GSB#0507/01, 0508/01, 0509/01
UNION# 01B204, 01B205, 01B206
IN THE MATTER OF AN ARBITRATION
Under
THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT
Before
THE GRIEVANCE SETTLEMENT BOARD
BETWEEN
Ontario Public Service Employees Union
(Fox et al)
Grievor
-and-
The Crown in Right of Ontario
(Ontario Human Rights Commission)
Employer
BEFORE Susan L. Stewart Chair
FOR THE GRIEVOR Gavin Leeb
Grievance Officer
Ontario Public Service Employees Union
FOR THE EMPLOYER Lisa Compagnone
Counsel
Legal Services Branch
Management Board Secretariat
HEARING September 11, 2001.
DECISION
This decision deals with a request by the Union for interim relief. A preliminary objection made by the Employer to the Board’s jurisdiction to consider interim relief was rejected in a decision dated September 5, 2001. This decision deals with the merits of the motion involving Ms. Crowe and Ms. Kerna. Ms. Fox was ill on the September 11, 2001, hearing date and thus the parties agreed to adjourn the motion in connection with her grievance.
The grievors are investigators with the Ontario Human Rights Commission. They investigate complaints made by members of the public who allege that they have been subjected to discrimination in contravention of the prohibitions in the Human Rights Code. The complaints are varied in nature and arise in the context of employment, housing, health services and many other areas.
The involvement of an investigator with any particular file is completed for the purposes of the Employer’s standards for the completion of files when a matter is resolved by the withdrawal or settlement of a complaint, or by what is referred to as the “disclosure”of a file, which entails forwarding a completed investigation file to the Commission. The disclosure of a file requires compliance with certain deadlines so that internal processes in relation to the file may be completed in order that it will be ready to be dealt with by the Commission on prescheduled dates. Hereinafter, reference to closure is intended to include “disclosure”.
The grievances have their origin in the Employer’s direction to the grievors in relation to expectations with respect to the closure of files. That direction, as it was initially expressed, was set out in a letter to each of the grievors dated June 7, 2001. In that letter, concerns were detailed in relation to previous performance appraisals wherein the grievors had been advised that they were not meeting performance expectations in relation to case closing targets. They were further advised that it was expected that they would be able to close a minimum of twenty cases by September 30, 2001. The letter goes on to refer to resources that would be available to assist the grievors in attaining that goal. As well, the letter refers to the potential implications of a failure to meet the standard, as follows: “Should you fail to close/disclose 20 cases as required, your continued employment with the Commission will be reviewed and a decision made about your employment status”. It is this latter statement which gives rise to the Union’s request for interim relief. The Union has requested that the Employer be precluded from taking any action that would have financial consequences for the grievors, that is, the imposition of a suspension or dismissal, until such time as the validity of their grievances challenging the propriety of the Employer’s directive has been determined by this Board.
The Employer has since advised of the reduction of the case closing target from 20 cases to a range of 15 to 18 cases. This reduction has not resolved the dispute between the parties in connection with the grievances and, indeed, the circumstances surrounding the communication of this revised objective was raised by the Union as a further basis for its position that the Employer is conducting itself in violation of its obligations under the Collective Agreement.
The issue before the Board at this point is whether an order for interim relief ought to be granted. The test for interim relief is two-fold:
the existence of an arguable case in the main application
the balance of potential harm or inconvenience
The essence of the testimony of both Ms. Crowe and Ms. Kerna was that the prospect of the loss of their employment was humiliating and devastating. Both testified, and it was apparent from the manner in which they testified, that the questioning of their competence and the prospect of the loss of their employment triggered a strong emotional reaction. Their personal and family lives as well as relationships in the workplace have been affected. Both testified about concerns about financial security associated with a loss of income.
Mr. J. Dorion, who is the supervisor of Ms. Crowe and Ms. Kerna, testified as to the concerns of the Employer in ensuring public confidence in its ability to deal with complaints in a timely manner. Reference was also made to the need of complainants and respondents to have matters dealt with in a timely manner. These considerations resulted in the setting of and the need for enforcement of standards in relation to the closing of files. In this regard M. Dorion emphasized that while the ultimate sanction of discharge or discipline was an option, it was recognized that such an approach would be restricted to the appropriate circumstances, where there was justification for such an approach.
There was additional evidence adduced which was relevant to the issue of the existence of an arguable case. It is unnecessary for me to refer to that evidence as it is my view that the balance of potential harm favours the Employer, and thus that Union’s motion must be dismissed.
The principles relevant to the issue before me are summarized in Ministry of Correctional Services & OPSEU (Stewart), 1000/94 (Gorsky), a decision relied on by Mr. Leeb. As Mr. Leeb emphasized, that decision notes that granting interim relief is not limited to rare and exceptional circumstances and also that the integrity of management rights is not determinative of the matter. However, the decision also notes at page 6, referring to William Neilson Ltd. & United Food and Commercial Workers’ Union (unreported decision dated July 16, 1993) (K. Swan), that there should be a “showing of some specific inconvenience being suffered to the grievor apart from what may generally be presumed…”. Ultimately, of course, the test entails the balancing of the potential harm.
There is some force to the submission that there are many options available to the Employer which would not entail financial consequences for the grievors, and thus that the balance of convenience supports an order in their favour. However, while the prospect of suspension or discharge, although speculative, is extremely troubling to the grievors, the evidence does not establish specific inconvenience apart from what may generally be presumed. The Employer has an extremely important and fundamental interest in setting standards and ultimately enforcing those standards, an interest that may be placed in jeopardy if a limitation is placed on its rights in this regard. The circumstances of this case are not analogous to the cases where this Board has granted interim relief in the past. In my view, the balance of potential harm clearly favours the Employer in the circumstances of this case.
In the course of her submissions Ms. Compagnone argued that the test for interim relief should be viewed somewhat differently in the context of an arbitration process, where matters will proceed with more dispatch than in Court. Mr. Leeb took issue with this submission and suggested that to accept this position would be to change the nature of the test that has long been established at this Board. I have made my determination of the matter without the necessity of entertaining this consideration, however it does raise a practical matter that is worthy of comment. That practical matter is that the Board can very often accommodate the parties in scheduling matters to be heard and determined on an expedited basis, either by arbitration or mediation, thus potentially obviating the need to have matters addressed on an interim basis.
Ms. Compagnone also argued that an order precluding the Employer from discharging the grievors would fall within the prohibition contained in section 48 (13) of the Labour Relations Act, which precludes an arbitrator from reinstating an employee, a submission with which Mr. Leeb took issue. Once again, it is unnecessary for me to decide this issue, given my conclusion that the balance of potential harm or inconvenience favours the Employer in this instance.
For the foregoing reasons, the Union’s request for interim relief is denied.
Dated at Toronto, this 27th day of September, 2001.