the bottles, which were hidden inside an empty twine box and it is our assumption that you were planning on removing those bottles while at work on Saturday December 10, 2011. We believe that you have not been truthful in your statements and further note that you could offer no good reason as to why you removed the case from the conveyor in the first place. When asked what it was you were storing down the front of your pants, you responded to this by suggesting that you were probably storing the Tupperware container from your lunch there, an explanation that does not alleviate our suspicions. Such actions are a serious breach of fundamental trust that is placed in you and to the ongoing employment relationship in a retail and warehouse setting. In light of all of the above, we find that the employment relationship is irreparably damaged. As a result, your employment is terminated effective immediately for just cause. [5] The Grievor grieved his discharge and a Stage 3 meeting with the Grievor, a representative from the Union and management was convened on March 15, 2012. The Union again requested disclosure of the videotape, management refused and the meeting ended. This matter was subsequently referred to arbitration and the Union contacted counsel for the LCBO on February 28, 2013 to request a copy of the videotape. On March 7, counsel couriered the tape to the Union. - 4 - Submissions [6] The Union submits that the purpose of a Stage 3 meeting is to permit a full and frank discussion between the parties to see if they can resolve their differences. It was further submitted that it is intended as an opportunity to test the allegations at issue. By refusing to provide the videotape to the Union and the Grievor, the Employer prevented them from offering a satisfactory explanation that could have resolved the dispute prior to arbitration. In the Union’s submission, withholding key information during the early stages of the grievance procedure hopelessly prejudiced the Grievor, frustrated the goals of the early grievance procedure and resulted in the loss of a meaningful Stage 3 meeting with management. [7] The Union submits that the obligation to provide particulars must be considered in the context of this case, a discharge grievance, which demands a high level of protection for the employee who has had their employment terminated. Although the Board should consider each case on its own merits, the Union maintained that key evidence that the Employer relied on in making their decision to discharge an employee should be disclosed as part of the obligation under Article 27.2 (c) (i). This would include documents, witness statements and electronic evidence, such as videotape. Moreover, it was submitted that a summary of the evidence was not sufficient to meet the Employer’s obligation. It was the Union’s position that the videotape is a material fact that must be disclosed, and that the Union and Grievor have a right to view it and to test its’ reliability. [8] The Union argued that the rights conferred under Article 27.2 (c) (i) are substantive in nature and that non-compliance renders the discharge void ab initio. In the alternative, it - 5 - maintains that the Employer should be precluded from tendering the videotape at arbitration. [9] The Union relied on the following cases in support of its submissions: Re Hickeson-Langs Supply Co. and Teamsters Union, Local 419 (1985), 19 L.A.C. (3d) 379 (Burkett); Ontario (Ministry of Labour) v. OPSEU (Deprophetis), (2010), 197 L.A.C. (4th) 351 (Dissanayake); Re Cambridge Towel Corp. and Amalgamated Clothing & Textile Workers Union (1987), 29 L.A.C. (3d) 15 (McLaren); Nova and N.S.G.E.U. (Balcom) (2009), 184 L.A.C. (4th) 423 (Veniot). [10] The Employer argued that the Union is confusing particulars with production of evidence. In its’ submission, while these parties do generally exchange documents before the hearing, Article 27. 2 (c) only require the disclosure of “particulars” at the initial stages of the Grievance Procedure. The Employer submits that “particulars” are not defined in the collective agreement and should be interpreted in accordance with this Board’s longstanding definition: a statement of the material facts, including the who, what, when, where and how of the case. [11] The Employer further submits that the Board and labour arbitrators generally have treated particulars and disclosure of evidence as two separate and distinct obligations. Consistent with that approach, the Employer suggests that the purpose of the two is different, as is the test to be applied in determining the scope of the obligation. Particulars assist the parties in knowing the case against them, whereas disclosure of the evidence permits them to prepare their case for adjudication and is guided by a broad test of arguable relevance. [12] The Employer submits that in this case, full particulars were provided in the termination letter of December 18, 2012 and the videotape was ultimately produced prior to the hearing. - 6 - To the extent that the Union considered the particulars deficient, they could have requested further particulars. In the Employer’s submission, the parties have turned their mind to the kind of pre-hearing grievance procedure they wanted and have only provided that particulars should be provided at grievance meetings. To require that full disclosure be made at this stage would effectively amend, modify or alter the agreement in contravention of Article 27.10. Moreover, the Employer submits that the interpretation advanced by the Union would introduce an unintended element of formality to the Stage 3 meeting, which would make the process extremely technical, going well beyond anything previously ordered by this Board. [13] The Employer understands that the Union suggested that it ought to have had the opportunity to review the videotape with management and have them explain what they relied on in making their decision to discharge the Grievor. In the Employer’s submission, this goes even further than the requirement of full disclosure and production. Counsel is unaware of any context in which a party has been required to review the evidence with the opposing party and walk them through it. [14] In the alternative, the LCBO maintains that Article 27.2 (c) does not create a substantive right and voiding the discharge or allowing the grievance would not be an appropriate remedy. In the LCBO’s submission, the collective agreement confers a procedural right only and any defect can be cured by an order for production. In this case, the LCBO argues that it has already produced the videotape and therefore the remedy for any breach as alleged should be declaratory only. The Union has not advanced any facts to support the claim that there has been real or actual prejudice in this case. The Union has merely speculated that it might have been able to offer an explanation that satisfied management, - 7 - without clearly articulating what that explanation might be or what response they could only have offered if they were given a chance to view the videotape. [15] In the LCBO’s submission, there are no exceptional facts in this case to support the extraordinary relief sought by the Union, to either void the discharge or exclude the videotape, which is clearly relevant evidence. There has been no abuse of process, the Employer has disclosed the evidence after it was referred to arbitration and, since no further dates have been set, the Union now has sufficient time to review the tape and respond to it. An order excluding the evidence would deny the Employer their rights to natural justice in this proceeding. [16] The Employer referred me to Brown and Beatty, Canadian Labour Arbitration, 4th ed., paras: 3:1400, 3:1410 and 3:1420 and the following cases in support of its position: Re Consumers Distributing Co. Ltd. and Teamsters Union, Local 419 (1985), 20 L.A.C. (3d) 223 (O’Shea); United Brotherhood of Carpenters and Joiners of America, Local 27 (Carpenters and Allied Workers) v. Labourer’s International Union of North America, Local 183 (Universal Workers Union) (Jurisdictional Dispute) (2001), 97 L.A.C. (4th) 188 (Springate); OPSEU (Morsi) v. Ontario (Ministry of Finance), [2008], O.G.S.B.A. No. 174 (Devins); OPSEU (Koonings) v. Ontario (Liquor Control Board of Ontario), [2005] O.G.S.B.A. No. 21 (Gray); OPSEU (Kanagarajah) v. Ontario (Liquor Control Board), [2008] O.G.S.B.A. No. 110 (Gray); OPSEU (Bissonnette) v. Ontario (Liquor Control Board), [2009] O.G.S.B.A. No. 67 (Gray); OPSEU (Thomas) v. Ontario (Liquor Control Board), [2008] O.G.S.B.A. No. 228 (Gray); OPSEU (Singh) v. Ontario (MCSCS), [2005] O.G.S.B.A. No. 82 (Abramsky). - 8 - Decision [17] The Employer does not dispute that it is obliged to provide the videotape to the Union. The sole issue before me is the required timing of the disclosure. Do the parties have to disclose material evidence at Stage 3 of the grievance procedure as part of their obligation to provide particulars? [18] The Grievance Procedure is detailed in Article 27 of the Collective Agreement. The first three stages of the process provide opportunities for informal meetings to discuss the grievance among the grievor, the union and management. If the matter is not resolved, the matter proceeds to Stage 4 and the grievor can apply to this Board for a hearing. Employees alleging dismissal without just case are entitled to proceed directly to the third stage of the grievance procedure. [19] Article 27.2 provides as follows: (a) An employee, at his/her option, may be accompanied and represented by an Employee Representative at STAGES 2 or 3 of the Grievance Procedure. (b) An employee who has a grievance and is required to attend a meeting at STAGE 2 or 3 of the Grievance Procedure or a hearing at STAGE 4, shall be given time off with no loss of pay or credits to attend such meeting or hearing. This section will also apply to the Employee Representative, representing the employee, if an employee of the Employer. Time off for the Employee Representative to attend a meeting or hearing, including reasonable travel time, shall be charged against the pool of days established under Article 1.5. (c) (i) If requested, the Employer shall provide the Union with particulars relating to a grievance filed by the Union on behalf of a member or the Union itself during the grievance procedure. (c) (ii) If requested, the Union shall provide the Employer with particulars relating to a grievance filed by the Union on behalf of a member or the Union itself during the grievance procedure. (d) Copies of written decisions provided by the Employer at STAGE 2 and STAGE 3 pf this procedure shall be provided to the Union. - 9 - [20] Having considered the submissions of the parties, I am not persuaded that the obligation to provide ‘particulars’ includes the need to disclose the evidence that will prove a party’s allegation, even where, as here, the evidence is critical to the viability of the central issue. In my view, the interpretation advanced by the Union extends the boundaries of ‘particulars’ far beyond the interpretation widely used and accepted. Moreover, if accepted, it would introduce an element of formality, cost and delay into the initial stages of the grievance procedure that is likely to fundamentally alter the efficacy of the process. [21] Arbitrators have consistently distinguished between particulars, the material facts that a party intends to rely on, and the disclosure of the evidence that it will introduce to prove those facts. At this Board, I regard the definition of particulars as well settled. As I previously stated in OPSEU (Morsi)1, parties are obliged to particularise their allegations so that the opposing party can “know the case that it is required to meet and that the obligation to provide particulars includes receiving ‘an answer to the questions ‘when’, ‘where’, ‘how’, and ‘who’ …”. The definition of particulars has never included the evidence on which the parties rely. Where particulars and disclosure or production are sought, they are treated as distinct requests and separate orders are made for each. That is, the Board will make an order for full particulars and production of all relevant documents. If, as asserted by the Union, the accepted understanding of ‘particulars’ includes disclosure of evidence, it would be unnecessary to identify the need to produce the relevant evidence as a distinct part of the order. [22] I do not accept the broad interpretation of Article 27.2 (c) (i) advanced by the Union. Aside from the fact that it widely deviates from the commonly understood meaning of particulars, it would also impose an excessive burden on the parties at a very early stage of the 1 OPSEU (Morsi) v. Ontario (Ministry of Finance), [2008], O.G.S.B.A. No. 174, at para. 9. - 10 - proceedings. The Union suggested that all of the material evidence, including documents and witness statements would be captured in this obligation. Additionally, the Union argued that it would then be permitted to test the reliability of the evidence either by cross examining a witness or, in the case of a video tape, having the parties sit down together so that they can review and explain what they thought they saw. [23] In essence, the Union seeks to convert the third stage grievance meeting into a mini hearing with full rights of disclosure and opportunity to test the strength of the evidence. I do not think that this is what the parties intended. The grievance meeting is intended to be an early, informal opportunity for the parties to resolve disputes. In that context, it makes no labour relations sense to require that a request for particulars include the obligation to produce the evidence that a party might rely on at arbitration. The decisions regarding proof and what evidence will or won’t be called is made at a much later stage, after all of the legal issues have been identified. [24] The required production of all documents and will say statements at this stage of the proceeding would hinder not assist the process, causing substantial delay and costs. For example, as suggested by the Employer, in an accommodation grievance, the grievor’s full medical record would have to be produced, as would a witness statement from their health care provider. This would impose unduly technical and legalistic obligations at the early stages of the grievance procedure. I do not think that this was what the parties intended. [25] I accept that arbitrators have held that the principles of natural justice might require pre- hearing disclosure of evidence, including videotapes, in order to prevent surprise at the hearing2, even where the collective agreement does not explicitly require disclosure. This 2 Brown and Beatty, Canadian Labour Arbitration, 4th ed., para 3:1400 - 11 - has not been extended, however, to disclosure of evidence at the informal meetings that take place under the grievance procedure, except where expressly required under the terms of the collective agreement. [26] The Union made much of the fact that this was a discharge grievance and that therefore the procedural protection afforded to the Grievor should be of the highest order. I agree that it is important to ensure that all of the procedural safeguards have been met in every case, especially in discharge cases where an individual’s continued employment is on the line. Nonetheless, I cannot insert a requirement that the parties chose not to include. [27] Nor am I persuaded otherwise by the cases relied upon by the Union. None of the cases referred to me dealt with the issue before me, that is, whether the obligation to provide particulars extends to the production of evidence. Rather, the cases submitted by the Union all speak to remedial issues and whether a given right under the collective agreement can be waived. Given my finding that particulars required under Article 27.2 (c) relate to identification of the material facts relating to the issues in dispute and not the production of evidence, it is not necessary for me to consider whether a breach of that provision is substantive or procedural or what might be the appropriate remedy for non-compliance. [28] I do note, however, that I agree with Vice Chair Abramsky in OPSEU (Singh)3 that the relief sought by the Union is an extra-ordinary remedy that should only be available in the most exceptional circumstances. As a matter of general principle, the arbitration process is designed to ensure adjudication of the dispute between the parties on the merits, based on all of the relevant evidence. A decision to summarily dismiss or allow the grievance, or to preclude a party from calling relevant evidence should not be ordered lightly. 3 OPSEU (Singh) v. Ontario (MCSCS), [2005] O.G.S.B.A. No. 82, at para. 14. - 12 - [29] In this case, there was a genuine issue as to the extent of the Employer’s obligation to produce the videotape at an earlier stage of the proceedings. There was no clearly defined obligation under the collective agreement and no order of the Board compelling production. Employer counsel produced the videotape in a timely manner after the matter was referred to arbitration and the Union renewed its request for a copy of the tape. The Union has not identified any specific prejudice that it or the Grievor have suffered; it merely argues that the meeting ‘might’ have had a different outcome. [30] The Union has now had the opportunity to review the videotape and cannot point to any material fact that is revealed in the videotape that was not included in the summary the Employer provided in the discharge letter. The Union did suggest that it might have been able to find witnesses to the events if it had seen the tape at an earlier point in time. The Union did not, however, recite any actual inability to identify and locate witnesses due to the passage in time. In my view, this amounts to speculative prejudice that would not warrant the extra ordinary relief sought. [31] The Union did refer me to Nova Scotia and N.S.G.E.U. in which there is a discussion of the purpose and scope of a somewhat similar provision that required the employer to notify employees who are discharged of the “reason for the suspension, or discharge”4. In this context, Arbitrator Veniot observed that “The notice must be done in detail sufficient for the reader to identify the transaction underlying the discipline.” The Arbitrator goes on to conclude that compliance with the notice provisions “serves a number of salutary purposes: - it will inform the grievor and the union of the case they have to meet; - it will bind the Employer to the grounds specified in the written notice, and so limit the issues to be resolved and/or adjudicated; 4 184 L.A.C. (4th) 422, at p 427. - 13 - - it will prevent surprise into the grievance procedure and beyond; - it will define the issues; - it will alert the grievor and/or her union to the kinds of evidence they will have to marshal as the matter goes through the grievance procedure and perhaps on to adjudication.”5 [32] I regard the above noted case as further support for the interpretation of particulars that I have endorsed and not for the position advanced by the Union. The purpose of the notice requirement that was considered in Nova Scotia and N.S.G.E.U. is similar to the function served by particulars: it sets out the case that the grievor must meet; it limits the scope of the issues and defines them; it guards against surprise; and allows the parties to identify the evidence required to answer the case against them. It is not intended to provide an opportunity for full discovery or disclosure of all the evidence that the opposing party might call if they are required to prove or defend their case. In my view, this is consistent with the jurisprudence of this Board in ordering particulars or dealing with the consequence of providing insufficient particulars. It is also consistent with the approach generally adopted by labour arbitrators and reflects the labour relations needs of the parties at the early stages of the grievance procedure. [33] The Collective Agreement requires the Employer to provide particulars if requested. Was that obligation met in this case? Put another way, was the Grievor given sufficient detail of the Employer’s allegation to know the case against him? I have no hesitation in finding that the termination letter fully discharged the Employer’s obligation in this respect. The letter set out the when (December 9), where (Durham retail Service while working on the MPL), what (theft of Remy Martin Cognac), how (removal from the conveyor belt, hiding product 5 Supra, at p. 429. - 14 - behind boxes of twine and concealing product in the waistband of his pant before depositing them in his car) and who (the Grievor). [34] The Employer has complied with Article 27.2 (c) (i) and the Union’s motion is accordingly dismissed. Dated at Toronto this 18th day of March 2013. Reva Devins, Vice-Chair