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HomeMy WebLinkAbout1993-2345.Wharton.94-12-04 Decision ONTARIO EMPLOYES DE LA COURONNE CROWNEMPLOYEES DECONTARIO GRIEVANCE COMMISSION DE SETTLEMENT REGLEMENT BOARD DES GRIEFS 180 DUNDAS STREET WEST, SUITE 2100, TORONTO, ONTARIO, MSG 1Z8 TELEPHONE/TELEPHONE: (416) 326-1388 180, RUE DUNDAS OUEST, BUREAU 2100, TORONTO (ONTARIO), MSG 1Z8 FACSIMILE/TELECOPIE: (416) 326-1396 2345/93, 2509/93 ® IN THE MATTER OF AN ARBITRATION Under - THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN . OPSEU (Wharton). Grievor and - The_ Crown in Right of Ontario (Metropolitan Housing Authority) Employer BEFORE: L. Mikus Vice-Chairperson P. Klym Member J. Miles Member FOR THE I. Anderson UNION Counsel Scott & Aylen Barristers & Solicitors FOR THE P. Pasieka EMPLOYER Counsel Filion Wakely & Thorup Barristers & Solicitors HEARING November 1, 1994 The grievor, Mr. Bromme Wharton, was promoted to the position of Acting Property Manager with the Metropolitan Toronto Housing Authority(hereinafter referred to as"HA') on November 9, 1992. That position is outside the bargaining unit. On October 12, 1993, he was advised that he was being returned to his former position as Assistant Property Manager because lacked the necessary skills to effectively carry out the duties of the position of Property Manager. Subsequent to that letter he received a performance appraisal dated November 1993 which he grieved the following May 20, 1994. In his grievance he alleges that the performance appraisal was inaccurate and the process used in its determination was fundamentally flawed. He asks that the performance appraisal be removed from his file. Following his demotion he received a letter dated November 16, 1993, and signed by Mr. Ian Fichenbaum, Housing Manager, which stated: This letter is regarding your comments and behaviour on October 7,1993,during the phone conversation you and I had at about 4:00 p.m. In your acting position as Property Manager, you report directly to me as the Housing Manager. When asked or directed to perform a task by the Housing Manager, the expectation of the Housing Authority is that you will comply with the request or direction to the best of your ability. Your refusal to come to my office, initially at my request and then at my direction, is conduct that can only be defined as insubordinate. Further,during the same conversation, you made remarks about myself that were inappropriate and untrue. Your behaviour was not only unprofessional but insubordinate. You will refrain in future from ever making remarks of a personally insulting and harmful nature to myself or further disciplinary action will be taken. I trust you will govern yourself accordingly. By grievance dated November 18, 1993, Mr.Wharton asked that the untrue allegations in this letter be retracted. Included in that grievance is the allegation that he has been 1 2 subjected to unjust harassment and offers the letter of November 16, 1993, as proof of his claim. By agreement of the parties, these two grievances have been consolidated. At the commencement of the hearing, Ms. Pasieka, counsel for the Housing Authority, raised, as a preliminary matter, the jurisdiction of this Board to hear these grievances. Its jurisdiction arises from the collective agreement or the Crown Employees Collective Bargaining Act R.S.O. 1990, as amended, Ch. C.SO (hereinafter referred to as "CECBN) It was the position of the HA that the events giving rise to the grievances occurred while the grievor was acting in a position outside of the bargaining unit. Specifically, the performance appraisal concerned the grievor's conduct while he was in an excluded position and the claim of unjust harassment arose from a letter of discipline regarding insubordination that occurred while he was in that excluded position. Finally, and more significantly, the grievor is asking, in short, that he be reinstated to the excluded position, which is clearly outside the jurisdiction of this Board. Ms. Pasieka referred the Board to the relevant provisions of the collective agreement which read as follows: ARTICLE 1 -RECOGNITION 1.1 In accordance with the Crown Employees Collective Bargaining Act, the Ontario Public Service Employees Union is recognized as the exclusive collective bargaining agent for all office, clerical and professional Crown employees at the 3 Metropolitan Toronto Housing Authority save and except those employees covered by subsisting collective agreements and those persons who are not employees within the meaning of clause (f) of Subsection 1 of Section 1 of the Crown Employees Collective Bargaining Act 1882, as amended. ARTICLE 6-TSII FORART RSSICT AI MM 6.8 Where an employee is temporarily assigned to perform the duties and responsibilities of a position not covered by this Collective Agreement, they shall retain their rights and obligations under the Collective Agreement. HOUMNO AUTHORITY ARGUbUM Ms. Pasieka took the position that these two clauses create an anomaly within the collective agreement because, while the recognition clause excludes the position of Properly Manager from the bargaining unit, article 6.5 allows temporary assignments to that position and specifically allows employees so assigned to retain their rights as a bargaining unit member. However, submitted Ms. Pasieka, the parties use of the word "retain" in article 6.5 is significant. No new rights are created by that article. The grievor had no right to the position. The decision to appoint him to that position was not subject to a grievance. Neither was the decision to demote him from that position. Similarly, the performance appraisal of an employee in an excluded position is not subject to the grievance procedure. The fact that a bargaining unit employee is performing in that position on an acting basis does not confer any new rights that would allow that employee to grieve a performance appraisal. Ms. Pasieka referred to several decisions of the Grievance Settlement Board. She cautioned the Board that the jurisprudence is not coherent or particularly helpful in that 4 none of the cases referred consider the HA's interpretation of the word "retain" in section 6.5. In the case of D'Silva G.S.B. 0538/88 (Dissanayake), the grievor alleged that the employer had impeded his natural progression by refusing to place him in the temporary position of Shift Engineer. The Board, in that case, refused to extend the rights related to temporary assignments to assignments that did not comply with the provisions of the collective agreement concerning temporary assignments. In the case of Fbmiey G.S.B. 175/88 (McCamus), the Board found that it did not have the jurisdiction to hear a complaint that related to a challenge to the classification of a managerial position held on an acting basis by a bargaining unit employee. The Board however made it clear that it intended its decision to be narrowly interpreted and expressed concerns about creating a parallel appeal procedure for bargaining unit members to challenge the classification of a position they were filling on a temporary basis. In the Gabriel G.S.B. 2297/90 (Dissanayake) case, the issue was whether an employee temporarily relieving in the category of Audit Supervisor was entitled to the travel allowance he received as a Senior Tax Auditor. At issue was an interpretation of article 6.5 which is identical to the one at issue in the instant case. The Board found that "his rights",unless otherwise stated,should be read as all inclusive. The grievor was therefore 5 entitled to be paid travel expenses for all authorized travel. The Board rejected the' employer's argument that the grievor, by accepting a temporary position that did not pay travel expenses,waived his rights under the collective agreement to claim those expenses on the basis that the union must expressly agree to any such waiver and it had not in that case. In the Garlock G.S.B. 15/80 (McLaren) case, the grievor alleged that he had been improperly demoted from his temporary assignment as Acting Sergeant when he elected to go out on strike with his bargaining unit members. The Board determined that a bargaining unit member must occupy a temporary position on the same basis as a permanent employee in the same position. Since a non-bargaining unit member could not grieve a disciplinary demotion in an excluded position, neither could a bargaining unit member temporarily assigned to an excluded position. The Board went on to consider the CECBA but came to no conclusions in that regard. That decision was, however, specifically rejected by the panel in the O.P.S.E.U. (Union Grievance) and Ministry of Community and Social Services) GSB 1588/84 (Delisle). The issue in that case was whether the grievor, who was on a temporary assignment in an excluded position, should receive statutory holiday pay according to the provisions of the collective agreement or according to the policies regarding managerial employees. The Ministry argued that the payment attached to the position and that an employee filling a certain position deserves to be treated as all others filling that position and no better. In 6 considering that argument the panel made the following comments at page 3: We don't understand why a temporarily assigned employees is limited in his ability to grieve only matters 'such the items referred to in Article 6 of the collective agreement'. Counsel for the Ministry before us argued that it was only equitable to treat a temporarily assigned employee 'on the same basis of those who fill the position on a regular basis'. Counsel argued that such an employee, gaining the higher rate of pay secured in the management position gives up certain rights in exchange; while indeed an individual employee may in a particular case in fact be prepared to do this there is nothing in the Agreement to indicate that the Union has agreed to such a trade. while it may on the surface appear inequitable vis-a-vis the regular management employee it must be remembered that the temporary in turn does not have his security of position. The decision in Garlock worries that to hold otherwise 'those occupying the position not by way of temporary assignment, who might have an identical complaint,would not have access to this Board'. we think that the short answer to this concern is that they'll never have 'Identical complaints' as the bargaining unit employee's complaint will arise out of the agreement while the other is excluded therefrom. The regular management employee may go elsewhere with his complaint; the employee who continues to pay his union dues and remains a member of the bargaining unit is entitled to come to this Board. with great respect and reluctance we feel unable to agree with the limitations set out in the Garlock decision. UNION ARGUAHM kdr. Anderson, counsel for the Union, took the position that these grievances involve a claim of systemic discrimination that embraces not just the period of time the grievor was in his acting position, but, as well, the time before and after that temporary assignment. The grievor has a right to have the grievances heard on that ground alone, submitted Nir. Anderson. With respect to the argument that the grievor only retains those rights he possessed as a bargaining unit member, the Union took the position that acting assignments to managerial positions are considered by the parties to be a training opportunity. For that reason the parties have recognised that employees who agree to participate in those training opportunities are protected during that period. They continue to be treated as members of the bargaining unit. They continue to pay dues. And, according to article 6.5, 7 they continue to enjoy the protection of the collective agreement for the duration of the temporary assignment. In this case, the grievor continued to be protected from discrimination and retained the right to grieve if he felt he had been discriminated against. Finally, argued the Union, the parties have specifically agreed to eztend the rights under the collective agreement to certain employees occupying a non-bargaining unit position. That, argued Mr. Anderson, is not anomalous. The parties are free to do so and, in this case, have done so in article 6.5. The Union relied on the following cases in support of its argument: Dayco (Canada) Ltd. v. CAW. (1990), 73 D.L.R. (4th) 718, 90 C.L.L.C. 14,040, 74 O.R. (2d) 648 (C.C.) (per Blair J.A.) [affirmed 33 A.C.W.S. (3d) 577 (S.C.C.)]; Be Steinberg Inc. (Trillium Meats) and Unified Food and Commercial Workers,Local 633 (1991), 24 L.A.C. (4th) 98 (J.D. O'Shea); O.P.SMU. (Lmnley) and Ministry of Correctional Services GSB 1257/91 (Gorsky); O.P.S.E.U. and Ministry of Correctional Services GSB 2669/91 (J. Roberts); Re Ontario Hydro and Ontario Hydro Employees' Union, Local 1000 at al (1983), 147 D.L.R. (3d) 210 (Ontario Court of Appeal) and He Municipality of Metropolitan Toronto and Canadian Union of Public Employees, Local 79 (1993), 35 L.A.C. (4th) 356 (B. Fisher). The Dayco case (supra) stands for the proposition that an arbitrator can take jurisdiction over a grievance filed by retirees who were clearly no longer employees under the collective agreement. 8 The Steinberg case (supra)involved a claim by the grievor that he was a member of the bargaining unit at the time of his termination and therefore entitled to grieve his unjust dismissal. The grievor had been promoted to a managerial position six months prior to his termination. The company became aware of discrepancies in time cards that the grievor had completed. At the meeting to discuss those discrepancies, the grievor, believing he was in trouble over those discrepancies, "handed back his hat" and advised the company that he was going back into the bargaining unit. The Board allowed the grievance on two grounds. It found that the grievor had given up his foreman's job before he was terminated and, irrespective of the company's intentions, the termination did not take effect until after he had done so. The Board also found that, even if the grievor was still a foreman at the time of the termination, the collective agreement allowed him to return to the bargaining unit within twenty-four months of his promotion and therefore "his inchoate seniority rights which he enjoyed pursuant to the provisions of art. 8.08 of the collective agreement were still available to him". In the Lumley decision (supra), the grievor alleged that he had been denied an interview for a training and development opportunity in an excluded position because of his race which was contrary to article A of the collective agreement entitled "NO DISCPJNMATION/EMPLOYMENT EQUITY. The employer took the position,in part, that the grievance was not subject to the grievance procedure because of section 18(1)(b) of the OEM& which reads as follows: 18.0) Every collective agreement shall be deemed to provide that it is the exclusive function of the employer to manage,which function,without limiting the generality of the foregoing, includes the right to determine, 9 (b) merit system, training and development, appraisal and superannuation, the governing principles of which are subject to review by the employer with the bargaining agent, and such matters will not be the subject of collective bargaining nor come within the jurisdiction of a board. In considering the submissions of the parties and the arbitral jurisprudence, the Board concluded that the rights of an employer to determine who will be offered temporary opportunities to non-bargaining positions for purposes of training and development was limited by its obligation to act in good faith. If it is alleged that the decision not to grant the grievor an interview was based on a prohibited ground of discrimination under the collective agreement or the Ontario Human Rights Code RS.O 1990, Ch. H.19, a Board is obligated to exarrdne the evidence to determine whether the allegation has merit. In the Adamson case (supra), the grievor alleged that the application of the employer's attendance review policy to her was discriminatory because her absences were gender specific. The grievance was grounded in Article A of the collective agreement which prohibited discrimination on several enumerated grounds. The employer objected to the jurisdiction of the Board to hear the grievance on the grounds that article A only defined what types of discrimination were forbidden in the administration of the provisions of the collective agreement but did not stand alone as an article that could give rise to a valid grievance. The Board refused to read that provision of the collective agreement in the restricted manner advanced by the employer. It found that Article A was broadly worded and no rule of construction would allow it to conclude it said less than what it purported to say. 10 The Ontario Hydro case (supra) stands for the proposition that once a collective agreement grants employees a substantive right to grieve, no procedural bar found later in the collective agreement can nullify that right. The Metropolitan Toronto case (supra) stands for the proposition that recent amendments to the Ontario Labour Relations Act R.S.O. 1990 Ch. L.2, as amended, allow a Board of Arbitration to interpret and apply the Ontario Human Rights Code. That includes the jurisdiction to order the employer to place a grievor.in a excluded position in appropriate circumstances or to award compensation for the failure to be awarded that position. DECISION Having considered the submissions of the parties and the jurisprudence provided to us, we are of the view that the preliminary objection of the HA to our jurisdiction must be dismissed. Notwithstanding the provisions of CE= the parties have agreed that a bargaining unit member who is temporarily promoted to a managerial position will retain all rights and obligations of a bargaining unit member. Previous Boards, specifically in the Gabriel and Delisle decisions, have interpreted the reference to "his rights" in article 6.5 to'mean "all his rights" and we adopt that interpretation. In the absence of any qualification or restriction regarding the rights referred to in that article,we are not prepared to designate certain rights to be protected and others not. That is for the parties to do, if they so 11 choose. In considering the apparent contradiction in the decisions of the Boards in the Garlock and Union Grievance 1588/84, we agree with the position adopted in the latter case. There are benefits inherent in a permanent position that a temporary replacement does not enjoy,including security of position. The temporary replacements,because they retain their rights under the collective agreement, are not necessarily in a better position than the permanent staff member. Even if they were, that is something the parties have agreed to and a Board of Arbitration is obliged to give effect to their agreement. The grievor has alleged that he has been discriminated against on the basis of his race. The collective agreement allows bargaining unit members protection against discriminatory treatment on several enumerated grounds, including race. The grievor's right to that protection followed him into that temporary managerial position. Having reached that conclusion on the basis of the collective agreement,we do not need to consider the alternative arguments of the Union. It is, therefore, the decision of this Board that we do have jurisdiction to hear the grievances and the preliminary objection is dismissed. We will reconvene the hearing on the dates agreed. 12 Signed thisl4th- day of December, x994, in Toronto. oretta Mikes, Vice-Chairperson Peter Klym, Union Member John Miles, Employer Member