HomeMy WebLinkAbout1990-0849.Wright.91-02-13
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.~-:- -- 1'-",' ONTARIO EMPLOYÉS DE LA COURONNE
... CROWN EMPLOYEES DEL 'ONTARIO
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1111 SETTLEMENT REGLEMENT
BOARD DES GRIEFS
180 DUNDAS STREET WEST, SUITE 2100, TORONTO, ONTARIO, M5G lZ8 TELEPHONE /TELÈPHONE: (416) 326- ¡ J88
1/10, RUE DUNDAS OUEST, BUREAU 2100, TOF/ONTO (ONTAF/JO), MSG TZ8 FACSrMILEIT£LECOPIE: (416) 326- 1396
849/90
IN THE MATTER OF AN ARBITRATION
Under
THE' CROWN EMPLOYEES COLLECTIVE BARGAINING ACT
Before
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THE GRIEVANCE SETTLEMENT BOARD
BETWEEN OPSEU (Wright)
Grievor
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The Crown in Right of Ontario
(Ministry ,of Health)
Employer
BEFORE: R. Verity vice-Chairperson
J. Carruthers Member
D. Montrose Member
FOR THE L. Rothstein
GRIEVOR Counsel
Gowling, Strathy & Henderson
Barristers & Solicitors
FOR THE D. Daniels
EMPLOYER Counsel
'Mathews, Dinsdale. & Clark
Barristers & Solicitors
HEARING: November ,15, 1990
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DEe I S ION
Michael Wright is a Driver Attendant employed by the
District of Halton and Mississauga Ambulance Service Ltd. In a
grievance dated Apr1l 24, 1990 he alleged discipline without just
cause following the receipt of a written reprimand on April 17.
At the outset of the hearing, the Employer raised a
preliminary 9bjection that the Grievance Settlement Board was
without jurisdiction to determine this grievance on its merits in
the absence of a Collective Agreement betwèen the parties and
without a grievance procedure in effect. The 'Union maintained
that the Board had the necessary jurisdiction. The parties
agreed that the preliminary objection must be resolved prior to a
hearing on thè merits of the grievance.
The following facts are material by way of background
information. OPSEU has bargaining 'rights for some 21 privately
operated ambulance services in Ontario, including "Halton and
Mississauga Ambulance Service". Some time ago, OPSEU applied to
the Ontario Public Service Labour Relations Tribunal under
s.40(1) of the Crown Rmployees Q911ective Ré\rl'!ainimt Act to
determine whether ambulance attendants employed by McKechnie
Ambulance Service Inc. (a privately held ambulance service) are
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employees within the meaning of the Crown F.ml>loyees Collective
Ðari!aip.in~ AG..t. In that matter, the issue of employee status
turned on the determination of whether "McKechnie Ambulance" is a
Crown Agency. In a decision dated November 30, 1989, No. T/5B/B4
(P. C. Picher) , the tribunal concluded that "McKechnie Ambulance
is a Crown Agent and accordingly that its employees are Crown
employees within the meaning of s.l(e) of the Public Service Act
and s. 1 ( 1 )( f ) of the Cro~n R~lovee~ Collective Bar1taining Act.
Subsequently, the Picher rationale was followed in a second
tribunal decision dated March 19, 1990, No. T/48/89 (Stanley) ,
involving OPSEU, the Ministry of Health and Owen Sound Emergency
Services Inc. (a privately held ambulance service) .
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Shortly thereafter, the Ontario Government responded to
the tribunal's jurisprudence by passing Regulation 181/90 (made
April 10. 1990 and filed April 12, 1990) . The effect of the
regulation was that for the purposes of s.1(2) of the Crown
~~Dlovees Collective Hargainin~ Act, the Government desi~nated as
Crown Agents all 21 privately owned ambulance services where
OPSEU has bargaining rights.
With that brief factual background, the agreed upon
facts of the matter before us are as follows:
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1. Michael Wright is a Driver Attendant employed by
the District of Halton and Mississauga Ambulance Service Ltd. On
April 24, 1990, he filed a grievance alleging'discipline without
just cause.
2. Since approximately 1975~ OPSEU and the District of
Halton and Mississauga Ambulance Service Ltd. have entered into a
number of collective agreement:s under the Ontario T/aQour
Relations Act.
3. The most recent Collective Agreement between the
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parties was signed July 14, 1989 for a term from April 1, 1988 to
and including March 31, 1990. Timely notice to bargain was given
by OPSEU and collective bargaining had commenced prior to the
expiry of the Collective Agreement.
4. On April 10, 1990, the Ontario Government passed
Regulation 181/90 whereby Halton and Mississauga Ambulance
Service was designated a Crown Agent pursuant to 8.1(2) of the
Crown F.mplovees Collective Bar~aining Act.
5. On April 11, 1990, the Ministry of Health issued a
news rèlease confirming that Halton and Mississauga Ambulance,
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among otherst were Crown Agents for the purposes of collective
bargaining. .,..
6. Prior to April lOt 1990t the Union took the
position that Halton and Hississauga Ambulance and others listed
in Regulation 181/90 were Crown Agents and that their employees
were Crown Employees.
7. Prior to April lOt 1990 the Crown had not agreed
with the Unionts posit~on.
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8. At no time has the Ontario Public Service Labour '
Relations Tribunal rendered a decision in which it has determined
that this Employer is a Crown Agent~
9. Nothing changed in the management or operation of
the Halton arid Mississauga Ambulance Servicet relevant to a
determination of whether or not it was a Crown Agent, between
March 31t 1990 (the expiry date of the Collective Agreement) and
April lOt 1990 (the date the Regulation made it a Crown Agent).
10. Subsequent to April lit 1990, notice to bargain
has been given by the Union under Crown Y.mploveeaCol1ective
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Bargaining Act. The parties are currently involved In collective
bargaining although there has as yet. been no agreement reached.
11. Mr. Wright's grievance was processe,d In a manner
provided for under the expired Collective Agreement and no
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objection was taken to the manner of processing the gr:;..evance.
No jurisdictional issue was raised prior to the nre-nearing'~of
this matter.
The Panel was referred to the following provisions of
the Crown F.mployees Collective Bar~aininJ:! Act:
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s.l (l)(d) "collective a¡:;reement" means an agreement
In writing between the employer and an employee
organization covering terms and conditions of
employment.
s.l (1 )(h) If employer " means the Crown in ri~ht of
Ontario.
s .1 (lH2) The .employer may be represent.ed. in the
case of the' publ ic service, by the Management Board of
Cabinet, and in the case of an agency of the Crown, by
the body designated by the regulations.
18. (l) Every collective agreement shall be deemed to
provide that it .LS the exclusive function of the
employer to manage, which function, without limiting
the generality of the foregoing, includes the right to
determine,
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(a) employment, appointment, complement,
organizationt assignmentt discipline, I
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 governinf(
principles of which are subject to review by
the employer with the barl'tsining a~ent,
and such matters will not be the subject of collective
bargaining nor come within the jurisdiction of a board.
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( 2 ) ,In addition to any other rights of grievance
under a collective' agreement, an emplòyee claiming,
(a) that his position has been improperly
classified;
(b) that he has been appraised contrary to the
.'. - ~ governing principles and standards; or
(c) t ha t 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 section 19. R.S.O. 1980, c. 108, s.18.
19. (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 he referred for
arbitration to the Grievance Settlement Board and the
Board afte~ giving full opportunity to the parties to
present their evidence and to make their submissions,
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shall decide the matter and its decision is final and
binding upon the parties and the e~ployees 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 (II) and (12) read:
(11 ) A board has all the powers of the Tribunal,
(a) to summon and enforce the attendance of
witnesses and ~o compel them to give oral or
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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
interrogate any person respecting any such
thing or any of such differences; and
(b) authorize any person to do anything that the
board may'do under 'clause (a) and to report
thereon to the board. R.S.O. 1980, c. 108,
.. s. 11.
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In support of its submission that the expired
collective agreement continues by operation of law, the Union
referred the Board to s.79(1) of the Labour Re 1 at i 9ns Acj:, and
s.23(2) of the Crown F,w~loyees Collectiv~ ~aI~aipin~ Act~
s.79(1) of the Labour Re1atiQJ)R Act reads:
79 ( 1 ) Where notice has been given under section 14
or section 53 and no collective a~reement is in
operation, no employer shall, except with the "consent
of the trade union, alter the rate~ of wages or any
other term or condition of employment or any right,
privilege or duty, of the employer, the trade union or
the employees, and no trade union shall, except with
the consent of the employer, alter any-term or,
condition of employment or any right, privilege or duty
of the employer, the trade union or the employees,
(a) until the Minister has appointed a
conciliation officer or a mediator under this
Act, and,
( i) seven days have elapsed after the
Minister has released to the parties the
report of a con~iliation board or mediator,
or
'(ii) fourteen days have elapsed after the
Minister has released to the parties a notice
that he does not consider it advisable to
appoint a conciliation board,
or as the case may be; or
(b) until the right of the trade union to
represent the employees has been terminated,
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whichever occurs first.
s. 23(2) of the Crown R~þ1oyeeß Çpl1ective Bargainiv~
kt reads:
23. , (2) Where notice has been given by either party
to a collective agreement under section 22, except as
altered by an agreement in writing of the parties, the
terms and provisions of the agreement then in operation
shall continue to operate until a new agreement entered
into pursuant to the provisions of this Act is in
operation. R.S.O. 1980, c. 108, s. 23.
The Employer adopts the position that s.18(2) of the
Crown F.JI\.Pl oyees ,Co 11 e.,Çti ve Rar~S\iniÍu~ Act does not confer
jurisdiction on the Board in the absence of a Collective
Agreement as contemplated by ss. 14, 15. 16. 17, 18 and 19 of the
kt. The Employer's challenge appears to be based on the
definition of "employer" in the ~ as meaning the Crown in right
of Ontario. Mr. Daniels argued that in the absence of an
existing Collective Agreement where the employer is the Crown in
right of Ontario, the Grievance Settlement Board is without
jurisdiction to determine this matter.
The Union contends that the right to grieve discipline
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under s.18(2)(c) is a statutory right independent of the
existence of a Collective Agreement. In the alternative, Ms.
Rothstein maintained that if the existence of a Collective
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Agreement was a pre-requisite to jurisdiction then the expired
Collective Agreement is continued by operation of law under
s.79(1) of the T.aboQ,l:: Relfl.tíoo.s Act until April 10 t 11 or 12,
1990 and thereafter by 8.23(2) of the Cl::Qwn F~Dloyees ColJective
ÐA.rj!A.inin~ Act. The Union referred the Board to the 'following
authorities: OPSRU ann Crown in ri~ht of Ontarjo (Ministry of
Health) ann McKechnie Ambula.nce ServiceH Tnc., T/58/84, (P. C.
Picher) ; OPS..FU àIl~t Crown in rillht Qf OntAri 0 LMipiHtry of Health)
and Owen Sound Rmergency &ervices Tnc., T/48/89, ( Stanley) ; ~
At~orney-General for Q.þtar'i 0 and Keeling et a 1. ( 1980) , 30 O.R.
(2d) 662 (Ont~ Div. ct. ) ; Ontario Public ~ervice KmoloyeeHijpion
v. Th~ Que~~ ip RigQt. of Ontario. et ~l~ (1982), 40 0.&. '(2d) 142
(Ont. Div. Ct. ) ; Re Ontario Public Servic~ Rmnloyees UniQn a~ò
Crown in ri~ht of Ontario et al. (1983), 44 O.R. (2d) 51 (Ont.
Div. Ct. ) ; OPSF.U (Horne} and The Crown in Ri~ht of Ont,arj,Q
(Metropolitan Toronto Convention Centre Corporatìop), 1880/99
(Simmons) ; He Ontario PUblic S~vice F~oloyee~ Union anò The
Queen in Bi~ht of Ont~rio et ~l. (1985), 51 O.R. (2d) 474 (Ont.
Div. Ct. ) ; and Onta.rio Publi.c Service F.Jl\P1Qvees. \JnJQn anò Carol
Rerry v. The Crown in Riuht of Ontario (Ministry of Communi tv anò
Soc i al Services) (1986), 15 O.A.C.15.
I Having carefully considered' the authorities adduced and
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the able submissions of the parties, it ~s apparent that we have
jurisdiction to hear and determine the merits of this grievance.
As a general rule, the source of an arbitrator's
jurisdiction is found in the collective agreement between the
parties. However, the Grievance Settlement Board 1S a statutory
tribunal established under the Crown Employees Co 1 kç"tiYg
Bar~ainin~ Act to determine any differences between the parties
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which fall within the purview of the A..c..t and to deal -with
grievances under whatever collective agreement may have been 1I~
f 0 rc e between the Employer and the Union. In R~_Qn,t...ª :;::,i-º___ .hlbLLç
Service Employees Union and the CrQw~_Rißht of On.t.auo__e_t,_ a..!..,.
( 1985) , supra, the Ontario Divisional Court held thai:. the 13.0 ard
has jurisdiction to determine a salary dispute where claims arose
under a collective agreement that had expired. In _lle__Qn..t.aJ:,.LQ
Public Service Emp] OY~es Union a~~O.JítL.i.n._.-R.i.gh:L~j;~-º-n.t.aJ::...i.o
et al. (1983), supra, the Ontario Divisional Court was called
upon to review a G.S.B. award ln a classification grievance where
the Board found that under both the ~_E,.Il:rp-'l..gY.ß~~<-!:;i.__Ç-ºl_J...e_ç..t.i v E!
Itargaining Act and the collective agreement it had no
jurisdiction to hear the grievance on its merits. In quashing
the Award, Mr. Justice Osler stated at p. 53:
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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 th~ extent
the Board based itself on the view that 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 pur~oses 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.
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In the instant matter, it cannot be said that the
employer's preliminary' objection is novel. The identical issue
on different facts was considered ~n OPSFU (Horne ì and Crown in
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~istht of Ontß.rio (M~t.opoli~~n ~orQnto Co~vention CeÞ~e
CorpQration) f supra ( Simmons) . In that matter involving a
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discharge grievance, the employer contended that the board was
without jurisdiction because there had never been a collective
agreement between the parties. Vice-Chair Simmons rejected that
argument on the basis that where it was established that the
grievor fell within the jurisdiction of the Crown RmplQvees
Collec.tive Har'E!&-iv.inlt Açt, then S. 18 ( 2 ) ( c ) provided a statutory
right to grieve discipline in addition to any right contained in
a collective agreement that may have been in existence.
In the matter before us, counsel for the Employer
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advanced no argument to suggest that the H,Q,rne de'2ision was
manifestly wrong or that there were special circumstances calling
for its modification. This panel adopts the -Simmons raT.iona..:..e in
the H.ill;:DJ;,~ decision.
In making Regulation 181/90 1.n April, 1990. the Ontario
Government conferred the status of Crown Agent upon a number of
private ambulance serV1.ces including "Halton and Mississauga
Ambulance Service". It follows, therefore, that employees of
this particular ambulance service, such as Mr. Wrigh"t, became
Crown Employees by 'operation of ' law within the meaning of ..
s.1(1)(f) of the Crown EmploYees Collecti VB. Bar~~ìn...iUlL_,""_ct and as
such were entitled to the protection of the AG..t. As a Crow'n
Employee, the right to grieve a disciplinary matter is a
statutory right under's.18(2)(c) which 1.S personalized to an
employee and which is independent of and " . addition to any
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other rights under a collective agreement" . S.18 of the Cxo!/'.D
Employees Collective BargainiruLAct 1.S a unique statutory
provis~on which confers upon employees untrammelled rights to
grieve under the provisions of s.18(2)(a), ( b ) and ( c ) . In those
circumstances, under s.19(1) of the AJ;J:. , the grievor has the
right to bring the. 'matter to arbitration with the concurrence of
the Union. See, for example. E. B 1 a~e_L_ª.L....J._AID..al~a,ma.t.~J:;i
.
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~J:l~<L-L~~QlilLiJl r i ~ h t 0 f 0 u.t.a~Lr.QLQ..nJ:.-º_, hJ:.ß.a
T..r:..an sit Ope rat iDJLA.l.lLh,Q..r:..Lt.Y...l 1276/87 ( Shime ) .
Mr. Justice Osler's words in QPj3.EU,_and__Th~_Çr:Qw.nin
Right o f O_n.t.aJ::i.Q (1983) merit repetition:
We have no doubt that 5.18(2) of the sta tu'te applies
notwithstanding the existence of the collective
agreement.
In our view, it is unnecessary to have a grievance
procedure'in effect in order to claim a statutory right. In
Ontario Public Service Emp'lo'lees Union v. 1he QQ~~U-Íli-Ri~ht ,Qf
Qn.tario et a1 . (1982) , supra, in the review of a classification
decision, Mr. Justice Callaghan stated at p. 145 of his Jud~ment;:
Where a right to grieve a particular matter is
specifically recognizeq by legislation it ou£!ht not to
be restricted absent a clear intention on the part '.J ï
the legislature to do so. ~.. -."
In the case before us, to deny a hea.ring on the merits
would be improper and contrary to the grievor's statutory right
to grieve discipline provided under s.18(Z}(c) of the Acl; .
Therefore. it 15 unnecessary to go on to determine whether the
combined effect of 5.79(1) of the ,L.-ª..bo ur Relatio'ns A_~t and s.23
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of the Crown Employees Collectiv~~~t extends the
operative effect of the expired Collective Agreement. For these
reasons, we find that the Panel has jurisdiction to proceed with
the merits. The Registrar is requested to establish the
necessary hearing dates.
DATED at Brant ford. Ontario. this 13th, day () f February
1991.
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