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Home My WebLink About2003-1520.Gillis et al.11-11-08 DecisionCommission de Crown Employees Grievance Settlement UqJOHPHQt des griefs Board dHVHPSOR\pVGHOD Couronne Suite 600 Bureau 600 180 Dundas St. West180, rue Dundas Ouest Toronto, Ontario M5G 1Z8 Toronto (Ontario) M5G 1Z8 Tel. (416) 326-1388 7pl. : (416) 326-1388 x (416) 326-1396 7pOpF Fa GSB#2003-1520 UNION#2003-0248-0070 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN Ontario Public Service Employees Union (Gillis e t al) Union - and - The Crown in Right of Ontario (Ministry of Community Safety and Correctional Services) Employer BEFOREVice-Chair Randi H. Abramsky FOR THE UNION Ed Holmes Ryder Wright Blair & Holmes LLP Barristers and Solicitors FOR THE EMPLOYER Peter Dailleboust Ministry of Government Services Labour Practice Group Counsel HEARING November 1, 2011. - 2 - Decision [1]At issue is whether the GSB has jurisdiction to hear a dispute between the parties concerning the entitlement of the grievor, Michael Derkach, to indemnity for his legal fees which he incurred in connection with a criminal proceeding related to his work as a Correctional Officer. The Employer has moved to dismiss this matter on the basis that the Board lacks jurisdiction to hear this particular dispute. The parties have elected to proceed under Article 22.16 of the collective agreement, and have requested a non-precedential decision. Facts [2]The grievor, Michael Derkach, was a grievor in the proceeding involving OPSEU (Gillis et al.) and Ministry of Community Service and Correctional Services, GSB 2003-1520. That case, initially, involved a number of Correctional Officers involved in an alleged assault against an inmate on October 18, 2002. Some of the Correctional Officers were discharged and others, including Mr. Derkach, had been suspended. [3]In March 2005, Mr. Derkach was advised by his criminal lawyer that it was likely that the criminal charges against him would be withdrawn by the Crown. On March 30, 2005, Mr. Derkach formally requested reimbursement of his legal expenses. On April 25, 2005, that request was denied by Regional Director Marg Welch. Mr. Derkach received notice of that denial on May 26, 2005. Thereafter, in June 2005, the Union, through discussions between the Local President and Ms. Welch, sought reconsideration of that decision, but that was unsuccessful. The criminal charges against Mr. Derkach were withdrawn by the Crown on April 26, 2005. [4]On January 18, 2006, the parties settled a number of the grievances involved in the Gillis matter, but not all. The grievance of Mr. Derkach was one of the ones that was resolved through a Memorandum of Settlement. The Union relies on a provision of this Settlement to assert that WKH%RDUGKDVMXULVGLFWLRQRYHU0U'HUNDFK¶VFODLm for legal indemnity. In pertinent part, the Settlement provides: « - 3 - 6. With respect to the grievor Michael Derkach, the parties agree and acknowledge that Mr. Derkach has requested that the Employer reimburse his legal expenses referable to criminal proceedings arising from the events of October 18, 2002 at the Hamilton West Detention Centre [which resulted in the aforementioned discipline and these settled grievances], and the parties agree that this settlement is no way impacts upon the rights and positions taken by Mr. Derkach or the Employer with respect to that claim for reimbursement of legal expenses. 7. With respect to the grievors [G.T.] and [S.W.], in the event that either grievor request that the Employer reimburse their legal expenses referable to criminal proceedings arising from the events of May 23, 2003 at the Caistorville Golf Club [which resulted in the aforementioned discipline and these settled grievances], the parties agree that this settlement in no way impacts upon the rights and positions taken by those grievors or the Employer with respect to those claims for reimbursement of legal expenses. « 7KHILYHJULHYRUV«0LFKDHO'HUNDFK«DQGWKH8QLRQDJUHHWKDWDOORXWVWDQGLQJ grievances and claims pertaining to this matter (as attached) by those Grievors are hereby withdrawn and that the GSB shall be notified of same. The list of grievances attached as $SSHQGL[³$´UHIHUVWRJULHYDQFHVWKDWare hereby settled (#26 through 49). Those five Grievors and Union further release the Employer from any and all actions, causes of action, claims and demands of every nature and kind directly or indirectly concerning the events that form the subject of any of the grievances and claims in these proceedings, save and except as identified above in paragraphs 6 and 7. 13. The parties further agree that Vice-Chair Abramsky will remain seized with respect to the implementation of the terms of this settlement. [5]On August 8, 2006, a group grievance was filed by five of the grievors involved in the Gillis matter, alleging that Employer violated Article 2, 3, and COR14 of the collective - 4 - agreement. COR14 is the legal indemnity provision, which had been included in the collective agreement in 2005. One of the individuals included in the group was Mr. Derkach. [6]On November 17, 2006, a Stage 2 meeting was held, and on November 28, 2006, the Ministry denied the grievance. Under the collective agreement, the Union then had 15 days to refer the grievance to arbitration. It did not do so. In fact, the grievance has never been referred to the GSB. Nor does the grievance have an OPSEU number. [7]The matter of reimbursement for legal fees was discussed at three med-arb sessions involving the Ministry of Community Safety and Correctional Services and OPSEU, although the dates are not clear. The earliest one might have been in November 2007. The other two were sometime in 2008 and/or 2009. No resolution was obtained. Sometime thereafter, in early 2011, the matter was scheduled for hearing before me, based on an alleged breach of the January 18, 2006 Memorandum of Settlement. Reasons for Decision [8]After having carefully considered the facts, the documentary evidence, the submissions of the parties and the case law provided, I conclXGHWKDWWKH(PSOR\HU¶VPRWLRQWRGLVPLVVPXVW succeed. The GSB has no jurisdiction to decide this matter. The GSB does not have jurisdiction over 0U'HUNDFK¶VFODLPIRUOHJDOLQGHPQLW\ 1. under paragraph 6 of the January 18, 2006 Memorandum of Settlement . [9] A review of the Settlement clearly demonstrates that paragraph 6 was meant to preserve 0U'HUNDFK¶VFODLPIRUOHJDOLQGHPQLW\LQWKHIDFHRIWKHEURDGUHOHDVHQHJRWLDWHGE\WKHSDUWLHV in paragraph 12 of the Settlement. In paragraph 12, Mr. Derkach, like the other grievors, UHOHDVHGWKH(PSOR\HU³IURPDQ\and all actions, causes of action, claims and demands of every nature and kind directly or indirectly concerning the events that form the subject of any of the grievances and claims in these proceedings, save and except as identified above in paragraphs 6 and 7´HPSKDVLVDGGHG 3DUDJUDSK - 5 - legal reimbursement. Paragraph 6 precludes such an argument. It did not create any rights. It simply preserved his claim for legal indemnity which would otherwise have been extinguished by paragraph 12. Paragraph 7 did the same for the two grievors identified there. [10] The subject of legal indemnity for Mr. Derkach was not part of the Gillis et al. grievances. It was a separate PDWWHU±DQGWKHRQO\LPSDFWRISDragraph 6 was to preserve that claim. It did not bring it within the ambit of the Gillis grievances. Consequently, I have no jurisdiction to decide the merits of Mr. DerkacK¶VHQWLWOHPHQWWROHJDOLQGHPQLW\E\YLUWXHRI paragraph 6 of the Memorandum of Settlement. 2.The GSB does not have jurisdiction over the August 8, 2006 grievance. [11] The collective agreement requires a grievance to be referred to the GSB within 15 days of the Stage 2 denial. If that does not occur, the Board has no jurisdiction to extend the time limit for referral.Re OPSEU (Johnston) and Ministry of the Attorney General (2010), GSB No. 2009- 1147 (Dissanayake). In this case, the Stage 2 denial took place on November 28, 2006, so by mid-December 2006, the grievance should have been referred to the Board. That did not happen, and in fact, the grievance was NEVER referred to the GSB. Nor is there an OPSEU number. That is significant because although a late referral may be waived by the Employer, the Employer here had no opportunity to waive it because the grievance was never referred to DUELWUDWLRQ+DGLWEHHQUHIHUUHG±ODWH±WKH(Pployer would have had an opportunity to object. The Union, in my view, cannot fail to refer a grievance and then assert that the Employer waived its right to object. Consequently, the Employer did not waive its objection to the lack of a referral in this matter. Because the grievance was never referred to the Board, the GSB has no jurisdiction to hear this grievance. [12] The fact that the issue of legal fee reimbursement was discussed a number of times during the med-arb sessions between the parties does not give the Board jurisdiction over that issue. Such informal discussions cannot, by itself, create jurisdiction where none exists. To rule otherwise, in my view, might discourage the full and frank discussion of issues, even if not SURSHUO\³EHIRUH´WKH*6% - 6 - [13] Further, my notes from the September 20, 2011 conference call in this matter, which DUJXDEO\PLJKWEHFRQVLGHUHGWKH(PSOR\HU¶VILUVt opportunity to raise the issue of non-referral, indicates that counsel for the Employer did raise the fact that the matter had not been pursued to the GSB, despite the passage of more than four years. He also asserted that the fact that the issue may have been discussed during the med-arb process did not negate the need for the Union to move the process forward. [14] For the reasons expressed above, neither the Memorandum of Settlement nor the August 8, 2006 grievance provides the Board with jurisdiction. >@,QOLJKWRIWKHVHFRQFOXVLRQV,QHHGQRWDGGUHVVWKHSDUWLHV¶RWKHr arguments concerning jurisdiction. th Dated at Toronto this 8 day of November 2011. Randi H. Abramsky, Vice-Chair