GSB#1519/00, 1520/00
UNION# OLB443/99, OLB477/99
IN THE MATTER OF AN ARBITRATION
Under
THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT
Before
THE GRIEVANCE SETTLEMENT BOARD
BETWEEN
Ontario Liquor Boards Employee’s Union
(Scarcello)
Grievor
-and-
The Crown in Right of Ontario (Liquor Control Board of Ontario)
Employer
BEFORE Loretta Mikus Vice-Chair
FOR THE GRIEVOR Elizabeth Mitchell Counsel Koskie Minsky Barristers & Solicitors
FOR THE EMPLOYER Alison Renton Counsel Liquor Control Board of Ontario
HEARING April 18, 2002.
On February 12, 2002, I released an award (Scarcello and LCBO GSB # 519/00) the conclusion of which stated as follows:
DECISION
In conclusion, the Union’s preliminary objections of res judicata and issue estoppel are dismissed. The Employer, however, is estopped from changing its practice with respect to the compensation of missed overtime opportunities for the duration of the 1998-2000 collective agreement. The grievances are dismissed in their merits. The Employer’s decision to change its practice and compensate lost overtime with an in kind remedy is not a violation of the collective agreement.
The award referenced above involved an individual’s claim for overtime but was presented to me as a broader question involving a problem that had arisen numerous times in the past and continued to generate grievances over the appropriate remedy in these circumstances. I was asked to deal with several preliminary issues concerning my jurisdiction to proceed as well as whether the past practice created an estoppel and whether the grievance would succeed on its merits notwithstanding my decision on the preliminary matters.
When the parties attempted to implement the award they could not agree on what the meaning of the award and I was asked to reconvene the Board to assist them in resolving the impasse. The Union took the position that I retained the inherent right to clarify my award. The Employer argued that I could not interpret my own award and referred me to a previous decision of mine in which I stated:
Once an arbitrator has rendered a final decision on a matter, she is without authority to act further except to correct clerical errors, errors arising from accidental omissions or errors of a technical nature. An arbitrator can expressly retain jurisdiction to complete any aspect of the award left unaddressed or to clarify certain aspects of the award as it relates to the circumstances of the grievance before it. An arbitrator cannot, however, alter, amend or enforce her award. To allow an arbitrator to interpret her own award gives rise to the danger that the decision may be altered, either through expansion or contraction. (Re Lake Ontario Steel Co. And U.S.W.A, Local 6571 (1992 CanLII 14592 (ON LA), 24 L.A.C. (4th) 355))
That grievance involved a jurisdictional dispute about my authority to hear the matter. Pursuant to an award of Arbitrator Dissanyake, the grievor had been reinstated to employment with strict conditions attached. He was subsequently terminated for what the employer characterized as a breach of the terms of the reinstatement. I was appointed to hear the dispute and at the commencement of the hearing the Employer maintained that when Dissanyake retained jurisdiction concerning the implementation of his award, he retained jurisdiction over any alleged breaches of his award and therefore I could not accept jurisdiction over the same subject matter.
My views on the jurisdiction of an arbitrator or arbitration board in these circumstances have not changed. The decision relied on by the Employer clearly involved the question of whether Dissanyake’s jurisdiction extended to fact situations arising after his award. That is not what I am being asked by the Union do to in this case. There is an inconsistency in the conclusions of the Board that has given rise to a problem which in turn has prevented the parties from implementing the award. I am of the view that I can clarify my original award with the addition of a few words that I omitted in the final award.
During the hearing the Union raised some preliminary objections; namely res judicata, issue estoppel and promissory estoppel. In the award, I clearly dismissed the first two preliminary matters. I then dealt with the issue of promissory estoppel and came to the conclusion that the Union’s position prevailed and that the Employer was estopped from paying an in kind remedy for the duration of the 1998-2000 collective agreement. Finally I determined, on the merits, that the grievances failed and that, when the estoppel ended after the 1998-2000 collective agreement, the Employer could compensate employees for lost overtime opportunities with an in kind remedy instead of pay in lieu.
It is obvious to me that when I stated my conclusions as a summary of the reasoning contained within the award, I failed, in the second sentence, to specify that it was the Union’s argument regarding promissory estoppel that succeeded. When I stated in the next sentence that the grievances were dismissed on their merits, the Employer took that to mean that it did not have to pay any overtime to any employee, including the grievor. That was not what the award stated and, had I been clearer in the previous sentence, it would have been obvious to all.
Therefore, in an effort to clarify my previous award, the final paragraph should read as follows:
In conclusion, the Union’s preliminary objections of res judicata and issue estoppel are dismissed. The preliminary objection regarding promissory estoppel, however, succeeds and the Employer is estopped from changing its practice with respect to the compensation of missed overtime opportunities for the duration of the 1998-2000 collective agreement. When the estoppel ended at the conclusion of the 1998-200 collective agreement, the Employer’s decision to change its practice and compensate lost overtime with an in kind remedy was not a violation of the collective agreement.
These additional words do not change the result of the original award and are
consistent with the reasoning in the body of the award. I hope this helps the parties finally implement this award.
Dated at Toronto, this 24th day of April, 2002.```