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HomeMy WebLinkAbout1984-1707.Drury.85-09-04September 4, 1985 F;,felLevinsOn Messrs:Koskie & Minsky Barristers &Solicitors 2500-130 Adelaide Street W. TomF2, Ontario Dear Mr. Levinson: Re: 1707184 OPSEU (G. Drury) and Crown/Ontario (Liquor Cotitrol Board of Ontario) Enclosed herewith for your information is an "advance copy" of the Board's decision in the above-noted matter. Yours truly, Registrar TAI/cb cc: J. Chaykowsky . ‘?* , -. cm Eu901EES GRIEVANCE SETTLEMENT BOARD 1707184 IN THE MATTER OF AN ARBITRATION Under The CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Between:' OLBEU (G. Drury) Before: Appearing for the Grievor: Before THE GRIEVANCE SETTLEMENT BOARD R.J. Roberts Vice-Chairman P. Craven Member P.D. Camp Member - and - 'Griever The Crown in Right of Ontario (Liquor Control Board of Ontario) Employer M. Levinson Counsel Messrs. Ibskie & Minslq Eerristers & Solicitors for the R. J. Dmaj Comsel Messrs. Hicks, Morley, Hmiltm, Stewert, Storie brristers & Solicitors i. .I / -:., . 2. INTERIM DECISION At the outset of the hearing in this~matter, the Union mads a preliminary objection to the jurisdiction of the Board. It Gas submitted by the Union that when the L.C.B.O. discharged the griever, it.was, in effect, subjecting the grievor to a second penalty for conduct for.which he was previously disciplined. The Union contended that because it was settled in erhitral jurisprudence, no employee may.be doubly penalized for the same conduct, the second action of the L.C.B.O. was, in essence, a nullity, and accordingly,the Board should not proceed to consider the merits of the case but rather should direct the L.C.B.O..to reinstate the grievor forthwith , with full reimbursement'for wages, benefits, etc. which the grievor lost as a result of being discharged. For reasons which‘ follow, the preliminary objection - is dismissed. It seems that on January 27, 1984, the grievor, who was a Clerk 3 at the Duty Free Liquor Store at the Pearson International d Airport, was arrested on narcotics charges. News of this arrest soon came to the. attention of the L.C.B.O., and on January 30th, Mr. F. B. Rankin, the Director of Store Operations, advised the grievor by letter that he was "relieved from duty, without,pay, pending a review by the 1L.C.B;O.l of the circumstances which led to your arrest...". On February 20, 1984, after the L.C.B.O. reviewed a letter of explanation provided by the grievor, Mr. Bankin advised the grievor by letter that it was "the Board's decision to suspend you without pay pending disposition of the criminal charges laid againsb you." The grievor was further informed that he would ., ‘.< ‘., 3. be advised of his "status as an employee of the Liquor Control Board of Ontario when those, charges have been dealt with." The decision to suspend without pay.pending disposition of the criminal charges; though decidedly disciplinary in impact upon. the grievor , yes made by the L.C.&O. as a matter of administrative policy. The L.C.B.O. did not make any investigation into whether the charges were work-related; in the sense of revealing misconduct which so adversely affected the grievor's ability to do his work, the security of the work place , or the reputation of the L.C.B.O., as to justify imposition of' a disciplinary sanction. The Gcision to suspend the grievor in this interim fashion was made pursuant to a general policy of'the L.C.B.O. covering all employees who were subjected.to criminal charges not initiated by the L.C.B.O. Apparently, I&. Rankin explained to the grievor atthe 'time of his suspension that, in line with this policy, the grievor would be reinstated and paid full compensation from the date of suspension to the' date of reinstatement if he were acquitted. Nothing in the documents filed by the parties indicated whether the grievor was advised as to what would happen if he were convicted. It seems logical to infer, however, that he must have realized that following a conviction,the L.C.'B.O. would investigate and reach a final decision as to discharge. The upshot of the L.C.B.O.'s~ general policy, then, was to delay investigation and final disposition until completion of the criminal proceedings. Until that point in time, which could be months away, the employee, whether innocent or guilty, was to be denied work and wages. . . ’ ._ 4. It was this aspect of the policy -- the ind~iscriminate sweep of its pptentially disastrous consequences -- which led~ another panel of this Board to strike it down. In .Re Drury and Liquor Control Board of Ontario, G.S.B. #161/84 (McLarenl, Professor McLaren stated on behalf of a unanimous board: It was. argued that the practice is a satisfactory,one because it relies on the original principle that an employee w%o is acquitted will be mad'e whole by re- instatement and complete back pay to the date of the suspension. The difficulty .in that proposition is that to await the outcome of a criminal charge in the courts without the benefit of employment in the interim .could so dramatically affect,the individual's life that subsequent acquittal could be quite meaningless even with the reinstatement and full back pay. . . . The just. cause that the Employer offers is connection with the possibility of guilt having some affect [sic] on the Employer and in particular the likelihood of adverse .publicity.... This Board finds the nature of the charges to be very serious. ‘The existence of the, criminal charges do [sic] not affect the work environment or. the nature of the work which the individual does. They do not present any adverse affects [sic1 or hard- ship on .the Employer or its employees. No business interest or the possibi.lity of injury to such has been shown in evidence as arising in this case. . . . The Employer cannot establish sufficient contact between the existence of the charges and the employment relationship so as to satisfy the principle that the offense will impact adversely on the Employer: thus, justifying a suspension of the employee until.the final disposition of the charges.. ..;Id. at pp. 7-10 - The Board ordered the grievor to be reinstated with full compensation for the.period from the date of suspension until the date of his return. Subsequent to the releas'e of this award, the L.C.B.O. applied for a stay and made an application in the Divisional Court to quash the award. . On January 10, 1985, this application was - , 5. dismissed and the award was specifically enforced. Thereafter, on January 23, 1985, Mr. Rankinadvised the grievor by letter that ",[wje now have information indicating that the criminal charges laid against you did result from activities at your place of work and during working hours." By letter dated January 29, -' 1985, the grievor reaffirmed to Mr. Rankin that no relationship to his work existed. Finally, on February 15, 1985, hr. Rankin sent to the grievor the'following letter:. REGISTERED MAIL Mr. G. M. Drury, 801 Lisa Road, Apartment 114, Bramalea, Ontario, L6T 4B6. Dear Mr. Drury: This refers to recent correspondence, specifically our letter oft January 23, 1985 and your reply,of, January 29, 1985. All factors of the case have now been considered and it has been determined that your employment with the Board is terminated effective February 13, 1985. Termination documentation and monies due will be forwarded in due course. Yours truly F. B. Rankin Director of Store Operations The griever was dismissed, effective February 13, 1985. Thereafter, on March 1, the grievor filed the grievance leading to the present proceeding.. 6. At the hearing, the Union submitted that the because the L.C.B.O. initially' advised the grievor that the final decision regarding his status as an ~employee would not be made. until dis- position of the criminal charges, it could not thereafter change its mind and dismiss the grievor before that time. (It was indicated by the Union that the grievor's criminal trial is 'now set for the week of September 16, 1985.) When the L.C.B.O. acted before final disposition, it was submitted, it subjected the grievor to a double penalty, something which~ is forbidden under generally accepted principles of arbitral jurisprudence'. The only~ course of action that was open to the L.C.B.O. when the McLaren award~was upheld'on judicial review, it was submitted, was to reinstate the grievor for the balance of the period of suspension whioh was struck down, i.e., until disposition of the criminal charges, and only thereafter decide upon, the grievor's status as an employee. It does not seem to the Board, however, that the reach of the double penalty doctrine is wide enough to embrace the circum- stances of the present case. Application of the doctrine has been limited to circumstances in which management, having made a final determination of what discipline to impose, thereafter seeks to reverse itself and impose more severe discipline. For example, in Re Oxford Pendaflex and Printing Specialties & Paper Products Union, Local 466 (19761, 14 L.A.C. (2d) 104 (Schiff), it was concluded that the company 'was barred from discharging the grievor because he had earlier been disciplined with a suspension for'the same ~conduct. The Board said: 7. On the evidence we therefore find that Woods imposed a short suspension on Friday, in that Hoinkes, Wood's superior, after reviewing Kowba's record, then dis- charged him for the same offense the following Monday. This Hoinkes was not permitted to do. Woods may have acted without full knowledge of the record. 'Or he may have mistakenly assessed how serious the record was. But neither, even if established, justified Hoinkes' action. Whatever might be the explanation for what Woods did and whatever might have been a more appro- priate penalty at the time, many arbitral awards make.' clear. that, after a responsible respresentative of an employer levies a particular degree of discipline, no representative superior to him may rightfully substitute discipline more severe. [citing cases;] Id.. at pp. 107-8 was concluded that imposition of less severe discipline by a esponeible representative of.man$gement barred more severe dis- ipline for the,same offense , even if more severe discipline was ustified by evidence which was not available to manaqeme.nt when k? less severe discipline was imposed. The double penalty doctrine has not been applied to interim anctions, where management has .yet to impose final discipline. his was acknowledged in Brown and Beatty, Canadian Labour ebitration, when, after discussion of the double penalty doctrine, t was stated that "The rule would be.otherwise if in imposing an initial sanction, it was established that,no final decision as fo :B.O.'s the disciplinary penalty had been made by the employer." Id. at p. 473. frms of - I :set, 3 to f t jn I 'the I i on ie. md ruity I :om and , ; In Similarly, in Re McManus and Treasury Board (1980), 25 L.A.C. (2d) irom 150 (Adams), it was held that it was not double jeopardy or a double !erdtion penalty to suspend an employee pending investigation, and then later Tent dismiss him. The arbitrator said, "The dismissal cannot be upset I, s on the basis of double 'jeopardy. The, suspension was not imposed sved 8, as a final decision, and, thus, the dismissal cannot be viewed as ,. . 9. and finally resolved. In this sense, the actions of the L.C.B.O. in this case might be said to have served the Labour Relations po,licy favouring the quick settlement of disputes. The preliminary objection is dismissed. DATED at London; Ontario, this 4th day of September, 1985. Roberts, Vice Chairman 11 . 11 (see attached) P. Craven, Member "P. D. Camp" P. D. Camp,Member . I , Re: 1701/04~ MB& (Drurv) In my respectful opinion, the grievor's preliminary submi ssi on must succeed. Here the griever was suspended pending his criminal tri aI. When he grieved the suspension his employer, which had apparently failed to inform 'itseIf about all the circumstances leadinq to the criminal charges, was unable to establish .just cause. The griever was reinstated with compensation. The emblover aoplied for judicial review, and the court, having heard the merits on the consent of the oarties, uphel,d the award. The emplover then dismissed the griever, saying that it .was now in possessi on of additional facts which had not been placed in evidence before the panel that determined the suspension. Clnalysis of this sequence of events, is complicated by the fact that the griever was originally suspended pending trial. It is helpful to begin by asking what would have been the result had the employer dismissed the griever in the first instance. I think it is self evident that had the empIoyer failed to satisfv a board of arbitration that it had just cause for the dismissal, because it had failed to inform itself about all the circumstances, it could not be permitted to dismiss the griever a second time in connection with the same alleqed misconduct when it belatedly informed itself of facts that had been available all along. Similarly we might ask what would have been the result had the employer sought ,to impose a second suspension without pay pending trial, saying again that it was now in possession of facts which it might have put before the panel which determined the original s&pension, but did~ not. Here again the matter would be res judicata. The c.ase before us7 where the grievor~successfully contested his suspension and has now been dismissed, cannot be distinguished from these two hypothetical situations. Where the employer has failed to establish just cause for discipline because it has failed to inform -itself of relevant facts, it cannot reimpose discipline when, at some later date, it has rectified this omission. The argument that the earlier suspen~sion was an interim form of discipline is not relevant in the present fact situation. It is true that in his letter of 30 Januarv 1984, Mr Rankin wrote the griever that .he was suspended "pending a review by the Board of the circumstances which led to your arrest . . . U Had no more been said there might have been some merit in the .arqUment that discipline could still be, imposed once the employer had put itself in possession of the facts, notwithstanding the successful