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HomeMy WebLinkAbout2010-1479.Draper et al.12-10-17 DecisionCrown 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#2010-1479, 2010-2739, 2010-2740, 2010-2764, 2010-2765, 2010-2766, 2010-2960, 2010-2964, 2011-0100 UNION#2010-0368-0059, 2010-0368-0116, 2010-0368-0117, 2010-0368-0109, 2010-0368-0110, 2010-0368-0111, 2010-0368-0133, 2010-0368-0137, 2010-0368-0144 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN Ontario Public Service Employees Union (Draper et al) Union - and - The Crown in Right of Ontario (Ministry of Community Safety and Correctional Services) Employer BEFORE Loretta Mikus Vice-Chair FOR THE UNION Jane Letton Ryder Wright Blair & Holmes LLP Barristers and Solicitors FOR THE EMPLOYER Roslyn Baichoo Ministry of Government Services Labour Practice Group Counsel HEARING October 10, 2012. - 2 - Decision [1] I have before me a series of grievances nine Correctional Officers (CO) pertaining to incidents that occurred on December of 2009 and April of 2010. This award deals with the preliminary decision of the Employer to have these grievances dismissed on the grounds there is no dispute between the parties and therefore no violation of the collective agreement. As a corollary, the Employer submits that a review of the particulars provided by the Union, there is no prima facie case, the issues are moot and there would be no labour relations purpose in proceeding. The incidents giving rise to these grievances happened on two separate dates and involved two sets of grievors; the first group consisted of CO’s Elchesyn, Hann, Hemeryck, Simmons and Sprott, the second of CO’s Draper, Butsch and White. [2] It is not necessary to set out the details of these events. Suffice it to say that it began as a disagreement between the grievors and the acting management about the proper procedure to follow with respect to unlocking the inmates, the separation of general population inmates from protective custody inmates, triple bunking and the cleaning of the hallways. Those disagreements led to a work stoppage under the Ontario Health and Safety Act. [3] Although the details of what followed differ in some respects, generally the intentions were meant to apply across the Board. All of the grievors received a letter on May 3, 2010 advising them that a meeting had been scheduled to allow them to respond to allegations that they refused to follow an Operational Manager’s direct orders which resulted in charges of failing to meet the standards for professional behaviour and insubordination. The letters referred to variations of involvement in the events of April 12, 16, and 18, 2010. On the same date they received a letter advising them that video footage of the dates at issue might be used as evidence at the meeting. [4] Beginning May 28, 2010, the grievors received a letter telling them that the allegation meeting had been cancelled and replaced by a fact finding meeting. Later, each of them received a letter advising them that no discipline would be imposed and that the matter had been closed. [5] That is the summary of the Union’s particulars. The Employer relies on them to show that there has been no discipline imposed and no difference between the parties. Therefore this Board does not have the jurisdiction to proceed. [6] A leading case on this issue is Borowski v. Canada (Attorney-General), [1989] 1 S.C.R. 342. The appellant was attacking the validity of sections of the Criminal Code that he had been charged under. In considering whether to dismiss the application on the grounds that those provisions had been deemed invalid in a previous proceeding, the Court stated at page 145: The doctrine of mootness is part of a general policy that a court may decline to decide a case which raises merely a hypothetical or abstract question. An appeal is moot when a decision will not have the effect of resolving some controversy affecting or potentially affecting the rights of the parties. Such a live controversy must be present not only when the action or proceeding is commenced but also when the court is called upon to reach a decision. The general policy is enforced in moot cases unless the court exercises its discretion to depart from it. The approach with respect to mootness involves a two-step analysis. It is first necessary to determine whether the requisite tangible and concrete dispute has disappeared rendering the - 3 - issues academic. If so, it is then necessary to decide if the court should exercise its discretion to hear the case. (In the interests of clarity, a case is moot if it does not present a concrete controversy even though a court may elect to address the moot issue.) [7] I was given several cases that considered the question of mootness. In Donna Lee Jones and Ministry of Correctional Services, PGSB No. P/0009/92 November 30, 1995 the Board declined to exercise its discretion to hear a grievance involving the removal of a letter of discipline from her file that had already been removed in accordance with the collective agreement. In Re Fitzgerald and Ministry of Correctional Services GSB # 1489/88 (Samuels), the grievor wanted a letter of counselling removed from his file. Notwithstanding the assertion by the employer that the letter was non-disciplinary, the grievor insisted it was a form discipline. Arbitrator Samuels stated clearly that once the employer said it was not disciplinary, it was non- disciplinary for all purposes. The Board did not have jurisdiction to review every document prepared by the employer and unless it was disciplinary. Similarly, in the Re OPSEU (Black) and Ministry of Revenue (December 3, 1990) GSB# 885/90 (Dissanayake), the Board stated at page 6: It is common ground that this grievance is arbitrable only if the memorandum in question can be characterized as “discipline”. This Board, while granted jurisdiction over disciplinary matters, has no overall power of review of management interaction with its employees. [8] It is true that there has been no discipline imposed on any of the grievors in this case. However, the grievances are not identical. A review of the grievors’ assertions and demands is necessary to determine whether there is a live issue between the parties that must be heard. [9] Mr. Draper has alleged that he was subjected to reprisals because of exercising his rights under the Health and Safety Act. Mr. Butsch has alleged he was accused of using inappropriate actions and that he was still waiting for an interview to discuss these matters. Mr. White alleges he was targeted, harassed, discriminated against, bullied and intimidated because of his union activity. He referred to events that occurred in December, 2009, April 17, 2010, January 20, 2009, and numerous others. He has a set out a lengthy list of remedies, including destroying the correspondence between him and the Employer from May 3 to June 15, 2010. Mr. Elchesyn has alleged he has been targeted by the Employer over the last 15 months, including allegation of excessive force and insubordination. He claims he has been denied leaves of absences and bereavement leave. He feels he has been the victim of reprisal by the Employer. Mr. Hemeryck has grieved the letters he received following the April incidents. He refers to them as disciplinary and asks that they be removed from his file. He has also asked for other remedies such as an apology and monetary damages. Mr. Simoneau has grieved that he was placed in a life-threatening situation and put under undue stress by being accused, interrogated and found guilty of occurrences on April 12, 16 and 18, 2010. He asks for full redress. Mr. Roses’ grievance is very similar except that he specifically asked for reimbursement for sick leave, return of vacation accrual, lieu time and damages. He also asks the letter be removed from his file. Mr. Sprott grieves that he has been targeted by being labelled insubordinate and contemptuous of management because of the incident on April 18, 2010. Finally, Mr. Hann has alleged he was unfairly accused of being insubordinate and contemptuous of management because of the events of April 12, 17, 18, 2010. He accuses the Employer of causing undue stress due to these reprisals. - 4 - [10] The first question to be asked, according to the Borowski case, is whether there is a live and concrete dispute remaining that must be resolved. Based on the allegations advanced by the grievors, the answer must be yes. The grievances that allege discrimination, harassment and reprisal are not merely asking that discipline be removed from their files. They are alleging that the employer has engaged in acts that are contrary to the collective agreement. [11] In the case of OPSEU (Dubuc) and Ministry of Community Safety and Correctional Services (July 6, 2011) GSB# 2010/0490 (Abramsky) the Board found that there was no live controversy in respect of the letter of discipline at issue but that the grievor’s claim for alleged damages for loss of reputation and mental distress stemmed from the original investigation and discipline and were still a “live controversy”. The Board went on to say, at page 10: …The fact that the Employer subsequently rescinded the discipline does not eliminate the alleged impact of its action, which occurred at the time. Whether the grievor can, in fact, establish such losses is a different question. Right now the issue is still a “live controversy”. I conclude that it is. [12] Based on the above, I find that there is a “live controversy” between the parties. The Employer’s motion is dismissed. The parties will reconvene on the dates previously scheduled. Dated at Toronto this 17th day of October 2012. Loretta Mikus, Vice-Chair