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Home My WebLink About2012-1543.Bailey et al.13-04-18 DecisionCrown Employees Grievance Settlement Board Suite 600 180 Dundas St. West Toronto, Ontario M5G 1Z8 Tel. (416) 326-1388 Fax (416) 326-1396 Commission de règlement des griefs des employés de la Couronne Bureau 600 180, rue Dundas Ouest Toronto (Ontario) M5G 1Z8 Tél. : (416) 326-1388 Téléc. : (416) 326-1396 GSB#2012-1543 UNION#2011-0340-0089 Additional Files listed in Schedule “A” IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN Ontario Public Service Employees Union (Bailey et al) Union - and - The Crown in Right of Ontario (Ministry of Government Services) Employer BEFORE Nimal Dissanayake Vice-Chair FOR THE UNION Richard Blair Ryder Wright Blair & Holmes LLP Barristers and Solicitors FOR THE EMPLOYER Stewart McMahon Ministry of Government Services Labour Practice Group Counsel HEARING April 11, 2013. - 2 - Decision [1] The Board is seized with a large number of individual grievances filed by the grievors, Ms. Catherine Bailey, Ms. Holly Prophet, Ms. Janet Ricketts and Ms. Shelly Roy, all of which arise out of the surplussing of their positions. The grievances are framed differently alleging violations of various provisions of the collective agreement. [2] The Board was advised that the employer was advancing a motion that relates only to the grievances filed by each of the four grievors alleging a breach of article 20.4 on displacement rights. The motion is to the effect that these grievances were referred to arbitration outside the mandatory time limits specified in article 22.4 of the collective agreement, and that the Board lacked jurisdiction over those grievances. The motion was argued on the basis of an agreed statement of facts and documents filed on consent. [3] The Agreed Statement of Facts is as follows: 1. The grievances at issue are numerous grievances which allege violations of Article 20.4 and 2.1 of the Collective Agreement. 2. Due to the requirements of Article 22.7, which arguably requires that separate grievances be filed regarding each position into which it is alleged that a grievor could displace, numerous grievances were filed on behalf of each individual grievor. Due to a dispute between the parties about the meaning of article 22.7 and more particularly a dispute about whether the Union and the Grievor can assert a claim to more than one displacement opportunity the Union elected to file numerous grievances on behalf of each grievor. 3. Each of these grievances was filed on November 1, 2011. 4. At the same time as these grievances were filed, individual grievances for each individual alleging a violation of Article 20.8 (relating to the alleged failure to place the grievors into temporary assignments) were also filed. These were filed on the same date, November 1, 2011, as the grievances alleging violations of Article 20.4. 5. The grievances were forwarded to the Union’s grievance department on or about December 1, 2011. 6. Stage 2 meetings with respect to both the article 20.4 and article 20.8 grievances were held on December 1, 2011. - 3 - 7. The Employer issued letters denying the article 20.4 grievances on December 13, 2011. 8. The Employer issued letters denying the article 20.8 grievances on December 13, 2011. 9. The Article 20.4 grievances were not referred to arbitration within the timeframe contemplated by the Collective Agreement, as noted in the paragraph below. On investigating, Stephen Giles of OPSEU concluded that due to the similarity of the appearance of the grievances, and the similarity of the wording of the grievances, an administrative error was made. Specifically, Mr. Giles, based on his investigation, concluded that it was incorrectly assumed by staff processing the referrals that the numerous grievances were duplicates of the 20.8 grievances. As a result, only the Article 20.8 grievances were referred to the Ministry File Review Committee and ultimately referred to arbitration. This was a purely administrative error on the part of the Union. 10. The error was not identified until mid-August, 2012, when Mr. Stephen Giles, while preparing for a September 4, 2012 hearing date, was speaking to Mr. McMahon, the Employer’s counsel. During that conversation it first became evident to Mr. Giles that the identified that the Article 20.4 grievances had not been referred to arbitration. Mr. Giles informed employer counsel of the error without delay, and referred the grievances to arbitration on August 17, 2012.To that point in time the Employer was preparing for the arbitration on the basis that the only grievances which had been referred to the Board were the 20.8 grievances. 11. The parties agreed that they would discuss settlement of both the article 20.8 and 20.4 grievances while at the GSB on September 7th without prejudice to the ability of the Employer to raise a timeliness objection and that the GSB had no jurisdiction over the article 20.4 grievances. 12. In the meantime, the grievors also filed grievances on April 26, 2012, alleging that they had been improperly surplussed and their positions improperly reposted in the AMAPCEO bargaining unit. Those grievances were referred to arbitration August 15, 2012. A stage 2 meeting with respect to these grievances was conducted on June 15, 2012 and the Employer issued a denial letter on June 23, 2012. Those grievances were referred to arbitration August 15, 2012. 13. On or about December 5, 2011 the Grievor Janet Ricketts was offered and accepted a direct assignment pursuant to article 20.3. - 4 - 14. On or about December 7, 2011, the Grievor Catherine Bailey was offered and accepted a displacement opportunity pursuant to article 20.4. 15. The Grievor Shelly Roy/Millburn obtained a series of temporary assignments and on October 23, 2012 was offered and accepted a direct assignment pursuant to article 20.3. 16. The Grievor Holly Prophet obtained a series of temporary assignments and on March 15, 2013 was offered and accepted a direct assignment pursuant to article 20.3. [4] The jurisprudence of this Board is clear that in the collective agreement that governs these grievances, the arbitration process is distinct from the grievance procedure, and that consequently the Board has no power pursuant to s. 48(16) of the Labour Relations Act to extend the time limits for referral of grievances to arbitration. See, The Crown in Right of Ontario (Ministry of Attorney General) and OPSEU (Johnston), January 8, 2010, GSB # 2009-1147 (Dissanayake). [5] Union counsel conceded that based on the facts and an application of the Board jurisprudence, the Board would lack jurisdiction to hear these grievances. His submissions were focussed on the inequity that state of the law creates. He submitted that this is a clear case of such inequity. Due to an unfortunate administrative oversight by a member of the union’s staff, and in the absence of any fault on the part of the grievors, they are denied access to arbitration, although they had asserted all along that their collective agreement rights had been denied by the employer. [6] The Board appreciates the union’s “unfairness of the law” argument. From a grievor’s perspective the result of applying the law in these circumstances could justifiably be viewed as very unfair, particularly where the grievance at issue is of a serious nature where the right to a job itself may be at stake. However, union counsel did not argue that the Board had the power to extend the time limit for referral to arbitration under this collective agreement in order to alleviate that unfairness. The fact is that there is no legal basis for the Board assuming such equitable authority, despite the temptation to do so on sympathetic grounds. - 5 - [7] In the circumstances, the inevitable conclusion is that the grievances were referred to arbitration outside the mandatory time limits, the Board has no authority to extend those time limits, and consequently has no jurisdiction to hear and determine the grievances. [8] Accordingly, the grievances subject to this motion are hereby dismissed. Dated at Toronto this 18th day of April 2013. Nimal Dissanayake, Vice-Chair - 6 - SCHEDULE “A” GSB Number Grievor Name OPSEU # 2012-1544 Bailey, Catherine 2011-0340-0090 2012-1545 Bailey, Catherine 2011-0340-0091 2012-1546 Bailey, Catherine 2011-0340-0092 2012-1547 Bailey, Catherine 2011-0340-0093 2012-1548 Bailey, Catherine 2011-0340-0094 2012-1549 Bailey, Catherine 2011-0340-0095 2012-1550 Bailey, Catherine 2011-0340-0096 2012-1551 Bailey, Catherine 2011-0340-0097 2012-1552 Bailey, Catherine 2011-0340-0098 2012-1553 Bailey, Catherine 2011-0340-0099 2012-1554 Bailey, Catherine 2011-0340-0100 2012-1555 Bailey, Catherine 2011-0340-0101 2012-1556 Bailey, Catherine 2011-0340-0102 2012-1557 Bailey, Catherine 2011-0340-0103 2012-1558 Bailey, Catherine 2011-0340-0104 2012-1559 Bailey, Catherine 2011-0340-0105 2012-1560 Bailey, Catherine 2011-0340-0106 2012-1561 Bailey, Catherine 2011-0340-0107 2012-1562 Bailey, Catherine 2011-0340-0108 2012-1563 Bailey, Catherine 2011-0340-0109 2012-1564 Bailey, Catherine 2011-0340-0110 2012-1565 Bailey, Catherine 2011-0340-0111 2012-1566 Bailey, Catherine 2011-0340-0112 2012-1567 Bailey, Catherine 2011-0340-0113 2012-1568 Bailey, Catherine 2011-0340-0114 2012-1569 Bailey, Catherine 2011-0340-0115 2012-1570 Bailey, Catherine 2011-0340-0116 2012-1571 Bailey, Catherine 2011-0340-0117 2012-1572 Bailey, Catherine 2011-0340-0118 2012-1573 Bailey, Catherine 2011-0340-0119 2012-1574 Prophet, Holly 2011-0340-0120 2012-1575 Prophet, Holly 2011-0340-0121 2012-1576 Prophet, Holly 2011-0340-0122 2012-1577 Prophet, Holly 2011-0340-0123 2012-1578 Prophet, Holly 2011-0340-0124 2012-1579 Prophet, Holly 2011-0340-0125 2012-1580 Prophet, Holly 2011-0340-0126 2012-1581 Prophet, Holly 2011-0340-0127 2012-1582 Prophet, Holly 2011-0340-0128 2012-1583 Prophet, Holly 2011-0340-0129 2012-1584 Prophet, Holly 2011-0340-0130 2012-1585 Prophet, Holly 2011-0340-0131 2012-1586 Prophet, Holly 2011-0340-0132 2012-1587 Prophet, Holly 2011-0340-0133 2012-1588 Prophet, Holly 2011-0340-0134 2012-1589 Prophet, Holly 2011-0340-0135 2012-1590 Prophet, Holly 2011-0340-0136 2012-1591 Prophet, Holly 2011-0340-0137 2012-1592 Prophet, Holly 2011-0340-0138 2012-1593 Prophet, Holly 2011-0340-0139 2012-1594 Prophet, Holly 2011-0340-0140 2012-1603 Ricketts, Janet 2011-0340-0152 - 7 - 2012-1604 Roy, Shelly Ann 2011-0340-0141 2012-1605 Roy, Shelly Ann 2011-0340-0142 2012-1606 Roy, Shelly Ann 2011-0340-0143 2012-1607 Roy, Shelly Ann 2011-0340-0144 2012-1608 Roy, Shelly Ann 2011-0340-0145 2012-1609 Roy, Shelly Ann 2011-0340-0146 2012-1610 Roy, Shelly Ann 2011-0340-0147 2012-1611 Roy, Shelly Ann 2011-0340-0148 2012-1612 Roy, Shelly Ann 2011-0340-0149 2012-1613 Roy, Shelly Ann 2011-0340-0150 2012-1614 Roy, Shelly Ann 2011-0340-0151 2012-1663 Ricketts, Janet 2011-0340-0153 2012-1664 Ricketts, Janet 2011-0340-0154 2012-1665 Ricketts, Janet 2011-0340-0155 2012-1666 Ricketts, Janet 2011-0340-0156 2012-1667 Ricketts, Janet 2011-0340-0157 2012-1668 Ricketts, Janet 2011-0340-0158 2012-1669 Ricketts, Janet 2011-0340-0159 2012-1670 Ricketts, Janet 2011-0340-0160 2012-1671 Ricketts, Janet 2011-0340-0161 2012-1672 Ricketts, Janet 2011-0340-0162 2012-1673 Ricketts, Janet 2011-0340-0163 2012-1674 Ricketts, Janet 2011-0340-0164 2012-1675 Ricketts, Janet 2011-0340-0165 2012-1676 Ricketts, Janet 2011-0340-0166 2012-1677 Ricketts, Janet 2011-0340-0167 2012-1678 Ricketts, Janet 2011-0340-0168 2012-1679 Ricketts, Janet 2011-0340-0169 2012-1680 Ricketts, Janet 2011-0340-0170 2012-1681 Ricketts, Janet 2011-0340-0171 2012-1682 Ricketts, Janet 2011-0340-0172 2012-1683 Ricketts, Janet 2011-0340-0173 2012-1684 Ricketts, Janet 2011-0340-0174 2012-1685 Ricketts, Janet 2011-0340-0175 2012-1686 Ricketts, Janet 2011-0340-0176 2012-1687 Ricketts, Janet 2011-0340-0177 2012-1688 Ricketts, Janet 2011-0340-0178 2012-1689 Ricketts, Janet 2011-0340-0179 2012-1690 Ricketts, Janet 2011-0340-0180 2012-1691 Ricketts, Janet 2011-0340-0181 2012-1692 Ricketts, Janet 2011-0340-0182