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HomeMy WebLinkAbout1996-1636.FRANSSEN96_05_16 ~ ONTARIO EMPLOYES DE LA COURONNE CROWN EMPLOYEES DE L'O/'ffARIO 1111 GRIEVANCE COMMISSION DE ,;- SETTLEMENT REGLEMENT BOARD DES GRIEFS 180 DUNDAS STREET WEST, SUITE 2100, TORONTO ON M5G-1Z8 TELEPHONEITELEPHONE (416) 326-1388 180, RUE DUNDAS OUEST, BUREAU 2100, TORONTO (ON) M5G 1Z8 FACSIMILEITELECOPIE (416) 326-1396 GSB # 1636/96 OLBEU # OLB263/96 IN THE HATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN OLBEU (Franssen) Grievor - and - The Crown in Right of Ontario (Liquor Control Board of Ontario) Employer BEFORE L Mikus Vice-Chairperson FOR THE M McFadden GRIEVOR Counsel Koskie & Minsky Barristers & Solicitors FOR THE V Johnston EMPLOYER Counsel Hicks, Morley, Hamilton, stewart, Storie Barristers & Solicitors HEARING January 29, 1997 -- ? The gnevor began hIS employment wIth the LIquor Control Board m 1984 and, smce 1992, was Manager of the store m Moonbeam, Ontano, whIch IS near Kapuskasmg, Ontano On September 29, 1996, he filed a gnevance allegmg unjust termmatIOn and seekmg remstatement wIth full compensatIOn. The termmatIOn resulted from alleged mIsconduct datmg back to 1994 and whIch was the subject of thIrteen (13) NotIces ofIntended DIscIplme (NOID) These NOIDs are used extensIvely by thIS Employer to advIse employees of allegatIOns against them and to gIve them an opportumty to respond to those allegatIOns. ASIde from the first paragraph, wmch sets out the specIfic allegatIons, the letter IS standard and states as follows. WithIn three (3) calendar days from receIpt of thIS letter, you are asked to submIt a wntten statement by regIstered mall to my attention, Manager, DIstnct #3, explaImng the matter mentIOned above Should a meetmg be scheduled followmg the receIpt of your wrItten statement, you are entItled to Umon RepresentatIOn, smce dIscIplInary actIOn may result from thIS meetmg. If you chose not to respond, management WIll act on currently available mformatIOn. A decIsIOn concermng thIS matter wIll be made known to you m due course All of the NOIDs were sIgned by Mr Bob PoulIn, the DIstnct Manager and Immediate supervIsor of the gnevor At some pomt m 1996 Mr Poulm became concerned about certam IrregulantIes concernmg the gnevor s actIvItIes and, after dISCUSSIon wIth the CamIlle Clements-PItchkur Coordmator of Human Resource SerVIce deCIded to Issue SIX (6) NOIDs to the gnevor He delIvered those NOIDs 1 - . 2 personally after bemg advIsed by Ms. Clements-PItchkur not to dISCUSS the detaIls wIth the gnevor He met the gnevor outsIde the store at about 0910 hours, about twenty mmutes before the store was to open. They went to the gnevor's office and, when the gnevor began a casual dIscussIOn about general store matters, Mr Pouhn told lum he had bIgger concerns. TheIr stones dIffer shghtly about what happened next. Accordmg to the gnevor, Mr Poulm handed hIm the envelope contammg the NOIDS and gave hIm tIme to read them. Mr Poulm testIfied that he took the NOIDS out of the envelope and handed them to the gnevor In any event, It was agreed that, whIle the gnevor read the NOIDS, he made comments about them to the effect that they were nonsense, made no sense and were untrue. Mr Poulm dId not respond to the gnevor's comments. He pomted out that he expected a wntten response, referred to one of the NOIDS wluch stated that the gnevor was bemg suspended wIth pay pendmg mvestIgatIOn, asked hIm for hIS keys and requested he leave the store. The gnevor subsequently receIved two addItIOnal NOIDs, one dated August 23, 1996 and one dated September 9, 1996, by Pnonty Post. He forwarded to the Employer a wntten answer to each allegatIOn as requested m those letters. On September 13, 1996 he attended a meetmg m Kapuskasmg to dISCUSS those NOIDs Also m attendance were Dean Deluca, DIllon RepresentatIve, Ms, Clements-PItchkur and Mr Poulm, At the tIme Mr Poulm was aware of addItIonal allegatIons that had ansen smce the August 22, 1996, NOIDs but, because he had not had tIme to mvestIgate them, dId not ralse them wIth the gnevor Instead, on September 16 1996 he called the gnevor at home late m the afternoon and requested ~---------:- I 3 that he attend at the Kapuskasmg store as soon as possIble He dId not tell the gnevor the purpose of the meetmg. At the meetmg he was handed another envelope contammg an addItIonal five (5) NOIDS There was no dIScussIon about the contents of the envelope and the gnevor was told to read them later and to respond m wntmg as requested. On September 27, 1996, he was advIsed that hIS serVIces were bemg termmated and he filed the mstant gnevance. Mr McFadden, counsel for the Umon, took the posItIOn that the dIscharge was a vIOlatIOn of artIcle 26 3 and therefore vOId ab initio ArtIcle 26.3 reads as follows An employee who IS reqUIred to attend a meetmg for the purpose of dIscussmg a matter wluch may result m discIplmary actIon bemg taken agaInst the employee shall be made aware of the purpose of the meetmg and hIs/her nght to Umon representatIon in advance of the meetmg, The employee shall be entItled to have a Union representatIve at such meetmg provIded this does not result m undue delay In the Umon's submIssIons, artIcle 26.3 IS clear An employee IS entItled to know, m advance, the purpose of a meetmg that may result m dIscIplIne It IS equally clear that the allegatIOns m the NOIDS would, If true, result m dIscIplme The only Issue for thIS Board IS whether the encounters between the gnevor and Mr Poulm on August 22 and September 16, 1996, were meetmgs, If they were, the only conclUSIOn thIS Board can reach IS that there has been a breach of the collectIve agreement. On the eVIdence, argued the Umon, there can be no doubt that these encounters were meetmgs as contemplated under artIcle 26 3 On August 22, 1996, Mr Pouhn attended at the store before It - ... 4 opened and waIted for the gnevor to open the store. The gnevor had no alternatIve but to let Mr PoulIn mto the store and mto hIS office. He was hIS Immediate supervIsor SImIlarly, on September 16, 1996, the gnevor was, m essence, ordered to attend at the Kapuskasmg store as soon as possible. Agam, he had no alternatIve The gnevor was not adVIsed m advance of the purpose of these meetmgs or of hIS nght to Umon representation. Although It could be argued that, by September 16, 1996, he mIght have assumed the purpose of the meetmg, It IS the Employer's oblIgatIOn to ensure that the reqUIrements of artIcle 26.3 are met. At the August 22, 1996, meetmg, while Mr Poulm did not actIVely ImtIate any dIScussIon of the content of the allegations, he acknowledged, in cross-eXamInatIOn, that the gnevor's spontaneous responses were natural m the CIrcumstances. Even though the gnevor dId not make any Inculpatory statements at those meetIngs, the fact IS that he was placed In a pOSItIOn where he mIght have That IS contrary to artIcle 26 3 whIch IS Intended to proVIde protectIOn to an employee agaInst such statements agaInst Interest. The Umon contended that, not only dId the Employer fail to adVIse the gnevor of his nght to Umon representatIOn, the NOIDs state clearly that only after the gnevor has submItted hIS wntten statement IS he/she entItled to Umon representatIOn, That IS In dIrect conflIct WIth artIcle 26 3 The Umon relIed on the case of LaHay and Liquor Control Board of Ontario (June 5, 1995) GSB # 809/94 (M, Gorskv) which, It asserted, was applIcable m the mstant case In that case the ~ 5 gnevor was suspended and later dIscharged for alleged Improper cashIenng procedures, He was workmg as a store clerk on June 13, 1994, when he was called mto the Manager s office When he entered the office, he was preceded by two LeBO mspectors and an OPP officer HIS manager handed hIm a NOID WhICh set out the allegatIOns and asked hIm what he was domg on the mght m questIOn. He was adVIsed that he had been observed takmg cash from the cash drawer and was asked If he had any explanatIOn for It. Later It was discovered that the gnevor's actIOns had been vIdeotaped. The Umon, m that case, took the pOSItIOn that the dIscIphne was vOId ab initio because the dIscIplme was gIven In breach of artIcle 26 3 The Umon argued that artIcle granted a substantive nght to employees and that the nature of the mandatory protectIOn under artIcle 26 3 obhges the employer to adVIse the gnevor of hIS nght to Umon representatIOn pnor to a meetmg to dISCUSS matters that mIght lead to dIscIplme. It took the posItlon, as It does m the mstant gnevance, that It was mconceIvable that the meetmg of June 13, 1994 was anythmg other than a meetmg that mIght result m dIscIplme The Board, m the LaHay case, found that the meetmg of June 13, 1994 had a dual purpose, that was "to arrest the gnevor" and 'for the purpose of dIscussmg a matter WhICh [mIght] result m dIscIplmary actIOn bemg taken agamst" hIm" It stated that, whIle there was no oblIgatIOn on the employer to hold a meetmg, once It dId, It was reqUIred to conduct the meetmg m accordance WIth artIcle 26 3 The award stated, at page 53 - 6 The fact that the Gnevor was, by ExhibIt 4, furnIshed wIth an opportumty to submIt a wntten statement by regIstered maIl explammg hIS actIons wIth respect to the alleged improper cashlenng procedures on May 4, 1994 does not overcome the breach of hIS nghts under art. 26 3 His nghts had already been breached by that time. There IS a seamless connectIOn between the meetmg of June 13, 1994, the Gnevor's bemg suspended on that date (ExhibIt 4) and hIS bemg termmated on June 23, 1994 (ExhIbIt 6) It IS artIficIal to arbItranly dIVIde the process whereby a meetmg was held on June 13 to dISCUSS a matter whIch mIght result m dIscIplmary actIOn bemg taken agamst the Gnevor and the events followmg whIch were mextncably associated wIth It: That IS, to state that the June 13 meetmg was msufficiently related to the dIscharge of June 23 m an endeavour to make the suspenSIOn effected by ExhibIt 4 the only actIOn of the Employer that was VOId ab ImtIO. The events of the meetmg of June 13th, the suspenSIOn Imposed, and the dIscharge are so mextncably lmked so as to tamt not only the suspenSIOn but the dIscharge Cf. HlCkson-Langs (above) at pp 338-90 On that basIS the gnevance was allowed, m part. Because the Issue of Umon representatIon was not raIsed until later m the process, the Board was only prepared to compensate the gnevor to the date the Employer was gIven notIce of the Umon's motIon. The Umon took the posItIon that thIS Board IS bound by the decIsIOn m the LaHay case (supra), and should come to a sImIlar conclUSIOn. Mr Johnston, counsel for the Employer, took the posItIOn that the facts of the LeHay case are not sImIlar to the ones before thIS Board. In the LeHay case, the Board was dealmg wIth an employer mltIated actIOn mtended to Ilhclt some mculpatory statement from the gnevor The employer and the opp officer were attemptmg to get a confeSSIOn from the gnevor In the mstant case, the Employer SImply handed over a packet of NOIDs. No questIOns were asked and no admIsSIOns were sought. The purpose of the personal contact wIth the gnevor on August 22, 1996, was not to dlsclplme the gnevor but to relIeve hIm of hIS keys and hIS dutIes, On September 16 1996, nothmg happened. The gnevor was handed an envelope of NOIDs and was told to reVIew them at home /' 7 There was no dIscussiOn of the content of the NOIDs. The Umon IS seekmg to expand the substantIve fIghts under artIcle 26.3 on the slIght chance that an employee mIght make a comment when gIven a NOID The gIVmg of a NOID IS not a meetmg under the collectIve agreement. The meetmg regardmg those NOIDS was held on September 13, 1996 and a Umon representatIve was present, as reqUIred. That IS the mtent of artIcle 26 3 In the LaHay case, (supra), the Board applIed the facts of the case before it to reqUIrements of artIcle 26 3 In that case there was a meetmg held, at least m part, specifically for the purpose of dIscussmg the allegatiOns. In thIS case the Umon has Ignored the real purpose of the August 22, 1996 and September 16, 1996, encounters, whIch was not to dISCUSS the allegations but rather to gIve the gnevor the NOIDs. DECISION The partIes are agreed that artIcle 26 3 grants a substantIve nght to an employee to have the assIstance of a Umon representatIve whenever he/she IS reqUIred to attend a meetmg wIth the employer to dISCUSS any matter that mIght lead to dIscIplme. In the LaHay case (supra), the Board mc1uded extracts from many cases whIch explam the ratiOnale of SImIlar provISIons. For example, m Re Canadian Canners Ltd. And the International Association of Machinists (1974), 5 L A.C (2d) 323 (Brandt), at page 325, It was stated ~ 8 to ensure that the employee IS fullv advIsed of hIS nghts and also to facIhtate dIscuSSIOn whIch mIght lead to an armcable settlement of the dIspute, short of any formal actIOn taken, And, m Re Queen Elizabeth Hospital and C.U.P.E., Local 1156 (1988), 2 L.A.C (4th) 1 (DavIs), at page 6, It was SaId. .such representatIve wIll be m a better mental state at that moment to cope WIth the Issue than the gnevor and WIll be able to provIde the gnevor WIth tImely adVIce. Several other pnncIp1es have been estabhshed by Boards of ArbItratIOn mvolvmg a breach of the duty to provIde Umon representatIOn, the most sIgmficant bemg that such a breach renders the ensumg dIscIplme VOId ab initio In applymg that pnnciple to the facts of the mstant case, the Issue to be detenmned IS whether, m the clfcumstances of thIS case, artIcle 26 3 has been comphed WIth. There are, m dIspute, the NaIDs handed to the gnevor on August 22, 1996, the August 23, and September 9 1996 NOIDs, whIch were maIled to the gnevor, and the September 16,1996 NaIDs. WIth respect to the first group, It IS clear from the eVIdence that there has been a breach of artIcle 263 IrrespectIve of the shghtly dIfferent verSIOns of the actual conversatIOn between Mr Poulm and the gnevor, when Mr Poulm elected to present the NaIDs personally to the gnevor, he ImtIated a meetmg to dISCUSS matters that not only mIght lead to dIscIphne but, m fact, were destmed to result m dIscIplme, gIven the nature of the allegatIOns. In the cIrcumstances, the gnevor had no alternatIve but to meet WIth Mr Poulm, He was not advIsed m advance of the purpose of the meetmg, nor was he adVIsed that he could have a Umon representatIve aSSIst hIm. Even though Mr Poulm dId not make any mqumes of the gnevor the fact IS he put the gnevor In the vulnerable pOSItIon of possIbly makIng statements agaInst Interest WIthout the adVIce and aSSIstance of a Umon representatIve. That - ,... 9 the gnevor dId not make any mculpatory statements IS melevant to the Issue. The fact IS he could have and, Ifhe had, the Employer, no doubt, would have relIed on those admissIOns m determmmg whether to dIsciplIne the gnevor The NaIDs handed to the gnevor on August 22, 1996, are therefore, consIstent WIth the Junsprudence, vOId ab initio. For the same reasons, the September 16, 1996 NaIDs are vOId ab initio. The gnevor was summoned to a meetmg for the sole purpose of bemg handed addItIOnal NaIDs. Agam he was not advIsed before the meetmg of the purpose of the meetmg or of hIS nght to Umon representatIOn. Even though the NaIDs were m an envelope and there was no dIscussIOn of the allegatIOns themselves, the grievor was once agam placed m the vulnerable posItIon ofbemg handed notIces of mtended dIscIplme WIthout regard to hIS nghts under the collectIve agreement. It would have been natural m the cIrcumstances for 111m to have mqUIred about the contents of the envelope He knew he was m trouble by that tIme There was a substantIal rIsk that he could have made statements agamst mterest durmg that meetmg. If he had, agam I have no doubt that the Employer would have relIed on those statements at a c;ubsequent arbItratIOn hearmg ArtIcle 26 3 IS very broadly worded. An) dIscussIOn with an emplovee that might lead to dISCIplIne IS subject to the reqUIrement that an employee be advIsed In advance of the meetmg and the purpose and that he/she IS entItled to Umon representatIOn. GIVen the number and senousness of the allegatIOns m the gnevor's NaIDs, It IS safe to assume that the Employer would have to take actIOn agaInst the gnevor He was entItled to the protectIons under the collective agreement In the CIrcumstances, That leaves the Issue of the NaIDs that were maIled to the gnevor They clearly state that the --~ ,.. 10 employee IS to provide a wntten response to the allegatIons. Only after the Employer receIves the written response and schedules a meetmg IS the employee entitled to Umon representatIOn. By that tIme the employee might have already made statements agamst mterest that Will later be used agamst hlm/her Indeed, m thiS case the gnevor forwarded hiS wntten response to the Employer Immediately upon receipt of the NOIDs. If he had the benefit of the adVice of a Umon representatIve, he might have responded differently In my View, the mstructlOns m the NOIDs regardmg the written response are mconslstent with the Intent of article 26 3 Nevertheless, I am constraIned to Interpret the collective agreement before me It states clearly that the nghts under artIcle 26.3 arIse only If an employee IS reqUIred to attend a meetIng to dISCUSS a matter that mIght lead to dIscipline The NOIDs that were sent by mall to the gnevor do not fall Into that category It IS therefore the decIsIOn of the Board that the NOIDs dated August 23 and September 9, 1996 remaIn outstanding. All other NOIDs are VOId ab initio. Dated thIS 16th day of May 1996 /'1 /./ ~ )' /I ~c~t~ {i<i'l ' !ULb::' / ./ Loretta Mikus, V Ice~ChaIr