HomeMy WebLinkAbout1995-0131LATIMER99_06_22
OwrARIO EMPLOYES DE LA COURONNE
CROWN EMPLOYEES DE L'OwrARIO
1111 GRIEVANCE COMMISSION DE
SETTLEMENT REGLEMENT
" BOARD DES GRIEFS
180 DUNDAS STREET WEST SUITE 600, TORONTO ON M5G 1Z8 TELEPHONE/TELEPHONE (416) 326-1388
180, RUE DUNDAS OUEST BUREAU 600, TORONTO (ON) M5G 1Z8 FACS/MILE/TELECOPIE (416) 326-1396
GSB # 0131/95, 0132/95 2132/95
OPSEU # 95A500-50 1, 96C063
IN THE MATTER OF AN ARBITRATION
Under
THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT
Before
THE GRIEV ANCE SETTLEMENT BOARD
BETWEEN
Ontano Publlc Serv1ce Employees Umon
(N oella LatImer)
Grievor
- and -
The Crown m R1ght of Ontano
(Mm1stry of the Sohc1tor General and CorrectlOnal Serv1ces)
Employer
BEFORE Susan D Kaufman VIce ChaIr
FOR THE Nelson Roland
GRIEVOR Counsel
Nelson J Roland
Bamsters & SolIc!Jors
FOR THE AJamu Board1
EMPLOYER Staff RelatlOns Officer
Mimstry of the Sohcltor General and CorrectlOnal Serv1ces
HEARING June 14 1999
THIRD INTERIM RULING
The heanng mto mne gnevances filed by Noella Latimer commenced on July 29
1997 In her mne gnevances, the first of whIch was dated March 7, 1995 and the latest of
wh1ch was dated May 6, 1997, the gnevor alleged d1scnmmatlOn and harassment because
of her sex (an alleged vIOlatlOn of Art. A and of Art. 27), d1sc1plme w1thout Just cause, a
vIOlatlOn of Art. 52 10, a vlOlatlOn of the OntarIO Human RIghts Code a vlOlatlOn of Art.
A, 18 and 52 and other relevant prOV1SIOns of the Collectlve Agreement, and wrongful
demal of slck leave, mahce and bad faith (vlOlatlOn of Art. 3 and 44) The gnevor s
eV1dence pertammg to those gnevances was heard on September 29 and 30 1997 and
February 4, 1998 and March 5, 1998
On January 7, 1998 and May 25, 1998 eVIdence was heard regardmg alleged
breaches of a "Consent Order" slgned August 6 1997
From about May 26, 1998 untll about May 20, 1999, the part1es attempted to settle
the gnevances. The1r efforts were not successful On June 14 1999, they reconvened to
commence the balance of the heanng.
At the outset on June 14, 1999, the Umon requested that five further gnevances by
Ms. Latlmer, two dated Apnl 8, 1998, one dated Apnl 15 1998, and two dated March 30,
1999 be consohdated WIth the mne gnevances already before me It proposed that before
proceedmg WIth the employer's eV1dence, the gnevor's case be re-opened and that I hear
eVIdence pertammg to the Apnl 15, 1998 and March 30, 1999 gnevances, as well as
eV1dence regardmg events wh1ch were alleged to have occurred on May 9, 1999 and
wh1ch form part of a complamt by the U mon on behalf of the gnevor agamst the M1mstry
under the Ontano Labour RelatlOns Act. It submltted that the eV1dence wh1ch 1t proposed
to present pertamed to mC1dents wh1ch oC"l.lrred over approx1mately the last SlX months,
wh1ch 1t alleged represent a contmumg attempt to harass and d1scnmmate agamst the
grievor The Ulllon adv1sed that the gnevances dated March 30, 1999 deal w1th a
wrongful demal of trammg m cnS1S mterventIOn.
1
The Employer consented to the consolldatlOn of the two gnevances dated Apnl 8,
--
1998 and the Apnl 15, 1998 gnevance wIth the earller nme gnevances It obJected to the
consohdatlOn of the March 30, 1999 gnevances and to my heanng eV1dence pertammg to
them and to the alleged events of May 9, 1999
The Employer submltted that m dec1dmg whether to consolldate the two March
30, 1999 gnevances w1th the others before me, that 1 should cons1der the start date of the
heanng of the mne gnevances. It subm1tted that the hearmg of the nme gnevances had
commenced long before the May 4, 1999 Stage Two meetmg regardmg the March 30,
1999 gnevances It later subm1tted that 1f JunsdlctIOn eX1sted to consolldate them, on
pollcy grounds they should not be heard w1th the earller ones, as such succeSS1ve
gnevances would "keep poppmg up" and become an ongomg practlce A lme should be
drawn. The three new gnevances contam a d1fferent set of allegatIOns, and the demal of
cnS1S negotiator trammg was based on a d1fferent set of reasons. The prevIOUS demal had
to do w1th mformatlOn that the gnevor was seemg a psych1atnst. The demal on March
30 1999 was based on the med1cal restnctlOns prov1ded by the gnevor's phys1c1an, and
not on the mformatIOn that the gnevor was seemg a psychIatnst. It was made by a
d1fferent person, Supt. Chenard, m a d1fferent set of C1rcumstances The gnevor had
asked for trammg wh1ch took place at mght. Supt. Chenard based h1S demal on the
gnevor's med1cal restnctlOns wh1ch requ1re that she work daysh1fts only, and m the
control room.
With respect to the alleged occurrence of May 9,1999, the Employer adv1sed that
no gnevance had been filed regardmg 1t. The gnevor had not, therefore, comphed WIth
Stage Two of the gnevance procedure mArt. 22 The Gnevance Settlement Board
denves Its Junsd1ctlOn over matters that go through the Stages of the gnevance procedure
Consequently, th1S board lacks Junsd1ctIOnAo deal w1th the complamts set out m the
matenal before the Ontano Labour RelatIOns Board.
The Employer subm1tted that the gnevor was reqmred to choose her forum and
that she had filed a complamt before the Labour RelatIOns Board, wh1ch complamt deals
WIth essentlally the same allegatlOns as she 1S trymg to advance before thIS board today
2
It also subm1tted that her eV1dence should be the subJect of a separate gnevance, and
""
should be before the board at another heanng, rather than be added on to thIs proceedmg.
It subm1tted that no gnevance had been filed regardmg that occurrence, and as a result
there had been no d1sclosure through the gnevance procedure of the gnevor's complamt.
As a result, this board lacks the Junsd1ctlOn to deal wIth the subJect matter of the
complamt before the Ontano Labour RelatlOns Board. ThIS complamt contams a new
allegatlOn, that the gnevor was d1scnmmated agamst or harassed for exerclsmg her umon
nghts.
The Umon argued that one mC1dent can vlOlate more than one set of nghts, e g.
under the Human R1ghts Code, under the collectIve agreement, and under the Ontano
Labour RelatlOns Act. The Crown Employees' Collectlve Bargammg Act mcorporates
the Ontano Labour RelatlOns Act and the unfaIr labour practlces prov1slOns under 1t. The
collect1ve agreement mcorporates the Human R1ghts Code The alleged occurrence of
May 9, 1999 had to do w1th her exerclsmg her nghts under the Ontano Labour RelatlOns
Act, but 1t IS also an alleged vlOlatlOn under the collectlve agreement. The events referred
to m the complamt occurred m the context of the gnevances. The arbltratlOn hearmg IS
takmg a long tIme for completlOn, and that IS unfortunate The Umon and the gnevor
would hke some closure, as would the Employer, but until the heanng IS completed, the
allegatlOns are ansmg m a sltuatlOn which 1S a state of flux, and the gnevor 1S
expenencmg contmumg problems
Although the Umon filed an unfmr labour pract1ces complamt regardmg the May
9, 1999 mC1dent, the board should deal With all these matters as does a court m a C1V1I
actlOn, 1 e glve d1rectlOn re behavlOur wh1ch causes the gnevor to go off work as a result
of the treatment she rece1ves at work.
Separate and parallel proceedmgs to hear the matters Wh1Ch the employer 1S
opposed to consolldatmg w1l1 only lengthen the heanng and create more gnevances.
Everythmg should be heard altogether and a rulmg should be prov1ded.
The Employer has not yet started 1tS eV1dence There would be no preJud1ce to the
procedure If the gnevor were recalled. The Employer could then reply to all the eV1dence
3
The Apnl 15, 1998 and March 30, 1999 gnevances form a contmuatlOn of the
/.
problem alleged m the earher gnevances The March 30 1999 gnevances have been
dealt w1th at Stage Two under the collectIve agreement. They were not out of tlme S 48
of the Ontano Labour RelatlOns Act glves you power over the procedure to be followed.
The Employer alleges that there 1S an overwhelmmg factual d1fference between
Mr Mroczynskl's demal oftrammg and Mr Chenard's demal. Both the reasons are
med1cal The doctor s mformatlOn form does not say anythmg about attendmg a trammg
seSSlOn. The seSSlOn was to take place on a scheduled day off She works a 7 a.m. to 7
p.m. Sh1ft. The d1fference makes no dIfference The board should try to aVOId a
mult1phc1ty of proceedmgs.
The board has the Junsd1ctlOn to consolldate and hear these matters, wh1ch are
part and parcel of earher mamfestatlOns of harassment and d1scnmmatlOn agamst the
gnevor They are all mamfestatlOns of the same problem.
The Umon seeks to have a lme drawn m the form of an mtenm cease and des1st
order The unfaIr labour practIces complamt does not remove your Junsd1ctlOn. The
complamt deals w1th a d1fferent aspect of the same complamt. The complamt does not
represent an electlOn on the part of the U mono
On June 14, 1999 I Issued an oral rulmg WIth reasons. At the Employer's request,
the followmg IS a wntten statement of my rulmg and my reasons for my declSlon.
I ruled that the two gnevances dated Apnl 8, 1998 and the gnevance dated Apnl
15, 1998 would be consolldated With the nme gnevances now before me on consent of
the part1es Former Ex 9 was re-numbered Ex. 9a. The Apnl 8, 1998 gnevance allegmg
"vexatlOus remark" was numbered Ex. 9b, the Apnl 8, 1998 gnevance re refresher
course" was numbered Ex. 9c, the Apnl 15~ 1998 gnevance was numbered Ex 9d.
I ruled that the two gnevances dated March 30, 1999 would be consohdated w1th
the others then before me The allegatlOns contamed m them arose out of the context and
h1stOry of the gnevances already before me, about Wh1Ch 1 have heard substant1al
eV1dence wh1ch 1S not yet complete Where gnevances have common questlOn(s) of law
4
or fact and/or the rehef claimed m them anses out of the same transactlOn or occurrence
or senes of transactlOns or occurrences, th1s board has the d1scretlOn to order them to be
consohdated. The h1stoncal context of the March 30, 1999 gnevances would constItute
matters of fact m common wIth the earher gnevances The March 30 1999 gnevances
are alleged to be part of a contmumg senes of transactlOns or occurrences constltutmg
d1scnmmatlOn and harassment agamst the gnevor, as are the events of May 9, 1999 I do
not V1ew them as based upon an mC1dent or mC1dents and cons1deratlOns wh1ch clearly
stand alone m relatlOn to the eV1dence presented to date regardmg the first mne gnevances
and the eV1dence presented on May 25, 1998 wh1ch pertams to the Apnl 8, 1998
gnevances now consolldated on consent.
Where, through no fault of the part1es, a hearmg mto several gnevances occurs
d1scontmuously over a substantlal penod of tlme, and the bas1c matters m d1spute rem am
unresolved m the workplace untll a final dec1slOn 1S glven, 1t 1S not unheard of that further
allegatlOns of unsatisfactory behavlOur anse, and glve nse to further gnevances, wh1ch
are then Jomed or consohdated w1th the earher ones
To refuse to consohdate the March 30, 1999 gnevances w1th the ones already
before me would likely result m another board havmg to hear eV1dence regardmg the
h1StOry leadmg up to the complamts therem, wh1ch I have already heard. It would be
wasteful of the parties' tlme and money and meffic1ent, as well, to present eV1dence
regardmg the events precedmg the March 30, 1999 gnevances before two d1fferent
arb1trators of the Gnevance Settlement Board. As those events and the appropnate
mterpretatlOn of them are m d1spute there 1S a nsk of mcons1stent findmgs by d1fferent
arb1trators Such a poss1bIl1ty should be aVOIded wherever poss1ble, and can be aVOIded
by consohdatmg these two gnevances w1th the earller ones
I am also of the V1ew that the Umon's request 1S fortunately tlmed, as the
Employer has not yet commenced Its case Whlle the proceedmgs Will be extended
bnefly by the presentatlOn of further eV1dence from the Umon, and presumably reqmre a
length1er response from the Employer, 1t does not appear that the consohdatlOn requested
and granted wIll result m preJudice to the Employer
5
I also ruled that I would hear eV1dence regardmg the events of May 9, 1999 I so
ruled w1th some reluctance, as the Umon had not 1ssued a formal gnevance The
Employer had argued that the gnevor should have filed a gnevance, wh1ch should then be
heard by another arb1trator At the same t1me, 1ts concern was that It not be taken by
surpnse and not be reqmred to proceed w1thout bemg glven full partIculars. The
Employer had rece1ved a copy of the Umon s complamt to the Ontano Labour RelatlOns
Board, and had received reports as to the mC1dent complamed of. The Employer was not
requestmg further part1culars from the Umon. I adVIsed the Employer s respresentat1ve
that 1f at any pomt 1t was "surpnsed" by any of the eV1dence pertammg to the May 9,
1999 matter, and reqUlred tlme to respond, that I would accommodate such request(s),
w1thm reason.
The pnmary cons1deratlOn m determmmg whether to adm1t eV1dence 1S whether 1t
IS relevant to the 1ssue(s) to be determmed. The Umon and gnevor are allegmg a
contmumg course of harassment and d1scnmmatlOn agamst the gnevor, ofwh1ch the May
9, 1999 occurrence forms part. That occurrence appears to be relevant to the 1ssues of
whether or not there has been and/or contmues to be a course of conduct wh1ch
constltutes harassment and d1scnmmatlOn toward the gnevor and what, 1f any, mtenm or
final remedy would be appropnate On the bas1s of relevance, I ruled that I would hear
the eVidence pertammg to the May 9, 1999 occurrence However, as noted, there 1S no
gnevance before me pertammg to that occurrence, and although I ruled that I would hear
the eVIdence pertammg to that occurrence, I adVIsed the part1es that I was not assummg
jUnSd1ctlOn over the mC1dent as a gnevance
Dated at Toronto, OntarlO thIS 22nd day of June, 1999
.
---......
-
6