HomeMy WebLinkAbout1989-1062.Hyland.95-09-22~.?'~-*: -*. ONTARIO EMPL O Y~: $ DE LA C OURONNE
,~ CROWN EMPLOYEES DE: L'ONTARIO
~' GRIEVANCE ' C,OMMISSION 'DE
W ~ SETTLEMENT REGLEMENT
BOARD DES GRIEFS
180 OUNDA$ STREET WEST, SUITE 2100, TORONTO, ONTARIO. MSG IZ8 TELE/:'HONE/T~L~HONE; (416) 326-1385
180. RUE DUNDAS OUEST, BUREAu 2~00, TORONTO (ONTARIO). MSG ;Z8 FACStMILE/TELECOPiE : (4t6) 326-1396
........ ..... ~, ~'~ GSB #: i062/89
~,~.~~'V~' OPSEU # 89D439
I~ THE. VO, TTER oF ~ ARBI?m~.TXON .
SEP 2 6 1995 Under
^pp~^L'~-J" BOAR-~E CROWN EMPLOYEES COLLECTIVE BARGAINING ACT
~- Before
THE GRIEVANCE S~TTLEMENT BOARD
BETWEEN
OPSEu
Grievor
- and -
The Crown'in Right of Ontario
(Ministry of Correctional Services)
Employer
BEFORE E. Ratushny' Vice-Chairperson
J.C. Laniet Member.
~ D. Montrose Member.
FOR THE A. Ryder
GRIEVOR Counsel
Ryder, Wright, Blair & Doyle
Barristers & Solicitors
-FOR THE M. Mously
EMPLOYER Grievance Administration Officer
Ministry. of the Solicitor General &
Correctional Services
HEARING August 25, 1995
DECISION '
On May 8th, 1991, this paneLof the Grievance Settlement Board made the following order
in relation to' the Grievor, Mr. Blair Hyland:
The grievance is allowed and the Grievor will be reinstated with
pay from the date of dismissal and interest. We will remain seized
~ in the event that. there is any difficulty in imPlementing this award.
[Emphasis added] ~
Three separate grievances were filed by the Grievor, arising out of the same matter. The relief
.sought may be summarized as follows:
(t) · Compensation for the adverse income tax consequences of receiving back pay and interest
as a lump sum in a single taxation year;
(2) Removal of documentation which is related to the initial Wrongful dismissal grievance
from the Grievor's personnel file; :
(3) Compensation and/or other redress for loSt opportunities for employment advancement
during the period between, dismissal and reinstatement.
These grievances were brought before another panel of.the Board on October 7 and 12, 1994. In
Written reasons dated December 22, 1994 (Vice-Chairperson Roberts), that panel sustained a
preliminary objection, declined jurisdiction and directed that the three grievances be referred to
.us as the original panetl
At the he~ing before us, the Grievor abandoned the third of the grievances referred tO
abbve. However, he is s~eking to have the lump-sum payment of his back pay and' interest re-
calculated by way of "gross-uP" to take into account the adverse income tax consequences which
he experienced. He also continues to seek to have the documents in queStion; removed from his
file.
The Employer took the position before us that the Board no longer has jurisdiction to deal
with these issues. In other words,, the only jurisdiction which has been reser',)ed to us is the
2
calculation of "pay from the date of dismissal and interest". The Employer asserts that the two
issues now. before us are beyond the scope ~of reinstatement, "pay" or "i'ntere'st". As a result, the
purpose for the existence of this panel has ended or, to use the Latin phrase, we are functus
officio. ~'
The G~r. ievor argues that we are entitled to deal with these issues even though they may
not fall within the specific wording of our original Order. In relation to whether or not we are
..f. unctus, ~both parties agree that there is no distinction to be drawn between the "gross-up" issue
and the documents issue.
However, the Employer did take the position that even if we were not functus on the
"gross-up" issue, such relief should not be granted in any event. It was argued that this remedy
was granted for the first time by the recent (July 24, 1995) G.S.B. decision in Grinius (Vice-
Chairperson .Fisher). The Employer's position was that there was a dissenting opinion, that the
decision is contrary to well-established authority which should not be considered to be over-
turned and that, in any event, it was handed down some four years after the Board had iuade its
award to the Grievor in May of 1991. While it is the practicerfor panels to give great deference
to 'Board decisions, we agree with the' Employer's submission that difficulties would be created
by attempting to introduce this category of relief into awards which already have been made.
However, in view of our decision on the functus issue, we need not determine the applicability
of Grinius to the' initial awed in the grievance which is before us.
The following authorities were raised before us in relation to the functus issue: .Hyland
(Roberts - referred to above); Figliano (G.S.B. 218/79), Prichard); Levere (G.S.B. 1141/86,
.. Watters); Re McDonnell Douelas 29 L.A.C. (4th) 284 (Burkett); and Courtenay (G.S.B. 912/88,
Backhouse). 'In Fieliano, the Board commented on the desirability of the doctrine of functus
officio; even for a stat. utory labour arbitration tribunal:
It offers finality to proceedings, giving rise to final awards which
the parties may interpret, enforce-or review. It creates an incentive
for parties to put their full and best case before the Board at one
time, subject to express reservation Of certain matters to a .~
subsequent stage in ·the proceedings. Perhaps most importantly 'it
permits the parties and the Board to agree to bifurcate the
proceedings between, for example, liability and remedy, without
inviting a rehearing of the entire case at the second stage in the
proceedings.
While this judicial doctrine must continue to be adapted to the context of labour arbitration, we
agree with the panel in Figliano that:
... jurisdiction is retained only with regard to those issues on which
jurisdiction is reserved either expressly or implicitly and those
issues on which ~the board has not reached a .final conclusion.
' ' Whether or not jurisdiction is retained becomes therefore a question
of fact to be redolved by reference to the board's decision and the
conduct of the proceedings before it.
in that case, the Board had ordered that the grievor "be reinstated as of Monday, November 5,
/ 1979". The grievor requested that the-date be postponed so that he could c0mptete'a full-time
educational program in which he had enrolled and which he attended during the period of his
suspension. The Board clearly was of the view that such a postponement would be fair and
reasonable in the circumstances. Nevertheless, it declined to make such an order. To do so would
have been to vary a specific and unequivocal term of a final order.
In Levere, the Board found that the 'gr!evor had been improperly classified and limited
the award in. relation to retroactivity but retained jurisdiction "to assist with any issue that might
arise from the implementation of this award". Such a broad retention of jurisdiction leaves it open
to raise almost any issue which is consistent with the award which was made. Even though the
claim for damages should have been raised at the initial hearing, the reservation of jurisdiction
was sufficiently broad to allow it to be addressed subsequently.
There may be circumstances where fin award may be revisiied even though there has not
been an express reservation of jurisdiction. In Re McDonnell, the arbitrator accepted that he was'
'not entitled to "amend, .'vary or revoke" an award after it had been issued. However, it may be
necessary to "complete" an award where it is necessary to meet the req~irements of a collective
agreement. In that case, the award was at variance with certain recall provisions of the collective
agreement which the parties had not drawn tO the attention of the arbitrator. As a result, changes
were made "in order to complete my award and make it final and binding".
The converse situation may also demand that further issues be addressed. In this situation,
the issues have been addressed by the parties and are essential elements of the award but have
been ignored by the arbitrator. In _Re McDonnell, the following passage is quoted from the
judgment of O'Driscoll J. in Bryant Motors Ltd.:
The issue of lost wages has not been clearly and unequivocally
determinbd by 'clear, unambiguous'and enforceable language and
must therefore be remitted to the arbitrator to complete his statutory
duty by clarification or amendment of the award, i
These circumstances do not involve a reservation of jurisdiction but amount to a declining to
exercise jurisdiction.
The decision in Re McDonnell'.also quotes the following passage from 'the decision of the
British Columbia Labour Relations Board in R'e Gearmatic and U.S.W.:
It is pe3fectly proper and within the expectation of industrial
relation~ participants, for an arbitration board to request the parties
to' work out for themselves the details of any monetary aspects of
an award and to later, failing agreement between the parties, make
an award in respect of those details itself.
This may not require an express reservation of jurisdiction but where such a reservation do?
occur, it must govern.
In Courtenay the Board had upheld the grievor's allegation of sexual harassment and
ordered that the Employer "take whatever steps were appropriate to maintain a work environment
free from ~exual nt"
harassme . The,grievor did not request damages for the sexual harassment
which she experienced and none were ordered. Further incidents of sexual harassment occurred
and the grievor then· sought damages "for breach of and failure to implement" the Order of the
Board. In effect, the Board concluded that it was functus in relation to any attempt to obtain
damages for the sexual harassment which preceded the Order. However, the Board did accept
jurisdiction to Order damages arising out of the breach or failures of the Employer to carry out
the initial decision. The Order had contained·a specific direction to the Employer over which the
Board had reserved the right to monitor implementation.
The issues of"gross-up'[ and the grievor's personnel file were not addressed by the parties
at the initial hearing and cannot be considered to be matters which were in dispute. Thus, there
has been no declining of jurisdiction. Nor was there an "open-ended" reservation of jurisdiction:
The reservation of jurisdiction was restricted to "pay from the date of dismissal and interest". The.
issues which the grievor now raises are not related to the implementation of reinstatement or to
the calculation of. pay or interest.
In fact, by letter to .the Employer dated January 20, 1992, counsel for the Un!on, on behalf
of the Griever, expressly stated that both were "satisfied with all aspects" of the "calculation of
compensation owing"-. The only outstanding isgu~ was the rate of interest, which the Employer
later conceded should be 13,5% rather than the 9% which had been proposed at the time. The
Employer's representative pointed out that the negotiations leading up to the final settlement
following the award took into account such issues as~ overtime; vacation credits; shift premiums;
holiday pay; and the calculation of interest. We agree that, quite apart from the functus issue, it
would be unfair to introduce additional elements into the equation at this time.
In directing that these grievances be referred back to the original panel, Vice-Chairperson
Roberts made a number of observations about the potential consequences of expanding the
concept of reserving jurisdiction by "implic~ation":
Would it lead .to the absence of "closure" in cases and the advent
of inefficient "piecemeal" determinations? Would it absolve counsel'
from their responsibility to raise all 'logical issues, including
implementation issues, in a single proceeding? Would it lead to one
party seeking strategic advantage over the other by intentionally
staggering the presentation of such issues? Would it lead to parties
seeking to obtain more than "one kick at the can" by parsing broad
issues_ into several sub-issues and presenting them one 6r two at a
time, thereby eroding the doctrine of funct, us officio?
We share these concerns, which could result in adverse consequences for grievors as 'well as for
employers. While each case must be decided on its own particular circumstances, the objectives
underlying the doctrine of functus officio continue to be important.
Dated .at Ottawa this 2 2 day of September, 1995.
E. Ratushny, person
J.C. Laniel, Member
.. D.~ Montrose, Member