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HomeMy WebLinkAbout2004-2855.Samsone.07-06-14 Decision Crown Employees Grievance Settlement Board Suite 600 180 Dundas Sl. West Toronto, Ontario M5G 1Z8 Tel. (416) 326-1388 Fax (416) 326-1396 Commission de reglement des griefs des employes de la Couronne Bureau 600 180, rue Dundas Ouest Toronto (Ontario) M5G 1Z8 Tel. : (416) 326-1388 Telec. : (416) 326-1396 Nj ~ Ontario GSB# 2004-2855, 2004-2857 UNION# 2004-0582-0062,2004-0582-0064 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT BETWEEN BEFORE FOR THE UNION FOR THE EMPLOYER HEARING Before THE GRIEVANCE SETTLEMENT BOARD Ontario Public Service Employees Union (Samsone) - and - The Crown in Right of Ontario (Ministry of Community Safety and Correctional Services) Daniel Harris Richard Blair Ryder Wright Blair & Holmes LLP Barristers and Solicitors Paul Meier Counsel Ministry of Government Services February 21,2007. Union Employer Vice-Chair 2 Decision The Proceedings This decision deals with two grievances before the Board filed on behalf of Robert Samsone. They both relate to a letter sent to the grievor by Michael Stevenson dated Jul 20, 2004. The letter is Mr. Stevenson's response to a WDHP complaint made by the grievor against the Superintendent of the jail where he worked. The Superintendent purportedly had kept files about the grievor that detailed past allegations against him that had not been sustained. The grievances against Stevenson's letter arose because in the letter Mr. Stevenson recounted those past allegations in detail, and he is alleged to have distributed his letter farther and wider than was at all necessary. The Employer now brings this pre-hearing application to dismiss the grievances without a hearing. The Submissions of the Parties The Employer says that the Union has not made out aprimafacie case. The Union was required to provide particulars of its claims and those particulars do not disclose any breach of the collective agreement. The Employer also says that the grievances are, in essence, allegations of defamation, and the Board lacks the jurisdiction to hear such a claim. Finally, the Employer submitted that the Union's particulars are an attempt to expand the grievance. The Union submitted that the Employer was seeking to hold the Union's particulars to the same standard as civil pleadings, which they are not. As to the defamation issue, the Union said that it was far from settled that the defamation issues here did not arise expressly or inferentially from 3 this collective agreement. The Union said that there was no expansion of the grievances in the particulars provided. The grievances were, and still are about the contents of Mr. Stevenson's letter and the breadth of its distribution. In reply, the Employer submitted that no prima facie case has been made out of a breach of the collective agreement. Further, there is no demonstrated link between the exercise of management's rights and any provision of the collective agreement. The parties relied upon the following authorities: Phillips v. Harrison (2000), 196 D.L.R. (4th) 69 (Man. C. of A); Haight-Smith v Neder [2002] B.C.J. no.375 (B.C. C. of A); Vancouver Hospital and Health Sciences Centre and Hospital Employees' Union (2004),124 L.AC. (4th) 353 (McDonald); Giorno v. Pappas (1999),42 O.R. (3d) 626 (Ont. C. of A); Sloan v. York Region District School Board, [2000] OJ. no. 2754 (Ontario C. of A); Riverdale Hospital and C. UP.E., Local 79 (Reyes) (2000),93 L.AC. (4th) 195 (Surdykowski); Toronto East General & Orthopaedic Hospital Inc. and A.A.H.P.O (1989) 8 L.AC. (4th) 391 (Springate); OPSEU (Dobroff et al) and Ministry of the Environment, GSB #2003-0905 et al (Dissanayake); ABT Building Products Canada Ltd and c.E.P., Loc. 434 (Shatford) (2000), L.AC. (4th), (Christie); Schneid man v Canada (Customs and Revenue Agency (2006) 148 L.AC. (4th) 385 (Fed. St. of Can.); OPSEU (Andersen et al) andMinistry of Correctional Services (Jun.27, 2002), GSB #2001-1093 (Brown); OPSEU (Andersen et al) and Ministry of Correctional Services (Nov. 12, 2002), GSB #2001-1093 (Brown); OPSEU (Lesieur et al) and Ministry of the Environment (Dec. 14,2005), (Briggs); OPSEU (Belanger et al) andMinistry of Community Safley and Correctional Services, GSB # 1999-1782 et al. (March 10,2006), (Harris); OPSEU (Andrews et al) andMinistry of Health, GSB# 1989-1815, (May 15, 1992), (Urbain); OPSEU (Taylor- Baptiste) and Ministry of Correctional Services, GSB # 1988-469, (April 15, 1992), 4 (Dissanayake); Seneca College and OPSEU (Olivio), 102 L.AC. (4th) 298, (P. Picher); OPSEU v. Seneca College of Applied Arts & Technology 2006 CanLII 14236 (ON C.A); Fanshawe College and OPSEU (2002), 113 L.AC. (4th) 328, (Burkett); OPSEU and Seneca College of Applied Arts & Technology, [2006] S.C.C.A No.281, (McLachlin, Dharron and Rothestein). Reasons for Decision These grievances are dated August 13, 2004 and allege contraventions of articles 2,3,9 and 21: ARTICLE 2 MANAGEMENT RIGHTS 2.1 F or the purpose of the Central Collective Agreement and any other Collective Agreement to which the parties are subject, the right and authority to manage the business and direct the workforce, including the right to hire and lay-off, appoint assign and direct employees; evaluate and classify positions; discipline, dismiss or suspend employees for just cause; determine organization, staffing levels, work methods, the location of the workplace, the kinds and locations of equipment, the merit system, training and development and appraisal; and make reasonable rules and regulations; shall be vested exclusively in the Employer. It is agreed that these rights are subject only to the provisions of this Central Collective Agreement and any other Collective Agreement to which the parties are subject. ARTICLE 3 - NO DISCRIMINATION / EMPLOYMENT EQUITY 3.1 There shall be no discrimination practiced by reason of race, ancestry, place of origin, colour, ethnic origin, citizenship, creed, sex, sexual orientation, age, marital status, family status, or handicap, as defined in section 10(1) of the Ontario Human Rights Code (OHRC). 3.2 There shall be no discrimination or harassment practiced by reason of an employee's membership or activity in the Union. ARTICLE 9 - HEALTH AND SAFETY AND VIDEO DISPLAY TERMINALS 9.1 The Employer shall continue to make reasonable provisions for the safety and health of its employees during the hours of their employment. It is agreed that both the Employer and the Union shall co-operate to the fullest extent possible in the prevention of accidents and in the reasonable promotion of safety and health of all employees. 5 ARTICLE 21 - DISCIPLINE AND DISMISSAL 21.1 It is understood that the right of the Employer to discipline or dismiss employees shall be for just cause. The Employer's right to discipline or dismiss is subject to the right of an employee to grieve such action. The Board's jurisprudence is clear that there can be no freestanding allegation of a breach of article 2. Rather, the facts must disclose that there is a provision of the collective agreement, which is adversely impacted by the exercise of management's rights that is at issue. Cases such as Lesieur and Belanger were dismissed without a hearing because there was no provision of the collective agreement that was adversely impacted. That is, there was no breach of the collective agreement on any view of the facts alleged. Those cases are consistent with the general approach to be taken in determining whether the Board has the jurisdiction to hear a matter. The Supreme Court of Canada in Weber v Ontario Hydro, (1995) 25 C.R. 929 laid down the test for determining an arbitration board's jurisdiction. That case was considered by the Ontario Court of Appeal in Giorno v Pappas, supra. In that case, an OPSEU member, seconded to the Ontario Rent Review Hearings Board, sought to sue a Board Member who had written and circulated a memorandum about her regarding her work performance. She had previously grieved, and the grievance had been settled. The action was dismissed on the basis that the Court lacked jurisdiction to hear the matter. The Ontario Court of Appeal upheld that decision: The issue on this appeal is whether on these facts the principle enunciated in Weber, supra, precludes the appellants from seeking redress from the respondents in the courts. In Piko v. Hudson's Bay Co., a judgment of the Ontario Court of Appeal released November 19, 1998 [reported 41 O.R. 93d) 729, 167 D.L.R. (4th) 479], this court recently had occasion to consider Weber. 6 Speaking for the court, Laskin lA said this at para. 9 [pp. 732-33]: Weber holds that any dispute arising under a collective agreement, regardless of how the dispute is characterized, must be arbitrated, not litigated in the courts. Whether a dispute should be arbitrated or litigated turns on the nature of the dispute and the terms of the collective agreement. No matter how the claim is framed, if "the dispute, in its essential character, arises from the interpretation, application, administration or violation of the collective agreement" it must be arbitrated. .... Parties cannot avoid arbitration simply by pleading a common law tort. This approach reflects the importance of the regime of exclusive arbitration which is central to Canadian labour legislation and which is exemplified by s. 19 (1) of the Crown Employees Collective Bargaining Act. Such a regime is designed to resolve workplace disputes expeditiously and economically through the specialized expertise oflabour arbitrators. In setting out this approach in Weber McLachlin l said this at p. 959 S.C.R., p.604 D.L.R.: It satisfies the concern that the dispute resolution process which the various labour statutes of this country have established should not be duplicated and undermined by concurrent actions. It conforms to a pattern of growing judicial deference for the arbitration and grievance process and correlative restrictions on the rights of parties to proceed with parallel or overlapping litigation in the courts... As Laskin lA said, whether a dispute can be litigated or must be arbitrated turns on the nature of the dispute and the terms of the collective agreement, not on the legal characterization of the wrong alleged. The court must examine the facts of the dispute to determine if the essential character of the alleged conduct is covered by the terms of the collective agreement. In Lesieur and Belanger the essential character of the alleged conduct was not covered by the collective agreement. The instant matter concerns allegations of impropriety in the drafting and circulating of Stevenson's letter. The cases submitted by the Union set out the following broad test for determining whether such matters are properly before an arbitration board: Thus, otherwise defamatory statement may be considered to be work related and to be adjudicated pursuant to the alternative dispute mechanism if: 1. the comments concern the employee's character, history, or capacity as an employee; 7 2. the comments were made by someone whose job it was to communicate a workplace problem; and 3. the comments were made to persons who would be expected to be informed of workplace problems. This formulation was developed by the Manitoba Court of Appeal in Phillips, supra, and adopted by the British Columbia Court of Appeal in Haight-Smith, supra. However, it is more restrictive than the analysis in Giorno where the Ontario Court of Appeal says: In short, I conclude that the essential character of the conduct complained of by the appellants is covered by the collective agreement. The dispute is therefore one that arises under the collective agreement and had to be resolved in the arbitration process. It cannot be resolved in the courts. Is this conclusion affected by the identity of the respondents? The appellants argue that relief is sought in the civil litigation against the respondent Pappas and the respondent Board, neither of whom are the employer under the collective agreement, the party from whom a remedy is normally sought at arbitration. I cannot agree that this makes a difference in this case. As to the respondent Board, Ms. Giorno correctly treated it as part of the employer for the purposes of the grievance process. Indeed, the settlement that was reached required certain steps to be taken by Board officers. The civil action against the Board must be seen as an action against an entity which is, for this purpose, part of the employer and subject to the collective agreement. Hence, the Weber principle is applicable to the civil action against this respondent. As to the respondent Pappas, while he is an employee of the respondent Crown, he had no managerial responsibility over Ms. Giorno. Nor was he an employee covered by the collective agreement. Despite this, given that this dispute arises under the collective agreement the principle in Weber applies. As Laskin lA said in Piko, supra, at para. 13 [p.734]: Where an employee has sued another employee for a workplace wrong, this court has held that bringing an action against a person who is not a party to the collective agreement will not give a court jurisdiction if the dispute, "in its essential character", still arises under the collective agreement. Laskin lA was referring to the endorsement of this court in Ruscetta v. Graham (1998), 36 C.C.E.L. (2d) 177, [1998] OJ. No. 1198 (C.A), leave to appeal to the Supreme Court of Canada refused October 15, 1998, and Dwyer v. Canada Post, [1997] OJ. No. 1575 (C.A). These decisions simply reflect the principle in Weber. Where, as here, the essential character of the dispute is covered by the collective agreement, the arbitration process 8 allows the employee to seek an appropriate remedy. While the remedy at arbitration may be against the employer rather than the fellow employee, the remedy is nonetheless real. To preclude the employee from suing another employee for the workplace wrong in such circumstances does not deprive that employee of an ultimate remedy for that wrong. Rather, it prevents the undercutting of the dispute resolution process that is given exclusive statutory jurisdiction over disputes that arise under the collective agreement. In Giorno, the person sending the memo, Pappas, had no managerial authority. Accordingly, the second requirement, set out above, that he be a person "whose job it was to communicate a workplace problem" was not made out. Nonetheless, the Ontario Court of Appeal recognized that this Board would have had jurisdiction. I turn now to the facts at hand. Even applying the more restrictive analysis of Phillips, it is evident that the essential character of this dispute arises from the collective agreement. First, the written comments circulated by Stevenson were a response to a complaint raised by the grievor with respect to files being kept about him by a manager, which the grievor said were "discreditable, vexatious comments." The written comments circulated by Stevenson explicitly detail the grievor's explanations to the WDNP investigator as to the nature of the documents being kept about him. They certainly include comments about his character, history and capacity as an employee. Second, Mr. Stevenson wrote those comments in his capacity as the Regional Director of the Eastern Region, Ministry of Community Safety and Correctional Services. He clearly is someone whose job it is to communicate a workplace problem. Third, a central issue here is whether the comments were made to persons who would be expected to be informed of workplace problems. A review of the grievances themselves establishes that, at their heart, they raise allegations of defamation and harassment. I have not been directed to any authority of this Board that 9 precludes the hearing of such allegations. Further, from the analysis set out above, I conclude that the essential character of the conduct complained of is covered by the collective agreement. The entire factual construct of these matters is related to the workplace. Whether the conduct complained of was, as a matter of fact and law defamatory, or whether there was qualified privilege are matters that, in this case, can only be determined after a hearing on the merits. The Giorno case involved an OPSEU member working for the Crown in Right of Ontario who was concerned that written comments about her were defamatory. Those comments ere not written by a supervisor, so could not have been considered disciplinary. Here, the Union alleges that the Stevenson letter may amount to discipline. It also says that the letter is contrary to articles 3 and 9. The Employer says that there is no specific head of discrimination pleaded pursuant to article 3 and no risk to the grievor pleaded as would found a claim under article 9. With respect to article 3, both grievances refer to the alleged behaviour as harassment and both indicate that the grievor was the local Union president at the time. As to article 9, there is a dispute about the truthfulness of a comment in the letter attributed to the grievor that he might be ostracized in the workplace a result of his listed behaviours. He works in a j ail, such a situation might put him at risk. 10 Accordingly, the Employer's preliminary objection that the Board lacks jurisdiction to deal with these matters is dismissed. Dated at Toronto, Ontario on this 14th day of June, 2007