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HomeMy WebLinkAbout2005-2180.Arthur.06-03-30 Decision Crown Employees Commission de Nj 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# 2005-2180 UNION# OLB472/05 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN Ontano LIqUor Boards Employees' Umon (Arthur) Union - and - The Crown In RIght of Ontano (LIqUor Control Board of Ontano) Employer BEFORE Barry Stephens Vice-Chair FOR THE UNION Larry SteInberg Koskie Minsky LLP BarrIsters and SOlICItorS FOR THE EMPLOYER Gordon FItzgerald Counsel LIqUor Control Board of Ontano HEARING February 6 2006 2 DeCISIon INTRODUCTION The gnevor IS an employee workIng In London, Ontano His gnevance concerns a four-day suspenSIOn. ThIS decIsIOn deals wIth the umon's prelImInary obJectIOn that the dIscIplIne IS VOId ab initio I e rendered InvalId, as a result of the faIlure of the employer to provIde the gnevor wIth hIS nghts to umon representatIOn and advance notIce of a dIscIplInary meetIng, as set out In Art. 26 3 of the collectIve agreement as follows An employee who IS reqUIred to attend a meetIng for the purpose of dISCUSSIng a matter whIch may result In dIscIplInary actIOn beIng taken agaInst the employee shall be made aware of the purpose of the meetIng and hIs/her 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 partIes submItted an agreed statement of facts for the purpose of thIS prelImInary obJectIOn The Gnevor receIved a 4-day suspensIOn as a result of an altercatIOn between hImself and a co-worker (the complaInant) In whIch the Gnevor IS alleged to have pushed the complaInant Into some metal rackIng. The alleged IncIdent occurred at approxImately 5 pm on June 22, 2005 and was ImmedIately reported by the complaInant to Bnan Munroe, Afternoon ShIft SupervIsor Mr Munro ImmedIately obtaIned wntten statements from the complaInant and two wItnesses, Mike Wilson and Ted Proctor The complaInant wanted to pursue cnmInal charges agaInst the Gnevor and therefore, after Mr Munroe had obtaIned the above-noted statements, the complaInant called the polIce to the facIlIty A PolIce office attended at the facIlIty at approxImately 6 30 pm The officer first met wIth the complaInant. Mr Munroe was In the room dunng thIS meetIng. After fimshIng wIth the complaInant, the officer asked Mr Munroe to summon the Gnevor so that the officer could speak wIth hIm. Mr Munroe dId so and Mr Munro also remaIned In the room whIle the office met wIth the Gnevor The Gnevor was not notIfied In advance of the meetIng or ItS purpose and there was not umon representatIve at the meetIng. He was also not advIsed that he had a nght to umon representatIOn. Rob Cote the General Manager of the facIlIty made the decIsIOn to Impose the 4- day suspenSIOn on the Gnevor On June 25 2005 Mr Cote receIved a wntten statement from the complaInant. In makIng hIS decIsIOn to suspend the Gnevor for 4 days, Mr Cote relIed on that statement and the other three statements 3 referred to above (i e those obtaIned ImmedIately after the IncIdent from the complaInant, Mr Wilson and Mr Proctor) The umon asserts that the meetIng between the gnevor and the polIce officer wIth Mr Munroe present was covered by Art. 26 3 The employer responds that Art. 26 3 does not apply gIven the fact that the meetIng was part of a polIce InVestIgatIOn, and not related to dIscIplIne In the alternatIve, the employer argues that, even If there was a breach, the appropnate remedy was not to InvalIdate the dIscIplIne, but that a declaratIOn of breach would be sufficIent. The only sIgmficant fact that was not agreed by the partIes was whether management representatIves dIscussed or In any way relIed upon the dIscussIOns that took place dunng the meetIng wIth the polIce officer Both Mr Munroe and Mr Cote testIfied that there was no dIscussIOn between them about what was said dunng the meetIng, except that Mr Munroe reported to Mr Cote that the polIce were not preSSIng charges The umon suggested thIS was not credIble For the reasons set out below It IS my vIew that It IS unnecessary for me to resolve thIS conflIct. UNION SUBMISSIONS The umon argues that Art. 263 has been consIstently Interpreted as provIdIng substantIve nghts, and that the Junsprudence has gIven the clause a large and lIberal InterpretatIOn. The cases all support the general proposItIOn that In any face-to-face encounter between a representatIve of the employer and an employee regardIng any matter whIch may result In dIscIplIne, the nghts In Art. 26 3 are tnggered, and the CIrcumstances of the meetIng In questIOn meet those reqUIrements Umon counsel emphasIzed that none of the cases turn on the umon demonstratIng actual preJudIce to the employee but that the mere potentIal that an employee mIght be placed In a 4 posItIOn of makIng a statement agaInst hIS own Interest was suffiCIent to tngger the protectIOn. As a result the umon submItted that the dIscIplIne should be rendered vOId ab initio The umon relIed on the folloWIng authontIes OLBEU (Pedneault) and LCBO (2000) GSB No 1568/98 (Bnggs) OLBEU (Franssen) and LCBO (1997) GSB No 1636/96 (Mikus) OLBEU (Xanthopoulos) and LCBO (2003) GSB No 1372/01 (Abramsky) OLBEU (Simpson) and LCBO (2002) GSB No 1469/01 (DIssanayake) ATU (Blake) and Toronto Area Transit Operating Authority(1988) GSB No 1276/87 (ShIme) and AMAPCEO (Shiv Sud) and Ministry of Environment (2001) GSB No 0888/00 (Abramsky) EMPLOYER SUBMISSIONS The employer argues that the eVIdence dIscloses that the meetIng was ImtIated by the polIce, not by the employer and that Mr Munroe dId not partIcIpate In the meetIng In any meamngful way He dId not take any notes, nor dId he ask any questIOns He testIfied that he remaIned at the meetIng at the request of the officer It was clear that the polIce InVestIgatIOn and the LCBO InVestIgatIOn were two dIfferent matters, and It stands to reason that Mr Munroe would not be Interested In what happened dunng the meetIng wIth the InVestIgatIng officer The same can be said for Mr Cote, who was not aware of anythIng that happened at the meetIng, aSIde from the fact that cnmInal charges would not be laid, and he made hIS decIsIOn based solely on the wntten statements provIded by the employees The employer summanzed ItS posItIOn by statIng that a meetIng ImtIated and run by a thIrd party does not attract the protectIOn of Art. 26 3 and that thIS conclusIOn IS not altered by the fact that an employer representatIve happens to be present as a non-actIve bystander dunng the meetIng. 5 In the alternatIve, the employer argued that, If Art. 26 3 dId apply to the meetIng, gIven that the meetIng played no role In the dIscIplIne, It can be "carved out" of the sequence of events In other words, gIven that there IS no "nexus" between the meetIng and the dIscIplIne, and there has been no preJudIce to the gnevor the breach IS a "mere techmcalIty" There IS nothIng In the collectIve agreement that reqUIres the dIscIplIne to be rendered vOId ab initio and a declaratIOn of breach would be a more appropnate remedy The employer argued that the remedy should be weIghed agaInst the Importance of addressIng the ments of the case, whIch Involves the senous Issue of vIOlence In the workplace, and submItted a number of authontIes whIch stand for the proposItIOn that arbItrators should not automatIcally InvalIdate dIscIplIne In these CIrcumstances The employer addressed the GSB Junsprudence relIed upon by the umon, and argued that the cases do not support an automatIc response of InvalIdatIng the dIscIplIne Rather counsel submItted that the cases all reqUIre that there must be a clear relatIOnshIp between the Impugned meetIng and the dIscIplIne Imposed, what IS referred to as a "seamless connectIOn" In one case, before the dIscIplIne IS rendered vOId ab initio The employer relIed on the folloWIng authontIes Re Miracle Food Mart (1985) 19 LAC (3d) 65 (Brunner) R. v Collins [1987] 1 S C.R. 265 Re Ott([l1,a Board of Education (1988) 2 L.AC (4th) 27 (Bendel) UFCW V Canada Safeyt,ay [1989] AI No 142 (Alta. C.A) Re ProcOl' (1991) 19 LAC (4th) 145 (DevlIn) Re Sunnybrook Hospital (1993) 36 L.AC (4th) 129 (LangIlle) White v Canada Safeyt,ay Ltd [1994] AI No 725 (Alta. C A) Purolator Courier v PSAC [1998] B C.J No 336 (B C S C) Canada Safeyt,ay v R. WD S. U (2000) 196 D.L.R. (4th) 518 (Sask. C.A) OLBEU (Bell) and LCBO 2002, GSB No 683/01 (DIssanayake) 6 DECISION After careful consIderatIOn of the facts and the submIssIOns of the partIes, It IS my VIew that the gnevor should have been afforded the protectIOns under Art. 263 and, as a result, the dIscIplIne IS VOId ab initio The eVIdence IS clear that the gnevor was not provIded wIth any advance notIce of the purpose of the meetIng or offered the optIOn of attendIng wIth a umon representatIve Thus, the only Issues before me are, was the meetIng covered by Art. 26 3 and, If so should the faIlure to provIde the Art. 263 protectIOns lead to a determInatIOn that the dIscIplIne IS rendered vOId ab initio I am not persuaded that It makes any dIfference If the meetIng was ImtIated or controlled by a thIrd party as asserted by the employer It IS clear from the pnor GSB decIsIOns regardIng Art. 26 3 that It IS not necessary for the gnevor to actually Incur preJudIce as a result of a meetIng Both In Franssen and Simpson the vIce-chairs held that It was the IntentIOn of the language to ensure that an employee IS not put In a vulnerable posItIOn where there IS even the potential that Inculpatory statements or other statements agaInst Interest may be elIcIted or volunteered. In the CIrcumstances of thIS case, Mr Munroe was present throughout the meetIng at whIch a matter was beIng dIscussed that could, and eventually dId, lead to dIscIplIne for the gnevor GIven hIS presence at the meetIng, Mr Munroe was In a posItIOn to gather whatever InformatIOn was avaIlable from the statements beIng made by the gnevor Whether he actually obtaIned any admIssIOns, demals or confirmatIOns of InformatIOn IS not at Issue There was a potentIal that such InformatIOn could have come from the meetIng, and that IS enough. There IS lIttle questIOn that the gnevor was, by the very presence of a management representatIve at the meetIng, In a vulnerable posItIOn. Indeed, the CIrcumstances he was In were more 'vulnerable' than those 7 faced by the gnevors In Franssen and Simpson where employees receIved hand-delIvered NOID's and no dIscussIOn took place Mr Arthur was exposed to the very harm the language of Art. 26 3 IS Intended to prevent, and once the potentIal for that harm IS proven, I fall to see the sIgmficance of who requested or conducted the meetIng. The employer argued that the umon must prove that there was a "seamless connectIOn" as It was described In Lahay or that the meetIng and the subsequent dIscIplIne must be "Inextncably as SOCI a ted" as stated In Pedneault In order for Art. 26 3 to apply I have gIven careful consIderatIOn to the vanous quotes relIed upon by the employer In thIS regard, and In my VIew It would not be appropnate to read too much Into them or to take them out of context. The quotes cIted all appear to descnbe the specIfic cIrcumstances of those cases, and/or respond to specIfic submIssIOns made by the employer I do not thInk I should Infer that the comments mean that, In order for a meetIng to be protected, It must form part of the formal InVestIgatIOn or dIscIplInary procedure conducted by the employer The facts of thIS case demonstrate how easy It would be to CIrcumvent the protectIOns of Art. 26 3 If one were to reach such a conclusIOn. In my VIew the language used by the partIes IS broad enough to capture the meetIng In questIOn. The meetIng was dIrectly related to the matter at hand, I e the altercatIOn between the gnevor and a fellow employee, and was attended by a management representatIve In my VIew that IS sufficIent to place It WIthIn the ambIt of the protectIOn of Art. 26 3 As a result, I conclude that the meetIng between the polIce officer Mr Munroe, and the gnevor was one that attracted the protectIOn of Art. 26 3 and I find that the employer faIled to extend the protectIOns of that provIsIOn to the gnevor by faIlIng to advIse hIm In advance about the purpose of the meetIng, and about hIS nght to have a umon representatIve attend wIth hIm. 8 TurnIng to the employer's alternatIve argument, I am not persuaded that a declaratIOn IS a suffiCIent remedy Pnor decIsIOns have been clear that Art. 26 3 IS a substantIve nght. I cannot conclude that the breach In thIS case was a "mere techmcalIty" as suggested by the employer The precedents are clear that the appropnate remedy for a breach of Art. 26 3 IS a declaratIOn that the dIscIplIne IS VOId ab initio The cases relIed upon by the employer reflect a logIcal and thoughtful approach to thIS Issue However even outsIde the GSB that approach has not found favour wIth a maJonty of arbItrators More Importantly as a Vice-Chair of the GSB I am bound to follow the precedents of the Board, and those precedents are consIstent WIth respect to the remedy for a breach of Art. 26 3 As a result, the four-day suspenSIOn Imposed on Mr Arthur for the IncIdent on June 22, 2005 IS VOId ab initio I remaIn seIzed to deal wIth any Issues related to the ImplementatIOn of thIS award. Dated at Toronto thIS 30th day of March, 2006