Re The Crown in right of Ontario (Liquor Control Board of Ontario) and Ontario Liquor Boards Employees' Union (East)
[Indexed as: Ontario (Liquor Control Board of Ontario) and O.L.B.E.U. (East) (Re)]
File No. 2004-4059 Ontario Crown Employees Grievance Settlement Board N.V Dissanayake
Heard: June 30, 2005 Decision rendered: July 11, 2005
INTERIM AWARD concerning motion to bifurcate hearing. Motion denied
C. Flood, for the union. A. Freedman, for the employer.
INTERIM AWARD
The Board is seized with a discharge grievance filed by Mr. Leon East, whose employment as a warehouse worker at the Durham facility was terminated by the employer effective February 25, 2005. The union has taken the position inter alia, that the discharge was void ab initio because the employer contravened article 26.3, by meeting with the grievor on February 3, 2005 without union repre-sentation. That article provides:
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 has moved that the article 26.3 issue be heard and determined as a preliminary matter, before hearing the merits of the grievance. The employer opposes the proposed bifurcation. At the commencement of the hearing I commented to counsel that in a motion for bifurcation of this sort, the key considerations in my mind would be efficiency, whether the bifurcation would be dispositive of the grievance and whether bifurcation would prejudice either of the parties. Those considerations are described by Vice-Chair Harris in Re Stewart 1999/98 at para 8: In deciding whether to bifurcate proceedings the Board seeks to maximize efficiency in the hearing process. If the early resolution of an issue may be dispositive of the matters before it, then bifurcation is a useful procedural tool, provided there is no unfairness to any party in following such a procedure.
Counsel for the union cited a number of prior GSB decisions to support his assertion that if a contravention of article 26.3 is found, the necessary result is that the discipline in question is declared void ab initio. The employer did not dispute this assertion. It suffices to note the observation made in Re Simpson, 1469/01 (Dissanayake) as follows:
It is now settled law that the rights conferred by article 26.3 are substantive, and not procedural and that as a result where there is a breach of the provision, the resulting remedy is a declaration that the discipline is void ab initio. See Re LaHay, 809/94 (Gorsky); Re Pedneault, 1568/98 (Briggs); Re Franssen, (supra) and Re Xanthopoulos, 1372/01 (Abramsky).
Union counsel submitted that a hearing on the merits of the discharge grievance would be very complex and lengthy. The union would lead evidence of a previous discharge of the grievor following which the grievor returned to work pursuant to a last chance agreement. Subsequently a dispute arose whether the grievor had resigned. This dispute was grieved and the grievor obtained a decision from the GSB resulting in his return to work with compen-sation. The union would be asserting that the discharge which is the subject of the instant grievance is a retaliation against the grievor for heaving successfully grieved against the employer. The union informed that the grievor had filed 3 other grievances, which the union would allege established a pattern of harassment and discrimination against the grievor following his return to work. The union would be moving that those three grievances be consolidated with the instant discharge grievance. In addition, the union stated that the employer had engaged an investigator to surreptitiously videotape the grievor's activities during off work hours, and the employer expects to introduce that evidence in support of the discharge. The union would be arguing that the surveillance of the grievor was not legitimate because the employer had no reasonable basis to initiate the surveillance, and the surveillance was done in an unreasonable manner. The union intends to cross-examine the investigator and urge the Board not to admit the videotape evidence. This issue would involve a significant volume of evidence and complex legal issues. Employer counsel did not dispute that the hearing on the merits of the grievance would be complex and lengthy. In fact, his recitation of the employer's proposed evidence confirmed that fact. However, the thrust of the employer's position was that bifurcating the article 26.3 issue would not result in gaining any efficiency but on the contrary would result in additional hearing time and duplication of evidence. In short, the position was that, for the Board to determine the article 26.3 issue the Board would have to hear the bulk of the evidence that would be adduced at a hearing on the merits. Counsel stated that the issue under article 26.3 was whether the meeting on February 3, 2003 was "for the purpose of discussing a matter which may result in disciplinary action being taken against the employee". The employer would be submitting that that was not
the purpose of the meeting in question. The purpose of the meeting was to discuss the continuation of the grievor's restrictions and to inquire about the medical reassessment that had taken place around that time. Counsel submitted that it was critical that the employer be allowed to place that meeting in its proper context. Counsel submitted that to understand the context, the Board needed to hear evidence to show that the meeting played no role in the investigation procedure the employer undertook. To demonstrate that disconnect, evidence about the employer's investigation from start to finish is necessary. This would include evidence about the nature of the grievor's injury, his representations about restrictions, what caused the employer to be suspicious, the surveillance it initiated to verify those suspicions, what the videotape disclosed and the basis upon which the decision to discharge the grievor was reached. Counsel submitted that all of that evidence is required to demonstrate that the February 3 meeting had no role to play in the investigation that led to the grievor's discharge. On that basis, the employer submitted that the evidence relevant to the article 26.3 issue is inextricably interwoven with the evidence on the merits of the grievance. In addition, Counsel gave notice that in the event the Board finds a breach of article 26.3 and declares the discharge void ab initio in accordance with its jurisprudence, the employer would be taking the position that the grievor's remedy nevertheless should be restricted to monetary damages because the employment relationship had been irreparably destroyed. This argument would require evidence that the grievor misrepresented on this occasion also, which would necessarily involve evidence on the merits of the grievance. In support of its motion for bifurcation, the union referred me to the following authorities: Re School District No. 27 (Cariboo-Chilcotin) and Cariboo-Chilcotin Teachers' Assn. (1994), 46 L.A.C. (4th)385(Kinzie); Re British Columbia and B.C.G.E.U. (1995), 47L.A.C.(4th)238(Kinzie); Re Nova Scotia and N.S.G.E.U. (Coates) (1999), 83L.A.C. (4th) 218(North); Re Halifax Regional School Board and N.S.T. U. (Daye) (2002), 116L.A.C.(4th)412(MacDonald).
Employer counsel relied on Re Toronto (City) and C. U.P..E., Loc. 79 (2004), 128L.A.C.(4th)217(Kirkwood), which he submitted
was on all fours with the instant case. In that case the collective agreement contained the following provision [p. 219]
Whenever an employee is requested to report for a disciplinary discussion with a supervisor, prior to any disciplinary action being taken, such employee shall have the right of having a Steward or Local 79 Representative present at such meeting or, if neither are available, he/she shall have the right to the presence of an employee of his/her choice who is on duty at his/her place of work at the time the discussion takes place.
The employer had terminated the grievor for misrepresenting the injuries, which he claimed he had received at work, for misrepresenting his inability to work, and for fraudulently obtaining benefits under the Workplace Safety and Insurance Act, 1997, S.O. 1997, c. 16, Sch. A. The union claimed that the employer's telephone contact with the grievor after the grievor's actions had been surveilled by a private investigator was a violation of the union representation clause, which the union claimed, rendered the discharge null and void. The union took the position that the union representation issue should be bifurcated and dealt with as a preliminary issue. The employer opposed the bifurcation. Arbitrator Kirkwood noted that "a decision to bifurcate the hearing is dependent upon fairness to the parties, and the practicality and economy of time" [p. 220]. She went on to hold [p. 220]:
In order to determine whether the telephone conversation violated the terms of the collective agreement it would be necessary to consider the context surrounding the telephone conversation to understand the nature of the discussion and purpose of the discussion, and its role in the decision-making process. I therefore accept the employer counsel's submission that it would be necessary to hear all the employer's evidence relating to the investigation procedure, and how and when the decision-making process occurred to determine the preliminary matter. This would involve not merely evidence relating to the contents of the telephone call, as submitted by union counsel. I accept employer coun-sel's submissions that the evidence is necessary to decide this preliminary matter is intertwined with the facts leading up to the discharge.
Further, it does not appear from the submissions of counsel that if such evidence could be separated from the evidence on the merits, there would be an appreciable savings of time as opposed to hearing the matter in its entirety. It does not appear that the evidence on the preliminary question can be restricted to the preliminary issue to make it desirable to hear only the preliminary matter on the possibility that it will resolve the matter.
What is clear from the case law is that the decision to bifurcate depends in each case, upon the considerations of practicality, economy
and efficiency and fairness. The decision must be made on the basis of the respective counsel's submissions as to what positions it would take on the union representation issue. I agree with union counsel that article 26.3 is broader than the provision in Re City of Toronto. Counsel submitted that in the present case, it would not be necessary for the union to establish that the employer intended to discuss any disciplinary issues at the February 3rd meeting or that the employer actually took into account anything that occurred at that meeting in deciding to terminate the grievor. Nevertheless, counsel asserted also that the evidence will show that the February 3 meeting was a continuation of the employer's investigation. He thus submitted that for the article 26.3 issue, it was "key" that in January 2005 the employer had commenced a disciplinary investigation of the grievor. He submitted that the evidence will be clear that "the purpose of the meeting was to discuss a matter which may lead to discipline and that in fact it did lead to discipline." Counsel submitted that following the February 3rd meeting with no union representation, the employer convened a formal disciplinary meeting with union representation on February 23, 2005. The evidence will be that the employer directly relied upon and compared the statements the grievor had made on February 3rd with what was disclosed on the surveillance tapes in coming to the conclusion that the grievor had "lied", which led to the decision to discharge the grievor. Based on his opening statement and submissions on the motion to bifurcate, it is clear that the union was asserting that there was a direct link between the February 3rd meeting and the employer's disciplinary investigation of the grievor, and further that the employer relied upon statements made by the grievor on February 3rd in determining that the grievor was guilty of misrepresentation, which in turn led to his discharge.
I have determined that given that position of the union, the employer is entitled to establish its contrary position that there was a total disconnect between the February 3rd meeting and the disciplinary process by demonstrating what the total investigation consisted of. While bifurcation would avoid dealing with certain issues such as the dispute as to the admissibility of the surveillance evidence, I have determined that in balancing the limited potential for gaining efficiency with the need for fairness,
the overall considerations do not favour bifurcation in the particular circumstances of this case. For the foregoing reasons the union's motion for bifurcation is denied. The issue under article 26.3 will be dealt with together with all of the other issues arising out of the grievance and determined at the end of the hearing. I remain seized of the grievance for that purpose. The parties may request the Registrar to schedule hearing dates for this matter.