HomeMy WebLinkAbout2014-4059 et al.Askarzada et al.18-07-17 Decision - AmendedCrown 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# 2014-4059; 2014-4249; 2014-4326; 2014-4327; 2014-4328; 2014-4329; 2014-4330; 2014-4334;
2014-4335; 2014-4501; 2014-4502
UNION# 2014-0534-0026; 2014-0534-0028; 2014-0534-0031; 2014-0534-0032; 2014-0534-0033; 2014-0534-
0034; 2014-0534-0035; 2014-0534-0039; 2014-0534-0040; 2014-0534-0041; 2014-0534-0042
IN THE MATTER OF AN ARBITRATION
Under
THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT
Before
THE GRIEVANCE SETTLEMENT BOARD
BETWEEN
Ontario Public Service Employees Union
(Askarzada et al) Union
- and -
The Crown in Right of Ontario
(Ministry of Community and Social Services) Employer
BEFORE
Daniel Harris
Arbitrator
FOR THE UNION
Seung Chi
Ontario Public Service Employees Union
Grievance Officer
FOR THE EMPLOYER Andrew Lynes
Treasury Board Secretariat
Legal Services Branch
Counsel
HEARINGS October 22, 2015, April 24, November 1,
December 22, 2017, June 27, July 11, 2018
-2-
DECISION
[1] This is a job-posting grievance arising out of the Ministry of Community and
Social Services, Family Responsibility Office. There were originally nine (9)
grievors. There are now five (5). The job competition was for the position of
Enforcement Services Officer and was run in October 2014.
[2] By a decision dated January 9, 2018, the Board determined that if the outcome of
these proceedings resulted in a re-run of the competition, any retroactivity to a
successful grievor’s pay should commence with the starting date of such a re-run
competition.
[3] Article 22.16 of the collective agreement governs this proceeding. That article
reads as follows:
22.16 MEDIATION/ARBITRATION PROCEDURE
22.16.1 Except for grievances concerning dismissal, sexual
harassment, and/or human rights, and Union grievances with
corporate policy implications, all grievances shall proceed
through the GSB to a single mediator/arbitrator for the
purpose of resolving the grievance in an expeditious and
informal manner.
22.16.2 The mediator/arbitrator shall endeavour to assist the parties
to settle the grievance by mediation. If the parties are
unable to settle the grievance by mediation, the
mediator/arbitrator shall determine the grievance by
arbitration. When determining the grievance by arbitration,
the mediator/arbitrator may limit the nature and extent of the
evidence and may impose such conditions as he or she
considers appropriate. The mediator/arbitrator shall give a
-3-
succinct decision within five (five) days after completing
proceedings unless the parties agree otherwise.
…
22.16.7 Decisions reached through the mediation/arbitration process
shall have no precedential value unless the parties agree
otherwise.
[4] Accordingly, this decision has no precedential value.
[5] Having heard the submissions of the parties and following my review of the
particulars filed by the Union on behalf of the grievors, I order that the job
competition be re-run. Taking those particulars as true and provable, the best
result that the Union could achieve is a re-run of the competition. It is more likely
than not that none of the grievors would be directly placed into the positions.
Such a remedy is very rare and is certainly not likely in the circumstances
present here.
[6] I heard the submissions of the parties and met with them on more than one
occasion to review the circumstances present here. I am content that the
expeditious and informal resolution of these matters favours a re-running of the
competition.
[7] The submissions of the parties focussed on the law relating to an issue being
moot. None of the cases relied upon by either of the parties involved a provision
such as article 22.16 set out above. The Union properly conceded that article
-4-
22.16 vests a wide discretion to an arbitrator. The cases dealing with mootness
are not engaged because of article 22.16.
[8] I exercise that discretion to order that the job competition be re-run. The logistics
of the re-run are remitted to the parties. Either party may bring those issues back
on before me if they are unable to agree upon the logistics of re-running the job
competition. I encourage the parties to give due consideration to the incumbents
who have occupied the positions for a considerable length of time. Some of the
incumbents were present at the hearing and made submissions.
Dated at Toronto, Ontario this 17th day of July, 2018.
“Daniel Harris”
______________________
Daniel Harris, Arbitrator