HomeMy WebLinkAbout1988-0538.D'Silva.89-01-05 ' ~ ~' CROWNEMPLOY~EES DEL'ONTARIO
"~ , . GRIEVANCE C.OMMISSION DE .~ f.), ¢ ~ .,~. '¥'~- ....
/ / SETTLEMENT REGLEMENT
BOARD DES GRIEFS
t80 DUNDAS STREET WEST, TORONTO, ONTARIO. M5G IZ8- .~JITE 2100 /..; J~-: -.---::z- . 7~ELEPHONE/T£t.~PHONE
180. RUE DUNDAS OUEST, TORONTO, (ONTARIO) MSG I~-.8 - BUREAU 2100
- - - 0538/88
THE CROWN E2~PLOYEES COLLECTIVE BARGAINING ACT
before
-" ' '~ TH~ GRIEVANCE SETTLE:MENT
· . (Ministry of E~vironment') '-
r
Before: N.V. Dissanayake Vice-'Ch~ irperson
: .... T.._Brpwes-Bugden - Member
· :, P.D. Camp . Member
-- ',For'the Griovor: -D. wrigh't .. "
Counsel
Gow]ing & Henderson"
Barristers and Solicitors
For {::he Employert R. You'nger'.'-.
Staff Relations. Offi-cJer : ' '
Ministry of Environment
Hearing: December 1,, .1988
DECISION
This is a grievance wherein Patrick D'Silva alleges
that ~he Employer is "Impeding (his) natural
Progression" and stat~s the settlement de, ired as
"establish natural progression as they~ become
available."
At the commencement of the hearing, counsel for the
Employer raised 'a preliminary objection to~ the Board's ,
jurisdiction to hear this grievance. The parti:,es agreed
that the Board should determine the prelimingry motion .
before proceeding to hear the merits. The parties made
submissions on the motion on the basis of ,an agreed
statement of facts which is as follows:
AGREED STATEMENT OF FACTS
1. The Griever is employed by the Ministry
at its Lakeview Sewage Plant in the Position
of Senior Operator - Thermal Conditioning
Facility (TCF)
2. ~On each shift there is a Shift Engineer
and, Working below the Shift Engineer~, two
Senior Operators, one for TCF and the oth~r in
the Thermal Oxi'dation Facility..(TOX)., The
Senior OperatOr (TOX) for the Griever's Shift
is one Mr. A. Khan. ...
3, In the event of a temporary absence by
the Shift Engineer, either due to illness or
vacation, it is the practice of the EmPloyer
to appoint the Senior Operator (TOX) ' to' fill
that position on a temporary basis. This
l.
3
occurs for absences as little as one shift and
for up to approximately one month at one time.
~ These absences ,average ~out to approximately
one day every three weeks.
4. The Grievor has Greater seniority than
'the .Senior ,Operator' (TOX)~ and,in addition to
familiarity with his own side of. the plant
(TCF) .is' familiar with the'operation of the
TOX side of the plant as a result of a three
month ~'training assignment ron~ the TOX side
which took place early in 1988. The Senior
Operator (TOX) 'is. not%-familiar with the
operation of the TCF side of-the plant.
The Employer's motion objecting .to the Board's
jurisdiction is based on the assertion that the agreed
statementLof facts or the grievance itself does not
allege the violation of any provision of the collective
agreement. 'Counsel submits that the Board has no'
jurisdiction either under section 18~or 19 of CECBA to
~ investigate a complaint which is not based on an
allegation of contravention of the collective agreement.
Counsel for the union relies on article 6,6.~ of
the collective agreement, which reads:
6.6'.1 Where an employee is assigned
temporarily to a Lposition,.Article 4 (Posting
and Filling of Vacancies or New Positions)
shall not apply'except where:
(i)~ the term of a temporary assignment is
greater than six (6) months' duration, and
(ii) the specific dates of the term.are
established at least two (2) months in advance
of the commencement of the temporary
assignment.
Counsel concedes that article 6 only appllies where
the Conditions in (i) and {ii) therein exist, .i and that
since the. temporary assignments here are for 16ss than. 6
months, article 6 cannot ~appi'y. Ho~eve~, it is
counsel's contention that since the par les have
addressed temporary assignments in the ~ollective
agreement, the Board should interpret th~ article
" broadly and infer that the parties intended all
temporary assignments ~i11' be filled reasonably.
Counsel drew the Board's attention to :its past
jurisprudence where it has held that the Boa~d has'the
authority to review the exercise of discretion by
management. :
On a careful review of the submissions of counsel,
rm -the Board has concluded that the Employer's mJtion must
be Upheld. Article 6 is expressly limited to'.temporary
assignments which meet the specific stipulations in
article 6.6.1 (i) and (ii). Article 6.6;.2 pre01udes the
Board from extending' any r~ghts with r~ards to
temporary assignment that do not come within article
6.6.1. The parties have expressly indicated in article
5
6.6~2 tha{ · the only rights under ,the collective
a~r~ement with 'respect' to temporary .assignments are
those' provided ~n article 6,6~1 ' Thus article 6.6.2
6.6'2 ~Except 'a~ provided'in 6.6.1, in no case
shall any provision of '~the Collective
Agreement with respect to the filling of,
. assignmen$.or appointment to a vacancy apply
to temporarY assignments.
The G.$.~.' jU~isp~Ud%n¢6~relied "on by counsel for
the grievor is of no assistance in these circumstances.
In %hose Case's what~-'the.'Board hel~ was that where an
.employee is granted a right Under the collective
agreement, which is subject to the. exercise of
discretion by management, that discretion must be
exercised in accordance with the 'basic eiements of
administrative law concepts. However,. before the
Employer becomes Subject to such a duty, there must be a
right or benefit under the collective agreement. Thus
.in Re Kuyntyes, G.S.B. 513/84, article 54 (now 55)
provided for special and compassionate leave. In
Young, G.S.B. 220/79 reported at (1979) 24 L;A.C. (2d)
145, article 29.1-provided ~or leave without pay. In
both cases the Board held that the management must act
reasonably in exercising its discretion whether'to grant
the benefit in ~uestion.
In contrast, as the Board found above, there is no
right or benefit under the collective agreement which
!-
attaches to temporary assignments which do i not fall
within article 6..6 1 Therefore no question of'
~easonable exercise of management discretion can arise.
For ali of the above reasons,, the Board finds that
it is without jurisdiction ..to entertain thle ;>resent
grievance and the.same is hereby dismisse.d, i
Dated this 5£h day of January, 1989. i
N.V. Dissanayake
. Vice-Chairperson
T. Browes-Bugden
Member ;, ---~
P. Cared
Mo~er