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HomeMy WebLinkAbout1988-0912.Courtenay.95-08-10 ..... ". ONTARIO EMPLOYES DE LA COURONNE " CROWN EMPLOYEES ' ' .' ~: ' OE [.'ONTARIO .... . . ~,,~. / ~¢~ c~' GRIEVANCE COMMISSION DE SE~LEMENT R~GLEMENT BOARD DES GRIEFS 2¢~ r 150 DUNDAS STREET WEST, SUITE 2100, TORONTO ON MSG 1Z8 TELEPHONE/T~Lf~PHONE : (416) 326-1388 19o, Ku~- uUNDA$ OUE-F,T, BUR£~U 2100, TORONTO (ON) MSG 1Z8 FACSiMiLE/Tf2L~COPIE : (416) 326-1396 GSB # 912/88 AUS 1 7 1995 OPSEU # 88C325-326 PUSLiC SERVICE APPEAL BOARDS - IN THE F, ATTER OF AN ~IT~?TON Under THE CROWN EHPLOYEES COLLECTIVE B~GAINING ACT Be£ore THE GRiEV~CE SETTLEI~NT · BETWEEN OPSEO (Courtenay) . ' ~ - and- The Cro~n in Right off Ontar£o (Ministry off Health) Employe~ BEFORE~ N. Backhouse Vice-Chairperson P. Klym Member H. Knight Member FOR THE S. ursel GRIEVOR Counsel Ursel & Wilkey Barristers & Solicitors FOR THE M. Quick EMPLOYER Counsel Legal Services Branch Ministry of Health HEARING May 11, 1995 -page 2- DECISION THE ISSUE The Grievor seeks damages for a breach of and failure to implement the Order of the Grievance Settlement Board dated October 7th, 1992, in this matter ("the initial Courtenay decision"). The Employer submits that the Board is without jurisdiction to hear the matter. THE FACTS By a grievance dated' August 18th, 1988, the Grievor alleged that she had been sexually harassed by. William Fawcett. The Grievor sought .the removal of Mr. Fawcett as the Grievor's supervisor. The Board constituted of T. Wilson~ Vice-Chairperson, P. Klym, Member and H. Knight, Member, commenced hearing this grievance on January 23rd, 1989, and concluded the evidence on July 6th,. 1990. A decision was not rendered until October 7th, 1992. The decision upheld the grievance.. The Employer was 'directed to comply with the Collective Agreement and to take whatever steps were appropriate 'to maintain a work environment free from sexual harassment. In particular, it was so directed with respect to William Fawcett's behavior towards the Grievor, The Board found that it would be inappropriate to direct the Employer to transfer Mr. Fawcett. No request was made for damages .by the Grievor and none were ordered. The decision stated: "I personally believe that he will comply: it is a matter of exercisi'ng self- restraint and refraining from inappropriate comments such we have found he made in the past." The Board remained seized of the matter pending implementation of its decision. Following .the release of this decision, the Grievor was given a letter of counseling and attended a one day workshop in sexual harassment. On June 8th, 1992, a further grievance was made against William Fawcett by V. Anderson regarding an incident in December, 1990, and a subsequent pattern of reprisal. The Employer commenced an investigation. An investigator's report dated March 1, 1993, (after the initial Courtn~y decision in this matter) found that William Fawcett was engaged in sexual harassment of V. Anderson and was in violation of the Collective Agreement. This investigation report was accepted by the Employer and Mr. Fawcett was suspended for 10 days on May 6th, 1993. The Andersgn decision was released September 16th, 1994, and ordered - page 3 - the removal of William Fawcett from his position of supervisor to V. Anderson. The Board declined to award any damages. Mr. Fawcett was transferred in December, 1994. The Grievor did not work from mid-1988 to December 28th, 1992, when she returned to work following the issuance of 'the initial Courtenay decision. The Grievor's LTIP expired December 3Ist, 1990, and she was without income from that date until December 28th, 1992, when she resumed working. THE PRELIMINARY OBJECTION The Employer submits that the Board is without jurisdiction to hear this matter on two grounds: 1. The Board is functus'officio with respect to this matter; 2. The panel as constituted on May I lth, 1995, does not. have jurisdiction to 'deaI with the interpretation or -" implementation of ~this award. '1. FUNCTUS OFFICIO OBJECTION The Employer submits' that in the initial Courtenay decision, the remedy including the issue of damages was expressly addressed. No damages were awarded. The Employer submits that .the Board has exercised its discretion with respect to this matter and 'is without jurisdiction to issue a further award. The Board specifically addressed the relief requested by the Grievor and held that an Order removing William Fawcett was not appropriate. The Employer submits that the award contained the necessary specificity to allow for its implementation in the context of the grievance before it and Was therefore complete and this board functus. The Employer relied upon the case of Re: Victoria Hospital Corporation and London and District. Servi, ce Workers' Union. Local 220 (1985) 22 L.A.C. (3d) 10 which held that a Board cannot subsequently enlarge, reduce or otherwise amend or interpret the initial award. The Employer further compared the case before this Board with Re: Canada Post Corporation and Canadian Union of Postal Workers (Medical Remuneration Supplement Grievance 28 L.A.C. (4th) 228 where the arbitrator made an award but left open the issue of quantum and to whom the damages should be paid. In ruling that the Board was not functus, it differentiated between amending or varying an award and completing it so · I - page 4 - that it was final and binding. The Board stated that an award was incomplete where it lacked the necessary specificity to allow implementation. The Union submits that the Board is not functus. The Union points out that in the initial Co0rtenay decision, the panel remained seized of this matter pending implementation of the decision. The Union relies on ge: Peaker et al v. Canada Post Corporation et al. (1989.) 68 O.R. (2nd) 8 (H.C.$.). for the following three propositions: 1. A settlement entered into by the union, employer and grievor constitutes "part of the system of collective bargaining". 2. In seeking specific performance of the settlement or an agreement constituting a portion of the settlement, it would "'offend the legislative scheme (of regulation of the employment relationship through arbitration) to permit the parties to a collective agreement...to have recourse to the ordinary .courts which are in the circumstances a duplicative forum to which the Legislature has not assigned these tasks." 3. Therefore, the appropriate jurisdiction for an order in the nature of specific performance is before the arbitrator. The Union cites this case for the following analogous propositions: 1. An award provided by a board of arbitration, in which the board remains seized in the event of difficulty of implementation, constitutes part of the system of collective bargaining and the legislative scheme of regulation of the employment relationship through arbitration. 2. A request for a further order of the board, which remains seized, because there has been difficulty in implementation, is in the nature of an order of specific performance. 3. This request may, of necessity, go beyond merely requesting specific performance, in that additional remedies may now be required because of the failure to fully implement the award in the first place. These - page 5 - remedies may be necessary to address the substance of the real dispute between the parties. 4. This is not the same request as that which might be made before a court upon filing of the original order under the provisions of the Crown Employees Collective Bargaining Act. as amended. Such a request would properly be that of enforcing the order. 5. Here the Union Seeks further and better directions and relief in respect of implementation of the original order, arising out of the Employer's failure to implement the order. Implementation is an issue over which jurisdiction is maintained by the Board. The Board is therefore, orr all these grounds, the proper forum in which to seek such specific relief. While the Employer does not dispute that the Board is the correct forum to 'adjudicate labour, relations grievances, such as the Courtenay grtevance, it submits that it must still adhere to concepts such.a functus officio and. other jurisdictional problems. 'The Union relied 'upon Re MCL Motor Carriers Etd. and Tear~sters Union~ Local 938, 30 L.A.C.(2d) 389 where the Board permitted the Employer to present fresh evidence following the hearing but before the Board had issued its award concerning a preliminary 'issue. The Union further relied upon Re: WellJ3gton County Board of Education' and Ontario Secondary School Teachers' Federation~ 21 L.A.C. (4th) 124, where the Board had directed the Employer to reconsider teachers' applications to participate in severance payment plans and remained seized for the purposes of implementation of the award. The Employer reviewed the applications .and took no action on any of them. It was held that the Board's jurisdiction was not limited to clarifying its initial award but extended to reviewing the reconsideration undertaken by the Employer. The Employer submits that Re: Wellington, supra, is distinguishable from the situation before us because what was there being sought was the implementation of a specific term rather than the granting of additional remedies. In Re: Canada Post Corporation and Canadian Union of Postal Workers (Policy Grievance N-88-02), 21 L.A.C. (4th)413, the Board remained seized of the remedy pending the parties' efforts to implement - page 6 - the arbitrator's direction, it was held that the Board was not functus officio in reconvening to secure compliance with the. direction. LACK OF .IURISDIC~ION OF THIS BOARD The Employer submits that as the Board which heard this matter on May l lth, 1995 has a different Vice-Chairperson than the Board which made the initial Courtenay decision, it lacks jurisdiction to resolve issues of' interpretation or implementation of that award. The Employer relied upon Re: Victoria. supra, and BP Oil Ltd. and Oil~ Chemical and Atomic Work. ers International. LoCal 9-599, 27 L.A.C. ((2nd) 241. In BP Oil, supra, the Board was asked to inquire into an award issued by another Board and more specifically to inquire into the previous Board's silence on a particular issue. That Board held on.p. 243 that it should not engage upon such an inquiry as the' best it could do was guess on what was intended by the first panel. The Union relied uPon Re: Ottawa Newspaper Guild and the Ottawa CitiZen. 20 L.A.C.27,where a grievance was held to 'be arbitrable where the cl~airperson died before delivering a final and binding award and a new board was appointed. The Union further relied upon Re: Charterways Tltansportatjon Ltd. and Teamsters Union. 30 L.A.C. (3d) 304, where it was, held a Board was properly constituted to address the question of compensation which had been reserved notwithstanding a change in union nominee. CONCLUSION If this matter is allowed to proceed, the Board will have to determine whether the Employer breached or failed to implement a term of the initial Courtenay decision' dated October 7th, 1992; which directed the Employer to take whatever steps were appropriate to maintain a work environment free from sexual harassment and in particular with respect to William Fawcett's behaviour towards the Grievor. In our view, this Board is not functus officio and has jurisdiction to reconvene to review the Employer's compliance with the direction to provide a work environment free from sexual harassment. (Re: Wellington, supra, and Re Canada Post Corporation and Canadian Union of Postal Workers, supra). While this Board does not have jurisdiction to alter, amend, or enlarge, the initial Courtney decision, it does have jurisdiction to address its implementation, a jurisdiction which it specifically reserved to itself. The remedy which is here sought is damages for failure of the Employer to implement the direction to provide to the Grievor a work environment free from sexual harassment by William Fawcett. This was ( - page 7 - not just a general direction or statement of principle which applied to all employees in the workplace. It was a direction specific to the Grievor, William Fawcett and the. Employer over which the Board reserved the right to monitor implementation. Further, in our view, 'this Board as constituted on May 11, I995, with a different chairperson, has jurisdiction to deal with the implementation of the initial Courtney decision. ( Re: Charterways, supra.) Damages for a breach of or failure to implement the initial Courtenay decision cannot precede in time the date of the order (October 7th, I992). This Board should be' reconvened for the purpose of hearing evidence as to the Employer's efforts after October 7th, I992 to maintain a work environment for the Grievor free from sexual harassment by William Fawcett and evidence' as ~to any damages of the Grievor suffered after that date. Dated at..To~on~°,' Ontario this lOth day of A_ug~flt, 1995~ Nancy. L. Bac~ouse gie'a-Gha~rperaon' Member H. Knight Member