GSB#2012-1543
UNION#2011-0340-0089
Additional Files listed in Schedule “A”
IN THE MATTER OF AN ARBITRATION
Under
THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT
Before
THE GRIEVANCE SETTLEMENT BOARD
BETWEEN
Ontario Public Service Employees Union
(Bailey et al)
Union
- and -
The Crown in Right of Ontario
(Ministry of Government Services)
Employer
BEFORE
Nimal Dissanayake
Vice-Chair
FOR THE UNION
Richard Blair
Ryder Wright Blair & Holmes LLP
Barristers and Solicitors
FOR THE EMPLOYER
Stewart McMahon
Ministry of Government Services
Labour Practice Group
Counsel
HEARING
April 11, 2013.
Decision
1The Board is seized with a large number of individual grievances filed by the grievors, Ms. Catherine Bailey, Ms. Holly Prophet, Ms. Janet Ricketts and Ms. Shelly Roy, all of which arise out of the surplussing of their positions. The grievances are framed differently alleging violations of various provisions of the collective agreement.
2The Board was advised that the employer was advancing a motion that relates only to the grievances filed by each of the four grievors alleging a breach of article 20.4 on displacement rights. The motion is to the effect that these grievances were referred to arbitration outside the mandatory time limits specified in article 22.4 of the collective agreement, and that the Board lacked jurisdiction over those grievances. The motion was argued on the basis of an agreed statement of facts and documents filed on consent.
3The Agreed Statement of Facts is as follows:
The grievances at issue are numerous grievances which allege violations of Article 20.4 and 2.1 of the Collective Agreement.
Due to the requirements of Article 22.7, which arguably requires that separate grievances be filed regarding each position into which it is alleged that a grievor could displace, numerous grievances were filed on behalf of each individual grievor. Due to a dispute between the parties about the meaning of article 22.7 and more particularly a dispute about whether the Union and the Grievor can assert a claim to more than one displacement opportunity the Union elected to file numerous grievances on behalf of each grievor.
Each of these grievances was filed on November 1, 2011.
At the same time as these grievances were filed, individual grievances for each individual alleging a violation of Article 20.8 (relating to the alleged failure to place the grievors into temporary assignments) were also filed. These were filed on the same date, November 1, 2011, as the grievances alleging violations of Article 20.4.
The grievances were forwarded to the Union’s grievance department on or about December 1, 2011.
Stage 2 meetings with respect to both the article 20.4 and article 20.8 grievances were held on December 1, 2011.
The Employer issued letters denying the article 20.4 grievances on December 13, 2011.
The Employer issued letters denying the article 20.8 grievances on December 13, 2011.
The Article 20.4 grievances were not referred to arbitration within the timeframe contemplated by the Collective Agreement, as noted in the paragraph below. On investigating, Stephen Giles of OPSEU concluded that due to the similarity of the appearance of the grievances, and the similarity of the wording of the grievances, an administrative error was made. Specifically, Mr. Giles, based on his investigation, concluded that it was incorrectly assumed by staff processing the referrals that the numerous grievances were duplicates of the 20.8 grievances. As a result, only the Article 20.8 grievances were referred to the Ministry File Review Committee and ultimately referred to arbitration. This was a purely administrative error on the part of the Union.
The error was not identified until mid-August, 2012, when Mr. Stephen Giles, while preparing for a September 4, 2012 hearing date, was speaking to Mr. McMahon, the Employer’s counsel. During that conversation it first became evident to Mr. Giles that the identified that the Article 20.4 grievances had not been referred to arbitration. Mr. Giles informed employer counsel of the error without delay, and referred the grievances to arbitration on August 17, 2012.To that point in time the Employer was preparing for the arbitration on the basis that the only grievances which had been referred to the Board were the 20.8 grievances.
The parties agreed that they would discuss settlement of both the article 20.8 and 20.4 grievances while at the GSB on September 7th without prejudice to the ability of the Employer to raise a timeliness objection and that the GSB had no jurisdiction over the article 20.4 grievances.
In the meantime, the grievors also filed grievances on April 26, 2012, alleging that they had been improperly surplussed and their positions improperly reposted in the AMAPCEO bargaining unit. Those grievances were referred to arbitration August 15, 2012. A stage 2 meeting with respect to these grievances was conducted on June 15, 2012 and the Employer issued a denial letter on June 23, 2012. Those grievances were referred to arbitration August 15, 2012.
On or about December 5, 2011 the Grievor Janet Ricketts was offered and accepted a direct assignment pursuant to article 20.3.
On or about December 7, 2011, the Grievor Catherine Bailey was offered and accepted a displacement opportunity pursuant to article 20.4.
The Grievor Shelly Roy/Millburn obtained a series of temporary assignments and on October 23, 2012 was offered and accepted a direct assignment pursuant to article 20.3.
The Grievor Holly Prophet obtained a series of temporary assignments and on March 15, 2013 was offered and accepted a direct assignment pursuant to article 20.3.
4The jurisprudence of this Board is clear that in the collective agreement that governs these grievances, the arbitration process is distinct from the grievance procedure, and that consequently the Board has no power pursuant to s. 48(16) of the Labour Relations Act to extend the time limits for referral of grievances to arbitration. See, The Crown in Right of Ontario (Ministry of Attorney General) and OPSEU (Johnston), January 8, 2010, GSB # 2009-1147 (Dissanayake).
5Union counsel conceded that based on the facts and an application of the Board jurisprudence, the Board would lack jurisdiction to hear these grievances. His submissions were focussed on the inequity that state of the law creates. He submitted that this is a clear case of such inequity. Due to an unfortunate administrative oversight by a member of the union’s staff, and in the absence of any fault on the part of the grievors, they are denied access to arbitration, although they had asserted all along that their collective agreement rights had been denied by the employer.
6The Board appreciates the union’s “unfairness of the law” argument. From a grievor’s perspective the result of applying the law in these circumstances could justifiably be viewed as very unfair, particularly where the grievance at issue is of a serious nature where the right to a job itself may be at stake. However, union counsel did not argue that the Board had the power to extend the time limit for referral to arbitration under this collective agreement in order to alleviate that unfairness. The fact is that there is no legal basis for the Board assuming such equitable authority, despite the temptation to do so on sympathetic grounds.
7In the circumstances, the inevitable conclusion is that the grievances were referred to arbitration outside the mandatory time limits, the Board has no authority to extend those time limits, and consequently has no jurisdiction to hear and determine the grievances.
8Accordingly, the grievances subject to this motion are hereby dismissed.
Dated at Toronto this 18th day of April 2013.
SCHEDULE “A”
GSB Number
Grievor Name
OPSEU #
2012-1544
Bailey, Catherine
2011-0340-0090
2012-1545
Bailey, Catherine
2011-0340-0091
2012-1546
Bailey, Catherine
2011-0340-0092
2012-1547
Bailey, Catherine
2011-0340-0093
2012-1548
Bailey, Catherine
2011-0340-0094
2012-1549
Bailey, Catherine
2011-0340-0095
2012-1550
Bailey, Catherine
2011-0340-0096
2012-1551
Bailey, Catherine
2011-0340-0097
2012-1552
Bailey, Catherine
2011-0340-0098
2012-1553
Bailey, Catherine
2011-0340-0099
2012-1554
Bailey, Catherine
2011-0340-0100
2012-1555
Bailey, Catherine
2011-0340-0101
2012-1556
Bailey, Catherine
2011-0340-0102
2012-1557
Bailey, Catherine
2011-0340-0103
2012-1558
Bailey, Catherine
2011-0340-0104
2012-1559
Bailey, Catherine
2011-0340-0105
2012-1560
Bailey, Catherine
2011-0340-0106
2012-1561
Bailey, Catherine
2011-0340-0107
2012-1562
Bailey, Catherine
2011-0340-0108
2012-1563
Bailey, Catherine
2011-0340-0109
2012-1564
Bailey, Catherine
2011-0340-0110
2012-1565
Bailey, Catherine
2011-0340-0111
2012-1566
Bailey, Catherine
2011-0340-0112
2012-1567
Bailey, Catherine
2011-0340-0113
2012-1568
Bailey, Catherine
2011-0340-0114
2012-1569
Bailey, Catherine
2011-0340-0115
2012-1570
Bailey, Catherine
2011-0340-0116
2012-1571
Bailey, Catherine
2011-0340-0117
2012-1572
Bailey, Catherine
2011-0340-0118
2012-1573
Bailey, Catherine
2011-0340-0119
2012-1574
Prophet, Holly
2011-0340-0120
2012-1575
Prophet, Holly
2011-0340-0121
2012-1576
Prophet, Holly
2011-0340-0122
2012-1577
Prophet, Holly
2011-0340-0123
2012-1578
Prophet, Holly
2011-0340-0124
2012-1579
Prophet, Holly
2011-0340-0125
2012-1580
Prophet, Holly
2011-0340-0126
2012-1581
Prophet, Holly
2011-0340-0127
2012-1582
Prophet, Holly
2011-0340-0128
2012-1583
Prophet, Holly
2011-0340-0129
2012-1584
Prophet, Holly
2011-0340-0130
2012-1585
Prophet, Holly
2011-0340-0131
2012-1586
Prophet, Holly
2011-0340-0132
2012-1587
Prophet, Holly
2011-0340-0133
2012-1588
Prophet, Holly
2011-0340-0134
2012-1589
Prophet, Holly
2011-0340-0135
2012-1590
Prophet, Holly
2011-0340-0136
2012-1591
Prophet, Holly
2011-0340-0137
2012-1592
Prophet, Holly
2011-0340-0138
2012-1593
Prophet, Holly
2011-0340-0139
2012-1594
Prophet, Holly
2011-0340-0140
2012-1603
Ricketts, Janet
2011-0340-0152
2012-1604
Roy, Shelly Ann
2011-0340-0141
2012-1605
Roy, Shelly Ann
2011-0340-0142
2012-1606
Roy, Shelly Ann
2011-0340-0143
2012-1607
Roy, Shelly Ann
2011-0340-0144
2012-1608
Roy, Shelly Ann
2011-0340-0145
2012-1609
Roy, Shelly Ann
2011-0340-0146
2012-1610
Roy, Shelly Ann
2011-0340-0147
2012-1611
Roy, Shelly Ann
2011-0340-0148
2012-1612
Roy, Shelly Ann
2011-0340-0149
2012-1613
Roy, Shelly Ann
2011-0340-0150
2012-1614
Roy, Shelly Ann
2011-0340-0151
2012-1663
Ricketts, Janet
2011-0340-0153
2012-1664
Ricketts, Janet
2011-0340-0154
2012-1665
Ricketts, Janet
2011-0340-0155
2012-1666
Ricketts, Janet
2011-0340-0156
2012-1667
Ricketts, Janet
2011-0340-0157
2012-1668
Ricketts, Janet
2011-0340-0158
2012-1669
Ricketts, Janet
2011-0340-0159
2012-1670
Ricketts, Janet
2011-0340-0160
2012-1671
Ricketts, Janet
2011-0340-0161
2012-1672
Ricketts, Janet
2011-0340-0162
2012-1673
Ricketts, Janet
2011-0340-0163
2012-1674
Ricketts, Janet
2011-0340-0164
2012-1675
Ricketts, Janet
2011-0340-0165
2012-1676
Ricketts, Janet
2011-0340-0166
2012-1677
Ricketts, Janet
2011-0340-0167
2012-1678
Ricketts, Janet
2011-0340-0168
2012-1679
Ricketts, Janet
2011-0340-0169
2012-1680
Ricketts, Janet
2011-0340-0170
2012-1681
Ricketts, Janet
2011-0340-0171
2012-1682
Ricketts, Janet
2011-0340-0172
2012-1683
Ricketts, Janet
2011-0340-0173
2012-1684
Ricketts, Janet
2011-0340-0174
2012-1685
Ricketts, Janet
2011-0340-0175
2012-1686
Ricketts, Janet
2011-0340-0176
2012-1687
Ricketts, Janet
2011-0340-0177
2012-1688
Ricketts, Janet
2011-0340-0178
2012-1689
Ricketts, Janet
2011-0340-0179
2012-1690
Ricketts, Janet
2011-0340-0180
2012-1691
Ricketts, Janet
2011-0340-0181
2012-1692
Ricketts, Janet
2011-0340-0182