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HomeMy WebLinkAbout2002-0840.Pinazza.04-08-09 Decision Crown Employees Commission de ~~ Grievance Settlement reglement des griefs Board des employes de la Couronne ~-,... Suite 600 Bureau 600 Ontario 180 Dundas Sl. West 180 rue Dundas Ouest Toronto Ontario M5G 1Z8 Toronto (Ontario) M5G 1Z8 Tel. (416) 326-1388 Tel. (416) 326-1388 Fax (416) 326-1396 Telec. (416) 326-1396 GSB#2002-0840 2002-2223 2002-3002,2003-3131 2003-3132,2003-3133 UNION#2002-0135-0007 2002-0359-0042,2002-0359-0045 2002-0359-0046 2002-0359-0044 2002-0359-0043 2003-0135-0001 2003-0438-0022,2003-0438-0023 2003-0438-0024 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN Ontano Public Service Employees Umon (Pmazza et al ) Grievor - and - The Crown m Right of Ontano (Mimstry ofCommumty Safety and CorrectiOnal Services) Employer - and - Mark Keatmg Third Party BEFORE Bram Herlich Vice-Chair FOR THE UNION David Wnght Ryder Wnght, Blair & Doyle Bamsters and SOliCitorS FOR THE EMPLOYER David Strang, Actmg Associate Director and Suneel Bahal, Counsel Management Board Secretanat FOR THE THIRD Andrew F Camman PARTY Polishuk, Camman and Steele Bamsters and SOliCitorS HEARING March 24 May 28 June 28 & 29 2004 2 DeCISIon These proceedmgs concern ten different gnevances filed on behalf of mne different bargammg umt employees Each gnevance impugns the conduct ofMr Mark Keatmg. Mr Keatmg is and, at the relevant times, was, a managenal employee of the Mimstry He is currently assigned to the Windsor Jail but was previOusly on site at the Rideau CorrectiOnal and Treatment Centre and, pnor to that, at the Whitby Jail The umon asserts that Mr Keatmg has engaged m conduct which amounts to sexual harassment of each of the gnevors (and one other non-bargammg umt mdividual) As a result of that conduct, the umon urges the conclusiOn that the employer has failed to live up to itS statutory and collective agreement obligatiOns Among the remedies bemg sought by the umon is an order from this Board termmatmg Mr Keatmg's employment with the Mimstry This result is Said to be necessary to effect an appropnate remedy for the alleged viOlatiOns Alternatively the umon seeks an order that Mr Keatmg be removed from his positiOn as an OM16 at the Windsor Jail and be placed m another positiOn devOid of supervisory powers over any employee In the further alternative, the umon seeks an order that Mr Keatmg be reassigned to another mstitutiOn. The collective bargammg parties agreed that Mr Keatmg, m View of the remedies bemg sought by the umon, was entitled to be a party to these proceedmgs And although he imtially appeared on his own behalf, Mr Keatmg did subsequently retam counsel who participated m these heanngs on his behalf and was mvolved both m the procedural agreement arnved at by the parties (to be shortly descnbed) and the legal arguments made before this Board pursuant to that agreement. Pnor to arnvmg at the procedural agreement, the parties made a number of efforts to resolve these matters And although I was not advised as to the specific proposals that were exchanged and considered, the parties mdicated that, while they were unable to consummate an agreement, some progress had made m that regard. Further and although perhaps for different reasons as between the three parties, a consensus emerged that were the Board to provide answers to certam discrete issues, there might be some renewed collective appetite to revisit certam settlement optiOns 3 The allegatiOns which are at the heart of these proceedmgs mvolve mne different gnevors at three different Mimstry facilities and span a penod well m excess of three years There can be little doubt that should these matters need to proceed through a full and complete heanng, vast quantities of this Board's resources, not to mentiOn those of the parties (for whom the currency ofresultmg expenditures will mclude time money and emotiOnal energy) will have to be consumed Of course, such are the costs of litigatiOn - albeit sigmficantly magmfied m the mstant case given the scope of the gnevances as well as the emotiOnally charged atmosphere which typically permeates cases of this nature But while the parties clearly recogmze that the difficulties attendant with litigatiOn do not provide a basis for itS evasiOn, they have also wisely m my View elected to adopt an imtial procedure which may (or admittedly may not) save all concerned the sigmficant costs associated with a full heanng. To this end, the umon has prepared a comprehensive Statement of EVidence which (includmg itS supplementary matenals) compnses well m excess of 40 pages of particulars Said to support itS allegatiOns For the purposes of this decisiOn only the parties have agreed to accept the facts asserted m the umon' s Statement of EVidence as true and provable Based on those assumed facts, the umon asserts that the remedial response(s) it seeks are appropnate and asks me to so find. The employer advanced two pnncipal arguments First, although it conceded that this Board does have the remedial authonty to direct that the employer move Mr Keatmg from his current positiOn and/or msure that he not supervise particular employees, a strenuous argument was advanced challengmg the Board's JunsdictiOn to direct that Mr Keatmg be disciplined or discharged from his employment. In any event and even if the Board does have the authonty to order the dracoman remedies sought by the umon, this is not an appropnate case for such a response For his part, Mr Keatmg raised yet another issue It was asserted that, even acceptmg all of the umon' s asserted eVidence as true and provable, it does not establish conduct which constitutes sexual harassment withm the meamng of the collective agreement or the Human Rights Code Whatever else may be Said about the impugned conduct (and it was candidly 4 conceded that at least some of the conduct complamed of was mappropnate), if it does not constitute sexual harassment, there is no foundatiOn for any of the gnevances which are all grounded m Article 22 10 of the collective agreement, a senes of articles which deal with sexual harassment and, mter alia, provide employees with the nght to freedom from it m the workplace Thus, Mr Keatmg advances somethmg akm to a non-sUit motiOn or perhaps more accurately a no pnma facie case motiOn m relatiOn to the facts asserted by the umon. In support of that positiOn, counsel thoroughly and pamstakmgly reviewed all of the asserted eVidence with a View to persuadmg me that the impugned conduct did not amount to sexual harassment. Further while Mr Keatmg (although occasiOnally and mCidentally refernng to the employer's argument with approval) did not take great issue With the Board's JunsdictiOn to grant the remedies sought, he argued strenuously that even if his conduct did constitute sexual harassment, the remedies sought by the umon were mappropnate In response to Mr Keatmg's submissiOns, the employer conceded that some ofMr Keatmg's conduct actually did or might well be found to constitute sexual harassment. Regardless of that, it renewed itS submissiOn that however the conduct is charactenzed, it does not ment the remedial response urged by the umon. Thus, there are three issues With which this decisiOn deals 1 Do the facts asserted by the umon fail to disclose a pnma facie case to establish that (at least some of) Mr Keatmg's conduct constitutes sexual harassment? 2 If not, does this Board possess the JunsdictiOn to provide the remedial response urged by the umon? 3 If so are or might (all or some of) the remedies sought by the umon be appropnate? Before proceedmg to deal with these issues, a number of comments are m order This decisiOn, for reasons which I shall now outline, will undoubtedly fail to disclose the ngour care and attentiOn all counsel devoted to the issues decided herem. I have already 5 mdicated that the umon's Statement of EVidence was thorough and comprehensive In additiOn, counsel each prepared legal memoranda of their arguments These were shared between the parties pnor to the oral heanng. Similarly the volummous authonties which were referred to were shared between the parties and filed with the Board m advance of the commencement of the heanng. And finally counsel were thorough and ngorous m the oral presentatiOns of their arguments, which consumed the better part of two days of heanng time Each of the parties, through their respective presentatiOns, made it clear that there are important issues at stake m this case - both from the perspective of the challengmg legal issues which were engaged and, as important, for the practical consequences the adJudicatiOn of this matter will have on itS participants The case raises important issues which were treated with the sombre and profound attentiOn they ment. However notwithstandmg the sigmficant care and energy mvested m the presentatiOns of all counsel, I have determmed to be somewhat economical m most portiOns of these reasons, certamly to the extent that this decisiOn is not a final one I have chosen this route for a number of reasons but chiefly because m the context described earlier of how and why the parties entered mto the procedural agreement which has resulted m this award, I believe it would be mconsistent with the parties' shared goals if this decisiOn were, m any way to be seen to impair their ability to fairly litigate the case and, perhaps more importantly agam given the context, to mhibit their capacity to meamngfully negotiate an acceptable resolutiOn of the matter m View of the conclusiOns herem. I am also satisfied that this approach is consistent With the submissiOns of counsel generally (both m open heanng and m pnvate seSSiOns held m the matter) and certamly not mconsistent with the Views of anyone of them The chief exceptiOn to this approach is With respect to the JunsdictiOnalissue This is a distmct legal questiOn whose determmatiOn, unlike the other issues enumerated herem, does not depend chiefly or at all upon the assessment (assumed or otherwise) of the conduct of any of the participants In that context, and agam consistent With the submissiOns of counsel, I am satisfied that providmg my full reasons with respect to this issue is unlikely to result m any of the undesirable consequences adverted to earlier 6 I turn now to the three questiOns before me Do the union's "pleadin2s" fail to disclose a prima facie case of "sexual harassment"? As already mdicated, the parties were exceedmgly thorough m their legal and factual arguments m all aspects of the case The legal context of the concept of sexual harassment and whether and how the facts asserted by the umon might (or not) fit withm those parameters were canvassed at length. I was referred to sources and authonties rangmg from the relevant collective agreement, the Ontario Human Rights Code the Canada Labour Code and decisiOns of disparate admimstrative tnbunals and courts up to the highest authonty m the land. Among the cases referred to were Aragona v Elegant Lamp Co Ltd (1982) 3 C .H.R.R. D/l109 (Ratushny) Bailey v Anmore (1992) 19 C.H.R.R. D/369 Wigg v Harrison [1999] N S.H.R.B.I.D No 2 (Tramor) Rathlou v Melnychuk (c 0 b Parksville 1-Hr Photo) [1996] B C C.H.R.D No 44 (Mahil) Yorke v Cyprus Pizza [1985] B C C.H.R.D No 3 (Wilson) Singh v Canada (Canadian Human Rights Commission) (re Canada Post Corp) [2000] F C J No 940 (Fed. Ct.) (Reed) and, of course, the semmal pronouncements of the Supreme Court of Canada m Janzen v Platy Enterprises Ltd [1989J 1 S.CR. 1252 as well numerous scholarly works. I will not reView the facts asserted by the umon. They are contamed m specific documents familiar to the parties I will do no more than provide my conclusiOn to the specific questiOn (and no other) which is presented to me The umon argues that the asserted facts and all of the relevant events detailed therem amount to sexual harassment. The employer conceded that, at least some of the events adverted to do or might well be found to amount to sexual harassment. Mr Keatmg asserts that none of the events as described m the umon's asserted facts can possibly give nse to any conclusiOn that the impugned conduct amounts to sexual harassment. 7 I am not persuaded that it is impossible to arnve at the conclusiOn that (at least some of) Mr Keatmg's conduct amounted to sexual harassment and I must, therefore, decline to allow his motiOn that these gnevances be dismissed on that basis For the sake of clanty I will repeat what I have and have not decided. I have not decided that any or all ofMr Keatmg's conduct does or does not amount to sexual harassment - that determmatiOn may have to aWait further proceedmgs m this matter What I have decided - and to put the matter somewhat colloqUially - perhaps all that I have decided is that the umon' s case (agam, based on itS pleadmgs) is not so Yf,eak as would cause me to dismiss it at thiS stage The no pnma facie case motiOn brought on behalf ofMr Keatmg is hereby dismissed. Does the Grievance Settlement Board have the jurisdiction to 2rant the remedies sou2ht bv the union? For the purposes of clanty it will be useful to be preCise about the parameters of the issue Jomed between the parties under this headmg. As already noted, counsel for Mr Keatmg did not participate actively m this aspect of the case, prefemng to focus his attentiOn on the other two issues before me And while the employer took a clear positiOn that the umon's pnncipal remedial goal-i e the termmatiOn ofMr Keatmg's employment with the Mimstry -is beyond the JunsdictiOn of this Board, that obJectiOn did not apply equally or at all, to the umon's alternative proposals for remedy In itS alternative pOSitiOn, the umon submitted that Mr Keatmg be removed from his OM16 pOSitiOn at the Windsor Jail and be placed m another pOSitiOn devOid of supervisory powers over any employee And m itS final alternative, the umon seeks to have Mr Keatmg removed from his pOSitiOn at the Windsor Jail and placed m another mstitutiOn For itS part, the employer acknowledged that, m appropnate circumstances, thiS Board has the authonty to direct that a managenal employee be transferred and/or be precluded, by order of this Board, from exercismg supervisory functiOns m relatiOn to particular employees Indeed, the employer pomted to and endorsed the response of this Board mAnderson, 3842/92 8 (Stewart) - where the Board directed that a supervisor who had engaged m sexual harassment be removed from his supervisory positiOn m the particular work environment - as a "proper exercise of this Board's JunsdictiOn" While there may not be a complete identity as between the alternative remedies sought by the umon and the acknowledgements of the employer as to this Board's remedial authonty I am satisfied that any differences between the parties may simply be semantic but, m any event, do not amount to JunsdictiOnalissues Thus, I am satisfied that there is no issue or at a mimmum, no real JunsdictiOnal dispute between the parties as to thiS Board's authonty to grant the alternative remedies sought by the umon. There is, of course, a clear JunsdictiOnalissue which has beenJomed between the (collective bargammg) parties To the extent that the umon's pnmary remedy seeks to have Mr Keatmg removed from his employment with the Mimstry the employer asserts that such a remedial response is beyond this Board's JunsdictiOnal capacity To put it perhaps more directly the employer contends that this Board does not have the authonty to direct the discipline or discharge of managenal employees The issue raised m this case is not novel, although the employer asserts that there has been a suffiCiently sigmficant change to the legal and legislative context to warrant a fresh evaluatiOn of the Board's Junsprudence Undoubtedly the fulcrum which positiOns the discussiOn of this issue is found m this Board's decisiOn m HOYf,e Dalton Loach, 3155/92 et al (Dissanayake) a decisiOn which therefore ments close attentiOn. In that case, the parties asked the Board to determme, m a prelimmary fashiOn, the followmg questiOn 9 Does the Gnevance Settlement Board have JunsdictiOn to direct the employer to take any specific disciplinary actiOn agamst a member of management, as a remedy m a sexual harassment/discnmmatiOn case') The employer m that case (as it does now before me) argued that under the terms of the Public Service Act, the authonty to discipline public servants lies with the Deputy Mimster or his designate not with this Board. Reliance was also placed on the fact that exclusive managenal functiOns were, under (smce revoked) terms of the Crown Employees Collective Bargaining Act, equally beyond the JunsdictiOn of this Board. The discharge of a managenal employee must be viewed as "pumtive" simply by virtue of the impact it would have on the person bemg discharged - and while itS legitimate mqumes may lead to a reView of discipline imposed by the employer m vanous contexts, the Board does not have the authonty to imtiate the pumshment of managenal (or other) employees Fmally the spectre of "double Jeopardy" was mvoked - m that case (as m the one before me), some discipline (short of discharge) had already been imposed by the employer To have this Board now impose further and more severe discipline would be to unfairly subJect the affected manager to double Jeopardy The umon's positiOn m the HOYf,e Dalton Loach case was relatively simple It relied on the well-established propositiOn that the eXistence of a nght implies, mdeed, reqUires the availability of a remedy for itS vmdicatiOn. In that regard, the Board was referred to the DiVisiOnal Court's affirmatiOn of that propositiOn m the specific context of thiS Board's remedial arsenal (OPSEU and Carol Berry v Ontano (Mimstry of Commumty and Social Services) (1986), 15 0 AC 15) Simply put, thiS Board must have the remedial latitude necessary to repair a viOlatiOn of the collective agreement m order to fulfil itS mandate In assessmg the competmg positiOns put before it, the Board reformulated the questiOn m the followmg fashiOn whether the employees' nght to gneve and the statutory mandate of thiS Board to decide all gnevances finally and effiCiently must yield to the reservatiOn of the management functiOns to the employer or the correspondmg restnctiOn on the Board's JunsdictiOn') 10 Forgmg a novel and mterestmg linkage between JunsdictiOn and remedy the Board offered the followmg (at page 20) m our View whether a particular remedial order is absolutely necessary to finally and effectively remedy a gnevance is directly linked to the questiOn of whether the Board has JunsdictiOn to grant that order If the gnevor can be redressed without such an order the grantmg of such an order will not be "necessanly mCidental" to the employees' nght to gneve and the Board's statutory duty to finally decide gnevances, as contemplated by the courts It would rather be an mcursiOn by the Board mto the prohibited zone of management nghts Similarly if such an order is not absolutely necessary to remedy the gnevance, it takes the flavour of pumtive actiOn as opposed to remedial actiOn. In other words, it is the necessity of a particular order to remedy a gnevance, which makes it a remedial order withm the Board's powers rather than an unauthonzed exerCise of management functiOns or pumtive actiOn. The Board then summanzed itS conclusiOn as follows (at page 22) ifbased on all of the eVidence the Board concludes that it is absolutely necessary to direct the employer to take specific disciplinary actiOn agamst a member of management, m order to remedy a gnevance, it has the JunsdictiOn to do so Because such an order is absolutely necessary it is remedial m nature, and withm the Board's JunsdictiOn. The fact that such an order may have the mCidental result of penalizmg the member of management, and of encroachmg mto areas reserved to the employer as exclusive management nghts, does not mean that the Board must decline to exerCise itS authonty to remedy a viOlatiOn of the collective agreement found to eXiSt. The other side of the com is that if the Board is satisfied that other remedial orders can reasonably be expected to provide full redress, the directiOn of specific discipline takes the flavour of a pumtive directiOn which will be beyond the JunsdictiOn of the Board. The arguments and positiOns placed before the Board m the HOYf,e Dalton Loach case were renewed and augmented before me The umon remmded us that at least smce the deCiSiOn m Courtenay 912/88 (Wilson) this Board has consistently affirmed itS JunsdictiOn, m the appropnate case and Circumstances, to direct the type of remedy here advocated (in additiOn to the Courtney Anderson and HOYf,e Dalton Loach cases, supra, see also Smith McKinnon 545/94 et al (Finley) and Naumenko 613/94 (Mikus)) And, of course, we were also remmded of the oft-cited deCiSiOn of thiS Board m 11 Blake 1276/87 (Shime), a case which has promoted adJudicative consistency at thiS Board by imbumg itS decisiOns with sigmficant precedential value not to be tnfled with but for exceptiOnal Circumstances And finally followmg the decisiOn m the HOYf,e Dalton Loach case some arbitral authonty has now emerged m the pnvate sector to support the umon' s positiOn regardmg the availability of the remedy sought (see Re Tenaquip Ltd and Teamsters Canada, Local 419 (2002),112 LAC (4th) 60 (E Newman) and National Steel Car Ltd v United SteelYf,orkers of America, Local 7135 [1988] O.L AA No 446 (Brunner)) The employer began by acknowledgmg this Board's mfrequent though consistent affirmatiOn of itS remedial authonty It was qUick to pomt out, however that despite these pronouncements, the power to discharge a managenal employee m a case of sexual harassment is one which thiS Board has never actually exercised. Among the arguments relied on by the employer are the followmg. Where the Gnevance Settlement Board is asked to exerCise the JunsdictiOn to dismiSS a managenal employee, the necessary grantmg of mdependent third party status to the potentially affected manager hmders the process of adJudicatiOn which is one deSigned to determme the nghts of the collective bargammg parties not those of managers Any difficulties the umon or mdividual gnevors may have with the conduct of mdividual managers should be dealt with m the usual fashiOn the umon must raise the issue With the employer who m turn, must exerCise itS management functiOns and prerogatives The umon should not be permitted to seek the mterventiOn of this Board to imtiate disciplinary proceedmgs agamst managers The employer also pomted to what might be descnbed as issues of procedural fairness from the perspective of the affected manager Related to thiS concern is the relatively recent legislative change concermng the compositiOn of this Board. Pnor to amendments m 1993 the Chair and Vice-Chairs of thiS Board were simply appomted by the Lieutenant Governor m Council And while that contmues to be the case, the statutory process now envisiOned by sectiOn 47 of the Crown Employees Collective Bargaining Act contemplates (though does not absolutely reqUire) the agreement of the employer and all participatmg trade umons m the selectiOn of the Chair and Vice-Chairs of thiS Board. It is suggested that thiS is now a process which more closely mirrors that routmely followed m labour arbitratiOn outSide the public service The 12 process is one designed for and "owned" by the mstitutiOnal collective bargammg parties -it is not one which has been established to govern or protect the nghts of affected managers There is, however such a process m place Whether at common law or under the terms of the Public Service Act (and the regulatiOns thereunder), a managenal employee facmg discharge has access to an adJudicative process designed to safeguard his nghts To have those nghts determmed mstead by this Board, even with the full participatiOn nghts which must be afforded to the affected manager is to depnve him of his statutory and common law protectiOns It is perhaps a vanatiOn on this concern which gives nse to the spectre of double Jeopardy raised by the employer The pnncipal pomt, however (and this speaks to the essence of the employer's concern) is that the discipline and discharge of managenal employees is, not only by Virtue of established labour relatiOns conventiOns, but by the specific applicatiOn of sectiOn 22 of the Public Service Act, a functiOn reserved to the Deputy Mimster The legislatiOn does not contemplate that bargammg umt employees, trade umons or this Board have any specific role to play m the imtiatiOn of that functiOn. Should this Board permit that to occur it is not difficult to enViSiOn unfortunate scenanos which may approach or cross the border of procedural fairness For example, m a case where the employer and a manager have already agreed and implemented a disciplinary penalty - the manager ought not to be reqUired to face potential double Jeopardy m Circumstances where a bargammg umt employee and their umon are of the View that the discipline imposed was msufficient. Other undeSirable scenanos also readily emerge and need not be restncted to managenal employees Where a bargammg umt employee, their umon and the employer agree on the impositiOn of a disciplinary penalty ought another employee, perhaps m a different bargammg umt, be permitted, through access to this Board, to seek to mcrease the settled sanctiOn or replace it With dismissal? Fmally the employer also buttressed itS argument by refemng to the deCiSiOn of the Supreme Court of Canada m Weber v Ontario Hydro [1995] 2 S C.R. 929 and other cases which have followed m itS wake (see Regina Police Assn. Inc v Regina (City) Board of Police Commissioners, [2000] 1 S C.R. 360 London Life Insurance Co v Dubreuil Bros. Employees Association (2000),49 O.R. (3d) 766 (Ont. c.A.) 13 Essentially m its effort to summanze the law as it has evolved from the Weber case the employer advocates an "exclusive JunsdictiOn model" to support itS view that any exclusive JunsdictiOn With respect to the discipline or dismissal of managenal employees must be respected and cannot be seen to reside m this Board. The first questiOn I must decide is whether the kmd of exceptiOnal Circumstances contemplated (but not specifically defined) m the Blake deCiSiOn eXist so as to warrant a fresh look at the Board's Junsprudence It is not clear to me that any "exceptiOnal circumstances" eXist which warrant a reassessment of the Board's Junsprudence I note first of all that the Board m the Blake case specifically reJected the "mamfest error" theory as too lax a standard to warrant mterfenng with settled Board Junsprudence In that context and while the Board declined to specifically enumerate the mgredients of "exceptiOnal circumstances" it clearly placed the onus on the party seekmg reView to establish those exceptiOnal Circumstances One can only conclude that Circumstances which truly clearly and unambiguously ment the descnptiOn of exceptiOnal are the type contemplated by the Board. What then does the employer identify as amountmg to the exceptiOnal Circumstances reqUired for this Board to reVisit itS pnor rulings? We were pomted to certam changes m both the legislative and legal context smce the Board's deCiSiOn m the HOYf,e Dalton Loach case On the legislative front, the employer pomts to changes m the compositiOn and, more specifically the method of appomtment of adJudicators at this Board. I am not satisfied that this legislative change is one which either reqUires or warrants this Board to re-evaluate itS pnor rulings on the questiOn before me (Indeed, the Board might have been mclined to take offiCial notice that thiS aspect of the legislative change may amount, to some extent, to little more than a codificatiOn of past practice In any event, as far as OIC appomtments of Vice-Chairs are concerned, even the predecessor legislatiOn reqUired the Lieutenant Governor m Council to SOliCit and consider the Views of each bargammg agent while retammg the ultimate authonty to appomt, an authonty which contmues to be reserved to the Lieutenant Governor m Council under the current scheme) 14 It is difficult to see how this relatively margmallegislative change is one that gives nse to the opportumty or necessity for this Board to reassess itS Junsprudence on the pomt before me Even more sigmficant, however when one assesses the profile of this Board both before and after the 1993 amendments, a similar result obtams Indeed, when one considers some of the specific reflectiOns of thiS Board m the Blake case - obViOusly wntten prior to the legislative change upon which the employer now relies - it is difficult to see how these observatiOns (at page 8 of the deCiSiOn) are any less applicable today But the Gnevance Settlement Board is one entity - it is not a senes of separately constituted boards of arbitratiOn. Under SectiOn 20 (1) of The Crown Employees Collective Bargammg Act there is "a Gnevance Settlement Board" - that is, one Board [see now SectiOn 7(3) which reqUires arbitratiOn of differences by the Gnevance Settlement Board and sectiOn 46 under which the Gnevance Settlement Board descnbed m the Blake deCiSiOn is "contmued"] Under SectiOn 20 (4) the Gnevance Settlement Board may Sit m two [or more] panels and under SectiOn 20 (6) a deCiSiOn of the maJonty of a panel is "the deCiSiOn" of the Gnevance Settlement Board [see now sectiOns 49 and 50 which, despite certam procedural mnovatiOns, make it clear that resultmg deCiSiOns contmue to be deCiSiOns of the "Board" and not those of ad hoc arbitrators] Thus each deCiSiOn by a panel becomes a deCiSiOn of the Board and m our opmiOn the standard of mamfest error which is appropnate for the pnvate sector is not appropnate for the Gnevance Settlement Board. The Act does not give one panel the nght to overrule another panel or to Sit on appeal on the deCiSiOns of an earlier panel Also given the volume of cases that are currently admimstered by thiS board, the contmuous attempts to persuade one panel that another panel was m error only encourages the multiplicity of proceedmgs and arbitrator shoppmg which m turn creates undue admimstrative difficulties m handling the caseload. I am not persuaded that the legislative changes referred to by the employer support the conclusiOn consequently urged. The legal developments pomted to are the deCiSiOn of the Supreme Court m Weber and the resultmg Junsprudence which has exammed the sometimes competmg roles of the Courts and admimstrative tnbunals and, mdeed, the questiOn of competmg, overlappmg or exclUSive JunsdictiOn as between vanous admimstrative tnbunals 15 For reasons upon which I shall elaborate only very bnefly below I am not persuaded that the wave of Junsprudence and mterest which has clearly been the legacy of the Weber decisiOn constitutes the "exceptional circumstances" which would reqUire or warrant this Board to reassess itS pnor decisiOns Thus, m View of the well-established pnnciples ofmstitutiOnalidentity and consistency which underlie this Board's long applied practice set out m Blake I am not persuaded that the Board ought to reconsider or depart from itS pnor decisiOns on the issue now before me I am satisfied that, m the appropnate case and where it is absolutely necessary to effect a meamngful remedy this Board's authonty mcludes directmg the employer to termmate the employment of a manager who has engaged m sexual harassment. It is not necessary to elaborate or otherwise articulate with any precisiOn what Circumstances would amount to the "appropnate case" for the exerCise of this JunsdictiOn. The questiOn before me now is whether this Board possesses that remedial JunsdictiOn m the appropnate case I am satisfied that it does Notwithstandmg this conclusiOn and largely out of deference to counsel who made elaborate and thoughtful presentatiOns which ment some comment, I am prepared to reflect bnefly on and amplify the reasomng m the HOYf,e Dalton Loach case with a View to mdicatmg why even if the Board were to now reassess itS deCiSiOn on the issue, the result might well be no different. I offer this skeletal View of the reasomng which might apply En route to answenng the JunsdictiOnal questiOn it is perhaps useful to pose and consider the policy questiOn - it can be formulated, most simply as follows To what extent, if at all, should this Board be mvolved m the discipline and discharge of managenal employees? The simplest answer is as little as possible And there is no doubt that, at least empmcally this Board has succeeded m that obJective for while the remedial JunsdictiOn has been theoretically confirmed, it has yet to be actually exercised. That empmcal reality flows, no doubt to some extent, from the manner m which the Board has chosen to descnbe the remedial authonty it possesses and, m particular the fashiOn m which it has linked itS JunsdictiOn to remedial necessity The Board's JunsdictiOn is Said to eXist, 16 not as some free-floatmg proxy for the normal exerCise of managenal functiOns, but only m the rare cases where its exerCise is absolutely necessary to effect an appropnate remedy There are, without doubt, a mynad of reasons why this Board's mvolvement m the discipline or discharge of mana genal employees is somethmg to be aVOided. The employer's arguments m this case have touched on many if not all - some predicated on the mtegnty of the arbitratiOn process, some on the legitimate concerns of the employer and others on the fairness to the affected managenal employee But if all of those concerns are conceived to constitute some kmd of irresistible force, the obJect which is itS target remams immovable This Board is charged, both by statute and by the collective agreement, With the task of providmg the final and bmdmg settlement by arbitratiOn of all differences between the parties ansmg from the mterpretatiOn, applicatiOn, admimstratiOn or alleged viOlatiOn of the collective agreement. There is no issue that, under the terms of the collective agreement and statute, the employer is obliged to msure that the workplace is free from sexual harassment. Where this obligatiOn has been breached and where it can be established that the removal or termmatiOn of the perpetrator(s) of the sexual harassment is absolutely necessary m order to effect a remedy and to vmdicate, preserve and msure the collective agreement nght, it might well be suggested that a failure by this Board to effect that remedy would amount to reviewable JunsdictiOnal error Indeed, while many of the doomsday scenanos posited by the employer (some of which were reviewed earlier m this decisiOn) undoubtedly cause potential concern, castmg the issue m the manner of the precedmg paragraph perhaps gives nse to competmg disqUietmg scenanos e g. ought the employer by virtue of the expedient of imposmg msufficient discipline on a managenal employee who has engaged m sexual harassment, be permitted to thereby preclude the umon from vmdicatmg collective agreement nghts because the discipline of managers is not/should not be the subJ ect of Gnevance Settlement Board proceedmgs? 17 From a policy perspective there is no lack of concerns which militate agamst the mvolvement of this Board m the discipline of mana genal employees However it is important to recall that such mvolvement is not the pnmary functiOn of this Board m any Circumstance And while the reasomng it has adopted may at times be remimscent of pre-Charter constitutiOnal analysis, this Board's mvolvement m such discipline is not the pith and substance of the Board's functiOmng even m a case where managers may have engaged m sexual harassment. It is, rather an mCidental (and to date, theoretical) result of the Board effectmg the remedies which are mtegral to itS chief and fundamental purpose of resolvmg differences under the collective agreement. And while the Board's potential exerCise of this remedial JunsdictiOn no doubt remams somewhat troubling and problematic the parties should be comforted by the Board's mstitutiOnalized restramt. The manner m which the Board has conceived of itS JunsdictiOn has msured that the floodgates have actually remamed securely closed only to be potentially opened ever so slightly m the rare and exceptiOnal case where remedial mtegnty so necessitates Fmally to return from the context of normative policy closer to the perspective of legal JunsdictiOnalissues, neither is it clear that the Weber deCiSiOn and itS progeny relied upon by the employer necessitate a different result. In the London Life case the matter at hand and the consequent mvolvement of the third party msurer was found simply to not emerge from the collective agreement. And m the Regina Police case there was a clearer (though perhaps still somewhat ambiguous) dividmg line between the JunsdictiOn of the two admimstrative tnbunals m questiOn. In the case before me one can accept that, presumptively questiOns relatmg to the discipline or discharge of a managenal employee are properly withm the realm of the statutory tribunal or court charged with such issues and not before this Board. Equally clear however is that this Board is charged with resolvmg differences between the collective bargammg parties Where such a resolutiOn reqUires and can only be achieved through the removal of that managenal employee from hiS employment, that is a result thiS Board may be reqUired to effect even if it mCidentally trenches on areas presumptively withm the JunsdictiOn of other bodies 18 In other words, even otherwise acceptmg the exclusive JunsdictiOn model advocated by the employer one cannot employ it to simply ignore this Board s exclusive JunsdictiOn to resolve all differences which anse under the collective agreement. These reasons suggest that, even if it were to effectively reconsider itS ruling m HOYf,e Dalton Loach, the Board's ultimate conclusiOn might well remam unchanged. Havmg regard to all of the foregomg, I am satisfied that all of the remedies sought by the umon m this case are potentially withm the JunsdictiOnal arsenal of this Board. Are or mi2ht the remedies sou2ht be appropriate? In answenng the final questiOn before me and for the reasons already discussed, I shall return to the more economical style used earlier m this decisiOn. Havmg considered the facts asserted and the submissiOns of the parties, I am not persuaded that the pnncipal remedy sought by the umon, i e that the employer be ordered to remove Mr Keatmg from his employment with the Mimstry is absolutely necessary m order to effect an appropnate remedy On the other hand, I am satisfied that the facts asserted by the umon, if established, and of course subJect to other eVidence which might be part of the proceedmgs, are such that the alternative remedies sought by the umon - i e that Mr Keatmg be removed from his positiOn as an OM16 at the Windsor Jail and be placed m another positiOn devOid of supervisory powers over any employee or that he be reassigned to another mstitutiOn - are remedies which might be appropnate m the Circumstances of this case 19 Summary The answers to the questiOns put before me are as follows 1 Do the facts asserted by the umon fail to disclose a pnma facie case to establish that (at least some of) Mr Keatmg's conduct constitutes sexual harassment? -No 2 If not, does this Board possess the JunsdictiOn to provide the remedial response urged by the umon? -Yes 3 If so are or might (all or some of) the remedies sought by the umon be appropnate? a. With respect to the pnmary remedy - No b With respect to the alternative remedies - They might be Dated at Toronto this 9th day of August 2004 ~.~,~ ~L~~~~~: .~ _. Bram Herlich Vice-Chair