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HomeMy WebLinkAbout1994-1000STEWART95_05_23 ONTARIO EMPLOYES DE LA COURONNE CROWN EMPLOYEES DE L'ONTARIO 1111 GRIEVANCE COMMISSION DE JL\~ \l.J SETTLEMENT REGLEMENT BOARD DES GRIEFS ~tuQj\ . ~ ('- . \A;~ \jt C;;fi 18DDUNDASSTR~ET~/TE 2100, TORONTO ON M5G 1Z8 TELEPHONE/TELEPHONE (416) 326-1388 R:: e~Vr::DUI'EAU2100, TORONTO (ON)M5G 1Z8 FACSIMILE/TELECOPIE (416) 326-1396 ~. ,,> . ~lIir.. " I j '~.' a~," MAY 2 5 1995 GSB #, 1000/94 OPSEU # 94E166 PUbLl~ SERVICE APPEAL BOARDS IN THE HATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN OPSEU (stewart) Grievor - and - " The Crown in Right of Ontario (Ministry of Correctional Services) Employer BEFORE M. Gorsky Vice-Chairperson T Browes-Bugden Member D. Clark Member FOR THE M. Bevan GRIEVOR Grievance Officer Ontario Public Service Employees Union FOR THE J Benedict EMPLOYER Manager, Staff Relations & Compensation Ministry of the Solicitor General & Correctional Services HEARING April 10, 1995 INTERIM DECISION By letter dated June 24, 1994, R McConnell, Acting Superintendent of the Waterloo Detention Centre, Cambridge Ontario, wrote to the Grievor, Wendy Stewart, who was, at that time, a CO2 at the Detention Centre advising her that she was being termlnated from her employment with the Public Service, effective ,immediately The basis for the termination was an allegation that the Grievor "knowingly formed a relationship of a personal nature with an offender which resulted in a conflict of interest and a breach of security," which action was said to be "in direct contravention of Policy and Procedures AD1 02 05 01 and the duties and obligations [of the Grievor'sJ role as a Correctional Officer " The alleged relationship was said to have "resulted in the endangerment of one inmate, and the inclusion of another inmate in an attempt to transmit personal correspondence of a conflicting nature in a secretive manner " On June 30, 1994, the Grievor filed a grievance claiming that she had been "dismissed without just cause," and she requested "full redress, reinstatement with full compensation for all lost wages, benefits with interest " On August 29, 1994, a copy of the grievance was sent to the Registrar of the Board, and a request was made that a hearlng be arranged / 2 The hearing of the matter on the merits commenced on February 17, 1995 On the continuation of the hearing on April 10, 1995 the Union made a request that the Grievor be reinstated until the Board made a decision on the merits As agreed, written submissions were filed on behalf of the parties Mr Bevan, for the Union, stated that the application was brought after the first day of hearing "due to the time required to complete [ the] hearing II He noted that the case was "scheduled to continue into November .1995, with the likelihood of a decision coming sometime in 1996 II ? The Union relied mainly on the decision in Leeder, GSB #2498/93 etc (Finley) , and the numerous cases referred to therein At p 5 of Leeder, the jurisprudence is summarized as follows The power of the Board to grant interim relief is grounded in the Crown Employees' Collective Bargaining Act, by inclusion, in the Labour Relations Act, s 45 (8 ) [rep & sub 1992, c 21, s 23 (3) ] It has been available to the Grievance Settlement Board since February, 1994 The section reads as follows 45 (8 ) An arbitrator or arbitration board shall make a final and conclusive settlement of the differences between the parties and, for that purpose, has the following powers 1 2 3 4 To grant such interim orders, including interim relief, as the arbitrator or arbitration board considers appropriate 3 The decision contains a very thorough and helpful review of the jurisprudence of the Ontario Labour Relations Board and of the prlvate sector In relation to the granting of interim relief The Leeder decision, which is dated January 30, 1995, states, ( ibld . ) The Grievance Settlement Board's power to grant interim relief is relatively new and there lS a consequent lack of Grievance Settlement Board precedent In the Leeder case, the grievor had been discharged from his position as a registered nurse for allegedly failing to discharge professional duties assigned to him AS in the case before us, the grievor in Leeder denied the allegations ]\.1 so , as in the Leeder case, an application was made on behalf of the grievor for interim relief on the basis of his personal and financial situation, and reinstatement was sought until a final decision was made on the merits In Leeder, on the suggestion of counsel, the panel of the Board adopted two tests set out in the Ontario Labour Relations Board decision in United Food and Commercial Workers' International Union, Local 175/633 and 810048 Ontario Limited c.o.b. as Loeb Highland, [1993J OLRB REP March, 197 (McCormack) It was noted that the Loeb Highland declsion was "followed in subsequent Ontario Labour Relations Board declslons and private sector awards The tests were set out at p 2 of Leeder 4 ( a) the existence of an arguable case in the main application and (b) the balance of potential harm or inconvenience to the parties Although the tests were adopted on a suggestion made by counsel, after reviewing the jurisprudence we are satisfied that these are the appropriate tests to be applied in the case before us The cases reviewed in Leeder furnish some guidance as to the t role of a board of arbitration in deciding what circumstances should attract an interim order 1 The application for interim relief is not the time to examine the merits of the case 2 The granting of interim relief is not limited to rare and exceptional circumstances 3 The granting of interim relief in a labour relations context requires a consideration of "a very specific social and economic landscape " (Loeb Highland, supra at paragraphs 13 and 14 ) 5 4 There can be no "boilerplate" or "one-size-fits-all" approach to granting interim relief See Radio Shack, [1979] OLRB REP Dec 1220, referred to at p 7 of Leeder 5 A board of arbitrations must "consider both what harm may occur if an interim order is not qranted, and what harm may occur if it is." Reference to Loeb at p 9 of Leeder, where emphasis was added 6 The principles utilized by some courts governing the granting of interlocutory injunctions, being the test of "irreparable harm" has been rejected in favour of "a balancing of harm done to the parties " (See Leeder at p 13 ) 7 An employer's concerns "with respect to prospective discipline, compensation issues and morale, which will most probably arise every time that interim relief is requested will be part of the board's consideration but should not be reasons for rejecting a request for interim relief II (Leeder at p 13) An employer's concern that other employees (and others, such as lnmates in this case) will misinterpret the return to work of a grievor as part of the granting on an application for lnterlm relief and assume that an employee, in this case the Grievor, can "get away" with -culpable behaviour and be returned to her employment, can be dealt with by such information disseminatlng measures as the posting of appropriate notices that set out the 6 authority for the order and explain its nature There should be no automatic assumption that such notification will be incapable of conveying the message that no decision has been made on the merits, and that the return of a grievor to work is an interim measure that has no bearing on the ultimate outcome of the case 8 There should be a II showing of some specific inconvenience being suffered to the grievor apart from what may generally be presumed II Reference to United Food and Comme~cial Workers' Union and William Neilson Ltd. unreported ( Swan) dated July 16, 1993 found at p 13 of Leeder 11 9 Delay in making the application may be a factor in denying it 10 Where issues of safety are raised on an application for interim relief, "There should be evidence before the Board which would lead the Board to believe that there is a risk of unsafe conduct occurring should the employee be reinstated for the interim period pending the disposition of the main application II See United Food and Commercial Workers' International Union v. Shirlon Plastics Inc. OLRB (Shouldice) I dated August 8, 1994, referred to at pp 18-19 of Leeder, where emphasis was added Given the jurisprudence on the matter, we conclude that the facts before us demonstrate compliance with the first rule, there being an arguable case In most cases where an application is made \ 7 for interim relief in the nature of reinstatement pending a final decision on the merits, the requirements of the first rule will be satisfied by a denial of the allegation that served as the basis for the imposition of discipline or discharge This is because of the fact that it is inapropriate on such an application to enter upon an examination of the evidence relevant to a determination on the merits Many of the cases dealing with applications for interim relief observe that they may include a wide variety of requests (as did Leeder) While this is no doubt correct, the cases that have dealt with the ~ to grant interim relied to have been new power appear concerned with discharge cases where interim reistatement was being sought In such cases, if the harm to a grievor seeking reinstatement was considered to be limited to the mere loss of income, then it would be difficult to find that the "damages" to which she would be entitled if successful on the merits would not represent perfect compensation for her loss Where the evidence on the application demonstrates that a grievor has done that which is reasonable to mitigate her loss of income and has been unsuccessful in finding reasonable alternate emploYment, and that evidence also demonstrates additional consequences of the loss of income, such as, but not limited to (1 ) a genuine possibility of the loss of a home, leased or owned, for example by the exercise of power of sale 8 and the commencement of an action for possession by a mortgagee, or an appliction for termination and possession by a lessor under a lease, (2 ) that the grievor's automobile may be repossessed by the holder of the personal property security interest (especially where the grievor lives in a fairly remote area and no reasonable means of public transportation are available) to her, (3 ) the actual or threatened commencement of a court action(s) against a grievor for the recovery of monies owed, interest and court costs; and (4} that the strains brought about by the noted matters have had a serious negative impact on a grievor's marital relations; these are potential harms and inconvenience that must be balanced against the ~ potential harm or inconvenience to an employer We must view the potential harm or inconvenience in the special context of labour arbitration and not that found in the context of a court action for damages For the purpose of assessing potential harm and inconvienience on an application for interim relief, it does not matter that damages cannot be awarded in an arbitration for such potential harms as the loss of a home and the other matters mentioned For the reason stated above, unless such matters can be considered on such an application, it is difficult to envisage a case where a grievor could succeed when the request is for interim reinstatement pending a determination on the merits Delay in making an application may be a factor to be taken into consideration in balancing the potential harm or inconvenience The experience before the Ontario Labour Relatlons 9 Board is based on special considerations, such as the effect on an organizing campalgn, which are not present in an application for interim relief in another context, such as the one before us Here, we cannot see any prejudice that has been suffered by the Employer as a result of the delay in making the applicatlon, and there is no indication that the application was not made in good faith when it was realized that the hearing would not be completed until sometime in the fairly distant future The Employer was concerned about the special nature of the Detention Centre being ordered along military lines of authority We do not believe that those employed at the Centre and inmates will be unable to appreciate the special position of the Grievor if she is reinstated as a result of an application for lnterlm relief Appropriate notices can be posted which clearly disclose that the Grievor's reinstatement was made pursuant to an order of the Board and that a decision on the merits has not yet been made The eVldence of the Grievor, which was uncontradicted, was that sl1e was receiving $748 00 every two weeks from unemployment insurance benefits and that she received those benefits immediately upon her being terminated These benefits were said to expire ln May of 1995 She gave extensive evidence with respect to her unsucessful attempts to find alternative emmploYffient, WhlCh we find to be credible Her evidence, which was also credible, lndicated 10 that she will be forced to go on welfare after her unemploYment insurance is cut off The evidence indicated that the Grievor' s husband runs his own auto body business which, in the three months preceding the application, brought in approximately $133 00 a month The business has been up for sale for the past two years and has lost money in the last three years The Grievor's husband is unable to re-mortgage his business because the approval of mortgage financing is dependent on the Grievor having a guaranteed income The Grievor testified that the business will be sold under power of sale once her unemployment insurance runs out and that her husband is overdrawn at the bank in the amount of $3,000 00 The family home is mortgaged and the Grievor has missed two monthly payments, and the mortgagee has threatened legal proceedings if payment is not made immediately (Exhibit 1 at the interim hearing ) The Grievor is able to use her income tax refund to pay that amount, but in May she will be unable to meet her payments, which she has been able to maintain for seven years, and the house will likely be sold under power of sale unless she has an income from work The Grievor and her family have one automobile that has been financed (the husband's truck was sold to cover other bills) and she has missed one paYment of $548 96 and been charged a late 11 penalty (Exhibit 2 at the interim hearing) The automobile lS the only means of transportation that the Grievor and her husband have as they live in a rural area Unless paYments can be made on the automobile loan, they will lose this means of transportation The Grievor owes $1,297 92 on her VISA card and has already been sued over her inability to make paYments on it (Exhibit 4 at the interim hearing) She owes $4,744 18 on her credit union loan, and the credit union has, to this date, indicated that lt will await the outcome of her dismissal hearing Her father has loaned the family $3,500 since her dismissal so that she can buy groceries/f Her doctor has given her sample medications because she cannot afford to buy prescription drugs for her child She and her husband have had to cancel their life and home insurance policies because they can no longer afford the paYments The evidence indicated that a position was available for the Grievor which she could perform in the Main Entrance Control (MEC) The evidence also indicated that there was no inmate contact in the case of an employee in the MEC position (Exhibit 10 at the interim hearing) There was no disagreement between the parties that there was an opening in the MEC and that the Grievor could be assigned to and could carry out the duties and responsibilities of that position, and that the Grievor's position (along with at least one other) has 12 not yet been filled The MEC position is a three-person post with only two CO's currently scheduled for it In all of the circumstances we are not satisfied that returning the Grievor to work in the MEC position would create a problem for the Employer that could approximate the seriousness of the harm to the Grievor if she is not reinstated We do not have to deal with the situation where the only position available for the Grievor was one where she would have to work with inmates 'I We emphasize that each case must be decided on its own facts In Leeder, the Board concluded, at p 33-4, that the financial situation of the grievor in that case was not yet reached the stage where his situation was "problematic" (in the case of mortgage payments) The Board concluded, at p 34, that "at this point, we do not know" in referring to whether the grievor's financial circumstances would deteriorate further and allow for a reconsideration based on such a change The grievor there had an income at the time which was "approximately $13,000 above the poverty-line for a family of four in areas with a population between 30,000 and 99,000, which was $26, 126 00 in 1992 " The financial crisis, that was found to be only a potential one for the grievor in Leeder, is real for the Grievor in the case before us On the facts of this case, the balance of potential harm or 13 inconvenience is in favour of the position of the Grievor, who otherwise has had a good record with the Employer, since her date of hire on August 6, 1985 Accordingly, we grant the application for interim relief and order that she be placed in the MEC position upon receipt of this interim decision Dated at Toronto this 23rd day of May, 1995 -A'L~ 4-_L~ M R Gorsky - Vice Chairperson J4?lrV2Rg~,L T Browes ugden - Member ^~~~ D Clark - Member