Frank DeFazio v. Toronto Transit Commission, 1999 CanLII 20118

[1999] OLRB REP. JULY/AUGUST 734

2054-98-OH Frank DeFazio, Applicant v. Toronto Transit Commission, Responding Party v. The Amalgamated Transit Union, Local 113, Intervenor

BEFORE: Janice Johnston, Vice-Chair

APPEARANCES: H. Kopyto and F. DeFazio for the applicant; Robert Little and Dan Haffey for the responding party; B. Chercover and Dieter Wehr for the intervenor.

DECISION OF THE BOARD; July 22, 1999

1. This is an application pursuant to section 50 of the Occupational Health and Safety Act (the "OHSA").

2. The responding party, The Toronto Transit Commission (the “TTC" or the "Commission"), has raised several preliminary objections to this application. Accordingly, a hearing was scheduled for June 17, 1999. At the hearing scheduled to deal with these matters, the TTC raised four preliminary objections. The Commission took the position that:

(a) the Board should dismiss this application as the applicant has already elected under section 50(2) of the OHSA to grieve his dismissal and the alleged reprisals;

(b) the Board should strike certain paragraphs from the complaint alleging that the YI'C breached sections of the OHSA other than section 50;

(c) the Board should strike certain paragraphs from the complaint because there are no material facts pleaded;

(d) the Board should strike the paragraph in the complaint which asserts that the YI7C has engaged in a reprisal against another individual on the basis that the complainant cannot file a complaint on behalf of someone else; and

(e) the Board should strike paragraphs four to seven from the application as the allegations contained in those paragraphs pertain to an application pursuant to section 48(1) of the Act.

3. With regard to paragraph (e) above, it should be noted that on May 5, 1999, the applicant, Mr. DeFazio, was part of a group of individuals who filed an application for a recommendation from an adjudicator pursuant to section 46 (5)(b) of the OHSA. (See Board File No. 0390-99-HS).

4. The TTC takes the position that this application should be dismissed as Mr. DeFazio has elected to pursue his rights under the collective agreement. The facts relevant to this objection are not in dispute. Mr. DeFazio has been employed by the TTC in its plant department for approximately five years. He holds the position of union steward on the night shift and as well he is the Workers' Certified Member for the Track and Structures Joint Health and Safety Committee.

5. The incidents giving rise to the complaint currently before the Board occurred in June and July, 1998. It is not necessary for the purposes of dealing with the preliminary matters to detail those incidents. On August 6, 1998, Mr. DeFazio's employment with the TTC was terminated. By letter dated August 18, 1998, a grievance was filed by the intervenor, the Amalgamated Transit Union, Local 113 (the "union") alleging that Mr. DeFazio's termination was an act of reprisal on behalf of the TTC for his investigation of health and safety issues and was contrary to section 50 of the OHSA. A Step 1 grievance interview was held on August 12, 1998. As nothing was resolved at Step 1, a Step 2 meeting was held on August 19, 1998. Mr. DeFazio attended at both the Step 1 and the Step 2 meetings. On August 26, 1998, as the result of a conference call Mr. DeFazio was returned to work as of that date. However, as Mr. DeFazio had not been paid for the three-week period he had been off work and there were still issues regarding his personnel record, the union continued with his grievance to Step 3 of the grievance procedure.

6. A Step 3 meeting was held on October 21, 1998. Mr. DeFazio was invited to attend this meeting but indicated to the union that he would only do so in the accompaniment of his legal adviser. As the practice of the union is not to allow a third party adviser or counsel to attend grievance procedure meetings Mr. DeFazio chose not to attend the Step 3 grievance meeting. At the meeting, the TTC and the union were able to reach a settlement of the grievance. The settlement included the formal reinstatement of Mr. DeFazio, reimbursement for all lost wages which consisted of the three weeks he had been off work prior to his return on August 26, 1998, and the parties agreed to have all documenta­tion relating to the above-noted discipline sealed in an envelope. Provided Mr. DeFazio does not become involved in an incident of a similar nature the documentation will be destroyed in two years. In addition, the parties agreed that Mr. DeFazio will be required to attend a meeting with TTC management and representatives of the union with respect to established processes and roles relating to his capacity as a shop steward and as a certified member of the Joint Health and Safety Committee. As a result of this settlement, the union withdrew the grievance it had filed on behalf of Mr. DeFazio.

7. The application pursuant to section 50 of the OHSA currently before the Board was filed on September 11, 1998. The 'FTC takes the position that as the grievance filed on behalf of Mr. DeFazio raised the same issues as are raised in the current application before the Board, the settlement of that grievance should cause the Board to decline to hear the current application. The Board should do so either on the basis that Mr. DeFazio has made his election under section 50(2), or pursuant to the Board's general discretion contained in section 96 of the Labour Relations Act (the "Act").

8. Counsel for the Commission argued that the Board's jurisprudence makes it clear that where there is an outstanding complaint and a grievance has been filed dealing with the same issues, if the grievance is settled, the Board will decline to hear the section 50 complaint. Counsel for the 'FTC acknowledged that the mere filing of a grievance does not constitute an election pursuant to section 50(2) of the OHSA. However, where the grievance proceeds to the stage it did in this case and is settled, that settlement should act as a bar to an application pursuant to section 50(2) of the OHSA. In counsel's view, the mere fact that Mr. DeFazio is not satisfied with the settlement should not be a sufficient basis upon which to allow him to proceed in his current application. In this case, no unfair labour practice complaint has been filed against the union, therefore Mr. DeFazio should be barred from trying to proceed with the adjudication of the same issues before the Board as were dealt with in the grievance procedure. Counsel suggested that it was important that the Board should support the integrity of the grievance settlement process and that valid policy reasons existed for the Board to defer to it in this case.

9. Counsel for the TTC pointed out that Mr. DeFazio was reinstated and has been paid full back pay for the period of time he was off work. Pursuant to the application before the Board he continues to seek additional relief. By way of additional relief under this application, Mr. DeFazio seeks to have: (a) the documents which have been sealed removed permanently from his file; (b) a commitment by the TTC not to take further reprisals for his activities as a certified member pursuant to section 48 of the OHSA; (c) an order that a worker certified member has the right to investigate reports of dangerous circumstances as stated in section 48 of the OHSA; and (d) that he be recompensed for the pain and suffering that his family and he suffered because of the TTC's violation of the OHSA.

10. In dealing with the first request for relief, namely that the documents be removed perma­nently from his file, counsel for the TTC suggested that Mr. DeFazio's concerns were speculative in this regard. Counsel pointed out that should Mr. DeFazio feel in the future that the documents which have been sealed have been used against him in a manner that would constitute a reprisal pursuant to section 50 of the OUSA, then Mr. DeFazio can simply file another complaint. There is no immediate need for the Board to deal with this issue now.

11. With regard to Mr. DeFazio's second request for relief, that the TTC should make a commitment not to take further reprisals against him, counsel pointed out that the Board would never make that kind of an order in an application pursuant to section 50 of the OHSA. Counsel suggested that the Board would look at whether or not a reprisal had occurred, and make a declaration one way or the other. The Board would not order the employer to refrain from acting in a certain fashion in the future. In all likelihood counsel stressed that it would be beyond the Board's remedial authority and jurisdiction to do so or to force the employer to make some sort of future commitment with regard to the OHSA. In the alternative, counsel argued that even it was within the Board's jurisdiction to make such a future oriented order it is not the type of order that the Board would make. Similarly, the third request outlined above dealt with the future exercise of Mr. DeFazio's rights under the OHSA. The Board would not in counsel's view make this future oriented type of order.

12. Mr. DeFazio has requested that the Board award him damages for pain and suffering. Once again, counsel pointed out that this is not relief that the Board would grant to Mr. DeFazio.

13. Counsel for the union agreed with the submissions which had been made by the TTC. However, counsel for the union stressed that there were important policy reasons why the Board should not hear this complaint. In this case the union filed a grievance on behalf of Mr. DeFazio and was successful in getting him reinstated and reimbursed for all lost wages. The documentation of this incident was removed from his file and sealed. While it is true that the documentation pertaining to the disciplinary action was merely sealed as opposed to permanently removed, nevertheless it no longer forms part of Mr. DeFazio's file. In counsel's view, the union was successful in obtaining a great deal for Mr. DeFazio. Although Mr. DeFazio claims to not be satisfied with the settlement, he has not filed an unfair representation complaint against the union which would have been logical if he felt that the union had not represented him fairly or appropriately.

14. In addition, counsel for the union pointed out that the parties are working together to resolve the larger workplace safety issues which gave rise to the incident which ultimately resulted in the discharge of Mr. DeFazio. In counsel's view the union and the TTC have dealt with the specific issues pertaining to Mr. DeFazio and are now continuing to deal with the "bigger picture" issues in the workplace. Counsel for the union suggested that the Board has to consider whether further litigation on the issue of the alleged reprisal against Mr. DeFazio is a useful exercise at this point and whether a decision to do so is an appropriate exercise of the Board's discretion. Counsel stressed that in the future should the employer take reprisals against Mr. DeFazio or any other employee for exercising rights under the OHSA, the union would file grievances and take whatever steps are necessary to protect its members as it has done in the past.

15. Mr. DeFazio takes the position that the settlement of his grievance was done without his participation or agreement. He argues that he made it clear from the beginning that it was his intention to pursue an application pursuant to section 50 of the OHSA. Accordingly, in his view, the union was not authorized to enter into a Memorandum of Settlement on his behalf. Mr. DeFazio's representative stressed that the union and the TTC settled Mr. DeFazio's grievance without his agreement or authoriza­tion and that Mr. DeFazio does not want the settlement. Mr. DeFazio's representative pointed out that pursuant to section 50(2) of the OHSA, Mr. DeFazio has the right to elect whether or not to proceed pursuant to the collective agreement or pursuant to a complaint before the Board. Section 50(2) states that the worker may either have the matter dealt with by final and finding settlement by arbitration under a collective agreement or file a complaint with the Board. It does not say that this decision is to be made by either the trade union or the employer. Mr. DeFazio's representative pointed out that in this case, the application pursuant to section 50 of the OHSA was filed after Steps 1 and 2 of the grievance procedure had taken place but prior to the settlement of the grievance. In this case, Mr. DeFazio did not want the grievance to proceed and wanted to proceed with an application pursuant to the OHSA.

16. The representative of Mr. DeFazio questioned what difference it should make to this application whether or not Mr. DeFazio filed an unfair representation complaint pursuant to section 74 of the Act. In his view such a complaint would only add to the multiplicity of proceedings and would not solve anything. It was completely inappropriate for the other parties to suggest that if Mr. DeFazio was not satisfied with the settlement reached by the union that he should have filed an unfair representa­tion complaint against the union. In fact Mr. DeFazio should be commended for not filing such a complaint in Mr. Kopyto's view.

17. The representative of Mr. DeFazio stressed that in this case Mr. DeFazio was not choosing to "ride two horses". He did not want the union to settle his grievance and he did want to proceed with his OHSA case. Therefore, this is not a case in which it is appropriate to deny Mr. DeFazio his right to proceed under section 50 of the OHSA.

Decision

18. The relevant section of the OUSA reads as follows:

19. (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.

19. It is common ground between the parties that the applicant was terminated on August 6, 1998, and that a grievance was filed on his behalf by the union on August 18, 1998. As a result of the union's efforts on his behalf Mr. DeFazio was offered and accepted his job back on August 26, 1998. At the Step 3 grievance meeting held on October 21, 1998, the TTC and the union agreed that Mr. DeFazio was to be paid for the three weeks he had been off work while he had been terminated.

20. Section 50(2) of the OHSA contemplates that when a worker feels that section 50(1) of OHSA has been violated the worker may either have the matter dealt with by final and binding settlement by arbitration under a collective agreement or file a complaint with the Board. In this case, a grievance was filed and Mr. DeFazio participated in the early stages of the grievance procedure. As a result of this process, Mr. DeFazio was reinstated to his employment. However, prior to the final settlement of the grievance but after his reinstatement, Mr. DeFazio indicated that he did not wish to participate any longer in the grievance procedure and wished to file the complaint which is currently before the Board. He filed the complaint on September 11, 1998. Even though a complaint had been filed the union continued to process his grievance and as a result of the Step 3 grievance meeting held on October 21, 1998, Mr. DeFazio received full back pay for the time he had been off work. He accepted this money.

21. As has already been noted, the settlement of Mr. DeFazio's grievance included his reinstate­ment, compensation and the sealing of all the documents which pertained to this matter. Mr. DeFazio is not satisfied with this settlement and wishes to pursue an application under the OHSA. While clearly, Mr. DeFazio has the option under section 50(2) of proceeding pursuant to the grievance procedure of the collective agreement or filing an application pursuant to the OHSA, he must do one or the other. He cannot do both. In this case, Mr. DeFazio participated in the grievance process up until the final stages. He now indicates that he is not satisfied with that settlement and wants to pursue an application pursuant to the OHSA. However, the difficulty this approach presents, is that Mr. DeFazio appears to want his cake and to eat it too. Clearly, Mr. DeFazio has not turned down the aspects of the settlement that worked to his advantage. He has returned to work and he has accepted the back pay which he received as a result of the settlement. However, he does not like the aspects of the settlement that did not provide him with the additional relief he was seeking nor does he like the fact that his record had been sealed for two years as opposed to simply removed from his file and destroyed.

22. Mr. DeFazio's representative argued that it was Mr. DeFazio's intention from the beginning to file an application under section 50 of the OHSA and that he did not accept the grievance settlement. This is simply not accurate. Notwithstanding the fact that he said he wanted to proceed under the OHSA, he nevertheless accepted his job back and compensation for the time he was off work. By accepting his reinstatement and backpay, Mr. DeFazio accepted the grievance settlement. If he intended to proceed under the OHSA he should not have elected to accept what the union had achieved on his behalf.

23. Section 50(2) of the OHSA requires a worker to elect to proceed under a collective agreement or to file a complaint under section 50 of the OHSA. Whether or not an election has occurred or when it has occurred is a question of fact. It is not as simple as merely filing or not filing an application under the OHSA. An election can be found to have occurred as a result of certain conduct or comment by the worker. A worker by word or by deed may be found to have made his/her election

24. The Board's jurisprudence makes it clear that merely participating in the grievance proce­dure does not mean that a worker has elected to proceed under the collective agreement and is thereby precluded from filing a complaint (see in this regard Reed Limited, [1978] OLRB Rep. Jan. 1). However, that is not what happened in this case. Mr. DeFazio did not merely participate in a grievance procedure that achieved nothing for him. He participated in a grievance procedure that resulted in a settlement which included his reinstatement. A reinstatement that he accepted. It is this acceptance of his job back that in my view constitutes an election to proceed under the grievance procedure. By accepting his job back Mr. DeFazio is by his conduct choosing to proceed under the collective agreement.

25. While clearly in this case the employer and the trade union did not proceed as far as the arbitration of the matters in dispute, the union had indicated to the Commission that if Mr. DeFazio's grievance did not settle at Step 3 of the grievance procedure then they would be proceeding to arbitration. It appears to me that in order for there to be a final settlement within the meaning of section 50(2) of the OHSA, it is not necessary for the matter to actually proceed to arbitration and be settled at the arbitration. It is the fact that arbitration is an option that provides the incentive for settlement. When a settlement occurs, be it on the date scheduled for the arbitration or at some earlier stage in the process, is irrelevant. This is not a case where after having achieved nothing by way of relief for the individual the union withdraws a grievance it feels it cannot win at arbitration.

26. This case raises important labour relations policy issues. While on the one hand section 50 of the OHSA gives a worker the option of choosing the forum in which to have his or her case litigated, clearly it contemplates that a choice must be made. The difficulty with this case is that Mr. DeFazio has chosen to accept the benefits of the settlement which the union obtained on his behalf but does not want to accept that as part of the settlement process some aspects of the relief he was looking for had to be abandoned. It is somewhat trite but nevertheless relevant to note that almost without exception, as part of any settlement, the parties engage in a process of give and take. Generally neither side emerges from the process having achieved everything that it initially sought. That is what a settlement is all about. When a matter is settled a compromise is reached and by its very nature it is a compromise which involves both sides giving in on or abandoning some of their respective issues.

27. The Board and arbitral jurisprudence contains countless references to the importance of settlements in fostering good labour relations between trade unions and employers. It is crucial to a healthy labour relations environment that the parties be able to sit down and work out their differences in a satisfactory manner without having to always resort to the litigation or arbitration process. In the case before me the 'FTC and the union reached a settlement or compromise that was acceptable to both of them. Although he is not happy with all of the settlement, Mr. DeFazio has nevertheless chosen to accept and benefit from the settlement.

28. The Board must take great care not to undermine what appears in this case to have been a fair and reasonable settlement process lest it undermine the settlement process generally between the parties. From a policy point of view the Board should not allow Mr. DeFazio to accept the benefits of the grievance settlement process and then initiate a complaint pursuant to the OHSA to achieve the remaining relief which he, or more correctly the union on his behalf, was unable to achieve in the grievance settlement process. To do so would create a serious disincentive to the settlement of this type of case in the grievance process. There would be absolutely no reason for the company to agree to reinstate an employee and to compensate him for lost wages if in the future as part of an application pursuant to the OHSA they could be required to re-visit the issue and potentially provide a complainant with all the additional relief which was originally sought.

29. This case bears a striking similarity to The East York Health Unit (1997) OLRD No. 152. In that case the applicant had also filed several grievances and then later sought to pursue a claim under the OUSA. In The East York Health Unit case grievances were filed, and then arbitrated and/or settled. The applicant sought to pursue her rights by filing a complaint under section 50 of the OHSA because she was dissatisfied with the settlement reached concerning some of her grievances or the results of the arbitration of others. In that case the Board stated the following:

30. It is common ground that the applicant has had grievances arbitrated and settled. The applicant now claims she was dissatisfied with the representation she received from her union in the arbitration and settlement of those grievances. However, no complaint has been made against the union. As noted above, the applicant is relying on the same sequence of events in this application as the union relied upon in the arbitration of the applicant's last five grievances. While the characterization of the grievances was different to the extent that no claim of a reprisal for making occupational health and safety complaint was made, those grievances also claimed discriminatory treatment and harassment by the Health Unit staff.

31. I am satisfied that the applicant has already made her election to pursue grievance arbitration, and that the arbitrator had the power to address essentially the same issues of harassment and discrimination which the applicant is claiming here. The May 30, 1996 settlement and Arbitrator Craven's award of July 12, 1996 addressed all of the matters Ms. Brody is now raising before the Board. She cannot therefore seek to rely on the same set of allegations to found a complaint of a reprisal at the Board. In recent years there has been a growing trend towards having matters heard and dealt with in one arena so as to avoid multiple proceedings and their attendant costs. From the number of complaints filed with various entities it would appear that the applicant is forum shopping. In these times of reduced resources for boards and tribunals it is not feasible to have parties carrying on litigation arising Out of the same set of circumstances and claiming essentially the same issues in a number of fora.

32. Therefore, having chosen to accept the benefits of the settlement that were achieved on his behalf by the union, regardless of whether or not Mr. DeFazio is now happy with that settlement, I am of the view that he has elected to proceed by way of final and binding settlement by arbitration and cannot now file a complaint pursuant to section 50 of the OUSA.

33. The TTC has requested that I also exercise my discretion pursuant to section 96 of the Act and decline to inquire into this matter. Accordingly, assuming that Mr. DeFazio has not elected to proceed under the collective agreement thereby giving him the option of electing to pursue this matter by way of proceedings pursuant to the OHSA, is this the type of complaint which the Board would or should inquire into?

34. The relief sought by Mr. DeFazio in his original application has to a large extent been granted. He has been reinstated and he has been paid full back wages. The documents pertaining to the incident were sealed and will remain sealed for a period of two years assuming that there are no further incidents. Should the Commission inappropriately wish to rely upon the documents that have been sealed, then Mr. DeFazio has the option of either filing a grievance or depending on the circumstances, filing a complaint pursuant to the OHSA. Therefore, there is no urgency or necessity to deal with the issue of the sealed documents at this point in time.

35. Mr. DeFazio is also seeking a commitment by the TTC not to take further reprisals for his activities pursuant to the OHSA. Presumably if he were to proceed with his complaint he would be asking the Board to order this. It appears to me that this is not the type of relief that the Board would grant at this stage. Once again Mr. DeFazio's rights can be safeguarded by the filing of a grievance or a complaint pursuant to section 50 in the future should he feel that his rights have been violated.

36. As was noted earlier, Mr. DeFazio is part of a group of individuals who have filed an application under other provisions of the OHSA claiming that dangerous circumstances exist in the workplace. It appears that Mr. DeFazio wants to deal with some of the issues raised in those proceedings in the context of this complaint under section 50 of the OUSA. However, in the context of a complaint pursuant to section 50 of the OHSA, the Board is not going to get into the underlining health and safety issues to the extent that it appears that Mr. DeFazio would like to. The concerns expressed by Mr. DeFazio concerning the allegedly on-going dangerous conditions in the work place will be dealt with in the context of the other proceedings which Mr. DeFazio, amongst others, has initiated under the OUSA.

37. Mr. DeFazio has indicated that he wants damages for the pain and suffering that he and his family have suffered as a result of the actions of the TTC. As has been noted in previous Board decisions, the Board does not grant damages for mental anguish or other non-pecuniary losses.

38. Damages for pain and suffering are not something that I would have ordered in this case.

39. Accordingly, even if I were to conclude that it is appropriate to allow Mr. DeFazio's OHSA application to proceed on the election issue, there exist no reasons or requests for relief which are sufficiently compelling so as to cause the Board to exercise its discretion in favour of inquiring into Mr. DeFazio's complaint pursuant to section 50 of the OHSA. The additional relief which he seeks is either not the type of relief that the Board would order or involves matters which can be dealt with if and when they should ever come to pass.

40. For all the reasons outlined above and all of the policy reasons set out earlier in this decision, I hereby exercise my discretion pursuant to section 96 of the Act and decline to inquire further into this case as to do so would serve no labour relations purpose. Having reached that conclusion and pursuant to my decision on the issue of the election, there is no need to address the remaining preliminary motions raised by the commission.

41. This application is hereby dismissed and the hearing set for July 28, 1999 is hereby cancelled.