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HomeMy WebLinkAbout1996-1471NIELD96_11_28 ONrARIO EMPLOYES DE LA COURONNE CROWN EMPLOYEES DE L'O/'ffARIO GRIEVANCE COMMISSION DE 1111 SETTLEMENT , REGLEMENT BOARD DES GRIEFS 180 DUNDAS STREET WEST, SUITE 2100, TORONTO ON M5G 1Z8 TELEPHONEITELEPHONE (416) 326-1388 180, RUE DUNDAS OUEST, BUREAU 2100, TORONTO (ON) M5G 1Z8 FACSIMILEITELECOPIE (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 G McKechnie Vice-Chairperson FOR THE K. Waddingham GRIEVOR Counsel Ryder, Wright, Blair & Doyle Barristers & Solicitors FOR THE M. Wilson EMPLOYER Counsel Legal Services Branch Management Board Secretariat HEARING November 4, 1996 1 INTRODUCTION This case first came to the Grievance Settlement Board (Board) in front of Vice Chair R J Roberts on October 15, 1996 Vice Chair Roberts issued an order which IS shown as Appendix A to the instant decision Briefly stated, the Union came before Vice Chair Roberts on an urgent request for interim relief Vice Chair Roberts granted interim relief for fifteen (15) days and in his order provided for an extension should the Union make application and provide "more cogent evidence" At the outset of the instant hearing, both the Union and the Employer had preliminary matters The Union argued that I did not have authority to reconsider the matter of whether or not the Board had jurisdiction to grant interim relief since that matter had been decided by Vice Chair Roberts, whereas the Employer took the position that I should entertain its argument with respect to whether or not I had Jurisdiction to grant a second request for interim relief, given its view that the Interim relief order had expired The Union referred me to OPSEU (Howe/Dalton/ Loach) and the Crown in right of Ontario (Ministry of Correctional Services), a GSB decision of Vice Chair Dissanayake dated March 15, 1995, and E Blake et al and Amalgamated Transit Union and the Crown in right of Ontario (Toronto Area Transit Operating Authority), a GSB decision of Vice Chair Shime dated May 3, 1988 In the Union's view, both cases put forward the proposition that one GSB panel could not overrule another panel, or put another way, GSB decisions must 2 have finality The Employer argued that it was not requesting a reconsideration of the order of Vice Chair Roberts, rather the order of Vice Chair Roberts expired on November 1, 1996 and the Union would have to present a new case for any interim relief, and the Employer could, therefore, argue the issue of jurisdiction After reviewing the arguments, I concluded, and informed the parties, that the matter of jurisdiction had been addressed by Vice Chair Roberts He concluded as follows "Once Mr Nield's grievance of August 6, 1996 was referred to the Board, the reasonableness of management in requiring him to divest himself of his interest in the business became the subject of the proceeding before the Board The Board undoubtedly has jurisdiction under the Crown Employees' Collective Bargaining Act to issue an interim order concerning procedural matters in this proceeding It seems to me that one such procedural matter would involve the question whether Mr Nield should be permitted to retain his interest in the business pending determination of the merits of his grievance " (p 10) I also found that the order issued by Vice Chair Roberts spoke of "an extension of this order", rather than readdressing the issues which led to the original order As a result, I concluded, and so informed the parties, that Mr Roberts took jurisdiction and provided for a possible extension As a result, the hearing before me did not concern the original jurisdiction to grant interim relief, but addressed only whether there was now sufficient evidence to grant an extension of that order 3 EVIDENCE Vice Chair Roberts stated that the Union's evidence, in its original request, was "very thm" (p 2) His order stated that, to secure an extension of the order, the Union would have to provide more cogent eVidence on whether there was an arguable case and on the balance of harm At the instant hearing, the Union presented two sworn affidavits, one from Mr Nield and the other from his partner, Mr T Basso According to the sworn affidavits, Mr Nield purchased a forty-nine percent (49%) interest in Village Auto Centre/Body Shop located in Sarnia, Ontario, in June 1995 According to the sworn affidavit, Mr Nield has invested approximately sixty thousand dollars ($ 60,000 00) in this business which is an unincorporated partnership The affidavits from both Mr Basso and Mr Nield state that Mr Nield does not draw any salary, nor does he participate in the day-to-day running of the business Mr Nield's expected return is a forty-five (45%) percent share of year- end profits Both affidaVits state that Mr Nield does not provide any advice concerning matters related to occupational health and safety with respect to this auto body shop 4 Mr Nield stated In his affidavit that he has not inspected or advised with respect to any auto body shops in Lambton County The affidavit stated that there was another Health and Safety Officer in the Sarnia office which meant that Mr Nield would not be required to inspect or advise such businesses under the Occupational Health and Safety Act Mr Nield's affidavit stated that Mr Don Hall, acting District Manager for Kitchener, knew of his purchase of the interest in the business in the summer of 1995 Early in May, 1996 Mr Nield's direct supervisor, Mr L Mylemans, became concerned about a potential conflict of interest and there was correspondence to determine if such conflict existed Mr Nield was asked a series of questions concerning the nature of the interest by Memo dated June 14, 1996, and Mr Nield responded By letter dated July 16, 1996 Mr W Hitchman, Area Manager, issued a letter stating that, in his view, Mr Nield had a conflict of interest and directed him to divest himself of his interest in the auto body shop The date of September 30, 1996 was set as a target for such divestiture Mr Nield grieved the Employer's actIon by grievance dated August 6, 1996 and requested that "management shall rescind the order with full redress and declare there is no conflict of interest " A Stage 2 grievance meeting was held on September 27, 1996 and management denied Mr Nield's grievance and set October 15, 1996 as the date by which Mr 5 Nield would be required to divest himself of his interest or face discipline, up to and including discharge In his sworn affidavit, Mr Nield stated that he approached his partner, and four other persons, with respect to selling his interest but has been unsuccessful He stated in his affidavit that if he is forced to divest himself of the interest In the business, he " will be forced to either terminate the partnership and be exposed to lawsuits by that business partner, landlord, suppliers and buyers, or abandon my investment and take a considerable loss on my initial investment" (p 5) He also states that he would lose his share of future profits, the amount of which he is unable to calculate The affidavit also states that his wife has part time employment but that the remuneration from such employment would be insufficient to cover his fixed costs if he was discharged by the Employer Ms Sophie Dennis, Regional Director of the Western Region gave viva voce evidence She is responsible for compliance with Occupational Health and Safety legislation in that area She is responsible for the office in which Mr Nield IS employed in Sarnia and she testified that it is a satellite office without an on-site manager Ms Dennis testified that the job specifications, which were tendered in evidence, indicate that the responsibility of an Occupational Health and Safety Inspector is to audit workplaces, investigate work refusals, accidents, fatalities and complaints, and administer the Occupational Health and Safety Act She stated 6 that Mr Nield IS an Industrial Health and Safety Officer, but given the size of the office he IS also on call after regular business hours for any communications with respect to health and safety programs She stated there were two other Inspectors in the Sarnia office but that if there were absences due to vacations or Illness, there could be a situation in which Mr Nield would be the only officer on the premises and he could be placed in the position of handling an auto body shop complaint or incident Ms Dennis testified that she could not move him to a purely administrative position because the officers were self administered, given the lack of an on-site manager, and that she could not move him to employment standards work because of the difference in job descriptions Ms Dennis testified that because of reduced budgets, there is increased pressure on all persons who are in the office Ms Dennis stated that it was her view that Nr Nield owns an auto body repair shop She testified that he does air conditioning, paint and body repair and buys and sells used cars, although she admitted she did not know if he personally performed those functions There was no indication of those activities in the sworn affidavit by either Mr Nield or Mr Basso Ms Dennis testified that she found out about his interest in the shop when she received the publication of an , auto body trade magazine which stated that Mr Nield was a "managing partner" This excerpt from a trade magazine was contained in Mr Nield's sworn affidavit 7 Both Mr Nield and Mr Basso stated in their affidavits that the article was Incorrect when It referred to Mr Nield as a managing partner Ms Dennis expressed concern that the perception of a conflict of Interest would affect the ability of her office to prosecute companies which violate the Occupational Health and Safety legislation It was her view that the Sarnia office is small and therefore Mr Nield is visible in the industrial community Her experience in court proceedings was that conflict of interest has delayed or prohibited the Ministry's ability to prosecute companies who have allegedly violated the Act Ms Dennis testified that she was unaware of any complaint that had been made concerning Mr Nield in his position as an Industrial Health and Safety Officer ISSUES The simple issue in the present case is whether the Union has met the test presented by Vice Chair Roberts, that it provide" more cogent evidence of the existence of an arguable case and balance of harm .. Counsel for the Union argued that the sworn affidavits of Mr Nield and Mr Basso were clear Counsel for the Union agreed that both parties had an arguable case, however, in the Union's view, the evidence and balance of harm favoured an extension of the order Mr Don Hall submitted an affidavit, which was not sworn, indicating that 8 he was the supervisor of Mr Nield from July 1, 1991 until January 10, 1994 He indicated that Mr Nield had not approached him with respect to his interest In the body shop business nor was the issue of conflict of interest ever raised with him In the Union's view this is simply a declaration and does not contradict the sworn affidavit of Mr Nield, that Mr Hall had knowledge, during the summer of 1995, of Mr Nield's interest In the business It IS the Union's view that a considerable time elapsed between the acquisition of the interest and the first indication of a potential conflict of interest in May 1996 when Mr Nield's supervisor contacted him The Union also expressed its concern that there were delays in proceeding to the hearing before me and this reduces the sense of urgency communicated by the Employer The Union referred me to Re Van der Linden and the Crown in Right of Ontario (Ministry of Industry and Tourism) (1981), 28 LAC (2d) 352 (Swinton) in which the arbitrator stated as follows "In deciding whether a public servant is in a position of conflict of interest, a Board such as this should look to whether the public servant has placed himself in a situation where his personal interests or activities interfere with his ability to carry out his obligations as a public servant or interfere with the government's ability to carryon its programs for the service of the public " (p 357) 9 Counsel for the Employer referred to a second passage from the same decision as follows "Mr Brown, for the employer, argued that the grievor's involvement with B has damaged the Government's interests in two ways first, he expressed concern that other businesses which are potential clients of the Ministry will fear to disclose confidential information unless it be used by Government employees for personal advantage, and secondly, that A Company's positIon with the Ministry has been affected in some undefined fashion" (p 357) Counsel for the Union argued that it is unfair to make a minority shareholder divest himself of interest before his grievance is heard Counsel for the Employer stated that there was no arguable case There were only three Health and Safety Inspectors in the Sarnia office and the uncontradicted eVidence of Ms Dennis was that problems could arise and, if they did, it would harm the ability of the Employer to prosecute violators of the Occupational Health and Safety Act. Counsel also stated that Ms Dennis testified that the issue is not simply auto body repairs, but involves automobile sales and air conditioning Counsel for the Employer argued that Mr Nield has conceded the issue since he has tried to divest himself of his interest Counsel for the Union argued that Mr Nield would suffer serious and irrefutable harm if he was forced to divest himself of his interest prior to a determination of 10 the merits of his case On the other hand, Counsel for the Union argued that the Employer would not be harmed Counsel for the Employer stated that there is an ongoing liabIlity with respect to prosecutions while Mr Nield remains with an interest in the auto body business With respect to balance of harm, Counsel for the Employer stated that the Ministry's prosecutions will be tainted and there is harm because no damages can be paid to those individuals whose cases are not heard, whereas the grievor can be compensated if he is discharged or disciplined and is subsequently reinstated In the Employer's view the harm to the grievor is one of a monetary nature and the burden of harm should not be moved to the Employer because reinstatement will accommodate any monetary harm The Employer referred to Re Hospital for Sick Children and Canadian Union Public Employees, Local 2816 (1993), 33 LAC (4th) 253 (Mitchnick) In that case, the issue was the elimination of RNA positions and subsequent layoffs The arbitrator concluded that the burden traditionally has fallen upon the grievors who are deprived financially until a final ruling is made on the merits Should reinstatement occur, they can be made whole - (see pp 255-56) .,..... 1 1 DECISION The issue before me is whether or not the Union has provided the cogent evidence required by Vice Chair Roberts' original order The two tests that are required are first, that the Union have an arguable case for interim relief, and secondly, that there is evidence of balance of harm that is more burdensome to the grievor than to the Employer As to the existence of an arguable case, the Union's reliance on Re Van der Linden (supra) is counter-balanced, to a certain extent, by the Employer's reliance on a different passage from that same case However, on balance, I have concluded that the Union has presented an arguable case for the purpose of granting interim relief Vice Chair Roberts found as follows "There is nothing there to indicate the state of knowledge or reaction of others in the body shop industry regarding Mr Nield's investment The factual basis does, however, support an inference that the grievor is not at the moment in actual conflict of interest. This, it seems to me, constitutes in the circumstances a sufficient basis for concluding that an arguable case exists" (pp 12-13) After considering the evidence presented, I have come to the conclusion that the same situation exists before me It is clear from the sworn affidavits of both Mr Basso and Mr Nield that the situation with respect to his day-to-day involvement in the operation of the business is unchanged from the position taken before Vice 12 Chair Roberts Although Ms Dennis spoke of other business activities of Mr Nield, the sworn affidavit does not speak of those activities in any way and it is not clear whether Ms Dennis is properly apprised of all of his activities This is a matter that is best left to the merits It is also clear from the evidence of Ms Dennis that no complaints have been made concerning Mr Nield's activities either as an Inspector or Officer, or because of his interest in the particular auto body shop That is not to say that there is no perception in the community, however, there is no factual evidence for me to conclude that a problem currently exists I take seriously the evidence of Ms Dennis that given decreased funding, pressure will brought to bear on the Inspectors, however, Ms Dennis gave evidence only to the possibility of difficulties not actual difficulties The potential should not be denied, however, at this moment in time, there would appear to be no actual problems As a result, I come to the conclusion that an arguable case exists With respect to the matter of the balance of harm or inconvenience, I conclude, based on the sworn affidavit of Mr Nield and the viva voce evidence of Ms Dennis that at this point in time the balance of harm rests with Mr Nield The sworn affidavit is clear that he has made attempts to divest himself of his interest, but these have been unsuccessful That he has chosen to do that is not, in my respectful opinion, evidence that he has accepted the Employer's order, in fact he has grieved that order -... 13 In Re Midas Canada Inc and Unrted Steelworkers of Amenca, Local 6727 (1993), 36 LAC (4th) 349 (Briggs), the arbitrator stated "While compensation for moneys lost can be ordered if deemed appropriate, It is difficult, if not impossible, to address the harm that can occur as the result of having months of little or no income and significant financial responsibilities " (p 361) In the instant case, Mr Nield has stated in his sworn affidavit that his investment would be lost and if discharged by the Employer, he would suffer "very considerable financial hardships" In my view, reinstatement will not redress the potential harm of divestiture in this case A similar finding was made in Re Toronto Transit Commission and Amalgamated Transit Union, Local 113 (1994), 42 LAC (4th) 42 (H D Brown) in which the arbitrator stated that. "While the grievor may be fully compensated should his grievance be allowed, it appears to us that his financial risk in his lack of employment and other income, taken with his costs of living, where that compensation if ordered at all may not be made for a substantial period of time, that harm exceeds the reasonable balance of convenience of the parties to litigation and is overburden some to the employee compared to the potential risk of harm to the employer in the interim period " (p 51) Similar findings were made in Re Du Pont Canada Inc and Kingston Independent Nylon workers Union (1994), 40 l.A C (4th) 203 (Starkman) In the instant case part of the financial harm is the investment and profit losses ~.-" 14 After consideration of the eVidence and arguments made with respect to balance of harm, I conclude that the balance of harm is much more burdensome to Mr Nield than It IS to the Employer The issue is not being understated from the Employer's perspective, a conflict of interest could damage prosecutions initiated by the Employer That such may occur in the instant case has not been demonstrated suffiCiently to outweigh the material contained in the sworn affidavit Ms Dennis IS correct to be concerned, however, with an expeditious hearing on the merits, such concern is, in my respectful opinion, outweighed by the balance of harm to Mr Nield if interim relief is not granted In conclusion, I find that the Union has presented more cogent evidence with respect to an arguable case and a balance of harm Vice Chair Roberts granted interim relief for 1 5 days His reasoning for the limited time was based on the "thinness of the evidence" (p 14) and he stated "An unsworn declaration cannot justify granting interim relief for a longer period of time than necessary to allow both parties to marshal and present better evidence in support of their respective cases" (p 6) In my opinion the sworn affidavits constitute better evidence such that the interim relief need not be as constrained as that granted by Vice Chair Roberts 15 At the hearing, I extended the interim order issued by Vice Chair Roberts until the date of my decision My decision was made on November 6, 1996 and communicated to the parties The foregoing represents the reasons for that decIsion As a result, the request of the Union for the extension of the interim relief is granted Dated at Toronto this 28thday of November, 1996 ~~;If1/iL GRAEME H MCKECHNIE, VICE CHAIR O/'ffARIO EMPLOYES DE LA COURONNE CROWN EMPLOYEES DE L'O/'ffARIO 1111 GRIEVANCE COMMISSION DE APPENDIX A SETTLEMENT REGLEMENT Page 1 of 2 BOARD DES GRIEFS 180 DUNDAS STREET WEST. SUITE 2100, TORONTO ON M5G 118 TELEPHONEITELEPHONE (416) 326-1388 180. RUE DUNDAS OUEST, BUREAU 2100, TORONTO (ON) M5G 1Z8 FACSIMILEITELECOPIE (416) 3Z6-13SlC 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 APPENDIX A Page 2 of 2 BOARD ORDER 1 For a period of 15 working days from the date of this hearing, the grievor shall be permitted to retain his interest in his body shop, so long as the grievor shall continue to avoid involvement in the inspection of auto body shops 2 If the Union requires an extension of this order, the Union shall make a timely application for such extension, supported by more cogent evidence of the existence of an arguable case and ;balanoe-of harm than in the declaration that was presented in this application 3. I will not retain jurisdiction of the merits of the case so that they might expeditiously be heard within the 15 day period set forth in paragraph 1 of this order DATED at Toronto, this 15th day of October, 1996. -_._-~ - -- :...-- , Vice-Chairperson