HomeMy WebLinkAbout1981-0424.Lenehan.81-11-05- I
CROWN ZNPLCYEES CCLLZCTIVE 3ARGAIyING ACT
3efore
B&r&n: "r . 'Z. R. Lenehan
.
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paid at his rsqular rat2 of ?a? far ti7.2 s?ent attecei2.q 3:
an arbitration 'hearing before this 3card i.7 iihicL3 tie iias L-l-2
qrievor. i3e claims to be entitled by virtue of .irticle
27.7.1 of the Collective Agreement which provides:
"An emloyee wk.0 is a qrievcr or
com?lalnant and -*ho ma!<es
application for a hearing before
the Grievance Settlement Scard or
the Dublic Service Labour Reiations
Tribunal shall be allowed
leave-of-absence ilith no loss. of
pay and with no loss of credits, if
required to be in attendance by :Lne
3oard or Tribunal."
There is no dispute as to the facts. The qrievcr, sursuinq
his competition grievance, attended before the Grievance
Settlement 3oard on Xay i9, June i5, and June 16, of 1?31.
Some travelling time was necessary for this purpose and this
occurred on Nay 17 and Jun? 14. Thers 'was some disc,ussion
at the hearing, as to vhether travellinq time could be -_
properly included within this grievance and the 3oard ruled
that to include the same vas the only fair inter?retation of
Article 27.7.1 as "attendance" should include the tine spent
qetting to the 3oard or Tribunal. 92 qrievor was not
scheduled :s work on 3fiy 3f the above days 2r.d accordinC:~J *-_
found it necessary to attend at the hearinq on his days
Off. Fie believes then that he has betn discrini?atec?
against since If he had attended the hearinq on days that he
'was scheduled to xor!c t::e e!zployer ,k'o!l2 Ce c'blized to 3ay
him his reqular q&ages for those da;s.
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not simply a maintenance provision ensurinq Gnat the
employee is said for regularly scheduled wcrlc -ðer
performed by him or not but rather constitutes a.1 attern?-; at
compensation to the emplcyes fwhenever he is requirsd XI
attend at a Grievance Settlement 3Oar5 hearing. T.h.P qri~'Jor
maintains that if the article was intended cr,ly for
maintenance purposes it would have been wrded differently
and would have expressly indicated the same. The qrievor
?cints to an express provision limiting entitlement in the
Ccllectivs Agreenent, Article 43.1:
"An employee who would otherw;se
have been at work shall be allowed
up tc three (3) days
leave-of-absence with ?ay in the event of the death of ‘his spouse,
mdther, father, mother-in-lax,
father-in-law, son, daughter,
brother, sister, son-in-law,
daughter-in-law, sister-in-law,
brother-in-law, qrandsarent,
grandchild, tiard or guardian."
The grievor brought to the aoard's attention the decision of
?burnier and Ministry of Dealt.',, 36/7i, 3eatk:I, k'herek t?.s:
article ijas reviewed. In that case the grip&r zas on
vacation vhe?. her husband died and the qrievcr attended i:e
funeral. The qrievcr later maintained that she was er.ti:l&
to extra days vaczticn because some CC the days duri?q h?r
vacation were used fcr pur?cses cf*bere~a.Joment iea:.P. The
. _ ; h w .
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acari i:? tklat case disaiis2e t?.e qrisx3nce 2317 y,? 23513 :.:“,z
t3i.p Article ii;nite< berea-,*,p,e?.? 133.;3 :2 5.1352 cirzl.7~~a~c~s
'd n 2 n , 5 'U f Ear 52 12a'T/e, " k.i2 2r,?lcy"" .L&y2;3 .g;+.er;iise ha./%
been at work". The qrievor in our case sougi?t tc us?
Article 48.1 and its intepretaticn in tournier for the
purpose of demonstrating that the la!nquaGe of Article 27.7.1
was not sufficientlv express tc deny the yrievor's claim
here. This is not a persuasive argument as in the ?31?rnier
decision Professsor 3eatty noted:
c. "It ccuid not be said . . . that
Mrs. ?curnier 'jiCUid Ct1her*dis2 ihave
been at work'. To 'the contrary and
by definition she could not be SC described during the ~ericd she ;las
absent and excused from war!< tc
enjoy her annual vacation."
In the case before us, by definition, the griever could not
be I'aliCWed leave-of-absence" on a day :dhen he was not
obliged to be at'wcrk and the reasoning of ?rcfessor 3eatty
is therefc.re equally applicable here.
The griever sought to distinguish the earlier
\' decision of this Ward, XcKie et al and the "inistry of \.
Transportation and Communications, SO/SO, Jalmer. I ." th a t
case the article under rsvi2w was .?lrticle 27.7 .I?:
"An.em?icyee who has a ;rle'iance
and who is required to attend
meetings at St392 One and Tiic of
the Grievance ?rccedure Shall 'be
qiv2n ti.me off with no loss of 32:~
and with no loss of credits to
attend such meetings."
In Xcitie the qriovcr had been obliged to att2r.d a: sac5 2
-\ .meeting on his day of:. :x-'p ccntend2d t.i.Srsfcrs t.'.at :5?- .,Jas
,
concluded :
“Quite clearly, the xeaning sf this
clause is that where a pievance
meeting is sched-uled during ti;;les
that the griever is scheduled to war<, the 3npio’ler is zquired to
?ernnit bin to attend this 7ieetrn2,
say him for the tizie while ‘he is so
engaged, and, finallv, treat the
time wken he is at &is meetica ZS
if he had worked for ?urFoses gf
credits for vacations and the
li’ce , . Again, having set 3ut this
requirement for payment, there is
no obligation for the tnployer t3
go further. * ,
The grievor sought to distinguish the 9c:ii.e decisF,n on the
basis of the difference in language but it is clear that any
such distinction ought not to prcduce a difference in the
result: Plainly Article 27. 7.1 is intended to ansur% that
the employer gives time off to the grievor, %hen it is
necessary so to do’, to attend hearings considering his
grievance and that he be paid for tje sa,?e in ::-~a: instance
so that he is not unduly prejudiced ‘by having to lose say to
ourstie his grievance; as well the article provides that <he
e3nployer can?,oL _ + cl-e t:he ;rievor’s 3.bsence f 3 z s :: c ;q !,-: e a r -1 7.9 f
tc limit credits which would other;lise have beeF gained 3q‘
the- griever had he ‘been at work. In t’he r2sult tiis
argument of t5e crievor Fails.
party wi?o could be affected ‘3y the outcome of :ne
arbitration. Brophy had been scheduled for vacation on Jr1r.e
15 and June’ 16, ‘but the ems13yer accop.modated 3ro?‘ny by
rescheduling his vacatisn ~so that he xould ‘be ?aid’ for k?is
attendance at the ;?earing and would lose none of his
vacation time. The employer argued that the differenc‘e in
treatxent for Srophy was justified on two bases. First, tL?e
employer argued that Srophy was in a different position than
the grievor in that 3rophy as a third ?arty had no in?ut
into the sched.uling process and was not c3nsultsd when the
hearing was set for the days of June 15 and. June 16. ThFS
is not persuasive for two reasons: ?irst if the griever has
a right to be present at a hearing and third parties are
entitled as of right tc ‘be a’_ the sa7.e ?.earFr.q ti.en Scr?i:/
bo’,h would have the same right ta be consulted with re<srZ
to the scheduling, and sec3r.d the Grievance Sattl~zant 3oak
cannot ‘be affixed with the obligation of scY.ecl~xling th=ir
hearings t3 ensure that they ta!ke F?sce on t?.e days 3~ ,k.F-?.
the griever or affected parties are at b-or:< so tkat they.
I
^ . LoLlective .:qreement. p 2 se c 0 <p,d j :; s t i f i c 2 7 i 0 3 a< .,. 2 “C e s ;; I,’
the employer for treating 3ropi-.y differently ‘was ;o t;+
effect that arophy was required to attend the ;heari.?q not
only as a third 3arty but also as a ?ros?ectrve witness for
the em?byer . This advanced jos:ifica:iok-. lot OnI:, is ,-.ot 2
justification but i’ndeed is an aqgravation in that it
emphasizes the _ lac!c of zalrness ;iit:? wnlch the e;m3loyer L
treated these tiio employees. obviousl~~ the ~nolov-’ -. - _ -- 12
administering the Collective Agreement is not entitled t3
benefit one empioyee ever the other on the basis that th?
former may give evidence on behalf of the employer while the
latter will give Cjvidence on his own ‘behalf.
In the result the grievance succeeds on t.ie
5as is of the fairness argument advanced Sy the grievor. :*ie
were advised at’ the hearing that 3rophy was not said travel
time for ‘his attendance at the hearing and since t:he
grievance succeeds only on the basis of the fairness
argu.nent the award is limited to paAyment to the qrievor fcr
attendance at t?.e hea.ring on Fay 13, Juze 15; and u’u?.~ 15.
It was agreed ‘by the parties chat the 3oar5 xi?l rerain
jurisdicticn pending tie resolution of the aino”nt of
1931.
3. liussell, 'Aember
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IN THE SUPREME COURT OF ONTARIO f . "
DIVISIONAL COURT
IN THE MATTER OF The Judicial Review
Procedure Act, R.S.O. 1980, c.224
.
AND IN THE MATTER OF The Crown Employee
Collective Bargaining Act, R.S.O.,1980,
c. 108
AND IN THE MATTER OF an award of the
Grievance Settlement Board dated
Novpber 5, 1981
BETWEEN:
HER MAJESTY THE QUEEN IN RIGHT O?
ONTARIO AS REPRESENTED BY THE
MINISTER OF HEALTH
Applicant
- and -
ONTARIO PUBLIC SERVICE EMPLOYEES.
UNION, G. R. LENEHAN and THE
GRIEVANCE SETTLEMENT BOARD
Respond6
ORDER
HICKS MORZEY HAMILTON STEWART STORIE
Barristers and Solicitors
Suite 1201, Royal Trust Tower
Box 371, Toronto-Dominion Centre
Toronto, Ontario MSK 1X8 I
IN THE SUPREME COURT OF ONTARIO
DIVISIONAL COURT
THE HONOURABLE MR. JUSTICE LINDEN ST:,;: F;;,. ;-.\;,,iJy-5;,
i" THE HONOURABLE MR. JUSTICE.CATZMAN FRIDAY.. THE 3rd DAY
.THE HONOUPABLE MR. JUSTICE SUTHERLAND ) OF-SEPTEMBER, 1982
Judicial Review
1980, c.224
The Crown Employee
7 Act, R.S.O. 1980,
an award of the
Board dated Novemb
s
c.108
,er 5,~ 1981
f BETWEEN:
HER MAJESTY THE QUEEN IN RIGHT OF ONTARIO
AS REPRESENTED BY THE MINISTER OF HEALTH
Applicant
- and -
ONTARIO PUBLIC SERVICE EMPLOYEES UNIdN,
G. R. LENEHANand THE GRIEVANCE SETTLEMENT.
BOARD
Respondents
i \
ORDER
UPON MOTION made on the 3rd day of 'September, 1982 bY
the Applicant for judicial review of the Award of the Grievance
~Settlement Board dated the 5th day of November, 1981 for an .I
Order quashing and setting aside the said decision and upon
hearing read‘the Affidavit of John Callas and the Exhibits therein
r ? ?j ,*’ -2- i-
G, _-,
L.
referred to and upon reading the proceedings herein and hearing
: 7 counsel for the Applicant and Respondent Union;
1. THIS COURT DOTH ORDER that the said Application be
and the same is hereby granted;
2. AND THIS COURT DOTH FURTHER ORDER that the Respondent
Union do pay to the Applicant its costs of this Application
forthwith after taxation theieof.
Registrar
Divisional Court