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HomeMy WebLinkAbout2013-1581.Ambrose.15-05-01 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#2013-1581 UNION#2013-0526-0049 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN Ontario Public Service Employees Union (Ambrose) Union - and - The Crown in Right of Ontario (Ministry of Attorney General) Employer BEFORE Loretta Mikus Vice-Chair FOR THE UNION Seung Chi Ontario Public Service Employees Union Grievance Officer FOR THE EMPLOYER Cathy Phan Treasury Board Secretariat Legal Services Branch Counsel HEARING December 3, 2013, February 25, 2015 - 2 - Decision [1] The grievor, Lynne Ambrose filed a grievance in April of 2013 alleging discrimination and harassment. She believed the assignment of three judges to her panel was unfair. The secretaries are usually assigned two judges but she had three on her panel. Additionally two of her judges were newly appointed to the Court therefore creating a greater workload than her colleagues. [2] At the mediation on December 3rd, 2013 a settlement was reached which resolved all outstanding issues between her and the Employer. In early 2015 the Union asked the Board to reconvene to determine whether the Employer had breached the terms of the MOS, specifically paragraphs 1 and 2. They read as follows: 1. The Employer agrees that when the next occasion to change panels arises, that the grievor will have the option for the panel to be altered in such a way where one of the two existing newly appointed judges would be reassigned. The parties understand that the decision concerning who to remove or add would be at management’s discretion. 2. Employer shall restore four (4) Short Term Sick Plan (STSP) credits to the grievor’s credit bank. [3] Subsequent to the execution of the MOS, the next occasion to change panels arose in February of 2014, the grievor was advised that two of the judges on her panel would be removed; one experienced and one newly appointed. There were no issues at the time with any aspect of that reassignment. [4] In January of 2015 the grievor was informed that there was to be another change in her panel. The two judges that had been assigned to her in February of 2014 were being transferred and she was to receive two new judges the grievor considered this to be a breach of the MOS and asked the Board to reconvene to hear her allegations. [5] It was the Union’s position that this latest reassignment was unfair, unreasonable and contrary to the terms and spirit of the MOS. The change in the grievor's panel in 2014 was intended to resolve her issues in the assignment of her panel and her - 3 - workload. This later move places her back in the same position she had been in before the MOS. [6] The Employer maintains that this recent reassignment was done for operational reasons and was not a breach of the MOS. Two of the judges on the grievor’s panel had complained about her performance and had asked to be reassigned to a new panel. The terms of the MOS were intended to apply to the next occasion of reassignment only and not as a permanent reassignment. The Employer is not required to keep the grievor in that assignment forever, nor is it required to seek her approval for a consultation with every future assignment. [7] With respect to Paragraph 2, the Employer has insisted that it complied with its terms as required. It has returned to the grievor’s credit the sick days referred to in that paragraph. This has been explained to the grievor but she claims there is no proof of that repayment. DECISION [8] On the basis of the facts before me I am not persuaded that reassignment in 2015 was a breach of settlement of 2013. Paragraph 1 states that on the NEXT occasion of a reassignment the grievor has the option of having one of her judges moved to another panel. That next occasion occurred in February 2014. Paragraph 1 further states clearly that the decision to assign or reassign judges is in the Employers discretion. The words in Paragraph 1 are clear. The settlement applied only to the next reassignment, which was effected in 2014. There were no complaints about that transfer at the time and the terms of Paragraph 1 have been satisfied. There are no restraints or constraints on future assignments/reassignments. [9] I am unable to find bad faith in the Employer’s decision respecting the 2015 assignment. The terms of Paragraph 1 are clear and unambiguous. I do not find any bad faith in the Employer’s actions. - 4 - [10] With regards to the sick leave credits, the Employer agrees that there had been an unduly long delay in crediting the grievor’s sick bank but insists that it has been done. It should not be difficult for the Employer to show the grievor the details of that transfer. Without any evidence of the payment or non-payment of the sick leave credits, I cannot find that the Employer is in breach of the settlement. Dated at Toronto, Ontario this 1st day of May 2015. Loretta Mikus, Vice-Chair