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HomeMy WebLinkAbout1988-0996.Koumarelas.89-03-23 G~IE~NCE COffiMISSION DE SE~LEMENT RtGLEMENT BOARD DES GRIEFS ~80 DUNDAS ST~ET WES[ TORONTO, ONTARIO. ~SG ~ZS. SUtTE 2~ T~LEPHONE/TEL~PHONE ~80. RUE DUNDAS OUEST. TORONTO, (ONTARIO; M5G O996/88 IN THE MATTER OF A~ ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before TEk GRIEVANCE SETTLEMENT BOARD Between: OPSEU (Helen Koumarelas) Grlevor - and - The Crown in R~ght of Ontario (Ministry of Community & Social Services) Employer Before: N.V, Dissanayake Vice-Chairperson F, Taylor Member M. O'Toole Member For the Grievor: Susan Ursel Counsel Cornish & Associates Barristers & Solicitors For the Employer: David Cos%eh Counsel L~,gal Se_~v~ ce~ DECISION This Grievance dated 2 Septamber iPE$ reads: I grieve under sec%ion 18 ~hat management by its discriminatory, harassing and stress creating practices has failed %o provide a healthy work environment. The reference in ~ ~he collective agreement between uh~ par~ie~ which reads: 18.1 The Employer shall continue to make reasonable provisions for the safety and health of its employees during the hours of their employment. It is agreed that both the Employer and the Union shall co-operate ~o the fullest extent possible in the prevention of accidents and in the reasonable promotion of safety and health of all employees. The facts underlying the grievance are as follows. The grievor0 Helen Koum~reias, has been employed at the Ministry's South-West Local Office for some six years in the classification of Income ~.laintenance Officer The applicable position specification, which was filed in evidence, se~s out tke "purpose of position": Manage a caseload of income r~aintenance recipients and provide information and practica' advice ~o clients resources. 3 The South-West Local Office employs 6 income maintenance supervisors who report directly to the income Maintenance ManaGer. Under the supervisors, there are 30 !MO's, 2 Handicapped Children's Benefits Workers, one Ei~gibility Review Offj+cer, one Employment Initiatives Counsellor and 7 Income Maintenance Clerks. The aspect of %he job fei a~..~ the provislcn of informatioD and practical advice %o clients who "walk in" or call i-s generally,~=~erred~ to as the "intake function" Over the years the intake function a~ ~he South-West Local Office has been handled in various ways. At one ~ime there was an iHO permanently assigned to that function. At other times it appears that Income Maintenance Clerks have handled that faction. From November, 1987, a rotation system was introduced to deal with the intake function whereby every IMO took a turn as intake officer approximately for one week every 4 or 5 weeks. The grievor was working under this rotation system in July i958. In the previous month or so abe kad ha~ some 9 days off sick. She had not taken a vacation in 2 years, and had aacu~:~la' ~ ~ credits. On July 6, 1958 she mad~ 1988. The Manager, Ms~. Sheiia Judson, advised her that he~ request will be approved despit~ ~= short received bu~ ~ ' ~ '' .~e was advises that he:- case!os~ wi ~.~ reassigned and that she wi~i be assig::~d new duties as required, upon her return from vacation. Ms. Judscn d~d not explain to =he gr±evor why uhe reassignment of her caseload was necessary nor =s %here any indicauior: the grievor asked. There was also no discussion about what the ngw duties of ~he ~rievor would be upon her return, but the-grievor test±fled uhar she "guessed percent" that she will be assigned to intake. The grievor was in fact assigned to the intake function upon her.~eturn from vacau~cn ~., n~5 ~,n~ ~9~. and still in that position at the time of the hearing, although she testified that she has been told that she will be removed from intake in December 1959. Despite the wording of the grievance itse!~, the grievor did not claim at the hearing that the intake job in any way posed a hazard to her-~ealth or safety. The logic of the union counsel's submission is as follows. in requesting for he:: earned vacation, the grievor was purporting to exercise a right or benefi~ under ~he full-time to the intake function. Such retaliation for exercisln~ a health arid sa~ ~y right ' _ ~c~ is ~ v:ola"ion arzicle !8.2. in order for ~his Grievance to succeed, the griever mus~ (a} satisfy the Board that %he griever's reassignment was in fac~ r,.onivazed by managemen%'s desire to penalize her fc.r taking nhe vacation, and (S) that such co~duct constitutes a contravennlon of article i~.!. - The evidence indicates that for sometime there had been d!sccn~en~ among ~h~ iM©'s about the rotating system for the intake function. They felt that it was disruptive for an officer to be taken away from his/her caseload for a week once every 4-5 weeks. This issue became the focus of discussion a= a problem solving forum held between management and staff in April 1988. A consensus was reached at that forum that the existing rotating system was unsatisfactory and that a permanent intake unit should be established. At the time of the griev.sr's '_'tqm:est for vacatio:~, the Locz.' C. fflc= was "x :h~. r;{;w co;':p..ter sysl-;n:. This 6 completed this work only o:'~ appro>:imately half of her caseload of some 475 fires. The Employer agrees -~+a~., in the pas- caseloads emD!oyees going on vac=~sr_ ~-.ave n~5 be~-n reassigr, ef as a general practi-e~, and ~h~- i% was no~ unusual ~or ~c. se caseioa!s ~ :'e~:alr. uzs.=rvic=~.~' ' ~. c.~' ~..~=-' dura~ .on of the vacatlo:%. .However, -'- = s th= Employer'~ position that because of the length of th= grievor's vacatio~ ii.e, 5 weeks)~ her recent absenc~ on sick leave for 9 days (during which her caseioa~ remained unserviced), combined with the fact that these absences coincided wl~h the computer converszo~ .... == Er~= oyer _==~ _~ was necessary to re-assign the grieuor's caseload. The Employer points out =hat the establishment of the permanent intake unit was underway at the time, and that it had decided that the unit should be staffed by a balance of inexperienced and experienced IMO's. When the grievor returned from vacation, %he Employer decided to assign her to that unit to provide the experience and knowledge required by the newly established unit.. The employer s ev~=nc= is ~ needed someone with the grievor's know!=~= ...... and ,~.~.~="~ ri=nee %o wo~'k with 7 not burdened with a caseload (he:' caseioed having been reassignea at the commence,,.~.~. -i,~ h~:' vaca~io:,? it was iocical to assign her %o th= i-~aJ.:e ..... itic. n The union points c~at ts ?asr practice where employees' caseloads have not been reassigned. The urgency 50 require the ~eassi~nr~ent of her caseload. She also op~ned that it was a waste of resources ~=sl~n an exper i'enced IM© =~',,~, a= ~=~-~=i= Co the in.ake unit because in her view that wmrk required significantly less knowledge and sophistication and could even ~e perforn~ed by 2ncome Ma3nt=nance Clerks. In her mi~d the reason for her assignment was mana~ement's displeasure with the fact that she chose to take her vacation a% a time inconvenient to the Employer. On a careful review of the tota!iny of evidence. the Board cannot find that the" 'union's position is supportable. There is no evidence to indicate that Judscn was in any way upsero or ang:'y about %he ~rievor's decision to take vacatic, n. it is ~he managemen~ classification cf IMO. Evan if we assu:ne that thc - ' ' -' ' ' t~e assig:n:.ent o way to e,_~cier:tly use aval able yeso~l'.2es, ~=t n-an ~ssi~t the grievor s c== - ~ ' ~_e. Tr. elfec~ the Board ~_er a motive ~:.:. i. ena,iz= ..... rievor fror~ ~he fact Uhat there was .e deD.nrture from practice ~ ...... ~?~0 the intake un; t. W'e have se~ out above the Employer's explana%ien as 5o why those decisions were taken. Whether er nc .... i~ Board agrees those decisions were not motivated by a desire to Denaiize the grievor for taking vacation. The grievor testified that when she was informed that her caseload will be reassigned she offered to postpone her vacation if she is allowed to retain her caseload, if management was upset about her taking vacaz.w., a~ an ~nco~veniext time, it is reasonable to ~:,~t~,., ~ . ~hat management' .... ns would .... been ail_r~,,~ =red ~-,, the grievor offer, ar.~ that :r. anagement wi' ' agree zo %hat of~=z'. However, ~he evidenc~ is t!'. z t n.a r; a ~ ~-:':'.e n t did nat io~ilTM L. ~r.--~ ' ~ P ..... ' lit ~ ~,.'2i F.,i This grie~,~ance is hereby dlsmisse!. Dated this 23r6 day-of March, 2~89 at Hamilton, N.V. DissanayCke, Vice-Chairperson F. Taylor, Member M.F. O'To~le, Memb, r