IN THE MATTER OF AN ARBITRATION BETWEEN:
ALGOMA CENTRAL RAILWAY INC.
(Hereinafter called the EMPLOYER)
- AND -
UNITED TRANSPORTATION UNION
(Hereinafter called the UNION)
[Grievance of Mr. M. Rivard]
SOLE ARBITRATOR: E.E. PALMER, Q.C.
APPEARING FOR THE COMPANY: B.A. CHRISTEN and others
APPEARING FOR THE UNION: D. ELLICKSON and others
- AWARD -
The present arbitration arises out of the dismissal of Mr. M. Rivard from the employment of the Algoma Central Railway on 16 March 2001. The letter terminating his employment reads as follows [see Exhibit 1.5]:
Thank you for attending the formal investigations that were held on Monday March 5, 2001.
At those investigations the events surrounding the individual charges were fully explored. After carefully reviewing the transcripts from these investigations, I have formed the opinion that each of the investigations clearly establishes your culpability.
· You failed to protect your assignment on January 20 and 21, 2001, yet claimed pay for the days. This was deceptive and fraudulent and a failure to meet the requirements of your position.
· You claimed to be sick and did not fulfill your responsibilities on January 20 and 25 and 26, 2001, however you attended a hockey game out of town. You were previously disciplined for a similar incident in June 2000 at which time you were warned that future incidents of this nature would result in formal discipline.
· You unlawfully expelled a chain saw from your train in an attempt to steal company property on January 30, 2001.
· You claimed to be sick and did not fulfill your responsibilities on February 10, 2001 however were again observed at a hockey game out of town.
Your actions are a serious breach of the conduct standards expected of you as an employee. The policy or the Company is to treat all employees as partners in the operation of Algoma Central Railway. For this relationship to be successful, all employees must know and accept their responsibilities and carry them out to the best of their abilities. When employees do not live up to their responsibilities, the success of this relationship is jeopardized.
Your conduct in any one of the above detailed incidents is by itself just cause for termination. Your actions demonstrated to me that you have repeatedly violated the behavior required to fulfill the responsibilities of a conductor and it is inappropriate that you remain in our employ. Because Of these reasons, I am dismissing you from the employment of Algoma Central Railway effective immediately. …
This decision was unacceptable to the Union and consequently such was grieved by them in a letter dated 27 March 2001 [see Exhibit 1.6]. As the parties were unable to resolve this matter during the grievance procedure, the present arbitration was necessitated. In this regard, the parties agreed to have the undersigned arbitrator hear this matter. Subsequently, dates were set for its hearing. The first four days of the hearings – 29 October 2001, 27 and 28 February 2002 and 29 May 2002 – were heard in Sault Ste. Marie, Ontario. The final day of hearing on 1 October 2002 was heard in Mississauga, Ontario. On those occasions, it being agreed the undersigned had jurisdiction to hear this case, the parties were afforded an opportunity to present evidence and argument. My award follows.
If should first be noted that there were essentially two aspects to this case. In this regard both parties took opposing positions regarding the existence of just cause to terminate the grievor on the merits of this case. As well, the Union urges that the Company had acted contrary to the governing Collective Agreement in the assessment of this penalty to Mr. Rivard in such a way that their decision was null and void. In my opinion, it is useful, therefore, to turn initially to the second of these issues.
WAS THE ASSESSMENT OF THE PENALTY CONSISTENT WITH RELEVANT PROVISIONS OF THE COLLECTIVE AGREEMENT?
First, it is useful to set out the governing provisions regarding the imposition of discipline under the governing Collective Agreement that touch on this case. These read [see Exhibit 2]:
1.01 The purpose of this Agreement is to provide orderly collective bargaining relations between the Employer and its employees covered by this Agreement through the Unions signatory hereto, to secure prompt and fair disposition of grievances …
. . . . .
INVESTIGATION & CORRECTIVE ACTION
9.01 a) An employee shall not be disciplined or dismissed without his having first had a fair and impartial investigation and his responsibility having been established. An employee may, however, be held off for such investigation for a period not exceeding five (5) days and when so held off shall be notified in writing of the charges against him. The employee shall be given forty-eight (48) hours notice of such investigation. Included in such notice will be a list of those required to attend and a list of material and witnesses available to be brought forth at that time.
b) An employee shall be assisted at the investigation by one duly accredited representative, unless the employee directs otherwise in writing.
c) All material and necessary witnesses must be notified to appear. An employee shall have the right to be present during the examination of any witnesses whose evidence may have a bearing on his responsibility or be accorded the right to read the evidence, if any, of such witness at the outset of the investigative hearing and offer rebuttal thereto.
d) The employee and the Union shall be given a copy of tapes and/or transcripts of evidence taken at the investigation.
e) A decision shall be rendered within twenty-one (21) calendar days following the date of completion of the investigation, unless otherwise mutually agreed.
f) If the employee considers the decision rendered is unjust, an appeal may be made, commencing with Step 2 of the grievance and arbitration procedure.
g) If the final decision decrees that charges against an employee were not sustained, the record shall be cleared of the charges; if suspended or dismissed, the employee shall be returned to former position and paid for all time lost at the basic rate of pay.
9.02 Nothing contained herein shall be construed to prevent the employee from voluntarily participating in an informal process which may be established by the Employer and amended from time to time to handle grievances or matters which would otherwise be subject to disciplinary hearings, provided that the employee shall not be in any way pecuniarily affected or be given time off without pay, or discharged, unless he voluntarily would consent to same. The employee may, if he so desires, have a union representative or other employee of his choice present with him in the handling of such matters with officers of the Employer.
The position of the Union generally is that compliance with the above provisions is mandatory and, thus, failure to follow them by the Employer in the administration of discipline, leads to the result that such discipline is void. Alternatively, if such a result does not necessarily occur, such errors will still vitiate the discipline in issue unless such are of minimal impact on the disciplinary process.
Here the Union argues that the Employer made five crucial errors in the investigation of the Grievor’s alleged infractions: (1) that there was delay beyond the time limits created by the Collective Agreement; (2) that provisions regarding notice in Article 9.01(a) were not followed; (3) that the Grievor was held out of work for more than the five days contemplated under the same provisions; (4) that the Union was not provided with relevant evidence in this case and denied presence when a relevant witness was interviewed contrary to Article 9.01(c); and, finally, (5) that the investigation of this case against the Grievor was not carried out in a fair and impartial manner. Both collectively and separately, it is urged, such should lead to a ruling that the discipline in this case should be declared null and void.
The general approach of the Employer was to deny that these provisions were mandatory and, in any event, the factual basis for these five individual issues were not supported by the evidence. Given the foregoing, it is useful at this point to set out the chronological events in this case as a backdrop to the parties’ detailed arguments.
THE CHRONOLOGY OF EVENTS
Mr. Rivard is a Conductor in the Employer’s Transportation Unit with some twenty-three years of seniority. His work, as relevant to this case, is to “protect the Spare Board”. This means on days when scheduled for this work he is to keep himself available to actually come in to work on two hours notice if his presence there is needed. He is paid whether he is called in to work or not. Two of the incidents relied upon by the Employer relate to situations where, in their opinion, the Grievor was not available to “protect the spare board” when scheduled to do so yet he still claimed pay for these days [20 and 21 January 2001]. Again, on 20, 26 and 27 January 2001 and 10 February 2001, it was the position of the Employer that the Grievor claimed to be too ill to work and claimed payment for these days when, in fact, he was able to attend hockey games in which his son was participating.
The other issue depended upon by the Employer, as indicated in his letter of dismissal, relates to an alleged attempt to steal property of the Employer on 30 January 2001.
Parenthetically, it might be pointed out that, except for the latter issue, there exists little doubt as to what occurred in these cases as Mr. Rivard was not called as a witness.
20 and 21 January 2001: To return to the chronology of this case, it began on 20 January 2001 and continued the next day as well. On those dates the Grievor, while scheduled to “protect the spare board”, was seen in Brantford, Ontario, watching a hockey tournament where his son was playing. Naturally, he was in no position to come in to cover the spare board if he was so needed.
22 January 2001: On 22 January 2001, Ms. J. Davey, the Manager of Human Relations, who had seen Mr. Rivard in Brantford, informed Mr. K. Ross, the Employer’s Operations Manager, of this fact. He decided to do nothing until he saw if the Grievor would claim pay for this day. Such, if he did, would appear on his time card which would be filed in early February.
26 and 27 January 2001: On these occasions again Ms. Davey saw the Grievor at a similar hockey tournament in nearby Thesalon after calling in sick.
29 January 2001: As in the Brantford incident, again Ms. Davey informed Mr. Ross regarding what she saw. Again, he took no immediate action.
30 January 2001: On this day the “chain saw” incident occurred. Without dilating on the facts of this case, Mr. Rivard and a fellow employee, Mr. M. Hargis, were working as a crew on a train at Hawk Junction Station as Conductor and Engineer respectively. In the early morning of that date they took their train to S.S. Marie. Shortly thereafter a foreman at Hawk Junction, Mr. R. Kennis, reported a chainsaw missing from that Station to his immediate supervisor, Mr. K. McRae. The latter telephoned Mr. A. Munn, the Maintenance Manager in S.S. Marie, and told him of the loss. Munn asked who McRae thought took the chainsaw and received the reply that the only people who had been around at the time were Hargis and the Grievor. Subsequently, Munn went to an area of the track near to Mr. Rivard’s home to check if the chainsaw was there. Initially, he did not find it; but on a second visit did. No further action was taken at this time.
5 February 2001: On this date the Grievor claimed time for 20 and 21 January 2001 and compensation time for 26 and 27 January 2001. Mr. Ross did nothing.
10 February 2001: Again, the Grievor called in “sick” and was seen by Ms. Davey at a hockey tournament in Desbarats.
12 February 2001: As in previous incidents, Ms. Davey informed Mr. Ross of what she saw. At this point, Mr. Ross still had not moved on this case.
18 February 2001: Once more, Mr. Rivard claims compensation time for February 10. Mr. Ross does not act on this at this time.
27 or 28 February 2001: Although whether such occurred at about 6:30a.m. on either February 27 or February 28, it is clear Mr. Ross personally delivered notices of investigation to Mr. Rivard and removed him from service. To the extent it is relevant to this case, my view is that such occurred on the earlier of the dates, which is the one shown on these documents.
Mr. Rivard received, in total, four such notices of investigation, all of which were copied to the Union. These all stated the Grievor was required to attend a meeting on Monday 5 March 2001 at the Conference Room in the Mechanical Office of the Company.
The first of these stated that the subject of the investigation was the Grievor’s “…alleged removal of a chainsaw from the roundhouse at Hawk Junction on January 30, 2001.” The second related to “…an investigation into [the Grievor’s] absenteeism on January 26th and 27th, 2001.” The third was “…an investigation into your absenteeism on February 10th, 2001.” The final investigation related to an alleged “failure to protect your spare board assignment January 20th and 21st, 2001.” These investigations were to occur in this order.
Finally, it should be noted that the last paragraph of each of these documents added: “As per Article 9 of the Collective Agreement, you are entitled to have one duly accredited representative from the U.T.U. attend the investigation with you.
At the same time a similar letter was given to Mr. Rivard by Mr. Ross, stating:
You are hereby notified that you are being removed from service, effective this date [27 February 2001]. Pursuant to Article 9.01(a), this is not a disciplinary action and you will continue to be paid until the impartial investigation occurs on Monday March 5th, 2001.
28 February 2001: Although not entirely sure of the date, Mr. Hargis, who was also called as a witness, said that shortly after Mr. Rivard received the notice of investigations he came over to Mr. Hargis’s home and asked him how they could concoct a story to protect themselves. After some discussion, Mr. Hargis said they decided on the story that he slowed down the train near the location where the chainsaw was found because of a car on or near the track.
3 March 2001: Early on this date Mr. Ross asked Mr. Hargis what had happened regarding the chainsaw incident and Mr. Hargis responded with the above alibi. Later in the day, Mr. Toguchi, another member of management, called Mr. Hargis and said that the Company did not believe his story, that he was being removed from service and that he might be fired.
As a result of this call, Mr. Hargis went to the Company offices and met with Messrs. Ross and Toguchi. At this time he admitted to being involved in the attempt to remove the chainsaw. He stated, however, that it was the Grievor who was to get this item; he only slowed down the train to facilitate this.
Following this a letter of the same date was sent by Mr. Ross to Mr. Hargis, stating that he was to come to the investigative meeting scheduled for March 5th regarding his involvement in the alleged removal of the chainsaw from the roundhouse at Hawk Junction.. It noted that Mr. Rivard was also a party to this investigative meeting, the time of which was altered to 1:00p.m. from 9:00a.m. It also added a list of “material witnesses” that would be present at this meeting: A. Munn and K. MacRae. There was no mention of Mr. Hargis in this regard. A second letter of the same date, in a form similar to that sent to the Grievor, removed Mr. Hargis from service.
The Company, in argument, states that on this date as well Mr. Rivard was informed of material and witnesses which would be presented at the investigation. My notes do not reflect this, but the Union took no exception to this statement so I will accept it as correct. I would add, however, that no mention appears to have been made regarding the role of Mr. Hengis.
4 March 2001: In the late morning of this date the Grievor was advised by the Company that Mr. Hargis would now be a party to the chainsaw investigation and that the time of this would be changed to 1:00p.m. Later that afternoon the Union was advised of these changes and a letter to this effect was sent to the Grievor.
It might be added that Mr. Hargis stated that on this day he had called Mr. Witty, President of the Union, and told him that he had “fingered” the Grievor. Mr. Witty testified to the contrary. As Mr. Hargis’s testimony was sketchy on dates, I prefer to accept Mr. Witty’s evidence on this point.
5 March 2001: The investigation of these matters occurred, with written records of the proceedings being kept. It is unnecessary to review these in detail at this point, except to note that in a general way the Union objected to the procedure followed.
16 March 2001: The letter terminating the Grievor’s employment, reproduced earlier, was sent by the Company to him.
21 March 2001: Mr. Ross writes a letter to Hargis imposing discipline on him, the relevant part of which reads [Exhibit 18]:
Your conduct is a serious breach of the standards not only expected but also required of you as an employee. The situation you found yourself involved in has placed your employment relationship in jeopardy. By failing to act to prevent the unauthorized removal of company property you became party to the incident and in doing so have provided me with just cause for dismissal.
Having carefully considered your previous good work and performance record it ordinarily would be my intention to take action short of dismissal and apply leniency and suspend you for one (1) month. I recognize however that you have expressed a genuine remorse and have acknowledged you understand the high standards of conduct that are expected from you in the future. I realize that situations like this are extremely difficult and I am gratified that you eventually confronted the issue and gave an open account of the events from your perspective.
Curiously, Mr. Hargis was permitted to use compensation time and sick leave to cover the period of this discipline. In short, in effect he only received a paper suspension. On the advice of his Union, he did not grieve the Company’s action against him.
27 March 2001: Mr. Witty writes a letter to the Company constituting a grievance on behalf of Mr. Rivard. Without dilating on this document at length, Mr. Witty’s letter raises questions regarding the timeliness of the investigation of the various charges against the Grievor on 5 March 2001; the validity of these charges; and the fairness and impartiality of the investigation of these charges.
30 March 2001: Ms. Davey acknowledges receipt of the Grievance.
25 April 2001: In a lengthy letter of this date, Mr. J.E. Terbell, Vice President and General Manager of the Company, responded in detail to the Grievance filed by Mr. Witty. Again without commenting at length on this document it is useful to note that this document states [Exhibit 1.8]: “Our Collective Bargaining Agreement does not impose any limitations on the Company as to when an investigation must be held.” This letter also dealt at length with the merits of the charges against Mr. Rivard.
7 May 2001: Mr. Witty wrote to Mr. R. McCarren, President and C.E.O. of the Company regarding this case and forwarding it to the third step of the Grievance Procedure. A part of this document which touches on the present issue reads [Exhibit 1.9]:
It is the Union position that the investigations were not fair and impartial and the discipline assessed was not fair, and demonstrated a preconceived judgement.
The Union is well aware that their [sic] is nothing in the agreement that definitely limits the Company when to hold an investigation, but we strongly take the position an investigation held in [a] reasonable time, would result in a fair and impartial investigation.
11 June 2001: The Company wrote Mr. Witty, refusing to alter their position. The case then proceeded to the present arbitration.
THE UNION’S POSITION ON THIS PROCESS
The Union first noted that Article 1.01 of the Collective Agreement states that its purpose is to obtain “prompt and fair” disposition of grievances. In their view neither of these objectives were reflected in the instant case.
The Union then turned to the wording of Article 9 as it relates to this case. In their view this contemplates a formal and comprehensive investigative process. The culmination of this is a hearing by an independent party (in the sense of not having earlier direct involvement in the case) who will render a fair and impartial decision after a fair hearing for the employee involved. This contemplates, it is argued, appropriate notice of the hearing, together with revelation of the type and identity of documents and witnesses to appear, in order for a potential grievor to fairly prepare a case. To the same end, the ability to obtain and use representation at the hearing; and the right to participate fully in both the evidentiary and argumentative aspects of the hearing is required. This process is one which is mandatory and substantive in nature. It is a vital process for a potential grievor and any failure to meet these requirements, whether merely procedural or otherwise, renders null and void any subsequent decision contrary to the relevant grievor’s interests. The Union urges that this case is replete with such errors so that the Company’s ultimate decision must be reversed. In this regard, the Union urges these errors fall into five categories:
(1) Delay: This, in my opinion, was the major thrust of the Union case. Here the various bases of the Company’s actions were examined in light of the time between the incident relied on and the Employer’s eventual determination of Mr. Rivard’s culpability.
The first looked at was the incident when Mr. Rivard was in Brantford and thus was clearly unable to “protect the Spare Board”, the task to which he had been assigned. Here the incident occurred on 20 and 21 January 2001. The relevant level of management, Mr. Ross, was aware of this on the next day. He took no immediate action, but decided to await for receipt of Mr. Rivard’s time sheet. This occurred on 5 February 2001, when Mr. Rivard claimed payment for the time he was in Brantford. On 27 February 2001 Mr. Ross delivered the notice of investigation to the Grievor. Some forty-three days after Mr. Ross heard from Ms. Davey about the Grievor’s actions in Brantford, the investigation took place. Mr. Rivard was informed of the Company’s decision to fire him on 16 March 2001, i.e., some fifty-four days after learning of the facts relevant to this case and at least thirty-nine days after the Grievor gave his time card to the Company. The Union argues that discipline should be applied in a timely manner. This, it is urged, was not done here.
A similar analysis was undertaken in relation to the situations where Mr. Rivard booked off sick, but went to watch his son play hockey, on 25 and 26 January 2001 and 10 February 2001. The delays were roughly the same. The Union makes the same claim.
Finally, the Union turned to the Chain Saw incident. There it was argued that the Company knew on 30 January 2001 of the involvement of Rivard and Hargis, if not the specific terms of such; yet they took no action to deal with the situation until 27 February 2001, when a notice of investigation was sent to the Grievor, some four weeks after the event. The investigation of this event took place six days later, in total some 34 days after the incident.
The Union again emphasized that implicit in the requirement that investigation be fair and impartial is the obligation that the Employer act with reasonable dispatch. Here that was not the case. Indeed, the Company had no reasonable explanation for the delay. The best that could be said for them was that there was a claim that there was some unidentified difficulty in arranging for an investigation, neither of which were the fault of the Union and Grievor. As well, during this delay Rivard was not aware of his pending problems, thus precluding him from considering his position and collecting evidence for his defense. In further support of this case, the Union noted that the delays were even more egregious as the Company claimed that each of the events separately would support the Grievor’s termination. In the opinion of the Union the correct conclusion to draw is that the Company was “lying in the weeds” while they sought to strengthen their case against Mr. Rivard.
To support their case, the Union provided a number of authorities relating to delay and its effect in cases such as this. The first part of these relates to normal cases involving this issue in labour arbitration. The key decision in this regard, according to the Union, was Re Hickeson-Langs Supply, 19 L.A.C. (3d) 379 (Burkett, 1985). There the arbitrator concludes “that a clause that provides for union representation in a discipline meeting confers a mandatory right of a substantive nature which, if not complied with, voids the discipline that has been subsequently imposed…” [p.39]. Support for this conclusion was found by Arbitrator Burkett in the following citation from Re Budd Automotive and U.A.W., Loc. 1451, unreported (Brown, 17 Feb.82), which reads in part:
… He [the grievor] has been given by the parties the right to know the penalty [to be imposed] within the time stipulated in art.7.02, and the right of representation. These are substantive rights which must be accorded to the employee if the right of the company to initiate discipline is to be given weight. The failure, then, to allow these rights to the employee is not a failure to follow procedure… these are obligations which cannot be ignored by the company in the imposition of discipline. In my view the parties have balanced the rights of the company and the employee for the purpose of discipline by which the exercise of the company’s right to discipline must be met with the employee’s right. It is not a matter going solely to the assessment of the penalty but goes to the very act of discipline itself. … In conclusion, I find that [these articles] are not procedural in effect and provide substantive rights to the employees which cannot be denied them by the company and must be strictly applied. In the event of the company’s failure to grant such rights to the employee involved and to carry out the terms of these provisions, I find that the imposition of discipline would be void ab initio… .
The following cases cited by the Union flesh out the above concept. For example, Re Canada Post Corp. (Gibson), 29 L.A.C. (4th) 7 (Burkett, 1992), states at page 12: “The requirement for notice in writing beforehand or at the same time has been consistently held to be a mandatory requirement such that failure to comply nullifies the discipline…”. Again, in Re Northwestern General Hospital, 30 L.A.C. (4th) 95 (Starkman, 1992), a failure by an employer to impose discipline within seven calendar days, being nine days late, the discipline imposed was found void ab initio. A similar result was found in Re Brink’s Canada, 69 L.A.C. (4th) 199 (Jamieson, 1997-Can.), where a grievor was denied union representation. To the same effect was Re New Flyer Industries, 71 L.A.C. (4th) 425 (Chapman, 1998-Man.); Re Axis Logistics, 87 L.A.C. (4th) 100 (Faubert, 2000); Re Canada Post (Solidum), 100 L.A.C. (4th) 39 (Blasina, 2001-Can.) [insufficient and ambiguous notice by employer contrary to collective agreement]; and Re Irving Industries, 101 L.A.C. (4th) 70 (Tettensor, 2001-Alta.).
A useful line of cases from the Canadian Railway Office of Arbitration was also cited. Here the Union emphasized that those cases should be given special weight because of the similarity of the underlying industry giving rise to such decisions and the present situation. In short, it is claimed that this factor supports the conclusion that they should be given even greater weight in determining this case than the cases cited above.
The first of these was Re C.P. Rail (Gannon), C.R.O.A. Case No. 1561 (Picher, 1986). There the relevant collective agreement required a “fair and impartial investigation” of conduct which is to become the basis of discipline. The arbitrator, in the course of ruling for the grievor, stated:
…[T]his case must turn on the principle that fairness must not only be done, but must manifestly seem to be done. In the Arbitrator’s view the requirement of fairness and impartiality… requires, at a minimum, that an investigation must have, to any objective observer, an appearance of fairness and impartiality. …
… The requirement of a fair and impartial investigation is a substantive right cast in terms of a mandatory obligation… . [Such clauses] must be interpreted as imposing an objective, and not a subjective, standard of fairness and impartiality. …
In a similar vein the Union referred to Re C.N.R. (Tomas), C.R.O.A. Case No.1588 (Picher, 1984). There Arbitrator Picher commented upon the necessity of an employer to act without undue delay when imposing discipline in order to allow an employee to consider his or her possible defense, if any. This includes both the speed with which action is taken and the nature of the actual notice. Such a result, it is claimed, flows from a requirement of “a fair and impartial investigation prior to the imposition of discipline.”
A further case was presented by the Union which touches on the delay of the Employer in this case which resulted in the four various charges accumulating against Mr. Rivard: Re Via Rail (Albert), C.R.O.A. Case No.1833 (Picher, 1988). There Arbitrator Picher concludes:
It is, in my view, prima facie inconsistent with the exercise of an employer’s authority to impose discipline to delay any communication whatever respecting the incident giving rise to the discipline to the employee concerned for a period of close to three months. From a practical standpoint the employee is put at a severe disadvantage, as he or she may have no recall of an event to which the employee attached no particular significance at the time but for which the Corporation has retained a documented negative report from the outset. In the circumstances of this case I find it difficult to conclude other than that the Corporation effectively acquiesced in the grievor’s conduct on the occasion in question by failing to bring the matter to his attention for the period of time disclosed.
Assuming, without finding, that the reason for the Corporation’s non-disclosure was to allow it to await a second and more serious incident without “tipping off” the employee that he was under scrutiny, I would find it equally difficult to square that approach with the fair administration of an enlightened system of progressive discipline. If the Corporation had communicated to Mr. Albert that it was aware of the incident of August, 1987 and was imposing discipline upon him for that event, there might well never have been a second incident, which has become the subject of his discharge and a separate grievance (see CROA 1834). It is plainly inconsistent with sound principles of labour relations for an employer to “lie in the bushes” with respect to an incident for which it knows it can discipline an employee, knowingly doing nothing to correct his conduct, and subsequently resurrecting the incident and imposing discipline for it only when it believes it has evidence to prove a second and more serious incident of misconduct.
Five other similar cases were presented by the Union. All of these were heard by Arbitrator Picher and reflect the same type of reasoning. Thus, it is unnecessary to go into these in depth. They are: Re C.N.R. (Weafer), C.R.O.A. Case No.1734 (Picher, 1987) [relating to the scope of information to be provided to the grievor prior to the investigation]; Re C.P. (Spring), C.R.O.A. Case No.1937 (Picher, 1989); Re C.N.R. (Kehler), C.R.O.A. Case No.2615 (Picher, 1995) [a delay of seven weeks does not meet the requirement that an investigation be held “as quickly as possible”.]; Re C.P.R. (Biden), C.R.O.A. Case 2901 (Picher, 1997) [failure to meet minimal standards of a fair and impartial investigation will cause any subsequent discipline to be null and void]; and Re C.P.R. (Collen and Gwyer), C.R.O.A. Case No.3221 (Picher, 2001) [good intentions and minor technical failures are no defense to the employer in this field].
These cases, it is urged, support the Union claim that the delay noted above should lead to the present discipline being considered to be “null and void”. Hence, the present grievance should succeed.
(2) Inadequate Notice: The second general area of dispute relates to the last two sentences in Article 9.01(a) of the Collective Agreement. Essentially, the claim of the Union is that the notice to Mr. Rivard of the pending investigation was misleading, late and incomplete.
As noted earlier, I have concluded the notices of investigation were given by Mr. Ross to the Grievor on 27 February 2001. The body of one of these reads [Exhibit I.1]:
RE: NOTICE OF INVESTIGATION
You are required to report to the Conference Room, Mechanical Office, Monday, March 5, 2001 at 10:00a.m. to attend an investigation into your alleged removal of a chain saw from the roundhouse at Hawk Junction on January 30, 2001.
As per Article 9 of the Collective Agreement, you are entitled to have one duly accredited representative from the UTU attend the investigation with you.
The other three are essentially the same. They merely alter the order of the investigations to be held and state the purpose of these was to investigate the Grievor’s absences on: “January 26th and 27th, 2001”; “February 10th, 2001”; and “January 20th and 21st, 2001”.
In the view of the Union there was a complete failure by the Company to adhere to Article 9.01(a) of the Collective Agreement. Basically, the argument of the Union is that the investigation contemplated requires a grievor to be provided a sufficient idea of the charges leveled against him so that he can prepare himself to present his case at the hearing of the matter. Here this was not met. While the “chainsaw” incident gives Mr. Rivard some idea as to what that case involved, the others were far less clear. More obvious, however, is the failure of the Company to provide any mention at all of the “materials and witnesses” that might be used in this case. These failures, it is argued, prevented the Grievor from adequately preparing himself for the investigations and, thus, such vitiates the validity of these investigations. Of course, in this regard the Union again raised the jurisprudence earlier discussed.
It should also be noted that, in part, the Company complied with the requirements on 4 March 2001 when the Grievor and Union were informed of Mr. Hargis’s participation in this process. In the view of the Union, however, this did not meet requirement that such was to be done within forty-eight hours of the investigation.
(3) Held Out of Service Beyond Five Days: On this point, the Union argues that Article 9.01(a) prevents the Grievor from being held out of service for more than five days. Here, of course, Mr. Rivard was removed from service on 27 February 2001 and did not return again to service up to 16 March 2001, when his employment was terminated. For the reasons set out earlier, this again would render the discipline imposed null and void.
The Union also referred to the Company letter regarding Article 9.01(a) as it touches on this point. In my opinion, however, it is unnecessary to comment on this point.
(4) The Presence of the Union at Examination of Witnesses: On this point, the Union relies on Article 9.01(c) to render the investigation invalid. Specifically, it is urged that the Union and the Grievor were not present when the Company obtained evidence from Mr. Hargis, nor were they given a copy of any evidence regarding the “chain saw” incident prior to the investigation of this matter. As this was the case, in effect, there was no valid evidence during the investigation of Mr. Rivard’s culpability. In using the evidence of Mr. Hargis in this way, the investigating officer, Mr. Miller, was not acting in a fair and independent manner and so this investigation should be considered null and void for the reasons set out above.
(5) The Investigating Officer Was Biased: Basically, the Union urged that Mr. Miller was acting in a biased manner in this case because he used information regarding the Grievor’s culpability in the “chainsaw” incident from Mr. Toguchi, who had spoken to Hargis on this subject. I would note here, however, that such a position is essentially the same as the previous position of the Union and so I will not comment further upon it.
THE COMPANY’S POSITION ON THIS PROCESS
The response of the Employer to this rather lengthy argument of the Union can be stated rather succinctly. Basically, they take the position that the contractual language depended upon by the Union is not mandatory; rather it is directory only. In short, scrupulous adherence to the provisions in question is not required or else any decision flowing from such process is invalid. To have the result urged by the Union there must be some manifest detriment to a grievor and far greater delay than occurred her. Naturally, they claim that these characterization are not appropriate on the facts of this case.
This argument, of course, gives rise to an analysis of the facts in this case that relate to the procedure followed by the Company. Before this, however, a decision must be made as to whether the wording of the collective agreement provisions in question are mandatory or not. If they are mandatory, it seems clear they were not followed to the letter. Thus, if this decision is in favour of the Union, it is clear the decision to discipline Mr. Rivard is null and void; if it is otherwise an analysis of the relevant facts becomes relevant. Consequently, to this basic question I now turn.
The position of the Employer on this point can be stated rather simply. Thus, for a provision to be concluded to be “mandatory”, in the sense described above, there must be very clear language to support such a conclusion. Generally speaking, this requires the use of words such as “must” and “shall” and that failure to follow the process in issue has clear language that such will result in the discipline involved being of no effect, i.e., “null and void”. The Employer, of course, says that the present language in issue does not meet such a test.
Further they argue that the line of C.R.O.A. cases referred to by the Union do not have the meaning ascribed to them, nor do they have the special relevance to the present case urged by the Union. In the opinion of the Employer the appropriate interpretation of these is that there must be some detriment caused to the employee involved to cause the subsequent discipline to be termed “null and void”. It should be added that, as an alternative position, the Employer argues the Union has waived its rights in this regard.
As a rationale for the Company’s basic argument on this point, reference was made to Re General Motors, unreported (Palmer, 1992). Here at page 6 et seq. the following is found:
… I would note first that there can be little doubt that an employer must impose discipline in a timely manner. … It is truly understandable that such should be the case. Rights under a collective agreement govern day-to-day affairs. A degree of certainty is important to the parties: they must be able, as far as possible, to depend on the validity of acts not challenged within a reasonable time. This approach is most often seen in relation to the Union or members of the bargaining unit failing to file grievances in a timely manner. On the basis of parity of treatment this has been applied to both parties of the agreement.
This naturally brings us to the question of what is the meaning of “timeliness”. In this situation the most useful analogy is found in those cases where a collective agreement contains no time limits regarding the filing and processing of grievances. In these cases there is unanimity that at least two questions are to be considered: the extent of the delay and the effect this delay has on the other side. On the former of these, awards have found unreasonable delay after three months… .
What is required in addition to mere passage of time is some “prejudice” to the other party.
To this end, counsel for the Company reviewed the provisions of the Collective Agreement depended upon by the Union. In the opinion of the Company this results in the conclusion that there is nothing mandatory about such language as it does not require them to act within any particular time. Rather, it is urged that the test is one of reasonability. Following the language cited in the passage from the General Motors award, supra, it is claimed that the Company acted in a way in this case which is clearly “reasonable”. In this regard, it was noted that there were a number of issues which arose in a relatively brief period of time and, given practical problems in getting everyone together for the investigations, the way in which the Company acted met the standards required. More to the point, there is no evidence that there was any detriment to the Grievor as a result of their conduct.
The Company submitted as well that even if they did not meet the test suggested in General Motors, the Union had by its conduct waived the right to raise the procedural arguments in this situation. To this end, the Company cited Re I.C.G. Utilities, 25 L.A.C. (3d) 206 (Bowman, 1986-Man.); and Re Sunrype Products, 4 L.A.C. (4th) 62 (Chertkow, 1988-B.C.). In the former of these cases, even though there might have been a breach of mandatory procedural requirements, such was considered waived by failure of the Union to raise this objection until a few days before the arbitration hearing. The latter case approved this decision. Thus, it was urged that, even if the Union was correct in its contention that the Collective Agreement language in question was mandatory in nature, it could and was waived in this situation. This point will be deal with later.
The Company then referred to a number of C.R.O.A. decisions which in their opinion run counter to the position of the Union that the provision in issue are mandatory.
The first of these was Re Ontario Northland Ry. (Corriveau), C.R.O.A. Case No.2073 (Picher, 1990). Her the arbitrator declined to render a disciplinary decision null and void because “the investigating officer erroneously asked a single question concerning two prior incidents…”. In a more general way, Arbitrator Picher commented [page 3]:
As previous awards of this Office have noted (e.g. C.R.O.A. 1858), disciplinary investigations under the terms of a collective agreement containing provisions such as those appearing in Article 34 are not intended to elevate the investigation process to the formality of a full-blown civil trial or an arbitration. What is contemplated is an informal and expeditious process by which an opportunity is afforded to the employee to know the accusation against him, the identity of his accusers, as well as the content of their evidence or statements, and to be given a fair opportunity to provide rebuttal evidence in his own defence. Those requirements, coupled with the requirement that the investigating officer meet minimal standards of impartiality, are the essential elements of the “fair and impartial hearing” to which the employee is entitled prior to the imposition of discipline. In the instant case, for the reasons related above, I am satisfied that that standard has been met.
The Company argued, therefore, that the above comments indicate that the basic requirement of a “fair and impartial hearing” is not that the breach of any requirements in the collective agreement, no matter how small, leads to a finding that subsequent discipline is a nullity; rather, what is contemplated is an assessment whether, on the whole, the investigation can be characterized as fair and impartial. If it can be so described the requirements of the collective agreement have been met.
A second such case was Re C.N.R. (Kovich), C.R.O.A. Case No.2280 (Picher, 1998). In essence, this lengthy award found that refusal of counsel for the grievor did not preclude a fair and impartial hearing. In dealing with this point, Arbitrator Picher noted [at p.3]:
The facts pertinent to the issue relating to the investigative procedure are not in substantial dispute. The collective agreement between the parties, like many collective agreements in the railway industry, and others, in Canada, makes provision for the holding of a preliminary inquiry by the employer before the assessment of discipline against an employee. Such provisions, which have existed in the railway industry for decades, have been fashioned to provide a minimal degree of shop floor due process as a condition precedent to the assessment of discipline against an employee. The underlying principle is that, before being disciplined, an employee should have a reasonable opportunity to know the precise nature of the accusation made against him or her, with reasonable access to any pertinent statements or documents in the possession of the Company, and be afforded a fair opportunity to offer an explanation, response or rebuttal to the information or material in the Company’s possession.
Naturally, it was urged that this strengthens the view the Company takes in regard to the Corriveau decision, supra.
Finally, the Employer referred to Re Canadian Pacific Express & Transport (Poulin), C.R.O.A. Case No.1737 (Picher, 1988). There initial questioning of an employee suspected of committing a disciplinable offense was held not to be part of the required “fair and impartial investigation” to which employees are entitled. Hence, the standards applicable to the latter process do not apply. In the course of reaching this conclusion, Arbitrator Picher commented:
… Common sense dictates that in many instances the first and best form of preliminary information can be obtained by asking the employee under suspicion for his or her version of what has happened. In a great many cases the employee’s explanation may be fully accepted, thereby avoiding the need for any further inquiry and eliminating the possibility of discipline. The Company might well be chargeable with improper procedure if, in some circumstances, it accepts negative reports about the actions of an employee without obtaining, in the most preliminary way, his or her version of the events in question. To use an example advanced by Counsel for the Company, there is clearly nothing improper in a supervisor asking an employee who arrives at work late the reasons for his or her lateness. Article 8 of the Collective Agreement should not be construed so as to prohibit the normal conversation to be expected between employee and supervisor in circumstances of that kind, notwithstanding that more formal investigatory procedures and the imposition of discipline may ensue. If it were otherwise the conduct of the Company’s day-to-day affairs would be unduly burdened by formalistic procedures that would work unnecessary hardship on supervisors and employees alike. While it is important for arbitrators to give full effect to the procedural protections afforded to employees within their collective agreement, it should not be lightly be assumed that the parties intend the employer’s enterprise to be conducted on the model of a courthouse… .
As a result of the Employer argues that the considerations set out in these cases are reflected in the matters here in issue. Consequently, any breaches of the collective agreement which might have occurred can only be characterized as of a directory nature, not mandatory. Thus, as no detriment to the Grievor occurred, the Union arguments on this point should be dismissed.
IS THE PROCESS MANDATORY?
On this point, having considered the parties’ arguments, I have concluded that it is. The key to this, of course, is what is the “process” which is mandatory. To this, I now turn.
First, I would note that I accept the Union position that C.R.O.A. cases have special relevance to the present case. The type of work underlying the facts with which we are here dealing is generally the same. Similarly, the collective agreement language in issue is basically the same. Again, there is a close relationship between the parties involved. In my view, therefore, it follows that great weight should be given to these cases. I would add that these cases have the additional value of being heard in latter years by one respected arbitrator, Mr. Picher.
The issue, then devolves to determining the thrust of these cases. In my view, essentially what Arbitrator Picher is saying is that it is mandatory the investigation in question can be characterized as “fair and impartial”. For example, this is reflected in the Corriveau award. >From this basis, one is then directed to Article 9.01 to see the various requirements of such a process. On this aspect of the case, it is to be noted that throughout this language there is the use of words such as “shall” or “will” which are consistent with the designation of the process as being mandatory.
Before turning to an examination of the specifics of Article 9.01, it is useful to deal with the issue of “detriment” and the lack of consequences in the collective agreement when the process is found not to be followed. In my opinion, neither of these considerations is relevant to this case. First, the C.R.O.A. awards do not support that either must exist to render a decision null and void. More to the point, to accept that there must be “detriment”, is to create a type of Catch-22 situation. For example, if contrary to Article 9.01(a) an employee is not given forty-eight hours notice of witnesses to appear at the hearing, it is impossible to know what effect there would be if correct notice had been given. Conjecture is not too useful in this regard.
It is also helpful to note that interpreting this provision, the C.R.O.A. cases show that an overly-technical approach should be avoided. The Poulin case is reflective of this type of thinking.
Finally, I would note that there exists no indication in Article 9.01 when an “investigation” shall begin after an alleged offense occurs. What appears to be contemplated by this language is that when an employer becomes aware of a possibly disciplinable incident, the employer can enter into a preliminary examination of facts relating to it. This is reflected in the part of the Poulin award set out above. Once this initial phase leads the employer to continue further, the requirement for a “fair and impartial investigation” comes into effect.
At this point the employee involved is given notice of the date for the investigation or, in other words, the hearing of this matter. This notice must be given at least forty-eight hours before the date of the hearing and it must include a list of those required to attend and “a list of materials and witnesses available to be brought forth” at such a hearing. It seems manifest that the issue of satisfactory notice is key to this procedure. It is central to the potential grievor’s ability to protect him- or her-self from the imposition of discipline. By such notice, the employee involved must know the nature of the case to be faced and the general nature of the evidence to be considered. In light of this, such employee can then consider the best course of action to follow, including the possibility of agreeing that a disciplinable incident occurred.
Article 9.01 is not clear as to how soon such a hearing shall occur after notice of the investigation is given. The minimum time, as noted above, is two days; but the maximum is not set out. This, as in the case of beginning the investigative procedure after the employer becomes aware of a possibly disciplinable incident, is governed by the type of reasoning in the General Motors case, supra. In short, it raises questions as to the reasonability of the time involved and possible detriment to the employee.
The relevant provisions of the Collective Agreement also permit the employer to suspend the employee involved for up to five days prior to the hearing. This suggests that this is the length of notice permitted; but from the point of view of mere language such is not the necessary limit.
Article 9.01 also sets out certain mandatory requirements for the conduct of the hearing. Thus, the employee is entitled to representation at the hearing pursuant to Article 9.01(b). At the hearing, the employee involved has the right to be present during the examination of any witnesses which relate to his or her actions. If written evidence is to be used against such employee, this material is to be made available to the employee at the outset of the hearing. In either case, the employee is to be allowed to rebut such evidence. The hearing is to be taped or a transcript of it taken. Following the hearing, the employee involved is to be provided with the latter. A decision in the matter, unless otherwise mutually agreed, is to be made within three weeks. These are all mandatory requirements.
RESOLUTION OF THE UNION CLAIMS
As noted above, the Union had five types of objections. I will deal with these in the order presented.
(1) Delay: On this point, it is my view that the Union argument cannot be accepted. It proceeds on the basis that mandatory time limits were exceeded in this case. More specifically, it is argued that the time from which the Employer was aware of the Grievor’s alleged unsatisfactory behaviour until the investigation actually occurred was well beyond that contemplated by the Collective Agreement.
No doubt the delay was extensive. However, as noted earlier the provisions of Article 9.01 do not relate to this period; they relate only to the period between the notice of an investigation and the subsequent hearing. Thus, the Union has not only to show there was excessive delay; but also that such delay has resulted in detriment to them. This they have not done. There is not a scintilla of evidence on this point. Consequently, I dismiss the Union claims in this regard.
(2) Inadequate Notice: On this point, the argument of the Union is that the notice provided by the employer was deficient in that it did not adequately set out the nature of the charges against Mr. Rivard and, more importantly, did not contain “a list of those required to attend and a list of material and witnesses” to appear. On this aspect of the case, the facts clearly support the Union. Exhibit 1.1 makes this obvious.
As noted above, it is my view this requirement is mandatory. It is essential to a “fair and impartial investigation”. This type of material is central to Mr. Rivard’s preparation of his case. Without it, he cannot adequately determine the case he has to meet and, indeed, to decide whether he should merely “come clean”. As noted, mere conjecture as to the actual value to the Grievor of this right is no answer to the Union argument.
As the Company’s position on the nature of this language being “directory” rather than “mandatory” has been rejected, it is my award that the Employer was in breach of this mandatory language. The result of this is that all discipline in this case is rendered null and void.
(3) Held Out of Service Beyond Five Days: Although given the ruling on the previous point makes a decision on this point unnecessary, some comments on this are perhaps useful. Thus, the limit of five days is to protect the charged employee and to prevent the employer from unnecessarily extending the investigation. Thus, it would seem that even if the Employer succeeded on all other points, the Union would he at least entitled to pay to the Grievor for days held off work in excess of five days.
(4) The Presence of the Union at Examination of Witnesses and (5) The Investigating Officer Was Biased: These points are related, as noted above. I would merely note that point (2), supra, is an answer to these claims in the sense that this type of evidence was not provided either with the notice of the investigator or the procedure under Article 9.01(c).
Given the foregoing, the Union grievance succeeds and so it is unnecessary to deal with the merits of the Company’s actions. I would note, however, that clearly had the correct investigative procedure been followed this Grievance would have been dismissed. As agreed at the hearings, I retain jurisdiction to deal with any problems that the parties are unable to deal with amicably. I look forward to hearing from the parties on this point. Finally, I wish to thank the parties for their kind assistance through this case.
DATED at Lynden, Ontario, this twenty-eighth (28th) day of January, 2003.
Earl E. Palmer, Q.C.