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HomeMy WebLinkAbout1993-0299.Merson.96-07-26 ~-C: ~ ~ --. ONTARIO EMPLOYES DE LA COURONNE CROWN EMPLOYEES DE L'ONTARIO 1111 GRIEVANCE COMMISSION DE SETTLEMENT REGLEMENT BOARD DES GRIEFS 180 DUNDAS STREET WEST, SUITE 2100, TORONTO ON M5G 1Z8 TELEPHONEfTELEPHONE (416) 326-1388 180, RUE DUNDAS OUEST, BUREAU 2100, TORONTO (ON) M5G 1Z8 FACSIMtLEfTELECOPtE (416) 326-1396 GSB #- 299/93, 1162/93 OPSEU # 93D321, 93F367 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTZVE BARGAZNING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN (Merson) I OPSEU Grievor - and - The Crown in Right of Ontario (Ministry of Correctional Services) Employer BEFORE 0 Gray Vice-Chairperson J. Carruthers Member D. Clark Member FOR THE N. Coleman GRIEVOR Counsel Gow1ing, Strathy & Henderson Barristers & Solicitors FOR THE J Benedict EMPLOYER Manager, Staff Relations & Compens'ation Ministry of Correctional Services I HEARING November 15, 1994 January 17, 1995 February 6, 1995 March 9, 1995 June 12, 1995 October 4, 1995 I - -- ----- ~ Decision The gnevor was employed as an unclassified CorrectIOnal Officer at Mill- brook Correctional Centre ("Millbrook") from September 1990 to June 30, 1993 During the last six months of that employment he filed three grievances which were referred to arbItratIOn and, ultImately, scheduled for heanng by this board commenCIng on January 31, 1994. One of the grIevances was settled that day, before the hearing began. Of the two remaIning grievances, one challenged the employer's deciSIOn In February 1993 to renew the gnevor's appoIntment effec- tive Apnl1, 1993, for only 3 months rather than for the usual 6 months. The other grIevance challenged the employer's decision in June 1993 that it would not renew the grievor's appoIntment again after the end of that month. On both occaSIons the grievor was told that the challenged decIsion was based on the fre- quency of occasions on which he had been unavailable for work. The union's posItion in these proceedings IS that on both occasIOns the al- leged concern about the gnevor's unavailabilIty was a pretext. It .says that the challenged decisIOns were really a response both to the gnevor's havIng had an inJury for wluch he receIved Workers' CompensatIOn In late 1992 and to lus havIng filed and pursued gnevances. It says that the employer's havIng based its decisions on those considerations breached both Article A of the applIcable col- lective agreement and an ImplIed reqUIrement that the employer exerCIse ItS management rIghts in good faith. On that first day of hearing we heard argument with respect to the em- ployer's prelimInary objectlon that the other two gnevances were InarbItrable We dismissed that objection In a decision dated March 23, 1994 The parties' eVI- dence and argument with respect to the merIts was then heard on subsequent dates. ThIs decision deals WIth the merits of the gnevances. ------ - 2 - Facts The gnevor completed LoyalIst College's two year certificate program m Law an4 Security m 19~9 He worked at the Royal York Hotel in Its secunty de- partment and then for the Canadian PacIfic police before he began workmg for the MIIDStry " The grievor was employed by the Mlmstry from September 1990 to June 1993 on a senes of contracts. All but the last contract were for 6 month terms. He performed the work of a correctional officer ("CO") on an irregularly scheduled basis. Some oflns work was scheduled in advance. Some arose out of calls made to lum in the hours before the sluft for wluch he was bemg called. Like other un- classIfied CO's, he was expected to be avaIlable for such calls, and to leave a telephone number or numbers at which he could be reached on short notice. The grievor's knee was injured during a Phase II training course in late October 1992 He made a Workers' CompensatIOn claim, but was able to com- plete the course. The injury recurred when he returned home from the course. He was unable to work for a period of time thereafter On December 18, 1992, a doc- tor whom the Mimstry had asked mm to see gave the grlevor a note saymg he could return to modified dutIes immediately and, If there were no problems, to regular dutIes two weeks thereafter He was gIven no work unt~l January 23, 1993, however He took the posItion that he should have been returned earlier, and on February 9, 1993 filed a grievance to that effect. That IS the grIevance whIch was ultimately settled on January 31, 1994. Millbrook had approxImately 26 to 30 unclassIfied CO's durmg the rele- vant penod. Records of theIr unavaIlabilIty were mamtamed by the schedulmg officer When an unclassIfied CO adVIsed that he or she would be unavaIlable on a partIcular day, that day was noted as an occaSIOn on which that officer was un- available When there was an attempt to call in an unclassIfied CO on a day the officer has not previously saId that helshe would be unavailable; and the officer eIther could not be reached or when reached saId helshe was un~vailable, that was noted as an occasion on wluch the officer was unavaIlable. I The fall and early wmter of 1992, the Supermtendent of Millbrook, Mr Carl DeGrandis, requested reports on the unclassified CDs' unavailabIlIty The repo~s he receIved IdentIfied several unclassIfied officers, including the ----- - 3 - gnevor, as having had greater unavailabilIty than others. Records for the gnevor indicated that in the penod of Just over three months from July 4 to October 10, 1992 he was unavailable on 19 OCcaSlOns. Most unclassified CO's were unavail- "- able on 4 occasions per month or less, on average. Officers whose records showed excessive unavallabllity were spoken to by the Supermtendent. His dISCUSSIon with the gnevor was delayed until late January 1993 by the grievor's absence from work due to the knee mjury After he returned to work, the grie'\mr was summoned to a meeting with Mr DeGrandis on January 26, 1993 The Supenntendent expressed concern about the grievor's unavailability during the period pnor to hIS absence ,due to the knee injury The grievor told Mr DeGrandis that he had given the SUp~rvI- sors two telephone numbers, hIS home number and that of lus fiancee, that he thought they had not been calhng both numbers and that he had spoken to them about that recently The Superintendent recommended that he corifirm With the schedulmg officer that the supervisors had the correct telephone numbers. The grievor subsequently did that. He came away from the meeting thinking that there was no continUIng problem about the records of lus past unavailability, which he beheved reflected, at least m part, lus supervisors' faIlures to try to reach lum at both of the telephone numbers he had given. Then current contracts for unclassified officers were due to expire at the end of March 1993 In early February, MInistry staff told Mr DeGrandiS that he would have to make renewal deCIsions earlIer than he would otherwise have ex- pected, because the Mmistry was introducing a new payroll system and needed the renewal information quickly In the case of the grievor and 3 other officers who had been spoken to about unavailabilIty, Mr DeGrandiS deCided to renew on three month contracts rather than the usual 6 month contract, to gIve them a chance to demonstrate that they could reduce their unavaIlabIlIty to tolerable levels. At a meetmg held on February 14, 1993, the Actmg ASSIstant Superm- tendent, Keven Kelly, told the grievor that Mr DeGrandIS had decided that hIS contract would only be renewed for three months, due to lus unavailabilIty The grlevor testified that Mr Kelly also told him that he did not see anything wrong WIth hIS avallablhty, and dId not understand why he was being placed on a 3 month contract when other officers' unavailabihty was worse Mr Kelly dId not .4- testify m these proceedmgs. On February 26, 1993 the grievor filed the first Of the two grIevances stIll before us (GSB File 0299/93), alleging that the em- ployer's haVIng placed hIm on a 3 month contract constItuted both unJust dISCI- pline and dlscrlmmatIOn. By letter dated June 22, 1993, John Carter, the Deputy Superintendent at MIllbrook, advised the grievor that his unclassIfied contract, which was to expire on June 30, 1993, would not be renewed. By letter dated JUne 23, 1993, Mr Carter adVIsed the grievor that he would not be required to work shifts on - June 24 and 26 for wmch he had previously been scheduled, and would be paid for those shifts The grievor spoke to Mr Carter about the letters. He testIfied that Mr Carter told him that the decision not to renew was "probably" due to lus unavaIlabIlIty On June 28, 1993, the grlevor filed the second of the two gnev- ances now before us (GSB File 1162/93), allegmg that he had been dISmIssed wIthout cause. c Mr Carter testIfied that he made the decIsIon not to renew the gnevor's appomtment to the unclassIfied servIce. He stated that the decIsIon would ordI- narily have been made by the Superintendent, but he was absent ,on vacation at the time During his examination-in-chief he said the reason for his decision not to renew the grievor's appointment was that the grievor did not suit the needs of the instItution because he was not avaIlable as reqUIred. He saId 4e also decided not to renew one other casual CO's appomtment, for the same reason. / Dunng cross-examination on February 6, 1995, Mr Carter testIfied that at a meeting held a year to a year and a half earlIer (that IS, 8 months or less af- I ter decidmg not to renew the grIevor's appomtment), he had told unclassified CO's that an acceptable level of unavaIlabIlIty was 4 days per mohth. Documents produced durmg hIS exammation-in-chIef, documents Mr Carter had testIfied that he had examined before makmg his deCIsion about the grIevor's reappomt- ment, showed that the grIevor's unavaIlabIlIty averaged 4 occasIOns per month over the penod February and March 1993, and dropped to an average of 2 occa- sions per month in the three months prior to the deCISIon not to renew In the cir- cumstances, Mr Carter had dIfficulty explammg how the grlevor's unavailabilIty had motIvated his deciSIOn. ~- ? - 5 - ..- The umon sought and the ~mployer eventually produced contracts for other unclassified CO's. These show that 3 other officers were reappointed for 3 month terms when the grIevor was. K. Dunlop, B FIndlay and T GellIng. The instItutIon's records showed that Mr FIndlay averaged 2 occasIOns of unavaIlablhty per month durIng the perIod AprIl through June 1998 Mr Gelhng averaged 2.3 OCcaSIOns of unavaIlability dunng that period. They were both re- appointed in June 1993 for a further term. It is not apparent when the deCISIon to reappoInt them was made, but the date June 11, 1993 appears handwrItten beside the employee signatures on each of their renewal contracts; Mr DeGran- dIS testified that his absence on vacation was during "the latter part of June and first part of July" 1993 Ms. Dunlop was the only other unclassified officer who was not reap- pOInted. The InstItution's records showed that she was unavaIlable on 8 occa- sions in the 5 week period between April 1 and May 6, 1993, when she began a SIck leave which apparently continued until the tIme of the decision not to reap- pOInt her Mr Carter was cross-exammed about his knowledge of the grievances the grievor had filed. He was aware of them. He said he recalled well the gnevance about the 3 month reappoIntment. He had not been at the gnevance meetings held to discuss any of the grievances, but saId he was aware of a "blow-up" In whIch Mr Merson had been "poundIng the table and yelling." He said he had heard nOIse comIng from the meeting room, and that Mr DeGrandIS had told hIm about It afterward. He testIfied that Mr DeGrandIS came out of the meeting and saId of the grIevor that "I thought he was gomg to come at me. He lost It In there" He also testified that he and Mr DeGrandIS had dIscussed that inCIdent agaIn about "a year ago." That would have been around the tIme the hearIngs In thIS matter began. Near the end of hIS cross-examinatIon, Mr Carter referred to a meetIng the grievor and a Mr Grafton sought WIth him after hIS letters of June 22 and 23, 1993 were dehvered to Mr Merson. He saId Mr Grafton asked hIm to reconsIder hIS deciSIOn. Mr Carter testIfied that Mr Grafton "saId Mr Merson 'got some bad advice,' whatever that meant." He then saId that he had assumed ~ 6- It meant that someone had told the grIevor "to be cqmbatIve with Mr DeGrandIs." Dunng lus exam1Oation-in-chief, Mr DeGrandis testified that the "actual decIsion" not to renew the grievor's appointment had been made Iby Mr Carter, but he had kept Mr Carter informed of any concerns he had about employees, includ10g the grievor He said Mr Carter would have been aware of his concerns around availabihty as they related to the gnevor and "other concerns" he had about the gnevor "as an employee." In that regard, he saId he had observed the grievor in two cIrcumstances in the period February, March and early Apnl 1993 when he beheved the grievor was "out of control." When he was. then ask~d in chIef what he meant by "out of control" he spoke at length WIthout identIfY10g the particular behaviour he had so characterIzed. Instead, he saId that the ques- tion which had arisen in his mind was whether the Institution could afford to have in Its employ someone who would lose control. He said he had posed that questIOn to lus subordinates, 1Oclud1Og Mr Carter, and had made it clear to I them that tills was a factor to be kept in m10d when it came time for renewal of contracts. "As It turned out," Mr DeGrandis saId, lIthe need to make that re- newal decIsion occurred at a time that Mr Carter was responsible for the deCI- SIOn." He said he concurred 10 the decision Mr Carter had made. When the aVailable InformatIon about the grievor's figures unavailabIlIty was put to Mr DeGrandIS 10 cross-examinatIon, he stated that the grievor's un- avaIlabihty was not a problem at the time the decision was made not to renew his contract. If he had made that deCISIon, he saId, it would have been because he did not feel the gnevor was in control of himself, not because of unavailabIlity He acknowledged that the two occasions when he felt that grievor had not been jn control of hImself were second stage gnevance meetmgs. He saId the behav- Iour he had 10 m10d consIsted of the grIevor's bang10g the table, speakIng 10 a "elevated voice" and gett10g "beet red" 10 the face He saId he remembered tlunk10g that these responses Ilhad no catalyst 10 the meet10g " Mr DeGrandis testified that in one of the meetings there was a gradual elevation of VOIces until the gnevor and a management partIcIpant were both yell10g He saId he belIeved that the grIevor's yelling was the catalyst for the yelling by the management partIcIpant. He could not recall exactly what the " - 7 - ~J grIevor was yelhng, but it was to the effect that the grievor was right and every- one else was wrong concerrung the ments of hIS grievance. Mr DeGrandis stated that at the grievance meetmg concernmg the 3 month renewal he explained why he had made hIs decIsion, notmg that the grievor had been reappointed and given a chance to demonstrate that he could - proVIde satisfactory availabihty Mr DeGrandIs testIfied that his explanatIon "should have been accepted as a reasonable explanatIon and It wasn't. I don't know why No matter how often I proVIded that answer Merson got more and more out of control." Mr DeGrandis testIfied that after obserVIng what he described as "out of control" behaviour on the part of the grlevor, he asked his subordinates whether they had observed simIlar behaVIour He said they rephed that whIle the grievor was generally a good officer, they had occaSIOnally observed SImilar conduct. He saId he dId not ask for and waS not offered any specific examples of such conduct, however The several Written appraIsals of the grievor's performance prepared by hIs supervisors durmg the course of ills employment make no mentIon of any such behaviour NeIther Mr Carter nor anyone else testIfied that the grIevor had been "out of control" in any way while performing hIS duties. Mr DeGrandIS said he dId not instruct Mr Carter not to renew the grIevor's contract. He did admit, however, that before that decision was made he had made it clear to Mr Carter that he thought the grIevor's contract should not be renewed. The eVIdence mdicates that two other members of management were pre- sent WIth Mr DeGrandis at each of the two grievance meetmgs about whIch he testIfied. Although Mr DeGrandIS' account of the grlevor's conduct at those meetmgs was clearly challenged m cross-examinatIOn, none of those other man- agement attendees was called to corroborate his account. The grievor testIfied in reply that he had not raised hIS VOIce, banged the table or said anything rude or Insultmg to anyone at eIther of the two grIevance meetmgs to willch Mr DeGrandIS referred m his testImony He remembered that at one pomt in the meeting about the 3 month reappointment, Mr Roberts (management's spokesperson and Mr DeGrandIS' superior) took a book out of his briefcase and threw it across the table at hIm, striking ros arm. He saId he -~ -..-- - 8 - "returned" the book across the table to Mr Roberts. He dId not raise his VOIce or lose control, he saId. Bill Grant was secretary of Local 341 when he attended wIth the grievor at the second stage grievance meeting concerning the delay in returning the gnevor to work followmg his absence on Workers' CompensatIOn benefits He testIfied that the grievor spoke on his own behalf at the meeting He said the grievor acted in a profeSSIOnal fashion, dId not shout, gesture or pound the table and did not appear to lose control of hIs emotions. Daniel Murphy was PresIdent of Local 341 when he attended WIth the grlevor at the second stage grIevance meetmg concerning the 3 month renewal of the gnevor's appomtment. He testIfied that dUrIng that meeting, after the grIevor had made some assertion about hIs nghts, Mr Roberts threw a copy of the collective agreement across the table at the grievor and said "where is it", or words to that effect. Mr Murphy testified that the grievor then "shd" the collec- tive agreement back toward Mr Roberts as he replied. He stated that the grievor I behaved quite well in the meeting: he was not angry or agitated, did not shout or gesture and did not appear to lose control. Mr DeGrandis, on the other hand, was agitated and visibly upset and appeared to Mr Murphy take the grievance as a personal affront. Mr Murphy said he had known Mr DeGrandis for a few years, and tms was one of the few times he saw illm become visibly upset. When questIOned further about tills m cross-exammation, Mr Murphy noted that m the tIme he had dealt with Mr DeGrandIs this was one of the few gnevances whIch had questioned the actIons ofMr DeGrandis "as an mdlvidu~l." Decision The union's closmg argument focused almost entIrely on management's June 1993 deCISIon not to renew the gnevor's appointment, whIch was the sub- Ject of the grIevance of June 28, 1993 It only brIefly addressed the February 1993 deCISIon to renew ms appomtment for 3 months rather than 6, whIch was 'I the subJect of the gnevance of February 26, 1993 We shall deal WIth that griev- ance bnefly We found Mr DeGrandIS' explanatIOn of the February 1993 deCIsion to renew the grievor's contract for 3 months entIrely credible The records available - 9 . to the Supenntendent mdICated that over the period April to December 1992, Ig- noring any absences whIle receivmg Workers' CompensatIOn benefits or on ma- terruty leave, the grIevor and 3 other unclassified officers had been unavaIlable substantially more frequently than the others. Mr DeGrandIs became obliged to decIde on reappointments early in February 1993, before there had been suffi- cient time, partIculluly m the grlevor's case, to see whether those officers would or could improve m that regard. In those CIrcumstances he renewed the ap- pomtments of those 4 unclassIfied officers on 3 month contracts. Two of the 4 were later reappointed in June 1993, after theIr availability improved, for a fur- ther 3 month term. Weare satisfied that Mr DeGrandIS made the decIsIOn in February 1993 solely for the reasons he gave m hIs testImony The grievance wIth respect to that decIsIon is dIsmIssed. With respect to the June 1993 deCIsIOn that the grievor's appomtment would not be renewed, the employer's pnmary argument was that we have no jurisdIction to review that decIsIon or provide any remedy for any supposed im- I proprIety in the reasons for it. We address those arguments later, after deahng WIth the questIOn whether there was impropriety On that issue, the employer's representative invited us to find that the decision was Mr Carter's, that un- availabihty was the "primary" reason for the decisIOn, and that whether or not tills board consIdered the reasons for It "good" or "correct", the evidence dId not estabhsh that the deCISIOn was motIvated by bad faIth or by con~iderations ad- dressed by Article A. The evidence leaves us in no doubt that the major reason, If not the only reason, for June 1993 deCISIon not to renew the gnevor's appomtment was the Supermtendent's reactIOn to the gnevor's conduct m gnevance meetings Before Mr Carter is saId to have made that deCISIOn, Mr DeGrandIS, hIS superIOr, made It clear to hIm that he thought the gnevor's contract should not be renewed. The Supermtendent made the reasons for that opmIOn equally clear to Mr Carter he felt that the gnevor had acted In what he described as an out-of-control fashIOn durmg gnevance meetmgs At that pomt the gnevor's unavailabilIty was not at a level that would have concerned the Supermtendent. Two other casual officers whom the Superin- ----- i - 10 - tendent had also decIded m February 1993 to place on 3 month contracts and who had since had unavaIlability records no better than the grieyor's were reap- pointed in June 1993 The gnevor's unavaIlabIhty had not exceeded what Mr Carter himself consIdered acceptable at any time since his return to work in January 1993 In the cIrcumstances, the claIm that unavailabIlIty was the rea- son for Mr Carter's deCIsion not to renew the appointment of this trained and expenenced casual Correctional Officer is sImply not credible. Mr Carter's as- sumption about what Mr Grafton meant when he said the grIevor "got some bad adVIce" shows he beheved that Mr Grafton and the gnevor thought that the de- ciSIOn not to renew the gnevor's appointment was related to the grievor's having been "combatIve" with the Superintendent. More importantly, it reveals that Mr Carter himself thought the decision hIS letter conveyed was related to the grievor's having been "combative" with the Superintendent during the gnevance process Article 3 of the apphcable collective agreement Identifies the provisions of that agreement that apply to unclassified staff. Those provisions mclude Article 27, wmch prOVIdes for a grievance procedure through whIch an employee and the union may advance a gnevance concerrung the alleged violatIOn of the agree- ment. The collectIve agreement requIres that there be resort to that procedure before a dispute may be referred to arbItratIOn for determmatIOn and enforce- ment of the respectIve rights and oblIgatIOns of the aggrieved employee, the un- Ion and the employer ObVIOusly, the substantive collective agreement rights wmch the employer agreed that unclassIfied staff could enJoy would be illusory If the employer could respond to an employee's attempt to enforce them through the grIevance process by decidmg it would not contmue to employ that employee The Crown Employees Collectwe Bargauung Act, RS 0 1990, c. C.50 ("the old CECBA") was m force at the tIme of the events in questIon here It prOVIded as follows 18. (2) In addition to any other rIghts of grIevance under a collectIve agree. ment, an employee claimmg, (a) that hIS pOSItion has been unproperly classIfied, (b) that he has been appraIsed contrary to the governmg prmcIples and standards, or ~- ;- - 11 - --- (c) that he has been discIplmed or msmIssed or suspended from hIs em ployment without just cause, may process such matter in accordance with the grievance procedure pro- vided m the collectIve agreement, and failing fmal determmatIon under such procedure, the matter may be processed in accordance with the procedure for fmal determinatIon apphcable under sectIOn 19 19 -(I) Every collective agreement shall be deemed to provide that In the event the parties are unable to effect a settlement of any differences between them arising from the interpretation, application, admmistration or alleged contravention of the agreement, mcludmg any questIon as to whether a mat ter is arbitrable, such matter may be referred for arbitration to the Gnev ance Settlement Board and the Board after giving full opportumty to the parties to present theIr evidence and to make their submisSIOns, shall decide the matter and its decision is fmal and bindmg upon the partIes and the employees covered by the agreement. 29 (2) The employer or any person actmg on behalf of the employer shall not, (a) refuse to employ or to continue to employ or discriminate against a person WIth regard to employment or any term or condition of em ployment because the person is exercismg any right under'this Act or is or is not a member of an employee organization, The Labour Relatwns Act has long contained a prOVISIon SImilar to sub- section 29(2) of the old CECBA. It was sectIon 66(a) of that Act when m Bedard G~rard Ontano, [1981] OLRB Rep Oct. 1338, the OntarIo Labour RelatIOns ! Board ("the OLRB") consIdered whether discharging an employee for filmg a grIevance constituted a breach of that prohibItion. It found that it dId. 30 The complainant alleged m hIS complamt and testIfied at the hearmg that he was mscharged by the Company for filing a gnevance concernmg un farr dIstributIon of overtime. In hIS submIssions before the Board, he con tended that grIevmg an alleged VIolation of a collective agreement IS a "rIght" under the Act. 31 A sunilar issue recently arose before the Board under the analogous prOVIsions of The Colleges Collectwe Bargaimng Act (the tIc. C.B. Act") in The Fanshawe College of Appl~ed Arts and Technology,[1980) OLRB Rep Oct. 1392. In that case It was alleged that an employee of the College had been discharged contrary to sectIOn 76 of the C.C.B. Act for initiating actIOn under the grievance procedure of the collectIVe agreement between the complam ant trade union and the College. The respondent m that case took the posi tIOn that the complaint should be dismIssed because even if the gnevor were to prove that hIS actIon In filing a grIevance contributed to his termmation, such action did not constitute the exerCIse of a right under the C C BAct. Section 76(2)(a) of that legIslation provides: 76-(2) - The Council, an employer or any person acting on behalf of an employer shall not, ~ - 12 - (a) refuse to employ or to continue to employ or discruninate agamst a person with regard to employment or any term or conmtIOn of employment because the person is exercIsmg any right under thIS Act or IS or is not a member of an employee orgamzatlOn, It IS evident that section 76(2)(a) IS substantIally sunilar m all materIal re~ spects to sectIon 66(a) of the Labour Relattons Act. Moreover, sectIon 66 of the C G.B. Act, whIch provides that "[e]very person is free to join an em ployee orgamzatlOn of his own choice and to participate in Its lawful actlVi tIes", IS virtually identical to se~tion 3 of the Labour Relatwns Act, whIch provides: 3. Every person is free to jom a trade union of his own choIce and to participate ill its lawful activIties. The Board held m the Fanshawe College case that "the rIght to ensure compliance with a collective agreement under procedures [such as the gflev ance procedure con tamed m the apphcable collectIve agreement] IS a funda mental "lawful activIty" of a trade umon wIthm the meanmg of sectIon 66 [of the G. G.B. Act]. "and, therefore, ruled "that the allegations of the complain ant, if proven, would constitute a vIOlation of sectIOn 76(2)(a) of The Colleges Collectwe Bargaining Act." The Board is sunilarly of the view that filing a grIevance, or causing a grIevance to be flied, is a fundamental "la~ful activ Ity" of a trade umon in which a person such as the complamant herein is free to participate by virtue of section 3 of the Labour Relatwns Act. Weare fur ther of the view that the refusal by an employer to continue to employ a per son for engagmg in such actIvity constitutes a breach of section 66(a) of the Act. It is noteworthy that in the Fanshawe College decIsion referred to m Bedard Gt- rard, the OLRB noted not only that "the nght to ensure compliance with a col- lective agreement" through the gnevance procedure set out therem IS a funda- mental "lawful actIvity" of a trade UnIon, but also that it was "no less so where aspects of that right are delegated to the aggrIeved employee himself." The employer argued that if the deCIsion not to reappomt the grievor was I contrary to a statutory prohibItion agaInst unfaIr labour practices, that was properly a matter for the labour relations tribunal charged WIth admInIstermg those prOVISIons, and not a matter wIthm the JUrISdIctIOn of this arbitration board. The UnIon argued that by operation of the Crown Employees Collectwe Bargat'mng Act, 1993, SO 1993, c. 38 (which superseded the old CECBA In late 1993 and made certain provisIOns of the Labour Relattons Act apphcable to pro- ceedings before the Gnevance Settlement Board), we have the power to Interpret and apply "human rights and other employment-related statutes", includmg the unfaIr labour practice prOVIsions of the old CECBA. We are InclIned to agree with the UnIon on thIS pomt, but find It unnecessary to deCIde It. It appears to us - 13 - that, as the union also argued, the collective agreement itself prohibIts discrimI- nation against an employee for filmg or pursuing a grievance ArtIcle A of the partIes' collective agreement provides that A.12 There shall be no discrimination or harassment practised by reason of an employee's membershIp or activity In the union. This IS another of the collectIve agreement provisIOns which apply. to unclassified staff by virtue of sectIOn 3 16 of the agreement. This provision appears to suc- cinctly comb me the effect of the statutory provisions considered by the OLRB in the Bedard G~rard deCIsion. In that regard, there can be no meaningful distmc- tIOn between the phrase "activity m the unIon" in section A. 1.2 and the statutes' references to partIcipation in the lawful activities of a union. FIlmg and pursuing indIvidual grievances 'IS a fundamental union actIvity m whICh employees who are represented by the union engage and partiCIpate Accordingly, discrimmatIOn agamst an employee for fihng or pursumg a grIevance is "dISCrImmatIOn practised by reason of an employee's activity in the uruon" wIthm the mearung of section A.1.2 of Article A of the partIes' collective agreement. ObViously, an employee's lawful, grievance-related "activity m the unIon" IS protected from bemg the baSIS of dIscnmmation no matter how the merits of the grievance are ultimately resolved m the grievance procedure or at arbItration. The employer argued that the Supermtendent's haVIng reacted to the grIevor's conduct durmg the grIevance process dId not amount to dIscrimmatmg against him for filing the grievances which were the subject of the meeting In our view, the mere fihng of a grievance IS not the only grievance-related "actIVIty m the umon" protected by section A. 1.2 ParticipatIOn in the grievance process IS equally protected WhIle there are undoubtedly lImIts to the conduct whICh may fairly be described as partICIpatIOn m the grIevance process, we are not per- suaded that the grIevor's conduct crossed those bounds, even If that conduct was as Mr DeGrandis described It m his testImony The behaVIour that Mr DeGrandIS saId troubled hIm consIsted of the grievor's banging the table, speakmg m a "elevated voice" and gettmg "beet red" ,~ m the face, reactIOns for whIch Mr DeGrandIS saId he could not see any cause He also could not understand why the grievor would not accept hIS explanatIOn of the reasons for ills deCIsion to renew the gnevor's appomtment for 3 months rather than 6 It was apparent from Mr DeGrandis' own demeanour as he gave . .,. - 14 - )' testImony on that point that he was still qUIte troubled, nearly two years after the event, that the grIevor would not believe hIm when he said that It was simply a business decision. The content and manner of Mr DeGrandIs' testimony was corroborative of Mr Murphy's testImony that Mr DeGrandis was agitated and visibly upset at the ~ime and appeared to take thIS grIevance as a personal af- front. It seems hkely that the Supermtendenfs personal feelIngs affected his perceptIOn of the conduct of others in that meeting and, perhaps, his recollection of the other meeting as well. If the grIevor banged on a table at all, it was with the book tossed across the table at mm by Mr Roberts. During cross-examination of Mr .Murphy, the employer's representatIve suggested to him that Mr Roberts' conduct in throw- mg the book was out of character He also suggested that while grIevance meet- mgs are for the most part business-like, "at times voices do get raised and tem- pers flair a bit." Mr Murphy's answers were of less significance than the ques- tions. As the employer representative's questIons suggested, it is m the nature of gnevance meetings that at times VOIces do get raIsed and tempers flair a bit and particIpants act out of character ArbItrator Shime once made these observatIOns m that respect. A grievance procedure IS designed to encourage a chalogue between the employer and the employees or between the employer and members of the trade union representmg the employees. Indeed, one does not expect that the meetings at a grievance procedure will be conducted WIth the decorum of a tea party - it is expected that complaints and grievance will be thrashed out and It is hoped that problems will be mutually resolved to the reasonable satisfactIOn of all concerned. Often the meetmgs will generate more heat than light. But that too is mtended. A grIevance procedure may also serve a useful functIOn by allowmg the partIes to ventilate. Often II they are unbur dened It IS helpful to the enterprIse. The grievance procedure IS designed both to enable the parties to reach reasonable solutions, but also to prOVIde an outlet for festering discontent. If the grievance procedure becomes the source or sprmgboard for fur ther dIscIplmary measures ansmg out of the conversatIons, and the conduct of the parties mvolved, It will not be used and that should not be permitted withm any scheme of labour relatIOns. (Re Int'l Assoc. of Fire Fighters, Local 626 and Borough of Scarborough (1972), 24 L.A.C 78 at 87) Although these observations were made to explam why a broad privilege attaches to dISCUSSIOns at grievance meetings, they are equally apt to explam more generally why other sorts of adverse consequence should not follow from emotIonal or "combative" behaviour at such meetings, except perhaps m the -- - 15 - most extraordmary CIrcumstances. In that regard, see also Re Firestone Steel Products of Canada and Umted Automob~le Workers, Local 27 (1975), .8 L.A.C (2d) 164 (Brandt) and Re Workers' Compensat~on Board (Bnt~sh Columb~a) and Workers' Compensatwn Board Employees Umon (1990), 15 L.A.C (4th) 332 (Ladner) We find that Mr DeGrandIs determined that the grievor should not be re- appomted because the gnevor was, to use Mr Carter's revealing characteriza- tion, "combative" wIth him during grievance meetings. We also find that Mr DeGrandis' announcement of that determmatIOn to Mr Carter was the proximate cause of what has been characterized as Mr Carter's decIsIon not to reappomt the grIevor We ~re satisfied on a balance of probabIlItIes that but for that announcement and Mr DeGrandIs' other commumcatIOns on the subJect, the grievor's appointment would have been renewed for a further three month period ( to bring his contract expIry date mto lIne WIth that of other officers' con- tracts), just as the appomtments of officers FInley and GellIng were We doubt that the behaVIOur complained of by Mr DeGrapdis was quite as extreme as hIS testimony portrayed. Even if It was, however, it was simply emotive but lawful combativeness in the assertIOn of the grievances withm the confines of gnevance meetings. In our VIew, dIscriminatIOn for combative but lawful conduct m assertmg a grIevance at a grievance meetmg is dIscnmmatIOn for "activity m the umon" WIthin the meaning of section A. 1.2 The employer's deciSIOn that It would not reappoint the grIevor was made and announced while the grIevor was stIll an employee entitled to the benefit of ArtIcle A and other proVISIOns of the collectIve agreement. The deCIsion was made on grounds prohibIted by the collective agreement. In most respects, the employer representative's argument that we are WIthout jUrisdIction to redress that deciSIOn even m those CIrcumstances SImply repeated the arguments he had made on the prehmmary obJectIOn, WIth whIch we dealt m our earlier deciSIOn. We do not propose to repeat the analYSIS set out m the earlIer deCIsion. There IS one aspect of hIS argument whIch was pressed more forcefully and m greater de- -' tall than it was in argument on the prelImmary obJectIOn, however Because we did not comment on it then, we shall address It now The Publ~c Serv~ce Act, R.S 0 1990, c. P 47 prOVIdes. _u ___ _ - - -- - - - ---.- . - 16 - 8. (1) A mmIster or any pubhc servant who IS desIgnated m wrItmg for the purpose by him or her may appoint for a period of not more than one year on the fIrst appomtment and for any period on any subsequent appomtment a person to a posItIon in the unclassified servIce in any minIstry over which the minIster presides. (2) Any appomtment made by a designee under subsectIOn (1) shall be deemed to have been made by hIs or her mmIster 9 A person who is appointed to a positIon in the public service for a speci fied perIod ceases to be a pubhc servant at the expiration of that period. The employer's representative observed that section 9, of the Publtc Servtce Act brmgs an unclassified employee's employee status to an end at the end of the term of his last appointment. "Before one gets to the renewal of an unclassified appomtment," he argued, "[one] must get through the expIry The renewal does not come first. The employer did not do anythIng to expire the appomtment. TIme expired the appomtment." He argued that when the contract expired, the grIevor ceased to be a public servant. Renewal could not occur until after that expIry, he argued. Therefore, the non-renewal occurred at a time when the grIevor was not protected by the collectIve agreement, and we have no JurIsdIC- tIon to address It. SImply put, the employer's argument is that because the materIal effects of the deCIsion to dIscrImmate on grounds prohibIted by ArtIcle A dId not flow from that deCIsion untIl the grIevor became a non-employee, the dIscriminatIon was not contrary to the collectIve agreement. In our VIew, making a deciSIOn on grounds prohibIted by ArtIcle A contravenes that artIcle when the deCISIOn IS made, even though Its consequences may not flow untIl a later tim~ Accordmgly, the employer's deCISIOn in June 1993 not to reappomt the grievor for a further period begmnmg the followmg month contravened section A.1.2 of the collective agreement. Accordmgly, the gnevance m file 1162/93 IS allowed. By way of remedy, the employer IS mrected to restore the gnevor to the posItlon he would have been ill but for the breach, and make the gnevor whole for any loss wmch flowed from that breach We recognIze that, haVIng regard to the nature of employment of un- classIfied staff, there may be uncertaInty about what must be done to make the gnevor whole and comply WIth the rememal order whIch we have ex- pressed In general terms Some further observatIOns may narrow the poten- tlalIssues. ~ v.' /" - 17 - We have found that but for the breach, the gnevor would have been reappoInted to the unclassmed staff With effect as of July 1, 1993, for a fur- ther 3 month term. We clearly have the JunsdIctlon to dIrect that the em- ployer reappomt the gnevor- see Miller and McPhatl, 531/82 (Venty) Sunply dIrectlng that the gnevor be appomted for a term WhICh has SInce expIred, Without more, would have no greater value to the gnevor than a dIrectIon that he be compensated for any unmItIgated loss of earnIngs and benefits referable to that penod. The more dIfficult question concerns t~e penod from October 1, 1993 to date whether there should be compensatIOn referable to all or any portIon of that penod, and whether the employer must now offer the gnevor reappOIntment to the unclassmed serVIce for a current term, as the unIon has asked. ReappOIntment for the penod July 1, 1993 to September 30, 1993 was not the only thIng the gnevor lost as a result of the employer's <;hscnmmatory conduct. He also lost the opportunIty to be consIdered for reappomtment at the end of that penod and the concommItant possibility of consIderatIOn for reappoIntment for subsequent penods The outcome of that first and any subsequent opportunItIes for reappomtment IS a matter of speculatIon only as a result of the employer's wrongdOIng In June 1993, so the fact that the assessment of loss Involves speculatIon should not be to the benefit of the employer Much has happened m the Ontano pubhc serVIce SInce July 1993 It may be that operational consIderatIOns would have led the employer to de- CIde not to renew the gnevor's appomtment at some time between then and now A claIm to that effect would have to be carefully scrutinIzed In these CIr- cumstances, but the employer should be permItted to make It If so adVIsed. I Unless the employer can prove such a clalm by objectIve eVIdence 'on a bal- ance of probabilities, however, It will be reqUIred to offer the gnevor reap- pOIntment for a current term and to compensate hIm for any unmItIgated loss of earnIngs for the entIre IntervenIng penod. CompensatIon for any unnutI- gated loss of earnIngs or benefits IS to mclude mterest to compensate for de- layed receIpt. If the gnevor IS offered and accepts reappoIntment, he IS to be treated for all purposes as though he had been contInuously employed SInce September 1990 ----- - -- '~ ;!: ",. - 18 - If the employer takes the posl1J.on that It IS not obhged to offer the gnevor reappomtment for a current term because operatlonal ,consIderatIOns would have led to non-renewal of the gnevor's appomtment at some tlme be- fore the date tlus award Issues, then WIthm 60 days of the date of thIS award (or such further penod as the partles may agree) the employer must dehver to the umon a wntten statement of all of the matenal facts on whIch It WIshes to rely m that connectIOn. The board will remaIn seIsed WIth these and any other Issues whIch the partles are not now able to settle concernmg the ImplementatIOn of the make-whole remedy awarded. Dated at Toronto tms2 6 day of July, 1996 Gray, Vice-Chair ~ ~~ dJ D Clark, Member