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HomeMy WebLinkAbout1984-0489.Turner.84-11-06IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before Between: Before: For the Grievor: For the Employer: J.P. Zarudny Law Officer Crown Law Cffice Civil Ministry of the Attorney General Hearing: September 5, 1984 THE GRIEVANCE SETTLEMENT BOARD OPSEU (James K. Turner) - and - Grievor The Crown in Right of Ontario (Ministry of Transportation and Communications) Employer E.E. Palmer, Q.C. Vice Chairman R. Simon A.G. Stapleton Member Member P.A. Sheppard Grievance Officer Ontario Public Service Employees Union PRELIMINARY DECISION The facts in this matter are not in dispute. Thus, it appears that the grievor in this case, Mr. J. K. Turner, was first employed by the Ministry betweenJune 6, 1982 and March 6, 1983on a series of temporary contracts to do motor highway maintenance work. At the end of this time,his employment was not extended according to general Ministry policy, which is not to extend temporary contracts of this kind beyond nine months. He was next employed October 31, 1983. At this time he signed a contract [see Exhibit IV] which indicated that such employment could continue until 30 April 1984. This contract included a number of provisions- Some of the significant ones are that at the top of this document it was indicated that persons so employed would only be kept at work "for up to a maximum of IX months in a XII month period." Again, further down in the document under the heading "Terms of Employment*, ?t was stated as term XII that: "Employment may be terminated by either party upon the giving of one week's notice." It would seem that the above period of employment was extended by a contract signed on 17 April 1984, some two weeks before the aforementioned contract was to terminate [see Exhibit VI. This contract was to come to an end on 30 July 1984, which corresponds with the maximum nine month employment period already mentioned. It is useful to note in this document that it was indicated,the grievor would be subject to normal public service rules regarding, amongst other things, discipline. I ;z I a a > 3, Again, the term regarding "termination of the contract'upon one week's notice was also included in this document. The problem arising in this case arose out of an incident which occurred on 30 April 1984. It was agreed that at that time the grievor struck a fellow employee seated in the lunchroom at the Gormley Yard after a verbal exchange had taken place between them. It was further agreed that the fellow employee, one Galloway, had not hit the grievor and that, in any event, the griever only threw one punch. In any event, after an investigation of the incident, the Employer informed Mr. Turner on 3 May 1984 that his employment would be terminated with one week's notice, i.e., on 10 May 1984. He was told that the reason for his termination was as a result of shortage of work. Parenthetically, it might be noted that this step was taken by the Employer 'to avoid the grievor losing any U.I,C. benefits. It obviously was not the real cause of their action. In any event, when the grievor received this notice of termination he filed a grievance with the Employer [see Exhibit II] contending that he had been released without just cause and requesting appropriate relief. Upon receipt of this, the Employer sent a further letter to Mr. Turner [see Exhibit VI] terminating him on the grounds of the altercation already mentioned. The grievor, nonetheless, was allowed to work until the lOth, at which time he was off work as a result of an accident. In short, the period of one week's notice was maintained. As a result of the aforementioned change of grounds by the Employer, a second s 4. grievance was filed, alleging this act was improper [see Exhibit 1111. At the initial hearing of this matter, which was held in Toronto, Ontario, onseptember 5, 1984, the parties brought before the Board the question of the remedy available. Without dilating on this matter, because of the temporary nature of the griever's employment. the parties wished to determine the extent of monetary relief which was available to the grievor. in the circumstances outlined above. Obviously, the Employer wished this limited to a period of one week's pay in light of their right to terminate on such notice. Further, at the worst, they would take the view that the specific term could not go beyond the end of July. The Union, on behalf.of the grievor, opposed this' position. In support of these claims the arguments were lengthy, especially that of the.Employer. In the view of this Board, however, it is unnecessary to go into these in great detail. \ Briefly, the position of the Employer was that, based on precedent established by the Grievance Settlement Board, the type of limitation on the remedial,authority of any specific Board dealing with a specific case of a dismissal of a part-time employee, such as Mr. Turner, should be limited as set out above. To this end, a careful analysis of the case law was undertaken. However, this Board cannot accept the view that there can be any hard and fast rule with respect to penalties which boards of arbitration can impose. Obviously, in a case such as this common sense and precedent. suggests that normally the maximum relief available to Mr. Turner.would be one week's notice. However, until the actual case is heard,one cannot say that this normal result is appropriate: for example, it is, possible other facts might suggest in the instant case that Mr. Turner might have continued, in employment both until and after the completion of his nine- month term of employment. Again, losses not related to salary might exist. The purpose of damages in those cases is to put a person in the position he would have been had he not been improperly dismissed from employment. The limitations urged by the Employer are not the only and necessary loss which would flow from a finding that Mr. Turner had been improperly dismissed: they are only the likely damages which could be proven. In result, then, we cannot accede to the request of the Employer. To do so, in our view, would be to unduly limit our jurisdiction and so fall into the trap which apparently occurred in the Miller and McPhail .decisions; Boards of arbitration cannot limit in advance the discretion imposed on them to evaluate the factual impl.ications of loss flowing from an act before hearing all those facts. This is clearly what the common law courts, exercising their supervisory jurisdiction over these bodies, call a declining of jurisdiction. DATED at London, Ontario, this 6th day of Md+&irber, 1984. E. E. Palmer, Q.C., Vice Chairma: H. Simon, Member __, r)&&( fl, / A. G. Staple.ton, Member