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HomeMy WebLinkAbout1997-2033.Massa.99-06-01EMPLOY~S DE LA COURONNE DE L’ONTARK) COMMISSION DE SETTLEMENT RCGLEMENT DES GRIEFS 180 DUNDAS STREET WEST; SUITE 600, TORONTO ON M5G iZ8 TELEPHONEITiLfiPHONE : (416) 326- 1388 180, RUE DUNDAS OUE.57; BUREAU 600. TORONTO (ON) M5G lZ8 FACSIMILEITLjLkOPIE : (416) 326-1396 GSB # 2033197, 0384198, 0385198 OLB # 002198, 235197, 413197 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN Ontario Liquor Boards Employees’ Union (Joseph Massa) Union - and - The Crown in Right of Ontario (Liquor Control Board of Ontario) Employer BEFORE Randi Hammer Abramsky Vice-Chair FOR THE UNION Larry Steinberg Counsel, Koskie Minsky Barristers & Solicitors FOR THE EMPLOYER Michael G. Sherrard Counsel, Ogilvy Renault Barristers & Solicitors HEARING May 12, 1999 in Toronto INTERIM AWARD At the close of the Employer’s case, the Union moved for a non-suit in relation to one of the grievances before this Board, the three-day suspension issued to the grievor, Joseph Massa, on July 14, 1997. The basis of the Union’s motion is that the Employer violated Article 26.3 of the parties’ collective agreement and, as a result, the discipline imposed is void ab initio. Article 26.3 states as follows: An employee who is required to attend a meeting for the purpose of discussing a matter which may result in disciplinary action being taken against the employee shall be made aware of the purpose of the meeting and his/her right to Union representation in advance of the meeting. The employee shall be entitled to have a Union representative at such meeting provided that this does not result in undue delay. Facts On June 4, 1997, the grievor was issued a “Notice of Intended Discipline”, commonly referred to as a “NOID”, in relation to an alleged forklift incident on June 3, 1997. This was handed to Mr. Massa without a union steward present since he did not want to be represented by one of the local stewards and the OLBEU Zone Representative was away. The NOID outlined the alleged incident and then stated, in part, that “[wlithin three (3) days from receipt of this letter you are requested to provide me with a written explanation of your actions and your disregard for established safety procedures.” On June 6, 1997, Mr. Massa submitted a written reply to the allegations contained in the June 4, 1997 NOID. Thereafter, Human Resources Manager Pat Houlihan advised Bill McDowell, Manager of the Distribution Centre in London, that the grievor was entitled to union representation when he was issued the NOID and that the first NOID should be withdrawn and then reissued when the Zone Representative returned or sent by mail. This was done on June 12, 1997 by letter via registered mail. The June 12: 1997 letter which was sent by Mr. McDowell states, in pertinent part, as follows: With respect to the “Notice of Intended Discipline”, dated and issued to you June 04, 1997. Please be advised that as no OLBEU Zone Representative was available on this date, the initial notice is hereby deemed null and void. Attached you will find your written response to the notice, dated June 06, 1997, accompanied by a revised “Notice of Intended Discipline”, dated June 12, 1997, forwarded to you VIA REGISTERED MAIL. . . . The revised NOID, dated June 12, 1997, is identical to the June 4, 1997 NOID. Mr. McDowell testified that he received another copy of Mr. Massa’s first response, dated June 6, 1997, in response to the second NOID. It was also Mr. Houlihan’s recollection that Mr. Massa resubmitted his first response to the revised NOID. At this point in the hearing, that evidence stands unrefuted and must be accepted as true for the purposes of this motion. On July 14, 1997, the grievor was issued a three-day suspension by Mr. McDowell in relation to the alleged incident on June 3, 1997. That letter starts off as follows: Further to the Notice of Intended Discipline issued to you June 4, 1997 regarding your operation of a fork lift truck on the afternoon of June 3, 1997. We are in receipt of the requested information and have carefully considered the explanation you have provided in your letter dated June 6. 1997. . . . It then reviews the points raised by the grievor in his June 6, 1997 response, determines that he failed to provide any reasonable explanation for his actions and determined that discipline was warranted. During the hearing, Mr. McDowell was not questioned either in examination-in- chief or in cross-examination about the dates set forth in the July 14, 1997 letter of discipline. The issue was canvassed with Mr. Houlihan, but his role was that of advisor. He did not author the July 14, 1997 letter imposing discipline. Arguments of the Parties The Union submits that the July 14, 1997 letter of discipline, on its face, is defective by reason of its reference to the original June 4, 1997 NOID. The Employer, in the Union’s view, improperly relied on the first NOID which was issued in violation of Article 26.3 of the collective agreement . As a result, it submits that the discipline is void ab initio. In support of its contention, the Union cites to two GSB cases: OLBEU (LeHay) and LCBO (1995), GSB No. 809194 (Gorsky) and OLBEU (Franssen) and LCBO (1997), GSB No. 1636/96 (Mikus). In LeHay, the Union raised a preliminary objection to the hearing proceeding on the basis that the discharge of the grievor was void ab initio because the Employer failed to comply with Article 26.3 In that case, the grievor was 4 handed a NOID at a meeting, with no advance notice of the subject matter of the meeting nor of his right to union representation. The NOID stated that the grievor was observed using improper cashiering procedures on May 4, 1994, and asked for a written statement explaining the incident within three days. At the meeting, however, the manager questioned the grievor regarding what occurred on May 4. In the board’s view, this was a meeting, at least in part, to discuss “a matter which may result in disciplinary action being taken” against the grievor within the meaning of Article 26.3. Accordingly, the grievor had a right to be made “aware of the purpose of the meeting and his/her right to Union representation in advance of the meeting.” Since that did not occur, the discipline was void ab initio. The Board decided that Article 26.3 created a substantive right for the protection of employees which must be complied with or the discipline imposed is void ab initio. In Franssen: the grievor was issued thirteen NOIDS in all which led to his termination of employment. Six were delivered to him by his manager, without discussion although the grievor read them in the manager’s presence and commented that they were “untrue” and “made no sense.” Two were sent by priority post, and five more were hand-delivered to the grievor without any discussion at all. The Union, as a preliminary matter, asserted that the handing of the NOIDs to the grievor constituted a “meeting for the purpose of discussing a matter which may result in disciplinary action being taken” under Article 26.3 and, since the grievor was not told of the purpose of the meeting nor advised of his right to union representation, were void ab initio. The Board agreed, stating at p. 8 that when the manager “elected to present the NOIDs personally to 5 the grievor, he initiated a meeting to discuss matters that . ..might lead to discipline...” and “put the grievor in the vulnerable position of possibly making statements against interest without the advice and assistance of a Union representative.” Accordingly, the NOIDs, with the exception of the two which were sent by priority post, were void ab initio. There was no violation in regard to the NOIDs sent by mail because “the rights under article 26.3 arise only if an employee is required to attend a meeting to discuss a matter that might lead to discipline” and “[tlhe NOIDs that were sent by mail to the grievor do not fall into that category.“(Decision at p. 10) In the instant case, the Union submits that the June 4, 1997 NOID, which was handed to the grievor without Union representation in violation of Article 26.3 was void and the discipline of July 14, 1997, which relied on that NOID, is void ab initio. The case law, it submits, makes this clear and must be followed. Accordingly, it contends that its motion for non-suit regarding the three-day suspension must be granted. The Employer asserts that the onus is on the Union to establish a violation of Article 26.3 which it has failed to do. It submits that the Union’s position ignores the fact that the Employer, based on the GSB cases, itself voided the June 4, 1997 NOID and returned Mr. Massa’s June 6, 1997 reply. It then properly re-issued it: by priority post, on June 12, 1997 and Mr. Massa re-submitted the same June 6, 1997 reply. In the Employer’s view, there was no violation of Article 26.3 and the mistaken reference to the June 4, 1997 NOID cannot create one. To so rule, in its view, would be absurd. The Employer submits that given the Employer’s reliance on the resubmitted June 6 reply 6 from Mr. Massa, it is only logical that the reference to the June 4th NOID, rather than the re-issued one, was a mistake and notes that Mr. McDowell was not questioned about this by counsel for the Union. In support of its contention, the Employer relies on LeHay, in which the Board opined at p. 56 that there might be “a certain futility to this exercise, in that the Grievor may again be discharged by the Employer, this time following the requirements of the collective agreement...” In the Employer’s view, that is exactly what it did here - withdraw the improper NOID and re-issue it properly following the requirements of the collective agreement. In its submission, the mistaken reference to the first NOID in the July 14, 1997 letter of discipline is not sufficient to void the discipline imposed. The Employer also cites to Re Ottawa Board of Education and Ottawa Board of Education Employees’ Union (1988); 2 L.A.C. (4th) 26 (Bendel) and Re KS Services Ltd., Vending Services and Teamsters Union, Local 647 (1990), 17 L.A.C. (4th) 239 (Brandt). In reply, the Union submits that the issue here is not whether Mr. Massa could be disciplined again, but whether the collective agreement was violated by the Employer when it disciplined the grievor based on a NOID which was issued to him without union representation. It asserts that the July 14, 1997 letter of discipline is clear on its face that discipline was based on the defective NOID and there is no evidence that a “mistake” about the date was made. It is just as logical, in the Union’s view, that Mr. McDowell improperly relied on the defective NOID. It submits that it had no obligation to question 7 Mr. McDowell about the dates on the July 14 letter and could properly take the document at face value. DECISION The Union’s motion for non-suit depends on whether or not there was a violation of Article 26.3. If so, the discipline is void ab initio. Le Hay, supra. The onus is on the Union and based on the evidence presented I cannot conclude that there was a violation of Article 26.3 in this case. Article 26.3 grants “a substantive right to an employee to have the assistance of a Union representative whenever he/she is required to attend a meeting with the employer to discuss any matter that might lead to discipline.” Franssen, supra at p. 7. The purpose of this provision is to protect the employee from the risk of making incriminating statements. LeHay, supra at p. 50, citing The Steel Company of Canada (Raynor) at pp. 7-8 , unreported decision dated August 29, 1990. It protects against placing an employee in “a vulnerable position of possibly making statements against interest without the advice and assistance of a Union representative.“. Franssen, supra at pp. 8-9. This right to union representation, however, only attaches when there is a meeting held to discuss a matter that may lead to discipline. There is no requirement that a meeting be held and a NOID may be sent to an employee by mail, without violating Article 26.3. Franssen, supra at p. 10. In this case, the original June 4, 1997 NOID was handed to the grievor without union representation. It is unrefuted that he chose not to have the local stewards represent him and the OLBEU Zone Representative was away. Mr. Massa then replied in writing to the June 4th NOID. Thereafter, on June 12, 1997, in light of the GSB cases cited above, the Employer rescinded the June 4, 1997 NOID, declaring it “null and void” and issued a revised NOID which was identical to the first one, via registered mail. While it is dicta, the LeHay decision appears to authorize this course of action and, in fact, the Union did not assert that the Employer could not do so. Counsel for the Union only stated that there is a division in the case law about the right of an employer to correct its actions in this manner. Instead, the Union’s concern focused solely on the July 14, 1997 letter of discipline which referred to the first defective NOID. The fact is, however, that with the withdrawal of the first NOID, Mr. Massa was not placed in a “vulnerable position of possibly making statements against interest without the advice and assistance of a union representative.” Franssen, supra at p. 8. There was no “meeting” under Article 26.3 because the revised NOID was sent by registered mail. Assuming, per LeHay, that the Employer could correct its initial error as it did, there was no substantive violation of Mr. Massa’s rights to union representation. All that is left is the fact that the July 14, 1997 letter of discipline refers to the first, defective NOID and the record is simply unclear whether that was the result of an error in the date by Mr. McDowell or improper reliance on the June 4, 1997 NOID. Although as counsel for the Union quite properly asserts, the Union may rely on the letter 9 of discipline as written and did not have to question Mr. McDowell about it, that leaves the evidence regarding the circumstances surrounding the July 14, 1997 letter unclear. On its face, the letter refers to the June 4, 1997 NOID and the June 6, 1997 reply from Mr. Massa. But that letter does not stand alone. There is both documentary and testimonial evidence that the first NOID was rescinded and a new one issued and that Mr. Massa resubmitted his original reply in response to the second NOID. That evidence truly raises a question about the letter of discipline’s reference to the original NOID. Normally, compliance with Article 26.3 is raised as a preliminary issue. Indeed, in LeHay, supra at p. 58, the board stated that “it would be expected that the issue relating to the Employer’s failure to comply with the provisions of art. 26.3 would, at some point in the [grievance] procedure, have been raised by the Union.” There is no evidence that occurred here. Nor was it raised as a preliminary issue, nor mentioned in the opening statements, nor was the one witness who could have explained it questioned about it. The effect of this is to leave the record decidedly unclear about the July 14, 1997 letter. It is just as plausible that Mr. McDowell made a mistake about the date as it is that he truly relied on the defective NOID. In a motion for non-suit, the evidence is to be considered in the light most favourable to the party opposing the motion - witnesses are to be assumed credible and all reasonable favorable inferences are to be drawn. As a result, I cannot conclude that the Employer, in fact, improperly based its decision to discipline the grievor on the June 4, 1997 NOID instead of the revised one. 10 Accordingly the Union has not sustained its onus and the motion for a non-suit is denied. Issued this 1st day of June, 1999, in Toronto. - air 11