During the judicial review, the Divisional Court found that, in the Metrolinx decisions, Molson`s decision was interpreted by the GSB as “the only issue left to the arbitrator in the event of a breach of a sunset clause is the amount of compensation paid to the worker.” The conclusion of the sunset clauses is therefore that they do not erase the history of the discipline. From an official point of view, they remove evidence of minor discipline, so that subsequent managers are not willing to have prejudices against an employee who has corrected undesirable behaviors. The other finding is that whether the previous discipline is important today or not depends on many factors, including whether or not it was wilful misconduct, how long it goes back, whether the current event constitutes a “model” and what the mitigating circumstances are. Accordingly, although the arbitrator was not able to take fully into consideration the Grievor`s “disciplinary history”, he was able to examine the Grievors` ability to recognize the seriousness of his negligent misconduct and to respond to requests for improvement as well as the general state of health of the employment relationship. If the parties had had to exclude such considerations, this would have been explicitly stated in the Sunset clause. The arbitrator found that this was a “legal fiction” but a necessary fiction. Since history cannot be changed by collective agreements, staff in the following disciplinary hot water are expected to provide extenuating explanations of the pattern that is emerging. In other words, instead of ignoring the past or assuming that no one knows it, the employee can be asked to address it as part of their explanation of what is happening now. In his decision, Referee Glass used the Wm. Scott test. This test consists of checking whether there is a justification for any discipline and, if so, whether the discipline imposed was appropriate. The adjudicator expressed his willingness to find that there was a good reason to take disciplinary action in this matter.
In examining the Wm. Scott factors with respect to the appropriate level of discipline, the arbitrator considered the impact of the “sunset clause” on the analysis. With respect to the background, Molson`s Divisional Court had considered the results of a full arbitration hearing in which an employee was dismissed for misconduct in the workplace. He had a disciplinary protocol for similar misconduct, but the forfeiture clause in the current collective agreement prevented the employer from taking that fault into account. It was clear that the employer`s investigator and the manager who recommended the dismissal “took into account the employee`s disciplinary file without limiting the registration period they envisage”. First, only the recordings of the grie they wrote are subject to sunset disposition. Recordings of the more serious discipline such as suspension will not be removed from the file. Recordings of non-disciplinary coaching are also not removed from the file. As indicated in the article, the sunset provision does not even apply to reprimands within the 48-month period in the case of a subsequent discipline. While, in this case, the language was narrow enough to allow the arbitrator to trace back to the previous fault, an employer who accepts a broad sunset clause runs the risk of having to maintain the employment of a worker who makes catastrophic mistakes with significant consequences, provided that sufficient time has elapsed between those errors. Metrolinx`s forensic audits were conducted as part of two decisions that followed prior requests to the GSB to find out whether the expiry clause of the collective agreement had been violated upon termination by two metrolinx transit security managers. .
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