HomeMy WebLinkAbout1994-0809.LaHay.95-08-15 ONTARIO EMPLOYES DE LA COURONNE
CROWN EMPLOYEES DE L'ONTARIO
GRIEVANCE COMMISSION DE
SETTLEMENT REGLEMENT
BOARD DES GRIEFS
180 DUNDAS STREET WEST, SUITE 2700, TORONTO, ONTARIO. M5G 1Z8 TELEPHONE/TELEPHONE: (416) 326-1388
180, RUE DUNDAS OUEST, BUREAU 2100, TORONTO (ONTARIO). M5G 1Z8 FACSIMILE/TELECOPIE (416) 326-1396
GSB # 809/94
OPSEU # OLB148/94
IN THE MATTER OF AN ARBITRATION
Under
THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT
Before
THE GRIEVANCE SETTLEMENT BOARD
BETWEEN
OLBEU (LaHay)
Grievor
- and -
The Crown in Right of Ontario
(Liquor Control Board of Ontario)
Employer
BEFORE M. Gorsky Vice-Chairperson
FOR THE E. Mitchell
GRIEVOR Counsel
Koskie & Minsky
Barristers & Solicitors
FOR THE R. Drmaj
EMPLOYER Counsel
Hicks, Morley, Hamilton, Stewart, Storie
Barristers & Soliciitors
HEARING June 5, 1995
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D E C I S I O N
Ms . Mitchell, counsel for the Union, made the following
statements at the opening of the hearing with respect to the
facts said to be material to her application for a declaration
that the discharge of the Grievor was void ab initio :
1 . On June 13 , 1994, Gordon Holmes, the Store Manager at the
store where the Grievor worked in Orillia (Store #175) , handed
the -Grievor a letter dated June 10 , 1994, from Bob Porter,
District Manager #15 of the Employer' s Western Region (Exhibit
4) :
Dear Mr. Lahay [sic] :
RE: NOTICE OF INTENDED DISCIPLINE
On receipt of this letter June 13 , 1994 you are hereby
relieved form duty with pay. This action results from
a security investigation in which you were observed
using improper cashiering procedures on May 4, 1994 .
This is not a disciplinary response but as a result of
these events disciplinary action may be taken against
you .
Within three (3) calendar days from receipt of this
letter, you are asked to submit a written statement by
registered mail to my attention, explaining the matter
mentioned above .
Should a meeting be scheduled following the receipt of
your written statement, you are entitled to Union
Representation, as discipline may result .
If you choose not to respond, Management will act on
currently available information.
A decision concerning this matter will be made known to
you in due course .
(Emphasis in original)
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2 . On June 14, 1994 Mr. LaHay sent Mr. Porter his written reply
(Exhibit 5) to Exhibit 4 .
3 . On June 23 , 1994 , Ron Fisher, Regional Director, Western
Region of the Employer sent Mr. LaHay a letter dated the same day
(Exhibit 6) by Priority Post, notifying him that his employment
with the Liquor Control Board of Ontario was "terminated for
cause, namely, improper cashiering procedures, effective this
date, June 23 , 1994 . "
4 . On June 20 , 1994, Mr. LaHay filed a grievance (Exhibit 2) ,
which it was acknowledged related to his receipt of the Notice of
Intended Discipline (Exhibit 4) in which he grieved:
Statement of Grievance (Clauses Violated)
Article 2 . 1 and 2 . 7 of OLBEU agreement and article 43 . 1
of Labour Relations Act also all of the articles of
OLBEU, CECBA or Labour Relations Act pertaining to this
grievance .
5 . The settlement desired was :
To receive all wages, benefits and seniority lost
To be made in hole [sic]
6 . On June 28 , 1994 , Mr. LaHay filed a further grievance
(Exhibit 3) , which it was agreed related to his being discharged
on June 23 , 1994 . This grievance, in its statement of grievance
and relief requested was identical to Exhibit 2 .
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7 . On August 8 , 1994 , Mr. Fisher sent a letter (Exhibit 8) to
Mr. LaHay in connection with his suspension grievance (Exhibit 2)
indicating that the parties had agreed that a third stage meeting
would not be held and that his grievance would "advance to the
Grievance Settlement Board. " At the hearing it was agreed that
the discharge grievance was also to go directly to the Grievance
Settlement Board without the need to follow the other steps of
the grievance procedure .
8 . Ms . Mitchell wrote a letter dated August 25 , 1995 (Exhibit
7) to Mr. Drmaj , counsel for the Employer "Re : Discharge
grievance of David LaHay GSB #809-9411 , in which she states :
We hereby notify you that, in addition to the Articles
grieved in the grievance dated June 20 , 1994, the Union
also grieves that the employer has violated Article
26 . 3 of the Collective Agreement . In particular, the
Union also grieves that the employer did not offer the
grievor union representation in advance of the meeting
of June 13 , 1994, at which time the grievor was
suspended. The Union shall raise a preliminary
objection at the hearing of June 5th, 1995 , that the
discipline is void ab initio.
It is evident that Ms . Mitchell was referring to both
grievances although the only one submitted to arbitration was the
discharge grievance .
9 . Art . 26 . 3 , referred to in Ms . Mitchell' s letter is 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
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meeting. The employee shall be entitled to have a
Union representative at such meeting provided this does
not result in undue delay.
10 . By letter dated August 2 , 1994, Jean Chaykowsky, Grievance
Officer for the Union, wrote to the Grievance Settlement Board
requesting a "hearing by the Crown Employees' Grievance
Settlement Board in accordance with art . 27 . 6 of the collective
agreement, " with respect to the discharge grievance that is
before me .
11 . As has been noted above, at the opening of the hearing, Ms .
Mitchell, raised the preliminary objection referred to in Exhibit
7 , based on Mr. LaHay not having been made aware of the purpose
of the June 13th meeting and of his right to Union representation
as required by art . 26 . 3 .
12 . Mr. LaHay had been employed by the Employer for
approximately 10 years, first as a casual employee in the
capacity of a store clerk between 1984 and 1989, in which latter
year he became a full-time employee.
13 . It was noted that, if necessary, evidence would be called
with respect to Mr. LaHay' s havingi been disciplined while a
casual employee without this fact having affected his being hired
as a full-time employee . I was advised that the previous
discipline also related to improper cashiering procedures and
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that this did not affect Mr. LaHay' s being hired as a full-time
employee .
14 . Ms . Mitchell indicated that, if necessary, evidence would be
called that the Grievor, on June 13 , 1994, was working at his job
as a store clerk when he was called into the Store Manager' s
office (Gordon Holmes) at approximately 11 : 30 a .m. Mr. Holmes
was said to have informed Mr. LaHay that he was to attend with
him at his office after closing his cash.
15 . After the Grievor closed his cash, he and Mr. Holmes
proceeded into the latter' s office followed by three other
persons, two of whom were LOBO inspectors : Martha Dugas and David
Hadlow, the third person being Police Sergeant Crockford, who was
attached to the Orillia Police Department .
16 . After all of the persons in the room were seated, Mr. Holmes
handed Mr. LaHay the letter of June 10, 1994 (Exhibit 4) . It was
Ms . Mitchell' s position that the meeting of June 10 , 1994
represented the beginning of the process leading to the
disciplinary response that culminated in Mr. LaHay being
terminated.
17 . Mr. Holmes gave Exhibit 4 to Mr. LaHay at the beginning of
the meeting and then asked him what he was doing on May 4th. The
Grievor was supposed to have replied that he did not know what he
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was doing then and inquired as to whether he was, in fact,
working on that day.
18 . Mr. Holmes then informed the Grievor that he had been
observed on May 4, 1994 while engaged in improper cashiering
procedures in the form of taking cash from the cash drawer, and
he was asked if he had any explanation for his actions .
19 . The Grievor is supposed to have replied: "I don' t know -
maybe I was making change for myself . "
20 . Sergeant Crockford is then supposed to have said: " Is that
your statement . "
21 . The Grievor is supposed to have responded: "I 'm not making a
statement . "
22 . Sergeant Crockford then informed Mr. LaHay that he was being
charged with theft under $1000 . 00 and placed him under arrest and
read him his rights .
23 . Mr. Holmes then closed out the Grievor' s cash drawer,
following which Sergeant Crockford asked the Grievor if he was
prepared to co-operate, in which case he would not be placed in
handcuffs . The Grievor indicated that he would co-operate and
left the store with the officer for the police station where he
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was fingerprinted. Later that day, Mr. LaHay came back to store
#175 and voluntarily turned in his keys .
24 . Prior to the meeting of June 13th, an investigation of the
Grievor had been conducted by the Employer at store #175 and he
was secretly observed and his actions videotaped by an LCBO
investigation team. The videotapes were reviewed toward the end
of May or early in June of 1994, and the police were contacted
before the meeting above referred to.
25 . Mr. LaHay consulted with a lawyer on June 14, 1994, prior to
preparing his response to Exhibit 4 . Although Exhibit 4 is dated
June 10, 1994, it was handed to the Grievor by Mr. Holmes on June
13 , 1994 in the manner above recorded.
26 . After the Grievor met with Union representatives, Exhibit 2
was filed on June 20 , 1994 .
27 . There were no other meetings held by the parties prior to
the Grievor being discharged on June 23rd or thereafter to the
date of the hearing on June 5 , 1995 .
28 . The criminal charges laid were dismissed on a preliminary
motion.
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29 . The position of the Union was that the discharge of the
Grievor was void ab initio because the language of art . 26 . 3 of
the collective agreement was said to give the Grievor a
substantive right, and that failure on the part of the Employer
to adhere to the requirements of that article voided the
imposition of discipline .
30 . Accordingly, it was submitted that I had no jurisdiction to
hear the matter on the merits, and that I should declare the
discharge to be void ab initio, and that I did have jurisdiction
which respect to the assessment of amounts owing to the Grievor
and other relief .
Mr. Drmaj , counsel for the Employer, made the following
staements with respect to the facts stated by Ms . Mitchell in
support of her application:
1 . The Employer accepted most of the facts set out by Ms .
Mitchell . However, there were certain of them which it did not
fully accept .
2 . Mr. Porter, the District Manager #15 responsible for store
#175 in Orillia, had had discussions with LOBO security
personnel, as a result of which it was decided to conduct an
investigation of the Grievor' s conduct as a cashier through the
use of video recording and surveillance techniques . Based on the
t
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initiatives taken, the Employer' s representatives concluded that
Mr. LaHay had been "implicated in a breach of cashiering
procedures established by the employer. " His actions were
regarded as representing a "disciplinable event, " as well as
amounting to possible criminal activity in the nature of theft .
3 . Mr. Porter had been informed about what had been observed
and what was recorded on videotape concerning the "cashiering
problems" and was also informed that the LCBO security personnel
wished to proceed with the matter to see if criminal charges
"could or should be laid. "
4 . A meeting was scheduled with representatives of the Orillia
Police Department, and until the meeting was held the issue of
discipline was "put in abeyance . "
5 . On or about June 10, 1994 the investigators went to see
Sergeant Crockford of the Orillia Police Department who was in
charge of the investigation of possible criminal activity.
6 . Mr. Porter was then informed by the Employer' s security
personnel that there was sufficient evidence to lay criminal
charges .
7 . It was Mr . Porter' s responsibility to be present at meetings
involving discussions related to the laying of criminal charges .
10
8 . He was unable to attend the meeting of June 13 because of
family problems and it was indicated that he would testify, if
that became necessary, that that is the reason why the letter
dated June 10th (Exhibit 4) was given to the Grievor on June 13
by Mr. Holmes .
9 . On June 10, 1994, Mr. Porter instructed Mr. Holmes that he
was to attend a meeting on June 13th with the LCBO investigators
at the Orillia police station in order to view the videotape, at
which time a determination would be made as to whether criminal
charges would be laid.
10 . Mr. Porter was also said to have advised Mr. Holmes to pick
up a letter in Mr. Porter' s office in Barrie, being the Notice of
Intended Discipline (Exhibit 4) .
11 . Mr. Holmes was said to have picked up the letter early in
the morning of June 13 and then to have met with the LCBO
investigators at the police station in Orillia along with
Sergeant Crockford where they reviewed the videotape and other
details of the investigation. It was at that time that Sergeant
Crockford is supposed to have informed Mr. Holmes and the
investigators that in his view there was sufficient evidence to
lay criminal charges against Mr. LaHay. A discussion then took
place relating to the way that the investigators, Mr. Holmes and
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Sergeant Crockford would return to the store and confront and
arrest Mr. Lahay.
12 . When Mr. Holmes returned to the store along with the
investigators and Sergeant Crockford, he asked another employee
to replace Mr. LaHay and instructed the Grievor to come to his
office .
13 . Mr. Drmaj did not agree with Ms . Mitchell' s recitation of
the order of events at the meeting of June 13th. In particular,
he did not agree that the arrest took place only after the Notice
of Intended Discipline was given to Mr. LaHay. It was the
position of the Employer that the Grievor was told who the other
persons at the meeting were immediately upon their entering the
room and the purpose of their being present, including the
handing to Mr. LaHay of the Notice of Intended Discipline
(Exhibit 4) . It was suggested by Mr. Drmaj that the Grievor was
escorted to the station where he was then placed under arrest and
charged.
14 . Mr. Drmaj stated that evidence would be called, if
necessary, that prior to the meeting of June 13th Mr. Porter,
who had a good relationship with the Zone Representative of the
Union, Keith O'Toole, advised Mr. O'Toole that an investigation
was taking place and that some action would be taken. Mr. Drmaj
12
did not indicate that Mr. O' Toole was told what the action was
about or that it related to the Grievor.
15 . After Mr. Porter returned to his office in Barrie on June
13 , 1994, he telephoned Mr. Holmes and was told that the Grievor
had been arrested by Sgt . Crockford and that Mr. Holmes had given
the Grievor Mr. Porter' s Notice of Intended Discipline (Exhibit
4) .
16 . Mr. Porter then informed Mr. O'Toole what had taken place.
17 . Evidence would be called, if necessary, that Mr. O' Toole
never raised any issue about his not being present at the meeting
of June 13th, nor did he ask for a further meeting or for
"anything else . "
18 . The procedure followed by the Employer when discipline may
be imposed is to issue a Notice of Intended Discipline, which
asks the employee to whom it is given to furnish an explanation
for his behaviour within three days .
19 . After receiving the employee' s response, or if none is
forthcoming, the Employer then issues discipline, if warranted.
During the period of the operation of the Notice of Intended
Discipline, the employee continues to be paid.
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20 . After the Grievor filed his grievance (Exhibit 2) , the
letter of discharge (Exhibit 6) was issued by Mr . Fisher, and
that was the only discipline assessed in relation to the incident
before me .
In response to Mr. Drmaj ' s recitation of the Employer' s view
of the facts, Ms . Mitchell stated:
1 . As a zone representative of the Union, Mr. O'Toole was
responsible for filing grievances in the field and conducting
second stage grievance meetings . Third stage grievance meetings
are conducted at the "next layer, " which was identified as a duly
authorized representative of the Union, as defined in s . 27 . 1 (a)
of the provisions with respect to the grievance procedure
contained in the collective agreement .
2 . In this case, subsequent to the June 13th meeting, there
were no further meetings of any kind between the parties with
respect to this matter where the Union might have informed the
Employer of its position or amended the grievance .
3 . There were no pre-hearing meetings held, as it was agreed
that there was no point in doing so in dismissal cases and there
were no meetings where the Union had an opportunity to elaborate
J
on or amend the grievance .
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4 . The Union has no knowledge of any discussions between Mr.
O' Toole and Mr. Porter, and, in any event, it was the Union' s
position that any discussions between them did not meet the
requirements of art . 26 . 3 .
5 . Ms . Mitchell did not disagree with the order of the June
13th meeting as it was described by Mr. Drmaj . Her position was
that whichever order is accepted the Employer chose to conduct a
meeting where there was a discussion of a matter which might
result in disciplinary action being taken against the Grievor,
which meeting "triggers" art . 26 . 3 .
6 . Where a meeting such as the one that was conducted on June
13th takes place, it was normal for the Employer to notify the
Union and to offer Union representation to the employee involved.
Submissions Made by Way of Argument on Behalf of the Union:
1 . Article 26 . 3 grants a "substantive" right to employees and
is not merely procedural .
2 . The language of art . 26 . 3 makes clear that the nature of the
protection afforded to an employee is mandatory in nature, and
that the Employer had a mandatory obligation to advise the
Grievor of his right to Union representation.
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3 . The Grievor was ordered by Mr. Holmes to attend a meeting
with respect to "discussing a matter which [might] result in
disciplinary action being taken against [him] . . . 11 even if Mr.
Holmes did not fully articulate the full purpose of the meeting.
4 . The Grievor was given a Notice of Intended Discipline and
charged with a criminal offence and arrested.
5 . The Employer could have separated the criminal matter from
the employment offense, but both of them were intermingled at the
meeting.
6 . It was clear that the Employer was, at some point proximate
to the meeting, going to discipline the Grievor in the light of
the intention to lay criminal charges, even if he was not
informed that this was going to happen. It was emphasized that
art . 26 . 3 did not use the words "shall result in disciplinary
action" but instead used the words "may result in disciplinary
action. " From the manner in which the meeting was conducted it
was clear that both criminal and disciplinary action might be
taken as a result of the meeting.
7 . Mr. Porter was also aware of the investigators, opinion that
criminal charges should be laid against the Grievor.
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8 ." It was "inconceivable" that the meeting of June 13th was
other than a meeting that might result in disciplinary action
being taken against the Grievor, with the Employer treating the
incident as representing a "very serious offense . " Accordingly,
the Employer had an obligation to make Mr. LaHay aware of the
purpose of the meeting and of his right to Union representation,
in advance of the meeting.
9 . There was no impediment to the Employer informing the
Grievor prior to the June 13th meeting that there was going to be
a meeting on that date to discuss an investigation with respect
to his conduct on May 4, 1994 and of his right to Union
representation at the meeting.
10 . The nature of the conversation between Mr. Holmes and the
Grievor, when the Grievor was asked to come to a meeting, did not
convey to the Grievor any information that might cause him to
request Union representation.
11 . There was no suggestion that the provision of Union
representation would "result in undue delay. "
12 . The language of art . 26 . 3 was said to be "broad" so that any
meeting relating to an investigation of a matter involving
improper cashiering activities fell within its purview.
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13 . Where a provision is substantive and the language mandatory,
failure to adhere to, its provision "voids the discipline . "
14 . Reference was made to the case of Hickeson-tangs Supply Co.
(1985) , 19 L.A. C. (3d) 379 (Burkett) , where the majority of the
board stated (at . p . 392) :
Although the meeting conducted between the company
and Mr. Laidlaw was part of an investigation, the fact
remains that it was a meeting with management within
the meaning of either art . 6 . 02 or art . 6 . 06, and that
Mr. Laidlaw was denied the representation to which he
was entitled; the purpose of which has been described
in Re Canadian Canners Ltd. And Int' l Assoc of
Machinists (1974) , 5 L.A.C . (2d) 323 (Brandt) [at p .
3251 , as :
. . . to ensure that the employee is fully advised
of his rights and also to facilitate some
discussion which might lead to an amicable
settlement of the dispute, short of any formal
action being taken.
In the face of the meeting having been conducted
without Mr. Laidlaw having union representation, as he
was entitled to, and consistent with the cases that
have held that discipline subsequently imposed in this
case is null and void if the employee' s contractual
right to due process is ignored, we hereby find that
the discipline that was subsequently imposed in this
case is null and void. The parties negotiate certain
safeguards with respect to the manner in which
discipline is to be imposed and/or the employer is to
confront the employee with respect to any other matter
under the collective agreement . These safeguards are
in the nature of a contractual due process . While it
may seem unfair to the employer to have its actions
found to have been null and void, the due process
provisions are central to the representation provided
under the collective agreement and, in our view, there
is no other way to give real meaning to them.
15 . Employees may be unable to properly act for themselves
because of the stress of the moment . Reliance was had on Oueen
18
Elizabeth Hospital (1988) , 2 L.A.C. (4th) 1 (Davis) . In that
case, at p. 6 , the arbitrator stated:
. . . such representative will be in a better mental
state at that moment to cope with the issue than the
grievor and will be able to provide the grievor with
timely advice .
16 . It was submitted that a Union representative might have
intervened on the behalf of the Grievor and made submissions
which raised mitigating factors .
17 . It was submitted that the provisions of art . 26 . 3 are to
protect the Grievor, and it is not my role to conjecture about
whether the presence or absence of a Union representative would
have affected the result .
18 . It was submitted that Mr. O' Toole' s knowledge or lack of
knowledge did not alter the obligation of the Employer under art .
26 .3 . Mr. Porter is alleged to have informed Mr. O' Toole about
an investigation and that some action would be taken. In this
case, the Grievor' s rights under art . 26 . 3 were not honoured and
these rights must be honoured in advance of the meeting when he
must be made aware of the purpose of the meeting and his right to
Union representation.
19 . Evidence of a vague conversation between Mr. O' Toole and Mr.
Porter does not meet the requirements of art . 26 . 3 . Mr. O' Toole
was the wrong person for the Employer to communicate with in
19
order to achieve compliance with art . 26 . 3 . In any event, there
was no indication of a clear "direction" to Mr. O' Toole by Mr.
Porter as to when the meeting would take place and who and what
would be involved, and there was no indication that Mr. O' Toole
passed on to the Grievor any information that might arguably
satisfy the Employer' s obligation under the latter article .
20 . At the very least, Mr. LaHay should have been told about the
fact that Mr. O'Toole had been spoken to and informed about the
nature of that conversation - which did not happen.
21 . Even if the Employer may delegate the responsibility to
inform an employee as is required under art . 26 . 3 , here, the
facts are vague, and it is not even certain whether the name of
the employee under investigation was made known to Mr. O'Toole.
22 . Although the Union did not raise the violation of art . 26 . 3
until Ms . Mitchell wrote Exhibit 7 to Mr. Drmaj on May 25 , 1995,
art . 26 . 3 is a substantive right and the Employer cannot rely on
its own wrongdoing as a defense to the breach of the article . In
any event, there must be a clear indication of waiver of the
employee' s right under art . 26 . 3 .
23 . There was nothing in the facts to demonstrate that the
Grievor was aware that he had the rights afforded him under art .
c
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26 . 3 , and he could not be expected to waive a right that he had
not been made aware of .
24 . Because of the way in which the matter proceeded, the
necessary "groundwork" had not been established by the Employer
to support a claim of waiver. In the circumstances, there was no
way for the Union to have amended the grievance to raise a
specific violation of art . 26 . 3 . The only meeting at which the
right could be raised was that of June 13 , 1994 . The way in
which the Employer approached the matter indicated that there was
nothing more to be done after the meeting of June 13 except to
notify the Grievor that he was being discharged, which was
accomplished through the mail .
25 . Reference was made to the language of the agreement in
Hickeson -Langs, at p. 380 :
6 . 02 Representation
An employee shall have the right of the
assistance of a Union Representative in any
matter under this Agreement concerning him
and which requires his meeting with
Management .
6 . 06 A Steward shall be present in any formal
meeting between an employee and the Company,
where the matter discussed is to become part
of the employee' s performance record.
7 . 02 For a grievance to proceed to arbitration (as
outlined below) the Union or the company, as
the case may be, shall specify the provision
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or provisions of this agreement that are
alleged to have been violated.
There is also the following signed letter of
understanding:
This will confirm the agreement between the
Company and the Union on November 9 , 1983
concerning the administration of Section 6 . 06 of
the Collective Agreement between Hickeson-tangs --
Toronto Branch and Teamsters Union Local 419 .
In the administration of Section 6 . 06 , where a
steward is not readily available, a senior
bargaining-unit employee of the employee' s choice
who is readily available will be present (in lieu
of a steward) in any formal meeting between an
employee and the Company.
26 . Reference was also made to the statement of the facts found
at pp . 380-1 :
The company, an institutional supplier of foods,
had been encountering a theft problem at the time the
grievor was discharged and had responded by increasing
the surveillance of its premises . The sequence of
events leading up to the discharge of the grievor is
not disputed. Mr. Laidlaw was seen coming out of the
warehouse at about 3 : 00 a.m. during the course of his
shift on Friday, March 8, 1984, and placing some goods
in his car. He was then brought back into the
warehouse for questioning by Messrs . Lloyd (loss
prevention) and Baird (district manager) . Mr. Laidlaw
denied any wrongdoing and eventually agreed to go to
his car in the presence of the two company officials .
Twenty-five salmon steaks and four tins of lobster meat
were found in Mr. Laidlaw' s car. He was again brought
back into the warehouse and police were called without
there being any further discussion between Mr. Laidlaw
and the company officials . While waiting for the
police to arrive Mr. Laidlaw asked for and was given
the telephone number of Mr. Sean Floyd, the union
business agent . He was allowed to call Mr. Floyd and
to speak with him from a separate office . Shortly
thereafter the police arrived and Mr. Laidlaw was
arrested. He was taken to the police station where, he
was asked if he wished to retain a lawyer, he asked and
was allowed to call Mr. Floyd. Mr. Floyd, therefore,
spoke with the grievor on two occasions during the
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night in question. Mr. Floyd arrived at the warehouse
after Mr. Laidlaw had been taken to the police station.
The union did not advise the company of its
intention to rely on art . 6 of the collective agreement
until the day before the hearing. Employees have had
the benefit of union representation at the
investigation stage in the past, but this is the first
theft case .
27 . Reference was also made to the statement of the board at p.
386 :
We now turn to the doctrine of waiver. The
doctrine of waiver has been applied by labour
arbitrators in circumstances where, in the face of a
procedural or technical defect in the filing or
processing of a grievance, the affected party continues
to process the grievance without objection. In these
circumstances it has been held that the affected party,
by its silence, has "waived" its right to rely on the
procedural or technical defect .
28 . And to statements at p. 387 :
Notwithstanding the judgment of the court [in Re Candle
and Stevenson et al . (1984) 5 D.L .R. (4th) 676 , 44 O.R.
(2nd) 656 (Ont . Div. Ct . ) ] arbitrators should be
extremely careful in applying the doctrine of waiver to
the exercise of substantive rights . This is so because
employees are not usually represented by counsel during
the grievance procedure and sometimes not at
arbitration, and because the statutory purpose of
labour arbitration is to resolve labour disputes
arising from alleged breaches of a collective
agreement . As distinct from a finding of waiver in
respect of a procedural irregularity, which then allows
the grievance to be heard on its merits, a finding of a
waiver of a substantive right limits the scope of the
hearing on the merits and/or deprives an employee of a
right to which he or she would otherwise be entitled to
rely upon.
29 . Further at pp . 388-90 :
We are of the view that Mr. Laidlaw was entitled to
union representation under art . 6 . 06 . Article 6 . 06
stipulates that "a steward shall be present in any
private meeting between an employee and the company,
23
where the matter discussed is to become part of the
employee' s performance record" . Where the matter to be
discussed at a meeting between an employee and
management officials is the company' s suspicion that
the employee has engaged in an act of theft, the matter
discussed, if the company suspicions are confirmed, is
to become a part of the employee' s performance record;
as it did in this case . We do not accept that so long
as the meeting is investigatory in nature it cannot be
a meeting within the meaning of art . 6 . 06 . The
employer in Re Williams et al . and Treasury Board (Post
Office Department) (1979) , 22 L.A.C. (2d) 94 (Abbott) ,
attempted to make the distinction between investigatory
interview and a disciplinary interview as is made in
this case . The relevant clause in the collective
agreement in that case was entitled "Right to
representation in case of disciplinary action" and
provided that "An employee summoned for disciplinary
reasons shall have the right to be accompanied by a
representative of the Union" . The arbitrator found in
that case that the interview of an employee by two
postal inspectors in connection with the investigation
of a fraud relating to overtime was a meeting at which
the employee was entitled to union representation. The
arbitrator in that case reasoned as follows [p . 991 :
I am quite satisfied, on the evidence before me,
that the postal inspectors intended their meeting
with Mr. Williams to be an opportunity to further
their investigation, by obtaining from him
admissions of culpability or exculpatory
information, and that they would take into account
whatever they obtained from Mr. Williams in
deciding whether disciplinary action should be
taken against him. This is exactly the sort of
interview of which an employee should have advance
notice and should have the opportunity to be
accompanied by a union representative . It is,
therefore, precisely the sort of situation
contemplated by the parties to the agreement in
cls . 10 . 04 and 10 . 06 .
We adopt this reasoning. A meeting at which an
employee is summoned to answer questions from company
officials with respect to whether or not he has
committed a theft where, if the company' s suspicions
are confirmed, the matter will become part of an
employee' s performance record is a formal meeting
within the meaning of art . 6 . 06 . It is required,
therefore, that a steward be present . There was no
steward present at the meeting between Mr . Laidlaw and
the two senior company officials in the early morning
s
24
hours of March 9, 1984 . The company is free to
investigate suspected improper or unlawful conduct to
whatever extent it desires . However, when it decides
to confront an employee, as happened in this case, the
employee is entitled to union representation under art .
6 . 06 of the collective agreement .
Alternatively, the grievor was entitled to
representation under art . 6 . 02 . Mr. Laidlaw was
required to meet with management when he was
apprehended in the parting-lot and, clearly, even if we
accept that the meeting was in connection with an
investigation and that a distinction can be made
between an investigatory interview and a disciplinary
interview for purposes of activating art . 6 . 06, it was
nevertheless a meeting dealing with a matter under the
collective agreement at which he was required to attend
and, therefore, a meeting within the meaning of art
6 . 02 . We are satisfied, therefore, that Mr. Laidlaw
was entitled to the representation provided under art .
6 . 02 when he met with management in the early hours of
March 9, 1984 .
30 . Reference was also made to Milnes Fuel Ltd. (1981) , 29
L.A.C. (2nd) 427 (Brown) , where the provision relied upon was :
The steward shall be present when an employee is
dismissed, suspended or disciplinary action taken.
In that case (at p . 428) the union took the position that the
disciplinary action taken by the employer was void ab initio
because there was no meeting concerning the grievor' s discharge
at which a steward was present .
31 . In Milnes, at p . 430-1, reliance was had on Re Budd
Automotive Canada Co . Ltd. (unreported) , February 1972 (Brown) :
The provision in the collective agreement in the
Budd case, supra, was as follows :
7 . 01 Any employee who is to receive a written
warning, suspension or discharge shall be
removed from his work station and taken to an
office . He may, if he so desires, request
and obtain the presence of his steward to
{
25
represent him during such an interview.
During such an interview the employee will be
advised of the offence committed.
The arbitrator in that case, in dealing with that
provision in the circumstance where the union alleges
that by non-compliance of the company with such a
provision, the penalty warning was invalid, stated:
The parties have developed a grievance
procedure to handle alleged violations of the
collective agreement and have agreed to certain
time-limits within which the procedure must be
followed. In that regard art . 6 . 10 provides in
essence that if the grievance is not carried on to
the next step within the time-limits, or within
the limits otherwise agreed by the parties, the
grievance is automatically settled on the basis of
the last decision given on the grievance form.
This provides for a penalty in the event of non-
compliance with this procedure and in light of the
most recent arbitration decisions in similar
situations, it would follow that these are
mandatory provisions which must be strictly
applied. These form part of the rules of
procedure for grievances . There is no such
penalty provisions in the collective agreement
covering the failure to comply with arts . 7 . 01 and
7 . 02 , but is that not simply a recognition that
these provisions do not form part of the rules of
procedures, but have been recognized by the
parties as matters of right . The company has the
substantive right under. the collective agreement
to impose discipline against its employees . In
the implementation of that right, it is provided
that the company must comply with certain rules in
the interest of the employees concerned which are
set out in arts . 7 . 01 and 7 . 02 . I find these
provisions to be completely independent of what
may follow in the grievance procedure resulting
from the company' s initial action and are the
basic rights of an employee . He has been given by
the parties the right to receive the charge
against him in the privacy of an office; the right
to know the penalty within the time stipulated in
art . 7 . 02 and the right of representation. These
are substantive rights which must be accorded to
the employee if the right of the company to
initiate discipline is to be given weight . The
failure, then, to allow these rights to the
employee is not a failure to follow procedure . . .
In my view the parties have balanced the basic
26
rights of the company and the employee for the
purpose of discipline by which the exercise of the
company' s rights to discipline must be met with
the employee' s right . It is not a matter going
solely to the assessment of the penalty but goes
to the very action of discipline itself .
Article 7 . 01 provides that the charge shall
be made known to the employee and by art . 7 . 02 the
company assesses the penalty and is obligated to
advise the employee within the time provided. The
damage from the breach of such provision would be
the negation of the employee' s basic contractual
rights to the protection provided by the parties
in disciplinary matters .
The arbitrator went on to find that art . 7 . 01 was not
procedural but, provided a substantive right to the
employee which could not be denied by the company, and
must be strictly applied. In the event of the failure
by the company to grant such rights, the imposition of
discipline was void ab initio.
32 . Further in Milnes, at p. 434 , the majority of the board
stated:
The clear intent of this article in our view is, that
when an employee is as in this case, being dismissed
and that decision has been taken, he is entitled to be
told or advised in the presence of his steward which
might be for the purpose of representation at that time
or for protecting any other rights he may have with
regard to the grievance procedure, but the nature of
that protection afforded to the employee by the parties
is representational in effect . To omit that right, in
our opinion, is an omission of a substantive right and
not merely a procedural step under the grievance
procedure, default of which might be the subject of
relief through the provisions of the Labour Relations
Act, R. S .O . 1970, c . 232 . The agreement does not
provide that in the absence of this step being
fulfilled the disciplinary action is a nullity, but the
effect of failure to comply with a substantive right of
a mandatory nature contained in the collective
agreement conflicts with the basic rights of the
employees in relation to the right of the company
subject to the term of the collective agreement, to
impose discipline .
27
33 . To the same effect are Re Toronto Western Hosipi.tal (1985) ,
19 L.A. C. (3rd) 191 (M.G. Picher) at p . 191 and p. 201 ; Re St .
Joseph' s Hospital (Brantford) (1987) , 28 L.A. C. (3rd) 408 (P . C.
Picher) at pp . 411 and 419 ; Re Weetabix of Canada (Mfg. ) Ltd.
(1987) , 31 L.A. C. (3rd) 444 (Draper) at p . 447 (where the board
also stated: "Waiver connotes knowledge of a right and the
intention to surrender or abandon it . " ) ; Re Oueen Elizabeth
Hospital (1988) , 2 L.A.C. (4th) l, ' at pp. 2 and pp . 4-8 ; Re
Glengarry Memorial Hospital (1990) , 11 L.A.C. (4th) 325 at p . 329
and p . 331 ; Re Valdi Foods (1987) Inc . (1990) , 16 L.A.C. (4th)
318 (Brandt) at p. 323 ; and Re Brewster Transport Co . Ltd.
(1992) , 26 L.A. C. (4th) 240 (Tettensor) .
34 . It was submitted that the fact that the Employer paid the
Grievor from the time he was no longer at work on June 13th to
the time of his discharge on June 23rd represented no "real
distinction. " It was submitted that the discipline commenced on
June 13th, and reference was made to the words "that as a result
of these events disciplinary action may be taken against you, " in
Exhibit 4 . If the payment to an employee in the circumstances of
the Grievor during a period of suspension could change the
result, then this would "take the guts out of art . 26 . 3 . " The
"disclaimer" that discipline might follow cannot assist the
Employer.
28
Mr. Drmaj made the following submissions by way of argument
on behalf of the Employer:
1 . That the issue before me is whether art . 26 . 3 is procedural
or substantive .
2 . If substantive, it covered such a narrow range of situations
that it is not applicable to the facts before me and is merely
directory.
3 . If I found that art . 26 . 3 was substantive and mandatory,
then it concerned only the notice of intended discipline. The
meeting of June 13 did not represent a "disciplinary encounter"
so as to void the discharge if the meeting was not carried out in
accordance with the requirements of art . 26 .3 .
4 . If I found that the meeting of June 13 , 1994 was
disciplinary in nature and within the purview of art . 26 . 3 , then
Exhibit 4 related only to the June 13th suspension that was
grieved in Exhibit 2 and not to Exhibit 3 , the discharge
grievance .
5 . The discharge of the Grievor that followed the filing of
Exhibit 2 led to an additional grievance being filed on June 28th
(Exhibit 3) , which represented an entirely different matter from
f
29
the Grievor' s suspension meted out in exhibit 4 , and was
unrelated to the meeting of June 13th.
6 . There was no requirement for a meeting to be convened in
order to deal with the actual discharge or discipline of the
Grievor. Accordingly, the Letter of Discharge (Exhibit 6) was
valid. If I rejected all of the other arguments made on behalf of
the Employer, only the suspension might be declared invalid.
7 . The Union, by its conduct in not raising the matter relating
to art . 26 . 3 until May 25, 1995 , waived any breach of that
article by the Employer.
8 . If I rejected the argument of the Employer based on waiver,
then any remedy afforded the Grievor should consider when the
objection was raised (on May 25., 1995) and restrict relief to the
period from that date.
9 . A substantive right in the Grievor is only created by clear
and unequivocal language . Reference was made to such substantive
rights as the right to Union representation during the grievance
procedure and in connection with seniority rights, where the
language of the collective agreement was said to be clear and
unequivocal .
10 . Reference was made to art . 27 . 3 (a) (ii) :
30
Unless otherwise agreed between the employee and
his/her supervisor, a meeting in respect of an
employee' s complaint shall only be attended by the
Ar employee and his/her supervisor.
11 . This provision is found in art . 27, which is headed
"Grievance Procedure . " Art . 27 . 3 is headed "Stage 1 (Complaint
Stage) " and art . 27 . 3 (a) (i) provides, inter alia:
An employee who has a complaint or a difference shall
discuss the complaint or difference with his/her
supervisor, as designated by the Employers
12 . It was submitted that art . 27 . 3 (a) (ii) specifically deals
with the subject of who is to be present at the meeting referred
to. This was said to be unlike the provisions of art . 26 . 3 ,
where there is no specific reference to who must be present at
the meeting.
13 . It was submitted that art . 26 . 3 should not be "isolated"
from the rest of the grievance procedure, where references to who
should be present at meetings are "clear and unequivocal . "
14 . It was submitted that the facts of the case before me should
be distinguished from cases where the meeting involved a
disciplinary response . The case before me was said to involve a
situation where there might be a disciplinary response, but not
necessarily so.
15 . It was submitted that it was not possible to create a
"partial substantive right . "
l
31
16 . It was submitted that an interpretation such as the one
sought by the Union would discourage meetings : that is, if it was
always necessary for an employee to have Union representation.
17 . Art . 26 . 3 is directory and procedural and has as its purpose
assuring, where certain matters arise that might require the
imposition of discipline, that the affected employee is made
aware of the purpose of the meeting and of his/her right to Union
representation in advance of the meeting. However, failure to
adhere to the requirement would not necessarily void any
subsequent discipline that is meted out .
18 . An examination of the facts demonstrates that the meeting
was not called for the purpose of "discussing a matter which
[might] result in disciplinary action, " and hence was not one
envisaged by art . 26 . 3 , but was for the purpose of effecting the
Grievor' s arrest in the Store Manager' s office rather than in the
"open store, " so as to insure privacy, and also to take him into
custody, there being no obligation to hold such a meeting as is
referred to in art . 26 . 3 .
19 . Handing Exhibit 4 to the Grievor at the meeting was only
peripheral to the purpose of the meeting, which was to effect his
arrest and to enable him to be taken into police custody.
l
32
20 . Where a meeting is held for a purpose other than "discussing
a matter which may result in disciplinary action being taken" or
for combined purposes, where the issuance of a Notice of Intended
Discipline is peripheral to the main purpose, art . 26 . 3 can only
be viewed as being procedural .
21 . The word "shall" as found in art . 26 . 3 does not always
create a mandatory obligation.
22 . Art . 26 . 3 can be interpreted as furnishing an option in
favour of the Grievor, but the question of undue delay, being
undefined, leaves the matter of calling in Union representation
in the hands of management .
23 . If I conclude that the provisions of art . 26 . 3 confer a
substantive right on the Grievor, then it is necessary to examine
the facts to see if they fit within the provisions of that
article . It was submitted that on the facts before me I should
not find that there was a meeting for the purpose of discussing a
matter which might result in disciplinary action being taken.
This was said to be reinforced by the statement in Exhibit 4 :
"This is not a disciplinary response . . . "
24 . If I find that the meeting of June 13 was one called for the
purpose of discussing a matter which might result in disciplinary
action being taken, then the action then taken by the Employer
c
33
was grieved by Exhibit 2 on June 20th, and that grievance relates
to the suspension effected by Exhibit 4 . A "technical" failure
to comply with the requirements of art . 26 . 3 in connection with
the meeting of June 13 , 1994 cannot affect the validity of the
subsequent discharge of the Grievor in Exhibit 6 . The
"technical" failure only affected the suspension, which was a
separate issue that was grieved as such.
25 . If I find that the suspension meted out in Exhibit 4 was the
kind of "disciplinary action" envisaged by art . 26 . 3 and was void
ab initio, then the Grievor received "all wages, benefits and
seniority lost . " The discharge meted out by Exhibit 6 was an
entirely separate matter unrelated to the meeting of June 13th.
26 . If I find that the discharge of the Grievor, meted out in
Exhibit 6, is a matter that flows directly from the meeting of
June 13th, then any breach of art . 26 . 3 had been waived and can
no longer be pursued.
27 . If I find that art . 26 . 3 is applicable to the facts of this
case, then Mr. O' Toole and/or the Grievor knew or ought to have
known as early as the Notice of Intended Discipline that the
meeting of June 13 would involve a discussion of matters which
might result in the Grievor' s being disciplined. It was
submitted that either or both of them were aware of the
investigation and of the videotaped evidence . It was submitted
t
34
that the Grievor had a duty to raise the provisions of art . 26 . 3
when he was told about the events that were being investigated
and it was evident that discipline might follow. The Grievor
should have raised the provisions of art . 26 . 3 when Exhibit 2 was
filed and later when Exhibit 3 was filed, and at the latest by
August 8 , 1994 when the Union waived the right to go through the
further stages of the grievance procedure and agreed to proceed
directly to the Grievance Settlement Board (Exhibit 8) .
28 . Reference was made to Alcan Wire and Cable, an unreported
case decided by the majority of a board chaired by S .A. Tacon on
July 20, 1989 .
29 . The provision of the collective agreement in the Alcan case
considered by the board was :
25 . 07 Where a counselling or disciplinary meeting
is to take place between a supervisor and a bargaining
unit employee and such meeting shall result in a
written disciplinary notation, then such meeting shall,
where practicable, and if the employee so requests,
take place in the presence of a Union steward.
30 . The union in Alcan argued that the employer failed to comply
with the procedural steps required in order to properly terminate
the grievor, and hence the grievor should be reinstated "in
consequence of this procedural defect . "
31 . Reference was made to the statement of the majority of the
board, at p . 11 of Alcan:
t
35
In the instant case the board views the question
of a procedural defect as one which may properly be
raised at the hearing for the first time only on the
basis that, if that argument is ultimately successful,
the relief granted should not predate the point at
which the question was first raised. To hold
otherwise, would result in substantial prejudice to the
company. Prior to the hearing, the company was unaware
that question was in issue . Yet, it is the company
which might well be financially liable by way of a
compensation order for that entire period. To so limit
the remedy, however, would adequately address the issue
of prejudice . (Emphasis in original)
32 . Reliance was also had on the statement of the majority of
the board at pp . 12-13 of Alcan:
The board must next consider the language of
Article 25 . 07 to determine whether that article
confers, as the union contends, a substantive right to
the presence of a steward in the circumstances of this
case so that the absence of the steward renders the
subsequent termination void.
The relevant portion of Article 25 . 07 is worth
repeating here : " . . . then such meeting shall, where
practicable, and if the employee so requests, take
place in the presence of a union steward. " The board
notes that the practicability of a union steward' s
attending was not in issue .
The phrase "and if the employee so requests" must
be given meaning and that meaning is clear - an
employee request is a precondition to the
representational right . Quite simply, the right is not
absolute nor can it be said that the language confers
an obligation on the company to bring the "option" to
the employee' s attention prior to, or at the
commencement of, the meeting: see Weston Bakeries
Limited (Chatham, Ont . )_ (unreported, September 26,
1988) (MacDowell) and the cases cited therein. While
it is conceivable that there may arise circumstances
wherein those words should not be given effect if, for
example, the company were to be estopped from relying
on that precondition, that is not the case herein. The
grievor had his thirty day appraisal in February and
knew the nature of the meeting scheduled for March 30 .
At the February meeting, his performance was reviewed
and his deficiencies discussed. Most tellingly, the
grievor knew that "if he didn' t pull up his socks, he
i
36
would not last . " It cannot be said that the grievor
could not have anticipated a possible outcome of the
March meeting would be his termination. There is no
dispute that the grievor did not request the presence
of a union steward at the meeting. The board has no
authority to amend the collective agreement to modify
language from a precondition which has not been
satisfied to an absolute right to representation or an
affirmative obligation on the company to inform the
grievor of the wording of Article 25 . 07 or his option
to request a union representation at the meeting.
Thus, the board rejects the union' s position on the
first preliminary motion.
33 . Reliance was also had on Pharma Plus Drug Marts Limited, an
unreported case decided by N.B. Satterfield on December 20, 1993 .
In the Pharma Plus case, the grievor was terminated for breach of
a company rule :
Every sale must be registered and a receipt given to
the customer. Failure to register sales will result in
termination.
34 . One of the issues raised in the case involved art . 31 . 01 (a) :
Where an employee is to be interviewed by the Company
or Security regarding discipline or dismissal, the
employee may request the Union Steward or another
bargaining unit employee to be present to observe the
discussion and such request shall be granted.
35 . The alleged breach of art . 31 was said by the union in
Pharma Plus to void the discipline imposed ab initio.
36 . At p . 8 of Pharma Plus, the arbitrator stated:
With respect to clause 31 . 01 (a) , whether the
clause falls within that group of clauses which
arbitrators have said creates substantive rights, or
whether it falls within the group which are procedural
only and therefore directory, I find that there has
been no breach of clause 31 . 01 (a) of the collective
agreement . The grievor is a steward and was aware of
c
37
his collective agreement right to the kind of
representation described in clause 31 . 01 (a) . The
meaning of the phrase " . . . the employee may request
. . . " is clear in the context of the clause . If an
employee wants the benefit of the representation
described, it is a precondition to that right that the
employee asks to be represented by a Union steward or
another bargaining unit employee . The right to that
representation is not absolute because of that
precondition.
37 . Reference was also made to The Steel Company of Canada
(Rayner) , an unreported decision dated August 29 , 1990 , where the
grievor had been discharged by a registered letter dated August
10 , 1987, and where, at the outset of the hearing, union counsel
indicated that there was a preliminary objection claiming that
the discharge was null and void because the employer had failed
to follow art . 9 : 11 of the collective agreement .
38 . Art . 9 : 11 of the Steel Company agreement is as follows :
9 : 11 - No employee other than a probationary employee
shall be discharged without first being given seven (7)
days notice except in cases of serious misconduct, when
discharge shall be effective immediately. An employee
who is. being notified of his/her discharge may elect to
have a departmental Chief Steward or Steward present .
In the event that a departmental Chief Steward or
Steward is not present at the time the employee is
notified of his/here [sic] discharge, the Company will
notify the Chief Steward of all immediate discharges or
notice of discharge given to employee in his/her
department, excepting probationary employees, with
[sic] forty-eight (48) hours after such discharge or
notice of discharge has been effected. Grievances
relating to notice of discharge or discharge may be
initiated at Step No. 2 of the Grievance Procedure and
may be appealed directly to Step No. 3 .
39 . At pp . 4-5 , the board stated:
l
38
The first part requires 7 days notice of discharge
(probationary employees apart) except in cases of
serious misconduct . The part has no bearing on the
objection before us and can, at this point, be
disregarded although for completeness it should be
noted that in an earlier award, Re Stelco 18 L.A. C .
(3d) 353 (Kennedy) this language was held to be
directory and procedural and lack of notice did not
render the discharge a nullity.
The second part, and the part relied on by the
Union, permits an employee who is being notified of his
discharge to have a Union Steward present .
The third part requires the Company to notify,
within 48 hours, the Chief Steward of all immediate
discharges or notice of discharge (save probationary
employees) "in the event that a departmental Chief
Steward of Steward is not present at the time the
employee is notified of his/her discharge" (emphasis
added in Stelco) .
The latter two parts of Article 9 : 11 were
canvassed in an earlier award between the parties
(McLaren, January 1984) but that case does little to
assist the Board. However, it does note that there is
no obligation on the Company to put an employee to an
election to have a Union representative present .
The gist of the Union objection is that the
Company had to have a meeting with the grievor and that
the grievor had to have an opportunity to elect to have
Union representation present . Mr. Smith said that the
right to an election would be meaningless if there was
not an implied right to a discharge meeting. He also
suggested that the grievor' s refusal to attend the
Company' s premises in possible violation of his bail
order was reasonable . We agree with the latter
submission but not the former.
40 . At pp . 5-6 of the Steel Compaq case the board concluded:
Implicit, indeed a cornerstone, in the Union' s
argument is that there must be a meeting before
discharge can be effective although Mr. Smith conceded
that there may be very unusual circumstances where a
meeting cannot be held. However, in the normal case a
meeting must be held and the employee given his
election. He relied on the leading case of Re Milnes
Fuel Oil 29 L.A.C . (2d) 428 (Brown) where the agreement
required that an employee to be discharged "shall be
39
removed from his work station and taken to an office"
where he could elect to have Union representation.
This case was followed in Re Clarke Institute 20 L .A.C.
(3d) 193 (Knopf) , Re Corp . of the City of Toronto 24
L.A.C . (3d) 115 (Joliffe) , Re St . Joselh Hospital 28
L.A.C. (3d) 408 ; and Re Automotive Industries
(unreported, Rahim, 1988) .
Although the Milnes Fuel case appears correctly
decided on the language of that collective agreement,
the other decisions may be doubtful to the extent that
the decisions do, or do not, determine a threshold
issue . That issue is whether the agreement requires a
disciplinary meeting to be held. In the Clarke
Institute case and the City of Toronto decision the
answer would appear that a meeting was required and
where a meeting is required, if the collective
agreement permits or requires Union representation,
failure to allow such representation may render the
discharge a nullity. However, we must first decide
whether a meeting is required under the terms of this
Collective Agreement . If there is no need for a
meeting, the election of Union representation is not in
issue and the discharge cannot be challenged solely on
the basis of Article 9 : 11 .
In Re Cambridge Towel 66 O.R. (2d) 793 the
Divisional Court sounded a cautionary note in
overextending the reasoning such as was found in Milnes
Fuels and declaring discharges a nullity because of
failure to comply with all notification or notice
provisions of the Collective Agreement . It is trite to
say that a Board should not stand on procedural
technicalities and fail to hear the merits of the
dispute unless the Collective Agreement makes it clear
that any procedure set out therein must be followed as
a condition precedent to the action in dispute no
matter which side raises the technicality. However, in
this case, we do not believe that there has been even a
technical violation of Article 9 : 11 .
41 . In the Steel Company case, although the grievor had been
requested to attend at the plant for an interview before he was
discharged, no such interview meeting took place for reasons
which are not material here .
1
40
42 . After stating that the union could only succeed if the board
found that art . 9 : 11 required a discharge meeting, the board
stated, at p . 7 :
. . . If no such meeting is required, there has been no
violation in the instant case . As previously stated
nowhere in Article 9 : 11 is there an express statement
that a meeting be held. This lack of expression is
contrasted with the language used for notice of
discharge to the employee, i .e . , "No employee shall be
discharged without 7 days notice" and for notification
to the Chief Steward "the Company will notify the chief
steward. . .within 48 hours" . Indeed, the very wording
of the Article contemplates that there may be
discharges where there is no steward present . This
lack of stewardship could result from either the
employee electing not to have Union representation or
because there has been no discharge meeting. Both
possibilities exist under the present language.
However, there is no language that mandates a meeting.
(Emphasis in original)
43 . The final submission made on behalf of the Employer was that
even if it failed in all of the above submissions, and the
discharge is declared to be void ab initio, there is nothing to
prevent the Employer from properly repeating the exercise and
reissuing "appropriate discipline . " It was submitted that
requiring such a procedure did not "make a lot of sense in this
kind of case . " See, Board of Governors of the Riverdale Hospital
(1983) , 11 L.A. C. 267 (Brandt)
44 . At pp. 277-8 of the Riverdale Hospital case, the board
stated:
In reaching my conclusion I am mindful of the fact that
this award does little more than compensate the grievor
and reinstate him as a probationary employee without
any right to grieve in the event that the hospital
i
41
should, upon this award, set out to accomplish the
termination of the grievor in accordance with the
requirements of art . 13 . 02 (a) .
45 . Reference was also made to VS Services Ltd. , Vending
Services (1990) , 17 L.A.C. (4th) 339 (Brandt) . That case dealt
with the question, apparently one that had not been dealt with in
the arbitral jurisprudence, whether or not, once it has been
determined by a board of arbitration that a purported discharge
was null and void for failure to comply with a provision in the
collective agreement requiring union representation on the
imposition of discipline, an employer can, in the absence of any
new and different ground for discharge, discharge the employee
again in full compliance with the provisions requiring union
representation.
46 . After finding that his earlier Riverdale Hospital case (at
P . 334) indicated "by implication at least, that there may be
circumstances in which it is quite proper for an employer to
correct its earlier errors and act again on the basis of the same
events as had earlier motivated it to act, " the board concluded
that this was a case where the employer should be permitted to
properly carry out the requirements of the collective agreement
and terminate the employee .
Argument in re-Ply made on behalf of the Union:
42
1 . The meeting of June 13 , 1994 was not just for the purpose of
facilitating the arrest of the Grievor. If that were the
intention, Sergeant Crockford could have been furnished with an
office or with the home address of the Grievor, and it was
unnecessary for anyone associated with the Employer to be in
attendance . The Employer did not choose to do that, but instead
brought the Grievor into the Manager' s office at his home store
and related (through the Manager) the details of an offence that
clearly could be the subject of discipline, in the presence of
two investigators for the Employer as well as Sergeant Crockford
of the Orillia Police detachment .
2 . When the parties negotiated art . 26 . 3 , they envisaged a
situation where, if the Employer chose to have such a meeting as
is there described, the employee involved had certain rights : to
be informed in advance of the meeting of its purpose and of his
right to Union representation.
3 . It was submitted that there was a discussion in which Mr.
Holmes informed the Grievor that he had been observed involved in
improper cashiering procedures on May 4, 1994 and asked him for
an explanation to justify his observed behaviour. Because of the
way the Employer to chose to conduct the meeting, it represented
one where disciplinary action might be taken against the Grievor,
whether or not it had another purpose .
i
43
4 . Although Exhibit 4 states that it is not disciplinary in
nature, this does not matter because art . 26 . 3 refers to "a
matter which may result in disciplinary action. " The matter, in
this case, might, and, in fact did, result in disciplinary action
being taken against the Grievor.
5 . Reference was made to Weetabix of Canada (Mfg. ) Ltd.
(1987) , 30 L.A.C. (3rd) 444 (Draper) , where the language of the
agreement was said to be similar to that of art . 26 . 3 :
9 . 09 An employee when called to a meeting with
Management, where disciplinary action may result, shall
have the right to have a Steward or Union official in
attendance; however said employee shall also have the
right to waive the necessity of the attendance of such
Steward or Union official .
6 . The arbitrator in the Weetabix case found, at p. 448 , that
art . 9 . 09 was mandatory and conferred a substantive right and
that the company' s failure to comply with the article rendered
the discharge of the Grievor void ab initio.
7 . In response to the Employer' s argument that if there was a
meeting within the meaning of art . 26 . 3 it was not disciplinary
in nature and only related to a suspension pending further
investigation, it was submitted that the discharge of the Grievor
that followed was the natural result of what had taken place at
the meeting and was tainted by the violation of the Grievor' s
rights under art . 26 . 3 . The fact that there were no further
meetings demonstrated that the Employer did not need to have a
44
further meeting to obtain information. That information was
already within its knowledge on June 13 , 1994 .
8 . Because the provisions of art . 26 . 3 are substantive in
nature, an allegation that the Grievor' s rights under that
article had been violated can be raised to the date of the
hearing.
Discussion and Decision
1 . The Union, having raised the issue as to whether art . 26 . 3
had been violated, has the burden of proving that that was the
case .
2 . Because there was no written agreed statement of facts, it
was necessary for me to review my notes to see whether there was
a difference between the versions of the facts as presented by
the parties .
3 . It is not unusual for parties to argue motions such as the
one before me without eliciting viva voce evidence, but to argue
on the basis of agreed facts, either in writing or as presented
to the board orally. In this case the later was done . After Ms .
Mitchell had reviewed the facts from the Union' s perspective, Mr.
Drmaj , while stating that he agreed with most of those facts,
45
indicated that he took issue with some of them and presented
facts that he believed had not been fully dealt with by Ms .
Mitchell, which additional facts she did not dispute .
4 . In his opening statement, Mr. Drmaj stated that there was an
investigation concerning certain shortages from cash in Store 175
in Orillia where the Grievor worked. Mr. Porter, the District
Manager, was said to have had discussions with LCBO security
representatives, and a decision was made to engage in certain
investigation procedures : surveillance of the Grievor, including
surveillance through the use of video cameras . It was as a
result of the implementation of these investigation procedures
that the Grievor was said to be implicated - on May 4, 1994 - in
a breach of the Employer' s cashiering procedures, which breach
Mr. Drmaj identified as being both a "disciplinable event and
also [as representing] criminal activity. "
5 . Mr. Drmaj stated that the criminal activity represented the
"possibility of theft" having occurred. Mr. Porter was said to
have been informed about the result of the video surveillance and
that the LOBO security personnel wished to proceed to receive
advice from the police as to whether criminal charges "could or
should be laid" because of what the Grievor was said to have
done .
46
6 . According to Mr. Drmaj ' s version of the evidence, the
question of discipline was said to have been placed in abeyance
when, on June 10th, Mr. Porter was given the information
relating to the investigation, above referred to.
7 . Mr. Drmaj ' s version of what took place was that on June 101Ch
Mr. Porter had told Mr. Holmes, the Store Manager, that he was to
attend on Monday June 13 , 1994 with the LCBO investigators at the
Orillia police station to "view the videotapes of the Grievor and
be present while a determination was made as to whether criminal
charges should be laid and "how this was to be done . " Mr. Holmes
was also said to have been told by Mr. Porter that there would be
a letter for the Grievor in Mr. Porter' s office in Barrie
(Exhibit 4) , which Mr. Holmes was to pick-up and deliver to the
Grievor on June 13th.
8 . Mr. Holmes is supposed to have attended on Sgt . Crockford at
the police station in Orillia on the morning of June 13 , along
with the two LCBO investigators, at which time Sgt . Crockford
reviewed the videotape and the details of the investigation.
Sergeant Crockford then informed Mr. Holmes and the investigators
that there was sufficient evidence to lay charges against the
Grievor. It was then decided to return to the store in order to
confront and arrest the Grievor.
E
47
9 . Mr. Drmaj stated that there was a dispute between himself
and Ms . Mitchell as to exactly what had taken place at the
"meeting" on June 13 , 1994 .
10 . Mr. Drmaj stated that he did not agree with Ms . Mitchell' s
description of what had taken place at the meeting: that a
discussion with respect to matters relevant to the "Notice of
Intended Discipline" occurred first, with the "flow" of the
meeting then proceeding to' the charging of the Grievor with the
offence of theft under $1000 . 00 and his arrest . He raised, but
did not pursue, the question as to whether the Grievor' s arrest
took place first .
11 . Mr. Drmaj stated position was that immediately before
anything else happened at the June 13 meeting the Grievor was
told who the other persons at the meeting were; the purpose of
their presence; was then given the letter of June 10 , 1994
(Exhibit 4) ; and was then escorted to the police station by
Sgt .Crockford, charged and placed under arrest .
12 . I note that Mr. Drmaj , when he said that the Grievor was
informed of the "purpose" of the meeting, did not elaborate on
what the Grievor was exactly told about the "purpose . "
13 . Ms . Mitchell stated that after the persons in the manager' s
office were seated on June 13 , 1994, Mr. Holmes gave the Grievor
48
Exhibit 4 . The Grievor was then said to have been asked by Mr.
Holmes : "What were you doing on May 4th? " and Mr. Drmaj did not
deny that this statement was made . Nor did he deny the statement
attributed to the Grievor in response to the question: That he
did not know what he was doing on that day and could not recall
if he was at work at that time . Mr. Holmes was then said to have
advised the Grievor that he was observed engaged in improper
cashiering procedures, in that he was observed taking cash from
the drawer and was asked if he had any explanation for his
actions . The Grievor is then said to have responded that he did
not know what he was doing, and that he might have been making
change for himself .
14 . Sergeant Crockford is then supposed to have asked the
Grievor if that was his statement, and the Grievor is supposed to
have replied that he was not making a statement, and it was at
this time that Sergeant Crockford took over the meeting and
arrested the Grievor. For the purposes of this case I find that
there is no particular significance in the Grievor' s response
that he was not making a statement .
15 . I note that Mr. Drmaj did not say that he was disagreeing
with the recitation of the facts as given by Ms . Mitchell but
stated that he wished to add some additional facts and reorder
some of the events to show that they had taken place in a
different order.
49
16 . I am satisfied that the meeting had a dual purpose : to
arrest the Grievor and "for the purpose of discussing a matter
which [might] result in disciplinary action being taken against"
him. It was unnecessary to hold a meeting in the Store Manager' s
office just to arrest the Grievor or to have present the Manager
and the two LCBO investigators . Questions related to a purely
criminal investigation could have been asked by Sergeant
Crockford without anyone else being present . The Grievor could
have been arrested at his home or taken to the police station and
there placed under arrest without the further involvement of Mr.
Holmes or the two LCBO investigators . The questions that Mr.
Holmes put to the Grievor were more consistent with his interest
in securing information related to the Grievor' s breach of the
Employer' s cashiering procedures and to facilitate the process
leading to the imposistion of discipline . Whatever other purpose
the meeting may have had, as conducted by Mr. Holmes it also
became a meeting to discuss "a matter which may result in
disciplinary action being taken" against the Grievor. If the
meeting only was concerned with confronting the Grievor with
respect to his commission of a criminal offence, it would be
expected that only Sgt . Crockford would be in attendance and in
complete control of the meeting. The evidence was otherwise, and
I am satisfied that the meeting had two purposes : one related to
an employment offence that could lead to discipline, the other
being related to the commission of a criminal offence .
50
17 . Although there is nothing in the collective agreement that
requires the Employer to hold a meeting "for the purpose of
discussing a matter which [might] result in disciplinary action"
against an employee, once such a meeting is held it must be held
in compliance with the provisions of art . 26 . 3 . See The Steel
Company of Canada case, above, at pp . 7-8 :
This conclusion does not render the second part of the
Article nugatory. If a meeting is convened, and if the
employee is denied Union representation after electing to
have representation, the rationale of Re Milnes Fuel could
operate .
Surely, the purpose of this part of the Article is two-fold:
first, it informs the Union of the discharge but that object
is again achieved by the third part of the Article . Second,
it ensures that the employee, on the spur of the moment,
does not make a statement that may inculpates him or her.
However, if there is no meeting, there is no need to protect
against inculpatory against inculpatory statements .
In conclusion then we believe that Article 9 : 11, or at least
that part relied on by the Union has no application if no
discharge meeting is held and that Article 9 : 11 does not
require such a meeting as a condition precedent to
discharge . If a meeting is held and the employee denied
representation, Re Milnes Fuel may then apply.
18 . Although it is necessary to pay close attention to the
wording of the particular provisions of the article said to have
been violated so as to lead to the conclusion that the discipline
imposed is void ab initio, I am satisfied that art . 26 . 3
represents a substantive and not procedural requirement in
accordance with the line of cases following Milnes Fuel Oil Ltd.
(above) .
{
51
19 . In the Alcan case, because the clear language of the
agreement created no such obligation, the arbitrator found, at p .
12 , that the article in question did not to confer "an obligation
on the company to bring the ' option' to the employee' s attention
prior to or at the commencement of the meeting. . . . "
20 . In the Pharma Plus case, the board, at p . 8 , held that it
did not matter whether the article in question created
substantive rights or fell within "the group which are procedural
only and therefore directory, " because it was "a precondition to
that the right that the employee asks to be represented by a
union steward or other bargaining unit employee . "
21 . In the Steel Company of Canada case, there was, as in this
case, no requirement that the Employer hold a meeting: in that
case to deal with the discharge of the employee . At p. 7 , the
board stated:
if no such meeting is required, there has been no
violation in the instant case .
But, as was noted above, the situation is different when a
meeting is held and the subject matter of the meeting falls
within the provisions of the article . In the Steel Company case,
no meeting was held, and there was " no need to protect against
inculpatory statements . " (At pp . 7-8)
22 . Art . 26 . 3 creates a substantive right which can only be
waived by the employee involved. That right is to make the
52
affected employee aware of the purpose of the meeting and
his/her right to Union representation in advance of the meeting. "
The Grievor never waived his rights . Even if Mr. O' Toole was
able to do so, I cannot find this to have been the case . In any
event, I cannot find that Mr. O'Toole had sufficient information
about which employee was involved or of the exact nature of the
matter being investigated to be able to make an informed
decision.
In the Riverdale Hospital case, above referred to, the board
referred to the following article (13 . 02 (a) ) found in the
collective agreement :
An employee may be discharged or suspended only for
just cause . when an employee is discharged or
suspended he shall be given the reason in the presence
of a representative of the Union. Such employee and
the Union shall be advised promptly in writing of the
reason for such discharge or suspension.
23 . The board stated at p. 275-6 :
Since the right provided for in art . 13 . 02 (a) is a
right which is personal to the employee it could be
waived by the employee .
24 . At p. 276, the board stated that it was insufficient that
the union representative had been advised that disciplinary
action was going to be taken and then to ask her to remain in the
area in the event that the grievor wished assistance . "The
fairer procedure would have been to ask the grievor, in the
presence of the steward, whether or not he wanted union
representation. "
53
25 . In this case, the Grievor was not made aware of the purpose
of the meeting at the outset, nor was he informed of his right to
Union representation.
26 . The right to Union representation is not a mere formality.
In drafting art . 26 . 3 , the parties had in mind the possibility
that through Union intervention the meeting might result in the
Employer taking actions different from those that might be taken
in circumstances where the' employee had no Union representation.
In the Riverdale Hospital case, above, the board stated, at p .
278 :
The rights granted under art . 13 . 02 (a) to employees are
important rights and represent an important feature of their
job security. It cannot now be known whether or not, had
the employer complied with art . 13 . 02 (a) at the time that it
chose to terminate the grievor, the representations of the
union steward might have persuaded them to do otherwise .
The action of the employer prevented the grievor from
enjoying the opportunity of having union representation at a
time when his employment was terminated. The damage which
he suffered as a result of that action is, in my opinion,
damage for which he ought to be compensated.
27 . The fact that the Grievor was, by Exhibit 4 , furnished with
an opportunity to submit a written statement by registered mail
explaining his actions with respect to the alleged improper
cashiering procedures on May 4, 1994 does not overcome the breach
of his rights under art . 26 . 3 . His rights had already been
breached by that time .
28 . There is a seamless connection between the meeting of June
13 , 1994, the Grievor' s being suspended on that date (Exhibit 4)
54
and his being terminated on June 23 , 1994 (Exhibit 6) . It is
artificial to arbitrarily divide the process whereby a meeting
was held on June 13 to discuss a matter which might result in
disciplinary action being taken against the Grievor and the
events following which were inextricably associated with it : That
is, to state that the June 13 meeting was insufficiently related
to the discharge of June 23 in an endeavour to make the
suspension effected by Exhibit 4 the only action of the Employer
that was void ab initio. The events of the meeting of June 13th;
the suspension imposed, and the discharge are so inextricably
linked so as to taint not only the suspension but the discharge .
Cf . Hickson-Lands (above) at pp . 338-90 .
29 . It was not suggested that anyone at the meeting of June 13 ,
1994 specifically told the Grievor that the meeting was being
held solely for the purpose of furthering a criminal
investigation and the laying of a criminal charge .
30 . Being substantive in nature, it did not matter that the
Employer was only notified of the Union' s intention to raise the
violation of art . 26 . 3 on May 25 , 1995 . Also, the original
written grievance was "broad enough so as to encompass discipline
which is improper with respect to the procedure followed as well
as the merits of the decision to terminate : Alcan Wire and Cable
(above) at p. 10 (Emphasis in original) . Subject to the Grievor
waiving his substantive rights under art . 26 . 3 , my jurisdiction
t
55
is dependent on the Employer having complied with the provisions
of that article .
31 . There was no evidence that the Grievor waived his rights
under art . 26 . 3 , and it is difficult to see how he could have
done so inasmuch as there was no evidence to show that he was
made aware of his rights under that article .
32 . I do not regard the filing of the grievance on June 20 , 1994
(Exhibit 2) and the receipt by the Grievor of wages, benefits
etc . during his suspension as precluding the Union from relying
on the breach of art . 26 . 3 in connection with the grievance filed
on June 28 , 1994 (Exhibit 3) following his discharge . Failure by
the Employer to adhere to its obligations under the provisions of
art . 26 . 3 affected not only the suspension but the subsequent
discharge . It is the possible benefit to be derived from the
presence of Union representation in relation to any discipline
that might be imposed that is protected by art . 26 . 3 and not just
the more immediate result of the meeting: the suspension imposed
by Exhibit 4 . In fact, as it appears that the Grievor was going
to be given Exhibit 4 no matter what happened at the meeting, it
was the aftermath of the meeting: the ultimate discharge of the
Grievor on June 23rd that was more closely linked to what
transpired at the meeting. As has already been notd, it is
difficult to believe that Mr. Holmes would conduct an examination
of the Grievor only for the purpose of furthering a criminal
56
investigation in the presence of Sergeant Crockford. It is more
probable that Mr. Holmes asked quetions of the Grievor primarily
for the purposes of the Employer: to see if discipline should be
imposed, and Sergeant Crockford asked questions of the Grievor
for the purposes of the criminal investigation.
33 . Once the Employer held the meeting of June 13 , which it was
not required to do, it was the ultimate penalty of discharge that
was directly related to that meeting. And it was the discharge
that was affected by the failure to honour the substantive right
of the Grievor.
34 . While there may 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, I
agree with what was said in the Riverdale Hospital and VS
Services Ltd. cases by Professor Brandt concerning a grievor,
whose termination has been declared void ab initio because of a
failure to follow the requirements of an article to the same
effect as art . 26 . 3 , being subject to the possibility of being
discharged for the same actions, however, in accordance with the
requirements of the collective agreement . This is not a case
where I should not reinstate the Grievor, as was suggested by
counsel for the Employer. Accordingly, it is my award that the
Union' s objection is upheld, and I find the disciplinary action
taken by the Employer in discharging the Grievor on June 23 , 1994
57
was void ab initio . The Grievor will therefore be reinstated to
his former position with the Employer without loss of seniority
from that date he was discharged.
30 . I have a problem, however, with awarding the Grievor
benefits and compensation from the date of his being discharged.
This is because of the failure of the YJnion, until May 25 , 1995,
to alert the Employer of its intention to rely on the failure to
comply with art . 26 . 3 as a basis for making an application at the
commencement of the hearing on June 5 , 1995 to have the
discipline declared void ab initio. It is one thing to find that
the claim was subsumed in the grievance : See Alcan Wire and
Cable, above, at p . 10, and that it can therefore be raised at
the hearing. It is quite another thing to say that relief should
always be related back to the time of the discharge . Ibid. at
P. 11 .
In the case of a grievance that that has proceeded through
the three stages of the grievance procedure, 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
procedure, have been raised by the Union. In this case, in the
absence of prior notification by the Union, I find that the
Employer only knew of the issue on May 25th. Because it was not
informed of the issue before me until that date, it was deprived
of the opportunity to consider its position in the light of the
58
implications that were raised for the first time on May 25th. If
it had the opportunity to do so during the normal functioning of
the grievance procedure, it could have acknowledged its failure
to comply with art . 26 . 3 at minimal cost and then proceeded to
discharge the Grievor in compliance with the requirements of the
collective agreement, as Mr. Drmaj suggested could be done . In
raising this possibilty, I am not saying that such an action
would necessarily succeed.
If the Union had promptly raised the issue at an earlier
point in time, as it should have, and the Employer had maintained
its position, I would have had no problem with awarding
compensation to the Grievor from the date of his discharge .
However, in the circumstances before me, it would be unfair to do
so, and I award compensation and benefits only from the date of
notification (May 25 , 1995 ) .
I will retain jurisdiction to deal with the issue of
compensation resulting from this award, if the parties are unable
to agree on the amount payable .
I would only add that counsel informed me that they had been
unable to find any GSB case that dealt with the issue before me,
and I wish to thank them for their thorough and and well
presented submissions, which I have endeavoured to respond to .
59
Dated at Toronto this 15th day of August, 1995 .
M.R. Gorsky
vice Chairperson
ONTARIO EMPLOYES DE LA COURONNE
CROWN EMPL OYEES DE CON TA RIO
GRIEVANCE COMMISSION DE
SETTLEMENT REGLEMENT
BOARD DES GRIEFS
180 DUNDAS STREET WEST, SUITE 2100, TORONTO, ONTARIO. MSG 1Z8 TELEPHONE/TELEPHONE: (416) 326-1388
180, RUE DUNDAS OUEST, BUREAU 2100, TORONTO (ONTARIO). MSG 1Z8 FACSIMILE/TELECOPIE: (416) 326-1396
August 23 , 1995
AMENDMENT
RE: 809/94 OLBEU (LaHay) and the Crown in Right of Ontario
(Liquor Control Board of Ontario)
Please replace page 58 of the original decision with the revised
page 58 .
Yours truly,
Ct5
A
L. Stickland
Registrar
LS/dbg
Encl.
58
implications that were raised for the first time on May 25th. If
it had the opportunity to do so during the normal functioning of
the grievance procedure, it could have acknowledged its failure
to comply with art . 26 .3 at minimal cost and then proceeded to
discharge the Grievor in compliance with the requirements of the
collective agreement, as Mr. Drmaj suggested could be done. In
raising this possibilty, I am not saying that such an action
would necessarily succeed.
If the Union had promptly raised the issue at an earlier
point in time, as it should have, and the Employer had maintained
its position, I would have had no problem with awarding
compensation to the Grievor from the date of his discharge.
However, in the circumstances before me, it would be unfair to do
so, and I award compensation and benefits only from the date of
notification (May 25, 199S) .
I will retain jurisdiction to deal with the issue of
compensation resulting from this award, if the parties are unable
to agree on the amount payable .
I would only add that counsel informed me that they had been
unable to find any GSB case that dealt with the issue before me,
and I wish to thank them for their thorough and and well
presented submissions, which I have endeavoured to respond to.
r
59
Dated at Toronto this 15th day of August, 1995 .
M.R. Gorsky
Vice Chairperson