2456-00-U Dag McGann, Applicant v. Her Majesty the Queen in Right of Ontario, Responding Party v. Ontario Public Service Employees Union, Intervenor.
BEFORE: Anthony Brown, Vice-Chair.
DECISION OF THE BOARD; May 3, 2001
[1]. On February 26, 2001, the Board directed the applicant to identify how sections 72(a), 72(c) and/or 76 of the Act are alleged to have been violated by the responding party. The applicant filed a reply on March 15, 2001.
[2]. The applicant’s reply expresses dissatisfaction with the delay in proceeding with his grievance to the GSB, and a concern that the union may not proceed with it because of the cost involved. The applicant reiterates that he was disciplined without just cause. He asserts a right to have a union representative present at discussions with his employer regarding his performance. He summarizes the remedies sought in this application as follows:
In summary I require the Labour Board to decide if a [sic] employee can have an observer or steward present at any supervisory meeting with a manager: under the circumstances (past History between me and Mr. MacLean) am I to be granted an observer or steward on my behalf when required to meet with Mr. MacLean alone. The Labour Board will have to decide was I suspended for JUST CAUSE, were REASONABLE RULES used by the employer in dealing with me under the circumstances. If the Labour Board says I do not have rights to an observer or steward for a supervisory meeting, then I require the Labour Board to amend, enlarge, etc. my Collective Agreements. I Submit that the Labour board has the jurisdiction to alter, amend, change, enlarge etc. my Collective Agreements and is not bound by the restrictions (as mentioned above) place [sic] upon the GSB by my Collective Agreements.
[3]. It is evident from the above-referenced paragraph that the applicant is under some misapprehension about the kind of remedies that the Board would be able or likely to grant in the event that he is successful in his application. The Board would not, for example, order the responding party and intervenor to amend their collective agreement in the manner requested by the applicant. And, although the Board might look at the circumstances of the disciplinary suspension against the applicant, it would not make a determination as to whether the applicant was disciplined for “just cause” under the collective agreement. This application is not a substitute for a grievance under a collective agreement. The issue before the Board concerns the exercise or attempted exercise of statutory rights under the Labour Relations Act, 1995. The applicant may therefore wish to give some thought as to whether he wishes to press ahead with the application if these are the remedies that he expects at the end of the day. The parties should also be aware that the Board has discretion as to whether or not to hear an application under section 96 and may decline to do so if, for example, the hearing would serve no useful labour relations purpose.
[4]. The Board declines to decide at this juncture, solely on the pleadings, whether or not the applicant has pleaded a prima facie case. It remains open to a party to raise this issue at the hearing.
[5]. The Board declines to defer to arbitration. This application concerns the exercise of statutory rights, with concomitant remedial powers under section 96, and is therefore different from the arbitration process at the Grievance Settlement Board.
[6]. This application will be scheduled for a hearing.
[7]. I am not seized.
“Anthony Brown”
for the Board