GSB# 2003-0187

UNION# 2003-0154-0002

IN THE MATTER OF AN ARBITRATION

Under

THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT

Before

THE GRIEVANCE SETTLEMENT BOARD

BETWEEN

Ontario Public Service Employees Union (Waraich)

Union

• and -

The Crown in Right of Ontario (Ministry of Labour)

Employer

BEFORE

Michael V. Watters

Vice-Chair

FOR THE UNION

David Wright Ryder Wright Blair & Holmes LLP Barristers and Solicitors

FOR THE EMPLOYER

Len Hatzis Counsel Ministry of Government Services

HEARING

August 2, 2007.

Decision

This proceeding commenced in November 2004. An Interim Decision was subsequently issued on January 4, 2005 relating to the scope of evidence that the Union could properly present. There have since been seventeen (17) additional hearing dates. The parties agree that this case is close to conclusion.

The last day of hearing in this matter was held on August 2, 2007. I was then advised that a dispute had arisen between the parties as to the scope of the issues raised by the grievance and the nature of the argument that the Union could advance in closing argument. This dispute arose when respective counsel had discussions relating to what they intended to cover in their closing submissions. In the discussions, counsel for the Union advised that he intended to argue that the differential treatment referenced in the grievance constituted a violation of the management rights provision in article 2 of the collective agreement, as well as a contravention of the no discrimination provision in article 3. More specifically, and with respect to the former article, counsel for the Union indicated that he intended to argue that the Employer’s exercise of its management rights in relation to the grievor was done in bad faith and in a discriminatory and unreasonable manner.

The grievance of March 25, 2003 reads as follows:

“STATEMENT OF GRIEVANCE

I grieve that the management of the Ministry of Labour has and continues to violate the collective agreement. Reference to Article 3-Discrimination-Health and Safety-Ontario Human Rights Code-Ministry of Labour Statement of Principles and Policies-Differential treatment and by creating a poisoned work environment, but not limited to the above.

SETTLEMENT DESIRED

Full redress. Cease and desist the above practices. To be compensated for the above violations and appropriate monies for the above violations due to duress……………………….………………………………………………”

The relevant collective agreement articles provide:

ARTICLE 2 – MANAGEMENT RIGHTS

2.1 For the purpose of this Central Collective Agreement and any other Collective Agreement to which the parties are subject, the right and authority to manage the business and direct the workforce, including the right to hire and lay-off, appoint, assign and direct employees; evaluate and classify positions; discipline, dismiss or suspend employees for just cause; determine organization, staffing levels, work methods, the location of the workplace, the kinds and locations of equipment, the merit system, training and development and appraisal; and make reasonable rules and regulations; shall be vested exclusively in the Employer. It is agreed that these rights are subject only to the provisions of this Central Collective Agreement and any other Collective Agreement to which the parties are subject.

ARTICLE 3 – NO DISCRIMINATION/EMPLOYMENT EQUITY

2.2 There shall be no discrimination practiced by reason of race, ancestry, place of origin, colour, ethnic origin, citizenship, creed, sex, sexual orientation, age, marital status, family status, or handicap, as defined in section 10(1) of the Ontario Human Rights Code (OHRC).

ARTICLE 9 – HEALTH AND SAFETY AND VIDEO DISPLAY TERMINALS

9.1 The Employer shall continue to make reasonable provisions for the safety and health of its employees during the hours of their employment. It is agreed that both the Employer and the Union shall co-operate to the fullest extent possible in the prevention of accidents and in the reasonable promotion of safety and health of all employees.

Counsel for the Employer submitted that the Union’s intent to advance an argument premised on article 2 of the collective agreement amounts to an inappropriate expansion of the grievance. By way of a motion, he asked that the Union’s argument be restricted to articles 3 and 9 and that the Union not be permitted to argue that any differential treatment experienced by the grievor also constitutes a breach of the management rights clause in article 2. Counsel asserted that the discrimination or differential treatment complained of in the grievance has to be linked to the prohibited grounds listed in article 3 and, more specifically, to race and/or disability.

From the perspective of the Employer, the intent to rely on article 2 raises a new and substantive issue which was not part of the original grievance. Counsel stated that matters related to article 2 were not discussed during the grievance process. Additionally, he submitted that such matters have not been the focus of the case, as prosecuted to date. In support of this submission, counsel for the Employer referenced the opening arguments presented on November 22, 2004 at the outset of the case; the Interim Decision of January 4, 2005; and the Union’s Statement of Particulars. On his analysis, a review of the aforementioned sources discloses that the grievance has been advanced as “a discrimination case with a health and safety component”, rather than as a case involving the improper or unreasonable exercise of management rights under article 2 of the collective agreement.

Counsel for the Employer further submitted that to permit the Union to rely on article 2 would create the foundation for “a new independent breach of the collective agreement” and would provide “an entirely separate basis for relief”. In this regard, he noted that this Vice-Chair could potentially find that treatment, which does not infringe article 3, does contravene article 2. Counsel maintained that to permit the Union to advance arguments under both article 2 and 3 would result in “a fundamentally different case” and, indeed, in a new grievance. He asked me to reject any suggestion that the Union’s intended reliance on the management rights provision would merely be an additional legal argument to establish the alleged breach of the collective agreement.

Counsel emphasized that this “new and separate” claim was raised very late in the proceedings after most, if not all, of the evidence has been presented. He submitted that it is unusual to encounter this type of dispute near the end of the case, given that issues of this nature are more commonly addressed at the opening of a hearing. Counsel observed that the Employer might be obligated to present additional evidence if the Union is allowed to advance arguments under article 2. He stated that the grant of such permission would be prejudicial to the Employer. Lastly, counsel argued that my jurisdiction is restricted to a consideration of articles 3 and 9.

The Employer referenced the following awards in support of its position: OPSEU (Waraich) and Ministry of Labour, GSB No. 0187/03 (Watters); Re Cargill Foods and United Food and Commercial Workers International Union, Local 633 (2004), 2004 CanLII 94648 (ON LA), 133 L.A.C. (4th) 306 (Craven); OPSEU (Krajnovic) and Ministry of Natural Resources, GSB No. 2049/90 (Low); Re Hamilton Health Sciences and Canadian Union of Public Employees, Local 4800 (2004); 2004 CanLII 94767 (ON LA), 133 L.A.C. (4th) 139 (Surdykowski); and Re The Reena Foundation and OPSEU, Local 597 (1997), 1996 CanLII 20455 (ON LA), 62 L.A.C. (4th) 93 (Palmer).

In response, counsel for the Union denied that the Union was attempting to expand the grievance, as claimed by the Employer. He advised that, from the perspective of the Union, this case has always been focused on the differential treatment experienced by the grievor. Counsel stressed that the Union’s primary position is that the grievor was discriminated against by reason of the prohibited grounds listed in article 3 of the collective agreement. He argued, however, that liability for the differential treatment complained of could also be premised on a breach of article 2, the management rights clause. In his words, reliance on article 2 is simply an alternate avenue to establish that the Employer’s treatment of the grievor was improper and contrary to the collective agreement. Using terminology associated with the criminal law, counsel described this second basis for liability as “a lesser and included offence”. He stressed that the Union’s evidence was identical for both claims and that the Union was not attempting to offer additional, or expanded, evidence in respect of its position on the applicability of article 2. Counsel observed that the Employer had replied factually to the evidence presented by the Union. It was his assessment that the Employer was simply trying to “immunize” itself from a determination that the evidence also supports a finding that article 2 was breached. I was asked to avoid this result and to deal with the real merits of the dispute between the parties, this being, whether the grievor was singled out and treated differently than other employees.

Counsel for the Union also referenced the opening arguments, the Interim Decision and the Union’s Statement of Particulars. It was his submission that the instant procedural issue cannot be resolved through recourse to these sources for the following reasons: (i) the opening arguments focused on the narrow issue as to the extent of evidence the Union could present given that there had been a settlement of an earlier discrimination grievance; (ii) the parties did not subsequently provide legal argument on the merits of the case; (iii) the comments in the Interim Award have to be viewed in the limited context in which they were made; and (iv) the particulars, on a fair reading, speak of differential treatment in a broad sense and reference matters that would be captured by both articles 2 and 3 of the collective agreement. Counsel further noted that no evidence was presented as to the content of discussions during the grievance process. He argued that, as a consequence, the present issue cannot be resolved on that basis.

Counsel referenced the language found in the grievance of March 25, 2003. He observed that, unlike the earlier grievance of April 17, 2001, this grievance is broadly worded and references a number of bases on which to found liability, including the following: “Article 3-Discrimination-Health and Safety-Ontario Human Rights Code-Ministry of Labour Statement of Principles and Policies-Differential treatment…creating a poisoned work environment…”. Counsel noted that the grievance does not link differential treatment to article 3. It was his submission that the Employer should have understood, from the wording of the grievance, that the grievor’s complaint was about more than just article 3. In any event, he suggested that such wording can be reasonably construed to encompass an article 2 component.

Counsel reiterated that the Employer, in its case, had responded factually to the myriad of events and circumstances described in the grievor’s evidence. It was his assessment that the Employer would not be prejudiced were the Union to be permitted to present legal argument premised on article 2 of the collective agreement. Counsel suggested that, if this Vice-Chair was satisfied that the Employer had, in fact, misunderstood the nature of the Union’s case, then its interests could be safeguarded by allowing the Employer to call evidence relevant to the exercise of management rights under article 2.

The Union referenced the following awards in support of its position: Re Enbridge Gas Distribution Inc. and Communications, Energy and Paperworkers Union of Canada, Local 975 (2006), 2006 CanLII 93290 (ON LA), 150 L.A.C. (4th) 225 (Burkett); and Re Tenaquip Ltd. and Teamsters Canada, Local 419 (2002), 2002 CanLII 79054 (ON LA), 112 L.A.C. (4th) 60 (Newman).

I have considered the submissions and the authorities presented by the parties. After so doing, I have decided, for the following reasons, to deny the Employer’s motion and to permit the Union to make arguments on liability premised on article 2 of the collective agreement:

i. I accept the submission of the Union that the wording of the grievance is sufficiently broad to allow it to advance legal arguments to establish a breach of article 2 and to seek a remedy for same. I do not construe the grievance as restricting the complaint to discrimination and/or differential treatment based on infringement of a prohibited ground listed in article 3. On my reading, the grievance is much broader in scope than the earlier discrimination grievance of April 17, 2001. I also note the concluding words of the first paragraph of the instant grievance, as reproduced above, which state, “but not limited to the above”. In summary, I find that I have jurisdiction to hear and resolve issues related to article 2 under the language of the grievance filed in this case. I do not consider this to be an improper expansion of the grievance, or that it constitutes a new grievance, as was the situation in Krajnovic and Re Reena Foundation;

ii. I have not been persuaded that much turns on the arguments made at the opening of the case or on the Interim Award issued in relation thereto. Both were focused on the narrow issue of what restrictions should be placed on the Union’s evidence given the existence of a Memorandum of Settlement dated June 7, 2002. Neither the openings nor the Interim Award expressly addressed or contemplated the issue now before me, that is, the scope of the issues raised by the grievance and the nature of argument the Union could advance in closing;

iii. A review of the Union’s Statement of Particulars is not determinative of the present issue. While certain paragraphs speak of conduct which can be linked to the prohibited grounds listed in article 3, other paragraphs focus on complaints of a broader nature which, in my judgment, can arguably be the subject of article 2. By way of example, I reference the paragraphs that speak of the “micro-managing” on the part of the District Manager;

iv. As no evidence was presented as to the discussions which occurred during the grievance procedure, this is an area that cannot be of assistance in the resolution of this specific issue; and

v. As noted at the outset, there have been seventeen (17) hearing dates during which both parties have presented a substantial volume of evidence concerning the facts and circumstances giving rise to the grievance. A lot of the evidence relates to the grievor’s handicap and to his resulting need for accommodation. These are matters connected to articles 3 and 9. Equally so, a considerable amount of evidence has been presented by both parties in respect of events, incidents and communications that do not, on the surface, appear to be directly linked to the prohibited grounds. Rather, it is arguable that the evidence relates to how the District Manager exercised her management rights vis-à-vis the grievor. In view of the length of time it has taken to get to this stage of the case, and given all of the evidence led, I think it preferable to address the threshold issue in this dispute, this being, whether the grievor was discriminated against, or subjected to differential treatment, by the Employer. This, in my judgment, necessitates consideration of articles 2, 3 and 9 of the collective agreement.

It is my understanding that the Employer has not closed its case. To ensure that it is not disadvantaged by this ruling, I will permit the Employer to adduce additional evidence relating to the exercise of management rights under article 2. I do not anticipate that the exercise of this option will significantly delay the conclusion of this long case. Counsel for the Employer is to advise counsel for the Union, in general terms, as to any such evidence he intends to call. In the absence of agreement, any dispute concerning the nature or admissibility of the proposed evidence can be addressed prior to the resumption of the hearing through a conference call.

For all of the above reasons, the Employer’s motion is denied.

Dated at Toronto, Ontario this 4th day of September, 2007.