HomeMy WebLinkAbout1993-2498.Leeder.95-01-30 DecisionONTARIO
EMPLOYES DE LA COURONNE
CROWN EMPLOYEES DE L'ONTARIO
G R I EVAN C E
SETTLEMENT REGLEMENT
BOARD DES GRIEFS
COMMISSION DE
180 DUNDAS STREET WESt; SUITE 2100, TORONTO ON M5G 1z8
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GSB# 2498/93, 164/94, 296/94
OPSEU# 94B331, 94B628, 94B706
IN THE MATTER OF AN ARBITRATION
under
THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT
Before
THE GRIEVANCE SETTLEMENT BOARD
I
BETWEEN
OPSEU (Leeder)
Grievor
- and -
The Crown in Right of Ontario
(Ministry of Health)
Employer
BEFORE
H. Finley Vice-Chairperson
J. Carruthers Member
' D. Clark Member
FOR THE M. McFadden
GRIEVOR Counsel
Koskie & Minsky
Barristers & Solicitors
FOR THE
D. Strang
EMPLOYER Legal Services Branch
Management Board Secretariat
HEARING October 3, 1994
October 13, 1994
GSB 2498/93, 164/94, 0296/94
INTERIM DECISION
The Grievor, Mr. Barry Leeder, is a Registered Nurse. He
was dismissed from his position at the Brockville Psychiatric
Hospital on March 30, 1994. The Employer alleges that he ... failed to discharge the assigned professional duties
of a Registered Nurse in relation to charting and
treatment of a critically-ill patient assigned to [his]
care and.. . [that he] slept during portions of both of
the aforementioned shifts.
Mr. Leeder denies these allegations. The Employer, in compliance
with regulations, reported the allegations to the College of
Nurses and the Grievor is facing a discipline hearing in that
forum which will probably take place in early spring, 1995.
The matter came before us initially on October 3, 1994, and
at that time dates were scheduled for the hearing on the merits.
This is to commence on January 10, 1995, and is expected to
conclude on April 28, 1995. It is reasonable to expect that the
Panel's decision would be delivered late spring or during the
summer of 1995. In light of the time required, Counsel for the
Union, Mr. Michael McFadden, brought forward a motion for interim
relief, on the basis of the Grievor's personal and financial
situation, He is seeking the reinstatement of Mr. Leeder until a
final decision is made. His main concern is that Mr. Leeder
could risk losing his home in March, 1995, and he sees
reinstatement as preventing this occurrence. Mr. David Strang,
Counsel for the Ministry of Health opposes this motion.
The parties agree that the Board has jurisdiction to decide
this interim issue and Counsel suggested that we adopt the two
tests set out in the Ontario Labour Relations Board decision in
2912-92-M United Food & Commercial Workers International Union,
Local 175/633, Applicant
v. 810048 Ontario Limited c.o.b. as Loeb
Highland, Responding Party (1993), OLRB REP. MARCH, 197
(McCormack) .
[March 12, 19931
and followed in subsequent Ontario Labour Relations Board
decisions and private sector awards. The tests are
(a) the existence of an arguable case in the main application,
and
(b) the balance of potential harm or inconvenience to the
parties.
Since the Grievor denies the allegations, the parties agree that
the arguable case test has been met. The Board's decision,
therefore, will be determined by weighing the balance of
potential harm or inconvenience to the Employer and the Grievor.
Since both parties acknowledge that regardless of the
determination of the interim matter, the decision in the interim
matter is without prejudice to the final determination on the
merits. This Interim Decision does not deal with the merits of
the case.
EVIDENCE
Evidence was heard on October 3, 1994 from Barry Leeder
R.N., the Grievor, and from Linda Peever BSc., M.H.A., the
Assistant Administrator of Patient Care Services at the
Brockville Psychiatric Hospital, who was Acting Administrator of
the Hospital at the time of the discharge. The evidence provided
the Panel with the following information.
Mr. Leeder began employment at the Brockville Psychiatric
Hospital on November 2, 1985, as a Registered Nursing Assistant.
Following completion of his diploma studies he qualified as a
Registered Nurse and was reclassified in March 1988. He was
assigned to the Forensic Ward until September, 1993, when he was
moved to the Nursing Float Pool and thence to the Geriatric Ward
2
in March 1994. This was a disciplinary transfer which has been
grieved and is currently before this Panel. At the time of the
initial hearing date, his registration as a Registered Nursing
Assistant had lapsed but he retained his registration as a
Registered Nurse. ***
Due to the nature of this request, it is necessary to set
out certain details of the Grievor's personal situation. Mr.
Leeder is married and has two children, eleven and nine. His
spouse, who is employed full-time by the Community Living
Association, has a net income of $800.00 every two weeks. Mr.
Leeder was granted Unemployment Insurance benefits following his
discharge, was disqualified in June 1994 and reinstated as a
beneficiary on appeal, on August 12, 1994. He currently receives
a net benefit of $708.00 every two weeks. The two incomes
together give a total net household income of $1508.00 every two
weeks which is (divided by 2) $754.00 every week or (multiplied
by 4.3) $3242 monthly or (multiplied by 12) $38,906 annually.
Mr. Leeder's benefit entitlement ceases on February 10, 1995, and
provided he participates in the computer training programme in
which he has recently been accepted, will extend to March 3,
1995. Mr. Leeder stated in evidence that his discussions with
the bank had left him with the impression that "they were quite
firm" about his maintaining his mortgage payments. He also
testified that, because of recent new building the equity in the
matrimonial home had been considerably reduced and was under
$15,000, and the options such as severance and rental had been
considered and rejected for valid reasons.
Mr. Leeder has been seeking other employment and to this end
has sent out 50 resumes and participated in two interviews, both
in the nursing field. From the first, he had not yet had a
reply, and from the second, he understood that he had a good
chance at the position except for the fact that the reporting of
the allegations to the College of Nurses rendered him ineligible.
3
As of October 3, 1994, he had no further interviews scheduled.
Ms. Peever described the distinction between the training,
roles, responsibilities and accountability of the Registered
Nurse (RN) and the Practical Nursing Assistant (PNA) at the
Brockville Psychiatric Hospital. She testified that it is
difficult to provide adequate supervision to a staff person who
is alleged to be unreliable. She explained that both the RNs and
the PNAs work under the aegis of the Nursing Department and the
role of the RN is to provide direct patient care and to act in a
supervisory role to PNAs when functioning as a charge nurse.
During the day shifts, the Head Nurse fulfills the role of Charge
Nurse, while on the night shift, Mr. Leeder's usual shift, a
system of RN/PNA teams is in effect and the RNs are in charge of
a designated patient area. Under the rules of the College of
Nurses, the individual who provides the specific care to a
patient is responsible for recording the care given and the
concomitant details, and while the RN may only occasionally be
providing that care, he or she is still responsible for the care
which is given and it is incumbent upon the RN to be cognizant of
the state of the patients in his/her care. Two tools are in
place at the Hospital which assist staff in being both
knowledgeable and current about the patients. These are the
Clinical Record, a file which is located on the patient's ward,
and the individual patient Nursing Care Plan which is maintained
to ensure that "each patient's problems are met".
Ms. Peever was asked whether or not there were any nursing
positions within the Hospital which could be filled by an RN who
was unable to meet the requirements of the College of Nurses.
She replied in the negative and explained that part of the reason
for this is the major budget deficit, the pending cuts and
downsizing. She acknowledged that there was one RN who is
working in the Staff Education Department, that is, outside the
Nursing Department, whose position is classified as excluded, and
4
another who is on modified duties, doing Nursing Education.
JURISPRUDENCE
The power of the Board to grant interim relief is grounded
in the Crown Employees Collective Bargaining Act, by inclusion,
in the Labour Relations Act, s. 45 (8) [rep. & sub. 1992, c. 21,
s. 23 (311. It has been available to the Grievance Settlement
Board since February, 1994. The section reads as follows:
45 (8) An arbitrator or arbitration board shall make
a final and conclusive settlement of the differences
between the parties and, for that purpose, has the
following powers:
1. ...
2. ...
3. ...
4. To grant such interim orders, including interim
relief, as the arbitrator or arbitration board
considers appropriate.
The Labour Relations Act, s. 92.1(1) gives essentially the same
authority to the Ontario Labour Relations Board:
92.1(1) On application in a pending proceeding, the
Board may grant such interim orders, including interim
relief, as it considers appropriate on such terms as
the Board considers appropriate.
The Grievance Settlement Board's power to grant interim
relief is relatively new and there is a consequent lack of
Grievance Settlement Board precedent. Counsel, therefore, have
relied on the jurisprudence of the Ontario Labour Relations Board
and the private sector and have provided the Board with a number
of decisions which have been helpful both individually and as an
overview of the jurisprudence to date. These cases have also
raised some procedural questions and issues not raised by the
parties in the instant case, but which have been commented on by
the Panel. The Panel has concluded that a written review of
these cases and the excerpting from them will be helpful in
5
provincial labour relations boards abounds with
references to distinctive features of labour relations.
The Board in that case made an extensive review of relevant
jurisprudence, in particular, that of other provincial labour
boards, acknowledged their instructive benefits, and concluded
that it was important for the Labour Relations Board in Ontario,
as an expert tribunal in this Province, to develop its own
jurisprudence distinct from both that of other labour relations
jurisdictions and from the Courts, a jurisprudence which reflects
the particular features and realities of labour relations in this
Province. The Board also recognized "that the imposition of
relief before an adjudication on the merits is inherently
problematic to some extent". Throughout the consideration of the
Ontario Labour Relations Board development of the ingredients of
the test for interim relief, the Board stressed the remedial and
practical approaches which the Board has traditionally taken to
the labour relations issues before it and applied these same
principles. It also cited an earlier Ontario Labour Relations
Board decision, Radio Shack, [1979] OLRB Rep. Dec. 1220, in which
the Board commented on administrative tribunals and their ability
to respond sensitively and to develop effective remedies. The
comment applies equally to the Grievance Settlement Board: ... An administrative tribunal with a substantial volume
of litigation before it faces a great temptation to
develop "boiler plate" remedies which are easy to apply
and administer in all cases. This temptation must be
resisted if effective remedies are to buttress
important statutory rights. An important strength of
administrative tribunals is their sensitivity to the
real forces at play beneath the legal issues brought
before them and there is no greater challenge to the
application of this expertise than in the area of
developing remedies. to [sic] be effective, remedies
should be equitable: they should take account of the
economics and psychology permeating the situation at
issue; and they should attempt to take into account the
reasons for the statutory violation.
[para 31]
7
While the issues faced by the Grievance Settlement Board in
deciding issues of interim relief are in the same overall
provincial labour relations context, its jurisdiction which is
grounded in the Crown Employees Collective Baraainins Act and in
the Collective Agreements, and its sphere of influence are
focussed on the public sector. The Grievance Settlement Board
will, therefore in its turn, need to evolve a jurisprudence in
response to the particular issues and problems brought before it
in this context.
Mr. McFadden, for the Union, submitted that the concern in
the case at hand arises in part because of the timing of the
hearing process and certain crucial points in time in the
Grievor's personal and family situation. He referred the Board
to Loeb Highland, with respect to that particular issue. In that
case, the Union alleged that an individual who was actively
involved in the Union's organizing drive at the company grocery
store had been discharged by the employer. For procedural
reasons, the effect of the interim relief, it was noted, would
involve a relatively short period of time. It was also
acknowledged that during the relevant period of time, the
discharged individual had lied to a company official to cover up
the theft by a fellow employee
of a can of soda pop. The company
viewed this lying as a fraudulent "corroboration of the other
employee's version of the theft" and as evidence of his
implication in the theft itself, an offence for which the company
has published rules which provide for immediate dismissal.
The Panel hearing the Loeb Highland case rejected the
company's argument "that the Board's interim relief power should
be used only in rare and exceptional circumstances", noting the
lack of any such restriction in the legislation. The Board
determined that it was "more appropriate to start from the
position of attempting to elucidate a fair and intelligent labour
relations test for section 92.1(1)" and to submit the
8
applications for interim relief to such a test. The Board then
initiated the process of developing the ingredients of the test
and began by setting as one requirement that "the main
appl ication must reflect an argruabl e case" [Emphasis added] which
in procedural terms means that the application
for interim relief
must be filed simultaneously with or subsequent to the main
application so that the Board can make this determination.
The Board then goes on to address the issue of harm and the
often accompanying problem of delay. The Board noted the value
of the interim relief mechanism in preventing harm, but at the
same time cautioned that there is a risk of causing harm to one
party while preventing its occurrence to the other and that Itthe
Board must balance the harm to each party in considering whether
to grant an order". The decision sets out an approach which it
considers appropriate in the labour relations sphere, that is for
the Board to "consider both what harm ma Y occur if an interim
it is". order is not granted. and what har m may oc cur if
In the result the Board ordered reinstatement of the "union
organizer”, noting the Itthe intimidatory effect" that the
dismissal of a union organizer can have on other employees being
of the opinion that while early reinstatement cannot restore the
momentum it may minimize some of the potential harm. The
potential harm, the Board concluded, was significant. The
reinstatement, the Board recognized, places the employer in the
position of continuing to employ an individual who "admittedly
lied to company official, and lied to them about a theft", and
"may have at least some temporary negative effect on the
managerial authority of the company, and perhaps in particular,
on its policy with regard to theft". The Board was satisfied
that the chances of recurrence were minimal in the two-week
period that the reinstatement would be in effect, and concluded
that the harm to the organizing campaign would be the greater
harm and that the interim relief of reinstatement should be
9
granted, but, without compensation for the period between the
discharge and the interim reinstatement.
In
Re Veratec (Canada) Inc. and United Steelworkers of America,
Local 8505 (1993), 34 L.A.C.(4th) 67 (Haefling)
[May 17, 1993]
a 19-year employee, a machine operator, was discharged for the
acknowledged theft of 2 cartons of milk, the action being
recorded by video surveillance. The Union requested an interim
order
€or reinstatement of the employee, a married man with two
children 23 and 12 years of age, whose spouse had recently moved
from full to part-time work and grossed $400.00 per week. Having
been dismissed, the Grievor was, at least temporarily, ineligible
for Unemployment Insurance Benefits and his family had been using
its savings (approximately $3,000) to supplement his spouse's
income in an effort to meet the basic monthly bills and the
monthly mortgage payment of $800.00 per month. The wife's income
alone would give the family a monthly income of $1720.00, or an
annual income of $ 20,640.
The Employer in the above case, stated that employees were
not closely monitored, and that it was concerned the employee
might deliberately sabotage the equipment or create a Workers'
Compensation Board incident, although it acknowledged that this
employee had not engaged in such conduct during his 19-year
history with the company.
Arbitrator Haef ling gave an oral decision, written reasons
to tollow, on the preliminary matters, one of which was the
interim relief. In his reasons he stated that an order for
reinstatement pending a decision on the merits would, in his
opinion, be consistent with "the new powers given to an
arbitrator or board of arbitration." He also noted that
"Obviously, the granting of such interim orders does not
10
necessarily require that there be any initial findings of fact or
law based on the merits of a particular case.". Arbitrator
Haefling considered that the Union was requesting reinstatement
in order to provide temporary compensation to the grievor pending
a hearing on the merits and the issuance of a final decision.
This is essentially the same purpose as Counsel for the Union has
articulated in the case of Mr. Leeder, except that he has
focussed on the potential loss of the house in March 1995, as the
major area of concern. In Veratec, the Arbitrator ordered the
immediate reinstatement of the Grievor to his job. His rationale
was as follows;
In my view, an order for reinstatement such as the
union here is seeking, requires a balancing of the
interests of the employer and the employee. In my
opinion, as well, there must be some evidence of
mitigating circumstances. In this case, the grievor
has a lengthy period of service with the company and,
it appears, with no prior record of any conduct such as
is alleged here and admitted to by the grievor. Given
those facts, and based on the circumstances here, I do
not perceive that there is any threat to the company's
interests if the grievor were reinstated pending
completion of a hearing and decision on the merits.
Rather, if the grievor were reinstated, the company
would have the benefit of his experience as a machine
operator and the grievor, in recognition of his present
financial position and the loss of earnings following
the termination, would be paid his normal wages in the
intervening period.
[page 71]
In
Re Midas Canada Inc. and United Steelworkers of America, Local
6727 (1993), 36 L.A.C.(4th) (Briggs)
[July 15, 1993]
the grievor was, once again, a long-term employee (18 years),
married with two children with a spouse working four-days a week.
In this case, the children were working and contributing to the
household. The Grievor and his spouse had equity of
approximately $200,000 in their home and monthly mortgage
11
payments of $952.00. The Grievor had had a previous suspension
early in his employment with Midas and, he believed, a single
demerit point, under the company demerit system. This employee
was discharged. It was alleged he was
in receipt of weekly indemnity provided in the
collective agreement while gainfully employed elsewhere
thereby taking advantage of the plan, an act the
company likened to theft.
[page 3501
The Union strenuously denied the allegations. The Company's
representative stated in evidence that the Grievor had already
been replaced and that should he be reinstated that his
replacement would need to be laid off. He acknowledged, however,
that the Grievor had more seniority than the last two persons
hired and that those individuals were still on probation.
The Union in Midas urged the Arbitrator to follow Veratec,
supra. The Company, which had not been notified in advance of
the Union's intention to apply for interim relief and as a result
made its submissions in writing, argued that the timing of the
Union's request for reinstatement was an abuse of the arbitration
process and was different from Veratec, supra, in that the
interim relief request, in that case, was treated as a
preliminary hearing. The Arbitrator rejected this argument,
noting that while it may have been more courteous for the Union
to notify the Company in advance of the possibility of the
request, its failure to do so was not an abuse of process,
commenting that the Company chose not to avail itself of the
opportunity to request an adjournment. Counsel for the Company
submitted, in the alternative, that the Board should find that
the "evidence of the grievor's financial difficulty fell short of
proving that significant tinancial harm would be done to the
grievor it he were not reinstated" and that "the grievor [was]
not under financial strain". The Company commented as well on
the delay in the Grievor's application for Unemployment Insurance
benefits and his lack of knowledge of his wife's income and went
12
on to contend that the Board was "limited in its jurisdiction to
award an interim order by the parameters set out in their
collective agreement.". It was the Company's submission that the
Board should not adopt the tests set out in Loeb Highland, supra,
and instead "should be guided by the principles utilized by a
court in governing the granting of interlocutory injunctions",
that is the test of "irreparable harm", a direction specifically
rejected by the Ontario Labour Relations Board in Loeb Highland
in favour of "a balancing of harm done to the parties".
Arbitrator Elriggs in the Midas case chose to adopt the tests set
out by Ms. McCormack in Loeb Highland. Arbitrator Briggs also
rejected the Company's concerns with respect to prospective
discipline, compensation issues and morale, noting that these are
issues which will most probably arise every time that interim
relief is requested and therefore will be part of the Board's
consideration but should not be reasons for rejecting a request
for interim relief.
Arbitrator Swan in
He United Food and Commercial Workers Union and William Neilson
Ltd. (1993), Unreported, (Swan)
[July 16, 1993]
found in favour of the Employer for the following reasons:
In the result, given the diffuse nature of the
Union's claims both before me and at the Workers'
Compensation Board, the consequent difficulty in
assessing the inconvenience to the grievor if she is
not reinstated by my interim order, the absence of any
showing of some specific inconvenience being suffered
to the grievor apart from what may generally be
presumed, and the complete uncertainty as to what costs
will be imposed on the Employer by the conditional
reinstatement which the Union seeks, I have determined
that the balance of convenience at the present is in
favour of the Employer on the application for interim
relief.
[page 11]
He also made the following comments on the elements of
inconvenience:
13
I begin with the observation that not every
element of inconvenience must be strictly proved in an
application of this nature. Some presumptions can
readily be drawn from the circumstances of a case like
the present. For example, it can be readily concluded
that it is inconvenient for an employee to be out of
work and not in receipt of remuneration for any
substantial period. The extent of that inconvenience
will, of course, vary with the financial situation of
the employee, the availability of alternate employment,
and the anticipated delay before the main grievance can
be resolved in a binding way. There may be cases in
which such a presumption is sufficient to tip the
balance of convenience
in favour of an interim order of
reinstatement, but in a case where any substantial
inconvenience to the Employer appears, the presumption
alone may not be sufficient to overcome the Employer's
interests.
Similarly, while being required to have available
work performed by the grievor and paid for by the
Employer would not of itself give rise to any
presumption of inconvenience, there are other factors
which might very well demonstrate inconvenience to an
Employer, particularly where elements of additional
financial cost, reasonable apprehension of harm to the
workplace or other employees, or serious questions of
workplace morale arise. While there is no general
presumption that any of these results will flow from
the reinstatement of a discharged employee, such a
presumption may arise from special circumstances, even
in the absence of specific proof of these factors.
[pages 9 and 101
In the case of
Re PaintPlas (1989) Inc. and International Association of
Machinists & Aerospace Workers, Local 2524, 36 L.A.C. (4th), 168
(Gorsky)
[July 27, 1993]
Arbitrator Gorsky, at the outset, rejected
the submission of counsel for the employer that the
application be denied because of the delay in bringing
it. At the opening of the hearing I asked counsel if
they believed that the hearing on the merits could be
completed on that day, and there was some indication
that this might be possible. It was only after the
hearing went on for some time that it became apparent
that this was not possible. At that point counsel
14
entered into discussions about how many days were
needed to complete the hearing.
In the circumstances, the failure on the part of
counsel for the union to bring his application for
interim relief at an earlier stage is understandable.
It is one thing to have to wait for a month to complete
a hearing, it is quite another to have to wait several
months. Accordingly, the request of counsel for the
employer is denied.
[pages 195 and 196]
He also addressed the lack of exclusivity of the cases in which
interim relief would be appropriate:
In establishing the nature of the case for interim
relief before an arbitration board, I note that s. 45
(81, para. 4 of the Act "contains no hint that it would
be reserved to extraordinary cases ...”. As in the
treatment in Loeb, of s. 92.1.(1), the section before
me is "available in every proceeding ..." (Loeb at p.
13, 432, para. 19).
[page 184]
Arbitrator Gorsky went on to review the jurisprudence and looked
particularly at the concept of "irreparable harm" which is used
in the Courts. It's source is
America Cyanamid Co. v. Ethicon Ltd. [1975] 1 All E.R. 504,
[1975] 2 W.L.R. 316
He compared this to the concept enunciated in Loeb Highland, and
concluded that:
Viewing the subject of harm in the specific labour
relations context that exists in this case, I can say,
as the Ontario Labour Relations Board did in Loeb, that
the concept of irreparable harm is "not as useful to
[me] as it might first appear". Nor is it entirely
irrelevant.
Thus, in responding to the special needs of labour
arbitration, I would follow the procedure set out by
the board at p. 14, 434 of the Loeb case, which can be
adapted to the situation before me. This reduces the
subject of irreparable harm to one of a number of
aspects of harm which I may consider.
I view the balancing process as did the board in
Loeb, at p. 14,435, para 34, as not taking place "in a
15
vacuum, but rather in the context of the purposes and
scheme
of the Act", and in the case before me of the
collective agreement.
[page 1291
The issue of delay was also addressed in the following case:
Re Globe and Mail and Southern Ontario Newspaper Guild (Kelly),
(1993) 39 L.A.C. (4th) 85 (P. C. Picher).
[November 26, 1993
The Grievor, an arts critic, had been dismissed for alleged
plagiarism more than two and one-half years before the request
for reinstatement pending the resolution of the discharge
grievance, which had been and continued to be delayed. The
Grievor, had been unable to obtain steady employment in her
profession and had only a sporadic income from free lance work.
She had suffered professionally, psychologically and financially
to the point of seeking medical treatment for depression and
declaring personal bankruptcy. The Board looked at "the balance
of respective harm" and arrived at the following conclusions:
At this point, over two and one-half years after
the discharge, it is impossible for this board, through
an interim order, to put the grievor back into the work
place in a manner that would repair the professional
and psychological harm that has allegedly befallen her
in the intervening period. The alleged damage to the
grievor’s reputation has taken place over the two and
one-half years following her discharge because of the
allegation of plagiarism for which she was discharged.
The alleged cloud over the grievor's reputation and its
psychological effect will not be set aside by an order
for interim reinstatement because such an order does
not resolve the question of professional competence
raised by the discharge.
Interim reinstatement immediately following a
discharge might have been able to prevent the onset of
some of the professional and psychological damage
suffered by the grievor. Interim reinstatement now,
however, after that damage has occurred, will not
remove it. At this advanced stage in the process, and
without any consideration of "blame" for the timing of
the interim request, the reality is that the effective
response to professional and psychological damage will
come with the resolution of the merits of the discharge
grievance but not with an interim reinstatement.
16
[page 94
The financial difficulties endured by the grievor
have been serious but can be fully compensated if the
grievor wins her grievance. At this point, over two
and one-half years after the discharge, they do not,
standing alone, justify the interim order, when
considered together with the employer's circumstances.
[page 95
She then went on to consider the request from the employer's
perspective:
Looking at the situation from the employer's
perspective, the board accepts that it would be
difficult to reintegrate the grievor into the position
from which she was discharged while the allegations of
professional misconduct for which she was discharged
remain unresolved and the normal confidence between
employer and employee remains broken.
...
In addition, interim reinstatement would cause
disruption and inconvenience to the employer since for the
last two and one-half years, the grievor's work has been
assigned to other employees.
... The board cannot conclude that the balance of harm
is greater for the union/grievor if the interim order
is not granted than it is for the employer if it is.
Moreover, the passage of over two and one-half years
between the discharge and the request for the interim
order (without regard for the reason for the delay),
has had the effect of making an interim reinstatement
of the grievor more disruptive for the employer, on the
one hand, and less remedial for the grievor, on the
other.
[pages 95 and 96
The Ontario Labour Relations Board in
3608-93-M Milk and Bread Drivers, Dairy Employees Caterers and
Allied Employees, Local Union No. 647. Applicant v. William
Neilson Ltd., Responding Party. (Shouldice)
[March 10, 1994
addressed the issues of delay of 17 days on the part of the Union
in bringing a motion forward, and the respective harm, in a
request for interim relief in the form of reinstatement of 28
17
laid-off employees following the contracting out of warehousing
functions. The majority of the Board denied the relief
requested, finding that the balance of potential harm favoured
the employer, based on unrecoverable financial costs,
inconvenience and potential liability for breach of contract in
the neighbourhood of $250,000.. This Board followed the Ontario
Labour Relations Board jurisprudence which established the
principle that harm of a purely financial nature is normally not
sufficient to warrant an interim order reinstating individuals to
employment. It also looked at other effects of the loss of
employment such as strain, anxiety and stress and came to the
conclusion that to give weight to these factors would
have the effect in most if not all cases of requiring
the interim reinstatement of all terminated or laid off
employees pending the determination of the merits of a
main application.
[para 221
With respect to delay, the majority of the Board found the
17-day delay excessive in the context of the Ontario Labour
Relations Board and the particular situation, and noted that
there was "an inverse relationship between the length of time
taken to apply for interim relief and the ability of the [Ontario
Labour Relations] Board to fashion an effective interim remedy.
Health and safety risks were addressed by the Ontario Labour
Relations Board when considering the reinstatement of one of
three employees in
0152-94-M United Food and Commercial Workers International Union,
AFL/CIO, CLC, Applicant v. Shirlon Plastics Inc., Responding
Party (1994) (Shouldice).
[August 8, 1994]
It concluded that, the probability of his being the cause of a
potentially serious accident involving himself, and/or other
employees should he be reinstated, meant that the balance of
potential harm lay in favour of the employer. It concluded that
legitimate health and safety concerns of an employer
are considerations which ought to be taken into account
18
by the [Ontario Labour Relations] Board when assessing
the balance of harm.
[para 27
The Board went on to provide guidelines with respect to the
evidence required to enable the Board to give the matter proper
consideration:
Employers and supervisors are obliged to take every
precaution reasonable in the circumstances for the
protection of workers (section 25 (2) (h) and section
27 (2) (c) respectively, of the Occupuational Health and Safety Act, R.S.O. 1990, c. 0.1., as amended).
Legitimate health and safety concerns are, therefore, a
'harm' which the Board should weigh in favour of a
party to an interim order application such as the one
before this panel. However, it is not enough for the
employer to merely allege that significant health or
safety risks will result to the employer and/or others
should the employee in question be returned to his
prior employment. In order to satisfy the Board that
such concerns are sufficiently serious to warrant
significance for the purposes of refusing an interim
order that would otherwise issue, the employer must,
through its declarations, establish that demonstrable
health or safety risks may result should the employee
be reinstated to his or her position for the interim
period prior to the disposition of the underlying
application. There should be evidence before the Board
which would lead the Board to believe that there is 3
risk of unsafe conduct occurri ng should the employee be reinstated for the interim period pending the
disposition of the main application. It will, of
course, be the decision of the panel of the Board
seized with the interim order application to decide
whether, on balance, the health and safety concerns of
the employer, added to any other harm demonstrated by
the applicant which would result from not returning the
employee to work. This will, in our view, require the
Board to consider such factors as the probability of
the unsafe conduct occurring, the probability of injury
or damage happening from such an occurrence, and the
seriousness of the likely damage or injury which would
result from such an occurrence.
[para 27 [Emphasis added]
The Grievance Settlement Board has previously granted
compensation to a an individual suffering from depression and ill
19
health who was grieving dismissal. The compensation was granted
as a condition of an adjournment which the Board determined was
caused by the unavailability of the Employer's witness, due to
severe health problems. The Board in
OPSEU (Fabro) and The Crown in Right of Ontario (Ministry of
I ndus t r Y. Trade a nd Techno logy GSB 755/89, 757/89, (1991),
(Roberts) [June 7, 1991
dealt at the time with the issue of recoverability and the
majority of the Board made the following determination:
Finally, we dealt with the matter of
recoverability
of the compensation payments. The Board
was mindful of the fact that we were not dealing with
the question of damages but rather placing a term on
the granting of an adjournment in the interests of
reason and fairness. Our purpose was not to provide
the grievor with a windfall. Accordingly, we provided
in our order that should the grievor ultimately be
unsuccessful
in challenging his discharge, the sums
paid by the Ministry should be recoverable by the
MInistry, although without interest.
[page
14
In
Re Hospital for Sick Children and Canadian Union of Public
Employ ees, Local 2816, (1993) 33 L.A.C. (4th) 253 (Mitchnik)
[March 31, 1993
the Employer was implementing a reorganization and restructuring
of the patient care system and was planning to reduce by 28 the
number of Registered Nursing Assistants (RNAs) effective March
31, 1993. The Union, in its grievance was seeking a revocation
of the decision, or in the alternative a deferral and
compensation. the interim relief application proceeded as
f o l l ows :
On March 26, 1993, the union filed with me by fax an
application for an interim order, prohibiting the
hospital from proceeding to implement the restructuring
and lay-off plan until a decision has been rendered in
this matter on the merits. From a procedural point of
view the parties agreed that the new rules of practice
of the Ontario Labour Relations Board for interim
relief applications would be applied, and no oral
hearing on the application was requested. By noon on
20
March 31st, all of the parties' submissions were in my
hands, as directed by me, and I have now had the
opportunity to complete my review of them.
[page 254
In his consideration of the matter, Arbitrator Mitchnik commented
on the relationship between a consideration of the issue on the
merits and the relief power granted to arbitrators, and the
distinction between the context of the Ontario Labour Relations
Board's sphere of influence and that of the arbitrator hearing a
grievance arbitration. He commented as follows: ... Nor do I interpret the recent inclusion of an
interim relief power for arbitrators in the Labour
Relations Act, R.S.O. 1990, c. L. 2, as intended to
reverse the normal placement of such burdens generally
until a grievance can be arbitrated on its merits, in
the same way that, for example, the much talked about
inclusion of a "justice and dignity" clause would have
done. Having said that, there clearly will be cases
where the explicit option now provided for an
arbitrator to grant an "interim” form of relief will be
a useful one. Particularly where an employer acts
suddenly or precipitously, similar prompt action by an
arbitrator to control the potential harm may well be
found to be appropriate. This case does not fall into
that category. The reference to the same power given
to the labour board and recently exercised in Loeb
Highland (reasons for decision issued March 12, 1993)
is of limited assistance, since a primary concern in
that situation, not applicable to ordinary grievance
arbitration, was and is the consideration of the
"chilling effect" of the employer's action on an
ongoing organizing campaign. And even there, it is
notable that the board considered it appropriate to
limit its order only to the extent it felt necessary to
counteract that factor, and having regard to
the expedited basis upon which the hearing of the
merits was scheduled to take place.
[pages 255 and 256
The hearing on the merits was to commence in two weeks time and
Arbitrator Mitchnik denied the request for interim relief,
although he did suggest to the Employer that it
might well consider, given the proximity of the hearing
21
of the matter, whether it would be in its interest to
await the determination of the grievance, prior to
embarking on a complex process of reorganization which
would have the potential of having to be unravelled in
the very near future.
[page 256
The Panel hopes that this review of the jurisprudence which
Counsel presented has established a context for the Board's
ruling in the case at hand. For the Panel, the review has
emphasized that each case is unique, at least in its details, and
requires special consideration and further, that common sense and
practicality are important ingredients in interim relief
remedies.
ARGUMENT
Michael McFadden, for the Union, acknowledged that it was
agreed that there were two tests to be met, the "arguable case',
and the 'respective balance of harm'. It had been agreed that
the first test had been met and his argument focussed on the
balance of harm' which he characterized as a continuum. Mr.
McFadden noted the importance of the element of time in the case
at hand, terming it "time sensitive".
He then reviewed the relevant inconveniences or ingredients
of harm and looked at both the mitigating circumstances and the
Grievor's mitigation of damages. The Grievor, he stated, was a
nine-year employee, having served all of these in patient care,
and the last six as an RN. He had no prior record until
September, 1993, when an incident occurred which is currently
before this Panel. We should not, Mr. McFadden argued, put any
weight on this incident as to do so would be to prejudge it. Mr.
McFadden compared the situation of Mr. Leeder to that of the
Grievor in Veratec, supra, who admitted having stolen the milk.
22
He emphasized that Mr. Leeder has yet to have an opportunity of
asserting his innocence. He submitted that the seriousness of an
offence is not grounds for rejecting reinstatement on an interim
relief motion. He referred to the thefts in the retail industry
noted in certain of the cases and commented that theft is
considered extremely serious (a capital offence) in that
particular industry and that in spite of this, the Grievor was
temporarily reinstated. Mr. McFadden acknowledged that one of
the principles developing at the Ontario Labour Relations Board
is that it ought not "to intervene and use its power to grant
interim orders to avoid or limit harm which is purely financial".
(3152-92-M International Union, United Automobile, Aerospace &
Agricultural Implement Workers of America U.A.W.. Applicant v.
Morrison Meat Packers Ltd.)
[April 14, 1993
He urged the Panel to follow the less rigid approach of
Arbitrator Swan in William Neilson, supra, who commented that
"There may cases in which such a presumption is sufficient to tip
the balance of convenience", and submitted that the financial
situation may indeed, alone be enough to tip the balance in
favour of the Mr. Leeder. Mr. McFadden also directed the Board
to the headings which set out the factors considered by the
arbitration board in Kelly, supra, They are as follows:
1.
2.
3.
4.
5.
6.
Nature of the alleged wrongdoing and
apprehension of workplace harm in the event
of interim reinstatement.
Problems of availability of work for the
grievor at the point of the interim request.
Financial hardship as a result of continuing
une mp l o yme n t .
Psychological harm to the employee as a
result of the discharge.
The relative labour relations harm.
The ability of the unsuccessful party to be
compensated in damages or in some other
manner for the harm suffered if the order is
23
granted or denied.
7. Mitigating circumstances.
8. Mitigation of damages.
9. Expedition or lack thereof in bring the
application for interim relief.
10. The extent of delay before the resolution of
the main application or the grievance.
Mr. McFadden was not suggesting a slavish adoption of these
criteria but submitted them as a helpful checklist and went on to
apply some of these to the instant situation. He submitted that
there are no allegations of physical abuse, no acts of heinous
omission, and the Grievor is an employee with considerable
seniority and experience. He will know, Counsel submitted, that
he will be under very close scrutiny and will not want to
jeopardize his seniority, given the threat of downsizing. The
Board should not easily accept an employer argument that "it may
cause us problems”.
The Grievor, Counsel for the Union submitted, in contrast to
many of the employees in the cited cases, has done all that he
could reasonably be expected to do to arrange his financial
affairs in a responsible way. His wife is employed full-time; he
sold his truck to dispense with a substantial monthly payment, he
has been using the family savings for living, pursued his
Unemployment Insurance Claim, and diligently searched for other
employment. As well, he has provided clear personal financial
information. While one cannot say, Mr. McFadden submitted, that
the family will definitely lose their house, it is, he claimed,
highly likely that they will if they continue on the same
trajectory. The Grievor is subject to the psychological stress
of being under a cloud of suspicion professionally and of facing
discipline in another forum. If we deny the order, Mr. McFadden
argued, and he loses the house, we will not be able to compensate
24
him for that. While we may grant monetary damages in the result,
they would not return him to his home where the family has
resided since 1974, nor compensate him for his particular
interest in and personal investment in this property. Now is the
only time that we can preserve the Grievor's status and the
request tor interim relief is by way of preventing such harm
accruing .
David Strang, Counsel for the Employer, made the point that
the Grievance Settlement Board was given the authority to
grant interim relief to put it on a more equal footing with
arbitral authority in the private sector. It was not, he
contended, granted in response to any particular serious or
heinous situation. The discretion which has been granted,
however, does offer the Grievance Settlement Board the scope to
craft the most appropriate remedy possible and that need not be
reinstatement.
Mr. Strang, argued that if there was a need for dealing with
this matter quickly, then the Union should have proceeded by way
of expedited arbitration which is available under Article 27.18
of the Collective Agreement. The Employer was never approached
and asked whether or not it would be willing to consent to
proceed via this route. That failure, should alone dispose of
the case, submitted Mr. Strang. There is a significant
difficulty when someone is removed from the workplace by the
Employer and, several months later, the Board undoes what the
Employer has done. This action, in this time frame, is
particularly prejudicial to the Employer. He also stressed that
in the situation of a normal discharge, as distinct from those
before the Ontario Labour Relations Board involving organizing
drives, that the Employer faces an enormous penalty for being
wrong and as a result, there is a real disincentive to discharge.
At the Grievance Settlement Board, he commented, one does not
find the same labour relations harm or public policy which is
25
encountered at the Ontario Labour Relations Board.
Moreover, no harm has been alleged which cannot be
compensated by damages at the end of the case, Mr. Strang
submitted. The normal remedy, consisting of reinstatement,
damages and the restoration of seniority and benefits has been
and continues to be an acceptable remedy for dealing with
dismissal. There has never, in the record of the Labour
Arbitration Cases, been a case reported in which there has been
an award of damages for the economic or emotional loss of a
house, and such damages therefore, are not ones which he would
normally get under any circumstances. Further, an emotional loss
[which Mr. McFadden clarified he was not claiming] must be
grounded on a second cause of damages.
If we find that there is some harm to be guarded against, we
must, Mr. Strang, submits balance that. For instance, we must
balance the danger of having a nurse who cannot be trusted to
follow the Professional Code of Conduct for a substantial period
of time, against the mere probability that he may suffer the loss
of his house. We ought also, to look at the practicality of the
situation and the downsizing which is taking place at the
Hospital. If we were to reinstate the Grievor, we would be
replacing a dedicated employee with someone who has ignored his
duty against the mere inconvenience of moving. Viewed in these
terms, Mr. Strang contends that the balance "tips wildly in
favour of the Employer". If the harm complained of is not to
occur until March, then there are, perhaps, other remedies for
dealing with that, and Mr. Strang offered some suggestions in
that regard. The granting of interim relief does not, he
asserted, necessarily mean the granting of interim reinstatement.
There are also policy considerations which could have a
major impact. For instance, Mr. Strang argued, if this case is
interpreted to mean a shifting of the burden, then this is a
26
"massive shift" in policy. Although one can sympathize with the
Grievor's situation, it must be recognized, Mr. Strang submitted
that Employers are required to run enterprises and it is not
reasonable to say that all delay in the arbitration process will
be charged to the Employer and that the Employer will assume the
burden for every misconduct of any employee. The section of the
Labour Relations Act governing "interim relief"
does not say that. The Board, Mr. Strang submitted, should be
guided by the basic principle that interim relief should be
applied only in situations in which there is something which
cannot be fixed at the end of the day, and it should be borne in
mind that the Employer's harm will not be compensated at the end
of the day. The Union, he stated, was asking for consequential
financial damages and these, he contended, are too remote.
Mr. Strang referred the Board to
wn in Right of Ontario MNR GSB OPSEU (Sysiuk) and The Cro
195/89, 1990 (Keller)
[August 7, 1990
with respect to the remoteness of damages. In this case the
parties were "unable to agree on whether the grievor [was] to be
compensated for his inability to make the maximum allowable
pension contribution." The Board found as follows:
The Board does not take issue with the notion of making
the grievor whole. However, there is no principle that
does not have some limitations. In our view the nature
of the compensation sought by the grievor is entirely
too remote to be considered part of what has been
customarily understood to be a make-whole award and its
payment is not ordered by the Board. To the extent
that this was the issue to be determined, the grievance
is denied.
[pages 3 and 41
Mr. Strang went on to argue that if the Board were to grant
reinstatement because someone cannot manage their finances, it
would mean that a grievor who has been financially prudent and
has no financial difficulties would not have an argument for
27
reinstatement while a grievor who is completely prof ligate would
end up with an interim award. The personal financial situations
of employees are not and should not become the business of the
Employer or the Board, and employees should not be able to seek
advantage because of this, he asserted.
Mr. Strang cited Morrison, supra, and price Club, infra, as
standing for the proposition that the objective of interim relief
is to preserve the situation to allow the Board to give an
effective remedy at the end of the day. There are alternatives
to reinstatement but the Board must keep in mind, he maintained,
that it should be looking at an interim relief which preserves
its ability to give remedy in respect of the main application.
Mr. McFadden in reply cited
OPSEU (Sutherland) and The Cr own in R ight of On tario (M cs ) GSB
3043/92, 3044/92 3045/92, (1993, (Dissanayake)
[November 4, 1993
as being post Sysiuk. In this case the majority of the Board
found that
Those expenses were clearly a direct result of the
breach since the grievor would not have incurred those
if the employer had complied with the collective
agreement. We cannot accept that the parties would
have believed that they will not be held responsible
for monetary losses directly resulting from their
breach of the collective agreement.
In summary then, it is the Board's finding that
the travel expenses in question were a direct result of
the breach and further that those expenses were losses
that were not too remote. Accordingly, if the
grievances succeed on the merits, the union will be
entitled to be compensated for those travel expenses.
[pages 8 and 9
Mr. McFadden asserted that if the harm suffered is a reasonable
consequence, then it is not too remote. We do not have the
jurisdiction to compensate the Grievor for this at the end and
28
therefore, we should do it now. That, he maintained, is the
point of the power to grant interim relief. He cautioned the
Panel to remember that there is no evidence before us with
respect to the allegations nor is there any evidence before us to
suggest that morale in the workplace may be undermined. We
should, he submitted, consider the case on its facts and not be
swayed by the meritorious/profligate argument of the Employer
which, he believes, confuses the issue.
Counsel also referred the Panel to the following cases not
cited above:
3239-92-M United Food and Commercial Workers International Union,
Local 175, Applicant v. Price Club Canada Inc., Responding Party
(1993, OLRB REP. JULY 635 (Howe)
[July 16, 1993
3438-92-M
United Steelworkers of America, Applicant v. Tate
Andale Canada Inc., Responding Party (1993) (Shouldice)
[October 13, 1993
DECISION
The Balance of Potential Harm to the Parties
Until recently, when employees subject to the Collective
Agreement between Management Board of Cabinet and the Ontario
Public Service Employees Union were dismissed from employment,
they alone bore the burden of inconvenience pending the outcome
of the hearing. The power of the Board to grant interim relief,
in the form of reinstatement or other appropriate remedy, has
changed that. It has not, however, simply shifted the interim
burden from employees to employers. Nor has it resulted in a
presumption that the employee will be reinstated unless the
employer proves why this should not occur. The process which has
been accepted from the outset by the Ontario Labour Relations
Board and subsequently by a number of arbitrators following the
29
determination that there is an arguable case, is one of
“weighing” the potential harm or inconvenience to the parties in
a particular situation and granting or denying the interim relief
based on the outcome of this exercise, and on the practicalities
of the situation. If the potential harm or inconvenience is
greater for the employee, then relief would be granted; if it
is greater for the employer, it would be denied. In some cases
of dismissal, the inconvenience pending the outcome will be borne
by the Employer, in others, by the employee.
The delay with respect to interim relief will most often
occur at two points in the process: the point of application,
and the point of decision. What is a delay, or a reasonable or
acceptable delay, will vary with the context and the particular
situation. The Ontario Labour Relations Board normally deals
with cases which have a sense of urgency. These frequently have
the potential to have a major affect on large number of employees
and could have a major impact on an employer. That same Board
has seen fit to develop Rules
of Procedure and it is incumbent on
parties appearing before that Board to comply with them. These
procedural rules reflect “the inherent necessity for expedition
in these matters”. The Grievance Settlement Board, however,
operates in most instances in a broader time frame. It is not
unusual for cases to extend over several months. That is not to
say that Panels of the Board are insensitive to the delays as
they may affect the parties, particularly the grievors who are
often severely affected in their personal lives by delays which
seem to be inherent in the arbitration process. To this point
in time, however, the Grievance Settlement Board has chosen not
to develop a rigid procedural framework to which the parties are
required to adhere. The expedited hearing process has been one
response of the parties to this problem of delay. As set out in
the Collective Agreement, it requires the consent of both
parties. It is, however, seldom used in the case of dismissals,
in part, because there is frequently a number of witnesses to be
30
called on the main application.
Nothing in s. 45 (4) of the Labour Relati ons Ac t states that
applications for interim relief must be made at the outset or at
any other specific point in time, and indeed, this Panel is of
the opinion that interim relief may be filed for, in the context
of the Grievance Settlement Board, at any time from the filing of
the main application to the rendering of the decision.
Flexibility to allow for responsiveness, in the Grievance
Settlement Board context, is of value. The determination of
unreasonable delay (see Kelly supra depends on the
practicalities of the situation under consideration. Delay
could, in certain instances, make remedies impractical or
impossible. It could tip the balance of potential harm
in favour
of the employer: however, it could also have little or no impact.
The Collective Agreement provides a staged grievance and
arbitration procedure following a grieved discipline or
dismissal. If one includes the pre-hearing procedure,
considerable time can elapse between the discipline or dismissal
and the initial hearing date. There is no requirement that
interim applications be brought either immediately following a
dismissal, prior to the initial hearing date on the main
application, or on the first hearing day. Interim relief, which
may involve remedies other than reinstatement, may be brought on
at anytime. However, if the remedy requested is reinstatement,
the practicalities of staffing, in most instances, dictate that
the Employer will need to find a replacement quickly. This
suggests that the request for interim relief in a dismissal case
should come early in the grievance process, to minimize
disruption in the workplace. However, there are currently
practical problems such as case assignment and scheduling, which
require discussion from an administrative perspective to make
this feasible.
31
In the instant case, Counsel for the Union brought his
application for interim relief forward on the initial hearing
day. (The Panel does not have evidence with respect to the date
on which the Employer was informed that this application would be
forthcoming.) In the context of the current Grievance Settlement
Board administrative procedures this was not unreasonable. The
Hospital, because of its mandated continual coverage, staffs its
wards from a pool of nurses, and can use both part and full-time
staff. Although it may be preferable for patients to have a
predictable scheduling of staff, predictability is not always
possible, given vacations and sick time. Reinstatement, should
it be ordered, even at this date, would not, from a scheduling
perspective, have a significant impact on the patients, nor on
the Nursing Department.
It is the conclusion of this Panel, for the above reasons,
that delay of the application in this case would have had a
minimal impact and would not tip the balance of potential harm in
favour of the Employer.
This Panel, believes that it is preferable to provide a
decision in interim relief matters which is both more prompt and
more succinct. At the time of the hearing the Panel was not
asked for an oral decision, and given that the interim relief
power was new and untried in this context, the Panel would have
been reluctant to provide it at that point
in time. However,
having had the benefit of a thorough review of the jurisprudence
and procedure in other forums, namely the Ontario Labour
Relations Board and the private sector, oral decisions with
reasons to follow, or decisions within a two-week time frame,
appear to be possible. Whether that is a reasonable time-frame,
will depend on the circumstances in the individual case and the
ability of the Panels to respond promptly. We wish to assure the
parties that the delay in the decision, and we do accept that it
has been considerably delayed, has had no impact on the decision
32
itself.
In the instant case, the Grievor has had a major decrease in
his family income and this has had an impact on his and his
family's lifestyle. Not only is he under financial stress, his
professional future and his ability to retain the family home are
threatened, and it is reasonable to conclude that these factors
will have an emotional and psychological impact on him. He has,
however, not allowed this to prevent him from making responsible
financial cut-backs to mitigate the current and potential
reduction in income. He has also been diligent in seeking other
employment, Unemployment Insurance Benefits and other training.
His annual income is expected to be $38,906 and his monthly
income is $3,242 until March, 1995. This is greater than the
income available to the Grievors who were reinstated in Veratec
and Midas, supra, although the Grievor in the latter case had
equity, with his spouse, of $200,000 in the matrimonial home
which he could have used to raise money for day-to-day living.
The Grievor's income in the instant case is approximately $13,000
above the poverty-line level for a family of four in areas with a
population between 30,000 and 99,999, which was $26,126.00 in
1992, the most recent figures available from Statistics Canada.
Since that time the Cost of Living has increased by about 2%.
Unless there is some change in the Grievor's job situation,
his monthly income could be considerably reduced in March, 1995.
This is the point in time that his mortgage payments could become
problematic and Mr. Leeder stated in evidence that his
discussions with the bank had left him with the impression that
"they were quite firm". He also testified that, because of
recent construction, the equity in the home had been considerably
reduced and was under $15,000, and the options such as severance
and rental had been considered and rejected for valid reasons.
Between the initial hearing day on the interim relief and March,
1995, a number of changes could occur that might affect Mr.
33
Leeder's personal financial situation and his professional
standing, for better or for worse. At this point, we do not
know.
A review of the Employer's situation and the potential harm
or inconvenience which the Employer might incur shows several
distinguishing features, when considered in relation to the cases
cited above. One of the most noteworthy is the presence of
"patients” and the concomitant high duty owed by both the
Employer and its employees to these individuals. There is also
the question of potential liability for the Employer. Some of
the patients, particularly in the Psycho-geriatric Ward have both
physical and psychiatric problems and are unable to articulate
their needs and discomforts. Care of others, most markedly in
the Forensic Unit, demands the existence of a particularly high
level of mutual trust amongst staff. As well, the role of a
Registered Nurse at Brockville Psychiatric Hospital involves the
supervision of the Practical Nursing Assistants. This supervisory
role is delegated by the Employer and involves the trust and
confidence of the Employer, those supervised, and the patients.
Further, there is the trust placed in the Grievor as a
professional by the College of Nurses, and although he still
retains his professional status, he is the subject of a pending
disciplinary hearing. Therefore his professional standing
is
under a cloud. Mr. Strang argued that the Grievor's
reinstatement would replace "a dedicated employee by someone who
has ignored his duty". However, it has not been proven that the
Grievor “has ignored his duty". That is still an only an
allegation.
The Employer gave uncontradicted evidence that there were
only two nursing positions available at the Hospital which did
not involve patient contact, one in Staff Education, the other in
Nursing Education neither of which, in the Panel's opinion,
would be appropriate placements, under the circumstances. It was
34
also explained to the Panel by Ms. Peever, that the Hospital did
not have adequate staff to assume the special level of
supervision which she judged would be required should the Grievor
be reinstated on an interim basis.
The Panel has weighed the potential harm and inconvenience
to the Grievor, Mr. Leeder, and to the Employer, the Brockville
Psychiatric Hospital/Ministry of Health and has concluded that
the interim reinstatement of Mr. Leeder would be more disruptive
to the Employer than the failure to reinstate would be to the
Grievor. This, however, does not preclude the Union from seeking
interim relief, other than reinstatement, closer to March, 1995,
when the Grievor's situation may have become less fluid.
In the result, the Grievor's application for interim relief
in the form of reinstatement is denied. It is also the decision
of this Board that no other interim relief is appropriate at this
time.
Dated at Kingston,
.J. Carruthers, Member
D. M. Clark, Member
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