GSB# 2003-2771

UNION# 2003-0546-0012

IN THE MATTER OF AN ARBITRATION

Under

THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT

Before

THE GRIEVANCE SETTLEMENT BOARD

BETWEEN

Ontario Public Service Employees Union (Greenbank et al.)

Union

• and -

The Crown in Right of Ontario (Ministry of Finance)

Employer

BEFORE

Loretta Mikus

Vice-Chair

FOR THE UNION

David Wright Ryder Wright Blair & Holmes LLP Barristers and Solicitors

FOR THE EMPLOYER

Fateh Salim Counsel Management Board Secretariat

HEARING

June 1, 2005.

Decision

On October 21, 2003 five grievors filed a group grievance alleging as follows:

We grieve the violation of the collective agreement under articles 9, & 22, but not limited to those articles, the Ontario Health and Safety Act, the Labour Relations Act and the Ontario Human Rights Code, in that management has/is fostering an unsafe and poisonous work environment.

By way of remedy the grievors are seeking:

A full redress including but not limited to a safe, healthy and poison-free environment. An investigation by the Special Investigations Unit of Public Safety under WDHP and compensation for pain and suffering.

The first paragraph of the written particulars provided by the Union sets out the grounds for the grievance as follows:

The grievance arises out of the inappropriate and threatening actions and behaviour of a co-worker of the grievors, Dave Erwin, and the total lack of failure on the part of management to take any appropriate steps to deal with his actions and behaviour. (sic)

At the commencement of the hearing the Employer raised several preliminary objections, all or any of which it claimed were dispositive of the grievance. The first challenges the jurisdiction of this Board to proceed or, in the alternative, if this Board should accept jurisdiction, it was asserted that it ought to defer the matter to the Ontario Labour Relations Board (OLRB).

The grievance was filed after an incident on September 8, 2003 in which, it is alleged, Mr. Erwin threatened and intimidated a Union member. He was reported to have left a threatening voice message for the President of the Local, who was employed by the Ministry of Labour and the spouse of one of the grievors. The police were called and when they arrived at the workplace to lay charges against Mr. Erwin, the grievors became aware of the threats. When Mr. Erwin returned to work two days later, they refused to work with him and locked themselves in another part of the office. That standoff continued for two days until a complaint was filed by the grievors with the Ministry of Labour under the Occupational Health and Safety Act R.S.O 1990 c.O.1 as amended (OHSA) complaining of an unsafe work environment. Three of the grievors were present during this incident and involved in the complaint The complaint was investigated by the Ministry of Labour and dismissed. An appeal has since been filed by the Union.

Mr. Salim, counsel for the Employer, submitted that the facts relied on in the complaint to the OLRB are identical to the facts the Union is relying on in the instant grievance. The Union and the grievors chose the OLRB as the appropriate forum for their complaint and cannot seek redress from another forum because they did not like the result. The Union has not withdrawn its appeal of the OLRB’s order and must be seen as accepting its jurisdiction to determine the matter. The Union’s pursuit of the grievance before this Board is an abuse of process and harassment of the Employer.

In the alternative, if this Board should accept jurisdiction, the Employer asked the Board to defer the adjudication of the complaint to the OLRB. There has already been an investigation into these allegations by the OLRB and, if this Board determines that both tribunals have concurrent jurisdiction, it would be appropriate for the original panel to continue. The complaint to the OLRB was filed on October 14, 2003, a week before the grievance before me was filed.

The Employer relied on a decision of Vice-Chair Stephens in OPSEU and Ministry of Community and Social Services (GSB # 2004-0911) which dealt with a jurisdictional dispute over the placement of the position of Coordinator of Pharmacy Services. OPSEU took the position that the arbitration board should decide the question, the employer urged the Board to defer to the OLRB and AMAPCEO concurred with the employer. Vice-Chair Stephens ruled that, to avoid the possibility of multiple and conflicting decisions from other arbitrations boards, the OLRB was the appropriate forum to determine jurisdictional disputes concerning the composition of the bargaining unit. That is the approach the Employer urged in the instant grievance.

The second preliminary objection goes to the delay in filing the complaint. The incident giving rise to the OLRB complaint and this grievance occurred in mid-September of 2003 but the facts relied on by the Union relate to incidents that allegedly occurred several years before that date. The Employer submitted that paragraphs 4, 5, 6, 7, 8, 9, 10, 12, 13, 14, 15, 16, 17, 18, 19, 20, 21, 22, 24, 26, 27, 28, 29, 30, 32, 34, and 35 should be struck as being untimely. It was stated that it would be prejudicial for the Employer to have to defend itself against such dated allegations. These allegations were not brought to the attention of the Employer at the time and it cannot be expected to answer to them after this delay.

It was noted by the Employer that Mr. Erwin no longer works at the same location, which makes most of the grievors’ health and safety concerns moot, in any event.

The last preliminary matter dealt with the assertion that the facts as pleaded do not disclose a prima face case and should be dismissed as not disclosing a dispute between the parties, which is the only basis for this Board’s jurisdiction. The facts asserted by the Union may indicate a troubled workplace that might require a labour relations remedy but that does not elevate them to a violation of the collective agreement. Mr. Salim submitted that this concerns a dispute between bargaining unit members and the Employer has, in essence, been dragged into a family dispute. It should not have to defend itself in these circumstances and especially not in multiple forums. The Union has decided that the proper approach is an appeal to the OLRB and it should not be allowed to pursue the same issue before this Board as well.

Mr. Wright, counsel for the Union, submitted that this Board should reject the Employer’s suggestion that this is a family matter and that it is a stranger to the allegations. The Employer continues to assert control over the workplace and would reject any suggestion by the Union or its members that it had relinquished any of its rights in that regard. While the Union has an obligation to cooperate with the Employer, it is the Employer’s obligation under the collective agreement to provide a safe workplace. That obligation is ongoing and since Mr. Erwin is still attached to the workplace, the poisonous work environment continues. The grievance deals not only with the continuing threat of Mr. Erwin but also with remedies for the fifteen months that the Employer refused to deal with the problem. This grievance concerns three of the complainants before the OLRB as well as two grievors who are not part of the OLRB proceedings. Some of the complainants before the OLRB are not named in this grievance. There are aspects of this grievance that can only be dealt with by this Board and remedies that can only be achieved in this forum.

With respect to the jurisdiction of this Board, it was stated that the Grievance Settlement Board has exclusive jurisdiction over matters under the collective agreement. The OLRB, through the OHSA, has jurisdiction over workplace health and safety matters, but it is not exclusive. Section 9 of the collective agreement contains a similar although much more broadly worded statement as section 25 of the OHSA concerning the employer’s obligation to take every precaution reasonable in the circumstances to provide a safe and healthy workplace for its employees. The OHSA provides for a work refusal where an employee believes it would be unsafe or dangerous to continue and the employer and a local health and safety representative will investigate the complaint. If necessary, an officer will be appointed by the OLRB to investigate the complaint who can issue any order he/she deems appropriate in the circumstances. The OHSA also provides for protection from reprisals for an employee who has initiated a complaint and it is only in subsection 50 (2) in Part IV – REPRISALS BY EMPLOYER PROHIBITED- that an employee must elect to proceed by binding arbitration under the collective agreement or through a complaint to the OLRB. The legislature provided for concurrent jurisdiction and this Board cannot decline jurisdiction because a complaint was filed by some of the grievors. If the OHSA was intended to put a complainant to his/her election, it could have and should have said so explicitly. It did not.

This is not, it was argued, an appropriate case for deferral to the OLRB. The parties in the OLRB complaint are not the same as in the grievance and the remedies sought are different and distinct for each grievor. The two proceedings raise different and distinct issues regarding the actions taken or not taken by the Employer to address these issues, the effect of that alleged inaction and the consequences to each grievor.

Finally, with respect to the Employer’s submissions regarding delay, the Union submitted that it is not seeking a remedy for the incidents described before September 10, 2004. However, the grievance alleges that the precipitating incident of that day was the culmination of a longstanding situation at the workplace that the Employer was aware of but chose to ignore. It is the context that explains the fear felt by the grievors as a result of the threats made by Mr. Erwin. It was part of an ongoing pattern of conduct that created a poison work environment and the Board must hear that history to understand the grievors’ fears.

REASONS FOR DECISION

The first issue to be considered is whether this Board has the jurisdiction to proceed with the grievance. The issues before this Board have been the subject of a complaint to the OLRB that resulted in a dismissal of the complaint and a subsequent appeal. The Employer takes the position that the OLRB has the exclusive jurisdiction to determine the matter and this Board must decline jurisdiction. I disagree.

The GSB is established under the Crown Employees Collective Bargaining Act and its jurisdiction as set out in the collective agreement is to resolve differences between the parties, including questions of interpretation and application. In fulfilling its mandate it must consider the collective agreement in the context of the statutes that affect it, including the LRA and the OHSA.

There is nothing stated in the OHSA or the OLRA that suggests it has the exclusive jurisdiction over matters raised under the OHSA. The only reference to an election between processing a grievance before an arbitration board and proceeding before a tribunal of the OLRB is found under subsection 50 and deals with allegations of reprisals under the OHSA. Compare that with the Workplace Safety and Insurance Act which specifically bars any rights of action against the employer in the case of a compensable workplace accident or injury. It states, in subsection 118, as follows:

PART XI – DECISIONS AND APPEALS

Decisions by the Board

118 (1) The Board has exclusive jurisdiction to examine, hear and decide all matters and questions arising under this Act, except where this Act provides otherwise.

(2)Same – Without limiting the generality of the subsection (1), the Board has exclusive jurisdiction to determine the following matters:

(3)Whether personal injury or death has been caused by an accident.

(4)Whether an accident arose out of and in the course of employment by a Schedule 1 or 2 employer….

Even with such a strong privitative clause, the arbitration board in Re Welland County General Hospital and Ontario Nurses’ Association 1987 CanLII 1312 (ON WSIAT), 5 W.C.A.T.R 97, [1987] O.W.A.T.D. No. 412, decision No. 53-87 the Board determined that, since the grievor’s claim for benefits had been denied, there was no conflict between the WCA at the time and the collective agreement. Similarly, in the case of Gibson and Ministry of the Solicitor General and Correctional Services GSB # 1478/89 (Kaufman), the GSB ruled that it had jurisdiction over rights claimed under the collective agreement with the exception of work-related injuries, which are compensable under the WCA (WSIB).

The GSB confirmed that opinion in the case of Smith and Bergounhon in which Vice-Chair Abramsky held that the GSB had jurisdiction over grievances claiming compensation that had been denied by the WCB on the basis that not all injuries that occurred at work were covered by the WSIB and that, as there were gaps in the legislation, the WCA did not exempt the entire field of work related injuries.

In the instant case, the there is no such similar claim to exclusive jurisdiction in the OHSA and therefore no grounds upon which I can decline to hear a matter so clearly within the jurisdiction of the GSB.

The next question is whether I should defer to the OLRB. The Employer had submitted that since the complaint to that tribunal was filed before the grievance and since the Union has filed an appeal of the resulting dismissal of the complaint, it has clearly indicated it choice of venue. To avoid a multiplicity of hearings and possible inconsistent findings and remedies, this Board should allow the OLRB to complete is proceedings. Again, I disagree.

I was provided with an OLRB case (Union of Needletrades, Industrial & Textile Employees (UNITE), Local 1305 and Owens Corning Canada) in which the union alleged that the grievor had been disciplined for engaging in a work refusal under s. 43 of the OHSA. Before the OLRB was an appeal of the inspector’s decision and an application under s. 50 of the Act alleging the discipline was a reprisal for his initial complaint. The appeal was withdrawn by the union and the employer objected to the complaint under s. 50 because a grievance had been filed and was proceeding while the OLRB was hearing the matter. The OLRB noted first that the grievance had been filed a week before the application to the OLRB. The matter proceeded to arbitration and at the hearing an agreement was reached to adjourn the hearing pending the outcome of the OLRB proceeding. At the OLRB hearing the employer objected to the OLRB proceeding while the grievance remained outstanding, relying on s. 50 which requires the complainant to elect which forum he/she intended to use. The OLRB noted that the purpose of s. 50 was to direct the parties who have access to an arbitration process to choose whether to proceed to arbitration under a collective agreement or file a complaint to the OLRB. The legislature clearly did not want the parties to these complaints to litigate workplace issues more than once in more than one forum. It referred to the case of Reed Limited [1978] OLRB Rep. Jan 1 in which the Board wrote at pages 4 and 5:

Once it is established, however, that the employee has authorized the union to take the matter beyond the grievance procedure to arbitration, the Board will not deal with any complaint relating to that matter. Whether the employee has chosen arbitration prior to or following the actual filing of the complaint with the Board, the Board will treat the employee as having elected arbitration, and as being bound by that election.

The Board adjourned the matter holding that, although there was no general policy of deferral to arbitration, once the arbitration process has been invoked, the OLRB would not deal with the matter. In its conclusion, the OLRB in the Owens Corning case (supra) was very clear that the Act does not allow an applicant to maintain the same matter in two proceedings and that once an applicant has chosen arbitration as the preferred route, the OLRB will not hear the complaint. It was not a matter of discretion under 50(3) but rather legislative direction pursuant to s. 50(2).

I note, however, that these cases and OLRB pronouncements are specific to s. 50, which deals with allegations of reprisal by an employer against an employee. That is the only time a complainant under the OHAS is required to choose his/her venue for a hearing. Although public policy interests would no doubt approve of the principle that wherever possible parties should be prevented from forum shopping with resulting multiplicity of hearings and inconsistent or contrary results, the legislature did not see fit to expressly limit complaints or appeals under the OHSA to one and only one venue. Where it did intend such a result it was careful to do so, such as in the WSIA and the LRA. In the Owen Corning case, the OLRB noted that there had been an issue raised by the employer about the appeal of the OLRB’s dismissal of the complaint, but that the union had agreed to withdraw the appeal and proceed with the application under s.50. The Board, however, in the Reed case (supra) stated unequivocally that “the Board will not deal with any complaint relating to that matter.”

The instant grievance was filed by five employees, two of whom are not parties before the OLRB. If I were to defer to that Board, the grievance in respect of those two employees could not be subject to that order. They cannot be left without an avenue to air their concerns. That could result in two parallel proceedings involving the same underlying facts and asking for similar relief. It could result in different findings on those facts and, perhaps even more problematic, different and contrary remedies. That would be a most undesirable result. I must note here that I do not know the precise complaint filed by these employees at the OLRB nor do I know the reasons for the dismissal. There may be matters raised in the grievance that have not been raised at the OLRB and it is probable that the remedies being sought are not identical in each forum. In the circumstances I cannot refuse to exercise my authority under the collective agreement to hear and decide these grievances.

I have come to the conclusion that in the circumstances the GSB has and should continue to take jurisdiction of this grievance. The subject of the grievance raises issues clearly within the ambit of the collective agreement provisions. The Union has alleged that the Employer has fostered an unsafe and poisonous workplace and has asked for certain remedies as a result of its action or inaction. There is no compelling reason for me to decline to accept that jurisdiction. There is no legislative direction for me to step aside in favour of another tribunal and there are, in my view, no compelling reasons for me to do so in the instant grievance. Indeed, if the same rationale is applied to the concurrent jurisdiction of the GSB and the OLRB with respect to appeals as has been applied with respect to proceedings pursuant to s. 50 applications, there is every likelihood that the OLRB will refuse to hear the matter and defer to arbitration. Where the parties have agreed on a process through which grievances and complaints can be addressed and, if necessary, rectified, it should require very clear language to convince a tribunal to deny that right to an aggrieved employee.

The next issue raised by the Employer concerns the delay in the filing of the complaint and the resulting prejudice to the Employer inherent in such a delay. The precipitating factor in the work refusal and the OLRB complaint was the incident of September, 2003 but the allegations of the grievors’ date back to before 2000. The particulars set out in the OLRB complaint and provided to counsel in the instant case make reference to events that took place in 1999 and later that created the alleged unsafe and poisonous work environment. Allegations of this kind seldom involve a one time confrontation. They usually arise amid accusations of a long standing pattern of conduct that has, over time, resulted in an untenable work situation for the grievor or complainant. I adopt the approach of Vice-Chair Leighton in Maghaoudi and Ministry of Transportation (GSB # 0988/97) which dealt with the allegation that the decision to surplus the grievor was the culminating act in a pattern f discrimination against the grievor that began two years before the grievance was filed. The Employer raised several objections to the proceeding including an order that the grievance be dismissed on the grounds that it was untimely. Vice-Chair Leighton ruled that the evidence of discrimination dating two years before the culminating incident was admissible to prove the alleged pattern of discrimination. She rejected the Employer’s argument that it would be prejudiced as premature. She allowed that the Employer might raise that argument at the conclusion of the hearing. The Board noted that the Union was not seeking damages for the discreet acts of 1997 and later but only for the discriminatory surplus.

That is the approach I adopt in the instant grievance. The grievors have accused Mr. Erwin of creating a poison work environment by his conduct and comments and that that work environment continued for several years despite their requests for intervention form the Employer. Whether the total of or some of his conduct did in fact create a hostile work environment such that it resulted in damages to the grievors is a matter of evidence and proof. The Board cannot make this determination without hearing the context in which Mr. Erwin’s alleged behaviour existed and the cumulative effect of that behaviour. The allegations dating back to 1999 are part of the pattern alleged by the grievors and are admissible to establish, if possible, the poisoned work environment.

The last objection deals with the Employer’s assertion that the allegations relied on by the grievors do not show a prima face violation of the collective agreement and should be dismissed. The Employer relied on two GSB decisions in which the grievance was dismissed because the Union could not establish a prima face violation of the collective agreement. (Giannou and Management Board Secretariat (GSB # 570/96 and Klonowski et al and Ministry of Finance GSB # 1799/99). In both of those cases the Union had failed to provide particulars that could establish their allegations and the Boards refused to hear the grievances in the circumstances. That is not the case before me.

The grievors have offered numerous examples of what they believe were threatening and intimidating actions by Mr. Erwin. They allege that they told the Employer about his conduct and asked for its assistance, to no avail. Again, I look to the case of Pinazza et al and Ministry of Community Safety and Correctional Services (GSB # 2002-0840) in which Vice-Chair Herlich, in considering whether the Union’s pleadings disclosed a prima face case, was not persuaded that it would be “impossible to arrive at the conclusion that some of the conduct complained of amounted to sexual harassment. Put another way he stated that the “Union’s case was not so weak as would cause me to dismiss it at this stage”. In the instant case I an also not persuaded that some of the allegations relied on by the Union might not disclose a violation of the collective agreement. I am not prepared to dismiss the grievance in the circumstances.

The hearing will reconvene on the dates previously scheduled.

Dated at Toronto this 12^th^ day of July 2005.