GSB# 2020-2052

UNION# 2020-0527-0009

IN THE MATTER OF AN ARBITRATION

Under

THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT

Before

THE GRIEVANCE SETTLEMENT BOARD

BETWEEN

Ontario Public Service Employees Union (Liu)

Union

• and -

The Crown in Right of Ontario (Ministry of Labour, Training and Skills Development)

Employer

BEFORE

Dale Hewat

Arbitrator

FOR THE UNION

Seung Chi Ontario Public Service Employees Union Grievance Officer

FOR THE EMPLOYER

Andrew Lynes Treasury Board Secretariat Legal Services Branch Counsel

HEARING DATE

May 4, 2022

Decision

1The Grievor filed a grievance dated September 10, 2020 in which she alleged that the Employer violated Article 2, and other provisions of the Collective Agreement, due to a discrepancy in the calculation of her Continue Service Date “CSD”. The Grievor seeks to have her CSD changed to reflect November 10, 2011 and to be made whole in terms of any entitlements and pension contributions.

2The Grievor began working as a Client Service Coordinator with the Ministry of Citizenship and Immigration on November 10, 2011. In April 2012, the Grievor was successful in a competition for the position of seasonal Immigration Supporting Officer. In February 2014, the Grievor became a seasonal full-time Investigator Analyst, following which she held a six- month fixed term contract from November 30, 2015 to May 27, 2016.

3In December 2015, the Employer posted permanent full-time Investigator Analyst positions. The Grievor applied for this posting but was advised that she was not successful in the competition, and as a result, her fixed-term contract ended on May 27, 2016.

4On June 10, 2016, the Grievor filed a grievance challenging the competition results of the permanent, full-time Investigator Analyst position. The Grievor noted that during the grievance process the Employer did not waive the Formal Resolution Process under Article 22 of the Collective Agreement and believed that the Employer caused delay in discussions about possible employment opportunities for her. The Grievor also stated that in the summer of 2016, she was also given access to apply to restricted job postings.

5The June 10, 2016 grievance was settled by the Parties on September 15, 2016 in which the Grievor was offered a 6-month fixed term contract for the Investigator Analyst position, Executive Officer 1. The Grievor accepted the offer and started working in this position on October 3, 2016.

6Between October 3, 2016 and September 10, 2020, the Grievor held various positions and became a permanent Case Processing Assistant on December 14, 2020. In August 2020, the Grievor questioned why she did not receive an extra week of vacation credits in an email to Human Resources. The Grievor was advised by Human Resources that her CSD was in fact October 3, 2016 because the Grievor had a break in service of more than 13 weeks in 2016.

7The Union argued that, following the filing of the June 10, 2016 grievance, had the Employer followed the time-lines and waived the Formal Resolution Process, there would not have been a delay in dealing with that grievance and the parties may have reached an agreement before the passage of 13 weeks break in service in 2016. The Union suggested that the Employer had conducted itself in bad-faith by not offering the Grievor a position until after 13 weeks had passed. The Union also stated that, by giving the Grievor access to restricted postings, the Grievor was made to believe that an employment relationship existed even after the termination of her fixed-term contract on May 27, 2016.

8The Employer maintained that the Grievor’s CSD is October 3, 2016 which was the date she started her new position in accordance with the Minutes of Settlement. The break in service between May 27, 2016 and October 3, 2016 was 18 weeks. Alternatively, the Employer stated that the break in service even from the date of the Minutes of Settlement, September 15, 2016, was 15 weeks. From the Employer’s perspective, either of these dates reset the clock of the Grievor’s CSD within the terms of Article 18.1.1 of the Collective Agreement which provides in part that:

An employee’s length of continuous service will accumulate upon completion of a probationary period of not more than nine (9) months and shall commence:

(a) from the date of appointment to the Regular Service for those employees with no prior service in the Ontario Public Service; or

(b) from the date established by adding the actual number of full-time weeks worked by a full-time fixed-term employee during his or her full-time employment back to the first break in employment which is greater than thirteen (13) weeks;

9The Employer also argued that the September 15, 2016 Minutes of Settlement confirms a break in service in excess of 13 weeks because the Grievor accepted a new position starting on October 3, 2016 following the termination of her fixed-term contract on May 27, 2016. The Employer also stated that the terms of the settlement are final and as a result, I cannot now review what may or may not have occurred leading up to the settlement or consider any bad faith arguments proposed by the Union.

10This Grievance came before me under s.22.16 of the Collective Agreement. Article 22.16 provides for the resolution of grievances “in an expeditious and informal manner. Decisions reached are of no precedential value unless the parties agree otherwise. The mediator/arbitrator is to endeavour to assist the parties in settling this matter. Should efforts be unsuccessful, the mediator/arbitrator is to determine the grievance by arbitration. In doing so, Article 22.16 empowers the mediator/arbitrator to “limit the nature and extent of the evidence and may impose such condition as he or she considers appropriate”.

11Having taken into account both parties’ arguments and the provisions of Article 18.1.1, I advised the parties, at the end of our hearing, that I would be dismissing the grievance. The language of Article 18.1.1 is clear that CSD is calculated back to a break in employment that is greater than 13 weeks, which exists in the instant case. The September 15, 2016 Minutes of Settlement also confirm that the Grievor accepted a new fixed-term position starting October 3, 2016 and it is not appropriate for me to now consider arguments about what may have occurred back in the summer of 2016, including access to restricted postings, when the matter was finalized pursuant to a settlement that included full and final release signed by the Grievor. In this regard, I apply the principles set out in Patterson OPSEU vs MCYS, 2006 CanII 42771(ON GSB), at page 10, upholding the finality of settlements and the expectation that once a matter is resolved, the expectation is that it will not reappear in some different forum or case.

12Accordingly, this grievance is dismissed.