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HomeMy WebLinkAbout1999-0800.Braybrook.00-01-17 Decision i\~AFLI EUEL 'E LA .'E rill'f EUE L "TE,c E L i\~AFLI GRIEVANCE COMMISSION DE -- SETTLEMENT REGLEMENT BOARD DES GRIEFS 180 DUNDAS STREET WEST SUITE 600 TORONTO ON M5G 128 TELEPHONBTELEPHON~ (416) 326-1388 180 RUE DUNDAS OUEST BUREAU 600, TORONTO (ON) M5G 128 FACSIMILBTELECOPIE. (416) 326-1396 GSB # 0800/99 OLBEU # OLB244/99 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SElTLEMENT BOARD BElWEEN Ontano LIquor Boards Employees Umon (Braybrook) Grievor - and - The Crown m Right of Ontano (LIquor Control Board of Ontano) Employer BEFORE Nimal DISSanayake Vice Charr FOR THE Bernard S Fishbem GRIEVOR Counsel KoskIe & Minsky Barnsters & SohcItors FOR THE Ahson E. Renton EMPLOYER Counsel, Legal ServIces LIquor Control Board of Ontano HEARING December 16 1999 Preliminary Decision A discharge grlevance dated July 12, 1999 filed by Mr Terry Braybrook came before me for hearing on December 16, 1999 The discharge of Mr Braybrook was effected by letter dated July 5, 1999 signed by Mr D J Go lding, District Manager It reads This letter lS further to my correspondence dated May 20, 1999, In which I advised you that your behaviour would not be tolerated any longer and that the next infraction, relative to your attendance or punctuality, would result In immediate termination As you are aware, the LCBO has been addressing your on- gOlng attendance and punctuality problems Slnce at least October 1995 In Vlew of continuing problems In this area, the LCBO made arrangements for you to attend a Musculoskeletal Screen and Physical Capacity Evaluation on March 4, 1998, and a Functional Tolerances Evaluation on March 5, 1998 In view of your numerous absences, the LCBO specifically requested an objective medical oplnlon concernlng your ability to be able to work 40 hours per week, or, 5 8-hour shifts per week The LCBO was advised that there were no medical findings to prevent you from doing so Furthermore, the LCBO noted that your absences are largely tied to weekends, namely Mondays, Fridays, or Saturdays, and, despite requests we have not been supplied with any medical findings to support your repeated and sporadic inability to attend work On September 22, 1998, you signed Minutes of Settlement, in the presence of your Union Representative and executed by your Union, In which you agreed to lmprove your overall attendance not to exceed more than 10 days, the corporate average, per year You further agreed to lmprove your overall punctuality and to supply management with a medical note to substantiate every absence within 3 days Conversely, the LCBO agreed to transfer you to another store, once agaln, as a means of offering you a last chance opportunity 3 As of June 25, 1999, Slnce slgnlng the minutes of settlement on September 22, 1998, you have been absent on 13 separate occaSlons, excluding time off for last minute vacation requests Moreover, you have left your post repeatedly, without authorization from your Manager, for cigarette breaks, in addition to your regularly scheduled break and lunch periods You have also been late on numerous occaSlons, including, but not limited to, May 20, 1999, the day following your meeting with myself, Nicole Mahone y , H R Consultant, and Mr Oliver, your Union Representative, during which we discussed these very lssues In light of your past history, the L C B O-s efforts to resolve these lssues, and your continued unwillingness or inability to lmprove, your disciplinary record, and your failure to comply with the singed Minutes of Settlement dated September 22, 1998, the LCBO lS terminating your employment effective immediately The employer-s prlmary position lS that the grlevor was discharged pursuant to the terms set out In the Minutes of Settlement dated September 22, 1998, hereinafter referred to as -the agreement- In the alternative, the employer submits that quite apart from the agreement, In light of the grievor-s preVlOUS disciplinary record it had just cause to discharge the grlevor At the commencement of the hearing, the parties advised that there were a number of outstanding grlevances relating to disciplinary penalties imposed on the grlevor subsequent to the agreement and prlor to his discharge They agreed that the outcome of the discharge grlevance before me may depend on 4 whether or not any or all of the discipline In those prlor grlevances lS upheld, because that would determine the extent of the gr ievor.s discipline record The parties agreed that In those circumstances, I should hear all of the outstanding grlevances filed by the grlevor Having reached that agreement, however, the parties were In dispute on two aspects of how the hearing should proceed I received submissions on those lssues and upon request agreed to glve the parties time to submit any additional written submissions This decision deals with those procedural lssues, In light of the oral and written submissions received Issue No 1 As a result of the parties. agreement, the following grlevances are now before me (1 ) A 5 day suspenSlon for allegedly being late for work on May 20, 1999 (2 ) A 5 day suspenSlon on May 3, 1999 for allegedly submitting a medical note late with respect to an absence from work (3 ) A 3 day suspenSlon on November 30, 1998, for allegedly having a key to the store office made without permlSSlon 5 (4 ) A grlevance dated December 3, 1998 wherein the grlevor alleges that the employer had subjected him to harassment, discrimination and intimidation The union points out that these grlevances involve unrelated and distinct events which occurred on different dates There will be different facts pertaining to each grlevance In the circumstances, the unlon submits that the grlevances should be heard seriatim Counsel lS of the view that hearing evidence and submissions together on all of the grlevances would make the proceeding too complicated and confusing, and deprive it of any logical flow The employer on the other hand submits that the union-s approach would result In inefficiency The grlevor would have to take the stand several times The District Manager would have to attend hearings on multiple days to testify about each of the discipline grievances Since he is now retired the employer will have to sub-poena him each time If all of the evidence is heard together, those witnesses can testify on all of the grlevances on a single appearance on the stand Counsel submitted that its approach would also shorten the overall hearing time 6 In determining this dispute the Board must weigh the advantages and disadvantages of each approach advocated and resort to the procedure that makes most sense I understand the employer-s concern that some members of management may have to attend hearings on several occaSlons if the grlevances are heard seriatim It may also take a little longer to complete hearings However, I of the that this . . far am Vlew lnconvenlence lS outweighed by the disadvantage of hearing all of the grlevances together Quite apart from the difficulties unlon counsel foresees In presenting evidence In an organized and logical manner, I am most concerned that I might find it confusing trying to sort out what evidence applies to which particular grlevance I have before me several grlevances which deal with similar lssues related to attendance In another grlevance the grlevor alleges discrimination, bad faith and intimidation on the part of the employer I am of the Vlew that if the parties so wish, steps be taken to . . . duplication of evidence For can mlnlmlze instance, the parties may request that the Board apply evidence glven In one hearing to other hearings on matters of common relevance For example, the employment history and duties and responsibilities of a witness In the alternative, a witness may be asked to adopt testimony previously glven There lS much opportunity to . . . if not avoid, duplication mlnlmlze, unnecessary 7 and delay, if the parties have the desire to do so The Board certainly will attempt to accommodate any such endeavours On balance, the Board determines that the balance of convenlence favours hearing the grlevances seriatim, subject to any agreement by the parties or rulings by the Board, on procedures to minimize duplication and delay It lS so ordered Issue No 2 The unlon has taken the position that the employer was not entitled to terminate the grlevor on July 5, 1999, whether such discharge was based on the agreement or based on the grievor-s prlor discipline record and the principles of progresslve discipline The union points out that under either grounds, In order to justify discharge on July 5, 1999 there had to be a culpable act on the part of the grlevor at that time which would trigger the agreement or the principles of progresslve discipline It lS the union-s position that there was no such triggering culpable act at the time of the discharge According to counsel, what occurred was that on or about July 5, management suddenly decided to reVlew the gr ievor-s past record and decided to discharge him because they concluded that the grievor-s record was unacceptable 8 Employer counsel took the position that there was indeed a triggering event which justified the discharge on July 5, 1999, l e the grlevor failed to provide medical notes within the prescribed time period with respect to his absence from work on June 17, 18 and 25 of 1999 In his written submissions unlon counsel appears to suggest that I should determine whether the employer was entitled to discharge the grievor based on these submissions alone I am not prepared to do so In the alternative, counsel suggests that I should initially hear evidence and submissions and determine whether or not there was a triggering culpable event, upon which the employer was entitled to rely If the determination lS that there was no such triggering event, the discharge would be rescinded for that reason alone and the Board would not have to hear evidence and submissions on anything else In his Vlew, this would avoid days of hearings It lS the union-s Vlew that this lS the more efficient and expeditious way of dealing with the discharge grlevance The employer objected to the procedure proposed by the union Counsel pointed out that its position was that even apart from 9 the agreement, it had just cause to dismiss the grlevor on July 5, 1999 based on his prlor record For that reason, counsel urged that I should hear all of the evidence and submissions relating to the discharge grlevance before making any determination There lS no question in my mind that the approach advocated by the union is the more efficient and expeditious way of dealing with this grlevance Has the employer offered any valid reason why that approach lS not appropriate? I do not find any It lS not clear whether it lS the employer-s position that it was entitled to discharge the grievor on July 5, 1999 with or without a triggering culpable act on the part of the grlevor The employer lS entitled to make any submissions In that regard However, it is my decision that this lssue should be determined first as suggested by the union I am not prepared to determine this lssue based solely on these submissions Therefore, with regard to the discharge grlevance, the Board will initially hear evidence and argument on the sole lssue of whether a triggering culpable event was required as a condition of discharge under the agreement and/or the past disciplinary record basis, and if so, whether or not such an event existed 10 justifying the grievor-s discharge on July 5, 1999 I emphasize that the determination will only be a preliminary or -jurisdictional one- If it lS found either that the employer was entitled to discharge the grlevor regardless of a triggering culpable event or that the employer was entitled to rely on such a triggering event, the final disposition of the discharge grievance will have to be made In light of the disposition of the other outstanding discipline grlevances If the finding lS that a triggering event was required for the discharge and that the employer was not entitled to rely on such a triggering event, the discharge grlevance will have to be allowed on that grounds alone, wi thout awai ting the outcome of the other discipline grlevances This proceeding will continue on the dates fixed, In accordance with the rulings made herein Dated this 17th day of January 2000 at Hamilton, Ontario ~~ ":0..- ..... - : :", _ ~J~_ -n=-~ Nimal V Dissanayake Vice Chairperson