HomeMy WebLinkAbout2007-3507.MacLeod.08-07-28 Decision
Commission de
Crown Employees
Grievance Settlement
règlement des griefs
Board
des employés de la
Couronne
Suite 600 Bureau 600
180 Dundas St. West 180, rue Dundas Ouest
Toronto, Ontario M5G 1Z8 Toronto (Ontario) M5G 1Z8
Tel. (416) 326-1388 Tél. : (416) 326-1388
Fax (416) 326-1396 Téléc. : (416) 326-1396
GSB# 2007-3507
UNION# 2007-0164-0028
IN THE MATTER OF AN ARBITRATION
Under
THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT
Before
THE GRIEVANCE SETTLEMENT BOARD
BETWEEN
Ontario Public Service Employees Union
(MacLeod)
Union
- and -
The Crown in Right of Ontario
(Liquor Control Board of Ontario)
Employer
BEFOREVice-Chair
Michael V. Watters
FOR THE UNION Ron Lebi
Koskie Minsky LLP
Barristers and Solicitors
FOR THE EMPLOYER Gordon Fitzgerald
Counsel
Liquor Control Board of Ontario
HEARING June 18, 2008.
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Decision
This proceeding arises from the Employer?s decision to terminate the
grievor?s employment as a consequence of an allegation that he threatened a fellow
employee, namely Mr. Tim Goulden, on November 8, 2007. At this juncture, it is
unnecessary to address certain additional allegations involving another employee,
Ms. Sherry Branton, set out in the letter of termination dated November 23, 2007
(exhibit #1).
The letter of termination contains the following paragraph:
?In a Grievance Settlement Board decision dated August 9, 2004 Vice-Chair
Gerry Lee reinstated you to employment following your termination for
being ?observed on three different occasions of intimidating, verbally and
physically assaulting employees of the London Retail Service Centre?.
While the discipline that was imposed in that decision is no longer active
and is not being relied upon by the LCBO, one of those employees, Mr.
Goulden, was the employee you physically assaulted in 2004 and whom you
have again threatened.?
The Decision of Vice-Chair G. Lee dated August 9, 2004 was filed as
exhibit #3. The Decision simply set out the conduct the grievor was observed to
have engaged in and then listed a number of conditions attached to the
reinstatement. Vice-Chair G. Lee noted therein that following a mediation-
arbitration hearing concerning the matter, the parties asked for the issuance of a
?without precedent decision with no reasons?.
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It is agreed between the parties that the discipline imposed as a consequence
of the August 9, 2004 Decision falls outside of the three (3) year period provided
for by article 26.2 of the collective agreement. That provision reads:
?No discipline against an employee shall be used in a subsequent
disciplinary proceeding if such prior incident is more than three (3) years
old.?
The parties disagree, however, as to the Employer?s right to present evidence about
the prior incident involving the grievor and Mr. Goulden. Counsel for the
Employer advised that he intended to call such evidence. Counsel for the Union,
in response, indicated he would object to any attempt to do so. If was ultimately
agreed that written submissions would be provided with respect to this issue.
I have now had the opportunity to review the following:
i.The Union?s written submissions dated June 27, 2008 and the following
authorities referenced therein: OLBEU (Xanthopoulos) and LCBO,
1321/89 (Fisher); Re Canada Post Corp. and Canadian Union of Postal
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Workers (Dwyer) (1992), 24 L.A.C. (4) 436 (Shime); Re Sunnybrook
Hospital and Sunnybrook Hospital Employees Union, Local 777 (1987),
32 L.A.C. (3d) 381 (Brown); and Canadian Union of Public Employees,
Local 79 and City of Toronto, [2003] 3 S.C.R. 77;
ii.The Employer?s reply submissions dated July 10, 2008 and the following
authorities referenced therein:Molson Ontario Breweries Ltd. and
Brewery, Malt and Soft Drink Workers, Local 304 (1989), 5 L.A.C. (4th)
396 (Verity); De Havilland Inc. and C.A.W., Local 112 (1996), 54
L.A.C. (4th) 285 (Rayner); Pacific Inland Resources and Northern
Interior Woodworkers? Association (2006), 148 L.A.C. (4th) 284
(Coleman); Greater Niagara Transit Commission and Amalgamated
Transit Union, Local 1582 (1987), 61 O.R. (2d) 565 (Ont. Div. Ct.);
Kimberly-Clark Inc. and Industrial Wood and Allied Workers of Canada,
Local 1-92-4, [1996] O.L.A.A. No. 46 (Bendel); and OPSEU (Gillis)
and Ministry of Community Safety and Correctional Services (2005),145
L.A.C. (4th) 205 (Abramsky); and
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iii.The Union?s reply submissions of July 18, 2008.
The above submissions are incorporated into this Preliminary Decision.
After due consideration, I have decided not to receive evidence from the
Employer with respect to the specific facts and circumstances surrounding the
2004 incident. In my judgment, the receipt of such evidence would be contrary to
the intent of the sunset provision contained in article 26.2, and could significantly
prejudice the grievor in this proceeding.As a matter of labour relations policy, I
think that there should be some finality to the mediation-arbitration process. The
interest of the parties would not be well served if stale discipline could be
relitigated ad infinitum. I note, from the authorities provided, that the facts relating
to the earlier incident would not form part of the grievor?s record if that incident
could properly be considered for purposes of applying progressive discipline under
article 26.2. The record, in that scenario, would consist of the nature of the
offence, the penalty imposed and whether such penalty was sustained in whole or
in part through arbitration. I have not been persuaded that the specific facts of the
earlier incident should now be revisited after the expiration of the three (3) year
period established by the parties in article 26.2.
Given the above disposition, I will similarly not receive evidence from the
Union relating to the specific facts and circumstances of the 2004 incident.
As mentioned above, the earlier Decision of the Grievance Settlement Board
and the letter of termination have already been filed as exhibits. The former
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document is a matter of public record which I am entitled to consider. Given that
the aforementioned exhibits have been received, without initial objection from the
Union, and in view of the somewhat unusual circumstances of this case, I find that
the Employer may lead evidence for the following purposes:
i.to establish, in the event of any dispute on the point, that Mr. Goulden
was the employee physically assaulted by the grievor in 2004;
ii.to establish a ?nexus? between the 2004 and 2007 incidents, in the sense
that the former may explain why the grievor may have been motivated to
act as he did in November 2007 and why he might have made certain
statements attributed to him at the time; and
iii.to establish how Mr. Goulden perceived the 2007 incident, including his
state of mind at the time.
In addressing these matters, counsel will have to exercise caution and avoid
reference to the other specific facts and circumstances surrounding the 2004
incident, which I have found to be inadmissible pursuant to the discretion given to
me under section 48(12)(f) of the Labour Relations Act, 1995.
I am satisfied that the above determination provides both parties with a fair
and reasonable opportunity to present their respective cases.
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Dated at Toronto, Ontario this 28 day of July, 2008.
M.V. Watters
Vice-Chair