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HomeMy WebLinkAbout2002-2915.Shannon.05-08-15 Decision Crown Employees Commission de ~~ Grievance Settlement reglement des griefs Board des employes de la Couronne ~-,... Suite 600 Bureau 600 Ontario 180 Dundas Sl. West 180 rue Dundas Ouest Toronto Ontario M5G 1Z8 Toronto (Ontario) M5G 1Z8 Tel. (416) 326-1388 Tel. (416) 326-1388 Fax (416) 326-1396 Telec. (416) 326-1396 GSB# 2002-2915 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN ProfesslOnal EngIneers Government of Ontano (Shannon) Association - and - The Crown In RIght of Ontano (Mimstry of the EnvIronment) Employer BEFORE Bram HerlIch Vice-Chair FOR THE Larry RobbIns ASSOCIA TION Labour Consultant FOR THE EMPLOYER Chnstopher Jodhan Counsel Management Board Secretanat HEARING May 21 June 19 October 22, November 18 & 21 2003 January 29 February 4 Apnl7 & 13 May 5 6 & 31 October 6 & 7 2004 January 10 & 18 February 2, 2005 2 DeCISIon Background Robert Shannon (the "gnevor") commenced hIS employment wIth the Mimstry In October 1990 as a Dlstnct EngIneer In the Niagara Dlstnct Office In St. Cathannes He maIntaIned that posltlOn untIl hIS dIscharge on October 18 2002 The resultIng gnevance IS the subject of the Instant proceedIngs No ObjectlOn was raised to my authonty and jUnSdlctlOn to hear and determIne thIS matter The umon dId argue, however among other thIngs, that the gnevance ought to be allowed and the dIscharge set aSIde on the basIs of the delay In ItS ImposltlOn. The alleged mIsconduct whIch resulted In the termInatlOn occurred In early March 2002 The gnevor was not dIscharged, however untIl more than 7 months after the Impugned conduct. The umon was content, however to argue thIS Issue "at the end of the day" and It wIll be addressed later In thIS declslOn. The conduct (to be descnbed In greater detaIl shortly) whIch resulted In the termInatlOn related to certaIn "work" I e certaIn commumcatlOns the gnevor had, In respect of a partIcular Mimstry file, referred to as the "Campden project" (it, too wIll be descnbed In greater detaIl below) The employer asserts that the gnevor had been explIcItly Instructed not to work on thIS file an assertlOn whIch IS specIfically demed by the umon. The employer granted that the gnevor' s mIsconduct may well have been InSUfficIent, In and of Itself, to necessItate hIS dIscharge However In effectIng the termInatlOn and In supportIng It before me, the employer relIed on the gnevor's dIscIplInary record to assert that the tnggenng events constItuted a culmInatIng IncIdent thereby warrantIng the dIscharge In the alternatIve, the employer submItted that, even If termInatlOn were found to be an exceSSIve penalty the gnevor's cumulatIve conduct has so Irreparably damaged the employment relatlOnshlp as to render reInstatement entIrely InadvIsable It asks, In that event, that I exerCIse my authonty to fashlOn a remedy whIch excludes reInstatement. 3 For Its part, the umon, as already IndIcated, argued that the gnevance ought to be allowed on the basIs of the employer's delay In effectIng the dIscharge In the event I was prepared to otherwIse assess the dIscharge on ItS ments, the umon took the employer's conceSSlOn one step further not only dId the gnevor's conduct not warrant dIscharge, It dIsclosed no basIs whatsoever for the ImposltlOn of any dIscIplIne FInally In the event I were persuaded that the conduct was culpable, the penalty of dIscharge, even consldenng the gnevor's dIscIplInary record, was too harsh. In thIS latter connectlOn the umon strenuously resIsted the employer's urgIngs that a remedy ought to be fashlOned whIch precluded the gnevor's reInstatement. The heanng In thIS matter consumed some 17 days over a penod approachIng two years In ItS duratlOn. The partIes escorted us through eVIdentIary terraIn far broader than absolutely reqUIred for the purposes of my delIberatlOns The partIes' representatIves are not to be cntlclzed - and I do not do so or Intend to do so - on the contrary they conducted themselves wIth dlgmty and professlOnalIsm throughout the proceedIngs It IS, however unfortunate for all concerned, that so much tIme has elapsed whIle thIS matter has remaIned outstandIng The cautlOus approach of the advocate Intent on Insunng that all eVIdence of any potentIal relevance IS put before an adjudIcatIve tnbunalls not an unfamIlIar one And whIle It may not be fully reflected In thIS award, I too have taken the tIme reqUIred to Insure a thorough reVIew of all of the eVIdence, the volumInous matenals and the abundant case law that was placed before me In an effort to recount the salIent facts In a more or less chronologIcal fashlOn and to Isolate those areas where the eVIdence was dIsputed, I shall begIn by descnbIng three maIn factual areas the gnevor's dIscIplInary record, the Campden project; and the events gIVIng nse to the gnevor's termInatlOn. For reasons whIch wIll become apparent, however I wIll Interrupt thIS factual accountIng wIth a conslderatlOn of the umon's submlsslOn that the dIscharge ought to be set aSIde because of the delay In ItS ImplementatlOn. With respect to the two former factual areas, there IS lIttle, If any relevant factual dIspute between the partIes The same IS not true of the thIrd. 4 The grievor's disciplinary record Among other thIngs, a reVIew of the gnevor's dIscIplInary record IndIcates that delay In bnngIng finalIty to dIscIplInary matters IS not the exclusIve purvIew of the partIes' representatIves or of thIS Board. It IS, unfortunately apparently not a stranger to these partIes In theIr collectIve agreement admInlstratlOn. Apart from those whIch precIpItated the dIscharge all of the events whIch resulted In dIscIplInary consequences for the gnevor took place In 2000 the most recent of whIch occurred some 2 years pnor to the gnevor's dIscharge There are 5 Items on the gnevor's dIscIplInary file 1 The first Item I was pOInted to was a "letter of counsel" regardIng an Inappropnate loud outburst and confrontatlOnal behavlOur The letter IS dated February 28 2000 and relates to an IncIdent whIch transpIred earlIer that month. I note, however that, on ItS face, thIS letter IS not dIscIplInary and was not really relIed upon as such by the employer (Indeed, the partIes agreed that, although the letter was to be marked as an exhIbIt, It was not to be taken as proof of ItS contents) The employer dId rely on thIS letter for the purposes of ItS alternatIve argument agaInst reInstatement but It IS, despIte my alluslOn to It here, not properly part of the gnevor's dIscIplInary record. 2 The next relevant event, whIch dId result In the ImposltlOn of dIscIplIne, took place on June 12,2000 The gnevor served a FIeld Order despIte pnor InstructlOns that he was not to engage In such actIvIty For reasons whIch were not fully explaIned (although I do note that the gnevor's absence on sIck leave for the first SIX months of 200 1 appears to have factored In to the delay) dIscIplIne was not Imposed untIl July 10 2001 when the gnevor was assessed a 10-day suspenslOn wIthout pay A gnevance was filed, however and, ultImately a settlement, dated January 7 2002, was arrIved at whereby the suspenSlOn was reduced to a wntten warmng dated January 28 2002 The settlement and the resultIng letter IndIcated that thIS dIscIplInary notatlOn was to remaIn on the gnevor's file 5 untIl July 7 2003 (a penod whIch I note whether In relatlOn to the date of the ongInal or revIsed letter constItutes a reductlOn In the 3 year penod contemplated by ArtIcle 17 3.2 of the collectIve agreement) 3 A further IncIdent transpIred In August 2000 The record dIscloses that the gnevor attended a meetIng In Ottawa purportedly as a representatIve of the Mimstry despIte pnor InstructlOn that he was not permItted to do so ThIS resulted In the tImely ImposltlOn of a letter of repnmand dated August 29 2000 No gnevance was filed. Although thIS precIpItatIng event followed the one referred to In the prevlOUS paragraph, closure on thIS dIscIplInary matter was achIeved some 17 months pnor to the resolutlOn of the earlIer event. 4 The next event whIch resulted In dIscIplIne occurred on or about September 19 2000 The record dIscloses that the gnevor was dIscIplIned as a result of aggressIve behavlOur and InsubordInatlOn demonstrated to hIS then supervIsor Dr Denms Corr Imtlally on July 10 2001 the employer Imposed a 15-day suspenslOn In relatlOn to thIS mIsconduct. A gnevance was filed, however and, by vIrtue of a settlement dated January 7 2002 (the same settlement referred to earlIer -It resolved two separate gnevances) the 15-day suspenSlOn was reduced to 3 days An amended letter of dIscIplIne was Issued on January 22,2002 The settlement and the resultIng letter IndIcated that thIS dIscIplInary notatlOn was to remaIn on the gnevor's file untIl January 7 2004 (a penod whIch, as In relatlOn to the other gnevance settled at the same tIme, constItutes a reductlOn In the 3 year penod contemplated by ArtIcle 173.2 of the collectIve agreement) 5 The final dIscIplInary event on file IS a one-day suspenslOn Imposed on or about December 21 2000 The gnevor faIled to provIde hIS then supervIsor Dr Corr wIth an up to date lIst of current projects and other InfOrmatlOn as he had been Instructed to do No gnevance was filed In relatlOn to thIS dISCIplIne 6 Although not part of the dIscIplInary record, I note the partIes' agreement to certaIn other facts whIch may suggest somethIng about the gnevor's desIre or abIlIty to polItely accept any subjugatlOn to managenal authonty Shortly after reCeIVIng the letter of repnmand descnbed In Item #3 above, the gnevor although no gnevance was ever filed, sent an e-maIl to Kal Hamff, the DIrector of the West Central ReglOn of the Mimstry The e-maIl was cntlcal of the dIscIplIne he had receIved and was copIed not only to numerous Mimstry officIals, but also to the PremIer (No dIscIplIne was Imposed on the gnevor In respect of these commumcatlOns ) Shortly after reCeIVIng the one-day suspenSlOn descnbed In Item #5 above, the gnevor made allegatlOns agaInst Denms Corr filed a complaInt and Imtlated proceedIngs under the WDHP polIcy The WDHP InVestIgator's report concluded that the allegatlOn had not been substantIated. And finally shortly after the partIes had entered Into the settlement dated January 7 2002 (dISpOSIng of Items # 2 and # 4 set out above) the gnevor wrote a letter to the Mimster of the EnvIronment whIch was cntlcal of both Mr Hamff and Dr Corr (No dIscIplIne was Imposed on the gnevor In respect of these commumcatlOns ) It may be useful, for further reference, to VIew the gnevor's record In more summary and graphIc terms From the perspectIve of the date of ImposltlOn (or resolutlOn of the ImposltlOn) of dIscIplIne the gnevor's record, ImmedIately pnor to hIS dIscharge, can be vIewed as follows Ultimate date of imposition of discipline Discipline imposed August 28 2000 letter of repnmand December 21 2000 one-day suspenSlOn January 25 2002 3 -day suspenSlOn January 28 2000 wntten warnIng 7 It wIll be at least equally useful to VIew the gnevor's dIscIplInary record In relatlOn to the date of the mIsconduct and the resultIng dIscIplIne That approach YIelds the folloWIng Date of misconduct Discipline imposed June 12,2000 wntten warmng August 4 2000 letter of repnmand September 19 2000 3 -day suspenSlOn December 8 2002 one-day suspenSlOn It IS perhaps worth recallIng that the gnevor was dIscharged In October of 2002 (albeIt for conduct In March of that year) His most recent culpable conduct pnor to the events gIVIng nse to the dIscharge was In December 2000 Thus - but of course, for the events gIVIng nse to the dIscharge - the gnevor had no dIscIplInary events on hIS file for a penod In excess of 22 months leadIng up to the dIscharge (although thIS penod Included a penod of sIck leave of some 6 months duratlOn) DependIng perhaps on whIch of the above charts IS to be preferred, the gnevor's most recent pnor dIscIplIne at the tIme of hIS dIscharge was eIther a wntten warmng or a one-day suspenSlOn. The Campden project Although we wIll examIne the events In greater detaIl below the conduct whIch gave nse to the gnevor's dIscharge was hIS (admItted) "work" done In relatlOn to the Campden project despIte havIng been specIfically Instructed to refraIn from dOIng any such work on that project. The eXIstence and extent of any such prohibltlOn IS a sIgmficant area of factual dIspute between the partIes 8 Many of the wItnesses touched on vanous aspects of the hIstOry and progress of the Campden project. LIttle of that eVIdence was controversIal and I do not Intend to provIde a detaIled accountIng of the genesIs and development of the project. I wIll, however based largely on the eVIdence of RICh Vickers, who has been the Area SupervIsor for the Niagara Dlstnct Office of the Mimstry In St. Cathannes from 1998 to the heanng In thIS matter sketch out the broad outlInes of the proJ ect. Concern about the Campden area predated Mr Vickers' arrIval In the St. Cathannes office Over a penod of decades, vanous consultants' studIes prepared for the Town of LIncoln consIstently IdentIfied problems wIth contamInated ground water and a faIlIng sceptIc system In the hamlet of Campden. A samtary survey undertaken by publIc health authontles In 1988 concluded that a maJonty of the eXIstIng sIngle lot resIdentIal sceptIc systems In Campden were faIlIng and caUSIng "breakouts" Vanous optlOns to remedy the dIfficultIes were canvassed, at least one of whIch (referred to as the "lagoon quarry") was, In or around 1998 even the subJ ect of an envIronmental assessment. The ReglOnal MumclpalIty of Niagara (hereInafter the "ReglOn") whIch, along wIth the Town of LIncoln (hereInafter the "Town") would bear the pnmary responsIbIlIty for any remedIal project, ultImately opted, however not to pursue that partIcular optlOn (whIch Involved a publIc-pnvate partnershIp) There IS also no dIspute that, around that same tIme, the gnevor had some Involvement wIth the Campden file Indeed, In October 1998 the gnevor prepared two vIrtually IdentIcally worded NotIces of Proposed FIeld Order - one was served on the Town, the other on the ReglOn. These documents were Issued and served pursuant to the terms of the Ontario Water Resources Act (the "OWRA") The documents notIfy the recIpIents of the Mimstry's IntentlOn to formally Issue a FIeld Order dIrectIng complIance wIth the OWRA. These partIcular notIces eVIdenced an IntentlOn to dIrect the Town and the ReglOn to obtaIn the necessary approvals for and to Install and operate the necessary control eqUIpment. The proposed orders were Issued as a result of the gnevor's observatlOns on a sIte VISIt and hIS resultIng concerns whIch were enumerated In the FIeld ObservatlOn Report appended to the NotIces 9 WhIle thIS mIght otherwIse be vIewed as a sIgmficant step It also appears that the gnevor's proposed orders were never actually Issued. Indeed, Mr Vickers, dunng hIS testImony was not the least reluctant to express hIS dIsapproval of the NotIces havIng been Issued at all The precIse nature of hIS concerns appear to have been twofold he dId not agree, strategIcally WIth the tImIng of the move, thInkIng It to be premature and preferrIng perhaps to contInue to work to develop consensus among the stakeholders rather than elevatIng matters to the level of confrontatlOn assocIated wIth the Issuance of the NotIces But Mr Vickers appeared at least as equally troubled by certaIn process concerns He was not consulted (and felt he ought to have been) pnor to the Issuance of the NotIces He also expenenced some concern about who (i e he or the gnevor) was responsIble for the file and took that up wIth the then Dlstnct Manager That concern does not appear to have been addressed at the tIme Whatever the ments ofMr Vickers' concerns, It should be noted that he was not (then or subsequently) the gnevor's supervIsor and, In any event, there was no suggestlOn by anyone that the gnevor's conduct In ISSUIng the NotIces eIther warranted or resulted In any dIscIplInary response GIven the descnptlOn by Mr Vickers of the Campden Issue spanmng decades, IdentIfYIng the gnevor's NotIces as the start of our chronology IS clearly somewhat selectIve and arbItrary SImIlarly It IS not necessary to detaIl all of the events whIch followed those NotIces Suffice It to say that an extremely complIcated and protracted process unfolded InvolvIng not only the Mimstry but also multIple polItIcIans from vanous JunsdlctlOns (includIng some at the very hIghest of levels) and bureaucrats and other regulatory bodIes (e g. the Niagara Escarpment CommlsslOn) The ultImate proJect bore a pnce tag In the range of three mIllIon dollars FundIng and the apportlOnment of that cost among vanous polItIcal levels was an ongOIng Issue And gIven the senous health concerns that were emergIng (at one pOInt the MedIcal Officer of Health expressed an OpInlOn In wntIng warmng of the possIbIlIty of outbreaks of dIsease) It IS not the least surpnSIng that Issues related to the matter caught the attentlOn of local medIa from tIme to tIme To bnng the chronology rapIdly forward and to agaIn pIck a somewhat arbItrary pOInt, thIngs appear at least from the pOInt of VIew of the Mimstry to have come to a head In early 2001 Both the Town and the ReglOn had fairly consIstently IndIcated theIr commItment, in 10 principle to undertakIng the necessary constructlOn subject to their ability to pay Some provIncIal sources had been tapped early In the process to provIde fundIng In the range of 10% of the antIcIpated proJect cost. But the local authontles determIned that much more support was needed. They were consequently purSUIng funds from the Ontano Super BuIld CorporatlOn, an entIty whIch provIded JOInt federal provIncIal grants, In thIS case through ItS Ontano Small Town and Rural Development (OSTAR) component. No such fundIng had yet been secured Thus, to gIve only a flavour of how the vanous forces may have been alIgned, or even deadlocked, at the tIme, one can ImagIne three of the pnmary sets of players the Mimstry preSSIng the Town and ReglOn to undertake a remedIal proJect wIthout (yet) actually ISSUIng any element of compulslOn (through fresh NotIces or actual Orders) the local officIals WIshIng to resolve the Issue and fix the problem but paralyzed by the magmtude of a three mIllIon dollar pnce tag; and the fundIng authontles consldenng a sIgmficant applIcatlOn from local authontles who faced no legal oblIgatlOn or compulslOn to proceed wIth the proJect. By way of elaboratlOn, one can consIder a letter dated March 1 2001 from John KukalIs, the Town's DIrector of PublIc Works addressed to Paul NieweglowskI (Mr Vickers' and, ultImately the gnevor's supervIsor) the Mimstry's Dlstnct Manager Mr NieweglowskI had recently wntten to the Town askIng that they provIde "a constructlOn schedule and councIl resolutlOn for the commItment of funds for the InstallatlOn of your mumclpalIty's approved works by March 5 2001 "Mr KukalIk's March 1 2001 reply IndIcated that the Town CouncIl had taken the posltlOn that It was ready to proceed wIth the proJect, subJect to confirmatlOn of sIgmficant OST AR fundIng. OWIng, however to that and other uncertaIntIes, Mr KukalIs IndIcated that the Town was unable to provIde a constructlOn schedule at that tIme WhIle It IS not partIcularly cntlcal for our purposes, that response may well have provIded the Impetus for the Mimstry to move to break the lOgJam. WithIn approxImately one week of that response Mr NieweglowskIlssued a NotIce of Proposed Order under the OWRA. The Order became final on Apnl10 2001 and dIrected the Town to take the necessary steps to establIsh and operate the samtary sewage collectlOn system sewage works (as approved under the OWRA) IncludIng all ancIllary steps necessary to provIde a safe and relIable dIsposal system for samtary sewage to be establIshed and In operatlOn by October 31 2001 11 And wIth that the proJect commenced In earnest. The completlOn deadlIne of the Mimstry Order was ultImately extended for a further month on the Town's request. However by no later than December 2001 the proJect was essentIally complete and, perhaps more Importantly the new system was In operatlOn. Unfortunately and despIte the completlOn of the proJect, the OSTAR fundIng Imtlally IdentIfied as cntlcal to the success of the proJect had not yet been secured. WhIle that fundIng, to the tune of In excess of two mIllIon dollars, was subsequently secured, that dId not occur untIl January 2002 after the completlOn of the proJect. I do not mean, In thIS unfairly bnefhlstory of the Campden matter to belIttle the tIme energy and effort of the multItude of personages whose Involvement was cntlcal to the ultImate success of the proJect. It was a long and arduous effort. It was a contentlOus and controversIal proJect whIch, for a substantIal penod of tIme, had a hIgh publIc profile (at least In the locally affected areas) However as wIll be seen, the proJect forms the backdrop for the events whIch gave nse to the Instant proceedIngs We wIll return to the "work" the gnevor dId on the Campden proJect subsequent to ItS completlOn later In thIS award. For the moment, It IS sufficIent to note that from about October 1998 (when he Issued the NotIces of Proposed FIeld Order) untIl March 2002 (when he performed the "work" on the proJect whIch ultImately resulted In hIS dIscharge) the gnevor appears to have had no sIgmficant Involvement In the Campden file, whIch was then clearly under the pnnclpal carnage ofMr Vickers (and, at least latterly In the penod, subJect to the supervlslOn ofMr NieweglowskI) Delay in the imposition of discipline I turn now to consIder the umon's argument that the gnevance ought to be allowed or that the gnevor's dIscharge ought to be vIewed as vOId ab ImtlO because of the employer's delay of some seven months In effectIng It. 12 Generally speakIng, the facts necessary to consIder In determInIng thIS Issue are uncontroverted. The gnevor's Impugned conduct took place In March 2002 he was dIscharged In October of that year The gnevor's conduct, however dId not come to the employer's dIrect attentlOn untIl shortly before the dIscharge was effected. Dunng August and September 2002, there was emaIl correspondence between the gnevor and hIS supervIsor Mr NieweglowskI The latter had requested a lIst of proJects the gnevor had worked on In the prevlOUS year The request was made for the purposes of facIlItatIng the gnevor's performance evaluatlOn - necessary among other thIngs, for purposes of establIshIng entItlement to "pay for performance" wage Increases The gnevor ultImately complIed wIth the request, somewhat IndIrectly by provIdIng Mr NieweglowskI wIth a copy of a computer pnntout from the "STAR" system used to track work beIng done on vanous Mimstry proJects The data entered In that program wIth respect to the gnevor's actIvItIes was hIS own responsIbIlIty to enter Upon reCeIVIng and reVIeWIng the contents of the pnntout, Mr NieweglowskI notIced some entnes whIch aroused hIS cunoslty At a meetIng held to dISCUSS the matter the gnevor volunteered that the work In questlOn had been done In relatlOn to the Campden proJect. There IS some Irony whIch the umon relIes upon to some extent, In the manner In whIch thIS InformatlOn came to the employer's attentlOn. It would appear that the employer was remISS In ItS oblIgatlOn to complete ItS performance evaluatlOn of the gnevor As early as February 2002, the gnevor had emaIled Mr NieweglowskI IndIcatIng that hIS last performance management reVIew had been conducted In September 2000 and sIgnallIng hIS desIre to have hIS 2001 reVIew completed to permIt the proceSSIng of hIS ment Increase It would also appear however that there were some admInIstratIve changes underway wIth respect to the manner and tImIng of these evaluatlOns generally The collectIve agreement, however IS qUIte clear In ItS reqUIrement (in sectlOn A. 7 of Schedule A) that, commenCIng In 2002, annual performance evaluatlOns were to be completed by June 30 Indeed, Mr NieweglowskI had also receIved specIfic wntten InstructlOns addressed to all Human Resource DIrectors from the ActIng DIrector of Management Board Secretanat (dated March 11 2002) adVISIng that performance evaluatlOns for PEGO employees were to be completed by June 30 In other words, the employer's faIlure to complete the gnevor's 13 performance evaluatlOn IndIcates not merely that It was remISS, but suggests that It may well have been In vlOlatlOn of ItS collectIve agreement oblIgatlOns The umon pOInts to these facts to argue that whIle Mr NieweglowskI may not have had actual knowledge of the gnevor' s Impugned conduct untIl September 2002, he should not be permItted to hIde behInd a vlOlatlOn of the collectIve agreement to rely on hIS Ignorance of InfOrmatlOn whIch would have come to hIS attentlOn In a more tImely fashlOn had he complIed wIth the collectIve agreement oblIgatlOns Put somewhat dIfferently the umon argues that the InfOrmatlOn whIch dIsclosed the gnevor's Impugned conduct was avaIlable throughout the penod, In the form of the computer data to whIch the employer had ready access The employer ought to have consulted thIS InformatlOn or effectIvely ought to be deemed to have had the knowledge of ItS contents In support of ItS argument on thIS branch of the case, the umon referred me to the folloWIng cases Re Borough of North York and Canadian Union of Public Employees Local 373 (1979),20 L AC (2d) 289 (SchIff) Re Air Canada and International Association of Machinists and Aerospace Workers Local 148 unreported, September 28 1990 (McCormack) Re Air Canada and Canadian Automobile Workers, Local 2213 (1993),34 L.AC (4th) 13 (FrumkIn) Re University ofOttGyt,a and I U OE. Local 796-B (1994) 42 L.AC (4th) 300 (Bendel) and AFG Industries Ltd And Aluminium Brick Glass Workers Union, (1998) 75 L.AC (4th) 336 (HerlIch) F or ItS part, the employer had a number of responses First, It IS clear that management dId not have actual knowledge of the gnevor's conduct untIl September 2002 In each of the cases relIed upon by the umon, the employer had actual knowledge of the alleged mIsconduct and, notwIthstandIng, delayed In the ImposltlOn of dIscIplIne On that basIs alone, the cases are dIstIngUIshable CertaInly none of those cases were decIded on the basIs of the "ought to have known" or "constructIve knowledge" type of argument beIng advanced by the umon. But even beyond that essentIal factual dIfference, there are other reasons not to gIve effect to the umon' s argument. It IS entIrely speculatIve to suggest that had the gnevor's performance appraisal been done earlIer the gnevor's alleged mIsconduct would have come to lIght sooner Further to gIve effect to the umon' s argument would be tantamount to ImpOSIng an 14 unnecessary and undesIrable level of employer vIgIlance In momtonng the work of employees such as the gnevor That was not and IS not the purpose of the computer records maIntaIned at the workplace FInally the employer submIts, the delay has not worked any preJudIce In CIrcumstances where the partIes agreed to argue thIS Issue "at the end of day" the questlOn of preJudIce IS not an abstract or theoretIcal one All of the eVIdence has been heard and the gnevor had lIttle dIfficulty recallIng (at least hIS verslOn) of events Thus, there can be no claim of preJudIce resultIng - at least wIth respect to the gnevor's abIlIty to advance the gnevance - from the delay In the ImposltlOn of dIscIplIne I have consIdered submlsslOns of the partIes and, for the folloWIng reasons, am not prepared to gIve effect to the umon' s argument. WhIle there may be some vanety In the arbItral VIews expressed about the theoretIcal underpInmngs of ItS applIcatlOn, there IS no questlOn that arbItrators have long embraced the VIew that an employer ought to Impose dIscIplIne In a tImely fashlOn and that faIlIng to do so may render the purported dIscIplIne VOId, or at least vOIdable In cases of thIS sort, arbItrators have consIdered the length of the delay the reasons for the delay and ItS preJudIcIal effect. The substantIal delay In thIS case undoubtedly warrants some explanatlOn. But, equally there IS no Issue that the employer was unaware of the gnevor's Impugned conduct for vIrtually all of the penod of delay WhIle the umon' s assertlOn that the employer ought not to be permItted to hIde behInd ItS own collectIve agreement vlOlatlOn (havIng not completed the gnevor' s performance appraisal wIthIn the stIpulated tIme) IS not wIthout some attractlOn, It IS problematIc for several reasons FIrst, some degree of speculatlOn IS reqUIred to pOSIt that a tImely completlOn of the performance appraisal would have resulted In a (more) tImely ImposltlOn of dIscIplIne But even were I InclIned to engage In the reqUIsIte speculatlOn, It IS not clear precIsely where It leads - had the performance appraisal been completed, as reqUIred under the collectIve agreement, by June 30 15 and had It legItImately taken untIl then for the gnevor's conduct to have come to the attentlOn of the employer the resultIng dIscIplIne would have been Imposed some four months after the events - ItS tImelIness but a relatIve concept. More Importantly perhaps, there are certaIn demands of symmetry operatIve here The gnevance I am dealIng wIth Involves the gnevor's termInatlOn - not the employer's faIlure to complete a performance appraisal In a tImely fashlOn. No gnevance raisIng the latter Issue has been called to my attentlOn. One can only speculate as to how events mIght have unfolded (and whether the ImposltlOn of dIscIplIne mIght have been effected In a more tImely manner) had such a gnevance been filed. But If the employer ought not to be permItted to hIde behInd an apparent breach of the collectIve agreement, then perhaps equally the umon ought not to be able to profit from ItS own faIlure to file a gnevance (whIch, If the umon's maIn argument IS accepted would have brought the gnevor's conduct to the employer's attentlOn) In order to argue that the employer delayed In ImpOSIng the dIscIplIne I also accept Mr NieweglowskI's uncontradIcted eVIdence about the functlOn of the STAR computer data system WhIle It does have that capacIty It was not desIgned and neIther has It been used In hIS office as a tool for momtonng the performance of IndIVIdual employees I am certaInly reluctant to Impose the unnecessary and undesIrable level of employer vIgIlance through computer based momtonng, that the umon' s urgIngs at least ImplIcItly dIctate FInally there IS the Issue of preJudIce There may be cases where the very length of the delay wIll gIve nse to the presumptlOn of resultIng preJudIce But as the employer argued, the questlOn of resultIng preJudIce In thIS case need not be presumed or otherwIse be the subJ ect of speculatlOn. Rather the resultIng preJudIce If any can be assessed on the basIs of the manner In whIch the umon was capable of puttIng In ItS case before me And In that regard, I accept the employer's submlsslOns as largely though not entIrely accurate For It IS true that, generally speakIng, the gnevor rarely protested, whIle gIVIng hIS eVIdence, that he was unable to recall specIfic matenal events CertaInly thIS IS true In relatlOn to the "work" that the gnevor performed - thIS was never really the subJect of dIspute It IS, however less true In relatlOn to some of the finer detaIls and In partIcular In some of the areas where there may be some dIfficulty reconcIlIng the gnevor's eVIdence wIth that of employer wItnesses I wIll have more to say shortly about the manner In whIch the gnevor gave hIS eVIdence But, In the maIn, I am satIsfied that, to the 16 lImIted extent that the employer's delay In ImpOSIng the dIscIplIne on the gnevor may have preJudIced the umon' s abIlIty to present ItS case, I am able to and shall remedy such preJudIce In a manner short of sImply allowIng the gnevance on the basIs of delay SubJect to the folloWIng pOInts, whIch emerge from my conslderatlOn of the delay Issue and lead to the final chapter In the chronologIcal narratIve recently Interrupted, the umon' s motlOn that the gnevance be allowed, that the dIscharge be vIewed as vOId or vOIdable on the basIs of delay IS hereby dIsmIssed. I have already IndIcated that there IS no real dIspute about the work the gnevor dId to arouse the employer's wrath (I wIll shortly detaIl It) There IS much more controversy about the manner In whIch he dId the work - more specIfically whether and to what extent the gnevor effectIvely commumcated wIth management at the tIme - eIther to seek authonzatlOn or at a mlmmum, to advIse that he was dOIng the work. The often contradIctory eVIdence In thIS regard comes from 2 wItnesses the gnevor and Mr Vickers It IS clear that they had at least one relevant conversatlOn although It IS dIfficult to reconcIle the conflIctIng eVIdence regardIng preCIse detaIls No one InqUIred of eIther of the two wItnesses or asked them to detaIl the contents of thIS (or these) conversatlOn(s) untIl 6-7 months after they took place The conversatlOn(s) were bnef and Informal NeIther the gnevor nor Mr Vickers would have been lIkely to attach any partIcular cntlcal sIgmficance to them at the tIme In those CIrcumstances and when asked to recall them for the first tIme 6-7 months later (and before me years later) I would not expect eIther of the gentlemen to exhIbIt perfect recall In thIS context, I wIll, however to the extent It IS necessary or where I am otherwIse unable to reconcIle conflIctIng eVIdence, grant the gnevor the benefit of the doubt so as to Insure that he suffers no unwarranted preJudIce from the delay In bnngIng the apparent sIgmficance of what would have been perceIved as relatIvely mundane events to hIS attentlOn. I wIll take a sImIlar approach to some of the conflIcts of eVIdence between the gnevor on the one hand, and Mr NieweglowskI and Dr Corr on the other In relatlOn to managenal InstructlOns regardIng the Campden proJect. Before returmng to the chronology the final pOInt whIch emerges from the facts surroundIng the delay Issue also relates to the gnevor's conduct. It IS abundantly clear that, at 17 least wIth respect to the work he dId, the gnevor made no real effort to conceal hIS actIvItIes - all of the relevant documents were found In the file where he had placed them, hIS STAR entnes reflected the work done and when asked for detaIls he unhesItatIngly volunteered that the work he had done related to the Campden proJect. His conduct was neIther surreptltlOus nor as we shall see, nefanous The culminating incident What the gnevor IS alleged to have done IS far eaSIer to descnbe - It IS essentIally undIsputed - than the specIfic manner In whIch he IS alleged to have accomplIshed It. I wIll, however take a moment to descnbe, In more general terms, the qualIty of the VIva voce eVIdence placed before me I should IndIcate at the outset that wIth few If any sIgmficant exceptlOns, I do not belIeve that anyone who testIfied In these proceedIngs delIberately proffered false and mIsleadIng eVIdence before thIS Board. Generally speakIng, I accept that all of the wItnesses truly belIeved they were testIfYIng truthfully There were, however many pOInts - most much less sIgmficant than a lImIted few - where It IS exceedIngly dIfficult to reconcIle competIng verSlOns of sImIlar events I am satIsfied that nothIng more complIcated than the sImple passage of tIme combIned wIth the Inherent human dIsabIlIty we all share to varyIng degrees - frailty of memory - go much of the dIstance In explaInIng these dIscrepancIes It wIll, of course be recalled that the sIgmficance of (what wIll be seen to be the otherwIse fairly bemgn and pedestnan) central events was not apparent to anyone untIl some 6-7 months after they transpIred. SImIlarly there are other events whIch provIde the context for the central events (i e InstructlOns about the scope of work the gnevor was to perform whIch were said to have been gIven to hIm by more than one supervIsor) whIch were themselves already of consIderable vIntage In thIS context, I have preferred, where possIble, to rely on documentary eVIdence to establIsh at least the basIc factual foundatlOn. My comments about the effect of Imperfect memory selectIve perceptlOn and retentlOn In the context of events whIch were already old at the tIme theIr sIgmficance was first IdentIfied and were consIderably older when the eVIdence was presented to the Board are of general applIcatlOn - not dIrected to any specIfic wItness 18 I am compelled, however to offer some observatlOns about the gnevor and hIS eVIdence, whIch was remarkable In many respects He clearly demonstrated sufficIent Independence to establIsh that he mIght be a dIfficult adversary In any contest of wIlls and that, In a sItuatlOn where there was some need for managenal authonty to be exercIsed or confirmed, he mIght not be the most cooperatIve of partners In such an endeavour Frankly there were frequent occaSlOns when aWaitIng hIS responses to questlOns posed (whether In chIef or In cross-eXamInatlOn) was somethIng akIn to holdIng a lottery tIcket and aWaitIng the draw And qUIte apart from the drama of the antlclpatlOn, the ultImate correspondence between questlOns asked and answers offered frequently resembled the correlatlOn one mIght generally expect between the lottery tIcket and the WInmng numbers Mr Shannon demonstrated absolutely no shyness about ventunng Into areas not the subJect of the questlOn posed, or veenng Into realms that were barely arguably responSIve to the questlOns NeIther dId he shnnk from clearly formulatIng answers whIch he appeared to perceIve would most advance the Interests of hIS case - frequently a poor strategy for any wItness to adopt. More sIgmficant perhaps IS the qualIty of responses offered once the questlOner succeeded In fOCUSIng the gnevor's attentlOn (frequently after several protracted attempts) on the questlOn posed. I have already IndIcated that I do not belIeve any of the wItnesses delIberately mIslead the Board. I can, however pOInt to an example whIch I belIeve tYPIfies the relatlOnshlp between the gnevor's responses and the lIteral truth. The gnevor was off on sIck leave from the begInmng of 200 1 untIl the end of June of that year FolloWIng closely upon hIS return - more specIfically on July 10 2001 - he receIved and ImmedIately served the consecutIve 10 and 15-day suspenslOns Imposed on hIm by hIS then supervIsor Denms Corr It wIll be recalled that these suspenSlOns were levIed In July 2001 In respect of conduct whIch had transpIred In June and September of the prevlOUS year 2000 It wIll also be recalled that although the suspenSlOns were served at the tIme, the partIes' subsequent settlement modIfied the penaltIes of 10 and 15-day suspenSlOns to a wntten warnIng and a 3-day suspenslOn respectIvely 19 Thus, the gnevor returned to work from a lengthy penod of suspenSlOn on August 15 2001 It also appears that It was In thIS penod that a transltlOn took place In the orgamzatlOn of the workplace - Mr NieweglowskI was In the process of becomIng the gnevor's supervIsor The gnevor testIfied that upon hIS return to work from sIck-leave, he was Instructed to SIt In a corner and do nothIng. My ImpresslOn was that he Intended to "credIt" Mr NieweglowskI for thIS state of affairs The latter qUIte understandably In my VIew took umbrage wIth the gnevor's charactenzatlOn of what had occurred. I do not accept the gnevor's portrayal as the lIteral truth. That IS not to say however that It does not capture sIgmficant elements of truth notwIthstandIng ItS presentatlOn through ItS bold and undoubtedly embellIshed Imagery For example, dunng the penod of tIme between the gnevor's return from sIck leave and hIS suspenslOn (slIghtly more than 2 weeks) the STAR record dIscloses vIrtually no actual substantIve work performed by the gnevor wIth the exceptlOn of a sIngular repeated genenc entry for "staff meetIngs" Whether that state of affairs represents Dr Corr's uncertaInty about how to deploy the gnevor folloWIng a lengthy absence or the confuslOn whIch may have attended ShIftIng supervIsory assIgnments IS of no real Interest to me I am satIsfied, however that the gnevor had lIttle work to do dunng thIS penod and was unhappy about that state of affairs As I have IndIcated, these partIcular events are not germane to our InqUIry I pOInt to them only to demonstrate the sometImes cIrcUItous route that mIght lInk the gnevor's eVIdence wIth the truth and the dangers whIch mIght be assocIated wIth acceptIng that eVIdence too lIterally My general ImpreSSlOn, however IS that so long as one had plentIful supplIes of graInS of salt and the facIlIty to dIVIne or Interpret the truth from the gnevor's frequently dIstorted or exaggerated Images of It, the gnevor's eVIdence was a source of legItImate InformatlOn. It IS true, however that whIle the eVIdence of the employer wItnesses dId suffer from some of the Inherent lImltatlOns of memory already dIscussed, It was not generally necessary to perform the same mental gymnastIcs to Interpret that eVIdence It IS In that context and, as IndIcated much earlIer conferrIng the benefit of the doubt upon the gnevor In Instances where the delay concerns are most promInent, that I now turn to a descnptlOn of the relevant events The bnef descnptlOn IS as follows As wIll be recalled the OSTAR fundIng for the Campden proJect was not secured untIl January 2002, well after the constructlOn had been 20 completed and the new sewer system was up and runmng. However despIte the fundIng approval, even by March 2002, none of the promIsed funds had yet found theIr way to the local authontles, whIch were, of course, facIng huge debts In VIew of the already completed constructlOn. On March 5 2002, a local St. Cathannes newspaper The Standard, publIshed an artIcle regardIng the Campden proJect. It bore the headlIne "Mayor wants to end uncertaInty - Red tape holdIng up Campden sewer fundIng" and Included the folloWIng Mayor Ray Konkle told town councIllors Monday mght a letter was receIved from the proVInce statIng up to $2 117 mIllIon In fundIng IS avaIlable to reImburse the town for the samtary sewers Installed In the hamlet last year But first, Konkle said, the proVInce wants to make certaIn all envIronmental concerns were addressed dunng the proJect's constructlOn. "That's what IS confusIng about It," Konkle added In an IntervIew "They want to see all these envIronmental concerns that we addressed In the applIcatlOn and In the constructlOn "Normally when the grant IS announced, you then go ahead and do the constructlOn. ThIS way we've done the work, paid for the product and now the grant's comIng along at the taIl end." ThIS artIcle came to the gnevor's attentlOn and he faxed a copy of It to a Mimstry officIal and also placed a call to the Town to InqUIre about the status of the matter The call was returned by the Mayor and he and the gnevor dIscussed the matter IncludIng the possIbIlIty of the gnevor assIstIng In takIng some steps to perhaps facIlItate the tImely delIvery of the promIsed funds to the Town. The Mayor then forwarded a package of documents to the gnevor These Included a cover letter from the Mayor The Mimstry of the EnvIronment's CertIficates of Approval for the proJect; a letter (referred to In the above newspaper report) from the OSTAR federal/provIncIal admInIstrators, and a letter from the Town's Techmcal ServIces Manager confirmIng that the new sewer system was Installed and operatlOnal I pause to note that the letter from the OSTAR admInIstrators provIded to the gnevor by the Mayor (and dIscussed In the newspaper report described earlIer) was one whIch the gnevor referred to throughout these proceedIngs as "the wonky letter" WhIle that may have been a 21 colourful turn of phrase tYPIcal of the gnevor It was also eVIdent that there was at least some propnety In the appellatlOn. The letter addressed to the ChIef AdmInIstratIve Officer of the Town Included, for example the folloWIng The mumclpalIty's proJect to construct a communal sewage collectlOn sy stem IS very Important from a health and safety perspectIve It IS essentIal to Insure that you have obtaIned all the reqUIred regulatory approvals Staff wIll work wIth your officIals to finalIze the mIlestones wIthIn the contnbutlOn agreement pnor to It beIng sent for reqUIred sIgnature(s) The contnbutlOn agreement wIll outlIne the mumclpal mIlestones and the reqUIred terms and condltlOns that you must follow In order to ensure receIpt of the fundIng The tone of the letter reflects a perceptlOn that thIS was but the very begInmng of detaIled lengthy and complIcated process of approvals and constructlOn. But clearly whIle thIS may well have represented a first step for OSTAR, the Town had already completed ItS Journey The gnevor's efforts were aimed at puttIng the two Into the same temporal umverse and perhaps facIlItatIng the promIsed payments - a task whIch may have taken on some added urgency In the face of an ImmInent, and ultImately protracted, publIc servIce stnke In any event, In addltlOn to provIdIng the above documents, the Mayor also undertook to have IMS the general contractor for the proJect, provIde the gnevor wIth some further InfOrmatlOn. Shortly thereafter IMS provIded further documentatlOn confirmIng the completlOn of the proJect. The gnevor forwarded these two sets of documents (i e those receIved from the Mayor as well as those from IMS) to the two officIals responsIble for OSTAR fundIng and to the Mimstry officIal Involved In the more lImIted Mimstry fundIng. The fax cover to the OSTAR officIals Included the folloWIng notatlOn "All orders are In complIance CertIficates of approval attached. Call If further InfOrmatlOn reqUIred." The gnevor placed the fax covers and faxed documents In the sortIng tray to be filed by support staff The documents (and fax covers) apparently remaIned In the file thereafter (Mr NieweglowskI found them there when he chose to reVIew the file sometIme after the gnevor had provIded hIm wIth the STAR pnntout In September 2002 ) 22 ThIS, In essence, IS the "work" the gnevor dId on the proJect - the work whIch resulted In hIS dIsmIssal On ItS face there IS lIttle, If anythIng In the gnevor's self-conceIved Imtlatlve whIch would appear to warrant dIscIplIne There was no suggestlOn that any erroneous InformatlOn had been transmItted or that InformatlOn was provIded to anyone who ought not to have receIved It. As we shall see, It was the manner In whIch the gnevor dId thIS work much more so than the work havIng been done whIch precIpItated the employer's dIscIplInary response I wIll deal wIth those aspects of the employer's concerns momentanly I note, however that whIle there was consIderable vanance In the eVIdence about the dlscusslOn(s) that took place between the gnevor and Mr Vickers, It was agreed by all that the two had at least one Informal "In passIng" dlscusslOn In thIS tIme penod dunng whIch Mr Vickers confirmed to the gnevor that the local authontles were Indeed In complIance wIth the Mimstry's orders And Mr NieweglowskI, In hIS eVIdence, acknowledged that he hImself would have had no hesltatlOn In relYIng on such an assurance provIded by Mr Vickers The letter oftermInatlOn delIvered to the gnevor on October 18 2002 IdentIfied hIS conduct as "a contInuance of your faIlure to follow InstructlOns over the past two and a half years" and the specIfic conduct In questlOn IS IdentIfied as the gnevor havIng "provIded InfOrmatlOn to a mumclpal officIal and to other stakeholders on the Campden proJect to whIch you were not assIgned." Before movIng on to what appear to have been the employer's true concerns wIth the gnevor's conduct, I note that, apart from what clearly appear to be Inaccurate employer notatlOns, there IS absolutely nothIng In the eVIdence to suggest that the gnevor supplIed any InformatlOn to any mumclpal officIal But the employer's real concerns about the gnevor's conduct are rooted In two factual assertlOns FIrst, It was asserted that the gnevor was specIfically and explIcItly Instructed not to do any work whatsoever on the Campden file In that context, the work he dId, however otherwIse Innocuous It may have been, was a clear Instance of overt and calculated InsubordInatlOn. Related to and floWIng from that concern IS the fact that the gnevor never sought any specIfic authonzatlOn to do the work he dId and never took any steps to advIse management that the work had been done 23 Before I turn to the specIfic questlOn of whether the gnevor was ever Instructed not to work on the Campden file, a more general comment IS In order It was abundantly clear to me from the eVIdence, that the scope of the gnevor' S prevlOus "mIsdeeds" was far greater In hIS supervIsors' mInds (and perhaps, too In realIty) than hIS dIscIplInary record dIsclosed. Mr NieweglowskI, for example, adverted to complaInts about the gnevor's performance whIch were not part of the dIscIplInary record and Dr Corr spoke of unpartlculanzed - and perhaps more Importantly undISCIplIned - transgresslOns the gnevor had allegedly commItted (e g. the gnevor's habIt of not attendIng meetIngs - a complaInt nowhere reflected In the dIscIplInary record) ThIS no doubt goes some dIstance to explaIn, at least In general terms, the employer's apparent enthusIasm to rush to Impose penaltIes whIch mIght be seen to be out of proportlOn wIth the formal dIscIplInary record. The gnevor tned the patIence of thIS Board In the manner In whIch he gave hIS eVIdence The Board has no doubt that he has the capacIty to equally keenly try the patIence of management. It does not appear however that the gnevor's dIfficultIes were well managed. ThIS may well be a case where a more vIgIlant applIcatlOn of basIc managenal oblIgatlOns and prerogatIves mIght have produced a result much more unfavourable to the gnevor However In the case before me the Integnty of the culmInatIng IncIdent must be assessed agaInst the backdrop of the gnevor's actual formal dIscIplInary record. Two events are pOInted to In support of the claim that the gnevor had been explIcItly Instructed not to work on the Campden file The fall of 2000 was undoubtedly the nadIr of the gnevor's relatlOnshlp wIth hIS pnor supervIsor Dr Corr Dunng thIS penod the gnevor receIved a less than stellar performance appraisal and at about the same tIme was Involved In an IncIdent of aggressIve behavlOur towards hIS supervIsor whIch later resulted In the ImposltlOn of a 15-day suspenslOn whIch was, stIll later ultImately reduced to three days On October 2, 2000 Dr Corr forwarded the folloWIng emaIl to the gnevor ThIS IS to confirm your assIgned task lIst as dIscussed at your performance appraisal on September 20th 2000 24 You are removed from the folloWIng proJ ects as of September 20th 2000 Wellandvale (kayak course) Well and River and Ontano Power GeneratlOn. You were asked for the relevant contacts for these proJects and they wIll be notIfied of thIS change You asked, If you were contacted, whether you could say that you were no longer workIng on the proJect and I agreed. I am confirmIng to you that you wIll refer any further questlOns or dlscusslOn to myself or Mr NieweglowskI, SInce you are no longer Involved In these proJects You wIll remaIn assIgned to Lyons Creek, Altlen, 69 Cathenne St. and Cytec, wIth the addltlOn of Manners Cleaners You are assIgned to gIve engIneenng advIce upon request to the folloWIng proJ ects Please note the lead staff member for each proJ ect. Kolbec Dnve (Rich Vickers) Ian SmIth property (Paul Widmeyer), Gallaher (LInda Gabnele) In the STAC program, you wIll reVIew the report from Atlas, due date for your completlOn October 19 2000 as dIscussed In your performance appraisal meetIng, and proceed wIth WashIngton Mills and Exolon. Although Dr Corr's IntentlOn may well have been to clanfy what the gnevor was and was not to be workIng on, there IS no mentlOn of the Campden proJect In thIS emaIl and Dr Corr conceded that there was no dlscusslOn whatsoever of the Campden file dunng the meetIng whIch resulted In thIS emaIl There was, thus, no clear IdentIfiable order or InstructlOn to the specIfic effect that the gnevor was prohIbIted from dOIng any work whatsoever on the Campden file SImIlar concluslOns are Inescapable when I consIder the dlscusslOn the gnevor and Mr NieweglowskI had In September 2001 shortly after the latter took over responsIbIlIty as the gnevor's supervIsor FIrst, there IS no wntten record whatsoever of thIS meetIng, only conflIctIng recollectlOns of an event whIch took place a full year before any asserted breach of the InstructlOns said to have been gIven. Mr NieweglowskI was clear In hIS eVIdence that hIS IntentlOn was to refocus all of the gnevor's efforts to the "STAC" programme and that, In that context, he told the gnevor that he was beIng removed from all other proJects and that he was to work exclusIvely on STAC The gnevor acknowledged, In hIS eVIdence that he had been advIsed that STAC would constItute at least the maJonty of hIS work. His recollectlOn, however dId not Include any specIfic InstructlOn or dlrectlOn that he cease dOIng any work whatsoever on prevlOusly assIgned proJects or that he 25 not engage In any follow up resIdual work In relatlOn to any such proJect. It IS clear however from the eVIdence of both partIcIpants, that there was no dlscusslOn related specIfically or explIcItly In any fashlOn to the Campden proJect. I have not found It necessary to determIne wIth utter comprehenSIve preclslOn what was and was not said dunng thIS meetIng. Suffice It to say that the truth lIkely lIes somewhere between the verSlOns proffered by the partIcIpants Mr NieweglowskI's recollectlOn lIkely reflects, at least to some extent, hIS "IntentlOn" In the meetIng - an IntentlOn whIch may not have always been fully explIcItly captured by the words whIch were uttered. On the gnevor's sIde, I am satIsfied that the dlscusslOn IndIcated somewhat more clearly delIneated boundanes around the parameters of hIS assIgnment. But for our purposes, It IS sufficIent to note that no explIcIt InstructlOns were tendered wIth respect to the Campden proJect. I note, as well, Mr NieweglowskI's more generalIzed candId acknowledgements that absent contrary InstructlOns, It would not have been unusual for the gnevor to have contInued to work on a proJect he had worked on In the past - and It would not be unusual to receIve Inqumes about longstandIng Issues Further Mr NieweglowskI also acknowledged that the gnevor would not reqUIre specIfic permlsslOn each tIme he would respond to telephone Inqumes or send a fax unless It was In relatlOn to a contentlOus proJ ect and that some element of Judgement would be reqUIred to determIne whether a matter was sensItIve or routIne WhIle there IS no real dIspute about what documents the gnevor receIved and, In turn, faxed to others, any attempt to construct the specIfic chronology of constItuent and attendant events In all of theIr mInute detaIls IS a near ImpossIbIlIty There are undoubtedly multIple reasons for thIS Perhaps chIef among them, was the ImpreSSIve flexIbIlIty the gnevor offered In hIS eVIdence I am satIsfied that much of that "vanety" In the gnevor's eVIdence may be attnbutable to legItImate dIfficultIes In recollectlOn (e g. a change In the gnevor's eVIdence about the relatIve tImIng of the March 2002 newspaper artIcle and subsequent events - a change whIch, perhaps not surpnsIngly occurred only after the gnevor had the opportumty to reVIew - and ascertaIn the preCIse date of - the newspaper artIcle) In respect of whIch I have already IndIcated an InClInatlOn to permIt the gnevor the benefit of the doubt. I am unable, however to extend that Indulgence to all of the gnevor's eVIdence In partIcular I found hIS eVIdence about the nature and extent of hIS dlscusslOns wIth Mr Vickers to 26 be breathtakIngly elusIve ThIS was not an Instance of the gnevor's hyperbolIc Imagery overtakIng the realIty It represented Nor dId It flow from genUIne memory lapses - the problem wIth the gnevor' s eVIdence on thIS pOInt was too much not too lIttle recollectlOn. Indeed, as hIS eVIdence progressed through chIef and cross-eXamInatlOn, the breadth of the asserted consultatlOns wIth Mr Vickers expanded. The eVIdence not only grew as It unfolded but there were some Instances where It was self-contradIctory On the whole and whIle I stIll remaIn loath to ascnbe any nefanous motIves to the gnevor on thIS score I generally prefer the eVIdence of Mr Vickers to the gnevor's where there were conflIcts between the two However thIS does not negate my concluslOn that whIle the gnevor dId not seek Mr Vicker's authonzatlOn (nor more Importantly that of hIS supervIsor Mr NieweglowskI) for what he was about to do the two dId engage In a dlscusslOn, however bnef, whereIn the gnevor commumcated hIS concern anSIng from the newspaper artIcle (and perhaps even the "wonky letter" Itself), Mr Vickers confirmed that the local authontles were Indeed In complIance wIth Mimstry orders and where the gnevor In all lIkelIhood, commumcated, In however lImIted a fashlOn, hIS IntentlOn to follow up (e g. as he put It, Imtlally to contact the "capItal guys") Worthy of discipline? Was the gnevor's conduct worthy of dIscIplIne? In a word barely The gnevor' s conduct was dealt wIth and portrayed before me as a classIc Instance of InsubordInatlOn. WhIle the gnevor's conduct was, to a lImIted extent, Inappropnate, I am not persuaded that It IS conduct whIch nses to the level of InsubordInatlOn. The partIes referred to numerous cases In support of theIr posltlOns on thIS Issue For present purposes, I need go no further than a bnef conslderatlOn of the semInal case of Re Hunter Rose Co Ltd And Graphic Arts International Union, Local 28-B (1980),27 L AC (2d) 338 (McLaren) whIch enumerated the elements of the offence as follows (at page 344) InsubordInatlOn IS a common type of dIscIplInary actlOn In labour relatlOns matters and IS consIdered to be of a senous nature because It stnkes at the very 27 heart of an employer's prerogatIve the nght to manage Generally It IS felt that the nght to order employees to carry out work actIvItIes wIthout debate or actlOn whIch causes loss of respect IS essentIal to the role of management. In order to constItute InsubordInatlOn In law It has been held that there are three essentIal components whIch must be present In the proven verSlOn of events FIrst, there must be a clear order understood by the gnevor Second, the order must be gIven by a person In authonty over the gnevor FInally the order must be dIsobeyed. On thIS last pOInt, the award contInues (at page 346) The final cntena to establIsh InsubordInatlOn IS that an order must have been dIsobeyed by an employee The dIrect refusal of an employee to do somethIng IS consIdered to undermIne the managenal functlOns and, generally arbItrators have looked for an IntentlOn to undermIne authonty as an element of the offence There are two aspects In whIch I am unpersuaded that a clear case of InsubordInatlOn has been made out. First, It has not been establIshed that the gnevor was ever gIven the clear dIrect order prohIbItIng hIm from dOIng any work whatsoever on the Campden file The more generalIzed InstructlOn, I e that he was beIng taken off all prevlOus assIgnments or that he was not to work on unassIgned proJects, IS one whIch was eIther not gIven or not fully understood by the gnevor But In VIew ofMr NieweglowskI's other eVIdence, even such an InstructlOn mIght not have precluded a lImIted response to a resIdual InqUIry on a longstandIng matter the gnevor had prevlOusly worked on. More sIgmficant perhaps, IS the questlOn of the gnevor's motlvatlOn. For not only am I not persuaded that hIS motlvatlOn was not defined by an IntentlOn to undermIne managenal authonty I am equally unpersuaded that there was any nefanous motlvatlOn at play Employer counsel made a valIant effort to explaIn and present the gnevor's motIve as questlOnable He suggested there was some essentIal effort by whIch the gnevor wanted to assIst hIS fnend, the Mayor In gettIng the promIsed funds released. FIrst, It appears that the charactenzatlOn of the gnevor and the Mayor as personal fnends IS one whIch stretches the reasonable bounds of the category The gnevor testIfied that he had worked wIth the Mayor on vanous occaSlOns over the years The fact that they may have been on a first-name basIs IS not terrIbly surpnsIng (partIcularly when I consIder that the gnevor chose, despIte the lImIted nature 28 of our InteractlOns, to address me on a first-name basIs as well) In any event, It IS clear to me that there was no personal advantage to be gaIned by eIther the gnevor or the Mayor In the purSUIt of thIS effort. I was also struck by the relatIve openness of the gnevor's actIvItIes WhIle he mIght well have made efforts to more specIfically and explIcItly commumcate hIS actIvItIes to management, neIther dId he take any of the sImplest steps whIch mIght have been avaIlable to conceal hIS actIvItIes He placed all of the relevant documents and fax covers In the basket, to be sorted by support staff and placed In the file where Mr NieweglowskI found them several months later ThIS suggests to me that the gnevor dId not belIeve that he had engaged In any Inappropnate actIvIty I heard some vanety of VIews about whether and to what extent secunng fundIng IS a matter WIthIn the purvIew of the gnevor's branch of the Mimstry Clearly thIS office's chIef goal IS enforcement, not the fundIng of proJects Yet there was sImply nothIng In any of the eVIdence before me to suggest that the gnevor's Imtlatlve, however removed It may have been from the Mimstry's core focus, was In any way In and of Itself, Inappropnate On the contrary I am satIsfied that the gnevor's motIves were pure and altruIstIc For what then (apart from the frequently questlOnable dIsplay he put on dunng hIS eVIdence) IS the gnevor to be legItImately cntlclzed or chastIsed? The Campden file was a longstandIng hIghly contentlOus file I do not entIrely accept Mr NieweglowskI's eVIdence suggestIng the matter was Just as contentlOus or controversIal In March 2002, well after the constructlOn was complete and the new system was In operatlOn, as It had been dunng earlIer phases of the proJect. It remaIned, however a matter wIth hIgh VISIbIlIty wIthIn the commumty The gnevor had not done any sIgmficant work on thIS file for some years And although not specIfically or explIcItly prohIbIted from dOIng any follow up or other margInal resIdual work on the Campden file, the gnevor had, through hIS two most recent supervIsors, been explIcItly assIgned to certaIn proJects and taken off others He was thus aware that there was some concern on the employer's part about the breadth of hIS assIgnments In that context, the gnevor knew or ought to have, that some specIfic commumcatlOn WIth hIS supervIsor (eIther to seek authonzatlOn or at a bare mlmmum, to keep management explIcItly 29 advIsed of hIS actIvIty) would have been In order It was thIS that he faIled to do - an omlSSlOn for whIch he can be legItImately cntlclzed. Is discharge warranted? In the ordInary course, It IS dIfficult to conceIve of the gnevor's partIcular transgresslOn as attractIng anythIng more than the most margInal form of dIscIplIne The Instant case, however anses In a more specIfic context. FIrst, the employer asserts that, gIven the gnevor's dIscIplInary record, thIS transgresslOn, however It mIght otherwIse be treated In ItS own nght, constItutes a culmInatIng IncIdent warrantIng the gnevor's dIscharge HavIng consIdered the submlsslOns of the partIes, I am not persuaded that the gnevor by vIrtue of hIS pnor dIscIplInary record, was pOIsed so precanously on the edge oftermInatlOn that a transgresslOn as margInal as the Instant one would be sufficIent to propel hIm over the edge That might have been the case had the gnevor's most recent pnor dIscIplIne been 10-day and 15-day suspenslOns Imposed vIrtually sImultaneously Such IS not the case before me And It might even have been a more lIkely result had the Instant transgresslOn occurred more proxImate In tIme to those 2 suspenslOns Such IS not the case before me The gnevor's dIscIplInary record has already been canvassed and set out earlIer In thIS award. The most recent dIscIplIne consIsts of a 3-day suspenSlOn and a wntten warnIng In respect of conduct whIch occurred well over two years pnor to the gnevor's dIscharge and a one-day suspenSlOn for conduct whIch occurred some 22 months pnor to hIS dIscharge In other words, whIle the gnevor was not able to benefit from the 3 year sunset clause on dIscIplIne found In ArtIcle 17 3.2 of the collectIve agreement, the fact remaInS that, but for the events gIVIng nse to the dIscharge, there IS sImply nothIng whatsoever on the gnevor's file to suggest that there were any dIfficultIes or any conduct warrantIng dIscIplIne for a penod approachIng two years Undoubtedly there IS a greater legItImacy to seekIng to elevate a relatIvely mInor event to the level of culmInatIng IncIdent when It occurs hot on the heels of pnor sIgmficant dIscIplIne rather than two years later That IS not to say however that In a proper applIcatlOn of progressIve 30 dIscIplIne, a mInor InfractlOn ought not to attract a more severe penalty than It mIght otherwIse warrant standIng alone However In assessIng whether dIscharge IS the appropnate penalty In thIS case, I am also unable to Ignore the actlOns of the collectIve bargaInIng partIes In relatlOn to the gnevor's pnor dIscIplIne The ten- and fifteen-day suspenSlOns Imtlally Imposed by the employer were, through a settlement ansIng out of the gnevance procedure, reduced to a wntten warnIng and a 3-day suspenslOn respectIvely The partIes are precluded from gOIng behInd the terms of the settlement or from attemptIng to lItIgate the facts gIVIng nse to It. More specIfically the employer cannot be heard to argue that 10 and 15-day suspenSlOns were the appropnate penaltIes for the mIsconduct In questlOnJust as the umon can no longer assert that there was no Just cause for any dIscIplIne In relatlOn to the events The settlement thus becomes an ummpeachable part of the gnevor's dIscIplInary record. The settlement was made on a wIthout preJudIce basIs That does not rob It of ItS bIndIng effect In relatlOn to the specIfic events that were part of the resolved gnevances It does mean that the settlement does not forever establIsh the specIfic penaltIes agreed to as the only ones appropnate for sImIlar or IdentIcal conduct - It means that, despIte thIS settlement, the partIes are free to adopt any posltlOn they mIght choose to take In any future sImIlar or substantIally IdentIcal case But a conslderatlOn of these events hIghlIghts a pOInt whIch IS no doubt self-evIdent even wIthout reference to the gnevor's specIfic dIscIplInary hIStOry The pOInt IS, however surely IllumInated and brought Into sharp relIef by such a conslderatlOn. The mere fact that 10 and 15-day suspenSlOns were reduced to a wntten warmng and a 3- day suspenslOn provIdes a graphIc IndlcatlOn of the employer's awareness of the fact that there are, In the arsenal of progressIve dIscIplIne, weapons avaIlable whIch are greater than wntten warmngs and 3-day suspenSlOns but less severe than dIscharge I see no reason why the dIctates of progressIve dIscIplIne (partIcularly when I consIder the nature of the offence and the reasonably lengthy penod free of dIscIplIne) eIther reqUIre or warrant that the employer vault over the IntermedIate weapons dIrectly to dIscharge 31 In all of the CIrcumstances of the case, I am satIsfied that dIscharge IS too severe a penalty Should the remedy exclude reinstatement? The employer has argued that, even If, as I have found, dIscharge IS too severe a penalty In the cIrcumstances, the gnevor ought not to be reInstated In hIS employment. Rather some other remedy ought to be fashlOned. The partIes filed numerous authontles In respect of theIr competIng posltlOns on thIS Issue There was no real legal dIspute between them on thIS Issue - but sIgmficant dIfferences as to how fairly well establIshed legal pnnclples ought to be applIed In thIS case In other words, It was agreed that thIS Board has the authonty to fashlOn a remedy whIch precludes reInstatement. The Issue IS whether the present case warrants that exceptlOnal approach. And there IS no doubt that arbItrators have vIewed thIS type of result as truly exceptlOnal There are sound reasons for arbItrators' general retIcence to embrace thIS remedIal approach absent truly exceptlOnal CIrcumstances On ItS face such a result IS presumptIvely at odds wIth a fundamental bargaIn whIch underlIes not only the Instant collectIve agreement, but also the entIre collectIve bargaInIng scheme on whIch It IS constructed The essentIal bargaIn In any collectIve agreement, Involves the abandonment, dunng the term of the agreement, of any collectIve stnke actlOn by the umon In return for a process desIgned to Insure the efficIent resolutlOn of any and all dIsputes InvolvIng the InterpretatlOn or admInlstratlOn of the collectIve agreement. And, of course, from the earlIest days of collectIve bargaInIng as we know It, trade umons have focused on Issues of Job secunty IncludIng the UbIqUItouS protectlOn agaInst dIscharge except for Just cause SImIlarly the remedIal arsenal of arbItrators selected to adJudIcate such dIsputes has always Included the presumptIve reInstatement of employees found to have been dIscharged wIthout Just cause 32 The protectlOn agaInst dIscharge wIthout Just cause and the attendant avaIlabIlIty of reInstatement where Just cause IS not establIshed are tWIn hlstonc features of the collectIve bargaInIng regIme They ought not to be lIghtly dIscarded. Indeed, the avaIlabIlIty of reInstatement IS a feature whIch IS largely umque to the arbltratlOn process and one whIch clearly dIstIngUIshes that process from the more tradltlOnal JudIcIal approach to wrongful dIsmIssal (And, of course, when a collectIve agreement IS In place, there IS no access to that tradltlOnal approach through cIvIl lItlgatlOn for wrongful dIsmIssal) ThIS Board has consIdered, confirmed and, on rare occaslOns, exercIsed ItS authonty to deny reInstatement even where Just cause for dIscharge has not been establIshed. As the Board observed In Massa, GSB # 2033/97 et. al (Abramsky) at page 69 The case law IS clear that thIS remedy IS an exceptlOnal arbItral response In a umomzed workplace" Us. WA. LocalI12998 and Liquid Carbonic Inc [(1996) 20 O.R. (3d) 468 (Ont. DIV Ct.)] As I stated In Re Rockcliffe Nursing Home and Service Employees International Union, Local 204 [(1977) 62 L.A.C (4th) 316 (Abramsky)] at p 342-343 It IS an exceptlOnal remedy SInce It IS fundamentally contrary to the concept of Just cause whIch eXIsts under a collectIve agreement. In contrast to the common law under whIch an employee may be dIsmIssed for any legal reason wIth proper notIce (or damages In lIeu thereof) an employee protected by a Just cause provlslOn In a collectIve agreement normally has a nght to reInstatement If It IS found that hIS or her dIscharge was wIthout Just cause Only "[w]here the concluslOn IS Inescapable that the vIabIlIty of the employment relatlOnshlp has been destroyed, reInstatement IS not deemed to be In the best Interests of the partIes or the gnevor and damages In lIeu of reInstatement may be awarded." (p 343) The employer pOInts to a number of factors In support of ItS posltlOn that the employment relatlOnshlp In thIS case has been destroyed. They all hInge, however on two pnmary submlsslOns The gnevor's conduct, up to and IncludIng the events whIch gave nse to hIS dIscharge, has demonstrated hIS contInuIng InabIlIty or refusal to follow InstructlOns and there IS no reason, In the face of that, to belIeve that the employment relatlOnshlp IS anythIng but Irretnevably lost. 33 Secondly It IS submItted that the gnevor In hIS eVIdence before thIS Board, has succeeded In alIenatIng both Mr NieweglowskI and Mr Vickers to the extent that hIS abIlIty to work wIth eIther or both of these gentlemen has been termInally compromIsed. TakIng the second concern fist, I echo the sentIments of numerous arbItrators that any mere concern about possIble fnctlOn In the workplace should not be sufficIent to warrant denYIng reInstatement. As arbItrator MacDowell observed In Re Tenant Hotline and Peters and Gittens, (1983), 10 L AC (3d) 130 at page 144 "Office pOlItICS" are always present to a greater or lesser extent In all work groups These are the ordInary problems of human relatlOns whIch eXIst In every work place But I do not thInk the personal OpInlOnS or preJudIces of fellow workers should amount to a veto over an employee's nght to reInstatement When an employee has been unJustly dIscharged, I do not thInk hIS nght to reInstatement should turn on hIS abIlIty to SOlICIt personal testlmomals, or upon hIS employer's abIlIty to mobIlIze contrary personal OpInlOnS WhIle I can easIly apprecIate both Mr NieweglowskI and Mr Vickers beIng taken aback and even offended by some of the gnevor's hyperbolIc InClInatlOns whIle testIfYIng, I am satIsfied they are both sufficIently mature and responsIble to not allow such fleetIng responses to Impede theIr Important work, even If that reqUIres an ongOIng assoclatlOn wIth the gnevor In thIS regard, my ImpresslOn ofMr NieweglowskIleads me to readIly conclude that he possesses the capacIty for grace whIch may be reqUIred to Insure that the gnevor IS gIven every opportumty to succeed and to repair whatever damage may have been occaslOned to workplace relatlOnshlps At the same tIme, however I am equally confident that he IS capable of the managenal vIgIlance whIch may also be reqUIred to Insure that If future dIscIplIne IS warranted In the gnevor's case, It IS done so on the basIs of a properly maIntaIned dIscIplInary record There are, however more sIgmficant reasons why I am not InclIned to accept the employer's InVltatlOn to deny reInstatement In thIS case I have already IndIcated that, at least In the employer's perceptlOn, the extent of the gnevor's transgresslOns appears much more sIgmficant than hIS dIscIplInary record would 34 dIsclose There may well be a legItImate baSIS for that perceptlOn. Indeed, I have also already IndIcated that based on hIS performance as a wItness, I have lIttle hesltatlOn In concludIng that the gnevor mIght present sIgmficant dIfficultIes to a manager I cannot, however permIt the employer's perceptlOns of the gnevor's persIstent performance dIfficultIes - however legItImate they may ultImately prove to be - to eclIpse or dIStort the borders of hIS dIscIplInary record. The InVOcatlOn of the culmInatIng IncIdent doctnne IS not an InVltatlOn for the employer to eIther (implIcItly or explIcItly) rely upon mIsconduct whIch IS not part of the dIscIplInary record. More Importantly and whIle that IS a more generalIsed concern, It IS one whIch becomes partIcularly acute In the context of the employer's appeal for a remedy whIch excludes reInstatement where there IS no Just cause for dIscharge The avaIlabIlIty of such a remedy IS not and ought not to be a proxy for progressIve dIscIplIne It does not and should not provIde an opportumty for an employer to effectIvely sever the employment relatlOnshlp and to deny an essentIal collectIve bargaInIng remedy In CIrcumstances where the applIcatlOn of progressIve dIscIplIne may have been less than complete In the extreme case, an employer mIght not Impose any dIscIplIne at all for a senes of culpable events and, ultImately seek to rely on all of them to assert reInstatement ought not be granted even absent Just cause for dIscharge I do not mean to suggest that the Instant matter IS that extreme case, but I have grave concerns that It IS the employer's less than fully vIgIlant commItment to pnnclples of progressIve dIscIplIne whIch, at least to some extent, dnve the request In thIS case FInally on thIS pOInt, I return to the tImIng of events and, In a roundabout fashlOn, to the questlOn of delay There are multIple contexts In whIch arbItrators are called upon to perform as prognostIcators In respondIng to requests that reInstatement be demed despIte the absence of Just cause for dIscharge, arbItrators have assessed the future potentIal of the employment relatlOnshlp In order to conclude whether or not It has been fatally compromIsed. In the present case the tImIng of events and, In partIcular the delay In ImpOSIng the dIscharge have provIded me wIth some tools to elevate that assessment further outsIde the bounds of pure speculatlOn. 35 I have already commented on questlOns of the effect of the gnevor's testImony In these proceedIngs on hIS future dealIngs wIth Messrs NieweglowskI and Vickers But actual expenence suggests that thIS employment relatlOnshlp IS not one whose vIabIlIty has been entIrely depleted. The gnevor contInued to work for some 7 months after the events whIch gave nse to hIS dIscharge And there was sImply nothIng put before me to suggest that there were any dIfficultIes In hIS performance dunng that partIcular penod. Indeed, and as I have already observed, the gnevor IS an employee who but for the March 2002 events - ones I have found to barely warrant dIscIplIne - has a record free of any conduct gIVIng nse to dIscIplIne for a penod approachIng two years ThIS sImply IS not the kInd of exceptlOnal case warrantIng the demal of reInstatement. Conclusion The gnevor's conduct warrants some dIscIplIne short of dIscharge ThIS IS not a case where It IS appropnate to fashlOn a remedy whIch excludes reInstatement. The gnevor's offence IS more aptly descnbed as an error In Judgement rather than delIberate InsubordInate conduct. HavIng regard to the margInal senousness of the offence, the state of the gnevor's dIscIplInary record and the less than helpful fashlOn In whIch he presented hIS eVIdence, I am satIsfied that a 10-day suspenSlOn would be Just and reasonable In the CIrcumstances of thIS case The gnevor IS to be forthwIth reInstated Into hIS employment. A suspenSlOn of 10 days wIll replace the dIscharge The gnevor's reInstatement shall be wIth full compensatlOn (subJect to the 10-day suspenSlOn and to any other applIcable conslderatlOns) and wIthout loss of semonty or benefits I wIll remaIn seIzed In the event the partIes encounter any dIfficultIes In the ImplementatlOn of my award. 36 To the extent hereIn set out, the gnevance IS allowed. Dated at Toronto thIS lSth day of August 200S .. ~_~ ~L;<.,_".._. . ,., ,.,,~ .. Bram Her ich Vice-Chair