HomeMy WebLinkAbout1992-1290.Chamaillard.96-03-05
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ONTARIO EMPLOYES DE LA COUF.iONNE ~.
CROWN EMPLOYEES DE L'ONTARIO ~I~/
II GRIEVANCE COMMISSION DE
. II SETTLEMENT REGI-EMENT 1)\":>
BOARD .DES GRIEFS
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180 DUNDAS STREET WEST, SUITE 2100, TORONTO ON M5G lZ8 TELEPHONE/TELEPHONE (416) 326-1388
180, RlJ.E DUNDAS OUEST, BUREAU 2100, TORONTO (ON) M5G lZ8 FACS{MII,.EiTELECOPIE. (416) 326-1396
GS~ # 1290/92
OPSEU # 92E707
IN. THE MATTER OF AN.,. ARBJ:TRA',l'ION
Onder
~HE CROWN EMPLOYEES COLLECTIVE, BARGAIN~NG ACT
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, Before
THE, GRIEVANCE SETTLEMENT BOARD
BETWEEN
OPSEU (Chamailla:td) Grievor
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- JThe Crown in Right of ontario
(Mlnistr~ of the Attorney Gener~~)
Employer
M. Watters Vice-Chairperson ~
BEFORE
M. Lyons Member i
F c6l'lict Member
FOR THE R. Blair
GRIEVOR CounsE!'l
Ryder,' Wright, Blair & Doyle
Barristers~&Solicitors
FOR THE M. Fl~ishman
EMPLOYER .Counsel
Crown iLaw Office civil
Mi~istry of the Attorney General
HEARING November 22, 1995
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The grievor commenced her employment as a freelance, ol~fee for
service, COLIl~ t Moni t Ol~ in the F'l~ ov i n'c i cd COl.lr t , General Division, in
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Kingston, Ontario in August 1990. By letter. of June 15, 1992'" the gr i evor
was advised that her court repol~ting services would no longer be required.
The material part of the letter of Mr. R Beaudoin, Regi onal Director,
East Region, Courts Ad~inistr.tion, read,s:
"This letter is to advise you that effective today, YOLlr court
reporting services are no longer required by the Ministry of
the Attorney General in the county of Fl~ontenac .
Due to other commitments resulting from a recent dispute settlement,
regular court reporting work is no longer available to you.
Notwithstanding this and more significantly, in the Breen et al
hearing on June 10th, 1992, you testified under oath that you
removed docL\ments from~court f i 1 es and provi ded them to a
third party for use unrelated to your business or to the
business of the Ministry. As you yoursel~ acknowle<<;Sged, this
is highly improper. Had you been a civil servant, you would
be facing severe disciplinary sanctions not excluding dismissal
~or what must be-considered a senious breach of office secrecy
and the unauthorized removal of court documents.1I
(e\llphasi sours)
A grievance dated June 30, 1992 was subsequently filed The grievor
\ alleged therein that she had been' dismissed without just cause She
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asJ~ed , inter aU a, to be reinstated to the full duties of her former
position and to be reimbursed for any and all losses occasioned by the
Employer s actions.
By decision dated September\21, 19Cjl3, another panel of the Grievance
Set t 1 ement Beal~ d f.oun d that it possessed the requisite jurisdiction to
determine whether the gr i evol~ ~Jas an employee within the meaning of
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section l( 1) (f) (vi) of the I;row.!J... EmEl eyee!:> Collective Barqaininq Act.
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This present panel of the Boal~d in a decision dated October 24, 1995 (Mr
F Collic:t dissenting) found that the grievor worked as a freelance Court
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Mon i tor on a regul ar and cont i nui rig basis ovel~ the period of her
employment in the Generai Division and~ as a tonsequence, fell within the
rje.fi ni ti on of "employ~e" under section 1(1) (.f) of the aforementioned
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st.:\tute The majol~i ty, thereft;lre, concluded that the gri evol~ had the
status to grieve the ~mployer's actions as contained in Mr. Beaudoin s
letter of June 15, 1992.
The Board reconvened on November 22,;" 1995. At that ti me, cOLlnsel for
the Employer indicated that, should we proceed to the merits of the
di spLlte, he would rely primarily o~ -' 1;he .gri evor ~ "preach of trust" in
support of the action taken. H~~ stated that "the recent di spLlte
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set:tlemeht~" reference~in the second paragraph of Mr. Beaudoin's lettl:!r,
would not, in and of itself, .have compl etel y el i mi !')ate1:l t,he need for the
grievor'p services.. Counsel advised, rather~ that her place on the iist
of eligible court, reporters would have gone qown one (1 ) notch S\nc:l that
this woul d h.ave resulted in ~ "marked I~educti on" in the number qf heJ~
assignments
The Employer advanced a further preliminary iqpjection at t,he heal~ing
of November 22, 1995~ Counsel for the Employer characterized the
substance .of the di spu-t::e as "a failLlre t.o assigfl work" to the gJ~i evor It
was his submission, simply stated that this Board lacks j I.lr i sd i ct ion to
adjudicate s~ch an issue. In thi s regard, reference was made to section
18(1) of the Crown Employees Collective Baroainina Act, as it the!') read.
That provision states:
18 -(1) Every collective agreement shall be deemed to provide
that it is the e}clusive function of the employer to
manage, which function, without limiting the genera~ity
of the foregoing, includes the right to determine,.
( a) employment, appointment, compI ement, organization,
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assi gnmel"lt ~ disc;ipline~ dis!llissal~ suspension~ work
methods and procedures~ kinds and locations of
eqLd pment and classification of positions; .
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and such matters will not be the ~ubje~t of collective
bargaining nor come within the jurisdiction of a board.
COLin se 1 ar'gued th~t the failure to as~ign work falls within the scope of
the Emp I oyF.>,J'" s exclusiv~ right to determine matter~ relatin~ to employment
and assignment. He asser.ted that~ accordingly~ there was no b.:\si s or
foundation for the instant gl'"i evance
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COlln se I for the Employel'" also focused on the nature of the gri evor' s
employment over the period .fl"'om August~ 199C> to JLlne~ lQ92. More
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specifically, he alluded to the following (1) the grievor was called in
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on an "as required" basis; (i 1) her hours varied from between three (3)
and forty (4(1) bours per week; (iii) she i-ias not SLlbj ect to a written
contract; and (i v) th~re wa~ no minimum number of hours ~hich th. grie~or
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was e>:pected ! to work Counsel submitted that the circumstances in this
case are analogous to those e~dsting in Whelan, 1152/86 (Kennedy). In
that case, t.he grievor worked as a COLlr t Registrar pursuant to a contract
which pl"'ovi ded for a maximum number of hours of work. TI"le contract also
provided that she would be employed on an lias required basis" The
grievor in Whelan was charged with posE;;essi on of property of a V.::'ll LIe
exceeding $1 (lOO 00 knowing that the property was obtained by the
commission of an indictable offence, contrary to the Criminal Code. It is
clear, on the facts~ that the gr i evol'" "'Jor ked in the specific court that
was seized with hearing the offence. Subsequent to bei ng .charged ~ the
-grievor was advised that she would not be ca.ll ed in to work while the
matter was ~ending. A grievance was th'en filed As here, the Employer
argL\ed that the Grievance Settlement Board did not have j LlI'" i s<;:l i c t i on to
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revi (~w the management decision not to c.:.".\11 the gJ~i.evoJ~ into WOJ'.~ The
Boal~ d accepted that argLlment in di !:i.mi, ssi ng the grievance In thi s r'egc:i1~d~
the awan;:1 states at: pC":\ge 7 ~
"It i s OLIr" decision in this c~se that the position of the
Employer must pr'eva~ 1 The threshold issue is whether there
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is any obligation upon the Emp 1 oyel~ to assign work to the
GI~ievor; ,and:, hased em the speci f i c contractual relationship
between them, t h el~ e is not. The contractLlal al'"'l~rangement i~:; that
the Gri. evor i~ employed on an 'as re~uired basis'. and. the
only referenc:~ to the number of hOLlrs of work is that it shall
be for a ma ~. mum of 1, (.>00. _ It is our vi ew that .the assigni ng
of work to a contract employee wherein the employee
specifically agr.ees that .employment is on an 'as requi.red basis'
is a management discretion not reviewable by this Board."
We wer,e asked by counsel for the Employer to accept this reasonin~ and
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to come to an identical reSLll t.
Lastly, coul"lsel for the Em~loyer submitted that the pre~ent di spl-Ite
was also analogOl-ls to a situation involving the non-renewal bf an
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unclassified contract He noted that in the latter event, by
virtue of the interpretation placed on the Public Service Act, has no
jl-lrisdlction to I~evi ew the non-renewal. COLlnsel assel-ted tl1at the same
approach.shoul d be taken here given the prohibition contained in section
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18 (1) of the CI-own Eml?loyees Collective Barqainino Act.
The Union, -
in response, contested the Employer s characterization of
the i SSW? COL~n se I suggested tr',at any dismissal could be fJ-amed as a
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deci si. on not to assign \{.JOI~~ He sLlbmi t ted that an acceptance of this
description could deprive a dismissed employee of the right to chall enge
the Employer action for jLlst caLIse In sLlmmary, it was his submission
that mere characterization should not remove this Board s jurisdiction to
i nqui r'e i nto whethel~ just caLIse e ists for disciplire
It was the position o.f the Uni on thc:~t, on the facts 01: this case, the
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griever had been dismissed. Coun sel stressed that ,. Llnl i ke the si tLlat i qn
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in ~h e I "ill.~ the gl~ievol~ ~; emp I oyment came to an end in centl~ast tC.l being
sL\spended for a t.emporary period Additionally, he noted that the
Employer acknowledged it acted primarily because of a perceived bl~eac:h of
trust on the pal'-t. of i I"ls Chamai 11 al~d Reference was made to' the thi rd
paragraph of Mr. BeaLldoi n s letter and, parti cuI arl y~- te the part thereof i
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which we have reproduced in bold type Counser argued it was clear
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therefrom that the Emp-loyer considered the grieVbr had co~mitted a ser i OLIS
offence I
which mel"'i ted substantial discipline, not exc~Llding dismissal
Indeed, he ~?Llgges.ted that the Emp 1 oyel~ .WOLll d have formally imposed
discipline at ~he time but for its mistaken belief this was unnecessary as
the grievor was not an employee COLlnsel sL\bmi tted that our eal~ 1 i el'"
finding, to the effect the 9."'i evor was an employee under the Crown
Employees Collective Baroainino Act~ now entitles her to challenge the
dismissal through arbitration before this Board. Put another way, it was
his submission that we possessed the jurisdiction necessary to address the
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COLlnsel for the UniQn noted that the Grievance Settlement Board, in
nLlmerOLlS instances. has assumed jurisdiction in order to determine whether
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an unclassified employee was either released or discharged. He indicated
that in cases, such as 0 Hara, 1596/84 (Vel"'ity), the Board has proceeded
to isolate an appropriate remedy in the event of a finditlg of un j List
discharge COLlnsel asserted that, in the circumstances of this dispute,
the grievor S work pattern should not determine the issue Rathel~ , he
argued that the nLlmbe,'" of hours the grievor would have wor I. ed, bLlt f Ol~ the
Emp I oyel'" s actions, WOLII d have to be addressed as a remedial
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cOl'1!::.ider'ation.
The Board~ a"" stated pre~iou51y, has fClund the gl~i evol~ to be an
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employee f Ol~ purposes of the Crown Emp 1 oyeefs Colle~tive Barqai~ina Act
Given this statLls, it foIl ows that she is entitled to the benef i 't o'f
sections 18(2) and 19 ( 1) 0'*: that Act These provisions read
18 -(2) In addition to any other rights of griev~nce under
a cpllective agreement~ .an employee claiming,
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(c) that he has been .di scri-pl i ned or dismissed or
( suspended from his employment wi thout jLlst caLIse,
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may process such matter in accordance with the
grievance prpcedure provided ~n the collective
agreement, and failing final determination under
such procedl.lre, the matter may ~e proc~ssed in
accordance with the procedure for final
determination applicable under section 19.
19 -(1) Every colI ~cti veagreement .sha.1l be deemed to pr,ovide
that in the event the parties are unable to effect a
settl ement ,pfany di fferences between them, ari s~ng from
'the i nterpreta'ti on, application, administration or
a+leged contr~vention of the agreement, i~cluding any
question as to whether a matter is arbitrable, SLlch
matter may be referred fpr arb.itration to the Grievance r
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 ~pon the parties
and the employees covered by the agreement. 1
The abOVE' sec:ti ons, when ,'"ead together, permit an employee, who claims
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he/s;;he has been dismissed without just c:aLlse~ tti process su~h complaint to
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the Grievance Settlement BOclrd for final and binding resolution. It is
clear tl,e,'"efrom that the Board also t-Ias the jurisdiction to detel'"mi ne
v~hethel" the matter is arbi tra.bl e.
There is no dOl.lbt, on the f ac t s ~ that the Employer stopped assigning
WOI'.~ to the grievor as of June 15, 1992. The Board accepts that,
generally, the Employer has the. exclusive management right to employ~
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appoint and assign. However~ we have not been per'suaded that this case
c,::.\n be r€~sol ved ~ at. thi s g,tage~ oil the baf.>i. s of section 18(1) of the Cl~own
Emn1 evees .CollE.'ct i ve Bar-Qai ni 'lfL-Ac;t ~ WeLthink that regard must be had to
the reasons or gr"oLmds for the Employer s I~esponse in thi s instance It
is clear f I" om Mr'. Beaudoi rl s letter that the Employer viewed the griever s
conduct as "highly improper ". He described her actions as consti~uting "a
serioLlS breach of office secrecy and the unauthorized removal of court
documents" It is further apparent that l'1r. BeaL\doi n believed the
grievor s conduct amounted to a disciplinable offence He stated in his
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letter that, if the gl"i evor- was a civil servant, sne would be facing
"severe disciplinary sanc:tions not e>: c Iud i ng di smi ssal" . We note that the
Employer has c:l al"i f i ed its intent to primarily rely on the above-desc:ribed
conduct to support its' dec1 s1 on if the matter proceeds on the merits In
the jddgment of the Board, this factual conte>: t is ll}ore al in to a
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dismissal for alleged impropriety than to a decision not to assign work
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for legitim~te operational reasons. that in these circumstances
the grievor, as an employee, is entitled to proceed wi th her complaint
that she was dismissed without just caLIse. In the final analysis, the
Board is disinclined to abrogate the rights accorded by section 18(2) of
the Crown Employees Col}ective Baroainind Act
Additionally~ the Board is s~tisfied that the decision in Whelan is
di sti ngL\i shabl e. In that case~ the Employer e:,:er.c:i sed its di sCI"eti on not
to assign work to the grievor for a temporary period while the charges
were pending The reason for taking this action was Lmrel ated tol a
( complaint aboL\t work performance F\ather, the dec:ision was taken
primarily because the grievor had a fiduciary relationship, thrOL\gh her-
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em,:)"! Dyment., with the ve'~y cou,""t t 1-'...:\ t wOI.J,ld hear'. the thc\I'"'ge against tier
H~?I~e , the Employer' el'ette,d to st'op i:;lE5Si qni nl;l wOI~k to Ms Chamai 11 i:.,I~d!, on j,
pe'~mc\l'lent basis, becaL\se of condLlct occur'r i.ng in the COL\rSE' of her
I employment wh,ich it consi'deni!d wl"'ong'fLrl. We find the f C:ictua'l
I ci I~cumstances i.n the two (2) 't'ases to be mc.iterialLy d'iffel~ent It is
I c1e.::\r of l~'om a I""eadihg- o't: Wh eJ~.Q, that the l~eE;)L\l t Wc:I=:' pn:'mi <:;;ed!l in 11:':\rg(:-
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I pal""t!. on the natLlI""e of~ the con t r'ac tLl.al I~'el at i dnshi p' More s~ecific:ally,
there, the gl"'i eVOI""Wii:\S hired' under c ont I......\(: t 'fal"" a me\} i mLlln nL\fnbel~ of hC:lurs -
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Further, she c a IT ed in "as-reqLli red" In this instance,
i was on an ba5is
I ather than for the .evi.dence led the iast. ~~eli~inary objection, there
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I is very little evidence before LIS vis a vis this g,""i ev'or S statLls,
I contI" actLlal OJ!"' othewwi sa Most of the evidence the Boc\rd has heard to
date relates to the nature and frequency of her assignments We do know,
however, that she-was also c~lled in as requi l""ed In OLII"" jLldgment, the
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panel in Whelan COL\I,d properly dispose of the issLle before i, t on the basis
of the contl""'act.L1al l""el ati onst11 p thel""e in place We do not thi n~ the same
thing c ':\1'1 be said here 8i mp1 y stated, the Board does not agree the
Emp f'oyel"" can cl. ar acter ize, what is in fact, discipline as a simple non-
c.~ssi gnment of wor'~ <:\nd thereby avo d the gri evol"" s right, as an employee,
to challenge both the validity and seve,"" i t y of the I~ esp on se The BOii:\I""d
has already ~onsidered the "as ,""equired" component of the g,""i evor s job in
deciding theqLlest i on of her status vJe do not view thi s aspr'?ct of he,""
employment to be detel~mi nat i ve of the present issue. The aforementiohed
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component may have to be '''"evi.si ted in respect of ttle i SSLle of I""emedy in
the event we find thC1,t she was unjustly dismissed
In sUlT)mary, the Board concl ude.s that the contested response was
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premised an conduct, an the part of t.he gl~ i evol~.~ which the Emp loyer'
considered to be both wrongful and ~isciplinable On the facts befol~e us,
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we find the situation to be c 1 osel~ to a discharge for' alleged wrongful
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conduct than to a dec i si on not to, assil.i1n wprk for operation91 reas'?!1s. It
follows~ in our judgment~ that the gl~i evor shoul d be enti tied to cha11 enge
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the Employer s action pursuant to sections 18(2) and 19(1) of th e CI~ o.!:1Q.
Employees Collective Barbainino Act. ~ Ultimately, the Board is - satisfied
that it has the requisite jurisdiction to embark on this enqLtil~Y. The
matter is, accordingly, to be scheduled for a he~ring on the merits.
J 'rn oJ..:J
Dated at Windsor, Qntario this 5th day of MA~c~, 1996 .
f'r{) V W~':1
M V. Wattel~s, Chairperson
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M. Lyons, Member
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F. Collic:t, Member