Loading...
HomeMy WebLinkAbout2000-0867.Worku.00-12-28 Decision '~AIiI EMFL E LA .'E WN EMFL "'EE; E L '~AIiI GRIEVANCE COMMISSION DE SETTLEMENT REGLEMENT BOARD DES GRIE FS 1 -'-- r"'T[ "FEE" fllE " TI~E T" 1~ TE""E H' TE TELE H' TE (41 ) -1 1 TE -'-- r"'T[ TE ~ E .EA T" ( T) "~ f;' nIr""E TELE IE (41 ) -1 GSB #0867/00 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN AMAPCEO (Worku) Grievor - and - The Crown in Right of Ontario (Ministry of Finance) Employer BEFORE Nimal V Dissanayake Vice Chair FOR THE Stephen Krashinsky, Counsel GRIEVOR Sack, Goldblatt, Mitchell Barristers and Solicitors FOR THE Lucy Siraco, Counsel EMPLOYER Legal Services Branch Management Board Secretariat HEARING December 1 and December 18, 2000 2 PRELIMINARY DECISION Mr Habte Worku has filed a grlevance dated June 16, 2000, claiming that he has been discharged by the employer contrary to the provlslons of the collective agreement Mr Worku was employed as a mediator at the Disputes Resolution Group In the Financial Services Commission of the Ministry of Finance His job involved mediation of disputes between lnsurance companles and individuals who had suffered lnJury In motor vehicle accidents Mr Worku:s discharge followed a complaint by a female employee of an lnsurance company that (1 ) on February 14, 2000, he made sexual advances to her while alone In a meeting room and (2 ) that on February 17, 2000, In a similar situation, he put his hand behind her neck and forcibly kissed her on the lips These alleged incidents (hereinafter referred to as the AFebruary 2000 incidents@) were the subject of an investigation by an investigator appointed by the employer, Ms Margaret Buffington of Buffington & Associates, a private investigation firm Ms Buffington conducted her investigation pursuant to the employer:s WDHP Policy She completed the investigation and issued her 3 report to the employer on April 25, 2000, wherein she concluded that the allegations against Mr Worku had been substantiated Following the lssuance of Ms Buffington:s Report (Athe Report@) Mr Worku was issued a letter of termination dated May 19, 2000, which in part read Re Notice of Termination of Employment This letter will serve to confirm the matters discussed between you and Financial Services Commission Management earlier today On February 21, 2000 the Financial Services Commission of Ontario received a report from an Insurance Company regarding incidents In two mediation meetings which you had with one of their Claims Managers (one on February 14 and the other on February 17, 2000) alleging you assaulted the Claims Manager As per the Ontario Public Service:s Workplace Discrimination and Harassment Prevention Operating Policy, the matter was referred to an independent third party, Buffington and Associates, for investigation Interview were conducted and you were afforded the opportunity to respond However, In your response you were unable to provide any evidence or ralse any substantive lssues which disproved the allegations Your conduct on February 14 and February 17, 2000 was inappropriate and constitutes a serlOUS 4 violation of the Workplace Discrimination and Harassment prevention Operating Policy You assaulted a member of the public whom we serve and such behaviour cannot be tolerated You have violated the trust the Financial Services Commission of Ontario has placed In you as its representative and you have caused the reputation of the Commission to be called into question FSCO Management has taken into consideration the credibility of the statements provided and the conclusions of the investigator, who substantiated the allegations, and we have concluded that the appropriate disciplinary response lS termination Accordingly, this letter will confirm that your employment with the Financial Services Commission of Ontario lS terminated for just cause, effective immediately The grlevor denies that he engaged In the alleged misconduct However, the union has moved that regardless of the meri ts, the Board should, in a preliminary way, declare that the discipline imposed on Mr Worku, le His discharge on May 19, 2000, was a nullity, because the employer had taken into account information which was proscribed by the Asunset clause@ In the collective agreement article 21 5 Article 21, In full, reads ARTICLE 21- PERSONNEL FILES AND DISCIPLINARY RECORDS 5 21 1 There shall be only one official recognized personnel file, which shall contain personnel information including, but not limited to, initial appointment documents, performance appraisals, commendations and disciplinary records 21 2 1 Any document relating to work performance or disciplinary action that lS to be placed on an employee:s personnel file shall be so placed and a copy supplied to the employee within a reasonable time of its preparation 21 2 2 Employees will be made aware of concerns relating to work performance within a reasonable time 21 3 Upon a written request, an employee shall be glven an opportunity to reVlew his/her personnel file, within ten (10 ) calendar days of the request or such longer period of time as lS reasonable, In the presence of a management representative, at a time mutually agreed upon between the employee and the manager, at the employee:s normal work location or another location as may be mutually agreed upon between the employee and the manager 6 21 4 The employee lS entitled to include his/her own explanation of a matter, including a disciplinary incident, as an attachment to the information being placed In his/her personnel file 21 5 Any letter of reprimand, suspenSlon or other sanction will be removed from the personnel file of an employee three (3 ) years following the receipt of such a letter, suspenslon or other sanctions provided that the employee:s personnel file has been clear of similar offenses for the past three (3 ) years Any such letter of reprimand, suspenSlon or other sanctions so removed cannot be sued In any subsequent proceedings Nothing In this paragraph prevents earlier removal by the employee:s manager The unlon:s position lS as follows The investigator had to make a decision on whether to believe the complainant or Mr Worku, who had vehemently denied the allegations In concluding In favour of the complainant, the investigator had taken into account an allegation by another woman who had been employed in the same unit as Mr Worku that Mr Worku had, In 1992, made certain sexual comments to her The unlon points out to the 7 evidence that the employer relied on the inves tiga tor=s report, solely or at least substantially, In concluding that the grlevor was guilty of the alleged misconduct It lS the union=s position that In placing reliance on the Atainted@ report, the employer had contravened article 21 5 In other words, In making its decision the employer had used information prohibited by article 21 5 Relying on the judgement of the Divisional Court In Mol son=s Brewery (Ontario) Limited and Canadian Union of United Brewery, Flour, Cereal, Soft Drink and Distillery Workers, Local 304, December 20, 1982 (unreported) , upheld by the Court of Appeal by endorsement dated June 14, 1983, the unlon submits that In Vlew of the violation of the sunset clause, the Board should declare the grlevor=s termination to be null and void and direct that Mr Worku be reinstated with full compensation, without ability on the part of the employer to re-discipline him for the same conduct In Re Mol son=s Brewery (supra), the AsunseU clause read as follows In the imposition of discipline, if an employee has not been formally disciplined for the same or a related offence for an interval of one year (two years In the case of suspension) his preVlOUS offences will not be referred to But, In any event, discipline imposed will not be referred to 8 after the explry of three years from the date of discipline Disagreeing with the arbitrator, the court held that the clause was mandatory In concluding that the employer had contravened the clause, the Court found that Ait is apparent that Mr Burtt and Mr Busch were gOlng to attach significance and did attach significance to the discipline record without limitation to the period involved In formulating their recommendation to Mr Burkett that the employee be discharged @ The Court held that the sunset clause Amust at least mean, that the company must not attach weight to the previous offences In reaching its decision with respect to discipline or discharge@and also stated, AIn our Vlew the respondent company had no right under the collective agreement to discipline or discharge the grlevor In circumstances In which it attached significance or weight to his prlor discipline record @ In the result, the court ordered It lS our vlew, In the circumstances of this case, that the respondent company cannot now discipline or discharge the grlevor by reason of the incident of February 20, 1981 We can see no final result to the proceedings other than that which was requested by the applicant, namely, that the grievor be reinstated with full compensation 9 The matter lS to go back to the arbitrator That order should be hers, not ours In the present case, In the report itself, the investigator refers to the incident In 1992 as follows Similar fact evidence was obtained during the course of the investigation This evidence in and around 1992, Witness #4 was employed In the same unit as the Respondent She states that she was subjected to comments by the Respondent, when the two of them were alone together She states that these comments were to the effect of the following, Ar:d like to take you away for the weekend@, AYou look nlce today@', Arf I wasn:t married@ or Arf You weren:t married@ She states that she felt uncomfortable when these comments were made, and that they had a sexual innuendo She states that the matter was dealt with inside of her own workgroup There were no allegations of physical contact Documentary evidence confirms that Witness #4 reported this conduct to superlors In October 1992, but felt that she had dealt with the matter herself The evidence clearly establishes two things First, that In determining the lssue of credibility between Mr Worku and the complainant the investigator did place at least some weight on the 1992 incident Thus at p 6 she wrote When taken as a whole, the evidence, including the detailed descriptions of the subject events, the Re sponden t:s lack of explanation, the evidence of 10 Witness #l's state of upset after the event, the reports she made to others, and after the second incident, to her superlor, the similar fact evidence tends to support Witness #1 Secondly, the evidence also establishes that the employer accepted the investigator:s report In correspondence with the unlon following the filing of the grlevance, the employer states that Athe Managemen t:s decision was made solely on the basis of the investigator:s report@ and that AThe Investigator:s Report including the Respondent:s written rebuttal which was appended, was solely used to make the decision to dismiss the Respondent which lS already In your pos ses sion@ In the second stage reply to the grlevance, the employer makes the following statement AM:anagemen t also indicated that its decision to dismiss was based on the investigation report Before rendering its decision, management was fully informed of your response to the draft report and considered your response prlor to making its decision Management accepted the investigator:s findings and conclusions @ In Re Molson:s Brewery, based on the language of the sunset clause before it, the Divisional Court concluded that the employer there had contravened that clause The Court held that 11 Slnce the provlslon was mandatory, the inevitable result was that the discharge was a nullity Before the Board can nullify Mr Worku=s discharge by applying the reasonlng In Re Mol son=s Brewery, the unlon must first establish that the employer was in breach of article 21 5 That requlres a review of the evidence in light of the language of article 21 5 It lS common ground that In 1992 the grlevor received no discipline as a result of the complaint by the woman Indeed, it appears that no formal complaint was made and no investigation took place Instead, the complainant resolved the situation herself The union argued that in those circumstances considering the 1992 allegations In 2000 was extremely unfair to the grlevor Furthermore, it was submitted that by considering incidents for which no discipline had been imposed In a subsequent investigation, the employer had contravened its own WDHP policy In addition, counsel cited arbitral jurisprudence to the effect that where an employer fails to lmpose discipline at the time, it was not entitled to rely on the alleged misconduct later 12 If indeed the employer had contravened any legal obligations it had in the manner it discharged Mr Worku, the union will be entitled to argue what legal consequences ought to flow as a result However, In my Vlew, those lssues do not assist In determining the present motion, here the unio~s position is that the grlevor:s discharge was a nullity because the employer had acted contrary to a specific prOVlSlon of the collective agreement, namely, the sunset clause article 21 5 As a pre- requisite for success In this motion, the union must establish that article 21 5 specifically was contravened The sole focus of article 21 5 lS on Aany letter of reprimand, suspenSlon or other sanction@ The provlslon first obliges the employer to remove letters of reprimand, suspenSlons and other sanctions from the personnel file of an employee three years following receipt of the same provided the employee:s file has been clear of similar offenses for the past three years Second, the provision mandates that the employer cannot use any letter of reprimand, suspension or other sanction so removed, In any subsequent proceeding It lS clear from the language Aany letter of reprimand, suspenSlon or other sanction@ that article 21 5 lS concerned with discipline imposed on an employee It envlsages a situation where an employee had been previously 13 disciplined and that the discipline has been placed on the employee:s personnel file In my Vlew, article 21 5 ties In with article 20 1 which stipulates, In part, that Art lS understood that disciplinary measures will be subject of the principles of progresslve discipline@ The principles of progresslve discipline obliges the employer to take a corrective approach In disciplining employees The corollary to that obligation lS that where an employee commits a disciplinable act, the employer lS entitled to take into account that employee:s past disciplinary record The intent of article 21 5 lS to place a limitation on the right the employer has to consider an employee:s past disciplinary record It lS absolutely clear and undisputed that the grlevor did not recelve any sanction or discipline as a result of the 1992 allegation Therefore, it lS not a situation that lS addressed by article 21 5 In other words, article 21 5 has no application to the facts In the present case The Board reiterates that this decision does not rule upon the unlon:s position that for a number of other reasons the 14 employer was not entitled to resurrect and investigate the 1992 allegation In the course of disciplining Mr Worku for the February 2000 incidents The unlon lS entitled to pursue those lssues and to argue what consequences should follow if it lS found that the employer:s investigation and decision-making process was flawed This decision is confined to a finding that the employer:s decision making process, however else it may have been flawed, did not contravene the specific obligations it had under article 21 5 In the result, the union:s motion is denied I remain seized to deal with all outstanding lssues related to the grlevance Dated at Hamilton, this 28Ml day of December, 2000 ~~ ..:'II-..... 'lor - ':~ I ~ ~~ 'u _~ .. ~ - Nimal V Dissanayake, Vice-Chair