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HomeMy WebLinkAbout1996-1471NIELD96_10_21 ONTARIO EMPLOYES DE LA COUllONNE CROWN EMPLOYEES DE L ONTARIO GRIEVANCE CpMMISSION DE 1111 SETTLEMENT REGLEMENT BOARD DES GRIEFS 180 OUNDAS STREET WEST SUITE 2100 TORONTO, ONTARIO. Msa rZ8 TELEPHONE/TELEPHONE (416) 326-1388 180. RUE DUNDAS OUEST BUREAU 2100 TORONTO (ONTARIO) M5G lZ8 FACSIMILE /TELI: COPIE (416) 326-1396 GSB # 1471/96 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN OPSEU (Nield) Grievor - and - The Crown in Right of Ontario (Ministry of Labour) Employer BEFORE R. J. Roberts Vice-Chairperson FOR THE K. Waddingham GRIEVOR Counsel Ryder, Wright, Blair & Doyle Barristers & Solicitors FOR THE L Marvy EMPLOYER Counsel Legal Services Branch Management Board Secretariat HEARING October 15, 1996 1 AWARD I. Introduction. This case came to the Board by way of an urgent request for mterim relief filed bv the union on October 11, 1996 Accordmg to this request, on July 16, 1996, the grievor an OccupatIOnal Health and Safety Inspector wIth the Ministry of Labour, was required by the employer to divest hImself of hIS part-ownershIp m a business that, m the opimon of the employer, placed hIm in a conflIct of interest. The gnevor disagreed that a conflIct existed and on August 6 1996, grIeved the actlon of the employer Thereafter, the employer advIsed hIm that Ifhe did not comply wIth Its reqmrement to divest by October 15, 1996, he would be subject to dISCIplme up to and mcludmg dIscharge In the submIssIOn of the umon, thIS \vas not the usual case of "comply no\\ gneve later" becausE the gnevor could not comply with the reqmrement to divest bv October 15 without suffenng meparable harm. The umon requested an order that, pendmg the hearIng of the ments of the gnevance en.loll1ed the emplover from (1) requmng divestment of the gnevor's part-ownership and. (2) dlscharg1l1g the gnevor for not complvlI1g with ItS reqUlrement to divest by October J 5 19C)6 For reasons which fa II 0\\ thiS request was granted In part and dIsmissed 111 part '" J II The Evidcnce The eVidence that was filed In support of the request for Intenm rehef was very thin, It essentially compnsed an unsworn declaratIOn by the gnevor, Mr Steve NIeld, and what purported to be photocopies of certain documents that had passed between him and the employer regarding hiS part-ownership In the bUSiness and whether this constituted a conflict of Interest. The employer did not file any eVidence because it had received mlmmal advance notice of the hearmg and, as a result, was m attendance under protest. Counsel for the employer, however, was prepared to make submiSSions upon the Issues that were raised m the request of the union, Accordmg to the declaratIOn ofMr Nield, in June, 1995, he purchased a 49% mterest m the V 1llage Auto Centre/Body Shop In Sarma, Ontano The employer became aware that he had acqUired thiS Interest m the summer of 1995 As of the date of Mr Nield's declaration, October 11, 1996, his Investment amounted to some SIxty thousand dollars m cash and personal lIabilIties, The busmess was operated as an umncorporated partnershIp Mr Nield dId not partiCIpate m the day -to-day running of the bUSiness nor did he draw any salary from It. The return he expected from hIS Investment was a 49% share of the vear-end profits of the bUSiness Since pun..haslI1g hiS share In the busmess, Mr Nield did not prO\lde adVice to nor II1spect any of the body shops 111 Lambton County, including tlK VIllage Auto CentrclBody Shop Only 30 bod) 3 shops cXlstcd 1\1 the county, and because there was one other Health and Safety Officer employed III Sarma, there was no necessity for him to Illspect or adVise such bus1\1esses In earlv May, 1996, Mr L Mylemans, Mr Nield's supervIsor, became concerned about a potential conflIct of mterest ansmg out of Mr NIeld's ownershIp of a part-mterest m the busmess. He requested and receIVed from Mr Nield detaIled mformatIOn regardmg hIs ownership and partIcIpatIOn m it. On July 16, 1996, Mr W Hitchman, the Area Manager, issued a letter to Mr NIeld stating that hIS investment had been determmed to be in conflIct of mterest and directing hIm to divest hImself and hIS family of all financIal Interest In the VIllage Auto Centre/Body Shop On August 6, 1996, Mr NIeld gneved this reqUIrement by the employer and mcluded a request that the Gnevance Settlement Board, inter alia, dIrect management "to rescmd Its order WIth full redress and declare that there was no conflIct of mterest." Thereafter, the employer adVIsed Mr Nield that he would be subjected to dIscipline up to and Illcludmg dIscharge Ifhe dId not divest hImself of hIS Illterest III the busmess b} Tuesday October 15 In hiS declaratIOn, Mr Nield stated that if he was forced to dIvest hImself of hIS mterest m the bus1\1ess. he would take a very consIderable loss on hIS ImtIal Investment It was difficult. he saId. to sell a non-controllIng lI1terest In a bus1l1ess such as the Village Auto Centre/Bodv Shop Ill.;; partner has adVised h1l11 that he cannot afford to bl\\ h1ln out He also would stand to lose hI share of future profits, whIch could not easil) be calculated but whIch could be consIderable 4 Mr Nield also stated that if he lost hiS employment as a result of falling to divest, he would suffer very considerable financial hardshiP HIS Income was the pnmary Income In the household and he was primanly responsible for the finanCial secunty of the household, He said that he owned a home on which there was a mortgage, which may be impOSSible to mamtam If he lost hiS employment. III. The Issues At the heanng, counsel for the partIes raIsed a number of Issues for detennmation, These were as follows (1) Whether there were suffiCIent facts before the Board upon whIch to base a case for mtenm relief; (2) Whether the Board had JurisdICtIOn to grant the kmd of mtenm rehef requested bj the union, (3) Whether the test for granting mterIm reltefhad been met by the umon 111 the present case and, (4) The extent of mterIm reltef, If any to be granted These Issues WIll be addressed seriatim herembelow / 5 (1) The Sufficiency of the Facts The submissions of the parties upon this Issue revolved around the questiOn whether an unsworn declaration was capable of bemg used as a factual basIs for mtenm rellef Counsel for the employer submmed that an unsworn declaratiOn was no eVidence at all, and as a result, there were no facts before the Board upon WhICh It could act. Counsel for the umon, however, submitted that It was proper to proceed upon the basIs of a declaratIon in a request for mtenm relief. In thIS regard, I was referred to Re Leeder and Ministry of Health (1994), G S B Nos. 2498/93, 164/94, and 296/94 (Finley), and Re Thermal Ceramics, Division of Morganite Canada Corp. and United Steelworkers (1993), 34 L. A. C (4th) 23 (Gray) In Thermal Ceramics the arbItrator was requested to grant mtenm rellef on the basis of second~hand assertiOns of fact in a letter from the umon, The employer replied that intenm relief should not be granted, inter alia, because there was no factual basIs before the arbitrator Id. at 28. The arbItrator declined to grant the requested interim rellef, but not because of the lack of a factual baSIS for It. Rehef was denied because the heanng was close at hand and any mtenm loss to the gnevor could be compensated by an award of mterest. Id. at 29 Commentlng upon these events 111 hiS subsequent award, the learned arbitrator said In hll1dslght. for reasons \vhlch WIll become apparent, 1 would have attached more slgl1lticance to the fact that the uniOn representatIve's knowledge of many of the facts relIed on 1I1 the request was second-hand In future matters. I would be 6 l11cllncd to require that any assertions of fact relied upon by a party to an applIcatIOn for pre-hearing 1l1tenm rehef be supported by Signed declarations or statements bv persons with personal knowledge of those facts Jd. at 30 The arbItrator apparently concluded that a SIgned declaration by a person with personal knowledge of the facts would constItute an adequate factual baSIS for a request for mterIm relIef I am mclined toward adoptmg the same view, at least m cases where the CIrcumstances are so urgent as to mak.e VIrtually ImpoSSIble the submIssIOn of better evidence Otherwise, the party seekmg mtenm relief would be denied the rIght to obtamIt even though the grounds for grantIng It mIght have been compellIng. At the same tIme, and as shall become apparent later on In thIS award, the lower the quality of eVIdence rehed upon, the more hmlted will be the mtenm relief An unsworn declaration cannot JustIfy grantmg mterim rehef for a longer penod of tIme than necessary to allow both partIes to marshal and present better evidence in support of theIr respectIve cases Here, the Clfcumstances were so urgent as to make virtually impossible the submIssIOn of better eVIdence The hearIng upon the request of the umon was held on Tuesday October 15 1996, the \ ery day upon whIch Mr NIeld was to be dIsCIplined up to the pomt of dIscharge If he had not bv then comphed WIth the employer's dIrectIOn to dIvest hImself of hIS mterest m the busmess. The umon's request for a heanng was made on Fnday October 11, the busmess day Immediately precedmg the day of the heanng (Monda'\' October 14 was the Thank.sglvmg Da\ holldav ) There were several Issues to be sorted out An ImmedIate deCISIOn upon these Issues was requIred It would not have been pOSSIble to call Mr NIeld and, perhaps, his partner, to gIve 7 cross-exammed eVIdence of theIr respecttve mvcstmcnts and mvolvements m the busmcss, and the losses to be suffered by Mr NIeld If forced to dIvest as reqUIred by the employer If mtenm rchef were to bc granted at all, It had to be granted upon the basIs of the declaratIOn of Mr NIeld that was submItted by the umon. (2) Jurisdiction Counsel for the union submitted that I had jurisdictIOn to grant mterim rehef under both the Crown Employees' Collective Bargaming Act and the Statutory Powers and Procedures Act. Section 48(12)(1) of the Ontario Labor RelatiOns Act, as incorporated mto the Crown Employees' CollectIve Bargammg Act, granted me the the power to make intenm orders concernmg procedural matters. SectIOn 16( 1) of the Statutory Powers and Procedures Act granted me a broader power to make intenm orders concermng all matters, whether procedural or substantive Regardless of which statutory power I applied, It was submItted, I had JUrIsdiction to grant mtenm rehef m the circumstances of the present case. Counsel for the employer submitted, however, that my only JunsdIctlOn to grant mtenm rehef was under sectIOn 48 (12) (1) of the Ontano Labor RelatIOns Act, as mcorporated mto the Crown Emplovees' CollectIve Bargammg Act ThIs was lImited to makmg mtenm orders concernmg procedural matters. The order requested by the Union. It was submItted, was substantive In nature and hcnce bevond m) JUriSdIctIOn to Issue 8 I am Il1clll1cd to agree WIth counsel for the employer that my only JUrisdiction to grant Intenm relief IS under sectIOn 48 (12) (I) of the Ontario Labor RelatIOns Act, as Incorporated Into the Crown Employees' Collective Bargammg Act. Application of the Statutory Powers and Procedures Act to proceedmgs before the Grievance Settlement Board was ousted by sectIOn 3 (2) of the Ontano Labor RelatIOns Act. as incorporated mto the Crown Employees' Collectlve Bargainmg Act, per sectIOn 2 (2) of the latter The argument relied upon by counsel for the union for applIcatIOn of the Statutory Powers and Procedures Act (SPP A) was intriguIng, but too technical in nature to be accepted as an expressIOn of the intent of the legislature. If I have it right, this argument went as follows Before Bill 7, section 12 (4) of the Crown Employees' Collective BargaIning Act (CECBA) specifically excluded the SPP A. Similarly, the Ontano Labor RelatIOns Act specifically excluded the SPP A. Both exclUSIOns were repealed by Bill 40 Bill 7, however, only reinstated the exclusion of the SPP A m the Labor RelatIOns Act. It did not reinstate the exclUSIOn in the CECBA. The CECBA was left wlth no express exclusion of the SPP A. SInce section 32 of the SPP A provides that It applies unless expressly ousted, the absence of an express exclusion 111 the CECBA must be taken to mean that the SPP A apphes to proceedings before the Gnevance Settlement Board. I thmk, however, that the more likely mterpretatIOn of the Il1tent of the legislature IS that It Intended to oust the SPP A from both the Ontano Labor RelatIOns Act and the Crovm Employees' Collective Bargal11ll1g Act Because the oustll1g proVISIOn of the Ontano Labor Relations Act was bell1g 1I1corporated 1I1to the Crown Employees' Collective Bargam1l1g Act. It probably \\<as 9 deemed to be unnecessary to Include a separate ouster In the latter Otherwise It seems, It would not have made any sense to provIde for the IncorporatIOn of the Ontano Labor RelatIOns Act's oustIng provIsIOn, I also am InclIned to agree wIth the submIssIon of counsel for the employer that the jUnSdIctIOn of the Board to make mtenm orders concernIng procedural matters does not permlt It to enjom VIa a "cease and desIst" order antIcIpated or apprehended breaches of the collectIve agreement. As was said m Re Beachvilime LId. and Energy and Chemical Workers' Union, Local 3264 (1989), 7 L A. C (4th) 409 (Hinnegan), "[t]he functIOn of an arbItrator IS to determme whether there has been a vIOlatIOn of the collectIve agreement and arbItrators, m fact, have no JunsdIctIOn untIl a violatIOn has occurred." ld. at 412. There IS no procedural matter to tngger an mtenm order untIl there IS a proceedmg before the Board. There IS no proceedmg before the Board untIl the umon refers to It a gnevance allegmg that the employer has already breached III some way the CECBA or the collectlve agreement. It follows that the Board does not have jUnSdIctIOn to enJom the employer from dIscIplImng or dischargIng the gne\ or, Mr NIeld, even though It was antIcipated at the heanng that the employer Intended to dIscharge hun on the da\ foIIowmg the deadlIne of October 15 The only gnevance that was before the Board was the one Mr Nield filed on August 6 1996 The onl) breach It complamed of was an unreasonable exercise of managements' nghts m requmng him to divest himself of his mterest In the busmess It did not complam that the Imposition of a deadlIne under threat of disciplIne \\ as lIkeWise a breach of managements' nghts In fact, It could not 10 because the deadlme of October 15 was not Imposed until some time after the gnevance was filed, The Imposition of the October 15 deadlme under threat of dlsclplme IS not the subject of an} proceedmg before the Board. UntIl it becomes one, the Board does not have any JUriSdictIOn to Issue an mtenm order concernmg It. Tins does not mean, however, that the Board is WIthout JunsdIctlOn to issue an mtenm order m the present case, Once Mr Nield's gnevance of August 6, 1996 was referred to the Board, the reasonableness of management m requIring him to divest himself of his mterest m the business became the subject of a proceeding before the Board. The Board undoubtedly has jUrISdIctIOn under the Crown Employees' Collective Bargaming Act to Issue an mterim order concernmg procedural matters m this proceedmg It seems to me that one such procedural matter would Ill\olve the questIon whether Mr NIeld should be permitted to retam hIS mterest m the busmess pendmg determmahon of the ments of hIS gnevance, I WIll now proceed to address thIS questIOn, (3) Was the Test for Granting Interim Relief Met? Both parties agreed that to obtain mtenm rehef, the umon was reqUired to demonstrate (1) that It had an arguable case upon the ments of the gnevance, and, (2) that the balance of harm or mconvemence was m Its favour The focus of the dIspute between the partIes was upon whether these cntena had been met As to the eXistence of an arguable case for the unIon, counsel for the umon relted pnmanlv upon - 11 Re tan der Linden and the (ruwl1 (1981),28 LAC (2d) 352 (SwlI1ton) In that casl. the Board said In decIding whether a public servant IS m a pOSItIon of conflict of mterest, a Board such as this should look to whether the public servant has placed himself in a sItuatIOn where his personal mterests or activities mterfere with his abIlity to carry out hIS obligatIons as a public servant or mterfere wIth the Government's abIlIty to carryon ItS programmes for the servICe of the public Id. at 357 The questIon whether the gnevor's mvestment constItuted a conflict of mterest, it was submItted, depended upon whether he had placed himself m a posItIOn of conflIct between hIS own self-mterest and hIS duty to the government. The facts before the Board, It was submItted, demonstrated that the umon had at least an arguable case that a conflIct of mterest had not occurred. It was stressed that, accordmg to the declaratIOn ofMr NIeld, he was not actIve m the busmess and took no part m advIsmg or mspectmg the body shop m question nor any sImIlar busmess. They were all capable of bemg served, and were served, by the other health and safety officer m Sarma. As a result, It was submitted, the gnevor was not m a posltlon of conflIct between hIS self -mterest and duty and had not mterfered wIth the government's abIlIty to serve the publIc Counsel for the emplo\ er on the other hand submItted that even on the factual baSIS before the Board the umon did not have an arguable case on conflIct of ll1terest He referred to another passage 111 thl. I (/11 de,. I illden case supra \VhlCh said ~- ~ 12 Employees who engage 111 entreprenunal actIvItIes for theIr own 1I1terest may well create feelIngs of apprehensIOn 111 chents of the M1I11stry partIcularly If they may be potentIal competItors. Therefore, the M1I11strv is JustIfied 111 trY1l1g to prevent such actIvIty and 111 stress1l1g the Importance of aVOidance of any appearance of conflIct of mterest even 111 the absence of proof of actual harm Id. at 360 Proof of actual harm dId not constitute a condItion precedent to action on the part of the employer 111 a case of apparent conflict of mterest. Regardless of whether Mr Nield actually advIsed or mspected any body shops, It was submItted, his investment still created an appearance of conflict of mterest that justified the action of the employer The eXIstence of hIS investment, counsel saId, could not help but be well known to the members of the body shop industry 111 the Sarnia area. Even if Mr NIeld dId not dIrectly deal WIth them on behalf of the employer other body shops mIght sull perceive that as a result of Mr Nield's relationship With his fellow inspector, they were being prejudiced m their deal1l1gs With the latter After givmg due conSIderation to these submISSIOns, I have concluded that the umon has succeeded m presentmg at least an arguable case for purposes of grantmg mtenm relIef The submission of the employer upon the need to aVOid the appearance of conflict is well taken, however the factual baSIS presently before the Board does not permIt any negatIve ll1ference to be drawn about that. There IS nothmg there to 1I1dlcate the state of knowledge or reactIOn of others 111 the body shop mdustl') regardmg Mr NIeld's 1I1vestment The factual baSIS does however, support an mference that the gnevor IS not at the moment 111 an actual conflIct of 13 mterest ThiS, It seems to me, constitutes III the circumstances a sufficient basIs for concludlllg that an arguable case eXists. Turmng to consIderatIon of balance of harm or mconvemence, counsel for the umon submitted that the factual basIs before the Board demonstrated that Mr NIeld would mcur a SIzable economIC loss Ifhe were forced to dIvest hImself of hIS mvestment m the busmess before completIOn of the heanng upon the ments. On the other hand, It was submItted, the employer would not suffer any harm IfMr Nield were permItted to retam hIS investment untIl then. It was pomted out that Mr Nield made his investment m June, 1995 This was known to the employer, yet the employer dId not act to reqUIre him to divest until almost one year later, m May, 1996 ThIS demonstrated lack of urgency on the part of the employer It was submitted, showed that the employer would not be harmed or mconvemenced by bemg reqUIred to WaIt untIl the ments of the gnevance were adjudicated, Counsel for the employer attacked the thmness of the eVIdence before the Board on the Issue of balance of harm or mconvenience It was noted that the declaratIOn ofMr NIeld dId not state how hard he trIed to sell hIS share m the business nor ho\\ much he stood to lose m future profits Also counsel p01l1ted out, there was no declaratIOn from the gnevor's partner 111 the busmess to confirm that he had been requested to bu\ Mr NIeld out but was finanCIally unable to do so In I1ght of these omiSSions, counsel Said, the umon had not brought suffiCient eVidence before the Board to meet ItS burden upon thIS aspect of the test for 1I1tcnm rehef 14 As I lI1dlcated prevIOusly 111 tillS award I too was troubled by the lhl11ness of the eVidence presented on behalf oftvlr Nield. GIven the urgency of the sItuatiOn, however I was not mclmed to view this defiCIency as a ground for denymg mtenm rehef but rather as a ground for hmltmg It. In my opmlOn, an unsworn declaratIOn cannot support grantmg mtenm relief for a longer penod of time than necessary to allow both partIes to marshal and present better eVIdence m support of theIr respective cases. Because of the urgency of the SituatIOn, I am prepared to find that the umon has made out a case for mtenm rehef I accept for the moment the statements m Mr NIeld's declaration mdicatmg that he would suffer conSIderable economIC harm if he were now required to dIvest hImself of hIS investment. However, the thmness of the eVIdence upon thIS aspect of the case cannot support an mJunctlve order lastmg until adjudIcatIon of the ments. It can only support an mtenm order for a penod of time necessary to allow both parties to marshal and present better eVIdence of theIr cases for and agamst grantmg such mtenm rehef (4) The Extent of Interim Relief Granted In hght of the above consideratIOns. an mtenm order was Issued at the heanng permIttmg Mr Nield to retam his mvestment for a penod of fifteen work.Ing days from the date of the heanng, so long as he contmued to aVOId mvolvement m the mspectlOn of auto bod\ shops The order also prm Ided that If the umon reqUIred an extenSion of the order It shall make a tunel)' applicatIOn for sllch extenSIOn supported by more cogent ~vldence of the eXistence of an 15 arguable case and balance of harm III ItS favour than m the declaratIOn that was presented m th]5 request. I did not retam JUrisdictIOn, IV Conclusion The request of the umon for mtenm rehef IS granted 10 part and dismissed 10 part, Dated at Toronto, Ontano, this;: /"lctay of October, 1996 "- /l I 1 oberts, V Ice ChaIr