GSB # 1636/98
OPSEU # 99B083
IN THE MATTER OF AN ARBITRATION
Under
THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT
Before
THE GRIEVANCE SETTLEMENT BOARD
BETWEEN
Ontario Public Service Employees Union
(Amaral et al)
Grievor
- and -
The Crown in Right of Ontario
(Ministry of Finance)
Employer
BEFORE Joseph D. Carrier Vice Chair
FOR THE Eric O'Brien
GRIEVOR Counsel Eliot, Smith Barristers & Solicitors
FOR THE Fateh Salim
EMPLOYER Counsel Legal Services Branch Management Board Secretariat
HEARING February 29, 2000
AWARD
This grievance, G.S.B. #1636‑98, reflects a group of Grievances filed in or about December, 1998, by several individuals including, for identification purposes, Sharon Amaral. Those Grievors had been employed by the Ministry of Finance and worked out of the Regional Assessment Office in Kingston, Ontario.
The Kingston Assessment Office was divested by the Ministry in or about December 1998 at which time the relevant operations were transferred to the Ontario Property Assessment Corporation.
The Grievors were all offered, and, with the exception of Robert Bresee who retired, accepted jobs with the Successor Employer.
The grievances allege that the Ministry had violated Article 19.1 of the Collective Agreement by failing to provide "proper notice of termination". Further, each Grievor requested "pay in lieu" referrable to his or her seniority. Additionally, during the course of the grievance procedure, an alternative claim was raised for Notice of Termination pursuant to the Employment Standards Act.
By way of preliminary motion, Employer Counsel challenged the validity of the grievances since, in his submission there was no difference between the parties which could be the subject of arbitration.
Indeed, the Union did not dispute that the grievances properly fell within the ambit of Appendix 9, rather than Article 19.1 of the Collective Agreement. There was no challenge to the Employer's position that the Grievors, having received job offers from the new Employer, had not been laid‑off or surplussed pursuant to Article 19.1 Accordingly, any issue concerning their entitlement would have properly been referrable to Appendix 9.
However, it was common ground between the Parties that all obligations of the Crown pursuant to Appendix 9, including any to individual employees, had been resolved by an Agreement entered into between them in November, 1999. That being the case, there existed no dispute between the Parties which could be the subject of arbitration.
As to the Employment Standards Act, the Union did not dispute the Employer's position that it had no application in view of the continuity of employment provided to the Grievors by the Successor Employer.
In the circumstances set out above, I conclude that there exists no difference between the Parties to the Collective Agreement. That being so, I have no jurisdiction pursuant to the Crown Employees Collective Bargaining Act, and, the grievances must be dismissed.
This decision is consistent with the following earlier awards referred to by
Employer Counsel, Mr. Salim:
Re: The Crown in Right of Ontario (Ministry of the Attorney General) and Ontario Public Service Employees Union (Barter et al), (July 9, 1999) unreported (Briggs);
Re: The Crown in right of Ontario (Toronto Area Transit Operating Authority) and Amalgamated Transit Union (Blake) (May 3,1988), unreported (Shime).
Accordingly, I conclude that there is no difference and that I have no jurisdiction.
The grievances are dismissed.
Dated at Toronto, Ontario this 22nd day of March, 2000.