GSB#1469/01
UNION# OLB504/01
IN THE MATTER OF AN ARBITRATION
Under
THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT
Before
THE GRIEVANCE SETTLEMENT BOARD
BETWEEN
Ontario Liquor Boards Employee’s Union
(Simpson)
Grievor
-and-
The Crown in Right of Ontario
(Liquor Control Board of Ontario)
Employer
BEFORE N. Dissanayake Vice-Chair
FOR THE UNION Craig Flood Counsel Koskie Minsky Barristers & Solicitors
FOR THE EMPLOYER Mike Horvat Counsel Ogilvy Renault Barristers and Solicitors
HEARING June 20 & 21, 2002.
DECISION
This is a grievance dated November 9, 2001 filed by the grievor Mr. John Simpson wherein he challenges discipline imposed upon him. This decision deals with a preliminary motion by the union that the discipline imposed on the grievor be declared void ab initio. This motion is based on article 26.3 of the collective agreement, which reads:
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.
It is the union’s contention that the discipline on the grievor was preceded by meetings on September 17 and September 20, 2001 in respect of which the employer failed to comply with article 26.3. The union submits that if the article was contravened on either date, the discipline that followed is void ab initio. The employer did not dispute the legal proposition, but took the position that article 26.3 was not contravened at either meeting.
The meeting on September 17, 2001
The employer’s primary position with regard to this meeting is that it did not trigger article 26.3. In the alternative, it is argued that if article 26.3 did apply, the employer was in compliance. I turn to the evidence in this regard.
Based on the evidence, I find the following facts. The grievor was employed as a casual Customer Service Representative at the employer’s store #32 in Windsor, Ontario. On September 17, 2001 he was on a 9:00 a.m. to 2:00 p.m. shift. Shortly before 2:00 p.m. his Store Manager, Mr. Jacque Lanthier approached him and asked if he would work an extra hour that day. The grievor agreed. The grievor did not inquire, nor did Mr. Lanthier inform the grievor, as to why he was asked to stay an extra hour. Sometime during that extra hour, Mr. Lanthier again approached the grievor and stated words to the effect “John, would you mind coming to the office with me”. The grievor followed Mr. Lanthier to the Store Manager’s office. As he approached the office, he observed Mr. Robert Poulin, District Manager, at the steps leading to the office. As the grievor approached the office door, he saw Ms. Pat Gauld in the manager’s office. He recognized her as “a union official”, having met her previously at LCBO functions such as wine tastings. He was not aware why she was there. After he entered the office, Mr. Lanthier introduced the grievor to Ms. Gauld. Then Mr. Poulin handed to the grievor a sealed envelope and stated that the grievor should talk to Ms. Gauld about it. The grievor asked Mr. Poulin, “What is this for?” Mr. Poulin replied, “It’s all explained in the letter,” and proceeded to inform the grievor that he would be on 3 days off with pay and that he had 3 days to respond to the letter. With that Mr. Poulin and Mr. Lanthier left, leaving the grievor and Ms. Gauld in the office. The grievor read the letter and shared it with Ms. Gauld. The letter, dated September 17, 2000 and signed by Mr. Poulin, was what is referred to by the parties as a “notice of intended discipline” (NOID). It read as follows:
As a result of improper cashiering procedures on September 1, 2001, disciplinary action may be taken against you.
More specifically you failed to scan or ring in a product, you did not provide a receipt to the customer after receiving cash payment. Also more than one staff member were working off of the same cash drawer. You have also exchanged American change from your cash drawer to personal money, which is contrary to the cashiering procedures.
Within three (3) calendar days of your receipt of this letter, you are directed to submit a written statement by registered mail, to my attention. Robert Poulin, District 4 Manager, in which you are to explain the circumstances giving rise to your behaviour.
Furthermore, you are hereby relieved from duty immediately with pay pending your reply and the results of an internal investigation.
Should a meeting be scheduled following receipt of your written statement, please be advised that you are entitled to Union Representation, as discipline may result from the meeting. Should you choose not to respond as requested, understand that Management will act on information currently available.
The LCBO’s decision in this matter will be made known to you in due course.
Ms. Gauld and the grievor talked for 5 to 10 minutes about the contents of the NOID. Then Ms. Gauld opened the office door. Mr. Poulin and Mr. Lanthier were standing outside. They stepped in