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HomeMy WebLinkAbout2017-3409.Schnoflak.19-11-19 Decision Crown Employees Grievance Settlement Board Suite 600 180 Dundas St. West Toronto, Ontario M5G 1Z8 Tel. (416) 326-1388 Fax (416) 326-1396 Commission de règlement des griefs des employés de la Couronne Bureau 600 180, rue Dundas Ouest Toronto (Ontario) M5G 1Z8 Tél. : (416) 326-1388 Téléc. : (416) 326-1396 GSB#2017-3409 UNION#2017-0368-0552 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN Ontario Public Service Employees Union (Schnoflak) Union - and - The Crown in Right of Ontario (Ministry of the Solicitor General) Employer BEFORE Ken Petryshen Arbitrator FOR THE UNION Jane Letton Ryder Wright Blair & Holmes LLP Counsel FOR THE EMPLOYER Shiran Brener Treasury Board Secretariat Legal Services Branch Counsel HEARING October 30, 2019 - 2 - Decision [1] The grievance before me is dated December 26, 2017, and was filed by the Union on behalf of CO M. Schnoflak. In his grievance CO Schnoflak complained that management was in violation of articles 3 and 9 of the Collective Agreement (“OPSEU Agreement”), the Ontario Human Rights Code (“the Code”), the Workplace Discrimination and Harassment Policy, the Occupational Health and Safety Act and the Dignity in the Work Place Policy. The remedy requested on the grievance form is that he be made whole. The Union filed particulars in relation to the grievance and the Employer requested that paragraphs 25 and 26 in the statement of particulars be struck. This decision deals only with the Employer’s motion to strike out these two paragraphs from the statement of particulars. [2] One of the allegations made by CO Schnoflak is that the Employer discriminated against him by not permitting him to advance with promotions. He was unsuccessful in a job competition for an acting manager position. Paragraphs 25 and 26 of the particulars relate to that competition and read as follows: 25. The Grievor has been asked on numerous occasions to be a sergeant by several sergeants and deputies, including Sgt. Reagan, Sgt. Mariam, and Deputy Santos. On April 10, 2018 incoming Superintendent Kelly Joliguer phoned the Grievor at 9:40 am and asked if he was interested in being a manager. The Grievor put in for an interview and was interviewed by Sgt. (A) Mariam and Deputy Santos. Sgt. Buxton came into the interview as well. At the conclusion of the interview Sgt. Mariam and Deputy Santos looked at each other and then asked the Grievor if he could come off his accommodation. The Grievor asked why and said a specialty post such as Health and Safety, or Staff Training, Security fit his accommodation and they advised that they need people who can work the floor and that he would need to come off his accommodation. 26. After the interview CO2 Hottinger asked the Grievor how come he didn’t get the position when a warehouse worker with 6 months on the job got the position. [3] The essence of CO Schnoflak’s complaint is that he was denied the acting sergeant position because of a failure by the Employer to accommodate him, with the result that the Employer discriminated against him on the basis of his disability. The Employer’s position is that an arbitrator at the GSB does not have the jurisdiction to deal with this type of complaint since the essence of the complaint is about a matter not - 3 - covered by the OPSEU Agreement. Employer counsel submitted that article 22 of the OPSEU Agreement indicates that the grievance procedure is designed to deal with differences or complaints arising from the OPSEU Agreement and that CO Schnoflak’s right not to encounter discrimination on the basis of disability as set out in article 3 of the OPSEU Agreement is in relation to his rights with respect to matters covered by that Agreement. Counsel argued that CO Schnoflak’s discrimination complaint in connection with his efforts to secure an acting manager position is outside the scope of the OPSEU Agreement and that an Arbitrator appointed to hear a grievance under that Agreement has no jurisdiction to address the matters referred to in paragraphs 25 and 26 in the statement of particulars. In support of her submissions, Employer counsel relied on the following decisions: OPSEU (Dias) and Ministry of Revenue (1995), GSB No. 3479/92 (Gorsky); OPSEU (Ahmed) and Ministry of Transportation (2014), GSB No. 2013-2757 (Nairn); and, OPSEU (Campbell) and Ministry of Community Safety and Correctional Services (2018), GSB No. 2017-2694 (Anderson). [4] Union counsel made a considerable effort to convince me that I should not strike paragraphs 25 and 26 from the statement of particulars. She emphasized that Managers and the Superintendent encouraged CO Schnoflak to apply for a manager position with the knowledge that he had a disability that required an accommodation and that the Employer denied him the acting manager position because he required an accommodation. Counsel argued that this was a clear breach of article 3 in the OPSEU Agreement and the Code. Counsel submitted that the decisions relied on by the Employer should not be followed given the circumstances of the instant case. Counsel suggested that the Union should be permitted to call evidence on paragraphs 25 and 26 before I decided the jurisdictional issue. Union counsel referred me to the following decisions: OPSEU (Evangelista et al.) and Ministry of Attorney General (2011), GSB Nos. 2009-1091 et al. (Harris); OPSEU (Dobroff et al.) and Ministry of the Environment (2008), GSB Nos. 2003-0905 et al. (Dissanayake); and, OPSEU (Bousquet) and Ministry of Natural Resources (1991), GSB Nos. 541/90 et al. (Gorsky). [5] I can understand how CO Schnoflak would not appreciate management encouraging him to apply for a management position and then denying him the acting - 4 - manager position because he required an accommodation. However, as noted previously, the essence of his complaint is that management discriminated against him in relation to his attempt to secure an acting manager position outside of the OPSEU bargaining unit. After considering the submissions of counsel, I am satisfied that the Employer’s motion has considerable merit. In my view, this is not the type of situation where it would be appropriate to hear the evidence before deciding the jurisdictional issue. [6] The circumstances in the three decisions relied on by the Employer are similar to those in the instant case. They concern employee complaints about not obtaining a job outside of the bargaining unit due to discriminatory treatment. The grievor in OPSEU (Dias) complained that he had been denied an interview for a manager’s position due to discrimination. Vice-Chair Gorsky concluded that the discrimination provision did not apply to management decisions regarding positions outside of the collective agreement. He found the grievance to be inarbitrable because the Board did not have the jurisdiction to decide a grievance about the way management administered a competition for a management position. The grievor in OPSEU (Campbell) complained that the Employer failed to accommodate him when it did not permit him to complete training for an acting manager position because he had missed two days of training due to his disability. Arbitrator Anderson found that he was without jurisdiction to address the compliant because it was not about a position covered by the collective agreement. In OPSEU (Ahmed), the grievor was screened out of a competition for an Engineer position in the PEGO bargaining unit. The grievor claimed his treatment by the Employer was based on his age and race. Vice-Chair Nairn upheld the Employer’s preliminary objection by finding that she did not have the jurisdiction to entertain the grievance. She found that the real issue behind the grievance related to the proper administration of the PEGO collective agreement and was beyond the scope of the OPSEU collective agreement. [7] The decisions relied on by the Union do not involve circumstances where an employee grieved because he or she was denied a position outside of the OPSEU bargaining unit. The complaint in OPSEU (Evangelista et al.) centered on the - 5 - assignment of court reporters for bail hearings on weekends and statutory holidays at the Old City Hall Courthouse. Vice-Chair Harris rejected the employer’s position that there was no prima facie case to meet and concluded that the Board had the jurisdiction to hear and determine the grievances. In OPSEU (Dobroff et al.), the employer reclassified Air Quality Analysts (“AQA”) and Water Group Leaders (“WGL”) to the classification of Scientist 4. It then exercised its management right to temporarily assign only the WGLs to the Acting Geoscientist 4 position which resulted in the WGLs receiving a higher rate of pay than the AQAs. The Union took the position that the differential treatment was based on an improper exercise of management rights and was motivated in part by anti-union animus. Vice-Chair Dissanayake found that there was no basis for the Board to intervene with respect to the exercise of management’s discretion in that instance and that the evidence did not establish that the employer’s action was motivated by anti-union animus. In OPSEU (Bousquet), the grievor complained that the employer discriminated against him and acted in bad faith when it denied him training opportunities, thereby undermining his article 4.3 rights to be fairly considered for promotions. The employer argued that the Vice-Chair did not have jurisdiction to deal with this complaint because section 18 (1) (b) of the Crown Employees Collective Bargaining Act made “training and development” the exclusive function of management and provided that such a matter was not within the jurisdiction of the Board. In finding that the Board did have jurisdiction to hear the grievance, Vice- Chair Gorsky commented as follows: As noted above, if it could be demonstrated that the Employer had discriminated against the Grievor in denying him training and development opportunities under article 4, then its actions could not be said to have been carried out in good faith, for genuine government purposes. There is nothing in the collective agreement that requires the Employer to consider the advancement opportunities of employees. However, it cannot use its management rights under s. 18 (1) of the Act in a way which would amount to a deliberate attempt to interfere with an employee’s right to compete for a promotion. The Employer cannot deliberately tilt the field with a view to preferring one employee over another. However, where in good faith and for genuine government purposes an employee is denied a training or development opportunity, where the denial is not founded on a deliberate attempt to undermine an employee’s opportunities for promotion, the decision will not be interfered with. [8] The factual context and the legal issues in the above decisions relied on by the Union are quite different from the jurisdictional issue raised by the Employer in the - 6 - instant case. The subject matter in each of those decisions is about whether or not the grievors could enforce rights which the union argued were covered by the collective agreement and therefore within the jurisdiction of the adjudicator. The comments by the Vice-Chair in OPSEU (Bousquet) to the effect that management rights cannot be used in a way that would undermine an employee’s opportunity for promotions refer to promotions to positions in the bargaining unit and not to positions that are beyond the scope of the OPSEU Agreement. [9] As set out in article 22.1 of the OPSEU Agreement, my jurisdiction is limited to “…any complaints or differences between the parties arising from the interpretation, application, administration or alleged contravention of this Agreement, including any question as to whether a matter is arbitrable.” There is no provision in the OPSEU Agreement which gives an employee covered by that Agreement a right to apply for a management position. The complaint about discriminatory treatment in this instance is not in relation to a matter covered by the OPSEU Agreement and I do not have a general jurisdiction to deal with allegations of discrimination in employment that are beyond the scope of the OPSEU Agreement. [10] Accordingly, the Employer’s motion is allowed. Since CO Schnoflak’s complaint as reflected in paragraphs 25 and 26 in the Union’s statement of particulars is with respect to an acting manager position not covered by the OPSEU Agreement, I do not have the jurisdiction to deal with it. Therefore, paragraphs 25 and 26 shall be struck from the Union’s statement of particulars. The hearing of this grievance will continue on the next scheduled date. Dated at Toronto, Ontario this 19th day of November, 2019. “Ken Petryshen” Ken Petryshen, Arbitrator