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HomeMy WebLinkAbout1988-1274.El-Batrik.92-02-18 ONTARIO EMPL OYeS DE LA COURONNE CROWN EMPLOYEES DE L'ONTARtO GRIEVANCE' C,OMMISSION DE SETTLEMENT REGLEMENT BOARD DES GRIEFS ~80 DUNOAS STREET WEST, SUITE 2100, TORONTO, ONTARIO. M5G IZ8 TELEPHoNE/TE'L£PHONE; (4~6) 326- ~388 180, RUE DUNDAS OLtEST, BUREAU 2100, TORONTO (ONTAR.~OI.. MSG 7Z8 FACSIA4ILEYTE/...~:COPtE : {416.1 326-~396 '3_274/88- Under ' TH~ CROWN EMPLOYEES COLLECTIVE B;~RGAINING &CT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN OPSEU (E1-Batrik) Gri evor The Crown in Right of Ontario (Ministry of Health) Employer BEFOR~: R. Roberts Vice-Chairperson I. Freedman Member M. O'Toole Member FOR THE N. Wilson GRIEVOR Counsel Gowling, Strathy & Henderson Barristers & Solicitors FOR THE D. Costen EMPLOYER Counsel Legal Services Branch Management Board of Cabinet HEARING December 18, 1991 AWARD On November 8,' 1990, this Board issued an award in the present case under which the grievor was "conditiona'lly reinstated with full seniority but without back pay to a reasonably acceptable nursing position within the Ministry other than her former position at Penetanguishene". I__d. at p. 30. We retained jurisdiction pending implementation by the parties of the terms of this award.. on March 15, 1991, counsel for the grievor requested that this panel be reConvened in order to deal with disputes that had arisen between the parties with respect to the interpretation of the award. Thereafter., there were discussions regarding available dates and ultimately, on Dece~xber 18, 1991,. the matters raised by counsel came on for'hearing before our panel. ~ccording to the evidence at the hearing, the grievor, who had been classified as a Nurse 3 General prior to her reinstatement, was 'not offered any alternative positions at this level. Rather, she was offered positions at the Nurse 2 General level. T'hrough her counsel, the grievor protested that employment in one of these positions would constitute a demotion. When she was advised that these were the only positions avaiiable in what the Ministry. understood was the. geographic area she preferred, the grievor accepted one of them under protest, and on January 24, 1991, commenced employment as a Nurse 2 General at the Kingston Psychiatric Hospital. 2 Mr. John callas, the Regional Personnel A~ministrator, who was responsible for human resource concerns originating from the Penetanguishene area, testifie~ that he restricted the search for alternative positions for the grievor to those within the Nurse General classification series. AccOrding to Mr. Callas this was the basic classification for nurses and the three other nursing classifications, Nurse clinic, Nurse-Nursing ~ducation, and Nurse- Public Health, required specializations that the grievor did not possess. Further, he said, positions in these classifications had. significantly higher salary levels than those in the Nurse General classification. AS to the geographic area of the search, Mr. Callas testified that because one of the conditions in the No~ember 8, 1990 award was that the grievor enrol and regularly participate in the programme of the A. T. Walton clinic, Toronto, it was believed likely that positions in the Toronto area would be most satisfactory. According~' he contacted by telephone the Hamilton Psychiatric Hospital, the Queen's Street Hospital, and the Whitby Hospital to gain a general idea of the availability of positions in the Nurse 3 General classification and down at those facilities. When he found out that there were no vacancies in the Nurse 3 General classification, Mr. Callas said, he asked Counsel for the Ministry to contact counsel for the grievor to determine whether there were other areas that might be of interest to her. From this contact,' he learned that the grievor might also be interested in positions at the Kilngston Psychiatric Hospital. This, apparently, was the nearest facility of the Ministry to Ottawa, where the griever was then .residing. He also learned that the griever was not interested in the Hamilton Psychiatric Hospital. Upon receiving this advice, Mr. Callas checked the availability of =positions in the Nurse General classification series in the Kingston Psychiatric Hospital', the Queen's 'St. Hospital and the' Whitby Hospital. Once again, he learned that there were no vacancies in the Nurse 3 General classification; however, there i were vacancies in the Nurse 2 General classification. When he received confirmation that the latter positions were available, he contacted Mr. George J. Kytayko, the Administrator of the Mental Health Centre in Penetanguishene, which was the institution from which the griever originally was dismissed, and advised him of the results of his survey. It was up to Mr. Kytayko, Mr. Callas indicated, to contact his peers in those facilities to advise them of the requirements of our award and gain their assistance in assigning the griever to one of the vacancies. .Mr. Kytayko re?tilled that around the end of November, 1990, he contacted the administrators of the Kingston, Queen's St. and Whitby Hospitals by telephone and letter and received confirmation back that while they had vacancies at the NUrse 2 General level none had vacancies in the Nurse 3 General classification. 4 Shortly after December 17, 1990, Mr. Kytayko testified, he learned from Mr. Callas that of the three hospitals being queried, the grievor preferred Queen's St. in Toronto. He then contacted the Administrator of the Queen's st. Hospital, Mr. V. Hyndman, by telephone to get information about specific vacancies and determine whether the Hospital would be prepared to accept the grievor in one of the available positions. When he found out that the ~rievor would be accepted in one of the Nurse 2 General positions at that facility, he said, he got back to Mr. Callas and advised him that while the job was at the-Nurse 2 General level, he was prepared to grant the grievor salary protection at the level of Nurse 3 General for a period of six months. AfterChristmas, however, Mr. Kytayko said, he learned through Mr. callas that the grievor preferred the' Kingston Psychiatric Hospital and not ~ueen's St. He th~n called the Administrator at Kingston, Mr. W. Barnett, who also indicated that he would be prepared to accept the grievor in one of the positions that were 'available .in the Nurse 2 General classification.' Mr. Barnett requested Mr. Kytayko to have the grievor contact Ms. Bennett, the Director of Nursing at Kingston, to arrange the details. This advice, Mr. Kytayko said, was passed on to Mr. Callas for transmission to grievor and her counsel. Mr. Callas testified that by the time this information became available, the January 8, 1991 deadline established in our original 5 award had passed. It was decided that in order to comply with its terms, the griev0r would be reinstated to the Ministry's payroll effective January 8, 1991. It was also decided to implement Mr. Kytako's offer to'protect the grievor's salary at the Nurse 3 General level for"the first six months. After that, she would receive the salary of a Nurse 2. Counsel for the grievor did not call any witnesses, but entered a considerable number of documents into evidence. Among these were three~excerpts from "Job Mart", a publication of the 'i Human Resources Secretariat, dated November 30, 1990, December ?, 1990, and January 25, 1991. These publications advertised, ~nter alia, an opening in the Nurse 3, Nursing Education classification at the Brockville Psychiatric Hospital and an opening in the classification off Nurse 2, Clinical at the Whitby Hospital? " When Messrs. Callas and Kytayko were asked on cross- examination whether they had included these jobs in their field'of search, they replied that they had not. It was then stipulated between the parties that while the understanding of the Ministry regarding the grievor's preference for placement was at Queen's st., Whitby or Kingston, the grievor did not expressly limit the search to these three places. In fact, the grievor's response regarding her preference was in reaction to initiatives made by the Ministry. In this sense, there appeared to be a degree of miscom~unication between the parties which led Messrs. Callas and 6 Kytayko, in all good faith, to exclude from consideration at least the Brockville Hospital. At the conclusion of the hearing, the submissions of the parties upon the question Whether the Ministry located a reasonably acceptable position to which the grievor might be properly reinstated were roughly broken down into three categories: (1) Reasonableness in the scope of management's search regarding the classification series and duties of'the proffered positions; (2) Reasonableness in the geographic scope of the search; and, (3) Reasonableness in the wage level ultimately assigned to the position accepted by the grievor. On the first question, reasonableness regarding the classification series searched, i.e., Nurse General, we find on the evidence that the Ministry was reasonable. Mr. Callas indicated that the other classification series for nurses required specializations the grievor did not have and naturally carried with them appropriately higher wage rates. We do not think that it would have been in accordance with the tenor of our original award for the Ministry to look at vacancies in higher classifications that, given our pronouncements regarding seniority, would have resulted in a promotion. 7 As indicated .by the Vice Chair in the course of argument, however, the Board did contemplate that lesser positions' than Nurse 3 General might be acceptable. We refer in this regard to our original award, where we made express reference to the grievor's performing general nursing duties after she was terminated. Id., at p. 29. If management had not considered the potential for reinstatement to lOwer-rated positions, the award would not have been satisfied. As to the second question, reasonableness in the geographic scope of the search, the evidence indicated that the search was less than flawless. Through some miscommunication between the parties, locations such as Brockville were not considered. We do not, however, find. that this flaw was sufficient to affect the overall reasonableness of the entire process. In this regard, we note that the position from Broc~ville that was advertised in "Job Mart" was for the 'higher classification of Nurse 3, Nursing Education. It was not in the classification of Nurse 3 General. As to the third question, reasonableness in the wage level ultimately assigned to the gri.evor, we have some difficUlty. While we anticipated that the grievor might well be reinstated to a position with lesser duties and responsibilities than her former position, we did not anticipate that it would be reasonable to demote her, wage-w~se, after six months had passed. It was our expectation tha~ ifreinstatement to a lesser position occurred the 8 grievor would be red-circled at the wage rate applied to her former classification until the rate of the new classification were to reach the same level, or until the grievor was promoted, whichever were to come first. We recognize that the grievor currently' is commuting to her job in Kingston from the Ottawa area and this is not the most convenient arrangement for her. The Board expresses the hope that in time promotion to a higher classification in a more convenient location will.become available to her. As to moving and relocation expenses, however, we did not contemplate in our original award that these would be paid by the Ministry. Considering all of the~ above, we hereby order tha~ for the period from April 1, 1991 onward, the gr[evor be red-circled at the wage rate applicable to the Nurse 3 General classification as Of April 1, 1991, and that she remain at that wage rate until the rate of her new classification reaches the same level or the grievor is · promoted to a position in a classification with a higher wage rate, whichever comes first. DATED at London, Ontario, Chis 18~h day of February, 1992 · I. ~eedman, Union Member M. O'Toole, Employer Member o