Grievance Settlement Board

GSB # 0414/94 OPSEU # 94D491

IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT

Before THE GRIEVANCE SETTLEMENT BOARD

BETWEEN

Ontario Public Service Employees Union (MacPherson et al) Grievor

• and -

The Crown in Right of Ontario (Ministry of Community and Social Services) Employer

BEFORE: Felicity D. Briggs, Vice Chair

FOR THE GRIEVOR: Peggy Smith, Counsel, Eliot, Smith Barristers & Solicitors FOR THE EMPLOYER: Yasmeena Mohamed, Counsel, Legal Services Branch, Management Board Secretariat

HEARING: May 2, 2000

This proceeding arises from the grievance of Holly MacPherson dated November 15, 1993, alleging discipline by way of a letter dated November 4, 1993 and on the basis of workload.

A hearing was convened on May 3, 2000, wherein the parties made submissions. At the commencement of the hearing, counsel for the Employer raised a preliminary objection regarding the arbitrability of the grievance. Specifically, the Employer took the position that the letter dated November 4, 1993 was not disciplinary in nature. It was merely a confirmation of a meeting held between the grievor and her manager, wherein the manager communicated his concerns vis a vis the grievor’s work performance regarding the Student Placement Program. The Employer was submitted that the letter was never placed in the grievor’s personnel file and therefore not disciplinary. In support of its position, the Employer relied number of earlier decisions of the Grievance Settlement Board.

With respect to the above, the Union contended that the letter was discipline because there was an actual transfer and removal of duties from the committee. By acting on that letter, the Employer has made the letter disciplinary in nature. As a remedy, the Union sought a declaration that the Employer has breached the collective agreement and requested that the letter dated November 4, 1993 be removed from the grievor’s file.

The Employer submitted that the letter dated November 4, 1993 has never been placed on the grievor’s file and therefore the remedy is moot. With respect to the second allegation, the Employer takes the position that the issue of workload arrangement cannot be categorized as disciplinary. The Union recognized that the grievor did not grieve harassment or violation of any other provisions of the collective agreement. However, the Union asked the Board to review the arrangement based on the grievor’s previous relationship with her supervisor.

As evidence the parties have agreed to tender the letter dated November 4, 1993 and requested the Board, upon review of same, make a determination as to whether the letter was disciplinary. If it is not discipline, the Board lacks jurisdiction to hear and decide the matter.

After consideration of this matter, I must find that the letter dated November 4, 1993 is not discipline. It contained none of the common elements found in letters of discipline and it was never placed in the grievor’s file. Accordingly, I lack the jurisdiction to determine this matter. I am also without jurisdiction to determine the issue of the alleged alteration of the grievor’s workload in the circumstances of this case. There was no allegation of harassment on the face of the grievance nor was the matter raised as such.

For those reasons, the grievance is dismissed.

Dated in Toronto, this 12^th day of May, 2000.