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HomeMy WebLinkAbout1986-1387.Sim and Bain.88-08-151387/86, 1388186 IN THR WXl'RR OF AN ARBITRATION Under THE CRORR EKPLOTBES COLLECTIVE BARGAINING ACT Before TM? GRIEVANCE SETTLBUBNT BOARD B#!tween: OPSEU (Pi Sim & D. Bain) Crievors and The Crown in Right of Ont~ario (Ministry of Correctional Services) Employer Before: , P.M. Draper Vice-Chairman J.D. HcManus Member 1.J. Cowan Member For the Grievor: A. Ryder COUIlSel Gowling and -Henderson Barristers and Solicitors For the Employer: T. Anthony Regional Personnel Administrator Ministry of Correctional Services Hearing: February 1, 1988 ,. , DEcIsIQN In April, 1986, the Grievors, Patricia Sim and Douglas bain, filed separate grievances claiming that they had been denied shift premiums in contravention of Article 11 of the collective agreement. During the grievance process'the grievances were settled, terms of settlement were reduced to writing and signed by the Employer, the Union and the grievors, - and the grievances were withdrawn. Subsequently the parties disagreed in their understanding of the terms of settlement and the Grievors filed the grievance5 now before the board in which the claim is made.that the Employer has not complied with those terms. The grievances call for an interpretation of the terms of settlement. , ._. ~.There is a legitimate difference between the parties which they are content to have the Board resolve. Despite that willingness, the desirability of a final and binding settlement and the lack of an obvious alternative means of achieving that objective, our conclusion must be that we cannot be of service to the parties. It has long been established that the source of the Board's jurisdiction is the Crown Employee5 Collective Bargaining Act (The Act). In Baladav, 94178 it was said that our jurisdiction is conferred by what is now Section 19 (1) of the Act which empowers us to hear and determine differences between the parties concerning the interpretation, application, administration or alleged~contravention of the'collective agreement, and by what is now Section 18 (2) of the Act under which employee grievances concerning classificatibn, appraisal, discipline, dismissal or sus~eion may be referred to the Board for decision. The Board commented: “We have no other authority to intercede between the parties: we do not have any inherent jurisdiction to do justice - or what we may conceive to be justice - or to provide remedies, no matter how desperately a particular case may cry out for relief", and concluded that any decision rendered beyond the limits of the Board's legal authority would be a nullity. We find that we are without jurisdiction to act in the matter. These proceedings are accordingly terminated. Dated at. eonsecon Ontario this 15th day of August.1988. -------_----------------- P. Draper - Vice Chairman "I dissent" (Dissent attached) ---------------_---_----- J. D. McManus - Member \a --m---- ----------------- I. 3. Cowan - Wember 2 - 136?/06, 13txl06 DISSENT This case raises the question of whether the Board has any jurisdiction to interpret and enforce a settlement, entered into by the parties, which is not incorporated in en Order of the Board. I can conceive of many instances when the Board would have no such jurisdiction to vhich the Chairman apply. However, it seems to me that the question of whether the Board has jurisdiction in any particular case depends on the circumstances of the case. It is therefore useful to review briefly the circumstances giving rise to the matter before US. The original grievance dated April 30, 1986 alleged that the grievers had been ‘!denied shift premium benefit for working the time oft 0645 to 0700’as per article 11.1 of the Collective Agreement”. The grievance was’considered~by management and rejected on the basis’of management’s conclusion that the Collective Agreement had not been violated. A stage two meeting was conducted at which the matter was again considered but without resolution. However, following the stage two meettng, each grievor received ‘a letter from their superintendent proposing a settlement. In the case Of Mr. Bain, it reads: “Re : .Name - Mr. D. Bain Date of grievance - April 30, 1986 Issue -., Shift Premium” r. Without prejudice and without precedent, the parties agree to the following terms as full and final settlement of the above noted grievance. The Ministry agrees to pay seven and one half (7 l/2) hours less statutory deductions. The Union and the grievor agree to withdrew the grievance. Standing by itself, the settlement clearly does not,purport to interpret the Coil&rive Agreement. However, when the settlement is read against the grievance and the circumstances givfng.ri6e.t.o the grievance, it is clear that the settlement is a promise or a representation by management to interpret and administer article 1~1.1, in this, instance, by payment of “seven and one half (7 l/2) hours less statutory deductions”. The grievers relied on this representation, executed the settlement and withdrew the grievances. ../page 2 . : 138ll06, 1300/86 -2- In these circumstances, management is estopped from denying the grievor’s claim under article 11.1 by any interpretation or application of the agreement that is not in accord with the settlement. Following the execution of the settlement, a dispute arose as to its meaning, In other words, a dispute arose as to the scope and meaning of the representation which is now binding by way of estoppel. Management does not dispute that it is bound in this way, as 1 say the only dispute relates to the precise terms of the estoppel. In any event, and so as to resolve this dispute, a second grievance was filled out and it is this grievance that the Roard is.called upon to determine. No objection hes been taken to our Jurisdiction. In the circumstances, the position of the parties permits us to treat the second grievance as a continuation of the .first in which we are required to determine the rights of the parties under article 11.1 (as required by the first grievance) as affected by the estoppel. Accordingly, it cannot be said that the parties are being asked to perform any act outside of our jurisdiction. Rather, we are being asked to adjudicate a grievance alleging a breach of the agreement in which manage- ment is estopped from asserting an interpretation and application of the agreement which varies from the representation contained in the settlement. >, This Board and all Boards of arbitration established by statute have a duty to apply the principle of estoppel in a proper case. Canadian National Railway Co. et al V. Beatty et al 34.0.R. (2d) 385. In all situations involving the application of this principle, the Board is not, strictly speaking, interpreting or applying the Collective Agreement 8s~ written. Rather it is interpreting the rights of the parties to the agreement as they have been effected by the binding representations made by one of them. Accordingly, in the circumstances of this case, I see no reason why the Board cannot adjudicate the matter. Board member,