GSB # 0157/98
OPSEU # 98A354
IN THE MATTER OF AN ARBITRATION
Under
THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT
Before
THE GRIEVANCE SETTLEMENT BOARD
BETWEEN
Ontario Public Service Employees Union
(Holmes)
Grievor
- and -
The Crown in Right of Ontario
(Ministry of the Solicitor General and Correctional Services)
Employer
BEFORE Maureen K. Saltman Vice Chair
FOR THE Nelson J. Roland
GRIEVOR Barrister & Solicitor
FOR THE Christopher Jodhan
EMPLOYER Counsel, Legal Services Branch Management Board Secretariat
HEARING October 20, 1999
INTERIM AWARD
The Grievor in this case, Dene Holmes. who was employed as a Correctional Officer at the Sudbury Jail, was discharged on February 11, 1998 for alleged misconduct involving a female inmate.
At this juncture, the Employer seeks to introduce evidence of alleged misconduct which post‑dates the discharge, either as an independent ground for discharge or as a factor to be taken into account in the exercise of the Board's remedial authority. More particularly, the Employer seeks to introduce evidence to establish that the Grievor consorted with a known prostitute who was an ex‑inmate of the Sudbury Jail (although it was common ground that the Grievor did not know that the woman had been an inmate of the Sudbury Jail); and that the Grievor impersonated a Correctional Officer. The nature of the evidence the Employer seeks to tender is that on February 10, 1999, in the course of a police surveillance, the woman in question was observed getting out of the Grievor's truck. The Grievor was stopped by the police and asked for identification, in response to which, he produced a driver's license, ownership and insurance. As the Grievor was looking for his identification, the police constable noticed a badge. When questioned as to the badge, the Grievor “advised he was a Jail guard”.
The Union objects to the introduction of such evidence on the grounds, among other matters, that (1) the conduct complained of does not constitute a criminal, or even a disciplinable, offence; and (2) the Employer has no legitimate interest in the conduct complained of, as (i) there is no connection to the Employer's business: and (ii) the conduct is unrelated to the original grounds for discharge. In any event, the Union submitted that the prejudicial effect of this evidence far outweighs its probative value.
Although, as a general rule, in arbitration proceedings, an employer will be held fairly strictly to the grounds advanced at the time of discharge, are exceptions, including grounds which occurred prior to discharge but which were not known, and could not have been known, at the time of discharge: see Re United Steelworkers of America and Aerocide Dispensers Ltd. (1965), 1965 CanLII 980 (ON LA), 15 L.A.C. 416 (Laskin). In this case, however, the additional grounds were alleged to have occurred subsequent to discharge. Although the Employer submitted cases in which post‑discharge misconduct was relied upon as an independent ground for discharge as (1) the misconduct was, of course, unknown to employer at the time of discharge; (2) the new ground was not "wholly disconnected" from the original grounds for discharge; and (3) the union and the grievor were afforded a full opportunity at the hearing to address the new ground (Re Canadian Airlines Int'l Ltd. and C.A.L.P.A. (1988), 1988 CanLII 9146 (BC LA), 35 L.A.C. (3d) 66 (Munroe); Re McRae Waste Management Ltd. and I. U. O E., Loc. 115 (Galloway) (1998), 1998 CanLII 30022 (BC LA), 73 L.A.C.(4th)174 (McEwen), in which the conduct in question was also considered in the exercise of the Arbitrator's remedial authority), these are cases which involved matters going to the heart of the employment relationship, namely, participation in a illegal work stoppage, in McRae Waste Management, and the inability of an airline pilot to function effectively due to stress (a matter, it should be noted, which arose from psychiatric evidence called by the union to excuse the original grounds for discharge), in Canadian Airlines. Similarly, in Re Uncle Ben's Tartan Breweries (B.C.) Ltd. and United Brewery Workers, Local 359 (1975), 1975 CanLII 2162 (BC LA), 8 L.A.C. (2d) 109 (MacIntyre), the instigation of an illegal strike by an employee subsequent to his discharge, but prior to the filing of a grievance, was relied upon as an independent ground for discharge. In Re Ethyl Canada Inc. and Chemical Workers Union, Local 300 (1984), 1984 CanLII 5201 (ON LA), 13 L.A.C. (3d) 325 (Welling), however, even where the post‑discharge conduct involved violence on the picket line, the Arbitrator refused to consider this conduct as an independent ground for discharge, although it was taken into account in the exercise of his remedial discretion. Finally, in OPSEU (Paulley/Bechard) and The Crown in Right of Ontario (MOT), GSB 1171/1172, a subsequent application for employment in the Ontario Public Service by one of the grievors, which misrepresented the reason for termination from her previous employment (which was the subject‑matter of the grievance before the Board), was taken into account, in the exercise of the Board's remedial authority, on the grounds that such application undermined the trust relationship essential for reinstatement to the grievor's former position.
In all of these cases, however, whether the post‑discharge conduct was taken into account as an independent ground for discharge or in the exercise of the Arbitrator's remedial authority, there was, it seems, a clear connection to the employment relationship. Three of the cases (McRae Waste Management, Ethyl Canada and Uncle Ben's) dealt with participation (and even instigation) of an illegal strike; the other two (Canadian Airlines and Paulley/Bechard), with conduct which compromised the employees' ability to carry out their job functions. In addition, in at least one of the cases (Uncle Ben's), the post‑discharge conduct arose in close proximity to the discharge and prior to the filing of the grievance and, in another (Canadian Airlines), the post-discharge conduct, which came up at the arbitration hearing, reflected on the grievor's state of mind at the time of discharge.
In contrast, in the case at hand, the post‑discharge conduct on which the Employer seeks to rely relates to an incident, which took place a full year after the date of discharge and would appear unrelated to the original grounds for discharge and to Employer's legitimate interests. Although the Employer maintained that contact with a prostitute was in conflict with the Grievor's employment obligations and that the exchange with the police officer, in which the Grievor responded to questions, rather than proffered his badge as a form of identification, was tantamount to impersonating a Correctional Officer, in our view, the facts, even if proven, fall short of supporting these conclusions. In the circumstances, therefore, the Board finds that the post‑discharge conduct in question is simply too remote to be considered in these proceedings. Moreover, consideration of these grounds at this juncture would deny the parties an opportunity to deal with the matter in the more reflective atmosphere of the grievance procedure. In the result, the Board declines to consider the post-discharge conduct either as an additional ground for discharge or in the exercise of its remedial authority.
The Board will remain seized until this matter is finally resolved.
Dated at Toronto, this 11th day of February, 2000.