IN THE MATTER OF AN ARBITRATION PURSUANT TO THE LABOUR RELATIONS ACT, 1995

BETWEEN:

KARMA CANDY INC. (the "Employer")

-and-

UNITED FOOD AND COMMERCIAL WORKERS, LOCAL 175 (the "Union")

RE: GRIEVANCE OF MARIO MILAZZO

DECISION

ARBITRATOR: Daniel P. Randazzo, Arbitrator

APPEARANCES: Brent J. Foreman, Counsel Tiffany Rushing, Manager Human Resources Joe Castro, General Manager Vinita Sihra, Human Resources

APPEARANCES: Matthew Jagodits, Counsel Linval Dixon, Union Representative (First four days) Mario Tardelli, Union Representative (Final two days) Mario Milazzo, Grievor

HEARING DATES: October 24, 2017 May 10, 2018 June 27, 2018 (motion on admissibility of evidence) August 28, 2018 May 9, 2019

\ May 15, 2019

PLACE OF HEARING: Hamilton, Ontario

DATE OF DECISION: July 6, 2019

1. These matters come to be by way of consensual appointment and concern the discipline, a four day suspension, and the eventual discharge of Mr. Mario Milazzo (the "Grievor"). Prior to his discharge, the Grievor was employed by Karma Candy ("Karma") for approximately thirty-six years. He was at the time of his discharge employed as a Shift Monitor.

2. Karma produces candy, both hard and chocolate, for retailers, such as Walmart and Shoppers Drug Mart. The candy is produced pursuant to license arrangements with its particular client retailers. As a food manufacturer, Karma is subject to a rigorous regulatory regime. Of the many safety requirements governing Karma and its relationship to its clients, are the mandatory metal detector checks, which are required to be performed on an hourly basis. The metal detector check, is described as a "critical control point" as it is the final check before the product (candy) makes its way to the public. During metal checks, any stray pieces of metal will be identified, resulting in the product being rejected.

3. The Grievor, as a Shift Monitor, was responsible for maintaining quality but, also responsible for conducting the hourly metal detector checks. It was the Grievor's responsibility to run an operation's check on the metal detectOr to ensure its proper operation. To do so, the Grievor would, on an hourly basis, place a metal card, about the size of a credit card, amongst the finished product. If the metal detector was working properly it would detect the metal card and discard the product. If the detector was not working properly, the metal card would not be detected, and the product line would be shut down to recalibrate the metal detector. The Grievor is given a thirty minute window to complete the metal detector. The metal detector checks take between one to five minutes to complete. It was agreed by both parties that the metal detector check is an important step (the final step) in the candy manufacturing process.

4. I heard from the Grievor, who testified on behalf the Union. I also heard from Ms. Tiffany Rushing, Human Resources Manager, Mr. Dave McLennan, a supervisor, Mr. Joe Castro, General Manager; as well as, Mr. Joe Gallo and Mr. Miroslaw Grzyeownsn, who are line operators and coworkers of the Grievor. Each of whom testified on behalf of Karma. Where there is a conflict between the Grievor's testimony and the testimony of other witnesses. I prefer the evidence of the other witnesses, specifically, Ms. Rushing, Mr. McLennan, Mr. Castro, Mr. Gallo and Mr. Grzyeownsn over the evidence of the Grievor. The Grievor's evidence was inconsistent. For example, on his first day of testimony (June 27, 2018), the Grievor steadfastly maintained that his actions in accusing Ms. Franco of falsifying records and his threat to call BRC Global Standards ("BRC") was an attempt to end the "culture of lying" within Karma. On his second day of testimony (May 9, 2019), he denied ever referring to a "culture of lying". I have taken into account that significant time had passed between the dates of the events, the first day the Grievor testified and his final day of testimony. However, the inconsistencies in the Grievor's testimony could not be attributed to the mere passage oftime. Further, the Grievor's testimony was inconsistent with his prior statements and the documents. This,

contrasted with the testimony of the other witnesses, whose testimony remained consistent in cross examination and consistent between the witnesses. The internal inconsistencies, the inconsistencies with the documents and materials, as well as the inconsistencies with testimony of other witnesses, leads me to the conclusion that the Grievor's evidence was neither credible nor reliable.

5. During the course of the hearing, I was called upon by Karma to entertain and consider evidence arising from the parties' grievance settlement process. The Union objected to the inclusion of this evidence. An additional hearing date was scheduled to allow the parties to present evidence and argue the motion. On June 27, 2018 I heard the motion. Testifying on behalf of Karma was Mr. Gallo, Mr. Grzyeownsn, Mr. McLennan, and Ms. Rushing. The Grievor was the sole witness for the Union. The procedural decision is addressed below. The reasons for upholding the Union's objection to the admissibility of the evidence is incorporated into this decision.

6. I note that the parties agreed that the evidence called for the purpose of the motion was admissible with respect to the decision on the merits and it was open for the parties to rely on such evidence, including the testimony of the witnesses, when arguing the merits of the matters.

FACTS:

7. The Grievor was a long-term employee with thirty-six years of service. He was employed as a Shift Monitor and was the Union's Chief Steward. As a Shift Monitor the Grievor held an elevated position within the bargaining unit and was in a position of responsibility and trust. It was not disputed that the Grievor was responsible for carrying out hourly metal detector checks and that metal detection is a critical control point in the production process.

8. On three separate shifts, January 8, 2017, January 11, 2017, and January 12, 2017, the Grievor failed to do his hourly metal detector check. Notwithstanding his failure to compete the hourly checks, the Grievor completed reports which incorrectly indicated that the metal checks were performed. The Grievor, at the investigation meeting on January 20, 2017, admitted to not doing the metal detector checks and to fraudulently completing the reports. Karma indicated on the Grievor's Employee's Counselling Record, that although they thought a five day suspension was warranted, reduced the Grievor's suspension to a four day suspension because of the Grievor's "honesty" and because the Grievor ensured Karma that it would not be repeated. The Union grieved the four day suspension. I note that prior to the events giving rise to the four day suspension, the Grievor had only two "coachings" on his discipline file. The counsellings were dated January and March 2016 and addressed communications with other Shift Monitors and the failure to do metal detector checks.

9. Following the January 20, 2017 investigation meeting and the four day suspension, the Grievor's attitude changed. On February 1, 2017, in a conversation with Ms. Tiffany Rushing and Mr. McLennan, the Grievor questioned the importance of the metal detector

checks, suggesting that Quality Assurance does two to three checks a shift and that is sufficient. The Grievor also suggested that Karma should not have monitored metal detector checks without advance notice. The Griever accused management of being "sneaky". Further, the Grievor accused the Quality Assurance Manager, Ms. Mary Franco, of knowing that the metal detector checks were not being performed and falsifying documents. The Grievor also said that he would bring inspectors from outside the company to investigate Ms. Franco and the company. Karma took these last comments as a threat and so advised Union.

10. On February 6, 2017, in a meeting with Ms. Rushing and Mr. Castro, the Grievor repeated many of the same comments regarding Ms. Franco and the threat to bring in outside inspectors. The Grievor raised concerns with respect to dirty belts, damaged production plaques, and filter checks. The Grievor claimed to have ten years of evidence with respect to his food safety allegations, although he did not produce the evidence when instructed to do so by Mr. Castro.

11. On February 17, 2017, while meeting again with Ms. Rushing, Mr. Castro and the Union, the Grievor repeated the same or very similar allegations. He accused Ms. Franco of telling employees not to record what, if anything, they find when they performed their filter checks. Employees are mandated to check the filters of the operation and to report if they find any foreign substances in the filters. At the February 17, 2017, the Grievor again threatened to involve a third party to inspect Karma's production processes. The Grievor again threatened to call "BRC" to investigate/audit Karma. These comments were made outside the parties' settlement meeting held that same day.

12. As an aside, Karma is subjected to several regular inspections by food standard agencies. One such group, BRC Global Standards ("BRC") is granted full access to Karma's facility and performs a review of Karma, its manufacturing process, and food safety procedures. A negative finding by BRC could have serious and detrimental effects on Karma's operations, business, and its relationship with its clients. The BRC audits are carried out by SAI Global. It is SAI Global auditors who have access to Karma's facilities and processes.

13. Following the February 17, 2017 meeting, Karma agreed to undertake a review of the filter check and reporting process. It was Karma's understanding that if they did this review, the Grievor would cease with his allegations against Ms. Franco, and discontinue his threats about calling BRC with respect to his allegations.

14. From February 20 to February 22, 2017, Ms. Rushing interviewed several employees to determine how they were doing the filter checks, what they did with the results of the filter checks, and if Ms. Franco had advised them not to record what they found in the filters. The interviews revealed that the employees were performing the filter checks as required. If foreign substances were found in the filters, the substances were brought to Quality Assurance and processed. The employees did not record what they found on the "Chocolate Processing Control Verification Report" ("CPCVR"). Ms. Rushing discovered that the employees were using an older version of the CPCVR, which directed

employees to provide a written record of what was found in the filter. However, the mandated requirements of the filter check process had been amended. Employees were no longer required to provide a written record of what was found in the filter, but were, as referenced above, required to bring the foreign substances to Quality Assurance. The CPCVR was updated following the review conducted by Ms. Rushing and the direction to provide a written record of any foreign substance was deleted from the CPCRV.

15. On February 21, 2017, Ms. Mary Franco filed a harassment complaint against the Grievor. Ms. Franco alleged that the Grievor had singled her out in a conversation with Mr. Joe Gallo (a co-worker of Ms. Franco and the Grievor), in which the Grievor accused Ms. Franco of falsifying documents relating to the metal detector checks, and that she had been "forging" documents for ten years in order for Karma to pass the BRC inspections. Ms. Franco alleged in her complaint that the Grievor had said that he was prepared to "bring Ms. Franco and the company down".

16. On February 27, 2017, Ms. Rushing investigated Ms. Franco's complaint by interviewing Mr. Joe Gallo and Mr. Miroslaw Grzyeownsn. Both Mr. Gallo and Mr. Grzyeownsn confirmed that on February 17, 2017 the Grievor had told them that he wanted his four day suspension overturned and his record cleaned or he "was going to BRC". Both Mr. Gallo and Mr. Grzyeownsn confirmed that the Grievor had accused Ms. Franco of falsifying reports and that he was prepared to "take her down". Mr. Gallo reported that the Grievor stated that if Karma did not "clean up his suspension" he was going to call BRC. Mr. Grzyeownsn confirmed that the Grievor made similar statements concerning his desire to have is discipline record cleaned or he would call BRC.

17. On February 28, 2017, Ms. Rushing met with the Grievor and the Union to discuss the results of Ms. Rushing's review of the filter check system and to discuss the comments the Grievor had been making with respect to Ms. Franco, and with respect to his threat that he was prepared to call BRC. The Grievor did not accept the results of Ms. Rushing's review of the filter check process and continued to say words to the effect that he was prepared to call BRC to "bring Ms. Franco and the company down". During this, as well as previous discussions and conversations, the Grievor linked his four day suspension, his belief Ms. Franco had created a culture of lying, and his threat that he would contact BRC to his disciplinary record and his demand that it be expunged. Mr. Castro responded to the Grievor's threat to call BRC by advising him that if he called BRC "there would be consequences".

18. All employees were affected by a seasonal layoff during the month of March 2017. This lay-off occurs yearly and employees are recalled according to seniority and departmental requirements.

19. On April 10, 2017 SAI Group, the organization responsible to conduct BRCs inspection, advised Karma that the Grievor had called SAI Group, told SAI Group that he had a complaint concerning the upcoming audit of Karma, and requested to speak to the auditor directly. Again, on April 11, 2017, the Grievor called SAI Group, advised that he had a complaint, and requested to speak to an auditor. This was repeated on at least one other

occasion when, on April 18, 2017, the Grievor called SAI Group twice and requested to speak a risk compliance manager.

20. The Grievor's actions in calling SAI Group resulted in Karma's decision to terminate his employment. On May 9, 2019 a termination letter was prepared and, with the Union present, presented to the Grievor at a termination meeting. The termination letter sites a number ofreasons for Karma's decision to terminate the Grievor's employment which can be summarized as follows:

• Repeatedly and loudly disparaged Karma in the presence of co-workers while threatening to "bring karma down."

• Maliciously, or alternatively, in a reckless and willful manner, making false allegations concerning breaches of food safety and product quality.

• Disparaging Ms. Mary Franco, Quality Assurance Manager by accusing Ms. Franco of deliberately creating a "culture of lying", falsifying records and food safety checks. These accusations were made maliciously and intended to damage Ms. Franco's reputation and undermine her authority.

• On three occasions, contacting SAI Global without authorization and for improper purposes designed to harm Karma.

• Given the Grievor's seniority, position as a Shift Monitor the Grievor was in a position of trust and responsibility.

• As chief steward, the Grievor stood in a special position with "extra influence" associated with such a position.

EMPLOYER'S ARGUMENT

21. With respect to the four day suspension, Karma argued that it was admitted that the Grievor did not perform the metal detector checks on January 8, 11, and 12, 2017. Further it was admitted that the Grievor falsified the records to make it appear that he had done the metal detector checks as required. Karma argued that these actions, which must be described as "serious misconduct", were deliberate and repeated. The failure to do the metal detector checks could have enormous consequences for Karma, its clients and the public. Karma also argued that the Grievor was in a position of trust and responsibility and was well aware of the importance of the metal detector checks.

22. Although the Grievor showed signs ofremorse and acceptance ofresponsibility at the investigation meeting, and this caused Karma to impose a four day suspension instead of a five day suspension, which was their initial response; after the investigation meeting, the Grievor clearly did not accept responsibility. This, Karma argued, demonstrated that a four day suspension was warranted and reasonable.

23. With respect to the termination, Karma argued that evidence demonstrates that the Grievor acted maliciously and recklessly in openly accusing Ms. Franco of falsifying documents, years of lying, and using fraudulent documents to obtain BRC's certification. Karma argued that the Grievor on several occasions said that he would bring down both Ms. Franco and company and that his motivation to do so was because he was

embarrassed by the four day suspension given to him for failing to do the required metal detector checks.

24. Karma argued that the Grievor wanted his disciplinary record wiped clean and if Kanna did not do this he would contact BRC. Karma describes this a threat to the company and a threat which the Grievor carried out by calling SAI Global. Karma argued that the Grievor's motives were not pure or tinselfish. The Grievor threatened the company that he would call BRC unless his discipline record cleared. Karma argued that the investigation of the filter checks, the allegations made against Ms. Franco, and the calls to SAI Group were all about the Grievor and his desire to have his record wiped clean.

25. Karma argued that the evidence demonstrates that the Grievor wanted, for his own purpose, to sabotage or harm the company. Given his position of trust and responsibility, discharge was the only option available to address this misconduct.

UNION'S ARGUMENT

26. The Union argued that the Grievor's allegations with respect to food safety were accurate and sincerely held. The Union pointed to the fact that Karma conducted an investigation of the filter check process and determined that the process, as described by the Grievor, was flawed. Karma corrected this process by amending the applicable form.

27. The Union argued further that the Grievor raised several food safety concerns including dirty belts, damaged plaques, and pieces ofripped or torn gloves found in the product, which Karma refused or failed to investigate. Further, Karma refused to bring them forward to Ms. Franco, and further refused to involve her in the process. The Grievor remained consistent in his claims when he met with Karma management on February 1, 6 and 28, 2017 when he asked several times to meet with Ms. Franco, and when he advised of the various food safety concerns that he had observed.

28. The Grievor, who like any whistle blower, is justified in bringing these types of concerns forward. His intentions in doing so were justified by Karma's refusal to act on his allegations and their refusal to involve Ms. Franco, the Quality Assurance Manager to assist in the process. The Grievor's actions in contacting SAI Global were motived by his concerns with respect to food safety. The Union noted that Karma, in their investigation conducted by Ms. Rushing, only looked into the issues surrounding the filter checks and did not investigate the other concerns (for example, dirty belts, damaged plaques) that the Grievor also raised.

29. The Union acknowledge that the Grievor perhaps could have handled the situation better by providing his concerns in writing, however, the Union noted that this was not a requirement and although it may have facilitated the process, the failure to provide the food safety concerns in writing should not have aborted the investigative process, and was not evidence of a malicious intent.

30. The Union pointed to a number of mitigating factors which, when considered, demonstrate that termination was not appropriate. The Grievor has thirty-six years of service. Significant weight must be given to the Grievor's length of service. The Union also pointed to the Grievor's disciplinary file which had, prior to the four day suspension (which is before me), no discipline on file. Given the twenty-four month sunset clause, the Union argued that the Grievor had no discipline on his record during the past twenty four months.

31. With respect to Karma's argument that the Grievor was a chief steward and as such was in a special position and should be held to higher level ofresponsibility, the Union argued that the case law does not support such a finding. Although the Union acknowledged that the Grievor was in a position of trust and responsibility as a Shift Manager, the Union argued that the Grievor's role as a chief steward has no role in the discipline analysis.

32. The parties relied on the following case law in support of their respective positions: A.B.G. WI U v. AFG Industries Ltd., 1998 CarswellOnt 5647, 75 L.A.C. (4th) 336 (Herlich); British Columbia (Attorney General) v. B. C. G.E. U, 1981 CarswellBC 1176, [1981] B.C.C.A.A.A. No. 9, 3 L.A.C. (3d) 140 (Weiler); Haydon v. Canada, [2001] 2 FC 82, 2000 CanLII 16081 (FC); Imperial Parking Canada Corp. and UFCW, Local 175 (Kiar), 2010 CarswellOnt 12294, 103 C.L.A.S. 170 (McNamee); Wm. Scott & Co. v. C.FA. W, Local P-162, 1976 CarswellBC 518, [1976] 2 W.L.A.C. 585, [1976] B.C.L.R.B.D. No. 98 (Weiler, Chair, Alcott, Macdonald); MacMillan Bloedel Ltd. v. IWA.-Canada, Local 1-85, 1993 CarswellBC 3105, [1993] B.C.C.A.A.A. No. 23, 33 L.A.C. (4th) 288 (Hope); Canada Post Corp. v. C. UP. W., 2010 CarswellBC 3574, 202 L.A.C. (4th) 375 (Lanyon); Mill & Timber Products Ltd. v. IWA-Canada, Local 1-3567, 1996 CarswellBC 3050, [1996] B.C.C.A.A.A. No. 514, 61 L.A.C. (4th) 52 (Munroe); Birchwood Terrace Nursing Home v. UFCW, Local 17 5, (September 22, 2017, unreported, Chauvin); USWA, Local 3257 v. Steel Equipment Co., 1964 CarswellOnt 498, [1964] O.L.A.A. No. 5, 14 L.A.C 356 (Reville, Park, White).

DECISION

33. Prior to dealing the parties' arguments with respect to the merits of the matters before me, it is necessary to address a procedural issue raised while Ms. Rushing was testifying. As part of Ms. Rushing's testimony, Karma sought to rely on statements made by the Grievor during a grievance settlement meeting and notes taken during the settlement meeting in an attempt to establish that the Grievor had threatened Karma that if his disciplinary record was not expunged he would contact BRC with respect to his various food safety concerns. The Union objected to the admissibility of this evidence on the grounds that it was subject to a settlement privilege. A day of hearing was used to allow the parties to call evidence and to argue the merits of the motion.

34. On June 27, 2018 I heard the Union's motion to exclude the statements and evidence from the parties' settlement meeting. Although it was the Union's motion, the parties agreed that Karma would call its evidence followed by the Union. I heard from Mr.

Gallo, Mr. Grzyeownsn, Mr. McLennan and Ms. Rushing. The Grievor testified on behalf of the Union.

35. Ms. Rushing testified with respect to the discussions that took place during the February 17, 2017 grievance settlement meeting. At this meeting, she described the Grievor's comments as including a demand to have his discipline (four day suspension) reversed or he would call BRC and Karma's clients. Ms. Rushing testified that the Grievor commented that Karma did not want anything on their record, and he did not want anything on his. She also testified that during meetings on February 1, 6, and 28, 2017 the Grievor made similar comments concerning calling BRC which Ms. Rushing described as "threatening" to the company.

36. Mr. McLennan testified that on February 1, 2017 the Grievor made comments to the effect that the hourly metal detector checks were not important because Quality Assurance also does them two to three times a shift, and the only reason Karma does them is because the clients want them done. Mr. McLennan also testified that the Grievor stated that he wanted "full redress" with respect to his discipline record or he would seek outside help and "bring the company down".

37. Mr. Gallo and Mr. Grzyeownsn confirmed that during a conversation with them on February 17, the Grievor accused Ms. Franco of falsifying documents and lying about the filter checks. Mr. Gallo and Mr. Grzyeownsn testified that the Grievor also made comments to the effect that if company was going to embarrass him he would embarrass them; and finally he stated that he wanted his disciplinary record cleared or he would call BRC. Both Mr. Gallo and Mr. Grzyeownsn testified that they told the Grievor that if he called BRC he could ruin the company, and everyone would be out of a job.

38. The Grievor partially denied the comments but admitted that he said he wanted his disciplinary record "reviewed" not cleaned, he did not say he was going to bring Ms. Franco down but wanted her involved in the process. In cross examination the Grievor was evasive and argumentative. The Grievor testified that in raising what he believed to be safety concerns and threatening to call BRC, he was merely trying to work with Karma to change the "culture of lying". In short, the Grievor described his comments not as threatening but as an attempt to help his employer.

39. Karma argued that the statements made during the settlement meeting were not "real" attempts to settle but were in fact threats to the company. Threats, Karma argued, are not protected by the settlement privilege.

40. Karma also argued that the Grievor waived the privilege when he repeated the same, or very similar, threats to his colleagues, to Mr. McLennan, and Ms. Rushing at different times outside the settlement meeting.

41. The Union argued that the discussion made during the settlement or grievance procedure are privileged. Statements made during the settlement process cannot be used as a spring board to further discipline. The Union pointed out that the purpose behind privileged

discussions during the settlement process is to encourage discussion and resolutions of grievances.

42. The Union argued that Ms. Rushing considered the Grievor's statements of "wipe my discipline record clean and I will not go to BRC" as a settlement offer. She may have rejected the offer, but her evidence was that she considered it as such. Karma is now describing it as a threat but at the time they characterized it as a settlement offer.

43. The parties relied on the following case law: 725952 Ontario Ltd. v. Desuri Homes Inc., [1995] O.J. No. 1208 (0.C.J.); Greenwood et. al. v. Fitts, [1961] B.C.J. No. 143, 29 D.L.R. (2d) 260 (B.C.C.A.); A.T.U. v. I.C.T.U., 1995 CanLII 9258 (AB QB); I.A.FF, Local 626 v. Scarborough (City), [1972] O.L.A.A. No. 11, 24 L.A.C. 78 (Shime); Winners Merchants International LP v. Workers United Ontario Council, 2011 CarswellOnt 12172, 108 C.L.A.S. 184 (Sheehan).

44. On August 15, 2018 I is issued the following bottom line decision:

After hearing the evidence, the parties' argument and reviewing their authorities, I make the following bottom line decision with reasons to follow:

1. Discussions and conduct made during a grievance settlement meeting are covered by a settlement privilege.

2. To the extent that the Griever may have made the comments at a grievance settlement meeting, the evidence of those comments alleged to have been made at the grievance settlement meeting are inadmissible. The evidence indicates that the grievance settlement meeting took place on February 17, 2017 - to the extent that the comments may have been made during that meeting, those comments are inadmissible as they fall under a settlement privilege. To the extent that the Grievor repeated very similar comments or intentions outside the settlement meeting did not act as a waiver of the privilege.

3. To the extent that the Griever repeated the comments to co-workers on February 27, 2017, to Mr. Dave McLennan on February 1, 2017, and on February 28, 2017, at the review or investigation meeting, the evidence relating to those comments is admissible and the Employer is entitled to rely on those comments/conduct and entitled to argue that the comments can and should be characterized as a threat to the Employer.

This matter will proceed as scheduled on August 28, 2018.

45. Discussions during the grievance procedure are privileged. There are few exceptions to the privilege. Generally, the privilege is lost where there is a dispute over the existence of a settlement or where there is a dispute with respect to the terms of a settlement.

46. Karma is correct to point out that there are other exceptions to this privilege. In 725952 Ontario Ltd. v. Desuri Homes Inc., supra, the Ontario Court of Justice held that

statements made by a party were not intended ·as a settlement offer but were "threatening with a hint of blackmail". On this basis the court did not uphold the claim to a settlement privilege. In the matter before me, the Grievor's comments made during the settlement discussion, although threatening, were intended as a settlement offer and were, at the time, considered by Ms. Rushing to be a settlement offer. In this regard, the exception expressed in 725952 Ontario Ltd. v. Desuri Homes Inc., supra, does not apply. Further, it is my view that the privilege which attaches to the grievance procedure and statements made during the grievance procedure is a broader privilege than what might otherwise be described as a "settlement privilege". Statements made during the grievance procedure, are subject to a "grievance procedure privilege", and regardless of whether they are offers to settle or not, the statements are privileged. See for example, IA.FF., Local 626 v. Scarborough (City), supra, at paragraph 37, wherein Arbitrator Shime confirms that discussions at a grievance settlement meeting are undertaken on a without prejudice basis and cannot be used as a "springboard" for further discipline:

37. The generally accepted view of conversations made during the grievance procedure is that they are privileged in the sense that the parties conduct those conversations on a without prejudice basis. See, e.g., Re United Mine Workers, District 50, and Caldwell Linen Mills Ltd. (1960), 10 L.A.C. 356 (Little), and there is a presumption that except in unusual circumstances conversations in the course of the grievance procedure including admissions ofliability are not to be admitted into evidence unless there is some indication that the parties have waived the privilege which attaches. If the grievance procedure becomes the source or springboard for further disciplinary measures arising out of the conversations, and the conduct of the parties involved, it will not be used and that should not be permitted within any scheme oflabour relations.

47. Arbitrator Sheehan's comments in Winners Merchants International LP v. Workers United Ontario Council, supra, are also very helpful in describing and applying a grievance settlement privilege. At paragraphs 25 to 27 Arbitrator Sheehan describes the privilege as covering more than settlement offers but can also, for example, encompass the grievor's conduct.

25 The first issue to be resolved is the admissibility of the May 13, 2011 grievance meeting discussions regarding the written warning previously issued to the griever. Arbitraljurisprudence has evolved to the point that privilege is generally attached to all grievance procedure discussions whether or not those discussions are associated with the actual settlement of the grievance. This view was succinctly captured by Arbitrator Simmons in Upper Canada District School Board (supra): lt is agreed that, as a general rule, conversations held during the grievance procedure are privileged in the sense the parties conduct their conversations on a "without prejudice" basis. The purpose of the grievance procedure is to encourage open and frank discussions with a view to encouraging settlement of the dispute. This privileged communication has been held to extend beyond communication specifically aimed at reaching a settlement. The privilege is not restricted to conversations but to written communications as well. Thus, as a general rule, any communication during the grievance procedure process

has been regarded as privileged communication and, therefore, not admissible in any subsequent arbitration proceedings.

26 Against this background, I have some difficulty in accepting the Employer's submission that the privilege was not applicable to the discussions in question since only a small portion of those discussions were directly related to the resolution of the written warning issued to the grievor. Parties often, as patt of grievance procedure discussions, move beyond the discussion of the facts of the particular disciplinary sanction. It would hinder the goal of fostering open and frank discussions if the parties had to be concerned that their conversations were no longer privileged because the discussion had veered away from resolving the particular facts associated with the grievance. I also have difficulty accepting the suggestion that the privilege should not be applicable in this proceeding because those discussions were in relation to the written warning grievance as opposed to the termination grievance that is the subject matter of this proceeding. The privilege, to have value, has to relate on a general basis to any other subsequent proceeding between the patties.

27 Finally, there is considerable merit to the Union's position that the grievor's purported confrontational and defiant attitude during the grievance meeting should not be used to justify discipline in a subsequent proceeding. The participants in grievance meeting discussions should be able to speak freely and without fear ofrecrimination. As opposed to the "shop floor" such a meeting is an opportunity for an employee, and/or the union, to express displeasure and/or disagreement, with a particular employer rule or policy. While ideally, such meetings should be conducted with respect and decorum, opinions are often expressed forcefully and the discussion can, at times, get heated. It is recognized, however, that an employee's behavior at a grievance meeting, could "cross the line" such that it no longer deserved to be protected from disclosure; as was the case in the Maple Lodge Farms, supra, case, relied upon by the Employer where Arbitrator Swan found that privilege was not applicable to threats made by an employee to a supervisor during the course of the grievance procedure. The grievor, in the case at hand, did not threaten anyone, and in my view an arbitrator should be extremely reluctant to allow a grievor's attitude or demeanor at a grievance meeting to be admitted into evidence to support further disciplinary sanctions against the employee. As was observed in the extract from the 1.A.F.F., Local 626 v. Scarborough (Cit)~ (1972), L.A.C. 78 (Ont. Arb.) (Shime) decision which was referenced in the cases respectively relied on by the patties to argue the privilege issue:

If the grievance procedure becomes the source or springboard for further disciplinary measures arising out of the conversations, and the conduct of the parties involved, it will not be used and that should not be permitted within any scheme oflabour relations.

48. In Winners Merchants International LP v. Workers United Ontario Council, supra, Arbitrator Sheehan held that evidence suggesting the grievor was confrontational and defiant during the grievance settlement meeting could not be relied upon.

49. It is also important to understand that Karma did not have to rely on the comments made during the grievance settlement process to substantiate their claim that the Grievor threatened his employer and followed through on such threats. I note that the Grievor made similar comments to Mr. McLennan and Ms. Rushing outside of any settlement meeting or discussions and made similar comments to Mr. Gallo and Mr. Grzyeownsn. Furthermore, there is no dispute that the Grievor contacted SAI Global.

50. Although the Grievor's comments during the settlement meeting are border line and approach the exceptions expressed in the case law, where they were, at that time, intended as a settlement offer, viewed as a settlement offer by Karma (albeit a completely unacceptable offer), and where Karma can establish through other evidence and sources, I do not consider it appropriate nor necessary to violate the grievance procedure/settlement privilege.

51. With respect to the issue of waiver, the discussions between Mr. Gallo, Mr. Grzyeownsn and the Grievor suggest that the Grievor was not disclosing what was discussed in the settlement meeting. His comments to his coworkers were clearly similar to the comments made during the settlement meeting but fall short of a waiver as the Grievor was not disclosing what the parties, and more importantly, what the Union discussed during the settlement meeting. For this reason, I dismissed the claim that the Grievor waived the settlement privilege. It bears repeating that Karma is open to rely on the Grievor's statements made outside the February 17, 2017 meeting. For example, it is open for Karma to rely on the Grievor's statements made to Mr. McLennan, Ms. Rushing and Mr. Castro during the February 1, 6, and 28th discussions. Furthermore, it is open for Karma to rely on the statements made by the Grievor to Mr. Gallo and Mr. Grzyeownsn.

52. For clarity purposes, I confirm that I have disregarded and not relied on the Grievor's statements made at the February 17, 2017 settlement meeting. Furthermore, I note that, with the agreement of the parties, the minutes of the February 17, 2017 meeting that relate to the grievance settlement discussions have been redacted.

DECISION ON THE MERITS

Four day suspension

53. With respect to the failure to perform the metal detector checks on January 8, 11, and 12, 2017, and falsely recording that the metal detector checks were performed, the Grievor at the investigation meeting accepted responsibility for his actions, confirmed his responsibilities to perform the metal detector checks, demonstrated remorse for his actions, and confirmed that they would not be repeated. On this basis, Ms. Rushing considered that a four day suspension, as opposed to a five day suspension, was appropriate.

54. Following the January 20, 2017 grievance meeting, on a number of occasions the Grievor made several statements which indicated that he had not accepted responsibility. For example, the Grievor said that the metal detector checks were not important because

Quality Assurance does two to three metal detector checks throughout each shift, the employer was "sneaky" and should have warned the employees they were going to monitor the metal detector checks, and he viewed the discipline as an embarrassment and not as a corrective action.

55. Furthermore, during his testimony, the Grievor, for the first time, provided an explanation of why he did not perform the metal detector checks. The Grievor testified that his assigned machine, the Winkler #1, was a difficult machine to operate and that it had several breakdowns throughout the shifts. The time associated with dealing with these breakdowns made it impossible to do the metal detector checks. I have a number of problems with the Grievor's evidence and explanation. It was not until May 9, 2017 that the Grievor offered this explanation. The notes and minutes from the various meetings (January 20, February 1, 6, or 28, 2017) do not reflect the Grievor providing this explanation. The problems associated with the Winkler #1, ifl were inclined to accept the Grievor's evidence on this, which I am not, it might explain or justify missing one, two, or perhaps three metal detector checks on a shift, but given that the metal detector checks take only one to five minutes to perform and the Grievor has a thirty minute grace period to perform the check, the Grievor's testimony does not explain how he failed to do thirty (30) metal detector checks over the course of three shifts. The Grievor's explanation is contrived.

56. Furthermore, to the extent that the Grievor's evidence may offer some explanation for missing some of the metal detector checks, it offers no explanation for the Grievor's actions in fraudulently completing the paperwork and recording thirty (30) metal detector checks that were not performed. In this regard, it was the Grievor's evidence that he was advised, in the past, by the Quality Assurance Manager, Ms. Franco, to falsify the documents when a metal detector check had not been completed. I did not hear from Ms. Franco, and although the Grievor's statements in this regard remained, for the most part, unchallenged, I note that the Union confirmed and the Grievor admitted to the falsification of the records and accepted that some discipline was warranted but a four day suspension was excessive.

57. Although I may have been inclined to reduce the four day suspension, in light of the Grievor's years of service, his clean discipline record, and his acceptance of responsibility at the January 20, 2017 grievance meeting, given his actions and statements post January 20, 2017 and his less than acceptable explanation provided during his testimony, I am of the view that a four day suspension is within the realm ofreasonable and it would be inappropriate for me, in these circumstances, to tinker with or alter the discipline imposed. The grievance relating to the four day suspension is dismissed.

Termination

58. With respect to the Grievor's termination, the Union argued that the Grievor was a "whistle blower" and was acting upon sincerely held concerns regarding food safety. He had raised these concerns internally, requesting that Ms. Franco, the Quality Assurance Manager be involved in these discussions, and only when Karma refused to involve her

and when they failed to perform a complete investigation of his food safety concerns, did he turn to SAI Global, the organization responsible for conducting the food safety audits. The Union acknowledged the Grievor may have handled the situation better, for example he could have provided his concerns in writing, but that does not detract from his attempts to raise legitimate concerns.

59. In British Columbia (Attorney General) v. B.C.G.E. U, supra, Arbitrator Weiler held that an employee's duty of loyalty and fidelity do not impose an absolute "gag rule" against an employee making public statements against his/her employer's interest. The fact scenario of British Columbia (Attorney General) v. B.C.G.E. U, supra, is distinguishable from the matter before me; however, the decision does stand for the principle that employees who disclose confidential or harmful information, may rely on a "whistle blower defence" to mitigate a disciplinary penalty where, for example, the employee or employees disclose the information to expose wrongdoing, and practices or products that may endanger the public.

60. In Imperial Parking Canada Corp. and UFCW, Local 175, supra, Arbitrator McNamee commented that an employee who discloses information damaging to its employer in a genuine attempt to inform the public may not be viewed in the same light as an employee who is acting out of malice or a desire for personal gain. See Arbitrator McNamee's comments at paragraphs 30 to 31:

30 Employees owe a clear duty ofloyalty and confidentiality to their employer. An employee who makes public complaints against his/her employer risks discipline and, ultimately, discharge. An employee who discloses confidential information about his/her employer risks the same.

31 There is, however, a case to be made that a true "whistle blower" who finds him or herself in possession of information which genuinely shows an employer to be acting in such a manner as to be blatantly illegal or fraudulent, or reckless as to matters of employee or public safety (to choose but two possible examples), should not be viewed in the same light as an employee who is acting out of malice or a desire for personal gain.

61. I agree with the comments of Arbitrator McN amee and take from the jurisprudence that a true whistle blower must have a genuine belief that information requires disclosure to reveal fraudulent or reckless matters which may involve employee health and safety or public safety. Further, the true whistler blower must not be motivated by malice, a desire for personal gain, or any other improper motive. Also, as set out by Arbitrator Weiler in British Columbia (Attorney General) v. B. C. G.E.U, supra, amongst other criteria, an employee must also attempt to exhaust internal channels or mechanisms before "going public".

62. Turning to the Grievor's concerns with respect to food safety and Karma's procedures, I am of the view that these concerns were not genuinely or sincerely held by the Grievor. The Grievor was more concerned with his disciplinary record than he was with respect to the public and food safety. The Grievor's timing in raising these concerns is suspect. The

Grievor has thirty-six years of service, was respected in the workplace, and as a Shift Monitor, was in a position of trust and responsibility; yet he did not raise any concerns with respect to food safety and Karma's procedures until he was handed a four day suspension. This suggests that the Grievor's concerns were more a matter of convenience or a bargaining strategy than a genuine or sincere concern for the public's safety. Further, the Grievor refused to provide his concerns in writing to Karma and refused to produce to Karma any evidence of these concerns, notwithstanding his claims that he was in possession of same. I note that when the Grievor did testify on May 9, 2019, he did produce a handwritten list of concerns, but this was, in essence, too little too late. I am of the opinion that if the Grievor had genuine concerns he would have readily produced a list of those concerns and any documents or material to substantiate those concerns. However, he did not. Further, I note that the Grievor in his meetings with Ms. Rushing and Mr. McLennan commented that the hourly metal detector checks were not necessary given that Quality Assurance did two to three random checks each shift. If his concerns with respect to food safety and procedures were sincerely held, I would not have expected the Grievor to question or demean the importance of the hourly metal detector checks. I would have expected the Grievor to maintain the views expressed at the January 20, 2017 investigation meeting where he confirmed their importance and recommitted to ensure that they would be completed in the future.

63. Also, the failure to provide his concerns in writing when asked to do so by Mr. Castro and Ms. Rushing, demonstrates a failure to exhaust any internal channels or mechanisms as prescribed by Arbitrator Weiler in British Columbia (Attorney General) v. ·B.C.G.E. U, supra. It reasonable, and expected, that Mr. Castro would want the Grievor to provide a written list of concerns and any information substantiating those concerns before engaging in a comprehensive review. The Grievor's refusal to do so demonstrates both a lack of sincerity as well as an unwillingness to engage in an internal process before exposing the concerns publicly to SAI Global.

64. The Grievor was not motived by a concern for public safety but was motivated by self­interest and reprisal. The Grievor, on several occasions linked his discipline record and his desire to clear that record to his accusations concerning Ms. Franco and his threat to call BRC. He wanted to embarrass Ms. Franco and Karma in the same manner that he was embarrassed by the four day suspension. This is not the altruistic motivation of a true whistle blower. In his evidence, the Grievor attempted to explain his actions by suggesting that he was trying to work with the company and that he wanted to help the company change its "culture of lying". The Grievor' s statements and threats, as confirmed in the testimony of Ms. Rushing, Mr. McLennan, Mr. Castro, Mr. Gallo and Mr. Grzyeownsn, demonstrate otherwise. He was not motivated by a desire to help Karma but by a desire to harm Karma.

65. Based upon the above, I find that the Grievor was not a true whistle blower as that term is described and characterized in British Columbia (Attorney General) v. B.C.G.E. U, supra, and in Imperial Parking Canada Corp. and UFCW, Local 175, supra. Consequently, I do not consider the "whistle blower defence" as a mitigating factor and

view the Griever's actions in threatening to call BRC/SAI Global and the carrying out of that threat as a breach of trust and loyalty.

66. In an attempt to coerce his employer into clearing his discipline record, he set out on a campaign attacking the reputation of Karma's Quality Assurance Manager, Karma's food safety procedures, threatened to call Karma's food certification and auditing agencies, and followed through on that threat by calling SAI Group three times in the month of April 2017 just prior to the pending audit.

67. There are a number of aggravating factors which support Karma's decision to terminate the Griever. The Griever's disciplinary record is an aggravating factor. At the time of his termination the Griever had a four day suspension on his record. I upheld the suspension.

68. The Griever was in a position of trust and responsibility. As a Shift Monitor the Griever was responsible for product quality and for conducting metal detector checks. He was a source of information and assistance to his co-workers. Although all employees have a role in food safety, the Shift Monitor had the added responsibility of ensuring that metal detection was operating properly. Metal detection, as described by Karma, is a critical control point and is the final check before the product makes its way to the public. The Union acknowledged that a Shift Monitor is a position of trust and responsibility, while clarifying that the Griever did not use his position to attempt to encourage other employees to engage in inappropriate conduct. I accept that the Griever did not attempt to engage coworkers in any malfeasance and this is, to an extent, a mitigating factor. However, the Griever owed a duty of trust and loyalty to his employer, duties he breached by threatening to call BRC/SAI Global and by following through on that threat. I note that I did not consider the fact that the Griever was the chief steward as an aggravating factor. See for example, Mill & Timber Products Ltd. v. !WA-Canada, Local 1-356, supra.

69. The Grievor's actions were motivated by self-interest and reprisal. His attacks on Ms. Franco and Karma, and his threat to call BRC were all motivated by his desire to clear his discipline record and his desire/attempt to embarrass Ms. Franco and Karma.

70. His statements and his threats were not the result of a single flare up or momentary outburst. He repeated his statements and threats numerous times over several weeks to a number of different managers and coworkers. On February 1, 2017 he made his statements and threats to Ms. Rushing and Mr. McLennan. He repeated those same, or very similar statements and threats, to Ms. Rushing and Mr. Castro on February 6, 2017 and again on February 28, 2017. Further, he made similar threats and statements to Mr. Gallo and Mr. Grzyeownsn on February 17, 2017. During the March 2017 layoff, he had an entire month to rethink his statements and position, but chose, when returning to work in April 2017 to call SAI Group three times in an attempt to carry through with his threat to involve the food certification and audit agency. I note that I have not considered the statements of Ms. Franco, produced in Ms. Franco's harassment complaint filed against the Griever. Ms. Franco did not appear before me and did not confirm her statements contained in her harassment complaint. I did, however, rely on the statements of others,

Mr. Gallo and Mr. Grzyeownsn who testified to the statements made by the Grievor on February 17, 2017.

71. The Grievor had at the time of his termination thirty-six years of service. He is a long­term employee who has invested the better part of his life as a Karma employee. His length of service was considered as a significant mitigating factor. I have also considered the fact that the Grievor did not attempt to persuade other ~mployees to engage in any malfeasance. In accordance with my early finding, I did not consider the Grievor to be a whistle blower and did not consider the "whistle blower defence" as a mitigating factor.

72. Having reviewed the evidence, the jurisprudence, and having considered the parties' arguments, I am drawn to the conclusion that the aggravating factors far out weight those that may be considered as mitigating factors. The Grievor's position of trust and responsibility comes with it an expectation that he will not act in a manner which could maliciously sabotage his employer. The Grievor's actions were not isolated nor a momentary outburst. The Grievor's statements were repeated several times, over a long period, and to a number of different coworkers. In calling SAI Global, the Grievor was motivated by self-interest and reprisal. The Grievor was on a path of self-destruction, motivated by retaliation or revenge and his thirty-six years of service is not sufficient to mitigate the damage he caused to his employment relationship and the trust and responsibility associated with his position.

73. For the above reasons, I dismiss the grievance alleging an improper termination.

Dated at Ancaster, Ontario the 6th day of July 2019.