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HomeMy WebLinkAbout2004-4059.East.05-07-11 Decision Crown Employees Commission de ~~ Grievance Settlement reglement des griefs Board des employes de la Couronne ~-,... Suite 600 Bureau 600 Ontario 180 Dundas Sl. West 180 rue Dundas Ouest Toronto Ontario M5G 1Z8 Toronto (Ontario) M5G 1Z8 Tel. (416) 326-1388 Tel. (416) 326-1388 Fax (416) 326-1396 Telec. (416) 326-1396 GSB# 2004-4059 UNION# OLB078/05 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN Ontano LIqUor Boards Employees' Umon (East) Union - and - The Crown In RIght of Ontano (LIqUor Control Board of Ontano) Employer BEFORE Nimal V DIssanayake Vice-Chair FOR THE UNION Craig Flood Koskie Minsky LLP BarrIsters and SOlICItorS FOR THE EMPLOYER Alan Freedman Heenan BlaIkIe BarrIsters and SOlICItorS HEARING June 30 2005 2 Intenm DeCISIon The Board is seized with a discharge grlevance filed by Mr Leon East, whose employment as a warehouse worker at the Durham facility was terminated by the employer effective February 25, 2005 The union has taken the position inter alia, that the discharge was void ab initio because the employer contravened article 26 3, by meeting with the grievor on February 3, 2005 without union representation That article provides An employee who lS 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 meeting The employee shall be entitled to have a Union representative at such meeting provided this does not result in undue delay The union has moved that the article 26 3 issue be heard and determined as a preliminary matter, before hearing the merits of the grlevance The employer opposes the proposed bifurcation At the commencement of the hearing I commented to counsel that in a motion for bifurcation of this sort, the key considerations in my mind would be efficiency, whether the bifurcation would be dispositive of the grlevance and whether bifurcation would prejudice either of the parties Those 3 considerations are described by Vice-Chair Harris in Re stewart 1999/98 at para 8 In deciding whether to bifurcate proceedings the Board seeks to maximize efficiency in the hearing process If the early resolution of an issue may be dispositive of the matters before it, then bifurcation is a useful procedural tool, provided there is no unfairness to any party in following such a procedure Counsel for the union cited a number of prior GSB decisions to support his assertion that if a contravention of article 26 3 lS found, the necessary result lS that the discipline in question is declared void ab initio The employer did not dispute this assertion It suffices to note the observation made in Re Simpson, 1469/01 (Dissanayake) as follows It is now settled law that the rights conferred by article 26 3 are substantive, and not procedural and that as a result where there lS a breach of the provlslon, the resulting remedy is a declaration that the discipline is void ab initio See Re LaHay, 809/94 (Gorsky) , Re Pedneault, 1568/98 (Briggs) , Re Franssen, (supra) and Re Xanthopoulos, 1372/01 (Abramsky) Union counsel submitted that a hearing on the merits of the discharge grievance would be very complex and lengthy The union would lead evidence of a previous discharge of the grlevor 4 following which the grievor returned to work pursuant to a last chance agreement Subsequently a dispute arose whether the grievor had resigned This dispute was grieved and the grlevor obtained a decision from the GSB resulting in his return to work with compensation The union would be asserting that the discharge which is the subject of the instant grlevance lS a retaliation against the grlevor for heaving successfully grieved against the employer The union informed that the grievor had filed 3 other grievances, which the union would allege established a pattern of harassment and discrimination against the grlevor following his return to work The union would be moving that those three grievances be consolidated with the instant discharge grlevance In addition, the union stated that the employer had engaged an investigator to surreptitiously video tape the grievor's activities during off work hours, and the employer expects to introduce that evidence in support of the discharge The union would be arguing that the surveillance of the grlevor was not legitimate because the employer had no reasonable basis to initiate the surveillance, and the surveillance was done In an unreasonable manner The union intends to cross-examlne the investigator and urge the Board not to admit the videotape 5 evidence This issue would involve a significant volume of evidence and complex legal lssues Employer counsel did not dispute that the hearing on the merits of the grievance would be complex and lengthy In fact, his recitation of the employer's proposed evidence confirmed that fact However, the thrust of the employer's position was that bifurcating the article 26 3 issue would not result In gaining any efficiency but on the contrary would result In additional hearing time and duplication of evidence In short, the position was that, for the Board to determine the article 26 3 lssue the Board would have to hear the bulk of the evidence that would be adduced at a hearing on the merits Counsel stated that the issue under article 26 3 was whether the meeting on February 3, 2003 was "for the purpose of discussing a matter which may result in disciplinary action being taken against the employee" The employer would be submitting that that was not the purpose of the meeting in question The purpose of the meeting was to discuss the continuation of the grievor's restrictions and to lnqulre about the medical reassessment that had taken place around that time Counsel submitted that it was critical that the employer be allowed to place that meeting in its proper context Counsel 6 submitted that to understand the context, the Board needed to hear evidence to show that the meeting played no role in the investigation procedure the employer undertook To demonstrate that disconnect, evidence about the employer's investigation from start to finish is necessary This would include evidence about the nature of the grievor's lnJ ury, his representations about restrictions, what caused the employer to be SUSPlClOUS, the surveillance it initiated to verify those SUsplclons, what the video tape disclosed and the basis upon which the decision to discharge the grlevor was reached Counsel submitted that all of that evidence lS required to demonstrate that the February 3 meeting had no role to play in the investigation that led to the grievor's discharge On that basis, the employer submitted that the evidence relevant to the article 26 3 lssue lS inextricably interwoven with the evidence on the merits of the grlevance In addition, Counsel gave notice that in the event the Board finds a breach of article 26 3 and declares the discharge void ab initio In accordance with its jurisprudence, the employer would be taking the position that the grievor's remedy nevertheless should be restricted to monetary damages because the employment relationship had been irreparably destroyed This argument would require evidence that the grievor misrepresented on this 7 occasion also, which would necessarily involve evidence on the merits of the grlevance In support of its motion for bifurcation, the union referred me to the following authorities Re Board of Trustees of School District No 27 (Cariboo-Chilotin) , ( 1995) 46 LAC (4 tll) 385 (Kinzie) , Re Government of Province of British Columbia, ( 1995) 47 LAC (4th) 238 (Kinzie) , Re province of Nova Scotia, ( 1999) 83 LAC (4 tll) 218 (North) , Re Halifax Regional School Board, (2002 ) 116 LAC (4th) 412 (MacDonald) Employer counsel relied on Re City of Toronto (2004 ) 128 LAC (4 tll) 217 (Kirkwood) which he submitted was on all fours with the instant case In that case the collective agreement contained the following provision Whenever an employee lS requested to report for a disciplinary discussion with a superVlsor, prior to any disciplinary action being taken, such employee shall have the right of having a Steward or Local 79 Representative present at such meeting or, if neither are available, he/she shall have the right to the presence of an employee of his/her choice who lS on duty at his/her place of work at the time the discussion takes place The employer had terminated the grlevor for misrepresenting the . . . which he claimed he had received lnJurles, 8 a t work, for misrepresenting his inability to work, and for fraudulently obtaining benefits under the Workplace Safety and Insurance Act The union claimed that the employer's telephone contact with the grievor after the grievor's actions had been surveilled by a private investigator was a violation of the union representation clause, which the union claimed, rendered the discharge null and void The union took the position that the union representation issue should be bifurcated and dealt with as a preliminary issue The employer opposed the bifurcation Arbitrator Kirkwood noted that "a decision to bifurcate the hearing is dependent upon fairness to the parties, and the practicality and economy of time" She went on to hold In order to determine whether the telephone conversation violated the terms of the collective agreement it would be necessary to consider the context surrounding the telephone conversation to understand the nature of the discussion and purpose of the discussion, and its role in the decision- making process I therefore accept the employer counsel's submission that it would be necessary to hear all the employer's evidence relating to the investigation procedure, and how and when the decision-making process occurred to determine the preliminary matter This would involve not merely evidence relating to the contents of the telephone call, as submitted by union counsel I accept employer counsel's submissions that the evidence lS 9 necessary to decide this preliminary matter lS intertwined with the facts leading up to the discharge Further, it does not appear from the submissions of counsel that if such evidence could be separated from the evidence on the merits, there would be an appreciable savlngs of time as opposed to hearing the matter in its entirety It does not appear that the evidence on the preliminary question can be restricted to the preliminary issue to make it desirable to hear only the preliminary matter on the possibility that it will resolve the matter What lS clear from the case law is that the decision to bifurcate depends in each case, upon the considerations of practicality, economy and efficiency and fairness The decision must be made on the basis of the respective counsel's submissions as to what positions it would take on the union representation issue I agree with union counsel that article 26 3 is broader than the provision in Re City of Toronto Counsel submitted that in the present case, it would not be necessary for the union to establish that the employer intended to discuss any disciplinary issues at the February 3d meeting or that the employer actually took into account anything that occurred at that meeting in deciding to terminate the grlevor Nevertheless, counsel asserted also that the evidence will show that the February 3 meeting was a continuation of the employer's investigation He thus submitted that for the article 26 3 10 lssue, it was "key" that in January 2005 the employer had commenced a disciplinary investigation of the grlevor He submitted that the evidence will be clear that "the purpose of the meeting was to discuss a matter which may lead to discipline and that In fact it did lead to discipline " Counsel submitted that following the February 3rj meeting with no union representation, the employer convened a formal disciplinary meeting with union representation on February 23, 2005 The evidence will be that the employer directly relied upon and compared the statements the grievor had made on February 3rj with what was disclosed on the surveillance tapes in coming to the conclusion that the grievor had "lied", which led to the decision to discharge the grlevor Based on his opening statement and submissions on the motion to bifurcate, it lS clear that the union was asserting that there was a direct link between the February 3d meeting and the employer's disciplinary investigation of the grlevor, and further that the employer relied upon statements made by the grievor on February 3rj in determining that the grlevor was guilty of misrepresentation, which in turn led to his discharge I have determined that given that position of the union, the employer lS entitled to establish its contrary position that 11 there was a total disconnect between the February 3rj meeting and the disciplinary process by demonstrating what the total investigation consisted of While bifurcation would avoid dealing with certain issues such as the dispute as to the admissibility of the surveillance evidence, I have determined that in balancing the limited potential for gaining efficiency with the need for fairness, the overall considerations do not favour bifurcation in the particular circumstances of this case For the foregoing reasons the union's motion for bifurcation is denied The issue under article 26 3 will be dealt with together with all of the other lssues arising out of the grlevance and determined at the end of the hearing I remain seized of the grlevance for that purpose The parties may request the Registrar to schedule hearing dates for this matter Dated this 11th day of July, 2005 at Toronto, Ontario ~~ . . ,.... , .. .. ...... . . . , ~ . . .. 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