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HomeMy WebLinkAbout1993-0464.Czekierda.94-04-07 '- - . ,. ,:. ','. .' ,'~'". {: . EMPLOYES DE LA COURONNE '. ,'" "';.,',/' ONTARIO .V ,," ,,;, ..'! "i, CROWN EMPLOYEES DE L'ON TA RIO :..~ ,.l~,'; ,I> "" 'l'l' " \ , ,;,;. . ",.'"" GRIEVANCE CpMMISSION DE 1111 SETTLEMENT REGLEMENT . BOARD DES GRIEFS 780 DUNDAS STREET WEST SUITE 2700 TORONTO, ONTARIO M50 lZ8 TELEPHONEITELEP"ONE {476! 325- 388 780, RUE DUNDAS OUEST BUREAU 2100 TOi'lONTO (ONTARIO) M50 7Z8 FACSIMILE iTELECQPtE (4 (6) 325-/396 "- \ 464/93 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN OPSEU (Czekierda) Grievor - and - The Crown in Right of Ontario (Ministry of Community & social Services) Employer BEFORE: A Barrett Vice-Chairperson I. Thomson Member H. Knight Member FOR THE B LeClair GRIEVOR Union Representative Ontario Public Service Employees Union \ FOR THE S Mason EMPLOYER Counsel Legal Services Branch Ministry of community & social services HEARING January 4, 1994 -.-- -;;:-;;--- ; DEe I S ION This decision concerns a preliminary objec~ion bj the employer as to the arbitrability of the grievance The objection was raised at the hearing upon prior notice, but the union representative was not fully prepared to deal with it at that time Accordingly we gave the union an oppo~tunity to submit written argument on the jurisdictional issue, and we received answering argument from employer counsel as well The nature of the grievance is set out in an attachment to the grievance form dated February 23, 1993, and is reproduced below "Attachment to the Statement of Grievance I grieve unjust appraisal and further that management did obviate the requirements of the Human Rights Act RSO 1980 and tainted an investigation evoked under the, auspices of the aforementioned Act (Human Rights Act), did further in the course of said investigation fail to observe the requirements of the Public Service Act RSO 1980 Also inclusive are CA, other Acts and legislation that may be pertinent I Settlement Five thousand as per available redress under the Human Rights Act. Inpartial (sic) investigation to be conducted as it should have been done initially Payment of one weeks pay to redress own time spent in what amounts to annulity (sic) Another weeks pay to redress management failure to act to remedy harassment and discrimination from the date of June 2, 1990 to resolution of this matter Declaration as to conflict of interest and appropriate action to be -taken by ComSoc if it is determined that a conflict of interest was clear and evident and adversely influenced the aforementioned investigation " ____n__ ---------- 2 The statement of grievance is less than a model of clarity, but the facts giving rise Lo it are not in dispute In Ju.ne, 1990, 116 Czek~erda cum~lained to the Human Pesou=ces Manager that she had been harassed by members of management due to her union activities in several instances between 1981 and 1989 Some of the instances had been the subject-matter of formal grievances which had been processed through the grievance procedure, while others had not been grieved The Human Resources Manager agreed to investigate Ms Czekierda's complaints and delegated the job to a - Senior Human Resources Officer, Ms Manship Ms Manship conducted an investigation into the allegations and reported to the Administrator of the Oxford Regional Centre in October, 1990, concluding that no harassment had taken place in the 15 instances that had been referred to her for investigation Ms Czekierda was told the results of the investigation but was not allowed to see the file until she made application under the Freedom of Information and Protection of Privacy Act Until she got the file, she did not know that the investigation had been conducted by Ms Manship, and she thought Ms Manship was in a conflict of interest situation because it is her job to advise management and participate in grievance meetings Ms Czekierda thought an outsider should have been called in to perform the investigation She also thought she should have been involved in the investigation and given an opportunity to answer the comments of people who were questioned during the investigation 1 /' ( 3 Essentially the/union wants the Grievance Settlement Board to conduct a follow-"-up investigation to deter:nine vrhether tho grievor's complaints were properly appraised in accordance with I principles of natural justice and to determine whether the conclusions reached by Ms Manship reflect the results of a proper investigation and have a logical congruence with the facts that were available at the time The ~mployerobjects to the arbitrability of tne grievance on the ground that it does not arise from the i'nterpretation, application, administration or alleged contravention of the collective agreement As employer counsel sees it, the grievance alleges that the employer investigated the grievor's informal complaint of harassment improperly by appointing Ms Manship as the investigator Counsel says that this complaint does not arise under the collective agreement because the agreement does not contain any provisions regarding the investigation of , informal complaints by employees The investigation was undertaken voluntarily by the employer which had no contractual obligation to investigate at all, much less to investigate in a particular manner In its written submissions, the union argues that the grievance may have been loosely drafted but that by mentioning the Human Rights Code it was clearly intended to be based on Article A 1 1 of the collective agreement which prohibits discrimination on grounds specified in the Code The union also contends that the grievance rests on Article A 1 2 - discrimination or harassment by 4 reason of an employee's membership or activ~ty in the union The union also references ,,'1e Fu1:::..ic Serv.i.ce Act w hic:1 con':ain3 the requirement that all public servants swear an oath that they will observe and comply with the laws of Canada and Ontario The union representative asserts that the Ministry has policies and procedures f.or dealing with human rights complaints and that essentially the investigation must be conducted fairly and in good faith In support of its proposition that this Board has jurisdiction to review actions of management which might be contrary to the Human Riqhts Code, the union representative cites LeClair, GSB #2962/90 (Dissanayake); Shaw, GSB #410/88 (Barrett), Lacasse, GSB #33/86 (Verity) , Kimmel/Leaf, GSB #1391/90 (Kaplan) , and Funq/Anand, GSB #1798/89 (Stewart) The union representative also cites private sector jurisprudence, including Re International Nickel Co. of Canada Limited (1977) 14 LAC ( 2d) !13 (Shime) for the general proposition that there is an implicit assumption that the terms and provisions of the collective agreement must be construed so as to operate reasonably and with good faith during the life of the collective agreement In rebuttal to the union argument, the employer points out that Article A 1 1 of the collective agreement prohibits discrimination on the grounds prohibited by the Human Rights Code in the application of the collective agreement For example, this article could be invoked if the employer were alleged to have denied special or compassionate leave pursuant to Article 55 to an employee because of the employee's sex, race, etc Article A 1 1 5 does not create a new right to file grievances with respect to matters outside the collective agreement Employer counsel further argues that even if the Public Service Act applied to the impugned investigation, which it does not, a Grievance Settlement Board grievance cannot be founded directly on any legislative provision other than Subsection 18(2) of the Crown Emplovees Collective Bargainino Act Subsection 18(2) gives a right to grieve "appraisals", but those are clearly performance appraisals Employer counsel cites Brown and Beatty in Canadian Labour Arbitration, at paragraph 2 1200, where the authors describe the collective agreement as "the source of definition of the subject- matter which may properly be brought before an arbitrator" and therefore "the foundation of his substantive jurisdiction" Conversely, the collective agreement "precludes the arbitration of disputes which fall outside its terms" Subsection 19(2) of the Crown Employees Collective Baroainino Act provides that any differences between the parties "arising from the interpretation, application, administration or alleged contravention of the ~ agreement" may be referred to the Grievance Settlement Board Subsection 18(2) of CECBA further guarantees all the employees the right to grieve classification, appraisals, discipline, dismissal \ and suspension Thus the jurisdiction of the Grievance Settlement Board is limited to matters arising from the collective agreement or Subsection 18(2) of the Act Employer counsel argues that the addition of the anti-discrimination article in the 1989-91 collective agreement (then Article A 1, now A 1 1 ) and Article 6 A 1 2 in the 1992-93 agreement dld not change this fundamental long-standing principle These a~ticles proh_bit discrimination in the ap?lication of the collective agre0ment, but do not confer the right to file grievances regarding matters outside the agreement or Subsection 18(2) of CECBA The Grievance Settlement Board cases referred to by the union representative all involve the application of the collective agreement or the grievance rights in Subsection 18(2) of CECBA LeClair was a discipline case, Shaw and Lacasse were dismissal cases, Kimmel/Leaf dealt with a violation of Article 55, and Fung/Anand was a competition case under Article 4 Similarly the International Nickel case involved the application of a provision in the collective agreement We do not accept the employer's submission that Article A does not in and of itself provide a ground for a grievance Certainly Ms Czekierda could have launched a grievance in June, 1990, alleging harassment by reason of union activity contrary to Article A 1 2, and her grievance would have been arbitrable even though she could not point to any other provision of the collective agreement or Subsection 18(2) of CECBA that had been violated Similarly, it is conceivable that a grievance could be founded on a violation of Article A 1 1 standing alone Ms Czekierda did not grieve in 1990 however, and her present grievance is not about harassment but about how an informal investigation was handled The employer is not obliged by the collective agreement or the Crown Employees Collective Bargaininq Act to conduct an informal investigation into an informal complaint Having elected to conduct such an !) 7 investigation, it is not bound by the rules of natural justice or procedural fairness that statutory decision-makers are bouEd by It is not every action of management that is subject to review for good faith and reasonableness It is only actions that arise from the interpretation, application, administration or alleged contravention of the collective agreement or Subsection 18(2) of CECBA that are subject to review by this Board Accordingly we uphold the preliminary objection of the employer We have no jurisdiction to arbitrate this grievance Dated at Toronto this 7th day of April, 1994 ~~ A Barrett, Vice-Chairperson 7 ~/"' p.",/ ':;;.> )-._,.: / ~---r--;t---( ---:-:.' -I- .~-( I .~omson, Member 1-' C~~, '- H Knight, Member