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HomeMy WebLinkAbout1992-2495.Anderson,Neamtz&Savoie.94-05-18 / _h__ _.._~ --.'- " ~ ONTARIO EMPLOYES DE LA COURONNE ;. CROWN EMPLOYEES DEL 'ONTARIO '#., - 1111 GRIEVANCE COMMISSION DE SETTLEMENT .. . REGLEMENT BOARD DES GRIEFS 180 DUNDAS STREET WEST SUITE 2100, TORONTO, ONTARIO. M5G lZ8 TELEPHONE/TELEPHONE (416) 326-1388 180, RUE DUNDAS OUEST BUREAU 2100, TORONTO, fONTARIO) .M5G lZ8 FACSIMILE /TELECOPIE (416) 326-7396 " 2495/92, 2496/92 2497/9-2 IN THE HATTER OF AN ARBITRATION Under ITHE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN OPSEU (Anderson/Neamtz/Savoie) Grievor - and - The Crown in Right of ontario (Ministry of the Environment) Employer BEFORE B Kirkwood Vice-Chairpers.on S. Urbain Member M. O'Toole Member FOR THE P. Lukasiewicz 'i I GRIEVOR Counsel I Gowling, Strathy & Henderson Barristers & Solicitors FOR THE C. Rowan EMPLOYER Counsel Fraser, & Beatty Barristers & Solicitors HEARING: OctoberS, 1993 - -- - _.. __..~ __ r"," . ~. -,,~ .- .. ~ Page 2 ) INTERIM DECISION There are three grievances before the Board, that of Anderson and Neamtz filed on August 5, 1992, and that of Savoie filed on August 11, 1992 . The parties agreed that due to an administrative error, the grievance of Mr. Savoie had not been included with the 9ther grievances but was to dealt with by this Board at this time. The partjes .agreed that this Board had to determine two preliminary objections raised by the employer, before it could deal with the grievances on their merits. Employer's counsel argued that this panel had no I jurisdiction to hear the grievances as the same parties, the same grievors,1 and the substance of the issue before this Board had been dealt with by a panel chaired by Mr. Roberts on October 11, 1990 and was decided by that panel in March 1991.. Employer'~ counsel argued further that this panel had no jurisdlction to hear the matter as the grievance was filed beyond the time limits set out in the collective agreement. union's counsel argued that the Board had jurisdiction to hear the matter as the grievances were new and fresh and were filed as soon as the grievors learned that they had recourse to the grievance procedure to resolve the issues in dispute. Accordingly the new grievances were within the time limits set out in the collective agreement and could be heard by this Board. The background to this grievance is relevant to our decision. Several years ago, the grievors filed nine classification grievances. The parties settled their differences and entered into Minutes of Settlement before an adjudication . .. - . - - -- . - - '-.--- . --- Page 3 into the merits of the dispute was completed. On the consent of the parties, the Minutes of Settlement were made an orde~ of the Board on June 8, 1988. Subsequently, the employer advised the grievors by letter dated January 22, 1990 that it had implemented the Minutes of Settlement. The grievors disagreed with the employer and returned to the Board for a determination on an alleged ambiguity in paragraphs 3 and 4 of the Minutes of Settlement. As there was a dispute over the application of the Minutes of Settlement which was encompassed in the Board's order, the union sought an interpretation in its favour from the 'Grievance Settlement Board. The employer made a preliminary objection to the Board's jurisdiction to interpret the qrder at the hearing convened on October 11, 1990 before a panel chaired by Vice-Chairperson Roberts. The Board heard argument ort the preliminary issue ahd did not hear any evidence on the merits of the grievances. On March 5, 1991 the Board issued its decision on t~e preliminary issues and determined that in the circumstances of the case the Board was functus anq had no jurisdiction to make a determination on the ambiguity alleged by the ~nion, as the parties had made the settlement an order of the Board only for the purpose of enforcem~nt of the terms of the settlement by using section 19(6) of Crown Employees Collective Bargaining Act (CECBA) . vice-Chairperson Roberts concluded that for the Board to interpret an allegeq ambiguity was contrary to the parties' agreement as the Board would tl~ep be relying on the order for a purpose other than that agreed to by the parties. ., As a result of the Board's decision, the union, instituted legal action against the employer for enforcement of the Board's order, on behalf of the grievors. This action is still pending. The union then learned of a decision of the Ontario I. "- Page 4 Court of Justice Hayes J. in Miki Corazza an~ Toronto Western Hospital which had been heard by the court on May 18, 1991, and the union concluded that the enforcement of grievance .settlements should be done by processing a fresh grievance rather than through proceeding through the courts. The union advised the grievors by letter dated July 31, 1992. The grievol;s then filed the grievances that are now before this panel. The .grievancesbefore this panel claim that the employer failed to satisfy all the terms of settlement as. entered into by the parties on June 8, 1988 and made a Board order on June 8, 1993 and grievors seek compliance of the order by the employer. Mr. Neamtz' grievance claimed that I hereby grieve that the Employer has failed to comply with Minutes of Settlement which were made a Consent Order of the Grievance Settlement Board on June 8, 1988. The grievance requests: the Employ~r to make the payments provide in paragraph 3 i of the Settlement forthwith together with interest on this amount that should have accrued from the date of settlement. There is no substantive difference in the other grievances. Before we can deal with the preliminarJ issues raised by the employer, that is, that we are being asked to determine the - same issue that the Roberts' panel decided that it had no jurisdiction to resolve, aild further that the panel has no jurisdiction to hear the grievances as the grievances were filed out of time, we must first deal with another issue, that is, that the union is asking us to enforce the order of June 8, 1988, which is the same remedy as the union is seeking from the courts and flows from the same issues that. are before us. In this situation if we were to decide that we did not have the jurisdiction to hear the merits of the union's grievances -. - -- - 0;:'- .1 ,- Page 5 or if we were .to decide that we had the jurisdiction to hear the merits, but ultimately made a decision on. the merits that was contrary to the union's position, the union could then ask the courts to proceed with its action, as the uriion's action is still pending. According to Exhibit 4, the union has held the action in abeyance with the expectation that the issues could be dealt with by this Board more expeditiously than t!irough the I courts. By holding the action in abeyance it is ~llowing the union to Uhedge its bets" and offers the union an additional chance to make its arguments before a different forum if it does not like the dec is.ion made by this' Board. The parties agreed to the embodiment of their agreement in an order of the Grievance Settlement Board to allow the parties to use. the courts to enforce the Order pursuant to section 19(6) of the Crown Employee S Co~lective Bargaining Act. To now answer the preliminary questions put to us, in the context that the union is asking the court the same questions, and is seeking the same remedies, would lead to parties initiating actions in both the courts and the labour relations arenas in an effort. to achieve their ends and would lead to a multiplicity and duplicity of actions. As a result, we will not make any decision , on the preliminary issues until such time as we are advised by the union that it has. abandoned its action before the courts or the union continues its action through the courts and the court directs the issue of enforcement back to the Grievance Settlement Board. Dated at North York, this 18thday of May , 1994. KirkwoQd Vice Ch.a irper son cs;t~ It~~ Member 1 <~ A-\dL-- Member -;.:;:."'""-. ~.....,..- .~ -