Ontario Nurses' Association Staff Union and Margaret O'Connor v. Ontario Nurses' Association
Citation: [1982] OLRB Rep. October 1546 File No.: 0445-82-U Date: October 5, 1982
Before: Ian Springate, Vice-Chairman, and Board Members L. Hemsworth and M. J. Fenwick.
Appearances: Elizabeth J. Shilton Lennon, Brain Herlich and Margaret O'Connor for Margaret O'Connor; Mary Cornish and Maureen O'Halloran for the Ontario Nurses' Association Staff Union; James B. Noonan, Richard J. Nixon and Jane Ford for the respondent.
DECISION OF THE BOARD
1This is a complaint under section 89 of the Labour Relations Act in which the complainants contend that Miss Margaret O'Connor has been dealt with by the respondent contrary to the provisions of sections 64, 70 and 80 of the Act.
2On or about May 27, 1982, Miss O'Connor was terminated from her position as Senior Executive Officer of the Ontario Nurses' Association. The complainants submit that Miss O'Connor's termination was prompted by the fact that she had testified at an arbitration hearing in connection with a grievance filed on behalf of an employee represented by the Ontario Nurses' Association Staff Union. The grievance, which was filed some time in April of 1982, alleged a violation of a collective agreement entered into between the Ontario Nurses' Association and the Ontario Nurses' Association Staff Union. By its terms, the collective agreement was to expire on December 31, 1981 but the terms and conditions set forth in the agreement were extended to some time in June of 1982 by force of section 89 of the Act. The grievance was not heard by a board of arbitration as provided for under the collective agreement but by a sole arbitrator appointed by the Minister of Labour at the joint request of the parties. It was the understanding of the parties that the arbitration would be conducted in accordance with the provisions of section 45 of the Act which relates to expedited arbitrations.
3The complainants contend that Miss O'Connor's termination violated several sections of the Act including section 80(1) which provides as follows:
"No employer, employers' organization or person acting on behalf of an employer or employers' organization shall,
(a) refuse to employ or continue to employ a person;
(b) threaten dismissal or otherwise threaten a person;
(c) discriminate against a person in regard to employment or a term or condition of employment; or
(d) intimidate or coerce or impose a pecuniary or other penalty on a person,
because of a belief that he may testify in a proceeding under this Act or because he has made or is about to make a disclosure that may be required of him in a proceeding under this Act or because he has made an application or filed a complaint under this Act or because he has participated or is about to participate in a proceeding under this Act."
The respondent contends that the phrase "proceeding under this Act" as used in section 80 should not be interpreted to include a hearing before a sole arbitrator or board of arbitration, and that, accordingly the section cannot apply to Miss O'Connor.
4Arbitration proceedings are dealt with at some length in the Labour Relations Act. Section 44(1) provides that every collective agreement must provide for the final and binding settlement by arbitration, without stoppage of work, of all differences between the parties arising from the interpretation, application or alleged violation of the agreement. A collective agreement lacking such a provision is deemed to contain the terms of an arbitration clause set out in section 44(2). An arbitration clause that proves to be inadequate may be modified by this Board pursuant to section 44(3). If there is a failure to appoint an arbitration board or arbitrator, section 44(4) allows the Minister to make the necessary appointments. An arbitrator or arbitration board's authority to summon and enforce the attendance of witnesses and to compel them to give evidence on oath is a power conferred under section 44(8) of the Act. Section 44(11) sets out how arbitration awards are to be enforced. Section 45 of the Act provides a procedure for expedited arbitrations which can be requested by either party, and which operates notwithstanding the arbitration provision contained in the relevant collective agreement.
5The effect of the compulsory nature of the arbitration provisions contained in the Act was considered by the Ontario Court of Appeal in [Re The International Nickel Company of Canada Limited and Rivando 1956 CanLII 122 (ON CA)](https://www.canlii.org/en/on/onca/doc