GSB# 2004-2484

UNION# 2004-0727-0002

IN THE MATTER OF AN ARBITRATION

Under

THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT

Before

THE GRIEVANCE SETTLEMENT BOARD

BETWEEN

Ontario Public Service Employees Union (Stuart)

Union

• and -

The Crown in Right of Ontario (Ministry of Natural Resources)

Employer

BEFORE

Nimal V. Dissanayake

Vice-Chair

FOR THE UNION

Jim Gilbert Grievance Officer Ontario Public Service Employees Union

FOR THE EMPLOYER

Felix Lau Counsel Ministry of Government Services

HEARING

January 25, 2006.

Decision

A hearing was scheduled in Dryden, Ontario for January 25 and 26, 2006 to hear a grievance dated September 23, 2004 filed by Mr. Douglas Stuart. At the commencement of the hearing on January 25th, Mr. Gilbert informed the Board that based on information that had recently come to his attention, he was of the opinion that the parties had failed to provide appropriate third party notice and moved that the proceedings be adjourned to enable such notice to be given. Mr. Lau for the employer, disagreed and took the position that in the circumstances of this case third party notice was not required. The parties set out the pertinent facts by way of opening statements and made submissions on the issue of third party notice. Based on the same, I orally ruled that third party notice was not required and denied the union’s request for adjournment. The union requested that written reasons for the ruling be issued.

The material facts are as follows, On or about September 13, 2004, the grievor e-mailed the employer requesting a leave of absence without pay for a period of one year from October 4, 2004 to October 4, 2005. The purpose of the leave was to accept a one year employment contract with a First Nations organization in that period. The e-mail stated that if the leave of absence is denied, it should be treated as a letter of resignation effective October 1, 2004.

For purposes of this decision it suffices to note that the employer concluded that the requested leave of absence would not be approved. However, the employer approved for the grievor a leave of absence without pay for a shorter period, from November 1, 2004 to January 30, 2005. The grievor took the position that the leave as approved was of no use to him, and on October 1, 2004 submitted a further formal resignation effective the same day. In the meantime, he had filed the instant grievance dated September 23, 2004 alleging that the employer’s denial of the leave of absence for the requested one year period contravened agreement.

Following the grievor’s resignation, the employer posted and filled his position. The present dispute is about that incumbent’s entitlement to third party notice in the present proceeding.

In this arbitration, the union is seeking the following remedies.

(1) A declaration that the collective agreement was violated by the employer by denying the requested leave.

(2) An order that the employer reinstate the grievor in the position from which he resigned.

(3) An order that the employer approve the leave of absence without pay for the one year period as requested by the grievor.

Based on the foregoing, the union contends that the incumbent, who currently occupies the grievor’ previous position, is entitled to third party notice. He referred me to a decision dated September 14, 2005 in Re Granholm, 2003-2259 (Petryshen) which he submitted was on “all fours” with the instant case. He took the position that the principle in Re Blake required me to follow the Re Granholm decision. Mr. Gilbert relied on a statement made by Vice-Char Petryshen to the following effect, “In my view, there is little doubt that the union seeks a process which is ultimately designed to secure the Maintenance Mechanic position for Mr. Granholm, thereby affecting the rights of Mr. Hickin under the collective agreement.”

He argued that similarly in the instant case, the grievor was seeking to return to his former job, from which he had resigned. If he is awarded that remedy, the incumbents collective agreement rights would be affected.

Mr. Lau for the employer submitted that entitlement to third party notice depended on the facts of each case and that Re Granholm is distinguishable from the present case as it was treated by the Board as a job competition case.

It is settled law that in labour arbitration, third party notice is required in appropriate circumstances. See, Hoogendoorn and Greening metal products & Screening Equipment Co., 1967 CanLII 20 (SCC), 65 D.L.R. (2d) 641 (S.C.C.); Bradley and Ottawa Professional Fire Fighters Asso., 1967 CanLII 160 (ON CA), 63 D.L.R. (2d) 376 (Ont. Ct. of Appeal); and Re Canadian Broadcasting Corporation, 2005 CanLII 94123 (CA LA), 137 L.A.C. (4th) 343 (M.G. Picher). However, the law is clear that third party notice is not required in every case where a grievor is seeking to return to a particular position, resulting in the displacement of an incumbent. Re Granholm does not make such a proposition.

The statement from Re Granholm relied upon by Mr. Gilbert is contained in a decision Vice-Chair Petryshen characterises as a “bottom line” decision. In a subsequent decision on the merits of Mr. Granholm’s grievance (Re Granholm, 2003-2259, decision dated November 8, 2005) the basis for Mr. Petryshen’s bottom line decision becomes clearer. Thus at p. 4 he wrote:

Prior to the September hearing dates, the parties addressed by way of written submissions the issue of whether Mr. J. Hickin, the successful applicant who is still employed as the Maintenance mechanic, was entitled to third party notice of the hearing. In essence, the Union argued that he was not entitled to notice because the issue at this stage of the proceeding only related to whether the Employer contravened a settlement, a matter in which Mr. Hickin did not have an interest. In a decision dated September 9, 2005, I concluded that Mr. Hickin was entitled to third party notice in the circumstances. The Union’s goal is to challenge the validity of the competition in which Mr. Hickin secured the Maintenance Mechanic position and to ultimately secure that position for Mr. Granholm. Given the remedy the Union is seeking, it was my view that Mr. Hickin had a legal interest in the proceeding and was entitled to notice. Mr. Hickin attended both days of hearing as an observer only, electing not to participate.

(emphasis added)

I agree with Mr. Lau that Re Granholm is distinguishable from the present case. In that case, the grievor was claiming that he had a right to be interviewed for the competition in which the incumbent was the successful candidate. By way of remedy, he was seeking an order that the employer interview him. Therefore, if his grievance succeeded, he would be interviewed, and if he cleared that hurdle, would have gone on to participate in the subsequent steps in the competition. That would necessarily have bought him into competition with the incumbent. In those circumstances, the board quite correctly stated that the union was challenging the validity of the competition, through which the incumbent was appointed to the position. That triggered the need for third party notice.

In contrast, here the union is not challenging the competition through which the incumbent was appointed to the grievor’s former position. Nor is the grievor seeking participation in that competition. The union is seeking to invalidate the grievor’s resignation from his former position. The union is claiming in effect that if the employer had complied with the collective agreement and approved the one year leave of absence without pay, the grievor would not have resigned. Therefore, what is under scrutiny in the present litigation is the interaction and the legal rights between the grievor and the employer. The competition process in which the incumbent successfully participated in is not under review in this proceeding. Therefore, the circumstances here are similar to a case where a grievor is challenging the lawfulness of his termination by the employer. If successful, in both situations, the finding in effect is that had the employer complied with the collective agreement, the grievor would not have vacated his position in the first place. It is universally accepted that an incumbent is not entitled to third party notice in a proceeding in which the grievor is seeking reinstatement following his termination. See, Re National Arts Centre Corp., 1981 CanLII 4409 (ON LA), 30 L.A.C. (2d) 431 (Shime). The same reasoning leads me to the conclusion that no third party notice is required in the present circumstances where the grievor is seeking reinstatement on the grounds that his resignation was not of force or effect.

Dated this 1st day of February 2006 at Toronto, Ontario