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HomeMy WebLinkAbout1997-0129.Adamo.99-06-02EMPLOY& DE LA COURONNE DE L’ONJ-ARK) COMMISSION DE SETTLEMENT RCGLEMENT DES GRIEFS 180 DUNDAS STREET WEST SUITE 600, TORONTO ON h&G IZE 180, RUE DUNDAS OUES7; BURE4l.J 800, TORONTO (ON) h&G lZ8 TELEPHONEl-TiLkPHONE : (416) 326- 1388 FACSIMILEl7~L~COPIE : (416) 326-1396 GSB # 0129/97 OPSEU # 97B396 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN Ontario Public Service Employees Union (Dave Adamo) - and - The Crown in Right of Ontario (Ministry of Transportation) BEFORE Randi Hammer Abramsky Vice-Chair FOR THE GRIEVOR Diane Roberts Counsel, Ryder Wright Blair & Doyle Barristers & Solicitors FOR THE EMPLOYER Len Marvy Counsel, Legal Services Branch Management Board Secretariat HEARING April 14, 1999 Grievor Employer GSB No. 0129/97 OPSEU (Dave Adamo) and Ministry of Transportation At issue is whether the Employer violated the displacement rights of the grievor, Dave Adamo, under Article 24.4.1 (d). That provision states, in pertinent part, as follows: 24.4 DISPLACEMENT 24.4.1 An employee who has completed his/her probationary period, who has received notice of lay-off pursuant to Sub-section 24.2, and who has not been assigned in accordance with the criteria of 24.5 to another position shall have the right to displace an employee who shall be identified by the Employer in the following manner: (a)... (b)... (c)... (d) Failing displacement under paragraphs (a), (b) or (c) above, the Employer will review other classes which the employee held either on a full-time basis, or who performed the full range of job duties on a temporary basis for at least twelve (12) months in the same ministry within forty (40) kilometres of the surplus employee’s headquarters. The Employer will identify, in reverse order of seniority, a less senior employee in the class with the maximum salary closest to but not greater than the maximum salary of the surplus employee’s current classification. The identified employee shall be displaced by the surplus employee provided he/she is qualified to perform the work. The grievor asserts that he should have been allowed, under this provision, to displace an employee in the classification of Technician 3 Survey, a classification which he had held in the past. FACTS Mr. Adamo’s continuous service date is June 10, 1977, and at the time of his surplus he held the position of Senior Technician Transportation Construction. He was headquartered in Winona. Previously, he held the positions of Technician 1 Construction and Technician 3 Survey. Initially, Mr. Adamo was offered a displacement opportunity in a Senior Technician Transportation Construction position in Camden East. That opportunity was then rescinded and the Technician 1 Construction position was identified as the “class with the maximum salary closest to but not greater than the maximum salary” of his position of Senior Technician Transportation Construction. Upon review of the seniority list, no one in this classification within forty kilometres was available for displacement. Mr. Adamo was then offered a bump in the classification of Senior Technician Transportation Construction beyond forty kilometres, in Camden East, but he declined. The Union does not challenge the Employer’s initial rescission of the displacement or the “redoing” of it once errors were identified. POSITIONS OF THE PARTIES The Union and the grievor contend that the grievor should have had the opportunity to displace an employee in the Technician 3 Survey classification, a classification which the grievor had held in the past for more than one year. The Employer, relying on OPSEU (Penny) and Ministry of Natural Resources, GSB No. 697196 (Vice Chair Verity)( 1997), contends that it properly complied with Article 24.4.1(d) h w en it identified the Technician 1 Construction classification as the “class with the maximum salary closest to but not greater than” the grievor’s current position. Under Penny, the Ministry asserts that there was no further obligation to consider any other classification that the grievor may have held in the past. The Union does not challenge the Pemy decision or its applicability to this matter. DECISION The outcome of this grievance is controlled by the board’s decision in OPSEU (Penny) and Ministry of Natural Resources, supra. In that case, the grievor, a long service employee who had held many positions over the years, was surplused and there was no available displacement opportunity in the Ministry under Article 24.4.1(a), (b) or (c). The Union argued that under Article 24.4.1(d), the Ministry had to search for a displacement opportunity in any classification previously held by the grievor, not just in the classification with the maximum salary closest to but not greater than the maximum salary of the grievor’s current classification. The board, based on the language of Article 24.4.1(d), dismissed the grievance, concluding that the Ministry properly limited its search to a less senior employee “in the class with the maximum salary closest to but not greater than the maximum salary of the 3 surplus employee’s current classification.” The board held that the Union’s interpretation “appears to suggest an additional step not actually contained in the language of the provision.” (Decision at p. 12) Based on the Penny decision, which I am required to follow. the instant grievance must be dismissed. The Ministry “reviewed” the other classes which the grievor had held for at least twelve months in the same ministry - Technician 1 Construction and Technician 3 Survey. It then attempted to “identify, in reverse order of seniority, a less senior employee in the class with the maximum salary closest to but not greater than the maximum salary of the surplus employee’s current classification” - which was the Technician 1 Construction classification. Since no one in this classification within forty kilometres was available for displacement, the Ministry proceeded to Article 24.4.1 (e). It did not have to search for a displacement opportunity in the Technician 3 Survey classification. To require it to do so would; as set out in Penny, add “an additional step not actually contained in the language of the provision.” Accordingly, under the board’s decision in Penny, supra, the grievance must be dismissed. Issued this 2nd day of June, 1999 in Toronto.