HomeMy WebLinkAboutGrievor 19-01-21IN THE MATTER OF AN ARBITRATION BETWEEN:
Ontario Public Service Employees Union
(“the Union”)
and
Kinark Child and Family Services
(the “Employer”)
Re: Grievance No. 2018-0213-0004
Before: Matthew R. Wilson - Arbitrator
For the Union:
David Ragni - Counsel
For the Employer:
Angela Rae – Counsel
Allison Medjuck - Counsel
Hearing held in Hamilton, Ontario on January 17, 2019.
AWARD
1. This grievance challenges the employer’s decision to deny the grievor’s
request to transfer from a full-time position to a relief position.
2. The grievor worked as a full time Child and Youth Worker. In March 2018, he
requested a transfer from full-time status to relief status. I was told that
relief status means that the employee has minimal availability obligations
and can pick up shifts on a casual basis. The employer denied the request,
which was the impetus for this grievance.
3. During the course of submissions, it became apparent that there was no
collective agreement provision entitling the grievor to transfer from full-time
status to relief status. Rather, the union’s case rested solely on seven
examples where, it says, transfers from full-time and part-time status to
relief status had been allowed. It sought to introduce past practice evidence
of these transfers in support of its argument that the employer’s decision was
arbitrary, discriminatory or in bad faith. The union also argued that a
harassment complaint filed in September 2017 was also a possible
motivation for the employer’s decision.
4. The employer objected to the admissibility of past practice evidence. It
argued that such evidence should not be permitted unless there was an
ambiguity in the collective agreement or as part of an estoppel argument. As
neither position was raised by the union, the employer argued that it would
be improper to rely on evidence of past practice.
5. Additionally, the employer argued that such evidence was irrelevant as it
occurred in 2013 or earlier, under two previous collective agreements. It
explained that the collective agreement language had changed in previous
rounds of negotiations and that there was no incident where such a transfer
occurred under the collective agreement for which this issue arose.
6. After considering the parties’ submissions, I ruled orally that the evidence of
past practice was not admissible in this case. As the arbitral authorities bear
out, evidence of past practice is only admissible where there is an ambiguity
in the collective agreement provision or to establish a party’s intentions with
respect to an estoppel argument. Neither of these arguments are available to
the union in this case. Thus, it would be improper to introduce such
evidence as the sole basis for the grievor’s assertion that he ought to have
been granted the transfer.
7. I further explained that the examples put forward by the union were not
relevant since they occurred in 2013 or earlier and pre-dated the changes to
the collective agreement. Thus, these examples could offer nothing to the
analysis of whether the grievor should have been granted the transfer
request.
8. Following my oral ruling, it became apparent that the union had no basis in
the collective agreement for the assertion that the grievor’s request to
transfer from full-time status to relief status ought to be granted. In the
absence of a collective agreement provision stipulating such a right, there
was no basis for me to allow the union’s grievance.
9. For these reasons, the grievance is dismissed.
Dated in Whitby this 21st day of January, 2019.
______________________
Matthew R. Wilson