Loading...
HomeMy WebLinkAbout2011-3390.Ming.12-11-13 DecisionCrown Employees Grievance Settlement Board Suite 600 180 Dundas St. West Toronto, Ontario M5G 1Z8 Tel. (416) 326-1388 Fax (416) 326-1396 Commission de règlement des griefs des employés de la Couronne Bureau 600 180, rue Dundas Ouest Toronto (Ontario) M5G 1Z8 Tél. : (416) 326-1388 Téléc. : (416) 326-1396 GSB#2011-3390, 2012-1704 UNION#2011-0580-0012, 2012-0580-0010 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN Ontario Public Service Employees Union (Ming) Union - and - The Crown in Right of Ontario (Ministry of Community and Social Services) Employer BEFORE Nimal Dissanayake Vice-Chair FOR THE UNION Jane Letton Ryder Wright Blair & Holmes LLP Barristers and Solicitors FOR THE EMPLOYER Paul Meier Ministry of Government Services Labour Practice Group Counsel HEARING November 6, 2012. - 2 - Decision [1] Two grievances filed by Ms. Lore Ming (“the grievor”), dated December 2, 2011 and June 28, 2012 respectively, came before the Board for mediation/arbitration. Following unsuccessful mediation, the parties agreed to proceed with the latter grievance (GSB file 2012-1704) under the mediation/arbitration procedure set out in article 22.16 of the collective agreement. The union advised that it was withdrawing the grievance dated December 2, 2011 (GSB file 2011-3390). [2] The grievor was employed for approximately 8 years in the position of Electronic Publisher in the Social Assistance and Municipal Operations Branch (SAMO) of the Ministry. On August 2, 2011 she received a surplus notice with a layoff date of February 1, 2012, and opted to work through the notice period. Since no direct assignment or displacement opportunity was identified for her, she was laid off as per the notice. [3] The evidence establishes that the surplussing of the grievor’s position resulted from the modernization of the SAMO branch web-site. The new web-site was much more user friendly than the previous one and enabled users to post information and new documents themselves without going through a specialist intermediary. The grievor had been that specialist before the launch of the new web-site. With the introduction of the new web-site her position of Electronic Publisher was no longer required. The users, SAMO staff, were able to post all information in to the site themselves. Other specialist and technical duties which the grievor previously did were transferred to the IT cluster staff. [4] The union did not dispute that the grievor’s position became surplus as a result of the web- site upgrade. The basis of the grievance is that management misinformed the grievor about the reason for her position becoming surplus. The union asserts that at a pre-notice layoff meeting in July 2011 the grievor was told that her duties would hitherto be performed by the IT cluster staff. However, in June 2012 the grievor became aware that not all of her duties were transferred to the IT cluster. Some of it is performed by employees of the SAMO branch. [5] The union submits that while article 20.1.1 envisages that a lay-off may occur for any reason, once the employer communicates the reason to the affected employee, it should be held to that reason. To allow the employer to give one reason for the surplussing/layoff, and then to - 3 - act differently following the elimination of the position invites bad faith, submits the union. The employer denied that there was any misrepresentation of the reason for the surplussing. However, counsel submitted that even if the union’s facts are accepted, that does not render the surplussing itself improper or in violation of the collective agreement. [6] The Board agrees with the employer. There is no right bestowed on the affected employee under the collective agreement to be informed as to who would be performing his/her duties following the surplussing. More importantly, the splitting of the duties of the grievor’s position between the IT cluster staff and SAMO staff for business and operational reasons is a legitimate exercise of the employer’s management rights. A gratuitous representation, assuming one was made, that management rights would be exercised in a certain way, does not prevent the employer from changing its mind and exercising its management rights differently, so long as it does not adversely impact upon a right the grievor has under the collective agreement. There is no assertion that any collective agreement right was denied to the grievor by the employer’s decision to distribute the duties of the grievor’s position as it did. The employer had the right to do so in the exercise of its management rights under article 2. For the foregoing reasons, the grievance is hereby dismissed. Dated at Toronto this 13th day of November 2012. Nimal Dissanayake, Vice-Chair