Ontario Labour Relations Board
3450-99-OH Cheryl Sweiger, Applicant v. Toronto Transit Commission, Joe Haffey, J. Thompson, Shelagh Quigley, Garry Webster and Richard Ducharme, Responding Parties.
0046-00-U Cheryl Sweiger, Applicant v. Amalgamated Transit Union Local 113, Responding Party v. Toronto Transit Commission, Intervenor.
BEFORE: Patrick Kelly, Vice-Chair.
APPEARANCES: Cheryl Sweiger, W. McNaught, A. Ebbs, G. Webster, P. McFawn and R. Maatman for the applicant; Gary Hopkinson and Phil Quibell for the union; Michael Kennedy, Joe Haffey, Dan Haffey and Jim Thompson for the employer.
DECISION OF THE BOARD; October 11, 2000
1Board File 3450-99-OH is a reprisal complaint brought pursuant to section 50(1) of the Occupational Health and Safety Act as amended (the “Act”), and Board File 0046-00-U is a duty of fair representation application brought pursuant to section 74 of the Labour Relations Act, 1995, S.O. 1995, c.1.
2The hearing in these matters commenced on August 24, 2000. At the outset, the Board directed the tendering of evidence concerning the issue as to whether or not a settlement had been entered into by the applicant, the responding party trade union (“the union”) and representatives of the Toronto Transit Commission (“the TTC”) concerning the resolution of the applicant’s grievances. The Board was of the view that the determination of that issue might be dispositive of some or all of the remaining issues in dispute.
3Before all the evidence was adduced, on August 25, 2000 the parties entered into minutes of settlement whereby, among other things, they agreed that the aforementioned grievances of the applicant had in fact been settled on March 7, 2000. Pursuant to the minutes of settlement, the applicant agreed to seek leave of the Board to withdraw her section 74 complaint against the union. In addition, the TTC agreed that, notwithstanding the resolution of the applicant’s grievances, she was not precluded from bringing any complaint under the collective agreement’s non-discrimination clause. Finally, the applicant and the TTC agreed that they would next argue before the Board the impact of the settlement of the applicant’s grievances on the disposition of the reprisal complaint. The position of the applicant was that, notwithstanding the resolution of her grievances, the hearing of her reprisal complaint should proceed. The TTC, on the other hand, argued that the resolution of the applicant’s grievances also resolved her reprisal complaint, which therefore should be dismissed.
4At this point, it is useful to set out the uncontested facts that gave rise, in part, to the filing of the reprisal complaint.
5The applicant is an employee of the TTC, and an appellant in another Board application involving a work refusal pursuant to the Act. That matter was ongoing when, on February 18, 2000, the applicant was interviewed by a TTC supervisor, James Haffey, regarding certain allegations made by a co-worker against the applicant. Mr. Haffey reduced to writing his version of that meeting, noting that the applicant had denied the allegations, and that an investigation was ongoing.
6On February 22, 2000 another supervisor, Jim Thompson, spoke to the applicant about the manner in which she had reported for work the day prior, and her alleged lateness on February 22. Later that day, Mr. Thompson issued a letter to the applicant in which he censured her for the alleged improprieties.
7The grievor informed the union of Mr. Thompson’s actions, and a grievance was filed by the union on February 24, 2000. That same day, the applicant filed this reprisal complaint with the Board. By letter dated March 3, 2000, and copied to the union, the applicant wrote to Mr. Haffey, and purported to file a grievance alleging a violation of the collective agreement’s non-discrimination clause, referred to above. The full text of that March 3, 2000 letter is as follows:
March 3, 2000
Grievance Under Section 9 of the Collective Agreement
To: Danforth Bus Superintendent J. Haffey
From: C. Sweiger, Operator 22320 Danforth Bus Division
Re: Contravention of Section 34 – Non-Discrimination
of the Collective Agreement by Danforth Bus Superintendent
J. Haffey and Assistant J. Thompson
Dear Sir:
Please be advised that I wish to file a formal grievance under Section 9 of the Collective Agreement because of your contravention of Section 34 – Non-Discrimination of the Collective Agreement (attached) on Friday, February 18, 2000 and the further contraventions on Tuesday, February 22, 2000.
Specifically, on February 18, 2000 you removed me from my normal work and made unsubstantiated allegations in regard to non work activities based on hearsay reports from a worker who is not assigned to Danforth Bus Division. These allegations are false and constitute discrimination against me because I am the only woman operator who has initiated a Work Refusal under the Occupational Health & Safety Act on the unsafe RTS Nova buses. I note that no other male operator who has initiated a Work Refusal under the Occupational Health & Safety Act, on RTS Nova buses, has been subjected to such unwarranted abusive treatment and discipline documentation. On this basis, your action on February 18, 2000, contravenes Section 34 of the Collective Agreement by creating a ‘poisoned work environment’ for me.
Secondly, on February 22, 2000, Assistant Superintendent J. Thompson removed me from my normal work and under the pretense [sic] of interviewing me about attendance, also interviewed me in regard to 2 minor incidents which occur on a daily basis with many other Operators. He then put a Discipline Memorandum (attached) into my file regarding these incidents. His actions have also created a ‘poisoned work environment’ in which I am treated differently from other workers solely because I am the only woman operator to initiate a work refusal on the RTS Nova buses. I note that the heightened scrutiny and the creation of Discipline Memoranda by Assistant Superintendent Thompson are restricted to me alone.
I request that you immediately cease and desist from further contraventions of Section 34 of the Collective Agreement and that you take steps to ensure that Assistant Superintendent Thompson also ceases and desists from further contraventions. I also request that you remove all documentation in regard to these contraventions from my work file.
c.c.P. Quibell, TU-113
Cheryl Sweiger #22220
[emphasis in the original]
8As I have indicated, the parties agree that the February 24 and March 3, 2000 grievances were settled on March 7, 2000.
Decision
9The relevant statutory provision in connection with the issue at hand is section 50 of the Act, and in particular subsections 50(1) and (2), which state:
- (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 Board in which case any rules governing the practice and procedure of the Board apply with all necessary modifications to the complaint.
10The decision of the Board in Toronto Transit Commission [1999] O.L.R.D. No. 2211 is relevant to the instant case. That case involved a complaint by Frank DeFazio (“the complainant”) under section 50(1) of the Act concerning his termination from employment. Prior to filing his application under the Act, the complainant had grieved the matter under his collective agreement. The grievance was settled short of a reference to arbitration. Pursuant to the settlement, which was reached between the trade union and the employer in the absence of the complainant, the complainant was reinstated with full back pay. The complainant returned to work and received the back pay, but insisted on proceeding with his reprisal complaint under section 50(1).
11The employer argued that the settlement of the grievance constituted an election under section 50(2) of the Act, thus barring the applicant from continuing with his reprisal complaint.
12The Board agreed with the employer’s analysis of the section 50(2) election, and found that the complainant had indeed made such an election. At paragraph 28 the Board made the following observations:
- 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 [the Occupational Health and Safety Act]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.
13The Board also declined to inquire into the reprisal complaint on the basis that no labour relations purpose would be served by such an inquiry. In that regard, the Board noted that the nature of the relief sought by the complainant was not sufficiently compelling to warrant an inquiry into the matter.
14In the instant case, it was common ground that the applicant’s reprisal complaint shares much in common factually with the circumstances that gave rise to her grievances, although the applicant contends that the reprisal complaint relies upon an additional allegation unconnected to her grievances. That allegation concerns the applicant’s assertion in her reprisal complaint that on January 11, 2000, some two weeks after she had appeared at the Board on the work refusal matter (referred to above), certain unspecified supervisors of the TTC interviewed several of the applicant’s co-workers to determine if she had committed any workplace improprieties. The applicant argued that, as that incident is not a matter being dealt with under the collective agreement, the Board should proceed to deal it in the context of the reprisal complaint.
15The applicant also drew a distinction between the remedies available to her in her reprisal complaint and in her March 3 grievance. The applicant contended that she could not be made whole unless she has the opportunity to seek a remedy under the Act.
16The applicant also argued that the absence of any mention of the reprisal complaint in the March 7, 2000 settlement is a further factor that should be considered in permitting the reprisal complaint to proceed.
17The Board is not persuaded by the arguments of the applicant. Like the situation in the Toronto Transit Commission case, supra, the applicant’s grievances and the reprisal complaint cover substantially the same ground. The applicant’s allegations in her reprisal complaint concerning the January 11 interview of her co-workers by TTC officials do not significantly differentiate the reprisal complaint from the grievance. In both, the remedies sought by the applicant pertain to the discipline which was imposed by the TTC. The alleged January 11 incident appears not to have had any bearing on the remedies sought by the applicant under either legal proceeding.
18Nor does the Board find merit in the argument concerning the distinction the applicant sought to draw in respect of the remedies available to her under two distinct legal proceedings. The fact is she accepted the resolution of her grievances on March 7, 2000. The TTC may very well not have been inclined to settle those grievances had it known that the applicant did not feel fully satisfied and intended to fill the gap, as it were, by pursuing a proceeding under the Act. To permit the applicant to do so puts the settlement process at risk.
19Finally, the applicant cannot rely on the lack of reference in the March 7, 2000 settlement to the reprisal complaint, in order to justify the reason as to why the reprisal complaint should be heard by the Board. To the extent, if any, that it was open to the applicant to settle her grievances and simultaneously preserve her reprisal complaint under the Act, it was incumbent upon her to have had that issue specifically dealt with in the settlement.
20The Board concludes that by entering into and accepting the benefit of the settlement of March 7, 2000, the applicant made an election under section 50(2) of the Act that effectively bars her from proceeding with this matter. In any event, I exercise my discretion not to inquire into this matter, pursuant to section 96 of the Labour Relations Act, 1995, S.O. 1995, c.1. I do so because the factual allegations and the relief sought in this application are not fundamentally different from what the applicant achieved in the settlement of her grievances, and, accordingly, it would serve no labour relations purpose to proceed further with the complaint.
21The application in Board File No. 3450-99-OH is dismissed. The application in Board File No. 0046-00-U is withdrawn with leave of the Board.
“Patrick Kelly”
for the Board