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HomeMy WebLinkAbout2018-2515.Mastrangelo.20-12-21 Decision Crown Employees Grievance Settlement Board Suite 600 180 Dundas St. West Toronto, Ontario M5G 1Z8 Tel. (416) 326-1388 Fax (416) 326-1396 Commission de règlement des griefs des employés de la Couronne Bureau 600 180, rue Dundas Ouest Toronto (Ontario) M5G 1Z8 Tél. : (416) 326-1388 Téléc. : (416) 326-1396 GSB# 2018-2515 UNION# 2018-5107-0048 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN Ontario Public Service Employees Union (Mastrangelo) Union - and - The Crown in Right of Ontario (Liquor Control Board of Ontario) Employer BEFORE Ian Anderson Arbitrator FOR THE UNION Natalie DeHaney-Stewart Ontario Public Service Employees Union Grievance Officer FOR THE EMPLOYER Adrienne Couto Liquor Control Board of Ontario Counsel HEARING August 11 and 27, September 1, 2020 - 2 - Decision [1] The Grievor’s employment was terminated for working at another job on four days on which he had called in sick and one day in which he was granted a shift change ostensibly to take care of his brother, and for leaving early from the rescheduled shift claiming to be sick when he was not. The grievance which is the subject of this arbitration was filed in response. [2] The parties filed an Agreed Statement of Facts (“ASF”). The Employer called no other evidence. The Union called the Grievor. Ultimately, there was no dispute that the Grievor worked at the other job on the days alleged. The Grievor denied the other allegation, maintaining that he was sick when he left early from the rescheduled shift. The Union argues that in the circumstances discharge was not warranted. [3] The following facts, which are derived and in many instances copied directly from the Agreed Statement of Facts, are not in dispute. I will comment on the evidence of the Grievor within the context of addressing the arguments of the parties. [4] The Grievor was employed as a casual customer service representative at the Employer's GTA Service Centre. He had five years of service. He had no guarantee of hours, but was required to meet minimum availability requirements of Monday, Tuesday and Wednesday anytime and the ability to work Fridays and Saturdays for stock inventory and Long Weekends as needed. There is no dispute the Grievor was well aware of these requirements and the need for him to comply with them. [5] The Grievor applied for a position with the City of Toronto. The position required him to work Mondays to Fridays from 7:00 a.m. to 3:00 p.m.. By letter dated June 25, 2018, the City advised him he was a successful applicant. The City job was a temporary position with a start date of July 4, 2018 and expected end date of October 9, 2018. [6] On June 27, 2018 the Grievor advised his Shift Supervisor that he could not work his upcoming scheduled day shifts with the LCBO as he had just got another job and would like to pass probation in that position. The Shift Supervisor advised the - 3 - Grievor that there was nothing he could do about the situation but that he would follow up with the management team. [7] The Shift Supervisor consulted with the management team. It was determined that the Grievor would not be excused from working his scheduled day shifts from Monday to Wednesday given the minimum availability requirements. By letter dated June 28, 2018 the Shift Supervisor advised the Grievor of this decision and reminded him of the minimum availability requirements. [8] On June 29, 2018 the Grievor called the Shift Manager wanting to know the reasoning behind the letter. The Shift Manager referred to the minimum availability requirements and advised the Grievor that he needed to work out an arrangement to work his posted shifts with the LCBO. [9] On July 23, 2018, the Grievor sent a text message to the Director, Wholesale Supply Chain. The Grievor referenced his communications with his Shift Supervisor and Shift Manager and asked if there was anything which could be done to accommodate him by not scheduling him for morning shifts with the LCBO until October. The Director was on vacation but arranged a meeting with the Grievor upon his return. They met on August 1, 2018. At that time the Director provided the Grievor with the following options: transfer to an LCBO retail store (where the minimum availability requirements are Friday evenings, Saturdays and Sundays); request that he be permitted to use his vacation time, which requests the LCBO would grant; resign from his job with the City; or resign from his job with the LCBO. [10] The Grievor made use of vacation time to take a number of his Tuesday shifts off. Some of these shifts were days, but most were afternoons which did not conflict with his scheduled hours for the City job. As of his last day of work at the end of August he still had 6.75 unused vacation days left in his bank. [11] The Grievor called in sick and was absent from the following day shifts (8:30 a.m. to 5:00 p.m.) surrounding his scheduled Tuesday vacation days: August 13, August 15, August 20 and August 22, 2018. [12] Given the Grievor’s previous requests for day shift off to work at his other job and the intervening vacation time, the General Manager of the GTA Service Centre, - 4 - Dennis MacDonald, suspected that the absences were not, in fact, due to illness, as reported by the Grievor, but rather were for the purpose of working at his City job. Given his suspicions, on or about August 21, 2018, Mr. MacDonald engaged the services of a private investigator to engage in surveillance of the Grievor. The private investigator provided Mr. MacDonald with a report on August 22, 2018 which suggested the Grievor was working for the City on August 22, 2018. [13] By letter dated August 23, 2018, the Grievor was advised the LCBO was conducting an investigation into his absences from August 13 to August 22, 2018 and that it was suspected he was working at his other job on those dates. He was provided with the opportunity to provide an explanation in writing by August 27, 2018. [14] The Grievor was scheduled to work from 1:00 p.m. to 9:30 p.m. on Friday August 31, 2018. As a Friday before a long weekend, the minimum availability requirement applied. On August 29, 2018 the Grievor approached his Shift Manager and requested that his shift be changed to 5:00 p.m. to 1:30 a.m., stating he needed to look after his brother until his mother got home. His request was granted. [15] In the meantime, Mr. MacDonald had already arranged for the private investigator to conduct surveillance of the Grievor on August 31, 2018, as Mr. MacDonald suspected that the Grievor would be working at his City job on that date. The private investigator observed the Grievor working at his City job from approximately 7:00 a.m. to 3:00 p.m.. The Grievor was then observed attending the Dixie Outlet Mall and a Tim Hortons prior to reporting to work at the LCBO’s GTA Service Centre. The Grievor did not go home during this time to look after his brother. [16] After arriving at work at the LCBO on August 31, 2018, the Grievor worked, without incident, until approximately 9:30 p.m., at which time the Grievor reported that he was feeling sick and left work early. The Grievor’s early departure from work was reported to Mr. MacDonald, who promptly called the private investigator to request that the Grievor be surveilled. Mr. MacDonald was, again, concerned that the Grievor was not, in fact, sick, but rather his intention was to leave at his previously scheduled shift end time of 9:30 p.m.. - 5 - [17] The private investigator resumed surveillance of the Grievor after his departure from work and observed the following: • At approximately 10:03 p.m. - Upon the Investigator’s arrival at the Grievor’s residence, the Grievor’s vehicle was parked in the driveway along with two other vehicles. • At approximately 11:38 p.m. – A male and female attended at the Grievor’s residence in a red Dodge Challenger. • At approximately 12:04 a.m. – The male, female and Grievor exited the residence and drove off in the Dodge Challenger. • At approximately 12:44 a.m. – the Grievor was observed smoking at the Home Depot at Sherway Gardens Mall, after which they drove off and the Investigator lost surveillance • At approximately 1:55 a.m. – the Grievor appeared to be back home again [18] By letter dated September 6, 2018, the Grievor was relieved of duty and advised that the LCBO would also be conducting an investigation into his conduct on August 31, 2018 and, specifically, the allegations that: • The Grievor’s request for a shift change was to enable him to work at his other job and not to look after his brother; and, • That he left his shift not because he was sick, but for recreational/social purposes. In the letter, the Grievor was further advised that a meeting had been scheduled on Wednesday, September 12, 2018 at 5 p.m. to discuss this matter, as well as his absences from August 13 to August 22, 2018. [19] The Grievor attended the scheduled investigation meeting of September 12, 2018, along with his OPSEU Union Representative. In attendance for the LCBO were Dennis MacDonald and an HR Advisor. [20] With respect to his absences on August 13, 15, 20 and 22, 2018, the Grievor was asked whether he worked at his other job, to which the Grievor stated that he would not answer the LCBO’s questions until the LCBO told him what evidence it had. After the LCBO advised that it had arranged for surveillance which showed him working at his other job and after the Grievor took a break with his union representative, the Grievor then admitted that he had called in sick for his shifts on August 13, 15, 20 and 22 to work at his other job. - 6 - [21] With respect to his request for a shift change on August 31, 2018, the Grievor was asked whether the request was so that he could work at his other job on August 31st. The Grievor responded in the negative, stating that he did, in fact, watch his brother, sometime between 3 and 4 p.m., but he didn’t remember the exact time. After the LCBO advised that it had surveillance of him working at his other job, then going to the mall, then Tim Horton’s and then the LCBO, the Grievor admitted that he had requested the shift change to work at his other job. [22] Finally, with respect to leaving early on August 31, 2018, the Grievor advised that he went home for his stomach, and after he got home he took some Gravol and ginger ale, went to the washroom and he was fine. [23] The Grievor further advised that he got his other job because he is young and needed more money. When asked why he reduced his availability at the LCBO, including to take Saturdays and Sundays off, if he needed the money, the Grievor stated that he was trying to get a feel for his other job and that Saturdays and Sundays are his days off and he has family time at his house. He further confirmed that he worked 5 days a week Monday to Friday at his other job and that his other job was giving him more money. [24] By letter dated September 14, 2018, the Grievor’s employment was terminated by Mr. MacDonald. The letter recounts the facts set out above. It concludes as follows: Having reviewed all the information available to me regarding this matter, I have concluded that you were not absent from work on August 13, 15, 20 and 22, 2018 due to illness but rather called in sick to enable you to work at your other job. I have also concluded that you lied about the reason for your request for a shift change on August 31, 2018 and that you left work sick on August 31, 2018 when you were not, in fact, unable to work. You [sic] conduct as set out above is dishonest and reflects a lack of integrity and respect for the LCBO' s operational requirements and your coworkers. In addition, you were also dishonest at the meeting on September 12, 2018. Your actions amount to a serious breach of trust and after considering all the information available to me, I have concluded that your actions have irreparably damaged the employment relationship. As such, your services with the LCBO are terminated for just cause effective immediately. - 7 - Arguments [25] The Employer notes the main facts are not in dispute. The Grievor obtained a job with the City of Toronto which conflicted with his job with the LCBO. On August 13, 15, 20 and 22, 2018 he called in sick for his job at the LCBO and worked, during the same period of time, at his job for the City. On August 31, 2018 he requested a change in his shift at the LCBO, ostensibly so that he could care for his brother. The shift change was granted. Instead of taking care of his brother, he went to work at his job for the City. In the result, there is no dispute that the Grievor engaged in five separate acts of dishonesty. He then reported to work his rescheduled shift at the LCBO and left early claiming to be sick. The Employer notes there is a factual dispute with respect to whether that too was a lie, but urges me to conclude on a balance of probabilities that it was. Whether there were five incidents of dishonesty or six, the Employer argues discharge was justified. [26] The Employer argues that the Grievor engaged in this behaviour in order to obtain a benefit to which he was not entitled: time off from his job at the LCBO in order to work through his probationary period at his City job, a job which paid him more than his job with the LCBO. The Employer argues this constitutes knowingly falsifying information in order to obtain a benefit, the very definition of fraud. The Employer provided a number of decisions upholding discharge for dishonesty with respect to leave requests: Toronto (City) and TCEU, Local 416 (Walker), [2017] O.L.A.A. No. 367 (Sheehan) (Ontario); Toronto (City) and CUPE, Local 79 (Senior) (2019), 307 L.A.C. (4th) 219 (Sheehan) (Ontario); Sysco Food Services of Ontario and CAW-Canada, Local 414, [2004] OLAA No 429 (Gray) (Ontario); Ineos Nova Ltd. v. C.E.P., Local 914, (2010), 193 L.A.C. (4th) 241 (On Lab Arb) (Sheehan) (Ontario); OPSEU, Local 529 v Toronto Community Housing Corp, [2012] OLAA No 308 (Cummings) (Ontario); Essar Steel Algoma Inc., and USW, Local 2251 (A.S.) [2018] 136 C.L.A.S. 127 (Etherington) (Ontario); CUPE, Local 1587 and Carleton Manor Inc (MacDougald), Re, [2018] 140 CLAS 278 (NB); Re Sudbury General Hospital of Immaculate Heart of Mary and Canadian Union of Public Employees, Local 1023 (1991), 18 L.A.C. (4th) 346 (Musgrave) (Ontario); Lennox Industries (Canada) Ltd. v. U.S.W.A., Local 13571-30, [2000] O.L.A.A. No. 905 (Slotnick) (Ontario); Hamilton Health Sciences and CUPE, Local 4800 (Slomka), Re (2006) 86 C.L.A.S. 92 (Surdykowski) (Ontario); West Fraser Mills Ltd. v U.S.W.A., Local 1-417, [2006] B.C.C.A.A.A. No. 257 (Chertkow) (BC); Toronto (City) and TCEU, Local 416 (Covelli), Re, [2014] O.L.A.A. No. 425 (Sheehan) (Ontario); and Kennedy House Youth Services Inc. v. OPSEU, Local 585 (1996), 53 L.A.C. (4th) 54 (Picher) (Ontario). - 8 - [27] The Employer reviews the usual mitigating factors and argues they do not warrant the substitution of a less penalty. [28] The Union argues the Employer had opportunities to coach the Grievor with respect to the necessity of attending for his scheduled shifts but failed to do so. Instead, the Union argues, the Employer laid in wait and lulled the Grievor into a false sense of security. Further, the Employer did not engage in progressive discipline. While acknowledging the Grievor engaged in serious misconduct, the Union argues that it was not so serious as to warrant immediate dismissal. Indeed, the Employer’s own actions demonstrate that this is the case: the Grievor was not summarily terminated after the Employer learned of his behaviour, rather the Employer engaged in further investigation. [29] The lack of progressive discipline, the Union argues, is a fatal flaw. In support of this proposition it cites: Brown & Beatty, 7:4416; Canada Post Corp. v. C.U.P.W. (Walker), 33 C.L.A.S. 123, 38 L.A.C. (4th) 188 (Joliffe); Alcan Smelters & Chemicals Ltd. v. C.A.S.A.W., Local 1, [1991] B.C.C.A.A.A. No. 511, 23 L.A.C. (4th) 257 (Hope); and Jasper (Municipality) and CUPE, Local 1458 (Hart), 132 C.L.A.S. 244, 283 L.A.C. (4th) 27 (Sims). [30] In this case, there was no progressive discipline at all. The August 23, 2018 letter from the Employer to the Grievor was not a warning, rather simply part of its investigation. Rather than warning the Grievor that he was not entitled to use sick leave for the purpose of working another job, the Employer hired a private investigator. In the cases relied upon by the Employer, the grievor was always warned first. The breakdown in the employment relationship was avoidable and in part the result of the Employer’s failure to warn the Grievor his conduct was unacceptable. The Grievor was simply misguided in his use of sick time to attempt to manage his conflicting work obligations. If the Employer had advised him that sick time was not a category of leave which he could apply for this purpose, he would have stopped. [31] The Grievor received no monetary benefit from the Employer as a result of his conduct. There was no evidence of any impact on the Employer. [32] The Grievor did not lie or try to hide from the Employer the fact he had another job. Further, during the pre-discharge meeting he ultimately admitted his actions were - 9 - wrong during the pre-termination meeting and apologized for what had happened. The facts of this case therefore are analogous to those in A.U.P.E. v. Calgary Regional Health Authority, 77 C.L.A.S. 6, 126 L.A.C. (4th) 211 (Lucas) and U.F.C.W., Local 1977 v. Zehrs Markets, 46 C.L.A.S. 149, 60 L.A.C. (4th) 163 (Brent). [33] The Union argues the ASF leaves many questions unanswered. It asks that an adverse inference be drawn from the failure of the Employer to call Dennis MacDonald, the decision maker in this case. Reference was made to Dimplex North America Ltd. - Cambridge Division v. U.S.W.A., Local 8698, 2006 CarswellOnt 4186, [2006] L.V.I. 3649-7, 151 L.A.C. (4th) 443, 86 C.L.A.S. 23 (H.D. Brown) and Canada Post Corp. v. C.U.P.W. (Seymour), 1992 CarswellNat 1754, 25 L.A.C. (4th) 137, 26 C.L.A.S. 349 (Shime). [34] In any event, the Union argues there are mitigating factors which warrant reinstatement of the Grievor with a lengthy suspension substituted for the dismissal. [see pp. 36-37 of notes] [35] I have not set out the Employer’ reply arguments, but I have drawn upon them for the purposes of this decision. Analysis and Decision [36] As noted at the outset, ultimately there was no dispute that the Grievor misrepresented his reasons for needing to be absent from work on five separate occasions. On four of these, August 13, 15, 20 and 22, 2018, he claimed to be sick but was not. Rather he was working at his City job. On the fifth, August 31, 2018, he claimed he needed to look after his brother, was granted a change in his scheduled shift as a result, but did not in fact look after his brother. Rather, once again, he was working at his City job. [37] The only dispute is whether the Grievor was sick as he claimed when he left his rescheduled shift early on August 31, 2018. The Grievor’s evidence is that he was sick, went home, went to the bathroom, took some Gravol and drank some ginger ale, felt better, called some friends and went out. - 10 - [38] I did not find the Grievor a credible witness. His deceitful behaviour with respect to his reasons for needing to be absent from work on the five other occasions, while it did not occur before me, does not commend him as a person who can be relied upon to tell the truth until presented with compelling evidence that he has lied. However, in reaching the conclusion that the Grievor’s evidence cannot be believed, I rely principally on his testimony before me. [39] The Grievor was cross-examined about terms and conditions of employment with the LCBO which he had signed indicating he could not declare himself unavailable on Mondays, Tuesdays and Wednesdays. The Grievor refused to concede that being unavailable to work on the morning shifts was inconsistent with that commitment stating that he was available on the afternoon shifts. The Grievor resisted the suggestion that once he got his City job he never intended to report for his shifts at the LCBO on August 13, 15, 20 and 22, 2018. Rather he maintained that if he had got the help he sought from three levels of management, he would not have had to miss those shifts. Because he did not, he continued, he did what he thought was in his “best interests”, which was to call in sick. When asked if he considered the interests of the LCBO, he said he had but that his interests outweighed those of the LCBO. He refused to concede that he called in sick to avoid discipline, stating that he felt calling in sick was his “only option” or “best option”. Overall, while the Grievor was forthright on facts which were not in dispute, he was evasive and self-interested on key points which were in contention. In these circumstances I do not believe the Grievor’s evidence that he left work early on August 31, 2018 because he was sick. Rather, I am left with the distinct impression that once again he absented himself from his work due to reasons of self interest, although in this instance that was not to work at his City job but rather to go out with his friends. [40] Disbelieving the evidence of a witness on a fact normally amounts to no evidence from the witness on that fact. However, in this instance the Grievor was either too sick to work when he left his rescheduled shift on August 31, 2018 or not. Disbelieving his evidence that he was too sick to work invites, if it does not require, the conclusion that he was in fact able to work. [41] In any event there is circumstantial evidence which supports the same conclusion. The Grievor was well enough to work at his City job from 7:00 a.m. to 3:00 p.m. After he finished his work at his City job until he reported to work at 5:00 p.m. at the LCBO, he was well enough to hang out at a mall and coffee shop. From 5:00 - 11 - p.m. until 9:30 p.m., his original scheduled end of shift, when he left claiming to be sick, he was well enough to work at the LCBO. As of 11:38 p.m. he was well enough to receive friends at his home and by 12:04 a.m. he was well enough to go out with them. Further, he was well enough to remain out with those friends until 1:55 a.m., notwithstanding that his work day had commenced 19 hours before at 6:55 a.m. and he had worked over 12 hours between his two jobs on that day. In my view, on a balance of probabilities, the inference to be drawn from this circumstantial evidence is that the Grievor was also well enough to work at 9:30 p.m. on August 31, 2018 when he left his job at the LCBO, and not sick as he claimed. [42] The Employer cited a number of cases for the proposition that misrepresenting the reason for absence from work can constitute grounds for discharge. The Union did not really challenge this proposition. Rather, the Union sought to challenge the discharge on other bases, which I will address below. Accordingly, I do not find it necessary to review the cases relied upon by the Employer in support of its proposition. It suffices to say that I agree with the proposition for which they were offered. [43] The Union argues an adverse inference to be drawn from its “failure” to call the decision maker, Mr. MacDonald, as a witness. I disagree. The parties submitted an “Agreed Statement of Facts”. The ASF includes references to a number of documents, including the termination letter signed by Mr. MacDonald. The termination letter sets out in detail the reasons for the termination. During the hearing, counsel for the parties confirmed they were in agreement that the statements contained in documents referenced in the ASF would have been the evidence of the author of the document if called as a witness. Accordingly, Mr. MacDonald’s reasons for terminating the Grievor’s employment were in evidence. The Union could have required that the Employer call him as a witness to adopt the statements attributed to him by the ASF and be available for cross- examination. It did not. In these circumstances, the fact Mr. MacDonald was not called as a witness by the Employer does not provide a basis for drawing an adverse inference. [44] Dimplex is not on point. While the union in that case asserted in argument that an adverse inference should be drawn from the failure of the employer to call a certain witness, Arbitrator Howard D. Brown makes no reference to adverse inference in his reasons for decision. Rather, he decided the matter on the basis - 12 - that the only evidence led with respect to the incidents giving rise to the discipline was hearsay. [45] In C.U.P.W. (Seymour), Arbitrator Shime did draw an adverse inference from the failure of the employer to call a witness. As he explains, the unexplained failure of a party to call a witness within its control to give evidence with respect to a significant disputed fact gives rise to the adverse inference that the witness’ evidence would not have supported the position of the party in question. In this case, the facts on which Mr. MacDonald could give evidence were not in dispute, rather they were agreed. While that is sufficient to dispose of the argument, I would note that agreement also provides the explanation for the Employer’s decision not to call Mr. MacDonald. [46] I turn now to the Union’s argument that the ASF leaves many questions unanswered. In this case, the only issues were whether the Employer had cause for the discipline imposed and whether I should exercise my discretion to substitute a lesser penalty. This did not require the Employer to lead evidence to answer every question posed by the Union. [47] The Union asks why Mr. MacDonald engaged a private investigator to subject the Grievor to surveillance and why Mr. MacDonald chose discharge over some lesser form of discipline. The ASF provides answers to those questions, as set out above. Had the Union wished to challenge Mr. MacDonald on those answers it could have insisted he be produced for cross-examination. [48] The Union asks “why everything seemed so personal”. There is no evidence that it was. [49] The Union asks why the Employer scheduled the Grievor to work the 1:00 p.m. to 9:30 p.m. shift on August 31, 2018 when it “knew he could not make it” and then arranged for a private investigator to surveil him on that day. The short answer is the Employer was entitled to schedule the Grievor during that period of time as it fell within the minimum availability requirement. The Employer had made it quite clear that it was not prepared to waive those requirements in order to accommodate the Grievor’s job with the City. Mr. MacDonald’s reasons for arranging for surveillance are set out in the ASF. In short, the Grievor’s actions to that date caused Mr. MacDonald to suspect the Grievor would once again work at - 13 - his job with the City. Notwithstanding this, the Employer accommodated the Grievor when he asked for his shift to be changed so that he could take care of this brother. Unfortunately, this too turned out to be a lie. [50] The Union argues the Grievor did not understand he could not use sick leave for the purpose of working at another job and the Employer’s failure to ensure that he did means it has participated in any breakdown in the employment relationship. Leaving aside the merits of this argument, the evidence does not provide a basis for it. My notes contain no statement from the Grievor to the effect that he did not understand that he could not use sick leave for the purposes of working at another job. Even if he made such a statement, it is outweighed by the balance of his evidence, in which he was repeatedly asked why he called in sick in order to work at his City job. He responded on each occasion only that it was his “best option”. I conclude the Grievor was well aware that his use of sick leave to work at his City job was improper. [51] Nor do I accept the Union’s argument that the Employer’s failure to warn the Grievor that he could not use sick leave to work at his City job lulled him into believing that he could. The Grievor knew that he was not entitled to use sick leave for some other purpose. There is no basis for the suggestion that the Employer lulled him into thinking that he could use sick leave for the purpose of working at his City job. On the contrary, three levels of management expressly told him that he was required to honour his obligation to be available for work at the LCBO during the days he was going to work for the City. The Employer acted promptly when the private investigation report confirmed that the Grievor was working for the City on days that he claimed to be sick. [52] The Union argues the failure to follow progressive discipline is fatal in this case. I disagree. Absent a specific provision in the collective agreement, there is no requirement that an employer engage in progressive discipline in every case. As stated in the section of Brown & Beatty cited by the Union: Where a warning that repetition of an offence will result in serious disciplinary sanctions goes unheeded, an arbitrator may conclude that corrective measures are not likely to be effective and that the grievor will be unable to re-establish the employment relationship. Indeed, some acts of misconduct such as theft, intimidation and assault, sexual and other forms of harassment and abuse, conflicts of interest, drug offences, and the like, may be regarded as so serious and antithetical to a viable employment relationship that, even if the employer fails to warn an employee that serious disciplinary - 14 - sanctions will be imposed, the arbitrator may choose not to intervene. In other words, even a corrective approach to disciplinary penalties may not inevitably require that every first offence always be punished by a written warning, or that a short suspension be given before a longer one or a discharge is meted out. [Emphasis supplied.] [53] The cases provided by the Employer are authority for the proposition that dishonesty, particularly with respect to the use of sick leave, is the type of conduct which is so antithetical to the employment relationship to justify termination without prior progressive discipline. An employer must be able to trust statements by employees that they are unable to work due to illness. The alternative would result in otherwise unnecessary and intrusive demands for medical notes. [54] Consideration of the cases relied upon by the Union on this point does not change this conclusion. [55] In C.U.P.W. (Walker), the grievor had falsified his time cards, but Arbitrator Jolliffe found the practice of doing so was so widespread as to amount to condonation by the employer. As such it was not the kind of misconduct that could be considered as “so serious and antithetical to a viable employment relationship” that progressive discipline is not required. Further, Arbitrator Joliffe commented that another “very serious weakness” of the employer’s case was that there was “usually” evidence of progressive discipline. He did not suggest that evidence of progressive discipline was required in every case. [56] In Alcan Smelters the employer had failed to follow its own written “guide” setting out defined progressive discipline steps for certain specific offences. The guide was of long standing application. The offences are not identified in the decision, but it appears they included leaving work early without permission, the infraction committed by the grievor. The employer had failed to discipline him with respect to leaving work early on a few prior occasions and had then jumped to a higher level of discipline than that specified in the guide. Arbitrator Hope noted (at para. 27): The principle of progressive discipline that has particular application in this dispute is the requirement for consistency in the progression of penalties. Where, in effect, infractions are excepted from the progression, arbitrators perceive a potential to lull employees into a false sense of security. That is the pattern raised in issue in this dispute. - 15 - There was no suggestion in Alcan Smelters that the steps in the guide, and by extension progressive discipline, were to be followed with respect to all types of infractions. [57] The Union cites paragraphs 74 and 75 of Jasper in support of its contention that progressive discipline is required prior to termination of employment. These paragraphs constituted part of the argument of the union in that case. That argument was rejected by Arbitrator Sims at paragraph 85: Arbitrators have long recognized, as the Employer argues, that progressive discipline is not a universal right, and that some offences, even with no prior record, demand termination. [58] The Union argues that in each of the cases relied upon by the Employer, a meeting was held to confront the employee with the allegations prior to termination, often with a prior warning. The Union argues this was not done in this case. [59] Assuming without deciding this is a meaningful distinction, this argument is not supported by the evidence. By letter dated August 23, 2018 the Grievor was advised the Employer suspected he had worked at his other job on the four days and that his absence from work “were not due to medical reasons as you have represented”. The letter also advised him that the Employer was considering whether to take disciplinary action against him. While it is correct, as the Union argues, that this letter did not constitute a warning in the formal disciplinary sense, it did constitute notice that the Employer considered absence from work other than for reasons represented could constitute grounds for discipline. Notwithstanding this notice, the Grievor engaged in essentially the same conduct on August 29, 2018 when he sought and was granted a change in shift of his scheduled shift for August 31, 2018 from the morning to the afternoon so that he could look after his brother. Once again his reason for not being able to work the morning shift with the LCBO was not as he represented. After the Grievor reported to work for the afternoon shift, he claimed to be sick and went home. Yet again, his reason for not being at work was not as he represented. Rather, he went out with friends. In the result, having been given express notice by the Employer that it considered absence from work other than for the reasons represented constituted grounds for discipline, the Grievor engaged in that same behaviour twice. Further, a meeting was scheduled and held with the Grievor on September 12, 2018 to confront him - 16 - with all of these allegations prior to the termination of his employment on September 14, 2018. [60] The Union argues the Employer’s own actions belie its assertion that the conduct was so serious as to warrant discharge. The Employer, the Union argues, did not summarily fire the Grievor but rather permitted him to continue to work. This assertion is not supported by the evidence. The Employer acted expeditiously given the nature of the allegations and its obligations under Article 27.3 of the collective agreement. [61] In the result, I conclude the Employer had just cause to terminate the Grievor’s employment. [62] I turn now to consider whether there are mitigating circumstances which would warrant the substitution of a lesser penalty. I agree with the Employer that there are not. [63] There is no credible basis for concluding the Grievor misunderstood his obligation to attend work as required and not to misrepresent the reasons for any absences. There is no evidence to suggest that he was unable to understand that his conduct was wrong. His actions were not impulsive, rather they were repeated. The Grievor did not frankly acknowledge his misconduct. Rather, during the investigation meeting he would not answer the allegation that he was not sick August 13, 15, 20 and 22, 2018 but rather had worked at his City job until told the evidence against him. He then repeated this behaviour in denying that he had requested the shift change on August 31, 2018 not to look after his brother, as he had represented, but rather to work at his City job until told of the evidence against him. He never acknowledged that he was not in fact sick when he left work early on his rescheduled shift on August 31, 2018 and indeed lied to me, as I have found, in maintaining that he was. [64] The Grievor was clear that he placed his best interests over that of the Employer. He is, of course, entitled to do so. But he is not entitled to maintain his employment when this is accomplished by lies and deceit. His propensity to put his own interests ahead those of the Employer through the use of lies and deceit leaves me with no confidence that his conduct would change in the future if reinstated. - 17 - [65] For all of the foregoing reasons, the grievance is denied. Dated at Toronto, Ontario this 21st day of December, 2020. “Ian Anderson” ________________________ Ian Anderson, Arbitrator