Ontario Public Service Employees Union (Group Grievance, Clapperton) v. The Crown in Right of Ontario (Ministry of the Solicitor General and Correctional Services), 2000 CanLII 20478

DECISION

In a decision dated March 12, 1999, I allowed grievances which claimed that the Employer contravened Articles 31.7.1 of the Collective Agreement by not paying the 2% benefit to certain unclassified employees. I remained seized of the grievances to deal with any implementation or compensation issues that the parties were unable to resolve, as well as certain deferred issues. These latter issues related to retroactivity and focused on how far back employees will be compensated and on whether non-grievors would receive a retroactive payment.

This matter came back on for hearing on February 10, 2000. At that time, the Union expressed a number of concerns, chief among them being that unclassified employees in some Ministries were still not being paid the 2% benefit pursuant to the March 12, 1999 decision. The Employer advised that the unclassified employees affected by the decision in four Ministries received the 2% benefit shortly after the decision issued and continue to receive it. With respect to two Ministries which use a considerable number of unclassified employees, the Employer indicated that it has encountered considerable administrative difficulty in determining who is entitled to receive the 2% benefit and how much they are owed. The Employer is in the process of hiring additional staff, finding them extra space and developing a computer program to address its administrative problem. The Employer agrees that all unclassified employees entitled to receive the payment, who have not yet received it, will get the 2% benefit, with interest.

After meeting to attempt to resolve the outstanding issues, the parties agreed to an interest formula and they agreed to continue to attempt to resolve the retroactivity issues, failing which they would argue the legal issues concerning retroactivity at a hearing on April 11, 2000.

When the hearing resumed in the early afternoon, the Union made a motion that I direct the Employer to forthwith pay the 2% benefit to all those unclassified employees who were entitled to receive it after the decision issued in March 1999. After entertaining submissions from the parties on this motion, I orally ruled at the hearing that it would not be appropriate to make such a direction in the circumstances. Although one can appreciate the frustration of the Union, the Employer has agreed that all of the unclassified employees entitled to the 2% benefit pursuant to the decision dated March 12, 1999, will receive their monies, with interest. The Employer is endeavouring to deal with its administrative difficulties as quickly as possible. It was not appropriate, in my view, to make a direction which the Employer would not be able to comply with in the circumstances.

Rather than give the requested direction, I advised the parties that one would expect the Employer to proceed as quickly as possible to ensure that it met its obligations under the Collective Agreement. At one point, the Employer advised that its administrative issues would be resolved by June 2000. One can only expect that the Employer would be able to resolve the administrative problem by that time. If the Employer, however, is unable to meet its Collective Agreement obligations by June 2000, representatives of the Employer are required to appear before the GSB on July 7, 2000, to explain why the Employer was unable to met its obligations by that time. At that hearing, if it is necessary, the Union will have the opportunity to make further submissions on the issue.

Dated at Toronto, this 28th day of February, 2000.