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HomeMy WebLinkAbout1990-0037.Chiasson.91-03-18 .'~ '.o -;:;; I I i 1, ONTARIO EMPLOYÉS DE LA COUAONNE 1\,: \ '¡ CROWN EMPLOYEES DEL'ONTARIO II II GRIEVANCE CPMMISSION DE SETTLEMENT REGLEMENT BOARD DES GRIEFS 180 Q/JNDAS STREET WEST, SUITE 2100, TORONTO, ONTARIO. M5G lZ8 TELEPHONEITÈLÉPHONE, 1416) 326-1388 180, RUE DUNDAS OUEST, BUREAU 2100, TORONTO (ONTARIO). M5G lZ8 FACSIMIL!:ITÉLÉCOPIE; (416) 326- 1396 ( I 0037/90, 0048/90, . 0049/90 t I IN THE MATTER OF AN ARBITRATION Onder THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD .BETWEEN . OPSEU (Chiasson) I Grievor ¡ - and - The Crown in Right of Ontario (Ministry of Community & social Services) , Employer BEFORE: J. Sammuels Vice-Chairperson : T. Browes-Bugden Member C. Linton Member I r \ FOR THE K. Whitaker GRIEVOR Counsel Ryder, Whitaker, Wright & : I Chapman ; Barristers & Solicitors FOR THE S. White i EMPLOYER Counsel . Legal Services Branch Ministry of community & ! Social Services I ! HE~RING: October 9, 1990 I \ ¡ I '''' ~ 2 At the hearing into this matter, after a morning of testimony, the parties reached a settlement of four grievances filed by Ms. Chaisson, two on January 24,1990, and two on January 31, 1990. This Board was asked to record the settlement as an Order, and we are pleased to do so. The agreed terms are: 1. The grievor withdraws all four grievances. 2. The Ministry agrees to reduce the discipline to a letter of reprimand from the two-day suspension. The letter of reprimand is attached as Exhibit II A" . 3. The Ministry agrees to pay the grievor two days' pay at the rate applicable in January 1990. Payment shall be made within sixty days of the date of the Minutes of Settlement. (N ote: The Minutes of Settlement were signed on October 9, 1990.) 4. This'settlement is without precedent or prejudice to any other matter or any other issue in dispute between the parties. ~ - ~ ( \... ~~'. 3 5. The parties agree to request the Grievance Settlement Board to make these Minutes of Settlement an Order of the Board. Done at London, Ontario, this 3rd day of December , 1990. ~< )j_---ß ~ ~ amuels, Vice-Chairperson 's~f!~~r~ . I [ ~~~ ! C. Linton, Member ~'W v\J1111 I iUIlllY cU lu- V"{, ....c:;;. ':;¡'V\..lcUA ~. ___ _'O_ r - - -.: .' Social Services et êommunautaires Cintario provincial Government Building , 199 Larch St., 5th Fl. ~~I b~+- "Æ ' / Sudbury, Ontario P3E 5P9 . . .p- (705) 675-4515 ' . ., , " January 26, 1990 - Mrs. Diana Chiasson ' - ~ -..,..: . 1009 Chapman Street ' :" ~ I . '.. Sudbury, Ontario P3A 1V? ," '.. Dear Mrs. Chiasson: I , On January 23, 1990, you refused to comply with three '¡ direct ins'tructions from an Income Maintenance Supervisor and, subsequent to that, two direct requests Direct Services Manager. - '·1 J This constitutes non-compliance with Section 4 of the ~. . ~ fStandards of C9nduct dated 1983.' . .-_. FOIl ~ ~ 'd.,· ~-~~. ~ -F<>r your inc u "0,.<1 i na tion, you are "i...... pend~J. ~ q; .: -:'--, ..-~.:; ..- t\lO (2) "daytJ \<Ii t:hou't pay. Thia 9uapausiof), will bo - . ~ ". .... ,. _scrveJ. from JAnUS,.y ?9, 1990 to Jllfluary 30, 199Q. x-- , 1 . I. .... ,J nc_UCl.-ve-:- .~ ~~ ' , . ~ny further misconduct will result in further disciplinary action which may include dismissal. Yours truly, I . . .~, ft . Samborski .~ ,J .I .,' ,f Direct Services Manager . > PS/af C.C. Human Resources File I , ,# o~'n 101 'RR' \- / ' - I 7 00''''. "'"', S."", Fonction pUblJQue de ' OntarIo ri . Labour . Tribunal administratif Relations des relations TribunaJ de travail 180 Dundas Street West, Suite 2100, Toronto. Ontario. MSG 1Z8 T etephone/Télllphone: 4161326-1388 lBD. rue Dundas ouest, Bureau 2100, Taronto (Ontario] M5G 1Z6 Facslmlle/Télècople ; 416/326-\396 T/OO40/90 CROWN BMP~YEE8 OOLLBCTIVB BARG~INING A~T~ R.B.a. 19@O. C.l08 ONTARIO PUBLIC SERVICB LABOUR RELATIONS TRIBUNAL Between ontario Public Service Employees Union Complainant - and - The Crown in Right of Ontario , (Ministry of Transportation) Respondents BEFORE: D. Stanley vice-Chairperson M. Sullivan Member C. Boett cher Member 'FOR TBB K. Whitaker COMPLAINA!tT: Counsel Ryder, Whitaker, wright & , Chapman , . Barristers & Solicitors FOR TJœ c. Peterson RESPOHDE1f.r: Counsel Winkler, Filion & Wakely Barristers & Solicitors HEARING z February a, 1991 I -. . ~, !:.: " , \ I I - This is a complaint brought under s.32 of the Crown Employees Collective Bargaining Act (CECBA), by the Ontario Public Service Employees Union' (OPSEU) on b~half of Dave Johnson, an employee in the Ministry of Transportation. The complaint alleges violations of s. 29 (1), and (2) clauses (a) and, (c), sections which read as follows: 29(1) No person who is acting on behalf of the employer shall participate in or interfere with the selection, formation or administration of an employee organization or the representation of employees by such an orgamzation. but nothing in this section shall be deemed to deprive the employer or any person acting on behalf of the employer of hIS freedom to express his Views so long as he does not use coercion, intimidation, threats, promises or undue influence. (2) The employer or any person acting on behalf of the employer shall not, . (a) refuse to ~mploy or to continue to employ or ,discriminate .~~y,;~<:1 any fcerson WIth regard to employment or to any term or condmoE 'emp oyment because the person is exerc~sing any right ~nder this Act or IS not a member of an employee organizatIOn: . . . ~) seek by intimidation, by threat of dismissal or by any other kind of t teat or by the imposition of a pecuniary or any other penalty or by any other means to compel an employee to become or refralß from becoming or· to continue or to cease to be a member of an e~loyee organizatlOn, or to refrain from exercising any other right un er this Act; or . " . . . ___ .0- _._.~. ~ . ~ -'. , E~ , - 2 ¡l - , The ,complaint was received by the· Tribunal on November 7, 1990. On November 14, 1990 the Tribunal sent notices to the parties advising'that the matter , would b~ heard on February 8, 1991. The facts relied on by the Complainant are set out in an appendix to the complaint. They are quite straight forwar~. Johnsòn alleges that in October 1990 he submitted a'Doctors certificate to cover a four week absence due to illness the next day the employer delívered to him a written request for further, particulars . threatening dismissal if he failed to comply. He filed a grievance with respect to this' request and ten days later he received a letter stating that his sick leave credits had . been suspended, retroactive to the day of the employers request for information. The essence of the complaint is tha( these actions constitute a threat to the grievor, as a reprisal for exercising rights under the Act and that they are discriminatory. Various remedial measures sought are set out in an appendix to the complaint. . On February 4, 1991, four days before the hearing, the Board received a reply to the complaint from counsel for the employer (a delay that can' not be' attributed to counsel). In that reply the employer denies the allegations made and puts the complainant to the strict proof of them. Counsel also contends that the , complaint fails to put forward a prima facie case and that it should be dismissed without a hearing. In the alternative counsel requests further particulars, alleging that the complaint is so vague as to preclude the employer from properly preparing , , a defense [In the reply counsel also submits that the matter ought to be deferred to the Grievance Settlement Board, where the complainant has filed a grievance: This' submission was withdrawn at the hearing without prejudice to the employer's fight to make the argument in other proceedings before this TribunaL] Upon receiving this reply, counsel for the complainant sent a letter, dated February 6, 1991, setting out their claim in more detaiL At the opening of the hearing counsel for the Employer presented argument in support of their contention that the matter ought to be dismissed without a hearing. He submitted that the complaint was: I . '~ ' . 3 ), "so bereft of any fàcts which would, on its face convince a reasonable person that a violation had taken place, and in the alternative, that the complaint is so bereft of particulars that it is impossible to defend. H On October 16, 1990 the complainant delivered a medical certificate to his supervisor. In it Doctor Dux states: "David requires time off work due to illness, will advise in 4 weeksH. There is no dispute that the Complainant was entitled to sick leave under his Collective Agreement which would more than' cover a four week absence. Johnson's Supervisor, R. N. Gaunt, in consultation with others in management, concluded that the ceftificate was not sufficient to cover a four week absence and the next day, October 17, he sent a letter to the Complainant as follows: We are in receipt of your medical certificate dated Oètober 16~ 1990 from Dr. Dux. We have -had an opportunity to review the certificate and r~retfully, it does not provide us with sufficient information regar mg your absence from work. ' , ' We require and request the followjng information in full: 1. The reason for ~our absence. 2. The ¡?rognosis ?r a. ~n and complete recov~ry-. . . 3. The Date on WhICh It IS expected that you 'WIll be able to resume the full time duties of your position on a regular full time basis. ' 4. Any restrictions under which you may return to work, in the event thIS is possible. Attached is a copy of your job' specifiCation and the Physical ,Demands Analysis. We require that this information be provided to me by October 26, 1990. . " ! We also must advise you that providing us with adequate, information concerning your absences from work, is essential to your cçmti~ued employment with the Ministry. If you fail t9 respond t9 this dlfectlo~ please understand that the status of your SIck leave w1l1 be reviewe again. This review may , result in the ,withdrawal of approval for sick leave with pay. . _ The complaint clearly refers to this letter as an "unwarranted request ... and threat of dismissal". In the additional pårticulars provided by letter on February 6, Counsel for the Complainant submits that the pursuit of benefits under the ' collective AgreemeI.1t is an exercise of rights under the Act and sates: . . . 4. The Union takes the position that Mr. Gaunt's response after only , I , \ i - .. / ~! . 4 ¡ 1 orie. dar of absence was an act of intimidation and coercion designed to compe Mr. Johnson to cease or refrain from continuing to exercise his rights under the Crown Employees Collective Bargaimng Act. . 5. The requests for information by Mr. Gaunt in his letter of October 17, 1990, were inconsistent with' the ¡ existing practice in the" Office Services Section. The Rractice within the section would not be to request the type of detal ed information required in Mr. Gaunt's letter after only one day of absence. I 6. On October 19, 1990, Mr. David Johnson filed a grievance contestinî the request for information made ¡nMr. Gaunt's letter of October 7, 1990. In doing so, Mr. Johnson was exercisi~ his rights under both the Crown Employees Collective Baršaining ct and the· collective agreement between the Ministry and OP EU. ,. 7. On October 30, 1990, Mr. Johnson received a second letter from Mr. Gaunt stating that his sick credits had been suspended effective· , October 29, 1990. The Union takes the position that thlS is a second act of coercion and intimidation designed to compel Mr. Johnson to refrain from exercising his r~hts under, bo~h the Crown Employees Collective BalWini{1 A.ct an 'the Collective Agreement between the Ministry and SE. Further~ the union takes the position that this act of repnsal is a direct result of Mr. Johnson's attempts to obtain his short term sickness entitlement under the Collective A~eement and the exercise of his right to file a grievance with respect to Mr. Gaunt's letter of October 17, 1990. : ' I 8. The uniòn takes the position that Mr. Gaunt's res~onse of October 30, 1990, is inconsistent with the exis1ing practice in t e office services section of the Ministry. . 9. The 'union' alleges that the reguest for information and the imæositi(;)fl of a suspension by M~. Gaunt in the circumstances of¥r. Jo nson s case represented a marked departure from the eXlstmg practice within the Office Services Section of the Ministry. Further, there can be no explanation for this: departure from existing practiç~ other than that these acts amount to attempts to coerce and mtimidat, Mr. Johnson in an effort to compel him to refrain from exercising his rights under both the Crown Employ.ee, Collective Bargaining Act and tlie Collective Agreement in existence between the Mimstry and OPSEU. - :' , First of all counsel for the Employer, argued thai no rights under the Act are infringed by Gaunt in sending the first lettér as no grievance had been filed at that point, and that there is no threat in the letter. I The Act, in section 21, provides as follows: ,21. -(I) A colle~tive agreement is, ,subject to and for the purposes of I I ¡ ~f .' 5 \ this Act, bindin~ upon the employer, upon the employee organi¡ation that is a party t ereto and upon the employees in the bargaming unit I covered oy tlie agreement. ,.' , , , Collective agreements are enforceable at law only by virtue of statute. When an employee seeks entitlement to a benefit under the collective agreement he is exercising a right which springs from his right under CECBA to bargain collectively, and the above section which binds the employer to the bargain. It is this section which makes the employer obligated to the employee in law to adhere to the terms of the agreement. Section 29 (2)(c) is clearly intended to prohibit the, employer from interfering with an employee exercising all 'rights under the Act. That includes the right to seek benefits bargained for and set out in collective agreements. ,The Complainant alleges that the letter from Gaunt was an act of intimidation, and that it included a threat of dismissal. Whether it amounts to an' ,improper act of intimidation or a request management is entitled to make in the circumstances, is an issue the Tribunal will have to decide after hearing the evidence. However, there is no denying that the reference in the lette¡ compliance with the direction being "essential to your continued employment with the Ministry~' is a threat to the Complainant's continued employment. Nothing could be more clear. C;ounsel interprets this as sjmply, "telling the complainant what we are intending to do". Further that taking away the sick leave after the filing of the grievance was not intended to intimidate or coerce but was s~ply, "doing what we said we were going to do". Counsel for the Employer argues that the complaint of discrimination is vague and, that without further particulars they' are not in a positiÓn to be able to mount a defense. Although the nature of the discrimination alleged in the complaint may have . been unclear the statelD;ent of particulars supplied by counsel for the complainant makes it very clear what the allegation is. The complainant is that this treatment is inconsistent with the existing practice~ Surely the employer knows what the existing practice is, and if they dispute the fact that Johnson has been treated any dìffer€mt~y can defend the allegation. If counsel for the complainant intends to introduce evidence of the treatment of any particular employees, to demonstrate what they · \ - .----"-"'-- --- I I I ~. - ,,,", 6 I allege to be the policy or practice, counsel for the Employer is entitled to ,notice so , that they might familiarize themselves with the records The detail required in a complaiht is set out in 5.31.-(1) of Regulation 233 'under CECBA. The' Board is satisfied that the Complainant has met those requirements in drafting their complaint. Counsel for the Employer argues that "complaint is bereft of any fact~ which would on its face convin~e a reasonable person that a violation has taken place". That may be the test the complainant must meet at the end of the day-after aU the evidence is heard. We do not have to be convinced, on reading the complaint, that a violation has taken place in order to grant the complainant the Tight to a hearing.. The complaint simply has to disclose a cause of action. There is no basis for dismissing this complaint without a hearing and the Tribunal is ot the view that there is no reason for the employer to have been' unprepared.to deal with the merits of the complaint on the day set for ,the hearing. ,DATED THIS 18th DAY , ~ .,