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Home My WebLink About1986-1202.Kreider.90-12-10EMPLOY~S DE‘A CO”RONNE CROWNEMP‘O”EES DEL’ONDIRIO GRIEVANCE CQMMISSION DE ;ky;fMENT REGLEMENT DES GRIEFS BETWEEN IN TEE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD OPSEU (Kreider) - and - The Crown in Right of Ontario (Ministry of Community & Social Services) BEFORE: FOR THE GRIEVOR FOR THE EMPLOYER HEARING: Grievor Employer A. Barrett Vice-Chairperson E. Seymour Member D. Walkinshaw Member D. Eady Counsel Gowling, Strathy & Henderson Barristers h Solicitors M. Gottesman Counsel Human Resources Branch Ministry of CommUnity & Social Services November 5, 1990 -l-, This is a decision on three preliminary objections made by the employer to our jurisdiction to hear this grievance. The grievance is dated October 17, 1986, and alleges: "Contrary to the agreement, I have been demoted to a position of less responsibility and less status, and with a unilateral change in working conditions which are more onerous than previously." The settlement desired is: "To be reinstated into former position with any recompense to which I may be entitled." About a month before the grievor filed this grievance, he and two other Residential Life Counsellors filed a classification grievance, on September 4, 1986. That grievance alleged that a group of three Residential Counsellor 2's who had been assigned to a special Behaviourial Modification Team were consistently assuming the responsibilities and performing duties that took them out of the RC-2 classification into some higher classification. The parties agreed that the classification grievances should proceed before this demotion grievance of Mr. IQ-eider, and that is why this grievance has taken so long to arrive at the hearing stage. The decision in the classification grievance was rendered by a different panel of this board on September 29, 1989. That panel of the board chaired by Mr. McCamus found that the r,. .~, / -2- Residential Counsellor 2's who were working on the special Behaviour Modification Team should be,reclassified at some higher level by the parties following OPSEU and Carol Berrv et al. vs. The - Crown in Riaht of Ontario (Ministrv of Communitv and Social Services (607/85). In that decision the board reviewed the history of the Behaviour Modification Team and found that the name of the program was changed in October 1985 to North Park Training Program, but the substance of the job remained the same for the RC-2's. although certain administrative and reporting changes were made. Another change was made to the program in October 1986 when it became a 24-hour a day program instead of the 8-hour a day program it had been previously. Apparently the program was originally designed to be a 24-hour a day program, but funding difficulties kept it to 8 hours per day until October 1986. For several years the RC-2's on the Behaviourial Modification Team had been working straight day shifts with no rotating shift work, which is the general rule in this residential institution for developmentally handicapped people. It is this change from day-shift only to rotating 24-hour shifts that gave rise to Mr. Kreider's "demotion" grievance. In fact, he stayed on the same program with the same classification -3- and the same rate of pay. but his working conditions were changed. As a result of this change in working conditions, the grievor became more and more frustrated, and finally'on January 1, 1987, he resigned. There is no .question that the resignation was voluntary and that Mr. Kreider has never attempted to rescind it over the past four years. However, the instant grievance requires as its remedy that he be reinstated into his former position. In this context, the employer's preliminary objections arise. First, the employer says that section 18 (1) ( Crown Emnlovees Collective Barqaininq Act reserves the a) of the exclusive right to management to organize and re-organize the work force and assign work. The employer cited several Grievance Settlement Board decisions to the effect that we have no jurisdiction to review a work assignment unless it was made for disciplinary purposes. (Beauparlant G.S.B. 1203/88, Hendrix G.S.B. 700/86, Tsianq G.S.B. 352/81. Warden G.S.B. 1152/87 and Haladav G.S.B. 94/7t?). We agree with the principles stated in all of those cases that we have no jurisdiction to review the exercise of an exclusive management function unless such exercise cloaked discipline or some arbitrary -4- or discriminatory practice. Next, the employer objects, we have no jurisdiction to reinstate a person to the public service after he has resigned voluntarily. The grievor resigned from the restructured job and now wants to be reinstated in it. The regular day shift job no longer exists. Documents were filed at the hearing to illustrate that the grievor followed through with his oral resignation by a written resignation, the signing of all necessary release documents and the receipt of severance pay. The employer says that if we were to re-appoint the grievor to the public service, we would be ,placing the employer in a position of being in violation of the job posting provisions of Article 4 of the collective agreement, and sections 8 and 19 of the Public Service Act which require that only the Minister or his designate can appoint employees to the public service and only the Minister or his designate can accept resignations. This leads to the next objection of the employer: that is, that the grievor appears to be attempting to avoid the consequences of his resignation by calling it a constructive dismissal. In other words, if he hadn't been "demoted" he wouldn't have quit. First of all, argues the ,employer, there is no room for the common-law concept of constructive dismissal where there is~ a collective agreement and governing legislation that do not provide for it. (McGavin Toastmaster Ltd. and Bernice Letitia Ainscouqh - 5 - et al. El9761 1 S.C.R. 718: The Nova Scotia Government Employees Association and Alexander John Wilson [19811 1 S.C.R. 211; and Bourne vs. Otis Elevator Co. Ltd. (1984) 45 O.R. (2d) 321). All of these cases hold that common-law principles of wrongful dismissal and constructive dismissal have no application where there is a collective agreement and/or governing legislation, as in this case. The "work now, grieve later" rule applies in unionized work places. In addition, of course, this grievance is framed as a demotion case. The alleged constructive dismissal took place some three months later, and could not possibly be considered within the four corners of this grievance. The union, relying on Mantha G.S.B. 423/85 says that we can consider .whether or not someone has been constructively dismissed to determine whether or not there was a true voluntary resignation. In the Mantha case the grievor was so mentally ill when ,he resigned that he didn't really know what he was doing. There the board found that there was not a true resignation, and when the employer failed to allow the employee to rescind his resignation upon being supplied with evidence that the resignation was given when the employee was suffering from a serious mental illness, the board compared it to a constructive dismissal at common-law. t;> .: -6- In our view, Mantha is a very exceptional case, and on its facts has no bearing on the instant case. This was a true resignation, with no attempt at rescission. Union counsel quite rightly points out that if we were inclined to assume jurisdiction to enquire into this alleged constructive dismissal, we could 'reinstate the grievor without violation of the collective agreement or the Public Service Act, as is done in un~just dismissal cases. However, we decline jurisdiction in this case on the following grounds: 1. The grievor was not demoted: there was simply a change in his working conditions. 2. This is a demotion grievance, not a constructive dismissal grievance, and the allegation of constructive dismissal goes far beyond the ambit of this grievance. 3. The grievor resigned knowingly and voluntarily, and is no longer a public servant over whom we have jurisdiction. -l- ~Accordingly, the preliminary objections are upheld, and the grievance is dismissed. DATED at Toronto, this 10th day of December~,. 1990. &-y& E. SEYMOUR, -Member I .- ! ., I I