GSB#2010-1510

UNION#2009-0520-0038

IN THE MATTER OF AN ARBITRATION

Under

THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT

Before

THE GRIEVANCE SETTLEMENT BOARD

BETWEEN

Ontario Public Service Employees Union (Cooray)

Union

• and -

The Crown in Right of Ontario (Ministry of Attorney General)

Employer

BEFORE

Bram Herlich

Vice-Chair

FOR THE UNION

Seung Chi Ontario Public Service Employees Union Grievance Officer

FOR THE EMPLOYER

Susan Munn Ministry of Government Services Labour Practice Group Counsel

HEARING

April 3, 2012.

Decision

1The grievor in this case alleges that he has been subject to improper discrimination on the basis of age and/or sex. He complains that he has been scheduled to work fewer hours, particularly overtime hours, over certain periods of time than have some of his co-workers, in particular younger females.

2The grievor has, since at least September 2007, been employed in a 1500 hour Flexible Part-Time (“FPT”) position as a Court Registrar. The grievance was filed on October 2, 2009.

3A prior mediation-arbitration session was held in this matter. That resulted in an order of this Board directing the union to file particulars of its case. The union has filed particulars, a copy of which is attached to this decision. In the interests of privacy the names of the employees listed in Appendix A to the union’s particulars have been omitted and replaced with initials.

4The employer asserts that the union has failed to comply with the Board order directing particulars in that, quite apart from their apparently late submission, the particulars are, in any event, insufficient (the union did not seek to file any further particulars) and the case ought to be dismissed on that basis alone.

5Further, in what might be considered a reformulation of its first position, the employer asserts that, even if all of the facts alleged in the particulars are true and provable, the union has failed to make out a prima facie case of any violation of the collective agreement.

6The instant proceedings were (on consent of the parties) conducted by way of the mediation-arbitration process contemplated under the collective agreement. This is a process with which the parties are familiar – in general terms it sacrifices some of the formalities of a more conventional arbitration proceeding in favour of an expedited resolution of grievances. In that context, this decision, apart from resolving the instant matter, is without any legal precedent for future cases. Further, the parties agreed that I should issue this decision without the need to provide full or elaborate reasons in my award.

7I have considered the parties materials and submissions and have concluded that the grievance must be dismissed – even accepting all the particulars filed by the union to be true and provable, I am persuaded that there simply is no case for the employer to meet.

8The union's case rests on its particulars and, more specifically on the “data" it has provided in Appendix A to those particulars.

9There are, as may often be the case with such “data", a multitude of ways to parse the information contained therein.

10First and perhaps most significant of all, is the fact that the grievor himself was “out of the mix" of FPT Registrars for large portions of the period of time for which the data is provided: in 2008 he spent some 4 months; in 2009 some 3 months; and in 2010 virtually the entire relevant period (i.e. up to June 2010) in assignments other than his usual Registrar position. It is thus difficult to compare his apples with everyone else's oranges. Certainly, there is simply nothing to assess for 2010. But even if I were to accept his 2008 and 2009 hours on some kind of pro-rated basis, no clear picture emerges to support his allegation of discriminatory treatment on the basis of sex and age.

11There are also clearly other distinctions at play apart from sex and age. For example, it is true that three identified employees who are each female and at the younger end of the age spectrum of employees, may be seen to have generally been assigned larger absolute numbers of overtime hours. But these three are in 1000 hour FPT positions, unlike all of the others, including the grievor, who are in 1500 hour FPT positions. There is nothing in the materials that would lead me to conclude, or even suspect, that factors of age or sex figured in the impugned assignments. Indeed, it seems far more likely that the simple fact of the differential status of these employees, contributing to their availability, was of far greater significance.

12But there is a more telling fact, pleaded by the union, which seriously undermines any claim of discriminatory treatment on the basis of sex and age. The data discloses an individual (Mr. BN) of similar age and identical sex to the grievor – the former consistently registers at or very near the top in respect of the number of overtime hours assigned to a 1500 hour FPT employee. That fact alone is difficult to square with any claim that the employer discriminates on the basis of sex and age in its assignments.

13There are undoubtedly many other ways to analyse the data provided. I need not canvass them any further.

14It is sufficient for my purpose to conclude that the data simply does not lead inexorably to, indeed does not even clearly militate in favour of, any conclusion that the factors of age and sex have been considered to the detriment of males and older employees generally, or the grievor in particular, in the assignment of work. Indeed, it is not even clear to me that such conclusion can be suggested by the data.

15The grievance is dismissed.