HomeMy WebLinkAbout1996-1923BONACCI97_04_09
ONTARIO EMPLOYES DE LA COURONNE
CROWN EMPLOYEES DE L'ONTARIO
GRIEVANCE COMMISSION DE
1111 SETTLEMENT ,
REGLEMENT
BOARD DES GRIEFS
180 DUNDAS STREET WEST, SUITE 2100, TORONTO ON M5G 1ZS TELEPHONEITELEPHONE (416) 326-1388
180, RUE DUNDAS OUEST, BUREAU 2100, TORONTO (ON) M5G 1ZS FACSIMILEITELECOPIE (41~) 326-1396
GSB # 1923/96
OPSEU # 96A528
IN THE HATTER OF AN ARBITRATION
Under
THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT
Before
THE GRIEVANCE SETTLEMENT BOARD
BETWEEN
OPSEU (Bonacci)
GRIEVOR
- and -
the Crown in Right of Ontario
(Ministry of the Solicitor General &
Correctional Services)
Employer
BEFORE N. Dissanayake vice-Chair
FOR THE M Bevan
GRIEVOR Grievance Officer
Ontario Public Service Employees Union
FOR THE A Gulbinski
EMPLOYER Grievance Administration Officer
Ministry of the Solicitor General &
Correctional Services
HEARING March 19, 1997
2
PRELIMINARY AWARD
The grievor, Ms Paula Bonacci is a Probation Officer She has
grieved a five day suspension without pay imposed on her by the employer
by letter dated September 26, 1996, on the basis of an allegation that the
grievor contravened the Ministry's confidentiality and conflict of interest
policies Specifically it was alleged that she accessed confidential
information in the Metro-Toronto Police CPIC system with the assistance of
a police officer in the Metro Police, who was a friend
At the commencement of the hearing the parties agreed that the Board
should decide a preliminary issue raised by the union to the effect that
the discipline imposed, quite apart from the issue of just cause, was
invalid because of undue delay on the part of the employer in imposing the
discipline
There is no significant dispute in the evidence as to the sequence
of events Mr Peter Lesperance, Area manager and the grievor's
supervisor, testified that on October 25, 1996, an officer from the Metro-
Toronto Police Internal Affairs Dept (Hereinafter "Internal Affairs") had
attended at his office at a time when he was not in He had left a message
that he would be contacting Mr Lesperance again in order to discuss a
complaint received that a probation Officer and a Police Officer had
released CPIC information about an individual who was not a current
Ministry client
On October 26th, the grievor approached MI' Lesperance and informed
him that Internal Affairs had wanted to speak to her She declined to
discuss why they wanted to speak to her, but assured that it did not
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involve her employment The same day, Internal Affairs contacted Mr
Lesperance and requested a meeting with him and the grievor on October 27
Mr Lesperance contacted the Ministry Legal Dept , and was advised that the
grievor could not be compelled to attend such a meeting Mr Lesperance
informed the grievor of the request by Internal Affairs for a meeting, but
she declined to attend
As a result, Mr Lesperance met with Internal Affairs on October 27,
1996 without the grievor He was informed at the meeting that a formal
written complaint had been received that the grievor and a police officer
had accessed and released CPIC information about the complainant and that
Internal Affairs, as part of its investigation into the Police Officer's
conduct, wished to speak to the grievor about the complaint Mr
Lesperance advised Internal Affairs that the grievor did not wish to attend
the meeting and that she could not be compelled by the employer It is
clear that during this meeting Internal Affairs verbally communicated to
Mr Lesperance, the name of the complainant and the details of the alleged
participation on the part of the grievor in the release of the CPIC
information However, Mr Lesperance's request for a copy of the complaint
was refused When Mr Lesperance pursued the request, Internal Affairs
stated that they would look into the possibility of providing a copy of the
complaint
Following this meeting, through the month of November, there were
numerous contacts between Mr Lesperance, the Regional Manager, the
Personnel Dept and Internal Affairs The matter of obtaining a copy of
the complaint was pursued but without success On November 22, 1995, a
formal \oJritten request for a copy of the complaint was lodged by Mr
~
4
Lesperance with the Freedom of Information unit of the Metro-Toronto
Police, stating that it was need.ed for the purpose of an internal
investigation of a Probation Officer, who may have violated Ministry
Policy
On November 20, 1995 Mr Lesperance informed the grievor that
Internal Affairs was continuing to pursue a meeting with her She informed
that she still did not wish to meet with them The evidence is that Mr
Lesperance stated to the grievor to the effect that "all of this may lead
to" an internal Ministry investigation into the grievor's role in the
alleged conduct
Sometime around November 22, 1995, Mr Lesperance also wrote to the
Ministry Regional Office, requesting that an investigation be commenced
into the alleged conduct on the part of the grievor However, according
to Mr Lesperance there was a general view that a copy of the formal
complaint should be obtained before the employer should act Therefore,
the employer awaited the response to Mr Lesperance's Freedom of
Information request
This response came sometime in December 1996 in the form of a "police
report", which essentially confirmed the information verbally communicated
to Mr Lesperance on October 27 However, a copy of the complaint was not
still provided Upon receipt of this report, senior management decided to
present all of the available information to the Ministry's Investigations
Branch for their review and decision as to whether there were grounds to
launch an investigation
5
The evidence is that on or about February 13, 1996 Mr Peter Lambert
was appointed to investigate the all~gations The grievor was advised at
the time of the appointment of the investigator In early April Mr
Lambert contacted the grievor and scheduled an interview for April 26,
1996 At this interview, attended by Mr Lambert, Mr Lesperance, the
grievor and her union representative, the grievor denied that she had
requested the police officer to access information through the CPIC system
The next contact the grievor had was when she was informed on August
6, 1996 that a disciplinary meeting was scheduled for August 14, 1996
However, this meeting was rescheduled for September 26, 1996 because the
grievor took an unscheduled vacation to travel to Italy for personal
reasons The notice of the meeting stated that the purpose of the meeting
was to afford the grievor the opportunity to respond to allegations that
she had violated three specific policies that governed her, "by accessing
CPIC for personal reasons on or about August 21, 1995" She was advised
that she may be accompanied by a union representative of her choice who may
speak on her behalf The grievor attended the meeting on September 26,
1996 accompanied by a union representative and denied any wrong-doing By
letter of the same date, the employer concluded that the allegations were
substantiated and imposed a 5 day suspension without pay on the grievor
The union takes the position that on October 27, 1995 the employer
had all of the detailed information as to the alleged wrong-doing on the
part of the grievor The discipline was not imposed until September 26,
1996 It is therefore submitted that "a delay of 11 months" occurred It
is thus contended that the delay was undue and unreasonable and should
render the discipline void Union counsel broke down the period of delay
~_u~__~
6
as follows From October 27, 1995, it took some 3-1/2 months before an
investigation was initiated on Februgry 13, 1996 The investigator did not
meet with the grievor till April 26, 1996, a further delay of over two
months Following the investigation interview, the grievor heard nothing
until August 6, 1996 when she received the notice of disciplinary meeting
It is the union's position that anyone of these delays is reason enough
for the Board to strike down the discipline While recognizing that the
collective agreement does not stipulate any time limits for the imposition
of discipline, counsel submits that the stipulation of time limits for the
filing and processing of grievances through the grievance procedure
indicates the parties' desire to resolve disputes in an expeditious manner
Relying on Re Borough of North York, (1979) 20 LAC ( 2d) 289 (Schiff) ,
Re Brunswick Bottling Lt~ , (1984) 16 LAC (3d) 249 (Iwanicki) and Re
Miracle Food Mart, (1988) 2 LAC ( 4 th 36 (Haefling) counsel asserts a
general arbitral principle to the effect that quite apart from specific
collective agreement provisions, undue delay invalidates discipline
Employer counsel submits that while there was some delay it was not
undue nor unreasonable in all of the circumstances It is argued that the
grievor was not prejudiced because she could not have reasonably been led
to believe that the employer had condoned or forgiven her conduct or had
decided not to further pursue the allegations Reliance was placed on Re
Dannenberg, 414/89 (Dissanayake)
In Re Dannenberg, supra the Board was referred to what is considered
to be the leading case on the subject, Re Borough of North fork, supra and
the union made a similar argument in circumstances where there was a delay
7
of over 5 months between the alleged misconduct and the imposition of
discipline At pp 5-6 the Board stated
The Union contends that a delay of over 5 months
between the incident and the imposition of the
discipline is unreasonable Counsel cited a
statement in Palmer, Collective Agreement Arbitration
in Canada, Buterworths, p 284, that" an employee
can consider that no discipline can Be imposed against
him for any act if the employer fails to act in a
timely way" and also relied on Re Corporation of the
Borough of North York, (1979) 20 LAC (2d) 289
(Schiff); and Re Municipality of Metropolitan Toronto,
(1981) 29 LAC (2d) 169 (Samuels) Counsel argues
that given the delay, the grievor was entitled to
reasonably conclude that he will not be disciplined,
and urged the Board to bar the imposition of any
discipline
We have reviewed the cases relied on by the
Union The rationale in those cases is that where, by
unreasonably delaying discipline, the employer leads
an employee to reasonably believe that his conduct had
been forgiven or condoned, the Employer may be barred
from imposing any penalty Thus in Re Borough of
North York Jsupra) at p 290, the arbitrator states
"But delay beyond that, justifying the employee's
conclusion that his conduct is condoned, bars levy of
any penalty" In applying the statement in Palmer to
the facts before him, the arbitrator in Re
Municipality of Metropolitan Toronto (supra) at p 172
stated" I think that Palmer is referring to the
obvious point that the Employer must not lead an
employee to believe his performance is satisfactory
and then, long after an incident, inform the employee
that he had committed some wrongful act and impose
discipline for it "
The Board reiterates that the arbitral principle established in the
case law is based not upon the delay per se, but the potential impact of
the delay on the grievor, who may be led to believe reasonably because of
the inaction that the employer was no longer pursuing the allegations
Union counsel pointed to Re Borough or North York supra, (delays of 7 weeks
and 8 months), Re Brunswick Bottling Ltd Supra, (delay of 22 weeks) and
Re Miracle Food Mart, supra (delay of 8-9 months) where arbitrators had
----
8
barred the imposition of discipline He points out that the delay here of
11 months was longer than the delay in any of those cases and should not
be allowed to stand
As the Board held in Re Dannenberg, what vitiates or bars discipline
is not the delay itself but the unfairness and inequity that may result
from delay In certain circumstances a short period of delay may result
in such unfairness and inequity - i e reasonably leading the grievor to
believe that his or her conduct will not result in discipline - while that
may not be so under other circumstances
In the present case, while on the calendar there was a "delay" of 11
months from the time the allegations first came to the employer's attention
to the date of imposition of discipline, some of this delay was beyond the
employer's control The evidence is that a strike of the OPS employees
intervened between February 26 and March 31, 1996 Also the disciplinary
meeting was postponed from August 14th to September 26, 1996 because the
grievor was out of the country While on October 27, 1995 the employer was
informed of the allegations verbally, the employer was reluctant to proceed
on the basis of such verbal information and wanted to obtain a copy of the
written complaint itself Internal Affair's held out some hopes that it
may be provided when they agreed to consider the employer's request When
this was not forthcoming, the employer made a formal Freedom of Information
request Even that step did not elicit the copy of the complaint desired
by the employer It was at this point that the employer decided to launch
an investigation with the information at its disposal
9
While in hindsight, the Board tends to agree with the union that the
employer could have proceeded with xhe information verbally communicated
to it on October 27, 1995, the Board must be careful not to encourage the
employer to act hastily As a general rule, employers must be encouraged
to proceed with caution before making allegations and subjecting employees
to investigations The mere launching of an investigation can be a source
of stress on the subject employee and may have a negative impact on the
workplace as a whole The union points out that the employer has failed
to explain the delay from the date of receipt of the Police report in
December 1995 to the appointment of the investigator on February 13, 1996
Despite the strike which occurred between February 26 and March 31, 1996
the union submits that the grievor could have been interviewed earlier than
April 26, 1996 The union points out that no explanation has been offered
as to why the investigation report was not ready to act upon until August
6, 1996
The Board agrees that the employer should have acted with more
dispatch Despite the non-cooperation by Internal Affairs, the intervening
OPSEU strike and the grievor's trip to Italy, the matter could have been
concluded at an earlier date However, that is not the issue here It is
not a question of evaluating the employer's efficiency in conducting an
investigation In Re Dannenberg supra, the Board clearly found that there
was inappropriate delay However, the Board declined to invalidate the
discipline At pp 7-8, it stated
The delay in question was inappropriate There
is no doubt about that and to the Employer's credit,
that was admitted The fact that Ms Scrivano had
other investigations to conduct is not a valid excuse
Yet the fact remains that in all of the circumstances,
despite the delay, the grievor could not reasonably
have concluded that his conduct had been forgiven or
-
10
condoned Counsel for the Union drew our attention to
a number of provisions in the collective agreement
which anticipate the prompt resolution of complaints
and differences under the agreement and the timeliness
provisions negotiated by the parties to ensure that
result However those provisions all deal with the
grievance procedure after a complaint or difference
has arisen, namely, where an employee or the Union
believes that the employer has violated the collective
agreement Then the collective agreement provides for
mandatory time-limits for the processing of the
grievance The Board's function is to technically
apply the time limits The parties have not
negotiated any time-limits, mandatory or otherwise,
for the imposition of discipline Therefore it is not
a matter that can be decided in a technical way On
the other hand, it is a matter of fairness and equity
What arbitrators have held in effect is that once an
employee is reasonably led to believe that his conduct
has been forgiven and condoned it is not fair or
equitable to later discipline him for the same
conduct As already noted, that has not occurred
here Accordingly, the Union's first argument fails
(Emphasis added)
The test to be applied, in the Board's view, is whether in the
particular circumstances the grievor was reasonably led to conclude that
her conduct had been forgiven or condonned or that the employer had somehow
dropped the matter That is what would make it unfair and inequitable for
the employee to later find that he or she was subject to discipline
In the case at hand, the Board concludes that the grievor could not
have reasonably been led to believe that no discipline would be
forthcoming On November 20, 1995 she was made aware that the employer was
pursuing information from Internal Affairs and that it may result in an
internal Ministry investigation into her conduct On February 13, 1996,
she was informed of the appointment of an investigator On April 26, 1996
the investigator interviewed her and she knew that his findings would be
forthcoming While it took longer than one may expect for the findings to
11
be disclosed, nothing happened in the intervening period to suggest that
the investigation had been discontinued
The Board agrees with the union that because the employer had stated
that an investigation may result, that did not entitle the employer to
"take forever" to commence and conclude an investigation Extreme delay
and inaction by itself may lead an employee to reasonably conclude that the
possibility of an investigation no longer existed However, the
intervening periods in the present case, seen in context, do not give rise
to such circumstances
It is significant to note that the grievor did not testify that she
had believed at any point that the employer was no longer pursuing the
issue When it was suggested to the grievor under cross-examination that
she was aware throughout that the investigation was on-going, her response
was "I don't know how they conduct investigations So I can't answer"
When it was suggested that since she knew that the investigation would
result in a report, she knew that the investigation was on-going until such
time the report was issued, the grievor's reply was "I was not questioned
after April and so I didn't know if it was ongoing"
The union laid heavy emphasis on two issues First, it was pointed
out that the investigating report made reference to an "admission"
allegedly made by the grievor to Mr Lesperance that she had in fact
requested the Police Officer to access information through the CPIC system
The employer conceded at the hearing that this alleged admission was never
raised at the investigation interview or the disciplinary meeting Until
two weeks prior to the hearing, the union and the grievor were unaware that
12
the employer had relied on an alleged admission by the grievor It lS
therefore argued that in the circwnstances it was unfair to expect the
grievor to testify from recall as to the exact conversation being alleged
to have occurred many months earlier It is submitted that the grievor
would have been better able to respond to the alleged "admission" had this
matter come to a hearing earlier
Secondly, the union claims that the Police Report which the employer
received in December 1995 had not been disclosed to the union to date The
employer's evidence was that the only copy it received was no longer
available to it Employer counsel stated that even she had been denied
access to it and she has served a summons on the Internal Affairs to
produce a copy at the Grievance Settlement Board hearing into the merits
of this grievance
Suffice it to observe that the "prejudice", if any, resulting from
the foregoing circumstances, are not matters pertinent to the issue here,
as to whether the discipline itself is to be invalidated Both are
instances of alleged deficiencies in disclosure The union may seek
whatever relief it deems appropriate with regard to any prejudice that may
have been caused due to non-disclosure and the Board will have to deal with
those However these are not matters relevant in relation to the
preliminary issue of whether the discipline should be invalidated due to
delay in its imposition
For all of the foregoing reasons, the union's preliminary motion is
denied The merits of this grievance shall be scheduled before the Board
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at the request of either party I am not seized of jurisdiction for that
purpose
Dated this 9th Day of April, 1997 at Hamilton Ontario
c~~-d~"
Nimal Dissanayake
Vice Chairperson