GSB# 2022-11137

IN THE MATTER OF AN ARBITRATION

Under

THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT

Before

THE GRIEVANCE SETTLEMENT BOARD

BETWEEN

Labourers' International Union of North America - Local 506 (Abdurashid)

Union

• and -

The Crown in Right of Ontario

(Metro Toronto Convention Centre Corporation)

Employer

BEFORE

Randi H. Abramsky

Arbitrator

FOR THE UNION

Ryan Ehrenworth

Labourers' International Union of North America, Local 506

Counsel

FOR THE EMPLOYER

Erin R. Kuzz

Sherrard Kuzz LLP

Counsel

HEARING

June 9 and July 13, 2023

Decision

1On November 15, 2022, the Grievor, Amira Abdurashid, was terminated by the Employer pursuant to a Last Chance Agreement. The Union has grieved that termination, alleging that the termination was without just cause and/or made in an arbitrary, discriminatory and bad faith manner.

1. Facts

2The parties proceeded by way of an Agreed Statement of Facts, a Joint Book of Documents, a video of the incident, the Union’s particulars and viva voce evidence.

3The Agreed Facts are as follows:

1. The Employer, Metro Toronto Convention Centre (“MTCC”) is a world class event space in downtown Toronto.

2. Labourers’ International Union of North America, Local 506 (“Local 506”) represents certain employees at the MTCC, including employees working the Banquets Department.

3. The parties are bound to a collective agreement with an expiry date of December 31, 2023.

4. The Grievor’s employment was terminated by letter dated November 15, 2022. That letter states, in relevant part, as follows:

This letter will confirm our discussion today, November 15, 2022, in which you were advised that your employment is terminated effective immediately for cause.

As you are aware, in July, 2020 you entered into a Last Chance Agreement with the Company, further to which you were reinstated to your employment (the “Last Chance Agreement” or “LCA”).

The LCA that you entered into in July, 2020 stated, among other things:

The Grievor agrees to abide by all of MTCC’s rules, regulations, and policies, particularly those related to theft, possession of unauthorized product or funds, and General Standards of Conduct. For the two years following the Grievor’s first shift back to work, should there be any violation of such policies, the Grievor’s employment will be terminated immediately for cause.

Your first shift back was November 8, 2021.

On November 7, 2022, you violated MTCC policies, rules and regulations, including General Standards of Conduct, when you and a colleague, Zinaida Albina, engaged in an argument during lunch service, despite clients being within earshot and your supervisors telling you repeatedly to stop. In the course of the interaction, a tray of desserts fell on the floor, at which point you walked away from the situation and the client was short four desserts for service.

Having regard to the above, MTCC is of the view that you violated the clear terms of the LCA. Without prejudice to whether this would amount to just cause absent the LCA being in place, further to the terms of the LCA, your employment is immediately terminated for cause.

4Local 506 filed a grievance on the Grievor’s behalf dated November 16, 2022.

5. At the time of the termination giving rise to the Grievance, the Grievor was employed as a part-time Server. The parties have provided a job posting for the position, which includes the general duties and responsibilities.

6. The Grievor was originally hired on or about January 24, 2002. The Grievor was employed on a casual basis until January 1, 2019, after which she was a part-time employee. That was her status as of the termination of her employment.

7. The Grievor’s employment had been terminated once before (in February 2020) as a result of a violation of the Company’s policies and General Standards of Conduct. The policies and General Standards of Contact are contained in the MTCC Handbook. Local 506 grieved on her behalf and the Parties and the Grievor agreed to settle the grievance.

8. The settlement included the Grievor’s reinstatement to employment, effective November 8, 2021, without loss of seniority and without back pay. The Parties and the Grievor signed what the Parties agree is considered a “Last Chance Agreement” on June 22, 2020 on the part of the Grievor and on July 6, 2020 on the part of the Employer.

9. On March 17, 2020, a state of emergency was declared in Ontario in response to the COVID-19 pandemic which required the closure of schools, restaurants and bars and prohibited gatherings of more than 50 people.

10. The Employer undertook a graduated reopening for small scale events as of August 2020, however, due to the periodic impositions of capacity limits and lockdowns the Grievor was not reinstated until November 8th, 2021.

11. The Parties agree that on its face the Last Chance Agreement states that the Grievor was required to abide by all of the MTCC’s rules, regulations and policies as well as the General Standards Conduct, and that any violation would result in the termination of her employment for just cause. Further the Parties agreed that if Local 506 grieved such termination, the Arbitrator’s jurisdiction would be limited to determining whether the conditions had been breached by the Grievor and if any breach was found the Arbitrator had no jurisdiction to substitute a lesser penalty.

12. Those Standards of Conduct include:

a. Every employee and customer of the Centre wants to be treated fairly, with dignity and respect as well as conduct their business in a safe environment. Therefore, employees are expected to act and behave in a manner that reflects the vision and values of the Centre and that support our corporate standard of delivering excellent customer service.

b. Being discourteous to customers or follow employees is strictly prohibited.

c. Interfering with other employees or customers while on company property is strictly prohibited.

d. Insubordination, refusal or failure to comply with reasonable and proper work requests of your Manager/Supervisor or other Management personnel is strictly prohibited.

13. The events leading to the Grievor’s November 15, 2022 termination occurred on November 7, 2022. Employees, including the Grievor and Zinaida Albina (“Albina”) were among those setting up for a luncheon event hosted by the Association of Fundraising Professionals. As is planned for some events, certain courses of the meal were pre-set on the table. In the case of the November 7, 2022 event, the appetizer plates and dessert plates were to be set out at each place setting prior to the commencement of the luncheon.

14. When serving meals to a large group of people, the MTCC will often set up a “satellite” kitchen outside the main area where food is prepared. Such a kitchen is separated from the dining area in which guests sit and eat by curtains. During the events in question, technical tests were being conduct (i.e., lighting, sound) to prepare for the event.

15. During the altercation between the Grievor and Albina a tray holding approximately twelve (12) individual dessert plates fell to the floor. The plates were broken and the food was unusable.

16. Following the incident on November 7, 2022, two Banquet Managers who were present for at least part of the altercation provided written statements. The MTCC interviewed the Grievor and Albina, and the notes of those meetings are included in the materials before the Arbitrator. Local 506 does not dispute that the notes accurately reflect what the Grievor said in her interview, although some of the contents of the interview may have been repetitive and the degree of repetition is not reflected in the interview notes.

17. There is no dispute that the Grievor is familiar with the MTCC Handbook.

18. The Grievor was issued a non-disciplinary warning on May 19, 2022 regarding her alleged failure to abide by the Employer’s dress code. The Employer’s position was that the Grievor had breached the Last Chance Agreement but that the Employer was exercising leniency by providing a counselling letter instead. This counselling letter sets out a reminder that the Grievor is required to abide by the MTCC Polices and Standards of Conduct as reference in the Last Chance Agreement. The Union did not grieve the imposition of the letter.

19. Albina was issued a one (1) day suspension for her role in the November 7, 2022 altercation. Albina had approximately 14.5 years of service as of the date of her suspension. Local 506 filed a grievance on Albina’s behalf in relation to the suspension but that grievance was not referred to arbitration.

20. On June 1, 2023, Local 506 provided a Statement of Particulars to the MTCC. The Parties agree the Statement of Particulars is the Grievor’s representation concerning the events in question as of June 1, 2023.

A. The Last Chance Agreement

5The parties’ Last Chance Agreement provides that “[i]n an effort to maintain a viable employment relationship, the Company, in good faith, has agreed to conditionally reinstate the Grievor on the terms and conditions set below.” The Grievor would be reinstated to her position of Part-Time Waitstaff in the Banquet Department with no loss of seniority, but without back pay. She agreed to “abide by all of MTCC’s rules, regulations, and policies, particularly those related to theft, possession of unauthorized product or funds, and General Standards of Conduct.” It then continues: “For the two years following the Grievor’s first shift back to work, should there be any violation of such policies, the Grievor’s employment will be terminated immediately for cause.”

6The next paragraph of the LCA states:

3. In the event that the Union files a grievance relating to such termination, the Union and the Employer agree that an arbitrator’s jurisdiction shall be limited to a determination of whether any of these conditions have been breached by the Grievor, and if an arbitrator so determines, he/she shall have no jurisdiction to substitute a lesser penalty than the specific penalty of termination of employment under the Collective Agreement or by virtue of the Labour Relations Act, since all parties have agreed by this Agreement that the specific penalty such a breach shall be termination.

7The LCA was negotiated by the parties after the first termination grievance had been referred to the Grievance Settlement Board. It is signed by the Union, the Grievor and the Company.

B. The Incident of November 7, 2022

8Based on my careful review of the video, the testimony of Banquet Manager Anne Amongo, the testimony of the Grievor, and the documentary evidence, I am persuaded, on the balance of probabilities, that the Grievor did engage in misconduct on November 7, 2020 during her altercation with her co-worker, Zinaida Albina. She engaged in a loud, heated exchange with Ms. Albina over a tray of desserts, including a “tug of war” with the tray, and ignored her Supervisor’s directive to stop, which led to the tray falling to the ground and breaking the plates. She then walked away.

9The Grievor testified that she, and her partner, were responsible for five tables, with seven guests at each table. They set the tables with linen, silverware, water and bread, and were to pre-set for salad and dessert. She went to the kitchen area closest to her tables because two of her tables still needed dessert. She saw only two dessert trays on the pan-rack. It appears that for her two tables she needed fourteen dessert plates. The trays normally hold between ten and twelve plates, so she was adding desserts to one of the trays. In that way, she would only have to make one trip, not two, and “would not have to come back.”

10About the same time, Zinaida Albina also came in search of desserts. According to her statement, there were only two trays of desserts left on the rack. She took one of them and put it on her cart. She then went to take the second tray, “which she noticed had more desserts than normal.” As she was putting it on her cart, “Amira started pulling on the other end.”

11The video shows that both employees were holding onto the tray and it was moving back and forth between them. Although there is no sound with the recording, both appear agitated and appear to be arguing.

12Banquet Manager Amongo testified that she was a few feet away when she heard “loud voices yelling at each other.” They were arguing over a tray, each claiming the tray was theirs. Both “were yelling.” She went over to them, and testified that she told them to stop, that it was not the time to fight, and reminded them of the client’s request to keep the noise down during the set-up. She stated that they did not stop but continued to argue and each was pulling on the tray till it fell to the floor. Neither made an effort to clean the broken dishes up or apologize for what occurred. Ms. Amongo testified that the Grievor continued to argue with Ms. Albina for a few seconds, then went to the rack, picked up a full tray and walked away. Ms. Albina continued to plead her case to Ms. Amongo and another Supervisor, stating that it was not her fault. She then went to the pan-rack, put a second tray on her cart and left.

13Significantly, the Grievor, in her testimony, did not dispute that Ms. Amongo told her and Ms. Albina to stop. She denied yelling or raising her voice. She said that “someone grabbed my hand” and she pleaded with them to “please let me take the tray” as she had “put extra on it.” She asked her to count the plates, but Ms. Albina was “yelling and screaming at her.” She felt “triggered” then let go of the tray and it fell. She felt “stressed” and was “not feeling good”. She “blacked out” and walked away.

14The Grievor’s explanation of what occurred has not been consistent. During her initial explanation with management on November 8, she stated as follows:

I was taking the dessert from the upright. There were only two left. I was putting more desserts on the tray. A lady pulled the tray from the other side. I couldn’t see who that was. I told her that it was my tray. She said that she needed it. She started screaming and yelling. She was not very professional. I first hold the tray. Then I let go. I don’t know what happened. She probably let it go. Or she pulled it. I don’t know I couldn’t see on the back of the upright. The tray fell. It freaked me out. I was scared for my safety. I did not say anything. I just left.

15The video shows that the Grievor and Ms. Albina were face to face, each holding and pulling the tray. There was no pan rack between them. She did not tell management at the time that she was scared for her safety, even though two Managers were present.

16In the Union’s particulars, the Grievor provided the following explanation:

13. As the Grievor knelt down to pick up desserts, another banquet server named Zinaida Albina (“Albina”) simultaneously grabbed the tray from the other side. The area around the pan rack was not well lit and the Grievor did not see Albina reaching for the tray.

14. Believing that the tray was stuck, the Grievor gently tugged on it to pull it free. She then heard yelling from the other side. Upon standing up to assess the situation, the Grievor saw Albina hollering at her and demanding that she not touch the tray.

15. Startled by Albina’s outburst, the Grievor attempted to explain that she had already counted the desserts for her tray and needed them for her guests due the shortage on the north side. In response, Albina continued shouting, claiming ownership of the tray and that the Grievor was not permitted to take them from her side of the building.

16. The Grievor relented and let go of the tray which accidentally caused the desserts to come crashing to the floor. Believing that Albina would pick up the desserts from the floor, the Grievor went to grab another tray from the pan rack. However, Albina pushed her from behind as she approached the rack.

17. In response to Albina’s excessive outburst and physical contact, the Grievor felt fear and chose to leave the area immediately to prevent any further escalation. The Grievor was concerned for her safety. The entire incident lasted only a few seconds and was solely instigated by Albina.

17At the hearing, Ms. Amongo was asked whether she saw Ms. Albina make any physical contact with the Grievor. She was present at the relevant time but saw no such contact. Nor had the Grievor reported any such contact to her or anyone else in management. She also did not include it during her interview with management. It is also noteworthy that the Grievor, in her testimony during the hearing, made no mention of this physical contact by Ms. Albina. Nor did she claim any fear for her safety.

18The video shows that after the tray fell, the Grievor went to retrieve another tray while Ms. Albina continued to talk to management. The Grievor then left with her tray and Ms. Albina placed another tray on her cart and left.

19The Grievor testified on examination-in-chief that “this type of incident occurs all the time.” “We grab trays, dishes break, it’s hectic.” Ms. Amongo agreed that the pace is hectic and acknowledged, in cross-examination, that conflicts between employees arise but do not usually result in discipline since most employees are able to work things out, and that is the Employer’s expectation. On re-examination, Ms. Amongo testified that it was not common for employees to yell at one another, or to be involved in a struggle over a tray, or for the tray to fall to the floor. In this case, the evidence showed that, due to the lost dessert tray, the event was short four desserts but no guest was left without dessert due to some no-shows.

20The evidence also establishes that due to the dessert plates crashing to the floor, at least one of the AV technicians, who were right next to the draped kitchen area, heard the crash and one came into the area to see what had happened. The AV technicians were from a third-party company hired by the client; they were not MTCC employees. The area where the incident occurred was limited to staff only.

21Ms. Amongo testified that she did not separate the Grievor from Ms. Albina after the incident because they were assigned to separate areas, worked with different partners, and had resumed work. She noted that the Grievor never advised, at the time, that she had been frightened by the incident and scared for her safety. Nor did she witness any physical contact between them.

C. Was the Grievor’s Conduct a Violation of Policy?

22I am persuaded, on the balance of probabilities, that on November 7, 2022, the Grievor violated several provisions of General Standards of Conduct. The Grievor, in my view, was understandably upset that the tray she was preparing (by adding extra desserts) was being pulled away by Ms. Albina, but she did not conduct herself in a professional manner and acted inappropriately when she engaged in a loud exchange and a tug of war over the tray. She also disregarded her Supervisor’s direction to stop. While, in her view, Ms. Albina was at fault for taking the tray she had already claimed, the Grievor is responsible for her own conduct and actions.

23Section 3.3.2(b) outlines the General Conduct expectations. It states:“[t]hreatening, intimidating, coercing or interfering with other employees or customers while on company property is strictly prohibited.” “Being discourteous to customers or fellow employees is strictly prohibited” “Insubordination, refusal or failure to comply with reasonable and proper work requests of your Manager/Supervisor or other Management personnel is strictly prohibited.” The Grievor’s actions on November 7, 2022 violate these standards.

2. Reasons for Decision

24The Grievor was terminated pursuant to a Last Chance Agreement. The Union asserts that there are strong and compelling reasons not to defer to the terms of that Agreement in this case. The Employer asserts that my only role is to determine whether misconduct occurred.

25The Union first asserts that the delay caused by the pandemic closure artificially extended the scope of the LCA, and that because of the delay, she did not receive the full benefit of the Agreement – a prompt return to work. It submits that the length of the LCA, in light of the pandemic, goes well beyond the 18-month sunset clause in the parties’ Collective Agreement. In support of its contention, the Union cites to Re Parmalat Dairy & Bakery Inc. and Retail Wholesale Canada , CAW Division, Local 462, 2002 CarswellOnt 4702 (Bendel), where due to the Grievor’s not receiving the benefit of the bargain (an anger-management program), the discharge was not upheld.

26I am unable to agree with this submission. The LCA was negotiated after the start of the pandemic, after the emergency declaration by the Premier and the shutdown of the Province. The Grievor signed the Agreement on June 22, 2020 and the Employer on July 6, 2020. It is unclear when the Union signed it, but it is likely around that same time period. When the Employer would reopen was unknown at that time, and that is likely why the Agreement does not include a specific return to work date. Instead, it states: “For the two years following the Grievor’s first shift back to work, should there be any violation of such policies, the Grievor’s employment will be terminated immediately for cause.” The goal of this was to ensure that there would be no issues for a two year period once the Grievor returned to work. Whether a “prompt return to work” was possible was completely unknown at that time. That was likely everyone’s hope, but what was guaranteed was a return to work, in her former position with her seniority intact. That was the “bargain” that was struck in the LCA, and she did receive the benefit of the bargain: she was returned to work, in the same position, with no loss of seniority. I find the case cited by the Union to be distinguishable on the facts.

27It is true that the duration of the pandemic meant that the LCA was in effect longer than the 18-month sunset clause in the Collective Agreement, but that was a term negotiated by the parties in full knowledge that we were in the midst of an unprecedented pandemic. It is appropriate to consider the context in which an agreement is negotiated in interpreting the parties’ intent. Re LIUNA and Bruce Power LP, 2020 CanLII 6012 (Slaughter, OLRB). In this case, the pandemic was still in its early stages and no one at the time could know its scope or duration.

28The Union also contends that discharge is too severe a penalty for what occurred, which it submits is minor – a 15 second interaction that led to some lost desserts. It submits it’s the kind of interaction that occurs often in a stressful, hectic food service environment. The incident did not cause harm to the Employer’s reputation or impact the luncheon. It notes her lengthy seniority – over 20 years in the hospitality industry, her age (58), which will preclude her ability to achieve similar seniority elsewhere. It submits that the penalty is unfair and excessive, and that it offends one’s sense of equity.

29It is clear that but for the LCA, the Grievor would not have been discharged in this case. The co-worker, Ms. Albina, who was equally if not more culpable in all the circumstances, was issued a one-day suspension. The termination letter itself states: “Without prejudice to whether this would amount to just cause absent the LCA being in place, further to the terms of this LCA, your employment is immediately terminated for cause.” Consequently, the Employer relied on the LCA. Under the facts and specific circumstances of this case, I find that it had the right to do.

30The Union argues that this LCA should be narrowly construed, and that it was intended to preclude an event like what occurred in the February 2020 termination. There was no evidence concerning what led to that earlier termination. Instead, the Union relies on paragraph 2, which says that the Grievor “agrees to abide by all of MTCC’s rules, regulations, and policies, particularly those related to theft, possession of unauthorized product or funds, and General Standards of Conduct.” Its goal the Union suggests, was to bar a specific type of misconduct from reoccurring. It also submits that the LCA should not be interpreted in a manner which gives the Employer license to terminate for any reason. It relies on the Latin phrase “exclusio unis est exclusion alterius” which means that the expression of one thing is the exclusion of the other. By particularly noting policies related to theft and possession of unauthorized product or funds, the Union submits that the parties intended to exclude all other policies. In support, the Union cites to Re Sofina Foods Inc. and UFCW, Local 1518, 2016 CarswellBC 2884 (Nichols), where the arbitrator determined that LCAs had to be carefully construed in regard to expected conduct, and should not be used lightly for summary dismissal.

31The words chosen by the parties in paragraph 2 of the LCA, however, are not limited. In paragraph 2, the Grievor “agrees to abide by all of MTCC’s rules, regulations, and policies… and General Standards of Conduct.” (emphasis added). It also goes on to state: “Should there be any violation of such policies [not just the theft ones],the Grievor’s employment will be terminated immediately for cause.” (emphasis added). The words “all” and “any violation” must be intended to include all policies, not just those related to the first termination.

32The LCA does include the phrase “particularly those related to theft, possession of unauthorized product or funds.” The word “particularly”, in the context of paragraph 2, does not mean “only”. When read, in context, the Grievor’s commitment to abide applies to “all of MTCC’s rules, regulations and policies.” Had the parties wanted to limit the scope of the Grievor’s commitment, it could have done so. Instead, very broad words were chosen.

33In any contract interpretation case, including this LCA, the goal of a labour arbitrator is to interpret the agreement of the parties – to determine the intent of the agreement, based on the words used by the parties. Parties to an agreement are deemed to say what they mean, and mean what they say. To interpret the LCA to only apply to policies related to theft, or possession of unauthorized product or funds would not be a reasonable interpretation of the parties’ Agreement. It would be re-writing it. My role is to interpret and apply the Agreement negotiated by the parties based on the words used by the parties.

34The case law is also clear that arbitrators generally do not relieve a party from the conditions negotiated in a last chance agreement, even if those conditions might subsequently appear to be harsh. Re Lilydale Inc. and Retail, Wholesale and Department Store Union, Local S-955, 2015 CanLII 57060 (Hood), at para. 66.

35I am also unable to accept the Union’s contention that what occurred was so de minimis as to be a “trifling”, citing Re McDonald and Ministry of Community Services and Correctional Services, 2014 CanLII 8244 (ON PSGB). It asserts that the Grievor had no idea that her actions violated the LCA, citing Re Canada Waste Service Inc. and I.U.O.E., Local 115, 9 L.A.C. (4th) 101 (Glass). The Union also relies on the fact that the Manager did not separate the Grievor and Ms. Albina, asserting that this demonstrates that management did not view the matter seriously.

36While the Grievor’s wearing the wrong shoes in May 2022, for which she received a counselling letter, might be viewed as a “trifling” matter, her actions on November 7, 2022 may not. Although what occurred was not a “major” offense, it was clearly inappropriate conduct, including ignoring a Supervisor’s instruction to stop. The Grievor was on notice about the LCA. The incident took place one year into the LCA, and she had been reminded of it in the May 19, 2022 counselling letter about her shoes not being in compliance with the Employer’s dress code policies. That letter clearly reminds the Grievor of the LCA, and that “it must be understood that any further violations of MTCC’s rules, regulations and policies during the life of this agreement will result in the immediate termination of employment.”

37The Agreed Statement of Facts states that the Grievor was familiar with the MTCC Handbook, which includes the Standards of Conduct. At the hearing, she did not assert that she did not know or understand the rules. Instead, she took the view that she did nothing wrong – that it was all Ms. Albina’s fault. Yet the evidence shows that when Ms. Albina pulled the tray, the Grievor pulled the tray back, and engaged in a yelling match with Ms. Albina over the dessert tray. She also ignored her Supervisor’s direction to stop - the argument continued, the tugging continued and the tray accidentally fell to the ground. She then left, leaving the broken dishes on the floor. Although it is understandable why she was upset with Ms. Albina’s actions, she chose to respond as she did and is responsible for her part of the interaction. The fact that the Grievor was not separated from Ms. Albina at the time does not, under the facts here, lessen what occurred. Ms. Amongo immediately reported what occurred to her Manager, and an investigation followed. The Grievor’s actions cannot be viewed as de minimis or insignificant.

38Nor, for the same reasons, may it be reasonably concluded that she was unaware that her conduct was inappropriate and in violation of the Code of Conduct. This case is quite different from Re Canadian Waste Services, Inc. and I.U.O.E., supra, cited by the Union, where the arbitrator found a “technical” breach of the LCA, where the employee, and any reasonable employee, would not have known that quitting work early would be viewed as an illegal and unlawful strike. Being familiar with the Rules of Conduct, the Grievor should have understood that her actions were inappropriate – even if Ms. Albina was more in the wrong.

39Further, and very significantly, the wording of the LCA precludes any lessening of the penalty if a violation of rules and policies is found to have occurred. This is a most carefully constructed LCA, truly limiting the authority of an arbitrator to substitute a different penalty, including under the Labour Relations Act. Paragraph 3 states:

In the event that the union files a grievance relating to such termination, the Union and Employer agree that an arbitrator’s jurisdiction shall be limited to a determination of whether any of these conditions have been breached by the Grievor, and if an arbitrator so determines, he/she shall have no jurisdiction to substitute a lesser penalty than the specific penalty of termination of employment under the Collective Agreement or by virtue of the Labour Relations Act, since all parties have agreed by this Agreement that the specific penalty for such breach shall be termination.

40Section 48(17) of the Labour Relations Act states:

17. Where an arbitrator or arbitration board determines that an employee has been discharged or otherwise disciplined by an employer for cause and the collective agreement does not contain a specific penalty for the infraction that is the subject matter of the arbitration, the arbitrator or arbitration board may substitute such other penalty for the discharge or discipline as to the arbitrator or arbitration board seems just and reasonable in all of the circumstances.

41This provision broadly empowers an arbitrator to substitute a different penalty if it is determined to be “just and reasonable in all of the circumstances.” But there is a limitation on that authority – if the parties agree to a “specific penalty for the infraction.” Here, under paragraph 3, the parties agreed that “the specific penalty for such breach [of the LCA] shall be termination.” For this reason, paragraph 3 of the LCA does not improperly limit my authority under the Labour Relations Act, as the Union asserts. The Labour Relations Act specifically permits the parties to limit the authority of an arbitrator by agreeing to a “specific penalty” for an infraction.

42Because of paragraph 3 of the LCA, my authority to substitute a lesser penalty is severely limited. The only exception would be if the LCA violated any law. In Re Bakery Confectionary Tobacco Workers and Unilever Canada Inc., 2013 CanLII 62273 (Stout) Arbitrator Stout stated in regard to last chance agreements, at para. 33:

[G]ood labour relations are dependent on the parties being able to resolve their differences by negotiation and mutual agreement. Those mutual agreements include not only the collective agreement but also any other agreement including a last chance agreement which should be respected unless to do so violates the law.

43To the same effect is Re Canadian Waste Services and CLAC, 2000 CarswellOnt 5852 (Lynk), Supra, at paras. 23-24. This exception does not apply since there is no assertion that the Grievor’s actions related to a disability or any ground protected by the Ontario Human Rights Code, or other statute.

44For the same reasons, case law which states that there must be “strong and compelling reasons in order to vary the result which flows from a breach of [the last change agreement…” does not apply here. Re Parmalat Dairy & Bakery Inc. and Retail Wholesale Canada, CAW Division, Local 462, supra and cases cited at para. 26; Re Bullmoose Operating Corporation and C.E.P.U, Local 442, 2002 CanLII 79154 (Greyell); Re Canada Post Corp. and CUPW, 2010 CanLII 85732 (Lanyon). Given the parties’ agreement in para. 3 of the LCA, there is no arbitral authority to alter the specific penalty agreed to by the parties based on “strong and compelling reasons.”

3. Conclusion

45This is a very unfortunate situation. The Grievor’s actions on November 7, 2022, while relatively minor, nevertheless violated the Employer’s Standards of Conduct. The misconduct occurred within the two-year period set out in the LCA. Under the terms of the LCA, the Grievor’s violation of any policy would lead to her immediate termination for cause. I have no authority to substitute a lesser penalty. The grievance must be dismissed.