HomeMy WebLinkAbout2002-0206.Martinello.02-09-09 DecisionONTARIO EMPLOYÉS DE LA COURONNE
CROWN EMPLOYEES DE L’ONTARIO
GRIEVANCE COMMISSION DE
SETTLEMENT RÈGLEMENT
BOARD DES GRIEFS
180 DUNDAS STREET WEST, SUITE 600, TORONTO ON M5G 1Z8 TELEPHONE/TÉLÉPHONE: (416) 326-1388
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GSB#0206/02
UNION#OLB495/01
IN THE MATTER OF AN ARBITRATION
Under
THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT
Before
THE GRIEVANCE SETTLEMENT BOARD
BETWEEN
Ontario Liquor Boards Employees’ Union
(Martinello)
Grievor
-and-
The Crown in Right of Ontario
Liquor Control Board of Ontario
Employer
BEFORE Bram Herlich Vice-Chair
FOR THE UNION Craig Flood
Counsel
Koskie Minsky
Barristers and Solicitors
FOR THE EMPLOYER Alison Renton
Counsel
Liquor Control Board of Ontario
HEARING August 14, 2002.
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DECISION
The grievor challenges her demotion from her position as a full-time customer
service representative (“CSR”) to that of a casual CSR. The basis for that challenge is
that the demotion is said, among other things, to constitute discriminatory treatment
prohibited under the terms of the collective agreement and the Human Rights Code.
The merits of the grievance are not yet before me. The parties did, however,
provide me with opening statements and the broad parameters of the case can be
described as follows. My description (both with respect to the outline of the case and in
relation to the preliminary issue dealt with in this award) is based on the facts as outlined
by the parties which were largely uncontested and which I accept as true for the purposes
of this decision.
The grievor was successful, as a result of a job competition, in securing the
position of full-time CSR. She had previously and for some years been employed as a
casual CSR working in locations (such as Beamsville and Grimsby) close to her home in
Grassie. The full-time position, which she was offered and accepted, was an assignment
to an employer store located in Fort Erie (in the range of an hour or more from her
home).
In 1993 the grievor had sustained what the union described as a minor lower back
injury during the course of her employment. She suffered a more serious lower back
injury in the summer of 1999. During her tenure as a casual, the employer had taken steps
to accommodate her resulting disability. However, within a matter of days of
commencing the new full-time assignment, it became apparent to the grievor that she was
physically incapable of tolerating the lengthy return drive between her home and the Fort
Erie store. She advised the employer that she would not be able to return to her duties at
the Fort Erie store. In view of that incapacity, the employer opted to return the grievor to
her former casual CSR position at the Grimsby store.
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It is that response which gave rise to the grievance.
At the first day of hearing, the parties engaged in settlement discussions which
have, so far, proved unsuccessful. They did, however, raise and fully argue a preliminary
matter.
The employer asserts that certain employees, who may potentially be affected by
the outcome of the case, ought to receive notice of and be permitted to participate in these
proceedings. The union argues that none of the individuals identified by the employer has
the requisite interest to claim third party status with the corresponding rights to notice of
and full participation in the hearing process.
There are, broadly speaking, two classes of employees the employer argues ought
to receive notice of these proceedings. The first is those employees who participated in
the job competition in which the grievor and two others were, ultimately, offered and
accepted positions. The posting announced the availability of 3 full-time CSR positions
within the area known as Metro Area ‘H’ which, I am told, corresponds to the Niagara
Region and includes locations such as Grimsby, St. Catharines, Niagara on the Lake,
Welland and Fort Erie. There was, however, no indication on the posting of the specific
locations associated with the advertised jobs. At the conclusion of the job posting
process, the employer offered positions in the three locations it had identified – St.
Catharines, Niagara Falls and Fort Erie – to qualified applicants in the order of seniority.
The senior applicant was offered the choice of Niagara Falls or Fort Erie. However, as
she lives in St. Catharines, she requested to be assigned to a store in that location and her
request was granted. The next senior applicant was off work at the time due to a medical
condition with no foreseeable return to work date. She was advised that she would not be
considered for any of the remaining positions. The next senior applicant was offered a
choice of the remaining locations; she selected Niagara Falls. The next senior applicant
was offered the one remaining position in Fort Erie; she declined, indicating she needed
to work closer to home due to family concerns. It was then that the grievor, who was the
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fifth most senior applicant among those qualified for the position, was offered and
accepted the Fort Erie assignment.
The employer asserts, at least to the extent the union may be seeking to displace
any of the successful candidates from their positions, that those individuals ought to
receive notice of these proceedings. Further, it argues that the employee who declined the
Fort Erie position because of the difficulties associated with travel should also be
permitted to participate in these proceedings.
The second class of employees asserted to be entitled to notice consists of the
single individual who, subsequent to the grievor's demotion, was assigned to the Fort Erie
position formerly and very briefly occupied by the grievor.
Generally speaking, the employer’s position that the identified individuals are
entitled to notice is premised on the assertion that these individuals may potentially be
adversely affected – indeed, may be displaced from their current positions – in the event
the grievance is successful.
The union, however, has not been entirely precise in articulating the remedy it
seeks from these proceedings. It asserts that the employer has failed to properly consider
alternatives to accommodate the grievor’s disability. The grievor’s disability, it is said,
precludes her from working in a location more than one half hour travel time away from
her home. The employer has extensive resources and a multiplicity of locations which
would meet those restrictions. It should be able to initiate accommodation efforts and
successfully identify an alternative that would meet the grievor’s restrictions without
causing undue hardship or disruption to other employees or to its own managerial
prerogatives. The union has not, however, identified any specific location where the
grievor ought to be assigned or any particular individual who ought to be displaced to
effect that assignment.
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In support of its position that none of the particular individuals identified by the
employer is entitled to notice, the union referred me to two relatively recent cases: Re
Orillia Soldiers’ Memorial Hospital and Ontario Nurses’ Association (1993), 34 L.A.C.
(4th) 315 (Swan), final award affd. 69 A.C.W.S. (3d) 679 (Ont. Div.Ct.) and Re John
Noble Home and Ontario Nurses’ Association, Local 102 (1994), 39 L.A.C. (4th) 324
(Mitchnick). Each of these cases dealt with grievors seeking to exercise collective
agreement bumping rights in the context of a layoff. Both decisions deal with preliminary
issues related to the rights of incumbent employees who could be affected were the
grievors successful in their bids to exercise those bumping rights. The arbitrators in these
cases each performed comprehensive reviews of the relevant legal authorities including
the decisions of the Ontario Court of Appeal and the Supreme Court of Canada in the
seminal cases of Re Bradley and Ottawa Professional Fire Fighters Assn. (1967), 63
D.L.R. (2d) 376, [1967] 2 O.R. 311, 67 C.L.L.C. para. 14,043 and Re Hoogendorn and
Greening Metal Products & Screening Equipment Co. (1967), 65 D.L.R. (2d) 641, [1968]
S.C.R. 30, 67 C.L.L.C. para. 14,064.
Those cases and their progeny have attempted to delineate the sometimes fine line
between, on the one hand, recognizing the exclusive right of the union as bargaining
agent to select which issues and legal interpretations it will or will not advance on behalf
of its members and, on the other, maintaining fidelity to established principles of natural
justice. They also recognize the desirability of maintaining the relatively informal and
expeditious process generally associated with labour arbitration as compared to the civil
litigation process.
In the Orillia case, Arbitrator Swan, writing for the majority of the board of
arbitration, synthesized many of these considerations and offered the following to
distinguish those cases which do from those cases which do not give rise to third party
rights (at p. 328):
…In the first, where employees will be generally affected by an
interpretation of the collective agreement which is binding upon all
members of the bargaining unit, some of whom will be advantaged and
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others disadvantaged, there will be no right to standing. The second
situation is where it is sought specifically to advantage one employee at
the expense of another in an arbitration in such a way that the outcome
will be binding upon the disadvantaged employee, but that employee’s
interests will not have been represented before the arbitrator by the union,
the statutory bargaining agent with an obligation to represent employees in
the bargaining unit for which it is certified. In this latter case, the rights of
an employee will have been adversely determined in a final and binding
way, not subject to further challenge at the instance of the employee,
without the employee having any representations made on his or her
behalf. In such circumstances, the court says that the employee must be
granted standing in order that there not be a denial of natural justice.
In coming to that conclusion Professor Swan had, in addition to the judicial
authorities already mentioned, considered some more recent arbitration decisions
including Re National Arts Centre Corp. and P.S.A.C. (1981), 30 L.A.C. (2d) 431
(Shime) and Re Queen Elizabeth Hospital and C.U.P.E. Loc. 1156 (1988), 2 L.A.C.
(4th) 281 (Craven). The National Arts Centre award involves circumstances remarkably
similar to aspects of the present case. The issue was whether the employee who had been
promoted into the position left vacant by the grievor's demotion was entitled to standing
in the arbitration proceeding challenging that demotion. Arbitrator Shime came to the
following conclusion (at p. 435):
The employer also suggested that if the union were claiming
reinstatement to the job that the incumbent should be notified of the
hearing. However, any person in the bargaining unit promoted as a result
of the grievor's wrongful demotion would only have a contingent right to
the job. That right is subject to the grievor's overriding right to claim his
job in the grievance arbitration process and the acceptance of a promotion,
in those circumstances, is conditional on the employer's actions being
sustained at arbitration. This is not a seniority promotion case where at
one point in time the grievor(s) and the incumbent(s) may have stood on
equal footing with equivalent rights to have the collective agreement
interpreted and applied – the rights here were never equivalent because the
incumbent's rights and the promotion were subject to the overriding right
of the grievor to have this matter determined by arbitration.
If the employer is correct in its contention then in every discharge
case the replacement or new hire would have the right to appear and all
persons, who may have been promoted throughout the employer's
organization as a result of the discharge, would also be entitled to appear.
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There are other situations where one might hypothesize the right of
numerous employees to appear. In my view this would unduly complicate
the arbitration process and it would also create rights which, in my view,
go beyond the rights of employees to appear in seniority promotion cases
which are quite distinguishable.
Without doubt, it is in job competition cases that affected employees are most
often acknowledged to have third party rights. The Queen Elizabeth Hospital case
involved a job competition and posited what may be viewed as a novel distinction
affecting those rights. The arbitrator distinguished cases in which the collective
agreement job competition language is of the "threshold" variety (e.g. senior qualified
applicant gets the job) from those in which the collective agreement contemplates a
"competition" (e.g. seniority is a factor only when the qualifications and abilities of
applicants are relatively equal). The case suggests that in the "threshold" type cases
incumbents do not have third party rights. That conclusion is premised on the assertion
that in such cases junior employees do not stand on an "equal footing" with senior
grievors. The issue to be decided in such cases is typically the "threshold" issue of
whether or not the grievor possessed the requisite qualifications for the job, an issue in
respect of which an incumbent can only be seen to be capable of making a very limited
contribution, if any. The incumbent’s right to claim the job in question is thus viewed as
contingent upon an issue which does not engage or require the participation of the
incumbent to the same extent as would be the case where it is the relative abilities of the
incumbent and the grievor which are directly at issue.
Returning to the Orillia case, Professor Swan determined that the employees the
grievors were seeking to bump were fully entitled to notice of and the right to participate
in the arbitration proceeding. That conclusion, in his view, was dictated by the nature of
the relief sought by the union and the impact of the arbitrator's award should that relief be
granted:
... Our order would be binding in law both on the successful grievor and
on the nurse being displaced and laid off, and it would be final in the sense
that, absent any jurisdictional error, it would be irreversible at anyone's
instance. In our view, the principles described in the Bradley and
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Hoogendorn cases require us to grant standing to any employee who will
be so affected by the proceedings before us, and to insist that the parties
provide adequate notice of any continuation of the hearing to such persons
of the nature of the jeopardy posed to their positions by the proceedings,
and their rights to participate in the proceedings.
As the collective agreement language in that case was comparable to "threshold"
type job competition language (the central issue being whether the grievors were
qualified for the positions in question not how their qualifications compared to those of
the incumbents), it is difficult to reconcile that conclusion with the decision in the Queen
Elizabeth Hospital case. Indeed, and although efforts were made to distinguish the
particular facts of that case, Professor Swan acknowledged that it does not squarely fit
within the principles he enunciated.
The John Noble Home case, a unanimous decision of a panel chaired by arbitrator
Mitchnick, also dealt with the rights of employees to participate in a hearing where those
employees faced displacement in the event the grievors were permitted to exercise their
bumping rights in the fashion sought by the grievance. That case included a further legal
wrinkle, however, in that the union was arguing that the grievors ought to be permitted to
"cobble together" full-time positions to bump into from the part-time positions occupied
by the incumbents.
The Mitchnick panel reviewed many of the same authorities set out above
(including the court decisions and the awards in the National Arts Centre and Queen
Elizabeth Hospital cases). It is fair to perhaps suggest that the orientation expressed in
this case is less receptive to the extension of third party rights. The board of arbitration
observed as follows (at p. 336):
In this board's view, to extend the rights of individual members of
the bargaining unit to intervene in arbitration proceedings unduly, out of
an "abundance of caution", is not really a cautious approach at all. While,
we recognize, this has in fact been the broad practice in the past, without
any obvious evidence of the situation getting out of hand, nonetheless we
agree with concerns raised by the association in this case that too lax an
acceptance of this individual "right" creates the real potential for
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disruption. If the employer position be adopted, it would follow that any
number of employees "affected" prejudicially by a contract administration
decision made by the union that negotiated the contract would be entitled,
each with his or her own lawyer, if they chose, to assume full party status.
The impact of any such third party addition in cost and scheduling delay
could be substantial, in a system that initially was intended, in replacing
the courts, to be sensitive to both. The "downside" risk, therefore, is not
an insignificant one, and particularly as collective bargaining expands its
range of persons being organized, the chances of such disruption actually
materializing become more prominent... If "directly affected" is in fact the
test, the list of logical applications, as observed in the National Arts
Centre case, is virtually limitless...
Having expressed the view that the approaches taken in the National Arts Centre
and Queen Elizabeth Hospital cases were correct, the Board went on, after referring to
the specific collective agreement language there under consideration, to conclude as
follows (at p. 338):
As can be seen, this is barely even the normal "threshold" clause,
since qualifications are not even mentioned. The clause on its face
indicates, simply, that the senior-most nurses are entitled to be retained.
Junior nurses in the bargaining unit, whatever their qualifications, cannot
in any way be said from the commencement of the matter to be on an
"equal footing" with the senior ones, and until the rights of those senior
ones are determined, we agree that the junior nurses’ rights are of a
"contingent" nature. There is in fact a form of "threshold" issue to be
determined here, not the typical one of the senior employee’s
qualifications, but as to whether or not this clause allows the senior laid
off employee to exercise her bumping rights against more than one junior
part-time nurse, in order to retain her original number of (full-time) hours.
But that, in our view, is an issue that is properly dealt with between the
trade union and the employer.
As already suggested, one may encounter some difficulty in fully reconciling the
views expressed in the two cases referred to me. It might be suggested that the decision
of the Mitchnick panel can be distinguished on the basis that it was decided in the context
of what was described as the "threshold" issue of whether a senior laid off employee can
exercise bumping rights against more than one junior employee. Indeed, while it
declined to find that any party apart from the union and the employer had a right to
participate in the proceedings, at least at that stage, it did not preclude the possibility of
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entertaining such arguments at a later stage in the proceedings. But while that may serve
to permit the two decisions to sit more comfortably together, there can be no mistaking
the fact that contrary views were expressed at least with respect to the extent to which the
decision in the Queen Elizabeth Hospital case is good law.
In any event, I do not find it necessary for the purposes of this case to fully
reconcile the existing jurisprudential tensions. For even accepting what may be the more
liberal view expressed in the Orillia case, I am satisfied that none of the individuals
identified by the employer in the instant case is entitled to notice of these proceedings or
to full rights of participation.
Insofar as the individual employee who assumed the grievor’s position subsequent
to her demotion is concerned, the case is, in all material respects, virtually
indistinguishable from the National Arts Centre case. There is no basis upon which the
individual and the grievor can be said to be on "equal footing". If the grievor’s demotion
was contrary to the collective agreement, there was not or ought not to have been any
position for the incumbent to fill. Any rights the incumbent may have to the position are
contingent upon the grievor having properly been removed from it. In that respect, the
situation is difficult to distinguish from a discharge case. And none of the parties, to their
credit, suggested that third party rights would arise in the context of a discharge case.
But further, in a point which is common to all of the individuals the employer
asserts are entitled to notice, neither is it the object of the grievance to displace the
current incumbent(s) from the positions they currently hold.
The positions filled through the job posting process (including the one "re-filled"
subsequent to the grievor's demotion) are all in locations said to be beyond the scope of
the grievor's ability to travel. Thus, whatever relief the union may ultimately be seeking
it will not include the assignment of the grievor to the positions currently occupied by the
individuals the employer asserts ought to be entitled to notice. In fairness to the
employer and as already indicated, the union was less than precise in articulating the
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specific relief being sought. It will undoubtedly argue that the employer ought to have
gone to greater lengths to attempt to accommodate the grievor's disability. It will clearly
not argue, however, that the grievor ought to be assigned to a position outside of her
physical limitations. This is not to say that, if the grievance is successful, there can be no
possible impact on the individuals identified by the employer. Indeed, the union has
indicated that among the options which might be pursued would be the exercise of the
employer's right to transfer employees in such a fashion so as to accommodate the
grievor and to facilitate her full-time assignment to a more suitable location. Depending
upon how the employer might choose to exercise that right to transfer employees, it is
possible that the individuals it has identified may ultimately and at least indirectly be
affected. Should that result obtain, there is no reason immediately apparent to me why
any of those incumbents would be precluded from filing a grievance in respect of their
treatment (I say nothing, of course, about the merits of or the basis in the collective
agreement for any such grievances). But it is neither the clear object of the present
grievance nor a necessary consequence of its success that any of the incumbents
identified by the employer be displaced from the positions they currently hold. And in
those circumstances, I am not satisfied that those incumbents are therefore entitled to
notice or the right to participate in these proceedings.
Finally, I note that the employer argued that the individual who turned down the
Fort Erie position because of the inconvenience associated with the travel requirements
should also be provided with notice of this hearing. Although the point was not argued
forcefully or in great detail, it was undoubtedly rooted in some conception of equity: if
the grievor is permitted to retain a full-time position despite her difficulty with the travel
associated, some sort of equivalent opportunity ought to be afforded to the employee who
turned the job down on a similar basis. Of course, and as the union points out, the basis
of the grievance is that the grievor's inability to travel is because of a handicap. It is not
at all clear that the other employee’s travel difficulties were in any sense equivalent. But
quite apart from that, there is no indication that the other employee ever filed a grievance
or otherwise complained about the job competition process. That would have been the
appropriate place to raise any such concerns. She apparently chose not to grieve and it is
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less than apparent to me why she should be permitted to pursue that claim through the
proxy of third party participant in the instant proceedings.
In view of all of the above, I am satisfied that none of the individuals identified by
the employer is entitled to notice of these proceedings or entitled to full rights to
participate in them.
The hearing in this matter will continue as previously scheduled.
Dated at Toronto this 9th day of September 2002.
__________________________
Bram Herlich, Vice-Chairperson