HomeMy WebLinkAbout1987-2542 Van Der Akker 89-01-17EMPLOYES DE LA COUHONNF
DE L ON TAR/@
GRIEVANCE COMMISSION DE
SETTLEMENT REGLEMENT
BOARD DES GRIEFS
180 DUNDAS STMET WEST, TORONTO, ONTARIO. MSG 128-SUITE2100
180, RUE DUNDAS OUEST. TORONTO. (ONTARIO) MSG 128 -BUREAU 2100
IN THE MATTBR OF AN ARBIRUTIOH
Under
THE CROWN BMPLOYEBS COLLECTIVE BARQAIlfIlfG ACT
EWf ore
THE GRIEVANCE SETTLEYIIBXC BOARD
Between : OPSEU (Van Dcr Akkcr)
Grf evor
The Crown In Rlght of Ontario
(Ministry of Correctional Services)
Employer
Before: B. Flsher
I. Freedman
D. Montrose
Vlce-Chalrper~on
Uember
Member
For the Grlevor: I. Roland
Counsel
Gowllng and Fenderaon
Barristers and Soiicltors
'For the Employer: C. Taylor'
Staff Relations Officer
Fuman Resources Sec~~tarlat
Hearings:
DECISION
The grievor is a Correctional Officer 2 at the Maplehurst Correctional Centre
in Milton. Tbe grievance states
as follows:
I grieve that on December 18 1987 1have been exposed
to hmarrmtw by Mr. A.E. dearl~vein the sense o
repeated disaimihatory use of mctw:
*&stTto unit4 in msignrnents according to
7.IS ljh and
dis ikesfor them
In essence, this grievance involves a complaint by the grievor that be was
assigned certain work duties contrary to a shift schedule. There was a shift schedule
in place at Maplehurst which designated not only the hours of work of the employee but
also the work location. On December 18, 1987 the work location of the grievor was
changed without notice and apparently as a result of that change the grievor became ill
and did not work. The grievor claimed that the change in the work assignment was a
form of harassment and claimed that he is entitled to receive full compensation for the
shift that he missed due to his illness.
The employer brought a preliminary objection on the basis of lack of
jurisdiction of the Board to hear this grievance. Oral reasons were given at the close
of the hearing upholding the objection and therefore, dismissing the grievance with
written reasons to follow.
The Union's position is that Article 10of the Collective Agreement entitled
"Shift Schedules" applies to this case and since the employee was not given proper
notice of the change
in his shift, there has been a violation of the Collective Agreement.
However, in order for this theory to be correct, it must be found that the purpose of
Article 10was not only to regulate the time in which an employee worked but also the
content of his work assignment. It was admitted by the Union that the work
assignment given to the grievor, contrary to the shift schedule, was within his job
description and in fact it was agreed that at various times during the schedule the
grievor would perform the work that he objected to. Management relied on the case of
Tsiamg 352/81, (Jolliffe, Vice-Chairperson). This was a casein which the grievor was
complaining that she was not given enough work in relation to a certain word processing
machine and instead was spending the bulk of her time on a telex machine unlike the
other people in her similar category. At page
8 of that decision, the following words
. .
are found,
We have not been reed to any language therein whiclz
would re ire the employer to assi to
a gn'evor a 'Ifair
share " ofie word processin wor&noigned to
incumbents of the position
fescribed in Exhibits #3 and #4
nor do we find
the Agreement. 9prvvbion to that effect andwhere in
deed it k unlike or at least,
doubtful that the pades could
I & agree to such a
requirement. The Act spec$ia resemes to the
employer's certain exclusive n' hts set out in sub-section
1 of Section 18 of the Crown 6mployees Collective
Bargaining Act.
.. In assigning to Ms. Ts less word
processing than what b assigned to othenTe employer,
m our view, k exerrkin the function of "organization,
assignment
... work met ffoh and procedures, kinds and
locations of e ipment... training and development"
referred to in iection 18(1). How these things aredone
may often be regarded @.some as arbitmy, unfair or
meqwtable, but they arem law and inpmctice part of a
management functlon
This Board wholly adopts the statement of law referred to above. It is clear
that the purpose of Article 10is to compensate employees for changes in the time that
they are required to work, not of the content. The content of their work is an
exclusive management function insofar as it properly forms part of the job description of
the position.
Similarly, there is no terminology with respect to "harassment" in the
Collective Agreement and this allegation itself cannot form the basis of a grievance
unless there is also a specific violation of the Collective Agreement upon which a
grievance is based.
Even if there was jurisdiction, this grievor would not be entitled to any relief
beclue a violation of Artide 10 rimply a-oLu tk,lr,ir required to pay a
premium if the shift is changed with less advanced notice than required by the section.
However, the remedy of
a premium is only available to an employee who actually works
the shift. In this case, the grievor became ill presumably as a result of the content
change in the shift and was paid his full sick leave entitlement. Even if there was
jxrisdicrior, there would be no financial remedy available to the grievor.
Therefore, for the reasons referred to above, the grievance is dismissed.
Dated at Toronto, this 17th day of January , 1989.
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