GSB# 2023-00210

UNION# 2023-0217-0002

IN THE MATTER OF AN ARBITRATION

Under

THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT

Before

THE GRIEVANCE SETTLEMENT BOARD

BETWEEN

Ontario Public Service Employees Union (Jouppien)

Union

• and -

The Crown in Right of Ontario (Niagara Parks Commission)

Employer

BEFORE

Johanne Cavé

Arbitrator

FOR THE UNION

Daniel Bastien Ontario Public Service Employees Union Grievance Officer

FOR THE EMPLOYER

Megan Beal Fasken Martineau DuMoulin LLP Partner

HEARING SUBMISSIONS

December 14, 2023 February 9, March 8 and March 22, 2024

Decision

1This is a grievance filed on behalf of Jeremy Jouppien (“the Grievor”) concerning the termination of his employment on January 17, 2023.

2The parties attended the first day of hearing in this matter on December 14, 2023. Following the Union’s opening statement, the Employer objected that the Union was attempting to expand the scope of the grievance, labelled as “unjust termination”, to include an allegation of discrimination in the failure to accommodate a disability. I directed the filing of written submissions on this objection, and the parties provided their representations on February 9, March 8 and March 22, 2024.

3This decision deals exclusively with the Employer’s objection.

BACKGROUND

4The following facts appear to be undisputed for the purposes of this preliminary issue.

5On January 2, 2023, a Lead Hand Arborist advised the Employer that he had received inappropriate and threatening text messages from the Grievor between December 24, 2022 and January 1, 2023 (the “Complaint”). These messages are among the reasons that led to the Grievor’s termination of employment.

6In response to the Complaint, the Employer launched an investigation on January 3, 2023. It scheduled a meeting with the Grievor for January 6, 2023. Prior to that meeting, the Grievor sent a text message to his supervisor, Duane Haining (“Mr. Haining”) stating that he was going to counselling and that he had attended his first Alcoholics Anonymous (“AA”) meeting.

7The meeting of January 6, 2023, was attended by the Grievor, his Union representative Colin MacKenzie (“Mr. MacKenzie”) and Employer representatives Sarah Steele (“Ms. Steele”) and Mr. Haining. During the meeting, the Grievor said he could not recall the offending messages because he had been severely intoxicated at the time, and throughout the holiday period. The Employer’s notes of the meeting show that the Grievor stated, among other things, “I can’t tell you anything I sent that night because I was black out intoxicated”, “Every day of the holidays I was black out drunk”, “I’m a sick person and I’m getting help right now”, “I have mental health issues”, “Went to first AA meeting last night”, “I am a good person while sober.”

8The Employer representatives met again with the Grievor and his Union representative on January 10, 2023, to ask follow-up questions regarding the Grievor’s “substance abuse condition”, as reflected in the Employer’s notes of the meeting. The Grievor was asked whether he had a formal diagnosis, whether he had been referred to treatment, and whether he had discussed alcohol abuse with his physician. He indicated that he first realized he had an issue with alcohol in or around March 2020 but that he had not seen his family doctor about his condition, had not received a diagnosis, and had not been referred to treatment.

9The Union filed the grievance on January 18, 2023, the day after the Grievor’s termination. On the grievance form, under “Statement of grievance”, the Union wrote “Unjust Termination”. Under “Settlement desired”, the Union sought four remedies on behalf of the Grievor: 1) reinstatement to the position held prior to termination, 2) compensation for time lost since termination, 3) full redress, 4) any other remedy deemed appropriate by the arbitrator.

10On April 24, 2023, the Employer, the Union and the Grievor met in a Step 2 grievance meeting, as part of the grievance process. Ms. Steele and Janice Spino represented the Employer. The Grievor was again represented by Mr. MacKenzie. The Employer’s notes of the meeting indicate that the Grievor reiterated that he had sent the text messages at issue while intoxicated. Mr. MacKenzie stated that the Grievor suffered from “alcohol disability” and that his family physician and his psychologist would back up that claim. The Grievor indicated that he had been dealing with this issue since he was 17 years of age. According to the Employer’s notes, after the Union referred to two letters from doctors confirming the Grievor’s addiction, the Employer asked: “Aside from alcohol, is that the basis for unjust dismissal?”. Mr. MacKenzie replied: “Yes, because it is a disability.” He expressed the view that the Grievor had been in denial about his alcohol issue until he was terminated and pointed out that he was now going for treatment. Further to the meeting, the Employer was provided with a letter from the Grievor’s physician, confirming a substance use disorder, primarily for alcohol.

THE PARTIES’ POSITIONS

11The Employer submits that it had understood, until the Union’s opening statement at the hearing, that the Grievor’s alcohol use was being raised as a mitigating factor for his behaviour or an explanation for why part of his conduct was not culpable, not that there had been a failure to accommodate or a breach of the Ontario Human Rights Code (the “Code”). The Employer argues that the Union is improperly trying to expand the scope of the grievance, labelled as “unjust termination”, to include allegations regarding accommodation and breaches of the Code. Such allegations are distinct matters from a general allegation that an employee has been improperly terminated and must be identified on the face of the grievance, or, at the very least, during the grievance process. In this case, the grievance does not refer to an alleged failure to accommodate, a breach of the Code, or any provisions of the Collective Agreement that refer to such obligations. These issues were not raised during the grievance process either. They were raised for the first time at the hearing. The Employer contends that it is improper for a party to find out on the first day of hearing that the grievance is entirely different than what had been represented up to that point. In its view, the threshold issue for determination in this case is whether there was just cause for the termination of the Grievor’s employment. The issue of the Grievor’s alcohol use is only relevant with respect to whether it is a mitigating factor that warrants the substitution of a lesser penalty.

12The Union disputes the Employer’s assertion that Code arguments were not raised prior to the Union’s opening statement. It contends that the allegation that the Grievor’s termination was discriminatory on the ground of disability has been inherent to the grievance throughout the process, and that the Employer reasonably ought to have known that the allegations of Code based discrimination constituted a part of the grievance.

13Both parties cited authorities in support of their positions, which I have reviewed carefully.

ANALYSIS AND DECISION

14In York Region District School Board v. District 16 O.S.S.T.F., 2005 CanLII 42477 (ON LA) (Knopf), the board of arbitration summarized the principles applicable to the expansion of grievances as follows, at pages 12-13:

The seminal case of Blouin Drywall, supra, determined that “the board [of arbitration] is bound by the grievance before it but the grievance should be liberally construed so that the real complaint is dealt with and the appropriate remedy provided to give effect to the collective agreement provisions”. That case, and its subsequent applications, have established that the grievance must identify the issue between the parties, and that issue then forms the basis of the arbitrator’s jurisdiction. However, the parties to the collective agreement are not expected to be precise in their legal articulation of the grievance. Grievances will not be defeated simply because of defects in form. It is to everyone’s advantage that the true nature of the dispute will be litigated. On the other hand, the “true nature of the dispute” cannot later be fundamentally modified or enlarged to take on a completely different case, resulting in a different grievance proceeding to arbitration than the one that was initially filed.

Further, arbitrators have been, and should be, very reluctant to allow issues to be heard at arbitration when they have not been discussed in the grievance procedure. It could be said that there is almost a presumption against allowing issues to be raised at arbitration that were not canvassed during the grievance process. This is because the value of the grievance process cannot be underestimated. It is critical that parties take the opportunity that the grievance procedure affords to identify their positions, discuss the situation, explore alternative approaches, seek a resolution of their differences or, at the very least, narrow the scope of their disagreement. Only if the process is fully utilized and exhausted can parties have a true understanding of their dispute and make informed decisions as to whether the grievance should be withdrawn, resolved, or referred to arbitration. Further, that very process can impact upon the choice of arbitrators. Failure to engage this process in a meaningful way not only violates the collective agreement, it also violates sound principles of labour relations and common sense. This is particularly important when a serious allegation, such as racism, is made. This was a major factor in the decision of Arbitrator Kevin Burkett in Re Metropolitan Toronto (Municipality) and CUPE, Local 79 (Armstrong), unreported, 1983-84, as cited in Re City of Toronto and CUPE, Local 79, supra:

A final basic principle that applies to the situation at hand concerns the Board of Arbitration’s authority over this Collective Agreement and Human Rights issues. In the Parry Sound decision, supra, the Supreme Court of Canada has declared that “substantive rights and obligations of employment-related statutes are implicit in each collective agreement over which an arbitrator has jurisdiction.” [paragraph 28] Accordingly, management rights must be exercised not only in accordance with the express provisions of the collective agreement, but also in accordance with the employee statutory rights. Further, “the substantive rights and obligations of the parties to a collective agreement cannot be determined solely by reference to the mutual intentions of the contracting parties as expressed in that agreement.” [paragraph 29] […]

15In this case, the grievance does not refer to the Employer’s alleged failure to accommodate a disability, it does not refer to breaches of the Code or of the Collective Agreement on the issue of accommodation, and it does not expressly seek remedies related to such breaches. These issues were not expressly raised by the Union during the grievance process either.

16However, the fact that the Grievor had a drinking problem was disclosed by the Grievor very shortly after he was informed of the Complaint. This was also discussed by and with him and the Union throughout the investigation and the grievance process. Those facts are determinative.

17Specifically, within a couple of days after being informed of the Complaint and the related investigation, the Grievor advised the Employer that he had attended an AA meeting. Then, at the first investigation meeting, the Grievor explained that he had been severely intoxicated at the time of the incident giving rise to the Complaint, that he was a sick person with mental health issues and again, that he had attended an AA meeting. The Grievor was all but admitting he was an alcoholic, which was, according to him, at the root of the behaviour which led to the Complaint.

18At the second investigation meeting, the Employer sought clarification from the Grievor on the timing of his realization that he had a “substance abuse condition” and whether he had sought treatment. That meeting appears to have been called by the Employer for the sole purpose of exploring that very issue, which is to its credit. The Employer asked pointed questions about the steps the Grievor had taken to address the drinking problem he claimed he had for years. The Grievor made it clear that he considered his behaviour to be rooted in a disability, and it is obvious by the nature of the Employer’s questions that it was alive to the fact that the Grievor might be an alcoholic.

19At the Step 2 grievance meeting, the Union made it clear that it was contesting the termination because the Grievor had an “alcohol disability”. The Union claimed that the reason the Grievor had not sought help prior to the Complaint was that he was in denial, but that his termination was the catalyst for finally addressing his illness. After the meeting, the Employer was provided with medical documentation confirming the Grievor’s substance use disorder.

20By raising and addressing the issue of the Grievor’s disability with the Employer repeatedly during the investigation and grievance process, the Union made it clear that it intended to advance an argument that he suffered from a disability which caused, at least in part, the behaviour that led to his termination. The Employer mistakenly understood that this would only be used by the Union as a mitigating factor in the determination of whether the termination was unjust. It did not expect the Union to raise the duty to accommodate. Yet, a termination that is discriminatory in that it takes place without due consideration of the duty to accommodate a disability is aptly described as unjust. While it would have been preferable and wiser that the Union articulate on the grievance form the reason for its position that the termination was unjust, i.e., notably that the Employer had failed to accommodate the Grievor’s disability, this omission is not fatal in the circumstances of this case. In the context of the ongoing discussion about the Grievor’s disability, the Employer should have reasonably expected that the Union would be or could be pursuing the issue of discrimination and duty to accommodate, even though the legal terms were not uttered. To hold otherwise in the circumstances of this case would elevate form over substance. This would be to the detriment of the Grievor’s interest to have the important issue of the duty to accommodate be heard. Conversely, in this case, the Employer suffers no prejudice or procedural unfairness by the Union’s reliance on the duty to accommodate, as the first day of hearing was adjourned after the Employer’s first witness, to allow the Employer to adjust its evidence based on the outcome of its objection, if required. Finally, this is a case of the Union refining and spelling out its defense at the hearing. It is not a case of the Union bringing a completely different case than what was discussed in the investigation and grievance process – the Grievor’s disability remains central to the Union’s position regarding the text messages at issue.

21The Employer argues that the circumstances in this matter are similar to those in Ontario (Liquor Control Board) and OPSEU (Anagnostopoulos), 2017 CarswellOnt 4264. In that case, the grievor was terminated for, among other things, attending work under the influence of alcohol and failing to provide documentation to the employer confirming enrolment in a suitable treatment program. The union filed a grievance alleging that the grievor was unjustly dismissed from her position. At the arbitration hearing, it argued that the grievor was an alcoholic and that her alcohol use was responsible, in part, for the conduct that led to the termination. The union argued that the employer had failed to accommodate the grievor’s addiction. The employer objected to the union’s arguments regarding the duty to accommodate, and the board of arbitration agreed that that constituted an improper expansion of the grievance. But it bares keeping in mind that the employer in that matter had tried many times previously in the presence of the union to make inquiries regarding the grievor’s alcoholism and offered to accommodate it. The grievor repeatedly denied she had an alcohol abuse problem and received no medical treatment for this between her termination and the last day of her testimony. In the circumstances, raising the employer’s failure to accommodate could be seen as a surprise. That case is distinguishable factually from the matter before me, where the Grievor acknowledged his alcohol problem, disclosed it, sought treatment and discussed it with the Employer throughout the investigation and grievance process.

22For the reasons set out above, the Employer’s objection is dismissed.