Loading...
HomeMy WebLinkAbout1997-0383.McQueen.99-04-27EMPLOY& DE LA UWRONNE DE L’ONTARD COMMISSION ReGLEMENT DES GRIEFS DE I80 DUNDAS STREET WEST SUllESOO, TORONTO ON M5G IZB TELEPHONEiTiLiPHONE : (416) 326-1388 180, RUE DUNDAS OUES7; BUREAU 800, TORONTO (ON) h&G lZ8 FACSIMILE/l-iLkOPIE : (476) 326-1396 GSB #0383/97, 0779/97, 0780197, 1672/97 OPSEU #97D619-623,97C425,97C426,97H089 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN Ontario Public Service Employees Union (Archie McQueen) Grievor - and - The Crown in Right of Ontario (Ministry of the Solicitor General and Correctional Services) Employer BEFORE Felicity D. Briggs Vice-Chair FOR THE GRIEVOR Nelson Roland Barrister & Solicitor FOR THE EMPLOYER Lucy Siraco Counsel, Legal Services Branch Management Board Secretariat HEARING April 14, 1999 The grievor, Mr. Archie McQueen, was a corrections officer for approximately twenty years prior to his discharge. On June 20, 1997, he filed a grievance stating that he had been dismissed without just cause. By way of remedy, he asked to be reinstated with full compensation and benefits. The parties have agreed that I have jurisdiction of other grievances and the matters shall be consolidated. At the second day of hearing there was further discussion about the inclusion of further related matters. However, that issue is not yet resolved. At the first day of hearing, two preliminary matters were addressed, the first regarding an order for production of the Independent Investigation Unit’s (NJ) background notes which was given by the Board and the second was a request for the production of the entire personnel files of the employees who complained about the grievor. This second motion was denied. A written decision was issued regarding these matters. Also on the second day of hearing, the Employer sought to introduce the evidence that was acquired subsequent to the grievor’s discharge. To be specific, the Employer intends to introduce the IIU report and background notes flowing from the investigation. Additionally, it might call witnesses who were interviewed during the investigation. Counsel for the Employer said that it would rely upon this information as further grounds for just cause. In this regard, the Employer relied upon Re Ontario Hydro and Canadian Union of Public Employees, Local 1000 (1988), 3 L.A.C. (4th) 112 (Brent). The Union objected to the introduction of any evidence obtained subsequent to the grievor’s discharge. The Union was concerned of the hearsay nature of that evidence. Additionally, it argued that the Employer was very specific in its allegations regarding the grievor’s discharge and the Employer ought not be allowed to expand its case at this juncture. The grievor has been disciplined and discharged for very specific incidents. The Employer is ‘1. ~ :: 1 2 attempting to bolster its case with additional incidents. It would be inappropriate for this Board to hear evidence about matters for which the grievor was not disciplined at the time. The Union relied upon Re General Motors of Canada Ltd. and United Automobile Workers, Local 303 (1981), 2 L.A.C. 252 (Palmer); and Re Rennie Inc. and Amalgamated Clothing & Textile Workers Union, Local 740 (1993), 39 L.A.C. (4th) 76 (Haefling); Re Newton Ready Mix Ltd. and Teamsters Union, Local 213 (1984), 17 L.A.C. (3d) 333 (Dorsey). As I understand the Employer’s intentions, it seeks to introduce evidence regarding additional incidents of threatening and harassing behavior similar to the conduct for which the grievor was discharged. In Re Rennie (supra), the grievor was originally terminated for “lack of work”. However, following the submission of the grievance to a board of arbitration, the Company attempted to argue that the discharge was for just cause. In General Motors (supra), arbitrator Palmer did not allow the Company to assume that in any disciplinary case, the total record of the grievor could be taken into account. The Company had attempted to raise the issue of the grievor’s disciplinary record as a factor to be considered in determining whether there was just cause at the hearing notwithstanding that there was no such reference made to it in the letter of discharge. In Newton (supra), the board of arbitration allowed the introduction of evidence of the grievor’s work history when it was not referred to in the letter of discharge. However, that evidence could only be considered for the issue of the Board’s discretion to substitute a lesser penalty than discharge. In Ontario Hydro (supra) the Board was asked to hear and accept evidence regarding further misconduct of the grievor. The evidence was not available to the employer until after the grievor was discharged. However it was related to the reasons the grievor was discharged in the first instance. The evidence was provided to the Union before the hearing. i In that decision the Employer undertook a comprehensive audit after the grievor was i terminated and it was the results of that audit the Employer sought to introduce. The Board I ~_ stated at page 12 1: It is therefore our conclusion that we must approach the question of the admissibility of this evidence as a question of whether Hydro can introduce and add new grounds for the discharge under the circumstances which are before us. The Board then considered Re U.S.W.A. and Aerocide Dispensers Ltd. (1965), 15 L.A.C. 416 (Laskin). In stated further on page 122: Quite clearly the board was not dealing with the question of new evidence acquired after the discharge which gave rise to a new and separate charge against the employee. It was dealing with an attempt to change the grounds for discipline, after the evidence was heard, while effectively abandoning the stated grounds because the evidence brought forward at the hearing could not support the stated grounds. It was an attempt to recharacterize the grounds for discharge to fit the evidence it actually had as opposed to the evidence it thought it had. The case says nothing about a situation where prior to arbitration the employer gives notice to the union that subsequent to the discharge it has discovered additional examples of wrongdoing for which it would have disciplined the employee had it known of them while the employee was still in its employ. At page 123 it was said: With respect, though, we consider that following Loblaw reasoning Aerocide should be read as limiting the employer to the stated grounds for discharge only in the sense that it precludes the employer from trying to fashion a new ground for discharge out of the incident it acted upon in order to fit the evidence it has rather than the evidence it thought it had. However, if the employer learns of something new after it has decided to discharge and that “something new” would justify discharge on its own, should the employer be precluded from raising it as a new and separate ground of discharge as of the date that it determined that the “something new” should be relied on as cause for discharge, provided that all procedural safeguards are complied with? Lobhv answers that question by allowing the introduction of the after-acquired evidence. Therefore, it seems that one must distinguish between cases where the evidence has not come out as expected and employers try to bolster a weak case by trying to turn what is now seen to be a sow’s ear into something resembling a silk purse, and those cases where employers come forward with newly acquired evidence which could have been relied on as grounds for discharge had the person still been employed when the evidence became known to the employer. The Loblaw decision is one which arrives at a fair solution to a difficult problem. The employer is allowed to introduce a separate ground for discharge, evidence of which only came to its attention following the discharge. This precludes any possibility of the employer being able to use that evidence to support a discharge following a reinstatement as occurred in the Wuxana case, supra. The requirement that the union receive full notice of the new grounds before the hearing means that it is not taken by surprise and so is not deprived of its ability to present its case. . . . . . . . 4 The Board also cited from a decision of Arbitrator Howard Brown Re St. Joseph’s Hospital, Hamilton and Ontario Nurses’ Association (1978), 17 L.A.C. (2d) 404 wherein it was stated at page 406: . . . ..the evidence sought to be introduced by the employer of incidents involving the grievor discovered following the grievor’s discharge but which occurred prior to the discharge and which relate to the basis on which the employer’s action was taken is admissible. The general rule is that employers are held by arbitrators to substantiating their cases on the basis of the grounds on which they originally took the disciplinary action, and they are not allowed to submit evidence in support of reasons different than the stated basis for the disciplinary action. Nor it the employer entitled to submit evidence to justify the disciplinary action on new and unrelated matters to the action which precipitated the discharge. Here, according to the submission of counsel, the evidence sough&to be introduced concerns incidents relating to the allegation of the grievor’s incompetency which were not within the knowledge of the employer at the time the decision to discharge was taken, nor was that knowledge available to it at that time. This evidence is not produced to support new or different grounds for discipline, but it is submitted as further examples of the reasons for discharge and in corroboration of the reasonableness of the employer’s initial action. If that evidence related to an alleged offence separate and apart from that on which the disciplinary action was taken, and even though it was not know to the employer at the time of the disciplinary action with certain limited exception expressed in the Carter Carburetor and DougZas Aircraft decisions, the evidence would not be admitted. That kind of evidence is distinguishable from the evidence which counsel for the employer in this case has advised us he intends to produce, which would relate to other examples of the grievor’s work performance, which, had they been known at the time of the discharge, would have supported its position. The St. Joseph Hospital decision is similar to the matter at hand. As I understand the submission of employer counsel, it seeks to introduce evidence arising from the IIU report and documentation which only came into its possession approximately three months after the grievor was terminated. The evidence that will be introduced relates to the reasons given for the grievor’s discharge, that is evidence regarding threatening and harassing behavior towards others including his co-workers. Accordingly, I will hear the evidence. What weight, if any, that evidence should be given will be a matter for argument in the parties’ final submissions. 5 Dated in Toronto this 27th day of April, 1999.