HomeMy WebLinkAbout2010-1510.Cooray.12-04-11 Decision
Crown Employees
rieva
nce Settlement
oard
1Z8
l. (416) 326-1388
x (416) 326-1396
t des griefs
es employés de la
t
Z8
l. : (416) 326-1388
léc. : (416) 326-1396
UNION#2009-0520-0038
IN THE MATTER OF AN ARBITRATION
Under
THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT
Before
THE GRIEVANCE SETTLEMENT BOARD
ETWEEN
G
B
Suite 600
180 Dundas St. West
Toronto, Ontario M5G
Te
Commission de
règlemen
d
Couronne
Bureau 600
180, rue Dundas Oues
Toronto (Ontario) M5G 1
Té
Té
Fa
GSB#2010-1510
B
Ontario Public Sployees Union
(Cooray) Union
- and -
(Ministry of Attorney General) Employer
ervice Em
The Crown in Right of Ontario
BEFORE Bram Herlich Vice-Chair
FOR THE UNION
ice Employees Union
FOR THE EMPLOYER
Seung Chi
Ontario Public Serv
Grievance Officer
Services
ractice Group
Susan Munn
Ministry of Government
Labour P
Counsel
HEARING April 3, 2012.
Decision
over certain periods of time than have some of
his co-workers, in particular younger females.
art-Time (“FPT”) position as a Court Registrar. The grievance was filed on October
2, 2009.
in an
mes
in Appendix A to the union’s particulars have been omitted and
replaced with initials.
seek to file any further particulars) and the
case ought to be dismissed on that basis alone.
he
union has failed to make out a prima facie case of any violation of the collective agreement.
s.
In that context, this decision, apart from resolving the instant matter, is without any legal
[1] The grievor in this case alleges that he has been subject to improper
discrimination on the basis of age and/or sex. He complains that he has been scheduled to
work fewer hours, particularly overtime hours,
[2] The grievor has, since at least September 2007, been employed in a 1500 hour
Flexible P
[3] A prior mediation-arbitration session was held in this matter. That resulted
order of this Board directing the union to file particulars of its case. The union has filed
particulars, a copy of which is attached to this decision. In the interests of privacy the na
of the employees listed
[4] The employer asserts that the union has failed to comply with the Board order
directing particulars in that, quite apart from their apparently late submission, the particulars
are, in any event, insufficient (the union did not
[5] Further, in what might be considered a reformulation of its first position, the
employer asserts that, even if all of the facts alleged in the particulars are true and provable, t
[6] The instant proceedings were (on consent of the parties) conducted by way of the
mediation-arbitration process contemplated under the collective agreement. This is a process
with which the parties are familiar – in general terms it sacrifices some of the formalities of a
more conventional arbitration proceeding in favour of an expedited resolution of grievance
- 2 -
precedent for future cases. Further, the parties agreed that I should issue this decision without
the need to provide full or elaborate reasons in my award.
[7] I have considered the parties materials and submissions and have concluded that
the grievance must be dismissed – even accepting all the particulars filed by the union to be
true and provable, I am persuaded that there simply is no case for the employer to meet.
[8] The union's case rests on its particulars and, more specifically on the “data" it has
provided in Appendix A to those particulars.
[9] There are, as may often be the case with such “data", a multitude of ways to parse
the information contained therein.
[10] First and perhaps most significant of all, is the fact that the grievor himself was
“out of the mix" of FPT Registrars for large portions of the period of time for which the data is
provided: in 2008 he spent some 4 months; in 2009 some 3 months; and in 2010 virtually the
entire relevant period (i.e. up to June 2010) in assignments other than his usual Registrar
position. It is thus difficult to compare his apples with everyone else's oranges. Certainly,
there is simply nothing to assess for 2010. But even if I were to accept his 2008 and 2009
hours on some kind of pro-rated basis, no clear picture emerges to support his allegation of
discriminatory treatment on the basis of sex and age.
[11] There are also clearly other distinctions at play apart from sex and age. For
example, it is true that three identified employees who are each female and at the younger end
of the age spectrum of employees, may be seen to have generally been assigned larger absolute
numbers of overtime hours. But these three are in 1000 hour FPT positions, unlike all of the
others, including the grievor, who are in 1500 hour FPT positions. There is nothing in the
materials that would lead me to conclude, or even suspect, that factors of age or sex figured in
the impugned assignments. Indeed, it seems far more likely that the simple fact of the
- 3 -
differential status of these employees, contributing to their availability, was of far greater
significance.
[12] But there is a more telling fact, pleaded by the union, which seriously undermines
any claim of discriminatory treatment on the basis of sex and age. The data discloses an
individual (Mr. BN) of similar age and identical sex to the grievor – the former consistently
registers at or very near the top in respect of the number of overtime hours assigned to a 1500
hour FPT employee. That fact alone is difficult to square with any claim that the employer
discriminates on the basis of sex and age in its assignments.
[13] There are undoubtedly many other ways to analyse the data provided. I need not
canvass them any further.
[14] It is sufficient for my purpose to conclude that the data simply does not lead
inexorably to, indeed does not even clearly militate in favour of, any conclusion that the factors
of age and sex have been considered to the detriment of males and older employees generally,
or the grievor in particular, in the assignment of work. Indeed, it is not even clear to me that
such conclusion can be suggested by the data.
[15] The grievance is dismissed.
Dated at Toronto this 11th day of April 2012.
Bram Herlich, Vice-Chair