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HomeMy WebLinkAbout2004-2484.Stuart.06-02-01 Decision Crown Employees Commission de Nj Grievance Settlement reglement des griefs Board des employes de la Couronne ~ Suite 600 Bureau 600 Ontario 180 Dundas Sl. West 180 rue Dundas Ouest Toronto Ontario M5G 1Z8 Toronto (Ontario) M5G 1Z8 Tel. (416) 326-1388 Tel. (416) 326-1388 Fax (416) 326-1396 Telec. (416) 326-1396 GSB# 2004-2484 UNION# 2004-0727-0002 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN Ontano PublIc ServIce Employees Umon (Stuart) Union - and - The Crown In RIght of Ontano (Mimstry of Natural Resources) Employer BEFORE Nimal V DIssanayake Vice-Chair FOR THE UNION Jim GIlbert Gnevance Officer Ontano PublIc ServIce Employees Umon FOR THE EMPLOYER FelIx Lau Counsel Mimstry of Government ServIces HEARING January 25 2006 2 DeCISIon A heanng was scheduled In Dryden, Ontano for January 25 and 26 2006 to hear a gnevance dated September 23 2004 filed by Mr Douglas Stuart. At the commencement of the heanng on January 25th Mr GIlbert Informed the Board that based on InformatIOn that had recently come to hIS attentIOn, he was of the OpInIOn that the partIes had faIled to provIde appropnate thIrd party notIce and moved that the proceedIngs be adjourned to enable such notIce to be gIven. Mr Lau for the employer dIsagreed and took the posItIOn that In the CIrcumstances of thIS case thIrd party notIce was not reqUIred. The partIes set out the pertInent facts by way of opemng statements and made submIssIOns on the Issue of thIrd party notIce Based on the same, I orally ruled that thIrd party notIce was not reqUIred and demed the umon's request for adjournment. The umon requested that wntten reasons for the rulIng be Issued. The matenal facts are as follows, On or about September 13 2004 the gnevor e- maIled the employer requestIng a leave of absence wIthout pay for a penod of one year from October 4 2004 to October 4 2005 The purpose of the leave was to accept a one year employment contract wIth a First NatIOns orgamzatIOn In that penod. The e-maIl stated that If the leave of absence IS demed, It should be treated as a letter of resIgnatIOn effectIve October 1 2004 For purposes of thIS decIsIOn It suffices to note that the employer concluded that the requested leave of absence would not be approved. However the employer approved for the gnevor a leave of absence wIthout pay for a shorter penod, from November 1 2004 to January 30 2005 The gnevor took the posItIOn that the leave as approved was of no use to hIm, and on 3 October 1 2004 submItted a further formal resIgnatIOn effectIve the same day In the meantIme, he had filed the Instant gnevance dated September 23 2004 allegIng that the employer's demal of the leave of absence for the requested one year penod contravened agreement. FolloWIng the gnevor's resIgnatIOn, the employer posted and filled hIS posItIOn. The present dIspute IS about that Incumbent's entItlement to thIrd party notIce In the present proceedIng. In thIS arbItratIOn, the umon IS seekIng the folloWIng remedIes (1) A declaratIOn that the collectIve agreement was vIOlated by the employer by denYIng the requested leave (2) An order that the employer reInstate the gnevor In the posItIOn from whIch he resIgned. (3) An order that the employer approve the leave of absence wIthout pay for the one year penod as requested by the gnevor Based on the foregoIng, the umon contends that the Incumbent, who currently occupIes the gnevor' prevIOUS posItIOn, IS entItled to thIrd party notIce He referred me to a decIsIOn dated September 14 2005 In Re Granholm, 2003-2259 (Petryshen) whIch he submItted was on "all fours" wIth the Instant case He took the posItIOn that the pnncIple In Re Blake reqUIred me to follow the Re Granholm decIsIOn. Mr GIlbert relIed on a statement made by Vice-Char Petryshen to the folloWIng effect, "In my VIew there IS lIttle doubt that the umon seeks a process whIch IS ultImately desIgned to secure the MaIntenance Mechamc posItIOn for Mr Granholm, thereby affectIng the nghts ofMr HickIn under the collectIve agreement." 4 He argued that sImIlarly In the Instant case the gnevor was seekIng to return to hIS former job from whIch he had resIgned. If he IS awarded that remedy the Incumbents collectIve agreement nghts would be affected. Mr Lau for the employer submItted that entItlement to thIrd party notIce depended on the facts of each case and that Re Granholm IS dIstIngUIshable from the present case as It was treated by the Board as ajob competItIOn case It IS settled law that In labour arbItratIOn, thIrd party notIce IS reqUIred In appropnate CIrcumstances See, Hoogendoorn and Greemng metal products & Screemng EqUIpment Co., (1967) 65 D.L.R. (2d) 641 (S C C) Bradlev and Ottawa ProfessIOnal FIre FIghters Asso., (1967) 63 D.L.R. (2d) 376 (Ont. Ct. of Appeal) and Re CanadIan BroadcastIng CorporatIOn, (2005) 137 L.A.C (4th) 343 (M.G PIcher) However the law IS clear that thIrd party notIce IS not reqUIred In every case where a gnevor IS seekIng to return to a partIcular posItIOn, resultIng In the dIsplacement of an Incumbent. Re Granholm does not make such a proposItIOn. The statement from Re Granholm relIed upon by Mr GIlbert IS contaIned In a decIsIOn Vice-Chair Petryshen charactenses as a "bottom lIne" decIsIOn. In a subsequent decIsIOn on the ments of Mr Granholm's gnevance (Re Granholm, 2003-2259 decIsIOn dated November 8 2005) the basIs for Mr Petryshen's bottom lIne decIsIOn becomes clearer Thus at p 4 he wrote Pnor to the September heanng dates, the partIes addressed by way of wntten submIssIOns the Issue of whether Mr J HickIn, the successful applIcant who IS stIll employed as the MaIntenance mechamc was entItled to thIrd party notIce of the heanng. In essence, the Umon argued that he was not entItled to notIce because the Issue at thIS stage of the proceedIng only related to whether the Employer contravened a settlement, a matter In whIch Mr HickIn dId not have an Interest. In a decIsIOn dated September 9 2005 I concluded that Mr HickIn was entItled to thIrd party notIce In the CIrcumstances The Umon's goal IS to challenge the valIdity of the competItIOn In whIch Mr. HickIn secured the 5 Mamtenance Mechamc posItIOn and to ultImately secure that posItIOn for Mr. Granholm GIven the remedy the Umon IS seekmg, It was my VIew that Mr Hickm had a legal mterest m the proceedmg and was entItled to notIce Mr Hickm attended both days of heanng as an observer only electmg not to partIcIpate (emphasIs added) I agree wIth Mr Lau that Re Granholm IS dIstmgUIshable from the present case In that case the gnevor was claImmg that he had a nght to be mtervIewed for the competItIOn m whIch the mcumbent was the successful candIdate By way of remedy he was seekmg an order that the employer mtervIew hIm. Therefore, If hIS gnevance succeeded, he would be mtervIewed, and If he cleared that hurdle, would have gone on to partIcIpate m the subsequent steps m the competItIOn. That would necessanly have bought hIm mto competItIOn WIth the mcumbent. In those cIrcumstances, the board qUIte correctly stated that the umon was challengmg the valIdIty of the competItIOn, through whIch the mcumbent was appomted to the posItIOn. That tnggered the need for thIrd party notIce In contrast, here the UnIon IS not challengmg the competItIOn through whIch the mcumbent was appomted to the gnevor's former posItIOn. Nor IS the gnevor seekmg partIcIpatIOn m that competItIOn. The umon IS seekmg to mvalIdate the gnevor's resIgnatIOn from hIS former posItIOn. The umon IS claImmg m effect that If the employer had complIed wIth the collectIve agreement and approved the one year leave of absence wIthout pay the gnevor would not have resIgned. Therefore, what IS under scrutmy m the present lItIgatIOn IS the mteractIOn and the legal nghts between 6 the gnevor and the employer The competItIOn process In whIch the Incumbent successfully partIcIpated In IS not under reVIew In thIS proceedIng. Therefore, the CIrcumstances here are sImIlar to a case where a gnevor IS challengIng the lawfulness of hIS termInatIOn by the employer If successful, In both sItuatIOns, the findIng In effect IS that had the employer complIed wIth the collectIve agreement, the gnevor would not have vacated hIS posItIOn In the first place It IS umversally accepted that an Incumbent IS not entItled to thIrd party notIce In a proceedIng In whIch the gnevor IS seekIng reInstatement folloWIng hIS termInatIOn. See Re NatIOnal Arts Centre Corp (1981) 30 L.A.C (2d) 431 (ShIme) The same reasomng leads me to the conclusIOn that no thIrd party notIce IS reqUIred In the present CIrcumstances where the gnevor IS seekIng reInstatement on the grounds that hIS resIgnatIOn was not of force or effect. Dated thIS 1st day of February 2006 at Toronto Ontano ~F . . ,.... , .. .. ...... . . . , ~ . . . -, ~ .. . "1 -."_ ,'> ~Da .~.:.' ... ':~: ,.'" ... .....>~~.$W Vice- a soil"' .