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HomeMy WebLinkAbout1996-0559.Osmani.99-04-06 Decision o NTARlO EMPUJYES DE LA COURONNE CROW"! EMPLOYEES DE L 'ONTARlO .. GRIEVANCE COMMISSION DE SETTLEMENT REGLEMENT BOARD DES GRIEFS 180 DUNDAS STREET WEST SUITE 600 TORONTO ON M5G 128 TELEPHONBTELEPHON~ (416) 326-1388 180 RUE DUNDAS OUEST BUREAU 600, TORONTO (ON) M5G 128 FACSIMILBTELECOPIE. (416) 326-1396 GSB # 559/96 OPSEU # 96B681 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BElWEEN Ontano Pubhc ServIce Emplovees Umon (Osmani) Grievor - and - The Crown 111 Right of Ontano (Mimsm of Northem Development and Mines) Employer BEFORE Richard M, Brown Vice Charr FOR THE George Richards GRIEVOR Gnevance Officer Ontano Pubhc ServIce Emplovees Umon FOR THE RandI Wrmght EMPLOYER Semor Hmnan Resources ConsultmIt Human Resources Management Mimsm of Northem Development mId Mines HEARING March 29 1999 The Ministry contends the grievance at hand is barred by the settlement of an earlier grievance This award deals exclusively with this preliminary objection I From April of 1986 to October of 1995, Ike Osmani was employed under a series of unclassified contracts, with brief breaks in service in April of 1990, April of 1992 and June of 1995 In the first grievance, filed on April 27, 1995, Mr Osmani contended his then current unclassified position should have been converted to a classified one The settlement of this grievance is dated July 24, 1995 and states The parties hereto agree to full and final settlement of the above- captioned grievance and any and all related matters on the following terms 1 Effective one week after the signing of this settlement, the Grievor will be placed on a two month contract at the Geoscientist 3 level, step 3 ($1,145 49 per week) 2 For a period of 6 months after the above contract of employment, the Grievor will be entitled to bid on restricted competitions with the Ministry of Northern Development and Mines 3 Upon termination of the 2 month contract, the Ministry agrees to pay the Grievor a lump sum payment of $11,455 00 in lieu of any severance payment This payment will be subject to all mandatory deductions 4 The Grievor agrees that this is a full and final settlement of the issue regarding his employment with the Ministry 5 The Union and the Grievor agree to withdraw the grievance At the time this settlement was negotiated, the grievor-s penultimate contract had expired and had not been renewed The second grievance was filed on September 6, 1995 It alleges the employer discriminated against the grievor by not placing him in a classified position The remedy sought is a classified position Mr Osmani testified the crux of his complaint was that his applications for classified postings had been denied No evidence was led of any such postings occurring after the settlement There is some dispute as to the number of such postings between the grievor-s entry into the bargaining unit and the settlement The employer claims there were only two one for which the grievor applied and then withdrew, and another for which neither of the applicants was found to have been qualified and which was ultimately canceled The grievor denies ever withdrawing from a competition II The employer contends the second grievance is barred by the settlement of because it resolved any claim for a classified position based upon events which preceded the settlement The union argues the instant grievance is valid because it addresses a different issue than the first grievance did According to this line of argument, the first grievance deals with the conversion of a unclassified position, whereas the second deals with the denial of the grievor-s application for one or more classified positions The employer-s view of the settlement is the correct one This is so even though the two grievances address different matters as the union suggests The question is not whether the subject matter of the two grievances is the same The question is whether the second grievances raises an issue resolved by the settlement The answer to this question is in the affirmative The settlement went beyond the first grievance Thegrievance was limited to the conversion of an unclassified position, but the settlement was much broader in scope The broad scope of the settlement is apparent from both its language and its structure The preamble states the parties reached a .full and final settlement. not only of the grievance but also of .any and all related matters. In paragraph 5, the grievor acknowledged there was a .full and final settlement of the issue regarding his employment with the Ministry. Any doubt about the meaning of these words is put to rest by the structure of the settlement It ended the grievor-s employment after an extension of two months, in consideration of a .severance. payment, subject only to the possibility of his obtaining further employment by bidding in restricted competitions during the ensuing six months In other words, the grievor agreed to accept $11 ,455 and an addtional two months. work in exchange for relinquishing any claim to further employment, unless he was successful in bidding in a restricted competition The claims relinquished in this way included any contention that an earlier application for a classified position had been improperly denied The grievance is dismissed Dated at Toronto, this 6th day of April, 2000 Richard M Brown, Vice Chair