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HomeMy WebLinkAbout1996-0205THOMSEN97_04_16 ONTARIO EMPLOYES DE LA COURONNE CROWN EMPLOYEES DE L'ONTARIO 1111 GRIEVANCE COMMISSION DE SETTLEMENT REGLEMENT BOARD DES GRIEFS 180 DUNDAS STREET WEST; SUITE 2100, TORONTO ON M5G 1 Z8 TELEPHONEITELlipHONE (416) 326-1388 180, RUE DUNDAS OUEST; BUREAU 2100. TORONTO (ON) M5G 1Z8 FACS/MILE/TELECOPIE (416) 326-1396 GSB # 205/96 OPSEU # 96C699 IN THE HATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN OPSEU (Thomsen) Grievor - and - the Crown in Right of ontario (Ministry of the Solicitor General & Correctional Services) Employer BEFORE F D Briggs Vice-Chair FOR THE L Harmer GRIEVOR Counsel Gowling, Strathy & Henderson Barristers & Solicitors FOR THE A Gulbinski EMPLOYER Grievance Administration Officer Ministry of the Solicitor General & Correctional Services HEARING October 28, 1996 November 7, 8, 1996 January 13, 14, 20, 1997 February 12, 1997 -- Ole Thomsen, a CorrectIonal Officer at the Sault Samt Mane JaIl filed a gnevance that he had been "wrongfully and malIcIOusly dlsffilssed" By way of remedy he requested nnmedlate remstatement, compensatIon for all losses and employment accommodatIon amongst other thmgs. Mr Thomsen had been a CorrectIOnal Officer at the Sault Samt Mane J all smce February of 1984 On May, 2, 1996, the followmg letter was wntten to the gneVOf" On May 2, 1996, I met WIth you and your representatIve as a contmuatIOn of our meetmg of December 27, 1995 and April 29, 1996 to reVIew your SItuatIOn WIth respect to my letter dated March 14, 1995 Dunng dus meetIng you did not provIde me WIth any new InformatIOn relatIve to your attendance, nor dId you authonze of a release of medIcal InformatIOn and access to Dr Owen, wluch could have asSISted m clanfymg you record of absenteeIsm. It was recommended by your own PhysIcIan (Dr Moffatt) that you see Dr Owen. Your attendance has been the focus of concern for some tune. The followmg is a summary of your use of attendance credIts smce 1990 YEAR DAYS OCCASIONS 1990 121.5 15 1991 28 7 1992 92.5 6 1993 53 19 1994 53 18 1995 84 3 1996 14 5 (May 1, 1996) There has been (sic) many attempts by Management to dISCUSS your attendance However, you have failed to attend scheduled meetIngs and you have refused to SIgn medIcal releases when you mdicated that there was InformatIon concemmg your absences. As well, on several occasIOns, Management has documented therr concerns to you respectmg your record of absenteeIsm and on March 14 1995 you were gIVe the final wanung. DespIte Management's efforts, there as not been any mdIcatIOn that you are able to attend work on a regular and acceptable basIS. Therefore, m accordance WIth the authonty delegated me under SectIOn 22 of the PublIc ServIce Act, vou are dIsmIssed from employment from the MllliStry of the SolIcItor General and CorrectIOnal ServIces effectIve May 2, 1996 If will be necesslU) for you to unmediately return your Mirustry IdentIficatIOn Card. The Office Manager will be m contact WIth respect to your fmal pay cheque As of thIS date you are not permItted access to tlus InstItutIOn unless permISSIon IS granted by 1 2 me. As per ArtIcle 278.2 of the OPSEU Collectlve.Agreement entitles you to gneve your dislllissal at the second stage of the gnevance procedure provided you do so withm thmy (30) workmg days. Yours Truly, J Lake. At the commencement of these proceedmgs, the Dillon mformed the Board that It had a prelImmary objectIon wIth respect to the scope of eVIdence that the Employer mtended to mtroduce ArtIcle 52 13 states Where an employee is mterviewed by a member or members of management m respect of the Employee's record of attendance at work, no eVidence of that mterview or of the particular aspects of the attendance record upon wInch that interview was based shall be adnussible before the Gnevance Settlement Board m the Arbitration of a Disciplmary Gnevance unless the employee was gtven reasonable notIce of the mtervIew and of the nght to have Umon RepresentatIon at that mterview and the Employee had such Umon representation or declmed that representation m wntmg pnor to that mtervIew It was the Dillon's pOSItIon that the gnevor was forced to attend at a meetIng on May 2, 1996, wherem h1s attendance was dIscussed and where the gnevor was WIthout Dillon representatIon. Dunng the course of that meetIng the gnevor was dIscharged. Accordmgly, much of the eVIdence the Employer mtends to rely upon IS madnussible The Employer opposed the prehmmary objectIon advanced by the Dmon. The Employer took the pOSItIon that the gnevor and the Dillon had waIved theIr nghts to raise theIr prehmmary ObjectIOn on the baSIS It had not been mentIoned earlIer m the proceedmgs It was the Employer's VIew that the objectIon regardIng Dillon representatIon ought to have been raIsed ill a tunely fasmon eIther dunng the course of the gnevance procedure or, at the very least, pnor to the heaIUlgs mto thIS matter In the event that the Board was prepared to entertam the prelnnmary obJectIon, It was the Employer's further pOSItIon that the gnevor had Umon representatIon and It should be allowed to call the full scope of eVIdence regardmg ItS case That IS to say, eVIdence should be allowed regardmg the lengthy attendance h1story of the 3 gnevor wluch led to lus dIscharge On January 10, 1994, the Sault Samt Mane JaIl mtroduced an attendance reVIew process whIch was mstItuted to "promote and encourage satIsfactory staff attendance, to IdentIfy employees whose absenteeism meets and exceeds InstItutIOnal standards or IS a cause for concern, to make appropnate recommendatIOns and to proVIde assIstance to staff and thelI managers who wIll help an employee to enJoy good attendance" The reVIew process was qUIte lengthy and mc1uded the followmg. Although tlus process IS not dIscIplmary, ArtIcle 52.13 of the CollectIve Agreement requrres that the Employee be gIVen reasonable notIce of the mtervIew and of the nght to have Uruon representatIon or declmes It m wntmg pnor to the mtervIew The gnevor's attendance, accordmg to the Employer, had been a concern for a conSIderable penod of tune He had frequent and lengthy absences wluch prompted the Employer to 1ll1TIate a reVIew oflus attendance m accordance WIth the new process In January of 1996, an Attendance Enhancement Program was mtroduced on a MinIstry-WIde basIS. That process was more comprehensIve than that of the reVIew process that had been m place at the JaIl prevIOusly However, there were no substantIve dIfferences between the two systems that need be addressed for the purposes of thIs deCISIon. The new 1996 Attendance Enhancement Program mc1uded def1ll1tIons "RepresentaTIve" was defmed as "a member of an AssocIatIon/Umon who has been deSIgnated by that AssoclatIon/Umon to represent Employee mterests m officlaVformal proceedmgs" As stated preVIously, the Employer had undertaken a reVIew of the gnevor's attendance In 1994, the gnevor was dtagnosed WIth a Sleep Apnoea DIsorder and sought medIcal attentIOn It IS suffiCIent for the purposes of tlus prehmmary matter to say that It was the gnevor's pOSItIOn, wluch was, m lus VIew, substantIated by medical docwnentatIon, that m order for lnm to nnprove lus attendance, he ought to be scheduled to work on contmuous, not rotatmg, slnft. That IS to say that he ought not to work rotatmg slufts It should be noted that at least 4 one medIcal practItIOner dId not agree WIth the gnevor On Apnl 29, 1996, the gnevor and Daryl PItfield, the Local Umon PresIdent, attended at a meetmg wIth Mr Jude Lake, Supenntendent of the Jail. At tlus meetIng the gnevor was asked to SIgn a WaIver that would have allowed the Employer to dISCUSS lus medIcal condItlon WIth one of the physIcIans that he had seen m the past. For reasons wluch are unnecessary to elucIdate m thIs decIsIon, the gnevor had reservatIOns about SIgnmg that WaIver By all accounts, that meetIng was not partIcularly productIve The Supenntendent contInued to ask whether the gnevor was prepared to SIgn a WaIver and the gnevor dId not answer but rather contInually asked what sectIon of the CollectIve Agreement allowed the Employer to request a medIcal WaIver At the conclusIOn of the meetIng, the gnevor was handed a letter wluch stated. Dear Mr Thomsen, Please allow tlus to confirm ISSUes discussed at our meetmg tlus mornmg. Duong tlns meetmg, several tlmes you were asked for your authonzatIon to have Dr Owen to provIde your Employer the results ofvour scheduled appomtment May 30, 1996 The meetmg concluded With your refusal to provIde authonzatlOn. As a result, the appomtrnent has been cancelled. In hght of the foregomg, as no new medical mfonnatlOn IS available, I am prepared to make a deCIsion With respect to your record of absenteeIsm. Tlus decIsIon will be provIded to you at a meetmg I have scheduled With you for May 2, 1996 at 10'00 hours m my office at the Sault Samt Mane JaIl. If you choose, you may be accompamed to tlns meetmg by an Employee RepresentatIve of O.P S.E U If you choose not to attend, the meetmg will take place m vour absence and vou will be allowed no further mput m tlus matter As tlns meetmg IS employment related, It would be m your mterest to attend. At the conclusIOn of the meetIng of April 29, 1996, the gnevor told Mr Lake that he wanted to know Iflus lawyer could attend the meetIng. Subsequently, the gnevor and Mr Pltfield met and dIscussed matters to raIse at the meetIng on May 2, 1996 I heard eVIdence from eIght WItnesses regardmg the events of May 2, 1996 There was a consIderable amount of the eVIdence that was contradtctory Notwlthstandmg how troublmg 5 the wspanty m the eVidence was, much of It was not relevant to the Issue before tlus Board. I will comment further on the dIspanty later I~ the decIsIOn. It IS not my mtentIOn to reVIew the eVidence of each of the eIght Witnesses. I will outhne the relevant facts, as I accept them On the mommg of May 2, 1996, Mr PItfield contacted the gnevor and told hun that he could not attend at the 10 00 o'clock meetmg due to the Illness of hIS child for whom he had nnmewate and sole responsibIhty They agreed that the gnevor would attempt to have the meetIng rescheduled. After a meetIng held m the mommg WIth his managers, Mr Lake asked Mr Kurczak, Day SupervIsor, to arrange rehef coverage for the gnevor to allow for lus attendance at the 10 00 o'clock meetIng m Mr Lake's office Mr Kurczak arranged for Mr PandzIc, another CorrectIOnal Officer, to relIeve the gnevor Mr Kurczak told Mr Thomsen of the arrangements but the gnevor told hun that he would not be attend.mg the meetIng. One of the majors areas of dIspute m the eVidence was whether the gnevor maIntaIned m this WscussIOn and m subsequent dIscussIOns that he was not attendmg the meetIng because lus representative was not avaIlable or because Mr PItfield was not avaIlable or because lus lawyer was not available I fmd that the gnevor saId that lus representatIve was not avaIlable After Mr Thomsen told hnn that he would not be attendmg the meetmg, Mr Kurczak returned to Mr Lake's office and explamed what the gnevor had saId. Mr Lake told Mr Kurczak to order the gnevor to attend at his office for the 10 00 meetIng. Mr Kurczak followed those mstructIons, but the gnevor agam refused. By tlus tlme, Mr Pandzlc had amved at the gnevor's work statIon to relIeve Mr Thomsen for lus 1000 o'clock meetIng. Mr Farrell, a co-worker, was at the work statIon at this time 6 After the second tnne the gnevor refused to attend at the meetIng, Mr Kurczak left the gnevor's work statton and went mto a nearby office to telephone Mr Lake to update htm as to developments. Mr Lake mstructed Mr Kurczak to return to the gnevor's work statton and to have Mr TIghe, another SupefVlsor accompany lum. Once back m the room WIth the gnevor, Mr Kurczak telephoned Mr Lake and placed the phone on the speaker phone mode At the commencement of the speaker phone dIscussIOn, Mr Lake asked who was ill attendance ill the room and he was told by Mr Kurczak. Thereafter there was a dIscussIOn between Mr Lake and the gnevor Mr Lake ordered the gnevor to attend at lus office and the gnevor refused, statIng that he dId not have proper representatton. Thts exchange probably occurred more than once Mr Lake then asked the gnevor If he was now prepared to SIgn the medtcal waIver addressed to Dr Owen, the WaIver that was dIscussed at the Apnl 29, 1996 meetIng. Mr Thomsen refused. Mr Lake then mformed hnn that he was tennmated and he would be escorted from the bUlldmg. Shortly after tlus conversatton, Ms Rankm, Deputy Supenntendent, entered the room WIth the letter of termmatton. She attempted to give It to the gnevor, however, he refused to accept It and It was subsequently delIvered to hnn. The eVIdence regardmg the above was, as stated pefVlously, from eIght dIfferent wItnesses It was heard over a number of days In determmmg the facts as I have set them out above, I have relted on notes taken by Mr Kurczak and Mr Farrell. Both men testtfied that therr notes were contemporaneous. Mr Farrell's oral testnnony complted WIth hIS notes wlule Mr Kurczak's testunony was not totally conSIstent. Indeed, Mr Kurczak's notes stated the gnevor told hnn that he would not go to Mr Lake's office because "lus requested Rep could not make It to the meetIng" Further along m lus notes Mr Kurczak referred to the gnevor, statIng that, "he refused statIng that he wanted lus Rep present and he could not make It for thIS meetmg" Mr Kurczak's testunony was that the gnevor SaId he wanted hIS lawyer When asked to explam thIS dIscrepancy, Mr Kurczak could not. 7 UNIONS SUBMISSIONS Ms Harmer, for the Dmon began by suggestIng that It IS not necessary for thts Board to make a determmatIon regardmg credibility The eVIdence vaned substantIally regardmg what was saId on May 2, 1996 However, m order to resolve the Dmon's prehmmary mOTIon, It IS not necessary to determme exactly what was saId on that day The Dmon took the pOSITIOn m ItS prehmmary mOTIon that the Employer can not mtroduce any eVIdence regardmg the gnevor's attendance In thts regard the Dmon rehes on ArtIcle 529 and ArtIcle 52 13 whIch state 529 Where, for reasons of health, an Employee IS frequently absent or unable to perfonn his duties, the Employer may reqUIre bun to submIt to a medical exammatlOn at the expense of the Employer Article 52.13 ATTENDANCE REVIEW MEETINGS Where an employee IS mtervlewed by a member or members of management m respect of the employees record of attendance at work, no eVIdence of that mtervlew or of the partIcular aspect of the attendance record upon wluch that mtervlew was based shall be adnussible before the Gnevance Settlement Board m the Arbltratlon of a Dlsclplmary Gnevance unless the Employee was gIVen reasonable notice of the mtervlew and of the nght to have Vmon RepresentatIon at that mtervlew, and the Employee eIther had such Vmon RepresentatIon or declmed that representatlon m wntmg pnor to that mtervlew Ms. Harmer suggested that the fimdamentallssue for thts Board to determme IS whether Mr Pandzlc or Mr Farrell were the gnevor's Dmon RepresentaTIves at the meetmg on May 2, 1996 If not, none of the eVIdence the Employer mtends to rely on IS adtmssible The eVIdence was clear that neIther Mr Pandzlc nor Mr Farrell perceIved themselves to be the gnevor's representatIon. Further, the gnevor had not asked and dId not conSIder eIther Mr Pandztc or Mr Farrell to be hIs Dmon RepresentatIve at the speaker phone meetmg that took place on May 2, 1996 Therefore, the Employer generally, and Mr Lake m partIcular, was not entItled to assume that the mere presence ofMr Pandzlc and Mr Farrell meant that they 8 were representing the gnevor, as he IS entItled to be represented III accordance with ArtIcle 52 13 It was contended by the Vmon, m the alternatIve, even If Mr Lake was entItled to make that assumptIon there was at least one management representatIve, that IS, Mr Kurczak, who knew neither Mr Pandztc nor Mr Farrell were the gnevor's representatIves. In rus eVIdence, he stated that he knew Mr Farrell was present because that was rus normal post and Mr Pandztc was present because he was mstructed to reheve the gnevor AddttIonally, there was a conversatIOn, although exactly what was said IS at issue, wherem the gnevor told Mr Kurczak that he was not attendmg because of the non attendance of either rus lawyer or rus representatIve. Therefore, It IS clear that at least Mr Kurczak knew that the gnevor was not represented at the meetmg and, accordmgly he ought not to have allowed It to go on. Indeed, It was the Dmon's VIew that It was mcumbent upon Mr Kurczak, who held the status of an OM16 to bnng the meetmg to an nnmedtate end to ensure that the gnevor was not forced to attend a meetmg held under ArtIcle 52 13 Without Dmon RepresentatIOn. The Dmon conceded that It Ill1ght be satd that Mr Kurczak was not the Manager III charge on May 2, 1996 However, the eVIdence was clear that all managers were gIven educatIOn and trammg and were knowledgable about ArtIcle 52 13 and the nghts that flow from It. Therefore, m the event that Mr Lake could be excused because he could not see the people III attendance on May 2, 1996 there was a manager who knew that the gnevor was there WIthout representatIon. In the final alternatIve, It was the Dmon's pOSItIon that If all the eVIdence IS found to be relevant and must be conSIdered, the credible eVIdence overwhelmmg supports the Dmon s propOSItIon that the gnevor was WithOut Dmon RepresentatIon at the meetmg held on May 2, 1996 The eVIdence of the Employer's four WItnesses was not conSIstent amongst 9 themselves. The Dmon's eVIdence was not only consIstent as between the dJfferent wItnesses, but was also consIstent WIth the wntten record that was documented by two dIfferent mdlvlduals on May 2, 1996 The Dmon suggested that ArtIcle 52.13 has a number of dIfferent components The meetmg cannot take place unless reasonable nonce of the meetmg has been gIven. The mdlVIdual must be notlfied oftherr opportumty ofDmon Representanon or they must declme that nght m wntmg pnor to the mtemew begmmng. It was Ms Harmer's assertIon that the onus IS on the Employer to ensure that all the elements have been met pnor to the mtemew Tlus assemon IS buttressed by the need to have a Walver sIgned. That places a posInve oblIgatIOn on the Employer OtherwIse, the Employer would not be sure If an employee was walVmg theIr nght to representatlOn. Indeed, both Ms Rankm and Mr Lake stated m theIr eVIdence that they would not begm a meetmg under ArtIcle 52 13 m the absence of Dmon Representanve or a sIgned letter declInmg that representanon. N otwIthstandmg that asser1:1on by Mr Lake, he proceeded WIth the speaker phone meetmg on May 2, 1996, WIthout knowmg who the gnevor's representanve was. Ms. Harmer suggested that It could reasonably be stated that the speaker phone meetmg of May 2, 1996, was not the meetmg that the gnevor was gIven nonce of on Apn129, 1996 The gnevor was nonfied that he would be expected to attend a meetmg on May 2, 1996, at 10 00 hours m Mr Lake's office The speaker phone meetmg cannot be saId to have taken place m Mr Lake's office Therefore, the Employer falled to proVIde reasonable nonce of the speaker phone meetmg, wluch renders any eVIdence from that meetmg that Illight be relIed upon by the Employer machmssible m accordance wIth ArtIcle 52 13 Ms Hatmer contended that although there IS some dIspute about what precIsely the gnevor satd regardmg Ius lack of umon representanon, there IS no doubt that the Employer knew that 10 the gnevor dId not want to proceed wIth the meetmg because he had concerns about hIS representatlon. Whether the gnevor satd lawyer or representatIve IS not determmatIve of thIS Issue. Even If the gnevor saId lus lawyer could not attend, It was mcumbent upon Mr Lake to remmd the gnevor oflus nghts Wlder ArtIcle 52.13 and lus obhgatIons. At the pomt where Mr Thomsen made the matter of representatIon an Issue, the Employer ought to have been VIgIlant about ensunng that Its obhgatlons had been met regardmg the gnevor's nght to representatIon. Mr Lake testIfied that he knew m advance that unless the gnevor sIgned a WaIver of medIcal mformatlon that he was gomg to fire hun. The gnevor's very employment status was at peril and yet Mr Lake dId not ensure that the gnevor had representatlon dunng the course of any meetIng held to dISCUSS the matter Ms Harmer asserted that the Attendance Enhancement Program sets out defimtlOns mcludmg Umon RepresentatIve and the fact that the representatIve must be so desIgnated. That bemg the case, If there IS any doubt as to the defrmtIon of a Umon RepresentatIve, one need look no further than the Attendance Enhancement Program Itself. Mr Lake conceded that If the gnevor had come to lus office, neIther Mr Pandztc nor Mr Farrell would have been able to accompany hun because both of them were assIgned specIfic tasks on the Urnt and could not leave therr assIgned posts He also conceded that the gnevor dId not want to speak on the speaker phone GIVen those concesslOns, It cannot be saId that the gnevor had less nghts because a speaker phone meetmg was fOIsted upon lum than he would have had If he attended at Mr Lake's office It was subrmtted by the Umon that Mr Lake's assumpnon that eIther Mr PandzIc or Mr Farrell were the gnevor's representatIve arose after the fact to get lumself out of the trouble he fOWld lumself m. The eVIdence before tlus Board was clear that neIther Mr PandzIc or Mr Farrell was a Umon Steward. NeIther had been tramed m attendance reVIew program mfOlmahon and neIther knew of the gnevor's partIculars Mr Lake conceded that the chOIce 11 of a Umon RepresentatIve IS the employee's prerogatIve GIVen that conceSSIOn, It must be clear that the Employer should not have assumed that eIther Mr PandzIc or Mr Farrell were the gnevor's Umon RepresentatIves. The Umon relted upon Re Miracle Food Mart and United Food and Commercial Workers', Local 175 and 663 (1983), 11 L A.C (3d) 320 (K.P Swan), Re TRW Vehicle Safety Systems Division and Amalgamated Clothing and Textile Workers's Union, Local 1698 (1990), 13 L.A.C (4th) 8 (Musgrave), Re Corporation of City of Toronto and Canadian Union of Public Employees, Local 79 (1995), 47 L.A.C (4th) 197 (G.J Charney), Re: B.C. Pavilion Corp. and British Columbia Government Employees' Union (1990), 14 L.A.C (4th) 62 (M.I.Chertkow), and Re Toronto Western Hospital and Canadian Union of Public Employees', Local 1744 (1985), 19 L.A.C (3d) 191 (M. PIcher) Ms Harmer subrmtted that the cases were consIstent that the purpose of representatIonal nghts as set out In a CollectIve Agreement cannot be served by merely havmg a member of the barga1010g urnt 10 attendance In order for an employee to benefit from the representatIonal nghts, It IS essentIal that the representatIve attendmg WIth the gnevor be somethtng more than a note taker or a WItness to the proceedmgs EMPLOYER SUBMISSIONS Ms Gulb1Oskt, for the Employer, stated that the fundamental Issue for thts Board to determme IS not whether the gnevor had uruon representatIon but rather whether the meetIng held on May 2, 1996 was held 10 accordance WIth Arttcle 52 13 The Employer contended that the gnevor was dIscharged for excess absenteeIsm. HIS attendance at work had been a concern over a long penod of tIme and the gnevor had 12 receIved progressIve warmngs WIthOut any Improvement. It therefore cannot be saId that as of April of 1996, the gnevor was unaware th~t ills employment status was tenuous Indeed, arguably the gnevor has known that he was at nsk smce March of 1995, when he receIved a letter that stated tennmatlon was a possibIlIty The gnevor was fired followmg repeated refusals to SIgn a medtcal waIver He was Informed m a letter dated April 29, 1996, that a deCISIon would be made regardmg ills future He was notrfied of the May 2, 1996, meetIng and that meetIng took place, albeIt over the telephone Due to ills failure to SIgn the waIver for release of medIcal mformatlon hIS employment was tennmated. In ItS opemng statement, the Employer mformed the Board that It would establIsh and argue that the Umon and the gnevor waIved therr nght to argue the Issue of umon representatlon. However, that argument was not put argued m fmal subrmssIOns The Employer strenuously asserted that the gnevor was never demed the nght to umon representatlon at any meetIng. Indeed, there was eVidence that some meetIngs had been rescheduled because of the gnevor's concerns regardIng representatlon. Therefore, there was no reason for the Employer to deny the gnevor umon representatlon on May 2, 1996, Tills meeting was a cnl1cal Juncture m dealmg WIth the gnevor and ills attendance problems and It makes no sense that the Employer would suddenly deny the gnevor umon representatIOn. The Employer mamtamed that the gnevor never stated that he was not attendmg the meetmg m Mr Lake's office on May 2, 1996 because of a lack of umon representatIon. GIVen Mr Thomsen's refusal to attend, Mr Lake had no alternatlve but to engage lI1 a dISCUSSIOn WIth the gnevor over the speaker phone Dunng the speaker phone dISCUSSIOn, the gnevor and 13 Mr Lake lid not engage m liscussIOn of specIfic attendance matters Therefore, the speaker phone conversanon ought not to be consIdered a meetmg pursuant to Artlcle 52 13 It was further conceded by the Employer that the ongmal purpose of a meetmg on May 2, 1996, was to dISCUSS and deal wIth the gnevor's attendance problems Due to lus faIlure to attend the meetmg and gIven the lack of dIscussIOn regardmg lus attendance, no meetmg pursuant to Arttcle 52.13 took place on May 2, 1996 The Employer comphed WIth Arttcle 52.13 by gIVIng nonce of the meetIng and mfonnmg the gnevor onus nght to representanon. Any non-comphance regardmg Artlcle 52 13 was a drrect result of the gnevor's conduct. His refusal to attend at Mr Lake's office and lus fallure to dISCUSS lus attendance provoked the speaker phone liscussIOn. In the alternanve, If there was m fact a meetmg under Artlcle 51 13, any lifficulnes ansmg from that meetmg are as a dIrect result of the gnevor's conduct and therefore, ought not to be held agamst the Employer The eVldence of all WItnesses was consIstent that at no tune dId Mr Lake tell Mr Thomsen that he was mtennonally denymg Dmon RepresentatIOn. Indeed, the only reason Mr Lake was on the end of a speaker phone and not phYSICally m the same room as the gnevor was because the gnevor put hnn there Ms Gulbmskl asserted that m the event that the Board fmds a meetmg was held m accordance Wlth Arttcle 52.13, I must find that the only matter dealt WIth was the Slgmng of a medIcal waIver and therefore there IS httle eVldence wluch would be madnussible At most, It was suggested that only eVIdence regardmg what occurred after January 15, 1996, should be excluded. In reply, the Dillon expressed surpnse at the Employer's poslnon that the meetmg on May 2, 1996, was not a meehng held under Artlcle 52 13 If the Employer wanted to resIle from 14 Its posItIOn that the gnevor was fired for absenteeIsm, It ought to have sent a letter consIderably dIfferent from the actual letter of dIscharge DECISION The first Issue to be addressed IS whether the speaker phone dIscussIOn of May 2, 1996, was a meetIng held m accordance WIth ArtIcle 52 13 If so, was the gnevor proVIded WIth Druon RepresentatIon and If not, what remedy flows from that contractual breach. After a reVIew of the eVIdence I must conclude that the speaker phone dIscussIOn held on May 2, 1996, was a meetIng as contemplated m ArtIcle 52 13 The gnevor was properly notIfied of an nnpendmg meetIng to dIscuss lus attendance problems. Mr Lake stated m the letter he gave to the gnevor at the end of therr meetIng on Apnl 29, 1996, "I am prepared to make a decIsIon WIth respect to your record of absenteeIsm. Tlus decIsIOn will be proVIded to you at a meetIng I have scheduled WIth you for May 2, 1996 at 1000 hours m my office at the Sault Ste. Mane Jail." The letter contInues WIth express notIce of Mr Thomsen's nght to uruon representatIon at the meetIng. On May 2, 1996, after the gnevor refused to attend at Mr Lake's office, llTespectIve of the reason for that fallure, a speaker phone dISCUSSIOn took place WIth Mr Lake on one end of a telephone and the gnevor on another Agam, wlule the eVIdence IS not consIstent as to precIsely what was saId dunng that dISCUSSIOn, there can be no doubt that the gnevor was asked whether he would SIgn a release form for medIcal mformatIOn. Tlus matter was precIsely the tOpIC wluch had been dIscussed at the April 29, 1996 meetIng and the very Issue wluch Mr Lake satd would be addressed m the letter he gave to the gnevor at the conclUSIOn of that meetmg. Mr Lake satd he would gIve lus deCISIon about the gnevor's absenteeIsm and that IS exactly what he dId dunng the speaker phone conversatIon. GIVen those facts, It 15 would be dIfficult to find that the speaker telephone dIscussIOn was not a meetmg as consIdered m Art1c1e 52 13 I am buttressed m that Vlew by the letter of termmatIon. It begms, "On May 2, 1996, I met wIth you and your representatIve as a contmuatIon of our meetmg of December " Accordmg to Mr Lake, the termmatIOn letter was prepared pnor to the speaker phone conversatIon. However, the Employer had an opportunIty to alter the letter If It felt sometlung needed to be corrected because the gnevor refused to accept the letter before he left the JaIl. If the Employer felt that no meetmg was held to dISCUSS Mr Thomsen's attendance, It should have changed the substance of that letter Havmg fOWld that the speaker phone dIscussIOn constItuted a meetIng as consIdered m Arttc1e 52.13, I must now consIder IT that artIcle was breached. The Umon took the poslnon that the gnevor was not glVen Umon Representanon. The Employer was fmnly of the Vlew that the gnevor was never demed such representanon and mdeed, had both Mr Pandzlc and Mr Farrell to assIst hun m lus efforts. Agam, I must fmd for the gnevor on the quesnon of umon representatIOn. As stated preVlously, I am of the Vlew that the gnevor told Mr Kurczak that he would not attend at Mr Lake's office because he dId not have proper representatlOn. The eVldence, part1cularly the contemporaneous notes, leads me to the mescapable conc1uslOn that Mr Thomsen specIfically spoke of lus "representanve" not lus "lawyer" Further, I fmd that dunng the course of the speaker phone dIScussIon, the gnevor mennoned lus lack of representanon. At the vel)' pomt where the gnevor SaId that he was WlthOUt representatIon, the Employer, eIther Mr Kurczak or, more appropnately, Mr Lake, should have brought the dlscusslOn to an end. At the vel)' least, the Issue of representatIOn should have been dIscussed and dIsposed of before contmumg. 16 F or these purposes, the Employer cannot assume that the gnevor had urnon representatIOn merely because of the presence of two bargaImng urnt members Artlcle 52 13 IS predIcated on the nght to umon representatlon to the pomt where, m order to waIve that nght, an employee must mdIcate such m wntmg pnor to the commencement of the mtefV1ew an mtentIOn to waIve It. Where such a clear and express nght eXIsts, It IS not wIthm the Employer's purvIew to assmne representatIon. Tlus would be tIue m the event that an employee was sllent about representatIon. It IS partIcularly so m tlus mstance where the gnevor announced Ius lack of representatIon and Ius desIre to reschedule the meetmg to allow for lum to be properly represented. It IS not suffiCIent for the Employer to argue that It never expressly demed the gnevor urnon representatIon. To assmne that Mr PandzIc and/or Mr Farrell were suffiCIent for the gnevor s representatlon, partIcularly m the face of Ius repeated obJectIOn, was tantamount to denymg Mr Thomsen UIllon representatIon. Mr Lake asked for and receIVed a lIstIng of people WIthm heanng dIstance of the speaker phone dIscussIOn and was assured that there were bargammg urnt members present. In my View, It cannot be saId that such actIon IS not suffiCIent to satIsfy the gnevor's nght to representatIon. Mr Lake testrlied that he understood and appreciated the unportance of urnon representatIon generally and dunng the attendance reView process specIfically He ought to have known that he was at nsk embarkmg upon any dISCUSSIon regardmg attendance If ArtIcle 52 13 was not strIctly adhered to The Umon proVided much JlUlsprudence on the purpose of urnon representatIon at meetmgs held to dISCUSS dISCIplIne and employment status I do not mtent to reView the law It IS suffiCIent to say that the ovenldmg pnncIple has been establIshed that, m the face of a breach of the nght to urnon representatIon dunng such meetmgs, the resultmg dIscIplme was found 17 to be void ab initio As a general proposition, I accept that Junsprudence and endorse It. However, accordmg to the partIes, there has been no deCISIOn to date regardmg the appropnate remedy given a fmdmg of a breach of Arttcle 52 13 The Omon would have me dIsallow VIrtually all of the eVIdence the Employer would rely on. The Employer conceded that m the face of a breac~ eVIdence subsequent to January 15, 1996, would be madnussible In the facts of tIns case, I fmd that much of the eVIdence that the Employer would probably rely upon IS madnussIble The letter of telmmatIon was dehvered to the gnevor after the meetmg of May 2, 1996, and mcluded an extensIve reVIew ofrus attendance Arttcle 52 13 states Where an employee IS mtervlewed by a member or members of management m respect of the employee's record of attendance at work, no eVidence of that mtervlew or of the particular aspect of the attendance record upon which that mtervlew was based shall be aclrrussible before the GrIevance Settlement Board (EmphasIs added) In tlus mstance, the "aspect of the attendance record upon whIch the mtefV1ew was based", was set out m the letter oftennmahon dated May 2, 1996 That letter contamed an extensIve, perhaps exhaustive, reVIew of the gnevor's attendance GIven that the gnevor's attendance record was set out m detatl m the May 2, 1996, letter and that Mr Lake stated m rus earher letter of April 29, 1996, that he was "prepared to make a decIsIon WIth respect to (the gnevor's) record of absenteeIsm", there can be httle doubt that VIrtually rus entIre absenteeIsm record was the "aspect of the attendance record upon whIch the mtefV1ew was based" In order for thIS Board to agree WIth the Employer's VIew of the llffilts to be placed on the exclUSIOn of eVIdence m thts matter, Arttcle 52 13 would have to say that only eVIdence of the actual mtemew IS excluded. However, Arttcle 52.13 dIsallows eVIdence of the partIcular aspect of the attendance record. In the mstance matter, much of the grIevor's attendance record was "the partIcular aspect of the attendance record up wruch that mtefVIew was 18 based", If not all. Mr Lake was ready to make a decIsIOn regardmg the gnevor's attendance He scheduled a meetIng for May 2, 1996, to finally deal With the matter Indeed, I am of the View that he was frustrated and determmed to have that meetIng proceed llTespectIve of the crrcumstances While that nught be ooderstandable, It IS not allowed If the meetIng was held, as I have foood It was, m accordance WIth ArtIcle 52 13 and the gnevor dId not have uruon representatIOn. In mstances where the nght to umon representatIon dunng the nnposltIon of dlsclplme IS proVided for m the collectIve agreement, Boards of ArbItratIon have generally foood that the only appropnate remedy IS to VOId the resultIng dlsclplme In the mstant matter, the partIes have proVided the appropnate remedy and that IS to lmnt the eVIdence wluch can be admttted by the Gnevance Settlement Board. For all of those reasons, I uphold the Dmon's prehmmary motIon to the extent set out above I will remam seIZed m the event that the partIes have dIfficulty ImplementIng tlus decIsIon. The partIes are to notIfy the Gnevance Settlement Board regarding dates for tins matter to contInue ~ FelICIty D Bnggs ~ VIce Charr