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HomeMy WebLinkAbout1993-0931.Mungall.94-06-16 ., ~ ......~i!. ( ( ~ . ~ , ONTARIO EMPLOYES DE LA COURONNE CROWN EMPLOYEES DH'ONTARIO GRIEVANCE COMMISSION DE 1111 SETTLI:MENT . REGLEMENT BOARD DES GRIEFS - 180 DUNDAS STREET WEST SUITE 2100, TORONTO ONTARIO. M5G 1Z8 TELEPHONE/TELEPHONE (416) 326-1388 lSa, RUE DUNDAS OUEST BUREAU 2100. TORONTO (ONTARIO) M5G lZ8 FACSIMILE ITELECOPIE (476) 326-1396 931/93 IN THE MATTER OP AN ARBITRATION Onder THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD I BETWEEN OPSEU (Mungall) Grievor - and - The Crown in Right' of ontario ( (Ministry of Housing) Employer ! BEFORE: S stewart Vice-Chairperson J. Carruthers Member J. Campbell Member FOR THE N. Luczay GRIEVOR Acting Co-ordinator of Grievances Ontario Public Service Employees Union FOR THE J. Beamish EMPLOYER Counsel Miller, Thomson Barristers & Solicitors HEARING January 12, 1994 / ;. !> -i I f ( ( \ ) DECISION At the outset of the hearing counsel for the Employer made a preliminary objection to the Board's authority to hear and determine the grievance on the basis that the grievor, Mr. D. Mungall, is not covered by a collective agreement. It was agreed by the representatives of the parties that the Board should \ decide this matter prior to hearing the merits of the grievance The facts necessary for the disposition of this preliminary objection were not in dispute. The Employer, Metropolitan Toronto Housing Authority, is a Crown agency. Mr. Mungall is a member ofl a ba!gaining unit of employees. who perform security duties. The Ontario Public Service Employees Union was certified as bargaining agent to represent this unit on March 22, 1991. A decision of the Labour Relations Tribunal to settle the outstanding issues in dispute for a first collective agreement was issued on October 5, 1993. At the time of hearing a first collective agreement between the parties has yet to be entered into. Mr. Mungall's grievance is dated February 3, 1993 and \ alleges that he was disciplined without just cause. The grievance relates to a three day suspension imposed on Mr. Mungall in May, 1992. It was common ground that Mr. Mungall took r issue with the imposition of the discipline at the time that it was imposed The matter was referred to the Grievance Settlement Board by the Union by letter dated October 16, 1992. Mr. Luczay -- , ~ , ! ~ 2 advised that a grievance form was signed and forwarded to the Board at the request of the Registrar, which accounts for the grievance form postdating the request from the Union for referral to arbitration. The issue to be determined is the authority of the Grievance Settlement Board to hear and determine this grievance. I It is the position of the Employer that in the absence of the grievance being filed pursuant to a grievance procedure in a collective agreement between the partie~, this Board has no jurisdiction to hear and determine the grievance. It is the position of the Union that the Board has authority to hear and determine the grievance by virtue of the provisions of the Crown Em~loyees Collective Bargaining Act. J The relevant provisions of the Crown Emoloyees Collective Bargaininq Act are the following: 18.-(1) Every collective agreement shall be deemed to provide that it is the exclusive function of the employer to manage, which function, without limiting the generality of the foregoing, includes the right to determine, (a) employment, appointment, complement, organization, assignment, discipline, dismissal, suspension, work methods , and procedures, kinds and locations of equipment and classification of positions; and (b) merit system, training and development, appraisal and superannuation, the governing principles of which are subject to review by the employer with the bargaining agent, - and such matters will not be the subject of collective bargaining nor come within the juris- ~ - I \ / l 3 diction of a board. (2) In addition to any other rights of grievance under a collective agreement, an employee claiming, (a) that his or her position has been improperly classified; (b) that he or she has been appraised contrary to the governing principles and standards; or (c) that he or she has been disciplined or '-. dismissed or suspended from his or her employment without just cause, may process such matter in accordance with the grievance procedure provided in the collective agreement, and failing final determination under such procedure, the matter may be processed in accordance with the procedure for final determination applicable under section 19, R.S.C. 1980, c.108, s.18 " 19-(1) 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, admin- istration or alleged contravention of the agreement, including any question as to whether a matter is arbitrable, such matter may be referred for ) arbitration to the Grievance Settlement Board and the Board after giving full opportunity to the parties to present their evidence and to make their submissions, shall decide the matter and its decision is final and binding upon the parties and the employees covered by the agreement ') I I It is the position of the Union that as this grievance I relates to discipline, a matter specifically referred to in section 18(2) of the Crown Employees Collective Baraaining Act, Mr. Mungall has the right to pursue a grievance with respect to this matter notwith~tanding the fact that there is no collective agreement since subsection 18(2) provides for a grievance "in addition to any other rights of grievance under a collective -- l ( I 4 agreement" I Mr. Luczay referred the Board to the decision of thfs Board in Ministrv of Transportation and OPSEU (Keelinq), 45/78 (Pritchard)\ In that decision the Board rejected the Employer's ,submission that the grievance ought to be dismissed by virtue of the fact that it was 'not filed in a timely manner in accordance with the mandatory time limits contained in the collective agreement The Board determined that because the grievance related to a ~ischarge, a matter specifically referred to in section 18(2) of the Crown Emplovees Collective BarqaininqAct, the grievor had the right to pursue the matter notwithstanding the fact~that the grievance was not filed in accordance with the ~ mandatory time limits contained in the collective agreement. An / application for judicial review in connection with this decision was dismissed by the Divisional Court Re Attorney General for ontario and Keeling et ale (1980) 30 O.R (2d) 662. On behalf of the Employer, Mr Beamish argued that section 18(2) while providing for rights "in addition to any I other rights of grievance under a collective agreement", does no_t allow an employee of a Crown agency to pursue a grievance relating to the matters outlined in section 18(2) in the absence of a collective agreement. He argued that if the Legislature had intended to provide for such a right it would have been explicitly expressed, such as in the case of S. 61 5 of the ( l I \ 5 Canada Labour Code, wherein the right of employees who are not covered by a collective agreement to challenge a dismissal is specifically provided for. e Subsequent to the hearing in this matter the panel became aware of decisions of this Board that have addressed the issue before us but were not been referred to us by the parties. Accordingly, these decisions were forwarded to the representatives of the parties who were given an opportunity to provide further submissions Mr. Beamish responded by letter dated March 25, 1994 and Mr. Luczay responded by letter dated May 6, 1994. The decisions of this Board that address the issue to be determined here are Ministrv of Health & OPSEU (Rabak/oliveiral 987/90 (Watters), Ministrv of Health & OPSEU (Wriqhtl 849/90 (Verity) and Metro Toronto Convention Centre corporation and OPSEU (Horne) 1880/89 (Simmons). The first decision of the Board to deal with the issue\ is the last cited decision, Horne. In that case there had been a \ bargaining relationship and a collective agreement pursuant to I the Labour Relations Act Subsequently the employer became a Crown agency by virtue of legislation and the collective agreement ceased to be binding The union made application for and was granted representation rights pursuant to the Crown i' I ( ) 6 Employees Collective Bargaining Act Prior to the parties entering into a collective agreement an employee was discharged and filed a grievance alleging that his discharge was without ( just cause. As in the case at hand, the employer objected to the Board's jurisdictio~' to determine the grievance on the basis that there was no collective agreement between the parties at the time of the grievance. The Board dismissed this objection, ruling that its jurisdiction to determine the matter was derived from s 18(2) of the Act. At pp. 13-14 of that decision the Board states as follows: In this connection, s.18(2) extends certain rights directly to employees as opposed to the parties and it expressly states that, "in addition to any other rights of grievance under a collective agreement, an employee claiming," that he has been disciplined or dismissed may process such matter in accordance with the grievance procedure provided in the collective agreement. While we recognized that the existence of a collective agreement would have assisted the parties in setting out the procedure to b~ followed while processing the grievance that proble~, if there was one, was not ~aised as an issue. And, in any event the grievor, the Union, and the Employer appeared before the Board so if there had been a procedural problem, of which we were not informed, it has been overcome because everyone concerned with this matter was in attendance at the hearing. Moreover, the Court decisions cited above appear to ( support the position that employees, as opposed to parties, have substantive rights by virtue of s.18 which cannot be taken away by the collective agreement. Once an employee can establish that he falls within the jurisdiction of the Act, then it is our view that s18 extends certain protections directly to the employee. In Rabak/Oliveir~ and Wright, supra, this Board dealt with similar situations and reached the same conclusion as in Horne Essentially, this Board has concluded that the existence '- " . ( \ .., 7 of a collective agreement is not a prerequisite for its c) jurisdiction to determine a grievance relating to one the matters enumerated in s. 18(2) of the Crown Employees Collective Barqaininq Act In his submissions of March 25, 1994, Mr. } Beamish took the position that these cases are incorrectly decided. He acknowledged that the cases cannot be distinguished from the .case at hand Mr. Luczay submitted that these decisions support the Union's position that this Board has jurisdiction to determine Mr. Mungall's grievance ) As was acknowledged in Horne, the proposition that a grievance may be pursued to arbitration in the absence of a I collective agreement is a surprising one from the perspective of the private sector. However, as that decision's review of "- judicial interpretations of s. 18(2) of the Crown Employees Collective Bargaininq Act indicates, the pursuit of a grievance relating to the matters referred to in that section exist independent of any rights that may be contained in a collective agreement. We are unable to accept Mr Beamish's submission that the line of cases referred to has been incorrectly decided. It is our conclusion that we have jurisdiction to determine Mr. Mungall',s grievance alleging unjust discipline notwithstanding the lack of a collective agreement between the~parties at the time of the grievance The Employer's objection to our -- (...' oil- l 8 jurisdiction is dismissed. A hearing to deal with the substance of the grievance is to be convenened by the Registrar in consultation with the representatives of the parties. \ Dated at Toronto, this 16th day of June, 1994. ! ~ o.u..>1l..u1' S.L. Stewart - Vice-Chairperson ( ~J. Carruthers"" Member ) "I DISSENT" J. Campbell - Member r