Loading...
HomeMy WebLinkAboutOlivo 00-06-19IN THE MATTER OF AN ARBITRATION Between SENECA COLLEGE (“the College”) and ONTARIO PUBLIC SERVICE EMPLOYEES UNION (“the Union”) Regarding the Termination of Larry Olivo (#98C151-Academic) BOARD OF ARBITRATION: Pamela Cooper PicherChairperson Robert J GallivanCollege Nominee Sherril MurrayUnion Nominee APPEARANCES for COLLEGE: Chris RiggsCounsel Wayne Norrison Vice-President of Human Resources, Student Services and International Development (to August 1999) Susan VallanceDirector, Centre for Human Rights and Equity Denise ChanManager, Employee Relations Nimmi Pitt Vice President Hum. Res. (from August 1999) APPEARANCES for UNION: Nick ColemanCounsel Ted MontgomeryUnion President, Local 560 Josef StavroffChief Steward, Local 560 Larry OlivoGrievor Hearings in this matter were held in Toronto on November 2, 1998; February 12th & 19th, April 5th & 13th, June 8th & 24th, September 10th, November 1st, of 1999; January 14th, March 8th & 10th, of 2000. AWARD The Union grieves the termination of Mr. Larry Olivo, which took effect February 10, 1998. Mr. Olivo is a lawyer and a professor at Seneca College’s School of Legal and Public Administration. At the time of his discharge, he was also the vice-president of the Union’s Local 560. Mr. Olivo has taught in the College since approximately 1980. At the point of his termination, he was the administrative coordinator of legal programs. The College alleges that in 1990, 1991, 1992 and 1995 Mr. Olivo sent to Mr. Melvin Fogel, the Director of Employee Relations, through the inter- department campus mail, negative written material that was personally focused on Mr. Fogel, (who described himself as being of the Jewish faith), and is plainly anti-Semitic and scurrilous. Mr. Fogel has been the Director of Employee Relations since 1987. Prior to that time, he had been a teaching master at the College and the unopposed president of Local 560 from approximately 1975 until 1986. As the Union president, Mr. Fogel pursued the interests of the Union in an assertive manner. It is undisputed that some members of the Union were taken aback, offended and upset by Mr. Fogel’s move into management. Approximately seven insulting and hateful communications were sent to Mr. Fogel between 1990 and 1995. Six were sent through inter-department, re- 1 usable envelopes: the first one was sent in May of 1990, two were sent in August of 1991, two in November of 1991, and one in September of 1992. In November of 1995, Mr. Fogel received a similarly-styled e-mail from the Ontario Science Centre. All but two of the re-usable, inter-department envelopes containing the offensive material were addressed to Mr. Fogel on typed labels. Two, however, were addressed to Mr. Fogel by hand, the one sent in May of 1990 and one of the two sent in August of 1991. One envelope reads, ”Mel Fogel Fairmeadow” and the other, “Melvin Fogel FAIRMEADOW CONFIDENTIAL”. From the moment of his receipt of the two hand-addressed envelopes in 1990 and 1991, respectively, Mr. Fogel believed that the handwriting was that of the grievor, Mr. Olivo, and that Mr. Olivo was the one responsible for sending him the insulting material. The College readily acknowledges that it has no evidence to directly establish that Mr. Olivo is the person who either created or sent the offensive material to Mr. Fogel. The only direct evidence the College has to link any person to any of the material that was sent to Mr. Fogel between 1990 and 1995 is the handwritten addresses on the two re-usable envelopes sent in 1990 and 1991. Moreover, the College has no evidence to tie Mr. Olivo to the second communication in August of 1991 or the materials sent in November of 1991, September of 1992 or November of 1995. In Mr. Olivo’s letter of termination, however, the College held Mr. Olivo responsible for sending the subsequent 2 material, as well, apparently on the basis that if he had sent the communications in 1990 and 1991, he also must have sent the similarly-styled subsequent materials. It is, however, Mr. Olivo’s alleged responsibility for the material contained in the two hand-addressed envelopes which were sent to Mr. Fogel in 1990 and 1991 that the College advances to contend that Mr. Olivo’s grievance against his discharge should be dismissed. No action was taken against Mr. Olivo for seven to eight years following Mr. Fogel’s receipt of the offensive material in 1990 and 1991. It was not until February 6, 1998 that Mr. Olivo was first made aware that he was being accused of having sent the disturbing communications. Four days later, on February 10, 1998, he was terminated. Mr. Olivo, the Union and everyone involved in this matter agrees that the communications that were sent to Mr. Fogel were outrageous, hateful and deeply offensive. Both the Union and Mr. Olivo strenuously contend, however, that Mr. Olivo was not in any manner responsible for the creation or sending of the disturbing material. From the day of his termination, the Union has asserted to the College that it had taken action against the wrong person. At the hearing, the College presented evidence from a handwriting expert, Ms. Linda Pitney, to the effect that it is “highly probable” that the two hand-written addresses were executed by the same person and that that person was Mr. 3 Olivo. The Union, on the other hand, presented evidence from another hand- writing expert, Ms. Diane Kruger, to the effect that “the evidence [was] not sufficient to reach a conclusive opinion.” The Union’s expert witness testified that ”the indications” were that Mr. Olivo “did not write” the address, “Melvin Fogel FAIRMEADOW CONFIDENTIAL” on the envelope sent in August of 1991 and that there were "indications" that Mr. Olivo “did write” the address, “Mel Fogel Fairmeadow” on the envelope sent in 1990. The Union argues that even if it is concluded that Mr. Olivo wrote the addresses on the two envelopes, the evidence further reveals that the envelopes are re-usable, that in the regular course of Union business Mr. Olivo, as a Union official, addressed many envelopes to Mr. Fogel in his capacity of Director of Employee Relations and that these envelopes, so addressed, and once emptied of their contents, were typically placed in bins or in stacks on tables and were available to be taken by passers-by for re-use. Accordingly, the Union argues, the fact that the offensive material may have been sent to Mr. Fogel in 1990 and 1991 in envelopes which may have been addressed to Mr. Fogel in the handwriting of Mr. Olivo falls well short of the clear and cogent evidence required to establish that Mr. Olivo is responsible for sending the communications to Mr. Fogel. While the College acknowledges that the writing on the two envelopes dating back to 1990 and 1991 is the only “hard” evidence it has to establish that 4 Mr. Olivo is the person who sent the communications to Mr. Fogel, it argues that the improbability of someone else finding, allegedly a year apart, two envelopes, both addressed to Mr. Fogel in the hand-writing of Mr. Olivo, is so remote that the possibility carries no credibility. The College further emphasizes the evidence it presented to allegedly establish (1) that Mr. Olivo disliked Mr. Fogel and, therefore, had the motivation to send the material and (2) that Mr. Olivo lacks credibility because when he was confronted with photocopies of the offensive material and photocopies of the envelopes at a meeting convened by the College on February 6, 1998, Mr. Olivo denied not only that he had sent the material but also that the handwriting on the two envelopes was his. The College held the view that if Mr. Olivo would deny that the writing on the envelopes was his, he would also lie about his role in the sending of the offensive material to Mr. Fogel. In this manner, Mr. Olivo’s denial on February 6, 1998 that the writing of Mr. Fogel’s name and campus location on the envelopes was his, confirmed the College’s belief that he was the person who should be held responsible for sending the communications. Accordingly, the College discharged Mr. Olivo at a meeting held on February 10, 1998. Regarding the handwriting, Mr. Olivo stated that he was in complete shock th when first confronted with the accusation at the meeting on February 6, that he did not recognize the envelopes as ones he had sent and that he assumed, at that moment, that the writing on the envelopes couldn’t have been his because he hadn’t sent the hateful materials. At the February 10, 1998 termination 5 meeting, Mr. Montgomery asked when the envelopes had been received by Mr. Fogel. He was told by the College that the dates of receipt, which were seven and eight years earlier, were irrelevant. He further asked to see the original envelopes but was denied. Mr. Olivo stated that the handwriting on the envelopes bears some similarity to his but that he is unable to say for certain that it is his. The Union seeks Mr. Olivo’s reinstatement with full compensation. The Union further asserts that the College acted in bad faith, with malice against Mr. Olivo, and seeks a further award for aggravated damages. The parties have agreed to leave the Union’s claim for aggravated damages to a point following the Board’s determination of Mr. Olivo’s entitlement to reinstatement and compensation. It is the position of the Union that the discharge of Mr. Olivo should be rescinded not only because Mr. Olivo did not send the offensive material to Mr. Fogel but also because the College delayed some seven to eight years before taking action against Mr. Olivo. The common evidence establishes that when Mr. Fogel received the first communication in May of 1990, he believed that the handwriting of his name and campus location on the outside of the re-usable envelope was that of Mr. Olivo. On the basis of the handwriting, Mr. Fogel further concluded that it was Mr. Olivo 6 who had sent the documents. Mr. Fogel showed the document to his managers and then locked the communication in his desk drawer. After he received the next communications in August of 1991, he consulted with Ms. Susan Vallance, the Director of Human Rights and Equity. Once again, he believed that the handwriting on the envelope was that of Mr. Olivo and that Mr. Olivo was the person responsible for sending him the material. Ms. Vallance contacted the police who then conducted an investigation which included sending finger print and handwriting samples to a forensic laboratory. In or about July of 1992, the police verbally reported back to the College that the evidence was “inconclusive” and that they could not make any determination. Through a note to file dated November 1992, Ms. Vallance stated that the “College [had] pursued every avenue at this point”, that “Forensic testing [had] been done, both handwriting analysis of suspected perpetrators and finger prints to no avail” and that the “File [was being] officially closed.” Accordingly, no action was taken against Mr. Olivo following the police investigation in 1992. In 1993, Mr. Fogel retained a private investigator at the expense of the College. Mr. Fogel testified that because of the illness of the private investigator, no results were obtained and the private investigation was never concluded. In 1997, Mr. Fogel initiated a personal action in defamation against Mr. Olivo and numerous other representatives of the Union for statements that 7 allegedly had been made by Mr. Fogel and published in a Union newsletter. The defamation action was not directly related to the derogatory communications which prompted Mr. Olivo’s termination. The bundle of offensive material that had been sent to Mr. Fogel between 1990 and 1995, however, was included, without comment, in the affidavit of documents supporting the defamation action. No suggestion was made at that point that the malicious documents had been sent to Mr. Fogel by Mr. Olivo. 1997 was also a year in which difficult negotiations were in progress between the Union and the College. Mr. Montgomery, the president of Local 560, headed the Union bargaining team. It is clear from the undisputed evidence that for many years the general relationship between Mr. Fogel and the Union had been strained with each party taking exception to the other. It was in the context of the civil action for defamation that Mr. Fogel retained a handwriting expert, Ms. Linda Pitney. By a letter dated January 29, 1998, Ms. Pitney reported to Mr. Fogel her conclusion that it was “highly probable” that the handwriting on the envelopes was that of Mr. Olivo. Ms. Pitney’s report contained the first conclusion by a professional that the person who addressed the two hand-written envelopes containing the disturbing communications to Mr. Fogel was Mr. Olivo. 8 Once the College was in receipt of Ms Pitney’s report, it took immediate action against Mr. Olivo. It convened a meeting on February 6, 1998 at which Mr. Olivo, for the first time, was confronted with photocopies of the documents and envelopes dating back to 1990 and 1991 and accused of having been the one responsible for sending them to Mr. Fogel. Four days later, on February 10, 1998, the College convened another meeting at which it advised Mr. Olivo of his termination. During the course of the arbitration hearing, evidence came forward to suggest that the College had disciplined the wrong person. Ms. Patricia Clark has been the secretary for the Local for approximately four years and, prior to that, had worked for the Union in various other capacities. The undisputed evidence establishes that on or about March 12, 1999, a teacher who will be referred to as “Mr. R.” came to Ms. Clarke’s office and stated that he knew who had sent to Mr. Fogel the material for which Mr. Olivo had been fired. Mr. R refused, however, to name the person. Ms. Clark stated that Mr. R advised her that the person had sent an offensive e-mail to Mr. Fogel from the Science Centre and that Mr. Fogel, as well, knew who had done it. Following the initial encounter with Mr. R., Ms. Clarke called both Mr. Olivo and Mr. Montgomery to advise them of what she had been told. Approximately two weeks later, on or about March 26, 1999, Ms. Clark met again with Mr. R. and was able to obtain from Mr. R., through a slip of the tongue, the first name of the person he had been referring to as the person who had sent the offensive 9 material to Mr. Fogel. Ms. Clark, forthwith, advised Mr. Montgomery of the first name and Mr. Montgomery guessed that the person was a person who will be referred to as “Mr. N.” Mr. Montgomery spoke with Mr. N and Mr. N denied any involvement in the matter. Neither Mr. Olivo nor any of the Union officers who were made aware of Mr. N’s possible involvement told the College about it until Mr. Montgomery gave evidence at the November 1999 hearing. The Union testified that it chose to deal with it at the hearing. At the April 5, 1999 hearing, the Union counsel asked Mr. Fogel in cross examination whether he had seen a former support staff person, Mr. N., at the Science Centre. Mr. Fogel replied that he had not. Regarding Mr. Olivo, counsel for the Union argues that the delay between the alleged sending of the documents to Mr. Fogel by Mr. Olivo in 1990 and 1991 and his discharge in 1998, some seven and eight years later, is so lengthy, unjustifiable and prejudicial to Mr. Olivo that the delay, standing on its own, vitiates the discharge. Counsel asserts that no new evidence came to light between 1990/1991, when Mr. Fogel received the documents, and 1998, when Mr. Olivo was first confronted with the allegation and then discharged. The Union argues that the delay has placed Mr. Olivo in a compromised position respecting his ability to recall such pertinent matters as his whereabouts at the time the documents were sent and whether, in or about 1990 and 1991, he was otherwise sending material to Mr. Fogel, in the regular course of his Union duties, using inter-department re-usable envelopes which might then have been placed in a bin accessible to the public. 10 The College argues that it did not remain idle between August of 1991, the date of the last communication contained in an envelope allegedly addressed to Mr. Fogel in Mr. Olivo’s hand, and February 6, 1998 when Mr. Olivo was confronted with the allegation. The College points to the police investigation in 1992 and the hiring of a private investigator in 1993. The College argues that it took action as soon as it obtained the 1998 report of the handwriting expert who positively identified the handwriting on the envelopes as that of Mr. Olivo. Re University of Ottawa and International Union of Operating In th Engineers, Local 796-B (1994), 42 L.A.C. (4) 300 (Bendel), the arbitrator upheld the grievance against the discharge of an employee on the basis that the University took no disciplinary action and did not confront the grievor with the allegation of theft for four months after the grievor had been identified as the individual who, a year earlier, had stolen the money. At pp. 312-313, the arbitrator reasoned as follows: I am satisfied that, in the present case, the employer had knowledge of facts, which, if true, would have justified the imposition of discipline against the grievor as early as March, 1994. His superiors knew then that he was under investigation for the theft that occurred in February, 1993. I refer, here, to the testimony of Mr. Reiter to the effect that he so informed Mr. Mario Bouchard, the assistant director of the physical resources service, in March, 1994. If Mr. Bouchard inquired about the basis for the investigation—and, although there is no evidence on whether he did or not, one can probably assume that a prudent manager would have done so—he would have learned that an eyewitness to the theft, Mr. Roger, had identified the grievor as the thief. That, in my 11 view, constitutes possession by the grievor’s superiors of information, which, if true, would justify discipline. Once the employer was in possession of that information, it had to act Its desire to be expeditiously if it wanted to discipline the grievor. positive of the grievor’s guilt before taking action, although understandable, does not, in my view, justify the delay. Perhaps the appropriate course of action for the employer would have been to suspend the grievor pending further investigation once Mr. Roger had made his identification of the grievor as the thief: see, e.g. the discussion in Re Tank Truck Transport Ltd., supra. ... I am satisfied that, whichever theory on the expeditious application of discipline is adopted, the delay in the present case was indefensible. The employer knew, in March, 1994, that the grievor had been identified as the person who stole money from Mr. Leyser a year earlier. It took no disciplinary action, and did not confront the grievor with the allegation, until the end of July, 1994. Its desire to bolster its case against the grievor by having Mr. Leyser make an identification of him does not justify this delay. [emphasis added] th Re Canada Post Corporation and C.U.P.W In (1989), 3 L.A.C. (4) 444 (Weatherill), the arbitrator reinstated the grievor with compensation on the basis of the Corporation’s delay in imposing discipline. The arbitrator stated at p. 448 that the critical point for the start of the time limits established in the collective agreement for the taking disciplinary action was when the “employer [had] information which, if true, would justify discipline”: In the instant case, the employer did have information, th which, if true, would justify discipline, on October 17. The alleged infraction would come to its attention by that time, and in fact it conducted no further investigation (nor would one appear to have been called for). The delay in action is accounted for, not by 12 default of information, but (however understandably) by the decision-making process. The collective agreement does not allow the employer such leeway. th Re Miracle Food Mart and U.F.C.W. In (1988), 2 L.A.C. (4) 36 (Haefling), the arbitrator reinstated the grievor with compensation on the sole ground that “there was unreasonable delay in imposing the discipline and that the delay in fact was prejudicial to the grievor” (p.47). The arbitrator stated that, “the employer’s representatives reviewed the evidence against the grievor [regarding the consumption of store product] available on videotape as early as August of 1987.” The employer, however, delayed taking action against the grievor until March of 1988, some seven months later. At pp. 46-47 the arbitrator stated, If in fact the employer had acted in August of 1987, at that point, clearly, its objective in seeking to deter unauthorized employee consumption could well have been achieved at the earlier date, and the grievor would have been in a better position to attempt to respond and to give answer to the charges and the evidence against him. However, as matters stood at this hearing, ... the grievor, Mr. H., had no recollection whatever of the times or the circumstances in which, as the videotape discloses, he appears to be eating produce. ... Rather, the testimony of the employer’s witnesses was that, once it was determined that there was no active police investigation of the November incident, the tapes previously acquired were again reviewed and edited and then discussed with the employer’s legal counsel, following which a course of disciplinary action was contemplated, all of those being steps which, logic suggest, might have been pursued either before or during the time police were involved in investigating the other matter. It is, therefore, my conclusion from the foregoing that there was unreasonable delay in 13 imposing discipline and that the delay in fact was prejudicial to the grievor. For those reasons, I would allow both grievances and order that the grievor be reinstated with compensation. Re Seneca College of Applied In a case involving the instant parties, Arts and Technology and Ontario Public Service Employees Union (1996), th 57 L.A.C. (4) 343 (Keller), the board of arbitration concluded at p. 345 that it could give no weight to an alleged incident in 1990 in reviewing the grievor’s discharge in June of 1993 because the College’s delay in “bringing the [1990] matter to the attention of the grievor [had] seriously prejudiced his ability to deal with the allegations made against him.” The College was aware of the alleged wrongdoing in 1990 at the time of that incident. It took no action against the grievor at that time, however, because the alleged complainant was not willing to have the issue pursued. It was when further matters came to light that the College decided to press the incident in 1990, along with the more recent incidents. At pp. 354-355, the board stated as follows: Procedural fairness is one of the hallmarks of the Canadian judicial system. It must also be one of the hallmarks of the arbitral system. It is fundamental to this system that individuals be aware at the earliest opportunity of allegations against them... The Board cannot ignore the issue of delay as raised by the Union. The issue of delay is important, because it denies the grievor the opportunity to raise a proper defense against the allegations. As was pointed out by Counsel for the Union, in most allegations where there is an untoward delay, the law is that all the allegations are simply dismissed. 14 It was incumbent, in our view, on the College to have … followed its own policy, to have brought the matters alleged against the grievor to his attention as early as possible, and as specifically as possible so that he had the opportunity of the earliest possible opportunity to deal with the matters alleged against him. To not have done so allows us no option but to vitiate the penalty of discharge. [emphasis added] In the instant matter, the Board concludes that the College’s delay of seven/eight years in taking action against the grievor is so extended and prejudicial to the grievor that it voids the discharge in its entirety. When Mr. Fogel received the disturbing communication in May of 1990, he identified the handwriting on the envelope as that of Mr. Olivo. The two had regular written contact with one another through the exercise of their respective roles with the Union and the College and Mr. Fogel was fully satisfied that the handwriting on the envelope was that of Mr. Olivo. The same process of identification by Mr. Fogel occurred when Mr. Fogel received the second envelope containing offensive material in August of 1991. At the point of Mr. Fogel’s receipt of the material in May of 1990 and August of 1991, respectively, the College had the evidence, which if true, on the College’s theory of the case, would justify discipline. At the point of the receipt of the envelopes in 1990 and 1991, the College had identified the handwriting on the envelopes as that of Mr. Olivo. It was at that point, at a time contemporaneous with the events, that the College was obligated to confront Mr. Olivo with the accusation of wrongdoing. It was at that time that Mr. Olivo would 15 have been able to recall such matters as his whereabouts at the precise time of the sending of the communications, as well as his use of inter-department re- usable envelopes in the regular course of his union/management business with Mr. Fogel. Using business receipts he had saved for tax deduction purposes, Mr. Olivo presented evidence that he was not in Toronto for a good portion of August of 1991, when one of the envelopes was sent. It is apparent, though, that Mr. Olivo’s recollection of other facts and events that could have assisted him in his defence might well have been augmented if he had been confronted by the allegation of wrongdoing at a time contemporaneous with the event, instead of some seven to eight years later. In addition, the Union has asserted from the time of the discharge that the College had disciplined the wrong person for the deplorable action against Mr. Fogel. Had Mr. Olivo been confronted with the accusation at a time contemporaneous with the alleged wrongdoing, the Union may have been better able to take steps to reveal the involvement of other individuals. The College’s delay of so many years before confronting Mr. Olivo with the accusation of being the person responsible for the anti-Semetic, personally insulting and deplorable communications to Mr. Fogel was a denial of procedural fairness. The Board cannot accept that the College was justified in waiting to confront Mr. Olivo until it had the 1998 evidence of an expert who identified the handwriting as that of Mr. Olivo. In 1998 the evidence against Mr. Olivo remained 16 virtually the same as it had been seven/eight years before when the documents were received by Mr. Fogel. In 1990/1991, the evidence against Mr. Olivo was that two of the envelopes containing the offensive material were allegedly addressed to Mr. Fogel in Mr. Olivo’s handwriting. In 1998, the only evidence against Mr. Olivo was that two of the envelopes containing the offensive material were allegedly addressed to Mr. Fogel in Mr. Olivo’s handwriting. In 1990 and 1991, Mr. Fogel, himself, identified the handwriting as that of Mr. Olivo. In 1998, Mr. Fogel still identified the handwriting as that of Mr. Olivo. The only change that occurred in the intervening years is that in 1998, Mr. Fogel finally received a positive identification by a handwriting expert that the handwriting on the envelopes was that of Mr. Olivo. The role of the handwriting expert, however, was not to contribute fresh evidence which, if proven, would justify discharge but rather to bolster the evidence the College already had and increase the strength of its case against Mr. Olivo. Notwithstanding the “inconclusive” police investigation of Mr. Olivo’s handwriting and finger prints in 1992, the College’s delay of seven to eight years before confronting Mr. Olivo, i.e. until it had expert evidence to bolster Mr. Fogel’s own identification of the handwriting, was unwarranted and fully compromised Mr. Olivo’s ability to defend himself. In the result, the Board finds that the College’s delay in bringing the alleged wrongdoing to the attention of Mr. Olivo and its delay in taking disciplinary action against him was unwarranted, prejudicial and of sufficient gravity to vitiate Mr. Olivo’s discharge in its entirety. 17 Accordingly, the Board, for the reasons stated, voids the termination of Mr. Olivo and directs that, forthwith, he be reinstated with full compensation, inclusive of seniority and benefits. The Board remains seized in the event that a dispute arises over the implementation of this Award, inclusive of issues of mitigation. Pursuant to the agreement of the parties, the Board further remains seized of the question of aggravated damages. Dated at Toronto this 25th day of May, 2000. __________________ Pamela Cooper Picher Chairperson I concur__”Sherril Murray”____ Union Nominee I concur___“Robert Gallivan”__ College Nominee 18