GSB# 2006-0706, 2006-0878, 2006-2854, 2006-2855, 2006-2856

UNION# 2006-0520-0002, 2006-0520-0005, 2007-0520-0001, 2007-0520-0002, 2007-0520-0003

IN THE MATTER OF AN ARBITRATION

Under

THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT

Before

THE GRIEVANCE SETTLEMENT BOARD

BETWEEN

Ontario Public Service Employees Union (Bhandari)

Union

• and -

The Crown in Right of Ontario (Ministry of Education)

Employer

BEFORE

Felicity D. Briggs

Vice-Chair

FOR THE UNION

Gavin Leeb Barrister and Solicitor

FOR THE EMPLOYER

Neil Hartung Counsel Ministry of Government and Consumer Services

HEARING

January 18, 2008.

Decision

Mr. Bhandari has filed nine grievances including one which alleges that he was discharged without just cause. The other grievances filed include allegations of discrimination and harassment in the workplace as well as suspensions without just cause. Broadly speaking, it is the Employer’s position that the grievor was discharged mainly for two reasons. The first is because of a work assignment dispute and the second was as the result of a dispute arising from a WDHP investigation. Again, speaking generally it was the Union’s assertion that the grievor did not engage in much of the conduct alleged by the Employer and, in any event, the Employer’s imposition of discipline was excessive in the circumstances. The parties agreed to hold some of the filed grievances in abeyance, dealing first with the grievances regarding discipline and discharge.

There have been four decisions issued to date in this matter. The first ordered disclosure of certain documents. The second dealt with an agreement between the parties regarding certain limitations upon the grievor concerning the use of the documents issued by the Employer outlining the particulars. The third decision rejected the grievor’s request to vacate that agreement. The last decision was a denial of an Employer request for Union particulars in advance of putting its evidence before the Board regarding the grievor’s discharge.

At our most recent day of hearing a further issue arose. The Employer brought forward a motion to dismiss these grievances as the result of the grievor’s conduct since our hearing day. Facts and submissions were made in this regard and this decision deals only with this matter.

The parties advised me that Mr. Bhandari violated a previously issued Board order. The facts were not in dispute. On November 19, 2007 the grievor sent an e-mail to Mr. Ron McKerlie, the Corporate Chief of Information Technology Officer & Chief Strategist of Service Delivery, requesting that he investigate “hate crimes” against him. In this e-mail the grievor referred to a report that had been issued from the Ontario Provincial Police resulting from a complaint he had filed. Attached to this e-mail were two documents, one of which was a copy of the WDHP witness statement of Mr. Sana Ul Haque. The second attachment was a record introduced during the evidence of an Employer witness. The disclosing of these attachments is a breach of an order of this Board. This communication quickly came to the attention of Employer counsel who in turn informed the Union of the breach.

On December 9, 2007 the grievor sent an e-mail to Julian Fantino, the Commissioner of the Ontario Provincial Police. This correspondence was copied to dozens of people and organizations including Dalton McGuinty, the Globe and Mail, the Toronto Sun and various television stations. In the e-mail to Mr. Fantino the grievor stated that the OPP investigation into his complaint was not “fair”. He asked that a “secret inquiry commission to investigate this Hate Crime issue” be undertaken. He also set out some of the investigation results and history including, again, the two documents set out above.

After this communication the Employer arranged a conference call between the parties and this Board. During that discussion the Employer put the Union on notice of its view of the seriousness of these breaches and indicated that at the next day of hearing it would ask this Board to dismiss all Mr. Bhandari’s grievances.

The third communication, dated January 7, 2008 was a further e-mail from the grievor addressed to Mr. Fantino with many of the same people copied. However, this time various people from the Royal Canadian Mounted Police are also copied including those responsible for national security. The “Re” line of this e-mail stated, “Re – Pakistanis that might be members of a terrorist group – Bob Scott, Detective Sergeant, OPP – Professional Standards Bureau.” Mr. Bhandari again asked for a “secret inquiry commission” to investigate the matter. The attachments to this e-mail were the same as mentioned above plus the actual OPP Professional Standards Bureau Investigation Report of Mr. Scott, wherein it was found that none of Mr. Bhandari’s allegations were substantiated. In that document, under the heading “Background/History” the letter writing campaign was reviewed and it was stated that “the early letters suggested that Mr. Vinay Bhandari had been the subject of “harassment by Pakistanis that might be members of a terrorist group”. (emphasis not mine) The same attachments were included with the communication.

It was the Employer’s submission that, as stated in its opening statement, the grievor is ungovernable. Mr. Hartung, for the Employer reviewed the Board order in this matter which mandated that certain documents could not be re-produced or used for any purpose other than this hearing. It was suggested that Mr. Bhandari was terminated, in part, because he could not follow the Employer’s orders when he was an employee and he has now revealed that he is incapable of following the clearly mandated Board orders. This failure should cause this Board to dismiss all of his grievances that are not held in abeyance. In the alternative, this Board should consider these breaches as further evidence that there is an irrevocable severing of the employment relationship and order the parties to negotiate an amount of money in lieu of reinstatement while remaining seized.

Mr. Hartung contended that while the first two instances of a breach were significant, it is particularly problematic that the final breach took place after the conference call wherein the Employer put the Union on notice, in front of the Board, that it would bring this motion. The grievor must have known when he sent his e-mail of January 7, 2008, that he was flouting the Board’s orders and would be held accountable. Therefore, nothing short of a dismissal of his grievances is sufficient.

The Employer asked the Board to carefully consider the grievor’s final e-mail. There can be no doubt from that egregious communication, which he sent to the upper echelon of the RCMP, Mr. Bhandari specifically intended to cause harm. Therefore, he cannot be allowed to come before this Board and ask for a remedy to his grievances while flouting its orders. These actions reveal that the grievor is ungovernable and he cannot be remediated.

Mr. Hartung asserted that whether the Employer was justified in terminating the grievor’s employment is a moot point because even if it is found not to have had just cause for dismissal, there is now clear evidence that there is an irrevocable severing of the employment relationship. There can be no question that reinstatement would be an inappropriate arbitral response in this case.

The Employer referred to Re GSB #2006-2649 The Crown in Right of Ontario (Metro Convention Centre Corporation) and Labourers’ International Union of North America – Local 506 (Briggs) wherein it was stated, at page 8 that the relevant factors to consider in whether to award compensation in lieu of reinstatement are:

• The refusal of co-workers to work with the grievor

• Lack of trust between the grievor and the employer

• The inability or refusal of the grievor to accept responsibility for any wrongdoing.

• The demeanour and attitude of the grievor at the hearing

• Animosity on the part of the grievor toward management or coworkers

• The risk of a “poisoned” atmosphere in the workplace

The Employer reviewed each of the above indicia and the facts in this case and asserted that the grievor cannot be placed back into the workplace and this Board should so find.

Mr. Leeb, for the Union, did not take issue that the grievor’s conduct is an extremely serious matter and a regrettable development in this case. However, the remedy sought by the Employer is disproportionate to the offence and, simply put, incorrect. It was acknowledged that some consequence should flow but upholding the grievor’s termination because of even this serious a breach is the wrong arbitral response.

The Union further acknowledged that the Board is the master of its own proceedings and, as a legal matter, must have the “weaponry” to ensure that its orders are upheld. However, that power must be tempered with a review of facts at hand including whether the grievor was aware of the nature of the order and its scope as well as whether the grievor fully understood the consequences of a breach.

Mr. Leeb contended that when this Board considers its discretion there are four considerations to take into account. These are:

• There was no apparent penalty within the order itself for a violation or breach and therefore there are issues of natural justice that arise. To be clear, a dismissal of these grievances resulting only from a breach of a Board order would not satisfy the requirement of fundamental natural justice;

• The Board has a statutory mandate to arbitrate disputes;

• The precise nature of the dispute at hand. In this case we are dealing with a discharge matter and the Board should first determine whether there was just cause for termination before the grievor loses his opportunity for reinstatement; and

• Presence, if any, of prejudice to the Employer or to the Board. There is no prejudice even contended by the Employer in this matter. Further, while the Board might have some institutional interest in this matter, it cannot outweigh the prejudice that would befall the grievor if the Employer’s motion was granted.

The Union submitted that the Employer is attempting to fetter the Board’s remedial options in a preliminary motion and that is would not be appropriate to do so. The Board can order other remedies. The Union suggested the Board’s response might include a reduction in the amount of compensation order, if any, in the event there is an order to return the grievor to the workplace. Further, the Board could decide to accept these facts as post grievance evidence and attach whatever weight it elects to do so in its final deliberations. Finally, the Board could decide to issue an order which would be akin to a last chance agreement with the provision that in the event of any further violations of the Board’s orders, the grievances will be dismissed. Indeed, Mr. Leeb undertook on behalf of the grievor that he would abide by and comply with a last chance order.

In conclusion, the Union asked the Board to consider that all of the breaches were as the result of Mr. Bhandari attempting to pursue his complaints that he was mistreated by the OPP and a victim of hate crimes. He made a mistake and there is no evidence that he intended to violate the Board’s order.

In reply, the Employer contended that, contrary to the Union’s assertions, the grievor took extraordinary steps to violate the Board’s order. He had to go out of his way to made PDF copies of the offending documents. He cannot be said to be unaware of his actions. The grievor was fired, in part, for improperly distributing documents and these three violations of the Board’s orders are further evidence of that type of activity. The grievances should be dismissed.

DECISION

While it might be unnecessary to say, this Board, on any particular day, considers any breach of its orders as a matter of the utmost concern. Indeed, the integrity of Board orders is a cornerstone of the arbitral system that has evolved between these parties. It is fundamental to this statutorily mandated dispute resolution system.

In this circumstance, given that more than one order was issued regarding the restricted treatment of the documents at hand, the grievor’s repeated violations are made even more offensive.

I have given this matter much consideration. I understand the Employer’s significant distress resulting from this matter and I have much sympathy with its reaction. Indeed, it must be said that there is a certain attraction to the Employer’s request. It is worthy of note that the Union conceded that some form of penalty is appropriate in these circumstances. The issue for determination at this point is what penalty is appropriate.

In arriving at my decision I have taken into account this Board has not previously decided the issue of appropriate penalty as the result of violations of its orders. Further, none of my earlier decisions in this case regarding the treatment of documents set out a penalty for violations. While it might be said that the sanctity of the Board’s orders are simply known and understood by all, I cannot uphold the Employer’s motion based on such a supposition in these circumstances.

It cannot be forgotten and is particularly significant that this is a discharge case. Indeed, this decision might well have been different had the nature of this grievance been of less import. However, in these circumstances where the grievor’s ongoing employment relationship is at issue, I cannot as a preliminary matter, dismiss the grievances.

The Employer has argued from the outset of this litigation that the grievor is ungovernable and these violations are yet further examples. For that reason, it suggested this Board should either dismiss the grievances or declare that the employment relationship is irrevocably severed and order the parties to negotiate an amount of money in lieu of reinstatement. While that argument has some initial attraction, the unavoidable difficulty with that submission is that the Employer has yet to prove through its evidence, presented at hearing, that the grievor was terminated because he was ungovernable. In other words, I cannot find that these violations are another example of ungovernable behaviour because I have not yet heard the evidence regarding whether his behaviour rendered him ungovernable in the first instance.

All of that is not to say that these violations should not have consequences. Like the Employer, I am particularly disturbed by the e-mail of January 7, 2008. It is not necessary and perhaps not appropriate to set out the extent of those concerns in this decision. However, hopefully it is abundantly apparent that this Board is, to say the least, annoyed with the grievor’s disregard of clear orders. In any event, I order the following:

1. Any further breach of the Board’s order regarding the protection of certain documents will bring about a prompt dismissal of all grievances presently before the Board.

2. The evidence admitted our last day of hearing during the argument of this motion is, in total, accepted as post grievance evidence in this matter. The parties are invited to make any submissions in their final argument regarding what effect, if any, this evidence ought to have in the consideration of the outstanding grievances or with respect to any remedy that might be provided in the event the grievances succeed.

Our hearing will continue on the days previously scheduled.

Dated in Toronto this 25th day of March, 2008.