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HomeMy WebLinkAbout1992-1685.Pitirri.93-05-03 -..;/' ONTARIO EMPLOYES DE LA COURONNE CROWN EMPLOYEES DE L'ONTARIO 'f GRIEVANCE CpMMISSION DE 1111 SETTLEMENT REGLEMENT BOARD DES GRIEFS 180 DUNDAS STREET WEST SUITE2100 TORONTO ONTARIO M5G lZ8 TELEPHONEITEU~PHONE (~6) 326-1388 180 RUE DUNDAS OUEST BUREAU 2100 TORONTO (ONTARiO) M5G lZ8 FACSIMILE ITELE~COPIE (~16) 326-1396 1685/92, 1686/92, 1687/92, 1688/92, 1689/92, l690/92, 1691/92, 1692/92, 2374/92 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN OPSEU (pitirri) Grievor - and - The Crown in Right of ontario (Ministry of Correctional services) Employer BEFORE W Kaplan Vice-Chairperson H O'Regan Member J Miles Member FOR THE P Munt-Madill GRIEVOR Counsel Ryder, Whitaker, Wright & Chapman Barristers & Solicitors FOR THE J Benedict RESPONDENT Manager, Staff Relations & Compensation Ministry of Correctional Services HEARING April 6, 1993 f .. 2 " Introduction Seven grievances dated July 8, 1992, one grievance dated July 1 3, 1992, and one grievance dated October 5, 1992 came before the Board At the request of the parties, all of these gnevances except the last were adjourned sine die In the grievance dated October 5, 1992, Joseph Pitlrrl, formerly a Correctional Officer 1 at the Hamilton-Wentworth Detention Centre, grieves that he has been unjustly dismissed from employment. At the commencement of these proceedings, Mr Benedict argued that this grievance should be dismissed by the Board for two reasons First, because the grievor was a contract employee whose contract was not renewed at its conclusion and who, therefore, had no rights to grieve And second, and more importantly, because the Board had no jurisdiction to hear his grievance Union counsel argued that the grievance was arbItrable, and that the Board must take JurisdIction with respect to It. Before proceeding to argument on this pOint, a limIted amount of eVidence was heard Union counsel objected to the introductIon of this eVidence Insofar as some of it went to the ments of the case After dIscussion with Mr Benedict and union counsel, It was agreed that the employer could present its eVidence for the purposes of ItS preltmlnary objection only After the evidence of Mr Raymond Kalnins was heard, union counsel advised the Board that the union contested that part of the eVidence which went to the ments of the case, and argued that the Board should, for the purpose of ruling on the employer's preliminary objection, assume the union's best case, which was in many material respects completely contrary to the version of events desCribed by the employer There was no objection to this from Mr Benedict, and as our reasons for decision indicate, this is the approach we have taken without, of course, reaching any conclUSions . 3 '.t whatsoever about the actual ments of the matter In dispute It IS also worth noting in these preliminary reasons for decIsion, that although the employer witness was not cross-examined, he was not cautioned by the Board, and it was agreed by the parties and the Board that should the Board take JUrisdiction with respect to this case, that Mr Benedict was fully entitled to discuss the case with Mr Kalnins pnor to him being recalled to again testify in these proceedings The EVidence As noted above, Mr Raymond Kalnins testified At the time of the gnevance he was the Senior Assistant Supenntendent of Operations at the Hamilton-Wentworth Detention Centre (hereafter the "Centre") Mr Kalnms has been with the Mmlstry of Correctional Services (hereafter the "Ministry") for thirteen years Mr Kalnrns Included among his duties supervisory responsibility for shift supervisors and correctional officers The Centre houses approximately 400 inmates servmg short sentences as well as inmates on remands In addition, there is a Young Offender Unit housing approximately forty young offenders There are , 80 classified and unclassified correctional officers on staff and they are reqUired to work shifts Most of these shifts are twelve hours long The gnevor was an unclassified employee, and Mr Kalnins testified that these unclassified employees work on an as required basIs There IS only one scheduled unclassified employee, and Mr Kalnins testified that he occupies a specialized position All the other classified employees work only when called in for duty Introduced into eVidence was a senes of employment contracts entered Into " 4 I .f between the Centre and the gnevor These contracts begin on December 4, 1989 and generally last for SIX months The gnevor's last contract began on April 1, 1992 and expired on September 30, 1992 Another contract, set to run from October 1, 1 992 to March 31, 1993 was also Introduced into eVidence Mr Kalnins testified that the gnevor refused to sign this contract On July 8, 1992, Mr Kalnins received a note from the gnevor's physician, Dr A. Greenspoon This note reads as follows liThe above named patient suffers from ulcerative colitis and requires stability and consls lency In his life to avoid flare-ups He should avoid shift work" Mr Kalnins testified that the gnevor requested that his medical needs be accommodated Between July 8, 1992 and September 23, 1992, the grievor continued to work vanous shifts as requested by the Centre Mr Kalnins testified that there was no decision to change the grievor's hours of work as further information about his medical condition was reqUired Mr Kalnins contacted Mr Barry Thomas, who was the Regional Personnel Manager As a result of that consultation, the gnevor signed a medical disclosure form that authorized Dr Greenspoon to provide medical information about the gnevor to Dr Humphnes, the Ministry's Chief Medical Practitioner Mr Kalnins next met with the gnevor on September 23, 1992 Mr Kalnins testified that he met with the grievor to advise him of the accommodation the Ministry was prepared to offer him That accommodation offer was set out In an employment contract scheduled to run from October 1, 1992 to "" March 31, 1993 The accommodation offer stated "Hours of work will continue to be assigned as requested up to 40 hours per week (on a part-time basis) However, In an effort to accommodate the employee's 5 " medical condition, the hours of work will always fall between 1 8 45 hours and 07 1 5 hours the next day" When Mr Kalnins presented this accommodation offer to the grrevor on September 23, 1992 he advised hIm that his current contract expired on September 30, 1992 and he suggested that he accept the offer and sign the new contract The gnevor then told him that he could not work night shifts In that his medical condition required him to have a "regular type of life" Mr Kalnins testified to his surprise that the grievor did not sign the contract. He also advised the grievor that he would again consult with Mr Thomas, who would talk to Dr Humphnes, and another meetmg on September 30, 1992 was scheduled That meeting took place as arranged, and the gnevor was joined by a union steward Another member of management was also present Mr Kalnins again offered the gnevor a contract renewal with the same accommodation set out above Mr Kalnms testified that this accommodation met the grievor's medical needs as set out in Dr Greenspoon's letter as there would be no more rotational shifts Mr Kalnins testified that the gnevor told him that he had seen his doctor since September 23, 1992, but that he did not have any further information to provide him The grievor also indicated that he needed more time to discuss the accommodation Issue, and Mr Kalnins told him that he knew on September 23, 1992 what the employer Intended to offer, and that there would be lIttle purpose served by prolonging his decIsion given the fact that the gnevor had, but did not use, the opportunity presented to him to obtain and provide the employer with additional information The gnevor refused to sign the contract. He was scheduled to work that evening for several hours, but Mr Kalnins directed that he be paid for those hours Instead, and he was also given one week's pay The gnevor did not return to work after that meeting .. 6 'f Employer Argument In Mr Benedict's submission, after September 30, 1992, when the gnevor's last contract expired, he was no longer an employee and had no nghts under the Collective Agreement. As the gnevor was not a public servant, the Board, in the employer's View, had no junsdlctlon to hear his gnevance The decIsion to renew or not to renew a contract employee was, In Mr Benedict's submission, not subject to scrutinY by this Board Before turning to the case law in support of hiS submissions, Mr Benedict argued that the facts proved that there was no bad faith on the part of the Ministry in ItS decision not to renew the gnevor's contract, and he suggested that the evidence indicated good faith given the employer's accommodation offer Mr Benedict made it clear, however, that even if the employer's deCISion was tainted in some way, the fact remained that the Board lacked jurisdiction to hear this case Mr Benedict reviewed a number of cases With the Board including Parry 237/91 (Low), Porter 428/90 (Brandt), Singh/Mohamed 721/89 (Kirkwood), Lavoie 441/91 (Keller), and OPSEU (Parry, Porter, Singh) v. Her Malesty the Queen In Right of Ontano (unreported deCISion of the DIVISional Court dated February 4, 1993) The purpose of thiS review was to demonstrate to the Board that as a matter of law, while there was once some uncertainty about the status and nghts of unclassified employees, It was now settled that an employee hired in the unclassified service ceases to be a public servant upon the expiry of hIS or her last contract Applying that pnnclple to the Instant case, Mr Benedict argued that the gnevor ceased to be an employee upon the expiry of his contract Accordingly, the Board had no junsdlctlon to hear his case 7 " - Mr Benedict also referred the Board to some of Its earlier Jurisprudence including the Shipley 0223/86 (Samuels), Mousseau 1182/85 (Jolliffe) and Simpson 694/85 (Kennedy) decIsions This Junsprudence was relevant, In Mr Benedict's submission, because It pre-dated the Beresford line of cases which were, In Mr Benedict's submission, effectively overruled by the Divisional Court In the OPSEU (Parry, Porter, Singh) decIsIon Accordingly, in Mr Benedict's view, these cases were dIrectly applicable to the Instant one, and were, he suggested, governing In Shipley the Board was called upon to decide, among other things, whether it had the junsdiction to provide a remedy for the non-renewal of a contract where It could be shown that the reasons for the non-renewal was the employer's reliance on a policy which was contrary to the Ontano Human Rights Code The Board In Shipley held that an unclassified employee has no nght to the renewal of his or her contract, and that section 18(2) of the Crown Employees Collective Bargaining Act gave the Board junsdlctlon over three types of gnevances, and as there was no violation of the term of the Collective Agreement dunng the period in which the gnevor was . employed, he had no rights to gneve and the Board was therefore without Junsdiction to hear hiS gnevance The Board held In Shipley But this is not a case involving a violation of the collective agreement The grievor does have nghts under the collective agreement, pursuant to Article 3 and other proviSions, but these nghts apply to him only while he IS a member of the unclassified staff The employer did not breach any rights which the gnevor had dunng the grievor's term of employment. The substance of the gnevor's complaint IS that he did not have employment after the term of his contract expired But he had no 8 ,~ contractual nght to renewal and there was no violation of his contractual rights during his term of employment (at 4) Counsel for the Union before us argued that the situation is different when we know that but for the employer's adherence to the policy (whIch It IS argued IS Illegal because it is contrary to the Ontario Human Rights Code 1981), the grievor would have been renewed With respect, we don't see how that changes the situation Even if we were to decide that the policy is Illegal, we cannot get around the fundamental pomt that the gnevor had no contractual right to renewal There has been no violation of any contractual nght (emphasis not ours) It may be that there has been a violation of the Human Rights Code (but we emphasize that we are makmg no such finding), m which case the proper forum for the gnevor is the Ontano Human Rights Commission It is the body which is empowered to investigate and make fmdmgs concerning breaches of the Code (at 9-10) Mr Benedict also noted that the Board In Shipley referred to the Board's decision in Humenluk 614/84 (Spnngate) where It stated "There is nothing in the collective agreement or in the applicable statutes which guarantees contract employees the nght to be reappointed, or which m any way restncts management when It makes a decision as to which contract employees are not to be renewed Accordingly, the non-renewal of the gnevor's contract, which was not tainted by bad faith on the part of the employer, did not mvolve a breach of either the collective agreement or a relevant statute (at 1 1 - 12) Commenting on this fmdlng, the Board in Shipley stated "Why would It matter If the failure to renew was 'tainted by bad faIth' (whatever that would mean In the circumstances)? This Board simply has no jurisdiction over non-contractual problems, except for the 9 ,~ three matters mentioned In section 18(2) of the Crown Employees Collective Bargainmg Act (at 8) Mr Benedict argued that similarly In the Instant case, as In Mousseau and SImpson, the Board must decline Junsdlction and uphold the employer's preliminary objection In response to a question from the Board, Mr Benedict stated that the employer's accommodation obligation, necessitated by Article A of the Collective Agreement, expired with the grievor's contract Mr Benedict argued that the Board does not eXist to resolve the Injustices of the world, and that the grievor had other places to turn to if he believed that his human rights had been violated In Mr Benedict's submiSSion, Article A IS for the benefit of employees only After September 30, 1992, the gnevor was not an employee but was a member of the public and therefore had no nghts under Article A Union Argument Union counsel began her submissions by noting that the union was not taking issue with the propriety of the gnevor's initial appointment to the unclassified cIvil service, and she distingUished the Parry award on this basis Rather, the union was asserting a violation of the Collective Agreement dunng the gnevor's period of employment, and counsel argued that the Board should take junsdlction In this case, and could do so on three separate grounds 1) an allegation of a violation of Article A, 2) the failure of the Minrstry to exercise its discretion fairly and reasonably, and 3) the failure of the Mlnls'try to observe the rules of procedural fairness In ItS decIsion making 10 ,~ With respect to the alleged violation of Article A, counsel pOinted out that this provision specifically Incorporates the Ontano Human RIghts Code definitions, and that the gnevor's medIcal condition fell squarely within the definition of "handicap" set out In the Code As such, the employer was obligated by Article A not to dlscnminate against the gnevor on the basis of his handicap and was further obligated to accommodate the gnevor to the point of undue hardship In support of this proposition, union counsel cited Re The Crown In right of Ontario (Ministry of Government Services) and Ontario Public Service Employees Union (Kimmel/Leaf) 21 L.A C (4th) 129 (Kaplan) Counsel noted that on the evidence of the employer, the grievor brought his medical condition to the Ministry's attention during the penod of his employment, and counsel argued that the accommodation obligation arose at that time As already indicated, counsel took the position that in replying to the Ministry's procedural objection, it was entitled to rely on the union's best case, and the union asserted that the employer knew that ItS accommodation offer would not meet the grievor's needs and It therefore was not in compliance with the employer's legal accommodation obligation In counsel's View, It was noteworthy, again on the employer's own eVidence, that It began to turn ItS mind to the accommodation obligation whIle the gnevor was an employee, and It could hardly say In these circumstances, that the obligatIon expired when It failed to offer the gnevor an appropnate accommodation during his eXisting contract as well as at ItS conclusion Counsel urged the Board to take Jurisdiction in this case, and argued that the alleged violation of Article A while the gnevor was an employee provided more than suffiCient reason for it to do so 1 1 -2 Counsel also argued that pursuant to the Board's decision in Bousquet 541/90 (Gorsky), the Board could and should take JUriSdiction in this case Counsel argued that the Bousquet decIsion stood for the proposition that rn exercising managerial functions under section 18(1 )(a) of the Crown Employees Collective Bargarning Act, where the exercise of that discretion has an effect on other Collective Agreement provisions, such as Article A, the employer must act fairly and reasonably And in counsel's submission, the employer's evidence indicated that it had not. Counsel noted that in the instant case, Article A, (which applied to the grievor by virtue of Article 3 16), was Impacted directly by the employer's decision not to accommodate the grievor which led to the decision not to reappoint him The effect of all of this was to completely eradicate all of his rights under the Collective Agreement. In an alternative submission, counsel argued that even If the Board found that the grievor had no Article A rights, because he was no longer an employee, then the Bousquet decision gave the Board authority to take jurisdiction on the basIs of an alleged violation of the Ontario Human Rights Code with the scope of the Inquiry directed at determining whether the employer has acted fairly and reasonably Frnally, counsel argued that the Board should and could take junsdlction rn thiS case on the basIs of the Mrnlstry's failure to comply with the rules of procedural fairness, and she cited Grummett 1656/90 (Keller) as the authOrity for thiS proposition In counsel's View, the employer's eVidence rn the instant case established the fact that when Mr Kalnins met with the grievor on September 23, 1992, and again one week later, it had already decided what accommodation offer it would make, and it failed to provide the grievor with any opportunity to provide rnput rnto that decision or to proVide additional medical information In counsel's View, having made its '2 ..t decIsion in advance, the employer had not acted properly In further support of thIs proposition counsel cited the Humenluk decIsion referred to above, and In fact drew the Board's attention to that part of the decision extracted above In counsel's View, there was no reason to prefer the findings of the Board in Shipley to the findings of the Board In Humenluk, and counsel also referred the Board to the union dissent In Shipley, as well as the dissent in Healey 0485/88 (Fisher) Counsel further distingUished these two cases by pomtlng out that they pre-dated Article A as well as the Bousquet award In conclusion, counsel asked the Board to take Junsdlction with respect to this case Employer Reply In his reply, Mr Benedict again emphasized that the Board denves Jts. jurisdiction from the Crown Employees Collective Bargaining Act. That legislation authonzes the Board to hear grievances from employees relating to discipline or to a violation of the Collective Agreement. The gnevor was not, In his view, an employee and he had no nghts under the Collective Agreement or the statute, and he again cited Parry in support of this proposition In response to union counsel's argument, Mr Benedict endorsed the general principle that the employer has a duty to exercise ItS discretion fairly, but argued that this duty IS limited to employees not to members of the general public such as the gnevor Mr Benedict also distinguished the Grummett deCision and argued that a distinction must be drawn between jurisdiction and procedural fairness, and argued that In any event, in hiS view, Grummett was incorrectly decided Very simply, in Mr Benedict's submission, at the expiry of hiS contract, the gnevor ceased bemg an employee, was no longer covered by the Collective Agreement, and the Board 1 3 ., was without Junsdictlon to hear his case Decision Having carefully considered the eVidence and arguments of the parties, we have come to the conclusion that the employer's preliminary objection must be dismissed In our view, it is not necessary, in the determination of the employer's preliminary objection, to make any findings with respect to the statutory and Collective Agreement entitlements, If any, of persons whose contracts of employment have concluded and who have not been reappointed to the public service The law on this point appears to be settled However, this is not the case before us. The instant case IS about a Collective Agreement entitlement which arose during the course of the gnevor's employment, while the grievor was covered by Article A of the Collective Agreement. Without making any findings whatsoever about the sufficIency of the employer's accommodation offer, and based on the union's best case that the grievor was entitled to accommodation, as well as the evidence of Mr Kalnins, the conclusion is Inescapable that the grievor would have been given another contract If he had accepted the employer's accommodation offer made to him while he was still an employee He did not consider the accommodation offer appropriate, and, in fact, he advised the employer of thiS when he met With Mr Kalnins on September 23, 1992, one week pnor to the end of his contract and some months after he first brought his medical condition to the employer's attention One week later, the gnevor asked, again based on Mr Kalnins's evidence, for additional time to consider the offer, but for whatever reason, Mr Kalnins did not consider thiS to be a 0 .. 14 " reasonable request and so withdrew the accomm'Jda.tlon offer and the offer of a successor employment contract. While it is undoubtedly the case that unclassified employees, at the conclusion of their contract, have no new Collective Agreement rights, It cannot, In our View, be correct that the conclusion of an unclassified employee's contract of employment extinguishes nghts which arose dunng the penod of employment when the employee was covered by the Collective Agreement Article 3 of the Collective Agreement sets out vanous entitlements of unclassified employees What if, for Instance, an unclassified employee was not paid overtime on the last day of his or her employment. According to Mr Benedict, the next day that person would not be an employee but would be a member of the public with no nght to gneve and the Board would be without jurisdiction to hear that grievance In our View, where a Collective Agreement entitlement arises during the course of employment, In some circumstances the individual may remain an employee for the purpose of filing a gnevance after the employment relationship has come to an end Whatever the decIsion In Parry stands for, It IS not the proposition that Collective Agreement and statutory nghts of employees that anse during the course of employment are in every case extinguished at its conclusion To reach this result would be to deny employees In some cases, such as this one, the benefit of the Collective Agreement In this case the grievor's Article A nghts were allegedly infnnged while he was an employee, and it IS on this baSIS that we are taking JUriSdictIon with respect to his case The first accommodation offer was made to him -- '5 ~ '. one week prior to the end of his employment contracted and was repeated on the last day of that contract. The offer was declined, and a timely grievance was filed Obviously in taking junsdlction In this case we are making no findings whether the employer had an accommodation obligatIon, and If It did have such an obligation, Its nature and extent All we are dOing is finding that there might have been a violation of Article A while the gnevor was an employee, and that this alleged violation IS properly before the Board As already indicated, the fact that the grievor would have been offered a successor contract had he accepted the employer's accommodation offer has figured prominently in our deliberations It is in this respect that the grievor's allegation of unjust discharge IS directly linked to the allegation of a violation of Article A While all the evidence is not In, it is worth observing at this pOint that the employer's general approach to this gnevor raises more questions than answers The duty to accommodate necessanly Involves consultation with the affected employee who must in turn respond reasonably to bona fide accommodation offers A "take It dr leave It" approach In the last week of an employee's contract, with a promise of renewal if the employee "takes It", and the prospect of no further employment If he or she "leaves It" would not appear to satisfy the employer's obligation to effectively consult with the employee To countenance such an approach would be to gut the provision, insofar as It covers unclassified employees, particularly In a case such as this one where the grievor had been employed under successive contracts for several years, and only stopped being employed when he sought accommodation under Article A and did not accept the accommodation that was offered to him. In reaching thiS conclusion we are not granting any new nghts to unclassified employees at the end of .. 16 ~ their terms of employment. Rather, all we are dOing IS recognizing the necessanly continuing nature of some Collective Agreement nghts including Article A nghts which arise while an indiVidual IS an employee Accordingly, the line of cases relied on by the employer about the status of former unclassified employees are of no assistance to us in this case LikeWise, the pre-Beresford cases are of little value for they predate the eXistence of Article A While panels of this Board were once prepared to find that a proven violation of the Ontario Human Rights Code was inarbitrable, the existence of Article A changes that situation for its incorporation into the Collective Agreement means that Its alleged violation is properly within the jurisdiction of the Board It should also be noted, as was noted In Kimmel/Leaf, that "in the same way Canadian courts have repeatedly sanctioned a purposive approach to discrimination that broadly interprets human rights laws so as to eliminate dlSCnmlnatlon and provide meaningful relief, Article A of the Collective Agreement should also be Interpreted" (at 159) While all of the evidence IS not In, what evidence we have Indicates that the employer recognized It had an accommodation obligation It made an accommodation offer That offer was rejected, but in turning it down the gnevor requested additional time to consider it. The employer said no Whether or not the employer and the gnevor acted within the scope of Article A and the requirements of the duty to accommodate will be considered when this case proceeds on Its merits The scope of that review Will, of course, be whether the employer has fulfilled Its obligations under Article A, and If we find that it did not, the questIon of remedy Will then have to be addressed I, ~ ~ 17 t Given our findings with respect to the applicability of Article A, the employer's preliminary objection IS dismissed It IS, accordingly, not necessary to consider the union's second and third submissions In support of ItS request that we take jurisdiction in this case This matter will reconvene on a date or dates to be set by the Registrar DATED at Toronto this 3rd day of May, 1993 rv ' v--- ----------------- William Kaplan Vice-Chairperson - () , ! lf1/ ~I /! ~ l..:...'......._ :. ! i r .,.... . . .' .:... ,; ..- --------------r- H 0' Regan Member 'J ~~-~ Jiles Membe r