HomeMy WebLinkAbout2007-3819.Birkhof.13-07-09 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#2007-3819, 2008-2730
UNION#2008-0368-0021, 2008-0368-0112
IN THE MATTER OF AN ARBITRATION
Under
THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT
Before
THE GRIEVANCE SETTLEMENT BOARD
BETWEEN
Ontario Public Service Employees Union
(Birkhof) Union
- and -
The Crown in Right of Ontario
(Ministry of Community Safety and Correctional Services) Employer
BEFORE Joseph D. Carrier Vice-Chair
FOR THE UNION Jackie Crawford and Laura Josephson
Ontario Public Service Employees Union
Grievance Officers
FOR THE EMPLOYER Laura McCready and Antoinette Karner
Ministry of Government Services
Centre for Employee Relations
Employee Relations Advisors
HEARING June 24, 2013
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Decision
[1] This grievance of Mr. Gary (Scott) Birkhof was referred to mediation/arbitration in
accordance with Article 22.16 of the Collective Agreement between OPSEU (The Union) and
The Ontario Crown, Ministry of Community Safety and Correctional Services (M.C.S.C.S., The
Employer). There was no challenge to my jurisdiction to hear and rule on the matter. Further,
the Parties requested the decision be issued on a without precedent or prejudice basis, and
without extensive reasons.
[2] There are two grievances before me filed by Mr. Birkhof:
1) January 28, 2008 – Mr. Birkhof complained that he was improperly denied “the
opportunity to apply for the Driver’s job”.
2) September 12, 2008 – Mr. Birkhof alleged harassment and discrimination, in
particular, with respect to comments made by a member of the management team at
the Lindsay Correctional Facility.
He seeks monetary and related relief in respect to these allegations.
[3] With respect to the first grievance, Mr. Birkhof advised that he was discouraged from
bidding on a posting for a Driver’s position because a superintendent had told him the job could
entail occasional inmate contact as backup to another corrections officer. After the posting had
closed he was given to understand that the superintendent had been mistaken. Mr. Birkhof was
then occupying an accommodated position in a (non-physical) desk job due to a work-related
hand injury. In particular, he was restricted from physical contact with inmates.
[4] Having considered the submissions of the Parties, I am not satisfied that Mr. Birkhof, in
view of the nature of his injury and consequent restrictions, would have been qualified to
perform the Driver’s duties whether or not the job did require inmate contact. Furthermore, the
comment of the Superintendent, even if mistaken, was not sufficient in itself to deprive Mr.
Birkhof of his right to bid the job. Additionally, it did not establish a new right, extraneous to
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the collective agreement and individual to Mr. Birkhof himself, which might be said to have
been violated. Finally, the wage rate for the Driver position was identical to that he was receiving
in his accommodated job.
[5] Accordingly, I find no basis upon which to sustain this grievance. It is, therefore,
dismissed.
[6] The second grievance related, again, to a comment made by a member of management.
On this occasion, Mr. Birkhof felt offended and demeaned when told that the accommodated
desk job or position he was then occupying was really a “non-job” or “no job at all”.
[7] I am sympathetic to Mr. Birkhof since the comment was ill-advised and inappropriate;
however, it was an isolated incident and there was no evidence of ongoing harassment by this
individual. It might better have been made the subject of a complaint pursuant to the Employer’s
Workplace Harassment and Discrimination Policy and process.
[8] Furthermore, there was no evidence offered that, aside from feeling offended at the time,
Mr. Birkhof suffered any ongoing psychological trauma; neither did he seek treatment.
[9] In the circumstances, while the comment was inappropriate, it was an isolated incident
and insufficient to attract a declaration against the Employer or monetary relief for the Grievor.
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[10] Having heard and considered the submissions of the Parties, I conclude that the grievance
is denied.
Dated at Toronto, Ontario this 9th day of July 2013.
Joseph D. Carrier, Vice-Chair