GSB#2002-2468

UNION#2002-0582-0069

IN THE MATTER OF AN ARBITRATION

Under

THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT

Before

THE GRIEVANCE SETTLEMENT BOARD

BETWEEN

Ontario Public Service Employees Union (Shipticki)

Union

• and -

The Crown in Right of Ontario (Ministry of Community Safety and Correctional Services)

Employer

BEFORE

Ken Petryshen

Vice-Chair

FOR THE UNION

Tim Hannigan Ryder Wright Blair & Holmes LLP Barristers and Solicitors

FOR THE EMPLOYER

Peter Dailleboust Ministry of Government Services Legal Services Branch Counsel

HEARING

July 12, 2010.

Decision

1I have before me a grouping of twelve individual grievances filed by Correctional Officers (“COs”). The majority of the grievances were filed in 2004. One of the grievances in the package is dated October 23, 2002, and was filed by Ms. T. Shipticki. The Employer requests that I dismiss Ms. Shipticki’s grievance on the basis of res judicata. In making this request, the Employer relies on a decision of Vice-Chair Briggs dated June 8, 2005 (“the Briggs decision”) in which she dismissed a grievance filed by Ms. Shipticki dated June 20, 2002. For ease of reference I will refer to the grievance before Vice-Chair Briggs as grievance #1 and the grievance before me as grievance #2.

2Ms. Shipticki was surplussed in 2000 while employed as a CO2 at the Toronto East Detention Centre (“TEDC”). Her last day at work at the TEDC was August 22, 2000. In December of 2000, Ms. Shipticki applied to be rehired at the TEDC and indicated that she was available to start on February 22, 2001. On January 31, 2001, the Ministry offered Ms. Shipticki the opportunity to return to the TEDC as an unclassified CO, with a start date of February 26, 2001. She accepted the offer and returned to work at the TEDC on February 26, 2001, which was just over 6 months from her date of separation from the Ministry. Upon her return, Ms. Shipticki was classified as a CO1 with a rate of pay at the first step of that classification.

3The Employer has a Pay on Assignment Operating Policy and a Re-Hire Policy-Correctional Officers. Without reviewing them in detail, the first policy provides that new employees must be paid at the minimum rate of the salary range of their classification, although exceptions may be justified where “candidates have better-than-average experience and qualifications”. The second policy indicates that the treatment of a re-hired CO depends on how long the individual was separated from the Ministry. The CO will be reappointed to the same class and salary at time of separation if re-employed within 6 months of separation. If re-employed within 6-24 months of separation, the CO will be reappointed to the minimum salary rate of the applicable classification.

4In grievance #1 (June 20, 2002), Ms. Shipticki claims that the Employer contravened articles 31.2, 31.5 and 20.2.5 of the collective agreement. In grievance #2 (October 23, 2002), she complains, in effect, that management discriminated against her by not placing her at the same pay level upon re-hire as other COs who were rehired in similar circumstances. It can generally be said of both grievances that Ms. Shipticki is claiming that she should have been paid at a higher level when she was rehired. She seeks the same remedy in both grievances, namely to be fully compensated for her losses.

5A stage 2 grievance meeting took place for grievance #1 on July 29, 2002. The claim at the meeting was that Ms. Shipticki should have been at the rate of pay of the CO2 classification upon re-hire, and not at the minimum rate of the CO1 classification. On August 6, 2002, the Employer agreed to place her at the starting rate of the CO2 classification, retroactive to her date of re-hire. I note that this result appears to be consistent with the treatment Ms. Shipticki should have received according to the Re-Hire Policy. However, this response by the Employer did not resolve grievance #1 and it was brought before Vice-Chair Briggs.

6Vice-Chair Briggs sets out the context within which she was dealing with grievance #1. Following the Ministry’s efforts to restructure and decommission institutions, grievances were filed and Minutes of Settlement were eventually executed. Recognizing that transition disputes may arise, the parties agreed that Vice-Chair Briggs would be seized with “resolving any disputes that arise from the implementation of this agreement”. In addressing transition disputes, Vice-Chair Briggs had each party provide her with a statement of facts and their submissions. This expedited process was intended to address and resolve disputes in a timely manner. At the expedited hearing before Vice-Chair Briggs, grievance #1 was handled by a Grievance Officer and defended by a Staff Relations Officer for the Employer.

7The Union raised one issue before Vice-Chair Briggs. It took the position that Ms. Shipticki’s actual date of re-hire was February 22, 2001, and not February 26, 2001, the date she actually started at the TEDC. On this basis, the Union claimed that Ms. Shipticki should have been placed at the top of the CO2 grid, consistent with the Re-Hire Policy. The Employer argued that she was hired on February 26, 2001, and that her treatment was consistent with the Re-Hire Policy. Vice-Chair Briggs determined that Ms. Shipticki was hired on February 26, 2001, and treated within the terms of the Re-Hire Policy. She therefore dismissed grievance #1.

8As I noted at the outset, grievance #2 is part of a grouping of twelve individual grievances. The COs who filed these grievances are essentially in the same situation in that they were rehired as COs after a period of separation from the Ministry that exceeded 6 months but was less than 24 months. Upon re-hire, the grievors were assigned a rate of pay that was less than the rate of pay they enjoyed just prior to their separation. They were paid the minimum rate of the CO2 classification. They claim that there were other re-hired COs in the same position as them who were paid at a higher level on the grid. The Union argues that this different treatment constitutes a contravention of the Collective Agreement.

9The position taken by the Employer is quite straightforward. It asserts that the facts giving rise to both grievances are the same and that the remedy sought in both grievances are the same. It claims that the issue between the parties regarding Ms. Shipticki’s placement on the grid upon her re-hire was resolved by the Briggs decision. Relying on the aspect of the res judicata doctrine which prevents a party from litigating a matter which should have been raised in an earlier proceeding, the Employer argues that any position the Union wishes to advance with respect to grievance #2 should have been pursued before Vice-Chair Briggs. In support of the position that grievance #2 should be dismissed, counsel for the Employer relied on OPSEU (McNally) and Ministry of Transportation, GSB No. 2009-1749 (Brown) and Danyluk v. Ainsworth Technologies Inc., 2001 SCC 44, [2001] 2 S.C.R. 460. Although not disagreeing with the res judicata principles referenced by Employer counsel, counsel for the Union argued that they were not applicable in these circumstances so as to preclude grievance #2 from being heard. In my view, the position of the Union has considerable merit.

10The doctrine of res judicata is intended to bring finality to litigation by precluding the litigation of an issue that has been decided. It is designed to avoid duplicative procedures, inconsistent results and unnecessary costs. A close examination of the facts and the legal issues in both grievances illustrate that the doctrine does not apply in these circumstances.

11Although not determinative, it is worth noting that grievance #1 and grievance #2 were filed in 2002, well before grievance #1 was brought before Vice-Chair Briggs in 2005. This is not a situation where a decision was made on a grievance and then another grievance was subsequently filed that raised the same or similar issue relying on essentially the same facts. I have no information about whether any consideration was given to the existence of grievance #2 when the narrow issue raised by grievance #1 was place before Vice-Chair Briggs. There may be an argument that the failure of the Employer to raise the issue of other related grievances filed by Ms. Shipticki when grievance #1 was litigated may preclude the Employer from relying on res judicata. It is not necessary for me to deal with this issue.

12As I noted previously, grievance #1 and grievance #2 relate to claims about Ms. Shipticki’s rate of pay upon re-hire and they seek a similar remedy. However, upon careful examination, it is evident that the facts grounding each grievance are different, as are the legal issues. The narrow issues raised by grievance #1 before Vice-Chair Briggs concerned Ms. Shipticki’s date of re-hire and whether the Re-Hire Policy applied so as to entitle her to the top rate of the CO2 classification. The relevant facts included her date of separation from the TEDC, the timing of her application to rejoin the Ministry, her requested date of return and the date she actually started at the TEDC in 2001. The legal issues before Vice-Chair Briggs were Ms. Shipticki’s date of re-hire and whether the Re-Hire Policy applied so as to entitle her to highest rate of her classification. These matters were addressed in by an expedited process designed to deal with transition issues.

13In contrast, the claim advanced by the Union in grievance #2 is unrelated to the Re-Hire Policy. Grievance #2 is worded differently than grievance #1 and refers specifically to a claim about different treatment. In this respect, it is the same claim that is being made in the other grievances that have been grouped together. The relevant facts alleged are that Ms. Shipticki and the other grievors in the group were assigned the lowest rate of the CO2 classification upon their re-hire while other COs were rehired in similar circumstances, but were assigned a higher rate on the CO2 grid. Assuming these facts can be established, the legal issue is whether this different treatment constitutes a contravention of the Collective Agreement. The different facts relied on in each grievance and the distinct legal issues support the conclusion that the conditions for the application of the doctrine of res judicata are not present in this case. This is not a situation where the Union is attempting to litigate an issue before me that had been decided by Vice-Chair Briggs.

14Even if the conditions for the application of the doctrine had been established, this may very well be the type of case where it would be appropriate to exercise a discretion to entertain grievance #2 in any event. The Union clearly brought grievance #1 before Vice-Chair Briggs to resolve the narrow question of whether Ms. Shipticki was rehired within 6 months of separation. It made sense to utilize the expedited process to resolve this type of issue. If the Union had succeeded in this effort, it would have been unnecessary to continue to pursue the different legal issue raised in grievance #2 on behalf of Ms. Shipticki. It would have made little sense to raise the issue presented in grievance #2 before Vice-Chair Briggs. In addition to separating her grievance from the group of related grievances, grievance #2 is not the type of grievance that would be appropriate for the expedited process. In my view, there is a sound labour relations justification for the way the Union has proceeded with these grievances and labour relations justice by itself might have dictated that grievance #2 be heard even if the conditions for res judicata were present.

15For the foregoing reasons, it is my conclusion that the doctrine of res judicata does not apply here so as to preclude grievance #2 from being heard. Grievance #2 will be heard with the group of similar grievances as scheduled.