Newfoundland v. Labrador Association of Public and Private Employees, 2018 NLSC 189

court crest IN THE SUPREME COURT OF NEWFOUNDLAND AND LABRADOR GENERAL DIVISION Citation : Newfoundland and Labrador Association of Public and Private Employees v.

Newfoundland and Labrador (Treasury Board ) , 2018 NLSC 189 Date : September 24, 2018 Docket : 201501G3074 In The Matter of the Public Service Collective Bargaining Act , a grievance by Israt Khan and an Arbitration Award by Arbitrator Robert Wells, Q.C. dated the 10th day of April A.D. 2015 Between: Newfoundland and Labrador Association of Public and Private Employees Applicant And: Her Majesty the Queen in Right of Newfoundland and Labrador by the President of treasury board Respondent Before: Justice Gillian D. Butler Place of Hearing: St. John’s, Newfoundland and Labrador Date of Hearing: September 13, 2018

Summary: Judicial review of an Arbitrator’s Decision on a Preliminary Objection respecting timeliness of disciplinary action taken by the Employer.

Held: The Arbitrator’s conclusion met the standard of reasonableness. Appearances: Christina R. Kennedy Appearing on behalf of the Applicant David G. Rodgers Appearing on behalf of the Respondent Authorities Cited: CASES CONSIDERED: N.A.P.E. v. Newfoundland & Labrador (Treasury Board) (NL SC), 2002, 217 Nfld. &P.E.I.R. 104, 116 A.C.W.S. (3d) 533 (Nfld. S.C. (T.D.)); Newfoundland and Labrador (Department of Transportation and Works,Marine Services) and CMSG (Greene), Re 2009, 99 C.L.A.S. 341, 2009 CarswellNfld 401 (N.L.

Arb.); Whitbourne Youth Centre v.NAPE (Cronin) (16 January 1998) unreported; Tank Truck Transport Ltd. V. I.B.T., Local 880 (1988) (ON LA), 34L.A.C. (3d) 242, 9 C.L.A.S. 71 (Ont. Arb.); Memorial University of Newfoundland v. Memorial University of Newfoundland FacultyAssociation (Dale Albers) (10 September 1990), unreported; Muskrat Falls Employers’ Association Inc. v. Resource Development TradesCouncil of Newfoundland and Labrador, 2018 NLSC 182; Layman v. Layman Estate, 2016 NLCA 13 TEXTS CONSIDERED: Donald J.M. Brown & David M. Beatty, Canadian Labour Arbitration,

Chapter 7, (Ontario: Canada LawBook, 1984) REASONS FOR JUDGMENT Butler, J.: INTRODUCTION [1] This grievance involves the

interpretation of

Article 42.03 of the General Service Collective Agreement dated November 15,2013 (the “Agreement”), relative to an investigation conducted under the Harassment and Discrimination-Free Workplace Policy (the“Policy”) of the Respondent, (the “Employer”). [2] Israt Khan (the “Grievor”) complained that during a conversation with her supervisor on November 20, 2013, the supervisoryelled, screamed and was ferocious; she claimed that his behaviour constituted a breach of the Policy. [3]

Article 4.02 of the Agreement provided: The Employer and the Union recognize the right of all employees in the Public Service to work in an environment free from harassmentand …All reported incidents of harassment shall be thoroughly investigated as quickly and as confidentially as possible… [4] Counsel agreed to the following key dates and events: • November 22, 2013 – Ms. Khan filed a grievance under

Article 4.02 of the Agreement. • November 29, 2013 – The supervisor in question was notified of the grievance. • November 29, 2013 - Since

Article 4.02 did not reference a time-period but

Article 12.01 required the Grievor/employee toadvance her grievance to Step 2 within “five (5) days”, there was agreement to hold the grievance in abeyance pending the investigationof the harassment complaint.

• December 18, 2013 – The investigation of the Human Resource Secretariat commenced and continued until January 16, 2014. • December 18, 2013 - The Grievor was interviewed. • January 6, 2014 – Another witness was interviewed. • January 7, 2014 – The supervisor was interviewed. • January 10, 2014 – The final three witnesses were interviewed. • January 16, 2014 – A Draft Report of the Investigator was submitted to the designated Human Resources Manager. • March 5, 2014 – A final report was submitted to the designated Human Resources Manager and from him to the Deputy Minister. • March 5, 2014 – A decision was made to take appropriate action and on March 7, 2014 a letter of discipline was given to the Grievor/employee under

Article 42.03. • April 25, 2014 – Ms. Khan grieved the letter of discipline under Articles 4.02 and 42.03. [ 5 ] As a result, on the unusual facts of this case, a harassment investigation conducted in association with a grievance filed by the Grievor under

Article 4.02 took a reverse shift and the person whose wrongdoing was ultimately investigated was the Grievor herself. [ 6 ] As is customary with arbitrations of this nature, it was not until the hearing that the Grievor and her counsel learned through the exhibits entered that there had been a draft report of the Human Resource Secretariat, prepared by Jennifer Bradbury, which had been forwarded to her supervisor on January 16, 2014 suggesting that the complaint of the Grievor was unsubstantiated. [ 7 ] This discovery led to a Preliminary Objection at the arbitration. In essence, NAPE’s position is that: (

a) pursuant to

Article 3.01 of the Collective Agreement, “In the event that there is a conflict between the context of this Agreement and any … policy made by the Employer, this Agreement shall take precedence over the … policy.”; (

b) The Policy contains no reference to time limits but

Article 42.03 of the Collective Agreement required the Employer to “notify an employee in writing of any dissatisfaction concerning his/her work within five (5) working days of the occurrence or discovery of the incident giving rise to the complaint.”; (

c) Article 42.03 required the Grievor to have received the letter of discipline within five days of the draft Report of January 16, 2014.; and (

d) Since the Grievor did not receive it until March 7, 2014, it could not be admitted into evidence on the main arbitration hearing. [ 8 ] The Arbitrator dismissed the Preliminary Objection in a twenty-page written decision dated April 10, 2015. issues [ 9 ]

Article 42.03 falls within the Discipline

section of the Agreement and requires the Employer to notify the Grievor of “any dissatisfaction concerning his/her work within five (5) working days of the occurrence or discovery of the incident giving rise to the complaint”. [ 10 ] In light of this, there are two issues for this Court to consider: 1) Was it reasonable for the Arbitrator to conclude that

Article 42.03 required notice only after the investigation was complete and the Deputy Minister had approved discipline; and 2) Was it reasonable for the Arbitrator to conclude that the date “of the occurrence or discovery of the incident giving rise to the complaint” was March 5, 2014. [ 11 ] On behalf of the Employer, counsel maintains that the Decision of the Arbitrator meets the standard of reasonableness accepted by this Court as appropriate to the review of decisions of this nature. [ 12 ] The evidence presented and authorities cited to the Arbitrator addressed both issues and therefore, I shall review them together. analysis The Evidence [ 13 ] I shall consider first what the Arbitrator had before him to assist in the

interpretation of

Article 42.03 and the question of when the mandatory time-period commenced. [ 14 ] This Court does not have the benefit of the transcript of evidence before the Arbitrator. However, the Exhibits are all listed in the Decision and starting at page 3, the Arbitrator reviewed the evidence presented by each of the witnesses. [ 15 ] At pages 3 to 6, the Arbitrator reviewed the testimony of the investigator and concluded that at some point between December 18, 2013 and January 16, 2014, she had “formed the opinion that Mr.

Bradley was innocent of the alleged harassment complaint” and “turned the investigation into an inquiry into” the Grievor’s actions and intentions. Further, he concluded that “by January 16, 2014 Ms. Bradbury felt that she should communicate her concerns” to the Manager of Employee Relations and “did this in a form of a draft which

summarized her preliminary opinion on the issue so that he …, could comment or otherwise advise her”. [16] The Arbitrator specifically noted that Jennifer Bradbury was the investigative officer and upon being assigned the task toinvestigate under the Policy, learned that there were at least three other persons present when the conversation occurred, interviewedeach and took statements from most. The Arbitrator specifically noted at page 6 that “As Ms. Jennifer Bradbury continued herinvestigation, she formed the opinion that Mr. Bradley was innocent of the alleged harassment complaint against him.

She then turnedthe investigation in to an inquiry into Ms. Khan’s actions.” [17] By January 16, 2014, the Arbitrator concluded that Ms. Bradbury felt that she should communicate her concerns to Mr. SteveSnow, Manager of Employee Relations and that she did so in the form of a draft which summarized her preliminary opinion on the issueso that he, Mr. Snow, “could comment or otherwise advise her”. Exhibit JB5 confirmed that Ms.

Bradbury’s January 16, 2014 emailstated “for your review – it may need some changes”. [18] It is not entirely clear from the decision of the Arbitrator what delayed the draft Report of January 16, 2014 to a Final Report ofMarch 5, 2014 but it is clear that he accepted the evidence of Jennifer Bradbury to the effect that “There was more work to be done onthe whole matter” including checking the accuracy of the statements she had received with the makers of these statements and herseeking additional evidence should same be available. [19] The Arbitrator concluded at page 7 that “Ms.

Bradbury was very clear in her evidence” that her draft report “was approved andacted upon on March 5, 2014[1]”. He accepted that Ms. Bradbury’s conclusion was endorsed by the Deputy Minister of the Departmentof Municipal Affairs on March 5, 2014 and two days later a letter was provided to the Grievor confirming that the investigation “…concluded that your allegations were in fact, false”. [20] The Arbitrator made several references to the fact that Ms.

Bradbury was the investigator of the complaint under the Policy andthat the decision maker under the Policy was the Deputy Minister of the Department in which the disciplinary issue arose. This wasrelevant to his

interpretation of

Article 42.03 as he characterized the “complaint” (as the term is used in

Article 42.03 of the Agreement)to be the date “when the investigation is completed and a decision to move forward has been made”. [21] Relying on the testimony of Ms. Bradbury, the Arbitrator accepted that until March 5, 2014, her report was merely a work inprogress (page 16). [22] At page 13, the Arbitrator reviewed the evidence of Mr. Chris Henley who had been involved in the negotiation of theAgreement. His testimony was that “the purpose of 42.03 is to prevent an employer from holding the matter (of discipline) over anemployee’s head for an indefinite period, and thus the five-day requirement”.

The Arbitrator noted that in Mr. Henley’s opinion, thetime “should have run from the day when it was found that the Grievor made the allegedly false accusations”. The Authorities Cited [23] In addition to this evidence, the Arbitrator was referred to several authorities, one being the appropriate

section of Donald J.M.Brown & David M. Beatty, Canadian Labour Arbitration,

Chapter 7, (Ontario: Canada Law Book, 1984) which he cited at page 17 onthe issue of timeliness as follows: …the generally accepted rule is that the clock starts to run from the moment the employer has knowledge of acts which, if true, wouldestablish an employee’s culpability. Mere suspicion is not enough… [24] The participants at the Arbitration had referred the Arbitrator to two key decisions. The first was N.A.P.E. v. Newfoundland &Labrador (Treasury Board) (NL SC), 2002, 217 Nfld. & P.E.I.R. 104, 116 A.C.W.S. (3d) 533 (Nfld.

S.C. (T.D.))(hereinafter referred to as “Denine”) and the second was Newfoundland and Labrador (Department of Transportation and Works,Marine Services) and CMSG (Greene), Re 2009, 99 C.L.A.S. 341, 2009 CarswellNfld 401 (N.L. Arb.) (hereinafter referred to as“Greene”). [25] In Denine, the disciplinary

Article under consideration by this Court on judicial review was similarly worded as follows: …The Employer shall notify an employee … of his/her discharge or suspension within seven (7) calendar days of the Employer beingmade aware of the event giving rise to such discharge or suspension... [26] Before the Arbitrator and this Court in Denine, on the

interpretation of the term “made aware of the event”, NAPE hadmaintained that the mandatory time-period would run from January 24, 2000 being when “…the employee wellness coordinator, wasmade aware…that the grievor was, in fact, receiving WCC payments” (paragraph 7).

The Employer had argued that the time-periodwould run from January 27, 2000 “being the date on which the grievor failed to provide to the employer a satisfactory explanationpertaining to the double payments, and at which point the employer determined sufficient facts existed to establish a wrongdoing…”(page 8). [27] For an understanding of the significance of the time limits in disciplinary Articles and the importance of deferring disciplinarydecisions until matters have been investigated to the employer’s satisfaction, at paragraphs 15 to 16 of Denine, this Court cited anunreported decision of Labour Arbitrator Morgan Cooper in Whitbourne Youth Centre v.

NAPE (Cronin) (16 January 1998) unreported,as follows: 15 The applicant cites as authority for its position an arbitration decision, Whitbourne Youth Centre v. NAPE (Cronin), unreported, ofMorgan Cooper, January 16, 1998, particularly his comments at pages 20 - 22:

While I agree with the Employer's position that

Article 13.10 underscores the importance of deferring disciplinary decisions until mattershave been investigated to the Employer's satisfaction, I am not satisfied that the provisions of

Article 13.10 extend the maximum periodfor investigation beyond the seven (7) calendar days required for notification of suspension or discharge under

Article 13.01(b). Theopening sentence of

Article 13.10 is clear and unequivocal in directing the Employer to base any disciplinary action arising from aninvestigation on the collective agreement. The notice period required for suspension or discharge under

Article 13.01(

b) is one of anumber of provisions in the collective agreement which may effect the propriety of disciplinary action taken by the Employer. In view ofits mandatory character as evidenced by the use of the imperative "shall" and the presence of a specific penalty for non-compliance,Article 13.01(

b) is clearly one of the most significant collective agreement provisions regulating disciplinary action. If the partiesintended to exempt the Employer from the notice requirement in relation to disciplinary actions arising from an investigation initiatedunder

Article 13.10, I would have expected the parties to communicate that intention in express and unequivocal terms. However, theparties have chosen in the opening sentence of

Article 13.10 to affirm the Employer's obligation to base disciplinary action on thecollective agreement and I am unable to reconcile that affirmation with the Employer's argument that the parties intended to exemptdisciplinary action arising from an investigation initiated under

Article 13.10 from the mandatory notice requirement set out in Article13.01(b). In my view,

Article 13.10 was intended to do no more or no less than to allow the employer, in circumstances where it is unable toinvestigate a matter to its satisfaction but feels an employee should be removed from the workplace, to remove the employee from his orher place of employment with pay. The provisions of

Article 13.10 make no reference to the parameters of the ensuing investigation. Inthe absence of direction on the length of the ensuing investigation, it is reasonable to conclude that the Employer is required to conductits investigation in a manner which allows it to meet its obligations under the collective agreement. As previously noted, one suchobligation is the requirement under

Article 13.01(

b) to provide an employee with notice of suspension or discharge within seven (7)calendar days of being made aware of the event giving rise to the suspension or discharge. 16 Arbitrator Morgan Cooper then went on to discuss the rationale of

Article 13.10 as protecting the dignity of employees: It is evident from the words "justice and dignity" in the heading of

Article 13.10 that one of its primary purposes is to facilitate justoutcomes with full regard for the dignity of employees. The heading underscores the reality that while circumstances may leadreasonable and prudent people to conclude that an employee ought to be removed from the workplace, considerations of justice anddignity dictate that an employee ought not to be penalized financially in circumstances where the ensuing investigation may culminate ina decision that disciplinary action is unwarranted.

In my view, considerations of justice and dignity also dictate that employees suspendedor discharged following a suspension with pay receive the benefit of notice provisions applicable to all other employees suspended ordischarged by the Employer. While I recognize that there may be circumstances where the Employer cannot conduct a properinvestigation within the seven (7) calendar days required for notice of suspension or discharge under

Article 13.01(b), it is worthy of notethat such circumstances may prevail whether or not the disciplinary action follows a suspension with pay. If the Employer believes that itcannot conduct a proper investigation within the seven (7) calendar days provided for notice under

Article 13.01(b), it is free to approachthe Union to seek a waiver of the notice requirement.

Where the Union refuses to waive the requirement, then the Union must recognizethat the Employer must base its decision to suspend or discharge on the best information available to it at the time or risk a declarationthat its decision is null and void. [28] The Cronin case is generally cited as the “Cooper Decision” and is suggested to run contrary to the conclusions reached on theinterpretation of similar disciplinary Articles in other authorities including those cited at paragraphs 17 to 20 of Denine. [29] In essence, the Cooper Decision suggests that an investigation initiated under the disciplinary

Article in question would notaffect the obligation upon the Employer to give notice to the employee. [30] As I will now address, the weight of authority cited to the Arbitrator is that the correct

interpretation is one which would notencourage or require employers to “jump the gun” and act “precipitously on the basis of suggestion, supposition, suspicion orunsubstantiated allegations” (Tank Truck Transport Ltd. v. I.B.T., Local 880 (1988) (ON LA), 34 L.A.C. (3d) 242, 9C.L.A.S. 71 (Ont. Arb.), at page 254. To similar effect, see Memorial University of Newfoundland v.

Memorial University ofNewfoundland Faculty Association (Dale Albers) (10 September 1990), unreported, at pages 5 to 6. [31] Ultimately, in Denine, this Court determined, at paragraphs 24 and 26, that the Arbitration Board’s decision (that the mandatorytime limit commenced on January 27, 2000, being the date on which the Grievor failed to provide the satisfactory explanation) met thestandard of review (at that time, “patently unreasonable”). [32] Turning now to the second authority cited to the Arbitrator, in Greene, Labour Arbitrator Jim Oakley interpreted a similarprovision of another Collective Agreement, worded as follows: “shall notify an employee … of any dissatisfaction concerning his work within seven (7) calendar days of the event of the complaint”. [33] The rationale for time limits for the imposition of discipline, the basis required therefor and whether an investigation must becomplete before the time limit commences were addressed at paragraphs 23 to 25 of Greene as follows:

A) Time Limits 23 I have fully reviewed the relevant provisions of the Collective Agreement in place in this case, the Board's decision as well as the materials placed before the Board as contained in the application before me. Having done so, I have concluded that the Board's determination that the Employer's termination of the Employee was timely is reasonable in the circumstances of this case. 24 First of all, it was not unreasonable for the majority of the Board to determine the issue of credibility of evidence offered by Mr. Tulk and Mr.

Sutton, especially as related to what occurred in the meeting of June 26 or June 27, 2008, in the manner that they did. Notwithstanding their conclusion that

Article 10 of the Collective Agreement contemplates different categories of discipline, one dealing with suspension and dismissal and the other with less severe employee discipline where an employee would continue to be employed, the Board did find here that both parties' conduct in dealing with the June 4, 2008 request for an extension of time limits established a "mutual understanding" that the time limits set out in

Article 10.04 regarding Adverse Reports applied to the Employee's dismissal. This was so even though it was unknown then what discipline, if any, would be handed out. Based upon the "mutual understanding" they found existed, whether correct or not considering the specific language of the Collective Agreement, the majority went on to find that Mr. Sutton had agreed to an extension of those time limits at the meeting held on June 26th or 27th. Such an extension would be permitted by

Article 9.06 of the Collective Agreement. There existed no requirement that this be in writing. 25 It was the Board's responsibility to consider the evidence presented and to make findings of fact regarding this. The reasoning setting out these findings of fact, together with their conclusion on the time limit issue, must here be found to be justifiable, transparent and intelligent as Dunsmuir requires. I am also satisfied that the conclusion reached falls well within possible acceptable outcomes in these circumstances.

Recognizing the deferential standard to be applied, I cannot conclude here that the majority decision was an unreasonable one in these circumstances. [ 34 ] At paragraph 29, Mr. Oakley concluded that the “complaint” in the

Article under consideration was more likely the complaint by the employer against the employee and that the date of the “event of the complaint” was the date when the Employer had “sufficient information to decide whether or not there is cause for discipline”. [ 35 ] On the facts in Greene , the initial investigation of the collision of the ferry with the wharf was completed on April 30, 2009 and the investigator “reached a conclusion” that supported no discipline. “Following a subsequent call from the private wharf owner…a further investigation” followed and this resulted in an “investigation report that led to discipline”.

Arbitrator Oakley concluded that “the event of the complaint was the date upon which the initial investigation was completed, “which was April 30, 2009” (paragraph 31). [ 36 ] As a result, I am satisfied that the Arbitrator in the within case was well aware of the conflicting arbitral authority on the

interpretation of disciplinary Articles similar to

Article 42.03. The Reasonableness Standard [ 37 ] As I recently stated in Muskrat Falls Employers’ Association Inc. v. Resource Development Trades Council of Newfoundland and Labrador , 2018 NLSC 182 , at paragraph 2 : [2] As to the standard of review that should apply, counsel agree that it is well established as ‘reasonableness’ ( Dunsmuir v. New Brunswick , 2008 SCC 9 ). ‘Reasonableness’ is a deferential standard that does not equate to the standard of appellate review that is applied to decisions of this Court. It is designed to recognize two fundamental principles.

Firstly, that within specialized fields such as labour relations, tribunals and arbitrators have particular expertise over the subject matter and secondly, that dispute resolution is intended to be conducted expediently. Application of the ‘reasonableness’ standard requires judges of superior courts to exercise restraint, an admittedly uncomfortable role for judges reviewing an arbitrator’s decision on a question of law (contractual

interpretation) and whose own decision must meet a standard of correctness. [ 38 ] When a judicial review involves a matter of contractual

interpretation, our Court of Appeal in Layman v. Layman Estate , 2016 NLCA 13 , at paragraph 23 , has confirmed that the real questions which I must ask myself are: 1. Whether in light of the record before him, the reasons reveal that the arbitrator chose an

interpretation of the Contract that its words could bear. 2. Whether the

interpretation chosen by the arbitrator was justifiable in light of the facts and the law, even if there were competing

interpretations.

General [ 39 ] I acknowledge that the Arbitrator’s Award contains numerous errors on key dates and in some instances, the name of the supervisor. However, I would characterize these as typographical only (i.e. March 4, 2013 instead of March 5, 2014) and not sufficient to detract from the reasonableness of the Decision as a whole. [ 40 ] Further, I agree that the Arbitrator’s use of terms such as “just and equitable” on page 16 and “no prejudice” on page 20 was not informative of the question before him except as a final “fairness check” to his conclusions.

However, I am required to consider his Decision as a whole and I conclude that these discrete sentences do not give cause to question whether the Arbitrator had applied an improper test. Conclusion on Issue 1 [ 41 ] On Issue 1, I conclude that based upon the evidence he received and the authorities to which he was referred, it was open to the Arbitrator to interpret

Article 42.03 as he did and conclude that it was not intended to require the Employer to give notice to the Grievor on the basis of a draft of an investigator’s findings (page 16) and that the Employer should not be required to “jump the gun” by imposing discipline where just cause is not reasonably apparent” (page 19). [ 42 ] The Arbitrator specifically referred to the Denine decision and he supported the conclusion reached by this Court therein (at page 24).

He explained that while he understood that the parties intended that an employee should not have to wait unnecessarily for the employer to decide what action it would take, this did not require the employer to discharge (or in this case, discipline) without being reasonably assured that the event at issue is really disciplinable. [ 43 ] I am satisfied that, in light of the record before him, the Decision reveals that the Arbitrator chose an

interpretation of the Agreement that its words could bear. Further, the Arbitrator’s Decision transparently described the evidence and the authorities upon which he relied for his conclusions in this respect and they are intelligible. His

interpretation of

Article 42.03 was justifiable in light of the facts and the law, even if there were competing

interpretations. Conclusion on Issue 2 [ 44 ] On Issue 2, the Arbitrator concluded at page 19, “In the present unusual case, i.e. a complaint by the Grievor which apparently revealed falsehood and malicious intent, the employer, which was the Department of Municipal Affairs as represented by the Deputy Minister, did not have the full and considered results of the investigation until March 5, 2014 when the decision to discipline was made and communicated to the Grievor on March 7, 2014”. [ 45 ] The Arbitrator had sufficient evidence and arbitral authority before him to support his determination that the mandatory time limits in

Article 42.03 commenced, in this instance, on March 5, 2014, being the date on which he concluded the investigation was complete and a decision had been made to discipline. His Decision explains that Ms. Bradbury’s role was investigatory only and that there could be no decision until one was made by the Deputy Minister. There was no evidence to contradict the Employer’s position that the Deputy Minister’s decision was made on March 5, 2014. conclusion [ 46 ] Returning to Layman , in light of the record before him, the Arbitrator’s reasons reveal that he chose an

interpretation of the contract that its words could bear and the

interpretation chosen by the Arbitrator was justifiable in light of the facts and the law even if there was a competing

interpretation. His conclusion on the date upon which the Employer was required to notify the Grievor of any dissatisfaction or concerns with her work was supported by the evidence he received and the weight of the arbitral authorities. [ 47 ] I conclude therefore that the Arbitrator’s conclusion on the preliminary issue meets the standard of reasonableness. [ 48 ] For these reasons I would dismiss the request for certiorari . _____________________________ Gillian D. Butler Justice