Loading...
HomeMy WebLinkAbout2022-1657.Moloney.23-11-17 Decision Crown Employees Grievance Settlement Board Suite 600 180 Dundas St. West Toronto, Ontario M5G 1Z8 Tel. (416) 326-1388 Commission de règlement des griefs des employés de la Couronne Bureau 600 180, rue Dundas Ouest Toronto (Ontario) M5G 1Z8 Tél. : (416) 326-1388 GSB# 2022-1657 UNION# 2022-0135-0014 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN Ontario Public Service Employees Union (Moloney) Union - and - The Crown in Right of Ontario (Ministry of the Solicitor General) Employer BEFORE Nimal Dissanayake Arbitrator FOR THE UNION Laura Johnson Ryder Wright Holmes Bryden Nam LLP Counsel FOR THE EMPLOYER Dimitrios Molos Treasury Board Secretariat Legal Services Branch Counsel HEARING October 30, 2023 -2 - Decision [1] The Board is seized with a termination grievance dated April 20, 2022, filed by Mr. Kyle Moloney (“grievor”), a Correctional Officer (“CO”) at the South West Detention Centre (“SWDC”) in Windsor, Ontario. The grievance form consists of the following: Statement of Grievance: I am grieving that the employer has terminated me without just cause. I further grieve that the employer has violated including, but not limited to, articles 2, 3, 9, and 21 of the collective agreement, violation of the Ontario Human Rights Code and any other pertinent articles, policies, procedures, and legislation that may apply. Settlement Desired: To be reinstated, letter of discipline be removed from all files. I be awarded full backpay, benefits, credits and seniority including reimbursement for lost overtime opportunities. Interest on these monies to be paid at the appropriate formular. Any other remedies that in the opinion of the arbitrator that will make me whole. [2] The employer’s decision to terminate the grievor’s employment followed an admission by the grievor that he engaged in the two following allegations of misconduct: (1) That on multiple days he submitted falsified covid test results, by resubmitting the result of one test he did by altering the date, rather than doing separate tests for each day he reports to work, as required by employer directives. (2) That on multiple occasions, he attended the workplace, without complying with employer directives issued to ensure the health and safety of everyone in the workplace. [3] At the hearing the Board was faced with a motion by the union to the effect that the Board should summarily declare that the disciplinary termination of the grievor -3 - is void ab initio on the ground that the employer had contravened the grievor’s rights under article 30.1 of the collective agreement. The provisions of article 30.1 relevant for this motion read: Where a supervisor or other employer representative intends to meet with an employee: (a) For disciplinary purposes; (b) To investigate matters which may result in disciplinary action; (c) For a counselling session with regard to unsatisfactory performance or behaviour; (d) For termination of employment; . . . the employee shall have the right to be accompanied by and represented by a union representative. The employer shall notify the employee of this right and advise the employee and the union of the time and place for the meeting. If no union representative is reasonably available to meet at the time established, the employer may set a meeting within the next twenty four (24) hours taking into consideration, to the extent possible, the union’s availability. [4] In response, the employer made two alternate arguments. First, that no meeting within the meaning of article 30.1 ever took place to trigger the grievor’s right to union representation. Second, that in any event the union’s attempt to raise article 30.1 in its particulars provided on September 13, 2022, some six months after the alleged meeting, is an improper expansion of the grievance filed on April 20, 2022. THE UNION EVIDENCE [5] The grievor was the union’s only witness. He testified that he worked a 12 hour shift on March 12, 2022, 7:00 p.m. to March 13 7:00 a.m. On March 12th he had no opportunity to check his email prior to the shift. He stated that shortly before his shift on March 12 Staff Sergeant Nenadovich called and asked him to come by to his office when the grievor had a moment. Mr. Nenadovich did not tell him -4 - the purpose, did not ask him to read his emails before coming, and did not say anything about union representation. The grievor testified that he immediately went to his office. Mr. Nenadovich confronted him with a photograph of a falsified covid test result. Mr. Nenadovich then showed him a list of dates and asked him whether he submitted falsified covid test results on those dates. He admitted that he did. Mr. Nenadovich asked the grievor to do an Occurrence Report (“OR”) and he went back to work. He testified that at no point during the brief meeting of less than 5 minutes did Mr. Nenadovich inform him that he had a right to have a union representative with him. He did not take a union representative because he had very little discipline in the past and never had the opportunity to use a union representative. [6] Union counsel asked what Mr. Nenadovich’s demeanor and attitude was during the meeting. The grievor replied, “He was very cavalier. The meeting didn’t seem to be serious enough for me to expect the discipline I got”. He also confirmed that Mr. Nenadovich did not advise that he had a right to consult a union representative before writing the OR. [7] The grievor testified that as soon as he returned from the meeting with Mr. Nenadovich, he wrote his OR addressed to Superintendent, Ms. Tanis Bukowski. In it he responded to the allegations put to him by Mr. Nenadovich at the meeting. He identified that the manager who had signed the OR was Mr. Nenadovich. He testified that if Mr. Nenadovich thought that his OR was inaccurate, he would have expected him to have asked him to correct it or write an addendum to the OR before signing it. He said that if Mr. Nenadovich had advised him before the meeting that he had a right to have a union representative at the meeting he -5 - would have taken his union representative because a union representative would have recognised that he would likely receive severe discipline. [8] Referring to an “addendum” to his OR the grievor had submitted on March 28, 2022, in which he wrote about his personal circumstances such as the loss of two friends, his depression and mental health struggles and alcohol addiction, counsel asked why he did not write about those in his original OR. The grievor replied that since he did not expect that there will be severe consequences on him, he did not feel there was a need to share such personal and confidential information. [9] In cross-examination by employer counsel, the grievor testified that the call from Mr. Nenadovich came shortly after his arrival at the workplace on March 12th. He said that he could not recall the exact words Mr. Nenadovich used. When asked for his best guess, he said “something like when you have a moment come to the staff Sergeant’s office please”. [10] The grievor agreed that when he reported to the staff sergeant’s office he told Mr. Nenadovich that he had not read his email. When counsel referred to the grievor’s testimony that Mr. Nenadovich showed him a photograph of a covid test result, the grievor replied “Yes, there was a photograph on his computer”. Asked if Mr. Nenadovich ran through several photographs, the grievor replied “He showed at least one. Then he gave me a list of dates and I admitted it”. He agreed that he admitted that he had been submitting falsified test results and added that he also apologised. When asked whether he would change his -6 - evidence if Mr. Nenadovich testifies that he did not show him any photographs, and that he did not even have any photographs to show. The grievor replied “no”. [11] The grievor confirmed his testimony in chief about Mr. Nenadovich asking him to respond; that he admitted and that he was asked to do an OR. As soon as he returned to his unit, he wrote his OR and within ten minutes returned a printed and signed OR to Mr. Nenadovich. Counsel reviewed the email Mr. Nenadovich had sent him and pointed out that the subject on it was “OR required” and it was copied to three other staff Sergeants at SWDC. The grievor agreed that if he had read that email before attending Mr. Nenadovich’s office, he would have known that this was a serious matter. Counsel put to the grievor that since Mr. Nenadovich in his email wanted him to submit his OR by the end of his shift, he had enough time to consult a union representative if he wanted to. The grievor agreed, but added that even then he would not have taken a union representative, since the email made no mention that he had a right to do so. He said that after he returned from the meeting, before writing the OR he attempted to verify whether the list of dates Mr. Nenadovich had given lined up with the dates he submitted the test results, and it was at that time he checked his emails and read Mr. Nenadovich’s email. [12] Counsel pointed out to the grievor that he had gone through the grievance process less than a year earlier for a disciplinary suspension he had received and that at that time he was accompanied by a union representative. The grievor disagreed, but when counsel put that the employer has a record that shows he did, he replied, “Oh yes. I recall. He was there”. Counsel suggested to the grievor -7 - that having gone through the process once, he was familiar with the grievance process. The grievor replied “Yes. A little. Not much familiarity”. [13] Counsel asked the grievor how he did not realize the seriousness of what he did, when at the time the covid pandemic was spreading, the workplace was a congregate setting and management had put in specific directives for greater health and safety protection. The grievor replied, “With what I was going through at the time, I didn’t appreciate anything. The truth is I shouldn’t even have been at work”. [14] Employer counsel asked whether the grievor believes that the five minute meeting with Mr. Nenadovich on March 12th was an “allegation meeting”. The grievor replied, “Yes. Because allegation’s were put to me, and I was asked to answer them”. Counsel put to the grievor that there were two allegation meetings held with respect to the allegations against him, and that for each meeting he received a letter setting out the allegations, a date, time, and place of the meeting and clearly stating that he had a right of union representation at the meeting. Also, those allegation meetings were not held before a single Staff Sergeant, and there was a note-taker. For the March 12th meeting in contrast, he received no similar letters, and the meeting was only with a Staff Sergeant. The grievor agreed, but reiterated that he still thinks it was an allegation meeting. The grievor replied, “It sounded like an allegation meeting. But now I see it didn’t have the proper logistics to be an allegation meeting”. [15] Counsel asked the grievor if he would change his testimony, if Mr. Nenadovich testifies that when he called him on March 12th, “he read out the content of the -8 - email he had sent”. The grievor replied “no”. Counsel asked the grievor whether he would change his testimony if Mr. Nenadovich testifies that he and the grievor had no conversation before the grievor wrote his OR; that the grievor visited his office only once on March 12th, and that was to deliver the OR; that he would not, and did not, put allegations to the grievor in any informal conversation, and that he did not ask the grievor to come to his office. The grievor replied that he will not change his testimony on any of the above. [16] When the grievor agreed that he did not see Mr. Nenadovich take down any notes during the conversation in his office on March 12th counsel asked whether the grievor did not find that odd, if that was an allegation meeting. He replied, “He was just asking me if I had done that, and I agreed. In my view he didn’t mean it to be a formal allegation meeting.” EMPLOYER EVIDENCE [17] Staff Sergeant Mr. Nenadovich adopted a will-say statement that had been tendered on consent and provided the following viva-voce testimony. Employer counsel asked him whether he called the grievor on March 12, 2022, around 7:00 p.m.. He replied, “I honestly can’t recall if I did or not”. Asked if he recalls asking the grievor to come to his office or mentioning the email he had sent. Mr. Nenadovich replied, “No. Because I don’t recall calling him in the first place.” He testified that he had photographs of the falsified covid test in his computer, but did not show any photographs to the grievor at any time. Counsel referred to the grievor’s evidence that he attended at his office after he had called him, and that at that time he showed a photograph of at least one of the falsified test results, -9 - put allegations to the grievor and asked him to respond and asked if that happened. Mr. Nenadovich replied “No. He came to my office once – to drop off the OR”. [18] Mr. Nenadovich’s will-say included the following information. At para. 14 he wrote, “I do not recall whether I did or did not call the grievor after sending the email, but in the past I have called correctional officers to confirm that they have received an email requesting an Occurrence Report. I may have done so on this day as well”. At para. 16 Mr. Nenadovich wrote that after the grievor dropped off his OR on March 12th, he read it, put the OR in a folder for the Superintendent Ms. Bukowski and that he did not discuss the OR with her. [19] In cross-examination, Mr. Nenadovich agreed that he had been a Staff Sergeant at SWDC since May 2021 and that in that role it was one of his duties to require ORs from COs, including ORs about incidents that may result in discipline. Counsel put to Mr. Nenadovich that the purpose of ORs relating to discipline matters is to gather information as part of the employer’s investigation as to whether discipline is appropriate. Mr. Nenadovich replied that in this case his superior simply asked him to get an OR from the grievor and did not say why he wanted an OR. [20] Counsel referred Mr. Nenadovich to his will-say which states that on March 12, 2022, at about 8:00 p.m., in a phone conversation Deputy Superintendent Mr. Brian Janissse asked him to get an OR from the grievor about the rapid antigen test results he had submitted. She asked whether Mr. Janisse explained what the concern about the test results was. Mr. Nenadovich replied, “Yes. That he -10 - appears to have used the same test result on multiple days”. Counsel put to him that if the grievor had done that it is misconduct contrary to policy which could give rise to discipline. Mr. Nenadovich agreed. [21] Mr. Nenadovich agreed that as Staff Sergeant he had oversight over other sergeants and COs in a supervisory role, and that in March 2022 he was in a supervisory capacity over the grievor. Counsel pointed out that in the email he sent to the grievor at 6:48 p.m. on March 12th, he set out the allegation that it appears he submitted the same covid test result for multiple days, and directed him to provide an OR explaining why he did that, and put to Mr. Nenadovich that the purpose of the OR was to gather information about that alleged misconduct. He agreed. Mr. Nenadovich also agreed that his email that morning had no mention of the right to union representation, that he does not know when the grievor read that email, and that he did not inform any union official about the allegations against the grievor or that he the grievor had been asked to provide an OR explaining his actions. [22] Counsel put to Mr. Nenadovich the grievor’s evidence that he called him shortly before his 7:00 p.m. shift began on March 12 – and put, “you don’t remember that, but it could’ve happened?” Mr. Nenadovich replied “yes”, and explained that in the past after sending an email he had followed up by calling the employee to make sure he had received and read the email. Counsel put that this call to the grievor was over a year ago and therefore, Mr. Nenadovich cannot recall making the call or what he may have said during the call. He agreed. Counsel asked, “So you can’t remember whether you asked him to come your office when he has a moment?” Mr. Nenadovich’s response was, “I recall that he came to my office -11 - only once – to give the OR”. He agreed that even at that time he did not inform the grievor of the right to union representation. [23] Mr. Nenadovich insisted under further cross-examination that the grievor did not attend his office and have the interaction with him he had described in his evidence. Mr. Nenadovich agreed that he had responsibility to inform COs of allegations and to request ORs about those, and that this happened frequently. Counsel put to Mr. Nenadovich that, therefore, this call he made one year ago will not stand out for him, and he could have forgotten that call. Mr. Nenadovich replied, “All I can say is I am 99.9 percent certain he came to my office only once and that was to give his OR”. He said that he disputes that this alleged meeting happened, and that the only time he put the allegations to the grievor was in his email. [24] Mr. Nenadovich agreed that the grievor submitted his OR the same day it was requested, March 12th, and that he read it and signed it. Counsel referred to that OR and pointed out that in it the grievor wrote that Mr. Nenadovich called him and asked him to come to his office for a meeting, that when he attended Mr. Nenadovich informed him that it was apparent that he had changed dates in a prior covid test result, and he admitted doing that. Counsel put to Mr. Nenadovich, “That suggests that the meeting happened?” Mr. Nenadovich replied, “Yes the OR says that”. [25] Counsel put to Mr. Nenadovich that if the meeting described in the OR did not happen he would not have signed it, but would have asked the grievor to correct it or write an addendum to his original OR. Mr. Nenadovich replied, “I thought he -12 - was thinking about meeting with me when he came to drop off the OR”. He added that in any event he wouldn’t ask the grievor for an addendum or ask him to correct his OR because he was not responsible for “actioning the OR”. Counsel put to Mr. Nenadovich again, “surely you won’t sign an OR which is inaccurate and pass it on to the Superintendent for actioning. Mr. Nenadovich’s response was, “I thought he meant the meeting when he came with the OR”. He pointed out that while the OR states that he called and asked the grievor to come, it does not state that he came to his office at that time. [26] In his re-examination, employer counsel asked Mr. Nenadovich whether requesting an OR about allegations to an employee is the same as putting allegations to the employee. Mr. Nenadovich replied that when requesting an OR he had to inform the grievor what the required OR was about and give him the context. Therefore, he told the grievor that the OR requested was about what appears to be the grievor submitting falsified Covid test results. [27] Superintendent Tanis Bukowski filed a will-say declaration on consent. The union did not cross-examine Ms. Bukowski on its content. She did not provide any viva voce evidence. The following in her will-say is relevant to the instant motion. Ms. Bukowski states that prior to receiving the union’s particulars for the grievance in September 2022, she did not know how the grievor came to submit his OR on March 12, 2022, or that there was an allegation by the union that the employer had breached article 30.1. The union had not alleged that breach even when it requested that the Formal Resolution Stage of the grievance procedure be waived. -13 - [28] Ms. Bukowski also states that she made the decision to terminate the grievor in consultation with various human resources partners, and sent to the grievor the letter of termination dated April 30, 2022. That letter noted that at an allegation meeting where the grievor had a union representative he admitted to both allegations put to him. She wrote, “I found the grievor’s explanation that his personal circumstances and complacency led him to falsify his test results to be unsatisfactory”. She also wrote: “Because I was unaware of any alleged conversation between Staff Sergeant Nenadovich and the grievor on March 12, I did not consider it”. She considered the OR dated March 12, and addendum dated March 28, 2022 the grievor had submitted which explained his personal circumstances and his admission at the allegation meeting. She wrote that “most importantly” she considered the photographs the employer had of the test results with altered dates the grievor had provided to the employer between February 23 and March 11 of 2022, and the grievor’s past discipline record. DID A MEETING WITHIN THE MEANING OF ARTICLE 30.1 TAKE PLACE ? UNION SUBMISSIONS [29] Union counsel reviewed the relevant parts of article 30.1 and the rights and obligations under it. She submitted that it is undisputed that the employer did not comply with any of the rights when Mr. Nenadovich met with the grievor on March 12, 2022, in his office. The denial of those rights significantly prejudiced the grievor. She submitted that in the circumstances the union urges the Board to find that the disciplinary termination of the grievor was void ab initio. -14 - [30] Union counsel reviewed the grievor’s testimony that Mr. Nenadovich called him shortly before his shift started on March 12th. She pointed out that in his will-say Mr. Nenadovich states that he cannot remember whether or not he called the grievor on March 12th but admits that he may have done that. He testified that since he could not remember calling the grievor, he also could not speak to what may or my not have been said if the call did happen. [31] Counsel pointed out that during cross-examination Mr. Nenadovich agreed that the allegation of falsifying covid test results could lead to discipline. He also agreed that in his email that morning, he did not mention anything about the grievor’s right to union representation. He also agreed that he does not know when the grievor read his email and therefore could not dispute the grievor’s evidence that he had not read it before he called him. [32] Counsel stated that there clearly is a conflict between the testimony of the grievor and Mr. Nenadovich whether or not the meeting in Mr. Nenadovich’s office on March 12th took place as alleged by the grievor. The grievor alleges it did. Despite stating that he could not recall whether he made the telephone call or not, Mr. Nenadovich was adamant that the meeting the grievor described did not happen. He testified that he had access to the photographs of the falsified test results in his computer, yet insisted that he did not show any photographs to the grievor. Unlike Mr. Nenadovich whose recollection of what happened on March 12th was not very good, the grievor clearly described in detail what happened. Citing the judgement of the B.C. Court of Appeal in Faryna v. Chorney, [1952] 2 D.L.R. 354 at 356-8, counsel submitted that the grievor’s testimony meets the test of being “in harmony with the preponderance of probabilities which a practical -15 - and informed person would recognize as reasonable in that place and in those conditions”. [33] Counsel submitted that the grievor’s testimony was consistent with the contemporaneous statement he made in his OR. Given also that the grievor had a better memory of what happened on March 12th than Mr. Nenadovich, the Board should prefer his testimony. The grievor was confronted with a serious allegation, which he would remember in detail. For Mr. Nenadovich the meeting was not of particular importance. As a Staff Sergeant, meeting with COs was routine for him, and it is far more likely that he is honestly mistaken and has forgotten about the meeting. It is less like that the grievor was lying. [34] Union counsel cited and reviewed numerous arbitration awards and decisions of the GSB to support the proposition that the rights given to employees in article 30.1 are substantive rights and the obligations imposed on the employer in article 30.1 are mandatory. I do not propose to deal with that case law since the employer did not dispute those propositions. Whether a meeting which triggered the rights and obligations in article 30.1 is a factual dispute which must be resolved based on the evidence before the Board. EMPLOYER SUBMISSIONS [35] Employer counsel submitted that the evidence before the Board does not support a finding that article 30.1 was triggered. Citing the Board’s decision in Re Rundle, 2013-1116 (Briggs), a one.page expedited med-arb decision without reasons where the Board wrote that “There is no right to union representation when writing -16 - incident reports”, he submitted that there is no right to union representation under article 30.1 whenever the employer requests an employee to submit an OR. [36] Counsel submitted that when Mr. Nenadovich called the grievor prior to his shift on March 12, 2022, his intention was not to investigate anything. He had been directed by his superior Mr. Janisse to obtain an OR from the grievor. He was contacting the grievor for that purpose. When Mr. Nenadovich emailed the grievor and then called him to verify that the grievor had received and read the email, he was merely carrying out that direction. When the grievor provided him the OR, he read it and filed it for the superintendent to pick it up. He was not involved in anyway in acting on the OR. That was the responsibility of senior management. [37] Counsel pointed out that Mr. Nenadovich explained during testimony that he mentioned the allegations in his email to the grievor, only because he had to inform the grievor that the requested OR was about allegations related to his covid test results. He submitted that contrary to union counsel’s assertion, the grievor’s evidence was that he read Mr. Nenadovich’s email before he wrote the OR. [38] Counsel submitted that the employer wanted an OR from the grievor not as a part of an on-going investigation. The purpose was to see if a formal investigation is warranted. That investigation was initiated only on March 17, 2022, well after the alleged meeting, and after the grievor had submitted his OR. [39] Counsel agreed that there is a direct conflict in the evidence of Mr. Nenadovich and the grievor as to whether they met in Mr. Nenadovich’s office on March 12th -17 - once or twice. He reviewed the evidence of the two witnesses. He submitted that Mr. Nenadovich was an experienced Staff Sergeant, who had supervised COs and dealt with disciplinary matters regularly. He urged the Board to ask itself whether such a manager would suddenly decide to investigate the serious allegations against the grievor himself, summon the grievor to his office and confront him with photographs of falsified photographs and ask him to respond. He is alleged to have done that without even a note-taker present, and he made no notes himself either. According to the grievor at this meeting Mr. Nenadovich was very cavalier. Counsel submitted that if he was investigating serious allegations he would not have behaved in that manner. Moreover, after having got an admission from the grievor, he would have immediately communicated that to senior management, instead of just putting the OR in a folder. [40] Counsel used the particulars the union provided following the filing of the grievance to argue that the grievor’s evidence is not credible. He submitted that the particulars constitute “the story” the grievor related to the union about what occurred on March 12th. Those particulars make no mention about Mr. Nenadovich confronting him with photographs or asking him to respond. It only says that the grievor was informed of the allegations. [41] Counsel also noted that the grievor wrote the OR as soon as he returned to his unit from the alleged meeting with Mr. Nenadovich. That OR is as follows: Ma’am, On Saturday, March 12th, 2022, approximately 19.07 hours, I was working as the Secondary T19 Officer in Unit A1/A2 when I was called via telephone by Staff Sergeant Tomislav Nenadovich to come to is office for a meeting. -18 - I was informed by Staff Sergeant Nenadovich that it was apparent that I had changed the dates of my COVID Rapid Test on a prior occasion from a previous COVID Radi Test. I had done this in the past due to poor time management on my behalf. I have been working every night for three months with maybe two or three days off. I have found it hard to accomplish what I need to do at home as far as preparing my uniform and meals for my shifts as well as always completing COVID testing. I should have made COVID testing more of a priority and from now on I will find more time to get these tests done whether that means waking up earlier or taking more days off to become a more diligent officer. This will not happen again in the future. Counsel pointed out that there is no mention at all in the OR about Mr. Nenadovich confronting him with photographs, asking him to respond or about the grievor admitting or apologizing to Mr. Nenadovich. The grievor agreed that he had enough time until the end of his 12 hour shift to provide the OR. Counsel submitted that if what he testified about actually happened, the grievor surely would have included that important information in his OR. [42] Employer counsel stated that while union counsel questioned Mr. Nenadovich’s memory and stated that he was mistaken when he testified that the only time he met with the grievor that day was when he dropped off the OR, Mr. Nenadovich was consistent throughout and had no doubts about his testimony on that issue. He testified that he was 99.9% certain there was only that one meeting. If anyone’s memory is to be questioned it has to be the grievor’s because in his addendum to the OR he states that at that time he had fallen into a state of hopelessness and depression, rarely slept and began to cope with alcohol. The union’s particulars at paragraph 18, asserts that he “… has little memory of taking this action and re-submitting the RAT test and advises that he was likely -19 - intoxicated on many, if not most of the occasions when he re-submitted the RAT test”. [43] Employer counsel submitted that the union must, if its motion is to succeed, prove that before the alleged meeting on March 12th the employer had started an investigation into the grievor’s conduct, and that if that meeting occurred, it was in furtherance of that ongoing investigation. Counsel submitted that the Board should accept Mr. Nenadovich’s clear evidence, which was unshaken during repeated cross-examination. Counsel submitted that if the Board concludes that there were two meetings it should find that neither meeting was for the purpose of investigation, but only to request the grievor to provide an OR with respect to what appeared to be serious misconduct. [44] Counsel submitted that unlike in the authorities relied upon by the union, under article 30.1 not every discussion between a manager and an employee about misconduct triggers a right to union representation. That happens only if the employer had already started an investigation into that misconduct. UNION REPLY [45] Union counsel submitted that if the Board accepts the employer’s position that even if the meeting alleged by the grievor took place it did not trigger article 30.1, such a formalistic interpretation would undermine a substantive right employees have under the collective agreement that protects them from being put in a vulnerable position. While article 30.1(b) states “to investigate matters which may result in disciplinary action”, that is only one of many types of meetings article 30.1 sets out. It is not only meetings labelled by the employer as an investigation -20 - that trigger the rights under article 30.1. She submitted that a meeting where allegations are put, evidentiary proof of the allegations by way photographs are presented, and the employee is asked to respond, would clearly engage article 30.1. [46] Counsel disagreed that there is inconsistency between the union’s particulars and the grievor’s evidence. She submitted that there is nothing in the particulars to support a finding that the meeting did not happen. In his testimony the grievor consistently asserted that the meeting took place. Counsel submitted that if the Board finds that the meeting took place, that is directly contrary to Mr. Nenadovich’s insistence that it did not. The union does not allege that Mr. Nenadovich was intentionally lying or misleading the Board. It is more likely that he forgot about that meeting because it was not of any significance for him. DECISION [47] The issues that need to be determined in disposing of this motion are as follows: (1) The factual dispute as to whether a meeting took place on March 12th as described by the grievor in his testimony. (2) If it took place, did it trigger the rights under article 30.1 (3) If article 30.1 was triggered, were the grievor’s rights under article 30.1 violated. (4) If it did, what would be the remedy. [48] I have set out in detail all the evidence put before the Board about the interaction between the grievor and Mr. Nenadovich on March 12th. The onus of proving a violation of article 30.1 is on the union. I turn first to the factual issue as to whether -21 - a meeting that engaged article 30.1 took place. I agree with union counsel that the grievor was consistent throughout his testimony in asserting that the alleged meeting took place, and in his description of what happened at the meeting. However, I find inconsistency between that testimony, and the union’s particulars as well as the OR the grievor provided shortly after the alleged meeting. The only particulars set out about the meeting are in paragraphs 19 and 20. They read: 19. On March 12, 2022, the grievor was summoned to a meeting with Staff Sergeant Tomislave Nenadovich. At the meeting Staff Sergeant Tomislave Nenadovich informed Mr. Moloney that “it was apparent that he had changed the dates of his RAT test”, and had submitted it to the employer. The grievor was not provided with particulars from the employer of when this was alleged to have taken place”. 20. “He was asked to complete an Occurrence Report in response to the allegations against him.” [49] The inconsistency is not in what the particulars say, but in what it does not say. In his evidence the grievor repeatedly alleged that Mr. Nenadovich showed him at least one photograph of a falsified test result. However, that important piece of information is not even mentioned in the particulars. Also, in testimony the grievor alleged that after showing the photographs, Mr. Nenadovich asked him to respond, and he did by admitting his misconduct. The particulars do not mention that. It only states that after showing the photographs, Mr. Nenadovich asked him to provide an OR. Nor do the particulars say that the grievor admitted his misconduct or that he apologised as the grievor testified. [50] Similarly, the OR ( supra at para. 42 ) the grievor provided shortly after the alleged meeting, makes no mention of several pieces of important information the grievor -22 - testified about. He wrote that Mr. Nenadovich called him and asked him to come to Mr. Nenadovich’s office for a meeting. All he says about what happened at the meeting is that he “was informed by Staff Sergeant that it was apparent that I had changed the dates of my Covid Rapid Test on a prior occasion from a previous COVID RAPID test”. There is no mention of being shown any photographs, being asked to respond, or him admitting or apologizing. The OR does not even mention that at the alleged meeting the grievor was asked to provide an OR. This omission is consistent with Mr. Nenadovich’s evidence that if he verbally requested an OR, that would have been only during the telephone call he made to the grievor to follow up his request for an OR by email. [51] On March 28, the grievor submitted an addendum to his March 12th OR, setting out the personal and health issues he was struggling with at the time of his misconduct. He explained in his evidence that he did not include that confidential information in the original OR because at that time he had not realized the gravity of the allegations he was facing, and did not see a need to do so. The evidence is that he received the letter of suspension dated March 17, 2022. The grievor testified in cross-examination that before he wrote the addendum, he spoke with the union and wrote it at the union office. Yet, that addendum also makes no mention about being confronted with photographs, being asked to respond or about him admitting and apologizing, or being asked to provide an OR at the meeting. [52] In contrast, Mr. Nenadovich’s testimony that the alleged meeting as described by the grievor did not happen is not inconsistent with any other evidence. He admitted that he signed the March 12th OR the grievor provided, that he read it -23 - and signed it. However, that does not cast doubt on Mr. Nenadovich’s credibility. His consistent position was that his superior had directed him to request the grievor to provide an OR. Since that was all he was responsible to do, it would not have been appropriate for him to edit or assist the grievor write the OR. An OR is the employee’s version of what happened. It does not have to be consistent with the employer’s version for the employer to accept it. Besides, the OR Mr. Nenadovich received was largely accurate. He has always denied that the alleged showing of photographs, being asked to respond etc. never happened, because the meeting never took place in the first place. The OR is consistent with that in that it has no mention of those either. The only inaccuracy in the OR is that it claims that when Mr. Nenadovich called he asked the grievor to come to his office. [53] I also do not accept the suggestion by union counsel Mr. Nenadovich likely forgot about the meeting or was mistaken. While dealing with employee discipline matters may have been routine for Mr. Nenadovich, being able to confront an employee with undisputable photographic evidence of the alleged misconduct and the employee confessing his guilt and apologizing on the spot would not be routine. Moreover, if Mr. Nenadovich, had obtained an admission from the grievor, it is unlikely that he would do nothing more than file the OR in a folder for senior management. It is more likely he would have alerted them about the admission by contacting them, or at least by attaching a note to the OR indicating that the employee had made an admission. [54] I found Mr. Nenadovich to be credible. When he could not recall calling the grievor he said so, but accepted that he may have called as the grievor asserted. -24 - I conclude from the evidence that his call was simply to follow up on the earlier email he had sent mentioning the appearance that the grievor had falsified covid test results, and requesting that the grievor provide an OR. [55] The Board also concludes that the interaction Mr. Nenadovich had with the grievor on March 12th was only in the capacity of a “ messenger”, whose responsibility was only to obtain an OR from the grievor for the Superintendent. I agree with union counsel that a meeting, to trigger article 30.1, does not have to be an allegation meeting or some other formal meeting. It is also not necessary for the manager to intend the meeting to be for investigation purposes. Nor is it required that that there has to be an investigation already underway for the article to apply. Any meeting that comes within any of the subsections of article 30.1 places the employee in a vulnerable position of having to respond to allegations without the protections of the rights stipulated in article 30.1. If the employer has a such a meeting without complying with its obligations in article 30.1, there would be a violation. However, in the light of all of the evidence in this case, the Board concludes that such a meeting did not take place on March 12, 2022. [56] There was some evidence led as to whether the employer violated article 30.1 as a result of the email sent by Mr. Nenadovich, during his telephone conversation with the grievor or at the two allegation meetings held subsequently. However, the union did not assert that they did. The Board finds that there were no violations in any of those events. [57] Given that conclusion, it is not necessary for the Board to deal with issues 3, 4, and 5 set out at para 47 of this decision. Nor is it necessary to deal with the -25 - employer’s submissions that the union’s reliance on article 30.1 constitutes an improper expansion of the grievance it had filed. [58] It follows form the foregoing that the union’s motion based on article 30.1 is dismissed. The Board remains seized to hear and determine the grievance on its merits. The hearing will continue on the scheduled dates for that purpose. Dated at Toronto, Ontario this 17th day of November 2023. “Nimal Dissanayake” Nimal Dissanayake, Arbitrator