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HomeMy WebLinkAbout1996-1925.Union.98-02-13 Decision ONTARKJ EMPLOYES DE LA COURONNE CROWN EMPLOYEES DE L'ONrARKJ .r 1111 GRIEVANCE COMMISSION DE SETTLEMENT REGLEMENT BOARD DES GRIEFS 180 DUNDAS STREET WEST SUITE800, TORONTOONM5G 1Z8 TELEPHONEITELEPHONE (41(1) 32tJ-1388 180, RUE DUNDAS OUEST BUREAU 800, TORONTO (ON) M5G 1Z8 FACSIMILEITELECOPIE (41tJ) 32tJ-130tJ GSB # 1925/96 OPSEU #96UI0l IN THE MA ITER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN OPSEU (Union Grievance) Grievors - and - The Crown in Right of Ontario (Mirustry of the SoliCitor General and Correctional Services) Employer BEFORE R.H. Abramsky Vice-Chair FOR THE A. Ryder UNION Counsel Ryder Wnght Blair & Doyle FOR THE S Kapur EMPLOYER Counsel, Legal Services Branch Management Board Secret an at HEARING December 16, 1997 PRELIMINARY AWARD The underlymg gnevance m tms matter mvolves a challenge by the Uruon to certam aspects of the Mirustry's Attendance Enhancement Program which went mto effect in January 1996 At the start of the hearing, however, the Employer raised a preliminary obJectIOn, assertmg that the gnevance had become moot With the mtroductlOn of a new, corporate-wide attendance policy on October 1, 1997 EVidence and arguments were heard on that motion and thiS Prelimmary Award addresses the mootness Issue Facts Most of the pertment facts are not m dispute. In January 1996, the Mirustry of the SoliCitor General and Correctional Services implemented an Attendance Enhancement Program (AEP) "deSigned to reduce absenteeism m the ffilruStry and to assist employees expenencing illness and mJury" Under the program, employee attendance was measured, quarterly, agamst the Mirustry average absenteeism of 9 4 days per year, referred to as the "threshold" All employees who exceeded the established threshold entered Level One of the formal review process. In most cases, the employee would then meet WIth management to diSCUSS, among other thmgs, the employee's prognosIs, whether any assistance was reqUIred (such as accommodation, counseling or medical referrals), and attendance goals. If the attendance goals were subsequently met and mamtamed, the employee would eXit the program. If not, the employee would proceed to Level Two In all, EAP contamed five levels, With the final level mcludmg such measures as further morutonng, Job change, demotion or termination. 2 Under EAP, employees who worked a compressed work week, with 12 hour shifts, were credited with 1 5 days of absence for each shift missed. An employee who worked an 8 hour shift would be credited with 1 day of absence Although ongmally, there was to be a workslte-based threshold used m the program, difficulties in Implementation led the Ministry to use the Mirustry average absenteeism as the threshold. Under EAP, all absences due to illness and non-work related mJunes (exclusIve of L TIP, WCB and those on pregnancy/parental leaves) were mcluded m determtnmg the employees' absenteeism. Although no speCific numbers were prOVided, it IS undisputed that the EAP was Implemented by the Mirustry and that many employees were placed into the formal program and progressed through the vanous levels. Numerous mdlvldual gnevances were filed as well as the Union's policy gnevance. On December 2, 1996, the Employer and the Uruon agreed to either adJourn all of the indiVidual gnevances concerrung the Attendance Enhancement Program, pendmg the outcome of the Union's policy gnevance, or consohdate them with the Uruon gnevance so that all of the Issues could be dealt with at one time Further, m response to the Uruon's request for a WaIver of time limits on future grievances, the Employer stated that It saw "no need to agree to a waIver of time limits when the Union pohcy gnevance would have been filed first and therefore any resolution or deCISion stemmtng from that gnevance. would aply to all members of the Uruon and would be apphable from the date of the fihng of the gnevance " 3 Effective October 1, 1997, a new corporate-wide Attendance Support Program (ASP) was implemented. This new program replaced the existmg Ministry AEP It has three levels mstead of five and contams no mamtenance or sustamment phases, mstead, returnmg employees to the level they eXited the program If they exceed the Mirustry's threshold withm 24 months of completing the program. The new program contmues to use the Ministry's average absenteeism to determine the absenteeism threshold, although some changes were made in the manner this was to be calculated, leadmg to an increase in the Mirustry threshold to 10 3 absences. Under EAP, the Ministry threshold had been 9 4 absences. The new program also contmues to credit an employee on a 12 hour smft as absent for 1 5 days for each shift missed and mcludes all absences, exclusive of workplace msurance and L TIP absences) Under ASP, most employees were given a "fresh start" when the program was first Implemented, begmrung the program after exceeding the absenteeism threshold for their mlrustry Several exemptions from the "fresh start" were permitted, however, mcludmg when "an attendance support program modeled on the corporate program IS m place in the mtrustry " Under tms approach, the Ministry of Solicitor General and Correctional Services deCided that "[ e ]mployees currently in the Attendance Enhancement Program (AEP) will enter the new program at the eqUIvalent level. There will be no "Fresh Start" for employees currently in the AEP" Consequently, employees at Levell under AEP went directly to Level 1 under ASP Employees at Levels 2 or 3 under AEP went to 4 Level 2 of ASP, and employees at Levels 4 and 5 under AEP went to Level 3 of ASP To date, no grievances have been filed over the new Attendance Support Program. Arguments of the Parties The Employer contends that with the October 1, 1997 ImplementatIOn of a new, corporate-wide Attendance Support Program, the Union's gnevance pertalrung to the Mirustry EAP has become moot. It submits that there is no longer a hve controversy smce the Mirustry program IS no longer is effect, and any ruhng as to the aspects of the program to which the Uruon objects would be purely academtc It argues It makes no labour relations sense to decide a moot matter and that the parties' scarce resources should not be wasted by litlgatmg a defunct program. The Employer submtts that If the new program IS flawed, the Uruon IS free to arbitrate that by fihng a gnevance over the new pohcy In support of ItS contentions, the Employer cites to Borowski v Canada (Attorney General) (1989), 57 D.L.R. (4th) 231, 1 S C.R. 342 and Re Weiland County Roman Catholic Separate School Board and Ontario English Catholic Teachers Association (1992),30 L A.C (4th) 353 (Brunner) In terms of any contmumg effects of the Mirustry EAP, the Employer contends that the Uruon, to aVOId a mootness findmg, must not only show that employees were placed in the new program because they were under the EAP, but that they would not otherwise be there. It submIts that If the employees' attendance would have resulted m 5 the same placement under the new program, then there was no harm done and no continuing effect of the old program. The Umon, m contrast, argues that the gnevance IS not moot because the Mirustry's attendance program cont1Oues to affect employees under the new plan. The eVidence, It asserts, establishes that Mirustry employees were not given a "fresh start" but were automatically placed m the correspond1Og level 10 the new program. It submtts that but for the Impugned features of the Mimstry program (speCIfically, Its treatment of 12 hour shtfts, Its use of the Mirustry average as the threshold, and Its treatment of Innocent absences), employees would not be under the ASP program. Consequently, In Its VIew, the Mirustry's detefffilnatIons under EAP cont1Oue to affect employees under the new program. The Uruon further argues that the corporate plan contains only minor dIfferences from the Mirustry plan, especially regarding the alleged flaws wmch have not been ehmtnated. The continuation of these flaws, it contends, distmgulshes thts case from Borowski, supra, where the challenged legislation was struck down. While the Uruon does not disagree WIth the Junsprudence cIted by the Employer, it submtts that the cases cIted are not applIcable here. 6 Decision At issue is whether the instant grievance, which challenges certain aspects of the Mimstry's Attendance Enhancement Program, has been rendered moot by the subsequent ImplementatIOn of a corporate-wide attendance program. The leadmg Canadian case concernmg mootness is Borowski v Canada (Attorney General), supra In that case, an action was brought claiming that the therapeutic abortIon provISIons of the Criminal Code violated the Canadian Bill of Rights and the Canadian Charter of Rights and Freedoms Before the case could be heard by the Supreme Court of Canada, the challenged abortion proVIsions were struck down by the court m another declSlon, and thus "a senous Issue eXIsted as to whether the appeal was moot." (57 D.L.R. (4th) at 235) The Court unanImously detefffilned that the appeal was moot, and Mr JustIce Sopmka, speakIng for the court, discussed the doctnne of mootness as follows, at p 239 The doctnne of mootness is an aspect of a general pohcy or practice that a court may decline to decIde a case wmch raises merely a hypothetical or abstract question. The general pnnciple applies when the deCISIon of the court will not have the effect of resolv1Og some controversy which affects or may affect the nghts of the partIes. If the deciSIOn of the court will have no practical effect on such nghts, the court will decline to deCIde the case. ThiS essentIal mgredient must be present not only when the actIon or proceedmg IS commenced but at the tIme when the court is called upon to reach a decIsion. Accordmgly If, subsequent to the irutIatIon of the action or proceedmg, events occur whIch affect the relatIonsmp of the partIes so that no present live controversy exists wmch affects the rights of the partIes, the case IS saId to be moot. 7 In Borowski, the court determ10ed that the appeal was moot because "there [was] no longer a live controversy or concrete dispute as the substratum of Mr Borowski's appeal has dIsappeared." The basIs of the appeal - that certam sectIOns of the Criminal Code were unconstItutIOnal - was moot because the dIsputed provisIons had already been struck down in another case and thus "the raIson d'etre of the action has dIsappeared." Borowski, supra at 242 In so ruling, the court CIted other cases in which an actIOn was deemed moot. For example, when a murucipal by-law was repealed pnor to the heanng, It was held that the appealing party had no actual mterest and that the deCIsion could have no effect on the partIes. Moir v Village of Huntingdon (1981), 19 S C.R. 363 (S C C), quoted at p 240 LikewIse, the repeal of two statutes m questIon led the Pnvy Council to refuse to address the constItutIOnahty of those laws. A. G A Ita. v A.G Canada, [1938] 4 D.L.R. 433, [19390 AC 117 ( PC), quoted at p 240 In International Brotherhood of Electrical Workers'Local Union 2085 and Winnipeg Builders' Exchange (1967), 65 D.L.R.(2d) 242, [1967] S C.R. 628, quoted at pp 240-41, the end ofa strike rendered moot a dispute between the partIes as to the validIty of an mjunctIOn prohibItmg certam strike actIOn. SImilarly, m Re Weiland County Roman Catholic Separate School Board and OECTA, supra, the board of arbItratIOn dechned to deCIde a moot gnevance In that case, the gnevance alleged that the school board vIolated a memorandum of settlement by failIng to hire a certam number of addItIOnal teachers in order to proVIde preparatIOn and 8 plannmg tIme to the full-tIme teachers But by the time the heanng was held, the school year In questIon had ended and only a declamatory order of violatIon was sought. No damages were alleged as a result of the breach. The board determIned that the issue was "moot, and that no declaratory order as to breach or comphance should be issued as no useful or practical purpose would be served In so dOIng, gIven that no damages were established and that no other consequential relief IS warranted." Re Weiland, supra at 355 A declaratIon eIther of breach or complIance would, in its VIew, have no "practIcal effect, other than perhaps to score a debatmg po1Ot for one Side or the other" Re Weiland, supra at 358 Applying these pnncIples to the facts in tms case, it might appear, at least at first blush, that the gnevance IS moot. The Mirustry AEP is no longer m effect but has been supplanted by the corporate-wIde ASP At first blush, the discontInUatIOn of the Mirustry program is akin to legIslatIon that has been repealed or found unconstitutIOnal, and determtrung the ments of the claIm would serve no useful purpose. In this case, had the employees affected by the Ministry EAP been gIven a "fresh start" under the new program, I would agree that the gnevance IS moot. If that had occurred, the Mirustry program would be a nulhty and have no contmumg Impact or affect If that had occurred, the baSIS of the grievance - that certaIn aspects of the Mirustry program were Improper and adversely affected Mirustry employees - would "have dISappeared " 9 But that did not occur The Ministry determined that it had "an attendance support , program modeled on the corporate program. " and thus was exempt from provIdIng employees WIth a "fresh start." The propriety of that decIsion IS not before me and I make no ruling on It. However, that decisIon impacts the Issue of mootness. By determIning that there would be no "fresh start" for Mirustry employees and decIding that "[ e ]mployees currently In the Attendance Enhancement Program (EAP) will enter the new program at the equivalent level", MinIstry employees contmue to be affected by detefffilnatIOns made under the Mirustry's EAP If an employee was placed at Level 1 m the Mirustry program he automatically was placed at Level 1 under the new one. Consequently, If the IrutIal determination to place him at Level 1 was flawed, by VIrtue of the alleged defects in the Ministry's program, those defects contInue to affect him and have legal consequences under the new program. Tms contInumg effect dist10guishes the instant case from the situatIon In Borowski and the cases CIted therein as well as the Weiland case. In those cases, the strikIng down or repeal of the statutes, the end of the strike, and the conclUSIOn of the school year, meant that basis of the litIgation had disappeared and therefore a deciSIon on the merits could have no effect on the partIes. In contrast, In tms case, because of the contInuing Impact of the Mirustry's detefffilnatIOns under the EAP, the basIs of the gnevance has not dIsappeared and a detefffilnatIOn on the ments will have a real impact. 10 In so ruhng, I cannot agree with the Mimstry that the Umon must estabhsh, to defeat a claim of mootness, that the affected employees would not otherwise have been placed Into ASP Under thIS view, If an employee's 1996 absences would have exceeded the new threshold establIshed under the ASP, he suffered no real harm as a result of InclUSIOn in EAP In my VIew, whether or not an employee would have exceeded the new threshold under ASP, had it existed In 1996, does not elimtnate the contmuIng impact of the determinations made under the EAP What matters, Insofar as mootness of the Uruon's gnevance is concerned, is that the Ministry's employees were automatically entered Into the new program at the correspondIng level. As a result, detefffilnatlOns made under the EAP contInue to Impact employees under the new program. Further, even when a matter is deemed moot, adjudicators still have dIscretIOn to hear a case on the ments. Borowski, supra at 239 According to the Supreme Court of Canada, one of the factors to conSIder in determining whether tms discretion should be exercIsed IS the existence of collateral consequences wmch are sufficient to ensure an adversanal proceedmg. Borowski, supra at 243-44 In disCUSSIng tms Issue, the court cited Vie Restaurant Inc. v City of Montreal (1958),17 D.L.R. (2d) 81, [1959] S C.R. 58 In that case, due to the sale of the restaurant in question, the appellant's legal claIm had become moot, but because there were prosecutions outstandIng for violatIon of the murucIpal by-law WhICh was the subject of the legal challenge, there was "a collateral consequence which prOVIded the appellant With a necessary mterest which otherwise would have been lackIng." Borowski, supra at 244 The Supreme Court of Canada also 11 cIted to the UnIted States case Southern Pac. Co. v Interstate Commerce Com 'n, 219 U S 433 (1911), m whIch, despIte the expIry of the order whIch was the subJect of the legal challenge, the remamIng potential hability of the railway company "compnsed a collateral consequence JustIfying a decision on the ments " Borowski, supra at 244 In this case, even if the underlYIng claIms about the EAP are moot due to the fact that a new attendance program is now In effect, the contmuIng Impact of the detefffilnations made under the EAP estabhsh a "collateral consequence" wmch, In my view, justifies exercismg this board's dIscretion to hear the merits. For all of the foregoing reasons, the Employer's motion to disffilss due to mootness IS dIsffilssed. Issued thts 13thday of February, in Toronto, Ontario half 12