HomeMy WebLinkAbout2001-0453.Berry.04-03-04 DecisionCrown Employees
Grievance Settlement
Board
Suite 600
180 Dundas St. West
Toronto, Ontario M5G 1Z8
Tel. (416) 326-1388
Fax (416) 326-1396
Commission de
règlement des griefs
des employés de la
Couronne
Bureau 600
180, rue Dundas Ouest
Toronto (Ontario) M5G 1Z8
Tél. : (416) 326-1388
Téléc. : (416) 326-1396
GSB# 2001-0453, 2001-0974, 2001-0993
UNION# OLB492/00, OLB421/01, OLB467/01
IN THE MATTER OF AN ARBITRATION
Under
THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT
Before
THE GRIEVANCE SETTLEMENT BOARD
BETWEEN
Ontario Liquor Boards Employees’ Union
(Berry) Grievor
- and -
The Crown in Right of Ontario
(Liquor Control Board of Ontario) Employer
BEFORE Janice Johnston Vice-Chair
FOR THE UNION Graham Williamson
Koskie Minsky LLP
Barristers and Solicitors
FOR THE EMPLOYER Gordon Fitzgerald
Counsel
Liquor Control Board of Ontario
HEARING March 2, 2004.
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Decision
I have three grievances before me in this case. The first is dated November 22, 2000, the
second is dated August 13, 2001, and the third is dated September 17, 2001. The grievances
request, among other things, the removal of certain letters from the grievor’s file. Two of the
letters are written reprimands and the other letter is a notice of intended discipline. The grievor
works at the Durham Warehouse as a casual warehouse worker.
The first grievance deals with events that commenced on October 18, 2000, when the
grievor initiated a work refusal pursuant to the Occupational Health and Safety Act (the
“OHSA”). The parties agree that under the OHSA section 43 (3) (b) a worker may refuse work in
certain circumstances. That section provides:
43 (3) A worker may refuse to work or do particular work where he or she has
reason to believe:
...
(b) the physical condition of the workplace or the part thereof in which he
or she works or is to work is likely to endanger himself or herself;
Section 43 then goes on to provide a series of steps to be taken once the employee has
raised his/her concerns.
The employer ultimately determined that it was appropriate to issue a written warning to
the grievor and did so. The letter was dated November 7, 2000. This resulted in the filing of the
first grievance, which also alleged a violation of section 50 of the OHSA. Section 50(1) of the
OHSA provides:
50 (1) No employer or person acting on behalf of an employer shall,
(a) dismiss or threaten to dismiss a worker;
(b) discipline or suspend or threaten to discipline or suspend a worker;
(c) impose any penalty upon a worker; or
(d) intimidate or coerce a worker,
because the worker has acted in compliance with this Act or the regulations or an
order made thereunder, has sought the enforcement of this Act or the regulations
or has given evidence in a proceeding in respect of the enforcement of this Act or
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the regulations or in an inquest under the Coroners Act R.S.O. 1980, c. 321, s.
24(1); 1990, c. 7, s. 26.
The grievor alleges that the issuance of the warning in this case was a reprisal contrary to
section 50 of the OHSA. The employer disagrees with this assertion. However, in an attempt to
resolve this matter, the employer by letter dated February 27, 2004, indicated that it would, on a
without prejudice basis, withdraw the letter dated November 7, 2000, from the grievor’s file. As
a result, the employer takes the position that the issue before me is now moot. The union
suggests that it is not the end of the matter and continues to seek other relief, which includes
various declarations, an apology from the employer and damages for pain and suffering in the
amount of $10,000.
On June 21, 2001, the grievor left the workplace due to injury. She has been on
compensation since that time. Other than brief sporadic attempts to return to work, the grievor
has not been working.
The second and third grievances relate to issues that arose in the summer of 2001. At that
time, although she was not working, the grievor became aware of some practices in the
workplace that in her view raised health and safety concerns. In an attempt to obtain information,
she contacted the Ontario Federation of Labour (the “OFL”). It appears that the OFL then
contacted the Ministry of Labour (the “Ministry”).
Representatives of the Ministry attended at the workplace on July 24, 2001. The
attendance of the Ministry was not at the request of the grievor. It was not as a result of
any work refusal on the part of the grievor as she was not at work at this time.
Pursuant to the letter dated February 27, 2004, already referred to, the employer has also
removed the two letters from the grievor’s file that gave rise to the second and third grievances.
In addition to contending that renders the matters before me moot, the employer also argues that
as the grievor was not in this instance seeking to enforce or rely on the OHSA as she did not
request the intervention of the Ministry, that the OHSA has no application in these
circumstances. As the union has failed to establish any basis upon which I could order
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declaratory or any other relief pursuant to the OHSA, it has failed to make out a prima facie case.
The union disagrees with this position and continues to seek the declaratory relief and other
orders as set out above.
I have carefully considered the issues before me and have determined that in the
circumstances the grievances should be dismissed. The events giving rise to the grievances
occurred in the fall of 2000 and the summer of 2001. A significant amount of time has passed
since the incidents occurred. Given that the employer has removed the letters that gave rise to the
grievances, it serves no labour relations purpose to enquire further into these matters at this point
in time. It does not make sense to enter into what would be a very long and acrimonious hearing
on issues that are to a large extent moot.
Both parties acknowledge the important role played by the OHSA in the workplace. They
have made a commitment to continue to work together to address issues pertaining to health and
safety.
The grievances are therefore dismissed.
Dated at Toronto this 4th day of March, 2004.
Janice Johnston
Vice chair