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HomeMy WebLinkAbout1989-1880.Horne.91-09-24 ON T,~RIO EMPL O ¥~$ DE L A COU,9ONN~ CROWN EMP~.O YEE$ DE L'ON TARtO GRIEVANCE C,OMMISSlON DE SETTLEMENT REGLEMENT BOARD DES GRIEFS 180 DUNDAS STREET WEST, SUITE 21~, TORONTO, ONTAR~. MSG 1Z8 TELEPHONE/TELEPHONE: 150, RuE DUNDAS OUEST, BUREAU 2100, TORONTO (ONTAR/OJ. MSG IZ8 FACSIMtLE/TEL~COPfE .. z88o/89 Un,er THE CROWN EMPLOYEES COLLECTIVE BARGAINING ~CT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN Textile Processors, Service Trades, Health Care, Professional and Technical Employees .. International Union, Local 351-A, (Horne) Grtevor - a~d - The Crown in Right of Ontario (Metropolitan Toronto Convention Centre Corporation) Employer BEFORE: G. Simmons Vice-Chairperson E. Seymour Member D. Montrose Member *FOR THE C. Flood GRIEVOR Counsel Koskie & Minsky Barristers & Solicitors FOR THE R. MacDermid EMPLOYER Counsel Kerzner, Papazian, MacDermid Barristers & solicitors HEARIN~ June 15, 1990 June 25, 1991 INTERIM DECISION The parties appeared before the Board on June 15, 1990, at which time the Employer claimed that the Board had 'no jurisdiction to proceed to the merits. The Board issued ifs decision on fine preliminaw maffer on August 23, 1990, stating that for reasons contained in that award the Board had jurisdiction and that the grievor had a right to proceed to have his grievance resolved on ifs merits. The second paragraph of the August 23 decision reads: The Employer raised a preliminary objection to the Board's jurisdiction to hear this maffer on its merits. It asserted that no Collective Agreement exists or has previously existed between the parties and therefore the Board Jacked jurisdiction to embark upon an enquiry into or resolve the matter on ifs merits. It was agreed by the parties that we would receive submissions on the preliminary objection and issue a decision thereon before proceeding fo hear the grievance on its merits, On page 3 of the decision appears the following: In 1988 the legislature of thel Province of Ontario enacted the Metropolitan Toronto Convention Centre Corporation Act S.O. 1988 c. 52 which, pursuant to s. 14, made the Convention Centre a Crown Agency within the meaning of the Crown A.aency Act. The Metropolitan Toronto Convention Centre Corporation Act was proclaimed on October 1, 1988. It is agreed between the parties that as a consequence of the Convention Centre becoming a Crown Agency, the Labour Relations Act of Ontario ceased to be applicable to the Convention Centre and the collective agreement between the Union local and the Convention Centre ceased fo be binding on the parties, It is further agreed that the MetroDolitan Toronto Convention Centre Corporation Act provided no provisions for transition of the rights and benefits of the Collective Agreement from the Labour Relations Act to the Crown Employees Collective Bargainina Act, There further appears the following comment' on page 4: ... it is acknowledged that the grievor was a member of the bargaining unit and that he was not a probationary employee at the time of this dismissal. Rather he was a regular employee with seniorih/ status. It is further' agreed that the dismissal was based on disciplinary grounds. The matter next came forward on June 25', 1991, for what the Board believed to be a hearing on the merits of the dismissal. However, upon reconvening on June 25, 1991, the Employer raised another objection to the Board's jurisdiction claiming that what transpired was not a dismissal but rather was an abandonment or termination pu. rsuanf to Article 11.06(d) af the collective agreement that had existed prior to the time when the Employer became a crown agency,- Article 11.06 states: 11.06 Loss of Seniority An employee shall lose afl seniority and service rights and his or her employment shall be deemed to have terminated if: (d) he or she absents himself from work for three (3) consecutive working days without a satisfactory reason. This Article 1].06(d) shall not be interpreted as permiHing unauthorized absence of any duration. The Employer did not pursue the position that there was in existence a collective agreement under the Crown Employees Coflecfive BargainingActbecause it had ceased to be a collective agreement for reasons set out above. However, the Employer advanced the position that the parties had continued to canduct their relations on the basis that the terms and conditions of that prior collective agreement continued to exist after the Employer became a crown agency, After hearing representations of the parties, the Board issued an oral ruling as follows: At the preliminary hearing on June 15, 1990, the Board was led to believe that the issue before it was a disciplinary dismissal. The Employer argued that the Board had no jurisdiction to proceed with the merits for reasons contained in that preliminary decision. The Board ruled that s. 18(2)(c) of the Crown Employees Collective Bargaining Act grants rights to empioyees to grieve discipline or dismissal from one's employment without just cause and that these rights are in addition to any other dghts that may be contained in a collective agreement, For these reasons it is the Board's ruling that this case will proceed in the form of a disciplinary matter. The Employer then informed the Board that it had decided not to inform the Board that it would be taking the alternative approach of termination/ 5 abandonment versus dismissal'at the June t5, 1990, hearing because it did not wish ta confuse the Board. 11ne Employer stated that to have done so would have required the entire matter to have been heard on its merits on June i5, 1990, and it therefore decided to forego informing the Board of its intention. We are unable to accept this view. The Employer could have informed the Board .what its entire objection was fo be and discussion could have followed over the procedure to follow, Instead it based its objection on the ground that the dismissal was inarbitrabte because no collective agreement had ever existed under the Crown Employees Collective Bargaining Act. However, the Employer now seeks to rely on a term of the collective agreement that existed under the farmer legislation. We have some difficulty with that approach. The Employer's initial position was that there was no collective agreement existing between the parties but now wishes to reach back to apply terms and conditions of a previous collective agreement which it is agreed ceased to exist and have no effect when the legal regime changed making the Employer a Crown Agency. The Employer relied on Re Telegram Publishing CO, Ltd. and Zwelling and E~sig (H.C.J. Ont.) 74 C.L,L.C. 14,210; (C.A. Ont.) 76 C.L.L.C. 14,047. In that case the court held where there is no stipulation to the contraw the presumption is created that the terms and conditions of employment continue to be similar to those spelled out in the expired collective agreement. We are of the view that the Toronto Telegram decision is distinguishable from the instant situation in at least one respect and 6 quite likely in two. The Employer advanced 'the position af the June 75. 1990, hearing that what was before the Board was a disciplinary dismissal. It did not advance any proposition that it was a termination based on some article in a priar collective agreement. The Employer was not, therefore, relying on some article in a collective agreement in support of the reasons for the dismissal. Accordingly, on that basis alone it cannot be said that the Employer was relying on terms and conditions of employment that had existed in a prior collective agreement. Secondly, the Employer and the Union agreed at the June 15, 1990, hearing that the collective agreement between the parties ceased to be binding on the parties on October 1, 1988, when the Metropolitan Toronto Convention Centre Act was proclaimed. Indeed, the Employer took the position at the June 15, 1990, hearing that '".., no collective agreement exists or has previously existed behueen the parties_ ,,," [emphasis added) (see page 3 of the June 15, 1990, decision). The Union also alluded to this fact when it acknowledged that the parties were now operating under a different legal regime when the Employer became a crown agency (see page 7 of the June 15, 1990, decision). By expressly informing the Board that '",.. no collective agreement ... has previously existed between the parties ..." the Employer's statement must be interpreted as being an overt rejection of any terms and conditions that may have been contained in a Collective Agreement that existed prior to October 1, 1988, when the relationship between the parties was regulated by the Labour Relations Act. That is, the Board interprets the Employer's statement to mean that any terms and 7 conditions in the prior Collective Agreement ~eased to be binding on the parties after that relationship became regulated by the Crown 'Employees Collective Bargaining Act. This is unlike the Toronto Telegram decision, supra, where it was conceded that the terms and conditions of the expired Collective Agreement continued to be in force because neither party took any step to disclaim the existence of the terms and Conditions of the expired Collective Agreement. That is not the case in the instant situation. Moreover, the Toronto Telegram decision can be further distinguished on.the grounds of a change in the statUtory framework which regulated their relationship, For these reasons, we find that the Employer is unable to rely on certain terms and conditions of a Collective Agreement that it has expressly stated are no longer binding on them. Accordingly, the Board remains of the view that Section 18(2)(c) of the Crown Employees Coflecfive Bargaining Act grants jurisdiction to this Board for reasons contained in this and in the August 23, 1990, decision. The Board will enquire into whether there was just cause for what transpired pursuant to Section 18(2)(0), Finally, the Employer argued that it wished to rely on medical evidence'a~d Worker's Compensation Board documents in support o¢ ifs position that the matter before us was termination or abandonment and was not disciplinary in nature, Following further representation of the parlles, the Boord ruled that the parties would not be limited in presenting any relevant evidence they so desired. 8 However, the Board cannot ruJe on the odmissibSfy of evidence in the abstract and will consider the relevancy of the evidence as if is adduced. Accordingly, we reiterate our final paragraph in our decision of August 23, 1990, wherein it states on page 15: Accordingly, for all of the foregoing reasons, it is our decision that the grievor does have a right to proceed before this Board to hove his grievance resolved on its merits. The Board will accordingly advise the Secretary to schedule a further hearing in the normal manner. Dated at Kingston, Ontario this z4tt~ day of Septembe£ , 1991. Mr. C. Gordon Simmons Vice Chairperson Mr. Edward Seymour Union Member _~\- Mr. Doug 'M(~ntrose Employer Member