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Home My WebLink About1998-0157.Holmes.00-02-11 Decision o NTARW EMPU) YES DE LA COURONNE CROW"! EMPLOYEES DE L 'ONTARW . . GRIEVANCE COMMISSION DE SETTLEMENT REGLEMENT BOARD DES GRIEFS 180 DUNDAS STREET WEST SUITE 600 TORONTO ON M5G 128 TELEPHONE/TELEPHONE, (416) 326-1388 180 RUE DUNDAS OUEST BUREAU 600 TORONTO (ON) M5G 128 FACSIMILE/TELECOPIE. (416) 326-1396 GSB # 0157/98 OPSEU # 98A354 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN Ontano Pubhc ServIce Employees Umon (Holmes) Grievor - and - The Crown III RIght of Ontano (Mirusm of the SohcItor General and CorrectIOnal ServIces) Employer BEFORE Maureen K. Saltman Vice ChaIr FOR THE Nelson J Roland GRIEVOR Bamster & SOhCItor FOR THE Chnstopher Jodhan EMPLOYER Counsel, Legal ServIces Branch Management Board SecretarIat HEARING October 20 1999 INTERIM AWARD The Gnevor In thIS case, Dene Holmes. who was employed as a CorrecTIonal Officer at the Sudbury Jml, was discharged on February 11 1998 for alleged mIsconduct InvolVIng a female Inmate. At thIS Juncture, the Employer seeks to Introduce eVIdence of alleged mIsconduct whIch post-dates the dIscharge, eIther as an Independent ground for dIscharge or as a factor to be taken Into account In the exerCIse of the Board's remedial authonty More partIcularly the Employer seeks to Introduce eVIdence to estabhsh that the Gnevor consorted With a known prostItute who was an eX-Inmate of the Sudbury Jail (although It was common ground that the Gnevor dId not know that the woman had been an Inmate of the Sudbury Jml); and that the Gnevor Impersonated a CorrecTIonal Officer The nature of the eVIdence the Employer seeks to tender IS that on February 10 1999 In the course of a pohce surveIllance, the woman In queSTIon was observed gettIng out of the Gnevor's truck. The Gnevor was stopped by the polIce and asked for IdentIficaTIon, In response to whIch, he produced a dnver's hcense, ownershIp and Insurance As the Gnevor was looking for ills IdenTIficaTIon, the pohce constable nOTIced a badge When queSTIoned as to the badge, the Gnevor "adVIsed he was a Jml guard" The Umon obJects to the IntrodUCTIon of such eVIdence on the grounds, among other matters, that (1) the conduct complaIned of does not conSTItute a cnmInal, or even a discIplmable 2 offence; and (2) the Employer has no legiTImate Interest In the conduct complaIned of, as (1) there IS no connectIon to the Employer's bUSIness and (iI) the conduct IS unrelated to the ongInal grounds for discharge. In any event, the Umon submItted that the preJudiCIal effect of thIS eVIdence far outweIghs ItS probatIve value Although, as a general rule, In arbItraTIOn proceedings, an employer will be held faIrly stnctly to the grounds advanced at the TIme of discharge, are excepTIons, Including grounds whIch occurred pnor to dIscharge but willch were not known, and could not have been known, at the TIme of dIscharge see Re Umted Steelworkers of Amenca and AerocIde DIspensers Ltd. (1965), 15 LAC 416 (Laskm) In thIS case, however the addItlOnal grounds were alleged to have occurred subsequent to dIscharge. Although the Employer submItted cases In willch post-dIscharge mIsconduct was rehed upon as an Independent ground for dIscharge as (1) the mIsconduct was, of course, unknown to employer at the TIme of discharge; (2) the new ground was not "wholly disconnected" from the ongInal grounds for discharge; and (3) the umon and the gnevor were afforded a full opportumty at the heanng to address the new ground (Re Canadian Alrhnes Int'l Ltd. and C.AL.P.A (1988), 35 L.A.C (3d) 66 (Munroe); Re McRae Waste Management Ltd. and I. U. 0 E., Loc. 115 (Galloway) (1998), 73 L.AC (4th)174 (McEwen), In whIch the conduct In quesTIon was also conSIdered In the exerCIse of the ArbItrator's remedial authonty), these are cases willch Involved matters gOIng to the heart of the employment relaTIonsillp, namely partICIpaTIOn In a illegal work stoppage, In McRae Waste Management, and the mabihty of an aIrhne pilot to functIon effectIvely due to stress (a matter It should be noted, whIch arose from psycillatnc eVIdence called by the umon to excuse the ongInal grounds for discharge), In Canadian Alrlmes. Similarly m Re Uncle Ben's Tartan Brewenes (B.C.) Ltd. and Umted 3 Brewery Workers, Local 359 (1975),8 L.AC (2d) 109 (MacIntyre), the mstigation of an illegal strike by an employee subsequent to ills dIscharge, but pnor to the fihng of a gnevance, was relIed upon as an Independent ground for discharge In Re Ethyl Canada Inc. and ChemIcal Workers Umon, Local 300 (1984), 13 L.AC (3d) 325 (WellIng), however even where the post-dIscharge conduct Involved vlOlence on the pIcket lIne, the ArbItrator refused to conSIder thIS conduct as an Independent ground for discharge, although It was taken Into account In the exerCIse of ills remedIal discretion. Finally m OPSEU (PaulleylBechard) and The Crown In RIght ofOntano (MOT), GSB 1171/1172, a subsequent apphcatlOn for employment In the OntarIo Pubhc ServIce by one of the gnevors, whIch mIsrepresented the reason for termInation from her preVIOUS employment (willch was the subJect-matter of the gnevance before the Board), was taken Into account, In the exerCIse of the Board's remedial authonty on the grounds that such apphcatlOn undermIned the trust relationsillp essentIal for reInstatement to the gnevor's former pOSItion. In all of these cases, however whether the post-dIscharge conduct was taken Into account as an Independent ground for discharge or In the exerCIse of the ArbItrator's remedIal authonty there was, It seems, a clear connection to the employment relationshIp Three of the cases (McRae Waste Management, Ethyl Canada and Uncle Ben's) dealt With partICIpation (and even Instigation) of an illegal strike, the other two (Canadian Alrhnes and PaulleylBechard), With conduct whIch compromIsed the employees' abihty to carry out theIr Job functions. In addition, In at least one of the cases (Uncle Ben's), the post-dIscharge conduct arose In close proXimIty to the dIscharge and pnor to the fihng of the gnevance and, In another (Canadian Alrhnes), the post-discharge conduct, whIch came up at the arbItratlOn heanng, reflected on the gnevor's state of mInd at the time of discharge 4 In contrast, In the case at hand, the post-discharge conduct on wruch the Employer seeks to rely relates to an IncIdent, wruch took place a full year after the date of dIscharge and would appear unrelated to the ongInal grounds for dIscharge and to Employer's legiTImate Interests. Although the Employer mamtaIned that contact With a prosTItute was In COnflIct With the Gnevor's employment obhgaTIons and that the exchange With the pohce officer In wruch the Gnevor responded to quesTIons, rather than proffered rus badge as a form of IdenTIficaTIon, was tantamount to ImperSOnaTIng a CorrectIonal Officer In our VIew the facts, even If proven, fall short of supportIng these concluslOns. In the CIrcumstances, therefore, the Board finds that the post-dIscharge conduct In quesTIon IS SImply too remote to be conSIdered In these proceedIngs. Moreover conSIderaTIon of these grounds at thIs Juncture would deny the partIes an opportumty to deal WIth the matter In the more refleCTIve atmosphere of the gnevance procedure In the result, the Board declInes to conSIder the post-discharge conduct eIther as an additlOnal ground for discharge or In the exerCIse of ItS remedial authonty The Board will remam seIzed until thIs matter IS finally resolved. Dated at Toronto, thIS 11th day ofPebruary 2000 ~ Maureen K. Saltman, Vice-Chair 5