GSB#2016-1229

Union#G70-16-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 (Jebamoney)

Union

• and -

The Crown in Right of Ontario (Metrolinx)

Employer

BEFORE

Randi H. Abramsky

Vice-Chair

FOR THE UNION

Dean Ardron Ursel Phillips Fellows Hopkinson LLP Counsel

FOR THE EMPLOYER

Amanda Hunter Hicks Morley Hamilton Stewart Storie LLP Counsel

HEARING

April 7, 2017

Decision

1On July 6, 2016, the grievor, Dishan Jebamoney, a Transit Safety Officer with Metrolinx, was terminated from his employment following an incident with a passenger that occurred on May 28, 2016. The Union timely grieved that dismissal, and seeks to have the grievor reinstated with full compensation. At the start of the hearing, the Union raised a preliminary motion that the grievance should be upheld and the dismissal vacated because the Employer, in deciding to discharge the grievor, relied on “adverse notations” which should not have been considered under the parties’ sunset clause in the collective agreement. The Employer denies that it did so, and asks the Board to dismiss the Union’s preliminary motion. This Decision addresses that motion.

Facts

2The Employer called one witness, Steve Weir, Manager of Transit Safety Operations. Mr. Weir was the deciding management official and, along with Human Resources, authored the termination letter. Mr. Weir has one direct report, the Senior Supervisor who is responsible for twelve supervisors, who, in turn, supervise approximately 80 Transit Safety Officers. Mr. Weir has held this position since 2011, and began to indirectly supervise the grievor in the Summer of 2015. Prior to that, the grievor reported to a colleague of Mr. Weir’s, Steve Harvey.

3The termination letter, dated July 6, 2016, recites events that occurred in May 2016. The letter continues:

The totality of those interviews, and your own responses, have only served to further raise grave concerns with respect to your actions and conduct as a Transit Safety Officer.

You have been previously spoken to in relation to complaints of excessive use of force and our concerns in relation to your aggressive, rude and unprofessional behaviour when dealing with customers. You have been provided with additional training on excessive use of force. [Italics added]

Your actions are a marked departure from the professional standards we expect of Transit Safety Officers. Your actions are a breach of various policies and procedures include the Special Constable Code of Conduct:

[Code citation omitted]

As a result, the employment trust is irrevocably severed and you are terminated for cause. In making this decision, I have taken into consideration your service of nine years with Metrolinx and our objective belief that rehabilitation and/or training will not serve to achieve any improvements in your judgment and behaviour.

4The italicized portion of the letter above forms the basis of the Union’s claim that the Employer improperly considered matters that should have been removed pursuant to the parties’ sunset clause. In relevant part, the clause reads:

Article 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.

Also relevant are Articles 4.14(4) and 4.14(5):

Article 14(4) Motor Vehicle Collision Record

A record of all motor vehicle collisions may be kept for up to five (5) years.

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

Article 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:

a) A complaint means a complaint received by GO Transit from a member of the public regarding the conduct of an employee.

b) If a complaint is to be considered for disciplinary action, it must be forwarded in writing by a complainant to GO Transit within one (1) calendar month of the incident in question. If such complaint is not received within the above time limit, the incident/complaint will not be considered for discipline.

This provision will not be required in cases involving allegations of a criminal nature.

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. All interviews concerning complaints must take place within fifteen (15) calendar days of receipt of the complaint by the respective department.

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

5The Employer’s “Corrective Disciplinary Action” policy, revised March 7, 2013, contains a “Statute of Limitations” which, for union employees, states: “Please refer to the relevant collective agreement.” It also states, in regard to “Employee’s Human Resources File” that “[w]henever 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: …4. The date of the records must be within the appropriate time frame…”

6As noted, Mr. Weir began to supervise the grievor indirectly in July 2015. He stated that, before that time, he knew about the grievor’s “reputation” as a Transit Safety Officer, which was that he was easily “hooked by individuals, and if offered the opportunity to go negative, he was more than willing to go there.” It is undisputed, however, that at the time of his termination, the grievor had no discipline on his record.

7Counsel for the Union requested particulars from the Employer regarding the meaning of the italicized paragraph. Counsel for Employer responded, stating that “[t]he reference to Mr. Jebamoney being spoken to about excessive use of force is a reference to the conversation that took place on May 18^th on the day of the BBQ at the Oshawa bus facility. …As you can see from the attached, that conversation led to a discussion between Steve Weir and Mr. Jebamoney about his reputation and what he can do to improve that.” Counsel also attached a “statement that Mr. Weir prepared describing in detail the conversation that he had with both the union and Mr. Jebamoney on May 18, 2016.”

8That statement, written by Mr. Weir on November 1, 2016, indicated that they had a “heart to heart conversation that lasted about 1.5 hours.” He continued:

Among many things that Dishan indicated that he had been told that management was out to get him and he had a target on his back. I explained to Dishan that was not the case but took the opportunity to explain to Dishan that I did have grave concerns with how he has conducted himself from time to time and that he had a reputation for being a hot head and that some staff have even indicated they did not wish to work with him. I further explained specifically to Dishan that if the incident in which he sent someone to hospital at the Richmond Hill GO Station, or rendered someone else unconscious on a GO Train were to occur again, I was gravely concerned his employment would be terminated.

Dishan seemed surprised and upset by the feedback but I took quite some time to explain it. I asked Dishan where he saw himself in 5 years – he indicated not at GO because everything he does is misread and he can’t shake the impression he’s a bad apple. I offered Dishan some feedback on things he could do to improve, I also advised Dishan I would speak to the supervisory team about giving him opportunities to show that he is not what he is perceived as and give him some growth opportunities to change that career path….

9Mr. Weir confirmed at the hearing that he and the grievor did have a conversation about his work performance and his future with the Employer on May 18, 2016. They then discussed how he could improve the situation. Mr. Weir testified that he told the grievor that he “needs to de-escalate every incident, and not get hooked.”

10Mr. Weir confirmed that the “incident in which [the grievor] sent someone to hospital at the Richmond GO Station involved an arrest that occurred on January 3, 2013, involving a Mr. “L”. The unconscious individual on a GO Train involved an arrest on February 26, 2014, involving a Mr. “B.” Mr. Weir testified that the grievor wanted to discuss those two incidents in more detail, but he was not familiar with the details and moved the conversation to his reputation more generally. He stated that he was aware of the lawsuits and incidents “at a high level.” The grievor was not disciplined for either incident, although he was “spoken to” in regard to the January 3, 2013 incident.

11An email dated January 16, 2013 from Christopher St. Amant, Transit Safety Sergeant – Patrol Section, to a number of managers and supervisors, “[f]or everyone’s records” indicates that Mr. St. Amant met with the grievor that day, with Union representation, about two incidents. The email states:

During our meeting I raised serious concerns about officer safety, and how some of his actions went contrary to our training. I also questioned his judgment of entering into a situation like this all over such a benign issue. Dishan agreed that he needed to take his own safety more seriously and make the appropriate calls to dispatch before entering into similar situations. Dishan also admitted that the situation was rather ridiculous for a matter such a small matter to begin with. He wished it hadn’t turned out the way it had and that no one had been injured as a result.

12For reasons which are unclear, this email reappeared in a March 1, 2016 email from Bill Grodzinski to Steve Weir and Steve Harvey, although it is addressed to Mr. Harvey. It states: “This is the other incident involving him that stands out - there are several others so I am asking we complete a summary of everything he has been involved in since day one.” Mr. Weir was unaware of why this email had been sent. Nor did he ever see the summary referred to in the email.

13Lawsuits were filed against Metrolinx and the grievor, personally, in the “L” and “B” incidents. At the time of his discharge, both lawsuits were still pending. Mr. Weir was aware of both lawsuits, and in the Fall of 2016, after the grievor’s discharge, he provided an examination for discovery in the “B” matter, but he did not know their current status.

14Mr. Weir testified that management is routinely advised of arrests that are made, so that management can respond if an issue arises. One such memo was introduced into evidence, dated February 28, 2014. It states:

On February 26^th 2014 Dishan was involved in an arrest IR #20140227-32. This matter is now part of an investigation that we will be conducting. Should you receive any information or be contacted by anyone involved in the incident can you please refer them to me as I will be the point person.

15A more detailed email chain was also introduced into evidence related to the investigation which followed. Mr. Weir was “cc’d” on this email chain.

16Also introduced into evidence was a July 6, 2016 email from Edward Tubaro to Bill Grodzinski, along with Randy Cowan, an investigator, Steve Harvey and Steve Weir. It lists the grievor’s arrest history from 2014. The grievor was discharged on that date. There is no evidence that Mr. Weir saw this email, as he was on vacation on that date.

17Mr. Weir testified, on examination-in-chief, that in deciding to discharge the grievor he only took into account the events that took place on May 28, 2016. The italicized paragraph in the termination letter related to his discussion with the grievor on May 18, 2016 in which he reviewed the Employer’s expectations. On cross-examination, Mr. Weir acknowledged that the “L” and “B” incidents were two examples of complaints of excessive force referred to in the termination letter, but stated that was “not in his mind with that paragraph.” He stated that it involved his conversation on May 18 – the pattern of complaints, his reputation, and the reinforcement of the Employer’s expectations. He acknowledged that the concerns about the grievor’s reputation included the “B” and “L” incidents. The italicized paragraph was included, he stated, not as a basis of the termination but to enable the grievor to understand that the Employer believed that its expectations had been made clear. When Union counsel suggested that was not what the letter stated, Mr. Weir stated, “I respectfully disagree.”

18It is undisputed that Article 4.14 was substantially revised in the last round of collective bargaining. Both parties relied on a prior GSB decision, Re OPSEU and Metrolinx- GO Transit (Kay Grievance), GSB No. 2012-3984 et al. [2014] O.G.S>B.A. No. 97 (Gray), which set out the prior provision. Previously, Article 4.14(2) provided:

Under the corrective progressive discipline procedure, the Human Resources office shall make null and void disciplinary documents from the employee’s file from the date of issuance of each offence on the following basis:

− Written warning – after twelve (12) calendar months;

− Suspension of 4 days or less – after eighteen (18) months;

− Suspension for 5 day or more – after twenty-four (24) calendar months;

− Discharge records to remain on file for five (5) years (unless agreed otherwise) provided the employee makes application to the Employee Relations Consultant for its removal within one month of the five (5) year expiry or any time thereafter.

− Or, such documents may be removed irrespective of the above as the result of any settlements under the grievance procedure. Furthermore, if an employee record has remained clear for a period of two (2) years following the expiry of the disciplinary document (i.e., the date on which it became null and void), it shall be removed from his/her employee file upon application to the Employee Relations Consultant.

Letters of counseling or instruction are non-disciplinary and will remain on file for twenty-four (24) months and are subject to the same conditions for removal as discharge letters outlined in the foregoing.

Reasons for Decision

19On December 13, 2016, Vice-Chair Gail Misra issued a decision, Re Amalgamated Transit Union, Local 1587 and Metrolinx- GO Transit (Jessett), GSB No. 2016-0259, involving the new “sunset” clause contained in the parties’ collective agreement, Article 4.14(2). That case involved the discharge on February 25, 2016 of another Transit Safety Officer, Clayton Jessett, following an incident with a passenger. The letter of discharge relayed the facts of the incident, and then continued:

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.

20Vice-Chair Misra determined that although a September 10, 2014 letter of counsel, which noted 21 incidents of negative customer concerns of aggressive, unprofessional conduct, or rudeness, including complaints of excessive use of force, had been removed from his Human Resources file, a copy remained in his work location file. The Board found that “it should have come off all his corporate files on or after September 10, 2015, but before the January 2016 incident.” She also found that “the sunset provisions in Article 4.14(5)(c) would be applicable to the customer complaints on the Grievor’s file” and should have come off his record by July 27, 2015 “at the latest.” She stated, at par. 38: “those complaints had passed the 24 month period and should not have been on his record in any manner whatsoever.” Based on the evidence, at par. 53, she found that management “had considered the volume of customer complaints about the Grievor and the letter of counsel that had been issued to Jessett in 2014.” The Employer “had no right under the collective agreement to given any consideration or weight to those issues because they were off Jessett’s record.”

21Vice-Chair Misra determined, at par. 51, that based on the language the parties used in Article 4.14, the language “is mandatory in nature.” She also concluded, at par. 52:

This 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 the negative records, but to still rely on their respective recollection of the employee’s record, would completely nullify the purpose of the sunset clause.

22The parties dispute the applicability of this decision, as it is agreed that there was no discipline in the Grievor’s file, or any letters of counsel. Instead, the Union asserts that the Employer improperly considered “adverse notations” in Mr. Weir’s possession, specifically those involving the incidents in regard to “L”, from 2013, and “B”, from 2014. It submits that Article 4.14(2) requires “any adverse notation” be removed from the employee’s file eighteen (18) months following such incident. It submits that the information in Mr. Weir’s possession constitutes “adverse notations” about the grievor and were improperly considered by him in the termination decision. It submits that Mr. Weir acknowledged that the reference to “complaints of excessive use of force and our concerns about your aggressive, rude and unprofessional behaviour when dealing with customers” included “L” and “B.” It asserts that the purpose of Article 4.14 is to provide employees with a “clean slate” in terms of prior negative incidents after the passage of 18 months, and that the Employer did not do so here. In further support, the Union relies on Re Tri-Krete Ltd. and Labourer’s International Union of North America, Local 506 (Holness Grievance), [2012] O.L.A.A. No. 302 (Trachuk); Re Spartech Color-Stratford and I.A.M.A.W. (Markle Grievance) (2009), 184 L.A.C. (4^th) 55; Re Rexdale Mobile Truck Wash (1981) Inc. and Brewery, General and Professional Workers’ Union (McCallum) [1995] O.L.A.A. No. 922 (MacLean); Re Canadian Union of United Brewery, Floor, Ceral Soft Drink and Distillery Workers, Local 304 and Molson’s Brewery (Ontario) Ltd.[1982] O.J. 1364 (Ont. Div. Ct.) (which was later affirmed by the Ontario Court of Appeal).

23The Employer asserts that the Union is stretching the idea of “adverse notation” to the point of absurdity. It argues that the Union’s interpretation makes no labour relations sense, and prohibits the Employer from having an “adverse notation” on its mind. It argues that just because Mr. Weir received or was copied on emails, those emails do not constitute an “adverse notation.” It submits that none of these emails were ever in the grievor’s file and therefore could not be “removed.” It asserts that lawsuits do not vanish with a sunset clause. It compares the documents related to the two lawsuits to arbitration awards accessible to the public, citing Re Black Diamond Cheese and Black Diamond Cheese Employees Independent Union, Local 555, 1992 CarswellOnt 1221 (Jackson). It contends that the impugned paragraph was a reference to Mr. Weir’s mentoring discussion with the grievor on May 18, 2016 – less two weeks before the incident that led to his discharge – which set out the Employer’s expectations, and the training that had been provided. The Employer submits that counseling an employee is appropriate and should be encouraged, citing Re The Elementary Teachers Federal of Ontario and The District School Board of Niagara, 2016 CarswellOnt 10387 (Dissanayake).

24It is undisputed that Article 4.14(2) was significantly changed in the last round of collective bargaining. The parties changed the provision from Human Resources “shall make null and void disciplinary documents from the employee’s file” to what is currently in the collective agreement – “The record of all disciplinary action and/or adverse notation shall be removed from the employee’s file eighteen (18) months following such incident giving rise to the disciplinary action.” The parties did not define “adverse notation” but it clearly means something different from formal disciplinary action.

25The Employer suggested, in argument, that it meant “letters of counsel”. With respect, I cannot agree. Letters of Counsel are dealt with specifically later in the provision. It is a basic rule of contract interpretation that when the parties use different words, they mean different things, and that the words used should be given meaning, rather than being rendered meaningless.

26In my view, there are a number of documents introduced at the hearing which are NOT “adverse notations.” These include the two lawsuits filed by “L” and “B.” Nor are the routine emails concerning arrests made, or the emails concerning the investigation of those arrests. Those are regular business documents made in the normal course of business. I also do not find the arrest record to be an “adverse notation.” It is a factual record of the grievor’s arrests since 2014, and there is also no evidence that Mr. Weir saw it or considered it.

27There are, however, two documents which do appear to be “adverse notations.” They are the January 16, 2013 email from Christopher St. Amant “for everyone’s records” concerning the “serious concerns” he raised with the grievor about two incidents, one of which involved the “L” arrest. This, on its face, appears to be an informal verbal counseling. The other is the March 1, 2016 email from Bill Grodzinski, with the email chain which includes the January 16, 2013 email. Neither of these, however, were in the grievor’s file. Nor did these emails directly involve Mr. Weir. He was sent copies or “cc’d” but Steve Harvey appears to be the main management person involved. There is no evidence that Mr. Weir considered these documents in the discharge decision.

28But he did consider the grievor’s reputation for being a “hot head” and the “L” and “B” complaints about excessive use of force. Although he testified that he based the decision only on the events of May 28, 2016, the discharge letter suggests otherwise. The letter, after reviewing the events of May 28, continues: “You have been previously spoken to in relation to complaints of excessive use of force and our concerns in relation to your aggressive, rude and unprofessional behaviour when dealing with customers.” According to the Employer and Mr. Weir, that sentence refers to the May 18, 2016 discussion he had with the grievor about his reputation, during which he advised him what he needed to do to improve. Mr. Weir acknowledged that during that discussion he specifically referred to the “L” and “B” incidents, noting that if anything like that happened again, he was “gravely concerned his employment would be terminated.” The grievor was never disciplined for those two incidents. The “L” incident took place in January 2013. The “B” incident took place in February 2014. Under the collective agreement, Article 4.14(5), “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.” Yet the Employer considered them – albeit at a “high level” – in assessing the grievor’s discharge.

29The way in which the letter is written suggests that both the events of May 28 and the prior “complaints of excessive use of force and our concerns in relation to your aggressive, rude and unprofessional behaviour when dealing with customers” were considered. The disputed paragraph is placed just after the recitation of the events of May 28^th and before the sentence “Your actions are a marked departure from the professional standards we expect” and a “breach of various policies and procedures….” The letter then continues: “As a result, the employment trust is irrevocably severed and you are terminated for cause.” This wording suggests that the prior complaints of excessive use of force and the Employer’s concerns in relation to the grievor’s aggressive, rude and unprofessional behaviour contributed to, and were relied upon, in the Employer’s decision that the employment relationship was irretrievably broken.

30The paragraph does not simply refer to Mr. Weir’s reminder to the grievor about the Employer’s expectations. It does not say – “you have previously been made aware of the Employer’s expectations in regard to excessive use of force and appropriate behaviour, and have received additional training on excessive use of force.” It goes well beyond that – “[y]ou have been previously spoken to in relation to complaints of excessive use of force and our concerns in relation to your aggressive, rude and unprofessional behaviour…” Those complaints include the “L” incident and the “B” incident. By its terms, combined with the evidence at the hearing, I am persuaded that the disputed paragraph refers to more than just a mentoring session, and involved a consideration of the grievor’s prior conduct.

31The question is whether this was this prohibited by the collective agreement. The Employer asserts that the “L” and “B” incidents were not “adverse notations” on the Grievor’s file. It argues that those incidents cannot be removed from management’s mind. The Union equates “adverse notation” in an employee’s file with an adverse event, and asserts that the sunset clause precludes the Employer from relying on the event. It submits that management may be aware of an incident, there may be documents related to a lawsuit in the Employer’s possession, but submits that the Employer may not rely on those events as a factor in its disciplinary decision.

32The answer is found in the Jessett decision. Although there is no evidence that the Employer relied on an “adverse notation” improperly contained in the Grievor’s file, Mr. Weir did rely on prior complaints of excessive force which occurred more than 24 months before May 28, 2016. Under Article 14.4(5), he could not do so. There is no evidence that the “prior complaints” involved more recent matters. As found by Vice-Chair Misra in the Jessett decision, at par. 52 and 53: “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.” Under that clause, management “had no right under the collective agreement to given any consideration or weight to those issues…”

33The Employer is correct that knowledge of an event cannot be erased from a person’s mind, but the Union is correct that, under the sunset clause, that knowledge cannot be relied upon. There is a difference between knowing something and relying upon it. It may be challenging to separate them, but it is not an impossible task and it is not a semantic game. The decision to discipline must stand, or fall, only on what may be properly relied upon under the collective agreement.

34Nor, under the Jessett decision, is there any basis to determine whether the same decision would have been reached without the “prior complaints” having been considered. As stated at par. 54: “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.” The same conclusion was reached in Re Tri-Krete Ltd., supra; Re Spartech Color-Stratford, supra; Re Rexdale Mobile Truck Wash (1981), supra; and it Re Molson’s, supra.

35The principle espoused in Re The Elementary Teachers Federation of Ontario, supra at par. 17, that “it is beyond dispute that an employer is entitled to provide guidance and counsel to an employee without engaging in disciplinary action” is undoubtedly true. That principle, however, does not mean that the Employer can rely on “stale dated” incidents or discipline in determining the appropriate disciplinary response.

36In the Ontario Divisional Court’s decision in Re Molson’s Brewery (Ontario) Ltd., supra, even when prior discipline is considered to determine whether to ameliorate the penalty of discharge, it is viewed as a violation of the sunset clause. The Court found, at par. 5 that it was apparent that management was “going to attach significance and did attach significance to the discipline record without limitation to the period involved in formulating their recommendation…that the employee be discharged.” It further stated at par. 8, that “the company did attach some weight to the prior offences or the discipline in its decision-making process and therefore, it acted in breach of [the sunset provision] on any reasonable interpretation.”

37The recent GSB decision in Jessett, supra, followed the Molson approach, and under the principle that the GSB is “one Board”, I am bound to follow that decision. I am also persuaded, on the language of the provision, that it was a proper interpretation of the parties’ collective agreement. The negotiated sunset language places a very significant constraint on what management may consider when deciding to discipline an employee. It clearly limits what the Employer may rely upon. But that limitation is what the parties’ negotiated. Accordingly, as in the Jessett case, I conclude that I am constrained to grant the Union’s preliminary motion and uphold the grievance, set aside the discharge, and order the grievor be reinstated to employment forthwith, with full compensation for lost earnings (subject to the duty to mitigate), benefits and seniority.

Conclusion

38For all of the above reasons, the Union’s preliminary motion is granted. The grievor is to be reinstated to employment forthwith, with full compensation for lost earnings (subject to the duty to mitigate), benefits and seniority. I will remain seized in regard to the interpretation and implementation of this decision.