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HomeMy WebLinkAbout1997-2032.FARACHE_ET_AL98_06 ,- ONTARIO EMPLOYES DE LA COURONNE CROWN EMPLOYEES DE L'ONTARIO 1111 GRIEVANCE COMMISSION DE SETTLEMENT REGLEMENT BOARD DES GRIEFS 180 DUNDAS STREET WEST SUITE 600, TORONTO ON M5G 1Z8 TELEPHONEITELEPHONE (416) 326-1388 180, RUE DUNDAS OUEST BUREAU 600, TORONTO (ON) M5G 1Z8 FACSIMILEITELECOPIE (416) 326-1396 GSB#2032/97, 2045/97, 2046/97, 2179/97 OLB#384/97, 011/98, 012/98,495/97 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN OLBEU (FaracheIDorfinanIF oni/Keenan) Grievors - and - The Crown III Right of Ontano (LIquor Control Board of Ontano) Employer BEFORE P Knopf Vice-Chair FOR THE J Noble UNION Legal Counsel Ontano LIquor Board Employees Druon FOR THE A. Renton EMPLOYER Counsel LIquor Control Board of Ontano HEARING April 28, 1998 PRELIMINARY DECISION The partIes have consolIdated four grIevances The grIevances are filed as a result of the ImplementatIOn of a mandatory retIrement polIcy m 1997 affectmg all employees of the LeBO, mcludmg bargalrnng and non-bargammg urnt members Up to that pomt, mandatory retIrement had been Imposed upon full-lime members of thIs bargammg urnt. As of October 1997, the mandatory retIrement was applIed to casual employees as well The four grIevors were casual employees over 65 years of age They protest the applIcatIOn of thIs polIcy to theIr circumstances The Umon mtends to put forth eIght arguments m an attempt to persuade thIS tribunal that the Employer cannot requIre casual employees to retIre at a specIfic age In a nutshell, the Urnon's arguments can be summarIzed as follows The Umon's AllegatIons (i) The grIevors have been dIsmIssed wIthout Just cause and the Employer must JUStIfy theIr dIsmIssal as It would a dIscharge (ii) The Employer's polIcy dlscrImmates agamst the grIevors on the basIs of age and amounts to a VIOlatIOn of ArtIcle 2 1 of the collectIve agreement (iIi) The Employer IS not entItled to cause these employees to lose theIr sernorIty and deem them to be termmated because the CIrcumstances do not fall under ArtIcle 3 1 5 - 2 - (iv) The Employer's polIcy IS dISCrInunatory because It does not apply equally to all employees because other casual employees over age 65 have been allowed to contInue to work. (v) The polIcy IS arbItrary and dIscrImInatory because It IS not based on a bona fide occupatIOnal qualIficatIOn. (VI) The Employer should be estopped from changmg ItS polIcy because at least three of the four grIevors relIed on the prevIOus polIcy of not requmng mandatory retIrement for casuals Therefore, they passed up opportumtIes to be full-tIme because of the mandatory retIrement (VIi) The Employer should be estopped from changmg ItS polIcy m the mIddle of the collectIve agreement because It faIled to gIve notIce to the bargammg agent before Implementmg a change m polIcy ( vlli) The polIcy IS arbItrary dlscrImmatory and In bad faIth because It IS desIgned to "clear out as many casuals as possible and replace them wIth casuals hIred at later tImes who are paId at a much lower rate" The Employer adamantly dIsputes all of these allegatIons, but reserves ItS nght to reply to the allegatIOns If the hearIng proceeds on ItS merIts The Umon's arguments have raIsed several prelImInary Issues The partIes have requested rulIngs on these prelInunary matters pnor to embarkmg upon a hearIng - 3 - Into the substantIve Issues In dIspute By agreement, the partIes made oral submIssIons and then filed wntten subnusslOns ThIs prelImInary award IS based on a conSIderatIOn of the wntten and oral subnusslOns filed. The three prelImInary Issues shall be dealt WIth In turn. 1. Arbltrabdlty The Employer IS arguIng that the grIevances are InarbItrable The Employer emphasIzes that ArtIcle 2 1 (b) of the collectIve agreement prohibIts dIscrmunatlOn and also references the Ontario Human Rights Code sectIOn 5(2) and SectIon 10 It was subnutted that the eode's defimtlOn of age as beIng "18 years or more and less than 65" IS applIcable to thIS sItuatIOn and means that nothIng In the collectIve agreement prohibIts a mandatory retIrement polIcy at age 65 Therefore, the Employer argues that there IS nothIng In the collectIve agreement whIch prohibIts a mandatory retIrement at age 65 or upon whIch the Umon can rely to base Its case Further, thIS collectIve agreement has no management rIghts clause, therefore the Employer argues that ItS rIght to manage IS not fettered by anythmg In the collectIve agreement The Employer also argues that nothIng In the collectIve agreement restrIcts ItS rIght to Implement polICIes upon full-tIme or part-tIme casuals Therefore, the Employer submIts that nothIng In the collectIve agreement gIves thIS tribunal JUrIsdIctIOn to deal WIth the grIevances as framed The Employer also argues that thIS case should not be dealt WIth as a "dIsmIssal case" and that the Board should follow the Bell Canada deCISIOn and declIne junsdlctlon. See Bell Canada and Office and Professional Employees' International Umon Local 131 (1973), 37 D L R. (3d) 561 (S e e ) The Employer also relIes on Carleton Umverslty and Umted Steelworkers of America (1993),37 L A.e (4th) 269 (Young), Miracle Food Mart Canada and U F C W Locals 175 and 633 (1995), 48 L A.e (4th) 377 (Petryshen) - 4 - and Corporation of the City of Etobicoke and CUP E. Local J 85 (1996), 54 L A. e (4th) 229 (Spnngate) In response, counsel for the Urn on argues that the matter does raise arbItral Issues wIthIn the jUnSdIctlon of thIs tribunal. The UnIon argues that ArtIcle 2 1 (b) of the collectIve agreement gIves protectIOn agaInst age dlscnmmatlon that has brought It under the protectIOn provIded under the Human Rights Code and has "no upper lImIt age restrIctIOn" wIth respect to protectIOn agaInst age dISCrImInatIOn The UnIon argues that the Employer has vIOlated the collectIve agreement In ItS actIOns and that thIS gIves jUnSdIctIon for thIS arbItratIon Further, the Urnon argues that the Employer has acted In a manner that IS arbItrary, dISCrImInatory and In bad faIth, contrary to "accepted case law and the ImplIed management rIghts clause" of thIS collectIve agreement Further, In support of Its argument that thIs should be treated as an unjust dIsmIssal case, the UnIon argues that the Instant grIevors are dIstIngUIshable from the sItuatIon before the Supreme eourt of eanada In the case of Bell Canada and the Office and Professional Employees' International Union, Local J 3 J, supra In a general sense, the UnIon argues that the Employer's submISSIOns should not be consIdered as sustaInable prelImInary arguments agaInst arbltrabIlIty, but rather an IndIcatIOn of how the Employer seeks to defend ItS actIOns In law Finally, the Umon argues that the grIevances assert that the Employer IS estopped from changIng ItS polIcy and practIce regardIng casual employees and as such should be treated as a matter that falls wIthm the jUrIsdIctIon of thIs tribunal In reply to the Umon's submISSIOns, the Employer took grave exceptIOn to several aspects of the submISSIons whIch could be Interpreted as expandIng the scope of the grIevance The Employer reserved the nght to make full submISSIOns on the scope of the grIevance If the matter proceeds on ItS merIts eounsel for the Employer also stressed that there should be no "ImplIed management nghts" read Into thIS collectIve agreement - 5 - nor should there be consIdered a prohibItIon agaInst actmg arbItrarIly, dlscrImmatorIly or m bad faIth under tlu-s collectIve agreement. Finally, the Employer suggested that there IS no jUrIsprudence that would allow a UnIon to raIse an estoppel argument m the face of the other party takmg the pOSItIOn that the grIevance was Inarbltrable For all these reasons, counsel for the Employer asked that the gnevance be ruled as outsIde the JunsdIctlOn of thIs tribunal Decision With Respect to Arbitrabllzty After havmg consIdered the submIssIons of the partIes, It must be concluded that the grIevance raIses arbItral Issues concerrnng the applIcatIOn, mterpretatlOn, admInIstratIOn and complIance WIth the collectIve agreement Because the questIons raIsed by the grIevance may have to be canvassed In great detaIl when the merIts of the case are consIdered, I WIll not go Into an extensIve analYSIS of the case law concernIng age dIscnmmatlOn under collectIve agreements lIke or SImIlar to thIs one I wIll sImply deal WIth the junsdlctlOnal matter In the Bell Canada case, supra, the Supreme eourt of eanada was dealIng WIth the questIOn of whether an employer, havmg retIred one of ItS employees at a specIfic age, would be requIred to go tQ arbItratIOn of a grIevance that described the mandatory retIrement as a "dIsmIssal" The eourt declared that the arbItrator had erred In law In findmg that the employee had been dIsmIssed and further that the deCISIon was made WIthout jUrIsdIctIOn under the collectIve agreement Insofar as thIS assIsts the case at hand regardIng the JunsdlctlOn Issue, the Bell Canada case, supra, IS of no assIstance to the Employer In the Bell Canada case, the questIOn of retIrement was held to be outsIde the scope of the "mterpretatlOn" or "VIOlatIOn" of that collectIve agreement However, In the case at hand, thIS tribunal has jUrIsdIctIOn over the broader Issues of "mterpretatlOn, applIcatIOn, admlrnstratlOn or alleged contraventIOn" of the collectIve agreement. The grIevances raIse allegatIons concernmg the admmlstratlOn - 6 - of the collectIve agreement IncludIng estoppel, arbitrary applIcatIOn and dlscrImmatory applIcatIOn. Further; It IS alleged that the mandatory retIrement amounts to a vIOlatIOn of the "non dlscnnunatlOn" provIsIon of the collectIve agreement Everythmg the Employer has raIsed by way of a prehmmary objectIOn to JUrIsdIctIon IS more properly charactenzed as ralsmg very sIgnIficant defences whIch the UnIon wIll have to answer But they do not oust the junsdlctlon of thIs Board of ArbItratIOn. Further, the Employer's reference to the Ontario Human Rights Code and the restnctlve definItIOn of age also amounts to a SIgnIficant factor that the UnIon wIll have to address If It hopes to succeed m thIS case But the Employer's argument IS, agaIn, a defence, not a bar to junsdlctlOn. The allegatIon of dlscrImmatlOn amounts to an allegatIOn of vIOlatIOn of sectIon 2 1 of the collectIve agreement That allegatIOn gIves the Board junsdlctlOn and a responslbIlJty to hear the merIts of thIS case ThIS, m turn, gIves both partIes the opportUnIty to present theIr arguments and theIr defences Accordingly, the tnbunal accepts that It has junsdictIOn over the grievances and IS prepared to hear and determine the matters on their ments. 2. Order of Proceedings The UnIon argues that the Employer should proceed first WIth the presentatIon of the eVIdence because the termmatlOn of the gnevors should be vIewed as "akIn" to a dIsmIssal where the employer bears the onus of proof Because the Employer has tills onus as a result of beIng In possession of the facts whIch prompted the termmatIon, the UnIon argues that the Employer should lead eVIdence of the actIOns It took pnor to the termmatlons In support of thIS suggestIOn, the UnIon relIes on the case "' ofCott Beverages lnc and Teamsters Union, Local 938 (1992),28 L A.e (4th) 257 - 7 - (Haeflmg) The UnIon argues that the case IS dIstmgUIshable from the facts WhICh led to the conclusIOn In the Bell Canada case, supra The Employer argues that the Urn on should proceed first WIth the presentatIOn of the case The Employer further argues that thIs case IS fundamentally a complaInt about mandatory retIrement. The Employer charactenzes the termInatIOn of the gnevors' employment as "non-dIscIplInary" and acknowledges that the termInatIOn cannot be sustaIned on the baSIS of "just cause" The Employer argues that the real Issue m dIspute IS whether It has the rIght to Impose mandatory retIrement on these mdIvlduals Therefore, It IS argued that the onus of proof and eVIdentIary burden should rest on the UnIon whIch IS allegIng the VIOlatIon of the collectIve agreement The Employer also asserts that the Urnon would bear the onus of proof on the estoppel argument Therefore, the Employer suggests that the hearIng be bIfurcated and proceed on the estoppel Issue before embarkmg on a consIderatIOn of the merIts In support of these proposItIOns the Employer relIes on the Bell Canada case, supra, as well as Canada Packers Inc. and U F C. W, Local 114P (1991),18 L A.e (4th) 442 (Solomatenko), Mather and LCBO, GSB File No 2260/95, unreported deCISIon ofB KIrkwood dated July 29, 1996 and Carter and LCBO, GSB File No 1735/96, unreported deCISIon ofNimal Dlssanayake dated March 13, 1998 Decision With Respect to Order of Proceedzngs The general prIncIple of arbItral proceedIngs IS that the party assertIng a VIOlatIOn of the collectIve agreement bears the onus of proVIng ItS case and callmg eVIdence first ThIS enables that party to establIsh the context for the case and allows the other party to defend ItS actIons after haVIng the benefit of heanng the case It has to meet \ The most common exceptIOn to thIS rule IS a dIscIplInary dIscharge where the employer - 8 - bears the onus of proceedmg first and explaInmg why It has Imposed the dIscIplIne ThIS IS because the employer IS m possessIOn of the facts whIch have prompted the dIsCIplIne and WhICh explaIn ItS actIOn. ThIS also avoIds the dIlemma of an IndIVIdual havIng to prove why slhe should not have been dIscIplIned before the case agamst hun/her has been presented See Canada Packers lnc and U FeW supra. The case at hand IS not a dIsCIplIne case The Umon IS allegmg a VIOlatIOn regardmg the InterpretatIOn and applIcatIOn of thIs collectIve agreement The Urnon IS aware that the basIs of the termInatIons IS solely the applIcatIOn of the mandatory retIrement package The Urnon IS allegIng that the package has been applIed In a dIscnnunatory way, m an unequal way and that ItS very eXIstence VIOlates the collectIve agreement In the alternatIve, the Umon IS allegmg that It can sustam an estoppel argument to prevent the Employer from applYIng the polIcy to these gnevances The Urnon bears the onus of proof on all those allegatIOns Therefore, both conceptually and practIcally, the only logIcal way to proceed IS to have the Umon proceed first Accordingly, I declare that the Union shall proceed first with the presentation of evidence and argument in this case. It would not be prudent to bIfurcate the estoppel Issue away from the rest of the case If the heanng were to deal first WIth the sole Issue of estoppel, the partIes could conceIvably be left WIth a rulIng only on the questIOn of the applIcatIon of the mandatory retIrement polIcy dunng the lIfe oftrus collectIve agreement or upon four mdlvIduals The maIn questIOn to determIne IS the efficacy of the polIcy Itself A festerIng and unanswered questIOn that has been referred to arbItratIon WIll not serve the partIes' Interests No labour relatIOns or procedural Interests would be served by such a bIfurcatIOn. It could also lead to a prolongIng of the case rather than a narrowIng of the - 9 - Issues Therefore, these proceedIngs should resume wIth the UnIon on notIce that It bears the onus of proceedIng first on the presentatIon of every Issue raIsed by these gnevances 3. Disclosure The UnIon seeks an order regardIng pre-hearIng dIsclosure of the followmg (i) DetaIls of any bargaInIng urnt or non-bargaInmg UnIt employees who have reached 65 years of age and who contInue to work smce the polIcy of mandatory retIrement has come Into force The detaIls the UnIon seeks are the names, dates of bIrth, posItIons, tItles of such people and whether they were bargamIng UnIt members or not Further, the UnIon IS seekmg theIr first date of employment (iI) The names of employees of the LeBO who were subjected to the new mandatory retIrement polIcy across the provmce The Urnon submIts that thIS InformatIon IS arguably relevant. UnIon counsel mdlcated that she could provIde the names of some employees whom the UnIon belIeves contmue to work although they are over 65 and whose CIrcumstances suggest a dlscnmmatory applIcatIon of the polIcy The Urnon also says the names and detaIls It IS seekIng would allow It to ensure that the rIghts of all ItS members have been protected The Employer resIsts thIs request for dIsclosure, argumg that the UnIon IS on a "fisillng expedItIon" and IS seekIng Irrelevant, personal and confidentIal InfOrmatIon. - 10- Further, the Employer asserts that the polIcy has been applIed consIstently to all employees and the Employer assures the Umon of thIS fact DecIsIOn With ResDect to Disclosure , . If the Urnon were unable to name any people who It belIeves are contmumg to work because of an mconslstent applIcatIOn of thIS polIcy, thIS request would appear to be a classIc example of a fishmg expedItIon. But the Umon IS able to put forward specIfic names It IS m the parties' best mterest to clarIfy and resolve suspIcIons WIth an accurate InformatIOn exchange ThIS could aVOId more dIfficult labour relatIOns problems In the future and protracted lItIgatIOn. Further, the names and the mformatIOn the UnIon IS seekmg are directly relevant to the Issues raIsed In thIS gnevance WIth regard to the dIscnmmatory applIcatIOn of the polIcy Therefore, It IS appropnate for pre-hearIng dIsclosure to be ordered Therefore, I order as follows (1) The UnIon IS to supply the Employer WIth the names of all people the UnIon belIeves are over 65 years of age and who are contInuIng to work despIte the ImplementatIon of the mandatory retIrement polIcy (2) Upon receIpt of the names from the UnIon, the Employer IS to supply the UnIon With the names, dates of birth, dates of commencement of employment, pOSItIOns and titles and IndIcatIons of whether the person IS a bargamIng UnIt member, of all people over 65 years of age who contmue to work after the Implementation of the mandatory retIrement polIcy " - 11 - The Employer should also IndIcate whether an extensIon to age 66 allowed under the polIcy was applIed for and granted to each of these IndIVIduals In those cases, the UnIon should be gIven the last date worked by these people (3) I declIne the Umon's request to order that the Employer supply the Umon wIth a lIst of all employees who were subject to mandatory retIrement The purpose of dIsclosure IS not to facIlItate the Umon's desIre to dIscover further potentIal gnevances The UnIon has other means available to It to protect ItS membershIp Accordmgly that request IS demed It IS my hope that these prelImmary rulmgs wIll assIst the parties m theIr preparatIOn for the presentatIon of thIs case At the request of the partIes, thIS arbItrator remams seIzed with thIs matter If any further prelImmary matters arIse or my assIstance could help m the orgamzatIOn of the presentatIon of the case, I InVIte the partIes to seek my assIstance at their convemence The matter IS to be scheduled for hearIng In consultation WIth the partIes DATED at Toronto, Ontano thIS 23rd day of June, 1998 ({?; Paula Knopf - Vic \