GSB#2008-2793, 2008-2794, 2008-2828, 2008-3084, 2008-3085, 2008-3155, 2008-3156,

2008-3157, 2008-3158

UNION#2008-0369-0368, 2008-0369-0369, 2008-0369-0375, 2008-0369-0399, 2008-0369-0400,

2008-0369-0403, 2008-0369-0404, 2008-0369-0405, 2008-0369-0406

IN THE MATTER OF AN ARBITRATION

Under

THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT

Before

THE GRIEVANCE SETTLEMENT BOARD

BETWEEN

Ontario Public Service Employees Union

(Pilger)

Union

• and -

The Crown in Right of Ontario

(Ministry of Community Safety and Correctional Services)

Employer

BEFORE

Randi H. Abramsky

Vice-Chair

FOR THE UNION

David Wright

Ryder Wright Blair & Holmes LLP

Barristers and Solicitors

FOR THE EMPLOYER

Len Hatzis

Ministry of Government Services

Counsel

HEARING

December 4, 2009.

Decision

1There are nine grievances before the Board in this matter, all alleging that the Ministry has violated the collective agreement by the actions taken against the grievors in response to an alleged “pattern of absences.” The particulars provided by the Union challenge not only the actions taken against the grievors, but the Ministry’s “policy” entitled “Culpable Absenteeism/Suspected Abuse of Sick Leave: Best Practices” as well.

2The Employer has raised a preliminary objection to the scope of the issues and evidence that may be led in this matter. Specifically, it asserts that the Union may not properly challenge the “Best Practices” document because it is not a formal “policy”, rule or regulation. It is more in the nature of human resources advice. In the alternative, it argues that its “Best Practices” document may only be challenged to the extent that it was applied to the individual grievances and not on a broader basis, because there was no Union or policy grievance filed in this case.

3Following the Employer’s submissions on the legal issues, counsel for the Union stated that the Union was not, in fact, challenging the “policy” per se, but only those aspects of it that were specifically applied to the grievors. A dispute arose, however, on the scope of the Board’s remedial jurisdiction. It was the Union’s submission that the Board could order a declaration beyond the individual grievors, while the Employer took the position that the only declaratory relief possible was a declaration in relation to the individual grievors.

4Having considered the grievances, the particulars, and the other documentary evidence provided, as well as the arguments of counsel and the case law, it is my view that the Union’s acknowledgement that it will not be challenging the “Best Practices” document as a “policy” per se and would limit its contentions to what was applied to the grievors obviates the need for a broader ruling on the Employer’s preliminary motion. The Union will be limited to those portions of the “Best Practices” document that are relevant to the actions taken against the grievors. I find that I need not rule on whether the Best Practices document is a policy, rule, regulation or simply advice. To the extent that it is relevant to the actions taken against the grievors, it is relevant evidence and may be addressed in the hearing.

5In regard to the dispute on the scope of the remedy, I find that issue to be premature at this point. It may not be necessary to rule on that issue, and if it does become an issue, I will rely on the submissions made on that point during the hearing on the preliminary matters.