Ontario Public Service Employees Union (Lewis) v. The Crown in Right of Ontario (Ministry of Education and Training), 2000 CanLII 20535

GSB # 1222/99, 1223/99

OPSEU # 99E119, 99E120

IN THE MATTER OF AN ARBITRATION

Under

THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT

Before

THE GRIEVANCE SETTLEMENT BOARD

BETWEEN

Ontario Public Service Employees Union

(Lewis)

Grievor

• and -

The Crown in Right of Ontario

(Ministry of Education and Training)

Employer

BEFORE Randi H. Abramsky Vice Chair

FOR THE George Richards

GRIEVOR Grievance Officer

Ontario Public Service Employees Union

FOR THE Ben Ratelband

EMPLOYER Counsel Legal Services Branch Management Board Secretariat

HEARING February 17, 2000

AWARD

The grievor, Mr. Earl Lewis, was discharged by the Ministry of Education and Training on August 17, 1999 for allegedly soliciting private companies for charitable donations on behalf of the Ministry and a charitable organization, then expropriating the donations for personal use. At the outset of the hearing in this matter, a preliminary issue arose concerning whether evidence obtained by the employer of additional examples of such alleged solicitation which occurred prior to the grievor’s discharge but discovered afterward are admissible into evidence.

Facts

In late July 1999, the Ministry was advised about allegedly improper activities by the grievor and began an investigation. According to Scott Macklem, Staff Relations Consultant with the Ministry, by August 8, 1999, the Ministry had received information that the grievor, utilizing Ministry letterhead, had made solicitations to three companies purportedly on behalf of a well-known charity, that the grievor did not represent that charity and that he kept the donations for his own personal use. On August 17, 1999, the grievor was interviewed about these allegations. During that interview, he initially denied but later acknowledged that he solicited from the three companies. When asked if any other companies had been solicited, he acknowledged that there might have been a fourth company as well. Based on the information the Ministry had as of August 17, 1999, the grievor was discharged.

The letter of discharge, dated August 17, 1999 and signed by Victoria McArdle, Acting Director, Independent Learning Centre, states, in pertinent part, as follows:

It has come to my attention that you have solicited private companies for charitable donations. The letters requesting the donations were written on the former Ministry of Education and Training letterhead. These solicitations were for the purported benefit of a well-known charity. The Charity has confirmed that you are not acting on their behalf. You then expropriated the donations for your own personal use.

Pursuant to Section 22(3) of the Public Service Act, this will advise you that you are hereby dismissed form your employment as a Learner Services Officer with the Ministry of Education, effective August 17^th, 1999.

The fact hat you have misrepresented yourself, on behalf of the Ministry and the Charity, to these private businesses, for your personal financial gain, constitutes serious misconduct and is a breach of the trust placed in you by the Employer. Furthermore, your actions had the potential to cause serious damage to the reputation of the Ministry of Education. After careful consideration, I have decided to dismiss you for all of the above reasons.

According to Macklem, in light of the grievor’s statement that a fourth company may have been solicited, the Ministry decided to conduct a further investigation, even though it felt that it had sufficient grounds to terminate the grievor.

An auditor to review the grievor’s computer was not available until late August. The investigation proceeded into the fall and was completed on December 3, 1999. The final investigation report, however, was not disclosed to the Union, however, until February 14, 2000, two days before the first scheduled day of arbitration. The investigation purportedly reveals additional examples of the same type of solicitation.

On August 18, 1999, a grievance was filed alleging unjust dismissal. On August 27, 1999, Macklem wrote a letter to Union Steward Jim Biggar confirming an agreement to extend the time limits at Stage 2 until September 15, 1999, and stating that “pursuant to Article 22.14.4, the Employer will provide the Union with a full disclosure of the facts and issues in dispute before the meeting.” Article 22.14.4 provides as follows:

The parties agree that 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 the facts relied upon by management in a decision that is subject to a grievance, are key elements in amicable and expeditious dispute resolution processes.

Also relevant is Article 22.14.5, which provides as follows:

The parties agree that at the earliest stage of the grievance procedure, either party upon request is entitled to receive from the other, full disclosure.

Shortly before September 15, 1999, Macklem called Biggar seeking to postpone the Stage Two meeting because the investigation was not concluded and more time was needed to complete it. Macklem testified that he informed Biggar that the Ministry had gathered additional information, that it was continuing to gather information and that he did not know when the investigation would be concluded. He stated that Biggar wanted a timely Stage Two meeting because the grievance involved a discharge and the grievor was without income.

On September 24, 1999, Jim Biggar wrote a letter to Macklem, which states, in pertinent part, as follows:

You finished the Earl Lewis investigation on the date of dismissal. We would ask you to provide a copy of the investigation report on which the dismissal was based. You cannot dismiss first and find evidence afterwards.

A week ago Tuesday you indicated that your compute crashed and that the report would be delayed until Friday when you would have Legal Services look at it before releasing it to the Union. Then on Tuesday of this week you informed me that the investigation is ongoing and that it will not be completed for at least two more weeks. However, in the meantime, Earl Lewis and his family are suffering because of the loss of income.

Pursuant to Article 22.14.4 and 22.14.5 we demand full disclosure of the evidence on which the dismissal decision was based and that it be turned over immediately, and further that the Stage 2 meeting take place within 5 working days.

On September 28, 1999, Macklem responded by letter, which states in part as follows:

Enclosed per your request is a copy of the Ministry’s fact finding report on the fraud investigation pertaining to ILC. This report contains a full disclosure of the facts that the Ministry relied upon with respect to Mr. Lewis’ dismissal on August 17, 1999.

This will also confirm that a Stage Two grievance meeting has been rescheduled for Tuesday, October 6, 1999…

Macklem testified that the report provided to the Union disclosed all the facts gathered up to August 17, 1999 and all the facts relied upon by the Ministry in making its decision to discharge the grievor, which included solicitation of three companies. In his view, the Union was aware that the investigation was still ongoing. He acknowledged that he did not specifically indicate at any time that any additional evidence obtained through the investigation would be relied upon to justify the grievor’s discharge.

Arguments of the Parties

The Union objects to the admission of the final investigation report and any evidence pertaining to allegations that the grievor engaged in inappropriate solicitation beyond the three incidents relied upon by the Employer to justify its decision to discharge the grievor on August 17, 1999. It submits that the Employer cannot, after the fact, add new allegations to support its discharge decision. It also submits that the Employer’s disclosure of additional allegations two days before the arbitration was untimely and in violation of the Employer’s obligation to provide “full disclosure of the facts…”

The Union asserts that as a matter of general arbitral principle, employers are restricted to the grounds relied upon at the time the discipline was imposed. In this case, it submits that the Employer is limited to the three incidents of alleged improper solicitation upon which it based its decision to discharge the grievor and cannot add the additional examples cited in the final investigation report.

The Union contends that under Articles 22.14.4 and 22.14.5, which are new provisions in the 1999-2001 collective agreement, the Employer has a contractual obligation to provide “full disclosure of [the] facts relied upon by management in a decision that is subject to a grievance.” It submits that the Employer repeatedly agreed to provide the Union with “full disclosure”, and on September 28, 1999, it provided a copy of a fact finding report to the Union with the assurance that “[t]his report contains a full disclosure of the facts that the Ministry relied upon with respect to Mr. Lewis’ dismissal on August 17, 1999.” The Union notes that there was no reference made to an ongoing investigation or that the Employer might rely upon additional allegations. In fact, the Union put the Employer on notice that it “cannot dismiss first and find evidence afterwards.” In these circumstances, the Union submits that both its assurances and the collective agreement bind the Employer to its original allegations.

The Union contends that the purpose of the requirement of full disclosure is to ensure that the grievor and Union are able to proceed through the grievance procedure in an informed manner, aware of the case it must meet. Only with knowledge of the “facts relied upon by management” can the Union properly advise and represent the grievor. It submits that there must be some consequence for the Employer’s failure to disclose or the provision will be rendered meaningless.

The Union further notes that the Employer, under the Public Service Act, has the ability to suspend employees pending investigation, with or without pay. It contends that since the Employer suspected, on August 17, 1999, that additional companies might have been involved, it could have, but chose not to, suspend the grievor pending further investigation. Instead, it chose to discharge the grievor based on the information it possessed at the time. Accordingly, in the Union’s submission, the Employer must live with the consequences of that decision, and cannot add additional allegations discovered after the decision was made.

In support of its contentions, the Union relies on Re Bruce Retirement Villa and Service Employees’ Union, Local 210 (1998), 1998 CanLII 30095 (ON LA), 75 L.A.C. (4^th) 256 (Watters) and Re Molson Breweries and Canadian Union of Brewery & General Workers, Component 325 (1994), 1994 CanLII 18647 (ON LA), 42 L.A.C. (4^th) 75 (Mitchnick).

The Employer submits that there are exceptions to the general principle that an employer is limited to the reasons relied upon at the time the discipline was imposed and that those exceptions apply in this case. First, it argues that the additional evidence it seeks to introduce involves further examples of the exact same type of misconduct and thus does not involve “new” or “changed” grounds at all. Second, it argues that the examples it seeks to introduce occurred before the grievor’s discharge but were unknown to the employer at the time because of the grievor’s own lack of candor. It submits that it would be perverse for the grievor to benefit from his own deception.

The Employer further contends that under Section 48(12) of the Labour Relations Act, an arbitrator has great discretion to admit evidence that is relevant and submits that the evidence in question is relevant to determining whether discharge was the appropriate penalty and to assess the true extent of the grievor’s alleged breach of trust. It suggests that the evidence should be admitted, with the weight to be afforded such evidence determined at a later date.

The Employer contends that the issue in this case has recently been addressed by the GSB in OPSEU (McQueen) and Ministry of the Solicitor General and Correctional Services (1999), GSB No. 0383/97 et al. (Briggs), and that the decision is binding per Blake et al. and Toronto Area Transit Operating Authority (1988), GSB No. 1276/87 et al. (Shime). The Employer also relies on Re St. Joseph’s Hospital, Hamilton and Ontario Nurses’ Association (1978), 1978 CanLII 3506 (ON LA), 17 L.A.C. (2d) 404 (H. Brown) and Re Ontario Hydro and Canadian Union of Public Employees Local 1000 (1988), 1988 CanLII 9218 (ON LA), 3 L.A.C. (4^th) 112 (Brent).

The Employer further contends that Articles 22.14.4 and 22.14.5 do not preclude the admission of the additional evidence in this case. It argues that at the time of the Stage Two meeting, the investigation had not yet been completed and thus “full disclosure” of the additional examples of improper solicitation was not possible. It argues that the Union was aware of the ongoing investigation yet still decided to proceed with the Stage Two meeting. It submits that the Union made no further requests for information. While counsel for the Employer acknowledged that there was some delay in providing the Union with a copy of the final investigation report (from December 3, 1999 until February 14, 2000), it argues that the delay was caused by case load issues and that, if needed, the Union could seek an adjournment.

Decision

The issue of whether evidence of additional incidents of alleged misconduct similar to the conduct for which a grievor was discharged, but discovered after the discharge, should be admitted into evidence was addressed by the GSB in OPSEU (McQueen) and Ministry of the Solicitor General and Correctional Services, supra. In that case, the employer sought to introduce evidence acquired after the grievor’s discharge that it learned through an investigation conducted by the Independent Investigation Unit (IIU). The employer sought to introduce the IIU report and background notes from the investigation as well as witnesses who were interviewed during the investigation. The employer sought to rely upon this information, which raised additional incidents of threatening and harassing behaviour similar to the conduct for which the grievor was discharged, as further grounds for just cause.

In her ruling, Vice-Chair Briggs relied upon the decision of Arbitrator Howard Brown in Re St. Joseph’s Hospital, Hamilton and Ontario Nurses’ Association, supra. In that case, the employer, after the grievor’s discharge, learned about additional incidents of alleged incompetency involving the grievor through a related proceeding before the College of Nurses. At the arbitration hearing, it sought to introduce and rely upon those additional incidents. Arbitrator Brown ruled that the evidence was admissible, stating at p. 406:

The general rule is that employers are held by arbitrators to substantiating their cases on the basis of the grounds on which they originally took the disciplinary action, and they are not allowed to submit evidence in support of reasons different than the stated basis for the disciplinary action. Nor is the employer entitled to submit evidence to justify the disciplinary action on new and unrelated matters to the action which precipitated the discharge.

Here … the evidence sought to be introduced concern incidents relating to the allegation of the grievor’s incompetency which were not within the knowledge of the employer at the time the decision to discharge was taken, nor was that knowledge available to it at that time. This evidence is not produced to support new or different grounds for discipline, but it is to be submitted as further examples of the reasons for the discharge and in corroboration of the reasonableness of the employer’s initial action. … The circumstances concerning the discovery of the evidence and the nature of that evidence may go to the weight to be attached by the board to such evidence, but what we are considering is whether the evidence is admissible before the board, and our view, based on the submissions, is in the affirmative, as it may go to the demonstration of the employee’s work performance prior to the discharge which is at issue in these proceedings.

Vice-Chair Briggs ruled that the “St. Joseph’s Hospital decision is similar to the matter at hand.” (Decision at p. 4) She ruled that she would hear the evidence since the information “only came into [the employer’s] possession three months after the grievor was terminated” and “relates to the reasons given for the grievor’s discharge, that is evidence regarding threatening and harassing behavior towards others including his co-workers.” (Decision p. 4). What weight, if any, the evidence should be given would be a matter of argument during final submissions.

Under Amalgamated Transit Union (Blake et al.) and Toronto Area Transit Operating Authority, supra, a decision by a Vice-Chair of the GSB is a decision of the “Board” and is binding unless there are “exceptional circumstances.” Thus, in the absence of “exceptional circumstances”, the decision in McQueen is determinative of the admissibility of the evidence in this matter. The Union, however, quite correctly points out that the collective agreement has changed from the one at issue in McQueen. The collective agreement now includes Articles 22.14.4 and 22.14.5. Accordingly, the issue is whether those provisions change the result in McQueen.

In arguing that the new provisions change the result in McQueen, the Union relies on Re Molson Breweries and Canadian Union of Brewery & General Workers, Component 325, supra. The collective agreement there provided as follows:

24.10 The issue to be arbitrated shall be the written statement of the grievance and the answers of the various management officials who have previously dealt with the matter.

Relying on this provision, the union asserted that the employer could not rely on a second alleged incident of theft that it discovered upon examining the grievor’s locker immediately after the grievor’s discharge. That matter was not raised as it could have been by the Employer during the grievance process. The arbitrator ruled, at p. 80, that Section 24.10 evidenced “an agreement by the parties to confine a particular arbitration to the matters raised in the grievance procedure.” Given the employer’s inexplicable failure to raise the second theft issue in that forum, the arbitrator limited the arbitration to “the basis originally dealt with by the parties” which did not include the second incident of alleged theft. (42 L.A.C. (4^th)at 81).

In my view, the contractual language in Re Molson Breweries is far more specific about the arbitration process than the language in Articles 22.14.4 or 22.14.5. The language in that case specifically limited the “issue to be arbitrated”, confining it to matters raised in the grievance procedure. In contrast, Articles 22.14.4 and 22.14.5 do not, by their terms, limit the scope of arbitration. Instead, Article 22.14.4 states that “the principles of full disclosure of issues in dispute as alleged by a grievance …and full disclosure of the facts relied upon by management in a decision that is subject of a grievance, are key elements in amicable and expeditious dispute resolution processes.” Article 22.14.5 states that “at the earliest stage of the grievance procedure, either party upon request is entitled to receive from the other, full disclosure.” Thus, the intent of the parties to limit the scope of arbitration strictly to those matters raised in the grievance procedure is not evident as it was in Re Molson’s Breweries, supra. Without a clearer expression of intent to limit the scope of arbitration, the GSB has jurisdiction to allow the admission of evidence that was not raised during the grievance procedure as long as the discretion is exercised in a proper manner. See, Re Bruce Retirement Villa and S.E.I.U., supra at p. 272-273.

Certainly, however, as the Union contends, there must be some remedy when these disclosure provisions are not followed. In an appropriate case, it may be that the failure to disclose evidence will result in its nonadmissibility. But where, as here, the evidence was not known at the time of the Stage Two meeting, I cannot conclude that such a remedy is appropriate.

At the time of the Stage Two meeting, the investigation had not yet been completed and the Union was advised of that fact. Fundamentally, the requirement to disclose set out in Articles 22.14.4 and 22.14.5 cannot pertain to information of which the Employer is not aware, nor is available to it at the time. The Employer must possess the information before a duty to disclose it may attach.

For the same reason, the fact that the additional allegations were not discussed in the grievance procedure cannot be deemed to undermine that process. In Re Ontario Hydro and Canadian Union of Public Employees, Local 1000, supra, the board of arbitration admitted evidence of the grievor’s activities regarding falsification of overtime and meal allowances in relation to two Hydro customers, Playtex and Mitel, which were not known at the time of discharge nor addressed in the grievance procedure. As to the impact of allowing such evidence on the grievance procedure, the board stated as follows at p. 126:

If such evidence is admitted, then in our view, given the circumstances outlined above, the grievance procedure does not become a sham and a mockery. The Playtex and Mitel information could not have been discussed or disclosed to the union at the time of the commencement of the grievance procedure in relation to the original allegations because the information was not available to Hydro Once the information became available and was evaluated by Hydro it was conveyed to the union, and certainly by the time of the commencement of this hearing there had been full disclosure. The union is therefore not taken by surprise by any of the Playtex and Mitel information, and has had the opportunity to prepare itself to meet the case which Hydro believes it can make.

The same rationale generally applies here. The additional information could not have been discussed or disclosed to the union at the time of the commencement of the grievance procedure because the information was not available to the Ministry. In this regard, it is relevant that the grievor did not disclose the additional information when questioned prior to his discharge on August 17, 1999.

I also conclude, under the specific facts of this case, that the employer did not waive any right it might have to rely on such additional evidence. When advised that the investigation was still ongoing, the Union’s response, quite understandably, was that the Stage Two meeting proceed since the grievor was without income, and it asserted that the employer was limited to the investigation done on the date of dismissal. On September 28, 1999, the employer agreed to schedule the Stage Two meeting and submitted to the Union a fact finding report which contained “a full disclosure of the facts that the Ministry relied upon with respect to Mr. Lewis’ dismissal on August 17, 1999.” That statement, so far as it went, was accurate, although it would have been prudent, in my view, for the Employer to have made reference to the ongoing investigation in the letter and reserve the right to add new examples of alleged solicitation that were uncovered in the investigation. The Employer’s letter of September 28, 1999, particularly in light of the Union’s letter of September 24, 1999, gives the impression that with the submission of the fact finding report, it provided the Union with “full disclosure.” Yet the unrefuted evidence of Mr. Macklem was that the Union was advised of the ongoing investigation and that the investigation was not complete at the time of the Stage Two meeting. Thus, it was implicit, though not explicit, that additional evidence might be uncovered in the investigation.

But once the final investigation report was completed and reviewed, the duty to disclose it to the Union arose. The completion of the report was, under Article 22.24.5, “the earliest stage of the grievance procedure” that the information was available. It should have been disclosed within a reasonable period of time thereafter. The Union, however, was not provided with the additional information until two days before the hearing. Why the investigation took four months to complete is not clear in the record, and there was a further delay of more than two months to provide a copy of the final investigation report to the Union. Although I can appreciate the significant case load demands on counsel, there can be no question that advising the Union two days before the arbitration hearing that there are a number of additional examples of alleged misconduct that the Employer will be relying on to justify dismissal is insufficient. It is the kind of “surprise” that the requirement of disclosure is designed to avoid.

Under the specific facts of this case, however, and the fact that Articles 22.14.4 and 22.14.5 are new provisions which have not been interpreted before, the appropriate remedy for the delay in disclosure is not to preclude the admission of the evidence but an adjournment. Given, however, that our next scheduled day of hearing is not until May 12, 2000, there is no need for an additional adjournment.

For all the reasons set forth above, I conclude that the evidence in question is admissible into evidence. What weight, if any, that evidence should be given will be a matter for argument in the parties’ final submissions.

Dated at Toronto, this 10^th day of April, 2000.