GSB#2016-1301; 2016-1568

UNION#2016-0108-0016; 2016-0999-0059

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

November 1, 2021

Decision

1The union filed a group grievance dated August 20, 2016 and a union grievance dated September 19, 2016, alleging that the employer had failed to properly progress fixed term employees employed in corrections through the salary grid as required by article 31A.2.3. When the Board first convened to deal with the grievances on June 28, 2018, it became clear that the parties disagreed on the proper interpretation of the article. The parties agreed that the Board should first determine the interpretation issue, with the employer reserving the right to raise an estoppel motion in the event the Board upholds the union’s interpretation.

2Subsequently mediation attempts were not successful. The Board dealt with several preliminary and case management issues, and issued decisions. The hearing on the interpretation issue commenced on September 27, 2019. For present purposes it suffices to note that by decision dated August 11, 2020, the Board ruled in favour of the union’s interpretation of article 31A.2.3.

3On March 15, 2021, the Board heard the employer’s estoppel argument, a decision was issued on April 9, 2021 upholding the employer’s position, and the Board retaining jurisdiction “to deal with any and all outstanding issues”.

4On July 8, 2021, the union filed particulars and sought a further hearing, asserting that the employer had not applied article 31A.2.3 properly to fixed term employees after the freeze on salary progression ended on December 31, 2017. The employer objected to the Board’s jurisdiction to determine that assertion on the grounds that it was an undue expansion of the grievances that were filed by the union.

5The union’s particulars are as follows:

1. On September 19, 2016 the Union filed policy grievance # 2016-0999-0059 and associated group and individual grievances (in or around September and October 2016) alleging that the Employer breached Articles 2, 31A2.2; 31A2.3 when it failed to implement salary progression upon completion of a minimum of one thousand, seven hundred and twenty-five and a half (1,725.50) straight time hours or one thousand, nine hundred and four (1,904) straight time hours on the date it is earned before the January 1, 2016 wage salary schedule freeze. These grievances were referred to the GSB and heard by Arbitrator Dissanayake who issued a series of decisions. The decision issued August 11, 2020 determined that merit increases are to be granted upon completion of the minimum hours (“Dissanayake – Merit”) and a further decision issued April 23, 2021 found that the Union was estopped from enforcing the strict terms of the Collective Agreement for the duration of the present Collective agreement and thus, the Employer’s practice of granting merit increases on the first day of the month following the completion of the minimum hours (“Dissanayake-Estoppel”).

2. Subsequently, on August 24, 2017 the Union filed policy grievance #2017-0999-0041 and on February 12, 2018 the Union filed policy grievance # 2018-0999-0006 and these grievances regarding how salary progression resumes after the end of the salary schedule freeze. These grievances were referred to the GSB and heard by Arbitrator Petryshen (“Petryshen”). The Parties reached an Agreed Statement of Facts (ASF) that did not include the peculiarities of the FXT employees who’s salary progression is governed by Article 32, namely that each time they complete the required minimum hours they obtain a new anniversary date nor did any of the scenarios placed before Arbitrator Petryshen address post freeze salary progression for FXT employees.

3. Arbitrator Petryshen determined that salary progression would resume following the end of the freeze from the employee’s current step on the salary grid. Thus an employee hired in March 2016 would get a merit increase in March 2018. This was the case even though a more senior employee hired in December 2015 would not obtain a salary increase until December 2018.

4. When the Union referred the Petryshen grievances to the GSB the issue of how FXT employees were to move through the wage grid as a result of the freeze was already before Arbitrator Dissanayake and thus he is properly seized with any remedial issues flowing from the impact of the salary freeze.

5. A remedial issue that came to light following the issuance of the Dissanayake-Estoppel decision was that the Schedule B employees (attached) did not properly resume progression through the salary grid following the end of the salary freeze. For example (examples omitted).

6. With respect to FXT employees who’s salary progression is governed by Article 31A, the Employer did not properly resume salary progression as rather than treating the period of January 1, 2016 – December 31, 2017 as a freeze, it has evaporated all hours worked in advance of the freeze and required FXT employees to work an additional 1904 / 1725.50 hours outside of the freeze period in order to obtain their salary increases.

7. As this is a matter that flows directly from Arbitrator Dissanayake’s decision, the Union submits that he has jurisdiction to determine the appropriate process for how FXT employees are to progress through the wage grid following the end of the salary freeze.

6Union counsel submitted that the Petryshen decision was only about non-fixed term employees. Employer counsel disagreed. Assuming in any event that the union’s submission in this regard is correct, at para. 2 of its present particulars it states that the grievances before arbitrator Petryshen were “regarding how salary progression resumes after the end of the salary schedule freeze”. Consistent with that, in his decision (GSB File 2017-2895) arbitrator Petryshen at para:1 wrote that the grievances “essentially raise the question of how salary progression should resume under the relevant collective agreement after the ending of a salary progression freeze”. In that proceeding there was no dispute that the grievances were about how salary progression should resume when the freeze ended with the expiration of the 2015-2017 collective agreements on December 31, 2017. In other words, those grievances were about the period commencing January 1, 2018.

7The parties cited numerous authorities on expansion of grievances. An often-cited authority is Blouin Drywall Contractors Lt. v. U.B.C. J.A.L. 2486, (1975), 1975 CanLII 707 (ON CA), 57 D.L.R. (3d) 199 (Ct of Appeal, Ont.). At p. 204 the court wrote: “No doubt it is the practice that grievances be submitted in writing and that the dispute be clearly stated, but these cases should not be won or lost on the technicality of form, rather on the merits and as provided in the contract and so the dispute may be finally and fairly resolved with simplicity and dispatch". The Court went on to state, “Certainly, the board is bound by the grievance before it but the grievance should be liberally construed so that the real complaint is dealt with and the appropriate remedy provided to give effect to the agreement provisions...".

8In Greater Sudbury Hydro Plus Inc. and CUPE L. 4705 (2003) 121 L.A.C. (4th) 193 (Dissanayake), the arbitrator reviewed a number of authorities and wrote as follows at para. 14 on the Court decision on Blouin Drywall:

I find two countervailing principles in the foregoing statement by the Court of Appeal. The first is that, where on a liberal reading of the grievance an issue, although not articulated well, is inherent within it, an arbitrator ought to take jurisdiction over that issue, despite any flaws in form or articulation. However, there is also a countervailing principle to the effect that an arbitrator ought not, in the guise of "liberal reading", permit a party to raise at arbitration an issue which was not in any manner, even inherently, joined in the grievance filed. To do that would be to defeat the very purpose of the grievance and arbitration procedure.

9In Re Liquid Carbonic Inc (1992), 1992 CanLII 14618 (ON LA), 25 L.A.C. (4th) 144 (Stanley) at p. 147, the arbitrator wrote:

The whole process of grievance arbitration, and grievance procedure, is designed to permit the parties at the earlier stages to resolve the dispute between themselves. Hence, collective agreements invariably contain grievance procedure provisions so that grievances are funneled to an arbitration board only after the parties have had a chance to resolve the matter. It is our view that the comments of Professor Laskin and the decision in the Re Blouin Drywall case attempt to accommodate both values. If the issue raised at the arbitration hearing is in fact part of the original grievance, a board of arbitration should not deny itself jurisdiction based on a technical objection as to the scope of the original grievance. To do so would deny the value of flexibility and would be to compel the parties to draft their grievances with a nicety of pleadings. On the other hand, if the issue raised by one of the parties is not inherent in the original grievance, for the board to permit the party to raise that issue as part of their original grievance would be to deny the parties the benefit of the grievance procedure in an attempt to resolve the issue between themselves. In fact, it would be to permit one party to substitute a new grievance for the original grievance.

10In the instant case, union counsel repeatedly asserted that the treatment of fixed term employees when the freeze ended is a remedial issue that flows from the Board decisions the union was entitled to seek. An analogous argument was made in Re Sudbury Hydro Plus Inc. (supra). At para 16-17, the Board wrote:

16. The union focuses on the remedy and submits that throughout, the union's concern has been the personal redress of the grievor for the loss of her collection officer position as a result of the contract out. The union's focus was always on the proper treatment of the grievor following the contract out. At arbitration the union is not attempting to "undo" the contract out. It is simply attempting to ensure that the grievor is treated in accordance with the collective agreement following the contract out. He points out that the article governing the grievance procedure (art: 6), while requiring that a grievance be in written form, has no requirement that a grievance explicitly set out the article alleged to have been violated. Nor does it require that the exact remedy sought be set out.

17. I have concluded that the employer's objection must be upheld. The problem here is not the union's failure to specify an article number or an exact remedy. It is about its failure to raise the alleged violation until the arbitration stage. In the grievance the union clearly complained that the grievor had been denied her bumping rights under the collective agreement. There was no mention of a "demotion". The union submits that by complaining about the denial of bumping rights, it put the employer on notice that the union was objecting in a general way to the way the grievor was treated following the contract out. That, in my view, is not what the courts meant by "liberal reading" of a grievance. To include an issue through a "liberal reading" I must be able to conclude that the employer reasonably should have understood upon reading the grievance that the issue in question was part of the grievance. I am unable to reach that conclusion in this case. The grievance was very specific about the right violated. It was about bumping rights. It was open to the union to clarify or amend the grievance during the grievance procedure to include additional claims. There is no suggestion that this was done.

11In all of the authorities relied upon by the parties, the alleged "expansion" occurred during the grievance procedure or in filing particulars prior to the commencement of the hearing. In situations where the alleged expansion is sought early in the process, the arbitrator may have to engage in a balancing of the two countervailing principles in Re Blouin Drywall. This is not such a case. Here the grievance forms do not make any reference to the issue of salary progression post freeze. It was not part of the grievances even inherently. For the very first time the issue of how salary progression should work post-freeze was raised after the hearing had been completed and even after the Board had issued its decision. The post-freeze issue was not raised or even mentioned during mediation, when dealing with a number of preliminary and process issues, in the union’s opening statement or in its closing submissions.

12In the instant case, it is not possible to consider the union’s present claim to be a remedial claim that follows or arises from the Board decision. The union never raised that issue, and the employer could not have reasonably understood that the administration of salary progression when the freeze ended formed any part of the grievances any time before the union filed additional particulars after the Board decisions were issued.

13The union also pointed out that the financial liability of the employer if the Board takes jurisdiction over its present claim would be very modest. It was also argued that it was a matter of fairness to the affected employees. However, those are not factors that would give the Board jurisdiction over claims that were not grieved. Having failed to include that claim in these grievances, the union could have filed another grievance in accordance with the requirements in the collective agreement, alleging that the employer failed to properly apply salary progression on fixed term employees when the freeze ended, as the union had done on behalf of non-fixed term employees. It was not open to it to tack on a new claim to these grievances in the guise of a remedy flowing from the Board decisions.

14In the result, the union’s particulars dated July 8, 2021 are struck. The Board lacks jurisdiction to deal with the claims made therein.

15The Board continues to retain jurisdiction over any outstanding issues properly arising out of the grievances and its decisions issued in respect of those grievances.