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HomeMy WebLinkAbout1991-3094.Union.92-11-05 ONTARIO EMPLOY~ DE LA COURONNE CROWN EMPLOYEES DE L 'ONTA GRiEYANCE C,OMMISSlON DE SETTLEMENT REGLEMENT BOARD DES GRIEFS 180 DUNDAS STREET WEST, SUITE 2~00, TORONTO, ONTARIO, MSG 1Z~ ' TELEPHONE/TELEPHONE: (4 ~Sj 326- 1388 3094/9[ : ZN TEE ~TTE~ OF ~ ~T~T~ON ' Under ' ' ' T~ CRO~ ~P~YEES COLLECTI~ B~INING ~ Before THE ~RIEV~CR SETTLE~ BO~ BE~EN . ' : ' OPSEU (Union) -- ~rtevor :-;. - an~ - The Cro~ ~n Right of Ontario (Minist~ of Transportati~) . ~ployer' . BEFORE: W. Low Vice-Chairperson P, Klym Member M. O'T6ole Member :~ FOR THE G. Leeb ' UNION Ontario Public Service Employees Union /FOR THE M. Failes EMPLOYER Counsel Winkler,~ Filion & Wakely Barristers & Solicitors HE~RING October 16, 1992 '.: DECISION The Union grieves that the Employer, the Ministry of Transportation, is in violation of Article 4 of the Collective Agreement in that it has failed to post two positions in the Drivers and Vehicles office at Thunder Bay. The facts are essentially not in contention. In April 1991, two employees, one being a full,time Field Office Dual Clerk and the other being a part-time Field Office Dual Clerk, left their positions. Originally, the Employer .posted the job of the full- time Dual Clerk and a competition was held, but prior to the position being awarded, the competition was cancelled. There was no funding for the position. It is agreed that the full-time and part-time Dual Clerk positions continued on the organization chart but were not filled because they were unfunded. The Employer also states that it had no desire to fill these positions. It is the position of the Union that the Employer has all along determined that there was sufficient work to be done by an employee on a full-time basis and that therefore a vacancy occurred which the Employer was obligated to post. The evidence discloses that :there were two persons who did, to some degree, the job of a Dual Clerk during the period of 2 time following the cancellation.of the competition and-the date of this hearing. One was. Maria Coultha~d,~ who was.employed on a contract which ran from October. 21,. 1991, to January 24,~ 19~2. The evidence of Donna de Giacomo,~who supervises the Dual Clerks, was that Ms. Coulthard.was learning to do the transactions involved in the_ Dual Clerk job and, at the time that her contract terminated, she was able to do approximately 50% of the job. In'June 1992, Ron Brunelle, a.person taking part in the vocational 'rehabilitation plan operated by the Workers' Compensation Board, was assigned to the Thunder Bay office for vocational rehabilitation. Pursuant to the assigrument, Mr. Brunelle was paid by the Workers' Compensation Board, and his "employment target" was that of. Field Office Clerk. Mr. Brunelle started his rehabilitation..training at the Ministry in June of 1992, and at the termination of his rehabilitation period, which was October 16, 1992, he was able to carry out most of the functions of a Dual Clerk. On January 28, 1992, the Employer sent. a memorandum to the Enforcement Officers in the Thunder' Bay district scheduling them for one week training secondments starting February 3, 1992, and running to April 10, 1992.. This direction, however, was rescinded' on January 31, 1992, and these training secondments did not take place. 3 The Ministry has had summer students for a number of years, but these students work only for the summer period and according to the evidence of Ms. de Giacomo, do not function as Dual Clerks, although they do from tim~ to time perform some of the tasks that a Dual Clerk performs. Certain other members of the complement of staff at the Thunder Bay office also have overlapping duties with the Dual Clerk. The ,,0/0 Clerks" have, as part of their job specification, occasional relief functions for the Dual Clerks and the receptionist has, as part of her job duties, the duty of marking written examinations' which is also a function carried out by the Dual Clerks. ~ On cross-examination, it was the evidence of Ms. de Giacomo that it is the Union's position that the Minist~ of Transportation has not brought in someone on a permanent and regular basis to do the work which .should be done to ser~e the public at a desired level of efficiencY. The test for determining whether or not Article 4 of the Collective Agreement has been violated is whether or not the Employer believes it is necessary to fill the posi'tion, and the linchpin in determining this issue is whether the work continued to be done on a permanent and on-going basis. The Union does not Seriously dispute that the Employer has a right to determine complement and to assign and distribute workload. Article 4 .is designed to prevent the Employer from filling., in'substance, a vacancy, without posting it. In order that there be a violation of Article 4, there has to be: (a) a vacancy, and (b) a filling of that vacancy. There may be situations where a vacancy .existb on .paper but is not filled, whether because of lack of funding or.because the Employer has made a decision to reduce the level of service to the public regardless of the funding available. Such circumstances would fall within_the Employer's right to determine com lement. ..~ In Re Oil, Chemical and Atomic Workers, Local 9-599.and Tidewater Oil Co. ~Canada) Ltd. (1~63), 14 L.A.C., 233, Reville, J. stated that the term "vacancy" doe~ not mean merely an emptiness or a vacant position in the dictionary 'sense of the Germ, but "means a vacant position for which there is adequate work in the opinion of the company to justify the filling of that position". In R_ge Horton Steel Work Ltd. and united Steelworkers, Local 3598, 3 L.A.C. (2d),.54, Arbitrator Rayner held that a job of hooker which had been vacated an~. W~s.~ubseque~tl¥ being performed for at most four hours a day did not constit6te 'sufficient work available in order to require that the job be posted. On the facts before us, it is not possible to come to the conclusion that the work which ha~ been done by the full-time and regular part-time Dual Clerks prior to their departure from the Employer continued to be done on a permanent and on-going basis. 5 At best, the work which they had'done was continued on a sporadic an~ intermittent basis. The evidence indicates that the summer students did not take the place or do the work of the departed D'~al Clerks. Ms. Coulthard was there onlylfrom October to January 1992. Her contract was terminated before the'date of the grievance. Even if we were to take into account the eVidence of what happened afte~ the date of the grievance, namely Mr. Brunelle's Workers' 'Compensation training program activities from June to October of 1992, the evidence still falls far short of demonstrating that the work formerly done by the full-time and part-time Dual Clerks prior to their departure in the spring of 1991 continued to be done on a permanent and on-going basis. 'For the foregoing reasons, ~he grievance will be dismissed. DATED this 5th day of Nogembe£,1992. W. LOW _ Vice_Chairperson · KLYM /- Member · ~O'TOOLE ._ Member '