GSB#1026/98
UNION# 98B484
IN THE MATTER OF AN ARBITRATION
Under
THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT
Before
THE GRIEVANCE SETTLEMENT BOARD
BETWEEN
Ontario Public Service Employees Union
(Green et al)
Grievor
-and-
The Crown in Right of Ontario
(Ministry of Finance)
Employer
BEFORE Felicity Briggs Vice-Chair
FOR THE GRIEVOR Don Martin
Grievance Officer
Ontario Public Service Employees Union
FOR THE EMPLOYER Leonard Marvy
Senior Counsel
Management Board Secretariat
HEARING Written submissions.
DECISION
The parties agreed to forego a hearing in this matter and to argue by way of written submissions. This dispute concerns the alleged failure to convert certain employees. The Employer set out a brief description of the facts as follows:
On August 25, 1998 Leah Casselman, OPSEU President, filed a union (policy) grievance which alleged that “the Ministry of Finance [was] failing to convert positions and individuals in accordance with Article 31.15. The desired settlement was for the Ministry to “immediately convert positions and qualified individuals in accordance with the Collective Agreement”.
On December 11, 1998 the Grievance Settlement Board dismissed the union’s policy grievance (GSB#1237/98). Vice Chair Briggs determined on page 11 that:
[a]fter consideration of all of the facts of this case, I must dismiss the grievance. I cannot find, as a policy matter, the unclassified employees (set out at Tab 20 of the document brief) who have been hired since June 1996 should be converted. Simply put, there is no continuing need for their work to be done on a full time basis.
Six unclassified employees of the Barrie Regional Assessment office of the former Property Assessment Division of the Ministry of Finance (now the Ontario Property Assessment Corporation) are grieving that the employer failed to convert them into the classified service, contrary to the Collective Agreement Article 31.15. These grievors request that the employer recognize their status and convert them to the classified service immediately, with compensation for accrued benefits and seniority.
Each of the six grievors, Elizabeth Walker, Gail Green, Tammy Campbell, Elaine Girard, Pamela McBride, and Tim Camick, appeared on the schedule (referred to as Tab 20 in excerpt quoted above at paragraph 2) which listed all Property Assessment Division unclassified staff who would have been more than two years as of
December 31, 1998. This schedule was appended to Vice Chair Briggs’ December 11, 1998 decision and was comprised of those individuals who were to be affected by the grievance arbitration decision, GSB #1237/98.
The Union did not dispute these facts. The submissions from the Union consisted entirely of letters from the six grievors explaining why, in their view the GSB decision referred to above should not to apply.
In its reply submissions the Employer also stated that:
The Employer further submits that the assertion that the grievors (particularly Ms. Tammy Campbell) are currently employed in the same capacity/position as they were at the time of the initial decision is of no consequence, as they are not employed by the Ministry of Finance. The divestment of the Property Assessment Division of the Ministry of Finance to the Ontario Property Assessment Corporation (OPAC) was completed on December 31, 1998. As of January 1, 1998 the municipalities assumed financial responsibility for the delivery of property assessment services. Therefore, these individuals are not employed by the Ministry of Finance and whether or not they continue to occupy the “same position” or engage in the same job duties or functions is of no relevance to the issues raised by their grievances.
Simply put, it was the Employer’s position that the group grievance filed is inarbitrable and should be dismissed because the doctrine of res judicata applies. That is to say that the matter raised by the instant grievance is the identical issue under the same provision of the same collective agreement as that considered by the December 11, 1998 Grievance Settlement decision. In support of its position, the Employer relied upon Re CUPE, Local 207 and City of Sudbury (1965), 1965 CanLII 991 (ON LA), 15 L.A.C. 403 (Reville); Re Algoma Steel
Corporation Ltd and United Steelworkers, Local 2251 (1982), 6 L.A.C. (3) 346 (Brown); and Re The Crown in Right of Ontario (Ministry of Transportation) and OPSEU (Stegner) (September 8, 1995), unreported (Mikus).
After reading the Employer’s submissions and the comments of the grievors I am of the view that the doctrine of res judicata applies and the grievance must fail. The six grievors were included on the original list of employees affected by the policy grievance that was decided and issued on December 11, 1998. It is apparent that the individual grievors are asking for a re-consideration of their facts because they are of the view that the December 11, 1998 decision was wrong and/or ought not to apply in their circumstances. While I understand their frustration, my decision of December 11, 1998 was final and binding on the parties, including these grievors.
Dated in Toronto, this 24^th^ day of May, 2001.