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HomeMy WebLinkAbout2001-0224.Group Grievance.01-10-09 DecisionONTARIO EMPLOYÉS DE LA COURONNE CROWN EMPLOYEES DE L’ONTARIO GRIEVANCE COMMISSION DE SETTLEMENT RÈGLEMENT BOARD DES GRIEFS 180 DUNDAS STREET WEST, SUITE 600, TORONTO ON M5G 1Z8 TELEPHONE/TÉLÉPHONE: (416) 326-1388 180, RUE DUNDAS OUEST, BUREAU 600, TORONTO (ON) M5G IZ8 FACSIMILE/TÉLÉCOPIE: (416) 326-1396 GSB#0224/01 UNION# 01A503, 01A504, 01A505, 01A506, 01A507, 01A508 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN Ontario Public Service Employees Union (Group Grievance, Sammy et al) Grievor -and- The Crown in Right of Ontario (Ministry of Correctional Services) Employer BEFORE Daniel A. Harris Vice-Chair FOR THE GRIEVOR Ed Holmes Counsel Ryder Wright Blair & Doyle Barristers & Solicitors FOR THE EMPLOYER Ajamu Boardi Staff Relations Officer Ministry of Correctional Services HEARING: September 5 and 18, 2001. - 2 - INTERIM ORDER The Proceedings This decision deals with a request by the Union for interim relief. It is brought on behalf of the grievors, Dale Sammy, Donald Cuthbert, Alton McFarlane, Carlton Johnson, Tim Collins and Robert Mondesir. The grievors are unclassified Correctional Officers and were each suspended without pay in February 2001 pending investigation into an incident that was alleged to have occurred at the Toronto East Detention Centre on February 2, 2001. At this juncture the Union seeks interim relief in the nature of monetary compensation for the grievors. The test for interim relief is two-fold: 1.) the existence of an arguable case in the main application 2.) the balance of potential harm or inconvenience In these matters, the Employer has conceded that there is an arguable case. Accordingly, it falls to assess the balance of harm or inconvenience. The Background The facts surrounding the suspensions without pay are similar for all of the grievors. They were initially suspended with pay in accordance with section 22(1) of the Public Service Act. They were each advised in late February, 2001 that - 3 - their suspension was continued without pay. The text of the letter sent to each of them is as follows: This will serve notice that your suspension from duty, per Article 22 (1), of the Public Service Act is being extended for an additional twenty working days, pending an investigation. This period of suspension is without pay and will be from February 27, 2001 to March 24, 2001 inclusive. This suspension is subject to renewal. This is additionally to advise you that during the investigation by the Ministry and by the police into the incident alleged to have occurred on February 2, 2001 the Ministry will not be requiring your services under your classified contract. Please note the terms of Ms. Scrivano’s memo of February 19, 2001 still apply in reference to you not attending the institution, unless requested to do so by either the Superintendent or the undersigned. The thrust of the Union’s position on the merits of the grievances is that the Employer purported to invoke its right to suspend without pay under the Public Service Act, when in fact it indefinitely suspended the grievors. Having relied on the Act, the suspensions were invalid by virtue of the Employer’s failure to follow strictly the Act’s dictates. It is the second paragraph of the letter sent to the grievors that is the foundation of the claim. It was said to clearly indicate that the Employer was suspending the grievors for the indefinite period that it would take the Ministry and the police to investigate. The Ministry’s investigation was undertaken by Mr. Ewing and commenced February 3, 2001. All interviews were completed by May 23, 2001. The final report was delivered to the Employer July 24, 2001. Neither the report nor its conclusions are before the Board in any detail in these proceedings. - 4 - Finally, by way of background, it should be noted that initially seven C.O.’s were suspended, being the six grievors and Mark Dewer. Mr. Dewer is a classified Corrections Officer and the Union Steward. His suspension was with pay and he was returned to work in his former capacity effective June 26, 2001. The Submissions of the Parties The Union submitted that the background facts disclose substantial periods of inaction by the Employer in its investigation which has caused significant hardship to the grievors. Each of the grievors testified as to the personal hardship caused to them. That evidence is dealt with below. The Union also said that there was manifestly uneven treatment of the grievors as compared with Mr. Dewer. The Union said that Mr. Dewer’s return to work established that there was no detriment to the Employer to having the grievors in the workplace pending its final decision. The Union also made extensive submissions that the suspensions were a substantive breach of the provisions of the Public Service Act. The Union relied upon the following authorities: Miracle Food Mart of Canada & UFCW, Local 175 and 633 (1994), 41 L.A.C. (4th) 248 (Gray); Ministry of Labour and OPSEU (Nield) 1471/96 (Roberts); Ontario Human Rights Commission and OPSEU (Fox et al) 0507/01 et al, (Stewart); UFCW v. Loeb Highland, [1993] OLRB REP. March 1, 1997; Globe and Mail and Southern Ontario Newspaper Guild (Kelly) (1993), 39 L.A.C. (4th) 1985 (P. Picher et al); Better Beef Limited and UFCW, Local 617 P (1995), 46 L.A.C. (4th) 46 (Tacon); Management Board Secretariat - 5 - and OPSEU (Union Grievance) 1196/97, (Dissanayake); Dayco(Canada) Ltd. and C.A.W. – Canada (1993), 102 D.L.R. (4th) 609 (S.C.C.); Ministry of Health and OPSEU (Santos), 974/92, (Waisglass); University of Ottawa and I.U.O.E. (1994), 42 L.A.C. (4th) 300 (Bendal); Ministry of Correctional Services and OPSEU (Mailloux), 1064/90, (Kirkwood); Ministry of Correctional Services and OPSEU (G. Miller), 2613/87, (Samuels, November 7, 1988); Ministry of Correctional Services and OPSEU (G.Miller), 2613/87 (Samuels, February 14, 1989) The Employer submitted that the issue before the Board was the narrow one of the appropriateness of granting interim relief in the circumstances. That is, where does the balance of harm lie? The Employer said that notions of irreparable harm remain of importance in the exercise of discretion in dealing with applications for interim relief. It said that the Board ought to look at whether the harm alleged is one that could not be remedied, such as the imminent loss of an asset such as a house. Here the evidence was said to have fallen far short of establishing more than the financial hardship that anyone would experience as the result of being suspended without pay. As to delay, the Employer argued that the Union’s submissions on delay were arguments on the merits that ought not to be entertained at this stage of the proceedings. The Employer relied on the following authorities: Ministry of Correctional Services and OPSEU (Stewart) 1000/94, (Gorsky); Ministry of Health and OPSEU (Leeder), 2498/93 et al, (Finley); - 6 - Ministry of Natural Resources and OPSEU (C.M.Brown), 706/83 et al, (Roberts); Ministry of Labour and OPSEU (Nield), 1471/96 (Roberts); Brewers Retail Inc. and United Brewers’ Warehousing Workers’ Provincial Board (1998), 74 L.A.C. (4th) 113 (Carrier). Reasons for Decision As set out above the individual grievors testified as to the circumstances in which they find themselves as a result of having been suspended without pay. Suffice it to say that in each case the grievors described significant financial hardship. Some had been able to find alternative employment at substantially reduced wages, performing jobs that they described as demeaning. Some had obtained financial assistance from others. All were experiencing the type of hardship one might reasonably expect will result from being deprived of an income for a number of months. In Miracle Food Mart of Canada (supra), at page 255, Mr. Gray referred to the following comments of Mr. Swan in William Neilson Ltd. and U.F.C.W. (unreported, July 16, 1993, Swan): I begin with the observation that not every element of inconvenience must be strictly proved in an application of this nature. Some presumptions can be drawn from the circumstances of a case like the present. For example, it can be concluded that it is inconvenient for an employee to be out of work and not in receipt of remuneration for any substantial period. The extent of that inconvenience will, of course, vary the financial situation of the employee, the availability of alternate employment, and the anticipated delay before the main grievance can be resolved in a binding way. There may be cases in which such a presumption is sufficient to tip the balance of convenience in favour of an interim order of reinstatement but in a case where any substantial inconvenience to the Employer appears, the presumption alone may not be sufficient to overcome the Employer’s interest. - 7 - Similarly, while being required to have available work performed by the grievor and paid for by the employer would not of itself give rise to any presumption of inconvenience, there are other factors which might very well demonstrate inconvenience to an Employer, particularly where elements of additional financial cost, reasonable apprehension of harm to the workplace or other employees, or serious questions of workplace morale arise. While there is no general presumption that any of these results will flow from the reinstatement of a discharged employee, such a presumption may arise from special circumstances, even in the absence of specific proof of these factors. The evidence of the grievors essentially establishes that although they are experiencing significant financial hardship it is not such hardship as would extend beyond the presumption referred to by Mr. Swan. That is not to diminish the real financial hardship which is presumed to exist and, on the evidence, does exist as a result of their lengthy suspension without pay from their jobs as unclassified Correctional Officers. That, however, does not end the enquiry. As set out in Globe and Mail and Southern Ontario Newspaper Guild (supra), a number of factors come into play in balancing the inconvenience or the harm between the parties on an application for interim relief. In the circumstances of this case, there is no detailed evidence of the alleged wrongdoing nor is there any evidence of apprehension of workplace harm should the grievors return to work. I am mindful that the Union is not requesting interim reinstatement to the workplace. Rather, the Union is requesting that the grievors be compensated and that their unclassified contracts be deemed to have continued on an ongoing basis. However, in the context of the cases relied upon by both parties, and the effect that an order of compensation might have, it is - 8 - appropriate to consider the situation as if the employees were to be reinstated. If the Employer is ordered to compensate the grievors, it ought not to be so required without the concomitant right to require the grievors to attend at the workplace and discharge their duties. The evidence in this matter is such that there would be no inconvenience to the employer in restoring the grievors to their positions. The fact that Mr. Dewer has been reinstated to his previous duties as a Corrections Officer is indicative of that fact. Further, the Employer called Tony Valaitis to give evidence on its behalf. Mr. Valaitis’s evidence was that that inconvenience to the Employer would be financial. In my view, after a consideration of the evidence and the authorities relied upon by the parties, the balance of harm favours an order that the grievors be compensated from and after August 1, 2001. It follows that they ought to be considered to have retained their status as unclassified Correctional Officers. I reach these conclusions on the basis that no substantial inconvenience to the Employer appears to exist. From a labour-relations perspective, and for the purposes of this interim order, I take it that the Employer had a legitimate interest in thoroughly investigating the allegations arising from the incident of February 2, 2001. It promptly initiated the investigation by appointing Mr. Ewing to complete it. There is no evidence before - 9 - the Board that he did or did not do so in a timely fashion. It is useful to set out the relevant section of the Public Service Act: 22.(1) A deputy minister may, pending an investigation, suspend from employment any public servant in his or her ministry for such period as the regulations prescribe, and during any such period of suspension may withold the salary of the public servant. From and after the tendering of his report to the Employer on July 24, 2001, there was a requirement upon the Employer to act with dispatch in dealing with the allegations contained in the report. Once the Employer was fixed with the results of the investigation, it had an obligation promptly to make final decisions with respect to the status of the greivors. That is so whether the suspensions are taken to have been pursuant to the Public Service Act or a management right. The authority to suspend under the Act is during the period of the investigation, which came to a close after the Employer had a reasonable period of time to inform itself of the results of Mr. Ewing’s efforts. His report was available July 24, 2001. Managements’ rights are a labour-relations concept that is tempered by the law. The principle that delay is harmful to labour-relations is well established. In UFCW v. Loeb Highland (supra), the Ontario Labour Relations Board, at paragraph 32, set out the following well-known references: [32] Moreover, both the Board and the Court have long recognized that delay poses special problems in Labour Relations Matters. In Consolotated-Bathurst Packaging Ltd. v. I.W.C., Local 2-69 (1984) 2 O.A.C. 277, the Court noted: - 10 - … there is a fundamental principle of Labour Law that injustice and detriment to the Labour Relations of an Employer and Employee will result if the process is delayed. In my opinion, it is fair to say that the thrust of jurisprudence not only in the Board but in the Courts may be summarized by saying: In the law which has grown up around Labour Relations in this province and indeed elsewhere where the common law is pursued, the overriding principle invariably applied is that Labour Relations delayed are Labour Relations defeated and denied: the Journal Publishing Company of Ottawa Ltd. v. the Ottawa Newspaper Guild, Ont. CA. Released May 17/77 (unreported) [since reported[1977] A.C.W.S. 817 (Ont. C.A)] Similarly, in Re United Headwear and Biltmore/Stetson (Canada) Inc.(1983) 41, O.R. (2d) 287, the Court commented that the delay in Labour Relations matters often works unfairness and hardship. To some extent then, the Board must ensure the delay does not in itself decide a case. The Supreme Court of Canada has also commented on the harm caused by delay in Labour Relations matters. In Dayco (Canada) Ltd. v. C.A.W.–Canada (supra), Cory J. made the following comments with respect to the harm caused by unnecessary delay: Unresolved disputes fester and spread the infection of discontent. They cry out for resolution. Disputes in the field of Labour Relations are particularly sensitive. Work is an essential ingredient in the lives of most Canadians. Labour disputes deal with a wide variety of work related problems. They pertain to wages and benefits, to working conditions, hours of work, overtime, job classification and seniority. Many of the issues are emotional and volatile. If these disputes are not resolved quickly and finally, they can lead to frustration, hostility and violence. Both the members of the workforce and management have every right to expect that their differences will be, as they should, settled expeditiously. Further, the provision of goods and services in our complex society can be seriously disrupted by long-running Labour disputes and strikes. Thus, society as a whole, as well as the parties, has an interest in their prompt resolution. I accept the Employer’s submission that to look at the period prior to the tendering of the report on July 24, 2001, would be to engage in a consideration of the merits - 11 - of these suspensions in the first instance. As set out in Nield (supra), I am limited to making procedural orders, broadly defined, as discussed in Fox (supra), at pages 4 to 6. The central issue of this case is the validity of the suspensions at first instance pursuant to the Public Service Act. This decision is made on the basis of the detrimental labour-relations consequences of the Employer’s delay in dealing with the results of its investigation. The grievors ought not to bear the cost of that delay pending the hearing on the merits. In balancing the harm or inconvenience as between the grievors and the Employer, from and after the date of the delivery of the report, the presumption spoken of by Mr. Swan, as confirmed by the evidence of the grievors, prevails over the absence of any evidence of inconvenience to the Employer, other than cost. Accordingly, it is hereby ordered that the grievors be compensated from and after August 1, 2001. For the purposes of clarity, it is also declared that the grievors have remained unclassified Correctional Officers throughout. Dated at Toronto, this 9th day of October 2001. ________________________ Daniel A. Harris, Vice-Chair.