AD HOC 96: MCGUIRE, B. - TERMINATION

AWARD

Under date of November 14, 1975 the Minister of Labour appointed Judge J.C. Anderson of Belleville, Ontario as Chairman of three Arbitration Boards established to deal with three grievance disputes affecting the above mentioned Company and Union.

The Company Nominee to the three Boards was S.A. Dinsdale Q.C., Toronto, Ontario and the Union Nominee to the three Boards was Mr. C.W. Pethick, Toronto, Ontario.

It was not until January 27, 1976 that a meeting was convened in Toronto at which all the parties were represented. At this meeting, the Company was represented by:

J. W. Healy, Q.C. – Counsel

R. S. Finegan – Manager, Employee Relations

M. Sereda – Labour Relations Officer

H. C. Attrell – Security Liaison Officer

J. J. Oxley – Employee Relations Super.

W. M. Lawson – Public Relations Representative

The Union was represented by:

M. Levinson – Counsel

C.H. Hammett – General Chairman

F.H. Rogers – District Chairman, Yukon

J.D. Hunter – Regional Vice-President

M. Ferguson – Assistant Dist. Chairman, Ontario

J. Hiniuk – Alberta District Chairman

At the opening of the meeting, the Board was advised that the grievance of Mr. Y.M. Cho was withdrawn and that the parties had agreed to hear evidence relating to the grievance of Mr. Bernard Maguire and without repeating the evidence accept the finding of the Board with relation to the grievance of Mr. Bernard Maguire as applicable to the grievance of Mr. T.K. Chu and thus make a similar disposition of the R.K. Chu grievance without repeating the evidence relating to Chu.

SUMMARY OF THE FACTS

Mr. Bernard Maguire was employed by the Company as a technician at Dawson Creek, Alberta on the 6th of march, 1974. He was later transferred to Whitehorse, Yukon Territory, where he remained as a plant technician monitoring and regulating the incoming code messages until July 7, 1975 at which time his employment was terminated and he was paid two weeks salary and the cost of moving his family and effects to Edmonton, Alberta which was the point of his hiring was paid by the Company.

Under date of July 7, 1975 Mr. R.J. Wells, Regional Manager of the Company addressed a personal letter to Mr. B.J. Maguire which read as follows:

We regret to advise that subsequent to your being accepted for technical employment it has been determined that you do not fully meet entrance qualifications for such employment with our Company. In view of this we must terminate your services immediately. Arrangements are being made to pay you two weeks wages in lieu of notice of your employment termination. In addition, the Company will assume the cost of transportation, of yourself and dependants including the movement of your personal effects and household goods from Whitehorse to Edmonton which was original point of hiring.

On July 9, 1975 Mr. F.H. Rogers, Yukon District Chairman, Canadian Telecommunication Division of CBRT&GW addressed a letter to Mr. R.G. Wells which read as follows:

This as reference to a grievance instituted by and on behalf of Mr. Bernard Maguire, Plant Technician, Whitehorse, YT. claiming violation of Article 21, Part 1, Clauses 1,2 and 3.

As this grievance has been denied at Step 1 of the grievance procedure by Mr. B. Lodge, Area Plant Supervisor, Whitehorse, YT, having been initiated and rejected verbally, it is now progressed to your level for action. Hopefully for retraction, or at least an explanation to Mr. Maguire for the reason behind this Co. action.

It is a deplorable state of affairs, in addition to being cruel and inhuman, that an employee of 15 months service is released from service with no substantial explanation being supplied to him.

The trauma such action must engender in this employee, his wife and family can only be conjectured. It is incumbent upon the Co. as a responsible employer, to supply this employee with the reasons for his dismissal that he may prove them false, or conversely if substantiated to change his life-style to obviate the necessity of being placed in a similar situation in the future.

Should subsequent investigation prove that the action taken by the Co. in releasing Mr. Maguire was unfounded, or did not require such harsh action, this is a claim for all pay lost as a consequence from July 7/75 as contained under Clause 4, Article 21, Part 1.

Subsequently this was replied to by Mr. R.J. Wells under date of July 16, 1975 and this letter read as follows:

This is to acknowledge receipt of your letter dated 9 July 1975 submitting a grievance on behalf of Mr. B.J. Maguire, former Plant Technician, Whitehorse, Y.T.

Please be advised that with regret Mr. Maguire was released from service on 7 July 1975. At the time of his release he was advised by letter that subsequent to initially employing him, it was determined that he did not fully meet entrance qualifications for technical employment with the Company.

In addition he was informed that he was to be paid two weeks wages in lieu of notice of employment termination. Also, he was apprised of the fact that the Company, in recognition of the fact that he was originally hired at Edmonton, would assume the cost of transportation for himself and dependants, including the movement of his personal effects and household goods from Whitehorse to Edmonton.

Based on a discussion with you, in an effort to provide Mr. Maguire with a degree of income continuity and continued service, alternative Company employment, which he declined to accept, was offered to him.

We are unable to retract the action with respect to Mr. Maguire’s release or give him further explanation other than that which was furnished him as outlined above and, in view of this, the grievance is denied at the Step 2 level.

The grievance was further processed by a letter from Mr. Chas. H. Hammett, General Chairman of the Union to Mr. H.J. Clarke, Vice-President and General Manager, Canadian National Telecommunications, Toronto, Ontario under date of July 25, 1975 which read as follows:

I am in receipt of a grievance from Mr. F.H. Rogers, Yukon District Chairman, concerning the dismissal on July 7, 1975 of Mr. Bernard Maguire, Plant Technician, Whitehorse, Yukon Territory, from the services of the Canadian National Telecommunications.

In appealing the decision rendered at Step two of the grievance procedure, copy enclosed, the Union strongly protests the Company’s breach of our contract in the abrupt dismissal of Mr. Maguire by not observing and complying with the following Articles and Clauses of Agreement 8.1.

Article 5 – SENIORITY – Clause 1(a) New employees in the Technical classification will, upon completion of the six (6) month probationary period, establish seniority in the seniority grouping in which employed as of that date. They will also establish a general district seniority date equivalent to the date of their last entry into the service in a technical position covered by this agreement which may only be exercised in accordance with the provisions of Article 10.

Article 5, Clause 3 – The Company may release any employee on probation as set out above, for any reason and such dismissal will not be subject to review beyond the level of Regional Manager, i.e., step 2 of the grievance procedure.

Article 10 STAFF REDUCTION – Clause 2 – Before terminating the services of an employee who has established seniority and who has completed the required probationary period, the Company shall give such employee at least fifteen (15) days’ notice in writing (The rest of this Clause is not relevant).

Article 21 – DISCIPLINE AND GRIEVANCES – Part 1 – Discipline Clause 1 – An employee in a technical classification having six (6) months or more continuous service in the Company or an employee in a non-technical classification having ninety (90) days or more seniority will not be disciplined or discharged until his case has been thoroughly reviewed by the proper officers of the Company. Such review will be completed as quickly as possible.

Clause 2 – An employee may be held out of service in the event of a dismissable offence for a period not exceeding three (3) days pending a review of his case. He will be given at least one (1) day’s notice if required to make a statement and will be advised of the reasons for such review. An employee may, if he so desires, have the assistance of one or two fellow employees (who may be members of the Union Grievance Committee) when making a statement. On request, he will be furnished with a copy of such statement, and with his consent a copy will also be furnished the District Chairman.

Clause 3 – Any decision resulting in discipline will be rendered within fifteen (15) days from the date of completion of the review. This time limit may be extended by mutual agreement between the Company and the Union. An employee will not be held out of service pending rendering of decision except in case of a dismissable offence.

Clause 4 – Should the employee be exonerated, and no discipline imposed, he shall be paid for any time lost, with a maximum of one (1) day’s pay for each twenty-four (24) hours.

Mr. Maguire has been in the employ of Canadian National Telecommunications Approximately 11/2 years at the time of the dismissal.

You are aware that this matter has received national prominence and actually involves three Technicians being dismissed from their positions in C.N.T. with the Company refusing to divulge the reasons. It has been intimated that the dismissals were due to the failure to pass a “security clearance”.

It must be clearly understood that the Union is NOT against such “security clearances” being required, but we do stress the importance to an employee having his employment severed for failure to pass a “security clearance”, that he MUST be informed of the reasons.

The Union appeals the decision and demands –

1. Immediate reinstatement of Mr. Maguire to his former position.

2. Payment of all loss wages since his dismissal on July 7, 1975.

3. The Company’s adherence to Article 21, Part 1, Clause 1.2.3 and 4 at all times.

(Separate grievances will be filed concerning the other two dismissals).

(signed) Chas. H. Hammett

This letter was replied to by Mr. Clarke under date of August 22, 1975 which read as follows:

This has reference to your letter of July 25, 1975 progressing the grievance of Mr. Bernard Maguire, Plant Technician, Whitehorse, Yukon Territory to Step 3 of the grievance procedure.

Your letter alleges the dismissal of Mr. Maguire. In fact while Mr. Maguire was removed from the position of Plant technician at Whitehorse because he did not fully meet the requirements of the position, he was also offered alternative employment on one of our telegraph construction crews. Mr. Maguire declined the offer and his services were dispensed with. He received two weeks pay in lieu of notice and was subsequently moved at Company expense to Edmonton where he was originally employed.

Your further claim that the Company failed to observe and comply with the following clauses of the Collective Agreement:

Article 5 – Seniority – Clause 1(a)

This rule sets out the establishment of seniority and has been fully complied with in Mr. Maguire’s case. If you will refer to the respective seniority lists for the Yukon District, Mr. Maguire is shown has having a seniority date of Sept. 6, 1974 in the Plant Technician grouping and a general district seniority date of March 6, 1974. Under these circumstances there can be no possibility of violation of this article.

Article 5 – Clause 3

This rule is inapplicable in this instance in as much as Mr. Maguire is not an employee on probation.

Article 10 – Staff Reduction

This was not a case of staff reduction. Mr. Maguire was advised that he was being removed from his position as he did not meet the requirements of the position. He was offered employment which he declined to accept. We fail to see where this article has been violated.

Article 21 – Discipline and Grievances

Clause 1 – This clause has not been violated. The circumstances surrounding the removal of Mr. Maguire from his position were most thoroughly reviewed by the proper officers of the Company before any action was taken.

Clause 2 – There was no violation of this clause. There was no need to hold him out of service pending a review nor was there any need in this case to have him make any statement.

Clause 3 – This clause is inoperative in that it is not a discipline case and no discipline as such was ever applied.

Clause 4 – If clause 3 is inoperative it must follow that clause 4 cannot be involved.

In view of the above and in consideration of all the information available to the Company in the Maguire case we cannot agree to grant your appeal. The decision already taken by the Company must remain.

These two last letters constitute the grievance and the reply thereto.

Counsel for the Company called as its leading witness, Mr. H.C. Attrell who is the Security Liaison Officer for the Telecommunications Department. His liaison is with the Department of Supply and Services and the Canadian National Telecommunications management is directed by policies and procedures laid by the Director of the Security Services branch of the Federal Department of Supply and Services. In the Company, Mr. Attrell reports to the Manager of Operations.

The Telecommunications Division of the Company negotiates and audits contracts for services with the Department of Supply and Services who act on behalf of the Department of National Defence, the Department of External Affairs, the Royal Canadian Mounted Police and the Canadian Police Information Centre.

The Canadian National Telecommunications Department operates a network of communications in the Yukon and the Northwest Territories from Lady Franklin Point. There are a number of terminals through which information which originates in the north passes including the terminal at Whitehorse and the Whitehorse terminal receives coded messages for the Canadian Police Information Centre which is known as the C.P.I.C. network. This network is maintained by the Canadian National Telecommunications personnel and Mr. B. Maguire was employed with the Company first at Dawson Creek and later on at Whitehorse. His job was that of a Testing and Regulation Mechanic at Whitehorse through which the C.I.P.C. circuit coded messages pass.

The aforementioned agencies, that is, the Department of National Defence, the Department of External Affairs, the Royal Canadian Mounted Police and the Canadian Police Information Centre represented by the Department of Supply and Services define the level of security clearance of Canadian National Telecommunications employees who have access to classified information.

The Department of Supply and Services under the terms of their contract with the Company required that Mr. Maguire complete as soon as possible after his employment as a technician, a personal history form supplied by the Department of Supply and Services, a blank copy of which was filed with the board as an exhibit. This personal history form was completed by Mr. Maguire on or about the 14th of March, 1974 and then passed on to Mr. Attrell, the Company’s Security Liaison Officer. Shortly after, the grievor’s fingerprint form was received. These forms were forwarded to the Security Branch of the Department of Supply and Services with the usual transmittal form on or about April 30, 1974.

Mr. Maguire was also required to take an oath of secrecy. It is to be noted here that Mr. Maguire had previously been in the army and had been security cleared and in all probability was thus familiar with the procedure. The Oath of Secrecy form which was also filed with the Board and which had been completed by Mr. Maguire, states on the front that it is to be sent to the Director of Security Services and refers to excerpts from the Official Secrets Act which is on the reverse side of the form.

From Mr. Maguire’s evidence the Board learned that his rate of pay at the time of the termination of his employment was $218.55 per week.

In his evidence, Mr. Maguire said that nobody had told him that his employment was subject to security check and there was nothing on his employment form which he filled out for the Company about security. He said that he had worked on the C.P.I.C. circuit but never in the area of coding or decoding, and that he did not have access to the decoding machine which is in a separate location. He also stated in evidence that he had no knowledge of why he did not receive security clearance.

The grievance alleges that the Collective Bargaining Agreement has been breached by dismissing Mr. Maguire in breach of the conditions of : Article 5 – SENIORITY – Clause 1 (a); Article 5, Clause 3; Article 10 – STAFF REDUCTION – Clause 2; Article 21 – DISCIPLINE AND GRIEVANCES – Part 1 – Discipline Clause 1, Clause 2, Clause 3, Clause 4, and asks the Board to immediately reinstate Mr. Maguire to his former position and pay him all lost wages since the date of his termination of employment, that is, July 7, 1975.

The Company’s final reply to the allegations by the Union to the breach of contract denies that it was in breach of any of the clauses of the contract referred to above and particularly denies that Article 21 – DISCIPLINE AND GRIEVANCES – has been violated, stating that the circumstances surrounding the removal of Mr. Maguire was most thoroughly reviewed by the proper officers of the Company before any action was taken.

On behalf of the Union it was submitted by their counsel that the Collective Agreement when read as a whole, clearly implies that dismissal must be for just cause and that Article 21 – DISCIPLINE AND GRIEVANCES – Part 1, provides a detailed procedure which the employer must follow in the imposition of discipline and that the Company failed before terminating the employment of Mr. Maguire to follow the procedures set forth in Article 21 which applies to a dismissable offence.

The Company, on the other hand, submitted through its counsel that the termination of Mr. Maguire’s employment was not the result of a disciplinary finding. That the termination of Mr. Maguire’s employment was for reasons unconnected with his conduct and that because the Company was obliged to have persons employed on classified work be subject to a security clearance as required by the Department of Supply and Services and that once the Company received advice that clearance was not obtained, it had no choice but to terminate Mr. Maguire’s employment.

It is clear that Mr. Maguire’s probationary service was completed six months after his employment and thereafter he became a regular employee. It is also clear from the evidence that normally nine out of ten applications for security clearance are obtained within six to eight weeks after they are filed with the Security Branch. Mr. Attrell could not recall any instance where the decision as to security had not been forthcoming in as long a time as that required for the decision with relation to Mr. Chu and Mr. Maguire, but it was given in evidence that someone in the Company had phoned on or about the 6th of November, 1974 to inquire about the processing of Mr. Maguire’s security check and early in 1975 the Company was apparently informed that it must make certain that Mr. Maguire had no access to classified information. At this time the Company again asked the Security Branch of the Department of Supply and Services to again review the case. Finally after seeking a meeting in Ottawa with the Department of Supply and Services concerning Mr. Maguire’s situation the Company was told that no information would be available to them but that he had not received security clearance. In fact, there was no mention of the lack of security clearance in the letter to Mr. Maguire terminating his services although it became evident that this was the reason for the termination of his services. However, by reason of the Official Secrets Act, no one was in a position to disclose what was obtained in the directive which was received from Ottawa or to indicate to Mr. Maguire the reasons why his employment was terminated.

In the event of a lack of clearance, it is quite understandable why it is necessary for the Official Secrets Act to prevent the reasons for lack of security clearance to be given to any individual affected thereby and in this respect while it was very difficult for Mr. Maguire to be told that his employment was terminated without telling him why, it was essential for the Company to comply with the requirements of the Official Secrets Act and they were prohibited from disclosing to Mr. Maguire, even if they knew, why he had not received security clearance. Mr. Maguire was most concerned about the fact that he had not been given security clearance because he had apparently passed security clearance previously while serving in the Armed Forces. It is interesting to note that in the letter from the chairman of the Union, Mr. Hammett to Mr. Clarke, Vice-President and General Manager, Canadian National Telecommunications dated July 25, 1975 which processed the grievance to arbitration, Mr. Hammett states “… it must be clearly understood that the Union is not against such “security clearance” being required, but we do stress the importance to an employee having his employment severed for failure to pass a “security clearance”, that he MUST be informed of the reasons.”

At the arbitration hearing, the Union pressed the Company’s witness strongly to disclose the reasons for the decision not to grant security clearance to Mr. Maguire and just as strongly the Company’s witness pointed out that while they did not know the reasons, in any event they were prohibited by the Official Secrets Act and the regulations thereunder from disclosing any such reasons.

At the time the Company terminated the employment of Mr. Maguire it did try to find him alternative employment in his line of work based on his seniority in his seniority district, but no such work was available. It then offered him employment as a labourer at a lower rate of pay than he was receiving and he declined.

Under the management’s rights clause in the Collective Agreement the Company has the right to terminate the employment of an employee as a general function of management, but such termination must be in a manner which is not inconsistent with the terms of the Collective Agreement. The termination of Mr. Maguire’s employment was not for any disciplinary reason and therefore is not governed by Article 21, part 1, of the Collective Agreement.

A review of a number of arbitration cases makes it clear that a Company is entitled to release an employee from employment who by reason of recurring intermittent illness is incapable of performing his work and in such instances the release has nothing to do with any alleged disciplinary offence on the part of the employee. Similarly, a truck driver may find his employment terminated if by reason of health or for other reasons he is unable to secure a driver’s license which is required if he is to carry on his work. It may also be that an employee might find his employment terminated where a requirement of employment is that the employee be bonded and when through no fault of his work performance he finds that he is unable to secure the necessary bonding.

On the facts of this case where the Company is engaged in selling its services in the communication field finds that as a condition of selling its services it must only employ a technical employee who has certain qualifications and if the employee fails to achieve these qualifications, even though they may not be directly related to his ability to perform the required services, the Company can no longer continue to employ him.

In this case, if a Board of Arbitration were to find that the employee should be reinstated in his work, the contract with the Department of Supply and Services would be liable to cancellation and should this happen the Company would lose business and be unable to carry on its normal activities and thus be subjected to a loss which might involve other employees losing their jobs.

The Board is of the opinion that the Company has the right to unilaterally establish qualifications for its employees, but that such regulations relating to qualifications must satisfy the Board of Arbitration that they are reasonable in relation to the facts. In this case, the Company’s decision to require security clearance as a condition of continued employment must be considered reasonable in the context of the fact that the employee concerned was being employed at a terminal which received through the C.P.I.C. network classified messages, although they were in code.

However, even if the Board had found the Company in the circumstances of this case had established qualifications for continued employment that are reasonable, the fact that such qualifications may be reasonable and may unilaterally established does not relieve the Company of bringing such regulations to the attention of an employee at the time of hiring or within some reasonable time thereafter. Although Mr. Maguire may have been aware that his continued employment with the Company depended on his receiving a security clearance, the fact was not brought to his attention when he was hired or at any time thereafter and when he did not receive the necessary security clearance his employment was terminated.

In the Board’s opinion, the fact that the Company did not bring the regulation concerning the security clearance to the attention of Mr. Maguire at the time of hiring or at some later time does not make the regulation of no effect, but it does impose upon the Company an obligation to leave the employee in the same position he would have been if the regulation had been brought to his attention in the proper way and at the proper time.

It is apparent from the evidence that at the time Mr. Maguire’s employment was terminated his seniority was such that it was not possible for him to be transferred to any other non-classified technical work. It is also clear that by reason of the nature of the continuing contract with the Department of Supply and Services, there was little likelihood at any foreseeable time in the future that technical work for which he was qualified would become available.

Even if it were to be found that the Company under the Collective Bargaining Agreement has not the right to establish and enforce unilaterally regulations requiring the termination of Mr. Maguire’s employment simply because he did not have the qualification of having security clearance and even if the Board were to find that under the Collective Agreement an employee who has passed his probationary period and who is dismissed for non-disciplinary reasons has under the contract, the right to be reinstated unless the Company can demonstrate that the dismissal is for what is ordinarily described as “just cause”, there are other considerations to be considered with relation to this grievance. This grievance has implications beyond that of an individual asserting that his employer has breached the Collective Bargaining Agreement in terminating his employment.

It was stated earlier, that if the Board required the Company to reinstate the grievor, that their contract with the Department of Supply and Services would be subject to cancellation and as a result of this, due to loss of business, other employees might lose their employment and the services required in the interests of the security of the nation would be interrupted and serious consequences might flow therefrom.

The Board therefore concludes that the security of the nation as seen here when the Department of Supply and Services becomes the determiner of certain conditions under which classified services must be performed by employees who have been given security clearance, must take precedence over collective bargaining agreements even though the collective bargaining agreements may be silent with respect to security clearance conditions to be imposed upon employees. In other words, a Board of Arbitration must in the circumstances of this case interpret management’s function to include compliance with the security requirements of a contract for services by a government agency and a Company should not be limited to governing job requirements which are ordinarily interpreted as being confined to employment conditions.

Thus, the Board has found on two grounds

(1) the Company had the right to establish regulations relating to qualifications of employees and to do this unilaterally.

(2) the Company had the right to interpret management’s functions as including security requirements of a department of the government.

This is, however, not to find that such rights can be exercised in total disregard of the employee’s rights acquired under the Collective Bargaining Agreement. The Board is of the view that the Company had the right to terminate the employment of the grievor, Mr. Maguire, but that in the exercise of such right the Company was required to give reasonable notice to the employee of the regulation which gave the employer the right to terminate the employment at a time when it became known to the employer that the employee lacked security clearance. In the exercise of the management functions of the Company, which the Board has found includes compliance with security requirements of a contract with a government agency, the board finds this right should only be exercised in a reasonable fashion, taking into consideration that the employee had acquired certain seniority at the time of the termination of his employment and had passed his probationary period of employment.

The board views these situations as being similar to the requirement that an employer under the common law in the case of an indefinite term of hiring, cannot summarily dismiss an employee without just cause unless upon reasonable notice of payment in lieu thereof, of a reasonable sum of money relating to the length of service and the nature of the employment.

The Company in terminating Mr. Maguire’s employment gave him two weeks pay in lieu of notice. This means that the employee must secure other employment and after being employed some sixteen months, he would require a reasonable time to do this.

AWARD

The Board finds that while the Company had the right to terminate the employment of Mr. Maguire, it could only do so upon paying the employee in lieu of reasonable notice, a sum of money at the rate of pay he was receiving at the time of his termination, equal to seventeen (17) weeks pay. Mr. Maguire has been paid two (2) weeks pay.

Therefore, the Board’s decision is that the Company is required to pay Mr. Maguire, fifteen (15) weeks pay at the rate of pay he was receiving at the time of his release from employment.

Dated at Belleville, Ontario this 14th day of April, 1976

(signed) Judge J.C. ANDERSON

CHAIRMAN

I consent I dissent

(signed) S.E. DINSDALE (signed) C. W. PETHICK

COMPANY NOMINEE UNION NOMINEE

In support of the findings, the Board of Arbitration has reviewed a number of arbitration cases and has read a number of articles which are as follows:

1. Re International Woodworkers of America and Canadian Gypsum Co. Limited – Volume 19, Labour Arbitration Cases, Page 341, Chairman P.C. Weiler.

2. Re St. Anne-Nackawic Pulp and Paper Co. Ltd. and United Paperworkers International Union, Local 219, 5 L.A.C. (2d) 1974, Page 397.

3. Re Oshawa General Hospital and Nurses’ Assoc, Oshawa General Hospital, 8 L.A.C. (2d) 1975, Page 329.

4. Regina v. Board of Arbitration, Ex parte Stevens, New Brunswick Supreme Court, Appela Division, 12 D.L.R. (3d) 1970, page 284.

5. Re Motor Transport Industrial Relations Bureau of Ontario and Teamsters Union, Local 141, E.E. Palmer, Chairman, 3 L.A.C. (2d) 1973, page 275

6. Liquid Carbonic Corp. 22 LA 709. This is an American case, but it is very relevant to the grievance before the Board.

7. Report of the Royal Commission on Security (Abridged), June 1969. Chairman, M.W. Mackenzie.

8. Arbitration and Security Risk Disputes, Chapter 4 of Volume 10, The Arbitration Journal, New Series, U.S.A., Page 13, by Benjamin C. Roberts.

9. Article in the Yale Journal, May 1953 referring to Loyalty and Private Employment.

10. DeHavilland Aircraft case (14 L.A.C. 290) Professor Laskin as he then was, Page 294

11. Standard Modern Tool case (O.B. Shime) 21 L.A.C. 443.

12. Barber Ellis case 19 L.A.C. 163 (Schiff).

13. Roadway Transport Limited 9 L.A.C. (2d) 429 (O’Shea).

DISSENT

I have to dissent from the majority report in this case. After hearing the evidence at the hearing on January 27th, 1976, in my opinion the questions before the Board were:

1 – Was there a violation of the Collective Agreement ?

2 – Was the employee unjustly dealt with ?

I have concluded after hearing the evidence that the agreement was violated and that Mr. Maguire was treated unjustly. The Union claims that management violated Article 5, clause 1 of the Collective Agreement.

In this case in my view, the Company ignored Article 5 entirely and actually treated Mr. Maguire on the same basis as they would treat any employee on probation, although he was well past the probationary period, was considered a permanent employee, having served 18 months with the Company.

It is of considerable concern to me that evidence proves that little or no effort was made by the officers of the Company to assure that clearance information was obtained before the probationary period ended.

In fact Mr. Attrell, the Security Liaison officer admitted under questioning that perhaps 24 cases out of 250 to 300 security clearances in a year, went beyond the probation period.

That demonstrates that insufficient attention is being paid to the necessity of trying to get the Department of Supply & Services to speed up the process, so that the employees could be cleared before the end of their probationary period. Had this been done in this case there would have been no grievance before the Board. In fact Mr. Attrell’s evidence showed that while Mr. Maguire signed his papers that were required 11 days after being hired, and it was six weeks before he was fingerprinted and his papers sent in.

All of this shows that a lack of effort on the part of the Company officers involved to speed up the processing of applications to live within the requirements of the Collective Agreement regarding probation. The whole procedure should be speeded up so as to avoid these kind of grievances.

The Union also claims that Article 21, Part 1, clauses 1, 2, 3, & 4 were violated.

In my opinion the Board’s main function was to decide whether or not the Agreement was violated, not the reasons for a violation.

Clause 1 of Article 21, specifies that an employee will not be discharged or disciplined until his case has been thoroughly reviewed by the proper officers of the Company. The majority award emphasizes the position taken by the Company, that Mr. Maguire was not disciplined, and therefore Article 21 doesn’t apply.

However, this seems to overlook or disregard the fact that the article also deals with discharge.

There can be no possible doubt that Mr. Maguire was discharged without any charges being made against him, and without any reason being given. He was not even told that it was as a result of failure to obtain security clearance. In fact he was given the latter information for the first time at the hearing on January 27th.

Article 21, Clause 1 specifies that an employee will not be discharged until his case has been thoroughly reviewed by the proper officers of the Company. Then the article goes on to specify other provisions that must be followed.

The fact that he was discharged without knowing why or having an opportunity to defend himself is evidence enough of violation of Article 21. This action also constitutes a grave injustice to the employee concerned.

Having had security clearance in the army and having been assigned during his probationary period to two locations to clear trouble, which he knew required security clearance, he said in his evidence, that he assumed that he had been cleared. Thus it came to him as a complete surprise and shock.

I am concerned also, with the fact that the same situation could occur with many long term employees. As more and more police and government services require telecommunication service, such facilities could be added to duties performed by long term employees who have not had security clearance. Thus they could find themselves in the same situation as Mr. Maguire. We are therefore dealing with a principle that could involve any number of employees now in service. Mr. Maguire’s duties as a T & R Technician was not as stated on page 2 of the majority award, monitoring and regulating the incoming code messages, but to test the equipment and to regulate the current level going through the facilities and regulate the level of signals.

In describing his work Mr. Maguire testified, “ If I receive a trouble call, I first use the meter to check the current level and level signals”. He said the regulating aspect of his work was “turning dials to raise or lower levels of current on phone lines or to raise or lower levels on Micro Wave equipment”.

In fact the evidence shows definitely that there was no way Maguire, through his work, could obtain any information that went over the circuits he was working on.

While one has to agree that the National interest has to be protected I believe in the kind of work required by Mr. Maguire that the security risk features are highly exaggerated, because there is no way that Mr. Maguire could obtain secret information. It is therefore in my opinion a clear case of denial of natural justice and could in the future involve many other employees in a similar situation.

In conclusion, I consider that it has been well established that:

1 – There was a violation of the Collective Agreement.

2 – That Mr. Maguire was treated unjustly .

3 – That in accordance with the provisions in the collective agreement Mr. Maguire should be reinstated and compensated for all lost time.

(signed) C. W. PETHICK

UNION NOMINEE