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HomeMy WebLinkAbout1992-3155.Howe,Dalton,Loach.95-03-15 '1. .. l~~t\' :~..-;~~ ~ ""i' "-'w 1;;ild I .". ( ~"'{:- "~tj:r ',t)J , t fr>~ . + ONTARIO EMPLOYES DE LA COURONNE lW;1t:>" ; ',,' 'I~ " . CROWN EMPLOYEES DE L'ONTARIO ~ . ','1i""'i\:', '. ",~~.'r~rI!IfII GRIEVANCE COMMISSION DE 11111 SETTLEMENT REGLEMENT " BOARD DES GRIEFS 180 DUNDAS STREET WEST; SUITE 2] 00, TORONTO ON M5G 1 Z8 TELEPHONE/TELEPHONE (416) 326-1388 180, RUE DUNDAS OUEST, BUR.EAU 2100, TORONTO (ON) M5G 1Z8 FACSIM/LE/TELECOPIE (416) 326-1396 ~~~':1lv RECEIVED GSB# 3155/92, 643/93, 656/93, 2168/93 MAR 1 6 1995 OPSEU# 93A242, 930868, 93D869, 930905, 94A038 . PUBLIC SERVICE IN THE HATTER OF AN ARBITRATION l APPEAL BOARDS Under ~ THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before , s< THE GRIEVANCE SETTLEMENT BOARD BETWEEN OPSEU (Howe/Dalton/Loach) Grievor - and - The Crown in Right of ontario (Ministry of Correctional Services) Employer BEFORE: N. Dissanayake Vice-Chairperson T. Browes-Bugden Member . M. Milich Member FOR THE B. Symes GRIEVOR Counsel Scott & Aylen Barristers & Solicitors FOR THE L. Marvy EMPLOYER Counsel Legal Services Branch Management Board Secretariat HEARING January 5, 6, 1995 .. .- 2 . , DECISION This decision deals with a motion brought by the employer for reconsideration of a previous interim decision of the Board dated October 11, 1994. The following background forms the basis for this motion. I I , ! I ~, The Board was seized wi th five individu~l grievances filed by three female grievors. In the interim decision (with ". I,., the employer member dissenting) at pp. 3-4 the Board set out I I , the nature of the dispute before it as follows: I, No evidence was called at this stage of 'the proceeding. Union counsel set out the foregoing factual background in very general terms, and informed the Board that the union will be taking the position that as a direct result of the conduct of Mr. Erickson and Mr. O'Donnell, both of whom are members of management, a poisoned environment has been created at the Haileybury jail. It is alleged that the employer contributed to the continuation of the poisoned environment by failing to take appropriate action in response to the grievors' complaints. In these grievances the union contend~ I that the investigations conducted, as well as the action taken in response to the investigation resul ts were so inadequate that the employer has thereby failed to comply with its obligations under article A and/or article 27.10 of the collective agreement. The parties mutually requested the Board to rule upon a dispute between them as to the scope of the Board's remedial jurisdiction in the event the grievances are upheld. The Board was advised that the union will be seeking, inter alia, a direction that the employer take specific action against Mr. Er ickson and Mr O'Donnell, namely, that they be transferred or discharged. The issue between the parties was whether the Board had the jurisdiction to make such a remedial order. Employer counsel assured the Board that Mr. Erickson and Mr. O'Donnell received notice of this proceeding and that both had indicated that they did not wish to I j 'I I J~ ( i, I 3 participate in the hear ing on the issue of the Board's remedial jurisdiction However, the parties felt that it was necessary to obtain a ruling from the Board on this issue prior to hearing the merits of the grievances, so that Mr. Erickson and Mr. O'Donnell would be able to make an informed decision whether to participate in the hearing with their own counsel as affected third parties. The Board having agreed to the parties' -, r request, the issue to be determined was framed as follows: , Does the Grievance Settlement Board have ".'" ". '- jurisdiction to direct the employer to take any specific disciplinary action against a member of management, as a remedy in a sexual harassment /discriminatlon grievance? The Board's decision is summarized at pp. 22-23 as follows: To summarize then our decision flowing from all of the foregoing, we find that, if based on all of the evidence the Board concludes that it is ~ absolutely necessary to direct the employer to ~ake specific disciplinary action against a member of management, in order to remedy a grievance, it has the jurisdiction to do so. Because such an order is absolutely necessary, it is remedial in nature, and within the Board's jurisdiction. The fact that such an order may have the incidental result of penalizing the member of management, and of encroaching into areas reserved to the employer as exclusive management rights, does not mean that the Board must decline to exercise its authority to remedy a violation of the collective agreement found to exist. The other side of the coin is that if the Board is satisfied that other remedial orders can reasonably be expected to provide full redress, the direction of specific discipline takes the flavour of a punitive direction which will be beyond the jurisdiction of the Board. Then it is also an unauthorized usurpation on the part of the Board of the management's exclusive functions. . ~ 4 . . . Having regard to the reasons the parties sought a ruling on this issue, the short answer is that the Board has jurisdiction to direct the removal of a harasser through a transfer or discharge, if the Board concludes on the basis of the evidence that the particular order sought is absolutely necessary to finally and effectively remedy these grievances. At the hearing that led to the foregoing interim decision, the employer counsel was Ms. Anna Gulbinski. At the , hearing into the merits, Mr. Leonard Marvy ("employer counsel") replaced her. The hearing into the merits commenced I , on October 14, 1994 and was continued on October 27, 1994. At the commencement of the next hearing day November 15, 1994, employer counsel made the present motion that the Board should reconsider its interim decision dated October 11, 1994 and rehear arguments on the issue. I ! Employer counsel submitted that the Board should permit him to re-argue the issue that was the subject of the interim decision, because in his opinion relevant legislative provisions which had a bearing on the extent of the Board's remedial jurisdiction had not been brought to the attention of I I the Board. Counsel contended that at the previous hearing relevant provisions in the regulations under the Public Service Act had not been brought to the attention of the Board. More importantly, he submitted that his predecessor counsel had made her submissions on the basis of the Crown ., 5 Employees Collective Bargaining Act ("the old Act") It was his view that these grievances, which were filed between November 26, 1992 and April 19, 1993, ought to have been governed by Bill 117, ("the new Act"), which received Royal Assent on January 19, 1994. Counsel submitted that the Board should take the unusual action of rehearing the jurisdiction issue in these circumstances, where the Board had not had the ~ benefit of legal arguments based on applicable legislation , which had a direct impact on the very issue the Board was called upon to decide. Once employer counsel made this motion, the parties agreed that the Board should hear submissions on the motion and make a ruling, while the hearing into the merits (which the parties estimate will require about 30 hearing days) continued. At the hearing convened on January 5 and 6, 1995, . the parties made extensive submissions on a number of complex issues. Counsel gave their interpretations of the transition provisions of Bill 117 and whether that Act or the old Act applied to these grievances. If the Board concludes that the old statute governed, the parties disagreed as to whether or not the Board was functus officio with regard to the remedial jurisdiction issue it had determined in its interim decision. If the Board concluded that Bill 117 applied, the parties disagreed as to the effect of that legislation on the Board's remedial jurisdiction. While employer counsel took the . 6 position that Bill 117 would have led the Board to a different conclusion from the one it made in its interim decision, counsel for the union submitted that the new legislation would not have made any difference because in her view that legislation, in fact conferred on the Board broader remedial jurisdiction than under the old Act. The parties argued about whether the Board had jurisdiction to reconsider or revoke its decisions under either the old or new legislation. Finally, ". - the parties made submissions on policy considerations and whether in the particular circumstances, the Board ought to exercise its discretion to reconsider its decision and rehear arguments, even if it had jurisdiction to do so under the applicable legislation. i I , It must be emphasized that the issue in dispute was agreed upon by the parties and a specific question was put to I~ the Board. The particular proceeding was akin to a stated I I case. Both parties requested that the Board determine an agreed upon question prior to commencing the hearing on its merits. The Board provided full opportunity to both parties to make submissions on the issue in dispute and determined the very question put to it, in its decision dated October 11, 1994. Of utmost significance is the fact that both Bill 117 and the regulations under the Public Service Act, now relied on by 7 the present employer counsel, were in existence in the present form at the time of the original hearing. Thus it was open for the then employer counsel at that hearing to have made the same arguments that employer counsel now seeks to make. Even though employer counsel attempted to couch his request in a different light, he is in effect stating that the previous ~ employer counsel failed to make certain legal arguments that I could have been made. He now wishes to have a second ". opportunity to try a different argument in the hope of persuading the Board to accept the employer's position. In our view, we need not determine any of the legal disputes raised by the parties as to which statute, the old Crown EmQloyees Collective Baraainina Act or the new Bill 117, applied to these grievances or whether the Board has the power to reconsider its decisions under either statute. If such a power existed under the applicable statute, there can be no doubt that it would be a discretionary power. We are of the view, that even if we had the power to reconsider our previous award and rehear submissions on the issue this is simply not an appropirate case to do so. It is of paramount importance from a policy point of view that the Board's decisions have finality Indeed this is mandated by the Board's constituent legislation. The decision dated October 11, 1994, even though determining an interim issue, was a final decision on that issue. The parties put a specific issue before the Board and . il , I 8 the Board fully answered the issue and there was nothing left to be done on that issue. To permit employer counsel during I I I the hearing into the merits to re-argue the very same issue because upon review he has concluded that there were other legal arguments which could have persuaded the Board, would seriously erode the finality of the Board's decisions. I Employer counsel relied on Chandler v. Alberta Assn. of Architects, (1989) 62 D.L.R. (4th) 577 (s.c. c.), where sopinka J. advocated a more flexible and less formalistic approach in applying the doctrine of "Functus Officio" in proceedings before administrative tribunals. Co~nsel submitted that the employer may face serious prejudice if the Board refused to reopen the case, because the Board's decision dated October 11, 1.994, which in his view was made without considering relevant legislative provisions, would stand as a precedent in other hearings before the Board. He pointed out that the employer was not in a position to judicially review the Board decision, because as a policy the Divisional Court refuses to entertain applications for judicial review of interim decisions relating to remedial jurisdiction, unless and until the Board in fact had exercised the jurisdiction. , I I I We do not see prejudice as a compelling reason to exercise our reconsideration power, assuming such a power I I , ~ . . . 9 exists. At p. 596 of the Chandler decision Sopinka J. observed as follows: To this extent, the principle of functus officio applies It is based, however, on the policy ground which favours finality of proceedings rather than the rule which was developed with respect to formal judgments of a court whose decision was subject to a full appeal. For this reason I am of the opinion that its application must be more flexible and less formalistic in respect to the decisions of administrative tribunals which are subject to appeal only on a point of law. Justice may require the reopening of , administrative proceedings in order to provide relief which would otherwise be available on appeal. It is apparent that Mr. Justice Sopinka's concern about strictly applying the doctrine of "Functus Officio" is the absence of a right of appeal from most administrative tribunal decisions, except on a point of law. This concern does not arise in our case because the Board's interim decision was . solely concerned with a point of law, namely the extent of the Board's remedial jurisdiction. That would be clearly an issue which is subject to judicial review. Therefore we find that we are functus officio with regard to the issue that was determined. If at the end of the proceeding the Board exercises the remedial jurisdiction it found to exist, the employer would then be in a position to have that decision reviewed by the courts. If on the other hand there is no exercise of that jurisdiction by the Board, either because the grievances fail II I .. . ~ ~. . 10 or because the Board finds that such a remedy was inappropriate in the particular circumstances, the employer would suffer no prejudice. The employer would not face any practical consequences from the Board's interim decision, as far as this particular case is concerned. In any future case it would be open for the employer at that time to make any new legal submissions it deems appropriate. If our interim r i I decision had not considered those legal arguments, the panel I ". I hearing the particular case would be obliged to consider the merits of the legal arguments presented to it. II I For the foregoing reasons it is our finding that, even if we had the power to reconsider and revoke our decision dated October 11, 1994, in the particular circumstances of this case , , we ought not to use our discretion to exercise that power. I -- Therefore, the employer's motion fails. 1 I , I Dated this 15th day of March 1995 at Hamilton, Ontario I 1 /r~-cr3~ I , ,,' I' N.Dissanayake ! ~~rs T.Browes-Bug Member Ah:l'JtuCX M. Milich Member I