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HomeMy WebLinkAbout2001-1093.Group Grievance Andersen et al.02-11-12 Decision ~M~ om~o EMPLOYES DE L4 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 TELEPHONEITELEPHONE. (416) 326-1388 180 RUE DUNDAS OUEST BUREAU 600 TORONTO (ON) M5G 128 FACSIMILEITELECOPIE. (416) 326-1396 GSB#1093/01 UNION#01C792 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN Ontano PublIc ServIce Employees Umon (Group Gnevance Andersen et al) Grievor -and- The Crown In RIght of Ontano (Mimstry of CorrectIOnal ServIces) Employer BEFORE RIchard Brown Vice-Chair FOR THE UNION Susan Ballantyne BarrIster and SOlICItor Raven, Allen, Cameron & Ballantyne FOR THE EMPLOYER F enna MUIJ 1 Counsel Management Board Secretanat HEARING October 29 2002 2 DECISION The dIspute underlYIng the gnevance at hand IS descnbed In my Intenm deCISIOn, dated June 27, 2002 ThIS group gnevance was filed on behalf of seven correctIOnal officers employed at the RIdeau CorrectIOnal Centre The gnevors claimed compensatIOn for vandahsm to theIr vehIcles whIch occurred In the parkIng lot at theIr workplace The umon contended that the damage was done by persons lOItenng In the parkIng lot whIle aWaitIng admIssIOn to serve IntermIttent sentences AccordIng to thIS hne of argument, the employer dId not take reasonable precautIOns to protect the automobIles In the lot (page 2) In the Intenm award, I upheld the employer's prehmInary obJectIOn that the facts alleged by the gnevors would not constItute a vIOlatIOn of the collectIve agreement In summary, the facts alleged would not constItute a vIOlatIOn of eIther artIcle 2 1 or artIcle 9 1 NeIther of those artIcles confers upon me the JunsdlctIOn to grant the rehef sought by the umon It remaInS to be determIned whether such JunsdlctIOn flows from the prIncIples enunciated by the Supreme Court of Canada In Weber V OntarlO Hydro, [1995] 2 S C.R. 929 (page 2) ThIS decIsIOn addresses the apphcatIOn of Weber to the facts alleged by the umon I The scenano In Weber IS SUCCInctly summanzed In the Judgement of the Supreme Court 3 Mr Weber was employed by Ontano Hydro As a result of back problems, he took an extended leave of absence Hydro paid hlln the sIck benefits stIpulated by the collectIve agreement As tllne passed, Hydro began to suspect that Mr Weber was mahngenng It lured pnvate InvestIgators to InvestIgate ItS concerns The InvestIgators came on Mr Weber's property PretendIng they were someone else, they gaIned entry to Ius home As a result of the InfOnnatIOn It obtaIned, Hydro suspended Mr Weber for abusIng Ius sIck leave benefits Mr Weber responded by takIng the matter to Ius umon, whIch filed gnevances agaInst Hydro on August 28, 1989 One of the gnevances alleged that Hydro's lunng of the pnvate InvestIgators vIOlated the terms of the collectIve agreement Among other tlungs, the umon asked the arbItrator to reqUIre Hydro to gIve an undertakIng to dIscontInue USIng pnvate secunty finns to momtor health absences, and to pay Mr Weber and Ius faInIly damages for mental angUIsh and suffenng anSIng out of the surveIllance The arbItratIOn commenced on March 8, 1990, and was subsequently settled. In the meantIme, on December 27, 1989, Mr Weber commenced a court actIOn based on tort and breach of Ius Charter nghts, clallnIng damages for the surveIllance The torts alleged were trespass, nUIsance, deceIt, and InVaSIOn of pnvacy Weber's claims under the Canadzan Charter of Rlghts and Freedoms were for breaches of Ius nghts under ss 7 and 8 (page 949) OntarIO Hydro contended the courts could not hear Weber's SUIt because the matters about whIch he complaIned fell wltlun the JunsdlctIOn of an arbItrator SpeakIng for the Court, Madame JustIce McLachlIn consIdered the sorts of dIsputes whIch only an arbItrator may adJudIcate She quoted wIth approval the folloWIng passage from the Judgement of Mr JustIce Estey In St Anne Nackawlc Pulp & Paper Co v Canadzan Paper Workers UnlOn, [1986] 1 S C.R. 704 The collectIve agreement estabhshes the broad parameters of the relatIOnslup between the employer and Ius employees ThIS 4 relatIOnslup IS properly regulated through arbItratIOn and It would, In general, subvert both the relatIOnslup and the statutory scheme under whIch It anses to hold that matters addressed and governed by the collectlve agreement may nevertheless be the subJect of actIOns In the courts at common law The more modern approach IS to consIder that labour relatIOns legIslatIOn provIdes a code governIng all aspects of labour relatIOns, and that It would offend the legIslatIve scheme to pennlt the partIes to a collectIve agreement, or the employees on whose behalf It was negotIated, to have recourse to the ordInary courts whIch are In the CIrcumstances a duphcatIve forum to whIch the legIslature has not assIgned these tasks (page 718-719, emphasIs added) AccordIng to tlus ruhng, matters "addressed and governed" by a collectIve agreement" fall exclusIvely wltlun the scope of arbItratIOn As In St Ann Nackawlc, the Supreme Court In Weber based ItS decIsIOn on the legIslatIve reqUIrement that dIsputes ansIng under a collectIve agreement be resolved by arbItratIOn SectIOn 45( 1) of the OntarlO Labour RelatlOns Act, hke the [statutory] prOVISIOn under consIderatIOn In St Anne Nackawlc, refers to "all dIfferences between the partIes ansIng from the InterpretatIOn, apphcatIOn, admInIstratIOn or alleged vIOlatIOn of the agreement" The OntarIO statute makes arbItratIOn the only aVailable remedy for such dIfferences It IS Important that dIsputes be resolved qUIckly and economIcally, WIth a mInllnUm of dIsruptIOn to the partIes and the economy To pennlt concurrent court actIOns whenever It can be said that the cause of actIOn stands Independent of the collectIve agreement undennInes tlus goal, as tlus Court noted In St Anne Nackawlc (page 954, emphasIs added) ElaboratIng on the test to be apphed In detennInIng whether a partIcular controversy IS wltlun the sole JunsdlctIOn of arbItratIOn, the Supreme Court stated. 5 [T]he analysIs of whether a matter falls wltlun the exclusIve arbItratIOn clause must proceed on the baSlS of the facts surroundzng the dlspute between the partles, not on the baSlS of the legallssues whlch may be framed. The Issue IS not whether the actIOn, defined legally, IS Independent of the collectIve agreement, but rather whether the dIspute IS one "ansIng under [the]collectIve agreement" (page 953, emphasIs added) HavIng emphasIzed what matters IS the factual basIs of a conflIct, not the legal labels apphed to It, the Court went on to address the proper way to determIne whether a dIspute belongs In arbItratIOn ThIS approach does not preclude all actIOns In the courts between employer and employee Only d,5,putes whlch expressly or znferentzally arzse out of the collectlve agreement are foreclosed to the courts ThlS does not mean that the arbltrator wlll conslder separate "cases" of tort, contract or (1harter Rather, In deahng wIth the dIspute under the collectIve agreement and fasluonIng an appropnate remedy, the arbltrator wlll have regard to whether the breach of the collectlve agreement also constltutes a breach of a common law duty, or of the Charter (pages 756-758) The Court dIrected labour arbItrators to adJudIcate controverSIes "whIch expressly or InferentIally arIse out of the collectIve agreement" and to consIder "whether the breach of the collectIve agreement also constItutes a breach of a common law duty, or of the Charter" ArbItrators were told not to "consIder separate 'cases' of tort, contract or (1harter " The Supreme Court released ItS decISIOn In Weber on the same day as ItS nllIng In 0 'Leary v The Queen zn Rlght of New Brunswlck [1995] 2 S C.R. 967 The Court In 0 'Leary adopted and apphed ItS nllIng In Weber 6 II In the case at hand, counsel for the umon submIts the dIspute about property damage arIses "InferentIally" from artIcles 2 1 and 9 1 of the collectIve agreement, wltlun the meanIng of the rulIng In Weber, notwIthstandIng the Interlln award holdIng the facts alleged would not constItute a breach of the agreement As to artIcle 2 1 deahng wIth management nghts, counsel submIts the damage to the gnevors' velucles resulted from the employer's Improper decIsIOns about staffing levels and the kInds and locatIOn of secunty eqUIpment and from management's failure to enforce rules concernIng the consumptIOn of alcohol by Inmates and where they park theIr own velucles Counsel also argues the same Improper decIsIOns and failures on the part of management lead to the conclusIOn that the dIspute anses InferentIally under artIcle 9 1 deahng wIth health and safety Based on a dIfferent understandIng of Weber, employer counsel contends the Interlln ruhng leads Inexorably to the conclusIOn that the gnevors' claim IS not arbItrable AccordIng to tlus hne of argument, by saYIng arbItral JunsdlctIOn encompasses matters whIch "expressly or znferentzally" anse under a collectIve agreement, the Supreme Court hmlted the scope of arbItratIOn to matters governed by the express or Imphed terms of such an agreement III Counsel for the employer rehes upon Abbott Laboratorzes Ltd. and Retazl, Wholesale Canada (1998),74 L.A.C (4th) 331 (R.M. Brown) where I commented on the meanIng of the phrase "expressly or InferentIally" In Weber 7 [T]he Supreme Court said the JunsdlctIOn of an arbItrator encompasses dIsputes arISIng from the express or lmplzed terms of a collectIve agreement ThIS IS how the Court's reference to "expressly or InferentIally" was Interpreted by Mr Hope In Canada Safeway I agree wIth Ius InterpretatIOn (page 347, emphasIs added) ThIS understandIng of Weber subsequently was adopted by the Supreme Court of Canada as well as by the Ontano Court of Appeal Mr JustIce Bastarache spoke for the Supreme Court In Board ofCommlsslOners of the Clty of Regzna v Regzna Polzce AssoczatlOn Inc , [2000] 1 S C.R. 360 SImply, the decIsIOn-maker must detennIne whether, havIng examIned the factual context of the dIspute, ItS essentIal character concerns a subJect matter that IS covered by the collectlve agreement It IS clear that the collectIve agreement need not provIde for the subJect matter of the dIspute exphcltly If the essentIal character of the dIspute anses elther explzcltly, or lmplzcltly, from the InterpretatIOn, apphcatIOn, admInIstratIOn or vIOlatIOn of the collectIve agreement, the dIspute IS wltlun the sole JunsdlctIOn of an arbItrator to decIde (page 373) To say that the subJect of a dIspute IS "covered by the collectIve agreement" and anses from It "eIther exphcltly or llnphcltly" IS another way of saYIng the matter IS governed by an express or Imphed term of that agreement In London Life Insurance Co v Dubreuzl Brothers Employees Assoc (2000),49 O.R. (3d) 766, the Court of Appeal explaIned the rulIng In Weber by USIng the preCIse tennInology of Imphed nghts under a collectIve agreement Mr JustIce Goudge wrote Both Weber and Regzna Polzce AssoczatlOn Inc provIde that the arbItrator's exclusIve JunsdlctIOn extends to dIsputes that anse not Just expressly, but also znferentzally out of the collectIve agreement. Those that arzse lmplzcltly must, nonetheless, be rooted zn that agreement New Brunswlck v 0 'Leary, [1995] 2 S.R.C 967 IS such a case There, McLachhn J found that the collectIve agreement conferred an Imphed nght on the employer to claim for breach of the employee's express 8 obhgatIOn to ensure the safety and dependablhty of the employer's property and eqUIpment Hence, where the essence of the dIspute was the employee's failure to preserve the employer's property and eqUIpment, It was found to fall wltlun the exclusIve JunsdlctIOn of the arbItrator It was the lmplzed rzght of the employer contaIned In the collectIve agreement that made the jurzsdlctlOnal difference (page 773, emphasIs added) The Court of Appeal hmlted arbItral JunsdlctIOn to matters governed by the express or Imphed terms of a collectIve agreement and stated tlus lllnltatIOn IS consIstent WIth the outcome In 0 'Leary ThIS conceptIOn of the role of arbItratIOn IS also consIstent WIth the outcome In Weber AddressIng the facts In that case, Madame JustIce McLachhn wrote The [employer's] act oflunng pnvate InvestIgators who used deceptIOn to enter [Weber's] famIly home and report on hlln does not, he contends, relate to the InterpretatIOn, apphcatIOn or admInIstratIOn of the collectIve agreement Isolated from the collectIve agreement, the conduct complaIned of In tlus case mIght well be argued to fall outsIde the nonnal scope of employer-employee relatIOns However, placed In the context of that agreement, the pIcture changes The prOVISIOns of the agreement are broad, and expressly purport to regulate the conduct at the heart of tlus dIspute ArtIcle 2 2 of the collectIve agreement extends the gnevance procedure to "[a]ny allegatIOn that an employee has been subJected to unfair treatment or any dIspute ansIng out of the content of tlus Agreement " The dIspute In tlus case arose out of the content of the Agreement Item 13 0 of Part A of the Agreement provIdes that the "benefits of the Ontano Hydro SIck Leave Plan shall be consIdered as part of tlus Agreement" Under the plan, Hydro had the nght to decIde what benefits the employee would receIve, subJect to the employee's nght to gneve the decIsIOn In the course of makIng such a decIsIOn, Hydro IS alleged to have acted Improperly That allegatIOn would appear to fall wltlun the phrase "unfair treatment or any dIspute 9 anSIng out of the content of [the] Agreement" wltlun ArtIcle 2 2 (page 963-965, emphasIs added) In short, the Supreme Court charactenzed management's Impugned treatment of Mr Weber as beIng "expressly" regulated by specIfic artIcles In the collectIve agreement Based upon tlus charactenzatIOn, the Court held Weber's claim fell wltlun the exclusIve JunsdlctIOn of an arbItrator (For present purposes, the vahdlty of the Court's charactenzatIOn of the dIspute In Weber, as beIng governed by the collectIve agreement, IS not relevant The accuracy of tlus charactenzatIOn IS challenged In M. Plcher, "DefinIng the Scope of ArbItratIOn The Impact of Weber" [1999-2000] Labour ArbItratIOn Yearbook 99 ) IV The foregoIng reVIew of the case law leads me to conclude that the exclusIve JunsdlctIOn of arbItratIOn Includes all controverSIes WIth a factual basIs governed by the express or Imphed terms of a collectIve agreement but extends no further The Supreme Court's decIsIOn In Weber dId not broaden the range of dIsputes comIng wltlun the scope of arbItratIOn, even though the Court curtailed the range of dIsputes Judges may decIde ThIS pOInt can be Illustrated by consldenng two types of conflIcts between an employer and employees governed by a collectIve agreement In the first, the factual basIs of the dIspute gIves nse to an alleged vIOlatIOn of some common-law nght but not to any allegatIOn that the collectIve agreement has been breached. The courts had exclusIve JunsdlctIOn over matters of tlus sort before Weber and contInue to have It after The Supreme Court's decIsIOn does not gIve 10 arbItrators any role In tlus context The Impact of Weber IS hmlted to another sort of controversy, one where the factual basIs of the dIspute gIves nse to both an alleged contraventIOn of the collectIve agreement and an allegatIOn of some common-law wrong In tlus scenano before Weber, an arbItrator had authonty to Interpret and apply the express and Imphed tenns of the agreement, and a court could entertaIn an actIOn at common law based on the same facts The Supreme Court's decIsIOn precludes aJudge from plaYIng any part In the resolutIOn of such a conflIct and relegates It to the exclusIve JunsdlctIOn of arbItratIOn Now all legal Issues arISIng from a common set of facts must be adJudIcated In the sIngle forum of arbItratIOn Weber does not wIden the range of dIsputes whIch may be arbItrated, but It does alter In two ways the role of arbItrators when deahng wIth the sorts of controverSIes WIth whIch they always have dealt The Supreme Court's decIsIOn gIves arbItrators a larger set of legal tools to use In fasluonIng resolutIOns to these problems For example, an arbItrator may award damages for defamatIOn based upon facts whIch also constItute a vIOlatIOn of a collectIve agreement (See Bhadurza and Toronto Board of EducatlOn, [1999] O.J 582 (C A.) holdIng only an arbItrator could entertaIn a claim for defamatIOn based upon allegatIOns whIch resulted In a teacher's tennInatIOn ) The second Impact of Weber on the role of arbItrators IS less ObVIOUS than the first but Just as sIgmficant By empowenng arbItrators to apply the common law, the Court assIgned to them the task of detennInIng to what extent tlus Judge-made law has been dIsplaced or modIfied by a collectIve agreement In a case hke 0 'Leary, an arbItrator wIll be the one to decIde whether a contractual prohibItIon agaInst dlsclphne wIthout Just cause 11 modIfies or negates an employer's common law nght to be compensated for a loss caused by the neghgence of an employee V As noted above, the Intenm award held the facts alleged would not constItute a breach of the collectIve agreement The relevant portIOn of that award states I begIn my analysIs wIth artIcle 2 1 entItled "Management RIghts" The relevant portIOn states F or the purpose of tlus Central CollectIve Agreement and any other CollectIve agreement to whIch the partIes are subJect, the nght and authonty to manage the busIness and dIrect the workforce, IncludIng the nght to make reasonable rules and regulatIOns shall be vested exclusIvely In the Employer It IS agreed that these nghts are subJect only to the prOVISIOns of tlus Central CollectIve Agreement and any other CollectIve agreement to whIch the partIes are subJect Counsel for the umon submItted the employer contravened tlus artIcle by faIhng to enforce eXIstIng "rules and regulatIOns" In a manner whIch would have prevented the property damage for whIch compensatIOn IS claimed. ArtIcle 2 1 was mentIOned by counsel dunng her opemng statement but she dId not return to It In argument The essence of the management nghts artIcle IS an acknowledgement that "the nght and authonty" to do certaIn tlungs IS "vested exclusIvely" In the employer, so long as the dOIng of these tlungs does not vIOlate any other prOVISIOn of the collectIve agreement In my VIew, there IS notlung In the language of tlus artIcle to suggest It places the employer under any sort of posItIve obhgatIOn to protect the property of employees The umon rehes prllnanly upon artIcle 9 1 deahng wIth health and safety whIch states The employer shall contInue to make reasonable prOVISIOns for the safety and health of ItS employees dunng the hours of theIr 12 employment It IS agreed that both the Employer and the Umon shall co-operate to the fullest extent possible In the preventIOn of accIdents and In the reasonable promotIOn of safety and health of all employees ThIS artIcle IS IdentIcal to the contract prOVISIOn apphed In two deCISIOns oftlus Board upon whIch the umon rehes OPSEU (Gonneau) and Mlnlstry of Attorney General, FIle 227/81, decIsIOn dated February 1, 1982, (Tephtsky), and OPSEU (Kelly) and Mlnlstry of Cor rectlOna I Servlces, FIle 371/84, decIsIOn dated Apnll9, 1987 (Saltman) In short, as noted by counsel for the employer In her wntten submIssIOn, compensatIOn for property damage was awarded In Gonneau and Kelly because It flowed dIrectly from carelessness whIch vIOlated the collectIve agreement by placIng the gnevor at nsk of bodIly InJury The language of artIcle 9 1 leaves no doubt that It creates an obhgatIOn to protect employees The absence of any reference to property IndIcates tlus artIcle does not place the employer under an Independent obhgatIOn to protect theIr belongIngs To recover compensatIOn for damage to an employee's property, the umon must demonstrate the loss resulted from carelessness whIch contravened the agreement by placIng the employee In penl In a scenarIO of tlus sort, artIcle 9 1 IS vIOlated and, accordIng to the decIsIOns In Gonneau and Kelly, the employee IS entItled to compensatIOn for property damage floWIng dIrectly from such a vIOlatIOn TurnIng to the case at hand, I agree wIth counsel for the employer that the facts alleged are sIgmficantly dIfferent than the scenano addressed In Gonneau and Kelly Here the umon dId not suggest the seven gnevors themselves were endangered by any failure on the employer's part to take reasonable precautIOns In the parkIng lot Indeed, there was no suggestIOn that any employee was In the vlclmty of the lot when the vandals were there Rather, the umon alleges only that adequate measures were not Implemented to protect the gnevors' automobIles Any failure to provIde appropnate safeguards for property, standIng alone, could not constItute a vIOlatIOn of artIcle 9 1 (pages 3 to 6) VI 13 My JunsdlctIOn does not extend beyond controverSIes WIth a factual basIs governed by the express or Imphed tenns of the collectIve agreement As the Interlln award held the facts alleged by the gnevors would not constItute a breach of the agreement, I aIn wIthout JunsdlctIOn to entertaIn theIr gnevance It IS dIsmIssed. Dated at Toronto tlus lih day of November, 2002 RIchard Brown VIce-Chair