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HomeMy WebLinkAbout1989-0231.Sisson.91-12-04 ONTAF~/O EMPLOYES DE LA COU{~ONNE -.?', ; ....'. - .. CROWN EMPLOYEE$ DEL'ON?A~tO "; GRIEVANCE C,OMMISSION DE SETFLEMENT REGLEMENT BOARD DES GRIEFS 180 DUNDAS ,STREET WEST, SUtTE 2'~00, TORONTO, ONTAF~IO, M5G 1Z8 TELEPHONE/TELEPHONE: (416) 326-1385 180, ~UE DUNDAS OUEST, BUREAU 2t~. TORONTO (ONTARtO). MSG 1Z8 FACSIMILE/T~L~COPlE : (416) 326-7396 231/89 IN THE MATTER OF AN ARBITRATION Under '' THE CROWN EMPLOYEES COLLECTIVE BARGAINING HCT Before' THE GRIEVANCE SETTLEMENT BOARD BETWEEN OPSEU (Sisson) Grievor - and - The Crown in Right of Ontario (Ministry of the Environment) Employer BEFORE: J. Samuels Vice-Chairperson M. Vorster Member M. O'Toole Member FOR THE R. Stoykewych GRIEVOR Counsel Cavalluzzo, Hayes & Shilton Barristers & Solicitors FOR THE I. Werker EMPLOYER Counsel Fraser'& Beatty Barristers & Solicitors HEARING August.28, 1991 The grievor is a Water Well Inspector. In the summer of 1986, he took some training to participate in the Emergency Response Program, which is a procedure introduced in 1986 to deal with after-hours spills and other environmental emergencies. The grievor says that, following this training, he was placed on a duty roster, showing when he was to be on-call or on stand-by, but was later removed from the roster (the Ministry does not agree that he was ever on a ~:o'ster, but, for our purposes, we will assume that he was on the roster and was then removed). Over two years after these events, in November 1988, the grievor filed his grievance, claiming that his rights were violated when he was taken off the roster. It was suggested by counsel for the Union that the Employer violated Articles 15 (Stand-by) and 16 (On-call). There has already been a very similar case before this Board. In Bouchard et al, 1154/88 (Dissanayake), the ~Board dealt with eight grievances alleging a violation of the collective agreement because the grievors were not assigned to the Emergency Response Program roster. The Board held that, pursuant to Article 18(1) of the Crown Employees Collective Bargaining Act, the Ministry had the authority to "organize" and "assign", and the Ministry's decision concerning who would be on the roster was within these exclusive functions of management, therefore the Board did not have authority to deal with the grievances. In our view, our case raises the same issue in all material respects, and we think the Board was correct in Bouchard. For this reason, we will not entertain the grievance. Having come to this conclusion, we will comment on the suggestion that there was a violation of Articles 15 and 16. These provisions say that an employee is entitled to certain compensation when certain defined service is given. In the case of Article 15 (Stand-by), compensation is provided in respect of a period "during which an employee keeps himself available fOr immediate recall to work". In the case of Article 16 (On- call), compenSation is provided in respect of a period "during which an employee is required to be reasonably available for recall to work". Obviously, there was no violation of these provisions. Once the grievor was removed from the ERP roster, he never had to keep himself available for immediate recall to ERP Work (therefore he was never entitled to compensation under Article 15); and he never was required to be reasonably available for recall to ERP work (therefore he was never entitled to compensation under Article 16). Done at London, Ontario, this 4th day of December , 1991. muel~s,. Vice-Chairperson ~~.~ (addendum at:Cached) M. Vorster, Member Toole, Member ADDENDUH BY UNION NOHINEE - HENNO VORSTER RE: OPSEU AND THE MINISTRY OF THE ENVIRONMENT GRIEVANCE OF SISSON I wish to comment not on the conclusion reached by the majority, but rather on the process by which that conclusion was reached. At the outset of the hearing, representatives of both parties gave brief opening statements on the agreed upon facts and the matters in dispute. In the course of his presentation, counsel for the employer stated that the case on which he would be relying was Bouchard et al (Dissanayake), GSB #1145/88, The Board receive~ a copy of the case, and both parties presented comments with respect to its relevance to the matter before us. After a short deliberation, the Board concluded the hearing on the grounds that. "our case raises the same issue in all material respects". /he grievance was not entertained. It goes without saying, therefore, that the grievor's complaint was not heard beyond opening remarks. Evidence was not called and the grievor didn't get the opportunity to say his peace. It was not that the grievance was inarb~trable, just that it was likely to fail, However, because only bare details of the case were heard, the grievor could only have speculated that it failed on the merits. Not being a lawyer nor pretending to be an expert in the law, I look to the grievance arbitration process as the best method in an imperfect world to provide for dispute resolution in an environment that maintains 'positive labour relations. It is not for each grievor to expect to win his or her case, but every grievor has the right to expect they will be fairly heard. Often those of us in' close and frequent contact with the process see each hearing as a somewhat dispassionate step into someone's working life. To most grievor's, however, it is a unique and frightening experience they would sooner avoid, They come to arbitration because they are, at 'least to some degree, convinced they have been wronged. They endure the process and look to the panel to hear them and set it right. We may not agree and the grievance might fail on any of a number of grounds, but we do carry some burden to see that the process serves the parties in 'their ongoing relationship. "Justice must not only be done but it must be seen to be done" applies as onerously here as it does anywhere e~e. The Hinistry may now have a more introspective employee, but not a happier one. Respectfully submitted, [qenno Vorster