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HomeMy WebLinkAbout1997-2032.Farache et al.98-06-23EMPLOY& DE LA UWRONNE DE L’ONTAFW COMMISSION DE RkGLEMENT DES GRIEFS 180 DUNDAS STREET WEST SUITE800, TORONTO ON M5G fZ8 TELEPHONE&LiPHONE : (416) 326-1388 180, RUE DUNDAS OUEST; BURE4U SW, TORONTO (OM h45G II8 FACSIMILElT~LkCOPIE : (476) 326-7396 GSB#2032/97, 2045/97, 2046/97, 2 179197 OLB#384/97, 01 l/98, 012/98,495/97 IN THE MATTER OF AN ARBITRATION Under - THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN OLBEU (Farache/Dorfkm/Ford/Keenan) - and - The Crown in Right of Ontario (Liquor Control Board of Ontario) BEFORE P. Knopf Vice-Chair FOR TEIE UN-ION J. Noble Legal Counsel Ontario Liquor Board Employees Union FOR TECE EMPLOYER A. Renton Counsel Liquor Control Board of Ontario HEARING April 28, 1998 Grievors Employer PRELIMINARY DECISION The parties have consolidated four grievances. The grievances are filed as a result of the implementation of a mandatory retirement policy in 1997 affecting all employees of the LCBO, including bargaining and non-bargaining unit members. Up to that point, mandatory retirement had been imposed upon full-time members of this bargaining unit. As of October 1997, the mandatory retirement was applied to casual employees as well. The four grievors were casual employees over 65 years of age. They protest the application of this policy to their circumstances. The Union intends to put forth eight arguments in an attempt to persuade this tribunal that the Employer cannot require casual employees to retire at a specific age. In a nutshell, the Union’s arguments can be summarized as follows: The I Jnion’s Allegations (0 The grievors have been dismissed without just cause and the Employer must justify their dismissal as it would a discharge. (ii) The Employer’s policy discriminates against the grievors on the basis of age and amounts to a violation of Article 2.1 of the collective agreement. (iii) The Employer is not entitled to cause these employees to lose their seniority and deem them to be terminated because the circumstances do not fall under Article 3 1.5. -2- (iv) The Employer’s policy is discriminatory because it does not apply equally to all employees because other casual employees over age 65 have been allowed to continue to work. (4 The policy is arbitrary and discriminatory because it is not based on a bonajde occupational qualification. (vi) The Employer should be estopped from changing its policy because at least three of the four grievors relied on the previous policy of not requiring mandatory retirement for casuals. Therefore, they passed up opportunities to be full-time because of the mandatory retirement. (vii) The Employer should be estopped from changing its policy in the middle of the collective agreement because it failed to give notice to the bargaining agent before implementing a change in policy. (viii) The pol icy is arbitrary, discriminatory and in bad faith because it is designed to “clear out as many casuals as possible and replace them with casuals hired at later times who are paid at a much lower rate.” The Employer adamantly disputes all of these allegations, but reserves its right to reply to the allegations if the hearing proceeds on its merits. The Union’s arguments have raised several preliminary issues. The parties have requested rulings on these preliminary matters prior to embarking upon a hearing -3- into the substantive issues in dispute. By agreement, the parties made oral submissions and then filed written submissions. This preliminary award is based on a consideration of the written and oral submissions filed. The three preliminary issues shall be dealt with in turn. 1. Arbitrabilitv The Employer is arguing that the grievances are inarbitrable. The Employer emphasizes that Article 2.1(b) of the collective agreement prohibits discrimination and also references the Ontario Human Rights Code section 5(2) and Section 10. It was submitted that the Code’s definition of age as being “18 years or more and less than 65” is applicable to this situation and means that nothing in the collective agreement prohibits a mandatory retirement policy at age 65. Therefore, the Employer argues that there is nothing in the collective agreement which prohibits a mandatory retirement at age 65 or upon which the Union can rely to base its case. Further, this collective agreement has no management rights clause, therefore the Employer argues that its right to manage is not fettered by anything in the collective agreement. The Employer also argues that nothing in the collective agreement restricts its right to implement policies upon full-time or part-time casuals. Therefore, the Employer submits that nothing in the collective agreement gives this tribunal jurisdiction to deal with the grievances as framed. The Employer also argues that this case should not be dealt with as a “dismissal case” and that the Board should follow the Bell Canada decision and decline jurisdiction. See Bell Canada and Office and Professional Employees’ International Union, Local I3 I (1973), 37 D.L.R. (3d) 561 (S.C.C.). The Employer also relies on Carleton University and United Steelworkers of America (1993) 37 L.A.C. (4th) 269 (Young), Miracle Food Mart Canada and U.F.C. W., Locals 175 and 633 (1995) 48 L.A.C. (4th) 377 (Petryshen) -4- and Corporation of the City of Etobicoke and C. U.P. E., Local 18.5 (1996) 54 L.A.C (4th) 229 (Springate). In response, counsel for the Union argues that the matter does raise arbitral issues within the jurisdiction of this tribunal. The Union argues that Article 2.1 (b) of the collective agreement gives protection against age discrimination that has brought it under the protection provided under the Human Rights Co-de and has “no upper limit age restriction” with respect to protection against age discrimination. The Union argues that the Employer has violated the collective agreement in its actions and that this gives jurisdiction for this arbitration. Further, the Union argues that the Employer has.acted in a manner that is arbitrary, discriminatory and in bad faith, contrary to “accepted case law and the implied management rights clause” of this collective agreement. Further, in support of its argument that this should be treated as an unjust dismissal case, the Union argues that the instant grievors are distinguishable from the situation before the Supreme Court of Canada in the case of Bell Canada and the Off rce and Professional Employees’ InternationaI Union, Local 131, supra. In a general sense, the Union argues that the Employer’s submissions should not be considered as sustainable preliminary arguments against arbitrability, but rather an indication of how the Employer seeks to defend its actions in law. Finally, the Union argues that the grievances assert that the Employer is estopped from changing its policy and practice regarding casual employees and as such should be treated as a matter that falls within the jurisdiction of this tribunal. In reply to the Union’s submissions, the Employer took grave exception to several aspects of the submissions which could be interpreted as expanding the scope of the grievance. The Employer reserved the right to make full submissions on the scope of the grievance if the matter proceeds on its merits. Counsel for the Employer also stressed that there should be no “implied management rights” read into this collective agreement -5- nor should there be considered a prohibition against acting arbitrarily, discriminatorily or in bad faith under this collective agreement. Finally, the Employer suggested that there is no jurisprudence that would allow a union to raise an estoppel argument in the face of the other party taking the position that the grievance was inarbitrable. For all these reasons, counsel for the Employer asked that the grievance be ruled as outside the jurisdiction of this tribunal. Decision With Respect to Arbitrability After having considered the submissions of the parties, it must be concluded that the grievance raises arbitral issues concerning the application, interpretation, administration and compliance with the collective agreement. Because the questions raised by the grievance may have to be canvassed in great detail when the merits of the case are considered, I will not go into an extensive analysis of the case law concerning age discrimination under collective agreements like or similar to this one. I will simply deal with the jurisdictional matter. In the Bell Canada case, supra, the Supreme Court of Canada was dealing with the question of whether an employer, having retired one of its employees at a specific age, would be required to go to arbitration of a grievance that described the mandatory retirement as a “dismissal”. The Court declared that the arbitrator had erred in law in finding that the employee had been dismissed and further that the decision was made without jurisdiction under the collective agreement. Insofar as this assists the case at hand regarding the jurisdiction issue, the Bell Canada case, supra, is of no assistance to the Employer. In the Bell Canada case, the question of retirement was held to be outside the scope of the “interpretation” or “violation” of that collective agreement. However, in the case at hand, this tribunal has jurisdiction over the broader issues of “interpretation, application, administration or alleged contravention” of the collective agreement. The grievances raise allegations concerning the administration . -6- of the collective agreement including estoppel, arbitrary application and discriminatory application. Further; it is alleged that the mandatory retirement amounts to a violation of the “non discrimination” provision of the collective agreement. Everything the Employer has raised by way of a preliminary objection to jurisdiction is more properly characterized as raising very significant defences which the Union will have to answer. But they do not oust the jurisdiction of this Board of Arbitration. Further, the Employer’s reference to the Ontario Human Rights Code and the restrictive definition of age also amounts to a significant factor that the Union will have to address if it hopes to succeed in this case. But the Employer’s argument is, again, a defence, not a bar to jurisdiction. The allegation of discrimination amounts to an allegation of violation of section 2.1 of the collective agreement, That allegation gives the Board jurisdiction and a responsibility to hear the merits of this case. This, in turn, gives both parties the opportunity to present their arguments and their defences. Accordingly, the tribunal accepts that it has jurisdiction over the grievances and is prepared to hear and determine the matters on their merits. 2. Order of Proceedings The Union argues that the Employer should proceed first with the presentation of the evidence because the termination of the grievors should be viewed as “akin” to a dismissal where the employer bears the onus of proof. Because the Employer has this onus as a result of being in possession of the facts which prompted the termination, the Union argues that the Employer should lead evidence of the actions it took prior to the terminations. In support of this suggestion, the Union relies on the case of Cott Beverages Inc. and Teamsters Union, Local 938 (1992), 28 L.A.C. (4th) 257 -7- (Haefling). The Union argues that the case is distinguishable from the facts which led to the conclusion in the Bell Canada case, supra. The Employer argues that the Union should proceed first with the presentation of the case. The Employer further argues that this case is fundamentally a complaint about mandatory retirement. The Employer characterizes the termination of the grievors’ employment as “non-disciplinary” and acknowledges that the termination cannot be sustained on the basis of “just cause”. The Employer argues that the real issue in dispute is whether it has the right to impose mandatory retirement on these individuals. Therefore, it is argued that the onus of proof and evidentiary burden should rest on the Union which is alleging the violation of the collective agreement. The Employer also asserts that the Union would bear the onus of proof on the estoppel argument. Therefore, the Employer suggests that the hearing be bifurcated and proceed on the estoppel issue before embarking on a consideration of the merits. In support of these propositions the Employer relies on the Bell Canada case, supra, as well as Canada Packers Inc. and U.F.C. W., Local ll#P (1991), 18 L.A.C. (4th) 442 (Solomatenko), Mather and LCBO, GSB File No. 2260/95, unreported decision of B. Kirkwood dated July 29, 1996 and Carter and LCBO, GSB File No. 1735/96, unreported decision of Nimal Dissanayake dated March 13, 1998. De i ion cs The general principle of arbitral proceedings is that the party asserting a violation of the collective agreement bears the onus of proving its case and calling evidence first. This enables that party to establish the context for the case and allows the other party to defend its actions after having the benefit of hearing the case it has to meet. The most common exception to this rule is a disciplinary discharge where the employer -8- bears the onus of proceeding first and explaining why it has imposed the discipline. This is because the employer is in possession of the facts which have prompted the discipline and which explain its action. This also avoids the dilemma of an individual having to prove why s/he should not have been disciplined before the case against him/her has been presented. See Canada Packers Inc. and U. F. C. W., supra. The case at hand is not a discipline case. The Union is alleging a violation regarding the interpretation and application of this collective agreement. The Union is aware that the basis of the terminations is solely the application of the mandatory retirement package. The Union is alleging that the package has been applied in a discriminatory way, in an unequal way and that its very existence violates the collective agreement. In the alternative, the Union is alleging that it can sustain an estoppel argument to prevent the Employer from applying the policy to these grievances. The Union bears the onus of proof on all those allegations. Therefore, both conceptually and practically, the only logical way to proceed is to have the Union proceed first. Accordingly, I declare that the Union shall proceed first with the presentation of evidence and argument in this case. It would not be prudent to bifurcate the estoppel issue away from the rest of the case. If the hearing were to deal first with the sole issue of estoppel, the parties could conceivably be left with a ruling only on the question of the application of the mandatory retirement policy during the life of this collective agreement or upon four individuals. The main question to determine is the efficacy of the policy itself. A festering and unanswered question that has been referred to arbitration will not serve the parties’ interests. No labour relations or procedural interests would be served by such a bifurcation. It could also lead to a prolonging of the case rather than a narrowing of the -9- issues. Therefore, these proceedings should resume with the Union on notice that it bears the onus of proceeding first on the presentation of every issue raised by these grievances. 3. Disclosure The Union seeks an order regarding pre-hearing disclosure of the following: (9 Details of any bargaining unit or non-bargaining unit employees who have reached 65 years of age and who continue to work since the policy of mandatory retirement has come into force. The details the Union seeks are the names, dates of birth, positions, titles of such people and whether they were bargaining unit members or not. Further, the Union is seeking their first date of employment. (ii) The names of employees of the LCBO who were subjected to the new mandatory retirement policy across the province. The Union submits that this information is arguably relevant. Union counsel indicated that she could provide the names of some employees whom the Union believes continue to work although they are over 65 and whose circumstances suggest a discriminatory application of the policy. The Union also says the names and details it is seeking would allow it to ensure that the rights of all its members have been protected. The Employer resists this request for disclosure, arguing that the Union is on a “fishing expedition” and is seeking irrelevant, personal and confidential information. - lo- Further, the Employer asserts that the policy has been applied consistently to all employees and the Employer assures the Union of this fact. Decision With Resuect to Disclosure If the Union were unable to name any people who it believes are continuing to work because of an inconsistent application of this policy, this request would appear to be a classic example of a fishing expedition. But the Union is able to put forward specific names. It is in the parties’ best interest to clarify and resolve suspicions with an accurate information exchange. This could avoid more difficult labour relations problems in the future and protracted litigation. Further, the names and the information the Union is seeking are directly relevant to the issues raised in this grievance with regard to the discriminatory application of the policy. Therefore, it is appropriate for pre-hearing disclosure to be ordered. Therefore, I order as follows: (1) The Union is to supply the Employer with the names of all people the Union believes are over 65 years of age and who are continuing to work despite the implementation of the mandatory retirement policy. (2) Upon receipt of the names from the Union, the Employer is to supply the Union with the names, dates of birth, dates of- commencement of employment, positions and titles and indications of whether the person is a bargaining unit member, of all people over 65 years of age who continue to work after the implementation of the mandatory retirement policy. “ I .’ - ll- The Employer should also indicate whether an extension to age 66 allowed under the policy was applied for and granted to each of these individuals. In those cases, the Union should be given the last date worked by these people. (3) I decline the Union’s request to order that the Employer supply the Union with a list of all employees who were subject to mandatory retirement. The purpose of disclosure is not to facilitate the Union’s desire to discover further potential grievances. The Union has other means available to it to protect its membership. . Accordingly, that request is denied. It is my hope that these preliminary rulings will assist the parties in their preparation for the presentation of this case. At the request of the parties, this arbitrator remains seized with this matter. If any further preliminary matters arise or my assistance could help in the organization of the presentation of the case, I invite the parties to seek my assistance at their convenience. The matter is to be scheduled for hearing in consultation with the parties. DATED at Toronto, Ontario, this 23rd day of June, 1998 Paula Knopf - VicdChairpers