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HomeMy WebLinkAbout1986-2026.Koh.89-05-04EMPLoYcsDE‘A CO”RONNE DEL’ONTARIO CPMMISSION DE SETTLEMENT REGLEMENT DES GRIEFS Under TEE CROWN EUPLOYEES COLLECTIVE BARGAINING ACT Before TEE GRIEVANCE SETTLIMENT BOARD Between: Before: OPSEU (Koh) Grievor - and - The Crown in Right of Ontario (Ministry of Health) Employer J. Forbes-Roberts - Vice-Chairperson I.J. Thomson - Member R. Trakalo - Member APPEARING FOR A. Ryder TEE GRIEVOR: Counsel Gowling & Henderson Barristers & Solicitors APPEARING FOR M. Quick TEE EMPLOYER: Counsel Legal Services Banch Ministry of Health HEARING: May 3, 1988 In the grievance before this Board the grievor claims that the Employer disciplined him vithout just cause by denying him certain overtime opportunities that vere normally assigned on a rotational basis. Employer counsel raised a preliminary objection to the Board’s jurisdiction to hear the matter. Denying that there had been any discipline imposed, it vas argued that a vork assignment is a legitimate exercise. of management’s rights and by virtue of section 18 (1) of the Crovn Employees Collective Bargaining Act (“C.E.C.B.A.“) is not subject to reviev by this Board. That section states in part: 18 (11 Every collective agreement shall be deemed to pro- vide that it is the exclusive function of the em- ployer to manage, vhich function, vithout limiting the generality of the foregoing, includes the right to determine, (a) . ..assignment . ..of positions and such matters vi11 not be the subject of collec tive bargaining nor come vithin the jurisdiction of a board. The Board reserved on the preliminary untilafter ,~hea~r.ing t~he merits. The grievor vas employed as a technician by the Ministry of Health at the Regional Public Health Laboratory (“the lab”) in London, Ontario. At the relevant time the grievor vas vorklng in the lab’s Clnfcal Microbiology section. The technicians in that section examined specimens to ascertain the presence or absence of certain social diseases. The ascending chain of command vas as follovs. Mr. D. Cole vas the gzievoz’s direct supervisor and Mr. M. Chainauskus vas the Head Technician. In the early spring of 1986 the latter suffered a’ heart attack and vas absent on sick leave until mid- September of that year. Thus for that period Mr. Cole vas in charge of the Clinical Microbiology section. Until the end of 1986 the lab vas open Monday through Saturday and for a half day on Sunday. The Sunday vork had tvo (21 distinguishing features. Flrst, It vas overtime vork and second the assigned technician vorked alone vlthout any superv- ision. Once an employee vas considered capable of performing the tests accurately and quickly vithout supervision he or she became part of a pool of technicians vho vere assigned the Sunday overtime on a rotational basis. This usually amounted to one (1) -2- Sunday in six (6) per employees. In late July of 1986 (in Mr. Chainauskus’ absence) Mr. Cole assigned the grievor to the Sunday overtime pool. Mr. Chainauskus 5th he returned to h reason, by means of a grievor had performed . . testified that on approximately September .is normal duties. Without any apparent records check he vent over all the vork the vhile on Sunday overtime. He unearthed numerous mistakes vhich he deemed to be major. Indeed Mr. Chainauskus judged the grievor’s vork to be so substandard that the latter vas not competent to vork unsupervised, and vas thus ineligible for further Sunday overtime. It should be noted that Mr. Cole had voiced no complaint about the quality or accuracy of the grievor’s overtime vork, nor vas he called to-testify at the hearing. Mr. Chainauskus testified that striking the grievor from the overtime roster vas not a disciplinary act, that indeed the grievor had not done anything meriting discipline. The grievor vas prohibited from Sunday overtime merely because he vas not competent and Mr. Chainauskus sav removal of the grievor’s name from the list as the only practical response. In cross-examination Chainauskus conceded that vhile some of the grievor’s errors vere major, others vere minor. He offered no comparison of the number or severity of errors made by the grievor as against those made by other technicians performing Sunday overtime vork. A number of pieces of correspondence vere filed as exhibits, all concerning Mr. Koh’s performance prior to the events in question. Some is from Cole to Chainkauskus but most 1s from Chainkauskus to the lab Director. What is made clear from the correspondence and the oral testimony heard by this Board is that from their first contact there vas a real animosity behind the grievor and Mr. Chainkauskus. Indeed the grievor seemed to have difficulty getting along vith a number of people, management and bargaining unit members alike. We turn nov to the preliminary objection. The Employer maintained that its-. action vas not disciplinary but rather an exercize of managements rights. Clearly the effect of denying the grievor overtime opportunities vas punitive. He suffered a monetary loss. Hovever does the invocation of section 18 (1) of C.E.C.B.A. prevent the Board from going behind the Employer’s characterization and revleving the substance of the act? The matter vas vell canvased in re:e, (G.S.B. 1091/84, 1092/841. At page 6 Arbitrator Roberts states: The Board finds, hovever, that it does have jurisdiction to reviev the actions of management in this case. The -3- Wtro-PoU case, above, does not stand for the proposition that all actions of management vhich might be characterixed as coming under the RR~& of an exclusive managements rights clause are unrevievable at arbitration. In the vake of @tro-PolicG it vas generally acknovledged that arbitrators still retain the right to reviev for genuineness or good faith a claim of exercise of an exclusive management right, in the sense of ensuring that the claim of management did not mask, titer au, an attempt to circumvent or suppress other provisions of the Collective Agreement. Arbitrator Roberts then goes on to examine an even boader standard of reviev held by some arbitrators. For the purposes of the instant case let us accept that the standard is restricted to one of genuineness or good faith. In the instant case should the Employer’s actions be xer ~~a~fS~~~d~~dd~Xci~l~~~~~~=~ion~ ise of managements discretion or For the folloving reasons ve find the action to not only have been disciplinary, but also to have been unjust. Mr. ChainauslG .’ testified that he vas concerned about the grievor’s vork only insofar as it affected public health and safety. Hovever errors in u of the technicians vork could affect public health and safety. Yet Mr. Chainkauskus chose only to check the arievor’g vork. There vas no evidence that a comparison vas done to see if the grievor vas appreciably less accurate than any of his co-vorkers. Finally if Hr. Chainauskes’ sole concern vas public health and safety surely the grievor vould have been told he vas barred from overtime only until he could demonstrate a level of competence in keeping vith Chain- kauskus’ expectations. NO such cap vas placed on the prohibi- tion. As it happened overtime vas discontinued at the end of December 1986. That does not change the fact that at the germane time dhainuaikes had in effect given the grievor an indefinite suspension from overtime work based on what va deem to ba insufficient facts or justification. -4- The grievance is hereby alloved. The Employer is ordered to make the grievor vhole for any lost overtime opportunities to vhich he vould have been entitled. The Board vi11 remain seized in the event of any difficulty in the implementation of this avard. DATED at Toronto, Ontario this 4th day of Hay, 1989. z .I( Porbe&Rob*rts, Vice-Chairperson // I.J. Thomson, Member R. Trakalo, Member