GSB#2011-2566

IN THE MATTER OF AN ARBITRATION

Under

THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT

Before

THE GRIEVANCE SETTLEMENT BOARD

BETWEEN

Association of Management, Administrative and Professional Crown Employees of Ontario (Thuraisingham)

Association

• and -

The Crown in Right of Ontario (Ministry of Environment)

Employer

BEFORE

Bram Herlich

Vice-Chair

FOR THE UNION

Marisa Pollock Sack Goldblatt Mitchell LLP Counsel

FOR THE EMPLOYER

Lisa Compagnone Ministry of Government Services Legal Services Branch Counsel

HEARING

June 6, 2013

Decision

1In a document dated October 19, 2012, the parties executed a Memorandum of Settlement (“MOS”) resolving a dispute which had been filed on behalf of the Complainant.

2The Association is now asserting that the employer has failed to comply with the terms of the MOS. For its part, the employer argues that, given what is (and, perhaps more importantly in its view, what is not) included in the MOS, I am without jurisdiction to entertain the Association’s claim.

3The parties argued the employer’s preliminary motion seeking a dismissal on the basis of certain basic facts, which were not in dispute (at least not in any fashion which bears upon the instant determination).

4The complainant commenced his employment in the bargaining unit in December 2008 as a fixed term contract employee. He continued in that capacity for some time. However, in June 2011 he was advised that his then current contract, which was set to expire on September 30, 2011, would not be renewed. A dispute was filed in which a claim was advanced that the complainant ought to have been converted to a regular full-time employee.

5That dispute was resolved, over a year later, when the parties entered into the MOS referred to earlier. Before I set out that document in its entirety, it may be useful to provide a summary of what appears to be the essence of the agreement. The parties agreed to put the complainant in a position which, at least in some, but by no means all respects, resembles that of a full-time employee who has been declared surplus. It is perhaps the precise nature of that resemblance which is at the heart of the current dispute between the parties. The agreement provides as follows:

6Paragraph seven of the MOS is a useful starting point at which to begin any appreciation of the parties’ positions. This paragraph makes clear that the complainant’s redeployment rights include (at least something similar to) those found in Article 27.8 (Direct Assignment to Permanent Vacancies) and Article 27.11 (which enumerates the rights of laid off bargaining unit employees). And this same paragraph of the MOS makes equally clear that the rights set out in Articles 27.10 (Direct Assignments into Temporary Vacancies) and 27.18 (Redeployment Outside the Bargaining Unit) are not available to the complainant. The very inclusion of this paragraph, from the perspective of parties, at least one of whom is arguing that the result in this case turns on what portions of Article 27 were and were not explicitly included in the MOS, is somewhat puzzling.

7Article 27 comprises some 30 pages of collective agreement provisions relating to job security. If the parties chose to specifically include the application of certain portions of Article 27, what, if anything, does that tell us about the application of the balance of the Article? And if the parties choose to specifically exclude the application of certain portions, what, if anything, does that tell us about the application of the balance of the Article? And, if they do both, i.e. include and exclude the application of certain portions of the Article?

8Ultimately, however, any interpretive puzzlement is illusory, certainly in the context of the instant case.

9The Association asserts that the employer has failed to properly (to borrow the words of the MOS) “search for a direct assignment pursuant to Article 27.8 and in accordance with Article 27.8.3”, which provides:

27.8.3 Employees shall be directly assigned to a permanent AMAPCEO unit position that is vacant in the relevant time period, provided that:

(a) the vacant position is in a classification for which the maximum salary is no more than 5% above or 15% below the maximum salary of the classification of the position, as determined i accordance with Article 27.13, from which the employee is declared surplus (or, where the employee who is declared surplus is in the SMG classification, the maximum salary for the vacant position is no more than 30% below the job rate of the SMG employee's classification); and

(b) the vacant position is within a forty (40) kilometres radius from the surplus employee's existing permanent work location or the last permanent work location of an employee on recall; and

(c) the employee meets the entry level qualifications for the position; and

(c) there is no other AMAPCEO unit employee who has a greater length of continuous service and who is eligible for assignment to the vacancy pursuant to this Article.

10The employer, however, relies most heavily on Article 27.16; more specifically on its absence from the MOS. There is no question that this portion of Article 27 was not explicitly included in the MOS. Indeed, it was not even referred to in the MOS and neither did the Association make any argument before me that its terms were (implicitly or explicitly) incorporated into the MOS. Article 27.16 provides as follows:

27.16 Dispute Resolution

27.16.1 Disputes arising out of the application, interpretation and administration of Article 27 will be resolved pursuant to the procedure set out below.

27.16.2 Any complaint concerning Article 27 may be referred by either party to the Article 27 Committee composed of a minimum of three (3) representatives of each party, and a maximum of five (5). The complaint shall be referred within sixty (60) days after the circumstances giving rise to the complaint have occurred, or have come or ought reasonably to have come to the attention of the employee(s), in the case of individual or group disputes, or the Association, in the case of an Association dispute, or the Employer in the case of an Employer dispute. The Committee shall have Employer and Association co-chairs. Each party shall have one (1) vote on the Committee. Any complaint shall be in writing and shall be delivered to the Employer Co-Chair in the case of an AMAPCEO complaint, and the AMAPCEO Co-chair in the case of an Employer complaint. The committee shall meet as often as necessary to attempt to resolve complaints equitably and expeditiously. The Article 27 Committee will be a subcommittee of ACERC.

27.16.3 The bargaining unit members of the Committee shall be entitled to time off with pay and no loss of credits for meeting time and reasonable preparation and travel time for the work of the Committee and mediation/arbitration. Such time off will not be unreasonably denied as long as proper notice is given.

27.16.4 If the Committee is unable to resolve any matter within five (5) working days of the delivery to the Co-chair, or earlier by mutual agreement, either party may refer the matter to arbitration in accordance with Article 15.3.3 and Article 15.10. More than one (1) matter at a time may be referred to arbitration.

11The employer asserts that Article 27.16 is the dispute resolution procedure that applies to any dispute arising out of the application of Article 27, including any allegations (as in the instant case) that the employer has failed to properly conduct a search for a direct assignment to a permanent vacancy. Thus, to put it most starkly, while the Association may have negotiated certain selected and specified Article 27 rights into the MOS, the parties’ clear failure to incorporate or even refer to Article 27.16 means that they have deliberately agreed that there is no dispute resolution mechanism available with respect to a breach of the MOS such as the one here alleged.

12In fairness to the employer, it distinguished between a claim that a search had not been conducted and one alleging that specific positions had been wrongfully excluded or eliminated from the search. The former is not relevant because, it asserts, a search was conducted. But the MOS provides the Association with no opportunity to raise the latter type of challenge.

13While the employer concedes that this may be viewed as a harsh result, it cautions that the role of the Board is to give effect to, not to author, the terms of the parties’ agreement. In a further submission (which the Association, with some justification, identified as inconsistent with the spirit of the first), the employer argues that to permit the Association to litigate the merits of its claim would undermine the bargain of the parties. And, in an extension of that point, the employer asserts that to permit the full-fledged litigation that may ensue if its motion is denied, would undermine the finality the employer thought it was purchasing through the settlement and, by extension, would cast a chill on future settlement endeavours.

14The Association’s submissions are perhaps more direct and unsurprising. Chief among the policy considerations underlying its position is the familiar refrain that a right that cannot be enforced is a hollow one indeed. And whatever else may be said about the overlap, identity, incorporation or exclusion as between Article 27 and the MOS, the parties, in the latter document, clearly agreed that I was to remain seized with respect to the implementation, interpretation and remedial aspects of the MOS.

In my view, this latter point is a full and complete answer to the employer’s motion.

There are several reasons to reject the employer’s analysis.

15First, I am not persuaded that the distinction between whether or not a search was conducted and the manner in which it was conducted, is a meaningful one in the instant case. The Association is challenging the employer’s compliance with the terms of the MOS. Whether or not it will ultimately succeed in that claim, the Association is, presumptively, entitled to raise it.

16It may be that the employer considers that it paid dearly for a bargain that may not provide the finality it prizes. But whatever might have been in the employer’s mind when entering the settlement is of no moment – it is the terms of the MOS which must speak. On the one hand, it may be possible to say that the grievor’s treatment was generous – he appears, for example, to have received both (something that resembles) pay-in-lieu of notice and certain (though by no means all Article 27) assignment entitlements. Under the collective agreement (as distinguished from the settlement perhaps, such entitlements might well be mutually exclusive). That may explain the employer’s sentiment of having paid dearly (to be clear there was no evidence on this point). On the other hand, the complainant was out of work for more than a year before the settlement of a case claiming he ought to have been converted to a regular full-time employee. It would not be surprising if his view of the “generosity” of the settlement was not as fulsome as that of the employer. All of this is really by way of saying that what either or both parties’ might have thought about the benefits or shortcomings of the settlement is, unless such a view is clear and explicit in the document itself, of little assistance in any effort to interpret its terms. The deal is what it is. I agree with the employer that it is not for this Board to determine what it ought to have been.

17By the same token, however and perhaps stripped of any other considerations, the Association’s submissions regarding rights and remedies has greater resonance than the employer’s appeals to finality. There are potentially conflicting considerations. If settlements cannot be final, there will be little incentive to embrace them; but if they cannot be enforced there may be even less.

18The parties in the instant case did enter into a full and final settlement. The issues raised in the initial dispute are resolved. No one seeks to reopen them. But the parties entered into a bargain in order to achieve that result. The rights and obligations contemplated in that bargain are enforceable. The parties, in their settlement, conferred that jurisdiction on me. Any lack of finality is not a result of a frailty or shortcoming in the settlement document. Finality can only be achieved if the parties abide by the terms of their agreement. The Association alleges that the employer has failed to properly implement a term of the settlement. I have not (yet) been asked to determine the precise nature of the rights and obligations that flow from the MOS. The Association, however, by virtue of the terms of the MOS, has the right to bring an allegation of non-compliance before me.

19The employer’s motion is dismissed. The parties are direct to confer with the Registrar to schedule further hearing date(s).