HomeMy WebLinkAbout2008-2793.Pilger.09-12-15 Decision
Commission de
Crown Employees
Grievance Settlement
règlement des griefs
Board
des employés de la
Couronne
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IN THE MATTER OF AN ARBITRATION
Under
THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT
Before
THE GRIEVANCE SETTLEMENT BOARD
BETWEEN
Ontario Public Service Employees Union
(Pilger)
Union
- and -
The Crown in Right of Ontario
(Ministry of Community Safety and Correctional Services)
Employer
BEFOREVice-Chair
Randi H. Abramsky
FOR THE UNION
David Wright
Ryder Wright Blair & Holmes LLP
Barristers and Solicitors
FOR THE EMPLOYER
Len Hatzis
Ministry of Government Services
Counsel
HEARING
December 4, 2009.
- 2 -
Decision
[1]There are nine grievances before the Board in this matter, all alleging that the
Ministry has violated the collective agreement by the actions taken against the grievors in
response to an alleged ?pattern of absences.? The particulars provided by the Union
challenge not only the actions taken against the grievors, but the Ministry?s ?policy?
entitled ?Culpable Absenteeism/Suspected Abuse of Sick Leave: Best Practices? as well.
[2]The Employer has raised a preliminary objection to the scope of the issues and
evidence that may be led in this matter. Specifically, it asserts that the Union may not
properly challenge the ?Best Practices? document because it is not a formal ?policy?, rule
or regulation. It is more in the nature of human resources advice. In the alternative, it
argues that its ?Best Practices? document may only be challenged to the extent that it was
applied to the individual grievances and not on a broader basis, because there was no
Union or policy grievance filed in this case.
[3]Following the Employer?s submissions on the legal issues, counsel for the Union
stated that the Union was not, in fact, challenging the ?policy? per se, but only those
aspects of it that were specifically applied to the grievors. A dispute arose, however, on
the scope of the Board?s remedial jurisdiction. It was the Union?s submission that the
Board could order a declaration beyond the individual grievors, while the Employer took
the position that the only declaratory relief possible was a declaration in relation to the
individual grievors.
- 3 -
[4]Having considered the grievances, the particulars, and the other documentary
evidence provided, as well as the arguments of counsel and the case law, it is my view
that the Union?s acknowledgement that it will not be challenging the ?Best Practices?
document as a ?policy? per se and would limit its contentions to what was applied to the
grievors obviates the need for a broader ruling on the Employer?s preliminary motion.
The Union will be limited to those portions of the ?Best Practices? document that are
relevant to the actions taken against the grievors. I find that I need not rule on whether
the Best Practices document is a policy, rule, regulation or simply advice. To the extent
that it is relevant to the actions taken against the grievors, it is relevant evidence and may
be addressed in the hearing.
[5]In regard to the dispute on the scope of the remedy, I find that issue to be premature
at this point. It may not be necessary to rule on that issue, and if it does become an issue,
I will rely on the submissions made on that point during the hearing on the preliminary
matters.
th
Dated at Toronto this 15 day of December 2009.
Randi H. Abramsky, Vice-Chair