HomeMy WebLinkAbout2018-2900.McConomy et al.19-09-25 Decision
Crown Employees Grievance Settlement
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Commission de
règlement des griefs
des employés de la
Couronne
Bureau 600
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Toronto (Ontario) M5G 1Z8
Tél. : (416) 326-1388
Téléc. : (416) 326-1396
GSB#2018-2900
UNION# 2018-0719-0023
IN THE MATTER OF AN ARBITRATION
Under
THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT
Before
THE GRIEVANCE SETTLEMENT BOARD
BETWEEN
Ontario Public Service Employees Union
(McConomy et al) Union
- and -
The Crown in Right of Ontario
(Ministry of the Solicitor General) Employer
BEFORE Brian P. Sheehan Arbitrator
FOR THE UNION Dan Sidsworth
Ontario Public Service Employees Union
Grievance Officer
FOR THE EMPLOYER Caroline Markiewicz
Treasury Board Secretariat
Employee Relations Advisor
HEARING September 11, 2019
- 2 -
Decision
[1] The Employer and the Union at the Kenora Jail agreed to participate in the
Expedited Mediation/Arbitration process in accordance with the negotiated
Protocol. It is not necessary to reproduce the entire Protocol. Suffice to say, that
the parties have agreed to a True Mediation/Arbitration process wherein each
party provides the Arbitrator with their submissions setting out the facts and the
authorities they respectively will rely upon. This decision is issued in accordance
with the Protocol and with Article 22.16 of the collective agreement; and it is
without prejudice or precedent.
[2] This grievance is a group grievance filed on behalf of the members of the Local
719 Bargaining Unit.
[3] The grievance relates to Appendix COR33 of the January 1, 2015 to December
31, 2017 collective agreement. The relevant wording of the Appendix was as
follows:
In recognition of some of the current impacts from a challenging and
changing workplace environment, all full time and fixed term correctional
services bargaining unit employees shall be granted thirty-six hours (36)
of compensating leave, pro-rata for part time effective January 1, 2016,
and on January 1, 2017. Compensating leave that is not used within a
calendar year shall be treated in accordance with article COR 8.6 or
article COR15.5, as applicable.
[4] The January 1, 2015 to December 31, 2017 collective agreement continued to
remain in effect until the parties reached an agreement on a renewal collective
agreement in April 2019.
- 3 -
[5] The essence of the grievance is that it is asserted that for the 2018 calendar
year, Appendix COR33 should have continued to be applicable; such that, the
Employer should have been obligated to provide the relevant employees 36
hours of “compensating leave” with respect to that year.
[6] While I fully appreciate the underlying perspective associated with the position
asserted by the Union, it is my determination that the grievance must be
dismissed for failing to disclose a violation of the collective agreement.
[7] As expressly stipulated at Article 22.14.6, an arbitrator appointed under the
collective agreement does not have the “jurisdiction to alter, change, amend or
enlarge any provision” of the collective agreement. Related to this point, an
arbitrator’s task is to interpret and apply the specific agreement of the parties, in
accordance with the wording set out in the collective agreement. In the case at
hand, Appendix COR33 only sets out an obligation upon the Employer to provide
“compensating leave” effective January 1, 2016 and on January 1, 2017. There
is no requirement to provide “compensating leave” as of January 1, 2018; nor is
the nature of the entitlement to “compensating leave” set out in a more general
fashion such as “each calendar year” or “as of January 1 each year”.
[8] In light of the above, the grievance is, hereby, dismissed.
Dated at Toronto, Ontario this 25th day of September, 2019.
“Brian P. Sheehan”
Brian P. Sheehan, Arbitrator