HomeMy WebLinkAboutTodd et al 02-10-04
10/10/2002 14:58 FAX 613 567 2921
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IN THE MATfER OF AN ARBITRATION
BETWEEN:
ONTARIO PUBLIC SERVICE EMPLOYEES UNION
("the Union")
and
ROY AL OTTAWA HEALTHCARE GROUP
("the Employer" or "the Hospital")
AND IN THE MATTER OF GRIEV mcns FlLED BY MARGIE TODD,
DANIEL NEWCOMBE, BONNIE MACDONALD
BEFORE:
The Honourable George W. Adams, Q,C'J Arbitrator
APPEARANCES:
For the Union:
Susan Ballantyne, Counsel
Laurie Brown, Staff Representative
Brent Rothwell, Chief Steward. OPSEU Local 439
For the Employer:
Russse1 W. Zi.nn, Counsel
Catherine TIwmas, Director ofI-Iuman Resources
Hearing; ndd at Uttawa OIl. September 13, :Wtl2
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Award
This award deals with a preliminary issue raised by the Empl?yer.
The threc grievors are employed in Brockville at a hospital facility that was
known as the Brockvllle Psychiatric Hospital (PH). The governance and management of
the PH were transferred to the Royal Ottawa Health Care Group at the direction of the
Health Services Rcstrncturing Commission C'HSRC") pursuant to a Memorandrun of
Agreement Between the Crown and the Hospital C~the T....ansfer Agreement"). As a result
of the Public Sector Labour Relations Transition A.ct (PSLRTA), tbe transfer did not
involve a continuance of the bargaining rights of the union or the collective agreement
which had previously applied to these ~IDployees. Instead, any continuation of their tenus
and conditions of employment was dealt with in the Transfer Agreement. Therefore, lll1til
the employees became unionized once again. their contracts of employment were as
provided for in the Transfer Agreement.
Ot~er background facts, before turning to the relevant provisions of the Transfer
Agreement. are that: (1) the Union became eertified as the bargaining agent for the
grievors and their fellow employees by an Ontario Labour Relations Board decision dated
February 2,2001; (2) Notice to Bargain was thereafter given to the Employer hythe
Union, a No-Board Report was issued May 13, 2001 and the parties are now awai6ng an
arbitratjon of their outstanding differences; (3) Daniel Newcombe>s grievance was filed
January 2. 2002, Margie Todd's grievance was filed March 5,2002 and Bonnie
MacDonald's grievance was filed May7) 2002; and, finally. (4) other grievances filed
pursuant to the Transfer Agreement have been resolved between these palties since the
Union was certified ('without prejudice to the settlement becoming a precedent" or words
to that effect. While these preyjonsly settled grievances bad been referred to arbitration,
the instant grievances are the first dispuLes to actualJy come before an arbitrator. These
latter grievances claim. for Newcombc.violations of articles 2-10. 2-27 (health and safety,
discipline and dismissal); for Todd, discipline without cause; and, for MacDonald,
discipline '\vithout just cause.
'['he Employer relies on AIticle 3.07 ofthe Transfer Agreement in subrnitting that
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I have no jurisdiction to entertain these grievances because they were filed well after the
Union was certified. Article 3.07 of the Transfer Agreement provides:
3.07 The terms of this Agreement with respect to access to
arb; tration (Article 21) shall apply to all emp10 yees specified
in Schedule "A" unless subsequent to the transfer, the employees
become represented by a Bargaining Agent.
And Article 21 provides:
ARTICLE 21 - ARBITRATION
21.01 A dispute arising out of the interpretation, application or administration
of this Agreement between the Hospital and the Crown shall be resolved
as follows. The party raising the issue shall do so in writing within 10 days
ofbecoming aware of its existence. The parties will meet within 10 days
thereafte:r, with a view to resolving the issutl. Should the parties be unable
to resolve the issue wit~n 10 days of such meeting, it will be referred to
Arbitration before George Adams. The costs of the Arbitration will be
divided equally between the parties to the Arbitration. The decision ofthe
Arbitrator shall be final ro::rd binding 011 the parties and not subject to
appeal.
21.02 Any dispute arising out of the interpretation, .application or administration
of this Agreement between the Hospital and any Employee listed in
Schedule IlA" shall be resolved as follows: The party raising the issue
shall do so in writing within 10 days of becoming aware ofits existence.
The parties will meet within 10 days thereafter) with a view to resolving
the issue. Should the parties be unable to resolve the issue within 10 days
of such meetiug, it will be referred to Arbitration before George Adams,
The costs of the Arbitration will be divided equally between the parties to
the Arbitration, The decision of the Arbitrator shall be final i1Tld binding
on the parties and not subject to appeal.
The Employer points ont that the Union was not a party to the Transfer
Agreement and that it is not relevant what the Union would have negotiated or intended
had it been one of the negotiating parties.
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Thc DOlon submits that the phrase in Article 3.07 whjch states "unless subsequent
to the transfer, the cmployees represented by a Bargaining Agent" must have intended the
meaning "unless represented by a bargaining agent and covered by a collective
agreement" (emph3Sis added) as is specifically provided for in Article 5 (Wages). Article
6 (Hours of Work), Article 7 (Benefits), Article 8 (Working Conditions ~ including the
just cause clause fot\nd at Schedule C, 1-34), Article 9 (premium Payments), Article 10
(Vacation) and Article 11 (Leaves of Absence). If this meaning is not implied, tbe
employees would have their substantive Transfer Agreement rights but no practical
method of enforcement. The Ul1ion submits that the wording of these other provisions in
the same agreement creates an ambjguity in Article 3.07 ~ a clause which the Union
submits amounts to ail exclusion clause. It is argued that this resulting ambiguity should
be interpreted against the Employer (to include a collective agreement) and in favour of
third party beneficiary employees in the same marmer as an insured is favoured under the
ambiguous terms of an insurance contract. See Bird Estate v. Canada Life Insurance
Co.(2001), 57 O.R. (3d) 180; Manulife Bank of Canada v. Conlin (1996), 139 D.L.R.(41IJ)
426; and Re Medis Health and Pharmaceutical Services Ltd. and Teamsters, Chemical
and Allied Workers, Local 424 (2000),93 L.A.C. (41h) 118 (A1mstrong), Alternatively,
the Union submits that the attempted exclusion of Article 21 by Article 3.07 simply
because the employees have become represented by a trade union COlJstltutes unlawful
discrimination and is contrary to public policy. Accordingly, if there is doubt as to the
meaning of Article 3.07, it should be given a lawful xneaning by implying continued
access to the Article 21 arbitration mechanism until a collective agreement is negotiated.
However, if the Employer is correct, the Union contends that Article 3.07 should be
struck down as contrary to p'O.blic policy. The Union also submits that Article 21 was
"frozen" in the employee's terms and conditions of employment upon certification and,
thereafter, could not be excluded. It further submits that the Employer has waived this
objection to my jurisdiction by entcrtaining earHer grievances.
I have come to the conclusion that the prcHminalY objection to my jurisdiction
must be dismissed. The Employer, however, did not waive this objection by settling the
earlivT grievances hecause ofthe wording ofthcsc settlements ~lJld because '....aivcr simply
cannot be rW'lde oul ofthcse facts. The issue is one ofjuxisdiction aod, in any event, there
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is no evidence of prejudice to these grievors. But r accept that the meaning of the
Transfer Agreement. when cODstmed as a whole, is ambiguous. The other provisions of
the agreement relied on by the Union create and resolve this ambiguity as does Article 18
which provides:
ARTICLE 18 - COLLE'CTIVE AGREEMENT
18.01 Should any of !he Employees covered by this Agreement become
subject to a Collective Agreement to which the Hospital is a party,
the provisions oftllat CoUective Agreement shall prevail over the
terms of this Agreement.
The Employer's position has th$l effect ofundem1ining the substantive rights
which it accepts are preserved post certification until a collective agreement prevails
PUrsllilllt to Arlic1e 18. The snbstantive rights of employees under the Transfer
Agreement will mean vcry little if there is no effective forur.n for their enforcement The
commencement ota lawsuit in the civil courts each time there is an alleged violation
seems inconsistent with this Employer's commitments in Articles 1.02 and 1.03 to a
smooth transition and fair treatment to all employees. Indeed, in the context of discipline
and dismissaL, a court is unlikely to have the remedial authority of an arbitrator lUlder the
Transfer Agreement.
For these reasons, if the parties to the Transfer Agreement, intended to remove an
employee's access to Article 21 (arbitral enforcement) notwithstanding the continued
existence of the many important workplace rights provided for by the Transfer
Agreement, this intention shouLd have been made express. Article 18 makes clear that
the Transfer Agreement applies until a collective agreement is negotiated and this same
intention is lJ"l2.de clear in many other articles oftlle Transfer Agreement. Therefore,
without greater specificity to the contrary, r find it more reasonable to conclude that
Article 3.07 is a short form expression intended to equate the phrases "unless represented
by a bargaining agent" and Hcovered by a collective agreement". Indeed, in ordinary
parlance they would be thought to be synonymous. i.e. the value in being represented by
a union is in having a collective agreement. AB explained next, this jnterpretation also
avoids <Hllin1aw[ullfiilUlL
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Alternatively, I agree with the Union that Article 21 became frozen in the terms
and conditions of employment of these employees upon the application for certification
ofthe Union and} as a matter of public policy, could not be changed by Article 3.07 upon
the Union's certification even if this was the intent of the parties to the Transfer
Agreement. Without evidence of a bona fides business purpose to the contrary, Article
3.07 has the principal effect of penalizing the affected employees for having sought
Union representation. Such a provision is unforesc.cable in law in any fOll1ID,
In my view, the pa-.:ties to the Transfer Agreement, intended to give me an the
powers nccessary in a modern labour relations setting to provide effective remedies in
order to instill confidence in employees and their former bargaining agents that
workplace fairness would prevail notwithstanding a massive workplace restructuring. I
cannot accept that my powers are any different than those of an arbitrator constituted
under the Lab()1.lr Relations Act. Accordingly, this alternative conclusion which declares
Article 3.07 null and void is within my jurisdiction to render.
For an these reasons, the preliminary objection is dismissed.
Dated at Toronto this 41h day of October. 2002.
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