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HomeMy WebLinkAbout1993-0833.Ladha.95-03-15 ,.~ ~. ~ ONTARIO EMPLOYES DE LA COURONNE \~ CROWN EMPLOYEES DE L'ONTARIO 1111 GRIEVANCE COMMISSION DE SETTLEMENT REGLEMENT BOARD DES GRIEFS 180 DUtyD~S STRFFT WF.<;:1;. SUITE 2100, TORONTO .ON M5G 1 I8 TELEPHONE/TELEPHONE (416) 326-1388 ~ REd~IVE" tuREAU 2100, TORONTO (ON) M'G.1Z, FACSIMILE/TELECOPIE (416) 326-1396 GSB # 833/93, 2394/93 MAR 1 6 1995 OPSEU # 93B759, 940227 PUBLIC SERVICE IN' THE MATTER OF AN ARBITRATION APPEAL BOARDS Under .- .~ THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before '" ... THE GRIEVANCE SETTLEMENT BOARD BETWEEN OPSEU (Ladha) Grievor - and - The Crown in Right of ontario (Ministry of Revenue) Employer BEFORE N. Dissanayake Vice-Chairperson FOR THE R. Anand GRIEVOR Counsel Scott & Aylen Barristers & Solicitors FOR THE O. strang EMPLOYER Counsel Legal Services Branch Management Board Secretariat HEARING March 9, 1995 ~ ,? 2 DECIS'lON The Board was seized with two grievances f,iled by - Mr. Mark' Ladha, who: is employed- 'as a Field Auditor -in the r' corporate Tax Dept. of the Ministry of Revenue. At the commencement of the hearing, counsel for the employer took,the position that one of the grievances, File 2394/93, was not .~ properly before the Board because it has been settled and/or, rendered moot. The sta-tement of grievance reads: ". ". I grieve the fact that I have been improperly evaluated on EPA Form B for the period April 28, 1992, to May 26, 1993.. I further grieve that .1 was not permitted reasonable time (only permitted balance of day of r.eceipt) to responc;l to the evaluation handed to me on the morning of December - 8, 1993 by my previous supervisor, Martin Kenney'. '- .. i The settlement desired is: The said EPA form B be removed from my personnel records and all other existing files where ever kept. . The employer takes the position that this grievance is , settled and/or moot because at stage 2 of the grievance procedure the employer agreed to, and in fact removed, the appraisal in question from all files. Counsel filed a letter dated February 21, 1994 from Mr. J.T. Marley, Director of the Special Investigations Branch to the grievor wherein he reviews the substance of the written grievance and states". . it is my decision that this grievance is allowed at stage 2 and the EPA for the period stated above has been removed from your corporate file and all other existing files as requested J,t 3 in your grievance." Counsel submits that in these circumstances, there was no longer ,any dispute to be arbitrated, because ,the impugned appraisal is no lOl)ger in existence. Reliance was placed on Re Maghsol:ldi, 392/82 (Bra.ndt) ,Re Humeniuk/Meyer, 449/89 (Kirkwood) and Re,Grant, I 3097/90 (Emrich). I ~ " Counsel for the union takes a ~ery different view. He ;0 , submits that the difference between the parties no~ the remedy sought has been fully resolved. He points out that the crux of the written grievance is an allegation that the grievor has been appraised contrary to the governing principles and standards. That, he submits, is the dispute between the ,- - parties. In his view, this dispute remains unresolved because the employer has not. admitted that the grievor was app~aised contrary to the governing principles and standards. Counsel points out in addition that during the grievance procedure, the union made the additional allegation that the improper appraisal formed part of an ongoing pattern of harassment and discrimination of thegrievor by his then supervisor Mr. Martin Kenney. Counsel submits that this allegation is also still unresolved. Counsel further points out that while the only remedy requested in the grievance form was the removal of the ,. offending appraisal, at stage two of the grievance procedure I 4 the redress sought was amended to include' a cteclar~~ion of violation, a cease and_ qesist order, and/an apology.; Counsels submits that since these ~emedies have not been gra~teQ by the , employer, they are also issues still in dispute between the, parties. "- .~ To summarize the union's;, position, counsel submits that ~ -, this grievance is ,not ,reso~ ved or moot (q) because the ". " difference between the parties, l)amelywheth,er the grievorwas appraised contrary to the govern~~g principles, and standards, is still unresolved and (b) bec~use only o~~ aspect of the remedy requested, namely the remqval of the appraisal, has been agreed to by the employer.. Couns~l subAlits that the employer was not entitled to. unilaterally "settle" the grievance, when .all the issues in di_spute have not been resolved. Counsel relied on Re KUbiak, 1854/91 (Kirkwood), Re Pelletier, 70/82 (Prichard), Re Int'l Nickel Co. of Canada, (1972) 24 L.,A.C. 51 (Weiler), Re Smith/Booth, 3809/92 (vepity) and Re Storey, 1250j.89 (wilson). -. - The common theme- in the decisions relied upon by the union- is that, for the Board, to ,decline jurisdictio~on the basis that a grievance is settled or moqt, a settlement must have been reached on all of the issues ~n dispute between the parties. The Humeniuk/Meyer decision (supra) cited by the employer counsel is ,also consistent with that line ~f cases ! ~ - 5 Thus in Re Kubiak (supra) at p 8, arbitrator Kirkwood (who also authored the 'Humeniuk 4ecision) states clearly that she saw Humeniuk as a case where settlement was, reac~ed on all issues. That leaves the Maahsoudi and Grant decisions (su\,ra) which appear to be inconsistent with the other line of decisions re'l ied upon by the- union. In Re 'Maahsoudi the , grievance alleged~ that "the appraisal made on my performance in 1980 and ~981 are- both inappropriate and 'prejudiced, and are designed for intimidation purposes, and to justify managemen:t:'s, more specifically Mr. Smith's, discriminatory behaviour towards me." By way of remedy, the grievorsought the removal of the two appraisals from his file and that the use' of ,the two appraisals '!as a means to clear personal . accounts should be haited". Subsequently, the employer wrote . to the grievor info~ing him that the two appraisals have.been removed from his file. At the hearing before the Grievance Settlement Board the employer \lndertook th~t the two appraisals "would not be relied on for any purpose in the future. II In the circumstances the Boardobserv:ed at p. 13 that lilt is difficult to understand exactly what more relief the grievor wants in respect of this particular matter"~ The Board went on to conclude: with respect, we do ,not accept the proposition th~t this Board can be turned into a forum for the expression of frustration -over alleged discrimination and harassment as an "adjunct" t,o a I 6 grievance which has to all 'intents and purposes been settled T~e grievor has achieved the objective of having the performance appraisals withdrawn from his file. He has also received' an undertaking given under oath that the Ministry will not use them in the future. We do not believe that the grievor shoUld' be "':permitted to refuse that offer of settlement, an offer which qives him . precisely what he seeks, in order to permit 'hi~ to use the Board as a torum for complaints concerning discrimination and harassment ( emphaslsadded) It is apparent there that the Board was satisfied that the grievor had received the exact relief that he had sought. What remained in issue was the dispute as to whether the appraisals in question were motivated by management's desire to harass and discriminate against the grievor. The Board concluded that that issue was "adjunct to a grievance which has for all intents and purposes been settled. II TheBoard"s reasoning for this conclusion was that the grievor was not entitled '''to use the Board as a forum for complaints concerning discrimination and harassment". The latter reasoning may have been valid at the time because that case pre-dated 'the introduction of article A.l into the collective agreement. However, it is no longer true to say that the Board is not a proper forum for complaints concerning discrimination and harassment because Article A.l clearly entitles an employee to refer to the Board complaints 7 of discrimination and harassme~t on the basis of any of the prohibited groungs set out in the provisiop. " The grievor here claims that through the appraisals in question, he was ,subjected to discrimination and harassment on the basis of his race contrary to article A.l. As noted, union counsel ~tated that the employer was put on notice of this allegation during the grievance procedure, thereby amending the scope and nature of the grievance. - I agree with union counsel that in this case, unlike in Maahsoudi, issues which are properly within the Board's jurisdiction still remain outstanding. The issue of whether tbe two appraisals were (a) contrary to the governing \ principles and standards (s~e section ~8(2) (b) of the Crown Employees collective Bargaining Act) is still outstanding. So is the- issue of whether the grievor wa~ subjected to discrimination and harassment contrary to ar~icl~ A.l, if in fact the grievance had been properly amended to include that issue. Similarly, if the r~lief sought was amended as the union claims to include a declarat~on, a cease a,nd desist order and an apology, the ~employer h~s not offered these remedies to the grievor. ThUS unlike in Maahsoudi, this grievor h~s not received the exact relief he soqght. I 8 In the circumstances of this case, it is not possible to conclude that all of the issues in dispute have been settled.. or rendered moot. Therefore, it must be determined whether it is nevertheless open to the Board to decline jurisdiction. Counsel for the employer urged the Board to follow the -' decision in Re Grant (supra). In that case, upon her return from sick leave, the grievor was placed under certain ,.. restrictions as to the type of work she could perform and the nature of her supervision was subjected to certain conditions. In her grievance, the grievor 'alleged that the conduct amounted to intimidation, harassment and discrimination on the basis of handicap . . (,. . of article A.1. Her major ~n v~olat~on concern was that in her position as psychometrist, she was denied the opportunity of working with direct client contact, despite the fact that her doctors had certified that she was fit to return to full duties. The evidence indicated that when the grievor returned to work on January 7, 1991, the management position of Chief Psychologist, was being filled on an acting basis by a bargaining unit member, Dr. Ian Shields. It was Dr. Shields who imposed the restrictions and conditions, which caused the grievor to file the grievance on January 25, 1991- On February 6, 1991, Dr~ Larry Gauzes took over as the permanent Chief Psychologist He met with the grievor to discuss her - - 9 concerns and this led to the grievor being allowed to return to full duties by the third week of :February. .The union nevertheless proceeded with the grievance and at the , , arbitration sought a declaration that from early January to mid-February 1991 article A.l had been breached In addition, there was a request that a written apology be placed on the grievor's file. .,. E At arbitration, the employer took the position that the employer's conduct was re~sonable and justified and deni,ed any wrong,-doing,o However, through counsel, management exp~essed regret over any upset cause4 to the ~rievor ~y its actions during Dr! Shields' tenure as ~cting Chief Psyqholoqist. While contesting the me~its of the grievance, ~owever., the employer also took the position that since t~e restrictions and conditions imposed oIJ. the grievor we,re lifted within tij,ree weeks of the filing of the grievance, there was no issue outstanding which had not been rendered moot. The Board at p. 7-8 concluded as follows: On review of the evidence ~nd in light of the relief claimed in the grievance, the Board concluded that the ~ssues raised were moot. Given that the Employer has expressed its regret over upset, caused to the grievor and given that the jurisprudence of the Board is described both by the, ,- union and the Employer's counsel as not favourable to the issue of an apology as a remedy, the Board concluded that management t s expression of regret could well be more than the Board might be able to order, even if the merits of the grievance on the matter of the declaration were upheld. More 10 germane, is that the -grievor has been working free of any objectionable restrictions or conditions for nine months at the time of the hearing At most,.j if a declaration were to issue, it could only pertain to a very short time frame from -early January until mid-February when the grievor was allowed to resume the full range of her duties. However, there would have to be an enquiry into the nature and extent of' - the grievor's illness, how, that i11nesE? impacts l.lpon the duties of the grievor's position, what information the Employer sought or is entitled to seek in respect to the effect of the grievor's -illness upon-her job, and ,~ how that ill~ess should be accommodated reasonably at the workplace , , The Board went on to observe that if the merits of the grievance were to be determined, a number' of factual and legal issues would have to be dealt with. At p. 11 the Board concluded: There are certainly complex and important issues involved if the merits of the parties' arguments were canvassed. However, we must weigh the benefit of a decision on the points of law in a context which h'as rendered the matter of more . aqademic interest than practical significance, against the real co'sts of five days of hearing scheduled for ~his case. The Board concluded that the costs outweighed the benefit as the matter is. essentially moot. The gr ievor ha,s been working without objectionable constraints since mid- February, whiph is less than a month from the filing of her grievance If 'we were to undertake a full investigation of the merits of this case, the harmony of her working relationship, which was at the heart of the remedies sought in her grievance, could well be disrupted through the unearthing of past events The issues raised in this case are certainly important, but should be fully canvassed in different circumstances when the relief sought has not been provided already For the reasons given, the Board declines to exercise its jurisdiction to hear the merits of the grievance on the ground that the matter is moot. " ...: 1.1 I observe that some of the concerns expressed by the Board in Re Grant have no application in this case The union has indicated that even ~f this grievance is held to be " settled or moot, it would be leading evidence relating to the circumstances surrounding this appraisal in order to support the other grievanqe, file no. 0833/93, to demonstrate that the grievor was subjected to a pattern of discriminatory conduct. [Re Leclaire, 2962/90, (Dissanayake)J.. Therefore any cost '" saving resulting from a refusal by the Board to hear this grievance may not ,be very significant. Besides, u~like in Re Grant, in the cou~se of' hearing, the other grievance the past events r~lating ~o the appraisal in question are going to be unearthed anyway. Therefore that is not a significant consideration in this case,. While I have disti~guished the practical considerations in this case, it is my view that the Grant deci.sion is inconsistent with the line ,of Grievance settlement Board cases .' , reviewed earlier in this award which hold that for a ~rievance to be settled or moot, all of the issues ih qispute must have I I I been settled. It appears th~t those decisions were not I brought to the attention of the panel, in Re Grant, since it does not refer to any prev~ous Grievance Settlement Board decision. - '" ,~ 12 ~, I prefer the approach in the line of cases whichs~pports I the proposition that a grievance is not settled or moot unless I I all issues have been resolved Employer counsel commended-to me the Re Grant approach of engaging in a c9st/benefit analysis. I agree that.it is a practical 'approach~which has much appeal in these times of economic restraint. However, it is my view that in exe~cising its manda~e under the ~ct, the Board does not, hav~ that flexibility and discretion ~o use a c<< cost/benefit analysis to, decline jurisdiction over ma,tters which are clearly within its statutory authority. The gr ievor here has exercised his statutory right und~~ section 18(2) of the Act to grieve that he was appraised cont~ary to governing principles and standards and he has sought -a number of remedies. The only issue resolved is that the employer has agreed to remove the two appraisals-in question. It has not conceded that the appraisals, were in any way improper. Nor has it agreed to any of the other remedies requested. And the union is not prepared to give up on those. Since those issues are still in dispute and since they are properly within the Board's jurisdiction, it is my view that the Board is bound to exercise its jurisdiction This is not to say that I am unmindful or uncaring about ~ the costs and the efficiencies involved in hearings before the Board. However, that is a responsibility the parties must bear. It is up to the parties to reasonably consider whether \;; t r-'~ 13 the issues still ,outstanding are serious and important enough to justify litigation arid the resulting costs in money and time. At the hearing union counsel indicated that if' the employer was prepared to admit that the appraisals in quel?tion were contrary to the governing principles ahd standards, and to Undertake not to repeat that violation, the grievance could be considered settled. In response, employer counsel clearly indicated that the employer was not willing to make any suc~ ". concession. What this demonstrates is that both parti,es consider the outstanding., issues to be important ~nough and neither side is prepared to back-off. As long as that situation prevails the grievance is still outstanding ang the Board must exercise its jurisdiction. For those reasons, the employer ..s motion for a rUling that the grievance is moot or settled is denied. - Dated this 15th day of March, 1995 at Hamilton, Ontario ~~~ Nimal V. Dissanayake Vice-Chairperson - l___