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HomeMy WebLinkAbout1996-1662VILLELLA97_02_25 ONTARIO EMPLOYfs DE LA COURONNE CROWN EMPLOYEES DE L'ONTARIO 1111 GRIEVANCE COMMISSION DE SEITLEMENT REGLEMENT BOARD DES GRIEFS 180 DUNDAS STREET WEST, SUITE 2100, TORONTO ON MSG 1za TELEPHONEffELEPHONE (418) 32~-1388 180, RUE DUNDAS OUEST, BUREAU 2100, TORONTO (ON) M5G 1Z8 FACSIMILEffELECOPIE (418) 328-1396 GSB # 1662/96 OPSEU # 96A311-414 IN THE HATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN OPSEU (Villella) Grievor - and - The Crown in Right of Ontario (Ministry of the Solitior General & Correctional services) Employer BEFORE G. H. McKechnie vice-Chairperson FOR THE S. Wahl GRIEVOR Counsel Koskie & Minsky Barristers & Solicitors FOR THE D. Costen EMPLOYER Counsel Legal Services Branch Management Board Secretariat HEARING December 16, 20, 1996 Mr J Villella was discharged effective September 5, 1996 by letter dated September 4, 1996 Prior to proceeding to hear the merits of Mr Villella's discharge grievance, the Union raised three preliminary objections The issues were, simply stated (1) there was an improper exercise of delegated authority, thus voiding the discharge, (2) Mr Villella was discharged while he was on an approved parental leave of absence and this is improper, (3) the Employer issued a Record of Employment, however, when Mr Villella filed his claim for unemployment insurance, the Employer did not elaborate upon the reason for the discharge which invited a finding by the Unemployment Insurance Commission that Mr Villella was not discharged by reason of misconduct; thus, the Union's position is that this finding binds me ISSUE OF DELEGATED AUTHORITY The Union argues that the delegation of authority to discharge an employee is both insufficient and improper As a result, the Vanier Centre for Women, the Employer, did not have the authority to discharge Mr Villella The letter of discharge was signed by Loretta Eley, Superintendent of the Vanier Centre, and in that letter she states as follows " it is my decision to dismiss you from employment for cause, consistent with provisions of the Public Service Act, Section 22 (3), effective September 5, 1996 II (p 3) The Ministry submitted an affidavit of Gordon Jamison who is responsible for the storage and maintenance of original documents for the proper functioning of the ministries of the provincial government Attached to Mr Jamison's affidavit is delegation of authority documentation pursuant to the Public Service Act In those documents, there is a statement by Robert W Runciman, Solicitor General and 2 Minister of Correctional Services consenting to the delegation of "powers and duties" by the Deputy Solicitor General and Deputy Minister of Correctional Services, "to any public servant or class thereof in the ministry" This was signed by Mr Runciman and dated the 27th day of September, 1995 Elaine M Todres, Deputy Solicitor General and Deputy Minister of Correctional Services signed the appropnate section of that document, thus delegating her powers and duties under the Public Service Act to various public servants, authorizing them to exercise authorities as set out within the delegation document and revokmg pnor delegations of authority However, Ms Todres did not date her section of the delegation of authority document The Union argues that the omission of the date nullifies the delegation of authority and thus prevents the Employer from discharging Mr Villella With respect to discharge, the delegation document states "Delegated official may dismiss a public servant for cause Delegated official shall consult with their supervisor, H R consultant and/or their personnel administrator before advising the employee of a decision " The delegated authority applies to four levels and it was agreed between the parties that the Superintendent of the Vanier Centre is a level three delegation Also within the delegation documents reference is made to the Public Service Act and in particular section "23 (3), Dismissal for Cause" The Union argues that there is no Section 23 (3) of the Public Service Act and as a result the delegation document is null and void The power to dismiss for cause in the Public Service Act is Section 22 (3) and that refers to the power of a Deputy Minister, which must be properly delegated ------ 3 Regulation 168/96 which is made under the Public Service Act states as follows (4) If a deputy minister dismisses a public servant under subsection 22 (3) of the Act, the deputy minister shall, (a) give the public servant written notice of the dismissal and of the reasons for it, (b) give written notice of the dismissal to the Commission, and (c) inform the public servant of his or her right to submit a grievance under part V The Union argues that these are mandatory directions and states that the written notice of the dismissal occurred because reasons were contained in the dismissal letter However, there is no evidence that written notice was given to the Commission or that the public servant was informed of the right to submit a grievance It is the Union's argument that these are conditions precedent to the exercise of the delegated power The Union referred to an earlier regulation, Regulation 977 which provided for a hearing if a public servant was dismissed This was replaced by the current Regulation 168/96 (supra) and the Union argues that there is no evidence before me to demonstrate that the conditions precedent in the new Regulation have been satisfied As authority for its position, the Union referred to Re Putnoki and Public Service Grievance Board 7 0 R (2d) 621 (1975) The Union also referred to Re OPSEU (P Gibson) and the Ministry of Correctional Services - GSB Decision 634/84 (1985) as authority for the requirement that the Deputy Minister had to date her delegation of authority The parties before the Grievance Settlement Board are always aware of the Public Service Act and in particular Section 22 (3) and as a result, it is the Union's contention that Ms Todres made a fatal error when she failed to date her delegation of authority ~ 4 The Union also referred to Re Clark et al and Peterborough Utilities Commission et al , Municipal Electrical Association et al , Interveners 24 0 R (3d) 7 (1995) In that case, the Municipal Utility was permitted to require a security deposit from customers and if a customer failed to pay that deposit, power could be disrupted The Union argued that the Court found that this was a quasi-judicial power of decision and argues that in the instant case, just cause is clearly a quasI-judicial power of decision It is the Union's view that Ms Todres' failure to sign the delegation of authority, and failure to provide any guidance with respect to just cause in the form of guidelines, meant that the delegation of authority was null and void The Ministry argues that this technical defect should not stand in the way of an inquiry into the merits of the discharge of Mr Villella In the Putnoki case (supra), the Ministry argues that there was no Collective Agreement and the difficulty concerned the hearing that was required under the Public Service Act In the Putnoki case the court found that "Any defect in the hearing under s 31 (2) is cured by the hearing before the Board" (p 635) The Board referred to was the Public Service Grievance Board It is the Ministry's argument that in the instant grievance, there is nothing in the Public Service Act, or in the Collective Agreement, which requires the Employer to present its case prior to coming before the Grievance Settlement Board (GSB) The Ministry distinguishes the instant situation from Re Clark (supra) in which the Peterborough Utilities Commission did not grant the proper delegation of authority, but in addition there was no right to appeal to a tribunal such as in the present case with the Grievance Settlement Board The Ministry referred to Adams and the Ministry of Correctional Services, GSB file 140/77 (1978) in which the Chair, Professor G Adams commented on the Union's objection, on technical grounds, which was raised after the evidence was heard Although Counsel for the Union in the instant case raised its objections at the outset, the Ministry argues that one can read into the Adams case that there is 5 a presumption of procedural regularity and the onus should be on the Union to show that there has been noncompliance The Ministry argues that acceptance of the Union's position that there was not the proper authority would result in the Employer returning the employee to work, correcting any procedural defect and then proceeding with the merits Although this would solve the technical issue with respect to Mr Villella's discharge, it makes no difference to the merits of the discharge It is the Ministry's argument that a substantive right has not been violated and referred to Re Cambridge Towel Corp and Amalgamated Clothing and Textile Workers Union et al 66 0 R (2d) 793 (1988) in which the Court overturned a Board of Arbitration award, which held that a notification clause provided a substantive right In reply, the Union argued that the Ministry had not addressed the major Issue which is the proper delegation of authority for the exercise of quasi-judicial powers It is the Union's position that the Superintendent at the Vanier Centre has not been given guidelines by the Deputy Minister and as a result, the exercise of the power of dismissal has been incorrect Counsel for the Ministry also referred to Re Harry S Ferguson and Ministry of Industry and Tourism, GSB file 35/76 (1977) in which the old procedure for discharge was canvassed The issue, simply stated, was whether Section 31 of the regulations of the Public Service Act which required a hearing convened by the Deputy Minister, was in conflict with Article 30 of the Collective Agreement, which provided for grievance and arbitration The Chair in that case Indicated that the regulations provided a "pre-trial procedure before a review of the matter took place by third party adjudication " (p 34) The union argued that the Ferguson case proceeded because there were defects in the Public Service Act hearing procedure and the question of whether there was a conflict between the Act and the grievance process The Chair found that a Collective Agreement would prevail in 6 regard to any conflict The Ministry argues that the Collective Agreement has a full process and, as a result, it is that process that should govern After a review of the arguments and jurisprudence submitted by both parties, I come to the conclusion that the Union's preliminary objection fails There IS no question that the delegation document is not dated by Ms Todres That is evidence of sloppy administration, however, it is not, in my respectful opinion, fatal to proceeding to hear the merits of the discharge grievance It is clear that the Solicitor General signed and dated the appropriate delegation of authority and it also clear that Ms Todres signed her delegation The Union argued that without the dated delegation of authority and guidelines, the discharge of any public servant, not simply Mr Villella, would be null and void With respect, I disagree In Re Clark (supra) the issue was the appropriate forum for someone to contest the Utilities Commission's decision In that case, the only forum was the Court, whereas in the instant case, the Collective Agreement contains a complete grievance and arbitration procedure and a full exploration of evidence and argument can be made in that forum Guidelines which were an issue, and absent, in the Clark case are present in the instant situation because the guideline is "just cause" It is well established in the arbitration jurisprudence what the parameters of just cause are, and as a result, further guidelines would not be needed I also find that the designation of section 23 (3) instead of 22 (3) is a typographical error This is not fatal to the delegation of authority It is clear from the documentation that the Ministry was referring to the appropnate section of the Public Service Act The Union also argued that the "comments" contained in the delegation of authority documents, that any delegated official must consult with the Supervisor, H R Consultant and/or Personnel Administrator, had not been done, or at least no eVidence had been submitted that these items had been completed The delegation 7 documents that were submitted show the statements in a comments section and do not appear to have the force of a statutory requirement However, even if I am mistaken, the fact that the Ministry did not provide evidence that such actions had been undertaken, does not mean that the actions were not undertaken I agree with the Ministry that the onus in this preliminary objection rests with the Union to demonstrate that actions had not been taken In Re Adams (supra), there is a presumption of procedural regularity and I agree that unless there is a demonstration of irregularity, the presumption is one of procedural regularity In Re Putnoki, the issue was whether a hearing process had to be completed as a conditIOn precedent to a hearing by the Public Service Grievance Board (p 625) The Court concluded, as already noted (supra), that defects could be cured by the Board (p 635) In the instant case, the technical or procedural defect of Ms Todres can be cured by the full hearing at the GSB The Issue of a technical defect versus substantive right was canvassed in Re Cambridge (supra) and the instant case is similar in that the failure to enter a date is a technical defect As a result, I find on the matter of the proper delegation of authority that, although the Deputy Minister was careless when she failed to enter a date, nonetheless this does not make the discharge of Mr Villella void ab initio Any procedural irregularity of this type can be cured by the holding of a hearing and that is precisely what the Collective Agreement and the grievance and arbitration procedure within that Collective Agreement are designed to do As a result the first preliminary objection of the Union IS dismissed 8 DISMISSAL WHILE ON APPROVED PARENTAL LEAVE The Union raised a preliminary objection that the Employer was prevented from discharging Mr Villella while he was on an approved parental leave The parties agreed that Mr Villella submitted a leave of absence request dated May 28, 1996 There IS some dispute with respect to when the leave was to commence On the form that Mr Villella submitted, the date "June 3/96" has a line drawn through it and above that is found "June 10/96" Regardless of when the leave was to start, it IS clear from the document submitted that Mr Villella was given an approved leave A letter dated August 26, 1996 and signed by J Lindsay, Deputy Superintendent, states that. "Your parental leave was to commence June 10, 1996 " Mr Villella was then informed of some meetings that were to be held concerning incidents upon which the discharge was based For the preliminary objection these meetings are not important, except that they indicate that meetings to diSCUSS the allegations of the Employer were scheduled while Mr Villella was on parental leave The issue IS whether the Employer was prohibited from discharging Mr Villella while he was on an approved parental leave The Union argued that Article 51 6 of the Collective Agreement is operative That article states as follows 51 6 An employee returning from a leave of absence under Articles 51 1 or 51 4 to the ministry in which he or she was employed immediately prior to such leave, shall be assigned to the position he or she most recently held, if it still exists, or to a comparable position, if it does not, and continue to be paid at the step in the salary range that he or she would have attained had he or she worked during the leave of absence 9 The Union also argues that the Employment Standards Act prohibits the Employer from terminating Mr Villella while he is on an approved leave Section 43 (1) states as follows The employer of an employee who has taken pregnancy leave or parental leave shall reinstate the employee when the leave ends to the position the employee most recently held with the employer, if it still exists, or to a comparable position, if it does not The Union also argues that Section 44 of the Employment Standards Act clearly prohibits the Employer from discharging Mr Villella while on an approved leave That section states as follows 44 An employer shall not intimidate, discipline, suspend, layoff, dismiss or impose a penalty on an employee because the employee is or will become eligible to take, intends to take or takes pregnancy leave or parental leave The Union argues that Bill 49, an Act to Improve the Employment Standards Act, specifically Section 64 5 gives jurisdiction to an arbitrator to apply the Employment Standards Act In support of its arguments, the Union referred to Re 169809 Canada Ltd v Ontario (Ministry of Labour) 16 C C E L.(2d) 16 (1993) in which an employer claimed that he did not know the law In that case, an employee had asked for, and was granted, parental leave from June 1991 to September 1991 The employer, concerned about that employee's productivity hired a replacement employee in May to begin in June The employee was then given his leave and on his return to work was terminated At paragraph seven of the decision, the referee stated "The employer's position is that the act of termination was merely delayed, 10 but was not caused by the employee's parental leave" The referee concluded that the particular employee In fact had no job even as he was requesting parental leave" (para 11) The referee found that the employer should have allowed the employee to return to the same or comparable position and then decide if the employee was unsatisfactory prior to termination The Union also referred to Re Medical Arts Dispensary of Ottawa (1990), a decision of the Ontario Ministry of Labour, Office of Adjudication in 1992 In that case the Medical Arts Dispensary terminated an employee's employment during her pregnancy leave The referee found that the employer had breached both Section 43 and Section 44 of the Employment Standards Act The referee concluded, at page seven of the decision, that the employer had violated Section 43 when it did not reinstate the employee to the same or comparable position, if the same position did not exist The Union also referred to Re Corporation of the City of Brampton and Amalgamated Transit Union, Local 1573 (1978) 19 L.A C (2d) 236 (Shime) In that case, the arbitrator found that the employer was correct to suspend a grievor, but was required to pay the grievor for the statutory holiday which occurred during the suspension (p 240) The Union argues that the issue is the difference between what could be called the "causation school" and "statutory reason school" in the matter of interpreting Section 44 of the Employment Standards Act It is the Union's view that the "statutory reason school" is appropriate and that Section 44 (supra), specifically the word "because", means that an employer is prohibited from discharging an employee when that employee is on an approved parental leave The Ministry argues that the "causation school" is the appropriate manner of interpretation of Section 44 In the Ministry's view, a review of the Employment 11 Standards Act will demonstrate that the word "because" is put in the section to prevent an employer from taking action for the reason that an employee has become involved in parental leave whether it has been taken or whether there is an intent to take such leave In addition, the Ministry refers to the collective agreement in the instant case in which there is no prohibition in that document restricting the Employer's right to discharge or discipline while an employee is on an approved leave The Ministry referred to a decision of an Office of Adjudication referee in the matter of Ontario Blue Cross and the Ministry of Labour and C Fletcher (decision dated August 18, 1995, File # ES68/93-358) In that case the employer did not wait until the end of a parental leave to terminate the employee and the claimant argued that Section 43 of the Employment Standards Act gave her an absolute right to return to her position At page 28 of the decision the referee states as follows "In my view the question boils down to this - is it open to the Employer to effect a bona fides termination of an employee who has taken a pregnancy or parental leave or is the right to reinstatement absolute as argued by the Claimant such that the Employer must reinstate for an indeterminate period even where it had established that the employee would have been terminated had the leave not occurred? For the reasons set out below I do not believe that the language of Part XI goes so far In my view the scheme taken as a whole is meant to limit the economic consequences of childbirth and adoption by creating a mandatory right to a leave and then reinstatement to the former position etc The scheme does not create an absolute right to a job for everyone who is taken leave under the part " In that case, the Medical Arts decision is reviewed and the referee disagrees with those persons who interpret the Medical Arts case as supporting an absolute right of reinstatement 12 At page 30-31 in the Ontario Blue Cross case, Referee Muir states "While I am not in agreement with certain of the comments of the Referee regarding the obligation of an employer to create a position for a returning employee, I also do not read the decision as entirely precluding the possibility of a bona fide termination I agree that the decision of an employer to terminate an employee in close proximity to a leave must be subject to intense scrutiny because, to put it squarely, the requirements of these provisions are onerous for employers and it will often be the case that an employer will find It convenient and or more efficient to operate without the returning employee This IS precisely the mischief that these sections were intended to avoid It does not follow from that nor do I take the Referee to be saying that the Employer's right to manage the workplace had been nullified " Referee Muir goes on to relate the absurd position that could result if an employee took part in "egregious misconduct" and the employer would have to reinstate the employee simply because a leave was taken (p 33) The Ministry also referred to an Office of Adjudication decision, File ES68/93-66 between 241 Pizza limited and Ministry of Labour, a decision of Referee Alter, dated September 21, 1993 In that case, Referee Alter states "I find that by the inclusion of the word "because" in the new section, the Employee has only to demonstrate some causal connection between her pregnancy and her termination for the Employer to be in violation of the new section" (p 4) The reference to "new section" indicates the change in the Employment Standards Act In that case, the referee found the employer had acted contrary to Section 44 and that the release of the employee was caused bv her pregnancy (emphasis mine) 13 The Ministry also referred to an Office of Adjudication decision, File ES67/-93-46 between Helene Goulet and Uniglobe Tri-Pro Travel Ltd and the Ministry of Labour, a decision of Referee Alter dated June 18, 1993 On page five of the decision, the referee states as follows "I do not believe there is any reason why an individual on parental leave ought not to have each and every benefit, salary increase, or perquisite that other employees receive I find that the comments of Dixon C J must be taken to extend the meaning of Section 44 not only to prevent employers from certain enumerated actions, but also to compel employers to treat individuals on parental leave exactly the same way as other employees " The Ministry argues that it would be a charade to reinstate Mr Villella wait and then discharge him again This runs counter to sensible labour relations The Ministry referred to Re Corporation of the City of Brampton (supra) in which the Arbitrator upheld the discipline but ordered the employee to be reimbursed for the statutory holiday that fell within the leave period The Ministry suggests that, that technique is available to me at the end of the instant case The Union argues in reply that in the Ontario Blue Cross case (supra) the referee found that there was an absolute right At page 33 the referee states as follows "Absent any language in the Act indicating the contrary it is undoubtedly the case that upon the completion of the leave and reinstatement an employer can deal with the employee as it would any other employee including dispensing discipline, lay-off, or the termination of that employee II After reviewing the jurisprudence submitted, and legal argument, I come to the conclusion that the Union's objection must fail The appropriate section of the Employment Standards Act is Section 44 and the construction of Section 44, in my respectful opinion indicates a causation In other words, simply because an 14 employee intends to take or takes a parental leave, the Employer is precluded from Imposing any dismissal or such other actions prohibited by Section 44 I agree ; - with Referee Muir in the Ontano Blue Cross case (supra) that terminations in close proximity to a leave must undergo close scrutiny However Referee Muir does not indicate that an employer is prohibited from terminating an employee for cause The Union argued that Referee Muir's comments indicate that there was an absolute right However, at page 40 of the decision the referee states that the language of Section 43, " does not protect an employee in their employment either before or after a pregnancy leave" The referee goes on to state " Thus even if the employer is entirely precluded from instituting a bone (sic) fide termination during the leave there is nothing preventing a proper termination with notice after the leave has terminated unless it was made for a reason prohibited by Section 44" (p 40) That statement gives credence to the causation school of interpretation of Section 44 In my respectful opinion the reason for discharge, specifically, cannot be "because" an employee takes a parental leave The referee goes on to state as follows "Having concluded that there was no violation of the Act in the termination itself the question then arises whether an employer who decides to termin9te while a leave is underway must wait until the leave has ended and the employee is reinstated It is a troublesome issue and one that I am not inclined to answer except to the extent that is necessary to decide this matter I am inclined to the view that the right to reinstatement is an absolute one in the sense that an employer's rights with respect to an individual are suspended during the leave, that is the employer must reinstate and then exercise their rights at that time However in the instance where the employee has committed some egregious act of misconduct it makes little sense to require the employer and equally the employee wait for the charade to run its course "(pp 40-41) The referee goes on to state that it is his view, " the employer's rights to manage during a leave are suspended" (p 41) 15 However, the referee also states at page 41 ..,- "If it is possible to violate section 43 by a termination during a leave I find that it was a technical violation only and one that attracts no liability and damages" I take from the case law submitted that, firstly, the right to terminate during a leave IS not prohibited by Section 44 and the reason for that is the meaning given to the word "because" is one of causality Secondly, I find that the decision of Referee Muir in the Ontario Blue Cross case, while apparently contradictory at points, nonetheless comes to the conclusion that it would be a charade to suspend any discipline or discharge for an egregious act of misconduct until the end of a leave of absence That this could be a technical violation is a reasonable approach and I adopt the Ministry's argument in the instant case when it stated that if there is compensation required during the period of the leave, even if just cause is found for discharge, then that can be settled at a later point. As a result, the Union's preliminary objection on the matter of termination during an approved leave is dismissed UNEMPLOYMENT INSURANCE COMPENSATION ISSUE The issue is the conduct of the Employer in the matter of Unemployment Insurance and a finding made by Human Resources Development Canada The factual situation is straightforward Mr Villella initiated his claim for Unemployment Insurance and the Employer issued the Record of Employment which stated that the reason for the termination of employment was "discharge for cause" An Insurance agent with Human Resources Development Canada, B Drebot, attempted to contact the Vanier Centre to get more detail about the reasons for ~ 16 Mr Villella's discharge The parties tabled a variety of documents indicating that Human Resources Development Canada attempted, unsuccessfully, to discover ,,- more details and by letter dated November 5, 1996, B Drebot wrote to the Ministry indicating that Mr Villella's claim had been approved and stated as follows "We have done this because based on the Unemployment Insurance Act, the reasons for losing his/her employment does not constitute misconduct" By letter dated November 22, 1996 the Ministry initiated an appeal of this decision and stated that, "the employer did not have meaningful opportunity to respond to a letter dated October 10, 1996 " The Union states that the Ministry and I, are bound by the finding of the unemployment insurance agent whereas the Ministry takes the position that the evidence of letters and requests are irrelevant since the Unemployment Insurance decision process has not yet been finalized The Union uses as basic support for its argument Re Rasanen v Rosemount Instruments Limited (1994) 170 R (3d) 267 In that case the requirements for issue estoppel are set forward The Rasanen and Rosemount case is a wrongful dismissal case, however, the Union argues that the issue before me is one of issue estoppel The requirements of issue estoppel are set out at page 278 as follows " (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 party to the judicial decision or their privies were the same persons as the parties to the proceedings in which the estoppel is raised or their privies" Issue estoppel is used to prevent relitigating issues and to bring a finality to a decision making process The Union argues that, in the instant case, the Ministry IS unable to assert that there is any real difference between misconduct for - 17 unemployment insurance and lack of just cause for a discharge case As support for thIS, the Union refers to Re Randhawa v Everest and Jennings Canadian Ltd - (1996) 0 J No 2181 In that case, an employee's claim for unemployment benefits was allowed and the company indicated that it was going to appeal this decision The appeal was then heard before a three person board pursuant to the Unemployment Insurance Act The Board found that the company's appeal failed and that the employee was entitled to benefits The Court in that case came to the conclusion that issue estoppel applied and that the company had an adequate opportunity to present its case because a hearing was held The Union argues in the instant case that, the type of decision that the Unemployment Insurance Commission has made to provide Mr Villella with benefits is comparable to that made by the Employer when it decided to discharge him It is also comparable to the Employment Standards Act structure In the Union's view, the situation with respect to Mr Villella is made more serious because the Employer did not respond to the insurance agent's requests It is the Union's view that the Employer ignored the Unemployment Insurance Commission's requests and is now bound by the determination made by the insurance agent The Union argues that the Randhawa case (supra) overrules prior cases that took the position that unemployment insurance procedures are different than those required by grievance arbitration The Ministry argues that Mr Villella was discharged on September 5, 1996 and applied for unemployment insurance The Ministry then provided, appropriately, a Record of Employment indicating that Mr Villella was discharged for cause and the Ministry has not abandoned that position The unemployment insurance agent then rendered his decision and the Ministry was notified with respect to Its right to appeal There was no proceeding in front of the unemployment insurance agent, it 18 was simply a decision by that agent without information provided by the Employer A hearing, If one is held, IS before a Board of Referees and that has not taken place The Ministry argues that in the Randhawa case, the issue was before the Board of Referees and it was then taken to the Court. That is not the situation in the Instant case In the Rasanen case, the issue followed the Employment Standards Act process and there was a hearing pursuant to Section 50 of the Employment Standards Act in effect at the time It is the Ministry's argument in the instant case that it and Mr Villella are still at the officer or investigation stage In the Employment Insurance Act (1996) there is still a Board of Reference and Sections 48-53 set forth the claims process The Employer directs me to Section 49 (2) whIch states as follows (2) The Commission shall give the benefit of the doubt to the claimant on the Issue of whether any circumstances or conditions exist that have the effect of disqualifying the claimant under section 30 or disentitling the claimant under section 31, 32 or 33, if the evidence on each side of the issue is equally balanced Sections 114 to 123 of the Employment Insurance Act set forth the appeal process indicating that there is an appeal to a Board of Referees and a further appeal can be made to an Umpire In the Ministry's view, this process has not yet been started and the Ministry argues that finality is only at the Umpire stage In Re Randhawa, the Ministry argues that the Board of Reference made a determination of whether the employee quit but in the instant case the situation has not progressed that far The Ministry argues that the GSB has ruled on the Union's issue and I should defer to the findings in those cases In Re OPSEU (Leeder) and Ministry of Health, GSB deCision dated January 15, 1996 File 2498/93, 164/94, 296/94) the issue was identIcal to that put before me - there had been a prior determination by a Board of Referees pursuant to the Unemployment Insurance Act (p 1) In that case, the 19 employer did not appeal to the Board of Referees within the required time period and also did not present any evidence Beginning at page 14 of that decision the GSB reviews the criteria for issue estoppel At page 15, the GSB concluded that "Reinstatement, which Mr Leeder was seeking, was not a possible remedy in the context of the Board of Referees" This case was heard prior to the decision of the Court in Re Randhawa (supra) and the Union argues that it has been superseded In a separate GSB decision, Re OLBEU (Mather) and Liquor Control Board of Ontario, (1996) GSB file 2260/95, the GSB was presented with the same issue as that before me In that case, a Board of Referees had concluded that Mr Mather had been terminated as a result of his own misconduct and upheld the denial of benefits The Liquor Control Board argued that the GSB had no jurisdiction to determine the issue of cause because of the decision of the Board of Referees under the Unemployment Insurance Act As in the Leeder case, the GSB reviewed the criteria for issue estoppel and concluded that the Liquor Control Board's objection must fail and that the case could be heard on its merits The Ministry also argued that an early decision of the GSB by Mr Shime - E Blake et al and Amalgamated Transit Union, a decision dated May, 1988, put forward the proposition that the GSB is one entity and as a result each decision becomes a decision of the Board and therefore I should be wary of overturning another panel's view Finally, the Ministry referred to Re OPSEU (White) and Ministry of Community and Social Services, GSB decision dated October, 1996, GSB file 810/95 In that case, the employer took the position that it should be allowed to rely on the conviction of the grievor in the Criminal Court The Vice Chair concluded " the Board does not consider it appropriate to defer to the finding of fact made by a Jury" (p 29) The Ministry argues that the GSB is jealous of its own process and as a result should not simply defer to another forum 20 The starting point for this decision rests with the cnteria for issue estoppel These criteria were analyzed in great detail in both the Leeder and Mather cases (supra) The Mather case was heard and decided following the Randhawa case (supra), however, there is no reference to Randhawa and it is therefore not possible to know whether or not that case was brought to the Chair's attention At page 13 in reviewing the Leeder case, the Vice Chair states as follows "Although the board of referees in determining whether the employee engaged in willful misconduct, made a determination that the employer had reasonable cause to discharge the employee, I do not find that such a finding is conclusive of the issue before this Board The board of referees was not being asked whether the Employer had caused a discharge to the Grievor, but whether the employee engaged in willful conduct. Therefore whether the employer had reasonable cause to discharge the employee, may be a significant factor in the decision of the board of referees, but it is not the issue that it had to determine" (p 13) I find that the analyses in the Mather case and the Leeder case are persuasive The issue before me is not whether Mr Villella engaged in willful conduct which led to his dismissal but, rather, whether or not the Employer had just cause to discharge the Grievor and as pointed out in the Mather case, " to determine whether there was cause to discharge the grievor, and whether the dismissal should be upheld, mitigated or revoked as must be considered under the Crown Employees Collective Bargaining Act and the Labour Relations Act as Incorporated" (pp 1 3-14) With respect to the question of whether there was a prior final decision, Vice Chair Kirkwood addressed this issue in the Mather case In Rasanen, the Employment Standards Act's procedure was involved whereas in the instant case and in the Mather case, it is the Unemployment Insurance Act or, as now named, the Employment Insurance Act. In the instant case, I find the Ministry's argument succeeds, that is, the process is not finished The Ministry has appealed the 21 Insurance Agent's decision and a Board of Referees will hear that appeal, however, even that is not the final step since an Umpire can become involved With respect to the question of whether or not the parties or their privies are common to both proceedings, the analyses provided in both the leeder and the Mather cases are instructive Before the Unemployment Insurance Commission the Issue is whether or not Mr Villella is entitled to benefits and therefore whether the Commission will pay benefits to an individual The case in front of the GSB is whether or not Mr Villella was discharged for just cause The result could be to uphold the discharge, or to impose a lesser penalty, or order full reinstatement with or without compensation The parties are different In the Unemployment Insurance situation, the parties are the Commission and Mr Villella with input from the Employer In the case in front of the GSB, the parties are the Union and the Employer and the Unemployment Insurance Commission has no part in that process In the Unemployment Insurance case, the Employer has no interest in the outcome because there is no liability and in the instant case, the Unemployment Insurance Commission has no interest in the outcome because it bears no liability In the Rasanen case the issue of legal consequences was addressed In my respectful opinion, the legal consequences are very different between the determination made by the Unemployment Insurance Commission and that made by the GSB In the Randhawa case the Court concluded that the issue was similar in law At paragraph 9 the Court states "While the legal characterization of the issue to be addressed by the Board of Referees is not identical to the issues raised by the pleadings here, it is clearly similar in law Factually, it is identical, namely, did the plaintiff voluntarily leave his job or did he misbehave in failing to notify his employer for the reason of his absence?" 22 In Rasanen, Abella J A addressed this issue and indicated that different legal consequences could flow from the same factual question In my respectful, ~ opinion, the factual questions are different As already pointed out, the issue in front of the Unemployment Insurance Commission is one of willful conduct whereas In front of the GSB the question is one of just cause for discharge To determine if the question being put to the Unemployment Insurance Commission and the GSB IS the same requires an analysis of the facts The Unemployment Insurance CommIssion is attempting to determine whether or not the claimant should be disqualified from benefits, " if the claimant lost any employment because of their misconduct. "(S 30)( 1) Before the Unemployment Insurance Commission the test is whether the claimant, in this case Mr Villella, engaged in conduct which would disentitle him from benefits In the case in front of the GSB, the question asked is whether or not the Employer violated the collective agreement by failing to have just cause for the discharge of Mr Villella This question is tied to the legal consequences flowing from a decision, and that makes the disentanglement of the issues difficult Nonetheless the answer, in my respectful opinion, can be stated quite simply Before the Unemployment Insurance Commission the issue is simply whether or not Mr Villella is entitled to benefits There is no issue of reinstatement, there is no issue of reinstatement with some penalty, nor is there any issue with respect to the payment of wages Even if misconduct is to be judged the same in both cases, the legal consequences cannot be stated as simply one of semantics The GSB must decide if the collective agreement has been breached and that is not the question being put to the Unemployment Insurance Commission The Arbitrator, or the GSB, looks at just cause whereas the Unemployment Insurance Commission looks at cause These can be different and in my respectful opinion are different As a result, I find that the criteria for issue estoppel are not present and the Union's preliminary objection on this matter must fail 23 In conclusion, all three preliminary objections raised by the Union have been rejected and the hearing can proceed on the merits on dates already scheduled Dated at Toronto this ZSth day of February, 1997 " ~~-II~~ Graeme H McKechnie Vice-charr