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HomeMy WebLinkAbout1992-3843.Stewart.95-06-22 /~ . ,; ONTARIO EMPLOYES DE LA COURONNE ~ CROWN EMPLOYEES DE L'ONTARIO 1111 GRIEVANCE COMMISSION DE SETTLEMENT REGLEMENT BOARD DES GRIEFS 180 DUNDAS STREET WEST, SUITE 2100, TORONTO ON M5G 1 Z8 TELEPHONE/TELEPHONE (416) 326-1388 180, RUE DUNDAS OUEST, BUREAU 2100, TORONTO (ON) M5G 1Z8 FACSIMILE/TELECOPIE (416) 326-1396 GSB # 3843/92 OPSEU # 93B366 IN THE MATTER OF AN ARBITRATION Onder THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN OPSEU (stewart) Grievor - and - The Crown in Right of ontario (Ministry of Government services) Employer BEFORE F. Briggs Vice-Chairperson FOR THE A Lokan GRIEVOR Counsel Gowling, Strathy & Henderson Barristers & Solicitors FOR THE D Costen EMPLOYER Counsel Legal Services Branch Management Board Secretariat HEARING June 13, 1995 ~~ II ~ Ii' . I ! \1 ~ This is an unusual case. The grievor, Robert Stewart, filed a grievance, dated January 26, 1993, which stated: Management Board recently issued a list of Religious HoUdays to be taken in addition to the mainstream Christian Holidays. The result of this directive is that I now have to work two days more to earn the same saJary as a co-worker who belongs to a proscribed minority religion. This constitutes Religious and financial discrimination and violates Article A of the CollectiVe Agreement, No Discrimination/Employment Equity The requested remedy was one of four possible options: (a) Two floating holidays per year to be taken at my discretion. (b) An increase in annual salary of two days pay (c) Legislated holidays with pay, any others without pay (d) Religious Minority employees to be required to work two of the following days (a) Christmas (b) Boxing Day (c) Good Friday (d) Easter Monday On October 7, 1991, Vice Chair Kaplan issued a decision Kimmel/Leaf & MUdstry of Gavemment Services (hereinafter referred to as the l'KimmelJLeaf decision"), that declared the employer had violated the collective agreement by failing to allow two Jewish employees paid leave for the observance of two religious high holidays. It was found that the Employer failed to exercise its discretion to grant leave under Article 55 - Special and Compassionate Leave, for this purpose. The Board ordered the employer to compensate the grievors for those holidays. Subsequent to this decision, the Employer issued a policy which set out listed various minority religions and their high holidays for the years 1991 to 1994. For the purposes of this hearing, it is sufficient it to say that the policy allows members of religious minorities to claim up to two special leave days for the celebration of their holidays. It is also sufficient to say that these days are requested and granted under Article 55 and are days off with pay as considered under that section of the collective agreement. 1 I : l I ~ - ----- I j ~ 1 2 The Union, in its opening comments stated that, while it did not endorse the policy in its entirety, the policy does not constitute "discrimination" as considered under Article A in the collective agreement. The Union reserved the right to object, if necessary to the details of the policy, but .agreed as a general proposition that the policy is in accordance with the decision of KimmeJ/Leaf As a preliminary matter, although it was argued at the same time as the merits, the Employer took the position that the board was without jurisdiction because there was uno difference between the parties" The grievor gave evidence and submissions on his own behalf. He was a municipal designer for the Ministry of GovemIrtent Services at the time of the filing of his grievance. He claims he is forced to work two more days than his religious minority co-workers for the same annual wage. This is a matter of money, Mr. Stewart explained, not religious holidays. He is receiving less salary than others which is neither fair nor equitable. , I Mr. Stewart suggested that he was in complete agreement with what he understood was I the Employer's position at the KimmeJ/Leaf hearing. He also testified that the Union is being run by "special interest groups" and it does not have it's l'finger on. the pulse of the rank and file memberl in the workplace. He maintained that the majority of his co-workers continue to be very annoyed that some people are receiving special treatment. He testified that the same issue was addressed by the City of Toronto and its Union. The ~ - ---.--.- r II ! ;' . I -! I 3 resolution apparently arrived at was that the members of religious minorities would work on two of the Christian holidays. Mr. Stewart stated that he was at a complete loss to understand why the Employer l'had done a complete reversal" on this matter He was of the view that he and his main stream I ! religious co-workers are the victims of reverse discrimination. He was aware of an earlier decision in Be Civil Service Commission and Nova Scotia Government Employees Union (August 10, 1989), 7 LAC. (4th) 257 (Outhouse), in which a similar grievance was dismissed, in part, because Ilft1e grievor would ultimately wind up being paid for three more holidays than would Christian employees" Mr Stewart suggested that I ought to follow the logic found therein. Mr. Lokan, for the Union, submitted that it was understandable that the gDevor was having difficulty with this issue. He is, at the very least, in the company of Arbitrator Outhouse. However, there is binding authority which supports the KimmeJ/Leaf decision. InRe Syndica1t de l'cmseignment de Champlajn et al. v. Commission scalaim regionale de Chambly; Commission des dmits de laperscmne du Quebec, Jntemmer Oune 23,1994), 115 D.L.R (4th), the Supreme Court of Canada decided that three Jewish teachers were entitled to be absent from work with pay on Yom Kippour. It is because of this decision and the decision in IimmeJ/Leaf that the Union is compelled to take the position that the collective agreement is not being violated. The Union further l -- --~-~ J I I " J 4 argued that Arbitrator Outhouse was wrong when he found that it would be reverse discrimination to find for the grievors. The Supreme Court of Canada addressed this issue at page 627 of Chambly (supra) wherein it was stated: The respondent school board contended that if the schedule of work fIXed by the calendar which forms part of the collective agreement had the effect of adversely discriminating against Jewish teachers, it had taken all necessary steps to make a reasonable accommodation for them. This, the employer argued, was accomplished by permitting them to take a day off work without pay in order to celebrate Yom Kippour The majority of the Court of Appeal agreed with this position and went so far as to state that to do more would constitute reverse discrimination by favouring Jewish teachers over those of the Catholic faith. With the greatest of respect, I cannot agree with the positions put forward either by the respondent or the majority of the Court of Appeal. And at page 630: Further, I cannot see how the payment of the day's wages in these circumstances could possibly constitute reverse discrimination. The Jewish teachers, in this case, seek no more than to use one of their three days of paid absence provided by the collectiVe agreement, under art. 5-14.02(g), to honour the tenets of their religion. The Union submitted that, notwithstanding significant efforts, it could not find a remedy that would be acceptable to the Employer, the Union and the grievor. Finally, Mr Lokan did not take a position on behalf of the Union regarding the Board's jurisdiction to determine this matter on the basis of the grievor not being a party to these proceedings. Mr. Costen, for the Employer, argued that the grievance is not a lldifference between the parties" because the grievor is not a party It was clear that the Union did not suggest that the grievance should be upheld. Neither did the Union submit that the Employer was treating the grievor in a discriminatozy manner. Therefore, in the instant matter, we are faced with a grievor with a complaint that is not endorsed by his Union. II !, I 5 The Employer argued that, according to the Crown EmplOJUS Collective BargajrUng Act a party is, lithe employee organization that is the bargaining agent for a bargaining unit, on the one hand, and the employer, on the other hand, and ''parties means the two of them; Cpartie", l'partiesl~" It is clear that there is no reference to an individual's right. There are other statutes that do refer specifically to the rights of individuals. In the instant matter, those rights are not expressly stated and, therefore, do not exist leaving this Board with no alternative but to dismiss the grievance. The Employer referred me to Be B1alce et a1 and Toronto Area Transit Operating 1b1thonty (May 3, 1988), Shime (unreported), wherein it was stated: Section 19 of the Crown Emplovees Collective Baroainino Act reflects the theoretical position that it is the union, and not the individual, that controls access to the arbitration process. For convenience, Section 19(1) provides as follows: 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 be reffered (sic) 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 I binding upon the parties and the employees covered by the agreement. I Thus it is apparent that the arbitration of disputes is to resolve "differences" between the · parties. Section 1 (1)(1<) of the Act defines a party as the employee organization and the employer - an indiVidual employee is not a party Thus, there is no specific extension of the employee's right to proceed to arbitration and it is only "the matter" that is entitled to proceed in accordance with the arbitration procedure in Section 19. The employee whne giVen the right to grieve is not specifically given the right to proceed to arbitration. I was also referred to Fung/Anand and Ministry of Revenue (September 3, 1991) Stewart (unreported) That Board stated, at page 17 I I r " . I 6 It is the parties to the Collective Agreement, the Union and the Employer, that determine whether there is a difference between them, which gives rise to the Board's jurisdiction to resolve that difference and hence the proceeding in which the position of another person may be affected. Once the parties determine that a difference between them no longer exists, there is nothing before the Board to be determined and the context in which the rights of an intervener arise no longer exists. In the alternative, the Employer argued that in the event that the Board considers the grievance on its merits, it must reject the submissions of the grievor The Board has already determined the issue in KimmeJJLe2( a decision which was consistent with the findings of the Supreme Court of Canada. To overturn the decision would not only be bad policy, but would be wrong. DECISION The Employer has argued that there is no difference between the parties and, therefore, I must dismiss the grievance. I agree. The parties to the collective agreement are the Union and the Employer. The grievor is not a party In the instant matter, the Union did not argue that there was a difference between it and the Employer Granted, there was some suggestion that a related issue might arise at some point as a matter in dispute between the parties relating to the Employer's policy The Union is not generally at odds with the Employer about the policy This is not at all surprising given that the policy was drafted as a direct result of the li:mmeJ/Leaf decision. In the absence of a difference between the parties I am without jurisdiction to determine this matter. - - -.-..--- II ~' I J ',' 7 Even if I were wrong with respect to the matter of my jurisdiction, I would not uphold the grievances for the reasons put forward by the Employer. Labour Relations between the i , , parties would be put into chaos if the Grievance Settlement Board routinely overturned earlier decisions of the Board. There must be some blueprint for the parties to follow in their ongoing relationship. If this Board were to second guess the KimmeJ/Leaf or any II I' , other like decision, the parties would forever be inclined to re-litigate matters until they got the answer they want. The lack of consistency could threaten the foundations of the parties' ongoing labour relations. Further, I would have dismissed the grievance because I completely disagree with the representations of the grievor Contrary to what the grievor suggested, this is not a matter of money This is a matter of discrimination on the basis of religion. The adherents of minority religions are entitled to be absent from work with compensation on their holy days as set out in 1.immeJ/Leaf. It is astonishing to me, that a mere two years after the Iimmel/Leaf decision, some members of the religious majority are so intolerant so as to complain in this fashion citing the inequitable nature of the situation. Indeed, the specific remedy requested by the grievor is, effectively, that I order a return to a situation which the Supreme Court of Canada has found to be discriminatory Mr. Stewart wants me to order the Employer to break the law I would not do so even if I did have the jurisdiction to deal with this matter. I L I I '" . .; .. ,; 8 It may be that, in time, the parties will negotiate a somewhat different result which would have members of religious minorities working on Christian holidays. However, that is properly a matter for negotiations and it goes without saying that, at bargaining, the parties can strike a deal that both can live with. That is certainly not a matter for me, even in the abstract. Mr. Stewart suggested that the Union has been directed by a few interest groups to take the position that it has and that its position does not properly represent rank and file. I certainly hope not. I have difficulty believiag that an infonned member would ascribe to Mr. Stewart's views. Mr. Stewart stated that he was at a complete loss to understand why ) the Employer was now taking the very position it fought against before the lDmmeJILeaf panel. Surely even a member who is not conversant with the intricacies of the grievance and arbitration process can appreciate that, when one side is told that it has been acting in a fashion which contravenes the law, it must change. Mr. Stewart was very familiar with the limmeJ/Leaf decision. He referred to it generally and specifically He also knew of the Nova Scotia (supra) decision and the decision of the Supreme Court of Canada in Chamhry Even to a legally untrained reader, it would be relatively clear that, in the case of KimmeJ/Le1( the board decided that the actions of the employer not only violated the collective agreement, but also the law It was stated at page 56 of the Kimmel/Leaf d~cision. lilt has a discriminatory effect on these employees because it imposes financial consequences on them for the celebration of their important I ..... ~ . , 9 [ religious events. This can hardlv be said to aive effect to the Collective Aareement right to freedom from reliaious discrimination. not to mention the Charter of Riahts and Freedoms and the Ontario Human Riahts Code. (emphasis mine) For all of those reasonss I find that I am without jurisdiction to determine the matter and therefore the grievance is dismissed. Dated . 22ndday of June, 1995, in Toronto. Felicity D. Briggs Vice-Chair i ----~ -~ -~ II