HomeMy WebLinkAbout1993-2498.Leeder.96-01-15 DecisionONTARIO EMPLOYES DE LA COURONNE
CROWN
EMPLOYEES DE L'ONTARIO
GRIEVANCE COMMISSION DE
REGLEMENT
BOARD DES GRIEFS
180 DUNDAS STREET WEST, SUITE 2100, TORONTO, M5G 1z8
180 RUE DUNDAS OUEST, BUREAU 2100, TORONTO (ONTARIO). M5G 1Z8
TELEPHONE/TELEPHONE: (4 76) 326- 1388
FACSIMILE : (4 76) 326- 1 396
GSB # 2498/93, 164/94, 296/94
OPSEU # 94B331, 94B628, 94B706
IN THE MATTER OF AN ARBITRATION
Under
THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT
Before
THE GRIEVANCE SETTLEMENT BOARD
BETWEEN
OPSEU (Leeder)
Grievor - and -
The Crown in Right of Ontario
(Ministry of Health)
Employer
BEFORE
:
FOR THE
GRIEVOR
FOR THE
EMPLOYER
H. Finley
J. Carruthers
D. Clark
M. McFadden
Counsel
Koskie & Minksy
Barristers & Solicitors
Vice-Chairperson
Member
Member
D. Strang
Counsel
Legal Services Branch
Management Board Secretariat
HEARING April 27, 1995
GSB 2498/93,
0 164/94, 0296/94
INTERIM DECISION
Prior to the hearing on the merits in this matter, the Union put forward a motion, on the
grounds that there had been a prior determination by a Board of Referees appointed under the
Unemployment Insurance Act. The decision is dated August 12, 1994, and in it the Board makes
a finding with respect to the Grievor’s alleged misconduct. The Employer did not appeal the
decision within the time limits, and was put on notice by Michael McFadden, Counsel for the
Union, that this determination in the Grievor’s favour might be an issue for the Union. The
preliminary motion was the result.
Mr. Leeder was suspended with pay from his employment on March 7,1994 and filed a
grievance. He was then dismissed on March 30,1994 and grieved his dismissal on that same
day. During April, 1994, he applied for Unemployment Insurance from April 3 , 1994 but was
disqualified. He appealed his disqualification from Unemployment Insurance “for losing [his]
job due to misconduct” and a hearing before the Board of Referees was held on August 12,
1994. A decision was issued on the same date. Counsel was retained for Mr. Leeder on
September 28, 1994, and the hearing before the Grievance Settlement Board with respect to hs
dismissal began on October 3, 1994. The final day for appeal of the Board of Referees decision
was on October 12, 1994, or later , according to Mr. McFadden and this was not disputed by Mr.
strang.
The claim procedure is set out in the Unemployment Insurance Act. It is as follows:
39.b (1) No benefit period shall be established for any person under thls Act
unless he makes an initial claim for benefit in accordance with section 41 and the
regulations and proves that he is qualified to receive benefit.
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(2) No benefit period shall be established under this Act unless the claimant
supplies information in the form and manner directed by the Commission, giving
the claimant’s employment circumstances and the circumstances pertaining to any
interruption of earnings, and such other information as the Commission may
require.
(3) On receiving the initial claim for benefit, the Commission shall decide
whether or not the claimant is qualified to receive benefit and notify hlm of its
decision.
Mr. Leeder was notified that his claim had been rejected on the grounds that he had lost his
employment by reason of his own misconduct. This disqualification was pursuant to Section 28.
(1) of the Unemployment Insurance Act. The section reads as follows:
28. (1) A claimant is disqualified from receiving benefits under this Part if he lost
his employment by reason of his own misconduct or if he voluntarily left his
employment without just cause.
Mr. Leeder appealed this disqualification pursuant to Section 79.
The relevant subsections are the following:
79. (1) The claimant or an employer of the claimant may at any time within thirty
days after the day on which a decision of the Commission is communicated to
him, or within such further time as the Commission may in any particular case for
special reasons allow, appeal to the board of referees in the manner prescribed.
(1.1) ...
(2) A decision of a board of referees shall be recorded in writing and shall include
a statement of the findings of the board on questions of fact material to the
decision.
Notice was sent to the Employer and a hearing was held before a three-person Board of Referees
chaired by Beverly McCormick on August 12, 1994. It was attended by the Grievor, Barry
Leeder, and Henry Brugma, a Union Staff Representative, as well as by Linda Eckhart, a
representative from the Human Resources Department of the Brockville Psychiatric Hospital.
Neither Mr. Leeder nor the Employer was represented by Counsel. Representations were made
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by Mr. Leeder on his own behalf. From its Statement of Fact, it appears that the Board’s
procedure did not involve the calling and cross-examination of witnesses but was rather a
presentation of the incident by the claimant and his representative, with some comment by the
Employer representative. According to Mr. McFadden, and this was not disputed by Mr. Strang,
Ms. Eckhart brought no witnesses, called no evidence (in the formal sense) and was not required
or requested to provide either evidence or witnesses by the Board of Referees. Nor was she
denied the opportunity to bring witnesses or present evidence. It is not clear whether or not
questions were posed by the Board members. In the result, the Board issued the following
findings, conclusion and decision on the same day, August 12, 1994.
ISSUE INVOLVED
The issue involved is whether or not the claimant lost his employment with
Ministry of Health (Brockville Psychiatric Hospital) on 30 March 1994 because of
his own misconduct and therefore is disqualified from receiving regular benefits
from 03 April 1993 and for the remainder of this claim pursuant to Sections 28 &
30.1 of the U.I. Act and 59.1 (1) of the Regulations.
STATEMENT OF FACT:
The parties in attendance are listed above [as set out]. The proceedings were tape
recorded. The claimant has worked over eight (8) years with Brockville
Psychiatric Hospital. The claimant and his representative disputed the allegations
leading to his dismissal for misconduct. The employer’s representative produced
no evidence to support a finding of misconduct. The Claimant’s rep. stated that
the claimant has been offered a position as a R.N.A. at the Brockville Psychiatric
Hospital and the employee’s rep. agreed with this statement. The claimant,
claimant’s representative and employer representative stated that the R.N.A. who
was on duty at the time of the incident has not received any disciplinary action.
The claimant stated he had two (2) days off, 07 & 08 March 1994 and was not
advised there was a problem until the afternoon of his shift 09 March 1994, when
he was telephoned that he was suspended. The claimant’s representative stated
that a note had been put on the chart for him to complete, however, he was
suspended before he saw the note. The claimant’s representative stated that Mr.
Leeder would have had sufficient time to chart had he not been suspended. The
employer’s rep stated that the claimant in fact could have charted when he
returned to his duty and had the person who was “terminally ill not died”, there
would not have been a problem.
CONCLUSION
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It is the unanimous opinion of the Board that on the basis of the evidence given by
the employer, the claimant and his representative, misconduct has not been
proven, beyond a reasonable doubt by the employer and the Commission. The
Board of Referees agrees that the CEC did not give the claimant the opportunity
to present his version to refute the allegations before making its decision to
disqualify him for reason of misconduct as per Digest of Benefit Entitlement
Principles, Chapter 6.1.4 & 7.2.1.
DECISION
The appellant’s appeal is ALLOWED.
The following section sets out the appeal procedure:
82. An appeal from a decision of a board of referees must be brought within sixty
days after
(a) the day the decision is communicated to the claimant, or
(b) the earlier of the day that the decision is communicated to the
claimant and the day that the decision is communicated to the
employer, if the decision is communicated to both the claimant and
the employer,
or such longer period as the umpire may in any case for special
reasons allow.
The Employer did not appeal the decision of the Board of Referees within the sixty day period,
and the Union submits that failure to appeal, renders the decision final and deprives the
Employer of the right to later, take issue with that decision. This then, Mr. McFadden
submitted, estops the Employer from taking a position different from the finding of the Board of
Referees. The factual question the Union argued, is identical to the question put to the Board
and is fundamental to the Board’s decision.
rescinded and that the matter be remitted to the parties, with the Panel remaining seized. The
Employer opposed this motion and both Counsel presented argument. The Board considered the
arguments and dismissed the motion, with reasons to follow.
Mr. McFadden asked that the discharge be
The following is an outline of the procedure, the arguments of both sides and the
jurisprudence presented, along with the Panel’s reasons for dismissing the motion:
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Mr. Strang argued that to establish the existence of issue estoppel, the decision must be
final and binding. However, Section 86 of the Unemployment Insurance Act allows for the
rescinding or amending of the decision on the subsequent presentation of new and/or mistaken
facts. That section reads as follows:
86. The Commission, a board of referees or the umpire may in respect of any
decision given in any particular claim for benefit rescind or amend the decision on
the presentation of new facts or on being satisfied that the decision was given
without knowledge of, or was based on a mistake as to, some material fact.
(1970-71-72, C. 48, S. 102)
The Employer, in Mr. Leeder’s case before the Board of Referees, presented no evidence;
therefore, any evidence will be new. He maintained that on that basis, and that alone, there is no
question of issue estoppel. He submitted that the Employer was a third party at Mr. Leeder’s
appeal and had nothing to gain there. Its presence was, at the initiative of the Unemployment
Insurance Commission, to provide for the Board of Referees the reasons for discharge. It would
be extraordinary and contrary to the purpose of estoppel, he asserted, if one party were estopped
and the other were not.
Mr. Strang does not view the issues in front of the two tribunals as identical. From his
perspective, the issue before the Board of Referees was whether or not Mr. Leeder should receive
benefits, and before the Grievance Settlement Board, whether Mr. Leeder should be returned to
his employment or his dismissal upheld. He made the further point that a number of the issues
before the Grievance Settlement Board, such as patient care and health and safety are non-
monetary. To apply the short term decision-making process concerned with benefits to the
substantial issues involved here, is inappropriate and could turn the Unemployment Insurance
Board of Referees’ decision into something it was never intended to be.
Mr. Strang argued also that there were significant labour relations reasons for not ruling
in favour of the Union.
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Counsel referred the Board to several cases. The Board found the following two cases
the most instructive in its consideration of the application of issue estoppel:
Rasanen v. Rosemount Instrument, [1994] 17 O.R. (3d) 267 (C.A.) proffered by the Union and
Re Canadian Union of Public Employees, Local 1394 and Extendicare Health Services Inc. Et
al [ 1993] 14 O.R. (3d) 65 (O.C.A.) proffered by the Employer.
Mr. McFadden submitted that Rasanen, supra, is the law in Ontario with respect to issue
estoppel and the relationship of decisions and findings of courts and administrative tribunals. In
that case, Henry Rasanen, was dismissed by his employer, Rosemount Instruments
Limited at the end of September, 1984 after he refused to accept either of two positions offered
to him following organizational changes. At the end of 1984, he filed, almost
contemporaneously, in the Court for wrongful dismissal and under the Employment Standards
Act, for termination pay which he claimed he should have received in lieu of notice, but from
which the employer claimed an exemption on the grounds that Mr. Rasanen had been “laid off
after refusing an offer by his employer of reasonable alternate work ‘‘ (ESA s. 57 (1 0) (c))
The Employment Standards Act procedure had three steps. In Step 1 , Rasanen’s claim
was investigated by an employment standards officer and refused on the basis that his “refusal to
accept this offer in late September 1984 is deemed to be a notification to your employer that you
intended to leave his employ.” In step two, Mr. Rasanen, as he was entitled to do, requested a
review of this decision by a second employment standards officer on the grounds that he “did not
voluntarily leave the employ of the company” and was “given insufficient time to properly
evaluate the alternate employment offered,” Mr. Rasanen was successful at this review. This
review officer concluded that neither offer represented “reasonable, alternate ernployment and
that the events could not lead to the inference that Mr. Rasanen quit, but rather that he was
terminated by his employer. In the result, he ordered that the employer pay the termination pay
to Mr. Rasanen. Step 3 of this process was initiated by the employer who was entitled under the
ESA to have a further review of the matter, this time, by an independent referee who held a
hearing at which both employer and employee gave evidence. The referee wrote in his decision:
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Clearly, the issue is a question of fact in each issue, and appears to turn essentially
on what are found to have been the reasonable expectations of the parties,
together, as one would anticipate with an examination of all of the circumstances
surrounding the alternative job offer.
The same approach to the issue can be seen in the decision of the various courts dealing
with the question of wrongful dismissal.
The referee “then examined carefully the relevant “wrongful dismissal” jurisprudence for
guidance on what constitutes a
“fundamental breach of the employment contract”, and concluded that the
significance of any given set of factors in determining whether such a breach had
occurred “appears to be a question of fact in each case”.
He made several findings of fact and decided in the end that
Rasanen, while “perfectly entitled, for his own reasons, to decline to accept either
of the options”, was not entitled in the circumstances to do so and to claim
termination pay as well.
Three years later, at the trial on the wrongful dismissal matter, at which both employer and
employee were represented by counsel, Rasanen was the only witness to testify. Following a
review of the facts and the reasons of the ESA referee, the trial judge concluded that the doctrine
of issue estoppel applied and that
... an analysis under either the Employment Standards scheme or the “wrongful
dismissal” jurisprudence would, . . .. yield no remedy for Rasanen.
In her analysis of Rasanen, Madame Justice Abella, explains issue estoppel:
At its simplest, issue estoppel is intended to preclude relitigation of issues that
have been determined in a prior proceeding. ... It arises as a doctrinal response to
the ‘‘twin principles ... that there should be an end to litigation and ... that the same
party shall not be harassed twice for the same cause”: Carl Zeiss-Stiftung (No. 2),
[1967] 1 A.C. 853 (H.L.) At p. 946. ...
[at page 2771
... Lord Guest summarized the requirements of issue estoppel as follows in Carl-
Zeiss-Stiftung, supra, at p. 93 5 :
.-.( 1)
(2)
that the same question has been decided;
that the judicial decision which is said to create the estoppel
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(3)
[At page 278
was final;
that the parties to the judicial decision or their privies were
the same persons as the parties to the proceeding sin whlch
the estoppel is raised or their privies.
... the policy objectives underlying issue estoppel, such as avoiding duplicative
litigation, inconsistent results, undue costs, and inconclusive proceedings, are
enhanced in appropriate circumstances by acknowledging as binding the
integrity of tribunal decisions.
[Emphasis added]
Madame Justice Abella confirmed that the three criteria for the application of issue
estoppel were present when reviewing the decisions of the ESA referee and the trial judge and
upheld the judge’s decision that the decision of the ESA should stand. She made the following
determination and comments with regard to them:
Was the question the same as was contested in the earlier proceedings and was it so
fundamental to the decision that it could not stand without the determination of that
question?
Mr. Rasanen received conclusive answers to the question, as to whether there was “any
entitlement by the employee to compensation from the employer arising from the
termination of his employment”, from the ESA for any subsequent litigation and that in
deciding that reasonable alternate employment was offered, the referee decided the
central question of whether or not entitlement existed in the wrongful dismissal action.
Was there a prior final, judicial decision ?
Mr. Rasanen was unable to identify any specific disadvantage resulting from the
procedure in the referee hearing other than “traditional tools like discovery, production or
costs” and he was given and took full opportunity to make his case and respond to that of
his adversary. Further, “the hearing by the referee, if not technically “judicial”, is
designed to be an independent, fair, impartial and binding adjudicative process, and
8
therefore satisfies the spirit of the requirement.”
She also found that the referee’s decision is subject only to judicial review, and
given that none was sought, the decision of the referee is final.
[Emphasis added]
Were the same parties or their privies common to both proceedings ?
Madame Justice Abella concluded that, while the Step 3 proceeding was between the
Employer and the Ministry of Labour, this proceeding was an outcome of a claim
initiated by the employee and participated in at Steps 1 and 2 by him. As well,
The Ministry of Labour, through counsel, appeared on the
appellant’s behalf for the purpose of promoting his claim and
defending the officer’s decision in his favour. He not only had
notice of every step of the process and hearing, he was present at
the hearing, gave evidence, heard the evidence and argument of all
parties, and submitted or reviewed the relevant documentation
filed.
She viewed this process as “a dispute between and employer and an employee”
and concluded that in that forum the employee
clearly called the witnesses he wanted, introduced the relevant
evidence he needed, and had the chance to respond to the evidence
and arguments against him. ... He had a meaningful voice, through
his own evidence and through the assistance of the ministry, in a
proceeding which decided the very issue he sought to raise in his
subsequent action.
It was further noted that
The fact that an employee is not prevented from seeking a civil remedy does not,
it seems to me, lead inexorably to the conclusion that he or she can do so as if no
prior proceeding before the tribunal had taken place. If employees wish to purse a
more expeditious route yielding statutory benefits, they have access to the
Employment Standards Act provisions and scheme. If, on the other hand, they
wish to formulate their claim as a civil action seeking broader remedies, this
option is equally open to them. Whichever forum is chosen first, issue estoppel is
reciprocally available and parties may find, in any subsequent proceeding , that
they are bound by a prior determination on the same issue, even if that
determination was made by a tribunal.
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CUPE and Extendicare, supra, “is an appeal by Extendicare Health Services Inc. (the
“employer”) from an order of the Divisional Court which quashed an award of a board of
arbitration on jurisdictional grounds.” The issue which was originally put before the Ontario
Labour Relations Board was whether or not the Employer could modify the hours of work
between the expiration of one collective agreement and the signing of another. A new collective
agreement containing the same “normal hours of work” clause was imposed as a result of interest
arbitration and then the Board’s decision was issued. In it the Board found that the modification
violated the clause defining “normal hours of work” in the previously subsisting collective
agreement and thereby the ‘‘freeze” provisions of the governing legislation. The Union filed a
grievance and when the arbitration board ruled that the modification did not violate the
collective agreement, it applied for judicial review and one of the arguments that it presented was
that the board of arbitration was bound to follow the decision of the labour board. Its argument
was founded on s. 106 (l), now s. 108 (1) of the Labour Relations Act, which reads as follows:
The Board has exclusive jurisdiction to exercise the powers conferred upon it by
or under this Act and to determine all questions of fact or law that arise in any
matter before it and the action or decision of the Board thereon is final and
conclusive for all purposes.
(Emphasis added by the Court)
The Divisional Court, applying a standard of “correctness” rather than “reasonableness”, agreed
that the section “[m]akes the Labour Board’s interpretations binding in a subsequent arbitration
between the same parties on the same issue” and held that
On its face, s. [ 108 is unconfined. In our view, if the Legislature had meant to
limit its operation as suggested by [the employer’s counsel] it would have said
something to that effect rather than making it explicitly applicable “for all
purposes”;
and that
The words “final and conclusive” do not in themselves imply a binding effect on
another administrative tribunal. The words “final and conclusive” in s. 108 (1)
and (2) mean that “the issue as between the parties has been settled and no further
steps need be taken for the decision to qualify as a determination of the rights of
10
the parties. In other words, the ruling is not an interim one”. (Bradco, supra,
p. 17).
The Court commented further that
... It is the parties to the decision which are bound, not the tribunalper se. The
statute does not create a hierarchy of decision-making bodies but leaves each
board free to exercise its power within the sphere allocated to it to resolve the
disputes presented to it. The arbitration board, specified by the Act to resolve
disputes between the parties under their collective agreement, asserted its own
jurisdiction as it was entitled to do and interpreted the collective agreement.
The issue before the Court of Appeal, was whether the board of arbitration was bound to apply
the interpretation of the earlier collective agreement arrived at by the Labour Board when the
same clause between the same parties is involved in a subsequent agreement. It was argued that
the arbitrator was bound by the words “final and conclusive” in s. 108 (1) and stare decisis (the
principle of precedent) to apply the decision of the Labour Board. The Court ruled that thereon
is final and conclusive and refers to the decision of the Labour Board and not to its findings of
fact and law. Its interpretation applied, the Court ruled to the prior collective agreement, not to
the new collective agreement under which The Labour Board had no jurisdiction. The Court
also considered the inter-relationship between the Labour Board and a board of arbitration and
noted that
The purpose of a Labour Board proceeding is very different from the purpose of
an arbitration proceeding. The Labour Board proceeding is concerned with
employee’s statutory rights, while an arbitration proceeding involves the union’s
contractual rights. Here, the Labour Board was concerned primarily with the
public policy of maintaining the status quo during the period when the previous
collective agreement had expired and a new one had not yet been entered into or
imposed. The focus of the board of arbitration was the desire of the parties for
private relief in the ongoing relationship.
The Court noted as well that
It is clear that one board of arbitration is not bound by an interpretation of a
collective agreement that has been rendered by another board of arbitration:
Isabelle v. Ontario Public Service Employees Union, [ 198 1] 1 S.C.R. 449, 122
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D.L.R. (3d) 385. A pragmatic approach would dictate that the same should be
true where the Labour Board has exercised a parallel jurisdiction to that of an
arbitrator initially.
Madame Justice Weiler addressed the applicability of issue estoppel or res judicata:
...
contending the contrary of any precise point which, having once been distinctly
put in issue, has been solemnly found against him.
[Emphasis added]
Pursuant to the doctrine of issue estoppel, a party is precluded from
Issue estoppel is a principle of common law. A labour arbitration is not
obliged to apply such a common law principle strictly. The same may be said of
res judicata.
Brown and Beatty, supra, state at para. 2:3220, p. 2-74:
Because the relationship of the parties to a collective
agreement is a continuing one and because in different grievances
the same clause may be the subject of interpretation and
application on successive occasions, both the doctrine of res
judicata and issue estoppel have been qualified to some extent in
grievance arbitration. Generally, the view has been expressed that
res judicata does not apply nor is the arbitrator bound by a prior
award as to construction of the agreement. Rather, it is said that as
a matter principle, the prior award should be followed unless the
arbitrator has a clear conviction that the earlier interpretation is
wrong. Moreover, in that event it has been suggested by one
arbitrator that a previous finding on the same issue imposes an
obligation on the arbitrator who wishes to depart from it, to
analyze clearly the shortcomings of the previous award and lay a
solid foundation for the departure ... And this approach has been
followed whether it is the same language in the same agreement or
in subsequent agreements where it has remained unchanged.
(Emphasis added)
Specific authority for the general principle that res judicata and issue estoppel do
not strictly apply is found in Isabelle, supra, per Laskin, C.J.J. at p. 457 S.C.R., p
390 D.L.R..
In his concurring decision, Justice Doherty also considered the common law principles of res
12
judicata and issue estoppel: ..
Assuming that the application of those common law principles would
foreclose an independent interpretation of the collective agreement by the
arbitration board, I am satisfied that the arbitration board was not obligated to
apply either doctrine.
Although the arbitration board framed the issue in terms of the extent to
which it was bound to accept the interpretation of the Board, I see the issue as
essentially involving a determination with respect to the weight to be given by the
arbitration board to the Board’s interpretation of the collective agreement. Res
judicata is a rule of evidence. Assuming the requirements of the doctrine are met,
the party against whom the issue was decided in the earlier litigation cannot
proffer evidence to challenge that result. Looked at from the vantage point of the
successful litigant in the earlier proceedings, the doctrine operates to admit into
evidence at the second proceeding, the judicial determination of the relevant issue
at the earlier proceedings. Not only is that earlier determination rendered
admissible, it is also declared to be conclusive with respect to that issue: Spencer-
Bower and Turner, The Doctrine of Res Judicata, 2nd ed. (1 969), at p.9; Sopinka,
Lederman and Bryant, The Law of Evidence in Canada (Markham: Butterworths,
1992) at pp. 989-90.
The legislature did not, however, intend that boards of arbitration should
necessarily adhere to the common law rules of evidence. The statute envisions a
more flexible evidentiary regime. Section 44(8)(c) (now s. 45 (8) (c)) of the
Labour Relations Act provides:
44 (8) ....an arbitrator or ...an arbitration board, as the case may be,
has power,
(c) to accept such oral or written
evidence as the arbitrator or the
arbitration board, as the case may be,
in its discretion considers proper,
whether admissible in a court of law
or not.
In this case, the arbitration board applied the common law rule of res judicata or issue estop
the interpretation to be placed on the relevant provisions of the collective agreement. The
arbitration board, however, declined to hold that the prior decision was conclusive on that issue.
13
Decision
The Board, considered the arguments of the parties on this issue and the jurisprudence
submitted, in particular, the two cases above, and has concluded that the criteria for the
application of issue estoppel are not met in the instant case. The three criteria are the following:
Was the question the same as was contested in the earlier proceedings and was it
so fundamental to the decision that it could not stand without the determination of
that question?
1.
2. Was there a prior final, judicial decision ?
3. Were the same parties or their privies common to both proceedings ?
Issue estoppel requires that all three criteria be met. They are considered below
1. Was the question the same as was contested in the earlier proceedings and was it so
fundamental to the decision that it could not stand without the determination of that
question?
According to Mr. McFadden, the question of whether “misconduct” on the part of the grievor
occurred, was determined by the Board of Referees in the negative and was determined beyond a
reasonable doubt. Indeed, that is what they have written in their decision, noting that the
Employer adduced no evidence. He contends that the factual question is identical to and
fundamental to our decision. Mr. Strang submits that the questions put to the two tribunals
differ. It is his view that the question put to the Board of Referees was whether or not Mr.
Leeder would receive Unemployment Insurance benefits and what sort of conduct would
disentitle him to benefits whereas, the question put to this Board, was whether or not, under the
Collective Agreement, the dismissal of the Grievor should be upheld, mitigated or revoked.
In the decision of the Board of Referees, the issue of misconduct is referred to in relation
to the allegation of failure to chart, whereas in the case before this Panel, there are two
allegations of misconduct; one, the failure to chart; and two, sleeping while on duty and failure
to carry out the charge nurse responsibilities. Further, this Board views the issue of the “charting
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misconduct” as one of the bases on which the decision of whether or not the dismissal of Mr.
Leeder should be upheld, mitigated or revoked. It does not view it as the fundamental issue
before this Board. Therefore, the Panel finds that this criterion is not satisfied.
The purpose of the hearing before the Board of Referees was to determine whether or not,
based on the facts presented, the disqualification should be upheld, thereby depriving Mr.
Leeder of his insurance benefit. The Employer was represented at the appeal by a member of the
Human Resources Department.
Leeder’s appeal against disqualification. There was no evidence before the Panel that the
Employer took a position that Mr. Leeder should be prevented fiom succeeding in his appeal
against disqualification fiom Unemployment Insurance, although Mr. McFadden concluded that
the Employer’s presence at the hearing was indicative of that. Both parties were aware that the
grievance process set out in the Collective Agreement provided the usual arbitral forum of the
Grievance Settlement Board for the presentation of evidence of both sides concerning the
allegations against the Grievor relating to his dismissal.
viewed the Unemployment Insurance appeal hearing as an optional forum for the determination
of the ultimate outcome of the dismissal. Reinstatement, which Mr. Leeder was seeking, was not
a possible remedy in the context of the Board of Referees.
However, the Employer did not call evidence or oppose Mr.
There was no evidence that either party
2. Was there a prior final, judicial decision ?
Mr. McFadden submitted that the Employer attended, had an opportunity to call
witnesses and present argument, and chose not to do so. Further, it chose to forego the
opportunity to appeal under the Unemployment Insurance Act and its failure to do so renders the
decision final. Mr. Strang made the point that since this same Act allows for the amendment or
rescission of decisions rendered under the Act, in s. 86:
86. The Commission, a board of referees or the umpire may in respect of any
decision given in any particular claim for benefit rescind or amend the decision on
the presentation of new facts or on being satisfied that the decision was given
without knowledge of, or was based on a mistake as to, some material fact.
15
Since the Employer presented no evidence, it stands to reason, Mr. Strang submitted, that any
evidence would be new and could alter the original decision, which means that the decision
rendered by the Board of Referees cannot be said to be “final and binding”.
This Panel has concluded, in deciding that the first criterion did not apply, that a final
determination has not been made on the issue to be decided by it. Therefore, the second criterion
has not been met.
3. Were the same parties or their privies common to both proceedings ?
Mr. McFadden submitted that the parties to both proceedings were the same. Mr. Strang
argued that the Employer was not a party to that proceeding but was there only to see that the
“proceeding was run properly” and to articulate the reasons for dismissal.
This Board is of the view that the proceeding held under the Unemployment Insurance
Act was between the disqualified insured employee and the Unemployment Insurance
Commission. It is the understanding of this Panel that employers who dismiss employees do not
necessarily go on to oppose their Unemployment Insurance Appeals in the event that dismissed
employees are disqualified. While an employer may wish to dismiss an individual, he or she
may not wish to try to disqualify that person from an income derived from an insurance scheme
that both have paid into, and therefore, one cannot reasonably make the assumption that an
employer’s attendance at the hearing is conclusive of the fact that the purpose of his/her
attendance is to deprive the dismissed employee of unemployment insurance benefits. Indeed no
evidence was presented to support such a premise. The issue of Mr. Leeder’s entitlement to
unemployment insurance benefits was only an issue between the Unemployment Insurance
Commission and Mr. Leeder. It was not an issue between Mr. Leeder and the Employer or
between the Employer and the Unemployment Insurance Commission. To qualify as a “privy”
to an action, one must have some interest in the outcome. The Employer’s situation and position
are in no way affected by the outcome of the decision of this Board of Referees.
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This Panel has concluded that since the Employer does not have an interest in the
outcome of the actual issue before the Board of Referees, it cannot be said to be either a party or
a privy to that proceeding and as a result, the third criterion is not met.
The Board wishes to comment, as well, on two particular concerns which arise for the
Panel if the outcome of a Board of Referees under the Unemployment Insurance Act were to be
determinative of dismissal grievances brought under the Collective Agreement between these
parties. The Unemployment Insurance Board of Referees was not designed as an alternative to
the Grievance Settlement Board. The Crown Employees’ Collective Bargaining Act, s. 7.3
expressly provides that the Grievance Settlement Board will determine disputes between the
parties and s. 18-(2) provides that an employee has a right to grieve that he has been disciplined
or dismissed or suspended from his employment without just cause. Further, in this same Act
and in the Collective Agreement, the Grievance Settlement Board is given the authority to decide
matters in dispute between the parties and to substitute a lesser penalty for discipline or
dismissal. Mr. Strang rejected Mr. McFadden’s suggestion that the Grievance Settlement Board
Panel should defer to the Unemployment Insurance Board of Referees under a federal statute and
asserted that he knew of no authority which would support the notion that a federal tribunal can
usurp the authority of a provincial one in a given area. The Panel has a concern that if it became
the norm that unemployment insurance disqualification appeals were determinative of dismissals
then both parties would, for all intents and purposes, find themselves in the position of litigating
dismissals in a forum other than that to which they have a right and to which they have agreed
and further, one in which the real issue is not between the employer and the appellant but rather,
between the appellant and the Unemployment Insurance Commission. These appeals are almost
always heard and decided in advance of the arbitration hearings because the decision involves
benefits to the appellant which permit him/her to meet ongoing living expenses and thus there is
a certain urgency. This urgency is recognized by those administering the appeal hearings. The
parties have chosen and agreed to a mechanism for dealing with dismissals and they have spelled
that out in their Collective Agreement. This mutually agreed to process should not, in this
Panel’s opinion, be usurped. This is not a case in which, as in Rasanen, the initiator of the
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processes had a choice of forum in which to proceed, and, having chosen to proceed in both the
inititator was left with the decision of the earlier and possibly less advantageous forum. Here,
Mr. Leeder had to proceed under the Unemployment Insurance Act to have his disqualification
overturned, and to proceed under the Collective Agreement to have his dismissal heard.
The Panel also is concerned with what it perceives as a disparity in the quality of the
procedures. While each procedure may suit the particular tribunal which is following it, to
assume that these are necessarily adequate or appropriate, one for the other, is not giving
sufficiently serious consideration to the implications of dismissal for either the employer or the
employee. The Board of Referees defined the issue as to whether or not the claimant lost his
employment and was disqualified because of his own misconduct. It found that “on the basis of
evidence given by the employer, the claimant, and his representative” that misconduct has not
been proven beyond a reasonable doubt. This Panel does not believe that the procedure used for
obtaining and testing evidence in this Board of Referee forum provides the safeguards necessary
to ensure that evidence is presented and tested in a reasonable and rigorous way in order to
ensure, to the extent possible, its reliability when the employee’s job, livelihood, and career are
at stake. Two of the three individuals who “gave evidence” had nothing to do with the incident
and their only knowledge of it was through other persons. Had the finding of the Board of
Referees been that the misconduct took place as alleged by the Employer, and had the process
been the same, the Panel would have had precisely the same concerns in applying that finding in
its consideration of Mr. Leeder’s dismissal. Further, in the hearing of the dismissal, the onus is
on the employer to prove, on the balance of probabilities, that its dismissal of the employee was
justified. There is no such onus in the procedure before the Board of Referees. In fact, in that
case, the onus is on the employee to prove that he/she was not dismissed for misconduct. In
Rasanen, while one procedure was a court procedure and the other a tribunal procedure, the
parties to those procedures were in an adversarial relationshp and dealt with their evidence and
arguments accordingly, resulting in processes in which the evidence was similarly presented and
tested. Mr. McFadden argued that as long as the opportunity was provided, then that sufficed.
However, the expectation of the Employee and the Employer entering into the Unemployment
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Insurance Board of Referees hearing was quite different from their expectations on entering into
the arbitral process. The process which appears to have been offered at the Board of Referees,
renders that process insufficient for the determination of a dismissal grievance.
In summary then, the Panel found that none of the three criteria, all of which must be
present to establish issue estoppel, was present in the instant case. The preliminary objection of
the Union therefore is dismissed.
Dated at Kingston
this January 15, 1996.
D.M. Clark, Member
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