GSB#2017-3508

UNION# 2017-0212-0005

IN THE MATTER OF AN ARBITRATION

Under

THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT

Before

THE GRIEVANCE SETTLEMENT BOARD

BETWEEN

Ontario Public Service Employees Union (Varcoe)

Union

• and -

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

Employer

BEFORE

Nimal Dissanayake

Arbitrator

FOR THE UNION

Lauren Tarasuk / Amani Rauff Koskie Minsky LLP Counsel / Student-at-Law

FOR THE EMPLOYER

Chris Tikkanen Treasury Board Secretariat Employee Relations Advisor

HEARING

May 16, 2019

Decision

1A grievance dated December 15, 2017, filed by Ms. Laura Varcoe came before the Board for mediation-arbitration pursuant to article 22.16 of the Collective Agreement. I was advised that there was no prospect of a mediated settlement. The parties requested that I hear and determine a motion by the employer that the grievance is inarbitrable. This decision deals solely with that motion.

2The grievor had been away from work for an extended period. In August 2016 she qualified for CPP disability benefits and in October 2017 was approved by the OPSEU Pension Trust for retiree pension benefits, having retired from the OPS at that time. She discovered shortly after, that had she retired earlier before changes were made to the OPT pension plan, she would have received full benefits at no extra cost. She states that had she known of the impending changes to the pension plan she would have retired earlier. Now it costs her approximately $ 170 a month extra to receive full benefits.

3The grievance in essence claims that the employer had a duty to inform her of the option she had to retire early and qualify for full benefits at no extra costs, and it failed to comply with that duty.

4The employer submits that the pension plan nor its administration forms any part of the collective agreement, and therefore the Board lacks jurisdiction to hear the grievance. Counsel relied on Re Ball 2444/94 (Dissanayake) and Re Ashley et al 2001-1700 (Abramsky).

5Union counsel argued that the employer had violated article 2 (Management Rights) and article 3 (no discrimination) in the particular circumstances of this case. Counsel agreed that the decisions relied on by the employer have held that in the absence of any reference to the pension plan in the collective agreement, there is no general duty on the employer to act fairly and reasonably. However, she submitted that the grievor here was disabled. Had she been at work she would have become aware of her pension options. However, when the employer was aware that she was not at work, its failure to communicate the options to the grievor constituted discrimination on the basis of disability contrary to article 3. On that basis she submitted that in this case there was a hook to a substantive right under the collective agreement, and this case is therefore distinguishable from Re Ball and Re Ashley. In addition she relied on Re Glacier Ventures International Corp [2012] B.C.W.L.D. 5067 (Burke) and urged the Board to follow its approach.

6For the purposes of this motion only, I have accepted all factual assertions by the union. Having carefully considered the submissions, I do not find that this case is distinguishable from the two pervious decisions of this Board. The union conceded that the collective agreement between these parties has no reference to pensions. The Board has held that pensions are governed by a specific statute and regulations there under. The mere fact that the grievor was disabled does not impose a duty on the employer to communicate to the grievor on matters not in any way covered by the collective agreement.

7Therefore, like in Re Ball and Re Ashley, it cannot reasonably be concluded that the essential character of the instant grievance arises out of the collective agreement. This contrasts with Re Glacier Ventures International Corp. (supra) where the arbitrator concluded that there was an article in the collective agreement where pensions were dealt with, which sufficiently linked the grievance to the collective agreement.

8While the Board sympathizes with the grievor, the Board has no equitable remedial powers to address her situation. Its mandate and authority is only to hear and determine disputes arising out of the collective agreement, directly through its provisions or through legislation.

9Therefore, the employer’s motion is upheld. The grievance is hereby dismissed.