GSB# 2006-0659, 2006-0929

UNION# 2006-0546-0022, 2006-0546-0030

IN THE MATTER OF AN ARBITRATION

Under

THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT

Before

THE GRIEVANCE SETTLEMENT BOARD

BETWEEN

Ontario Public Service Employees Union (Gauntlett)

Union

• and -

The Crown in Right of Ontario (Ministry of Finance)

Employer

BEFORE

Owen V. Gray

Vice-Chair

FOR THE UNION

Gavin Leeb Barrister and Solicitor

FOR THE EMPLOYER

Michelle Dobranowski Counsel Ministry of Government Services

HEARING

June 4, 2007.

Decision

1The parties have agreed that these two grievances be heard together. The grievance dated March 17, 2006 (Board File 2006-0659) (“the competitions grievance”) alleges:

I have been unjustly denied access to the position of RTO Administrative Support Clerk under competition: 2675, 6276 and 6240.

This act is a violation of sections 6.3 and 3.1 of the collective agreement.

This competitions grievance concerns three job competitions – two (numbers 6275 and 6276) for positions in the ministry’s Retail Sales Tax office in Mississauga and one (number 6240) for positions in its Retail Sales Tax office in North York. The grievance dated April 27, 2006 (Board File 2006-0929) (“the non-renewal grievance”) alleges:

Statement of Grievance - Michelle Jeanes & Mariola Pachura unjustly discriminated against me when they refused to re-new my contract.

This act is a violation of sections 3.1 of the collective agreement.

The relief sought in both grievances is

Appointment to the RTO Administrative Support Clerk position in North York or Mississauga.

2The employer asserts that the competitions grievance, as elaborated by the union at stage 2 of the grievance procedure, raises no arbitrable issue concerning the competition for positions at the North York office. The union disputes this. Resolution of this dispute would involve assessing the meaning and effect of things said or not said in a step 2 grievance meeting and in correspondence between counsel after the grievance was referred to arbitration.

3In this context the parties have agreed that the merits of these grievances should be addressed in two phases. In the first phase, evidence and argument will be heard concerning whether the conduct or outcome of the competitions for positions in the Mississauga office or the non-renewal of the grievor’s contract position in the Mississauga office involved a breach by the employer of any obligation under the collective agreement. After those issues are decided, in the second phase evidence and argument will be heard concerning any issues that the parties choose to pursue concerning the competition for positions at the North York office, including any of the issues referred to in the preceding paragraph concerning the scope or arbitrability of the grievance in that respect.

4The parties have further agreed that evidence heard in the first phase may be relied on in the second phase, but witnesses called in the first phase will not testify or be cross-examined concerning matters relevant only to issues that may arise in the second phase. Accordingly, before a party closes its case on the merits during the second phase the opposite party may require that it recall any witness it called during the first phase, so that that witness may be cross-examined concerning matters relevant to the second phase.

5I hereby confirm that the hearing of these matters will proceed in accordance with the agreement recited in the two preceding paragraphs.