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HomeMy WebLinkAbout1983-0666.MacCallum.84-08-13Between: ITRATION ,. IN THE MAT TER OF AN ARB Under THE CROWN EMPLOYEES COLLECTIVE Before BARGAINING ACT THE GRIEVANCE SETTLEMENT BOARD Before: For the Grievor: OPSEU (Heather MacCallum) Grievor - And - The Crown in Right of Ontario (Ministry of Correctional Services) Employer R. H. McLaren Vice Chairman F. Taylor Member D. B. Middleton Member M. Cornish, Counsel Cornish 6 Associates Barrister & Solicitor For the Employer: J. F. Benedict Manager, Staff Relations Ministry of Correctional Services Hearing: May 31, 1984 1 : ~. -2- I DECISION Heather MacCallum is a Correctional Officer working at the Toronto West Detention Centre. That Centre is a maximum ) security prison which operates on a three shift seven days a week basis. On July 30th, 1983, Ms. MacCallum submitted a request for a lieu day on Sunday, August 14th. 1983, in conjunction with her regularly scheduled days off on the Monday and Tuesday, August 15th and 16th. She submitted the request in the proper manner on a form designed for that purpose and in use at the Toronto West Detention Centre. On August 3rd‘ she received a form indicating that the request had been denied. (Exhibit IV) ~,.. 1 She took the matter up with Mrs. Stipchich, who is the person who does the scheduling. She told her that she couldn't > cover Ms. MacCallum for the lieu day in conjunction with her scheduled days off. Ms. MacCallum then spoke to her Lieutenant a Mr. Pat O'Keefe about the matter. Mr. O'Keefe is MS. MacCallum's supervisor. He looked into the matter and informed her that there would be no lieu day on the date requested. Mr. Jones, the Assistant Superintendent of the Toronto West Detention Centre in August of 1983, had learned of the request of Ms. MacCallum and her unhappiness at the refusal and decided to speak with her. That discussion would appear to have taken place on August 9th, 1983. \ The thrust of that discussion centered upon Mr. Jones making enquiries as to why Ms. MacCallum wished to have that particular day off and her refusing to give explicit reasons. Ms. MacCullum felt that why she might'wish to have that day off was not relevant. She explained to the Board that she wished to see her parents who live .some 00 miles west of Toronto and given that they worked during the week the most satisfactory time to have a visit with them would be on a weekend. There was no special function or occasion which would have required her to have been at her parents home on Sunday, August 14th, 1983. During the course of the discussions Mr. Jones explained that if he authorized the lieu day for August 14th, then it would cost an additional $100.00 > to bring in someone to fill in for the Grievor. Mr. Jones testifies that he found the tone of the meeting unsatisfactory and that the Grievor had threatened him with a Grievance if she did not receive her own way. Mr. Jones testifies that he took the view that she was trying to intimidate him and threaten him. He also testifies that he remained calm and simply indicated to her that if she felt that she needed to grieve the matter she was free to go ahead and do that. He indicated ) that he would still check and see what he could do and review the .., :;‘,,:, - J -4- schedule. He did that and made no changes. He testifies that he did not wish to spend $100.00 on an employee's whim of a desire l for a day off. In contrast Ms. MacCallum testifies that Mr. Jones was threatening to her in saying remarks such as "just remember it is a long, long road". She testifies that these comments were made in response to her informing Mr. Jones that she was prepared to grieve the matter. She takes the view that she was not threatening Mr. Jones but simply showing him the courtesy of indicating the matter was of sufficient concern that she would be willing to proceed with a grievance. Ms. MacCallum indicates that she was stunned by the remarks of Mr. Jones and the way in which they were put across to her particularly by his facial expressions. J MS. MacCallum testifies that as she went to leave, Mr. Jones stood up behind his desk and pointed his finger at her indicating that she was "not to threaten him". She testifies that he then rolled up a piece of paper and held it in his hand as he was speaking to her with an increasingly louder voice. She states that he became extremely angry and stated that "any respect I had for you just went right out the window". Mr. Jones denies all of this testimony as having transpired and on questionning by the Chairman of the Board denied either standing up behind his desk > speaking to the Grievor or pointing a finger at her. Counsel for the Grievor then elected to Put the creditability of Mr. Jones in issue by way of reply evidence from Mr. Dan Beattie, the President of the Local and Mr. David Marsh the Chief Steward. The thrust of that evidence indicates that Mr. Jones was excited and aggressive in addressing Ms. MacCallum when he came to report to her the results of his checking~ the schedule. He also testifies that Mr. Jones told her to have a grievance on his desk in twenty minutes. This latter point being one of the denials of Mr. Jones. The Grievor worked on August 14th as a result of the ..i denial of the lieu day. A grievance was filed on August Zlst, 1983. It reads: "Denial of lieu day in conjunction with regular days off contrary to the collective agreement". "Compensation in the amount of what is normally paid for working on a statutory holiday. A written explanation from Mr. Jones as to why that after (sic) a lieu day was denied, that a lieu day in conjunction with employees regular days was not granted as per Memo Aug. 3/83 from J. Benedict Re: G.S.B. Decision 185/81 (Tremblay)." (Exhibit I) It is the argument of counsel on behalf of the Union that there has been a violation of Article 19.4 and the -6 - interpretation of that provision by a Board of Arbitration Chaired by Vice Chairman R.L. Verity, Q.C. known as the 'Tremblay decision dated March 23, 1982 and being file 185/81. The relief sought on behalf of the Union was a declaration to that effect and a compliance order for the failure to have applied that decision in the Grievor's case. It was also argued that compensation ought to be paid to the Grievor by way of nervous shock damages or intangible injuries based upon the theory put forward in cases such as Jarvis v Swan Tours Limited cl9731 1 Q.B. 233 (C.A.) and Elder v. Koppe (1974) 53 D.L.R. (3d) 705. It is the argument of the Employer that the declaration i' contained in the 'Tremblay decision requires interpretation in order to be applied in these CirCUmStanCeS. It is argued that Article 19.4 of the Collective Agreement provides for a scheme whereby the first request for a lieu day has to be by mutual agreement. If the mutual agreement does not arise then that particular request can be denied. It is then argued that the second request must be on the basis of the declaration in the Tremblay decision in Article 19.4 and the employee would be required to receive the lieu day in conjunction with the scheduled days off. It was further argued that the Board has no jurisdiction to make a compliance order or award compensatory damages in this situation. ; -: :., -7- : The declaratory order contained in the TrembJ.ay decision reads as follows: "Failing mutual agreement pursuant to Article 19.4 with regard to the scheduling of lieu time accumulated under Article 19.2 and 19.3, an Employee may at his option take such time accumulated, in conjunction with his vacation leave or regular days off, such lieu time shall be at the sole discretion of the Employee. In the event that the Employee fails to exercise his discretion in selecting lieu day or days, and the scheduling thereof, within a reasonable time after the failure to reach a mutual agreement under 19.4, the provisions of Article 19.5 shall be deemed to apply." An application for judicial review of the decision was :i ~.? instituted by the Employer and dismissed by the Divisional Court on September 2nd, 1983. When a similar issue arose in connection with a different Ministry of the Government a subsequent panel of the Grievance Settlement Board chaired by Vice Chairman R.L. Kennedy Q.C.. found at page 6 of a decision dated March 29th, 1984 and known as file 342/83 and 341/83 that: “The interpretation issue with respect to Article 19.4 would, therefore, appear to be settled by the Board, and for the purposes of this Arbitration, we accept the interpretation of the Article as set out in Tremblay." The matter of the interpretation of the Collective Agreement in Article 19.4 and the application and interpretation of the declaratory order appear to have beensettled both by the judicial review of the Tremblay,decision and by the subsequent I application of the decision by .another panel of the Grievance Settlement Board. It would, therefore,at first blush appear that there is nothing for this Board to determine but to apply the Tremblay decision. The Employer argues that the declaratory Order in referring to a failure of mutual agreement implies that a first request may be refused. The reasons or the fairness of that refusal are not to be looked into because the requirement is mutual agreement. It is then argued that when a second request is made the meaning of the declaratory order is that at such a point it is the sole discretion of the employee to have the lieu day in conjunction with vacation days or regularly scheduled days off. The facts of the Tremblay decision deny the proposition being ascerted by the counsel for the Employer. In that case a Grievor had requested two days off in a row as lieu days. One had been granted and the other denied. The reason for the denial was based upon the unavailability of casual employees. Following the denial a shift change was arranged in order that the particular employee could have the day off. The only remedy was, therefore, the declaratory order. In the Tremblay decision the two arguments of the - 9- .I Employer were to the effect that there was no denial of a request for a lieu day: and if it was found that there was a denial, then it was management's right to so act. The panel of the Grievance Settlement Board found the issue to be a matter of interpretation of Article 19.4. See page 11. The panel goes on to state at page 12: "It appears to us that the wording of the first sentence of Article 19.4 indicates clearly that Management doesn't have the unfettered discretion in the scheduling of lieu days. The first sentence of that Article speaks of a mutual agreement. If Management's interpretation is correct, then the last sentence of 19.4 would be virtually meaningless. Management is alleging that in the event of failure to reach mutual agreement, Management would have total discretion to resort to the provisions of Article 19.5. In our view, the use of the word "may" in the second sentence of 19.4 means that neither Management nor the Employee is bound by the formula of lieu day time. The discretion then reverts to the Employee to select a lieu day contiguous with the Employee's vacation Or days off (either immediately before or immediately after either date) or alternatively to oank the .lieu day pursuant to the provisions of Article 19.5" In the view of this panel the findings are clear and assist in interpretating the declaratory order. The Board found that there is no Management discretion to resort to the Management rights provision when there is a failure to reach mutual agreement. It reasoned that to so hold would render the second -. I - 10 - sentence of Article 19.4 meaningless. While it may be that the declaration by its wording limits.the usefulness of the concept of mUtUa1 agreement because the employee can always override that criteria by attaching the lieu day to. scheduled vacation or scheduled days off; it does not entirely eliminate the concept of mutual agreement. If the employee were to ask for a lieu day in connection with other days than those associated with vacation or regularly scheduled days off then the mutual agreement requirement prevails. There is, therefore, ,still some situations affected by the first sentence of Article 19.4 and there are of course other situations affected by the second sentence of Article 19.4. The Tremblay decis~ion was taken to the Divisional Court for judicial review. The Court upheld the decision. That result may not necessarily establish what the proper interpretation of the Collective Agreement may be because of the narrow grounds upon which judicial review is undertaken. However, the Grievance Settlement Board had a subsequent opportunity to review the interpretation placed upon the earlier decision. The Employer did not argue before that panel that the Tremblay decision was manifestly wrong and ought to be reconsidered nor did it do so before this panel of the G.S.B. In those circumstances this panel ought note to alter the interpretation arrived at by one panel and applied by another except in the most unusual and extraordinary circumstances. It was not argued that this case fell into such circumstances. - 11 - The Board finds that the interpretation of Article lg.4 is settled by the prior decisions of the Grievance Settlement J Board. The Employer in denying the Grievor the lieu day has acted in violation of the agreement, and its interpretation by the two prior decisions. The Grievor suffers no monetary loss as a result of the actions of the Employer because she received a different day off as her lieu day. The remedial relief sought by the Union is associated with a nervous shock or intangible injury type of damage claim to the Grievor. A compliance order for the protection of the Union and its members was also sought. '_ 1 Turning first to the issue of damages. While there is little doubt on the evidence of the actions of Mr. Jones that he 1) caused considerable aggravation and some emotional upset to the Grievor this Board does not find that those actions were so belligerent or aggressive as to have given rise to a form of mental distress which might require compensation. It was further agrued by the Union that the lost opportunity would be the mental distress needed to require compensation. As this Board interpretes the Jarvis v. Swan Tours supra, case the notion of compensation for intangible injury in the law of contracts is very much associated with the legitimate expectations which may arise out of the contractual provisions in the contract. For example, - 12 - in the Jarvis and Swan Tours case the brochure advertising the skiing~ holiday was of such broad, extensive and glowing promises J as to the nature and quality of the holiday that it was found that the nature and quality of the activities which would be enjoyed on the skiing holiday were part of the contractual basis as well as , the travel and accommodation. There is no comparable situation arising here. It is unnecessary for us to determine whether intangible injuries are a form of compensation which a Grievor or the Union may be able to claim. We do not find the circumstances of this case such as to establish as a factual matter that there I has been sufficient mental distress or intangible injury caused to the Grievor as to give rise to a determination of the issue of whether or not there ought to be damages payable. It is found ? that in this case there ought to be no compensation paid to the Union or to the Grievor for the violation of the Collective Agreement. On the question of a compliance order several cases were cited to the Board and in particular reliance was placed upon Re: Westroc Industries Ltd., 5 L.A.C. (2d) 61 (Beattie, 1973) and Re: Samuel Cooper Co. Ltd. v International Ladies' Garment Worker's Union et al. (1973) 35 D.L.R. (3d) 501 (0nt.Div.Ct.J together with Amalgamated Clothing Workers of America and Relax Tayloring Ltd. 24 L.A.C. 201 (Arthurs. 1972). . :- - 14- ~.9 memorandum and did so. It is the view of this Board that such an interpretation is not a plausible one. There is no doubt that the Board has the authority to issue a compliance Order. This being the third occasion on which the application and interpretation of Article 19.4 seems to have arisen and the fact that the Employer would appear to have no standardized approach to the interpretation of the declaratory Order. The interests of the Union can only be protected by the issuance of a cease and desist order. No such Order will be made in this decision for the ~? following reasons. First, if a party wishes an order to be issued it ought to provide a draft Order, for use by the G.S.B. panel and make it available to the other party prior to the hearing day. ~) That was not done in this case. Such a procedure might also eliminate the difficulties found in the Tremblay decision. Second, notice of such an order ought to be contained in the grievance or alternatively provided to the other party at least one week prior to the hearing date. The Employer may ,also be placed on notice by the G.S.B. This award hereby provides that notice in respect of subsequent applications for a cease and desist Order involving Article 19.4. Finally, in this case there may have been sufficient doubt in the Employer's mind as to the meaning of the Tremblay decision so as to arguable justify this - 13 - The Union has now been required to bring the essentially similar issue to the Grievance Settlement Board on I three separate occasions including this decision in order to obtain the benefits which it negotiated in Article 19.4. The Employer issued a memorandum to the appropriate Management officials in the Ministry of Correctional Services dated August 3rd, 1982, and filed as Exhibit 5. That memorandum was issued by Mr. Benedict, the Manger of Staff Relations; who was also the representative of the employer in these proceedings. The memorandum does little more than quote the declaratory order of the Board in the Tremblay decision, which has been previously set out in this award. It then provides no interpretation of the Order but instructs Managers to implement the declaration to the best of their abilities. It indicates that more detailed instructions on how the Ministry will apply the declaration will be forwarded in due course. The evidence in this proceeding does not reveal whether there has been any such information forwarded. It would appear that the Employer is aware of the need to comply with the decisions of the Grievance Settlement Board but has taken insufficient steps for its enforcement within this particular ;'. : Ministry. The agrument put forward by counsel on behalf of the Employer is essentially that of Mr. Jones who was required to arrive at some interpretation of the declaratory Order and the , ) panel not issuing a cease and desist order. After this award DATED at London, Ontario, this13~th day of August. 1984. F. TAYLOR, Member "I DISSENT" D.B. MIDDLETON, Member