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Home My WebLink About1989-0346.Anderson et al.90-05-24 ~ ' ' ONTARIO EMPL 0 YI~S DE LA C OURONNE "* CROWN EMPLOYEES DE L '(~TARIO GRIEVANCE CQMMISSION DE SETTLEMENT REGLEMENT BOARD DES GRIEFS 1BO DUNDAS S~EET WEST, SUITE 21~. T~ONTO, ~TAR~. MSG tZB TE~ONE/TELEPHO~E. fd~6~ 326- 180, RUE ~NDAS OUEST. BurEAU 2;~, T~TO tO~A~). MSG IZ8 FACStM~LE/~L~CO~E : (4 ~6J 326- 346/89, 347/89 1308/88 IN THE MATTER OF AN ARBITRATION I ' Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD · BETWEEN: OPSEU (Anderson et al) Griever - and - The Crown in Right of Ontario (Ministry of Revenue') Employer - and - ~ BEFORE: M.B. Keller Vice-Chairperson J. McManus Member i F. Gallop Member FOR THE N. Wilson GRIEVOR: Counsel Gowling, Strathy & Henderson Barristers & Solicitors FOR THE C. McKeown EMPLOYER: Counsel Fraser & Beatty Barristers & Solicitors HEARING: Ma~ch 29, 1990 DECISION In these grievances, the Grievors allege that they are improperly classified in the Financial officer 2 class series as "Financial officer 2 (Atypical)" and they seek to be classified properly as "Financial Officer 4" or, alternatively, as "Financial Officer 3". At the outset of the hearing on March 29, 1990, counsel for the Employer raised a preliminary objection that the hearing of these grievances was barred by the doctrine res. 5udicata by virtue of a settlement s~gned by most of the present Grievors on October 27, 1986. By virtue of that settlement, the Grievors were · reclassified from the Tax Auditor class series to their present classification of Financial Officer 2 (Atypical) effective Febr. uary .1, 1986. Paragraph. five of the settlement stated, in part, that "it is understood that the captioned grievors will not submit further classification gri.evances on the same set of facts." On the preliminary motion, the'issue therefore became whether the "facts" demonstrated that the job functions, duties, knowledge and responsibilities required by the Employer of the Grievors had changed between the period of October 27, 1986 and February, 1989, when the grievances were submitted. It was submitted that this was the only issue as a matter can only be res judicata if there has been a prior ~inding on the same facts between the same parties. With respect to this issue, the Union and the Grievors called one witness: Joe Daniels, one of the Grievors. The employer called no evidence but did cross-examine Mr. Daniels. Mr. Daniels testified that the grievors are employed in the Motor Fuels and Tobacco Tax Branch - Audit Division of the Ministry of Revenue. They are, in general terms, responsible for ensuring, through audit, compliance by taxpayers with the Fuel Tax Act, the Gasoline Tax Act and the Tobacco Tax Act. Mr. Daniels identified 11 changes affecting the job that had occurred between 1986 and the time of the grievances. Each of these changes, he claimed, has ~ direct impact on the actual job function performed, the knowledge and skill required of the grievor', the responsibility borne by the grievor and the contacts experienced by the grievor, all factors relevant to job classification. After carefully rewiewing the testimony of the witness the Board is satisfied that there has been no material change in the job required of the grievors from the time the Minutes of Settlement were entered into. It is a well respected principle of labour law that the resolution of disputes by'consensual settlements between the parties to a collective agreement is to be encouraged. As a general rule, therefore, where parties have reached a settlement during the course of the grievance and arbitration procedure, the existence of the settlement will prevent the revival of the same grievance Brown and Beatty, Canadian Labour Arbitration, 3d ed. at page 22-66. The foundation for the general rule has been expressed as fo 11 ows: The authorities are legion that a board of arbitration has no jurisdiction to consider, or alternatively, that ~ the grie~or and his or her union representatiwes are barred and estopped from processing a grievance, whic~~ is identical to a former grievance filed by the grievor and either withdrawn, abandoned or settled, or determined by a board of arbitration. Some of these cases proceed on the basis of estoppel and others on the principles of res judicata, but regardless of the approach taken, the authorities are overwhelming that a board of arbitration has no jurisdiction to entertain such a grievance .... There is also substantial authority to support the proposition that an arbitration board has no jurisdiction to determine a grievance which, though not identical in wording and form to a former grievance lodged by the same grievor, is identical in substance. Re Canadian Union of Public Employees, Local 207 and City of Sudbur¥ (1985), 15 L.A.C. 403 at 403-404 (Reville). The arbitrator in the Sudbury case also relie.d on a citation from an earlier decision which emphasizes that settlements must be final in order to avoid abuse of the grievance procedure: The grievance procedure is designed to provide members of the bargaining unit and the union with a method of orderly processing their respective grievan.ces. In order to avoid the expense inherent in the arbitration process, the procedure provides for bona fide efforts to b~ made by both the grievor and management to settle the dispute at various stages and at various levels. It follows, therefore, that if the grievor and/or the union actually or impliedly accepted the decision of .management, they should not be allowed to have second thoughts on the matter and reprocess essentially the same grievance at a later date. If this were to be allowed, management would never know whether, in fact, its decision has (sic) accepted by the individual grievor or the union representing him, and management could be plagued and harassed in what would be a plain abuse of the grievance procedure. · C.U.P.E. and Sudbury at page 404. The general rule barring arbitration of a grievance that is identical to one that was settled has been consistently followed: Where a grievance has been withdrawn abandoned, settled or determined by .an arbitrator (or a board arbitration), a doctrine of res ~ud~cata operates to prevent a grievance which is identical in substance, if not in form, from being brought before another arbitrator. Indeed, an arbitrator must decline jurisdiction to entertain the subsequent grievance: (see Re: CUPE, Local 207 and City of Sudbury (1965), 15 L.A.C. 403) (Reville); Re: U.E.W. Local 504~and Canadian Westinahouse Co. Ltd. (1961), 11 L.A.C. 280 (Cross), where a policy grievance on a matter which had been ~determined in an individual grievance was found to come within the doctrine of res judiQata: Re: Al~oma Steel Corp. Ltd. and U.S.W. Local 2251 1982, 6 L.A.C. (3d) 346 Brown. Re: Toronto Transit Commission and Amalgamated Transit Union (1985), 21 L.A.C. (3d) 346 at 351 (Saleman); cited with approval in British Columbia Hydro & Power Authority and International Brotherhood of Electrical Workers, Local 213 (1086), 25 L.a.c. (3d) at 116 (Munroe) . In the view of the Board, the Settlement wording in this case is an unambiguous indication that the parties intended to resolve this issue such that it could and should not be raised ina subsequent grievance. Accordingly, the preliminary motion of the employer is maintained and the grieYance~ are dismissed. Nepean, Ontario, this 24th day of May, 1990. M.B. Keller, Vice-Chairperson J. MOManus, Me.er F. Gallop, Member.