HomeMy WebLinkAboutZhao Group 23-03-08
IN THE MATTER OF AN ARBITRATION
UNDER THE COLLECTIVE AGREEMENT
AND THE ONTARIO LABOUR RELATIONS ACT
BETWEEN:
SCARBOROUGH HEALTH NETWORK
(“the Employer”)
AND
ONTARIO PUBLIC SERVICE EMPLOYEES UNION
(“the Union”)
Grievance of Zhao Group
2021-0575-0007
AWARD
Arbitrator: Barry Stephens
Union Counsel: David Wright - Ryder Wright
Employer Counsel: Greg Power - Hicks Morley Hamilton Stewart Storie
Heard by Video Conference on February 9, 2023
AWARD
[1] This is a group grievance, filed on October 1, 2021, which originally involved three
individual grievors but one of the three has since resigned. The other two, Ian Zhao and
Rhoda Bryan, challenged the reasonableness of the employer’s COVID vaccination policy.
The policy required hospital employees to get vaccinated against COVID and to disclose
their vaccination status. Unvaccinated employees were permitted a period of
approximately one month to obtain vaccinations and could report to work only on the
condition that they submitted to regular PCR COVID testing. The grievors were of the
view that the policy was unreasonable.
[2] At the hearing union counsel advised that the union in this matter, OPSEU, was
not challenging the reasonableness of the employer’s COVID policy as of the date of the
grievance, October 1, 2021. OPSEU did not take the position that as of the date of the
grievance the policy was a violation of the collective agreement or any relevant
legislation. The union indicated it would not call any evidence, although it would not
oppose allowing the two grievors an opportunity to address the Board. The employer
similarly did not object to the grievors making statements, and both were given an
opportunity to speak. These statements were not taken under oath, and no evidence was
tendered, aside from copies of the grievance and the employer’s policy.
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[3] The employer characterized the circumstances as a non-suit, citing the decision in
White v. Canadian Union of Shinglers and Allied Workers, [1996] OLRB Mar/Apr. 215;
[1996] Canlii 11216, wherein the OLRB stated at paragraph 25:
“A nonsuit motion is in effect a ‘no evidence’ motion; that is, the moving party
asserts that the party which has the onus in the proceeding (or which has the
onus with respect to an issue which if 1996 CanLII 11216 (ON LRB) decided
against it would be dispositive of the proceeding), having had a full and fair
opportunity to do so, has failed to make out a prima facie case for the relief it
seeks; that is, that, on its own evidence, there is no reasonable possibility that
the party responding to the motion can succeed. That is the test applied in
nonsuit motions before the Board.”
Furthermore, the jurisdiction of an arbitrator, as defined by s. 48 of Ontario Labour
Relations Act, required there to be a “difference between the parties.” The only parties
to a collective agreement are the employer and the bargaining agent. In this case, both
parties agreed that the employer’s policy was reasonable as of the date of the grievance,
and therefore there was no “difference” between them giving rise to the jurisdiction of
an arbitrator.
Conclusion and Decision
[4] It is my conclusion that this grievance cannot proceed. There is no “difference”
between the parties as stipulated in s. 48 of the Act and, as a result, there is no jurisdiction
in this Board to enquire further into the issues raised by the individual employees.
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Moreover, there was no evidence tendered upon which a prima facie case could be based.
Given these considerations, the grievance must be dismissed.
________________________
Barry Stephens, Arbitrator,
March 8, 2023