HomeMy WebLinkAbout2009-1091.Evangelista.11-06-13 DecisionCommission de
Crown Employees
Grievance
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Settlement Board
griefs
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Couronne
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Bureau 600
Toronto, Ontario M5G
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Toronto (Ontario) M5G
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GSB#2009-1091, 2010-1854
UNION#2009-0526-0019, 2010-0526-0050
IN THE MATTER OF AN ARBITRATION
Under
THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT
Before
THE GRIEVANCE SETTLEMENT BOARD
BETWEEN
Ontario Public Service Employees Union
(Evangelista et al)
Union
- and -
The Crown in Right of Ontario
(Ministry of Attorney General)
Employer
BEFOREDaniel Harris Vice-Chair
FOR THE UNIONJane Letton
Ryder Wright Blair & Holmes LLP
Barrister & Solicitors
FOR THE EMPLOYERStewart McMahon
Ministry of Government Services
Labour Practice Group
Counsel
HEARING
May 4, 2011.
- 2 -
Decision
[1]These matters came on for hearing on May 4, 2011. There are two group grievances
dealing with the scheduling of court reporters for bail hearings at the Old City Hall Courthouse
on weekends and statutory holidays (WASH court). Currently, anyone arrested on the weekend
in the City of Toronto makes their first appearance at the Old City Hall courthouse. Except for
the court reporters, the court personnel are drawn from all of the courts in the City of Toronto on
a rotating basis. As for the court reporters, only the court reporters from the Old City Hall
courthouse are rotated through the WASH court assignment. These weekend shifts are over and
above the regular Monday to Friday schedule. Not only are the court reporters working more
shifts than other court reporters in the City, but extra transcript work is assigned from the extra
sittings. The Union says that the inequitable assignment of these shifts to the Old City Hall court
reporters is contrary to article 2.1, Management Rights, article 3 No discrimination/Employment
Equity and article 60.1, Health and Safety.
[2]The Union said that the extra shifts cause increased sickness. They also negatively impact
vacations, because the court reporters must arrange their own shift swaps if their WASH court
assignments occur during a scheduled vacation time. Medical and dental appointments may have
to be kept by way of taking a vacation day.Finally, the court reporters suffer increased
transportation costs because they have to attend work on additional days.
[3]As part of its opening statement, the Union filed some documentary evidence, including the
current three-month WASH court schedule. A brief review of that schedule discloses that the 18
Old City Hall court reporters generally worked one extra shift per month. Two of them worked
four WASH court shifts in the three month schedule.
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[4]The Employer took the position that there was no prima facie case to meet. It assumed that
breaches of articles 2.1, 3.1 and 60.1 were alleged.It noted that the hearings were previously
adjourned to permit the Union to obtain medical evidence, but no such evidence was being
proffered by the Union. It also said that there were no allegations of bad faith.
[5]As to the alleged breach of article 3.1, the Employer said there was no allegation of fact
that raised a breach of the Ontario Human Rights Code except for one individual who said they
had not pursued their religious observances because it would possibly conflict with the WASH
court schedule. In that latter regard, the Employer said that there was no indication that the
individual had asked for an accommodation that was denied, nor were there any particulars of
what potential religious observances were impacted.
[6]As to the alleged breach of article 60.1, Health and Safety, the Employer said the caselaw
established that more than tension, stress, irritation or unhappiness was required to establish a
breach; serious illness is required to establish a breach. In the absence of medical evidence,
serious illness could not be established.
[7]The Union said that is was premature to dismiss the grievances without first hearing from
the grievors regarding the very real stress they suffer from these work assignments. It said that
the differential treatment here is unfair with reVSHFWWRLWVLPSDFWRQWKHJULHYRUV¶DELOLW\WR
schedule medical and dental appointments and with respect to the extra transcript work generated
by the WASH court shifts. The grievors ought to be able to give viva voce evidence on these
points, as was the case in many of the authorities relied upon by the Employer.
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[8]In reply, the Employer reiterated its submission that the Union was granted the opportunity
to obtain medical evidence to support its claim, which it had not done.
[9]The following authorities were referred to: OPSEU (Dobroff et al) and the Crown in right
of Ontario (Ministry of the Environment), GSB File Nos. 2003-0905, 2003-0906, 2004-3397,
April 28, 2008;OPSEU (Sutherland) and the Crown in right of Ontario (Ministry of Labour),
GSB file No. 2006-0519, December 12, 2008; OPSEU (Sager, Shelly et al) and the Crown in
right of Ontario (Ministry of Transportation), GSB File No. 2000-0377, May 7, 2004; OPSEU
(H. Keeso) and the Crown in right of Ontario (Ministry of Correctional Services), GSB File No.
0009/88, December 16, 1988.
[10]Having carefully considered the submissions of the parties and the authorities relied upon,
WKH(PSOR\HU¶VDSSOLFDWLRQWRGLVPiss the grievances is denied.
[11]In essence, the Board is being asked to weigh WKHTXDOLW\RIWKH8QLRQ¶VHYLGHQFHZKLFKLV
not appropriate at this juncture. For example, I am asked to reject the assertion of Mr. Rubinoff
that he has foregone his religious observances because the scheduling of WASH court would
make attendance difficult. The Employer also asks the Board to weigh the quality of the medical
evidence that the scheduling of Wash court has caused illness. Rather, at this juncture, both of
those allegations of fact are to be taken as true. If such concerns arise expressly or inferentially
from the collective agreement, then the Board has the jurisdiction to hear the matters.
Manifestly, those two examples are grounded in articles 3.1 and 60.1 which read as follows:
3.1.1There shall be no discrimination practiced by reason of race, ancestry, place of 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).
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60.1 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.
[12]Accordingly, the Board has the jurisdiction to hear and determine these matters. Further, in
my view, to weigh the evidence without hearing the evidence of the grievors would be contrary
to the rule of natural justice that requires that each party be given an opportunity to adequately
state its case. Finally, in only the clearest of cases should the board decline to hear a matter
before concluding it has no jurisdiction.
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Dated at Toronto this 13 day of June 2011.
Daniel Harris, Vice-Chair