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HomeMy WebLinkAbout1997-2033.MASSA99_06_01 - ONTARIO EMPLOYES DE LA COURONNE CROWN EMPLOYEES DE L'ONTARIO 1111 GRIEVANCE COMMISSION DE SETTLEMENT REGLEMENT BOARD DES GRIEFS 180 DUNDAS STREET WEST SUITE 800, TORONTO ON M5G 1Z8 TELEPHONE/TELEPHONE (416) 326-1388 180, RUE DUNDAS OUEST BUREAU 800, TORONTO (ON) M5G 1Z8 FACS/MILE/TELEcOPIE (416) 326-1396 GSB # 2033/97 0384/98 0385/98 OLB # 002198, 235/97 413197 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEV ANCE SETTLEMENT BOARD BETWEEN Ontano LIquor Boards Employees Umon (Joseph Massa) Union - and - The erown m RIght of Ontano (LIqUor eontrol Board of Ontano) Employer BEFORE RandI Harnrner Abramsky V Ice-ehmr FOR THE Larry Stemberg UNION eounsel, KoskIe Minsky BarrIsters & SoiIcltors FOR THE MIchael G Sherrard EMPLOYER Counsel, Ogllvy Renault Barnsters & SoiIcltors HEARING May 12 1999 m Toronto INTERIM AWARD At the close of the Employer s case, the Umon moved for a non-sUIt m relatIOn to one of the gnevances before thIS Board, the three-day suspenSIOn Issued to the gnevor Joseph Massa, on July 14, 1997 The basIs of the Umon s motIon IS that the Employer vIOlated ArtIcle 26 3 of the partIes collectIve agreement and, as a result, the dIsclplme Imposed IS VOId ab milia ArtIcle 26.3 states as follows An employee who IS reqUIred to attend a meetmg for the purpose of dIscussmg a matter WhICh may result m dIscIplmary actIOn bemg taken agamst the employee shall be made aware of the purpose of the meetmg and hIs/her nght to Ulllon representatIOn m advance of the meetmg. The employee shall be entItled to have a Uillon representatIve at such meetmg provIded that thIS does not result m undue delav Facts On June 4 1997 the gnevor was Issued a "NotIce of Intended DIscIplme", commonly referred to as a "NOID" m relatIOn to an alleged forklIft mCldent on June 3 1997 ThIS was handed to Mr Massa WIthout a Ulllon steward present smce he dId not want to be represented by one of the local stewards and the OLBEU Zone RepresentatIve was away The NOID outlmed the alleged mCIdent and then stated, m part, that "[w]Ithm three (3) days from receIpt of thIS letter vou are requested to provIde me WIth a wntten explanatIOn of your actIOns and your dIsregard for establIshed safety procedures" On June 6 1997 Mr Massa submItted a wntten reply to the allegatIOns contamed m the June 4 1997 NOID 2 Thereafter Human Resources Manager Pat HoulIhan advIsed BIll McDowell, Manager of the DIstnbutIOn eentre m London, that the gnevor was entItled to Union representatIOn when he was Issued the NOID and that the first NOID should be wIthdrawn and then reIssued when the Zone RepresentatIve returned or sent by maIl. ThIS was done on June 12, 1997 by letter VIa regIstered mall The June 12 1997 letter whIch was sent by Mr McDowell states, m pertment part, as follows WIth respect to the "NotIce of Intended DIscIplme dated and Issued to you June 04, 1997 Please be advIsed that as no OLBEU Zone RepresentatIve was aVallable on thIS date, the InitIal notIce IS hereby deemed null and VOId. Attached you WIll find your wntten response to the notIce, dated June 06 1997, accompanIed by a reVIsed "NotIce ofIntended DIsclplme", dated June 12, 1997 forwarded to you VIA REGISTERED MAIL The reVIsed NOID dated June 12, 1997, IS IdentIcal to the June 4 1997 NOID Mr McDowell testIfied that he receIved another copy of Mr Massa's first response dated June 6 1997 m response to the second NOID It was also Mr Houlihan s recollectIOn that Mr Massa resubmItted hIS first response to the reVIsed NOID At thIS pomt m the hearmg, that eVIdence stands unrefuted and must be accepted as true for the purposes of thIS motIOn. On July 14 1997 the gnevor was Issued a three-day suspensIOn by Mr McDowell m relatIOn to the alleged mCIdent on June 3, 1997 That letter starts off as follows Further to the NotIce of Intended DIscIplme Issued to you June 4, 1997 regardmg your operatIOn of a fork 11ft truck on the afternoon of June 3 1997 3 Weare m receIpt of the requested mformatIOn and have carefully consIdered the explanatIOn you have provIded m your letter dated June 6 1997 It then reVIews the pomts raIsed by the gnevor m hIS June 6, 1997 response, determmes that he faIled to provIde any reasonable explanatIOn for hIS actIOns and determmed that dIsclplme was warranted. Dunng the heanng, Mr McDowell was not questIOned eIther m exammatIOn-m- chIef or m cross-exammatIOn about the dates set forth m the July 14 1997 letter of dIscIplme The Issue was canvassed WIth Mr HoulIhan, but hIs role was that of adVIsor He dId not author the July 14, 1997 letter Imposmg dIscIplme Arguments of the Parties The Umon submIts that the July 14 1997 letter of dIscIplme on ItS face IS defectIve by reason of Its reference to the ongmal June 4, 1997 NOID The Employer, m the Umon's VIew, Improperly relIed on the first NOID WhICh was Issued m vIOlatIOn of ArtIcle 26 3 of the collectIve agreement As a result, It submIts that the dIscIplme IS VOId ab initIO In support of ItS contentIOn, the Umon CItes to two GSB cases OLBEU (LeHay) and LCBO (1995), GSB No 809/94 (Gorsky) and OLBEU (Franssen) and LCBO (1997) GSB No 1636/96 (Mikus) In LeHay, the Umon raIsed a prelImmary ObjectIOn to the hearmg proceedmg on the baSIS that the dIscharge of the gnevor was VOId ab initio because the Employer faIled to comply WIth ArtIcle 26 3 In that case the gnevor was 4 handed a NOID at a meetmg, wIth no advance nollce of the subject matter of the meetmg nor of hIS nght to umon representatIOn. The NOID stated that the gnevor was observed usmg Improper cashIenng procedures on May 4 1994 and asked for a wntten statement explammg the mCIdent withm three days At the meetmg, however the manager questIOned the gnevor regardmg what occurred on May 4 In the board s VIew thIS was a meetmg, at least m part, to dISCUSS a matter which may result m dlscIplmary actIOn bemg taken" agamst the gnevor withm the meanmg of ArtIcle 26 3 Accordmgly, the gnevor had a nght to be made "aware of the purpose of the meetmg and his/her nght to Umon representatIOn m advance of the meetmg." Smce that dId not occur the dIsciplme was vOId ab initio The Board deCided that ArtIcle 26 3 created a substantIve nght for the protectIOn of employees whIch must be complIed wIth or the disciplme Imposed is VOId ab initio In Franssen, the gnevor was Issued thIrteen NOIDS m all whIch led to hIS termmatIOn of employment. SIX were delIvered to hIm by his manager wIthout dIscussIOn although the gnevor read them m the manager S presence and commented that they were "untrue and "made no sense" Two were sent by pnonty post, and five more were hand-delIvered to the gnevor without any discussIOn at all. The Umon, as a prelImmary matter, asserted that the handmg of the NOIDs to the gnevor constItuted a "meetmg for the purpose of dIscussmg a matter which may result m disclplmary actIOn bemg taken" under ArtIcle 26 3 and, smce the gnevor was not told of the purpose of the meetmg nor advised of hIS nght to umon representatIOn, were vOId ab initio The Board agreed, statmg at p 8 that when the manager "elected to present the NOIDs personally to 5 the gnevor he InItlated a meetIng to dISCUSS matters that .mlght lead to dISCIplIne " and "put the gnevor In the vulnerable posItIOn of possibly makmg statements agaInst Interest wIthout the adVIce and assIstance of a Umon representatIve AccordIngly the NarDs, wIth the exceptIOn of the two whIch were sent by pnonty post, were VOId ab initio There was no VIOlatIOn In regard to the NOIDs sent by maIl because "the nghts under artIcle 26 3 anse only If an employee IS reqmred to attend a meetIng to dISCUSS a matter that mIght lead to dlsclplme" and "[t]he NOrDs that were sent by mall to the gnevor do not fall Into that category "(DeclsIOn at p 10) In the mstant case, the Umon submIts that the June 4, 1997 NOID WhICh was handed to the gnevor WIthout Umon representatIOn In VIOlatIOn of ArtIcle 263 was VOId and the dISCIplIne of July 14, 1997, WhICh relIed on that NOrD IS VOId ab initio The case law It submIts, makes thIS clear and must be followed. Accordmgly, It contends that ItS motIOn for non-smt regardIng the three-day suspenSIOn must be granted. The Employer asserts that the onus IS on the Umon to establIsh a VIOlatIOn of ArtIcle 26 3 wluch It has faIled to do It submIts that the Umon's pOSItIOn Ignores the fact that the Employer, based on the GSB cases, Itself VOIded the June 4, 1997 NOrD and returned Mr Massa's June 6, 1997 reply It then properly re-Issued It, by pnonty post, on June 12, 1997 and Mr Massa re-submltted the same June 6 1997 reply In the Employer s VIew there was no VIOlatIon of ArtIcle 26.3 and the mIstaken reference to the June 4 1997 NOID cannot create one To so rule, In ItS VIew, would be absurd. The Employer submIts that gIVen the Employer s relIance on the resubmItted June 6 reply 6 from Mr Massa, It IS only logIcal that the reference to the June 4th NOID, rather than the re-Issued one was a mIstake arId notes that Mr McDowell was not questIOned about thIS by counsel for the Umon. In support of ItS contentIOn, the Employer relIes on LeHav m whIch the Board opmed at p 56 that there mIght be "a certam futIlIty to thIS exerCIse m that the Gnevor may agam be dIscharged by the Employer thIS tIme followmg the reqUIrements of the collectIve agreement. " In the Employer's VIew that IS exactly what It dId here - wIthdraw the Improper NOID and re-Issue It properly followmg the reqUIrements of the collectIve agreement. In ItS submISSIOn, the mIstaken reference to the first NOID m the July 14 1997 letter of dlsclplme IS not suffiCIent to vOId the dIscIplme Imposed. The Employer also CItes to Re Ottawa Board of EducatIOn and Ottawa Board of Education Employees' Unzon (1988), 2 L.A.C (4th) 26 (Bendel) and Re VS Services Ltd. Vending Services and Teamsters Union, Local 647 (1990) 17 L.A.C (4th) 239 (Brandt) In reply the Umon submIts that the Issue here IS not whether Mr Massa could be dlsclplmed agam, but whether the collectIve agreement was vIOlated by the Employer when It dIscIplmed the gnevor based on a NOID whIch was Issued to hIm WIthout umon representatIOn. It asserts that the July 14 1997 letter of dIscIplme IS clear on ItS face that dIscIplme was based on the defectIve NOID arId there IS no eVIdence that a "mIstake" about the date was made It IS Just as logIcal, m the Umon s VIew, that Mr McDowell Improperly relIed on the defectIve NOID It submIts that It had no oblIgatIOn to questIOn 7 Mr McDowell about the dates on the July 14 letter and could properly take the document at face value DECISION The Uillon S motIOn for non-smt depends on whether or not there was a VIOlatIOn of ArtIcle 26 3 If so the dIsCIplme IS VOId ab initio Le Hay supra The onus IS on the Uillon and based on the eVIdence presented I cannot conclude that there was a VIOlatIOn of ArtIcle 263m thIS case ArtIcle 26 3 grants "a substantIve nght to an emplovee to have the assIstance of a Uillon representatIve whenever he/she IS reqmred to attend a meetmg wIth the employer to dISCUSS any matter that mIght lead to dIscIplme" Franssen, supra at p 7 The purpose of thIS provIsIOn IS to protect the employee from the nsk of makmg mcnmmatmg statements LeHay supra at p 50, cItmg The Steel Company of Canada (Raynor) at pp 7-8 umeported declSlon dated August 29 1990 It protects agamst placmg an employee m "a vulnerable posItIOn of possIbly makmg statements agamst mterest wIthout the advIce and assIstance of a Uillon representatIve" Franssen, supra at pp 8-9 ThIS nght to umon representatIOn, however only attaches when there IS a meetmg held to dISCUSS a matter that may lead to dIscIplme There IS no reqmrement that a meetmg be held and a NOID may be sent to an employee by mall, wIthout vIOlatmg ArtIcle 26 3 Franssen, supra at p 10 8 In thIS case, the ongmal June 4 1997 NOID was handed to the gnevor wIthout umon representatIOn. It IS umefuted that he chose not to have the local stewards represent hIm and the OLBEU Zone RepresentatIve was away Mr Massa then rephed m wntmg to the June 4th NOID Thereafter on June 12, 1997 m hght of the GSB cases cIted above, the Employer rescmded the June 4, 1997 NOID declanng It "null and vOId and Issued a revIsed NOID whIch was IdentIcal to the first one, Via regIstered mall WhIle It IS dicta the LeHay decIsIOn appears to authonze thIS course of actIOn and, m fact, the Umon dId not assert that the Employer could not do so Counsel for the Umon onlv stated that there IS a dIVIsIOn m the case law about the nght of an employer to correct Its actIOns m thIS manner Instead, the UnIon s concern focused solelv on the July 14 1997 letter of dIscIplme whIch referred to the first defectIve NOID The fact IS, however that wIth the wIthdrawal of the first NOrD Mr Massa was not placed m a "vulnerable posItIOn of pOSSIbly makmg statements agamst mterest wIthout the advIce and assIstance of a umon representatIve" Franssen, supra at p 8 There was no "meetmg" under ArtIcle 263 because the revIsed NOID was sent by regIstered mall. Assummg, per LeHay, that the Employer could correct Its ImtIal error as It dId, there was no substantIve vIOlatIOn of Mr Massa s nghts to umon representatIOn. All that IS left IS the fact that the July 14, 1997 letter of dIscIplme refers to the first, defectIve NOrD and the record IS SImply unclear whether that was the result of an error m the date by Mr McDowell or Improper relIance on the June 4 1997 NOrD Although as counsel for the UnIon qmte properly asserts, the UnIon may rely on the letter 9 of dIscIplme as wntten and dId not have to questIOn Mr McDowell about It, that leaves the eVIdence regardmg the CIrcumstances surroundmg the July 14 1997 letter unclear On Its face, the letter refers to the June 4 1997 NOID and the June 6 1997 reply from Mr Massa. But that letter does not stand alone There IS both documentary and testImonIal eVIdence that the first NorD was rescmded and a new one Issued and that Mr Massa resubmItted hIS ongmal reply m response to the second NOID That eVIdence truly raIses a questIOn about the letter of dIscIplme's reference to the ongmal NOrD Normally, comphance WIth ArtIcle 26.3 IS ralsed as a prehmmary Issue rndeed, m LeHav supra at p 58, the board stated that "It would be expected that the Issue relatmg to the Employer s fallure to comply WIth the proVISIOns of art. 26 3 would, at some pomt m the [gnevance] procedure, have been ralsed by the UnIon." There IS no eVIdence that occurred here Nor was It ralsed as a prehmmary Issue, nor mentIOned m the opemng statements, nor was the one WItness who could have explamed It questIOned about It. The effect of thIS IS to leave the record deCIdedly unclear about the July 14 1997 letter It IS Just as plaUSIble that Mr McDowell made a mIstake about the date as It IS that he truly rehed on the defectIve NOID In a motIon for non-smt, the eVIdence IS to be conSIdered m the hght most favourable to the party opposmg the motIon - WItnesses are to be assumed credIble and all reasonable favorable mferences are to be drawn. As a result, r cannot conclude that the Employer m fact, Improperly based ItS deCISIOn to dIscIplme the gnevor on the June 4 1997 NOID mstead of the reVIsed one 10 Accordmglv the UnIon has not sustamed Its onus and the mutIOn for a non-suIt IS demed. Issued thIS 1 st day of June 1999 m Toronto MUL f-f ~f?{"17 ~~ -/ .. / Rand\ Hammer Abramsky, Y lCB3.1f 11