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HomeMy WebLinkAbout1996-0323.Davey.99-04-07EMPLOY& DE LA COURONNE DE L’ONlAtW COMMISSION DE RCGLEMENT DES GRIEFS 180 DUNDAS STREET WEST, SUITEBOO, TORONTO ON M5G 128 l&O, RUE DUNDAS OUESr; 8URGIlJ 600, TORONTO (ON) M5G I28 TELEPHONErrCfLtiPHONE : (416) 326-1388 FACSIMILEiliLkCOPIE : (416) 326-1396 GSB #0323/96 OLB #280/95 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before - THE GRIEVANCE SETTLEMENT BOARD BETWEEN Ontario Liquor Boards Employees’ Union (Theresa Davey) Grievor - and - The Crown in Right of Ontario (Liquor Control Board of Ontario) Employer BEFORE Daniel Harris Vice-Chair FOR THE GRIEVOR Julia Noble Legal Counsel Ontario Liquor Board Employees Union FOR THE EMPLOYER Michael G. Sherrard Counsel, Ogilvy Renault Barristers & Solicitors HEARING April 1, 1999 The Proceedings In this matter the Union, Ontario Liquor Boards Employees’ Union, grieves on behalf of Theresa Davey that the Employer, The Liquor Control Board of Ontario did not notify her that she had become eligible to participate in the pension plan. Her eligibility had come about as a result of 1989 amendments to the Pension Benefits Act, which allowed casual employees to enrol in the plan. The Union says that the Employer owed a duty to the Grievor to advise her of those statutory amendments. As a result of the failure of the Employer to discharge that duty, the Grievor is said to have suffered additional costs due to the delay in buying back past pension credits. This is an interim award, which deals with the Union’s request, made at the end of the second day of the hearing, for an order that the Employer produce the following: 1 Copies of documentation or information which would confirm and verify that the LCBO transmitted to the administrator of the pension plan, in accordance with Section 23 [sic] of the Pension Benefits Act, the names and addresses of each casual employee of the LCBO who was or who became eligible to become a member of the pension plan in 1988, 1989, 1990 and 199 1. Please provide copies of the documentation, if any, that was provided to the administrator by the LCBO, and please advise the Union of the date that this information was provided. 2. In the event that the LCBO cannot confirm that the information mentioned in paragraph one above was forwarded to the administrator of the pension plan, please notify [counsel for the Union]. 2 The section of the Pension Benefits Act relied upon reads as follows: 25. ( 1 ) The administrator of a pension plan shall provide in writing to each person who will be eligible or is required to become a member of the pension plan, (4 an explanation of the provisions of the plan that apply to the person; (b) an explanation of the person’s rights and obligations in respect of the pension plan; and cc> any other information prescribed by the regulations. (2) The administrator shall provide the information mentioned in subsection (l), (4 to each person who becomes a member within the prescribed period of time after the date on which the pension plan is established; (b) to a person who is likely to become eligible to become a member of the pension plan, within the prescribed period of time before the date on which the person is likely to become eligible; cc> to each person who becomes eligible to become a member of the pension plan upon becoming employed by the employer, within the prescribed period of time after the date on which the person becomes so employed. - (3) The employer shall transmit to the administrator the information necessary to enable the administrator to comply with subsection (2) and shall transmit the information in sufficient time to enable the administrator to comply with the time limits set out in that subsection. R.S.O. 1990, c. R8, s. 25. The Submissions of the Parties The Union submitted that the issue between the parties is the extent of the Employer’s obligation to notify casual employees of their right to participate in the pension plan. Their failure to so advise the Grievor was said to be a breach of the 3 Employer’s duty under the collective agreement to act fairly, a breach of its duty of care and a breach of section 25 of the Pension Benejits Act. The latter provision was described as being encompassed by s.48( 12)(j) of the Labour Relations Act, 1995 which reads as follows: 48(12) An arbitrator or the chair of an arbitration board, as the case may be, has power . . . ci> to interpret and apply human fights and other employment- related statutes, despite any conflict between those statutes and the terms of the collective agreement. The Union submitted that although the grievance specifically referred to the anti- discrimination provision of the collective agreement, it ought to be broadly construed to provide for the disposition of the real issue between the parties, being the-Employer’s failure to notify the Grievor of her right to participate in the pension plan. The Union relied on USWA and Dunham Bush (Canada) Ltd. (1964), 15 L.A.C. 270 (H.D. Lang). Finally, the Union submitted that to deny the production of these documents would be to decide the merits of the issue between the parties, which would be inappropriate in these circumstances. The documents were said to be arguably relevant to the issue between the parties. 4 The Employer submitted that there is no provision in the collective agreement that adverts to pension benefits for casual employees. Without that nexus, it can not fall to the Board to interpret s.25 of the Pension Benefits Act. The Employer said no prohibited ground of discrimination was violated under article 2.1(b), the only article referred to in the grievance; therefore, there was no violation of the collective agreement. Accordingly, the Board was said to be without jurisdiction to enforce s.25 of the Pension Benefits Act. The Employer relied on OPSEU (Brummell) and the Crown in Right of Ontario (Ministry of Health) GSB 158419 1 (B. Kirkwood); Ford Motor Co. of Canada Ltd. And CA W, Local 1.520 (1992), 27 L.A.C. 4th 257 (Palmer); Haldimand-Norfolk Police Services Board and Haldimand Norfolk Police Assn. (1993), 36 L.A.C. (4th) 248 (Palmer). Reasons for Decision At the outset of this hearing, the parties joined issue over the difference in their views as to the duty of the Employer to notify its casual employees of the legislative change that permitted such employees to participate in the pension plan after January 1, 1990. The Union has submitted that documentation provided to the pension administrator is arguably relevant to the determination of the Employer’s duty. 5 I agree with the Union that to accept the Employer’s submissions as the basis upon which to deny the requested production would be a de facto determination of the central issue before the Board. At this stage of the proceedings it would be inappropriate to make such a determination. The Union submits that the duties breached are grounded in the collective agreement and are duties of care, or fairness, owed by the Employer to the Grievor. Given that characterisation of the issue, to deny production would foreclose the Union from presenting its case and would amount to a decision on the merits. Such a decision on the merits would be premature. The production requested is arguably’relevant to the issues before the Board and ought to be ordered. The foregoing is clearly without prejudice to the parties’ rights to argue the case at its close. It is in the fullness of the evidence that the matter will be determined, not as the result of a request for production. In any event, this is not a matter where the merits of the Union’s case may be disposed of as a preliminary issue. The evidence upon which such a determination must rest is co-extensive with the evidence on the merits. This is not the same situation as that in Brummell, supra, where the evidence related to discussions taking place prior to the formation of the employment relationship. Rather, the facts here arise in the employment context, resulting in the issues being less amenable to being severed and dealt with as a preliminary matter, which was implicit in the Employer’s resistance to accede to the request for production. The Decision The Employer is ordered to produce the material requested as set out above. DATED at Toronto this 7th day of April 1999. Daniel Harris, Vice Chair