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HomeMy WebLinkAbout2005-1443.Tardiel et al.09-09-25 Decision Commission de Crown Employees Grievance Settlement règlement des griefs Board des employés de la Couronne Suite 600 Bureau 600 180 Dundas St. West 180, rue Dundas Ouest Toronto, Ontario M5G 1Z8 Toronto (Ontario) M5G 1Z8 Tel. (416) 326-1388 Tél. : (416) 326-1388 Fax (416) 326-1396 Téléc. : (416) 326-1396 GSB#2005-1443, 2005-3884 UNION#2005-0530-0022, 2005-0530-0077 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN Ontario Public Service Employees Union (Tardiel et al) Union - and - The Crown in Right of Ontario Employer (Ministry of Community Safety and Correctional Services) BEFORE Christopher J. Albertyn Vice-Chair FOR THE UNIONDavid Wright, Ryder Wright Blair & Holmes LLP, Barristers & Solicitors Eric del Junco, Barrister and Solicitor Donald McLeod, The McLeod Group, Barristers and Solicitors FOR THE EMPLOYER Melissa Nixon Ministry of Government Services Counsel SUBMISSIONS Written submissions from the parties - 2 - Decision The issue [1]This decision concerns an application for interim relief by the Union. It seeks to have the Employer maintain the Grievor?s current paid leave of absence until his grievance is determined. The Employer has advised the Union that it intends to end the paid leave on October 8, 2009. Background [2]The Grievor was hired as an unclassified Correctional Officer in November 2001. In July 2004, he transferred to the Toronto Jail and in March 2006, he became a classified employee, a CO2. [3]There has been a turbulent work environment at the Toronto Jail, particularly in the period 2005 to 2007. Many employees at the Toronto Jail suffered the effects of this turbulence. The circumstances at the jail were made much worse by the periodic receipt of anonymous vile letters addressed principally to various racialized employees, threatening harm to them and to their families. [4]The Grievor is among the racialized employees at the Toronto Jail who has received, or has been disparagingly referred to, in threatening, racially-motivated anonymous hate mail. He has grieved his circumstances at work, claiming they constitute a poisoned work environment. He alleges this environment is the result of the Employer?s failure to provide a safe and harassment free workplace. [5]Over the relevant period, the Employer took steps to try to assist the employees who received such mail. Among these steps, the Employer offered the employees the opportunity of taking a paid leave of absence until such time as they felt comfortable to return to the workplace. [6]The Grievor availed himself of this accommodation. He left work on sick leave on January 15, 2008 and commenced a leave with pay on February 1, 2008. He has not returned to the workplace since then, and so has been absent from work on paid leave for a period of over approximately 17 months. The Grievor does not claim to have a medical basis for his absence. Consequently he has never produced any medical notes to justify the leave or its continuation. His claim for his continued absence is that he cannot return while the workplace remains poisoned. The Union?s claim is that the Grievor is entitled to work in a workplace that is free from harassment and discrimination, and that until such time as the Employer is able to provide that environment, the Grievor is entitled to remain away from work while continuing to be paid his salary. [7]Many employees similarly situated to the Grievor ? recipients of hate mail ? accepted the Employer?s accommodation of a paid leave of absence, but all, besides the Grievor, have now returned to work or have a planned return to work, either because they and the - 3 - Employer have resolved their grievance, or because they and the Employer have concluded a return to work protocol that addresses their safety concerns. Jurisdiction [8]There is a dispute between the parties as to whether I have jurisdiction to grant the interim relief the Union seeks. [9]Under Part II of the Crown Employees Collective Bargaining Act, 1993 (CECBA), the provisions of Labour Relations Act, 1995 (LRA) are deemed to form part of CECBA unless expressly modified. Section 48(12)(i) of the LRA describes the interim relief power of an arbitrator as being, ?to make interim orders concerning procedural matters?. This provision is not modified in Part II of CECBA, so applies to arbitrations conducted by the Board. Furthermore, under s. 48(13) of the LRA, ?an arbitrator ? shall not make an interim order under clause (12)(i) requiring an employer to reinstate an employee in employment?. [10]Employer counsel argues that the Board does not have jurisdiction to grant the relief sought by the Union. She contends the relief sought is substantive in nature and beyond the Board?s authority. Employer counsel relies on Ontario Power Generation v. Society of Energy Professionals, [2007] O.J. No. 72 (Div. Ct.) and International Electrical Workers, Local 636 v. Power Stream Inc. (2008),180 L.A.C. (4th) 87 (Jesin). [11]The Board has addressed the question of its jurisdiction in previous decisions, on which 1 Union counsel relies. [12]Given the conclusion I reach below, it is not necessary to resolve the conflict between the parties concerning jurisdiction and I need not decide the question. Should the relief be granted? [13]Assuming, without finding, that I do have jurisdiction, I would address the question of interim relief to the Grievor as follows. [14]The Board applies a two-fold test: does the Grievor have an arguable case on the merits, and, does the balance of harm or convenience favour granting interim relief? 2 1 In OPSEU (Nield) and Ministry of Labour, GSB#147/96, October 21, 1996 (Roberts), upheld, Ontario v. Ontario Public Service Employees? Union, [1997] O.J. No. 427 (Div. Ct.); OPSEU (Belanger et. al.) and Ministry of Health, GSB#976/93, March 11, 1997 (Kaufman); OPSEU (Latimer) and Ministry of the Solicitor General and Correctional Services, GSB#0131/95, March 13, 2000 (Kaufman); OPSEU (Union) and Management Board Secretariat, GSB#1196/97, October 29, 1997 (Dissanayake), May 19, 1998 (Petryshen); OPSEU (Union) and Ministry of Transportation, GSB#180/98, June 3, 1998 (Stewart); OPSEU (Sammy et al) v. MCSCS GSB#0224/2001; OPSEU (Security Checks Grievance) and Management Board Secretariat GSB#001/2003; OPSEU (Ranger) v. MCSCS GSB#2002/2375; among others. 2 OPSEU (Leader) and Ministry of Health, GSB#2498/93, January 30, 1995 (Finley). - 4 - [15]It is not necessary for me to explore in detail whether the Grievor has an arguable case on the merits. Although, as Employer counsel correctly points out, the Grievor?s claim is based on relatively limited incidents, his allegations are sufficient in my view to establish that, if proved, he is entitled to some relief. The Union therefore meets the first consideration for the grant of the relief: the Grievor has an arguable case on the merits. [16]The second part of the test is more contested. The Union claims the balance of harm or convenience favours the granting of the interim relief sought. It says that the work environment that caused the Grievor to take a leave of absence in February 2008 remains poisoned, and that it is not safe for the Grievor to return. Union counsel points out that the Grievor is strongly of the view that the appropriate remedy for the breach of his rights is, among other things, an order that he is not required to work in any correctional institution. Union counsel argues that to require the Grievor to return to work at a correctional institution or face having no income is to decide the case on its merits. [17]To assess this contention, it is necessary to review what the Employer has done since February 2008 and what tender it has made to the Grievor to address his safety concern. [18]The period between 2005 and 2007 at the Toronto Jail has been described in numerous employee grievances as constituting a poisoned work environment. The Grievor?s claim is consistent with this view. There have been changes since then. During the period from late 2007 until now, in part of its own initiative and in part pursuant to, and in cooperation with, numerous decisions issued by the Board for the purpose of establishing a workplace free from harassment and discrimination, the Employer has taken steps to try to improve and correct the situation at the Toronto Jail. [19]Further, in part to address an issue raised by the Grievor in his grievance (damage to his car while parked in the Toronto Jail parking lot), the Ministry has spent a significant amount of money improving the security of the parking lot at the Toronto Jail. With both increased security surveillance and fencing, the parking lot is now significantly more secure than when the Grievor commenced his leave of absence. [20]In addition, following extensive consultation with the parties, the Board issued a decision on July 15, 2009 setting out a protocol to address the handling of suspicious mail. The stated purpose of that decision was to ?to encroach upon individual employee privacy rights as little as reasonably possible, while protecting the interests of the Employer and of all employees in maintaining a workplace that is free from harm, harassment and discrimination.? The protocol was aimed to limit the impact on the recipients of hate mail by providing them with appropriate support. The Employer has undertaken to comply fully with the terms of the protocol. [21]In any event, the Employer has tendered to the Grievor, without prejudice to its rights on the merits of the grievance, to accommodate the Grievor in his current position as a CO2 in any of the six other institutions in the Ministry?s Central Region pending the determination of the grievance. The Employer has said to the Grievor that, if he feels unsafe returning to work at the Toronto Jail, he may work as a CO2 at any of the following institutions: Maplehurst Complex, Vanier Centre for Women, OCI, Mimico Correctional Centre, Toronto West Detention Centre or Toronto East Detention Centre. - 5 - Furthermore, the Employer has given the Grievor until October 8, 2009 to tour these facilities to determine which he might choose to work in pending the outcome of his grievance. The Employer has made clear, though, that if, by October 8, 2009, the Union fails to notify it of the Grievor?s intention to return to the Toronto Jail or to one of the six alternative institutions offered to him, he will be deemed to be on a leave of absence without pay pending disposition of his grievance at arbitration. [22]In my view, the Employer?s tender is reasonable; it is a reasonable continued accommodation of the Grievor, concerned as he is by the safety of the workplace. It says to the Grievor that if he feels unsafe at the Toronto Jail, in spite the changes that have been made there, and if he regards that workplace as continuing to be a poisoned work environment, he may be accommodated by being able to work at any of the above six institutions, pending resolution of his grievance. [23]The relief sought by the Grievor is founded upon his experience in the Toronto Jail. There is nothing before me, at present, to suggest that the working environment in all of the correctional institutions where the Employer has offered to place the Grievor is so poisoned that he may not safely work at any of them in the interim, pending determination of his grievance. [24]The Grievor asks to continue to be paid without working and without medical justification. He does so in circumstances where there are reasonably safe alternatives for him. This, in my view, is an unwarranted hardship upon the Employer. That hardship outweighs the hardship to the Grievor in having to work in a correctional institution at his regular job during the period until his grievance is resolved. [25]In all of these circumstances, I am not persuaded that the balance of harm or convenience favours the grant of the relief sought by the Union for the Grievor. [26]I direct that, if the Grievor elects to accept the accommodation of work at one of the alternative institutions described above pending resolution of his grievance, he is to advise the Employer thereof, through Union counsel, by October 8, 2009 so that he may be accommodated at the workplace he chooses. [27]If the Grievor does not accept accommodation at one of the correctional institutions within the Ministry?s Central Region, his paid leave of absence with the Employer will end on October 8, 2009. [28]This order is without prejudice to the contentions of either party in the grievance. th Dated at Toronto this 25 day of September, 2009. Christopher J. Albertyn, Vice-Chair