HomeMy WebLinkAbout2016-0259.Jessett.16-12-13 Decision
Crown Employees
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GSB#2016-0259
Union#G18-16-TS
IN THE MATTER OF AN ARBITRATION
Under
THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT
Before
THE GRIEVANCE SETTLEMENT BOARD
BETWEEN
Amalgamated Transit Union - Local 1587
(Jessett) Union
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The Crown in Right of Ontario
(Metrolinx - GO Transit) Employer
BEFORE Gail Misra Vice-Chair
FOR THE UNION Amanda Hunter
Hicks Morley Hamilton Stewart Storie LLP
Counsel
FOR THE EMPLOYER Dean Ardron
Ursel Phillips Fellows Hopkinson LLP
Counsel
HEARING August 16, November 23, 2016
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Decision
[1] On February 26, 2016 the Union grieved the termination of employment of Clayton
Jessett (the “Grievor” or “Jessett”), a Transit Safety Officer, from Metrolinx (the
“Employer”). The Union seeks, among other things, the Grievor’s reinstatement to
employment with full compensation.
[2] At the outset of the hearing the Union made a preliminary motion that the dismissal
should be found to be void ab initio as a result of the Employer, in reaching its
decision to terminate Jessett’s employment, having relied on aspects of the
Grievor’s disciplinary record that should have come off by virtue of the application
of the sunset clause in the collective agreement.
[3] The Union called no evidence. The Employer called one witness, Steve Weir, in
support of its position that it had not relied on stale discipline on the Grievor’s
record.
[4] This decision addresses the preliminary motion.
BACKGROUND
[5] Steve Weir is currently the Manager of Transit Safety Operations. He has been
with Go Transit/Metrolinx for about 16 years. During that time he has been a
Transit Safety Officer, a Prosecutor, Senior Prosecutor, and Manager of
Compliance and Prosecution, before taking on his current managerial role in 2011
or 2012. Weir oversees all the Metrolinx uniformed special constables, who
provide a front line law enforcement function for Go Transit.
[6] Special constables, known at Metrolinx as Transit Safety Officers (TSO), are
appointed by the Ontario Provincial Police, and have similar roles and
responsibilities to those of a police officer. Although the Grievor reported to a
supervisor, who had a reporting relationship to Weir, Weir himself knew Jessett
and was familiar with his work record.
[7] On January 12, 2016, Weir was made aware of an incident that had occurred in
Union Station in which there was concern about how a woman had been treated in
the course of an arrest. He asked Randy Cowan, a supervisor who reports to
Weir, to conduct an investigation. Later that same day Weir saw the video of the
incident. In the video Weir observed a brief struggle between the Grievor and the
woman in question, Ms. Craddock. The Grievor with then observed with Craddock
when another TSO, Cindy Shigatoni, arrived at the scene. A third TSO, Leroy
Persaud, also arrived. The three officers had Craddock up against a wall, with the
Grievor in the middle. Jessett appeared to be trying to put handcuffs on Craddock
and he then kneed her twice as she had her back to him facing the wall.
Passersby appeared to be standing close by, and another officer appeared to be
speaking to them.
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[8] Weir was very disturbed by what he had seen as he observed that Craddock was
an elderly woman, and he thought it appeared that Jessett had escalated the
situation when two other TSOs were present. In his view, if Jessett felt he was not
able to reason with Craddock, he could have asked the female TSO present to
take over and let her try. Weir understood that Craddock had mental health
issues, and he knows that the TSOs are trained to try to de-escalate situations.
Having seen Jessett’s use of force on the video, Weir testified that he had
essentially made up his mind at that time that the Grievor was not an officer who
he wanted to keep on his security force.
[9] As noted earlier, Weir asked Staff Sergeant Randy Cowan, who had been a
homicide investigator before joining Metrolinx, to conduct an investigation into the
incident, and subsequently Jessett was put on a paid suspension pending the
outcome of the investigation.
[10] Cowan’s investigation report regarding the incident at Union Station issued on
January 22, 2016, and was made an exhibit in this proceeding. In his Executive
Summary to the report Cowan noted:
The investigation would be incomplete if the history of the subject
Officer JESSETT was not examined. Section 5 of this report contains
the lengthy history of complaints regarding aggressive behaviour and
questionable use of force. These complaints are not proven beyond a
reasonable doubt however they do seem to possess a common thread
of similarity and are numerous in frequency, none of the complainants
are known to each other but all have the ring of similarity. These
complaints have been brought to the attention of TSO JESSETT in the
past and action was undertaken, however the discipline has since
expired. JESSETT has been provided additional training in regards to
these incidents by way of debrief with Doug ASHTON our use of force
instructor.
Of particular concern is a recent April 2015 court decision where
JESSETT was criticized by a Provincial Court Judge for his judgment
in use of force and the Judge found him unreliable and not credible as
a witness, this case is published (Sec. 6). The Justice Melvyn Green
quotes:
“Whether a product of faulty memory or a tendentious and self-serving
accounting, Jessett presents as an unreliable witness. His
creditworthiness is profoundly compromised. Jessett, in my view,
would not have neglected the opportunity to ascribe any aggressive
conduct to the defendant.”
[emphasis in original]
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The manner in which JESSETT has conducted himself seems to
demonstrate a pattern of aggression and is not in keeping with the
standard of customer care expected by Metrolinx. …
[11] The Court decision was included in the investigation report (R. v. Cowan, [2015]
O.J. No. 2097). Cowan also included in his report a section titled “Summary of
Complaints Regarding TSO Clayton Jessett”. This section outlined 16 customer
complaints, seven of which apparently involved the use of force. The incidents
included four in 2012 (August 30, September 26, November 26, and December 17,
one of which was identified as involving the use of force); Seven in 2013 (January
23, April 8, May 23 (two incidents), June 2, June 18, and July 26, five of which
were identified as involving the use of force); and five in 2014 (February 1, May 1,
June 1, June 18, and July 16, one of which was identified as involving the use of
force).
[12] The Grievor’s work location file contained a September 10, 2014 letter of counsel
from Steve Weir regarding a pattern of negative customer complaints about
Jessett. Weir stated in the letter that he had met with Jessett on August 12, 2014
to discuss the record of customer complaints about Jessett over the previous two
years, which were noted as amounting to 21 incidents of negative customer
concerns of aggressive, unprofessional conduct, or rudeness, or complaints of
excessive use of force. Weir undertook to ensure that the Grievor received further
training to address the concerns that had been raised. This letter of counsel is of
significance to the Union’s argument.
[13] While it is unclear which customer complaints Weir had addressed with Jessett in
August 2014, it seems more likely than not that the customer complaints up to that
date would have been included. Thus, although Cowan listed 16 such complaints
in his investigation report, in fact it appears that Weir had indicated that the Grievor
had had 21 complaints made about him. It is noteworthy that there do not appear
to have been any further customer complaints made about Jessett following the
September 10, 2014 letter of counsel.
[14] By a letter dated February 25, 2016, Steve Weir, as the Manager of Transit Safety
Operations, dismissed Clayton Jessett from employment for cause. Weir noted
that the Grievor was a short service employee with less than five years service with
Metrolinx. The letter indicated that the reason for the termination was the manner
in which Jessett had responded to a disturbance call regarding a 70 year old
woman. Relying on video footage, Weir noted in the termination letter that the
woman had been walking away from the Grievor; Jessett had unsuccessfully
attempted to grab the woman’s arm; he had then radioed for assistance; after two
other Transit Safety Officers arrived, all three of them had pushed the woman into
the wall with enough force to cause the temporary wall to visibly shake; the Grievor
had placed a handcuff on the woman’s right arm, while another Officer had control
of the woman’s left arm; with the woman surrounded, the Grievor had delivered
two full knee strikes to the woman; and after gaining control of the situation, the
woman had then been placed under arrest.
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[15] The termination letter relied on the Grievor’s responses during the investigation
into the incident. In that investigation, Weir recounted in the letter that the Grievor
had stated that his actions had been appropriate and that he would do it again. He
had apparently further stated that he had delivered the two knee strikes because
he was becoming “tired” of dealing with the incident.
[16] Had Weir stopped his letter at this juncture, and terminated the Grievor’s
employment on the basis of what he believed regarding the incident and the
investigation, this would be a simple case of whether the Employer had just cause
to terminate the Grievor’s employment. However, it is what Weir stated thereafter
that the Union objects to, and maintains that he relied on stale discipline and
information, which should have been removed from the Grievor’s file and therefore
could not have been relied upon. Weir went on to state as follows in the letter:
You have been previously spoken to in relation to complaints of
excessive use of force and provided additional training. You have also
been spoken to about our concerns in relation to your aggressive, rude
and unprofessional behaviour when dealing with customers. You have
been provided with additional training for customer service.
Your actions and tendency to exercise aggressive force options has
been a troubling pattern within your short employment as a Transit
Safety Officer.
[17] The Union asserts that these paragraphs of the termination letter demonstrate that
the Employer relied upon the Grievor’s complaints record, including the September
2014 letter of counsel, in reaching its decision to terminate his employment. It
argues that the parties have negotiated strong and mandatory language in the
collective agreement regarding what may be held on a bargaining unit employee’s
file, and how long that material may remain there, and that the Employer violated
those provisions of the collective agreement in this case.
[18] In an email dated January 13, 2016, from Jeff Ekubor, Supervisor, Transit Safety,
to Nazia Rahim in Human Resources, Ekubor, speaking about Jessett, notes “the
leadership team need time to discuss concerns regarding his use of discretion and
previous history” (emphasis added). At that juncture that may not have been fatal
as one can expect that those in management familiar with the Grievor would have
been aware of his past history. As well, at that time, they may not have reviewed
his Human Resources file to see what, if anything, was on file for Jessett. In any
event, Weir had not seen this email until this proceeding, so he testified that it had
not influenced his decision-making.
[19] In a January 15, 2016 email from Steve Weir to Mary Proc, the Metrolinx Vice
President of Customer Service, regarding the Jessett incident, Weir noted “if this
was an employee without any previous concerns while I would still have grave
concerns my focus would likely be more to determine if rehabilitative efforts were
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warranted – as we have concerns with this employee previously – I worry we’ve
past that point.” From this email it is apparent that Weir had in his mind the
Grievor’s past history of customer-related incidents, and indicated that he was
weighing that in the balance when determining what to do about the January 12,
2016 incident. However, at that time the investigation was still ongoing. According
to Weir, his concern was that it appeared that in the incident Jessett had lost sight
of the fact that he was dealing with an elderly woman with mental health problems.
Weir himself had spoken to Jessett in the past about his judgment and taking
action, and he knew that others had too, so that was what he was referring to in his
email to Mary Proc.
[20] Steve Weir testified in his examination in chief that he had not relied on the
Grievor’s previous record in reaching his decision to terminate Jessett’s
employment. Weir testified that he had not looked at the Grievor’s work location
file, and that while there had been reference to the various customer complaints in
Cowan’s investigation report, he had not seen them at the time, and in any event,
he was aware from the investigation report that the letter of counsel on the
Grievor’s file had expired. As such, he had not considered the expired letter of
counsel when making the decision to terminate the Grievor’s employment. What
Weir knew from his management position was that Jessett had received lots of
training on how to deal with difficult situations, and he considered whether Jessett
could be retrained further.
[21] In cross-examination Weir admitted that his reference in the termination letter to
Jessett having been spoken to previously in relation to complaints of excessive use
of force, and regarding the Employer’s concerns about his aggressive, rude and
unprofessional behaviour when dealing with customers, had in part been related to
the customer complaints and the 2014 letter of counsel. Weir testified that these
references were also related to other factors, including a July 2013 incident that
had occurred at Exhibition Place, and about which the Employer had been
concerned regarding Jessett’s exercise of judgment. However, Weir maintained
that he made the difficult decision to terminate Jessett’s employment based on the
January 2016 incident itself.
[22] In cross-examination Weir conceded that when he had indicated in his examination
in chief that he had made the decision to terminate based on his “own knowledge
of Clayton”, his “personal awareness of Jessett”, and his “personal knowledge”,
what he meant was all the knowledge he had of the Grievor, which included the
customer complaints, the July 2013 Exhibition Place incident, the July 2014 letter
of counsel, along with his recollection of the multiple conversations he had had
with Jessett to try to get the latter onto “a proper path”.
[23] Following Jessett’s dismissal, some of the TSOs from his team were upset and
asked to speak to Weir about the situation. On February 29, 2016 Weir, Randy
Cowan and Jeff Ekubor met informally with three TSOs, Greg Pearson, Cindy
Shigatoni and Leroy Persaud, the latter two of whom had been with Jessett at the
January incident. Pearson’s view was that Jessett’s knee strike action had been
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consistent with the training that TSOs receive and as such he felt that the result
(Jessett’s dismissal) had not been appropriate. Weir told them that one could not
lose sight of the fact that they had been dealing with a 70 year old woman with
mental health concerns, and asked them how they would have felt if she had been
their family member who was treated as Craddock had been treated. Pearson
apparently admitted he would have been concerned if she had been his family
member, but he felt that everyone should be entitled to make a mistake, and
should get a second chance. In response to that comment Weir had asked
Pearson rhetorically whether he had had any customer complaints in his career,
and was told Pearson had had two. Weir asked Pearson whether he had had any
police investigations regarding the excessive use of force, and Pearson responded
that he had not had any. Weir’s sense was that the TSOs were concerned that
they may face the same outcome as Jessett had they exercised their discretion in
the same manner. Weir told them that each case is different, and that there were
too many variables to be able to give one definitive answer. After the meeting
Shigatoni indicated she had been comforted by the discussion and Pearson
thanked Weir for meeting with them.
THE ARGUMENTS
[24] The core of the Union’s argument is that the Employer’s decision to discharge
Jessett from its employ was in breach of the sunset provisions of the collective
agreement, therefore the discharge should be voided, and the Grievor reinstated to
employment with full compensation for all his losses.
[25] In particular, the Union argues that it had bargained a substantive right that limits
the Employer’s ability to rely on expired discipline, but that in this instance Weir
gave significant weight to events and documents that should have been removed
from the Grievor’s file. According to the Union, it would be impossible to parse out
how much one factor was relied upon over another factor, and that in light of Weir’s
evidence, it is clear that he in part relied on the customer complaints and letter of
counsel that had been on the Grievor’s record, but which should had been
removed by virtue of the operation of the sunset provisions of the collective
agreement.
[26] The Union argues that the sunset provisions give bargaining unit members
substantive rights, and therefore must be enforced. If they are not, they are of little
value to employees.
[27] In making its arguments the Union relied upon the following cases: Tri-Krete Ltd.
v. Labourers’ International Union of North America, Local 506 (Holness
Grievance), [2012] O.L.A.A. No. 302 (Trachuk); Spartech Colour – Stratford v.
International Association of Machinists and Aerospace Workers (Markle
Grievance), [2009] O.L.A.A. No. 497 (Rayner); Re Rexdale Mobile Truck Wash
(1981) Inc. and Brewery, General and Professional Workers’ Union, [1995]
O.L.A.A. No. 922 (L. MacLean); Canadian Union of United Brewery, Flour, Cereal,
Soft Drink and Distillery Workers, Local 304 v. Molson’s Brewery (Ontario) Ltd.,
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[1982] O.J. No. 1364 (Div. Ct.); Ontario Public Service Employees Union v. Ontario
(Metrolinx – GO Transit)(Kay Grievance), [2014] O.G.S.B.A. No. 97 (Gray); and,
AMAPCEO (Worku) and The Crown in Right of Ontario (Ministry of Finance), 2000
CanLII 20561 (ON GSB) (Dissanayake).
[28] The Employer argues that a letter of counsel is not discipline, but does not dispute
that letters of counsel have been addressed specifically in the sunset provisions of
the collective agreement. However, customer complaints (CITs) stay on record for
24 months. According to the Employer, even if a letter of counsel comes off the
record, the CITs remain on for 24 months.
[29] With respect to the July 27, 2013 “Jessett Incident Analysis” regarding the
Exhibition Place incident, the Employer argues that was not an adverse notation,
but rather was used for training purposes. There was no disciplinary aspect to the
training document.
[30] The Employer argues that the discharge was based on the January 2016 incident
itself, and that nothing that was within the ambit of the sunset clause was taken
into account in reaching the decision to terminate Jessett’s employment.
[31] According to the Employer, a supervisor who has known a worker for four years
cannot ignore what he knows about the person, whether it is their attitude, work
history, training received, and so on. The Employer argues that one must
distinguish between the thought process and consideration of the Human
Resources file. In this instance, it is argued that Weir had already made the
decision to terminate Jessett’s employment, and then was considering whether
there were any mitigating factors that should be considered. In that context he
considered the Employer’s expectations of its TSOs; the court decision that had
found Jessett’s testimony to be unreliable and had commented on his aggressive
behaviour; and Weir’s own awareness of the additional training that had been
provided to Jessett. The Employer asks me to consider that the incident was one
that was extremely serious and worthy of termination of employment as it was a
marked departure from the standard of care that Metrolinx expects of its
employees.
[32] The Employer relied on the following decisions: North Bay Regional Health Centre
v. Ontario Nurses’ Assn. (Sherritt Grievance), [2015] O.L.A.A. No. 171 (M.
Newman) and Re District School Board of Niagara and ETFO (Werezak), 2016
CarswellOnt 10387 (Dissanayake).
DECISION
[33] The relevant provisions of the collective agreement are as follows:
4.14(2) The record of all disciplinary action and/or any adverse
notation shall be removed from the employee’s file eighteen (18)
months following such incident giving rise to the disciplinary action. …
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Letters of counsel shall come off all corporate files, on application, after
12 months so long as the employee’s record remains discipline free
over that period.
…
4.14(5) Complaint Investigation and Handling
The procedure regarding the investigation of complaints from members
of the public will be based on the philosophy that our employees are
innocent until proven guilty and shall be as follows:
… [process to be followed]
(c) Nothing herein will prevent the employer from interviewing
employees concerning verbal complaints. However, verbal and written
complaints which have not resulted in disciplinary action may be kept
on record for a period of up to twenty-four (24) months. …
(d) should such record be used for disciplinary purposes then the
record shall be null and void as set out in Article 4.14(2).
[34] The Metrolinx Corporate Human Resources Employee Relations policy regarding
“Corrective Disciplinary Action” outlines the “types of discipline” as normally
including four progressive steps of discipline: verbal warning, written warning,
suspension and termination, but notes that some behaviour may require a more
firm response, and may entail skipping some steps of the progressive discipline
process.
[35] According to the Corrective Disciplinary Action portion of the policy, “whenever the
records of an employee’s Human Resources file are to be used to justify the
disciplinary action being taken, the records must meet the following criteria”, and
are subject to the particular applicable terms of the collective agreement:
1. They must form part of the employee’s Human Resources file;
2. The employee must be aware of the records on his/her file;
3. The employee must have received a copy of all disciplinary notices;
4. The date of the records must be within the appropriate time frame; and,
5. The records must directly relate to a similar act of misconduct or
the doctrine of culmination incident must apply.
(emphasis added)
[36] There is no dispute that at Jessett’s request, the Grievor’s Human Resources file
had been appropriately purged of the September 2014 letter of counsel and the
customer complaints, and there was nothing disciplinary on Jessett’s file.
However, Jessett’s work location file, kept in the Transit Safety Office, had not
been cleared. It contained the September 10, 2014 letter of counsel from Weir,
which noted that the Grievor had had 21 incidents of negative customer concerns
in the two years previous.
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[37] Pursuant to Article 4.14(2), letters of counsel should be removed from an
employee’s corporate file after 12 months as long as the employee remains
discipline free during that time, and if the employee has made application to have
the letter of counsel removed. There is no dispute that the Grievor had been
discipline free for 12 months after the September 10, 2014 letter of counsel, and he
had requested that it be removed from his file. As such, it should have come off all
his corporate files at some point on or after September 10, 2015, but before the
January 2016 incident.
[38] I agree with the Union that the sunset provisions in Article 4.14(5)(c) would be
applicable to the customer complaints on the Grievor’s file. If such complaints
have not resulted in disciplinary action, the parties have agreed that they may be
kept on record for up to 24 months. In Jessett’s case, all of the 2012 and 2013
customer complaints would have come off his record by July 27, 2015 at the latest
following 24 months from the last such complaint. Thus, even assuming without
finding that the September 10, 2014 letter of counsel about the customer
complaints up to that date did not constitute use of those records for disciplinary
purposes, those complaints had passed the 24 month period and should not have
been on his record in any manner whatsoever. Had Weir not already dealt with the
2014 customer complaints (all 5 of which had been filed by July 16, 2014) prior to
his meeting with Jessett on August 12, 2014, these five may still have been on
Jessett’s record by the date of the January 2016 incident, but there is no evidence
to support that view.
[39] As already noted, Weir had stated that the September 10, 2014 letter of counsel
dealt with all of the customer complaints against the Grievor up to that point. That
letter had been removed from the Grievor’s file by the date of the January 2016
incident. As such, there was nothing on the Grievor’s record at that juncture, a fact
that was noted in Cowan’s investigative report even though he alluded to the litany
of customer complaints about Jessett.
[40] For all of the above reasons, I am satisfied that by operation of the sunset clause
there was nothing on Jessett’s record at the time of the January 2016 incident.
[41] So what is to be made of Weir’s impugned references in the February 25, 2016
letter of termination? He clearly stated in the letter that Jessett had been spoken
to previously in relation to excessive use of force and had been provided with
additional training. He also stated that Jessett had been spoken to about the
Employer’s concerns in relation to Jessett’s aggressive, rude and unprofessional
behaviour when dealing with customers, and had been provided with additional
training for customer service.
[42] Weir was an honest and forthright witness and conceded that when he had written
these lines, he had in part had in his mind the numerous customer complaints and
the letter of counsel he had issued to Jessett after having met with him about the
customer complaints. Weir had been concerned about the pattern of the Grievor’s
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tendency to exercise aggressive force options and that Jessett seemed not to
benefit from retraining.
[43] I note that these were the same concerns that Weir had expressed to Mary Proc in
his January 15, 2016 email. Given the proximity of that email to the time of the
incident, on its own it may not have been of concern had there been no reference
to the Grievor’s history by the point at which Weir issued the letter of termination
on February 25, 2016. However, by February 2016 there is no doubt that Weir
knew that the Grievor had nothing on his record in his Human Resources file.
Nonetheless, the letter of termination contains references to Jessett having been
spoken to previously in relation to complaints of excessive use of force, and about
his aggressive, rude and unprofessional behaviour when dealing with customers.
Weir also noted in the letter of termination that Jessett’s “tendency to exercise
aggressive force options has been a troubling pattern within your short
employment as a Transit Safety Officer”. After these references (and reference to
the Grievor’s breach of various policies), Weir then went on to state that “as a
result the employment trust is irrevocably severed and you are hereby terminated
for cause”.
[44] In Tri-Krete Ltd., cited above, the arbitrator allowed a grievance and reinstated an
employee with full compensation where the employer had acknowledged in the
termination letter that it had relied upon the grievor’s past record when deciding to
terminate his employment. The arbitrator found that was a violation of the sunset
provisions of the collective agreement, and held that the discharge was null and
void. In accordance with the sunset clause in the collective agreement in that
case, and by operation of a settlement reached regarding some discipline, there
should not have been anything on the employee’s record on the date of
termination. In his testimony, the President of the company had stated that the
employee had been terminated for what he had done on a particular date, but he
also indicated that there had been many problems with the employee in the past,
and that the final incident had been “the straw that broke the camel’s back” (para.
31).
[45] Arbitrator Trachuk considered the jurisprudence before her, which entailed a
review of the same decisions that the Union has relied upon in the case before me.
I adopt her reasoning wherein she wrote as follows:
75. The sunset clause in the collective agreement is mandatory and a
substantive right. Breaching the terms of the settlement of a grievance
also violates the substantive rights of the grievor and the union. Such
provisions offer employees a chance to start with a clean slate and
provide the incentive to avoid further discipline. If an employer relies
upon prior discipline in the face of such a provision it does not have
just cause for the discipline imposed.
76. This issue has been considered by a number of arbitrators, by the
Ontario Divisional Court and the Ontario Court of Appeal. One line of
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cases supports the view that discipline or discharge is null and void if it
is imposed after an employer has relied upon prior discipline to which a
sunset clause should have applied. In those cases arbitrators have
reinstated the grievor with full compensation.
77. In Molson’s Brewery, supra, the grievor was discharged for
attempted theft. The dismissal letter referred to the grievor’s prior
discipline record. The collective agreement contained a provision that
prior discipline would not be referred to after one, two or three years
depending on the nature of the offence. The arbitrator had found that
the provision was directory only but the Divisional Court disagreed and
held that it was mandatory and that it had been breached. It stated:
That being so, the discharge of the grievor was not in accordance
with the terms of the collective agreement. In our view the
respondent company had no right under the collective agreement
to discipline or discharge the grievor in circumstances in which it
attached significance or weight to his prior discipline record.
78. It remitted the matter back to the arbitrator but said that the
respondent company could not discipline or discharge the grievor. It
directed the arbitrator to reinstate the grievor with full compensation.
79. The Court of Appeal upheld the decision of the Divisional Court. It
said that, “in exercising its power to discharge an employee under
Article 3, the company was bound by that article to conform to all the
clauses of the agreement.” It did find that the Divisional Court should
not have ordered the payment of full compensation to the grievor.
Instead it should have remitted the matter to the arbitrator to be
“considered in accordance with the reasons of the Divisional Court”.
However, as the reasons of the Divisional Court were clear, there can
be little doubt what they thought the compensation should be.
80. That line of reasoning has been followed in other awards
including Rexdale Mobile Truck Wash (supra) and Spartech Color-
Stratford (supra). In both of those cases, the result of the employer
relying upon “stale dated” discipline was that the discharges were held
to be null and void and the grievors were reinstated with full
compensation.
81. The company provided two awards in which the result of an
employer violating a sunset clause was for the arbitrator to determine
what the appropriate penalty would or should have been if that
discipline were not considered. This is sometimes called the
“proportionate” approach. In Air Transat (supra) the arbitrator upheld
the discharge but it does not appear that the Molson Brewery decisions
were provided to her. In the Crown in Right of Ontario, LCBO (supra)
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award, the union did not ask that the termination be nullified. In that
case, the arbitrator took the violation of the sunset clause into account
and reinstated the grievor with conditions.
82. Article 5.01(b) is an important substantive right in this collective
agreement. It is included in the management rights section of the
collective agreement as it modifies the company’s power to discipline.
The violation of that right is a serious matter for the union and the
grievor. The company’s reliance upon past discipline was a violation of
the collective agreement and cannot, therefore, be just cause for
discipline. As that was part of what the company relied upon to
terminate the grievor, the discharge is null and void. I agree with the
reasons of the arbitrators in Spartech Color-Stratford and Rexdale
Mobile Truck Wash (1981) as to why that is the correct approach. In
Rexdale Mobile Truck Wash (1981), the arbitrator stated:
I do not believe, in the absence of a clear contractual intent to
that effect, that it would be either a fair or a realistic approach to
seek to make exceptions based on a consideration of the degree
of influence which the stale discipline had in the employer’s
decision to terminate or otherwise discipline an employee. On the
basis of these considerations, and apart from any other
consideration, the approach advocated by Counsel for the
Employer, appears as a difficult, and I believe a fanciful
alternative, to the reasoning and approach accepted and applied
by the Divisional Court and the Court of Appeal in Molson’s. In
this respect, it is clear that the Court considered the discharge of
the employee for theft in that case to be void ab initio and
incapable of remedial resurrection. It did not seek to assess the
degree of influence which the stale discipline played in the
employer’s decision to terminate the employee. The Court held
that the effect of the employer considering the employee’s stale-
dated disciplinary record annulled the discipline completely, with
the result that the employer could not, “now discipline the
grievor by reason of the incident of February 20, 1981”.
[emphasis in original]
83. That reasoning was followed by the arbitrator in Spartech Color-
Stratford. He stated:
The issue now is whether I should follow the reasoning in the line
of cases advanced by the Union or the line advanced by the
Company. I prefer to adopt the decision of the Ontario Divisional
Court in the Molson case and the reasoning set out in the
Rexdale Mobile Truck Wash case for several reasons. First, a
substantive right has been breached. I adopt the divisional
court’s reasoning that if one were to hold the article to be only
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directory it would have little or no value. Second, I am not
persuaded by the reasoning in the three cases cited by Company
counsel. In two of the cases the decisions gave little or no
rationale for the conclusion reached. Third, none of the cases
referred to the Molson decision. Fourth, the Court in that decision
in remitting the matter back to the arbitrator stated in part “We
can see no final result…other than… the grievor be reinstated
with full compensation”. I note in that decision the discharge was
for theft and even in such a case the court was prepared to void
the discharge. Finally as pointed out in Rexdale the voiding of the
discipline takes away the difficult task of determining after the
fact how much influence the stale discipline had on the
subsequent disciplinary record.
[46] In the case before me the Employer has relied upon different decisions from those
before Arbitrator Trachuk. The District School Board of Niagara case, cited above,
raised the question of whether an employer could give counseling and guidance to
an employee without it being considered as discipline. That is not a question of
much import in the case before me because the parties have agreed that there is a
sunset clause that applies to letters of counseling, so whether such letters are
disciplinary or not is not a matter that I need to address. As well, the parties to the
collective agreement before me have agreed on what is to be done with customer
complaints, and when and how they come off an employee’s record. As such, I
have not found that decision to be helpful in my consideration of the substantive
issue before me.
[47] In the North Bay Regional Health Centre decision, cited above, it appears that
Arbitrator Newman had issued a preliminary award in which she had adopted the
proportionate approach rather than the void ab initio approach. However, since
her reasoning for doing so was not apparent in the decision submitted, I cannot
determine whether she had considered the Divisional Court or the Court of Appeal
decisions in Molson’s Brewery. What is clear is that the arbitrator had decided
that, in the context of a workplace harassment investigation, the sunset clause may
have no bearing, so she was of the view that a balancing of interests approach
may be necessary. The arbitrator needed to hear the facts of the case before her
before she could “determine whether there has been a breach of the sunset
clause, the nature of the breach in relation to the allegation, and its impact on the
resulting discipline, and to weigh all competing interests and relevant factors
before determining the appropriate remedy for a breach, if established” (para. 5).
[48] The case before me is not one involving the Occupational Health and Safety Act
and workplace harassment issues, and I am not of the view that there is any
reason to engage in a balancing of interests exercise. This case, much like that in
the Molson’s Brewery case, involves a serious issue: in that instance it was theft
from the employer, and in the case before me it is whether Jessett’s use of force
against a 70 year old woman was justified. Notwithstanding how serious the issue
is however, I feel constrained by the reasoning of the courts.
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[49] The language of the collective agreement before me is even stronger than the
language in the Molson’s Brewery collective agreement. In that case the parties
had agreed that previous discipline “would not be referred to” after the expiration of
various periods of time depending on whether there had been a suspension, or
some lower form of discipline. That suggests that the discipline may remain in a
worker’s file, but it could not be referred to. Yet the courts were of the view that the
language was mandatory, and that the employer could not rely on anything that by
operation of the sunset clause was stale.
[50] In the Metrolinx collective agreement the parties have used language that includes
“shall be removed from the employee’s file”; “letters of counsel shall come off all
corporate files, on application” (Article 4.14(2)); have agreed that if customer
complaints have been used for disciplinary purposes, then the record “shall be null
and void as set out in Article 4.14(2)”, and if not used for disciplinary purposes,
they may only be kept on record for a period of up to 24 months.
[51] Based on the language of Article 4.14, I have no trouble accepting the Union’s
assertion that the language is mandatory in nature. The parties have agreed that
the Employer must remove records from an employee’s file after the sunset period
has passed and conditions have been met, as in this case, where Jessett applied
to have the letter of counsel removed from his record following the passage of the
12 month sunset period during which he had remained discipline free.
[52] This sunset provision is a substantive right that the Union has bargained, and in
the absence of any language in the agreement that would dilute that right, it must
be given its plain and ordinary meaning. The only reason that the Union has
negotiated the removal of negative records from an employee’s file is so that such
records cannot be used against the worker if the conditions of the sunset clause
have been met. To permit management to remove negative records, but to still
rely on their respective recollection of the employee’s record, would completely
nullify the purpose of the sunset clause.
[53] In this case Weir admitted that he had considered the volume of customer
complaints about the Grievor and the letter of counsel that had been issued to
Jessett in 2014. In my view, as the decision maker, Weir had no right under the
collective agreement to give any consideration or weight to those issues because
they were off Jessett’s record.
[54] While I accept that Weir may also have had other considerations, including the
significant nature of the January 2016 incident itself, it would be much too difficult a
task to try to carve out Weir’s inappropriate consideration and to try to ascertain
what appropriate considerations may have led to his decision to terminate Jessett’s
employment.
[55] In all of the circumstances, and for the reasons outlined above, I am constrained to
uphold the grievance, set aside the discharge, and to order Jessett’s reinstatement
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to employment forthwith, with full compensation for lost earnings, benefits and
seniority. I remain seized in the event that any issues arise out of the
implementation of this decision.
Dated at Toronto, Ontario this 13th day of December 2016.
Gail Misra, Vice Chair