GSB# 1000/94; 2018-0648

OPSEU# 94E166; 2018-0234-0078

IN THE MATTER OF AN ARBITRATION

Under

THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT

Before

THE GRIEVANCE SETTLEMENT BOARD

BETWEEN

Ontario Public Service Employees Union (Bartlett)

Union

• and -

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

Employer

BEFORE

Ian Anderson

Arbitrator

FOR THE UNION

Esther Song Ryder Wright Blair & Holmes LLP Counsel

FOR THE EMPLOYER

Joohyung Lee Treasury Board Secretariat Legal Services Branch Counsel

HEARING DATE

June 8, 2020 (via videoconference)

DECISION

1There are two matters before me. The first relates to a settlement reached between the parties on April 10, 1996 of a grievance dated June 30, 1994. On the agreement of the parties, the terms of that settlement were made an order of the Board on April 29, 1996 (Board File No. 1000/94). The Union alleges the Employer has breached the terms of that settlement and Board order. The second relates to a grievance dated April 2, 2018 (Board File No. 2018-0648) alleging the Employer has breached the terms of the collective agreement. Both matters derive from the same set of facts. The parties agree that I have jurisdiction to determine both.

2The Grievor was first employed in 1985. In 1994 her employment was terminated. She grieved. While terminated, she elected to cash out her pension contributions for 1985 to 1994 and received approximately $23,000. In 1996, she was reinstated to employment pursuant to the settlement. The settlement provided the Employer would “make the grievor whole for the period of her discharge”. The Union asserts: “It was clearly the parties’ intent that making the grievor whole included restoring her pension credit/service date to 1985.” The Grievor alleges she assumed the Employer had done so and only learned that it had not in 2018 when she started considering retirement. The Grievor seeks to have the Employer pay her the cost of buying back her pension credits/service for the period 1985 to 1994 as calculated by the OPSEU Pension Trust. That amount is approximately $280,000.

3The Union provided the Employer with a statement of particulars. The Employer seeks to have both matters dismissed on the basis that those particulars fail to make out a prima facie case or in the alternative on the basis of timeliness.

No Prima Facie Case

4The test to be applied in determining whether or not a party has particularized a prima facie case is summarized in Ontario Public Service Employees Union (Martin et al) v Ontario (Community and Social Services), 2015 CanLII 60449 (ON GSB) (Anderson):

6The question is whether the asserted facts, taken as a whole, constitute particulars capable of supporting the violation of the collective agreement alleged. As the Union argues, the words “capable of supporting the violation” are of some significance. What matters for the purposes of the no prima facie case motion is whether the party responding to the motion, in this case the Union, has articulated a legal theory which, on the facts it has particularized, could reasonably support a conclusion that there is a violation of the collective agreement. Therefore, the particulars are to be assessed against the responding party’s theory of the case. Whether that theory is correct need not be determined at this stage in the proceedings. Provided the responding party’s theory is reasonable and it has provided particulars which, if true, would result in a finding of a breach on the application of that theory, the motion should be dismissed.

5I turn first to consider the grievance dated April 2, 2018, which alleges the Employer’s failure to reinstate the Grievor’s pension contributions for the period August 6, 1985 to June 24, 1994 constitutes a violation of the collective agreement. I note that Appendix 20 of the collective agreement consists of a letter of understanding which states:

It is understood that, while pension issues are bargainable, the Sponsorship Agreement, the Pension Plan, the Trust Agreement, and any other ancillary documents concerning the Pension Plan do not form part of the Collective Agreement.

6While the grievance refers to several Appendices of the collective agreement which in turn make reference to the Pension Plan, the Union has articulated no legal theory as to how the facts it has particularized could give rise to a breach of those Appendices, or of any other provision of the collective agreement. They have no apparent application to the facts alleged before me. Accordingly, the grievance which is the subject of Board File No. 2018-0648 is dismissed.

7The focus of the Union’s argument is that the Employer’s failure to pay the cost of the Grievor’s pension contributions constitutes a breach of the terms of the 1996 Minutes of Settlement and the Board order incorporating those terms. The settlement provides as follows:

The parties agree to a full and final settlement of the above noted grievance without precedent and without prejudice to any future and/or similar matter on the following terms:

1. Management agrees to revise Mr. McConnel’s letter of June 29/94 to indicate that the grievor used poor professional judgement in that she failed to report to management that she received personal correspondence from an inmate.

2. Management agrees to permanently reinstate the grievor to the position of Correctional Officer at the Waterloo Detention Centre effective June 29/94 and to the full duties of Correctional Officer immediately.

3. Management agrees to substitute the grievor’s discharge with a two (2) week (80 hour) suspension without pay.

4. Management agrees to make the grievor whole for the period of her discharge including the payment of interest based on the Hollawell [sic: Hallowell] formula.

5. The grievor and the Union agree to withdraw the noted grievance.

6. This settlement shall become an order of the Board.

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