GSB# 2002-2405, 2002-2423

UNION# 2002-0230-0015, 2002-0230-0016, 2002-0230-0009, 2002-0230-0014, 2002-0230-0011, 2002-0230-0012, 2002-0230-0013, 2002-0230-0010

IN THE MATTER OF AN ARBITRATION

Under

THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT

Before

THE GRIEVANCE SETTLEMENT BOARD

BETWEEN

Ontario Public Service Employees Union (Vojtko-Ioannidis)

Union

• and -

The Crown in Right of Ontario (Ministry of Community Safety and Correctional Services)

Employer

BEFORE

Randi H. Abramsky

Vice-Chair

FOR THE UNION

John Brewin Ryder Wright Blair & Holmes LLP Barristers and Solicitors

FOR THE EMPLOYER

Lisa Compagnone Counsel Management Board Secretariat

HEARING

April 18, May 30 and June 2, 2005.

Award

On November 10, 2004, the grievor, Ms. Lydia Vojtko-Ioannidis, was issued a twenty-day suspension for substandard case management and breach of Ministry policies. On November 12, 2004, she filed a grievance concerning this discipline. At the outset of the hearing, the Union raised a preliminary objection to the imposition of the discipline. Specifically, the Union alleges that when the Ministry met with the grievor to discuss her work performance, no mention was made of discipline during the meetings. The Union asserts that the Employer has an obligation, under the duty of fairness, to advise the grievor not only of its understanding of the facts but its intended course of action before any penalty is imposed. Since this was not done, the Union asserts that the Employer deprived the grievor of her right to union representation and that the discipline should therefore be void ab initio. This Award addresses the Union’s preliminary objection.

Facts

The grievor is a Probation and Parole Officer with the Ministry of Community Safety and Correctional Services. The Employer, due to concerns regarding the grievor’s work performance, performed an audit on a number of her case files. The findings there led to a second, more extensive audit. These audits, according to the Employer, revealed a number of serious performance issues which the Employer wanted to address with the grievor.

On September 20, 2004, the grievor’s supervisor, Mr. Kevin McIntyre, wrote to the grievor, advising her of a meeting on September 23, 2004. The letter continued as follows (bold in original):

You are required to attend this meeting to respond to the following:

You are a Probation Parole Officer with core duties and responsibilities to meet ministry policies and supervision standards in all cases assigned to you. Recent Case Management Reviews have found a large number of cases with limited or no supervision occurring for long periods of time and that several of these pertained to high and medium risk cases. In others, these reviews commonly found unacceptable breaches of ministry policies and standards, absent documentation, limited or no victim contacts and/or failures to follow-up on enforcement action when your notes indicated the need for this action.

As this meeting may again result in disciplinary action, you are entitled to have a representative accompany you and it is your responsibility to make all of the necessary arrangements.

Should you fail to attend this meeting, the meeting will proceed in your absence.

/s/

Kevin McIntyre

The grievor, through an e-mail on September 22, 2004, advised that she was unable to obtain Union representation for the meeting, and sought to postpone the meeting to mid-October.

By letter also dated September 22, 2004, the Ministry agreed to reschedule the meeting, but did not agree to mid-October. It wrote: “As the Employer has an obligation to seek clarification and, if necessary, to take corrective action in a timely manner, this is not acceptable.” Instead, the Employer rescheduled the meeting to October 5, 2004. It then repeated that she was required to respond to the allegation set forth above, in bold. It then concluded as follows:

As you have already been advised, this meeting may result in disciplinary action. As such, you have been provided with approximately twelve additional days to make arrangements to have a representative accompany you. As such and to be clear, should you not attend this meeting, it will proceed in your absence.

On October 5, 2004, the grievor attended the meeting with Ms. Pat Honsberger, Regional Representative for OPSEU, from the Guelph office. Ms. Cheryl Sikkes, Area Manager, chaired the meeting. Also in attendance were Mr. John Wass, Senior Project Analyst, Western Region, and Mr. Kevin McIntyre.

In terms of this motion, there is little dispute about the content of the October 5, 2004 meeting. At this meeting, the grievor was provided with a copy of the audit results and summaries. A number of the problems found were identified, and the Employer stated that it wanted to find solutions to deal with the performance issues. On several occasions, the grievor was asked what solutions she could provide to ensure that these types of problems did not reoccur. There was a discussion about Ministry standards and possible training. The grievor asked for time to review the audit in order to respond. The Employer agreed to this request and to meet again.

On October 13, 2004, Kevin McIntyre wrote to the grievor, advising her of a second meeting to be held on October 18, 2004. That letter states, in relevant part, as follows:

Further to our meeting of October 5, 2004 and your request for additional time to review your audit results I wish to advise you a meeting has been scheduled at 10:30 a.m. on Monday, October 18, 2004…. It is our expectation that you will be responding by suggesting possible solutions to correct serious deficiencies found in your audit results.

To reiterate, you are directed to attend this meeting. As you have previously been advised this process may result in discipline and as such you may bring a representative to assist.

Yours truly,

/s/

Kevin McIntyre

The grievor attended this meeting with local Chief Steward Steve Routenburg. The same three individuals attended for the Employer – Ms. Sikkes, Mr. Wass and Mr. McIntyre. During this meeting, the grievor disputed a number of the audit findings. She also challenged the methodology of the audits and how it was done compared to audits of other Probation and Parole Officers. She also raised the issue of her accommodations and whether that had been adequately accounted for in the audit.

Chief Steward Routenburg testified, without contradiction, that Ms. Sikkes conveyed that the audit was cause for serious concern and raised serious performance issues, but no mention was made of discipline. Standards and training were discussed and other “solutions” were sought, but discipline was not mentioned as a potential “solution.” He stated that he was surprised when, subsequently, the grievor was issued a suspension. In his view, what should have happened was that the Employer should have advised them regarding the level of discipline they were contemplating, so that he and the grievor could respond to it in terms of whether the proposed discipline was reasonable in all of the circumstances.

At the end of the meeting, the grievor asked what would happen next. Management advised that they would take everything under advisement and get back to the grievor.

At the hearing, the grievor testified that although she read the letters advising that discipline may result, she assumed that they were form letters. In her view, discipline was not an option since the meetings only discussed potential “solutions.” On cross-examination, however, she acknowledged that the allegations concerning her performance were serious and that she knew that discipline might result, “as the letters say.”

On November 10, 2004, the grievor was issued a letter of suspension, dated November 2, 2004, based on the audit findings. In the letter, the Employer withdrew one audit finding based on the grievor’s comments at the October 18, 2004 meeting, but found that the comments did not materially change the Employer’s conclusion on the other cases. It concluded: “Thus, considering the facts and your responses, the Employer regrettably has found that the allegation as stated above is substantiated.”

The parties agreed that the November 10, 2004 meeting in which the grievor was issued the letter of discipline was not a “disciplinary meeting” since the decision had already been made.

Positions of the Parties

The Union acknowledges that the grievor had union representation during the meetings on October 5 and October 18. It asserts, however, that the Employer has a duty of fairness in regard to discipline matters, and that this duty requires the Employer to advise the grievor, in general terms, about the level of discipline it is contemplating so that the grievor, and her union representative, have an opportunity to be heard on that issue. Instead, it argues, in this case, no mention was made at all of discipline during the meetings, and, in fact, the grievor was misled because the discussions centered on “solutions.” Accordingly, in its view, the discipline imposed should be void ab initio.

In support, the Union cites to Re Nicholson and Haldimand-Norfolk Regional Board of Commissioners of Police 1978 CanLII 24 (SCC), [1978] 88 D.L.R. (3d) 671 (S.C.C.); Knight and Indian Head School Division No. 19 1990 CanLII 138 (SCC), [1990] 1 S.C.R. 653 (S.C.C.); OPSEU (Kent) and Ministry of Correctional Services (1989), GSB No. 549/87 (Roberts); ONA and Windsor Western Hospital (Riverview Unit)[1984] O.L.R.B. (Nov.) 1643 (Burkett); OPSEU (Grummett) and Ministry of Financial Institutions (1991), GSB No. 1656/90 (Keller); Re Ontario Hydro and Power Workers’ Union (McNally Grievance) [1998] O.L.A.A. No. 230 (Burkett)(quicklaw); OPSEU (Thomsen) and Ministry of Solicitor General and Correctional Services(1997), GSB No. 205/96 (Briggs); OPSEU (Myers) and Ministry of the Attorney General (2003), GSB No. 0270/03 (Abramsky); OPSEU (Tanevsky) and Ministry of Consumer & Commercial Relations (1989), GSB No. 0763/88 (Dissanayake).

The Employer asserts that there is no duty of fairness in regard to discipline for unionized employees covered by a collective agreement and a grievance arbitration procedure. It asserts that there is, in fact, no obligation under the collective agreement or the Labour Relations Act to union representation in disciplinary meetings at all. It further asserts that even if there is an obligation to provide union representation, its obligation was met in this case. In its view, far from depriving the grievor of her right to union representation, the Employer should be commended for its approach in this case. It notes that it postponed the initial meeting, scheduled a second meeting to provide the grievor with time to respond to the audit findings, and that it heard and fully considered the grievor’s responses. It asserts that the grievor was specifically advised, several times, that discipline might result from the audit meetings and of her ability to bring union representation, which she did.

In the Employer’s submission, the duty of fairness does not apply in a unionized setting. Even if it did, the Employer submits that it does not provide a right to be advised, generally, of the level of discipline being contemplated. Rather, in its view, the duty of fairness only requires notice of the allegations and an opportunity to respond which the grievor had in this case. In its view, the Union’s suggested approach is unworkable and would turn meetings into useless debates about the level of discipline to be imposed.

In support of its position, the Employer relies on OPSEU (Tanevsky) and Ministry of Consumer and Commercial Relations, supra; and Re Board of Education for the City of London and Ontario Secondary School Teachers’ Federation, District 4 (1984), 1984 CanLII 5145 (ON LA), 14 L.A.C. (3d) 17 (Brandt)

Decision

Having carefully considered the submissions of the parties, I conclude that I cannot accept that the Employer breached any obligation to the grievor in terms of a duty of fairness or her right to union representation under the collective agreement or the Labour Relations Act.

The GSB has held that there is no right, under the collective agreement, to union representation during a pre-disciplinary meeting. OPSEU (Tanevsky), supra at p. 9. Certainly, there is a practice to do so, but there is no provision for it under the collective agreement. Under the Labour Relations Act, the right to union representation is limited to “a meeting called by the employer to charge an employee with misconduct or to impose discipline.” Windsor Western Hospital, supra at par. 29; OPSEU (Kent), supra.

The GSB case law is somewhat less clear as to whether or not a duty of fairness exists. In Re OPSEU (Grummet) and Ministry of Financial Institutions, supra, Vice Chair Keller decided that the Ministry violated the duty of fairness – described as “minimum standards of procedural fairness” – when it terminated the grievor without providing her with the reasons for that decision or an opportunity to advance reasons to try to alter that decision. In that case, however, no argument was made that the duty of fairness did not apply – only that it had been met.

In contrast, in OPSEU (Tanevsky) and Ministry of Consumer & Commercial Relations, supra, Vice-Chair Dissanayake upheld the discharge of an employee. The Union there had argued that the discharge was rendered illegal because there was a lack of procedural fairness preceding the discharge. Specifically, it was alleged that management, while purporting to extend the right to union representation, denied her that right by deliberately refusing to divulge the nature of the allegations and purpose of the meeting. The grievor had been advised by her supervisor that a serious allegation had been made against her, that a meeting had been scheduled for the following day, and that she could have a union representative at the meeting. When the grievor inquired about the allegation, her supervisor told her that she could not discuss that. The grievor attended the meeting without union representation.

The Board rejected the fairness argument. It first noted that there is no right, under the collective agreement or any legislation, to union representation at a pre-disciplinary meeting. It then reviewed the duty of fairness, as set forth by the Supreme Court of Canada in Re Nicholson and Haldimand-Norfolk Regional Board of Commissioners of Police, supra, which, the Board held, stands “for a general proposition that employers of public servants and persons holding public office are obliged to exercise their disciplinary powers fairly and in accordance with principles of natural justice.” (Decision at p. 8).

Based on the facts, the Board at p. 10 determined that “[a]ssuming that the rationale of Nicholson is otherwise applicable to the grievor, we cannot conclude that she was denied the fairness and natural justice contemplated by the court.” The Board relied on the fact that the grievor was advised that there was a serious allegation against her, and at the meeting, the complete details of the allegations were related to the grievor and she was given a full opportunity to respond.

The Board further ruled at p. 10 that “we cannot extend the Nicholson principle as including a right to union representation at a disciplinary meeting.” In so ruling, the Board cited a decision by Arbitrator Brandt in Re Board of Education for the City of London, supra, which held that it did not appear that the fairness doctrine in Nicholson was intended to apply to employees whose employment relationship was governed by provisions of a collective agreement, since the grievance arbitration process ensured a form of procedural protection.

Accordingly, OPSEU (Naversky) appears to conclude that the duty of fairness does not apply to employees covered by a collective agreement. Another issue is whether the duty of fairness applies to a decision to suspend an employee.

In my view, I need not decide whether the duty of fairness applies because even if it did apply, I conclude that the Employer met the duty of fairness as described by the Supreme Court of Canada. In Nicholson, supra, the employer had dismissed a probationary constable without a hearing. He was not told why he was dismissed, nor given any notice, prior to dismissal, of the likelihood of that or any opportunity to make representations before his services were terminated. In a judgement by Chief Justice Laskin, the court held that the employer owed a general duty of fairness. At pp. 682-683, he stated:

In my opinion, the appellant should have been told why his services were no longer required and given an opportunity, whether orally or in writing as the Board might determine, to respond. The Board itself, I would think, would wish to be certain that it had not made a mistake in some fact or circumstance which it deemed relevant to its determination. Once it had the appellant’s response, it would be for the Board to decide on what action to take, without its decision being reviewable elsewhere, always premising good faith. Such a course provides fairness to the appellant, and it is fair as well to the Board’s right, as a public authority to decide, once it had the appellant’s responses, whether a person in his position should be allowed to continue in office to the point where his procedural protection was enlarged. Status in office deserves this minimal protection, however brief the period for which the office is held.

Similarly, in Knight v. Indian Head School Division No. 19, supra, the Court again dealt with the duty of fairness and stated at p. 685 that “the aim is not to create ‘procedural perfection’ but to achieve a certain balance between the need for fairness, efficiency and predictability of outcome.” The key was whether the respondent “had knowledge of the reasons for his dismissal and had an opportunity to be heard by the Board.” If so, the requirement of procedural fairness would be satisfied.

In the present matter, the grievor clearly had knowledge of the reasons for the Employer’s concerns. She was advised in writing, several times, of the specific allegations and that discipline might result. She was told that the audits were a matter of serious concern to the Employer and the audit results were presented. She was given time to review them and an opportunity to refute them. The evidence shows that she did – specifically in regard to a number of cases and more generally in regard to audit methodology and her accommodation needs. In both meetings, she was aided by a union representative.

Although there is some dispute regarding whether the grievor was “cut off” from refuting the specific audit findings, there is no allegation that the Employer failed to meet any duty of fairness obligation on this basis. Rather, the challenge is limited to the Employer’s failure to discuss the intended level of discipline with the grievor.

There is no suggestion in the case law, however, that the duty of fairness includes a duty to discuss the intended level of discipline. While it is true, as the Union suggests, that in these cases the penalty, discharge, was known, the key factors are notice – being informed of the allegations - and an opportunity to be heard. In fact, the Court’s decision in Nicholson seems to indicate that once the employer has the employee’s response to the allegations, “it would be for the Board to decide on what action to take…”

Similarly, here, under the collective agreement, it is for the Employer to decide on discipline, subject to the requirement of just cause. Under Article 2, the employer has the right to “discipline, dismiss or suspend employees for just cause…” The individual has the right to grieve that decision and challenge it through the grievance procedure. It is simply too big a leap to impose, based on the duty of fairness as it has been expressed by the Supreme Court of Canada and the jurisprudence, a requirement that the Employer discuss what level of discipline it intends to impose. The duty of fairness does not extend so far.

At times, it may be prudent for an employer for discuss the intended level of discipline with an employee and the Union, but there is no legal requirement to do so, or any such right under the collective agreement. In contrast, in Re Ontario Hydro, supra, the collective agreement provided that “[b]efore any penalty meted out to an employee that results in a loss of normal base earnings is confirmed by Ontario Hydro, the chief steward will be informed previous to the penalty being imposed and be given an opportunity to present to Ontario Hydro any information that may have been overlooked.” Under this provision, the board of arbitration ruled that the employer must provide the union with notice, full particulars and an opportunity to discuss the matter prior to confirming the discipline. There is no similar language or obligation under the parties’ collective agreement.

Conclusion

Accordingly, for all of the foregoing reasons, the Union’s preliminary objection to the imposition of the discipline is denied. The hearing on the merits of the grievance – and the other outstanding grievances – will proceed.

Issued at Toronto this 22^nd day of June, 2005.