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HomeMy WebLinkAbout2001-1372.Xanthopoulos.02-03-28 Decision ~M~ om~o EA1PLOYES DE LA COURONNE _Wi iii~~~i~T DE L "ONTARIO COMMISSION DE REGLEMENT "IIIl__1I'" BOARD DES GRIEFS Ontario 180 DUNDAS STREET WEST SUITE 600 TORONTO ON M5G 128 TELEPHONElTELEPHONE. (416) 326-1388 180 RUE DUNDAS OUEST BUREAU 600 TORONTO (ON) M5G 128 FACSIMILEITELECOPIE. (416) 326-1396 GSB#1372/01 UNION# OLB535/01 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN Ontario Liquor Boards Employees' Union (Xanthopou los) Grievor -and- The Crown In Right of Ontario (Liquor Control Board of Ontario) Employer BEFORE Randl H Abramsky Vice-Chair FOR THE GRIEVOR Ursula Boylan Counsel Koskie Minsky Barristers & Solicitors FOR THE EMPLOYER Myfanwy Marshall Counsel Legal Services Liquor Control Board of Ontario HEARING March 15, 2002 2 AWARD On November 13 2001 the gnevor Steve Xanthopoulous, was dIscharged for allegedly remOVIng a gIft "flask" from a case of lIquor for hIS own personal gaIn on October 22, 2001 and mIsrepresentIng what occurred to management. A gnevance allegIng a vIOlatIOn of "ArtIcle 264" - whIch reqUIres Just cause for dIscIplIne and dIsmIssal - "and any applIcable artIcles" was filed on November 21 2001 At the outset of the heanng, the Umon raised a prelImInary obJectIOn to the gnevor's dIscharge based on ArtIcle 26 3 of the collectIve agreement. That provISIOn states 26 3 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 nght to Umon RepresentatIOn In advance of the meetIng. The employee shall be entItled to have a Umon representatIve at such meetIng provIded thIS does not result In undue delay The Umon asserts that the Employer faIled to comply wIth thIS provISIOn and that, as a result, the dIscIplIne Imposed IS void ab intio Facts The gnevor untIl hIS dIscharge had worked for the LCBO SInce 1980 and for the past seventeen years worked at the Durham LOgIStICS FacIlIty On October 22, 2001 the gnevor was vIdeotaped removIng a gIft flask from a case of lIquor 3 On October 26 2001 Bruce PIzzolato DIrector - Durham LOgIStICS FacIlIty Issued a memo to all staff concernIng the removal of gIft pack cases The memo states as follows To ALL DURHAM STAFF From Bruce PIzzolato Date October 26 2001 Re GIft Pack Cases It IS becomIng very apparent from the number of complaInts I am reCeIVIng from our RetaIl Sores concernIng GIft Pack Cases arnvIng at theIr locatIOn from Durham wIth ObVIOUS sIgns of tampenng and the gIft Items mISSIng, that these Items are beIng STOLEN InspectIOns of cases here at thIS facIlIty are also IndIcatIng the same I have been furnIshed wIth reports from Durham Secunty Staff wIth names, dates, and tImes of IndIVIduals actIng SUSpICIOUS and Inappropnate, relatIve to theIr Job dutIes around thIS type of product. I am left wIth no other chOIce but to have our vIdeo surveIllance Increased and placed out of sIght In key areas of the warehouse In an attempt to curb thIS or deal severely wIth any IndIVIdual caught. It IS unfortunate that I have to subJect the entIre staff at thIS facIlIty to thIS and I apologIze to those who have the morals and ethIcs that would otherwIse preclude them from partIcIpatIng In such an actIvIty In conclusIOn, anyone caught remOVIng any LCBO property whether It be alcoholIc In nature or not, from the warehouse wIll be ImmedIately termInated and all eVIdence turned over to the Durham RegIOnal PolIce for further actIOn. AccordIng to the gnevor on eIther October 30 or October 31 2001 near the end of the ShIft, hIS manager told hIm that "they need you In the front office" When he asked why the manager told hIm that he was not aware, that he was Just told to Instruct hIm to come The gnevor then proceeded to the front office He was not sure whether he or Umon RepresentatIve Sousa amved first, but stated that when he saw Sousa he asked hIm what was gOIng on, to whIch Sousa replIed that he dIdn't know Sousa then asked hIm 4 why he was there, and the gnevor responded, "I don't know" At that pOInt, three members of management came In - DIrector Bruce PIzzalato Nell Lemhan, Human Resources Manager- Durham LOgIStICS FacIlIty and Vic ArauJo General Manager of OperatIOns The gnevor testIfied that he ImmedIately asked PIzzalato why the Umon representatIve was there, statIng that he dIdn't needed one He was told that It was for hIS "protectIOn. " Umon RepresentatIve Sousa's recollectIOn was qUIte sImIlar He testIfied that he heard hIS name on the publIc address system near the end of the ShIft, and when he sWIped out, he saw Bruce PIzzalato who asked hIm to stay for a few mInutes because he was needed at the front office He testIfied that he went there and saw the gnevor outsIde the office The gnevor then asked hIm what was gOIng on, and he replIed that he "dIdn't know - dId they tell you anythIng" to whIch the gnevor replIed "no" He further testIfied that when management came In, the gnevor asked, "what was gOIng on and why was the Joe here" and PIzzalato answered, "Joe IS here as a umon representatIve, for your protectIOn. " General Manager of OperatIOns Vic ArauJo testIfied that he, not PIzzalato was the one who spoke to Sousa about attendIng at the front office, askIng hIm to stay for a few mInutes because management needed to meet wIth an employee and needed hIm present. He recalled that Sousa was already seated In the front office when management arnved and that the gnevor arnved shortly thereafter After everyone sat down, ArauJ 0 testIfied that the gnevor asked what was gOIng on, why was the umon there and that 5 eIther PIzzalato or Nell Lemhan replIed that the meetIng was about the opemng of cases and management thought that It would be beneficIal to have the umon present. What IS clear from all of the testImony IS that pnor to the start of the meetIng, the gnevor was not told the purpose of the meetIng, and that Umon RepresentatIve Sousa was only told that he was needed to be present when management met wIth an employee On cross-eXamInatIOn, the gnevor acknowledged that at the outset of the meetIng he was told that the purpose of the meetIng was to ask questIOns regardIng the opemng of cases, but he demed that he was aware that dIscIplIne mIght result. He testIfied that when he saw the October 26 2001 memo he became concerned because he regularly opens lIquor cases as part of hIS Job He dIscussed thIS concern wIth a manager Dan WhIte, and asked hIm what he should do when he needed to open a case WhIte told hIm that he would get back to hIm. He stated that he dIscussed these concerns at the meetIng on October 31 2001 because he wanted to clanfy the sItuatIOn. Nell Lemhan testIfied that DIrector PIzzalato stated, at the outset of the meetIng, that the purpose of the meetIng was to ask a couple of questIOns about the concerns the gnevor had raised wIth management and the reasons why he would have to Interact wIth cases On cross-eXamInatIOn, Lemhan defined "InteractIng" wIth cases as "opemng and takIng stuff out" of them He testIfied that the reason the gnevor was questIOned was because there was vIdeotape of hIm InteractIng WIth cases on October 22, 2001 and because he had made managers aware that he had concerns about opemng cases whIch 6 arose out of the October 26 2001 postIng. When asked, on cross-eXamInatIOn, whether the vIdeo of October 22 showed the gnevor pullIng out a gIft pack, Lemhan answered, "yes, he was InteractIng wIth a case" He acknowledged that at no pOInt was management frank about havIng the vIdeotape of October 22 It was not mentIOned. Nor was theIr concern that he had stolen a gIft flask mentIOned at the meetIng. From the testImony of both Lemhan and ArauJo It IS clear that management called the meetIng to questIOn the gnevor about hIS opemng of lIquor cases, both In general - l.e what reasons he would have to Interact wIth cases generally - as well as specIfically about October 22, 2001 Both Umon RepresentatIve Sousa and Human Resources Manager Lemhan took notes of the October 31 2001 meetIng, and the notes IndIcate that the gnevor was specIfically asked about October 22 - whether he Interacted wIth cases that day AccordIng to Sousa's notes, he was also asked whether he took anythIng out of the gIft packs, although Lemhan demed thIS It IS clear based on the October 26 2001 postIng that remOVIng gIft packs could lead to dIscIplInary actIOn. On November 2, 2001 the Employer Issued a "NotIce of Intended DIscIplIne" to the gnevor adVISIng hIm that "It IS alleged that you removed a gIft "Flask" from a case of Crown Royal for your own personal gaIn on Monday October 22, 2001 As a result dIscIplInary may be taken agaInst you." He was asked to provIde a wntten response to the allegatIOn wIthIn three days and a meetIng was scheduled for November 9 2001 The letter further states "Please be advIsed that you wIll be entItled to umon representatIOn, as dIscIplIne may result from the meetIng. " 7 On November 13 2001 the gnevor was dIscharged for remOVIng a gIft "flask" from a case of Crown Royal for hIS own personal gaIn on October 22, 2001 The letter states, In part: Based on our InVestIgatIOn and your statements In the two meetIngs held wIth you, It IS my conclusIOn that you dId remove the gIft "flask" for your own personal gaIn. Our InVestIgatIOn also leads me to belIeve that you contInue to mIsrepresent the actual events of October 22, 2001 In addItIOn to the above, I must note that the InformatIOn you provIded both In your wntten response and In the meetIng of October 31 2001 and November 9 2001 conflIcts WIth InformatIOn avaIlable to us ThIS causes great concern wIth respect to your credIbIlIty Consequently based upon the eVIdence at my dIsposal and havIng gIven senous conSIderatIOn to thIS matter your employment wIth the LCBO IS termInated effectIve ImmedIately On November 21 2001 a gnevance contestIng the gnevor's dIscharge was filed. On January 3 2002, notIce of the arbItratIOn heanng, scheduled for March 15 2002, was Issued. On February 15 2002, counsel for the Umon advIsed the Employer that It planned to raise a prelImInary obJectIOn to the ImpOSItIOn of the dIscIplIne based on ArtIcle 26 3 At no pOInt between October 31 2001 and February 15 2002 had the Issue of the alleged vIOlatIOn of ArtIcle 26 3 been raised by the Umon. Positions of the Parties 1 The Union The Umon submIts that the Employer clearly vIOlated ArtIcle 264 of the collectIve agreement, rendenng the dIscIplIne Imposed void ab intio It contends that the meetIng was "for the purpose of dISCUSSIng a matter whIch may result In dIscIplInary actIOn beIng 8 taken agaInst the employee " - specIfically the gnevor's actIOns on October 22, 2001 AccordIngly In that sItuatIOn, the collectIve agreement provIdes that "the employee shall be made aware of the purpose of the meetIng and hIs/her nght to Umon RepresentatIOn In advance of the meetIng." ThIS, In the Umon's submIssIOn, was not done The gnevor was not advIsed, In advance of the meetIng, the purpose of the meetIng, or of hIS nght to umon representatIOn. The Umon submIts that although, when It called the gnevor to the meetIng on October 31 2001 the employer suspected that the gnevor had stolen the gIft flask, It never advIsed the gnevor of ItS SuspIcIOns before or dunng the meetIng. Nor dId It advIse hIm, In advance or at any tIme dunng the meetIng, that they would be dISCUSSIng a matter whIch mIght result In dIscIplInary actIOn. Yet, It submIts, the clear purpose of the meetIng was to ask questIOns about October 22, 2001 The Umon asserts that the GSB case law clearly supports ItS posItIOn, CItIng OLBEU (La Hay) and LCBO GSB No 809/94 (Gorsky) OLBEU (Franssen) and LCBO GSB No 1636/96 (Mikus) and OLBEU (Pedneault) and LCBO GSB No 1568/98 (Bnggs) Those cases, It argues, establIsh that ArtIcle 263 creates a substantIve, rather than a procedural, nght both to advance notIce of the purpose of the meetIng whIch may lead to dIscIplIne and the nght to umon representatIOn at that meetIng. The Umon further contends that the employer cannot escape ItS oblIgatIOns under ArtIcle 263 by relYIng on the fact that the gnevor and Umon RepresentatIve "should have known" that the meetIng mIght lead to dIscIplInary actIOn, based on the subJect matter of the meetIng - the opemng of cases It submIts that the oblIgatIOn under ArtIcle 9 26 3 IS to Inform an employee about the purpose of the meetIng, "In advance of' the meetIng, not "at the meetIng." Nor In ItS VIew can It escape ItS oblIgatIOns by havIng Umon RepresentatIve Sousa attend the meetIng. It argues that by not dIscloSIng the true purpose of the meetIng, the abIlIty of Mr Sousa to represent the gnevor was sIgmficantly undermIned. The purpose of ArtIcle 263 the Umon asserts, IS to protect an employee dunng a meetIng wIth management whIch may lead to dIscIplIne ProtectIOn IS provIded by InformIng the employee, In advance of the purpose of the meetIng and adVISIng them of hIS or her nght to umon representatIOn. It contends that the provIsIOn protects an employee agaInst exactly what happened on October 31 2001 - an employee, not knowIng the reason for the meetIng, beIng asked specIfic questIOns about a matter whIch may result In dIscIplIne Further It argues that the eVIdence clearly establIshes that management relIed on comments the gnevor made at that meetIng, as set out In the November 13 2001 letter of dIscharge The Umon suggests that the Employer acted correctly under ArtIcle 263 when It Issued the NOm on November 2, 2001 whIch specIfically advIsed hIm that there would be a meetIng to dISCUSS a matter whIch mIght lead to dIscIplIne and that he had the nght to have a umon representatIve present. It submIts that IS what the Employer should have said to the gnevor before the October 31 2001 meetIng, but dId not. 10 The Umon contends that because the Employer vIOlated the gnevor's substantIve nghts under ArtIcle 26 3 the dIscIplIne Imposed IS VOId ab initio It submIts that the gnevor should be reInstated, wIth compensatIOn from February 15 2002, the date that the Umon raised the Issue of ArtIcle 26 3 wIth the Employer It submIts that the GSB case law IS clear that delay In raiSIng thIS Issue does not Waive the obJectIOn but does Impact the remedy that may be ordered. OBLEU (LaHay) supra 2. The Employer The Employer submIts that there was no vIOlatIOn of ArtIcle 26 3 of the collectIve agreement. It asserts that the gnevor was told, at the outset of the meetIng, that the purpose of the meetIng was to dISCUSS hIS InteractIng wIth cases At that tIme based on the October 26 2001 postIng, the gnevor knew that InteractIng wIth cases mIght lead to dIscIplInary actIOn. It submIts that Umon RepresentatIve Sousa was aware that hIS role was to represent the gnevor and that the gnevor was specIfically told that Sousa was at the meetIng for hIS protectIOn and benefit. It would have been redundant, In ItS VIew to tell the gnevor In those cIrcumstances, that the meetIng was to dISCUSS a matter whIch mIght lead to dIscIplIne and that he had the nght to umon representatIOn. It submIts that all of the InformatIOn reqUIred by ArtIcle 26 3 was ImplIcIt and clear to both the gnevor and Sousa at the tIme The Employer contends that there IS no oblIgatIOn In the collectIve agreement to Issue a Nom before It can meet WIth an employee to dISCUSS a matter whIch may lead to dIscIplIne Nor must there be tIme provIded for an employee and hIS umon representatIve 11 to meet. Nor must detaIls be provIded to the gnevor or the Umon. The Employer suggest that the Umon, In thIS matter IS attemptIng to expand the scope of ArtIcle 26 3 to Include these protectIOns and that the GSB has no JunsdIctIOn to alter and amend the collectIve agreement In that way The Employer further contends that the substantIve nght contaIned In ArtIcle 26 3 IS the nght to umon representatIOn. It submIts that It IS the nght to umon representatIOn that formed the basIs of the GSB decIsIOns cIted by the Umon. In contrast, the nght to advance notIce, It submIts, has been found to be a procedural, not a substantIve nght. In support, It cItes to Re Cambridge TOYf,el Corp and A.C T W U [1988] 66 O.R. (2d) 793 (Ont. DIV Ct.) Re Williams et al. and Treasury Board (Post Office Department) (1979) 22 L.AC (2d) 94 (Abbott) Re Royal Ott~a, Re Toronto Hospital (General Division) and Ontario Nurses Association (1996) 52 LAC (4th) 1 (H.D.Brown) Re Espanola General Hospital and Canadian Union of Public Employees (1991),21 L.AC (4th) 211 (Joyce) AccordIngly It asserts that If ArtIcle 263 was breached by faIlIng to gIve the gnevor advance notIce of the purpose of the meetIng, It should not render the dIscIplIne void ab initio The Employer also submIts that In the absence of any demonstratIOn of preJudIce, a techmcal vIOlatIOn of ArtIcle 263 should not render the dIscIplIne null and vOId. In thIS case, the gnevor had the benefit of Sousa's assIstance and was well aware that InteractIng wIth cases mIght lead to dIscIplIne In support, the Employer cItes to OLBEU (Massa) and LCBO GSB No 2033/97 et al (Abramsky) where a NOm Issued to an employee In 12 the absence of a umon representatIve was rescInded and then reIssued by mall, no vIOlatIOn of ArtIcle 26 3 was found SInce the error was corrected. FInally the Employer submIts that the gnevor and the Umon waived theIr nghts under ArtIcle 26 3 by proceedIng wIth the meetIng on October 31 2001 and then faIlIng to raise the matter at any tIme untIl a month before the arbItratIOn heanng. The Employer submIts that there was no excuse for the Umon's gross delay In raiSIng thIS Issue and that It should not be allowed to "lay In the weeds" on thIS matter It contends that the Umon's prelImInary motIOn should be dIsmIssed on the basIs of delay Further the Employer contends that should the Board conclude that the gnevor's nghts to advance notIce were vIOlated, It submIts that VOIdIng the dIscIplIne IS a dIsproportIOnal remedy Instead, It submIts that the InformatIOn obtaIned from the October 31 2001 meetIng be excluded from the record. Decision 1 Is the motion to dismiss timely? In OBLEU (La Hay) supra, the GSB addressed the Issue of the tImelIness of the Umon's assertIOn of a vIOlatIOn of ArtIcle 26 3 In that case, the gnevor was dIscharged on June 23 1994 and a gnevance contestIng the dIscharge was filed on June 28 1994 The Umon notIfied the Employer of ItS IntentIOn to raise the vIOlatIOn of artIcle 26 3 on May 25 1995 almost a year later and only ten days before the June 5 1995 heanng. The Board ruled, at p 54 "BeIng substantIve In nature It dId not matter that the Employer was only notIfied of the Umon's IntentIOn to raise the vIOlatIOn of art. 263 on 13 May 25 1995" It also ruled at p 54 CItIng Alcan Wire and Cable unreported (Tacon, July 20 1989) at p 10 that the wntten gnevance was broad enough to encompass dIscIplIne whIch was Improper WIth respect to the procedure followed as well as the ments of the decIsIOn to termInate Instead, the Umon's delay In notIfYIng the Employer of ItS IntentIOn to rely on the faIlure to comply wIth ArtIcle 26 3 went to remedy Rather than award the gnevor compensatIOn from the date of hIS dIscharge, the Board awarded compensatIOn "only from the date of notIficatIOn (May 25 1995)" (p 58) The Board's holdIng on thIS Issue In La Hay was followed In OLBEU (Pedneault) supra. In that case, the Employer was notIfied of the Umon's IntentIOn to raise the Issue of ArtIcle 26 3 sometIme In May of 1999 some SIX months after the date of dIscharge The Board stated at p 25 "ThIS matter was dIscussed thoroughly by Vice Chair Gorsky In LaHay and I do not Intend to stray from that decIsIOn. AccordIngly the gnevor IS to be reInstated to hIS posItIOn (includIng locatIOn) as of the date the Umon notIfied the Employer of ItS IntentIOn to raise thIS matter The gnevor IS entItled to full compensatIOn, benefits and semonty as of that date" These cases demonstrate that the Board has permItted the Umon to raise an obJectIOn based on artIcle 26 3 at a very late date because artIcle 26 3 provIdes a substantIve nght. Instead, the Board has addressed the tImelIness of the Umon's notIficatIOn to the Employer In terms of remedy As stated by Vice-Chair Bnggs In Pedneault - "[t]hIS 14 matter was dIscussed thoroughly by Vice-Chair Gorsky In LaHay and I do not Intend to stray from that decIsIOn." 2. Did the Employer violate Article 26.3? A. Was the October 31, 2001 meeting "for the purpose of discussing a matter which may result in disciplinary action"? The eVIdence clearly reveals that the October 31 2001 was part of the Employer's InVestIgatIOn Into the events of October 22, 2001 At the tIme the gnevor was reqUIred to attend the meetIng, the Employer had a vIdeotape of hIm removIng a gIft flask from a case of Crown Royal lIquor They suspected hIm of stealIng that gIft flask, a matter that certaInly could lead to dIscIplInary actIOn. If there were any doubt about that, the postIng of October 26 2001 states that "anyone caught remOVIng any LCBO property whether It be alcoholIc In nature or not, from the warehouse, wIll be ImmedIately termInated and all eVIdence turned over to the Durham RegIOnal PolIce for further actIOn." On the eVIdence before me, the conclusIOn IS Inescapable that management Intended theIr meetIng wIth the gnevor to be an opportumty to further theIr InVestIgatIOn, by questIOmng hIm about hIS InteractIOn wIth cases, generally as well as specIfically about October 22, 2001 The questIOns asked were to obtaIn InfOrmatIOn whIch they would consIder - and, In fact, dId consIder - In decIdIng whether dIscIplInary actIOn should be taken agaInst hIm The dIscharge letter of November 13 2001 leaves no doubt that the Employer relIed on the gnevor's statements of October 31 2001 to conclude that he should be termInated. 15 Under the facts of thIS case, I conclude that the meetIng of October 31 2001 was "for the purpose of dISCUSSIng a matter whIch may result In dIscIplInary actIOn beIng taken agaInst the employee " wIthIn the meamng of ArtIcle 26 3 of the collectIve agreement. B. Did the Employer, at the outset, inform the grievor of the purpose of the meeting? AccordIng to Nell Lemhan, DIrector PIzzalato told the gnevor that the purpose of the meetIng was to ask hIm some questIOns about hIS InteractIOn wIth cases and to address the concerns that he had earlIer raised wIth management about the October 26th postIng. They also told hIm that the Umon representatIve was there for hIS "protectIOn." In the Employer's submIssIOn, It was ImplIcIt In these statements that the gnevor was beIng questIOned about a matter whIch may result In dIscIplInary actIOn, and the gnevor should have known that. Respectfully for a number of reasons, I cannot agree under the specIfic facts of thIS case FIrst, the meamng of the words "Interact wIth cases" IS not clear on theIr face It was defined, at the heanng by Mr Lemhan to mean, "opemng a case and takIng stuff out" of them But there IS no eVIdence that those words, whIch was used at the meetIng accordIng to Mr Lemhan's notes and testImony were ever defined at the meetIng Itself ThIS IS partIcularly Important gIven that EnglIsh IS not the gnevor's first language Second, the gnevor testIfied that although he knew he was beIng asked questIOns about opemng cases, he was not aware that the purpose of the meetIng was to dISCUSS a matter whIch mIght lead to dIscIplIne He thought the meetIng was to address the 16 concerns that he had earlIer brought to management's attentIOn In lIght of the October 26th memo and to clanfy when he could or could not open cases Under the facts of thIS case, thIS was a reasonable understandIng. ThIrd, even assumIng that the gnevor should have understood that questIOns about "InteractIng" wIth cases mIght lead to dIscIplInary actIOn (a conclusIOn whIch I do not make) thIS would not satIsfy ArtIcle 26 3 Nor was It sufficIent for the Employer to tell the gnevor that the Umon representatIve was there for hIS "protectIOn." ArtIcle 263 reqUIres the Employer to advIse an employee that the purpose of the meetIng IS to dISCUSS a matter whIch may result In dIscIplInary actIOn. The oblIgatIOn IS on the Employer to advIse the employee of the purpose of the meetIng. It IS not the employee's oblIgatIOn to surmIse, guess or Infer the Employer's purpose As stated by the Board In Pedneault, supra, at p 22 "hIS [the gnevor's] OpInIOnS as to what mIght occur at the meetIng dId not relIeve the Employer of ItS oblIgatIOns under artIcle 26 3 " At no tIme eIther before, or at the outset of the meetIng, dId management reveal to the gnevor that the purpose of the meetIng was to dISCUSS a matter whIch may result In dIscIplInary actIOn beIng taken agaInst hIm Although I agree wIth the Employer that the specIfics need not be revealed In advance, nor must the Employer first Issue a NOID before meetIng wIth an employee, but the purpose of the meetIng - that It IS to dISCUSS a matter whIch may lead to dIscIplIne - must be dIsclosed. ThIS was not done on October 31 2001 17 The purpose of the reqUIrement of advance notIce was explaIned In Re Williams et al. and Treasury Board (Post Office Department) supra. In that case, the collectIve agreement provIded that the "Employer agrees to notIfy an employee twenty-four (24) hours In advance of any dIscIplInary IntervIew or dIscIplInary counselIng seSSIOn and to IndIcate the purpose of the meetIng, " The adJudIcator ruled, at p 3 [I]t must have been the IntentIOn of the partIes to the agreement that the provIsIOn for advance notIce serve some purpose That purpose must have been to permIt the employee knowIng that the purpose of the forthcomIng IntervIew related to hIS own alleged mIsconduct, to consIder whatever defences or excuses mIght be avaIlable to hIm. As well, the advance warmng would permIt the employee to avaIl hImself of the nght secured to hIm by cl 10 06 namely to arrange to have a umon representatIve accompany hIm to the IntervIew In thIS case, by not adVISIng the gnevor of the purpose of the meetIng, It placed the gnevor In a vulnerable posItIOn. He was asked and answered questIOns not knowIng that hIS answers mIght lead to dIscIplInary actIOn - exactly the type of sItuatIOn whIch ArtIcle 26 3 was desIgned to protect agaInst. Further thIS sIgmficantly preJudIced the gnevor His statements at the October 31 2001 meetIng were used to support the Employer's decIsIOn to dIscharge hIm. C. Is the requirement of advance notice of the purpose of the meeting a procedural or substantive right? After carefully reVIeWIng the cases cIted by the partIes, I conclude that the reqUIrement of advance notIce of the purpose of the meetIng under ArtIcle 263 IS a substantIve nght. The GSB's Junsprudence concernIng ArtIcle 263 - whIch governs these partIes and the InterpretatIOn of thIS collectIve agreement - has umformly held that ArtIcle 26 3 In ItS entIrety creates substantIve nghts Although the cases have pnmanly 18 focussed on the absence of umon representatIOn, they have Included both aspects of ArtIcle 26 3 - both the nght to advance notIce of the purpose of the meetIng and the nght to umon representatIOn. In LaHay supra, the Board held, at p 51-52, as follows Art. 263 creates a substantIve nght whIch can only be waived by the employee Involved. That nght IS to make the affected employee" aware of the purpose of the meetIng and hIs/her nght to Umon representatIOn In advance of the meetIng." The Board further ruled, a p 53 "In thIS case, the Gnevor was not made aware of the purpose of the meetIng at the outset, nor was he Informed of hIS nght to umon representatIOn. " Thus, both aspects of ArtIcle 26 3 were vIOlated. Both were held to be substantIve nghts That the nght to advance notIce of the purpose of the meetIng IS a substantIve nght under ArtIcle 26 3 IS even more clearly seen In OBLEU (Franssen) supra In that case, the manager handed SIX NOIDs personally to the gnevor whIch he then read and made comments upon. The Board held that thIS breached ArtIcle 26 3 The Vice-Chair determIned at p 8 that "when [the manager] elected to present the NOIDS personally to the gnevor he ImtIated a meetIng to dISCUSS matters that not only mIght lead to dIscIplIne but, In fact, were destIned to result In dIscIplIne, gIven the nature of the allegatIOns" The Board further noted that the gnevor "was not advIsed In advance of the purpose of the meetIng, nor was he advIsed that he could have a Umon representatIve assIst hIm." (p 8) 19 In Franssen the Employer also called the gnevor at home and requested that he attend the store as soon as possIble but was not told the purpose of the meetIng. At the meetIng, he was agaIn handed an envelope contaInIng five addItIOnal NOIDS There was no dIscussIOn and the gnevor was told to read them later and to respond In wntIng. The Board held that thIS meetIng, as well, vIOlated ArtIcle 26 3 The Board ruled at p 9 (emphasIs In ongInal) The gnevor was summoned to a meetIng for the sole purpose of beIng handed addItIOnal NOIDS AgaIn he was not advIsed before the meetIng of the purpose of the meetIng or of hIS nght to Umon representatIOn. Even though the NOmS were In an envelope and there was no dIscussIOn of the allegatIOns themselves, the gnevor was once agaIn placed In the vulnerable posItIOn of beIng handed notIces of Intended dIscIplIne wIthout regard to hIS nghts under the collectIve agreement. ArtIcle 26 3 IS very broadly worded. Any dIscussIOn wIth an employee that might lead to dIscIplIne IS subJect to the reqUIrement that an employee be advIsed In advance of the meetIng and the purpose and that he/she IS entItled to Umon representatIOn. The GSB case law In my VIew IS very clear ArtIcle 263 creates a substantIve nght In an employee who IS reqUIred to attend a meetIng for the purpose of dISCUSSIng a matter whIch may result In dIscIplInary actIOn, to "be made aware of the purpose of the meetIng and hIs/her nght to Umon representatIOn In advance of the meetIng." ArtI cl e 26 3 does not sImply provIde the nght to umon representatIOn at such a meetIng. It Includes the nght to advance notIce of the purpose of the meetIng as well Although a number of the cases supplIed by the Employer have reached a contrary result on thIS Issue, It IS the Board's decIsIOns, InterpretIng thIS provIsIOn In the partIes' collectIve agreement, whIch controls thIS dIspute 20 In my VIew the Employer vIOlated the gnevor's nght to advance notIce of the purpose of the meetIng under ArtIcle 26 3 when It met WIth hIm on October 31 2001 I further conclude that the presence of Umon RepresentatIve Sousa at that meetIng does not alter thIS result. There are two aspects to ArtIcle 26 3 a notIce aspect (to be advIsed of the purpose of the meetIng and the nght to umon representatIOn) and the nght to umon representatIOn Itself In thIS case, the Employer vIOlated the notIce aspect, and It IS Irrelevant whether or not the nght to umon representatIOn was satIsfied. See Pedneault, supra at p 23 (dIStIngUIShIng between the Employer's oblIgatIOn to Inform the gnevor of hIS nght to a representatIve, and the faIlure to provIde that representatIOn) Further under the facts of thIS case, It IS not at all clear that the gnevor's nght to umon representatIOn was fully met because of the Employer's vIOlatIOn of the gnevor's nght to be advIsed of the purpose of the meetIng. Without knowIng the purpose of the meetIng, the gnevor dId not fully understand why Mr Sousa was there and could not make full use of hIS presence Nor wIthout clearly understandIng the purpose of the meetIng, could Mr Sousa fully perform hIS functIOn as umon representatIve D Did the Grievor waive his rights under Article 26.3? I conclude that the gnevor dId not Waive hIS nghts under ArtIcle 26 3 In LaHay the Board concluded at p 51 that "ArtIcle 26 3 creates a substantIve nght whIch can only be waived by the employee Involved." There IS no eVIdence that the gnevor understood hIS nghts under ArtIcle 263 or that he waived them Nor does hIS partIcIpatIOn In the October 31 2001 meetIng constItute a Waiver As held In Pedneault, supra at p 22 21 The gnevor was mstructed by hIS dIstnct manager to attend at a meetmg. It was not an mVItatIOn that the gnevor could refuse at hIS leIsure He was expected to attend and dId. Therefore, hIS mere partIcIpatIOn m the meetmg cannot be held agamst hIm. Remedy The remedy for a vIOlatIOn of ArtIcle 26 3 as set out m all of the GSB cases cIted by the Umon IS to declare the dIscIplIne VOId ab initio LeHay supra Franssen, supra Pedneault, supra. ThIS IS because the protectIOns afforded to employees under ArtIcle 26 3 are substantIve nghts, whIch must be stnctly applIed. The faIlure of the Employer to grant these nghts renders the dIscIplIne Imposed vOId ab initio The Employer suggests that a less severe remedy should be applIed, specIfically that the Employer be precluded from relymg on the meetmg of October 31 2001 WhIle I can understand why the Employer VIews vOIdmg the dIscIplIne as a harsh remedy It IS a remedy well establIshed m the case law Further the meetmg of October 31 2001 cannot be separated from the dIscharge of November 13 2001 As explamed in LaHay supra at p 53-54 There IS a seamless connectIOn between the meetmg of June 13 1994 the Gnevor's bemg suspended on that date (ExhIbIt 4) and hIS bemg termmated on June 23 1994 (ExhIbIt 6) It IS artIficIal to arbItranly dIVIde the process whereby a meetmg was held on June 13 to dISCUSS a matter whIch mIght result m dIscIplInary actIOn bemg taken agamst the Gnevor and the events followmg whIch were mextncably assocIated wIth It The events of the meetmg of June 13th the suspenSIOn Imposed, and the dIscharge are so mextncably lInked so as to tamt not only the suspenSIOn but the dIscharge 22 In thIS case, gIven the clear relIance on the statements made by the gnevor at the meetmg on October 31 2001 to support the dIscharge, It would be hIghly artIficIal to dIVIde that meetmg from the dIscharge whIch followed. Accordmgly I conclude that the dIscharge Imposed on November 13 2001 IS VOId ab initio As per LaHay supra, and Pedneault, supra, the gnevor IS to be rem stated as of February 15 2002, the date that the Umon advIsed the Employer of ItS mtentIOn to rely on ArtIcle 26 3 wIth full compensatIOn, semonty and benefits as of that date I shall rem am seIzed m the event there are any dIfficultIes Implementmg thIS decIsIOn. Dated at Toronto thIS 28th day of March, 2002 ~ ) H I 1brmt6J~~ ~..~ 'v RandI H. Abramsky Vice-Chair