HomeMy WebLinkAbout1989-1880.Horne.90-08-23 ~' ~"~ ONTARIO EMPLOYES DE LA COURONNE
· / CROWNEMP~OYEES DEL'ONTARiO
~, GRIEVANCE C,OMMISSION DE
SETTLEMENT REGLEMENT
BOARD DES GRIEFS
180 DUNOAS STREET WEST, TORONTO, ONTARIO. M,SG tZ8 - ~UITE 2'100 TELEPHONE/T~L~:PHONE
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1880/89
IN THE MATTER OF AN ARBITRATION
Under
THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT
Before
THE GRIEVANCE SETTLEMENT BOARD
BETWEEN
OPSEU {Home)
Grievor
- and -
The Crown in Right of Ontario
(Metropolitan Toronto Convention Centre Corporation)
Employer
- and -
G. Simmons Vice-Chairperson
E. Seymour Member
D. Montr0se Member
FOR TEE C. Flood
GRIEVOR Counsel
Koskie & Minsky
Barristers & Solicitors
FOR THE R. MacDermid
EMPLOYER Counsel
Kerzner, Papazian, MacDermid
& Tremayne-Lloyd
Barristers & Solicitors
HEARING: June 15, 1990
GSB - FILE #1880/89
O.P.S.E.U. (Horne) and the Crown in Right of Ontario (Metropolitan
Toronto Convention Centre Corporation)
Members of the Panel:
C. Gordon Simmons
Vice Chairperson
Mr. Ed Seymour
Union Member
Mr. Doug Montrose
Employer Member
Appearances for the Emplbyer:
Mr. Robert A. MacDermid
121 King Street West, 5th Floor
Toronto
Appearances for the Union:
Mr. Craig Flood
Union Counsel
Hearing held in Toronto, Ontario on June 15, 1990
SUMMARY
The Ontario Public Service Labour Relations Tribunal certified the
Union as the exclusive bargaining agent for a number of employees
on October 10, 1989. The grievor, an employee with seniority, had
his services terTninated on January 12, 1990. The Union and the
Employer entered into a Collective Agreement pursuant to an award
by an Arbitration Board on April 27, 1990. The grievor claimed
that his dismissal was unjust and sought reinstatement pursuant to
Section 18(2) (c) of CECBA. The Employer raised a preliminary
objection claiming that the Board had no jurisdiction to enquire
into or resolve the grievance on its merits because there had never
heretofore been a Collective Agreement in existence between the
partfes. Held. The grievance is arbitrable on its merits. Once
it is established that the grievor falls within the jurisdiction
of CECBA then Section 18(2) (c) grants certain rights directly to
employees and such rights are in addition to any Collective
Agreement that may have been in existence.
By this grievance, the grievor, Mr. K. Horne, claims that his
termination was unjust and he seeks reinstatement without loss of
wages or benefits.
The Employer raised a preliminary objection to the Board's
jurisdiction to hear this matter on its merits. It asserted that
no Collective Agreement exists or has previously existed between
the parties and therefore the Board lacked jurisdicti6n to embark
upon an enquiry into or resolve the matter on its merits. It was
agreed by the parties that we would receive submissions on the
preliminary objection and issue a decision thereon before
proceeding to hear the grievance on its merits.
The factual background is not disputed and is as follows. In
the spring of 1986, the Textile Processors, Service Trades, Health
Care and Professional and Technical Employees International Union,
Local 351, made an application to be certified as the collective
bargaining agent for all employees of the Metroplitan Toronto
Convention Centre Corporation to the Ontario Labour Relation Board.
By its decision dated July 17, 1986, the Board certified the trade
union as the exclusive bargaining agent for all emplgyees of the
Metroplitan Toronto Convention Centre Corporatign in the
Municipality of Metropolitan Toronto, save and except Supervisors,
persons above the rank of supervisor, office, clerical and sales
staff, security staff, persons'regularly employed for nOt more than
24 hours per week and students employed during their school
vacation period.
3
Throughout the balance of 1986, the Convention Centre and the
Union conducted collective bargaining negotiations and on or about
January 16, 1987, the Convention Centre and Local 351 entered into
a collective agreement.
In 1988 the legislature of the Province of Ontario enacted the
Metropolitan Toronto Convention Centre Corporation Act S.O. 1988
c. 52 which, pursuant to s.14, made the Convention Centre a Crown
Agency within the meaningL of the Crown A~encv Act. The
Metropolitan Toronto Convention Centre Corporation Act was
proclaimed on October 1, 1988.
It is agreed between the parties that as a consequence of the
Convention Centre becoming a Crown Agency, the Labour Relations Act
of Ontario ceased to be applicable to the Convention Centre and the
collective agreement between the Union local and the Convention
Centre ceased to be binding on the parties.
It is further agreed that the Metropolitan Toronto Convention
Centre Corporation Act provided no provisions for transition of the
rights and benefits of the Collective Agreement from the Labour
Relations Act to the Crown Employees Collective Bargaining Act.
On or'about March 29, 1989, the Union, now referring to itself
as Local 351A, made an application for representation rights under
the Crown Employees Collective Bar~ainin~ Act.
During the processing of the Union's application the
Convention Centre was designated by regulation as the'Employer
pursuant to s.l(4) of the Crown Employees Collective Bargainin~ Act
R.O. 254/89. By its decision dated October 10, 1989, the Ontario
4
Public Service Labour Relations Tribunal granted representation
rights to Local 351A to represent the employees employed by the
-Convention Centre. It is acknowledged that the grievor was a
member in the bargaining unit and that he was not a probationary
employee at the time of this dismissal.~ Rather he was a regular
employee with seniority status. It is further agreed that the
dismissal was based on disciplinary grounds.
The parties, in the course of collective bargaining were
unable to negotiate a settlement of the various outstanding issues.
AccordinglY, the outstanding issues were submitted to final and
binding arbitration under sections 11 and 12 of the Crown Employees
Collective BarGaininG Act.
By its decision dated the 27th day of April, 1990, the
arbitration board imposed a collective agreement on the employer
a~d LocaI 351A and subsequent thereto, a collective agreement was
entered into by the parties based on the terms established by the
arbitration award.
The grievor's services were terminated on January 12, 1990 and
he filed his grievance on January 18.
The Employer acknowledges that the Grievance Settlement Board
has jurisdiction to adjudicate a dispute arising under an expired
collective agreement because of the decision in Re Ontario Public
Service Employees Union and The Oueen in RiGht of Ontario et al.
(1985) 51 O.R. (2d) 475 (Div. Ct.). In that decision it was held
that the Grievance Settlement Board is a statutory, tribunal
established under the Crown Employees Collective BarGaining Act
(the Act) and has jurisdiction to consider all grievances under any
collective agreement that may have been in force between the
parties from time to time who come within the purview of the Ac_ t.
This is different from the private sector where the norm is to have
ad hoc arbitration tribunals adjudicate grievances which is or may
be composed of arbitration boards having different members. (See
Re Romi ~Division of Ault Foods Ltd.) and United Food and
Commercial Workers, Local -175 (1986)~ 25 L.A.C. '(3d) 377
(Weatherill); Re F.B.M. Distillery Co. Ltd. and Brewery. Malt &
Soft Drink Workers. Local 304 (1987) 31 L.A.C. (3d) 122 (H.D.
Brown); Re Mack Canada Inc. and Interna_tional Association of
Machinists~ Lodge 2281 (1988) 2 L.A.C. (4'th) 304 (Burkett)).
Nevertheless, the Employer argued that in order for the Board
to assume jurisdiction there must have been a collective agreement
in existence at some time previously. Without the existence 6f
such a collective agreement, the Board lacked jurisdiction to
entertain the grievance on its merits. Counsel based his argument
on s.19 of the Ac__~t which reads as followS:
(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 their submissions, shall decide the matter
and its decision is final and binding upon the
parties and the employees covered by the
agreement.
(2) The Grievance Settlement Board has the
same powers as a board of arbitration under
subsections 11 (11) and (12).
(3) Where the Grievance Settlement Board
determines that a disciplinary penalty or
dismissal of an employee is excessive, it may
substitute such other penalty for the
discipline or dismissal as it considers just
and reasonable in all the circumstances.
Subsection 11 (11) and (12) read:
(11) A board has all the powers of the
Tribunal,
(a) to summon and enforce the attendance of
witnesses and to compel them to give oral
or written evidence on oath or
affirmation;
(b) to administer oaths and affirmations; and
(c) to accept or exclude any oral testimony,
document or other thing.
(12) A board may,
(a) enter any premises of the employer where
work is being done or has been done by the
employees or in which the employer carries
on business or where anything is taking
place or has taken place concerning any
of the differences submitted to it or him,
and inspect and view any work, material,
machinery, appliance or article therein,
and interrogat~ any person respecting any
such thing or any of such differences; and
(b) authorize any person to do~anythigg that
the board may do under clause (a) and to
report thereon to the board. R.S.O. 1980,
c. 108, s. 11.
It was the Employer's position that a collective agreement had to
have been in existence at some point in time before the grievance
Was filed in order to clothe the Board with jurisdiction.
Counsel'for the Union acknowledged that the issue before us
is unique. He also agreed that while a collective agreement had
existed prior to the time when the Employer became a Crown Agency
or corporation, the parties were now operating under a different
legal regime.
However, the Union disagreed with the Employer that the
Grievance Settlement Board lacked jurisdiction to consider and
resolve the grievance on its merits. He referred us to s.18 of
the Ac_~t which reads:
(1) 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,
(a) employment, appointment, complement,
organization, assignment, discipline,
dismissal, suspension, work methods and
procedures, kinds and locations of
equipment and classification of positions;
and
(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.
(2) In addition to any other rights of
grievance under a collective.agreement, an
employee claiming,
(a) that his position has been improperly
classified;
(b) that he has been appraised contrary to the
governing principles and standards; or
(c) that he has been disciplined or dismissed
or suspended from his employment without
just cause,
may process such matter in accordance with the
grievance, procedure provided in the collective
agreement, and failing final determination
under such procedure, the matter may be
processed in accordance with the procedure for
final determination applicable under
sectional9. R.S.O. 1980, c. 108, s. 18.
In particular, counsel ~for the Union stressed that s.18(2)
provides individual employees with independent rights. That is,
critical inalienable rights of employees are provided to
individuals which cannot be taken away by collective agreements.
In his view, these inalienable rights are not conferred by a
collective agreement nor are they capabl~ of being taken away by
collective agreements. Counsel for the Union relied on Re Ontario
Public Service Employees Union and the Crown in Right 6f Ontario
et al. (1983) 44 O.R. (2d) 51 (Div. Ct.) in support of his
position.
Further, counsel for the Union argued that the Board has been
conferred with certain rights by the Act that are independent of
any ¢ollectiue agreement. He argued that it is a permanent board
established by the Act which is not dependent upon consent of the
parties. Its remedial'powers are to determine whether just cause
exists in discipline and dismissal cases pursuant to s.18(2) (c) and
it possesses the right to substitute a lesser penalty by s. 19(3).
Therefore, it was the Union's position that this Board possesses
9
the jurisdiction to enquire into and resolve the grievance on its
merits.
We agree that this is a very unusual case. We are unaware of
any previous case with identical facts ever having gone before an
arbitration board.
One's initial reaction is that ~he Employer's position
contains a great deal of merit. This reaction is no doubt due to
the traditional approach that is taken in the private sector and
which is naturally the reaction anyone.who has had experience
arbitrating disputes in the private sector would have.
However, upon closer scrutiny one is driven to consider more
closely the differences that exist between the private and public
sectors. It'is clear that a collective agreement cannot detract
from the rights granted to an employee by s.18(2). This was the
conclusion reached in the O.P.S.E.U. case refer~ed to supra. That
case involved a grievance over an improper classification. The
grievors had sought reclassification and were successful. However,
they disagreed with the Employer's decision to make the effective
date of the reclassification effective from October 1, 1980. The
grievors claimed that the effective date ought to have been July
1, 1978. The Board stated that it had jurisdiction to resolve
classification issues by virtue of Article 5 of the collective
agreement and by s.18(2) in the Act. However, the Board concluded
that it lacked jurisdiction under either the collective agreement
or the Act with respect to matters of retroactivity and it'refused
to hear the grievance on its merits. While recognizing that it had
10
made retroactive awards in the past it distinguished those cases
because the classification had been'changed before the grievance
had been filed and therefore the issue was moot. In quashing the
award, Mr. Justice Osler, for the court, stated the following at
page 53:
We have no doubt that s.18(2) of the statute
applies notwithstanding the existence of the
collective agreement. The statutory section
is not limited in its application to
probationers or others who do not have the full
protection of the agreement. To the extent the
Board based itself on the view tha~ Art. 5 of
the agreement limits the operation of s.18(2),
we believe they are wrong. That is an
interpretation of the language of the statute
it cannot reasonably bear. We do not find it
necessary for the purposes of this application
to construe Art. 5 of the agreement standing
alone. We are of the opinion that the board
declined its jurisdiction by refusing to hear
evidence and to consider the grievance on its
merits.
In Ontario Public Service Employees Union v. The Oueen in RiGht of
Ontario et al. (1982) 40 O.R. (2d) 142 (Div. Ct.) the issue again
involved an alleged'improper classification. The grievors claimed
that they ought to have been classified "Supervisor of Juveniles"
(SOJ) and not as "Observation and Detention Workers" (O&D). The
Grievance Settlement Board stated that, "there seemed to be little,
if any, real .difference between the work being performed by the
SOJ-2s and O&D-2s" but refused to allow the grievance because ih
felt constrained to do so because of Re Metropolitan Toronto Board
of Commissioners of Police and Metropolitan Toronto Police Assn.
et al. (1981) 33 O.R. (2d) 476, a decision of the Court of Appeal.
11
The decision was quashed and Mr. Justice Callaghan, speaking for
the Court, said at page 145:
The issue before the Board was whether or
not the grievors had been properly classified.
We are of the view that the Metropolitan Board
of Police Commissioners case has no application
to the case at bar. That decision was premised
on the finding of the arbitrator that there was
no provision in the collective agreement
governing the matters in issue therein (per
Houlden J.A. at p. 479 O.R.). In the instant
case not only did the collective agreement
provide a right to grieve (Art. 5.1.1) the Act
itself provided a clear 'right to grieve
classification under s.18(2) (a). The right so
given is not restricted to allowing only
grievances within a particular series or within
a particular facility. To so restrict the
right to grieve as the Board did would render
such a right largely illusory.
Where a right to grieve a marticular
matter is specifically recognized by
legislation it ought not to be restricted
absent a clear intention on the mart of the
legislature to do so. [Emphasis added]
While the above two cases involved classification issues under
s.18(2) (a), collective agreements have not been permitted to
curtail the scope of s.18(2) (c) which involved disciplinary
matters. In Re Attorney-General for Ontario and Keeling et al.
(1980) 30 O.R. (2d) 662 (Div. Ct.) the grievor filed a grievance
pursuant to the collective agreement concerning his dismissal.
However, the grievance was not filed within the fifteen day limit
stipulated in the collective agreement. The Board held that~a
collective agreement cannot derogate from the Ac__~t and since s.17(2)
[now 18(2)] did not provide time limits the matter was grievable
on its merits. The Divisional Court dismissed the Employer's
12
appeal. Mr. Justice Reid,' speaking for the Court, stated at page
665:
In a word, the argument was that ss.17 and
18 ofthe statute guaranteed a right to grieve
with respect to a dismissal that could not be
derogated from by anything in a collective
agreement. The result would be that a failure
to observe the time-limits in the agreement
would not prevent the grievance from being
launched before the Board or inhibit the Board
in making a final determination of it.
The Board's reasoning reached back for its.
source to another case decided by the Board,
Re Joyce. In a word, the Board adopted the
reasoning it had adopted in that case. This
was notwithstanding that Joyce dealt with the
right of a probationary employee to grieve
whereas the question in this case was the right
of an employee to have a final determination
by the Board in spite of a failure to follow
the time-limit. Nevertheless, it appears to
us, that the reasoning of the Board in the
Jo¥ce case was appropriate to the present case.
In Joyce ~he Board had said:
The second limitation adverted to by
the employer, which it claimed denied a
probationary employee the right to invoke
his or her rights under s.17(2), of the
Act, is found in art. 30.6.1 of the
collective agreement . . . The article
provides:
30.6.1 Any probationary employee who
is dismissed or released shall not be
entitled to file a grievance.
In determining the effect to be given
to such a provision, it is, we believe,
important to recognize at the outset that
the Crown Employees Collective Bargaining
Act, 1972 departs from the traditional
model of the labour relations legislation
commonly prevailing in the private sector.
That is to say, in sharp contrast with the
usual Labour Relations Acts by which
individual rights are made subject to the
interests of the c~llectivity, in s.17 (2)
of this legislation one finds a clear and
unequivocal recognition of certain basic
rights which enur~ specifically to the
individual employee . · . The point is,
a~d regardless of its merits, the
LeGislature has seen fit to bestow upon
its employees certain fundamental rights
quite apart from and independent of any
other rights secured on their behalf by
their bargaining representative. As the
section quite explicitly states the right
to grieve the matters described in cls.
(a) to (c) is "in addition to" any other
rights of grievance that these employees
have secured under a collective agreement.
Succinctly, those rights are personalized
to the individual "employee". [Our
emphasis]
In all of the above situations there either existed or had
been a prior collective agreement that had expired. In this
respect, those decisions are distinguishable from the instant
situation. There had not been any collective agreement previously
signed by the parties under the 'present legal regime when the
grievor's services were terminated. As we have stated above, the
fact that ther~ had never .been a collective agreement would
ordinarily render the matter inarbitrable. However, in
considering the above authorities and the wording of s.18(2) of
the A~t it+ is our respectful opinion that the grievor does indeed
possess a right to grieve his dismissal and that the Board has the
jurisdiction to adjudicate his grievance. Our reasons are as
follows.
The Ontario Public Service Lab°ur~ Relations Tribunal
certified the Union on October 10, 1989 making it the exclusive
barqaining aqent within a define~ bargaininq unit in which the
grievor is a member, it is not denied that upon being certified
'the Union was granted certain rights and obligations under the
Act. That certification also brought the grievor within the
jurisdiction of the Act which likewise provides certain rights and
protections to employees. In this connection, s.18(2) extends
certain rights directly to employees as opposed to the parties and
it expressly states that, "in addition to any other rights of
grievance under a collective agreement, an employee claiming,"
that he has been disciplined or dismissed may process such matter
in accordance with the grievance procedure provided in the
collective agreement. While we recognize that ·the existence of a
collective agreement would have assisted the parties in setting
out the procedure to be followed while processing the grievance·
that problem, if there was one, was not raised as an issue. And,
in any event the grievor, the Union, and the Employer appea~ed
before the Board so if there had been a procedural problem, of
which we were not informed, it has been overcome because everyone
concerned with this matter was in attendance at the hearing.
Moreover, the· Court decisions cited above appear to support the
position that employees, as opposed to parties, have substantive
rights by virtue of s.18 which cannot be taken away by the
collective agreement. Once an employee can establish that he.
falls within the jurisdiction of the Act, then it is our view that
s.l$ extends certain protections directly to the employee. As was
stated in the Jovce case quoted in Keeling, "succinctly, those
15
rights are personalized to the individual 'employee'" and also in
the OPSEU case reported at 40 O.R. (2d) 142 above, it was stated:
Where a right to grieve a particular matter is
specifically recognized by legislation it ought
not to be restricted absent a clear intention
on the part of the legislature to do so.
We agree with those statements which, we believe, support the
conclusion we have reached.
Finally, and perhaps less importantly, we are aware that under
'the Public Service Act and Regulations non-unionized public
servants may pursue dismissal grievances before the Public Service
Grievance Board. However, s.23(2) of that Act refers to a deputy
minister dismissing a public servant which is not the situation
that is before us. In other words, the grievor would not be able
to have his grievance dealt with on its merits before that Board.
Accordingly, for' all of the foregoing reasons, it is our
decision that the grievor does have a right to proceed before this
Board to have his grievance resolved on its merits. The Registrar
will be requested to establish hearing dates for this purpose.
16
Dated at Kingston, Ontario this 23rd day of August , 1990.
C. Gordon Simmons
Vice Chairperson
Mr. Ed seymour Member
Mr. Doug Montrose - Member