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HomeMy WebLinkAbout2001-0668.Charles.02-08-01 Decision ~M~ om~o EA1PLOYES DE LA COURONNE _Wi iii~~~i~T DE L "ONTARIO COMMISSION DE REGLEMENT "IIIl__1I'" BOARD DES GRIEFS Ontario 180 DUNDAS STREET WEST SUITE 600 TORONTO ON M5G 128 TELEPHONElTELEPHONE. (416) 326-1388 180 RUE DUNDAS OUEST BUREAU 600 TORONTO (ON) M5G 128 FACSIMILE/TELECOPIE. (416) 326-1396 GSB#0668/0 1 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN ASSOcIatIOn of Management, AdmInIstratIve and ProfessIOnal Crown Employees of Ontano (Charles) Grievor -and- The Crown In RIght of Ontano (Mimstry ofMumcIpal MfaIrs and HOUSIng) Employer BEFORE RandI H. Abramsky Vice-Chair FOR THE UNION Kathleen MartIn Counsel Sack Goldblatt Mitchell BarrIsters and SOlICItorS FOR THE EMPLOYER LIsa Compagnone Counsel Management Board Secretanat HEARING July 30 2002 2 DECISION 1 Background The Instant gnevance alleges a vIOlatIOn of ArtIcle 16 of the collectIve agreement In that "[t]he Employer has Improperly calculated my semonty/contInuous servIce date and Improperly refused to recogmze my contInUOUS servIce as an employee In the Ontano PublIc ServIce from May 11 1977 through November 5 1979 " AccordIng to the AssocIatIOn's opemng statement at the first day of heanng on November 29 2001 the gnevance raises two Issues FIrst, that the gnevor's contInUOUS servIce date (CSD) was Improperly calculated, and second, that the Employer Improperly faIled to recogmze the gnevor's full semonty and servIce for the purposes of her penSIOn. There also appears to be an allegatIOn that the Employer vIOlated the collectIve agreement by provIdIng erroneous InformatIOn to the Ontano PenSIOn Board (OPB) concernIng the gnevor's servI ce On the penSIOn Issues, the Employer takes the posItIOn that the GSB has no JunsdIctIOn over such matters The AssocIatIOn contends that JunsdIctIOn eXIsts by vIrtue of SectIOn 48(12)(j) of the Labour Relations Act as the relevant penSIOn legIslatIOn and plan are "other employment-related statutes" whIch an arbItratIOn board may "Interpret and apply" as well as on the basIs that the alleged conduct IS an abuse of management nghts A substantIal amount of tIme and resources have been spent by the partIes develoPIng an agreed statement of fact, and at least one heanng date was adJourned for 3 that purpose The AssocIatIOn now moves to adJourn thIS matter SIne dIe, pendIng reconsIderatIOn of the penSIOn Issue by the OPB based, In large part, on the agreed statement of facts In thIS matter 2. The Parties' Positions In support of ItS motIOn, the AssocIatIOn asserts that a key concern of the gnevor IS the Impact of the Employer's treatment of her CSD on her penSIOn. The AssocIatIOn submIts that regardless of the GSB's rulIng on the CSD Issue the gnevor wIll seek a reconsIderatIOn of the OPB' S decIsIOn as to whether or not she may "buy back" the penod from May 11 1997 through November 5 1979 under the relevant legIslatIOn and penSIOn plan. The AssocIatIOn argues that there IS a clear Interplay between the legal Issues Involved In the gnevance and the matter before the OPB In that If the Employer IS found to have Improperly calculated the gnevor's CSD the remedy whIch flows from that would Impact her penSIOn Issue It submIts that unless the GSB's proceedIngs are stayed, there IS nsk of endIng up wIth conflIctIng decISIOns regardIng the InterpretatIOn of her "servIce" The AssocIatIOn also asserts that reconsIderatIOn by the OPB may lead to a resolutIOn of the gnevance or at least, a narrOWIng of the Issues before the Board, and result In a more efficIent use of the GSB' s and the partIes' resources In ItS submISSIOn, thIS IS a compellIng labour relatIOns reason to adJourn the GSB heanng. FInally the AssocIatIOn asserts that a delay In proceedIng wIth thIS gnevance, pendIng a decIsIOn by the OPB would not preJudIce the Employer and may well benefit the partIes 4 The Employer opposes the motIOn to adJourn. It submIts that the gnevor's CSD calculatIOn and the proper InterpretatIOn of ArtIcle 16 IS squarely before the GSB regardless of whatever decIsIOn IS made by the OPB as to the gnevor's abIlIty to buy back the penod In questIOn. It submIts that the OPB has no JunsdIctIOn over the CSD/ArtIcle 16 Issue and that thIS Issue wIll remaIn and wIll be raised by the AssocIatIOn should the gnevor be unsuccessful before the OPB It submIts that there IS no efficIency to be gaIned and no real nsk of InCOnsIstent rulIngs Further to elImInate the possibIlIty of any InCOnsIstent rulIng, It proposes that It raise the GSB's lack of JunsdIctIOn on the penSIOn Issues as a prelImInary matter The Employer further asserts that It wIll be preJudIced by the further delay It notes that the tIme penod In Issue IS already many years ago and ItS eVIdence IS placed at further nsk If there IS more delay It also cItes a labour relatIOns reason to proceed to a determInatIOn of the meamng of ArtIcle 16 rather than postpone that tIll the OPB rules on a related, but dIStInCt, matter 3 Decision For the folloWIng reasons, the AssocIatIOn's motIOn to adJourn, SIne dIe, pendIng reconsIderatIOn of the gnevor's claim to buy back the penod May 11 1977 to November 5 1979 by the OPB IS demed. 5 1 At thIS pOInt, no motIOn for reconsIderatIOn wIth the OPB has been filed by the gnevor nor IS there any IndIcatIOn of how long such an appeal may take Consequently the request to adJourn IS for an unknown and potentIally very lengthy penod of tIme 2 The OPB's determInatIOn wIll not resolve one of the pnmary Issues before the GSB - the InterpretatIOn of ArtIcle 16 and whether or not the gnevor's CSD was properly calculated. The OPB has no JunsdIctIOn over those Issues Even If there IS an OPB determInatIOn favourable to the gnevor the CSD/ArtIcle 16 Issue wIll remaIn. An OPB rulIng mIght resolve the matter to the gnevor's satIsfactIOn, but there IS no certaInty that It wIll resolve the gnevance In ItS entIrety or even narrow the Issues Conversely a determInatIOn of the CSD Issue by the GSB may well resolve the penSIOn Issues 3 AccordIngly I conclude that there IS lIttle efficIency to be gaIned by adJournIng thIS matter pendIng reconsIderatIOn by the OPB There IS also a sIgmficant labour relatIOns purpose to be served by proceedIng wIth thIS already qUIte delayed matter Issued at Toronto thIS 1 st day of August, 2002 H, rbnmEJ( RandI H. Abramsky Vice-Chair