GSB#2011-0378

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 (Chapman)

Association

• and -

The Crown in Right of Ontario (Treasury Board Secretariat)

Employer

BEFORE

Christopher Albertyn

Vice-Chair

FOR THE ASSOCIATION

Marisa Pollock Goldblatt Partners LLP Counsel

Nadine Blum Goldblatt Partners LLP Counsel

FOR THE EMPLOYER

Susan Munn Treasury Board Secretariat Legal Services Branch Counsel

HEARING

June 16, 2016

Decision

1This is a complaint regarding the implementation of a Memorandum of Settlement concluded on March 1, 2013.

2The Complainant contends that a permanent vacancy arose, pursuant to Paragraph 2.1 of the Memorandum of Settlement, to which she ought to have been assigned. The Employer denies there was any permanent vacancy, or, if there was a vacancy, that the Complainant had the required qualifications.

3A number of procedural arrangements have been made to expedite the hearing of this matter, although no evidence has yet been presented. The last day of hearing was on May 7, 2015.

4An intervening event has occurred. The Complainant’s employment was terminated on February 9, 2016. The Union has grieved the termination. It has also grieved an earlier disciplinary suspension issued to the Complainant. Likely the termination and suspension grievances will be heard together. The Employer has denied both grievances. The grievances have yet to be referred to arbitration, although that is likely to occur soon.

5The Employer asks that the current grievance (“the Settlement grievance”) – concerning the implementation of the Memorandum of Settlement – be deferred until the termination grievance is determined. The reason for the request is that the Settlement grievance will become moot if the Complainant’s termination grievance is denied.

6The Union opposes the Employer’s motion. It submits that there is a possibility, but no certainty, of the Settlement grievance becoming moot. Given the uncertainty, the Settlement grievance should be allowed to continue in the ordinary course, to its resolution. The Union argues that much time has already elapsed since the filing of the Settlement Grievance and the Complainant should not have to wait a further period to have it resolved. Labour relations disputes should be determined expeditiously, and any deferral of the Settlement grievance would be counter to that objective.

7I recognize, as the Union submits, that there is no certainty that the Settlement grievance will become moot. However, if the termination grievance is dismissed, it will be moot. Continuing with the hearing of the Settlement grievance if this possibility is realized will mean that time, effort and expense will have been used unnecessarily. Further, as the Employer argues, if the Complainant were to be successful in the Settlement grievance, the result could not be implemented until after the resolution of the termination grievance, assuming the Complainant to be reinstated in employment as a consequence of the arbitration of that grievance. Accordingly, nothing would be gained by completing the Settlement grievance before the termination grievance is determined.

8The Board has the power under s. 48(12)(i) of the Labour Relations Act, 1995 SO 1995, c 1, Sch A “to make interim orders concerning procedural matters”. The Employer’s request is such a matter. The Board should avoid inefficiencies in the conduct of its hearings. As the Employer submits, where a proceeding can become moot as a result of another proceeding, it makes sense to adjourn the proceeding. That is the case for the Settlement grievance. It should await the outcome of the arbitration of the termination grievance. That outcome will determine whether the Complainant continues to be an employee in the Ontario public service and, therefore, whether the Settlement grievance needs to be heard.

9Accordingly, I find that the arbitration of the Settlement grievance should be held in abeyance. I therefore direct that:

a) the hearing scheduled for July 7, 2016 is cancelled;

b) this matter is adjourned sine die, pending the determination of the arbitration of the Complainant’s termination grievance;

c) after that determination, the Union should advise the Registrar whether it wishes to have this matter re-scheduled for hearing.