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HomeMy WebLinkAbout2001-0453.Berry.04-03-04 DecisionCrown Employees Grievance Settlement Board Suite 600 180 Dundas St. West Toronto, Ontario M5G 1Z8 Tel. (416) 326-1388 Fax (416) 326-1396 Commission de règlement des griefs des employés de la Couronne Bureau 600 180, rue Dundas Ouest Toronto (Ontario) M5G 1Z8 Tél. : (416) 326-1388 Téléc. : (416) 326-1396 GSB# 2001-0453, 2001-0974, 2001-0993 UNION# OLB492/00, OLB421/01, OLB467/01 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN Ontario Liquor Boards Employees’ Union (Berry) Grievor - and - The Crown in Right of Ontario (Liquor Control Board of Ontario) Employer BEFORE Janice Johnston Vice-Chair FOR THE UNION Graham Williamson Koskie Minsky LLP Barristers and Solicitors FOR THE EMPLOYER Gordon Fitzgerald Counsel Liquor Control Board of Ontario HEARING March 2, 2004. 2 Decision I have three grievances before me in this case. The first is dated November 22, 2000, the second is dated August 13, 2001, and the third is dated September 17, 2001. The grievances request, among other things, the removal of certain letters from the grievor’s file. Two of the letters are written reprimands and the other letter is a notice of intended discipline. The grievor works at the Durham Warehouse as a casual warehouse worker. The first grievance deals with events that commenced on October 18, 2000, when the grievor initiated a work refusal pursuant to the Occupational Health and Safety Act (the “OHSA”). The parties agree that under the OHSA section 43 (3) (b) a worker may refuse work in certain circumstances. That section provides: 43 (3) A worker may refuse to work or do particular work where he or she has reason to believe: ... (b) the physical condition of the workplace or the part thereof in which he or she works or is to work is likely to endanger himself or herself; Section 43 then goes on to provide a series of steps to be taken once the employee has raised his/her concerns. The employer ultimately determined that it was appropriate to issue a written warning to the grievor and did so. The letter was dated November 7, 2000. This resulted in the filing of the first grievance, which also alleged a violation of section 50 of the OHSA. Section 50(1) of the OHSA provides: 50 (1) No employer or person acting on behalf of an employer shall, (a) dismiss or threaten to dismiss a worker; (b) discipline or suspend or threaten to discipline or suspend a worker; (c) impose any penalty upon a worker; or (d) intimidate or coerce a worker, because the worker has acted in compliance with this Act or the regulations or an order made thereunder, has sought the enforcement of this Act or the regulations or has given evidence in a proceeding in respect of the enforcement of this Act or 3 the regulations or in an inquest under the Coroners Act R.S.O. 1980, c. 321, s. 24(1); 1990, c. 7, s. 26. The grievor alleges that the issuance of the warning in this case was a reprisal contrary to section 50 of the OHSA. The employer disagrees with this assertion. However, in an attempt to resolve this matter, the employer by letter dated February 27, 2004, indicated that it would, on a without prejudice basis, withdraw the letter dated November 7, 2000, from the grievor’s file. As a result, the employer takes the position that the issue before me is now moot. The union suggests that it is not the end of the matter and continues to seek other relief, which includes various declarations, an apology from the employer and damages for pain and suffering in the amount of $10,000. On June 21, 2001, the grievor left the workplace due to injury. She has been on compensation since that time. Other than brief sporadic attempts to return to work, the grievor has not been working. The second and third grievances relate to issues that arose in the summer of 2001. At that time, although she was not working, the grievor became aware of some practices in the workplace that in her view raised health and safety concerns. In an attempt to obtain information, she contacted the Ontario Federation of Labour (the “OFL”). It appears that the OFL then contacted the Ministry of Labour (the “Ministry”). Representatives of the Ministry attended at the workplace on July 24, 2001. The attendance of the Ministry was not at the request of the grievor. It was not as a result of any work refusal on the part of the grievor as she was not at work at this time. Pursuant to the letter dated February 27, 2004, already referred to, the employer has also removed the two letters from the grievor’s file that gave rise to the second and third grievances. In addition to contending that renders the matters before me moot, the employer also argues that as the grievor was not in this instance seeking to enforce or rely on the OHSA as she did not request the intervention of the Ministry, that the OHSA has no application in these circumstances. As the union has failed to establish any basis upon which I could order 4 declaratory or any other relief pursuant to the OHSA, it has failed to make out a prima facie case. The union disagrees with this position and continues to seek the declaratory relief and other orders as set out above. I have carefully considered the issues before me and have determined that in the circumstances the grievances should be dismissed. The events giving rise to the grievances occurred in the fall of 2000 and the summer of 2001. A significant amount of time has passed since the incidents occurred. Given that the employer has removed the letters that gave rise to the grievances, it serves no labour relations purpose to enquire further into these matters at this point in time. It does not make sense to enter into what would be a very long and acrimonious hearing on issues that are to a large extent moot. Both parties acknowledge the important role played by the OHSA in the workplace. They have made a commitment to continue to work together to address issues pertaining to health and safety. The grievances are therefore dismissed. Dated at Toronto this 4th day of March, 2004. Janice Johnston Vice chair