GSB # 1568/98 OLBEU # OLB373/98
IN THE MATTER OF AN ARBITRATION
Under
THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT
Before
THE GRIEVANCE SETTLEMENT BOARD
BETWEEN
Ontario Liquor Boards Employees Union
(Pedneault)
Grievor
- and -
The Crown in Right of Ontario
(Liquor Control Board of Ontario)
Employer
BEFORE Felicity Briggs Vice Chair
FOR THE Craig Flood
GRIEVOR Counsel, Koskie & Minsky
Barristers & Solicitors
FOR THE Allison Renton
EMPLOYER Counsel, Legal Services Branch
Liquor Control Board of Ontario
HEARING September 1, 1999, January 19, 20, 25, 26,
February 2, May 30, 31, June 1, 6, 7 and 26, 2000.
Grant Pedneault worked in a variety of classifications for the Employer since 1974 before he was discharged from his position as Store Manager of the Fort Frances store. On November 17, 1998, he received a letter from Wayne Liddle, District Manager that provided, in considerable detail the Employer’s position. In total, it stated:
This letter is addressed in response to the two Notices Of Intended Discipline (NOID’s) dated November 2, 1998 for which you were relieved of duty with pay pending an investigation. The issue in question related to adherence to and ensuring adherence to the LCBO’s policy, “Payment Processing - TENDER THE SALE - US Funds” {IM-304—02}.
As recently as August 21, 1998, the US cash handling procedures were reviewed with you and you were provided written confirmation of my directives. You were to ensure compliance by all staff members of Store #69, Fort Frances, inclusive of yourself.
On October 23, 1998, a CSR under your charge failed to process US funds as per procedure. More specifically, while he was on cash the morning of October 23, 1998, a customer tendered $20.00 US for the purchase of a 750ml of Jim Beam bourbon (CSPC 21378) valued at $20.95. Instead of entering the cash tendered at $20.00 US, as would be proper procedure, he manually entered $29.60 Cdn and provided the customer with $8.65 in change (Canadian currency). This employee was asked to provide a written explanation of his actions.
Prior to receiving his written explanation, a meeting was scheduled for October 27, 1998, in Fort Frances, the objective of which was to meet with this CSR and with other permanent staff members of Store #69, to collect information pertaining to this incident.
At the time of the October 23, 1998 incident, allegations of wrongdoing only concerned the aforementioned CSR. Much to the LCBO’s great surprise and disappointment, all the concerned staff members admitted to long-term violation of this Employer’s policy on the proper handling of US funds.
Of grave concern was that CSR (alleged to have committed the violation of procedure) indicated that YOU had instructed him to collect $5 or $10 in US currency before lunch for your use across the border. You had admitted to this occurrence in writing. He also indicated that, as per my directives of August 21, 1998, you had reviewed his responsibilities re: the processing of US currency and that this procedure was to be adhered to from the point of your discussion.
You also acknowledged this fact. Despite this, on October 23, 1998, you gave him instruction to violate the proper handling of cash; you chose to favor your personal gain, to violate policy and a direct work order and to incriminate a co-worker under your charge.
In your written explanation to the NOID which issued to you regarding the incident of October 23, 1998, the only reason you could provide for your instruction to the CSR to collect US funds which constituted a violation of policy and my recent directive, was that you had forgotten my directive. In fact, you went on to state that “I never ordered him to do it, but only asked him to..”. As the Store Manager, how you asked would have little bearing - you are the supervisor, and as such the employees must comply.
In your written response to one of the NOID’s, you have stated that you became conversant of the proper handling of US funds and realized your wrong-doings as of the last update to the Administration Manual which was October 20, 1997. The policy which you received is entitled, “Introduction - United States Currency” {AM-0801-08}. One of the key revisions was relative to the “Purchasing of US Currency”. The policy reads, “Employees are not permitted to purchase US currency from any store for personal use”. Yet, despite your acknowledgment of becoming aware of your obligations and awareness of what you and your staff were doing relative to handling of some of the US cash tendered by customers, in lieu of ensuring the abolishment of the practice, or seeking advise from me on how to handle the matter, or even notifying me of the problem so that I may have dealt with the concern, you chose to continue to condone, participate and proliferate the practice. In addition, it has also been the discovery of the LCBO that you provided this “free exchange, no administration cost” of US funds to some retired employees of the LCBO.
You also indicated that it was a common practice in the stores in which you previously worked. The LCBO’s investigation finding have revealed that your alleged statement that this “common practice” in the stores in which you worked is unfounded. However, the last incident known to have occurred was in Store #230, Keewatin; this infraction was done by you for which your Store Manager had you provide a written correction to the LCBO’s accounting department. As far as Store #376, Clearwater Bay, you were the Summer Store Manager and therefore, you were in charge.
At a meeting of November 12, 1998 (Union Representation provided) you indicated that the collection of US currency only involved amounts in the order of $5 US to $30 US and that this practice was infrequent. The LCBO’s investigation reveals otherwise. The amounts exceeded this range on more than one occasion and were more frequent. On June 12, 1998, for example, while working on cash, you personally collected $100 US. In addition, the testimonies of the concerned employees of Store #69, are that you frequently requested the US funds be collected for your personal use when they were assigned by you to work on cash. Your statements are conflicting and as such the credibility of your testimony comes into question.
Also of great concern is the fact that you reported the incident of October 23, 1998, to be the one and only time that the collection of US cash was requested after my directives of August 21, 1998 to follow LCBO policy and procedure. The LCBO has evidence to show that there were several other infractions within this period.
SUMMATION
I have had the opportunity to review the facts at my disposal. I have also considered your 24 years of service with the LCBO, the last 4 years of which have been in the capacity of a Store Manager. I have considered your attendance record, which shows no evidence for concern and is commendable. Your performance and behavior as an LCBO employee have also been considered. I cannot overlook the fact that you have been charged and convicted of driving while under the influence and, as a result, your driver’s license was suspended; the suspension was extended for driving while your license was suspended; - this is not evidence of a socially responsible LCBO employee. In addition, I have considered your age (46years), the fact that you have no dependents and the re-employment opportunities in Northwestern Ontario in which you have resided.
When you accepted the position of Manager of Store #69, Fort Frances, as stated in your promotion letter, the LCBO asked that you take over all stock, cash and assets of the store as of your promotion date. As stated in the Store Security Manual, “The protection of LCBO funds is one of the most important responsibilities of the Store Manager and staff”. It goes on to read, “The Store Manager has full responsibility and accountability for all cash handling and banking….Note: Personal Use of LCBO funds is a serious offense” {SSM-103-02, Security of Cash/Merchandise, Cash}; “The importance of losses due to customer theft and dishonesty is a matter of concern for every Store Manager. The most effective method for minimizing losses due to staff dishonesty is to provide an atmosphere of clear standards, fairness, and consistency.” {SSM-0103-01, Security of Cash/Merchandise General}. As an LCBO employee, you have failed your responsibilities in this regard.
I have also taken into account that although you profess to be remorseful, you cannot be relied upon to comply with expectations despite how clear directives may be and, cannot be relied upon to follow through with your commitment. In fact, you have misled the LCBO in this regard. Your credibility has also come into serious question.
The acts that you performed were willful and premeditated. You knowingly violated LBCO policies and procedures and directives. There has been a serious breach of trust and there is no evidence to support that you could be entrusted in the future to fulfill your employment obligations. Consequently, having serious consideration to this matter, your services will be terminated as of this date. {emphasis not mine}
It was the Employer’s position that the grievor was discharged with just cause. In the alternative, if the Board is of the view that discharge was too excessive a penalty in the circumstances, this Board should exercise its jurisdiction to award compensation to the grievor in lieu of reinstatement to employment. In the further alternative, if reinstatement is awarded, the grievor should not be awarded a return to his position of Store Manager because there has been a irrevocable severing of the employment relationship.
The Union submitted in its opening statement that the grievor’s discharge was void ab initio because the Employer failed to provide Union Representative at the meeting that took place on October 27, 1998. However, the Union was content to have the evidence be heard in total by the Board and have its preliminary objection regarding void ab initio heard in final argument. In the alternative, it was the Union’s position that the grievor was discharged without just cause. It was acknowledged that some discipline is warranted for the grievor’s breach of policy. However, discharge was an excessive penalty.
Article 26.3 of the collective agreement states:
An employee who is required to attend a meeting for the purpose of discussing a matter which may result in disciplinary action being taken against the employee shall be made aware of the purpose of the meeting and his/her right to Union Representation in advance of the meeting. The employee shall be entitled to have a Union representative at such meeting provided this does not result in undue delay.
The Ontario northwest region is the largest geographical area for a district manager of the LCBO. There are a number of small stores in relatively isolated communities. It is for this reason that Mr. Liddle, the District Manager, does not get to visit each store as often as he might like. The majority of the stores in his area are C or D stores that have managers who are members of the bargaining unit.
According to Mr. Liddle, he had heard “rumours” that there was improper handling of US currency at the Fort Frances store. He was very concerned about these rumours and as a result, during a regular visit in August of 1998 to the Fort Frances store, he raised the issue with the grievor. At the end of that day, as he was leaving he stopped to speak with the grievor who was at a cash register. Mr. Liddle spoke of the rumours he heard and indicated that, if true, the activity was a violation of LCBO policy. He instructed Mr. Pedneault to direct his staff to cease any such practice and make them aware that the activity was a violation of policy. Further, Mr. Liddle told the grievor that he was going to have integrity shoppers in the area to ensure that his direction was followed.
In 1989, the Employer introduced the IMPACT system for all cash transactions. This is a sophisticated provincial system that provides tracking of all transactions. Amongst other features, the system is designed so that when US currency is tendered by a customer, the customer service representative only has to enter the amount of US cash tendered and the system automatically converts the US money into the Canadian equivalent and provides the necessary amount of Canadian change. The appropriate rate of exchange is established in the Toronto office and applies to every store across the province.
On October 23, 1998, Mr. Grant Pedneault and Mr. Bruce Rawn were scheduled to work in the Fort Frances store. While preparing the store for opening, the grievor asked Mr. Rawn to obtain some US currency for him that morning if any was tendered as he was going across the border for lunch that day. At approximately 11:00 a.m. an integrity shopper entered the store and tendered US cash for a purchase. The integrity shopper observed that the policy was not followed. Mr. Rawn did not punch the “US” button when he received the American currency. Instead, he calculated the appropriate Canadian equivalent according to the exchange rate and entered that amount as Canadian currency tendered. The integrity shopper then asked to speak with the grievor and was told that he had gone to the bank to make the daily deposit. The two quality assurance representatives then found the grievor and asked him to return to the store as quickly as possible because of a currency policy breach.
On October 23, 1998, Mr. Liddle was attending meetings in Toronto when he received a phone call from quality assurance informing him of a breach of currency policy by Bruce Rawn in the Fort Frances store. Accordingly, Mr. Liddle telephoned the grievor to find out what had occurred earlier in the day. Mr. Liddle told the grievor that he was responsible for issuing a Notice of Intention to Discipline to Mr. Rawn and suggested that he call Ms. Camille Clements-Pitchkur, the Human Resources Manager of the Northern Region, for assistance in this regard. He was told to send Mr. Rawn home immediately and he complied with that instruction and then found another employee to provide coverage.
Mr. Pedneault telephoned Ms. Clements-Pitchkur and told her of what had happened. She then drafted a NOID for the grievor to issue. She faxed the NOID to the grievor and had a further telephone discussion with him wherein she told him that he could not, under any circumstances, hand deliver the NOID to Mr. Rawn. She wanted the NOID to be delivered via courier but Mr. Pedneault was fairly sure that it was too late in the day to accommodate that request. He was correct and, as a result he mailed the NOID to Mr. Rawn.
The NOID sent by the grievor to Mr. Rawn stated:
As of this date, you are relieved of duty with pay as a result of failing to accurately process a cash transaction of American currency. More specifically, while you were on cash the morning of Friday October 23, 1998, a customer tendered $20.00 US for the purchase of a 750 ml of Jim Beam bourbon (CAPC21378) valued as $20.95. Instead of entering the cash tendered as $20.00 US, as would be proper procedure, you manually entered $29.60 Cdn and provided the customer with $8.65 in a change (Canadian currency).
This is not a disciplinary response but if the results of an investigation support disciplinary action, then you will be informed of such action.
Within three (3) calendar days from receipt of this letter, you are asked to submit a written statement, by courier, to my attention, Manager, Store #69, Fort Frances, explaining the matter mentioned above.
Should a meeting be scheduled following the receipt of your written statement, you are entitled to Union representation, since disciplinary action may result from the meeting.
If you choose not to respond as requested, management will act on currently available information.
A decision concerning this matter will be made known to you in due course.
That NOID was issued on October 23, 1998, the same day as the incident. There was a district manager’s meeting scheduled to take place in Fort Frances the following Tuesday. Between the issuing of the NOID and the manager’s meeting, the grievor spoke to Mr. Liddle a couple of times about other matters. During the intervening time the grievor received a response from Mr. Rawn that stated:
This letter is in response to your letter of October 23, 1998. I do agree with the details of that letter.
On the morning mentioned, after I arrived at work, I was asked by yourself to get $5 or $10 U.S. as you wanted to go to International Falls, MN. with a friend on your lunch hour. Later in the morning, a customer tendered a $20.00 U.S. bill as payment for a bottle. Thinking this would be satisfactory for your needs, I entered the $20.00 US as $29.60 Canadian.
I deeply regret my actions and apologize for any inconvenience caused to any and all concerned.
At the conclusion of the manager’s meeting of Tuesday October 27, 1998, at approximately 4:10 pm, according to Mr. Liddle, he met with the grievor. By all accounts, at the beginning of the meeting the grievor handed Mr. Liddle Mr. Rawn’s response to the NOID but Mr. Liddle did not read it. In fact, he did not read the response until after the conclusion of his meeting with the grievor.
Both Mr. Liddle and the grievor agreed in their evidence that the grievor began the meeting by saying that the matter was “all my fault”. Mr. Liddle took handwritten notes of the meeting that the grievor testified were essentially accurate. Those notes said, in full:
WAYNE Asked Grant to inform me as to what transpired at Store #69 with respect to the cashiering procedure in question.
GRANT It is my fault I guess, I asked Bruce if he could get me $5.00 US before I sent for lunch.
WAYNE Were you aware of this procedure going on in the store?
GRANT This has been going on before I got here, common practice before I became Manager.
WAYNE Have you processed US funds in this fashion in other stores prior to Store #69 Fort Frances?
GRANT Yes we always did it in the old Kenora store, Keewatin and Clearwater Bay where I was Acting Manager. Manager said it was okay. Bruce and Carl told me when I arrived that this has been going on forever. The Managers prior to me had done so also. Before P.O.S. you would give the customer the correct exchange. If you got say $300.00 during the day and if you wanted $20.00 you just bought it.
WAYNE Did you ever during these times think that you were violating any policy or procedure?
GRANT Not till last year when a change came. I think to the Administration Manual. Prior to that time I didn’t think that it was wrong.
WAYNE Have all your employees signed that they have read the amendment?
GRANT I believe so.
WAYNE Has anyone besides Carl and Bruce exchanged money this way?
GRANT Yes Cindy Gosselin - I don’t know how much they would have taken over a period of time, but the practice didn’t change because I was there.
WAYNE After my visit of August 21, 1998 did you review the US exchange cashiering procedure with the staff in the form of a staff meeting?
GRANT No, I just told them we weren’t to continue with this practice. Which they agreed to and I don’t think they did until Friday. I don’t know if they read the report or not. I think so. We would ring in Canadian equivalent customers was getting (sic) the right exchange. Then we would change with Canadian money when we found time.
WAYNE How many times would you do this during a month?
GRANT Once or twice or maybe three times but no large sums just $10.00, $20.00 maybe $30.00. I had a feeling it would quit sometime.
WAYNE So you never had a staff meeting to review my visitation or had employees sign my report?
GRANT No, but I think they had read it because they agreed to quit buying US funds with this procedure.
WAYNE How much money do you think you may have exchanged so far this year?
GRANT No much (sic) - no more than $100.00
WAYNE Anything else with regards to procedures not being followed that I should be aware of?
GRANT No I don’t think so.
In his evidence Mr. Liddle said that the purpose of this meeting was “to discuss the procedure issue about Bruce Rawn”. He testified that prior to the meeting he thought that he would ultimately recommend a counseling letter for Mr. Rawn and a review of the policy. He stated that there was “no disciplinary action thought of at the time”. At no point did he offer the grievor a union steward to assist him during this meeting.
In cross examination Mr. Liddle was asked why he did not make an offer of a union representative to the grievor during the meeting and he replied that he “felt that he had already blurted out the mistake he made and at the time a rep was four hours away in Thunder Bay if I could get one”. He made no phone calls to any Union representative or to any other management personnel to discuss the issue of union representation at any point during this meeting. When asked why he didn’t call a Union representative Mr. Liddle said that “it was the end of a long day and we were going to meet the next day for another district managers meeting”. Mr. Liddle was asked if it occurred to him to postpone the meeting until the next day when Union representation could be obtained. Again he said no despite the fact that he was going to be in Fort Frances on the following day. He said that “his day was already planned with the managers meeting and I was involved in staff training”.
Later in his cross examination when he was asked if it ever occurred to him that he should inform the grievor of his right to a steward he said that it had “towards the end of the meeting when I saw how serious it was becoming”. However, not even at this point did he stop the meeting. When asked if he put his mind to undue delay, Mr. Liddle said he did. He decided that he should continue because “my next two weeks were full up with managers meetings - I knew my schedule for the next three weeks and I had to hold the meeting to get to the bottom of the matter at hand”.
Mr. Liddle testified that he didn’t discuss with Mr. Pedneault his concern about whether Union representation should be offered because he thought the grievor had “experience and a history with the collective agreement”. Mr. Liddle “expected that he would know his rights under the collective agreement”. Finally, when asked if the grievor told him information that incriminated himself at this meeting, Mr. Liddle conceded that that he did.
For reasons that will be become apparent, I am not setting out the rest of the considerable evidence heard regarding this matter.
UNION SUBMISSIONS
Mr. Flood, for the Union, submitted that the discharge of the grievor must be found to be void ab initio because of the Employer’s failure to provide Union representation at the meeting held on October 27, 1998. Article 26.3 reads as follows:
An employee who is required to attend a meeting for the purposes of discussing a matter which may result in disciplinary action being taken against the employee shall be made aware of the purpose of the meeting and his/her right to Union representation in advance of the meeting. The employee shall be entitled to have a Union representative at such meeting provided this does not result in undue delay.
Mr. Flood reviewed the evidence of Mr. Liddle wherein he stated that he considered the issue of Union representative towards the end of his meeting with the grievor but that he continued because he knew that he was busy in the following two weeks and he simply “had to get to the bottom of the matter”. The provision in the instant collective agreement is mandatory and therefore it is not within the discretion of a manager to determine if his busy schedule overrides the rights of a member of the bargaining unit. Clauses such as article 26.3 are negotiated to ensure that employees have representation and advice at a time when they are most vulnerable, that is, when a potential disciplinary matter is being addressed. The jurisprudence specifically states amongst other things that an employee cannot be put into a situation where s/he might make incriminating statements without benefit of union representation. That is precisely what occurred in this instance. The grievor opened the meeting by stating that “it was all his fault”. Once that was said, there could have been no doubt in Mr. Liddle’s mind that the discussion taking place could bring about discipline. He admitted that this thought crossed his mind but he continued because he was a busy man.
In Re The Crown in Right of Ontario (Liquor Control Board of Ontario) and OLBEU (Lahay) (August 15, 1995), unreported (Gorsky), the grievor was asked to leave his cash register and proceed into the manager’s office. There were five people in total at the meeting and the grievor soon appreciated that one of the attendees was a police officer. The grievor was asked questions about a particular incident concerning the taking of money from the cash drawer. The grievor responded that he might have been making change for himself and when he was specifically asked by the police officer if that was his statement, he replied he had no statement to make. The grievor was then arrested for theft under $1,000. It was the Union’s position that this meeting was the beginning of the process leading to the Employer’s disciplinary response. It was the Employer’s view that the discussion that took place was not a “meeting” as considered by the provision in the collective agreement. Vice Chair Gorsky agreed with the Union’s view. There was also discussion about whether article 26.3 provides a substantive right to employees. He stated, beginning at page 50:
Although it is necessary to pay close attention to the wording of the particular provisions of the article said to have been violated so as to led to the conclusion that the discipline imposed is void ab initio, I am satisfied that art. 26.3 represents a substantive and not a procedural requirement in accordance with the line of cases following Milnes Fuel Oil Ltd. (above).
….Article 26.3 creates a substantive right which can only be waived by the employee involved. That right is to make the affected employee “….aware of the purpose of the meeting and his/her right to Union representation in advance of the meeting”. The grievor never waived his rights.
Continuing at page 53, he said:
The fact that the grievor was, by Exhibit 4, furnished with an opportunity to submit a written statement by registered mail explaining his actions with respect to the alleged improper cashiering procedures on May 4, 1994 does not overcome the breach of his rights under art. 26.3. His rights had already been breached by that time.
There is a seamless connection between the meeting of June 13, 1994, the grievor’s being suspended on that date (Exhibit 4) and his being terminated on June 23, 1994 (Exhibit 6). It is artificial to arbitrarily divide the process whereby a meeting was held on June 13 to discuss a matter which might result in disciplinary action being taken against the Grievor and events following which were inextricably associated with it: That is, to state that the June 13 meeting was insufficiently related to the discharge of June 23 in an endeavour to make the suspension effected by Exhibit 4 the only action of the Employer that was void ab initio. The events of the meeting of June 13th; the suspension imposed, and the discharge are so inextricably linked so as to taint not only the suspension but the discharge.
Vice Chair Gorsky also dealt with the issue of the Union’s delay in raising the argument that the discharge was void ab initio. In that regard he stated at page 57:
I have a problem, however, with awarding the Grievor benefits and compensation from the date of his being discharged. This is because of the failure of the Union, until May 25, 1995, to alert the Employer of its intention to rely on the failure to comply with art. 26.3 as a basis for making an application at the commencement of the hearing on June 5, 1995 to have the discipline declared void ab initio. It is one thing to find that the claim was subsumed in the grievance: See Alcan Wire and Cable, above, at p.10, and that it can be therefore be raised at the hearing. It is quite another thing to say that relief should always be related back to the time of the discharge. Ibid. at p.11.
In the case of a grievance that has been proceeded through the three steps of the grievance procedure, it would be expected that the issue relating to the Employer’s failure to comply with the provisions of art. 26.3 would, at some point in the procedure, have been raised by the Union. In this case, in the absence of prior notification by the Union, I find that the Employer only knew of the issue on May 25th. Because it was not informed of the issue before me until that date, it was deprived of the opportunity to consider its position in the light of the implications that were raised for the first time on May 25th. If it had the opportunity to do so during the normal functioning of the grievance procedure, it could have acknowledged its failure to comply with art. 26.3 at minimal cost and then proceeded to discharge the Grievor in compliance with the requirements of the collective agreement, as Mr. Drmaj suggested could be done. In raising this possibility, I am not saying that such an action would necessarily succeed.
If the Union had promptly raised the issue at an earlier point in time, as it should have, and the Employer had maintained its position, I would have had no problem with awarding compensation to the Grievor from the date of his discharge. However, in the circumstances before me, it would be unfair to do so, and I award compensation and benefits only from the date of notification (May 25, 1995).
In a later decision, Vice Chair Mikus was asked to consider the issue of whether hand-delivering NOIDs to employees renders any resultant discipline void ab initio. In re The Crown in Right of Ontario (Liquor Control Board of Ontario) & OLBEU (Franssen) (May 16, 1966) Mikus (unreported), the grievor was handed six NOIDs by his manager and the grievor made some comments to his manager at the time such as “the NOIDs were nonsense”. Two further NOIDs were issued via the mail. In considering the matter, Ms Mikus stated at page 8:
With respect to the first group, it is clear from the evidence that there has been a breach of article 26.3. Irrespective of the slightly different versions of the actual conversation between Mr. Poulin and the grievor, when Mr. Poulin elected to present the NOIDs personally to the grievor, he initiated a meeting to discuss matters that not only might lead to discipline but, in fact, were destined to result in discipline, given the nature of the allegations. In the circumstances, the grievor had no alternative but to meet with Mr. Poulin. He was not advised in advance of the purpose of the meeting, nor was he advised that he could have a Union representative assist him. Even though Mr. Poulin did not make any inquiries of the grievor, the fact is he put the grievor in the vulnerable position of possibly making statement against interest without the advice and assistance of a Union representative. That the grievor did not make any inculpatory statements is irrelevant to the issue. The fact is he could have and, if he had, the Employer, no doubt, would have relied on those admissions in determining whether to discipline the grievor. The NOIDs handed to the grievor on August 22, 1996, are therefore consistent with the jurisprudence, void ab initio.
For the same reasons, the September 16, 1996 NOIDs are void ab initio. The grievor was summoned to a meeting for the sole purpose of being handed additional NOIDs. Again, he was not advised before the meeting of the purpose of the meeting or of his right to Union representative. Even though the NOIDs were in an envelope and there was no discussion of the allegations themselves, the grievor was once again placed in the vulnerable position of being handed notices of intended discipline without regard to his rights under the collective agreement. It would have been natural in the circumstances for him to have inquired about the contents of the envelope. He knew he was in trouble by that time. There was a substantial risk that he could have made statements against interest during that meeting. If he had, again I have no doubt that the Employer would have relied on those statements at a subsequent arbitration hearing. Article 26.3 is very broadly worded. Any discussion with an employee that might lead to discipline is subject to the requirement that an employee be advised in advance of the meeting and the purpose and that he/she is entitled to Union representation. Given the number and seriousness of the allegations in the grievor’s NOIDs, it is safe to assume that the Employer would have to take action against the grievor. He was entitled to the protections under the collective agreement in the circumstances.
In the instant matter, Mr. Flood suggested, we have precisely the situation that both Vice Chair Mikus and Gorsky were concerned about. The grievor was asked to and did attend at a meeting with his manager. The grievor began the meeting by stating that the whole situation was his fault. There can be no doubt that the grievor was vulnerable. The rest of the meeting was about the grievor’s involvement in the matter. During the meeting he made inculpatory statements and Mr. Liddle conceded that he put his mind to the fact that the grievor probably should have representation. However, he was too busy to follow the procedure established in the collective agreement. Indeed, he continued to exact further damaging information from Mr. Pedneault.
The Union contended that it is not necessary for the Employer to know in advance that discipline will flow from the discussion held during a meeting. Article 26.3 is sufficiently broad to protect employees in this regard. The article considers an employee attending at “a meeting for the purpose of discussing a matter which may result in disciplinary action being taken against the employee shall be made aware of the purpose of the meeting and his/her right to Union representation in advance of the meeting”. In all of the circumstances of this matter, Mr. Liddle should have known of the likelihood of discipline because the meeting was held to discuss the NOID sent to Mr. Rawn which arose from transactions of US money. Mr. Liddle knew that there was discussion between himself and the grievor regarding this matter not two months previously. He must have considered a variety of possibilities. He must have wondered whether the grievor followed his instructions and told Mr. Rawn about the policy or whether the grievor knew of the transaction prior to the integrity shoppers reporting the matter. All of these possibilities must have been, or should have been, considered in advance of the October 27, 1998 meeting. It must be found that there simply was no attempt whatsoever to comply with the clear provision of the collective agreement.
The Union asserted that the right to Union representation is analogous to the right to counsel in criminal cases. These rights have similar purposes, that is, the right to counsel or representation and the right not to self-incriminate. In this regard the Union relied on Re Regina v. Sawatsky (1997) 1997 CanLII 511 (ON CA), 35 O.R. (3d) 767 (Court of Appeal for Ontario) (Catzman, Doherty & Moldaver JJ.A.)
Mr. Flood suggested that in the event the Employer argued undue delay it then bears the onus to show harm or some negative result flowing from the delay. In the instant matter, the Employer made no effort in attempting to reschedule the meeting. Mr. Liddle simply decided that he would finish meeting with the grievor without any effort to find Union representation.
It was the Union’s assertion that the breach of article 26.3 in this case in not incidental. It is the very key to the Employer’s case. The evidence that goes to the matter of just cause in these proceedings are those very facts that were initially admitted by the grievor in the meeting of October 27, 1998, both with respect to the events of October 23, 1998 and with respect to the practice in the Fort Frances store. Without the grievor’s admissions, the Employer’s case would have been very different. Further, in this matter, as in the LeHay (supra) case, there was a subsequent meeting to “mop up” the details flowing from the grievor’s initial statements. This Board should follow the Lehay decision and find that the second interview was the “fruit of a poisoned tree” and therefore should not be taken into account.
It was the Union’s view that the grievor’s discharge could be vitiated on this basis. In the alternative, the evidence improperly received as a result of its breach of article 26.3, must be excluded from deliberations as to the matter of just cause.
EMPLOYER SUBMISSIONS
Ms. Renton, for the Employer, reminded the Board that Mr. Pedneault had filed grievances in the past. Therefore he knew of his rights under the collective agreement. He knew there was a meeting on October 27, 1998, scheduled to discuss the circumstances surrounding the incident of October 23, 1998 involving Mr. Rawn. There was also evidence that Ms. Clements-Pitchkur spoke to the grievor about union representation during their telephone discussion regarding delivery of the NOID to Mr. Rawn. Mr. Liddle testified about the significant problems involved in obtaining union representation in the northern region. Further, no discipline flowed from the meeting of October 27, 1998. The NOIDs sent to the grievor were issued later in November. All of these facts must lead this Board to dismiss the Union’s request that the discharge be found to be void ab initio.
The Employer asserted that article 26.3 provides the right to union representation to an employee who is attending a meeting that is being held to discuss matters that may result in his own discipline. In the instant matter, the meeting was being held to discuss the possible discipline of Mr. Rawn, not the grievor. The meeting was not designed to discuss the grievor but to establish the facts surrounding Mr. Rawn’s indiscretion. There was no evidence that the Employer knew of the grievor’s involvement prior to the beginning of the meeting on October 27, 1998. Therefore the protection might not be automatic and in this case because of the unique circumstances, it does not apply.
It is for this reason that the Franssen and LaHay cases can be distinguished, the Employer contended. The matter at issue in both of those cases was whether the discussions were meetings as considered by article 26.3. In Franssen, Vice Chair Mikus found that there was a meeting when the NOIDs were hand delivered to the grievor. But it is important to note that the NOIDs were for the grievor, not for another employee. Mr. Pedneault did not receive a NOID on October 27, 1998. The only NOID at the time was the one he himself issued to Mr. Rawn. Similarly, Franssen does not consider a situation where one bargaining unit member goes to a meeting to discuss a different bargaining unit member. No inference can be drawn that the protection afforded by article 26.3 flows to a meeting held to discuss any employees actions.
In LaHay it was stated that the substantive right could only be waived by the grievor. In the instant matter the grievor knew about his rights under the collective agreement and he knew what the meeting of October 27, 1998 was about in advance. It was the Employer’s position that those facts should be taken to be tantamount to a waiver of the grievor’s rights.
Ms. Renton submitted that, in the event that I agree with the Union that the Employer breached article 26.3, in the circumstances of this case, I should decline to reinstate the grievor. In this regard the Employer relied upon Northwest Territories Power Corporation and Union of Northern Workers (1997), 1997 CanLII 25015 (CA LA), 72 L.A.C. (4th) 80 (T.Jolliffe). In that case, the Board found that there was a breach of a mandatory and substantive right to union representation but failed to reinstate the grievor because of his grave misconduct. The grievor had misappropriated in excess of four thousand dollars over the course of a number of months. There was a finding that the grievor was not given union representation in according with the substantive right found in the collective agreement. However, instead of reinstatement, an award of damages in lieu of reinstatement was made. It was the Employer’s position in the instant matter that such a remedy would be appropriate if a finding of a contractual breach is made.
The Employer also relied on Re Valdi Foods (1987) Inc. and United Food & Commercial Workers, Local 175 (1990) 1990 CanLII 12813 (ON LA), 16 L.A.C. (4th) 318 (Brandt); and Re Brink’s Canada and Independent Canadian Transit Union, Local 1 (1995) 1995 CanLII 18310 (CA LA), 47 L.A.C. (4th) 342 (Bluman).
Ms. Renton asserted that I should also take into account the matter of undue delay. The Union suggested that it would have been a simple matter for Mr. Liddle to end the meeting and reschedule it to a time when a union representative was available. This simply is not practical and the evidence on this point was clear. There are few representatives and the geographic realities of the northern region are such that there is a valid concern regarding undue delay. In any event, as the evidence of Mr. Liddle revealed, the grievor had “already blurted out” his involvement in the matter.
The Employer disagreed with the Union’s submission that it would have had insufficient evidence for a finding of just cause in the absence of the grievor’s admissions. The Employer had Mr. Rawn’s response to his NOID and statements of other employees in the Fort Frances store. That evidence would have substantiated a finding of just cause for discharge.
In reply, the Union referred to the Employer’s acknowledgment that the grievor was obliged to attend at the October 27, 1998 meeting. That obligation engages the first part of article 26.3. The grievor cannot be faulted for incriminating himself when attending a meeting that he is obliged to attend. The Employer had the obligation to advise an employee of his right to Union representation in those circumstances.
The Employer suggested that the grievor waived the right to representation because he knew that he was in trouble, that he might be ultimately disciplined and he attended the meeting in any event. The Union strenuously disagreed. There was no evidence that the grievor knew he had this right even though he had filed grievances in the past. There was nothing that would alert the grievor that he could have Union representation during his discussion with Mr. Liddle on October 27, 1998. This Board should take a purposive meaning of article 26.3.
Regarding the issue of undue delay, it was the Union’s view that it was up to the Employer to show some prejudice because of the delay and there simply was no such evidence. There was no explanation as to why the meeting had to held on October 27, 1998 except that Mr. Liddle was a busy man with a full schedule. That is not enough to establish undue delay. In this case, there is an assertion of undue delay in a factual vacuum. It can not be said by the Employer that there would have or could have been undue delay when the evidence was that there was never any attempt by Mr. Liddle to ascertain whether a union representative was available.
Finally, the Union contended that article 26.3 should not be given the narrow and self-serving meaning the Employer is suggesting. This Board should find that as soon as an employee begins to self-incriminate himself in a meeting certain rights must flow.
DECISION
The issues for this Board to decide in considering whether the discipline should be found to be void ab initio are:
◼ does the meeting of October 27, 1998 between the grievor and Mr. Liddle constitute a meeting as considered under article 26.3 which would provide the grievor with the right to be offered union representation?
◼ if so, did the grievor waive his rights to such notice?
◼ if not, did the discharge flow from the meeting of October 27, 1998?
◼ if so, was the failure to provide union representation offset because of undue delay?
◼ if not, what is the appropriate remedy?
This Board has twice addressed and made determinations about the language at issue in this case. Both awards made clear that article 26.3 is a substantive right. In LaHay, Vice Chair Gorsky did a considerable review of the jurisprudence. Mr. Gorsky had to consider whether the meeting held where by the Employer wherein the grievor was arrested by the police constituted a meeting as considered under article 26.3. In making that determination he set out some of the relevant case law. He cited Re Hickeson-Langs Supply Co. (1985), 1985 CanLII 5449 (ON LA), 19 L.A.C. (3d) 379 (Burkett). There was a quote from that decision which was found at page 392:
Although the meeting conducted between the company and Mr. Laidlaw was part of an investigation, the fact remains that it was a meeting with management within the meaning of either article 6.02 or 6.06, and that Mr. Laidlaw was denied the representation to which he was entitled; the purpose of which has been described in Re Canadian Canners Ltd. and International Association of Machinists (1974), 1974 CanLII 2266 (ON LA), 5 L.A.C. (2d) 323 (Brandt) [at page 325]:
….and ensure that the employee is fully advised of his rights and also to facilitate some discussion which might lead to an amicable settlement of the dispute, short of any formal action being taken.
In the face of the meeting have been conducted without Mr. Laidlaw having union representation, as he was entitled to, and consistent with the cases that have held that discipline subsequently imposed in this case is null and void if the employee’s contractual right to due process is ignored, we hereby find that the discipline is null and void. The parties negotiate certain safeguards with respect to the manner in which discipline is to be imposed and/or the employer is to confront the employee with respect to any other matter under the collective agreement. These safeguards are in the nature of a contractual due process. While it may seem unfair to the employer to have its actions found to have been null and void, the due process provisions are central to the representation provided under the collective agreement and, in our view, there is no other way to give real meaning to them.
Mr. Gorsky also quoted arbitrator Davis about the purpose of such provisions in Re Queen Elizabeth Hospital (1988), 1988 CanLII 9298 (ON LA), 2 L.A.C. (4th) 1, wherein she stated at page 6:
….such representatives will be in a better mental state at that moment to cope with the issue than the grievor and will be able to provide the grievor with timely advice.
Ultimately, Mr. Gorsky decided that the meeting held was a meeting that would “trigger” the substantive right of article 26.3. Ms. Mikus in Franssen decided that the hand delivering of NOIDs to a grievor constituted a meeting as considered in article 26.3. As is clear from the quote set out earlier herein, she relies heavily on the purpose of the provision in arriving at her determination as to whether that encounter was a meeting.
In the instant case, there is no dispute that a meeting was held on October 27, 1998. However, it is the Employer’s position that because the original purpose of the meeting which was made clear to the grievor in advance, was to discuss Mr. Rawn’s actions, Mr. Pedneault was not entitled to union representation as considered by article 26.3. I must disagree. The mere fact that the original intention of the meeting was to discuss Mr. Rawn does not constrain or eliminate the grievor’s rights. As was said by Ms. Mikus in Franssen, article 26.3 is “very broadly worded”. She went on to say that “any discussion with an employee that might lead to discipline is subject to the requirement that an employee be advised in advance of the meeting and the purpose and that he/she is entitled to Union representation”.
If it had happened at the October 27, 1998 meeting that once the grievor said “it’s all my fault”, Mr. Liddle stopped the meeting and informed the grievor of his right to union representation and the Union was now arguing that the Employer’s failure to notify the grievor in advance of his right to representation then this might well have been a different matter. In this case, I do not fault the Employer for not telling the grievor in advance that he had the right to representation. However, this issue is not that narrow. In this case the grievor attended at a meeting that was not optional and the very instant that the grievor said the matter was “all his fault”, the focus of the meeting and of Mr. Liddle’s attention shifted from Mr. Rawn to Mr. Pedneault. This complete turning of events changed the meeting into one which triggered the rights found in article 26.3.
The second issue to address is whether the grievor waived his rights under article 26.3 when he attended at the October 27, 1998 meeting and did not request union representation. Simply put, the answer is no. The grievor was instructed by his district manager to attend at a meeting. It was not an invitation that the grievor could refuse at his leisure. He was expected to attend and he did. Therefore, his mere participation in the meeting cannot be held against him. The Employer suggested that Mr. Pedneault knew he was in trouble and yet he attended the meeting in any event. That may be. However, his opinions as to what might occur at the meeting did not relieve the Employer its obligations under article 26.3.
The Employer further argued that the grievor was a sophisticated member of the bargaining unit. He testified that he had grieved in the past and therefore he must have known his rights under the collective agreement including his right to union representation. His failure to have such representation or request it constitutes a waiver. Again, I disagree. I have no evidence that the grievor knew of his rights under article 26.3 prior to his going into the meeting of October 27, 1998 and even if that evidence was presented it does not take away from the clearly stated responsibility of the Employer to make an employee aware of his/her right to union representation. Setting aside the employer’s responsibilities for a moment, a finding of waiver would require knowledge of a right and a clearly stated intention to waive that right. I cannot find that the grievor waived his rights under article 26.3 in the present matter.
The third issue is whether the grievor’s discharge flowed from the meeting of October 27, 1998. It was the Employer’s position that no discipline flowed from that meeting. It took the position that the NOIDs that the grievor received were not issued until November and his discharge was not until November 17, 1998. I cannot accept that there was no discipline that flowed from the October 27th meeting between Mr. Liddle and the grievor. Indeed, even a cursory review of the letter of termination reveals that many of the facts the grievor admitted to during that meeting were relied upon by the Employer in its decision to discharge. In his decision in LaHay, Mr. Gorsky referred to a “seamless connection” between the meeting at issue and Mr. LaHay’s suspension and ultimate discharge. I agreed with his view that “it is artificial to arbitrarily divide the process whereby a meeting was held…to discuss a matter which might result in disciplinary action being taken against the grievor and the event following which were inextricably associated with it”. In my view, the discharge of the grievor was the end of a process which began during the meeting of October 27th.
The next matter to address is whether the failure to provide union representation was mitigated because of undue delay. It was the Employer’s submission that the right to representation in article 26.3 is not automatic. It is constrained by the end of the provision that states “the employee shall be entitled to have a Union representative at such meeting provided this does not result in undue delay”. To be clear, the Employer argued that the right to union representation is “not automatic”. In my view, it is unnecessary for me to determine this matter because the part of the article violated by the Employer was its obligation to inform the grievor of his right to a representative, not the Employer’s failure to provide that representation. Undue delay would be an appropriate matter for my consideration if the Employer told the grievor of his right to Union representation and then refused to provide it. However, if I am wrong in that view, there simply is no evidence before me that there would have been undue delay in this case in order to provide the grievor with representation. It is true that I heard that Union representatives are few and far between in the northern region. However, Mr. Liddle made no effort at all to see if representation could be arranged. He candidly admitted that it occurred to him well into the meeting that perhaps the grievor should have a Union representative but he did not even stop the meeting at that point. He did not make one phone call. He continued without hesitation because he wanted to get to the bottom of the matter and his schedule for the following two weeks was busy. The busy schedule of a manager is certainly not sufficient to establish undue delay for the purposes of article 26.3. The employer’s need to “get to the bottom” of an important issue cannot override substantive employee rights that were negotiated to protect employees from situations just like the instant case, that is where an employee is ultimately discharged or otherwise disciplined. I find there was no undue delay in this matter.
Therefore, I am of the view that the Employer violated article 26.3 when it failed to advise the grievor of his right to union representation at the meeting of October 27, 1998 and that the resultant discharge is void ab initio. The Employer urged this Board to provide a remedy other than reinstatement in the event of such a finding and relied upon Northwest Territories Power (supra). In that case, arbitrator Jolliffe said at page 108:
To award the grievor only damages in these circumstances of breached mandatory, substantive right to Union representation, as opposed to requiring his reinstatement, is an exceptional remedy. It flows from my conclusion that the grievor’s admitted wrongdoing of delaying, misapplying and then misappropriating altogether many customer payments is of the gravest nature. I note also the level of his responsibilities, his position of trust as the only full-time Corporation employee stationed in Lake Harbour, and his own evidence that if reinstated he would not want to continue performing the required financial/customer service aspects of his job. Successful reinstatement is not realistically obtainable. I consider that the damages should be assessed on the basis of what is fair and reasonable in the circumstances having regard to the grievor’s length of service, significance of his position with the Corporation and poor chance or any re-employment within the community in any equivalent work.
Taking all these matters into account, I award the monetary equivalent of four months’ salary being earned at the time of dismissal with interest thereon and with appropriate deductions to be made for any earnings in mitigation during that period of time. The award is also subject to the Corporation’s obligation to comply with any statutory requirements such as unemployment insurance payback obligations.
After much consideration I do not consider this a case that is so exceptional that I would stray from the usual path of reinstatement. The fact that were present in the Northwest Territories case are different from those before me. For example, in that case, the grievor had four years of service with one disciplinary reprimand. In the instant matter, Mr. Pedneault has worked for the Liquor Control Board for twenty four years and has had a clean record throughout. Although the grievor would return to a position of trust, I am confident that he can meet the Board’s expectations in this regard. I found the grievor to be genuinely contrite and I suggest he will make the most of a second chance.
For those reasons, the discharge is void ab initio. The final issue to be addressed is what effect, if any, should the Union’s delay in raising this matter with the Employer have upon the remedy. The Employer was notified of the Union’s intention to raise the issue of article 26.3 sometime in May of 1999, some six months after the date of the discharge. This matter was discussed thoroughly by Vice Chair Gorsky in LaHay and I do not intend to stray from that decision. Accordingly, the grievor is to be reinstated to his position (including location) as of the date the Union notified the Employer of its intention to raise this matter. The grievor is entitled to full compensation, benefits and seniority as of that date.
I remain seized in the event there are any difficulties implementing this decision.
Dated at Picton, this 8th day of August, 2000.