Loading...
HomeMy WebLinkAbout1989-1880.Horne.90-08-23 ~' ~"~ ONTARIO EMPLOYES DE LA COURONNE · / CROWNEMP~OYEES DEL'ONTARiO ~, GRIEVANCE C,OMMISSION DE SETTLEMENT REGLEMENT BOARD DES GRIEFS 180 DUNOAS STREET WEST, TORONTO, ONTARIO. M,SG tZ8 - ~UITE 2'100 TELEPHONE/T~L~:PHONE 180, RUE DUNDAS OUEST, TORONTO, (ONTARIO) M5G 1Z8. BUREAU 2100 (416)598-0688 1880/89 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN OPSEU {Home) Grievor - and - The Crown in Right of Ontario (Metropolitan Toronto Convention Centre Corporation) Employer - and - G. Simmons Vice-Chairperson E. Seymour Member D. Montr0se Member FOR TEE C. Flood GRIEVOR Counsel Koskie & Minsky Barristers & Solicitors FOR THE R. MacDermid EMPLOYER Counsel Kerzner, Papazian, MacDermid & Tremayne-Lloyd Barristers & Solicitors HEARING: June 15, 1990 GSB - FILE #1880/89 O.P.S.E.U. (Horne) and the Crown in Right of Ontario (Metropolitan Toronto Convention Centre Corporation) Members of the Panel: C. Gordon Simmons Vice Chairperson Mr. Ed Seymour Union Member Mr. Doug Montrose Employer Member Appearances for the Emplbyer: Mr. Robert A. MacDermid 121 King Street West, 5th Floor Toronto Appearances for the Union: Mr. Craig Flood Union Counsel Hearing held in Toronto, Ontario on June 15, 1990 SUMMARY The Ontario Public Service Labour Relations Tribunal certified the Union as the exclusive bargaining agent for a number of employees on October 10, 1989. The grievor, an employee with seniority, had his services terTninated on January 12, 1990. The Union and the Employer entered into a Collective Agreement pursuant to an award by an Arbitration Board on April 27, 1990. The grievor claimed that his dismissal was unjust and sought reinstatement pursuant to Section 18(2) (c) of CECBA. The Employer raised a preliminary objection claiming that the Board had no jurisdiction to enquire into or resolve the grievance on its merits because there had never heretofore been a Collective Agreement in existence between the partfes. Held. The grievance is arbitrable on its merits. Once it is established that the grievor falls within the jurisdiction of CECBA then Section 18(2) (c) grants certain rights directly to employees and such rights are in addition to any Collective Agreement that may have been in existence. By this grievance, the grievor, Mr. K. Horne, claims that his termination was unjust and he seeks reinstatement without loss of wages or benefits. The Employer raised a preliminary objection to the Board's jurisdiction to hear this matter on its merits. It asserted that no Collective Agreement exists or has previously existed between the parties and therefore the Board lacked jurisdicti6n to embark upon an enquiry into or resolve the matter on its merits. It was agreed by the parties that we would receive submissions on the preliminary objection and issue a decision thereon before proceeding to hear the grievance on its merits. The factual background is not disputed and is as follows. In the spring of 1986, the Textile Processors, Service Trades, Health Care and Professional and Technical Employees International Union, Local 351, made an application to be certified as the collective bargaining agent for all employees of the Metroplitan Toronto Convention Centre Corporation to the Ontario Labour Relation Board. By its decision dated July 17, 1986, the Board certified the trade union as the exclusive bargaining agent for all emplgyees of the Metroplitan Toronto Convention Centre Corporatign in the Municipality of Metropolitan Toronto, save and except Supervisors, persons above the rank of supervisor, office, clerical and sales staff, security staff, persons'regularly employed for nOt more than 24 hours per week and students employed during their school vacation period. 3 Throughout the balance of 1986, the Convention Centre and the Union conducted collective bargaining negotiations and on or about January 16, 1987, the Convention Centre and Local 351 entered into a collective agreement. In 1988 the legislature of the 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 meaningL of the Crown A~encv 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 to be binding on the parties. It is further agreed that the Metropolitan 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 Bargaining Act. On or'about March 29, 1989, the Union, now referring to itself as Local 351A, made an application for representation rights under the Crown Employees Collective Bar~ainin~ Act. During the processing of the Union's application the Convention Centre was designated by regulation as the'Employer pursuant to s.l(4) of the Crown Employees Collective Bargainin~ Act R.O. 254/89. By its decision dated October 10, 1989, the Ontario 4 Public Service Labour Relations Tribunal granted representation rights to Local 351A to represent the employees employed by the -Convention Centre. It is acknowledged that the grievor was a member in the bargaining unit and that he was not a probationary employee at the time of this dismissal.~ Rather he was a regular employee with seniority status. It is further agreed that the dismissal was based on disciplinary grounds. The parties, in the course of collective bargaining were unable to negotiate a settlement of the various outstanding issues. AccordinglY, the outstanding issues were submitted to final and binding arbitration under sections 11 and 12 of the Crown Employees Collective BarGaininG Act. By its decision dated the 27th day of April, 1990, the arbitration board imposed a collective agreement on the employer a~d LocaI 351A and subsequent thereto, a collective agreement was entered into by the parties based on the terms established by the arbitration award. The grievor's services were terminated on January 12, 1990 and he filed his grievance on January 18. The Employer acknowledges that the Grievance Settlement Board has jurisdiction to adjudicate a dispute arising under an expired collective agreement because of the decision in Re Ontario Public Service Employees Union and The Oueen in RiGht of Ontario et al. (1985) 51 O.R. (2d) 475 (Div. Ct.). In that decision it was held that the Grievance Settlement Board is a statutory, tribunal established under the Crown Employees Collective BarGaining Act (the Act) and has jurisdiction to consider all grievances under any collective agreement that may have been in force between the parties from time to time who come within the purview of the Ac_ t. This is different from the private sector where the norm is to have ad hoc arbitration tribunals adjudicate grievances which is or may be composed of arbitration boards having different members. (See Re Romi ~Division of Ault Foods Ltd.) and United Food and Commercial Workers, Local -175 (1986)~ 25 L.A.C. '(3d) 377 (Weatherill); Re F.B.M. Distillery Co. Ltd. and Brewery. Malt & Soft Drink Workers. Local 304 (1987) 31 L.A.C. (3d) 122 (H.D. Brown); Re Mack Canada Inc. and Interna_tional Association of Machinists~ Lodge 2281 (1988) 2 L.A.C. (4'th) 304 (Burkett)). Nevertheless, the Employer argued that in order for the Board to assume jurisdiction there must have been a collective agreement in existence at some time previously. Without the existence 6f such a collective agreement, the Board lacked jurisdiction to entertain the grievance on its merits. Counsel based his argument on s.19 of the Ac__~t which reads as followS: (1) Every collective agreement shall be deemed to provide that in the event the parties are unable to effect a settlement of any differences between them arising from the interpretation, application, administration or alleged contravention of the agreement, including any question as to whether a matter is arbitrable, such matter may be referred for arbitration to the Grievance Settlement Board and the Board after giving full opportunity to the parties to present their evidence and to make their submissions, shall decide the matter and its decision is final and binding upon the parties and the employees covered by the agreement. (2) The Grievance Settlement Board has the same powers as a board of arbitration under subsections 11 (11) and (12). (3) Where the Grievance Settlement Board determines that a disciplinary penalty or dismissal of an employee is excessive, it may substitute such other penalty for the discipline or dismissal as it considers just and reasonable in all the circumstances. Subsection 11 (11) and (12) read: (11) A board has all the powers of the Tribunal, (a) to summon and enforce the attendance of witnesses and to compel them to give oral or written evidence on oath or affirmation; (b) to administer oaths and affirmations; and (c) to accept or exclude any oral testimony, document or other thing. (12) A board may, (a) enter any premises of the employer where work is being done or has been done by the employees or in which the employer carries on business or where anything is taking place or has taken place concerning any of the differences submitted to it or him, and inspect and view any work, material, machinery, appliance or article therein, and interrogat~ any person respecting any such thing or any of such differences; and (b) authorize any person to do~anythigg that the board may do under clause (a) and to report thereon to the board. R.S.O. 1980, c. 108, s. 11. It was the Employer's position that a collective agreement had to have been in existence at some point in time before the grievance Was filed in order to clothe the Board with jurisdiction. Counsel'for the Union acknowledged that the issue before us is unique. He also agreed that while a collective agreement had existed prior to the time when the Employer became a Crown Agency or corporation, the parties were now operating under a different legal regime. However, the Union disagreed with the Employer that the Grievance Settlement Board lacked jurisdiction to consider and resolve the grievance on its merits. He referred us to s.18 of the Ac_~t which reads: (1) Every collective agreement shall be deemed to provide that it is the exclusive function of the employer to manage, which function, without limiting the generality of the foregoing, includes the right to determine, (a) employment, appointment, complement, organization, assignment, discipline, dismissal, suspension, work methods and procedures, kinds and locations of equipment and classification of positions; and (b) merit system, training and development, appraisal and superannuation, the governing principles of which are subject to review by the employer with the bargaining agent, and such matters will not be the subject of collective bargaining nor come within the jurisdiction of a board. (2) In addition to any other rights of grievance under a collective.agreement, an employee claiming, (a) that his position has been improperly classified; (b) that he has been appraised contrary to the governing principles and standards; or (c) that he has been disciplined or dismissed or suspended from his employment without just cause, may process such matter in accordance with the grievance, procedure provided in the collective agreement, and failing final determination under such procedure, the matter may be processed in accordance with the procedure for final determination applicable under sectional9. R.S.O. 1980, c. 108, s. 18. In particular, counsel ~for the Union stressed that s.18(2) provides individual employees with independent rights. That is, critical inalienable rights of employees are provided to individuals which cannot be taken away by collective agreements. In his view, these inalienable rights are not conferred by a collective agreement nor are they capabl~ of being taken away by collective agreements. Counsel for the Union relied on Re Ontario Public Service Employees Union and the Crown in Right 6f Ontario et al. (1983) 44 O.R. (2d) 51 (Div. Ct.) in support of his position. Further, counsel for the Union argued that the Board has been conferred with certain rights by the Act that are independent of any ¢ollectiue agreement. He argued that it is a permanent board established by the Act which is not dependent upon consent of the parties. Its remedial'powers are to determine whether just cause exists in discipline and dismissal cases pursuant to s.18(2) (c) and it possesses the right to substitute a lesser penalty by s. 19(3). Therefore, it was the Union's position that this Board possesses 9 the jurisdiction to enquire into and resolve the grievance on its merits. We agree that this is a very unusual case. We are unaware of any previous case with identical facts ever having gone before an arbitration board. One's initial reaction is that ~he Employer's position contains a great deal of merit. This reaction is no doubt due to the traditional approach that is taken in the private sector and which is naturally the reaction anyone.who has had experience arbitrating disputes in the private sector would have. However, upon closer scrutiny one is driven to consider more closely the differences that exist between the private and public sectors. It'is clear that a collective agreement cannot detract from the rights granted to an employee by s.18(2). This was the conclusion reached in the O.P.S.E.U. case refer~ed to supra. That case involved a grievance over an improper classification. The grievors had sought reclassification and were successful. However, they disagreed with the Employer's decision to make the effective date of the reclassification effective from October 1, 1980. The grievors claimed that the effective date ought to have been July 1, 1978. The Board stated that it had jurisdiction to resolve classification issues by virtue of Article 5 of the collective agreement and by s.18(2) in the Act. However, the Board concluded that it lacked jurisdiction under either the collective agreement or the Act with respect to matters of retroactivity and it'refused to hear the grievance on its merits. While recognizing that it had 10 made retroactive awards in the past it distinguished those cases because the classification had been'changed before the grievance had been filed and therefore the issue was moot. In quashing the award, Mr. Justice Osler, for the court, stated the following at page 53: We have no doubt that s.18(2) of the statute applies notwithstanding the existence of the collective agreement. The statutory section is not limited in its application to probationers or others who do not have the full protection of the agreement. To the extent the Board based itself on the view tha~ Art. 5 of the agreement limits the operation of s.18(2), we believe they are wrong. That is an interpretation of the language of the statute it cannot reasonably bear. We do not find it necessary for the purposes of this application to construe Art. 5 of the agreement standing alone. We are of the opinion that the board declined its jurisdiction by refusing to hear evidence and to consider the grievance on its merits. In Ontario Public Service Employees Union v. The Oueen in RiGht of Ontario et al. (1982) 40 O.R. (2d) 142 (Div. Ct.) the issue again involved an alleged'improper classification. The grievors claimed that they ought to have been classified "Supervisor of Juveniles" (SOJ) and not as "Observation and Detention Workers" (O&D). The Grievance Settlement Board stated that, "there seemed to be little, if any, real .difference between the work being performed by the SOJ-2s and O&D-2s" but refused to allow the grievance because ih felt constrained to do so because of Re Metropolitan Toronto Board of Commissioners of Police and Metropolitan Toronto Police Assn. et al. (1981) 33 O.R. (2d) 476, a decision of the Court of Appeal. 11 The decision was quashed and Mr. Justice Callaghan, speaking for the Court, said at page 145: The issue before the Board was whether or not the grievors had been properly classified. We are of the view that the Metropolitan Board of Police Commissioners case has no application to the case at bar. That decision was premised on the finding of the arbitrator that there was no provision in the collective agreement governing the matters in issue therein (per Houlden J.A. at p. 479 O.R.). In the instant case not only did the collective agreement provide a right to grieve (Art. 5.1.1) the Act itself provided a clear 'right to grieve classification under s.18(2) (a). The right so given is not restricted to allowing only grievances within a particular series or within a particular facility. To so restrict the right to grieve as the Board did would render such a right largely illusory. Where a right to grieve a marticular matter is specifically recognized by legislation it ought not to be restricted absent a clear intention on the mart of the legislature to do so. [Emphasis added] While the above two cases involved classification issues under s.18(2) (a), collective agreements have not been permitted to curtail the scope of s.18(2) (c) which involved disciplinary matters. In Re Attorney-General for Ontario and Keeling et al. (1980) 30 O.R. (2d) 662 (Div. Ct.) the grievor filed a grievance pursuant to the collective agreement concerning his dismissal. However, the grievance was not filed within the fifteen day limit stipulated in the collective agreement. The Board held that~a collective agreement cannot derogate from the Ac__~t and since s.17(2) [now 18(2)] did not provide time limits the matter was grievable on its merits. The Divisional Court dismissed the Employer's 12 appeal. Mr. Justice Reid,' speaking for the Court, stated at page 665: In a word, the argument was that ss.17 and 18 ofthe statute guaranteed a right to grieve with respect to a dismissal that could not be derogated from by anything in a collective agreement. The result would be that a failure to observe the time-limits in the agreement would not prevent the grievance from being launched before the Board or inhibit the Board in making a final determination of it. The Board's reasoning reached back for its. source to another case decided by the Board, Re Joyce. In a word, the Board adopted the reasoning it had adopted in that case. This was notwithstanding that Joyce dealt with the right of a probationary employee to grieve whereas the question in this case was the right of an employee to have a final determination by the Board in spite of a failure to follow the time-limit. Nevertheless, it appears to us, that the reasoning of the Board in the Jo¥ce case was appropriate to the present case. In Joyce ~he Board had said: The second limitation adverted to by the employer, which it claimed denied a probationary employee the right to invoke his or her rights under s.17(2), of the Act, is found in art. 30.6.1 of the collective agreement . . . The article provides: 30.6.1 Any probationary employee who is dismissed or released shall not be entitled to file a grievance. In determining the effect to be given to such a provision, it is, we believe, important to recognize at the outset that the Crown Employees Collective Bargaining Act, 1972 departs from the traditional model of the labour relations legislation commonly prevailing in the private sector. That is to say, in sharp contrast with the usual Labour Relations Acts by which individual rights are made subject to the interests of the c~llectivity, in s.17 (2) of this legislation one finds a clear and unequivocal recognition of certain basic rights which enur~ specifically to the individual employee . · . The point is, a~d regardless of its merits, the LeGislature has seen fit to bestow upon its employees certain fundamental rights quite apart from and independent of any other rights secured on their behalf by their bargaining representative. As the section quite explicitly states the right to grieve the matters described in cls. (a) to (c) is "in addition to" any other rights of grievance that these employees have secured under a collective agreement. Succinctly, those rights are personalized to the individual "employee". [Our emphasis] In all of the above situations there either existed or had been a prior collective agreement that had expired. In this respect, those decisions are distinguishable from the instant situation. There had not been any collective agreement previously signed by the parties under the 'present legal regime when the grievor's services were terminated. As we have stated above, the fact that ther~ had never .been a collective agreement would ordinarily render the matter inarbitrable. However, in considering the above authorities and the wording of s.18(2) of the A~t it+ is our respectful opinion that the grievor does indeed possess a right to grieve his dismissal and that the Board has the jurisdiction to adjudicate his grievance. Our reasons are as follows. The Ontario Public Service Lab°ur~ Relations Tribunal certified the Union on October 10, 1989 making it the exclusive barqaining aqent within a define~ bargaininq unit in which the grievor is a member, it is not denied that upon being certified 'the Union was granted certain rights and obligations under the Act. That certification also brought the grievor within the jurisdiction of the Act which likewise provides certain rights and protections to employees. In this connection, s.18(2) extends certain rights directly to employees as opposed to the parties and it expressly states that, "in addition to any other rights of grievance under a collective agreement, an employee claiming," that he has been disciplined or dismissed may process such matter in accordance with the grievance procedure provided in the collective agreement. While we recognize that ·the existence of a collective agreement would have assisted the parties in setting out the procedure to be followed while processing the grievance· that problem, if there was one, was not raised as an issue. And, in any event the grievor, the Union, and the Employer appea~ed before the Board so if there had been a procedural problem, of which we were not informed, it has been overcome because everyone concerned with this matter was in attendance at the hearing. Moreover, the· Court decisions cited above appear to support the position that employees, as opposed to parties, have substantive rights by virtue of s.18 which cannot be taken away by the collective agreement. Once an employee can establish that he. falls within the jurisdiction of the Act, then it is our view that s.l$ extends certain protections directly to the employee. As was stated in the Jovce case quoted in Keeling, "succinctly, those 15 rights are personalized to the individual 'employee'" and also in the OPSEU case reported at 40 O.R. (2d) 142 above, it was stated: Where a right to grieve a particular matter is specifically recognized by legislation it ought not to be restricted absent a clear intention on the part of the legislature to do so. We agree with those statements which, we believe, support the conclusion we have reached. Finally, and perhaps less importantly, we are aware that under 'the Public Service Act and Regulations non-unionized public servants may pursue dismissal grievances before the Public Service Grievance Board. However, s.23(2) of that Act refers to a deputy minister dismissing a public servant which is not the situation that is before us. In other words, the grievor would not be able to have his grievance dealt with on its merits before that Board. Accordingly, for' all of the foregoing reasons, it is our decision that the grievor does have a right to proceed before this Board to have his grievance resolved on its merits. The Registrar will be requested to establish hearing dates for this purpose. 16 Dated at Kingston, Ontario this 23rd day of August , 1990. C. Gordon Simmons Vice Chairperson Mr. Ed seymour Member Mr. Doug Montrose - Member