GSB#0668/01
IN THE MATTER OF AN ARBITRATION
Under
THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT
Before
THE GRIEVANCE SETTLEMENT BOARD
BETWEEN
Association of Management, Administrative and Professional Crown Employees of Ontario
(Charles)
Grievor
-and-
The Crown in Right of Ontario
(Ministry of Municipal Affairs and Housing)
Employer
BEFORE Randi H. Abramsky Vice-Chair
FOR THE UNION Kathleen Martin Counsel Sack Goldblatt Mitchell Barristers and Solicitors
FOR THE EMPLOYER Lisa Compagnone Counsel Management Board Secretariat
HEARING July 30, 2002.
DECISION
1. Background
- The instant grievance alleges a violation of Article 16 of the collective agreement in that "[t]he Employer has improperly calculated my seniority/continuous service date and improperly refused to recognize my continuous service as an employee in the Ontario Public Service from May 11, 1977 through November 5, 1979." According to the Association's opening statement at the first day of hearing on November 29, 2001, the grievance raises two issues. First, that the grievor's continuous service date (CSD) was improperly calculated, and second, that the Employer improperly failed to recognize the grievor's full seniority and service for the purposes of her pension. There also appears to be an allegation that the Employer violated the collective agreement by providing erroneous information to the Ontario Pension Board (OPB) concerning the grievor's service. On the pension issues, the Employer takes the position that the GSB has no jurisdiction over such matters. The Association contends that jurisdiction exists by virtue of Section 48(12)(j) of the Labour Relations Act, as the relevant pension legislation and plan are "other employment-related statutes" which an arbitration board may "interpret and apply" as well as on the basis that the alleged conduct is an abuse of management rights.
A substantial amount of time and resources have been spent by the parties developing an agreed statement of fact, and at least one hearing date was adjourned for that purpose. The Association now moves to adjourn this matter, sine die, pending reconsideration of the pension issue by the OPB based, in large part, on the agreed statement of facts in this matter.
2. The Parties' Positions
In support of its motion, the Association asserts that a key concern of the grievor is the impact of the Employer's treatment of her CSD on her pension. The Association submits that regardless of the GSB's ruling on the CSD issue, the grievor will seek a reconsideration of the OPB's decision as to whether or not she may "buy back" the period from May 11, 1997 through November 5, 1979 under the relevant legislation and pension plan. The Association argues that there is a clear interplay between the legal issues involved in the grievance and the matter before the OPB, in that if the Employer is found to have improperly calculated the grievor's CSD, the remedy which flows from that would impact her pension issue. It submits that unless the GSB's proceedings are stayed, there is risk of ending up with conflicting decisions regarding the interpretation of her "service."
The Association also asserts that reconsideration by the OPB may lead to a resolution of the grievance or, at least, a narrowing of the issues before the Board, and result in a more efficient use of the GSB's and the parties' resources. In its submission, this is a compelling labour relations reason to adjourn the GSB hearing. Finally, the Association asserts that a delay in proceeding with this grievance, pending a decision by the OPB, would not prejudice the Employer and may well benefit the parties.
The Employer opposes the motion to adjourn. It submits that the grievor's CSD calculation and the proper interpretation of Article 16 is squarely before the GSB, regardless of whatever decision is made by the OPB as to the grievor's ability to buy back the period in question. It submits that the OPB has no jurisdiction over the CSD/Article 16 issue and that this issue will remain and will be raised by the Association should the grievor be unsuccessful before the OPB. It submits that there is no efficiency to be gained and no real risk of inconsistent rulings. Further, to eliminate the possibility of any inconsistent ruling, it proposes that it raise the GSB's lack of jurisdiction on the pension issues as a preliminary matter.
The Employer further asserts that it will be prejudiced by the further delay. It notes that the time period in issue is already many years ago and its evidence is placed at further risk if there is more delay. It also cites a labour relations reason to proceed to a determination of the meaning of Article 16, rather than postpone that till the OPB rules on a related, but distinct, matter.
3. Decision
For the following reasons, the Association's motion to adjourn, sine die, pending reconsideration of the grievor's claim to buy back the period May 11, 1977 to November 5, 1979 by the OPB is denied.
At this point, no motion for reconsideration with the OPB has been filed by the grievor, nor is there any indication of how long such an appeal may take. Consequently, the request to adjourn is for an unknown and potentially very lengthy period of time.
The OPB's determination will not resolve one of the primary issues before the GSB – the interpretation of Article 16 and whether or not the grievor's CSD was properly calculated. The OPB has no jurisdiction over those issues. Even if there is an OPB determination favourable to the grievor, the CSD/Article 16 issue will remain. An OPB ruling might resolve the matter to the grievor's satisfaction, but there is no certainty that it will resolve the grievance in its entirety or even narrow the issues. Conversely, a determination of the CSD issue by the GSB may well resolve the pension issues.
Accordingly, I conclude that there is little efficiency to be gained by adjourning this matter pending reconsideration by the OPB. There is also a significant labour relations purpose to be served by proceeding with this already quite delayed matter.
Issued at Toronto this 1st day of August, 2002.