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Home My WebLink About2001-0507.Fox et al.01-09-27 Decision ~M~ om~o EA1PLOYES DE LA COURONNE _Wi iii~~~i~T DE L 'ONTARIO COMMISSION DE REGLEMENT "IIIl__1I'" BOARD DES GRIEFS Ontario 180 DUNDAS STREET WEST SUITE 600 TORONTO ON M5G 128 TELEPHONElTELEPHONE. (416) 326-1388 180 RUE DUNDAS OUEST BUREAU 600 TORONTO (ON) M5G 128 FACSIMILE/TELECOPIE. (416) 326-1396 GSB#0507/01, 0508/01, 0509/01 UNION# 01 B204, 01 B205, 01 B206 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN Ontario Public Service Employees Union (Fox et al) Grievor -and- The Crown In Right of Ontario (Ontario Human Rights Commission) Employer BEFORE Susan L Stewart Chair FOR THE GRIEVOR Gavin Leeb Grievance Officer Ontario Public Service Employees Union FOR THE EMPLOYER Lisa Compagnone Counsel Legal Services Branch Management Board Secretariat HEARING September 11, 2001 2 DECISION ThIS decIsIOn deals wIth a request by the Umon for mtenm rehef A prehmmary ObjectIOn made by the Employer to the Board's jUnSdIctIOn to consIder mtenm rehefwas rejected m a decIsIOn dated September 5, 2001 ThIS decIsIOn deals wIth the ments of the motIon mvolvmg Ms Crowe and Ms Kema. Ms Fox was III on the September 11,2001, heanng date and thus the partIes agreed to adjourn the motIon m connectIOn wIth her gnevance The gnevors are mvestIgators wIth the Ontano Human RIghts CommIssIOn They mvestIgate complamts made by members of the pubhc who allege that they have been subjected to dIscnmmatIOn m contraventIOn of the prohibItIons m the Human RIghts Code The complamts are vaned m nature and anse m the context of employment, housmg, health serVIces and many other areas The mvolvement of an mvestIgator wIth any partIcular file IS completed for the purposes of the Employer's standards for the completIOn of files when a matter IS resolved by the wIthdrawal or settlement of a 3 complamt, or by what IS referred to as the "dIsclosure"of a file, whIch entails forwardmg a completed mvestIgatIOn file to the CommIssIOn The dIsclosure of a file reqUIres comphance wIth certam deadhnes so that mternal processes m relatIOn to the file may be completed m order that It wIll be ready to be dealt wIth by the CommIssIOn on prescheduled dates Heremafter, reference to closure IS mtended to mclude "dIsclosure" The gnevances have theIr ongm m the Employer's dIrectIOn to the gnevors m relatIOn to expectatIOns wIth respect to the closure of files That dIrectIOn, as It was mItIally expressed, was set out m a letter to each of the gnevors dated June 7, 2001 In that letter, concerns were detailed m relatIOn to prevIOUS performance appraisals wherem the gnevors had been advIsed that they were not meetmg performance expectatIOns m relatIOn to case closmg targets They were further advIsed that It was expected that they would be able to close a mmImum of twenty cases by September 30, 2001 The letter goes on to refer to resources that would be aVailable to assIst the gnevors m attammg that goal As well, the letter refers to the potentIal ImphcatIOns of a failure to meet the standard, as follows "Should you fall to close/dIsclose 20 cases as reqUIred, your contmued employment wIth the CommIssIOn wIll be revIewed and a decIsIOn made about your employment 4 status" It IS thIS latter statement whIch gIves nse to the UnIon's request for mtenm rehef The UnIon has requested that the Employer be precluded from takmg any actIOn that would have financIal consequences for the gnevors, that IS, the ImposItIOn of a suspenSIOn or dIsmIssal, untIl such tIme as the vahdIty of theIr gnevances challengmg the propnety of the Employer's dIrectIve has been determmed by thIS Board The Employer has smce advIsed of the reductIOn of the case closmg target from 20 cases to a range of 15 to 18 cases ThIS reductIOn has not resolved the dIspute between the partIes m connectIOn wIth the gnevances and, mdeed, the CIrcumstances surroundmg the commUnICatIOn of tlllS revIsed objectIve was raised by the UnIon as a further basIs for ItS posItIOn that the Employer IS conductmg Itself m vIOlatIOn of ItS obhgatIOns under the CollectIve Agreement The Issue before the Board at thIS pomt IS whether an order for mtenm rehef ought to be granted The test for mtenm rehef IS two-fold. 1) the eXIstence of an arguable case m the mam apphcatIOn 2) the balance of potentIal harm or mconvenIence 5 The essence of the testImony of both Ms Crowe and Ms Kerna was that the prospect of the loss of theIr employment was humIlIatmg and devastatmg Both testIfied, and It was apparent from the manner m whIch they testIfied, that the questIOnmg of theIr competence and the prospect of the loss of theIr employment tnggered a strong emotIOnal reactIOn TheIr personal and famIly hves as well as relatIOnshIps m the workplace have been affected. Both testIfied about concerns about financIal secunty associated wIth a loss of mcome Mr J Donon, who IS the supervIsor of Ms Crowe and Ms Kerna, testIfied as to the concerns of the Employer m ensunng pubhc confidence m ItS abIhty to deal wIth complamts m a tImely manner Reference was also made to the need of complamants and respondents to have matters dealt wIth m a tImely manner These consIderatIOns resulted m the settmg of and the need for enforcement of standards m relatIOn to the closmg of files In thIS regard M. Donon emphasIzed that whIle the ultImate sanctIOn of dIscharge or dIscIphne was an optIOn, It was recogmzed that such an approach would be restncted to the appropnate cIrcumstances, where there was JustIficatIOn for such an approach 6 There was addItIonal eVIdence adduced whIch was relevant to the Issue of the eXIstence of an arguable case It IS unnecessary for me to refer to that eVIdence as It IS my VIew that the balance of potentIal harm favours the Employer, and thus that UnIon's motIon must be dIsmIssed. The prmcIples relevant to the Issue before me are summanzed m MmIstry of CorrectIOnal ServIces & OPSEU ( Stewart ), 1000/94 (Gorsky), a decIsIOn relIed on by Mr Leeb As Mr Leeb emphasIzed, that decIsIOn notes that grantmg mterlln relIef IS not lImIted to rare and exceptIOnal CIrcumstances and also that the mtegnty of management nghts IS not detennmatIve of the matter However, the decIsIOn also notes at page 6, referrmg to WIllIam NeIlson Ltd. & UnIted Food and Commercial Workers' UnIon (unreported decIsIOn dated July 16, 1993) (K Swan), that there should be a "showmg of some specIfic mconvenIence bemg suffered to the gnevor apart from what may generally be presumed " UltImately, of course, the test entails the balancmg of the potentIal harm There IS some force to the submIssIOn that there are many optIOns aVailable to the Employer whIch would not entaIl financial consequences for the gnevors, and thus that the balance of convenIence supports an order m 7 theIr favour However, whIle the prospect of suspenSIOn or dIscharge, although speculatIve, IS extremely troubhng to the gnevors, the eVIdence does not estabhsh specIfic mconvemence apart from what may generally be presumed The Employer has an extremely Important and fundamental mterest m settmg standards and ultImately enforcmg those standards, an mterest that may be placed m Jeopardy If a hmItatIOn IS placed on ItS nghts m tlllS regard. The CIrcumstances of tlllS case are not analogous to the cases where tlllS Board has granted mterlln rehef m the past In my VIew, the balance of potentIal hann clearly favours the Employer m the CIrcumstances of tlllS case In the course of her submIssIOns Ms Compagnone argued that the test for mterlln rehef should be vIewed somewhat dIfferently m the context of an arbItratIOn process, where matters wIll proceed wIth more dIspatch than m Court Mr Leeb took Issue WIth thIS submIssIOn and suggested that to accept thIS posItIOn would be to change the nature of the test that has long been estabhshed at thIS Board I have made my determmatIOn of the matter wIthout the necessIty of entertammg thIS consIderatIOn, however It does raise a practIcal matter that IS worthy of comment That practIcal matter IS that the Board can very often accommodate the partIes m schedulmg matters to 8 be heard and determmed on an expedIted basIs, eIther by arbItratIOn or medIatIOn, thus potentIally obvIatmg the need to have matters addressed on an mtenm basIs Ms Compagnone also argued that an order precludmg the Employer from dIschargmg the gnevors would fall wIthm the prohIbItIon contamed m sectIOn 48 (13) of the Labour RelatIOns Act, whIch precludes an arbItrator from remstatmg an employee, a submIssIOn wIth whIch Mr Leeb took Issue Once agam, It IS unnecessary for me to decIde tlllS Issue, gIven my conclusIOn that the balance of potentIal harm or mconvenIence favours the Employer m tlllS mstance For the foregomg reasons, the UnIon's request for mtenm rehef IS denIed. Dated at Toronto, thIS 27th day of September, 2001 o/3t~ Susan L Stewart - Chair