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HomeMy WebLinkAbout1992-1290.Chamaillard.93-09-21 -/'. .i - ONTARIO EMPLOYES DE LA COURONNE CROWN EMPLOYEES DEL 'ONTARIO ,t 1111 GRIEVANCE COMMISSION DE ^ "-, ~ - . G y\J" SETTLEMENT REGLEMENT ". "fJ"' BOARD DES GRIEFS N'~l'\ -. ~ 1fV' 180 DUNDAS STREET WEST SUITE 2100, TORONTO, ONTARIO, M5G lZ8 TELEPHONE/TELEPHONE. (416) 326-1388 180, RUE DUNDAS OUEST BUREAU 2100 TORONTO (ONTARIO) MSG lZ8 FACSIMILEITELECOPIE (416) 326-1396 1290/92 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN OPSEU (Chamaillard) Grievor - and - The Crown in Right of Ontario (Ministry of the Attorney General) Employer BEFORE: W Kaplan vice-Chairperson w Rannachan Member F Collict Member FOR THE K Whitaker UNION Counsel Ryder, Whitaker, Wright & Chapman Barristers & Solicitors FOR THE M Fleishman EMPLOYER Counsel Crown Law Office civil Ministry of the Attorney General HEARING July 27, 1993 I co 2 I Introduction By a grievance dated June 30, 1992, Nina Chamaillard grieves that she was dismissed without just cause from her position as a court reporter with the Ministry of the Attorney General at the Frontenac County Courthouse The grievance proceeded to a hearing in Toronto, at which time the employer raised a preliminary objection It was agreed by the parties that before hearing the merits of the case, the Board should decide the preliminary matter in dispute Before turning to the submissions of counsel, it is helpful to bnefly outline some of the facts The gnevor began work for the MInistry on August 21, 1990 She was classified at the OAG 6 level, and held the position of Freelance Court Reporter The grievor was dismissed from that position by letter dated June 15, 1992 The letter, which was introduced into evidence, reads as follows. This letter is to advise you that effective today, your court reporting services are no longer required by the Ministry of the Attorney General in the county of Frontenac Due to other commitments resulting from a recent dispute settlement, regular court reporting work is no longer available to you Notwithstanding this and more significantly, in the Breen et al hearing on June 1 Oth1992, you testified under oath that you removed documents from court files and provided them to a third party for use unrelated to your business or to the business of the Ministry As you yourself acknowledged, this is highly improper Had you been a civil servant, you would be facing severe disciplmary sanctions not excluding dismissal for what & -- ) 3 .t must be considered a serious breach of office secrecy and the unauthorized removal of court documents. The Employer's Obiection In brief, it was the employer's position that the grievor was not an "employee" within the meaning of section 1 (1 )(f) of the Crown Employees Collective Bargaining Act, (hereafter "the Act"), and she had no right to grieve her "dismissal" before the Board Accordingly, in the employer's view, the Board had no jurisdiction with respect to it. Moreover, the employer also took the position that the question of the grievor's employment status should be determined by the Ontario Public Service Labour Relations Tribunal (hereafter "the Tribunal"), and that it was the Board's practice in cases of this kind to refer these matters to the Tribunal for determination Employer Argument Employer counsel began his submissions by referring to section 40 of the Act. It provides: (1) If, in the course of bargaining for a collective agreement or during the period of operation of a collective agreement, a question arises as to whether a person is an employee, the question may be referred to the Tribunal and its decision thereon is final and binding for all purposes (2) If, in the course of bargaining for a collective agreement or during proceedings before a board of arbitration, a question arises as to whether a matter comes within the scope of collective bargaining under this Act, either party or the board of arbitration may refer the question to the Tribunal and its decision thereon is final and binding for all purposes 4 Employer counsel argued that both parts of this provision were directly applicable to the instant case, and he reviewed a number of authorities in support of this position beginning with a decision of the Divisional Court. In Her Maiesty the Queen in Right of Ontario v. OPSEU (Canning et al.) (1986), 14 O.A C.233, the Court reviewed a Board decIsion reclassifying some employees from the bargaining unit to management ranks In the course of its reasons for decision, the Court made the following observations In the Ontario Public Service, there is a distinction between bargaining unit employees and non-bargaining unit employees The distinction is sometimes referred to as a question of status. An unresolved dispute with respect to the status of a particular employee is determined by the Labour Relations Tnbunal established under the Act. Status is separate and apart from classification The board has jurisdiction to consider job classification but not status (at 234, emphasis not ours) Employer counsel argued that the Board in the instant case should defer the question of status to the Tribunal and observed that the Union had, In Cannings et aI., adopted thiS approach The union submitted that the issue before the board concerned classification alone, which was the only jurisdiction it had in the matter The issue of status, that is whether the employee comes within the bargaining unit or not, was not before the board and was not within its jurisdiction (at 235) Employer counsel also referred to Union Grievance 1257/86 (Barrett), ~. .. 5 I t where the employer raised a preliminary objection not unlike that raised in the instant case, namely, that the Collective Agreement did not apply because the jobs in dispute were not performed by "employees" within the definition of that term in the Act, and that the question of whether a person was or was not an employee should be determined by the Tribunal. In the course of its reasons for decision, the Board in Union Grievance reviewed a number of authorities including the Canning et al. decision, and another award of the Board, Lasani 147/84 (Delisle) In Lasani, the Board relied on the Canning et al. award, and held that " while one could argue that we might have the authority to decide this issue, see Re. C.I.L. and Allied [1972] 3 0 R. 63 (C.A.), such a matter should be reserved for the Labour Relations Tribunal" (at 1) The Board in Union Grievance concluded We agree that the Grievance Settlement Board does have concurrent jurisdiction with the Tribunal to determine the Issue of status if it arises within the framework of a grievance properly before it. However, the only real issue before us is the status of the jobs in question The resolution of this grievance depends entirely on that finding It is a necessary corollary of that finding that if the Jobs are properly within thiS bargaining unit they should have been posted. By grieving the absence of posting the Union is doing no more than raising the issue of status of those jobs There IS no individual grievance here, just a complaint that the jobs are really bargaining unit positions and therefore should have been posted When looking at the Crown Employees Collective Bargaining Act as a whole one has to assume that the framers of the legislation contemplated that questions of employee status would arise frequently, and accordingly a specialized Tribunal should be established to deal with that issue on an on-going basis 6 Because we have found that the status of these jobs is really the only issue in dispute in this grievance, we believe it should be referred to the Tribunal pursuant to section 40(2) of the Act, and we do so (at 7) ! Employer counsel urged the Board to make the same order in the instant , case, and also referred to the Coones 2311/90 (Stewart) award in support of this submission In Coones the union grieved the failure of the employer to deduct and remit union dues for certain employees. The employer objected to the Board's jurisdiction to hear the grievance, and took the position that the grievance raised the issue of status and that this issue was within the exclusive jurisdiction of the Tribunal The Board held We agree with Mr Steinberg that the Gnevance Settlement Board has concurrent jurisdiction with the Tribunal in connection with the matter raised in this grievance It is our view that the decision in Canadian Industries Limited, dealing with similar statutory language in a sImilar context, supports this conclusion The particular issue of the jurisdiction of the Tribunal in relation to the jurisdiction of the Grievance Settlement Board to determine an issue of status as it arises in this case Was not directly before the Divisional Court for determination in the Canning case The Canadian Industries Limited decision was not addressed in Canning We do not view the comments of the Court, reproduced above, dealing with the determination of the issue of status, as determinative of the issue of jurisdiction to deal with issues of status arising under the Crown Employees Collective Bargaining Act. However, notwithstanding our conclusion that the Grievance Settlement Board has jurisdiction to determine the issue of status in the context of this 8, 7 t gnevance, it is our view that it is appropriate that the matter be referred to the Tribunal for a determination of the issue of status. While there may be other issues in connection with this grievance, it appears that a determination of whether the maintenance fore person positions are managerial positions will resolve the dispute between the parties with respect to this aspect of the grievance Such a determination may not resolve the entire dispute between the parties with respect to senior security officers, however it will clearly narrow that dispute The referral of such matters to the Tribunal is In accordance with the practice of the Grievance Settlement Board, as indicated in the decisions referred to above Ther~ are sound policy reasons for maintaining a consistent approach to such matters. As this Board has stated on many occaSions, an established approach ought to be departed from only for the most compelling reasons Mr Steinberg referred to the delay in the resolution of the dispute that would result from the referral of this matter to the Tnbunal by the Board While any delay is unfortunate in labour relations matters, it is our view that there would be a greater undesirable effect arising from the uncertainty that would be created if the Board departed from its established practice in this instance The Issue before us was canvassed at some length by this Board by Vice-Chairperson Barrett in rUnion Grievance 1 Mr Steinberg argued that this decision does not specifically address the decision of the Court of Appeal in the C.I.L. case We cannot agree with this submission At p 6 of the Barrett decision the C.I.L. decision IS referred to and it IS apparent that it is relied upon in support of the conclusion on p 7 that the Grievance Settlement Board has jurisdiction to determine the issue of status If it arises in a grievance properly before It. In that case, however, after concluding that the essence of the issue in dispute was one of status, the Board decided that the matter ought to be referred to the Tribunal That decision suggests that section 40( 1) reflects the view of the Legislature that the Tribunal is a specialized body to 8 deal with issues of status and accordingly, it is preferable that matters of status be decided by the Tribunal Notwithstanding Mr Steinberg's submission to the contrary, it is our view that this is a reasonable inference (at 9-11) Accordingly, the Board in Coones referred the matter of the status of the positions to the Tnbunal Employer counsel did not take Issue with the Board's finding In Coones that it had concurrent jurisdiction to consider status with the Tribunal, and could exercise that jurisdiction where the issue of status arose in a grievance properly before it. Counsel pointed out that the cases were clear that where the only issue before the Board was status, then that determination should be made by the Tribunal Moreover, counsel also argued that where the determination of status could effectively deCide the matter in dispute, that determination should also be made by the Tribunal. Counsel took the position that Coones was an authority directly on point. In the instant case, counsel noted, if the Tribunal determined that the grievor was not an employee, her grievance would be effectively dismissed, thereby bringing all proceedings to an end Accordingly, counsel asked the Board to uphold the employer's preliminary objection and refer the gnevor's status to the Tribunal for determination Union Argument Union counsel made a number of arguments in support of his position that the Board should take jurisdiction with respect to this case Counsel I pointed out at the outset that it was extremely noteworthy that the employer was requesting the Board to refer the matter to the Tribunal but that it had not made its own application to the Tribunal requesting it to " 9 t hear and decide the grievor's status, although it was entitled to do so Counsel began his legal submissions by pointing out that the Board's jurisdiction is set out in section 19(1) of the Act, which provides Every collective agreement shall be deemed to provide that in the event the parties are unable to effect a settlement of their 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 ~nd its decision is final and binding upon the parties and the employees covered by the agreement. In counsel's view, the Board was fully empowered to hear this case given that its mandate included the determination of any question as to whether a matter was arbitrable Very simply, in counsel's View, the board could and should take jurisdiction over issues such as status where it was necessary to determine them to deal with the substance and merits of a grievance Moreover, counsel argued that the cases were clear that the Board exercised concurrent jurisdiction with the Tribunal to determine status, and he suggested that this was an appropriate case for the Board to exercise its jurisdIction to do so Union counsel noted that section 40 (2) of the Act did not reqUire the Board to refer a question of status to the Tribunal, all this provision did was provide a mechanism to resoive status issues that arose in the "course of bargaining for a collective agreement" or during proceedings before a "board of arbitration " Counsel submitted that section 40(2) was not mandatory, 10 and also questioned whether the "board of arbitration" referred to in the provision was the Grievance Settlement Board, or an interest arbitration board established pursuant to sections 10, 11, 1 2, 1 3 and 14 of the Act. Counsel suggested that the Grievance Settlement Board was not the same as the "board of arbitration" referred to in section 40(2) In support of this position, reference was made to the Board's decision In Bousquet 541/90 (Gorsky), where in the course of its long and detailed decision the Board stated Counsel for the parties differed in their interpretation of the junsdictional limitations imposed on the Board by the provisions of s 18(1) of the Act immediately above quoted The meaning of the word "board" in s 18(1) was considered by the Board in Dickie. 314/85 (Palmer) In that case, the Board was dealing with a grievance which alleged the improper denial of a merit increase The majority of the Board, after setting out the provisions of article 1 8( 1) of the Act, stated at pp 5-6 Clearly, the foregoing indicates that the "merit system" is something which is an "exclusive funct~on of the employer to manage " Further, the final words of that section appear dispositive of the present matter, i e., that "such matters will not be the subject of collective bargaining nor come Within the jurisdiction of a board." In this regard, reference must [be] had to Section 1 (1 )(c), which clearly indicates that the word "board" covers the present board of arbitration which is established pursuant to this Act. Obviously, the request of the Union asks us to determine the way in which the Employer has managed the merit system which is established This, in our opinion is something we cannot do All the rights the Union has with respect to this system is to have the ability to review "the governing " 1 1 t principles" of the plan with the Employer While is is true that the Grievance Settlement Board is "a board of arbitration established under this Act," in context, we conclude that in using the word "board" in article 1 8( 1), the intention was to refer to the "board of arbitration" referred to in s 11 (1) of the Act. (at 53) Applying this analysis to the instant case, counsel argued that the Grievance Settlement Board was distinct from the "board of arbitration" referred to in section 40(2), and counsel questioned the authority of the Board to refer status questions to the Tribunal Counsel suggested that when section 40 was read in context it was clear that it was meant to cover status issues that arose during bargaining or during an interest arbitration where the parties had failed to reach a collective agreement. In counsel's view, the provision arguably did not apply where the question of status arose as part of a grievance properly before the Board Counsel argued that the Board should decline to refer the Issue to the Tribunal on this basis alone Counsel also argued, however, that even if the Board had the jurisdiction to refer status questions to the Tribunal, in the instant case it should exercise its discretion and decline to do so Counsel distinguished the Canning et al. award, pOinting out that the question in that case was the authority of the Board to reclassify employees, and that that case had nothing to do with the Board's jurisdiction to determine status Counsel argued that the DiVISional Court's conclusions regarding status were obiter, and he urged the Board not to give them any weight. Union counsel also distingUished the other cases relied on by the employer He noted that Lasani raised a completely different issue and suggested that I 12 I the Board in that case may have relied too heavily on the Divisional Court's obiter in Canning et al Counsel observed that the determination of status in Lasani and in the Umon Grievance would also determine, one way or another, the entire matter in dispute, while in the instant case, the determination of status might have that result, although it might not. Counsel pointed out that if it were determined that the grievor was an employee, the Board would then be charged with hearing her gnevance, which raised serious issues of performance, misconduct, discharge and . remedy, all of which were directly within its jurisdiction Unlike the cases relied on by the employer, status was not the issue in dispute Counsel argued it was one of a number of issues in question. Moreover, counsel took the position that referring the case to the Tribunal would likely result in a delay, and would result, assuming that the Tribunal determined that the grievor was an employee, in the relitigation before the Board, followmg this determination, of many of the same facts and issues in dispute. That, counsel suggested, did not make any sense For all of these reasons, counsel urged the Board to exercise its jurisdiction and hear all aspects of the case Employer Reply In reply, employer counsel argued that the Board could refer the matter pursuant to either section 40(1) or 40(2) In counsel's submission, simply because section 40(1) did not specifically empower the Board to refer status questions to the Tribunal did not mean that it did not 'have the right to do so Counsel argued that that provision allowed a status question to be referred to the Tribunal at any time dunng the period of operation of a collective agreement. As the provision did not limit a reference to the Tribunal to the parties, or to anyone for that matter, counsel argued that it . 13 t was fully within the power of the Board to refer the status issue in this case to the Tribunal And counsel argued that the Board was specifically empowered to refer status questions under subsection (2) In that regard, employer counsel also urged the Board to follow the reasoning in the Dickie case in preference to that found in Bousquet, and argued that a "board of arbitration" as well as the "Grievance Settlement Board" were defined in section 1 of the Act, and that being the case, the Grievance Settlement Board was also empowered, pursuant to section 40(2), to refer a status issue to the Tribunal. Counsel pointed out that successive decisions of the Board have recognized that the Tribunal is an expert body, and its expertise includes the determination of employee status Accordingly, in his view, the Board should defer to that Tribunal where a question of status arose, as that Tribunal was clearly the appropriate body for its determination Employer counsel requested, assuming the Board took Jurisdiction over this case, that it hear the evidence and argument with respect to the grievor's status before hearing evidence and argument with respect to her dismissal In counsel's VIew, it would not make much sense to have a lengthy hearing on the merits only to conclude at its completion that the grievor was not an employee within the meaning of the Act. Decision Having carefully considered the submissions of the parties, we have come to the conclusion that the employer's preliminary objection should be dismissed ... . 14 It is well established in the jurisprudence that the Board may refer a question of status to the Tribunal for determination While we would not go so far as to conclude from the few cases where this has occurred (and counsel for both parties advised the Board that the three cases before us and referred to in this decision were the only relevant cases of which they were aware) that the Board has "an established practice" of doing so, we can see the benefits of our doing so where the determination of status will also determine the merits of the matter In the Union Grievance award the Board referred the matter to the Tribunal pursuant to section 40(2) In the Coones case, the Board referred the matter to the Tribunal pursuant to section 40( 1 ) The Lasani decisIon does not refer to any statutory provision In our view, the Board has the junsdiction to refer a status issue to the Tribunal pursuant to section 40(1) We are in complete agreement with employer counsel that this provision is not restrictive, and only requires that the issue arise during the operation of a collective agreement. That precondition is clearly in place in the instant case, and had we decided to refer the matter to the Tribunal we would have done so on this basis, and also pursuant to our power, set out in section 20(8) of the Act, to determine our own practice and procedure It is worth observing that we cannot find, upon a careful reading of section 40(2) in the context of the Act as a whole, that the "board of arbitration" referred to the rem is the same body as the "Grievance Settlement Board" referred to in section 20 of the Act. ~, ~ , 15 t Sections 1 0 through 14 of the Act refer specifically to boards of [interest] arbitration established following the failure of collective bargaining In this context, it makes sense, under section 40(2), for either the parties or the board of [interest] arbitration itself, to refer a status question to the Tribunal These questions are most likely to arise during the course of collective bargaining or during an interest arbitration, and the Act has established a convenient mechanism for their determination In the instant case, we find that while the determination of status by the Tribunal might end the matter by precluding the necessity of reviewing the merits, it might not. The issue of status is arguably intertwmed with the merits, and it is implicated to a much greater extent than in any of the other cases In which this issue has previously been addressed A referral to the Tribunal in this case would constitute an unnecessary division of ~ decision-making, and, assuming that the grievor was found to be an employee, result in conSiderable delay in the determination of her grievance and in that way defeat one of the important purposes of arbitration Moreover, given our jurisdiction in section 19, we consider it appropriate to take jurisdiction with respect to all aspects of a case including whether It is arbitrable Obviously, the determination of the gnevor's status is fundamental to that assessment. It is worth noting, if only in passing, that there appears to be little doubt but that the observations of the Divisional Court in Canning et al set out above were obiter, and that the Board does have the Jurisdiction If It wishes to exerCise it to hear and deCide status questions in the context of a grievance otherwIse properly before It. Our finding, in this regard, also finds support in the Court of Appeal's deCision in C.I.L. (1972) 30 R. 63 ~ ~ 16 Having decided to take jurisdiction with respect to this case, it is appropriate to set out the procedure to be followed. Having carefully considered the employer's request, and the union's submissions on point, we are satisfied that this is an appropriate case to bifurcate the proceedings and hear evidence and argument first on the status issue, or, put another way, whether the gnevance is arbitrable Having heard and decided that matter, we may then, depending on the outcome, hear the merits of the matter~in dispute Given the discharge letter, and the reasons set out therein, we are of the view that this case can be conveniently split in the manner just described, and that there IS no prejudIce to the union or grievor in doing so The case will reconvene on a date or dates to be set by the Registrar DATED at Toronto this 21st day of September, 1993 ; I' ! 1_____- Fit .' v , ( ----------- William Kaplan V~ha~ ./;if ~aL_~ - - W Rannachan Member ~~J F Col. Member 6.