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HomeMy WebLinkAbout1993-0141.Nunn.95-04-10 I 'i;...L.- 'i \ EMPLOYeS DE LA COURONNE ONTARIO CROWN EMPLOYEES DE L'ONTARIO 1111 GRIEVANCE COMMISSION DE .- . '1 j"1( v. J SETTLEMENT REGlEMENT \"-, \ BOARD DES GRIEFS {\\.C\ IIJ I~ I.. I . 180 DUNDAS STREET WEST SUITE 2100, TORONTO, ONTARIO, M5G lZ8 TELEPHONE/TELEPHONE, (416) 326-1388 180, RUE DUNDAS OUEST BUREAU 2100 TORONTO (ONTARIO) MSG lZ8 FACSIMILE ITELECOPIE (416) 326-1396 GSB# 141/93 OPSEU# 93D150 IN THE HATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN OPSEU (Nunn) Grievor - and - The Crown in Right of Ontario (Ministry of Correctional services) Employer BEFORE S Kaufman Vice-Chairperson J C Laniel Member D. Montrose Member FOR THE L. Yearwood GRIEVOR Grievance Officer Ontario Public Service Employees union FOR THE A Gulbinski EMPLOYER Grievance Administration Officer Ministry of the Solicitor General & Correctional Services \ ' HEARING February 17, 1995 \ :,j ~ 1 DECISION The grievor, William L. Nunn, a classified Correctional Officer 2, grieves that the Deputy Minister has declined to pay his lawyer's bill for the defense of criminal charges laid against him regarding his alleged conduct while on the premises of his place of employment, the Hamilton-Wentworth Detention Centre He seeks full restitution for the expen- ses he incurred in defending himself against the charges The panel was advised that the grievor was disciplined and subsequently exonerated for the alleged conduct that resulted in the criminal charges, and that ultimately the grievor was not convicted of the charges. It was advised that the employer has a discretionary policy to reimburse employees who must defend themselves against criminal charges arising from allegations of criminal conduct during the exe- cution of their duties. It was advised that the grievor ap- proached his Superintendent before the charges were disposed of in criminal court and requested financial assistance in covering his legal costs, and that the Superintendent immedi- ately irtfonned him that assistance would not be provided. The grievor's complaint is that the employer did not exercise its discretion in accordance with its past practice The panel was advised that the grievor's request was dismis- sed cursorily, that he had pursued that matter of the refusal and has yet to be advised of the reasons for it The union submitted the employer's conduct was unreasonable Prior to evidence being adduced, the employer raised a i preliminary objection as to jurisdiction and, asked the panel \ to rule on the objection before evidence was called. It sub- mitted that the policy at issue was one that was entirely discretionary and within the scope of management rights, that the collective agreement is silent on the subject of reim- bursement for legal fees, that in the past the GSB has dec- r ,\ 2 lined to award a grievor costs in lieu of legal fees and dis- bursements for representation at an arbitration hearing, that such expenses have been determined not to be damages, which might otherwise be within the jurisdiction of a board to award, and that therefore this board has no jurisdiction to consider the grievor's complaint It referred the panel to Re Ontario Public Service Employees Union and Ontario Public Service Staff Union, (1984) , 16 L A.C. (3d) 278 (Swan) and Humphries (1373/89) in ,support of its submissions. It refer- ~ red the board specifically to the following passage, at p 10 in Humphries: As there is no system of costs in the public sector, to award the grievor his costs, the Board would effectively be creating a system of costs, whereby either party could seek counsel and seek reimbursement of its costs under the guise of damages, thereby circumventing the system which has been established by by (sic) the legislature in the enabling statute and by the parties in the collec- tive agreement. for the reasons the GSB has declined to award costs, and therefore to award legal fees and disbursements The employer also submitted, and it was not in dispute, that the charges against the grievor were in respect of al- leged conduct which was not related to the performance of his duties and which was unrelated to his employment, although the alleged conduct was alleged to have taken place on the employer's premises. It referred the panel to Public Service Grievance Board cases, Callaghan, p/0009189 and Daley, P/OOO27/91 It noted that although in Callaghan the PSGB had awarded the grievor his legal costs after a particularly un- usual chain of events leading to his improper release, in \ j Daley the PSGB confirmed the j'general and long-standing poli- \ cy . not to award legal costs to grievors" It also provided us with Jones, P0012/89 as authority for the proposition that where the PSGB finds no impropriety on the part of the em- ployer, it should not deviate from its policy not to award legal costs I :l 3 \ The union submitted that none of the cases provided by the employer were on point It submitted that the employer's policy with respect to reimbursement of employees for legal fees and disbursements states that the decision must flow from the Deputy Minister. It submitted that while there may be no clear violation of the Collective Agreement, the panel's jurisdiction to hear this case on the merits is found in Art 7 of the Crown Employees' Collective Bargaining Act, 1993, S o. 1993, c 38 It placed reliance on the incorpora- tion of certain provisions of the Labour Relations Act, R S.O. 1990, c. L.2 and the exclusion of certain other provi- sions in that Act, and particularly the following in s. 7 (3) of the Crown Employees' Collective Bargaining Act, 1993: Every collective agreement relating to Crown employees shall be deemed to provide for the final and binding settlement by arbitration by the Grie- vance Settlement Board, ... of all differences . . . It submitted that under s. 45(8)1 of the Labour Relations Act an arbitration board has the power "to determine the nature of the differences in order to address their real substance" and urged the panel to hear the evidence as to the merits of the dispute. It submitted that the employer had not applied its own policy of reimbursement, and that this panel should review the circumstances of the exercise of discretion under this policy and ultimately conclude that it must be exercised in a fair and equitable manner. It submitted that until the union has an opportunity to demonstrate that the employer had not reached the threshold of the exercise of discretion, the panel cannot address the real substance of the dispute. It therefore urged the panel to hear the evidence I j The employer submitted that under the policy existing at , \ the relevant time, the authority for the exercise of discre- tion could be delegated to the level of Superintendent. It submitted that the issue of reimbursement for legal fees and disbursements is not in the collective agreement, and that reliance on an implied duty of management to exercise its 4 , discretion with respect to this policy in a particular man~er is an insufficient basis of jurisdiction. It submitted again that its cases indicate that the GSB does not have the autho- rity to order management to pay costs. Re Ontario Public Service Employees Union and Ontario Public Service Staff Union, supra, stands for the proposition that it is doubtful that a panel of the Grievance Settlement Board has the jurisdiction to award costs to an employer where the union withdraws a grievance on the morning of the ~ hearing, in the absence of statutory authority or a clear provision in the collective agreement. In that case the Board relied upon the following "sununary of the jurispru- dence" in Brown and Beatty, Canadian Labour Arbitration, 2nd ed. (1984), p. 74, para 2:1430 Collective agreements customarily provide that the costs of the arbitrator and the arbitration proceeding are to be borne equally by the parties. Counsel fees and legal costs, however, are rarely, if ever, dealt with by the collective agreement and the general view is that an arbitrator has nQ jurisdiction, in the absence of an express provi- sion in the agreement, to order that such costs be paid by the losing party Rather, arbitrators have assumed that, in view of the long-standing practice of each party bearing its own costs, and because the Labour Relations Act is silent on the matter, an express provision granting the arbitrator such a power would be required to support his making such an order. Thus, even where the cause of the delay and the resultant abortive hearing be attributed to one party, one arbitrator expressed the view that he had no authority to order that the costs associ- ated therewith be paid by that party. As this passage appears by and large unaltered in the 3rd Edition of the same publication, it remains an accurate "sum- \Ii i mary of the jurisprudence" Although it deals specifically II with the authority of an arbitrator to award costs in an arbitraton proceeding, it indicates the basis and limitation of arbitrators' and arbitration panels' authority generally. In Humphries, supra, the grievor retained a lawyer to assist him prior to arbitration, at an investigatory hearing 5 following a suspension. At the investigatory hearing, the grievor was reinstated The employer conceded that the grie- vor had been suspended without just cause The board stated that the sole issue in dispute was whether the Ministry was responsible for all costs incurred by the grievor. The board noted that the GSB has the jurisdiction to award damages flowing from an unjust suspension. It concluded that the common~law principle of placing an aggrieved party in a mone- tary position as near as possible to that in which he would have been had the contract not been breached does not make costs which are incurred for .legal representation damages. The board concluded, supra, at p. 9, "These costs are not damages which flowed from the grievor's unjust suspension, but were costs related to presenting the grievor's position at the hearing into the incident." It also distinguished legal costs from the. loss of interest arising from the delay in the payment of wages and the delay in reimbursement. The panel was advised, and it was not in dispute, that a volunteer at the Detention Centre was the complainant who caused criminal charges to be laid against the grievor, ra- ther than the employer. The legal costs of the grievor's criminal defense, it was submitted, were not incurred as a result of the employer's conduct, nor did they arise as a re- sult of a breach of the collective agreement by the employer. The panel has reviewed the policy in question. It is identified as Ontario Ministry of Correctional Services Adult Institutions Policy and Procedures, Subject Number ADI 02 03 01, April 1992, under the heading "Payment of Legal Fees" \ I i It states "The ministry may reimburse employees for legal \ costs paid to private counsel where the conduct, which is the subject of a criminal or civil proceeding, occurred while the employee was on duty" It mandates 3 conditions which must be met before payment will be made, including the employee obtaining the written approval of the appropriate executive manager and of the director, Legal Services, before retaining I 6 private counsel, and presentation of the legal account "to the ministry in the form and manner prescribed by the Ontario Legal Aid Plan" The policy stipulates Reimbursement is not an employee right but is sub- ject to the review of the deputy minister or desig- nate After the review has been completed and in the deputy minister's sole discretion, payment may be authorized in total or in part or may be denied The panel appreciates the grievor's and union's concern that the employer may not have exercised its discretion in respect of this policy in accordance with its terms, or in a fair and equitable manner, or at all. However, we note that but for the existence of the em- ployer's administrative policy regarding reimbursement for private counsel, in the absence of a term in the collective agreement which provides employees the specific benefit of reimbursement for legal costs paid to private counsel in these circumstances, no employee would be entitled to reim- bursement. We are unable to conclude that the employer, hav- ing formulated a policy which reserves to it, albeit to the deputy minister, the discretion to deny the benefit, and which does not set out the terms under which the payment will be authorized or denied, is obliged to submit its exercise of that discretion to the scrutiny of this board. This panel would expect that the employer, having created the policy, would seek to preserve an appearance of fair and equitable administration of the policy, in the interest of maintaining a positive labour relations climate. At the time this grievance arose, s 18 (1) of the \Crown \ ,; Employees Collective Bargaining Act, R S 0 1990, C C.SO 1\ applied It states that matters within the description of "the exclusive function of the employer to manage . will not come within the jurisdiction of a board" However ar- bitrary the administration of this policy may appear to the grievor and the union to have been in this case, (and we do I < - 7 not conclude that it was in fact arbitrary) this panel con- cludes that the administration of the policy falls under the exclusive function of the employer "to manage". This board derives its jurisdiction from the collective agreement and the enabling statute Notwithstanding the application of s 45(8) of the Labour Relations Act, supra, it cannot determine its jurisdiction without reference to theine The collective agreement is silent on the issue of reimbursement for legal fees and expenses Neither the Crown Employees' Collective Bargaining Act nor the Labour Relations Act contain an express provision which extends the authority of an arbitration panel to scrutinize an employer's exercise of its own discretion to reimburse employees under a discre- tionary policy The Humphries board expressed reluctance to deal with costs and reimbursement of legal fees for sound policy rea- sons which have been set out above. This panel shares t~at reluctance for similar reasons. For all the foregoing reasons, the grievance is dismissed. \ J II r --- '2: ~-t 8 Dated at Toronto this 10th day of April , 1995. - :.,..~ -A\~{ ~ - D. Montrose Employer Nominee J C Laniel union Nominee I j