Award Number 16-005

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Award Date: 2016-07-15
Arbitrator: Anderson, Ian
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Municipality: Toronto
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Region: Central
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Classifications: Associations, Complaints, Arbitrability
Grievor: Henry Alessandroni
Appearances: N. Jones, A. Cumming and others, for the Association, for the Association
J. Pak, for the Complainant No one appearing for the Employer, for the Employer
Length of Award:8 pp
Collective Agreements Cit. Articles 3 and 21
Statutory Cit. Police Services Act Labour Relations Act, 1995, ss. 74 and 114


Associations   Duty of fair representation - Civilian members - Complainant alleged association failed to represent him adequately in discussions leading to settlement of his grievance - Complainant delayed in bringing complaint and attacked settlement only after taking full advantage of its terms - Complaint dismissed.

Complaints   Duty of fair representation - Civilian members - Complainant alleged association breached its duty of fair representation in settling his grievance - Complainant waited at least 16 months after being advised association would not proceed with grievance - Delay significant - Association prejudiced by delay - Association’s decision not to proceed to arbitration was not arbitrary - Complaint dismissed.

Arbitrability   Timeliness - Civilian members - Complainant alleged association breached its duty of fair representation - Complainant delayed at least 16 months in bringing complaint - Delay significant and prejudicial to association - Complaint filed only after complainant took full advantage of settlement negotiated by association on his behalf - Complaint dismissed.


Mr. Alessandroni, a civilian employee with 26 years of service, filed a complaint alleging that the association breached its duty of fair representation. The complainant alleged that the association did not represent him adequately in discussions with the board leading to the settlement of his grievance. He further alleged that he did not understand that the settlement precluded his grievance from going to arbitration. During his employment the complainant progressed through a variety of job and wage classes. He obtained a Class 10 position in 2005 as an “eCops Planning Analyst” in Records Management Services. In 2010, following certain interactions with his supervisors, the complainant filed two complaints with the Ontario Human Rights Tribunal. The first application alleged discrimination on various grounds. The second alleged reprisals for filing the first application. Both applications were dismissed by the Tribunal on the basis of delay and on the basis that there was no reasonable prospect of success. The complainant was displaced from his job when the board introduced a new data management system, IRIS, which replaced eCops. Pursuant to s. 21.01 of the collective agreement, the board advised the complainant that he could move to a Class 7 position, Emergency Planner, and his salary would be red-circled for 6 months. The complainant was asked to sign and return the letter, which he did, while noting that he would be taking the matter up with the association. On June 5, 2014 the association filed a grievance on behalf of the complainant, alleging he had been improperly reclassified and demoted, contrary to the management rights clause, Article 3. The grievance further alleged that the board’s actions constituted a reprisal for filing the human rights complaints. The complainant was present for part of the step 2 meeting held on July 21, 2014. After the meeting the association met privately with the board, in accordance with its usual practice. The association then reported back to the complainant about the substance of its discussions with the board. The association presented the complainant with a settlement proposal which expanded the period of red-circling from 6 months to 17 months. The significance of this, apart from the financial benefit, was that the complainant would have a 6-month period in which to apply for other jobs with a clear disciplinary record, since the discipline on his record [a two day suspension] would expire in accordance with the sunset clause under the collective agreement. On August 29, 2014 the association withdrew the grievance. The complainant received a copy of the association’s letter to the board. A new letter of settlement was drafted, which the complainant signed on September 24, 2014, without adding any qualifying text. The complainant was paid the Class 10 rate for a period of 17 months, until November 30, 2015. In August 2015 he contacted the association, expressing concern about his lack of success in applying for positions. However, he did not ask about taking his grievance to arbitration. On January 14, 2016 the complainant advised the association that he was alleging the association breached its duty of fair representation by failing to pursue arbitration of his grievance. Approximately one month later he filed the subject complaint.


Addressing the issue of delay, the complainant stated that it was only after 17 months that he realized he had the option of filing a complaint against the association. As to the impact of the settlement, the complainant asserted that it caused him a great deal of financial and emotional stress. He alleged that the association acted arbitrarily in representing him and he insisted that he did not realize the settlement of his grievance would preclude arbitration. The association countered that it represented the complainant fairly and adequately, obtaining a real and substantial benefit for a meritless grievance.

Award #

Although the Police Services Act did not contain an express duty of fair representation, it was settled law that police associations owed their members such a duty and that an arbitrator appointed under the PSA had jurisdiction to determine a duty of fair representation complaint. There was precedent for the proposition that grievance arbitrators under the PSA had discretion to dismiss grievances on the basis of delay. Furthermore, the Ontario Labour Relations Board – the forum with jurisdiction over duty of fair representation complaints outside the police sector – dismissed applications on the basis of delay. The complainant was aware by at least August 29, 2014 – and perhaps earlier – that the association would not be proceeding to arbitration, yet he did not notify the association of his intention to complain until January 14, 2016, and the complaint was not filed until one month later. The period between notification that the grievance would be withdrawn and notification that a DFR complaint would be filed was at least 16 months. By any labour relations standard, this was a very significant delay. Moreover, the association was prejudiced by the delay, since a key association representative who was involved in this matter had retired, his notes were destroyed, and his recollection of events was diminished. Although the complainant was under a great deal of financial and psychological stress, there was nothing to suggest the stress would have precluded filing a timely complaint. The association did not proceed to arbitration because of the settlement. That decision was not arbitrary. While the complainant now sought to attack the settlement, he delayed in bringing his complaint and filed it only after he took full advantage of its terms. Under the circumstances, it was inequitable to allow him to proceed with his complaint.

Authorities Cited

• Renaud v. Town of Lasalle Police Assn. (2006), 216 OAC 1 (CA); 151 L.A.C. (4th) 154 • Cumming v. Peterborough Police Assn., 2013 ONCA 670 • Lafrance and North Bay Police Assn., (2009), 187 L.A.C. (4th) 381 (Starkman); OPAC #09-001 • Switzer v. CAW Canada, [1997] OLRB No. 2605 • Sault Ste. Marie Police Services Board and Sault Ste. Marie Police Assn., unreported, March 21, 2006 (Starkman); OPAC # 06-003

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