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HomeMy WebLinkAbout1994-0353.DAND95_01_19 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 1Z8 TELEPHONE/TELEPHONE (416) 326-1388 180, RUE DUNDAS OUEST, BUREAU 2100, TORONTO (ON) M5G 1Z8 FACSIMILE/TELECOPIE (416) 326-1396 353/94 94B756 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN OPSEU (Dand) Grievor - and - The Crown in Right of ontario (Ministry of Health) Employer BEFORE: S stewart Vice-Chairperson I. Thomson Member F Collict Member FOR THE D. Wright UNION Counsel Ryder Whitaker Wright Barristers & Solicitors FOR THE C Nikolich EMPLOYER Counsel Legal Services Branch Ministry of the Attorney General HEARING December 14, 1994 DECISION In a grievance dated March 28, 1994, Ms J. Dand, a secretary at London Psychiatric Hospital, claims that she has "been constructively dismissed" The grievance further claims that Ms. Dand has been "unjustly disciplined" The settlement requested is that Ms. Dand be reinstated to her former duties and original position. At the outset of the hearing Mr. wright advised the Board that the Union's position is not that this is a disciplinary or discharge case Rather, it is the Union's position that at issue is a work assignment While the Union acknowledges that the matter of work assignment is a matter that falls within the exclusive jurisdiction of the Employer and thus, as a general rule, is inarbitrable, it is the position of the Union that the re-assignment of the grievor's duties is arbitrable on the basis that it was not a good faith exercise of management rights. It is the position of the Union that the re-assignment was effected for an ulterior motive, specifically to provide another employee with secretarial duties. It is the Union's further position that the decision of management with respect to the distribution of work in this instance is not rationally related to a legitimate governmental purpose. It is the position of the Employer that the grievance is in substance a grievance relating to the issue of work assignment 2 and that the Board should dismiss the grievance at this point on the basis that it is not arbitrable. It is the Employer's further position that the characterization of the issue as one of bad faith is not an accurate characterization of the grievance as it was originally framed and that the Board should not allow the Union to proceed with what is submitted to be a different grievance Ms. Nikolich referred us to a previous decision of this Board, Ministrv of Correctional Services and OPSEU (Houqhton), (Knopf) 771/88 That decision involved a grievance wherein a maintenance mechanic objected to "being ordered to perform the duties of correctional staff". The complaint related to the grievor's assignment to frisk search and escort inmates At the hearing the Union took the position that the Employer was in violation of its obligation to make reasonable provisions for the health and safety of its employees. The Board accepted the Employer's position that the Union was attempting to amend or change the grievance. In accepting the Employer's position the Board noted that the wording of the grievance and the processing of the grievance at stages 1 and 2 did not reveal a health and safety concern Ms Nikolich urges us to reach a similar conclusion on the facts before us and dismiss the grievance at this point. In dealing with the issue it is necessary to set forth the relevant facts, including those facts that were not in dispute 3 and those that are in issue between the parties. It was common ground that there was a re-organization at London psychiatric Hospital which was effected in the early part of 1994 It was also common ground that the grievor was made aware that there would be changes in the department. However, in advance of the assignment she was not specifically advised that she would be required to assume mailroom duties. The result of the re- organization is that the work that had been performed by three persons in OAG 2, OAG 4 and OAG6 classifications is now being performed by two persons The grievor remains in her former classification, OAG4 There is a temporary OAG6 position that has been assigned to an employee who was in an OAG2 classification In support of its position that the Employer has acted in bad faith the Union contends that a former administrator made a specific promise to another employee, who had formerly been performing mail room duties, that she would be given an opportunity to perform secretarial duties. It is contended that this promise was made prior to the Employer conducting an l assessment as to how the duties would be most appropriately I f divided upon amalgamation. It is claimed that some of the secretarial duties that were formerly performed by the grievor have been assigned to the other employee, who was formerly in an OAG 2 classification and is now in an acting OAG 6 r 4 classification. The Union contends that the ultimate result effected by the re-organization is that the Employer is assuming greater financial costs than necessary. The basis for this argument is that the duties as between the grievor and the other employee are carried out by employees in OAG4 and OAG6 classifications while if the other employee had been assigned the mailroom duties instead of the grievor, the Employer would be in a position where the duties were carried out persons in OAG2 and OAG4 positions, with a corresponding lower salary cost. It is the Union's position that these circumstances indicate that the Employer has not acted for legitimate business purposes in making the assignment as it did. The Employer's position is that the assignment was a good faith exercise of managerial authority In particular, it is denied that the grievor's former secretarial duties have in fact been assigned to the other employee It is contended that these duties remain the responsibility of the grievor. It is further contended that the decision with respect to the work assignment was made at a meeting in which the various alternatives were discussed and at which there was a Union representative in attendance Following the assignment to mail duties Ms Dand provided her supervisor, Ms. B Anderson, Director, Environmental Services, with a formal complaint dated March 9, 1994 pursuant to Article 27 of the Collective Agreement. In that complaint Ms. 5 Dand claims that she is being demoted to a lower classification and she objects to the physical demands of the position The grievor claims that her former duties are being performed by the former mailroom clerk and that she has been effectively removed from her former department The grievor further complains that "this relocation was communicated to me after my vacation in Florida, at no time was it discussed, but according to persons in the Hospital, a number of persons knew prior to it being discussed with me". The grievor goes on to claim that she has been "discriminated [against] , harassed and intimidated and given the lesser of the categories even though I have the most seniority"_ She goes on to contend that what she characterizes as a demotion "is a deliberate attempt to remove me from my duties as secretary OAG[4]" In support of the Union's position that the Board should entertain the grievance on the basis of bad faith allegations Mr Wright referred us to Ministrv of Natural Resources and OPSEU (Rei tsma) , (McCamus) 93/89 After reviewing a number of decisions of this Board the decision concludes as follows at pp 9 - 12- . we are persuaded that it is established jurisprudence of this Board that the Union cannot be permitted to fundamentally alter the character of the grievance at the arbitration stage of the process Although there are obviously a number of ways in which the proposition might be stated, we are attracted by the language of the Gwin decision, quoted above, in which it is suggested that the grievance should be dismissed where the amended 6 grievance does not "retain the essential identity of the original issues" but amounts in effect to a request "to entertain a grievance so fundamentally altered as to be tantamount to a separate grievance raising different issues". It is not necessary to belabour the policy reasons underlying this proposition. There is evident unfairness to the Employer in permitting a grievance to unfold on the basis of a particular set of allegations and a particular theory of liability, only to have it altered fundamentally at the arbitration process. The integrity of the earlier steps in the dispute resolution process would obviously be undermined by a willingness to allow what is, in effect, a new grievance at this stage Further, the prejudice to the Employer in terms of its ability to prepare its case is self-evident On the other hand, if the Board were to give too sweeping a view to the application of this proposition, other harmful effects to the dispute resolution process provided for in the collective agreement would follow As the Board noted in Gwin, an overly legalistic approach to the treatment of grievances may frustrate the objective of "acting upon grievances so as to achieve settlement of the true dispute" Thus, it cannot be the case that the Union is precluded from advancing legal arguments at the arbitration process that may not have been precisely formulated by the representatives of the Union at earlier stages in the process There are two reasons for this. First, the various steps in the grievance process envisage increasing levels of familiarity with the factual circumstances underlying the dispute. It is therefore obvious that the Grievor's understanding of the factual basis of his or her claim will evolve as this process unfolds Thus, even though the fundamental nature of the grievance may not be effected, the factual contours of the dispute may be adjusted over time and may lead the Union, for example, to rely on facts of which it was not completely aware at the initial stages of the process Second, if the initial grievance document and the initial statements made on behalf of the Grievor by the Union at step one, for example, were held, in effect, to be legal pleadings in the technical sense from which no deviation could be contemplated at a later stage, the early stages of the process would, in our view, become needlessly technical and legalistic. It is entirely within the spirit of the mechanism set forth in the collective agreement that lawyers may not become involved in the process until its later stages. Accordingly, it is consistent with that general structure that the gravamen of the Union's grievance may be put forward at the arbitration stage within the framework of a legal analysis 7 or argument that may not have been precisely formulated by the Union's representatives at earlier stages in the process. It is therefore necessary to distinguish, then, between the kind of fundamental change in the nature of the grievance that engages the line of jurisprudence set out above with the result that the grievance must be dismissed and the introduction of legal arguments and analysis that do not have this result While the position of the Employer was put forward very persuasively by Ms. Nikolich, we are unable to conclude that we are being asked, in the words of Gwin, as quoted in Reitsma, "to entertain a grievance so fundamentally altered as to be tantamount to a separate grievance raising different issues" After a review of the positions of the parties and the decisions provided to us we have concluded that the Employer's preliminary objection must fail and that the Board should proceed and consider the allegations of the Union with respect to bad faith We agree with Mr. Wright's submission that the situation before us is distinguishable from the situation in Houqhton, supra Unlike the Houghton case, where the health and safety aspect of the situation has never been raised with the Employer, the grievor's formal complaint which pre-dated her grievance outlines allegations which suggest bad faith. While these allegations were only amplified and characterized as bad faith shortly in advance of this hearing, this is not a situation where a suggestion of improper purpose and a questioning of the legitimacy of the business rationale of the decision has arisen for the very first time. In our view, this is a situation which ! is more appropriately characterized as a new legal analysis or ! ! f ~ r ! 8 argument that had not been precisely formulated at the earlier stages of the process rather than as a fundamental alteration of the grievance. It is common ground that this Board does possess jurisdiction to deal with matters which fall within the exclusive discretion of management where such discretion was exercised in bad faith and not for a legitimate business purpose We were referred to Ministrv of Community and Social Services and OPSEU (Gibson/Patterson), (Barrett) , 319/93 and Ministrv of Natural Resources and OPSEU (Bousauet), (Gorsky) , 541/90 where this Board has so held In our view, in the circumstances of this case, it is appropriate for us to allow the Union to raise those allegations in the context of the grievance that is before us Accordingly, the Employer's preliminary objection is dismissed The Board may well ultimately conclude that Ms Nikolich is correct in her position that this is essentially a dispute about the reassignment of work over which the Board has no jurisdiction However, in our view it would be inappropriate for us to preclude the Union from adducing evidence with respect to bad faith, thereby potentially establishing that this matter is within our jurisdiction Accordingly, the hearing in the matter will proceed and we direct the Registrar to make the necessary 9 arrangements in consultation with the parties. Dated at Toronto, this 2nd day of February ,1995. ~ u.ua.u-f s. L stewart, Vice-Chairperson '1 k /' - J . ~?7.-C~~J I J. Thomson - Member 'I Dissent' Dissent Attached F. Collict - Member DISSENT Re. G.S.B #353/94 (DAND) At page 8 of the award the following is stated "It is common ground that this Board does possess jurisdiction to deal with matters which fall within the exclusive discretion of management where such discretion was exercised in bad faith and not for a legitimate business purpose" This Member is in agreement with and fully supports this position This Member objects, however, that this case was pursued through the grievance procedure as an issue associated with a protest concerning constructive dismissal, job duties and job assignment, but at the "twelfth hour" at arbitration, Union counsel advanced the argument that the Employer had engaged in a bad faith activity in the exercise of its discretion associated with the assignment of these job duties The Employer raised a preliminary objection relative to the Union's "revised" position and ~rgued that the matter of work assignment is a matter which falls within the exclusive jurisdiction of the employer and, therefore, is inarbitrable Clearly, the issue to be determined by this Board is whether, as set out in the jurisprudence in matters of this nature, " this grievance should be dismissed where the awarded grievance does not "retain the essential identity of the original issues" but amounts in effect to a request to entertain a grievance so fundamentally alter.ed as to be tantamount to a separate grievance raising different issues" p 9-12 (Reitsma), (McCamus) #93/89 Counsel for the Union answered this question at the outset of the hearing by denyinq the nature of the original grievance (constructive dismissal and discipline), and then substituted the issue of bad faith (See first full paragraph of page 1 of award) Surely this position in itself was recognition that the Union had "fundamentally altered" the grievance In view of the above, therefore, this Member does not accept the finding or conclusion of this Board as set out at pages 7 and 8 of the award, as follows "while these allegations were only amplified and characterized as bad faith shortly in advance of this hearing, this is not a situation where a suggestion of improper purpose and questioning of the legitimacy of the business rationale of the decision has arisen for the very first time In our view, this is a situation which is more appropriately characterized as a new leqal analysis or arqument that had not been precisely formulated at the earlier stages of the process rather than as a fundamental alteration of the grievance" (underscoring added) The underscored section in the above is precisely why this Member is in disagreement with this award. The arbitration hearing was the very first time that the issue of bad faith was raised by the Union Moreover, this allegation was "a new leqal analysis or arqument" which has resulted in a fundamental change in the grievance The reasons for the position taken by the Member are as follows Union counsel agreed that the grievor, Mrs Dand, had not articulated "bad faith" in her protest relative to the reassignment of duties However, he argued that this is the meaninq of the grievor's words in a memo to the Director of Environmental Services in which she stated at page 2, (Exhibit - 3), "This complaint is not based on a monetary matter but that of general courtesy to an employee and I feel that I have been discriminated, harassed and intimidated and given the lesser of the categories even though I have the most seniority" Essentially, when combined with the rest of this memo, it is clear that the grievor is not alleging bad faith As stated by the grievor at page 1 of Exhibit 3 in the above noted memo, "1 I have been demoted to a lower classification 2 My duties are being performed by the former Mail Room Clerk f..t I am now required to stand for my full work day S.~ On amalgamation with Plant Services it was indicated that I would remain with full responsibilities as Secretary and sharing in the amalgamation duties not that of reassignment " Clearly, the issues complained of above are associated with job assignment, and if the issues might be characterized otherwise, one is dealing here with a classification grievance (although owing to further rationalization in the Department, no specific new job classifications have been established) The duties of the grievor were changed The grievor objected to the change Three jobs apparently were combined into two positions - albeit still on a temporary basis, and this is the issue that has been brought before this Board When one examines the grievance filed by the grievor there is absolutely no reference to bad faith Rather, the grievance specifically protests the reassignment of her duties, as follows "Statement of Grievance I protest that I have been constructively dismissed from my original position I grIeve that I am being unjustly disciplined I Settlement Desired That I be reinstated to my former duties and original position That the practice which gave rise to this grievance cease" Union counsel conceded that the issue in this case is job assignment (see page 1 of award), and not discipline He then introduced the new legal argument of "bad faith" Union counsel further qualified the language of the aggrieved matter as set out on the grievance form on the basis that the Union representative who prepared the grievance is not legally trained and that, accordingly, the Board should allow an expansion of the grievance when referred to legal counsel In response to this position, Employer counsel stated that the Union representative who prepared this grievance is both very experienced and professional Moreover, it should be noted that in issues of this nature, it is generally the imprecise language of the grievance that may be expanded, -- rather than the "fundamental nature" of the grievance, -- as has occurred in this case where the language and issues are set out very specifically No evidence was heard concerning the experience or training of the Union representative However, it should be noted that the concept of "constructive dismissal", as claimed in the grievance, is quite sophisticated, and this is precisely what the grievor was protesting relative to the reassignment of her duties By comparison, the concept of "bad faith" is very simple to grasp, - but it was not so alleged or referred to at any time throughout the grievance process nor in the grievance itself When the grievance reached Union counsel prior to this arbitration hearing, he "shifted gears", he denied both the substance and the form of the grievance, and he introduced a new argument of bad faith action on the part of the Employer In the view of this Member, counsel introduced an "end run" designed to circumvent the Employer's exclusive function to assign work to employees as set out in s 18 of CECBA, and by the Introduction of a bad faith allegation he changed the fundamental nature of this grievance On this basis, the grievance should be dismissed and the preliminary objection raised by the Employer should be upheld Based upon the information advanced by counsel from either side, it is clear that the grievor has been assigned duties that she does not want to perform, and that she has grieved the assignment of these additional duties as well as duties that were removed from her prior activities This is what her grievance protested As stated by Union counsel, this case is about job assignment and that is what was argued consistently throughout the grievance procedure In the view of this Member, the Ontario Grievance Settlement Board normally does, and should have concern for the integrity of the grievance administration process. To accede to an "end run" as has occurred in this case is to defeat the process designed by the parties to expedite the hearing of the many disputes that appear before the Board g0 J I -' rY /,~. FT Colli 7'n /7~J