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HomeMy WebLinkAbout2001-0507.Fox et al.01-09-05 Decision ~M~ om~o EA1PLOYES DE LA COURONNE _QJ_L i~~i~~~i~T DE L "ONTARIO COMMISSION DE REGLEMENT "IIIl__1I'" BOARD DES GRIEFS Ontario 180 DUNDAS STREET WEST SUITE 600 TORONTO ON M5G 128 TELEPHONElTELEPHONE. (416) 326-1388 180 RUE DUNDAS OUEST BUREAU 600 TORONTO (ON) M5G 128 FACSIMILE/TELECOPIE. (416) 326-1396 GSB#0507/01, 0508/01, 0509/01 UNION# 01 B204, 01 B205, 01 B206 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN Ontario Public Service Employees Union (Fox et al) Grievor -and- The Crown In Right of Ontario (Ontario Human Rights Commission) Employer BEFORE Susan L Stewart Chair FOR THE GRIEVOR Gavin Leeb Grievance Officer Ontario Public Service Employees Union FOR THE EMPLOYER Lisa Compagnone Counsel Legal Services Branch Management Board Secretariat HEARING August 31, 2001 2 DECISION The hearing in this matter was convened to deal with the Union's motion for interim relief The Employer had a preliminary objection to the Union's motion that it wished determined before evidence and argument on the main motion was adduced It was the position of the Union that the proceedings should not be bifurcated and that this objection ought to be addressed in final submissions after the evidence on the main motion was heard The Board granted the Employer's request that the preliminary objection be determined before the matter proceeded further As the parties intended to call a number of witnesses on the motion, it was apparent that the entire matter could not be dealt with in the one day that was scheduled As well, the Employer's success in its objection would have rendered any further proceedings in relation to the motion unnecessary The three grievors are Investigation Officers with the Ontario Human Rights Commission and have each filed a grievance dated June 27, 2001, in which a violation of Articles 2 and 21 1 of the Collective Agreement has been alleged and in which it lS claimed that " I have been subjected to unjust and unreasonable rules and regulations and been threatened with termination of my employment " The grievances arose from letters sent to the respective grievors advising them of certain 3 targets for the closing or forwarding on of files within a specified time frame The letters go on to advise the grievors that if cases are not completed as prescribed, "your continued employment with the Commission will be reviewed and a decision made about your employment status" The Union seeks interim relief precluding the Employer from taking actions that would have financial consequences for the grlevors, that lS suspending or discharging them, until their grievances have been decided and thus the validity of the directive determined It lS the position of the Employer that the Board is without jurisdiction to grant interim relief on the basis that the relief requested is not related to a "procedural matter" within the meaning of s 48 (12) (i) of the Labour Relations Act and, as well, that while disciplinary action with financial consequences is a possibility, it has not been imposed at this point and this motion is therefore premature By virtue of its incorporation pursuant to the provisions of the Crown Employees Collective Barqaininq Act, s 48(12) of the Labour Relations Act has application to this proceeding Subsection 48 (12) (i) provides an arbitrator with power "to make interim orders concerning procedural matters" The nature of the Board's jurisdiction pursuant to this provision has been addressed in Ministry of Labour and OPSEU (Nield) 1471/96 (Roberts) , a decision that was the subject of submissions on both 4 aspects of the Employer's preliminary objection Because of the emphasis on this case in the submissions of the parties and the fact that it was upheld on judicial reVlew, I will refer to it In some detail Nield involved the case of an Occupational Health and Safety Inspector who was required by the Employer to divest himself of an interest in a business on the basis that his ownership placed him in a conflict of interest A grievance was filed by the Union in connection with this requirement Subsequently the grievor was advised that if he did not comply with the requirement to divest by a specified date, he would be subject to discipline, up to and including discharge The Union sought interim relief from the Board enjoining the Employer from requiring divestment and from discharging the grievor It was the position of the Employer that the order sought by the Union was substantive, not procedural in nature, and thus beyond the Board's jurisdiction and in that regard made reference to Re Beachvilime Ltd. and Chemical Workers Union, Local 3264 (1989) , 7 LAC (4th) 409 (Hinnegan) , wherein it was determined that arbitrators do not have jurisdiction to determine anticipated breaches of a collective agreement The Board agreed with the principle expressed in Re Beachvilime, and stated, at p 9 of the decision, that 5 There is no procedural matter to trigger an interim order until there is a proceeding before the Board There lS no proceeding before the Board until the union refers to it a grievance alleging that the employer has already breached in some way the CECBA or the collective agreement The decision goes on to state, at pp 9-10, that It follows that the Board does not have jurisdiction to enjoin the employer from disciplining or discharging the grievor, Mr Nield, even though it was anticipated at the hearing that the employer intended to discharge him on the day following the deadline of October 15 The only grievance that was before the Board was the one Mr Nield filed on August 6, 1996 The only breach it complained of was an unreasonable exercise of managements' rights in requiring him to divest himself of his interest in the business It did not complain that the imposition of a deadline under threat of discipline was likewise a breach of managements' rights In fact, it could not because the deadline of October 15 was not imposed until some time after the grievance was filed The imposition of the October 15 deadline under threat of discipline is not the subject of any proceeding before the Board Until it becomes one, the Board does not have any jurisdiction to issue an interim order concerning it This does not mean, however, that the Board is without jurisdiction to issue an interim order in the present case Once Mr Nield's grievance of August 6, 1996 was referred to the Board, the reasonableness of management . . . In requlrlng him to divest himself of his interest in the business became the subject of a proceeding before the Board The Board undoubtedly has jurisdiction under the Crown Emplovees Collective Barqaininq 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 of whether Mr Nield should be permitted to retain his interest in the business pending determination of the merits of the grievance I will now proceed to address this question The decision goes on to address the merits of the interim relief motion and ultimately determined that the test was met and an order should be granted for a specified period The Employer's application for judicial review of this and a 6 related decision in which the interim order was extended was rejected by the Court in a decision dated January 22, 1997, wherein the Court expressed the view that the reference to "procedural matters" in s 48 (12) (i) of the Labour Relations Act was intended to have "broad meaning" The Court also notes that neither interim order decided the central issue of whether the grievor had a conflict of interest or made a finding relevant to its determination In her submissions on behalf of the Employer, Ms Compagnone referred me to a decision of the Ontario Labour Relations Board in Ontario (Manaqement Board of Cabinet) [1996] OLRB Rep September/October 780, wherein it was concluded that s 48 (12) (i) should be interpreted as applying to " grant arbitrators to the power to run hearings and direct the conduct of the parties In the proceeding " but not " as granting arbitrators the right to make a variety of orders that govern workplace conduct and rights pending a final decision" This decision predates the Nield decision of this Board, as well as the Court's decision upholding Nield, wherein a "broad meaning" of the phrase "procedural matters" contained in s 48 (12) (i) was endorsed Moreover, a different analysis by another tribunal does not compel a reconsideration of an approach taken by the Grievance Settlement Board As was noted by Mr Shimel the former Chair of this Board in Toronto Area Transit Operatinq Authoritv and 7 Amalqamated Transit Union (Blake et al), 1276/87, decisions of a panel of the Board are decisions of the Board and are not subject to reconsideration or appeal The Grievance Settlement Board speaks . . providing the parties with consistent In one VOlce, direction and discouraging the relitigation of lssues that have been ruled upon It is only in exceptional circumstances, circumstances that extend beyond manifest error, that the Grievance Settlement Board would depart from the path established in a previous decision It should be noted that Ms Compagnone did not specifically argue that the standard of review established in the Blake decision was met here Such an argument would have been surprlslng, given the Court's endorsement of the Nield decision in connection with a statutory interpretation It was argued, however, that there was support for the Employer's position in Nield It was emphasized that the ultimate result in that decision was that the Board determined that it had no jurisdiction to enjoin the employer from disciplining or discharging the grievor While Ms Compagnone lS clearly correct in this regard, I agree with Mr Leeb that these matters are distinguishable and that the rationale of Mr Roberts in that decision is consistent with a determination that the Board has jurisdiction to consider whether interim relief should be granted in this case As the foregoing excerpt from the Board's decision in Nield demonstrates, the reason for the determination that the 8 Board did not have jurisdiction to enjoin the imposition of discipline or discharge lS that it did not have before it a grievance relating to the imposition of a deadline under threat of discipline The threat of discipline lS specifically raised in the grievances in this case Accordingly it is my view that the rationale of the decision in Nield clearly supports the notion that the Board does have jurisdiction to consider interim relief in connection with this case I turn now to the Employer's position that the Union's motion is premature, on the basis that no discipline has in fact been imposed While there lS considerable force to the notion that matters which are speculative are not properly the subject of grievance arbitration, the Employer has acknowledged that discipline as contemplated by the request for interim relief lS one of the tools available to it and it may in fact be utilized The issue of prematurity in an interim relief application was addressed by this Board in Manaqement Board Secretariat and OPSEU 1196/97 (Dissanayake) In that case the Employer argued that the request was premature because the RFP had not yet closed and no contracts had been awarded The Board rejected the Employer's prematurity argument, making the following comments at pp 3-4 of the decision Arbitrators have held, and the courts have upheld, that employees may grieve the mere promulgation of a policy, without waiting for the policy to be applied to the 9 detriment of any particular employee Such a grievance lS not premature See Re Municipalitv of Metropolitan Toronto and CUPE (1987) 62 o R ( 2d) 636 (Div Ct ) revd 69 D L R (4th) 268 (Ont Ct of App) , leave to appeal to S C C refused 120 N R 192n (S C C ) Similarly, particularly considering that this is an application for interim relief, it does not make sense to hold that an application is premature until the impugned action is carried out and the harm is done The purpose of interim relief lS to prevent the potential for harm being done, where the union can establish certain conditions In my view the foregoing analysis lS clearly applicable to the issue before me and I therefore reject this aspect of the Employer's objection to the Board's jurisdiction to consider the Union's application for interim relief Ms Compagnone argued further that an interim order enjoining the imposition of discipline or discharge would fall within the prohibition contemplated by the Court in Nield in relation to a finding with respect to the central lssue or a finding relevant to its determination It is my view that consideration of the nature of any order which might be granted is more properly determined in the context of the main motion Only if the Union is able to meet the test for interim relief will the nature of relief to be granted be considered It will then, and only then, be necessary for consideration to be given to the nature of the relief that is appropriate in the circumstances and is in accordance with the direction of the Court in Nield It lS therefore unnecessary for me to address the submissions of the parties in this regard in relation to the 10 decision in Re Brewers' WarehousinG Workers' Provincial Board (1998) 74 LAC (4th) 113 (Carrier) In summary, for the foregoing reasons I have concluded that the Employer's preliminary objection to the Board's jurisdiction with respect to the Union's request for interim relief must be dismissed Accordingly, the hearing on the merits of the interim relief application will proceed I note that I have heard no evidence in connection with this motion and thus that the motion may be heard by someone other than myself Dated at Toronto, this 5th day of September, 2001 II S L Stewart, Chair