GSB# 1200/00
UNION# 00B376
IN THE MATTER OF AN ARBITRATION
Under
THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT
Before
THE GRIEVANCE SETTLEMENT BOARD
BETWEEN
Ontario Public Service Employees Union
(Ferraro)
Grievor
-and-
The Crown in Right of Ontario
(The Ministry of Community, Family and Children’s Services)
Employer
BEFORE Loretta Mikus Vice-Chair
FOR THE UNION Ed Holmes and John Brewin
Counsel
Ryder Wright Blair & Doyle
Barristers and Solicitors
FOR THE EMPLOYER Stephen Patterson
Senior Counsel
Legal Services Branch
Management Board Secretariat
HEARING June 3, 2002.
I was appointed to chair a hearing into two grievances that arose within the Ministry of Community and Social Services, specifically within the Ontario Disability Support Program. The first grievance, dated July 17, 2000, alleges a violation of the collective agreement in that Client Service Representatives (CSR) were being assigned interviewing duties contrary to the job specifications for the position. The second grievance, dated August 1, 2001, alleges the Employer has violated the collective agreement by transferring many Income Support Specialists (ISS) functions to other classifications, by transferring Income Support Clerk duties to CSR’s and by imposing rigid scheduling upon the ISS’s that was not required of other employees. The first grievance asked for an order that the CSR’s cease these interviewing duties, the second that the job duties be assigned consistent with the job specifications and that the ISS’s have more flexibility in their scheduling.
The first day of hearing was in August of 2001 and dealt mainly with production of documents and procedure. We then reconvened on September 28, 2001, January 23 and 24th, 2002 and all three days were spent in hearing evidence.
On the fourth day, June 3, 2002, the Employer raised a motion that these two grievances be consolidated with another grievance (GSB # 0588/01) on the grounds that all of these grievances raise common issues of fact and law and should be heard together. That grievance, dated August 1, 2002, stated as follows:
Despite continued growth of the ODSP Program and despite numerous Health & Safety grievances citing excessive workload affecting workers Health & Safety, the employer continues to operate the ODSP Program with minimal staffing.
The grievance asked for the following as redress:
That parties reopen terms of reference for Health & Safety/Workload Committee.
That employer acknowledge constant growth of the ODSP Program and make corresponding increases to staffing levels.
Mr. Patterson, for the Employer, took the position that, when these two matters first came on for scheduling, on the face of the grievances and in light of the correspondence between the parties over production of documents, there did not seem to be a strong enough connection to consider a motion to consolidate. However, over time, it became clear that in both cases the Union intended to rely on a report entitled Workload, Work Organization and Health Outcomes: The Ontario Disability Support Program, prepared by Wayne Lewchuck, the Director of Labour Studies at McMaster University and dated January 31, 2002. That report deals with issues of the organization of the workplace, including who does what and how, training of staff, support available for staff and general staff dissatisfaction. This Board has heard evidence of those same issues in the case before it. The Employer will have to answer that evidence with evidence of its own concerning the inception of the Program, the rationale for the decisions it made then and now, the funding for the program etc. It will have to adduce that evidence in both hearings, which, will be costly and inefficient. For that reason the hearing into these two grievances ought to be consolidated.
Mr. John Brewin is representing the Union on Grievance # 0588/01 (the Brewin grievance). It was his position that these cases involve distinct issues of fact and law which should be dealt with separately. The grievance #0588/01 alleges a violation of Article 9.1, the Health and Safety provisions of the collective agreement. While the allegation is that the breach includes understaffing and inadequate training, the Union is not asking who is doing the work and whether that work is consistent with any job classifications. While the report the Union intends to rely on does require an understanding of the ODSP, which will require evidence of the operation of the program, that evidence will be limited to concerns about the health and safety of the employees. Additional concerns about the impact of the alleged lack training and control on the health and safety issues are similarly limited. These are not the issues in the grievance before you.
Mr. Ed Holmes is counsel for the grievance that is presently before me (the Holmes grievance). He asked the Board to review the grievances carefully. The matters raised in those grievances are substantially different than the one Mr. Brewin is presenting. The one before this Board raises no health and safety matters and, had the Union sought to broaden the grievance to include them, the Employer would have no doubt objected. We have heard the evidence of three witness and none of them have expressed the concerns raised in the Brewin grievance. Where there were references to the history of the ODSP, training and health and safety concerns, they were not pursued by Mr. Holmes or the Employer because they were not part of the Union’s case. They were raised tangentially in support of the allegations regarding work assignments. The Union is not seeking any of the remedies the other grievance has requested, including health and safety relief. Ours are limited to a declaration and cease and desist order.
DECISION
There is no dispute about the GSB jurisprudence concerning the consolidation of grievances. The parties provided me with past GSB decisions setting out the Board’s practice note from 1986 which continues to be recognized as the appropriate test (Fournier and Ministry of Transportation, GSB # 1530/93 and OPSEU and Management Board, GSB # 1526/91, 1294/92). That practice note states as follows:
WHERE ORDER MAY BE MADE
Where two or more proceedings are pending before the Grievance Settlement Board and it appears to the Grievance Settlement Board that,
(a) they have a question of law or fact in common
(b) the relief claimed in them arises out of the same transaction or occurrence or series of transactions or occurrences; or
(c) for any other reason an order ought to be made under this rule,
the Grievance Settlement Board may order that,
(d) the proceedings be consolidated or heard at the same time or one immediately after the other;
(e) any of the proceedings be,
(i) stayed until after the determination of any other of them.
In the order, the Grievance Settlement Board may give such directions as are just to avoid unnecessary costs or delay and, for that purpose, the Grievance Settlement Board may dispense with service of a notice or listing for hearing and abridge the time for placing a grievance on the hearing list.
Additional rational for an order to consolidate is found in Smith and Ministry of Correctional Services GSB # 545/94 et al where the Board stated:
There are a number of other reasons in support of this decision. The cases are not only factually related, but both grievors will be principal witnesses in both grievances. Different findings of fact will be avoided as a result of our consolidations order. Moreover, this order will save the public and the parties money, and will contribute to the orderly and efficient disposition of both grievances.
Finally, the absence of prejudice to a party will weigh in favour of an order.
Applying those factors to the case before me, I am not persuaded that an order to consolidate these grievances is appropriate in these circumstances. In the first instance, these grievances raise very distinct allegations that, if related, only tangentially touch on the same facts. I come to that conclusion based on the evidence I have already heard in this case. As stated before, we have had three days of evidence, none of which raised any of the issues found in the Brewin grievance. While a lack of training is part of the Union’s case in the Holmes grievance, it only raised the issue as an example of the incorrect assignment of duties, not the issue of whether the lack of training created a health and safety hazard. While there was some evidence about the way in which the ODSP is operated, again it only arose in relation to the assignment of work within the job classifications before me.
It seems to me that while there might be an overlap in evidence in some areas, the evidence that will be adduced in the Brewin grievance will, of necessity, involve areas of the ODSP that this Board will not need to hear in the course of the Holmes grievance. There is no concern regarding inconsistent findings between the Board that will hear the Brewin grievance and this Board because we will be considering evidence and argument on different aspects of the ODSP and awarding, if necessary, distinct and specific remedies.
If I were to grant the Employer’s motion and consolidate these grievances, I would have to allow the Union to recall the three witnesses from the Holmes grievance to speak to the issues raised in the Brewin grievance. That would delay the proceedings, result in additional costs and complicate the resolution of this individual grievance.
In conclusion, I am not convinced that these grievances involve sufficiently similar questions of law and fact or claims for relief to warrant a consolidation order.
The Employer’s motion is denied. The parties are to contact the Registrar for continuation dates in the Holmes matter.
Dated at Toronto, this 17th day of July, 2002.