Ontario Public Service Employees Union, Bill Walls v. The Crown in Right of Ontario (Ministry of the Solicitor General and Correctional Services) and I. Hadden, A. Dvorak, R. Lundy

[1997] OLRB REP. JULY/AUGUST 562

2308-96-OH Ontario Public Service Employees Union, Bill Walls, Applicant v. The Crown in Right of Ontario (Ministry of the Solicitor General and Correctional Services) and I. Hadden, A. Dvorak, R. Lundy, Responding Parties

BEFORE: Brain Herlich, Vice-Chair, and Board Members J. A. Rundle and R. R. Montague.

DECISION OF THE BOARD; August 29, 1997

1. This is an application filed pursuant to section 96 of the Labour Relations Act, 1995 in which it is alleged that the responding parties have violated section 50(1) of the Occupational Health and Safety Act and section 8(1) of the Smoking in the Workplace Act (hereinafter referred to as "OHSA" or "SWA" respectively or collectively as the "Acts").

2. The responding parties have raised a preliminary issue which all of the parties have agreed this Board should dispose of without the need for an oral hearing and on the basis of the written submissions which have been filed.

3. The particulars in support of the application (like those filed in support of the response) are detailed and comprehensive, covering a sequence of events spanning a significant period of time. For the purposes of this decision, however, it is not necessary to review these in great detail.

4. It is sufficient for our present purposes to describe the complaint in an extremely summary fashion. Essentially, it is alleged that Bill Walls (the "applicant") has suffered an employment related reprisal as result of having acted in compliance/accordance with or having sought the enforcement of the Acts.

5. Again, without entering into the facts in any detail, the applicant relies on an asserted history of past participation in health and safety matters and then outlines his own personal efforts to seek "accommodation from the Employer to avoid second-hand cigarette smoke." Essentially, it is the responding party employer's response to those efforts which the applicant seeks to characterize as a reprisal prohibited under the terms of the Acts. The applicant asserts that he has been suspended without pay and on reduced pay for acting in compliance with the Acts. The pleadings further detail the applicant's efforts to seek accommodation to avoid second-hand cigarette smoke. It is the employer's response to those efforts, its alleged refusal to accommodate the applicant, which is said to constitute the unlawful reprisal.

6. For its part, the employer denies that its alleged failure to accommodate the applicant constitutes a prohibited reprisal. It asserts that it made considerable efforts to accommodate the applicant and that it has not been influenced in that regard by the applicant's participation in health and safety issues.

7. Thus, the pleadings disclose that, with respect to the merits of the application, there are a considerable number of legal and factual disputes joined between the parties.

8. The preliminary issue raised by the employer can be described as follows. It is asserted that this Board is without jurisdiction to consider this application because the applicant has elected, under section 50(2) of OHSA, to proceed by way of arbitration, rather than before this Board. Alternatively, even if no such election has been made, the Board is asked to defer to the arbitration process.

9. In support of this position certain factual assertions, which were not disputed by the applicant, are relied upon. In particular the employer asserts the following:

In a grievance filed on November 8, 1995, Walls has also complained that the Employer failed to accommodate his medical condition by failing to find him suitable employment where he would not be exposed to second-hand tobacco smoke, contrary to Article "A" of the Collective Agreement. The remedy sought in that grievance is to be "properly accommodated in a timely fashion and to be reimbursed for all lost wages and benefits, etc."

10. The employer also advises that (as of March 15, 1997) following a series adjournments at the behest of the union, the grievance was scheduled for arbitration before the Grievance Settlement Board at a hearing set for May 29, 30 and June 5, 1997.

11. The relevant portions of the OHSA are as follows:

12. (1) 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, has sought the enforcement of this Act or the regulations or has given evidence in a proceeding in respect of the enforcement of this Act or the regulations or in an inquest under the Coroners Act.

(2) Where a worker complains that an employer or person acting on behalf of an employer has contravened subsection (1), 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.

(3) The Ontario Labour Relations Board may inquire into any complaint filed under subsection (2), and section 91 of the Labour Relations Act, except subsection (5), applies with all necessary modifications as if such section, except subsection (5), is enacted in and forms part of this Act.

(4) On an inquiry by the Ontario Labour Relations Board into a complaint filed under subsection (2), sections 104, 105, 108, 110 and 111 of the Labour Relations Act apply with all necessary modifications.

(5) On an inquiry by the Ontario Labour Relations Board into a complaint filed under subsection (2), the burden of proof that an employer or person acting on behalf of an employer did not act contrary to subsection (1) lies upon the employer or the person acting on behalf of the employer.

(6) The Ontario Labour Relations Board shall exercise jurisdiction under this section on a complaint by a Crown employee that the Crown has contravened subsection (1).

(7) Where on an inquiry by the Ontario Labour Relations Board into a complaint filed under subsection (2), the Board determines that a worker has been discharged or otherwise disciplined by an employer for cause and the contract of employment or the collective agreement, as the case may be, does not contain a specific penalty for the infraction, the Board may substitute such other penalty for the discharge or discipline as to the Board seems just and reasonable in all the circumstances.

(8) Despite subsection (2), a person who is subject to a rule or code of discipline under the Police Services Act shall have his or her complaint in relation to an alleged contravention of subsection (1) dealt with under that Act.

12. Those provisions are mirrored in section 8 of the SWA which provides as follows:

8.-(1) No employer or person acting on behalf of an employer,

(a) shall dismiss or threaten to dismiss an employee;

(b) shall discipline or suspend an employee or threaten to do so;

(c) shall impose a penalty upon an employee; or

(d) shall intimidate or coerce an employee,

because the employee has acted in accordance with or has sought the enforcement of this Act.

(2) Subsections 50(2) to (8) of the Occupational Health and Safety Act apply with necessary modifications when an employee complains that subsection (1) has been contravened.

13. The Board's practice and its interpretation of section 50(2) are established and well known in the labour relations community. The parties referred us to a number of cases in this regard including Reed Limited, Furniture Division, [1978] OLRB Rep. Jan. 1; The Municipality of Metropolitan Toronto, [1986] OLRB Rep. Feb. 283; Scarborough General Hospital, [1988] OLRB Rep. Sept. 981; Zalev Brothers Limited, [1989] OLRB Rep. July 810; and Guelph Transportation Commission, [1993] OLRB Rep. Sept. 842.

14. For our current purposes perhaps the best summary of the Board's jurisprudence is to be found in the following passage from the Metro Toronto case just cited. The Board observed at paragraph 10:

15. It 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(l), 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 OH5A. 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).

16. Subject to a novel argument advanced by the applicant in response to the preliminary motion, we are satisfied that the Board's comments are equally applicable to the facts of the instant case. Neither are we persuaded that what the applicant describes as "important differences in the issues between the complaint to the Board and the grievance to be heard at arbitration" are significant enough to warrant departing from the settled application of the election requirement.

17. It is true that the ostensible subject matter of the instant complaint is an alleged violation of the Acts, while the ostensible subject matter of the grievance is an alleged violation of those provisions of the collective agreement pertaining to discrimination and an alleged failure of the employer to accommodate the grievor pursuant to its obligations under those provisions. In this regard, the current facts do not present the more usual dichotomy between an OHSA complaint on the one hand and a discipline or just cause grievance on the other. Yet the thrust of the Board's analysis remains applicable. It is the employer's alleged failure to accommodate the applicant which defines the broad parameters of the inquiry either at arbitration or before this Board. The employer's conduct may or not be in violation of the collective agreement - that is presumptively an issue for arbitration. Potentially quite independent of that determination, however, the employer's conduct may or may not constitute a violation of the Acts - but the rights conferred under the Acts are enforceable either at arbitration or before the Board. If there are legal, strategic or other reasons for an applicant to favour one route or the other in an effort to vindicate those statutory rights, the legislation provides the applicant with the option to choose the preferred forum. Twin proceedings are not available.

18. We have perhaps dwelled on this issue longer than necessary. The applicant did not seriously dispute the Board's general approach to the election obligation. Indeed, it did not dispute (assuming that an election was required in the circumstances of this case), that the applicant had effectively elected to have the matter dealt with by arbitration before the Grievance Settlement Board.

19. However, in a novel and somewhat intriguing argument, the applicant asserts that no requirement to elect arises in the instant case. The argument is grounded in the fact that the applicant is a Crown employee alleging that the Crown has violated the Acts and focuses primarily on the wording of section 50(6) of OHSA which provides:

20. . . .

(6) The Ontario Labour Relations Board shall exercise jurisdiction under this section on a complaint by a Crown employee that the Crown has contravened subsection (1).

19. Thus, the applicant asserts that, contrary to the general model as it applies to non-Crown employees, only this Board and not a Board of Arbitration (in this case the Grievance Settlement Board) has the jurisdiction to enforce the statutory rights which the applicant seeks to vindicate under the Acts.

20. If the applicant's interpretation of the statute is correct, it would appear to provide a complete answer to the responding party employer's assertion that the application ought to be dismissed, the applicant having elected to have the matter dealt with by final and binding settlement by arbitration. Indeed, at first blush the applicant's interpretation appears attractive. Both Acts (see OHSA section 2 and SWA section 12) contain separate and discrete sections which make the Acts binding upon the Crown. Thus, it would appear that even in the absence of section 50(6) of OHSA, (relevant) alleged violations of the Acts could be the subject matter of complaints before this Board. In other words, section 50(6) is not necessary to confer jurisdiction on this Board. Thus, as the applicant asserts, the purpose and effect of section 50(6) is to confer exclusive jurisdiction on this Board and to thus oust the parallel jurisdiction the Grievance Settlement Board would otherwise have to determine whether or not there has been a violation of the Acts.

21. The responding parties dispute this interpretation. They assert that much clearer language would be required to eliminate the right a Crown employee would otherwise have to elect to vindicate his statutory rights via arbitration. It is also asserted that, when one considers the statutory framework of collective bargaining for Crown employees at the time the subsection was first enacted, one can readily deduce that the purpose of the subsection was merely to clarify that it would be this Board and not the Ontario Public Service Labour Relations Tribunal to which a complaint alleging a violation of the Acts could be brought.

22. On balance we prefer the interpretation advanced by the responding parties. While the historical context provided for its preferred interpretation is perhaps apt, we have not lost sight of the fact that, as we have already indicated above, jurisdiction appears to have been conferred on this Board even apart from the provisions of section 50(6). We are more persuaded, however, by the general argument that clearer language is required to arrive at the conclusion advocated by the applicant.

23. In this regard, section 50(8) provides an illustrative example of precisely the kind of explicit language one might expect. For ease of reference we set it out again:

Notwithstanding subsection (2), a person who is subject to a rule or code of discipline under the Police Services Act shall have his or her complaint in relation to an alleged contravention of subsection (1) dealt with under that Act.

[emphasis added]

24. There can be little doubt that this provision removes the jurisdiction of this Board to deal with alleged violations of the Acts pertaining to the class of persons identified therein. It is not so clear that subsection (6) similarly removes the jurisdiction of a board of arbitration to deal with an alleged contravention of subsection (I). Unlike subsection (8), subsection (6) does not explicitly preclude the application of subsection (2) and the availability of the election contemplated therein. Thus, it appears to us that an election is still available even where a Crown employee alleges that the Crown has contravened subsection (1). We also note that the conclusion advocated by the applicant would appear, on its face, to he inconsistent with paragraph 48(12)(j) of the Labour Relations Act, 1995 which provides:

25. . . .

(12) An arbitrator or the chair of an arbitration board, as the case may be, has power,

(j) to interpret and apply human rights and other employment-related statutes, despite any conflict between those statutes and the terms of the collective agreement.

25. As the Board has indicated in previous cases (including the extract from the Metro Toronto case, set out above), there is no presumptively preferred forum for the adjudication of alleged violations of the Acts. Where the worker is otherwise governed by a collective bargaining regime and a collective agreement, the option will be available to the worker (subject, of course, to the role of the bargaining agent with respect to advancing grievances to arbitration) to either go to arbitration or to come before this Board. Subject to the exception noted in subsection 50(8) of OHSA, this option will be available to all workers, including Crown employees, who have access to the grievance/arbitration process.

26. We are thus satisfied that the election contemplated in subsection (2) is available to the applicant in this case even to the extent that he is a Crown employee alleging that the Crown has violated the Acts. The applicant did not dispute that if the election were available to him, that election has been made by virtue of the proceedings already in progress at the Grievance Settlement Board. The applicant, having therefore made his election to have the matter dealt with by the Grievance Settlement Board, cannot advance the instant complaint before this Board.

27. In view of our conclusion in relation to this branch of the preliminary motion, it is not necessary for us to consider or deal with the responding parties' submission that the Board ought to defer to the arbitration process.

28. This application is dismissed.