GSB#2018-1924

UNION#G-073-18-FIN

IN THE MATTER OF AN ARBITRATION

Under

THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT

Before

THE GRIEVANCE SETTLEMENT BOARD

BETWEEN

Amalgamated Transit Union – Local 1587 (Sumesh)

Union

• and -

The Crown in Right of Ontario (Metrolinx – GO Transit)

Employer

BEFORE

Tatiana Wacyk

Arbitrator

FOR THE UNION

Kassia Bonisteel Ursel Phillips Fellows Hopkinson LLP Counsel

FOR THE EMPLOYER

Daniel Fogel Hicks Morley Hamilton Stewart Storie LLP Counsel

HEARING

March 28, 2019

Decision

ISSUE:

1The employer challenges specific allegations brought forward by the union, on the basis they constitute an expansion of the grievance, and are outside my jurisdiction in this matter.

2This decision deals with those challenges.

Factual Background

3No viva voce evidence was adduced for the purpose of this motion. Rather, the facts stipulated by the parties, as well as their submissions, provide the following factual background.

4The grievor commenced his employment as a “Procurement Specialist – Information Technology” on Feb. 12, 2018. His employment was terminated on August 9, 2018. However, as a result of medical issues that arose in the course of his termination meeting, he was granted two days of sick benefits, to be taken August 10, and 11, 2018.

5The employer maintains the grievor was a probationary employee at the time of his dismissal, as he had not completed the 6 month probationary period mandated in Article 7.2(1) (a) of the Collective Agreement.

6The employer asserts the grievor’s employment was terminated due to issues with his performance, and inability to respond satisfactorily to the feedback and support provided.

7The union grieved the employer’s decision to terminate the grievor’s employment.

8The Grievance, submitted on August 20, 2018, states:

I hereby grieve the Employer’s decision to issue me a letter of termination dated August 9, 2018 as being untimely, unjust, without cause, and/or too severe.

9The Grievance identifies Article 6, the Management Rights Clause, as the article in dispute, as well as “any other articles, acts or codes that may apply.”

10The Remedy sought is:

The Union seeks the following relief:

1. A Declaration of the contravention of the Collective Agreement;

2. An Order that the Grievor be reinstated effective immediately;

3. An Order that the Grievor be made whole, including compensation for any and all losses suffered, including non-economic losses;

4. An Order that the instant discipline be nullified;

5. Any other remedy which the Union may advise and the arbitrator allow.

11In response to the Grievance, and without prejudice to the employer’s position that the grievor was a probationary employee with no access to the grievance process, a Step 2 meeting occurred on August 28, 2018.

12The only allegation raised by the union at the August 28, 2018 meeting, was that the grievor had completed his probationary period, as a result of the two gratuitous sick days, i.e. August 10 and 11, 2018, which followed the date of his termination. The union has since abandoned that argument.

13In the course of discussions and correspondence between counsel in preparation for the March 28, 2019 hearing, union counsel, by correspondence dated February 20, 2019, maintained the termination of the grievor was “unlawful”, and communicated the following allegations to counsel for the employer:

• The grievor’s employment was terminated, at least in part, due to his discovery of irregularities in a particular tendering process; [“whistleblowing”]

• The grievor’s termination was tainted by discrimination;

o The grievor’s manager made discriminatory comments respecting India and the Indian rail network prior to his termination; and

• The grievor was no longer a probationary employee at the time of his dismissal, as he was advised by his manager, in late July 2018 – early August, that he had successfully completed his probationary period.

14On March 27, 2019, at opposing counsel’s request, counsel for the union identified the basis for its position that the grievor’s termination, as related to the procurement issue, was “unlawful”. Specifically, counsel for the union indicated it relies on the Public Service of Ontario Act (“PSOA”), and the Criminal Code.

15It is the above three allegations, regarding whistleblowing, discrimination, and a completed probationary period, that are challenged by the employer as an expansion of the grievance.

16There is no dispute these three allegations were not raised or asserted by the union until union counsel’s correspondence of February 20, 2019, referenced above.

17However, on August 16, 2018, the grievor sent an e-mail to the employer’s CEO. In that e-mail, he states the “confidential root cause” for his termination was that in his third month of employment, he discovered “critical fraudulent activity in Procurement”, involving an “organized gang”. While not entirely clear, the grievor maintains his subsequent involvement caused this “organized gang” to start discriminating against and harassing him. He indicated the attempt to have him terminated was the latest in this series of such actions.

18The August 16, 2018 e-mail also indicates that two weeks prior to “the incident”, which I understand to refer to his termination, the grievor was advised he had successfully completed his probation.

19Finally, the grievor also indicates that he is a full-time employee “as on August 11, 2018” – the last day of his benefit.

20The August 16, 2018 e-mail did not provide any further details regarding any of the above assertions.

Parties’ Positions

Employer

21The employer maintains the grievor was a probationary employee at the time of his termination. If correct, this significantly limits the grievor’s right to grieve his termination, as determined by the Grievance Settlement Board (the “Board”) in its decision in Amalgamated Transit Union - Local 1587 (McCurdy) v. Ontario (Metrolinx - GO Transit), 2017 CanLII 85294 (ON GSB).

22In that decision, based on the terms of the Collective Agreement between these parties, Vice-Chair Abramsky held that with one exception, the employer’s decision to dismiss a probationary employee is “absolute”, and may not be challenged on any basis:

26In this case, the parties have agreed that the Employer has the “absolute and sole discretion” to release or dismiss a probationary employee. The word “absolute” was added by the parties in 1986. It therefore must be given meaning. I agree with counsel for the Employer that “absolute” modifies “sole discretion” and means complete, unlimited, unrestricted, or total, and that the Employer’s decision may not be challenged on any basis. The Law Dictionary, based on Black’s Law Dictionary, Online Legal Dictionary, 2^nd Edition, defines “absolute” to mean “something that is unconditional, final, complete and without any restrictions or conditions”. (emphasis added).

23Vice-Chair Abramsky also noted that the exception to the prohibition against a probationary employee grieving, was an alleged breach of an employment-related statute.

28… Both parties recognize that under Re District of Parry Sound Social Services Administration Board, supra and Section 48(j)(12) of the Labour Relations Act the parties’ may not contract out of their obligations under employment-related statutes and that such statutes form a part of the collective agreement.

24It was not disputed that I am bound by that determination pursuant to the Board’s decision in Re: E. Blake et al. and Amalgamated Transit Union, GSB No. 1276/87 et al. (Shime,1988). That decision determined the Board speaks as one entity. Accordingly, each decision issued by an individual panel becomes a decision of the Board, bearing significant precedential value.

25In this instance, the employer pointed out the grievance makes no reference to discrimination, the Human Rights Code (the “Code”), or Article 2.02 of the Collective Agreement, in which the employer and union agree to be bound by the Code. Nor is there any reference to the grievor having completed his probationary period or the grievance being “unlawful”.

26Further, there was no discussion of these allegations at the Step 2 meeting, or any reference to them at any time prior to the union’s February 20, 2019 correspondence, setting out the three allegations for the first time.

27Accordingly, the employer submits none of the allegations regarding whistleblowing, discrimination, and a completed probationary period form part of the grievance. Rather, they constitute an attempt to expand the grievance beyond its original scope.

28The employer asks that the three allegations not be heard, and that the grievance proceed on the basis of what remains – which may give rise to further preliminary issues.

29In addition to McCurdy, supra, and Blake, supra, the employer relied on: Brown & Beatty, Canadian Labour Arbitration, at 2:1300 and 3:2200; Ontario Hydro v. Power Workers’ Union, 1996 CarswellOnt 6104 (Burkett); Fanshawe College v. O.P.S.E.U., 2002 CanLII 79073 (ON LA), 2002 CarswellOnt 5407 (Burkett); Greater Sudbury Hydro Plus Inc. v. C.U.P.E., Local 4705, 2003 CarswellOnt 5849 (Dissanayake); Re Electrohome Ltd. v. I.B.E.W., Local 234 (Rayner); Windsor (City) v. W.P.F.F.A., 186 L.A.C. (4th) 225 (Springate); Baranyi v. Canada (Deputy Head – Border Services Agency) (Richardson); Ontario (Ministry of Children and Youth Services) and OPSEU (Rafo), Re, 114 C.L.A.S. 54 (Dissanayake); OPSSU and OPSEU (Job Posting), Re, 2013 CarswellOnt 11842 (Dissanayake); OPSEU (Hagopian) and Ontario (Ministry of Finance), GSB # 2017-2476 (Gee, 2019); Candu Energy Inc. and SPEA (2012-08-SE) Re, 115 C.L.A.S. 189 (Gee); OPSEU and Ontario (Ministry of Children, Community and Social Services) 138 C.L.A.S. 46 (Devins); and, George Brown College and OPSEU (Stever), Re, 2015 CarswellOnt 10655 (Cummings).

Union

30While the union conceded the language of the grievance may be vague and lacking specification, it pointed out that nothing in the Collective Agreement sets out requirements for the content of grievances.

31Rather, Article 4 of the Collective Agreement simply requires grievances to be in writing and on the appropriate form. Accordingly, this grievance is in compliance with the Collective Agreement requirements.

32The union denied the three allegations were an attempted expansion of the scope of the grievance. It maintained that although the allegations may not have been articulated in the grievance or the grievance process, they are inherent in the grievance as worded, and form the bases on which the termination was unjust and untimely.

33Specifically, the union submitted that as the grievor’s termination was tainted by discrimination in violation of the Code, and constituted a reprisal pursuant to the PSOA, it cannot on its face be “just”.

34Further, the union maintained that as the grievor’s manager had advised him that he had successfully completed his probationary period, any dismissal without just cause protections was “untimely” – as alleged in the grievance.

35The union pointed out that when dealing with a challenge to the scope of a grievance, it is important to distinguish between the claim, the legal arguments in support of the claim, and the remedies that might follow. The union maintained that in this instance, the employer’s challenge is related to the legal argument in support of those allegations.

36In any event, the union also maintained these allegations were known to the employer as a result of the grievor’s August 16, 2018 e-mail to its CEO. As the grievance was filed shortly after, the union submits the inference can be drawn that the employer was aware the allegations were included.

37In the alternative, the union pointed out that vagueness does not render a grievance inarbitrable. Rather, if I were to find the grievance as drafted to be vague, this would be rectified by particulars, and does not affect my jurisdiction to hear all three allegations.

38The union relied on the following: Parry Sound (District) Social Services Administration Board v. Ontario Public Service Employees Union, Local 324 (O.P.S.E.U.), 2003 SCC 42, [2003] 2 S.C.R. 157; York Region District School Board v. Ontario Secondary Teachers' Federation (District 16) (Cato Grievance) District 16 O.S.S.T.F. (the "Union"), [2005] O.L.A.A. No. 662; Enbridge Gas Distribution Inc. v. Communications, Energy and Paperworkers Union of Canada, Local 975 (Rate of Pay Grievance), [2006] O.L.A.A. No. 128; Windsor (City) v. Professional Fire Fighters Assn. (Elliot Grievance), [2012] O.L.A.A.No. 572; and, Ontario Public Service Employees Union v. Ontario (Ministry of Transportation (Labanowicz Grievance)), [2014] OGSBA No 117.

Analysis

39The issue I must decide is whether the three challenged allegations, i.e. the grievor was no longer a probationary employee at the time of his termination; he was terminated in violation of the Code; and/or in violation of the PSOA, can be found within the grievance before me.

40The judgement of the Ontario Court of Appeal in Blouin Drywall Contractors Ltd. v. United Brotherhood of Carpenters and Joiners of America, Local 2486 (1975),1975 CanLII 707 (ON CA), 57 D.L.R. (3d) 199 sets out the foundational principles in making this determination. At page 204, Mr. Justice Brooke wrote:

No doubt it is the practice that grievances be submitted in writing and that the dispute be clearly stated, but these cases should not be won or lost on the technicality of form, rather on the merits and as provided in the contract and so the dispute may be finally and fairly resolved with simplicity and dispatch.

He went on to state:

Certainly, the board is bound by the grievance before it but the grievance should be liberally construed so that the real complaint is dealt with and the appropriate remedy provided to give effect to the agreement provisions.

41The various authorities placed before me extrapolate from those principles.

42In the first instance, it is clear arbitrators take their jurisdiction from scope of the grievances before them. That having been said, grievances are to be liberally construed so as to allow the real dispute between the parties to be resolved. Technicalities should not be allowed to interfere with the hearing of the true merits of the grievance. Similarly, a lack of particulars, ought not to defeat an examination of the merits, when provision of particulars can resolve any ambiguity.

43Arbitrators have cautioned, however, about the limits of this approach, in that it does not extend so far as to enable the provision of “particulars” or an amendment for the sake of “clarity”, to in effect substitute one grievance for another. Accordingly, grounds which have not been subject to the grievance procedure are not properly before the arbitrator. As stated by Vice-Chair Dissanayake in Ontario (Ministry of Children and Youth Services) and OPSEU (Rafo), supra, at paragraph 13:

13. While arbitrators and this Board have endorsed and followed the approach espoused by the Ontario Court of Appeal in Blouin Drywall Contractors Ltd. v. C.I.A., Local 2486 1975 CanLII 707 (ON CA), [1975 CarswellOnt 827 (Ont. C.A.)], (supra) that cases should be decided on the merits rather than on technicality or form, Boards have balanced the need for flexibility with the court's caution that 'the Board is bound by the grievance before it'. In doing so, this Board has particularly emphasized a policy consideration. Namely, the desirability and importance of the parties discussing and attempting to resolve issues in dispute during the grievance procedure before coming before it for arbitration. …

44Similarly, Arbitrator Dissanayake, in his decision in Greater Sudbury Hydro Plus Inc. v. C.U.P.E., Local 4705, supra, at paragraph 14 referenced the following quote from Liquid Carbonic Inc. v. U.S.W.A. (1992), 1992 CanLII 14618 (ON LA), 25 L.A.C. (4th) 144 (Ont. Arb.) (Stanley), at page 147:

The whole process of grievance arbitration, and grievance procedure, is designed to permit the parties at the earlier stages to resolve the dispute between themselves. Hence, collective agreements invariably contain grievance procedure provisions so that grievances are funneled to an arbitration board only after the parties have had a chance to resolve the matter. It is our view that the comments of Professor Laskin and the decision in the Re Blouin Drywall case attempt to accommodate both values. If the issue raised at the arbitration hearing is in fact part of the original grievance, a board of arbitration should not deny itself jurisdiction based on a technical objection as to the scope of the original grievance. To do so would deny the value of flexibility and would be to compel the parties to draft their grievances with a nicety of pleadings. On the other hand, if the issue raised by one of the parties is not inherent in the original grievance, for the board to permit the party to raise that issue as part of the original grievance would be to deny the parties the benefit of the grievance procedure in an attempt to resolve the issue between themselves. In fact, it would be to permit one party to substitute a new grievance for the original grievance. [emphasis added]

45The requirement for sufficient clarity within the grievance to ground an issue raised at arbitration is not only fair, but necessary to give meaning to the grievance process itself.

46Not all grievances are or should be arbitrated. The grievance process gives the parties an opportunity to avoid the arbitration of issues when they can be resolved by the parties themselves.

47Indeed, this is articulated in Article 4 of the Collective Agreement between the parties:

ARTICLE 4 - GRIEVANCE PROCEDURE

4.1 It is the intent of this agreement to adjust as quickly as possible any complaints or differences between the parties arising from the interpretation, application, administration or alleged contravention of this agreement including any question as to whether a matter is arbitrable.

48Delay in raising an issue until preparation for arbitration eliminates the opportunities for early resolution built into the grievance process, negotiated and agreed to by the parties in Article 4.1.

49Vice-Chair Lynk, in OPSEU (Labanowicz) and Ministry of Transportation, supra, articulated, at paragraph 21, the following “test” when determining the scope of a grievance:

21 The accepted test when determining if a claim raised subsequent to the filing of the grievance can be adjudicated as part of the live grievance goes to whether it can be reasonably construed to be an inherent part of the grievance, or whether it is a truly different and distinct claim: OPSEU (Jones et al) and Ministry of Labour, supra. The test is objective.

50The issue is then, whether, on an objective basis, the three allegations challenged by the employer in this instance, can be said to be inherent in the grievance as drafted.

51There is no dispute there is no express reference to the three allegations within the Grievance. While clarity is to be encouraged when drafting grievances, the language contained in the grievance is not necessarily determinative.

52It is telling, however, that in this instance, at no time during the grievance process were any of the three allegations raised, discussed or considered. This suggests neither party understood these allegations to constitute inherent components of the grievance.

53Specifically, there was no suggestion the reference to the grievor’s termination being “untimely” referred to anything other than the two post-termination sick days granted to grievor, which were the focus of the Step 2 grievance meeting.

54More importantly, there was no indication, until the eve of the arbitration, six months later, that an inherent remnant of that timeliness challenge was that the grievor was no longer a probationary employee when his employment was terminated, as his manager had indicated he had successfully completed his probationary period.

55It appears the union’s position regarding the grievor’s status is that the employer is now estopped from taking the position he was still a probationary employee at the time of his termination.

56There is no question the parties were denied an opportunity to address and resolve this issue as part of the grievance process, as it was not raised until the eve of the arbitration.

57This is more than a technical irregularity or want of particulars. Rather, I find this to be an entirely different allegation, which would significantly and substantially change the nature of the entire grievance, including the union’s entitlement to challenge the grievor’s termination.

58Accordingly, I find the allegation that the grievor had completed his probation period earlier than the six month period agreed to by the parties in Article 7.2(1) to be an expansion of the original grievance, and is not properly before me.

59This brings me to the allegation the grievor’s termination was unlawful, as it constituted discrimination pursuant to the Code and/or reprisal in violation of the PSOA.

60As indicated above, there is no dispute that I am bound by the Board’s decision in Amalgamated Transit Union - Local 1587 (McCurdy), supra.

61Indeed, since the Supreme Court of Canada decision in Parry Sound, supra, there is no dispute that the rights and obligations of employment-related statutes are implicit in each collective agreement, and subject to grievance by probationary employees. Further, section 48(j)(12) of the Labour Relations Act grants arbitrators the power to interpret and enforce the substantive rights and obligations of such statutes.

62In Parry Sound, a probationary employee was dismissed shortly after returning from maternity leave. Her grievance read: “I grieve that I have been discharged from my position without justification and that this decision was arbitrary, discriminatory, in bad faith and unfair.”

63The Court held the arbitration board had jurisdiction to determine whether the grievor’s termination was inconsistent with the provisions of the Employment Standards Act (“ESA”), which prohibits dismissal because employees take “pregnancy leave”.

64However, in allowing the grievance to proceed, the Court found the employer was aware from the outset that the essence of the grievance was that the grievor viewed her termination as a consequence of taking maternity leave. This did not change. Rather, the ESA was simply the vehicle by which liability for such discrimination could be argued. This in an important distinction from the facts in the instant case, which will be addressed further below.

65Subsequent cases have applied a similar analysis.

66In the case of Enbridge Gas Distribution Inc., supra, Arbitrator Burkett affirmed, at paragraph 7 that:

…[A]s long as the claim is clearly identified in the grievance, there is no absolute requirement upon a grieving party to specify within the grievance the various legal arguments that support the claim nor is there an absolute requirement to specify in detail the various remedial elements necessary to fully redress a successful claim. [emphasis added]

67Arbitrator Burkett went on to find, at paragraph 8, that the employer had been aware “from the outset” that the union in that instance was claiming payment under the collective agreement for joint trench work, and should have been aware from the outset that such payment might take the form of a classification adjustment, a premium or an equity-based payment of some sort. Having been advised of this prior to the first day of hearing, Arbitrator Burkett found such advice did not constitute an improper expansion of the grievance.

68Similarly, in Windsor (City), supra, the grievor had a history of absenteeism, including several months on an approved medical leave. Prior to his termination for unexplained additional absences, the grievor advised he had been under doctor’s care and provided a doctor’s note. Before deciding to terminate the grievor’s employment, the Fire Chief met with the grievor’s physician to discuss the contents of the note and the grievor’s situation. (see para 32)

69The employer argued the grievance’s general allegation of “unjust” dismissal was too narrowly worded to encompass an allegation of a Code violation. However, Arbitrator Snow affirmed grievances are to be given a liberal reading, as they are most often drafted by non-lawyers. On that basis, he held that the allegation of unjust dismissal, read liberally, includes the claim of a violation of the Code.

70Again, in that instance, there appears to have been a clear understanding of the factual underpinnings of the grievance. Specifically, the grievor’s history of absenteeism, and indication he was under doctor’s care, including the provision of a doctor’s note which was reviewed with the doctor and considered prior to the grievor’s termination, suggests reliance on the disability-related Code protections to be inherent in the grievance – if read liberally.

71Each case turns on its own unique facts. A somewhat different result was reached by the Arbitration Board in York Region District School Board, supra.

72In that instance, the Arbitration Board exercised its discretion to hear evidence relating to an allegation of racism, despite the original grievance simply alleged the grievor had been unjustly termination in violation of the Article of the collective agreement which prohibited inter alia, dismissal without just cause.

73The Board referenced facts similar to those in this instance, and acknowledged the problematic consequence of its decision at paragraph 27:

We also have here a situation where the Employer was not made aware that racism would be alleged in this arbitration until one week prior to the scheduled commencement of the hearing. The most significant consequence of this late notice is that the issue of racism was never raised in the grievance proceedings. This deprived the parties of the opportunity to discuss the issue of racism at the local decision level at the early stages of the dispute. It deprived the School Board of the opportunity to reassess its decision to terminate in light of the allegations and the Federation's supporting affidavit. It also deprived both parties of the opportunity of factoring this issue into the referral to arbitration and the choice of arbitrators. All this is very serious and cannot be easily overlooked.

74However, despite these similarities, there are also several critical factual distinctions from the instant case. Specifically, the Board in York Region District School Board noted the onus was borne by the employer in that instance, and consequently, the union was not required to spell out any defences it might raise in response to a claim the dismissal was for just clause. In addition, the parties mutually agreed to bypass Step 2 of the grievance process, thus forfeiting the opportunity of disclosure. Finally, the expert analysis leading to the conceptualization of the facts into allegations of racism, did not arise until “months later”. In explaining its failure to raise the allegation of racism earlier, the union characterized this evidence as “after acquired evidence” that “could reasonably not have been discovered beforehand”.

75Such facts are not present in the instant case. Due to the grievor’s probationary status the employer does not bear the burden to prove just cause. Rather, the union must establish any statutory violations which would constitute his termination to be “unjust” in that context. As stated by the Arbitration Board at paragraph 33 in George Brown College, supra, in cases where the union bears the onus, it is required to set out all of its allegations in a timely way.

76Further, in this instance, the employer met with the union in a Step 2 meeting, in an attempt to inform itself, but was denied an opportunity to understand and resolve these additional serious allegations during the grievance process.

77I note as well that the somewhat unusual result in York Region District School Board compelled the Arbitration Board to take the also unusual step of concluding with the following:

Conclusion and Caveat

34 ... It is important for readers of this decision to recognize that this Preliminary Award does not mean that a discrimination claim can be raised at any time in an arbitration if the issues have not been raised during the grievance procedure. The conclusion in this case is based on the particular facts of this case. We believe that there is an effective presumption against hearing matters that were not raised in the Grievance Step process. Parties have a responsibility to utilize the grievance process fully and fruitfully. [emphasis added]

78It is worth noting as well, that an allegation of “discrimination” as prohibited by the Code is significant, as is an allegation of reprisal in violation of the PSOA. Such allegations introduce new and different analyses, which carry with them significant potential remedies. They require the employer to undertake an investigation which significantly differs from simply informing itself of the reasons for termination of a probationary employee where it has, “absolute and sole discretion” to do so. This is not possible if it is not aware of any factual basis on which that legal argument will be made.

79Reliance on such allegations would, in most instances, be a prominent and central factor in a grievance. In this instance they are conspicuous in their absence.

80The union pointed out the Court in Parry Sound, supra held that procedural requirements should not be stringently enforced in those instances where, as in that instance, the employer suffered no prejudice, and that in this instance the employer has not alleged prejudice.

81However, I understand this to be an articulation of a similar principle to that articulated in Blouin Drywall, supra, i.e. that cases should not be won or lost on the technicality of form and that grievances should be liberally construed unless it would be unfair to do so.

82It cannot follow that allegations of statutory violations can be raised for the first time on the eve of the arbitration process, regardless of whether the grievance contains any allegations that form the basis for such liability, and when the result would be the substitution of an entirely new grievance.

83I find that is what occurred in this instance. Specifically, I find there was no indication, until the eve of the arbitration, that the grievor alleged factual bases regarding which he now also claims violations of the Code and PSOA.

84It is true, as the union pointed out, that in this instance, the Collective Agreement does not mandate the contents of grievances, as was the case in George Brown College, supra. The collective agreement in that instance required that “an employee shall present a signed grievance … setting forth the nature of the grievance, the surrounding circumstances, and the remedy sought. (paragraph 13)

85However, in applying a liberal reading to the grievance, I must still be able to conclude, on an objective basis, that the employer could reasonably have discerned the three challenged allegations to be issues inherent in the grievance.

86As stated by Arbitrator Dissanayake in Greater Sudbury Hydro Plus Inc. v. C.U.P.E., Local 4705, supra at paragraph 17, for an arbitrator to include an issue on a liberal reading, s/he "must be able to conclude the employer reasonably should have understood upon reading the grievance that the issue in question was part of the grievance.” (emphasis added).

87In this instance, I am unable to conclude the employer reasonably should have understood from the grievance that the three challenged allegations were part of the grievance.

88Not only was there no reference in the grievance to any of the issues, but they were not raised in the grievance meeting.

89Further, the union could have made a timely amendment to the grievance to add its reliance on these three allegations. However, it failed to do so.

90While I appreciate the grievor, in his August 16, 2018 e-mail to the employer’s CEO, raised concerns related to those the union now wishes to pursue.

91It is worth noting the grievor’s comments in that e-mail are less than clear, and in some respects, contradictory on their face.

92In any event, it is not unusual for employees to raise a host of issues with their employers. It does not follow that employers can reasonably be held to understand that any prior concerns or complaints are inherent in any subsequent grievance, regardless of the absence of any express indication of that being the case.

93The folly of such an approach is evident in this instance. Specifically, the grievor’s August 16, 2018 e-mail also maintains his letter of termination is “factually not valid”, and the “contents falsely reasoned and illegal.” However, none of those allegations is now pursued by the union.

94Rather, it is for the union, which has carriage of the grievance, to determine and articulate the parameters of the grievance, and grounds it will pursue. The cases are clear, the employer is entitled to look to the union for clarity regarding the issues it must investigate and address to resolve the dispute.

95In this instance, as the challenged allegations did not make their way either into the subsequent grievance or the discussions of the parties about the grievance, it would be reasonable for the employer to conclude the union had made a conscious decision not to pursue any concerns related to those raised by the grievor in his August 16, 2018 e-mail.

96Accordingly, I do not find the grievor’s August 16, 2018 e-mail to the CEO can be relied upon to support the three allegations now put forward by the union.

Determination

97Accordingly, for the foregoing reasons, I find the union’s attempt to now allege the grievor was no longer a probationary employee, and that his termination constituted a violation of the Code and/or the PSOA, to constitute an improper expansion of the grievance before me.

98These allegations are not part of the August 20, 2018 grievance and are not arbitrable in this proceeding.

99I remain seized with respect to any remaining issues arising from this grievance.