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HomeMy WebLinkAbout1991-1443.Hyland.94-12-22· , . ./ ONTARIO EMPLOYES DE LA COURONNE CROWN EMPLOYEES DE £ 'ONTARtO GRIEVANCE COMMISSION DE SETTLEMENT R GLEMENT BOARD DES GRIEFS. 180 DUNDAS STREET WEST, SUITE 2100, TORONTO ON MSG 1Z8 TELEPHONE/TI~L~PHONE : (416) 326-1388 180, RUE DUNDAS OUEST, BUREAU 2100, TORONTO (ON) MSG 1Z8 FACSIMILE/T~'L~COPIE : (416,1 326- '~396 GSB# 1443/91,1470/91,122/92,123/92,124/92,2815/92,2816/92,2817/92, 2818/92,2819/92,2820/92,2821/92,2822/92,2823/92 OPSEU# 91E065,91E069,92A372-4,92G$26-34 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT BefOre THE GRIEVANCE SETTLEMENT BOARD BETWEEN OPSEU (Hyland) Grievor · ' - a~d - The Crown in Right of Ontario (Ministry of Correctional Services) Employer BEFORE J. Roberts Vice-Chairperson W. Rannachan Member F. Collict Member FOR THE 'K. Whitaker GRIEVOR Counsel Ryder Whitaker Wright Barristers & solicitors FOR THE M. Mously EMPLOYER Grievance Administration officer Ministry of Correctional Services HE~RING October 7 & 12, 1994 3 II. THE THREE GRIEVANCES The three grievances that were the subject of the preliminary objection were presented to the Board in a package in which they were arranged in descending order, by date. They were · addressed by counsel in this order, and so it will be convenient for the Board to follow the same order in describing iheir content. The first grievance was dated May 20, 1992. In it, the grievor stated, "I grieve that I have been unjustly penalized financially from a G.S.B. decision from May of 1991 which was · intended to be in my favour, however it turned against me." At the hearing, it was indicated by counsel for the Union that if this grievance were heard on its merits, the argument of the Union would be that one of the factors to be taken into account in making the grievor whole upon his reinstatement would be to gross-up the payment of back wages to avoid the unfair tax consequences occasioned by payment of a lump sum. It was indicated that the payment of a lump sum in a particular taxation year would, in all likelihood, bump the grievor into a higher tax bracket with a higher marginal tax rate. The second grievance, was filed on August 28, 1991. In it, the grievor stated, "I grieve that management of the Toronto jail placed letters and information in my file negative to my employment." 2 INTERIM AWARD I. INTRODUCTION This arbitration arises out of several grievances filed by the grievor, Mr.. Blair Hyland, subsequent to his reinstatement pursuant to an award issued by the Grievance Settlement Board in Re: Hyland and Ministry of Correctional Services (May 8, 1991), G.S.B. No. I062/89 (Ratushny). In a preliminary objection in this hearing, counsel for the Employer submitted that three of the grievances placed before this panel of the Board involved the question whether the Ministry properly implemented the Ratushny award and should be referred back to the.original panel, which had remained "seized in the event that there is any difficulty in implementing this award." Id. at 27. It was 'further submitted by counsel for the Employer that, in any event, the original 'Ratushny panel was functus officio with respect to two of the these three grievances because they raised issues that were not raised or argued before the Ratushny panel and so could not have been the subject of the reservation of jurisdiction by that panel. For reasons which/bllow, the preliminary objection is allowed, but only upon the first ground, i.e., that the grievances should be referred back to the Ratushny panel to determine whether the Ministry properly implemented its award. We decline to make any ruling upon the issue of functus officio because that, too, would appear to be more appropriately dealt with by the Ratushny panel. 4 At the hearing, counsel for the Union indicated that this grievance arose out of the obligation upon theEmployer to place.the grievor in the position that he should have been in had he never been subjected to the discipline of discharge. Counsel indicated that there remained in the grievor's file some correspondence regarding the incident leading to the discharge. Moreover, he said, certain letters of commendation had disappeared from the file and the grievor wanted them put back. The third grievance was filed on June 21, 1990. In it, the grievor stated, "I grieve that the opportunity of applying for all competitions during May 25/89 and.May 25/91 was denied." Counsel for the Union indicated that this grievance related to the fact that while he was away from work for two yea[s because of his unjust discharge, the grievor lost ail opportunity . to apply for transfer and promotion during that two-year period. The grievor was seeking a remedy for these lost opportunities. III. REFERRAL BACK TO THE RATUSHNY PANEL It was common ground between both parties that the above three grievances raised issues regarding the impiementation of the Ratushn~ award, which reinstated the grievor "with pay from the date of dismissal and interest" after determining that he had been unjustly discharged. Counsel for the Employer submitted that because the Ratushny panel expressly stated that it 5 remained seized "in the event that there is any difficulty in implementing this award", these grievances should be referred back to the original Panel. Counsel for the Union submitted, on the other hand, that the Grievance Settlement Board was a single statutory body and as such, there was no legal impediment to bar one panel of'the Grievance Settlement Board from exercising jurisdiction over implementation issues reserved by another panel. Moreover, it was submitted, labour relations considerations and the need for expedition in dealing with the foregoing grievances made it appropriate for this panel to decline to refer the grievances to the Ratusyny panel and deal with them itself. In support of this position, counsel for the Union' cited _Re .Angus and Ministry of Correctional Services (1989), G.S.B. No. 203/84 (Slone). In that case, a new panel of the Grievance Settlement Board agreed to assert jurisdiction over implementation issues reserved by another panel. ~. at 6..In that case, however, it was impossible to empanel the previous board and the only choice left to the parties was either to present the issues to a new panel or agree that the original vice-chair hear the matter as a single arbitrator. The parties agreed that they had no objection to the new panel hearing the matter and that the new panel could regard itself as being in the same position as if it had issued the original award..!_0. Here, however, the original panel remains available to determine the implementation issues that were reserved and the parties have not agreed that this panel should hear the matter. In our view, implementation issues -~ and more particularly, the question whether the panel 6 either expressly or implicitly reserved jurisdiction over particular issues -- are best left to the original panel if that panel remains available. In our opinion, the best interpreter of an award is the panel that wrote and issued it. Accordingly, we decline jurisdiction over the grievances in question and direct that they be referred to the Ratushny panel. iV. THE OUESTION OF FUNCTUS OFFICIO In light of the foregoing ruling, it is not necessary for this panel to decide the functus issue raised by the Ministry to the "gross-up" and "lost opportunity" claims made in grievances '(I) and (III) above. We would, however, make some preliminary obserafions o'f a strictly obiter nature. The submissions of the parties i'egarding the functus issue raised some interesting questions. Counsel for the Union agreed that it was unlikely that either one of the "grOss-up~ or "lost opportunity" issues was raised or argued before the Ratushny panel. In the submission of counsel for the Union, this was not a matter for concern so long as the issues Were raised by the grievor after the compensation and interest negotiations resulting from the original award h~d~ been completed, The issues, it was submitted, remained "live" issues for determination so long as the original panel did not .turn its mind to them. In this sense, counsel submitted, the work of the panel had not been completed and remained open for subsequent consideration. Counsel found support for this unique and intriguing submission in Re Angus, su__p_.~. 7 In that case, the original panel had awarded the remedy of reclassifi6ation in six grievances taken from a group of one hundred classification grievances that had been filed with the Board. It had not, however, expressly reserved jurisdiction over any implementation issues arising out of its disposition of those six grievances. The subsequent panel determined that because the remaining ninety-four grievances had not been addressed, there was an express reservation of jurisdiction to continue hearing those grievances. With respect to the. six grievances that had been heard,' the Board made.the following remarks: As for the other six, we are of the view that there was an implicit reservation of jurisdiction. Even though the Brandt panel awarded the remedy of reclassification, it is obvious from reading the long award that it did not turn its mind to the issues of retroactivity or interest, both of which would have been logical issues to address. It simply never got that far. In such a case, it would be harsh and unduly rigid to suggest that a board cannot be approached to complete what it has started, It would obviously be different had that board considered the issues and rejected them. The doctrine of functus officio means that you only get one kick at the can .... Id. at 9. Because the issues of retroactivity and interest would have been logical issues to address and the original panel had never gotten far enough to address them, it was concluded that there was an implicit reservation of jurisdiction. While we are not called upon to make any determination upon the question whether the decision in Angus may be extended to create an implicit reservation of jurisdiction over every "logical" implementation issue left unaddressed in an award, we have some questions regarding the potential impact of such a broad conclusion. Would it lead to the absence of "closure" in casals and the advent of inefficient "piecemeal" determinations? Would it absolve counsel from 8 their responsibility to raise alt logical issues, including implementation issues, in a single proceeding? Would it lead to one party seeking strategic advantage over the other by intentionally staggering the presentatiOn of such issues? Would it lead to parties seeking to obtain more than "one kick at the can" by parsing broad issues into several sub-issues and presenting them one or two at a time, thereby eroding the doctrine of functus officio? We do not mean to pre-determine the issue. Perhaps the questions that have been posed may ultimately be found to be easily met. We will await with interest the outcome of any further proceedings that might be undertaken before the Ratushny panel. The preliminary objection is sustained and the thr~ grievances in question are referred to the Ratushny panel. DATED at London, Ontario, this 22ndday oll)ecemberl994. ~ R.: ~berts, Chairperson W. S. Rannachan, Union Member F. T. Collict, Employer Member