GSB# 2016-1301; 2016-1568; 2016-1791; 2016-1920; 2016-1921

UNION# 2016-0108-0016; 2016-0999-0059; 2016-0220-0019; 2016-0220-0020;

2016-0220-0021

IN THE MATTER OF AN ARBITRATION

Under

THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT

Before

THE GRIEVANCE SETTLEMENT BOARD

BETWEEN

Ontario Public Service Employees Union (Campbell et al)

Union

• and -

The Crown in Right of Ontario (Ministry of the Solicitor General)

Employer

BEFORE

Nimal Dissanayake

Arbitrator

FOR THE UNION

Jane Letton Ryder Wright Blair & Holmes LLP Counsel

FOR THE EMPLOYER

Thomas Ayers Treasury Board Secretariat Legal Services Branch Counsel

HEARING

July 17, 2019

DECISION

1The Board is seized with a group grievance wherein a number of Correctional Officers claim either that they had not been allowed to progress through the wage grid, or that having so progressed the increased wages they received as a result had been "clawed back" by the employer. It is alleged that this is contrary to the terms of an interest arbitration award by Arbitrator Kevin Burkett.

2When this matter first came before me on March 14, 2017, the respective counsel provided me with relevant documents and made representations on their respective positions on the merits of the grievance, and explored with my assistance, options for resolution. The evidence is that on May 24, 2017, the parties executed a Memorandum of Settlement ("First Interim MOS") setting out a process for exchange of information needed for settlement of the grievance. Subsequently on August 8, 2018, the parties executed a further Memorandum of Settlement ("Second Interim MOS") containing additional terms relating to the First Interim MOS.

3When the Board convened on July 17, 2019, I was advised that the parties had disputes on three specific issues relating to the implementation of the two Interim MOS, and that they had agreed to argue those one after the other, and obtain decisions. It was agreed that I had jurisdiction. The first of the issues in dispute was argued, and this decision deals with it.

4The issue was described as one of "timeliness". The employer takes the position that in the First Interim MOS the union had agreed to provide specific information relating to the identity of the employees on whose behalf a claim is made, and the nature of the claim of each identified employee, by specified time limits. It is alleged that the union was now making claims on behalf of ten employees even though the required information relating to them had not been provided within the specified time limit.

5For purposes of this dispute the following provisions of the First Interim MOS are relevant:

1. The Parties agree that the Employer will provide to the Union a list of all employees who were subject to recovery of overpaid wages ("the Clawback") pursuant to the award by Arbitrator Burkett, dated May 26, 2016 within twenty-one (21) calendar days of the signing of this interim Settlement.

2. The Union shall identify and provide, to the best of its ability, a merit date prior to January 1, 2016 for all employees for whom the Union takes the position that the Clawback was not done in accordance with the Burkett award, and an explanation as to why that is the case. Specifically, the list shall be those employees who the Union is alleging that their merit date occurred prior to January 1, 2016 and did not receive a merit increase pursuant to the terms of the collective agreement or any other applicable policy. This list shall be provided to the Employer within one hundred and twenty (120) calendar days of the interim Settlement.

3. If the Union cannot identify a specific merit date prior to January 1, 2016 but nonetheless believes that any further Employee's merit date was incorrectly calculated, it shall, in addition to the list identified at paragraph 2, provide an explanation to the Employer as to why the Union believes that to be the case.

4. After providing the information identified in paragraphs 2 and 3, the Union reserves its right to request disclosure from the Employer to assist in its determination of the merit date of Employees whose specific merit date is not identified but remains in dispute.

5. In cases where there is no dispute between the Parties as to whether an employee should be reimbursed for the Clawback, the Employer will identify such employees to the Union on the above-noted list and reimburse those employees.

6There is no dispute that the employer met the time limit it had to provide the list of employees referred to in para.1 of the MOS. The evidence is that the union took various steps to gather the information it was required to provide in order to comply with the time limit in para. 2. Shortly before the expiry of the time limit, the union requested and the employer granted an extension of an additional 30 days.

7Employer counsel submitted that the use of the word "shall" in para. 2 indicates that the parties intended the time limit to be mandatory. There is no question that the union was well aware of the initial time limit as well as the extended time limit. He acknowledged that the union had made significant efforts, but the undisputed fact is that did not meet the time limit. Nine correctional officers were identified approximately five months after the time limit had passed, and a Probation and a Parole officer was added one day late. Counsel submitted that if the union was having difficulty gathering the information, it could have asked for a longer extension of time. It requested only a 30 day extension.

8Employer counsel referred to a number of decisions, including Re Dale et al, 0783/00 (Abramsky) and Re Kyba et al, 2016-2013 (Dissanayake) in arguing that the Board has consistently recognized the principle of "sanctity of settlements", and that the Board, and arbitrators generally, do not depart from this principle even where the terms of settlement agreed upon by the parties may not seem to be fair or equitable. Therefore, he argued, the Board should apply the principle even in the case of the employee who was added only one day late. Counsel submitted that the Board should dismiss the claims being made on behalf of the ten employees who were added out of time.

9Union counsel pointed out that the union was required to canvass employees employed in over 30 correctional institutions, as well in excess of 120 Probation and Parole Officers, in order to ascertain employees who had claims. In the case of the Probation and Parole Officer there was a misunderstanding. The employee had mistakenly thought that she was already on the union's list when she saw her name on the list the employer had submitted pursuant to para1. She realised her mistake only on December 6 and her name was added the next day.

10Union counsel did not dispute that the union did not meet the extended time limit. However, she argued that the arbitral principle sanctity of settlements is inapplicable in this case, because there was no settlement of any grievance. The settlement was only about a process to assist parties trying to settle a grievance. The Interim Settlement did not, and was not intended to, settle the grievance itself. The case law the employer relied on are about parties not complying with terms of a MOS settling a grievance.

11Counsel pointed out that although the time limits in the First Interim MOS had passed, the parties had to negotiate modifications and additions to the process it had agreed to in it, by executing a second Interim MOS. The parties were still continuing the information gathering. The grievance still remains unresolved. Therefore, the addition of ten more names, even though technically late, would not cause the employer any significant prejudice.

12Counsel submitted that although s. 48 of the Labour Relations Act is not directly applicable in this case, the Board should excuse the delay by considering equitable factors arbitrators apply when extending time limits in cases where there had been delay in filing a grievance. She submitted that the grievance is about denial of a fundamental right employees have under a collective agreement, namely entitlement to pay in accordance with it. Settlement of the grievance itself was not delayed by the union's failure to meet time limits. The parties had to execute a second MOS to make it clear and explicit that no names may be added after a specific date. There is no significant prejudice to the employer.

13In reply, employer counsel submitted that, although the Second MOS made it explicit, the employer did not at any time represent to the union that the time limits in the First MOS were not binding. He argued that this case is not about late filing of a grievance, and therefore the arbitral principles in those cases are not applicable. He argued that the execution of the Second Interim MOS is irrelevant because by then the limits had already passed. Counsel cautioned that the Board should not go behind a settlement on grounds of fairness and equity, because it would be a departure from established arbitral principles.

DECISION

14The task of the Board in this case is to determine the intention of the parties. The documentary evidence is that when on November 27, 2017 the union submitted the information it was obliged to provide under para 2 of the First Interim MOS, the union in its covering letter stated, "We reserve the right to add to it in the event members identify themselves". On December 1, 2017, the employer responded, stating inter alia, that it was the employer's position "that the union is not permitted, under the terms of the MOS, to add further names to the list after December 4, 2017".

15The Second Interim MOS was executed on August 8, 2018. Para 3 provides:

3. The Union confirms that, as of May 3, 2018, it has provided the names of all individuals it maintains are entitled to compensation as a result of their merit date occurring prior to January 1, 2016 in the Ministry of Community Safety and Correctional Services and the Ministry of Children and Youth Services.

16The evidence indicates that the union, while aware of the existence of the time limit in the First Interim MOS, and did not understand it to be one that would result in the foreclosure of any claims identified later. Thus, it purported to reserve the right to add names if employees come forward with claims later. As employer counsel submitted, it was reasonable for the employer to expect that there would be a cut-off date for making claims, and that it would not be acceptable to have employees come forward with claims "for years going forward". The evidence is that following further discussions that concern was addressed by paragraph 3 of the Second Interim MOS, wherein the union explicitly agreed to a cut off date of May 3, 2018.

17I have concluded that the principle of sanctity of settlements does not apply in this case. I agree with union counsel that this principle is about settlement of grievances. The Interim MOS here is about an information gathering process agreed to following mediation. It was not a MOS settling any grievance. The time limit in question is not one stipulated in a collective agreement or statute. In the circumstances, to have the consequence of employees being denied the right to pursue a substantive right under a collective agreement, there has to be clear and explicit language. The language specifying time limits in the first Interim MOS does not meet that standard.

18This is not a case where the Board has to go behind and modify terms of an agreement between the parties on equitable and fairness grounds. The evidence is that, despite the use of the word "shall", there was no clear understanding between the parties as to the strictness with which the time limit would be enforced. The union expected that it would not be so strictly applied as to prevent legitimate claims of employees being brought forward. The employer took a different view, and disagreed with the union's view. This disagreement led to further discussions and the misunderstanding was cleared up with a stipulation in the Second Interim MOS, that the union is not free to bring forward claims indefinitely, and a clear cut-off date was agreed to.

19While the above reasoning by itself leads me to dismiss the employer's position, I find that this case, not being one about a breach of a time limit stipulated in a collective agreement or statute, but one agreed to between the parties in the course of negotiating an information gathering process, it is also reasonable to consider equitable and fairness grounds. The equitable and fairness grounds raised by union counsel reproduced above also favour a finding that the time limit in question ought not be enforced to prevent employees pursuing claims that they have been denied pay entitlements under the collective agreement.

20For all of those reasons, the employer's motion that the claims of the ten employees in question is denied. The Board retains jurisdiction.