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HomeMy WebLinkAbout1992-1685.Pitirri.96-01-09 -. \:-- ~- ONTARIO EMPLOYESDE LA COIJRONNE -. CROWN EMPLOYEES DE L'ONTARIO GRIEVANCE COMMISSION DE 1111 SETTLEMENT RE,GlEMENT · BOARD DES GRIEFS 180 DUNDAS STREET WEST. SUITE 2100, TORONTO ON M5G 1 Z8 TELEPHONEiTEU?PHONE (416) 326-1388 180, RUE DUNDAS OUEST. BUREAU 2100, TORONTO (ON) M5G 1Z8 FACSIMILE/TELECOPIE (416) 326-1396 GSB # 1685/92, 1686/92, 1687/92, 1688/92, 1689/92, 1690/92, 1691/92, 1692/92, 2374/92 OPSEU # 92G154, 92G156, 92G157, 92G158, 92G159, 92G160, 92G161, 92G155, 92G503 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN OPSEU (pitirri) Grievor - and - I - The Crown in Right of Ontario I (Ministry of Correctional Services) Employer BEFORE W Kaplan vice-Chairperson ; \ FOR THE M Doyle GRIEVOR Counsel Ryder, Wright, Blair & Doyle Barristers & Solicitors FOR THE D strang EMPLOYER Counsel Legal Services Branch Manangement Board Secretariat HEARING December 13, 1995 :- 2 -~ . I nt roducll 0 n On March 10, 1994, a panel of the Board, following four days ofheanng, Issued a decIsion dismissing the termination grievance of Mr Joseph Plttln In brief, Mr Plttlri, an unclasSified \ employee, w~s not rehired following the conclusion of his last employment contract, and he alleged, among other things, that he had been discriminated against on the basis of disability- As Mr Plttin had filed a number of gnevances, the parties asked the Board to deal with the termination grievance first, and to remain seized with respect to the remainder of the matters in dispute After Mr Pittiri's termination grievance was dismissed, the Board was- asked to reconvene with respect to the grievances that had been adjourned sine die A hearing was, accordingly, arranged, and at that heanng, counsel for the employer took the position that none of the grievances were arbitrable because they were either out of time, moot, or already resolved Counsel referred to several signed settlement agreements, which were introduced into evidence, in support of the last of these submissions The employer also urged the Board to keep in mind that the grievor was a former employee, and that the termination of his employment had been upheld by the Board For her part, union counsel took the position that the Board should assume jurisdiction as the grievances did raise real matters that continued to be in dispute, and that a number of these matters were Important and deserving of a hearing notwithstanding the fact that the gnevor was no longer employed The Grievances It IS useful to briefly describe the outstanding grievances and the posItIon of the parties with respect to each of them. \ 3 - Gnevance One Dated July 8, 1992, this grievance alleges "disciplinary action against an unclassified staff member vs a classified staff member, thus showmg dlscnminatlon " The remedy sought is "full pay and benefits for lost time from Dec. 27, 1991 to Feb 23, 1992 equaling 58 days lost. In addition monetary compensation for unre()sonable stress on family, both mental and financial" Union Position According to union counsel, the grievor was no longer seeking financial compensation as that issue had been resolved in a signed settlement. However, the gnevor was seeking a remedy for having been harassed ThIS harassment had occurred during the time frame noted above, however, it was not until significantly later that the grievor realized that he was the Victim of harassment by reason of his involvement In the trade Union and because of his interest and participation In health and safety matters Accordingly, the union asked the Board to take Jurisdiction in this case, issue a declaration that the Collective Agreement held been breached Employer Position Counsel noted, as the union had conceded, that the very subject matter of thiS grievance had been resolved in a signed settlement. That settlement, which as earlier noted was introduced Into evidence, served as a bar to any hearing, and counsel made the point that settled grievances cannot be revived Simply through recharacterization Counsel also observed, and thiS observation was repeated with respect to several of the other grievances, that the information that the grl~vor was either a union or health and 4 ~ safety activist came as news to the employer Moreover, th~ pomt was made that a long hearing with respect to discrimination on the basIs of disability had been held, and at no point during the course of that proceeding was the suggestion ever made, by the grievor or anyone else, that the grievor was a union or health and safety activist, nor was the allegation ever made that he was bemg harassed by management for these reasons Gnevance Two This gnevance, dated July 8, 1992, states. "Falsely accused an unclassified correctional officer of being not suitable for his position without proof Thus non-renewing of a contract under false grounds and causmg loss of pay and undue stress" The remedy sought is "Full pay and benefits for lost time from March 26, 1992 to April 27, 1992 not considering the 1 week pay m lieu of notice In addition, monetary compensation for unreasonable stress on family both men~al and f.inancial " Union Position In this case, as with the first gnevance, the union candidly agreed that the matter formally raised in the gnevance had been resolved; but took the position, nevertheless, tht:it the employer's actions, considered over a period of time, constituted a pattern of harassment and should therefore be subject to arbitral review Reference was made, in this regard, to a letter the employer had sent (subsequently uncovered by the grievor m a FOI request), mdicating that misconduct was involved in management's decIsion not to renew the gnevor's employment contract. Accordmgly, the union asked for a declaration that the Collective Agreement had been breached, and .a fmdmg that the grievor had been dlscnminated agamst. The unron 5 also asked that the employer be directed to wnte UIC and to correct the earlier mlsleadmg information that it had provIded Employer Position The employer took the position that the subject matter of thiS gnevance had been resolved in one of the signed settlements ) Grievance Three ThiS gnevance, dated July 8, 1992, states "An unclassified correctional officer was [led] to believe that a new policy was to be implemented for all "- unclassified staff However, it is now evident that this settlement letter IS [discriminatory] against unclassified correctional officers with 2 years service and more In addition, the Ministry of Correctional Services have '\ not upheld their part of the agre~ment." The remedy sought is that "this obvious diSCiplinary letter be withdrawn and an annual training refresher course be implemented where applicable in conjunction with regular work performance appraisals for all unclassified staff" Union Position ThiS grievance, according to unIon counsel, referred to a settlement arrived at with respect to an earliergrieyance which provided that it was a condition of the grievor's employment/that he compete in job competition for a full-time job, and obtain a score of 55% or higher ThiS settlement further provided that if the grievor failed to obtain such a score, the employer would proVide assistance and monthly performance appraisals In the union's submission, this grievance was clearly arbitrable as the employer did not live up to the terms of the settlement as It only proVided the gnevor with late and backdated performance appraisals Moreover, the , 6 union took the position that the employer's Implementation of the settlement was furtherevipence of Its mistreatment of the gnevor Accordingly, the union asked fora declaration that the Collective Agreement had been breached, a finding that the grievor had been dlscnmlnated against, and a declaration that the employer had failed to live up to its commitment under the settlement. Employer Position The employer took the position that the subject matter of this grievance had been resolved In one of the signed settlements Moreover, even If the employer had any obligations to provide training to the grievor - and counsel pointed out that there was no evidence before the Board that the gnevor had unsuccessfully competed in a competition that would have created such an ,obligation - the provision of such training would be pointless, as the grievor was a former employee and the employer had no intention of hiring him in the future The remedy sought was, therefore, In management's view, moot. Grrevance Four ThiS gnevance, dated July 8, 1992, alleges the violation of various provisions of the Health and Safety Act, and seeks, by way of remedy' "Complete training supplied as given to classified correctional officers and some unclassified correctional officers in which It has already been given" Union POSition Union counsel took the position that thegravaman of thiS gnevance was the employer's failure to provide the grievor and others with proper training The gnevor, counsel noted, had to repeatedly request CPR and first aid 7 training. In addltlon, the grievor was Issued With a baton but never properly trained In Its use Counsel argued that this grleyance clearly demonstrated an arbitrable breach of the Collective Agreement for there was eVIdence that the employer had not met ItS obligations urider that agreement and the Occupational Health and Safety Act Accordingly, the union asked for a declaration that the Collective Agreement had been I breached, and a finding that the grievor's health and safety had been Jeopardized Employer Position In the employer's view, not only did the grievance form not state a grievance, but the grievance itself was out of til'De, and the remedy requested, given that the grievor was no longer an employee, would be both pointless and moot. What possible purpose would be served by thiS \ procee.ding, counsel asked? The employer had no idea what the grievance was purportedly about, but counsel argued that even If the matter proceeded, the best that the union and grievor could possibly hope to achieve was a declaration of some health and safety Violation relating to an event that had taken place years ago Grievance Five ThiS grievance, dated July 8, 1992,states I grieve senior management falsified a statement that 'Although shields and batons were Issued, none were used' This statement was false and mislead an important pOint to health and safety, as well as an important legal pOint of responsibility of the institution due to insuffiCient training of staff " The remedy requested was "The statement be retracted and made correct, bCltons and shields were used, and thiS form of evasion should not occur again " r \ 8 Union Position Related to one of the other gnevances, this grievance concerned an event that had occurred In October 1991 According to the Union, shields and batons were issued and used Subsequently, the employer posted a notice congratulating employees on their response in the riot. The notice stated that no batons were used and this, the union argued, was misleading -. Furthermore, It endangered the health and safety of employees Accordingly, the union asked for a declaration that the Collective Agreement had been breached The union also asked that the employer be directed to retract Its earlier statement that batons and shields had not been used Employer Position Employer counsel noted that management had asked for a copy of the offending notIce, but had never been given one and had, moreover, no ~ knowledge of any such document. Furthermore, counsel questioned the timing of the grievance - it was filed 'many months after the events had occurred and was, therefore, out of time Counsel also asked what possible benefit there could be to the grlevor or trade union even if he succeeded In proving his case, a proposition that the employer suggested was doubtful, a t best Gnevance SIX ThiS grievance, dated July 8, 1992, states that on 'tDecem,ber 2, 1991, a letter was sent to the compensation board stating 'proper decontamination "- procedures were Immediately implemented' ThIS is not what happened thus misinforming the W C B and shedding doubt of the actual exposure time to the mace" The remedy sought was that "a letter be sent to theW C B retracting thiS statement and reinforcing my credibility once again " 9 Union Position According to the union, the grlevor had to attend at the hospital following exposure to mace What was important, however, was the employer's letter Inaccurately stating that proper procedures had been followed The grievor knew otherwise because he had be.en affected by the mace, and the letter, \ therefore, was further evidence Of the harassment that the grievor suffered Accordingly, the union asked for a declaration that the Collective Agreement had been breached, and a finding that the grievor had been dlscnminated against. Furthermore, the Board Was asked to direct the employer to write the WCB correcting the information it had earlier provIded Employer Position This gnevance was, in the employer's view, untimely Moreover, in cOl:Jnsel's submission, the Board was without jurisdiction to grant the rerT1edy requested, and counsel also submitted, once again, that there was no eVidence of any discriminatory activitIes being directed against the grievor Grievance Seven This grievance, dated July 13, 1992, states "An unclassified correctloh~1 officer IS continually placed in segregation when called out for A & 0 dunng bneflng This preventing experience in A & 0 and showing discrrmlnatlon between unclassified and classified staff" The remedy requested was that "equality should be given to unclassified correctional officers and an A & 0 posting should be exactly that Continual duties in segregation for unclassified staff should stop, and a non.,dlscrimmative manner is how It should be managed Therefore allOWing unclassified staff to learn A & 0 10' properly and effectively Right to manage in a non-diSCriminative way" Union Position ThiS grievance, concerning the employer's practice of r~gularly asslgmng the gnevor to segregation when he was without full training, was further evidence of the discrimination the grievor was subjected to, and was, moreover, a violation of his health and safety In addition, the practice deprived the grievor of obtaining relevant experience Acoordlngly, the union asked fora declaration that the Collective Agreement had been breached, and a finding that thegnevor had been discnminated' against. Emplover Position \ \ This grievance was also, in the employer's submission, untimely and was also, to a great extent, resolved in one of the earlier settlements ~ Moreover, the remedy.requested, given the grievor's status, was moot Gnevance Eight ThiS grievance, dated July 8, 1992, states "I grieve that I am being ) discriminated and harassed against, from this institution therefore losing out on training wages from lost time of work and advancement Into a classIfied pOSItion II The remedy sought is "Proper training, lost wages,. classified position, 1 year retro benefits and seniority In ac;ldition, a monetary settlement for mental anguish due to stress caused by the events that occurred to me and my family due to these actions" Union POSItion While not entirely clear on its face, the union took the p.ositlon that thiS was a "catch'-all" gnevance incorporating a number of Improper managerial \ 1 1 acts dIrected against thegn~vor These acts, whIch counsel reviewed, occurred over a substantIal penod of time 'and reflected management's harassing attitude towards this employee Counsel asked that the Board , find a pattern of harassment and issue a declaratIon stating as much The Board was further asked to direct the employer to either assign the gnevor a position In the classified service, or to require It to extend him a new unclassified employment contract. In either case, the grievor should, in the Union's View, be compensated for the losses he had unjustly incurred Employer POSitIon Once again, the employer took the position that there was no evidence of ---" any dlscnmination agamst the grievor by reason of his union or health and safety activism, and there had been no mention of any such misconduct in the earlier proceeding All of the grievances were, counsel argued, inarbitrable They had either been resolved, were out of time, or were moot. No possible benefit could be served by allowing any of them to proceed to a hearing, and counsel urged the Board to dismiSS all of the grievances forthwith Union Reply Notwithstanding the manner in which the submissions of the parties are set out in this award, it should be noted that the case proceeded in the usual way, and concluded with a union reply In that reply, union counsel argued that while some of the cases had been settled, what remained outstanding was the employer's pattern of harassment directed against the grlevor For obVIOUS reasons, counsel observed, It may take an employee some time to fIgure out that he or she IS bemg systematically victimized, and that IS what had occurred In thiS case As soon as the pattern of harassment ~ 12 became clear, the grievor acted and flied grievances without delay Moreover, while It was true that some of the gnevances were, in a limited ., sense, covered by earlier settlements, that was not true with respect to all of them, and those that were not should still proceed to a hearing notwithstanding the fact that the grievor was no longer an employee HIS employment status had nothing to do with whethet ne had been victimized In the past, whether management had sent incorrect information about him to other agencies, whether his health and safety had been Jeopardized, and whether the employer had fulfilled its obligations under the two signed settlements These Issues, which the union argued were very Important to the gnevor, were timely and arbitrable Declarations, counsel argued, were important, and the fact that a grievor may not obtain any other relief was hardly a bar to proceeding A number of cases were cited in support of this submissIon Decision Having carefully considered the submissions of the PClrties, I am left wIth little choice but to conclude that all of the grievances should be dismissed The fact of the matter is that these gnevances are inarbitrable for three reasons First, some of them are covered by the two settlements resolving most of the underlYing Issues Second, the other grievances are clearly out of time and/or to a greater or lesser extent, moot. With respect to those covered by the settlements, one need ,only observe that the parties enter Into a~reements of this kind with the expectation that their agreements will remain In effect and that the grievances that have been resolved by their terms will, not reappear In some different gUise 13 . With respect to the other reasons for dismlssmg these grievances, It should be pomted out at the outset that the Issues underlymg the termmatlon of the gnevor's employment went to a hearing before a full panel of the Board At no time dunng that multi-day proceedmg, which resulted in a unanimous award upholding the termination of the gnevor"s employment, and WhiCh, moreover, found no eVidence of any discnminatory activity against the grievor, wasanythmg said suggesting that the gnevor was in any way bemg harassed by virtue of the fact that he was a trade union or health and safety activist. To now claim that the employer engaged in a pattern of harassment, and to urge that the Board take jurisdiction over vanous broadly stated grievances relating to events that occurred, in some cases many months before those grievances were filed, and to argue that harassment IS the real issue to be determined, is simply neither a sustainable nor a convincing position to take. It should also be pointed out that the evidence said to support the events not covered by th~ two signed settlements is stale, and relates to events that easily could have been, and should have been, gneved at the time Although this IS nota reason for dismissing the gnevances, it should be noted that some of the allegations are trivial In other cases, there is no possibility of providing the grievor with any meanmgful remedy (even / assuming for the sake of argument that the gnevances were arbitrable) since none of the gnevances, even if determined fully in the union's favour, could possibly result in the restor~tion of the grievor'semployment. The prospect of him receiving damages is even more remote Considered at their best, there IS no sensible remedy to grievances that, for example, suggest that this former employee had not been properly tramed, . ~ 14 or allege thaJ at some pomt In the distant past his health and safety had .been Jeopardized In addition, If the greivor has some concerns about references to him held In UIC or weB flies, he surely has the opportunity to take steps to correct that information When the gnevances are carefully conSidered, none of them indicates any ongoing dispute or difference between the parties, and this point IS confirmed by the various speCifiC remedies that have been -requested that are so obViously personal to thiS former employee Declarations are important, provided there IS some live issue between the parties, or, in another example, some Issue relating to the n1terpretatlon or application of the Collective Agreement. In some cases, a declaration alone will be a meaningful remedy, and the fact that It IS the only remedy sought, or available, will not, and should not, be a bar to proceeding ThiS is riot such a case Once again, even assuming that all of the grievances succeeded and a declaration of some sort was issued - and it is my finding that should the gnevances have proceeded, the. remedy, if the gnevances were successful, would most likely have been limited to a declaration - such a declaration would have no consequences or practical effect for the parties, and only limIted value for thegrievor given that he is no longer In the w'orkplace None of these gnevances, directly relates to the termination of the grievor's employment, the "catch-all" grievance notwithstanding That matter has already been finally resolved, and there would be no basis in this partIcular case to restore employment to the grievor In the exercise of the Board's broad remedial power All that taking junsdiction would achieve IS another long and protracted proceeding with no benefit to either party at the end of the day For all these reasons, the eight gnevances are dismissed , . " 15 n DATED at Toronto this 9th day of January 1996 .1 .-.- .-- .-,...--.--- - --------------- William Kaplan Vice-Chairman I ,