AH - 207
IN THE MATTER OF AN ARBITRATION
THE CANADIAN TELECOMMUNICATIONS UNION,
DIVISION NO 1 OF THE UNITED TELEGRAPH WORKERS
CANADIAN PACIFIC LIMITED
IN THE MATTER OF THE GRIEVANCE OF J. M. Zawoyski
Sole Arbitrator: Stanley M. Beck
There appeared on behalf of the Company:
David Flicker - Counsel
There appeared on behalf of the Union:
Paul J. J. Cavaluzzo, Counsel
A hearing in this matter was held at Toronto, Ontario, on the 6th day of April, 1978.
This grievance concerns an investigation and subsequent discipline of J. M. Zawoyski (“Zawoyski”) by his employer Canadian Pacific Limited (Telecommunications Department) (“the company”). The investigation and discipline were pursuant to Article 25.01 of the Collective Agreement between the company and the Canadian Telecommunication Union, Division 1 of the United Telegraphs Worker (“the union”). Article 25.01 reads as follows:
“No employee shall be suspended (except for investigation), discharged or disciplined, until his case has first been investigated, and he has been proved guilty of the offence charged against him. The employee may have the assistance of a co-worker if he so desires. Should no decision be reached within ten (10) days, he shall receive his regular pay until a decision is reached. If an employee is found blameless in the matter under investigation he shall be paid regular rates for all time lost and necessary expenses while attending such investigation (if away from his regular place of employment). And reinstated.”
On February 25, 1975 Zawoyski received a notice of suspension for insubordination in failing to answer written questions that were put to him concerning an incident involving a breakdown of the Data Crown circuit on February 11, 1975. An “investigation” pursuant to article 25.01 of the collective agreement of Zawoyski’s alleged insubordination took place on March 3, 1975. As a result of this investigation Zawoyski was found guilty of insubordination and a discipline imposed of the loss of five days pay and ten demerit marks debited on his record (the company has a merit-demerit system under which an employee who accumulates 60 demerit points is subject to dismissal. If an employee has a clean record for twelve months, twenty demerit point are deleted from his record if it in fact contains any demerit points.) Subsequent to the investigation Zawoyski filed a grievance alleging (1) that the discipline was unjust and (2) that the conduct of the investigation was contrary to what was required by article 25.01 thus rendering invalid the consequent discipline.
As the hearing was concerned entirely with the second point, that is with the conduct of the investigation, it is not necessary at this stage to recount the complete facts of the case except as they relate to the conduct of the hearing. In summary it can be said that the position of Zawoyski with respect to the investigation was that it was conducted in such a manner as not to have been an investigation at all as that term is used in the context of article 25.01 and that therefore the discipline resulting from such investigation was void. In essence the position was that as there was no investigation there could be no valid discipline imposed.
Counsel for Zawoyski put his case for lack of proper investigation on five separate grounds:
1) No transcript or other adequate record of the proceedings was kept;
2) proper assistance from Zawoyski’s co-worker was no allowed during the course of the investigation;
3) inadequate notice was given of the second charge which Zawoyski was required to answer;
4) Zawoyski was denied the right to cross-examine witnesses at the investigation;
5) Zawoyski was denied the right to call his own witnesses at the investigation.
Before dealing with each of these objections in turn it is necessary to refer back to Article 25.01 as it is the Article which forms the basis for the investigation and the subsequent discipline. First, it should be noted that an employee may be liable to (1) suspension, (2) discharge, or (3) discipline as a result of an investigation. He may not, however, be subject to any of these three penalties “until his case has first been investigated, and he has been proved guilty of the offence charged against him.” It will be noted that the language of being “proved guilty of the offence charged” is more appropriate to trial than it is to an investigation. So also is the provision that the employee may have assistance at the investigation - in this case the assistance of a co-worker. Clearly Article 25.01 cannot be said to contemplate a judicial trial or even a quasi-judicial administrative hearing with the full range of procedural safeguards that the common law requires in either such case. But just as clearly the investigation that is required by Article 25.01 is a from of hearing under which an employee who is charged with an offence and who is found guilty may at the worst lose his job and at the least be disciplined. In such circumstances an employee is entitled to demand that certain fundamental aspects of fairness be adhered to in the conduct of the investigation. It is even more important when, as is quite properly the case, investigation is initiated and conducted by the employer on the employer’s premises. The duty to act fairly that is imposed upon anyone who holds a hearing which may deprive an individual of important personal rights varies widely according to the context of the hearing and the range of sanctions that may be imposed. It would, in my opinion, be wrong to attempt to judicialize this kind of employer-employee investigation. Nonetheless there is an area of fairness that fall far short of full judicialization of such a hearing that must be adhered to where an employee’s fundamental rights are at stake. It is in this context that I now proceed to investigate each of Zawoyski’s five objections.
1) No transcript or adequate record o f the hearing was kept
The hearing was conducted by H. J. Vinette (“Vinette”) who is acting Regional Manager (Eastern Region) of the company. There is no question that Zawoyski asked that a verbatim transcript be kept of the proceedings. Vinette told Zawoyski that he was conducting the investigation and that he would ask the questions and record the answers. Zawoyski then says that he asked for a tape recorder to be brought in to tape the proceedings. According to Zawoyski this was also denied and Vinette repeated his previous answer. This was substantially confirmed by Vinette who said that in the previous ten to fifteen investigations he had conducted under Article 25.01 there had never been a verbatim transcript nor tape recording kept. His practice was to ask the questions, listen to the witness’s answers and then repeat for the witness the answer that he had written down to ensure as far as possible that he had fairly recorded the answer. A good deal of difficulty in this case arose from the fact that there was no transcript and that there was continuous and at times heated interchange between Zawoyski and Vinette as to exactly what Zawoyski’s answer was. It is fair to say that Vinette is a very straight forward personality, used authority and used to receiving fairly clear, straight answers. Zawoyski, on the other hand, is a difficult, verbose and at times evasive witness. It is little wonder then that the hearing which commenced at 1.30 p.m. in the afternoon lasted until approximately 10.00 p.m. with a good deal of heated interchange between Vinette and Zawoyski. It would be desirable in such an investigation where the company, as is its right, has the entire conduct of the investigation in the sense that it does a pre-investigation of the facts, prepares the questions to be asked and then asks the question and records the answers, to have an independent transcript kept - particularly when an employee may be discharge as a result of the investigation. While I think that this something that should be considered by the parties, I do not think that it is a matter standing by itself that would negate the investigation in the sense that a fair hearing had not been held. Indeed, it should be noted that there are administrative bodies and tribunals and indeed some inferior courts which every day hold hearings which affect the rights and property of individuals that do not have an independent record made. When there is a statutory right of appeal from the decision o f the court or tribunal it is almost invariably the case to require a verbatim transcript. Such is no the case here, and I do not think it can be said that failure to have an independent transcript or recording kept of an investigation under Article 25.01 is such a defect in the fair conduct of the investigation as to render the investigation nugatory.
2) Denial of proper assistance from a co-worker
Article 25.01 states that “an employee may have the assistance of a co-worker if he so desires.” Zawoyski had the assistance of J. D. Parnell who is a Vice-President of the union. It is fairly clear from the record that was kept by Vinette and produced at the hearing of this grievance, and from Parnell’s testimony along with that of Zawoyski and Vinette, that Parnell tried to intervene in the heated exchanges between Vinette and Zawoyski. As I have indicated above, Vinette is a straightforward rather dominant individual whereas Zawoyski is a verbose and difficult witness. He felt that he could not always give the short, straight answer that Vinette required, and when Vinette read back his answers to him Zawoyski often launched into lengthy corrections. Parnell attempted to assist by sometimes rephrasing either the question or the answer and generally trying to counsel Zawoyski. The result was a heated and continuing interchange between Vinette and Parnell which at one stage reached the point of Parnell withdrawing altogether from the hearing. Parnell also objected to the way Vinette was leading such witnesses and “putting answers in their mouths.” On an investigation such as is contemplated by Article 25.01 it is clear that the co-worker performs somewhat the same function as counsel at a hearing or trial. It is equally clear however that he is not counsel and is not there to conduct the case on behalf of the employee. He is there, however, to assist the employee and he is entitled to a good deal of latitude in rendering such assistance and ought not to be hindered by the person conducting the investigation. In this regard I would quote from the Award of J. D. O’Shea, Q. C., In The Matter Of Canadian National Railway and The Railway Employees Department, Division No. 4, Grievance of J. A. Marchand, at page six:
“I therefore find that the investigation was conducted by the company in accordance with the provisions of the collective agreement. However, it should be noted that the presence of the union representative at such investigation meetings was not that of a mere observer. The union representative has the right to ensure that all the relevant facts are presented for the company’s consideration and also has a right to endeavor to mediate any potential dispute with a view to avoiding the imposition of the penalty. The right is not only implicit in the provisions of the collective agreement but it is also inherent in the union’s position as the sole bargaining agent of
the employee it represents.”
I would adopt Mr. O’Shea’s words as to the presence of a co-worker under Article 25.01. The tenor of evidence, and it is difficult to sort out exactly what happened at the investigation, is that Parnell was not accorded the full opportunity that he ought to have been to assist Zawoyski. I cannot say, however, that there was such interference with the assistance that he attempted to render to Zawoyski, or that he was so entirely blocked from assisting Zawoyski, that the investigation ought to be set aside for that reason. To repeat, I do not think Parnell was given the latitude to assist that he ought to have been given and that a co-worker should be given in future investigations under Article 25.01, but I do not find such a complete hindrance or blockage of the co-worker’s role in this investigation as to set it aside for that reason.
3) Inadequate Notice
With respect to the charge of insubordination, Zawoyski received a letter informing him of his suspension for insubordination on Tuesday, February 25, 1975. On Thursday, February 27th, Zawoyski was sent a notice of hearing with respect to this matter. The second and last paragraph of this notice on February 27th also indicated that Zawoyski would be required to answer questions concerning his handling of the Data Crown circuit breakdown. In other words, the investigation was to be concerned not only with an allegation of insubordination but also with a further allegation of the handling of the breakdown itself. Zawoyski objected that this was not sufficient notice of the case and that he had to meet at the hearing which was held March 3rd. While this was clearly a rather sloppy way of informing Zawoyski of matters which were to be under investigation, I cannot say it was such inadequate notice as to constitute lack of notice that would be grounds for setting the hearing aside. It clearly would have been preferable if on the initial notice of suspension Zawoyski have been given full details of those matters which would be investigated and which were the cause of his suspension. As it was, he was informed of the first matter with a notice of suspension on the Tuesday, and informed of the second matter when he received the notice of hearing on the Thursday. My reading of the cases on inadequacy of notice leads to the conclusion that a degree of latitude is allowed in these matters and that the primary concern in that the affected individual has adequate notice eof the charges against him so that he may be able to prepare his case. Although irregular, I find the notice contained in the Thursday letter was adequate to allow Zawoyski to prepare his case on this ground. (There was the additional factor here that Zawoyski never did open the letter of Thursday , February 27yh - the failure of Zawoyski to open the letter for whatever reason cannot avail him if the letter was in fact delivered to him which it was, and if in fact it constituted adequate notice which I find it did).
4) Denial of right to cross-examine witness
During the course of the investigation Vinette called witnesses for the company with respect to the allegation against Zawoyski. Zawoyski asked for a chance to cross-examine these witnesses which was denied by Vinette. Vinette told Zawoyski that he would have an opportunity to make a full statement at the conclusion of the investigation but that he would be given no right to cross-examine witnesses. When Vinette was asked why he did not permit Zawoyski to cross-examine witnesses at the investigation he replied that such cross-examination would “only have resulted in an argument and would have served no purpose.” As I have said above, it is my opinion that it would be a mistake to impose the procedural requirements of a trial on an investigation such as is required by Article 25.01. On the other hand the context of Article 25.01 shows that what takes places is something more than an investigation. It is in fact a hearing on a charge in which if an employee is “proved guilty” he may be subject to discharge, discipline or suspension. In these circumstances the investigator, particularly when he is the company’s own senior officer who has prepared the question to be asked on the basis of prior investigations within the company, must adhere to minimum standards of fairness at the investigation itself. However far beneath the standards required for a trial such an investigation may be allowed to fall, minimum standards of fairness require that the employee under suspension have the right to cross-examine the witnesses presented by the company. It is no answer to say that Zawoyski was given the opportunity, which he took full advantage of, to state his case end of the investigation. The case against Zawoyski is proved, at least partially, by the witnesses called at the hearing and he is entitled to challenge their evidence by cross-examination. This serves quite a different purpose, and may achieve a far different result, that a statement by the employee himself. An employee who is under investigation under Article 25.01 ought to be given full opportunity to test evidence of the company’s witnesses. There is nothing in the nature of the investigation here, or in the relationship between the parties, to preclude the right of cross-examination. To repeat, the sanction here is possible deprivation of one’s job and in such circumstances it is a denial of the right to a fair hearing to not allow an employee under investigation to cross-examine the witnesses called by the company. On this ground alone I hold that there was not a proper investigation under Article 25.01 and that any discipline imposed consequent upon such an invalid investigation is itself invalid,
5)Denial of right to call witnesses
There was a dispute as to whether Zawoyski requested the right to call witnesses. It was the evidence of Zawoyski and Parnell that such a request was made. Vinette was of the opinion that such a request was not made although he was frank to state that he could not recall but that it was his best recollection that the request was not made. In these circumstances I accept that r request to call witnesses was made and was denied by Vinette. It is relevant to note that Vinette was quite frank to state that if such a request had been made he certainly would have denied it. For the reasons noted above with respect to cross-examination, I find that an employee under suspension and subject to the type of investigation that takes place under Article 25.01 is entitled to call his own witnesses and that the denial of this right is sufficient by itself to render he investigation a nullity. It is particularly vital that an employee be entitled to call his own witnesses when, as was the case here, employees who are questioned by the company as part of its pre-investigation is preparing the questions for the investigation, may not be called as witnesses by the company at the investigation itself. If a person is in effect on trial for his conduct on the job as a result of which he may lose his employment, minimum rules of fairness require that he be given an opportunity - the same opportunity that the company has - to call witnesses in support of his case. This right was not granted here and is sufficient to render the investigation a nullity.
In conclusion, the denial of the right to Zawoyski to cross-examine the witnesses at the investigation and the denial of the right to call his own witnesses constitute separately and together the denial of a right to a fair hearing which I find is required by Article 25.01, with the result that the investigation is held to be a nullity. The subsequent discipline is therefore set aside and the grievance allowed.
Dated this 12th day of February, 1976 Stanley M. Beck