HomeMy WebLinkAbout1989-0755.Fabro.90-07-16 ONTARIO EMPLOYES DE LA COURONNE
CF~OWN EMPLOYEE,,~ DE L ONTARIO
GRIEVANCE COMMISSION DE
SETTLEMENT REGLEMENT
BOARD DES GRIEFS
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0755/89, 0757/89
IN THE HATTER OF AN ARBITRATION
Under
THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT
Before
~. THE GRIEVANCE SETTLEMENT BOARD
BETWEEN. ·
OPSEU (G. Fabro)
Grievor
- and -
The Crown in Right of Ontario
(Ministry of Industry, Trade & Technology)
Employer
BEFORE: M.R. Gorsky Vice-Chairperson G. Majesky Member
A. Stapleton Member
FOR THE A. Ryder
Ryder, Whitaker, Wright & Chapman
Barristers & Solicitors
FOR THE P.M. Rusak
EMPLOYER: Counsel
Mathews, Dinsdale &
Clark
Barr~.~ & e~ ~¢~
HEARING: May I1, 1990
DECISION
The Grievor, G. Fabro, was employed by the Ontario
Development Corporation as.a Senior Consultant in 1968, and still
occupies that position with the Employer. Part of his duties
involve representing the Employer in cases where loans made by
the Ontario Development Corporation are not.being repaid as
required.
Between August of 1984 and September of 1989 the Grievor
filed approximately 29 grievances.against the Employer, including
allegations of harassment, unjust discipline and unfair
appraisals. We were advised that nine of these grievances are
presently before a panel of the Board chaired by Vice-Chairperson
R. J. Roberts. We are not seized with any of the grievances.
The reason why the parties have appeared before us arises
out of an application being made on behalf of the Grievor for
certain interlocutory relief.
In order to better understand the nature of the relief being
claimed by the Grievor, certain background facts intended to be
proved by counsel for the Grievor should be outlined. The
Grievor was off work because of illness caused by nervous strain
from December of 1988 to May of 1989 and from September of 1989
to March 5, 1990. He has been, at all material times, under the
care of his family physician-and, as well, of a psychiatrist.
Counsel for the Grievor stated that there is a medical report
2
from the Grievor's psychiatrist, dated November 6, 1989, which
states that the Grievor suffered from a chronic depression and
was unfit for work. A subsequent report, dated February 23,
1990, stated that the Grievor was much improved and was eager to.
return to work. Following an application by the Grievor to
return to work, he was permitted to do so on March 5, 1990.
Although none of the grievances were shown to us, counsel
for the Grievor advised that he was prepared to adduce evidence
of continuing acts of harassment by representatives of the
Employer against the Grievor. He further advised us that the
most recent letter from the Grievor's psychiatrist stated'that
the Grievor must be relieved from "... unremitting pressure
before irreparable damage is inflicted on him." Mr. Ryder
advised us that for the Grievor to obtain meaningful relief from
the Roberts panel, which is to commence hearings with respect to
nine of the grievances on October 18, 1990, it was necessary to
ask this. panel of the Board to issue an interlocutory order
restraining the Employer from continuing with acts of harassment.
We were told by counsel for the Grievor that some of the cases
before the Roberts panel involve allegations of harassment
against the Grievor by' representatives of the Employer.
If evidence is to be heard in this proceeding, Mr. Ryder
indicated that he would be submitting, as proof of continuing
harassment, the existence of a plan by the Employer, which the
Union became aware of in the spring of 1989, whereby the Employer
wishing to discharge the Grievor, sought, and obtained, an
3
opinion from counsel on the steps to be followed in order to
achieve this result. Mr. Ryder stated that the decision of the
Employer to discharge the Grievor explains the current acts of
harassment which are alleged to have taken place. Mr. Ryder
further stated that, because of the continuing nature of the
grievances alleging harassment, which are to be heard before the
Roberts panel in October, it would be possible to deal with such
allegations at that time. He submitted that some form of
interlocutory relief was required in order to prevent the
continuing acts of harassment from having a deleterious effect on
the Grievor's health.
Among the facts that were intended to be established, if
evidence were heard on the matter, would be certain events that
took place after the Grievor's most recent return to work on
March 5, 1990. Upon his return to work, he ~was sent to Kingston,
Ontario to examine a situation involving a borrower company. He
was in Kingston on the 6th and 7th of March and left his hotel at
approximately 7:00 p.m. on the 7th of March in order to return to
'Toronto. He is said to have arrived at his home around 11:00
p.m. and to have dropped off his rented car in the morning and
arrived at work at approximately 10:30 a.m. He is said to have
been verbally reprimanded for late arrival and to have also
received a written reprimand arising out of the incident
described. The position to be put forward on behalf of the
Grievor is that no other person received a reprimand on facts
similar to those described. We were told that there was a
4
written memorandum, dated June 21, 1979, to the effect that
senior staff would not be required to work regular hours: "As
with other senior staff members we do not demand precise
accounting of ... time."
We were also told that it would be established that the
Grievor's performance was appraised on March 15, 1990, which
appraisal included the period during the summer of 1989 when the
Grievor was "obviously" a sick man, according to Mr. Ryder.
We were told that the alleged acts of harassment described,
if established, would be put forward as part of the scheme of the
Employer to discharge the Grievor and it was submitted that the
Employer engaged in a series of predetermined decisions in
accordance with advice received by it from counsel.
We were also advised that the Union had subpoened the
document which allegedly establishes the Employer's predetermined
decision to terminate the Grievor, along with a letter from the
Employer's counsel said to contain advice on achieving this end.
Mr. Ryder~stated that he was seeking an order of the Board
directing the Employer to cease harassing the Grievor and to
treat him in the same fashion as other Senior Consultants are
treated.
Ms. Rusak, for the Employer, raised a preliminary objection
to our hearing any evidence with respect to the application being
made on behalf of the Grievor for interlocutory relief. It was
her position that the Grievance Settlement Board did not have
jurisdiction, in the circumstances described, to grant
5
interlocutory relief by issuing a quia timet order of specific
performance that some positive action be taken, or an order in
the nature of an injunction that the conduct in question be
brought to an end. She did not take the position that ~ time%
orders are beyond the Board's jurisdiction in all circumstances
nor are orders for an injunction that certain conduct be brought
to an end. She did take the position, however, that the Board had
no jurisdiction to order such relief in the form of an order for
interlocutory relief.
We decided to first hear argument from counsel as to our
jurisdiction to order interlocutory relief, however it is
characterized: a ~ia timet order of specific performance, an
injunction that some positive act'ion be taken or that the conduct
in question be brought to an end. Only if we decide that we have
authority to issUe interlocutory relief in the form of a
compliance order, would we hear further evidence to decide "-
whether, in the circumstances, such relief ought to be granted.
In this decision, only the question' of jurisdiction is dealt with
and we emphasize that we have heard no evidence concerning the
allegations which were referred to and, until we hear evidence,
they remain as allegations only.
Mr. Ryder submitted that the remedial power in the Board to
issue the order sought is contained in Section 19 of the Crown
EmDloyees Collective Bargaining'~Act, R.S.O. 1980, c.108, which is
as follows:
"19(1) Every collective agreement shall be deemed to
provide that in the event the parties are unable to effect a
settlement of any differences between them arising from the
interpretation, application, administration or alleged
contravention of the agreement, including any question as to
whether a matter is arbitrable, such matter may be referred
for arbitration to the Grievance Settlement Board and the
Board after giving full opportunity to the parties to
present their evidence and to make this submissions, shall
decide the matter and its decision is final and binding upon
the parties and the employees covered by the agreement."
~Mr. Ryder referred to the case of Re The Oueen in riqht of
Ontario and Ontario Public Service Employees Union et al. (1986),
57 O.'R. (2d) 641 (Div. Ct.). Mr. Ryder referred to the statement
of Craig J., found at p.649 of the latter case:
"The Crown is one of the 'parties' referred to in s.
19(1). Neither the agreement nor the Act authorize an award
of interest in express terms, but the Board was authorized
to make a 'final and binding' decision as to 'any
differences' between 'the parties'. The Board did exercise
its discretion to substitute reinstatement with compensation
for lost wages;'after deductions for income received from
.other employment,~this loss extended back over several
years.' For reasons stated earlier, failure to award
interest in 1985 on wages lost in earlier years means, in
effect, that the grievors would receive only part of the
value of the loss for which compensation was ordered. In my
opinion that would amount to a failure of justice; and such
a result would not have been intended by the Legislature.
Interest was one of the 'differences' that arose between the
Crown and the grievors during the arbitration. It would be
almost impossible for the Legislature to enumerate all the
possible differences that might arise in an arbitration or
the possible decisions available to the Board. The
Legislature has-.said that the Board's decision is 'final and
binding';'in my opinion authority to award interest against
the Crown is found in s. 19(1) by necessary, implication.
Therefore the Board did not err in deciding this issue."
Mr. Ryder argued that the authority to grant the
interlocutory relief sought was to be found in s. 19(1) "by
necessary implication". He also referred to the unreported case
Of Ontario Public Service Employees Union and the Grievance
Settlement Board, and the Crown in the Riqht of Ontario (Ministry
of Correctional Services) (Div. Ct.), where Osler J., for the
court, referred to, "... the plenitude of the power conferred by
s. 19(1) ... " It isi~vident that the power of the Board under
s. 19(1) is concerned with the decision of the "matter" which
represents the issue(s) in the case(s) before the Roberts panel:
whether the Employer was harassing the Grievor. Any decision
which we might make at this time would not represent a decision
on "the matter". This is not a case where our authority could be
found by necessary implication in s. 19(1). The authority of a
board to grant the kinds of orders being sought has, with one
exception, excluded the granting of interlocutory relief.
In Polax Tailoring Ltd. (1972)., 24 L.A.C. 201 (Arthurs), a
quia timet of.specific performance was awarded, but only after
the arbitrator found that the company's defence on the merits
failed.
In Re Samuel Cooper and Co. Ltd. and Int'l Ladies' Garment
Workers Union 'et al., [1973] 20.R. 841 (H.C.J.), the court held
that it was within the jurisdiction of a board of arbitration to
issue what amounted to a mandatory injunction directing the
employer to comply with the agreement in the future. In
upholding the power of the board to make "affirmative
directions", the. Court noted that, what is now s.44 (1) of the
Labour Relations Act, R.S.0. 1980 c.228 refers to final and
binding settlement by arbitration and the court concluded that to
bring about such a settlement the arbitrator had the power
"to direct adherence to the collective agreement to prevent
continuing violations and to prevent the unpleasant and
expensive prospect of a series of fresh claims and
proceedings to correct the series of breaches".
While there is no question that a board of arbitration (including
this Board) is entitled, as a matter of law,. to grant relief in
the nature of specific performance or by way of injunction, such
authority is limited to cases which are other than interlocutory
in nature.
Mr. Ryder also submitted'that because of the Board's
inherent power to control the procedure to be followed, it had
authority to make the order sought. The granting of an
interlocutory order, in the nature of the one being sought, goes
well beyond the subject of the rules of procedure to be followed.
No case was submitted to us, and I have been unable to find
any ~ase, where an order has been issued by a board of
arbitration in the form of an interlocutory injunction, or an
interlocutory ~[uia timet order of specific performance that some
positive action be taken, such as an order that the employer not
violate, the collective agreement in some specific fashion.
The only case that I have found dealing with the granting of
interlocutory relief of the kind being sought relates to
agreements which contain a "status ~kq" clause. In Pacific Press
Ltd. (1982), 7 L.A.C. (3d) 314 (McColl), there was a preliminary
application for an order preventing lay-offs until the testing of
-their propriety at arbitration. The collective agreement
contained what is referred to as a "status quQ clause":
"Conditions prevailing prior to an action or circumstances
which results in a grievance shall be maintained unchanged
pending final settlement of the grievance as'provided herein
The Union brought a proceeding in the nature of a preliminary
motion for a declaration pursuant to the provisions of that
Article: "... that the employer may not instigate the notice of
lay-off in respect of the employees until the correctness of the
employer's decision has been adjudicated upon in these
proceedings." (Pacific Press case at p.314.) It is evident that
the jurisdiction to entertain the preliminary application in the
nature of an interlocutory injunction was dependant on the
existence of the "status quo" clause. In the case before us
there is no similar provision.
There is no authority at common law which would permit this
Board to grant the interlocutory relief sought. Such authority
must be found either in the collective agreement or in a statute.
It is not found in the collective agreement and therefore must
arise, if'it exists at all, under the provisions of the C.rown
Employees Collective Bargaining Act. The arbitration provisions·
found in Crown EmDloyees Collective Bargaining Act are similar to
those found in the Labour Relations Act, and the intention in
both cases was to provide for a method of hearing disputes
arising under the collective agreement in a relatively simple and
uncomplicated manner as expeditiously as possible. There is
nothing explicit in the Crown Employees Collective BarGaining Act
which provides for the kind of interlocutory 'relief sought, nor,
have we been able to find such a right by implication. This is
10
not surprising, as the procedure in labour arbitration was not
intended to be a mirror of the procedure in the courts.
In a case involving facts which necessitate an earlier
hearing, it is possible to have the hearing expedited by the
Chairman of the Board.
As noted, we have not heard any evidence and do not intend
any of our pronouncements to be taken as an indication of the
Board's view of the evidence. It is possible to see, however,
that situations may arise where a hearing delayed may do
irreparable harm to a grievor. We do not know if this is such a .
case, however, it is always possible to request that a hearing
take place earlier than might otherwise be the case.
For the reasons stated above, the application is dismissed
for lack of jurisdiction in the Board to entertain it.
DATED AT Toronto, Ontario
this t6th~a¥ of Jul. y 1990.
M. R. Gorsky, Vice-chairperson
"I DISSENT" (Dissent to follow)
G. M=jesk¥, Member
A. Stapleton, Member
BE~I~ OFaEU (G. FABI~O)
- ~d -
~e ~ in ~t of ~rio
(~n~st~ of Industry, ~e ~ T~ol~)
0755/s9, 0757/s9
UNION NO~INEED~SSENT
As the union nominee in this matter, I have several
concerns respecting the majority decision in this matter, and
the inability of the board of arbitration to help the grievor
obtain relief in the form of a cease and desist order.
The union made convincing submissions why it was
within the Grievance Settlement Board's jurisdiction to'
prevent the employer from continuing to harass the grievor.
The essence of which is the jurisprudence, which has
consistently supported that the GSB and Boards of Arbitration
have broad remedial powers, which although not specifically
enumerated, would permit a board to issue a cease and desist
order.
The employer, in a rather standard defense, argued
that its management rights would be trammelled. In other
words, if management was precluded from engaging in management
activities, especially those which have precipitated the
grievor's failing mental health, that would be a manifest
error.
Frankly, this nominee has great difficulty
appreciating the competing interests proposition ie., the
principle of enshrined management rights vs. the welfare of
the grievor. To get drawn into the global dichotomy is a
trap. We must 10ok to the specifics of the instant case.
Management is using and hiding behind this privilege in order
to continue the assault against the grievor.
The union, in attempting to prove that these
'initiatives (harassment) were not phantom manifestations of
the grievor's imagination, wished to introduce a letter
written by employer counsel (Ms. Paula Rusak). Amazingly, the
board was subjected to a shrill and dramatic display of
protocol and trappings of the legal world. The irony of
which, the grievor coming before the board' for justice, and
subsequently not obtaining h~ms. nitarian relief~ witnessed the
n~oral outrage of the employer's counsel, when it was revealed
that the union wished to enter into evidence a letter written
by Ms. Rusak which en~unerates the steps necessary to make a
dismissal against the grievor stick.
It was appalling to witness the employer counsel
threaten union counsel with going to the Law Society if the
letter to the employer advising on the procedure for proper
dismissal were entered as an exhibit. We heard much noise
about the rights of counsel and the privilege which was
asserted by-Ms. Paula Rusak would be breached if union counsel
were allowed to enter the letter as an exhibit. Needless to
say, I have little respect for the employer counsel argument,
who on one hand admonishes the union for wanting to introduce
as evidence, this letter, and by their own actions, set on a
course which is designed in a very insidious way, to build a
case of culminating incidence(s) against the grievor,
resulting in his dismissal. Ail this within the context that
the.grievor is mentally ill. Frankly, if the employer paid
the freight for Ns. Paula Rusak's advise, then it stands to
reason that they have undertook her recommendations to build a
case against the grievor. ~hat the employer has succeeded in
doing is to erode and permanently damage the grievor's welfare
(physical/mental) beyond a repairable state.
As human beings? we must get beyond statutes,
jurisprudence and rise above the invisible shackles of our
perceived limited authority, so that we can impose settlements
screaming oUt for justice. We must not get mired in legal
chicken and egg discussions whether we have authority or not.
The tragedy is if the grievor waits for the remedy enumerated
in this award, the patient may die before the next doctor's
appointment. Perhaps the legal profession should tear a
chapter from the medical profession. Maybe justice should not
be properly meted out on a first come, first scheduled for
hearing basis, but, on a as need be basis. As a figurative
illustration, Mr. Fabro!s situation is not unlike a trauma
patient arriving in the Emergency Room with a severed arm from
a boat accident, and where there is also a patient waiting for
elective surgery (non life threatening). Common sense
dictates that you treat the most threatening matter-first, and
juggle the elective patient second. The intuitive priority is
the treat the most wounded first.
This same philosophy can and should apply to people
who seek help, and relief, from the arbitral process~ If we
could not dedicate our full attention to the grievor's
grievances as they are before the Robert's panel, we could
have stabilized his situation, through a cease and desist
order. I suspect, after watching how jurisprudence is created
and utilized that the board may have set a precedent if we
granted relief, which would have had legal and political
implications. But, what disturbs me is that this board has
taken a cautious posture. This conservative approach has the
.tragic effect of sacrificing the grievor, and his welfare, in
the interests'of preserving the legal framework (status quo)
of the board. Additionally, this award further preserves the
- 3 -
rights of the employer, which includes spending tax dollars
£or employer counsel to advise on "how to" terminate an
injured worker. In the final analysis, we should put' people
before process ie., legal, bureaucratic or otherwise and I
would have. supported this board issuing, a cease and desist
order.
Respectfully submitted by,
FP LABOUR CONSULTANT S~vICE3
'Gary Majesky
Union Nominee
GM/mg
~iARKHAM, Ontario
July 1st, 1990