GSB# 2016-1987

UNION# 2016-0551-0018

IN THE MATTER OF AN ARBITRATION

Under

THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT

Before

THE GRIEVANCE SETTLEMENT BOARD

BETWEEN

Ontario Public Service Employees Union (Pereira)

Union

• and -

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

Employer

BEFORE

Ian Anderson

Arbitrator

FOR THE UNION

Jane Letton Ryder Wright Blair & Holmes LLP Counsel

FOR THE EMPLOYER

Joohyung Lee Treasury Board Secretariat Legal Services Branch Counsel

TELECONFERENCE SUBMISSIONS

July 16, 2019 Written submissions completed February 10, 2020

Decision

1The Grievor, through the Union, requests “reconsideration” of the decision in this matter dated November 22, 2017 which dismissed the grievance (the “original decision”). The parties agreed to proceed by way of written submissions.

2Having considered the submissions of the parties, I adopt the following submissions of the Employer:

1. The Grievance Settlement Board does not have the jurisdiction to reconsider the Decision. The absence of jurisdiction to reconsider a decision was expressly recognized by the GSB in OPSEU (Ross) and Ontario (Ministry of Municipal Affairs and Housing), GSB No. 1981-0407 (June 1, 2010) (Gray) at paras 37 and 42:

[37]

The Board has no jurisdiction to reconsider and change a finding or decision it has already made on the merits of an issue in dispute. [...]

[42]

Whether reconsideration of a decision is sought on the basis of new evidence or an argument that the Board misapprehended the evidence before it or some challenge to the hearing process by which the Board arrived at the decision, the result is the same: having made a decision that professes to determine some issue before it on the merits, the Board cannot later reconsider that determination unless all parties to the proceeding agree or a court so directs on judicial review.

2. Further, contrary to the assertion in the Union's written submissions, the Decision was arrived on the basis of accurate information. The Employer submits the following in response to the alleged inaccuracies as set out in subparagraphs 5a. to 5d. of the Union's written submissions:

   1. Subparagraph 5a. - The description at paragraph 1 of the Decision that the Grievor "elected to continue his employment at Syl Apps" is not inconsistent with the Grievor's assertion that he was one of the 150 candidates hired by Syl Apps. Accepting the Grievor's assertion as true for the purpose of these submissions, the Grievor would have "elected" to continue employment with Syl Apps in the sense that he accepted an offer of employment from Syl Apps.

   2. Subparagraph 5b. - Paragraph 4 of the Decision simply outlines the Employer's position in regards to the Grievor's pension service date and the basis upon which the Employer arrived at that conclusion. The Arbitrator did not make any conclusions regarding the Grievor's pension start date as the grievance was dismissed on the basis of timeliness. The Grievor's asserted view of the merits of his grievance is not a basis to reconsider the decision to dismiss his grievance on the basis of timeliness.

   3. Subparagraph 5c. - Paragraph 5 of the Decision is an accurate recitation of the content of the Grievor's October 8, 2016 grievance form. The grievance form, under "Settlement Desired", references a pension commencement date of "September 1985". Further, Paragraph 5 of the Decision is also consistent with paragraph 17 of the Agreed Statement of Facts.

   4. Subparagraph 5d. - As part of the expedited 22.16 mediation/arbitration procedure, the Arbitrator heard oral representations of the parties in addition to the Agreed Statement of Facts. The cost implications of the adjusting the Grievor's pension service date as requested was discussed on November 21, 2017, and the approximation of "excess of $80,000" is consistent with the OPTrust documentation that was provided by the Union in the course of the grievance process.

3. Finally, the alleged deficiencies as set out in paragraph 5 of the Union's written submissions, even if accepted, would not alter the ultimate conclusion that the grievance was not filed in a timely manner and thus are an insufficient basis for the request for reconsideration.

3With respect to the Union’s Reply submissions, I note the following. I accept the subject matter of the grievance, namely the Grievor’s pension credits, is an issue of importance. I do not agree the reasoning of the original decision was not “sound” nor that it was based on information which was not “accurate”. The fact the Grievor participated in a job competition in order to “continue” his employment at Syl Apps is immaterial: there is no suggestion as to how this could in any way affect the original decision. For the reasons stated above, there are no material errors in fact or reasoning in the original decision.

4Accordingly, the request for reconsideration is denied.