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HomeMy WebLinkAbout1993-0016.Merson.94-03-23 .- ---' .. ,_. ~ '-' ONTARIO EMPLOYES DE LA COURONNE CROWN EMPLOYEES DE L'ONTARIO I 1111 GRIEVANCE CpMMISSION DE SETTLEMENT REGLEMENT BOARD DES GRIEFS 180 DUNDASSTAEET WEST SUITE 2100 TORONTO ONTARIO. M5G IZ8 TELEPHONE (TELEPHONE (4 51 ]26- Ja8 180 AUE DUNDAS OUEST BUREAU 2100 TORONTO (ONTARIO) M5G IZ8 FACSIMILE ITELECOPIE (4 5) ]26-1]96 16/93, 299/93, 1162/93 IN THE MATTER OF AN ARBITRATION Under -- THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN OPSEU (Merson) Grievor - and - The Crown in Right of Ontario (Ministry of Correctional services) Employer BEFORE 0 Gray Vice-Chairperson J Carruthers Member 0 Clark Member FOR THE N Coleman GRIEVOR Counsel Gowling, Strathy & Henderson Barristers & solicitors FOR THE J Benedict EMPLOYER Manager, Staff Relations & Compensation Ministry of Correctional Services HEARING January 31, 1994 .; Decision The gnevor was employed as a CorrectIonal Officer m the unclassIfied sel'Vlce on a senes of contracts from September 1990 to June 30, 1993 Dunng that trme he filed three gnevances, wluch were referred to arbItratIon and, ul~ately, scheduled for hearmg on January 31, 1994. One of the gnevances was settled that day, before the hearmg began. ThIs deCISIOn deals With the employer's prehmmary ObjectIOn that the other two gnevances are marbItrable The Issue, then, IS whether the allegatiOns of the umon m connectIOn With the two remainIng gnevances raise a dispute whIch thIS Board has JunsdIctIOn to address The Union's Allegations The unIOn's allegatIons are these The gnevor's knee was illJured dunng a traInmg seSSIOn at work m October 1992 He made a Workers' CompensatIon claIm, and was unable to work for a penod of time thereafter After lus doctor cleared hrm to return to work m December 1992, the gnevor was not gIven the pre-scheduled and Call-ill work he ought to have receIved In January 1993 He dIscussed tlus With the Supenntendent of the illstJ.tutJ.on at whIch he was employed, at a meetmg held January 26, 1993 On February 9, 1993 he filed a gnevance about that failure to aSSIgn hIm work. That IS the gnevance whIch was settled on January 31, 1994 - -- -2- I Dunng the meetmg of January 26, 1993, the Supenntendent questIoned the gnevor's availability for work. The gnevor took the posItIon tl1at there was no problem With hIs availability The umon says that apart from the penod when he could not work due to IDS compensable mJury, the gnevor's availability had consIstently exceeded the employer's stated requIrements, Moreover, hIs availability was and had been better than that of most unclassIfied correctional officers at the mstItutIOn at whIch he was employed. The umon says that thIs would have been readily apparent from an exammatIOn of the mstItutIOn's own records DUrIng the aforesaid events, the gnevor was employed on a SIX month contract whICh was due to expIre on March 31, 1993 All oflus employment pnor to that tJ.me had been on SIX month contracts. At a meetIng held on February 14, 1993, the ActJ.ng AssIstant SuperIntendent told the gnevor that ills contract would only be renewed for three months. He also told the gnevor that he did not know for sure why that was, but speculated that It was due to the gnevor's "unavailability" The umon says that the alleged concern about the gnevor's avaliability was a pretext that the deCISIon to renew lus employment on a contract of shorter duratIOn than SIX months was really a response both to h1s haVIng been Injured and filed a compensation claIm In October 1992 and to hIs haVIng filed hIs first I gnevance But for those cIrcumstances, In other words, the ghevor's employment would have been renewed for a SIX month penod. On February 26, 1993 he gneved that, among other thmgs, he was bemg dIscnmmated agamst by beIng placed on a three month contract. That IS the first of the two gnevances ill question here (GSB #0299/93) -3- On June 22, 1993, the Deputy Supermtendent adVIsed the gnevor that hIS unclassIfied contract, whIch was to expIre on June 30, 1993, would not be renewed. The gnevor was adVIsed that the decIsIOn was "probably" due to unavailability The umon says that In the penod smce January 1993, the gnevor's availability had contInued to exceed the employer's stated reqUIrements and was and had been better than that of most unclassIfied correctIOnal officers at the Institution at whIch he was employed. The umon says the alleged concern about the gnevor's availability was agam a pretext, that the deCISIOn not to renew hIS employment was agam a response both to the gnevor's havmg been mJured and filed a compensatIOn claim m October 1992 and to IDS havmg filed hIs first two gnevances But for those cIrcumstances, ill other words, the gnevor's employment would have been renewed. On June 28, 1993 he gneved the decIsIon not to renew hIS contract. That IS the second of the two gnevances m Issue here (GSB #1162/93) Argument The employer's argument IS that the Board has no JunsillctIOn to reVIew a decIsIon about the length of an unclassIfied employee's term contract, nor a decIsIon about whether to "renew" such a contract, which IS really a decIsIOn about whether to lure again for the penod after the current contract expIres These are matters of "appomtment" It says, and by sectIon 18 of the Crown Employees Collectwe Bargammg Act R.S 0 1990, c.C 50 ("CECBA") It IS the exclusIve functIOn of management to "determIne appOIntment." -~-~_..- -4- The employer's representatIve CIted Halady, 94/78 (Swan), wmch observes that the Board's JunsdIctIon IS at first mstance statutory, and may be enlarged only by the partIes' agreement. He also referred us to Parry, 237/91 (Low), Porter, 428/90 (Brandt), Smgh/Mohamed, 721/89 (Kirkwood) andLavo~, 441/91 (Keller) and the endorsements of the DIVISIonal Court on apphcatIOns for JUdiCIal reVIew With respect to those decIsIons He argued that when these are read together, the result IS that a person cannot be "wrongfully appomted to the unclassIfied sel'Vlce" and th~t by operation of sectIOn 9 of the Pubhc Serv~ce Act, a person employed m that sel'Vlce ceases to be a publIc servant when hIS or her contract expires S~mpson, 694/85 (Kennedy), Mousseau, 1182/85 (Jolliffe), Sh~pley, 0223/86 (Samuels) and Milks, 1000/92 (Low) were CIted m support of the proposItIOn that an employee m the unclassIfied sel'Vlce has no nght to renewal and that a gnevance about non-renewal IS InarbItrable The deCISIOn m Sh~pley held that to be so even If the decIsIOn not to renew was the result of apphcatIon of a pohcy whICh was contrary to the Ontano HUTTLan Rights Code ("OHRC") In that decIsIOn the Board observed (at pages 4 and, later, at pages 9 and 10) that thIS IS not a case involvmg a violatIOn of the collectIve agreement. The 'gnevor does have nghts under the collectlVeagreement, pursuant to Article 3 and other prOVISIons, but these rIghts apply to hun only while he IS a member of the unclassUied staff. The employer lid not breach any rights whIch the grievor had durmg the. gne~or's term of employment. The substance of the gnevor's complamt IS that he lid not have employment after the term of hIS contract expIred. But he had no contractual rIght to renewal and there was no VIOlatIOn of hIS contractual nghts dunng hIS term of employment. Counsel for the Union before us argued that the sItuatlOn IS chfferent 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 Ontarw Human Rights Code 1981), the gnevor would have been renewed. WIth respect, we don't [SIC] see how that changes the sItuatlOn. Even u 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 vlOlatlOn of any contractual nght. It may be that there has been a vIOlatlOn of the Human R~ghts Code (but we emphaSIZe that we are makmg no such findmg), m whIch case the proper forum for the -_..._- -5- gnevor IS the OntarIO Human RIghts CommIssIOn. It IS the body whICh IS empowered to mvestIgate and make findmgs concernmg breaches of the Code. The employer's representative also made reference to Insanally, 7/83 (Jolliffe), a decIsIon about the scope of reVIew of a deCISIon to release a probatIonary employee under subsection 22(5) of the Pubhc Sermce Act, argumg that the hmItatIOns on our JunsdIctIon here are analogous to the hmItatIOils discussed In that decIsIon. Counsel for the umon argued that whIle the gnevor was emplc:>yed ill the unclassIfied pubhc sel'Vlce, he was covered by the prOVISIOns specIfied m Article 3 16 of the parties' collective agreement. Those mcluded Article A and ArtIcle 27 ArtIcle A.I I of the parties' collective agreement proVIdes that. There shall be no discriminatIOn practIsed by reason of race, an~estry, place of ongm, colour ethmc origm, cItizenshIp, creed, sex, sexual orientation, age, mantal status famuy status, or handIcap as defmed m sectIOn 10(1) of the Ontano Human RIghts Code (OHRC) SubsectIon 10(1) of the Ontano Human RIghts Code R.S 0 1990, c. H.19 defines "because of handicap" to mean "for the reason that the person has or has had, or IS belIeved to have had" among other thmgs "an InJury or disability for whIch benefits were claimed or receIved under the Workers' Compensatwn Act" The unIOn alleges that all or part of the employer's reasons for Its deCISIOn ill February 1993 to renew the grIevor's employment for three months rather than SIX and for Its deCISIOn m June 1993 not to renew hIS employment at all was that he had had an mJury for wluch benefits were claimed under the Workers I Compensatwn Act. If that IS true, then the decIsIons, whIch were made while the gnevor was employed and had the benefit of Article A, constItuted dIscnmmatIon contrary to that article Counsel for the unIOn noted that the gnevance dealt With m Sh~pley arose before the parties Introduced i ---.-- ---..-- -6- ArtIcle A Into theIr collectJ.ve agreement. He cIted PLtLrn, 1685/92 (Kaplan) In support of the proposItIon that the Board has JunsdIctIon to entertain a gnevance that the employer dIscnmmated agamst an employee m the unclassIfied sel'Vlce contrary to ArtIcle A In decIding not to renew the employee's employment. Counsel for the umon noted that ArtIcle 27 gIves employees the nght to pursue complamts through a gnevance procedure to arbItratIOn. Article 3 16 extends those nghts to unclassIfied staff. He acknowledged th_at by subsectIOn 18{1) of CECBA the partJ.es' collectJ.ve agreement IS deemed to proVIde that "appomtment" IS a management tIght. He argued that by necessary rmphcatIon such management nghts are subJect to the hnutatJ.on that they may not be exerCISed so as to undermme or render nugatory other nghts expressly proVIded for m the collectIve agreement. If the employer could use Its powers With respect to appoIntment to retalIate against unclassIfied employees who pursue gnevances, he subnntted, the nghts whIch the employer has agreed that unclassIfied employees may have under artIcle 27 would be rendered nugatory Therefore, a dispute about whether the employer has used Its powers With respect to appoIntment to retalIate against an unclassIfied employee for filIng gnevances IS I arbItrable, he Said, uthe events gIVIng nse to the gnevance occur, as,here, dunng the gnevor's employment. He also cIted decIsIOns In Humemuk, 614/84 (Spnngate) and McIntosh, 3027/92 (DIssanayake) In support of the propOSItIOn that the Board has JunsdIctIOn to entertam a gnevance that management has exerCIsed otherWise unfettered management nghts m a bad froth manner With respect to the employer representative's analogy With matters mvolvmg the release of probationary employees under subsection 22(5) of the Pubhc Sel'Vlce Act, counsel for the unIOn subnntted that the lnsanally decIsIon does not reflect the prevailing VIew In current deCISIons of thIS Board about the scope of reVIew m those -7- matters. He said he would be content to have that prevailing VIew apphed to the scope of reVIew of deCISIons not to renew the employment of unclassIfied staff. In reply, the employer's representative sought to distinguIsh PLtLrn on the basIs that the alleged VIolation In that case Involved accomodatIon of a handicap, whereas there has been no claim for accommodation or allegation of failure to accomodate m thIs case In tlus connection, the employer's representative made' reference to the language of the gnevances We asked hIm whether It was the employer's posItion that the language used m the gnevor's wntten gnevances precluded the umon from frammg and argumg the dIspute before us 1Il the way umon counsel had done He said the employer was not taking that posItion. Decision LIke the gnevor here, the gnevor In PLtLrn, supra, complained that he had been "unJustly msnussed" when hIS appomtment to the unclassIfied sel'Vlce as a CorrectIonal Officer was not renewed. The same employer MinIstry, through the same representative, made the same prehmmary obJection to JunsdIctIon, on the same grounds. One of the three bases for JunsdIctJ.on advanced by'the umon m that case was that the deCISIon not to renew, whIch had been made wlule the gnevor was still an employee, constItuted msCTImlnatIOn on the baSIS of handicap contrary to ArtIcle A of the parties' collective agreement. The Board made these observations In our view It is not necessary, m the determmatlOn of the employer's prehminary obJection, to make any findmgs WIth respect to the statutory and Collective Agreement entitlements, If any of persons whose contracts of employment have concluded and who have not been reappomted to the publIc service The law on thIS pomt appears to be settled. However, thIS IS not the case before us, The mstant case IS about a Collective Agreement entitlement whIch arose durmg the course of the gnevor's employment, while the gnevor was covered by ArtIcle A of the Collective Agreement. -- ~ -8- While It IS undoubtedly the case that unclassIfied employees, at the conclusIOn of thetr contract, have no new Collectlve Agreement rIghts It cannot, m our VIew be correct that the conclusIOn of an unclassIfied employee's contract of employment extmgUIshes rIghts whIch arose during the perIOd of employment when the employee was covered by the CollectlVe Agreement. Article 3 of the CollectlVe Agreement sets out varIOUS entItlements of unclassIfied employees. What if, for instance, an unclassmed employee was not paId overtune on the last day of hIS or her employment. Accorrlmg to Mr BenedIct, the next day that person would not be an employee but would be a member of the public WIth no qght to grIeve and the Board would be WIthout JunschctIOn to hear that gnevance In our VIew where a CollectIve Agreement entltlement anses durmg the course of employment, m some circumstances the indiVIdual may remam an employee for the purpose of filing a gnevance after the employment relatIOnshIp has come to an end. Whatever the deciSIOn m Parry stands for it IS not the proposItion that CollectIve Agreement and statutory rIghts of employees that anse durmg the course of employment are m every case extmguIShed at Its conclusIOn. To reach thIS result would be to deny employees m some cases, such as thIS one the benefit of the CollectIve Agreement. In thIS case the gnevor's ArtIcle A rIghts were allegedly mfrmged while he was an employee, and It IS on thIS basIS that we are taking JUrIsdIction WIth respect to hIS case we are not granting any new nghts to unclassIfied employees at the end of thetr terms of employment. Rather all we are domg is recognIZing the necessarily continuing nature of some CollectIve Agreement nghts includIng ArtIcle A rIghts whIcb- anse while an mdIvidualIs an employee. Accordmgly-, the hoe of cases relied on by the employer about the status of former unclassUied employees are of no aSSIstance to us m thIS case LikeWIse, the pre- Beresford cases are of httle value for they predate the eXIstence of Article A. While panels of thIS Board were once prepared to fmd that a proven VIOlation of the OntarIo Human RIghts Code was marbItrable, the eXIstence of ArtIcle A changes that situation for ItS incorporation into the Collective Agreement means that Its alleged VIOlatIon IS properly wIthm the JurisdIctlOn of the Board. It IS true that the factual allegatIons m PLtLrn were drfferent from those here There, the disability was perSIstent and requIred accomodatIon. The employer had offered a form of accomodatlon whIch the gnevor conSIdered madequate The gnevor was told hIs contract would be renewed If he agreed to the accomodatIOn offered. When the gnevor persISted ill hIs posItJ.on that the offered accomodatIOo was InsuffiCIent, hIs . { -9- contract was not renewed. Here, there IS no allegatIon that the gnevor reqUIred accomodatIon at the tIme of the rmpugned deCISIons Here, the allegatIon IS that the employer responded rmproperly to past events. GIven the OHRC definItIon of "because ! of handIcap" whIch the partIes have Incorporated by reference mto Article A, dIscnmmatIOn because of a past Workers' CompensatIon claim IS as much a vIOlatIOn of ArtIcle A as a faliure to accomodate an ongomg handicap The fact that there IS no Issue of accomodatIon here IS not a matenal dIstInctlon for purposes of the question now before us Here, as m P/,t/'rn, the umon alleges that a deCISIon not to renew the contract of an unclassIfied employee, made while the IndiVIdual was still employed and covered by the partIes' collectIve agreement, constItuted dIscnmmatIon contrary to ArtIcle A of that collectIve agreement. Here, as ill At/'rn, the UIDon alleges that but for the mscnmmatIon, the gnevor's contract would have been renewed. As In P/'Urn, the Issue at tlus stage of these proceedmgs IS not whether these allegatIons are true, the Issue IS whether they raise an arbItrable dIspute. In At/'rn, the Board found that It dId. We do too, and for essentlally the same reasons We conclude that the gnevance IS arbItrable In so far as It alleges breaches of ArtJ.cle A. That allegatIOn puts m ISsue the employer's motJ.vatIOn for the two Impugned deCISIOns The other grounds argued by the umon also focus on the employer's motIvatIon for those deCISIons We do not propose to determme at thIS prehmmary stage the questIOn whether we could grant the gnevor a remedy If the umon were to prove that the employer's deCIsIons Involved retahatIon for filmg gnevances or some (other) form of bad faith but not dIscnmmatIon contrary to ArtIcle A. It IS not apparent to us that any answer to that questIon would substantIally shorten or srmphfy the hearmg on the ments whIch must now follow Accordmgly, the question IS best left to -~ . ., -10- be determIned, uthat IS then still necessary, after we have heard w:hatever relevant eVIdence the parties Wish us to hear In the result, we deny the employer's prehmmary motIOn With respect to the alleged breach of Article A and reserve our decIsIon on the arbItrability of the other allegatJ.ons until after we have heard the partJ.es' eVIdence and closmg arguments With respect to all of the allegatIons Dated at Toronto tlus 23 day of March, 1994 Owen V Gray, Vice-ChaIr ~~ rJ Carruthers, Member \ ~~~ D Clark, Member I , j . I