2009 - OPSEU (Hunt et al) and Ministry of Attorney General, GSB ...

More documents

Recommendations

Info

- 14 -[32] Following Re Courtney, the Board determined that its jurisdiction to order that a harasserbe transferred or discharged depended on “whether a particular remedial order is absolutelynecessary to finally and effectively remedy a grievance…” (Par. 29) The Board continued:If the grievor can be redressed without such an order, the granting of such anorder will not be “necessarily incidental” to the employee’s right to grieve and theboard’s statutory duty to finally decide grievances, as contemplated by the courts.It would rather be an incursion by the board into the prohibited zone ofmanagement rights. Similarly, if such an order is not absolutely necessary toremedy the grievance, it takes the flavour of punitive action as opposed toremedial action. In other words, it is the necessity of a particular order to remedya grievance, which makes it a remedial order within the board’s powers ratherthan an unauthorized exercise of management functions or punitive action.[33] These cases establish that even though a remedial order may impact on managerial rights,the Board has the authority to make such an order when it is necessary to do so to remedy thegrievance. Accordingly, based on the jurisprudence, it is not sufficient for the Employer to assertthat the decisions regarding the production of transcript work fall within the realm of amanagement right, which cannot be usurped by the Board. If it is necessary to do so, in order tofulfill its mandate to provide a full and final resolution of a grievance, the Board has theauthority to issue remedial orders that impact on managerial rights.[34] As stated in Howe/Dalton/Loach, supra at par. 29, “whether a particular remedial order isabsolutely necessary to finally and effectively remedy a grievance is directly linked to thequestion of whether the board has jurisdiction to grant that order.” Thus, whether the Board hasjurisdiction over how the Employer responds to the Hunt decision, on a prospective basis,depends on whether that issue “is absolutely necessary to finally and effectively remedy thegrievance.”
- 15 -[35] That question, in turn, entails an examination of what was grieved. If the remedy flowsfrom the original grievances, and is “absolutely necessary” to effectuate a full resolution, thenthe Board has jurisdiction even though the matter involves a managerial right. If the issue doesnot flow from the original grievances, and is a new issue, the Board does not have remedialjurisdiction flowing from the Hunt decision. It should be noted that the Employer does notcontest the Union’s right to challenge whatever actions it takes in regard to transcript servicesunder the collective agreement, though a new grievance, or under statute. It simply contests theGSB’s jurisdiction to do so as part of the remedy in the Hunt decision.[36] Another factor to consider is the admonition of Ontario Court of Appeals in Re Entrop v.Imperial Oil Ltd. (2000) 50 O.R. (3d) 18 (Ont. C.A.), at par. 57, that jurisdiction does not flowbackwards from a board’s broad remedial powers but must be based on what issues are actuallybefore the board or tribunal. There, the Court stated:The Board cannot work backwards from its remedial powers to enlarge thesubject matter of the complaint. In other words the Board’s remedial powerscannot confer jurisdiction over a matter if the Board had no jurisdiction over it atthe outset. The range of remedies available to the Board, though broad enough toinclude future practices, must be linked to the subject matter of the complaint.To the same effect is Re Amalgamated Transit Union, Local 583 and City of Calgary (2005), 139L.A.C. (4 th ) 1 (Hart).[37] In the case before me, however, it is my conclusion that I do not have the jurisdiction todetermine whether the Employer’s new proposed regulatory model is consistent with thecollective agreement, or the Board’s decision in Hunt, as part of the remedial aspects of this case.
Page 4 and 5: - 4 -prospective remedies. In parti
Page 6: - 6 -[13] I conclude that the July
Page 10 and 11: - 10 -[22] What this means - as req
Page 12 and 13: - 12 -the Divisional Court of Ontar
Page 16 and 17: - 16 -The Employer’s plan raises
Page 18 and 19: - 18 -[43] Similarly in Re Western
Page 20 and 21: - 20 -Employer’s proposal which,
Page 22 and 23: - 22 -appears, as the Union asserts
Page 24: - 24 -[57] Accordingly, for the rea

2009 - OPSEU (Hunt et al) and Ministry of Attorney General, GSB ...

Create successful ePaper yourself

Delete template?

Save as template?