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HomeMy WebLinkAbout2001-1469.Simpson.02-07-30 DecisionONTARIO EMPLOYÉS DE LA COURONNE CROWN EMPLOYEES DE L’ONTARIO GRIEVANCE COMMISSION DE SETTLEMENT RÈGLEMENT BOARD DES GRIEFS 180 DUNDAS STREET WEST, SUITE 600, TORONTO ON M5G 1Z8 TELEPHONE/TÉLÉPHONE: (416) 326-1388 180, RUE DUNDAS OUEST, BUREAU 600, TORONTO (ON) M5G IZ8 FACSIMILE/TÉLÉCOPIE: (416) 326-1396 GSB#1469/01 UNION# OLB504/01 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN Ontario Liquor Boards Employee’s Union (Simpson) Grievor -and- The Crown in Right of Ontario (Liquor Control Board of Ontario) Employer BEFORE N. Dissanayake Vice-Chair FOR THE UNION Craig Flood Counsel Koskie Minsky Barristers & Solicitors FOR THE EMPLOYER Mike Horvat Counsel Ogilvy Renault Barristers and Solicitors HEARING June 20 & 21, 2002. 2 DECISION This is a grievance dated November 9, 2001 filed by the grievor Mr. John Simpson wherein he challenges discipline imposed upon him. This decision deals with a preliminary motion by the union that the discipline imposed on the grievor be declared void ab initio. This motion is based on article 26.3 of the collective agreement, which reads: 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 this does not result in undue delay. It is the union=s contention that the discipline on the grievor was preceded by meetings on September 17 and September 20, 2001 in respect of which the employer failed to comply with article 26.3. The union submits that if the article was contravened on either date, the discipline that followed is void ab initio. The employer did not dispute the legal proposition, but took the position that article 26.3 was not contravened at either meeting. The meeting on September 17, 2001 The employer=s primary position with regard to this meeting is that it did not trigger article 26.3. In the alternative, it is 3 argued that if article 26.3 did apply, the employer was in compliance. I turn to the evidence in this regard. Based on the evidence, I find the following facts. The grievor was employed as a casual Customer Service Representative at the employer’s store #32 in Windsor, Ontario. On September 17, 2001 he was on a 9:00 a.m. to 2:00 p.m. shift. Shortly before 2:00 p.m. his Store Manager, Mr. Jacque Lanthier approached him and asked if he would work an extra hour that day. The grievor agreed. The grievor did not inquire, nor did Mr. Lanthier inform the grievor, as to why he was asked to stay an extra hour. Sometime during that extra hour, Mr. Lanthier again approached the grievor and stated words to the effect AJohn, would you mind coming to the office with me@. The grievor followed Mr. Lanthier to the Store Manager=s office. As he approached the office, he observed Mr. Robert Poulin, District Manager, at the steps leading to the office. As the grievor approached the office door, he saw Ms. Pat Gauld in the manager=s office. He recognized her as Aa union official@, having met her previously at LCBO functions such as wine tastings. He was not aware why she was there. After he entered the office, Mr. Lanthier introduced the grievor to Ms. Gauld. Then Mr. Poulin handed to the grievor a sealed envelope and stated that the grievor should talk to Ms. Gauld about it. The grievor asked Mr. Poulin, AWhat is this for?@ Mr. Poulin replied, AIt’s all 4 explained in the letter,@ and proceeded to inform the grievor that he would be on 3 days off with pay and that he had 3 days to respond to the letter. With that Mr. Poulin and Mr. Lanthier left, leaving the grievor and Ms. Gauld in the office. The grievor read the letter and shared it with Ms. Gauld. The letter, dated September 17, 2000 and signed by Mr. Poulin, was what is referred to by the parties as a Anotice of intended discipline@ (NOID). It read as follows: As a result of improper cashiering procedures on September 1, 2001, disciplinary action may be taken against you. More specifically you failed to scan or ring in a product, you did not provide a receipt to the customer after receiving cash payment. Also more than one staff member were working off of the same cash drawer. You have also exchanged American change from your cash drawer to personal money, which is contrary to the cashiering procedures. Within three (3) calendar days of your receipt of this letter, you are directed to submit a written statement by registered mail, to my attention. Robert Poulin, District 4 Manager, in which you are to explain the circumstances giving rise to your behaviour. Furthermore, you are hereby relieved from duty immediately with pay pending your reply and the results of an internal investigation. Should a meeting be scheduled following receipt of your written statement, please be advised that you are entitled to Union Representation, as discipline 5 may result from the meeting. Should you choose not to respond as requested, understand that Management will act on information currently available. The LCBO=s decision in this matter will be made known to you in due course. Ms. Gauld and the grievor talked for 5 to 10 minutes about the contents of the NOID. Then Ms. Gauld opened the office door. Mr. Poulin and Mr. Lanthier were standing outside. They stepped in to the office. Mr. Poulin instructed that the grievor collect his personal belongings and leave the premises. He did so. Ms. Gauld at the time worked at store #166 in Essex. On September 17, 2001, Mr. Poulin called her in the morning at work and told her that he needed her for Asome union business@. He told her that he needed her to attend at his office, which was located at the Roundhouse Centre Store and also that she will need a car. He asked how soon she could come. Ms. Gauld made arrangements with her store manager and drove to Mr. Poulin=s office. Once she arrived, Mr. Poulin informed Ms. Gauld that he was giving a NOID to an employee by the name of John Simpson at store #32 and that he wanted Ms. Gauld to be present when he did so. According to Mr. Poulin, at the time he also verbally gave Ms. Gauld a summary of the allegations against the grievor as described in the underlined portion of the NOID. Ms. Gauld could not recall Mr. Poulin 6 providing her such a summary. The two then drove in separate vehicles to the grievor=s store. She was directed to the manager=s office at that store and was introduced to the grievor. Ms. Gauld testified that when Mr. Poulin first mentioned the name John Simpson, she had no idea who that was. However, when she saw the grievor, she recalled that she had met him previously in her capacity as LCBO District Trainer. The only substantial conflict with regard to the facts is whether or not Mr. Poulin verbally communicated to Ms. Gauld a summary of the allegations described in the VOID. The issue then is whether the meeting held on September 17, 2001 was a meeting Afor the purpose of discussing a matter which may result in disciplinary action being taken against the employee@ within the meaning of article 26.3. The employer=s position is that the meeting on September 17 was not such a meeting. Its purpose was only to deliver the NOID. Mr. Poulin had no intention of discussing anything with the grievor. He merely handed the NOID, advised the grievor to read it and talk it over with the union representative. After he had done so, Mr. Poulin instructed that he was relieved of duty for 3 days and to get his personal belongings and leave the premises. No other discussion occurred. Thus it was argued that the meeting was not for the purpose of 7 discussing a matter which may result in discipline, and therefore article 26.3 did not come into play. In Re Franssen, 1636/96 (Mikus), the Board had to consider, inter alia, whether meetings held on August 22, 1996 and September 16, 1996 triggered article 26.3. The Board set out the facts as follows: August 22, 1996 meeting - He met the grievor outside the store at about 0910 hours, about twenty minutes before the store was to open. They went to the grievor=s office and, when the grievor began a casual discussion about general store matters, Mr. Poulin told him he had bigger concerns. Their stories differ slightly about what happened next. According to the grievor, Mr. Poulin handed him the envelope containing the NOIDS and gave him time to read them. Mr. Poulin testified that he took the NOIDS out of the envelope and handed them to the grievor. In any event, it was agreed that, while the grievor read the NOIDS, he made comments about them to the effect that they were nonsense, made no sense and were untrue. Mr. Poulin did not respond to the grievor=s comments. He pointed out that he expected a written response, referred to one of the NOIDs which stated that the grievor was being suspended with pay pending investigation, asked him for his keys and requested he leave the store. September 16, 1996 meeting: Instead, on September 16, 1996, he called the grievor at home late in the afternoon and requested that he attend at the Kapuskasing store as soon as possible. 8 He did not tell the grievor the purpose of the meeting. At the meeting he was handed another envelope containing an additional five (5) NOIDS. There was no discussion about the contents of the envelope and the grievor was told to read them later and to respond in writing as requested. In Re Franssen, the employer counsel submitted as follows: In the instant case, the Employer simply handed over a packet of NOIDs. No questions were asked and no admissions were sought. The purpose of the personal contact with the grievor on August 22, 1996, was not to discipline the grievor but to relieve him of his keys and his duties. On September 16, 1996, nothing happened. The grievor was handed an envelope of NOIDs and was told to review them at home. There was no discussion of the content of the NOIDs. The Union is seeking to expand the substantive rights under article 26.3 on the slight chance that an employee might make a comment when given a NOID. The giving of a NOID is not a meeting under the collective agreement. At pp. 8-9, the Board held: With respect to the first group, it is clear from the evidence that there has been a breach of article 26.3. Irrespective of the slightly different versions of the actual conversation between Mr. Poulin and the grievor, when Mr. Poulin elected to present the NOIDs personally to the grievor, he initiated a meeting to discuss matters that not only might lead to discipline but, in fact, were destined to result in discipline, given the nature of the allegations. In the circumstances, the grievor had 9 no alternative but to meet with Mr. Poulin. He was not advised in advance of the purpose of the meeting, nor was he advised that he could have a Union representative assist him. Even though Mr. Poulin did not make any inquiries of the grievor, the fact is he put the grievor in the vulnerable position of possibly making statements against interest without the advice and assistance of Union representative. That the grievor did not make any inculpatory statements is irrelevant to the issue. The fact is he could have and, if he had, the Employer, no doubt, would have relied on those admissions in determining whether to discipline the grievor. The NOIDs handed to the grievor on August 22, 1996, are therefore, consistent with the jurisprudence, void ab initio. For the same reasons, the September 16, 1996 NOIDS are void ab initio. The grievor was summoned to a meeting for the sole purpose of being handed additional NOIDs. Again he was not advised before the meeting of the purpose of the meeting or of his right to Union representation. Even though the NOIDs were in an envelope and there was no discussion of the allegations themselves, the grievor was once again placed in the vulnerable position of being handed notices of intended discipline without regard to his rights under the collective agreement. It would have been natural in the circumstances for him to have inquired about the contents of the envelope. He knew he was in trouble by that time. There was a substantial risk that he could have made statements against interest during that meeting. If he had, again I have no doubt that the Employer would have relied on those statements at a subsequent arbitration hearing. The Board went on to hold: 10 Article 26.3 is very broadly worded. Any discussion with an employee that might lead to discipline is subject to the requirement that an employee be advised in advance of the meeting and the purpose and that he/she is entitled to Union representation. Given the number and seriousness of the allegations in the grievor=s NOIDs, it is safe to assume that the Employer would have to take action against the grievor. He was entitled to the protections under the collective agreement in the circumstances. It is apparent that the employer=s position that where a meeting was only for the purpose of delivering a NOID, article 26.3 has no application was rejected by the Board in Re Franssen. It does not matter whether Mr. Poulin intended to discuss any particular subject with the grievor at the meeting or whether the grievor in fact made any inculpatory statements. The intention of the article is to ensure that the grievor is not put in a vulnerable situation with the possibility that inculpatory statements may be elicited or volunteered, unless the grievor is afforded the rights stipulated in article 26.3. As in Re Franssen, here there was some dialogue between Mr. Poulin and the grievor. In that case, the Board commented that it would have been natural for the grievor to have inquired about the contents of the envelope. In the present case the grievor in fact did so. When Mr. Poulin returned to the office after the grievor had had a chance to read the NOID, the grievor could easily have prejudiced 11 his position by denying the allegations, admitting them or trying to explain. The fact that this did not happen is irrelevant. In the circumstances, I find that article 26.3 did apply to the September 17, 2001 meeting. The issue then is whether or not it was complied with. In a recent decision in Re Bell, 683/01 (Dissanayake), I described article 26.3 as follows: This provision confers upon an employee required to attend a meeting falling within its ambit, three distinct rights. First, the employee must be made aware, in advance, of the purpose of the meeting. Second, the employee must be made aware, in advance, of his/her right to union representation at the meeting. Third, the employee is entitled to have a union representative at such meeting provided that does not result in undue delay. It is now settled law that the rights conferred by article 26.3 are substantive, and not procedural and that as a result where there is a breach of the provision, the resulting remedy is a declaration that the discipline is void ab initio. See, Re LaHay, 809/94 (Gorsky); Re Pedneault, 1568/98 (Briggs); Re Franssen, (supra) and Re Xanthopoulos, 1372/01 (Abramsky). 12 Was the grievor, in the instant case, made aware of the purpose of the meeting or of his right to union representation in advance of the meeting? Clearly not. If I accept the employer=s evidence at its highest, Mr. Poulin informed Ms. Gauld when she met him at his office, that he intended to present a NOID to an employee by the name of John Simpson at store #32. The employer=s position appears to be that Anotice to the union is notice to the employee@, and that therefore article 26.3 was complied with. I disagree for several reasons. Some collective agreements merely extend to employees a right to union representation at disciplinary meetings. In those cases, the employee has no right to any notice or information, and as long as a union representative is provided at the meeting, there is compliance. However, article 26.3 is not such a provision. It involves a right to certain information and the right is explicitly extended to the Aemployee@ and not to the union. The obligation to make the employee aware is on the employer. This was clearly not done. The uncontradicted evidence is that when the grievor attended the meeting on September 17, 2001 he had no idea of the purpose of the meeting. All witnesses testified that after he was handed the envelope, he asked Mr. Poulin, AWhat is this for? @ He would have known the purpose of the meeting only after he read the contents of the letter, i.e. the NOID. He became aware of the purpose at the meeting and not in advance of the meeting. 13 Similarly, I find that the employer did not make the grievor aware of his right to union representation at the meeting, in advance of the meeting. Taken at its highest, at the commencement of the meeting, Mr. Poulin introduced Ms. Gauld to the grievor as Ayour union representative@. This cannot constitute advance notice as contemplated by article 26.3. In Re Williams et al and Treasury Board, (1979) 22 L.A.C. (2d) 94 (Abbott) at p. 3, the collective agreement provided that AThe employer agrees to notify an employee 24 hours in advance of any disciplinary interview or disciplinary counselling session and to indicate the purpose of the meeting@. The Board at p.3 considered the purpose of the requirement of advance notice as follows: It must have been the intention of the parties to the agreement that the provision for advance notice serve some purpose. That purpose must have been to permit the employee, knowing that the purpose of the forthcoming interview related to his own alleged misconduct, to consider whatever defences or excuses might be available to him. As well, the advance warning would permit the employee to avail himself of the right secured to him by cl. 10.06, namely, to arrange to have a union representative accompany him to the interview. I recognize that in that collective agreement the notice was to be A24 hours in advance@, whereas here the collective agreement merely says Ain advance@. However, Ain advance@ must have been 14 inserted by the parties for a purpose. In my view, the purpose is the same as described by arbitrator Abbott in Re Williams (supra) the only difference being that these parties did not specify how much in advance the notice is to be given. Nevertheless, the only reasonable interpretation is that by requiring notice in advance, the parties intended to permit the grievor an opportunity to (1) consider and prepare what he would and would not say at the meeting and (2) decide whether he would exercise his right to union representation at the meeting, and if he did, to decide upon a union representative in whom he had confidence and to instruct and get advice from that representative. For example, if the only union steward available at the workplace is inexperienced, the grievor may wish to have a union representative from the union office, if that can be arranged without causing undue delay. Alternatively he may decide not to have a union representative. The grievor in the present case did not get an opportunity to do any of this because he became aware of the purpose of the meeting and of his right to union representation only at the meeting. That cannot constitute advance notice as contemplated in article 26.3. The parties were also in dispute as to whether the grievor=s right Ato have a union representative at such meeting provided this does not result in undue delay@ was also breached. However, given my finding that the employer contravened the notice aspects of 15 article 26.3, I need not determine that dispute. As the Board stated in Re Xanthopoulos, (supra) at p. 20 AThere are two aspects to article 26.3, a notice aspect (to be advised of the purpose of the meeting and the right to union representation) and the right to union representation itself. In this case, the employer violated the notice aspect, and it is irrelevant whether or not the right to union representation was satisfied@. For the same reason, it is unnecessary for me to consider whether article 26.3 was contravened with respect to the subsequent meeting held on September 20, 2001. The ultimate discipline imposed upon the grievor was directly related to the NOID handed on September 17, 2001. Since article 26.3 was not complied with on September 17, 2001, the discipline is void ab initio. Turning to the remedy, it was agreed that the union for the first time raised the article 26.3 issue on June 20, 2002. Citing the case law to the effect that article 26.3 rights are substantive rights, which may only be waived personally by the employee, counsel submitted that as a result of the late raising of article 26.3, the remedy ought to begin only from June 20, 2002. The employer did not take the position that the grievor had waived his article 26.3 rights with regard to the September 17, 2001 meeting and did not argue against the remedy suggested by the union. 16 Accordingly, the Board declares the discipline imposed on the grievor to be void ab initio. The employer is directed to compensate the grievor for all losses incurred from June 20, 2002 on. The Board remains seized in the event the parties have any disputes in implementing this decision. Dated at Toronto this 30th day of July, 2002. Nimal V. Dissanayake Vice-Chairperson