HomeMy WebLinkAbout1999-1782.Belanger et al.06-03-10 Decision
Crown Employees Commission de Nj
Grievance Settlement reglement des griefs
Board des employes de la
Couronne
~
Suite 600 Bureau 600 Ontario
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UNION# 1999-0618-0001 00E298 2001-0618-0009 2002-0618-0002,2002-0618-0010 2002-0618-0015
2002-0618-0004 2002-0618-0001 2002-0618-0003 2002-0618-0011 2002-0618-0014 2001-0618-0030
2001-0618-0008 2001-0618-0003 2001-0618-0026 2001-0618-0022,2001-0618-0005 2001-0618-0012,
2001-0618-0014 2001-0618-0029 2001-0618-0025 2001-0618-0023 2001-0618-0032
IN THE MATTER OF AN ARBITRATION
Under
THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT
Before
THE GRIEVANCE SETTLEMENT BOARD
BETWEEN
Ontano PublIc ServIce Employees Umon
(Belanger et al ) Union
- and -
The Crown In RIght of Ontano
(Mimstry ofCommumty Safety and CorrectIOnal ServIces) Employer
BEFORE Damel Hams Vice-Chair
FOR THE UNION Ed Holmes
Ryder Wnght Blair & Holmes LLP
Bamsters and SOlICItorS
FOR THE EMPLOYER Andrew Baker
Counsel
Mimstry of Government ServIces
HEARING February 10 2006
2
DeCISIon
These gnevances anse out of the CecIl Facer Youth Centre There are two Issues The first Issue
relates to claims that came about because the correctIOnal officers there were not Issued umforms
between 1999 and 2002 The umon claims damages on behalf of the 19 gnevors
The employer submIts that the gnevances, on theIr face do not dIsclose a vIOlatIOn of the
collectIve agreement In respect of that Issue and It seeks to have them dIsmIssed to that extent.
ThIS decIsIOn deals wIth that submIssIOn.
The factual background IS set out In correspondence from counsel to the umon to employer's
counsel, dated December 16 2004 In paragraphs 1 to 14 as follows
1 I enclosed a copy of the gnevances for your records The first gnevance
was filed October 28 1999
2 The Employer had a Standard ClothIng Manual dated August 24 1992 In
operatIOn. The document provIded that
"Staff on duty In young offender facIlItIes are encouraged to wear theIr
personal clothIng, subJect to the standards of the supenntendent. The weanng
of personal clothIng, however IS not compulsory and employees may wear the
regulatIOn correctIOnal officer umform In the young offender umts If they
desIre"
3 ThIS polIcy applIed to CecIl Facer Youth Centre
4 On or about October 1 1999 CO Belanger requested ofMr Boucher that he be
allowed to receIve and wear an Issue umform. His request was demed.
5 Messrs Boucher and Belanger had further dIscussIOn on October 6 1999
regardIng the request.
6 Mr 'Belanger filed a gnevance dated October 28 1999 On a stage one trackIng
form the Employer notes hIS gnevance and request was demed.
7 Many gnevances followed In 2001 regardIng contInued demals for umform
requests The demals were followed by the filIng of the gnevances - see dates
on gnevances
8 I enclose a number of letters of demal for your records
3
9 I enclose copIes of ERC Minutes to show the Issue of umforms has been
dIscussed SInce January 9 1997 Please note the mInutes dated October 14 1999
whereIn It states the umform matter wIll not be pursued further at thIS tIme The
first gnevance followed thIS meetIng.
10 The gnevance led to an Employer letter beIng Issued to the RegIOnal DIrector on
October 29 1999 supportIng a umform/clothIng allowance for youth workers
We submIt such polIcy was already In place In part - see earlIer paragraph.
11 In the 1990's a survey was undertaken at the workplace whIch resulted In 90% of
employees endorsIng a umform/clothIng allowance program.
12 The umform/staff clothIng polIcy was amended on May 23 2003 I enclose those
for your records The changes are ObVIOUS when the polIcy IS revIewed.
13 The Employer dId not Implement ItS polIcy appropnately and In fact dId so In an
arbItrary and unreasonable manner In vIOlatIOn of the Management Rights
provIsIOns
14 I refer you to our letter dated December 8 2003 upon whIch the Umon also relIes
The partIculars provIded December 8 2003 are as follows
Clothin2/U niform Allowance
Employees are not oblIged to wear umforms They have a chOIce whether to wear street
clothes or to wear umforms provIded by the Employer ThIS optIOn IS a longstandIng
practIce and IS an optIOn specIfic to the employee In 1999 employees started to
request that the employer provIde such umforms The supenntendent demed the
requests and umforms were not provIded. ThIS resulted In gnevances beIng filed In
1999 2000 and 2001 A copy of the gnevances wIll follow by couner
CommencIng In 2002, employees requests for umforms were granted and therefore, as I
understand the facts, the matter IS resolved on a prospectIve basIs RegardIng the
breach dunng the penod between 1999- 2002 a declaratIOn wIll be sought. In
addItIOn, SInce a declaratIOn does not sufficIently address the vIOlatIOn of the polIcy we
wIll seek monetary damages eqUIvalent to the costs of the umforms that should have
been granted upon request pursuant to the polIcy I understand that the amount IS
approxImately $800 00 - 1 year
We wIll be callIng Yvon ConstantIneau as our wItness on thIS matter
4
The employer noted that the bulk of the gnevances claim a "ViolatIOn of the Mimstry Agreement
and Apparel PolIcy" or "Breach of the Mimstry Agreement and Apparel polIcy concermng
demal ofumform allowance and any other related artIcles" It IS common ground that
"Agreement" In the gnevances IS not a reference to the collectIve agreement but to the Mimstry's
polIcy The employer bnngs ItS applIcatIOn to dIsmISS the gnevances on the grounds that they do
not allege a breach of the collectIve agreement. It IS also of the VIew that the umon may attempt
to assert that the faIlure to provIde umforms was a health and safety concern. However It says
that there IS no such allegatIOn In the gnevances and no such posItIOn has been advanced SInce
the gnevances were filed between 1999 and 2001 For the umon to take that approach now
would be an Improper expanSIOn of the gnevance
The employer also submItted that the Board has no JunsdIctIOn to deal wIth the gnevances as
filed because they allege only a breach of the management nghts clause There IS no specIfic
artIcle alleged to have been vIOlated other than artIcle 2, nor IS there any artIcle adversely
Impacted. There IS no JunsdIctIOn In the Board to generally reVIew management actIOns Here
the claim IS for payment of money damages because umforms were not provIded, yet there IS no
oblIgatIOn In the collectIve agreement to provIde umforms In thIS matter reference has been
made only to artIcle 2 of the collectIve agreement and there IS no nexus to any breach of any
other provISIOn.
The umon agreed that the gnevances do not gIve nse to a claim that artIcle 9 (health and safety)
has been breached, nor do the partIculars raise a claim wIth respect to health and safety
AccordIngly there IS no attempt to expand the gnevance The umon pOInts to paragraph 13 of
the letter of December 16 2004 as captunng ItS claim
The Employer dId not Implement ItS polIcy appropnately and In fact dId so In an arbItrary
and unreasonable manner In vIOlatIOn of the Management RIghts provIsIOns
The umon submItted that It IS not necessary to specIfically gneve another provIsIOn along wIth
artIcle 2, It IS sufficIent to confer JunsdIctIOn where a provIsIOn eXIsts In the collectIve agreement
whIch mIght be adversely affected by management actIOn. As set out above, the employer agrees
wIth that charactenzatIOn. The umon says that It IS the health and safety provIsIOn, artIcle 9 that
5
mIght be adversely affected. The umon submItted that the Board needs to hear the eVIdence In
order to determIne whether there mIght be an adverse Impact on the health and safety artIcle
I find no ment In thIS latter proposItIOn. These are old gnevances The umon was reqUIred by
the Board to provIde partIculars of ItS claims No partIculars were provIded that relate In any
way to an adverse Impact on artIcle 9 nor does the umon now put forward any basIs to support
such an Inference Without a clear statement of the partIculars that mIght gIve nse to the
Inference that the health and safety artIcle has been adversely affected by management actIOn,
embarkIng upon a heanng could only be a conJunng exerCIse
In the alternatIve the umon submItted that there IS a notIOn of reasonable contract admInIstratIOn
that does Indeed support a nght to advance a breach of the management nghts artIcle alone In
support of that proposItIOn the umon relIes on the folloWIng authontIes TTC vATU Localll3
(1999), 82LAC 94th) 335 (Harns) TTCv ATU LocaI1l3(2004) 132L.AC (4th)225
(ShIme) and the cases cIted thereIn.
ArbItrator ShIme drew upon the comments of the Ontano Court of Appeal In Metropolitan
Toronto (Municipality) v C UP.E. Local 43 (1990) 69 D.L.R. (4th) 268 (Ont. C.A) That case
Involved the ImposItIOn of a rule by the employer that reqUIred ambulance dnvers to use theIr
"lIghts and SIrens" on all "emergency" calls Tarnopolsky J A summanzed the Issues before the
Court at page 270 as follows
The Issues In tills appeal are whether the DIvIsIonal Court erred In holdIng that the Board's
decIsIOn should be quashed on the ground that the Board fell Into revIewable error In holdIng
that:
(1) the gnevances In the Instant case were arbItrable In the absence of actual discIphne,
and
(2) the Employer was reqUIred to act reasonably In promulganng rules With discIphnary
consequences.
It can be readIly seen that that case dId not Involve an allegatIOn of a breach of only the
management nghts clause The unJust dIscIplIne artIcle was fully engaged by the "lIghts and
SIrens" rule
6
In hIS reasons, ArbItrator ShIme revIewed a number of authontIes and concluded as follows
Moreover for reasons whIch are explored below I am unable to conclude that there are
substantIve reasons for prohibItmg the ImplIcatIOn of normatIve terms to a management nghts
clause while at the same tIme allowmg ImplIed condItIOns to be Imposed on the umon (Polymer)
and the employees (0 Leary) In that respect, I feel bound b, the approach taken b, the Supreme
Court of Canada.
Havmg regard to the foregomg, It IS m, VIew that there are a number of altemate grounds for
rejectmg the CommIssIOn's ObjectIOn to jUnSdIctIOn
ArbItrator ShIme then went on to consIder the express terms of the collectIve agreement and laws
of general applIcatIOn and to consIder the ImplIed condItIOns of the collectIve agreement, as the
basIs for examInIng the reasonableness of management actIOns regardIng the psychologIcal
harassment of an employee by a supervIsor
FIrst I determIne It IS an ImplIed term of the collectIve agreement that the work of a
supervIsor must be exercIsed In a non-abusIve, non-harassIng manner
Second, adoptIng the approach of Tarnopolsky J A to consIder the agreement In a
holIstIC way I now turn to consIder the collectIOn agreement. I determIne that SectIOn 39
ImplIes the management nghts clause be exercIsed wIth a VIew to the safety of
employees
AccordIngly I determIne that a supervIsor who abuses her/hIs authonty IS actIng contrary
to an ImplIed term In the management nghts clause that reqUIres the supervIsor to ensure
the safety of an employee
I also determIne a supervIsor who acts In a manner that JeopardIzes the psychologIcal
safety of the employee IS actIng contrary to the collectIve agreement.
Fourth, as I have IndIcated earlIer It IS my respectful VIew that the decIsIOn of
Tarnopolsky J A eIther modIfies or supercedes the earlIer decIsIOn of Houlden J A In
[Metropolitan Toronto Board of Commissioners of Police and MTP A (1981), 124 D .L.R.
(3ed) 684 (C A)]
And finally I am of the VIew that a supervIsor who abuses or harasses employees IS
actIng In bad faith
In my VIew the reasons of ArbItrator ShIme In TTC vATU Localll3 supra, are In accordance
wIth the reasons of Bastarache J for the Supreme Court of Canada In Regina Police Assn. Inc v
Regina (City) Board of Police Commissioners [2000] 1 S C.R. 360 at paragraph 25
7
25 To determIne whether a dIspute anses out of the collectIve agreement, we must
therefore consIder two elements the nature of the dIspute and the ambIt of the collectIve
agreement. In consIdenng the nature of the dIspute, the goal IS to determIne ItS essentIal
character ThIS determInatIOn must proceed on the basIs of the facts surroundIng the
dIspute between the partIes, and not on the basIs of how the legal Issues may be framed
see Weber supra, at para. 43 SImply the decIsIOn-maker must determIne whether
havIng examIned the factual context of the dIspute, ItS essentIal character concerns a
subJect matter that IS covered by the collectIve agreement. Upon determInIng the essentIal
character of the dIspute, the decIsIOn-maker must examIne the provIsIOns of the collectIve
agreement to determIne whether It contemplates such factual sItuatIOns It IS clear that the
collectIve agreement need not provIde for the subJect matter of the dIspute explIcItly If
the essentIal character of the dIspute anses eIther explIcItly or ImplIcItly from the
InterpretatIOn, applIcatIOn, admInIstratIOn or vIOlatIOn of the collectIve agreement, the
dIspute IS WIthIn the sole JunsdIctIOn of an arbItrator to decIde see e g. Weber at para.
54 Neyt, Brun~ ick v 0 'Leary supra, at para. 6
Not surpnsIngly ArbItrator ShIme found that by ImplIcatIOn the subJect matter of the TTC/ATU
collectIve agreement Includes on-the-Job harassment of an employee by a supervIsor The
advance In the law represented by ArbItrator ShIme's case IS WIth respect to the remedIes
awarded.
As to the case of TTC vATU Localll3 (Harns) supra, It dealt wIth the fetter on management's
nght to dIscharge a probatIOnary employee a clear lInk Into a provIsIOn of the collectIve
agreement. That was not a gnevance agaInst a management actIOn outsIde of the explIcIt or
ImplIcIt subJect matters of the collectIve agreement. It was a dIscIplIne case
The Instant gnevances are In theIr essentIal character about whether the employer was reqUIred
to provIde umforms to CO' s at CecIl Facer between 1999 and 2002 It IS common ground that
there was no explIcIt provIsIOn In the collectIve agreement addressIng that subJect matter
Further there IS no basIs upon whIch such a provIsIOn IS ImplIed, gIven the absence of any
partIculars, or claim In the gnevance, that mIght provIde any ratIOnale for embarkIng upon such
an enqUIry AccordIngly the Board IS wIthout JunsdIctIOn to consIder these gnevances as they
relate to the provIsIOn ofumforms, and they are dIsmIssed to that extent.
8
Dated at Toronto thIS 10th day of March, 2006