HomeMy WebLinkAbout2009-0918.Betsch.12-05-16 Decision
Crown Employees
rieva
nce Settlement
oard
1Z8
l. (416) 326-1388
x (416) 326-1396
t des griefs
es employés de la
t
Z8
l. : (416) 326-1388
léc. : (416) 326-1396
UNION#2009-0585-0004, 2010-0585-0005, 2010-0585-0009, 2010-0585-0010, 2010-0585-0013
IN THE MATTER OF AN ARBITRATION
THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT
Before
THE GRIEVANCE SETTLEMENT BOARD
ETWEEN
G
B
Suite 600
180 Dundas St. West
Toronto, Ontario M5G
Te
Fa
Commission de
règlemen
d
Couronne
Bureau 600
180, rue Dundas Oues
Toronto (Ontario) M5G 1
Té
Té
GSB#2009-0918, 2010-0355, 2010-0935, 2010-0936, 2010-1605
Under
B
Ontario Public Sployees Union
(Betsch) Unionervice Em
- and -
The Crown in Right of Ontario
(Ministry of Labour) Employer
BEFORE Owen V. Gray Vice-Chair
FOR THE UNION
lmes LLP
and Solicitors
FOR THE EMPLOYER
David Wright
Ryder Wright Blair & Ho
Barristers
Counsel
Services
ractice Group
HEARING
Jennifer Richards
Ministry of Government
Labour P
Counsel
May 11, 2012.
DECISION
[1] These five grievances arise out of interactions between an occupational health
and safety inspector and members of the Ministry’s management. This decision
addresses a “preliminary issue” that the parties have asked me to resolve before
proceeding further with a hearing in which the grievor has completed her testimony-in-
chief.
[2] In accordance with the institutional parties’ standing request that all decisions
in arbitrations between them indicate whether the decision has “precedential value,” I
note as follows. Those who appeared for the parties on the first day of hearing in May
2011 acknowledged that Article 22.16 applies to these proceedings, as nothing in the
subject matter of the grievances brings any of them within the exceptions in identified
in Articles 22.16.1 and 22.16.6, and there was no specific agreement of the parties that
Article 22.16 would not apply to the hearing of these matters. Article 22.16.7 provides
that decisions to which Article 22.16 applies will not have “precedential value” unless
the parties agree otherwise. I was told on that first day of hearing that there had been
no such agreement. No such agreement has been made since then. I am not called upon
to determine what effect Article 22.16.7 has on the parties’ ability to rely on or refer to
this decision in other proceedings.
[3] Article 22.16 provides that a “succinct” decision should be issued within five days
after completing proceedings in matters to which Article 22.16 applies. Whether or not
a decision on a preliminary issue can be said to be one made after “completing
proceedings,” it is reasonable to suppose that the parties have the same expectation of
expedition and brevity with respect to a “non-precedential” decision on a preliminary
issue.
[4] The preliminary issue addressed here is described in the following agreement of
the parties:
1. The Ministry has raised a preliminary objection as to the scope of section 50 of
the Occupational Health and Safety Act, in particular whether the Ministry is
- 2 -
“an employer” and whether the Grievor is “a worker” within the meaning of and
for the purposes of that section.
2. While there are 5 grievances currently before the Board, the parties have agreed
to argue this Motion in the context of Exhibits 4 and 5 in the proceedings before
the Board, the grievances dated April 14, 2010 and July 12, 2010, being GSB
No.’s 2010-0936 and 2010-1605 respectively. The Grievor and Union continue to
rely on allegations and claims set out in the other grievances before the Board for
all other aspects of the proceedings before the Board.
3. For the purposes of the Motion only, the parties agree that the Board should
proceed on the basis that the facts as set out below and as alleged by the Grievor,
will be proven to be true.
4. If the Board grants the Motion, the Union and Grievor will not advance any
additional evidence or argument related to an alleged violation of section 50 of
OHSA and will only pursue the Grievor’s other claims of violations of her rights
as set out in her grievances before the Board (Exhibits 1 to 5 in the proceedings
before the Board.
5. If the Board denies the Motion, the Ministry maintains the right to raise any
additional preliminary objections, including but not limited to an objection as to
the jurisdiction of the Board to entertain the relevant grievances as the Ministry
submits that they are not sufficiently linked to an article in the collective
agreement apart from Article 2. Finally, the Ministry reserves the right to
challenge the evidence presented by the Union and the Grievor respecting the
alleged violation of section 50 of OHSA, and to present and rely on its own
evidence, as necessary.
6. The facts as set out below are only presented for the purpose of this Motion and
in the event that the Board denies the Motion, the Union and Grievor reserve the
right to and will present additional evidence, and/or rely on other evidence
already presented to the Board, in support of the allegation that the Ministry has
violated section 50 of OHSA.
7. For the purposes of the Motion only, the parties are in agreement that the Board
should proceed on the basis that the following facts as alleged by the Grievor will
be proven to be true:
a) The Grievor is a Health and Safety Officer employed by the Ministry, and she
has been so employed since May 2001.
b) In the course of her duties, the Grievor, along with another Officer (“X”),
investigated a fatal accident which occurred on June 23, 2009 involving an
elevator mechanic who fell to his death while servicing an elevator.
c) After investigating the matter and reviewing the requirements of OHSA and
Regulations, and other relevant legislation, regulations and documentation,
the Grievor and X determined that it was appropriate to issue orders under
OHSA requiring the installation of guard rails on the top of elevator cars.
d) The Grievor’s manager, and other more senior managers in the Ministry, did
not want the Grievor and X to issue this Order and the Grievor and X were
directed to issue alternative orders.
e) The Grievor and X, after discussing the matter with the Grievor’s manager
and other more senior managers in the Ministry, and after reviewing and
- 3 -
considering the alternative orders suggested, determined in their professional
discretion that such alternative orders did not suffice to adequately protect
the health and safety of workers of the employer in question and determined
that, in accordance with their duty to uphold OHSA, they would proceed to
issue an order for the installation of guard rails on the top of elevator cars.
f) The Grievor and X issued the order for guard rails on the top of elevator cars
to the displeasure of the Ministry.
g) In February 2010, after the Grievor had returned from a sick leave, the
Grievor was summoned to a meeting with her manager. At that meeting she
was placed in the Attendance Support Program despite advising her manager
that her absences were a result of stress she was facing in the workplace,
including the stress related to the dispute with respect to the elevator fatality
investigation and orders, and despite the fact that other employees with
similar attendance records were not placed in the Program.
h) At the same meeting the Grievor was instructed that she was to no longer
work on the elevator fatality case and was no longer to involve herself in
other inspector’s cases unless her manager had specifically approved this.
Other inspector’s have not been given the same directions.
i) In June 2010 the Grievor’s manager provided her with his written review of
her performance in the previous year. The manager made a series of
negative and unwarranted comments in that review which comments
suggested that the Grievor did not perform her job properly and
professionally.
j) The Grievor asserts that the actions of her manager in February and June
2010 are acts of reprisal against her taken as a result of the Grievor having
issued orders in the elevator fatality case against the wishes of the Ministry
and as such constitute a violation of section 50 of OHSA.
[5] Section 50 of the OHSA provides, in part, as follows:
50. (1) No employer or person acting on behalf of an employer shall,
(a) dismiss or threaten to dismiss a worker;
(b) discipline or suspend or threaten to discipline or suspend a worker;
(c) impose any penalty upon a worker; or
(d) intimidate or coerce a worker,
because the worker has acted in compliance with this Act or the regulations or an
order made there under, has sought the enforcement of this Act or the regulations or
has given evidence in a proceeding in respect of the enforcement of this Act or the
regulations or in an inquest under the Coroners Act.
(2) Where a worker complains that an employer or person acting on behalf of an
employer has contravened subsection (1), the worker may either have the matter
dealt with by final and binding settlement by arbitration under a collective
agreement, if any, or file a complaint with the Board in which case any rules
governing the practice and procedure of the Board apply with all necessary
modifications to the complaint.
The “Board” referred to in subsection 2 is the Ontario Labour Relations Board.
- 4 -
[6] At the hearing of the motion, counsel clarified that I am not called upon to decide
whether the facts set out in paragraph 7 of their agreement set out a prima facie case of
breach of section 50 of OHSA, if that section applies. I am not called upon to determine,
at this point, whether any of those alleged facts or the other facts alleged in these
proceedings would become irrelevant if I were to find that section 50 does not apply.
Nor does it appear necessary to determine whether, if section 50 does apply, it affords
the grievor any protection not afforded by the collective agreement rights on which the
union relies in these proceedings, or any remedy that would not be available for a
breach of those collective agreement rights.
[7] Briefly summarized, the core of employer counsel’s argument in chief was that
while an occupational health and safety inspector (hereafter “inspector”) may be a
“worker” for some purposes of the OHSA, as when she is asserting rights or seeking
enforcement in relation to her own safety at work, she is not a “worker” in relation to
her investigation and enforcement activities concerning the health and safety of others.
Counsel argued that to hold otherwise would lead to various absurdities, including
particularly a restriction on management’s ability to direct and performance manage
the work of inspectors and, as necessary, discipline inspectors for failure to follow
direction or other just cause, since inspectors’ employment duties involve enforcement
of the Act. Acknowledging that the OSHA is a remedial statute that should be given a
broad interpretation consistent with its purposes, employer counsel argued that modern
principles of statutory interpretation permit, and require avoidance of, interpretations
with absurd or obviously unintended results, and that it would be absurd and obviously
unintended if the very agency charged with enforcement of the Act was precluded by
that Act from effectively managing those whom it engaged to carry out those purposes.
[8] The core of union’s counsel’s argument, summarized briefly, was that limiting
the application of section 50 through a narrow interpretation of the word “worker” was
unwarranted by the statutory language considered in its context, and would itself have
absurd and obviously unintended consequences. The inspector is employed by the
Ministry; she is thus a “worker” and the Ministry is her “employer” according to the
statute’s definitions. The statute binds the Crown (subsection 2(1)). If the legislature
- 5 -
had intended the exception contended for by the employer it could have provided for it
expressly, as other provisions of the Act show it was capable of doing. If the protection
of section 50 did not extend to a worker’s exercising statutory rights or seeking
enforcement of the Act in respect of the health and safety of others, he argued, then
those selected as health and safety representatives under section 8 of the Act, or as
members of joint health and safety committees in accordance with section 9 of the Act,
would have no protection under section 50 if their employer engaged in reprisal against
them because of actions they might be permitted or required by law to take in those
roles in relation to the health and safety of others in their workplaces.
[9] Union counsel disputed the proposition that an inspector’s being a “worker” for
purposes of section 50 prevents the employer from directing the inspector’s work,
countermanding her or his actions as required or even disciplining the inspector. He
observed that subsection 1 of section 50 prohibits the conduct described in phrases (a)
through (d) only if the employer engages in that conduct “because” of any of the reasons
enumerated after that word. This requires an assessment of motivation that might be
more difficult in the context of an inspector’s employment than in other circumstances,
but it does not follow that the section should instead be interpreted as the employer
suggests. During his argument union counsel offered or responded to a number of
examples of management-inspector interaction that an inspector might consider to
undermine her or his authority or credibility as an inspector or otherwise regard as a
negative response to her or his enforcement activities, but which counsel assured me
the union would not characterize as reprisal for purposes of section 50. Given the
nature of this decision it is unnecessary for me to set out those examples.
[10] In reply, employer counsel retreated from the proposition that a “worker” is
protected under section 50 only with respect to activities relating to her or his own
personal safety, but maintained that the section cannot have been meant to limit the
Ministry’s directing the work of inspectors, managing their performance and, as
necessary, disciplining or discharging them by reason of their conduct while employed
in enforcing the OHSA.
- 6 -
[11] While I agree with employer counsel that the legislature cannot have intended
that section 50 of the OHSA isolate inspectors from the standards and directions set by
their managers or from the imposition of negative consequences for failing to conform to
such standards and directions, I agree with union counsel that although that
consideration can and should inform an understanding of the word “because” and the
things described thereafter, it does not warrant the interpretation of “worker”
contended for by the employer.
[12] During his argument, union counsel drew my attention to the section of Hadwen,
Strang, Marvy and Eden, Ontario Public Service Employment & Labour Law (2005,
Irwin Law, Toronto) at pages 281-283. The authors refer there to the expectation of
“citizens” that employment standards officers and occupational health and safety
inspectors will engage in independent decision making, as illustrated by Libby Canada
Inc. v. Ontario (Ministry of Labour) (1999), 42 O.R. (3d) 417 (Ont. C.A.) at ¶68. They
then draw the conclusion that an inspector could refuse to obey an order or direction
that “compromises” such independent decision making “just as all employees are
entitled to refuse to obey illegal orders.” I feel constrained to note that I am not called
upon to decide, at least at this stage, (and have not decided) whether the analogy to
disobedience of “illegal” orders is apt, so as to preclude discipline for refusal to obey a
direction that the inspector believes (correctly or otherwise) might render her decision
unenforceable against a third party, nor whether discipline for refusing to obey such an
order is reprisal prohibited by section 50 of the OHSA.
[13] The preliminary objection is dismissed.
Dated at Toronto this 16th
day of May, 2012.
Owen V. Gray, Vice Chair