GSB#2009-1091, 2010-1854

UNION#2009-0526-0019, 2010-0526-0050

IN THE MATTER OF AN ARBITRATION

Under

THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT

Before

THE GRIEVANCE SETTLEMENT BOARD

BETWEEN

Ontario Public Service Employees Union (Evangelista et al)

Union

• and -

The Crown in Right of Ontario (Ministry of Attorney General)

Employer

BEFORE

Daniel Harris

Vice-Chair

FOR THE UNION

Jane Letton Ryder Wright Blair & Holmes LLP Barrister & Solicitors

FOR THE EMPLOYER

Stewart McMahon Ministry of Government Services Labour Practice Group Counsel

HEARING

May 4, 2011.

Decision

1These matters came on for hearing on May 4, 2011. There are two group grievances dealing with the scheduling of court reporters for bail hearings at the Old City Hall Courthouse on weekends and statutory holidays (WASH court). Currently, anyone arrested on the weekend in the City of Toronto makes their first appearance at the Old City Hall courthouse. Except for the court reporters, the court personnel are drawn from all of the courts in the City of Toronto on a rotating basis. As for the court reporters, only the court reporters from the Old City Hall courthouse are rotated through the WASH court assignment. These weekend shifts are over and above the regular Monday to Friday schedule. Not only are the court reporters working more shifts than other court reporters in the City, but extra transcript work is assigned from the extra sittings. The Union says that the inequitable assignment of these shifts to the Old City Hall court reporters is contrary to article 2.1, Management Rights, article 3 No discrimination/Employment Equity and article 60.1, Health and Safety.

2The Union said that the extra shifts cause increased sickness. They also negatively impact vacations, because the court reporters must arrange their own shift swaps if their WASH court assignments occur during a scheduled vacation time. Medical and dental appointments may have to be kept by way of taking a vacation day. Finally, the court reporters suffer increased transportation costs because they have to attend work on additional days.

3As part of its opening statement, the Union filed some documentary evidence, including the current three-month WASH court schedule. A brief review of that schedule discloses that the 18 Old City Hall court reporters generally worked one extra shift per month. Two of them worked four WASH court shifts in the three month schedule.

4The Employer took the position that there was no prima facie case to meet. It assumed that breaches of articles 2.1, 3.1 and 60.1 were alleged. It noted that the hearings were previously adjourned to permit the Union to obtain medical evidence, but no such evidence was being proffered by the Union. It also said that there were no allegations of bad faith.

5As to the alleged breach of article 3.1, the Employer said there was no allegation of fact that raised a breach of the Ontario Human Rights Code except for one individual who said they had not pursued their religious observances because it would possibly conflict with the WASH court schedule. In that latter regard, the Employer said that there was no indication that the individual had asked for an accommodation that was denied, nor were there any particulars of what potential religious observances were impacted.

6As to the alleged breach of article 60.1, Health and Safety, the Employer said the caselaw established that more than tension, stress, irritation or unhappiness was required to establish a breach; serious illness is required to establish a breach. In the absence of medical evidence, serious illness could not be established.

7The Union said that is was premature to dismiss the grievances without first hearing from the grievors regarding the very real stress they suffer from these work assignments. It said that the differential treatment here is unfair with respect to its impact on the grievors’ ability to schedule medical and dental appointments and with respect to the extra transcript work generated by the WASH court shifts. The grievors ought to be able to give viva voce evidence on these points, as was the case in many of the authorities relied upon by the Employer.

8In reply, the Employer reiterated its submission that the Union was granted the opportunity to obtain medical evidence to support its claim, which it had not done.

9The following authorities were referred to: OPSEU (Dobroff et al) and the Crown in right of Ontario (Ministry of the Environment), GSB File Nos. 2003-0905, 2003-0906, 2004-3397, April 28, 2008; OPSEU (Sutherland) and the Crown in right of Ontario (Ministry of Labour), GSB file No. 2006-0519, December 12, 2008; OPSEU (Sager, Shelly et al) and the Crown in right of Ontario (Ministry of Transportation), GSB File No. 2000-0377, May 7, 2004; OPSEU (H. Keeso) and the Crown in right of Ontario (Ministry of Correctional Services), GSB File No. 0009/88, December 16, 1988.

10Having carefully considered the submissions of the parties and the authorities relied upon, the Employer’s application to dismiss the grievances is denied.

11In essence, the Board is being asked to weigh the quality of the Union’s evidence, which is not appropriate at this juncture. For example, I am asked to reject the assertion of Mr. Rubinoff that he has foregone his religious observances because the scheduling of WASH court would make attendance difficult. The Employer also asks the Board to weigh the quality of the medical evidence that the scheduling of Wash court has caused illness. Rather, at this juncture, both of those allegations of fact are to be taken as true. If such concerns arise expressly or inferentially from the collective agreement, then the Board has the jurisdiction to hear the matters. Manifestly, those two examples are grounded in articles 3.1 and 60.1 which read as follows:

3.1.1 There shall be no discrimination practiced by reason of race, ancestry, place of 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).

60.1 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.

12Accordingly, the Board has the jurisdiction to hear and determine these matters. Further, in my view, to weigh the evidence without hearing the evidence of the grievors would be contrary to the rule of natural justice that requires that each party be given an opportunity to adequately state its case. Finally, in only the clearest of cases should the board decline to hear a matter before concluding it has no jurisdiction.