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HomeMy WebLinkAbout2016-1987.Pereira.17-11-22 Decision Crown 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#2016-1987 UNION# 2016-0551-0018 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN Ontario Public Service Employees Union (Pereira) Union - and - The Crown in Right of Ontario (Ministry of Community Safety and Correctional Services) Employer BEFORE Ian Anderson Arbitrator FOR THE UNION Jane Letton Ryder Wright Blair & Holmes LLP Counsel FOR THE EMPLOYER Joohyung Lee Treasury Board Secretariat Legal Services Branch Counsel HEARING DATES April 21, 2017 and November 21, 2017 - 2 - DECISION [1] This grievance is subject to Article 22.16. Such grievances are heard by a single mediator/arbitrator who is to endeavour to assist the parties in settling the matter. In the absence of a settlement the mediator/arbitrator is to determine the matter in an expeditious and informal matter. The decisions are without precedent or prejudice. [2] Attempts to settle this matter proved unsuccessful. [3] The Grievor began his employment with the Ontario Pubic Service (“OPS”) in 1983 as a youth worker at Syl Apps Youth Centre with the predecessor of the Ministry of Community Safety and Correctional Services. He was initially employed as an unclassified (i.e. temporary) worker and subsequently became a classified (i.e. permanent) employee. Syl Apps was divested by the Employer as of December 1, 2000. The Grievor elected to continue his employment at Syl Apps and left the OPS. Subsequently, on or about March 5, 2001, the Grievor returned to employment in the OPS. He has continued to be employed with the OPS since. [4] Part of the Grievor’s corporate employment file relating to his employment at Syl Apps has gone missing. The Grievor only discovered this in October 2016 in the context of seeking to clarify his retirement options. The Grievor asserts that his pension service date is November 27, 1985. This is based on a “Pay and Benefit Job Summary” print out found in the file which shows that date as his date of hire or “conversion”, i.e. from unclassified to classified employment. The Employer asserts that the date of the Grievor’s conversion from unclassified to classified is December 1, 1986. The basis for this assertion is various documents and that the Grievor’s pension service date is December 1, 1986. Participation in the pension plan is mandatory for classified employees, therefore the Grievor could not have been a classified employee prior to that date. [5] On October 8, 2016 the Grievor filed the grievance which is before me. The grievance states: I grieve that my rights under the collective agreement have been violated, including but not limited to Articles 2 & 3 and any other applicable legislation or statutes. I requested to see my full corporate file for the last 4 months to try and correct information regarding my accumulated pension date. This has gone on too long and I may miss the required time to submit my letter of retirement before the November 30th date. Management has chosen to “not find it” in retaliation to my union activities. - 3 - Settlement Desired: Full redress. Make the griever whole. To agree my pension commenced by September 1985. [6] There is no evidence to support the allegation that Management had “chosen to “not find it [i.e. the Grievor’s corporate file]” in retaliation to my union activities”. It is dismissed. [7] To the extent that the grievance seeks an adjustment of the Grievor’s pension service date, it is untimely. There is no dispute that over the years the Grievor received annual statements with respect to his pension showing his pension service date as December 1, 1986. If he wished to challenge that date, he should have filed a grievance long ago. Further, and in any event, it would be inequitable to require the Employer to adjust the Grievor’s pension service date so long after the fact. I understand that the cost of doing so would be in excess of $80,000, at least half of which would be payable by the Employer. Had the Grievor acted in a timely way, this cost could have been largely if not entirely avoided. [8] To the extent that the grievance is with respect to the loss of a portion of the corporate file, on the evidence before me it is timely: the Grievor did not learn that a portion of his file was missing until October 2016. However, while the loss of the file is unfortunate, the Union could point to no provision of the collective agreement that was breached other than, arguably, the management rights clause. No authority was provided as a basis for departing from the Board’s longstanding jurisprudence that a breach of the management rights clause alone does not give rise to a grievance. [9] For all of the foregoing reasons, the grievance is dismissed. Issued in Toronto this 22nd day of November, 2017. ___________________________ Ian Anderson, Arbitrator