GSB#2007-1570, 2007-1573

UNION#2007-5107-0010, 2007-5107-0020

IN THE MATTER OF AN ARBITRATION

Under

THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT

Before

THE GRIEVANCE SETTLEMENT BOARD

BETWEEN

Ontario Public Service Employees Union (Gandhi)

Union

• and -

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

Employer

BEFORE

Randi H. Abramsky

Vice-Chair

FOR THE UNION

Craig Flood Koskie Minsky Barristers and Solicitors

FOR THE EMPLOYER

Jodi S. Gallagher Heenan Blaikie LLP Counsel

HEARING

June 9, July 18, October 24, November 10, November 21, November 24, 2008.

Decision

1The Union raised a preliminary objection that the termination of the grievor, Harish (“Harry”) Gandhi, is void ab initio on the basis that the Employer violated Article 26.3 of the collective agreement, a union representation clause in the collective agreement. On November 28, 2008, I issued an expedited decision on this preliminary matter. I ruled that under the specific facts and circumstances of this case, the Employer did violate Article 26.3 when it met with the grievor on May 30, 2007, but that the termination was not void ab initio because it was not based entirely on the events discussed at that meeting. Instead, because of the violation, the Employer is precluded from relying on the alleged misconduct that was discussed at the meeting. This Decision more fully explains my reasoning.

Facts

2The parties submitted an agreed statement of fact and the Employer also led viva voce evidence. The Agreed Facts are as follows:

1. Mr. Harish Gandhi was an employee of the Employer employed in the capacity of a Casual Customer Service Representative at the Employer’s retail stores.

2. On May 30, 2007, Mr. Gandhi was scheduled to work in store #385, which is an A store.

3. Ms. Debbie Dotzko is a permanent full time Customer Service Representative (“CSR”) and a member of the bargaining unit. On May 30, 2007 Ms. Dotzko was the shift leader during the afternoon shift at store #385 for which she was paid a $10.00 premium pursuant to Article 6.12(a) of the Collective Agreement. While a shift leader, Ms. Dotzko continued to be a bargaining unit employee, was paid her CSR rate under the Collective Agreement and had union dues deducted from her pay. Shift leaders have the authority to assign work to bargaining unit employees and to require them to perform duties as assigned. Shift leader is not a defined term within the Collective Agreement. Ms. Dotzko had no authority to discipline employees.

4. On May 30, 2007, at approximately 8:30 p.m., Ms. Dotzko was approached in her capacity as shift leader by Shauna Brown, a fixed term employee of the Employer. Ms. Brown advised that she did not want to work with Mr. Gandhi anymore and wanted to leave the store that evening. While speaking with Ms. Dotzko, Ms. Brown was upset and was crying. She provided some details to Ms. Dotzko about comments Mr. Gandhi had made towards her that she felt were inappropriate and conduct that made her feel uncomfortable, such as Mr. Gandhi following her around the store and waiting for her outside of the washroom.

5. On May 31, 2007, Ms. Romanko and Ms. Dotzko spoke to Ms. Brown regarding Mr. Gandhi. Ms. Romanko wanted to get information from Ms. Brown about her concerns about Mr. Gandhi Ms. Dotzko was involved in this meeting because she was involved on May 30.

6. During this conversation on May 31, Ms. Brown confirmed the conversation that she had with Ms. Dotzko the night before and before Mr. Gandhi entered the office, and Ms. Brown described additional events. Ms. Romanko told Ms. Brown that she (Ms. Romanko) needed to bring this information to the attention of John Wilkinson, District Manager, because Ms. Romanko did not tolerate harassment and intimidation in the workplace. Ms. Romanko did not have authority to discipline employees.

7. Ms. Romanko then telephoned Mr. Wilkinson and Ms. Dotzko (but not Ms. Brown) present in the office and advised him of the situation with Mr. Gandhi. During her conversation, Ms. Romanko did not tell Mr. Wilkinson about the discussion Ms. Dotzko had had on May 30 with Mr. Gandhi (and Ms. Brown) in the store office. It was agreed that written statements would be prepared and forwarded to Mr. Wilkinson.

8. On or about 4:55 p.m. and on his own initiative, Mr. Gandhi confronted Ms. Romanko in warehouse in Store #385 regarding the incident of the previous night, May 30, 2007, (i.e., the allegations by Ms. Brown and Mr. Gandhi’s discussion with Ms. Dotzko and Ms. Brown). Unsolicited by Ms. Romanko, Mr. Gandhi provided a number of comments about Ms. Brown’s allegations. Ms. Romanko made no response other than to say that she had not been there the previous night.

9. Ms. Romanko requested that Ms. Dotzko prepare a written statement. Ms. Dotzko prepared a statement without the assistance or involvement of anyone else.

10. Ms. Brown also provided a written statement to District Manager Wilkinson.

11. Ms. Romanko prepared a written statement, as did Susan Budnick, a CSR working in sore #385 who had witnessed inappropriate conduct by Mr. Gandhi towards Ms. Brown.

12. The written statements prepared by Ms. Dotzko, Ms. Romanko, Ms. Budnick and Ms. Brown were provided to Mr. Wilkinson under fax cover dated June 1, 2007. (see Tab 1).

13. On or about June 5, 2007, District Manager John Wilkinson, caused a “Notice of Intent to Discipline” to be sent to Mr. Gandhi as a result of the allegations made by Ms. Brown initially to Ms. Dotzko and requesting that he provide a written statement. The letter also advised Mr. Gandhi that the Employer would be conducting an investigation of Ms. Brown’s allegations and would be meeting separately with those involved.

14. The documents in the possession of Mr. Wilkinson at the time of the writing of the June 5, 2007 NOID included the written statements provided by amongst others, Ms. Dotzko and Ms. Romanko.

15. On or about June 28, 2007, Heather Cameron, Acting Manager of Di strict 1, interviewed Ms. Dotzko, Ms. Brown and Ms. Budnick in the office at store #385 as part of the Employer’s investigation of Ms. Brown’s allegations.

16. In her meeting with Ms. Dotzko, Ms. Cameron asked what had happened on May 30, 2007. Ms. Dotzko, from memory and without her written statement, told Ms. Cameron what had happened on May 30, 2007.

17. Ms. Cameron prepared a written statement regarding her meetings wit each of Ms. Dotzko, Ms. Brown and Ms. Budnick, (see Tab 3) which was provided to Mr. Wilkinson.

18. In response to Mr. Wilkinson June 5, 2007 NOID, Mr. Gandhi provided a June 8, 2007 written response in which he stated that “I look forward to you arranging a meeting to further discuss the matter being investigated, with my Union Representative present”. (See Tab 4).

19. By letters dated June 20 and June 26, 2007 (attached at Tab 5a and 5b) the Employer advised Mr. Gandhi that a pre-disciplinary meeting with a Union representative present would be held on July 4, 2007.

20. Mr. Gandhi attended the July 4, 2007 meeting along with a Union representative. During this meeting, the Employer asked Mr. Gandhi questions about Ms. Brown’s allegations, as well as about other alleged misconduct that had taken place during June 2007. Mr. Wilkinson attended this meeting and the notes he took are attached at Tab 6.

21. Mr. Gandhi was dismissed by letter dated July 24, 2007. A copy of the Employer’s discharge letter is attached at Tab 7.

22. In April 2008, in response to a request for particulars and relevant documents from the LCBO, counsel for the LCBO advised on a without prejudice basis that (see Tab 8):

“in or about the end of May, 2007, some of the employees from store #385 contacted their District Manager, John Wilkinson, as a result of a young female employee (Shauna Brown) complaining about being harassed by the grievor. Mr. Wilkinson received written statements from the employees setting out the allegations. The Grievor was issued a NOID advising about the complain of harassment by Ms. Brown and some details of those allegations.”

3The Employer also called three witnesses: Debbie Dotzko, Shauna Brown and District Manager John Wilkinson.

4Ms. Dotzko testified that she was shift leader, or “acting manager,” on the evening of May 30, 2007. She reviewed her written statement and testified that she was in the office when Shauna Brown, a fixed term Customer Service Representative, asked to talk to her. She stated that Ms. Brown sat down and started to cry, and she asked what was wrong. Ms. Brown then said that the grievor “was making inappropriate comments to her that were making her upset and feeling uncomfortable.” Ms. Dotzko asked what type of comments, and Ms. Brown replied that he was always commenting on how beautiful she was and would follow her around the store. She also mentioned a time when he waited for her outside of the women’s washroom. Ms. Dotzko testified that Ms. Brown was extremely upset and crying, which was unusual behaviour for her. She did not ask for any further details or question Ms. Brown further about it.

5While Ms. Brown was still in the office, Ms. Dotzko telephoned Assistant Manager Irena Romanko. The Store Manager was on vacation at the time, and Ms. Dotzko had not experienced this type of situation before. She explained the situation to Ms. Romanko and Ms. Romanko advised her to “get both into the office and talk to them.” She also suggested that she bring in another employee, CSR Rose Micallef, as a witness/observer. She did so, and then called Mr. Gandhi into the office.

6Ms. Dotzko testified that she “told him I’d like to speak to him.” It is undisputed that she did not say what she wanted to speak to him about or that he could have union representation. Although she has no authority as shift leader to discipline employees, she does expect employees to follow her direction while acting as shift leader. If an employee did not, she would report that to her manager.

7Mr. Gandhi came into the room. Also present were Ms. Dotzko, Rose Micallef, and Shauna Brown. Ms. Dotzko stated that Mr. Gandhi sat down and she told him that Shauna had just told her that he had been making inappropriate comments to her, upsetting her and making her feel uncomfortable. Mr. Gandhi denied it, saying that he “didn’t do anything and that all he wanted was for her to come to cash.” He stated that Ms. Brown was “like a daughter” to him. Shauna then asked him, “why would I like about this?” Ms. Dotzko then told Mr. Gandhi, “if you’ve been saying these things, it has to stop” and if it did not, “there would be disciplinary action.” She then asked Mr. Gandhi if he understood what she was saying, and he replied “yes.”

8Ms. Dotzko’s written statement, which was prepared at the Assistant Manager’s request on May 31, 2007, is substantially similar to her testimony. The written statement says that she “told him what Shauna had said to me” and that he denied it. She then “explained that what ever it was that he had said to her it made her feel uncomfortable” and when he continued to deny saying anything, and Ms. Brown asked “why would I lie about this”, she “told Harry that he needed to stop and that if it continued there would be disciplinary action taken.”

9Ms. Brown and Mr. Gandhi were both directed to stay away from each other, and both finished their shifts that night. She stated that her goal was not to investigate Ms. Brown’s allegations, but to defuse the situation and calm things down. When asked, on examination-in-chief, what she meant by “defuse the situation”, she testified that she wanted to “get Harry to stop saying whatever was bothering her.” She wanted to deal with it then because Ms. Brown was so upset.

10On cross-examination, Ms. Dotzko acknowledged that she knew that Ms. Brown was alleging inappropriate conduct by Mr. Gandhi which, if true, could lead to discipline. She acknowledged that just as she reported to management his denials of Ms. Brown’s allegations, she would have reported it if he had admitted it as well.

11Ms. Brown testified about a number of things that Mr. Gandhi had said and did that upset her on the evening of May 30th and earlier, and which led her to report his conduct to Ms. Dotzko. Ms. Brown stated that she went to Ms. Dotzko because she was the shift leader that night. She did not recall all that she told her because she “was upset and crying.” She stated that she “told her enough so that she’d know why I was so upset.” She mentioned inappropriate comments, his staring at her and following her and that it made her feel uncomfortable. She confirmed that Ms. Dotzko then made a telephone call, and then called Rose Micallef into the office. She stated that Rose called Mr. Gandhi into the office and he came in. She could not recall exactly what Ms. Dotzko said to him, but that “she asked him if he made inappropriate comments” and he denied it. She confirmed that she asked him “why would I lie about this?” She then recalled Rose telling them to keep their distance from each other and they went back to work.

12The following afternoon, on May 31, 2007, Assistant Manager Romanko met with Ms. Dotzko at the start of her shift and they discussed what occurred the prior evening. They also met with Ms. Brown. According to a written statement by Ms. Romanko, Ms. Brown “confirmed her conversation with Debbie [Dotzko]” and Ms. Romanko advised her that she needed to inform the District Manager because she had “zero tolerance for harassment and intimidation inside and outside of the workplace.” Ms. Romanko then called District Manager Wilkinson to alert him to the situation. According to Mr. Wilkinson, she advised him that there was an issue between two employees, Shauna Brown and Harry Gandhi, and that Shauna had complained about inappropriate comments by Mr. Gandhi and that she felt she was being harassed.

13Mr. Wilkinson asked Ms. Romanko to obtain written statements from Ms. Brown and anyone with knowledge of the situation. At this time, he did not know if the allegations were serious and would warrant further investigation, or less serious and warrant only a counseling.

14Ms. Romanko obtained written statements from Ms. Dotzko, Ms. Brown, and Susan Budnick, a co-worker, which she then forwarded to Mr. Wilkinson. In Ms. Brown’s written statement, she provided significantly more details about Mr. Gandhi’s actions than she did in her discussion with Ms. Dotzko on May 30th.

15Mr. Wilkinson testified that he did not discuss with Ms. Romanko the events of May 30th. The discussion in the office on May 30th, however, was included in Ms. Dotzko’s written statement. It was also mentioned in Ms. Romanko’s statement and Ms. Brown’s. Mr. Wilkinson read all of the statements and was concerned when he read Ms. Brown’s account which was corroborated, in part, by Susan Budnick’s statement.

16In regard to the meeting with Mr. Gandhi on May 30, Mr. Wilkinson stated that Ms. Dotzko, as “acting manager”, was confronted with an unusual situation – an upset employee complaining about another employee’s conduct – and that she was trying to deal with the situation as well as she could. In his view, she was trying to implement the LCBO’s “zero tolerance” policy training – that an employee who feels harassed should confront the person and tell them that their conduct is inappropriate and to stop. In his view, she was simply trying to get everyone through the shift.

17After reading Ms. Brown’s statement, Mr. Wilkinson felt that the alleged misconduct was serious and needed further investigation. In consultation with Human Resources, Mr. Gandhi was issued a Notice of Intended Discipline (NOID), dated June 5, 2007. It advises Mr. Gandhi that a complaint of harassment had been made by a co-worker concerning “your inappropriate conduct towards her.” It continues:

Specifically, Ms. Shauna Brown alleges that since May 2007 you have made inappropriate comments to her such as repeatedly telling her that she is beautiful, that she is very attractive and that she would be your second wife, that you inappropriately touched her with your fingertips on her back, blew kisses to her, and that you persistently follow/pursue her throughout the store.

The LCBO takes allegations of harassment and/or violations of the LCBO’s Workplace Intimidation and Violence Policy very seriously. If an employee is found to have engaged in harassment or inappropriate conduct against another employee, disciplinary action may be taken up to and including termination. …

18The letter advised Mr. Gandhi that the matter was being investigated and asked for a written statement within three days. It also instructs him not to discuss this matter with other staff, and that “any form of intimidation, harassment, interrogation or retaliation toward any employee, be it direct or indirect, inside or outside of the workplace with respect to this investigation will not be tolerated and may result in disciplinary action. …”

19Finally, the letter also mentions Article 26.3 of the collective agreement. It states:

I am addressing this matter with you in writing rather than in person to avoid an allegation that Article 26.3 of the Collective Agreement has been violated. Article 26.3 states:

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.

Therefore you are advised that you are not to contact me or another member of management to discuss this issue. Should you elect to do so, you will be deemed to have waived your right to union representation. …

20As part of the Employer’s investigation, the employees who had provided written statements were interviewed. During the interview with Ms. Dotzko, the meeting of May 30 was discussed.

21On June 20, 2007, Mr. Gandhi was advised by letter that there would be a pre-disciplinary meeting with the Employer, along with his union representative, to discuss the allegations set out in the June 5, 2007 NOID, on July 4, 2007.

22Mr. Wilkinson testified that the pre-disciplinary meeting is to provide the employee with a chance to tell his side of the story. Sometimes, that ends the matter. Sometimes, as in this case, it does not and discipline follows.

23Prior to the July 4 meeting, however, further misconduct by Mr. Gandhi allegedly took place and on June 26, he was issued a second NOID. It involved Mr. Gandhi’s “absence from your scheduled shifts at store #436 since June 21, 2007 and your alleged threats of violence against Mr. Lyttlton Persaud, Manager of Store $436 and Mr. Lee Budd-Bagnato, Union Representative.” In addition, it asserts that at 5:30 p.m. on June 21 “you were observed sitting in your car outside store #385 with your wife.” Store #365 was the store at which Ms. Brown worked, and 5:30 was the time her shift ended. The letter stated that these matters would also be discussed on July 4, 2007.

24During the pre-disciplinary meeting on July 4, the grievor mentioned the discussion that took place on May 30 and again denied making inappropriate comments to Ms. Brown, or engaging in any inappropriate conduct.

25On July 24, 2007, the grievor was discharge based on all of the allegations set out in the June 5 and June 26, 2007 NOIDS.

Analysis

1. Does Article 26.3 apply to the May 30, 2007 meeting?

26There is a substantial body of case law from the GSB interpreting Article 26.3 of the collective agreement, and that jurisprudence has broadly interpreted this provision. Article 26.3 is a union representation and notice provision. It states:

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.

27Article 26.3 has been interpreted to provide substantive rights to employees, specifically, the right to be made aware, in advance, of the purpose of the meeting and the right to have union representation at the meeting. It also entitles employees to have a union representative at the meeting, provided it does not result in undue delay. The failure of the Employer to comply with this provision renders the discipline imposed void ab initio. OBLEU (LaHay) and LCBO (1995), GSB No. 809/94(Gorsky, Vice- Chair); OBLEU (Franssen) and LCBO (1997), GSB No. 1636/96 (Mikus); OBLEU (Massa) and LCBO (1999), GSB No. 2033/97 et al. (Abramsky, Vice-Chair); OBLEU (Xanthopoulos) and LCBO (2002), GSB No. 1372/01(Abramsky, Vice-Chair); OBLEU (Simpson) and LCBO (2002), GSB No. 1496/01 (Dissanayake); OBLEU (Arthur) and LCBO (2006), GSB No. 2005-2180 (Stephens, Vice-Chair), application for judicial reviewed dismissed, The Crown in Right of Ontario (LCBO) and OBLEU and The Crown Employees Grievance Settlement Board (2007) CANLII 7995.

28There is no dispute that none of these rights were provided to the grievor in relation to the May 30, 2007 meeting. He was not told, in advance, about the purpose of the meeting or his right to union representation. What is in substantial dispute is whether Article 26.3 applies to that meeting.

29The Employer’s primary argument is that Article 26.3 does not apply because Ms. Dotzko is not a member of management. The Employer argues that Article 26.3 only pertains to meetings between management and employees and does not extend to meetings with bargaining unit shift leaders such as Ms. Dotzko. It relies on Re Maple Leaf Poultry and UFCW, Local 175 (Cunha Grievance) [1998] OLAA No. 62 (Barrett), that a collective agreement contains promises between management and the Union and the promise that the “Employer agrees that, when an interview is held with an eployee that results in a suspension or discharge, a plant steward will be present as a witness” applied only when management met with an employee. It did not apply to a meeting between the grievor and the Employer’s occupational health nurse.

30The Employer argues that the requirement that the meeting be with management is implicit, though not explicit. Further, it submits that in all of the GSB jurisprudence interpreting Article 26.3, the meetings between management and an employee. The Employer asserts that to trigger Article 26.3, there must be meeting with management, not a member of the bargaining unit.

31The Employer further argues that the $10.00 per shift premium paid to employees who serve as shift leader does not change them into management. They are provided limited authority to oversee store operations and direct employees, but they have no authority to investigate a matter or to discipline employees. In this regard, the Employer argues that a ruling that includes a meeting between a shift leader and an employee within the ambit of Article 26.3 would make managing the stores far more difficult and does not further the purpose of the clause.

32The Union submits that all of the elements set out in Article 26.3 must be met before it applies, including that there be a “meeting to discuss a matter that may lead to discipline.” Therefore, it asserts, that not all encounters between a shift leader and an employee will fall under Article 26.3. Further, it argues that in light of the operations of the LCBO, which has many small stores, a ruling that excludes meetings between a shift leader and an employee would allow the employer easily to evade the protections afforded by Article 26.3. It points out that had the grievor, in this case, made inculpatory statements on May 30, those statements could have and would have been used by the Employer. It notes that the content of the May 30th meeting was reported by Ms. Dotzko in her written statement and it led to the Employer’s formal investigation.

33The actual wording of Article 26.3 does not indicate that the meeting must be with a supervisor or member of management, as in some other collective agreements. See e.g., Re City of Toronto and CUPE, Local 79 (2004), 2004 CanLII 94687 (ON LA), 131 L.A.C. (4th) 229 Petryshen). I agree, however, that it is implicit that the meeting must be between a representative of management and the employee for Article 26.3 to apply. It does not have to be, however, a member of management.

34In OPSEU (Bell) and LCBO (2002), GSB No. 631/01 (Dissanayake, Vice-Chair), for example, the meeting in question was called by a “C” store manager who was a full-time CSR in the bargaining unit. Yet clearly, when he called the meeting to discuss the probationary employee’s work performance he was representing management.

35In OBLEU (Arthur), supra, the agreed facts indicated that the “Afternoon Shift Supervisor” was present at a meeting that the police were conducting with the grievor, and that was sufficient to trigger Article 26.3 because he was a “representative of management.” His position is not entirely clear in the description, but he appears to be a supervisor at the London warehouse, and such supervisors are in the bargaining unit.

36Consequently, the case law, in my view, does not support the argument that the meeting must be between a member of management and an employee to trigger Article 26.3. A meeting between a “representative of management” and an employee has been deemed sufficient.

37I would note, however, that in neither the Bell case nor the Arthur case was the status of the person calling the meeting raised as an issue, as it has been here. Consequently, this case raises an issue of first impression – specifically whether a meeting between a shift leader and an employee can trigger Article 26.3. It is a very important issue.

38The Employer asserts that too broad an interpretation of Article 26.3 may cause operational difficulties for the LCBO. The LCBO runs a lot of small stores throughout the province and often uses shift leaders to run the stores. Further, a lot of smaller “C” and “D” store managers are in the bargaining unit. The Union counters that excluding shift leaders would substantially undermine the rights afforded by Article 26.3, because all the employer would need to do is have a shift leader ask employees questions which would then be reported to management, and be used against the employee.

39In my view, both parties have legitimate arguments and concerns, some of which may need to be addressed in collective bargaining. My role, however, is to interpret the collective agreement in light of the jurisprudence and apply that to the specific facts of the case. In my view, based on the case law, which has applied Article 26.3 to “representatives of management”, and the specific facts of this case, the meeting of May 30th falls within Article 26.3.

40Article 6.12(a) of the collective agreement provides for a premium of $10.00 per day “to an employee acting for the Store Manager in her/her absence…” This is the premium that Ms. Dotzko received for being Shift Leader or Acting Manager on May 30th. Consequently, under the collective agreement, when she called in Mr. Gandhi to discuss Ms. Brown’s allegations, she was acting for the store manager.. Clearly, Ms. Brown turned to her because she was the shift leader and Mr. Gandhi was obligated to come into the office at her direction. As shift leader, she had the authority to direct and assign employees and was in charge of the store. As shift leader, she did not “become management”, nor was she provided with the powers of management. But she did have limited authority on behalf of management while working as shift leader and, as such, was a “representative of management” on the evening of May 30th.

41Further, based on the facts, a number of things are clear in the evidence as they pertain to Article 26.3. First, the May 30, 2007 meeting was a “meeting for the purpose of discussing a matter which may result in disciplinary action being taken against the employee.” The nature of Ms. Brown’s allegations were very serious. She alleged that Mr. Gandhi made inappropriate comments and took actions that made her uncomfortable. Ms. Dotzko, as would anyone, recognized that if the allegations were true, they could result in discipline. She said as much to him in the meeting – if he did not stop, disciplinary action may occur.

42Further, the meeting was to discuss those allegations. Ms. Romanko, the Assistant Store Manager, advised Ms. Dotzko “to talk” to both Ms. Brown and Mr. Gandhi. When Mr. Gandhi entered the room, Ms. Dotzko confronted him with Ms. Brown’s assertions and was expecting a response from him. He provided one – he denied everything.

43Clearly, Ms. Dotzko was not conducting an investigation for the Employer. She had no authority to do so and was not doing so that evening. I accept that she was trying to deal with a distraught employee and determine what was going on and put a stop to it so work could continue. But the fact remains that she called Mr. Gandhi into the office specifically to discuss Ms. Brown’s allegations.

44As the Union argued, this was not an accidental or routine encounter. The only reason that Mr. Gandhi was called into the office that night was to discuss Ms. Brown’s allegations against him.

45The fact that Ms. Dotzko was also trying to defuse the situation by trying to get Mr. Gandhi to stop whatever he was saying to Ms. Brown which upset her does not negate the fact that this was a meeting to discuss alleged misconduct that could lead to discipline. The GSB has recognized that meetings can have multiple purposes.

46In LaHay, supra, the Board concluded that the meeting in question, attended by the Store Manager and the police, had a dual purpose – “one related to an employment offence that could lead to discipline, the other being related to the commission of a criminal offense.” (Decision at p. 49) Yet because the meeting “also became a meeting to discuss ‘a matter which may result in disciplinary action being taken’ against the Grievor”, it was subject to Article 26.3.

47In OBLEU (Pednault) and LCBO (2000), GSB No. 1568/98 (Briggs, Vice-Chair), the Board applied Article 26.3 to a situation where the meeting was not called to discuss the grievor’s alleged misconduct, but that of another employee. At the start of the meeting the grievor, who was the store manager, stated, “it’s all my fault,” which was followed by a discussion about what occurred. The Union argued that this meeting violated Article 26.3. The Employer argued that because the original purpose of the meeting was to discuss the other employee’s alleged misconduct, the grievor was not entitled to union representation under Article 26.3. The Board disagreed, ruling that “[t]he mere fact that the original intention of the meeting was to discuss Mr. Rawn [the other employee] does not constrain or eliminate the grievor’s rights.” (p. 21) The Board concluded as follows, at p. 22:

In this case the grievor attended at a meeting that was not optional and the very instant that the grievor said the matter was “all his fault”, the focus of the meeting and of Mr. Liddle’s attention shifted from Mr. Rawn to [the grievor]. This complete turning of events changed the meeting into one which triggered the rights found in article 26.3.

48In this case, although the purpose of the meeting on May 30th was to try to defuse the situation, by confronting Mr. Gandhi and hearing what Mr. Gandhi had to say, the meeting became “a meeting for the purpose of discussing a matter which may result in disciplinary action being taken against the employee.”

49The meeting that took place on May 30th is exactly the type of meeting that Article 26.3 protects. In Franssen, supra, the Board applied Article 26.3 to a meeting at which the grievor was handed NOIDS by the employer. The Board concluded, at pp. 8-9:

[W]hen Mr. Poulin elected to present the NOIDS personally to the grievor, he initiated a meeting to discuss matters that not only might lead to discipline but, in fact, were destined to result in discipline, given the nature of the allegations. In the circumstances, the grievor had no alternative but to meet with Mr. Poulin. … Even though Mr. Poulin did not make any inquiries of the grievor, the fact is he put the grievor in the vulnerable position making statements against interest without the advice and assistance of a Union representative. That the grievor did not make any inculpatory statements is irrelevant to the issue. The fact is he could have and, if he had, the Employer, no doubt, would have relied on those admissions in determining whether to discipline the grievor.

50Similarly, in OBLEU (Simpson), supra at p. 10, the Board held: “The intention of the article is to ensure that the grievor is not put in a vulnerable situation with the possibility that inculpatory statements may be elicited or volunteered, unless the grievor is afforded the rights stipulated in Article 26.3.”

51In OBLEU (Arthur), supra, the Board found that a supervisor’s presence at a meeting between the police and the grievor triggered Article 26.3. Although this meeting was initiated and controlled by the police, the supervisor’s presence placed the grievor in a vulnerable position. As the Board stated at p. 6:

Mr. Munroe [the afternoon shift supervisor] 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 vulnerable position. … [The grievor] was exposed to the very harm the language of Art. 26.3 is intended to prevent …

52The same is true here. When Mr. Gandhi was required to attend in the office and was confronted with Ms. Brown’s allegations, he was placed in the type of vulnerable situation contemplated by Art. 26.3. The fact that he did not make any self-incriminating statements is irrelevant.

53The Employer contends, however, that the nature of the discussion that took place on May 30th did not trigger Article 26.3. It asserts that when Ms. Brown appeared at the office and began to cry, there was a pressing and legitimate operational need to see if the matter could be resolved. It relies on the decision in OPSEU (Cahill) and LCBO (2006), GSB 2005-2409 (Dissanayake, Vice-Chair), to claim that the discussion was to address a pressing operational matter and was not part of an investigation. The Employer asserts that the Employer must be able to talk to employees about pressing matters without running afoul of Article 26.3.

54In Cahill, the grievor was scheduled to report to work at 9:00 a.m. and get the Cardinal store ready for opening at 10:00 a.m. He overslept and did not report for work until approximately 10:50 a.m., and the store was opened by another employee shortly before the grievor’s arrival. At around 1:00 p.m., the District Manager received a voice mail from an employee at another LCBO store, saying that her store was usually busy and that customers were telling her that the Cardinal store was closed, and that she had called the store but no one answered. The District Manager then called the Cardinal store “to find out what happened.” The grievor answered. The District Manager, in a 20 to 30 second call, asked three questions: “how are you?”, “what happened this morning?” and “is the store open now?”. In response to the second question, the grievor admitted that he had overslept. This conversation, the Union argued, was a meeting that triggered Article 26.3.

55The Board disagreed. It noted that, at the time, the District Manager had no idea as to why the store had not opened. There were many reasons why a store might not open, such as a power failure. Nor was it clear that the grievor would answer the phone since another employee had started at 1:00 p.m. Also critical was the fact that the District Manager did not pursue the matter of the grievor’s oversleeping. The Board stated at p. 9 that although Article 26.3 has been interpreted broadly, “it must also be interpreted sensibly so as not to preclude normal interaction between managers and employees. If not, managers would not be able to manage the operations.” The Board also noted that “the telephone call was not part of the an investigation into the grievor’s culpability.”

56In this case, the meeting of May 30th cannot be said to be part of the “normal interactions” between a shift leader and employee. This was a highly unusual situation, which led Ms. Dotzko to call for advice and to bring in a witness. There may have been a pressing concern – Ms. Brown’s emotional state – but the situation was very different from Cahill, supra. In that case, when the manager asked “what happened”, she did not know why the store had been closed or who would answer the phone. It was a legitimate and appropriate question; her only concern was ensuring that the store had opened.

57Here, serious allegations were made against the grievor and the grievor was called in to respond to those allegations. The goal may have been to defuse the situation, but it resulted in Mr. Gandhi’s being asked about the allegations. That was a discussion about a matter that could lead to discipline.

58Mr. Wilkinson suggested that the meeting was Ms. Dotzko’s attempt to implement the Employer’s zero tolerance policy, whereby an employee confronts another and advises them their conduct is inappropriate and must stop.

That may be, but that was not Ms. Dotzko’s evidence, nor the evidence of Ms. Brown. Ms. Dotzko stated that she was just trying to defuse the situation. Further, it was Ms. Dotzko, as shift leader, who confronted the grievor about Ms. Brown’s allegations, not Ms. Brown herself.

59It is true, as the Employer asserts, that Ms. Dotzko did not continue to question the grievor. She did not investigate the matter. But she did confront the grievor about Ms. Brown’s assertions and expected a response from him – which is the type of discussion that is protected by Article 26.3.

60It is also true that the meeting preceded the Employer’s formal investigation. Mr. Wilkinson did not learn of the allegations until May 31, and began the investigation by having Ms. Romanko ask for written statements. This sequence of events does not preclude the operation of Article 26.3.

61In OBLEU (Arthur), supra, the Board concluded that the discussion did not have to be part of the Employer’s investigation to fall within Article 26.3. In that case, the parties disputed whether management discussed or relied upon the discussions that took place with the police officer, and the Board decided that it was unnecessary to resolve that conflict. The Board also determined that the meeting need not form part of the formal investigation or disciplinary procedure to be protected. Rather, it was sufficient that “[t]he meeting was directly related to the matter at hand…and was attended by a management representative.”

62In this case, the May 30th meeting was the event that led to a formal disciplinary investigation by the Employer. Assistant Manager Romanko, after hearing about the meeting and meeting with Ms. Brown, decided to report what occurred to the District Manager. The content of the May 30th meeting was referred to in the written statements of Ms. Dotzko, Ms. Romanko and Ms. Brown, which the Employer relied upon in its investigation. Although Mr. Wilkinson testified that he did not rely on the May 30th meeting, it was clearly the start of the process and was considered by the Employer.

63Consequently, I conclude that the May 30th meeting was a meeting that Mr. Gandhi was required to attend “for the purpose of discussing a matter which may result in disciplinary action being taken against the employee…” under Article 26.3.

2. What is the impact of the violation of Article 26.3?

64Normally, because Article 26.3 is a substantive right, and when the Employer violates that provision, the discipline imposed is void ab initio. The facts in this case, however, compel a different result.

65In this case, the grievor’s discharge was not based solely on the allegations of Ms. Brown, as outlined in the June 5, 2007 NOID. There was subsequent alleged serious misconduct.

66On June 26, 2007, the grievor received a second NOID. This second NOID details further alleged misconduct, including the grievor’s “absence from your scheduled shifts at store #436 since June 21, 2007 and your alleged threats of violence against Mr. Lyttleton Persaud, Manager of Store #436 and Mr. Lee Budd-Bagnato, Union Representative.” It also includes an assertion that the grievor was seen sitting in his car outside store #385, the store that he had worked at with Ms. Brown, at the time her shift was ending. These are new incidents that were not part of the discussion on May 30th.

67The grievor’s discharge was based on the allegations set forth in the June 5th NOID and the June 26th NOID. In my view, the effect of the Employer’s breach of Article 26.3 under the facts of this case is to preclude it from relying on the matters discussed during the May 30th meeting, as set out in the June 5th NOID. In this regard, I do not believe that the issues can be narrowly parsed, separating out what Ms. Brown relayed to Ms. Dotzko on May 30th versus what she conveyed in her written statement the following day. The grievor was confronted with general allegations of inappropriate comments and inappropriate conduct. Therefore, in light of the Employer’s violation of Article 26.3, the allegations as set out in the June 5th NOID cannot be relied upon.

68The Union asserts that the violation must render the discharge void. Under the facts of this case, I cannot agree. The June 26th NOID refers to new matters. The grievor’s rights under Article 26.3 in regard to those matters were not violated. The Employer may properly assert that the remaining matters justify the grievor’s discharge.

69In my view, the decision in OBLEU (Franssen), supra, is directly on point. In that case, the grievor received thirteen NOIDs. He was personally given six NOIDs by the employer. He was then mailed two additional NOIDs. Finally, he was personally given another five NOIDs. The Board concluded that personally giving the grievor NOIDs violated Article 26.3, but that sending them by mail did not. Consequently, the two mailed NOIDs remained outstanding, while all of the other NOIDs were void ab initio.

70The same approach applies here. The discipline that flows from the meeting on May 30th, as set out in the June 5th NOID, is void ab initio. The allegations in the June 26th NOID remain outstanding.

71During opening statements, the Employer also raised a number of post-discharge actions by Mr. Gandhi to support his discharge. At this point, I make no ruling on the Employer’s use of that evidence, but I will allow such evidence to be led.

72Accordingly, for all of the reasons set forth above, I conclude that the Employer did violate Article 26.3 in relation to the May 30th meeting and, as a result, is precluded from relying on the allegations of misconduct as set out in the June 5, 2007 NOID. The grievor’s discharge, however, is not void ab initio.