HomeMy WebLinkAbout2012-3698.Hill.13-12-06 DecisionCrown Employees
Grievance Settlement
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180 Dundas St. West
Toronto, Ontario M5G 1Z8
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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#2012-3698
UNION#2012-0369-0075
IN THE MATTER OF AN ARBITRATION
Under
THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT
Before
THE GRIEVANCE SETTLEMENT BOARD
BETWEEN
Ontario Public Service Employees Union
(Hill) Union
- and -
The Crown in Right of Ontario
(Ministry of Community Safety and Correctional Services) Employer
BEFORE Felicity D. Briggs Vice-Chair
FOR THE UNION Nick Mustari
Ontario Public Service Employees Union
Grievance Officer
FOR THE EMPLOYER Bart Nowak
Ministry of Government Services
Centre For Employee Relations
Employee Relations Advisor
HEARING November 26, 2013
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Decision
[1] The Employer and the Union at the Central North Correctional Centre agreed to participate
in the Expedited Mediation-Arbitration process in accordance with the negotiated Protocol.
Many of the grievances were settled through that process. However, a few grievances
remained unresolved and therefore require a decision from this Board. The Protocol
provides that decisions will be issued within a relatively short period of time after the
actual mediation sessions and will be without reasons. Further, the decision is to be without
prejudice and precedent.
[2] Christopher Hill is a Correctional Officer who applied for permanent posted position of
Maintenance Mechanic 3. At the time, there was one position open. The grievor was not
the successful candidate. However, shortly after the new incumbent was notified that he
won the competition, he was seconded into a management position thereby leaving the
original posted Maintenance Mechanic 3 position temporarily vacant.
[3] According to the Employer, the grievor was the next highest scoring applicant and for that
reason Mr. Hill was approached and asked if he was interested in working as a MM3 on a
temporary basis. The grievor agreed. The grievor worked in this position from June 3, 2012
until September 3, 2012.
[4] The grievor and the Employer signed a Secondment Agreement that set out the terms
including hourly wage on June 26, 2012. This agreement stated that the grievor would be
paid the hourly wage of an MM3.
[5] The issue between the parties is whether the grievor should have been paid at his
Correctional Officer wage for the period between June 3, 2012 – when he began working
as an MM3 – and June 26, 2012 – when he agreed in the Secondment Agreement to the
lower wage of the MM3.
[6] The Union takes the position that the grievor was temporarily assigned by the Employer to
do the work of an MM3 and according to Article 8.3 should be paid the hourly wage of a
Correctional Officer for all work performed in the temporary MM3 position up to the date
the Secondment Agreement was signed. The Employer disagrees that it “assigned” the
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work to the grievor. Rather, knowing of his interest in the work and his standing in the
competition process, the Employer approached the grievor and offered a temporary
assignment.
[7] The Union suggested that Re Ministry of Transportation and OPSEU (Hannah)
GSB#2115/99 (Harris) is of assistance to this issue and leads to a finding in favour of the
grievor. I agree that the decision is of assistance, but I disagree that it would lead to the
grievance being upheld. Indeed, Vice Chair Harris said that one of the four elements
necessary to being paid at one’s original rate is that the Employer assigned an employee
from one position to another. The Collective Agreement states that there must be “work
reasonably available for him in the position from which he was assigned.” It was noted in
Re Hannah (supra), when the grievor applied for and received a temporary position, there
was no assignment “from’ one position “to” another. It was further said that when the
Employer permitted an employee to leave the CO position to take the temporary position
he was “temporarily assigned ‘to’ the Drive Examiner position, but he was not assigned
‘from’ the Correctional Officer position. He was permitted to take his leave.
[8] In this case, the Employer did not require the grievor to take the assignment. For whatever
reason, he was offered a temporary assignment and he agreed. He knew the terms and
conditions because he had very recently applied for a permanent position. It is also worthy
of note that shortly after the onset of the assignment he specifically agreed that the rate of
pay is that of an MM3.
[9] Like the grievor in Re Hannah (supra), the grievor was not assigned the work. He was
offered and took a temporary assignment.
[10] Accordingly, the grievance is denied.
Dated at Toronto, Ontario this 6th day of December 2013.
Felicity D. Briggs, Vice-Chair