Ontario Liquor Boards Employees’ Union (Xanthopoulos) v. The Crown in Right of Ontario (Liquor Control Board of Ontario), 2002 CanLII 45761

GSB#1372/01

UNION# OLB535/01

IN THE MATTER OF AN ARBITRATION

Under

THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT

Before

THE GRIEVANCE SETTLEMENT BOARD

BETWEEN

Ontario Liquor Boards Employees’ Union

(Xanthopoulos)

Grievor

-and-

The Crown in Right of Ontario

(Liquor Control Board of Ontario)

Employer

BEFORE Randi H. Abramsky Vice-Chair

FOR THE GRIEVOR Ursula Boylan

Counsel

Koskie Minsky

Barristers & Solicitors

FOR THE EMPLOYER Myfanwy Marshall

Counsel

Legal Services

Liquor Control Board of Ontario

HEARING March 15, 2002.

AWARD

On November 13, 2001, the grievor, Steve Xanthopoulous, was discharged for allegedly removing a gift “flask” from a case of liquor for his own personal gain on October 22, 2001 and misrepresenting what occurred to management. A grievance alleging a violation of “Article 26.4” – which requires just cause for discipline and dismissal – “and any applicable articles” was filed on November 21, 2001. At the outset of the hearing, the Union raised a preliminary objection to the grievor’s discharge based on Article 26.3 of the collective agreement. That provision states:

26.3 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 Union asserts that the Employer failed to comply with this provision and that, as a result, the discipline imposed is void ab intio.

Facts

The grievor, until his discharge, had worked for the LCBO since 1980, and for the past seventeen years worked at the Durham Logistics Facility. On October 22, 2001, the grievor was videotaped removing a gift flask from a case of liquor.

On October 26, 2001, Bruce Pizzolato, Director – Durham Logistics Facility, issued a memo to all staff concerning the removal of gift pack cases. The memo states as follows:

To: ALL DURHAM STAFF

From: Bruce Pizzolato

Date: October 26, 2001

Re: Gift Pack Cases

It is becoming very apparent from the number of complaints I am receiving from our Retail Sores concerning Gift Pack Cases arriving at their location from Durham with obvious signs of tampering and the gift items missing, that these items are being STOLEN. Inspections of cases here at this facility are also indicating the same.

I have been furnished with reports from Durham Security Staff with names, dates, and times of individuals acting suspicious and inappropriate, relative to their job duties around this type of product.

I am left with no other choice but to have our video surveillance increased and placed out of sight in key areas of the warehouse in an attempt to curb this or deal severely with any individual caught. It is unfortunate that I have to subject the entire staff at this facility to this and I apologize to those who have the morals and ethics that would otherwise preclude them from participating in such an activity.

In conclusion, anyone caught removing any LCBO property, whether it be alcoholic in nature or not, from the warehouse will be immediately terminated and all evidence turned over to the Durham Regional Police for further action.

According to the grievor, on either October 30 or October 31, 2001, near the end of the shift, his manager told him that “they need you in the front office.” When he asked why, the manager told him that he was not aware, that he was just told to instruct him to come. The grievor then proceeded to the front office. He was not sure whether he or Union Representative Sousa arrived first, but stated that when he saw Sousa he asked him what was going on, to which Sousa replied that he didn’t know. Sousa then asked him why he was there, and the grievor responded, “I don’t know.” At that point, three members of management came in – Director Bruce Pizzalato, Neil Lenihan, Human Resources Manager- Durham Logistics Facility, and Vic Araujo, General Manager of Operations. The grievor testified that he immediately asked Pizzalato why the Union representative was there, stating that he didn’t needed one. He was told that it was for his “protection.”

Union Representative Sousa’s recollection was quite similar. He testified that he heard his name on the public address system near the end of the shift, and when he swiped out, he saw Bruce Pizzalato who asked him to stay for a few minutes because he was needed at the front office. He testified that he went there and saw the grievor outside the office. The grievor then asked him what was going on, and he replied that he “didn’t know – did they tell you anything”, to which the grievor replied “no.” He further testified that when management came in, the grievor asked, “what was going on and why was the Joe here”, and Pizzalato answered, “Joe is here as a union representative, for your protection.”

General Manager of Operations Vic Araujo testified that he, not Pizzalato, was the one who spoke to Sousa about attending at the front office, asking him to stay for a few minutes because management needed to meet with an employee and needed him present. He recalled that Sousa was already seated in the front office when management arrived and that the grievor arrived shortly thereafter. After everyone sat down, Araujo testified that the grievor asked what was going on, why was the union there, and that either Pizzalato or Neil Lenihan replied that the meeting was about the opening of cases and management thought that it would be beneficial to have the union present.

What is clear from all of the testimony is that prior to the start of the meeting, the grievor was not told the purpose of the meeting, and that Union Representative Sousa was only told that he was needed to be present when management met with an employee.

On cross-examination, the grievor acknowledged that at the outset of the meeting he was told that the purpose of the meeting was to ask questions regarding the opening of cases, but he denied that he was aware that discipline might result. He testified that when he saw the October 26, 2001 memo, he became concerned because he regularly opens liquor cases as part of his job. He discussed this concern with a manager, Dan White, and asked him what he should do when he needed to open a case. White told him that he would get back to him. He stated that he discussed these concerns at the meeting on October 31, 2001 because he wanted to clarify the situation.

Neil Lenihan testified that Director Pizzalato stated, at the outset of the meeting, that the purpose of the meeting was to ask a couple of questions about the concerns the grievor had raised with management and the reasons why he would have to interact with cases. On cross-examination, Lenihan defined “interacting” with cases as “opening and taking stuff out” of them. He testified that the reason the grievor was questioned was because there was videotape of him interacting with cases on October 22, 2001 and because he had made managers aware that he had concerns about opening cases which arose out of the October 26, 2001 posting. When asked, on cross-examination, whether the video of October 22 showed the grievor pulling out a gift pack, Lenihan answered, “yes, he was interacting with a case.” He acknowledged that at no point was management frank about having the videotape of October 22. It was not mentioned. Nor was their concern that he had stolen a gift flask mentioned at the meeting.

From the testimony of both Lenihan and Araujo it is clear that management called the meeting to question the grievor about his opening of liquor cases, both in general – i.e., what reasons he would have to interact with cases generally – as well as specifically about October 22, 2001. Both Union Representative Sousa and Human Resources Manager Lenihan took notes of the October 31, 2001 meeting, and the notes indicate that the grievor was specifically asked about October 22 – whether he interacted with cases that day. According to Sousa’s notes, he was also asked whether he took anything out of the gift packs, although Lenihan denied this. It is clear, based on the October 26, 2001 posting that removing gift packs could lead to disciplinary action.

On November 2, 2001, the Employer issued a “Notice of Intended Discipline” to the grievor, advising him that “it is alleged that you removed a gift “Flask” from a case of Crown Royal for your own personal gain on Monday, October 22, 2001. As a result disciplinary may be taken against you.” He was asked to provide a written response to the allegation within three days and a meeting was scheduled for November 9, 2001. The letter further states: “Please be advised that you will be entitled to union representation, as discipline may result from the meeting. …”

On November 13, 2001, the grievor was discharged for removing a gift “flask” from a case of Crown Royal for his own personal gain on October 22, 2001. The letter states, in part:

Based on our investigation and your statements in the two meetings held with you, it is my conclusion that you did remove the gift “flask” for your own personal gain. … Our investigation also leads me to believe that you continue to misrepresent the actual events of October 22, 2001.

In addition to the above, I must note that the information you provided both in your written response and in the meeting of October 31, 2001 and November 9, 2001 conflicts with information available to us. This causes great concern with respect to your credibility.

Consequently, based upon the evidence at my disposal and having given serious consideration to this matter, your employment with the LCBO is terminated effective immediately.

On November 21, 2001, a grievance contesting the grievor’s discharge was filed. On January 3, 2002, notice of the arbitration hearing, scheduled for March 15, 2002, was issued. On February 15, 2002, counsel for the Union advised the Employer that it planned to raise a preliminary objection to the imposition of the discipline based on Article 26.3. At no point between October 31, 2001 and February 15, 2002 had the issue of the alleged violation of Article 26.3 been raised by the Union.

Positions of the Parties

1. The Union

The Union submits that the Employer clearly violated Article 26.4 of the collective agreement, rendering the discipline imposed void ab intio. It contends that the meeting was “for the purpose of discussing a matter which may result in disciplinary action being taken against the employee…” – specifically, the grievor’s actions on October 22, 2001. Accordingly, in that situation, the collective agreement provides that “the employee shall be made aware of the purpose of the meeting and his/her right to Union Representation in advance of the meeting.” This, in the Union’s submission, was not done. The grievor was not advised, in advance of the meeting, the purpose of the meeting, or of his right to union representation. The Union submits that although, when it called the grievor to the meeting on October 31, 2001, the employer suspected that the grievor had stolen the gift flask, it never advised the grievor of its suspicions before or during the meeting. Nor did it advise him, in advance or at any time during the meeting, that they would be discussing a matter which might result in disciplinary action. Yet, it submits, the clear purpose of the meeting was to ask questions about October 22, 2001.

The Union asserts that the GSB case law clearly supports its position, citing OLBEU (La Hay) and LCBO, GSB No. 809/94 (Gorsky); OLBEU (Franssen) and LCBO, GSB No. 1636/96 (Mikus) and OLBEU (Pedneault) and LCBO, GSB No. 1568/98 (Briggs). Those cases, it argues, establish that Article 26.3 creates a substantive, rather than a procedural, right both to advance notice of the purpose of the meeting which may lead to discipline and the right to union representation at that meeting.

The Union further contends that the employer cannot escape its obligations under Article 26.3 by relying on the fact that the grievor and Union Representative “should have known” that the meeting might lead to disciplinary action, based on the subject matter of the meeting – the opening of cases. It submits that the obligation under Article 26.3 is to inform an employee about the purpose of the meeting, “in advance of” the meeting, not “at the meeting.” Nor, in its view, can it escape its obligations by having Union Representative Sousa attend the meeting. It argues that by not disclosing the true purpose of the meeting, the ability of Mr. Sousa to represent the grievor was significantly undermined.

The purpose of Article 26.3, the Union asserts, is to protect an employee during a meeting with management which may lead to discipline. Protection is provided by informing the employee, in advance, of the purpose of the meeting and advising them of his or her right to union representation. It contends that the provision protects an employee against exactly what happened on October 31, 2001 - an employee, not knowing the reason for the meeting, being asked specific questions about a matter which may result in discipline. Further, it argues that the evidence clearly establishes that management relied on comments the grievor made at that meeting, as set out in the November 13, 2001 letter of discharge.

The Union suggests that the Employer acted correctly under Article 26.3 when it issued the NOID on November 2, 2001 which specifically advised him that there would be a meeting to discuss a matter which might lead to discipline and that he had the right to have a union representative present. It submits that is what the Employer should have said to the grievor before the October 31, 2001 meeting, but did not.

The Union contends that because the Employer violated the grievor’s substantive rights under Article 26.3, the discipline imposed is void ab initio. It submits that the grievor should be reinstated, with compensation from February 15, 2002, the date that the Union raised the issue of Article 26.3 with the Employer. It submits that the GSB case law is clear that delay in raising this issue does not waive the objection but does impact the remedy that may be ordered. OBLEU (LaHay), supra.

2. The Employer

The Employer submits that there was no violation of Article 26.3 of the collective agreement. It asserts that the grievor was told, at the outset of the meeting, that the purpose of the meeting was to discuss his interacting with cases. At that time, based on the October 26, 2001 posting, the grievor knew that interacting with cases might lead to disciplinary action. It submits that Union Representative Sousa was aware that his role was to represent the grievor and that the grievor was specifically told that Sousa was at the meeting for his protection and benefit. It would have been redundant, in its view, to tell the grievor, in those circumstances, that the meeting was to discuss a matter which might lead to discipline and that he had the right to union representation. It submits that all of the information required by Article 26.3 was implicit and clear to both the grievor and Sousa at the time.

The Employer contends that there is no obligation in the collective agreement to issue a NOID before it can meet with an employee to discuss a matter which may lead to discipline. Nor must there be time provided for an employee and his union representative to meet. Nor must details be provided to the grievor or the Union. The Employer suggest that the Union, in this matter, is attempting to expand the scope of Article 26.3 to include these protections and that the GSB has no jurisdiction to alter and amend the collective agreement in that way.

The Employer further contends that the substantive right contained in Article 26.3 is the right to union representation. It submits that it is the right to union representation that formed the basis of the GSB decisions cited by the Union. In contrast, the right to advance notice, it submits, has been found to be a procedural, not a substantive right. In support, it cites to Re Cambridge Towel Corp. and A.C.T.W.U. 1988 CanLII 4848 (ON HCJ), [1988] 66 O.R. (2d) 793 (Ont. Div. Ct.); Re Williams et al. and Treasury Board (Post Office Department) (1979), 1979 CanLII 3948 (CA LA), 22 L.A.C. (2d) 94 (Abbott); Re Royal Ottawa, Re Toronto Hospital (General Division) and Ontario Nurses’ Association (1996), 1996 CanLII 20256 (ON LA), 52 L.A.C. (4th) 1 (H.D.Brown); Re Espanola General Hospital and Canadian Union of Public Employees (1991), 1991 CanLII 13389 (ON LA), 21 L.A.C. (4th) 211 (Joyce); Accordingly, it asserts that if Article 26.3 was breached by failing to give the grievor advance notice of the purpose of the meeting, it should not render the discipline void ab initio.

The Employer also submits that in the absence of any demonstration of prejudice, a technical violation of Article 26.3 should not render the discipline null and void. In this case, the grievor had the benefit of Sousa’s assistance and was well aware that interacting with cases might lead to discipline. In support, the Employer cites to OLBEU (Massa) and LCBO, GSB No. 2033/97 et al. (Abramsky), where a NOID issued to an employee in the absence of a union representative was rescinded and then reissued by mail, no violation of Article 26.3 was found since the error was corrected.

Finally, the Employer submits that the grievor and the Union waived their rights under Article 26.3 by proceeding with the meeting on October 31, 2001, and then failing to raise the matter at any time until a month before the arbitration hearing. The Employer submits that there was no excuse for the Union’s gross delay in raising this issue and that it should not be allowed to “lay in the weeds” on this matter. It contends that the Union’s preliminary motion should be dismissed on the basis of delay. Further, the Employer contends that should the Board conclude that the grievor’s rights to advance notice were violated, it submits that voiding the discipline is a disproportional remedy. Instead, it submits that the information obtained from the October 31, 2001 meeting be excluded from the record.

Decision

1. Is the motion to dismiss timely?

In OBLEU (La Hay), supra, the GSB addressed the issue of the timeliness of the Union’s assertion of a violation of Article 26.3. In that case, the grievor was discharged on June 23, 1994, and a grievance contesting the discharge was filed on June 28, 1994. The Union notified the Employer of its intention to raise the violation of article 26.3 on May 25, 1995, almost a year later, and only ten days before the June 5, 1995 hearing. The Board ruled, at p. 54: “Being substantive in nature, it did not matter that the Employer was only notified of the Union’s intention to raise the violation of art. 26.3 on May 25, 1995.” It also ruled at p. 54, citing Alcan Wire and Cable, unreported (Tacon, July 20, 1989) at p. 10, that the written grievance was broad enough to encompass discipline which was improper with respect to the procedure followed as well as the merits of the decision to terminate.

Instead, the Union’s delay in notifying the Employer of its intention to rely on the failure to comply with Article 26.3 went to remedy. Rather than award the grievor compensation from the date of his discharge, the Board awarded compensation “only from the date of notification (May 25, 1995).” (p. 58).

The Board’s holding on this issue in La Hay was followed in OLBEU (Pedneault), supra. In that case, 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 discharge. The Board stated at p. 25: “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.”

These cases demonstrate that the Board has permitted the Union to raise an objection based on article 26.3 at a very late date because article 26.3 provides a substantive right. Instead, the Board has addressed the timeliness of the Union’s notification to the Employer in terms of remedy. As stated by Vice-Chair Briggs in Pedneault - “[t]his matter was discussed thoroughly by Vice-Chair Gorsky in LaHay and I do not intend to stray from that decision.”

2. Did the Employer violate Article 26.3?

A. Was the October 31, 2001 meeting “for the purpose of discussing a matter which may result in disciplinary action”?

The evidence clearly reveals that the October 31, 2001 was part of the Employer’s investigation into the events of October 22, 2001. At the time the grievor was required to attend the meeting, the Employer had a videotape of him removing a gift flask from a case of Crown Royal liquor. They suspected him of stealing that gift flask, a matter that certainly could lead to disciplinary action. If there were any doubt about that, the posting of October 26, 2001 states that “anyone caught removing any LCBO property, whether it be alcoholic in nature or not, from the warehouse, will be immediately terminated and all evidence turned over to the Durham Regional Police for further action.”

On the evidence before me, the conclusion is inescapable that management intended their meeting with the grievor to be an opportunity to further their investigation, by questioning him about his interaction with cases, generally, as well as specifically about October 22, 2001. The questions asked were to obtain information which they would consider – and, in fact, did consider – in deciding whether disciplinary action should be taken against him. The discharge letter of November 13, 2001 leaves no doubt that the Employer relied on the grievor’s statements of October 31, 2001 to conclude that he should be terminated.

Under the facts of this case, I conclude that the meeting of October 31, 2001 was “for the purpose of discussing a matter which may result in disciplinary action being taken against the employee…” within the meaning of Article 26.3 of the collective agreement.

B. Did the Employer, at the outset, inform the grievor of the purpose of the meeting?

. According to Neil Lenihan, Director Pizzalato told the grievor that the purpose of the meeting was to ask him some questions about his interaction with cases and to address the concerns that he had earlier raised with management about the October 26th posting. They also told him that the Union representative was there for his “protection.” In the Employer’s submission, it was implicit in these statements that the grievor was being questioned about a matter which may result in disciplinary action, and the grievor should have known that. Respectfully, for a number of reasons, I cannot agree under the specific facts of this case.

First, the meaning of the words “interact with cases” is not clear on their face. It was defined, at the hearing by Mr. Lenihan to mean, “opening a case and taking stuff out” of them. But there is no evidence that those words, which was used at the meeting according to Mr. Lenihan’s notes and testimony, were ever defined at the meeting itself. This is particularly important given that English is not the grievor’s first language.

Second, the grievor testified that although he knew he was being asked questions about opening cases, he was not aware that the purpose of the meeting was to discuss a matter which might lead to discipline. He thought the meeting was to address the concerns that he had earlier brought to management’s attention in light of the October 26th memo and to clarify when he could or could not open cases. Under the facts of this case, this was a reasonable understanding.

Third, even assuming that the grievor should have understood that questions about “interacting” with cases might lead to disciplinary action (a conclusion which I do not make), this would not satisfy Article 26.3. Nor was it sufficient for the Employer to tell the grievor that the Union representative was there for his “protection.” Article 26.3 requires the Employer to advise an employee that the purpose of the meeting is to discuss a matter which may result in disciplinary action. The obligation is on the Employer to advise the employee of the purpose of the meeting. It is not the employee’s obligation to surmise, guess or infer the Employer’s purpose. As stated by the Board in Pedneault, supra, at p. 22: “his [the grievor’s] opinions as to what might occur at the meeting did not relieve the Employer of its obligations under article 26.3.”

At no time either before, or at the outset of the meeting, did management reveal to the grievor that the purpose of the meeting was to discuss a matter, which may result in disciplinary action being taken against him. Although I agree with the Employer that the specifics need not be revealed in advance, nor must the Employer first issue a NOID before meeting with an employee, but the purpose of the meeting – that it is to discuss a matter which may lead to discipline – must be disclosed. This was not done on October 31, 2001.

The purpose of the requirement of advance notice was explained in Re Williams et al. and Treasury Board (Post Office Department), supra. In that case, the collective agreement provided that the “Employer agrees to notify an employee twenty-four (24) hours in advance of any disciplinary interview or disciplinary counseling session and to indicate the purpose of the meeting, …” The adjudicator ruled, at p. 3:

[I]t must have been the intention of the parties to the agreement that the provision for advance notice serve some purpose. That purpose must have been to permit the employee, knowing that the purpose of the forthcoming interview related to his own alleged misconduct, to consider whatever defences or excuses might be available to him. As well, the advance warning would permit the employee to avail himself of the right secured to him by cl. 10.06, namely, to arrange to have a union representative accompany him to the interview.

In this case, by not advising the grievor of the purpose of the meeting, it placed the grievor in a vulnerable position. He was asked and answered questions not knowing that his answers might lead to disciplinary action – exactly the type of situation which Article 26.3 was designed to protect against. Further, this significantly prejudiced the grievor. His statements at the October 31, 2001 meeting were used to support the Employer’s decision to discharge him.

C. Is the requirement of advance notice of the purpose of the meeting a procedural or substantive right?

After carefully reviewing the cases cited by the parties, I conclude that the requirement of advance notice of the purpose of the meeting under Article 26.3 is a substantive right. The GSB’s jurisprudence concerning Article 26.3 – which governs these parties and the interpretation of this collective agreement – has uniformly held that Article 26.3, in its entirety, creates substantive rights. Although the cases have primarily focussed on the absence of union representation, they have included both aspects of Article 26.3 – both the right to advance notice of the purpose of the meeting and the right to union representation.

In LaHay, supra, the Board held, at p. 51-52, as follows:

Art. 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 Board further ruled, a p. 53: “In this case, the Grievor was not made aware of the purpose of the meeting at the outset, nor was he informed of his right to union representation.” Thus, both aspects of Article 26.3 were violated. Both were held to be substantive rights.

That the right to advance notice of the purpose of the meeting is a substantive right under Article 26.3 is even more clearly seen in OBLEU (Franssen), supra. In that case, the manager handed six NOIDs personally to the grievor which he then read and made comments upon. The Board held that this breached Article 26.3. The Vice-Chair determined at p. 8 that “when [the manager] 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.” The Board further noted that the grievor “was not advised in advance of the purpose of the meeting, nor was he advised that he could have a Union representative assist him.” (p. 8).

In Franssen, the Employer also called the grievor at home and requested that he attend the store as soon as possible but was not told the purpose of the meeting. At the meeting, he was again handed an envelope containing five additional NOIDS. There was no discussion and the grievor was told to read them later and to respond in writing. The Board held that this meeting, as well, violated Article 26.3. The Board ruled at p. 9 (emphasis in original):

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 representation. 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. … 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. …

The GSB case law, in my view, is very clear. Article 26.3 creates a substantive right in an employee, who is required to attend a meeting for the purpose of discussing a matter which may result in disciplinary action, to “be made aware of the purpose of the meeting and his/her right to Union representation in advance of the meeting.” Article 26.3 does not simply provide the right to union representation at such a meeting. It includes the right to advance notice of the purpose of the meeting as well. Although a number of the cases supplied by the Employer have reached a contrary result on this issue, it is the Board’s decisions, interpreting this provision in the parties’ collective agreement, which controls this dispute.

In my view, the Employer violated the grievor’s right to advance notice of the purpose of the meeting under Article 26.3 when it met with him on October 31, 2001. I further conclude that the presence of Union Representative Sousa at that meeting does not alter this result. There are two aspects to Article 26.3: a notice aspect (to be advised of the purpose of the meeting and the right to union representation) and the right to union representation itself. In this case, the Employer violated the notice aspect, and it is irrelevant whether or not the right to union representation was satisfied. See, Pedneault, supra at p. 23 (distinguishing between the Employer’s obligation to inform the grievor of his right to a representative, and the failure to provide that representation)

Further, under the facts of this case, it is not at all clear that the grievor’s right to union representation was fully met because of the Employer’s violation of the grievor’s right to be advised of the purpose of the meeting. Without knowing the purpose of the meeting, the grievor did not fully understand why Mr. Sousa was there and could not make full use of his presence. Nor, without clearly understanding the purpose of the meeting, could Mr. Sousa fully perform his function as union representative.

D. Did the Grievor waive his rights under Article 26.3?

I conclude that the grievor did not waive his rights under Article 26.3. In LaHay, the Board concluded at p. 51 that “Article 26.3 creates a substantive right which can only be waived by the employee involved.” There is no evidence that the grievor understood his rights under Article 26.3 or that he waived them. Nor does his participation in the October 31, 2001 meeting constitute a waiver. As held in Pedneault, supra at p 22:

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 did. Therefore, his mere participation in the meeting cannot be held against him. …

Remedy

The remedy for a violation of Article 26.3, as set out in all of the GSB cases cited by the Union is to declare the discipline void ab initio. LeHay, supra; Franssen, supra; Pedneault, supra. This is because the protections afforded to employees under Article 26.3 are substantive rights, which must be strictly applied. The failure of the Employer to grant these rights renders the discipline imposed void ab initio.

The Employer suggests that a less severe remedy should be applied, specifically that the Employer be precluded from relying on the meeting of October 31, 2001. While I can understand why the Employer views voiding the discipline as a harsh remedy, it is a remedy well established in the case law. Further, the meeting of October 31, 2001 cannot be separated from the discharge of November 13, 2001. As explained in LaHay, supra at p. 53-54:

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 the events following which were inextricably associated with it … 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. …

In this case, given the clear reliance on the statements made by the grievor at the meeting on October 31, 2001 to support the discharge, it would be highly artificial to divide that meeting from the discharge which followed.

Accordingly, I conclude that the discharge imposed on November 13, 2001 is void ab initio. As per LaHay, supra, and Pedneault, supra, the grievor is to be reinstated as of February 15, 2002, the date that the Union advised the Employer of its intention to rely on Article 26.3, with full compensation, seniority and benefits as of that date. I shall remain seized in the event there are any difficulties implementing this decision.

Dated at Toronto, this 28th day of March, 2002.