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HomeMy WebLinkAbout1992-1803.Creighton.93-09-08 ,. - ONTARIO {'- /~- EMPLOYES DE LA COURONNE \ CROWN EMPL ",is DE L'ONTARIO ',...:1- i. f~ '. GRIEVANCE COMMISSION DE , 1111 SETTLEMENT REGLEMENT BOARD DES GRIEFS 180 DUNDAS STREET WEST SUITE 2100, TORONTO, ONTARIO, MSG lZ8 TELEPHONE/TELEPHONE (416) 326-1388 180, RUE DUNDAS OUEST BUREAU 2100, TORONTO (ONTARIO) MSG lZ8 FACSIMILE /TELf~COP/E (416) 326-1396 18~3/92 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN OPSEU (creighton) Grievor - and - The Crown in Right of Ontario (Ministry of Natural Resources) Employer BEFORE: J Roberts Vice-Chairperson M Vorster Member C. Linton Member FOR THE M Gottheil UNION Counsel Lynk, Engelmann & Gottheil Barristers & Solicitors FOR THE D. Jarvis EMPLOYER Counsel winkler, Filion & Wakely Barristers & Solicitors HEARING April 16, 1993 ( (' C '..:~~.'" \, -., ,~ INTERIM AWARD At the outset of the hearing in this matter, counsel for the Employer raised a preliminary objection that seems to us to have placed an insurmountable obstacle in the way of the grievance at hand On September 1, 1992, the grievor filed a grievance I claiming, inter alia, that he had "been improperly des-ignated in the unclassified service" and had "been dismissed without just cause." In his preliminary objection counsel for the Employer submitted, inter alia, that the Grievance Settlement Board did not have jurisdiction to entertain this grievance because it presented a threshold issue of the employment status of the grievor. - This was a question that in the submission of counsel for the Employer was within the exclusive jurisdiction of the Public \ Service Labour Relations Tribunal. Counsel for the Union resisted this submission on the ground that the Grievance Settlement Board shared with the Tribunal concurrent jurisdiction over questions of ; employment status and further submitted that in the circumstances we should not defer to the Tribunal but, in fact, take jurisdiction and hold a hearing to decide the issue. After considering the submissions of the parties, however, we have decided that it would be inappropriate to assert jurisdiction to determine the grievor's ~ employment status. (, ( . .- 2 Our reason for characterizing the preliminary objection of counsel for the Employer as placing an insurmountable obstacle in the way of the grievance at hand is that every Grievance Settlement .. ' Board case that has cons1dered the 1ssue to date has reached the opposite conclusion from that urged by counsel for the Union. Three of these cases, Re Unron Policy Grievance and Ministrv of Natural Resources (1992) G S.B. #2109/91 (Samuels); Re O'Breza and Ministrv of Agriculture and Food (1989) G.S.B #1101/88 (Fisher); and, Re Lasani and Ministrv of Community and Social Services (1987), G S.B 147/84 (Delisle), concluded that the Public Service Labour Relations Tribunal had exclusive jurisdiction over the question of membership in the bargaining unit. In three others, Eg- Coones and Liquor Control Board of ontario (1991), G S.B #2311/90 (Stewart); Re Union Grievance and Management Board of Cabinet (1988), G.S B. #2086/86 (Draper); and, Re Union Grievance and Ministrv of Industry. Trade and Technoloqv (1987), G S.B. #1257/86 (Barrett), it was concluded that the Grievance Settlement Board had i /' concurrent jurisdiction but that the Board should defer to the Tribunal. In all of these cases, the Board was interpreting and applying the following provisions of the Crown Employees Collective Bargaining Act: 39. The Tribunal has exclusive jurisdiction to exercise the powers conferred upon it by tpis Act and to determine all questions of fact or law that arise in any matte~ before it, and, except as otherwise provided in this Act, the action or decision of the Tribunal thereon is final and r r ( \, "" ~ 3 binding for all purposes, but nevertheless the Tribunal may at any time, if it considers it advisable to do so, reconsider any decision, order, direction, declaration or rUling made by it and vary or revoke any such decision, order, direction, declaration or ruling. R.S.O. 1980" c 108, s 39 " 40. (1) If, in the course of bargaining for a collective agr~ement or during the period of operation of a collective agreement, a question arises as to whether a person is an employee, the question may be referred to the Tribunal and its decision thereon is final and binding for all purposes (2) If, in the course of bargaining for a collective agreement or during proceedings before a board of arbitration, a question arises as to whether a matter comes within the scope of,- collective bargaining under this Act, ei ther party or the board of arbitration may refer the question to the Tribunal and its decision thereon is final and binding for all purposes R S.O. 1980, c. 108, s 40 - As can be seen,\ s. 39 states, inter alia. that the Tribunal has exclusive jurisdiction to exercise the powers conferred upon it by the Act. section 40 (1) provides that questions regarding the status of a person as an employee may be referred to the Tribunal. section 40 (2) further provides that questions whether a matter come~ within the scope of collective bargaining under the Act may be referred to the Tr~bunal by either 'party to an arbitration or the Board. The Grievance Settlement Board decisions concluding that pursuant to the above provisions, the Tribunal has exclusive jurisdiction over questions of status within or without the bargaining unit appear to have done so on the basis of a decision &~ /-" j , [. 4 of the Divisional Court, The Queen and the Ontario Public Service Employees' Union (D. W. Canninq) ( 1986) , 14 0 A.C 233 In that case, the Divisional Court concluded as follows ;. In the ontario Public Service, there is a distinction between bargaining unit employees and non-bargaining unit employees. The distinction is sometimes referred to as a question of status. An unresolved dispute with respect to the status of a particular employee is d~termined by the Labour Relations Tribunal established under the Act~ status is separate and apart from classification. The board has jurisdiction to consider job classification but not status . Id. at 234 The court clearly concluded that the Labour Relations Tribunal established under the Crown Employees Collective Bargaining Act had \ - sole jurisdiction over disputes with respect to the status of a particular employee The Grievance Settlement Board cases concluding that the Board has concurrent jurisdiction with the Tribunal over questions of status apparently did so after considering a decision of the i ontario Court of Appeal, Re Canadian Industries Ltd. and International Union of District 50. Allied and Technical Workers of United states and Canada. Local 13328, [1972] 3 O.R 63 (Onto C.A.) . In that case, the Court of Appeal decided upon statutory language in the ontario Labour Relations Act that was essentially identical to that found in sections 39 and 40 of the Crown Employees Collective Bargaining Act that the ontario Labour Relations Board did not have exclusive jurisdiction over questions ( (- ". 5 of status,; instead, its jurisdiction over such questions was concurrent with that of a board. of arbitration. ;; The court fixed upon the language of the Labour Relations Act that mirrored the statements in section 40 of the Crown Employees Collecti ve Bargaining Act that "the question may be referred to the / Tribunal". The court said: When the Legislature wanted to give the ontario Labour Relations Board exclusive jurisdiction over a sUbject-matter, it did so in plain and unequivocal language Indeed, it used those very words in s-s. (1) In s-s. (2), on the other hand, the language used is that the questions there referred to "may" -- and I emphasize Mav -- "be referred to the Board". We hold that this language is permissive and not mandatory .. Id. at 65. . j In the face of this construction of essentially identical language \ in the ontario Labour Relations Act, the panels of the Grievance Settlement Board that decided the latter group of cases felt compelled to hold that, likewise, the jurisdiction of the Tribunal i over questions of ,status under the Crown Employees Collective Bargaining Act was merely permissive and therefore could be concurrently exercised by the Board. If it were necessary for this panel of the Board to decide one way or the other, we would be inclined to the view that the jurisdiction of the Public Service Labour Relations Tribunal over questions of status as a member of a bargaining unit is exclusive and' cannot be shared by the Grievance Settlement Board While we c~ ~.' ( 6 recognize that identical language in the ontario Labour Relations Act was interpreted otherwise by the ontario Court of Appeal, it seems to us that the more recent approach of the Divisional cpurt in canning is the most appropriate interpretation to place upon the wording of sections 39 and 40 of the Crown Employees Collective Bargaining Act It is a commonly-applied canon of construction that statutory j l~nguage ought to be interpreted in light 6f the overall scheme of the entire statute. In this respect, there are distinctions between the scheme of the ontario Labour Relations Act and the J Crown Employees Collective Bargaining Act As was pointed out by- counsel for the Employer, the Crown Employees Collective Bargaining Act establishes in express terms two separate bodies, the Grievance Settlement Board and the Tribunal. It then attempts to define in detail the jurisdiction of each. NO similar structure is found in the ontario Labour Relations Act. Under that Act, labour arbitration proceedings are conducted on an ad hoc basis and jurisdiction over them is not vested in any particular body. In the face of this lack of clear delineation of jurisdiction, it perhaps was not unreasonable for the Court of Appeal to have f concluded as it did in the C.I.L. case. In the face of the clear delineation o.f jurisdiction that was expressed in the Crown Employees Collective Bargaining Act, however, the result of the process of statq.tory construction might well have been that expressed in Cannina. ?c ,/~ 't ( - ... 7 Regardless of which approach this panel of the Grievance Settlement Board decided to adopt, however, the result would be the same referral of the parties to the Tribunal As was noted, in G.S.B. Coones, supra, even if concurrent jurisdiction were found, there are sound policy reasons for maintaining the consistent approach of the Grievance Settlement Board to such matters in referring them to the Tribunal In this regard, the panel in Coones said, "as this Board has stated on many occas;i.ons, an established approach ought to be departed from only for the most compelling reasons." Id. at 10. The panel did not consider the presence of other issues between the parties or the delay in the resolution of a dispute that would result from referring the matter - to the Tribunal as being sufficient reasons to compel a departure from the Grievance Settlement Board established practice / In this case, the only su~mission on this branch of the case by counsel for the Union was that this case presented upon its i merits an issue of unjust discharge and that the question of status was .a mere threshold issue not constituting a large part of the "meat" of the case. We disagree. Until status is decided, the question whether the grievor even had a right to file .a grievance .. claiming unjust discharge will remain up in the air. At this stage of the game, the only "meat" for consumption is that surrounding the issue of status. That "meat", however, is in the circumstances most appropriate to the menu of the Public Service Labour Relations Tribunal. / (: , ;j') ~ !" 8 The preliminary objection to jurisdiction is allowed DATED at London, ontario this 8th day of Septemb",er, 1993. R Vice-Chairperson "I Dissent" (dissent to follow) M Vorster, Union Member --&c~ ~.~ - c. Linton, Employer Melllber { : l