GSB#2016-0259

Union#G18-16-TS

IN THE MATTER OF AN ARBITRATION

Under

THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT

Before

THE GRIEVANCE SETTLEMENT BOARD

BETWEEN

Amalgamated Transit Union - Local 1587 (Jessett)

Union

• and -

The Crown in Right of Ontario (Metrolinx - GO Transit)

Employer

BEFORE

Gail Misra

Vice-Chair

FOR THE UNION

Amanda Hunter Hicks Morley Hamilton Stewart Storie LLP Counsel

FOR THE EMPLOYER

Dean Ardron Ursel Phillips Fellows Hopkinson LLP Counsel

HEARING

August 16, November 23, 2016

Decision

1On February 26, 2016 the Union grieved the termination of employment of Clayton Jessett (the “Grievor” or “Jessett”), a Transit Safety Officer, from Metrolinx (the “Employer”). The Union seeks, among other things, the Grievor’s reinstatement to employment with full compensation.

2At the outset of the hearing the Union made a preliminary motion that the dismissal should be found to be void ab initio as a result of the Employer, in reaching its decision to terminate Jessett’s employment, having relied on aspects of the Grievor’s disciplinary record that should have come off by virtue of the application of the sunset clause in the collective agreement.

3The Union called no evidence. The Employer called one witness, Steve Weir, in support of its position that it had not relied on stale discipline on the Grievor’s record.

4This decision addresses the preliminary motion.

BACKGROUND

5Steve Weir is currently the Manager of Transit Safety Operations. He has been with Go Transit/Metrolinx for about 16 years. During that time he has been a Transit Safety Officer, a Prosecutor, Senior Prosecutor, and Manager of Compliance and Prosecution, before taking on his current managerial role in 2011 or 2012. Weir oversees all the Metrolinx uniformed special constables, who provide a front line law enforcement function for Go Transit.

6Special constables, known at Metrolinx as Transit Safety Officers (TSO), are appointed by the Ontario Provincial Police, and have similar roles and responsibilities to those of a police officer. Although the Grievor reported to a supervisor, who had a reporting relationship to Weir, Weir himself knew Jessett and was familiar with his work record.

7On January 12, 2016, Weir was made aware of an incident that had occurred in Union Station in which there was concern about how a woman had been treated in the course of an arrest. He asked Randy Cowan, a supervisor who reports to Weir, to conduct an investigation. Later that same day Weir saw the video of the incident. In the video Weir observed a brief struggle between the Grievor and the woman in question, Ms. Craddock. The Grievor with then observed with Craddock when another TSO, Cindy Shigatoni, arrived at the scene. A third TSO, Leroy Persaud, also arrived. The three officers had Craddock up against a wall, with the Grievor in the middle. Jessett appeared to be trying to put handcuffs on Craddock and he then kneed her twice as she had her back to him facing the wall. Passersby appeared to be standing close by, and another officer appeared to be speaking to them.

8Weir was very disturbed by what he had seen as he observed that Craddock was an elderly woman, and he thought it appeared that Jessett had escalated the situation when two other TSOs were present. In his view, if Jessett felt he was not able to reason with Craddock, he could have asked the female TSO present to take over and let her try. Weir understood that Craddock had mental health issues, and he knows that the TSOs are trained to try to de-escalate situations. Having seen Jessett’s use of force on the video, Weir testified that he had essentially made up his mind at that time that the Grievor was not an officer who he wanted to keep on his security force.

9As noted earlier, Weir asked Staff Sergeant Randy Cowan, who had been a homicide investigator before joining Metrolinx, to conduct an investigation into the incident, and subsequently Jessett was put on a paid suspension pending the outcome of the investigation.

10Cowan’s investigation report regarding the incident at Union Station issued on January 22, 2016, and was made an exhibit in this proceeding. In his Executive Summary to the report Cowan noted:

The investigation would be incomplete if the history of the subject Officer JESSETT was not examined. Section 5 of this report contains the lengthy history of complaints regarding aggressive behaviour and questionable use of force. These complaints are not proven beyond a reasonable doubt however they do seem to possess a common thread of similarity and are numerous in frequency, none of the complainants are known to each other but all have the ring of similarity. These complaints have been brought to the attention of TSO JESSETT in the past and action was undertaken, however the discipline has since expired. JESSETT has been provided additional training in regards to these incidents by way of debrief with Doug ASHTON our use of force instructor.

Of particular concern is a recent April 2015 court decision where JESSETT was criticized by a Provincial Court Judge for his judgment in use of force and the Judge found him unreliable and not credible as a witness, this case is published (Sec. 6). The Justice Melvyn Green quotes:

“Whether a product of faulty memory or a tendentious and self-serving accounting, Jessett presents as an unreliable witness. His creditworthiness is profoundly compromised. Jessett, in my view, would not have neglected the opportunity to ascribe any aggressive conduct to the defendant.”

[emphasis in original]

The manner in which JESSETT has conducted himself seems to demonstrate a pattern of aggression and is not in keeping with the standard of customer care expected by Metrolinx. …

11The Court decision was included in the investigation report (R. v. Cowan, [2015] O.J. No. 2097). Cowan also included in his report a section titled “Summary of Complaints Regarding TSO Clayton Jessett”. This section outlined 16 customer complaints, seven of which apparently involved the use of force. The incidents included four in 2012 (August 30, September 26, November 26, and December 17, one of which was identified as involving the use of force); Seven in 2013 (January 23, April 8, May 23 (two incidents), June 2, June 18, and July 26, five of which were identified as involving the use of force); and five in 2014 (February 1, May 1, June 1, June 18, and July 16, one of which was identified as involving the use of force).

12The Grievor’s work location file contained a September 10, 2014 letter of counsel from Steve Weir regarding a pattern of negative customer complaints about Jessett. Weir stated in the letter that he had met with Jessett on August 12, 2014 to discuss the record of customer complaints about Jessett over the previous two years, which were noted as amounting to 21 incidents of negative customer concerns of aggressive, unprofessional conduct, or rudeness, or complaints of excessive use of force. Weir undertook to ensure that the Grievor received further training to address the concerns that had been raised. This letter of counsel is of significance to the Union’s argument.

13While it is unclear which customer complaints Weir had addressed with Jessett in August 2014, it seems more likely than not that the customer complaints up to that date would have been included. Thus, although Cowan listed 16 such complaints in his investigation report, in fact it appears that Weir had indicated that the Grievor had had 21 complaints made about him. It is noteworthy that there do not appear to have been any further customer complaints made about Jessett following the September 10, 2014 letter of counsel.

14By a letter dated February 25, 2016, Steve Weir, as the Manager of Transit Safety Operations, dismissed Clayton Jessett from employment for cause. Weir noted that the Grievor was a short service employee with less than five years service with Metrolinx. The letter indicated that the reason for the termination was the manner in which Jessett had responded to a disturbance call regarding a 70 year old woman. Relying on video footage, Weir noted in the termination letter that the woman had been walking away from the Grievor; Jessett had unsuccessfully attempted to grab the woman’s arm; he had then radioed for assistance; after two other Transit Safety Officers arrived, all three of them had pushed the woman into the wall with enough force to cause the temporary wall to visibly shake; the Grievor had placed a handcuff on the woman’s right arm, while another Officer had control of the woman’s left arm; with the woman surrounded, the Grievor had delivered two full knee strikes to the woman; and after gaining control of the situation, the woman had then been placed under arrest.

15The termination letter relied on the Grievor’s responses during the investigation into the incident. In that investigation, Weir recounted in the letter that the Grievor had stated that his actions had been appropriate and that he would do it again. He had apparently further stated that he had delivered the two knee strikes because he was becoming “tired” of dealing with the incident.

16Had Weir stopped his letter at this juncture, and terminated the Grievor’s employment on the basis of what he believed regarding the incident and the investigation, this would be a simple case of whether the Employer had just cause to terminate the Grievor’s employment. However, it is what Weir stated thereafter that the Union objects to, and maintains that he relied on stale discipline and information, which should have been removed from the Grievor’s file and therefore could not have been relied upon. Weir went on to state as follows in the letter:

You have been previously spoken to in relation to complaints of excessive use of force and provided additional training. You have also been spoken to about our concerns in relation to your aggressive, rude and unprofessional behaviour when dealing with customers. You have been provided with additional training for customer service.

Your actions and tendency to exercise aggressive force options has been a troubling pattern within your short employment as a Transit Safety Officer.

17The Union asserts that these paragraphs of the termination letter demonstrate that the Employer relied upon the Grievor’s complaints record, including the September 2014 letter of counsel, in reaching its decision to terminate his employment. It argues that the parties have negotiated strong and mandatory language in the collective agreement regarding what may be held on a bargaining unit employee’s file, and how long that material may remain there, and that the Employer violated those provisions of the collective agreement in this case.

18In an email dated January 13, 2016, from Jeff Ekubor, Supervisor, Transit Safety, to Nazia Rahim in Human Resources, Ekubor, speaking about Jessett, notes “the leadership team need time to discuss concerns regarding his use of discretion and previous history” (emphasis added). At that juncture that may not have been fatal as one can expect that those in management familiar with the Grievor would have been aware of his past history. As well, at that time, they may not have reviewed his Human Resources file to see what, if anything, was on file for Jessett. In any event, Weir had not seen this email until this proceeding, so he testified that it had not influenced his decision-making.

19In a January 15, 2016 email from Steve Weir to Mary Proc, the Metrolinx Vice President of Customer Service, regarding the Jessett incident, Weir noted “if this was an employee without any previous concerns while I would still have grave concerns my focus would likely be more to determine if rehabilitative efforts were warranted – as we have concerns with this employee previously – I worry we’ve past that point.” From this email it is apparent that Weir had in his mind the Grievor’s past history of customer-related incidents, and indicated that he was weighing that in the balance when determining what to do about the January 12, 2016 incident. However, at that time the investigation was still ongoing. According to Weir, his concern was that it appeared that in the incident Jessett had lost sight of the fact that he was dealing with an elderly woman with mental health problems. Weir himself had spoken to Jessett in the past about his judgment and taking action, and he knew that others had too, so that was what he was referring to in his email to Mary Proc.

20Steve Weir testified in his examination in chief that he had not relied on the Grievor’s previous record in reaching his decision to terminate Jessett’s employment. Weir testified that he had not looked at the Grievor’s work location file, and that while there had been reference to the various customer complaints in Cowan’s investigation report, he had not seen them at the time, and in any event, he was aware from the investigation report that the letter of counsel on the Grievor’s file had expired. As such, he had not considered the expired letter of counsel when making the decision to terminate the Grievor’s employment. What Weir knew from his management position was that Jessett had received lots of training on how to deal with difficult situations, and he considered whether Jessett could be retrained further.

21In cross-examination Weir admitted that his reference in the termination letter to Jessett having been spoken to previously in relation to complaints of excessive use of force, and regarding the Employer’s concerns about his aggressive, rude and unprofessional behaviour when dealing with customers, had in part been related to the customer complaints and the 2014 letter of counsel. Weir testified that these references were also related to other factors, including a July 2013 incident that had occurred at Exhibition Place, and about which the Employer had been concerned regarding Jessett’s exercise of judgment. However, Weir maintained that he made the difficult decision to terminate Jessett’s employment based on the January 2016 incident itself.

22In cross-examination Weir conceded that when he had indicated in his examination in chief that he had made the decision to terminate based on his “own knowledge of Clayton”, his “personal awareness of Jessett”, and his “personal knowledge”, what he meant was all the knowledge he had of the Grievor, which included the customer complaints, the July 2013 Exhibition Place incident, the July 2014 letter of counsel, along with his recollection of the multiple conversations he had had with Jessett to try to get the latter onto “a proper path”.

23Following Jessett’s dismissal, some of the TSOs from his team were upset and asked to speak to Weir about the situation. On February 29, 2016 Weir, Randy Cowan and Jeff Ekubor met informally with three TSOs, Greg Pearson, Cindy Shigatoni and Leroy Persaud, the latter two of whom had been with Jessett at the January incident. Pearson’s view was that Jessett’s knee strike action had been consistent with the training that TSOs receive and as such he felt that the result (Jessett’s dismissal) had not been appropriate. Weir told them that one could not lose sight of the fact that they had been dealing with a 70 year old woman with mental health concerns, and asked them how they would have felt if she had been their family member who was treated as Craddock had been treated. Pearson apparently admitted he would have been concerned if she had been his family member, but he felt that everyone should be entitled to make a mistake, and should get a second chance. In response to that comment Weir had asked Pearson rhetorically whether he had had any customer complaints in his career, and was told Pearson had had two. Weir asked Pearson whether he had had any police investigations regarding the excessive use of force, and Pearson responded that he had not had any. Weir’s sense was that the TSOs were concerned that they may face the same outcome as Jessett had they exercised their discretion in the same manner. Weir told them that each case is different, and that there were too many variables to be able to give one definitive answer. After the meeting Shigatoni indicated she had been comforted by the discussion and Pearson thanked Weir for meeting with them.

THE ARGUMENTS

24The core of the Union’s argument is that the Employer’s decision to discharge Jessett from its employ was in breach of the sunset provisions of the collective agreement, therefore the discharge should be voided, and the Grievor reinstated to employment with full compensation for all his losses.

25In particular, the Union argues that it had bargained a substantive right that limits the Employer’s ability to rely on expired discipline, but that in this instance Weir gave significant weight to events and documents that should have been removed from the Grievor’s file. According to the Union, it would be impossible to parse out how much one factor was relied upon over another factor, and that in light of Weir’s evidence, it is clear that he in part relied on the customer complaints and letter of counsel that had been on the Grievor’s record, but which should had been removed by virtue of the operation of the sunset provisions of the collective agreement.

26The Union argues that the sunset provisions give bargaining unit members substantive rights, and therefore must be enforced. If they are not, they are of little value to employees.

27In making its arguments the Union relied upon the following cases: Tri-Krete Ltd. v. Labourers’ International Union of North America, Local 506 (Holness Grievance), [2012] O.L.A.A. No. 302 (Trachuk); Spartech Colour – Stratford v. International Association of Machinists and Aerospace Workers (Markle Grievance), [2009] O.L.A.A. No. 497 (Rayner); Re Rexdale Mobile Truck Wash (1981) Inc. and Brewery, General and Professional Workers’ Union, [1995] O.L.A.A. No. 922 (L. MacLean); Canadian Union of United Brewery, Flour, Cereal, Soft Drink and Distillery Workers, Local 304 v. Molson’s Brewery (Ontario) Ltd., [1982] O.J. No. 1364 (Div. Ct.); Ontario Public Service Employees Union v. Ontario (Metrolinx – GO Transit)(Kay Grievance), [2014] O.G.S.B.A. No. 97 (Gray); and, AMAPCEO (Worku) and The Crown in Right of Ontario (Ministry of Finance), 2000 CanLII 20561 (ON GSB) (Dissanayake).

28The Employer argues that a letter of counsel is not discipline, but does not dispute that letters of counsel have been addressed specifically in the sunset provisions of the collective agreement. However, customer complaints (CITs) stay on record for 24 months. According to the Employer, even if a letter of counsel comes off the record, the CITs remain on for 24 months.

29With respect to the July 27, 2013 “Jessett Incident Analysis” regarding the Exhibition Place incident, the Employer argues that was not an adverse notation, but rather was used for training purposes. There was no disciplinary aspect to the training document.

30The Employer argues that the discharge was based on the January 2016 incident itself, and that nothing that was within the ambit of the sunset clause was taken into account in reaching the decision to terminate Jessett’s employment.

31According to the Employer, a supervisor who has known a worker for four years cannot ignore what he knows about the person, whether it is their attitude, work history, training received, and so on. The Employer argues that one must distinguish between the thought process and consideration of the Human Resources file. In this instance, it is argued that Weir had already made the decision to terminate Jessett’s employment, and then was considering whether there were any mitigating factors that should be considered. In that context he considered the Employer’s expectations of its TSOs; the court decision that had found Jessett’s testimony to be unreliable and had commented on his aggressive behaviour; and Weir’s own awareness of the additional training that had been provided to Jessett. The Employer asks me to consider that the incident was one that was extremely serious and worthy of termination of employment as it was a marked departure from the standard of care that Metrolinx expects of its employees.

32The Employer relied on the following decisions: North Bay Regional Health Centre v. Ontario Nurses’ Assn. (Sherritt Grievance), [2015] O.L.A.A. No. 171 (M. Newman) and Re District School Board of Niagara and ETFO (Werezak), 2016 CarswellOnt 10387 (Dissanayake).

DECISION

33The relevant provisions of the collective agreement are as follows:

4.14(2) The record of all disciplinary action and/or any adverse notation shall be removed from the employee’s file eighteen (18) months following such incident giving rise to the disciplinary action. …

Letters of counsel shall come off all corporate files, on application, after 12 months so long as the employee’s record remains discipline free over that period.

4.14(5) Complaint Investigation and Handling

The procedure regarding the investigation of complaints from members of the public will be based on the philosophy that our employees are innocent until proven guilty and shall be as follows:

… [process to be followed]

(c) Nothing herein will prevent the employer from interviewing employees concerning verbal complaints. However, verbal and written complaints which have not resulted in disciplinary action may be kept on record for a period of up to twenty-four (24) months. …

(d) should such record be used for disciplinary purposes then the record shall be null and void as set out in Article 4.14(2).

34The Metrolinx Corporate Human Resources Employee Relations policy regarding “Corrective Disciplinary Action” outlines the “types of discipline” as normally including four progressive steps of discipline: verbal warning, written warning, suspension and termination, but notes that some behaviour may require a more firm response, and may entail skipping some steps of the progressive discipline process.

35According to the Corrective Disciplinary Action portion of the policy, “whenever the records of an employee’s Human Resources file are to be used to justify the disciplinary action being taken, the records must meet the following criteria”, and are subject to the particular applicable terms of the collective agreement:

1. They must form part of the employee’s Human Resources file;

2. The employee must be aware of the records on his/her file;

3. The employee must have received a copy of all disciplinary notices;

4. The date of the records must be within the appropriate time frame; and,

5. The records must directly relate to a similar act of misconduct or the doctrine of culmination incident must apply.

(emphasis added)

36There is no dispute that at Jessett’s request, the Grievor’s Human Resources file had been appropriately purged of the September 2014 letter of counsel and the customer complaints, and there was nothing disciplinary on Jessett’s file. However, Jessett’s work location file, kept in the Transit Safety Office, had not been cleared. It contained the September 10, 2014 letter of counsel from Weir, which noted that the Grievor had had 21 incidents of negative customer concerns in the two years previous.

37Pursuant to Article 4.14(2), letters of counsel should be removed from an employee’s corporate file after 12 months as long as the employee remains discipline free during that time, and if the employee has made application to have the letter of counsel removed. There is no dispute that the Grievor had been discipline free for 12 months after the September 10, 2014 letter of counsel, and he had requested that it be removed from his file. As such, it should have come off all his corporate files at some point on or after September 10, 2015, but before the January 2016 incident.

38I agree with the Union that the sunset provisions in Article 4.14(5)(c) would be applicable to the customer complaints on the Grievor’s file. If such complaints have not resulted in disciplinary action, the parties have agreed that they may be kept on record for up to 24 months. In Jessett’s case, all of the 2012 and 2013 customer complaints would have come off his record by July 27, 2015 at the latest following 24 months from the last such complaint. Thus, even assuming without finding that the September 10, 2014 letter of counsel about the customer complaints up to that date did not constitute use of those records for disciplinary purposes, those complaints had passed the 24 month period and should not have been on his record in any manner whatsoever. Had Weir not already dealt with the 2014 customer complaints (all 5 of which had been filed by July 16, 2014) prior to his meeting with Jessett on August 12, 2014, these five may still have been on Jessett’s record by the date of the January 2016 incident, but there is no evidence to support that view.

39As already noted, Weir had stated that the September 10, 2014 letter of counsel dealt with all of the customer complaints against the Grievor up to that point. That letter had been removed from the Grievor’s file by the date of the January 2016 incident. As such, there was nothing on the Grievor’s record at that juncture, a fact that was noted in Cowan’s investigative report even though he alluded to the litany of customer complaints about Jessett.

40For all of the above reasons, I am satisfied that by operation of the sunset clause there was nothing on Jessett’s record at the time of the January 2016 incident.

41So what is to be made of Weir’s impugned references in the February 25, 2016 letter of termination? He clearly stated in the letter that Jessett had been spoken to previously in relation to excessive use of force and had been provided with additional training. He also stated that Jessett had been spoken to about the Employer’s concerns in relation to Jessett’s aggressive, rude and unprofessional behaviour when dealing with customers, and had been provided with additional training for customer service.

42Weir was an honest and forthright witness and conceded that when he had written these lines, he had in part had in his mind the numerous customer complaints and the letter of counsel he had issued to Jessett after having met with him about the customer complaints. Weir had been concerned about the pattern of the Grievor’s tendency to exercise aggressive force options and that Jessett seemed not to benefit from retraining.

43I note that these were the same concerns that Weir had expressed to Mary Proc in his January 15, 2016 email. Given the proximity of that email to the time of the incident, on its own it may not have been of concern had there been no reference to the Grievor’s history by the point at which Weir issued the letter of termination on February 25, 2016. However, by February 2016 there is no doubt that Weir knew that the Grievor had nothing on his record in his Human Resources file. Nonetheless, the letter of termination contains references to Jessett having been spoken to previously in relation to complaints of excessive use of force, and about his aggressive, rude and unprofessional behaviour when dealing with customers. Weir also noted in the letter of termination that Jessett’s “tendency to exercise aggressive force options has been a troubling pattern within your short employment as a Transit Safety Officer”. After these references (and reference to the Grievor’s breach of various policies), Weir then went on to state that “as a result the employment trust is irrevocably severed and you are hereby terminated for cause”.

44In Tri-Krete Ltd., cited above, the arbitrator allowed a grievance and reinstated an employee with full compensation where the employer had acknowledged in the termination letter that it had relied upon the grievor’s past record when deciding to terminate his employment. The arbitrator found that was a violation of the sunset provisions of the collective agreement, and held that the discharge was null and void. In accordance with the sunset clause in the collective agreement in that case, and by operation of a settlement reached regarding some discipline, there should not have been anything on the employee’s record on the date of termination. In his testimony, the President of the company had stated that the employee had been terminated for what he had done on a particular date, but he also indicated that there had been many problems with the employee in the past, and that the final incident had been “the straw that broke the camel’s back” (para. 31).

45Arbitrator Trachuk considered the jurisprudence before her, which entailed a review of the same decisions that the Union has relied upon in the case before me. I adopt her reasoning wherein she wrote as follows:

75. The sunset clause in the collective agreement is mandatory and a substantive right. Breaching the terms of the settlement of a grievance also violates the substantive rights of the grievor and the union. Such provisions offer employees a chance to start with a clean slate and provide the incentive to avoid further discipline. If an employer relies upon prior discipline in the face of such a provision it does not have just cause for the discipline imposed.

76. This issue has been considered by a number of arbitrators, by the Ontario Divisional Court and the Ontario Court of Appeal. One line of cases supports the view that discipline or discharge is null and void if it is imposed after an employer has relied upon prior discipline to which a sunset clause should have applied. In those cases arbitrators have reinstated the grievor with full compensation.

77. In Molson’s Brewery, supra, the grievor was discharged for attempted theft. The dismissal letter referred to the grievor’s prior discipline record. The collective agreement contained a provision that prior discipline would not be referred to after one, two or three years depending on the nature of the offence. The arbitrator had found that the provision was directory only but the Divisional Court disagreed and held that it was mandatory and that it had been breached. It stated:

That being so, the discharge of the grievor was not in accordance with the terms of the collective agreement. In our view the respondent company had no right under the collective agreement to discipline or discharge the grievor in circumstances in which it attached significance or weight to his prior discipline record.

78. It remitted the matter back to the arbitrator but said that the respondent company could not discipline or discharge the grievor. It directed the arbitrator to reinstate the grievor with full compensation.

79. The Court of Appeal upheld the decision of the Divisional Court. It said that, “in exercising its power to discharge an employee under Article 3, the company was bound by that article to conform to all the clauses of the agreement.” It did find that the Divisional Court should not have ordered the payment of full compensation to the grievor. Instead it should have remitted the matter to the arbitrator to be “considered in accordance with the reasons of the Divisional Court”. However, as the reasons of the Divisional Court were clear, there can be little doubt what they thought the compensation should be.

80. That line of reasoning has been followed in other awards including Rexdale Mobile Truck Wash (supra) and Spartech Color-Stratford (supra). In both of those cases, the result of the employer relying upon “stale dated” discipline was that the discharges were held to be null and void and the grievors were reinstated with full compensation.

81. The company provided two awards in which the result of an employer violating a sunset clause was for the arbitrator to determine what the appropriate penalty would or should have been if that discipline were not considered. This is sometimes called the “proportionate” approach. In Air Transat (supra) the arbitrator upheld the discharge but it does not appear that the Molson Brewery decisions were provided to her. In the Crown in Right of Ontario, LCBO (supra) award, the union did not ask that the termination be nullified. In that case, the arbitrator took the violation of the sunset clause into account and reinstated the grievor with conditions.

82. Article 5.01(b) is an important substantive right in this collective agreement. It is included in the management rights section of the collective agreement as it modifies the company’s power to discipline. The violation of that right is a serious matter for the union and the grievor. The company’s reliance upon past discipline was a violation of the collective agreement and cannot, therefore, be just cause for discipline. As that was part of what the company relied upon to terminate the grievor, the discharge is null and void. I agree with the reasons of the arbitrators in Spartech Color-Stratford and Rexdale Mobile Truck Wash (1981) as to why that is the correct approach. In Rexdale Mobile Truck Wash (1981), the arbitrator stated:

I do not believe, in the absence of a clear contractual intent to that effect, that it would be either a fair or a realistic approach to seek to make exceptions based on a consideration of the degree of influence which the stale discipline had in the employer’s decision to terminate or otherwise discipline an employee. On the basis of these considerations, and apart from any other consideration, the approach advocated by Counsel for the Employer, appears as a difficult, and I believe a fanciful alternative, to the reasoning and approach accepted and applied by the Divisional Court and the Court of Appeal in Molson’s. In this respect, it is clear that the Court considered the discharge of the employee for theft in that case to be void ab initio and incapable of remedial resurrection. It did not seek to assess the degree of influence which the stale discipline played in the employer’s decision to terminate the employee. The Court held that the effect of the employer considering the employee’s stale-dated disciplinary record annulled the discipline completely, with the result that the employer could not, “now discipline the grievor by reason of the incident of February 20, 1981”. [emphasis in original]

83. That reasoning was followed by the arbitrator in Spartech Color-Stratford. He stated:

The issue now is whether I should follow the reasoning in the line of cases advanced by the Union or the line advanced by the Company. I prefer to adopt the decision of the Ontario Divisional Court in the Molson case and the reasoning set out in the Rexdale Mobile Truck Wash case for several reasons. First, a substantive right has been breached. I adopt the divisional court’s reasoning that if one were to hold the article to be only directory it would have little or no value. Second, I am not persuaded by the reasoning in the three cases cited by Company counsel. In two of the cases the decisions gave little or no rationale for the conclusion reached. Third, none of the cases referred to the Molson decision. Fourth, the Court in that decision in remitting the matter back to the arbitrator stated in part “We can see no final result…other than… the grievor be reinstated with full compensation”. I note in that decision the discharge was for theft and even in such a case the court was prepared to void the discharge. Finally as pointed out in Rexdale the voiding of the discipline takes away the difficult task of determining after the fact how much influence the stale discipline had on the subsequent disciplinary record.

46In the case before me the Employer has relied upon different decisions from those before Arbitrator Trachuk. The District School Board of Niagara case, cited above, raised the question of whether an employer could give counseling and guidance to an employee without it being considered as discipline. That is not a question of much import in the case before me because the parties have agreed that there is a sunset clause that applies to letters of counseling, so whether such letters are disciplinary or not is not a matter that I need to address. As well, the parties to the collective agreement before me have agreed on what is to be done with customer complaints, and when and how they come off an employee’s record. As such, I have not found that decision to be helpful in my consideration of the substantive issue before me.

47In the North Bay Regional Health Centre decision, cited above, it appears that Arbitrator Newman had issued a preliminary award in which she had adopted the proportionate approach rather than the void ab initio approach. However, since her reasoning for doing so was not apparent in the decision submitted, I cannot determine whether she had considered the Divisional Court or the Court of Appeal decisions in Molson’s Brewery. What is clear is that the arbitrator had decided that, in the context of a workplace harassment investigation, the sunset clause may have no bearing, so she was of the view that a balancing of interests approach may be necessary. The arbitrator needed to hear the facts of the case before her before she could “determine whether there has been a breach of the sunset clause, the nature of the breach in relation to the allegation, and its impact on the resulting discipline, and to weigh all competing interests and relevant factors before determining the appropriate remedy for a breach, if established” (para. 5).

48The case before me is not one involving the Occupational Health and Safety Act and workplace harassment issues, and I am not of the view that there is any reason to engage in a balancing of interests exercise. This case, much like that in the Molson’s Brewery case, involves a serious issue: in that instance it was theft from the employer, and in the case before me it is whether Jessett’s use of force against a 70 year old woman was justified. Notwithstanding how serious the issue is however, I feel constrained by the reasoning of the courts.

49The language of the collective agreement before me is even stronger than the language in the Molson’s Brewery collective agreement. In that case the parties had agreed that previous discipline “would not be referred to” after the expiration of various periods of time depending on whether there had been a suspension, or some lower form of discipline. That suggests that the discipline may remain in a worker’s file, but it could not be referred to. Yet the courts were of the view that the language was mandatory, and that the employer could not rely on anything that by operation of the sunset clause was stale.

50In the Metrolinx collective agreement the parties have used language that includes “shall be removed from the employee’s file”; “letters of counsel shall come off all corporate files, on application” (Article 4.14(2)); have agreed that if customer complaints have been used for disciplinary purposes, then the record “shall be null and void as set out in Article 4.14(2)”, and if not used for disciplinary purposes, they may only be kept on record for a period of up to 24 months.

51Based on the language of Article 4.14, I have no trouble accepting the Union’s assertion that the language is mandatory in nature. The parties have agreed that the Employer must remove records from an employee’s file after the sunset period has passed and conditions have been met, as in this case, where Jessett applied to have the letter of counsel removed from his record following the passage of the 12 month sunset period during which he had remained discipline free.

52This sunset provision is a substantive right that the Union has bargained, and in the absence of any language in the agreement that would dilute that right, it must be given its plain and ordinary meaning. The only reason that the Union has negotiated the removal of negative records from an employee’s file is so that such records cannot be used against the worker if the conditions of the sunset clause have been met. To permit management to remove negative records, but to still rely on their respective recollection of the employee’s record, would completely nullify the purpose of the sunset clause.

53In this case Weir admitted that he had considered the volume of customer complaints about the Grievor and the letter of counsel that had been issued to Jessett in 2014. In my view, as the decision maker, Weir had no right under the collective agreement to give any consideration or weight to those issues because they were off Jessett’s record.

54While I accept that Weir may also have had other considerations, including the significant nature of the January 2016 incident itself, it would be much too difficult a task to try to carve out Weir’s inappropriate consideration and to try to ascertain what appropriate considerations may have led to his decision to terminate Jessett’s employment.

55In all of the circumstances, and for the reasons outlined above, I am constrained to uphold the grievance, set aside the discharge, and to order Jessett’s reinstatement to employment forthwith, with full compensation for lost earnings, benefits and seniority. I remain seized in the event that any issues arise out of the implementation of this decision.