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HomeMy WebLinkAbout1989-1798.Fung & Anand.91-09-03180 DUN, OAS STREET WEST, SUITE2100, TORONTO, ONTAR.rO, MSG 1Z8 TELEp~.ONE/T~".LEPHONE: /4r6.1 3_.36-r385 [798/89, [04/90 IN T~ ~TTE~ OF ~ ~IT~TION. ' Un,er THE CRO~ EMP~YEES COLLECTI~ B~GA~NIN~ ~CT .... .Before .... . . ~rievor The Cro~ in Right of. Ontario~.~ · ' ~ ' (Minist~~9f Revenue) .... BEFOg:. S. Stewa~ Vice-~i~erson. . ~.. . J.~' car~thers ~ .. Me~r D. Montrose Me.er FOR ~ ~. ~and ~I~O~ Counsel ' ' Ay '~ ~- Scott &~ len ' ' '" Barristers .& Solicitors FOR THE M. McKeo~ EMP~YE~ · ~ Co~sei Fraser & Beatty " ~rristers & Solicitors " FOR. ~E A. Chyczij THI~ P~TY Counsel ~nningham, Swan, Carry, Little & Bo~am Barristers & Solicitors EE~ING Janua~ 9, I0, 11, 1991 ' May 29, 1991 June 12, 1991 .. DECISION In an interim decision dated April 16, 1991, the Board dealt with a number of preliminary issues arising out of the grievances of Mr. Fung and Mr. Anand. As indicated in tha~ interim decision, both Mr. Fung andMr. Anand are property assessors employed by the Ministry of Be~enue and their grievances arise from their u~successful applications for the position of senior assessor for the city of Toronto assessment office. There were two successful applicants for that positon, A. Lowry and P. Thachuk0 AS noted in the interim award, both Mr. Lowry and Mr. Tha~huk were notified of the hearing and their right to participate. Mr. Lowry was not represented at the hearing. Mr. Thachuk attended part of the hearing and made some representations to the Board on his own behalf. Following the Board's April 16, 1991 interim decision, the hearing in thi~ matter proceeded on May 29, 1991. Mr. Thachuk was present at that time. On that date,' counsel for the Union and the Employer advised the Board that they had, in the words of Mr. Anand, "reached agreement on a significant part of these cases". They presented the Board and Mr. Thachuk with an unsigned document which indicated their agreement that the competition in i~sue would be re- run, with the Board to determine appropriate safeguards if 2 the parties were unable t'o do so. Mr. Thachuk was not involved in discussions leading up to the agreement reached between the Employer and the Union. He advised the Board that he wished to consider what position he wished to take · with respect to the matter and wished to have an op~rtunity to obtain legal advice before making any submissions t© the Board~ ' Mr. Anand and Mr. McKeown had no objection to this request and on consent the ·Board adjourned the hearing until June 12, 1991, the next scheduled hearing' in order to provide Mr.. Thachuk · with the op~rtunity' to obtain and inst~ct counsel with At the outset~ f the hearing on June 12, 1 ~ard was pre~ented With'a finalized memorandum of agre~ent"dathd 3h~'~'::~ff,"~91, which had ~een' exerted by the Union and th~'EmPloyer. The 'memorandum of agre~ent for the r'e-running of ~he~competitioH~ and for the withdrawal of the grievances. It provides that safeguards for the competition will be dete~ined by the ~ployer and that Mr. Thachuk ~ill be entitled to provide input to the Union and' the Employer with respect to this ~tter when they are attempting to re~ch agre~ent. The agre~ent further ~rovide's that' in the event the Union and the Employer are 'unable to reach agre~ent with respect to safeguardS, fresh grievances on the issue of safeguards may be filed. The Board was not requested to make the memorandum of agreement an order of the Board nor was the Board requested to remain seized with respect to this matter. Mr. Thachuk was represented by counsel. Ms. Chyczij advised the Board that Mr. Thachuk objected to the memorandum of agreement and that it was his position that the hearing ought to proceed. It was the position of Mr. Anand and Mr. McKeown that since the grievances had been withdrawn, the Board no longer had jurisdiction with respect to the matter.. Ms. Ch¥czij requested an adjournment. She advised %he Board that she had been only recently retained by Mr. Thachuk and that she wished to have an adjournment in order that she could prepare to address the issue of the Board's jurisdiction to continue the hearing. Mr. Anand and Mr. McKeown were opposed to.any adjournment noting that the hearing had been adjourned previously in order to allow Mr. Thachuk an opportunity to retain and instruct counsel. The Board dealt with the matter by hearing from Mr. .i Anand and Mr. McKeown with respect to the jurisdictional issue. It provided Ms. Chyczij with an opportunity to make written submissions and for the filing of reply on an expedited basis with respect to this issue. The Board also heard submissions from all counsel with respect to a number of issues raised by Ms. Chyczij that would have to' be determined in the event that the hearing proceeded. It must be noted that the opportunity given by the _Board. to ~.. Ms. Chyczij to make written submissions was clearly an . indulgence of the Board, in view of the previ~ous adjournment of the. matter. However, given the fact that Ms. Chyczij was presented With the final.minutes .of. "'~. settlement in which the grievances were withdrawn only on the morning of the hearing and' the expedited basis upon which written s~bmissions could be' arranged~" i~ w~s Our ~ view that~such~an indulgence was o at . ~" Mr'~"Thachuk; as- an incumbent in-a job 'posting grievance, is entitled~to object to the settlemen{~of a~grievance ~Y'-virtue'of-whi~h'~th& ~'' grievance .is withdra~'' must ~co~enCel'wi~h ~h 'analySiS of~ the basis for %his Board's jurisdiction. This ~Bo~rd .... :"' derives its juriSdict-io~' from the Cr~ Employees '~ " ' ..... " Collective Bargaining Act. Secti0~ 19(1) of 't~e kct provides as follows: Eve~ collective agre~ent shall be' de~ed ~to provide that i~ the event the Parties are unable- to effect settlement of any.differences between thyselves arising from the interpretation, application, ad~nistration or alleged contravention of the agreemeDt, including any question as to whether a matter is arbitrable, such matter may be referred to arbitration to the-Grievance Settlement Board and the Board after giving full op~rtunity to the parties to present their evidence and to make their sub~ssions, shall decide the ~tter and its decision is final and binding u~n the parties and the employees covered by the ag r e eme nt · Clearly, under s. 19(1) of the Act, it is disputes between parties that the Grievance Settlement Board is empowered to adjudicate upon. Parties are specifically defined under s.1 {1) (k) of t~e Act as follows: "party" means the employee organization that is the bargaining agent for a bargaining unit, on the one hand, and the employer, on the other hand, and "parties" means the two of them; The status of persons having an interest in a matter. that is not the subject of a difference between the parties as defined by statute has been the subject of decisions of this Board. This Board's decision in F~ancis, 1528/86, (Brandt) dealt with a dismissal grievance, a matter which a employee has a statutory right to grieve,, pursuant to s.18(2) (c) of the Crown Employees ColleCtive Bargaining.. Act. Clearly, there can be no greater interest in a proceeding than that of an employee who has been discharged and seeks to challenge his dismissal. In that instance the Union withdrew the grievance prior to the matter proceeding to arbitration. However, the grievor attempted to pursue the grievance before the Grievance Settlement Board. At p. 12 of its decision in Francis, this Board stated.. "We agree with the submission that by reason of the settlement of this matter between the Union and the 6 Employer the matter cannot be ·brought independently to the' Board by the grievor·:'..'The Board' n6t~ed that'sUch a conclusion may appear to compromise the grievOr's statutory right to challenge his dismissal, but rejected this propostion. 'In addressing ,this isSUe at pp. "12-13 ' the Board stated: -7. ~ ·..Primarily the 'employment interests of public sector employees are intended to be protected through collective bargaining. We do not regard· collective interests to be protected only at the negotiation s.~a~e of col~ect-iue 'bargaining., They'- - are also protected at the stage of contract administration.. This view is Well 'esta~lished"ln~ ~ the private sector where Labour Relations Boards have frequently stated that a union enjoys a ~-. 7~..;'--:, discretion to determine whether or not, in the interests of the collectivity, and individua~ grievance should be settled or withdrawn... In our opinion similar considerations prevail under the Crown Employees' ¢ollect~ive Bargaining ACt." Sec~i~On 30 of the Act puts upon the employee organization a duty not to',."act' in a manner that is"arbitrary?' e,/,:; discriminatory or in bad faith in the representation employee organization or not". That language directly parallels-.that found in Section 68. of the:c' Labour .Relations Act. It is through Section 30 of the Ac___~t that the interests of individual employees are" .'- protected in situations like the one before us where the Union has. settled a grievance and thereby preve'n~ed the Grievance Settlement Board from taking jurisdiction under section 19 of the Act.' The Board further stated, at p.13 of its decision: :" "Under section 19 the Board has'juris~iction where the "Parties", that is the employer and the union,' have not been able· to effect a settlement of the matter''. The Board also concluded that it did not have jurisdiction to determine whether there had been any breach of 's. 30~of th 7 Act as that was a matter that falls within the exclusive jurisdiction of the Public Service Labour Relations Tribunal. At p.14, the Board states: ~ It would appear to us that, in view of [the remedial powers of the Tribunal] it would be possible for the Tribunal, should it find a violation of Article 30, to direct as. part of 'its relief that the "settlement" be vacated in which case the way would be cleared for the grievor to return to this Board for a hearing of his grievance on the merits. The same result 'was reached by this Board in Blake 1276/87 (Shime), where the reasons set out in Francis were adopted and applied. ~ . r - Ms. Chyczij submits, however, that the facts of t~is case are distinguishable from the facts of Francis and Blake, as in this case~.the Board is seize'd with the ~a~ter; having commenced the hearing._ She notes that these decisions do not specifically deal with the case of a "third par~y" in the position of Mr. Thachuk. In her submission, once the Board became seized with this matter and gave Mr. Thachuk status to participate in the proceeding, Mr. Thachuk must consent to any settlement of the matter and that it "would be an abdication of this Board's jurisdiction to permit the Employer and the Union .to "settle" this matter by withdrawing it from the Board.." The status of persons other than the parties to a 8 collective agreement to participate in arbitration proceedings are discussed in the seminal decisions in Re Hoogendorn and Greening .Metal PrOduct's & Screening ' Equipment Co. et al, [1966]~'20~R. 746, 58 D.L.R.~ (2d)"338 (S.C.C.) and Re Bradley et al and Ottawa Professional Figh{ers Association et al, [1967] 63 D.L.R. (2d) 376,.2 O.R. 311 (Ontario Court of Appeal). In Hoogendorn, the issue at arbitration was the Union's reliance on a union security clause requiring that all employees must be members of the Union to effect the discharge of an employee. The decision of the Supreme Court of Canada concluded 'that the requir~en%s of naturml justice dictated that an empl~ee who was subject to discharge in such circ~stances had the right to be notified of the hearing., %O be present ~f %h% he"ring aha ~epresented by counsel, and to present evidene~~ ~nd gross-examine witnesses. A s~ilar decisioh' w~ '~ac~d in" Bradley, in which the Court of Appeal concluded that an arbitrator erred in proceeding with. a job competiti0~' hearing in which p'ermons who could be displaced as a result of that proceeding were not given' noti:e of the hearing and their right to participate in the hearing. The reasoning in that decision is clearly based on considerations of natural jumtice. At p.317 the de:ision states;~ The fact that particular provision for notice is not made. either in the statute or in the collective agreement is of no moment. There is a ~arge. silence in both .- and this~ is~ not limited?. to collective bargaining relations in fire fighting - so far as concer.ns the procedure to be followed in an arbitration. The common law has been specially sensitive to deprivation of property or contractual advantages in proceedings of an adjudicative character without 'previous notice thereof to persons likely to be directly affected, unless there is clear statutory exclusion of such notice. While these decisions deal with the issue of the rights of persons who may be affected by the result of a proceeding to participate in that proceeding, they do not specifically 'address the issue of the status of those persons in such a proceeding. In particular, they do not address the issue of the right of such a .person to preclude the settlement of the dispute that gave rise to the proceeding. However, Ms. Chyczij relies 'on two arbitration awards, Pacific Western Airlines Ltd. and International Association of Machinists and Aeorspace Workers, (1985), L.A.C. (3d) 396 (Munroe) and York Univer~ity and York University Staff Association (1980), 26 L.A.C. (2d) 343 (Brunner). In her submission, these awards support the position that Mr. Thachuk has the status as a party to this proceeding and must concur with any settlement reached between the Union and that absent such concurrence is entitled to insist that the hearing proceed. We will deal with the latter award first. Ms. Chyczij relies on York University in support of the position that once an employer has selected a successful candidate it is not open to th~ ~mPl'0yer to rec6~sider that,decision and revoke its original selectioh. She further r'elies on this award in" support of the~proP°'S~tion' that ~he re-running of the competition is a matter "outside' the' jurisdiction' of the. Collective~ Agreemen't" and ~"within the exclusive- jurisdiction''~ of the Board". In this 'award,' the g~ievor had been advised that she was the successful applicant fo~ ~ position.' However, the employer subs~uehtig:'~econsi~erea 'its. decision to'award"' the ~sition',.~'%o ~'he'g~ievor .arid'awarded it ~o~.another person. In concluding~that %h~ employer"had'violated t~ arbitrator' e~ressed the' vi~ nnat it was not open to the employer to reconside~'~f{'~ original'-' decision. At.pp. 351-352 the arbitrator states~ "In my opinion any error in t~e 'decislon~king process must"be corrected thrbugh; the grxevance procedure '~t"th~ instan~ of the unsuccessful a~plicant as~ specifically cont~pl~ated ~ ... the c011ecti%e ag~%~ent'', The arbitrator goes on to state: "...'a unilateral reconsideration by the Employer has the appearance'of unfairness and is ve~ likely to be ~sunderstodd". 'The arbitra~or further not~s that if the'.--" ~ployer had not Changed 'its p6stio~ "any errors in the selection process would have been corrected under the ' grievance and arbitration ~roceedings". We cannot accept Ms. Chyczij's submission that the reasoning in this decision has application to the facts of the case at hand. In this case there is no issue of a unilateral revocation of an original decision on the part of the Employer. The settlement that was reached in the case' at hand was between the Employer and the Union. ~he reference to the resolution of the matter through "the grievance and arbitration proceedings" does not support the position advanced on behalf of Mr. Thachuk. It is merely reflective of the proposition that it is not open for the~ Employer to unilaterally revoke its decision and that any changes following its announcement of its decision with , respect to the chosen applicant must be made in conjunction with the bargaining agent. We agree with Ms. Chyczij's submission that the Collective Agreement does not specifically contemplate the re-running of a competition. However, collective agreements invariably do not provide for remedies for the breach of their provisions. This matter does not prevent a Board from fashioning a remedy, nor does it prevent a union and an employer from determining the appropriate resolution of their differences. Indeed, the resolution of differences by the union~ and employer themselves is clearly the goal of the grievance procedure, of which the arbitration process is the last step. There is no question that the reso'lution of.a'difference and the withdrawal of a grievance ousts the Board's jurisdiction to adjudicate that The c'riti, cal~ issue in this case~is the status differencE. of a person in the POsiton ~' ' of Mr. ,Thachuk'to~object to such a withdrawal~ a matter which ~is 'not. a~dre~sed ih the ~¥o,rk In Pacific Western Airlines Ltd.,. the issue .was arbitrabili%y. There be~n a merger which ~resul%ed the need for eOnsolidat~6n~ 6~ th~"seniority~ ~ists...~ grievance filed on-behalf'of employees fr~'a certain geographical location' Proceeded to an'~ arbitration hearing~,~ at which %~e two other groups of~ employees were;~.~as described i~ th,' award, "treated ~s'~p~rties¥'~ t'07 ~h~~' dispute. Subs~uent' to %he release of2the' award~.inh~ entered into minut~s'-of settlement gh~c~ provided,, inter ~li~, that the Union would not enforce the arbitration award. The' issue t~at i~ 8eli% w~%h in t~e award referree to by Ms. Chyczij is whe%her that Settlement was dis~sitive of a subsequent'grievance of employees who had., participated as persons entitled to ~o%ige i~ the earlier, hea~i~g and whose Subsequent grievances raised a~ issue rela%ing to their seniority in connection with thei~ lay~'~ off, It is appropriate'to record ~he co~ents.of the arbitrator at lon~h~ con~er~n~ eh~ omphas~, pIac on~ 13 this award by Ms. Ch¥czij in her submissions. At pp. 403-4 the award states: The IAM has advanced two distinct arguments as to why the settlement should not be dispositive of this grievance. This first is that, as a matter of law, it is impossible for the settlement to bind [the grievors] regardless of: its terms, because neither was a party thereto.' True, a trade Union's exclusive bargaining agency does not stop at the negotiation of a collective agreement. It extends as well to the administration of the agreement, and generally is taken to include the right to abandon or settle a grievance with or without the concurrence of its grieving member. However, in exceptional circumstances, the trade union's exclusivity must give way to' other interests or values. The cl-earest instance is where a trade unioa has allied itself with one of its members who is seeking to occupy the job of another member. In such a case, the employee who the trade union is seeking to dislodge from the contested position is. entitled to independent status as a party to the dispute: see Bradley, cited above. In the view [of the previous arbitrator], [the present grievors] (as well as others) were entitled to such status. The submissioa made to me is that, from that moment forward, they ceased to be represented by the the IAM with respect to the dispute about their lay- offs; that as a matter of law, any agreement between the IAM and the company cannot be taken to have extinguished the pre-existing rights of "third parties" such as [the grievors]. For present purposes I will assume that a trade union has no capacity to settle a grievance in circumstances such as those in the Hoogendoorn and,Bradley cases, supra, without the concurrence of the employee(s) in which it is ia a conflict of interest: further, that in so far as [the grievors] are concerned, that was the situation in proceeding before [the previous arbitrator] in late 1982. However it does not necessarily foll°w that that was still the situation in April, 1984, when the contentious settlement document was executed. As I have intimated, the suspension of the IAM's exclusive bargaining agency, with respect to the lay-offs of [the grievors] must be viewed as an exceptional event. Generally, the notion of exclusivity is to be preserve~ and protected as an integral feature of the scheme of collective represent.ation as we know it. ~VerY simply, 'it is my 9iew that there should be a return to the norm - a bila.te, ral collective. bargaining relationshi'p - as soon as the reason for departure from that norm has dissipated~ . Here, that moment arrived upon the publication of [the previous arbitration award] (the content of which was al-1 that [.th.e grievors]. could.have wished) in early 1-983, "and the 'apparent willingness of the IAM (and all of its lodg~es) to be governed and controlled by the arbitrator' s"in~erpretive ' findings'.' In the' result,' 'I. find ~that the 'I~AM was i~ a position, in April, 1984, -to compromise, settle or abandon - any grievance which' [th'e grievors] had or may have h~d in connection with their lay-offs. While the Board concluded that' the Union had: a.uthority settle such grievances, it went on in that award to conclude the terms of settlement reached by the~Employer The previous a~ard does not stand for.~the~proposition-.. that a union and employer cannot resolve a dispute..af.t.9~ it. has proceeded to arbitration without the concurrence of a- person whose interests are in conflict with those advanced by the union.. ~Thile the summary note appearing at the commencement of the award suggests .that it stands for·this proposition, as the foregoing excerpt from that decision' indicates, that precise' issue was not before the arbitrator for determination. The arbitrator indicates clearly that it is assumed that this proposition is true for the purpose of the analysis. The arbitrator refers to the decisions in Hoogendoorn and Bradley in connection with that discussion, 15 however thgre is no real analysis of the nature of the status of an individual who has the right to participate independently in an arbitration proceeding as a person who may be affected by the outcome of that proceeding. Et is clear'that the requirements of natural justice which give rise to the right of a person Who may be affected by a decision of an arbitration board uto receive notice of the hearing and participate in 'the proceeding, can, by their nature, apply only in the context of a hearing before an arbitration board. Incumbents in promotion grievances are inevitably referred to as third parties in arbitration hearings before th'e Grievance Settlement Board and in arbitration boards in the private sector. However, it the union and the employer who are the parties to the collective agreement and to the arbitration- process. As previously noted, under the Crown Employees Collective Bargaining Act, the~parties are specifically defined, When the basis for the entitlement of a person who may be affected by the proceeding is considered, it cannot be concluded that a person in the position of Mr. Thachuk can properly be described as a.party to this proceeding in the same sense that the Union and the Employer are parties to this proceeding. It is our view that a person in such a 16 position is 'more ~accurately described as an intervener. This was the term used to describe persons with an i~terest' in a matter other~than the Parti~ ~o the collective '~' agreement in Beacon Hfli Lodg~ Inc., (1990), 15 L.A.C. (4th) (Craven), an award r~ferred to' by Mr~ McKeownl The rights of an intervener.~in' the ~ircumstances of Mr. Thachuk' which derive from concerns about the f~irness 6f a proceeding must,. by~ their-nature, be limited to existence of the proceedings in which that person interge'nes~° -'An--'~' intervener can have no independent ~-ri~ht '%0 i~s~s{ that~'th~ dispute continue when the parties that have initiated that dispute wish%kto_ end it. ~.~ Zn 'theL'Fr~'~:cfs~ and "Bla~ ''~'~ i'. decisions, supra';' the~Bbard' deai't~:with~ p%rso~' whS~G6~'e seeking to pursue-matters that they wet&~ eEtitl~a tO grieve ~ statute. The inter~s~-6f~-& per~°h~in~'s~c~&"'~itu~ioh could not be greater. : However, ih'~'~hose clrc~stances' the Boar4 has clearly, '~nd .correctly in odr' vi~, concluded that it is the Union' and' the"~mplOyer who ~re':the'part~es tO a collective agr'e~ent and-tha~ an individu~emplo~ee whose rights are dire6tly in issue is not' entitled to d~nd that a grievance be "pursued if the Union chooses to withdraw that grievancel~- such' an analysis' recognizes a' fund~ental premise of collective bargaining, which is th~ representation of individual interests' by a bargaining agent which'is entitled to dete~ine which interests will be 'advanced and which will not'. It is the parties to the Collective Agreement, the Union and the Employer, that determine whether there is a difference between them, which gives rise to the Board's jurisdiction to resolve that difference and hence the proceeding in which the position of another person may be affected. Once the parties determine that a difference between them no longer exists, there is nothing before the Board to be determined and the context in which the rights of an intervener arise no longer exists. It is our ~iew that the Board's decisions in Francis and Blake have direct application .to the case at hand. .We cannot accept Ms. Chyczij's submission that the facts of this case are distinguishable because thei'Board has commenced its hearing in this matter.- It is. our view that_ implicit in the right of a party to submit a difference to arbitration is that party's right to withdraw that difference. As alluded to earlier in this decision, the settlement of disputes between parties is ,the intention of the grievance procedure, of which the arbztrat~on process is the final step. It is common for unions and employers to resolve grievances after the commencement of the arbitration hearing, often at the instigation of the arbitration board. It is a truism of labour relations that such settlements are to be encouraged and are much 18 preferable to an arbitrated result. If the submissions I. advanced on behalf of Mr, Thachuk are'correct ~t would :: '- result in the extraordinary situation that a" ~io~'and" emploYer.would be unable to resolve.grievances-'6nce a hearing has commenced and they could' be com~0]'led t'o litigate when a dispute between' them no 16ng~r'existS'.3 " In the Francis case, the Board adjourned the'hearing ·" '" sin.__~ di~o as there was a complaint 'pursuant to s. 30 of the Act pending against the union. before" th( Tribunal.~'?'simii~"~'~ circumstances do not arise in this instance and there was no submission from counsel for the M~. 'Thachuk to..the? effect that an adjou.rnment~sine' die~wo~ld2beC.~e~,~,', .~,,.~-i:k- appropriate dis~Dosition in this case if the 'a'rgu~e'nts advanced on behalf of Mr. Thachuk were:unsuccessful. Given our conclusion that we have .no jurisdietion._to proceed with the hearing given the withdrawal'Of the griev~'~ce~ it~i~ '~ our view that the appropriate disposition of this ma~ter is a declaration that .these· proceedings'~:are .terminated.'- As noted at the outset of this decision, the Board heard'submissions from counsel with respect to matters that have relevance only if the Board concluded' that the matter would proceed. Given our conclusion that the Board does not have jurisdiction to continue with the hearing in this matter, there is no reason for us to address these matters. In the result, it is our conclusion that as the grievances have been withdrawn by the Union, this Board does not have jurisdiction to continue with the hearing in this matter. As an intervener in this proceeding, Mr. Thachuk is not entitled to compel the Union and the Employer to proceed with the hearing. Accordingly, these proceedings are hereby terminated. Dated at Toronto, this3rd day of S.e~ember, 1991 S. L. Stewart - Vice-Chairperson Carruthers - Member ~. Montrose - Member