GSB# 2005-2180

UNION# OLB472/05

IN THE MATTER OF AN ARBITRATION

Under

THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT

Before

THE GRIEVANCE SETTLEMENT BOARD

BETWEEN

Ontario Liquor Boards Employees’ Union (Arthur)

Union

• and -

The Crown in Right of Ontario (Liquor Control Board of Ontario)

Employer

BEFORE

Barry Stephens

Vice-Chair

FOR THE UNION

Larry Steinberg Koskie Minsky LLP Barristers and Solicitors

FOR THE EMPLOYER

Gordon Fitzgerald Counsel Liquor Control Board of Ontario

HEARING

February 6, 2006.

Decision

INTRODUCTION

The grievor is an employee working in London, Ontario. His grievance concerns a four-day suspension. This decision deals with the union’s preliminary objection that the discipline is void ab initio, i.e. rendered invalid, as a result of the failure of the employer to provide the grievor with his rights to union representation and advance notice of a disciplinary meeting, as set out in Art. 26.3 of the collective agreement as follows:

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 parties submitted an agreed statement of facts for the purpose of this preliminary objection:

The Grievor received a 4-day suspension as a result of an altercation between himself and a co-worker (the complainant) in which the Grievor is alleged to have pushed the complainant into some metal racking. The alleged incident occurred at approximately 5 pm on June 22, 2005 and was immediately reported by the complainant to Brian Munroe, Afternoon Shift Supervisor. Mr. Munro immediately obtained written statements from the complainant and two witnesses, Mike Wilson and Ted Proctor. The complainant wanted to pursue criminal charges against the Grievor and therefore, after Mr. Munroe had obtained the above-noted statements, the complainant called the police to the facility.

A Police office attended at the facility at approximately 6:30 pm. The officer first met with the complainant. Mr. Munroe was in the room during this meeting. After finishing with the complainant, the officer asked Mr. Munroe to summon the Grievor so that the officer could speak with him. Mr. Munroe did so and Mr. Munro also remained in the room while the office met with the Grievor. The Grievor was not notified in advance of the meeting or its purpose and there was not union representative at the meeting. He was also not advised that he had a right to union representation.

Rob Cote, the General Manager of the facility, made the decision to impose the 4-day suspension on the Grievor. On June 25, 2005, Mr. Cote received a written statement from the complainant. In making his decision to suspend the Grievor for 4 days, Mr. Cote relied on that statement and the other three statements referred to above (i.e. those obtained immediately after the incident from the complainant, Mr. Wilson and Mr. Proctor.)

The union asserts that the meeting between the grievor and the police officer with Mr. Munroe present was covered by Art. 26.3. The employer responds that Art. 26.3 does not apply, given the fact that the meeting was part of a police investigation, and not related to discipline. In the alternative, the employer argues that, even if there was a breach, the appropriate remedy was not to invalidate the discipline, but that a declaration of breach would be sufficient.

The only significant fact that was not agreed by the parties was whether management representatives discussed or in any way relied upon the discussions that took place during the meeting with the police officer. Both Mr. Munroe and Mr. Cote testified that there was no discussion between them about what was said during the meeting, except that Mr. Munroe reported to Mr. Cote that the police were not pressing charges. The union suggested this was not credible. For the reasons set out below, it is my view that it is unnecessary for me to resolve this conflict.

UNION SUBMISSIONS

The union argues that Art. 26.3 has been consistently interpreted as providing substantive rights, and that the jurisprudence has given the clause a large and liberal interpretation. The cases all support the general proposition that in any face-to-face encounter between a representative of the employer and an employee regarding any matter which may result in discipline, the rights in Art. 26.3 are triggered, and the circumstances of the meeting in question meet those requirements. Union counsel emphasized that none of the cases turn on the union demonstrating actual prejudice to the employee, but that the mere potential that an employee might be placed in a position of making a statement against his own interest was sufficient to trigger the protection. As a result the union submitted that the discipline should be rendered void ab initio.

The union relied on the following authorities: OLBEU (Pedneault) and LCBO, (2000), GSB No. 1568/98 (Briggs); OLBEU (Franssen) and LCBO (1997), GSB No. 1636/96 (Mikus); OLBEU (Xanthopoulos) and LCBO (2003), GSB No. 1372/01 (Abramsky); OLBEU (Simpson) and LCBO (2002), GSB No. 1469/01 (Dissanayake); ATU (Blake) and Toronto Area Transit Operating Authority(1988), GSB No. 1276/87 (Shime); and AMAPCEO (Shiv Sud) and Ministry of Environment (2001), GSB No. 0888/00 (Abramsky).

EMPLOYER SUBMISSIONS

The employer argues that the evidence discloses that the meeting was initiated by the police, not by the employer, and that Mr. Munroe did not participate in the meeting in any meaningful way. He did not take any notes, nor did he ask any questions. He testified that he remained at the meeting at the request of the officer. It was clear that the police investigation and the LCBO investigation were two different matters, and it stands to reason that Mr. Munroe would not be interested in what happened during the meeting with the investigating officer. The same can be said for Mr. Cote, who was not aware of anything that happened at the meeting, aside from the fact that criminal charges would not be laid, and he made his decision based solely on the written statements provided by the employees. The employer summarized its position by stating that a meeting initiated and run by a third party does not attract the protection of Art. 26.3, and that this conclusion is not altered by the fact that an employer representative happens to be present as a non-active bystander during the meeting.

In the alternative, the employer argued that, if Art. 26.3 did apply to the meeting, given that the meeting played no role in the discipline, it can be “carved out” of the sequence of events. In other words, given that there is no “nexus” between the meeting and the discipline, and there has been no prejudice to the grievor, the breach is a “mere technicality”. There is nothing in the collective agreement that requires the discipline to be rendered void ab initio, and a declaration of breach would be a more appropriate remedy. The employer argued that the remedy should be weighed against the importance of addressing the merits of the case, which involves the serious issue of violence in the workplace, and submitted a number of authorities which stand for the proposition that arbitrators should not automatically invalidate discipline in these circumstances. The employer addressed the GSB jurisprudence relied upon by the union, and argued that the cases do not support an automatic response of invalidating the discipline. Rather, counsel submitted that the cases all require that there must be a clear relationship between the impugned meeting and the discipline imposed, what is referred to as a “seamless connection” in one case, before the discipline is rendered void ab initio.

The employer relied on the following authorities: Re Miracle Food Mart (1985), 1985 CanLII 5367 (ON LA), 19 L.A.C. (3d) 65 (Brunner); R. v. Collins, 1987 CanLII 84 (SCC), [1987] 1 S.C.R. 265; Re Ottawa Board of Education (1988), 1988 CanLII 9304 (ON LA), 2 L.A.C. (4th) 27 (Bendel); UFCW V. Canada Safeway, 1989 ABCA 56, [1989] A.J. No. 142 (Alta. C.A.); Re Procor (1991), 1991 CanLII 13408 (ON LA), 19 L.A.C. (4th) 145 (Devlin); Re Sunnybrook Hospital (1993), 1993 CanLII 16747 (ON LA), 36 L.A.C. (4th) 129 (Langille); White v. Canada Safeway Ltd., [1994] A.J. No. 725 (Alta. C.A.); Purolator Courier v. PSAC, 1998 CanLII 1283 (BC SC), [1998] B.C.J. No. 336 (B.C.S.C.); Canada Safeway v. R.W.D.S.U. (2000), 2000 SKCA 119, 196 D.L.R. (4th) 518 (Sask. C.A.); OLBEU (Bell) and LCBO 2002, GSB No. 683/01 (Dissanayake).

DECISION

After careful consideration of the facts and the submissions of the parties, it is my view that the grievor should have been afforded the protections under Art. 26.3 and, as a result, the discipline is void ab initio.

The evidence is clear that the grievor was not provided with any advance notice of the purpose of the meeting or offered the option of attending with a union representative. Thus, the only issues before me are, was the meeting covered by Art. 26.3 and, if so, should the failure to provide the Art. 26.3 protections lead to a determination that the discipline is rendered void ab initio.

I am not persuaded that it makes any difference if the meeting was initiated or controlled by a third party, as asserted by the employer. It is clear from the prior GSB decisions regarding Art. 26.3 that it is not necessary for the grievor to actually incur prejudice as a result of a meeting. Both in Franssen and Simpson, the vice-chairs held that it was the intention of the language to ensure that an employee is not put in a vulnerable position where there is even the potential that inculpatory statements or other statements against interest may be elicited or volunteered.

In the circumstances of this case, Mr. Munroe was present throughout the meeting at which a matter was being discussed that could, and eventually did, lead to discipline for the grievor. Given his presence at the meeting, Mr. Munroe was in a position to gather whatever information was available from the statements being made by the grievor. Whether he actually obtained any admissions, denials or confirmations of information is not at issue. There was a potential that such information could have come from the meeting, and that is enough. There is little question that the grievor was, by the very presence of a management representative at the meeting, in a vulnerable position. Indeed, the circumstances he was in were more ‘vulnerable’ than those faced by the grievors in Franssen and Simpson, where employees received hand-delivered NOID’s and no discussion took place. Mr. Arthur was exposed to the very harm the language of Art. 26.3 is intended to prevent, and once the potential for that harm is proven, I fail to see the significance of who requested or conducted the meeting.

The employer argued that the union must prove that there was a “seamless connection”, as it was described in Lahay, or that the meeting and the subsequent discipline must be “inextricably associated”, as stated in Pedneault, in order for Art. 26.3 to apply. I have given careful consideration to the various quotes relied upon by the employer in this regard, and in my view it would not be appropriate to read too much into them or to take them out of context. The quotes cited all appear to describe the specific circumstances of those cases, and/or respond to specific submissions made by the employer. I do not think I should infer that the comments mean that, in order for a meeting to be protected, it must form part of the formal investigation or disciplinary procedure conducted by the employer. The facts of this case demonstrate how easy it would be to circumvent the protections of Art. 26.3 if one were to reach such a conclusion. In my view, the language used by the parties is broad enough to capture the meeting in question. The meeting was directly related to the matter at hand, i.e. the altercation between the grievor and a fellow employee, and was attended by a management representative. In my view, that is sufficient to place it within the ambit of the protection of Art. 26.3.

As a result, I conclude that the meeting between the police officer, Mr. Munroe, and the grievor, was one that attracted the protection of Art. 26.3, and I find that the employer failed to extend the protections of that provision to the grievor, by failing to advise him in advance about the purpose of the meeting, and about his right to have a union representative attend with him.

Turning to the employer’s alternative argument, I am not persuaded that a declaration is a sufficient remedy. Prior decisions have been clear that Art. 26.3 is a substantive right. I cannot conclude that the breach in this case was a “mere technicality”, as suggested by the employer. The precedents are clear that the appropriate remedy for a breach of Art. 26.3 is a declaration that the discipline is void ab initio. The cases relied upon by the employer reflect a logical and thoughtful approach to this issue. However, even outside the GSB, that approach has not found favour with a majority of arbitrators. More importantly, as a Vice-Chair of the GSB, I am bound to follow the precedents of the Board, and those precedents are consistent with respect to the remedy for a breach of Art. 26.3.

As a result, the four-day suspension imposed on Mr. Arthur for the incident on June 22, 2005 is void ab initio. I remain seized to deal with any issues related to the implementation of this award.

Dated at Toronto, this 30th day of March, 2006.