GSB #0867/00
IN THE MATTER OF AN ARBITRATION
Under
THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT
Before
THE GRIEVANCE SETTLEMENT BOARD
BETWEEN
AMAPCEO
(Worku)
Grievor
- and -
The Crown in Right of Ontario
(Ministry of Finance)
Employer
BEFORE Nimal V. Dissanayake Vice Chair
FOR THE Stephen Krashinsky, Counsel
GRIEVOR Sack, Goldblatt, Mitchell
Barristers and Solicitors
FOR THE Lucy Siraco, Counsel
EMPLOYER Legal Services Branch
Management Board Secretariat
HEARING December 1 and December 18, 2000.
PRELIMINARY DECISION
Mr. Habte Worku has filed a grievance dated June 16, 2000, claiming that he has been discharged by the employer contrary to the provisions of the collective agreement.
Mr. Worku was employed as a mediator at the Disputes Resolution Group in the Financial Services Commission of the Ministry of Finance. His job involved mediation of disputes between insurance companies and individuals who had suffered injury in motor vehicle accidents. Mr. Worku’s discharge followed a complaint by a female employee of an insurance company that (1) on February 14, 2000, he made sexual advances to her while alone in a meeting room and (2) that on February 17, 2000, in a similar situation, he put his hand behind her neck and forcibly kissed her on the lips. These alleged incidents (hereinafter referred to as the “February 2000 incidents”) were the subject of an investigation by an investigator appointed by the employer, Ms. Margaret Buffington of Buffington & Associates, a private investigation firm. Ms. Buffington conducted her investigation pursuant to the employer’s WDHP Policy. She completed the investigation and issued her report to the employer on April 25, 2000, wherein she concluded that the allegations against Mr. Worku had been substantiated.
Following the issuance of Ms. Buffington’s Report (“the Report”) Mr. Worku was issued a letter of termination dated May 19, 2000, which in part read:
Re: Notice of Termination of Employment
This letter will serve to confirm the matters discussed between you and Financial Services Commission Management earlier today.
On February 21, 2000 the Financial Services Commission of Ontario received a report from an Insurance Company regarding incidents in two mediation meetings which you had with one of their Claims Managers (one on February 14 and the other on February 17, 2000) alleging you assaulted the Claims Manager.
As per the Ontario Public Service’s Workplace Discrimination and Harassment Prevention Operating Policy, the matter was referred to an independent third party, Buffington and Associates, for investigation. Interview were conducted and you were afforded the opportunity to respond. However, in your response you were unable to provide any evidence or raise any substantive issues which disproved the allegations.
Your conduct on February 14 and February 17, 2000 was inappropriate and constitutes a serious violation of the Workplace Discrimination and Harassment prevention Operating Policy. You assaulted a member of the public whom we serve and such behaviour cannot be tolerated. You have violated the trust the Financial Services Commission of Ontario has placed in you as its representative and you have caused the reputation of the Commission to be called into question.
FSCO Management has taken into consideration the credibility of the statements provided and the conclusions of the investigator, who substantiated the allegations, and we have concluded that the appropriate disciplinary response is termination.
Accordingly, this letter will confirm that your employment with the Financial Services Commission of Ontario is terminated for just cause, effective immediately.
The grievor denies that he engaged in the alleged misconduct. However, the union has moved that regardless of the merits, the Board should, in a preliminary way, declare that the discipline imposed on Mr. Worku, ie. His discharge on May 19, 2000, was a nullity, because the employer had taken into account information which was proscribed by the “sunset clause” in the collective agreement article 21.5. Article 21, in full, reads:
ARTICLE 21- PERSONNEL FILES AND DISCIPLINARY RECORDS
21.1 There shall be only one official recognized personnel file, which shall contain personnel information including, but not limited to, initial appointment documents, performance appraisals, commendations and disciplinary records.
21.2.1 Any document relating to work performance or disciplinary action that is to be placed on an employee’s personnel file shall be so placed and a copy supplied to the employee within a reasonable time of its preparation.
21.2.2 Employees will be made aware of concerns relating to work performance within a reasonable time.
21.3 Upon a written request, an employee shall be given an opportunity to review his/her personnel file, within ten (10) calendar days of the request or such longer period of time as is reasonable, in the presence of a management representative, at a time mutually agreed upon between the employee and the manager, at the employee’s normal work location or another location as may be mutually agreed upon between the employee and the manager.
21.4 The employee is entitled to include his/her own explanation of a matter, including a disciplinary incident, as an attachment to the information being placed in his/her personnel file.
21.5 Any letter of reprimand, suspension or other sanction will be removed from the personnel file of an employee three (3) years following the receipt of such a letter, suspension or other sanctions provided that the employee’s personnel file has been clear of similar offenses for the past three (3) years. Any such letter of reprimand, suspension or other sanctions so removed cannot be sued in any subsequent proceedings. Nothing in this paragraph prevents earlier removal by the employee’s manager.
The union’s position is as follows. The investigator had to make a decision on whether to believe the complainant or Mr. Worku, who had vehemently denied the allegations. In concluding in favour of the complainant, the investigator had taken into account an allegation by another woman who had been employed in the same unit as Mr. Worku that Mr. Worku had, in 1992, made certain sexual comments to her. The union points out to the evidence that the employer relied on the investigator’s report, solely or at least substantially, in concluding that the grievor was guilty of the alleged misconduct. It is the union’s position that in placing reliance on the “tainted” report, the employer had contravened article 21.5. In other words, in making its decision the employer had used information prohibited by article 21.5. Relying on the judgement of the Divisional Court in Molson’s Brewery (Ontario) Limited and Canadian Union of United Brewery, Flour, Cereal, Soft Drink and Distillery Workers, Local 304, December 20, 1982 (unreported), upheld by the Court of Appeal by endorsement dated June 14, 1983, the union submits that in view of the violation of the sunset clause, the Board should declare the grievor’s termination to be null and void and direct that Mr. Worku be reinstated with full compensation, without ability on the part of the employer to re-discipline him for the same conduct.
In Re Molson’s Brewery (supra), the “sunset” clause read as follows:
In the imposition of discipline, if an employee has not been formally disciplined for the same or a related offence for an interval of one year (two years in the case of suspension) his previous offences will not be referred to. But, in any event, discipline imposed will not be referred to after the expiry of three years from the date of discipline.
Disagreeing with the arbitrator, the court held that the clause was mandatory. In concluding that the employer had contravened the clause, the Court found that “it is apparent that Mr. Burtt and Mr. Busch were going to attach significance and did attach significance to the discipline record without limitation to the period involved in formulating their recommendation to Mr. Burkett that the employee be discharged.” The Court held that the sunset clause “must at least mean, ... that the company must not attach weight to the previous offences in reaching its decision with respect to discipline or discharge” and also stated, “In our view the respondent company had no right under the collective agreement to discipline or discharge the grievor in circumstances in which it attached significance or weight to his prior discipline record.”
In the result, the court ordered:
It is our view, in the circumstances of this case, that the respondent company cannot now discipline or discharge the grievor by reason of the incident of February 20, 1981. We can see no final result to the proceedings other than that which was requested by the applicant, namely, that the grievor be reinstated with full compensation. The matter is to go back to the arbitrator. That order should be hers, not ours.
In the present case, in the report itself, the investigator refers to the incident in 1992 as follows:
Similar fact evidence was obtained during the course of the investigation. This evidence in and around 1992, Witness #4 was employed in the same unit as the Respondent. She states that she was subjected to comments by the Respondent, when the two of them were alone together. She states that these comments were to the effect of the following, “I’d like to take you away for the weekend”, “You look nice today”, “If I wasn’t married” or “If You weren’t married”. She states that she felt uncomfortable when these comments were made, and that they had a sexual innuendo. She states that the matter was dealt with inside of her own workgroup. There were no allegations of physical contact. Documentary evidence confirms that Witness #4 reported this conduct to superiors in October 1992, but felt that she had dealt with the matter herself.
The evidence clearly establishes two things. First, that in determining the issue of credibility between Mr. Worku and the complainant the investigator did place at least some weight on the 1992 incident. Thus at p. 6 she wrote:
When taken as a whole, the evidence, including the detailed descriptions of the subject events, the Respondent’s lack of explanation, the evidence of Witness #1's state of upset after the event, the reports she made to others, and after the second incident, to her superior, the similar fact evidence tends to support Witness #1.
Secondly, the evidence also establishes that the employer accepted the investigator’s report. In correspondence with the union following the filing of the grievance, the employer states that “the Management’s decision was made solely on the basis of the investigator’s report” and that “The Investigator’s Report including the Respondent’s written rebuttal which was appended, was solely used to make the decision to dismiss the Respondent which is already in your possession”. In the second stage reply to the grievance, the employer makes the following statement:
“Management also indicated that its decision to dismiss was based on the investigation report. Before rendering its decision, management was fully informed of your response to the draft report and considered your response prior to making its decision. Management accepted the investigator’s findings and conclusions.”
In Re Molson’s Brewery, based on the language of the sunset clause before it, the Divisional Court concluded that the employer there had contravened that clause. The Court held that since the provision was mandatory, the inevitable result was that the discharge was a nullity.
Before the Board can nullify Mr. Worku’s discharge by applying the reasoning in Re Molson’s Brewery, the union must first establish that the employer was in breach of article 21.5. That requires a review of the evidence in light of the language of article 21.5.
It is common ground that in 1992 the grievor received no discipline as a result of the complaint by the woman. Indeed, it appears that no formal complaint was made and no investigation took place. Instead, the complainant resolved the situation herself. The union argued that in those circumstances considering the 1992 allegations in 2000 was extremely unfair to the grievor. Furthermore, it was submitted that by considering incidents for which no discipline had been imposed in a subsequent investigation, the employer had contravened its own WDHP policy. In addition, counsel cited arbitral jurisprudence to the effect that where an employer fails to impose discipline at the time, it was not entitled to rely on the alleged misconduct later.
If indeed the employer had contravened any legal obligations it had in the manner it discharged Mr. Worku, the union will be entitled to argue what legal consequences ought to flow as a result. However, in my view, those issues do not assist in determining the present motion, here the union=s position is that the grievor=s discharge was a nullity because the employer had acted contrary to a specific provision of the collective agreement, namely, the sunset clause article 21.5. As a pre-requisite for success in this motion, the union must establish that article 21.5 specifically was contravened.
The sole focus of article 21.5 is on Aany letter of reprimand, suspension or other sanction@. The provision first obliges the employer to remove letters of reprimand, suspensions and other sanctions from the personnel file of an employee three years following receipt of the same provided the employee’s file has been clear of similar offenses for the past three years. Second, the provision mandates that the employer cannot use any letter of reprimand, suspension or other sanction so removed, in any subsequent proceeding. It is clear from the language Aany letter of reprimand, suspension or other sanction@ that article 21.5 is concerned with discipline imposed on an employee. It envisages a situation where an employee had been previously disciplined and that the discipline has been placed on the employee’s personnel file.
In my view, article 21.5 ties in with article 20.1 which stipulates, in part, that AIt is understood that disciplinary measures will be ... subject of the principles of progressive discipline@. The principles of progressive discipline obliges the employer to take a corrective approach in disciplining employees. The corollary to that obligation is that where an employee commits a disciplinable act, the employer is entitled to take into account that employee’s past disciplinary record. The intent of article 21.5 is to place a limitation on the right the employer has to consider an employee’s past disciplinary record.
It is absolutely clear and undisputed that the grievor did not receive any sanction or discipline as a result of the 1992 allegation. Therefore, it is not a situation that is addressed by article 21.5. In other words, article 21.5 has no application to the facts in the present case.
The Board reiterates that this decision does not rule upon the union’s position that for a number of other reasons the employer was not entitled to resurrect and investigate the 1992 allegation in the course of disciplining Mr. Worku for the February 2000 incidents. The union is entitled to pursue those issues and to argue what consequences should follow if it is found that the employer’s investigation and decision-making process was flawed. This decision is confined to a finding that the employer’s decision making process, however else it may have been flawed, did not contravene the specific obligations it had under article 21.5.
In the result, the union’s motion is denied. I remain seized to deal with all outstanding issues related to the grievance.
Dated at Hamilton, this 28^th^ day of December, 2000.