COURT AFFIRMS DAMAGE PAYMENTS TO UNION MEMBERS IN YOUNG OFFENDER DIVESTMENTS
In 2000, the Employer, in divesting the Syl Apps Youth Centre, Genest Detention Centre for Youth, and Project DARE, failed to require that recognition of OPS seniority for job competition and layoff purposes be included in the Requests for Proposal relating to those facilities.
The Grievance Settlement Board found that to be a violation of Appendix 18 of the Collective Agreement. The Union argued that affected employees who were never provided with their OPS seniority or who had opted out and not obtained employment with the successors should be awarded damages based on the loss of
the opportunity to make their Appendix 18 elections under the conditions required by the Collective Agreement.
The Grievance Settlement Board agreed, and in two decisions issued in March 2003 and July 2004 found that certain employees should be entitled to damages for the lost opportunity, in the amount of two weeks’ pay for each year of their OPS service, amounting to a total of approximately $1.2 million to be
distributed among approximately 50 affected employees. The Employer applied to the Divisional Court for judicial review of the Board’s award, arguing that the Union had not proved that each individual employee suffered actual monetary damages. The application was heard on December 9, 2004. Richard Blair of Ryder Wright Blair & Holmes represented the
Union.
In a strongly worded decision issued March 1, 2005, the Divisional Court upheld the Board’s award, clearing the way for payment of the damages to the employees. Calling the Employer’s action a “gross breach of the rights of the collectivity”, the Court held that the Employer’s position was “unreasonable”; that
in cases where a collective agreement is breached by the Employer in a manner affecting the collectivity or a significant portion of it, “blanket” remedies are a more appropriate labour relations result than individualized remedies; and that the remedy awarded was related to the seniority of the affected individuals, “the very asset destroyed by the
applicant’s breach”.
The Divisional Court’s award affirms that even where a remedy is difficult to quantify, the Employer cannot lightly breach the collective agreement, and can expect to pay significant damages if it does so. The Court also affirmed the value of seniority to employees, and the Grievance Settlement Board’s broad
jurisdiction to fashion remedies that are appropriate from a labour relations perspective.
The full text of the GSB decisions and the Divisional Court decision are attached.
OPSEU (Union) v. MCSS, March 21, 2003 GSB decision
OPSEU (Union) v MCSS, July 19, 2004 GSB decision
MCSS v. GSB & OPSEU, March 1, 2005, Divisional Court Decision
The Employer has filed a Notice of Motion for Leave to Appeal
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