[1993] OLRB REP. SEPTEMBER 842
1034-93-OH Edward McGimpsey, Applicant v. Guelph Transportation Commission, Responding Party
BEFORE: Louisa M. Davie, Vice-Chair, and Board Members J. A. Ronson and C. McDonald.
APPEARANCES: John M. Rattray and Edward McGimpsey for the applicant; Michael G. Horan and James Robinson for the responding party.
DECISION OF THE BOARD; September 14, 1993
This matter came on for hearing before this panel of the Board on Tuesday, September 14, 1993. At that time the Board rendered the following unanimous oral ruling:
This is a complaint filed pursuant to the Occupational Health and Safety Act (“OHSA”). The complainant, Mr. McGimpsey, asserts that he was discharged contrary to the provisions of section 50(1) of the OHSA. The responding party Guelph Transportation Commission (hereinafter referred to as "the employer") has made a preliminary motion that the Board dismiss this complaint because Mr. McGimpsey has elected to have the matter of his discharge dealt with through arbitration under the provisions of a collective agreement. The employer alleges that as a result of that election, and pursuant to section 50(2), Mr. McGimpsey is precluded from proceeding before this Board.
The facts necessary for us to deal with this preliminary motion are not in dispute. There is a dispute between the parties with respect to the nature or effect of a settlement purportedly entered into between the employer, Mr. McGimpsey and his trade union. In our view, that dispute is not relevant to our determination with respect to this preliminary motion.
The facts agreed upon may be summarized as follows:
On January 8, 1993 Mr. McGimpsey's employment was terminated. On that day a grievance with respect to Mr. McGimpsey's discharge was filed. On January 13, 1993 that grievance went to the last step of the grievance procedure. It remained unresolved.
On January 15, 1993 the trade union, Mr. McGimpsey and the employer signed a memorandum of settlement resolving the grievance.
On February 22, 1993 pursuant to section 46 of the Labour Relations Act the trade union applied to have the grievance arbitrated. The arbitration was scheduled for March 18, 1993.
Prior to the scheduled arbitration hearing the employer raised an objection that the matter had been settled. Counsel for the employer asked that the arbitrator deal with that issue as a preliminary matter by teleconference.
On or about March 17 a teleconference was held amongst the union representative, employer's counsel, and the arbitrator. At that time the union asked that the arbitration be adjourned. The arbitrator granted that request and the arbitration has been adjourned sine die.
Thereafter employer counsel wrote to the arbitrator confirming the adjournment sine die and indicating that if the matter proceeded, the issues relating to the settlement would be dealt with first.
In or about April 1993 Mr. McGimpsey filed a complaint with the Workers Compensation Board asserting his dismissal was contrary to section 54 of the Workers Compensation Act.
This complaint under the OHSA was filed with the Board on June 22, 1993.
On July 8, September 2 and September 3 a hearing into Mr. McGimpsey's complaint under the Workers Compensation Act was conducted by the reinstatement officer under the provisions of the Workers Compensation Act. No decision in that matter has been issued.
In his able submissions to the Board, counsel for Mr. McGimpsey did not disagree that under the statutory provisions a worker (in this case Mr. McGimpsey) must make an election.
Counsel argued that in the circumstances before us, Mr. McGimpsey had not made such an election. He submitted that indeed Mr. McGimpsey could not have made that election because neither the union nor Mr. McGimpsey was aware of the OHSA reprisal aspect of this discharge until after the grievance had been filed and the arbitration was adjourned.
Counsel referred to Brunswick Mining and Smelting Corporation Limited v. Adelard Savoie (1991) 6 C.O.H.S.C. 10, a decision of the New Brunswick Court of Appeal, in support of this assertion.
Counsel for Mr. McGimpsey distinguished the Board's decisions in Inco Metals, [1982] OLRB Rep. May 681, The Municipality of Metropolitan Toronto, [1986] OLRB Rep. Feb. 283, Zalev Brothers, [1989] OLRB Rep. July 810 and Scarborough Hospital, [1988] OLRB Rep. Sept. 981 on the basis of what he termed "the temporal" facts of this case. He submitted that at all relevant times Mr. McGimpsey, being unaware of the OHSA issue, and being unaware that such an issue was a "live" issue, could not have made the election referred to in section 50(2) of the OHSA. As such, the 'matter" which is being raised in this application, namely the OHSA issues, is not the "matter" which has been raised in any other proceeding or before another adjudicator or in any other forum. This is therefore not a case of trying to ride two horses.
We do not agree.
We have determined to grant the employer's preliminary motion and dismiss this complaint. In our view, Mr. McGimpsey has elected to have the propriety of his discharge adjudicated through the arbitration process under the terms of his collective agreement. The "matter" which is already before the arbitrator (and with which in our view the arbitrator is now seized) and the “matter" which Mr. McGimpsey seeks to raise before us is his discharge. Having elected to proceed in one forum, Mr. McGimpsey cannot change horses midstream and bring the matter of his discharge before this Board. The Act clearly provides for the "either/or" proposition which counsel for the employer urges upon us.
We find that the New Brunswick Court of Appeal case is not applicable to the facts and circumstances before us. That case deals with the efficacy or enforceability of a release and not with the issue of the statutorily-required "election". In our view, the decisions of the Board in Inco Metals, supra, The Municipality of Metropolitan Toronto, supra, Zalev Brothers, supra and Scarborough Hospital, supra are not distinguishable. We accept and adopt the reasons and policy concerns underlying these decisions and find them applicable to the facts before us.
For all of these reasons, we grant the employer's motion and dismiss this case.