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HomeMy WebLinkAbout1990-0057.Kennedy.94-02-14 -- ,,-¿. . , .~ " ,',- P" . .;,. ,~", ONTARIO EMPLOYES DE LA COURONNE I ,',>', " . CROWN EMPLOYEES DE L'ONTARIO ... ','~ . . ,..,. ,. > ill' ",," GRIEVANCE COMMISSION DE :ç 1111 SETTLEMENT . REGLEMENT BOARD , ' , DES GRIEFS ISO DUNDAS STREET WEST, SUITE 2100, TOPONTO, ONTARIO, MSG lZS TELEPHONE fTELEPHONE: (416) 326- ¡ 388 780, RUE DUNDAS OUEST, BUREAU, 2 100, TORONTO (ONTARIO), MSG lZ8 FACSIMILEfTELÉCOPIE: (416) 326-1396 57/90 IN THE HATTER OF AN ARBITRATION Onder THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before , THE GRIEVANCE SETTLEMENT BOARD BETWEEN OPSEU (Kennedy) Grievor - and - The Crown in Right of ontario (Ministry of Correctional services) Employer BEFORE T. Wilson Vice-Chairperson J. Carruthers Member M. O'Toole Member FOR THE A. Ryder GRIEVOR Counsel Ryder, Whitaker, Wright Barristers & Solicitors { 'FOR THE J. Benedict EMPLOYER Manager, Staff Relations & Compensation Ministry of Correctional Services ,HEARING July 19, 1990 , j 2 DECISION The Grievor is a Correctional Officer 2 (C02) at the Maplehurst Corrections Centre. He grieves that he has been discrimìnated against with regards to the frequency of his internal work place transfers, i.e. that he has been transferred more frequently (8 times) than most other officers in that institution. He requests by way of remedy that he be transferred back to· Unit 3 on the grounds that he was only there, eight months; that he not incur any loss of credits because of this move and that he be awarded any credits owed to him because of this move and that he be given 24 hours credit lieu time for stress caused by this discriminatory action. The issues in this case are reasonably narrow, The Grievor was given a I number of transfers that on the evidence were at least more than most other Correctional Officers were receiving at Maplehurst. The last of these came in January 1 1990 at a time of personal stress ,for the Grievor since his father was terminally ill. By way of backgroljnd, there are six areas or units at Maplehurst of which five are referred to as units. There are 16 CO's per unit in Units 1, 2 & 3 plus three Sergeants and for our purposes they are the relevant areas: Maplehurst is an all male inmate institution, including a young offenders area. The Grievor has substantial experience as a CO and a good record. Since 1978, he has been transferred eight times of which I I J five were individual transfers. He was most recently assigned to Unit 3 in November, ( ., 3 1988. He testified that he thought the number of his transfers put him near the top of - . the frequency of transfers. There are some COs who have been rarely transferred. In the fall of 1989 a pending vacancy developed in Unit 3. A C02 named Sheppard was given that position and was still there àt the time of the hearing. He , had only a few years experience. It was about this time that the Grievor became Chief 0 Steward of the union local and that he learned that his father was terminally ill. He spoke to Sergeant Lydia Dearing, his supervisor, to advise her of his personal situation. She and other members of the staff of Unit 3 offered assistance jf he needed it. About a week later he was informed that he would be transferred to Unit 1 in January, 1990. A letter dated December 19, 1989, from Mr. P. McNabb the Senior Assistant Superintendent, informed him that the transfer would take place on January 8,1990. It went on to state: A number of staff moves are being made at this time to satisfy training and developmental needs and to improve the balance of experience across the institution. The Grievor expressed his concerns about such a move to Mr. Schut one ofthe Unit 3 sergeants and a meeting with Mr. Cummeford, the Superintendant of Maplehurst was arranged. However, Mr. Cummeford refused to postpone the Grievor's transfer until after the death of the Grievor's father. By memorandum dated December 22, 1989, the Grievor applied for the position comìng open in Unit 3 as a result of a resignation, but on January 16, 1990, Mr. P. McNabb replied that moving the Grievor at that time back to Unit 3 would be "disruptive and untimely". The Grievor testified " 4 that he believed that the vacant slot was filled in December by a Mr. Currie. On November 27, 1989, C02 Sheppard had been moved to Unit 3 as a result of an opening arising from a competÜion. In cross-examination, the GrievC?r agreed that there are probably about 133 C02s at Maplehurst. The issue of rotation of staff had been raised at an Employee Relations Committee Meeting on November 23, 1989, and the Superintendent is shown in the minutes as stating that rotation: will be conducted on a fair and equitable manner. A number of factors will be considered in order that the decision made provides for an experience which will enhance the employee's skills and increase his/her efficiency as a correctional officer. The Griever further agreed that most of his reassignments had been for developmental and training purposes, The Grievor produced a list of his transfers since 1989. There were a number of reasons for the various transfers. He admitted that with the transfer in January 1990 his old crew at Unit 3 worked the same shift as he was at Unit 1 but of course he could not leave the unit while working. In Re· examination, the Grievor stated that Unit 1 does assessments and the Grievor stated that it usually follows a move to school and therefore it made no sense to transfer him there from Unit 3 i.e. from Unit 1 to Unit 3 and then back to Unit 1 , Furthermore, the longterm people were in General duties and Unit 5, were not moved in the December moves and still had not been moved by the time of hearing. Peter McNabb, the Senior Assistant Superintendent, and the author of the December '19 letter, testified for the Ministry. He had, held that position tor a year and ·' ,. 5 . f , four months at th~ time of the hearing. Prior to that he had been a Shift Supervisor. His duUes include being in charge of o+rations and staffing. He had discussed rotation of staff r with the Superintendent in' October 1989. Under the previous I administration t there had ,been annual staffl rotation and under thB one previous to that none at all. He, favoured the rotation in January which fitted with the compressed working schedule. He spoke to the managirs in all the work areas advising them that he intended to make moves and asked thbm to look at staff who might benefit from a move or that they thought could increaJe their o~n knowledge and get use out 01 I, the experience. They submitted names to tim. In the Grievor's case, McNabb want~d to strengthen the Unit 1 staff and the Grievor could provide that strength because of his experience. McNabb made handwritteÅ notes at that time of the transfers. There were seventeen. He wanted to give staff l much training as he could; it is diffic~lt to get staff to move when they have been w+<ing in the same place for a I,ong time. He did have a discussion with the Grievor, but he could not see how the move would be so traumatic for the Grievor. In cross-examination, McNabb admitted that he did not make an assessment I ' " of how long each officer had been in a unl He did not put the policy in writing for the managers, He still contended that Kennedy had the experience he needed for Unit 1. He could only move some at a time. He Jas new to his own job and the question of moving people who had been on the saje job was not in his mind a serious issue. He stated that he did not know that the G!ievor's father was terminally ill. just that he I .' . " 6 was ill. He agreed that he probably did not balance, the Grievor's own, experience by transferring him to Unit 1, In reply evidence, Kennedy testified that the retiring employee left Unit 3 on December 28, 1989 and that his position was still vacant at the time Kennedy was transferred, He said that he had told McNabb that his father's còndition was serious and deteriorating, He had told Commeford and the sergeants that it \Nas terminal. Reasons for Decision Mr. Ryder's basic argument was that the conduct of management showed that , the management explanations for transferring the Grievor were not credible. At that point what would have been within management rights transforms the decision into unjust discipline within s. 18(2) of the CECB Act. In this case, there was a reasonable resolution of the Grievor's request, namely, by giving the Grievor the slot opening on December 28. Furthermore, the policy of equitable transfers enunciated by McNabb did not stand up on the facts. Mr. Benedict for the Ministry submitted that there has to be bad faith before there can be any review of the decision. It would not be enough, to show that a decision was arbitrary or even stupid. I do not doubt on this evidence that the reason for the transfer of the Grievor is known. McNabb repeatedly stated in evidence that he felt the need to have Kennedy in Unit 1 to provide the needed strength of Kennedy's experience. In other words, Kennedy was the man for the job as McNabb saw it. It may not have been .. " 7 equitable in terms. of his articulated policy at that time for making transfers; it may have fallen short of the broad policy of giving experience and training to the transfees: he admitted all that. beHeve McNabb when he told us that it was for improving the staff in Unit 1 that he made the Kennedy transfer, an obvio~sly valid administrative reason., The evidence does not support a conclusion that there was some hidden reason behind that, i.e.that it was cover for some iJlegitimate purpose. Therefore, the transfer was not discrimination against Kennedy. It may have been insensitive, given Kennedy's personal problems but that does not make it discriminatory nor disciplinary. Accordingly, the grievance is dismissed. . Dated at Toronto this14day of February; 1994 ;f~J¡/i~ Thomas H. Wilson Vice-Chair Addendum attached. J. Carruthers Member 7111 O':J~ . _.,___"__-un____. _OCT._' ,_. ". -..--------- Michael O'Toole Member ~_~_ . . ..~.. u ...---" ~ , ;; t ~. .. Addendum Re: 'GSB File #57/90 OPSEU & Kennedy I concur with the Board decision. It is my personal feelings, as a member, of the panel, that the senior management showed no real concerns for the grievor's personal feelings. in regards to his father being terminally ill. The lack of sensitivity during the griever's stressful situation leaves a lot to be desired.· This panel member finds it difficult to comprehend why it was necessary to proceed to arbitration to resolve this issue. Surely matters of this nature ought to be able to be worked out between management and staff within the institution. -- An element of common sense and co-operation would, we think, go a long , way in alleviating the problem that arœe in this matter. Hoping, the above is taken in the manner and spirit in which it is intended. Signed ~ ~ . C. Carruthers JC:cr ufoN: 175 - I I ~ R-96% 4164456208 02-10-94 12: 17PM P002 #50