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HomeMy WebLinkAbout1992-3809.Smith&Booth.94-07-27 --', '.- ." ONTARIO EMPLOYES DE LA COURONNE I l CROWN EMPLOYEES DE L'ONTAR)O 1111 GRIEVANCE COMMISSION DE . 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 /TELECOPIE (416) 326-1396 3809/92, 3810/92 IN THE HATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN OPSEU (Smith/Booth) Grievor - and - The Crown in Right of ontario (Ministry of Revenue) Employer BEFORE: R. Verity Vice-Chairperson M Lyons Member M Milich Member FOR THE N Luczay GRIEVOR Grievance Co-ordinator ontario Public Service Employees Union FOR THE D Jarvis EMPLOYER Counsel Filion, Wakely & Thorup Barristers & Solicitors HEARING January 18, 1994 ~ I M 1\~- ,- .AI 2 DECISION Brian Smith and Jacquie Booth work as field services officers (classification O.A.G 12) in the Hamilton field office of the Retail Sales Tax Branch of the Ministry of Finance. Smith and Booth filed identical grievances on January 29, 1993 which read as follows. I STATEMENT OF GRIEVANCE I I grieve that the employer is unfairly disciplining me in that my assignments are unfair and unjust. I SETILEMENT DESIRED That the employer cease such assignments. The hearing on January 18 involved only the grievance of Brian Smith. We were advised that Miss Booth was on long-term disability and for that reason was unable to attend. It was agreed that her grievance may be heard at a later date. By way of background information, the service unit of the Hamilton Retail Sales Tax Branch consists of service manager Bruce Poynter, the two grievors classified as O.A.G 12, and four service representatives classified as O.A.G 11. The purpose of the service unit is to administer the Retail Sales Tax Act for the Hamilton field office. Briefly stated, the grievors are primarily involved in field surveillance activities in the Hamilton area business community (Exhibit 3), while the four service representatives perform office work to register vendors under the Act and related tasks mcluding responding to enquiries regarding the scheme of the legislation and handling a large volume of telephone enquiries. I .........""" ., "- :c l '" 3 In mid-November 1992, service manager Poynter assigned the grievors to the office to perform "cover-off duties", which allegedly was due to a number of unexpected absences of service representatives. The grievances arise as a result of the grievors' concern for the reassignment of duties in the office and, in particular, the requirement to perform tasks associated with the lower classification. The dispute focuses, in part, on whether it may be said that the cover-off duties are included in the grievor's job description. During the reassignment, there was no change in either grievor's classification, no reduction in pay and no change in hours of work. However, it is noteworthy that Brian Smith left on sick leave on January 19, 1993 and returned to work on May 10, 1993 Miss Booth left on February 1, 1993 and is still on sick leave. It is agreed that the disputed reassignment of duties ended on June 10, 1993 when Mr Smith resumed his regular duties in the O.A.G 12 classification. At the outset of the heanng, counsel for the employer raised two preliminary objections to the arbitrability of the gnevances. First, that subsequent events rendered the dispute "moot" as the remedy sought had been effectIvely implemented, and secondly, that the reassignment was not disciplinary in nature. .. In support of the mootness submission, the employer referred to the following authorities: Borowski v. Attorney-General of Canada (1989),57 D.L.R. (4th) 231 (S.C.C.); - and OPSEU (Grant) and Ministry of Correctional Services. 3097/90 (Emrich). ~- ,. J j 4 On the second submission, Mr Jarvis, on behalf of the employer provided the following undertaking to the union and to the board. 1. That the assignment of the cover-off duties for the period in question was not intended to be disciplinary or punitive in nature but rather the purpose of the assignment was to ensure adequate coverage in the office to maintain service to the public. 2. That no disciplinary notation of any kind was placed on the personnel file of either grievor with regard to the assignment. 3. That no documentation was placed on the grievor's file which would form part of Brian Smith's record for the purpose of determining the severity of discipline in the future. In support of this second objection to jurisdiction, we were referred to the following authorities: OPSEU (Bacchus) and Ministry of Correctional Services. 911/88 (Watters); OPSEU (Sundber~) and Ministry of Correctional Services. 1998/86 (Devlin); Ms. Doreen Naik (Now Taharally) and Ministry of the Attorney General. 108177 (Swinton), OPSEU (Jacobsen et al) and Ministry of Community and Social Services. 1312/86 (Roberts), OPSEU (Fitzgerald) and Ministry of Correctional Services. 1489188 (Samuels); OPSEU (Czekierda & Kubiak) and Ministry of Community and Social Services. 205/88 (Springate); and OPSEU (Union I ~ -- ;0 I,t .~ 5 Grievance} and Ministry of Health. 687/84 (Kennedy). For the union, Mr Luczay contended that the doctrine of mootness generally applies to the courts and not to arbitrations. He then goes on to distinguish the Grant decision of Vice-Chair Emrich on the basis that it was a one time occurrence and that unlike the instant grievance, it did not require an interpretation of any provision of the collective agreement. Mr Luczay's argument was that the substance of the grievance raises both the issue of improper assignment of work and discipline. The thrust of the union's argument is that the employer has violated Article 4 in its failure to post O.A.G 11 positions and violated Article 24 by its failure to place' surplus employees in these positions. He also alleged a possible violation of Article 6.1. Briefly stated, it was argued that the board's jurisdiction arises from the fact that there are alleged VIolations of the collective agreement and that the board must deal with the substance rather than with the form of the grievance. By way of remedy, the union seeks a declaration that the employer violated one or more articles of the collective agreement. On the second prehmmary objection, Mr Luczay candidly acknowledged that no discipline took place, however he reserved the right to argue at the end of the day that there was the potential for discipline. The union submitted the following authorities: Re Durham Regional Roman Catholic Separate School Board and Canadian Union of Public Employees. Local 218 (1991), 19 L.A.C. (4th) 72 (Brandt); Re Treasury Board (Transport Canada) and MacGregor (1992), 30 L.A.C. 4th 330 (Chodos); OPSEU (A. Campbell) and '\ ~.~ " J o- j 6 Ministry of Community and Social Services. 16/88 (Samuels); and McGuire and Ministry of the Attorney General. 207/78 (Swan). Under the jurisprudence of this Board, the undertaking of the employer that its actions were not disciplinary in nature nor intended to be disciplinary and the union's candid acknowledgement that no discipline had taken place would be sufficient to relieve this panel of any jurisdiction regarding an allegation of discipline. While it would appear that the grievance of Brian Smith is grounded as a disciplinary matter, the substance of the complaint involves allegations of both improper work assignment and discipline. Admittedly, the language of the grievance does not allege a violation of any particular provision of the coll~ctive agreement; but, in their written complaint to Mr Bruce Poynter dated January 19, 1993, the grievors state that union representatives indicated that the assignments violated the collective agreement. That is precisely what the union now wishes to argue. In response to the union's position, Mr Jarvis has reserved the right of the employer to lead evidence regarding the union changing the grounds of the grievance. With regard to jurisdiction, we are mindful of our statutory authority under s.19(1) of the Crown Employees Collective Bargaining Act to hear and determine "differences" between the parties arising from the "interpretation, application, administration or alleged contravention of the agreement" (our emphasis). In view of the statutory language, it may II I ~ " /_.'\ . ~ '. ." 7 be a reviewable error if we were to deny a hearing on the merits. The first issue is whether it can be said that the dispute is now "moot" The principle of mootness is not foreign to arbitrations. As is indicated by the Grant decision, it may be applied in the appropriate circumstances. However, whether the application of the principle may be appropriate will depend upon the facts of each particular case. In Re Durham, supra, arbitrator Brandt made the following relevant comments at p. 74 A useful review of the cases concerning mootness and its effects on the arbitrability of grievances is set out in Re /nt'l Nickel Co. of Canada and u.s. Jv., Loc. 6500 (1975), 9 L.A.C. (2d) 83 (Simmons). That was a job posting grievance which it was argued had become moot because the gnevor had, prior to the arbitration, obtained a promotion to a different position. It was claimed that, as the grievorwas no longer interested in the position originally claimed, there was no longer any issue to be determined and that the arbitration board lacked jurisdiction to deal with the merits. The board held that it had jurisdiction. It endorsed the general proposition that "in the interests of those concerned in the collective bargaining process where differences between parties remain unre!?(>lved to the satisfaction of the parties those differences ought to be arbitrated" (p. 86). The board reviewed a number of American cases and decided that the cases are about "equally split" on the issue as to whether moot grievances are arbitrable. In reviewing the case before it the board noted that, although the grievor no longer sought the position claimed in his grievance, it could not be concluded that he no longer had an interest in having his complaint determined through arbitration. The board stated that, in the absence of a settlement (of which there was none in the case), and having regard to s.44(1) [then s.37(1)] of the Labour Relations Act, R.S.O 1980, c. 228 all valid grievances should be resolved through arbitration (p. 88). We adopt the rationale of arbitrator Brandt in the instant grievance. There has been no resolution of the issue. The grievor continues to harbour concerns about the propriety of the assignment in the particular circumstances of this case. What is sought by the union is a specific declaration that the assignment violates particular provisions of the collective agreement. Accordingly, we must conclude that the issue is not moot. '\ I , ,A.-. l' "".:...:,.. .. I . . : I o. 8 In the result, the preliminary objections are denied and a hearing shall proceed on the merits subject to any submissions that the employer may have with respect to a significant change in the grounds of the grievance. The date for the hearing is to be set by the Registrar of the Grievance Settlement Board. DATED at Brantford, Ontario, this 27thday of July, 1994 ~ ~--~~ R. L. VERITY, Q.C. - VICE-CHAIRPERSON %' L /J ~ L L ~v' ~ ~ Lt ................... M. MILICH - MEMBER I