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HomeMy WebLinkAbout1987-1841.Beintner.89-01-26ONTARIO EMPLOYESDCLP COURONNE CROWNEMPLOYEES DE L’ONI*RIO in GRIEVANCE CQMMISSION DE SETTLEMENT REGLEMENT BOARD DES GRIEFS 1841/87, 1842187 ( Between: /- Before: i IN THE HATTER OF AN ARBITRATION under THE CROWN EHPLOYEES COLLECTIVE BARGAINING ACT before THE GRIEVANCE SETTLEMENT BOARD OPSEU (H. Beintner) and The Crown in Right of Ontario (Ministry of Transportation & Communications) For the Grievor: For the Employer: Hearing: February 26, 1988 R.J. Roberts S. Hennessy M. O'Toole Vice-Chairperson Member Member R. Nelson Counsel Gowling & Henderson Barristers and Solicitors D. Francis Counsel Winkler, Filion & Wakely Barristers and Solicitors Grievor Employer P i DECISION At the outset of the hearing in this matter, counsel for the Ministry made tW0 preliminary objections to jurisdiction but consented to delaying their argument until after the evidence upon the merits had been,entered. Thereafter, the Board heard submissions from both parties regarding the preliminary objections and the merits of the case. For reasons which follow, the second of the preliminary objections is aiiowed and the grievance is dismissed. Since 1974 the grievor has been employed by the Ministry ab an Area Enforcement Officer. In this capacity, he primarily deals with the licencing and inspection of commercial vehicles. Until 1987, the grievor worked from 8:00 a.m. to 4:00 p.m., Monday to Friday. In April, 1987, however, the Ministry adopted a new approach to enforcement which involved scheduling its employees on' a 24 hour per day, 7 day a week schedule. This was t0 raise the profile of the Ministry and eliminate the possibility of commercial vehicles running at night with the assurance that they would not get stopped and inspected. The grievor's new schedule required him to work on the occasional Sunday. For example, in 1987 he was required to work on just cne Sunday. May 24. When the grievor notice5 this on his work schedule he immediately objected. He asked his super~~lsor 2 whether he could exchange it with another employee or have it switched. His supervisor declined to make any change. Subsequently, the grievor worked on the Sunday in question and filed the grievance leading to the present proceeding. At the hearing, the grievor testified that he was a member of the Roman Catholic faith. He explained that he regarded Sunday as a Holy Day and he believed that no work should be done 'on that day. This, he said, was the belief that he grew up with in Bavaria, where the majority of the population was Roman Catholic and made a practice of observing Sunday in this manner. When he came to Canada in 1966, the grievor testified, he continued to hold the religious view that no work should be done on Sunday and continued to observe this practice in his own life. The grievor said that this was one of the reasons that he began to work for the Ministry. Prior to becoming an Area Enforcement Officer, he said, he worked for Ford Motor Company in Oakville, performing assembly line and maintenance work. When he was on maintenance, the grievor said, he was required to work on Sundays. It was for this reason that,he left Ford and applied .to the Ministry even though the move involved a considerable drop in Pay. Ccunsel for the Ministry called a very, interesting witness. Professor H. McSorley, a professor in the Faculty of ThzoIogy 3: i 3 St. Michael’s College, University of Toronto. The Board accepted Professor McSorley as an expert in Roman Catholic theology and beliefs. In his testimony, Professor McSorley gave a fascinating account of the origin of Sunday blue laws and the historic position of the. Roman Catholic Church regarding working on Sundays. For our purposes. the most important point that was made in this test~imony was that the Roman Catholic Church never did and does not ban Sunday work. So long as nenbers of the church go to Mass. it does not offend the canons of the church if they engage in unavoidable labour on a Sunday. It is for this reason, Professor McSorley stated, that Roman Catholic Churches. schedule Masses on Saturday evenings. This enables the faithful who must perform unavoidable work on Sundays to meet their religious obligations. There was no doubt, Professor McSorley said, that the work the Ministry required the grievor to perform on Sunday would be regarded by the Church as unavoidable labour. In short, there wes nothing in Roman Catholic theology or discipline to prevent the grievor from working on Sundays as required by the Ministry. Mr. E. Eartucci, the Brampton District Manager. Drivers and Vehicles, testified that cf all of the Enforcement Officers who were affected by the change in schedule. the grievor was the only one who objected on religious grounds to work:ng 5n Sundays. He agreed that it would not be a probi;m to reschedcic? the grievor to accommodate his religious objecrior.. 1 4 I. The First Preliminary obiection: The first preliminary objection which was entered by counsel for the Ministry had to do with the form of the grievance. When it was filed, the grievance stated, N I grieve that the requirement for me to work Sundays prohibits me from practicing my religious observances and is contrary to the Canadian Charter c of Rights." Prior tc the hearing, counsel for the Union notified counsel for the Ministry that he would be founding his religious discrimination argument upon the Ontario Human Rights Code and not the Charter of Rights, When counsel for the Ministry objected, Union counsel requested that the grievance be amended to reflect the change. Counsel for the Ministry submitted that the Board lacked jurisdiction to do so because it would constitute a forbidden change in the fundamental nature of the grievance. With respect to the law relating to fundamental change in the nature of a grievance, the Board was referred to Re Holmes Foundry Ltd. and United Automobile Workers, Local 456 (19731, 4 L.A.C. (2d) 236 (Hinnegan). In that case. the learned arbitrator acknowledged that II [A]n arbitrator should seek to entertain and determine the real, 'as opposed to the ostensible grievance between the parties, because to do otherwise would be a denial of natural justice... .II I-l. at p. 137. He also recogxized the need to balance against this consideratian the limitation upon 5 the jurisdiction and authority of an arbitration board to decide no more than what is raised in the grievance, properly interpreted in light of the collective agreement. With respect to this counter-balancing consideration, he referred to Re U.S.W. and TMX Watches of Canada Ltd. (1970) , 22 L.A.C. 92 (Schiff), where it was stated that a deliberate change in the position of the Union on a grievance might either have warranted (1) an adjournment to entitle the company to prepare argument on the new ground or (2) refusal to consider the new ,argument. Professor Schiff said, “The first remedy flows simply from the duty of each party to avoid unfairly surprising the other: the second flows from the duty of each party to reveal its legal and factual positions during pre-arbitration procedures so that the procedures may play their full role as the primary forum of grievance settlement (citing cases) .O Id. at p. 97. When we apply these criteria to the present case, we find that it is a close one. On the one hand, the factual basis for the grievance, i.e., the grievor’s assertion of a right to be exempted from work on Sundays in order to observe his religious practices, was well known and consistently advanced throughout the pre-arbitration and arbitration procedures. Then too, there was no question of unfair surprise. Counsel for the Ministry demonstrably was well prepared to meet an argument based upon application of the Ontario Human Rights Cod.?. on the other r.a.ne. the legal position being advanced a: arbitration. i.e., !i (' 6 application of the Ontario Human Rights Code, was not advanced during pre-arbitration procedures and so did not permit them to play their full role as the primary forum of grievance settlement. When all is weighed in the balance, we are led to the conclusion that this preliminary objection to our jurisdiction ! ought to be dismissed. Apart from our consideration of the foregoing, there are several additional factors which have assisted us in reaching this conclusion. Among these is the fact that the issue raised by the grievor is in the nature of a continuing grievance. so long as he is required to work on Sundays, the grievor will remain aggrieved. It would not serve the purpose of expeditiously adjusting disputes between the parties to require the grievor to file a new grievance and carry it once again through the often slow-moving steps of the grievance and arbitration procedure. Moreover, taking jurisdiction of the merits of this grievance does not expose the Ministry to any liability that it might have avoided if jurisdiction were declined and the grievor required to file a new grievance. The only relief requested is an order directing the Ministry to rescind the requirenent that the grievor work on Sundays. This is not a case where monetary or other redress is sought fqr alleged pas: In fractions 3f The collective agreement. 7 Finally, we are doubtful that knowledge of the legal basis which the Union advanced at arbitration would have had much impact during the pre-arbitration procedures. While this is subject to speculation, it seem unlikely that those persons dealing with the claim of the grievor throughout the pre- arbitration procedures, not being trained in the law, would have ( been influenced in their deliberations by the knowledge that the grievor was basing his claim for religious accommodation upon the Ontario Human Rights Code and not the Charter of Rights. We think that we can take arbitral notice that the evaluation of such sophisticated legal issues generally is left to legal advisors whose services are rendered after the pre-arbitration procedures are completed. Accordingly, this preliminary objection is dismissed and we now proceed to consider the second preliminary objection of the Ministry: II. The Second Preliminary Obiection: The second preliminary objection was that this Board lacked jurisdiction to enforce the Ontario Human Rights Code through arbitration. It was submitted that the crievor already had a remedy of filing a complaint before the Human Rights Comnissic~n and it would be error for the Roard to afford him an alternative 8 route to relief through the arbitration procedure. In this regard, it was stressed that the Human Rights Commission was the body with superior expertise and procedural devices for the adjustment and resolution of complaints involving matters of significant public policy such as discrimination. Generally, where a statute such as the Human Rights Code provides a comprehensive scheme for the investigation and adjudication of complaints. the aggrieved party is required to resort to that scheme and cannot enforce purely statutory rights through labour arbitration. So, for example, where a statute places a positive obligation on one party to a collective agreement and the collective agreement is' silent upon the matter, an arbitrator will decline jurisdiction in order to avoid the spectre of re-writing a collective agreement which served in the first place as the basis for his jurisdiction. See generally, Re Public Service Alliance of Canada and Alliance Employees Union (1981), 29 L.A.C. (2d) 21 (Fraser), at pp. 25-26, and the discussion therein of Weiler, The Arbitrator, the Collective Agreement and the Law (1972). 10 Osgoode Hall L. J. 141, 146-7. Also entering into the balance in inducing a board of arbitration to defer to the more specialized tribunal are "[tlhe related spectres of -he 'double jeopardy' of the employer and ‘res judicata' arising in respect of the facts and issues". Ps Sinqh and Ministry of- Correc:-iooal~ Services (1979). G.S.B. t .I, c 9 240/79 (Ebertsl, at p. 9. which conceivably could arise if relief were sought both at arbitration and before the specialized tribunal. In addition, there is the question whether it is intolerably wasteful of administrative time and the taxpayer's dollar to permit a grievor to pursue more than one avenue of relief. Put another way, why should a grievor have more than one bite at the apple? ( So insistent have arbitrators been that positive obligations under a comprehensive statutory scheme not be enforced at arbitration that they have refused to permit the parties to "cloak" a naked claim under a statute as a violation of a general provision of a collective agreement, such as a management rights clause, or some broad, general practice. For example, in & Aubin and Ministry of Correctional Services (1987), G.S.B. #1044/85 (Gandz). the Board rejected an attempt to use the overtime provisions of articles 13.1 to 13.3 of' the collective agreement -- which merely set the overtime rate and specify when overtime shall be paid -- to "cloak" a naked submission that the Ministry discriminated against handicapped people in violation of Section 4 of the Ontario Human Rights Code when it followed a practice of removing an employee from the top of the overtime list when he was placed on long-term disability and putting his name back on the bottom of the list when he returned. After noting that the collective agreement was silent OR the question of allocation of overtime, the Board said, "It may be that, i0 indeed, this practice contravenes the Human Rights Code. But the job of this Board is not to rule on violations of the Human Rights Code. The Code has its own enforcement mechanisms and these should be used to resolve'complaints arising under it." Id. at p. 4. Similarly, in Re Windsor Western Hospital Centre Inc. and i Ontario Nurses Association (1979), 24 L.A.C. (2d) 35 (Ianni), the board rejected an attempt by the union to "cloak" as a violation of a prior practice regarding the calculation of vacation entitlement an alleged contravention of positive obligations under the Employment Standards Act. The board said "In these present grievances...there are no provisions of the collective agreement in conflict with the EmDlOYment Standard Act, 1974. If, as alleged by the association, the parties in their practices and procedures are violating the EmDlOYment Standard Act, 1974 but are not violating the collectives agreement, then this is a matter for the Director of Employment Standards and not one for a board of arbitration." 2. at p. 39. On the other hand, where the claim is that a provision of the Collective Agreement violates a public policy or is illegal because it contravenes a statute, arbitrators have not hesitated to consider the statute and render r;heir Interpretation of it. No one has ever doubted that in such a case ” a board of arbitration or arbitrator is obliga:ed to acknowledge that impact 11 and refuse to enforce the offending provisions." Re Denniso'n Mines Limited and United Steelworkers (1982), 5 L.A.C. i3d) 19, 28 (Adams). Further, "A statute might be utilized as an aid in the interpretation of a collective agreement assisting in the meaning to be given to the terms of the contract.” u. Still another situation in which a statute will be construed / arises when it is necessary to determine whether a breach of a specific provision of the collective agreement, in fact, occurred. For example, in Re iiayford and Ministry of Correctional Services (1988), C.S.B. #2000/86 (Roberts), the Board could not decide whether a car pooling arrangement required by the Ministry violated the applicable provisions of the collective agreement without first interpreting the coverage provisions of the grievor's insurance policy, which were established by statute. See also Re Humber College and Ontario Public Service Employees Union (1987), unpublished award (Swan), where it was necessary to interpret the Human Rights Code in .determining whether the grievor, an adherent of the "Wicca" religion was denied religious leave in violation of the leave of absence provjsions of the collective agreement. Finally, one or inore provisions of a statute may be incorporated by reference into a collective agreement. It has been held that "[wlhere such is the case. it is within the jurisdiction of the arbitrator to interpret the statute? r?_e_ 12 : Toronto Electric Commissioners and CUPE, Local 1 'X1973), 2 L.A.C. L2d) 24 (Rayner), as reviewed in Re Nova Scotia Civil Services Commission and Nova Scotia Government EmDloyees ASSOC. (1980), 24 L.A.C. /2d) 319, 332 (Christie), and cited with approval in & Public Service Alliance of Canada and Alliance EmDloYees Union, supra. f In the present case, counsel for the 'Jnion resisted the preliminary objection to jurisdiction primarily on the ground that Section 4 of the Human Rights Code was incorporated by reference into the collective agreement between the parties. This submission was based upon Section 25 of the Human Rights Code, which reads as follows: 25.-(I) I? &311 he deemed to be a condition nf every contract entcrea into by.or oh bchat( $ the Crown or any agency thereof and oftvery suoconrract entered mto in the performance thereof that no right under section 4 will be infringedinthe course ofperformmgthe confrack (2) It shall be deemed to be a condition of eve? grant. contribution. loan or guarantee made by or on behalf of the Crown or any agency thereof that no right under section 4 will be infringed in the course of carrying out the purposes for which the grant. contribution. loan or guarantee was made. (3) Where an infringement of a right under section 4 is found by a board of inquiry upon a complaint and constitutes a breach of a condition under this section, the breach of con- dition is sufficient grounds for cancellation of the contract. grant. contribution. loan or guarantee and refusal to enter into an) further contract with or make any funher grant. con- rrihution. loan or guarantee to the sarx person, 1981. c. 9. s. 25. 13 As can be seen, section 25 incorporates by reference into contracts entered into on behalf of the Crown, etc., section 4 of the Human Rights Code. This is the general provision of the Code regarding discrimination in employment.. It reads as follows: Essentially, counsel submitted that by virtue of section 25 of the Human Rights Code, above, section 4 was incorporated by reference into the Collective Agreement between the parties. AS I a r~esult, the argument went, this Board had jurisdiction to apply section 4 of the Code to the claim presented in the grievance. We think, however, that it would be error to construe section 25 of the Human Rights Code as incorporating by reference the provisions of section 4. Reading section 25 as a whole, it would seem that wtat the legislature contemplated was to incorporate section 4 bY reference into all, contracts wit h outside contractors such as suppliers. construction companies, a ( 14 etc., so as to provide the Crown with the remedy of cancellifig such contracts ifs a Board of Inquiry established under the Human Rights Code were to find that the contractor infringed a right under section 4. This is what section 25 (3) seems to contemplate. It does not strike us that the legislature would have contemplated applying such a statutory scheme to its own collective agreements with its own employees. It would mean that ( the Crown, by virtue of its own violation of the Human Rights Code, would be empowered to cancel its own Collective Agreement. This would seem to us to be a very unlikely result. Moreover, even if section 25 were found to apply to collective agreements entered into with Crown employees it would seem to be debatable whether claims alleging that the discrimination provisions of section 4 were violated could be determined at,arbitration. Section 25 must be read as a whole. Its statutory scheme seems to contemplate the existence of only one avenue for determining the presence of a violation. That avenue is the one established by the Human .Rights Code, i.e., placing a complaint before a Board of Inquiry. In other words, it would seem that at most section 25 would contemplate a special form of incorporation by reference and not one giving recourse to the forum ordinarily authorized to adjust disputes between the parties. 15 Finally, we note that section 25 has been around since at least ,198l yet we were not provided with any decision of the Grievance Settlement Board acknowledging that it had the effect Of incorporating in the Collective Agreement section 4 of the Human Rights Code. Indeed, in Re Sinoh and Ministry of Correctional Services and Re Aubin and Ministry of Correction Services, supra, neither party made any reference to section 25 i of the Human Rights Code. The same held true in Aubin, where the Union took pains to argue that an alleged violation of the overtime provisions of the Collective Agreement constituted the foundation for application and construction of section 4. In light of all of these considerations, we must conclude that section 25 does not incorporate by reference into the Collective Agreement the employment discrimination grovisions of section 4 of the Human Rights Code. Counsel for the Union also submitted that, in any event, the general management rights clause of section 18 (1) of the Crown Employees Collective Bargaining Act provided a basis for enforcing the Ministry's positive obligations under section 4 of the Human Rights Code because management's right to schedule employees had to be exercised in accordance with the Human Rights Code. In this regard, the Board was referred to section 46 (2) of the Code, which essentially provides that in cases of conflict 16 with conduct authorized or required under other statutes, the Code must prevail. This submission must also be rejected. We have already indicated in our review of the law that arbitrators have refused to permit parties to "cloak" a naked claim under a statute as a violation of a general provision of a collective agreement such as a management rights clause. This serves the policy against enforcing at arbitration what are, in pith and substance, positive obligations under a comprehensive statutory scheme which provides its own mechanism for the investigation and adjudication of complaints. The Grievance Settlement Board took this position in Re Aubin and Ministry of Correctional Services, supra, and.we do not see that there is any conflict between Aubin and Re Singh and Ministry of Correctional Services. With respect to Sinah, we note that the observations made by Professor Eberts (as she then was) regarding the perceived existence of a judicial policy in favour of more --rather than fewer -- forums in which discrimination questions might be adjudicated were based upon the decision of the Ontario Court of Appeal in Bhadauria v. Seneca Colleue (1980). 27 O.R. (2d) 142. The Bhadauria decision, however. was reversed by the Supreme Court of Canada, which concluded that the plaintiff did not have an independent tort action for discrimination which she could pursue in the courts but was required to follow the procedure 1-l laid out in the Human Rights Code. See Board of Governors of Seneca College of Applied Arts and Technology V. Bhadauria ( 1981). 124 DtR ( 3d) 193 (S.C.C.). Accordingly it is our conclusion that the second preliminary objection must be allowed. We do not have i jurisdiction to arbitrate the grievor's claim that by requiring him to work on Sundays the Ministry discriminated against him by virtue of his "creed" under section 4 of the Ontario Human Rights Code. The grievor must pursue this claim under the comprehensive scheme of administrative and adjudicative procedures established under the Human Rights Code itself. As ;to the impact of section 46 (2) of the Code, we have no doubt that if the Human Rights Commission ultimately decides that section 4 was breached in the circumstances of this case the Ministry will be required to amend the schedule it established pursuant to its management rights to provide reasonable accommodation for the grievor's religious practices. The grievance is dismissed. DATED at London, Ontario, this 26th day of ,lanuary, 1989. 1 18. ?. . ,5 . Roberts, Vice-Chairperson . "I dissent" (Dissent attached) S. Hennessy - Member O'Toole _ Member I would ha:re found that the ercplo::-er discriminated against the grievor under Section 18111 of C.E.C.B.A. by failing to carry out its obliqations III accordance with Section 4 of the Human Riqhts Code P.S.O. Chapter 33, 1981. ,,f~~ . ..~._~_