GSB# 2018-2477

UNION# 2018-0584-0005

IN THE MATTER OF AN ARBITRATION

Under

THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT

Before

THE GRIEVANCE SETTLEMENT BOARD

BETWEEN

Ontario Public Service Employees Union (Lake)

Union

• and -

The Crown in Right of Ontario (Ontario Clean Water Agency)

Employer

BEFORE

Diane Gee

Arbitrator

FOR THE UNION

Anjana Kashyap Ontario Public Service Employees Union Grievance Officer

FOR THE EMPLOYER

Julia Evans Treasury Board Secretariat Legal Services Branch Senior Counsel

SUBMISSIONS HEARING

May 18, June 11 and 25, 2021 Hearing conducted in writing

Decision

1This decision concerns an allegation that the Employer is in violation of Minutes of Settlement (MOS) signed on April 23, 2019. The grievor alleges that the MOS was violated in or around June 28 to July 8, 2019. The grievor retired in September 2020. The wages lost by the grievor as a result of the Employer’s conduct that is alleged to have been in violation of the MOS is $160.00. The grievor seeks $40,000.00 in damages for failure to abide by the terms of the MOS.

2The parties each made fulsome written submissions inclusive of documents and case law.

3The grievance that led to the MOS, filed on August 30, 2018, arose when the grievor upgraded his Distribution and Supply Certificate to Level 3 which, pursuant to the terms of Regulation 128/04 under the Safe Drinking Water Act, qualified him to replace a Class IV Overall Responsibility Operator (ORO) within the subsystem when such ORO was unavailable. According to the Union’s submissions, the grievance was filed when the grievor requested that management assign him acting ORO and received no response.

4The alleged violation hinges on the interpretation of paragraph 3 of the MOS. It reads as follows:

3. The parties agree that the Grievor is eligible to be designated as the ORO for the subsystem in which he works, under subsection 23(1), (4) and (6), and may be contacted by the Employer when the designated Class IV [Overall Responsibility] Operator within the subsystem is unavailable.

5After the MOS was signed, the designated Class IV ORO in the subsystem in which the grievor worked was not available from June 28 to July 2, 2019, and the grievor was not contacted. The assignment was given to a Class IV ORO working outside of the subsystem. The Union asserts paragraph 3 of the MOS required the Employer to contact the grievor and offer him the acting assignment. The Employer argues that paragraph 3 is permissive, and it was not required to offer the assignment to the grievor. The Employer states that its established practice is to offer the assignment to Class IV OROs system-wide before contacting Class III OROs and it acted in accordance with such practice. In reply, the Union disputes the Employer had an established practice to offer the assignment to Class IV OROs before offering it to a Class III ORO and states that, at the time the MOS was entered into, there was a Class III ORO assigned for Lorne Park and no Class IV OROs had been contacted.

6In order to resolve the factual dispute between the parties it would be necessary to set this matter down for hearing. I expect the matter would take at least two days in order to complete the evidence and argument. In my view, however, the process for resolving disputes should be proportionate to the interests at stake. In this case, the grievor is now retired and, as such, my determination as to whether the MOS was violated will have no import or relevance to the grievor or the parties beyond the one assignment that took place June 28 to July 8, 2019. The wages lost as a result of the assignment that is alleged to have violated the MOS are not substantial; the grievor suffered a loss of $160.00 at most. The $40,000.00 damage award sought by the grievor is completely out of proportion to the allegation being advanced. Even if I were to find the facts to be as stated by the Union, I would not order the Employer to pay damages in excess of the grievor’s lost wages. There is simply no call for such an award in this case. Thus, there is no continuing interest at stake in this matter; it is a matter of lost wages amounting to $160.00. I do not believe that labour relations would be served by putting the parties, their advisors and witnesses to the expense of preparing for and attending a two-day hearing.

7Article 22.16 of the Collective Agreement indicates that the parties are interested in quality adjudication that allows each party an opportunity to state their case but also in a process that is timely, efficient and proportionate the interests at stake. Article 22.16.1 indicates that this matter is to be resolved “in an expeditious and informal manner” and article 22.16.2 provides that the arbitrator can limit the nature and extent of the evidence.

8Accordingly, I have determined that I will not direct that this matter be listed for hearing to resolve the factual dispute between the parties. Rather, I will make my determination, pursuant to Article 22.16, based on the submissions before me.

9Having regard to the content of all of the submissions, I find that the grievance arose when the grievor, as a Class III ORO, wanted to be recognized as qualified to replace the designated Class IV ORO in his own subsystem. The MOS recognizes in paragraph 1 that the grievor is so qualified. In paragraph 2 the MOS provides that the Employer will comply with the Safe Drinking Water Act when making assignments. The Safe Drinking Water Act permits a Class III ORO to fill in for a Class IV ORO. In paragraph 3, where it says, “the Parties agree that the Grievor is eligible to be designated as the ORO for the subsystem in which he works” I take this to mean that the parties agree that, as a Class III ORO, the grievor can legally fill in for a Class IV ORO. The paragraph concludes with the agreement that the grievor “may be contacted by the Employer when the designated Class IV Operator within the subsystem is unavailable.” The word “may” is not always permissive. It can be mandatory depending upon the context.

10The Union does not assert that the Grievor should have been the first person offered the position. The Union takes no issue with the fact that the Employer first offered the position to two Class IV OROs within the subsystem. The Union’s argument is that the violation did not occur until it was offered to someone who was a Class IV ORO in another subsystem. Thus, even according to the Union’s own interpretation of the MOS, the Employer was not “required” to contact the Grievor. The Union would have the words “where no Class IV ORO within the subsystem accepts the assignment” inserted before “the grievor may be contacted.” I am not persuaded that words that do not exist should be read into the MOS, or that words, such as “may,” that have a commonly understood meaning, should be interpreted otherwise unless the context strongly suggests such is appropriate. I do not see such a context in this case. Accordingly, I find that the word “may” should be interpreted as giving the Employer the right, but not the obligation, to contact the grievor.

11For the reasons set out above, I find there to have been no violation of the MOS. The matter is dismissed.