HomeMy WebLinkAbout2005-2563.Whyte.06-08-28 Decision
Commission de
Crown Employees
Grievance Settlement
règlement des griefs
Board
des employés de la
Couronne
Suite 600 Bureau 600
180 Dundas St. West 180, rue Dundas Ouest
Toronto, Ontario M5G 1Z8 Toronto (Ontario) M5G 1Z8
Tel. (416) 326-1388 Tél. : (416) 326-1388
Fax (416) 326-1396 Téléc. : (416) 326-1396
GSB# 2005-2563, 2006-0052
UNION# 2005-0337-0009, 2006-0337-0001
IN THE MATTER OF AN ARBITRATION
Under
THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT
Before
THE GRIEVANCE SETTLEMENT BOARD
BETWEEN
Ontario Public Service Employees Union
(Whyte)
Union
- and -
The Crown in Right of Ontario
(Ministry of Children and Youth Services)
Employer
BEFORE Vice-Chair
Reva Devins
FOR THE UNION Stephen Giles
Grievance Officer
Ontario Public Service Employees Union
FOR THE EMPLOYER Nicholas Sapp
Employee Relations Advisor
Ministry of Children and Youth Services
TELEPHONE August 21, 2006.
CONFERENCE
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Decision
The parties have agreed to an expedited mediation-arbitration process to resolve grievances at
the Brookside Youth Centre in Cobourg. Although a formal protocol has not been finalized, the
parties have agreed to attempt to settle matters at mediation and, if mediat ion is not successful, to
refer appropriate cases to expedited arbitration. The parties specifi cally agree that the Vice Chair
can hear these matters under Article 22.16 of the collective agreement and that the decision will
be without prejudice or precedent.
On May 1 and 2, 2006, mediation-arbitration was convened at the Brookside Youth Centre in
respect of a large number of outstanding grieva nces. On May 2, 2006, the parties entered into
Minutes of Settlement (MOS) regarding grievances filed by Joanne Whyte. Subsequent to the
signing of the MOS, an issue of interpretation aros e with respect to the application of the MOS to
Grievance dated April 18, 2006.
On consent of the parties, this matter proceeded by way of oral argument provided during a
conference call convened on August 21, 2006 and by wa y of the following Agreed Statement of
Fact:
1. The Grievor is a Records Clerk, Classi fication OAG 8, employed at the Brookside
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Youth Center with a Continuous Service Date of approximately May 7, 1984.
She is represented by the Ontario Public Service Employee?s Union (OPSEU).
2. The Employer is the Brookside Youth Center representing the Ministry of
Children and Youth Services and the Cr own in the Right of the Province of
Ontario.
nd
3. On May 2, 2006, the parties entered into negotiations to settle the Grievor?s
grievances.
4. At the time of the negotiations, the Gr ievor had three active grievances, two of
which were before the GSB, that read as follows:
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OPSEU no. 2005-0337-0009, dated August 11, 2005:
?I Grieve that my Employer has violated the Co llective Agreement, Art. 3, Art. 6, Art. 9,
the WDHP and the Human Code (sic), and any/all other Legislation that applies.
To be made whole. To be given work that is mentally challenging. To adhere to all
medical restriction. Full redress.?
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OPSEU no. 2006-0377-0001, dated February 24, 2006:
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?I grieve that the Employer has failed to pa y me appropriately according to my Dr?s note,
which state ?I may return to a trial of full time hours?.
Full Redress. All monies owing, vac top up for lost time, and anything else I may be
due.?
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Grievance dated April 18, 2006:
?The Employer is systematically responsible for: continuing to direct me to do work that
adversely affects my health, ie. some duties associated with fili ng, change off work
hours, not allowing me to return to full time duties. The employer has chosen to
arbitrarily interpret medical advice and direction from Dr. Pauline Fenty causing undue
physical pain and excessive stress. This actio n is a blatant breach of Article # 3 of the
Collective Agreement; discrimination and ha rassment by DISABILITY. The employer
follows the medical advice and direction provided by my phy sician. It is not acceptable
for the employer to knowingly place my health and safety at risk. The employer has
chosen to overlook my accommodation needs an d continues to focus on the needs of the
institution. The employer knows that it is not appropriate to focus on operational needs
unless undue hardship can be shown. This matter has been brought to Mr. Maguire?s
attention and I can only conclude that the issue is systemic in nature of Mr. Maguire
continues to choose to do nothing about it.
For my hours of work to be returned to 0700-1500 and to work up to 36.25 hours per
week.
For my lunch time to be returned to 1300 to 1345 hours.
For the employer to reimburse all personal cred its applied from April 6 to April 18 to top
up my sala ry.?
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5. On May 2, 2006, a settlement was reached by the parties and signed. The
settlement specifically refers to the three grievances, stating:
?The parties hereto agree to the following terms as full and final settlement without
precedent and without prejudice of the grievances dated April 18, 2006 and OPSEU #?s
2005-0337-0009 & 2006-0337-0001, and any further and/or similar matter on the
following terms: ?
6. Vice Chair Devins is seized of any implementation issues related to the
settlement.
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7. The Grievor has since claimed that the Grievance dated April 18, 2006 was not
included in the Settlement, and is still active.
At the conclusion of oral submissions, the pa rties asked that I render a decision. Having
considered the submissions of the parties, I ha ve determined that the Minutes of Settlement,
dated May 2, 2006 does include the April 18, 2006 grievance. The April 18 grievance was cited
in the Style of Cause and was again set out in the preamble to the MOS. Moreover, as conceded
by the Union, the substance of the April 18, 2006 grievance relates to a continuation of the
Employer?s conduct set out in the previous two grievances. The terms of the MOS address these
issues and attempt to resolve them in a manner that was satisfactory to all of the parties. By the
express terms of the MOS, all three grievances, incl uding the April 18, 2006 grievance, were to
be withdrawn.
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To the extent that either the Union or the Grievor is concerned that the Employer has not
satisfied all of the terms of the MOS, I remain se ized with respect to any and all issues stemming
from the interpretation and application of the settlement.
Dated in Toronto, August 28, 2006
Vice Chair, Reva Devins