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HomeMy WebLinkAbout1995-2260.MATHER96_07_29 ONTARIO EMPLOYES DE LA COURONNE CROWN EMPLOYEES DE L'ONrARIO 1111 GRIEVANCE COMMISSION DE SETTLEMENT , REGLEMENT BOARD DES GRIEFS 180DUNDASSTREETWEST,SU/TE2100, TORONTO ON M5G 1Z8 TELEPHONEITELEPHONE (416) 326-1388 180, RUE DUNDAS OUEST, BUREAU 2100, TORONTO (ON) M5G 1Z8 FACSIMILE/TELECOPIE (416) 326-1396 GSB # 2260/95 OLBEU # OLB002/96 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN OLBEU (Mather) Grievor - and - The Crown in Right of Ontario (Liquor Control Board of ontario) Employer BEFORE. B Kirkwood vice-Chairperson FOR THE J Noble GRIEVOR Legal Counsel Ontario Liquor Boards Employees' Union FOR THE M Gage EMPLOYER counsel Liquor Control Board of Ontario HEARING June 11, 1996 Page 2 DECISION ON PRELIMINARY ISSUE ThIs matter concerns a dIscharge gnevance. At the commencement of the heanng, employer's counsel raIsed a prelImmary Issue contestmg the board's JunsdIctIOn on the basIS of Issue estoppel For the purposes of the prelImmary Issue, counsel summanzed the facts. The facts as stated by employer counsel were: Mr Mather was employed by the L.C B 0 Durham Warehouse m 1984 and became a full-time employee m 1987 His posItIon was a Warehouse Person 3 Employer's counsel stated that after an mCIdent occurnng on December 16, 1995, the employer dIsmIssed Mr Mather from hIS employment for appeanng at work m an mebnated state, thereby posmg a safety hazard. Umon's counsel stated that the reason given, was, "mcapacIty to perform hIS dutIes because of IntoxIcatIOn" The termmatIOn was effectIve December 27, 1995. Subsequent to the termmatIOn, Mr Mather filed the gnevance whIch IS the subject matter of this gnevance, and apphed for unemployment benefits under the Unemployment Insurance Act. In the matter of the unemployment benefits, after InvestIgatIOn by an msurance agent, the msurance agent adVIsed Mr Mather m hIS deCISIon of February 1996, that as he had determmed that Mr Mather had lost hIS Job "by reason of hIS own conduct", Mr Mather was not entltled to unemployment benefits pursuant to sectIOn 28(1) of the Unemployment Insurance Act. On March 18, 1996, the gnevor appealed the deCISIOn of the msurance agent to the board of referees. That heanng, whIch was scheduled for Apnl 12, 1996, was adjourned to Apnl 24, 1996, at the request of Mr Mather to allow hIm to obtam representatIOn. At the heanng, Mr Mather was represented by Don McDermott, a busmess representative with the umon. Although the employer had been given notice of the heanng, no one appeared for the employer The msurance agent provIded wntten submIsSIons, but dId not attend. Mr Mather attended and gave eVIdence, and Mr McDermott argued on hIS behalf In a unammous deCISion of the board of referees dated Apnl 24, 1996, the board of referees concluded that Mr Mather had been tenmnated as a result of hIS own misconduct, and upheld the demal of benefits. WIth thiS background, employer's counsel argued that thIS Board had no JunsdlctIOn to determme the Issue of 'cause' on the baSIS of Issue estoppel as that Issue has been determmed by a deCISion of the board of referees under the Unemployment Insurance Act Employer's counsel acknowledged however, that thiS Board had the JunsdlctIOn to determme whether a lesser penalt) should be substituted. ---~--- Page 3 Employer's counsel relIed on the OntarIo Court of Appeal decisIOn In Rasanen v Rosemount Instrument, [1994] 17 0 R. (3d) 267 (C.A ) (hereInafter "Rasanen') In support of Its posItion. Employer's counsel referred to two examples where the pnnclples set out In Rasanen were apphed In other forums, the cases of the Alberta Court of Appeal decIsIOn m Wong v Shell Canada, 15 C.C.E.L. (2d) 182 (AHa. C.A ) and the Ontano Court of Appeal deCISIOn of Machado v. Pratt & Whitney 12 C.C.E.L. (2d) 132 (MacDonald) Employer's counsel submitted that once the three cntena as set out m Rasanen for the foundation of Issue estoppel were met, this Board was precluded from determming the Issue of cause. The three elements are: 1) the question before both boches must be the same questIOn, 2) the deciSIOn wluch IS satd to create the estoppel must be final, and 3) the two forums must mvolve the same parties or pnvies. On the first Issue, whether the Board of Referee answered the same questIOn that IS in Issue before this Board, Employer's counsel submitted that the substance of the Issue must be reviewed, for the court in Rasanen held, that notWithstanding different hngulstIc differences m outlimng the Issue, the question can be the same. In Rasanen, the questIOn facmg the referee was whether the employee had been offered reasonable alternate employment. The court found that the Issue mvolved was the same as m the JudiCial proceedmg, whether there had been a breach of the employment relationship, or whether the employer owed compensation to the employee Employer's counsel submitted that m the case before thIS Board, the Issue that the board of referees had to answer was whether the clatmant was term mated by reason of hiS own misconduct, which IS the same questIon as whether the employer had cause to tenmnate the gnevor, which IS the Issue before thiS Board. Secondly, tummg to whether the deCISion IS final, employer's counsel argued that the Unemployment Insurance Act proVides the opportumty to appeal to an umpIre and Mr Mather did not aVail himself of that opportumty Employer's counsel argued that thiS case was analogous to the Rasanen deCISion, m which the court held that the deCISion became final when Rasanen had the opportumty to apply for JudICial reView, but did not apply Thirdly, as to ,\- hether the partIes are the same, the employer's counsel argued that the parties are the same, or at least privy Employer's counsel argued that agam, thiS case IS Similar to the Rasanen case. Employer's counsel submitted m this proceedmg, the parties are the gnevor, the umon, which IS actmg on the gnevor's behalf and the employer, and before the board of referees, the parties were the employee and the commiSSion, but the employer was pnvy to that proceedmg. In Rasanen, the parties at the Employment Standards Act heanng were, the employer and the Mimstry of Labour, which was found to be actmg on behalf of the employee and Page 4 the Insurance agent, and In the court proceedIng, the parties were the employee and the employer In Rasanen, the employee was considered pnvy as the employee's claim before the board of referees, was the genesIs of the proceedIng, he partICipated In the proceedIng and attended before the board of referees and gave eVidence, had the opportumty to hear the others, winch would have Included the employer, had the employer chosen to attend and gIve eVIdence. Employer's counsel submItted that in the same way, the employer, who was not a party to the proceedIng before the board of referees was a pnvy to that proceedmg, and a party to the proceedmg before the Grievance Settlement Board. Therefore the cntena of party or pnvy was met. In conclUSIOn, employer's counsel argued that the Issue as to whether the employer had cause to termInate the gnevor had been determIned by another tnbunal which had junsdlctlOn to determIne the issue It was a final decIsIon, and was In a forum In WhICh all the partIes to thIS proceedmg had had an opportumty to partIcipate. Therefore, employer's counsel argued that the three cntena set out In Rasanen were met and thiS Board had no junschctIon to determIne the Issue of cause, although It dId have the jUnSdIctIon to determIne whether In all the circumstances the penalty should be reduced and another penalty substituted. Umon's counsel also accepted Rasanen as settIng the cntena for the applIcation of Issue estoppel, but took. the poSitIOn that the facts In thIS case were different and the elements reqUIred for a determInatIon of issue estoppel were not met. Therefore Umon's counsel argued that tins Board had junsdlctIon to determIne the Issue of cause. Umon's counsel agreed that the questIons that are to be answered m both proceedmgs must be the same and fundamental to each deCISIon. However, umon's counsel submitted that deCISion mak.ers must be ngorous In theu analYSIS of the issues. Umon's counsel argued that If a fastIdIOUS approach IS used, the questions are not the same. She submItted that the questIon the board of referees had to answer, was, whether Mr Mather should be dIsentitled from receIvmg benefits due to hiS own mIsconduct. Umon's counsel submItted that thIS IS not the questIon before thIS Board. She submItted that although thiS Board ma~ find that the gnevor's conduct was not perfectly acceptable and may \varrant some dISCiplIne, the Issue before this Board, IS whether the gnevor ought to be reInstated takIng Into all the CIrcumstances of the case IncludIng, whether hIS record of employment supports dIscharge, whether hIS conduct warrants dIscharge, does the gnevor have some struggle With alcohol and whether it seems lIkely that the gnevor Will engage In simIlar conduct. Umon's counsel argued that the statutory base upon which the court found that the deCISIon of the referee under the Employment Standards Act was dIfferent from the statutory base upon which the deCISion IS made under the Unemployment Insurance Act In Page 5 Rasanen, sectIOn 50(7) currently s. 69(7) of the Employment Standards Act states that the decIsion IS final and bmdmg. On the other hand, section 86 of the Unemployment Insurance Act has no finalIty and the board of referees can change Its decIsion at any time With the presentatIOn of new eVidence. ~ Umon's counsel argued that In Rasanen, although the court found that the partIes were the same or that they were considered pnvy m both proceedmgs, thIS case is dlstmgUIshable. The court m Rasanen detenmned that the employer and the employee were at least pnvles by lookmg at the nature of the dIspute and detemumng that It was a dIspute between the employer and the employee, for If the employer had not met the statutory reqUirements, the employer had to make the payments. In the case before thIS Board, there IS no overlap. The partIes to tlus proceedmg are the umon and the employer, the L.C.B 0 The partIes to the proceedmg before the board of referees are the employee (c1aImant/gnevor) and the commISSIon. The employer was not a party and was not lIable In both forums. In support of the Umon's posItion, umon's counsel relied on the recent case of OPSEU (Leeder) v The Crown in Right of Ontario (Ministry of Health) G S B # 2498/93,0164/94,0296/94 (Finley) (heremafter referred to as "Leeder''), a unammous deCISIon of a three panel board of the Gnevance Settlement Board, WhICh, she submItted, exammed the same Issue as before thIS Board. She submItted that m Leeder, many of the arguments were the same, although the mterests of the partIes were reversed. Umon's counsel argued that although the court In Rasanen held that a deCISIon of an admimstratlve tnbunal could bInd on the court, the employer was seeking to have a deCISIon of one admimstratIve tnbunal bInd another admirustratlve tnbunal Umon's counsel argued that the applicatIon of res JUdIcata has been qualified In labour relatIons, and so too, should the applIcatIOn of Issue estoppel Umon's counsel submitted that as m the deCISion of Re Saskatchewan Wheat Pool and Transportation Union 22 L.A C. (4th) 129 (Solomatenko), boards of arbItratIOn have qualIfied the InterpretatIOn and applicatIOn of res JudIcata such that where the former deCISIon was clearly or mamfestly wrong, It should not be followed, and where the subsequent decISIon departs from the former deCISIon, the basIS of the dIfference should be clearly stated. In that case the board dId not apply res Judicata, although It recogruzed that the main Issue raised was the same one faced by an earlIer board m a dIfferent gnevance, on the basIS that there was relevant eVIdence that was before the second board that dId not appear to be part of the board's delIberatIOns m the earlier award. Umon's counsel argued that m the same way, It Intended to adduce conSIderably more and dIfferent eVidence than that WhICh had been adduced at the heanng under the Unemployment Insurance Act Page 6 Decision As the basIs of this decIsion lIes upon the applIcatIOn of the pnnclples set out Rasanen, It IS useful to provide a bnef summary of the case. In Rasanen, the Rasanen was employed an engmeer who was employed as an Ontano Branch Manager and subsequently became Manager of Nuclear/Aerospace, Marketmg and Sales m Toronto As a resul t of a corporate reorgamzatlon, his posItion was to be elImInated. Rasanen was offered the posItion of marketIng manager with the same salary and bonus, responsibIlIty for the same number of employees and he would contmue to report to the President. However, he would have to move to Calgary As Rasanen had prevIOusly declIned an offer of thiS poSItion on a prevIous occaSIOn, the employer also offered lum the poSitIOn of a major accounts manager, With the same salary and potential for a larger bonus, but he would have no employees dlfectly reportmg to him and he would no longer report to the President. He would not be reqUIred to move. Rasanen rejected both offers and filed a claim for tenmnatIon pay under the Employment Standards Act In one forum, and sued for damages on the basIS of constructl ve dIsmissal before the courts. The Employment Standards Act exempts the employer from the oblIgatIOn to pay temunatIon pay, If the employee IS laid off after refUSIng "reasonable alternate work' After mvestIgatlOn of the complamt by an employment standards officer, the officer concluded that no money was owmg, because the second offer which Rasanen had refused, was an offer of reasonable alternate employment, and therefore, It was deemed that Rasanen had gIven notIce to the employer that he would be leavmg the company Rasanen requested, as he was entitled, to a reVIew by another officer, and that officer found that neither offer constituted reasonable alternate employment and It could not be construed that Rasanen voluntanly left the company That officer ordered the employer to pay termmatlOn pay and the employer appealed that deciSIOn to a referee. The referee then conSIdered and applIed the approach taken In wrongful dismissal JUrIsprudence, to determme If there was a fundamental breach of the employment relatIonshIp Among the referee's conclUSIOns, the referee concluded that the chOIce of the Toronto posItion constItuted a reasonable alternate employment offer, which Rasanen was entitled to declIne, but he could not also receIve termInatIOn pay The referee vacated the order to pay Rasanen dId not apply for JudICIal reVIew of the referee's decISIon. Three years later when the constructive dIsmissal SUIt came to tnal, the trIal judge held that the doctrIne of Issue estoppel applIed, and In the alternatIve, If It dId not, there was no fundamental breach of the employment relationshIp as reasonable alternate employment had been offered, and he dismissed the claim for constructive dIsmIssal Rasanen appealed the deCISIon to Page 7 the Court of Appeal The Court of Appeal upheld the deCISIon of the tnal judge and held that Issue estoppel dId apply and It dIsmIssed the appeal WIth costs. The deciSIOn of Abella J A. for the Court of Appeal began her analysIs WIth a statement of the purpose of Issue estoppel, then contInued WIth a statement of the prereqUisItes of Issue estoppel and ItS applIcatIOn to the case before the Court. Abella l.A states at p. 172: At ItS Simplest, Issue estoppel IS mtended to preclude the relItigation of Issues that have been determined m a pnor proceedmg. As stated by Middleton J.A m McIntosh v Parent (1924),550 L.R. 552 (Q B) at p. 555: Any nght, questIOn, or fact dlstmctly put In Issue and dIrectly determmed by a court of competent jUnSdlctIOn as a ground of recovery, or as an answer to a claIm set up, cannot be re-tned In a subsequent SUIt between the same parties, or theIr pnvles, though for a dIfferent cause of actIOn. The right, questIOn, or fact, once determmed, must as between them, be taken to be conclUSIvely establIshed. It anses as a doctnnal response to the "twm pnnclples. that there should be an end to lItigatIon and that the same party shall not be harassed twice for the same cause." (Carl-Zeiss-Stiftung v Rayner & Keeler Ltd. (No 2), [1967] 1 A C. 853 (H.L.) at p 946 .As a speCIes of estoppel, It IS dlstmgUIshable from, but clearly conceptually related to "cause of actIOn estoppel" or "res JudIcata, which precludes the bnngIng of an actIOn when the same cause of actIOn has already been determined by a court of competentjunsdlctIon. (Thoday v Thoday, [1964] 1 All E.R. 341 (C.A ) at p 352) The proceedIngs before us mvolve Issue estoppel, Lord Guest summanzed the reqUirements of Issue estoppel as follows in Carl Zeiss, supra, at p. 935 1) that the same questIOn has been deCIded, 2) that the JUdICial deCISIon WhICh IS Said to create the estoppel was final, and, 3) that the partIes to the JudICial deCISIon or theIr pnvles were the same persons as the partIes to the proceedmgs m WhICh the estoppel IS raised or theIr pnvles. The proper Inquiry In deCIdIng whether the reqUirements have been met IS whether the question to be deCIded m these proceedmgs IS the same as was contested In the earlier proceedIngs and was, moreover, so fundamental to the deCISIOn that It could not stand WIthout the determination of that questIOn. The second reqUirement IS that there be a pnor, final, JUdICial deCISIon. The remammg aspect of thIS second reqUirement IS that the deCISIon be final and conclUSIve of the relevant Issues. Page 8 ThIS leads to an eXaminatIon of whether the third reqUIrement of Issue estoppel was met In this case, namely, whether the same partIes or theIr pnvies were common to both proceedings. The court held that notWithstanding the lingUIstic differences In articulating the Issues In the two forums, the fundamental Issue In both forums was the same. The common Issue was "was there any entitlement by the employee to compensation from the employer arising from the termination of hiS employment?" In both cases, the entitlement to termInatIOn pay was dependent upon whether the employer Violated a duty towards the employee, giVing nse to lIabilIty and compensatIon. A determinatIon that the employer offered reasonable alternative employment, answered the question before the referee, and was cntlcal to the Issue faced by the court In the wrongful dismissal action. HaVIng determined that the employer proVided reasonable alternate employment meant that the employer did not fundamentally breach Its contract of employment With the employee. It answered conclUSIvely the questIOn which the court faced as to whether the employee was entitled to compensatIon from the employer Abella lA. dismissed the company's argument that the Employment Standards Act forum was not sufficlCntly JUdiCIal to count to preclude Issue estoppel Abella l.A. recogmzed that adminIstrative tnbunals are an alternative method of resolVing Issues between parties, and are credIble bodIes. They are bound to follow the pnnclples of natural JustIce and to ensure that the partIes know the case they have to meet. With respect to the finalIty of the deCISIon Abella l.A. held that the appellant could have applIed for JUdICIal review and dId not, and therefore the deciSIon of the referee was final Abella l.A held that although techmcally Rasanen was not a party to the proceeding In the proceedmgs before the referee, as the MinIstry of Labour was argumg on hIS behalf, Rasanen was a pnvy, as It was hIS claim that was the geneses of the proceedmgs, and he had notIce of every step of the proceedings. He partICIpated In both the Employment Standards Act proceedIngs and the court proceedings. The Mimstry of Labour who appeared before the referee as a party, shared a commumty of Interest With Rasanen In attempting to uphold the deciSion of the Employment Standards officer Finally, Abella J A responded to an argument that the Employment Standards Act precluded the operatIon of Issue estoppel as that Act stated that "no CIvIl remedy of an employee agamst hIS or her employer IS suspended or affected by thIS Act" and held that an employee may have a chOIce of forums, but that dId not mean that the employee IS Immune from the applIcation of Issue estoppel, and IS not bound by a final deCISIon of eIther forum on the same ~ Page 9 Issue The Gnevance Settlement Board recently consIdered the applIcatIOn of Issue estoppel 10 the case of Leeder. The panel apphed the cntena establIshed in Rasanen, but found that the cntena was not establIshed and therefore Issue estoppel dId not apply I n Leeder, the gnevor was discharged, and ImmedIately filed a gnevance and a claIm for unemployment benefits under the Unemployment Insurance Act He was dIsqualIfied from receIving unemployment 10surance benefits at the first level, where It was found that he lost hIS Job by reason of hIS own misconduct. He appealed to the board of referees. The gnevor, hIS umon representative, and a representatIve of the employer attended. NeIther the gnevor nor the employer had counsel InformatIon as to the mCldent leadmg to the dismissal was presented by the claImant and comment was added by the employer, but no witnesses were presented, and no evidence was called. The board of referees applIed the standard of "beyond a reasonable doubt" and found that mIsconduct was not proven beyond a reasonable doubt, and allowed the appeal The employer dId not appeal the deCISIon. In Leeder, the umon argued at the Gnevance Settlement Board heanng on the dIscharge that the employer was estopped from tak10g a poSitIon dIfferent from the find10g of the board of referees on the basIS that the Issue was IdentIcal 10 the two forums and the deCISIon 10 the board of referees was final The arguments made were similar to those made at tlus heanng. In Leeder the employer had argued that the factual Issue of whether the employee engaged 10 Wilful conduct was the same Issue to be determ10ed by the board of referees and the Gnevance Settlement Board. On the other hand, the umon had argued that the Issue before the board of referees was \\ hether the employee was entItled to benefits and what k10d of conduct would disentitle him, which was different from the Issue before the Gnevance Settlement Board, which was whether the dismissal should be upheld, mitigated or revoked. In Leeder, the panel of the Gnevance Settlement Board found that the first cntena set out 10 Rasenen was not met as It held that the allegatIOn of mIsconduct WhICh was before the board of referees was not the fundamental Issue before the Gnevance Settlement Board. The misconduct relIed upon by the board of referees related only to an allegatIOn of fall10g to chart, which was only one baSIS for the dismissal The Gnevance Settlement Board also had to conSIder the more slgmficant allegatIOns of sleep10g on duty and failing to carry out charge nurse responSibilitIes 10 determ1010g whether the dIsmIssal should be upheld, mitIgated or revoked. Furthermore, re10statement was not an option that was aVailable under the Unemployment Insurance Act. WIth respect to the second ISSUe, the finalIty of the deciSion, the employer made the same argument as submitted to thiS Board that as the employer had not presented eVidence before ~-- - ~ Page 10 the board of referees It could do so again and therefore the decIsion of the board of referees was not final The Board did not decide thiS Issue as It held that the Issue to be decided by the panel of the Gnevance Settlement Board had not been dealt with and therefore there had been no finahty to the Issue. - Thirdly, Similar positions were taken by the parties on the Issue of 'party' and 'pnvy' as submitted to thiS Board. Employer's counsel argued that the parties were the same, and umon's counsel argued that they were not. Umon's counsel argued that the role of the employer was only to proVide the reasons for the dismissal, and to ensure that the heanng was run properly The Board found that the parties to the Gnevance Settlement Board heanng were not a pnvy to the action between the employer and the Unemployment Insurance Commission m that the Board determmed that to be pnvy to an actIOn, requues one to "have an mterest m the outcome." The Board found that the employer's SituatIOn and poSItIon was not affected m any way by the deciSion of thiS board of referees and concluded that the employer did not have an mterest m the outcome of the declSlon of the board of referees and therefore was neither a party nor a pnvy to that proceed mg. In additIon, although obiter, the panel also pomted out that If unemployment 10surance disqualIficatIOn appeals became the forum for decIdmg the Issue of dIsmIssal, It would have the effect of havmg the dismissal heard m a forum where the parties had not agreed to have the Issue determmed, and m a forum, where the real Issue IS not between the employee and the employer, but the employee and the unemployment 10surance commission. The employee m Leeder was 10 a different pOSitIOn from Rasanen, who had a chOIce of forums for the same remedy Leeder had no alternatIve but to go before the board of referees to have hiS disqualIficatIOn for benefits overturned, and the forum to have hiS dismissal overturned was the Gnevance Settlement Board, as proVided 10 the Crown Employees Collective Bargaining Act. The Board also pointed out that the parties did not conSider the board of referees as proViding an optIOnal forum for the determmatlon of Issue of dIsmissal The panel was also concerned With the dlspanty 10 the quality of the procedures, that suffiCient safeguards were not present to test the eVidence 10 "' hlch the Issue was slgmficant and effected the employee's lIvelIhood and career Although the Crown Employees Collective Bargaining Act has prOVided Junsdlctlon to the Gnevance Settlement Board to determlOe whether the employee was discharged for cause, as m Rasanen or Wong (supra) the legislation does not preclude the applIcatIOn of Issue estoppel Therefore, the pnnclples of Issue estoppel, which are pnncIples of law, are not precluded from application 10 this forum. As set out 10 the Rasanen case, and as has been accepted by the parties, Issue estoppel reqUIres three cntena be met: Page 11 1 Was the questIOn the same as was contested m the earher proceedmgs and was It so fundamental to the deCISIon that It could not stand wIthout the detennmatIOn of that questIOn? 2 Was there a pnor final decIsIon? and 3 Were the partIes or theIr pnvles common to both proceedmgs? In thIS case, the Issue as framed by the board of referees m Its deCISIOn dated Apnl 24, 1996 was: The Issue mvolved IS whether the claimant should be paid regular benefits from January 22, 1996 as he lost hIS Job wIth the L.C.B 0 on December 16, 1995 due to mIsconduct. (SectlOn 28 and 30 1 of the Unemployment Insurance Act and 59 1( 1) of ItS RegulatIOns) The board of referees concluded at page 3 of theIr deCIslOn: SectIon 28(1) states that a claImant IS dIsqualIfied from receIvmg benefits If he lost hIS employment because of hIS own mIsconduct. Black's Law DIctIOnary defines "mIsconduct" as "employee behaVIOur that dIsplays WIlful or wanton dIsregard of the employer's mterest, and that deliberately VIOlates and dIsregards certam standards WhICh the employer has the nght to expect." The Board finds that workmg man Impal red state dIsregards the employer's mterest and standards. The claImant's Job consIsted of operatmg machmery, and the employer expressed concerns about the senous health and safety threat resultmg from the claImant's condItIOn The Board finds these concerns to be Justified. The Board finds that It was the claImant's responsIbIlIty to knew If he could consume alcohol whIle takmg the prescnbed paInkIller medIcatlOn. The claImant has stated that hIS perceptIon was that he was not ImpaIred, and was functIomng normally The Board finds that the combmatIOn of lack of sleep, alcohol consumptlOn, coupled with the pamkIller medlcatlOn and the lack of food, would leave the claImant functIomng m less than optImum condItIOn -- m fact, m an Impaired state. In that case, the Board finds the employer had reasonable grounds to dIsmISS hIm Page 12 The Board finds the claImant dId not exerCIse sound Judgement (SIC) In arnvmg at work after insufficIent sleep, and the subsequently consumIng pam kIllers and alcohol on an empty stomach. The Board finds that this would ObVIOusly leave the claImant m less than optImum condItion to operate machmery, m fact, m an Impaired state. The Board finds thIS IS m violation of the employer's mterests. It IS a reasonable expectatIOn that the employee be ummpaIred whIle workmg. In CUB 27175 Judge Flamgan stated. ''There was eVIdence that the Appellant appeared for work In an mtoxIcated condItion, there was eVIdence that he had been warned by the Employer that he would be dIscharged If thIS happened agam and there was eVIdence on behalf of the Appellant denymg such allegatIOns. The Board exercIsed Its discretIOn m the proper manner and preferring the eVIdence of the Employer over the Appellant. " Finally, the Board finds the claimant's actions and behaVIOur were other than what was expected and reqUIred by the employer, and have been determmed to constitute mIsconduct. The Board finds the employer had reasonable grounds to dIsmISS the claimant, and the mIsconduct IS the reason for the dIsmIssal. RegardIng the ratIOnale behmd the Unemployment Insurance Act, the UmpIred ruled m CUP 11450, that IS: ''To proVIde aid for Canadians who happen to find themselves unemployed through no fault or act of theIr own. Insurance agamst nsk of mvoluntary and blameless loss of employment Income." The Board finds that the claimant lost hIS employment because of hIS own mIsconduct wIthm the meanIng of the Unemployment Insurance Act, and we dIsmISS the appeal DECISION It IS the UNANIMOUS deCISIon of the Board that the appeal IS DISMISSED 1 Was the question the same as was contested in the earlier proceedings and was it so fundamental to the decision that it could not stand without the determination of that question? ThIS Board finds that as m the Leeder case, the Issues before the two forums are dIfferent. The Issue before the unemployment Insurance commISSIOn was, whether the employee was entItled to benefits from the commISSIon. The lIabilIty of the employer was not In Issue. ThIS Page 13 IS 10 contrast to the Issue before thIS Board as to whether the dIsmIssal IS to be upheld, mItigated or revoked, whIch detemunatIon dIrectly affects the habIlity of the employer Although the board of referees m determ10mg whether the employee engaged m WIlful mIsconduct, made a determ1OatiOn that the employer had reasonable cause to dIscharge the employee, I do not find that such a find10g IS conclUSIve of the issue before thIS Board. The board of referees was not bemg asked whether the employer had cause to dIscharge the grievor, but whether the employee engaged m wilful conduct. Therefore whether the employer had reasonable cause to dIscharge the employee, may be a sigmficant factor 10 the deCISIon of the board of referees, but It IS not the Issue that it had to determine. Pursuant to statute, thIS Board IS dIrected to the Issue of cause and to determ10e whether the penalty was exceSSIve m the CIrcumstances. ThIS Board 10 answenng the questiOn, whether the employer IS hable, has to determme the nature of the employee's conduct and charactenze that conduct, and must. determ1Oe, whether the conduct proVIded cause for the employer to dIscharge the employee. In the context of gnevance arbItratiOn, the detemunatiOn of cause IS much greater than a determinatIon as to whether the employee engaged 10 wIlful mIsconduct. In the context of a gnevance proceed1Og, a findmg of wilful conduct may gIve the employer cause to dlsclphne an employee, which would lead to the employee's re1Ostatement, but not cause to dIscharge the employee. Therefore, although a determ1OatIon by thIS Board whether the employer had cause to dIscharge the employee, may reqUire a finding of fact as to whether there was WIlful conduct on the part of the employee, a determ1OatIon of that Issue conclUSIvely answers the questiOn before the board of referees, whether the employee was entitled to benefits, but It does not conclUSIvely answer the questiOn before thIS Board as to whether the dIsmIssal shall be upheld, mItIgated or revoked. The Leeder case IS a useful example whIch Illustrates the narrowness of the Issue before the board of referees, as opposed to the scope of the Issue before the Gnevance Settlement Board. In Leeder, as 10 the case before us, the Issue before the board of referees was whether the employee engaged 10 wilful conduct, whIch prOVIded cause for the employee's dIsmIssal The panel found that although the commiSSiOn made a findmg on one of the allegatiOns, the failure to report, whIch was suffiCient for the commISSIOn's purposes, the Gnevance Settlement Board had to focus not merely on the issue of reporting, but on the more sIgmficant Issues of whether the employee was sleep10g on the Job, and the responsIbIhtIes of a charge nurse. Therefore, a find10g of WIlful conduct was suffiCIent to answer conclUSIvely the Issue for the board of referees under the Unemployment Standards Act, but not to determme whether there was cause to dIscharge the gnevor, and whether the dIsmIssal should be upheld, mitigated or revok.ed as must be conSidered under the Crown Employee's Collective Bargaining Act and the Labour Page 14 Relations Act as Incorporated. Although not determInatIve as to the sameness of the Issues In question, it IS also interesting to note that In Rasanen the referee In the Employment Standards Act proceedings had canvassed the relevant case law on wrongful dismissal, which was the case law that was relevant in the court proceedIngs. That IS a reflectIon of the sameness of the Issues In the two proceedmgs - the extent of the employer's lIabIlIty for termInatIOn pay In this case, although the relevant persons had notice, there was no eVIdence that any of the Junsprudence that would be relevant to a dIscharge gnevance was applIed In the board of referees' heanng. 2. Was there a prior final decision? On the Issue of finalIty of the deCISIon, I find that there are two bases, each of which IS suffiCient to find that the Issue has not been decided with finality First, as in Leeder, the issue that thIS Board is faced WIth has not been dealt WIth conclUSIvely by the board of referees. Second, the statutory basIS for the deCISion under the Employment Standards Act upon whIch Rasanen rests IS qUIte different from the statutory baSIS under the Unemployment Insurance Act, and leaves open the questIon of finalIty Sectlon 50(7) of the Employment Standards Act, now s. 68(7) states. 68(7) A deCISIon of the referee under thiS sectIon IS final and bmdIng upon the partIes thereto and such other partIes as the referee may speCIfy RS 0 1980, c. 137, s. 50 (6-7) In contrast, there IS no finahty apparent m s. 86 of the Unemployment Insurance Act I t does not allow a reopemng of the Issue with the introductIOn of new eVIdence such as found In the Unemployment Insurance Act s. 86 which states s 86 The commiSSIon, a board of referees or the umpire may In respect of any decISion given In any partIcular claim for benefit reSCInd or amend the deCISIon on the presentatIOn of new facts or on bemg satIsfied that the deCISIon was gIven WIthout the knowledge of, or was based on a mIstake as to, some matenal fact. It was clear under the Employment Standards Act that the deCISIOn of the referee was to be final However, under the Unemployment Insurance Act, there IS no Similar reference to finahty of the deciSion. On the other hand, It contemplates that an Issue may be revIsited upon the IntroductIOn of new eVIdence. That would lead me to conclude that as much as Page 1 5 the union IS suggestIng that It IS intendmg to introduce new eVidence that was not Introduced at the heanng before the board of referees, It IS not, on the baSIS of the face of s. 86 of the Unemployment Insurance Act precluded from attemptmg to mtroduce new and further eVIdence before the board of referees. Therefore the decIsIon before the board of referees cannot be consIdered final Employer's counsel claImed that the grievor dId not aVaIl hImself of an appeal to the umpIre and she understood that the tIme limIts had passed. However, thIS Issue was not fully explored by counsel and It IS not necessary to make a final determInation on the Issue of finalIty on thIS basIS. However, I note that the decIsIon of the board of referees as presented to thIS Board IS dated Apnl 26, 1996 and sectIon 82 of the Unemployment Insurance Act states. S 82 An appeal from a deCISion of a board of referees must be brought wIthm SIxty days after (a) the day the decIsIon IS commumcated to the claimant, or (b) the earlIer of the day that the decIsIon IS commumcated to the claImant and the day that the decIsIon IS communicated to the employer, If the decIsIon IS commumcated to both the claImant and the employer, or such longer penod as the umpIre may m any case for speCIal reasons allow On the basIS of sectIon 82, m thIS ease, the penod m WhICh the employee IS entItled to appeal the deCISIon of the board or referees had not expIred at the date of the heanng. If an argument was to be made on the baSIS of Rasanen, It would be at most the umpIre's deCISIon on the appeal that IS final, unless the deCISIOn IS JudICIally reVIewed under the Federal Court Act, pursuant to sectIon 84 of the Unemployment Insurance Act. On the face of the statute and the deCISIon presented It appears that as of the date of thIS heanng the finalIty of the deCISIon under the Unemployment Insurance Act has not been reached, e\en If It were the case that the deCISIon of the board of referees was final. 3. Were the parties or their privies common to both proceedings? The thIrd Issue IS whether the partICIpants are partIes or pnVIes m both proceedmgs. In Rasanen, the mterests of the partIes or pnVIes were the same m the actIon under the Employment Standards Act and under the common law of wrongful dIsmIssal In Rasanen, the employer was a party m both proceedIngs. However, although the employee was not a party m Page 16 the proceedIngs In both forums, It was held that he was a pnvy m the proceedIngs before the Employment Standards referee, and he was a party m the JudiCial proceedIngs. The role of the employee met the cntena for pnv~, as the genesIs and the outcome of both proceedmgs were based upon the viablhty of the employee's claIm As explaIned by Abella lA , although the employee was not a party, he had a communIty of mterest With the MInistry of Labour, who was a party and shared a commumty of Interests m the deciSion. The employee was seekIng damages for the loss of hiS employment and the employee had a Vital Interest m each proceedmg as the outcome of each proceedmg determIned the employer's lIability to the employee for hiS loss of Job. In thiS case, at the unemployment msurance proceedmg, It was not lIabilIty of the employer that was at Issue, but the lIabIlIty of the commISSIon to pay benefits to the employee, whlle before the Gnevance Settlement Board, It IS the liabilIty of the employer that IS at Issue, whether to pay damages for dISmISSIng the employee, and/or reInstate the employee to hIS poSItIon. The difference In the Issues IS reflected In the roles of the partICIpants In the proceedIngs. In thiS case, In the proceedIng before the board of referees, the parties were the employee and the commiSSIon, and before thiS Board, the parties are the employer and the umon. As In Rasanen, the employee In thiS actIOn, has a Vital Interest In the outcome of both proceedIngs. In both forums, the genesIs of the claIms IS directly tled to the employee. Although the party before the Gnevance Settlement Board IS the UnIon and not the gnevor, the processIng of the claIm and the success of the claIm starts and rests WIth the partiCIpatIOn of the employee. Therefore, whIle the employee IS a party to the proceedmg before the board of referees, and IS not a party to the grievance before the Gnevance Settlement Board, the employee IS a pnvy to the gnevance proceedmg before the Gnevance Settlement Board and shares that commumty of mterest In both proceedIngs. Accordmgly the employee meets the cntena set out m Rasanen. However, the charactenzatlon of the employer's role IS different. The employer IS a party to the proceedIng before the Gnevance Settlement Board, but was not a party m the board of referees' proceedIng. Therefore the questIOn must be asked whether the employer was a pnvy at the unemployment Insurance proceedIngs. At the unemployment msurance proceedmg, the employer whIle gettmg notIce of the proceedIng, may choose to partICipate m the proceedIngs before the board of referees, or It can choose not to partlclpate, and Its deCISIOn does not affect ItS liabilIty As V Ice-ChaIr Finley poInts out In Leeder, employers may often choose not to act so as to prevent the employee from reCeIVIng benefits to which both had contnbuted. It IS not an Issue of losmg the status of pnvy by a deCISIon not to partICipate, as suggested by union counsel, but It IS rather that the status of a party or a pnvy IS a reflectIOn of the mterest that the person has m the outcome, as mentIoned by Vlce- - Page 17 ChaIr Finley If the employer IS not to be held hable for the payment of benefits, the employer may not have the same 'Interest' or focus In protectmg Its posItIon In the same manner or to the same degree, If It were to be held hable. If the employer chooses not to particIpate, It leaves the burden on the employee to prove that he or she dId not partIcIpate In wIlful mIsconduct that caused the employee to lose hIS or her Job Even If the employer IS a witness In the board of referees hearIng, the employer IS respondIng to questIOns, and IS not m the poSItIOn of haVIng to put forward Its best posItIon to defend a claim of habIhty ThIS IS In contrast to the dismissal grIevance, In whIch not only IS the employer a named party, but the determInatIOn of the outcome of the hearIng depends heaVily on the partICIpatIOn of the employer, as the employer has the burden of proof to demonstrate that It had cause to not merely dIsclphne the employee, but to dismiSS the employee for the employee's conduct. Therefore the employer's success In haVIng the gnevance dIsmIssed depends very much on the partiCIpatIon of the employer ThiS SItuatIOn IS different from the role of the parties and pnvles In the Rasanen case In Rasanen, the Interest of the employer In both proceedIngs was the same. In both proceedIngs, the hablhty of the employer was 10 Issue, whether It met the statutory obhgatlOn With respect to the termInatIOn payor severance pay under the Employment Standards Act, and whether It was hable to pay damages under common law In the wrongful dIsmissal actIon. It was merely the quantum of damages that was In Issue once the lIablhty had been establIshed. By contrast, a determInatIOn of the lIabIlIty In the proceedIng before the board of referees does not determIne the habIhty of the employer In the proceed1Ogs before the Gnevance Settlement Board, It determInes the habIlIty of the commISSion. In the words of Vice-Chair Finley, the employer does not have an "Interest In the outcome" and therefore cannot be conSidered a pnvy to the unemployment Insurance proceedIngs. In summary, as the employer IS not a party and IS not pnvy In both proceedIngs, thIS case does not meet the third CrItena set out In Rasanen. The purpose of Issue estoppel IS to prevent the rehtIgatton of the same Issue between the same party or pnvy In order to ensure fairness and JustIce, the subsequent tnbunal or court must be assured that It IS the very same Issue that was determIned In a prIor proceedIng, as the net effect would be to accept the Issue as If It were a proven fact. The necessity of meetIng the reqUIrements of the three cntena, IS to ensure that the Issues are on all fours In each proceedIngs. In thiS case, although the Issues In each forum may share SlmIlantIes, they are not the same Issue and have different focusses, and therefore cannot be a final determInation of the Issue, and the Interests of the partiCipants are not the same. Therefore I find that Issue estoppel IS not estabhshed In tills Instance. ThIS heanng Page 18 shall contmue on Its ments on a date to be fixed by the registrar Dated at North York, thIS 29th day of July, 1996. 4.~~ L ~~ I' ~ BelInda A. Kirkwoo , V Ice-Chairperson