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HomeMy WebLinkAboutP.C. 03-10-15 N THE MATTER OF AN ARBITRATION BETWEEN: LOYALIST COLLEGE OF APPLIED ARTS AND TECHNOLOGY (the “Employer/College”) - and - ONTARIO PUBLIC SERVICE EMPLOYEES UNION, LOCAL 420 (the “Union”) AND IN THE MATTER OF THE GRIEVANCE OF PETER CALLAGHAN GRIEVANCE NO. 2003-420-001 BOARD OF ARBITRATION Paula Knopf, Chair J. Campbell, Employer Nominee Ronald Kelly, Union Nominee APPEARANCES For the Employer D. K. Gray, Counsel D. Butler, Vice-President Human Resources D. Holland, Dean, Business and Applied Arts For the Union Andrew Lokan, Counsel Harry Plummer, Chief Steward The hearing in this matter took place in Belleville, Ontario on September 11, 2003 INTERIM AWARD This is a discharge case. The grievor’s employment was terminated on February 19, 2003. He had considerable seniority and had achieved respect as a teacher at the College. The Employer alleges that there was just cause for discharge because of conduct and events that amount to a breach of a “last chance” agreement. The Union’s position is that there is not just cause for termination, that the Employer failed to accommodate the grievor’s alcoholism and that discharge is inappropriate under all the circumstances. At the outset of the proceedings, a preliminary issue arose that the parties asked to be determined before any evidence was tendered. The preliminary issue centres on the Employer’s desire to introduce evidence to support separate and distinct grounds for dismissal that were discovered shortly after the grievor’s termination. The discovery came about when the College was dealing with the impact of the grievor’s termination. There was a need to have someone else take over the teaching responsibilities for the grievor’s courses on short notice. Once a person was selected who could take over the teaching of the grievor’s courses, that person was given access to the College’s two computers that the grievor had used to see if they contained material which would assist in preparing and presenting the courses. In the review of the files, it was brought to the College’s attention that both computers contained what is alleged to be a “considerable amount of pornographic material.” As a result, the grievor and the Union were sent a letter dated March6, 2003 indicating that the College considered that the accessing and downloading of such material on College computers to be “a further reason for . . . dismissal, in addition to those already communicated.” Under the parties’ collective agreement, dismissal cases go immediately to Step 2 of the grievance process. The Step 2 meeting was held on - 2 - March 18, 2003 wherein both the allegations surrounding the alcohol-related and the pornographic material allegations were discussed. The Employer seeks to call evidence on both aspects of the case before this Board of Arbitration. The Union seeks a ruling prohibiting the introduction of such evidence on the grounds that the secondary grounds should be considered as an inappropriate expansion of the grievance. In the alternative, the Union submits that the hearing should be bifurcated and should deal initially only with the original reasons tendered to the grievor for his dismissal. Counsel for the Union argues that the College is relying on two fundamentally different allegations to support the termination. It is argued that the first ground essentially raises questions of innocent absenteeism, disability, accommodation and attendance issues. In contrast, it was said that the pornography allegations raise issues of misconduct, discipline and mitigation. It was argued that allowing the Employer to put forward evidence on both grounds would amount to an unwarranted expansion of the original grounds for discharge contrary to the principles set out in Aerocide Dispensers Ltd. and United Steelworkers of America (1965), 15 L.A.C. 416 (Laskin) and Fuller Austin Insulation Ltd. and United Brotherhood of Carpenters and Joiners of America, Local 2103 th (2002), 107L.A.C. (4) 421 (Casey). In the alternative, the Union argues that the case ought to be bifurcated so that the two separate and distinct issues can be dealt with separately. It was submitted that this could lead to greater efficiencies. Further, it was argued that this procedure would be fairer to the grievor because it would prevent the Board of Arbitration from having the evidence regarding the first issue “coloured” by the impact of the pornography allegations. - 3 - The College opposes the bifurcation of the proceedings and argues that it is appropriate to allow evidence regarding the pornographic computer files in the discharge case. Counsel for the College distinguishes the facts of this case from the situation in the Aerocide Dispensers Ltd. case, supra, by stressing that the secondary grounds only came to light after the grievor was terminated and that the Union was given immediate notice of these allegations. Further, it was stressed that that the parties were able to deal with all the allegations at the Step 2 grievance meeting. Therefore, it was argued that no procedural or substantive unfairness will be created by proceeding with both aspects of the case. The College also argues that bifurcation would be inappropriate in this case because greater inefficiencies may arise if witnesses have to be recalled. Further, it is suggested that the only way efficiencies could be created would be if the Union loses in the first aspect of the case. However, fundamentally, the College suggests that it is critical in a discharge case for a board of arbitration to consider all aspects of the grievor’s behaviour both in determining just cause and in determining whether any mitigating factors exist. In support of its position the Employer relies on the following cases: RCA Inc. and Aerospace and Electronic Communications Employees’ Association (1981), 1 L.A.C. (3d) 407 (O’Shea), Ontario Hydro and Canadian Union of Public Employees, Local th 1000 (1988), 3 L.A.C. (4) 112 (Brent), Cambridge Memorial Hospital and Service th Employees International Union, Local 204 (1996), 59L.A.C. (4) 195 (Brent), J.S. th Jones Timber Ltd. and I.W.A.-Canada, Local 1-3567 (1999), 86 L.A.C. (4) 105 (Hope) and Unilever Canada Ltd. and Milk & Bread Drivers, Dairy Employees, th Caterers and Allied Employees, Local 647 (2001), 101 L.A.C (4) 285 (Rayner). - 4 - The Decision The fundamental task of a board of arbitration is to ensure fairness to both parties. On the question of whether certain evidence should be admitted, the Board of Arbitration has a wide discretion. The exercise of that discretion is based on the objective of providing substantive and procedural fairness to both parties. The issue at hand is whether evidence acquired after the grievor was notified of the grounds for discharge can be relied upon by the Employer. In the Aerocide Dispensers Ltd. case, supra, the employer was prevented from changing the alleged grounds for discipline after evidence had been tendered at a hearing that did not support the originally stated grounds. The case recognized that unfairness would result if the union and the grievor respond to the case they had been given notice of and then the employer was allowed to rely upon a newly formulated argument. However, the case at hand is entirely different, both procedurally and substantively. It is true that the grievor was terminated and given a clear reason for the termination in the initial dismissal letter. Shortly thereafter, the Employer became aware of new information that the Employer alleges amounts to a separate and independent ground for discharge. The Employer immediately notified the grievor and the Union that the College intended to rely upon this evidence as well. The parties were then able to discuss all the allegations at the Step 2 grievance meeting. As a result, the Union and the grievor have had timely notice of the dual nature of the allegations the College wishes to pursue and have had the benefit of the grievance procedures from the outset. Therefore, there has been no procedural unfairness in this process. Further, it is cleat that the facts the College intends to - 5 - rely upon could not have come to the Employer’s attention before the discharge. When there is no procedural unfairness and the facts could only be detected after the discharge, arbitrators will allow the newly discovered evidence to be put forward by an employer as grounds for termination. Accordingly, we shall allow the College to introduce evidence to support the allegation that the grievor misused the College’s computers by accessing and downloading pornographic materials. This leaves the question of whether or not these proceedings ought to be bifurcated. Counsel for the parties estimate that six or seven days of hearing will be required to present all the necessary evidence. It is easy to imagine that the evidence surrounding the computer files, how they were acquired, whether they constitute “pornographic material,” and the College’s policies or lack thereof with regard to these materials may take up a great deal of hearing time. Therefore, it might have appeared initially advantageous to deal with the first aspect of the case before delving into the later allegations. In the event that the original grounds for discharge were upheld, the parties would not be put to the time, expense and difficulties of proceeding with the second allegations. However, in the event that the Union is successful in establishing that there was not just cause for discharge with regard to the “last chance agreement,” there would not be any “efficiencies” created if the proceedings were bifurcated. Witnesses would have to be recalled. The decision-maker for the Employer will have to justify twice how and why the grievor’s conduct was considered just cause for dismissal on all the grounds. Further, there is, at least conceptually, the possibility that the evidence regarding the grievor’s use of alcohol may be used as a mitigating factor with regard to the second aspect of the case. Therefore, there could be - 6 - overlapping witnesses and issues. Because this is a discharge case, it is in everybody’s interest that these proceedings be conducted asquickly and expeditiously as possible. This Board of Arbitration has great concerns that bifurcation will delay the determination of the parties’ rights, rather than expedite them. Only in the event that the Union loses on the first aspect of the case would any efficiencies be created. At this state of the proceedings it is impossible to predict or determine what the outcome of the first aspect of the case will be. Therefore, it would appear to be too great a risk to potentially delay the process on the chance that some efficiency may be created. The Board of Arbitration is mindful of the fact that the Union or the grievor may have some concerns that there could be some unfairness created if both aspects of the case are heard together. This concern seems to arise out of the perception that the allegations regarding the alleged pornographic materials may “colour” the Board’s consideration of the events leading up to original discharge notice. However, this board of arbitration recognizes its responsibility with regard to the consideration of evidence. Each aspect of the case must be considered carefully. Each aspect of the Employer’s grounds for discharge must be proven. The Board of Arbitration is quite capable of determining whether each ground has been proven and separating out aspects of the evidence when, and if, that becomes necessary. Counsel for both parties have both already clearly identified the approaches they intend to take to this case. The issues are complex; however, they are clear and well defined. This Board of Arbitration is able and willing to ensure that all aspects of the case will be dealt with fully and that both procedural and substantive justice will prevail. - 7 - CONCLUSION For all these reasons we have determined that it is appropriate to allow the Employer to call evidence with regard to both the alleged breach of the last chance agreement and the grounds relating to the alleged improper use of the College’s computers. The Board has also determined that it would be inappropriate to bifurcate these proceedings. Accordingly, the matter shall proceed to hearing on the dates agreed to by the parties for consideration of all the events surrounding the grievor’s discharge. th DATED at Toronto, Ontario this 15 day of October, 2003. ____________________________ Paula Knopf - Chair I concur “J. Campbell” ____________________________ Employer Nominee I concur“Ron Kelly” ___________________________ Union Nominee