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HomeMy WebLinkAbout2005-2409.Cahill.06-07-05 Decision Commission de Crown Employees Grievance Settlement règlement des griefs Board des employés de la Couronne Suite 600 Bureau 600 180 Dundas St. West 180, rue Dundas Ouest Toronto, Ontario M5G 1Z8 Toronto (Ontario) M5G 1Z8 Tel. (416) 326-1388 Tél. : (416) 326-1388 Fax (416) 326-1396 Téléc. : (416) 326-1396 GSB# 2005-2409 UNION# OLB578/05 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLEC TIVE BARGAINING ACT Before THE GRIEVANCE SE TTLEMENT BOARD BETWEEN Ontario Public Service Employees Union (Cahill) Union - and - The Crown in Right of Ontario (Liquor Control Board of Ontario) Employer BEFORE Vice-Chair Nimal V. Dissanayake FOR THE UNION Kourosh Farrokhzad Barrister and Solicitor FOR THE EMPLOYER Dan Palayew Ogilvy Renault LLP Barristers and Solicitors HEARING June 20, 2006. 2 Decision The grievor, Mr. Patrick Cahill filed a di scharge grievance dated November 19, 2003. I conducted a hearing on multiple days and issued a decision dated August 11, 2005. Suffice it to state that the grievor was reinst ated subject to strict conditions. One of the conditions imposed was as follows: The grievor must maintain a discipline free record for a period of two years from the date of his reinstatement. Should he engage in misconduct in that period which gives cause for any discipline, he shall be subject to immediate discharge. At any arbitration the only issue w ould be whether or not he engaged in misconduct that give just cause for any discipline. In compliance with the award the grievor was reinstated in the posi tion of manager of a LCBO store in Cardinal, Ontario. He starte d working in this capacity on September 13, 2005, th and worked 8 shifts without incident. October 8, 2005, was the Saturday of the Thanksgiving long weekend, one of the busiest days in the year for LCBO stores. The gr ievor was scheduled to report to work at 9:00 a.m. and get the store ready for opening at 10:00 a.m.. The grievor did not report to work until approximately 10:50 a.m.. Th e store, which was scheduled to open at 10:00 a.m., did not open until 10:47 a.m.. The employer determined that the grie vor’s lateness on October 8, 2005 constituted misconduct that gave cause for discipline, and th erefore violated the condition of reinstatement set out above. The grievor was th erefore discharged, and he grieved. The Board commenced hearings into the merits of this grievance on January 9, 2006. One of the witnesses called by the employer wa s Ms. Karen Richardson-Norris, the District Manager. Following her testimony, union counsel advi sed the Board that he wished to move that 3 the discipline in ques tion, i.e. the grievor’s second dismissal, was void ab initio because Ms. Norris-Richardson’s testimony had disclosed that article 26.3 of the collective ag reement with regard to union representation had not been comp lied with. The parties agreed that the Board should suspend the hearing of the merits of the grievance, and rule on the motion. The motion with respect to ar ticle 26.3 was argued on June 20, 2006. That article reads: 26.3 An employee who is required to attend a meeting for the purpose of discussing a matter which may result in disciplinary action being taken against the employee shall be made aware of the purpose of the meeting and his/her right to Union Representa tion in advance of the meeting. The employee shall be entitled to ha ve a Union representative at such meeting provided this does not result in undue delay. In Re Bell, 683/01 (Dissanayake) I desc ribed article 26.3 as follows: This provision confers upon an employee required to attend a meeting falling within its ambit, three distinct rights. First, the employee must be made aware, in advance, of the purpose of the meeting. Second, the employee must be made aware, in advance, of his/her ri ght to union representation at the meeting. Third, the employee is entitled to have a union representative at such meeting provided that does not result in undue delay. In Re Simpson, 1469/01 (Dissanayake) at p. 11, I also observed: It is now settled law that the rights conf erred by article 26.3 are substantive, and not procedural and that as a result where there is a breach of the provision, the resulting remedy is a declaration that the discipline is void ab initio. See, Re LaHay, 809/94 (Gorsky); Re Pedneault, 1568/98 (Briggs); Re Franssen, (supra) and Re Xanthopoulos, 1372/01 (Abramsky). The parties are not in disagreement with the principles set out in those decisions. The union’s claim is that a telephone conversation that took pla ce on October 8, 2005, between the grievor and Ms. Karen Richardson-Norris, the Dist rict Manager, came within the ambit of the words “Where an employee is required to atte nd a meeting for the purpos e of discussing a matter 4 which may result in disciplinary action bei ng taken against the employee” and therefore triggered an entitlement to the th ree distinct rights se t out in article 26.3. The employer concedes that none of the three article 26.3 rights as described in Re Bell were accorded to the grievor on October 8, 2005. The only issue in dispute, theref ore, is whether or not a meeting within the ambit of article 26.3 took place that day. The facts in that regard material to the ar ticle 26.3 motion are not in dispute. As noted, the grievor was scheduled that day to report to work at 9:00 a.m., to do the necessary preparations and open the store at 10:00 a.m.. A casual employee, Ms. Dominique Reid was scheduled to start at 1:00 p.m.. Ms. Reid testified that arou nd 10:30-10:35 a.m. the owner of a deli shop located in the same mall as the liquor store came to her home and informed her that the liquor store had not opened yet, and that customers were gathered outside th e entrance. Ms. Reid was at first alarmed that she had been schedul ed to open the store th at day, but upon reflection realized that it was the grievor’s responsibility. He called the grievor’s home. When the grievor answered, she asked him if he planned to open the st ore. He asked her what the time was. When she replied that it was past 10: 30 a.m., he responded that he had not heard the alarm, and stated that he would go right over and op en the store. Ms. Reid, howev er, rushed over, still in her pyjamas, and opened the store shortly before the grievor’s arrival at 10:50 a.m.. In the meantime, the District Manager, Ms. Richardson-Norris had left home around 9:00 a.m. that day. Upon her return at about 1:00 p.m. she found a voice-mail from Ms. Kathy Kirken, an employee at the Iroquo is LCBO store, to the effect that the Iroquois store was unusually busy that day, and that customers were telling her that they drove over there because the Cardinal LCBO store was closed. Ms. Kirken’s voice-mail also stated that she had called the Cardinal store but no one was answering. 5 Ms. Richardson-Norris testified that as soon as she had retrieved the voice-mail, she called the Cardinal store “to find out what had happened”. The grievor answered. The conversation that followed is the “meeting”, the union claims, triggered article 26.3. The grievor testified that the telephone call la sted 20 to 30 seconds. During cross- examination, he agreed that during the call three questions were asked by Ms. Richardson- Norris. The first question was “How are you?” The grievor replied, “I am fine. Thank you.” Next, Ms. Richardson-Norris asked, “What happened this morning?” The grievor replied that it was too long to even begin to explain, but in sh ort he had not heard the alarm and had slept in. Then Ms. Richardson-Morris asked, “Is the stor e open now?” When the gr ievor replied that it was, she hung up. Based on these facts the union submits that the telephone conversat ion that took place between the District Manager and the grievor was a meeting within the meaning of article 26.3. The union referred me to Re Xanthopoulos 1372/01 (Abramsky). In that case, near the end of his shift, the grievor was asked to repo rt to the front office where several members of management proceeded to question the grievor in the presence of a union representative about “opening of cases”. The union argued that the discipline that followed was void ab initio because the employer had not complied with the requirement in article 26.3 that “the employee shall be made aware of the purpose of the meet ing and his/her right to union representation in advance of the meeting”. 6 One of the issues the Board in Re Xanthopoulos had to determine was whether the meeting in question was “for the purpose of disc ussing a matter which may result in disciplinary action”, within the meaning of article 26.3. The Board determined that it was, on the grounds that the meeting was part of the employer’s inve stigation into certain events on October 22, 2001 where the grievor had allegedly removed a gift flask from a case of liquor, which was contrary to policy. Union counsel submitted that the present case was similar because the telephone call was made as part of an investigation into the grievo r’s culpability relating to the late store opening. Counsel referred to the testimony by Ms. Richards on-Norris that she exp ected the grievor to “fess up”, i.e. to admit his fault and apologize for the store not opening on time, after the grievor had explained that he had slept through the alarm, as indicative of that investigative purpose of the call. Union counsel argued that when the Di strict Manager asked the grievor “what happened this morning”, there was a real possibility that the grievor may respond with inculpatory statements. Counsel referred me to the following passage at P. 10 in Re Simpson (supra): It is apparent that the employer’s position that where a meeting was only for the purpose of delivering a NOID, article 26.3 has no application was rejected by the Board in Re Franssen. It does not matter whether Mr. Poulin intended to discuss any particular subject with the grievor at the m eeting or whether the grievor in fact made any inculpatory statements. The intention of the article is to ensure that the grievor is not put in a vulnerable situ ation with the possibility that inculpatory statements may be elicited or volunteered, unless the grievor is afforded the rights stipulated in article 26.3. (Emphasis original) The employer’s submission was that th e telephone call was si mply the District Manager’s administrative response to an operationa l concern she faced, namely, that one of the liquor stores within her district may have not opened on one of th e busiest days of the year. 7 Counsel pointed to the evidence that when Ms. Richardson-Norris retrieved the voice-mail at 1:00 p.m. she had little information besides the h earsay message from an employee in a different store that customers were telling her that the Cardinal store was not open. She had no idea why the store had not opened at 10:00 a.m. as scheduled, or whether it had opened at all. It was, in the circumstances, logical that sh e would call the Cardinal store as she did. When the grievor answered, she greeted him saying, “How are you?” As District Manager, she had a right and an obligation to find out the reason why the store had not opened on time. So she asked, “What happened this morning?” When the grievor stated that he had slept through the alarm, she did not pursue that. She moved on to ask whether the store was open, which was the concern which caused her to make the call. As soon as the grievor replied in the affirmative, she hung up, without asking the grievor a nything about his lateness. On the particular facts before me, I concl ude that the telephone conversation was not a meeting within the ambit of article 26.3. The facts in the cases relied upon by the union are clearly distinguishable from the f acts before me. In Re Xanthopoulos (supra) at pp. 14-15 the Board wrote: The evidence clearly reveals that the October 31, 2001 was part of the Employer’s investigation into the ev ents of October 22, 2001. At the time the grievor was required to attend the meeti ng, the Employer had a videot ape of him removing a gift flask, a matter that certainly could lead to disciplinary action. If there were any doubt about that, the posting of Octobe r 26, 2001 states that “anyone caught removing any LCBO property, whether it be alcoholic in nature or not, from the warehouse, will be immediately terminated and all evidence turned over to the Durham Regional Police for further action.” On the evidence before me, the conclusion is inescapable that management intended their meeting with the grievor to be an opportunity to further their investigation, by questioning him about his in teraction with cases, generally, as well as specifically about Oc tober 22, 2001. The questions asked were to obtain information which they would consider – a nd, in fact, did consider – in deciding whether disciplinary action should be take n against him. The discharge letter of November 13, 2001 leaves no doubt that th e Employer relied on the grievor’s statements of October 31, 2001 to concl ude that he should be terminated. 8 Under the facts of this case, I conclu de that the meeting of October 31, 2001 was “for the purpose of discussing a matter whic h may result in disciplinary action being taken against the employee…” within the m eaning of Article 26.3 of the collective agreement. It is clear that in that case the Board had concluded that meeting in question was part of the employer’s investigation into the employee’s c onduct with regard to the removal of the gift flask, as part of its decision whether or not to discipline the employee. Re Simpson (supra), is one of many decisions of the Bo ard, where it has been held that where the employer meets with an employee to personally hand over a Notice of Intended Discipline” (NOID) article 26.3 must be complied with. The reason again is that, by the time the employer decides to issue a NOID, it must nece ssarily have turned its mind to the possible disciplining of the employee. Therefore, the meeting has “a disciplinary” purpose. In direct contrast, in the present case, th e District Manager had no idea as to why the store had not opened. When asked in cross-exam ination what the purpos e of her telephone call was, she replied “To ensure that the store is ope n”. She testified that she wanted to know why the store had not opened and to take whatever steps needed to ensure that it is opened. She stated that a liquor store may not open for many reasons, and gave the example of a power failure. She was calling the Cardinal store an d did not know who would be answ ering the call. She testified that Ms. Reid could have answered becau se she had come on shift at 1:00 p.m.. The critical evidence is th at when she asked what happe ned, and the grievor explained that he had slept in, Ms. Richar dson-Norris did not pursue that. If she had proceeded to question the grievor, for example, as to why he did not he ar the alarm or why he had not called in, it could 9 have been argued that at that point the convers ation had become “a meeting for the purpose of discussing a matter which may result in disciplinar y action.” However, on the evidence in this case, as soon as the grievor mentioned his sleep ing in, Ms. Richardson-Norris moved away from that subject and turned to her concern at the time, that is, to ensure that the store is open. As soon as she got the assurance that the store ha d in fact opened, she ended the conversation. While article 26.3 has been interpreted by th e Board quite broadly, it must also be interpreted sensibly so as not to preclude norma l interaction between managers and employees. If not, managers would not be able to manage the operations. It would do disservice to both managers and employees. The parties would not have intended such a result when they negotiated article 26.3. To illustrate, a manager hears a commotion and rushes to the scene. She observes an employee lying on the ground, apparently injured. She asks, “what happened?”. It is possible that one of the employees present at th e scene may make a statement in response, that may implicate himself. However, it would be absu rd to hold that the manager was not entitled to ask what had happened, without fi rst complying with article 26.3. th In Re Canada Safeway Ltd, (1992) 34 L.A.C. (4) 401 (McPherson) the collective agreement provided as follows: When an employee’s work performance is such that it may lead to discipline or discharge and is the subject of discussion between the employee and the Employer, the Union Steward shall be present. One of the issues for determination was wh ether the fact that a manager, upon meeting the grievor on a stairway, asked him “why are you late”, triggered the foregoing provision. At pp/. 411-412 the Board wrote: The issue we were faced with was: was the question asked by Kolba on the stairway a discussion which may have led to discipline as contemplated by art. 11. it 10 is our feeling that such questions are fr equently asked in the work place and we cannot think that art. 11 contemplates them as discussions such that a union steward would be required. If that were the cas e any question asked by an employer of an employee relative to work performance c ould be construed as maybe leading to discipline. We are not inclin ed to view the question itself as a discussion such that the subject, while work performance, may lead to discipline. In this case, had the employee’s answer been: I am not late, I wa s talking to the shop steward or my car had a flat tire, or I got caught in a tra ffic jam, or my daughter had to go to the hospital or an unlimited number of possible an swers, that would either have been the end of it or a “discussion” which may lead to discipline as contemplated by art. 11 would have ensued. In fact that is what happened, a meeting ensued, the subject of which may have and did lead to discipline. That “discussion” required compliance with art. 11. We believe that is the intent of th e article. To put it another way, we do not think that an insubordinate response to a question which turns it in to a discussion of work performance that may lead to discipline is the basis to construe art. 11 as being applicable at the time of the origin al work performance question. This is particularly so when we do not know if the original question may have led to discipline. Surely, that was not what wa s contemplated by the parties when they agreed to the article. In Canada Safeway, where the question “Why are you late?” was asked, any conceivable reply would have to do with the em ployee himself, because the question was about his own lateness. In the presen t case, even that is not the ca se. The question “what happened this morning?” could reasonably be expected to elicit an answer having nothing to do with the grievor. For example, the reason for the store not opening could have been a power failure, a fire in the store, an overnight break-i n at the store, or a flooding. The District Manager was entitled to find out the reason. At the time she could not have known whether the store had in fact opened late, and if so, whether the late ope ning had anything to do with the grievor. Second, and most important, once the District Manager got the answer from the grievor, that he had slept in, unlike in Canada Safeway “a discussion which may lead to discipline” (in the instant case “a meeting that may result in disc iplinary action) did not ensue. On the contrary, the District Manager dropped that subject comple tely and turned to her concern at the time, namely whether the store was open. 11 The disciplinary process was launched by the District Manager only subsequently, following the obtaining of statements from Ms. Reid and Ms. Kirken. The evidence suggests that the NOID issued to the grievor on Octobe r 12, 2005 was based on this information in that the NOID makes no reference whatsoever to th e telephone conversati on in question. The evidence supports the conclu sion that the telephone call was not pa rt of an inves tigation into the grievor’s culpability. I do not agree with the union’s argument that the fact that Ms. Richardson- Norris was expecting the grievor to take responsibility and apologize points to the contrary. The lack of an apology was a thought in Ms. Richar dson-Norris’ mind, after the grievor had stated that he had slept in. She felt that it would have been normal for an employee who had slept in and failed to open a liquor store on time to have apologized and she testified to that effect. The fact that she had that thought, however, does not s uggest that she was inves tigating the grievor at the time she asked the questions. For all of the foregoing reasons I find that the telephone call in question did not fall within the ambit of article 26.3. The union’s motion is dismissed. The hearing into the merits of the instant grievance shall continue as scheduled. th Dated this 5 day of July, 2006 at Toronto, Ontario Nimal Dissanayake Vice-Chairperson