GSB# 2016-2590

UNION# 2017-0553-0001

IN THE MATTER OF AN ARBITRATION

Under

THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT

Before

THE GRIEVANCE SETTLEMENT BOARD

BETWEEN

Ontario Public Service Employees Union (Thach)

Union

• and -

The Crown in Right of Ontario (Ministry of the Environment and Climate Change)

Employer

BEFORE

Diane Gee

Arbitrator

FOR THE UNION

Jennifer Micallef Ryder Wright Blair & Holmes LLP Counsel

FOR THE EMPLOYER

Stewart McMahon Treasury Board Secretariat Legal Services Branch Senior Counsel

TELECONFERENCE

May 3, 2018

DECISION

1This matter is a grievance, filed on January 17, 2017, in which the grievor asserts he is entitled to be paid a higher salary for the period of time he was assigned the duties of a position in a classification with a higher salary (for ease of reference I will refer to this grievance as the “Pay Grievance”). The matter was scheduled by way of Notice of Hearing dated January 31, 2018 for hearing on July 18, 2018. On February 6, 2018, the Employer discovered that counsel assigned to the matter had been double booked and asked that the matter be rescheduled to a different date. The Union opposed the Employer’s request and, as a result, a conference call was held on May 3, 2018.

2By way of background, an associated grievance, referred to herein as the “Competition Grievance,” was scheduled to be heard on a date in June 2017. In advance of the set hearing date, noting that the two matters were connected, the parties engaged in discussions aimed at resolving both the Pay Grievance and the Competition Grievance. On the Friday before the hearing (scheduled for the following Monday), the Union advised the Employer it was withdrawing the Competition Grievance and wished to adjourn the hearing set for the following Monday. In addition, the Union asked that a second hearing date, in September 2017, be rescheduled due to a conflict. The Employer agreed to the adjournment requests in respect of both dates. Two further dates in January and February 2018 were then scheduled. In response to the Employer’s request, made for unquestionably compelling reasons, the Union agreed to cancel the January and February 2018 dates on the condition that a replacement date was scheduled. The parties agreed to set July 18, 2018 as the hearing date. As indicated above, a Notice of Hearing was issued on January 31, 2018 and, on February 6, 2018, the Employer discovered that counsel had inadvertently been double booked and asked that the matter be rescheduled to a different date.

3The Employer asserts that the Union’s position is inexplicable and contrary to good labour relations. The Employer notes that the Union itself adjourned a date in June 2017 for no stated reason and adjourned a second date in September 2017 due to a conflict; the exact reason the Employer relies on presently. While the Employer inadvertently agreed to the July 2018 date, the Union was advised of the mistake within one week such that, had the Union agreed, a closely proximate replacement date could have been quickly set. The Union’s refusal to consent to the adjournment request has resulted in this matter stalling from February 6 to the present time. The Employer states that the Union’s refusal to consent is for no reason other than the implementation of a blanket policy that all requests made by the Employer for an adjournment are to be opposed. The Employer argues that the Union’s position has resulted in no regard being given to the circumstances of this case, including the fact that the Employer accommodated two Union requests for adjournments in this very matter in the past; cost the parties time and expense in connection with the need to argue this motion; frustrated the timely resolution of this matter; and is contrary to good labour relations.

4The Union notes the length of time this matter has been outstanding. Numerous adjournments have already taken place resulting in delay. No hearing has yet taken place and thus the Union argues that the matter can be assigned to another lawyer who is available on the date set. Rather than cancelling the date, the Employer can reassign the file. The Union does not consent to rescheduling the matter in these circumstances.

5In advance of the conference call, at my request, it had been determined that both counsel presently assigned to this matter, as well as the Employer itself, are available on July 24, 2018. It is not known if the grievor is available for this date.

6The timely resolution of grievances is essential to the credibility of the grievance and arbitration process as well as to employee satisfaction and workplace morale. While the grievance in question was filed 10 months ago, and has not yet had a day of mediation or arbitration, it must be born in mind that the issue in dispute is whether the grievor was entitled to be paid at a higher wage rate for a temporary period of time when he performed the duties of a higher rated position. The issue underlying the grievance is not time sensitive nor is it ongoing. Having regard to the character of the grievance, delay, while regrettable, is not likely to create additional problems for the grievor or in the workplace.

7The reason given by the Employer is that counsel was inadvertently double booked. The Employer simply made a scheduling error. Given the number of matters scheduled each year between the parties mistakes are bound to happen; the Union itself was granted an adjournment due to a scheduling conflict earlier in the process. Barring an unreasonable volume of such errors, managing them quickly and cooperatively will best serve to advance the expedition with which grievances are resolved.

8As argued by the Union, Employer counsel has not yet formally appeared at mediation or arbitration on this file. In such cases, another lawyer could be substituted for the lawyer who has the scheduling conflict and it would be reasonable to ask that such be done instead of the date being rescheduled. In the present case, the counsel in question has invested time in the file, is knowledgeable about the issues in dispute and has been party to discussions with Union counsel as to how the matter might be settled. A new lawyer would have to replicate all of the work done by existing counsel. If this matter were of a more urgent nature, reassigning counsel may have been the appropriate result. However, as indicated above, this matter is not urgent and hence the investment of time that counsel has already made in the file is a more weighty consideration.

9Finally, as indicated above, subject to confirming the grievor’s availability, this matter can be rescheduled from July 18, 2018 to July 24, 2018, a delay of six days.

10Thus, I hereby confirm the ruling I made orally during the May 3, 2018 conference call:

(i) The July 18, 2018 date is hereby cancelled.

(ii) I hereby direct the Union to forthwith ascertain the grievor’s availability for a hearing to be held on July 24, 2018 and advise Employer counsel and myself accordingly.

(iii) If the grievor is available on July 24, 2018, I will recuse myself and the GSB will secure another Arbitrator to hear this matter on July 24, 2018.

(iv) If the grievor is not available on July 24, 2018, the parties are to so advise me and a procedure will be put in place for this matter to be scheduled as expeditiously as possible.