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HomeMy WebLinkAbout1987-1186.Esmail.92-06-091186/87 IN THE MATTER OF AN ARBITRATION sunder THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before TEE GRIBVANCE SETTLEMENT BOARD BETWEEN OPSEU (Esmail) - and - Grievor The Crown in Right of Ontario (Ministry of Revenue) Employer BEFORE: N. Dissanayake Vice-Chairperson I. Thomson Member D. Walkinshaw Member FOR THE GRIEVOR L. Trachuk Counsel Cornish, Roland Barristers & Solicitors FOR TRB D. Daniels EMPLOYER HEARING Counsel Mathews, Dinsdale & Clark Barristers & Solicitors November 14, 1991 2 &JqiRtJ On April 6, 1976, the grievor Ms. Yasmin Esmail grieved that she "was improperly denied promotion to the position of Senior Assessment Clerk". By way of remedy the grievance requested that she "be placed in the position of Senior Assessment Clerk. Also that I be compensated for any monies and benefits lost with interest retroactive to March 30/87." This grievance was heard over a number of days between December 6, 1989 and April 24, 1990. The Board issued its decision on September 6, 1990. The grievance was upheld to the extent that the Board found that, for reasons elaborated in that award, the results of the competition were unreliable as to the true qualifications and abilities of the candidates. However, the Board did not see fit to award the position to the grievor in the particular circumstances. Instead, the Board directed that a new competition be conducted between the grievor and the incumbent employee, subject to certain conditions spelled out in the award. It was expressly~ordered that if the incumbent did not apply for the new competition the grievor should be awarded the position. Following this award, the Board was advised that a dispute had arisen between the parties about the remedial order of the Board. The Board convened a hearing to deal with the same. At the hearing we were advised that the incumbent 3 did not apply for the new competition and that in compliance with the Board's order, the employer appointed the grievor to a SAC position. The dispute relates to the issue of compensation for the grievor. Union counsel points out that in the grievance the grievor ~made an express claim to be *compensated for any monies and benefits lost with interest retroactive to March 30/87". The award does not deal with that aspect of the remedial claim. Therefore counsel requests that the Board complete its award by directing that the grievor be compensated retroactive to March 30, 1987, the date on which the incumbent was appointed following the flawed competition process. Jurisdiction Counsel for the Employer takes the position that the Board lacks jurisdiction to now make any determination as to compensation. Counsel points out that the Board granted an extensive remedial order in its original decision and,retained jurisdiction "to deal. with any difficulties that may be encountered in the implementation of this award". Counsel contends that whatever the board directed in its award had been complied with. Thus there are no difficulties outstanding about the implementation of the 'Board's award. Since that was the only aspect over which the Board expressly retained jurisdiction, it is the Employer's position that the. 4 Board is functus officio with regard to all other matters, including~any issue as to compensation. l3rployer counsel made further submissions based on the doctrine of issue estoppel and the Board's decision in @ We make no further reference to these arguments simply Blake. because issue estoppel and the Blake principle have no relevance or application to the present circumstances where this panel of the Board is still dealing with a single and continuing proceeding. Counsel also made reference to the lack of an express statutory power of reconsideration. In our view there is no issue of reconsideration here either because, the Board made no award with respect to compensation. Therefore there is nothing to reconsider as far as the issue of compensation is concerned. That leaves us with the functus argument, which counsel submitted was his primary position. The application of the functus officio doctrine has been considered by the Grievance Settlement Board in Re Fiuliano, 218/79 (Pritchard). There the Board decided that the grievor had been discharged without just cause and directed that he "be reinstated as of Monday November 5, 1979 with no compensation for time off work". The Board remained seized with regard to the question of compensation. Subsequent to the issuance of the award, the union sought a direction from the Board postponing the reinstatement until December 20, 5 i . c i 1979, because the ~grievor had enroled himself in full-time studies at Humber College until that time. The employer took the position that the Board was functus officio and lacked jurisdiction to delay the reinstatement order from November 5 to December 20. The Board reviewed the authorities cited to it and at pp. 12-13 stated as follows: These cases hold that once a board of arbitration has completed its decision-making and issued its decision, its jurisdiction is terminated and it has no power to render any further decision or award.. However, where a board of arbitration reserves jurisdiction to deal with the question of remedy .or parts thereof, its jurisdiction is continued to the extent of that reservation. Thus, where at the request of the parties or on its own initiative a board retains jurisdiction with regard to some aspect of the decision, the board is not functus officio. The difficult question raised by this case is whether the reservation of jurisdiction on one issue retains the Board's jurisdiction on all matters in dispute before the Board or only with respect to the matter specifically reserved. That is, is the Board functus officio on all matters except those actually reserved or does the doctrine of functus apply only when the Board has disposed of all matters in dispute before it. If the latter view of functus were adopted as was urged by counsel for the Union, we are of the opinion that the Board would have jurisdiction to entertain the request to delay the reinstatement order. As was stated above, we were asked at the first hearing and we agreed to remain seized of this matter with regard to the question of compensation. In the telegram of November 5 we dealt with the question of compensation for "time off work" but we did not deal with any other question of compensation and we did not reverse our previous agreement to remain seized with regard to compensation. Therefore, we retain jurisdiction at least on questions of compensation apart from compensation for time off work and if retaining jurisdiction on one issue were sufficient to bar. the effect of functus officio on all other issues, then we could consider the grievor's request for delay. 6 However, we do not accept this expansive notion of our jurisdiction since we do not believe it is supported by the authorities and we are not sure that as a matter of policy that the Board's processes would in general be facilitated by adopting such a notion. While we accept the fact that the doctrine of functus officio in arbitral proceedings originated in purely consensual commercial arbitrations and that it is not necessarily equally suitable in or applicable to a statutory labour arbitration tribunal such as ours, we do believe that at its heart lie certain desirable concepts. It offers finality to proceedings, giving rise to final awards which the parties may interpret, enforce or review. It creates an incentive for parties to put their full and best case before the Board at one time, subject to express reservation of certain matters to a subsequent stage in the proceedings. Perhaps most importantly it permits the parties and the Board to agree to bifurcate the proceedings between, for example, liability and remedy, without inviting a rehearing of the entire case at the second stage in the proceedings. At p.14 the Board reached the following conclusion: Rather, the better view is that jurisdiction is retained onlv with reaard to those issues on which iurisdiction is reserved either exDresslV or imDliCitlV and those issues on which the board has not reached a final conclusion. Whether or not lurisdiction is retained becomes therefore a auestion of fact to be resolved bv reference to the board's decision and the conduct of the oroceedinos before it. On the facts of this case, jurisdiction was reserved only with regard to compensation. In its decision by telegram the Board resolved the issue of reinstatement and fixed a specific date for it to take effect. In addition, the Board disposed of the issue of compensation for time off work. Therefore, these issues were disposed of by the Board and we are functus with regard to them. We therefore have no jurisdiction to change the date of reinstatement. 7 (Emphasis added) This decision, in our view, stands for the proposition that the retention of jurisdiction by the Board on one issue does not exclude the application of the doctrine of functus officio for all purposes. In other words the retention of jurisdiction on one issue by itself does not entitle the Board to deal with any matter as it pleases. However, we do not read that decision as holding that the Board is automatically functus on all issues other than those issues over which jurisdiction is expressly reserved. Thus in the underlined portion of the passage quoted above, the Board lists two areas over which the Board retains jurisdiction, (a) Whose issues on which jurisdiction is reserved either expressly or implicitly" and (b) "those issues on which the Board has not reached a final conclusion". In that case, the Board had not reserved jurisdiction, either expressly or implicitly, on the issue of reinstatement. Therefore, item (a) was not applicable to it. The Board had in addition made a final disposition of the reinstatement issue by directing that the grievor be reinstated. as of Monday November 5, 1979. Therefore, item (b) did not apply either. Thus the Board declared at p. 16 that "the doctrine of functus officio prevents us from chanainq our decision in this case". , 8 111 our view, the circumstances before us are distinguishable. The issue of compensation was clearly put in issue by the grievance. The Board in its decision did not reach "a final conclusion" on that issue. Indeed the Board makes no reference to that issue at all. The Board in & Fialiano, felt constrained against chanainq its award with regard to reinstatement. In contrast, this Board is not called upon to change anything, because we had not even put our minds to the issue of compensation, let alone make a final conclusion on it. Section 19(l) of the Crown EmDlovees Collective Baraainina Act permits the reference for arbitration of any difference inter alia "arising from . . . the alleged contravention of the agreement". When such a difference is referred to the Board, the Board is required, after giving full opportunity to the parties to present their evidence and to make their submissions, "to decide the matter". The section goes on to provide that once the Board decides the matter, its decision is final and binding upon the parties and the employees covered by the agreement." The grievance of Ms. Esmail raised a question of compensation. The parties did not make any submissions on that aspect of the grievance at the original hearing nor did the Board decide that issue in its original decision. To use ., ., 1 . . 5 9 the language of the Board in Re Fisliano (SUDraj‘, the Board has not reached "a final conclusion" on that issue. In the circumstances, despite the absence of an express reservation of jurisdiction with regard to the issue of compensation, in our view the Board has an entitlement, and indeed an obligation, to decide the issue of compensation referred to it as part of the grievance. The doctrine of functus officio does not operate in the particular circumstances to deprive the Board of its jurisdiction under section 19(l). fleerits of claim for comnensation At the second hearing on November 14, 1991, the parties did address the issue of compensation and made submissions. The Board's initial order with regard to re-instatement has been complied with. The issue that remains is whether the grievor is entitled to any retroactive compensation beyond the date that she was appointed as a SAC pursuant to the Board order. Where the Board has ordered that a competition be re-run, it has routinely directed that, if the grievor is successful in the re-run, he or she should be compensated for all lost wages and benefits that resulted from the flawed selection process. e.g. see, Re Essarie, 611188 (McCamus) and & McIlwain, 628189 (Verity). Employer counsel draws a distinction between the situation envisaged in those cases and r 10 the grievor's circumstances here. Counsel points-out that in those stases, the grievor engages in a re-run with the incumbent and wins the second competition, by proving relative equality. From that it may reasonably be inferred that, had the competition been properly conducted in the first place, the grievor would have been successful in the initial competition also. Therefore there is justification for arguing that the grievor had suffered actual losses as a result of the employer's breach. , Counsel contrasts that situation with the grievor's situation. While the Board here directed a re-run of the competition, a re-run never actually took place because the incumbent did not apply. The grievor won the competition by default. Thus counsel submits that "we would never know" whether the grievor would have been found to be relatively equal to the incumbent in qualifications and ability, if the first competition had been conducted properly. Counsel submits that since it has not been established that the grievor would have been appointed to the SAC position if the first competition had been run properly, there is no proof that as a result of the employer's breach the grievor suffered any loss in wages and benefits. Counsel submits that to award compensation to the grievor in these circumstances would be to go against the "make whole" approach in fashioning remedial 1 ’ i ‘~.. . . . . 4 11 orders. We would then be compensating the grievor with no proof that she had,actually suffered any loss at all. We agree that in these circumstances, there has been no finding, either by the employer or by this Board, that the grievor's qualifications and ability were relatively equal to those of the incumbent employee. We must therefore also agree that we do not know whether the grievor would have. won the initial competition, had it been run properly. If we award compensation to the grievor in these circumstances, if she in fact would not have been found to be relatively equal, she derives a windfall, and the employer suffers a corresponding loss. That is one possibility. The other possibility is that the grievor in fact would have been found to be relatively equal and would have won the first competition. If we do not award her compensation in these circumstances, she would not be "made whole" and her losses resulting from the employer's breach would not be redressed. If the Board awards compensation there is a possibility that the employer would suffer a loss to the~advantage of the grievor. On the other hand if we do not, there is an equal possibility that the grievor would suffer a loss to the advantage of the employer. In the circumstances, in our view the choice must be made in favour of the grievor, who is the innocent party. This whole situation was created in the first place by the employer's breach. Unlike the grievor, the employer has been found to be at fault. If someone has to suffer ,the risk of a loss in these circumstances, it must be the parry at fault rather than the innocent party. while the grievor has not established an actual loss, what has been proved is that because of the employer's breach she was denied the opportunity of proving her qualifications and ability in a fair competition. Having being denied that opportunity, she should not further be penalized by a denial of compensation. In these circumstances, it is more appropriate that any loss be borne by the party at fault, the employer. For all of those reasons, the Board makes the following findings. (a) The Board has jurisdiction to deal with the compensation claim of the grievor. In particular, the Board is not functus with regard to that issue. (b) The grievor is entitled to be compensated for the difference in wages and benefits if any, retroactively from March 30, 1987, the day on which the SAC position was filled following the initial competition, up to the day that she was appointed to the SAC position following the Board's decision. . 13 The Board remains seized in the event the parties encounter difficulties in agreeing upon the amounts payable pursuant to this award. Dated this 9th day of .rUIY, 1992 at Hamilton, Ontario. w Vice/;Ch:irperson ,