GSB#1799/99
UNION# 00B045, 00B046, 00B047, 00B048, 00B049, 00B050,
00B051, 00B052, 00B053, 00B054, 00B055, 00B056, 00B057
IN THE MATTER OF AN ARBITRATION
Under
THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT
Before
THE GRIEVANCE SETTLEMENT BOARD
BETWEEN
Ontario Public Service Employees Union
(Addae et al)
Grievor
-and-
The Crown in Right of Ontario
(Ministry of Finance)
Employer
BEFORE Barry B. Fisher Vice-Chair
FOR THE GRIEVOR Don Martin
Grievance Officer
Ontario Public Service Employees Union
FOR THE EMPLOYER Helen Ecker
Labour Relations Consultant
Ministry of Finance
HEARING April 24, 2001 and April 25, 2001.
INTERIM AWARD
This Interim Award will deal with a preliminary objection made by the Ministry that the grievances of two of the grievors, Mr. Klonowski and Ms. Wathen, should be excluded from this Group Grievance as they have settled the same issue in subsequent Minutes of Settlement.
The relevant facts, in chronological sequence, are as follows:
On August 16, 1999 the Ministry introduced a change in travel policy for FSO’s and FCO’s in the North York Regional Tax office.
On September 16, 1999 Mr. Klonowski and Ms. Wathen filed identical grievances, which stated, “ I grieve that the Employer has violated the Collective Agreement for changing past practice and establishing a discriminatory new method of travel payment practices. Settlement Desired: Full disclosure requested with full redress”.
In or about the same time ten other grievors filed identical grievances.
The 12 grievances have collectively been filed with the GSB as a Group Grievance under the name of Addae et al, bearing GSB # 1799/99. Mr. Klonowski’s grievance bore the OPSEU file number 00B048 and Ms. Wathen’s was # 00B052.
On May 17, 2000 Mr. Klonowski and Ms. Wathen submitted individual grievances that stated: “ I grieve that the Ministry has a discriminatory practice of time credits while traveling policy. Settlement Desired: Full redress Full disclosure”. These were OPSEU file numbers 00B399 and 00B400 and GSB # 1242/00 and 1243/ 00.
On March 15, 2001, there were Minutes of Settlement signed by the Ministry and OPSEU in which eight grievances of Mr. Klonowski and Ms. Wathen were settled. Part of the settlement included a payment of money to both grievors for “ reimbursement of expenses”. These Minutes of Settlement listed all the grievances covered by the settlement. This list included the later grievances set out in paragraph 5 of this Award (the May 17, 2000 grievances) but did not refer to the earlier Group Grievance, dated September 16, 1999.
The Ministry pleads that in effect the grievors are trying to litigate in this Group Grievance what they have already settled in their individual grievances and that this should not be allowed either under the doctrine of res judicata or of respecting settlements.
All the cases cited by the employer in their brief cite the fact that after a matter is settled a grievor cannot file a subsequent grievance on the same issue as this would constitute an attempt to revive the settled grievance. In the case before me the outstanding grievance was filed before the settled grievance, therefore those cases are of little assistance to me.
The parties set out specifically in the Minutes of Settlement those grievances that were covered. They did not set out this Group Grievance as one of the grievances that was being settled. They either knew of or should have known of the existence of the grievors’ involvement in the Group Grievance and therefore it would be unfair to completely exclude them from the Group Grievance on the basis of the Minutes of Settlement.
On the other hand, if it comes time to fashion a remedy on the Group Grievance (which of course will not be done unless the issue of liability is determined in favour of the Union), it must be clear that to the degree that there is any overlap between the two sets of grievances, that Mr. Klonowski and Ms. Wathen should not be overcompensated for any loss already covered by the filing and the settlement of the May 17, 2000 grievances.
The preliminary objection of the Ministry is dismissed.
Dated at Toronto, this 26th day of June, 2001.