1390-01-U Barbara Munroe, Applicant v. Workplace Safety and Insurance Board, Responding Party, v. Canadian Union of Public Employees and its Local 1750, Intervenor.
BEFORE: Timothy W. Sargeant, Vice-Chair.
DECISION OF THE BOARD; August 30, 2001
1This is an application brought pursuant to section 96 of the Labour Relations Act, 1995, S.O. 1995, c.1, as amended (the "Act") that the responding party union has breached section 72 and section 74 of the Act, and that the responding party employer (the “WSIB”) has breached section 72 of the Act.
2The WSIB has, in correspondence dated August 22, 2001, submitted that the applicant has pleaded no facts or evidence to support a finding that the WSIB has breached section 72 of the Act. The WSIB further submits the Board has no jurisdiction to make the orders requested in the application against the WSIB.
3Without reviewing the application in its entirety, the essence of the complaint against the WSIB is that the WSIB has, notwithstanding the representations of the Applicant, “permitted inequalities in pay grade to exist between equivalent positions, as well as inaccurate job descriptions to exist which descriptions lead to improper equivalence of positions differing in terms of duties performed and job complexity; furthermore, the WSIB has failed universally to honour the terms and spirit of the post-1995 redeployment of Bargaining Unit personnel”.
4As remedy against the WSIB the applicant requests:
an order directing the Respondent Workplace Safety and Insurance Board (hereinafter the “WSIB”), to rectify existing inequalities in pay grade between positions which are more or less equivalent in terms of work and responsibilities, and to correct job descriptions which do not fairly and accurately reflect the work performed by the employees occupying the positions concerned, particularly with respect to the position and pay grade of the applicant; and
an order directing the respondent, WSIB to compensate the applicant for the full period during which inequalities in pay grades between her position and approximately equivalent positions have existed, by paying her the difference between her position and the approximately equivalent higher salary grade positions.
5Section 72 of the Act states:
- No employer, employers' organization or person acting on behalf of an employer or an employers' organization,
(a) shall refuse to employ or to continue to employ a person, or discriminate against a person in regard to employment or any term or condition of employment because the person was or is a member of a trade union or was or is exercising any other rights under this Act;
(b) shall impose any condition in a contract of employment or propose the imposition of any condition in a contract of employment that seeks to restrain an employee or a person seeking employment from becoming a member of a trade union or exercising any other rights under this Act; or
(c) shall seek by threat of dismissal, or by any other kind of threat, or by the imposition of a pecuniary or other penalty, or by any other means to compel an employee to become or refrain from becoming or to continue to be or to cease to be a member or officer or representative of a trade union or to cease to exercise any other rights under this Act.
6As a statutory tribunal, the Board exercises a jurisdiction conferred by the Act. This means the Board may act only on these applications which reveal some breach of the Act or otherwise trigger the Board’s jurisdiction. It is not every labour relations issue that the Board has jurisdiction to determine.
7To find a breach of section 72(a) it must be determined that the behaviour complained about was imposed “because the person was and is a member of a trade union and was or is exercising any other rights under this Act”. To find a breach of section 72(b) it must be determined that the behaviour complained about “seeks to restrain an employee or person seeking employment from becoming a member of a trade union or exercising any other rights under the Act”. Finally, to find a breach of section 72(c) the behaviour complained about must be intended
“to compel an employee to become or refrain from becoming or to continue to be or to cease to be a member or officer or representative of a trade union or to cease to exercise any other rights under the Act”.
8Counsel for the applicant submits:
In her application under s. 96 of the Act, the applicant pleads in Schedule “B" and the 35-page Appendix 3 thereto that she has faced some forms of discrimination or disadvantage with respect to employment, remuneration, status as a consequence of organizational redeployment, and opportunities for advancement. She also, be it noted, complains that she has been disadvantaged or has faced discrimination with respect to the redress of grievances or the resolution of problems pursuant to the collective agreement and the dispute resolution process.
Pursuant to s. 56 of the Act, for example, the union, employer and employee are bound by the collective agreement (we would suggest that the [sic] are required to uphold the letter and spirit of the agreement). The union has a duty of care fairly to represent the employee with respect to grievances and difficulties brought to its attention; the applicant complains that it failed to perform this duty adequately. The employer has the duty to facilitate the settlement of grievances or problems, and to ensure that there is no systemic breakdown of the collective agreement process; the applicant contends that the employer failed to observe such obligations.
The story of Ms. Munroe since about 1995 has been one of a quest for remedy and relief. These, she asserts, have been denied to her.
Statutory Interpretation
Ms. Munroe submits that her application is included within the meaning of s. 72 of the Act. S.72(a) states that:
- No employer, employers' organization or person acting on behalf of an employer or an employers' organization,
a. shall refuse to employ or to continue to employ a person, or discriminate against a person in regard to employment or any term or condition of employment because the person was or is a member of a trade union or was or is exercising any other rights under this Act; [emphasis added]
The words or was or is exercising any other rights under this Act are clear. They do not require the assistance of profound statutory interpretation to make them clear. It would be entirely unreasonable to claim that the clause in question is some special term or art or that it should be interpreted in some limited technical sense in order to determine what the legislature intended when it chose these simple words.
The words or was or is exercising any other rights under this Act should be interpreted according to their ordinary meaning, i.e., that s. 72 includes the violation of any rights set forth under the Act in any section of that Act. No alternative interpretation is plausible. In the absence of a reason to reject it, the ordinary meaning must prevail (Driedger on the Construction of Statutes, 3rd ed. [sic] by Ruth Sullivan (Toronto: Butterworths), 1994, p. 7) . The applicability of the ordinary meaning rule necessarily dictates that the scope of general words (in s. 72) not be narrowed by restrictive, technical or legalistic interpretation (Driedger, p. 29) as Ms. Kosmidis implies.
Decision
9In regards to the allegation that the WSIB has breached section 72 of the Act the Board finds that the application in its pleadings do not establish a prima facie case that the WSIB has refused to employ a person, discriminated against a person or impose contractual terms of employment on a person because such person was a member of a trade union. Further the submission of counsel for the applicant in regards to “or was or is exercising any other rights under the Act” is not accepted. The pleadings establish that the applicant was attempting to have her concerns proceed through the grievance procedure and eventually be resolved in her favour. On this aspect the applicant has pleaded that the responding party union has breached section 74 of the Act. There are just no pleadings that even relate to any allegation that the WSIB’s actions were taken because the applicant “was or is exercising any other rights under the Act”. The fact that an individual may be attempting to exercise a right under the Act is not enough to bring section 72 into play. What must be shown is that an employer (the WSIB in this instance) took the disputed action because an individual was or is exercising any other right under the Act. The applicant had filed a diarised schedule of events relating to her concerns. Even assuming such events are factually correct, such facts do not in any way support a finding that the WSIB took the disputed actions because the applicant was exercising a right under the Act. As stated before it is not every labour relations issue that this Board has jurisdiction to determine.
10For all the above reasons the Board finds that the pleadings do not establish a prima facie case, even accepting that all the facts pleaded are true, that the WSIB has breached section 72 of the Act. As section 72 of the Act only relates to an employer’s action a union may not be found in breach of section 72 of the Act.
11This application is therefore dismissed in relation to the complaint that section 72 of the Act has been breached.
12The application is not dismissed in regards to the section 74 allegations.
13This panel does not remain seized.
“Timothy W. Sargeant”
for the Board