Loading...
HomeMy WebLinkAbout1994-0809.LAHAY.95_08_15 ONTARIO EMPLOYES DE LA COURONNE CROWN EMPLOYEES DE L'ONTARIO V- illi GRIEVANCE COMMISSION DE ~\6 <-- I V- , :v~ ~lr, 'v /1 L~ lZ..- SETTLEMENT REGLEMENT \) , , (t '" , BOARD DES GRIEFS ~ L'(\ t/ "t ,~ . (V\. t / 1 'I V . 1\'\ i? l- ' , 180 DUNDAS STREET WEST SUITE 2700, TORONTO, ONTARIO M5G lZ8 TELEPHONEITEU!PHONE (416) 326-1388 780 RUE DUNDAS OUES~_B_U.REAU 2700 TORONTO (ONTARIO) M5G 7Z8 FACSIMILE ITELECOPIE (476) 326-7396 - -- ---- ~ , GSB # 809/94 OPSEU # OLB148/94 - -- IN THE MATTER OF AN ARBITRATION -> ---.. .-.-..- :: - ~-~ --------- Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN OLBEU (LaHay) Grievor - and - The Crown in Right of Ontario (Liquor Control Board of Ontario) Employer BEFORE M Gorsky Vice-Chairperson FOR THE E Mitchell GRIEVOR Counsel Koskie & Minsky Barristers & Solicitors FOR THE R Drmaj EMPLOYER Counsel Hicks, Morley, Hamilton, Stewart, storie Barristers & Soliciitors HEARING June 5, 1995 \ D E CIS ION Ms Mitchell, counsel for the Union, made the following statements at the opening of the hearing with respect to the facts said to be material to her application for a declaration that the discharge of the Grievor was void ab initio 1 On June 13, 1994, Gordon Holmes, the Store Manager at the store where the Grievor worked in Orillia (Store #175), handed the Grievor a letter dated June 10, 1994, from Bob Porter, District Manager #15 of the Employer's Western Region (Exhibit 4) Dear Mr Lahay [sic] RE NOTICE OF INTENDED DISCIPLINE On receipt of this letter June 13, 1994 you are hereby relieved form duty with pay This action results from a security investigation in which you were observed using improper cashiering procedures on May 4, 1994 This is not a disciplinary response but as a result of these events disciplinary action may be taken against you Within three (3) calendar days from receipt of this letter, you are asked to submlt a written statement by registered mail to my attention, explainlng the matter mentioned above Should a meeting be scheduled following the receipt of your written statement, you are entitled to Union Representation, as discipllne may result If you choose not to respond, Management will act on currently available information A decision concerning this matter will be made known to you in due course (Emphasis in original) , 2 2 On June 14, 1994 Mr LaHay sent Mr Porter his written reply (Exhlbit 5) to Exhibit 4 3 On June 23, 1994, Ron Fisher, Regional Director, Western Region of the Employer sent Mr LaHay a letter dated the same day (Exhibit 6) by Priority Post, notifying him that his employment wlth the Llquor Control Board of Ontario was "terminated for cause, namely, improper cashiering procedures, effective this date, June 23, 1994 " 4 On June 20, 1994, Mr LaHay filed a grievance (Exhibit 2), which it was acknowledged related to his recelpt of the Notice of Intended Dlscipline (Exhiblt 4) in which he grleved Statement of Grievance (Clauses violated) Article 2 1 and 2 7 of OLBEU agreement and article 43 1 of Labour Relations Act also all of the artlcles of OLBEU, CECBA or Labour Relatlons Act pertalning to this grievance 5 The settlement desired was To receive all wages, beneflts and seniority lost To be made in hole [sic] 6 On June 28, 1994, Mr LaHay filed a further grievance (Exhlbit 3), which it was agreed related to his being dlscharged on June 23, 1994 This grievance, in its statement of grievance and relief requested was identical to Exhibit 2 ( 3 7 On August 8, 1994, Mr Fisher sent a letter (Exhlbit 8 ) to Mr LaHay in connection with his suspension grlevance (Exhibit 2) indicating that the parties had agreed that a third stage meeting would not be held and that his grievance would lIadvance to the Grievance Settlement Board II At the hearing it was agreed that the discharge grievance was also to go directly to the Grievance Settlement Board without the need to follow the other steps of the grievance procedure 8 Ms Mltchell wrote a letter dated August 25, 1995 (Exhiblt 7) to Mr Drma j , counsel for the Employer liRe Discharge grievance of David LaHay GSB #809-9411, in which she states We hereby notify you that, in addition to the Articles grieved in the grievance dated June 20, 1994, the Unlon also grieves that the employer has vlolated Article 26 3 of the Collective Agreement In particular, the Union also grieves that the employer did not offer the grievor union representation in advance of the meetlng of June 13, 1994, at which time the grievor was suspended The Union shall raise a preliminary objection at the hearing of June 5th, 1995, that the discipline is void ab initio It is eVldent that Ms Mitchell was referring to both grlevances although the only one submitted to arbitration was the discharge grievance 9 Art 26 3, referred to in Ms Mitchell's letter is as follows 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 meetlng and hls/her right to Union representation In advance of the (- 4 meeting The employee shall be entitled to have a Unlon representative at such meeting provided thls does not result in undue delay 10 By letter dated August 2, 1994, Jean Chaykowsky, Grievance Officer for the Union, wrote to the Grievance Settlement Board requesting a "hearing by the Crown Employees' Grievance Settlement Board in accordance with art 27 6 of the collective agreement, " with respect to the discharge grievance that is before me 11 As has been noted above, at the opening of the hearing, Ms Mltchell, raised the preliminary objection referred to in Exhiblt 7, based on Mr LaHay not having been made aware of the purpose of the June 13th meeting and of his right to Union representation as requlred by art 26 3 12 Mr LaHay had been employed by the Employer for approximately 10 years, first as a casual employee in the capacity of a store clerk between 1984 and 1989, in which latter year he became a full-time employee 13 It was noted that, if necessary, evidence would be called with respect to Mr LaHay's havin9 been disclplined while a casual employee without this fact having affected his being hired as a full-time employee I was advised that the previous discipline also related to improper cashlering procedures and ( 5 that this did not affect Mr LaHay's being hired as a full-time employee 14 Ms Mltchell indicated that, if necessary, evidence would be called that the Grlevor, on June 13, 1994, was working at his job as a store clerk when he was called into the Store Manager's office (Gordon Holmes) at approximately 11 30 a m Mr Holmes was said to have informed Mr LaHay that he was to attend with him at his office after closing his cash 15 After the Grievor closed his cash, he and Mr Holmes proceeded into the latter's office followed by three other persons, two of whom were LCBO inspectors Martha Dugas and David Hadlow, the third person being Police Sergeant Crockford, who was attached to the Orillia Police Department 16 After all of the persons In the room were seated, Mr Holmes handed Mr LaHay the letter of June 10, 1994 (Exhibit 4) It was Ms Mitchell's position that the meeting of June 10, 1994 represented the beginning of the process leading to the disciplinary response that culminated in Mr LaHay being termlnated 17 Mr Holmes gave Exhibit 4 to Mr LaHay at the beginning of the meeting and then asked him what he was doing on May 4th The Grievor was supposed to have replied that he dld not know what he \ 6 was doing then and inquired as to whether he was, in fact, working on that day 18 Mr Holmes then informed the Grievor that he had been observed on May 4, 1994 while engaged in improper cashiering procedures in the form of taking cash from the cash drawer, and he was asked if he had any explanation for his actions 19 The Crievor is supposed to have replied "I don't know - maybe I was making change for myself " 20 Sergeant Crockford is then supposed to have said "Is that your statement n 21 The Grievor is supposed to have responded "I ill not making a statement " 22 Sergeant Crockford then informed Mr LaHay that he was being charged with theft under $1000 00 and placed him under arrest and read him hlS rights 23 Mr Holmes then closed out the Grievor's cash drawer, following which Sergeant Crockford asked the Grlevor if he was prepared to co-operate, in which case he would not be placed in handcuffs The Grievor indicated that he would co-operate and left the store with the officer for the police station where he ( 7 was fingerprinted Later that day, Mr LaHay came back to store #175 and voluntarily turned ln his keys 24 Prior to the meeting of June 13th, an investigatlon of the Grlevor had been conducted by the Employer at store #175 and he was secretly observed and his actions videotaped by an LeBO investigation team The videotapes were reviewed toward the end of Mayor early in June of 1994, and the police were contacted before the meeting above referred to 25 Mr LaHay consulted with a lawyer on June 14, 1994, prior to preparlng his response to Exhibit 4 Although Exhibit 4 is dated June 10, 1994, it was handed to the Grievor by Mr Holmes on June 13, 1994 in the manner above recorded 26 After the Grievor met with Union representatives, Exhibit 2 was filed on June 20, 1994 27 There were no other meetings held by the parties prior to the Grievor belng discharged on June 23rd or thereafter to the date of the hearing on June 5, 1995 28 The criminal charges laid were dismissed on a prelimlnary motion ( \ 8 29 The position of the Dnlon was that the discharge of the Grievor was void ab lnitio because the language of art 26 3 of the collective agreement was said to give the Grievor a substantive right, and that failure on the part of the Employer to adhere to the requirements of that article vOlded the imposition of discipline 30 Accordingly, it was submitted that I had no jurisdictlon to hear the matter on the merits, and that I should declare the discharge to be void ab initio, and that I did have jurisdiction which respect to the assessment of amounts owing to the Grievor and other relief Mr Drmaj , counsel for the Employer, made the following staements with respect to the facts stated by Ms Mitchell ln support of her application 1 The Employer accepted most of the facts set out by Ms Mitchell However, there were certain of them which it did not fully accept 2 Mr Porter, the District Manager #15 responslble for store #175 in Orlllia, had had discussions with LeBO security personnel, as a result of which it was declded to conduct an investigation of the Grievor's conduct as a cashier through the use of vldeo recording and surveillance techniques Based on the \ 9 initiatives taken, the Employer's representatives concluded that Mr LaHay had been "implicated in a breach of cashiering procedures established by the employer " His actions were regarded as representing a "disciplinable event," as well as amounting to possible criminal activity in the nature of theft 3 Mr Porter had been informed about what had been observed and what was recorded on videotape concerning the "cashiering problems" and was also informed that the LCBO securlty personnel wished to proceed with the matter to see if criminal charges "could or should be laid" 4 A meeting was scheduled with representatlves of the Orillla Police Department, and until the meeting was held the issue of dlscipline was "put in abeyance " 5 On or about June 10, 1994 the investigators went to see Sergeant Crockford of the Orillia Police Department who was in charge of the investigation of possible criminal actlvit} 6 Mr Porter was then informed by the Employer's securlty personnel that there was sufficient evidence to lay crlminal charges 7 It was Mr Porter's responsibility to be present at meetings lnvolving dlscussions related to the laying of criminal charges ( 10 8 He was unable to attend the meeting of June 13 because of family problems and it was indicated that he would testify, if that became necessary, that that is the reason why the letter dated June 10th (Exhibit 4) was given to the Grievor on June 13 by Mr Holmes 9 On June 10, 1994, Mr Porter instructed Mr Holmes that he was to attend a meeting on June 13th with the LCBO investigators at the Orillia police station in order to view the videotape, at whlch time a determination would be made as to whether criminal charges would be laid 10 Mr Porter was also said to have advised Mr Holmes to pick up a letter in Mr Porter's office in Barrie, being the Notice of Intended Dlscipline (Exhibit 4) 11 Mr Holmes was said to have picked up the letter early in the mornlng of June 13 and then to have met with the LCBO lnvestigators at the police station in Orillia along with Sergeant Crockford where they reviewed the videotape and other detalls of the investlgation It was at that time that Sergeant Crockford is supposed to have informed Mr Holmes and the investigators that in his view there was sufficient evidence to lay crimlnal charges against Mr LaHay A discussion then took place relating to the way that the investigators, Mr Holmes and I \ 11 Sergeant Crockford would return to the store and confront and arrest Mr Lahay 12 When Mr Holmes returned to the store along with the investigators and Sergeant Crockford, he asked another employee to replace Mr LaHay and instructed the Grievor to come to his office 13 Mr Drma j did not agree with Ms Mitchell's recitation of the order of events at the meeting of June 13th In partlcular, he dld not agree that the arrest took place only after the Notice of Intended Discipline was given to Mr LaHay It was the position of the Employer that the Grievor was told who the other persons at the meeting were immediately upon their entering the room and the purpose of their being present, including the handlng to Mr LaHay of the Notice of Intended Discipllne (Exhlbit 4) It was suggested by Mr Drma j that the Grievor was escorted to the station where he was then placed under arrest and charged 14 Mr Drmaj stated that evidence would be called, If necessary, that prlor to the meeting of June 13th Mr Porter, who had a good relationship with the Zone Representative of the Union, Keith O'Toole, advised Mr O'Toole that an investigatlon was taklng place and that some actlon would be taken Mr Drmaj \ 12 dld not indicate that Mr O'Toole was told what the action was about or that it related to the Grievor 15 After Mr Porter returned to his office In Barrie on June 13, 1994, he telephoned Mr Holmes and was told that the Grievor had been arrested by Sgt Crockford and that Mr Holmes had given the Grievor Mr Porter's Notice of Intended Discipline (Exhlbit 4) 16 Mr Porter then informed Mr O'Toole what had taken place 17 Evidence would be called, if necessary, that Mr O'Toole never raised any issue about his not being present at the meetlng of June 13th, nor did he ask for a further meeting or for "anything else " 18 The procedure followed by the Employer when discipline may be lmposed is to issue a Notice of Intended Discipline, which asks the employee to whom it is given to furnish an explanatlon for his behaviour within three days 19 After receiving the employee's response, or if none lS forthcomlng, the Employer then issues discipllne, If warranted During the period of the operation of the Notice of Intended Discipline, the employee continues to be paid ( 13 20 After the Grlevor flled his grievance (Exhlbit 2) , the letter of dlscharge (Exhibit 6) was issued by Mr Fisher, and that was the only discipline assessed in relation to the incident before me In response to Mr Drmaj's recitation of the Employer's Vlew of the facts, Ms Mitchell stated 1 As a zone representative of the Union, Mr O'Toole was responsible for filing grievances in the field and conducting second stage grievance meetings Third stage grievance meetings are conducted at the "next layer," which was identified as a duly authorized representative of the Union, as deflned ln s 27 l(a) of the provisions with respect to the grievance procedure contained in the collective agreement 2 In this case, subsequent to the June 13th meeting, there were no further meetings of any kind between the parties with respect to this matter where the Union might have informed the Employer of its posltion or amended the grievance 3 There were no pre-hearing meetings held, as it was agreed that there was no point in doing so in dlsmlssal cases and there were no meetings where the Union had an opportunity to elaborate . on or amend the grievance ( 14 4 The Union has no knowledge of any dlscussions between Mr O'Toole and Mr Porter, and, in any event, It was the Union's position that any dlscussions between them dld not meet the requirements of art 26 3 5 Ms Mitchell did not disagree with the order of the June 13th meeting as it was described by Mr Drmaj Her position was that whichever order is accepted the Employer chose to conduct a meeting where there was a discussion of a matter which might result in disciplinary action being taken against the Grievor, whlch meeting "triggers" art 26 3 6 Where a meeting such as the one that was conducted on June 13th takes place, it was normal for the Employer to notify the Union and to offer Union representation to the employee involved Submissions Made by Way of Argument on Behalf of the Union. 1 Article 26 3 grants a "substantive" rlght to employees and is not merely procedural 2 The language of art 26 3 makes clear that the nature of the protection afforded to an employee is mandatory in nature, and that the Employer had a mandatory obligatlon to advise the Grievor of hls right to Union representatlon ( 15 3 The Grievor was ordered by Mr Holmes to attend a meetlng with respect to "discussing a matter which [might] result ln disciplinary action being taken against [him] " even if Mr , Holmes did not fully articulate the full purpose of the meeting 4 The Grievor was given a Notice of Intended Dlscipllne and charged with a criminal offence and arrested 5 The Employer could have separated the criminal matter from the employment offense, but both of them were intermingled at the meeting 6 It was clear that the Employer was, at some point proximate to the meeting, going to discipline the Grievor in the light of the lntention to lay criminal charges, even if he was not informed that this was going to happen It was emphasized that art 26 3 did not use the words "shall result in disciplinary action" but instead used the words "may result in disciplinary action " From the manner in which the meeting was conducted it was clear that both criminal and disciplinary action might be taken as a result of the meeting 7 Mr Porter was also aware of the investigators' opinion that criminal charges should be laid against the Grievor \ 16 8 It was "inconceivable" that the meeting of June 13th was other than a meeting that might result In disciplinary action being taken against the Grievor, with the Employer treating the incldent as representing a "very serious offense tI Accordingly, the Employer had an obligation to make Mr LaHay aware of the purpose of the meeting and of his right to Union representation, in advance of the meeting 9 There was no impediment to the Employer informing the Grievor prior to the June 13th meeting that there was going to be a meeting on that date to discuss an investigation with respect to his conduct on May 4, 1994 and of his right to Union representation at the meeting 10 The nature of the conversation between Mr Holmes and the Grievor, when the Grievor was asked to come to a meeting, dld not convey to the Grlevor any information that might cause him to request Unlon representation 11 There was no suggestion that the provision of Dnlon representatlon would "result in undue delay " 12 The language of art 26 3 was said to be "broad" so that any meetlng relating to an lnvestigation of a matter lnvolving improper cashiering activities fell withln its purvlew ( 17 13 Where a provision is substantive and the language mandatory, failure to adhere to its provision "voids the disclpllne " 14 Reference was made to the case of Hickeson-Langs Supply Co. (1985) , 19 LAC (3d) 379 (Burkett) , where the majority of the board stated (at p 392) Although the meeting conducted between the company and Mr Laidlaw was part of an investigation, the fact remains that it was a meeting with management withln the meaning of e~ther art 6 02 or art 6 06, and that Mr Laidlaw was denied the representation to which he was entitled, the purpose of which has been described in Re Canadian Canners Ltd. And Int'l Assoc of Machinists (1974) , 5 LAC (2d) 323 (Brandt) [at p 325] , as to ensure that the employee is fully advlsed of his rights and also to facilitate some discussion which might lead to an amicable settlement of the dispute, short of any formal action being taken In the face of the meeting having been conducted without Mr Laidlaw having union representation, as he was entitled to, and consistent with the cases that have held that discipline subsequently lmposed in this case lS null and void if the employee's contractual rlght to due process is ignored, we hereby flnd that the discipline that was subsequently imposed in this case is null and void The parties negotiate certain safeguards with respect to the manner in which discipllne is to be imposed and/or the employer is to confront the employee with respect to any other matter under the collective agreement These safeguards are In the nature of a contractual due process While It may seem unfair to the employer to have its actions found to have been null and void, the due process provisions are central to the representatlon provided under the collective agreement and, in our view, there is no other way to give real meaning to them 15 Employees may be unable to properly act for themselves because of the stress of the moment Reliance was had on Queen \ 18 Elizabeth Hospital (1988), 2 LAC (4 th) 1 (Davis) In that case, at p 6, the arbitrator stated such representative will be in a better mental state at that moment to cope with the issue than the grievor and will be able to provide the grievor with timely advice 16 It was submltted that a Union representative might have intervened on the behalf of the Grievor and made submisslons which raised mitigating factors 17 It was submitted that the provisions of art 26 3 are to protect the Grievor, and it is not my role to conjecture about whether the presence or absence of a Union representative would have affected the result 18 It was submitted that Mr O'Toole's knowledge or lack of knowledge did not alter the obligation of the Employer under art 26 3 Mr Porter is alleged to have informed Mr O'Toole about an investigation and that some action would be taken In this case, the Grievor's rights under art 26 3 were not honoured and these rights must be honoured in advance of the meeting when he must be made aware of the purpose of the meeting and his right to Union representation 19 Evidence of a vague conversation between Mr O'Toole and Mr Porter does not meet the requirements of art 26 3 Mr O'Toole was the wrong person for the Employer to communicate with in \ 19 order to achieve compliance wlth art 26 3 In any event, there was no indication of a clear "direction" to Mr O'Toole by Mr Porter as to when the meeting would take place and who and what would be involved, and there was no indication that Mr O'Toole passed on to the Grievor any information that might arguably satisfy the Employer's obligation under the latter article 20 At the very least, Mr LaHay should have been told about the fact that Mr O'Toole had been spoken to and informed about the nature of that conversatlon - which did not happen 21 Even if the Employer may delegate the responsibility to inform an employee as is required under art 26 3, here, the facts are vague, and it is not even certain whether the name of the employee under investigation was made known to Mr O'Toole 22 Although the Union did not raise the violation of art 26 3 until Ms Mitchell wrote Exhibit 7 to Mr Drmaj on May 25, 1995/ art 26 3 is a substantive rlght and the Employer cannot rely on its own wrongdoing as a defense to the breach of the artlcle In any event, there must be a clear indication of walver of the employee's right under art 26 3 23 There was nothlng in the facts to demonstrate that the Grlevor was aware that he had the rights afforded him under art ( 20 26 3, and he could not be expected to waive a right that he had not been made aware of 24 Because of the way in which the matter proceeded, the necessary II groundwork II had not been establlshed by the Employer to support a claim of waiver In the circumstances, there was no way for the Unlon to have amended the grievance to raise a specific violation of art 26 3 The only meeting at which the right could be raised was that of June 13, 1994 The way in which the Employer approached the matter indicated that there was nothing more to be done after the meeting of June 13 except to notify the Grievor that he was being discharged, which was accomplished through the mail 25 Reference was made to the language of the agreement in Hickeson -Langs, at p 380 6 02 Representation An employee shall have the right of the assistance of a Union Representatlve In any matter under this Agreement concerning him and which requires his meeting with Management 6 06 A Steward shall be present in any formal meeting between an employee and the Company, where the matter discussed is to become part of the employee's performance record 7 02 For a grlevance to proceed to arbitratlon (as outlined below) the Union or the company, as the case may be, shall specify the provlslon \ 21 or provisions of thlS agreement that are alleged to have been violated There is also the following signed letter of understanding This will confirm the agreement between the Company and the Union on November 9, 1983 concerning the administration of Section 6 06 of the Collective Agreement between Hickeson-Langs -- Toronto Branch and Teamsters Union Local 419 In the administration of Section 6 06, where a steward is not readily available, a senlor bargaining-unit employee of the employee's choice who is readily available will be present (in lieu of a steward) in any formal meeting between an employee and the Company 26 Reference was also made to the statement of the facts found at pp 380-1 The company, an institutional suppller of foods, had been encountering a theft problem at the time the grievor was discharged and had responded by increaslng the surveillance of its premises The sequence of events leading up to the discharge of the grievor is not dlsputed Mr Laidlaw was seen coming out of the warehouse at about 3 00 a m during the course of his Shlft on Friday, March 8, 1984, and placing some goods in his car He was then brought back into the warehouse for questioning by Messrs Lloyd (loss prevention) and Baird (district manager) Mr Laidlaw denied any wrongdoing and eventually agreed to go to his car in the presence of the two company officials Twenty-five salmon steaks and four tins of lobster meat were found in Mr Laidlaw's car He was again brought back into the warehouse and police were called without there being any further discussion between Mr Laidlaw and the company officials While waiting for the police to arrive Mr Laidlaw asked for and was given the telephone number of Mr Sean Floyd, the union business agent He was allowed to call Mr Floyd and to speak wlth him from a separate office Shortly thereafter the police arrived and Mr Laidlaw was arrested He was taken to the police station where, he was asked if he wished to retain a lawyer, he asked and was allowed to call Mr Floyd Mr Floyd, therefore, spoke with the grievor on two occasions durlng the ( \ 22 night in question Mr Floyd arrived at the warehouse after Mr Laidlaw had been taken to the police station ~ The union dld not advise the company of ltS intention to rely on art 6 of the collective agreement until the day before the hearing Employees have had the benefit of unlon representation at the investigation stage in the past, but this is the first theft case 27 Reference was also made to the statement of the board at p 386 We now turn to the doctrine of waiver The doctrine of waiver has been applied by labour arbitrators in circumstances where, in the face of a procedural or technical defect in the filing or processing of a grievance, the affected party continues to process the grievance without objection In these circumstances it has been held that the affected party, by its silence, has "waived" its right to rely on the procedural or technical defect 28 And to statements at p 387 Notwithstanding the judgment of the court [in Re Candl e and Stevenson et al. (1984) 5 D L R (4th) 676, 44 0 R (2nd) 656 (Ont Div Ct ) ] arbitrators should be extremely careful in applying the doctrine of walver to the exercise of substantive rlghts Thls is so because employees are not usually represented by counsel during the grievance procedure and sometimes not at arbltratlon, and because the statutory purpose of labour arbitration is to resolve labour disputes arising from alleged breaches of a collective agreement As distinct from a flnding of waiver in respect of a procedural lrregularity, whlch then allows the grlevance to be heard on its merits, a findlng of a waiver of a substantive right limlts the scope of the hearing on the merits and/or deprlves an employee of a rlght to which he or she would otherwlse be entitled to rely upon 29 Further at pp 388-90 We are of the view that Mr Laidlaw was entitled to unlon representation under art 6 06 Artlcle 6 06 stipulates that "a steward shall be present in any private meetlng between an employee and the company, ( 23 where the matter discussed is to become part of the employee's performance recordll Where the matter to be discussed at a meeting between an employee and management offlcials is the company's suspiclon that the employee has engaged in an act of theft, the matter discussed, if the company suspicions are confirmedl is to become a part of the employee/s performance record, as it did in this case We do not accept that so long as the meetlng is investigatory in nature it cannot be a meeting within the meaning of art 6 06 The employer in Re Williams et al. and Treasury Board (Post Office Department) (1979) I 22 LAC (2d) 94 (Abbott) I attempted to make the distinction between investigatory interview and a disclplinary interview as is made in thls case The relevant clause in the collective agreement in that case was entitled IIRight to representation in case of disciplinary action" and provided that IIAn employee summoned for disciplinary reasons shall have the right to be accompanied by a representative of the Unionll The arbitrator found in that case that the lnterview of an employee by two postal inspectors in connection with the investigation of a fraud relating to overtime was a meeting at which the employee was entitled to union representation The arbitrator in that case reasoned as follows [p 99] I am quite satisfied, on the eVldence before me, that the postal inspectors lntended thelr meetlng with Mr Williams to be an opportunity to further their investigationl by obtaining from hlm admissions of culpability or exculpatory informationl and that they would take into account whatever they obtained fromMr Williams In declding whether dlsclplinary action should be taken against him This is exactly the sort of lnterview of which an employee should have advance notice and should have the opportunity to be accompanied by a union representative It iSI therefore I precisely the sort of situation contemplated by the parties to the agreement In cIs 10 04 and 10 06 We adopt this reasoning A meeting at which an employee is summoned to answer questions from company offlcials with respect to whether or not he has commltted a theft wherel If the company/s SUsplclons are confirmedl the matter will become part of an employee/s performance record lS a formal meeting wlthin the meaning of art 6 06 It is required, thereforel that a steward be present There was no steward present at the meeting between Mr Laidlaw and the two senior company officials in the early morning ( I 24 hours of March 9, 1984 The company is free to lnvestigate suspected improper or unlawful conduct to whatever extent it desires However, when it decldes to confront an employee, as happened in thls case, the employee is entitled to union representation under art 6 06 of the collective agreement Alternatively, the grievor was entitled to representation under art 6 02 Mr Laidlaw was required to meet with management when he was apprehended in the partlng-lot and, clearly, even if we accept that the meeting was in connection with an investigation and that a distinction can be made between an investigatory interview and a disclplinary interview for purposes of activating art 6 06, it was nevertheless a meeting dealing with a matter under the collective agreement at whlch he was requlred to attend and, therefore, a meeting within the meanlng of art 6 02 We are satisfied, therefore, that Mr Laidlaw was entitled to the representation provided under art 6 02 when he met with management in the early hours of March 9, 1984 30 Reference was also made to Milnes Fuel Ltd. (1981) , 29 LAC ( 2 nd ) 427 (Brown) , where the provision relied upon was The steward shall be present when an employee lS dismissed, suspended or disciplinary actlon taken In that case (at p 428) the unlon took the posltion that the dlsciplinary actlon taken by the employer was vOld ab lnitio because there was no meeting concerning the grievor's discharge at whlch a steward was present 31 In Milnes, at p 430-1, rellance was had on Re Budd Automotlve Canada Co. Ltd. (unreported) , February 1972 (Brown) The provislon in the collective agreement in the Budd case, supra, was as follows 7 01 Any employee who is to receive a written warning, suspension or discharge shall be removed from his work statlon and taken to an offlce He may, if he so desires, request and obtain the presence of his steward to ( 25 represent him during such an intervlew During such an interview the employee will be advlsed of the offence committed The arbitrator in that case, in dealing with that provision in the circumstance where the union alleges that by non-compliance of the company with such a provision, the penalty warning was invalid, stated The parties have developed a grievance procedure to handle alleged violatlons of the collective agreement and have agreed to certain time-limits within which the procedure must be followed In that regard art 6 10 provides In essence that if the grievance is not carried on to the next step within the time-limits, or within the limits otherwise agreed by the parties, the grievance is automatically settled on the basis of the last decision given on the grievance form This provides for a penalty in the event of non- compliance with this procedure and in light of the most recent arbitration decislons in similar situations, it would follow that these are mandatory provisions which must be strictly applied These form part of the rules of procedure for grievances There is no such penalty provisions in the collective agreement covering the failure to comply wlth arts 7 01 and 7 02, but lS that not simply a recognitlon that these provisions do not form part of the rules of procedures, but have been recognized by the parties as matters of right The company has the substantive right under the collective agreement to impose discipline against its employees In the lmplementation of that right, it is provided that the company must comply with certain rules In the interest of the employees concerned which are set out In arts 7 01 and 7 02 I flnd these provisions to be completely independent of what may follow In the grlevance procedure resulting from the company's inltlal action and are the basic rlghts of an employee He has been given by the parties the right to receive the charge against him in the privacy of an offlce, the right to know the penalty within the time stipulated in art 7 02 and the right of representatlon These are substantive rights which must be accorded to the employee if the right of the company to initiate discipline is to be given weight The fallure, then, to allow these rights to the employee is not a failure to follow procedure In my view the parties have balanced the basic ( \ 26 rights of the company and the employee for the purpose of discipline by which the exercise of the company's rights to discipline must be met wlth the employee's right It is not a matter going solely to the assessment of the penalty but goes to the very action of discipline itself Article 7 01 provides that the charge shall be made known to the employee and by art 7 02 the company assesses the penalty and lS obligated to advise the employee wlthin the time provlded The damage from the breach of such provision would be the negation of the employee's basic contractual rights to the protectlon provided by the partles in disciplinary matters The arbitrator went on to find that art 7 01 was not procedural but, provided a substantive right to the employee which could not be denied by the company, and must be strictly applied In the event of the failure by the company to grant such rights, the imposition of discipline was void ab initio 32 Further In Milnes, at p 434, the majorlty of the board stated The clear lntent of this article in our view lS, that when an employee is as in this case, being dismlssed and that decision "has been taken, he is entitled to be told or advised in the presence of his steward which might be for the purpose of representatlon at that time or for protecting any other rights he may have with regard to the grievance procedure, but the nature of that protection afforded to the employee by the partles is representational in effect To omit that right, In our opinion, is an omisslon of a substantive right and not merely a procedural step under the grievance procedure, default of which might be the subject of relief through the provislons of the Labour Relatlons Act, R S 0 1970, c 232 The agreement does not provide that In the absence of this step belng fulfilled the disciplinary action is a nulllty, but the effect of failure to comply with a substantive right of a mandatory nature contalned in the collectlve agreement conflicts with the baslc rights of the employees in relation to the right of the company subject to the term of the collective agreement, to lmpose dlscipllne ( 27 33 To the same effect are Re Toronto Western Hospital (1985) , 19 LAC (3rd) 191 (M G Picher) at p 191 and p 201, Re St. Joseph's Hospital (Brantford) (1987) , 28 LAC (3rd) 408 (P C Picher) at pp 411 and 419, Re Weetabix of Canada (Mfg. ) Ltd. (1987) , 31 LAC ( 3 rd) 444 (Draper) at p 447 (where the board also stated "Waiver connotes knowledge of a right and the intention to surrender or abandon it ") , Re Queen Elizabeth Hospital (1988) , 2 LAC (4th) 1, at pp 2 and pp 4-8, Re Glengarry Memorial Hospital (1990) , 11 LAC (4th) 325 at p 329 and p 331, Re Valdi Foods (1987) Inc. (1990) , 16 LAC (4th) 318 (Brandt) at p 323; and Re Brewster Transport Co. Ltd. (1992), 26 LAC (4th) 240 (Tettensor) 34 It was submitted that the fact that the Employer paid the Grievor from the time he was no longer at work on June 13th to the tlme of his discharge on June 23rd represented no "real dlstinction " It was submitted that the discipline commenced on June 13th, and reference was made to the words "that as a result of these events dlsciplinary action may be taken against you," in Exhlblt 4 If the payment to an employee in the circumstances of . the Grievor during a period of suspension could change the result, then this would "take the guts out of art 26 3 " The "disclaimer" that disclpline might follow cannot assist the Employer ( 28 Mr. D rma J made the following submissions by way of argument , on behalf of the Employer. 1 That the issue before me is whether art 26 3 is procedural or substantive 2 If substantive, it covered such a narrow range of situations that it is not applicable to the facts before me and is merely dlrectory 3 If I found that art 26 3 was substantive and mandatory, then it concerned only the notice of intended discipline The meeting of June 13 did not represent a "disciplinary encounter" so as to void the discharge if the meeting was not carried out in accordance with the requirements of art 26 3 4 If I found that the meeting of June 13, 1994 was disciplinary ln nature and wlthin the purview of art 26 3, then Exhlbit 4 related only to the June 13th suspenslon that was grieved in Exhibit 2 and not to Exhiblt 3, the discharge grievance 5 The discharge of the Grievor that followed the fillng of Exhibit 2 led to an additional grievance being filed on June 28th (Exhibit 3), which represented an entirely different matter from ( 29 the Gr1evor's suspension meted out in exhibit 4, and was I unrelated to the meeting of June 13th 6 There was no requirement for a meeting to be convened in order to deal with the actual discharge or discipline of the Grievor Accordingly, the Letter of Discharge (Exhibit 6) was valid If I rejected all of the other arguments made on behalf of the Employer, only the suspension might be declared 1nvalid 7 The Union, by its conduct in not raisi~g the matter relating to art 26 3 until May 25, 1995, waived any breach of that article by the Employer 8 If I rejected the argument of the Employer based on waiver, then any remedy afforded the Grievor should cons1der when the obJection was ra1sed (on May 25, 1995) and restrict rel1ef to the per10d from that date 9 A substant1ve r1ght in the Grievor 1S only created by clear and unequivocal language Reference was made to such substantive rights as the right to Union representation during the gr1evance procedure and in connection with seniority rights, where the language of the collective agreement was said to be clear and unequivocal 10 Reference was made to art 27 3(a) (ii) ( 30 Unless otherwise agreed betwe~n the employee and hls/her supervisor, a meeting in respect of an employee's complaint shall only be attended by the " employee and hls/her supervisor 11 This provision lS found in art 27, which is headed "Grievance Procedure " Art 27 3 is headed "Stage 1 (Complaint Stage) " and art 27 3 (a) (i) provides, inter alia An employee who has a complaint or a dlfference shall discuss the complaint or difference with his/her supervisor, as designated by the Employers 12 It was submitted that art 27 3(a) (ii) specifically deals with the subject of who is to be present at the meeting referred to This was said to be unlike the provisions of art 26 3, where there is no specific reference to who must be present at the meeting 13 It was submitted that art 26 3 should not be "lsolated" from the rest of the grievance procedure, where references to who should be present at meetings are "clear and unequivocal " 14 It was submitted that the facts of the case before me should be dlstinguished from cases where the meetlng involved a disciplinary response The case before me was said to involve a situation where there might be a disciplinary response, but not necessarlly so 15 It was submitted that it was not possible to create a "partial substantive right 11 ( 31 16 It was submitted that an interpretation such as the one sought by the Union would dlscourage meetings that is, if it was always necessary for an employee to have Union representation 17 Art 26 3 lS directory and procedural and has as its purpose assuring, where certain matters arise that might requlre the impositlon of discipline, that the affected employee is made aware of the purpose of the meeting and of his/her right to Union representation in advance of the meeting However, failure to adhere to the requirement would not necessarily void any subsequent discipline that is meted out 18 An examination of the facts demonstrates that the meeting was not called for the purpose of "discussing a matter which [might] result in dlscipllnary action," and hence was not one envisaged by art 26 3, but was for the purpose of effectlng the Grlevor's arrest in the Store Manager's office rather than in the "open store, " so as to insure privacy, and also to take him into custody, there being no obligation to hold such a meeting as is referred to in art 26 3 19 Handing Exhibit 4 to the Grievor at the meeting was only peripheral to the purpose of the meeting, which was to effect his arrest and to enable him to be taken into pollce custody l. 32 20 Where a meeting is held for a purpose other than IIdiscussing a matter which may result in disciplinary action being takenll or for combined purposes, where the issuance of a Notice of Intended Discipline is peripheral to the main purpose, art 26 3 can only be viewed as belng procedural 21 The word IIshall" as found in art 26 3 does not always create a mandatory obligatlon 22 Art 26 3 can be interpreted as furnishing an option in favour of the Grievor, but the question of undue delay, being undefined, leaves the matter of calling in Union representation in the hands of management 23 If I conclude that the provisions of art 26 3 confer a substantive right on the Grievor, then it is necessary to examine the facts to see if they fit within the provisions of that artlcle It was submltted that on the facts before me I should not flnd that there was a meeting for the purpose of discussing a matter which might result in disciplinary action being taken This was said to be reinforced by the statement in Exhlblt 4 IIThis is not a disciplinary response II 24 If I find that the meeting of June 13 was one called for the purpose of discussing a matter which might result in discipllnary action being taken, then the action then taken by the Employer ( 33 was grieved by Exhibit 2 on June 20th, and that grievance relates to the suspension effected by Exhibit 4 A "technical" fallure to comply with the requirements of art 26 3 in connection with the meeting of June 13, 1994 cannot affect the valldity of the subsequent discharge of the Grievor In Exhibit 6 The "technlcal" failure only affected the suspension, which was a separate issue that was grieved as such 25 If I find that the suspension meted out in Exhibit 4 was the kind of "disciplinary action" envisaged by art 26 -:l and was void -' ab initio, then the Grievor received "all wages, benefits and senlority lost " The dlscharge meted out by Exhiblt 6 was an entirely separate matter unrelated to the meeting of June 13th 26 If I flnd that the discharge of the Grievor, meted out in Exhibit 6, is a matter that flows directly from the meetlng of June 13th, then any breach of art 26 3 had been waived and can no longer be pursued 27 If I find that art 26 3 is applicable to the facts of thls case, then Mr O'Toole and/or the Grievor knew or ought to have known as early as the Notice of Intended Discipline that the meeting of June 13 would involve a dlscussion of matters which might result in the Grievor's being disciplined It was submitted that either or both of them were aware of the investlgation and of the videotaped eVldence It was submitted ( 34 that the Grievor had a duty to raise the provislons of art 26 3 when he was told about the events that were being lnvestlgated and it was evident that discipline might follow The Grlevor should have raised the provislons of art 26 3 when Exhlbit 2 was filed and later when Exhibit 3 was filed, and at the latest by August 8, 1994 when the Union waived the right to go through the further stages of the grievance procedure and agreed to proceed directly to the Grievance Settlement Board (Exhibit 8) 28 Reference was made to Alcan Wire and Cable, an unreported case decided by the majority of a board chaired by S A Tacon on July 20, 1989 29 The provision of the collective agreement in the Alcan case consldered by the board was 25 07 Where a counselling or disciplinary meetlng is to take place between a supervlsor and a bargainlng unit employee and such meeting shall result in a written disciplinary notation, then such meeting shall, where practicable, and if the employee so requests, take place in the presence of a Union steward 30 The union in Alcan argued that the employer failed to comply with the procedural steps required in order to properly termlnate the grievor, and hence the grievor should be reinstated "in consequence of this procedural defect " 31 Reference was made to the statement of the majorlty of the board, at p 11 of Alcan ( 35 In the instant case the board views the questlon of a procedural defect as one which may properly be raised at the hearing for the first tlme only on the basis that, if that argument is ultimately successful, the relief granted should not predate the point at which the question was first ralsed To hold otherwise, would result in substantial prejudice to the company Prior to the hearing, the company was unaware that question was in issue Yet, it is the company which mlght well be financially liable by way of a compensation order for that entire period To so limit the remedy, however, would adequately address the lssue of prejudice (Emphasis in original) 32 Reliance was also had on the statement of the majority of the board at pp 12-13 of Alcan The board must next consider the language of Article 25 07 to determine whether that article confers, as the union contends, a substantive right to the presence of a steward in the circumstances of this case so that the absence of the steward renders the subsequent termination void The relevant portion of Article 25 07 lS worth repeating here" then such meeting shall, where practlcable, and if the employee so requests, take place in the presence of a union steward" The board notes that the practicability of a union steward's attending was not in issue The phrase "and if the employee so requests" must be given meaning and that meaning is clear - an employee request is a precondition to the representational right QUlte simply, the right lS not absolute nor can it be said that the language confers an obllgation on the company to brlng the "optlon" to the employee's attention prior to, or at the commencement of, the meeting see Weston Bakeries Llmited (Chatham, Ont.) (unreported, September 26, 1988) (MacDowell) and the cases cited thereln While it lS conceivable that there may arise circumstances wherein those words should not be given effect if, for example, the company were to be estopped from relYlng on that precondition, that is not the case herein The grievor had his thirty day appraisal in February and knew the nature of the meeting scheduled for March 30 At the February meeting, his performance was reviewed and his deficiencles discussed Most tellingly, the grievor knew that ''If he didn't pull up his socks, he 36 would not last " It cannot be said that the grievor could not have anticipated a possible outcome of the March meeting would be his termination There lS no dispute that the grievor did not request the presence of a union steward at the meeting The board has no authority to amend the collective agreement to modify language from a precondition which has not been satisfied to an absolute right to representation or an affirmative obligation on the company to inform the grievor of the wording of Article 25 07 or his option to request a union representation at the meetlng Thus, the board rejects the union's posltion on the first preliminary motion 33 Reliance was also had on Pharma Plus Drug Marts Limited, an unreported case decided by N B Satterfleld on December 20, 1993 In the Pharma Plus case, the grievor was terminated for breach of a company rule Every sale must be registered and a receipt given to the customer Fallure to register sales will result in termlnation 34 One of the issues raised in the case involved art 31 01 (a) Where an employee is to be interviewed by the Company or Security regarding discipline or dismissal, the employee may request the Union Steward or another bargaining unlt employee to be present to observe the discusslon and such request shall be granted 35 The alleged breach of art 31 was said by the union ln Pharma Plus to void the discipline imposed ab initio 36 At P 8 of Pharma Plus, the arbitrator stated With respect to clause 31 01 (a) , whether the clause falls within that group of clauses WhlCh arbitrators have said creates substantive rights, or whether it falls within the group which are procedural only and therefore directory, I find that there has been no breach of clause 31 01 (a) of the collective agreement The grievor is a steward and was aware of \ 37 his collective agreement right to the kind of representation described in clause 31 01(a) The meaning of the phrase" the employee may request " is clear in the context of the clause If an employee wants the benefit of the representatlon described, it is a precondition to that right that the employee asks to be represented by a Unlon steward or another bargaining unit employee The right to that representation is not absolute because of that precondition 37 Reference was also made to The Steel Company of Canada (Rayner) , an unreported decision dated August 29, 1990, where the grlevor had been discharged by a registered letter dated August 10, 1987, and where, at the outset of the hearing, union counsel indicated that there was a preliminary objection claimlng that the dlscharge was null and void because the employer had failed to follow art 9 11 of the collective agreement 38 Art 9 11 of the Steel Company agreement is as follows 9 11 - No employee other than a probationary employee shall be discharged without first being glven seven (7) days notice except in cases of serious misconduct, when discharge shall be effectlve immedlately An employee who is being notified of his/her discharge may elect to have a departmental Chief Steward or Steward present In the event that a departmental Chief Steward or Steward is not present at the time the employee lS notifled of hls/here [sic] dlscharge, the Company will notify the Chief Steward of all immediate dlscharges or notice of discharge given to employee in his/her department, excepting probationary employees, with [sic] forty-eight (48 ) hours after such discharge or notice of discharge has been effected Grlevances relatlng to notice of discharge or discharge may be initiated at Step No 2 of the Grievance Procedure and may be appealed dlrectly to Step No 3 39 At pp 4-5, the board stated \ 38 The first part requires 7 days notice of discharge (probationary employees apart) except in cases of serious misconduct The part has no bearing on the objection before us and can, at this point, be disregarded although for completeness it should be noted that in an earlier award, Re Stelco 18 LAC ( 3d) 353 (Kennedy) this language was held to be directory and procedural and lack of notice dld not render the discharge a nullity The second part, and the part relied on by the Union, permits an employee who is being notlfied of his discharge to have a Union Steward present The third part requires the Company to notify, within 48 hours, the Chief Steward of all immediate discharges or notice of discharge (save probationary employees) "in the event that a departmental Chief Steward of Steward is not present at the time the employee is notified of his/her dlscharge" (emphasis added in Stelco) The latter two parts of Article 9 11 were canvassed in an earlier award between the parties (McLaren, January 1984) but that case does little to assist the Board However, it does note that there is no obligation on the Company to put an employee to an election to have a Union representative present The gist of the Union objection is that the Company had to have a meeting with the grlevor and that the grievor had to have an opportunity to elect to have Union representation present Mr Smlth said that the right to an election would be meaningless if there was not an implied right to a discharge meeting He also suggested that the grievor's refusal to attend the Company's premises in possible violation of hlS ball order was reasonable We agree with the latter submission but not the former 40 At pp 5-6 of the Steel Company case the board concluded Implicit, indeed a cornerstone, in the Union's argument is that there must be a meeting before discharge can be effective although Mr Smith conceded that there may be very unusual Clrcumstances where a meeting cannot be held However, in the normal case a meeting must be held and the employee glven his electlon He relied on the leading case of Re Mllnes Fuel Oil 29 LAC ( 2d) 428 (Brown) where the agreement required that an employee to be dlscharged "shall be ( 39 removed from his work station and taken to an office" where he could elect to have Union representation This case was followed in Re Clarke Institute 20 LAC (3d) 193 (Knopf), Re Corp. of the City of Toronto 24 LAC (3d) 115 (Joliffe), Re St. Joseph Hospital 28 LAC (3d) 408, and Re Automotive Industries (unreported, Rahim, 1988) Although the Mllnes Fuel case appears correctly declded on the language of that collective agreement, the other decisions may be doubtful to the extent that the decisions do, or do not, determine a threshold issue That issue is whether the agreement requires a disciplinary meeting to be held In the Clarke Institute case and the City of Toronto decision the answer would appear that a meeting was required and where a meeting is required, if the collective agreement permits or requires Union representation, failure to allow such representation may render the discharge a nullity However, we must first decide whether a meeting is required under the terms of this Collective Agreement If there is no need for a meeting, the election of Union representation is not ln issue and the discharge cannot be challenged solely on the basis of Article 9 11 In Re Cambridge Towel 66 0 R (2d) 793 the Dlvisional Court sounded a cautionary note ln overextending the reasonlng such as was found in Mllnes Fuels and declarlng discharges a nullity because of failure to comply with all notification or notice provlsions of the Collective Agreement It lS trite to say that a Board should not stand on procedural technicalities and fail to hear the merits of the dispute unless the Collective Agreement makes it clear that any procedure set out therein must be followed as a conditlon precedent to the action in dispute no matter which side raises the technicality However, ln this case, we do not believe that there has been even a technlcal violation of Artlcle 9 11 41 In the Steel Company case, although the grievor had been requested to attend at the plant for an interview before he was discharged, no such interview meetlng took place for reasons which are not materlal here ( 40 42 After stating that the union could only succeed if the board found that art 9 11 required a discharge meeting, the board stated, at p 7 If no such meeting is required, there has been no violation in the instant case As previously stated nowhere ln Article 9 11 is there an express statement that a meeting be held This lack of expression is contrasted with the language used for notice of discharge to the employee, i e , "No employee shall be discharged without 7 days notice" and for notiflcation to the Chief Steward "the Company will notify the chief steward within 48 hours" Indeed, the very wordlng of the Article contemplates that there may be discharges where there is no steward present This lack of stewardship could result from either the employee electing not to have Union representation or because there has been no discharge meeting Both possibilities exist under the present language However, there is no language that mandates a meetlng (Emphasis in orlginal) 43 The final submission made on behalf of the Employer was that even if it failed in all of the above submissions, and the discharge lS declared to be vOld ab initio, there is nothlng to prevent the Employer from properly repeating the exercise and relsSUlng "appropriate discipline " It was submltted that requiring such a procedure did not "make a lot of sense in thlS kind of case " See, Board of Governors of the Riverdale Hospital (1983), 11 LAC 267 (Brandt) 44 At pp 277-8 of the Riverdale Hospital case, the board stated In reaching my conclusion I am mindful of the fact that this award does little more than compensate the grievor and reinstate him as a probationary employee wlthout any right to grieve in the event that the hospltal ( 41 should, upon this award, set out to accomplish the termination of the grievor in accordance with the requirements of art 13 02(a) 45 Reference was also made to VS Services Ltd. , Vending Services (1990) , 17 LAC (4th) 339 (Brandt) That case dealt with the question, apparently one that had not been dealt with in the arbitral jurisprudence, whether or not, once it has been determined by a board of arbitration that a purported discharge was null and void for failure to comply with a provision in the collective agreement requlring union representation on the imposition of discipline, an employer can, in the absence of any new and different ground for discharge, discharge the employee again in full compliance with the provisions requiring union representation 46 After finding that his earller Riverdale Hospital case (at p 334) lndicated "by implication at least, that there may be circumstances ln which it is quite proper for an employer to correct lts earlier errors and act again on the basis of the same events as had earlier motlvated lt to act," the board concluded that this was a case where the employer should be permitted to properly carry out the requirements of the collective agreement and terminate the employee Argument in reply made on behalf of the Union 42 1 The meeting of June 13, 1994 was not just for the purpose of facilltating the arrest of the Grievor If that were the lntention, Sergeant Crockford could have been furnished with an offlce or with the home address of the Grievor, and it was unnecessary for anyone associated with the Employer to be in attendance The Employer did not choose to do that, but lnstead brought the Grievor into the Manager's office at his home store and related (through the Manager) the details of an offence that clearly could be the subject of discipline, in the presence of two investigators for the Employer as well as Sergeant Crockford of the Orillia Police detachment 2 When the parties negotiated art 26 3, they envlsaged a situation where, if the Employer chose to have such a meeting as lS there described, the employee involved had certain rights to be informed in advance of the meetlng of its purpose and of hlS right to Union representation 3 It was submitted that there was a discussion in WhlCh Mr Holmes informed the Grievor that he had been observed involved in lmproper cashierlng procedures on May 4, 1994 and asked him for an explanation to justify his observed behavlour Because of the way the Employer to chose to conduct the meeting, it represented one where dlscipllnary action mlght be taken against the Grlevor, whether or not it had another purpose \ 43 4 Although Exhibit 4 states that lt is not disclplinary in nature, this does not matter because art 26 3 refers to "a matter which may result in disciplinary action " The matter, in this case, might, and, in fact did, result in disciplinary action being taken against the Grievor 5 Reference was made to Weetabix of Canada (Mfg. ) Ltd. (1987) , 30 LAC ( 3 rd ) 444 (Draper) , where the language of the agreement was said to be similar to that of art 26 3 9 09 An employee when called to a meeting with Management, where disciplinary action may result, shall have the right to have a Steward or Union official ln attendance, however said employee shall also have the right to waive the necessity of the attendance of such Steward or Union officlal 6 The arbitrator in the Weetabix case found, at p 448, that art 9 09 was mandatory and conferred a substantive rlght and that the company's failure to comply wlth the artlcle rendered the dlscharge of the Grievor void ab initio 7 In response to the Employer's argument that lf there was a meeting wlthin the meaning of art 26 3 it was not dlsclpllnary in nature and only related to a suspension pending further investigation, it was submitted that the discharge of the Grlevor that followed was the natural result of what had taken place at the meeting and was talnted by the violation of the Grlevor's rights under art 26 3 The fact that there were no further meetings demonstrated that the Employer did not need to have a ( 44 further meetlng to obtain information That information was already within its knowledge on June 13, 1994 8 Because the provisions of art 26 3 are substantive in nature, an allegation that the Grievor's rights under that article had been violated can be raised to the date of the hearing D1Scussion and Decision 1 The Union, having raised the issue as to whether art 26 3 had been violated, has the burden of proving that that was the case 2 Because there was no written agreed statement of facts, it was necessary for me to review my notes to see whether there was a difference between the versions of the facts as presented by the parties 3 It is not unusual for parties to argue motlons such as the one before me without eliciting Vlva voce eVldence, but to argue on the basis of agreed facts, either in writlng or as presented to the board orally In this case the later was done After Ms Mltchell had reviewed the facts from the Unlon's perspectlve, Mr Drma j , while stating that he agreed with most of those facts, ( 45 indicated that he took issue with some of them and presented facts that he believed had not been fully dealt with by Ms Mitchell, which additional facts she did not dispute 4 In his opening statement, Mr Drmaj stated that there was an investigation concerning certain shortages from cash in Store 175 in Orillia where the Grievor worked Mr Porter, the District Manager, was said to have had discussions with LCBO security representatives, and a decision was made to engage in certain investigation procedures surveillance of the Grievor, including surveillance through the use of video cameras It was as a result of the implementation of these investigation procedures that the Grievor was said to be implicated - on May 4, 1994 - ln a breach of the Employer's cashiering procedures, which breach Mr Drma j identlfied as being both a "disciplinable event and also [as representlng] criminal activity " 5 Mr Drmaj stated that the criminal activity represented the "possibillty of theft" having occurred Mr Porter was said to have been lnformed about the result of the vldeo surveillance and that the LCBO security personnel wished to proceed to recelve advice from the police as to whether criminal charges "could or should be lald" because of what the Grievor was said to have done ( 46 6 According to Mr Drmaj's version of the evidence, the question of discipline was said to have been placed ln abeyance when, on June 10th, Mr Porter was glven the information relating to the investigation, above referred to 7 Mr Drmaj's version of what took place was that on June 10th Mr Porter had told Mr Holmes, the Store Manager, that he was to attend on Monday June 13, 1994 with the LCBO investigators at the Orillia pollce station to view the videotapes of the Grievor and be present while a determination was made as to whether criminal charges should be laid and "how this was to be done " Mr Holmes was also said to have been told by Mr Porter that there would be a letter for the Grievor in Mr Porter's office in Barrie (Exhlbit 4), which Mr Holmes was to pick-up and deliver to the Grlevor on June 13th 8 Mr Holmes is supposed to have attended on Sgt Crockford at the police statlon in Orillia on the morning of June 13, along with the two LCBO investigators, at which tlme Sgt Crockford revlewed the videotape and the details of the investigatlon Sergeant Crockford then informed Mr Holmes and the investlgators that there was sufficient evidence to lay charges agalnst the Grievor It was then decided to return to the store ln order to confront and arrest the Grievor l 47 9 Mr Drmaj stated that there was a dispute between hlmself and Ms Mitchell as to exactly what had taken place at the "meeting" on June 13, 1994 10 Mr Drmaj stated that he did not agree with Ms Mitchell's description of what had taken place at the meeting that a discussion with respect to matters relevant to the "Notice of Intended Discipline" occurred first, with the "flow" of the meeting then proceeding to the charging of the Grievor wlth the offence of theft under $1000 00 and his arrest He raised, but did not pursue, the question as to whether the Grievor's arrest took place first 11 Mr Drmaj stated position was that immedlately before anything else happened at the June 13 meeting the Grievor was told who the other persons at the meeting were, the purpose of their presence, was then given the letter of June 10, 1994 (Exhlbit 4), and was then escorted to the police station by Sgt Crockford, charged and placed under arrest 12 I note that Mr Drmaj , when he said that the Grievor was lnformed of the "purpose" of the meeting, did not elaborate on what the Grievor was exactly told about the "purpose " 13 Ms Mitchell stated that after the persons in the manager's offlce were seated on June 13, 1994, Mr Holmes gave the Grievor ( 48 Exhibit 4 The Grievor was then said to have been asked by Mr Holmes "What were you dOlng on May 4th?" and Mr Drma j did not deny that this statement was made Nor did he deny the statement attributed to the Grievor in response to the question That he did not know what he was doing on that day and could not recall if he was at work at that time Mr Holmes was then said to have advised the Grlevor that he was observed engaged in improper cashiering procedures, in that he was observed taking cash from the drawer and was asked if he had any explanatlon for his actions The Grievor is then said to have responded that he did not know what he was doing, and that he might have been making change for himself 14 Sergeant Crockford is then supposed to have asked the Grievor if that was his statement, and the Grlevor is supposed to have replied that he was not making a statement, and it was at thlS time that Sergeant Crockford took over the meetlng and arrested the Grievor For the purposes of this case I find that there lS no particular significance in the Grievor's response that he was not making a statement 15 I note that Mr Drma J did not say that he was disagreeing wlth the recitation of the facts as given by Ms Mitchell but stated that he wished to add some additional facts and reorder some of the events to show that they had taken place in a dlfferent order ( 49 16 I am satlsfled that the meeting had a dual purpose to arrest the Grievor and "for the purpose of discussing a matter WhlCh [might] result in discipllnary actlon being taken agalnst" him It was unnecessary to hold a meeting in the Store Manager's office just to arrest the Grievor or to have present the Manager and the two LCBO investlgators Questions related to a purely crlminal investigation could have been asked by Sergeant Crockford without anyone else being present The Grievor could have been arrested at his home or taken to the police station and there placed under arrest without the further involvement of Mr Holmes or the two LCBO investigators The questions that Mr Holmes put to the Grievor were more consistent wlth his lnterest in securing information related to the Grievor's breach of the Employer's cashiering procedures and to facilitate the process leading to the lmposistlon of discipllne Whatever other purpose the meeting may have had, as conducted by Mr Holmes it also became a meeting to discuss "a matter which may result in dlsciplinary action being taken" against the Grievor If the meeting only was concerned with confronting the Grievor wlth respect to his commission of a criminal offence, it would be expected that only Sgt Crockford would be ln attendance and ln complete control of the meeting The evidence was otherwlse, and I am satisfied that the meeting had two purposes one related to an employment offence that could lead to dlsclpline, the other belng related to the commission of a criminal offence ( 50 17 Although there is nothing in the collective agreement that requlres the Employer to hold a meeting "for the purpose of discussing a matter which [might] result in disciplinary actlon" against an employee, once such a meeting is held it must be held in compliance with the provisions of art 26 3 See The Steel Company of Canada case, above, at pp 7-8 This conclusion does not render the second part of the Article nugatory If a meeting is convened, and if the employee is denied Union representation after electing to have representation, the rationale of Re Milnes Fuel could operate Surely, the purpose of this part of the Article is two-fold flrst, it informs the Union of the discharge but that object is again achieved by the thlrd part of the Artlcle Second, lt ensures that the employee, on the spur of the moment, does not make a statement that may inculpates hlm or her However, if there is no meeting, there is no need to protect against inculpatory against inculpatory statements In conclusion then we believe that Article 9 11, or at least that part relied on by the Unlon has no application if no dlscharge meeting is held and that Article 9 11 does not require such a meeting as a condition precedent to dlscharge If a meeting is held and the employee denied representation, Re Milnes Fuel may then apply 18 Although lt is necessary to pay close attention to the wordlng of the particular provisions of the article said to have been violated so as to lead to the concluSlon that the disclpllne lmposed is vOld ab initio, I am satisfied that art 26 3 represents a substantlve and not procedural requirement in accordance wlth the llne of cases followlng Mllnes Fuel Oil Ltd. ( above) ( 51 19 In the Alcan case, because the clear language of the agreement created no such obligation, the arbitrator found, at p 12, that the article in question did not to confer "an obllgation on the company to bring the 'option' to the employee's attention prior to or at the commencement of the meeting " 20 In the Pharma Plus case, the board, at p 8, held that it did not matter whether the article in question created substantive rights or fell within "the group which are procedural only and therefore directory," because it was "a precondition to that the right that the employee asks to be represented by a union steward or other bargaining unit employee " 21 In the Steel Company of Canada case, there was, as in this case, no requirement that the Employer hold a meetlng in that case to deal with the discharge of the employee At p 7, the board stated if no such meeting is requlred, there has been no violation in the instant case But, as was noted above, the situation is different when a meeting is held and the subject matter of the meetlng falls within the provisions of the article In the Steel Company case, no meeting was held, and there was " no need to protect agalnst lnculpatory statements " (At pp 7 - 8) 22 Art 26 3 creates a substantlve rlght which can only be waived by the employee involved That rlght lS to make the ( 52 affected employee " aware of the purpose of the meeting and hls/her right to Union representation in advance of the meeting " The Grlevor never walved his rlghts Even if Mr O'Toole was able to do so, I cannot find this to have been the case In any even t , I cannot find that Mr O'Toole had sufficient information about which employee was involved or of the exact nature of the matter being investigated to be able to make an informed declsion In the Riverdale Hospital case, above referred to, the board referred to the following article (13 02(a)) found in the collectlve agreement An employee may be discharged or suspended only for just cause When an employee is discharged or suspended he shall be glven the reason in the presence of a representative of the Union Such employee and the Union shall be advlsed promptly in writing of the reason for such discharge or suspension 23 The board stated at p 275-6 Since the rlght provided for in art 13 02 (a) is a rlght which lS personal to the employee lt could be waived by the employee 24 At P 276, the board stated that it was insufficlent that the union representative had been advised that dlSClplinary action was going to be taken and then to ask her to remain ln the area ln the event that the grievor wished asslstance "The fairer procedure would have been to ask the grievor, in the presence of the steward, whether or not he wanted union representation " ( 53 25 In thlS case, the Grievor was not made aware of the purpose of the meeting at the outset, nor was he informed of his right to Union representation 26 The right to Union representation lS not a mere formality In drafting art 26 3, the parties had in mind the possibility that through Union intervention the meeting might result in the Employer taking actions different from those that might be taken in circumstances where the employee had no Union representation In the Riverdale Hospital case, above, the board stated, at p 278 The rights granted under art 13 02(a) to employees are lmportant rights and represent an important feature of their job security It cannot now be known whether or not, had the employer complied with art 13 02(a) at the tlme that it chose to terminate the grievor, the representatlons of the union steward might have persuaded them to do otherwise The action of the employer prevented the grievor from enjoying the opportunity of havlng union representation at a time when hlS employment was terminated The damage which he suffered as a result of that actlon is, ln my oplnion, damage for which he ought to be compensated 27 The fact that the Grievor was, by Exhibit 4, furnished with an opportunity to submit a written statement by registered mail explalning his actions with respect to the alleged improper cashlering procedures on May 4, 1994 does not overcome the breach of his rights under art 26 3 His rlghts had already been breached by that tlme 28 There is a seamless connection between the meeting of June 13, 1994, the Grievor's being suspended on that date (Exhibit 4) ( 54 and his being terminated on June 23, 1994 (Exhlbit 6) It lS artiflclal to arbitrarily divide the process whereby a meeting was held on June 13 to discuss a matter which might result ln disciplinary action being taken against the Grievor and the events following which were inextricably associated with it That lS, to state that the June 13 meeting was insufficiently related to the discharge of June 23 in an endeavour to make the suspension effected by Exhibit 4 the only action of the Employer that was void ab initio The events of the meeting of June 13th, the suspension imposed, and the discharge are so ineAtricably linked so as to taint not only the suspension but the discharge Cf Hickson-Lanqs ( above) at pp 338-90 29 It was not suggested that anyone at the meetlng of June 13, 1994 speciflcally told the Grievor that the meeting was being held solely for the purpose of furthering a criminal investigation and the laying of a criminal charge 30 Being substantive ln nature, it dld not matter that the Employer was only notified of the Union's intention to raise the violation of art 26 3 on May 25, 1995 Also, the origlnal written grievance was "broad enough so as to encompass disclpline which is improper with respect to the procedure followed as well as the merits of the decision to terminate Alcan Wire and Cable (above) at p 10 (Emphasls in origlnal) Subject to the Grievor walving his substantive rights under art 26 3, my Jurlsdlction ( 55 is dependent on the Employer having complied with the provisions of that article 31 There was no evidence that the Grievor walved his rights under art 26 3, and it is difficult to see how he could have done so lnasmuch as there was no evidence to show that he was made aware of his rights under that article 32 I do not regard the filing of the grievance on June 20, 1994 (Exhibit 2) and the receipt by the Grievor of wages, beneflts etc during his suspension as precluding the Union from relYlng on the breach of art 26 3 in connection with the grievance flled on June 28, 1994 (Exhibit 3) following his discharge Fallure by the Employer to adhere to its obligations under the provlsions of art 26 3 affected not only the suspenslon but the subsequent discharge It lS the possible benefit to be derived from the presence of Union representation in relatlon to any dlsclpline that might be lmposed that lS protected by art 26 3 and not Just the more immediate result of the meeting the suspension imposed by Exhibit 4 In fact, as it appears that the Grievor was going to be glven Exhibit 4 no matter what happened at the meeting, it was the aftermath of the meeting the ultimate dlscharge of the Grievor on June 23rd that was more closely linked to what transplred at the meeting As has already been notd, it is dlfflcult to believe that Mr Holmes would conduct an examinatlon of the Grievor only for the purpose of furthering a criminal ( 56 investigation ln the presence of Sergeant Crockford It is more probable that Mr Holmes asked quetions of the Grievor prlmarlly for the purposes of the Employer to see if discipline should be imposed, and Sergeant Crockford asked questions of the Grievor for the purposes of the criminal investigation 33 Once the Employer held the meeting of June 13, which it was not requlred to do, it was the ultimate penalty of discharge that was directly related to that meeting And lt was the discharge that was affected by the failure to honour the substantive right of the Grlevor 34 While there may be a certain futillty to this exerClse, in that the Grlevor may again be discharged by the Employer, thlS tlme following the requirements of the collectlve agreement, I agree wlth what was said in the Riverdale Hospital and VS Servlces Ltd. cases by Professor Brandt concerning a grlevor, whose termlnation has been declared void ab lnitio because of a failure to follow the requirements of an article to the same effect as art 26 3, being subject to the possiblllty of belng discharged for the same actions, however, in accordance with the requirements of the collective agreement This is not a case where I should not reinstate the Grievor, as was suggested by counsel for the Employer Accordingly, lt lS my award that the Union's objectlon is upheld, and I find the disciplinary action taken by the Employer in discharging the Grievor on June 23, 1994 57 was void ab initio The Grievor will therefore be reinstated to his former position with the Employer without loss of seniority from that date he was dlscharged 30 I have a problem, however, with awarding the Grievor benefits and compensation from the date of his being discharged This is because of the failure of the TJnion, until May 25, 1995, to alert the Employer of its intention to rely on the failure to comply with art 26 3 as a basls for making an application at the commencement of the hearing on June 5, 1995 to have the discipline declared void ab initio It is one thing to find that the claim was subsumed in the grievance See Alcan Wlre and Cable, above, at p 10, and that it can therefore be raised at the hearing It is quite another thing to say that relief should always be related back to the time of the discharge Ibld. at p 11 In the case of a grievance that that has proceeded through the three stages of the grievance procedure, it would be expected that the issue relating to the Employer's failure to comply with the provlsions of art 26 3 would, at some point in the procedure, have been raised by the Union In this case, in the absence of prior notification by the Union, I find that the Employer only knew of the lssue on May 25th Because it was not lnformed of the issue before me untll that date, it was deprived of the opportunity to consider its posltion in the llght of the 58 lmpllcations that were raised for the flrst time on May 25th If lt had the opportunity to do so during the normal functlonlng of the grlevance procedure, lt could have acknowledged its fallure to comply wlth art 26 3 at minimal cost and then proceeded to dlscharge the Grievor in compliance with the requirements of the collectlve agreement, as Mr Drmaj suggested could be done In raising this possibilty, I am not saying that such an action would necessarily succeed If the Union had promptly raised the issue at an earlier point in time, as it should have, and the Employer had malntalned its position, I would have had no problem with awardlng compensation to the Grievor from the date of hlS discharge However, ln the circumstances before me, it would be unfair to do so, and I award compensatlon and beneflts only from the date of notiflcation (May 25, 1995 ) I wlll retain jurisdictlon to deal with the issue of compensation resultlng from this award, if the partles are unable to agree on the amount payable I would only add that counsel informed me that they had been unable to flnd any GSB case that dealt wlth the issue before me, and I wish to thank them for thelr thorough and and well presented submissions, which I have endeavoured to respond to I \ 59 Dated at Toronto this 15th day of August, 1995 . ~ ~ ~ M R ~r's~y-/ -L.'~ q Vlce Chairperson ONTARIO EMPLOYES DE LA COURONNE CROWN EMPL OYEES DEL'ONTARIO 1111 GRIEVANCE COMMISSION DE , SETTLEMENT REGLEMENT BOARD DES GRIEFS 180 DUNDAS STREET WEST SUITE 2100 TORONTO ONTARIO M5G lZ8 TELEPHONE/TELEPHONE (416) 326-1388 180 RUE DUNDAS OUEST BUREAU 2100 TORONTO (ONTARIO) M5G IZ8 FACSIMILE'TELECOPIE (416j 326-1396 August 23, 1995 AMENDMENT RE 809/94 OLBEU (LaHay) and the Crown in Right of Ontario (Liquor Control Board of ontario) Please replace page 58 of the original decision with the revised page 58 Yours truly, ~J'4' '/ -/l-g /J .m,\ CfJ 'I A, vt!v~ L stickland Registrar LS/dbg Encl. 58 implications that were raised for the first time on May 25th If it had the opportunity to do so during the normal functioning of the grievance procedure, it could have acknowledged lts failure to comply with art 26 3 at minimal cost and then proceeded to discharge the Grievor in compliance with the requirements of the collective agreement, as Mr Drmaj suggested could be done In raising this possibilty, I am not saying that such an action would necessarily succeed If the Union had promptly raised the issue at an earlier point in time, as it should have, and the Employer had maintained its position, I would have had no problem with awarding compensation to the Grievor from the date of his discharge However, in the circumstances before me, it would be unfair to do so, and I award compensation and benefits only from the date of notification (May 25, 1995) I will retain jurisdiction to deal with the issue of compensation resulting from this award, if the parties are unable to agree on the amount payable I would only add that counsel informed me that they had been unable to find any GSB case that dealt with the issue before me, and I wish to thank them for their thorough and and well presented submissions, which I have endeavoured to respond to I I 59 Dated at Toronto this 15th day of August, 1995 . ~ ~ L M R ~r's~y _/ L'~ :;j- Vice Chairperson