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HomeMy WebLinkAbout2010-1617.Bijowski.12-07-12 DecisionCrown Employees Grievance Settlement Board Suite 600 180 Dundas St. West Toronto, Ontario M5G 1Z8 Tel. (416) 326-1388 Fax (416) 326-1396 Commission de règlement des griefs des employés de la Couronne Bureau 600 180, rue Dundas Ouest Toronto (Ontario) M5G 1Z8 Tél. : (416) 326-1388 Téléc. : (416) 326-1396 GSB#2010-1617 UNION#2010-0234-0207 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN Ontario Public Service Employees Union (Bijowski) Union - and - The Crown in Right of Ontario (Ministry of Community Safety and Correctional Services) Employer BEFORE Nimal Dissanayake Vice-Chair FOR THE UNION Christopher Bryden Ryder Wright Blair & Holmes LLP Barristers & Solicitors FOR THE EMPLOYER Paul Meier Ministry of Government Services Labour Practice Group Counsel HEARING June 26, 2012. - 2 - Decision [1] The Board is seized with a grievance dated September 3, 2010 filed by Mr. Donald Bijowski (“grievor”) wherein he grieves that he was terminated without just cause from his employment as a correctional officer at the Maplehurst Correctional Centre. The termination of the grievor`s employment was effected by a letter dated September 3, 2010, from the Deputy Superintendent/Administration of the institution, Mr. Tom O’Connell. The evidence indicates that preceding the termination, Mr. O’Connell wrote a letter dated August 3, 2010, (“allegation letter”) to the grievor, setting out 5 allegations against him, and convening a meeting to enable the grievor to respond to them. The five enumerated allegations in the letter, are as follows: Allegation 1 On January 3rd, 2009, in an effort to gain confidential information regarding a Halton Regional Policy Services investigation you were insubordinate and failed to perform your duties as a Peace Officer in an orderly and responsible manner in full cooperation with your immediate supervisor when you removed inmate Comeau from his cell without an Operational Manager present, in direct contravention of verbal and written directions not to do so. Allegation 2 You failed to declare to your Employer your family, personal and business relationships with several former and current ministry clients in clear violation of the Ministry’s Policies/Directives regarding conflicts of interest and respective disclosure obligations. Not only did you maintain these relationships in secrecy outside the institution but you also carried out these relationships within Maplehurst CC without your Employer’s knowledge. Allegation 3 You used your title and position status as a Correctional Officer with the Ontario Public Service when stopped by Police in the company of known criminals. Such behaviour can be considered a breach of the Ministry’s Statement of Ethical Principles and may be deemed as a conflict of interest under the Public Service of Ontario Act, 2006 Regulation 381/07. Such misconduct is considered injurious to the image of the Ontario Public Service and undermines your role and obligations as a Peace Officer. - 3 - Allegation 4 You failed to adhere to Ministry Policy and Procedures, when you tried to coerce ministry staff in the transfer of Inmate Zderic from CNCC to MICC for personal reasons. You were deceitful in your attempts to administer this transfer by failing to provide accurate information surrounding Inmate Zderic to Ministry Staff. Allegation 5 Your failure to respond in a forthright and truthful manner to a Ministry Inspector’s question was a direct violation of MCS Act Section 22(1). [2] The meeting, referred to as the “allegation meeting”, occurred on August 13, 2010, and the letter of termination was issued on September 3, 2010. In it Mr. O’Connell concluded that allegations 1, 2, 4, 5 were substantiated, and that allegation 3 was not. The allegations set out in the allegation letter were reproduced in identical form in the termination letter. [3] The hearing in this matter commenced on April 1, 2011. Following multiple hearing days, all of the evidence was concluded on June 5, 2012. At that point the employer advised that it would not be pursuing the allegations as they relate to inmates Comeau and Hazell. The Board was also advised that the union would be making a motion to the effect that the employer was attempting to expand the grounds it relied upon at the time of the termination. The Board was asked to hear and determine that motion before hearing final submissions on the merits. A hearing for that purpose was held on June 26, 2012. [4] The union’s motion is to the effect that (1) the employer’s evidence relating to an allegation that the grievor had an association with inmate Narinder Singh (“NS’) without disclosing such to the employer, and did favours to NS contrary to policy; and (2) the employer’s evidence relating to an allegation that the grievor had an association with inmate Junior Sanchez’s (“JS”) girl-friend, Tania Mammolitti (“TM”), and that he did favours for inmate JS; is an attempt to expand the grounds for termination. It was - 4 - submitted that evidence adduced relating to these two issues should be struck from the record, and the employer barred from relying on those. [5] The employer’s primary position is that the evidence relating to both issues in dispute is just that, i.e., evidence of further examples of the grounds for termination clearly communicated in allegation 2. Counsel submitted that the essence of this allegation is about the obligation of a correctional officer, as a peace officer, to avoid conflict of interest and to disclose conflicts to the employer, and that the evidence relating to inmate NS and TM/inmate JS constitutes further examples in support of that ground. Additionally, employer counsel contends that while the employer had some suspicions based on “bits and pieces” of information it was able to confirm and substantiate the allegations relating to inmate NS and TM/inmate JS only subsequent to the date of termination. In each case the employer notified the union as expeditiously as possible given the circumstances. Counsel pointed out that the union has not claimed that it had suffered any prejudice by not receiving earlier notice of the inmate NS evidence. The only prejudice claimed is to the effect that the grievor’s ability to recall details about his interaction with TM/inmate JS some 3-4 years earlier was impeded. Counsel submitted that assuming that to be the case, it is not a reason to exclude the evidence, although the Board may consider it in assessing the weight to be attached to the evidence. [6] The collective agreement includes: 22.14.4 The parties agree the principles of full disclosure of issues in dispute as alleged by a grievance advanced by the Union on behalf of a member or members, or the Union itself, and full disclosure of facts relied upon by management in a decision that is subject to a grievance, are key elements in amicable and expeditious dispute resolution process. 22.14.5 The parties agree that at the earliest stage of the grievance procedure, either party upon request is entitled to receive form the other, full disclosure. The Board agrees with the union that article 24.14.4 indicates the acknowledgement of the parties that early disclosure is necessary to facilitate amicable and expeditious resolution of grievances. In order to give effect to that principle, article 22.14.5 provides that “upon request” a party is entitled to full disclosure at the earliest stage of the - 5 - grievance procedure. However, as the Board in Re Lewis, 1222/99 (Abramsky) stated at p. 11, “… articles 22.14.4 and 22.14.5 do not, by their terms, limit the scope of arbitration”. I agree that while the principle in favour of early disclosure recognized in those articles may be considered by the Board in the exercise of its discretion to limit the scope of evidence, it does not constitute a limit on the scope of arbitration. [7] The union referred the Board to the following authorities: Re Aerocide Dispensers Ltd., (1965), 15 L.A.C. 416 (Laskin); Re Lewis (supra); Re Braybrook, 800/99 (Dissanayake); Re McQueen, 0383/97 etc. (Briggs); Re Waste Management of Canada Corporation, (2009) 186 L.A.C. (4th) 129 (Watters); Re Bruce Retirement Villa, (1998) 75 L.A.C. (4th) 256 (Watters); Re Pembroke General Hospital (2004) 130 L.A.C. (4th) 100 (Stephens); Re Petro Canada, (2000) 86 L.A.C. (4th) 36 (Marcotte) [8] The employer relied on the following authorities: Re Her Majesty in Right of Manitoba, (1991) 20 L.A.C. (4th) 269 (Chapman); Re Toronto Hospital, [1996] O.L.A.A. No. 262 (Thorne); Re Sunnybrook Health Sciences Centre, (2009) 99 C.L.A.S. 342 (Goodfellow); Re Hotel-Dieu Hospital, (2009) 96 C.L.A.S. 231 (Rose); Re City of Toronto, (2010) 193 L.A.C. (4th) 362 (Starkman). [9] The gist of allegation 2 set out in the letter of termination relates to “family, personal and business relationships” the grievor had “with several former and current Ministry clients”, both within and outside the institution. There can be no doubt that the evidence relating to inmate NS clearly falls within allegation 2. The union did not argue otherwise. Its position is that the employer had information relating to a possible connection between the grievor and inmate NS as early as 2008, and chose not to rely on such information as a ground for the grievor’s termination on September 3, 2010. [10] The union, however, submits that the allegation relating to TM/inmate JS is not captured by any of the grounds set out in the letter of termination. Counsel argues that allegation 2 is about relationships with “ministry clients”. TM was not a ministry client. Thus any relationship or interaction the grievor may have had with her falls outside allegation 2, and constitutes a new ground. Union counsel further submits that, neither of the two - 6 - disputed allegations could be regarded as “after-acquired” so as to fall within the exception to the principle established in Re Aerocide Dispensers Ltd (supra). [11] Turning to the evidence, it is clear that the employer did not raise any allegation relating to inmate NS or TM/inmate JS at the allegation meeting. Nor did the allegation letter or the letter of termination make specific reference to either of those. The evidence also indicates that the employer had some information and had some suspicion of a relationship between the grievor and inmate NS, and with TM/inmate JS prior to the date of termination. However, the Board concludes from the evidence, that at the time of termination the employer had not substantiated its suspicions sufficiently as to be able to rely on them as grounds for discipline. They were suspicions and nothing more. [12] The parties agreed that the Board has discretion in determining the instant motion. I adopt the factors listed by arbitrator Goodfellow in Re Sunnybrook Health Sciences Centre, (supra) at para. 10 as relevant in exercising that discretion. There, the arbitrator wrote: The cases consider and weigh such factors as the language of the collective agreement (does it, for example, require the employer to give reasons in writing for discharge or discipline and/or strictly regulate what may be submitted to arbitration by reference to the original reasons), the relationship between the new allegations and the original ones (are they further incidents of the same kind of misconduct or something entirely different), when were the new allegations discovered (were they known by the employer at the time of discharge, were they only discovered subsequently, could they have been discovered earlier, and what role, if any, did the grievor play in their non-detection), how quickly were the new allegations brought to the union’s attention after discovery (did the employer act expeditiously in drawing them to the union’s attention or did it seek to gain some tactical or other advantage by delaying in their disclosure), were the new allegations canvassed either directly or indirectly (i.e. by their nature) in the grievance procedure (if so, it would be difficult to imagine any real prejudice to the grievor or harm to the process as referred to in Aerocide), the significance of the new allegations to the future employment relationship (which seems to be either a spoken or unspoken consideration) and whether the new allegations can be accommodated within the context of the existing proceeding without undue delay or other prejudice to the grievor (i.e., can a fair hearing be accorded). [13] In Re Bruce Retirement Villa (supra) at p. 274, the arbitrator summed up the law as follows: - 7 - It is clear that, as a general rule, an Employer at arbitration is restricted to the grounds relied on at the time the discipline was initially imposed. In the context of a dispute over discharge an Employer would normally be limited to adducing evidence of misconduct relevant to the grounds set out in the letter of termination. The authorities referenced above demonstrate, however, that there are exceptions to this general rule. They recognize, Inter alia, that an Employer may rely on a new ground to support the discharge if such ground was discovered only after the dismissal and could not, therefore, have been included in the grounds as initially described. The arbitral jurisprudence places an obligation on an Employer, wishing to rely on new grounds, to provide notice to the Union of same in a timely fashion. The cases suggest that an Arbitrator faced with a request such as the one made here, must exercise his or her discretion based on all of the circumstances of the case. One of the most important considerations in exercising this authority is the need to ensure that both parties receive a fair hearing. [14] In the same vein, in Re Air Canada (1999) 86 L.A.C. (4th) 232 (Brandt) at p. 247, it was observed: As noted the case law generally allows an employer to rely on after acquired evidence where it can be established that, at the time of the original discharge, it did not know of the additional grounds or could not, with a reasonably diligent search have discovered those grounds particularly where the new grounds alleged bear some relation to some or all of the allegations made out in the letter of termination. However, the case law makes it clear that before this will be permitted the union and the grievor must be extended ‘procedural fairness’ that is, they must be informed of the intention to rely on these new grounds in sufficient time to prepare for and respond to them at the arbitration hearing …. [15] The so called “rule in Aerocide” first enunciated in 1965, has been subject to critical review in subsequent awards, and its soundness if applied without qualification has been questioned. See, Re Canadian Airlines International Ltd., (1988) 35 L.A.C. (3d) 66 (Munroe). It has been suggested that the rule encourages employers “to be suitably vague or to throw in the kitchen sink, when assigning reasons for their discipline”. Palmer, Collective Agreement Arbitration in Canada, 2nd Ed. (1983), quoted in Re Canadian Airlines (supra). [16] In Re Loblaw Groceterias Co. Ltd., (1973) 3 L.A.C. (2nd) 325 (Adams) at pp. 336-7, the arbitrator wrote: However, there is some doubt this principle applies where the alternative grounds raised by a company were grounds unknown to it at the time it took the action … or where the alternative grounds were unknown to the company until after it took the disciplinary action because the surreptitious nature of the grievor’s offences - 8 - made discovery difficult … while, in these latter instances, the company is changing its reasons for discharge, the change is more understandable and justifiable. Provided that the parties have had sufficient time to consider this “new ground” in the grievance procedure, or at the very least, have had sufficient time to prepare the issue for the arbitration hearing, a company’s reliance upon such a new ground seems less at odds with the concept of just cause. [17] Picking up on that reasoning, in Re Ontario Hydro, (1988) 3 L.A.C. (4th) 112 (Brent), the arbitrator wrote at para. 42-43: 42 With respect, though, we consider that following the Loblaw reasoning Aerocide should be read as limiting the employer to the stated grounds for discharge only in the sense that it precludes the employer from trying to fashion a new ground for discharge out of the incident it acted upon in order to fit the evidence it has rather than the evidence it thought it had. However, if the employer learns of something new after it has decided to discharge and that “something new’ would justify discharge on its own, should the employer be precluded from raising it as a new and separate ground of discharge as of the date that it was determined that the “something new” should be relied on as cause for discharge, provided that all procedural safeguards are complied with? Loblaw answers that question by allowing the introduction of the after-acquired evidence. Therefore, it seems that one must distinguish between cases where the evidence has not come out as expected and employers try to bolster a weak case by trying to turn what is now seen to be a sow ear into something resembling a silk purse, and those cases where employers come forward with newly acquired evidence which could have been relied on as grounds for discharge had the person still been employed when the evidence became known to the employer. 43 The Loblaw decision is one which arrives at a fair solution to a difficult problem. The employer is allowed to introduce a separate ground for discharge, evidence of which only came to its attention following the discharge. This precludes any possibility of the employer being able to use that evidence to support a discharge following a reinstatement as occurred in the Wascana case, supra. The requirement that the union receive full notice of the new grounds before the hearing means that it is not taken by surprise and so is not deprived of its ability to present its case. The grievance procedure is respected because the board is not asked to engage in the sort of second-guessing that would have been required in Aerocide, supra, and the parties are allowed to put all their cards on the table and to have the impediments to the employment relationship adjudicated upon and determined without the cloud of any unresolved matters to fetter the future of the relationship should the grievor be reinstated. [18] In Re Canadian Airlines, (supra) at p. 72 arbitrator Munroe concluded: In our view, the true justification for the rule, if such it be, lies in the unyielding requirement of a fair hearing on the real substance of the parties’ differences. To carry the rule further, and to refuse its realization even where there is no threat to - 9 - natural justice and no real prejudice to anyone, would be the sort of mistaken symbolism that tends to being the system into disrepute. We also believe that to be the modern arbitral consensus. Among the authorities cited by arbitrator Munroe is the following observation by the B.C. Supreme Court in Re I.W.A., L.1-118 and Sooke Forest Products ltd, (1968), 68 D.L.R. (2nd) 432 (Affirmed by B.C. Court of Appeal 1 D.L.R. (3rd) 622) at p. 434: Here, I agree with the majority of the Board that, in view of the wording of the submission in this case [Were the employees discharged for proper cause?] the existence of any, and not necessarily the specific, proper cause would support and indeed, demand, a finding that the discharged employee was not entitled to be reinstated. This agreement by me is subject, to their being, in each case, adequate notice to the grievor of the ground or grounds being advanced against him and having a fair opportunity to meet the case being made against him on those grounds, or to request an adjournment on the ground of surprise. [19] In the instant case, the Board concludes that neither of the disputed matters constitute “new grounds” for the grievor’s termination. Allegation 2 is about improper relationships with several past and present ministry clients. It does not include particulars about any specific ministry client with whom the grievor allegedly had a relationship. At the allegation meeting prior to dismissal, particulars were provided about certain such clients, as well as the spouse of one client. The union has not objected to the reliance on those particulars, and agrees that they properly fit within allegation 2. As noted, the union did not dispute that the evidence relating to the grievor’s relationship with inmate NS falls within allegation 2. Its real complaint is that, while some information and documentation were provided in that regard, particulars in detail were not provided until the employer presented its opening statement on the first day of arbitration. It was also contended that the evidence relating to the grievor providing a cellular telephone to inmate NS and doing other favours for him does not fall within allegation 2, because allegation 2 does not include an allegation of doing favours to ministry clients. Counsel pointed to evidence that well in advance of the grievor’s termination the employer, through its investigation unit and security division, had suspicions of “a connection” between the grievor and inmate NS, and failed to diligently pursue it or to provide notice to the grievor or the union prior to termination. - 10 - [20] The Board finds that while the employer had suspicions, (this was admitted by employer counsel), that is not grounds to exclude the evidence. The Board is satisfied that at the interview with inmate NS on August 12, 2010, NS made statements that tended to confirm suspicious the employer had entertained. The allegation meeting occurred the next day. The transcript of the interview was not available until October 5, 2010. The employer`s explanation that as of the date of termination it had not properly analysed the information to come to a conclusion is not unreasonable. Thus the Manager of Security, Mr. Michael McDonald testified that at the time he had suspicions, but had no solid evidence to allow the superintendent to take disciplinary action. In Re Waste Management of Canada, (supra), the Board was critical of the employer proposing to call witnesses on the mere possibility that they would support and confirm its suspicions. That approach was found to be a fishing expedition. Here, the employer did the opposite. It did not make the allegation until it had the opportunity to satisfy itself that the information it had obtained would support an allegation. The employer should not be penalized for doing so, provided of course that the grievor was not denied adequate notice and a fair opportunity to defend against the allegations asserted. [21] The Board disagrees that the evidence relating to the alleged supplying of a cellular telephone and doing other favours to inmate NS falls outside allegation 2. As the authorities indicate the “grounds” relied upon by the employer ought to be broadly interpreted. The employer is not required to set out particulars as part of the “grounds” for termination, provided that particulars are provided in a sufficiently timely fashion to enable the grievor to fairly defend the case against him. In the Board`s view, the term “personal relationship” reasonably encompasses doing of personal favours, including providing a cellular telephone. [22] As for the ability of the grievor to fairly defend against the allegations relating to inmate NS, the evidence is that on February 2, 2011, employer counsel provided to union counsel excerpts of the transcript of the interview with inmate NS on August 12, 2010. That contained the information disclosed by NS relating to the cellular telephone and his relations with the grievor. Union counsel insisted on access to the full transcript and the - 11 - parties came to an agreement to provide that access, while addressing confidentiality concerns. [23] Union counsel admitted that on February 2nd and subsequently on March 25, 2011, the employer informed that it may be relying on the evidence relating to inmate NS at arbitration. However, counsel submitted that “still no detailed particulars were provided” and that he was not advised as to how the transcript would be relied on. He submitted that particulars were first provided during the employer’s opening on the first day of hearing. The evidence indicates that following the employer’s opening statement, union counsel requested that he be given time, in view of the new allegations included in the employer’s opening and not required to make his opening statement at that time. The employer agreed. The union sought written particulars, which were provided on April 8, 2011 including particulars relating to inmate NS. [24] On the basis of evidence, the Board finds that the grievor and the union were not denied a fair opportunity to defend against the allegations relating to inmate NS. The evidence is that at the union’s request, the grievance was referred to arbitration by-passing the grievance procedure. Thus, it could not be a concern that the parties were denied opportunity to discuss these allegations at the grievance procedure as a result of any employer conduct. Moreover, as article 22.14.5 provides the union was entitled to full particulars upon request. As soon as such a request was made full particulars were provided. If deemed necessary it was also open for the union to seek an adjournment of continuing hearing dates. None was sought. This is not surprising because the union does not contend that its ability to defend against the allegations relating to inmate NS was impeded as a result of delayed particulars. For the foregoing reasons the union’s motion fails as far as it relates to the evidence about the alleged relationship between the grievor and inmate NS. [25] The Board finds that the evidence relating to the relationship between the grievor and TM/inmate JS also is not a new ground, but is encompassed in allegation 2. It is true, as the union argues, that Ms. TM herself cannot properly be regarded as a “Ministry client” as described in allegation 2. However, the employer’s concern is not about TM as a - 12 - member of the public. The concern arises only because TM was known to be the girl- friend of an inmate, who is a Ministry client. In other words, in these circumstances a relationship with a woman known to be the girl-friend of an inmate, is a relationship with the inmate. Doing favours to the girl-friend, e.g. attempting to allow her more visits with the inmate than is allowed by policy, is doing a favour to the inmate. This situation, in the Board’s view, is no different than the evidence relating to the grievor’s association with the wife of inmate Zderic, to which the union has not made objection. The only difference is the timing of the notice provided to the union. [26] The allegation that the grievor had a relationship with TM/inmate JS first surfaced on May 11, 2011, during the testimony of Mr. Michael McDonald. He testified in chief that he became aware of a notation made on June 17, 2008 by a security staff in the security log to the effect that inmate JS is a friend of the grievor, that a female visiting inmate JS calls the grievor when she visits JS , and that the grievor attempts to convince officers at the visitor reception not to record the visit. Mr. McDonald testified that he reviewed the visitor logs and it appeared that the visitor in question was inmate JS’s girl-friend. He said that at the time she was not in security’s radar, but in preparation for testimony he reviewed the visitor logs for the past 1½ years. He became aware that the female in question was the same individual referenced in the grievor’s telephone records. He discovered that in the period June 1st, to September 17, 2008, TM had called the grievor’s telephone number 56 times, and that the grievor had called TM’s number 35 times. Next he reviewed the grievor’s work schedule and discovered that many of the calls occurred while the grievor was on duty. Under cross-examination, Mr. McDonald testified that he first saw the telephone records during the last week of April 2011, shortly before testifying. [27] I agree that if the employer did things perfectly, it would have investigated the information immediately upon becoming aware of the notation in the security log on June 17, 2008. However, that is not a sufficient reason to exclude the evidence. It is evident that the magnitude of the contact between the grievor and TM came to light only shortly before Mr. McDonald testified, when he reviewed the telephone records. During the CISU investigation the grievor had been questioned whether he had any personal - 13 - relationships with current or ex-inmates. He did not disclose that he had any relationship with inmate JS, leave aside that he is a friend as the employer alleges. [28] The Board subscribes to the view that the Aerocide principle that an employer must be held to the grounds for termination relied upon at the time, is not a technical rule. Rather, it is rule of fairness designed to ensure that the grievor is not denied a fair opportunity to defend against the allegations against him. While the employer had some information in June 2008, the incriminating documentary evidence came to light only in preparation for arbitration long after the date of termination. If deemed necessary, it was open for the union to seek an adjournment in order to prepare its cross-examination of Mr. McDonald or to prepare its defence against the allegations. That did not happen. The grievor had the opportunity to testify in his defence and did so. The only prejudice alleged is on the basis of the grievor’s testimony that he could not recall the exact content of the conversations he had with TM during the various calls, and that on several occasions when he called TM’s number he talked with another individual, not TM, but he could not identify on which occasions that may have happened. Counsel submitted that if the allegation had been brought to the grievor’s attention earlier he would have been in a better position to recall those details. The Board is convinced that the grievor was not denied a fair and reasonable opportunity to defend himself. Particularly considering that the allegation is directly related to a ground for termination originally asserted and communicated, the Board declines the request that the evidence in relation to TM/inmate JS be barred. [29] In the result, the union’s motion is denied in its totality. The hearing will proceed on the dates scheduled and the Board remains seized. Dated at Toronto this 12th day of July 2012. Nimal Dissanayake, Vice-Chair