GSB#2008-3394, 2009-1599, 2009-1600, 2009-2202
UNION#2008-0154-0011, 2008-0154-0014, 2008-0154-0015, 2009-0154-0014
IN THE MATTER OF AN ARBITRATION
Under
THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT
Before
THE GRIEVANCE SETTLEMENT BOARD
BETWEEN
Ontario Public Service Employees Union (Walsh-Gagnon)
Union
- and -
The Crown in Right of Ontario (Ministry of Labour)
Employer
BEFORE
M.V. Watters
Vice-Chair
FOR THE UNION
Mihad Fahmy Peggy Smith Barristers & Solicitors Counsel
FOR THE EMPLOYER
Cathy Phan Ministry of Government Services Legal Services Branch Counsel
HEARING
January 11, 2011.
Decision
1At the outset of the hearing, the parties filed the following Agreed Statement of Facts:
“ 1. The Grievor has been employed as a Worker Advisor with the Office of the Worker Advisor-Windsor in the Ministry of Labour since May 22, 2002.
The Grievor became a classified Full Time Employee on January 29, 2003.
The Grievor reported a claim with the Workplace Safety and Insurance Board for gradual onset of neck, right shoulder, bilateral elbow, and bilateral wrist pains due to the nature of job specifically the amount of writing and note taking that was required. An accident date of February 3, 2003 was established.
A NEL assessment took place in July 2007 and the Grievor was assessed a permanent impairment for bilateral carpal tunnel syndrome and bilateral cubital tunnel syndrome. This resulted in a 24% non-economic loss award.
Between October 2007 and March 2008 the Grievor was on sick leave for her work related injury. During this period she utilized her STSP credits without topping up. This meant that between October 2007 and March 2008 she was receiving 75% of her full time salary.
Between March 2008 and July 2008, the Grievor returned to work on modified duties—working 3 hours and 38 minutes, with a caseload reduced to half. During this period of time, the Grievor utilized her sick leave (at 75% of her pay) for the remainder of the workday until they were exhausted in July 2008.
On July 10, 2008 the Employer received a medical report from Dr. James H. Roth stating that the arrangement of working half days was a “permanent restriction”.
On July 15, 2008 the Grievor exhausted her STSP credits.
In July 16, 2008, the Employer converted Ms. Walsh-Gagnon’s status to that of Regular Part-Time.
On August 18, 2008 the Grievor filed a grievance regarding the conversion and resulting changes to her pay and benefits.
On September 24, 2008 the Grievor filed a grievance regarding the conversion and resulting changes to her pay and benefits.
On October 1, 2008 the Grievor filed a grievance regarding her pay.
On November 17, 2008 the Grievor’s status was changed back to Full-Time pending an Independent Medical Examination.
The Grievor was on sick leave between January 12, 2009 and April 3, 2009 for an unrelated injury. During this period the Grievor utilized her STSP credits and as a result was receiving 75% of her Part-Time salary.
On May 7, 2009 the Grievor underwent an Independent Medical Examination. The report indicated that the Grievor’s restrictions of working 3 hours and 38 minutes per day were permanent.
On June 26, 2009 the Grievor was informed by way of letter from her Manager, Sue Finch that the Employer could not (sic.) longer accommodate her in her current position of Worker Advisor. As a result she would be entered into the Corporate Health Reassignment Program. The Employer continues to search for an alternative position through the Corporate Health Reassignment process to the present day.
Further, in the same letter the Employer informed the Grievor that effective July 10, 2009 her status would be converted to Permanent Part-Time.
On July 17, 2009 the Grievor filed a grievance regarding her conversion to Part Time status, and resulting changes to her pay and benefits.
The Grievor was granted full Loss of Earnings (LOE) benefits from October 16, 2007 until March 3, 2008 by WSIAT on September 17, 2009.
The Grievor was granted partial LOE benefits as of March 3, 2008 on the basis of her ability to work 3.5 hours per day. This LOE benefits continues to the present day.
In June of 2010, the Grievor was informed that she would now be assigned claim files and merit reviews to be handled during her 3 hours and 38 minutes of work. The Grievor was also informed that the WSIB had now approved accommodating her to conduct half-day hearings.
Currently, the Grievor’s benefits are as follows:
i. Dental – The Employer is contributing 50% of the monthly premium for Dental Plan as per Article 68.4 of the Collective Agreement. The Grievor is currently paying the balance of the monthly premium
ii. Supplementary Health and Hospital Insurance-
The Employer is contributing 50% of the monthly premium for Supplementary Health and Hospital Insurance as per Article 67.1.1 of the Collective Agreement. The Grievor is currently paying the balance of the monthly premium
iii. LTIP – The Employer is currently paying 100% of the monthly premium as per Article 70.1 of the Collective Agreement.
iv. Basic Life – The Employer is currently paying 100% of the monthly premium as per Article 65.1 of the Collective Agreement. ”
2The parties further agree that: the grievor applied for Long Term Income Protection (LTIP) benefits on May 20, 2008; her application was denied by the insurance carrier on August 7, 2008; and that the issue of the grievor’s entitlement to LTIP benefits is presently under appeal to the Joint Insurance Benefits Review Committee (JIBRC).
3The grievances referenced above in the Agreed Statement of Facts challenge the Employer’s decision to change the grievor’s status from full-time to part-time. Additionally, they complain about the level of pay and benefits received by the grievor over the period material to this dispute. More specifically, the grievor asserts, inter alia, that the Employer is contractually bound by article 42.3 of the collective agreement to continue to make pension contributions on her behalf and at no cost to her. Article 42.3 reads:
The Employer will continue to make pension contributions and premium payments for the Dental Plan and for Supplementary Health and Hospital on behalf of the employee, at no cost to the employee, while the employee receives or is qualified to receive L.T.I.P. benefits under the plan, unless the employee is supplementing a Workplace Safety and Insurance award.
4The Employer advanced a preliminary objection relating to my jurisdiction to address the grievor’s entitlement to the continuation of pension contributions provided for by article 42.3 of the collective agreement. The Union, in response, asserted that I do possess the requisite jurisdiction to adjudicate the issue. The parties’ positions in respect of this preliminary matter are set out in greater detail below.
5The other provisions of the collective agreement relevant to the resolution of the preliminary objection are as follows:
22.9.1 INSURED BENEFITS GRIEVANCE
22.9.1 An allegation that the Employer has not provided an insured benefit that has been contracted for in this Agreement shall be pursued as a Union grievance filed under Article 22.13 (Union Grievance).
22.9.2 Any other complaint or difference shall be referred to the Claims Review Subcommittee of Joint Insurance Benefits Review Committee (JIBRC), established under Appendix 4 (Joint Insurance Benefits Review Committee), for resolution.
ARTICLE 43 – JOINT INSURANCE BENEFITS REVIEW COMMITTEE
43.1 The parties agree to continue the Joint Insurance Benefits Review Committee. The terms of reference are set out in Appendix 4 (Joint Insurance Benefits Review Committee) attached.
APPENDIX 4 – JOINT INSURANCE BENEFITS REVIEW COMMITTEE
(6) Claims Review Subcommittee
(a) There shall be a subcommittee whose mandate is to review,
and make decisions on, complaints or differences involving the denial of insured benefits under the Central Collective Agreement, when such issues have not been resolved through the existing administrative procedures, save and except a complaint or difference arising under Article 22.9.1 (Insured Benefits Grievance) of the Central Collective Agreement. The subcommittee shall be composed of two (2) representatives selected by the Employer, two (2) representatives selected by OPSEU, and an independent third party who is agreed to by both parties.
(d) Decisions of the subcommittee are final and binding.
6Counsel for the Employer noted that the Employer’s obligation under article 42.3 to continue pension contributions on behalf of the employee, and at no cost to them, is conditional upon that employee receiving or being qualified to receive LTIP benefits. Counsel argued that, in the context of the facts and circumstances of this case, this Vice-Chair is being asked, in substance, to determine whether the grievor is qualified to receive LTIP benefits. It was her submission that I lack the jurisdiction to make such a determination, as the parties have bestowed exclusive jurisdiction over such matters to the JIBRC. Counsel referenced article 22.9.2 which requires any complaint or difference about insured benefits, other than one falling under article 22.9.1, to be referred to the Claims Review Subcommittee for resolution. She further observed that pursuant to Appendix 4, any decisions made by the Subcommittee in respect of complaints or differences involving the denial of insured benefits are final and binding. On her analysis, the parties have provided for an alternate process for disputes of this nature and one that is mandatory. Counsel maintained, as a consequence, that I lack jurisdiction to hear any part of the grievance relating to the grievor’s eligibility to receive LTIP benefits. Indeed, she suggested that the grievor, in this instance, is “forum shopping” in the sense she is attempting to have the same issue heard by two (2) bodies, namely the JIBRC and the Grievance Settlement Board (GSB).
7The Employer relies on Re OPSEU (Dales) and the Ministry of Correctional Services (January 15, 2002) GSB#1280/00, 1420/00 (Mikus) in support of the above position.
8The grievor in Dales was hired as an unclassified Nurse II at the Guelph Correctional Centre in January of 1994. She went off work in September, 1996 due to a workplace injury for which she received Workplace Safety and Insurance Board benefits. Except for a work hardening program in September and October of 1997, the grievor had not returned to work as of the date of the GSB’s Decision. Her work status, however, was affected by the settlement of a Union grievance in October of 2000. Pursuant to the settlement, the grievor’s status was converted to classified employee effective September 30, 1998.
9In the Fall of 2000, the grievor in Dales was advised that she had reached maximum medical recovery. At that point, she proceeded to submit an application for LTIP benefits in accordance with the terms of the collective agreement. The grievor was subsequently advised by the insurance carrier in November, 2000 that she was ineligible for benefits because she had been an unclassified employee at the time of her injury and was not actively at work when she became a classified employee. Upon being so advised, the grievor filed two (2) grievances. In the first grievance, she claimed that the Employer had failed to pay her premiums for LTIP, as required by article 41.4 of the collective agreement. The grievor asked for full restitution of premiums retroactive to September, 1998 to enable her to be eligible for LTIP benefits. In the second grievance, the grievor alleged that the Employer was in violation of article 42.2.3 and asked for full restitution of all lost income.
10On the initial day of hearing in Dales, the Employer, as here, raised a preliminary objection as to the jurisdiction of the GSB to address the issues. It was the position of the Employer that jurisdiction to hear a grievance regarding the denial of insured benefits was specifically reserved by the parties to the Claims Review Subcommittee of JIBRC. This position was, ultimately, accepted by Vice-Chair L. Mikus. Her reasoning is captured in the following two (2) paragraphs of the Decision:
“The question being asked is whether Article 22.9 confers
exclusive jurisdiction on JIBRC to deal with all questions concerning insured benefits. I am of the opinion that was what the parties intended when they negotiated Article 22.9. I begin by noting that the references to the resolution of disputes regarding insured benefits is found within the Grievance Procedure itself. That signifies, in my opinion, that the parties put their minds to the processing of these unique complaints and decided they should be dealt with outside of the usual process. Secondly, the parties were careful to separate, within Article 22.9, the two situations it felt might arise under this provision. They envisioned general complaints about the provision of benefits to the bargaining unit as a whole and decided that it would be the Union who would carry the burden of asserting and defending those claims. They also knew that individual complaints would arise about eligibility for benefits and decided that all of those other complaints would be dealt with by JIBRC. To further signify the parties’ view on the uniqueness of these claims, the parties set up, within JIBRC, a Claims Review Subcommittee to deal with issue of individual entitlement. Finally, to further emphasize their intentions, the parties’ adopted language that would clearly show their intentions. They stated that all general complaints shall be pursued as Unions grievances and that “any other complaint or difference shall be referred to the Claims Review Subcommittee…”. All of that leads me to the inescapable conclusion that the parties aim was to provide an alternative route for the resolution of any differences arising out of the provision of insured benefits to its members and that alternative resolution process is mandatory.
That takes us back to the instant grievance. The grievances allege that the Employer has violated Article 41 and 42 of the Collective Agreement in that the Employer has failed to pay the grievor’s premiums for LTIP benefits. What that translates to in real terms though, is whether the grievor is or was eligible for LTIP benefits is the first instance. If she is ineligible according to the provisions of the insurance plan negotiated by the parties, it might be that the Employer has or has had, no obligation to pay any premiums on her behalf. On the other hand, if she is ultimately found to be eligible for benefits, and if the employer has failed to pay benefits on her behalf, her claims under Article 41 and 42 have merit. All of that is subject to an initial finding on her eligibility. That is the very difference or claim the parties intended to be heard under Article 22.9.
Any claim therefore for benefits, including the payment of premiums, that depends on a finding of eligibility must be placed before JIBRC and, if necessary, before the Claims Review Subcommittee.”
(pages 7-8)
11While Vice-Chair Mikus found that she lacked jurisdiction to determine whether the grievor was eligible to receive LTIP benefits, she concluded that she did have jurisdiction to hear the grievances in so far as they related to allegations of an infringement of the grievor’s right to be free from discrimination on the basis of handicap under the collective agreement and/or the Human Rights Code. The Vice-Chair suggested, however, that it might be preferable to have such issues addressed by the Claims Review Subcommittee. The Decision reads as follows on this aspect of the case:
“….the JIBRC and the Claims Review Subcommittee have similar and concurrent jurisdiction to determine these issue (sic.) during a hearing on a claim for benefits under Appendix 4 of the Collective Agreement. Given my comments on the intentions of the parties to confine issues regarding insured benefits to the procedures under Article 22.9, it seems to me that would be the preferred route for an allegation of discrimination in the provision and/or denial of these benefits. That would provide for a consideration of the allegations before the very committees and subcommittees that the parties have chosen to decide these issues.”
(page 9)
12Counsel for the present Employer argued that the approach taken in Dales should similarly apply here. Counsel observed that the grievor alleges a denial on the part of the Employer to make the pension contributions required by article 42.3 of the collective agreement. She noted that the issue, under the language of the article, ultimately turns on whether “the employee receives or is qualified to receive L.T.I.P. benefits under the plan”. It was her submission the parties intended, through the collective agreement language agreed to, that disputes of this nature would be referred to the Claims Review Subcommittee of the JIBRC for final and binding resolution.
13Counsel for the Union, in response, argued that the issue being advanced under Article 42.3 of the collective agreement is not the grievor’s entitlement to LTIP benefits. Rather, the grievor relies on this contractual provision in support of a claim that the Employer is bound there under to continue to make pension contributions on her behalf. In counsel’s words, qualification for LTIP is merely “a stepping stone” to establish entitlement to those contributions. From the perspective of the Union, this is not the type of dispute which falls within the jurisdiction of the JIBRC. Counsel emphasized that the grievance does not contest a denial of insurance benefits but, instead, relates to pension contributions, a subject which does not fall within the jurisdiction of the Claims Review Subcommittee. She submitted that this serves to distinguish the present case from Dales where, on her reading, the claim was clearly for LTIP benefits. Ultimately, it is the position of the Union that I have the requisite jurisdiction to hear and determine the issue relating to the continuation of pension contributions.
14The Union relies on Re OPSEU (Dupuis) and the Ministry of Correctional Services (June 23, 1989) GSB#1335/86 (Knopf) in support of its position.
15In Dupuis, the issue related to the Employer’s obligation to make pension contributions for an employee who had been absent for more than six (6) months while in receipt of Workers’ Compensation benefits. The grievor, in that instance, was deemed by the Workers’ Compensation Board (WCB) to be “temporarily totally disabled”. As here, the grievor in Dupuis wanted to benefit from the Employer making pension contributions under article 42.3 of the collective agreement. I note that the wording of article 42.3 was then substantially similar to that found in the current provision. The grievor in Dupuis never applied for LTIP benefits, as there was no financial reason or motivation for doing so. Simply put, due to the fact LTIP was then set off from WCB receipts pursuant to article 42.2.2, the grievor would not have received any actual money from LTIP even if he had been approved by the carrier. While it is not entirely clear from the facts, it appears that the Employer was not prepared to make the pension contributions in question without an application for LTIP in order to determine if the grievor was eligible or qualified to receive same. The grievor refused to assist the Employer, by completing an application form and submitting a physician’s statement, when the latter attempted to apply for LTIP on his behalf.
16In Dupuis, the Union argued that the Employer had an obligation under article 42.3 to determine if an employee was “qualified” to receive LTIP benefits. It noted that the Employer was financially responsible for the payment of pension contributions and should, therefore, have the obligation to decide who was eligible to receive the payment. The Union further submitted that the GSB had jurisdiction to determine whether the Employer properly denied the benefit under article 42.3 and to order it to pay such benefit. Additionally, the Union there maintained that the jurisdiction of the JIBRC was not being infringed, as the claim to pension contributions did not involve an insurance benefit.
17The Employer in Dupuis argued that article 42.3, as then worded, created an obligation on the JIBRC to determine who was qualified for the plan and that the Employer was not in a position to determine such qualifications. It emphasized that Ministry personnel were not medical experts and should not be obliged to determine questions relating to medical disability.
18After considering the submissions of the parties, the panel of the GSB, chaired by Vice-Chair P. Knopf, held that the Employer, in the circumstances, was contractually obligated to determine if the grievor was qualified to receive LTIP and, if so, to make the pension contributions in question. The relevant passages from the Decision read:
“All Article 42.3 seems to require is that the employee be
qualified to receive L.T.I.P. benefits. It does not specify that he must apply and be approved by the carrier. It does not specify that the application even be acceptable to the carrier. The employee need only be in actual receipt of L.T.I.P. or be “qualified” to receive the benefits under the Plan.
Who then is to determine whether an employee is qualified to receive the benefits under the Plan if no application is made? The insurer has no obligation to make the payments under Article 42.3, therefore has no interest in monitoring the eligibility. The obligation to make the payments is solely upon the Employer. Thus, since the collective agreement does not specify otherwise, the Employer has the right to determine if the employee is “qualified to receive L.T.I.P. benefits under the Plan.” Clearly, in determining that question of qualification, the Employer will have reference to Article 42.2.4 and to the definition of total disability under Confederation Life’s L.T.I.P. scheme.
In short, the Employer must make pension contributions for employees receiving L.T.I.P. If an employee chooses not to apply for L.T.I.P., but is otherwise qualified to receive the benefits available under the L.T.I.P. Plan because of total disability within the meaning of that Plan, the Employer must still make those contributions. Nothing requires the employee to apply for L.T.I.P. or to have been approved for coverage “in principle” by the insurer. Thus, the Employer has the right and the obligation to determine that qualification. When the Employer makes the enquiries to determine if an employee meets the requirement of the collective agreement and the Plan, then the Employer is obligated to pay the contributions when the qualifications are deemed to be met.
We do not agree that this conclusion takes away any rights of access to the Joint Insurance Benefits Review Committee as the Ministry suggests. The simply reason for this is that the benefit being claimed is not an insurance benefits that would be within the scope of the jurisdiction of that Committee in any event”
(pages 8-9)
19Counsel for the Union asked that I follow the approach taken in Dupuis and adjudicate the issue relating to the Employer’s obligation under article 42.3 to continue to make pension contributions on the grievor’s behalf, and at no cost to her. In the alternative, and in the event I find that I lack the requisite jurisdiction to consider the grievor’s qualifications for LTIP, counsel submitted that the matter should be deferred until such time as the Claims Review Subcommittee issues its decision in respect of the grievor’s application for such benefit.
20In reply, counsel for the Employer asked me to reject the Union’s argument that the substance of the case relates to pension contributions. Counsel observed that in order to assess whether the grievor is entitled to the pension contributions claimed, I must first determine if the grievor is qualified to receive LTIP. She reiterated that such question falls within the exclusive mandate of the Claims Review Subcommittee.
21Counsel for the Employer further submitted that the circumstances which existed in Dupuis are distinguishable from those present in this case. She observed that in Dupuis, there was no application for LTIP benefits whereas here an unsuccessful application is being appealed to the JIBRC. Counsel stressed that the decision on appeal will ultimately determine if the grievor is entitled to the pension contributions claimed. In her submission, this same question should not be before two (2) forums, given the potential for conflicting decisions. Lastly, counsel objected to any deferral of this matter pending a decision by the JIBRC. She noted that the decisions of the latter body are final and binding and argued that it is beyond my jurisdiction to determine if the JIBRC “got it right or wrong”.
22In this case there has been an application for LTIP by the grievor, a denial of the application by the insurance carrier, and a subsequent appeal of that decision to the JIBRC, which remains outstanding. The appeal will determine whether the grievor is entitled and qualified to receive LTIP benefits. It will also directly answer the issue raised in this proceeding, namely, whether the Employer has to continue making pension contributions on behalf of the grievor, at no cost to her. This latter question will be determined on the basis of an issue properly before the JIBRC under article 22.9.2 and Appendix 4 of the collective agreement, that is, is the grievor qualified to receive LTIP benefits. Put another way, the issue will be resolved within the context of a complaint or difference involving the denial of an insured benefit.
23It is apparent that the jurisdiction of the JIBRC has already been invoked by the filing of the appeal against the carrier’s denial of the initial application for LTIP benefits. As part of the appeal, and in the exercise of its jurisdiction, the Claims Review Subcommittee of JIBRC will have to make a finding as to the grievor’s qualifications to receive LTIP. This finding, as stated above, will determine whether the grievor is entitled to the pension contributions claimed. In my judgment, the issue falls within the jurisdiction of the JIBRC, and not the GSB, as the ultimate question, which will serve to resolve the dispute, is one within the mandate the parties have chosen to delegate to the JIBRC.
24I think it of some import that the Claims Review Subcommittee may access impartial medical consultants for advice on specific illnesses and disabilities. The provision for such access likely reflects the understanding of the parties that medical expertise not available to them, or to the GSB for that matter, can be helpful to inform both the process and the final result.
25I am satisfied that the issue raised in this proceeding falls within the jurisdiction of the JIBRC. To reiterate, the threshold question which is central to this grievance is one that falls within the scope of authority accorded to the JIBRC by the parties. In this regard, I accept that recourse to its process, rather than to the grievance procedure, is mandatory under the terms of the collective agreement. This conclusion precludes the possibility of inconsistent decisions being issued by the JIBRC and the GSB, with the resulting adverse consequences to the parties themselves and to the reputation of the processes put in place by them to resolve these types of workplace disputes.
26The facts in Dales were similar to those present in this case, in the sense that the grievor there applied for LTIP benefits and subsequently received notice from the carrier that she was ineligible for same. The grievances in Dales, when read together and in context, essentially asserted an entitlement to LTIP benefits. As mentioned, Vice-Chair Mikus held that she was without jurisdiction to hear the grievances as they raised issues squarely within the jurisdiction of the JIBRC. In my view, the present grievance raises the same issue as in Dales, that is, whether the grievor is qualified to receive LTIP. This issue must first be addressed and resolved in order to determine whether the grievor is entitled to the pension contributions referenced in article 42.3.
27I acknowledge that Dales was a much clearer and simpler case, given that the issue raised by the grievances was just the eligibility of the grievor for LTIP benefits. Here, the same issue has to be addressed for purposes of resolving a second and related question pertaining to the grievor’s right to pension contributions payable by the Employer. Notwithstanding this difference, a fundamental question is common to both cases, namely, the grievors’ entitlement or qualifications to receive LTIP benefits. In Dales, the answer to the question would determine if the grievor would receive LTIP whereas, here, it will determine the grievor’s entitlement to pension contributions. In the final analysis, I think this is a distinction without any meaningful difference given that the result in both cases was, and is, dependant upon the response to the same question, and one falling clearly within the jurisdiction of the JIBRC to answer. I recognize that the issue of pension contributions, per se, does not fall within that jurisdiction. However, the issue is captured by that jurisdiction in a case such as this where entitlement to the Employer contributions is conditional on a finding that the employee is qualified for LTIP under the terms of the plan.
28On my analysis, the situation here is clearly distinguishable from the circumstances existing in Dupuis. In the latter case, there was no application made for LTIP, as the grievor was already in receipt of a superior benefit. The grievor, nevertheless, wanted to receive the continuation of pension contributions provided for by article 42.3. In the absence of an application for LTIP, the only way for the grievor to have this entitlement assessed was for the Employer itself to make a determination whether he was qualified to receive LTIP under the plan. Without such a determination, the grievor would not be able to access the contributions. When viewed in this context, it is understandable why the panel of the GSB found as they did. On my reading, the language used in the Decision evidences that they were clearly influenced by the fact the grievor had made no application for LTIP and, as a consequence, could not look to the JIBRC for a resolution. Without doubt, in the absence of a complaint or difference around an insured benefit, the JIBRC and the Claims Review Subcommittee were without jurisdiction.
29While the claim of the grievor in Dupuis and that of the present grievor are identical, the factual circumstances are different. In the former case, the grievor would be deprived of any opportunity to receive the pension contributions without the Employer making the required assessment. That is not the situation here, as the matter will be addressed by the result of the appeal presently before the JIBRC. I also note that in Dupuis, there was no possibility for the issuance of conflicting or inconsistent decisions on the same question. As mentioned earlier, that potential, with all of the negative consequences, would exist here if I was to accept the Union’s position. In summary, I conclude that Dupuis does not apply to a situation, such as the one now before me, where there has been an application filed for LTIP, a denial of the application by the insurance carrier, and a subsequent appeal filed with the JIBRC.
30As stated, the Union argued, in the alternative, that this matter should be deferred pending a determination from the JIBRC. I have not been persuaded to accept this submission, as I do not see the need for a deferral given that the decision of the Claims Review Subcommittee will very likely resolve the question of entitlement to pension contributions. Additionally, I accept the argument made by counsel for the Employer to the effect that the GSB does not sit as an appellate body in respect of decisions made by the JIBRC.
31For all of the above reasons, I lack jurisdiction to adjudicate this aspect of the grievor’s complaints. The balance of the issues raised by the grievances will be addressed on the scheduled hearing dates.
Dated at Toronto this 28th day of January 2011.