GSB#2012-2459, 2012-2460, 2012-2983
UNION# 12-116, 12-122, 12-137
IN THE MATTER OF AN ARBITRATION
Under
THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT
Before
THE GRIEVANCE SETTLEMENT BOARD
BETWEEN
Canadian Union of Public Employees Local 1750 (Union)
Union
- and -
The Crown in Right of Ontario (Workplace Safety and Insurance Board)
Employer
BEFORE
Felicity Briggs
Vice-Chair
FOR THE UNION
Emma Phillips Sack Goldblatt Mitchell LLP Counsel
FOR THE EMPLOYER
Michael Smyth Hicks Morley Hamilton Stewart Storie LLP Counsel
HEARING
January 7, 2013.
Decision
1Three grievances have been filed and referred to the Board alleging various breaches of the lay-off provisions of the Collective Agreement. Two of the outstanding matters are policy grievances and the third is a group grievance.
2The first allegation is regarding new expedited bumping practices that result in “early” bumping before the expiration of an employee’s notice of lay-off period. In the second grievance the Union asserts that the Employer has failed to provide it with meaningful advance notice of lay-off. The final grievance contends that the Employer has failed to abide by the terms of a Memorandum of Agreement by laying-off employees as the result of a transfer of the prevention mandate from Worker’s Safety Insurance Board (“hereinafter referred to as “WSIB”) to the Ministry of Labour.
3On their face, the three grievances requested, by way of remedy:
Rescind all notices to affected employees such that they are restored to their jobs and any other redress the Vice Chair deems appropriate;
Employer to immediately cease and desist the expedited bumping process it has recently undertaken;
Immediate stop the upcoming November 22, 2012 Art 6 redundancy notices noting the employer has failed to provide advance notice; and
Employer to follow established past practice under Article 6 and any other subsections of the Collective Agreement – and any other redress the Vice Chair deems appropriate.
4The Union is seeking a request for interim relief. This decision deals only with that application.
5According to the application for interim relief sought, the Union is asking this Board for an order to direct the Employer to:
Allow the entire period notice to elapse before effecting a “bump” and displacing other employees;
“Freeze” the notice periods for those employees who have already received notices of lay-off as the result of early bumps until the merits of the grievance have been fully adjudicated;
“Freeze” the recall periods for any employee who has accepted a Voluntary Exit package subsequent to being issued a notice of lay-off as the result of early bumps until the merits of the grievance have been fully adjudicated;
Provide the Union with 20 working days advance notice of lay-offs, including specific positions and names of individual employees who the Employer intends to lay-off, and engage with the Union in “meaningful consultation” about the lay-off, as required under Article 6.03 of the Collective Agreement;
Cease laying-off employees as a result of the transfer of the “Prevention” mandate to the Ministry of Labour, including employees who have been bumped into new positions, in accordance with the June 30, 2011 Memorandum of Agreement; and
Any other remedy required to preserve past lay-off practices and to mitigate the impact of the Employer’s new expedited bumping practices.
6The Employer was of the view that this Board is without jurisdiction to make interim orders because they are not procedural within the meaning of section 48(12)(i) of the Ontario Labour Relations Act, SO 1995, c 1, Schedule A. In the alternative, the application for interim relief should be dismissed because there is no urgent need for the order. Further, the balance of harm favours the Employer. Indeed, it was the Employer’s contention that it would suffer considerable and irreparable harm if the interim relief were granted. For the purposes of this application and without prejudice, the Employer agreed that the Union has an arguable case on the merits.
7In advance of the hearing into this interim relief application the parties filed declarations of fact. The Union provided a declaration from Harry Goslin, President of the Ontario Compensation Union Canadian Union of Public Employees, Local 1750 and Martim Gaspar, Vice President of OCEU. The Employer provided a declaration from Gurjit Brar, Director of Labour Relations, Lily Au, Human Resource Business Partner and Paul Simourd, Associate Human Resources Business Partner.
8The declarations and exhibits put before this Board were considerable and the parties spent an entire day of hearing arguing this interim motion. It is not my intention to set out all of the facts although a brief summary is necessary and will be provided below.
9The relevant sections of the Collective Agreement are:
Article 6.02
The Employer will make “every reasonable effort” to minimize or eliminate adverse effects of organizational/technological changes on employees.
Article 6.03(c)
At least 20 working days in advance of issuing notices of lay-off, the Employer and the Union will have “meaningful discussion” and the Employer will provide the Union with written notice of inter alia, the nature of the organizational or technological change, the date of the change, the number of positions affected, the job titles affected, and the name and seniority date of employees likely to be affected.
Article 6.05
The Employer must provide notice to employees affected at least 130 days before the change will occur if the employee’s job will be significantly changed or if the employee will become redundant.
Article 6.05(a)
If the employee’s job has significantly changed, the employee has the choice of accepting the new job (and being provided with up to 8 months of retraining), or declining the new job.
Article 6.05(b)
If the employee’s job has been declared redundant, the employee will be offered an offer of Voluntary Exit or placement opportunities under Articles 5 and 6. If the employee does not accept the Voluntary Exit offer, the Employer will select the most suitable of: a Voluntary Exit Match, a Priority placement match under Article 5.03, or a displacement of a less senior bargaining unit member (a bump).
Article 6.05(c)
Each employee is entitled to two (2) Priority placements as a result of a notice of lay-off.
Article 6.06(a)
If the most suitable match is a Voluntary Exit match, the affected employee will be placed into that position and the exiting employee will be provided with a Voluntary Exit package.
Article 6.06(c)
If there is no suitable Voluntary Exit match or Priority placement match, the employee is encouraged to request matching to posted vacancies or Voluntary Exits no more than two salary grades lower in their own location or other geographic locations.
Article 6.06(e)
Employees have the right to remove themselves, once only, from a Priority match during the 60 day trial period and be considered again for Priority placement.
Article 6.06(g)
Where there is no position in the current geographic location at the employee’s current salary grade and the employee is willing to relocate, the Employer will pay the costs of relocation to any vacancy in the province that is no more than two salary grades lower than the employee’s current salary grade.
Article 6.07
If the most suitable option is to displace an employee with less seniority, the Employer will displace the least senior incumbent within the current geographic location following an agreed upon protocol.
Article 6.07(c)
Where no position is available in the employee’s current geographic location and the employee has expressed a wish to relocate, the Employer will also consider bumping employees in other geographic areas.
Article 6.08
An employee who is moved into a lower salary grade position as a result of a notice of lay-off will not have his or her salary reduced. The employee will maintain his or her current salary until the salary falls within the salary range of the new job. The employee will receive the next 1 year general increase.
10The Memorandum of Agreement referred to by the Union was signed on June 30, 2011 and is attached to the Collective Agreement. It was negotiated after the Government of Ontario announced that it would be transferring the health and safety prevention function of the WSIB to the Ministry of Labour. The relevant portion of that agreement stated:
No staff permanently employed as of the date of signing of the Collective Agreement will be laid off as a result of the transfer of the prevention mandate to the Ministry of Labour.
11It was an uncontested fact that until the fall of 2012 when an employee received notice of lay-off, the Employer waited until the end of the employee’s notice period before instituting a bump. This practice allowed for “Priority placement”, posting into a vacancy that was caused by various circumstances such as retirements, resignations transfers or other employees electing to take Voluntary Exit packages.
12Prior to the signing of this Collective Agreement, the parties had negotiated guidelines that stated that the Employer will not effect a bump until the employee’s notice of lay-off period has been nearly exhausted.
13In early 2012 the parties met and the Employer announced that it had a new strategic plan for becoming “more streamlined and efficient”. This plan would result in the reduction of employees needed to deliver the service. The Union was given a list of 160 employees the Employer thought would be affected by the organizational change.
14In February of 2012 it became apparent to the Union that the Employer intended to change its practice regarding the lay-off period. The parties held discussions about this matter through the spring and summer of 2012.
15Since that time employees who have received lay-off notices have been bumped into new positions during the period of their lay-off notice. Further notices were issued as the result of these bumps. In addition to the employees who have been bumped, at least two employees have accepted Voluntary Exit offers and their employment has been terminated.
16As noted above, the Employer conceded that in previous instances of lay-offs, it did wait until the notice period had almost elapsed before displacing other employees. However, it was contended that in those situations the number of employees affected was “substantially less than the number of employees affected in 2012 as the WSIB goes through its transformation”. Those lay-offs took place under a different business plan.
17The Union set out a number of individual fact situations in its declaration documents. In its view, those circumstances reveal a violation of the long standing practice and the Collective Agreement.
UNION SUBMISSIONS
18Ms. Phillips, for the Union, contended that the use of the full notice period is necessary to provide the affected employee every opportunity to find a suitable position before causing another employee the unnecessary angst of being bumped. The full notice period provides an opportunity for “Priority Placement” or to retrain, relocate or apply for a vacancy two salary grades lower. These options minimize the effect of organizational changes and workplace disruption. For example, in the case of the lay-off where notice was given in February of 2012, a number of employees found priority placements on or after the 127th day of their notice period.
19In September of 2012 the Employer instituted a new expedited bumping practice whereby employees can be bumped at any time during the notice period. According to the Union, this new practice causes a chain reaction of numerous bumps and Voluntary Exits that would not otherwise have occurred had the Employer followed its old practice. It was suggested that notices of lay-off are “stacked up” and “excelerated” causing enormous disruption thereby allowing the Employer to lay-off the lowest seniority employees more quickly thereby forcing them to take a Voluntary Exit because there are no lower seniority employees to bump.
20The Union urged that the interim relief order is essential. This chain reaction caused by the Employer’s actions is creating lay-offs that might otherwise not take place because there is no way to determine if the employees will find other positions during the notice period. If the Union is successful in the litigation of these grievances, which will take many days to hear, it will be very difficult, if not impossible, to unwind the chain of displacements. Indeed, many employees will no longer be employees having taken a Voluntary Exit.
21Regarding the Union’s request that the Employer be ordered to provide advance notice and engage in meaningful discussion, it was urged that minimizing of the adverse affects of the organizational change can only take place when the Union is in receipt of all the facts including the names of the affected employees and the specific positions that will be laid off. At an October 24, 2012 meeting the parties had some discussion but failed to agree on the extent of possibly affected employees. Ultimately the Employer told the Union that almost the entire bargaining unit was potentially affected. This “blanket notice” was a “radical departure” from the past practice according to the declaration of Mr. Goslin. It was submitted by the Union that this Employer action ensures that the Union cannot best protect the interest of its members and makes a mockery of “meaningful discussion”. The Union is foreclosed from creating or proposing options in an effort mitigate or eliminate the adverse effects.
22Regarding the third grievance, the Union asserted that seven of the employees protected by the Memorandum of Agreement were also part of a large group who were on a list of employees to be laid off. When the Union protested this was a violation of the Memorandum of Agreement, the WSIB altered their notice stating that their positions had ceased to exist and they were to choose one of two options: they could secure a position through Priority Placement, bump another employee or accept a Voluntary Exit package. They have been treated like all others in the new expedited process.
23According to the declaration of Mr. Goslin, the interim relief is needed to ensure that irreparable harm does not occur. Those harms include:
Emotional and psychological stress of being made redundant and being removed from their jobs before the notice period has expired;
The stress of being placed into new positions, adjusting to new responsibilities with potentially new management and colleagues;
Economic hardship of lost earnings resulting from being placed at lower salary grades or from having employment terminated;
Relocation disruption;
Negative impact on pensionable earnings from lower salary grade or early retirement;
Adverse impact on the Union’s ability to protect its members due to expedited bumping, loss of meaningful discussion and insufficient advance notice;
More improper lay-offs undertaken during the litigation of this matter.
24The Union took the position that there would be negligible harm done to the Employer if the application were granted. Even if there is some economic hardship to the Employer as the result of the interim relief, it is a type of inconvenience that every employer faces on an ongoing basis. Those operational costs are far outweighed by the individual worries for the employees improperly laid-off. If the grievances fail on the merits, the Employer can bring about its new practice. However, in the meantime the status quo should prevail so that no harm is done.
25The Union relied upon Re The Crown in Right of Ontario (Ministry of Labour) and OPSEU (Nield) GSB#1471/96 (Roberts); Ontario v. OPSEU [1997] O.J. No. 427 (Div. Ct); Re The Crown in Right of Ontario (Ministry of Health) and OPSEU (Belanger) GSB #976/93 (Kaufman); Re The Crown in Right of Ontario (Management Board Secretariat) and OPSEU GSB#0001/03 (Stewart); Re The Crown in Right of Ontario (Ministry of Community Safety and Correctional Services) and OPSEU (Ranger) GSB#2002-2375 (Leighton); Re The Crown in Right of Ontario (Ministry of Government Services and AMAPCEO and OPSEU GSB#2003-0001 (Stewart) (March 4 2009); Re The Crown in Right of Ontario (Ministry of Government Services and AMAPCEO and OPSEU GSB#2003-0001 (Stewart) (February 16, 2010); Re The Crown in Right of Ontario (Ministry of Government Services) and AMAPCEO and OPSEU GSB#2003-0001 (Stewart) (March 1, 2010); Re The Crown in Right of Ontario (Ministry of Government Services) and AMAPCEO and OPSEU GSB#2003-0001 (Stewart) (May 20 2010); Re The Crown in Right of Ontario (Ministry of Correctional Services and OPSEU (Sammy et al) GSB#2001-0224 (Harris); Re Canadian Broadcasting Corp. and C.E.P. (Knopf) (1996), 51 C.L.A.S. 245; Re York University and YUFA (July 5, 1996), unreported (Knopf); Re Toronto East General Hospital and Ontario Nurses’ Association [2012] O.L.A.A. No. 288 (Stephens); Re Community Nursing Home and Ontario Nurses’ Association (2008), 171 L.A.C. (4th) 143 (Newman); Re Community Living Niagara Falls and SEIU, Local 204 (Tacon) [1996] O.L.A.A. No. 388; and Re Hamilton Health Sciences Corporation and CUPE, Local 839 (2001), 2001 CanLII 62054 (ON LA), 94 L.A.C. (4th) 156 (Adams).
EMPLOYER SUBMISSIONS
26Mr. Smyth, for the Employer, argued that this Board is without jurisdiction to grant the interim relief application requested by the Union. It was urged that according to section 48(12)(i) only interim orders dealing with procedural matters fall within an arbitrator’s jurisdiction. It states:
48(12) An arbitrator or the chair of an arbitration board, as the case may be, has power,
(i) to make interim orders concerning procedural matters;
27Mr. Smyth acknowledged that there has been a line of cases from this Board that have consistently determined jurisdiction over such matters beginning with Re The Crown in Right of Ontario & OPSEU – Nield (supra). However, it was urged that this jurisprudence must be revisited given the decision in Re Ontario Power Generation v. Society of Energy Professionals, 2007 CanLII 342 (ON SCDC), [2007] O.J. No. 72 [OPG]. A review of that decision reveals there can be no doubt that too expansive a meaning has been given the term “procedural matters” by this Board.
28The Employer noted that the Divisional Court in Re OPG (supra) decision clarified that the Re Nield case does not mean that this Board can issue any form of interim order. It was said at paragraph 41 and 42:
In my opinion, the Court’s statement in Nield simply reiterates the accepted principle that remedial provisions in the LRA should be liberally interpreted. Nield does not stand for the proposition that s. 48(12)(i) permits any form of interim order. Nor does Nield relieve an adjudicator from his or her obligation to employ the various tools of statutory interpretation to discern the meaning of a remedial provision.
One interpretive tool available to the arbitrator was to look at the legal meaning of “procedural matters” (Ruth Sullivan, Sullivan and Driedger on the Construction of Statutes, 4th ed. (Markham: Butterworths, 2002) at 47). A “procedural matter” is a matter of “procedure”. “Procedure” relates to how a proceeding is conducted. Black’s Law Dictionary, 8th ed., defines “procedure” as “1. A specific method or course of action. 2. The judicial rule or manner for carrying on a civil lawsuit or criminal prosecution.” The legal meaning of “procedural matters” therefore does not include substantive relief. (emphasis not mine)
29The Employer also relied upon comments made by Divisional Court after it considered the legislative history of section 48 of the Act. At paragraph 45 it was said:
…..These amendments curtailed the power of arbitrators to make interim orders by explicitly removing their ability to grant “interim relief”, by removing their ability to make orders that they “consider appropriate”, and by limiting the scope of interim orders to “procedural matters”. In my opinion, this suggests that the Ontario Legislature did not intend that an “interim order concerning procedural matters” would include interim relief that an arbitrator considers appropriate in the circumstances.
30As the interim relief being sought by the Union in this case is substantive and not procedural in nature, this Board lacks the jurisdiction to grant the request, according to the Employer. In the alternative, in the event that this Board is of the view that it has the jurisdiction to grant the Union’s interim relief request, the Union has not met the necessary test that has been established for interim orders. An applicant making such a request must be able to show:
There is an arguable case on the merits
The balance of harm or inconvenience is favourable to the applicant; and
An interim order is required on an urgent basis.
31The Employer contended that the balance of harm favours it in this case and not the Union. Further, there has been no proof provided that this order is required on an urgent basis.
32The WSIB set out in some detail in its declarations that it is undergoing a significant organization change. Those changes are causing the employee movement that is at the heart of these grievances.
33In particular, the Employer contested the Union’s assertion that choices made by employees are effectively permanent and cannot be undone in the event the grievances succeed. The claims found in various declarations provided to this Board in this regard are highly speculative and inconsistent with the Employer’s declarations. Simply put, it is not a fact that allowing 130 days to expire prior to having employees move will lead to fewer employees left in the workplace. This speculative claim is insufficient to ground an interim order. Further, contrary to what has been suggested by the Union, employees continue to have choices for the entire period of 130 days irrespective of what occurs during that time. Again, the Union has not established that there is harm that cannot be remedied on a retroactive basis. A monetary award would be a sufficient remedy.
34The Employer also took issue with the Union’s contentions regarding emotional and psychological stress to employees in the workplace. Indeed, the Union did not and could not establish that an employee who received a lay-off notice due to the early bumping practice would not have received a lay-off notice even if the 130 days’ notice period had expired before the bumps occurred. There is no direct evidence before this Board of stress caused by an early bump. For stress to be considered, direct evidence is necessary. Unlike Re The Crown in Right of Ontario (Ministry of Correctional Services and OPSEU – Sammy et al (supra) relied upon by the Union, there is identifiable organizational harm to the employer in this instance.
35Mr. Smyth suggested that with the exception of those employees who chose to take a Voluntary Exit package, employees are not harmed financially as suggested by the Union. Salaries are red circled until the salary amount is regained and there is one- year general increase in wages. Clearly, no harm will be done during the course of the litigation of these grievances that cannot be remedied.
36The Employer rejected the Union’s contention that it has not given the Union all of the information to which it is entitled under the Collective Agreement. Further, it takes issue with the assertion that the Union cannot represent its members adequately.
37The Employer asked the Board to reject the Union’s request because much of the interim relief requested is precisely the remedy being sought on the merits of the grievances. This Board has consistently dismissed applications where the relief sought touched upon an issue central to the dispute or was a substantive matter. In instances where the interim order cannot be separated from the substantive issue, the request has been denied.
38Mr. Smyth also submitted that the Union has failed to show that that there is an urgent need for the interim relief. The Employer waived a step meeting in the grievance procedure to allow the Union to directly refer these matters to the Board for a scheduled hearing in November or December of 2012. Unfortunately, the Union advised that its counsel was not available until 2013 revealing that the Union itself has not treated this matter with great urgency.
39The Employer relied upon some of the same cases proffered by the Union. In addition, it asked the Board to consider Re Ontario Power General v. Society of Energy Professionals, 2007 CanLII 342 (ON SCDC), [2007] O.J. No. 72; Re The Crown in Right of Ontario (Management Board Secretariat) and Ontario Public Service Employees Union (Union Grievance), GSB#2002-0610 (Petryshen) (September 4, 2002); Re The Crown in Right of Ontario (Ministry of Government Services) and AMAPCEO GSB#2011-3384 (Herlich); Re The Crown in Right of Ontario (Ministry of Transportation) and OPSEU GSB#2002-2332 (Abramsky); Re The Crown in Right of Ontario (Ontario Liquor Control Board) & Ontario Liquor Control Boards Employees’ Union (McIlwain) GSB#2003-2077 (Watters); Re Chatham-Kent Board of Health and Ontario Nurses’ Association (2006), 2006 CanLII 93318 (ON LA), 151 L.A.C. (4th) 76 (Crljenica); Re Toronto Transit Commission and A.T.U. Local 113 [1995] O.L.A.A. No. 1063; and Re The Crown in Right of Ontario (Ontario Human Rights Commission) and OPSEU (Fox et al) GSB#2001-0507 (Stewart).
UNION REPLY SUBMISSIONS
4032. Ms. Phillips, in reply, said that the Employer cannot be allowed to circumvent the Collective Agreement merely because it has a new business plan. There have been re-organizations in the past and they have not caused the havoc that is being wreaked in this instance.
41The Union again noted that at least one employee has stated that she would not have accepted a Voluntary Exit package but for her concern that she would not be able to successfully bump another employee when she herself was bumped. That type of harm cannot be remedied after what will obviously be lengthy litigation.
42The Union took issue with the Employer’s assertion that its interim order request will result in members of the bargaining unit having more rights than they are entitled to under the terms of the collective agreement.
43Regarding advance notice to the Union, Ms. Phillips noted that given the enormity of the organization changes and the notices issued to date, it is essential that the Employer be ordered to give all appropriate information to the Union and to engage in meaningful discussion.
44The Union noted that given that some of the lay-off took place in September of 2012, economic impact will be felt by members of the bargaining unit in the fall of this year prior to the conclusion of the litigation of the merits of this case.
45The Union relied upon Re Labourers’ International Union of North America, [2004 OLRB REP. March/April 338; Re Brick and Allied Craft Union v. Marble, Tile & Terrazzo 2007 CanLII 16241 (ON LRB); Re Tiercon Corp. (formerly 1675386 Ontario Inc.) v. Workers United Ontario Council, 2011 CanLII 6254 (ON LRB); Re Canadian Pacific Ltd. V. Brotherhood of Maintenance of Way Employees, Canadian Pacific System Federation (1996), 1996 CanLII 215 (SCC), 136 D.L.R (4th) 289; Re Bell Canada v Communications, Energy and Paperworkers Union of Canada, [2001] CIRB No. 116; Re Sawyer v. Loblaw Companies Ltd., [2011] O.J. No. 5529; Re International Brotherhood of Electrical Workers Local 1574 v. Northwestel Inc. [1986] Y.J. No. 43; Re Asociation des bibliothecaires, professeures et professeurs de l’Universite de Moncton v. Universite de Moncton 2008 NBBR 47; Re Aranas v. Toronto East General and Orthopedic Hospital Inc., 2005 CanLII 1056 (ON SC); and Re Practical Nurses Federation of Ontario v Mississauga Hospital, 1994 CanLII 9835 (ON LRB).
DECISION
46The Employer has raised an objection regarding this Board’s jurisdiction to grant the Union’s request for interim relief in this matter suggesting that it is more substantive than procedural. The argument put forward by the Employer challenges this Board’s long-standing jurisprudence in this regard. While I understand there may be some attraction to the Employer to overturn the Board’s view, it is not necessary for me to make such a determination because, even assuming jurisdiction over the request, the Union’s application is denied.
47Accordingly, my consideration of this request assumes, without deciding, jurisdiction.
48It is interesting to note that the very considerable documentation provided to this Board to assist in the determination of the interim request appears to be much of the evidence that both parties will rely upon in the hearing held to determine the merits of the grievance. Indeed, while further examples might be referred to by either or both parties, it is difficult to imagine that the evidence necessary for final disposition of the matters will be much more extensive. Both the Employer and the Union gave many examples of how various employees have been or might be affected. Additionally, the Employer outlined how it would be significantly stilted in its efforts to implement its new business plan.
49As noted above, for the purpose of this request the Employer concedes that the Union has an arguable case on the merits. Therefore, this Board is left with an assessment of the balance of harm, which may include, as noted by Vice Chair Herlich, in Re The Crown in Right of Ontario (Ministry of Government Services) and AMAPCEO (Union Grievance) (supra), may include an assessment of the “harm resulting from not granting as compared to that resulting from granting the relief sought”.
50Vice Chair Petryshen was asked to consider a request for interim relief in Re The Crown in Right of Ontario (Management Board Secretariat and OPSEU (supra). In that decision he succinctly summarized the appropriate matters for consideration. He said, at paragraph 6:
In Ministry of Correctional Services and OPSEU (Sammy et al) supra, Vice-Chair Harris referred to the two-fold test for interim relief. The first issue for determination is whether there is an arguable case in the main proceeding. In the case at hand the Employer conceded that the Union has an arguable case and that its interim relief application is not frivolous or vexatious. The second issue for determination is whether the balance of harm or inconvenience favours one side or the other. In Re Globe and Mail and Southern Ontario Newspaper Guild (Kelly), supra, the arbitrator canvassed a number of factors relevant to the balance of harm issue, including labour relations considerations, the ability of the unsuccessful part to be compensated in damages, the expedition or lack thereof in bringing the application for interim relief and the extent of the delay before the resolution of the grievance. As the decisions in this area suggest, the primary focus in an interim relief application is on whether the applicant has established that there are compelling reasons to alter the status quo. An alteration of the status quo may be appropriate if the harm to the applicant as the result of the alleged breach of the collective agreement cannot be adequately addressed with a remedial response at the conclusion of the proceeding.
51In the result, Vice Chair Petryshen found that the alleged breach could be adequately addressed with damages at the conclusion of the proceeding. In my view, after a review of the considerable documentation, including extensive declarations, that is also true in the case at hand. The Union urged that permanent and irreparable harm will be done if this request is not granted. I am not persuaded on the evidence before me that this is the case. While various changes that might arise as the result of the lay-offs may be cumbersome to undo or otherwise remedy, if that is the final determination of the grievances, a remedy is possible. There was nothing offered by the Union that would lead me to find that the Board would be unable to fashion a remedy that comprehensively redresses the facts of this case.
52While the Union was able to show that certain employee movement will take place as the result of the new expedited bumping practice, it did not prove that this early movement takes away the choices employees have under the Collective Agreement. As noted by the Employer in one of the declarations, having been bumped at a time other than the end of the notice period does not disentitle employees of their rights under Article 6 of the Collective Agreement for the remainder of their working notice period.
53Both the Employer and the Union addressed the matter of stress upon the members of the bargaining unit. The Union asserted that employees are being unduly stressed by the expedited process. The Employer contended that in various conversations with employees it has been communicated by affected individuals that action taken “sooner rather than later” is a better method of proceeding with the lay-off process. These statements are difficult to reconcile in this interim relief process.
54Taking all of the evidence into account including this retention of Collective Agreement rights for those employees in receipt of lay-off notices, count, I am not persuaded that the balance of harm favours the granting of interim relief.
55This is not a matter such as the series of cases before Chair Stewart, in Re The Crown in Right of Ontario (Ministry of Government Services & OPSEU & AMAPCEO (supra) where there was no possible way to undo or reverse the contested employer action. In those cases she found that in the event the requested interim relief was not granted, certain employees would be fingerprinted and be subjected to other security checks with possible credit rating implications. Those actions could not be undone once undertaken. Those facts are considerably different than the matters at hand.
56In arriving at my decision to deny this application I am also mindful that the interim relief sought for each of the three grievances is virtually identical to the relief sought on the face of the grievances. In other words, what is being requested by way of interim relief is the same as will be requested from the Board seized with the ultimate disposition of the matters. Boards of Arbitration tend to be reluctant to order interim relief that has the appearance of being dispositive of the very matter at issue between the parties.
57The litigation of the merits of these grievances has begun. The parties expressed a wish to proceed in as expeditious a fashion as possible. Hopefully that will occur and a final resolution will not be as far into the future as the Union feared.
58For all of those reasons, the application for interim relief is denied.
Dated in Toronto this 1st day of March 2013.