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HomeMy WebLinkAbout2019-0220.Frater.23-02-09 DecisionCrown Employees Grievance Settlement Board Suite 600 180 Dundas St. West Toronto, Ontario M5G 1Z8 Tel. (416) 326-1388 Commission de règlement des griefs des employés de la Couronne Bureau 600 180, rue Dundas Ouest Toronto (Ontario) M5G 1Z8 Tél. : (416) 326-1388 GSB# 2019-0220; 2019-2628 UNION# 2019-5112-0047; 2020-5112-0001 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN Ontario Public Service Employees Union (Frater) Union - and - The Crown in Right of Ontario (Ministry of the Solicitor General) Employer BEFORE Tatiana Wacyk Arbitrator FOR THE UNION Megan Phyper Dewart Gleason LLP Counsel FOR THE EMPLOYER Julia Evans Treasury Board Secretariat Legal Services Branch Senior Counsel HEARING December 5, 2022 and January 26, 2023 - 2 - Decision [1] The Grievor challenges her discharge from the Toronto South Detention Centre (TSDC) for alleged sick leave abuse. Specifically, the Grievor is alleged to have been paid for working at another employer for the same periods of time she collected sick leave benefits at the TSDC. [2] This decision deals with a timeliness motion brought by the Union. It maintains that as early as May/June 2017, the Employer had sufficient information to alert it to the fact that, in addition to working at TSDC, the Grievor was working for another employer, Rouge Valley Health System, (now Lakeridge Health Corporation, referred to as “Lakeridge Health” going forward), was a member of Ontario Nurses’ Association (“ONA”), another union, and held two positions. [3] The Union submits the Employer’s failure to investigate the matter until October 2019 was prejudicial, as it was difficult for her to respond to allegations dating back to 2015 and 2016. [4] Accordingly, the Union submits I ought to find the discharge void ab initio due to the Employer’s delay in imposing it. [5] The Employer submits that prior to October 2, 2019, it had insufficient information to be alerted to any misconduct by the Grievor in her employment at the TSDC. It maintains that as soon as it became aware of the alleged misconduct, it acted immediately. [6] The Employer further submits the Grievor experienced no prejudice, as by the time she was confronted with the investigation leading to the termination of her employment from TSDC, she had dealt with the issue in the context of her termination grievance at Lakeridge Health; and was in the process of dealing with the issue in a Discipline Hearing at the College of Nurses (“CNO”), as well as in a separate proceeding, which concluded at the Human Rights Tribunal of Ontario (“HRTO”) in November 2020. Determination [7] I find that there was no failure to investigate the matters which led to the Grievor’s termination in a timely manner. Rather, I find the Employer acted immediately once it was aware of the Grievor’s alleged conduct. - 3 - [8] Nor do I find the passage of time between the events at issue and the investigation prejudiced the Grievor’s ability to respond to the allegations. [9] My reasons are set out below. EVIDENCE: [10] I heard the evidence of two Employer witnesses. [11] Their evidence in-chief was entered via will-say statements and supplemented with via voce evidence, both in chief and in cross-examination. Their testimony is set out below. James Cheng [12] Mr. Cheng has been employed by the Treasury Board Secretariat since 2014. From 2015 to 2020/21, he was an Employee Relations Advisor, providing advice on employee relations matters to the Toronto South Detention Centre. [13] On or around May 25, 2017, TSDC was served with a “Summons to Witness” (“Summons”) with respect to a grievance arbitration involving the Grievor and Lakeridge Health, scheduled for a hearing on June 1, 2017. It was addressed to the Human Resources Manager, or Authorized Individual. The Summons identified Lakeridge Health as the “Employer”, ONA as the “Union”, and Ms. Frater as the “Grievor”. [14] The Summons stated: YOU ARE REQUIRED TO ATTEND TO GIVE EVIDENCE before a Board of Arbitration at the hearing of this matter on Thursday, June 1, 2017 at 10:00 a.m., at Durham Reporting - 12 Stanley Court, Whitby, Ontario LlN 8P9 and to remain until your attendance is no longer required. YOUR ARE REQUIRED TO BRING WITH YOU and produce at the hearing the following documents and things: all documents including time sheets, scheduling records, human resources employee file, and including notes, memoranda, invoices, tape records, electronic mail records or any other records from yourself, agendas or minutes of meetings or any other records whatsoever that you made, received or have in your possession or control and any other evidence, documentary or otherwise, with respect to Ms. Tara Frater. - 4 - [15] Mr. Cheng testified he is familiar with such summons as TSDC has received them for various legal proceedings such as insurance disputes, where it has been required to provide attendance, schedule, and accommodation documents. The only difference in this instance was that this involved a grievance process. However, he noted the TSDC has summoned third parties to get documents for its own grievance procedures. [16] Following TSDC’s receipt of the Summons, Mr. Cheng spoke with Stephen Shore, counsel for Lakeridge Health, on May 25, 2017, in order to obtain clarification regarding the scope of the summons and to determine whether he had the Grievor’s consent to disclose the records prior to the grievance hearing scheduled June 1, 2017. Mr. Shore indicated they were seeking to obtain attendance records, and would be in touch. [17] On May 30, 2017, Mr. Cheng received an email from Rebecca Lee Birtwistle, counsel for ONA, representing the Grievor in respect of grievances she had filed with Lakeridge Health. In that email, Ms. Birtwistle provided the Grievor’s signed consent to the disclosure of the requested documentation. [18] On May 30, 2017, Mr. Cheng received a further email from Mr. Shore, confirming the Summons was still in place, but that if the documentation provided was satisfactory, attendance at the hearing would not be required. [19] On May 31, 2017, Mr. Cheng sent a responding email to Mr. Shore and Ms. Birtwistle, providing them with the Grievor’s schedule from the end of 2015 to May 31, 2017, as well as information with respect to deciphering the schedule, and asking if someone from TSDC was required to attend the hearing. [20] Also on May 31, 2017, Mr. Shore advised, again by email, that Lakeridge Health was seeking documentation to assist in understanding the Grievor’s restrictions for the period she was performing modified work or was on medical leave. [21] On May 31, 2017, Mr. Cheng received an email from Ms. Birtwhistle, seeking clarification of some of the abbreviations on the Grievor’s schedule. - 5 - [22] In response, on May 31, 2017, Mr. Cheng sent an email to Mr. Shore and Ms. Birtwistle, providing them with the Accommodation Report for the Grievor, and advising that the Employer was continuing to work to provide further payroll documentation. [23] Also on May 31, 2017, Mr. Shore advising Mr. Cheng he was not required to attend pursuant to the summons for Thursday, June 1, 2017. [24] On June 8, 2017, Mr. Cheng sent an email to Mr. Shore and Ms. Birtwistle providing them with the additional payroll documents for the Grievor, including excel spreadsheets from TSDC’s payroll system concerning her pay and absence/STSP usage and her schedule going back to January 2015. [25] Mr. Cheng conceded, in cross-examination, that given the documentation requested, the hearing appeared to be about something that required the Grievor’s timesheets, including for the periods during which she performed modified work; as well as her medical restrictions and accommodations; and the period she was on medical leave. [26] Mr. Cheng testified he did not initiate an investigation as a result of these exchanges, as at no time during his communications with Mr. Shore or Ms. Birtwhistle, did either of them provide any additional information with respect to [27] the subject matter of the grievance to which the Summons pertained. In particular, neither Mr. Shore nor Ms. Birtwhistle provided Mr. Cheng with any information to suggest the subject matter of the grievance directly related in any way to the Grievor’s conduct at TSDC. [28] Mr. Cheng maintained that that time, the Employer did not have any information to suspect abuse by the Grievor in relation to sick leave/benefits at TSDC in the manner that was subsequently described in the College of Nurses (“CNO”) Notice of Hearing, referenced below. [29] Mr. Cheng conceded, again in cross-examination, that he knew at the time, that the Grievor had been employed full time at the TSDC for at least two years. He also conceded that Lakeridge Health was identified as her employer on the Summons, but pointed out it was not clear in what capacity or how her employment overlapped with that at TSDC. - 6 - [30] Mr. Cheng also testified the TSDC has employees, particularly in the nursing field, that have part-time or casual employment with other employers. Consequently, it is not unusual for them to be a member of another union. [31] On October 2, 2019, Mr. Cheng was attending the GSB with Mary Dwyer, then Manager of the Health Care Unit at TSDC. They were attending in relation to a grievance brought by the Grievor, of a 20-day suspension that had been issued to the Grievor in respect of the death of an inmate. [32] At approximately 10:45 a.m., Ms. Dwyer searched the Grievor’s name on the CNO website. The search resulted in Ms. Dwyer finding a Notice of Hearing, which she and Mr. Cheng reviewed, that contained a number of allegations with respect to the Grievor’s conduct at both Lakeridge Health and TSDC, including a series of occasions during which she took unpaid sick leave, paid sick leave and/or unpaid emergency time at Lakeridge and worked at TSDC. It also referenced a series of occasions on which the Grievor was alleged to have called in sick at TSDC, for which she received benefits, and also worked at Lakeridge Health for which she received pay. [33] Mr. Cheng testified that at the time, neither he nor Ms. Dwyer had any knowledge of the allegations related to sick leave and time/benefits fraud in relation to the Grievor’s work at TSDC and/or Lakeridge Health. [34] The Notice of Hearing also set out allegations related to the Grievor’s conduct in relation to the care provided to two clients at TSDC and in relation to language that she used in an email that she had sent to her TSDC colleagues on or around May 1, 2017. The Employer did have information with respect to those allegations as they related to the Grievor’s conduct at TSDC. [35] Mr. Cheng has been advised and believes that at the time the Notice of Hearing was discovered, the Grievor had not advised the Employer of the allegations against her by the CNO. [36] Further, at no time after Mr. Cheng had provided the requested documentation to Mr. Shore and Ms. Birtwhistle, did he or TSDC ever receive any information from them with respect to the grievance that was the subject of the Summons. - 7 - [37] Moments after reviewing the Notice of Hearing, at approximately 10:59 a.m. on October 2, 2019, Mr. Cheng sent an email to Superintendent Donata Calitri-Bellus, copying Deputy Superintendent, Administration, Vicki Robertson; Deputy Superintendent, Administration Angela Cicak; and, Ms. Dwyer, to advise of what they had found on the CNO website. He attached a copy of the Notice of Hearing, for reference. Mr. Cheng recommended they discuss next steps, as he was of the view the allegations of sick leave and time/benefits fraud were serious. [38] Superintendent Calitri-Bellus scheduled a meeting for 3:00 pm the same day, October 2, 2019, to debrief, and discuss next steps in handling the sick leave and time/benefits fraud allegations related to the Grievor. In attendance were Superintendent Calitri-Bellus; Deputy Superintendent Robertson; Ms. Dwyer; and, Mr. Cheng. [39] On October 3, 2019 at 2:50 p.m., Mr. Cheng received a meeting invitation from Deputy Superintendent Robertson for a teleconference with Deputy Superintendent Robertson; Superintendent Calitri-Bellus; Regional Director Lou Ann Loucier; and, Provincial Health Care Manager Linda Ogilvie, to discuss the issue. [40] At 3:02 p.m. that same day, Mr. Cheng sent an email to the meeting invitees, attaching draft documentation, including a letter requesting an Occurrence Report from the Grievor, a letter of suspension of the Grievor pending investigation and a letter requesting documentation from the Grievor, for discussion at the meeting. [41] On October 3, 2019, at 4:41 p.m., Mr. Cheng sent an email to Deputy Superintendent Operations, Susan Hullah, copying Superintendent Calitri-Bellus; Deputy Regional Director Doug Barker; and, Deputy Superintendent Robertson, attaching draft documentation with respect to a request for an Occurrence Report from the Grievor; suspension of the Grievor pending investigation; and, a notice of investigatory meeting/request for documents. [42] On or around October 3, 2019, Deputy Regional Director Barker was assigned to conduct a fact-finding into the Grievor’s actions and the allegations of being absent/utilizing sick credits at TSDC while working at Lakeridge Health. - 8 - [43] On October 3, 2019, Deputy Superintendent Hullah and Deputy Superintendent Jim Aspiotis met with the Grievor. She was directed to write an Occurrence Report, which she filled out at the meeting. It stated: “I do not know what shifts I’ve worked or did not work. I cannot provide you with any information at this time”. Mr. Cheng conceded that at that time, the Grievor was being asked to respond to allegations of what had occurred in 2015 and 2016, but pointed out she was being asked about conduct regarding which she would be fully aware. [44] Also at that meeting, the Grievor was suspended with pay pending investigation, and notified she was required to attend an investigatory meeting and provide requested documents by October 8, 2019. Deputy Superintendent Hallah provided the Grievor with two letters. [45] The first letter advised the Grievor that the Employer was investigating a matter concerning her on and off duty conduct and allegations related to her employment at TSDC and her prior employer, Lakeridge Health. The letter advised her of an investigative meeting, which was scheduled for October 8, 2019 and asked the Grievor to bring certain documents to the meeting. [46] In the second letter, Deputy Superintendent Hullah directed the Grievor to provide an Occurrence Report identifying all other places she had worked since becoming a regular employee with the Employer in July 2014. She further directed the Grievor to provide an Occurrence Report in response to the allegations that were set out in the CNO Notice of Hearing relating to sick leave and time/benefits fraud. [47] On October 8, 2019, an investigatory meeting was held at the TSDC with the Grievor; Sergeant Travis Williamson; Deputy Regional Director Barker; and the Grievor’s union representative, Alistair Riley. [48] On October 22, 2019, Deputy Regional Director Barker wrote to the Grievor and provided her with a final opportunity to provide the requested documents by October 25, 2019. [49] In the last two requests for documents, the correspondence from the Employer state: If you are unable to provide the above-requested information and documentation to the Employer, you may provide the Employer with express written and signed consent for Lakeridge Health and any other relevant employer to disclose such records to the Employer. - 9 - [50] However, the Grievor provided neither the documentation/information nor the consent permitting the Employer to acquire the documentation directly. [51] On November 5, 2019, the TSDC requested records from Lakeridge Health in relation to the allegations set out in the October 3, 2019 letter. The TSDC asked for a response by November 12, 2019. A response from Lakeridge Health was not received. [52] On December 5, 2019, Deputy Regional Director Barker prepared a Fact Finding Report with respect to the Grievor. [53] On December 5, 2019, Deputy Superintendent Administration, Jim Aspiotis, wrote to the Grievor advising her that she was required to attend an allegation meeting on December 9, 2019, to respond to the allegations. [54] The December 9, 2019 meeting was rescheduled to December 17, 2019 at the Grievor’s request. [55] On December 17, 2019, an allegation meeting was held at the TSDC with the Grievor; Jason Groeneveld, union representative; and, Deputy Superintendent Administration Aspiotis, to provide the Grievor with an opportunity to respond to the allegations set out in the letter of December 5, 2019. [56] On January 10, 2020, Deputy Superintendent Administration Aspiotis advised the Grievor by letter that she was required to attend a meeting, which could lead to discipline, on January 15, 2020. [57] On January 15, 2020, Deputy Superintendent Administration Aspiotis sent a letter to the Grievor dismissing her from employment for cause on the basis that all of the allegations had been substantiated and that the seriousness of the conduct warranted dismissal. Mary Dwyer [58] Ms. Dwyer was the Health Care Manager at TSDC from February 2014 to September 2020, when she retired. - 10 - [59] The Grievor reported to the Clinical Manager, who in turn reported to Ms. Dwyer, who had oversight of nursing staff at the facility. [60] Ms. Dwyer testified she was aware the Grievor was in the “Attendance Support Management Program” due to attendance issues, and that during 2015 and 2016 she had requested and been assigned the night shift as an accommodation. However, Ms. Dwyer indicated this was dealt with by the Staff Services and Accommodations Department, and she was unaware of any dates or details. [61] On or around May 25, 2017, Ms. Dwyer was informed by Mr. Cheng, in his capacity of Employee Relations Advisor, of the Summons served on TSDC with respect to the grievance arbitration between the Grievor and Lakeridge Health. [62] Ms. Dwyer indicated she believes she was aware, prior to May 2017, that the Grievor had other jobs, but was not sure she knew Lakeridge Health was one of them. [63] At Mr. Cheng’s request, Ms. Dwyer obtained a copy of the Grievor’s schedule from the end of 2015 to May 31, 2017 from the scheduling staff in the Health Care Unit and provided it to him. [64] Ms. Dwyer indicated she had no information regarding the subject matter related to the request, but it did occur to her that it might be in relation to attendance and/or time theft, given what was sought. She also speculated that it might be regarding scheduling or accommodation issues at Lakeridge Health. Consequently, she asked Mr. Cheng if he could obtain any other details about why Lakeridge Health was requesting this information. However, Mr. Cheng advised her this was not possible. [65] Ms. Dwyer indicated this was her only role with respect to the Summons, and she did not have any contact with anyone else with regard to the matter. Nor did she have any concerns or suspicions regarding the Grievor’s employment at TSDC. If she had, she would have conducted her own investigation. [66] Consistent with Mr. Cheng’s evidence regarding his and Ms. Dwyer’s attendance at the GSB on October 2, 2019, Ms. Dwyer described her search of the CNO website for the Grievor’s name, at approximately 10:45 a.m. that morning. She indicated she often does this when hiring a new employee or when issues have arisen regarding an employee. - 11 - [67] Ms. Dwyer testified she did not search the CNO website when advised of the Summons from Lakeridge, because similar requests for schedules are received from other employers “all the time”. She indicated those usually involve employees requesting an accommodation they may not have at TSDC, or a scheduling issue at the other employer. [68] Ms. Dwyer reiterated Mr. Cheng’s evidence regarding the Notice of Hearing she found that contained a number of allegations against the Grievor with respect to the Grievor’s conduct at both Lakeridge Health and at TSDC, including a series of occasions during which she took unpaid sick leave, paid sick leave and/or unpaid emergency time at Lakeridge Health and worked at TSDC. It also included a series of occasions during which the Grievor was alleged to have called in sick at TSDC but worked at Lakeridge Health and was compensated by both. [69] As indicated earlier, the Notice of Hearing further set out allegations related to the Grievor’s conduct in relation to the care provided to two clients at TSDC and in relation to language that she used in an email that she had sent to her colleagues at TSDC on or around May 1, 2017. [70] Ms. Dwyer also indicated the Employer was aware of the allegations related to the care provided to two clients at TSDC and the May 1, 2017 email. However, she indicated that at the time she had no knowledge of the allegations related to sick leave and time/benefits fraud in relation to the Grievor’s work at TSDC and/or Lakeridge Health. [71] Ms. Dwyer reiterated Mr. Cheng’s evidence that at approximately 10:59 a.m. on October 2, 2019, Mr. Cheng sent an email to Superintendent Donata Calitri-Bellus, copied to those listed above, advising what Ms. Dwyer had found and suggesting a discussion of next steps. [72] While Ms. Dwyer attended the meeting that afternoon scheduled by Superintendent Calitri- Bellus, she had no further involvement in the matter. THE PARTIES’ POSITIONS: [73] There was no dispute that in determining whether discipline ought to be vitiated on the basis of delay, consideration must be given to: the length of the delay; the reasons for the delay; and the impact of the delay. (see paragraph 26 of A.B.G.W.I.U. v AFG Industries Ltd., 1998 CarswellOnt 5647) - 12 - [74] The parties made comprehensive submissions regarding all three elements. Union [75] The Union relied on the following authorities: Miracle Food Mart v U.F.C.W., Locals 175 & 633, 1988 CarswellOnt 3789; OPSEU (Dannenberg) v The Crown in Right of Ontario (Ministry of Correctional Services), GSB No. 414/89 (Dissanayake); Manitoba Pool Elevators Brandon Stockyards v U.F.C.W., Local 832, 1993 CarswellMan 580; University of Ottawa v I.U.O.E., Local 796-B, 1994 CarswellOnt 1292; OPSEU (Bonacci) v The Crown in Right of Ontario (Ministry of the Solicitor General & Correctional Services), GSB No. 1923/96 (Dissanayake); A.B.G.W.I.U. v AFG Industries Ltd., 1998 CarswellOnt 5647; Ontario Public Services Employees’ Union (Group Grievance, Sammy et al) v The Crown in Right of Ontario (Ministry of Correctional Services), 2002 CanLII 45769 (ON GSB); C.U.P.E, Local 500 v Winnipeg (City), 2003 CarswellMan 363; Ontario Public Service Employees Union (Giraudy et al) v The Crown in Right of Ontario (Ministry of Community Safety and Correctional Services), 2009 CanLII 59465 (ON GSB) UFCW, Local 1400 and Affinity Credit Union (Mombo-Makay), Re, 2019 CarswellSask 378; Ontario Public Service Employees Union (White) v The Crown in Right of Ontario (Ministry of the Solicitor General), 2020 CanLII 63535 (ON GSB); Ontario Public Service Employees Union (Valovich et al) v The Crown in Right of Ontario (Ministry of the Solicitor General), 2020 CanLII 83868 (ON GSB) and OSSTF v Thames Valley District School Board, 2012 CanLII 51979. [76] The Union pointed out the Summons received by the Employer May 2017 identified Lakeridge Health as the Grievor’s employer, and indicated she was represented by ONA. This was again made clear to Mr. Cheng in his subsequent communications with counsel for Lakeridge Health and ONA counsel. [77] Further, the time period for which the Grievor’s attendance records, schedules, medical leaves, and restrictions/accommodations etc. was sought, overlapped with the period during which the Grievor was a full-time employee with TSDC. [78] While the Employer’s evidence was that it was likely already aware the Grievor had employment outside of her full-time job at TSDC, the Union maintained the nature of the documents and information sought ought to have alerted this Employer to the existence of - 13 - “some” issue regarding allegations of absenteeism and sick fraud at Lakeridge Health, and that the Grievance had something to do with the Grievor’s employment at TSDC. [79] Accordingly, the Union argued the Employer ought to have been suspicious regarding the possible existence of similar issues related to the Grievor’s employment at TSDC, and ought to have investigated to determine if that were the case. Yet no investigation was conducted, nor information sought from either Lakeridge Health or ONA counsel, or even the Grievor herself. [80] The Union also relied on the following reference at paragraph 12 in Winnipeg (City), supra: The Mitchnick and Etherington excerpts refer to the "widely accepted arbitral principle that once the employer has learned of employee misconduct, or ought to have known of it, any delay in imposing punishment may render the discipline void". [emphasis added] [81] In that regard, the Union argued the phrase “ought to have known” means the Employer had an obligation to investigate when it had reasonable notice that some misconduct had arisen in relation to the Grievor’s employment at Lakeridge Health. The Union maintained that in the circumstances, some knowledge, (presumably of the Grievor’s misconduct), ought to be imputed to the Employer. [82] The Union submitted that in the circumstances, the Employer has the evidentiary burden to explain why it did not act sooner. (see Affinity Credit Union, supra para 138) Specifically, the Union submitted that unlike the cases relied on by the Employer, where there was no reasonable way to know of the misconduct (see Thames Valley, supra) in this instance Mr. Cheng could have asked counsel for Lakeridge or ONA, or the Grievor herself, why TSDC was being asked for the documents. [83] The Union submitted the Employer’s failure to conduct any investigation until October 2019, when the Notice of Hearing at the CNO was discovered by Ms. Dwyer, constituted approximately a 2.5 year delay, resulting in significant prejudice to the Grievor. [84] The Union maintained that even if I did not find actual prejudice, there was inherent prejudice to the Grievor (see reference to AGF Industries, supra at paragraph 23). Specifically, the Union submitted the allegations which the Grievor must answer involve routine matters such as - 14 - shifts and scheduling – subjects that concern normal every day work events, such as those considered by Arbitrator Petryshen in his decision in White, supra. [85] In White, the Grievor was confronted with allegations regarding shifts she had worked more than 2.5 years earlier, with no prior notice she might be disciplined for those events. [86] At paragraph 36, Arbitrator Petryshen dismissed the allegations on the basis of delay: [36] The prejudicial effect of the delay is significant for allegation 10. Allegation 10 is about whether Ms. White left her post and the institution without permission on the 20 relevant shifts. This is a subject that concerns normal every day work events. Not surprisingly, Ms. White could not recall what her assigned duties were for those shifts. Although she was definite that she did not leave work on those days without permission, she was unable to recall who her Unit Manager was on September 19, 2013, and on the other dates. Given the excessive delay, Ms. White was put in a position where it would have been very difficult to recall the kinds of matters necessary to convincingly support her claim that she left those shifts with permission. It would therefore be unfair to permit the Employer to discipline Ms. White for allegation 10 because of its delay in initiating the discipline process. … [87] The Union submitted that the unreasonableness of requiring the Grievor to recall routine issues of timing and specific shifts after approximately 2.5 years of delay should lead to her termination being declared null and void. (see also Sammy et al, supra at the top of page 5) [88] Finally, the Union submitted the Grievor has been prejudiced by the lengthy delay, as despite the termination of her employment at Lakeridge Health, nothing happened at TSDC for approximately 2.5 years, leading her to conclude her conduct was condoned, or at least “put in the past” or forgiven in some way. This type of prejudice was described by Vice Chair Harris in Sammy et al, supra at the bottom of page 71: Another category of cases is where the grievor and employer know of the unacceptable behaviour yet the employer does nothing about it or otherwise leads the employee to the conclusion that the behaviour will be tolerated or forgiven. In those cases the employer's condonation of the behaviour is itself unreasonable delay if discipline is subsequently imposed. The condonation may be proven by evidence of the fact, or it may be inferred as inherent in the circumstances. - 15 - (see also Miracle Food Mart, supra at paragraph 13) [89] While the Union conceded the parties had been able to create a comprehensive document brief and Agreed Statement of Fact with regard to the specific allegations in this Grievance, the Union pointed out the Grievor would still have to rely on her memory regarding specific dates and shifts and for example, reasons she took sick leave. [90] Further, while the Union also acknowledged the Grievor had been involved in litigation regarding these issues both in the context of the Grievor’s termination grievance at Lakeridge Health and at the CNO, it pointed out there was no information before us regarding the substance of those hearings. [91] Union also noted that while the Grievor had proceeded again Lakeridge Health with a complaint before the HRTO, the substance of the complaint was related only to managerial behaviour and allegations of micromanaging. Employer [92] The Employer relied on: Brown, D.J.M., Beatty, D.M., and Beatty, A.J. (Eds), (2019) Canadian Labour Arbitration 5 at Chapter 7.7; OPSEU (White) v Ontario (Solicitor General), supra; Stanley v The Crown in Right of Ontario (Ministry of the Solicitor General); PSGB#P-2021- 0974, Smeenk, November 16, 2022; Barnes and Ontario (Solicitor General) 2022 CanLII 60101; OSSTF v Thames Valley District School Board, supra; OPSEU (Bonacci) v The Crown in Right of Ontario (Ministry of the Solicitor General & Correctional Services), GSB #1923/96, (Dissanayake), April 9, 1997; Metropolitan Toronto (Municipality) v CUPE Local 79, 78 LAC (4th) 1; Unifor Local 2003 v Redpath Sugar Ltd. (Jacques Grievance) 282 LAC (4th) 333 (MacDowell); Canada Post Corp. v Canadian Union of Postal Workers (Savu Grievance), 249 LAC (4th) 201 (Swan); and, Frater v Lakeridge Health Corporation, 2020 HRTO 876 (CanLII). [93] The Employer pointed out that it is generally accepted the “clock” starts running once an employer has information about an employee’s conduct that could lead to discipline. (see Barnes, supra at para. 69) [94] Accordingly, the Employer cannot be responsible for any delay that occurred during the period in which the Employer had no basis on which to act. - 16 - [95] In Thames Valley, supra, the discipline was issued approximately four years after the alleged event of personal misconduct, and was challenged on that basis. There was no dispute the employer knew or ought to have known about the alleged conduct any earlier than it did, or that it acted without delay once it was aware of the alleged conduct. In that instance, Arbitrator Cummings stated: 12. …In my view it would be inappropriate to count any period before the Board knew or ought reasonably to have known about the allegations. To put the point rhetorically, how can the employer be held responsible for delay in a time period when it had no basis to act? Or, to put it as counsel for the employer did, there is no legal basis to grant immunity just because the events happened years ago and the employer was in no position to know. [emphasis added] 13. Since there was no delay once the employer knew about the events, I see no basis to decline to enquire into the matter on the basis of delay. [96] The Employer argued that in this instance, it had no duty to investigate, simply because Ms. Dwyer had suspicions regarding what might have occurred at Lakeridge Health. Given the request for accommodation-related information, it was possible that was the substance of the dispute. [97] Accordingly, the Employer pointed out there was nothing in the Summons that could constitute reasonable notice of misconduct at TSDC. Accordingly, the Employer had no information regarding any misconduct at TSDC, and nothing to base inquiries on or to investigate. [98] Further, the Employer submitted arbitrators have encouraged employers to exercise caution before subjecting employees to investigations. (See Bonacci, supra at page 9). [99] The Employer also relied on Arbitrator Simmons’ decision in City of Toronto, supra in support of its position that launching an investigation on the basis of the Summons alone would have been precipitous and inappropriate. [100] In City of Toronto, the grievor was involved, with other staff, in an incident which occurred on February 18, 1994, and ultimately resulted in the death of a hostel resident. No investigation was conducted, and no disciplinary action contemplated. However, in late 1995 an inquest was scheduled, and it was in the context of preparation for that inquest that the employer first saw copies of staff statements that had been given to police. While these generated some - 17 - concern regarding the grievor’s involvement in the incident, the employer was of the view it was premature to begin any disciplinary action. [101] In early August 1996, the employer’s suspicions were heightened when the Coroner’s report was reviewed. However, the employer waited until the inquest convened a few weeks later, reasoning that additional information, and particularly medical information would provide valuable information regarding the cause of the resident’s death. [102] Having heard the evidence at the inquest, the employer had no doubt regarding the grievor’s role in the resident’s death. Consequently, the grievor’s employment was suspended on October 15, 1996, the day the inquest concluded, and his employment was terminated on October 28, 1996. This was approximately two years and 8 months following the incident. [103] Arbitrator Simmons rejected a timeliness challenge on the basis the employer ought to have initiated discipline proceedings earlier. At paragraph 123, Arbitrator Simmons found that it was only at the conclusion of the coroner’s inquest that the employer felt confident that it had sufficient knowledge to enable it to take disciplinary action. He stated further: 127 Finally, I am persuaded by the reasoning in Tank Truck, supra, wherein the arbitrator comments on p.254: "we are reluctant to embrace an interpretation of the agreement which would encourage an employer to act precipitously on the basis of suggestion, supposition, suspicion, or unsubstantiated allegations of which it has no direct knowledge or independent basis [for acting earlier than it did]." … [104] The Employer submitted the analyses of Arbitrator Cummings in Thames Valley, supra and Arbitrator Simmons in City of Toronto, supra, ought to dispose of the motion in this instance, as there was no delay on the part of the Employer. Rather, it acted as soon as it had sufficient information to do so. [105] The Employer also pointed out that in any event, delay alone is not sufficient to vacate the discipline, particularly with regard to serious allegations such as at issue in this instance. Rather, the delay must result in some prejudice to the employee. This was addressed by Arbitrator Herlich in AFG Industries Ltd., supra, at paragraphs 18 to 26. Arbitrator Herlich indicated prejudice could be demonstrated, or inferred or presumed, from the inability to - 18 - defend against allegations due to fading memories, lost opportunity to gather exculpatory evidence, or condonation. [106] The Employer pointed out that as the Grievor had not testified in this instance, there could be no finding of actual prejudice. [107] Nor, argued the Employer, could prejudice be inferred. [108] In the first instance, the Employer submitted the allegations in this instance were distinct from those in White, supra, relied on by the Union. The allegations that were not allowed to stand concerned normal every day work events. Without a reason to remember, memory of them would fade. [109] However, the Employer pointed out that Arbitrator Petryshen allowed the allegations that the Grievor falsified sign in/out sheets to stand. While the Grievor could not recall the details of why she arrived late and why she was able to leave early, those details were not relevant, as there was no dispute the sheets were inaccurate. Rather, Arbitrator Petryshen found, also at paragraph 36, that recording times on the sign in/out sheets that are not accurate would fall into the category of unusual events, and consequently the grievor and Union were not prejudiced in their ability to defend against this allegation. [110] The Employer submitted the allegations against the Griever were comparable to falsification of sign in/out sheets, in that calling in sick when not, and instead working elsewhere, and receiving both sick benefits and pay is highly unusual rather than “routine”. [111] The Employer also relied on the decision of the HRTO, which noted that as early as January 2017, when the Grievor’s employment was terminated, the Grievor was aware Lakeridge Health was investigating her dual employment and potential overlap regarding Lakeridge Health and TSDC. [112] Accordingly, the Grievor had been dealing with these issues since before her termination at Lakeridge Health in January 2017, not only in her termination grievance but also at her discipline hearing at the CNO, and also in her complaint against Lakeridge Health before the HRTO. - 19 - [113] Finally, the Employer submitted there could not there be any question of condonation, as the Grievor’s employment had been terminated by Lakeridge Health as a result of the very behaviour at issue in this instance. ANALYSIS: The Jurisprudence [114] Chair Smeenk’s decision in Stanley, supra, provides a concise summary of the applicable jurisprudence: [23] In considering whether discipline should be voided for reasons of undue delay, there are three (3) key criteria, none of which are necessarily determinative: a. The length of the delay; b. The reasons for the delay; and c. The prejudicial effect of the delay. [24] Whether delay will void discipline will depend on the facts in each case. … It is generally inappropriate to count any period before the employer knew or ought reasonably to have known about the misconduct. An employer cannot be held responsible for delay in a period when it had no basis to act. See for example the following authorities, cited above: Brown & Beatty, S 7:7; Barnes at para. 70-71; White at paragraph 34; and Thames Valley at para. 12. [25] For an adjudicator to void discipline for delay, prejudice to the employee arising from the delay must be shown. However, the prejudice may be actual or inherent in the circumstances. This most often arises when the ability to defend against the allegations is compromised by the delay. In this regard, arbitrators will consider whether the allegations relate to routine activities, which an employee might have difficulty recalling, versus unusual or extraordinary events, which the employee is more likely to be able to recall the latter. See for example the following authorities cited above: AFG Industries at para. 23; Farwest Transit at para. 30; and White at para. 34. [26] Prejudice to the employee may also arise if the employer is found to have condoned the behaviour. The test is whether the employee was reasonably led to conclude that their conduct had been forgiven or condoned. See for example the following authorities cited above: White, at - 20 - para. 34; Rodrigues, at p. 20; Bonaci, at pp. 7-8 and Manitoba Pool Elevators at para. 4. (emphasis added) [115] Accordingly, whether discipline is voided due to delay depends, as is often the case, on the specific facts in each case. [116] The first issue to be determined is when the Employer in this instance knew or ought reasonably to have known the Grievor was engaging in misconduct at TSDC. [117] It is apparent the Summons served on the Employer in May 2017 contained no detail or substance regarding the dispute between the Grievor and Lakeridge Health. Further, there was no suggestion that whatever that dispute was, it somehow related to or involved TSDC. [118] Nor was there any suggestion that information was shared with Mr. Cheng by either counsel, or anyone else involved in the dispute. [119] Consequently, there can be no suggestion the Employer knew, as a result of being served with the Summons, that the Grievor was engaging in any misconduct at TSDC. [120] The issue then becomes whether the Employer ought reasonably to have known of the Grievor’s alleged misconduct at TSDC. [121] The Union suggested the nature of the documents sought in relation to the dispute at Lakeridge Health ought to have triggered an investigation of the Grievor’s conduct at TSDC. However, the materials requested were very broad. They are set out again for convenience: all documents including time sheets, scheduling records, human resources employee file, and including notes, memoranda, invoices, tape records, electronic mail records or any other records from yourself, agendas or minutes of meetings or any other records whatsoever that you made, received or have in your possession or control and any other evidence, documentary or otherwise, with respect to Ms. Tara Frater. [122] Indeed, Mr. Cheng’s evidence was that he is familiar with such summons as TSDC has received them for various legal proceedings such as insurance disputes, and has provide various documents including those related to attendance, schedules, and accommodation. - 21 - [123] While the request was subsequently narrowed to the Grievor’s attendance records, as well as the restrictions the Grievor was presenting for the period during which she was performing modified work or was on medical leave, this is still open to a broad range of possible disputes. These included, as Ms. Dwyer suggested, disputes regarding attendance and/or time theft; disputes regarding scheduling; or disputes regarding accommodation issues. Whatever the dispute was, however, the only information available to TSDC was that it related to Lakeridge Health. [124] This is reflected in Ms. Dwyer’s evidence. While the Summons piqued her curiosity, when advised no additional information was available, Ms. Dwyer did not feel compelled to press for more information, as she had no basis on which to suspect the Grievor was engaging in misconduct at TSDC. As she noted, she had received similar requests for schedules from other employers “all the time”, that were related to employment with those other employers. [125] Further, while the Employer was probably aware the Grievor was employed elsewhere in addition to her full-time job at TSDC, there was no dispute this was not unusual, especially for nursing staff. Accordingly, that fact alone is insufficient to trigger or arguably even to justify an investigation. I reach the same conclusion regarding the only other real fact the Employer had i.e., that the Grievor had some sort of dispute with her other employer. [126] While the Union submitted that in the face of the failure to investigate further, (presumably in an attempt to discover some undefined, unsuspected misconduct by the Grievor), knowledge of alleged misconduct ought to be imputed to the Employer so as to trigger the “clock” with regard to any delay that may result in imposing discipline. [127] This would constitute an unfortunate evolution of the jurisprudence. [128] Rather, as set out above, and noted in Barnes, supra, delay is measured from when an employer has sufficient information about an employee’s conduct to conclude it could lead to discipline: [69] It is generally accepted that if an employer is going to impose discipline, it must be reasonably expeditious in doing so. The “clock” starts once an employer has information about an employee’s conduct that could lead to discipline. Excessive delay in imposing discipline can render the discipline void. While the overall burden of establishing that the delay alone - 22 - justifies setting aside the discipline remains with the party alleging excessive delay, the employer is faced with an evidentiary onus to account for and explain the delay. [emphasis added] [129] Further, Brown and Beatty, at § 7:7. Disciplinary Procedures—Timeliness, states, in part, that mere suspicion is not enough: Unless a collective agreement stipulates otherwise, the generally accepted rule is that the clock starts to run from the moment the employer has knowledge of facts which, if true, would establish an employee's culpability. Mere suspicion is not enough. [emphasis added] [130] Here we do not even have a suspicion. [131] Further, the notion the Employer ought to have launched an investigation in the absence of anything more than the knowledge that the Grievor has a dispute of some sort with another Employer is fraught. [132] As pointed out by the Employer, arbitrators have encouraged employers to exercise caution before subjecting employees to investigations. As stated by Vice-Chair Dissanayake in Bonacci, supra at page 9: While in hindsight, the Board tends to agree with the union that the employer could have proceeded with the information verbally communicated to it on October 27, 1995, the Board must be careful not to encourage the employer to act hastily. As a general rule, employers must be encouraged to proceed with caution before making allegations and subjecting employees to investigations. The mere launching of an investigation can be a source of stress on the subject employee and may have a negative impact on the workplace as a whole. [133] Similarly, Arbitrator Simmons, in his decision referenced in paragraph 102 above, adopted the view that there ought to be a reluctance to encourage an employer to act precipitously on the basis of suggestion, supposition, suspicion, or unsubstantiated allegations of which it has no direct knowledge or independent basis for acting earlier than it did. [134] Again, in this instance there is not even a suggestion, supposition, suspicion or unsubstantiated allegation to investigate. - 23 - [135] Indeed, the lack of sufficient information of the misconduct is one of the common and accepted reasons for delay. As stated at paragraph 20, in AFG Industries, supra: Once the quantum of delay is sufficient to require further examination, attention will be directed to the reasons for the delay. For example, a frequent and easily understandable reason for delay may arise where the employer is simply, and through no fault of its own, unaware of the facts giving rise to the need for discipline. [emphasis added] [136] The decision of Arbitrator Simmons in City of Toronto, supra, also provides valuable guidance in this regard. He stated at paragraph 109: 109 The jurisprudence appears to be well settled in what may be referred to as the clear cases. An infraction or misconduct occurs that would normally subject an employee to some form of discipline. The employer is unaware of the incident and remains unaware for a period of time. Then the employer learns of the incident and acts promptly. Whether or not the discipline is justified in this type of case will not be determined by raising the issue of delay by the employer. No delay was present in this case. The employer acted as soon as it learned about the infraction or misconduct. (see also Redpath Sugar Ltd., and Canada Post Corp. supra) [137] I find in this case as well, the Employer remained unaware of any alleged misconduct by the Grievor at TSDC, and could not reasonably have been aware until October 2, 2019, when Ms. Dwyer found the Notice of Hearing on the CNO website, setting out the allegations regarding the Grievor’s conduct at the TSDC. [138] Accordingly, in this instance, there was no delay on the part of the Employer, and no dispute the Employer acted as soon as it learned of the alleged misconduct. [139] In any event, the passage of time alone is not enough to void a discipline. As pointed out by the Employer, there must be either actual or inherent prejudice – and in this case I find there to be none. [140] To the extent the allegations of claiming sick benefits from one employer while working for another are true, such incidents of time theft strike at the very heart of the employment relationship and cannot be characterized as “routine” so as to avoid scrutiny because of faded memories due to the passage of time. Rather, they are extraordinary events which would have, no doubt, required careful planning with a view to avoid detection. - 24 - [141] Further, the Grievor was aware of the allegations that she was engaging in misconduct at both Lakeridge Health and TSDC when her employment was terminated at Lakeridge Health for failing to co-operate in the investigation of those very allegations on January 23, 2017. [142] The HRTO decision in Frater vs. Lakeridge Health, supra, sets out the details of the Grievor’s termination as follows: [24] The respondent states that upon discovering the applicant’s second job at TSDC, they became concerned that the applicant may have been fraudulently collecting disability benefits from them, while nonetheless working at the other job during periods where she had reported to the respondent that she was medically unable to work. They began an investigation into this issue, placing the applicant on paid leave during its latter stages. They allege that the applicant refused to cooperate fully with the investigation and that while she ultimately admitted maintaining the dual employment, she denied having actively worked at the TSDC during times when she had been on sick leave from the respondent. They state that when she was asked to give permission to TSDC for it to share her work schedule there with the respondent, so that they could check if she had worked there during a sick leave period, the applicant refused. They allege that she then ceased participating in the investigation and, indeed, communicating with the respondent, altogether. Finally, the respondent states that both it and the ONA warned the applicant repeatedly that failure to cooperate with the investigation would lead to her termination, and that she was accordingly terminated on January 23, 2017. [25] The respondent notes that thereafter the ONA filed grievances on behalf of the applicant in relation to these matters. As part of the grievance arbitration process, the respondent was provided with the information related to the applicant’s work history at the TSDC through the summons powers of the Arbitrator. They state that this information confirmed that the applicant had worked at the other employer on 48 occasions when she had also reported herself medically unable to work at the respondent, and that in many of these instances she was also receiving sick benefits from the respondent at the time. They also note that after this information came to light, the ONA subsequently withdrew the grievances. [143] Accordingly, it would have been clear to the Grievor that her misconduct at Lakeridge Health, was inextricably linked to the allegations of misconduct at TSDC. It is perhaps best described colloquially as “the flip side of the same coin”. In those circumstances, there can be no prejudice resulting from the subsequent passage of time before TSDC was alerted to the issue. The Grievor has been aware since at least January 2017 that the interrelationship between her - 25 - work and her sick leave at Lakeridge Health and TSDC put her employment at risk, not only at Lakeridge Health, but also at TSDC. [144] Nor can there be any question of a misapprehension on the part of the Grievor, that such conduct could be condoned, as it directly led to the investigation, and ultimate termination of her employment by Lakeridge Health. [145] As I have already indicated, the allegations regarding the Grievor’s conduct strike at the very heart of the employment relationship, and the Grievor could not reasonably have believed that once they were discovered by this Employer they would be overlooked or forgiven. DETERMINATION: [146] The Union’s motion to void the Grievor’s discipline of termination due to delay is dismissed. Dated at Toronto, Ontario this 9th day of February 2023. Tatiana Wacyk Tatiana Wacyk, Arbitrator