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HomeMy WebLinkAbout2019-1746.Eckert.24-08-06 Decision Crown Employees Grievance Settlement Board Suite 600 180 Dundas St. West Toronto, Ontario M5G 1Z8 Tel. (416) 326-1388 Commission de règlement des griefs des employés de la Couronne Bureau 600 180, rue Dundas Ouest Toronto (Ontario) M5G 1Z8 Tél. : (416) 326-1388 GSB# 2019-1746 UNION# 2019-0584-0003 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN Ontario Public Service Employees Union (Eckert) Union - and - The Crown in Right of Ontario (Ontario Clean Water Agency) Employer BEFORE Tatiana Wacyk Arbitrator FOR THE UNION Angella Zhu & Sarah Khan Ontario Public Service Employees Union Grievance Officer FOR THE EMPLOYER Jordanna Lewis Treasury Board Secretariat Labour Practice Group Counsel HEARING SUBMISSIONS January 18, 2023 April 3, May 10, July 17, & August 1, 2024 - 2 - Decision [1] This is a group grievance dated August 10, 2019. It initially involved five grievors but only four remain. Jim Lake is no longer involved and references to him can be disregarded. The Grievance states: Group grieve the employer failed to ask/offer if they would be ORO for Lorne Park water treatment (as previously where before reclassification [sic] ) under Reg 128/04 Sec 23.1 violated the collective agreement but not liminted [sic] to Article(s) 2- Management rights, 3- No Discrimination/.Employment equity, Section 10 (1) Ontario Human Rights Code (Age) and any other articles, laws, legislation that apply. A lower level license being asked/offered from July 04-07, 09-16, 19-25, 30, Aug 06 and 09. Settlement desired Full redress including Be [sic] awarded all pay for ORO and On-Call, Any other remedy that in the opinion of the arbitrator will make me whole [2] This decision deals with the Employer’s preliminary motion that, in response to my Order of December 2, 2002, to provide particulars, the Union has pled insufficient and irrelevant particulars. The Employer submits that as a consequence, the entire grievance ought to be dismissed for failure to make out a prima facie case, and for lack of jurisdiction. [3] In the alternative, the Employer also sought an order striking paragraphs 13 - 18 and paragraphs 20 - 26 of the particulars as insufficient and irrelevant and/or expansion of scope, and requests an express direction that no evidence related to any particulars struck is to be read. In light of my ultimate determination of this matter, I have not set out those arguments. [4] The Employer relied on the following authorities: OPSEU (Gates et. al.) and Ministry of Health and Long-Term Care (January 22, 2007), GSB No 2005-3003 et al, (Dissanayake); OPSEU (Singh) and Ministry of Community Safety and Correctional Services (June 27, 2005), GSB No 2001-1070 (Abramsky); OPSEU (Jackson) and Ministry of Children, Community and Social Services (March 17,2021) GSB No 2019-1995 (Banks); OPSEU (Morsi) and Ministry of Finance (August 27, 2008), GSB No. 2006-2863 et. al. (Devins); OPSEU (Botosh) and Ministry of the Attorney General (February 20, 2018), GSB No. 2014-1088 et. al., - 3 - (Abramsky); OPSEU (Jones et. al.) and Ministry of Labour (April 13, 2010), GSB No. 2006-1204 (Abramsky) OPSEU (Sparkes) and Ministry of the Solicitor General (November 8, 2019), GSB No.2012-3928 (Misra); OPSEU (Group Grievance, Klonowski et al.) and OPSEU (Schnoflak) and the Ministry of the Solicitor General, GSB (October 30, 2019) No. 2017-3409 (Petryshen). [5] The Union relied on the following authorities: Toronto District School Board v. C.U.P.E., Local 4400, 2002 CarswellOnt 4762, [2002] O.L.A.A. No. 992; Ontario Public Service Employees Union (Marz) v. The Crown in Right of Ontario (Ministry of Community Safety and Correctional Services) (Devins) (June 21, 2017); Ontario Public Service Employees Union (Hall) v. The Crown in Right of Ontario (Liquor Control Board of Ontario) (Devins)(March 14, 2013); Re Blouin Drywall Contractors Ltd. and United Brotherhood of Carpenters and Joiners of America, Local 2486 (1975), 8 O.R. (2d) 103; St. Lawrence Lodge, Brockville v. Canadian Union Of Public Employees, Local 2107, 2013 CanLII 75618 (ON LA); Ontario Public Service Employees Union (Botosh) v Ontario (Attorney General), 2018 CanLII 14305 (ON GSB); Re Firestone Steel Products Of Canada and United Automobile Workers, Local 27, 1975 CanLII 2068 (ON LA);Association of Management, Administrative and Professional Crown Employees of Ontario v. Ontario (Ministry of the Attorney General), 2024 ONSC 1555 (CanLII); Parry Sound (District) Social Services Administration Board v. O.P.S.E.U., Local 324, 2003 SCC 42 (CanLII), [2003] 2 SCR 157and, Moore v. British Columbia (Education), 2012 SCC 61 [2012] 3 SCR 360. PARTICULARS: [6] The Union relied on the following particulars: 1. This is a group grievance comprised of five (5) Grievors. [as indicated above, now four Grievors] At the time of the grievance all of the Grievors held the position of Water and Waste Technicians 40402P. All Grievors have the knowledge, experience and licenses in Water Treatment. The Grievors have an excellent and long-standing employment history. 2. [details regarding Mr. Lake’s employment deleted] 3. Peter Degan date of hire was February 1990. He holds a level 4 license in Water Treatment, and a level 4 license in Water Distribution and Supply, and Water Quality Analyst. He is currently employed in South Peel (Transmission). - 4 - 4. Chris Eckert date of hire was August 2007. He holds a level 3 license in Water Treatment, and a level 3 license in Water Distribution and Supply. He is currently employed in South Peel (Transmission). 5. Shanti Karmacharya date of hire is July 2012. She holds a level 4 license in Water Treatment, a level 4 license in Water Distribution and Supply, and Water Quality Analyst. She is currently employed in South Peel (Transmission). 6. Daniel Baboi, date of hire is September 2015. He holds a level 4 license in Water Treatment, a level 1 in water Distribution [sic] and Supply, Water Quality Analyst, OIT WWT and WWC. He resigned from his position in September 2020. 7. All [four] Grievors are in good standing with the OWWCO and the MOECC. 8. The Grievance arises from the Employer’s failure to ask/offer the Grievors the ORO role for Lorne Park water treatment, but rather placing a lower level licensee into the role on the following dates: July 4-7, 9-16, 19-25, 30 and August 6-9, 2019. Circumstances Giving Rise to the Grievance 9. ORO stands for Overall Responsible Operator as defined in the Safe Drinking Water Act. ORO has overall operational responsibility for the system. To be an ORO, the operator must hold a certificate equal to or higher than the class of the subsystem. 10. The ORO is not required to be on site. ORO must be available and able to act in the event of an operational emergency and can be an ORO for more than one subsystem at the same time, under Regulation 128/04 of the SDA. 11. All the above Grievors were able and willing to perform the ORO duties as required under Safe Drinking Water Act. However, the Employer selected a lower licensed operator as ORO for the Lorne Park Water Treatment Plant, on the following dates: July 4-7, 9-16, 19-25 and August 6-9, 2019. This is contrary to Regulation 128/04 of the SDA, which states that to be an ORO, the operator must hold a certificate equal to or higher than the class of the subsystem. - 5 - 12. The lower licensed operator appointed as ORO on the above-noted dates was Mr. Numair Uppal. He works at the Lorne Park Water Treatment Plant as a foreman/lead hand operations. 13. Since the date of filing the Grievance, the Employer has not appointed Mr. Uppal as the ORO for Lorne Park Water Treatment Plant. ORO Compensation 14. The employer has required members to accept the ORO designation and be on call, pursuant to Article UN 9 and Article UN 11. 15. The SDA requires the response to be “immediate” therefore the compensation should be reflected by UN Article 10 – Stand by time. 16. There is an existing Blended Rate Agreement, which includes an increase on the on-call rate. The Agreement outlines that when employees are required to be available to respond to calls after normal working hours, employees will be paid $2.00 for each hour they are assigned the duty. 17. Under the Agreement, the Call Back provision of the collective agreement (UN 9) still applies. Under this article, a regular (classified) employee will be paid a minimum of four (4) hours pay at one and one- half (1 1/2) times their basic hourly rate if it has been determined that they were “called back” to the workplace. 18. It is the Grievors [sic] position that the members did not vote or have any say with respect to this agreement, and that the ORO compensation should follow the provisions of the Collective Agreement. Bad Faith Discriminatory Conduct 19. It is the Grievor’s [sic] position that the Employer is engaging in bad faith conduct and favoritism when selecting which members are appointed the ORO role. The Employer has indicated to the Grievor’s [sic] that all ORO appointments would comply with Regulation 126-04 of the Safe Drinking Water Act, but has failed to do so. 20. The members take the position that their age is one factor in deterring the Employer from including them in the selection process, as younger members with lower level licenses are often selected. - 6 - 21. Prior to the filing of the grievance, Chris Eckert, addressed this issue with Management during in person discussions. He spoke with Sheldon Belbin, the Operations Manager; Lorenzo Marsiglia the Water Systems Manager; and Sam Berton. The Grievor was told that management has the right to appoint any member as ORO. 22. The Employer’s conduct and pattern of exercising favoritism has continued after the filing of this Grievance. On December 21, 2020 at 10:55am Alton Williams, the Senior Transmission Operations Manager of the Southpeel [sic] Water Facilities announce that Greg Barber will be cover the Transmission system as the ORO from December 20, 2020 to January 3, 2021. 23. Greg Barber is the Safety, Process and Compliance Manager. He holds a level 3 license in Water Distribution. This is a lower level license than the Grievors. 24. On January 4, 2021 at 9:59am Peter Degan contacted Alton Williams via email to seek information as to why he was not selected during this period when he is available and able to act as ORO during this time. Mr. Williams had responded by stating that it was a failing on his part, and that he had intended to reach out but did not as time had passed. 25. The Grievor’s [sic] have filed numerous grievances pertaining to the ORO position, some of which have reached settlement. The Grievors hold the position that the Employer had violated settlements granting them the ORO role, had the employer complied with Section 22 and 23 of Regulation 128/04 of the Safe Drinking Water Act. 26. The Union raises these prior settlements, not to rely on as a precedent, but rather to indicate the longstanding history of the ORO appointment dating back to October 2012. 27. The Grievors filed a grievance on August 10, 2019. [7] Sections 22 and 23 of Regulation 128/4, passed pursuant to the Safe Drinking Water Act, 2002, set out the responsibilities for the overall subsystem. Those provisions state: Ontario Regulation 128/04, CERTIFICATION OF DRINKING WATER SYSTEM OPERATORS AND WATER QUALITY ANALYSTS - 7 - OPERATING STANDARDS FOR MUNICIPAL RESIDENTIAL SUBSYSTEMS AND LIMITED SUBSYSTEMS Owner or operating authority responsibility 22. The owner or operating authority of a subsystem shall ensure that every operator employed in the subsystem holds: (a) a certificate applicable to that type of subsystem; or (b) a certificate applicable to that subsystem, in the case of an operator who holds a conditional certificate issued or renewed under section 10. O. Reg. 128/04, s.22. Overall responsible operator 23 (1) The owner or operating authority of a municipal residential subsystem shall designate as overall responsible operator of the subsystem an operator who holds a certificate for that type of subsystem and that is of the same class or higher than the class of that subsystem. (For example, the overall responsible operator of a Class III water treatment subsystem must be an operator who holds a Class III or Class IV water treatment subsystem operator’s certificate). O.Reg 128/04, a.23(1) (2) The owner or operating authority of a limited subsystem shall designate as overall responsible operator of the subsystem an operator who holds a limited subsystem operator’s certificate for that type of subsystem. O. Reg. 128/04, s. 23 (2). (3) Revoked O. Reg. 819/21, s. 1(1) (4) If the overall responsible operator designated under subsection (1) or (2) is absent or unable to act, the owner or operating authority or, if the owner or operating authority authorizes it, the overall responsible operator may designate an operator who holds a certificate that is applicable to that type of subsystem and, if applicable, that is not more than one class lower than the class of the subsystem to act in the place of the overall responsible operator. (For example, if the overall responsible operator is - 8 - absent or unable to act, responsibility for the overall operation of a Class IV distribution subsystem may be delegated to an operator who holds a Class III distribution subsystem operator’s certificate.) O. Reg. 128/04,s. 23 (4). (5) Subsection (4) does not permit delegating an overall responsible operator’s duties, a) to an operator who holds an operator- in-training’s certificate; or b) REVOKED: O. Reg. 819/21, s. 1 (2). [8] This was a hard fought motion, with lengthy submissions, dealing with the requirement to provide particulars, including whether this includes a duty to also include evidence, and whether specific particulars are an expansion of the grievance, irrelevant or prejudicial. [9] However, I have not set those submissions out, as by the end of the exchange of submissions, it became apparent the primary and determinative issue was whether the particulars constituted a prima facie case, and/or whether the Grievance should be dismissed for want of jurisdiction to hear it. [10] Accordingly, I now turn to the issue of whether the Union’s particulars establish a prima facie case to be met, and whether I have jurisdiction to hear this matter. EMPLOYER: Jurisdiction [11] The Employer submits there is no dispute the Employer has the discretion to appoint the Overall Responsible Operator (“ORO”) in accordance with the Safe Water Drinking Act, 2002 – ON Reg 128/04 – Certification of Drinking Water System Operators and Water Quality Analysts. [12] In that regard, the Employer points out that subsection 23(4) provides that if the ORO is absent or unable to act, the owner or operating authority may designate an operator who holds a certificate that is applicable to that type of subsystem and, if applicable, that is not more than one class lower than the class of the subsystem, to act in the place of the overall responsible operator. [13] Further, that provision expressly sets out the example that, in the event of the ORO being absent or unable to act, responsibility for the overall operation of a - 9 - Class IV distribution subsystem may be delegated to an operator who holds a Class III distribution subsystem operator’s certificate. [14] The Employer submitted that neither the particulars nor the grievance disclose any restriction on the Employer’s authority to designate the ORO. [15] The Employer pointed out the designation is not addressed by the OPSEU Collective Agreement, and there is no express or implicit direction in Regulation 128/04 of the Safe Drinking Water Act for the appointment of the ORO that would bring it under my jurisdiction. [16] Accordingly, the Employer submitted the particulars as a whole are insufficient as they are devoid of details or reference to any entitlement to the ORO designation, or any violation of the Collective Agreement other than Article 2, the Management Rights Clause, which states: 2.1 For the purpose of this Central Collective Agreement and any other Collective Agreement to which the parties are subject, the right and authority to manage the business and direct the workforce, including the right to hire and lay-off, appoint, assign and direct employees; evaluate and classify positions; discipline, dismiss or suspend employees for just cause; determine organization, staffing levels, work methods, the location of the workplace, the kinds and locations of equipment, the merit system, training and development and appraisal; and make reasonable rules and regulations; shall be vested exclusively in the Employer. It is agreed that these rights are subject only to the provisions of this Central Collective Agreement and any other Collective Agreement to which the parties are subject. [17] Further, the Employer pointed out the Board has been clear it has no free-standing jurisdiction to review the exercise of management rights pursuant to Article 2 of the Collective Agreement. Rather, the Board may intervene only when the Employer’s exercise of management rights denies or abridges employee rights dealt with either explicitly or implicitly under the Collective Agreement. (See Singh, Jackson, Sparkes, supra). Age Discrimination [18] The Employer submitted that the allegation of Age Discrimination in paragraph 20 of the Particulars is insufficient and cannot support a breach of Article 2. - 10 - [19] Specifically, the Employer points out the assertion that younger members were selected for the ORO role provides no details regarding dates, time, or ages of the Grievors or those selected. Nor is there any indication the Employer was aware of the Grievors' ages, or any reference to conduct or comments which suggest, or from which an inference can be drawn, that the Employer discriminated against the Grievors on the basis of age. [20] The Employer points out that the Board was clear in Botosh, supra, that a reference to Article 3 of the Collective Agreement and the Ontario Human Rights Code is not enough to allow new issues to be inserted into a grievance: 41 Although the three grievances allege a violation of Article 3 and the Ontario Human Rights Code, those claims relate to the decision to deny her request for a further leave of absence without pay, and to the Employer's determination that the Grievor abandoned her position. The reference to Article 3 and the Ontario Human Rights Code cannot, solely by its inclusion in the grievance, enable the Grievor to assert new issues into the grievance. There is no evidence that any of the accommodation issues identified in the particulars was raised during the grievance process, or were raised prior to the arbitration and the Union's provision of particulars. [21] The Employer points out the Grievors bear the onus of pleading a prima facie case. While the Board has been clear that inferences regarding discrimination must be supported by some underlying facts, the Employer submits here there are none. [22] Rather, the Employer maintains these Particulars are simply bald allegations with no details or information which, even if proven, would be sufficient to draw an inference that age was a factor in appointing the ORO. [23] The Employer also noted that Lorne Park is a Water Treatment facility in South Peel, and as the Union particulars set out at paragraphs 2 - 6, the Grievors are employed in South Peel Transmission not South Peel Water Treatment. [24] Specifically, the South Peel water system consists of 3 distinct subsystems: Two water treatment facilities: AP Kennedy and Lorne Park, that produce potable water; and one separate Transmission system that spans the geography of the Region of Peel (Mississauga, Brampton, Caledon) that transports potable water produced at APK and LP throughout the municipality. - 11 - [25] Dean Baker and Gary Langenfeld were the designated OROs for Lorne Park, in July and August 2019. Numair Uppal, who held a Class III license at the time, was utilized as back up, if needed. [26] The Employer points out that three of the remaining four grievors do not operate or work within the Lorne Park facility. Rather, Peter Degan, Chris Eckert and Shanti Karmacharya occupied a separate Transmission operational control room stationed within the Lorne Park offices, and do not operate and at the time had not operated, the Lorne Park subsystem. [27] The Employer submits there is absolutely nothing improper about the Employer selecting Mr. Uppal, who had a Class III License, to be the ORO for the Lorne Park Class 4 Water Treatment Subsystem, in South Peel. [28] It submits the Grievor’s feelings of favoritism in this process, do not establish age discrimination when there are no particulars that: support the Employer even knew the Grievors' ages; or that their assumed ages factored into any statements or conversations with the Employer; or where the Grievors were provided with explanations based on age. [29] The Employer further submits that any allegations that post-date the Grievance regarding other employees are not relevant regarding whether the Grievors themselves suffered discrimination on the basis of age. [30] In this instance, the Employer submitted its position is not simply that the particulars are insufficient . Rather it maintains they are insufficient because they are irrelevant and/or do not establish a prima facie breach of the collective agreement or the Human Rights Code. [31] Accordingly, the Employer submits the Grievors have not provided valid particulars that the Employer's decision under the Safe Drinking Water Act was prima facie discrimination on the basis of age for any of the Grievors. [32] The Employer also relied on the Board’s decision in Schnoflak, supra in which Arbitrator Petryshen considered whether he had jurisdiction to determine a complaint that the Grievor had been denied an acting management position because of the Employer’s failure to accommodate him on the basis of his disability. [33] Arbitrator Petryshen held, at paragraph 9, that as set out in article 22.1 of the OPSEU Agreement, his jurisdiction was limited to “…any complaints or differences between the parties arising from the interpretation, application, administration or - 12 - alleged contravention of this Agreement, including any question as to whether a matter is arbitrable.” [34] As there is no provision in the OPSEU Agreement which gives an employee covered by that Agreement a right to apply for a management position, the complaint about discriminatory treatment before him was not in relation to a matter covered by the OPSEU Agreement, and he did not have a general jurisdiction to deal with allegations of discrimination in employment that are beyond the scope of the OPSEU Agreement. [35] The Employer conceded that while grievances should not be won or lost on a technicality, but pointed out the Board has been clear arbitrators have no jurisdiction to expand grievances or determine matters not properly before them. The starting point for making that determination is the written grievance, and whether a matter arises explicitly or implicitly from the Collective Agreement. (Jones, supra at paragraphs 14 and 19). Union [36] The Union responded that in the absence of the permanently designated ORO, the Employer’s failure to offer the position to the Grievors on July 4-7, July 9-16, July 30 and August 6-9 in 2019 “discriminated against the members on the basis of age”. [I note the Union has removed the reference to July 19-25, 2019 which appeared in paragraphs 8 and 11 of its particulars – without comment. I also note that while July 30 is referenced in paragraph 8, it is not referenced in paragraph 11. It is not clear if any significance is to be attributed to these distinctions]. [37] The Union reiterates the role was offered to someone with less experience and qualifications than the Grievors and states, for the first time, that this was “against the Regulation 128/4”. [38] The Union took issue with the Employer’s assertion that age was not a factor in the decision to offer the ORO position to an employee with a Class III Water Treatment certificate, and that it was unaware of the Grievor’s ages. [39] The Union pointed out the Grievors are long service employees at the Ontario Clean Water Agency: Peter Degan was hired in 1990; Chris Eckert was hired in 2007; Shanti Karmacharya was hired in 2012; Daniel Baboi was hired in 2015. - 13 - [40] The Union submitted that as the Employer is aware of the Grievors’ years of service, it can easily infer their age. [41] The Union also indicated some of the Grievors are considerably older in age than Mr. Uppal who was offered the ORO position. [42] The Union submits the Employer had no explanation as to why the ORO position was offered to an employee with Class III certificate before offering it to other members with Class IV license in Water Treatment. [43] Accordingly, the Union reiterated that it is the Grievors’ position that age was a factor in deterring the Employer from including them in the selection process, and that this age discrimination is due to favouritism. [44] The Union also sets out section 5(1) of the Ontario Human Rights Code which prohibits discrimination on the basis of age, and cites the Supreme Court’s case in Parry Sound (District) Social Services Administration Board and OPSEU (2003), DLR (4th) 257 setting out my authority to interpret and apply human rights in the context of grievance arbitration. [45] The Union submits it has made out the prima facie case of discrimination on the basis for age. It points out the test for a prima facie case is laid out in Moore v. British Columbia (Education), 2012 SCC 61 [2012] 3 SCR 360, as cited in the Superior Court of Justice decision, Association of Management Administrative and Professional Crown Employees of Ontario and Ontario, supra: [39]…A complainant must show that: (i) they have a characteristic protected from discrimination; (ii) they experienced an adverse impact on account of the challenged norm; and (iii) the protected characteristic was a factor in the adverse impact: Moore, at para 33. Once a prima facie case has been established, the burden shifts to the respondent to justify the conduct or practice. If it cannot be justified, discrimination will be found to have occurred. Moore, at para 33. … [46] The Union also submits that the following excerpt from an Ontario Government document titled: Overall Responsible Operator vs. Operator-in-Charge clarifies section 23(1) and 23 (4) of O Regulation 128-4: If the system has already designated an overall responsible operator under ss.23(1) at the required level who is present and able to act as ORO, the system may not deem an operator at a lower level as ORO under ss.23(4). If the ministry finds that a system is designating a lower level operator as an ORO under ss. 23(4) when the ORO designated - 14 - under ss. 23(1) with the required level of certificate(s) is present and able to act as ORO, the ministry will deem this to be non-compliant event. [emphasis added] [I note, however, the line just prior to the above, states: “An operator with certificate one class lower than the class of the subsystem may assume this responsibility for up to 150 days a year as a back-up when the ORO with the appropriate qualifications is absent or unable to act]. [47] The Union also indicated the Employer continued to violate O. Reg 128-4 even after the Grievance was filed. [48] The Union further notes that the Employer advised the Union that they can offer the position to anyone, and that this is concerning because qualified workers with experience are arbitrarily overlooked for the ORO position. [49] The Union submitted that it has clearly outlined the case in sufficient detail, and the Employer has been made aware of the case they must meet. Employer Reply [50] The Employer submits It is prejudicial to allow the Union to bring up facts and evidence which further expands the scope of the complaint at this stage. [51] The Employer takes issue with the allegation that the Employer "inferred" the Grievors' age based on their years of service and that this establishes prima facie age discrimination. [52] Rather, the Employer maintains the Union has not established that the Ontario Human Code is even engaged in this instance - particularly if the Union's position is that the Employer, prior to making a decision on each date in question, inferred the Grievors' ages based on their years of service, then reached out to Mr. Uppal over the four Grievors. [53] Further, the Employer submits that just because some of the Grievors may, in fact, be "considerably older" than Mr. Uppal, based on an alleged - not particularized - inference drawn from their years of service, this certainly does not establish prima facie discrimination. - 15 - ANALYSIS: Jurisdiction [54] While the Employer submitted there is no dispute that the Employer has the discretion to appoint the ORO in accordance with the Safe Water Drinking Act, 2002 - ON Reg 128/04 - Certification of Drinking Water System Operators and Water Quality Analysts, that does not appear to be the case. [55] Rather, paragraph 11 of the Particulars states that the appointments of Mr. Uppal was “contrary to Regulation 128/04 of the SDA, which states that to be an ORO, the operator must hold a certificate equal to or higher than the class of the subsystem.” [56] Further, in its submissions, the Union maintains that by offering the ORO role to someone with a Class 3 certificate, before offering it to members with a Class IV license in Water Treatment was “against the Regulation 128/4”. It also states the Employer “violated O. Reg 128-4 and continued to do so even after the Grievance was filed.” [57] While the Union also appears to rely on the excerpt set out at paragraph 46 as clarifying section 23(1) and 23 (4) of the Regulation, the highlighted portion which states “If the system has already designated an overall responsible operator under ss.23(1) at the required level who is present and able to act as ORO” makes clear, this “clarification” is regarding a circumstance not at issue in this instance. On the basis of the Union’s own submissions the dispute arises “in the absence of the permanently designated ORO”. [58] Further, subsection 23(4) is clear that if the ORO is absent or unable to act, responsibility for the overall operation of a Class IV distribution subsystem may be delegated to an operator who holds a Class III distribution subsystem operator’s certificate – as has occurred here when Mr. Uppal, who had a Class III license in Water Treatment, was delegated the ORO responsibility. [59] In any event, as pointed out by the Employer, there is no suggestion that the designation of an ORO is addressed by the OPSEU Collective Agreement. Nor does it appear there is any express or implicit direction in Regulation 128/04 of the Safe Drinking Water Act for the appointment of the ORO that would bring it under my jurisdiction. [60] Nor do the particulars of the Grievance suggest any restriction in the Safe Drinking Water Act on the Employer’s authority to designate the ORO. Indeed, neither the - 16 - Grievance nor the Particulars even refer to any alleged violation of the Regulation until the Union’s response to the Employer’s motion. [61] Further, the Employer is correct that the Board has been clear it has no free- standing jurisdiction to review the exercise of management rights pursuant to Article 2 of the Collective Agreement, and that the Board may intervene only when the Employer’s exercise of management rights denies or abridges employee rights dealt with either explicitly or implicitly under the Collective Agreement. [62] The Union must be able to point to a specific provision of the Collective Agreement, other than the management rights clause (Article 2), for this Board to have jurisdiction. [63] The Union has not done so. Age Discrimination [64] While a violation of the Human Rights Code could provide the jurisdiction to review management actions under Article 2, that is not the case here. [65] Rather, the facts in this instance are similar to those in Schnoflak, supra. [66] As Arbitrator Petryshen pointed out at paragraph 9, Article 22.1 of the OPSEU Agreement, limits our jurisdiction to “…any complaints or differences between the parties arising from the interpretation, application, administration or alleged contravention of this Agreement, including any question as to whether a matter is arbitrable.” [67] As there is no provision in the OPSEU Agreement which gives an employee covered by that Agreement a right to be appointed ORO, the complaint of discriminatory treatment in this instance, as in the case before Arbitrator Petryshen, is not in relation to a matter covered by the OPSEU Agreement. Nor do I have a general jurisdiction to deal with allegations of discrimination in employment that are beyond the scope of the OPSEU Agreement. [68] Accordingly, I find I do not have jurisdiction to deal with this Grievance. [69] I might add however, that in any event, the Particulars regarding the allegation of age discrimination contain only the bald assertion in paragraph 20 that age is one factor in deterring the Employer from including the Grievors in the selection process. - 17 - [70] As pointed out by the Employer, the Particulars provide no details or information which, even if proven, would be sufficient to draw an inference that age was a factor in appointing the ORO. [71] In Klonowski et al, supra, VC Fisher dismissed a grievance alleging discriminatory treatment for lack of particulars. In doing so, he stated at the third full paragraph on page 3: Moreover claims of discrimination should not be thrown around with the hope that the evidence will come into place as the case proceeds, rather the party making such an allegation should have its basic factual research in place at least by the time the case is scheduled for a hearing. [72] I would add that a party making a claim of discriminatory treatment ought to have its basic factual research in place by the time it provides particulars regarding those allegations. [73] Further, as submitted by the Employer, the Board has indicated it is not sufficient to simply allege discrimination without the usual requisite particulars such as what happened, who was involved, and where and when did the alleged event occur. (Botosh, supra) [74] Accordingly, even if I had jurisdiction to deal with this matter, the Grievance would be subject to dismissal for failure to make out a prima facie case. DISPOSITION: [75] For the reasons set out above, this Grievance is dismissed for want of jurisdiction and failure to make out a prima facie case. Dated at Toronto, Ontario this 6th day of August 2024. “Tatiana Wacyk” Tatiana Wacyk, Arbitrator