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HomeMy WebLinkAbout1991-2669.Adamson.92-11-03 ONTARIO EMPLOY~-S DE LA COURONNE CROWN EMPLOYEES DE L 'ONTA RiO GRIEVANCE C,OMMISSlON DE SETTLEMENT REGLEMENT! BOARD DES GRIEFS 180 DUNDAS STREET WEST, SUITE2100, TORONTO, ONTARIO. MSG IZ$ TELEPHONE/TELEPHONE.. (4~6; 325 180,~UE DUNDAS OUEST, BUREAU 2~00, TORONTO (ONTARIO), M5G iZ8 FACSI~ILE,'TEL~COPiE - (4 ~$t 325-~396 ;~ 2669/91 IN THE MATTER OF AN ARBITRATION ~n~er THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE'S~TTLEM~NT BOARD BETWEEN : OPS~U (Adamson) ~rievor - and- The Crown in Right of Ontario (Ministry of Correctional Services) .E~ployer BEFORE: J. Roberts Vice-Chairperso~ T. Browes-Bugden Member , F. Collict Member FOR THE M. McFadden UNION Counsel Koskie & Minsky Barristers & Solicitors FOR THE A. Pruchnicki EMPLOYER Grievance Administration Officer Ministry of Correctional Services HEARING July '23, 1992 September 2, 1992 ? 1 INTERIM AWARD At the outset of the hearing in this matter, the Ministry objected to jurisdiction and requested an interim award before the Board proceeded to hear any evidence touching the merits of the grievance. We granted this request. The parties thereupon stipulated to certain facts, solely for purposes of placing in context the preliminary objection. Both parties agreed that the stipulated facts would not run to the hearing upon the merits of the case, should the Board decide that it does, in fact, have jurisdiction. For reasons which follows, the Board concludes that it does have jurisdiction to entertain the merits of the grievance herein, and accordingly, the prel'iminary objection is dismissed. The stipulated facts were as follows: The grievor, Ms. C. Adamson, is a Correctional Officer at the Maplehurst Correctional Centre in Milton. At this facility, management has in place an attendance review programme. This is a 4-step progressive programme, with a host of non-disciplinary management interventions occurring at the 4th step. By June, 1991, the grievor had already reached the 3rd step in this programme. It appeared to her to be a virtual certainty that 2 she would soon progress to the 4th step. In July, 1991, she filed the grievance leading to the present arbitration. The reason why the grievor grieved was that many of her absences resulted from causes that were gender-specific. In her view, it was unfair and discriminatory to include these absences within her total number of absences for purposes of progressing her through the various steps of the attendance review programme. The specific Article of the Collective Agreement that was said to have been breached by the Ministry was Article A.1, which reads as follows: A.1 There shall be no discrimination practised by reason of race,, ancestry, place or origin, colour, ethnic origin, citizenship, creed, sex, sexual orientation, age, marital status, family status, or handicap, as defined in section 9(1) of the Ontario Human Rights Code (OHRC). Counsel for the Union advised us that the sUbmission of the Union upon the merits would be that this provision was breached by the Ministry because including gender-specifiC absences within the total number of absences for purposes of the~attendance review programme constituted "adverse effect,, discrimination on the basis of the sex of the grievor. In support of the Ministry's preliminary objection to jurisdiction, however, it was submitted that .Article A.1 of the Collective Agreement, above, was not applicable in the 3 circumstances of this case. In the submission of the Ministry, Article A.1 solely referred to discrimination practised by management in the administration of other provisions of the Collective Agreement. In this sense, it was submitted, Article Aol of the Collective Agreement merely defined what kinds of discrimination were forbidden in the administration of the Collective Agreement. It did not stand alone as an Article of the Collective Agreement, the breach of which was capable of giving rise to a valid grievance. In the course of these submissions, we were not referred to any negotiating history or prior authority that could assist us in determining whether Article A.1 of the Collective Agreement ought to be interpreted in the restrictive sense suggested in the submissions on behalf of the Ministry. The authorities submitted on behalf of the Ministry and, for that matter, on behalf of the Union and the grievor, generally (1) addressed the scope of review of the exercise of an exclusive management right; and, (2) whether Article 52.1 (3) of the Collective Agreement, addressing certain procedural matters relating to attendance review meetings, might or might not constitute a sufficient jurisdictional hook to enable the Board to assert jurisdiction of the merits of the grievor's claim should the Board accept management's narrow interpretation of Article A.1 of the Collective Agreement. See, e.g., Re Drew and Ministry of Correctional Services (1989), G.S.B. #331/89 (Slone); Re Whitehead and Ministry of National Resources (1982), G.S.B. 4 ~198/82 et se~ (Roberts); Re G.S.B. Mills (1989), G.S.B. #112/88 (Low). The Union submitted one case under Article A.1, Re Ministry of Government Services and Ontario Public Service Employees' Union. (Kim~el/Leaf) (1991), 21 L.A.C. 4th 129 (Kaplan); however, in that case, there was no preliminary objection based upon the narrow interpretation of Article A.1 for which the Ministry has contended here. In a very real sense, then, we are presented with a case of first impression. Having considered at length the wording of Article A.1 of the Collective Agreement in light of the usual rules of construction of contractual provisions, we conclude thatthe preliminary objection to jurisdiction must be dismissed. There does not appear to be any basis for reading into this provision the limitations suggested by the Ministry. Article A.1 does not say "There shall be no discrimination practised in the administration of other provisions of this Collective Agreement by' reason of [the prohibited grounds]; it states, "There shall be no discrimination practised by reason of [the prohibited grounds]." It makes a blanket statement, and there does not appear to be any rule of construction that would cause us to conclude that it says less than what it purports to say. 5 Moreover, Article A.1 is not merely definitional in nature; it does not begin with words such as "Discrimination is defined as." It is directory in nature, stating that "There shall be no discrimination". Accordingly, we are led to conclude that Article A.1 of the Collective Agreement stands on its own and any breach of its provisions is capable of forming the basis of a valid grievance. The preliminary objection cannot be sustained and must be dismissed. DATED at London, Ontario, this 3rd day of November, 1992.