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HomeMy WebLinkAbout1982-0531.Miller and MacPhail.90-01-03SElTLEMENT RkGLEMENT DES GRIEFS 531/82, 532/82 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD Between: CPSEU (Miller 8 MacPhail) Grievor - and - The Crown in Right of Onta~rio (Ministry of Correctional Services) Before: For the brievor: For the Emvlover: Rearinq: Employer R.L. Verity Vice-Chairperson L. Robbins., Member W. Lobraico Member C. Paliare Counsel Gowling, Strathy & Henderson Barristers &-Solicitors L. McIntosh Law Officer Crown Law Office - Civil Ministry of the Attorney General June 6, 1989 2 SECOND SUPPLEMENTARY DECISION This is the third Decision to be issued by the Board in this matter. The grievors were members of the unclassified service who were employed at the Cornwall Jail under a series of contracts, the last of which ran from April 1, 19.82 until March 31, 1983. On August 12, 1982, the employment of both grievors was terminated. On April 7, 1983, this panel issued its first Decision wherein it characterized the terminations of Messrs. Miller and MacPhail as dismissals without just cause. The Board granted a limited remedy. The matter then proceeded-to Judicial Review, as a result of which the Ontario Divisional Court quashed the Board’s remedial finding in a Judgement‘ dated March 21, 1984. On February 18, 1986, the Ontar i 0 Court of Appeal dismissed an appeal from the Judgment of the Ontario Divisional Court. The ;matter was remitted to the panel for the purpose of fashioning an appropriate remedy. .A hearing on that issue was held on July 16, 1986 and a Supplementary’ Deci-sion was issued on March 2, 1987. The panel granted the following remedy at p. 17: Accordi ng 1 y , the Board exercises its remebi al jurisdiction under s. 19(i) of The Crown Employees Collective Barsaining Act in reinstating the Grievors to their positions as Correctional Officers 1 at the . . 1 . . 3 Cornwall Jail in the capacity of public servants in the unclassified service for the remainder of the period to which they would have been entitled, but for the dismissals. In addition, they shall receive compensation from the date of their dismissals (August 12, 1982) to the date of reinstatement, together with interest calculated in accordance with the formula determined in Hal lowell House Ltd. and Service Employees Int’l Union, Local 183 (19801, 1 O.L.R.B. Rep. 35. Miller will be compensated on the basis of one shift per month and MacPhail on the basis of two shifts per month. The Board shall retain jurisdiction in the event of any difficulty ~. in implementing this Award. (Our emphasis) The Employer took the Supplementary Decision to Judicial Review. The application was heard by the Divisional . . Court on September 26, 1988. In dismissing the application, Mr. Justice White gave the following rationale: We are of the opinion that the Grievance Settlement Board has jurisdiction under s. 19 of the Crown Employees Collective Bargaining Act to fashion the remedy it did in favour of the grievors. Further, we are of the opinion that undue delay has ~..~been shown by the applicant in bringing this application and we would on that .ground alone, dismiss the application. The application is therefore dismissed. Costs of this application to the Respondent O.P.S.E.U. During the period from March 1987 to September 1988, the gri evors were neither compensated nor reinstated. However, on December 13, 1988, the Employer paid compensat i on to the grievors for the period from August 12, 1982 to April 7, 1983. A certain amount of interest was included, although it was agreed that the amount was insufficient even for that period. On December 30, 1988,~~ the question of the grievors’ reinstatement was resolved without prejudice to their position with respect to compensation. The issue of compensation remained unresolved, and therefore a third Hearing was held on June 6, 1989. At that time there were two matters remaining in dispute. The first was the question of when the clock would start and stop ticking for purposes of ‘compensation. MS. McIntosh stated that compensation should run only from August 1982 to April 1983, the date of the first Decision. She claimed that the Board could not have intended the clock to run indefinitely through the entire period. Moreover, when the Board rendered its Decision in 1987, the subsequent Judicial Review was not contemplated; She noted that various panels of the G.S.8,. have taken the position that unclassified staff can be reinstated for the remainder of a contract, but that one cannot create a new contract. In response ,~ Mr. Paliare stated that the 1987 Decision was clear and unequivocal. He contended that the clock starts ticking when the grievors were ‘terminated in August 1982 and ! stops when they were reinstated, which, in this case, was ‘. ’ 5 December 30, 1988. The Employer sought Judicial Review and was unsuccessful, but that is no reason why the Board’s award should not have been given full effect. Having carefully reviewed the parties submissions, it is our decision. that the Union’s position is correct. The Supplementary Decision of this panel provided for compensation from the date of the grievors’ dismissals to the date of their ‘reinstatement together with interest. Simply stated, the language of the Supplementary Decision of March 2, 1987 is clear. The date of dismissal was .inserted in”brackets in our Decision. The date of reinstatement could not have been anticipated at the time of the second Decision: however, the issue of reinstatement was subsequently resolved by the parties on December 30, 1988. Clearly, the quantum of compensation has increased because of the Employer’s actions in seeking Judicial Review and 1’ in failing to implement the Decision pending the result. In particular, we note the comments of Mr. Justice White that there was undue delay in bringing the application for Judicial Review. The Emplover relies on the decision of Vice-Chair Roberts in O.P.S.E.U. (Donald Smith)~~ and Ministry of Health,. 102/84, wherein he-declined to award a remedy along the lines of this case, and indicated that this type of relief must be I . 6 regarded as extraordinary. The Roberts decision illustrates the fact that a remedy in each case will turn on the merits of its own particular facts. In the instant matter, the delay factor is extraordinary. Some 7 years have now passed since the termination of the grievors’ employment in August of 1982 and yet the matter is not totally resolved. In our opinion, the Employer would appear to be seeking reconsideration of the Board’s 1987 Supplementary Decision. Simply stated, we have no jurisdiction to do so even if we wer.e so inclined. Therefore, it is our decision that Miller will be compensated on the basis of one shift per month and Macehail on the basis of two shifts per month for the complete period from August 12, 1982 until: December 30, 1988, together with interest in- accordance with the formula determined in Hallowell House Ltd. and Service Emolovees Int’l Union. Local 183 (1980)‘, 1 O.L.R.B. Rep. 35. The second matter which remained unresolved was the precise calculation of the amount owing, .-including the .: calculation of interest.., In order to avoid yet another round of hearings, ‘~t’he parties agreed that they would resolve this issue amongst themselves and submit the calculations to the panel for : inclusion as part of the Second Supplementary Decision. For that reason, the Board delayed the issuance of its Decision ~.... pending receipt of the calculations. However, the Board has not received any agreed upon calculations. On November 6, 1989, Mr. Paliare wrote to the Registrar and requested that the Decision be issued, without the necessity of reconstituting the panel. In the result, the Employer is ordered to pay compensation to the grievors as outlined. As the matter of the calculation 1s St111 unresolved, the panel will retain jurisdiction’.in .the unlikely event of any further. difficulty in implementing this decision. DATED at Brantford, Ontario this 3rd day of January; 1990. n R. L. VERITY. Q.C. - Vice-Chairperson L. ROBB~INS - Member “I dissent” (Dissent attached) W. LOBRAICO -. .Member DISSENT Re: 531/82, 532/82 (Miller & MacPhail) and The Crown in Right of Ontario (Ministry of Correctional Services) With respect I must dissent from the award of this Board dated December 1, 1989. Messrs. Miller and MacPhail were given a generous remedy in the award' of March 2, 1987. I do not believe that compensation should be extended beyond the appropriate date in 1987 based on the April 1, 1932 - March 31, 1983 contract. To award :further compensation to and including December 30, 1988 is just not warranted. It would be penalizing the Ministry for proceeding to Judicial Review. There was some undue delay caused by this process and at the most it would only be appropriate to pay additional interest to compensate for this.