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HomeMy WebLinkAbout1989-0033.Lindlau.90-01-02 ONTARIO EMPt. OY~:S DE LA COURONNE CROWN EMPLOYEES DE 1. 'ONTARIO GRIEVANCE C,OMMISSION DE SETTLEMENT REGLEMENT BOARD DES GRIEFS 180 OUNDAS STREET wEST, TORONTO, ONTARIO. MSG tZ8 - SUITE 2100 TELEPHONE/T£L~PHONE tBO, RUE DUNDAS OUEST. TORONTO. (ONTARIO) M5G IZ8 - BUREAU 2100 (416) 598-0~$ 33/89 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING' ACT Before THE GRIEV~%NCE SETTLEMENT BOARD Between: OPSEU (J. Lindlau) Grievor - and -- The Crown in Right of Ontario (Ministry of Community & Social Services) Employer Before: J.D. McCamus Vice-Chairperson M. Lypns Member G. Milley Member For the Grievor: L. Trachuk Counsel Cornish & Associates Barristers & Solicitors For the EmploYer: S. Patterson Counsel Ministry of Community & Social Services Hearinq: July 14, 1989 RULING ON OBJECTION 1 This grievance concerns discipline imposed as a result of an investigation undertaken by the Employer into an alleged incident of unsafe driving on the part of the Grievor which allegedly occurred on September ?th, 1988. During the course of that investigation, it is alleged, a number of other incidents of unsatisfactory performance were revealed. In due course, on February 2nd, 1989, the Employer wrote a letter to the Grievor communicating a decision to impose discipline in the form of a suspension of twenty days without pay as a result of the conclusions reached in the investigation. That letter further indicated that the Employer was, in reaching the decision to impose discipline in this form, taking into account not only the allegationm concerning the September 7th, 1988 incident but a number of the other incidents which were revealed in the investigation and described in this letter. At the hearing before this panel of the Grievance Settlement Board on July 14th, 198~, Counsel for the Grievor objected to the admission of any evidence pertaining to incidents allegedly occurring prior to September 7th, 1988. Although an exchange of views on this point was presented to the panel on that occasion, it was agreed by Counsel that written submissions would be filed by Counsel, Counsel for the Grievor being granted a right to reply. The grounds advanced on behalf of the Grievor in support of this objection are essentially fourfold. First, it is argued that the Employer ought to be bound, if only by analogy, by the doctrine of culminating incident and further, that has failed to meet the requirements set out in the arbitral jurisprudence concerning that doctrine. More particularly, it is argued that the Employer has failed to bring the Grievor's attention in a timely fashion to the prior incident~ upon which it has relied and, moreover, that discipline was not imposed with respect to those incidents in a timely fashion. Secondly, it is argued on behalf of the Grievor that failure to discipline in timely fashion with respect to the prior incidents may have resulted in a condonation of that conduct. Third, and this is a related point, it i$ submitted that the discipline imposed on February 2nd, 1989 with respect to the earlier incidents was not timely. Fourth, it is submitted on behalf of the Grievor that the Employer failed to act in accord with its common law duty to meet the requirements of natural justice or to comply with standards of procedural fairness by failing to bring immediately to the Grievor'$ attention details of the alleged incidents that were revealed in the course of the Employer's investigation. We consider each of these points in turn. 1. Culminating incident. It has been argued on behalf of the grievor that the attempt by the Employer to rely on the prior, incidents revealed in the course of the investigation raises issues analogous to those which arise in cases resting on a "culminating incident" theory. In such cases, it is argued, it is established that the Employer can rely on prior misconduct only if (a) the final incident is itself worthy of discipline, (b) the prior incidents were brought to the grievor's attention in timely fashion and (c) discipline was imposed for the prior incidents in a timely fashion. See generally, Brown and Beatty Canadian Labour Arbitration (3rd ed., 1988) para. 7:4310. It is further argued that in the present case, the Employer fails on elements (b) and (c). In the submissions made on behalf of the Employer it was emphasized that the doctrine of culminating incident Der se,is not in fact being relied on by the Employer in the present case. At the risk of over-simplification, the doctrine of culminating incident pertains to the question of whether, in making a decision to discipline, an employer can properly consider an employee's past employment record in so far as it related to disciplinary matters. Put more bluntly, the question is whether the employee's prior disciplinary record may be taken into account in imposing a heavier penalty than might otherwise be appropriate for the misconduct at issue. In the present case however, it is admitted by the Employer that there is no prior record of discipline. Rather, it is submitted that each of the seven matters set out in the letter of February 2nd, 1989 as having been revealed in the Employer's investigation are the subject of discipline now for the first time. Accordingly, the Employer's view is that it is imposing discipline with respect to incidents it has recently discovered rather than, on the basis of the culminating incident doctrine, seeking to impose an aggravated penalty with respect to the most recent incident. In these circumstances, we accept the view that the Employer is not relying on the doctrine of culminating incident and accordingly, we are persuaded the requirements that have developed in the arbitral Jurisprudence concerning that doctrine are not applicable to the present case by virtue of that doctrine. More £mportantly, however, we are also persuaded that elements (bi and (c) of the culminating incident doctrine, referred to above, do not reach the present fact situation by analogy. Rules that may be quite appropriate in a culminating incident case where the employer has previously disciplined for past misconduct may well be inappropriate in a case where the past misconduct is discovered by the Employer for the first tim~ in the investigation of the most recent incident. Certainly, in the absence of any evidence on such questions as Employer knowledge, gravity of the incidents, and so on, we are reluctant to conclude that any evidence concerning the prior incidents is inadmissible in these proceedings. Before leaving this topic, we note, however, that some reliance was placed by counsel for the Grievor on Standard - Modern Technologies and United Steelworkers of America. Local 3252 (1986), 26 L.A.C. 150 (Schiff) for the proposition that the elements of 5 culminating incident can be relied on outside the narrow context of such cases. In Standard - Modern, however, the Employer sought to take into account previous ihcidents of which it had been aware at the time of their occurrence. The imposition of culminating incident standards in such a context may well be justified but the present case, as we have noted., is materially different insofar as it relates to freshly discovered incidents. 2. Condonation Notwithstanding our views on the relevance of the doctrine of culminating incident, it is nonetheless necessary to consider the submissions made by Counsel with respect to condonation. We do not doubt that condonation may well be relevant in a case such as the present. We are persuaded, however, that the possibility that the grievor may be able to raise a defense of condonation with respect to any one or all of the previous incidents is a question of fact to be determined in these proceedings and not the basis of an objection to hearing evidence concerning alleged incidents which the Employer claims to be the appropriate subject of discipline. Support for this view may be drawn from the characterization of the defence of condonation offered by Vice-Chairperson Fisher in OPSEU (Trotter~ and The Crown in Right of Ontario (Ministry of Community and Social Servicps), GSB282/88, wherin it is stated, at page 9: Moreover, in order to properly assess the issue of condonation it would be necessary to hear the evidence of the Grievor because the defense of condonation is one in which the Grievor says, "I did what =hey are accusing me of, but I thought it was okay because I did it openly and no one ever disciplined me for it.- It would not be proper to simply speculate what the Grievor may or may not have been thinking without hearing her evidence first. It is not at this point clear that the Grievor will rely on the defence of condonation in this sense. It is sufficient for present purposes for us to indicate, however, that we do not believe that what would in effect be a presumption of condonation can serve in the present matter as a basis for refusing to admit evidence concerning alleged incidents prior to September 7th, 1988. 3. Timeliness. It is submitted on behalf of the Grievor that the imposition of discipline with respect to incidents occurring prior to September 7th, 1988 should fail on grounds of timeliness and therefore ought to be considered irrelevant to the Employer's decision to impose discipline with respect to the alleged incident of September ?th, 1988. In reply, the Employer notes that the dates indicated in the letter of February 2nd, 1989 indicate that the prior incidents occurred, in two cases, two and six weeks prior 7 to September 7th, 1988. A third incident allegedly occurred in November 1987 some ten months prior to September 7th, 1988. Accordingly, the Employer argues that none of the prior incidents are of such an age that they ought no longer be considered to be a fit subject for discipline. In our view, whether or not the Employer's submissions on this latter point have merit, the question of timeliness ought to be considered in the present circumstances on the basis of the evidence brought by the parties in order to determine whether or not any actual rather than hypothetical prejudice has occurred to the Grievor as a result of a passage of time. 4. Procedural Fairness The objection brought on the grounds of procedural fairness relates essentially to the alleged denial of the Employer to provide the Grievor with a timely opportunity to make submissions 'prior to February 2nd, 1989 with respect to the incidents covered in the Employer'~ investigation. In response, the Employer argues that the doctrine of procedural fairness does not apply in the present context where the relationship between the Grievor and the Employer is the subject of detailed regulation in the Collective Agreement and in the governing legislation under which that Agreement has been reached by the parties. Support for this proposition was draw~ from the decision of the Grievance Settlement 8 Board in OpSEU (Liouba Tanevsk¥) and The Crown_in Right of Ontario (Ministry of Consumer & Commercial Relations). 0763/88. We note that in the present case, Counsel for the Grievor has not suggested that a breach of any of the procedural requirements set out either in the Collective Agreement or in the governing legislation has occurred in the present case. In our view, it is unnecessary to determine whether the doctrine of procedural fairness can ever conceivably have any application to parties governed by a collective agreement. It is sufficient for present purposes for us to note that where, as here, no breach of either the agreement or the legislation has been alleged, and indeed, no attempt has been made by counsel to measure the procedural protections in place under those instruments against common law standards, we are not, without more, prepared to rule that evidence concerning these alleged incidents is inadmis~ible. Those existing procedures are insufficient and must therefore be supplemented by resort to the common law doctrine of procedural fairness. Although it is therefore our view that the objection to admissibility fails on this ground, we wish to indicate that we re~ain, at this point, an open mind on the ques=ion of whether the requirements of procedural fairness could apply in a case of this kind. For the foregoing reasons, the objection made on behalf of the Grievor with respect to the admissibility of evidence concerning incidents which allegedly occurred prior to September 7th, 19a8 is hereby dismissed. As should be evident, however, we do not wish our dismissal of this objection to be considered a refusal .to consider such questions as condonation, timeliness or, indeed, procedural fairness as may arise from the evidentiary record ultimately placed 'by the parties before the Board in the present case. DATED at Toronto this .2nd day of .'January, 1900. "I dissent" (without written reason) '~. Lyons, Member Member GSB 33/89 LINDLAU (OPS£U and MCS£) DISSENT I have read the decision of'the majority and, with respect, I must dissent. I will deal with three issues: 1) the bus ride from Lakeside to the Oxford Regional Centre on September 7; 2) the alleged interference with the investigation by the grievor; 3) the reassignment of the grievor to non bus drivir~ duties. I) A£ter considering the evidence, I concur wish the majority that the grievor's driving an September 7 cannot be described as "highly dangerous and. un~a~e".- Rather, ~ believe the majoritY properly characterized the grievor's. driving on that day as '~accapt~able and i~responsibie". GLwen that the grievor has more than 30 years senioritR, has an ~nblemished record and has no "~istory of dangerous and unsafe driving", I believe the proper discipline for the September 7 incident would have been a written letter of warning on the grievor's file. With regard to the other alleged incidents of misconduct by the grievor with respect to his driving, I concur with the majority that their significance has b~en exaggerated by the e~ployer and "should rot have attracted discipline". 2) The truth of what ~appened in Lisa Bauman's office on October ~0 probably li~s somewhere between the two versions of the incident. However~ I~believe the grie~or did intend · to influence Ms. Bauman to mislead the investigator. This was totally inappropriate. GSB 33/89 LINDLAU (0PSEU and MCSS) For this serious misconduct, I would have imposed a three day suspension. 3) As the majori{y point out in their award, in addition to the 20 day suspension, "exhibit 3 indicates Mr. Hewitt also decided that the grievor would be ?ee. ssigned for a period of up to five months outside the Transportation Department, during which time he ~ould receive driver training. Once that trsining was waz completed, he would be reassinged duties within the Transportation Department but would no longer be entrusted as a driver with the Dare and safety of residents". Given that: i) the employer never did give'the grievor any dri.~ex~- trainSng!~(because they didn't feel it was necessary or that it would be useful?);' .ii) ~he driver has a.~ood driving re~ord (no history - of unsafe or dangerous driving) and an unblemished personnel record; iii) the-gri~vor has appar~ently been ~eturned to driving dutie~ (but not the transportation cT resident s ); i~) the employer never raised anN concern' regarding insurance or liability if the g~ievor was allowed to transport residents; v) the grievor's r~assig ~rement was for disciplinary reasons a~d was not a normal exercise of the employer's authority to make work assiEnments; I would have ordered the employer to return the Erievor to his former duties (i.e. his duties prior to Feb, 2, 1989). DATED AT TORONTO THYS 19th DAY OF Mf~RCH 1~92. M~ ch~.el Lyons,