GSB# 2002-2915

IN THE MATTER OF AN ARBITRATION

Under

THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT

Before

THE GRIEVANCE SETTLEMENT BOARD

BETWEEN

Professional Engineers Government of Ontario

(Shannon)

Association

• and -

The Crown in Right of Ontario

(Ministry of the Environment)

Employer

BEFORE

Bram Herlich

Vice-Chair

FOR THE ASSOCIATION

Larry Robbins

Labour Consultant

FOR THE EMPLOYER

Christopher Jodhan

Counsel

Management Board Secretariat

HEARING

May 21, June 19, October 22, November 18 & 21, 2003; January 29, February 4, April 7 & 13, May 5, 6 & 31, October 6 & 7, 2004; January 10 & 18, February 2, 2005.

Decision

Background

Robert Shannon (the “grievor”) commenced his employment with the Ministry in October 1990 as a District Engineer in the Niagara District Office in St. Catharines. He maintained that position until his discharge on October 18, 2002. The resulting grievance is the subject of the instant proceedings.

No objection was raised to my authority and jurisdiction to hear and determine this matter. The union did argue, however, among other things, that the grievance ought to be allowed and the discharge set aside on the basis of the delay in its imposition. The alleged misconduct which resulted in the termination occurred in early March 2002. The grievor was not discharged, however, until more than 7 months after the impugned conduct. The union was content, however, to argue this issue “at the end of the day” and it will be addressed later in this decision.

The conduct (to be described in greater detail shortly) which resulted in the termination related to certain “work”, i.e. certain communications the grievor had, in respect of a particular Ministry file, referred to as the “Campden project” (it, too, will be described in greater detail below). The employer asserts that the grievor had been explicitly instructed not to work on this file, an assertion which is specifically denied by the union.

The employer granted that the grievor’s misconduct may well have been insufficient, in and of itself, to necessitate his discharge. However, in effecting the termination and in supporting it before me, the employer relied on the grievor’s disciplinary record to assert that the triggering events constituted a culminating incident thereby warranting the discharge. In the alternative, the employer submitted that, even if termination were found to be an excessive penalty, the grievor’s cumulative conduct has so irreparably damaged the employment relationship as to render reinstatement entirely inadvisable. It asks, in that event, that I exercise my authority to fashion a remedy which excludes reinstatement.

For its part, the union, as already indicated, argued that the grievance ought to be allowed on the basis of the employer’s delay in effecting the discharge. In the event I was prepared to otherwise assess the discharge on its merits, the union took the employer’s concession one step further: not only did the grievor’s conduct not warrant discharge, it disclosed no basis whatsoever for the imposition of any discipline. Finally, in the event I were persuaded that the conduct was culpable, the penalty of discharge, even considering the grievor’s disciplinary record, was too harsh. In this latter connection the union strenuously resisted the employer’s urgings that a remedy ought to be fashioned which precluded the grievor’s reinstatement.

The hearing in this matter consumed some 17 days over a period approaching two years in its duration. The parties escorted us through evidentiary terrain far broader than absolutely required for the purposes of my deliberations. The parties’ representatives are not to be criticized – and I do not do so or intend to do so – on the contrary, they conducted themselves with dignity and professionalism throughout the proceedings. It is, however, unfortunate for all concerned, that so much time has elapsed while this matter has remained outstanding. The cautious approach of the advocate intent on insuring that all evidence of any potential relevance is put before an adjudicative tribunal is not an unfamiliar one. And while it may not be fully reflected in this award, I too have taken the time required to insure a thorough review of all of the evidence, the voluminous materials and the abundant case law that was placed before me.

In an effort to recount the salient facts in a more or less chronological fashion and to isolate those areas where the evidence was disputed, I shall begin by describing three main factual areas: the grievor’s disciplinary record; the Campden project; and the events giving rise to the grievor’s termination. For reasons which will become apparent, however, I will interrupt this factual accounting with a consideration of the union’s submission that the discharge ought to be set aside because of the delay in its implementation. With respect to the two former factual areas, there is little, if any, relevant factual dispute between the parties. The same is not true of the third.

The grievor’s disciplinary record

Among other things, a review of the grievor’s disciplinary record indicates that delay in bringing finality to disciplinary matters is not the exclusive purview of the parties’ representatives or of this Board. It is, unfortunately, apparently not a stranger to these parties in their collective agreement administration.

Apart from those which precipitated the discharge, all of the events which resulted in disciplinary consequences for the grievor took place in 2000, the most recent of which occurred some 2 years prior to the grievor’s discharge. There are 5 items on the grievor’s disciplinary file:

1. The first item I was pointed to was a “letter of counsel” regarding an inappropriate loud outburst and confrontational behaviour. The letter is dated February 28, 2000 and relates to an incident which transpired earlier that month. I note, however, that, on its face, this letter is not disciplinary and was not really relied upon as such by the employer. (Indeed, the parties agreed that, although the letter was to be marked as an exhibit, it was not to be taken as proof of its contents.) The employer did rely on this letter for the purposes of its alternative argument against reinstatement but it is, despite my allusion to it here, not properly part of the grievor’s disciplinary record.

2. The next relevant event, which did result in the imposition of discipline, took place on June 12, 2000. The grievor served a Field Order despite prior instructions that he was not to engage in such activity. For reasons which were not fully explained (although I do note that the grievor’s absence on sick leave for the first six months of 2001 appears to have factored in to the delay), discipline was not imposed until July 10, 2001 when the grievor was assessed a 10-day suspension without pay. A grievance was filed, however, and, ultimately, a settlement, dated January 7, 2002, was arrived at whereby the suspension was reduced to a written warning dated January 28, 2002. The settlement and the resulting letter indicated that this disciplinary notation was to remain on the grievor’s file until July 7, 2003 (a period which I note, whether in relation to the date of the original or revised letter constitutes a reduction in the 3 year period contemplated by Article 17.3.2 of the collective agreement).

3. A further incident transpired in August 2000. The record discloses that the grievor attended a meeting in Ottawa purportedly as a representative of the Ministry despite prior instruction that he was not permitted to do so. This resulted in the timely imposition of a letter of reprimand dated August 29, 2000. No grievance was filed. Although this precipitating event followed the one referred to in the previous paragraph, closure on this disciplinary matter was achieved some 17 months prior to the resolution of the earlier event.

4. The next event which resulted in discipline occurred on or about September 19, 2000. The record discloses that the grievor was disciplined as a result of aggressive behaviour and insubordination demonstrated to his then supervisor, Dr. Dennis Corr. Initially, on July 10, 2001, the employer imposed a 15-day suspension in relation to this misconduct. A grievance was filed, however, and, by virtue of a settlement dated January 7, 2002 (the same settlement referred to earlier – it resolved two separate grievances), the 15-day suspension was reduced to 3 days. An amended letter of discipline was issued on January 22, 2002. The settlement and the resulting letter indicated that this disciplinary notation was to remain on the grievor’s file until January 7, 2004 (a period which, as in relation to the other grievance settled at the same time, constitutes a reduction in the 3 year period contemplated by Article 17.3.2 of the collective agreement).

5. The final disciplinary event on file is a one-day suspension imposed on or about December 21, 2000. The grievor failed to provide his then supervisor, Dr. Corr, with an up to date list of current projects and other information as he had been instructed to do. No grievance was filed in relation to this discipline.

Although not part of the disciplinary record, I note the parties’ agreement to certain other facts which may suggest something about the grievor’s desire or ability to politely accept any subjugation to managerial authority.

Shortly after receiving the letter of reprimand described in item #3 above, the grievor, although no grievance was ever filed, sent an e-mail to Kal Haniff, the Director of the West Central Region of the Ministry. The e-mail was critical of the discipline he had received and was copied not only to numerous Ministry officials, but also to the Premier. (No discipline was imposed on the grievor in respect of these communications.)

Shortly after receiving the one-day suspension described in Item #5 above, the grievor made allegations against Dennis Corr, filed a complaint and initiated proceedings under the WDHP policy. The WDHP investigator’s report concluded that the allegation had not been substantiated.

And finally, shortly after the parties had entered into the settlement dated January 7, 2002 (disposing of items # 2 and # 4 set out above), the grievor wrote a letter to the Minister of the Environment which was critical of both Mr. Haniff and Dr. Corr. (No discipline was imposed on the grievor in respect of these communications.)

It may be useful, for further reference, to view the grievor’s record in more summary and graphic terms. From the perspective of the date of imposition (or resolution of the imposition) of discipline, the grievor’s record, immediately prior to his discharge, can be viewed as follows:

Ultimate date of imposition

of discipline Discipline imposed

. August 28, 2000 letter of reprimand

December 21, 2000 one-day suspension

January 25, 2002 3-day suspension

January 28, 2002 written warning

It will be at least equally useful to view the grievor’s disciplinary record in relation to the date of the misconduct and the resulting discipline. That approach yields the following:

Date of misconduct Discipline imposed

June 12, 2000 written warning

August 4, 2000 letter of reprimand

September 19, 2000 3-day suspension

December 8, 2000 one-day suspension

It is perhaps worth recalling that the grievor was discharged in October of 2002 (albeit for conduct in March of that year). His most recent culpable conduct prior to the events giving rise to the discharge was in December 2000. Thus – but of course, for the events giving rise to the discharge – the grievor had no disciplinary events on his file for a period in excess of 22 months leading up to the discharge (although this period included a period of sick leave of some 6 months duration). Depending perhaps on which of the above charts is to be preferred, the grievor’s most recent prior discipline at the time of his discharge was either a written warning or a one-day suspension.

The Campden project

Although we will examine the events in greater detail below, the conduct which gave rise to the grievor’s discharge was his (admitted) “work” done in relation to the Campden project despite having been specifically instructed to refrain from doing any such work on that project. The existence and extent of any such prohibition is a significant area of factual dispute between the parties.

Many of the witnesses touched on various aspects of the history and progress of the Campden project. Little of that evidence was controversial and I do not intend to provide a detailed accounting of the genesis and development of the project. I will, however, based largely on the evidence of Rich Vickers, who has been the Area Supervisor for the Niagara District Office of the Ministry in St. Catharines from 1998 to the hearing in this matter, sketch out the broad outlines of the project.

Concern about the Campden area predated Mr. Vickers’ arrival in the St. Catharines office. Over a period of decades, various consultants’ studies prepared for the Town of Lincoln consistently identified problems with contaminated ground water and a failing sceptic system in the hamlet of Campden. A sanitary survey undertaken by public health authorities in 1988 concluded that a majority of the existing single lot residential sceptic systems in Campden were failing and causing “breakouts”.

Various options to remedy the difficulties were canvassed, at least one of which (referred to as the “lagoon quarry”) was, in or around 1998, even the subject of an environmental assessment. The Regional Municipality of Niagara (hereinafter the “Region”) which, along with the Town of Lincoln (hereinafter the “Town”) would bear the primary responsibility for any remedial project, ultimately opted, however, not to pursue that particular option (which involved a public-private partnership).

There is also no dispute that, around that same time, the grievor had some involvement with the Campden file. Indeed, in October 1998 the grievor prepared two virtually identically worded Notices of Proposed Field Order – one was served on the Town, the other on the Region. These documents were issued and served pursuant to the terms of the Ontario Water Resources Act (the “OWRA”). The documents notify the recipients of the Ministry’s intention to formally issue a Field Order directing compliance with the OWRA. These particular notices evidenced an intention to direct the Town and the Region to obtain the necessary approvals for and to install and operate the necessary control equipment. The proposed orders were issued as a result of the grievor’s observations on a site visit and his resulting concerns which were enumerated in the Field Observation Report appended to the Notices.

While this might otherwise be viewed as a significant step, it also appears that the grievor’s proposed orders were never actually issued. Indeed, Mr. Vickers, during his testimony was not the least reluctant to express his disapproval of the Notices having been issued at all. The precise nature of his concerns appear to have been twofold: he did not agree, strategically, with the timing of the move, thinking it to be premature and preferring perhaps to continue to work to develop consensus among the stakeholders rather than elevating matters to the level of confrontation associated with the issuance of the Notices. But Mr. Vickers appeared at least as equally troubled by certain process concerns. He was not consulted (and felt he ought to have been) prior to the issuance of the Notices. He also experienced some concern about who (i.e. he or the grievor) was responsible for the file and took that up with the then District Manager. That concern does not appear to have been addressed at the time.

Whatever the merits of Mr. Vickers’ concerns, it should be noted that he was not (then or subsequently) the grievor’s supervisor and, in any event, there was no suggestion by anyone that the grievor’s conduct in issuing the Notices either warranted or resulted in any disciplinary response.

Given the description by Mr. Vickers of the Campden issue spanning decades, identifying the grievor’s Notices as the start of our chronology is clearly somewhat selective and arbitrary. Similarly, it is not necessary to detail all of the events which followed those Notices. Suffice it to say that an extremely complicated and protracted process unfolded involving not only the Ministry but also multiple politicians from various jurisdictions (including some at the very highest of levels) and bureaucrats and other regulatory bodies (e.g. the Niagara Escarpment Commission). The ultimate project bore a price tag in the range of three million dollars. Funding and the apportionment of that cost among various political levels was an ongoing issue. And given the serious health concerns that were emerging (at one point the Medical Officer of Health expressed an opinion in writing warning of the possibility of outbreaks of disease), it is not the least surprising that issues related to the matter caught the attention of local media from time to time.

To bring the chronology rapidly forward and to again pick a somewhat arbitrary point, things appear, at least from the point of view of the Ministry, to have come to a head in early 2001. Both the Town and the Region had fairly consistently indicated their commitment, in principle, to undertaking the necessary construction subject to their ability to pay. Some provincial sources had been tapped early in the process to provide funding in the range of 10% of the anticipated project cost. But the local authorities determined that much more support was needed. They were consequently pursuing funds from the Ontario Super Build Corporation, an entity which provided joint federal provincial grants, in this case through its Ontario Small Town and Rural Development (OSTAR) component. No such funding had yet been secured

Thus, to give only a flavour of how the various forces may have been aligned, or even deadlocked, at the time, one can imagine three of the primary sets of players: the Ministry pressing the Town and Region to undertake a remedial project without (yet) actually issuing any element of compulsion (through fresh Notices or actual Orders); the local officials wishing to resolve the issue and fix the problem but paralyzed by the magnitude of a three million dollar price tag; and the funding authorities considering a significant application from local authorities who faced no legal obligation or compulsion to proceed with the project.

By way of elaboration, one can consider a letter dated March 1, 2001 from John Kukalis, the Town’s Director of Public Works addressed to Paul Nieweglowski (Mr. Vickers’ and, ultimately, the grievor’s supervisor), the Ministry’s District Manager. Mr. Nieweglowski had recently written to the Town asking that they provide “a construction schedule and council resolution for the commitment of funds for the installation of your municipality’s approved works by March 5, 2001.” Mr. Kukalik’s March 1, 2001 reply indicated that the Town Council had taken the position that it was ready to proceed with the project, subject to confirmation of significant OSTAR funding. Owing, however, to that and other uncertainties, Mr. Kukalis indicated that the Town was unable to provide a construction schedule at that time.

While it is not particularly critical for our purposes, that response may well have provided the impetus for the Ministry to move to break the logjam. Within approximately one week of that response Mr. Nieweglowski issued a Notice of Proposed Order under the OWRA. The Order became final on April 10, 2001 and directed the Town to take the necessary steps to establish and operate the sanitary sewage collection system sewage works (as approved under the OWRA) including all ancillary steps necessary to provide a safe and reliable disposal system for sanitary sewage to be established and in operation by October 31, 2001.

And with that the project commenced in earnest.

The completion deadline of the Ministry Order was ultimately extended for a further month on the Town’s request. However, by no later than December 2001 the project was essentially complete and, perhaps more importantly, the new system was in operation.

Unfortunately and despite the completion of the project, the OSTAR funding initially identified as critical to the success of the project had not yet been secured. While that funding, to the tune of in excess of two million dollars, was subsequently secured, that did not occur until January 2002 after the completion of the project.

I do not mean, in this unfairly brief history of the Campden matter, to belittle the time energy and effort of the multitude of personages whose involvement was critical to the ultimate success of the project. It was a long and arduous effort. It was a contentious and controversial project which, for a substantial period of time, had a high public profile (at least in the locally affected areas).

However, as will be seen, the project forms the backdrop for the events which gave rise to the instant proceedings. We will return to the “work” the grievor did on the Campden project subsequent to its completion later in this award. For the moment, it is sufficient to note that from about October 1998 (when he issued the Notices of Proposed Field Order) until March 2002 (when he performed the “work” on the project which ultimately resulted in his discharge), the grievor appears to have had no significant involvement in the Campden file, which was then clearly under the principal carriage of Mr. Vickers (and, at least latterly in the period, subject to the supervision of Mr. Nieweglowski).

Delay in the imposition of discipline

I turn now to consider the union’s argument that the grievance ought to be allowed or that the grievor’s discharge ought to be viewed as void ab initio because of the employer’s delay of some seven months in effecting it.

Generally speaking, the facts necessary to consider in determining this issue are uncontroverted. The grievor’s impugned conduct took place in March 2002; he was discharged in October of that year.

The grievor’s conduct, however, did not come to the employer’s direct attention until shortly before the discharge was effected. During August and September 2002, there was email correspondence between the grievor and his supervisor, Mr. Nieweglowski. The latter had requested a list of projects the grievor had worked on in the previous year. The request was made for the purposes of facilitating the grievor’s performance evaluation – necessary, among other things, for purposes of establishing entitlement to “pay for performance” wage increases. The grievor ultimately complied with the request, somewhat indirectly, by providing Mr. Nieweglowski with a copy of a computer printout from the “STAR” system used to track work being done on various Ministry projects. The data entered in that program with respect to the grievor’s activities was his own responsibility to enter. Upon receiving and reviewing the contents of the printout, Mr. Nieweglowski noticed some entries which aroused his curiosity. At a meeting held to discuss the matter, the grievor volunteered that the work in question had been done in relation to the Campden project.

There is some irony, which the union relies upon to some extent, in the manner in which this information came to the employer’s attention.

It would appear that the employer was remiss in its obligation to complete its performance evaluation of the grievor. As early as February 2002, the grievor had emailed Mr. Nieweglowski indicating that his last performance management review had been conducted in September 2000 and signalling his desire to have his 2001 review completed to permit the processing of his merit increase. It would also appear, however, that there were some administrative changes underway with respect to the manner and timing of these evaluations generally. The collective agreement, however, is quite clear in its requirement (in section A.7 of Schedule A) that, commencing in 2002, annual performance evaluations were to be completed by June 30. Indeed, Mr. Nieweglowski had also received specific written instructions addressed to all Human Resource Directors from the Acting Director of Management Board Secretariat (dated March 11, 2002) advising that performance evaluations for PEGO employees were to be completed by June 30. In other words, the employer’s failure to complete the grievor’s performance evaluation indicates not merely that it was remiss, but suggests that it may well have been in violation of its collective agreement obligations.

The union points to these facts to argue that while Mr. Nieweglowski may not have had actual knowledge of the grievor’s impugned conduct until September 2002, he should not be permitted to hide behind a violation of the collective agreement to rely on his ignorance of information which would have come to his attention in a more timely fashion had he complied with the collective agreement obligations. Put somewhat differently, the union argues that the information which disclosed the grievor’s impugned conduct was available throughout the period, in the form of the computer data to which the employer had ready access. The employer ought to have consulted this information or, effectively, ought to be deemed to have had the knowledge of its contents.

In support of its argument on this branch of the case, the union referred me to the following cases: Re Borough of North York and Canadian Union of Public Employees, Local 373, (1979), , 20 L.A.C. (2d) 289 (Schiff); Re Air Canada and International Association of Machinists and Aerospace Workers, Local 148, unreported, September 28, 1990 (McCormack); Re Air Canada and Canadian Automobile Workers, Local 2213, (1993), , 34 L.A.C. (4th) 13 (Frumkin); Re University of Ottawa and I.U.O.E., Local 796-B, (1994) , 42 L.A.C. (4th) 300 (Bendel); and AFG Industries Ltd. And Aluminium Brick Glass Workers Union, (1998), , 75 L.A.C. (4th) 336 (Herlich).

For its part, the employer had a number of responses. First, it is clear that management did not have actual knowledge of the grievor’s conduct until September 2002. In each of the cases relied upon by the union, the employer had actual knowledge of the alleged misconduct and, notwithstanding, delayed in the imposition of discipline. On that basis alone, the cases are distinguishable. Certainly, none of those cases were decided on the basis of the “ought to have known” or “constructive knowledge” type of argument being advanced by the union.

But even beyond that essential factual difference, there are other reasons not to give effect to the union’s argument. It is entirely speculative to suggest that had the grievor’s performance appraisal been done earlier, the grievor’s alleged misconduct would have come to light sooner. Further, to give effect to the union’s argument would be tantamount to imposing an unnecessary and undesirable level of employer vigilance in monitoring the work of employees such as the grievor. That was not and is not the purpose of the computer records maintained at the workplace.

Finally, the employer submits, the delay has not worked any prejudice. In circumstances where the parties agreed to argue this issue “at the end of day”, the question of prejudice is not an abstract or theoretical one. All of the evidence has been heard and the grievor had little difficulty recalling (at least his version) of events. Thus, there can be no claim of prejudice resulting – at least with respect to the grievor’s ability to advance the grievance – from the delay in the imposition of discipline.

I have considered submissions of the parties and, for the following reasons, am not prepared to give effect to the union’s argument.

While there may be some variety in the arbitral views expressed about the theoretical underpinnings of its application, there is no question that arbitrators have long embraced the view that an employer ought to impose discipline in a timely fashion and that failing to do so may render the purported discipline void, or at least voidable.

In cases of this sort, arbitrators have considered the length of the delay, the reasons for the delay and its prejudicial effect.

The substantial delay in this case undoubtedly warrants some explanation. But, equally, there is no issue that the employer was unaware of the grievor’s impugned conduct for virtually all of the period of delay.

While the union’s assertion that the employer ought not to be permitted to hide behind its own collective agreement violation (having not completed the grievor’s performance appraisal within the stipulated time) is not without some attraction, it is problematic for several reasons. First, some degree of speculation is required to posit that a timely completion of the performance appraisal would have resulted in a (more) timely imposition of discipline. But even were I inclined to engage in the requisite speculation, it is not clear precisely where it leads – had the performance appraisal been completed, as required under the collective agreement, by June 30 and had it legitimately taken until then for the grievor’s conduct to have come to the attention of the employer, the resulting discipline would have been imposed some four months after the events – its timeliness but a relative concept.

More importantly, perhaps, there are certain demands of symmetry operative here. The grievance I am dealing with involves the grievor’s termination – not the employer’s failure to complete a performance appraisal in a timely fashion. No grievance raising the latter issue has been called to my attention. One can only speculate as to how events might have unfolded (and whether the imposition of discipline might have been effected in a more timely manner) had such a grievance been filed. But if the employer ought not to be permitted to hide behind an apparent breach of the collective agreement, then perhaps equally, the union ought not to be able to profit from its own failure to file a grievance (which, if the union’s main argument is accepted would have brought the grievor’s conduct to the employer’s attention), in order to argue that the employer delayed in imposing the discipline.

I also accept Mr. Nieweglowski’s uncontradicted evidence about the function of the STAR computer data system. While it does have that capacity, it was not designed and neither has it been used in his office as a tool for monitoring the performance of individual employees. I am certainly reluctant to impose the unnecessary and undesirable level of employer vigilance, through computer based monitoring, that the union’s urgings at least implicitly dictate.

Finally, there is the issue of prejudice. There may be cases where the very length of the delay will give rise to the presumption of resulting prejudice. But as the employer argued, the question of resulting prejudice in this case need not be presumed or otherwise be the subject of speculation. Rather, the resulting prejudice, if any, can be assessed on the basis of the manner in which the union was capable of putting in its case before me. And in that regard, I accept the employer’s submissions as largely, though not entirely, accurate. For it is true that, generally speaking, the grievor rarely protested, while giving his evidence, that he was unable to recall specific material events. Certainly this is true in relation to the “work” that the grievor performed – this was never really the subject of dispute. It is, however, less true in relation to some of the finer details and in particular in some of the areas where there may be some difficulty reconciling the grievor’s evidence with that of employer witnesses. I will have more to say shortly about the manner in which the grievor gave his evidence. But, in the main, I am satisfied that, to the limited extent that the employer’s delay in imposing the discipline on the grievor may have prejudiced the union’s ability to present its case, I am able to and shall remedy such prejudice in a manner short of simply allowing the grievance on the basis of delay.

Subject to the following points, which emerge from my consideration of the delay issue and lead to the final chapter in the chronological narrative recently interrupted, the union’s motion that the grievance be allowed, that the discharge be viewed as void or voidable on the basis of delay is hereby dismissed.

I have already indicated that there is no real dispute about the work the grievor did to arouse the employer’s wrath (I will shortly detail it). There is much more controversy about the manner in which he did the work – more specifically, whether and to what extent the grievor effectively communicated with management at the time – either to seek authorization or, at a minimum, to advise that he was doing the work. The often contradictory evidence in this regard comes from 2 witnesses: the grievor and Mr. Vickers. It is clear that they had at least one relevant conversation although it is difficult to reconcile the conflicting evidence regarding precise details. No one inquired of either of the two witnesses or asked them to detail the contents of this (or these) conversation(s) until 6-7 months after they took place. The conversation(s) were brief and informal. Neither the grievor nor Mr. Vickers would have been likely to attach any particular critical significance to them at the time. In those circumstances and when asked to recall them for the first time 6-7 months later (and before me years later), I would not expect either of the gentlemen to exhibit perfect recall. In this context, I will, however, to the extent it is necessary or where I am otherwise unable to reconcile conflicting evidence, grant the grievor the benefit of the doubt so as to insure that he suffers no unwarranted prejudice from the delay in bringing the apparent significance of what would have been perceived as relatively mundane events to his attention.

I will take a similar approach to some of the conflicts of evidence between the grievor, on the one hand, and Mr. Nieweglowski and Dr. Corr, on the other, in relation to managerial instructions regarding the Campden project.

Before returning to the chronology, the final point which emerges from the facts surrounding the delay issue also relates to the grievor’s conduct. It is abundantly clear that, at least with respect to the work he did, the grievor made no real effort to conceal his activities – all of the relevant documents were found in the file where he had placed them, his STAR entries reflected the work done and when asked for details he unhesitatingly volunteered that the work he had done related to the Campden project. His conduct was neither surreptitious nor, as we shall see, nefarious.

The culminating incident

What the grievor is alleged to have done is far easier to describe – it is essentially undisputed – than the specific manner in which he is alleged to have accomplished it.

I will, however, take a moment to describe, in more general terms, the quality of the viva voce evidence placed before me. I should indicate at the outset that with few, if any, significant exceptions, I do not believe that anyone who testified in these proceedings deliberately proffered false and misleading evidence before this Board. Generally speaking, I accept that all of the witnesses truly believed they were testifying truthfully. There were, however, many points – most much less significant than a limited few – where it is exceedingly difficult to reconcile competing versions of similar events. I am satisfied that nothing more complicated than the simple passage of time combined with the inherent human disability we all share to varying degrees – frailty of memory – go much of the distance in explaining these discrepancies. It will, of course, be recalled that the significance of (what will be seen to be the otherwise fairly benign and pedestrian) central events was not apparent to anyone until some 6-7 months after they transpired. Similarly, there are other events which provide the context for the central events (i.e. instructions about the scope of work the grievor was to perform which were said to have been given to him by more than one supervisor), which were themselves already of considerable vintage. In this context, I have preferred, where possible, to rely on documentary evidence to establish at least the basic factual foundation.

My comments about the effect of imperfect memory, selective perception and retention in the context of events which were already old at the time their significance was first identified and were considerably older when the evidence was presented to the Board are of general application – not directed to any specific witness.

I am compelled, however, to offer some observations about the grievor and his evidence, which was remarkable in many respects. He clearly demonstrated sufficient independence to establish that he might be a difficult adversary in any contest of wills and that, in a situation where there was some need for managerial authority to be exercised or confirmed, he might not be the most cooperative of partners in such an endeavour. Frankly, there were frequent occasions when awaiting his responses to questions posed (whether in chief or in cross-examination) was something akin to holding a lottery ticket and awaiting the draw. And quite apart from the drama of the anticipation, the ultimate correspondence between questions asked and answers offered frequently resembled the correlation one might generally expect between the lottery ticket and the winning numbers. Mr. Shannon demonstrated absolutely no shyness about venturing into areas not the subject of the question posed, or veering into realms that were barely arguably responsive to the questions. Neither did he shrink from clearly formulating answers which he appeared to perceive would most advance the interests of his case – frequently a poor strategy for any witness to adopt.

More significant perhaps is the quality of responses offered once the questioner succeeded in focusing the grievor’s attention (frequently after several protracted attempts) on the question posed. I have already indicated that I do not believe any of the witnesses deliberately mislead the Board. I can, however, point to an example which I believe typifies the relationship between the grievor’s responses and the literal truth.

The grievor was off on sick leave from the beginning of 2001 until the end of June of that year. Following closely upon his return – more specifically, on July 10, 2001 – he received and immediately served the consecutive 10 and 15-day suspensions imposed on him by his then supervisor, Dennis Corr. It will be recalled that these suspensions were levied in July 2001 in respect of conduct which had transpired in June and September of the previous year, 2000. It will also be recalled that although the suspensions were served at the time, the parties’ subsequent settlement modified the penalties of 10 and 15-day suspensions to a written warning and a 3-day suspension respectively.

Thus, the grievor returned to work from a lengthy period of suspension on August 15, 2001. It also appears that it was in this period that a transition took place in the organization of the workplace – Mr. Nieweglowski was in the process of becoming the grievor’s supervisor.

The grievor testified that upon his return to work from sick-leave, he was instructed to sit in a corner and do nothing. My impression was that he intended to “credit” Mr. Nieweglowski for this state of affairs. The latter, quite understandably, in my view, took umbrage with the grievor’s characterization of what had occurred. I do not accept the grievor’s portrayal as the literal truth. That is not to say, however, that it does not capture significant elements of truth notwithstanding its presentation through its bold and undoubtedly embellished imagery. For example, during the period of time between the grievor’s return from sick leave and his suspension (slightly more than 2 weeks), the STAR record discloses virtually no actual substantive work performed by the grievor with the exception of a singular repeated generic entry for “staff meetings”. Whether that state of affairs represents Dr. Corr’s uncertainty about how to deploy the grievor following a lengthy absence or the confusion which may have attended shifting supervisory assignments is of no real interest to me. I am satisfied, however, that the grievor had little work to do during this period and was unhappy about that state of affairs. As I have indicated, these particular events are not germane to our inquiry. I point to them only to demonstrate the sometimes circuitous route that might link the grievor’s evidence with the truth and the dangers which might be associated with accepting that evidence too literally. My general impression, however, is that so long as one had plentiful supplies of grains of salt and the facility to divine or interpret the truth from the grievor’s frequently distorted or exaggerated images of it, the grievor’s evidence was a source of legitimate information. It is true, however, that while the evidence of the employer witnesses did suffer from some of the inherent limitations of memory already discussed, it was not generally necessary to perform the same mental gymnastics to interpret that evidence.

It is in that context and, as indicated much earlier, conferring the benefit of the doubt upon the grievor in instances where the delay concerns are most prominent, that I now turn to a description of the relevant events.

The brief description is as follows. As will be recalled the OSTAR funding for the Campden project was not secured until January 2002, well after the construction had been completed and the new sewer system was up and running. However, despite the funding approval, even by March 2002, none of the promised funds had yet found their way to the local authorities, which were, of course, facing huge debts in view of the already completed construction.

On March 5, 2002, a local St. Catharines newspaper, The Standard, published an article regarding the Campden project. It bore the headline: “Mayor wants to end uncertainty – Red tape holding up Campden sewer funding” and included the following:

Mayor Ray Konkle told town councillors Monday night a letter was received from the province stating up to $2.117 million in funding is available to reimburse the town for the sanitary sewers installed in the hamlet last year.

But first, Konkle said, the province wants to make certain all environmental concerns were addressed during the project’s construction.

“That’s what is confusing about it,” Konkle added in an interview. “They want to see all these environmental concerns that we addressed in the application and in the construction…

“Normally when the grant is announced, you then go ahead and do the construction. This way, we’ve done the work, paid for the product and now the grant’s coming along at the tail end.”

This article came to the grievor’s attention and he faxed a copy of it to a Ministry official and also placed a call to the Town to inquire about the status of the matter. The call was returned by the Mayor and he and the grievor discussed the matter, including the possibility of the grievor assisting in taking some steps to perhaps facilitate the timely delivery of the promised funds to the Town. The Mayor then forwarded a package of documents to the grievor. These included: a cover letter from the Mayor; The Ministry of the Environment’s Certificates of Approval for the project; a letter (referred to in the above newspaper report) from the OSTAR federal/provincial administrators; and a letter from the Town’s Technical Services Manager confirming that the new sewer system was installed and operational.

I pause to note that the letter from the OSTAR administrators provided to the grievor by the Mayor (and discussed in the newspaper report described earlier) was one which the grievor referred to throughout these proceedings as “the wonky letter”. While that may have been a colourful turn of phrase typical of the grievor, it was also evident that there was at least some propriety in the appellation. The letter, addressed to the Chief Administrative Officer of the Town included, for example, the following:

The municipality’s project to construct a communal sewage collection system…is very important from a health and safety perspective. It is essential to insure that you have obtained all the required regulatory approvals…

Staff…will work with your officials to finalize the milestones within the contribution agreement prior to it being sent for required signature(s). The contribution agreement will outline the municipal milestones and the required terms and conditions that you must follow in order to ensure receipt of the funding…

The tone of the letter reflects a perception that this was but the very beginning of detailed lengthy and complicated process of approvals and construction. But clearly, while this may well have represented a first step for OSTAR, the Town had already completed its journey. The grievor’s efforts were aimed at putting the two into the same temporal universe and perhaps facilitating the promised payments – a task which may have taken on some added urgency in the face of an imminent, and ultimately protracted, public service strike.

In any event, in addition to providing the above documents, the Mayor also undertook to have IMS, the general contractor for the project, provide the grievor with some further information. Shortly thereafter, IMS provided further documentation confirming the completion of the project. The grievor forwarded these two sets of documents (i.e. those received from the Mayor as well as those from IMS) to the two officials responsible for OSTAR funding and to the Ministry official involved in the more limited Ministry funding. The fax cover to the OSTAR officials included the following notation: “All orders are in compliance. Certificates of approval attached. Call if further information required.”

The grievor placed the fax covers and faxed documents in the sorting tray to be filed by support staff. The documents (and fax covers) apparently remained in the file thereafter. (Mr. Nieweglowski found them there when he chose to review the file sometime after the grievor had provided him with the STAR printout in September 2002.)

This, in essence, is the “work” the grievor did on the project – the work which resulted in his dismissal.

On its face, there is little, if anything in the grievor’s self-conceived initiative which would appear to warrant discipline. There was no suggestion that any erroneous information had been transmitted or that information was provided to anyone who ought not to have received it. As we shall see, it was the manner in which the grievor did this work much more so than the work having been done which precipitated the employer’s disciplinary response. I will deal with those aspects of the employer’s concerns momentarily. I note, however, that while there was considerable variance in the evidence about the discussion(s) that took place between the grievor and Mr. Vickers, it was agreed by all that the two had at least one informal “in passing” discussion in this time period during which Mr. Vickers confirmed to the grievor that the local authorities were indeed in compliance with the Ministry’s orders. And Mr. Nieweglowski, in his evidence, acknowledged that he himself would have had no hesitation in relying on such an assurance provided by Mr. Vickers.

The letter of termination delivered to the grievor on October 18, 2002 identified his conduct as “a continuance of your failure to follow instructions over the past two and a half years” and the specific conduct in question is identified as the grievor having “provided information to a municipal official and to other stakeholders on the Campden project to which you were not assigned.” Before moving on to what appear to have been the employer’s true concerns with the grievor’s conduct, I note that, apart from what clearly appear to be inaccurate employer notations, there is absolutely nothing in the evidence to suggest that the grievor supplied any information to any municipal official.

But the employer’s real concerns about the grievor’s conduct are rooted in two factual assertions. First, it was asserted that the grievor was specifically and explicitly instructed not to do any work whatsoever on the Campden file. In that context, the work he did, however otherwise innocuous it may have been, was a clear instance of overt and calculated insubordination. Related to and flowing from that concern is the fact that the grievor never sought any specific authorization to do the work he did and never took any steps to advise management that the work had been done.

Before I turn to the specific question of whether the grievor was ever instructed not to work on the Campden file, a more general comment is in order.

It was abundantly clear to me from the evidence, that the scope of the grievor’s previous “misdeeds” was far greater in his supervisors’ minds (and perhaps, too, in reality) than his disciplinary record disclosed. Mr. Nieweglowski, for example, adverted to complaints about the grievor’s performance which were not part of the disciplinary record and Dr. Corr spoke of unparticularized – and perhaps more importantly, undisciplined – transgressions the grievor had allegedly committed (e.g. the grievor’s habit of not attending meetings – a complaint nowhere reflected in the disciplinary record). This no doubt goes some distance to explain, at least in general terms, the employer’s apparent enthusiasm to rush to impose penalties which might be seen to be out of proportion with the formal disciplinary record. The grievor tried the patience of this Board in the manner in which he gave his evidence. The Board has no doubt that he has the capacity to equally keenly try the patience of management. It does not appear, however, that the grievor’s difficulties were well managed. This may well be a case where a more vigilant application of basic managerial obligations and prerogatives might have produced a result much more unfavourable to the grievor. However, in the case before me, the integrity of the culminating incident must be assessed against the backdrop of the grievor’s actual formal disciplinary record.

Two events are pointed to in support of the claim that the grievor had been explicitly instructed not to work on the Campden file.

The fall of 2000 was undoubtedly the nadir of the grievor’s relationship with his prior supervisor, Dr. Corr. During this period the grievor received a less than stellar performance appraisal and at about the same time was involved in an incident of aggressive behaviour towards his supervisor which later resulted in the imposition of a 15-day suspension which was, still later, ultimately reduced to three days. On October 2, 2000 Dr. Corr forwarded the following email to the grievor:

This is to confirm your assigned task list as discussed at your performance appraisal on September 20^th 2000.

You are removed from the following projects as of September 20^th, 2000, Wellandvale (kayak course), Welland River and Ontario Power Generation. You were asked for the relevant contacts for these projects and they will be notified of this change. You asked, if you were contacted, whether you could say that you were no longer working on the project and I agreed. I am confirming to you that you will refer any further questions or discussion to myself or Mr. Nieweglowski, since you are no longer involved in these projects.

You will remain assigned to Lyons Creek, Altieri, 69 Catherine St., and Cytec, with the addition of Manners Cleaners.

You are assigned to give engineering advice upon request to the following projects. Please note the lead staff member for each project.

Kolbec Drive (Rich Vickers), Ian Smith property (Paul Widmeyer), Gallaher (Linda Gabriele).

In the STAC program, you will review the report from Atlas, due date for your completion October 19, 2000, as discussed in your performance appraisal meeting, and proceed with Washington Mills and Exolon.

Although Dr. Corr’s intention may well have been to clarify what the grievor was and was not to be working on, there is no mention of the Campden project in this email and Dr. Corr conceded that there was no discussion whatsoever of the Campden file during the meeting which resulted in this email. There was, thus, no clear identifiable order or instruction to the specific effect that the grievor was prohibited from doing any work whatsoever on the Campden file.

Similar conclusions are inescapable when I consider the discussion the grievor and Mr. Nieweglowski had in September 2001 shortly after the latter took over responsibility as the grievor’s supervisor. First, there is no written record whatsoever of this meeting, only conflicting recollections of an event which took place a full year before any asserted breach of the instructions said to have been given.

Mr. Nieweglowski was clear in his evidence that his intention was to refocus all of the grievor’s efforts to the “STAC” programme and that, in that context, he told the grievor that he was being removed from all other projects and that he was to work exclusively on STAC. The grievor acknowledged, in his evidence, that he had been advised that STAC would constitute at least the majority of his work. His recollection, however, did not include any specific instruction or direction that he cease doing any work whatsoever on previously assigned projects or that he not engage in any follow up residual work in relation to any such project. It is clear, however, from the evidence of both participants, that there was no discussion related specifically or explicitly in any fashion to the Campden project.

I have not found it necessary to determine with utter comprehensive precision what was and was not said during this meeting. Suffice it to say that the truth likely lies somewhere between the versions proffered by the participants. Mr. Nieweglowski’s recollection likely reflects, at least to some extent, his “intention” in the meeting – an intention which may not have always been fully explicitly captured by the words which were uttered. On the grievor’s side, I am satisfied that the discussion indicated somewhat more clearly delineated boundaries around the parameters of his assignment. But for our purposes, it is sufficient to note that no explicit instructions were tendered with respect to the Campden project. I note, as well, Mr. Nieweglowski’s more generalized candid acknowledgements that absent contrary instructions, it would not have been unusual for the grievor to have continued to work on a project he had worked on in the past – and it would not be unusual to receive inquiries about longstanding issues. Further, Mr. Nieweglowski also acknowledged that the grievor would not require specific permission each time he would respond to telephone inquiries or send a fax unless it was in relation to a contentious project and that some element of judgement would be required to determine whether a matter was sensitive or routine.

While there is no real dispute about what documents the grievor received and, in turn, faxed to others, any attempt to construct the specific chronology of constituent and attendant events in all of their minute details is a near impossibility. There are undoubtedly multiple reasons for this. Perhaps chief among them, was the impressive flexibility the grievor offered in his evidence. I am satisfied that much of that “variety” in the grievor’s evidence may be attributable to legitimate difficulties in recollection (e.g. a change in the grievor’s evidence about the relative timing of the March 2002 newspaper article and subsequent events – a change which, perhaps not surprisingly, occurred only after the grievor had the opportunity to review – and ascertain the precise date of – the newspaper article) in respect of which I have already indicated an inclination to permit the grievor the benefit of the doubt.

I am unable, however, to extend that indulgence to all of the grievor’s evidence. In particular, I found his evidence about the nature and extent of his discussions with Mr. Vickers to be breathtakingly elusive. This was not an instance of the grievor’s hyperbolic imagery overtaking the reality it represented. Nor did it flow from genuine memory lapses – the problem with the grievor’s evidence on this point was too much not too little recollection. Indeed, as his evidence progressed through chief and cross-examination, the breadth of the asserted consultations with Mr. Vickers expanded. The evidence not only grew as it unfolded but there were some instances where it was self-contradictory. On the whole and while I still remain loath to ascribe any nefarious motives to the grievor on this score, I generally prefer the evidence of Mr. Vickers to the grievor’s where there were conflicts between the two.

However, this does not negate my conclusion that while the grievor did not seek Mr. Vicker’s authorization (nor, more importantly, that of his supervisor, Mr. Nieweglowski) for what he was about to do, the two did engage in a discussion, however brief, wherein the grievor communicated his concern arising from the newspaper article (and perhaps even the “wonky letter” itself), Mr. Vickers confirmed that the local authorities were indeed in compliance with Ministry orders and where the grievor, in all likelihood, communicated, in however limited a fashion, his intention to follow up (e.g., as he put it, initially, to contact the “capital guys”).

Worthy of discipline?

Was the grievor’s conduct worthy of discipline? In a word: barely.

The grievor’s conduct was dealt with and portrayed before me as a classic instance of insubordination. While the grievor’s conduct was, to a limited extent, inappropriate, I am not persuaded that it is conduct which rises to the level of insubordination.

The parties referred to numerous cases in support of their positions on this issue. For present purposes, I need go no further than a brief consideration of the seminal case of Re Hunter Rose Co. Ltd. And Graphic Arts International Union, Local 28-B (1980), , 27 L.A.C. (2d) 338 (McLaren) which enumerated the elements of the offence as follows (at page 344):

Insubordination is a common type of disciplinary action in labour relations matters and is considered to be of a serious nature because it strikes at the very heart of an employer’s prerogative; the right to manage. Generally, it is felt that the right to order employees to carry out work activities without debate or action which causes loss of respect is essential to the role of management. In order to constitute insubordination in law, it has been held that there are three essential components which must be present in the proven version of events. First, there must be a clear order understood by the grievor…Second, the order must be given by a person in authority over the grievor…Finally, the order must be disobeyed.

On this last point, the award continues (at page 346):

The final criteria to establish insubordination is that an order must have been disobeyed by an employee. The direct refusal of an employee to do something is considered to undermine the managerial functions and, generally, arbitrators have looked for an intention to undermine authority as an element of the offence…

There are two aspects in which I am unpersuaded that a clear case of insubordination has been made out. First, it has not been established that the grievor was ever given the clear direct order prohibiting him from doing any work whatsoever on the Campden file. The more generalized instruction, i.e. that he was being taken off all previous assignments or that he was not to work on unassigned projects, is one which was either not given or not fully understood by the grievor. But in view of Mr. Nieweglowski’s other evidence, even such an instruction might not have precluded a limited response to a residual inquiry on a longstanding matter the grievor had previously worked on.

More significant perhaps, is the question of the grievor’s motivation. For not only am I not persuaded that his motivation was not defined by an intention to undermine managerial authority, I am equally unpersuaded that there was any nefarious motivation at play.

Employer counsel made a valiant effort to explain and present the grievor’s motive as questionable. He suggested there was some essential effort by which the grievor wanted to assist his friend, the Mayor, in getting the promised funds released. First, it appears that the characterization of the grievor and the Mayor as personal friends is one which stretches the reasonable bounds of the category. The grievor testified that he had worked with the Mayor on various occasions over the years. The fact that they may have been on a first-name basis is not terribly surprising (particularly when I consider that the grievor chose, despite the limited nature of our interactions, to address me on a first-name basis as well). In any event, it is clear to me that there was no personal advantage to be gained by either the grievor or the Mayor in the pursuit of this effort.

I was also struck by the relative openness of the grievor’s activities. While he might well have made efforts to more specifically and explicitly communicate his activities to management, neither did he take any of the simplest steps which might have been available to conceal his activities. He placed all of the relevant documents and fax covers in the basket, to be sorted by support staff and placed in the file where Mr. Nieweglowski found them several months later. This suggests to me that the grievor did not believe that he had engaged in any inappropriate activity.

I heard some variety of views about whether and to what extent securing funding is a matter within the purview of the grievor’s branch of the Ministry. Clearly this office’s chief goal is enforcement, not the funding of projects. Yet there was simply nothing in any of the evidence before me to suggest that the grievor’s initiative, however removed it may have been from the Ministry’s core focus, was in any way, in and of itself, inappropriate. On the contrary, I am satisfied that the grievor’s motives were pure and altruistic.

For what then (apart from the frequently questionable display he put on during his evidence) is the grievor to be legitimately criticized or chastised?

The Campden file was a longstanding highly contentious file. I do not entirely accept Mr. Nieweglowski’s evidence suggesting the matter was just as contentious or controversial in March 2002, well after the construction was complete and the new system was in operation, as it had been during earlier phases of the project. It remained, however, a matter with high visibility within the community. The grievor had not done any significant work on this file for some years. And although not specifically or explicitly prohibited from doing any follow up or other marginal residual work on the Campden file, the grievor had, through his two most recent supervisors, been explicitly assigned to certain projects and taken off others. He was thus aware that there was some concern on the employer’s part about the breadth of his assignments. In that context, the grievor knew, or ought to have, that some specific communication with his supervisor (either to seek authorization or, at a bare minimum, to keep management explicitly advised of his activity) would have been in order. It was this that he failed to do – an omission for which he can be legitimately criticized.

Is discharge warranted?

In the ordinary course, it is difficult to conceive of the grievor’s particular transgression as attracting anything more than the most marginal form of discipline. The instant case, however, arises in a more specific context. First, the employer asserts that, given the grievor’s disciplinary record, this transgression, however it might otherwise be treated in its own right, constitutes a culminating incident warranting the grievor’s discharge.

Having considered the submissions of the parties, I am not persuaded that the grievor, by virtue of his prior disciplinary record, was poised so precariously on the edge of termination that a transgression as marginal as the instant one would be sufficient to propel him over the edge.

That might have been the case had the grievor’s most recent prior discipline been 10-day and 15-day suspensions imposed virtually simultaneously. Such is not the case before me.

And it might even have been a more likely result had the instant transgression occurred more proximate in time to those 2 suspensions. Such is not the case before me.

The grievor’s disciplinary record has already been canvassed and set out earlier in this award. The most recent discipline consists of a 3-day suspension and a written warning in respect of conduct which occurred well over two years prior to the grievor’s discharge and a one-day suspension for conduct which occurred some 22 months prior to his discharge. In other words, while the grievor was not able to benefit from the 3 year sunset clause on discipline found in Article 17.3.2 of the collective agreement, the fact remains that, but for the events giving rise to the discharge, there is simply nothing whatsoever on the grievor’s file to suggest that there were any difficulties or any conduct warranting discipline for a period approaching two years. Undoubtedly there is a greater legitimacy to seeking to elevate a relatively minor event to the level of culminating incident when it occurs hot on the heels of prior significant discipline rather than two years later. That is not to say, however, that in a proper application of progressive discipline, a minor infraction ought not to attract a more severe penalty than it might otherwise warrant standing alone.

However, in assessing whether discharge is the appropriate penalty in this case, I am also unable to ignore the actions of the collective bargaining parties in relation to the grievor’s prior discipline.

The ten- and fifteen-day suspensions initially imposed by the employer were, through a settlement arising out of the grievance procedure, reduced to a written warning and a 3-day suspension respectively. The parties are precluded from going behind the terms of the settlement or from attempting to litigate the facts giving rise to it. More specifically, the employer cannot be heard to argue that 10 and 15-day suspensions were the appropriate penalties for the misconduct in question just as the union can no longer assert that there was no just cause for any discipline in relation to the events. The settlement thus becomes an unimpeachable part of the grievor’s disciplinary record. The settlement was made on a without prejudice basis. That does not rob it of its binding effect in relation to the specific events that were part of the resolved grievances. It does mean that the settlement does not forever establish the specific penalties agreed to as the only ones appropriate for similar or identical conduct – it means that, despite this settlement, the parties are free to adopt any position they might choose to take in any future similar or substantially identical case.

But a consideration of these events highlights a point which is no doubt self-evident even without reference to the grievor’s specific disciplinary history. The point is, however, surely illuminated and brought into sharp relief by such a consideration.

The mere fact that 10 and 15-day suspensions were reduced to a written warning and a 3-day suspension provides a graphic indication of the employer’s awareness of the fact that there are, in the arsenal of progressive discipline, weapons available which are greater than written warnings and 3-day suspensions but less severe than discharge.

I see no reason why the dictates of progressive discipline (particularly when I consider the nature of the offence and the reasonably lengthy period free of discipline) either require or warrant that the employer vault over the intermediate weapons directly to discharge.

In all of the circumstances of the case, I am satisfied that discharge is too severe a penalty.

Should the remedy exclude reinstatement?

The employer has argued that, even if, as I have found, discharge is too severe a penalty in the circumstances, the grievor ought not to be reinstated in his employment. Rather, some other remedy ought to be fashioned.

The parties filed numerous authorities in respect of their competing positions on this issue. There was no real legal dispute between them on this issue – but significant differences as to how fairly well established legal principles ought to be applied in this case. In other words, it was agreed that this Board has the authority to fashion a remedy which precludes reinstatement. The issue is whether the present case warrants that exceptional approach. And there is no doubt that arbitrators have viewed this type of result as truly exceptional.

There are sound reasons for arbitrators’ general reticence to embrace this remedial approach absent truly exceptional circumstances. On its face, such a result is presumptively at odds with a fundamental bargain which underlies not only the instant collective agreement, but also the entire collective bargaining scheme on which it is constructed.

The essential bargain in any collective agreement, involves the abandonment, during the term of the agreement, of any collective strike action by the union in return for a process designed to insure the efficient resolution of any and all disputes involving the interpretation or administration of the collective agreement. And, of course, from the earliest days of collective bargaining as we know it, trade unions have focused on issues of job security, including the ubiquitous protection against discharge except for just cause. Similarly, the remedial arsenal of arbitrators selected to adjudicate such disputes has always included the presumptive reinstatement of employees found to have been discharged without just cause.

The protection against discharge without just cause and the attendant availability of reinstatement where just cause is not established are twin historic features of the collective bargaining regime. They ought not to be lightly discarded. Indeed, the availability of reinstatement is a feature which is largely unique to the arbitration process and one which clearly distinguishes that process from the more traditional judicial approach to wrongful dismissal. (And, of course, when a collective agreement is in place, there is no access to that traditional approach through civil litigation for wrongful dismissal.)

This Board has considered, confirmed and, on rare occasions, exercised its authority to deny reinstatement even where just cause for discharge has not been established. As the Board observed in Massa, GSB # 2033/97 et. al. (Abramsky) at page 69:

The case law is clear that this remedy is an exceptional arbitral response in a unionized workplace.” [U.S.W.A., Local112998 and Liquid Carbonic Inc. (1996), , 20 O.R. (3d) 468 (Ont. Div. Ct.)]. As I stated in [Re Rockcliffe Nursing Home and Service Employees International Union, Local 204 (1977), , 62 L.A.C. (4th) 316 (Abramsky)] at p. 342-343:

It is an exceptional remedy since it is fundamentally contrary to the concept of just cause which exists under a collective agreement. In contrast to the common law under which an employee may be dismissed for any legal reason with proper notice (or damages in lieu thereof) an employee protected by a just cause provision in a collective agreement normally has a right to reinstatement if it is found that his or her discharge was without just cause.

Only “[w]here the conclusion is inescapable that the viability of the employment relationship has been destroyed, reinstatement is not deemed to be in the best interests of the parties or the grievor, and damages in lieu of reinstatement may be awarded.” (p. 343)

The employer points to a number of factors in support of its position that the employment relationship in this case has been destroyed. They all hinge, however, on two primary submissions. The grievor’s conduct, up to and including the events which gave rise to his discharge, has demonstrated his continuing inability or refusal to follow instructions and there is no reason, in the face of that, to believe that the employment relationship is anything but irretrievably lost.

Secondly, it is submitted that the grievor, in his evidence before this Board, has succeeded in alienating both Mr. Nieweglowski and Mr. Vickers to the extent that his ability to work with either or both of these gentlemen has been terminally compromised.

Taking the second concern fist, I echo the sentiments of numerous arbitrators that any mere concern about possible friction in the workplace should not be sufficient to warrant denying reinstatement. As arbitrator MacDowell observed in Re Tenant Hotline and Peters and Gittens, (1983), , 10 L.A.C. (3d) 130 at page 144:

“Office politics” are always present to a greater or lesser extent in all work groups…These are the ordinary problems of human relations which exist in every work place. But I do not think the personal opinions or prejudices of fellow workers should amount to a veto over an employee’s right to reinstatement…When an employee has been unjustly discharged, I do not think his right to reinstatement should turn on his ability to solicit personal testimonials, or upon his employer’s ability to mobilize contrary personal opinions.

While I can easily appreciate both Mr. Nieweglowski and Mr. Vickers being taken aback and even offended by some of the grievor’s hyperbolic inclinations while testifying, I am satisfied they are both sufficiently mature and responsible to not allow such fleeting responses to impede their important work, even if that requires an ongoing association with the grievor. In this regard, my impression of Mr. Nieweglowski leads me to readily conclude that he possesses the capacity for grace which may be required to insure that the grievor is given every opportunity to succeed and to repair whatever damage may have been occasioned to workplace relationships. At the same time, however, I am equally confident that he is capable of the managerial vigilance which may also be required to insure that if future discipline is warranted in the grievor’s case, it is done so on the basis of a properly maintained disciplinary record.

There are, however, more significant reasons why I am not inclined to accept the employer’s invitation to deny reinstatement in this case

I have already indicated that, at least in the employer’s perception, the extent of the grievor’s transgressions appears much more significant than his disciplinary record would disclose. There may well be a legitimate basis for that perception. Indeed, I have also already indicated that based on his performance as a witness, I have little hesitation in concluding that the grievor might present significant difficulties to a manager.

I cannot, however, permit the employer’s perceptions of the grievor’s persistent performance difficulties – however legitimate they may ultimately prove to be – to eclipse or distort the borders of his disciplinary record. The invocation of the culminating incident doctrine is not an invitation for the employer to either (implicitly or explicitly) rely upon misconduct which is not part of the disciplinary record.

More importantly, and while that is a more generalised concern, it is one which becomes particularly acute in the context of the employer’s appeal for a remedy which excludes reinstatement where there is no just cause for discharge. The availability of such a remedy is not and ought not to be a proxy for progressive discipline. It does not and should not provide an opportunity for an employer to, effectively, sever the employment relationship and to deny an essential collective bargaining remedy in circumstances where the application of progressive discipline may have been less than complete. In the extreme case, an employer might not impose any discipline at all for a series of culpable events and, ultimately, seek to rely on all of them to assert reinstatement ought not be granted even absent just cause for discharge. I do not mean to suggest that the instant matter is that extreme case, but I have grave concerns that it is the employer’s less than fully vigilant commitment to principles of progressive discipline which, at least to some extent, drive the request in this case.

Finally, on this point, I return to the timing of events and, in a roundabout fashion, to the question of delay.

There are multiple contexts in which arbitrators are called upon to perform as prognosticators. In responding to requests that reinstatement be denied despite the absence of just cause for discharge, arbitrators have assessed the future potential of the employment relationship in order to conclude whether or not it has been fatally compromised. In the present case, the timing of events and, in particular, the delay in imposing the discharge have provided me with some tools to elevate that assessment further outside the bounds of pure speculation.

I have already commented on questions of the effect of the grievor’s testimony in these proceedings on his future dealings with Messrs. Nieweglowski and Vickers. But actual experience suggests that this employment relationship is not one whose viability has been entirely depleted. The grievor continued to work for some 7 months after the events which gave rise to his discharge. And there was simply nothing put before me to suggest that there were any difficulties in his performance during that particular period. Indeed, and as I have already observed, the grievor is an employee who, but for the March 2002 events – ones I have found to barely warrant discipline – has a record free of any conduct giving rise to discipline for a period approaching two years. This simply is not the kind of exceptional case warranting the denial of reinstatement.

Conclusion

The grievor’s conduct warrants some discipline short of discharge. This is not a case where it is appropriate to fashion a remedy which excludes reinstatement. The grievor’s offence is more aptly described as an error in judgement rather than deliberate insubordinate conduct. Having regard to the marginal seriousness of the offence, the state of the grievor’s disciplinary record and the less than helpful fashion in which he presented his evidence, I am satisfied that a 10-day suspension would be just and reasonable in the circumstances of this case.

The grievor is to be forthwith reinstated into his employment. A suspension of 10 days will replace the discharge. The grievor’s reinstatement shall be with full compensation (subject to the 10-day suspension and to any other applicable considerations) and without loss of seniority or benefits. I will remain seized in the event the parties encounter any difficulties in the implementation of my award.

To the extent herein set out, the grievance is allowed.

Dated at Toronto this 15^th day of August 2005