GSB# 2018-0212

UNION# 2018-0164-0015

IN THE MATTER OF AN ARBITRATION

Under

THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT

Before

THE GRIEVANCE SETTLEMENT BOARD

BETWEEN

Ontario Public Service Employees Union (Robbins)

Union

• and -

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

Employer

BEFORE

Michael Lynk

Arbitrator

FOR THE UNION

Jesse Gutman Ontario Public Service Employees Union Grievance Officer

FOR THE EMPLOYER

Andrew Cogswell Liquor Control Board of Ontario Counsel

HEARING

April 5, June 3, July 23, August 29, 2019

Decision

Introduction

1This decision addresses the termination grievance of John Robbins, a seasonal worker with the Liquor Control Board of Ontario (LCBO) at its London Retail Services Centre (the “warehouse”) in London, Ontario. Mr. Robbins had originally been hired in May 2011 to work in the LCBO warehouse. He was terminated in April 2013, but was reinstated pursuant to Minutes of Settlement signed in June 2015. The Minutes stipulated that Mr. Robbins could not engage in any conduct which would constitute insubordination or would otherwise justify any discipline in the opinion of an arbitrator. In effect, the Minutes acted as a last chance agreement for Mr. Robbins. The Minutes were set to expire on 15 June 2018.

2As per the 2015 Minutes, I remained seized of the matter.

3Subsequently, in March 2018, the LCBO terminated Mr. Robbins again. In its termination letter, it alleged that his work performance was low, he had misused company time and he had demonstrated disrespectful behaviour towards his supervisor. The LCBO argued that these employment concerns satisfied the red lines on work misconduct laid out in the 2015 Minutes, and his dismissal was justified. On behalf of Mr. Robbins, the Ontario Public Service Employees Union (OPSEU) filed a grievance against his dismissal, and the matter came back before me.

Agreed Statement of Facts

4At the beginning of the hearing, the LCBO and OPSEU provided me with an Agreed Statement of Facts, which greatly simplified the fact gathering and determination process before me. It reads as follows:

The LCBO and the Union (hereinafter “the Parties”) agree to the following facts for the purposes of the hearing and without prejudice or precedent to positions taken or arguments made in this hearing or other grievances and/or hearings. The Parties agree that additional information may be presented at the hearing by viva voce evidence.

I. The Parties

1. The Liquor Control Board of Ontario (“LCBO” or the “Employer”) is a provincial agency that sells alcohol within the jurisdiction of Ontario.

2. The Ontario Public Service Employees Union (“OPSEU” or the “Union”) is a public sector union with a membership of over 155,0000 persons. OPSEU is a certified bargaining agent for the Ontario Public Service bargaining unit across the province of Ontario, a relationship covered by the Crown Employees Collective Bargaining Act (“CECBA”) and the Parties’ Collective Agreement.

3. The Grievor commenced employment with the LCBO on or around May 2, 2011, as a fixed term employee at the London Warehouse. On or about August 11, 2011, the Grievor was appointed as a Casual warehouse worker and on December 19, 2011, the Grievor was appointed to the position of seasonal warehouse worker.

4. At all material times, the Grievor was a bargaining unit employee represented by OPSEU and the terms and conditions of his employment were governed by a collective agreement between the LCBO and OPSEU (the “Collective Agreement”). A copy of the Collective Agreement is attached hereto as Exhibit 1.

II. The LCBO’s London Retail Service Centre

5. The LCBO operates a warehousing facility located at 955 Wilton Grove Road (the “London Warehouse”).

6. The London Warehouse is approximately 440,000 square feet in size, which is spread out over a one (1) story facility.

7. The London warehouse is responsible for receiving, storing and delivering beverage alcohol and specialty items to approximately 245 LCBO Retail Stores, 194 Retail Outlets and 175 Grocery Stores throughout western Ontario. The London Warehouse handles, on average, over 30 million cases of product per year.

8. Of the 217 bargaining unit employees employed at the London Warehouse, 192 are employed as warehouse workers (excludes warehouse clerks and maintenance employees), who are responsible for performing tasks related to the receiving, storage and shipping of product in and out of the London Warehouse. Specifically, warehouse workers perform functions related to:

i. Loading and unloading containers and trailers;

ii. Moving product to and from storage; and

iii. Assembling orders for shipment.

9. Bargaining unit employees, including warehouse workers, are generally scheduled to work one (1) of three shifts: the day shift (from 8:00 a.m. to 4:00 p.m.), the afternoon shift (from 4:00 p.m. to 12:00 a.m.), or the midnight shift (from 12:00 a.m. to 8:00 a.m.). The majority of bargaining unit employees, however, are scheduled to work either the day or the afternoon shift.

10. During non-peak periods (i.e. approximately January – April) the London Warehouse operates only the day and afternoon shifts.

11. During each shift, warehouse workers are entitled to one (1) thirty minute unpaid lunch break, and two (2) fifteen minute breaks. The breaks are scheduled as follows for the Afternoon shift:

i. Lunch break: 7:30 – 8:00PM

ii. First break: 9:45 – 10:00PM

iii. Second break: 11:45PM – 12:00AM (i.e. end of shift)

12. All break times are signaled to employees through the use of an audible buzzed system. The buzzer sounds at the beginning and end of each break period.

III. The Last Chance Agreement

13. The Grievor was terminated on April 8, 2013. The Grievor filed several grievances that proceeded to the Grievance Settlement Board and were settled by way of Minutes of Settlement (“The Settlement” or “MOS”) on June 5, 2015, with Vice-Chair Lynk seized. A copy of the MOS is attached hereto as Exhibit 2.

14. The terms of the settlement included a last chance agreement, set to expire on June 15, 2018. The pertinent sections of the MOS are as follows:

15. As a condition of the Grievor’s reinstatement, the Grievor shall comply with the following:

a. The Grievor shall successfully complete all training and certifications that are required of him by the LCBO;

b. The Grievor shall not, during working hours or otherwise, engage in any conduct which constitutes insubordination;

c. The Grievor shall not, during working hours or otherwise, engage in any conduct which constitutes a health and safety risk to himself or others and/or which constitutes an infraction of LCBO health and safety policies, procedures, practices or rules; and

d. The Grievor shall not, during working hours or otherwise, engage in any conduct which is found to justify discipline (in any form) in the opinion of an arbitrator.

9. The Parties agree that for the three (3) year period commencing on the Start Date, should the Grievor engage in any conduct that constitutes a failure to abide by the requirements of this Agreement, including, without limitation, the requirements set forth in paragraph 8 herein, such conduct shall result in the Grievor’s discharge from employment for just cause.

10. The Parties agree that any grievance filed by the Grievor with respect to the Grievor’s discharge from employment with the LCBO pursuant to paragraph 9 of this Agreement shall be limited solely to the question of whether or not the Grievor engaged in the conduct described in paragraphs 8 and/or 9 herein. If the arbitrator finds that the Grievor did engage in such conduct, the Parties agree that the arbitrator shall not have the authority to remove or substitute the penalty of discharge, notwithstanding any provisions that may be set out in the Collective Agreement, the Labour Relations Act, 1995 or any other applicable law.

IV. The Grievor’s Termination

15. On February 6, 2018, the Grievor was working his normal afternoon shift, and was stationed at Lane 1 of the End of Line area in the London Warehouse. At approximately 7:27pm, prior to the 7:30 pm buzzer signaling the lunch break, the Grievor, along with co-worker Joe Kraemer started walking away from their workstations. The Supervisor, Mike Wilson, attempted to speak a few times to the Grievor and Mr. Kraemer regarding them leaving their work station, with little success. The Grievor proceeded to take his break at the buzzer and continue his shift thereafter.

16. Later that evening, on February 6, 2018, Mike Wilson, Operations Supervisor communicated the earlier events to Mark Fletcher, Operations Manager, via email. Mr. Wilson composed a second email with additional details the next afternoon on February 7, 2018. A copy of the emails are attached hereto as Exhibit 3.

17. On February 15, 2018, the Grievor received a letter from the [sic] Mr. Fletcher giving notice of a disciplinary/investigation meeting, noting that he would be making a determination whether the Grievor had violated the MOS. A copy of the February 15, 2018 letter is attached hereto as Exhibit 4.

18. On February 20, 2018, the Grievor met with the Manager and Supervisor, with Union representation. They discussed the February 6, 2018 incident. Meeting notes were taken by Michelle Farrugia, Human Resources Advisor and are attached hereto as Exhibit 5.

The meeting was attended by:

1. Mark Fletcher, Operations Manager;

2. Michelle Farrugia, Human Resources Advisor;

3. The Grievor (John Robbins); and

4. Greg Wilson, Local 164 President

5. By letter dated March 6, 2018, the Grievor was terminated from his employment (the “Termination Letter”). The Termination Letter sets out the reasons for his termination. For clarity, the Union/Grievor disputes that termination was appropriate in the circumstances. A copy of the Termination Letter is attached hereto as Exhibit 6.

6. The Grievor had continued to work up until the point of his termination on March 6, 2018.

7. On March 12, 2018, the Grievor filed the instant Grievance, 2018-0164-0015, contesting the termination and seeking reinstatement and to be made whole. A copy of the Grievance Form is attached hereto as Exhibit 7.

Collective Agreement

Article 27.3 of the governing Collective Agreement 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 Representative 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.

Additional Evidence

5Beyond the Agreed Statement of Facts, the LCBO and OPSEU both led additional evidence through witness and documents.

The Employer

6The LCBO called two witnesses: Michael Wilson, Operations Supervisor at the London warehouse; and Mark Fletcher, Afternoon Operations Manager at the warehouse.

Michael Wilson

7As Operations Supervisor, Mr. Wilson occupied a front-line management position which oversaw the core logistical functions at the London warehouse. This included receiving and storing alcohol products from the LCBO’s central distribution facilities, assembling them into pallets, and directing the pallets to be shipped to fulfill specific orders requested by the 600-plus LCBO stores, retail outlets and grocery stores throughout southwestern Ontario.

8On Tuesday, 6th February 2018, Mr. Wilson was working the afternoon-evening shift. His office on the main floor provided him with a view of the conveyor belt lanes at the end-of-line area which brought the boxes of liquor products from elsewhere in the warehouse. Each box of liquor product contained a bar code that detailed which conveyor lane, and ultimately which store, the product was destined for. At this particular area of the warehouse, there were five lanes of conveyor belts carrying the liquor products. The warehouse workers at the end of the conveyor belts were assigned to remove the boxes from the lanes and assemble them on shipping pallets. Once the pallets for the individual destinations were completed, they were moved to the shipping area, where they would be loaded onto transport trucks for delivery to the various regional retail stores.

9During this particular afternoon-evening shift, there were three employees covering the five conveyor lanes at this end-of-line area of the warehouse. Among them were John Robbins, the grievor, and Joe Kraemer. Their regular lunch break was scheduled for 7:30 pm. According to Mr. Wilson, all floor employees, including the three employees in this area of the warehouse, are expected to work “buzzer-to-buzzer”. That is, the floor employees are to actively work until the warehouse buzzer sounded at 7:30 pm, indicting the start of the shift break.

10From his office, Mr. Wilson noticed that Mr. Robbins and Mr. Kraemer had left their work stations at 7:27 pm. He left his office and called out to them. After several shouts, he eventually caught their attention, and he told them to return to their work stations until the 7:30 buzzer went. According to him, as they were about to head back, the buzzer went. He testified that, when he had caught up to them, they had already passed the area washroom.

11Mr. Wilson explained that, when he noticed that the two employees were leaving their work station early, he saw that the production light in this work area was still on. This meant that the conveyor lanes continued to carry boxes of liquor product, and – unless these boxes were removed from the belt as they arrived – the boxes following could not move down to the floor conveyor belt. Boxes moving on the conveyor lanes required the employees on the warehouse floor to continuously clear the lanes so that the on-coming product would not back up and cause an obstruction.

12Later that evening, Mr. Wilson wrote an email message to his supervisor, Mark Fletcher. It read:

“Beth [Hansen] and I witnessed John Robbins and Joe Kraemer leaving their work station prior to the 7:30 pm buzzer. We told them to get back to their work station, they turned around and returned. Mark, John has two misuse of company time-out of work area VC’s [verbal counsel]. Joe Kraemer has none. Please issue a LOC [ Letter of Counsel] for John and a VC for Joe.”

13Mr. Wilson testified that he had recommended a Letter of Counsel to Mr. Robbins because he had counselled him on several recent occasions about the importance of staying at his work-station during working hours. He had recommended only a verbal counsel for Mr. Kraemer because he had no prior incidents involving counselling for leaving his work station early. In the end, Mr. Kraemer received a verbal counsel for this incident.

14The following day, 7th February 2018, in response to a request from Mr. Fletcher for additional information respecting Mr. Robbins, Mr. Wilson wrote a more detailed message to him explaining the incident:

In addition to my email yesterday, here are some extra details about the situation after further recollection. Beth and I walked out of the supervisor’s office at about 7:27 pm. We witnessed John Robbins and Joe Kraemer walking down the end of the line heading for lunch early with their coats on. I said to Beth, where are those guys going? I looked down to their work area and saw a light on at lane 1. I called out to both men and they didn’t respond. I escalated my voice and called to them again and they didn’t respond. It wasn’t until the fourth time calling to them and walking briskly towards them that they turned around. I asked them where they were going. John flung his arms up and said the lights were off. I said they are not and that I wanted them back to their work station immediately. This is when the buzzer went and our conversation was cut off.

15On cross-examination, Mr. Wilson stated that he had had a good working relationship with Mr. Robbins when he had returned to work in June 2015. Mr. Wilson found him to have a positive attitude and he was working productively. However, this began to change in 2016, as Mr. Robbins began to accumulate a number of verbal counselling incidents. This work behaviour continued into early 2018. Mr. Wilson testified that he had warned Mr. Robbins in early 2018 that he only had a couple of months to go until his last chance agreement, with its strenuous conditions, expired, so he should be on his best workplace behaviour.

16Mr. Wilson acknowledged that, in his opinion, the Letter of Counsel was a sufficient response to Mr. Robbins’ early departure from work on 6th February. He pointed out that he could only recommend a Letter of Counsel; it was someone else’s decision as to whether to issue one or, indeed, to elevate the response.

17Mr. Wilson noted in cross-examination that other employees did not always work buzzer-to-buzzer. However, he emphasized that Mr. Robbins had a particular problem with focusing on his work tasks, and his productivity had been in decline during his last months at work.

18On re-examination, Mr. Wilson stated that he did not have the authority to discipline an employee, nor was he involved in the discipline process. If an employee under his supervision was experiencing workplace problems, his task was to explain the employer’s expectations to the employee; if this did not correct the situation, he would elevate the issue to one of his managers. He could recommend a course of action, but he could not impose it.

Mark Fletcher

19At the time of the March 2018 incident, Mr. Fletcher was the Afternoon Operations Manager at the London warehouse. He was responsible for the overall operations of the warehouse during the afternoon-evening shift, which included health and safety issues and employee discipline. Michael Wilson reported to him.

20Mr. Fletcher offered a detailed explanation of the operation of liquor product on the conveyor belts. He pointed out that, when the light is on for a specific conveyor lane, the floor employee is required to clear the liquor boxes from the lane as soon as possible. Otherwise, a serious back-up could develop on the lane. This could result in the entire conveyor system shutting down. As well, some liquor boxes might fall off the lane because of the congestion, resulting in product breakage and loss because they are often stored in glass bottles.

21Additionally, as part of its operations-flow supervision system, the warehouse maintains a monitoring procedure to determine how long these lights are on. This assists the warehouse management with assessing the efficiency of product assembly and flow through the warehouse to the delivery doors. If a light is left on over a break time, this would skew the results of the monitoring system. Thus, all employees are required to ensure that the light is off when leaving for a break.

22The issue of the buzzer-to-buzzer policy arose at various management-union meetings. Mr. Fletcher stated that, during a meeting on 25th January 2018, OPSEU had asked for clarification on the standard expectation for employees heeding the buzzer-to-buzzer rule. He pointed to the minutes of the meeting, which stated that: “The Employer expects employees to be reasonable – not to congregate in hallways before buzzer.”

23In his testimony, Mr. Fletcher offered a more explicit meaning: “You must remain at your work area until the buzzer goes.” He testified that, while the machine operators and fork lift drivers in the warehouse would be able to start their break times three to four minutes before the buzzer sounded, end-of-line workers – such as Mr. Robbins – were expected to work until the buzzer went because of the need to clear the liquor boxes from the conveyor belts. He added that there was part of an informal trade-off: the end-of-line workers worked to the buzzer, but they were not expected to be at their work stations at the end-of-break buzzer, but they were required to leave the lunch room at the sound of the buzzer to end the break and head back to their work area.

24When Mr. Fletcher received the 6th February email from Michael Wilson, he asked him for a more detailed report, which was delivered in the subsequent email the following day. He then decided to hold a meeting with Mr. Robbins, and sent him an Investigation Notice, dated 15th February, which expressly stated that he would investigate whether Mr. Robbins’ actions on 6th February amounted to a violation of the Minutes of Settlement from June 2015. The Investigation Notice also mentioned Mr. Robbins’ entitlement to a union representative at the meeting, as per Article 27.3 of the collective agreement. Mr. Fletcher’s Investigation Notice to Mr. Robbins read, in part:

This letter is with respect to an alleged incident that occurred on Tuesday, February 6, 2018 wherein you left your work station prior to the 7:30pm buzzer while a light was on at your lane. I am currently investigating this matter and, in the context of same, will be making a determination as to whether you have violated the Minutes of Settlement dated June 5, 2015 as a result of the above.

Accordingly, you are required to attend a meeting to discuss the matter mentioned above. The meeting has been scheduled as follows:

• Tuesday, February 20, 2018 at 5:45pm in the LRSC Boardroom

You are entitled to union representation in accordance with Article 27.3 of the Collective Agreement as disciplinary action may result. Your OPSEU representative can be reached at the London Region One office [with phone number provided].

25The meeting was held on 20th February. Meeting notes were taken by a manager, Ms. Michelle Farrugia. Mr. Greg Wilson, the president of OPSEU local 164, was present. At the meeting, Mr. Robbins asserted that the light over his area was off all shift, indicating that the boxes of liquor products were not backing up on the conveyor system. He said that he was having a really bad day on 6th February arising from personal difficulties in this life at the time. At the meeting, he declined an offer by management to contact the employee assistance program.

26Mr. Fletcher testified that the senior managers, including Mr. Jim MacPherson, who was at the time the Director at the warehouse, determined that Mr. Robbins’ work attitude was poor and not likely to change. Mr. MacPherson subsequently drafted and delivered the letter of termination to Mr. Robbins, dated 6th March 2018. It reads, in part:

We are writing further to the Investigation Notice (“IN”) issued to you and dated February 15, 2018 in allegation to an alleged incident that occurred on Tuesday, February 6, 2018 wherein it is alleged that you left your work station prior to the 7:30pm buzzer while a light was on at your lane.

During a pre-disciplinary meeting held with you and your union representatives on February 20, 2018, you stated that you could not recall your supervisor speaking to you about being away from your workstation but thought that you were in lane 22 and were on your way up to wash your hands. You also stated that you were having a lot of bad days lately and did not want to talk to anyone or do anything. You were offered EFAP [Employee and Family Assistance Program] but declined, stating that you were not about to call anyone.

Mr. Robbins, during the period of your employment at the LCBO from your start date of June 15, 2015 as outlined in the Minutes of Settlement dated June 5, 2015, there have been several areas of concern in regard to your work performance which have been brought to your attention. In particular, but without limitation, the following concerns have been identified with you:

• Low Work Performance

• Misuse of Company Time – out of work area/not working buzzer to buzzer

• Disrespectful behaviour towards supervisor

You have been coached and counselled on several occasions for your work performance, excessive downtime and being away from your workstation. However, in this regard, and despite our best efforts to coach and assist you and give you opportunities to improve, your overall performance continues to be poor and, as such, we believe disciplinary action is warranted.

As you are aware, and as stated in the Minutes of Settlement dated June 5, 2015, should you engage in conduct that constitutes failure to abide by the requirements of the Minutes of Settlement, including engaging in conduct which is found to justify discipline, such conduct shall result in your discharge from employment for just cause. We have concluded that you engaged in the conduct that is alleged and that such conduct justifies discipline. Accordingly, your employment is terminated effective immediately. In the alternative, given your discipline record the LCBO takes the position that your employment is properly terminated for just cause on that basis as well.

Please be advised that the LCBO reserves the right to rely on further information in support of the termination of your employment.

27Earlier, on 12th January 2018, Mr. Fletcher had issued a disciplinary letter of reprimand to Mr. Robbins. At the time, he was working as a floor-picker, where he scanned the liquor product with a scanning gun. The work activity involved in this position was quantitatively measurable. The letter expressed concern about his low performance and his elevated inactivity time. (This letter is found in Para. 49 of this award).

28Sometime shortly after this January letter was issued to Mr. Robbins, he was moved to an end-of-line position, which was the job he held at the time of the February incident and his March termination. The position was not capable of being performance-measured to the same degree as the floor-picker job.

29In cross-examination, Mr. Fletcher stated that he could not recall saying at the 20th February meeting whether Mr. Robbins’ employment at the LCBO was in jeopardy because of the incident on 6th February. He also said that he could not verify when, and how many times, the light was on in the warehouse area where Mr. Robbins was working on the day and shift in question. He could verify from the available metrics that it was on for seven minutes during that shift.

30Mr. Gutman asked Mr. Fletcher about his efforts to reach out to Mr. Robbins regarding his work performance concerns. Mr. Fletcher testified that he had informally approached Mr. Robbins on several occasions to ask him why he was less engaged with work and whether he might benefit from the LCBO’s Employee and Family Assistance Program. On those occasions, Mr. Robbins said that he appreciated the offer, but he was not interested. Mr. Fletcher said that, with Mr. Robbins’ continuing poor work performance and his evident disinterest in working with either Mr. Wilson or Mr. Fletcher to correct it, this left the Employer with no other choice but to use disciplinary measures as its only remaining tool.

31On re-direct, Mr. Fletcher said that he would have had approximately 5-6 undocumented conversations with Mr. Robbins about correcting his work performance in the months leading up to the 6th February incident.

The Union

Greg Wilson

32Greg Wilson is the president of OPSEU Local 164. He has been employed by the LCBO for 16 years. He is not related to Michael Wilson.

33Mr. Wilson explained that the employer’s buzzer-to-buzzer policy stated that, as a rule, the warehouse employees were to work until the break buzzer sounded. He said that, in his view, this was more of a policy than a practice, as it had been enforced inconsistently by the LCBO during his employment service at the warehouse. The union membership had expressed concerns about the inconsistency in the application of the buzzer-to-buzzer policy. Accordingly, the issue was discussed at the labour-management meeting on 25th January 2018.

34At the meeting, Mr. Wilson said that Mr. MacPherson had emphasized that, as a rule, employees were to work until the break buzzer sounded. Mr. Wilson testified that he pointed out to management that the warehouse is very large, and some employees are quite a distance from the break room. He said that Mr. MacPherson replied that he wanted employees to be reasonable in their compliance with the policy and not to congregate in the hallway prior to the sounding of the break buzzer. Mr. Wilson stated that he had agreed at the meeting that it was not reasonable for employees to congregate in the hallway prior to the buzzer sounding. He understood that the strictness of the buzzer-to-buzzer policy fluctuated depending on the season: when the warehouse was busy in the May to December months, the policy might be more strictly applied than when workloads are lower.

35In his testimony, Mr. Wilson agreed that, when the light is on over the conveyor belt, this means that the liquor boxes are backing up on the belt, and would indicate that no further product can move along the line.

36Responding to the question as to how often management took action against employees for breaching the buzzer-to-buzzer policy, Mr. Wilson said that most of the interventions by management were verbal. Occasionally, it resulted in a letter of counsel.

37Representing the union, Mr. Wilson attended the 20th February 2018 meeting initiated by management to address the work performance issues with Mr. Robbins. He recalled that the meeting discussed discipline and the 2015 Minutes of Settlement. Termination was not mentioned. Mr. Robbins spoke about having bad days at work. Management offered to connect him with the Employee and Family Assistance Program, which he declined.

38On cross-examination, Mr. Cogswell put the proposition to Mr. Wilson that it would not make sense that employees at the end of the line – such as the area where Mr. Robbins was assigned – could leave their work station before the break buzzer sounded if the conveyor lanes continued to run right up to the buzzer. Mr. Wilson stated that, if the light was off in the area just before the buzzer sounded, it would not be a problem to leave a little early. When pressed, Mr. Wilson acknowledged that a big batch of liquor products could be on its way even while the light was off.

39Asked about the 20th February meeting with management and Mr. Robbins, Mr. Wilson stated that he asked management: “How is this [Mr. Robbins’ early leaving] a violation of the Minutes of Settlement?” Ms. Michelle Farrugia replied that his actions could be disciplinary, as per the Minutes.

40Mr. Wilson agreed with counsel for the LCBO that Mr. Robbins did not apologize for leaving his work station early at the 20th February management meeting.

41On re-direct examination, Mr. Wilson stated that he did not think that termination would be a possible outcome of the 20th February meeting, as it had not been expressly mentioned in the Investigation Notice of 15th February. Nor was termination expressly raised at the meeting. He assumed, instead, that Mr. Robbins might be offered help to correct his behaviour.

John Robbins

42Mr. Robbins, the grievor, first started work at the LCBO in May 2011. He progressed from a fixed term status to becoming a seasonal worker in 2012. He was terminated in 2013 for workplace misconduct, but reinstated in June 2015 via the Minutes of Settlement. The Minutes, which acted as a last chance agreement, were to expire in June 2018.

43Mr. Robbins said that, when he returned to work at the warehouse in June 2015, he had grown up in terms of maturity and was happy to be back working at the LCBO. However, by the summer of 2017, his personal relationship with his partner was falling apart, and he moved out of the home that he shared with her and their two children. At times, he was reduced to living in his truck, or couch-surfing with friends. He had no family in the vicinity. This time in his life left him confused and depressed, and his work performance slumped significantly.

44Mr. Robbins acknowledged that Michael Wilson had tried to assist him during this period. While he was willing to confide in Michael Wilson, he did not accept his advice to seek personal counselling through the EFA program. He preferred to keep his own counsel, and to try to shoulder his way through his troubles.

45On 6th February 2018, Mr. Robbins testified that he was having a ‘horrible’ day. As the buzzer time approached for the 7:30 pm lunch break, he was anxious to leave his work station to wash his hands before eating, and then have a smoke break by himself. He stated that he left his work station at 7:28 pm to fetch his coat and to then head to the cafeteria with his workmate Joe Kraemer. He said that, at that time, his lanes were empty of any liquor boxes and the light was off. Shortly after the two of them walked past Michael Wilson’s office, Mr. Wilson came running up behind them. However, he did not recall what Mr. Wilson said to him. Part way through their brief conversation, the 7:30 pm buzzer sounded, and Mr. Robbins and Mr. Kraemer then headed off for their break. He said that it was his understanding that, when the break buzzer went, employees did not have to remain behind to clear any back-log of liquor products on the conveyor belts.

46At the time, Mr. Robbins said that he did not think the interaction with Mr. Wilson amounted to a problem. It was only later, when he received the 15th February Investigation Notice, that he realized that management took a different view of the incident. His concern increased when he realized that Mr. Kraemer did not receive a similar Notice. By this time, he said, he understood that the 2015 Minutes of Settlement were specifically mentioned in the Investigation Notice, and his job could be in jeopardy.

47When specifically asked about the buzzer-to-buzzer policy, Mr. Robbins stated that he knew that the work shift started with the buzzer, and one was to work until the buzzer sounded for a break time or the end of a shift.

48On cross-examination, Mr. Robbins stated that he understood the terms of the last chance agreement in the 2015 Minutes of Settlement, including the provision that he could be terminated. He acknowledged receiving a non-disciplinary letter, dated 4th January 2018, respecting a low performance percentage on high inactivity time respecting his previous work day. He received a second letter, dated 10th January 2018, summoning him to a meeting with management on 11th January regarding his inactivity time and his low performance. The letter expressly stated that the purpose of the meeting on 11th January was to make a determination “…whether disciplinary action will be taken against you…”

49As a result of this second letter, he was called into a meeting on 11th January. Following this meeting, Mr. Fletcher wrote a letter, dated 12th January 2018, to Mr. Robbins, which read in part:

This letter is further to the Investigation Notice (“IN”) issued to you and dated January 10, 2018, regarding both your inactivity time and low performance on January 8, 2018. On this day you had a total inactivity time of 83 minutes and a performance percentage of 60%.

During a meeting held with you and your union representative on January 11, 2018 when asked if there was anything specific that was causing you to have large amounts of downtime throughout the day, you stated that you break a lot of ropes and that people block your way when they are standing around the podium. You also stated that you could not recall why you had approximately 20 minutes of downtime around the lunch break.

We have had several conversations regarding your low performance and your inability to meet the Engineered Labour Standards that have been implemented at the London Retail Services Centre. We have tried to assist you in meeting these standards and you were issued a letter of counsel dated October 20, 2017.

After considering all of the information available to me, I have concluded that your scanner activity continues to be below the standards set out by the LCBO. Consider this a letter of reprimand.

Mr. Robbins, it is the LCBO’s expectation that you make every effort going forward to meet the LCBO’s standards. Failure to follow these requirements may result in further disciplinary action, up to and including termination.

We sincerely hope that you are committed to improving your performance. If you have any concerns that you feel may hinder your ability to follow these requirements, please let us know and we will try to assist you in whatever way possible.

This disciplinary letter of reprimand was not grieved.

50Mr. Cogswell, counsel for the LCBO, presented Mr. Robbins with a list of occasions since April 2016 when his managers had verbally counselled him (14 occasions) and also issued a Letter of Counsel (two occasions), all regarding various work behaviour or work performance concerns. None of these incidents were disciplinary. Mr. Robbins neither recalled, nor disputed, any of the specific incidents on the list that he was asked about. He did acknowledge that he knew that the LCBO wanted him to improve his workplace performance. He thought that his work performance had been improving after the 12th January letter.

51On 6th February 2018, Mr. Robbins accepted that he had knowingly left his work station several minutes before the 7:30 pm break buzzer had sounded. He knew that he was required to work right up until the buzzer sounded. He also accepted that, if the light was on, employees were to help the other employees in the work area to clear any backlog in the flow of liquor product on the conveyor belts. He said that he left his station early because he was feeling messed up and wanted to be by himself during the break. Mr. Robbins recalled nothing of importance in his brief conversation with Michael Wilson when he caught up to him on his way to his break. He disputed Mr. Wilson’s testimony that Mr. Wilson continued to talk with him after the buzzer sounded. He also disputed Mr. Wilson’s testimony that the light was on in his work area when he left for his break. However, he accepted that, even if the light is off, there were tasks to perform in his work area.

52Mr. Robbins acknowledged that he had not apologized at the 20th February meeting for leaving his work station early. He stated at the hearing that he regretted his actions on that day.

53On re-direct-examination, he said that, had Michael Wilson asked him to return to his work station to wait for the sounding of the buzzer, he would have done so.

Argument

Employer Argument

54Mr. Cogswell, for the LCBO, submitted that the accumulated evidence and facts support the decision of the LCBO to terminate Mr. Robbins. He emphasized that last chance agreements are an important industrial relations tool. They allow employees on the disciplinary edge to be given a second chance to prove they can work productively. But the flip side of the coin is that the terms of these agreements must be upheld to the letter should the employee breach the conditions during the active period of the last chance agreement. In this present case, two sophisticated industrial relations parties had negotiated a carefully-drafted agreement in 2015, and its terms must be applied should I find that Mr. Robbins had breached his undertaking.

55Leaving a work station three minutes early does warrant some discipline in these circumstances, argued Mr. Cogswell. Mr. Robbins knew that he was to work to the buzzer, he knew he was leaving early, and he offered a shifting range of reasons as to why he left early, none of them which justified his departure. Although the offense may seem minor on the scales of industrial discipline, it makes logical sense when measured against the existing discipline already on Mr. Robbins’ record from January 2018, on top of the terms of the last chance agreement. Between the last chance agreement and the January discipline, this established the fact that his employment with the LCBO was already in jeopardy. Additionally, the LCBO had previously counselled and coached Mr. Robbins on numerous occasions on a non-disciplinary basis about his work habits and his performance failings.

56Mr. Cogswell pointed to the active outreach to Mr. Robbins by both Michael Wilson and Mark Fletcher. It was uncontested, he maintained, that Mr. Wilson in particular tried to give Mr. Robbins every opportunity to succeed, he counselled him on numerous occasions to correct his work performance, he offered him the opportunity to use the employee assistance program, and he reminded Mr. Robbins of the overhanging terms of his last chance agreement. In the face of all of these offers of supports, Mr. Robbins refused to help himself.

57Mr. Cogswell relied upon the following caselaw: IUOE, Local 904 and Atlantic Minerals Ltd (LaSaga), unreported (26th March 2018) (Newfoundland) (Oakley); Ontario (Ministry of Community Safety and Correctional Services) and OPSEU (Turpin), 2016 CarswellOnt 13932 (Briggs); Transdev Services (Canada) Inc. and ATU, Local 113 (X), 2016 CarswellOnt 4004 (Hayes); OPSEU v. Ontario (Liquor Control Board of Ontario), 2011 CanLII 49509 (R. Brown); Ontario Liquor Board Employees’ Union v. Ontario (Liquor Control Board of Ontario) (Braybrook), 2002 CanLII 45762 (Dissanayake); Walbar Canada v. USWA, Local 9236 (Trinh), 1997 CarswellOnt 5653 (Marcotte); and Owens-Corning (Canada) Inc. and UNITE, Local 1305, 1997 CarswellOnt 6838 (Whitehead).

Union Argument

58Mr. Gutman, for OPSEU, presented several arguments to support the reinstatement of Mr. Robbins to his employment, and for him to be made whole. First, he submitted that the LCBO had not met the conditions in the last chance agreement of June 2015. Specifically, he pointed to the stated conditions in Articles 8(b) and 8(d) of the Minutes of Settlement:

8(b) The Grievor shall not, during working hours or otherwise, engage in any conduct which constitutes insubordination;

8(d) The Grievor shall not, during working hours or otherwise, engage in any conduct which is found to justify discipline (in any form) in the opinion of an arbitrator.

Mr. Gutman argued that the incident of 6th February 2018 that directly led to Mr. Robbins’ dismissal was not culpable, it was not insubordination, and it would not justify discipline in the eyes of an arbitrator. Therefore, the terms of the last chance agreement should not have been triggered, and Mr. Robbins’ termination was void.

59Second, Mr. Gutman maintained that for Mr. Robbins to leave his work area three minutes early for a lunch break was a de minimis event in the eyes of arbitral law, unworthy of discipline and incapable of triggering the conditions in the last chance agreement. He noted that Mr. Kraemer was treated differently – i.e., given a non-disciplinary verbal warning – for the very same offense. No major transgression was committed by Mr. Robbins on that date, but he was deemed to be a repeat offender by the employer, and faced industrial capital punishment for this truly minor incident. Employers can impose greater discipline among employees for the same offense, but only with justification, which was lacking in this case.

60Mr. Gutman’s third argument was that Mr. Robbins’ termination was void ab initio, on the basis that Michael Wilson, who was the front-line manager that dealt with the 6th February incident, testified that he felt that there should have been a letter of caution issued to Mr. Robbins, rather than the termination letter. No evidence was presented by the LCBO, he argued, as to the real purpose of the meeting on 20th February, least of all in the 15th February Investigation Notice. As well, he asked for an adverse inference to be drawn from the fact that Mr. MacPherson – who made the ultimate decision to terminate Mr. Robbins as Director of the London Retail Services Centre, and who was no longer employed by the LCBO at the time of the arbitration hearing – was not called as a witness during the arbitration proceedings. In sum, Mr. Gutman submitted that, because the LCBO had taken the various non-disciplinary verbal cautions and non-disciplinary letters of counsel into account when it made its decision to terminate Mr. Robbins, the dismissal was void ab initio.

61Finally, the union argued that the particular phrasing of Article 8(d) in the 2015 Minutes of Settlement – “engage in any conduct which is found to justify discipline (in any form) in the opinion of an arbitrator” – provides me with sufficient flexibility and jurisdiction to mitigate Mr. Robbins’ dismissal, even if I should find that he committed an offense worthy of some discipline. Mr. Gutman submitted that the wording of this Article, taken together with the Section 48(17) of the Ontario Labour Relations Act, 1995 and Article 7(6) of the collective agreement, allow me to substitute a termination penalty with a lesser consequence for Mr. Robbins.

62In support of his successive arguments, Mr. Gutman relied upon the following authorities: OPSEU and Ontario (Liquor Control Board of Ontario) (Butters) (2018), 293 LAC (4th) 421 (Carrier); Ontario (Metrolinx – Go Transit) v ATU, Local 1587, 2018 ONSC 2342; Municipality of Chatham/Kent and CUPE, Local 12.1 (Voskamp) (Unreported, 17 April 2009) (McLaren); ADM/Agri Industrial Ltd and UFCW, Local 278W (Jahn) (Unreported, 16 February 2006) (Brandt); Dimplex North America Ltd and USWA, Local 8698 (Hamill) (2006), 2006 CanLII 93300 (ON LA), 151 LAC (4th) 443 (HD Brown); Alsco Uniform & Linen Services and RWU, Local 580 (Unreported, 15 May 2003) (Germaine); Ontario Store Fixtures Inc., Wood Division and USWA, Local 5338 (Abdilla), 2001 CarswellOnt 2636 (Murray); Ontario Liquor Board Employees Union and Ontario (Liquor Control Board of Ontario (Pedneault) (Grievance Settlement Board, 8 August 2000) (Briggs); Canada Post and CUPW (Seymour) (1992), 1992 CanLII 14471 (CA LA), 25 LAC (4th) 137 (Shime); and BFCSD, Local 304 and Molson’s Brewery (Ontario) Ltd, 1982 CarswellOnt 3008 (ONSC).

Employer Reply

63Mr. Cogswell submitted that I do have jurisdiction under the last chance agreement to determine whether Mr. Robbins’ actions amounted to discipline, and therefore justified the termination. He opposed the Union’s arguments that Mr. Robbins could be in breach of Article 8 of the last chance agreement but still not violate Article 9 of the agreement.

64As well, the Employer maintained that nothing unusual happened regarding the reporting sequence of the 6th February incident. Michael Wilson reported the issue to Mr. Fletcher, and provided more information through a more detailed email when requested by him. In turn, Mr. Fletcher reported the issue to Mr. MacPherson, the ultimate decision-maker at the warehouse on industrial relations matters, and recommended discipline for Mr. Robbins. What Mr. Fletcher felt or thought was beside the question. No adverse inference should be taken from the fact that Mr. MacPherson did not appear as a witness at the arbitration hearing. All of the relevant information pertaining to the incident and the subsequent decision to termination Mr. Robbins was presented in evidence, and Mr. MacPherson’s presence at the arbitration hearing was not required to understand or justify the decision.

65Finally, Mr. Cogswell addressed the Union’s arguments regarding void ab initio and de minimis. The 20th February meeting was designated in advance as a meeting to discuss the 6th February incident, with specific reference to the Minutes of Settlement. Mr. Robbins was expressly invited in the 15th February 2018 Investigation Notice to bring a union representative with him. This followed the requirements as laid out in Article 27.3 of the collective agreement. And regarding the de minimus argument, Mr. Cogswell submitted that it is not applicable: Mr. Robbins intentionally left his work area early, with the light still on, knowing the importance of the buzzer-to-buzzer rule. This conduct is sufficient to attract some discipline in the circumstances and, accordingly, trigger the last chance consequences in the Minutes of Settlement.

Decision and Reasons

66While the parties called four witnesses and presented a number of documents into evidence, the pertinent facts of this case are largely uncontested. Primarily, this is thanks to the comprehensive agreed statement of facts presented by the parties. I have kept in mind the legal principle that the employer bears the onus in a discipline matter to establish its case on the balance of probabilities, based on clear, cogent and convincing evidence: Atlantic Minerals, supra, at paras. 52-53. As such, I have carefully weighed all of the evidence and arguments presented to me.

Credibility

67One pertinent fact that remains in dispute is whether the light in the working area of the five conveyor lanes was on or not when Mr. Robbins left early for his evening lunch break. Leaving the work area when the light was on meant that liquor product boxes were continuing to move on the conveyor lane and these boxes were backing up, or could be backing up, thereby impeding the flow of product to the assembly area where the liquor boxes were placed on pallets for packing and shipping. It would also risk product damage. Michael Wilson, the supervisor, testified that the light was on when he saw Mr. Robbins leaving at 7:27 pm on 6th February 2018. Mr. Robbins, in his testimony, stated that the light was off and the lanes were empty when he and Mr. Kraemer left early for their break.

68I prefer Michael Wilson’s evidence on this matter. I found his evidence to be credible throughout. In particular, he noted that the light was on in his 7th February email to Mr. Fletcher, written the day after the event. In testimony, his recollection of the events on 6th February was clear, consistent and unshaken. In contrast, Mr. Robbin’s testimony respecting the incident on 6th February was lacking in detail. It was also inconsistent, particularly with his shifting explanation for why he left his work station early: first, it was to wash his hands, then because he was having a bad day. The uncontested evidence was that he and Mr. Kraemer stopped after Mr. Wilson had been calling to them after they had passed the area washroom, which would belie one of Mr. Robbins’s explanations that he left his work station early to wash his hands. In deciding this issue, I have applied the credibility analysis found in Faryna v. Chorny, 1951 CanLII 252 (BC CA), [1952] 2 D.L.R. 354 (BCCA).

Adverse Inference

69Another evidentiary contested issue is adverse inference. The Union argued that the Employer’s decision not to call Mr. MacPherson, the director of the LCBO warehouse at the time, as a witness should result in an adverse inference being drawn. In support of its position, it relied upon two rulings. In Dimplex North America Ltd. (supra), Arbitrator H.D. Brown found that the employer’s failure to call the supervisor who had witnessed the incident gave rise to an adverse inference to be drawn that his testimony would not have supported its position in this matter. The only evidence that the employer had advanced was from a manager who had no direct involvement in the incident. Similarly, in Canada Post (supra), Arbitrator Shime ruled that the employer’s decision not to call a supervisor who had witnessed an assault on a picket line that was at the heart of the discipline led him to draw the inference that the calling of the supervisor would have exposed facts which would have been unfavourable to the employer.

70In our case, there is no adverse inference to be drawn. Mr. MacPherson made the final decision to terminate Mr. Robbins, but it was based primarily upon the information provided to him by Michael Wilson’s direct involvement in the incident on 6th February. Michael Wilson appeared as a witness at our arbitration hearing, and gave testimony respecting the incident that the Employer is relying upon to justify its termination decision. As well, Mr. McPherson’s decision was shaped by Mr. Fletcher’s input, who also gave testimony at the arbitration hearing. Mr. MacPherson’s testimony, had it been offered, would have addressed the termination letter – which speaks for itself – but it does not appear that his testimony would have added anything of substance to the primary facts dealing with the incident itself. This is distinguishable from the rulings in Dimplex and Canada Post, which both hinge upon the non-appearance of supervisors at the arbitration hearing who were direct eye-witnesses to the incidents which had given rise to the discipline.

Leaving the work area early – was this a disciplinable incident?

71The LCBO defended its position to discipline Mr. Robbins for leaving work three minutes early on 6th February, which then lead to the triggering of the terms of the last chance agreement in the 2015 Minutes of Settlement. OPSEU argued that this incident should not amount to discipline, and therefore the Minutes were wrongly triggered by the employer. In the alternative, Mr. Gutman submitted that Mr. Robbins was disciplined for leaving his work area early, while Mr. Kraemer received only received a non-disciplinary verbal warning. Accordingly, argued the Union, the imposition of differential discipline for the same workplace offence should nullify the harsher consequences suffered by Mr. Robbins.

72In my view, the LCBO was within its management rights to impose discipline on Mr. Robbins for leaving his work area three minutes early on the day in question. The evidence presented to me demonstrated that the Employer had been actively involved, beginning in 2016, to address its concerns directly to Mr. Robbins about his faltering work performance. From 2016 to early 2018, it took a number of non-disciplinary steps to correct and improve his workplace performance and conduct, such as verbal counselling and coaching, as well as several letters of counsel. Subsequently, the LCBO issued a disciplinary letter of reprimand on 12th January 2018 to Mr. Robbins regarding his work performance. This was not grieved. Standing all alone, the fact that Mr. Robbins was disciplined for leaving his work area three minutes early would not ordinarily have attracted discipline. But taking all of the surrounding industrial relations factors into account – including his recent disciplinary record, and the background fact that the employer had earlier provided non-disciplinarily coaching steps – the LCBO was justified in imposing discipline for the incident on 6th February. Indeed, leaving work early – in the face of a management policy which required employees in the warehouse areas where Mr. Robbins was assigned to work to the buzzer, and the absence of any persuasive reason for doing so – amounts to insubordination, a disciplinable offense, particularly when it occurs in the shadow of a last chance agreement: Walbar Canada, supra.

73OPSEU raised the argument that the buzzer-to-buzzer policy or rule was not always rigourously followed or consistently enforced. The evidence before me is that the parties met in January 2018 to discuss the buzzer-to-buzzer rule, and the LCBO explained that it was to be followed in a reasonable manner. As per the KVP principle, I am mindful that the policies in a workplace must be consistently applied, well-known to the workforce, reasonable, clear and unequivocal. No employee should be in the position where she or he could have been reasonably led to believe that adherence to a rule or policy was unnecessary and then later be legitimately surprised when the employer decided to impose discipline for lax behaviour. However, I am also mindful of the fact that, when there is arbitral review, there must be some degree of common sense flexibility in the application of workplace rules and policies. As Arbitrator Brandt stated in ADM/Agri Industries, supra:

It was argued by the union that the rules lacked clarity or consistency in their enforcement, since in the evidence of both Mr. Brohman and Mr. McManus, it was conceded that there were circumstances, such as leaving the work station to go to the toilet, where it was understood that employees would not be required to adhere strictly to the letter of the rile and seek the permission of their supervisor before leaving. In my view, there is little merit in this argument. Clearly, a set of rules cannot envisage every possible situation and must admit of some flexibility in their interpretation and application and it cannot be argued that a rule is ambiguous or inconsistency enforced simply because in some instances some relaxation of the rule may be appropriate. [Emphasis added]

74The LCBO had enacted a buzzer-to-buzzer policy respecting the break times for its warehouse employees. For employees in work areas receiving boxes of liquor product, where Mr. Robbins was assigned, this meant that they were to work until the break buzzer sounded, and then leave the lunch room to head back to work when the end-of-break buzzer sounded. This policy had added importance when the conveyor light was on, because of potential problems presented by the continuing flow of liquor product on the conveyor lanes. As I stated above, I have accepted Michael Wilson’s evidence that the conveyor light was on at the relevant time. Mr. Robbins acknowledged that he was familiar with the buzzer-to-buzzer policy, and he presented no persuasive work reason to justify why he decided to leave early. Before the arbitration hearing, he had offered no apology or remorse for leaving early.

75I have taken close note of the evidence that Michael Wilson’s 6th February email to Mr. Fletcher asked him to issue a non-disciplinary letter of counsel to Mr. Robbins and a non-disciplinary verbal counsel to Mr. Kraemer. Michael Wilson did not view the 6th February incident regarding Mr. Robbins as sufficiently serious to attract discipline. If the only issue before us was the fact that Mr. Robbins had left his work area three minutes early, I could agree that discipline might not have been justified. In such a case, Mr. Robbins would have deserved either the same outcome as Mr. Kraemer – a verbal counsel – or a letter of counsel, given the previous attempts by the LCBO to coach him on its expectations of his work performance. The difference lies in the recent discipline imposed upon Mr. Robbins in January, the direct warning in the January disciplinary letter that future discipline may result in termination and the prevailing condition in the 2015 Minutes of Settlement respecting the stark consequences of accumulating a discipline record. As well, I note that, in his testimony, Michael Wilson stated that he did not have the authority to impose discipline, nor was he involved in the disciplinary processes involving Mr. Robbins either in January or February. His recommendation is worthy of attention, but it is not ultimately decisive.

76As well, I have carefully considered the Union’s argument that the LCBO treated Mr. Robbins and Mr. Kraemer differently for engaging in the same behaviour by leaving work three minutes early on 6th February while the conveyor light was on. The Employer’s unchallenged evidence – stated in the 6th February email from Michael Wilson to Mark Fletcher – was that Mr. Kraemer had no prior problematic matters of concern in his employment record, unlike Mr. Robbins. The rule in Canadian labour relations is that identical work misconduct by two or more employees should attract the same penalty, unless an employee’s prior work record, length of service or different mitigating circumstances can justify a differential disciplinary response: British Columbia Transit and ICTU, Local 11, [1996] BCCAAA No. 161 (Munroe). In this case, the differences in the employment records of Mr. Robbins and Mr. Kraemer justify the differential treatment, which distinguishes this case from ALSCO Uniform & Linen Services, supra.

77In coming to these findings, I am mindful that, prior to the discipline imposed upon Mr. Robbins in January and again in March 2018, the LCBO had attempted over the best part of two years to coach and counsel Mr. Robbins with its various menu of non-disciplinary tools. This is commendable, and part of the modern industrial relations process to ensure that employees clearly understand the workplace expectations of the employer. To be clear, non-disciplinary steps taken by employers are not grievable and consequently do not form any part of an employee’s disciplinary record. When an employer’s non-disciplinary efforts to shape and correct an employer’s workplace conduct or performance are considered in a subsequent discipline grievance, these efforts are not part of the progressive disciplinary foundation, but they can be used in the limited fashion to establish that the employer had taken reasonable counselling steps to make the employee aware of his or her shortcomings before turning to the blunter tools of discipline: Ontario (Ministry of Community, Family and Children’s Services) and OPSEU (Barillari), 2004 CarswellOnt 10665 (Dissanayake).

The De Minimis Rule and Last Chance Agreements

78As an alternative argument, the Union submitted that, even if the incident rises to the seriousness of attracting discipline, the exceptionally minor nature of the workplace offence – leaving the work area three minutes early – amounts to a de minimis event that should not trigger the significant consequences cascading from the 2015 Minutes of Settlement. In support of his argument, Mr. Gutman relied upon Liquor Control Board of Ontario (Butters) (Carrier, 2018), supra. In reply, Mr. Cogswell relied upon Ontario Liquor Board Employees’ Union v. Ontario (Liquor Control Board of Ontario) (Braybrook) (Dissanayake, 2002), supra.

79The de minimis rule derives from the long-standing equitable rule in law, known in its full form as de minimis non curat lex: the law does not pay attention to trivialities. The meaning of the rule is that minor or insignificant breaches of the law or a governing rule should not trigger the consequences of the violation. This rule stands for the application of common sense in the appropriate circumstances, and it remains a living rule in modern Canadian labour law: Liquor Control Board of Ontario (Carrier, 2018), supra, at paras. 53-56.

80This issue here is whether – in light of the relevant considerations that include the prior non-disciplinary coaching efforts, the January 2018 discipline and the terms of the 2015 Minutes of Settlement – the fact that the LCBO imposed discipline on Mr. Robbins for leaving his work area three minutes early, and then using that discipline to trigger his termination, should be negated because of the de minimis rule. The 2018 Liquor Control Board of Ontario decision of Arbitrator Carrier, relied upon by OPSEU, is of limited assistance to its argument. This case revolves around the issue of managers performing bargaining unit work on an infrequent basis over the course of six months, which was said to breach a letter of understanding between management and the union. Arbitrator Carrier ruled that this was an appropriate occasion to apply the de minimis rule because the bargaining unit work performed by the manager was brief, spontaneous and occasional, and was done in good faith. I am mindful of the role that the de minimis rule plays in Canadian labour law, but because this decision does not involve a matter of discipline, it is not on all fours with our case.

81More pertinent to our case is the 2002 Liquor Control Board of Ontario ruling by Vice Chair Dissanayake. This involved a grievor who was terminated for being absent from work for the 11th time within the 2001 calendar year. The grievor was subject to a last chance agreement, which stipulated that he could not be absent from work within the 2001 calendar year on more than 10 occasions. If he exceeded the 10 day ceiling, stipulated the agreement, he could be subject to termination. One of the terms of the last chance agreement stated that:

The Parties agree that an arbitrator or arbitration board of the Grievance Settlement Board hearing any grievance with respect to the discharge shall not have jurisdiction to substitute the penalty other than in a case when the infraction is very minor and disproportionate to the discharge, taking into account the Grievor’s record. [Emphasis added]

This last chance agreement actually built in a ‘de minimis’ provision, which would make the terms more liberal than the conditions in Mr. Robbins’ agreement. The union in the 2002 LCBO ruling argued that the grievor’s infraction – his 11th day of absence, which had been caused by a debilitating cold, sore throat and diarrhea that was supported by a doctor’s note – amounted to an infraction that was “very minor and disproportionate to the discharge”, and therefore meet the de minimis standard negotiated by the parties in the last chance agreement.

82Vice Chair Dissanayake was not persuaded. He ruled that, in these circumstances, it would be inappropriate for him to intervene, and dismissed the grievance. As he explained:

The exceeding of the 10 day limit was not a “very minor” violation, but a violation of a substantive term, for which the parties had specified the consequences of termination. For me to intervene would be tantamount to amending the 10 day limit to a higher number. In considering whether an infraction in “very minor and disproportionate to discharge”, the parties explicitly envisage that I would take into account “the grievor’s record”.

In my decision of May 17, 2000, I noted the infractions attributed to the grievor at that time and noted that the employer had shown leniency in treating him. That, together with the last chance agreement entered into, should have put the grievor clearly on notice that his employment with the employer was precariously hanging by a thread and that strict compliance with the conditions he had agreed to was required. Unfortunately, he failed to live up to the undertaking he made. In the circumstances, I do not consider it appropriate for me to exercise my jurisdiction to interfere with the penalty imposed by the employer. [Emphasis added]

83In our case, there is no negotiated ‘de minimis’ provision in the last chance agreement. While the rule is generally applicable in Canadian labour arbitration cases, it must be subordinate to the actual language of the collective agreement or, as in our case, the last chance agreement. The wording of the June 2015 last chance agreement is specific, as well as being narrower than the language of the last chance agreement in the Dissanayake decision:

8. As a condition of the Grievor’s reinstatement, the Grievor shall comply with the following:

a. …

b. The Grievor shall not, during working hours or otherwise, engage in any conduct which constitutes insubordination;

c. …

d. The Grievor shall not, during working hours or otherwise, engage in any conduct which is found to justify discipline (in any form) in the opinion of an arbitrator.

The plain reading of these terms is that Mr. Robbins was prohibited from engaging in any work conduct which would amount to insubordination in any way. Nor could he engage in any conduct that would be deemed to be discipline in any form. On the later stipulation, an arbitrator would have to be satisfied that the alleged conduct amounted to discipline, within the realm of contemporary industrial relations law.

84For the reasons already stated, I am satisfied that these standards in the last chance agreement have been met. I agree with the reasoning by Vice Chair Dissanayake in his 2002 Liquor Control Board of Ontario ruling that the terms of a last chance agreement must be applied as the parties intended them to be, based on the applicable rules of interpretation. The parties in our case – both of whom are sophisticated industrial relations players – clearly intended for the strict terms of the last chance agreement to apply if Mr. Robbins was insubordinate or had engaged “in any conduct which is found to justify discipline (in any form) in the opinion of an arbitrator”. The repeated use of the word “any” in this stipulation allows for only a very constricted use of industrial relations discretion by an arbitrator. Once a determination that a disciplinary act has occurred, an arbitrator is bound to enforce the terms of the last chance agreement. As well, Mr. Robbins was aware of the precariousness of his employment situation, both from the express terms of the 2015 last chance agreement, the warning laid out in the January 2018 disciplinary letter of reprimand, and the notice in the 15th February letter that the last chance agreement would be in play.

85As part of my consideration of this argument, it is important to note the centrality of last chance agreements in the modern Canadian unionized workplace. Giving full and fair effect to last chance agreements has been well-stated by Arbitrator Louisa Davie in Standard Products (Canada) Ltd and CAW (1996), 1996 CanLII 20312 (ON LA), 56 LAC (4th) 88:

Here the parties, the employer and the union and the grievor, made a bargain and each should be held to it. If arbitrators do not uphold or enforce “last chance” agreements, parties would be discouraged from resolving matters and agreeing upon conditions which generally reflect prevailing arbitral jurisprudence and the specific circumstances of an individual case… Arbitrators are generally reluctant to subject “last chance” agreements to further arbitral review. This is particularly true in circumstances such as the present where the conditions upon which the grievor was reinstated are both reasonable and fair. [Emphasis added]

86In ADM/Agri Industries Ltd., supra, Arbitrator Gregory Brandt, quoting from other rulings, stated the following:

Although such [last chance] agreements may often seem harsh on their face, it is well established in the case law that as a matter of sound labour relations policy they should be enforced. Thus, in Lafarge Canada Inc. (1989), 1989 CanLII 9249 (ON LA), 7 L.A.C. (4th) 229, Arbitrator Brown stated that it “would be destructive to negotiated settlements in future cases if arbitrators relieved one or other party from the conditions of negotiated settlements however stringent or harsh those conditions might subsequently be.” Similarly, Arbitrator Bendel, in Camco Inc. (2000), 2000 CanLII 50194 (ON LA), 91 L.A.C. (4th) 346, a case in which it was noted that the grievor came close to meeting the productivity targets that had been set for him under a last chance agreement, noted that “it is important to effective labour relations that parties be able to reply on settlements they have reached with arbitrators injecting their own sense of what is fair and reasonable” and that, although it may have been open to the company to overlook this violation, he as arbitrator “did not have that discretion.”

87Similarly, Arbitrator David Whitehead accepted this approach to last chance agreements in Owens-Corning (Canada) Inc., supra., where he said that:

…an arbitrator’s jurisdiction is limited when enforcing “last chance” agreements which provide employers with an automatic right to terminate if specified culpable behaviour has been proved…I am persuaded that my scope of review is constrained by the provisions of the “last chance” agreement for the well canvassed policy reasons of supporting and encouraging and enforcing mutually agreeable grievance settlements.

In Owens-Corning, Arbitrator Whitehead upheld the terms of a last chance agreement in circumstances where an employer was terminated for the failure to appear for an overtime shift that he had agreed to work. The arbitrator was unpersuaded by the union’s argument that the breach of the last chance agreement was merely technical. Also see: Liquor Control Board of Ontario (R. Brown, 2011), supra.

88I have carefully reviewed the decisions on last chance agreements submitted by Mr. Gutman. In ADM/Agri, supra, an employee left the workplace without permission and did not return to work during the rest of his shift. The employer maintained that this absence breached company rules and violated the terms of the employee’s prevailing ‘continued employment agreement’ (“CEA”). It terminated him. The CEA had been signed after the employee had been previously terminated because of his substance abuse issues and his failure to attend work regularly. The terms of the last chance agreement included paragraphs 5 and 7, below:

I understand that upon my return to the workplace, I must meet all established standards of job performance including those set out in the work rules and Health and Safety Policy, and will comply with all applicable government regulations. I understand that I will be subject to the company’s disciplinary procedures for failure to meet any of these standards.

I understand and agree that my continued employment is contingent upon my meeting satisfactorily all the above terms in this CEA for a period of not less than two (2) years from my return to work following successful completion of the treatment plan referenced in # 1 above. Failure to do so subjects me to immediate termination of my employment with the company. It is agreed that any termination pursuant to this agreement will be deemed to be for just cause.

89Arbitrator Brandt appropriately cautioned arbitrators to exercise particular care when applying a last chance agreement. As he explained:

Given the draconian effects of a last chance agreement and, in particular, the deprivation of the right of a terminated employee to challenge his/her discharge on the basis that it was without just cause, considerable care should be taken to ensure that the conduct alleged to have triggered the agreement is, as a matter of interpretation, covered by the agreement. My jurisdiction under paragraph 8 of the CEA to determine whether or not there has been a violation of the “terms and conditions of the CEA” must be taken to include a jurisdiction to interpret the scope of the CEA and , in particular, to determine whether or not leaving the job or the assigned work area without permission of the supervisor constitutes a failure to meet one of the conditions set out in the CEA. [Emphasis added]

90When Arbitrator Brandt compared the terms of the last chance agreement to the workplace offenses that the employee was said to be committed, he found that the employee had complied with the expectations set down in the last chance agreement, but had failed on other work performance matters that were entirely collateral to the main concern of the agreement. As the arbitrator explained:

The grievor was originally discharged as a result of his substance abuse problems, he was placed under a CEA which addressed those problems and was apparently successful in meetings [sic] the objectives set down in the CEA. In other words, living and working in the shadow of the CEA, he “cleaned up his act” and, to the extent that the company and the union, in entering the CEA, intended to put into place conditions conductive to ensuring that the grievor would deal with his substance abuse problems and meet attendance targets, that objective has been achieved.

As a consequence, Arbitrator Brandt ruled that the employee’s conduct in leaving the workplace without permission did not offend the conditions in the last chance agreement, which was the basis for his termination. As a result, he upheld the union grievance and ordered the employee to be reinstated with full compensation and benefits.

91The last chance agreement in ADM/Agri. is qualitatively distinguishable from our present case. Mr. Robbins was disciplined for workplace conduct in January and again in February 2018 within the plain meaning of the 2015 Minutes of Settlement. The drafting of Article 8 of the Minutes of Settlement is broad, and does not contain the negotiated limitations that were found in the last chance agreement in ADM/Agri. The employee in ADM/Agri was terminated for misconduct not covered by the last chance agreement, while Mr. Robbins was disciplined, and then terminated, for misconduct that was within the scope of the conditions of this last chance agreement.

92As well, I have considered Arbitrator Richard McLaren’s 2009 ruling in Municipality of Chatham/Kent, supra., which the union also has relied upon. In this case, a municipal employee was working under the shadow of a last chance agreement. This last chance agreement arose after he had been terminated for an absence from work caused by an incarceration arising from a domestic assault linked to alcohol abuse. The agreement stipulated that the employee could not engage in “culpable conduct which merits discipline within the next 24 months.” If he did, this would amount to just cause for termination. The last chance agreement also removed the arbitrator’s jurisdiction under s. 48 of the Ontario Labour Relations Act, 1995 to substitute a penalty should the culpable conduct be proven.

93Subsequently, the employee was arrested and incarcerated for seven days for an off-duty breach of his court-ordered recognizance conditions. This meant that he violated the attendance requirements in his last chance agreement. His employer terminated him for the violation.

94Arbitrator McLaren found the employee’s conduct was culpable, but it was not conduct of the same nature that led to the last chance agreement. More importantly, the arbitrator took issue with the stipulation in the last chance agreement that removed his ability to mitigate the discipline. As he stated:

The last chance agreement purports to take away my jurisdiction to vary the penalty of discharge through the Labour Relations Act, 1995….I find this to be an over reaching and over grasping set of provisions designed to lead to no other result than the formal legalistic conclusion of just cause being non reviewable in any shape or dimension…a bargain between an employer and a union cannot devise a contractual LC agr [last chance agreement] that mandates a process which denudes the arbitrator of the discretionary powers of s. 48 (17).

As a consequence, the arbitrator returned the employee to work without compensation or benefits, and reset his period of probation under the last chance agreement to 24 months. A significant mitigating factor in Arbitrator McLaren’s decision was the grievor’s long employment service (24 years).

95I take a different view of the prevailing state of the law on last chance agreements than the reasoning laid out in Municipality of Chatham/Kent. The long-accepted approach by Ontario and Canadian labour arbitrators is to strictly enforce the negotiated terms of a last chance agreement, unless one of the following four conditions has been satisfied:

1. If the union has demonstrated that the factual terms and conditions of the last chance agreement have, in fact, not been materially breached;

2. If the terms or the application of the last chance agreement violate human rights legislation;

3. If the terms or the application of the last chance agreement are found to be arbitrary, discriminatory or in bad faith; or

4. If, in some circumstances, the grievor can demonstrate that s/he has genuinely engaged in addiction rehabilitation programs following her/his dismissal for breaching the last chance agreement, which would indicate a favourable prognosis for sobriety, a successful return to work and would not amount to undue hardship.

I am not aware of any subsequent arbitration or judicial award which has adopted the view that negotiated restrictions on an arbitrator’s statutory jurisdiction to vary a workplace penalty as per a last chance agreement are in breach of the governing labour relations legislation and are therefore unenforceable. Accordingly, I decline to follow the reasoning in Chatham/Kent.

96As such, I do not need to review the well-accepted principles on the mitigation of discipline penalties in the unionized workplace, as laid out in Ontario Store Fixtures, supra. Because this termination arises out of the strict conditions in a last chance agreement, the mitigation principles are not relevant in this particular case.

Void Ab Initio

97The final argument that I have been asked by the Union to consider is to declare the termination of Mr. Robbins was void ad initio. In industrial relations English, this term means that the deed – in this case, the termination – was void from the very outset because of a significant irregularity. As I understand the Union’s argument, the Employer did not provide it or Mr. Robbins with the real propose of the meeting on 20th February, thereby placing Greg Wilson and Mr. Robbins at a disadvantage as to why they were being summoned.

98The evidence presented to this hearing is that the Employer sent a letter, dated 15th February 2018, to Mr. Robbins, and copied to a OPSEU local officer, Mr. Kevin Arthur, and to the OPSEU London office. The letter stated, in part:

This letter is with respect to an alleged incident that occurred on Tuesday, February 6, 2018 wherein you left your work station prior to the 7:30pm buzzer while a light was on at your lane. I am currently investigating this matter and, in the context of same, will be making a determination as to whether you have violated the Minutes of Settlement dated June 5, 2015 as a result of the above.

Accordingly, you are required to attend a meeting to discuss the matter mentioned above. The meeting has been scheduled as follows:

• Tuesday, February 20, 2018 at 5:45pm in the LRSC Boardroom

You are entitled to union representation in accordance with Article 27.3 of the Collective Agreement as disciplinary action may result. Your OPSEU representative can be reached at the London Region One office [with phone number provided]. [Emphasis added]

99The plain reading of this letter summoning Mr. Robbins to a meeting states that the incident of 6th February 2018 – leaving his work area early – was being reviewed by management in the shadow of the 2015 Minutes of Settlement. Discipline was expressly mentioned as a potential consequence. As well, he was explicitly informed of his right to have union representation with him at the meeting. Thus, entering the meeting, Mr. Robbins and his union representative knew the factual issue of concern, the possibility that discipline was being considered by management, the terms of the last chance agreement might be triggered and his procedural right to have union representation accompany him was offered.

100Mr. Gutman has relied upon three awards in support of OPSEU’s argument on this issue. In Molson’s Brewery (Ontario) Ltd, supra, the Ontario Divisional Court in 1982 quashed a decision by an arbitrator for relying upon a grievor’s entire disciplinary record when deciding to terminate him, notwithstanding a sunset provision in the collective agreement which imposed time limitations – varying from one to three years – on the availability of an employee’s prior discipline record. Mr. Gutman argued that, in our present case, the LCBO had incorrectly relied upon Mr. Robbins’ entire discipline record in arriving at its decision to terminate.

101I disagree with this characterization. As I have stated previously, I have found that the LCBO was entitled to rely upon the 2015 Minutes of Settlement and the January 2018 disciplinary letter of reprimand as its basis for assessing the 6th February incident. On the facts of our case, there is no problematic use of prior discipline such as to void the termination decision because Mr. Robbins’ pertinent prior discipline did not engage, let alone breach, any time limit sunset restrictions. As well, I have said that the LCBO was entitled to review the previous steps it had taken with regards to non-disciplinary coaching, not as part of the prior disciplinary record, but for the limited purpose of establishing that it had relied upon, and exhausted, the tools in its non-disciplinary toolbox before turning to its disciplinary options.

102I have read Metrolinx – Go Transit, supra., and I do not find that it is on point with the issues in our case.

103Finally, I have reviewed the 2000 decision of Vice Chair Felicity Briggs in Liquor Control Board of Ontario, supra. This case focused on the termination of a unionized LCBO employee for the purported mishandling of employer funds. When he was summoned to a meeting with management to investigate the allegation, he was not informed of his right to have union representation in advance of the meeting, as per Article 26.3 (now Article 27.3) of the governing collective agreement. Consequently, he was unrepresented at the meeting where his conducted was being investigated as a potential case of workplace misconduct. Discipline, and termination, followed. Vice Chair Briggs noted that the negotiated right to union representation was a substantive right, and its violation resulted in the determination that the termination was void ab initio.

104This is not our case. Most importantly, Mr. Robbins was clearly informed of his right to union representation, and Greg Wilson attended the 20th February meeting in his capacity as a local union officer to represent Mr. Robbins. I see no breach.

105In sum, I am unpersuaded that there is any basis for a persuasive void ab initio argument.

Conclusion

106For the reasons stated, I am dismissing the OPSEU grievance filed on behalf of Mr. Robbins. In doing so, I have sympathy for his situation, and can only wish him well.

107I am grateful for the advocacy of Mr. Gutman and Mr. Cogswell. Both of their clients were well served by their representations.