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HomeMy WebLinkAbout2002-0507.East.02-10-29 Decision ~M~ om~o EA1PLOYES DE L4 COURONNE _Wi iii~~~i~T DE L 'ONTARIO COMMISSION DE REGLEMENT "IIIl__1I'" BOARD DES GRIEFS Ontario 180 DUNDAS STREET WEST SUITE 600 TORONTO ON M5G 128 TELEPHONElTELEPHONE. (416) 326-1388 180 RUE DUNDAS OUEST BUREAU 600 TORONTO (ON) M5G 128 FACSIMILE/TELECOPIE. (416) 326-1396 GSB#0507/02 UNION#OLB 182/02 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN Ontano LIqUor Boards Employees' Umon (East) Grievor -and- The Crown In RIght of Ontano (LIqUor Control Board of Ontano) Employer BEFORE BelInda KIrkwood Vice-Chair FOR THE UNION JulIa Noble Counsel Ontano LIqUor Board Employees' Umon FOR THE EMPLOYER Myfanwy Marshall Counsel LIqUor Control Board of Ontano HEARING October 16 2002 2 INTERIM DECISION The gnevor was termInated by the Board by letter dated May 13 2002 The first day of heanng was October 16 2002 The ments of the decIsIOn were not heard on the first day of heanng. The first day dealt only wIth opemng statements settIng out the basIs for the Umon's prelImInary obJectIOn to the valIdIty of the gnevor's termInatIOn, and wIth the Board's request for productIOn, and wIth an Issue In the presentatIOn of the Issues I made an Order relatIng to the presentatIOn of the Issues and I Issued an Order orally relatIng to the productIOn Issues at the heanng. On October 24 2002, I was asked by Umon counsel to provIde a wntten decIsIOn on the productIOn Issue and then by Board counsel on the procedure to be followed as It relates to the Issue of past practIce Today I was advIsed by Umon counsel that Umon counsel Intends to rely on my decIsIOn In another case before the Gnevance Settlement Board whIch IS beIng heard tomorrow As thIS Order and decIsIOn IS Intended to be relIed upon In another case and IS not solely for use In the case before me, I have provIded the background to the case as presented by counsel and the submIssIOns of the partIes Pnor to heanng the ments of the case the Umon brought a prelImInary motIOn requestIng that the dIscIplIne be declared null and vOId, as a result of the alleged Board's breach of artIcle 26 3 of the collectIve agreement, for faIlIng to provIde notIce of the purpose of a meetIng whIch could lead to dIscIplIne for faIlIng to provIde notIce In advance of an employee's nght to umon representatIOn at that meetIng, and partIcularly that the nght to umon representatIOn IS provIded unless there was to be undue delay The Board submItted that the provIsIOns of artIcle 26 3 of the collectIve agreement have not been breached as the meetIng In Issue was not for the purpose of dISCUSSIng a matter whIch may result In dIscIplIne, but was for the purpose of delIvenng management's decIsIOn to termInate the gnevor There was a umon representatIve present as dIrected by management. Board's counsel submItted that thIS was In accordance wIth the partIes' practIce Where there IS no zone representatIve avaIlable, whIch was Mr Sousa, the Umon has dIrected the Board to use Ms DaVIS Background I am advIsed by the Umon that the Board termInated the gnevor when It concluded that the gnevor was competIng In body bUIldIng competItIOns when he was on sIck leave or whIle reCeIVIng workers' compensatIOn payments The gnevor receIved a NotIce ofIntended DIscIplIne "NOID" dated Apnl17 2002 The gnevor responded wIth an undated wntten statement, whIch was marked receIved by the Board on Apnl 22, 2002 The Board held a meetIng wIth the gnevor and hIS umon representatIve Joe Sousa on or about Apnl24 2002 The gnevor provIded a further wntten response dated Apnl 29 2002 The Board held a further meetIng wIth the gnevor and hIS umon representatIve Joe Sousa on May 3 2002 The Umon states that the eVIdence wIll show that the Board asked the gnevor to provIde medIcal confirmatIOn that 3 hIS doctor had cleared the gnevor to partIcIpate In body bUIldIng events The Umon states that the Umon' s eVIdence wIll be that the gnevor was asked to report to the front office on May 13 2002, and that he was not gIven advance notIce of the purpose of the meetIng nor that he had the nght to have umon representatIOn at thIS meetIng. The Umon states that the eVIdence wIll be that the Board dIrected a umon steward, Ms Demse DaVIS to attend the May 13 2002 meetIng, whIch she dId. Although Ms DaVIS and the gnevor asked that the meetIng be postponed In order that Mr Sousa represent hIm, the request was demed and the meetIng contInued and the gnevor was questIOned. Mr Sousa was off work on May 13 2002 on a pre-approved vacatIOn day The Umon' s eVIdence wIll be that the gnevor stayed for a whIle, answered some questIOns, was upset and left the meetIng despIte the Board askIng hIm to SIt down and to stay The Board stated that the Board's eVIdence wIll be that the Board became aware that the gnevor was partIcIpatIng In body bUIldIng competItIOns at both the NatIOnal and North Amencan level, at tImes when he was off work due to back InJury or from other physIcal InJunes that prevented hIm from performIng hIS regular dutIes or even modIfied work. Based on thIS InfOrmatIOn, the NOm was Issued on Apnl17 2002 Based on the gnevor's response that he dId not understand the allegatIOns, a meetIng was held on Apnl 24 2002 wIth the gnevor and hIS umon representatIve It wIll be the Board's eVIdence that at the meetIng the gnevor demed partIcIpatIng In the competItIOns, but subsequently admItted to dOIng so but wIth hIS doctor's approval The Board agaIn met on May 3 2002 wIth the gnevor and hIS umon representatIve The Board stated that ItS eVIdence wIll be that the gnevor stated that hIS doctor had gIven hIm approval to compete Further when he has InJunes he does not do any traInIng, but relIes on "good genes" and on nutntIOn. When he was asked at the meetIng to obtaIn medIcal venficatIOn, he refused to do so after he had asked hIS representatIve If he was reqUIred to do so It wIll be the Board's eVIdence that the Board dId not receIve any InformatIOn from the gnevor and that management's InVestIgatIOn revealed that It was not pOSSIble to rank In the top ten relYIng on good genes and nutntIOn, management decIded to termInate the gnevor The decIsIOn was made on eIther May 9 2002 or May 10 2002 The letter was drafted on May 13 2002 The gnevor was then called to the front office and the umon representatIve was present. The Board's eVIdence wIll be that when Ms DaVIS advIsed the Board that she was not prepared to represent the gnevor as she dId nor know the facts, the management left the room In order that the gnevor could speak to hIS representatIve On management's return, Ms DavIs advIsed the Board that the gnevor wIshed to provIde a doctor's note They were advIsed that that was not the purpose of the meetIng. It wIll be the Board's eVIdence that the gnevor dId get up from the table and begIn to leave and would not return as asked by management. He left the room. WhIle leavIng he was asked for hIS current address and then management left the area. When Ms DaVIS came to the Human Resources office, she was advIsed that the decIsIOn to termInate had already been made and the letter whIch had been prepared and SIgned, would be changed to show that It would be hand delIvered. The facts of the May 13 2002 meetIng are In dIspute between the partIes 4 It was the Board's posItIOn that there IS no reqUIrement to Issue an Nom or to have pre- dIscIplInary meetIngs, although It IS generally but not always, the practIce to Issue a NOID and to have meetIngs to dISCUSS the contents Board's counsel further submItted that the meetIng on May 13 2002 does not fall wIthIn the ambIt of artIcle 26 3 The decIsIOn to termInate had already been made and It was not a meetIng to collect any InformatIOn from the gnevor or to ask hIm any questIOns It wIll be the Board's eVIdence that the practIce IS, that when a person IS termInated, the Board wIll choose the UnIon representatIve to be present at the termInatIOn. It IS the Board's posItIOn that the partIes have already agreed that the procedure as followed does not vIOlate artIcle 26 3 It IS the Board's posItIOn that artIcle 26 3 IS applIcable only to meetIngs, whIch may result In dIscIplIne AlternatIvely It IS the Board's posItIOn that there was no meetIng, as the gnevor left the room. AlternatIvely If It were found that the meetIng of May 13 2002 was a meetIng that fell wIthIn the confines of artIcle 26 3 by means of the NOID the gnevor had advance notIce of the nght to umon representatIOn and was aware of the purpose of management's purpose Procedure The Umon wIshed to bnng eVIdence on the practIce Issue only In Reply On the other hand, the Board submItted that It was Incumbent on the Umon to present and prove ItS case, and that the Board was there to defend ItS posItIOn. As I was advIsed that the case law relates only to procedure at the NOm level, It appears from the InfOrmatIOn that I was gIven that the partIes' practIce may very well be an Issue, I advIsed the partIes that the Umon should present ItS case fully In ItS DIrect eXamInatIOns and not leave the Issue of practIce to Reply to the Board's defense In thIS way It wIll allow the Issue to be fully canvassed and wIll prevent splIttIng the case If the Umon chooses not to bnng eVIdence on practIce as part of ItS case, and the Board does so as ItS defense, the Umon can of course respond In ItS Reply but I wIll allow the Board the nght to respond In Reply on thIS Issue Production On the Issue of productIOn, the Board's counsel was seekIng 1 the ongInal notes relatIng to the meetIng of May 13 2002, and the ongInal doctor's note 2 all documentatIOn relatIng to any traInIng gIven to umon representatIves on theIr roles In meetIngs on how the collectIve agreement IS to be applIed, and InformatIOn whether the umon representatIves have to attend wIth employees where there IS an alleged vIOlatIOn of the collectIve agreement, IncludIng all matenal handed to the umon representatIves at theIr annual meetIngs, theIr polIcIes and gUIdelInes, 5 3 productIOn of notes of the gnevor and hIS representatIve Joe Sousa, on the meetIngs of Apnl 24 2002 and May 3 2002 4 InfOrmatIOn on the gnevor's receIpt of Employment Insurance for the purpose of mItIgatIOn. Board's counsel submItted that thIS IS not a fishIng expedItIOn. Board's counsel argued that the Umon had advIsed the Board that where Mr Sousa was not avaIlable, the Board was to call Ms DaVIS In support of thIS assertIOn, the Board was seekIng the traInIng and InfOrmatIOn gIven to the umon stewards and the zone representatIves on when they were to attend meetIngs, and what role they were to play The Board argues that the request for InformatIOn for all traInIng manuals, polIcIes and gUIdelInes, relates to the past practIce of the Board and the Umon on the InterpretatIOn and applIcatIOn of artIcle 26 3 Board's counsel submItted that It was sImIlar to the requests made by the Umon of the Board's practIces or gUIdelInes The request goes to the Issue of tImelIness and the practIce of the partIes Board counsel also submItted that the traInIng manuals also went to the roles that umon representatIves were to assume In meetIngs The Board understood that the Umon had an annual meetIng and traInIng matenal was handed out at that meetIng. The Umon agreed to the productIOn of the ongInal notes of the umon representatIve and the gnevor as requested, and the ongInal doctor's note The Umon obJected to produCIng the traInIng manuals as not beIng relevant. Umon's counsel was unaware If such matenals eXIsted, but submItted that even If the matenals dId eXIst that they were pnvIleged, as the Umon must be able to pnvately traIn and consult wIth theIr representatIves as they see fit. They were dIfferent from Employer Manuals and GUIdelInes whIch are publIshed In Employer Manuals, a copy of whIch are then gIven to the Umon wIth contInuous updates They are avaIlable to the Umon and ItS members Umon counsel submItted that the documents sought were analogous to traInIng manuals, whIch are provIded to the human resource personnel, whIch are confidentIal and are not provIded to the Umon. The Umon asked the Board to bnng the gnevor's personnel file to the next day of heanng. The Board had no dIfficulty wIth thIS request. The Umon submItted that wIth respect to any Issue surroundIng the Board's obJectIOn that the Umon' s claim that artIcle 26 3 had been breached was untImely the Umon was concedIng that compensatIOn would flow from September 3 2002, the date whIch the Umon gave notIce to the Board that It was makIng such a claim The Umon obJected to produCIng the InformatIOn on the Employment Insurance receIved as beIng premature Umon counsel submItted that It IS a waste of tIme at thIS Juncture, as I am seIsed wIth the Issue of compensatIOn. 6 After heanng the bnef submIssIOns on the Issue of productIOn by the partIes, I made the folloWIng Order that 1 each party provIde the other partIculars on ItS VIew of ItS practIce In order that each party wIll know the Issues that they have to meet; 2 the partIes exchange notes on the meetIngs, and provIde the other party the ongInals, 3 the Umon provIde the ongInal of the doctor's notes eIther at the end of the day's heanng on October 16 2002 or when the partIes meet to produce the ongInal notes At thIS tIme I do not see the relevance for the productIOn of traInIng manuals In general on the roles that umon representatIves should take at meetIngs, or at meetIngs that may result In dIscIplIne The matter of traInIng manuals mIght relate to the expertIse of the representatIves, but does not provIde eVIdence on how they represented themselves to the Board. Therefore I declIne to make thIS Order The Issue as I see It IS the practIce as constItuted by conduct that goes to the InterpretatIOn of the collectIve agreement. However I am reservIng my decIsIOn on the productIOn of any polIcy gUIdelInes or manuals relatIng to the InterpretatIOn of artIcle 26 3 to such tIme as It becomes an Issue ansIng from the presentatIOn of the Umon's case I wIll then leave It to the partIes to argue theIr posItIOn at that tIme FInally I am not makIng an order for productIOn of the eVIdence relatIng to the gnevor's receIpt of Employment Insurance at thIS tIme The Issue of mItIgatIOn IS relevant should the Umon be successful, as the gnevor has an oblIgatIOn to mItIgate hIS damages As I am seIsed on the Issue of compensatIOn, thIS Issue can be raised agaIn If It IS necessary should the Umon be successful Nevertheless I do encourage counsel to dISCUSS settlement of the Issues before them when they meet to exchange productIOns, and that as a part of those dIscussIOns, the Umon should be prepared to provIde the Board wIth the total Employment Insurance receIved and documentatIOn as reqUIred. Dated at Toronto thIS 29th day of October 2002