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HomeMy WebLinkAbout1988-0205.Czekierda & Kubiak.89-04-28 ~.% · ONTARIO EMPLOYES DE LA COURONNE [ ,.,-~ CROWN EMPLOYEES DE L'ONTARIO ~ GRIEVANCE C,OMMISSION DE SETTLEMENT REGLEMENT BOARD DES GRIEFS 180 DUNDAS STREET WE~T, TORONTO, ONTARIO. MSG lZ8 - SU/TE ~IO0 TELEPHONE/T~I..~:PHONE ~80~ RUE DUNDAS OUEST, TORONTO, (ONTARIO) M5G 1Z8 - BUREAU 2100 (416) 5~8-0688 0205/88 IN TRE MATTER OF AN ARBiTrATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD Between: OPSEU (Czekierda ~ Kublak) Grievor - and - The Crown in Right_ of Ontario (Ministry of Community & Social Services} Employer Before: I.C. Springate Vice-Chairperson J. $olber~ Member G.A. Peckham Member For the Grievor: P. Chapman Counsel 6owl~ng & Henderson For the Employer: W.N. Emersoh Employee Relations Advisor M~n~stry of Community and Social Services. Hear/nos: August 3~, 1988 DECISION The two grievors are employed as residential counsellors by the Hinistry of Community and Social Services. They contend that as a result of a reorganization of job duties they are now required to perform certain tasks formerly performed by employees in a lower classification. The reorganization of job duties did not result in the grievors being reclassified downwards or in a reduction in their pay. In response to the change in their duties the grievors filed identically worded grievances which read as follows: STATEMENT OF GRIEVANCE I grieve I am being unjustly disciplined as a result of the employer requiring me to perform job duties clearly outside of those required in my job description for my classification, and these actions are being applied in an inequitable and discriminatory fashion and as such result in my constructive dismissal. SETTLEHENT DESIRED That management be ordered to cease and desist from the actions described above and allow me to perform the duties described in my job description in a manner that is equitable and non discriminatory. The employer contends that the Board lacks the jurisdiction to inquire into the merits of the grievances. 2 At the hearing union counsel acknowledged that the grievors had not, in fact, been constructively dismissed. She further indicated that the union was not pursuing the contention that the grievors had been disciplined. Counsel did, however, contend that the reorganization of job duties had not been carried out fairly, in part because only certain residential counsellors had been assigned tasks formerly performed by employees in a lower classification. Counsel also contended that the duties assigned to the grievors are not covered by their job descriptions. Union counsel acknowledged that she could not point to any provision in the collective agreement between the parties or in the Crown Employees Collective Barqainin~ Act which had been violated by the employer. The provisions of the Crown Employees Collective Bargaining. Act which relate to these proceedings provide as follows: 18. (1) Every collective agreement shall be deemed to provide that it is the excl'usive function.of the employer to manage, which function, without limiting the generality of the foregoing, includes the right to determine, (a) employment, appointment, complement, organization, assignment, discipline, dismissal, suspension, work methods and procedures, kinds and locations of equipment and classification of positions; and (b) merit system, training and development, appraisal and superannuation, the governing principles of which are subject to review by the'employer with the bargaining agent, and such matters will not be the subject of collective bargaining nor come within the jurisdiction of a board. (2) In addition to any other rights of grievance under a collective agreement, an employee claiming, (a) that his position has been improperly classified; (b) that he has been appraised contrary to the governing principles and standards; or (c) that he has been disciplined'or dismissed or suspended from his employment without just cause, may process such matter in accordance with the §r[evance procedure provided in the collective agreement, and failing final determination under such procedure, the matter may be processed in accordance with the procedure for final'determination applicable under section.19. 19. (1) Every collective agreement shall be deemed to provide that in the event the parties are unable to effect a settlement of any differences between them arising from the interpretation, application, administration or alleged contravention of the agreement, including any question as to whether a matter is arbitrable, such matter may be referred for arbitration to the Grievance Settlement Board and the 8oard after giving full opportunity to the parties to present their evidence and. to make their submissions, shall decide the matter and its decision is final and binding upon the parties and the employees covered by the agreement. Except to the extent that the parties may include certain matters within their collective agreement, and thereby broaden the range Of subjects the 8oard may deal with, this Board derives its jurisdiction solely from the Crown Employees Collective Bargaining Act. Section 19 of the Act allows the BOard to hear and determine disputes arising from the interpretation, application, administration or alleged violation of the collective agreement. Section 18 (2) provides the Board with an independent jurisdiction to adjudicate the claim of an employee that he/she has been improperly classified, appraised contrary to the governing principles and standards or disciplined, dismissed or suspended without just c~use. The Board has no jurisdiction to adjudicate other disputes or disagreements between the parties.. In particular, the Board does not have any inherent jurisdiction to do justice or to provide remedies, no matter how desperately a particular case may call out for relief. In this regard see: Re Halada¥ 94/78 (Swan); Re Tsiane $§2/81 (Jolliffe) and Re OPSEU Union Grievance 68?/84 {Kennedy). zt is not contended that as a result of the reassignment of duties the grievors are now improperly classified, As noted above, at the hearing the union indicated it was not pursuing the claim that the grievors had been constuctively dismissed or disciplined. No'specific provision of the co]]ective agreement is alleged to have been breached. The Union's contentions re]ate solely to the emp]oyer's organization of the work place and its assignment of duties, matters which section 18 (2) of the Act places beyond the jurisdiction of the Board, In the result, we are led to conclude that the objection to arbitrability raised by the employer is well founded and that the grievances must be dismissed. Dated at Ajax, Ontario this 28 day of . Apr~_l, 1989. I.C. Springate /Vice-Chairperson ~(Addemdum) G.A. Peckham - Member Addendum: Janet Solbe=g Union nominee Reference: 0205/88 OPSEU (Czekierda & Kubiak) and The Crown in Right of Ontario (Ministry of Community and Social Services This government (in the midst of an unprecedented economic boom) has mandated its ministries to e~e=cise fiscal restraint. And for this particular facilitY, fiscal restraint has resulted in a we-organization of the workplace. Now, I can't deny that it is the prerogative of management to undertake such a re-organzation and I have therefore concurred in the decision of the Board. BUt, I do admit to feeling a certain uneasiness. Because for the employees involved, the re-organization may add a number of duties to their already heavy workload and force them to minimize the time thef spend on the counselling work for which they are trained and hired. ~'.- That would seem to me a result (which even in the potential) is neither rewarding to the employees nor beneficial to the residents.