GSB# 2016-0387; 2016-0589

UNION# 2016-0430-0004; 2016-0430-0008

IN THE MATTER OF AN ARBITRATION

Under

THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT

Before

THE GRIEVANCE SETTLEMENT BOARD

BETWEEN

Ontario Public Service Employees Union (Abel)

Union

• and –

The Crown in Right of Ontario (Ministry of Transportation)

Employer

BEFORE

Daniel Harris

Arbitrator

FOR THE UNION

Lesley Gilchrist Ontario Public Service Employees Union Senior Grievance Officer

FOR THE EMPLOYER

Julia Evans Treasury Board Secretariat Legal Services Branch Senior Counsel

HEARING

January 16, 2017; August 14, 2018

Decision

1This matter involves an allegation by the Union, the Ontario Public Service Employees Union, that the Employer, the Crown in Right of Ontario (Ministry of Transportation), has breached the terms of a Memorandum of Settlement (MOS) entered into on January 16, 2017. The grievor was a probationary employee. He was released during his probationary period; the Union grieved his release and the MOS was entered into to resolve that grievance.

2The essential elements of the MOS, for the purposes here, are that the probationary release was rescinded in favour of a letter indicating that the grievor’s fixed-term contract had expired. Further, paragraph three of the MOS provided the grievor with access to the Ontario Public Service (OPS) employment restricted database for a period of nine months. Paragraph 3 reads as follows:

3. The Grievor shall be provided with access to the OPS employment restricted database for a period of nine (9) months. The Employer will provide the Grievor with the required information and instructions to access the restricted database within 30 days of the date of this MOS, after which date the nine-month period will commence.

3The Union describes its allegation that the MOS has been breached in the following terms, set out in paragraph one of its written submissions, as follows:

1. The Union has provided particulars as to the alleged breach attached as Exhibit 1. The Union takes the position that the settlement the Grievor reached on January 16, 2017 has been breached when his ability to apply for internal positions was compromised by the Office of the Fairness Commission, when the interview he secured through the Minutes of Settlement (“MOS”) was tainted by discrimination and was not conducted in good faith.

4The Union says that there is an implied term in the MOS that the grievor would be considered for any positions fairly and without discrimination. The grievor applied for over fifty positions during the nine month period; he was granted two interviews. His former employer, the Ministry of Transportation, says that the terms of the MOS were met, since the interview process itself is not covered by the terms of the MOS. It said at paragraph four of its written submissions that “those allegations are not within the jurisdiction of the Arbitrator, whose only role is to determine whether or not the MOS has been complied with.

5The Union submitted that a term is implied in an agreement where:

(1) If it is necessary to imply a term in order to give “business or collective agreement efficacy” to the contract, in other words, in order to make the collective agreement work; and

(2) If, having been made aware of the omission of the term, both parties to the agreement would have agreed without hesitation to its insertion.

(Union Submission, Paragraph 8)

6The Union goes on to submit that the “ability to apply and to be considered is obviously implied in the MOS … and that the parties would, without hesitation, have agreed on entitlement to apply and be considered for position flowed from paragraph 3 of the MOS.” (Union Submission, paragraph 11).

7The thrust of the Union’s submissions is that the Employer’s obligations under the MOS extended further than merely providing access to the restricted data base to also include a right for the grievor to apply and be considered for positions in the database. The agreed upon facts are that he did apply for such positions and consideration of those applications resulted in two interviews. The Employer does not take issue with the Union’s submission that the MOS permitted the grievor to apply and be considered for positions in the restricted database, which he did. The Employer submits that the terms of the MOS were complied with, including paragraph three set out above.

8It is also agreed that the Employer provided the grievor with written instructions, in a memorandum dated February 7, 2017 on “How to apply to restricted OPS positions.”

9In paragraphs 33 and 34 of its written submissions the Union extends its implied term to include the right to apply and be considered without discrimination or bad faith. It notes that the grievor’s applications were accepted and considered and that, “[t]he Grievor has raised an issue for exactly one of those applications.”

10Where the parties part company is that the Union considers the Employer, as referenced in the MOS, to include the one application complained of. Ironically that was the “Office of Fairness Commission”.

11The Union’s submissions go on to discuss bad faith and discrimination, which touch on the merits of the issues raised in that one application.

12For its part, the Employer agrees that there should be no discrimination or bad faith in a hiring process. Its written submissions read, at paragraph four and five as follows:

4. The Union’s allegations concern the alleged discriminatory conduct of an interview that the Grievor received, as a result of one of these applications. While the Employer takes its obligations under the Human Rights Code seriously, and is committed to an interview process that is free of discrimination, it is respectfully submitted that the interview process is not covered by the terms of the MOS. Accordingly, those allegations are not within the jurisdiction of the Arbitrator, whose only role is to determine whether or not the MOS has been complied with.

5. There are no exceptional circumstances in this case that would permit the Board to set aside the settlement. Accordingly, the Board should give effect to the terms and find that the Employer has complied with the terms of the MOS.

13The Employer submits that because the grievor’s employment ended before the date of the MOS, he was not an employee at the time of the alleged infraction, so had no right to grieve the circumstances of that one application. His only recourse before this Board is to find a breach of the MOS.

14As set out above, it is the submission of the Ministry of Transportation (MTO), signatory of the MOS, that it discharged its obligations thereunder. That is, it did not control the application processes and did not undertake to do so in the MOS beyond facilitating the grievor’s right to access the restricted database and facilitate the use of it to apply for positions in it.

15The Union in its written submission leaps past the Employer’s jurisdictional issue by, in essence, suggesting that the MTO had agreed to be the guarantor of the interview process run by other ministries. The Union’s submission at paragraph 39 reads as follows:

39. This leads to the inescapable conclusion that, had the parties explicitly discussed the issue, it is completely inconceivable that the Employer would have asserted that all they were agreeing to was mere access to the database. Similarly it is completely inconceivable that the Employer would have asserted, if asked, that the Grievor was contracting merely for the right to “apply into a void”. Certainly the Grievor was not entitled to an outcome; indeed, he was arguably not entitled to any particular process, or even competence on the part of the employer. However, the MOS provides the extremely narrow and limited right to apply and be considered for positions. With respect reading both the term, the MOS as a whole and noting the subsequent conduct of the parties would suggest that there was agreement on this issue. This, in the Union’s view, means that the Grievor has the right to be considered without discrimination or bad faith.

(emphasis added)

16Here the Employer properly does not disagree with the proposition that the grievor had the right to be considered without discrimination or bad faith. It says that the Board has no jurisdiction to entertain the merits of those allegations because they fall outside the ambit of the MOS. His remedies lie elsewhere.

17The Union relied upon the following authorities: Canadian General-Tower Ltd. and U.R.W., Local 292, (1990), 1990 CanLII 12740 (ON LA), 12 L.A.C. (4^th) 153 (Craven); McKeller General Hospital and ONA, (1186), 1986 CanLII 6710 (ON LA), 24 L.A.C. (3d) 97 (Saltman, Butler, Gordon); Metropolitan Toronto Zoo and CUPE 1600, 2004 CarswellOnt 3234, (Brent); Pacific Press v. G.C.I.U., Local 25-C, 1995 CarswellBC 3177, (Bird).

18The Employer relied upon the following authorities: Gottwald and Ministry of the Attorney General, PSGB,P/0127/96 (Leighton); OPSEU and Ministry of the Solicitor General and Correctional Services (Harrison et al), GSB #1164/92, (Knopf); OPSEU and Ministry of the Environment (McDonald), GSB #2005-3002, (Mikas); Fisher and Ludlow Inc. v. CAW-Canada Local 504 (Walton Grievance), (2012) 220 L.A.C. (4^th) 436, (Newman); Canada Post and CUPW (Winlaw), (1993) 36 L.A.C. (4^th) 216, (Jolliffe); Metropolitan Toronto Zoo and CUPE Local 1600 (Wage Increase Grievance); [2004] O.L.A.A. No. 217, (Brent); Selkirk College and BCGSEU (Hatherly Grievance), (1996) 1996 CanLII 20430 (BC LA), 59 L.A.C. (4^th) 14, (Chertkow).

19I have carefully considered the parties’ submissions, including the jurisprudence relied upon.

20First, there is no ambiguity in the MOS. The Employer agreed to facilitate access to the restricted database, which it did, and more, by way of assisting the grievor in how to make applications. Had the parties intended to allow the grievor to challenge the resulting application processes before this Board they could have used language to clearly say so, but they did not.

21Second, the issue here is the extent of my jurisdiction. I am limited to interpreting the MOS. Since Mr. Abel was not a member of the OPSEU bargaining unit at the time of the alleged infractions, the Union has no basis upon which it may file a grievance on his behalf. Nor does it assert such a right. It properly casts its complaint as a breach of the MOS. However, looking within the four corners of the MOS, there is no breach. As the Employer put it in paragraph 39 of its written submission, “The Grievor is in no different position than any other external candidate who had applied for a position in the OPS”.

22The Union is right to say that the MOS extends to include Mr. Abel’s ability to apply and be considered for positions on the restricted, internal list. The Employer does not disagree with that contention.

23One would expect that such consideration would be fairly made, without discrimination. The allegations against the Office of Fairness Commission of bad faith and discrimination are serious and deserving of a process to determine their veracity. However, the issue here is whether it is the Grievance Settlement Board that has the jurisdiction to deal with that within its limited mandate here to interpret the MOS.

24I cannot agree with the Union’s proposition that the Ministry of Transportation, would have agreed without hesitation to insert into the MOS, that it was the guarantor of the fairness of the application processes of other Ministries. It made applying to those jobs available to Mr. Abel and in doing so discharged its obligations pursuant to the MOS.

25There has been no breach of the MOS.