Ontario Labour Relations Board
[1986] OLRB Rep. February 283
2084-85-OH Peter C. Buttenaar, Complainant, v. The Municipality of Metropolitan Toronto, J. Ritchie; L. Lipp; J. Carnduff; K. F. Martelock; J. Horvath; J. Lees; P. Ferguson; F. J. Horgan. Respondents, v. Canadian Union of Public Employees Local 79, Intervener
BEFORE: S. A. Tacon, Vice-Chairman, and Board Members R. J. Gallivan and P. V Grasso.
APPEARANCES: R. W. Kuszelewski and P. C. Buttenaar for the complainant; Harry Poch for the respondents; Harold F. Caley for the intervener.
DECISION OF THE BOARD; February 20, 1986
1This is a complaint filed pursuant to the Occupational Health and Safely Act (hereinafter referred to as the OHSA) alleging violation of section 24(1) of that Act. At the hearing, counsel for the Canadian Union of Public Employees, Local 79, sought intervener status. The respondent withdrew its initial objection to that request, after clarification from the union counsel. The complainant raised no objection to the status sought by the union. Accordingly, the Board hereby adds the intervener to the style of cause of these proceedings in the context of counsel's statement with respect to the reasons for and extent of participation.
2The respondent, by way of preliminary motion, sought dismissal of the complaint as against all respondents, or, against the individuals named as respondents, or, in the alternative, adjournment of these proceedings pending the outcome of arbitration. The Board heard the submissions of the parties and reserved its ruling.
3Before setting out the submissions of the parties, it is useful to briefly sketch the following background facts, which were not in dispute.
4The grievor received notice of "termination" in February 1985, effective March 7, 1985. (The Board's use of the word "termination" does not imply any conclusion as to whether the grievor was terminated contrary to the OHSA, as the grievor claims, or laid off for lack of work, as is the respondent's position). A grievance was filed February 28, 1985, stating "I have been terminated without just cause, (as of March 7, 1985)" and seeks redress "to be reinstated without loss of benefits, wages or seniority". A step 2 response denying the grievance was issued over the signature of F. J. Horgan, Commissioner of Works, dated April 4, 1985. That reply, filed with the Board, details the respondent's view of the complainant's work history from May 26, 1983 to date of "termination", in particular, the complainant's illness and "safety concerns" in November 1984. The grievance proceeded through the remaining steps, including the Step 3 response dated July 23, 1985, and the union notice of intent to proceed to arbitration, dated July 26, 1985. The parties discussed the format of the arbitration, whether sole arbitrator or three-person board. The latter format was eventually agreed upon, the nominees and chair appointed. The hearing is scheduled for June 11, 1986. The complainant filed the instant complaint with the Board on November 18, 1985.
5The respondent submits that section 24(2) of the OHSA requires the worker to elect between proceeding to arbitration (if he/she is covered by a collective agreement) or filing a complaint with the Board. Further, it was argued the complainant, by proceeding through the grievance process to the point where an arbitration hearing was scheduled, has already elected the arbitral route and, thus, cannot now proceed before the Board in respect of the same matter. Counsel referred to the following cases in support: Reed Limited, Furniture Division, [1978] OLRB Rep. Jan. 1, 78 CLLC 16,130; Inco Metals Company, [1982] OLRB Rep. May 681 (the Wawia case). With respect to the individual named respondents, counsel contended all were acting in their respective capacities as employees or officials of the respondent and, therefore, the Municipality of Metropolitan Toronto was the only appropriate respondent. Moreover, counsel argued the OHSA required the worker to proceed against either the employer or persons acting on behalf of the employer but not both. In the alternative, counsel sought an adjournment of the Board proceedings pending the arbitration to avoid duplication and possibly inconsistent findings of fact, with at least a stipulation that matters dealt with at arbitration not be dealt with by the Board. Finally, counsel contended the relief sought from the Board was available at arbitration, with the exception of items (a), (b) and (e) in the complaint. With respect to the these latter items, it was argued the Board had no authority to declare the OHSA was violated (presumably apart from a finding that section 24(1) of the Act was breached by the employer) nor to direct "the respondents to monitor the air at the R. C. Harris Water Treatment Plant, for chlorine, in consultation with the complainant".
6Counsel for the intervener asserted section 24(2) of the OHSA required an election in respect of the alleged violation of section 24(1) of that Act between arbitration and the Board as the route for redress, particularly in view of the authority given the Board under section 24(7) to substitute disciplinary penalties. However, counsel submitted that such election had not yet occurred as the arbitration proceedings had not commenced. Further, it was contended, on grounds of fairness to the complainant who was represented by different counsel before the Board than would be the case at arbitration, the complainant should be permitted his election at this point, especially as no party could be said to be prejudiced at this stage.
7Counsel for the complainant conceded there must be an election under section 24(2) of the OHSA but only with respect to the ONSA issues. That is, the phrase "the matter" in section 24(2) referred not to the imposition of a penalty but whether the worker acted in compliance with the OHSA. If permitted an "election" at this point, counsel indicated the complainant wished to have the Board deal with the OHSA matter. Counsel also agreed there could be no complaint pursuant to section 24(2) prior to the imposition of the disciplinary penalty or as otherwise set out in 24(1). Thus, counsel argued the arbitration, where the union has carriage of the grievance, could proceed with an inquiry as to whether there was an improper layoff (i.e., layoff out of seniority) in addition to the Board proceedings dealing with the OHSA issues. Counsel conceded, though, that the complainant had not objected to the union's carriage of the grievance or the scheduling of the arbitration. It was asserted the Board was the "expert" forum for dealing with OHSA matters and had broader remedial authority than an arbitration panel or sole arbitrator. Counsel argued that each of the named respondents at least violated section 24(1)(d) and all "knew" of Metro's (alleged) violation of the substantive provisions of the OHSA (i.e., apart from 24(1)). Counsel disagreed with the disjunctive interpretation placed on the phrase "employer or persons acting on behalf of the employer) by the respondent. Finally, counsel stated that, as the matter was now before the Board and the arbitration was not scheduled until June 11, 1986, the case should proceed before the Board.
8In reply, counsel for the respondent argued the OHSA complaint was integral to the arbitration and, thus, the issues could not be divided as suggested. Moreover, the OHSA issues had clearly been raised throughout the grievance proceedings. Counsel also stressed that the arbitration route had been selected in July, 1985, yet the complainant delayed filing the instant complaint with the Board until November and, it was submitted, had given no reasonable explanation for the delay. Counsel disputed the assertion that the Board's remedial authority under the OHSA was broader than the arbitral remedial authority in the circumstances.
9Section 24(1) and (2) of the OHSA read:
24.-(l) No employer or person acting on behalf of an employer shall,
(a) dismiss or threaten to dismiss a worker;
(b) discipline or suspend or threaten to discipline or suspend a worker;
(c) impose any penalty upon a worker; or
(d) intimidate or coerce a worker,
because the worker has acted in compliance with this Act or the regulations or an order made thereunder or has sought the enforcement of this Act or the regulations.
(2) where a worker complains that an employer or person acting on behalf of an employer has contravened subsection (I), the worker may either have the matter dealt with by final and binding settlement by arbitration under a collective agreement, if any, or file a complaint with the Ontario Labour Relations Board in which case any regulations governing the practice and procedure of the Board apply, with all necessary modifications, to the complaint.
10It is agreed by the parties, at least with respect to the OHSA issues, that section 24(2) of the OHSA requires an election, i.e, that a worker must choose either to proceed before the Board or the arbitration route. The Board concurs that such an election of forum for redress is clear on the wording of section 24(2); see also Reed Limited, supra; Inco Metals, supra; Black & McDonald Ltd., [1983] OLRB Rep. Dec. 1971. The Board, however, does not accept the complainant's assertion that the OHSA issue is severable from the grievance so that the Board could deal with that issue while the arbitration panel hears the layoff issue. The "matter" referred to in section 24(2) is the alleged violation of 24(1), namely, that an employer acted to penalize a worker, as set out in sub (a) to sub (d), because the worker complied with or sought enforcement of the OHSA. That issue of improper (or unjust) discipline is the "matter" to be heard at arbitration or before the Board. While the respondent asserts that the undisputed fact that the complainant is no longer an active employee is as a result of layoff, there is no doubt that section 24(1) of the OHSA is integral to the grievance should the grievance be adjudicated in an arbitral forum. The grievance form itself refers to "termination without just cause" rather than improper layoff or some such language. Section 24(1) affords workers a right of protection from penalties for invoking the OHSA; that right is enforceable under the legislation either at arbitration or before the Board. The Board also does not accept the complainant's characterization of the Board as the "expert" forum in respect of alleged violations of section 24(1) of the OHSA. As noted in Reed Limited, supra, there can be no general assumptions as to which forum is more suitable. Both are on an equal footing and the statute gives the worker the choice. The Board need not determine precisely whether the remedies available before the Board are broader than at arbitration; rather, the Board regards the remedial authority of either as quite adequate to deal with a violation of section 24(1). Moreover, the Board notes that the Board is not the vehicle for enforcing the OHSA beyond the rights in section 24(2). In this regard, the Board comments that the "monitoring" relief requested in item (e) of the complaint would not be appropriate.
11The Board next deals with the fundamental issue raised in the preliminary motion, namely, at what point does the worker elect his or her forum for resolution of the alleged contravention of section 24(1) of the OHSA. In Reed Limited, supra, the Board rejected an assertion that initiation of the grievance process constituted an election. Rather, workers should be encouraged to utilize the grievance process, where such exists, before pursuing the statutory procedure. However, the Board in Reed continued, at paragraph 13:
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.
12The concept of "authorizing" the union to proceed to arbitration was raised in Inco Metals, supra, where, although the union indicated initially that the grievance would proceed to arbitration, the grievance was then withdrawn and a complaint filed with the Board. In the circumstances of that case, the Board found that the delay in filing the complaint was not excessive and, further, as there no longer was a "live" grievance ongoing in the grievance procedure, the Board should hear the complaint. Again, though, the Board cautioned:
"as the Board went on to note in Reed Limited, however, the employee cannot ride two horses: and once he authorizes the matter to be posted to arbitration, he cannot withdraw that authorization and insist that the matter be filed with the Board instead." (at paragraph 10).
13The Board concurs with the reasoning in Reed Limited, supra, whereby workers are encouraged to utilize the grievance process, where available, to attempt to resolve the matter before adjudication. Further, the Board agrees with what is essentially a balancing of interests in Inco Metals, supra, a recognition that the union has carriage of a grievance but that it is the worker, not the trade union, who is accorded statutory protection under section 24(1) of the OHSA. That is, where a trade union decides not to proceed to arbitration, a worker should not thereby be precluded from coming to the Board, at least, in a timely fashion.
14This Board in this instance need not determine with absolute precision the point at which an election is made pursuant to the statute. In the Board's view, however, that point is not the initial notification to proceed to arbitration, of itself, but conduct by the union in accordance with that notice, conduct such as, the selection of the arbitrator/arbitration panel. Such conduct represents the commitment of the union, as agent for the worker, to the arbitration process, and, therefore, the election of that route for redress. Although the Board recognizes that grievances may be abandoned or settled subsequent to the point noted (indeed, settlement may occur up to the issuance of an arbitration award), the Board regards the test outlined as appropriate. To permit an "election" at any point prior to the actual commencement of an arbitration hearing would not encourage the expeditious resolution of a health and safety complaint. Such expeditious resolution is to be encouraged as a matter of public policy. See also Tecumseh Products of Canada Limited, 11985] OLRB Rep. Jan. 123, for the impact of delay on the Board's exercise of discretion to hear an OHSA complaint. Furthermore, depending on the scheduling of the arbitration and Board hearings, there could well be costs involved in cancelling the arbitration date(s), costs which it should be noted the complainant would not bear.
15The Board would add two caveats to the foregoing in recognition of the reality that it is the union, not the individual (with relatively few exceptions in collective agreements), which has carriage of the grievance. Firstly, where a worker objects, in a timely fashion, to the union proceeding to arbitration, and instead comes to the Board for relief, the Board may not hold the worker strictly bound by the subsequent acts of the union with respect to the arbitration process. The circumstances of the case, including the manner and timing of the objection, the delay in filing the complaint with the Board, etc., would be relevant factors in determining whether the Board should hear the complaint. Secondly, should the union, after proceeding down the "arbitration" route, unilaterally settle the grievance, the Board may consider it appropriate in some circumstances to permit the worker to come before the Board:
see, for example Inco., supra.
16On the instant facts, however, the union has proceeded, without protest by the complainant, well beyond an initial notice to arbitrate. The union notified the employer of its intention to proceed to arbitration in July 1985. After some delays as a consequence of deciding upon the format for the arbitration, the grievance is now scheduled for hearing for June 11, 1986. The complainant has not objected to the union's carriage of the grievance; indeed, the complainant wants the arbitration to proceed on the "layoff" issue. Moreover, the instant complaint was not filed with the Board until November 18, 1985. In the circumstances, the Board considers that the complainant has made his election under the statute to proceed to arbitration and is now bound by that election. To continue the analogy in Reed Limited, supra, while a worker may be permitted to ride two horses during the grievance process, he or she will not be permitted to change horses midstream in the arbitration process.
17Given the Board's conclusion on the election issue, it is not necessary for the Board to deal with the other matters raised by the respondent in its preliminary motion.
18Accordingly, this complaint is hereby dismissed.