HomeMy WebLinkAbout2016-1987.Pereira.20-02-14 Decision
Crown Employees Grievance Settlement
Board
Suite 600
180 Dundas St. West
Toronto, Ontario M5G 1Z8
Tel. (416) 326-1388
Fax (416) 326-1396
Commission de
règlement des griefs
des employés de la
Couronne
Bureau 600
180, rue Dundas Ouest
Toronto (Ontario) M5G 1Z8
Tél. : (416) 326-1388
Téléc. : (416) 326-1396
GSB# 2016-1987
UNION# 2016-0551-0018
IN THE MATTER OF AN ARBITRATION
Under
THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT
Before
THE GRIEVANCE SETTLEMENT BOARD
BETWEEN
Ontario Public Service Employees Union
(Pereira) Union
- and -
The Crown in Right of Ontario
(Ministry of the Solicitor General) Employer
BEFORE Ian Anderson Arbitrator
FOR THE UNION Jane Letton
Ryder Wright Blair & Holmes LLP
Counsel
FOR THE EMPLOYER Joohyung Lee
Treasury Board Secretariat
Legal Services Branch
Counsel
TELECONFERENCE
SUBMISSIONS
July 16, 2019
Written submissions completed February
10, 2020
- 2 -
Decision
[1] The Grievor, through the Union, requests “reconsideration” of the decision in this
matter dated November 22, 2017 which dismissed the grievance (the “original
decision”). The parties agreed to proceed by way of written submissions.
[2] Having considered the submissions of the parties, I adopt the following
submissions of the Employer:
a. The Grievance Settlement Board does not have the jurisdiction to
reconsider the Decision. The absence of jurisdiction to reconsider a
decision was expressly recognized by the GSB in OPSEU (Ross) and
Ontario (Ministry of Municipal Affairs and Housing), GSB No. 1981-0407
(June 1, 2010) (Gray) at paras 37 and 42:
[37]
The Board has no jurisdiction to reconsider and change a finding or
decision it has already made on the merits of an issue in dispute. [...]
[42]
Whether reconsideration of a decision is sought on the basis of new
evidence or an argument that the Board misapprehended the evidence
before it or some challenge to the hearing process by which the Board
arrived at the decision, the result is the same: having made a decision
that professes to determine some issue before it on the merits, the
Board cannot later reconsider that determination unless all parties to
the proceeding agree or a court so directs on judicial review.
b. Further, contrary to the assertion in the Union's written submissions, the
Decision was arrived on the basis of accurate information. The Employer
submits the following in response to the alleged inaccuracies as set out in
subparagraphs 5a. to 5d. of the Union's written submissions:
i. Subparagraph 5a. - The description at paragraph 1 of the Decision
that the Grievor "elected to continue his employment at Syl Apps" is
not inconsistent with the Grievor's assertion that he was one of the
150 candidates hired by Syl Apps. Accepting the Grievor's
assertion as true for the purpose of these submissions, the Grievor
would have "elected" to continue employment with Syl Apps in the
sense that he accepted an offer of employment from Syl Apps.
ii. Subparagraph 5b. - Paragraph 4 of the Decision simply outlines the
Employer's position in regards to the Grievor's pension service date
and the basis upon which the Employer arrived at that conclusion.
The Arbitrator did not make any conclusions regarding the Grievor's
- 3 -
pension start date as the grievance was dismissed on the basis of
timeliness. The Grievor's asserted view of the merits of his
grievance is not a basis to reconsider the decision to dismiss his
grievance on the basis of timeliness.
iii. Subparagraph 5c. - Paragraph 5 of the Decision is an accurate
recitation of the content of the Grievor's October 8, 2016 grievance
form. The grievance form, under "Settlement Desired", references
a pension commencement date of "September 1985". Further,
Paragraph 5 of the Decision is also consistent with paragraph 17 of
the Agreed Statement of Facts.
iv. Subparagraph 5d. - As part of the expedited 22.16
mediation/arbitration procedure, the Arbitrator heard oral
representations of the parties in addition to the Agreed Statement
of Facts. The cost implications of the adjusting the Grievor's
pension service date as requested was discussed on November 21,
2017, and the approximation of "excess of $80,000" is consistent
with the OPTrust documentation that was provided by the Union in
the course of the grievance process.
c. Finally, the alleged deficiencies as set out in paragraph 5 of the Union's
written submissions, even if accepted, would not alter the ultimate
conclusion that the grievance was not filed in a timely manner and thus
are an insufficient basis for the request for reconsideration.
[3] With respect to the Union’s Reply submissions, I note the following. I accept the
subject matter of the grievance, namely the Grievor’s pension credits, is an issue
of importance. I do not agree the reasoning of the original decision was not
“sound” nor that it was based on information which was not “accurate”. The fact
the Grievor participated in a job competition in order to “continue” his
employment at Syl Apps is immaterial: there is no suggestion as to how this
could in any way affect the original decision. For the reasons stated above, there
are no material errors in fact or reasoning in the original decision.
[4] Accordingly, the request for reconsideration is denied.
Dated at Toronto, Ontario this 14th day of February, 2020.
“Ian Anderson”
Ian Anderson, Arbitrator