HomeMy WebLinkAbout1998-1568.Pedneault.00-08-08 Decision
ONTARIO EA1PLOYES DE L4 COURONNE
CROWN EA1PLOYEES DE L 'ONTARIO
GRIEVANCE COMMISSION DE
. . SETTLEMENT REGLEMENT
BOARD DES GRIEFS
180 DUNDAS STREET WEST SUITE 600 TORONTO ON M5G 128 TELEPHONElTELEPHONE, (416) 326-1388
180 RUE DUNDAS OUEST BUREAU 600 TORONTO (ON) M5G 128 FACSIMILElTELECOPIE. (416) 326-1396
GSB # 1568/98
OLBEU # OLB373/98
IN THE MATTER OF AN ARBITRATION
Under
THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT
Before
THE GRIEVANCE SETTLEMENT BOARD
BETWEEN
Ontano LIquor Boards Emplovees Umon
(Pedneault)
Gnevor
- and -
The Crown m RIght of Ontano
(LIquor Control Board of Ontano)
Employer
BEFORE FehcIt, Bnggs Vice Chair
FOR THE Craig Flood
GRIEVOR Counsel, KoskIe & Minsk,
Barnsters & SohcItors
FOR THE Alhson Renton
EMPLOYER Counsel, Legal ServIces Branch
LIquor Control Board of Ontano
HEARING September 1 1999 Januan 19 20 25 26
Februan 2, Ma, 30 31 June 1 6 7 and 26 2000
1
Grant Pedneault worked In a vanety of classIficatIOns for the Employer SInce 1974 before
he was dIscharged from hIS posItIOn as Store Manager of the Fort Frances store On
November 17 1998 he receIved a letter from Wayne LIddle, DIstnct Manager that
provIded, In consIderable detaIl the Employer's posItIOn. In total, It stated
ThIS letter IS addressed In response to the two NotIces Of Intended DIscIplIne
(NOID's) dated November 2, 1998 for whIch you were relIeved of duty wIth pay
pendIng an InVestIgatIOn. The Issue In questIOn related to adherence to and
ensunng adherence to the LCBO's polIcy "Payment ProcessIng - TENDER THE
SALE - US Funds" {IM-304-02}
As recently as August 21 1998 the US cash handlIng procedures were revIewed
wIth you and you were provIded wntten confirmatIOn of my dIrectIves You were
to ensure complIance by all staff members of Store #69 Fort Frances, InclUSIVe of
yourself
On October 23 1998 a CSR under your charge faIled to process US funds as per
procedure More speCIfically whIle he was on cash the mormng of October 23
1998 a customer tendered $2000 US for the purchase of a 750ml of Jim Beam
bourbon (CSPC 21378) valued at $2095 Instead of entenng the cash tendered at
$20 00 US as would be proper procedure, he manually entered $29 60 Cdn and
provIded the customer wIth $8 65 In change (CanadIan currency) ThIS employee
was asked to provIde a wntten explanatIOn of hIS actIOns
Pnor to reCeIVIng hIS wntten explanatIOn, a meetIng was scheduled for October
27 1998 In Fort Frances, the obJectIve of whIch was to meet wIth thIS CSR and
wIth other permanent staff members of Store #69 to collect InfOrmatIOn
pertaInIng to thIS IncIdent.
At the tIme of the October 23 1998 IncIdent, allegatIOns of wrongdoIng only
concerned the aforementIOned CSR. Much to the LCBO's great surpnse and
dISappOIntment, all the concerned staff members admItted to long-term vIOlatIOn
of thIS Employer's polIcy on the proper handlIng of US funds
Of grave concern was that CSR (alleged to have commItted the vIOlatIOn of
procedure) IndIcated that YOU had Instructed hIm to collect $5 or $10 In US
currency before lunch for your use across the border You had admItted to thIS
occurrence In wntIng. He also IndIcated that, as per my dIrectIves of August 21
1998 you had revIewed hIS responsIbIlItIes re the proceSSIng of US currency and
that thIS procedure was to be adhered to from the pOInt of your dIscussIOn.
You also acknowledged thIS fact. DespIte thIS, on October 23 1998 you gave hIm
InstructIOn to vIOlate the proper handlIng of cash, you chose to favor your
personal gaIn, to vIOlate polIcy and a dIrect work order and to IncnmInate a co-
worker under your charge
In your wntten explanatIOn to the NOID whIch Issued to you regardIng the
IncIdent of October 23 1998 the only reason you could provIde for your
InstructIOn to the CSR to collect US funds whIch constItuted a vIOlatIOn of polIcy
and my recent dIrectIve, was that you had forgotten my dIrectIve In fact, you went
on to state that "I never ordered hIm to do It, but only asked hIm to " As the
2
Store Manager how you asked would have lIttle beanng - you are the supervIsor
and as such the employees must comply
In your wntten response to one of the NOID's, you have stated that you became
conversant of the proper handlIng of US funds and realIzed your wrong-doIngs as
of the last update to the AdmInIstratIOn Manual whIch was October 20 1997 The
polIcy whIch you receIved IS entItled, "IntroductIOn - United States Currency"
{AM-0801-08} One of the key reVISIOns was relatIve to the "PurchasIng of US
Currency" The polIcy reads, "Employees are not permItted to purchase US
currency from any store for personal use" Yet, despIte your acknowledgment of
becomIng aware of your oblIgatIOns and awareness of what you and your staff
were dOIng relatIve to handlIng of some of the US cash tendered by customers, In
lIeu of ensunng the abolIshment of the practIce, or seekIng adVIse from me on
how to handle the matter or even notIfYIng me of the problem so that I may have
dealt WIth the concern, you chose to contInue to condone, partIcIpate and
prolIferate the practIce In addItIOn, It has also been the dIscovery of the LCBO
that you provIded thIS "free exchange, no admInIstratIOn cost" of US funds to
some retIred employees of the LCBO
You also IndIcated that It was a common practIce In the stores In whIch you
preVIOusly worked. The LCBO's InVestIgatIOn findIng have revealed that your
alleged statement that thIS "common practIce" In the stores In whIch you worked
IS unfounded. However the last InCIdent known to have occurred was In Store
#230 KeewatIn, thIS InfractIOn was done by you for whIch your Store Manager
had you proVIde a wntten correctIOn to the LCBO's accountIng department. As far
as Store #376 Clearwater Bay you were the Summer Store Manager and
therefore, you were In charge
At a meetIng of November 12, 1998 (Umon RepresentatIOn proVIded) you
IndIcated that the collectIOn of US currency only Involved amounts In the order of
$5 US to $30 US and that thIS practIce was Infrequent. The LCBO's InVestIgatIOn
reveals otherwIse The amounts exceeded thIS range on more than one occaSIOn
and were more frequent. On June 12, 1998 for example, whIle workIng on cash,
you personally collected $100 US In addItIOn, the testImomes of the concerned
employees of Store #69 are that you frequently requested the US funds be
collected for your personal use when they were aSSIgned by you to work on cash.
Your statements are conflIctIng and as such the credIbIlIty of your testImony
comes Into questIOn.
Also of great concern IS the fact that you reported the InCIdent of October 23
1998 to be the one and only tIme that the collectIOn of US cash was requested
after my dIrectIves of August 21 1998 to follow LCBO polIcy and procedure The
LCBO has eVIdence to show that there were several other InfractIOns WIthIn thIS
penod.
SUMMATION
I have had the opportumty to reVIew the facts at my dIsposal I have also
consIdered your 24 years of servIce WIth the LCBO the last 4 years of whIch have
been In the capacIty of a Store Manager I have consIdered your attendance record,
whIch shows no eVIdence for concern and IS commendable Your performance
3
and behavIOr as an LCBO employee have also been consIdered. I cannot overlook
the fact that you have been charged and convIcted of dnvIng whIle under the
Influence and, as a result, your dnver's lIcense was suspended, the suspenSIOn was
extended for dnvIng whIle your lIcense was suspended, - thIS IS not eVIdence of a
socIally responsIble LCBO employee In addItIOn, I have consIdered your age
( 46years) the fact that you have no dependents and the re-employment
opportumtIes In Northwestern Ontano In whIch you have resIded.
When you accepted the posItIOn of Manager of Store #69 Fort Frances, as stated
In your promotIOn letter the LCBO asked that you take over all stock, cash and
assets of the store as of your promotIOn date As stated In the Store Secunty
Manual, "The protectIOn of LCBO funds IS one of the most Important
responsIbIlItIes of the Store Manager and staff' It goes on to read, "The Store
Manager has full responsIbIlIty and accountabIlIty for all cash handlIng and
bankIng .Note Personal Use of LCBO funds is a serious offense" {SSM-I03-
02, Secunty of Cash/MerchandIse, Cash} "The Importance of losses due to
customer theft and dIshonesty IS a matter of concern for every Store Manager The
most effectIve method for mImmIZIng losses due to staff dIshonesty IS to provIde
an atmosphere of clear standards, fairness, and consIstency" {SSM-OI03-01
Secunty of Cash/MerchandIse General} As an LCBO employee you have faIled
your responsIbIlItIes In thIS regard.
I have also taken Into account that although you profess to be remorseful, you
cannot be relIed upon to comply wIth expectatIOns despIte how clear dIrectIves
may be and, cannot be relIed upon to follow through wIth your commItment. In
fact, you have mIsled the LCBO In thIS regard. Your credIbIlIty has also come Into
senous questIOn.
The acts that you performed were wIllful and premedItated. You knoWIngly
vIOlated LBCO polIcIes and procedures and dIrectIves There has been a senous
breach of trust and there IS no eVIdence to support that you could be entrusted In
the future to fulfill your employment oblIgatIOns Consequently havIng senous
consIderatIOn to thIS matter your servIces wIll be termInated as of thIS date
{ emphasIs not mIne}
It was the Employer's posItIOn that the gnevor was dIscharged wIth Just cause In the
alternatIve, If the Board IS of the VIew that dIscharge was too exceSSIve a penalty In the
cIrcumstances, thIS Board should exerCIse ItS JunsdIctIOn to award compensatIOn to the
gnevor In lIeu of reInstatement to employment. In the further alternatIve, If reInstatement
IS awarded, the gnevor should not be awarded a return to hIS posItIOn of Store Manager
because there has been a Irrevocable sevenng of the employment relatIOnshIp
The Umon submItted In ItS opemng statement that the gnevor's dIscharge was vOId ab
initio because the Employer faIled to provIde Umon RepresentatIve at the meetIng that
4
took place on October 27 1998 However the Umon was content to have the eVIdence be
heard In total by the Board and have Its prelImInary obJectIOn regardIng vOId ab initio
heard In final argument. In the alternatIve, It was the Umon' s posItIOn that the gnevor was
dIscharged wIthout Just cause It was acknowledged that some dIscIplIne IS warranted for
the gnevor's breach of polIcy However dIscharge was an exceSSIve penalty
ArtIcle 26 3 of the collectIve agreement states
An employee who IS reqUIred to attend a meetIng for the purpose of dISCUSSIng a
matter whIch may result In dIscIplInary actIOn beIng taken agaInst the employee
shall be made aware of the purpose of the meetIng and hIs/her nght to Umon
RepresentatIOn In advance of the meetIng. The employee shall be entItled to have
a Umon representatIve at such meetIng provIded thIS does not result In undue
delay
The Ontano northwest regIOn IS the largest geographIcal area for a dIstnct manager of the
LCBO There are a number of small stores In relatIvely Isolated commumtIes It IS for thIS
reason that Mr LIddle, the DIstnct Manager does not get to VISIt each store as often as he
mIght lIke The maJonty of the stores In hIS area are CorD stores that have managers
who are members of the bargaInIng umt.
AccordIng to Mr LIddle, he had heard "rumours" that there was Improper handlIng of US
currency at the Fort Frances store He was very concerned about these rum ours and as a
result, dunng a regular VISIt In August of 1998 to the Fort Frances store, he raised the
Issue WIth the gnevor At the end of that day as he was leavIng he stopped to speak wIth
the gnevor who was at a cash regIster Mr LIddle spoke of the rum ours he heard and
IndIcated that, If true, the actIvIty was a vIOlatIOn of LCBO polIcy He Instructed Mr
Pedneault to dIrect hIS staff to cease any such practIce and make them aware that the
actIvIty was a vIOlatIOn of polIcy Further Mr LIddle told the gnevor that he was gOIng to
have Integnty shoppers In the area to ensure that hIS dIrectIOn was followed.
In 1989 the Employer Introduced the IMP ACT system for all cash transactIOns ThIS IS a
SOphIstIcated provIncIal system that provIdes trackIng of all transactIOns Amongst other
features, the system IS desIgned so that when US currency IS tendered by a customer the
5
customer servIce representatIve only has to enter the amount of US cash tendered and the
system automatIcally converts the US money Into the CanadIan eqUIvalent and provIdes
the necessary amount of CanadIan change The appropnate rate of exchange IS establIshed
In the Toronto office and applIes to every store across the proVInce
On October 23 1998 Mr Grant Pedneault and Mr Bruce Rawn were scheduled to work
In the Fort Frances store WhIle prepanng the store for opemng, the gnevor asked Mr
Rawn to obtaIn some US currency for hIm that mornIng If any was tendered as he was
gOIng across the border for lunch that day At approxImately 11 00 a.m an Integnty
shopper entered the store and tendered US cash for a purchase The Integnty shopper
observed that the polIcy was not followed. Mr Rawn dId not punch the "US" button
when he receIved the Amencan currency Instead, he calculated the appropnate CanadIan
eqUIvalent accordIng to the exchange rate and entered that amount as CanadIan currency
tendered. The Integnty shopper then asked to speak WIth the gnevor and was told that he
had gone to the bank to make the dally deposIt. The two qualIty assurance representatIves
then found the gnevor and asked hIm to return to the store as qUIckly as possIble because
of a currency polIcy breach.
On October 23 1998 Mr LIddle was attendIng meetIngs In Toronto when he receIved a
phone call from qualIty assurance InformIng hIm of a breach of currency polIcy by Bruce
Rawn In the Fort Frances store AccordIngly Mr LIddle telephoned the gnevor to find
out what had occurred earlIer In the day Mr LIddle told the gnevor that he was
responsible for ISSUIng a NotIce ofIntentIOn to DIscIplIne to Mr Rawn and suggested that
he call Ms CamIlle Clements-PItchkur the Human Resources Manager of the Northern
RegIOn, for aSSIstance In thIS regard. He was told to send Mr Rawn home Immediately
and he complIed WIth that InstructIOn and then found another employee to provIde
coverage
Mr Pedneault telephoned Ms Clements-PItchkur and told her of what had happened. She
then drafted a NOID for the gnevor to Issue She faxed the NOID to the gnevor and had a
further telephone dIscussIOn WIth hIm whereIn she told hIm that he could not, under any
6
cIrcumstances, hand delIver the NOID to Mr Rawn. She wanted the NOID to be
delIvered VIa couner but Mr Pedneault was fairly sure that It was too late In the day to
accommodate that request. He was correct and, as a result he maIled the NOID to Mr
Rawn.
The NOID sent by the gnevor to Mr Rawn stated
As of thIS date, you are relIeved of duty wIth pay as a result of faIlIng to accurately
process a cash transactIOn of Amencan currency More specIfically whIle you
were on cash the mormng of Fnday October 23 1998 a customer tendered $20 00
US for the purchase of a 750 ml of Jim Beam bourbon (CAPC21378) valued as
$20 95 Instead of entenng the cash tendered as $20 00 US as would be proper
procedure you manually entered $29 60 Cdn and provIded the customer wIth
$8 65 In a change (CanadIan currency)
ThIS IS not a dIscIplInary response but If the results of an InVestIgatIOn support
dIscIplInary actIOn, then you wIll be Informed of such actIOn.
WithIn three (3) calendar days from receIpt of thIS letter you are asked to submIt a
wntten statement, bv couner, to my attentIOn, Manager Store #69 Fort Frances,
explaInIng the matter mentIOned above
Should a meetIng be scheduled folloWIng the receIpt of your wntten statement,
you are entItled to Umon representatIOn, SInce dIscIplInary actIOn may result from
the meetIng.
If you choose not to respond as requested, management wIll act on currently
avaIlable InformatIOn.
A decIsIOn concermng thIS matter wIll be made known to you In due course
That NOID was Issued on October 23 1998 the same day as the IncIdent. There was a
dIstnct manager's meetIng scheduled to take place In Fort Frances the folloWIng Tuesday
Between the ISSUIng of the NOID and the manager's meetIng, the gnevor spoke to Mr
LIddle a couple of tImes about other matters Dunng the Intervemng tIme the gnevor
receIved a response from Mr Rawn that stated
ThIS letter IS In response to your letter of October 23 1998 I do agree wIth the
detaIls of that letter
On the mornIng mentIOned, after I arnved at work, I was asked by yourself to get
$5 or $10 US as you wanted to go to InternatIOnal Falls, MN wIth a fnend on
your lunch hour Later In the mornIng, a customer tendered a $20 00 U S bIll as
7
payment for a bottle ThInkIng thIS would be satIsfactory for your needs, I entered
the $20 00 US as $29 60 CanadIan.
I deeply regret my actIOns and apologIze for any Inconvemence caused to any and
all concerned.
At the conclusIOn of the manager's meetIng of Tuesday October 27 1998 at
approxImately 4 10 pm, accordIng to Mr LIddle, he met wIth the gnevor By all accounts,
at the begInmng of the meetIng the gnevor handed Mr LIddle Mr Rawn's response to the
NOm but Mr LIddle dId not read It. In fact, he dId not read the response untIl after the
conclusIOn of hIS meetIng wIth the gnevor
Both Mr LIddle and the gnevor agreed In theIr eVIdence that the gnevor began the
meetIng by saYIng that the matter was "all my fault" Mr LIddle took handwntten notes
of the meetIng that the gnevor testIfied were essentIally accurate Those notes said, In
full
WAYNE Asked Grant to Inform me as to what transpIred at Store #69 wIth
respect to the cashIenng procedure In questIOn.
GRANT It IS my fault I guess, I asked Bruce If he could get me $5 00 US
before I sent for lunch.
WAYNE Were you aware of thIS procedure gOIng on In the store?
GRANT ThIS has been gOIng on before I got here common practIce before I
became Manager
WAYNE Have you processed US funds In thIS fashIOn In other stores pnor
to Store #69 Fort Frances?
GRANT Yes we always dId It In the old Kenora store, KeewatIn and
Clearwater Bay where I was ActIng Manager Manager said It was okay Bruce
and Carl told me when I arnved that thIS has been gOIng on forever The Managers
pnor to me had done so also Before P 0 S you would gIve the customer the
correct exchange If you got say $300 00 dunng the day and If you wanted $2000
you Just bought It.
WAYNE DId you ever dunng these tImes thInk that you were vIOlatIng any
polIcy or procedure?
8
GRANT Not tIll last year when a change came I thInk to the AdmInIstratIOn
Manual Pnor to that tIme I dIdn't thInk that It was wrong.
WAYNE Have all your employees sIgned that they have read the
amendment?
GRANT I belIeve so
WAYNE Has anyone besIdes Carl and Bruce exchanged money thIS way?
GRANT Yes CIndy GosselIn - I don't know how much they would have
taken over a penod of tIme, but the practIce dIdn't change because I was there
WAYNE After my VISIt of August 21 1998 dId you reVIew the US exchange
cashIenng procedure wIth the staff In the form of a staff meetIng?
GRANT No I Just told them we weren't to contInue wIth thIS practIce
WhIch they agreed to and I don't thInk they dId untIl Fnday I don't know If they
read the report or not. I thInk so We would nng In CanadIan eqUIvalent customers
was gettIng (SIC) the nght exchange Then we would change wIth CanadIan money
when we found tIme
WAYNE How many tImes would you do thIS dunng a month?
GRANT Once or tWIce or maybe three tImes but no large sums Just $10 00
$2000 maybe $30 00 I had a feelIng It would qUIt sometIme
WAYNE So you never had a staff meetIng to reVIew my VIsItatIOn or had
employees sIgn my report?
GRANT No but I thInk they had read It because they agreed to qUIt bUYIng
US funds wIth thIS procedure
WAYNE How much money do you thInk you may have exchanged so far
thIS year?
GRANT No much (SIC) - no more than $100 00
WAYNE AnythIng else wIth regards to procedures not beIng followed that I
should be aware of)
GRANT No I don't thInk so
In hIS eVIdence Mr LIddle said that the purpose of thIS meetIng was "to dISCUSS the
procedure Issue about Bruce Rawn" He testIfied that pnor to the meetIng he thought that
9
he would ultImately recommend a counselIng letter for Mr Rawn and a reVIew of the
polIcy He stated that there was "no dIscIplInary actIOn thought of at the tIme" At no
pOInt dId he offer the gnevor a umon steward to assIst hIm dunng thIS meetIng.
In cross eXamInatIOn Mr LIddle was asked why he dId not make an offer of a umon
representatIve to the gnevor dunng the meetIng and he replIed that he "felt that he had
already blurted out the mIstake he made and at the tIme a rep was four hours away In
Thunder Bay If I could get one" He made no phone calls to any Umon representatIve or
to any other management personnel to dISCUSS the Issue of umon representatIOn at any
pOInt dunng thIS meetIng. When asked why he dIdn't call a Umon representatIve Mr
LIddle said that "It was the end of a long day and we were gOIng to meet the next day for
another dIstnct managers meetIng" Mr LIddle was asked If It occurred to hIm to
postpone the meetIng untIl the next day when Umon representatIOn could be obtaIned.
AgaIn he said no despIte the fact that he was gOIng to be In Fort Frances on the folloWIng
day He said that "hIS day was already planned wIth the managers meetIng and I was
Involved In staff traInIng"
Later In hIS cross eXamInatIOn when he was asked If It ever occurred to hIm that he
should Inform the gnevor of hIS nght to a steward he said that It had "towards the end of
the meetIng when I saw how senous It was becomIng" However not even at thIS pOInt
dId he stop the meetIng. When asked Ifhe put hIS mInd to undue delay Mr LIddle said he
dId. He decIded that he should contInue because "my next two weeks were full up wIth
managers meetIngs - I knew my schedule for the next three weeks and I had to hold the
meetIng to get to the bottom of the matter at hand"
Mr LIddle testIfied that he dIdn't dISCUSS wIth Mr Pedneault hIS concern about whether
Umon representatIOn should be offered because he thought the gnevor had "expenence
and a hIStOry wIth the collectIve agreement" Mr LIddle "expected that he would know
hIS nghts under the collectIve agreement" Finally when asked If the gnevor told hIm
10
InformatIOn that IncnmInated hImself at thIS meetIng, Mr LIddle conceded that that he
dId.
For reasons that wIll be become apparent, I am not settIng out the rest of the consIderable
eVIdence heard regardIng thIS matter
UNION SUBMISSIONS
Mr Flood, for the Umon, submItted that the dIscharge of the gnevor must be found to be
vOId ab initio because of the Employer's faIlure to provIde Umon representatIOn at the
meetIng held on October 27 1998 ArtIcle 26 3 reads as follows
An employee who IS reqUIred to attend a meetIng for the purposes of dISCUSSIng a
matter whIch may result In dIscIplInary actIOn beIng taken agaInst the employee
shall be made aware of the purpose of the meetIng and hIs/her nght to Umon
representatIOn In advance of the meetIng. The employee shall be entItled to have a
Umon representatIve at such meetIng provIded thIS does not result In undue delay
Mr Flood revIewed the eVIdence of Mr LIddle whereIn he stated that he consIdered the
Issue of Umon representatIve towards the end of hIS meetIng wIth the gnevor but that he
contInued because he knew that he was busy In the folloWIng two weeks and he sImply
"had to get to the bottom of the matter" The provIsIOn In the Instant collectIve agreement
IS mandatory and therefore It IS not WIthIn the dIscretIOn of a manager to determIne If hIS
busy schedule overndes the nghts of a member of the bargaInIng umt. Clauses such as
artIcle 26 3 are negotIated to ensure that employees have representatIOn and advIce at a
tIme when they are most vulnerable, that IS, when a potentIal dIscIplInary matter IS beIng
addressed. The Junsprudence specIfically states amongst other thIngs that an employee
cannot be put Into a sItuatIOn where s/he mIght make IncnmInatIng statements wIthout
benefit of umon representatIOn. That IS precIsely what occurred In thIS Instance The
gnevor opened the meetIng by statIng that "It was all hIS fault" Once that was said, there
could have been no doubt In Mr LIddle's mInd that the dIscussIOn takIng place could
bnng about dIscIplIne He admItted that thIS thought crossed hIS mInd but he contInued
because he was a busy man.
11
In Re The Crown in Right of Ontario (Liquor Control Board of Ontario) and
OLBEU (Lahay) (August 15 1995), unreported (Gorsky) the gnevor was asked to leave
hIS cash regIster and proceed Into the manager's office There were five people In total at
the meetIng and the gnevor soon apprecIated that one of the attendees was a polIce
officer The gnevor was asked questIOns about a partIcular IncIdent concernIng the takIng
of money from the cash drawer The gnevor responded that he mIght have been makIng
change for hImself and when he was specIfically asked by the polIce officer If that was
hIS statement, he replIed he had no statement to make The gnevor was then arrested for
theft under $1 000 It was the Umon's posItIOn that thIS meetIng was the begInmng of the
process leadIng to the Employer's dIscIplInary response It was the Employer's VIew that
the dIscussIOn that took place was not a "meetIng" as consIdered by the provIsIOn In the
collectIve agreement. Vice Chair Gorsky agreed wIth the Umon's VIew There was also
dIscussIOn about whether artIcle 263 provIdes a substantIve nght to employees He
stated, begInmng at page 50
Although It IS necessary to pay close attentIOn to the wordIng of the partIcular
provIsIOns of the artIcle Said to have been vIOlated so as to led to the conclusIOn
that the dIscIplIne Imposed IS VOId ab ImtIO, I am satIsfied that art. 263 represents
a substantIve and not a procedural reqUIrement In accordance wIth the lIne of
cases folloWIng Milnes Fuel OIl Ltd. (above)
.ArtIcle 26 3 creates a substantIve nght whIch can only be waived by the
employee Involved. That nght IS to make the affected employee" aware of the
purpose of the meetIng and hIs/her nght to Umon representatIOn In advance of the
meetIng" The gnevor never waived hIS nghts
ContInuIng at page 53 he said
The fact that the gnevor was, by ExhIbIt 4 furnIshed wIth an opportumty to
submIt a wntten statement by regIstered mall explaInIng hIS actIOns wIth respect
to the alleged Improper cashIenng 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 meetIng of June 13 1994 the
gnevor's beIng suspended on that date (ExhibIt 4) and hIS beIng termInated on
June 23 1994 (ExhIbIt 6) It IS artIficIal to arbItranly dIVIde the process whereby a
meetIng was held on June 13 to dISCUSS a matter whIch mIght result In dIscIplInary
12
actIOn beIng taken agaInst the Gnevor and events folloWIng whIch were
Inextncably assocIated wIth It That IS, to state that the June 13 meetIng was
InSUfficIently related to the dIscharge of June 23 In 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 meetIng of June 13th the suspenSIOn Imposed, and the
dIscharge are so Inextncably lInked so as to taInt not only the suspenSIOn but the
dIscharge
Vice Chair Gorsky also dealt wIth the Issue of the Umon's delay In raiSIng the argument
that the dIscharge was vOId ab initio In that regard he stated at page 57
I have a problem, however wIth awardIng the Gnevor benefits and compensatIOn
from the date of hIS beIng dIscharged. ThIS IS because of the faIlure of the Umon,
untIl May 25 1995 to alert the Employer of ItS IntentIOn to rely on the faIlure to
comply wIth art. 26 3 as a basIs for makIng an applIcatIOn at the commencement
of the heanng on June 5 1995 to have the dIscIplIne declared vOId ab initio It IS
one thIng to find that the claim was subsumed In the gnevance See Alcan Wire
and Cable, above at p 10 and that It can be therefore be raised at the heanng. It
IS qUIte another thIng to say that relIef should always be related back to the tIme of
the dIscharge Ibid. at p 11
In the case of a gnevance that has been proceeded through the three steps of the
gnevance procedure, It would be expected that the Issue relatIng to the
Employer's faIlure to comply wIth the provIsIOns of art. 26 3 would, at some pOInt
In the procedure, have been raised by the Umon. In thIS case, In the absence of
pnor notIficatIOn by the Umon, I find that the Employer only knew of the Issue on
May 25th Because It was not Informed of the Issue before me untIl that date, It
was depnved of the opportumty to consIder ItS posItIOn In the lIght of the
ImplIcatIOns that were raised for the first tIme on May 25th If It had the
opportumty to do so dunng the normal functIOmng of the gnevance procedure, It
could have acknowledged ItS faIlure to comply wIth art. 263 at mImmal cost and
then proceeded to dIscharge the Gnevor In complIance wIth the reqUIrements of
the collectIve agreement, as Mr DrmaJ suggested could be done In raisIng thIS
possIbIlIty I am not saYIng that such an actIOn would necessanly succeed.
If the Umon had promptly raised the Issue at an earlIer pOInt In tIme as It should
have, and the Employer had maIntaIned ItS posItIOn, I would have had no problem
wIth awardIng compensatIOn to the Gnevor from the date of hIS dIscharge
However In the CIrcumstances before me, It would be unfair to do so and I award
compensatIOn and benefits only from the date of notIficatIOn (May 25 1995)
In a later decIsIOn, Vice Chair Mikus was asked to consIder the Issue of whether hand-
delIvenng NOIDs to employees renders any resultant dIscIplIne vOId ab initio In re The
Crown in Right of Ontario (Liquor Control Board of Ontario) & OLBEU
(Franssen) (May 16 1966) Mikus (unreported), the gnevor was handed SIX NOIDs by hIS
13
manager and the gnevor made some comments to hIS manager at the tIme such as "the
NOIDs were nonsense" Two further NOIDs were Issued VIa the mall In consIdenng the
matter Ms Mikus stated at page 8
With respect to the first group It IS clear from the eVIdence that there has been a
breach of artIcle 263 IrrespectIve of the slIghtly dIfferent verSIOns of the actual
conversatIOn between Mr PoulIn and the gnevor when Mr PoulIn elected to
present the NOIDs personally to the gnevor he ImtIated a meetIng to dISCUSS
matters that not only mIght lead to dIscIplIne but, In fact, were destIned to result In
dIscIplIne, gIven the nature of the allegatIOns In the cIrcumstances, the gnevor
had no alternatIve but to meet wIth Mr PoulIn. He was not advIsed In advance of
the purpose of the meetIng, nor was he advIsed that he could have a Umon
representatIve assIst hIm Even though Mr PoulIn dId not make any Inqumes of
the gnevor the fact IS he put the gnevor In the vulnerable posItIOn of possIbly
makIng statement agaInst Interest wIthout the advIce and assIstance of a Umon
representatI ve That the gnevor dId not make any Inculpatory statements IS
Irrelevant to the Issue The fact IS he could have and, If he had, the Employer no
doubt, would have relIed on those admIssIOns In determInIng whether to dIscIplIne
the gnevor The NOIDs 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 NOIDs are vOId ab initio The
gnevor was summoned to a meetIng for the sole purpose of beIng handed
addItIOnal NOIDs AgaIn, he was not advIsed before the meetIng of the purpose of
the meetIng or of hIS nght to Umon representatIve Even though the NOIDs were
In an envelope and there was no dIscussIOn of the allegatIOns themselves, the
gnevor was once agaIn placed In the vulnerable posItIOn of beIng handed notIces
of Intended dIscIplIne wIthout regard to hIS nghts under the collectIve agreement.
It would have been natural In the CIrcumstances for hIm to have InqUIred about the
contents of the envelope He knew he was In trouble by that tIme There was a
substantIal nsk that he could have made statements agaInst Interest dunng that
meetIng. If he had, agaIn I have no doubt that the Employer would have relIed on
those statements at a subsequent arbItratIOn heanng. ArtIcle 263 IS very broadly
worded. Any dIscussIOn wIth an employee that mIght lead to dIscIplIne IS subject
to the reqUIrement that an employee be advIsed In advance of the meetIng and the
purpose and that he/she IS entItled to Umon representatIOn. GIven the number and
senousness of the allegatIOns In the gnevor's NOIDs, 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
In the Instant matter Mr Flood suggested, we have precIsely the sItuatIOn that both Vice
Chair Mikus and Gorsky were concerned about. The gnevor was asked to and dId attend
at a meetIng wIth hIS manager The gnevor began the meetIng by statIng that the whole
sItuatIOn was hIS fault. There can be no doubt that the gnevor was vulnerable The rest of
14
the meetIng was about the gnevor's Involvement In the matter Dunng the meetIng he
made Inculpatory statements and Mr LIddle conceded that he put hIS mInd to the fact that
the gnevor probably should have representatIOn. However he was too busy to follow the
procedure establIshed In the collectIve agreement. Indeed, he contInued to exact further
damagIng InformatIOn from Mr Pedneault.
The Umon contended that It IS not necessary for the Employer to know In advance that
dIscIplIne wIll flow from the dIscussIOn held dunng a meetIng. ArtIcle 26 3 IS sufficIently
broad to protect employees In thIS regard. The artIcle consIders an employee attendIng at
"a meetIng for the purpose of dISCUSSIng a matter whIch may result In dIscIPlInary actIOn
beIng taken agaInst the employee shall be made aware of the purpose of the meetIng and
hIs/her nght to Umon representatIOn In advance of the meetIng" In all of the
CIrcumstances of thIS matter Mr LIddle should have known of the lIkelIhood of
dIscIplIne because the meetIng was held to dISCUSS the NOID sent to Mr Rawn whIch
arose from transactIOns of US money Mr LIddle knew that there was dIscussIOn between
hImself and the gnevor regardIng thIS matter not two months prevIOusly He must have
consIdered a vanety of possIbIlItIes He must have wondered whether the gnevor
followed hIS InstructIOns and told Mr Rawn about the polIcy or whether the gnevor knew
of the transactIOn pnor to the Integnty shoppers reportIng the matter All of these
possIbIlItIes must have been, or should have been, consIdered In advance of the October
27 1998 meetIng. It must be found that there sImply was no attempt whatsoever to
comply wIth the clear provIsIOn of the collectIve agreement.
The Umon asserted that the nght to Umon representatIOn IS analogous to the nght to
counsel In cnmInal cases These nghts have sImIlar purposes, that IS, the nght to counsel
or representatIOn and the nght not to self-IncnmInate In thIS regard the Umon relIed on
Re Regina v Sawatsky (1997) 35 O.R. (3d) 767 (Court of Appeal for Ontano)
(Catzman, Doherty & Moldaver JJ.A.)
15
Mr Flood suggested that In the event the Employer argued undue delay It then bears the
onus to show harm or some negatIve result floWIng from the delay In the Instant matter
the Employer made no effort In attemptIng to reschedule the meetIng. Mr LIddle sImply
decIded that he would fimsh meetIng wIth the gnevor wIthout any effort to find Umon
representatIOn.
It was the Umon's assertIOn that the breach of artIcle 26 3 In thIS case In not IncIdental It
IS the very key to the Employer's case The eVIdence that goes to the matter of just cause
In these proceedIngs are those very facts that were ImtIally admItted by the gnevor In the
meetIng of October 27 1998 both wIth respect to the events of October 23 1998 and
wIth respect to the practIce In the Fort Frances store Without the gnevor's admIssIOns,
the Employer's case would have been very dIfferent. Further In thIS matter as In the
LeHay (supra) case, there was a subsequent meetIng to "mop up" the detaIls floWIng
from the gnevor's ImtIal statements ThIS Board should follow the Lehay decIsIOn and
find that the second IntervIew was the "fruIt of a pOIsoned tree" and therefore should not
be taken Into account.
It was the Umon's VIew that the gnevor's dIscharge could be vItIated on thIS basIs In the
alternatIve, the eVIdence Improperly receIved as a result of ItS breach of artIcle 26 3 must
be excluded from delIberatIOns as to the matter of just cause
EMPLOYER SUBMISSIONS
Ms Renton, for the Employer remInded the Board that Mr Pedneault had filed
gnevances In the past. Therefore he knew of hIS nghts under the collectIve agreement. He
knew there was a meetIng on October 27 1998 scheduled to dISCUSS the CIrcumstances
surroundIng the IncIdent of October 23 1998 InvolvIng Mr Rawn. There was also
eVIdence that Ms Clements-PItchkur spoke to the gnevor about umon representatIOn
dunng theIr telephone dIscussIOn regardIng delIvery of the NOID to Mr Rawn. Mr
LIddle testIfied about the sIgmficant problems Involved In obtaInIng umon representatIOn
16
In the northern regIOn. Further no dIscIplIne flowed from the meetIng of October 27
1998 The NOIDs sent to the gnevor were Issued later In November All of these facts
must lead thIS Board to dIsmIss the Umon' S request that the dIscharge be found to be vOId
ab initio
The Employer asserted that artIcle 26 3 provIdes the nght to umon representatIOn to an
employee who IS attendIng a meetIng that IS beIng held to dISCUSS matters that may result
In hIS own dISCIplIne In the Instant matter the meetIng was beIng held to dISCUSS the
possIble dIscIplIne ofMr Rawn, not the gnevor The meetIng was not desIgned to dISCUSS
the gnevor but to establIsh the facts surroundIng Mr Rawn's IndIScretIOn. There was no
eVIdence that the Employer knew of the gnevor's Involvement pnor to the begInmng of
the meetIng on October 27 1998 Therefore the protectIOn mIght not be automatIc and In
thIS case because of the umque cIrcumstances, It does not apply
It IS for thIS reason that the Franssen and LaBay cases can be dIstIngUIshed, the
Employer contended. The matter at Issue In both of those cases was whether the
dIscussIOns were meetIngs as consIdered by artIcle 263 In Franssen, Vice Chair Mikus
found that there was a meetIng when the NOIDs were hand delIvered to the gnevor But It
IS Important to note that the NOIDs were for the gnevor not for another employee Mr
Pedneault dId not receIve a NOID on October 27 1998 The only NOID at the tIme was
the one he hImself Issued to Mr Rawn. SImIlarly Franssen does not consIder a sItuatIOn
where one bargaInIng umt member goes to a meetIng to dISCUSS a dIfferent bargaInIng
umt member No Inference can be drawn that the protectIOn afforded by artIcle 26 3 flows
to a meetIng held to dISCUSS any employees actIOns
In LaBay It was stated that the substantIve nght could only be waived by the gnevor In
the Instant matter the gnevor knew about hIS nghts under the collectIve agreement and he
knew what the meetIng of October 27 1998 was about In advance It was the Employer's
posItIOn that those facts should be taken to be tantamount to a Waiver of the gnevor's
nghts
17
Ms Renton submItted that, In the event that I agree wIth the Umon that the Employer
breached artIcle 26 3 In the CIrcumstances of thIS case, I should declIne to reInstate the
gnevor In thIS regard the Employer relIed upon Northwest Territories Power
Corporation and Union of Northern Workers (1997) 72 L.AC (4th) 80 (T JollIffe) In
that case, the Board found that there was a breach of a mandatory and substantIve nght to
umon representatIOn but faIled to reInstate the gnevor because of hIS grave mIsconduct.
The gnevor had mIsappropnated In excess of four thousand dollars over the course of a
number of months There was a findIng that the gnevor was not gIven umon
representatIOn In accordIng wIth the substantIve nght found In the collectIve agreement.
However Instead of reInstatement, an award of damages In lIeu of reInstatement was
made It was the Employer's posItIOn In the Instant matter that such a remedy would be
appropnate If a findIng of a contractual breach IS made
The Employer also relIed on Re Valdi Foods (1987) Inc. and United Food &
Commercial Workers, Local 175 (1990) 16 L.AC (4th) 318 (Brandt) and Re Brink's
Canada and Independent Canadian Transit Union, Local 1 (1995) 47 LAC (4th)
342 (Bluman)
Ms Renton asserted that I should also take Into account the matter of undue delay The
Umon suggested that It would have been a sImple matter for Mr LIddle to end the
meetIng and reschedule It to a tIme when a umon representatIve was avaIlable ThIS
sImply IS not practIcal and the eVIdence on thIS pOInt was clear There are few
representatIves and the geographIc realItIes of the northern regIOn are such that there IS a
valId concern regardIng undue delay In any event, as the eVIdence ofMr LIddle revealed,
the gnevor had "already blurted out" hIS Involvement In the matter
The Employer dIsagreed wIth the Umon's submIssIOn that It would have had InSUfficIent
eVIdence for a findIng of just cause In the absence of the gnevor's admIssIOns The
Employer had Mr Rawn's response to hIS NOID and statements of other employees In
18
the Fort Frances store That eVIdence would have substantIated a findIng of just cause for
dIscharge
In reply the Umon referred to the Employer's acknowledgment that the gTIevor was
oblIged to attend at the October 27 1998 meetIng. That oblIgatIOn engages the first part
of artIcle 26 3 The gTIevor cannot be faulted for IncTImInatIng hImself when attendIng a
meetIng that he IS oblIged to attend. The Employer had the oblIgatIOn to advIse an
employee of hIS TIght to Umon representatIOn In those CIrcumstances
The Employer suggested that the gTIevor waived the TIght to representatIOn because he
knew that he was In trouble that he mIght be ultImately dIscIplIned and he attended the
meetIng In any event. The Umon strenuously dIsagreed. There was no eVIdence that the
gTIevor knew he had thIS TIght even though he had filed gTIevances In the past. There was
nothIng that would alert the gTIevor that he could have Umon representatIOn dUTIng hIS
dIscussIOn wIth Mr LIddle on October 27 1998 ThIS Board should take a purposIve
meamng of artIcle 263
RegardIng the Issue of undue delay It was the Umon's VIew that It was up to the
Employer to show some prejUdICe because of the delay and there sImply was no such
eVIdence There was no explanatIOn as to why the meetIng had to held on October 27
1998 except that Mr LIddle was a busy man wIth a full schedule That IS not enough to
establIsh undue delay In thIS case, there IS an assertIOn of undue delay In a factual
vacuum It can not be said by the Employer that there would have or could have been
undue delay when the eVIdence was that there was never any attempt by Mr LIddle to
ascertaIn whether a umon representatIve was avaIlable
Finally the Umon contended that artIcle 26 3 should not be gIven the narrow and self-
servIng meamng the Employer IS suggestIng. ThIS Board should find that as soon as an
employee begIns to self-IncTImInate hImself In a meetIng certaIn TIghts must flow
19
DECISION
The Issues for thIS Board to decIde In consIdeTIng whether the dIscIplIne should be found
to be vOId ab initio are
. does the meetIng of October 27 1998 between the gTIevor and Mr LIddle
constItute a meetIng as consIdered under artIcle 26 3 whIch would provIde the
gTIevor wIth the TIght to be offered umon representatIOn?
. If so dId the gTIevor Waive hIS TIghts to such notIce?
. Ifnot, dId the dIscharge flow from the meetIng of October 27 1998?
. If so was the faIlure to provIde umon representatIOn offset because of undue
delay?
. If not, what IS the appropTIate remedy?
ThIS Board has twIce addressed and made determInatIOns about the language at Issue In
thIS case Both awards made clear that artIcle 26 3 IS a substantIve TIght. In LaBay Vice
Chair Gorsky dId a consIderable reVIew of the jUTI sprudence Mr Gorsky had to consIder
whether the meetIng held where by the Employer whereIn the gTIevor was arrested by the
polIce constItuted a meetIng as consIdered under artIcle 263 In makIng that
determInatIOn he set out some of the relevant case law He cIted Re Bickeson-Langs
Supply Co. (1985) 19 L.AC (3d) 379 (Burkett) There was a quote from that decIsIOn
whIch was found at page 392
Although the meetIng conducted between the company and Mr Laidlaw was part
of an InVestIgatIOn, the fact remaInS that It was a meetIng WIth management wIthIn
the meamng of eIther artIcle 602 or 606 and that Mr Laidlaw was demed the
representatIOn to whIch he was entItled, the purpose of whIch has been descTIbed
In Re Canadian Canners Ltd. and International Association of Machinists
(1974) 5 LAC (2d) 323 (Brandt) [at page 325]
and ensure that the employee IS fully advIsed of hIS TIghts and also to
facIlItate some dIscussIOn whIch mIght lead to an amIcable settlement of
the dIspute, short of any formal actIOn beIng taken.
In the face of the meetIng have been conducted wIthout Mr Laidlaw havIng umon
representatIOn, as he was entItled to and consIstent WIth the cases that have held
20
that dIscIplIne subsequently Imposed In thIS case IS null and vOId If the
employee's contractual TIght to due process IS Ignored, we hereby find that the
dIscIplIne IS null and vOId. The partIes negotIate certaIn safeguards wIth respect to
the manner In whIch dIscIplIne IS to be Imposed and/or the employer IS to confront
the employee wIth respect to any other matter under the collectIve agreement.
These safeguards are In the nature of a contractual due process WhIle It may seem
unfair to the employer to have ItS actIOns found to have been null and vOId, the
due process provIsIOns are central to the representatIOn provIded under the
collectIve agreement and, In our VIew there IS no other way to gIve real meamng
to them
Mr Gorsky also quoted arbItrator DavIs about the purpose of such provIsIOns In Re
Queen Elizabeth Hospital (1988) 2 L AC (4th) 1 whereIn she stated at page 6
such representatIves wIll be In a better mental state at that moment to cope
wIth the Issue than the gTIevor and wIll be able to provIde the gTIevor wIth tImely
advIce
UltImately Mr Gorsky decIded that the meetIng held was a meetIng that would "tTIgger"
the substantIve TIght of artIcle 263 Ms Mikus In Franssen decIded that the hand
delIveTIng of NOIDs to a gTIevor constItuted a meetIng as consIdered In artIcle 263 As IS
clear from the quote set out earlIer hereIn, she relIes heavIly on the purpose of the
provIsIOn In arnvIng at her determInatIOn as to whether that encounter was a meetIng.
In the Instant case, there IS no dIspute that a meetIng was held on October 27 1998
However It IS the Employer's posItIOn that because the oTIgInal purpose of the meetIng
whIch was made clear to the gTIevor In advance, was to dISCUSS Mr Rawn's actIOns, Mr
Pedneault was not entItled to umon representatIOn as consIdered by artIcle 263 I must
dIsagree The mere fact that the oTIgInal IntentIOn of the meetIng was to dISCUSS Mr Rawn
does not constraIn or elImInate the gTIevor's TIghts As was said by Ms Mikus In
Franssen, artIcle 26 3 IS "very broadly worded" She went on to say that "any dIscussIOn
wIth an employee that mIght lead to dIscIplIne IS subject to the reqUIrement that an
employee be advIsed In advance of the meetIng and the purpose and that he/she IS entItled
to Umon representatIOn"
21
If It had happened at the October 27 1998 meetIng that once the gTIevor said "It'S all my
fault" Mr LIddle stopped the meetIng and Informed the gTIevor of hIS TIght to umon
representatIOn and the Umon was now arguIng that the Employer's faIlure to notIfy the
gTIevor In advance of hIS TIght to representatIOn then thIS mIght well have been a dIfferent
matter In thIS case, I do not fault the Employer for not tellIng the gTIevor In advance that
he had the TIght to representatIOn. However thIS Issue IS not that narrow In thIS case the
gTIevor attended at a meetIng that was not optIOnal and the very Instant that the gTIevor
said the matter was "all hIS fault" the focus of the meetIng and of Mr LIddle's attentIOn
shIfted from Mr Rawn to Mr Pedneault. ThIS complete turnIng of events changed the
meetIng Into one whIch tTIggered the TIghts found In artIcle 26 3
The second Issue to address IS whether the gTIevor waived hIS TIghts under artIcle 263
when he attended at the October 27 1998 meetIng and dId not request umon
representatIOn. SImply put, the answer IS no The gTIevor was Instructed by hIS dIStTICt
manager to attend at a meetIng. It was not an InVItatIOn that the gTIevor could refuse at hIS
leIsure He was expected to attend and he dId. Therefore, hIS mere partIcIpatIOn In the
meetIng cannot be held agaInst hIm. The Employer suggested that Mr Pedneault knew he
was In trouble and yet he attended the meetIng In any event. That may be However hIS
OpInIOnS as to what mIght occur at the meetIng dId not relIeve the Employer ItS
oblIgatIOns under artIcle 26 3
The Employer further argued that the gTIevor was a SOphIstIcated member of the
bargaInIng umt. He testIfied that he had gTIeved In the past and therefore he must have
known hIS TIghts under the collectIve agreement IncludIng hIS TIght to umon
representatIOn. His faIlure to have such representatIOn or request It constItutes a waiver
AgaIn, I dIsagree I have no eVIdence that the gTIevor knew of hIS TIghts under artIcle 26 3
pTIor to hIS gOIng Into the meetIng of October 27 1998 and even If that eVIdence was
presented It does not take away from the clearly stated responsIbIlIty of the Employer to
make an employee aware of hIs/her TIght to umon representatIOn. SettIng aSIde the
employer's responsIbIlItIes for a moment, a findIng of Waiver would reqUIre knowledge
22
of a TIght and a clearly stated IntentIOn to Waive that TIght. I cannot find that the gTIevor
waived hIS TIghts under artIcle 26 3 In the present matter
The thIrd Issue IS whether the gTIevor's dIscharge flowed from the meetIng of October 27
1998 It was the Employer's posItIOn that no dIscIplIne flowed from that meetIng. It took
the posItIOn that the NOIDs that the gTIevor receIved were not Issued untIl November and
hIS dIscharge was not untIl November 17 1998 I cannot accept that there was no
dIscIplIne that flowed from the October 2ih meetIng between Mr LIddle and the gTIevor
Indeed, even a cursory reVIew of the letter of termInatIOn reveals that many of the facts
the gTIevor admItted to dUTIng that meetIng were relIed upon by the Employer In ItS
deCISIOn to dIscharge In hIS decIsIOn In LaHay Mr Gorsky referred to a "seamless
connectIOn" between the meetIng at Issue and Mr LaHay's suspenSIOn and ultImate
dIscharge I agreed wIth hIS VIew that "It IS artIficIal to arbItraTIly dIVIde the process
whereby a meetIng was held to dISCUSS a matter whIch mIght result In dIscIplInary
actIOn beIng taken agaInst the gTIevor and the event folloWIng whIch were InextTIcably
assocIated wIth It" In my VIew the dIscharge of the gTIevor was the end of a process
whIch began dUTIng the meetIng of October 2ih
The next matter to address IS whether the faIlure to provIde umon representatIOn was
mItIgated because of undue delay It was the Employer's submIssIOn that the TIght to
representatIOn In artIcle 26 3 IS not automatIc It IS constraIned by the end of the provIsIOn
that states "the employee shall be entItled to have a Umon representatIve at such meetIng
provIded thIS does not result In undue delay" To be clear the Employer argued that the
TIght to umon representatIOn IS "not automatIc" In my VIew It IS unnecessary for me to
determIne thIS matter because the part of the artIcle vIOlated by the Employer was ItS
oblIgatIOn to Inform the gTIevor of hIS TIght to a representatIve, not the Employer's faIlure
to provIde that representatIOn. Undue delay would be an appropTIate matter for my
consIderatIOn If the Employer told the gTIevor of hIS TIght to Umon representatIOn and
then refused to provIde It. However If I am wrong In that VIew there sImply IS no
eVIdence before me that there would have been undue delay In thIS case In order to
23
provIde the gTIevor wIth representatIOn. It IS true that I heard that Umon representatIves
are few and far between In the northern regIOn. However Mr LIddle made no effort at all
to see If representatIOn could be arranged. He candIdly admItted that It occurred to hIm
well Into the meetIng that perhaps the gTIevor should have a Umon representatIve but he
dId not even stop the meetIng at that pOInt. He dId not make one phone call He contInued
wIthout hesItatIOn because he wanted to get to the bottom of the matter and hIS schedule
for the folloWIng two weeks was busy The busy schedule of a manager IS certaInly not
sufficIent to establIsh undue delay for the purposes of artIcle 26 3 The employer's need
to "get to the bottom" of an Important Issue cannot overnde substantIve employee TIghts
that were negotIated to protect employees from sItuatIOns just lIke the Instant case, that IS
where an employee IS ultImately dIscharged or otherwIse dIscIplIned. I find there was no
undue delay In thIS matter
Therefore, I am of the VIew that the Employer vIOlated artIcle 263 when It faIled to
advIse the gTIevor of hIS TIght to umon representatIOn at the meetIng of October 27 1998
and that the resultant dIscharge IS VOId ab initio The Employer urged thIS Board to
provIde a remedy other than reInstatement In the event of such a findIng and relIed upon
Northwest Territories Power (supra) In that case, arbItrator JollIffe said at page 108
To award the gTIevor only damages In these CIrcumstances of breached mandatory
substantIve TIght to Umon representatIon, as opposed to requmng hIS
reInstatement, IS an exceptIOnal remedy It flows from my conclusIOn that the
gTIevor's admItted wrongdoIng of delaYIng, mIsapplYIng and then
mIsappropTIatIng altogether many customer payments IS of the gravest nature I
note also the level of hIS responsIbIlItIes, hIS posItIOn of trust as the only full-tIme
CorporatIOn employee statIOned In Lake Harbour and hIS own eVIdence that If
reInstated he would not want to contInue performIng the reqUIred
financIal/customer servIce aspects of hIS job Successful reInstatement IS not
realIstIcally obtaInable I consIder that the damages should be assessed on the
basIs of what IS fair and reasonable In the CIrcumstances havIng regard to the
gTIevor's length of servIce sIgmficance of hIS posItIOn WIth the CorporatIOn and
poor chance or any re-employment wIthIn the commumty In any eqUIvalent work.
TakIng all these matters Into account, I award the monetary eqUIvalent of four
months' salary beIng earned at the tIme of dIsmIssal wIth Interest thereon and wIth
appropTIate deductIOns to be made for any earmngs In mItIgatIOn dUTIng that
peTIod of tIme The award IS also subject to the CorporatIOn's oblIgatIOn to
24
comply wIth any statutory reqUIrements such as unemployment Insurance payback
oblIgatIOns
After much consIderatIOn I do not consIder thIS a case that IS so exceptIOnal that I would
stray from the usual path of reInstatement. The fact that were present In the Northwest
Territories case are dIfferent from those before me For example, In that case, the gTIevor
had four years of servIce WIth one dIscIplInary repTImand. In the Instant matter Mr
Pedneault has worked for the LIqUor Control Board for twenty four years and has had a
clean record throughout. Although the gTIevor would return to a posItIOn of trust, I am
confident that he can meet the Board's expectatIOns In thIS regard. I found the gTIevor to
be genuInely contTIte and I suggest he wIll make the most of a second chance
For those reasons, the dIscharge IS VOId ab initio The final Issue to be addressed IS what
effect, If any should the Umon's delay In raiSIng thIS matter wIth the Employer have
upon the remedy The Employer was notIfied of the Umon's IntentIOn to raise the Issue of
artIcle 26 3 sometIme In May of 1999 some SIX months after the date of the dIscharge
ThIS matter was dIscussed thoroughly by Vice Chair Gorsky In LaHay and I do not
Intend to stray from that decIsIOn. AccordIngly the gTIevor IS to be reInstated to hIS
posItIOn (includIng locatIOn) as of the date the Umon notIfied the Employer of ItS
IntentIOn to raise thIS matter The gTIevor IS entItled to full compensatIOn, benefits and
semoTIty as of that date
I remaIn seIzed In the event there are any dIfficultIes ImplementIng thIS decIsIOn.
Dated at PIcton, thIS 8th day of August, 2000
~
FelIcIty D BTIggs
Vice Chair
(electromcally sIgned)
25