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HomeMy WebLinkAbout1982-0530.Millar and MacPhail.83-03-23IN THE MATTER OF AN ARBITRATION .Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE-SETTLEMENT BOARD Between: Before: For the Grievors: For the Employer: Hearing: January lOth, 1983 OPSEU (Brian Miller and Clair MacPhail) - And - Grievors The Crown in Right of Ontario (Ministry of Correctional Services) Employer R.L. Verity, Q.C. Vice Chairman L. Robbins Member W.A. Lobraico Member G.A. Richards. Grievance Officer Ontario Public Service Employees Union J.F. Benedict Manager, Staff Relations Ministry of Correctional Services - 2 - DECISION In two separate Grievances, Brian Miller and Clair MacPhail allege "unjust termination" as Correctional Officers 1 at the Cornwall Jail. The issue in each Grievance is identical and for that reason the Parties agreed that both Grievances would proceed together at the Hearing. The Grievors seek reinstatement by way of settlement. The Cornwall Jail is a maximum security institution responsible for the custody of approximately 25 inmates. The staff at the Jail numbers 21 persons and in addition 7 part-time Correctional Officers 1 who are colloquially referred to as "casuals". These latter Correctional Officers are Public Servants who are members of the unclassified service and are governed by Article 3 of the Collective Agreement. Members of the unclassified service are hired pursuant to fixed term contracts. At the Cornwall Jail, casuals employed as Correctional Officers are employed pursuant to a one year contract. The Grievor Brian Miller was first employed at the Cornwall Jail 'on October 24th, 1977 (Exhibit 8). Clair MacPhail was first employed at the same institution on November 20th, 1978 (Exhibit 10). The date of both Grievor's renewal contracts was April lst, 1982. Similarly, the expiry date of those contracts is identical, namely Narch 31st, 1983. - 3 - Each of the Grievor's individual contracts contain the following wording: "Working Conditions & Benefits: as per Collective Agreement Other Terms & Conditions Normal hours of work not to exceed * 24 per week . Services may be terminated on one (1) week's notice by e Both Grievors received August 12th, 1982. In Brian Mil 1' ither party....." letters er's le of termination tter of termination (Exhibit 3) Cornwall Jail Superintendent Richard Dagenais stated that a review of Mr. Miller's work record from January, 1982 to the end of July demonstrated that the Grievor worked an average ,of only one shift per month. In Clair MacPhail's letter of termination (Exhibit 6).the Superintendent alleged that Mr. MacPhail had worked an average of only two shifts per dated month in 1982 At t he Hearing, the Superintendent stated that the unavailabili.ty of both Grievor's for work was the sole reason for their termination. Mr. Dagenais testified that his policy for the employment of casual staff was simply that he expected casuals to be reasonably available for work when required. He admitted that notice to casuals for shift work would frequently be short notice varying in many instances from one hour to fifteen minutes. He also testified that he had no direct involvement in - 4 - the employment of casuals which in turn was the responsibility of the shift supervisors. However, Mr. Dagenais had instructed his shift supervisors to allocate casual employment equitably. The Superintendent stated that he had never warned either Grievor that dismissal could be the end result when casuals were deemed to be unavailable for work. Both Grievors testified that neither had been warned by anyone at the Jail that availability for work was a problem. In particular, Mr. MacPhail testified that there was "no real system" for the employment of casuals. Mr. Miller testified that favoritism by shift supervisors in the employment of casuals was a problem. He also testified that the number of calls that he personally received in 1982 declined sharply from calls received in previous years. On behalf of the Employer, Mr. Benedict argued that the Grievors' services were terminated for non-disciplinary reasons and accordingly the Board lacked jurisdiction in the matter. Further, he argued that termination was affected in accordance with the provisions of Article 3.11 of the Collective Agreement and there had been no violation of the Collective Agreement. Mr. Benedict argued that both Grievors were.well aware of the terms and conditions of employment contained in their individual contracts and in the Collective Agreement. - 5 - I On behalf of the Grievors, Mr. Richards alleged that both Messrs. Miller and MacPhail were dismissed in a disciplinary sense and had been given no warning to enable either to correct any perceived deficiency. He argued forcefully that no policy was in force at the Cornwall Jail for the employm'ent of casuals to guide casual employees on the issue of availability for work. The following Articles of the Parties' Collective Agreement are relevant: "3.11 Employment may be terminated by the Employer at any time with one (1) week's notice or pay in lieu thereof." "3.14 The following Articles shall also apply to seasonal or part-time employees; Articles 1, 9, 11, 12, 15, 16, 17, 21, 22, 23, 25, 27, 32, 36 and 57." In a determination of the issue, we adopt the rationale of Professor Prichard in Boucher and Trumbley and Ministry of Correctional Services, 218/78 at page 9: "In our view, the Board's jurisdiction extends at a minimum to characterizing any particular set of facts surrounding the ending of an unclassified employee's employment relationship as a dismissal for cause within the meaning of section 17(2)(c) (Now 18(2)(c)) or a 'termination' within the meaning of Article 3.3 of the collective agreement. To decide otherwise would be to abdicate our statutory responsibilities under section 17 and 18 of the Crown Employees Collective Bargaining. Act which charges us with the duty - 6 - - to decide a claim by an employee that he or she has been dismissed without just cause. Implicit in that duty is a duty to delineate our jurisdiction by deter- mining in each case brought before us whether or not the facts amount to a dismissal or not. The Ministry may not deprive an employee of his section 17(2)(c) rights by calling a disciplinary dismissal a termination within the meaning of Article 3.3. Similarly, an employee cannot gain greater rights by calling a bona fide termination a disciplinary dismissal in order to come within the terms of section 17(2)(c). Rather, after hearing the evidence of all the circumstances surround- ing the severing of the employment relationship this Board must decide uoon the orouer characterization cases characteri Z employee will be offered by Artic 18 characterized as must be prepared of section 17(Z) of each'case. ior'those ed as a termination, the limited to the protection e 3.3. For those cases, dismissals, the Ministry to meet the requirements . . ..we have determined that our juri S under Section 17 and 18 of the Crown Collective Bargaining Act extends at hear and then characterize the facts the severing of the employment relati a member of the unclassified service a termination within the meaning of A diction Employees a minimum to surrounding onship of as either rticle 3.3 of the collective agreement or a dismissal for cause within the meaning of section 17(2)(c) of the statute. If the latter characterization is applied, our jurisdiction will then extend to determining the merits of the claim that the dismissal was without just cause. If the former applies, our jurisdiction will be at an end assuming the requirements of Article 3.3 were met." In our view, the instant Grievance can best be characterized as a dismissal which we find has been without just cause. . . .’ .’ I The sol Richard Dagenais. e wi tness for the Employer was Superintendent Cl early, his testimony regarding the Grievor' - 7 - availability for work was essentially hearsay evidence, and accordingly has litele cogency in law., See Re Girvin et al and Consumers' Gas Company (1973), 1 O.R. (2d) 421 (Holland J); and R. vs Barber et al., Ex p. Warehousemen and Miscellaneous Drivers' Union, Local 419 [1968] 2 O.R. 245, 68 O.L.R. (2d) 682 Jessup. J.A. On the ev been devised at the on an equitable bas ; dence, Cornwa S. it is clear that no system has yet 11 Jail for the employment of casua 1s In addressing the issue of the appropriate remedy, we refer again to the Boucher Award of Professor Prichard,. cited above at pages 18 and 19: . ..we are confronted with the bold language of Article 3.3 of the collective agreement which, as we have interpreted it, provides for only one week's notice or one week's pay in lieu of notice when a casual employee .is terminated. Whatever our personal views as to the substan- tive adequacy of such a provision as a form of job protection, particularly as it applies to an employee who has in effect served for seven years, it would, in our view, be inappropriate for'us to disregard the parties' intenti.ons as expressed in Article 3.3 in considering the appropriate remedy. On the face of the collective agreement, the parties have turned their minds to the degree of job protection to be afforded casual employees and have reached agreement on the question. The term 'termination' is given no limit in Article 3.3; it is not limited to situations in which there is no longer work to be performed. In normal usage it should be taken as including a dismissal and there is nothing in the collective agreement to oust the normal inter.pretation. Thus, on its face, - 8 - Article 3.3 specifies the scope of protection to be accorded casual employees. When read with section 17(2)(c) and section 18 of the Crown Employees Collective Bargaining Act, it must be taken to mean ~that the parties, after considering the situation of casual employees,, saw fit to agree that they could be terminated upon one week's notice. Thus, in attempting to pay heed to the parties' expressed intentions while at the same time fulfilling our statutory mandate, we find that Article 3.3 should guide us in determining the just and reasonable r.emedy. We therefore find that the just and reasonable remedy in all the circumstances (including the terms of the collective agreement) is one week's notice or one week's pay in lieu thereo In this case, the grievor received the requisite notice and she is therefore not entitled to any further remedy in this respect." Again at page 21 of the Boucher Award Professor Prichard states as follows: II We wish to acknowledge a certain change in emphasis between our interpretation of Article 3.3 in this award and in our interim award. In the interim award the issue properly before us was whether or not the termination of the grievor fell within our jurisdiction under section 17(2) of the Crown Employees Collective Bargaining Act. Our conclusion was that only the Board and not the employer could decide that question and that it could only be decided in light of the evidence. That is the characterization issue. In this award, in light of the evidence, we have characterized the circumstances as a disciplinary dismissal and thus within section 17(2) and thus within our jurisdiction. We have then gone on to inquire as to the consequences.of the absence of just cause and in this context have found Article 3.3 to be of continuing relevance in specifying the approp- riate remedy. To this extent we may be differing from the language we used in part of the interim award which can be taken to suggest that Article 3.3 is relevant only to non-disciplinary dismissals. That was a proposition suggested by counsel for the Ministry at the first hearing which, upon reflection, . . ., - 9 - does not appear to have merit. It was not adopted by the Ministry's subsequent counsel. In the resu the 'characterization" step does not, in our view, dispose of the relevance of Article 3.3." It, In the instant grievance, we have agonized at some length regarding the appropri.ate remedy. We are unable to con- elude that the remedy awarded in the Boucher case was in error in any respect. In our opinion, it would be improper to ignore the wording of Article 3.11 of the Collective identical wording as set out in the individual employment of each Grievor. In the result, we reiterate our earl Agreement and the contracts of ier finding that the Grievors were dismissed without just cause. The employment / records and personndl files of each Grievor. shall be adjusted to delete any reference to dismissal provisions of Article 3.11 preven t the Grievors and also prevent the for lost wages. in August of 1982. The the Board from reinstating Board from making an award Accordingly, 'these grievances are allowed i DATED at Brantford,'Ontario, this 7th day Ajmil , A.D., 1983. l--e==- 7: 2000 2: 1210 2: 1200 n part. of R.L. Verity, Q.C. -- Vice Chairman "see partial dissent" L. Robbins -- Member w W. A. Lobraico--Member . . - 10 - IN THE MATTER OF AN ARBITRATION BETWEEN: THE CROWN IN RIGHT OF ONTARIO (MINISTRY 0F CORRECTIONAL SERVICES) - and - THE ONTARIO PUBLIC SERVICE EMPLOYEES UNION AND IN THE MATTER OF THE GRIEVANCES OF BRIAN MILLER AND CLAIR MacPHAIL PEiRTIAL - DlssENT I have reviewed the Award of the Chairman in the above _ matter. I an able to concur in the finding that the grievors were dismissed without just cause. However, I must dissent from the decision with respect to remedy. On the one hand, the Board has made a finding that the grievors were dealt with contrary to the collective agreement. On then other hand, the decision provides cold comfort to the grievers. as no remedy is provided either by way of reinstatement or compensation. The reasoning which the Chairman has adopted at pages 7-9 of the Award is based on an earlier decision of Professor Prichard in Boucher and Trunbley and Ministry of Correctional Services 218/78. Unfortunately, the reasoning in that decision is flawed, and both in that case and in the present one, the Board has improperly declined jurisdiction to remedy the breach of the collective agreement and to make the qrievors whole. The Chairman has begun by distinguishing between termination under Clause 3.11 of the collective agreement (which can take place - 11 . . with one week's notice) and dismissal for cause. The latter provision applies to unclassified staff (often referred to as casuals) by virtue of Clause 3.14, which states that Article 27 of the collective agreement (among others) applies to such employees. Article 27.6.2 of the agreement reads as follows: "Any employee other than a probationary employee who is dismissed shall be entitled to file a grievance at the second stage of the grievance procedure provided he does so within twenty (20) days of the date of the dismissal." In addition, such employees are also protected by Section 18(2) ,of the Crown Employees Collective Bargaining Act which also allows such an employee to grieve any dismissal without just cause. At page six of the Award, the Chairman in this case determines how to characterize the matter, whether as a termination or a discharge. It is clear from this portion of the Award that this Board views termination and dismissal as two separate processes, with different consequences flowing from each. Once again, the Boucher case is cited as authority for handling the characterization issue. Of particular relevance is the following quote which appears at page six of the Chairman's Award: "The Ministry may not deprive an en@loyee of his Section 1712) (c) (now Section 18(Z)) rights by calling a disciplinary dismissal a termination within the meaning of Article 3.3 (now 3.11). Similarly, an employee cannot gain greater rights by calling a bona fide termination a disciplinary dismissal in order to come within the terms of Section 17(2) (c). Rather, after hearing the evidence of all the circumstances surrounding the severing of the employment relationship this Board must t 12~ - decide upon the proper characterization of each case. For those cases characterized as a termination, the employee will be limited to the protection offered by Article 3.3. For those cases characterized as dismissals, the Ministry must be prepared to meet the requirements of Section 17(2)." I have no difficulty with ~that portion of the Award. Clearly the collective agreement sets out two distinct provisions both concerning the ending of the employment relationship. The Board must give effect to both provisions and to that extent the characterization question is always relevant. The Chairman has then decided that in this case what occurred .'was in fact a dismissal and that it was without just cause. What clearly should follow is that is that the dismissal should be remedied by reinstatement and compensation. Instead, the Chairman, in dealing with remedy, has now turned back to Clause 3.11 (which relates to termination), and has used that clause as a justification for effectively not remedying the dismissal. This is frankly a surprising result, when, as of page six, the Chairman came to the conclusion that this was a dismissal rather than a termination. In fact, the two parts of the Award are inconsistent with each other. If the matter is a dismissal, then any terms of the agreement which relate to other methods of ending the employment relationship are not relevant. The quote from the Boucher Award which appears at page 7, clearly contradicts all the earlier findings with respect to the characterization issue. Note in particular the following: ,......./4 - 13 - "The term 'termination' is given no limit in Article 3.3; it is not limited to situations in which there is no longer work to be performed. In normal usage it should be taken as including a dismissal and there is nothing in the collective agreement to oust the normal interpretation. Thus, on its face, Article 3.3 specifies the scope of protection to be accorded casual employees." It may be that in some contexts the word "termination" can be seen as a general term which encompasses all forms of ending the employment relationship, including dismissal. But in this collective agreement, where the parties have clearly spelled out two separate routes, a termination cannot be seen to mean "dismissal" as well. To .' so hold would be to wipe out the effect of Clause 27.6.2 of the collective agreement and Section 18(2) of the Act. The above quotes also lay bare the contradictory reasoning in the predecessor Boucher Award. In simple terms, the Board, having gone through a lengthy exercise to decide which of two categories the events fell into decided that there was in fact only one category of termination in any case. It is clear that the Board (both in the predecessor case and the one at hand) cannot have it both ways. If there are in fact two procedures under the collective agreement, then the appropriate remedy must flow from each. Professor Prichard was aware of.the contradictions in his own award when he stated the following: "We wish to acknowledge a certain change in emphasis between our interpretation of Article 3.3 in this award and in our interim award." (quoted at page 8 of the Award) In my view, what occurred is more than a change of emphasis . . . . . . . . /5 - 14 - : but rather is a decision on the question of remedy which is inconsistent with the finding on the merits. This problem of characterization is not unique to the situation for casual staff. There are also a significant number of awards dealing with probationary employees in the Ontario Public Service. In that situation, Boards of Arbitration have distinguished between release and dismissal. In any grievance alleging improper dismissal of a probationary employee, the Board must first establish whether what occurred was a release or a dismissal, and then, if the latter, was it a valid dismissal. .' Note the following statement of jurisdiction which appears in the decision of Mr. Verity in LeBlanc and Ministry of Consumer and Commercial Relations, 630/81 at pages 12-13: "The jurisdiction of the Grievance Settlement Board in 'release' cases was set out by the Union concisely as follows: 1) The Board has jurisdiction to determine if there was a bona fide release made in good faith for failure to meet the requirements of the job 2) An Employer can't camouflage a discipline or dismissal under the guise of a release 3) The Board must review a contested release to ensure that it is what it purports to be 4) If the Board determines's valid release has taken place it cannot assess the merits of a release 5) The onus is on the Employer to demonstrate that what in form purports to be a release, is in substance a release." In the above case, the Board found that what occurred was in fact a dismissal and that it was without just cause. Note the following . . . . . . ./6 statement on the question of remedy: "In the result, the grievor shall be reinstated forthwith to the position of Examiner, Financial Officer II with the Pension Commission of Ontario. In addition, she will receive monetary compensation minus any salary benefits received in the interim, retroactive to October 1, 1981 when she will be deemed to have achieved seniority Status.” It is clear then that in the case of probationers, once a matter has been found to be a dismissal, Boards have accepted the fact that the appropriate remedy must follow. One does not look to the "release" situation to determine the remedy which would be appropriate for a dismissal. : The same must be true in cases involving unclassified or casual staff. The Courts have given directions to Boards of Arbitration on their remedial authority. The Ontario Court of Appeal (Brooke, J.A.) stated in re Blouin Drywall Contractors Limited and United Brotherhood of Carpenters and Joiners of America, Local 2486 (1975, 57 D.L.R. (3rd) 200 at p. 210): "There is no specific Limitation on the jurisdiction of the Board with respect to monetary awards. It is within the general jurisdiction of the Board of Arbitration to make a monetary award for breach of the collective agreement which award is necessary to place the injured grievor in the position he would have been in had the contract been carried out..." Also relevant is the decision of the Divisional Court (Reid, Osborne and Trainor, JJ.) in re Board of Education for Scarborough v. Picher et, 37 O.R. (7) p. 348. In that case, the Board awarded reinstate- ment of a probationary employee notwithstanding that the teachers' . . . . ../l .r, * - 16 - contract provided that the agreement could be terminated on the 31st day of August in any year. The Courts upheld the decision and made the following comments: "In argument before this Court the penalty was challenged on a number of grounds. In my opinion, it was open to the Board of Arbitration to award that penalty. It is an appropriate response to the action taken by the Board of Education in that it redresses the error. There is nothing in the collective agreement that in my opinion reduces the force of the many decisions upholding a Board of Arbitration's authority to tailor the remedy to the occasion." (at pp. 356-357) In the case at hand, the fact that the grievors were improperly dismissed deprived them of the opportunity to continue working through their contract. It is true that the Employer may have terminated them under Article 3.11 at some time in any case. However, we do not know that for a fact. What the Employer might have done under Article 3.11 is mere speculation. It is equally conceivable that the Employer would not have terminated the two grievors, and that they would have been able to continue working throughout the entire period until the present. In fact, they may also have had their contracts renewed on April 1, 1983. In order to make the grievors whole it is therefore essential that they receive the usual remedies of reinstatement and compensation. Otherwise, the whole grievance process becomes a meaningless sham where the grievors get no more than a paper victory and the wrong done to them is left as is. Finally, I accept the proposition that generally a Board of Arbitration should follow the decisions of.other Boards where they deal with the very same parties and the same language of the collective . . . . . ../E .i: ‘r - 17 - li~i i.. agreement. However, such does not apply where the Board is convinced that the former award is clearly wrong. In the case at hand, the Boucher Award is in fact inconsistent with itself. In fact, it can be said that Professor Prichard failed to follow his own award. Therefore,this is a case where the Board must in fact come to a different conclusion on the question of remedy. T. -. . . In conclusion, this Award has 'clearly differentiated between two separate actions of termination and dismissal, and found that what occurred was a dismissal without just cause. In the face of that ,' finding, the Chairman has improperly treated the case as if it came under the heading of termination when deciding the question of remedy. In the result, the Board has improperly declined jurisdiction to award a remedy which would correct the breach of the collective agreement and make the grievors whole. Respectfully submitted &.~-; /+&& Larry Robbins ~ Member Dated this 23'-'daay of March, 1983 at Toronto, Ontario . . . . 2s ze?resex.ed by the i?:itis;ry cf Ccrrec~ional Services i+slicazr -- - 2nd - Res~ondezr NOTICE OF APPLIC4TION FOR JUDICL4L RECEIVED %? -. -2- 1P YOU h'ISB TO OPPOSE TEIS APPL~~~TlDh', you OI an Ontario lawyer actin: f'or you must fcr:hGizh prepare a nctice 0: zppeerance In Form 38f prescribed by the Ru?es of Civil Pzocedcre, serve it on the a>plicezr's lawyer or, where the applicant does not have a lawyer, serve it on the a??lican:, and file it, wizh proof of service, in the office of t he Divisional COW:, and you or you: lawyez ‘YiiL'S' w eppzar 2: zhe hearinS. IF YOU WISH TO PRESlXT AFFIDAVIT OR OTHER DOCUWXTARY &UDENCE TO THE COURT OR TO E)CkV.INE k'ITNE.SSES ON THFAPPLIChTIOC, you or, yocr lawyer mzs;, in adtrior; to serving yocr nc=ice of 2p?errance, serve a copy of the elYidence on zhe applicant's lawyef or,.w-here the a@.icar.t does no: have a lawyes, serve it on :he a??lican:, and file it, %ith :,roof of setvice, in the office of zhe Divisional Coxt within zhirty days efter service on you of the applicant's applicarion record, or not later than 2 2.m. on The 62y before zhe hearing, w:hichever is earlier. IF YOU FAIL TO A.PPEwl AT TPr BE&RING, JUDGmT ?SAY~BE GIVEN IN YOUR ABSENCE AND KITBOUT FURTHER NOTICE TO YOU. Date:. issued ;0: Gowling and Henderson Barristers and Solicitors Suite 2400 2 First Canadian Place Toronto, Ontario K5X lA4 Attention: Mr. c. Daliare (416) 862-8484 hND TO: The Grievance Settlement 302rd Suite 2100 180 Dundas Street West Toronto, Oncaric, MjG 1Z8 -3- 1. The appiicant(&.) make(s) appliCatiOn for: m-m- -f c.“ma, An order 'setting aside the decision of the Grievance Settlemenk Board, dated March 2, 1987 and referring the matter back to the Board. 2. The grounds fdr the application are: !zz%o- ==ke- lil’ That the Grievance Settlement Board erred in law and exceeded its jurisdiction by purporting to reinstate bzmnsin~rurn~ M a., the Gri'evors to positions in the unclassified service; and / (ii)' such further and other grounds as counsel may advise. 1 3. The following documentary evidence will be used a: the hearing 01 the application: I 1. the Record of the Proceedings before the Grievance Settlement Board; and 2. such further and other material as counsel may advise. / Attornev General for Ontario Ministr? of the Attorney General Crown Law Office - Civil 18 King Street East 17th floor Torcnro, Ontario F5C ~lC5 .’ .i HER MAJESTY THE QUEEN Iti RIGliT OF ONTARIQ,, THE'ONTARIO PUBLIC SERVICE EMPLOYEES UtllOll < as represented by the Ninistry of Correctional AWL ICAl4l(S) Services &&i wr "I WU.".l,I,") SUPREME COUnT OF ONTAfllO NOTICE OF APPLICATION Attorney General for Ontario Ministry of the Attorney General Crown Law Office - Civil 18 King St. East, 17th floor Toronto, Ontario M5C lC5 Per : Leslie M. McIntosh Counsel (416) 965-6878 '